Minister of Police v Foutie and Another (CA59/2020) [2021] ZAECGHC 26 (9 March 2021)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CA59/2020

In the matter between:

MINISTER OF POLICE Appellant

and

SIRAAJ FOUTIE

First Respondent

HILARION JOHN JACOBS

Second Respondent

JUDGMENT

GOVINDJEE AJ:

Introduction

[1] This is an appeal and cross-appeal against the judgment and order granted in favour of the respondents by the magistrate sitting in the Regional Court, Port Elizabeth. The respondents instituted action against the appellant for payment of damages totalling R400 000-00 each, together with costs of suit for the alleged pointing of a firearm and assault (the first claim) and for their wrongful and unlawful arrest and detention (the second claim). The magistrate dismissed the first claim for the alleged pointing of a firearm and assault without awarding costs, but found for the respondents on the second claim relating to their alleged unlawful arrest and detention and awarded them damages in the amount of R200 000,00 each (the second respondent’s payment to be

made to a Ms Jacobs, his mother), together with interest from the date of service of summons and costs. The appellant appeals against

the magistrate’s omission to award costs against the respondents when dismissing the first claim and for finding for them

on the second claim. The cross-appeal is against the dismissal of the first claim.

Background

[2] It is common cause that the respondents were arrested on 9 September 2016, without a warrant of arrest, on charges relating to possession of drugs. They were released without appearing in court just before midday on 12 September 2016, having been detained at the Gelvandale and Algoa Park police stations.

[3] The respondents alleged that their arrest was wrongful, unlawful and malicious on the basis that:

a) they did not commit an offence in the presence of a peace officer;

b) there was no reasonable suspicion that they committed a Schedule 1 offence;

c) the police members wrongfully and unlawfully entered a place of residence with a search warrant that did not include the supporting affidavit; and

d) the arresting officers failed to exercise any discretion at all.

[4] They further alleged that they were detained arbitrarily and without just cause at the Gelvandale and Algoa Park police stations on 9 September 2016, and that their detention and incarceration from that time until their release shortly after 11h00 on 12 September 2016 was wrongful, unlawful and without reasonable and probable cause, in addition to being a violation of their constitutional rights. It was claimed that:

a) there were no reasonable and/or objective grounds justifying their detention and incarceration;

b) the arresting officers, as well as the police officers at both police stations, failed to apply their minds to the detention and related circumstances; and

c) they were not released from police custody as soon as reasonably possible.

[5] The appellant denied that the arrest was wrongful and/or unlawful, and argued that the detention was in terms of section 39 read with section 50 of the Criminal Procedure Act, 1977[1] (‘the CPA’). In particular:

a) The arrest and detention was lawful and related to possession of 16 packets of tik, alternatively dealing drugs, which are offences in terms of the Drugs and Drug Trafficking Act, 1992;[2]

b) The arrest and subsequent detention was justifiable in terms of section 40(1)(h), alternatively section 40(1)(a), of the CPA.

Grounds of appeal

[6] The Notice of Appeal highlights the following specific grounds of appeal stemming from alleged misdirection on the part of the court a quo:

6.1 Erroneous substitution of Ms Jacobs as executrix of the second respondent’s estate;

6.2 Failure to award the appellant costs for successfully defending the

respondents’ first claim;

6.3 Conflation of an unlawful search claim with the claim for unlawful arrest and detention, resulting in the incorrect finding that the appellant is liable for the latter claim, alternatively that the claims in this respect were not pleaded or did not require a decision;

6.4 Excessive awards of damages in the amount of R200 000-00 for each of the respondents, also when considering that the second respondent was deceased and could not testify on the issue of damages at the trial;

6.5 Erroneously awarding interest from date of service of summons to date of

payment, instead of awarding interest from date of judgment.

[7] The respondents’ cross-appeal focuses on a range of factual findings, alleged contradictions, omissions and misdirections in the judgment of the court a quo.

Condonation

[8] The appellant failed to note its appeal within the prescribed period and its application for condonation was vigorously opposed. The notice of appeal was just over five months late and the application for condonation was delivered approximately three and a half months thereafter.

[9] Condonation is not a mere formality and is not to be had ‘merely for the asking’.[3] An explanation is required not only for the delay in the timeous prosecution of the appeal but also for the delay in seeking condonation for non-compliance. The appellant must show that it did not wilfully disregard timeframes provided for in the rules of court and that there is sufficient or good cause for excusing non-compliance. Condonation may be refused in cases where there is a flagrant breach of the rules and when no explanation is offered.

[10] The administration of justice requires that matters should be dealt with efficiently and without delay. Applications for condonation should generally be brought as soon as possible once it is realised that there has been non-compliance with a rule of court, and courts rightly deplore applications for condonation occasioned (even in part) by the neglect of legal representatives.

[11] Similarly disappointing is the tendency to file unnecessarily voluminous papers to argue the condonation issue, with personal comments and undertones included to boot. A different approach might have resulted in the court being better directed to the real issues that require resolution, without undermining the legal position of the parties whatsoever.

[12] In the case of Melane v Santam Insurance Co Ltd[4] the Appellate Division explained the broad approach to be adopted in such an enquiry:

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated; they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.’

[13] As indicated, in this case the parties’ representatives have gone to extraordinary lengths to explain their versions of the reasons for the delay, and whether or not condonation should be granted. In a nutshell, the delay was caused by a change in personnel at the state attorney’s office and the workload confronted by the person who took over the files of a colleague who had resigned. A further delay of approximately two months was occasioned by the appellant’s counsel’s decision to file the condonation application together with heads of argument in the appeal. It would certainly have been more prudent to adopt a different approach given that the application was already late.

[14] Fortunately for the appellant, its prospects of success are strong, for reasons that will appear below, and compensate for the lengthy delay in noting the appeal and applying for condonation.[5] It is also noteworthy that the number of unlawful arrest and detention cases involving the appellant have increased considerably.

Persons in the position of the respondents may be awarded substantial damages based on the conduct of the appellant’s employees, and there is public interest in decisions of lower courts being subjected to scrutiny by this court (in addition to the constitutional right to access to courts).

[15] On an objective assessment of all the facts, I am of the view that the appellant has shown sufficient cause for condonation to be granted, and that this court should exercise its discretion accordingly. This does not imply that the suboptimal functioning of the state attorney’s office should be considered to be a general justification for delay in all such cases. Future cases must be assessed on their own facts.

[16] Given the periods of delay in question, there should be no order as to costs in respect of the condonation application.

Evidence

[17] The first respondent testified that various employees of the appellant entered his residence without uniform by opening an unlocked door and barging in without identification. The police entered with multiple small bags containing a white substance likely to be tik. A rifle was pointed at the first respondent, who was worried that he may be shot and raised his hands. The room was searched, he was handcuffed with hands behind his back, and wrapped in a blanket. The police officer advised the first respondent that he

would be made to “shit water” if he did not speak. Alone in the room with the first respondent, he then made the first

respondent lie down on the floor, sat on top of him and smothered his face with plastic torn from the base of the bed. This smothering

occurred a few times, which made the first respondent feel like screaming because he was suffocating. The plastic was removed repeatedly (four or five times) at the moment that consciousness might be lost, and the first respondent repeatedly screamed in the hope that somebody would hear and assist. The first respondent was then pulled up, the blanket was removed and he was taken to the lounge and made to delete recordings from an installed camera system capturing external footage.

[18] The second respondent was taken to the bedroom, handcuffed, during this time for approximately 15-30 minutes. He returned with tears in his eyes and looking shaken. What occurred in that room was inaudible to the first respondent. Thereafter the police undertook a search of the premises without producing a search warrant or any paperwork and without any consent. People in the street, including the neighbours, observed the police taking the respondents in the police vehicle, causing humiliation. At the Gelvandale Police Station, they were made to sign a document without explanation, related to a drugs possession charge. The document was not read to the respondents in its totality, and they were then taken to Algoa Park Police Station without being informed of the right to apply for bail.

[19] Conditions at the Algoa Park Police Station were abysmal. Four people were housed in a small room, with filthy toilet facilities, no toilet paper and a dirty, itchy single blanket covering a thin mattress on the floor. The first respondent urinated on the floor by the door rather than use the toilet facilities, and ate dry bread and drank bitter coffee, other than food brought from home by his mother. The first respondent was charged at 8pm on Saturday 10 September 2016 by Officer de Koning and could not remember being informed about his right to apply for bail.

[20] The second respondent’s mother and sister (Daina Jacobs) also testified, the latter indicating that her brother was pushed to the ground and pointed at with a gun in the living room.

[21] Warrant Officer Makubalo denied that the respondents were assaulted. A search warrant had been obtained and he and Warrant Officer Kala were present during the arrests. The premises had been secured by the Operational Unit of the appellant prior to their entry. He and Kala had introduced themselves and produced the search warrant. They were given permission to search the house. When the second respondent stood up from the couch, they observed tik in small money bags. Kala enquired to whom the drugs belonged and both respondents admitted that the drugs belonged to them, that they had bought the drugs on the street for smoking. Kala informed them that he was arresting them, and explained their rights. They were then handcuffed and, after a search of the premises, taken

to Gelvandale Police Station where a case was opened. The respondents were eventually taken to Algoa Park Police Station and booked into the cells there. Makubalo completely denied the first respondent’s version of events, and that of Jacobs.

[22] Kala’s testimony largely supports that of Makubalo. They were together at all material times and Kala had given the search warrant to the second respondent. Once the tik was found he asked both respondents about the substance. They had told him that they had bought the drugs off the street and were going to smoke it. He had arrested the respondents for possession of drugs and explained their constitutional rights. Kala denied the version of events presented by the first respondent.

[23] Warrant Officer De Koning’s evidence was that he had charged the respondents on the evening of 10 September 2016 with possession of drugs. There was a prima facie case and he had followed the procedure by taking a warning statement, provided details about the charge, confirmed understanding and obtained signatures in confirmation, as well as provided information about the applicable constitutional rights. The respondents were also informed that they had the right to apply for bail if they wanted to be released on bail, as the police could not do so. The respondents did not request to be released on bail.

The magistrate’s findings

[24] It is important to carefully consider the findings of fact of the trial court in determining this appeal. It is trite that an appeal court should be very reluctant to upset findings of fact of the magistrate given that he or she has had the advantage of listening to the evidence presented, and observed the demeanour of the witnesses and the like. The magistrate was also in a better position to draw inferences. Nevertheless, a court on appeal may disregard factual findings in whole or in part if the judgment or record demonstrates that there has been a misdirection. An appeal court may then come to its own conclusion on the matter.[6]

[25] The magistrate in this case found that the appellant’s employees had followed protocol in seeking to give effect to the search warrant. A team had entered the premises to secure it prior to the search, and there was no intention to act unlawfully or to cause harm to the occupants of the house. The search warrant had proved to be invalid on a mere technicality, but this could not on its own invalidate all the subsequent conduct for purposes of the separate delictual claims.

[26] The first respondent’s version of an assault was found to be highly improbable and rejected, together with the claim based on gun pointing. The appellant’s employees could have placed the drugs on the person of the respondents had their intention been to frame them. These were senior and specialised officers and it was highly improbable that they would conduct themselves in such a manner. The first respondent’s version that he had deleted the camera footage was improbable, given that he was wearing handcuffs at the time. As a result, the respondents’ first claim failed.

[27] In respect of the second claim, the magistrate concluded that police officers had entered the house without permission, which was a breach of constitutional rights. The accompanying affidavit to the search warrant was absent, and resulted in its invalidity. The appellant’s employees became aware of that only on Monday 12 September 2016. In rejecting the section 40(1)(h) and section 40(1)(a) defences, the magistrate held as follows:

‘Accordingly the employees of the defendant were acting in terms of a search warrant. To now plead that they acted in terms of section 40(1)(a) cannot be justified since they could not acted (sic) with two mind-sets…at the time of their presence at the house the search warrant was their focus. The defendant now pleads that they acted in terms of section 40(1)(h) which can only be a fabrication. They could not have conducted themselves with two mind sets.’

[28] It may be mentioned, in passing, that counsel and this court grappled with understanding the meaning of this particular explanation, which was devoid of reasoning and unsupported by any authorities. The magistrate’s judgment was notably imbalanced. It included a fair assessment of the evidence, detailed references to the quantification of damages and the issue of interest, but lacked sufficient detailed analysis in respect of the crux of the dispute between the parties.

Analysis

[29] People have the right to be free from unlawful arrest and detention. The arrest of individuals without justification amounts to an infringement of liberty and human dignity, and constitutes a violation of various constitutional rights.[7]

[30] Police officers are granted extraordinary powers of arrest in terms of the CPA. The provisions of section 40(1) constitute a justifiable limitation of constitutional rights, provided that the jurisdictional facts for a lawful arrest have been

established.

[31] Section 40(1)(h) states:

‘A peace officer may without warrant arrest any person who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs…’

[32] It is settled that section 40 requires the existence of a particular factual situation in order to justify an arrest. If it does, the arrest may be made.[8] What is required, for section 40(1)(h) compliance, is the following:[9]

a) The arresting officer must be a peace officer;

b) The arrester must entertain a suspicion;

c) The suspicion must be that the suspect was committing or had committed an offence related to possession of dependence-producing drugs (in this instance); and

d) The suspicion must rest on reasonable grounds.[10]

[33] If the jurisdictional requirements are satisfied, the peace officer may arrest the suspect, and must properly exercise a discretion as to whether or not to exercise that power.[11]

[34] In Mabona v Minister of Law and Order,[12] the court explained the formation of a reasonable suspicion as follows:

‘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…? 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.’

[35] In my view this is precisely what occurred in this instance. The required jurisdictional facts are present and the discretion to

arrest was properly exercised. On the accepted evidence, and on an objective approach, Kala, a peace officer, held a reasonable

suspicion that the respondents were committing an offence related to dependence-producing drug possession. The suspicion was based on what was observed (the 16 small packets / bags of tik in or on the couch when the second respondent stood up) and supported by the verbal confirmation provided by the respondents. The officer exercised his discretion accordingly.[13] The purpose of the arrest was to bring the respondents before court, and was necessitated by the uncovering of the drugs at the

premises.[14]

[36] In arriving at this conclusion, the suggestion that an invalid search warrant, coupled with the failure to warn the respondents about constitutional rights prior to questioning, vitiated the lawfulness of the arrest and subsequent detention must be rejected in the context of a civil claim.[15] To hold the appellant responsible for damages for an unlawful arrest and detention on the ground that a search warrant failed to include an attachment would lead to injustice.[16] Similarly, the suggested extension of an arrested person’s constitutional rights (to remain silent, to be informed promptly of this right and the consequences of not

remaining silence, and related rights) to all persons questioned prior to any arrest cannot be accepted.[17] To do so would compromise the ability of the police to perform their duties to investigate criminal activity. Even if such an approach

might be warranted in considering the admissibility or assessment of evidence at a criminal trial,[18] to claim the extension of the right for purposes of establishing an unlawful arrest and detention civil claim would be a step too far.

[37] Even where an arrest is lawful, a police officer must apply his or her mind to the arrestee’s detention and the circumstance relating thereto. This includes considering whether detention is necessary at all.[19] Failure to do so is unlawful and the police bear the onus to justify an arrest and detention until a first appearance in court.[20]

[38] The authority to detain is inherent in the power to arrest, and is exhausted once the arrestee is brought to court as soon as reasonably

possible and at least within 48 hours (subject to court hours).[21] In my view the detention was justified given the offence for which the respondents were charged on 10 September 2016. A proper process was followed and all the evidence suggests that the respondents were informed of their rights and decided not to apply for bail. They therefore did not adduce any evidence to permit their release from detention and no fault can be attributed to any representatives of the appellant in respect of the respondents being held in custody.[22] The unlawful detention claim must therefore fail.

[39] It is clear from an overall consideration of the evidence presented that the magistrate’s findings in relation to the first claim should not be altered. Although that judgment does not say so expressly, it is implicit that the evidence of the first respondent and Daina Jacobs must be rejected and the appellant’s version of events preferred. The cross-appeal must therefore be dismissed.

Costs

[40] Although the respondents’ claims have been found to lack merit, it cannot be said that the litigation has been frivolous or vexatious. The question remains whether the court should depart from the general rule that costs should be awarded to a successful party.[23] In particular, does the ‘Biowatch principle’ apply so that the respondents should not be mulcted with a costs order on the basis that the claims raise constitutional issues?

[41] This issue has been considered in some detail in Schuster. The SCA concluded as follows:

“In summary: following well-established precedent, the present case is plainly not, in any useful sense, a ‘constitutional matter’. Suing the police for damages for wrongful arrest and detention is not the same as testing one’s constitutional rights. This case turned solely on the facts. To borrow, once again, from Madlanga J in Mbatha, ‘where it is clear that the substance of the contest between parties is purely factual, it cannot be said to raise a constitutional issue purely because the applicant says it does’. To apply the ‘Biowatch principle’ in such cases would open the floodgates for opportunistic claims which may nevertheless fall short of being categorised as ‘frivolous’ or ‘vexatious’. It would promote risk-free litigation. The potential consequences are deeply disturbing. To deprive the successful appellants, the Minister and the NDPP, and, by extension, the fiscus itself, of costs in the

present matter would be unjust and inequitable. It would also lack a rational foundation. Costs must follow the result.’ (Footnotes omitted.)

[42] The same considerations apply in this case, and the case before the magistrate and indeed before this court turned on the facts, rather than on any real ‘novel or abstruse principle that has not yet been tested in the courts’.[24] Costs should therefore follow the result.

ORDER

1. The application for condonation is granted with no order as to costs.

2. The appeal is upheld with costs

3. The cross-appeal is dismissed with costs.

4. The order of the court a quo is set aside and replaced with the following:

‘The plaintiffs’ claims are dismissed with costs’.

_____________________

A. GOVINDJEE

ACTING JUDGE OF THE HIGH COURT

REVELAS J:

I concur.

_______________________

E REVELAS

JUDGE OF THE HIGH COURT

Obo the Appellant : Adv F Petersen

Instructed by

: Zilwa Attorneys, 100 High Street, Grahamstown

Ref: Ms van Rooyen

Tel: (046) 622 2047

Obo the Respondent : Adv M du Toit

Instructed by

: Dold & Stone Inc, 10 African Street, Grahamstown

Ref: Ms Wolmarans

Tel: (046) 622 2348

Heard

: 5 March 2021

Delivered

: 9 March 2021

[1] Act 51 of 1977.

[2] Act 140 of 1992.

[3] Uitenhage Transitional Local Council v South African Revenue Services 2004 (1) SA 292 (SCA) at para 6.

[4] 1962(4) SA 531 (AD) at 532B-E

[5] See Miza v The MEC for the Department of Health, Eastern Cape Province and another (2010) JOL 24859 (Tk) at para 9.

[6] R v Dhlumayo and another [1948] 2 All SA 677 (A). Also see S v Monyane 2008 (1) SACR 543 (SCA) at para 15.

[7] Matebese v The Minister of Police [2019] ZAECPEHC 37 at para 21.

[8] Matebese at para 22. An acquittal or non-prosecution is irrelevant for this purpose: Matabese at para 23.

[9] Modified from Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818H. Section 40(1)(a), similarly, refers to a peace officer arresting any person who commits or attempts to commit any offence in his presence, without a warrant.

[10] See Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA).

[11] Duncan v Minister of Law and Order. The grounds on which the exercise of such a discretion can be question are narrowly circumscribed.

[12] 1988 (2) SA 654 (SE) at 658E-H. Also see Scheepers v Minister of Safety and Security 2015 (1) SACR (ECG).

[13] Cf Minister of Safety and Security v Kruger [2011] ZASCA 7, where a reasonable suspicion was not pleaded and on the facts it was held that the police had purported to do no more than to execute an instruction contained in a warrant. In Matabese, it was considered trite that police officers purporting to act in terms of section 40(1)(b) should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of lawful arrest. Also see Shidiack v Union Government (Minister of the Interior) 1912 AD 642 at 651-652.

[14] See Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) at para 42; Also see Mtwalo v The Minister of Safety and Security [2014] ZAKZPHC 18 para 31.

[15] See, for example, Liebenberg v Minister of Safety and Security and Another [2009] ZAGPPHC 88. The court had no difficulty in finding that an arrest without warrant subsequent to detailed questioning was valid. It was also held that it is conceivable that a reasonable suspicion can be formed where a person is seen at the scene of a crime and gives a false alibi under interrogation or refuses to answer any questions.

[16] In terms of section 21(2), the issued search warrant requires a police official to seize the article in question and, to that end, authorises the police official to enter and search any premises identified in the warrant and to search any person found on or at such premises. A copy of the warrant must be provided upon demand to a person whose rights in respect of any search or article seized under the warrant have been affected: section 21(4). The court was referred to Goqwana v Minister of Safety NO and Others [2015] ZASCA 186: in that case a search warrant was set aside because the affidavit on which it was based did not accompany the warrant when executed. That case dealt with a search related to a statutory offence and resulted in the return of seized goods. It was unconcerned with a damages claim for wrongful arrest and detention.

[17] See S v Manamela [2000] ZACC 5 at para 38. In the context of the right to silence and a limitations analysis of a statutory provision, the majority held that ‘there is nothing unreasonable, oppressive or unduly intrusive in asking an accused who has already been shown to be in possession of stolen goods to produce evidence that he had reasonable cause to believe that the goods were acquired from the owner or a person authorized to dispose of the goods. Also see T van der Walt and S de la Harpe ‘The right to pre-trial silence as part of the right to a free and fair trial: An overview’ African Human Rights Law Journal (2005) (5) 70-88, 81.

[18] See Gumede v S [2016] ZASCA 148 at para 24.

[19] Mvu v Minister of Safety and Security [2009] ZAGPJHC 5 at para 10.

[20] Minister of Law and Order v Hurley 1986 (3) SA 568(A) at 589E-F.

[21] Sekhoto at para 42.

[22] Minister of Safety v Schuster [2018] ZASCA 112 at para 15.

[23] See Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467, as cited in Shuster at para 16.

[24] Schuster at para 25.