Minister of Police v Dhali (CA327/2017) [2019] ZAECGHC 16 (26 February 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA327/2017

Date heard: 15 February 2019

Date delivered: 26 February 2019

In the matter between:

MINISTER OF POLICE

Appellant

and

M D SAHALAM DHALI

Respondent

JUDGMENT

LOWE, J

INTRODUCTION

[1] This is an Appeal against the Judgment of a Regional Court Magistrate (Port Elizabeth) in which the Magistrate found for Respondent (Plaintiff a quo) ordering Appellant (Defendant a quo) to pay to Plaintiff the sum of R130,000.00 with costs arising from his finding of unlawful arrest (I shall refer to the Parties as Plaintiff and Defendant).

[2] Plaintiff’s claim arose from an arrest without a warrant on 24 October 2014 at Kleinskool, Port Elizabeth at 23h30, in the street, after having been ordered out of his vehicle by the police, he being

detained thereafter until Monday 27 October 2014 (in the morning) after a Court appearance.

[3] The Defendant pleaded that the arrest and detention was at the instance of members of the South African Police Force acting lawfully in terms of Section 40(1)(b), alternatively Section 40(1)(f) of the

Criminal Procedure Act 51 of 1977 (the Act) as read with Section 205 of the Constitution, he having been reasonably suspected of having committed the offence of attempted murder.

[4] I should say immediately that any reliance on Section 40(1)(f) of the Act was clearly misplaced and thus falls to be ignored.

THE MAGISTRATE’S REASONS:

[5] Having heard the evidence, and Defendant bearing the onus of justifying the arrest, the Magistrate held:

[5.1] That the version of Plaintiff and Defendant’s witnesses were in the main irreconcilable but that on the appropriate approach to the evidence he could not find “any meaningful deviation in his (Plaintiff’s) pleaded and testified versions to justify a finding that he was dishonest or unreliable as a witness”.

[5.2] That Defendant failed to discharge the onus of justifying the arrest.

[5.3] That the detention for two and a half days (three nights) having regard to the evidence justified a damages amount of R130,000.00.

[5.4] That Plaintiff, whose mother tongue is Bengali, was totally out of his depth in testifying, was very nervous and could not remember or testify to detail but “despite this ... was satisfied that the witness was truthful and reliable”.

[5.5] That Defendant had “no reason” to arrest Plaintiff.

[5.6] That Sergeant Joubert, the arresting officer and principal defence witness, was not a “good witness” and that the failure to call his passenger policeman to corroborate his version was significant.

[5.7] That the probabilities favoured the Plaintiff’s version.

THE APPROACH:

[6] As is well known where, as in this case, the Magistrate’s factual and credibility findings are challenged, the principles as set out in R v Dhlumayo and Another [1] are applied. In summary the judicial officer at trial has seen and heard the witnesses and consequently an Appeal Court will be slow to upset the findings made both on the facts and credibility. Where there is no misdirection of fact the presumption is that the conclusion is correct and this will only be reversed if the Court is convinced that it is wrong. Even if the Appeal Court is in doubt as to the conclusions correctness, it will be upheld. Only in the face of a misdirection of fact, or other facts or probabilities overlooked, will the Appeal Court come to its own conclusion. To succeed it must be shown that there was some miscarriage of justice or violation of principle of law or procedure.

[7] In this matter I am satisfied that, save for what follows, the Magistrate’s findings on fact and credibility have not by any means been shown to have been such as to warrant interference and are presumed thus to be correct.

[8] The only real issue in this Appeal is whether, having rejected Defendant’s version correctly on the facts, the Magistrate erred in failing to consider whether on Plaintiff’s facts the arrest was nevertheless justified. I should say immediately that I discard any adverse inference drawn in this matter linked to the fact that the passenger in the Police vehicle was not called to give evidence, it not being established that he was available if so called.

THE LAW:

[9] In Duncan v Minister of Law and Order [2], it was held that the jurisdictional facts for a Section 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.[3]

[10] The suspicion that must be held must, in order to be a reasonable one, be objectively sustainable, in the sense that it must rest on reasonable grounds.[4]

[11] The jurisdictional fact for an arrest without warrant in terms of these provisions remains a suspicion. In Mabona & Another v Minister of Law and Order and Others [5], the following was said in relation to how a reasonable suspicion is formed:

“Would a reasonable man in the second defendant's position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty. 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 an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in 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.”[6]

[12] In Minister of Police and Another v Du Plessis[7] Navsa ADP stated as follows:

“[14] Police bear the onus to justify an arrest and detention. In Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589E – F the following is stated:

'An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.'

[15] Our new constitutional order, conscious of our oppressive past, was designed to curb intrusions upon personal liberty which has always, even during the dark days of apartheid, been judicially valued, and to ensure that the excesses of the past would not recur. The right to liberty is inextricably linked to human dignity. Section 1 of the Constitution proclaims as founding values, human dignity, the achievement of equality and the advancement of human rights and freedoms. Put simply, we as a society place a premium on the right to liberty.

[16] In Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (2) SACR 1 (CC) (2008 (4) SA 458; 2008 (6) BCLR 601) para 24 the following is said:

'The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of liberty, whatever form it may have taken.'

[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.”

[13] It is trite that police officers purporting to act in terms of Section 40(1)(b) of the Act should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of lawful arrest.[8] It is expected of a reasonable person to analyse and weigh the quantity of information available critically and only thereafter, and having checked what can be checked, will he form a mature suspicion that will justify on arrest.[9]

THE FACTS:

[14] I will set out the essential facts which have been established on the Magistrate’s assessment and credibility findings.

[15] Constable Joubert, on duty, was patrolling in his marked police vehicle accompanied by another policeman on duty. He was informed by the community that a shooting had taken place and was shown the direction the suspect (one in number) had taken. He was, so he claims, informed that “the suspect was in a blue bakkie”. He said on continuing in his vehicle he saw a blue bakkie, his allegation that this travelled zigzagging in a high speed chase falls to be rejected as suggested by the Magistrate. Putting on his vehicle’s police light he pulled the vehicle over stopping in front of it (which I accept in his favour) and one by one extracted and searched the passengers, three in number. The vehicle was driven by Plaintiff. The third passenger lay on the back seat with hands under the front seat and a cocked firearm was found under the seat. The Magistrate correctly doubted Joubert’s version that he was told of a “blue bakkie” at all. Joubert sent the rear seat passenger to the shooting scene for identification (but not Plaintiff, Plaintiff’s vehicle or his front passenger) and arrested the two prior to hearing of the result of the identification investigation.

[16] His arrest of Plaintiff and front passenger, he says was because he thought they were involved in the shooting. This though he most certainly had but the question is whether this was objectively justified and complied with Section 40(1)(b) of the Act. The arrest was for attempted murder. The only question Plaintiff was asked was “whose firearm had been found” – he replied that he did not know. He took no steps to then and there, and prior to the arrest, asked for Plaintiff’s version let alone investigate this if exculpatory – which on the probabilities it would have been.

[17] Detective Mitchell’s evidence is effectively irrelevant, save that he said that when he attended the shooting scene he was told of a single gunman who ran in a direction towards Ext 27 after the shooting. He confirmed that one person, the suspect, was brought for identification to the scene. Later he took a statement from the main suspect which exonerated Plaintiff – who was still not released at that time and was held for a further day.

[18] Plaintiff, a temporary resident in South Africa, was driving his uncle’s blue Nissan V6 bakkie looking for premises to rent on the evening in question, accompanied by Mr Mohamed in the front seat. The main suspect was walking in the road and asked Mohamed for a lift – they complying. Plaintiff did not know this person and took little notice of him. As he drove he noticed a police vehicle behind him with blue lights and stopped forthwith – he was told to get out of the vehicle and was searched as he lay on the ground.

[19] When the firearm was found he denied all knowledge thereof.

[20] He was arrested at the scene after the firearm was found and prior to any word on the identification of the prime suspect having been received.

[21] He was kept in a cell which was in appalling condition as described by the Magistrate.

[22] The arresting officer Joubert gave him no chance to give any explanation as to what had happened and most certainly conducted no further investigation prior to arrest. He did not take the vehicle or Plaintiff to the scene to see if he or the vehicle could be identified as relevant, nor gave the Plaintiff the opportunity, if he so wished, of giving an explanation as to what had happened – let alone conduct any further enquiry or investigation.

THE RESULT:

[23] In summary, on the acceptable facts, the arrest depended, at best, on a tenuous link to the scene via certain bystanders and the fact that a firearm was found under the back seat of the vehicle.

[24] Joubert’s failure to take any further steps to investigate, prior to arrest, speaks volumes.

[25] The real argument – which no one addressed in the Heads of Argument was whether on the acceptable facts as set out above, and as proved, the arrest was justified and lawful.

[26] In my view the said facts do not, especially in the absence of steps taken to verify any single aspect relevant, or to give Plaintiff an opportunity, however limited, of explaining the presence of the back seat passenger and firearm, in any way justify an arrest on the requisite objective test as set out above.

[27] In the circumstances I am unpersuaded that the Magistrate erred in any material aspect, nor was his finding ultimately incorrect on the merits.

[28] The Notice of Appeal dealt with merits only and not the quantum of the award – although the quantum I should say was perfectly in order on the aggravated facts.

[29] In the result the following order issues:

1. The Appeal is dismissed with costs.

2. The Magistrate’s order is confirmed.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

JAJI, J:

I agree.

N P JAJI

Obo the Appellant: Adv V Madokwe

Instructed by: Whitesides Attorneys, Grahamstown

Obo the Respondent: Adv J Barker

Instructed by: N N Dullabh & Co, Grahamstown

[1] 1948 (2) SA 677 (A)

[2] 1986 (2) SA 805 (A).

[3] At 818H-I; See also Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA).

[4] Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818H

[5] 1988 (2) SA 654 (SE)

[6] At 658 E-H.

[7] 2014 (1) SACR 217 (SCA) at paragraphs 14 – 17.

[8] Louw & Another v Minister of Safety and Security & Others 2006 (2) SACR 178 (T); Liebenberg v Minister of Safety and Security [2009] ZAGPPHC 88 (18 June 2004).

[9] Mabona (Supra)