De Klerk v Minister of Police

• Jurisdiction: South Africa
• Judge: B R Tokota AJ
• Judgment Date: 09 September 2016
• Docket Number: 77688/2014
• Court: Gauteng Division, Pretoria

Tokota AJ

[1]

The trial in this matter took place on 4 and 5 August 2016. After both parties had closed their respective cases Counsel requested that

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they be allowed to submit written submissions in the next two weeks after the matter was heard. It was agreed that after receipt of the heads of argument I should decide whether or not I need to hear oral argument.

[2]

Heads of argument were received by me after having been filed on 29 August 2016. Having read the heads of argument I have decided that it is not necessary to hear oral argument and therefore this judgment need not be delayed any further. I am indebted to both Counsel for their heads of argument.

[3]

The plaintiff, Bryan De Klerk, set the civil litigation in motion and claimed a sum of R1 million from the Minister of Police, the defendant. This claim is based on the alleged unlawful arrest (claiming R500 000.00) and malicious prosecution (claiming R500 00.00), it being alleged that on 21 December 2012 members of the police acting within the course and scope of their duties with the defendant unlawfully arrested the plaintiff without a warrant and set the law in motion by instituting criminal proceedings against him. In his pleadings the plaintiff claimed that he was detained for 8 days. The Minister is cited herein in his official capacity as the nominal defendant in terms of the State Liability Act 20 of 1957. The defendant denies liability as alleged or at all.

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[4]

The facts of the case are largely common cause and can be summarised as follows:

4.1

On 11 December 2012 one Rael Lasarow, the complainant, laid a complaint of assault with intent to do grievous bodily harm allegedly perpetrated upon him by the plaintiff. The plaintiff was then requested by one detective constable Virginia Lerato Ndala to report at the police station Sandton to answer to the allegations.

4.2

On 21 December 2012 the plaintiff duly reported at the police station at about 8h30. His constitutional rights were explained to him after he was informed that Rael Lasarow had laid a charge of assault with intent to do grievous bodily harm against him. At the time Constable Ndala was in possession of the statement of the complainant and a medical report in the form of J88 indicating injuries sustained as a result of the alleged assault.

4.3

At the police station the plaintiff elected not to make any statement but stated that he would make a statement in Court. From his own version he was not detained in the cells. He was immediately taken to Court by means of a Citi Golf. He was informed that he

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was being taken to Court and a bail of R1000 was recommended subject of course to the decision of the prosecutor. He was taken to Court at about 10h13.

4.4

When he arrived in court he was detained in the holding cell but was immediately called to court where he was remanded in custody. He did not apply for bail and no explanation was proffered as to why he did not do so.

4.5

He was then kept in prison until he was released on the eighth day. He was informed that the complainant had withdrawn the charges against him.

[5]

As can be gleaned from the above facts the plaintiff was taken to Court within two hours of arrival at the police station. Therefore the detention, if any, by the members of the police cannot be said to have been eight days as claimed. Once he was taken to Court they had no control over him and any decision to detain him further was as a result of the Court order by the Magistrate.

[6]

The plaintiff explained how it came about that he was accused of having committed a crime of assault. He testified that he had an

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argument with the complainant, who was his employer, over his salary. An altercation ensued whilst they were arguing in the office and in the process he pushed the complainant who bumped against a wall picture hence he was injured.

[7]

It appears that the primary basis upon which it is alleged that the arrest was unlawful is because it took place without a warrant.

[8]

Mr Myburgh, who appeared for the plaintiff, contended in his written submissions, that assault is not one of the offences mentioned in schedule 1 of the Criminal Procedure Act and therefore by implication the police should have applied for a warrant of arrest or should not have arrested the plaintiff at all. He contended that during cross-examination the investigating officer said she arrested the plaintiff because he did not want to make a statement. This argument overlooks the fact that the police are also entitled to arrest without a warrant for 'any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine.'

[9]

Furthermore when detective Ndala was cross-examined she categorically stated that she was entitled to arrest the plaintiff without a warrant because she suspected that he had committed an offence in schedule 1 of the Criminal Procedure Act. She was questioned as to

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why she did not think of any other means of securing the plaintiff's attendance to Court other than the arrest without a warrant. She replied that she used her discretion. I did...