Minister of Safety and Security v Sekhoto and Another

• Jurisdiction: South Africa
• Judge: Harms DP, Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA
• Judgment Date: 19 November 2010
• Citation: 2011 (5) SA 367 (SCA)
• Docket Number: 131/2010
• Hearing Date: 02 November 2010
• Counsel: IV Maleka SC (with A Bester) for the appellant. GJM Wright for the respondents.
• Court: Supreme Court of Appeal

Harms DP (Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA B concurring):

Introduction

[1] Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for an arrest by a peace officer without a warrant of arrest. The section C appears to be clear, but a number of High Courts, including the court below, have added a gloss to the section, purportedly based on the demands of the Bill of Rights. The Minister of Safety and Security, the appellant, with leave of the court below, argues that the gloss cannot be justified.

D [2] The two plaintiffs (the present respondents) were arrested by police officers (who are 'peace officers') [1] without warrants of arrest. The first plaintiff, Mr Sekhoto, was arrested on 15 July 2002 on suspicion of a contravention of s 2 of the Stock Theft Act 57 of 1959, which provides that a person who is found in possession of stock or produce, in regard to which there is reasonable suspicion that it has been stolen, and is E unable to give a satisfactory account of such possession, is guilty of an offence. The second plaintiff, Mr Madonsela (also known as Sibeko), was arrested the following day on a count of stock theft.

[3] They were, until released on bail, detained for a period of 10 days and were subsequently charged, together with Sekhoto's father. The F father was found guilty of stock theft, but the plaintiffs were discharged at the end of the State's case.

[4] The plaintiffs thereafter sent the required notices of demand to the National Commissioner of Police — in which they claimed payment of damages. Their complaint (as far as it is relevant for this judgment) was G that their arrests without a warrant were 'unreasonable, unlawful and intentional'. The demand was not met and summons was issued in the magistrates' court for the district of Vrede for damages on three grounds: unlawful arrest; unlawful detention; and malicious prosecution. The claims in relation to detention and malicious prosecution were eventually dismissed and do not feature in the appeal. The particulars of claim, in H respect of the unlawful-arrest claim, echoed the terms of the letter of demand.

[5] The plea was based on a defence contained in s 40(1)(b) and (g) of the Act, which provide that a peace officer may without warrant arrest any person —

'(b)

I whom he reasonably suspects of having committed an offence referred to in Schedule 1. . .;

Harms DP (Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA concurring)

. . . . A

(g)

who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce; . . . .'

[6] As was held in Duncan v Minister of Law and Order, [2] the jurisdictional B 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 Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For purposes of para (g), the suspicion must be that the arrestee was or is in unlawful possession of stock or produce as defined in any law C relating to the theft of stock or produce. [3] The jurisdictional facts for the other paragraphs of s 40(1) differ in some respects, but these are not germane for present purposes.

[7] It is trite that the onus rests on a defendant to justify an arrest. As Rabie CJ explained in Minister of Law and Order and Others v Hurley and Another: [4] D

'An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.' E

[8] Presumably because the plaintiffs bore an onus in respect of some of the issues in the case, especially in relation to the other claims, they testified first. It is apparent from the case, as presented by both parties, that the only issue between them in relation to this cause of action concerned item (iv), namely whether the peace officer had reasonable F grounds for the arrest. The first plaintiff's evidence-in-chief, for instance, concluded with his 'contention' that he had been arrested without any reasonable grounds, and the second plaintiff conceded at the conclusion of his evidence that the police had good reason for arresting him. The minister's attorney applied for absolution from the instance at the end of the plaintiffs' case — which the learned magistrate correctly refused on G the ground that absolution was not available where the onus rested on a defendant.

[9] During the evidence of the peace officer, Mr Van der Watt, a question arose as to the relevance of the cross-examination; and the attorney for the plaintiffs confirmed that the issue was whether the police had H grounds for their suspicion to arrest.

[10] The magistrate found that the minister had established the listed jurisdictional facts for a defence based on s 40(1)(b) and (g). He nevertheless found in favour of the plaintiffs in the light of the absence of I

Harms DP (Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA concurring)

A evidence on behalf of the minister of another jurisdictional fact, which was laid down by Bertelsmann J in Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T) at 186a – c and 187e, where the learned judge said the following:

'I am of the view that the time has arrived to state as a matter of law that, B even if a crime which is listed in Schedule 1 of Act 51 of 1977 has allegedly been committed, and even if the arresting police officers believe on reasonable grounds that such a crime has indeed been committed, this in itself does not justify an arrest forthwith.

An arrest, being as drastic an invasion of personal liberty as it is, must C still be justifiable according to the demands of the Bill of Rights.

[P]olice are obliged to consider, in each case when a charge has been laid for which a suspect might be arrested, whether there are no less invasive options to bring the suspect before the court than an immediate detention of the person concerned. If there is no reasonable D apprehension that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his/her arrest, or a notice or summons to appear in court is obtained, then it is constitutionally untenable to exercise the power to arrest.'

[11] I shall refer to this as the fifth jurisdictional fact which, if justified, E would by its very nature be a requirement for a valid arrest under all the paragraphs of s 40(1). For ease of reading, I shall limit the discussion to a consideration of para (b) only.

[12] The minister appealed to the full bench — which was constituted, for purposes of the appeal, of three judges — of the Free State High Court. F The appeal was dismissed. [5] The court confirmed the approach of the magistrate by following the decision in Louw. The Full Bench judgment, it may be mentioned, was in line with a number of High Court judgments that also followed the approach in Louw. [6] The only dissenting voice was that of Goldblatt J. [7] The Constitutional Court, in Van Niekerk, [8] declined the invitation to decide the conflict because a decision G could not be justified by the facts of the case before it.

[13] There is judicial, academic and — according to media reports — public disquiet about the apparent abuse by some peace officers of the provisions of s 40(1): because they arrest persons merely because they H have the 'right' to do so, but where, under the circumstances, an arrest

Harms DP (Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA concurring)

is neither objectively nor subjectively justifiable. [9] Paragraph (a), for A instance, permits a peace officer to arrest a person who commits any crime in his or her presence. This may be used to arrest persons for petty crimes such as parking offences, drinking in public, and the like. There is, in para (o), the right to arrest any person who is reasonably suspected of having failed to pay any fine, and which is used to justify roadblocks B and the arrest of persons who have failed to pay traffic fines. Some of the provisions even hark back to the days when gambling was a serious sin, possession of an infinitesimal amount of dagga attracted a minimum prison sentence, and prohibition was racially based.

Interpretation principles C

[14] It is unclear whether the courts below, in formulating the fifth jurisdictional fact, did 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). Accordingly, it is appropriate to begin with a reference to the statement of Chaskalson P: that the Constitution does not mean D whatever we wish it to mean and, furthermore, that cases fall to be decided on a principled basis. [10]

[15] It is also necessary to be reminded of the manner in which statutes must be interpreted in the light of the Bill of Rights. I do not apologise E for setting this out at length; because it would appear that the different High Courts have failed to have regard to these principles. Langa CJ, in Hyundai, [11] after quoting s 39(2) of the Constitution — which states, inter alia, that when interpreting legislation a court must promote the spirit, purport and objects of the Bill of Rights — said that it means that all statutes must be interpreted through the prism of the Bill of Rights. He F made the following salient points, relevant for present purposes:

(a)

The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistent with this, when the...