2015 / 09 / 01
It is estimated that Civil Litigation against the Police has cost the taxpayer
over 860 Million rand in the past six yearsi. These claims are mostly for unlawful arrest, unlawful detention, assault (police brutality) and even loss of income in some instances. Simply put the Police is being held accountable for the abuse of authority their employees are dishing out, commonly referred to as vicarious liability. It has become lucrative to proceed with litigation because you know there will be means to pay any judgment obtained.
A significant authority bestowed on a police officer is to arrest without a warrant in terms of Section 40(1)(b) of the Criminal Procedure Act. This section entails that an officer may arrest a suspect if the offence had been committed in his presence or he reasonably suspects the suspect
of having committed a schedule one offenceii. The object of arrest is to
bring a suspect/accused before a court and nothing else. The important aspect with regards to a police officers “authority” or discretion is that the officer had to reasonably suspect. These two words have been the subject of many appeals and the Courts have seemingly refrained from establishing a common formula for the section, however what can be sure is that if the police officer can show that he had objectively viewed the evidence in front of him and thereafter formed the suspicion, he may proceed with an arrest even if there are less invasive ways to secure a person before court. Unfortunately this can and has led to abuse of authority.
In Minister of Safety and Security v Tyokwanav a man issued summons against the Police (vicarious liability against the offices of Minister of Safety and Security) for unlawful arrest, assault and malicious prosecution. The case revealed that the 19 year old man was arrested after having been accused of stealing a police officer’s service pistol out of a police vehicle’s cubbyhole. The man was assigned to wash the said
Vehicle by the police officer. He was beat by the police officer, even scolded with warm water and forced to plead guilty to the charges. Two others that were washing vehicles with him were also beat and forced to say that he stole the gun. The police officer made sure to keep a close eye on the man which includes personally driving him to the Court and personally attended the Court as Orderly, on the day the man pleaded guilty. The man later changed attorney and changed his plea to not guilty before he was sentenced. The man then applied for bail but it was refused due to misrepresentations the police officer made to the prosecutors and the Court. The man was kept in prison for over 2 years awaiting trial and was on the said trial acquitted of all charges. On the trial of the civil matter the police officer was found to be an absolute liar, contradicting himself throughout and could subsequently not even remember where the gun was “pointed out to him”, allegedly, by the accused man. Both the other “witnesses” had also confirmed that they had been assaulted and forced to say that the man stole the gun.
Now of course the man in the mentioned case stand to be awarded a few hundred thousand rand in compensation, but does it really make up for two years in prison as well as the mental suffering of injustice at the hand of those who are supposed to uphold the law, serve and protect? A question that is seldom answered is what happened to the police officer that so blatantly transgressed his authority and in fact committed a criminal offence?
Author: Sarel Hay
- Die Burger;
- Schedule 1 includes the following inter alia: Treason. Sedition. Public violence. Murder. Culpable homicide. Rape. Sexual assault, Trafficking in persons Bestiality. Robbery. Kidnapping. Childstealing. Assault, when a dangerous wound is inflicted. Arson. Malicious injury to property. Breaking or entering with intent to commit an offence. Theft, Receiving stolen property knowing it to have been stolen. Fraud. Forgery.
- Duncan v Minister of Law and Order 1986 (2) 805 (AD) at806-820.
- Minister of Safety and Security v Sekhoto (131/10) [2010] ZASCA 141;
v. (827/13) [2014] ZASCA 130; 2015 (1) SACR 597 (SCA)