Gulyas v Minister of Law and Order

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Baker J
• Judgment Date: 05 May 1986
• Citation: 1986 (3) SA 934 (C)

Baker J:

On 23 March 1984 plaintiff in this action was divorced by his wife, apparently because she had formed an attachment for a certain Staschen. Plaintiff's own short temper may have had something to do with the breakdown of the marriage. On 24 March plaintiff went to Staschen's house B in Staschen's absence and did some damage to the latter's furniture and certain other household items. When Staschen returned home he took note of the damage and proceeded to the police station where he laid a charge of malicious damage. He also complained to the police that plaintiff had threatened to assault him. C There were apparently further threats against Staschen on 3 April, over the telephone, though plaintiff denied these threats. Staschen promptly went to the police at Brackenfell and requested protection against the plaintiff. A certain Sgt Jacobs thereupon telephoned plaintiff at home and without identifying himself (so plaintiff said) peremptorily ordered plaintiff to report to the Brackenfell police station. When D plaintiff asked who was speaking, Jacobs refused to say. He also allegedly refused to say why plaintiff should come to the police station.

The plea avers that plaintiff used foul and obscene language to Sgt Jacobs over the telephone. Plaintiff thereupon put the telephone down. A matter of about eight minutes later Jacobs, E with another sergeant (Rossouw), arrived at plaintiff's house. An altercation ensued. The two policemen arrested plaintiff, forcibly putting handcuffs on him and forcibly putting him into their van. In the course of the arrest plaintiff suffered certain injuries. The details are not relevant. At the end of the first day of the hearing counsel presented the Court with a F request to decide a "special case under Rule 33 (1)" which would have the effect of curtailing the proceedings. It was by then reasonably clear (in so far as it can be clear where only part of one version had been heard) that plaintiff was a quick-tempered man who had probaly been most rude to Sgt Jacobs over the telephone; that Jacobs and Rossouw had come to "reason" with plaintiff about his threats to Staschen, and when G met with more bad language had decided to arrest him summarily, without a warrant, for the foul language over the telephone (a contravention of the Post Office Act 44 of 1958, read with reg H24 promulgated thereunder); that plaintiff had resisted arrest and in the course of the struggle with the two police officials had received certain injuries. In the result H the "special case" was put before the Court for its determination. It reads as follows:

"Special Case under Rule 33 (1).

1.

The parties agree that the only issue for determination is whether, in the circumstances set forth below, the arrest of the plaintiff on 3 April 1984 without a warrant of arrest was lawful, which I depends on the question whether the offence referred to hereunder was committed in the "presence" of the peace officer concerned within the meaning of s 40 (1) (a) of the Criminal Procedure Act 51 of 1977.

2.

The offence referred to is that mentioned in Government Gazette 1191 dated 1 July 1977 under reference H24, as read with the provisions of the definition of "the Act" in s 1, the provisions of ss J 110 and 119A of the Post Office Act 44 of 1958.

Baker J

3.

A For the purposes of determination of the above question, the following is agreed:

3.1

that Sgt Jacobs was a peace officer, within the meaning of s 40 of the Criminal Procedure Act 1977, at all material times hereto and more particularly on 3 April 1984;

3.2

B that on the evening of 3 April 1984, at approximately 18h00, one Staschen (a member of the public) requested the said Jacobs at the Brackenfell Police Station to contact plaintiff and warn plaintiff to refrain from threatening the said Staschen;

3.3

that Sgt Jacobs, having established the C telephone number of the plaintiff as 901 - 1500 on strength of that number having been given to him, thereafter checked against the name and identity of the plaintiff in the telephone directory and also against the name, telephone number and address of the plaintiff in a dossier which was kept with reference to the plaintiff at the Brackenfell Police Station, telephoned plaintiff and identified himself as Sgt D Jacobs from the Brackenfell Police Station;

3.4

that Sgt Jacobs asked whether the person answering the telephone was Michael Gulyas, which was confirmed by the person who answered the telephone;

3.5

that during the course of the ensuing E telephone conversation plaintiff used insulting and/or indecent and/or obscene language over the telephone;

3.6

that the language was so used over a "telecommunication line" within the meaning of the said regulation;

3.7

that Sgt Jacobs thereupon proceeded to the F house of plaintiff in order to warn plaintiff to desist from threatening the said Staschen and also to desist from using insulting and/or indecent and/or obscene language over the telephone;

3.8

that, upon his arrival at the home of plaintiff, it became apparent to Sgt Jacobs that plaintiff did not intend to pay any heed to the warnings which were given to him;

3.9

G that Sgt Jacobs thereupon decided to arrest plaintiff for a contravention of the said regulation, with a view to charging plaintiff with that offence and bringing him to trial;

3.10

that plaintiff was charged with, inter alia, that offence on the evening of 3 April 1984 H after his arrival at the Brackenfell Police Station, and that he was brought to trial on that charge thereafter;

3.11

that plaintiff resided at 14 Mimosa Street, Brackenfell, which address was reached by the said Sgt Jacobs approximately eight minutes after the telephone call referred to above;

3.12

I that plaintiff did not deny that he had used the said insulting and/or indecent and/or obscene language when confronted therewith by Sergeant Jacobs.

4.

It is further agreed that, if it is found that the arrest was unlawful, the plaintiff will be entitled to judgment as follows:

4.1

payment of R6 000;

4.2

interest thereon at the rate of 20% per J annum from date of judgment to date of payment;

Baker J

4.3

costs of suit, including the qualifying fees A of Dr Smith and Dr Visser.

5.

Conversely, if it is found that the arrest was lawful, it is agreed that judgment should be entered in favour of defendant with costs."

It is common cause that the use of insulting, indecent, obscene, blasphemous or threatening language over a B telecommunication line is a punishable offence (reg H24 as framed under s 119A (1) (g) of the Post Office Act 44 of 1958, and published in GGR 1191 of 1 July 1977). "Telecommunication line" is defined as including a telephone, inter alia (see chap 1 of the regulations). These regulations are part of the Act (see definition of "This Act" in s 1 of the Act) and there is a C general penalty section covering this offence (s 110). The details need not concern us. The inquiry is whether cursing a policeman over the telephone is an offence committed in that policeman's presence.

The special case does not, however, set out the full story; certain allegations by defendant should have been added to the catalogue of facts to be assumed by the Court for the purpose D of this judgment. The relevant facts seem to me to be this:

(1)

The offence postulated by s 40 (1) (a) was one that could only be committed over a telecommunication line;

(2)

the identify of the offender was correctly E established: the offender was plaintiff.

(3)

Sergeant Jacobs did not go to plaintiff's house to arrest him for using punishable language over the telephone but to warn him to stop threatening Staschen and to stop using objectionable language to the police.

(4)

Only when plaintiff manifested an intention to ignore F the warning did Sgt Jacobs decide to arrest and in fact forcibly arrested plaintiff for the use of objectionable language over the telephone.

(5)

The objectionable language had been uttered probably well over ten minutes before the arrest was effected; Sgt Jacobs took eight minutes to reach plaintiff's house, then must have spent several minutes G remonstrating with him.

(6)

I draw attention to the fact that the "special case" makes no mention of Sgt Rossouw, who according to plaintiff accompanied Sgt Jacobs to plaintiff's house and helped to arrest him. The Rule 37 minute reflects that plaintiff's legal advisers requested sight of Sgt Rossouw's pocket book and that defendant agreed to H produce it if it could be found. The declaration (para 3) alleges that plaintiff was assaulted by Sgt Jacobs "and one other member of the South African Police"; in para 6 it is alleged that he was unlawfully arrested by Jacobs "and one other member of the South African Police"; para 7 alleges that he was I detained "by the said members of the South African Police"; the further particulars supplied by plaintiff identify this "other member" of the police as Sgt Rossouw and allege that both policemen assaulted plaintiff; the plea admits that Jacobs arrested plaintiff for the offence charged (para 3.1) and that Rossouw helped Jacobs to arrest plaintiff (paras 3.2 and 5.1); the plea further admits that the two policement used "matige geweld" to overcome J plaintiff's resistance to arrest, by flattening

Baker J

A plaintiff to the floor, handcuffing him and forcing him into the police vehicle (para 3.3). It is perfectly clear that on defendant's own pleadings Sgt Rossouw was involved with Sgt Jacobs in the arrest of plaintiff. In the circumstances Sgt Rossouw should have been mentioned in the "special case" as a B participant in the arrest of plaintiff.

(7)

That is not all. There remains the matter of the alleged assault upon plaintiff. The plea admits the use...