Mahleza v Minister of Police and Another

JurisdictionSouth Africa
Citation2020 (1) SACR 392 (ECG)

Mahleza v Minister of Police and Another
2020 (1) SACR 392 (ECG)

2020 (1) SACR p392


Citation

2020 (1) SACR 392 (ECG)

Case No

5293/2016

Court

Eastern Cape Division, Grahamstown

Judge

Lowe J

Heard

December 4-9, 2019

Judgment

December 12, 2019

Counsel

S Sephton for the plaintiff.
V Madokwe
for the defendants.

Flynote : Sleutelwoorde

Arrest — Arrest without warrant — Lawfulness of — Duty of arresting officer — Reasonable suspicion — Nothing in police docket indicating that plaintiff caused death of deceased — Detention for one month and two days in shocking conditions — Police liable for further detention after remand until first bail application could be held.

Headnote : Kopnota

The plaintiff claimed damages of R990 000 against the first defendant and the second defendant, the Director of Public Prosecutions (the DPP), for wrongful arrest and detention for a period of one month and two days. The plaintiff was a security guard at a tavern, who got into an altercation with the deceased who stabbed him in the shoulder with a long-bladed knife. The plaintiff's colleague came to his assistance and shot the deceased in both legs. The plaintiff then grabbed a kierie and hit the deceased once on the body. The deceased died as a result of his injuries.

The plaintiff was arrested, without a warrant, at his home four months later by a large group of police at 04h00. He was detained and subsequently charged with murder but was acquitted and found guilty instead of assault. The arresting officer at the time had only taken over the police docket three days prior to the arrest. There was an indication in the police docket that the DPP had instructed the police to arrest the plaintiff. He was taken to the court on the morning after his arrest and was remanded to prison, without being given a chance to speak or told of his right to bail. He was kept in shocking conditions with 32 others in a cell which was dirty and had only one toilet and a bed. He spent Christmas in prison, away from his family. The only witness for the defence was the arresting officer who claimed,

2020 (1) SACR p393

untruthfully, that he had relied on a statement by the deceased's wife, but it subsequently transpired that this statement was in fact made well after the arrest of the plaintiff.

Held, that nothing in the statements in the police docket established any more than one blow on the abdomen with the kierie, which had no consequence for the death of the deceased, and there was certainly no basis set out for a suspicion on reasonable grounds that the plaintiff had any part in the murder of the deceased in any culpable way at all. It appeared that the arrest was premised on the instruction of a police captain and the prior instruction of the DPP and was unwarranted, unjustified and unlawful. (See 27] – [29].)

Held, further, that, notwithstanding the investigating officer's assertion that he did not realise that the plaintiff's first appearance would exclude the possibility of bail, and had no knowledge of the impact of s 60(1)(b) of the Criminal Procedure Act 51 of 1977, the court could not accept that this was a credible response for a policeman of 30 years' experience. The investigating officer in fact subjectively foresaw that, as a consequence of the arrest, there would be an inevitable mechanical remand of the plaintiff at his first court appearance, without bail being granted until a formal bail application could be heard, thereby delaying things inevitably for at least two weeks before his final release. Public-policy considerations based on constitutional norms and values pointed to the first defendant being liable for the period of detention until a bail application would be entertained, namely up until two weeks before his actual release. (See [46] – [47].)

Held, further, that, in respect of the last period of detention, the second defendant could not be held liable, given the unavailability of the plaintiff's legal representative, and the second defendant had to be absolved of liability in respect thereof. (See [49] – [53].) The court awarded an amount of R600 000 to the plaintiff to be paid by the first defendant for the period of 19 days' detention.

Cases cited

Southern Africa

Barnard v Minister of Police and Another 2019 (2) SACR 362 (ECG) ([2019] 3 All SA 481): dictum in para [60] et seq applied

De Klerk v Minister of Police 2020 (1) SACR 1 (CC) ([2019] ZACC 32): discussed and applied

Duncan v Minister of Law and Order 1986 (2) SA 805 (A) ([1986] ZASCA 24): applied

Isaacs v Minister van Wet en Orde 1996 (1) SACR 314 (A) ([1996] 1 All SA 343): referred to

Liebenberg v Minister of Safety and Security and Another [2009] ZAGPPHC 88: applied

Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T): applied

Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE): applied

Madze v Minister of Police 2016 (7K6) QOD 229 (ECG): compared

Minister of Law and Order v Kader 1991 (1) SA 41 (A) ([1990] ZASCA 111): dictum at 51A – C applied

Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) ([2013] ZASCA 119): dictum in paras [14] – [17] applied

Minister of Police and Another v Muller [2019] ZASCA 165: applied

Minister of Police v Dhali ECG CA 327/2017: applied

2020 (1) SACR p394

Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) (2011 (5) SA 367; [2011] 2 All SA 157; [2010] ZASCA 141): applied

Minister of Safety and Security v Tyulu 2009 (2) SACR 282 (SCA) (2009 (5) SA 85; [2009] 4 All SA 38): dictum in para [26] applied

MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) (2016 (10) BCLR 1326; [2016] ZACC 24): dicta in paras [40] – [48] applied

Schoombee and Others v Minister of Police and Another [2019] ZAECGHC 94: compared.

England

Diamond v Minter [1941] 1 All ER 390: compared

Harnett v Bond [1924] 2 KB 517 (CA): compared

Harnett v Bond [1925] AC 669 (HL): compared

Lock v Ashton (1848) 12 QB 871 ([1848] ER 878; [1848] EngR 878): compared.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 60(1)(b): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-292.

Case Information

S Sephton for the plaintiff.

V Madokwe for the defendants.

An action for damages for unlawful arrest and detention.

Order

1.

The first defendant is to pay the plaintiff the sum of R600 000 for damages.

2.

The first defendant is to pay interest on such damages, at the prescribed rate of interest, from date of judgment to date of payment.

3.

The first defendant is to pay the plaintiff's costs of suit.

4.

The claim against the second defendant is dismissed.

5.

There is no order as to costs in respect of the second defendant.

Judgment

Lowe J:

Introduction

[1] The plaintiff sues first and second defendants jointly and severally for damages in the sum of R990 000 arising from his allegedly unlawful arrest without a warrant on 24 December 2015, and subsequent detention until 26 January 2016 when he was released on bail.

[2] It is further alleged that the plaintiff's detention, subsequent to 12 January 2016, was 'at the instance of the Second Defendant'.

[3] The second defendant's special plea was dismissed with costs, I have given reasons for such dismissal.

[4] The parties agreed that:

[4.1]

The plaintiff was arrested on 24 December 2015 on a charge of the murder of Mlondolozi Elliot Mahleza (the deceased).

[4.2]

His first court appearance was on 24 December 2015 at 09h00.

2020 (1) SACR p395

Lowe J

[4.3]

He remained in custody until 26 January 2016 when he was released on bail by a court.

[4.4]

He was charged with, and tried for, the murder of the deceased and found not guilty of murder, but guilty of assault.

[4.5]

He was employed as a security guard at the tavern where the deceased died and was on duty at the time.

[4.6]

He has a previous conviction for rape in 2004.

[5] The defendants deny that the arrest without a warrant was unlawful, plaintiff being arrested on a charge of murder, a sch 1 offence in terms of s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act).

[6] The defendants plead a reasonable-suspicion defence.

[7] It is further pleaded that the subsequent detention was lawful and in terms of ss 39 and 50 of the Act.

[8] It is pleaded that, as murder is also a part II and part III of sch 2 offence (of the Act), the plaintiff could not be released on bail by the South African Police Service, and that his detention at and after his first appearance was by order of a magistrate in due legal process.

[9] Section 42 of this National Prosecuting Authority Act 32 of 1998 is relied on in respect of the second defendant, but was not further referred to.

The law as to arrest and detention in terms of s 40(1)(b)

[10] In respect of s 40(1)(b) of the Act the position is generally set out in Minister of Police v Dhali [1] as follows:

'[9] In Duncan v Minister of Law and Order, [2] it was was held that the jurisdictional facts for a s 40(1)(b) defence are that (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in sch 1; and (iv) the suspicion must rest on reasonable grounds. [3]

[10] The suspicion that must be held must, in order to be a reasonable one, be objectively sustainable, in the sense that it must rest on reasonable grounds. [4]

[11] The jurisdictional fact for an arrest without warrant in terms of these provisions remains a suspicion. In Mabona and Another v Minister of Law and Order and Others, [5] the following was said in relation to how a reasonable suspicion is formed:

2020 (1) SACR p396

Lowe J

"Would a reasonable man in the second defendant's position and possessed of the same...

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1 practice notes
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