Minister of Police v Swarts (CA299/2015) [2016] ZAECGHC 75 (8 September 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: CA299/2015

DATE: 8 SEPTEMBER 2016

In the matter between:

THE MINISTER OF POLICE................................................................................................Appellant

And

BERNIE SWARTS.................................................................................................................Respondent

JUDGMENT

BESHE J:

[1] Respondent’s claim for wrongful arrest and detention was upheld in the Kirkwood Magistrates Court when an award of R30 000.00 was made as and for damages in this regard, against the appellant. The appellant is appealing against the whole of the abovementioned

judgment.

[2] No papers have been filed in opposition of the appeal.

[3] The following facts appear to be common cause:

On the 17 June 2012, and at Kirkwood, the respondent was arrested by a police official, Warrant Officer Steven Roy Johnson (Johnson) without a warrant of arrest. The arrest was in connection with a charge of use of a motor vehicle without the owner’s consent.

It also appears to be common cause that respondent was detained for approximately one (1) hour to an hour and a half.

[4] The events that led to the arrest are, briefly stated the following:

On the day in question at about 05h30 in the morning, Johnson was instructed to attend to the respondent who he found at the Community Service Centre. He was required to visit an accident scene

with him. This he did. On arrival at the accident scene, he observed a delivery vehicle branded with “Build it hardware”

signage that was extensively damaged. After interviewing the respondent about how the motor vehicle got to be damaged, he wanted

to know whether arrangements had been made to move the damaged vehicle. He was concerned that the vehicle could not be left there

unattended. It emerged that the vehicle did not belong to the respondent. Johnson got hold of the owner of Build it hardware store, Mr Scholtz, who later arrived at the scene. On his arrival, Scholtz informed Johnson that respondent was using the vehicle in question without his consent and that he intended laying a charge against him. It was at that stage and on the basis of that report that Johnson advised respondent he was placing him under arrest for using a motor vehicle without the owner’s consent. It is common cause that respondent was employed at Build it Hardware store at the time.

[5] Explaining what motivated him to arrest the respondent, Johnson had this to say in his evidence in answer to the question whether he believed respondent intended to steal the vehicle in question, “I take it yes that there was sort of an intention to steal the vehicle because he did not have permission to use the vehicle so it falls under theft and that is why I made the informative decision that the use of the vehicle without the owner’s permission also falls under Schedule 1 and so yes, I had reasonable grounds to arrest without a warrant here”.

[6] It transpired that one Warrant Officer Moss who heads the detective unit suggested that respondent be released from custody and that he be issued with a notice to appear in court on the following day – a Monday. Warrant Officer Moss opined that because respondent had a fixed address he was not a flight risk. Following that recommendation, respondent was released.

Johnson denied that when he arrested the respondent he was carrying out the instruction of the owner of Build it store.

[7] In the particulars of claim, it was contended that no offence was committed in the presence on Johnson who effected the arrest. Further that the offence in question is not a Schedule 1 offence – and that this makes Johnson’s conduct or the arrest unlawful. Further that Johnson arrested the respondent without a reasonable and probable cause for doing so.

[8] In response appellant pleaded that the conduct of its member or members was lawful and justified in law in terms of Section 40 (1) (b) of the Criminal Procedure Act, 51 of 1977. (The Act).

[9] Sections 40 of the Act deals with circumstances under which a peace officer is permitted to arrest a person without a warrant. Sub-section 1 (a) provides for the arrest of a person who commits or attempts to commit any offence in the presence of a peace officer. That is not contended for by the appellant in casu. Namely, that the respondent committed or attempted to commit an offence in the presence of Warrant Officer Johnson.

[10] Sub-section 1 (b) purportedly finds application in this matter. It provides for the arrest of any person whom the peace officer reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody, without a warrant.

[11] One of the offences listed under Schedule 1 is theft, whether under the common law or a statutory provision. Also listed therein is “any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately

hereinunder, the punishment wherefore may be a period of imprisonment exceeding six months without the option of a fine”.

[12] In his judgment upholding respondent’s claim, the learned Magistrate correctly identified the crisp issue for determination as being whether Johnson acted within the confines of Section 40 (1) (b) of the Act. In which case if he did, the arrest of the respondent would not have been unlawful.

[13] The Magistrate did not find merit in the appellant’s contention that the unlawful use of a motor vehicle without the owner’s consent was a form of theft and therefore covered by Section 40 (1) (b) of the Act.

[14] The Magistrate found that no reliance could be placed on Section 40 (1) (b) because the offence in respect of which respondent was arrested and charged was a contravention of Section 2 of the National Road Traffic Act 93 of 1996, an offence that has nothing to do with theft.

[15] The decision of the trial court is assailed on the basis, inter alia that:

The Magistrate erred in finding that no reliance could be placed on Section 40 (1) (b) of the Act. That he erred in failing to find that there was a just cause for arrest of the respondent, who testified that he pleaded

guilty to driving the vehicle without the owner’s consent and was duly convicted and sentenced.

[16] In Johnson’s statement about the arrest, there was no suggestion that he harboured under the impression that the respondent had committed a Schedule 1 offence or theft. The relevant part of his statement reads:

“Mr Scholtz (owner of the motor vehicle) insisted that I arrest Mr Swarts. I then arrested Mr Bennie Swarts for using the owner’s

vehicle without his permission and detained him at Kirkwood South African Police Services on CAS 16/06/2012, SAP 14/8/06/2012.”

Appellant pleaded that respondent was arrested on a charge of use of motor vehicle without owner’s consent (Paragraph 3 of defendant’s plea). In paragraph 4.1 it is pleaded that the docket that was opened against the plaintiff was on a charge of use of a motor vehicle without owner’s consent. Then at paragraph 5.2 of the plea, it is stated that “defendant avers that use of motor vehicle without owner’s consent is a form of theft, and theft is a Schedule 1 offence … …”.

[17] It is clear from the nature of offences listed under Schedule 1 that an arrest without a warrant is permissible only in respect of very serious offences. There is, in my view, a very good reason why it is so. The reason is not difficult to comprehend; the liberty of an individual should not be curtailed at the slightest excuse or flighty suspicion. This, in my view is in keeping with the Constitution which entrenches the right to freedom and security of the person.[1]

[18] Theft comprises inter alia, of an intention to permanently deprive the person entitled to the possession of the property or item concerned, of such property or item. C. R. Snyman in the publication entitled: Criminal Law 5th Edition,[2] list four instances of what he categorizes as different forms of theft. Those being:

(i) The removal of property with the intention to permanently deprive the owner thereof.

(ii) Embezzlement which happens when the X was already in possession or control of the property.

(iii) Arrogation of possession, when X takes his own property from the possession of Y who has a right to its possession which prevails

against the owner (X).

(iv) Theft of credit including the unlawful appropriation of trust funds.

The description of these offences does not accord with the description / elements of the offence of use of motor vehicle without the owner’s consent, which does not comprise of intention to permanently deprive the owner of the motor vehicle.

[19] This is not a case where Johnson suspected respondent of having stolen the car. He was aware from Scholtz’s report / statement that he had used the vehicle without his permission hence he charged respondent of use of a motor vehicle without the owner’s consent. So there can be no question of any suspicion though uncertain[3]on the part of Johnson that respondent had stolen the motor vehicle or had committed theft.. He knew what offence has been complained of – use of a motor vehicle without the owner’s consent. He could not have reasonably suspected respondent of having committed theft. It must be borne in mind that evidence during the trial revealed that Johnson was not some newly appointed recruit of the appellant. He had been an employee of the appellant for 27 years when he testified at the trial and had been a Warrant officer for 18 of the 27 years. It is no wonder he described the offences in question in his evidence as some sort of theft. He does not say it is theft. That is why he proceeded to charge respondent for use of motor vehicle without owner’s consent and not theft.

[20] In my view the Magistrate cannot be faulted for his finding that the reliance cannot be placed by the appellant’s employee, Johnson in Section 40 (1) (b). Put differently, the offence in respect of which the respondent was arrested is not listed under Schedule 1, is not one in respect of which a person can be arrested with a warrant. The arrest and detention of the respondent was therefore

unlawful.

[21] The order that I would propose in circumstance is the following:

The appeal is dismissed with costs.

N G BESHE

JUDGE OF THE HIGH COURT

TSHIKI J

I agree. It is so ordered.

PW TSHIKI

APPEARANCES

For the Appellants : Adv: NJ Sandi

Instructed by : STATE ATTORNEY

C/o YOKWANA ATTORNEYS

87 High Street

GRAHAMSOWN

Ref.: N Yokwana/M92

Tel.: 046 – 622 9928

For the Respondent : NO APPEARANCES

Instructed by : KEITH DIETRICH ATTORNEYS

C/o McCALLUM ATTORNEYS

GRAHAMSTOWN

Ref.: Mr Dietrich/4078

Tel.: 046 – 622 2372

Date Heard : 29 April 2016

Date Reserved : 29 April 2016

Date Delivered : 8 September 2016

[1] Section 12.

[2] Page 486-7.

[3] Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 at 658 H.