Minister of Police v Damons and Another (CA 29/2020) [2020] ZAECGHC 122 (22 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION

: GRAHAMSTOWN

CASE NO. : CA 29/2020

In the matter between:

MINISTER OF POLICE

Appellant

and

JUSTIN DAMONS

1st Respondent

JERMAINE VALENTINE

2nd Respondent

APPEAL JUDGMENT

GRIFFITHS, J.:

[1] On Tuesday, 21 September 2010, the respondents were arrested by members of the South African Police Services and detained for a period of 40 hours. This formed the basis of a claim for damages by them against the appellant which was heard by the magistrate, Port Elizabeth. On conclusion, the magistrate found that whilst the arrest had been lawful, the subsequent detention was not, and awarded damages in the sum of R60,000 to each respondent.

[2] Aggrieved by the latter decision of the magistrate, the appellant lodged an appeal against it. There was no cross-appeal by the respondents against his finding that the arrest was lawful. It is this appeal by the appellant which has served before us.

[3] Initially, three actions served before the lower court which had been consolidated as they flowed from the same incident. However, at the outset of the matter it was indicated that one of those matters would not proceed and thus only the twin actions of the respondents were heard. There was also a claim for assault which was abandoned during the trial.

[4] It was common cause on the pleadings that the respondents were indeed arrested and detained for the 40-hour period. Accordingly, the appellant attracted an onus to justify both the arrest and subsequent detention[1]. Regarding the question of continued detention after the arrest the respondents pleaded as follows:

“12. The detention and incarceration of Plaintiff from 21 September 2010 was wrongful, unlawful and not objectively justifiable.

13. Notwithstanding the plaintiff’ s arrest, without a warrant, none of the Defendant’s employees, took any reasonable steps to release the Plaintiff even though no reasonable grounds or sound reasons for his continued detention had existed and notwithstanding

the fact that the Plaintiff persistently professed his innocence and protested his continued detention.”

[5] The appellant’s plea to the alleged unlawful detention was as follows:

“Save for denying that the detention and incarceration of the Plaintiff from 21 to 23 September 2010 was wrongful and/or unlawful and/or not objectively justifiable, the rest of these paragraphs is admitted.”

And

“The Defendant denies that there were any reasonable grounds or sound reasons for the release of the Plaintiff before 23 September 2010 and puts the Plaintiff to the proof thereof.”

[6] In responding to a request for further particulars for trial, the appellant pleaded that the continued detention of the respondents was justified on the following bases:

“On the basis of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 and conducting investigation relating to the crime Plaintiff was suspected of having committed.”

“Plaintiff was arrested as a suspect in a crime that had been committed; his detention was necessary pending the investigation relating to the crime committed and the verification of information obtained in that investigation.”

“The investigation was committed within the 48 hours and he could be released at the expiry of the 48 hours instead of being taken to court.”

[7] At trial the respondents testified first (apparently because the assault claim was still extant at that stage and the respondents carried the onus in respect thereof) and one Anthony, the arresting officer, testified for the appellant.

[8] The essential facts upon which the magistrate found the arrest to have been lawful may be shortly stated. Sergeant Anthony was a member of a Tactical Response Team which dealt, inter alia, with gangsterism in the Gelvandale area of Port Elizabeth. During the evening of 21 September 2010, he was on patrol together with five other team members. Information was received about a gang-related shooting incident which had occurred in an area known as Schauderville. This information also revealed that a white double cab Colt bakkie with the registration number “PETER EC” had been involved.

[9] Upon following up on this information they came across a bakkie which, save for its registration number, matched that description. After summoning backup, they followed the bakkie to Stanford Road, to the N2 and then on to Cape Road. After the backup had arrived, they switched on their blue lights and sirens and pursued the bakkie. It was at this stage that the bakkie accelerated and began to swerve from side to side in an erratic manner. At some stage it drove over the curb, and as it did so an object was thrown from its left side. The police ultimately stopped the vehicle and caused its occupants, including the respondents, to egress and lie on the ground. This was achieved by having one of the police vehicles stop in front of the bakkie. Anthony searched the area where the object had been thrown from the bakkie and found a loaded firearm. Upon searching the bakkie, they found a number plate with registration number “PETER EC”. Based hereon, all the occupants of the bakkie, including

the respondents, were arrested.

[10] Based on this evidence, the court a quo found the arrest of the respondents to have been justified pursuant to the provisions of section 40(1)(b) of the Criminal Procedure Act (“CPA”), on the basis of a reasonable suspicion that they had been involved in public violence, an offence which falls under Schedule 1 of that Act.

[11] With regard to the finding of unlawful detention after the lawful arrest, the judgment of that court proceeded as follows:

“Regarding the detention, the two plaintiffs and Sergeant Anthony said that the plaintiffs were just taken to Gelvandale Police Station. Thereafter they were taken to Kabega Park Police station. From the evidence of Sergeant Anthony it is clear that the police did not receive much or any further information regarding the public violence, which is why the plaintiffs were taken to be charged and detained at Kabega Park Police station which had the jurisdiction over the offence of illegal possession of the firearm that was found at the scene.

There is no evidence led on behalf of the defendant to indicate what the reason was for detaining the plaintiffs from the 21st until 23 October 2010. The basis of the argument on behalf of the defendant is that the plaintiffs were released from custody within

the period of 48 hours as allowed in the Criminal Procedure Act. However, with Sergeant Anthony’s concession, which is to the effect that the plaintiffs could not have been in possession of the firearm, this court is of the view that he should have considered the facts before he had the plaintiffs detained at Kabega Park for possession of the firearm.”

[12] It will be seen from this that the magistrate, in effect, found that whilst the respondents were arrested on a reasonable suspicion that they had been involved in the episode of public violence earlier that evening, their ultimate detention was based on a charge of illegal possession of a firearm. He found the continued detention to be unreasonable because during the trial Anthony had conceded that as the respondents had been sitting in the back of the bakkie and the firearm had been thrown from one of the windows of the cab, it could not have been thrown out by them.

[13] There are certain factual problems with these assertions. Firstly, the inference that the investigation relating to public violence was, in effect, dropped at that early stage is not at all warranted from the evidence. Anthony merely mentioned in evidence that the respondents had been taken to the second police station as it had jurisdiction with regard to the illegal possession of the firearm. He did not testify that the investigation regarding public violence had been dropped. Secondly, it is of importance to distinguish what was known to Anthony at the time of arrest, and upon which he based his suspicion. Whilst, in evidence, Anthony (after having been cross-examined at length and having had various hypotheses and facts put to him) conceded that the respondents (based on those hypotheses and facts) could not have been in possession of the firearm, this was clearly not the position on the ground at the time of the arrest. In this regard, the following interchange between Mr. Swarts and Anthony is illuminating:

“MR SWARTS: So, and you also testified that this object came from the left front of the vehicle?

MR ANTHONY: Left side, Your Honour.

MR SWARTS: Left side?

MR ANTHONY: Yes, Your Honour.

MR SWARTS: But you will agree with me it cannot come from the back?

MR ANTHONY: Look, Your Honour just came from the left side.

MR SWARTS: Ja but you will agree with me if my clients were in, at the back of the vehicle it could not have come from them?

MR ANTHONY No, we do not know if there is windows on the side, Your Honour.

MR SWARTS: Well but … but you are not testifying there were windows.

MR ANTHONY: No, Your Honour I am just saying it came from the …

MR SWARTS: Left

MR SWARTS: Left side of the vehicle, passenger side [intervenes].

MR SWARTS: Ja. So, if I put it to you, our instructions was is it closed at the back. If my instructions are it was impossible for them to throw the firearm out, you cannot dispute it?

MR ANTHONY: Yes, Your Honour [mumbling] possible for them to throw from the left-hand side of the canopy then it is impossible, Your Honour. ”

[14] I am accordingly of the view that the magistrate misdirected himself in this regard.

[15] The question thus arises as to whether, on the facts before the magistrate as pleaded, the appellant discharged the onus resting upon him to justify the continued detention subsequent to the arrest.

[16] As alluded to earlier in this judgment, the onus remains on the appellant to justify the continued detention. However, when such arrest is effected pursuant to the provisions of the CPA, the further detention is dealt with by the CPA itself in contradistinction to other legislation[2]. A useful summary of these provisions was set out by Eksteen J in the matter of Tembikile Jacobs v Minister of Safety and Security[3] as follows:

“[39] Against this background I revert to the present case. Once the jurisdictional facts set out in section 40(1)(b) of the CPA have been satisfied a peace officer may invoke the power set out in the section, i.e. he may arrest the suspect. If he decides to do so (and the exercise of his discretion is not in issue in this appeal) the provisions of section 39(3) of the CPA come into play. Section 39(3) of the CPA provides:

“(3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.”

[40] In the circumstances an arrest lawfully effected pursuant to the

provisions of section 40(1)(b) of the CPA results in the lawful detention, at least initially, of the arrestee. To this extent the present case is distinguishable from the situation which prevailed in either Zealand or Matshoba. An arrest is, however, fully regulated by legislation. Section 39(3) deals only with the general legal consequences of an arrest. Any subsequent detention which is not sanctioned by the CPA cannot be legalised by section 39(3). So, for example, the detention of a person lawfully arrested will become unlawful after the lapse of 48 hours if he is not brought before a court within the time prescribed by section 50 of the CPA. His detention will then become unlawful as a result of the failure to bring him before court within the prescribed time.

[41] On the pleadings in this matter which I have set out earlier herein

the appellant’s case was that his arrest and detention was unlawful because Makaula had no reasonable and probable cause to believe, nor did he have any belief that the appellant had been involved in an armed robbery. (Compare Minister of Safety and Security v Slabbert [2010] 2 All SA (SCA) 474 para [7] to [10] at p. 477-478.) On this understanding the respondent raised section 40(1)(b) of the CPA as a full justification not only for the arrest, but also for the ensuing detention. This was not met with an exception alleging that the plea lacked averments necessary to sustain a defence nor was any replication forthcoming. On this basis the parties proceeded to trial. On the pleadings therefore, provided the respondent is able to establish that the initial arrest was lawful, I think that it follows, ex lege, that the ensuing detention was lawful unless and until it becomes unlawful for some other reason. If the appellant, on the facts of this case, wished to rely on extraneous circumstances, outside of the arrest itself, for the contention that the detention became unlawful at some subsequent stage it was incumbent upon the appellant to plead this.”

[17] Because of this reasoning, the court in Jacobs concluded that it was necessary, once the arresting officer had established a lawful arrest pursuant to the provisions of the CPA, for a plaintiff claiming that the subsequent detention was unlawful to specifically plead the basis for such unlawfulness and as to when and how it arose. In this regard Eksteen J said:

“[42] The defendant cannot be expected to meet a case which has not been pleaded. (Compare Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) at para [50] on p. 385.) It is of course true that the onus would be on the respondent to justify the detention after the occurrence of such an alleged event, however, the onus can only arise when the issue giving rise to the alleged unlawfulness arises, i.e. when it is pleaded. (See Minister of Safety and Security v Slabbert supra at 480 para [21].)”

[18] The question which arises from this in the present matter is as to whether or not the respondents pleaded and placed before the court “extraneous circumstances” for the contention that the detention became unlawful at some later stage subsequent to the arrest. The relevant pleadings in this matter have been set out earlier in this judgment. Apart from pleading generally that “no reasonable grounds or sound reasons for his continued detention had existed” all that the respondents pleaded was that “the Plaintiff persistently professed his innocence and protested his continued detention”.

[19] In my view, these pleadings do not pass muster on the basis upon which the magistrate ultimately found the subsequent detention to have been unlawful, as I have set out above[4]. Indeed, on the magistrate’s reasoning, if Anthony had been aware at the time of the arrest that it was impossible for the

respondents, or either one of them, to have thrown the firearm out of the canopy at the back of the vehicle, there existed no real basis for forming a reasonable suspicion that they had been in unlawful possession of the firearm. It was on this basis that the magistrate ultimately found that the respondents ought to have been released immediately. But what of the public violence issue which still had to be investigated? And, as I have set out above, a concession was only extracted from Anthony years down the line and during the trial on the facts and hypotheses put to him that the respondents could not have been in possession of the firearm. He could not reasonably have been aware of this as at the time of the arrest.

[20] One must add to this mix the fact that the respondents at no stage testified as to precisely when they had, after having been arrested, “persistently professed” their innocence and/or protested their continued detention, as pleaded. It is thus clear that the magistrate did not find that they ought to have been released at any particular time simply because of their protestations. He found that they ought to have been released on a separate basis, a basis which had not been pleaded and a basis which was not sound on the evidence.

[21] None of this was dealt with in argument before us by the respondents[5]. Indeed, the respondents argued that the magistrate had been incorrect in finding that the arrest itself was lawful. All their argument was directed towards this point. As mentioned at the outset of this judgment, there was no cross-appeal by the respondents as against this finding. Accordingly, the question as to whether the magistrate was correct in finding that the arrest was lawful, is not before us.

[22] Having reached the conclusion that the magistrate was wrong and that the appeal should succeed, it is necessary to test this finding against the conclusions reached in another case which was decided on appeal in this division. That is the matter of Minister of Police v Leeran Le Roux[6].

[23] Le Roux’s matter arose out of the same incident that spawned the action and the appeal with which we are seized. In that matter, a different magistrate had concluded that the appellant (the same appellant as in this matter) had failed to justify the respondent’s arrest and detention, and had awarded him damages. The appeal court however found that the arrest had indeed been justified, but came to the conclusion that his subsequent detention had not. It accordingly set aside the finding relating to the unlawful arrest and awarded the same sum of damages for the subsequent unlawful detention.

[24] It seems that in that matter the pleadings were similar to those in casu, the respondent having apparently pleaded that “his detention was not justifiable because there was no reasonable ground therefor as he “persistently professed his innocence and protested his continued detention””. Apparently on similar evidence to that which was led in the present matter, that court concluded as follows:

“In this case, following the respondent’s lawful arrest, his subsequent detention was also lawful until he informed the police

that he had nothing to do with the shooting incident. It must be accepted in the absence of any evidence from the appellant, that

there was no prima facie proof that the respondent was involved in the shooting incident. His detention was, from the time that he gave that exculpatory statement, accordingly unlawful.”

[25] At first blush, it seems that this conclusion is the opposite to that which I have reached above. However, it must be remembered that that case, although it had its origin in the same incident, was decided in a different action and upon similar, but not the same, evidence. It appears from the judgment that more evidence was led by the respondent with regard to the occurrences subsequent to his arrest, and in particular he gave evidence about his insistence that he was an innocent victim. That evidence is not before us in the present matter. However, even if one were to infer, as is probable, that the respondents in this matter professed their innocence to the police, and in particular to the investigating officer, there is certainly no evidence as to such pleaded “persistence”.

[26] It also appears from that judgment that Jacob’s case was not referred to in argument as the court did not deal with it. Had it been, it may well be that that court may have come to a different conclusion. Finally, the magistrate’s reasoning in this matter may have been vastly different to the reasoning of the magistrate in that matter. I accordingly conclude that the cases are distinguishable but must add that I do not believe that that case was intended to be a precedent for the proposition that, in a case where a lawful arrest has been effected, the arrestee ought to be released upon informing the police that he had nothing to do with the crime involved.

[27] In all the circumstances, I propose the following order:

1. The appeal succeeds with costs.

2. The order made by the magistrate on 11 December 2018 is set aside and substituted with the following:

“The claim is dismissed with costs”.

R E GRIFFITHS

JUDGE OF THE HIGH COURT

VAN ZYL, DJP : I AGREE AND IT IS SO ORDERED

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

HEARD ON : 21 AUGUST 2020

DELIVERED ON : 22 SEPTEMBER 2020

[1] Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) at paragraphs 14 – 17

[2] See for example: Zealand v The Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC); Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A).

[3] Unreported judgment delivered on 23 September 2013 under case number CA 327/2012, Eastern Cape, Grahamstown. See also: Duncan v The Minister of Law and Order 1986 (2) SA 805 (A).

[4] See paragraphs 11- 13 above

[5] By agreement the appeal was not dealt with in open court in terms of the applicable covid regulations and was decided on the heads of argument submitted by the parties.

[6] Unreported appeal judgment of this division – Case No. CA&R 188/2017