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[2019] ZAGPJHC 258
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Shongwe v Minister of Police and Another (4885/2018) [2019] ZAGPJHC 258 (29 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
4885/2018
In the matter
between:
JOHN
LINDA
SHONGWE
Plaintiff
and
MINISTER
OF
POLICE
1
st
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Defendant
JUDGMENT
Mia AJ
[1] The plaintiff
was arrested and detained on a charge of rape of a minor child on 14
March 2017 and appeared in the Regional Court
Roodepoort on 16 March
2017. He was subsequently detained at Krugersdorp Prison pending a
schedule 6 bail application in terms
of the relevant provisions of
the
Criminal Procedure Act 51 of 1977
. The plaintiff was granted bail
in the amount of R4000 on 18 May 2017 which he only paid on 29 June
2017. On 1 September 2017 the
charges were withdrawn against the
plaintiff. The plaintiff now claims damages from the first and
second defendants, alleging
the arrest and detention was unlawful and
the prosecution was malicious. The parties agreed at the pre-trial
meeting held on 31
May 2019 that the merits and quantum would be
separated. The matter proceeded on the merits.
[2] The facts on
which the plaintiff was arraigned were as follows. Ms F M (Ms M), was
a […] of plaintiff. On the 11 March
2017 Ms M sent her child
to ask the plaintiff if there was space on his washing line to hang
her washing. The plaintiff said he
had no space on his line. On the
same day, the child reported to her mother that when she approached
the plaintiff, he took her
into his bedroom, closed the door,
undressed her and placed her on the bed. The child reported to her
mother the plaintiff inserted
his penis inside her vagina. He then
told her not to tell anyone or he would kill her. The matter was
reported to the police and
a case of rape was opened.
[3] On 14 March
2017 the defendant drove past his home when he saw a group of people
throwing stones at his house and went to Dobsonville
police station.
He was afraid they would burn down the house or damage the vehicle.
The group were toy – toying and throwing
stones at the windows
of the property.
[4] At the police
station he encountered Warrant Officer Matsapola (Mr Matsapola), who
asked him to be seated. Whilst he was seated,
Ms M arrived and
pointed at him and said “this is the one”. Mr Matsapola
went to an office accompanied by Ms M. Mr
Matsapola approached him
after some time had elapsed and informed two police officers to
detain him.
[5] The plaintiff’s arrest and
detention was admitted in the pre-trial minute dated 6 May 2019,
consequently the first defendant
bore the onus of proving that the
arrest and detention was lawful. The issues for determination
as put forward by the plaintiff
are thus:
5.1 Whether the first defendant’s
arrest and detention of the plaintiff was justified? Or rephrased
whether the arrest and
detention was unlawful?
5.2 Whether there was probable cause
to believe on objective grounds that there were reasons to prosecute
the plaintiff and that
the prosecution was not malicious?
5.3 Whether the
lawfulness of the further detention was justified?
[6] The defence called four witnesses:
Ms Tshepiso Koloti, the Regional Court prosecutor; Sergeant Grace
Mabungu, the investigating
officer; Mr Mothibi, the Regional Control
prosecutor; and Warrant Officer Maropeng Johannes Matsapola. The
plaintiff testified.
[7] Ms Koloti
received the docket from the control prosecutor to place on her roll
on 16 March 2017. After reading the docket and
considering the
evidence on the docket she was satisfied that there was a
prima
facie
case. She enrolled the matter for
prosecution and gave instructions to the investigating officer. She
based her decision upon the
child’s statement in the docket and
in view of the identity of the plaintiff being well known to the
child as they stayed
in the same neighbourhood. Ms Koloti considered
that the child repeated to a number of witnesses that she had been
sexually violated
by the plaintiff.
[8] Ms Koloti’s
further evidence was that the plaintiff was not granted bail on 16
March 2017 as the offence was a schedule
6 offence and the onus
rested on the plaintiff to show that exceptional circumstances
existed to permit his release on bail. The
question of bail was
referred to another court for determination and she was therefore
unable to respond to the question posed
to her why there was no
opposition to bail despite there being an uproar from the community
and despite it being a serious offence.
[9] There were
apparent contradictions put to Ms Koloti that she ought to have
applied her mind to, which included the doctor’s
conclusion
that the child’s hymen was intact where a 59 year old was
alleged to have penetrated a 9 year old female child.
It was also
put to Ms Koloti that the interference referred to by the
district surgeon was the examination conducted
by Ms M’ s
friend to determine whether the child’s hymen was intact. It
was further put to Ms Koloti that there
was no indication in the J88
that the child had clefts suggesting healed injuries as a result of
penetration.
[10] Ms Koloti’s
response addressed the above contradictions satisfactorily indicating
that the slightest penetration was
sufficient for a rape charge and
penetration need not be completed for penetration to be proved. The
intention to penetrate the
child was sufficient. With regard to a
sexual violation Ms Koloti responded that it was sufficient that an
alleged offender touched
the vagina with the head of the penis. In
respect of the contradiction relating to the numerous rapes Ms Koloti
responded that
one instance of rape was sufficient to enrol the
matter and the child witness was usually consulted within 21 days of
the matter
being enrolled. Whilst she could not recall the
reason for the withdrawal she indicated that each Magistrate made
their own
notes on the record and it was not dictated by the State.
The legal representatives also explained to their clients the
consequences
of a withdrawal. The withdrawal did not mean the matter
could not be re-enrolled or that the criminal prosecution stopped.
The
matter could be re-enrolled and matters that were withdrawn were
usually diarised to be reconsidered after a period of time. A
prosecution only stopped when it was marked “
nolle
prosequi”.
[11] Mr Mothibi,
the third defence witness corroborated Ms Koloti’s evidence. He
is the Regional Court control prosecutor
and has 10 years’
experience. He perused the docket and based on the statements in the
docket he found that there was a link
between the statements
contained in the docket and the offence. He considered the statements
and concluded that the prosecution
had evidence that could put up a
case that required a defence in a court of law. He decided later to
withdraw the case but could
not recall the reasons for the withdrawal
as a portion of the docket was missing.
[12] He also
indicated that the reason for the withdrawal is not usually
communicated to the court and there is no obligation to
communicate
the reason for the withdrawal to the court. It was however usually to
allow the investigating officer to complete an
investigation. He
stated that the withdrawal of the matter is not a verdict. A matter
may be reinstated at a later date. A case
is only not reinstated when
a decision is taken not to prosecute and endorsed accordingly as
“nolle prosequi”. The
docket in the present matter was
not marked thus. When the investigating officer has completed her
investigation the matter will
be brought back for the prosecution to
decide whether to prosecute the matter or not. There was no exact
period to decide not to
prosecute a matter. His evidence was
consistent with that of Ms Koloti on all of the above aspects
[13] Sergeant
Mabungu, a police officer with 15 years experience and a
detective dealing with sexual offence cases in the
Family violence,
Child violence and Sexual offences unit, received the docket on 14
March 2017 with the CAS number which contained
a statement from the
child’s mother and the child. The statement indicated the child
was violated on 11 March 2017 by the
plaintiff who inserted his penis
(‘totolozi’)
into the child’s vagina
(‘mphambili’)
.
Sergeant Mabungu requested the child to show her what she meant by
mphambili
and the child pointed to her vagina and stated that a
totolozi
is a penis. She took the child to the district surgeon for
examination and filed the medical report. Thereafter she presented
the docket to the Control Prosecutor, Mr Mothibi.
[14] She explained
that she furnished a written statement in respect of the bail
application instead of testifying as the decision
to grant bail was a
decision for the court to make and not her decision. She also
confirmed in her evidence that the child confirmed
to her that she
had been sexually violated in response to the contradictions
regarding interference and penetration referred to
in the J88.
[15] Sergeant
Mabungu explained that the prosecutor requested the child be brought
for a consultation. The mother of the child refused
to co-operate
when she discovered that the plaintiff had been released on bail.
According to sergeant Mabungu, the complainant
was angry and despite
several attempts to secure the child’s attendance at a
consultation with the prosecutor the consultation
did not occur. The
child and mother of the child moved away from the area. Due to the
lack of consultation and unavailability of
the witnesses the case was
withdrawn to allow her to trace the complainant.
[16] Mr Maropeng
Johannes Matsapola, a warrant officer with 20’ years’
experience as a police officer was the officer
who ordered the arrest
of the plaintiff. He was on duty and the officer in charge when the
plaintiff arrived at the charge office
at 20h00 on the evening of 14
March 2017. The plaintiff informed him that he was afraid of a mob
outside his home who wanted to
kill him. He was with the plaintiff
when Ms M, entered the charge office. She pointed at the plaintiff
and said he was a rapist
and furnished a CAS number 336/3/2017. She
had a piece of paper which showed the CAS. He then arrested the
plaintiff based on the
pointing out.
[17] The ring
leader of the mob came inside to ask whether the person had been
arrested and he showed him that the plaintiff had
been arrested.
Plaintiff handed his car keys to him fearing it may be burned by the
mob and requested he park it in the SAPS
yard. Plaintiff’s wife
arrived later to visit him and he requested Mr Matsapola to drive his
vehicle to his home and to hand
the keys to his wife. Mr Matsapola
did so. Mr Matsapola testified that he explained to the plaintiff
that he was arrested for rape
and informed him about his
constitutional rights. He informed him that he could contact his
lawyer and his family to request them
to bring any medication he
required. He testified that they provided a phone to facilitate
contact, if necessary.
[18] The plaintiff
was the only witness. He testified that on 14 March 2017 he
went to Carletonville where he sold health
products. He received a
call informing him that there were a group of people congregating at
his house. On arriving near
his home, he saw a group of
people at his house. He drove straight to the police station fearing
he would be harmed. He approached
Mr Matsapola and requested they
send police to investigate why the crowd was at his home. Mr
Matsapola told him to take a seat
while they sent a patrol to
investigate. Whilst seated a lady, Ms M and a man, Mr Zungu entered.
Ms M said “he is the one”.
The plaintiff enquired what he
had done. Mr Matsapola went to the office to find out. After a
lapse of time he returned with
two officers and requested the
officers to take him into custody. Mr Matsapola offered to park his
vehicle on the SAPS premises
to avoid damage to the vehicle by the
angry mob.
[19] Plaintiff
testified that he was informed of his rights only the following
morning. He was requested to make a statement and
informed that he
could elect to make a statement in court. He slept at the police
station on Sunday and was taken to court on Monday.
The matter was
remanded and he was detained at Krugersdorp Correctional Facility
thereafter. He initially furnished the Dobsonville
address and he was
informed that bail would be opposed. His wife spoke to her brother
and he offered his brother in law’s
address as an alternative
address which he could reside at upon his release. The matter was
postponed to confirm this address as
he furnished an address in
Orange Farm. This was not his usual address. The plaintiff
testified that he was granted bail
and paid the following day.
However the record and evidence reflects that he was granted bail
on18 May 2017 and his bail was only
paid on 29 June 2017 sometime
after the bail amount was determined. On 1 September 2017 he appeared
again. The magistrate informed
him that he was free to go. There was
no case against him. His attorney informed him to open a case against
Ms M and Mr Zungu for
taking his property.
[20] The first
issue to be considered is whether the plaintiff’s arrest and
detention was unlawful. In considering the issue,
the evidence is
considered in light of section 40(1)(b) of the Criminal Procedure Act
51 of 1977(CPA), which provides:
“
(1)
A peace officer may without warrant arrest any person-
……
;
(b)
whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful
custody;”
[21]
In establishing their defence the defendants are required to
establish certain facts to justify the arrest of the plaintiff.
The
jurisdictional facts required to be proved are referred to in the
established case in
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A)
which
set out the jurisdictional facts for
a
s 40(1)
(b)
defence
at
818H – J
as follows:- (i) the arrestor must be a peace officer;
(ii) the arrestor must entertain a suspicion; (iii) the suspicion
must be that the suspect (the arrestee) committed an offence referred
to in Schedule 1; and (iv) the suspicion must rest on reasonable
grounds. (See also
Minister
of Safety and Security v Sekhoto and another
2011(5) SA 367(SCA)).
[22]
Once the aforementioned jurisdictional facts are present the
discretion whether or not to arrest arises. The police officer
is not
obliged to effect an arrest. This was made clear in relation to
section 43 in
Groenewald
v Minister of Justice
1973
(3) SA 877
(A)
.
The police officer may exercise a discretion to arrest the person. In
Minister
of Safety and Security v Sekhoto and another
2011(5) SA 367(SCA) Harms DP notes at paragraph [29] that the
police officer has a discretion whether to exercise the power
to
arrest and that the power must be properly exercised. He notes
further in the same paragraph.
“
No
doubt the discretion must be properly exercised.
But
the grounds on which the exercise of such a discretion can be
questioned are narrowly circumscribed…..
”
(my emphasis)
[23] The
exercise of the discretion is important and must be proper. In
Minister of Safety and Security v Sekhoto and another,
(
above)
paragraph [32], Harms DP refers to three questions to be posed in
exercising the discretion upon arrest. These are as follows:
“
the
three
Castorina
questions formulated for determining the legality of an arrest
without a warrant by Woolf LJ:
30
(a)
did the arresting officer suspect that the person arrested was guilty
of the offence;
(b)
were there reasonable grounds for that suspicion; and
(c)
did the officer exercise his discretion to make the arrest in
accordance with
Wednesbury
principles?”
At
least two of the three questions are similar to three of the four
jurisdictional facts to be proved by the defence as set out
in
Duncan
above. Of relevance is whether the discretion was exercised in
accordance
with
the
Wednesbury
principles
[1]
'.
This in essence entails that where a matter is left to the discretion
of a public officer and where his/her judgment has
been
exercised in a
bona
fide
manner, a Court will not interfere with the result, unless such
an officer acted
mala
fide
or from ulterior and improper motive
.
[24]
Once the jurisdictional requirements are met the peace office may
exercise a discretion whether or not to arrest. This power
to arrest
must be exercised properly and must meet the requirement that it is
rationally related to the purpose for which the power
was given. This
calls for an objective enquiry
[2]
.
It cannot be exercised out of malice, to punish a detainee or to
deprive the detainee of his/her freedom or to influence the
arrestee’s conduct.
Minister
of Safety and Security v Sekhoto and another
2011(5) SA 367(SCA)
[25]
In
the present matter Ms Mahlangu submitted that i
n
terms of schedule 40(1)(b) of the CPA an arrest without a warrant is
permissible in respect of an offence for which punishment
exceeding 6
months imprisonment without an option of a fine may be imposed.
Schedule 1 of the CPA includes a charge of rape. She
argued that the
punishment for a charge of rape exceeded 6 months without the option
of a fine. Mr Matsapola is a peace officer,
the rape of a minor falls
under a schedule one offence. The defendant was required thus to show
that Mr Matsapola entertained a
suspicion and that the suspicion
rested on reasonable grounds. In this regard she argued that the
victim’s mother had laid
a charge of rape with a CAS number
which was verified when Mr Matsapola checked on the system. The
victim’s mother pointed
out the plaintiff as the suspect and
positively identified him. He was well known to the family.
[26]
In considering Mr Matsapola’ s arrest of the plaintiff, Ms
Mahlangu argued that he exercised his discretion properly
in
arresting the plaintiff
in
light of the jurisdictional requirements. Mr Matsapola is police
officer and therefore ‘a peace officer’. His evidence
indicated that he arrested the plaintiff based on the pointing out of
the plaintiff by Ms M who produced a CAS number and ascertained
that
the plaintiff was suspected of rape, an offence which is contained in
schedule one. Having regard to the pointing out
by Ms M, Mr
Matsapola formed the objective view that the complainant was the
suspect in a serious criminal offence and that he
posed a danger and
was to be arrested. He detained the plaintiff, read his rights,
assisted with safeguarding his property and
later, when his wife
visited, took the trouble of taking the plaintiff’s vehicle
home. Accordingly, Ms Mahlangu argued that
the jurisdictional
requirements were met.
[27] Ms Chabalala,
appearing for the plaintiff, referred to
Section 40
(1) (b) of the
Criminal Procedure Act and
the
Duncan
case, which listed the jurisdictional factors and conceded that it
was not in dispute that Mr Matsapola was a peace officer and
that he
entertained a suspicion when effecting the arrest. She argued however
that the plaintiff placed in dispute that the suspicion
was
reasonable and based on reasonable grounds to justify the arrest as
there were no objective grounds at the time of the arrest
which
enabled the arresting officer to conclude that the plaintiff
committed the offence. She referred to
Mabona
and another v Minister of Law and Order and, Others
1988
(2) SA 654
(SE) at 658 which held that information upon which the
reasonable suspicion was based must be at the police officers
disposal at
the time of the arrest.
[28] In considering
whether Mr Matsapola exercised his discretion properly, I have had
regard to the questions posed in
Duncan
.
Ms Chabalala conceded that there was no issue with the first two
questions which are answered in the affirmative. There are two
remaining questions namely whether Mr Matsapola entertained a
suspicion in respect of a schedule 1 offence and whether the
suspicion
rested on reasonable grounds. Ms Chabalala argued that
there were no grounds upon which Mr Matsapola could rely and that he
acted
on an unreasonable suspicion. This test she submitted was an
objective test. He ought to have investigated further to enable him
to exercise his discretion in a proper manner. She argued that the
discretion accorded to police officers cannot be abused it must
be
exercised on reasonable objective grounds.
[29] The offence in
question is a charge of rape and this is covered by schedule one and
is answered in the affirmative. The only
question that remains is
whether the suspicion formed rested on reasonable grounds. To
determine this one needs to look at the
facts. The mother of the
victim laid a charge of rape. The statement of the child and of the
mother indicated the child was sexually
violated by the plaintiff.
There was no indication that there were problems between Ms M and the
plaintiff and there is no reason
why a complaint would be laid
without good reason. The CAS was registered on the plaintiff’s
SAPS system. This constituted
sufficient information to form an
objective view and a reasonable suspicion which would enable the
police officer to exercise his
discretion without
mala
fides.
Having considered the
facts I am of the view that the police officer exercised his
discretion reasonably in the circumstances
in terms of
section 40
of
the
Criminal Procedure Act 51 of 1977
.
[30] The second issue for
determination was whether the plaintiff was maliciously prosecuted by
the second defendant. In
Minister of Safety
and Security v Sekhoto and another, (above)
Harms DP at para [42] states:
“
While
it is clearly established that the power to arrest may be exercised
only for the purpose of bringing the suspect to justice,
the arrest
is only one step in that process. Once an arrest has been effected,
the peace officer must bring the arrestee before
a court as soon as
reasonably possible; and at least within 48 hours, depending on court
hours. Once that has been done, the authority
to detain, that is
inherent in the power to arrest, is exhausted. The authority to
detain the suspect further is then within the
discretion of the
court.”
[31] Once the
plaintiff was brought to court on a schedule 6 offence the onus
rested on the plaintiff to bring an application to
court to show
reasons why the interests of justice permitted that he be released.
The plaintiff was legally represented during
this period according to
his evidence. It appears that initially his release was opposed in
the event he intended returning to
the same address. He thus arranged
for an alternative address. The matter was postponed to verify the
address. He was then released
on bail.
[32] The plaintiff
contends that there were contradictory statements and a failure to
consult with the witnesses and therefore the
prosecution was
malicious. Ms Chabalala argued that the case was withdrawn because
the witnesses were not available. She argued
further that because the
reason for the withdrawal is not known and was not communicated this
points to a failed prosecution and
malice on the part of the
prosecution.
[33] When Ms Koloti
placed the matter on her roll there was sufficient evidence to her
mind to for a prima facie case of rape or
sexual assault on a minor
child. She explained that penetration need not be full penetration as
was usually understood but that
once there was an intention to
penetrate this was sufficient. The statement of the victim was clear
that she had been sexually
violated. The medical report did not
rule out interference. The basis of the complaint and enrolment was
the victim’s
statement and this could be ignored. She also
explained that a withdrawal did not equate to a decision not to
prosecute or a decision
on the merits.
[34] This view was
corroborated by Mr Mothibi the Regional Control prosecutor who
reiterated that the record of the magistrate was
not dictated by the
prosecution and neither was the prosecution obliged to place on
record the reasons for a withdrawal. He testified
however that often
matters were withdrawn to allow for investigations to be completed.
In the present matter he could not confirm
what the reasons for the
withdrawal were as the withdrawal diary in the docket had
disappeared. He testified that matters withdrawn
could be re-enrolled
at a later date. On the above aspects I found the evidence to clear
consistent and satisfactory in every respect.
[35] The
investigator Sergeant Mabungu testified that she did not go to court
to oppose bail as she provided a written statement
and left the
decision in the hands of the court to determine bail. In this regard
the investigating officer is clear in the role
she plays in assisting
the court to make a determination in the bail application. She
explained further that when she requested
the mother to take the
minor child to consult with the prosecutor the mother of the child
refused to co-operate and was angry as
the plaintiff was released on
bail. She believed that the mother felt betrayed and left the area.
She was unable to locate the
mother after she left the area.
[36] It is not
unheard of that a complainant in a sexual offence matter returns
later to resume proceedings. From the above it is
evident that the
matter may have been withdrawn to enable the investigating officer to
trace the complainant and state witnesses.
In view of the
possibility of the complainant returning to resume the prosecution
after the prosecution has had an opportunity
to properly consult with
the complainant the matter may well be re-enrolled and the
prosecution may well continue. Both Ms Koloti
and Mr Mothibi
testified to this possibility.
[37] The indication
from the plaintiff that the magistrate informed him that there was no
evidence against him appears to be without
a basis. Without the
benefit of having insight into the docket and without his attorney
having the benefit of further information
regarding the contents of
either the docket or the reasons for the withdrawal, the plaintiff’s
reasons for the withdrawal
amount to speculation at this stage. The
court record makes no reference to the reason for the withdrawal. It
is apparent that
the investigation was not complete. The mother of
the victim was angry and not co-operating upon discovering the
plaintiff had
been released on bail after he had sexually violated
her daughter. As a lay person she may have misunderstood the legal
process
and not believed in the process and the failure to consult
with the prosecutor exacerbated the situation. I am unable to
conclude
that there was a malicious prosecution on the part of the
second defendant herein.
[38] Having
considered all the facts and the submissions made by counsel in the
matter, I am of the view that the police acted reasonably
in the
circumstances in terms of
section 40
of the
Criminal Procedure Act 51
of 1977
and the first defendant cannot be held liable. Further I am
unable to find that the second defendant acted with malice in
prosecuting
the plaintiff in the matter under CAS 336/03/2017.
[39] Counsel for the plaintiff argued
that the defendant be liable for the wasted costs as the matter was
set down for two days.
The pre-trial was held on 31 May 2019 when the
defendant agreed to the dates. On the 6
th
the key witness
was not available due to exams and another witness was ill. The
medical certificate was produced. It is entirely
foreseeable that the
defendants would have been able to proceed had the one of the
witnesses not fallen ill. Illness is not predictable.
A good part of
the day was utilised to present evidence consequently I am not
inclined to grant an order against the first and
second defendants
for wasted costs under the circumstances where a witness was ill.
ORDER
[40] In view of the above the
following order is made:
1. The plaintiff’s claims: (A)
that the first defendant is liable for the unlawful arrest and
detention of the plaintiff
and (B) that the second defendant is
liable for the malicious prosecution of the plaintiff are dismissed
with costs.
_________________________________________________
S C MIA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
LOCAL GAUTENG DIVISION,
JOHANNESBURG
Appearances:
On behalf of the applicant :
Adv. Chabalala
Instructed
by :
Ndou Attorneys
On behalf of the respondent :
Adv. E Mahlangu
Instructed
by :
The State Attorney
Date of
hearing :
6, 7, 14 June, 9 July 2019
Date of
judgment :___
July 2019
[1]
This
is
a reference to the judgment of Greene MR in
Associated
Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223
(CA) ([1947] 2 All ER 680)
[2]
This was
held by Chaskalson P. in
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
2000
(2) SA 674 (CC)
.
“
'
It
is a requirement of the rule of law that the exercise of public
power by the Executive and other functionaries should not be
arbitrary. Decisions must be rationally related to the purpose
for which the power was given, otherwise they are in effect
arbitrary and inconsistent with this requirement.