Jacobs v Minister of Police and Another (18371/2014) [2015] ZAGPPHC 803 (3 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 18371/2014

Date: 3/12/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

NICK JACOBS PLAINTIFF

And

MINISTER OF POLICE FIRST

DEFENDANT

SERGEANT ASHWIN MOODLEY SECOND

DEFENDANT

JUDGMENT

PRETORIUS J,

(1) This is a claim against the Defendants for unlawfully arresting and detaining the plaintiff. By agreement between the parties the issue of merits and quantum was separated in terms of Rule 33(4) of the Uniform Rules of Court and this court will only adjudicate the merits.

(2) The plaintiff alleged that he was unlawfully arrested on 22 February 2012 at Rand Merchant Bank, Sandton, without a warrant of arrest by the second defendant, a member of the SAPS, on a charge of theft. According to the plaintiff this took place in view of his co-employees and he was embarrassed and humiliated in the esteem of the public. The plaintiff was thereafter taken to Morningside Police Station by the police where he was detained overnight. The next day he was released from police custody as the prosecutor had decided not to prosecute the plaintiff on a charge of theft.

(3) The defendant had the onus to begin. Sergeant Moodley testified on behalf of the defendants that on 22 February 2012 he was called to Rand Merchant Bank in Sandton. According to him he spoke to the risk manager on his arrival and took a statement from the complainant, as well as viewing the video footage of the incident. It is common cause that the plaintiff had removed a laptop which was in a bag next to a wall in a boardroom on the premises on 21 February 2012. At the outset, when the plaintiff was interviewed, he admitted that he had taken the laptop for safekeeping as he had found it in the boardroom. His intention was to return it to the rightful owner. He placed it in a drawer, which he locked as he had so many call outs that he could not attend to tracing the owner immediately. Sergeant Moodley’s evidence was that after he had heard the plaintiff’s explanation he spoke on the plaintiff’s behalf to the security manager of Rand Merchant Bank to drop the charges, but this was refused.

(4) Mr Chapman, who was the actual complainant and owner of the laptop deposed to an affidavit on 22 February 2012. He did not set out in the affidavit that his laptop had been stolen and that nobody had the right to take his laptop. He admitted forgetting his laptop in the boardroom, confirming the plaintiff’s version that he had found it. Mr Chapman deposed to a further affidavit on 24 February 2012 where he stated:

“Basically in view of the fact my asset were (sic) recovered on the premises of Randmachand bank (sic) at Sandown in the possession of the suspect. I am not convinced beyond doubt that crime had been committed.”

(5) This was done after the prosecutor had already decided to nolle prosequi the docket on 23 February 2012.

(6) It is curious that no statement was taken from any employer of the bank as it was the employees of Rand Merchant Bank who had insisted to have the plaintiff arrested.

(7) The undisputed evidence by the plaintiff was that he was employed by Dimension Data, who is currently still his employer. He was contracted by Dimension Data to Rand Merchant Bank and had started working as an IT Engineer at Rand Merchant Bank on 5 February 2012. On 21 February 2012 he had received a call to prepare the boardroom for a meeting. As he entered the empty boardroom he found the laptop in its bag against the wall. He realised it did not belong to any employee of Rand Merchant Bank as they used Dell computers and the laptop was an Apple Mac. He placed the laptop in his drawer and locked it, intending to return it to the rightful owner as soon as possible. He worked extremely hard and there was a lot of pressure for call-outs by employees of the bank. He forgot about the laptop and left for home at 15h00 as he had been at the office since 6h00.

The next morning he opened the laptop bag, saw it contained important documents and business cards, as well as the laptop. He took a business card from the bag, intending to call the owner as soon as he had an opportunity to do so.

(8) He was in the lift talking on his cellphone to a friend and mentioned that he had found the laptop. Mr Tony McKenna, an employee of Rand Merchant Bank, was present in the lift. Immediately thereafter a certain Rian, the security manager, confronted the plaintiff and asked why he had not handed the laptop over to security. He explained that the laptop bag contained an important document and he was afraid that it may end up with somebody who was not entitled to look at it. He explained that his intention was at all times to hand the laptop to the rightful owner.

(9) The police was called and the plaintiff repeated his version. Sergeant Moodley did not believe him, he was arrested and placed in the police cells which were filthy with a broken toilet and shower. He was released the next day after a Captain of the police had told him he should never have been arrested and detained.

(10) The plaintiff’s evidence was that he was at all times aware that there were security cameras in the bank and that he had no intention of stealing the bag. He had kept it locked safely in his drawer until he could attend to finding the lawful owner. It is clear that Mr Chapman, the complainant, had not enquired about his missing laptop, but was called by the employees of the bank once the plaintiff handed it over.

(11) Section 40(1)(b) of the Criminal Procedure Act, 51 of 1977 (“the Act”) provides:

“(1) 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;”

(12) In Minister of Safety and Security v Sekhoto and Another 2011(5) SA 367 (SCA) at paragraph 6 Harms JA confirmed:

“As was held in Duncan v Minister of Law and Order, the jurisdictional 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.” (Court’s emphasis)

(13) The onus rests on the defendant to justify an arrest without a warrant. This matter corresponds squarely on the dispute in the Sekhoto case as the only fact in dispute is whether the peace officer had reasonable grounds for the arrest.

(14) The wording of section 40(1)(b) of the Act is very clear as a peace officer may arrest any person who he reasonably suspects of having committed an offence referred to in Schedule 1 of Criminal Procedure Act, 51 of 1977. Theft is such an offence.

(15) In Duncan v Minister of Law and Order 1986(2) SA 805 (A) at 818 H-J van Heerden JA held:

“If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie, he may arrest the suspect. In other words, he then has a discretion as to whether or not to exercise that power (cf Holgate-Mohammed v Duke [1984] 1 All ER 1054 (HL) at 1057). No doubt the discretion must be properly exercised. But the grounds on which the exercise of such a discretion can be questioned are narrowly circumscribed. Whether every improper application of a discretion conferred by the subsection will render

an arrest unlawful, need not be considered because it does not arise in this case.”

(16) In Shidiack v Union Government 1912 AD 642 at 651-652 Innes ACJ found:

“Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with the result. Not being a judicial

functionary no appeal or review in the ordinary sense would lie; and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of law either to make him change his mind or to substitute its conclusion for his own. . .There are circumstances in which interference would be possible and right. If, for instance, such an officer had acted mala fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute—in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong.” (Court’s emphasis)

(17) The arresting officer must himself have the reasonable suspicion – he cannot act as an agent of somebody else. In this instance Sergeant Moodley, the arresting officer’s evidence was that due to the security officer’s insistence he arrested the plaintiff, although he tried on behalf of the plaintiff not to arrest him.

(18) The dictum by Jones J in Mabona and Another v Minister of Law and Order and Others 1998(2) SA 654 (SECLD) at page 658 E sets out the test:

“The test of whether a suspicion is reasonably entertained within the meaning of section 40(1)(b) is objective… The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.” (Court’s emphasis)

(19) In Minister of Police and Another v Du Plessis 2014(1) SACR 217 (SCA) Navsa ADP said in paragraph 17:

“Justification for the detention after an arrest until a first appearance in court continues to rest on the police. Counsel for the appellants rightly accepted this principle. So, for example, if shortly after an arrest it becomes irrefutably clear to the police that the detainee is innocent, there would be no justification for continued detention.”

(20) In the present instance it is clear that the only evidence in the docket was the statement by Sergeant Moodley. There was no attempt to obtain statements from the bank or to lead evidence from Rian or Mr McKenna to confirm that the laptop was regarded as stolen.

(21) Even Mr Chapman, when withdrawing the charge unequivocally stated: “I am not convinced beyond doubt that a crime had been committed”. It is further clear from Sergeant Moodley’s evidence that if the employees of the bank, who had not testified, did not insist on the plaintiff’s arrest, he would not have arrested the plaintiff.

(22) Therein lies the problem for the defendants as Sergeant Moodley did not objectively have a reasonable suspicion to justify an arrest without a warrant. The cross-examination of the plaintiff by counsel for the defendants was aimed at his reasons for keeping the computer overnight, but did not deal at all with the suspicion and reasons for the suspicions Sergeant Moodley might have had.

(23) In Minister of Safety and Security v Sekhoto (supra) Harms DP held at paragraph 38 and 39:

“But even if this Act does not apply, it remains a general requirement that any discretion must be exercised in good faith, rationally and not arbitrarily.

This would mean that peace officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of rationality. The standard is not breached because an officer exercises the discretion in a manner other than that deemed optimal by the court. A number of choices may be open to him, all of which may fall within the range of rationality. The standard is not perfection or even the optimum, judged from the vantage of hindsight — so long as the discretion is exercised within this range, the standard is not breached.”

(24) In these circumstances where it is clear that Sergeant Moodley was not convinced that the crime had been committed and whether the plaintiff should be arrested, I find that he was unduly influenced to arrest the plaintiff, by the employees of the bank. The impression his evidence gave was that if the bank employees had not insisted on the arrest of the plaintiff, he would not have arrested him. This is confirmed by the lack of information from the bank employees themselves and that none of them testified. The fact that the plaintiff was immediately released the following day confirms this.

(25) This court finds that at the time of the arrest of the plaintiff the fourth jurisdictional fact has not been met, as Sergeant Moodley did not exercise his discretion properly, but was influenced by the bank’s employees. His discretion was not exercised rationally and independantly as his suspicion did not rest on reasonable grounds.

(26) It is ordered:

1. THAT the plaintiff was arrested and detained unlawfully

2. THAT the defendants pay the costs including the costs of senior counsel during the trial as well as the appearance on 22 October 2015.

3. THAT the issue of quantum is postponed sine die.

_____________________

Judge C Pretorius

Case number: 18371/2014

Matter heard on: 24 & 25 November 2015

For the Plaintiff: Adv GB Botha SC

Instructed by: GP Venter Attorneys

For the Defendants: Adv BG Mashabane

Instructed by: State Attorneys

Date of Judgment: