Court grants minister of police leave to appeal against unlawful arrest ruling

Minister of police Bheki Cele has applied for leave to appeal against a magistrate's court ruling which awarded Patrick Mvelo R200,000 for an unlawful arrest on the grounds that the late filing of the discovery affidavit was not malicious.

Mvelo claimed he was arrested on August 31 2019 in Kimberley without a warrant of arrest or any reasonable grounds on a charge of theft. He said he was kept behind bars until September 7 2019.

He had argued that the police did not have a case as the arrest was unlawful because the arresting officer did not have reasonable suspicion that the crime was committed and abused his powers by arresting him and that he was arbitrarily and without good cause deprived of his freedom.

Through his legal representative, Mvelo argued that Cele's appeal bid should be dismissed on the grounds that the minister's state attorneys did not file the discovery affidavit on file.

In addition, the arresting officer had no reasonable suspicion to apprehend Mvelo and did not need to conduct any further investigations.

In upholding the minister's leave to appeal and rescind the magistrate's judgment, acting judge Thandisa Tyuthuza said section 40(1)(b) of the Criminal Procedure Act permits an officer to arrest without a warrant.

In a previous case, the court held that an arrest must be based on specific facts and information and reasonable suspicion determined objectively.

“[Mvelo] seeks to argue that the arresting officer arrested him without obtaining evidence, and draws into question the reliability of the information received from the complainant. I am persuaded that the arresting officer has a reasonable suspicion and that in order to establish whether the respondent committed the offence, it is not required of the arresting officer to investigate the matter first before arresting the respondent. The Supreme Court of Appeal ... confirmed and ruled that the evidence or suspicion considered by the arresting officer need not be based on information that would subsequently be admissible in court of law,” Tyuthuza said.

In addition, Mvelo’s legal representative had raised new issues in the matter including that the minister had failed to comply with magistrate's court rules when providing security of costs, and that the application for a rescission of the decision of the magistrate's court was premature.

“These objections were not raised in the papers but were raised for the first time at the hearings and were only informally discussed with the [minister of police’s] representatives. These points ought to have been raised in the papers and prior to the date of hearing. In my view, entertaining them in this manner would have caused serious prejudice to the appellant.

Tyuthuza upheld the leave to appeal and the rescission was granted while Mvelo was ordered to pay the costs for the application

“The leave to appeal is upheld and the order of [the magistrates] court is set aside.

TimesLIVE