Minister of Police v Matroos (CA389/2016) [2018] ZAECGHC 124 (12 October 2018)

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: CA389/2016

DATE HEARD: 12/10/2018

DATE DELIVERED:

In the matter between:

MINISTER OF POLICE Appellant

and

SAMATHA DELENE MATROOS

Respondent

JUDGMENT

NOTSHE AJ

INTRODUCTION

[1] This is an appeal against the judgment and order of the magistrate of Port Elizabeth wherein she granted judgment in favour of the respondent and ordered the appellant to pay an amount of R70 000,00 as and for damages.

[2] The respondent’s claim arose from an arrest without a warrant at her home, at [….], Port Elizabeth on 10 September 2012, by a member of the South African Police Service.

[3] The respondent was thereafter detained at Gelvandale Police station and taken to court on 11 September 2012.

[4] She instituted action proceedings against the appellant, the Minister of Police, for damages on the basis that her arrest and detention were unlawful. The appellant pleaded that the arrest of the respondent “… was lawful and justified in law in terms of section 40(1)(a) alternatively section 40(1)(h) of the Criminal Procedure Act 51 of 1977 as amended, as read with section 205 of the Constitution of the Republic of South Africa as amended.” He further pleaded that the respondent was arrested for being in possession of dagga.

[5] Section 40(1)(a) of the CPA authorises a peace offer to arrest any person who commits or attempts to commit any offence in his presence. On the other hand section 40(1)(h) authorises the arrest of 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 or the possession or disposal of arms or ammunition.”

[6] The appeal before us hinges on whether the arresting officer held a reasonable suspicion, when he arrested the respondent that the latter was committing or had committed an offence under any law governing the possession of dependence-producing drugs.

THE FACTS

[7] On 10 September 2012 at about 12h50, members of the South African Police Services, Constables Matill and Beck were on a crime prevention patrol when they received information that a female person by the name Tanya was selling drugs at [….], Port Elizabeth.

[8] They went to the house and were met by Tanya. She denied that there were illegal activities at the house. When they entered the house they found the respondent but she also denied that there were illegal activities in the house.

[9] They proceed to search the house and found and found dagga in a nappy bag in the bedroom.

[10] The respondent stays in the house with Tanya.

[11] There is a dispute regarding what was said by Tanya after the police found dagga. The respondent’s evidence is that Tanya told the police that it was her dagga. The police deny that they were told that it was Tanya’s dagga.

[12] The police arrested both occupants of the house, namely, the respondent and Tanya. The arresting officer, Constable Matill suspected them of committing or of having committed an offence under a law governing the possession of dependence-producing, dagga.

[13] As stated above the single issue to be decided is whether the arresting officer, Constable Matill’s suspicion was reasonable.

ANALYSIS

[14] The appellant’s justification of the arrest is that it was lawful because of the provisions of section 40(1)(h) of the CPA. He seems to have abandoned the reliance upon section 40(1)(a). Section 40(1)(h) authorises an arrest of a person suspected of committing or of having committed an offence under any law governing, inter alia, the possession of dependence-producing drugs or the possession or disposal of arms or ammunition.

[15] The magistrate held that in order for the appellant to succeed in his defence he had to show that the arresting officer reasonably suspected that plaintiff was the owner of the dagga. She concluded that appellant failed in this regard.

[16] In Duncan v Minister of Law and Order[1], it was held the jurisdictional facts for a s 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.[2] For purposes of para (h), the suspicion must be that the arrestee was committing or had committed an offence under any law governing, inter alia, the possession of dependence-producing drugs or the possession or disposal of arms or ammunition.

[17] 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.[3]

[18] The jurisdictional fact for an arrest without warrant in terms of these provisions remains a suspicion. In Mabona & others v Minister of Law and Order & other,[4] 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.’[5]

[19] In this case the police received information that drugs were sold at a house that was subsequently found to be occupied by the respondent and Tanya. Dagga was found at that house.

[20] I am of the view that on those facts the suspicion that the respondent was committing or committed an offence under a law governing the possession of dependence-producing drugs was reasonable. Even if Tanya had told the arresting officer that the dagga belonged to her it would not have changed the reasonableness of the suspicion.

[21] It was argued on behalf of the respondent that the information that the police had to the effect that dagga was being sold at the house and that Tanya admitted that the dagga was hers made the suspicion unreasonable. I disagree. It must be remembered that what is required is suspicion and not certainty. The arresting officer cannot be expected to analyse the information as if he is considering to convict an arrestee.

[22] Furthermore the facts of this case differ from the facts in the matter of Majaca v The Minister of Safety and Security[6]. In that case the plaintiff was merely a passenger in a public transport. It could not reasonably be suspected that he was in possession of the dagga that was found in the public transport in which he was a passenger. In this case dagga was found at a house

that was occupied by the respondent and Tanya

CONCLUSION

[23] In the circumstances the magistrate ought to have found that it had been established that the arresting officer was authorised to arrest the respondent and the arrest was not unlawful.

[24] In the result, the appeal should succeed and the following order be made:

(a) The appeal is upheld with costs.

(b) The order of the court below is set aside and replaced with the following order.

“The plaintiff’s claim is dismissed with costs.”

V S Notshe

Acting Judge of the High Court

I agree. It is so ordered.

M Lowe

Judge of the High Court

APPEARANCES

For the appellant:

G Wolmarans

Instructed by

Maseko Tilana Inc

Grahamstown

For the respondent:

J W Wessels

Dold and Stone Inc

[1] 1986 (2) SA 805 (A).

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

[2] At 818H-I.

See also: Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA).

[3] Duncan’ v Minister of Law and Order, supra at 818H; See also: Minister of Law and Order & others v Hurley & another 1986 (3) SA 568 (A) at 578B-D.

[3] Duncan’ v Minister of Law and Order, supra at 818H;

See also: Minister of Law and Order & others v Hurley & another 1986 (3) SA 568 (A) at 578B-D.

[4] 1988 (2) SA 654 (SE).

[5] At 658E-H.

[6] Case No.: 1721/2011 delivered on 21 November 2012.