Minister of Police v Gqamane

The respondent, Mr Gqamane, was arrested without a warrant on 17 February 2017 following a police raid. On 7 February 2017, Ms Mini (the complainant) with whom the respondent had a romantic relationship, lodged a complaint at Kwazakhele Police Station alleging that the respondent assaulted her on 4 or 5 February 2017 when she went to collect her lounge suite from his home. She was admitted to Dora Nginza Hospital for two days and treated for a broken arm. She alleged the respondent grabbed her from behind, hit her with his hands on her face and kicked her with booted feet. A charge of assault with intent to commit grievous bodily harm was recorded and the case docket was marked with a 'domestic violence' sticker. The docket was transferred to New Brighton police station on 14 February 2017 and assigned to Warrant Officer Erasmus. On 15 February, W/O Erasmus attempted to interview the complainant but she had returned to hospital, and he attempted but failed to obtain a J88 medical report. The respondent and complainant lived about 20 meters apart in disused classrooms at Old Lwandlekazi School. The respondent was detained over the weekend and released on the Monday at about 14h00 without a court appearance. In April 2017, the respondent instituted a claim for damages in the Regional Court, Port Elizabeth against the Minister of Police for unlawful arrest and detention, claiming R240,000 in damages.

• Whether the arrest without warrant was lawful in terms of sections 40(1)(b) and 40(1)(q) of the Criminal Procedure Act 51 of 1977
• Whether the arresting officer had a reasonable suspicion that the respondent had committed a Schedule 1 offence
• Whether the arresting officer properly exercised his discretion to arrest the respondent
• Whether a court on appeal can mero motu determine the issue of proper exercise of discretion to arrest based on evidence led at trial
• Whether in an action for damages for unlawful arrest, the plaintiff must discretely plead the failure to exercise the discretion to arrest
• Where the onus lies in proving the proper exercise of a discretion to arrest once jurisdictional requirements are established

The appeal was upheld with costs. The order of the high court was set aside and replaced with an order dismissing the appeal with costs. The appellant's request for costs of two counsel was refused.

The binding legal principles established are: (1) Once jurisdictional requirements for a warrantless arrest are established, the onus to prove improper exercise of discretion to arrest shifts to the party attacking the arrest (applying Sekhoto). (2) An arrest without a warrant is prima facie wrongful and the state must prove the lawfulness of the arrest by establishing jurisdictional requirements. (3) The improper exercise of discretion to arrest is a distinct issue from the jurisdictional requirements for arrest and must be specifically pleaded in the particulars of claim. (4) A court cannot mero motu decide an issue on appeal that was not pleaded and not fully canvassed by both parties at trial, even if it relates to the lawfulness of arrest. (5) The jurisdictional requirements for arrest are the same under sections 40(1)(b) and 40(1)(q) of the CPA - both require reasonable suspicion of commission of an offence with violence as an element. (6) The exercise of discretion to arrest must be judged on facts known at the time of arrest, not by hindsight or standards of perfection. (7) Section 40(1)(q) of the CPA, dealing with domestic violence arrests, does not require a pattern of recurrent violent behavior or immediate risk of harm - it affords maximum protection by not bounding the degree or extent of violence required.

The Court made several non-binding observations: (1) The danger of "litigation by ambush" and prejudice that arises from reasoning pertinent questions backwards based on hindsight became manifest in this case. (2) The high court failed to explain what aspects of evidence it accepted or rejected and the reasons for its conclusion that W/O Erasmus did not exercise his discretion, which would have assisted the SCA in determining whether the order was correct. (3) The criticism of the 12-day delay in effecting arrest was unfounded as on objective evidence, W/O Erasmus acted timeously after receiving the docket. (4) There is an important connection between arrests made pursuant to sections 40(1)(b) and 40(1)(q) of the CPA - both explicitly refer to offences involving violence as an element. (5) A crucial difference is that unlike section 40(1)(b), the degree or extent of violence referred to in section 40(1)(q) is not bounded, justifiably so to afford maximum protection intended by the Domestic Violence Act. (6) The Court noted that when the respondent's counsel was asked during cross-examination why he believed the arrest was unlawful, which might have brought the issue of discretion to the fore, counsel objected on grounds the respondent was a layperson and it was a question of law - thus the issue was not developed at trial.

This case is significant in South African law for clarifying several important principles: (1) It distinguishes between the onus to prove jurisdictional requirements for warrantless arrest (which rests on the state) and the onus to prove improper exercise of discretion to arrest (which rests on the party attacking the exercise of discretion). (2) It reinforces the principle that parties are bound by their pleadings and courts cannot decide issues not pleaded unless fully canvassed at trial. (3) It clarifies that the improper exercise of discretion to arrest must be specifically pleaded in actions for unlawful arrest and detention. (4) It provides guidance on how courts should approach the exercise of discretion in arrests under the Domestic Violence Act and Criminal Procedure Act. (5) It emphasizes that the exercise of discretion must be judged on facts known at the time, not by hindsight or standards of perfection. The case is particularly important for domestic violence arrests under section 40(1)(q) of the CPA, affirming that this provision is designed to afford maximum protection without requiring a pattern of recurrent violent behavior.