Minister of Safety & Security and Another v Zulu (AR238/08) [2010] ZAKZPHC 95 (14 May 2010)

IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA

AR238/08

THE MINISTER OF SAFETY AND SECURITY …..............First Appellant

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT ….......................Second Appellant

versus

WELCOME ZWELIHLE ZULU ….............................................Respondent

Judgment

Delivered on: 14 May 2010

Steyn J

[1] This is an appeal against a judgment by the Magistrates’ Court Pinetown, whereby the respondent claimed damages from the two appellants and the Court a quo granted an order in favour of the respondent. The Court a quo also ordered the appellants to pay the respondents costs of the action, jointly and severally, the one paying the other to be absolved. On behalf of the appellant it is averred that the court a quo had erred in its findings on fact and law, when it was held that the appellants failed to discharge the onus resting upon them on

a balance of probabilities, to show that arrest was lawful and that the prosecution was not maliciously instituted.

[2] The background:

The Respondent’s claim in the Court a quo was based on the fact that he was wrongfully arrested by the members of the South African Police Services, in the employment of the first Appellant, on the 16th July 2004, and that the said members wrongfully and maliciously set the law in motion by laying a charge of housebreaking. As a result of the said members’ conduct the Respondent was prosecuted and detained for 101 days until the charge was withdrawn against him on 25 October 2004.

Appellants relied, in main, on the evidence of inspector Lambrechts in the court a quo to escape liability. In essence he confirmed that a member of the public had seen the respondent and others in possession of suspected

stolen property and reported it to him. On this information, which appears ex facie the record to have been from an informer, he proceeded to the house of the respondent. His police statement reads as follows:

“At this house I found one suspect known as Zwelihle Zulu. He took me to the house of Zamane Mkhize at his house we found the following items 1) Sanyo Tape Deck; 2) M-net decoder; 3) Sony play station and two remotes …..”

[3] The record of the proceedings of the criminal trial reveals the following facts:

“Accused 1: Okay, when you found me was I in possession of something? – Not at the time when we found him.

How sure are you that I was the person ho had broken into the house in Kloof? Did you take fingerprints or something? – Well that information we received was that … [inaudible] and he was retained so fingerprints could be taken for that purpose.

You acted on what you heard by someone, so I am talking about you as a policeman. Do you have tangible proof that I was the one who had broken into that house? – All the information led us to the property and to the house, Your Worship, so to me that was sufficient proof to detain the suspect.”1

(My emphasis)

Mr Kwitshana, acting on behalf of the Appellants, argued that even though the stolen goods were not found in the Respondent’s house, he remained guilty of an offence, since goods were found in possession of two other suspects which were pointed out by the Respondent. I shall return to this submission in discussing the necessary statutory requirements for an arrest without a warrant and more specifically the requirement of what constitutes a reasonable suspicion.

[4] The evidence of inspector Lambrechts before the court a quo reveals that he received telephonic information from a member of the public. The gist of the information was that the respondent was seen with two other men, with suspected stolen property. Lambrechts testified that the respondent was known to him and he decided to go to the respondent’s house later that evening. What happened shortly before he exercised his discretion to arrest the respondent, was the following:

“Did the informant mention the plaintiff by name? – Yes. Did the informant mention the other two suspects by name? – No, he just said that Mr Zwelihle Zulu was in the company of two other guys and they have got property that is suspected to be stolen. In other words at that stage you were not pursuing a specific case that you knew that a docket had been opened, you were responding to the concern of the members of the public? – Yes, that is correct. As they were in possession of suspected stolen property – At that time, yes, I was acting on information that they had stolen property.

Then how did you enter the plaintiff’s house? – Knocking on the door.

What did he do? – He opened the door. He was asleep and then he opened the door.

What did you say to him when you entered the house? – We informed him that we have received information about property that is suspected to be stolen and asked him if he knew anything about it. We informed him of his rights that whatever he says to us could and will be used against him at a later stage if it does get to a court case. He then informed us that he was in the presence of the guys and he could point out the houses were the property was and he did so freely without any encouraging.

Did you recover any property from the plaintiff’s house? – No.”

Despite the fact that the respondent had no stolen goods in his possession and despite the fact that inspector Lambrechts had no personal knowledge or observation of any offence being committed, he proceeded to arrest the respondent on a charge of housebreaking with the intent to steal and theft.

[5] In light of all the evidence the learned Magistrate after a careful analysis came to the following conclusion:

“It is quite clear to this Court that the facts of the evidence of Inspector Lambrechts when he attended the house of the plaintiff, no such goods were found on the plaintiff or his premises and this in itself should have alerted him to the reliability of the information which he was intent on acting upon.

Another important fact in my view is that when he arrested the plaintiff in this matter he himself did not search the plaintiff’s premises and I found it strange in light of the fact that he ought or should have done so, bearing in mind that he was the arresting officer who was given the information on about the plaintiff’s alleged involvement in the housebreaking or the possession of the stolen property.

By arresting the plaintiff before searching the house and before establishing a de facto reliance on the information he in fact placed the cart before the horse.”

[6] Based on scant facts the prosecution did not ask that the respondent be released after his appearance in court. Instead it was asked by the prosecution that the respondent be detained. Bail was fixed at R4000, at a later stage but the respondent was unable to pay. In my view a prudent prosecutor is obliged to exercise a discretion once in receipt of the docket and had to apply his/her mind to the facts of the case. The prosecutor should have withdrawn the charges against the respondent, since there was no admissible evidence that could be adduced by the state in proving any offence against the respondent.

It is evident from the learned Magistrate’s judgment that he considered the conduct of all involved, and concluded that since there was no reasonable or probable cause for instituting the prosecution, it has to follows that there had to be malice. Importantly given the specific facts of this case, the prosecution was triggered by the arrest of the respondent by inspector Lambrechts.

[7] Through the development of our jurisprudence the following criteria emerged, in matters where an arrest took place without a warrant.

Firstly, there has to be a factual basis for the suspicion of a crime being committed;

Secondly, a reasonable officer would analyse and assess the quality of any information critically and would not accept it lightly without verifying the information received.

Thirdly when a suspicion is formed, such suspicion must be that of the officer himself and reliance cannot be placed on a suspicion made by someone else.

The conduct of inspector Lambrechts when measured against the aforementioned criteria falls far short of what had to be established to discharge the onus of a lawful arrest, especially in the instance where there was no warrant.

[8] Legislative framework

The lawfulness of the arrest by inspector Lambrechts should be determined by considering the applicable provision governing arrest. Section 40(1) of the Criminal Procedure Act,2 reads as follows:

“(1) A peace officer may without warrant arrest any person –

(a) . . .

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1 other than the offence of escaping from lawful custody …”

[9] There are a number of other circumstances set out in the subsection in which a person may be arrested without warrant by a peace officer, but none of them are applicable to this case and will therefore not be discussed.

[10] In Schedule 1 to the Act, which is referred to in s 40(1)(b), is a list of offences, and also categories of offences, in which the following are included:

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

“Interrogation as the sole purpose of detention may not be an acceptable purpose in an open and open democratic society.”

[11] In Botha v Lues3 Corbett JA (as he then was) quoted with approval a passage from a judgment of the Court a quo:

“Die vraag is slegs of, volgens suiwer objektiewe maatstaf, en inaggenome al die tersaaklike feite en omstandighede, 'n redelike man sodanige gronde van verdenking sou gekoester het om, verstaanbaar, tot uitoefening van sy arrestasiebevoegdheid oor te gaan.”4

[12] I align myself with the view of Jones J in Minister of Safety and Security v Glisson:5

“[T]he courts have given a precise meaning to the phrase ‘in his [the peace officer’s] presence’. One of the purposes of requiring the offence to be committed in a policeman’s presence is to ensure that he has direct personal knowledge of the arrested person’s conduct and is able to reach the conclusion on the strength thereof that the arrested person has prima facie committed an offence. The section does not provide him with protection if he acts solely on what he has been told by another, even if that other is a fellow policeman (Areff’s case (supra); R v Kleyn 1937 CPD 288 at 292.”6

[13] I am very mindful of two divergent schools of thought that developed when it comes to the obligations of police officers when they exercise their discretion to arrest.7 Recently in Le Roux v Minister of Safety and Security and Another8 however this division preferred the approach adopted in Louw and Madondo J succinctly stated the approach as follows:

“If an accused is not a danger to society, will stand trial, will not harm others or be harmed by them, and may be able and keen to disprove the allegations against him or her, an arrest will ordinarily not be an appropriate way of ensuring the accused’s presence in court”9

[14] With reference to the requirement of the reasonableness of a suspicion, the Court in April v Minister of Safety and Security10 under circumstances where the police’s suspicion was based on the fact that the vehicle of the plaintiff fitted the broad description of one of the cars that was allegedly used in the robbery that it had tinted windows and that it had sped off in an attempt to get away and in a manner that the occupants had something to hide. The Court held that this factual basis could not give rise to a reasonable suspicion11 within the meaning of s 40(1)(b) that the occupants had committed a Schedule 1 offence.12

[15] It is clear that Lambrechts relied on a suspicion made by someone else, he failed to verify and test the suspicion, nor could the suspicion have been reasonable, given what transpired the evening at the respondent’s house. I can find no misdirection by the learned Magistrate on either the facts or the law.

[16] Accordingly I propose that the appeal be dismissed with costs.

_____________________________

Sishi J: I agree.

Sishi J

Date of Hearing: 16 October 2009

Date of Judgment: 14 May 2010

Counsel for the appellants: Adv A M Kwitshane

Instructed by: The State Attorney (KwaZulu-Natal), Durban

c/o Cajee Setsubi Chetty Inc.

Counsel for the respondent: Adv W S Kuboni

Instructed by: Thami Ndlovu & Company

c/o Ngcobo, Poyo & Diedrichs Inc.

1Record page 73.

2No. 51 of 1977 hereinafter referred to as ‘the Act’.

3 1983 (4) SA 496(A).

4Op cit at 503D.

5 2007 (1) SACR 131 (ECD).

6Op cit at 133c-e.

7See Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR (T) and Charles v Minister of Safety and Security 2007 (2) SACR 137 (W).

7See Louw and Another v Minister of Safety and Security and Others 2006 (2)

SACR (T) and Charles v Minister of Safety and Security 2007 (2) SACR 137 (W).

82009 (4) SA 491 (N).

9Op cit para 39.

10 2009 (2) SACR 1 (SE).

11Also see Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T) for a discussion of reasonable suspicion.

11Also see Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T) for a

discussion of reasonable suspicion.

12Also see Brown v DPP 2009 (1) SACR 218 (C).