Brits vs. Minister of Police & Another - (23 Nov 2021)

Arrest without a warrant would be justified provided arrestor must be a peace-officer and suspicion must rest on reasonable grounds

Criminal

The issue before the SCA was whether the second Respondent, Col Espach, had acted wrongfully and unlawfully when he arrested the Appellant, Mr. Christiaan Brits, without a warrant at the latter's business premises, a dealership in second hand goods and scrap metal, on suspicion of being complicit in the offence of possession of property suspected to be stolen.

On the morning of 4 July 2014, the Appellant received a text message (SMS) from his former employee, Mr. Dube, informing him that he had copper for sale. Seeing that all business transactions were done at his business premises, the Appellant sent Mr. Dube an SMS informing him to take the copper to his shop. The Appellant subsequently received a call from the manager of his business, Mr. Mashapu, who told him that the police were at the business premises and required his presence.

Upon the Appellant’s arrival at the shop, Col Espach told him that, Mr. Mashapu had purchased stolen copper and that he (the appellant) would therefore be arrested. The Appellant professed his innocence and informed Col Espach about the SMS he had received from Mr. Dube that morning. He also offered to assist Col Espach to locate Mr. Dube. After reading the SMS exchange, Col Espach confiscated the Appellant’s cellphone and then arrested him. He was detained and subsequently released on bail.

In Duncan v Minister of Law and Order for the Republic of South Africa (Duncan) it was held that an arrest without a warrant would be justified as envisaged in Section 40(1)(b) of the CPA if the following jurisdictional facts were present: (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. No doubt the discretion must be properly exercised. But the grounds on which the exercise of such a discretion can be questioned are narrowly circumscribed.’

Applying the same reasoning as in Duncan, the jurisdictional factors that have to be proved by a defendant who relies on Section 40(1)(e) as a defence are: (i) the arrestor must be a peace officer; (ii) the suspect must be found in possession of property; (iii) the arrestor must entertain a suspicion that the property has been stolen and illegally obtained; (iv) the arrestor must entertain a suspicion that a person found in possession of the property has committed an offence in respect of the property; and (v) the arrestor’s suspicion must rest on reasonable grounds. It is trite that once jurisdictional facts for an arrest in terms of any one of the paragraphs of Section 40(1) are present, a discretion arises.

The Appellant had never been shown to have exercised any control over the illicit goods. It found that, contrary to the high Court’s finding, the Appellant had never admitted to knowing that the copper cables were stolen. It noted that, Col Espach’s own version was that the bag containing the copper cables was still on the counter when he entered the shop and had not been locked away. Under those circumstances, the Supreme Court found that, the Appellant had never exercised direct control over the copper cables. It was also not persuaded that Mr. Mashapu ever assumed possession thereof. Col Espach acted wrongfully and unlawfully when he arrested the Appellant without a warrant. In respect of the quantum of damages, the present Court considered an amount of R70 000 to be an appropriate award of damages for the Appellant’s unlawful arrest and detention.

Tags : WARRANT ARREST LEGALITY