Le Roux v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Msimang J and Madondo J
• Judgment Date: 17 March 2009
• Citation: 2009 (4) SA 491 (N)
• Docket Number: AR436/2007
• Hearing Date: 22 August 2008
• Counsel: D Crampton for the appellant. M Hadebe for the respondent.
• Court: Natal Provincial Division

Madondo J:

B [1] This is an appeal against the judgment of the Newcastle magistrate dismissing the claim of the appellant (the plaintiff in the court a quo) for damages arising out of his alleged wrongful arrest and detention on 23 June 2006 by the second respondent, acting in the course and within the scope of her employment with the first respondent.

C [2] The facts in this matter are largely common cause: the second respondent is in the employ of the South African Police Service. On 23 June 2006 she arrested the appellant on a charge of negligent or reckless driving. She detained the appellant in the magistrates' court holding cells pending his appearance in court. Appellant was later D released on R500 bail as per the recommendation of the second respondent.

[3] The events in this matter began unfolding on 16 April 2006 when a pedestrian was knocked down and run over twice by a motor vehicle on a public road. Following this incident the second respondent was E assigned to investigate the case of reckless or negligent driving. Through investigation she established that appellant was the driver of the vehicle that had collided with the pedestrian. Following such information she proceeded to the appellant's parental home. However, she did not find the appellant home and she left a message for him, with his father, to F contact her.

[4] On the same day the appellant telephoned the second respondent, and she explained to him the allegations against him. She then requested him to come and see her at the police station. On the following day, 22 June 2006, the appellant reported to the second respondent's office. G After questioning the appellant and taking all the relevant circumstances of the case into account, the second respondent decided not to arrest the appellant but only to warn him to appear before court on the following day instead. The reason for so doing was that the appellant was cooperative and prepared to disprove the allegations against him. She explained to the appellant the procedure she would follow as being that H she would obtain a warning statement from him, and take his fingerprints and a photograph of him. She also told him to return to her office on the following day so that she would formally charge him through the books and take him to court for appearance. However, she did not make any mention to the appellant that, after having been formally charged, he I would be detained in the police holding cells pending his appearance in court.

[5] On 23 June 2006 the appellant reported to the office of the second respondent at 08:30. She then took him down to the holding cells, made an OB entry that the appellant had been arrested, detained him pending J his appearance in court and recommended R500 bail.

Madondo J

[6] It was on this basis the appellant instituted an action against the A respondents for damages. In their defence to the appellant's claim the respondents relied on the fact that the offence of reckless or negligent driving was listed in Schedule 1 to the Criminal Procedure Act 51 of 1977 (the Act), that the second respondent had reasonable grounds for believing that the plaintiff was the perpetrator of the relevant offence and B that, accordingly, the second respondent was in terms of the provisions of s 40(1)(b) of the Act justified in arresting him.

[7] On conclusion of the hearing the magistrate found that the arrest was lawful, since the second respondent had duly complied with the provisions of s 40 of the Act and that she was not mala fide, and her actions C were not unreasonable in the circumstances. The claim for damages was accordingly dismissed. The appellant now appeals against such judgment.

[8] This court has to decide whether due compliance with the provisions of s 40(1)(b) of the Act alone is sufficient to render an arrest and subsequent detention lawful and whether the second respondent's arrest D of the appellant in the circumstances of this case was reasonably justifiable, and a genuine response to the situation.

[9] In deciding the question whether the arrest of the appellant without a warrant was lawful, the court a quo found that the appellant had been charged with contravening s 63(1) of the National Road Traffic Act 93 of 1996 E - reckless or negligent driving. The court then made reference to s 89(5) of Act 93 of 1996, a penalty clause for the offence of reckless or negligent driving, which reads:

'Any person convicted of an offence in terms of subsection (1) read with section 63(1) shall be liable -

(a)

in the case where the court finds that the offence was committed by F driving recklessly, to a fine or to imprisonment for a period not exceeding six years; or

(b)

in the case where the court finds that the offence was committed by driving negligently, to a fine or to imprisonment for a period not exceeding three years.' G

[10] The court concluded that since the imprisonment period the court might impose for negligent or reckless driving was three or six years, the offence with which the appellant was charged fell within the parameters of Schedule 1 to the Act. Schedule 1 lists various offences, including'(a)ny offence except the offence of escaping from lawful custody . . . the H punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine'.

[11] In deciding the issue the court relied heavily on s 40(1) of the Act, setting out the circumstances under which an arrest may be effected without a warrant. The relevant part of the section reads: I

'A peace officer may without warrant arrest any person -

(a)

. . .

(b)

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

Madondo J

A [12] It has been argued on behalf of the appellant that the court a quo had erred in solely considering the provisions of s 40(1)(b) and Schedule 1 to the Act to determine whether or not the arrest was lawful and by not considering the constitutionality of the arrest.

[13] Secondly, the court had failed to give consideration to the factual B circumstances that:

(i)

The appellant had voluntarily, at the request of the second respondent, reported to the Newcastle Police Station on 23 June 2006;

(ii)

the appellant did not present any danger to society;

(iii)

the appellant in all probability would have stood his trial;

(iv)

C he would not have harmed himself or others; and

(v)

he at all relevant times appeared to be keen to disprove the allegations against him.

[14] Thirdly, the arrest was not the appropriate method of ensuring the appellant's presence in court. The court a quo erred in attaching D insufficient weight to internal regulations, eg Standing Order (G) 341, issued under Consolidation Notice 15/1999, providing that an arrest should be used as a last resort. The court had lost sight of the fact that the lawfulness of an arrest was closely connected to the facts of the situation.

E [15] In conclusion Mr Crampton for the appellant has argued that the arrest was in the circumstances unlawful, unwarranted and not legally justified and that therefore it was not reasonably necessary.

[16] At common law the infliction of bodily restraint forms part of the law of delict and gives rise to a claim for damages. Every interference F with physical liberty is wrongful in the absence of a valid ground for justification. See Potgieter & Visser Law of Delict 5 ed at 304. In Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W) para 51 at 457 it was held that every arrest and imprisonment are prima facie unlawful in the absence of a valid justification.

G [17] In order to succeed in an action based on wrongful deprivation of liberty, the plaintiff must prove that the defendant himself or a person acting as his agent or servant deprived him of his liberty. In the present case it has been shown on the evidence that the second respondent acting in the course and within the scope of her employment with the first respondent arrested the appellant and subsequently detained him in the H police holding cells for three and half hours pending his appearance in court.

[18] It has been submitted on behalf of the respondents that on the evidence before court they had proved that the arrest was lawful, in that I it was made in compliance with s 40(1)(b) of the Act. The pre-constitutional approach by our courts and our law enforcement authorities is reflected by Schreiner JA in Tsose v Minister of Justice and Others 1951 (3) SA 10 (A) at 17G - H:

'An arrest is, of course, in general a harsher method of initiating a prosecution than citation by way of summons but if the circumstances J exist which make it lawful under a statutory provision to arrest a person

Madondo J

as a means of bringing him to court, such an arrest is not unlawful even A if it is made because the arrestor believes that arrest will be more harassing than summons. For just as the best motive will not cure an otherwise illegal arrest so the worst motive will not render an otherwise legal arrest illegal . . . .

What I have said must not be understood as conveying approval of the B use of arrest where there is no urgency and the person to be charged has a fixed and known address; in such cases it is generally desirable that a summons should be used. But there is no rule of law that requires the milder method of bringing a person into court to be used whenever it would be equally effective.'

Tsose's case was quoted with approval in Duncan v Minister of Law and C Order 1984 (3) SA 460 (T) at 465. Judge Van Dijkhorst added that the law seemed to be unassailable.

[19] In Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T) at 134g - i it was held that it is trite law that an arrest...