Minister of Police v Hattingh (CA305/2019) [2020] ZAECGHC 79 (24 July 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: CA305/2019

Matter heard on: 15/05/2020

Judgment delivered on: 24/07/2020

In the matter between:

MINISTER OF POLICE

APPELLANT

and

J H HATTINGH

RESPONDENT

JUDGMENT

SMITH J:

[1] This is an appeal against the judgment of the East London Magistrate’s Court, awarding the respondent damages in the sum of R50 000 for unlawful arrest and detention.

[2] In his particulars of claim the respondent averred that he was unlawfully arrested by a member of the South African Police Services on 11 October 2012, and thereafter detained at the Fleet Street Police Station for about two hours.

[3] While admitting the arrest and detention, the appellant pleaded that the arrest was lawful, having been executed in terms of section 40 (1) (a) of the Criminal Procedure Act, No. 51 of 1977 (“the Act”). That section empowers a peace officer to arrest (without a warrant) the perpetrator of a crime committed or attempted in his or her presence. The appellant relied in the alternative on the provisions of section 40 (1) (b) of the Act, which empower a police officer to arrest a person without a warrant if he or she has reasonable grounds to believe that the person has committed a Schedule 1 offence.

[4] The appeal is based mainly on the ground that the magistrate erred in finding that the appellant failed to establish that the arresting officer effected a lawful arrest, namely that the respondent had committed the crime of reckless and negligent driving in the presence of the former. In this regard the appellant relies, in particular, on the magistrate’s comment to the effect that the appellant was required to establish that there had been an accident involving another person or vehicle in order to justify the arrest.

[5] The appellant also contends that the sum of damages awarded by the magistrate is unreasonably exorbitant, having regard to the circumstances of the arrest and the relatively short duration of the detention.

[6] The appellant also applied for condonation for his failure to note the appeal and file heads of argument within the time limits prescribed by the Uniform Rules of Court. It is common cause that he failed to comply with one or more of the time limits prescribed by Rule 51 of the Magistrate’s Court Rules, read with Rule 50 of the Uniform Rules of Court. In the affidavits filed in support of the application for condonation, the appellant has proffered an explanation which fails to account for a delay of almost one year. He has accordingly failed to provide a reasonable explanation for the delay. However, in order to decide whether or not the appellant has shown good cause for condonation, we are nevertheless required to consider the merits of the appeal.

[7] The appellant, having accepted that he bore the onus of proving the lawfulness of the arrest, called the arresting officer, one Constable Akhona Nkutu, as well as the person who had allegedly assisted her in stopping the respondent’s vehicle, namely one Mawonga Mdazane. The respondent and his fourteen year old son, who accompanied him on the day in question, also testified.

[8] Nkutu testified that at about 17h00 on 11 October 2012, she was driving a police vehicle in Fleet Street, East London, travelling in the outside lane (which she referred to as a fast lane) when she noticed the respondent’s vehicle in the rear view mirror. At the time she had stopped behind a taxi to allow it to offload passengers. A number of pedestrians were also crossing the road.

[9] The respondent’s vehicle, a Toyota Tazz, nearly collided with hers and overtook in the face of oncoming traffic. Being of the view that the respondent was driving in a reckless manner and endangering the lives of other motorists and pedestrians, she pursued his vehicle. She activated her police siren and, using a loud-hailer, called on him to stop. The respondent, however, refused to stop and simply drove off, in the process driving through red traffic lights.

[10] He was eventually forced to stop his vehicle when other drivers had blocked his way. In the meanwhile Nkutu had called for back-up. She then approached the appellant, introduced herself, and asked for his driver’s licence. The respondent was rude, swore at her and made a rude gesture by showing her “the middle finger”. He was also uncooperative and she noticed that his eyes were bloodshot. This observation, coupled with the reckless manner in which he had driven, caused her to believe that he was under the influence of liquor. She consequently summoned a traffic officer to administer a breathalyser test. The test, however, turned out negative.

[11] She then arrested the respondent and explained his constitutional rights to him. The respondent was accompanied by his fourteen year old son.

[12] She thereafter took the respondent to the Fleet Street Police Station where she charged him with obstructing a police officer in the execution of her duties. Although she was of the view that he should have been charged with reckless and negligent driving, a senior colleague convinced her instead to charge him with the former offence. The respondent was not placed in a cell, but instead in an interview room where he was kept until he was released on bail.

[13] Mdazane could not really add anything of value to the appellant’s case. He had no recollection of the events, and the little that he was able to proffer was only as a result of considerable prodding by the appellant’s legal representative and the magistrate.

[14] The respondent gave an entirely different version of the events. He testified that he was driving down Buffalo Road on his way to church with his fourteen year old son when he noticed a police vehicle stopping on the right hand side of the road. He passed the vehicle on the left hand side. A few minutes later he heard a police siren and assumed that they were signalling for him to get out of the way. He attempted to stop alongside the road but could not do so since the road was very busy and he could not find a safe place to stop. The police vehicle eventually pulled up alongside him. Constable Nkutu was driving and a coloured male officer was riding shotgun. The male officer had a radio and carried a firearm which he pointed at the respondent. They instructed him to pull over. Nkutu was very rude and accused him of being under the influence of liquor. She also told him that the country does not belong to “you people” any longer (referring to him) and that it is now ”our turn”. She eventually summoned a traffic officer to administer a breathalyser test which turned out negative. She thereafter arrested him and took him to the Fleet Street Police Station where he was charged with obstructing a police officer in the execution of her duties. His son had to walk to the church which was about four kilometres from the police station. He was released about two hours later after his attorney had intervened on his behalf. His son, A[…] H[…], also testified and corroborated his version in all material respects.

[15] In his judgment the magistrate first considered whether the appellant had established all the jurisdictional facts to justify the arrest in terms of section 40(1)(b) of the Act. He concluded that on the evidence before him there was “no ground to form a reasonable suspicion to justify the arrest of the plaintiff for the alleged commission of the Schedule 1 offence, as was pleaded by the defendant in the alternative”.

[16] Regarding the application of section 40(1) (a) of the Act, he appeared to have reasoned that whatever had occurred after Nkutu had decided to pursue and arrest the respondent, was irrelevant. He correctly reasoned that Nkutu’s view that the respondent had committed an offence in her presence was based on the assertion that he almost collided with her vehicle and that he had overtaken her vehicle in the face of oncoming traffic.

[17] The magistrate’s comment which formed the basis for the appellant’s contention that he had misdirected himself was the following:

“It is difficult to find objectively, how Constable Nkutu concluded that the plaintiff was reckless or negligent in the way he was driving. There was no accident involving another vehicle or person. There is no evidence that shows that if it had not been for the action of another driver person a collision would have taken place. The lack of any objective evidence that points to the alleged reckless or negligent driving was probably the reason why the mentor considered a charge of reckless driving as unfounded and insisted that it be changed to the lesser contravention. “

[18] Mr Wolmarans, who appeared for the appellant, argued that the magistrate’s reasoning was focused on the alternative defence and that he failed to give adequate consideration to the question as to whether the evidence established the jurisdictional facts required for a lawful arrest under section 40(1)(a) of the Act, which was the appellant’s main defence.

[19] While it is so that the magistrate’s reasoning could have been articulated in a clearer manner, I am not convinced that he misdirected himself. In analysing the evidence, he appeared to have been cognisant of the legal principles which apply to an evaluation of conflicting versions enunciated in National Employees General Insurance v Jagers 1984 (4) 432 (ECD), at page 440. They are:

(a) where there are mutually destructive versions, the plaintiff can only succeed if it establishes, on a preponderance of probabilities, that its version is true and that advanced by the defendant is false;

(b) the court will weigh up the probabilities, having regard to the credibility of the witnesses and the probabilities of the case. If the balance of probabilities favour a particular party, then the court will accept its version as being true; and

(c) if the probabilities are evenly balance, however, the plaintiff can only succeed if the court is nevertheless satisfied that its version is true and of that of the defendant is false.

[20] Nkutu was unable to explain why her senior colleague was of the opinion that the respondent should not be charged with reckless and negligent driving but instead with obstructing a police officer in the execution of her duties. Her version was that he was part of the back-up team and that she had given him a report of the incident immediately upon his arrival at the scene. It must logically follow that whatever she had told him about the occurrences did not convince him that the respondent’s actions constituted reckless and negligent driving, hence his instruction that he should instead be charged with obstructing a police officer in the discharge of his or her duties. Not only is the former offence not a competent verdict of reckless and negligent driving, but the elements thereof are also fundamentally different.

[21] The senior officer’s instruction that the respondent should be charged with obstructing a police officer in the execution of her duties instead of reckless and negligent driving, could only have been based on a consideration of the respondent’s conduct after he was forced to stop his vehicle and had been apprehended. However, whatever he had done to justify such a charge after his apprehension was irrelevant since that was not the reason for his arrest. I am accordingly of the view that Nkutu’s testimony in this regard was fundamentally improbable and contrived.

[22] The other aspect in respect of which there was conflicting versions, relates to the issue of whether or not Nkutu was accompanied by a male officer. Her testimony in this regard was bizarre, to say the least. She gave a very crude and insensitive description of her colleague’s anatomy in order to emphasise her point that the former’s sex must have been obvious to any observer. This was clearly a contrived attempt to gainsay the respondent’s assertion that her male colleague had pointed a firearm at him.

[23] In contrast, the respondent’s evidence was coherent, consistent and reliable. He was also corroborated in all material respects by his son. I am accordingly of the view that in evaluating and assessing the evidence, the magistrate did not misdirect himself, either in respect of his factual findings or the applicable legal principles. There are accordingly no grounds on which this court can interfere with his ruling.

[24] It is trite that in awarding damages, the trial court exercises a discretion. A court of appeal will only interfere if the trial court has misdirected itself, or the award is so exorbitant or inadequate that it compels the inference that the trial court did not exercise the discretion properly. I am of the view that none of these grounds is present in this matter. In deciding on the amount of damages, the magistrate had due regard to the fact that the appellant had been arrested in full view of the public, in a busy thoroughfare in the centre of a city, and in the presence of his son. I am accordingly not persuaded that the damages are so exorbitant so as to justify the inference that the magistrate has not exercised his discretion properly. In the result there is also no basis on which we can interfere with the damages.

[25] In the result the appeal is dismissed, with costs.

__________________________

J.E SMITH

JUDGE OF THE HIGH COURT

I agree.

_______________________

N.P. JAJI

Counsel for appellant: Mr

M. Wolmarans

Attorneys for appellant: State Attorney

c/o Mili Attorneys

110 High Street

Grahamstown

Counsel for respondent: Adv. Maseti

Attorneys for respondent: S.N. Jiba Attorneys

c/o Mgangatho Attorneys

3 High Street