Willie v Minister of Police and Others (A170/2019) [2020] ZAFSHC 122 (8 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal Case No: A170/2019

Case No (court a quo) RC 1559/17

In the matter between:

KODITSOE CATHRINE WILLIE Appellant

and

THE MINISTER OF POLICE First Respondent

CONSTABLE GUMEDE Second Respondent

CONSTABLE MASAKO Third

Defendant

JUDGMENT

CORAM: NAIDOO J et MOLITSOANE J

HEARD ON: 4 MAY 2020

JUDGMENT BY: NAIDOO J

DELIVERED ON: 8 June 2020

INTRODUCTION

[1] This is an appeal against the judgment of the Regional Court, Bloemfontein, dated 18 October 2018, in which the claim of the

appellant against the respondents was dismissed, with costs. Due to the national lockdown regulations to curb the Covid-19 pandemic,

physical appearances in court by parties, legal representatives and others were kept to a minimum. For this reason, we chose to deal with the matter in terms of section 19 (a) of the Superior Courts Act 10 of 2013, by disposing of the appeal without hearing oral argument. The parties were amenable to this. In terms of the Heads of Argument

filed, Adv MS Mazibuko represented the appellant and Adv KF Pieterse represented the respondents.

[2] The plaintiff sued the defendants for damages she suffered as a result of her being wrongfully arrested and detained, on 18 August 2017, in connection with criminal charges of contravening section 67(1)(a) of the South African Police Service Act 68 of 1995(Police Service Act) (Hindering the Police in the execution of their duties) and of section 128(3)(d) of the Free State Gambling and Liquor Act 6 of 2010 (Drinking in Public). Her version is that at approximately 19h00 on the relevant date, she had purchased a can of the alcoholic beverage, Hunter’s Gold, and was walking on the street in the company of her friend, when she was approached by the second respondent (Gumede) and asked to throw out the contents of the can. Her evidence was that the can was sealed and in her pocket. She gave the can to Gumede and told him to throw it away. He thereafter led her to the police van and it seems a scuffle broke out as the appellant refused to get into the police vehicle. She was apparently forcibly placed in the van by Gumede and the third respondent (Masako). Gumede got into the back of the vehicle with her and slapped her twice whilst inside the vehicle. She was taken to the police station, where she was charged and detained. I pause to mention that the appellant included in her Particulars of Claim, a claim for damages arising out of the alleged assault upon her by Gumede. At the commencement of the trial, the court was advised that she is abandoning her claim for damages in respect of the assault.

[3] The respondents’ version is that Gumede and Masako were performing crime prevention duties in the central business district

of Bloemfontein, when Gumede, who was the passenger in the police vehicle driven by Masako, noticed that a woman, who turned out to be the appellant, was consuming an alcoholic beverage. He alighted and asked her to throw away the contents of the can. She refused and he then requested her to accompany him to the police station so he could issue her with a notice to appear in court on a charge of drinking in public.

[4] By this time Masako had turned the vehicle around and joined him. The appellant refused to get into the police van and became

uncooperative, swearing at and insulting the police officers. After a scuffle broke out between the appellant and the police officers, they had to physically restrain her and place her in the police vehicle. She was taken to the police station where she was charged and handed a notice to appear in court for the offence of Drinking in Public. Gumede testified that he had no jurisdiction to issue a notice to appear in court on the charge of hindering the police. It seems she was handed over to a police official at the police station. They did not see the appellant again. It is common cause that the appellant was detained over the weekend and released on 21 August 2017

[5] The appellant assailed the judgment of the court a quo on a number of grounds, many of these being directed at the court’s evaluation of the evidence and/or its reasoning in the judgment, which led to the ultimate order. These, in summary, are that the court erred in:

finding that the second respondent arrested the appellant as soon as he held her by the arm to direct her to the police van, as that was not his evidence;

accepting the version of the respondents and in finding that they had proved that the appellant committed the offence of Drinking in Public;

rejecting the appellant’s version as not according with the probabilities of the matter;

not properly considering the evidence of the second and third respondents when assessing their credibility, and finding that they made a good impression on the court.

conflating the offences of resisting arrest, swearing at a police officer, interfering with a police officer’s uniform and hindering a police officer in the execution of his duties.

not considering the demeanour of the appellant in the witness box.

[6] The relevant provisions of section 40 (1) of the Criminal Procedure Act 51 of 1977 (the CPA) provide as follows:

“A peace officer may without warrant arrest any person—

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

(j) who wilfully obstructs him in the execution of his duty”

The court a quo set out the factual background to this matter at length and undertook a detailed analysis of the application of the law to the facts and the probabilities of the versions of the appellant and the respondents. The court came to the conclusion, in essence, that the respondents had proved that the arrest and subsequent detention of the appellant were lawful, and the appellant’s claim against the respondents for unlawful arrest and detention fell to be dismissed with costs. An order was accordingly made in those terms.

[7] The court a quo correctly enumerated the jurisdictional facts that must be proved in respect of a warrantless arrest in terms of section 40(1)(a), namely that (i) the arrestor must be a peace officer, (ii) an offence must have been committed, or an attempt have been made to commit an offence, (iii) in his/her presence. Similarly, the jurisdictional facts necessary to be proved in respect of section 40(1)(j), namely (i) the arrestor must be a peace officer, (ii) there must be a wilful obstruction of the officer, (iii) in the execution of his duties. The court found that, on the evidence, all jurisdictional facts in respect of both subsections of section 40(1) were established.

[8] I pause to mention that the appellant’s argument was that her refusal to dispose of the contents of the can, from which Gumede alleged she was drinking, is what gave rise to his decision to arrest her. The argument continues that the refusal to spill the alcoholic drink is not a criminal offence and could therefore not give rise to a lawful arrest. The arrest of the appellant on this basis was, consequently, unlawful. This argument is, in my view, erroneous and misplaced. Gumede’s evidence throughout was that as they approached the place where he spotted the appellant, she was walking in the opposite direction to which he and Masako were driving. She was thus facing them. As the passenger he was able to observe that she was drinking from the can. He called out to the appellant to throw away the drink, but she ignored him. He alerted Masako to his observation and requested him to stop the vehicle so he (Gumede) could alight and approach the appellant. Masako confirmed this aspect of Gumede’s evidence. He personally did not see the appellant drinking, as he was driving the vehicle.

[9] Gumede clearly considered the appellant’s act of drinking in public an offence, albeit a petty offence, and was prepared to let it go if she threw away the rest of the contents of the can. Common sense dictates that this request was to prevent her from continuing with her unlawful conduct of drinking in public. He was, after all, performing crime prevention duties. On her refusal to comply, he decided that he would charge the appellant for drinking in public and in order to do so, intended to issue her with the J534 notice, which he was authorised to do in terms of section 56 of the CPA. He however, did not have the requisite book containing the relevant notice and had to return to the police station in order to issue the notice to the appellant. The assessment of the trial court in this regard cannot be faulted. Therefore the appellant’s argument that her refusal to throw away the contents of the can was the reason for her arrest cannot be sustained.

[10] The court a quo found that as soon as Gumede took hold of the appellant’s arm to lead her to the police vehicle, the appellant’s freedom of movement was curtailed and he had assumed control of her movements. This constituted an arrest as envisaged in section 39 of the CPA. (See R v Mazena 1948(2) SA 152 (E), at p154). The court made this finding in spite of Gumede being under the impression that his action was a request not an arrest. As alluded to earlier, one of the grounds upon which the judgment of the trial court was assailed was that it erred in holding that Gumede had arrested the appellant as soon as he held her by the arm. In the appellant’s Heads of Argument, however, it was conceded that the court a quo was correct in making this finding. The approach in Mazena that a person is under arrest as soon as the police assume control over his movements was applied by the Appellate Division (as it then was) in State President v Tsenoli; Kerchhoffand Another v Minister of Law and Order and Others 1986(4) SA 1150 (A) at p1186 C-D.

[11] In Minister of Safety and Security v Kleinhans 2014 (1) SACR 613 (WCC) the peace officer who arrested the offender did not have the material to issue a s 56 notice on the spot. The court’s finding, at paragraph [26] are apposite:

“If, as in the present case, the peace officer does not have the necessary material (because his fine book is full), it is permissible in my view for him to arrest the offender for the purpose of taking him to a police station so that a s56 notice can be issued. The arrest in such a case still has the purpose of bringing the offender to justice.”

Gumede found himself in the same situation and for this reason requested the appellant to accompany him to the police station to issue her with the J534 notice in terms of s56 of the CPA. The arrest of the appellant was in the circumstances, permissible and lawful.

[12] The court a quo, correctly found that the appellant’s version that she had placed the can in her pocket, and thereafter Gumede approached her and her friend from behind and asked her to “throw that thing” away, did not accord with the probabilities of the matter. Gumede would not have been able to see the can if it was in her pocket and he was behind her. Therefore, he could not, logically, have asked her to throw it away. There were aspects of the appellant’s testimony in court that were not put to Gumede or which differed from her version as it appeared on the papers, and which led the trial court to find that she was an unsatisfactory witness. The court’s reasoning in finding that Gumede and Masako were good witnesses whose version could be accepted and relied upon, cannot be faulted. It is also the court’s acceptance of their version that led to the finding that the respondents had proved that the appellant had contravened section 128(3) of the Free State Gambling and Liquor Act 6 of 2010. In this regard too, the finding of the court cannot be faulted.

[13] The appellant’s argument that she could not have resisted arrest because she was not under arrest at the time that the scuffle between her and Gumede occurred, is at odds with her acceptance of the court’s finding that the arrest took place when Gumede took her by the arm and led her to the police vehicle. The belligerent, rude and offensive conduct of the appellant occurred after Gumede had effectively placed her under arrest by holding her arm and attempting to lodge her in the police vehicle. It seems that the video footage of the appellant’s conduct revealed that she behaved in the manner described by Gumede and Masako.

[14] The appellant persisted, in her Heads of Argument, with the view that Gumede had not made a decision to arrest her when the altercation between them occurred. This argument is misplaced, as it was eventually not in dispute that he arrested her before the altercation between them. Similarly, the reason for the arrest was the appellant’s unlawful conduct of drinking in public and not her refusal to dispose of the contents of the can containing the alcoholic beverage she was consuming. The appellant’s

assertions to the contrary are erroneous and cannot be sustained. The trial court’s finding that section 67(1)(a) of the Police Service Act was applicable to the current matter, in that the appellant’s conduct fell within the purview of that statutory provision, was correct, as were the remarks of the court regarding the unjustified attack on the motives of Gumede and Masako in arresting the appellant.

[15] The appellant raised the question in her Heads of Argument, “Did Constable Bothata Gumede and Constable Masako properly exercise their discretion in arresting the appellant?” The question appears to be answered later in the Heads by harping on the point that a refusal to dispose of the alcoholic beverage was not unlawful nor did the law authorise Gumede to insist on the disposal thereof. Gumede decided to arrest the appellant only after he failed to get her to throw out the contents of the can. This, it is argued, was not meant to bring the appellant before court, but to harass and punish her. I have already dealt with the lack of merit in the argument that the decision to arrest was based on the appellant’s refusal to throw out the contents of the can of cider. The appellant fundamentally attacks the discretion of the arresting officer to arrest her. Both parties referred to the matter of Minister of Safety and Security v Sekhoto 2011(5) SA 367 (SCA) [also reported at 2011(1) SACR 315 (SCA)].

[16] The Appellate Court held, with regard to the discretion of a peace officer, that it remains a general requirement that any discretion must be exercised in good faith, rationally and not arbitrarily. The court said further at paragraph [39]:

“This would mean that peace officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of rationality. The standard is not breached because an officer exercises the discretion in a manner other than that deemed optimal by the court. A number of choices may be open to him, all of which may fall within the range of rationality. The standard is not perfection or even the optimum, judged from the vantage of hindsight — so long as the discretion is exercised within this range, the standard is not breached.”

It is a well-established principle in our law that any arrest and detention is prima facie wrongful. The state (in this case the respondents) bore the onus to allege and prove the lawfulness of the arrest. [See, for example Minister of Law and Order v Hurley 1986(3) SA 568 (A) and the cases cited therein; Lombo v African National Congress [2002] ZASCA 61 and also cited as [2002] 3 All SA 517 (SCA)]. The duty to begin, consequently rested with them. The court a quo found that the respondents did in fact establish that the arrest was lawful.

It is equally well established in our law that once the jurisdictional facts are proved to show that the arrest was lawful, then the discretion of the arresting officer, to arrest or not, is triggered. If a plaintiff alleges that the arresting officer exercised that discretion improperly, the onus is on him/her to prove it. [See Barnard v Minister of Police 2019(2) SACR 362 (ECG) at para 48].

[17] No evidence was led in this regard, other than that of the appellant, whose version was (correctly) rejected by the court a quo. She, in any event offered no reason in support of her contention that the arresting officers improperly exercised their discretion in favour of arresting her. The appellant failed to call her friend who had accompanied her that day and who was obviously an eye witness, as she was the person who recorded the arrest of the appellant. The court correctly drew a negative inference from such failure on the appellant’s part. The trial court undertook a thorough and detailed exposition of the relevant case law, applied the applicable law to the facts of this case and correctly concluded that the respondents had discharged the onus on them to prove that the arrest and detention of the appellant was lawful, and that the appellant had failed to make out a case for the relief she sought. As I indicated previously, the reasoning and the order of the trial court cannot be faulted. Each party sought judgment in his/her respective favour with costs. I see no reason why costs should not follow the result.

[18] In the circumstances, I make the following order:

The appeal is dismissed with costs

__________________

S. NAIDOO, J

I concur

____________________

P MOLITSOANE, J

On behalf of Appellant: Adv. MS Mazibuko

Instructed by: Sebogodi Attorneys

c/o Mokhomo Attorneys

Suite 513 President Building

119 St Andrews Street

Bloemfontein

(Ref:OMS/CIV010/2017)

On behalf of Respondents: Adv. KF Pieterse

Instructed by: Ms CE Cawood

Office of the State Attorney

11th Floor Fedsure Building

49 Charlotte Maxeke Street

(Ref: 66/201701366P12W)