- Mxolisi Mananga and Others v Minister of Police (Case no 342/2020)  ZASCA 71 (4 June 2021) (SCA)
Relevant legal provisions
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“the CPA”) provides as follows:
“40. Arrest by peace officer* without warrant
(1) A peace officer may without warrant arrest any person -
(b) who he or she reasonably suspects of having committed an offence referred to in Schedule 1 [of this CPA], other than the offence of escaping from lawful custody;
(c) to (q) …
(Emphasis added and words in square brackets inserted by Pollex.)
Schedule 1 of the CPA referred to supra provides, for as far as it is relevant to this discussion, as follows:
“Assault, when a dangerous wound is inflicted.” In the Afrikaans text: “Aanranding, wanneer ‘n gevaarlike wond toegedien word.”*
On p129 of Criminal Law, fifth edition by Snyman, as published by LexisNexis, the learned author Snyman defines the ground of justification of “official capacity* as follows:
“An act which would otherwise be unlawful is justified if X is entitled to perform it by virtue of the office he or she holds, provided it is performed in the execution of his or her duties. For this reason, the clerk whose duty it is to look after the exhibits in court cases is not guilty of the unlawful possession of drugs which are exhibits in a court case; the official whose duty it is to confiscate liquor or a dangerous weapon in terms of a court order does not commit malicious injury to property, and the police official who searches an arrested or suspected criminal does not commit assault or crimen injuria.”
On 15 March 2015, in the district of Cofimvaba*, Mr Ncedile Duel Sambunjana (hereinafter referred to as the complainant) was allegedly assaulted by a number of assailants, including Messrs Mxolisi Mananga, Thando Ngqoyi and Mava Mananga (hereinafter collectively referred to as the appellants). The complainant was severely beaten and sustained, inter alia, five lacerations on his head and a fractured wrist*.
As a result of these injuries the complainant proceeded first to the nearby clinic to seek medical assistance, from where he was transported by ambulance to the Covimvaba Hospital. There his head wounds were sutured (Afrikaans: “toegewerk/vasgeheg”) whereafter he was transported to a hospital in East London for the assessment of his wrist. At the East London Hospital his wrist was immobilised in a plaster of Paris before he was again returned to Covimvaba. In Covimvaba, he was admitted and kept in hospital until 19 March 2015. Upon his discharge, he proceeded first to a doctor to obtain a J88 medical report, and then to the SAPS in order to lay a charge of assault with intent to do grievous bodily harm (hereinafter referred to as “assault GBH”). Accordingly, a police case docket was opened in which the complainant recorded the events supra and in which he identified his assailants.
Civil claims against the Minister of Police in the High Court in Mthatha
Not satisfied with their arrests, the appellants sued the Minister of Police (as the employer of W/O Qunta) for damages in respect of wrongful and unlawful arrests, before the High Court in Mthatha. The Minister admitted that the appellants were arrested without a warrant, but denied that it was wrongful and unlawful. According to the Minister, the arrests had been effected “in terms of section 40(1)(b) of the CPA supra, as they (the appellants) were [reasonably] suspected of having committed an offence referred to in Schedule 1 of the CPA namely, “assault, where a dangerous wound is inflicted” (see supra). As the High Court accepted the Minister’s defence, it gave judgment in favour of the Minister.