Mdlalose and Another v Minister of Police and Another (11180 / 2014, 11181/2014) [2016] ZAWCHC 60; [2016] 4 All SA 950 (WCC) (19 May 2016)

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[2016] ZAWCHC 60
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Mdlalose and Another v Minister of Police and Another (11180 / 2014, 11181/2014) [2016] ZAWCHC 60; [2016] 4 All SA 950 (WCC) (19 May 2016)

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case No: 11180 /
2014
&
11181/2014
DATE:
19 MAY 2016
In
the matter between:
SANDILE
MDLALOSE
.....................................................................................................
First
Plaintiff
NKOSINATHI
DUH
NTULI
.........................................................................................
Second
Plaintiff
And
THE
MINISTER OF
POLICE
......................................................................................
First
Defendant
DIRECTOR
OF PUBLIC
PROSECUTIONS
..........................................................
Second
Defendant
Delivered
on:
19 May 2016
JUDGMENT
BOQWANA,
J
Introduction
[1]
The plaintiffs brought an action for
damages against the defendants on the basis that they were wrongfully
and unlawfully arrested,
unlawfully detained by the police and
maliciously prosecuted.
[2]
The two matters were brought under
separate case numbers, and consolidated by agreement between the
parties as the issues pertaining
to the action arose at the same time
involving the two plaintiffs. For the sake of convenience, Sandile
Mdlalose (‘Mdlalose’)
is cited as the first plaintiff
whilst Nkosinathi Ntuli (‘Ntuli’) is cited as the second
plaintiff.  The parties
agreed to separate the issue of merits
from the quantum and the matter accordingly proceeded on merits only.
[3]
It is common cause that the
plaintiffs were arrested on Tuesday 20 November 2012 by members of
the South African Police Service
acting within the course and scope
of their employment with the first defendant. They were subsequently
detained and charged with
house robbery which allegedly occurred on
19 November 2012 at approximately 22h00 in Montclair, Mitchells
Plain. They appeared
in court on 23 November 2012 and members of the
second defendant, also acting within the course and scope of their
employment with
the second defendant, decided to prosecute. The
plaintiffs remained in custody until 19 March 2013 when they were
released after
charges were withdrawn.
[4]
The defendants deny allegations of
wrongfulness and unlawfulness and allege that the arrest and
detention were carried out in terms
of s 40 (1) (b) of the Criminal
Procedure Act, 51 of 1977 (‘the
Criminal Procedure Act&rsquo
;)
and
s 50
(1) of the
Criminal Procedure Act, respectively
. They
further deny any malice in the prosecution of the plaintiffs,
alleging that the charges against the plaintiffs were withdrawn

provisionally pending further investigation.
[5]
The evidence led was quite extensive
and went on for a number of days. Closing argument was heard much
later owing to the parties
arranging for the transcription of the
record of proceedings.
[6]
Both plaintiffs testified. The first
plaintiff also called Nicky Ngcobo (‘Ngcobo’), who
allegedly resided at the same
premises as he did during the period of
the alleged house robbery in Montclair. The defendants called four
witnesses: Jerome Alliston
Malan (‘Malan’), Ivan Angus
Ryneveldt (‘Ryneveldt’), Deon Clive Phillip De Villiers
(‘De Villiers’),
all three were members of the first
defendant, and Natasha Lynn Simons (‘Simons’) who was a
member of the second defendant.
Evidence
Plaintiff’s
case
[7]
Mdlalose testified that during
November 2012 he was staying in Delft but could not recall the full
address of where he resided and
specifically the house number. He,
however, recalled that the address was in Blackgum Street. He lived
at the same address as Ngcobo
who had his own room in the same house.
[8]
Mdlalose had been in custody for an
unrelated matter and was released on 19 November 2012 at
approximately 16h00, having been detained
since October 2012. After
he was released by the Magistrates Court in Cape Town on 19 November
2012, he went back to his place
in Delft using a taxi.  He did
not have money for the taxi and only managed to get money at
approximately 18h15. He only arrived
home at approximately 19h00. On
his arrival, he encountered Ngcobo and informed him about his
whereabouts because Ngcobo did not
know about his incarceration. He
and Ngcobo then had something to eat, watched TV and went to bed. He
never left home until the
next morning, Tuesday 20 November 2012,
when he woke up and went to the barber shop, Luzuko, in Phillipi to
cut his hair. He was
due to appear in court in Strand later that day
but did not have money in order to take a taxi. At about 10h00 that
morning he
met his friend Ntuli whom he had not seen for a long time
and asked him for the money that he needed in order to go to court in

Strand. He definitely was not with Ntuli on 19 November 2012.
[9]
After telling Ntuli about his money
problem, Ntuli advised him that he did not have money and they then
went to Mandalay to visit
other friends where Ntuli was going to ask
for money. Upon their arrival in Mandalay, they found people drinking
and having meat
and they joined them. There were all together eight
men, including himself and Ntuli, at the house in Mandalay and about
six or
seven women.  Mdlalose did not drink because he was still
going to appear in court that day.  As they were busy enjoying

the braai and drinks, police came and pointed at them with firearms.
The police searched them but found nothing.  The police
then put
the eight men into the back of the police van and left the women
behind.
[10]
The eight men that were arrested
were taken to the Mitchell’s Plain police station and the time
was between 13h00 to 14h00.
They were already arrested at 15h00 in
the afternoon as depicted in the SAP 14 register.  They were not
told why they were
arrested.  On their arrival at the police
station they were taken into the cells.
[11]
The following day on Wednesday 21
November 2012, they heard the cell guard saying that ‘
these
are the robbers
’.  On
Thursday 22 November 2012, the investigating officer arrived and
asked all eight of them to stand in one line.
He took pictures of all
of them individually with a phone. The investigating officer then
left with the phone and told them that
those that were not pointed on
the photographs by the complainants would be released but those
pointed out would remain in custody.
[12]
The investigating officer came back
after 9 o’clock in the evening.  When he arrived he
pointed at Mdlalose and Ntuli
and told them to stand aside.  He
then informed them that the complainant pointed them as those that
had robbed him.
He released the six men that were arrested with
them whilst he and Ntuli remained in custody. They were then charged
and locked
in a cell by the investigating officer.  The
investigating officer told them that they were going to appear in
court in Mitchell’s
Plain on Friday.
[13]
On Friday 23 November 2012, they
appeared in Mitchell’s Plain court and the case was postponed.
He did not bring a bail
application because on the day he was
supposed to appear for bail he was informed that there was an
outstanding warrant for his
arrest for the case that he was supposed
to attend in Strand on 20 November 2012. He could not attend the case
in Strand because
he was arrested by the police on that day in
Mandalay. The case in Strand was finalised and he was found not
guilty and his co-accused
was convicted.  Due to him being
refused bail, he stayed in custody for about 4 months (i.e. from when
he was arrested on
20 November 2012 to 19 March 2013 when the case
was withdrawn).  He did not know why the case was withdrawn.
[14]
He informed the investigating
officer that he never met Ntuli on 19 November 2012 and he was not at
the scene of the crime in Montclair
on 19 November 2012 but instead
he was at home. Ngcobo who was with him could testify to that.
[15]
In cross-examination, he conceded
that he was not in custody at the time of the alleged robbery but
stated that he was at his house
in Delft.  He denied that he was
part of the robbery. He maintained that he had told the police that
he was not involved in
the robbery and he had an
alibi
even though his warning statement
stated that ‘
I was explained my
rights to remain silent and elected to exercise my right to remain
silent. I will appoint legal representation’
.
[16]
He further testified that he did not
get the money from Ntuli or the other people in Mandalay as the
police came whilst they were
still eating and whilst he was still
waiting. He did not know the address of the house in Mandalay. He did
not know anything about
items or cell phones confiscated by police in
Mandalay and that issue never arose in court (presumably during the
bail proceedings).
A phone was used to take photos and not a photo
album. He did not see why he could not get bail and remained in
custody for 4 months.
They were charged based on hearsay. The
investigating officers were supposed to investigate the matter before
they were charged
and not waste time by bringing them before court
without any evidence. There was, accordingly, no justice in having
him remain
in custody. He told the investigating officer about his
alibi
but
the investigating officer refused to go to the place where he said
that he was and to the person he said he was with and that
is the
reason why he decided that he would not make a statement and he would
only speak in court.
[17]
Ngcobo testified that during the
time of the incident he was staying with Mdlalose at number 29458
Blackgum Street in Delft. In
November 2012, Mdlalose arrived [at
home] between 6:00 and 7:00 in the evening. He did not know where he
was. Mdlalose explained
the cause of his absence for the period he
was not at home.  They then slept up until the next morning.
Ngcobo then left for
work.  He usually went to bed at 22h00.
The house they lived in had two bedrooms and he and Mdlalose slept in
separate
rooms.  The police never came to ask him about
Mdlalose’s whereabouts on 19 November 2012.
[18]
In cross-examination, Ngcobo
testified that he kept the keys for the house therefore Mdlalose
would not be able to get out of the
house in the evening. It would
also not have been possible for Mdlalose to exit the house through
the windows as the windows had
burglar bars.  He noticed that
Mdlalose did not have a key when he found him outside on the night he
arrived.  Ngcobo
was responsible for rent and food because he
brought Mdlalose to Cape Town. He considered number 24948 which was
alleged in the
particulars of claim as the address where he and
Mdlalose lived.
[19]
Ntuli testified that on 20 November
2012 at approximately 10 o’clock in the morning he met Mdlalose
whom he had not seen for
a month.   They were happy to see
each other.  He got Mdlalose to get into his vehicle and they
went to Mandalay.
On their way there Mdlalose told him
about the money that he needed and about the case that he had been
arrested for.
They enjoyed themselves in Mandalay for two hours
after which the police arrived.  The police put all the eight
men that were
in the house in a police van and left the three women
behind.  Whilst they were in detention, on that same day, they
overheard
the cell guard that was walking up and down saying that
they were robbers.  It was not clear to them what robbery the
cell
guard was talking about. They remained in custody for Tuesday,
Wednesday and on Thursday noon during the day a certain man arrived

and took pictures of the eight of them whilst they were standing one
by one using a phone.  This man told them that he will
release
those who were not involved in the crime.  The pictures were
taken at close proximity. When the man finished taking
pictures he
left.  All eight of them were African males.  This man came
back at 9 o’clock [in the evening] and
took him and Mdlalose
aside.  He told them that the two of them were pointed by the
people that were robbed. He charged them
and released the others. He
told them that he was charging them for the robbery that happened in
Montclair but he did not tell
them exactly where this robbery took
place in Montclair. This man (who turned out to be the investigating
officer) asked him if
he wanted to make a statement but he never
forced him.  He told the investigating officer that he had proof
that he did not
know anything about the incident.  The
investigating officer wrote something down but he did not know what
it is that he wrote.
It was a long time ago but he could see
that the signature that appeared on the warning statement was his.
When they appeared
in Court on 23 November 2012, the matter was
postponed for 7 days.  Mdlalose was told that he had a warrant
issued against
him and that Ntuli was the only one who could apply
for bail.  He told the court (at the bail proceedings) that he
was not
at the scene of the crime and that he had an
alibi
when this incident happened.
[20]
He testified that he knew nothing
about the items that were confiscated at a house in Mandalay. He had
never seen them and he did
not want to lie.  He did not reside
at those premises and he was not charged in relation to those items
but for robbery. The
person that could give the
alibi
was his girlfriend but he did not tell the police about the
girlfriend being the
alibi
witness. He was released in March having been arrested in November.
[21]
In cross-examination  he
testified that the investigating officer did not ask him what type of
alibi
he
was talking about and that it was the duty of the investigating
officer to find out himself (so that he could investigate).
He
confirmed that the signature on the warning statement that recorded
that he exercised his right to remain silent and that he
would speak
in court, was his. He saw that the investigating officer was not
interested in what he was telling him regarding the
alibi
.
The investigating officer told him about his legal rights. He told
the investigating officer that he did not want to make a statement.

The
alibi
was
not mentioned during the bail application possibly because at that
stage the lawyer was simply asking for bail.  When one
looked at
the photographs one could not tell whether a person was shorter or
taller as the photographs were taken from the waist
up.  He was
informed by the Magistrate that he could not be given bail because
the case (he was charged with) was serious.
When he went back
to court in March, the Magistrate told him that the case was
withdrawn but he never explained anything again
about the seriousness
of the case.  He doubted that the case was provisionally
withdrawn and that it would be reinstated if
the complainant
resurfaced. According to him, complainants could easily be contacted
as one did not require a passport to travel
from Gauteng.
Defendant’s
case
[22]
Ryneveldt testified that he is
detective sergeant stationed at Lentegeur police station and has been
a police officer for 11 years.
On 19 November 2012, he was on
stand-by duty for serious and violent crimes in Mitchell’s
Plain. When he received a phone
call at approximately 22h30 in the
evening informing him of a house robbery that took place in
Montclair. He arrived at the scene
at 23h00 and was addressed by
Sergeant Leibrand who was the first member on the scene and Constable
Booysen. He then saw the complainant,
Sifiso Tshabalala
(‘Tshabalala’) and about six other people who were in the
house.  These people were visibly
traumatised, they could hardly
speak and they were shocked by what happened. There was liquor in the
house but he did not know
if they were intoxicated. He could see that
they were shaking. He was told that three males appeared with
firearms and pointed
at all the occupants of the house and robbed
them of cell phones, bank cards, ID Books and a motor vehicle.
[23]
He managed the scene and called all
the role-players. After that he started to task his informer and told
him that he was looking
for information regarding what happened in
the house robbery that night. He also told him that there were three
males that were
involved that robbed the complainant and tenants
pointing firearms at them. At that time the photographer and the
fingerprint expert
arrived. He then briefed the street committee and
the neighbourhood watch about what happened so he could get
information about
the alleged suspects.
[24]
The docket was completed by the
first SAPS member on the scene but he (Ryneveldt) took charge of the
docket and a case under Mitchell’s
Plain CAS 20137/11/2012 was
registered. On 20 November, the next day after 14h00, the docket was
referred to the detectives for
further investigation. After 14h00 he
received information from the informer that he had relevant
information that the suspects
that were involved in the house robbery
were possibly at a house in Mandalay. He could not disclose the
identity of the informer
as it would jeopardise the investigation.
[25]
He then consulted his senior that
day and they got the technical response team (‘TRT’) from
Mitchell’s Plain to
go ahead and safeguard the scene. This was
because firearms had been used in the robbery and they were not sure
what the situation
was in the current house. He and De Villiers
proceeded to the house after TRT had taken control of the scene. At
the house they
found eight black males in the lounge. He started to
write down the information about what he saw in front of him. De
Villiers
addressed the people in the house. He noticed that the
informer was among the people in the house. He could not speak to him
because
he did not want to expose his identity. He was told by De
Villiers that they found cell phones, bank cards and identity
documents
for which the people in the house could not explain
ownership. Because there were three suspects mentioned in respect of
the robbery
that happened the night before, they arrested all eight
males that were found in the house. The eight males were all arrested
because
he could not speak to the informer at the time. They took
them to the Mitchell’s Plain police station for questioning and

to ascertain identification by the witnesses. He was not part of the
photo parade. The investigation was given to Malan. He made
entries
in the investigation diary regarding the role he played.
[26]
In cross examination he testified
that he could not smell liquor on Tshabalala.  Tshabalala was
also shocked but was able to
speak to him than anybody else.  He
called the photographer at the scene of the house robbery because a
serious offence was
committed. He does not know what happened to
those photographs because he is not an investigating officer in the
matter. The informer
told him that he must act fast because the
people he was with in the house spoke about bank cards that were
taken the night before.
He could not recall if he asked who those
cards belonged to. What he was told by the informer could not have
been a coincidence.
He took the description of the suspects from
Tshabalala. He effected the arrest at 15h00. The informer was among
the eight men
that were detained. The informer did not bring him any
further information at a later stage.  When asked why he
arrested people
without establishing who the items found belonged to,
he stated that De Villiers told him that he found the items and that
they
should proceed to arrest. De Villiers was his superior and had
to give him instructions. He was not at the bail application hearing.

He was challenged as to why he only made an entry in the
investigation diary that all witnesses were intoxicated but only
mentioned
in court that they were traumatised. He stated that he
forgot to make an entry. He made no entry that there was an informer
but
told Malan, the investigating officer who took the matter over.
The informer was not in the house robbery scene in Montclair and
did
not see the suspects, he was just told about the kind of property
that was stolen. When the informer returned with information
the next
day it was protocol to follow up on that information. Once the case
was passed on to Malan, he (Ryneveldt) was not involved.
[27]
De Villiers testified that he is a
warrant officer in the SAPS stationed at Lentegeur Police Station
with 30 years’ experience.
During 2012 he was stationed at
Mitchell’s Plain. On 20 November 2012, he was in his office and
after 14h00 Constable Ryneveldt
came to his office and informed him
that he had received information from his informer about suspects
that were allegedly involved
in a house robbery that took place the
previous evening. Ryneveldt informed him that they needed to act as a
matter of urgency
because his informer was with the alleged suspects
at the premises and he did not know how long they were going to be at
those
premises. He contacted the TRT unit to secure and make the area
safe as the alleged suspects could be armed.  The TRT commander

indicated to him and Ryneveldt that the premises were safe and that
they may enter. De Villiers and Ryneveldt noticed a member
of
TRTguarding two female persons outside. When they entered the house
they found that there were eight male persons lying down
on the floor
with a TRT person guarding them. According to the procedures, the TRT
will neither collect nor search anything from
the premises. Their
primary duty was to secure the premises. Ryneveldt was the
investigating officer in charge of the premises.
De Villiers noticed
phones on the table and on the floor next to the table. He asked the
men that were lying on the floor who the
owner of the house was. No
one indicated that they were the owner but there was one person who
indicated that he resided in those
premises. He asked that person
about the phones and everything that was lying on the ground and on
the table. The said person could
not tell where the phones and other
articles came from. He then told this person to bring all the items
to him so he could place
them in a sealed bag until he could tell him
whom the phones belonged to. This person brought the items to him
accompanied by a
TRT member.  He kept all the items because
Ryneveldt was busy talking to people on the ground. As he was asking
the resident
of the house about the items, none of the people on the
ground stood up and claimed ownership of the phones because he could
recall
that the people on the ground still had their personal items
on them. He did not confiscate those from them. Altogether the items

found were 9 cell phones, identity documents, bank cards and three
registration papers of three different vehicles. There was also
a set
of video tapes which was on the couch. When Ryneveldt finished
interviewing people on the floor De Villiers instructed that
they
search the premises. They searched premises with the permission of
the person who resided there. They found nothing incriminating
from
the search. Ryneveldt informed him that they had enough evidence to
arrest the people and take them to the police station
for questioning
as they could possibly have been involved in the house robbery of the
night before. The eight males were then arrested
and the two females
left behind because according to Ryneveldt they had nothing to do
with the house robbery in Montclair.  He
kept the confiscated
items until they were collected by the investigating officer. He
wrote a statement and gave it to Malan with
the items.
[28]
In cross examination, De Villiers
testified that Ryneveldt took the decision to arrest because that was
his prime function. He conceded
that Ryneveldt was wrong when he said
that he (De Villiers) gave an instruction to Ryneveldt to arrest.
According to him, Ryneveldt
was present when the items were
discovered. He disputed Ryneveldt’s evidence that he did not
know how the items were found.
According to him, Ryneveldt was moving
around talking to those that were lying on the ground. He would also
have arrested the people
if he was the one to make that call because
there were reasonable grounds to do so. If he had to establish a link
between the items
and the suspects, he would take the items to the
complainants to identify them and arrange for an ID parade. Steps
would then be
taken to release the suspects within 48 hours if there
was no positive linkage. He would not know if the alleged suspects
were
instructed to put their cell phones on the table by members of
the TRT but he knew that TRT are instructed not to search anyone
but
to simply secure the area. They did not take personal property of the
suspects. He did not ask the TRT members how the scene
was when they
found it, i.e. whether there were phones on the table or how those
items landed on the table. He however conceded
that the TRT members
had to check if the alleged suspects had firearms or sharp items in
their possession. If they were instructed
by TRT to put their
personal items down, he would have expected their wallets to be there
also but there were no wallets. The person
arresting someone should
prepare a statement so that the investigating officer could see how
the person was arrested. He would
never approve that people are
arrested without a statement. He did not know if the men lying on the
floor had cell phones despite
those on the table. He conceded that
there would be no reason to arrest people that were outside the
house. He was confronted with
a contradiction between his testimony
and his written statement where he mentioned that there were six men
in the house and two
other people outside. He retorted that the
statement could be incorrect.  He stated that the two persons
that were outside
were females that he ordered to be brought inside.
The second discrepancy in the statement was that there were two
females inside
the house. He attributed that to a mistake. He did not
read his statement after he had typed it because he was confident
that it
was correct. He agreed that before a person can be arrested,
he must ask that person about where the object was obtained; if the

person is unable to give a response then he can be arrested. He
agreed that he only spoke to the person who resided in the house
but
was expecting those that were lying on the floor, including the
plaintiffs, to react and say something about the stolen products
but
they failed to give a satisfactory answer. He conceded that he did
not talk to the plaintiffs but stated that he spoke to the
group. He
was upset when Malan collected the exhibits after two days because
they were lying in his cupboard. He did not think
about the people
that were arrested. The suspects were arrested for possession of
suspected stolen property but he did not think
they were charged for
that. He did not keep the exhibits for any cynical reason. He was
available but the investigating officer
did not come to collect it.
[29]
Malan testified that he is a warrant
officer at the South African Police Services. During 2012 he was
stationed at Mitchell’s
Plain police station. On 20 November
2012 at about 14h00 he was informed by Captain Petersen, his
commander, that he should investigate
a case under Mitchell’s
Plain CAS 2037/11/2012. The case concerned a house robbery that took
place in Mandalay (sic) at 4
Camelia Street on 19 November 2012, the
evening where the victims were robbed with firearms and had items
taken from them. He established
from a statement made by one of the
victims, Tshabalala, that there were seven victims involved. This
statement (‘Tshabalala’s
A1 statement’) was taken
by a police officer when the case was reported. From it he also
established that cell-phones, wallets,
cash, bank cards inside the
wallets and a motor vehicle which was parked outside the house, were
taken by the robbers. In the Tshabalala’s
A1 statement it is
recorded that the victims were attacked by three black males and some
of the victims sustained injuries.
[30]
Malan went to visit the victims in
order to interview them. They were not at the house where the
incident occurred but at their
workplace known as IPSOS in Constantia
where they were busy with a certain project. He visited IPSOS on that
same afternoon of
20 November 2012. By that time he had been informed
that there were already eight suspects in custody but he had to deal
with the
victims first. He was not involved in the arrest of the
victims and was not at the scene of arrest.  At IPSOS he was
told
by the manager, Trudy, that the victims had been under
counselling treatment because of their state. They were so emotional
that
it was impossible for him to speak to them. He arranged to go
back the next day, i.e. on 21 November 2012.
[31]
After he could not interview the
victims due to their alleged emotional state, Malan went to the
Mitchell’s Plain’s
police cells still on 20 November 2012
and questioned the eight suspects. None of them could give him
information about the incident.
He then informed them that he had to
do a photo parade because the witnesses were not able to attend the
identification parade
as they were busy with a counselling programme.
It was not possible to get them to the police station and he
therefore asked to
take the suspects’ photographs for a photo
parade he planned to have on 22 November 2012 with the victims. He
took eight
photographs, one of each of the eight suspects, and loaded
them on a photo file on the laptop and prepared them for the victims.

He compiled an album which was a mixture of photographs of Coloured
and African males because the description of the suspects was
two
African males and one coloured male. The photographs were arranged in
a form of a slide show, which would show photos one by
one.  He
took the laptop to IPSOS. When he got there, he first took statements
from two witnesses who could communicate, Kedumetse
Sima and
Nokuthula Mavuso in an office that was available at IPSOS. He had
three victims to work with, including Tshabalala whose
statement he
already had. He managed to obtain a list of all items that were taken
from the victims during the robbery.
[32]
He then proceeded with the photo
parade in the same office where he showed the photos individually to
the three witnesses that were
available. He interviewed one witness
at a time whilst other witnesses waited and sat outside in another
office. The facilitation
was done at his request to the team leader
of the premises. All three witnesses pointed Ntuli and Mdlalose’s
photos as the
men that went into their house and robbed them. This
was done in the absence of the others and it took a while for them to
look
at the photos and to point out the suspects.
[33]
After the pointing out, he called
Tshabalala again and took a photo pointing out statement from him. He
could not take pointing
out statements from the two other witnesses
because they were taken back to the counselling programme.
[34]
He then went to the police cells to
sort out the eight people that were in detention. He informed them
that six were going to be
released and the two that were pointed out
on the photographs would be charged for house robbery. He released
the six men and started
interviewing the plaintiffs. He started with
Ntuli. He explained his rights and took a warning statement. Ntuli
indicated that
he was not going to give a statement and will exercise
his right to remain silent. It was the first time hearing that Ntuli
had
an
alibi
.
Ntuli denied that he was involved in the house robbery. He then
interviewed Mdlalose and followed the same process as he did with

Ntuli. Mdlalose also indicated that he will remain silent and will
speak in court. He denied that Mdlalose gave him an
alibi
.
According to him, the two plaintiffs were upset at the time of the
interview; they started speaking in Xhosa to each other. When
he
asked them what their decision was they told him that they would
speak in court. When asked to clarify this issue by Mr Godla
who
represented the first plaintiff, Malan changed his earlier testimony
by stating that the two were talking to him in Xhosa and
he told them
that he did not understand any African language. The interview was
done in English and they answered in English. The
two plaintiffs
signed the statements. He then took fingerprints and officially
charged them. At 15h30 of 22 November 2012, he went
to the
prosecutor, the prosecutor advised that the two accused be enrolled
in the morning of 23 November 2012 because the courts
were already
closed and the magistrate had already left. He then assumed that they
could not get another case on the court roll.
The two plaintiffs then
appeared in court on 23 November 2012. He recommended that the case
be postponed for seven days for bail
information which includes
obtaining the profile of the accused as to whether there were any
outstanding or pending warrants of
arrests, cases and convictions.
His recommendation to the prosecutor was to oppose bail. He was
absent from work because he was
hospitalised after the first
appearance. The bail application was on 11 December 2012. He went off
sick again and made an entry
on 20 December 2012 after the bail
application had occurred. He was not able to attend the bail
application. Charges against the
plaintiffs were withdrawn on 19
March 2013. He returned to work on 11 March 2013. When he had to
follow up on the outstanding queries,
he had to trace witnesses to
finalise the investigation. He made an entry on that date that ‘
all
witnesses relocated to Soweto, Johannesburg for the same company;
outstanding investigations not finalised
’.
The matter was postponed to certain dates for the investigation to be
completed. He was not at work for long periods of
time and somehow
the investigation was not finalised. Fingerprints from the crime
scene still needed to be taken, statements from
the rest of the
witnesses, tracing of stolen property and photos of the crime scene
were all still outstanding. Witnesses were
not available to finalise
the investigation. He could not get information from the company in
Constantia and had to go back to
court and ask for another
postponement which was not granted. The case was withdrawn
provisionally until the investigation was
finalised. The case was
transferred to Lentegeur Police Station and he was not involved in
the case from that moment forward.
[35]
He further testified that he did not
ask the plaintiffs if they wanted an interpreter as they were willing
to speak English. The
interpreter was not available. He conceded that
he did not record that. The plaintiffs started speaking in Xhosa when
he was explaining
their constitutional rights to them. He informed
the prosecutor that the plaintiffs were arrested around 15h00 on 20
November 2012.
He mentioned that he could have been wrong by stating
that he received the docket at 14h00 when the suspects were already
in the
cells. He, as an investigating officer, could conduct a photo
parade because it was informal. Formal parades are done by a person

who is not investigating the case. The plaintiffs were arrested for
questioning in connection with house robbery and he was not
there
when they were arrested. He denied that they were arrested for being
in possession of stolen property. He conceded that the
two suspects
were linked to the robbery after the photo parade. He denied that the
plaintiffs told him they had an
alibi
.
[36]
He was not present during the bail
application to rectify the mistakes made by the prosecutor because by
then he had the A1 statement,
two witness statements and the photo
parade statement, the prosecutor was therefore wrong to say only the
A1 statement was in the
docket during the bail proceedings. No one
else proceeded on the docket in his absence. He has no authority to
reallocate matters
to other investigation officers. Captain Petersen
was supposed to do that. He repeated in re-examination that he
conducted an ‘informal’
photo parade because of the
victim’s condition and that he had only 48 hours and in the
time he had it was the only option.
It was the first time he had done
a photo parade after arresting suspects. He could not have done the
parade on the machine at
the office.
[37]
Natasha Lynn Simons (‘Simons’)
testified that she is a Regional Court control prosecutor at
Mitchell’s Plain.
She has been a public prosecutor for 14
years. On 23 November 2012 she was on duty. This matter was referred
to her because she
dealt with serious matters.  When she
received the docket it contained mostly witness statements,
description of identification
statements, Malan’s statement
detailing a brief overview of what he had done, photographs of two
suspects, warning statements
and bail information. All this
information was available at the first appearance of the suspects.
Having been presented with those
facts, her decision was that the
contents contained in the docket amounted to a
prima
facie
case and she enrolled it for 23
November 2012. Her reasoning for this  was that there were three
complainant statements that
referred to an incident that occurred on
19 November 2012,  a photo album was shown to them, and they
clearly identified the
two plaintiffs and so that amounted to a
prima
facie
case of house  robbery or
robbery with aggravating circumstances. She entered queries in the
docket to the investigating officer.
First, it was for him to specify
how the witnesses were taken through the photo album. Second,
according to her what was done was
not a photo ID but witnesses were
just taken through a photo album. She also wanted to know if
fingerprints were taken at the scene
where the robbery took place.
She also stated that outstanding statements had to be obtained from
all the witnesses as only three
were taken, whereas those who were in
the house were allegedly six. Stolen property needed to be traced and
she also wanted to
know if photographs of the scene were taken. She
wanted to know the connection between the alleged stolen items which
were found
at a certain place and the incident that occurred on 19
November 2012 and whether the stolen items had been recovered. She
also
wanted a report of the request made that the exhibits were sent
for forensic analysis as mentioned in De Villiers’ statement.

She enquired whether neighbours saw or heard anything and for the
three or four outstanding witnesses to be taken on an ID parade
with
the two suspects.
[38]
She testified that the fact that
there was no match between the items found in Mandalay and those
allegedly taken during the robbery
did not affect her conclusion that
there was a
prima facie
case because three witnesses went through a photo album and
identified the two suspects. Identifying the stolen items at the
later
stage would have just been additional evidence. As regards
bail, it is a norm in Mitchell’s Plain to oppose bail as soon
as they are dealing with a schedule 6 offence. In this instance, the
accused must show that there are exceptional circumstances
that
warranted his release. She was of the opinion that bail should be
opposed because of the nature of the offence. She did not
appear in
court personally to prosecute the matter in court. She was taken
through the contents of the court file and hand written
notes made by
the magistrate. She stated that she was familiar with the
magistrate’s handwriting having worked with him for
a long
time. It appears on the document on file that on 23 November 2012
prosecution was conducted by the district court prosecutor,
Ms T
Sambo. Both accused were represented by Adv Vallie. The matter was
postponed for bail information until 28 November 2012.
The accused
were remanded into custody. On 28 November 2012, the accused appeared
via
an
audio visual link from Pollsmoor prison. There was no need for them
to come to court as the matter was going to be postponed.
The
prosecutor on that day was Mr Gontsana and Mr Davies represented both
accused. The defence had no objection to postponement
for a bail
application. The matter was postponed to 11 December 2012. On that
date, the accused appeared in court. The court refused
bail for
accused 1, i.e. Ntuli. The case was postponed in respect of accused
2, Mdlalose, for further investigation. The matter
was then postponed
to 22 January 2013 and both accused remained in custody. On 22
January 2013, the plaintiffs again appeared in
court. Mr Davies
withdrew as attorney for Ntuli but continued to appear on behalf of
Mdlalose.  Mr Mqela took over as Ntuli’s
attorney. Mr
Davies informed the court that Mdlalose was abandoning his bail
application. The prosecutor requested a postponement
as the witness
statements; photographs from the scene and the fingerprint expert
report were all outstanding.  The matter
was postponed for
further investigation to 19 March 2013 with the accused being
remanded into custody. On 19 March 2013, both accused
were
represented by Mr Dunga. The case was withdrawn on that day.
[39]
Simons made the decision to withdraw
the case although there was still a
prima
facie
case of robbery. She did this
because the investigating officer, Malan made an entry on 11 March
2013 that all the witnesses had
relocated to Soweto, Johannesburg.
They all worked for the same company and the investigation was still
not finalised. She formed
a view that, although there was a
prima
facie
case, it would not be in the
interests of justice to keep the plaintiffs in custody since November
2012, if the witnesses were
still being traced. The matter was
characterised as provisionally withdrawn because it could be
reinstituted if witnesses were
found and consultations done with
them. She was not informed about the plaintiffs’ contention
that they were kept in custody
for more than 48 hours before their
first appearance. The document containing information about the
arrest, which is the document
she had, stated that they were arrested
at 16h00 on 20 November 2012. According to her understanding if the
48 hours  expire
outside normal court hours or on a day that is
not a normal court day, the accused must be brought on the first
available court
day. Therefore, because 48 hours expired at 16h00 on
22 November 2012, the accused had to be brought in court on 23
November 2012.
It has happened before that if the defence disagreed
with the assessment of the time; the matter would be brought before
the magistrate
who would decide to keep the matter on the roll or
strike it from the roll. It did not look like the defence brought any
complaint
before the magistrate that the plaintiffs were kept in
custody beyond the 48 hour requirement.
[40]
In cross examination, Simons
confirmed that the decision of whether to oppose bail is that of the
state. She only became aware of
the docket on 23 November 2012. She
bears no knowledge of Malan having gone to the prosecutor after 15h00
on 22 November 2012 and
was told to come back the following day. On
the facts put to her, if the suspects were arrested on 20 November at
14h00 and Malan
had come to her around 15h00 on 22 November 2012, she
would have said they must be released because the time had expired.
[41]
She did not have regard to the
‘description of suspect’ document in coming to her
decision that there was a
prima facie
case because she had witnesses that went through a photo album and
pointed out people. The question was put to her that the two

description documents referred to slender people as being robbers
whereas one of the robbers was said to be short and fat in the

witness statements, her response was that it must be taken into
account that the documents lacked the description of a third suspect

because there were three alleged robbers on the day in question.
Witnesses would normally go through a photo album if they did
not
know the name of the suspect. They would point the person out who
would be arrested by the police. According to her, there
is nothing
wrong with people being shown a photo album, that is why she asked
the investigation officer to give her a more detailed
statement as to
whether the witnesses were sitting separately, how many photos they
went through and all photos they went through
needed to be placed in
the docket and not only those of the two accused. She was satisfied
with the manner in which the plaintiffs
were identified. Her decision
was only based on the fact that they were pointed out. One can take a
prima facie
case to trial and not win it. The reason she wanted further clarity
from the investigating officer was to prepare for trial because
those
are the points the defence would attack,  and not to ascertain
whether or not the description might be incorrect or
inaccurate. She
would have clarified with witnesses when consulting with them the
meaning of the statement: ‘
Detective
Malan showed me photos of both African males and coloured males on
the laptop. I paged through the photo album and identified
the same
two African males on the photo album’.
According to her, the sentence should be read to mean the witness was
shown photos of both African and coloured males. Not just
of the two
plaintiffs and further the witness is an African lady with English
most likely not being her first language, therefore,
when she read
the second part of the statement, it should be interpreted to mean
she identified the two African males that robbed
her, the same two,
that is how she understood it. The witness did not identify the
coloured person hence the statement is silent
about identification of
a coloured person.
[42]
Simons was adamant that conviction
could be secured just on the basis of the photo album pointing out.
She did not get any response
about her queries from Malan.  She
discovered that the docket did not go back to the police, and so they
did not see the queries
that she made in the investigation diary. It
is indicated in the docket that it stayed in court so Malan could not
respond to her
queries. She only discovered that the docket did not
go to back to Malan on 10 December. There is an entry made by Malan
on 7 December
2012 which is an indication that at some stage he did
get the docket. She was not concerned at that stage that Malan had
not complied
with her request because the case was at the bail
proceedings stage and not at the trial stage and the state also had a
prima facie
case. Simons’ unanswered queries at that stage would not have
any bearing on the court proceedings. She saw the docket again
on 19
March 2013, when she noted Malan’s entry about relocation of
witnesses. She knew her questions would not be answered
by then and
felt it was in the interests of justice to provisionally withdraw the
case. If she did not care about other people,
as it was put to her,
she would have just asked for a postponement and allow the police to
investigate while the accused were in
custody. Further, the
plaintiffs applied for bail which was denied by the court based on
the facts before it. They were legally
represented.
[43]
If the prosecutors were made aware
that 48 hours had expired they would not have accepted the docket.
Also, if she knew about the
alleged
alibi
,
such as, if it was indicated in the warning statement or
investigation diary, she would have had that followed up so that she

could have a view of both sides of the spectrum before a decision to
proceed was made. She conceded, when a question was put to
her, that
it did not appear that the investigating officers gave her all the
information based on the questions put to her about
their evidence in
court.
[44]
She testified that the plaintiffs
were legally represented at all relevant times. Their legal
representatives could have made representations
to the prosecution
team regarding their allegations that they could not have committed
the offences and of their alleged
alibis
.
That information would have been put to the state witnesses and be
considered by the state. That is the normal procedure of resolving

matters even in Mitchell’s Plain. The plaintiffs in this matter
did not do that.
Issues to be
determined
[45]
The issue to be determined is
whether the arrest of the plaintiffs and further detention were
lawful and whether their prosecution
was malicious. Key to the
determination is whether the police officers acted within the bounds
of
ss 40
(1) (b) and
50
(1) of the
Criminal Procedure Act, and
whether the plaintiffs meet the threshold set for malicious
prosecution to be proved.
[46]
Mr Sidaki argued that the claims for
deprivation of liberty, discomfort, loss of dignity, shock and
contumelia
were abandoned by the plaintiffs. He further submitted that the first
plaintiff had abandoned his case for malicious prosecution.
I
disagree with Mr Sidaki on this point. The plaintiffs’ claims
are three-pronged:  unlawful arrest, unlawful detention
and
malicious prosecution. Those were pleaded and evidence was led in
respect of all three by the plaintiffs. The tabulated damages
of
deprivation of liberty, discomfort, loss of dignity, shock and
contumelia
form part of the three broad claims.
[47]
The defendants have also raised an
issue of non-joinder of the Magistrate in his official capacity or
the Minister of Justice and
Correctional Services on the basis that
the plaintiffs were refused bail by the Magistrate and were remanded
in custody on the
strength of the Magistrate’s orders.
Evaluation
The lawfulness
of the arrest
[48]
Police officers often have to act
swiftly whenever crime is committed. At times they are called upon to
arrest suspects without
being in possession of a warrant of arrest.
There are, however, parameters that have been created by the
legislature within which
arresting officers are required to act.
Section 40
(1) (b) of the
Criminal Procedure Act, which
is the
subject of this case is one such provision. The requirements laid
down in
s 40
(1) (b) of the
Criminal Procedure Act have
been
discussed in numerous cases.  The relevant section provides as
follows:
‘
40
Arrest by peace officer without warrant
(1)
A peace officer may without a
warrant arrest any person-
…
(b)
whom he reasonably suspects of having committed an offence referred
in Schedule 1, other than the offence of escaping from lawful

custody.’
[49]
It is indeed the duty of the peace
officers to ensure that those suspected of committing crimes against
society are brought to justice.
It sometimes becomes exigent to
strike while the iron is hot in certain situations. Prompt action
becomes necessary when an opportunity
to catch suspects who have
committed serious crimes may be lost and the police might later be
blamed for not taking action when
information relating to the
suspects was given by members of the community. A balance is,
however, required in that a police officer
should keep an open mind
and be alive to the possibility that the information he or she may
have may not be sufficient to meet
the requirements set by law as to
when an arrest without a warrant can be effected. This open
mindedness is important because of
the jealously guarded liberty of a
person by our law and the Constitution. As Van Dijkhorst J put it in
Duncan v Minister of law and Order
1984 (3) SA 460
(T) at 466D-F:
‘
The
power of arrest without a warrant is valuable means of protecting the
community. It should not be rendered impotent by judicial

encrustations not intended by the Legislature. On the other hand the
law is jealous of the liberty of the subject and the police
in
exercising this power must be anxious to avoid mistaking the innocent
for the guilty. They often have to act on the spur of
the moment with
scant time to reflect, but they should keep an open mind and take
notice of every relevant circumstance pointing
either to innocence or
guilt.’
[50]
Section
12 of the Constitution
[1]
guarantees everyone the right to freedom and security including the
right not to be deprived of freedom arbitrarily or without
just cause
and not to be detained without trial.
[2]
In
Minister
of Safety and Security v Van Niekerk
2008 (1) SACR 56
(CC);
2007 (10) BCLR 1102
it was held at paras 17
and 20 that:
[51]
‘…
the constitutionality
of an arrest will almost invariably be heavily dependent on its
factual circumstances… it would not
be desirable for this
court to attempt in an  abstract way divorced from the facts of
this case, to articulate a blanket,
all-purpose
test for constitutionally acceptable arrests.’   It
is trite that arrest without a warrant would be
justified if the
following jurisdictional facts are present:
a)
The arresting officer is a police officer;
b)
He or she entertains a suspicion;
c)
The person so arrested must be suspected to
have been committing a Schedule 1 offence;
d)
The
suspicion must be based on reasonable grounds.
[3]
[52]
Once
the jurisdictional requirements set out above are present, the peace
officer may invoke the power conferred on him or her by
s 40 (1) (b)
and arrest the suspect. The peace officer thus has a discretion
whether to arrest a suspect once the defined jurisdictional

prerequisites are present. Put differently, the officer is not
obliged to arrest.  That view was emphasized in
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367
(SCA) at para [28]. In
Duncan
(1986)
[4]
supra at 818 I, the court held that the grounds upon which an
exercise of such a discretion can be questioned are narrowly
circumscribed.
It further stated that ‘
an
exercise of the discretion in question will be clearly unlawful if
the arrestor knowingly invokes the power to arrest for a purpose
not
contemplated by the Legislator
.
But
in such a case, as is generally the rule where the exercise of a
discretion is questioned, the onus to establish the improper
object
of the arrestor will rest on the arrestee
…’
[5]
It further held that the purpose of the arrest must be to bring the
person so arrested before court.
[6]
[53]
It
is now also established that the onus to prove the lawfulness of the
arrest lies with the arrestor, in this case the first defendant.
[7]
This is so because ‘[
a
]
n
arrest constitutes an interference with the liberty of the individual
concerned, and
it
therefore seems to be fair and just to require that the person who
arrested or caused the arrest of another person should bear
the onus
of proving that his action was justified in law
.’
[8]
(Underlined for emphasis)
[54]
The
test on whether the peace officer reasonably suspects a person to
have committed an offence is an objective one. The test as
succinctly
put by Zondi J (as he then was) in
Mawu
& Another v Minister of Police
2015
(2) SACR 14
(WCC)  at para 22, ‘…
is
not whether a police officer believes that he has reason to suspect,
but whether, on an objective approach, he in fact has reasonable

grounds for his suspicion
.’
Ultimately, the question is whether any reasonable person, confronted
with the same set of facts as the arresting officer
in this case,
would form a suspicion that a person has committed a Schedule 1
offence.
[9]
[55]
It is not in dispute in this case
that the arresting officer was a police officer acting within the
course and scope of his employment
with the first defendant. The
question that arises is whether the arresting officer formed a
suspicion that a Schedule 1 offence
was committed, which suspicion
rested on reasonable grounds, before effecting the arrest. The
plaintiffs contend that he did not.
[56]
In advancing their argument on this
point,
the plaintiffs’ attorneys, Mr
Godla and Ms Mziba, who represented plaintiffs 1 and 2 respectively,
referred me to the unreported
decision of
Mbotya
v Minister of Police
(1122/10) [2012]
ZAECPEHC 43 (10 July 2012) at para 25 which quoted a well-known
passage of the decision of
Mabona and
Another
v
Minister of Law and Order and Others
1988 (2) SA 654
(SE) with approval. The Court in
Mabona
held the following at 658 F – H:
‘…
It
seems to me in evaluating his information a reasonable man would bear
in mind that the section authorises drastic police action.
It
authorises an arrest on the strength of a suspicion and without the
need to swear out a warrant, ie something which otherwise
would be an
invasion of private rights and liberty.
The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he will not
accept it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he will allow
himself to
entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be
of sufficiently high
quality and cogency to engender in him a conviction that the suspect
is in fact guilty. The section requires
suspicion but not certainty.
However the suspicion must be based upon solid grounds. Otherwise it
will be flighty or arbitrary,
and not a reasonable suspicion.’
(Underlined for emphasis)
[57]
Zondi
J, in the
Mawu
decision where the passage in the
Mbotya
matter
was also raised, rightly rejected any suggestion that the relevant
passage was authority for the proposition that, for a
reasonable
suspicion to be formed, the quality of the information upon which the
arresting officer acts must be analysed and assessed,
and acting upon
information which has not been so scrutinised will render an arrest
unlawful.
[10]
He found
no such requirement in s 40 (1) (b) and I am in agreement with him.
[58]
All that is required by s 40 (1) (b)
is a suspicion which must be based on reasonable grounds. Quoting
from what was said by Lord
Devlin in
Shaaban
Bin Hussein and Others v Chong Fook Kam and Another
1969 3 All ER 1627
(PC) at 1630, Van Heerden JA in
Duncan
(1986) supra at 819I, said: ‘
Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; ‘I suspect but I cannot prove’.

Suspicion arises at or near the starting point of an investigation of
which the obtaining of prima facie proof is the end.’
[59]
Thus,
grounds for suspicion are not limited to those facts that can be
proved in court. It was conceivable that a reasonable suspicion
can
be formed ‘where a person has been seen at the scene of a crime
and upon being questioned gives a false
alibi
or refuses to answer questions.’
[11]
Arrest on reasonable suspicion can be made even if the intention of
the arrestor is first to conduct an investigation before charging
a
suspect or to question suspects or to test the
alibi
or place the suspect in identification parade.
[12]
[60]
Looking
at the facts of this case, Ryneveldt’s testimony was that he
had no time to obtain a warrant and had to act quickly
based on the
informer’s advices. I have already alluded to the fact that
there are indeed cases where arrest should be immediate,
where police
officers are duty bound to effect the arrest without having to
consider other extraneous factors, where it is necessary
to strike it
while the iron is hot as was stated by Jones J in
Mabona
supra
at 660D. Whilst that is so, the arresting officer ‘
should
keep an open mind and take notice of every relevant circumstance
pointing either to the innocence or to guilt
.’
[13]
[61]
As Bertelsmann J put it in
Louw
and Another v Minister of Safety and Security and Others
2006
(2) SACR 178
(T
)
at
185b: ‘
an arrest should only be
the last resort as a means of producing an accused person or a
suspect in court.’
[62]
The plaintiffs submit, firstly, that
the informer who allegedly gave information to Ryneveldt about the
house robbery did not give
him any additional information that could
be objectively assessed and lead to an arrest. When Ryneveldt was
told about the possible
suspects by the informer, he did not ask
questions so as to assess the information properly. He simply
arrested the plaintiffs
on the say- so of the informer.
[63]
Secondly, when he arrived at the
house in Mandalay he proceeded to arrest the plaintiffs (along with
six other male persons) without
anything linking them to the house
robbery in Montclair. If it was not an opportune time for Ryneveldt
to critically assess the
information given to him by his informer, he
still needed to verify same at the police station by taking the
exhibits found in
Mandalay with immediate effect to the victims to
see if the victims would be able to identify any of the items as
theirs.
[64]
Thirdly, what created further
urgency to critically assess whether it was reasonable to arrest,
according to the plaintiffs, was
the fact that the plaintiffs (and
five others) were not residing at the Mandalay address.  Added
to the insufficient evidence
which crucially needed to be assessed,
the victims of the house robbery were said to be intoxicated at the
time of the robbery
which had a potential of compromising their
ability to observe the identity of the assailants.
[65]
According to Mr Sidaki who appeared
for the defendants, the arrest was lawful because:
(a)
The evidence of Ryneveldt showed that
police acted on the information (provided by the informer) during the
course of investigating
housebreaking and robbery which occurred in
Montclair on 19 November 2012;
(b)
The plaintiffs were found among a group of
men identified by the informer as having been involved in the
robbery;
(c)
The police found items resembling those
that were stolen during the Montclair robbery;
(d)
The men, including the plaintiffs, could
not provide an explanation for those items found in their midst;
(e)
These constituted grounds sufficient and
reasonable for the police to suspect that the plaintiffs and the
other men in their company
may be guilty of the crimes of house
breaking and robbery or even competent verdicts thereto;
(f)
These met the requirements for the arrest
to be effected at that stage, as the police conducted further
investigation before formally
charging the suspects;
(g)
The photo identification parade that the
police held after the arrest where plaintiffs were identified
strengthened their case against
the plaintiffs and was also the cause
for the release of those that were not identified.
[66]
According
to Ryneveldt, what justified the arrest was the information he
received from his informer on 20 November 2012 that the
possible
suspects of the house robbery that occurred on 19 November 2012 were
with him at a certain house in Mandalay. The informer
did not know
how long the suspects would be there and the police had to react
quickly. He trusted this informer and the information
he gave as
being reliable as he had used him before and managed to secure
successful convictions. The informer did not tell him
much other than
to say that he must act fast ‘
because
these guys mentioned bank cards that was
(sic)
taken
the night before
’
[14]
‘…
He
mentioned that the suspects that was
(sic)
possibly
involved of the incident last night, last night before at Montclair
are also with him. He just don’t
(sic)
know
who were all involved
.’
[15]
[67]
An informer’s identity is not
disclosed in order to protect him or her and in order not to
jeopardise an investigation process,
which I accept. An informer,
ordinarily, does not depose to an affidavit like a normal witness
would and in those circumstances,
I venture to say that the
credibility of the information an informer provides cannot, without
more, be viewed in the same manner
as the information which is
obtained from a witness who gave a statement to the police under oath
about a suspect which may result
in that suspect’s arrest.
This is not to say that police officers cannot act on tip-offs. Every
case should be dealt
with in its own context.
[68]
In this case, Ryneveldt conceded
that he could not arrest the eight men solely based on the informer’s
information that there
were possible suspects at a house in Mandalay
who were talking about bank cards taken the night before. There had
to be more than
that and that ‘more’ became the items
which were suspected to be stolen. At that stage it was not clear who
of the
eight men were involved in the house robbery in Montclair, the
previous night as only three were implicated in that robbery.  It

is understandable that Ryneveldt could not pull the informer aside to
give him more information when the police arrived in Mandalay,
as
that could have exposed his identity. The actions of the police
officers after having noticed the items on the table and floor
in
Mandalay have to be analysed.
[69]
While it can be argued that the
existence of the items might have given rise to a suspicion, the
question that arises is whether
steps should have been taken to have
the suspicion confirmed one way or the other, and if so, what steps?
The most obvious step
was to establish from all the men if they knew
anything about the items found and why those were there. That step
was necessitated,
firstly, by the fact that seven of the men were
visitors at that house; secondly, the information provided by the
informer did
not link any particular individuals at that particular
stage. For instance, the informer did not say, A and B are the
possible
suspects or men wearing ABC clothes among the eight are the
suspects. So, at that stage no information linked any particular men

from the eight to the Montclair robbery; thirdly, De Villiers and
Ryneveldt were not first on the scene (in Mandalay). A number
of gaps
therefore, exist in this case. Members of the TRT unit who went to
secure the premises for safety reasons were not called
to testify
about how they found the scene when they arrived. More particularly,
whether the items noticed by De Villiers on the
table or the floor
were there when TRT arrived and whether the eight men that got
arrested were all inside or outside the house.
Both De Villiers
and Ryneveldt could not shed any light on this issue. They further
did not obtain any information from the members
of the TRT about the
state of the scene on arrival.  They only arrived on the
premises after the eight men had been ordered
to lie on the floor
inside the house. It was not enough, in my view, for De Villiers to
state that procedures did not allow TRT
members to do anything other
than to secure the place. A possibility existed, as it was put to De
Villiers, that the TRT members
searched or ordered the men to put
their belongings on the table or floor in an attempt to ensure that
the men did not have firearms
or dangerous objects on their person.
[70]
Nonetheless, De Villiers ascertained
from the resident of the house about the items and that person could
not tell him where the
items came from. The person told him that he
knew nothing. He then ordered the person to bring the items to him so
he could put
them in a sealed bag. Based on the fact that the person
could not account for those items, De Villiers informed Ryneveldt who
arrested
all the men in the house. There is a bit of blame-shifting
as to who took the decision to arrest. Ryneveldt’s evidence
further
contradicted De Villiers’ assertion that he (Ryneveldt)
was talking to the people lying on the floor. Ryneveldt stated that

he was talking on the phone and De Villiers was the one talking to
the people that were lying on the floor.
[71]
What is unsettling, in my view,
about Ryneveldt and De Villiers’ approach is that seven of the
men did not live in that house,
therefore it was crucial for them to
critically assess the situation before arresting all the men. It was
not sufficient in my
view to only ask the resident about the items,
if the intention was to arrest all the men. The fact that the
question to the resident
of the house was asked in a loud manner and
in full view of others that were lying on the floor does not, in my
view, absolve the
officers of their duty in those circumstances.
If the eight men were to be arrested for suspected stolen property,
logically
they should have been given an opportunity to account for
those items before being arrested. If they failed to account after
having
been asked, then the officers would be entitled to effect
arrest. It cannot be assumed that the resident of the house answered
for all of them and that if any of them knew about the items they
should have raised their hands and spoken. The question was not
posed
to them as a group, as De Villiers alleged at one stage. One person
was asked and he was asked on the basis that he resided
at that
house.
[72]
Dealing
with arrest for suspected stolen property, the court, in the judgment
of
Swalivha
v Minister of Safety and Security
(32477/2009) [2011] ZAGPPHC 32 (17 March 2011) at para 118, held
that: ‘
[t]he
suspect must have personal and direct control over the goods. He must
also be in possession at the moment that the goods are
found by the
police – see the discussion by Snyman Criminal Law fourth
edition on p514-515
.’
It was further held in
Setlhapelo
v Minister of Police and Another
(45031/2012)[2015]ZAGPPHC
363 (20 May 2015) which dealt with the requirements of 40 (1) (e) at
para 22, that if regard is to be
had to s 36 of the General Law
Amendment Act 62 of 1955
[16]
‘…
a
suspicion originally based on insufficient grounds that the property
has been stolen or illegally obtained or that a suspect has
committed
an offence in regard to property which is suspected of having been
stolen or dishonestly acquired
can
become a reasonable suspicion as a result of something which the
suspect says or does at the time when he is found in possession
of
the goods, such as giving an unacceptable explanation for his
possession of such property
.’
(Underlined for emphasis)
[73]
Seven of the men in the Mandalay
house were visitors. It is furthermore not clear whether they were
all found inside the house by
members of the TRT, and if so, doing
what? It could not be said that the items were found in their
possession if those were found
lying on the table whilst the men were
lying on the ground. Secondly, to the extent that it was suspected
that the men were in
possession of the suspected stolen property
found in the house, they should have been asked directly about the
items. What would
prompt an obligation from them to respond when they
were not individually or at least directly asked to account about
property
found in someone else’s house. What compounds the
problem is that both De Villiers and Ryneveldt did not see how all
the
eight men got to be inside the house. De Villiers conceded that
he did not ask members of the TRT to explain or make a statement
on
how they found the scene. A possibility that some of the men were
outside when TRT came and ordered them to go inside the house
cannot
be ruled out. De Villiers’ written statement that six men were
inside the house and two people were outside also raises
confusion.
De Villiers did not provide a satisfactory answer as to the
discrepancy between his testimony and the written statement
but
conceded that if the plaintiffs were outside there would be no reason
to arrest them. Whether they were inside or outside the
house it was
imperative, in my view, that they be given a fair opportunity to
account for the suspected stolen items.
[74]
I am not convinced by the argument
that De Villiers and Rynveldt found items that resembled those that
were stolen in the house
robbery. No such evidence was given.
De Villiers was not the investigating officer in the house robbery
but Ryneveldt was.
It was not Ryneveldt’s evidence that the
items found resembled those reportedly stolen at the scene of house
robbery because
that comparison was never made. Ryneveldt stated that
he did not ascertain whether any of the items were those taken from
Montclair
because he was not in charge of the exhibits. He also
conceded that he did not know if the men lying on the floor still had
their
cell phones in their possession when he arrived at the house.
He just observed cell phones and other items lying on the floor and

the table.
[75]
The blame shifting between De
Villiers and Ryneveldt as to who found the items did not assist. De
Villiers disputed Ryneveldt’s
evidence that he was in charge
and that he instructed the arrest. Nevertheless, what is clear is
that one of them or both formed
a view that because of the items that
were unaccounted for, the men must be arrested as some of them could
be suspects in the Montclair
robbery.
[76]
It is common cause that no link was
ever made between the items found and those stolen in the house
robbery and the men were never
charged for being in possession of
property suspected to be stolen. That also became apparent during the
bail proceedings.
[77]
It is so, that the plaintiffs were
identified in a photo album after they had been arrested. That, in my
view, is
ex post facto
.
It does not justify the initial act of unlawful arrest as the arrest
that occurred in terms of s 40 (1) (b). There must first
be a
reasonable suspicion to arrest. I accept that ‘[
a
]
reasonable suspicion may be confirmed by
an identification parade at which the arrested suspect is positively
identified and a prima
facie case may be thus born, or the hopes of
the police may be dashed by a negative result and the suspect
released
’ as Van Dijkhorst J
observed in
Duncan v Minister of Law and
Order (1984) supra
at 466B. Thus,
identification of the suspects during an ID or photo parade or photo
pointing out does not establish reasonable
suspicion but may confirm
a reasonable suspicion that already exists.
[78]
Whilst
‘
some
measure of detention necessarily follows an arrest, for there can be
no arrest without at least a momentary detention
’
[17]
,
further detention of the plaintiffs after they were identified and
charged and the act of  arrest itself are in my view two

separate actions with their own specific requirements that need to be
fulfilled.  In
Mahlongwana
v Kwatinidubu Town Committee
1991 (1) SACR 669
(E)  it was held at 675d-f:
‘
It
is clear that the mere act of arrest itself involves deprivation of
liberty, but our law recognises a clear distinction between
the act
of arrest, which may occur anywhere, and the act of detention in
custody, which involves incarceration after the arrest,
and pending
the taking of further procedural steps
.
The power granted to ‘detain’ may in particular
circumstances include the power to arrest.  See R v Moquena E
1932 OPD 52.
However, in my view, the power to arrest does not
include the power to detain save insofar as such detention may be
concomitant
to the arrest itself.
Arrest
is the act by which a free person is apprehended, if necessary by use
of force. Once the arrest has been effected, the authority
of the
person effecting the arrest insofar as any further detention is
concerned, ceases
. S v Van
Vuuren 1983 (4) SA F 662 (T) at 668E. Any subsequent detention, which
involves restraint in confinement for a specified
or unspecified
period of time, must be in terms of an authority to detain, and is
not automatically conferred, without such authority,
on the person
authorised to arrest.
’
(Underlined
for emphasis)
[79]
The
plaintiffs are in my view entitled to question the lawfulness of
their initial arrest. The fact that their further detention
may be
held to be lawful (which I will come to in a moment) is a different
question. In the first instance, an arrest still has
to be
justifiable according to the demands of the constitution and the
law.
[18]
I am therefore
persuaded to find that the first defendant has not been able to show
that the arrest of the plaintiffs was lawful.
In para 16 of the
Pillay
decision supra the court  observed that the provisions of s 35
(2) (d) of the Constitution, which I deal with below make it
clear
that the accused’s right to challenge the unlawfulness of his
or her arrest and detention does not lapse upon his first
appearance
in court. I align myself with this view.
The
48 hour requirement
[80]
Section
35 (1) (d) of the Constitution provides that a person has a right to
be brought before a court as soon as reasonably possible
but not
later than 48 hours after arrest; or the end of the first court day
after the expiry of the 48 hours, if the 48 hours expire
outside
ordinary court hours or on a day which is not an ordinary court day.
Section 50
(1) (d) of the
Criminal Procedure Act has
the same effect.
Ordinary court hours mean hours from 09.00 to 16.00 on a court
day.
[19]
[81]
The case of the defendant on the
aspect of detention after arrest suffers from evidentiary
shortcomings. Malan initially testified
that he received the docket
at about 14h00 on 20 November 2012, from his superior who informed
him that suspects were already in
custody. During cross examination,
he kept changing his testimony regarding the time he received the
docket, stating at one point
that he received the docket at around
14h00. At another stage he denied having mentioned the time to the
point of not committing
to any specific time, stating that it could
have been after 18h00, because if they were detained at 15h50 then he
would have received
the docket much later than 14h00. Malan
contradicted himself on this issue. Ryneveldt testified in cross
examination that he effected
the arrest at 15h00.
[82]
The SAP 14 register indicates that
on 20 November 2012 the plaintiffs were arrested by or at 15h00 and
detained at 15h50. The plaintiffs
themselves testified that that they
were arrested before 14h00 and were in custody by 15h00, which
materially coincides with that
of the first defendant’s
witnesses that the arrest was well before 16h00 on 20 November 2012.
In light of this evidence,
and lack of coherence from the first
defendant as to when the plaintiffs were arrested, I have no option
but to find that they
were kept in custody beyond the 48 hours
required before their first appearance in court. The onus was on the
first defendant to
prove the time of the arrest and that the
plaintiffs appeared in court within 48 hours and it failed to do so.
The document appearing
in the docket that was given to the prosecutor
stating 16h00 as the time of the arrest is accordingly of no value
and is misleading.
In any event, the time in that document, which
only the prosecutor presented contradicts the evidence of Malan,
Ryneveldt’s,
the plaintiffs’ and the SAP 14 register. The
detention of the plaintiffs after the expiry of 48 hours, without
having appeared
in court, was therefore unlawful.
Further detention
[83]
It
is so that after their first appearance the plaintiffs were remanded
in custody at the behest of the court. The court however
makes orders
based on information presented before it.  The  Supreme
Court of Appeal in
W
v Minister of Police
[2015] 1 All SA 68
(SCA);
2015 (1) SACR 409
(SCA)
at
para 25 referring to the Constitutional Court decision of
Zealand
v Minister of Justice and Constitutional Development and another
supra
held that the right contained in s 12 (1) (a) of the Constitution
‘
required
not only that every encroaching on physical freedom be carried out in
a procedurally fair manner, but also that it be substantively

justified by acceptable reasons. The mere fact that a series of
magistrates issued orders remanding the appellant in detention
was
not sufficient to establish that the detention was not arbitrary or
without just cause. The Constitutional Court then concluded
at para
45 that the majority [of the SCA in Zealand] wrongly held that the
magistrate’s remand orders justified the appellant’s

deprivation of freedom. The breach of s 12 (1) (a) of the
Constitution was sufficient in the circumstances of the case to
render
the appellant’s detention unlawful for the purposes of
delictual claim for damages, based upon the action for unlawful
detention
(para 53)
.’
The court held further that the legality of the manner in which the
magistrate’s discretion was exercised cannot
be precluded
simply by the existence of the magistrate’s order. Swain JA
observed that the constitution imposed a duty on
the state and its
organs not to perform any act that infringes the entrenched rights.
Further, that a policeman in the employ of
the state has a public law
duty not to violate a person’s right to freedom, either by not
opposing his or her bail application
or by placing all relevant and
readily available facts before the magistrate.
[20]
[84]
It
appears that during the bail application Mdlalose, through his
lawyer, did not apply for bail because of an outstanding warrant.
At
a later stage, Mr Davies told the court that Mdlalose was abandoning
his bail application. I agree with Mr Sidaki that Mdlalose
cannot
blame the state for his failure to apply for bail. Mr Sidaki further
submitted that Ntuli failed to show that exceptional
circumstances
existed warranting his release on bail.
[21]
He had an opportunity to provide the court with the details of the
alibi
he claimed he had. It was held in
W
v Minister of Police
supra
at para 3 that ‘
Proof
by an accused that he or she will probably be acquitted can serve as
‘exceptional circumstances’. The strength
of the State
case is accordingly relevant to the existence of ‘exceptional
circumstances’’
.
[85]
I am also not convinced by the
plaintiffs’ evidence that they told Malan that they had
alibis
.
Even if they did tell him, they could have given him more detail of
what their
alibis
were without the necessity to be probed and they failed to do so.
Ntuli’s legal representative told the magistrate that there

were no
numerus clausus
for exceptional circumstances. He only focused on personal
circumstances and on the photo pointing out which he argued was
questionable,
which were found not to be exceptional. The magistrate
was not told about the
alibi
or
given details about it. Mdlalose’s bail application was
postponed for more information. He chose not to pursue it
via
his legal representative. He was in
court when these submissions were made by his lawyer. Furthermore, no
representations were ever
made to the state about the alleged
alibis
so it could weigh both sides of the case.
[86]
Having said that, something needs to
be said about the manner in which the investigation of this matter
was handled. Malan stated
that he had never done a photo parade after
suspects were arrested. This instance was the first for him.
[87]
My
view on the appropriateness of the use of photo identification is
that this issue has been shown to depend on the circumstances
of each
case. The crucial consideration for assessing the cogency of such
process is fairness.
[22]
Circumstances that necessitate employment of photo identification of
suspects after their arrest, instead of identification parade
should
in my view be shown to exist.
[23]
I do take note of Simons’ testimony that what Malan did was not
a photo parade but a pointing out from a photo album.  Malan

referred to this photo pointing out as an informal parade which he
alleged he could do as an investigating officer. He conceded
in cross
examination that an investigating officer cannot conduct an ID
parade, which he terms as formal, of a case he or she is

investigating. Mr Sidaki is correct that this court is not called
upon to determine whether or not the plaintiffs were properly

identified, care, however, ought to be taken in how photo parades are
done.
[88]
Without deciding on this point,
there is something unnerving about the allegation that the basic
rules pertaining to conducting
identification of suspects generally
followed, which are intended to insulate the witnesses from improper
influence and to protect
suspects from being prejudiced, do not apply
or are not to be observed in what is termed an informal photo
pointing out after the
arrest of suspects. Whilst taking the point
that stringency is not required, I doubt that the safeguards, even at
the minimum level,
that are normally applied in identification
processes, whether formal or informal, which ensure that witnesses
are free from any
influence are as relaxed as it is suggested by the
defendants, when it comes to photo identification or photo pointing
out, done
after arrest of suspects. Such a view could potentially
taint the reliability of such identification processes, in my view.
[89]
The second issue that concerns me is
that when Malan was off sick for long periods and hospitalised no one
attended to the investigation
of the matter. The last time any
investigations were done was when Malan went to show the photos to
the victims on 22 November
2012 and statements from three of the
victims were taken. It is not clear what happened to the fingerprints
and photographs of
the scene if at all they were taken. Ryneveldt
testified that he called these experts to the scene in Montclair when
he was the
investigating officer. It appears from Malan’s
evidence that those were still outstanding. Regarding failure to
follow up
with the investigation, Malan stated that he was not
responsible for allocating the matter to another investigating
officer in
his absence. That was the responsibility of his superiors.
Although, the queries made by Simons would have no bearing on
whether or not a
prima facie
case existed, the fact that nothing was done since 22 November 2012
on account of Malan being off sick,  could have a bearing
on the
their continued stay in custody. Malan came back to work on 11 March
2013 and only then was it established that witnesses
had relocated to
Johannesburg. A decision to release the plaintiffs could have been
made sooner had Simons been made aware of these
developments earlier
on.
[90]
All that being said, there are no
sufficient grounds to hold that further detention of the plaintiffs
after their appearance in
court was unlawful. It may have been
undesirable, but I cannot find it unlawful. The plaintiffs were
charged and there were grounds
to investigate. Things did not go
their way during the bail application which could partly be
attributed to their legal representatives.
Was the
prosecution of the plaintiffs malicious?
[91]
The
onus on this aspect lies with the plaintiffs. They must allege and
prove that the defendants: a) set the law in motion or instituted

proceedings; b) acted without  reasonable and probable cause; c)
acted with malice (
animo
injuriandi
);
and the prosecution failed.
[24]
[92]
The bar for the plaintiffs is quite
high. When Simons received the docket it contained witness
statements, description of suspects,
Malan’s statement
photographs of the plaintiffs, warning statements and bail
information. All this information was available
at the first
appearance of the suspects. Having been presented with those facts,
she took a view that the contents contained in
the docket amounted to
a
prima facie
case and enrolled it for 23 November 2012.  She reasoned that
there were three complainant statements that talked to an incident

that occurred on 19 November 2012, a photo album was shown to them,
and they identified the plaintiffs and that in her view, constituted

a
prima facie
case of house robbery or robbery with aggravating circumstances
against the plaintiffs.
[93]
In
Moleko
the court held at para 64:
‘
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as to
the consequences of
his or her conduct  (dolus eventualis). Negligence on the part
of the defendant (or, I would say, even
gross negligence will not
suffice.
[94]
Having considered Simons’
evidence, I find no malice regarding her decision to prosecute the
plaintiffs. Simons acted astutely
in accordance with what she was
presented with in the docket, which showed a
prima
facie
case against the plaintiffs
existed. There is no evidence that she or the police officers acted
in pursuit of their own interests,
knowing that their actions to
pursue the prosecution of plaintiffs were wrongful and pursued it
anyway, without reasonable or probable
cause. I found no recklessness
either. Shortcomings in the investigation of the plaintiffs also do
not suffice. Not only could
they not be imputed on the second
defendant, negligence or even gross negligence is not sufficient to
constitute malicious prosecution
as stated in
Moleko
supra
. It
could further not be held that the prosecution failed.
[95]
The plaintiffs, accordingly, fell
well too short of the requirements outlined above. They could not
prove any of the required elements
except to show that the
prosecution was withdrawn, which in itself is not sufficient to
overcome the hurdle. The claim of malicious
prosecution must
accordingly fail.
[96]
In conclusion, I have found that the
arrest and failure to bring the plaintiffs before court before the
expiry of 48 hours were
unlawful. The further detention after their
appearance in court and their prosecution were lawful.
[97]
In view of my findings above, it
makes sense that costs be determined at the quantum stage.
[98]
In the result the following order is
made:
1.
The first defendant is liable for the
damages which plaintiffs shall have proved as having been suffered as
a result of their unlawful
arrest and their subsequent detention
prior to their first appearance in court;
2.
Claims in respect of malicious prosecution
are dismissed.
3.
Costs are to stand over for later
determination.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For the
plaintiffs: Mr L Godla and Ms G L Mziba of Godla & Partners Inc.,
Cape Town
For the
defendants: Adv. T S Sidaki
Instructed
by: State Attorney, Cape Town.
[1]
Act
108 of 1996 (‘the Constitution’)
[2]
Section
12(1)(a) and (b) of the Constitution
[3]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818 F-H;
Minister
of Safety and Security & Another v Swart
2012
(2) SACR 226
(SCA) at para 17
[4]
The
Appellate Division decision in footnote 2 above
[5]
Duncan
v Minister of Law and Order
(1986)
supra at 818 I – 819A
[6]
Duncan
v Minister of Law and Order
(1986) supra at 820 D
[7]
See
Zealand
v
Minister
of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) at paras 24 - 25
[8]
Minister
of Law & Order & Others v Hurley & another
1986 (3) SA 586
(A) at 589 E- F
[9]
Minister
of Safety and Security & Another v Swart
supra
at para 20
[10]
Mawu
& Another v Minister of Police supra
at
para 31
[11]
Mawu
& Another v Minister of Police supra
at
para 32
[12]
See
Duncan
v Minister of Law and Order (1984)
supra
at
468 E- G
[13]
Duncan
v Minister of Law and Order (1984) supra
at
466D - F
[14]
Page
414 line 21 of the record of proceedings
[15]
Page
414 line 26 to 415 line 3 of the record of proceedings
[16]
Section
36 of the General Law Amendment Act 62 of 1995 provides  that:
‘
Failure
to give a satisfactory account of possession of goods – Any
person who is found in possession of any goods, other
than stock or
produce as defined in section one of the Stock Theft Act,  1959
(Act 57 of 1959), in regard to which there
is reasonable suspicion
that they have been stolen and is unable to give a satisfactory
account of such possession, shall be
guilty of an offence and liable
on conviction to the penalties which may be imposed on a conviction
of theft.’
[17]
Minister
of Justice v Ndala
1956 (2) SA 777
(T) at 779 C-D
[18]
See
Pillay
v Minister of Police & Others
(5644/2011) [2011] ZAKZPHC 42 (30 September 2011) at paras 13 -16.
In particular para 16 where the court stated that: ‘
It
is clear from this provision [s 35 (2) (d) of the Constitution] that
the accused’s right to challenge the
unlawfulness
of his arrest
and
detention
does not lapse upon his first appearance in court
.’
[19]
Section
50
(2) of the
Criminal Procedure Act
[20
]
W
v Minister of Police supra
at
para 28
[21]
Being
a Schedule 6 offence in terms of
s 60
(11) (a) of the
Criminal
Procedure Act, the
accused bore the onus of establishing on the
balance of probabilities  that exceptional circumstances
existed, which in
the interests of justice permitted his or her
release.
[22]
The
South African Law of Evidence
,
DT Zeffert, AP Paizes, A St Q Skeen, Lexis Nexis Butterworths, 2003
at pages 148 and 149;
[23]
In
Van
Willing & Another v S
(109/2014)
[2015] ZASCA 52
(27 March 2015) at para 14 the court
found the reasons for resorting to photographic identity parade
(where a witness refused
to participate in the identity parade where
she had to face the persons she saw the night of the incident) were
valid due to
due to the accepted gang activities in the area and
there was an additional safeguard in place which ruled out
coincidence.
[24]
W
v Minister of Police
supra
at para 33. See also
Minister
of Justice and Constitutional Development and Others v Moleko
[2008] 3 All SA  47 (SCA)  at para 8