Ingram v Minister of Justice

• Jurisdiction: South Africa
• Judge: Vieyra AJ
• Judgment Date: 17 April 1962
• Citation: 1962 (3) SA 225 (W)
• Hearing Date: 16 March 1962
• Court: Witwatersrand Local Division

G Vieyra, A.J.:

This is an action brought against the Minister of Justice in which the plaintiff seeks payment of damages for an alleged H wrongful arrest and detention by members of the Police Force. It is common cause that on the morning of the 17th day of February, 1960 a constable, H. J. de Kock, proceeded to the home of the plaintiff at Roseneath Estate, Lawley, armed with a warrant of arrest issued by the magistrate of Roodepoort on the 17th December, 1959, in respect of one Julian LuRoc Ingram, which is the plaintiff's name, and acting upon the authority so conferred upon him, arrested the plaintiff and took him to the Kliptown Police Station. He was taken before the magistrate at Kliptown early that afternoon and thereafter, on the basis

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of a warrant of removal issued by the additional magistrate of Kliptown, taken to the police station at Roodepoort where he was kept over night in a cell. The next morning he was released at about 9 a.m.

A The plaintiff contends that he was not the person mentioned in the warrant. The defendant, as appears from the further particulars to the plea supplied on the 21st December, 1960, maintains that the warrant was intended for the plaintiff, but that in the event of the Court finding that this was not so immunity is sought for the arrest and further detention by reason of the provisions of sec. 31 of Act 56 of 1955 in B that a constable de Kock, who effected the arrest, did so believing in good faith and on reasonable grounds that the plaintiff was the person mentioned in the warrant. The defendant's plea also states that in executing the warrant, constable de Kock was not acting as the defendant's servant, but was merely fulfilling a duty imposed upon him by the Legislature.

C The warrant in question was issued consequent upon an alleged failure by the person named therein to appear before the magistrate at Roodepoort on the 3rd December, 1959, in answer to a criminal summons charging him with a failure to submit a return of income on the D appropriate form in terms of the Income Tax Act, 31 of 1941. The magistrate's power to issue such a warrant is derived from sec. 309 (3) of the Criminal Procedure Act, 56 of 1955, and in terms of sec. 29 peace officers are bound and admonished to 'obey and execute every warrant of arrest'. The persons who executed the warrant and subsequently detained the plaintiff are members of the Police Force and accordingly are peace E officers. It follows that if the warrant was intended for the plaintiff, in other words if he was the person mentioned in the warrant as the person to be arrested, those responsible for the arrest and subsequent detention were acting lawfully. The first question then is whether the plaintiff was the person mentioned in the warrant.

A perusal of the summons itself shows that the person summoned was F Julian LuRoc Ingram and that it was alleged that the accused therein named had failed to submit the return in question for the year ended 30th June, 1959, after being required to do so by the Receiver of Revenue for the district of Roodepoort. It appears clearly from the evidence of Mr. Bronkhorst, a senior official in the Receiver's office at Roodepoort, as also from that of Mrs. Dicks, who is in the G registration department of the same office, that the files of both the plaintiff and his son were under the care of the Roodepoort Receiver, the father's file being No. 0173025 and his son's No. 0173020. Mr. Bronkhorst stated that summonses, such as the one here in question, are prepared in the Receiver's office and sent to the clerk of the H magistrate's court for issue. Accordingly the summons must be presumed to be intended by the clerk to be for the person for whom the Receiver intends it to be. He is definite too on the point that the summons issued against Julian LuRoc Ingram, being the one in question in this case, was not intended for the father, but for the son. In corroboration thereof he pointed to the file number appearing on the summons which is 0173020. The result then is that there can be no doubt that this summons was not intended for the plaintiff. But Mr. le Roux, who appeared for the defendant, has submitted that in view of the fact that the summons

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bore the same name as that of the plaintiff, even though it was not intended for him, and in view of the fact that it was served on him personally, it was the plaintiff who should have appeared in court on the date fixed and it was therefore the plaintiff who was in default and A accordingly the warrant was intended for him. I find this submission untenable. The warrant expressly authorises the arrest of the Julian LuRoc Ingram who was duly summoned to appear on the 3rd December, 1959, and failed to do so. That person was not the father. I have no doubt therefore that the warrant was not intended for the plaintiff, but for his son who bore the same name.

B Having then come to the conclusion that the warrant of arrest was not intended for the plaintiff by the issuing authority, the next question to be decided in this case is whether the persons responsible for the plaintiff's arrest and his subsequent detention can seek the immunity provided in sec. 31 (1) of the Criminal Procedure Act, 56 of 1955. This section reads as follows:

C 'Any person authorised to execute a warrant of arrest, who arrests a person, believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from responsibility to the same extent and subject to the same provisions as if the person arrested had been the person named in the warrant.'

Mr. Merber for the plaintiff has submitted that the onus lies on the D...