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[2013] ZASCA 119
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Minister of Police and Another v Du Plessis (666/2012) [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) (20 September 2013)
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 666/2012
Reportable
In the matter between:
MINISTER OF POLICE
................................................................................
First
Appellant
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
........................
Second
Appellant
and
ASHWELL DU PLESSIS
..................................................................................
Respondent
Neutral Citation:
Minister of Police v Du Plessis (666/2012)
[2013] ZASCA 119
(20
September 2013).
Coram:
NAVSA ADP,
PONNAN, BOSIELO & PILLAY JJA & MEYER AJA
Heard:
6 September
2013
Delivered:
20
September 2013
Summary: Lawfully
arrested person detained even after it became clear he had played no
part in offence for which he had been arrested
– prosecuting
authority at first and subsequent court appearances gave no
consideration to contents of the docket which indicated
arrested
person had merely been an innocent bystander – pressures under
which police and prosecutors operate discussed –
detention held
to be unlawful – decision to prefer charges held to be without
foundation – damages award by High Court
justified.
_____________________________________________________________________
ORDER
______________________________________________________________________
On appeal from
:
The South Gauteng High Court, Johannesburg (Campbell AJ sitting as
court of first instance).
The following order is
made:
1. The appeal is
dismissed with costs including the costs of two counsel.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NAVSA ADP, (PONNAN,
BOSIELO & PILLAY JJA & MEYER AJA CONCURRING):
[1] It could with some
justification be said that the facts on which the appeal before us is
premised give credence to the ironic
and cynical expression: No good
deed goes unpunished.
1
The appeal is about the
legality of the continued detention of the respondent, Mr Ashwell Du
Plessis (Du Plessis), after what the
parties agree was his lawful
arrest. It examines, against the specific circumstances of the case,
the legal duties resting on the
police and on prosecution authorities
after an arrest has been made. It brings into sharp focus the
independent role that prosecutors
should play in the public interest
and weighs this against the pressures under which they operate. It
considers the balance to
be struck between, on the one side, the
police force’s battle against crime, coupled with the practical
difficulties and
logistics attendant upon the administration of
justice, and on the other side, the premium that our legal system
places on personal
freedom. The limited facts that emerged during the
trial in the court below are set out hereafter.
[2] During the night of
Saturday 28 February 2004 a robbery took place at the premises of
Imperial Cargo and Logistics (Imperial),
in Wadeville, Gauteng. A
police intelligence unit had earlier obtained information that the
robbery was to take place and they
were therefore on alert.
Apparently the robbers intended to overcome the security personnel
and drive off in three of Imperial’s
trucks that had already
been loaded with cargo. A police force of some 30 officers assembled
at Germiston Lake in order to thwart
and arrest the robbers. The
police expected the robbery to take place after 22h00. Instead,
whilst they were waiting at the lake,
they were informed that the
robbery had already occurred at approximately 20h15 and that the
security personnel on duty at Imperial
Cargo and Logistics had been
overcome and subdued. Thus, they arrived at the scene of the robbery
after it had already commenced.
That notwithstanding, the robbery was
ultimately foiled and some people were arrested.
[3] The police informant
who had informed the police about the intended robbery had told them
that amongst the vehicles to be used
by the robbers would be a dark
blue Toyota Corolla and a white Hyundai panel van.
2
On their way from the
lake to the scene of the robbery the police came across a Toyota
Corolla and a Hyundai panel van in the vicinity
of Imperial Cargo and
Logistics but the vehicles were
then
seemingly abandoned and
empty.
[4] It appears that at
approximately 20h00 during the night that the robbery took place a Mr
David Bosch had acceded to a request
by his nephew, Mr Desmond
Reynders, to transport him and some of his work colleagues to their
places of employment in Wadeville
in his Hyundai panel van. It took
several hours because of stops and detours along the way before Mr
Bosch travelled with a party
of six, which included his nephew, to
Wadeville. Mr Bosch did not drop his passengers off at their places
of employment but at
a service station in the vicinity at
approximately 23h45. Significantly, Mr Bosch had testified during the
trial in the court below
that whilst travelling to Wadeville he had
overheard his passengers talking about a robbery that was being
planned at the workplace
of one of them. He testified rather
unconvincingly that he had not paid much attention to what was being
said about the intended
robbery.
[5] After his passengers
had alighted, Bosch’s nephew, Reynders, asked him to wait for a
while but after approximately ten
minutes he could wait no longer and
departed. A kilometre later the Hyundai experienced mechanical
problems and he could drive
no further. However incomplete the
picture leading up to this point might have been from the limited
evidence adduced in the court
below, it is uncontested that Mr Du
Plessis was asleep at his home in Germiston when the police arrived
at the scene of the robbery
and when Mr Bosch’s vehicle broke
down.
[6] Mr Bosch managed to
park his Hyundai at a deserted service station and walked to another
where he used a public payphone to
call Mr Du Plessis, who is a
self-employed motor mechanic and his friend. Du Plessis’ wife
answered the phone and woke him
with a plea that he be of assistance
to Bosch. Du Plessis did not have a car of his own but decided to use
the vehicle of a client
of his that he had recently worked on. That
car happened to be a Toyota Corolla, which was charcoal in colour.
[7] Du Plessis drove to
Wadeville where he found Bosch and his Hyundai. It is important to
note that the Hyundai initially parked
at the scene of the robbery
when the police arrived is the same Hyundai that Mr Bosch was driving
and it bore the same registration
number as that supplied by the
police informant. The Toyota driven by Du Plessis, however, was
distinct from the Toyota found abandoned
close to where the robbery
had taken place at Imperial’s premises. Du Plessis was busy
taking steps to tow the Hyundai with
his Toyota when the police
arrived at the scene. Du Plessis in his evidence said the following:
‘
I pulled my
car in front of the Kombi [and] hooked the Kombi up with a jack.’
That aspect of Du
Plessis’ evidence was unchallenged. Despite Du Plessis’
explanation about how and why he arrived at
the scene he was arrested
by Inspector Johan Willemse.
[8] After their arrest
Bosch and Du Plessis were conveyed to the Germiston police station
where they were handed over to Warrant
Officer Stephanus Van der
Merwe, the investigating officer. He, in turn, transported them to
the Heidelberg police station where
they were held in appalling
conditions until 2 March 2004 when they appeared in the Germiston
Magistrates’ Court. There,
together with fifteen others, they
were charged with armed robbery. The presiding magistrate postponed
the case for seven days.
Bosch and Du Plessis were then held at the
Boksburg police station in similarly disgusting conditions. In
addition there was severe
over-crowding, and they were permitted no
exercise.
[9] On 9 March 2004
Bosch, Du Plessis and their other co-accused appeared once again in
the Magistrates’ Court. The two were
now, for the first time,
legally represented. The case was postponed to 11 March 2004 in order
for a bail application to be heard.
On that day the charges against
Du Plessis were withdrawn and Bosch was released on bail.
[10] Du Plessis and Bosch
instituted action in the South Gauteng High Court against the
Minister of Police (the Minister) and the
National Director of Public
Prosecutions (NDPP) for damages sustained as a result of what was
alleged to be an unlawful arrest
and detention. The claim against the
Minister for the unlawful arrest and detention before their
appearance in court was that there
had been no basis at all for the
arrest and detention. The second claim against the NDPP and the
Minister jointly and severally
was that at the instance of the
police, Du Plessis had been brought before the Magistrates’
Court and that the police and
the prosecutor caused him to be
detained until his release. Furthermore, it was alleged that the
prosecutor was under a legal duty
to inform the Magistrates’
Court that there was no evidential or indeed any other foundation to
the charges against them.
[11] Campbell AJ who
heard the matter held that Willemse’s suspicions in the
vicinity of the scene of the robbery were reasonable
in respect of
the arrest of both Bosch and Du Plessis, stating that at that stage
there was evidence linking them to the robbery.
However, he went on
to say the following:
‘
The police
were required to apply themselves to whether or not it was justified
to further detain the two plaintiffs
(Mvhu
v Minister of Safety and Security and Another
2009
(2) SACR 291
(GSJ) at para 10). They did not do so and I do not think
that their reasonable suspicions survived more than a few hours at
the
police station.
The first defendant’s
exculpatory account of how he came to be where he was was conveyed to
Willemse at the scene by the second
defendant. I accept that Willemse
could not corroborate this at the scene of the arrest, but someone
could easily have done so
at the police station simply by telephoning
the first plaintiff’s wife.
Van der Merwe testified that the basic
paperwork in respect of the detention of each suspect took about an
hour. A five minute telephone
call to the first plaintiff’s
wife is not then placing too [indistinct] a burden on the police. I
therefore find that the
detention of the first plaintiff from about
02:00 on Sunday 29 February 2004 was unlawful. That detention
continued until the plaintiff’s
appearance in the Germiston
Magistrate’s court on Tuesday 2 March 2004.’
[12] Turning to the
question of the role and obligations of prosecutors the court below
said the following in relation to Du Plessis’
appearances in
court subsequent to his arrest:
‘
As explained
by Harms DP in
Sekhoto’s
case
the relevant decision is no longer that of the police but of the
court. But before the court’s decision comes the decision
of
the prosecutor to charge each accused. Mr Pretorius was the
prosecutor, he studied the information furnished to him by the police
and decided to proceed against all the accused, including both
plaintiffs.
He had no basis for proceeding against
the first plaintiff. Only two statements implicated the first
plaintiff. The first was the
first plaintiff’s own statement
which set out the version that I have already recorded, i.e. that he
was summoned to Wadeville
after 12 o’clock on the night of
Saturday 28 February 2004 to assist the second plaintiff.
The second plaintiff confirmed this.
There was nothing else. When confronted with this Mr Pretorius sought
refuge in vacuous generalities
such as the “totality of the
evidence”, but was never able to point to anything in the
docket that indicated possible
guilt on the part of the first
plaintiff, nor to any logical process that he had undertaken from
which he could, by drawing inferences,
have formed the view that
there was any basis at all for believing that the first defendant had
been involved in the robbery.
In my view there was no basis at all
for Mr Pretorius charging the first plaintiff on 2 March 2004. He
simply gave no consideration
to the matter.
In my view the role of the prosecutor
in charging suspects is an important one. The first plaintiff was
nothing other than an innocent
bystander but after arrest he was in
the hands of the authorities, he was reliant upon them to assess the
evidence against him
objectively and competently. His liberty was at
stake. If the decision went against him he was then in the hands of
the court in
the sense that his liberty could only be recovered by
way of a bail application.
He was therefore reliant on Mr
Pretorius to conscientiously apply his mind to the docket. But Mr
Pretorius did not do this and his
decision, especially in the light
of his weak explanations disclosed a dereliction of duty.’
[13] In respect of the
damages he awarded to Du Plessis, Campbell AJ made the following
order:
‘
1. The first
defendant is ordered to pay the amount of R100 000.00 to the
first plaintiff, plus interest at the rate of 15.5
per annum from 24
February 2012 to date of payment.
2. The second defendant is ordered to
pay the amount of R120 000.00 to the first plaintiff plus
interest at the rate of 15.5
percent per annum from 24 February 201
to date of payment.
3. The defendants are ordered jointly
and severally, the one paying the other to be absolved, to pay the
first plaintiff’s
costs of suit.’
He dismissed Bosch’s
action with costs. The Minister and the NDPP now appeal against the
findings referred to above and the
order set out in this paragraph.
[14] Police bear the onus
to justify an arrest and detention. In
Minister
of Law and Order and others v Hurley and another
1986
(3) SA 568
(A) at 589E-F the following is stated:
‘
An 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.’
[15] Our new
Constitutional Order, conscious of our oppressive past, was designed
to curb intrusions upon personal liberty which
has always, even
during the dark days of apartheid, been judicially valued, and to
ensure that the excesses of the past would not
recur.
3
The right to liberty is
inextricably linked to human dignity. Section 1 of the Constitution
proclaims as founding values, human
dignity, the achievement of
equality and the advancement of human rights and freedoms. Put
simply, we as a society place a premium
on the right to liberty.
[16] In
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para
24 the following is said:
‘
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case for the applicant
simply
to plead that he was unlawfully detained. This he did. The
respondents then bore the burden to justify the deprivation of
liberty, whatever form it may have taken.’
[17] Justification for
the detention after an arrest until a first appearance in court
continues to rest on the police.
4
Counsel for the
appellants rightly accepted this principle. So, for example, if
shortly after an arrest it becomes irrefutably clear
to the police
that the detainee is innocent, there would be no justification for
continued detention.
5
[18] In respect of Du
Plessis’s claim against the police we are faced with a position
where it is accepted that a basis existed
for the arrest but it is
contended that a most cursory investigation by the police immediately
thereafter would have resulted in
them becoming aware of his
innocence, and that this ought to have led to his release. In short,
Du Plessis pleaded that the police
owed him a legal duty and that in
breach of that duty they failed to cause even the most perfunctory
enquiries to have been made,
which would have resulted in his
release. The State contends that after his initial lawful arrest
there was no duty on the police
to consider whether Du Plessis’
further detention was justified.
[19] The court below
agreed with that submission on Du Plessis’ behalf and in the
passages referred to in para 11 above indicated
that the police could
easily have corroborated Du Plessis’ version of how he had
arrived at the scene by telephoning his
wife when they arrived at the
Germiston police station.
[20] If one accepts, as
one is constrained to because this was not disputed on Du Plessis’
behalf that the arrest was lawful
based on: his proximity to the
crime; and, association with Bosch who was in a vehicle that the
informant had indicated would be
used in the robbery and bearing the
registration number supplied by the informant then, in my view, it is
too simplistic to suggest
that a mere telephone call to his wife was
all that was required to cause the police to re-consider his
position. For, in those
circumstances the police could justifiably
have been sceptical of her corroboration of his alibi.
[21] Nonetheless, by
01h00 on Sunday morning 29 February 2004 the police had obtained a
statement from the security guard at Imperial
which reflected that he
had been confronted by eight men who informed him of their plan to
commit the robbery. He was assaulted
and ran away. A short while
later the police arrived with the suspects they had arrested, and the
security guard identified two
of them. He stated that he would be
able to identify the other robbers who had initially confronted him.
[22] By 02h05 that
morning another statement was obtained by Van der Merwe, from a
fellow police officer, Inspector Johan Williams.
That statement
indicated that prior to the robbery an informant had provided the
registration number of the Hyundai that would
be used in the robbery.
Inspector Williams also notes in his statement that he seized a
charcoal
coloured Corrolla from Du Plessis. That vehicle bore
no connection to the information provided by the informant.
[23] By 9h30 on Sunday
morning the investigating officer had obtained a number of witness
statements including one by Mr Andries
van Wyk, head of security at
Imperial, in which he described how an informant had telephoned him
to convey information that the
security guards at Imperial had
already been assaulted and that three vehicles were being used by the
robbers in the execution
of the robbery, namely, a gold coloured
Pajero, a white Hyundai panel van and a
dark blue
Toyota
Corrolla. It is important to note that according to Willemse the
informant had taken part in the robbery.
[24] By then it must have
become abundantly clear to the police that the totality of the
information then available to them pointed
ineluctably to Du Plessis
innocently having been at the wrong place at the wrong time. He had
been found at the scene in the process
of preparing to tow the
Hyundai using a jack and a tow line. This is hardly the typical pose
of someone who had just committed
a robbery, particularly with a
sizeable and noticeable police contingent in the immediate vicinity.
He had provided an explanation
for his presence consistent with his
actions. His explanation was corroborated by Bosch. Du Plessis’
vehicle did not match
the description of any vehicle used in the
execution of the robbery. Another vehicle that matched the
description, namely a Toyota
of a different colour, had in fact been
abandoned at the scene of the robbery. Another important feature is
that a security guard
at Imperial had been brought by the police to
identify Du Plessis and Bosch at the scene of the robbery but he
denied seeing either
of them at the premises as part of the gang of
robbers.
[25] In the circumstances
sketched in the preceding paragraphs, it can hardly be said that
there was any justification for the continued
detention of Du Plessis
after 9h30 on Sunday morning. There is a time difference of
approximately seven and a half hours between
what the court below
held was the time at which Du Plessis should have been released and
this conclusion reached by me. Counsel
for the parties were agreed
that this time difference is not such that on its own it would
materially affect the award of damages.
[26] In reaching this
conclusion, I am not unmindful of the pressures under which the
police operate. They are more often than not
called upon to deal with
emergency situations such as the one encountered here. In the present
case a number of people were arrested
and several witnesses had to be
interviewed before a full picture could emerge. That notwithstanding,
the police, if they had properly
considered all the information they
had by 09h30 on the Sunday morning, could only have come to one
conclusion, namely that Du
Plessis had played no part in the robbery.
[27] Counsel for the
second appellants rightly conceded that a conclusion that the police
were legally obliged to release Du Plessis
before the appearance by
Bosch and Du Plessis in court on the morning of Tuesday 2 March 2004
would negatively impact on the case
for the NDPP.
[28] Once an arrestee is
brought before a court, in terms of s 50 of the Criminal Procedure
Act 51 of 1977 (CPA), the police’s
authority to detain,
inherent in the power of arrest, is exhausted. In this regard see
Minster
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA) para 42. As pointed out by Campbell AJ in the
court below, before the court makes a decision on the continued
detention of
an arrested person comes the decision of the prosecutor
to charge such a person. A prosecutor has a duty not to act
arbitrarily.
6
A prosecutor must act
with objectivity and must protect the public interest.
7
In
State
v Jija and others
1991
(2) SA 52
(E) at 67I-68B the following appears:
‘
I must also
mention that the Court had an uneasy feeling that State counsel had
misconceived his function. It appeared to the Court
from the nature
of his address and attitude that he regarded his role as that of an
advocate representing a client. A prosecutor,
however, stands in a
special relation to the Court. His paramount duty is not to procure a
conviction but to assist the Court in
ascertaining the truth (
R
v Riekert
1954
(4) SA 254
(SWA) at 261D-G;
R
v Berens
[1865] EngR 42
;
[1985]
176 ER 815
at 822). See also
R
v White
1962
(4) SA 153
(FC);
R
v Tapera
1964
(3) SA 771
(SRA);
S
v Van Rensburg
1963
(2) SA 343
(N);
R
v M
1959
(1) SA 434
(A) at 439F.’
[29] In
Democratic
Alliance v President of the RSA and others
[2012]
1 All SA 243
(SCA) this court, after a discussion concerning
prosecutorial independence in democratic societies, quoted, with
approval, the
following part of a paper presented at an international
seminar by Mr James Hamilton, a then substitute member of the Venice
Commission
and Director of Public Prosecution in Ireland:
8
‘
Despite the
variety of arrangements in prosecutor’s offices, the public
prosecutor plays a vital role in ensuring due process
and the rule of
law as well as respect for the rights of all the parties involved in
the criminal justice system. The prosecutor’s
duties are owed
primarily to the public as a whole but also to those individuals
caught up in the system, whether as suspects or
accused persons,
witnesses or victims of crime. Public confidence in the prosecutor
ultimately depends on confidence that the rule
of law is obeyed.’
9
We should all be
concerned about the maintenance and promotion of the Rule of Law.
Given increasing litigation involving the NDPP,
these principles
cannot be repeated often enough. We ignore them at our peril.
[30] A prosecutor
exercises a discretion on the basis of the information before him or
her. In
State
v Lubaxa
2001
(2) SACR 703
(SCA) para 19 this court said the following:
‘
Clearly a
person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in
the expectation
that at some stage he might incriminate himself. That is recognised
by the common law principle that there should
be “reasonable
and probable” cause to believe that the accused is guilty of an
offence before a prosecution is initiated
. . . and the
constitutional protection afforded to dignity and personal freedom (s
10 and s 12) seems to reinforce it. It ought
to follow that if a
prosecution is not to be commenced without that minimum of evidence,
so too should it cease when the evidence
finally falls below that
threshold.’
[31] Courts are not
overly eager to limit or interfere with the legitimate exercise of
prosecutorial authority.
10
However, a prosecuting
authority’s discretion to prosecute is not immune from the
scrutiny of a court which can intervene
where such a discretion is
improperly exercised. See generally
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 37. Indeed a court should be obliged to and
therefore ought to intervene if there is no reasonable and probable
cause
to believe that the accused is guilty of an offence before a
prosecution is initiated.
[32] In the present case
the information referred to in paras 21 to 23 above was in the
prosecutor’s docket as were additional
statements. The
prosecutor had both the statement by Bosch which was exculpatory and
Du Plessis’ own statement which explained
how he arrived at the
scene. Significantly, the prosecutor had a statement by Mr Jefferey
“Boy” Louw who confirmed
that he had taken his car, a
silver Toyota Corrolla, to Du Plessis to be repaired. From all the
information in the prosecutor’s
docket it was clear that Du
Plessis was merely an innocent bystander and that there was no basis
for prosecuting him. In addition
the police and the prosecutor had
access to the informant. If there was no reason for the police to
continue to detain Du Plessis
before his first appearance in court,
the emergence of more exculpatory evidence was even greater cause for
his release. Mr Braam
Pretorius, the prosecutor in charge at material
times did not have due regard to the evidence in the docket.
[33] The following
comment written in the docket almost a year after Bosch and Du
Plessis’ first appearance in court by Ms
Linda Lamprecht, a
senior prosecutor at Germiston, is telling:
‘
Hierdie saak
is met alle respek nie behoorlik ondersoek nie.’
The conclusion by
Campbell AJ that Pretorius simply gave no consideration to the matter
is fully justified.
[34] Prosecutorial
authorities no doubt have an onerous task, faced as they are with
clogged court rolls and the pressures of collating
and analysing the
evidence in their dockets. In
May v Union
Government
1954 (3) SA 120
(N) at 128D-E
Broome JP, in dealing with warrants issued at the instance of
prosecuting authorities, said the following:
‘
It may be
objected that this view of the law places an intolerable burden upon
prosecuting authorities in that they must, at their
peril, come to a
correct conclusion of law before they apply for a warrant of arrest.
What of cases where the facts are known with
certainty but a genuine
doubt exists as to whether those facts constitute an offence? Are
suspected persons, in such cases, to
be allowed to be at large,
however serious the offence which their conduct is believed in law to
constitute? There are two answers.
First, even if the burden upon
prosecuting authorities is heavy, the subject’s right to
personal liberty requires that the
burden should be imposed. . . ‘
That comment is apt. A
prosecutor’s function is not merely to have the matter placed
on the roll to then simply be postponed
for further investigation. A
prosecutor must pay attention to the contents of his docket. As set
out above, a prosecutor must act
with objectivity and must protect
the public interest. In the present case that was not done.
[35] The present appeal
was also directed against the amounts awarded as damages by Campbell
AJ for the unlawful arrest, detention
and prosecution. Counsel for
the appellants was unable to argue with any real conviction that the
amounts awarded were disproportionate
when viewed against the award
approved by this court in
Minster
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) and after consideration of awards in other cases
considered in that decision.
11
In any event, as pointed
out by Nugent JA in the
Seymour
judgment, caution should
be exercised in comparing awards because each case must of necessity
be decided on its own facts. The total
period of incarceration was
close to ten days and the conditions under which Du Plessis was held
were appalling. In addition he
was a self-employed motor mechanic and
testified that the period of his incarceration and the knowledge in
his community that he
had been arrested in connection with an armed
robbery was devastating to his business. In my view, the awards by
the court below
are not extravagant and it cannot be said that a case
had been made out for overturning them.
[36] The following order
is made.
1. The appeal is
dismissed with costs including the costs of two counsel.
________________________
MS NAVSA
ACTING DEPUTY PRESIDENT
APPEARANCES:
FOR APPELLANT: Adv. D J Joubert
Instructed by:
State Attorney, Johannesburg
State Attorney, Bloemfontein
FOR RESPONDENT: Adv. E Killian (with him Adv. C
McKelvey)
Instructed by
S S Wangra Attorneys, Johannesburg
Naudes, Bloemfontein
1
Attributed
to journalist, editor and playwright Clare Booth Luce.
2
In
respect of the Hyundai, the descriptions ‘kombi’ and
‘panel van’ were used interchangeably by witnesses.
3
See
Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) para 14. See also s 12(1) of the Constitution of the Republic
of South Africa, 1996 which reads as follows:
‘
Everyone
has the right to freedom and security of the person, which includes
the right –
not to be deprived of
freedom arbitrarily or without just cause;
not to be detained
without trial;
to be free from all
forms of violence from either public or private sources;
not to be tortured in
any way; and
not to be treated or
punished in a cruel, inhuman or degrading way.’
4
In
Minister van Wet en Orde v
Matshoba
1990 (1) SA 280
(A) at 284H-I the following appears:
‘
Hoewel
hierdie passasies slegs verwys na ‘n inhegtenisneming –
dit was al wat daar in geskil was –
geld dieselfde beginsel
klaarblyklik ook vir die aanhouding van ‘n persoon.’
5
In
Duncan v Minister of Law
and Order
1986 (2) SA 805
(A) at 821A-C the following appears:
‘
It
is clear, however, from the decision in
Duke’s
case
that that duty does not relate to the time of the
arrest, but to the
period of detention prior to bringing the arrestee to justice or
releasing him, as the
case may be. It is only
when a policeman in England has subsequent to the arrest, but whilst
the
arrestee is still
lawfully detained, reached the conclusion that
prima
facie
proof of the
arrested person’s
guilt is unlikely to be
discovered by further investigation that it is his duty to release
him from custody:
Duke’s
case at 1058
b.
But a South African
policeman is under a similar duty.’
6
See
E du Toit, FJ de Jager, A Paizes, A St Quintin Skeen & S van de
Merwe
Commentary On the
Criminal Procedure Act
(2013
) at
1-4O.
7
See
Carmichele v Minister of Safety and Security and Another
(centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2002 (1) SACR
79
(CC) para 72.
8
Paras
77 to 82.
9
The
seminar was organised by the European Commission for Democracy
Through Law (Venice Commission), conducted at Trieste, Italy,
between 28 February and 3 March 2011, under the title ‘The
Independence of Judges and Prosecutors: Perspectives and
Challenges’.
10
Du
Toit et al
op cit
at 1-4P to 1-4Q and the authorities there
cited.
11
Paras
12 to 16.