Minister of Safety and Security and Another v Mhlana (A328/09) [2010] ZAWCHC 23; 2011 (1) SACR 63 (WCC) (19 February 2010)

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: A328/09

In the appeal of:

THE MINISTER OF SAFETY & SECURIY & 1 OTHER APPELLANTS

and

P MHLANA RESPONDENT

JUDGMENT DELIVERED ON 19 FEBRUARY 2010

MEER J:

[1] The Appellants appeal against an order of the Cape Town Magistrate's Court dated 30 March 2009, which awarded the sum of R50,000.00 plus costs to Respondent for unlawful arrest and detention, the said sum to be paid by Appellants jointly and severally. Appellants contend that the arrest was lawful and justifiable in terms of Section 40 (1) (a) of the Criminal Procedure Act No 51 of 1977.

[2] The Respondent in turn cross appeals against the upholding of Appellants' (Defendants') special plea and the dismissal of Respondent's claim for malicious prosecution.

Background Facts

[3] The facts and circumstances which lead to Respondent's arrest are simple enough. On the afternoon of 13 August 2006 Respondent, who is an attorney in the employ of the State Attorney, Cape Town, had parked his vehicle in an area demarcated with "No Stopping" signs, and therefore a no stopping zone, outside the Good Hope Centre in Cape Town for close on to five minutes. During some of this time he spoke on his cell phone. Traffic Officer Innes Lackay employed by the City of Cape Town, and on duty in the area, exhorted him to leave the no stopping zone, according to her both by signalling and siren, but to no avail, whereupon she approached him. He pulled away, nearly driving over her feet, she said, and in reflex she banged her left hand against the side window of his vehicle. Respondent braked and an altercation ensued between him and Lackay during which Respondent is alleged to have aggressively shouted at Lackay, and accused her of smashing his window even though there was no damage to it. Lackay proceeded to get her ticket book to charge Respondent whereupon he drove off leaving a shaken Lackay. Respondent returned a few minutes later with Constable Els of the Kensington Police who was patrolling the area, and who accompanied Respondent to the scene at the latter's request.

[4] Further heated exchanges between Respondent and Lackay ensued culminating on the version of Lackay and Els, in Respondent assaulting Lackay, (a fact which Respondent denied), his arrest for assault and riotous behaviour, and subsequent detention for four hours. Respondent was thereafter charged with assault. In September 2006 Respondent submitted written representations to the Office of the Director of Public Prosecutions for the prosecution against him not to proceed, referring therein to the "unfounded charges and their trifling nature". Thereafter Respondent appeared in the Cape Town Magistrate's Court approximately seven times due to various postponements, all at his behest it would seem, whilst he awaited the outcome of his representations. On 2 March 2007 the charge of assault was withdrawn, as a consequence of his representations, it would appear. Neither Traffic Officer Lackay, the complainant to the assault charge, nor Constable Els who had made a statement pertinent to the charge, were consulted prior to the withdrawal of the charge.

[5] Respondent thereafter sued Appellants for R100 000.00 for unlawful arrest and detention, as Claim A, and R100 000.00 for malicious prosecution, being Claim B. The Court a quo awarded Respondent R50 000.00 in respect of Claim A. Claim B was dismissed, the Court accepting Appellants'special plea that the complainant in the assault charge was Lackay an employee of the City of Cape Town and not the Second Defendant, and the Defendants (Appellants) should therefore not have been cited as parties to the cause of action upon which that claim was founded.

On appeal

[6] A perusal of the record leads me to the view that the Magistrate correctly accepted from the evidence of Lackay and Els that the probabilities favoured their version that there had been an assault on Lackay by the Respondent. Lackay and Els corroborated each other in all material respects, and unlike the evidence of Respondent, their testimony withstood rigorous cross-examination.

[7] The uncontroverted evidence of Lackay and Els of events immediately preceding Respondent's arrest, his arrest and events immediately thereafter is pertinent to a consideration of the lawfulness or otherwise of his arrest.

[8] According to Lackay when Respondent returned to the Good Hope Centre with Els, he was very angry. Lackay described him as violent, riotous, very dramatic, his arms were flailing all over the show, and he was frothing at the mouth. All the while he was complaining about her smashing his window. When Respondent realised the police were not going to take action against Lackay, he became even more angry and started approaching her, stepping towards her. They realised the situation was volatile and Els told Respondent to calm down, but he did not do so. Instead, he had his eyes set on Lackay, looked like he was going to attack her, and then shoved her in the chest. The minute he touched her Els and his colleague arrested him.

[9] Constable Els's testimony similarly is that when he first encountered Respondent he was very angry, in shock and not speaking clearly. He asked Els to accompany him to the scene where the traffic officer had banged his window. Els told him that a complaint could not be lodged for banging on the window if there were no damages. The Respondnet became very agitated, and started banging on his car. Els could not get through to him, so Els went to hear Lackay's side of the story. Whilst Els was talking to Lackay, Respondent shouted at her, lost his temper, rushed to her and proceeded to assault her. According to Els he pushed her forcefully. Els was left with no option but to arrest Respondent because he had become violent. Els was afraid that if he did not arrest him, he would use more violence on Lackay. Els said he had to physically grab Respondent because he was still moving and it looked like he wanted "to do something else."

[10] Els informed Respondent he was arresting him for riotous behaviour and assaulting a traffic officer in his presence. Els enquired from Lackay if she wanted to lay a charge and she replied in the affirmative. Els understood that he, Els, would be the complainant on the riotous behaviour charge, and Lackay the complainant to the assault charge. That was the evidence of Lackay and Els on the arrest.

[11] I pause to mention that in contrast to testimony of Els and Lackay the Respondent's testimony was at times evasive and even aggressive. In addition, he was not satisfactorily able to explain why certain important aspects of his evidence in chief were not put to Els or Lackay. He could not for example explain why his evidence that Lackay tore up her statement when she discovered he was an attorney, was not put to Lackay or why his view that he was arrested "because of the race of Els and Lackay", which emerged during cross examination was not put to them. Respondent's initial explanation for his arrest, proffered during evidence in chief was that he was arrested because he had objected to Lackay and Els speaking Afrikaans. Lackay and Els both testified they had spoken English.

Was Respondent's arrest lawful in terms of Section Section 40 (1) (a) of the Criminal Procedure Act No 51 of 1977?

[ 12] Section 40 (1) (a) states:

" 40 Arrest by peace officer without warrant

A peace officer may without warrant arrest any person

(a) who commits or attempts to commit any offence in his presence;"

The section clearly authorises a peace officer to arrest without warrant a person who

commits or attempts to commit a crime in his presence. Du Toit's Commentary on the

Criminal Procedure Act1>, notes that an arrest in terms of the subsection is only lawful if carried out at the time of the commission of the crime and that the onus is on the peace officer who relies upon the subsection to prove that a crime was committed in his presence.

[13] It is accepted that all that is necessary for a successful reliance upon section 40(1 )(a) is the observance of behaviour which is prima facie criminal. See Minister of Justice and Others v Tsose 1950(3) SA 88 (T) at 92H-93A where, commenting on section 26(a) of Act 31 of 1917, the predecessor of Section 40(1 )(a) of Act 51 of 1977, Malan J stated:

"If a peace officer, as a result of observations, honestly and reasonably comes to the conclusion that a crime is being committed, he may act upon such opinion or belief, even though in subsequent proceedings, whether civil or criminal, it is not proved that crime was in fact committed. Moreover, in order to justify the apprehension and to determine whether or not a crime is being committed, the arrestor should not be confined to what he perceives at the time of arrest, but may import into his decision the antecedent conduct of the arrested person, as well as his knowledge of all the relevant surrounding circumstances and thus supplement what is perceived by him. "

[14] From the evidence it cannot be questioned that Constable Els honestly and reasonably came to the conclusion that a crime was being committed by Respondent in his presence, given what Els observed of Respondent's conduct and his assault on Lackay. There is moreover no evidence to suggest that the reason for the arrest was other than for the lawful purpose of charging and prosecuting Respondent. Were that not to have been so, the arrest could not have been lawful. See Sex Worker Education and Advocacy Task Force v Minister of Safety and Security and Others 2009 (6) SA 513 (WCC) at paragraphs 20-33

[15] It needs to be emphasised, especially in the light of the Magistrate's characterising the arrest as unlawful, seemingly because Respondent was not charged with riotous behaviour, (a reason given to him by Els for his arrest), that in order for a peace officer to be placed in a position to rely upon section 40(l)(a), it is not necessary that the crime be in fact committed, or that the arrestee be later charged and convicted of the suspected offence. See Du Toit supra at 5-9. See also R v Moloy 1953 (3) SA 659 (T) 662. The learned Magistrate overlooked this in characterising the arrest as unlawful on account of his analysis that Respondent's conduct did not comply with the requirements for a charge of riotous behaviour, and by focussing on a perceived time lapse between the arrest for riotous behaviour and that for assault. In this regard it is clear that Respondent was arrested after Els observed behaviour which to him was prima facie criminal, being that of riotous behaviour and assault. The fact that Respondent's conduct might not have resulted in a charge of riotous behaviour, does not in any way detract from this. Moreover, the magistrate erred in distinguishing between an unlawful arrest in respect of riotous behaviour, on the one hand, and a lawful arrest for assault on the other hand.

[16] I am satisfied in the light of all of the above that in arresting Respondent Els was acting within the ambit of Section 40 (1) (a) of Act 51 of 1977. This being so, the appeal must succeed.

[17] In respect of the cross appeal the Magistrate correctly in my view upheld the special plea, as Lackay the complainant to the assault charge clearly is not in the employ of the First Appellant (First Defendant). Respondent ought to have instituted proceedings on a charge of malicious prosecution against the City of Cape Town, Lackay's employer. The prosecution cannot in the light of all the circumstances, be viewed as malicious. It must also be borne in mind that the seven postponements in the Court a quo were occasioned by Respondent because he was waiting for the outcome of his representations to the Director of Public Prosecutions for the withdrawal of the prosecution against him. On that aspect I express my concern and indeed dismay that the charge against Respondent was withdrawn without Constable Els and Traffic Officer Lackay having been consulted.

[18] I would accordingly uphold the appeal with costs, and substitute the following order for that granted in the court a quo: The plaintiffs claim is dismissed with costs. 1 would dismiss the cross appeal with costs.

MEER, J

I agree

KOEN, AJ

1 Juta, Service 38 2007 at 5-8, Service 38 2009 at 5-9