De Klerk v Minister of Police

• Jurisdiction: South Africa
• Judge: Shongwe ADP, Leach JA, Majiedt JA, Rogers AJA and Hughes AJA
• Judgment Date: 28 March 2018
• Docket Number: 329/17 [2018] ZASCA 45
• Hearing Date: 08 March 2018
• Counsel: SJ Myburgh for the appellant. MS Phaswane (with DD Mosama) for the respondent.
• Court: Supreme Court of Appeal

Shongwe ADP (Majiedt JA and Hughes AJA concurring):

[1] This appeal concerns a delictual damages claim resulting from an alleged unlawful arrest and detention. The appellant, Mr Bryan James de Klerk, was arrested on a charge of assault with intent to do grievous bodily harm on 21 December 2012 and appeared in court on the same C day. He was remanded in custody at Johannesburg Prison until he was released on 28 December 2012 after the complainant withdrew the complaint. On 23 October 2014 the appellant issued summons against the Minister of Police claiming damages for unlawful arrest and detention and malicious prosecution in the sum of R1 million. The High Court dismissed the claim with costs and the subsequent application for D leave to appeal suffered the same fate. The appeal is with leave of this court.

[2] The facts are largely common cause, save for the lawfulness or otherwise of the arrest and the quantum of the damages. The appellant E testified that the complainant owed him money for services rendered. He went to the complainant's office on 11 December 2012, to demand his money, and an altercation ensued, when it became apparent that the appellant was not going to get his money. They manhandled each other. In the scuffle, the complainant grabbed him, and he held the complainant back. He pushed the complainant against the wall, causing him to F bump into the frame of a wall picture. The glass broke and cut the complainant's back. The cuts to the complainant's back were sutured and a medical report was issued. He reported the incident to the police who opened a docket for assault with intent to do grievous bodily harm.

[3] On 20 December 2012 the appellant received a voice message on his G telephone to go to the police station to discuss the complaint against him. On 21 December 2012 he attended at the Sandton Police Station and met a detective, Ms Ndala, who explained the allegations against him and asked him if he was willing to make a statement, but the appellant elected to make a statement in court. While at the police H station, the appellant called his attorney, but was unable to get hold of him. He was placed under arrest and, within an hour or so, he was taken to court. Ms Ndala indicated in writing that she had no objection against bail of R1000. The appellant's version is that he was never given an opportunity to make a statement in response to the allegations against I him. In court the appellant was remanded in custody to the Johannesburg Prison (commonly known as Sun City). As indicated earlier, on 28 December 2012 the complainant withdrew the charges and the appellant was released from prison. I shall now deal with the findings of the court a quo, the application of the law to the particular facts of this case and my conclusion. J

Shongwe ADP (Majiedt JA and Hughes AJA concurring)

[4] A The particulars of claim clearly delineate the cause of action as an unlawful arrest and detention without a warrant, and malicious prosecution. In para 7 of the judgment of the court a quo, it characterised the appellant's case thus:

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

Counsel for the respondent conceded that no ratio decidendi is apparent in the judgment. What appears to be a ratio is what is said in para 24 of the judgment, namely that:

'Furthermore, I find that members of the police acted reasonably in the C circumstances of this matter and I am unable to criticise them. In my view any criticism against them would not be justifiable.'

[5] The appellant contended that the court a quo erred in not considering that there were no objective facts in evidence underpinning any reasonable suspicion that an offence referred to in sch 1 to the Criminal D Procedure Act 51 of 1977 (the Act) had been committed. He contended further that the absence of a warrant made the arrest unlawful because assault with intent to do grievous bodily harm is not one of the offences referred to in sch 1. It was common cause that, at the time of the appellant's arrest, the police were acting within the course and scope of their employment with the respondent (the Minister). Consequently, as E their employer, the respondent was vicariously liable for their wrongful acts. It was also common cause that the respondent bore the onus to prove the lawfulness of the arrest.

[6] The respondent relied on the provisions of s 40(1)(b) of the Act which authorises a peace officer to effect an arrest without a warrant. F The respondent conceded that assault with intent to do grievous bodily harm is not one of the offences referred to in sch 1, but argued that in the assault in the present instance a dangerous wound was inflicted.

[7] The court a quo reasoned that the police were entitled to arrest without a warrant for —

'any G 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'.

This approach overlooked the fact that the respondent did not plead or H canvass this in evidence. The court a quo mero motu raised it, without asking the parties to address it on the subject. The appellant argued that it amounted to a hearing by ambush and referred to Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC) (2016 (7) BCLR 839; [2016] ZACC 6) para 28 where Nkabinde J observed that:

'The I purpose of pleadings is to define the issues for the other party and the court. And it is for the court to adjudicate upon the disputes and those disputes alone. Of course, there are instances where the court may, of its own accord (mero motu), raise a question of law that emerges fully from the evidence and is necessary for the decision of the case as long as its consideration on appeal involves no unfairness to the J other party against whom it is directed. In Slabbert [Minister of Safety

Shongwe ADP (Majiedt JA and Hughes AJA concurring)

and Security v Slabbert [2010] 2 All SA 474 (SCA)] the Supreme Court A of Appeal held:

"A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding B a case.'

[8] The evidence of Ms Ndala under cross-examination was that she was entitled to arrest the appellant without a warrant because she suspected that he had committed an offence referred to in sch 1 to the Act. The respondent's plea also averred that the arrest was effected in terms C of s 40(1)(b) of the Act, which reads thus:

'40 Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person —

. . .

(b)

whom he reasonably suspects of having committed an offence D referred to in Schedule 1, other than the offence of escaping from lawful custody; . . . .'

[9] It is common cause that sch 1 does not include assault with intent to do grievous bodily harm. It lists an offence of 'assault when a dangerous wound is inflicted'. Therefore, one of the jurisdictional facts is absent. E It cannot be said that Ms Ndala entertained a reasonable suspicion that the listed offence had been committed. It is trite that the arrestor must be a peace officer, who entertains a suspicion that the suspect committed an offence referred to in sch 1, and that the suspicion must rest on reasonable grounds (see Duncan v Minister of Law and Order 1986 (2) SA 805 (A) ([1986] ZASCA 24) at 818G – J). The learned judge in Duncan F stated further that:

'If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie, he [or she] may arrest the suspect. In other words, he [or she] then has a discretion as to whether or not to exercise that power (cf Holgate-Mohamed v Duke G [1948] 1 All ER 1054 (HL) at 1057). No doubt the discretion must be properly exercised. But the grounds on which the exercise of such a discretion can be questioned are narrowly circumscribed.'

[10] In his plea the respondent did not rely on the relevant part of sch 1, quoted above. Nothing was said about whether or not the wound H inflicted was dangerous. There was no evidence by the respondent that an investigation was carried out to ascertain the nature and extent of the wound. It was pointed out in R v Jones 1952 (1) SA 327 (E) at 332D – F that the concept of 'a dangerous wound' is not capable of easy definition. The court held that 'by a dangerous wound is meant one which itself is likely to endanger life or the use of a limb or organ' (see also I Bobbert v Minister of Law and Order 1990 (1) SACR 404 (C) at 409e – h). The respondent's lack of entertaining a suspicion resting on reasonable grounds is further exacerbated by the fact that the medical report (J88), which was presented before the court a quo, was illegible and the original could not be located, for unexplained reasons. The court a quo J

Shongwe ADP (Majiedt JA and Hughes AJA concurring)

impermissibly A speculated that '(e)ven though the injuries were not legible in [the] J88 presented in court they must have been legible in the original J88'.

[11] What is clear is that the arresting officer relied on the statement by the complainant and the J88 only, when she made the decision to arrest. B Clearly, seen objectively, that was insufficient. The arresting officer failed to investigate further the circumstances of the assault itself, whether the wound was inflicted intentionally or whether it came about accidentally during the scuffle. The nature and the seriousness of the wound...