Abstract
In Mvu v Minister of Safety and Security the plaintiff, an inspector in the South African Police Service was arrested without a warrant for malicious damage to property (his 15-year old daughters’ cellphones). It transpired that the plaintiff, while on police business in Gauteng, visited his daughters. He became enraged when he discovered that they had received cellphones by way of a “love relationship”, whereupon he took the cellphones and threw them to the ground, seriously damaging them. The daughters went to apolice station and laid a charge against the plaintiff for malicious damage to property. The police officer seized with the matter telephoned the plaintiff who immediately travelled to meet him. Upon arrival he arrested the plaintiff and imprisoned him overnight with six other men and set him free the following afternoon on warning. When the matter eventually came to court, the plaintiff was discharged at the end of the state’s case.
Highlights
Facts In Mvu v Minister of Safety and Security the plaintiff, an inspector in the South African Police Service was arrested without a warrant for malicious damage to property
According to Willis J (88F-89F), the arrest was lawful because it complied with the provisions of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act of 1977 (the Act)”)
The court found (90F-91A) that the detention was unlawful, taking account of the principle that if the sentence likely to be imposed upon conviction in any case will be in the form of a fine or one other than imprisonment, it is highly undesirable that the accused person should be subjected to pre-trial detention
Summary
In Mvu v Minister of Safety and Security the plaintiff, an inspector in the South African Police Service was arrested without a warrant for malicious damage to property (his 15-year old daughters’ cellphones). In the present case it was most undesirable, taking account the plaintiff’s standing as a police officer (more long service and very respectable rank), his entirely cooperative attitude, and the circumstances relating to the commission of the alleged offence, that the plaintiff should have been detained at all, never mind kept for some 17 hours in a police cell with suspected rapists and robbers. Seen in this light, viewed objectively, the arresting officer should have applied his mind to avoid detaining the plaintiff and should have avoided detaining him.
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