SA HC | Arrest without warrant on reasonable suspicion supplants the claim for compensation for unlawful arrest and malicious prosecution  

South Africa High Court, Eastern Cape Local Division: M.S. Jolwana, J. held that even if the plaintiff is arrested and spends some time in incarceration in conditions that are less than ideal, he will not necessarily be entitled to compensation.

The Plaintiff, a student of Bachelor of Education in Humanities at the Walter Sisulu University, Nelson Mandela Drive, Mthatha (WSU) was arrested by South African Police Service for alleged possession of drugs on 24 November 2015.  He alleged that police had neither any reasonable suspicion nor justifiable cause and without any warrant authorizing his arrest. He was granted bail two days later.

The plaintiff alleged that in the middle of the night, police officers banged the door of the room where he stayed with three other boys. After he had opened the door, guns were pointed at them and were asked to face the wall. The police officers were in their uniforms but without name tags.

Thereafter, the Police took a plastic bag that was under the bed and had dagga (cannabis) in it. They asked who it belonged to and one of the roommates (S) of the plaintiff said it was his. He said that it was given to him by his grandfather as a treatment for flu. One of the police officers took him outside the room, handcuffed him and asked him for information on who was dealing with drugs and how was the dealing done. He told the police officer that he did not know anything about drugs. He was then assaulted.

After being granted bail, on cross-examination, the plaintiff testified that he had no idea from where did the plastic bag containing dagga came in the room. Plaintiff further testified that before the police went to their room they searched in another room. It was in that other room where there were dagga dealing and smoking.

The Court found this testimony very unusual as the plaintiff did not testify the same in the examination-in-chief.

Counsel for the first defendant, J.J. Bembe, submitted that there was no forced entry into the plaintiff’s room and information received from a radio control led her and other police officers to the room.  When the bag which had a plant of dagga with roots was found in the room, the roommate S only said that the money in the bag was his and he had got the money from selling drugs and that his drugs were finished.

Counsel for the second defendant, C.N. Qikila, submitted that all the requirements for a case of malicious prosecution were not fulfilled by the plaintiff. A case was referred to support this submission, which is Minister of Police and Constitutional Development v Moleko [2008] ZASCA 43 in which a Judge remarked that ‘a claimant must allege and prove in order to succeed his/her case of malicious prosecution

(a) that the defendants set the law in motion (investigated or instituted the proceedings); acted without reasonable and probable cause; acted with ‘malice’ (or animo injuriandi); and the prosecution failed.’

In this regard, the Court observed that the Director of Public Prosecutions (Second Defendant) had nothing to do with the case since its very inception. The Court could not accept that in the room S exonerated them and yet at the police station all of them exercised their right to remain silent and consulted their legal representatives.

The Court further held that the actions of the police were authorized in terms of Section 40(1) (h) of the Criminal Procedure (Act 51 of 1977) which states that a peace officer has the power to arrest anyone without warrant of arrest if s/he has a reasonable suspicion of commission of an offence.

The Court also cited a judgment, Minister of Police v. Matroos, 2018 JDR 2065 (ECG) in which it was observed that “…what is required is suspicion and not a certainty. The arresting officer cannot be expected to analyse the information as if he is considering to convict an arrestee.” [Kokela Sivuyise Yanga Sigonya v. Minister of Police, Case No. 342 of 2017, decided on 22-05-2019]

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