Le Roux v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Citation: 2009 (4) SA 491 (N)

Le Roux v Minister of Safety and Security and Another
2009 (4) SA 491 (N)

2009 (4) SA p491

Citation	2009 (4) SA 491 (N)
Case No	AR436/2007
Court	Natal Provincial Division
Judge	Msimang J and Madondo J
Heard	August 22, 2008
Judgment	March 17, 2009
Counsel	D Crampton for the appellant.; M Hadebe for the respondent.

E

Flynote : Sleutelwoorde

Criminal procedure — Arrest — Without warrant — Reasonable suspicion that F suspect having committed Schedule 1 offence — Mere compliance with applicable provisions of CPA not rendering such arrest lawful — Court to look to constitutional principles and rights to dignity and to freedom — If accused not a danger to society, will stand trial, will not harm others or be harmed by others, and keen and able to disprove allegations against him, arrest not ordinarily appropriate way of ensuring his attendance in G court — Criminal Procedure Act 51 of 1977, s 40(1)(b).

Criminal procedure — Arrest — Without warrant — Lawfulness — Arrest of accused not necessary to secure his attendance at court or to protect public — White accused arrested by white police officer to demonstrate to black members of police service that arresting officer had no racial H prejudice in favour of accused — No rational connection between detention of accused and purpose arresting officer intended to achieve — Arrest not lawful.

Headnote : Kopnota

The mere compliance with s 40(1)(b) of the Criminal Procedure Act 51 of I 1977 (the Act) does not render an arrest without warrant lawful; more care and diligence are required of the arresting officer. Even if a crime which is listed in Schedule 1 to the Act has allegedly been committed and the arresting police officer on reasonable grounds believes that such a crime has indeed been committed, this in itself does not justify an arrest forthwith. Since arrest is a drastic interference with an individual's rights to freedom of movement and to dignity, the court must look further than due J

2009 (4) SA p492

A compliance with the requirements of s 40(1)(b) of the Act to constitutional principles and the rights to dignity and to freedom as enshrined in the Constitution of the Republic of South Africa, 1996. The arrest must be justified according to the demands of the Bill of Rights. The State action must be such that it is capable of being analysed and justified rationally. The court must not only be content with the finding that the arrest of a B suspect fell squarely within the parameters of s 40(1)(b) of the Act; it must also look beyond the provisions of the section to the principles and provisions of the Constitution relating to the right to dignity and freedom in order to determine whether the arrest was justified. There is a duty on our courts to preserve the right to liberty against infringement. Unlawful arrest and detention constitute a serious inroad into the right to liberty and C freedom. If an accused is not a danger to society, will stand trial, will not harm others or be harmed by them, and may be able and keen to disprove the allegations against him or her, an arrest will ordinarily not be an appropriate way of ensuring the accused's presence in court. The power of arrest and detention as contained in s 40 of the Act must be exercised in accordance with the established constitutional principles and the provisions D of the Bill of Rights, guaranteeing the right to freedom and to dignity. (Paragraphs [20], [27], [30], [35] and [44] at 497E - F, 499B - C, 499H - I, 500I - J and 502F.)

In the present case, an appeal from the dismissal in a magistrates' court of the appellant's action for damages for wrongful arrest and detention, the court held that the detention of the appellant had not been necessary to secure his E attendance before the court or to protect the public, but to demonstrate to black members of the police service that the arresting officer, a white person, did not have racial prejudice in favour of the appellant, also a white person. Her conduct when arresting the appellant was, obviously, not influenced by the need to maintain confidence in the administration of justice. In the premises, there was no rational connection between the detention of F the appellant and the purpose the arresting officer intended to achieve. The appellant's detention could therefore not be said to be lawful and a reasonable interference with his liberty and fundamental dignity. (Paragraph [41] at 502A - C.)

Cases Considered

Annotations

Reported cases G

Southern Africa

Bernstein and Others v Bester and Others 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): dictum in para [145] considered

Charles v Minister of Safety and Security 2007 (2) SACR 137 (W): not approved and not followed

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779): dictum in para [22] considered H

Divisional Commissioner of SA Police, Witwatersrand Area, and Others v SA Associated Newspapers Ltd and Another 1966 (2) SA 503 (A): dictum at 512 applied

Duncan v Minister of Law and Order 1984 (3) SA 460 (T): dictum at 465 not I followed

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

Farisani v Minister of Justice and Others 1987 (2) SA 321 (V): considered

Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W): dicta in paras [51],[69] and[72] applied

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

2009 (4) SA p493

Mabona and Another v Minister of Law and Order and Others A 1988 (2) SA 654 (SE): dictum at 658G - H applied

Masawi v Chabata and Another 1991 (4) SA 764 (ZH): considered

Minister of Correctional Services v Tobani 2003 (5) SA 126 (E): dictum at 133F - G applied

Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA): dictum in para [14] applied B

Minister of Safety and Security v Van Niekerk 2008 (1) SACR 56 (CC): dictum in para [20] considered

Nevhutalu and Others v Minister of Police and Another 1986 (4) SA 822 (V): considered

R v Van Heerden 1958 (3) SA 150 (T): referred to C

Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T): dicta at 134g - i and 136a applied

Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V): dictum at 847C applied

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): dictum in para [156] applied

S v Van Heerden en Ander Sake 2002 (1) SACR 409 (T): considered D

Shidiack v Union Government (Minister of Interior) 1912 AD 642: considered

Tsose v Minister of Justice and Others 1951 (3) SA 10 (A): dictum at 17G - H not followed

Zealand v Minister of Justice and Constitutional Development and Another 2008 (4) SA 458 (CC) (2008 (2) SACR 1): considered. E

Foreign

England

A and Others v Secretary of State for the Home Department [2003] 1 All ER 816 (CA): dictum at 817 applied

Crewe and Others v Social Security Commissioner [1982] 2 All ER 745 (CA): considered

R v Waterfield; R v Lynn [1964] QB 164 (CCA) ([1963] 3 All ER 659): dictum at 170 - 171 (QB) and 661H (All ER) applied.

Canada

Collins v Brantford Police Services Board [2001] 87 CRR (2d) 4: referred to G

R v Hall, Attorney-General of Canada and Ontario Criminal Lawyers Association, interveners [2001] 77 CRR 29: applied

R v Money [1998] 48 CRR (2d) 39: dictum at 42 applied

R v Storrey (1990) 53 CCC (3d) 316: dictum at 324 applied

R v Wilson [1990] 48 CRR 107 ([1990] 1 SCR 1291): applied. H

United States

Atwater et al v City of Lago Vista 532 US 318 (2001): referred to.

Statutes Considered

Statutes

The Criminal Procedure Act 51 of 1977, s 40(1)(b): see Juta's Statutes of South Africa 2007/8 vol 1 at 1-332. I

Case Information

Appeal from a decision in a magistrates' court. The facts appear from the judgments of Madondo J and Msimang J.

D Crampton for the appellant.

M Hadebe for the respondents. J

2009 (4) SA p494

Cur adv vult. A

Postea (March 17).

Judgment

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...