Gellman v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Salduker J and Levenberg AJ
• Judgment Date: 02 November 2007
• Docket Number: A3009/2007
• Hearing Date: 23 August 2007
• Counsel: Appellant pro per. M Sello for the respondent.
• Court: Witwatersrand Local Division

Gellman v Minister of Safety and Security
2008 (1) SACR 446 (W)

2008 (1) SACR p446

Citation	2008 (1) SACR 446 (W)
Case No	A3009/2007
Court	Witwatersrand Local Division
Judge	Salduker J and Levenberg AJ
Heard	August 23, 2007
Judgment	November 2, 2007
Counsel	Appellant pro per.; M Sello for the respondent.

Flynote : Sleutelwoorde

Arrest — Law relating to arrest — Arrest without a warrant — Act 51 of 1977 s 40(1)(b) — Even where police officer reasonably suspecting that Schedule 1 offence committed, he or she having to exercise discretion in determining whether to arrest suspect without warrant, to obtain warrant, or to issue summons — In absence of exigent circumstances, such as risk I of imminent flight, officer should at very least obtain warrant before effecting arrest — If police officer entitled to effect arrest without warrant whenever he or she having reasonable grounds for suspicion, s 43 of Criminal Procedure Act 51 of 1977 rendered nugatory and irrelevant — Where apparent that arresting officer having no basis for concluding that suspect's attendance at court could not be procured by service of J summons, this less drastic method to be considered.

2008 (1) SACR p447

Arrest — Law relating to arrest — Arrest without a warrant — Act 51 of 1977 A s 40(1)(b) — Proper approach of peace officer in determining whether or not to effect arrest without warrant — Guidelines set out — Guidelines not amounting to absolute rules — Police having wide discretion in determining whether or not to effect warrantless arrest.

Arrest — Without warrant — Legality of — Criminal Procedure Act 51 of 1977, B s 40(1)(b) — Peace officer authorised to arrest without warrant person reasonably suspected of having committed Schedule 1 offence — Whether suspicion reasonable — Arresting officer relying entirely on unsatisfactory and ambivalent statement obtained from complainant, coupled with appellant's admission of having pointed firearm at complainant — Inherent contradictions and improbabilities in statement — Appellant quite possibly C having good reason to point firearm — Nothing in statement alone providing reasonable grounds for suspecting appellant of committing Schedule 1 offence — Arresting officer not critically evaluating very limited 'evidence' at his disposal before carrying out arrest — Making no attempt to supplement unsatisfactory witness statement by seeking out corroborative evidence — Accordingly, on evidence available to him, not reasonable for D arresting officer to have suspected appellant of having committed Schedule 1 offence.

Damages — Measure of — For unlawful arrest — Appellant arrested without warrant — No reasonable suspicion of Schedule 1 offence having been committed — Detained in cell for 48 hours with potentially dangerous prisoners — Suffering humiliation before employees and colleagues — E Eighty thousand rand appropriate award for general damages — Two thousand rand, being appellant's legal expenses incurred in obtaining bail, awarded as special damages.

Headnote : Kopnota

The appellant, who was an attorney and the owner of a granite-cutting factory, F had become involved in an altercation with one of his employees, T, after which T had begun to smash pieces of granite and to damage items of equipment. T had also thrown a slab of granite at the appellant and chased him into the factory with another piece of granite in her hand, leading the appellant to fear further attack. The appellant thereupon drew a revolver, pointed it at T, and told her to leave, which she did. A few days later the G appellant was requested to make a statement at the local police station. He did so voluntarily, and was then arrested without a warrant on suspicion of having unlawfully pointed a firearm, and of having committed theft. The latter charge arose from the allegation that the appellant had refused to release T's handbag into the custody of another of his employees. After his arrest he was taken back to the factory in order to lock and secure the H premises, and was paraded in handcuffs before his employees. His request for police bail was refused and he was held in a cell with other prisoners for a period in excess of 48 hours. During this time he suffered the humiliation of being seen in the cell by a number of his fellow attorneys, and was also deprived of access to his heart medication. Subsequently, after bail had been granted, prosecutors withdrew the charges. His claim for damages was I dismissed in a magistrates' court on the grounds that his arrest had been lawful, since he had been reasonably suspected of having committed an offence contemplated in Schedule 1 to the Criminal Procedure Act 51 of 1977.

Held, that the delict in issue was that of wrongful deprivation of liberty. An unlawful arrest constituted a wrongful deprivation of liberty, and the J

2008 (1) SACR p448

A imprisonment that followed such an arrest was a continuation thereof. Every arrest and imprisonment were prima facie unlawful in the absence of a valid justification, and in the present matter the question was whether or not the arrest and imprisonment had been justified. (Paragraphs [50] - [52] at 457d - f.)

Held, further, that s 40(1) of the Criminal Procedure Act provided that a peace B officer might, without a warrant, arrest any person whom he reasonably suspected of having committed a Schedule 1 offence. The offence of pointing a firearm without good reason to do so, as set out in s 120(6) of the Firearms Control Act 60 of 2000, was a Schedule 1 offence. (Paragraphs [54] - [60] at 458c - h.)

Held, further, that it was clear, though, that there was no risk of the appellant's C fleeing or failing to stand trial. The arresting officer had telephoned him before attending at his premises. He would never have given the appellant such a warning if he had harboured any concern that he might flee. (Paragraph [61] at 458i.)

Held, further, that the central issue, therefore, was whether the deprivation of liberty had been justified. This, in turn, gave rise to two questions: firstly, D whether the arresting officer could reasonably have suspected the appellant of having committed theft or of having pointed a firearm without good reason to do so; and secondly, if there was such a reasonable suspicion, whether a peace officer could effect an arrest without a warrant when there were no exigent circumstances that would prevent him from obtaining a warrant before effecting the arrest. (Paragraphs [63] - [65] at 459a - c.)

As to the first question

E Held, that the arresting officer had relied entirely on the unsatisfactory and somewhat ambivalent statement that he had obtained from T, coupled with the appellant's admission that he had pointed the firearm at T. Apart from the inherent contradictions and improbabilities in the statement, it could be F inferred therefrom that T had been engaged in an act of malicious damage to the appellant's property; and that he would, in such circumstances, have had good reason to point the firearm at T. Nothing in the statement alone, therefore, provided reasonable grounds for suspecting the appellant of a violation of s 120(6) of the Firearms Control Act. (Paragraphs [73] - [74] at 460h - 461a.)

Held, further, as to the allegation of theft, there was nothing in T's statement to G suggest that property in her possession had been removed without her consent, or that the appellant had had any intention of depriving her of her property. The arresting officer had not critically evaluated the very limited 'evidence' at his disposal before carrying out the arrest. He had made no attempt to supplement the unsatisfactory witness statement by seeking out H corroborative evidence; neither had he made reasonable enquiries as to whether there were grounds for suspecting the appellant of having committed a Schedule 1 offence. (Paragraphs [75] - [78] at 461b - f.)

Held, accordingly, on the evidence available to him it was not reasonable for the arresting officer to have suspected the appellant of having committed a Schedule 1 offence. (Paragraph [80] at 461g.)

As to the second question

I Held, that the practice of effecting warrantless arrests on the strength of a sworn statement only was all too prevalent. Before arresting someone on the strength of a statement the police must consider whether the version set out in the statement appeared probable. If no exigent circumstances existed they should preferably seek corroborative evidence; an arrest was not J a substitute for good police work. Even where a policeman formed a

2008 (1) SACR p449

reasonable suspicion that a Schedule 1 offence had been committed, he or A she had to exercise a discretion in determining whether to effect a warrantless arrest, to obtain a warrant, or to issue a summons. In the absence of exigent circumstances, such as the risk of imminent flight, the officer should at the very least obtain a warrant before effecting the arrest. If a police officer was entitled to effect an arrest without a warrant whenever he or she had reasonable grounds for suspicion, s 43 of the Act, which B contemplated the issue of a warrant, would be nugatory and irrelevant. It was also apparent that the arresting officer had had no basis for concluding that the appellant's attendance at court could not be procured by the service of a summons upon him; accordingly, he should have considered this less drastic method. (Paragraphs [82] - [89] at 461i - 462h.)

Held, further, the court having reviewed recent authority on whether or not arrest C should be employed only as a last resort, that the approach of a peace officer in determining whether or not to make a warrantless arrest should be as follows: (1) The officer should consider whether there were reasonable grounds to suspect that the person to be...