Garces v Minister of Safety and Security and Another (A53/10) [2010] ZAFSHC 152 (2 December 2010)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Appeal No: A53/10

In the appeal between:-

J M S P GARCES …..................................................................Appellant

and

THE MINISTER OF SAFETY AND SECURITY …........First Respondent

J S SEFATSA …......................................................Second Respondent

_____________________________________________________

CORAM: RAMPAI, KRUGER et MOLOI, JJ

HEARD ON: 22 NOVEMBER 2010

JUDGMENT: KRUGER, J

DELIVERED ON: 2 DECEMBER 2010

[1] This is an appeal from the judgment of a single judge dismissing appellant’s claim for wrongful arrest.

[2] The court a quo rejected plaintiff’s evidence as being unreliable. The court a quo found the second respondent a shrewd and evasive witness, but held that his version was in line with the probabilities in relation

to what precipitated the arrest. The court found Inspector Nhlapo, who testified for respondents, a very frank and forthright witness.

[3] It is not in dispute that appellant was arrested by Inspector J.S. Safatsa, the second respondent. The case for the respondents is that the arrest was justified, under section 40(1)(a) of the Criminal Procedure Act, 51 of 1977, because the appellant assaulted the appellant by pushing him, and under section 40(1)(j) because the appellant wilfully obstructed him in the execution of his duty.

[4] The facts can be set out as follows in line with respondents’ evidence together with the facts which are not in dispute:

(i) The appellant has been the co-owner of the Three Rivers Multi Market in Bethlehem since 1973.

(ii) On Sunday 15 October 2006 a man on crutches bought six bags of medium potatoes from appellant in his shop. A few hours later a 13-year old boy brought a bag of small potatoes and asked that they be exchanged for medium potatoes, which appellant did. Half an hour later the boy and a lady came to the shop with two bags of potatoes and asked that they be swopped for medium sized potatoes. Appellant said he could only exchange the small potatoes for medium potatoes if the lady paid the difference of R2,00 per bag, which she refused to do. She left the potatoes and returned half an hour later with two policemen, the second respondent and Inspector Nhlapo.

The second respondent testified that he received a complaint that a lady had sent her child to appellant’s shop to buy medium potatoes but was given small potatoes. She did not want to open a case against appellant.

Second respondent and Inspector Nhlapo went to appellant’s shop. Both second respondent and Inspector Nhlapo were in full police uniform. Second respondent explained the complaint to appellant.

Appellant shouted at second respondent and Inspector Nhlapo and said he did not want to talk to them. The appellant meant to call him a baboon. The appellant told them to get out of his shop and pushed second respondent on his chest. Second respondent put his hand on appellant’s shoulder and told him he was under arrest. Appellant ran to the storeroom at the back of the shop and grabbed the frame of the door and second respondent had to pull him away forcefully. Second respondent explained to appellant that he was committing a further offence of resisting arrest and that he was now under arrest and that he had the right to remain silent. He put appellant into the police van and took him to the police cells where appellant was detained until about 17h00. The next day appellant appeared in court and all charges were withdrawn against him.

At the police station the following occurred according to Inspector Nhlapo:

“There inside the police station we again tried to explain to the plaintiff that those people who had complained wanted the correct potatoes or that their money be returned to them. We could not reach any agreement with the plaintiff there. There inside the charge office inspector Safatsa explained to him that he did not mind what the plaintiff had done to him although the plaintiff did not want to do anything about the people who had lodged a complaint. It is then that inspector Safatsa told him that he would charge him for assaulting a police officer. And there the formality was followed by that I mean everything was explained to him and also including his rights.”

P. 181, line 3 – 14 of the record.

“And if I understood your answer correctly in-chief, you said that inspector Safatsa told him: listen, I do not mind what you did to me but you have to reimburse the complainant or give her the correct potatoes otherwise I will have to charge you for assaulting a policeman? --- Yes it is correct and it is because of this minor child and her grandmother, they did not want many things.”

P. 187, line 1 – 7 of the record.

This evidence makes it clear that second respondent’s main concern was the refund to the lady, not the assault on him.

[5] The jurisdictional facts which the respondents have to prove for an arrest without a warrant under section 40(1)(a) of the Criminal Procedure Act, 51 of 1977 can be stated as follows:

(i) The arrestor must be a peace officer.

(ii) An offence must be committed in his presence.

There is no jurisdictional requirement that the peace officer should consider whether there are less invasive options to bring the suspect before court (MINISTER OF SAFETY AND SECURITY v SEKHOTO (131/10 [2010] ZASCA 141 (19 November 2010).

[6] On the question whether the respondents were at plaintiff’s shop for a valid reason, the court a quo said the following:

“[26] Mr Jordaan SC on behalf of the plaintiff argued that the issue of the potatoes, which led to the police going to the plaintiff’s

business was a civil issue and the police had no business to investigate it. I don’t agree with Mr Jordaan. The police, as

the second defendant testified, have a duty to prevent crime. In Minister Van Polisie v Ewels 1975 (3) SA 590 (A) at 597 G – H it was said:

‘Wat misdaad betref, is die polisieman nie met afskrikker of opspoorder nie, maar ook beskermer.’

All members of the SAPS are required to sign a code of conduct. See Government Gazette No. 27642 of 10 June 2005. In terms of the said code of conduct, a replica of which was handed in as exhibit C, all members of the SAPS must commit themself:

‘to creating a safe and secure environment for all the people in South Africa by –

(a) participating in endeavours aimed at addressing crime;

(b) preventing all acts which may threat the safety or security of any community and

(c) investigating criminal conduct which endangers the safety or security of the community and bringing the perpetrators to justice...’

In terms of section 205 (3) of the Constitution of the Republic of South Africa 108 of 1996 the objects of the police service are:

‘to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their

property, and to uphold and enforce the law.’

[27] In casu the second defendant received information from the complainant that they paid for medium size potatoes and were given small size potatoes. They went to the plaintiff’s shop to investigate the complaint with a view of attempting to solve the problem in order to prevent it from ballooning into crime and secondly because the revelations made by the complainant, properly construed, revealed that she or her son was defrauded the difference between the medium and small potatoes. Although nothing much turns on this point it is clear that the police went to the plaintiff’s shop for a valid reason.”

[7] When effecting an arrest, the decision to arrest must be based on an intention to bring the accused person to justice, as appears from the SCA judgment in SEKHOTO, referred to above:

“[30] He proceeded to say that an exercise of the discretion in question will be clearly unlawful if the arrestor knowingly invokes the power to arrest for a purpose not contemplated by the legislator. This brings me back to the fact that the decision to arrest must be based on the intention to bring the arrested person to justice. It is at this juncture that most of the problems in the past have arisen. Some instances were listed in the judgment of the court below, namely an arrest to frighten or harass the suspect, for example, to appear before mobile traffic courts with the intent to expedite the payment of fines S v Van Heerden 416g – h); to prove to colleagues that the arrestor is not a racist (Le Roux para 41); to punish the plaintiff by means of arrest (Louw at 184); or to force the arrestee to abandon the right to silence (Ramphal para 11). To this can be added the case where the arrestor knew that the state would not prosecute.

[31] The law in this regard has always been clear. Such an arrest is not bona fide but in fraudem legis because the arrestor has used a power for an ulterior purpose. But a distinction must be drawn between the object of the arrest and the arrestor’s motive. This distinction was drawn by Schreiner JA in Tsose and explained by G G Hoexter J in a passage quoted with approval by this court in Kraatz at 507C – 508F. Object is relevant while motive is not. It explains why the validity of an arrest is not affected by the fact that the arrestor, in addition to bringing the suspect before court, wished to interrogate or subject him to an identification parade or blood tests in order to confirm, strengthen or dispel the suspicion. It would appear that at least some of the high court judgments under consideration have not kept this distinction in mind.”

[8] The provisions in the Code of Conduct and the Constitution quoted by the trial court, do not clothe police officers with the powers they have when investigating crime. The lady for whom the potatoes were bought, did not want to lay a criminal charge. It is not clear how the actions of the second respondent and Inspector Nhlapo prevented the problem relating to the potato sale from “ballooning into crime” as the trial court found.

[9] From the evidence of Inspector Nhlapo (whose evidence was accepted by the trial judge) it is apparent that the second respondent effected the arrest in order to induce the appellant to refund the lady’s money to her or to give her other potatoes. The object of the arrest was not to bring the appellant before court on a charge of assault or hindering a police officer, but to endeavour to solve the potato problem. Such arrest is not bona fide but in fraudem legis. (SEKHOTO-case SCA, supra, par. [31].)

[10] Even if the second respondent had the right to go to appellant’s shop to try to resolve her problem with the potatoes (which I do not accept), he could only try to speak to him. When the appellant made it clear that he did not want to speak to the second respondent, the second respondent was obliged to leave. Instead he moved closer to appellant when appellant did not want to speak to second respondent. This move fits in with the intention of the second respondent to try to induce the appellant to return the lady’s money.

[11] The pushing of the second respondent (the “assault”) was of a trivial nature, and it was irrational to arrest in those circumstances (SEKHOTO-case SCA par [44]). The arrest was made not to bring the appellant before court, but for an ulterior motive and therefore wrongful.

[12] As to quantum the courts do not allow large sums for claims of this nature. Seymour who was detained for five days got only R50 000,00 (MINISTER OF SAFETY AND SECURITY v SEYMOUR 2006 (6) SA (SCA)). In MVU v MINISTER OF SAFETY AND SECURITY AND ANOTHER 2009 (2) SACR 291 (GSJ) the plaintiff was detained overnight and R30 000,00 was allowed. In this case an amount of R10 000,00 appears appropriate.

[13] I would make the following order:

1. The appeal is allowed with costs.

2. The order of the court a quo is substituted with the following:

“Defendants, jointly and severally, are ordered to pay plaintiff:

(a) R10 000,00;

(b) Interest on the aforesaid amount at 15,5% per annum from 5 March 2009 to date of payment.

(b) Costs of suit.”

____________

A. KRUGER, J

I concur.

______________

M.H. RAMPAI, J

K.J. MOLOI, J

On behalf of the appellant: Adv. N. Snellenburg

Instructed by:

H L Buchner

BLOEMFONTEIN

On behalf of the respondent: Adv. S. E. Motloung

State Attorney

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