Minister of Police v Gilmer and Another (326/2020) [2021] ZAECGHC 38 (22 February 2021)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No. CA 326/2019

In the matter between:

MINISTER OF POLICE

Appellant

and

ANGELO GILMER

First Respondent

CERISTON KETTLEDAS

Second Respondent

APPEAL JUDGMENT

HARTLE J

[1] The appellant (the defendant in the trial court) appeals against a judgment of the Magistrate Court in Uitenhage pursuant to which the court found in favour of the respondents (the plaintiffs in the trial

court) in an action for damages for unlawful arrest and detention.

[2] The claim stemmed from the arrest of the respondents at the Family Violence and Child Protection Unit of the South African Police

Service at Uitenhage[1] on 3 October 2014 on charges of the kidnapping and assault of a minor boy aged 13 years at the time. The offences were alleged to have been committed a few days earlier on 28 September 2014.

[3] It is common cause that the arrest was effected without a warrant.

[4] It was conceded at the trial that the appellant bore the onus to justify the respondents’ arrest and detention and the respondents to prove the alleged improper exercise by the arresting officer of his discretion to arrest them on the basis outlined in the particulars of claim.

[5] In their particulars of claim the respondents pleaded that the arrest was unlawful due to the following reasons:

“5.1 the members of the Defendant had no lawful reason for arresting the Plaintiffs.

5.2 The arrest was done for a purpose not intended by the legislature and simply to harass the Plaintiffs;

5.3 The members of the Defendant did not entertain a reasonable suspicion

that the Plaintiff had committed an offence.”

[6] The issue of the improper exercise of discretion was pleaded as follows:

“5.4 Even in the event of the Court finding that the members entertained a reasonable suspicion that the Plaintiff had committed an offence, which is denied, they failed to exercise their discretion in a fair and rational manner, or at all, by having no regard to other less invasive methods of securing the Plaintiffs’ attendance at court and by failing to take into account the following relevant considerations in determining whether or not to arrest them:

5.4.1 The Plaintiffs were not a flight risk;

5.4.2 the Plaintiffs were both permanently employed in the district of Uitenhage;

5.4.3 The offence for which they had been arrested had been committed more than 5 days prior to their arrest;

5.4.4 The Plaintiffs were both permanently resident within the area of jurisdiction of Uitenhage; and

5.4.5 The Plaintiffs did not pose a threat to the complainant or any witness in the case for which they were arrested.”

[7] The respondents pleaded that their detention was unlawful for the following reasons:

“7.1 It (their detention) followed the unlawful arrest as set out above and therefore had no legal justification.

7.2 The members, instead of detaining the Plaintiffs, could and should

have furnished the Plaintiffs with a written notice to appear in court in terms of Section 56 of Act 51 of 1977.

7.3 Even if the court finds that the arrest as set out above was lawful,

which is denied, the detention was unreasonably long.”

[8] The appellant admitted the arrests but sought to justify them on the basis set out in section 40 (1) (b) of the Criminal Procedure Act, No. 51 of 1977 (“the CPA”), which provides that a peace

officer may without a warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.

[9] In order to succeed on this basis, the appellant was required to establish the usual four jurisdictional requirements for such a statutory defence, namely:

(a) that the arrestor was a peace officer;

(b) that the arrestor entertained a suspicion;

(c) that the suspicion was that the suspect had committed an offence

referred to in Schedule 1; and

(d) that the suspicion rested on reasonable grounds.”[2]

[10] As for the factual basis underlying the suspicion held, the appellant pleaded that the respondents had committed kidnapping and assault, both being Schedule 1 offences.[3] (Sic) It was further pleaded that before effecting the arrests the arresting officer had duly investigated the allegations against the respondents and was satisfied on the basis of a pointing out and information furnished to him by both the complainant and other witnesses that the respondents had participated in and/or had assisted each other in the commission of the offences.

[11] As for the complaint that the arresting officer had failed to exercise his discretion to arrest the respondents in a fair and rational manner or at all in the respects alleged in the particulars of claim, the appellant pleaded that when arresting them the arresting officer had the intention to bring them to court. It was further asserted that he had acted in terms of section 205 (3) of the Constitution and had otherwise exercised his discretion reasonably, bona fide, fairly and within the bounds of rationality.

[12] Concerning the claimed unlawful detention, the appellant pleaded that the respondents’ detention was justified following their lawful arrest on the basis contemplated in section 39 (3) of the CPA.[4]

[13] The purportedly delayed pre-trial detention was also denied, the appellant pointing out that the respondents were lawfully detained for the briefest period and that reasonableness had prevailed in every respect of Captain Mdayi’s handling of the process.

[14] The allegation that the appellant could and should - instead of detaining the respondents, have furnished them with a written notice to appear in court in terms of section 56 of the CPA was also placed in issue.[5]

[15] It was not in contention at the trial that the arresting officer, one Captain Mdayi, was a “peace officer”, nor that he had indeed entertained a suspicion that the offence of kidnapping at least (which is an offence referred to in Schedule 1) had been committed by the respondents. What was in issue however was whether Captain Mdayi’s suspicion was reasonably held.

[16] The only witness to testify was Captain Mdayi who explained what steps he took leading up to the respondents’ arrest and immediately thereafter straddling the brief period of their detention.

[17] At the relevant time he was deployed to the Family Violence and Child Protection Unit especially tasked with investigating matters concerning complainants who are minor children. He received the docket in the matter on 30 September 2014. There were three statements contained in it detailing the events of 28 September 2014 which overwhelmingly describe certain criminal behavior by adult male assailants. The first statement was taken from the complainant (who I shall refer to herein as “AP”), the second from an independent witness (Mr. Makaleni) and the third from a police officer, one Constable Jama. All three were entered into evidence by consent (Exhibits “A”, “B” and “C” respectively). Since they form the basis for his reasonable belief that the two assailants referred to therein had committed offences of kidnapping (and assault), it is necessary to repeat their contents.

[18] AP stated as follows:

“On Sunday, 2014/09/28 at about 09h50 I was walking to town with my friend, BR. A black Golf then passed us. Then my friend greeted them. While the Golf entered Spar near the hospital. The Golf came to our direction wanting to bump my friend and drove onto the pavement. My friend and I ran away and a red vehicle braked in front of us. The driver in the red vehicle climbed out of the vehicle and grabbed me on my chest. He is a tall coloured male driving the red vehicle, and said they will beat me. The white male driving the black Golf came by, wanted to pepper spray me. The white male forced me to climb in the Golf and I refused. The white male called the coloured male with the red vehicle and said he must grab me on my feet while he was grabbing or holding my hands behind my back. They took me in the black Golf and drove to the golf course. They took me out of the vehicle on our arrival at the golf course. They kicked me and stepped on me while I was lying on the ground. I then stood up and the white male grabbed and pushed

me against the container. The coloured male opened the container. The while male sprayed pepper spray in the container and locked me in there. He then said he will contact the police for me while I don’t even know what I’ve done. I remained in the container banging on the door and walls seeking for help.”

[19] Mr. Makaleni explained in his statement what he had witnessed from his perspective as follows:

“On Sunday, 2014/09/28, at about 09h56 I was on my way to drop my passengers off at the hospital. I saw a black Golf with registration number DND 931 EC, facing oncoming traffic in Channer Street with their lights on. I saw three white males in this black Golf fighting and struggling with one another in the vehicle. From my afar observation I got next to the vehicle to check what the problem was. I saw that two males were beating a little boy at the back seat of the vehicle while one of them went to the driver’s seat and drove off. They drove down Louis Botha Street to Channer Street and I met them in Windhoek Drive again in front of the golf course, and I got the opportunity to take the registration number of the vehicle. I drove off to the hiking spot to the police station in Church Street. I reported this matter there. The police circulated the vehicle and escorted me to show them where the vehicle went to with this child. I saw the vehicle and identified it at the golf course. The police then asked for the driver of the vehicle from the people on the golf course. He then came out. He was asked by the police where the boy is that was with them in the vehicle whom they were beating out. The vehicle driver then took us to the container on the premises where they locked him

up. The white male then opened the container in my and the police’s presence and took the child out crying. Constable Mqhakama escorted me to the golf course.”

[20] Constable Jama, who was called out to the scene, described in her statement the role that she had played in the incident as follows:

“On Sunday. 2014/09/28, at about 05h45 I reported on duty with parade held by Lieutenant Colonel van Zyl. I was posted with driver Sgt Marwanqana on U8 to do crime prevention duties and reported on air at 06:10. We received a complaint of a suspicious vehicle at the golf course and proceeded there. We found the suspect with the child in a container that he said got pepper sprayed, and the child said the white male driving a black Golf hid the pepper spray in my presence and said he does not have it with him when I asked him. We took the child to Uitenhage hospital, Provincial, for the child to be medically examined. Proceeded to the station and informed Detective Warrant Officer Lawrence van der Nest about the occurrence so that he can guide us. He then took it as a “petty” complaint saying that these street kids are a problem and they always give the golf people a problem with the breakings at the premises. He also said that Mr Makaleni cannot open a case on the child’s behalf, but the parent must be present when a statement is being taken from the child. So, it will be no use to continue with the case, but we can proceed if we want to because it is a street child. I asked my partner to go to hospital fearing that the warrant might have called the suspect to inform him that we took the child to hospital and maybe it’s his golf buddy. I was afraid that the suspect will go to hospital and threaten the child. I asked the child about his address which he didn’t know but was willing to show us. So for

my and the child’s sake I thought well go to the child’s house to see the parent and continue with the opening of the docket for investigation to take place. Proceeded to his house and the mother was at church. Went to church and found her. Apologized for bothering her at church and explained to her the situation at hand. We asked her to go to hospital with us and her son. So we asked the hospital to contact me when they are done to take the child’s statement on the presence of his (parent), which happened afterwards. We then took the child with his mother back home from hospital and after taking his statement in his mother’s presence at his home in Tamboville. Proceeded to the station after 17:30 for docket to be captured by nightshift member, since it was too late for dayshift to do it. That’s all I can state for now.”

[21] After apprising himself of the contents of the statements (which he added were enough on their own to persuade any reasonable person in his situation to conclude that an arrest was warranted) Captain Mdayi’s first order of business was to arrange a visit to the complainant’s house in order to verify his statement (in the presence of his parent) and to have the child take him to the scene of the crime. He was only successful on the third attempt at contacting him. He thereupon arranged to see the other child, BR, in the presence of his mother as well since he was also a minor, in order to also take his statement. This was entered into evidence as Exhibit E.[6] His next objective was to visit the crime scene with AP and a photographer from the Local Criminal Record Centre.

[22] Whilst at the golf Club together with Arnold it happened quite serendipitously that they came across the first respondent who was

pointed out by the complainant as one of his assailants.[7] Captain Mdayi explained the reason for his visit to the first respondent and requested him to unlock the container in which the child claimed to have been held during his ordeal. Photographs were taken both inside and around the container.

[23] As an aside, these photographs tell a story on their own. The container is between two garages and is ostensibly used for the storage of golf carts and other equipment. It does not appear as if there are any windows. Indeed Captain Mdayi asserted indignantly under cross examination, in response to certain criticism that he failed to take steps to find out the respondents’ side of the story for locking the child up there, that it was a place not fit for human habitation.

[24] Captain Mdayi thereupon requested the first respondent to report to his office together with “his partner,” the second respondent, who was not present at the time. He conceded under cross examination that he had reason to arrest the first respondent then and there but wanted to execute the arrest of the both of them together and take them to court at the same time.

[25] When he noticed upon his return to his office after about thirty minutes later that neither suspect had reported as requested, he went back to the golf course to look for them only to hear that they had already left to go to his office. Back at his office he found them waiting there for him. After formally introducing himself, he informed them of the nature of his investigations and that according to information at his disposal both of them had been accused of being involved in assaulting and restraining the child in the container. He arrested both of them after informing them of their constitutional

rights, the second respondent now also having been identified by the complainant. (AP attested to a further affidavit in which his pointing out at the golf Club and his identification of both respondents as his assailants was recorded. This affidavit too was entered into evidence.)

[26] He confirmed that he had been satisfied on the basis of the interviews undertaken by him and the statements obtained that the respondents (now identified) had committed offences of kidnapping and assault. He viewed the charges as serious and thus formed the view that they should be arrested.

[27] His claimed purpose in arresting them, according to him, was to ensure that they appear in court. Their detention as such was however short lived and took only as long as was needed by him to “process” the respondents. By this he meant reading them their constitutional rights, taking their finger prints and warning statement etc. These

formalities took him from 10h50 when the respondents first arrived at his office until 14h10. The respondents were booked to court after arrangements were made with the prosecutor for their immediate appearance. He also had a discussion with the respondents’

attorneys concerning bail, intimating to the latter that he would certainly not be opposing their release on such a basis and indeed

arranged matters in such a way that the respondents were released at court on bail of R200.00 each.

[28] Asked to justify why he wanted to arrest the respondents as opposed to securing their attendance at court on a different basis, he was not convinced that the respondents did not pose a threat to the complainant exactly because of what they had done to him. (As an aside one gets the distinct impression upon reading Constable Jama’s affidavit that she entertained similar fears for the child’s safety.)

[29] The charges against the respondents were ultimately withdrawn because the complainant did not show in court after having been subpoenaed to testify.

[30] Captain Mdayi was censured under cross examination for not contacting the respondents before their arrest to hear their side of the story despite having had their particulars and the time at his disposal to do so. He claimed that it would not however have made a difference knowing that their particulars and addresses were supposedly endorsed in the investigation diary, because according to his training, the starting point of the investigation was to meet with the complainant and to have him point out or identify the suspects.

[31] He was also taken to task for not consulting with Constable Jama and the officer who had assisted her on the day in question who it was suggested to him under cross examination might themselves have pointed out the suspects because they were present at the time the child was freed from the container, but again he adverted to the need to begin with the complainant as the primary source of identification. He acknowledged that he had asked neither officer why they had not themselves arrested the respondents at the crime scene. (As an aside the obvious reason why they did not arrest the respondents right then and there probably lies in what they were told by a senior ranking police officer, namely that they should disregard the incident as a “petty” complaint and that they should rather not prosecute the case because the complainant was a “street

child”, both equally startling propositions for a senior officer tasked with upholding the law to be making to a junior

officer (Constable Jama) seeking his guidance as to what to do in the circumstances. As it turned out, and to her credit, Constable Jama did not dismiss the incident out of hand as something trivial but took positive steps in the direction of formally opening a case and spent the better part of the day finding the child’s mother, going to the hospital to have him examined and consulting with the both of them before dropping him off safely at his home later on.)

[32] Captain Mdayi conceded being aware of the back story of the so-called “street kids” presenting a problem at the golf Club but clarified that he only came to learn of the respondents’ “excuse” for locking up the child after he had arrested them or while he was processing them at the charge office. He recalled having asked the first respondent if he had laid a complaint against AP with the police to which he replied in the negative. He added that both respondents had in any event declined to make a statement at the time of their arrest. According to him this aspect was however investigated after the arrest and did not vindicate the respondents in respect of their belated explanation for restraining the child.

[33] Captain Mdayi did not agree that it had been necessary to take statements from any colleagues on the issue of the theft problem at the golf Club (or the manager at the club) which he felt was also not the concern of his unit to investigate. A version was put to him regarding what the respondents would come and say when they testified (the essence of which is that they had performed a citizen’s arrest of the child that day hence their excuse for locking him up in the container), but they closed their case without adducing such testimony.

[34] Captain Mdayi was in any event satisfied, based on what Mr. Makalina had said in his statement, that AP must have been locked up in the container for a considerable period of time before Constable Jama and her colleague arrived on the scene to free him, even assuming that someone had laid a charge of theft against him with the police.

[35] He acknowledged that discrepancies existed between the statements of Mr. Makaleni and AP on the issue of what car(s) were present where he was taken from the roadside or how many men were involved but he did not consider this as impacting his decision, because the child as far as he was concerned, had stuck to his story when he had interviewed him. (In my view these discrepancies are in any event not of a material nature and had a bearing rather on the issue of identification, the certainty of which was put beyond the pale when the child was discovered in a container on the golf course where the respondents are employed and over which they ostensibly exercised control. Any doubt as to who had been involved was further also clarified by the child pointing them out ultimately to Captain Mdayi as the relevant suspects.)

[36] The chief finding of the magistrate on which the appeal rests is that the appellant failed to discharge the onus resting on him to prove that Captain Mdayi had entertained a reasonable suspicion that the respondents had committed a Schedule 1 offence, thus justifying their arrest. On the basis of this primary finding, he went on to determine that the subsequent detention of the respondents was also unlawful.[8]

[37] In this respect he was critical of Captain Mdayi who having had the benefit of time did not contact the respondents to obtain their side of the events especially in the light of the fact that “serious

discrepancies” (Sic) existed in the statements upon which he formed the opinion that he should make the arrests.[9]

[38] He was further critical of Captain Mdayi having forged ahead with their arrest and detention, despite his concession that he was aware before he arrested them of their supposed claim that they had “caught” the complainant for the theft of golf balls from the Club.

[39] He appeared to consider it significant that Captain Mdayi had overlooked that both the child and Constable Jama in their statements (on which he based his belief) had made mention of the fact that the respondents had informed the child that they were going to call the police for them (meaning the child and his friend BR), thus giving credence as it were to their case (not supported by any evidence) that the children had been up to criminal mischief on the golf course.

[40] He considered that Captain Mdayi knowing this, plus having been apprised of Detective Warrant Officer van der Nest’s observations that this was a petty complaint because the “street kids” are known to be a problem at the golf Club, raised a particular need in the circumstances for the arresting officer to have obtained an explanation from the respondents as to “their side of the events”. He concluded that his failure to have done so meant that his conduct had fallen short of the standard set out in Mabona v Minister of Law and Order,[10] hence his suspicion did not rest on reasonable grounds to justify the arrest.

[41] Ironically however he was satisfied that it could be inferred from the three statements in the docket that an offence referred to in schedule 1 of the CPA “may have been committed” and that Captain Mdayi “could have been justified in his reasoning that it was a serious offence”.

[42] It is trite principle that the question whether a peace “reasonably suspects” a person of having committed an offence within the ambit of section 40(1)(b) of the Act is objectively justifiable. The test, it has been said, is not whether a policeman believes that he has reason to suspect, but whether, on an objective approach he in fact has reasonable grounds for the suspicion.[11]

[43] In the Mabona[12] case the court considered the approach to be adopted 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 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, i.e 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.” (Emphasis added).

[44] Whilst there is an obligation on the arresting officer to be particularly meticulous about the quality of the information at his disposal which informs his suspicion and to check it where he can or should, it does not follow that he needs to be absolutely certain beyond reasonable doubt that the suspect will be convicted, neither in my view does he have to consider every defence, excuse or alibi with the same high standard that a court will apply in determining whether the suspect ultimately falls to be convicted or acquitted. This much is evident in the following qualification expressed in the Mabona case:

“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.”

[45] Applying the objective test enunciated in Duncan v Minister of Law and Order, as endorsed in the Mabona case as set out above, it is hard to see on what basis Captain Mdayi was supposed to go the extra mile and indulge the respondents in the faint suggestion (indicated in the statements) that AP may have made himself guilty of misbehavior. The elaborate version that came forth during the cross examination of Captain Mdayi of how the respondents had performed a citizen’s arrest of him and summonsed the police (supposedly to arrest him in the container) was nowhere articulated in the three primary statements (forming the basis for Captain Mdayi’s suspicion) with such precision. Captain Mdayi when he testified said that the allegation against AP had come up casually at the time of arresting the respondents. Further, whatever supposed defence might have been on their minds at that point, the respondents chose not to make a statement.

[46] Captain Mdayi was not averse to investigating exculpatory statements. As he confirmed under cross examination “their story matters”, except he testified that his attention was not drawn to any excuse offered by the respondents until at the last minute and then the first respondent could not confirm that they had laid a complaint with the police. Indeed, he added that even if it were true that the child had been up to no good, the respondents’ recourse would have been to take him to the police station and not to lock him up in a container. As for the suggestion that he somehow had a duty to pick

up a cue from the three primary statements that AP and BR had committed the theft of golf balls from the golf club, I am inclined

to accept as reasonable his rhetorical question as to how he was supposed to investigate a claim of theft that was not reported or which he had not heard of before.

[47] Captain Mdayi investigated a more critical issue that required confirmation in his view, which is the identification of the assailants who had not been named in the three statements at his disposal when he took over the docket. Objectively this was the aspect in the primary statements that required explanation and further questioning. As it turned out, it just so happened that the first respondent was present at the crime scene when he arrived with AP to point out the container where he had been held and that this concern could thus be laid to rest.

[48] By AP’s mother’s endorsement of the investigation (as had happened in her earlier interaction with Constable Jama) it can also safely be inferred that the fact of the child having been held in the container could not have met with her approval.[13] Captain Mdayi’s visit to the child’s home would also have dispelled any notion that he was to be automatically included in the unfortunate category of troublesome “street child”.

[49] As the trial court found, it was otherwise a reasonable inference to be drawn from the three primary affidavits (as they were without any elaboration) that a Schedule 1 offence (of kidnapping) had probably been committed. This notwithstanding, Captain Mdayi had additionally taken the trouble to understand the manner in which the child had been deprived of his freedom of movement by being locked in the container by a demonstration from the child himself. A reasonable man observing the set up at the crime scene would no doubt have appreciated that to be locked up in such a place (which had been sprayed with teargas to boot) would have been properly tantamount to a deprivation of the child’s freedom of movement and was probably intentional.

[50] A reasonable person would also in my view have been hard pressed to accept in all the circumstances (even assuming that AP had been up to no good and that his arrest for the theft of golf balls from the Club was warranted) that there would be any justification at all for assaulting and holding a thirteen-year-old child in a container which, as can be observed from the photographs taken at the crime scene, is self-evidently not fit for human habitation (as Captain Mdayi felt constrained to describe it under cross examination). A reasonable person would also have reckoned the gravity of confining a child (even temporarily) in a remote container (obviously intended to be used as a garage) in respect of which there is ostensibly no light nor ventilation.

[51] The “culpable remissness” attributed by the respondents’ counsel to Captain Mdayi in failing to investigate the supposed justifiable reason for assaulting and locking the child up in the container because he was regarded as an obvious troublemaker does not in my view arise. It was enough to contend with that the child had been locked up at all in the container of all places. Even if he were a street kid, that was all the more reason for Captain Mdayi to be concerned for his welfare.[14]

[52] In the result there was simply no unsubstantiated suspicion that Captain Mdayi was required to corroborate or to let dissipate. Further, even considering what he conceded had been told to him by the first respondent when he was busy arresting him at the charge office, this could not objectively have altered the premise for his suspicion that the pair had committed a Schedule 1 offence that they were answerable for in court. Indeed, the view formed by him that he had “a concrete case” is hard to dismiss.

[53] I am satisfied that the trial court accordingly erred in concluding on the relevant facts and legal principles that Captain Mdayi’s conduct in arresting the respondents fell short of the standard articulated in the Mabona case.

[54] But the matter does not end there. Once the required jurisdictional facts are present the discretion whether or not to arrest arises.[15] Although section 40 (1) (b) of the CPA gives peace officers extraordinary powers of arrest and such powers necessarily avail in the fight against crime, it must be sensitively counterbalanced against the arrested person’s constitutional rights of personal liberty and dignity. A court will therefore carefully scrutinize in each case whether the infringement of these rights is legally in order.[16]

[55] The purpose of an arrest is to bring a suspect before court. If the arrest is effected for a purpose other than this, or for another purpose which does not fall within the jurisdictional framework of section 40, the arrest will be unlawful for that reason alone.

[56] In this instance there is no reason not to accept Captain Mdayi’s evidence that his sole purpose in arresting the respondents was to bring them to court. This he did promptly and in a manner occasioning as little inconvenience to them as possible. This is entirely consistent with his express objective for carrying out the arrest and the considerate manner in which he dealt with the respondents.

[57] In a rationality enquiry, the critical enquiry, as suggested by the Supreme Court of Appeal in Sekhoto, should not be focused on the manner of the arrest but rather the rationale for the arrest. The court made this clear when it remarked upon the relevant enquiry to be made by the peace officer as follows:

“It seems to me to follow that the enquiry to be made by the peace officer is not how best to bring the suspect to trial: the enquiry is only whether the case is one in which that decision (that is whether the suspect ought to be detained pending a trial) ought properly to be made by a court (or the senior officer). Whether his decision on that question is rational naturally depends upon the particular facts but it is clear that in cases of serious crime – and those listed in Schedule 1 are serious, not only because the Legislature thought so – a peace officer could seldom be criticized for arresting a suspect for that purpose.”[17]

[58] As in Sekhoto, the opinion was formed in the present matter concerning a serious offence of kidnapping and one in respect of which the legislature has deemed it proportional to arrest without a warrant. Therefore, the mere nature of the offence justified the arrests of the respondents for purposes of bringing them to justice and rendered them objectively justifiable.[18]

[59] Captain Mdayi confirmed that he had reflected on the option of bringing the respondents to court by way of a summons but noted that he would still have required their presence at the charge office in order to take their fingerprints and warning statements and to process them in the police registers. Whilst this may suggest that convenience tipped the scales for him, this was merely an after-the-fact observation made under cross examination. He was however unequivocal that the serious offence of kidnapping warranted them being arrested although he sought in the best way possible to ameliorate the harsh effect thereof by ensuring their earliest appearance that very Friday afternoon and by pre-arranging their release on bail by the court in conjunction with the prosecutor and their attorney.

[60] That brings me to the pleaded basis for the claimed unlawful issue of the exercise of Captain Mdayi’s discretion. If it is alleged that the arresting officer’s discretion to arrest was improperly formed, it is for the arrestee to prove it.[19] Although the respondents did not testify, it is so that a number of concessions were made by Captain Mdayi which in effect amount to a capitulation of the pleaded basis referred to in paragraph 5.4.1 to 5.4.4 at least of the respondents’ particulars of claim. But even taking these factors into account in favour of the respondents, it does not follow that Captain Mdayi was obliged to adopt a milder or less invasive means of bringing the respondents to court than he did. In fact, he confirmed that he weighed up the options and concluded that his choice of “processing” them and taking them to court was the “eas(ier) route”, rather “than the one of having to lock them up.” Although at first glance this appears to mean that he did not foresee that they would conceivably be detained by following this course, he was simply suggesting in my view that his control over the process on a Friday afternoon, by arranging the hastened appearance and bail in advance, presupposed that any interference with their freedom (if this were necessary) would be minimal.

[61] In reply to a question why he could not simply have settled for the alternative of bringing the respondents to court by way of summons if he intended releasing them on bail in any event, he adverted to the issue of the safety of the child and the fact that the harsher form of arrest would also have the necessary deterrent effect. This was simply another way of saying that the serious nature of the offence warranted the arrests and that he intended by the formal consequences thereof to bring the respondents to justice.

[62] I am satisfied on an objective overview of all the evidence that Captain Mdayi exercised his discretion in good faith, rationally and not arbitrarily. As was affirmed by the Supreme Court of Appeal in Sekhoto:

“...(P)eace 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 and so long as the discretion is exercised within this range, the standard is not breached.”[20]

[63] The final issue concerns the supposed unlawful detention. The basis pleaded by the respondents in paragraph 7.1 of the particulars of claim poses no issue since legal justification existed for the arrest. The question of a written notice in terms of section 56 of the CPA does not arise.[21] The question of bail (given the nature of the charge of kidnapping) would also have meant that it was not up to Captain Mdayi to consider the respondents’ release from the police station. He was however not going to stand in the way of the respondents’ release on bail by the court. He was happy to facilitate such a process alternatively to promote in court that the interests of justice permitted their release on such a basis, suggesting that bail be set in the sum of R200.00 each. This he suggested exactly because he knew that the respondents were employed and not a flight risk.

[64] The remaining allegation is that the respondents’ detention was unreasonably long. I cannot agree. Captain Mdayi pushed firmly for an appearance on the Friday already, and was mindful that if he left it later that the respondents may well have had to remain in custody on the weekend until the ensuing Monday morning before a magistrate could consider their release on bail. The alternative meant that they (in his own words) would be “punished” until the Monday.

[65] I find no reason to question Captain Mdayi’s assurance that he did what he needed to do, as quickly as he possibly could to minimize the period of the respondents’ detention which was inevitable and a consequence of the serious charge of kidnapping.

[66] In the result the appeal succeeds, and the magistrate’s order must be substituted by an order that the respondents’ claims are dismissed. The thought occurs to me that it would be inequitable in ordering that the costs should follow that result that they should not include the special costs (where applicable) that the respondents had held out for and were granted by the magistrate in the action.

[67] In the premises I issue the following order:

1. The appeal is upheld, with costs.

2. The magistrate’s order is substituted as follows:

“1. The plaintiff’s action is dismissed with costs, such costs to include:

1.1 costs of counsel in respect of the perusal of the brief contents, and a higher fee for attending to consultations with witnesses as well as counsel’s day fee at a rate subject to the discretion of the taxing mistress, but not exceeding twice the prescribed rate of the relevant magistrate’s court tariff, as well as travelling costs and disbursements;

1.2 the costs necessitated by the preparation of the Heads of Argument agreed to be filed by the parties, at a rate prescribed by the Port Elizabeth Society of Advocates; and

1.3 Costs of the interpreter.

2. Interest on costs will be payable at the rate of 10% per annum, calculated from a date 14 days after taxation or agreement to date of payment.”

_________________________________

B HARTLE

JUDGE OF THE HIGH COURT

I agree,

Z GXARISA

ACTING JUDGE OF THE HIGH COURT

DATE OF HEARING:

6 November 2020

DATE OF JUDGMENT:

22 February 2021*

*Judgment delivered electronically on this date by email to the parties.

APPEARANCES:

For the applicant: Mr. Ncalo instructed by Mgangatho Attorneys, Grahamstown (ref. Mr. Mgangatho).

For the respondent: Mr. J D Le Roux instructed by Neville Borman & Botha Attorneys, Grahamstown (ref. Mr. Powers).

[1] The respondents had originally pleaded that they were arrested at the Uitenhage Golf Club where they were employed, but it appeared to be accepted ultimately that the moment of arrest coincided with their visit to the police station following the arresting officer’s request (communicated to the first respondent earlier at the Club) for them to come and see him at his offices for purposes of investigating the matter. The effect of this concession is that the period of detention in contention was shortened by two hours calculated from the time of their arrival at the arresting officer’s offices at approximately 11h50 (when they were officially arrested) until they

were taken to court at 14h10 after which they were released by the court on bail.

[2] Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H; Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) at par [6].

[3] Assault common is not a schedule 1 offence, but “assault, when a dangerous wound is inflicted” is. The parties and the magistrate appear to have mistakenly assumed that this offence also brought the matter under the purview of Schedule 1. Nothing turns on this though since the suspicion held that the primary offence of kidnapping had been committed was sufficient to elevate the matter to an egregious one justifying the arrests without any warrant.

[4] This section provides that 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. This provision deals of course with only the general legal consequences of an arrest. In Jacobs v Minister of Safety and Security (CA 327/2012) [2013] ZAECGHC 95 (23 September 2013) at par [41] the court observed that provided (the police) are able to establish that the initial arrest was lawful, that it should follow, ex lege, that the ensuing detention was also lawful, that is until it becomes unlawful for some other reason. Where the plaintiff wishes to rely on extraneous circumstances, outside of the arrest itself, for the contention that the detention became unlawful at some subsequent stage it is however incumbent upon him/her to plead this.

[5] Although this aspect of the respondents’ pleaded case did not feature in the judgment under appeal it is worth observing that it would not have been open to the South African Police Service to release the respondents on this basis given the serious nature of the charge of kidnapping at least. Written notice is used for relatively minor offences where a peace officer is of the view that the court will not impose a fine greater than R5 000.00 (GN R62 in GG 36111 of 30 January 2013.) An accused is given the opportunity, by such a notice, before and instead of appearing in court, to admit his/her guilt and pay a fine. This was however not the situation that pertained in the present matter. It appeared to have been accepted by all concerned that kidnapping is regarded as a serious offence.

[6] The focus in this child’s statement was on the arrival of the black Golf whilst he was in the company of AP on the roadside, at which point he ran away. He could (for this obvious reason) not say what had happened to AP in his absence. He claimed that he saw him later the same day in the company of the police when they were returning AP to his home. He observed that his friend’s face was slightly swollen. AP informed him that after he (BR) had run away, he had been “caught” and was assaulted. He also related to his own experience of having been pepper sprayed and locked in a container at the golf Club before.

[7] The witness stated that it was only “through (his) luck” that they had encountered the first respondent there.

[8] The issue of the improper exercise of the arresting officer’s discretion was not dealt with by the court, the magistrate

suggesting that this had been raised only in the alternative in the pleadings. This is a misconception although I suppose he meant to say that it was unnecessary to go further once he had determined that Captain Mdayi’s suspicion was unreasonably held.

[9] These discrepancies are nothing but a red herring as far as I am concerned.

[10] (1988) 3 All SA 408 (SE).

[11] Duncan Supra at page 184 D – E and the authorities referred to therein.

[12] Supra at 658 E - H

[13] The crime of kidnapping consists in unlawfully and intentionally depriving a person of his/her freedom of movement and/or if such a person is a child, the custodians of their control over the child (Criminal Law, Snyman, 5th Ed, at 479).

[14] This concern was clearly appreciated by Constable Jama, again to her credit.

[15] Sekhoto, Supra, at para [25].

[16] Minister of Law and Order v Dempsey 1988 (3) SA 19 (A) at 38 C.

[17] Sekhoto Supra at para [44].

[18] As was stated in Sekhoto, Supra, at para [25] it could hardly be suggested that an arrest under the circumstances set out in section 40 (1) (b) could amount to a deprivation of freedom which is arbitrary or without just cause in conflict with the Bill of Rights. See also par [36].

[19] Sekhoto, Supra, at para [47].

[20] Supra, at par [39].

[21] See footnote 5 above.