Flimsy grounds proferred for reasonable suspicion, are insufficient for arrest without a warrant - Mkwanazi and three others V Minister of Police, unreported case no EL 259/2016 and ECD 759/2016 dated 17 January 2017 Eastern Cape High Court, East London Local Court (ECELLC)
Mr Mkwanazi and three other men (hereinafter referred to as plaintiffs [Afrikaans: “eisers”]) instituted civil action for damages against the Minister of Police before the Eastern Cape High Court, East London Local Court, as a result of their alleged unlawful arrest and detention.
At the beginning of this (civil) trial, the court commenced its judgment by making the following remarks in paragraph  –
“ A peace officer’s job is not an easy one at the best of times. In the course of their duties they are regularly placed in situations where they are called upon to weigh up their statutory duty to enforce the law against the constitutionally entrenched rights of suspects. And these are more often than not snap decisions, taken on the spur of the moment and without the benefit of legal counsel. When the lawfulness of arrests is challenged by disgruntled suspects, the conduct of peace officers are critically picked apart by lawyers and pronounced upon by judicial officers. And in the sterile environment of a Court of Law their best intentions count for nought since their actions are considered objectively and measured against the exacting standards of the mythical ‘reasonable man’”*. (Emphasis added by Pollex.)
According to the court, this is exactly the invidious position in which W/O Eugene Chipps, a sector manager for Community Policing in the Beacon Bay area (near East London), found himself on Wednesday 9 December 2015. On the basis of information that W/O Chipps received through the WhatsApp chat group of a neighbourhood watch, he arrested the four plaintiffs without a warrant at about 09:00 that morning.
According to W/O Chipps, a message was posted around 08:00 on 9 December 2015 on the Beacon Bay Neighbourhood Crime Prevention Forum’s WhatsApp group, to the effect that there had been a housebreaking incident at Hawks Head Drive, Beacon Bay, and that a maroon Toyota Camry sedan was seen driving around in the area.
At the time it was a matter of public record that housebreakings in the area were rampant, and that police investigations seldom resulted in the arrests of suspects. According to the court, one can therefore understand W/O Chipps’s excitement and the over-exuberant (enthusiastic) manner in which he pursued investigation into what he considered to have been a “hot lead”.
Since, in W/O Chipps’s experience, housebreakings were rife in areas where building construction was taking place, he asked a local contractor whether or not he recognised the maroon Toyota Camry. The contractor’s reply was in the affirmative, and he said that it belonged to the first plaintiff, Mr Mkwanazi, who was also involved in various sub-contracts in the Beacon Bay area.
To cut a long story short, the first and second plaintiffs were soon thereafter arrested by W/O Chipps. Five of the first plaintiff’s other employees, including the third and fourth plaintiffs, were arrested about 30 minutes later. All four plaintiffs were taken to Fleet Street Police Station in East London where they were incarcerated until the following Monday 14 December 2015 (which was apparently the first court day after the expiry of the specified 48 hours)*. All four of the plaintiffs were released at approximately 10:00 that Monday morning without appearing in court, after the charges against all four of the plaintiffs had been provisionally withdrawn.
Not satisfied with this turn of events, all four plaintiffs instituted civil actions for damages (Afrikaans: “skadevergoeding”) referred to supra.
The defendant, namely the Minister of Police, submitted that the arrest concerned was made in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“the CPA”)* and that it was thus lawful.