Minister of Safety and Security v Sekhoto and Another

• Jurisdiction: South Africa
• Citation: 2011 (1) SACR 315 (SCA)

Minister of Safety and Security v Sekhoto and Another
2011 (1) SACR 315 (SCA)

2011 (1) SACR p315

Citation	2011 (1) SACR 315 (SCA)
Case No	131/2010
Court	Supreme Court of Appeal
Judge	Harms DP, Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA
Heard	November 2, 2010
Judgment	November 19, 2010
Counsel	IV Maleka SC (with A Bester) for the appellant.; GJM Wright for the respondents.

Flynote : Sleutelwoorde

Arrest — Without warrant — Legality of — Criminal Procedure Act 51 of 1977, s 40(1)(b) — Once required jurisdictional facts present, discretion arising as to whether or not to arrest — Standard for exercise of such discretion not perfection, or even optimum, judged from vantage of hindsight — As long C as choice made falling within range of rationality, standard not breached.

Arrest — Without warrant — Legality of — Criminal Procedure Act 51 of 1977, s 40(1)(b) — Power to arrest to be exercised only for purpose of bringing suspect to justice — Arrest but one step in process — Authority to detain suspect after first appearance within discretion of court — Enquiry to be D made by peace officer not how best to bring suspect to trial, but only whether case one in which that decision ought properly to be made by court — Rationality of arrestor's decision on that question depending upon particular facts of case — Clear that in serious crimes, such as those listed in Schedule 1, arrestor could seldom be criticised for arresting suspect in order to bring him or her before court. E

Arrest — Law relating to arrest — 'Fifth jurisdictional fact' laid down in Louw v Minister of Safety and Security 2006 (2) SACR 178 (T): that police obliged to consider less invasive means of bringing suspect before court — Nothing in s 40(1)(b) of Criminal Procedure Act 51 of 1977 that could lead to conclusion that its wording containing hidden 'fifth jurisdictional fact' — F Since legislation overriding common law, meaning of statute could not be changed by developing common law — None of High Courts applying 'fifth jurisdictional fact' having considered whether or not s 40(1)(b) unconstitutional and, if so, whether reading in 'fifth jurisdictional fact' saving it from unconstitutionality — Arrest under circumstances set out in s 40(1)(b) not amounting to deprivation of freedom which arbitrary or without just G

2011 (1) SACR p316

A cause — Lawful arrest not capable of being arbitrary — Decision in Louw v Minister of Safety and Security 2006 (2) SACR 178 (T) criticised.

Fundamental rights — Generally — Onus — Party alleging infringement of constitutional right bearing onus of establishing it — Party attacking exercise of discretion, where necessary jurisdictional facts present, bearing onus of B proof — This so whether or not right to freedom compromised — Not tenable to expect defendant to deal with claim in which no averment made, save general one that arrest unreasonable.

Headnote : Kopnota

In defending a claim for unlawful arrest, the four jurisdictional facts set out in s 40(1)(b) of the Criminal Procedure Act 51 of 1977 must be pleaded: that the arrestor was a peace officer; that he or she entertained a suspicion; that C the suspicion was that the arrestee had committed a Schedule 1 offence; and that the suspicion rested on reasonable grounds. In Louw v Minister of Safety and Security 2006 (2) SACR 178 (T), which was subsequently followed in a number of other decisions, the court laid down a fifth jurisdictional fact: that there must have been no less invasive options available in order to bring the suspect before court. The respondents in casu had been arrested for D stock theft, but discharged at the close of the State's case. They were subsequently awarded damages for unlawful arrest on the grounds that there had been other means available to bring them before court. The appellant's appeal to a full bench was dismissed, after which he approached the Supreme Court of Appeal.

Held, that it was unclear whether the courts below, when formulating the fifth E jurisdictional fact, had done so by direct application of provisions of the Bill of Rights; by developing the common law; or by way of interpretation of s 40(1) of the CPA. Bearing in mind the principles of interpretation, and the manner in which statutes were to be interpreted in light of the Bill of Rights, there was nothing in s 40(1)(b) that could lead to the conclusion that its words contained a hidden fifth jurisdictional fact. And since legislation F overrode the common law, the meaning of a statute could not be changed by developing the common law. (Paragraphs [14]–[15] and [22] at 323b–c and 325e.)

Held, further, that none of the High Courts had considered whether or not s 40(1)(b) was unconstitutional and, if so, whether 'reading in' the fifth jurisdictional fact could save it from unconstitutionality. It could hardly be G suggested that an arrest under the circumstances set out in s 40(1)(b) could amount to a deprivation of freedom which was arbitrary or without just cause and thus in conflict with the Bill of Rights. A lawful arrest could not be arbitrary. (Paragraphs [24]–[25] at 326b–d.)

Held, further, that, once the required jurisdictional facts were present, the discretion whether or not to arrest arose. Peace officers were entitled to H exercise this discretion as they saw fit, provided they stayed within the bounds of rationality. This standard was not breached because an officer exercised the discretion in a manner other than that deemed optimal by the court. The standard was not perfection, or even the optimum, judged from the vantage of hindsight, and, as long as the choice made fell within the range of rationality, the standard was not breached. (Paragraphs [28] and I [39] at 327b–c and 330e.)

Held, further, that it was clear that the power to arrest was to be exercised only for the purpose of bringing the suspect to justice; however, the arrest was but one step in that process. The arrestee was to be brought to court as soon as reasonably possible, and the authority to detain the suspect further was then within the discretion of the court. This discretion was subject to a J wide-ranging statutory structure and, if a peace officer were to be permitted

2011 (1) SACR p317

to arrest only when he or she was satisfied that the suspect might not A otherwise attend the trial, then that statutory structure would be entirely frustrated. To suggest that such a constraint upon the power to arrest was to be found in the statute by inference was untenable. The arrestor was not called upon to determine whether or not a suspect ought to be detained pending trial; that was for the court to determine, and the purpose of an arrest was simply to bring the suspect before court so as to enable it to make B that determination. The enquiry to be made by the peace officer was not how best to bring the suspect to trial, but only whether the case was one in which that decision ought properly to be made by the court. The rationality of the arrestor's decision on that question depended upon the particular facts of the case, but it was clear that in cases of serious crimes, such as those listed in Schedule 1, an arrestor could seldom be criticised for C arresting a suspect in order to bring him or her before court. (Paragraphs [42]–[44] at 331c–332a.)

Held, further, regarding onus, that the party who alleged the infringement of a constitutional right bore the onus of establishing it. Furthermore, a party who attacked the exercise of a discretion where the necessary jurisdictional facts were present bore the onus of proof. This was so whether or not the D right to freedom was compromised. It could not be expected of a defendant to deal with a claim — as in casu — in which no averment had been made, save the general one that the arrest had been unreasonable. Were it otherwise, the defendant would be compelled to cover the whole field of every conceivable ground for review, knowing that, should he or she fail to do so, a finding that the onus had not been discharged could ensue. Such a state of affairs was quite untenable. (Paragraphs [49]–[50] at 333a–e.) E

Appeal upheld. Order of the magistrates' court amended to read 'absolution from the instance.'

Annotations:

Cases cited

Reported cases

Southern Africa F

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529): referred to

Charles v Minister of Safety and Security 2007 (2) SACR 137 (W): referred to

Duncan v Minister of Law and Order 1986 (2) SA 805 (A): dictum at 818H – J G applied

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (2) SACR 105 (CC) (2002 (4) SA 613; 2002 (7) BCLR 663): referred to

Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W): criticised

Grey's Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others H 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931; [2005] 3 All SA 33): referred to

Groenewald v Minister van Justisie 1973 (3) SA 877 (A): referred to

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) I (2001 (1) SA 545; 2000 (10) BCLR 1079): followed

Le Roux v Minister of Safety and Security and Another 2009 (2) SACR 252 (KZP) (2009 (4) SA 491): criticised

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

Macu v Du Toit en 'n Ander 1983 (4) SA 629 (A): referred to J

2011 (1) SACR p318

Masetlha v President of the RSA 2008 (1) SA 566 (CC) (2008 (1) BCLR 1): referred to A

Minister of Justice and Others v Tsose 1950 (3) SA 88 (T): referred to

Minister of Law and Order and Another v Dempsey 1988 (3)...