The Minister of Safety & Security v Schuster

• Jurisdiction: South Africa
• Judge: Lowe J
• Judgment Date: 16 March 2017
• Docket Number: CA 107/2016
• Court: Eastern Cape Division
• Hearing Date: 10 March 2017
• Citation: 2017 JDR 0504 (ECG)

Lowe, J:

Introduction:

[1]

In this matter, Respondents instituted action against Appellants, alleging that they were unlawfully arrested without a warrant of arrest, on a charge of robbery on 10 January 2013 and were thereafter detained arbitrarily and without just cause at the Gelvandale Police Station until they appeared in court later that same day, being further wrongfully and unlawfully detained at the instance of and/or due to the action of employees of Applicants at St Albans prison from 10 January 2013 to 30 January 2013.

[2]

In their plea Defendants admit the arrest on 10 January 2013, but allege that this was "on a warrant of arrest issued under due process of law, by members of the South African police services…". Denying that the arrest and detention was

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wrongful and unlawful. It is further alleged that the arrest was lawful by virtue of the provisions of section 40 (1) (b) of the Criminal Procedure Act, 51 of 1977 ("the CPA"), in that the arresting officer held a reasonable suspicion that the Respondents had committed an offence referred to in Schedule 6, namely armed robbery.

[3]

It is also worth noting that Appellants pleaded that prior to Plaintiff's arrest on 10 January 2013 they were initially arrested on 16 August 2012 at Port Elizabeth on the same charge, the case against them being later withdrawn on 23 October 2012, they being later re-arrested as set out above.

[4]

There were thus, two causes of action, in effect, although this was claimed in one globular sum against both Defendants jointly and severally the one paying the other to be absolved.

[5]

In due course the Magistrate gave judgment for Respondents against First Defendant in the sum of R50 000.00 each in respect of the unlawful arrest and detention from 01H30 to 08H30 on 10 January 2013 together with interest thereon from date of service of summons (16 July 2013) to date of payment; and that First and Second Appellants were jointly and severally liable to respondents in the sum of R250 000.00 each in respect of the unlawful detention from 10 January 2013 to 30 January 2013 with a similar interest order. Respondents were also ordered their cost of suit.

[6]

Appellant's appeal against this finding and order contending that the Magistrate erred in so finding.

[7]

I propose to deal separately with the two causes of action as these can mostly be assessed separately is relying on different, though related, issues.

Wrongful Arrest:

[8]

An arrest may be carried out with or without a warrant and, unless the person to be arrested submits to custody, the arrest is done by actually touching the person's body. The arrested person must be informed of the reason for the arrest or, if it is upon warrant, a copy of the warrant must be handed to him or

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her on demand. The effect of an arrest is that the person arrested is in lawful custody and must be detained until lawfully discharged.

[9]

At his or her first appearance in court a person who was arrested for allegedly committing an offence must, subject to sections 50(6) and 60 of the CPA,:

(i)

be informed by the court of the reason for the detention to continue; or

(ii)

be charged and be entitled to apply to be released on bail.

[10]

If a person is arrested by a police official and challenges the validity of his or her arrest and detention, the onus to prove the lawfulness thereof is on the police official who effected the arrest or ordered the arrest.

[11]

An arrest and detention after an arrest will only be lawful if the arrest complied with certain requirements. These are that:

(a)

the arrest (with or without a warrant) was properly authorised (that is to say there must be a statutory provision authorising the arrest);

(b)

the arrestor exercised physical control over the arrestee. (The arrestee's freedom of movement must therefore have been limited);

(c)

the arrestee was informed of the reason for his or her arrest; and

(d)

the arrestee was taken to the appropriate authorities as soon as reasonably possible.

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[12]

A police official who effects an arrest in terms of a warrant must, upon the demand of the person arrested, hand him or her a copy of the warrant. If a police official is not in possession of the warrant of arrest and realises that he or she will not be able to comply with a demand for a copy of the warrant, but nevertheless effects the arrest, such an arrest will be unlawful. Minister van Veiligheid & Sekuriteit v Rautenbach 1996 1 SACR 720 (SCA). In this case the policeman intended to take the arrested person to the police station and hand him a copy of the warrant at the police station. According to the court, this would have taken too long and would not have complied with the requirements of s 39(2).

[13]

If a person is unlawfully arrested, his or her initial detention after the arrest will also be unlawful. However, once such person has been brought before a court and his or her further detention has been ordered, the further detention, after the hearing, will be lawful detention, although the suspect will retain his or her right to institute an action for damages as a result of the unlawful arrest and initial detention. Isaacs v Minister van Wet & Orde 1996 1 All SA 343 (A).

[14]

Secondly, at the time of effecting the arrest or immediately thereafter,; where the arrest is effected by virtue of a warrant, a copy of the warrant must upon his or her demand be handed to the person arrested. S 39(2); Minister of Law & Order v Kader 1991 1 All SA 256 (A); 1991 1 SA 41 (AD) 46; cf Brand v Minister of Justice 1959 4 All SA 420 (A); 1959 4 SA 712 (AD) 718; Ngqumba v Staatspresident, Damons v Staatspresident, Jooste v Staatspresident 1988 4 SA 224 (A) 265–266; Constitution of the Republic of SA, 1996 s 35(2)(a).

[15]

Once the wrongfulness of the arrest or imprisonment has been established, the Plaintiff can claim satisfaction, which is estimated ex aequo et bono, under the actio iniuriarum. Factors which may have an influence on the amount of satisfaction awarded are the circumstances under which the interference with liberty took place, the absence or presence of malice or an improper motive on the part of the Defendant, the duration of the restriction of liberty, the

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social status and age of the Plaintiff, the fact that the Plaintiff was the author of his or her own misfortune, the degree of publicity afforded the deprivation of liberty, and whether the Defendant apologised for or gave a satisfactory explanation as to what took place. In addition, awards in previous cases, allowing for inflation, must be considered. If, there is also an infringement of other personality interests, such as dignity and especially good name or reputation, the amount of satisfaction is increased.

[16]

In Rautenbach (supra) it was set out that compliance with section 39 (2) of the CPA is required as soon as possible but that it is clear where there is no intent or ability to comply therewith the arrest is invalid from its inception. In that matter the arrestor acted on the authority of a warrant to arrest the suspect but did not take a copy of it to the arrest and could not have exhibited it had the suspect requested same and he was therefore not able and did not intend to comply with the requirement, and the arrest was futile. In Baasden v Minister of Safety and Security 2014 (2) SACR 163 (GP), the failure to prove that a warrant existed by...