About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 155
|

|

Coetzee v National Commissioner of Police and Others (70259/09) [2010] ZAGPPHC 155; 2011 (1) SACR 132 (GNP) ; 2011 (2) SA 227 (GNP) (11 October 2010)

REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT - PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 70259/09
DATE:
11/10/2010
THE
HONOURABLE ACTING JUSTICE ROELOF DU PLESSIS
In
the application of:
JACK
COETZEE
…..............................................................................
Applicant
and
THE
NATIONAL COMMISSIONER OF POLICE
…..........................
First
Respondent
THE
MINISTER OF SAFETY & SECURITY
…..................................
Second
Respondent
AND
OTHERS
JUDGMENT
INTRODUCTION
AND BACKGROUND
[1]
This application was urgently brought on the basis that an arrest was
unlawful and that I should release the applicant in terms
of the
common law. I will deal with the law applicable to this matter later.
[2]
The applicant filed an affidavit by its attorney, Mr Riaan Meyer with
me during the evening of Sunday, 15 November 2009 wherein
he stated
that he had requested the investigating officer in the matter why
bail was refused to the applicant. The specific investigating
officer
apparently put the phone down in his ear and was of no assistance.
The Pretoria West police station did not answer their
telephone and
after having contacted the flying squad, the applicant's attorney, Mr
Meyer was also again just put through to the
Pretoria West police
station. Mr Meyer also stated in his affidavit to me that the
applicant was to be transferred to the Atteridgeville
police station
during that evening.
[3]
The applicant's wife, Ms Hester Maria Coetzee also filed an affidavit
drafted on short notice, in terms of which she stated
that the
applicant had been employed for the previous twelve months at ABI
Olifantsfontein and that he earns approximately R7 000,00
per month.
She said that she had been married to the applicant for 22 years and
that they had been resident in Jan Niemand Park,
Pretoria since 1993.
They have two children and the value of their house is approximately
R500 000,00. They also own two vehicles.
She stated that the
applicant has no passport. She stated that the Tshwane Metro police
apparently attempted to stop the applicant
whereafter the applicant
explained to them that he would stop at the nearest police station.
Thereafter a number of vehicles of
the Tshwane Metro police
apparently forced the applicant's vehicle off the road after which he
was arrested by the Metro police
and taken to the Pretoria West
police station. There he was apparently charged and held. Mr Meyer
also gave oral evidence before
me on Sunday, 15 November 2009. He
testified that the applicant was arrested at approximately 17h00 for
alleged negligent and reckless
driving. He and his wife were
apparently returning from Hartebeespoort Dam when the Metro police
indicated to the applicant to
stop. He then told them that he would
stop at the nearest police station.
[4]
The attorney testified that in his experience, for such a
transgression as was alleged to have been committed, a person is
normally fined by the Metro police, alternatively if he is arrested,
the SAPS is in a position to grant bail (publicly known as
police
bail). Mr Meyer testified that he tried to call an off-duty
prosecutor but that he was told that it was not a schedule 7
criminal
offence (in terms of the
Criminal Procedure Act, No 51 of 1977
), and
for that reason, the state prosecutor could not assist. This is so
because the SAPS is entitled to grant bail under these
circumstances,
and they would normally do so.
[5]
Superintendent Malema, who was not on duty at the time, but who is
the station commissioner for the area, was contacted telephonically

and he arrived at the hearing on Sunday evening. He also gave
evidence. He said that he had no knowledge of the matter but that

there was confusion about the powers of the SAPS and the Metro police
pertaining to arrests, in respect of the new traffic offence
system
called "AARTO".
[6]
I then issued a rule
nisi
in
the terms referred to below, which rule
nisi
was
issued late on the Sunday evening, after much trouble and
inconvenience. I requested to be furnished with the name of the
station
commander of the Pretoria West police station, who was on
duty the evening of 15 November 2009, as well as the name of the
investigating
officer of the applicant. I also ordered that the
respondents should provide reasons why the investigating officer and
the station
commander should not be held personally liable for costs
of the application. I also ordered the immediate release of the
applicant.
[7]
Further affidavits were then filed by the parties whereafter the
matter was finally argued. I required full reasons why the
applicant
was not given bail or granted the opportunity of paying a fine by the
SAPS after having been arrested, and as to who
should pay the costs
of the application. The station commander, the metro policeman, the
investigating officer, and the commander
responsible that evening for
charging persons and granting bail, eventually appeared before me,
and they were all represented by
the State Attorney and counsel. They
were joined as respondents and had the opportunity to file affidavits
and be represented.
[8]
The applicant, Mr Coetzee, filed an affidavit in which he explained
what had happened according to him. He stated in the affidavit
that
he and his wife as well as his son and the son's girlfriend visited
Hartebeespoort Dam. He stated that on their way back,
he saw a person
who waived at him walking into the road. He was not persuaded that it
was a Metro policeman and he decided to continue
driving. The Metro
police followed him and indicated to him that he should pull off the
road. His son indicated to them that they
should follow him to the
nearest police station where he thought it would be safe to stop. He
states that he was scared that, as
has happened often recently, the
persons were not real Metro policemen but rather robbers and he
wanted to safeguard his wife and
his son's girlfriend. When he
stopped at the said robot he noticed a person from the other vehicle
following him, getting out of
the vehicle with a pepper spray can. He
said that he was not prepared to be assaulted and he decided to drive
on through the red
robot. This is apparently part of the complaint of
reckless and negligent driving against him.
[9]
Furtheron, approximately four to six vehicles of the Metro Police
pulled him off the road. The door of his vehicle was pulled
open, he
was forcibly pulled out of the vehicle and his arm was twisted behind
his back. The person who pulled him out then told
him that he was
going to be arrested. He was not told the reason for the arrest. He
was then taken to the Pretoria West police
station where he was held.
He was then given a SAPD 14Aform which indicated that he was to be
prosecuted for the following:
"Failed
to comply with instruction of traffic officer, crimen injuria and
driving unlicensed and unregistered motor vehicle."
(There
was no mention of negligent and reckless driving).
He
provided the court with copies of his motor vehicle registration
number and the licence documents. The allegation that he was
driving
an unlicensed and unregistered motor vehicle is therefore not
correct. There was never a basis for the allegations. He
further
denies any allegation of
crimen
injuria
and
explained why he did not comply with the instructions of the traffic
officer. A telephone number was given to his wife of the
so-called
"investigating officer". This is the number that the
attorney had phoned. The person on the other side refused
to identify
himself and simply indicated telephonically that he refused bail.
This was also confirmed in the evidence of the attorney,
Mr Meyer. At
that stage Mr Meyer had not known that it was the number of the Metro
policeman. It appeared in court for the first
time that this
telephone number was actually the telephone number of the Metro
police officer who had arrested the applicant and
not the telephone
number of any SAPS investigating officer.
[10]
An affidavit was filed by a detective constable Mandla Steven
Ntsweni. He is the appointed SAPS investigating officer in the

matter. He stated that the matter was allocated to him on the Monday
morning of 16 November 2009 after I had already ordered the
release
of the accused. He states that at the time the application had been
made to court no investigating officer had been appointed.
He
confirmed that the telephone number that was given to the wife of the
applicant was the telephone number of the Tshwane Metro
police
officer, constable Frans Moosa Sivayi, who was responsible for the
arrest of the applicant on 15 November 2009.
[11]
The deponent then, in my view, quite brazenly, stated that the
applicant made out no case on the papers that served before
me on
Sunday evening, 15 November 2009 for interference by the court. He
said that there was no reason or special circumstances
why the
applicant should have been released. He also disavows any question of
the applicant, his family or his attorney asking
for bail.
[12]
He states that the Metro policman Sivayi, informed the applicant of
his constitutional rights, and that the applicant at no
stage
according to Sivayi, sought bail or his release from detention. That
is directly controverted by the applicant, his wife
and the attorney.
The evidence is clear that Sivayi indicated himself that he had
refused bail and that the applicant, his wife
and the attorney were
at all relevant times under the impression that Sivayi was an officer
of the SAPS, that he was the investigating
officer, and that he had
the power to decide on bail or release.
[13]
The deponent also then annexed the SAPS 10 occurrence book and
attempted to justify his allegation that no bail was ever asked
for,
by stating that it was not written into the SAPS 10 occurrence book.
He also stated that he had perused the statements in
the crime
docket, that the applicant refused to comply (which indicates that
the applicant refused to comply with an instruction
to stop), that
the Metro police had followed him for quite a distance, that he had
crossed several red robots, that he refused
to stop, and that he was
then forced to stop. He also stated, which later appeared to be not
true, that the applicant was driving
an unlicensed motor vehicle. He
alleged that the applicant showed the arresting officer an offensive
middle finger and told him
to "f...-off". He stated that
any fine payable on such a charge must be determined by a court.
[14]
Annexed to that affidavit was an affidavit of the Metro policeman,
Frans Moosa Sivayi. He confirmed the evidence of the investigating

officer. He also stated that he was so friendly and nice that he even
arranged medicine for the applicant to be brought to the
police
station. He also says that at no stage the applicant or his family
asked for bail. (Applicant was apparently according
to him simply
content to be locked up). He continued to allege that the applicant
had committed several traffic offences, refused
to obey a lawful
instruction, drove an unlicensed vehicle, and committed a crime of
crimen
injuria.
He
therefore continued in court to allege that he was well within his
rights to have arrested the applicant and to have detained
him.
[15]
During the court hearing I was told that all the relevant documents
including the crime docket, were completed by the Metro
policeman,
constable Sivayi, himself in his own handwriting. In the affidavit
filed by Sivayi in the docket, he does not mention
at all the issue
of bail and that he had refused bail. He completed the SAPS 3M form,
namely the docket and filed a SAPS 3MB document,
namely a statement.
He also completed the preamble to the statement to which his
affidavit was annexed. He also completed the SAP
21 form, namely a
report on the investigation of the crime dated 15 November 2009. He
completed the SAPS 6 check list as if he
was a serving SAPS member.
[16]
Constable Ramdroka who had accompanied Constable Sivayi also deposed
to an affidavit. This constable confirmed that the registration
of
the vehicle had expired. This turned out to be not true.
[17]
During argument it was submitted by the legal representatives of the
respondents, who also acted for the employees of the respondents
who
appeared in court in terms of my court order (they became
respondents), that the arrest was lawful.
I
may
mention here that the persons who were represented and who appeared
in court, and who therefore became parties to the proceedings
were
the following:
(a)
the
station commander of the Pretoria West police station, senior
superintendent Moodley;
(b)
his
assistant, superintendent Klopper, of the same station;
(c)
constable
Frans Moosa Sivayi, the Metro policeman responsible for the arrest;
(d)
the
deponent to the opposing affidavit filed, constable Mandla Steven
Ntsweni, of the same station;
(e)
the
complaints commander who was on duty ("aanklagbevelvoerder"),
captain Nhlazo, of the same station;
(f)
Inspector
Dulebu who took over from Captain Nhlazo that Sunday evening at
19h00, of the same station.
[18]
Dulebu, Nhlazo, Moodley and Klopper did not file affidavits, and did
not present any evidence, even after I invited the legal

representatives of the respondents to provide me with further facts
pertaining to the events at the police station. The applicant
also
declined to call any of these persons as witnesses.
[19]
I wanted clarification of the reasons why no member of the SAPS
considered the request for bail, considered the applicant's
position,
and why the complaints commanders, Nhlazo and Dulebu did not take any
action. I also wanted to know why the station commander
on duty at
the time did not do anything pertaining to the applicant's position.
[20]
I have no doubt that the applicant, his wife and the attorney, Mr
Meyer, requested bail to be granted and that it was refused.
There is
no reason whatsoever why I would have been approached at 23h00 on a
Sunday evening for the release of the applicant, if
nobody on behalf
of the applicant or the applicant himself had not asked for bail or
to be released. It is also totally and highly
improbable that the
applicant wanted to remain in custody for the night, as has been
suggested by respondents.
[21]
The fact that the abovementioned SAPS members refused to provide me
with this information, and the fact that the information
was
eventually not provided to me, or dealt with satisfactory in any
affidavits, confirm the conclusion that I have come to that
any
denial that there was a request for bail is so untenable and
far-fetched on the papers that it can be rejected out of hand
1
.
[22]
There was also no explanation given to me why the Metro police
officer completed all the tasks and functions of the SAPS after
the
arrest and after the applicant had been handed over to the Pretoria
West police station. Even though constable Sivayi was in
court, he
also did not wish to present me with any explanation of this aspect.
Not one of the SAPS members who deposed to affidavits
explained this
issue, and in fact, the issue only came up when I asked direct
questions to the legal representatives of the respondents,
in this
regard in open court. Even then the answers were not provided. In my
view therefore, there was a singularly lack of co-operation
on the
part of the respondents to provide this court with all the facts
pertaining to this matter. I must mention also that on
Tuesday, 17
November 2009, the names of the persons referred to above had not
been disclosed to me, as I had ordered. It was only
after I insisted
to be informed of the names and identities of these persons, that the
information was disclosed to me.
[23]
The applicant's counsel, Mr Bauer, submitted to me that the arrest
was unlawful, that the applicant was unlawfully detained,
and that I
correctly ordered the applicant to be released immediately. It
appears from the documents in the docket that the applicant
had not
been charged at all, and he had not been brought before any court.
THE
NATURE OF THE ALLEGED OFFENCES
[24]
Not one of the alleged criminal offences falls under schedule 1 of
the
Criminal Procedure Act, No 51 of 1977
. Apart from the
crimen
injuria
contravention,
the other contraventions are contraventions reflected in schedule 3
of the Act. Such contraventions are normally
dealt with in terms of
section 341
of the
Criminal Procedure Act. In
respect of the alleged
crimen
injuria,
it
must be pointed out that normal vulgar abuse will not be an offence
except when the circumstances are such that it can be regarded
as
serious.
[25]
in
State
v Lombard
2
a
traffic official was addressed loudly within the hearing of members
of the public in the main street of Mossel Bay by stating
to the
Metro policemen:
"Ag
fock-off man, jy is 'n lae donnerse vark."
In
that case, the accused was found guilty of the offence but his
sentence was R15,00 or fifteen days imprisonment.
2
1970
(2) SA 68
(K)
[26]
There is, however authority for the proposition that in certain cases
where the
injuria
is
of a trivial nature, the courts should acquit an accused
3
.
The principle that such a criminal offence has to be serious and not
trivial, was confirmed in S
v
Bugwanden
4
.
The
court stated that while
injuriae
of
a trivial nature should not engage the attention of the court, a real
and substantial impairment of a person's dignitas should
merit
punishment because it is in the interest of the State. The court has
to pass a valued judgment in regard to the reprehensibility
of the
offending conduct, viewed in the light of the principles of morality
and conduct generally accepted as the norm in society.
In that matter
the insult had a racial connotation. In a matter such as that, where
a policeman is insulted on a racial basis,
I am in agreement with the
conclusions the court came to in that matter. However, in this
matter, the offence does not seem to
me to be nearly as serious as in
the matters I have referred to above.
[27]
In S
v
M
5
the
accused was convicted and sentenced to six months imprisonment for
crimen
injuria,
which
also had a racial overtone. The appeal against the sentence was
allowed and the sentence was substituted with a fine of R200,00
and
failing payment, six months imprisonment. A further three months
imprisonment was suspended for a period of two years. I could
not
find any authority
for
crimen
injuria
warranting
a prison sentence of six months or more. The offence therefore seems
to me to have been a minor offence and possibly
one that could fall
under the maxim
de
minimis curat lex.
I
accept the explanation of the applicant that, because of the current
high rate of crime in South Africa, and as a result of the
fact that
criminals pretend to be law-enforcement officials to commit crimes,
it was justified for the applicant to have indicated
that he was
driving to the nearest police station.
THE
LAWFULNESS OF THE ARREST
[28]
Firstly the provisions of the Constitution of the Republic of South
Africa, Act 108 of 1996 must be considered. Section 35
thereof deals
with arrested, detained and accused persons. Section 35 (1) (d) of
the Constitution provides that everyone who is
arrested for allegedly
committing an offence, has the right to be brought before a court as
soon as reasonably possible, but not
later than 48 hours after the
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.
[29]
Section 35 (1) (f) provides that everyone who is arrested for
allegedly committing an offence has the right to be released
from
detention if the interests of justice permit, subject to reasonable
conditions. Section 35 (2) provides that everyone who
is detained,
has the right to challenge the lawfulness of the detention in person
before a court and, if the detention is unlawful,
to be released.
[30]
The provisions of the
Criminal Procedure Act, No 51 of 1977
should
therefore be considered against the background of these
constitutional provisions.
[31]
Arrest is one of the methods of securing attendance of an accused in
court. The other methods are summons, written notice and
indictment
in accordance with the relevant provisions of the
Criminal Procedure
Act
6
>.
[32]
Arrest is the most drastic method to secure a person's attendance at
his trial and it ought to be confined to serious cases.
It is a
serious restriction of an individual's freedom of movement and it may
also affect a person's dignity and privacy.
[33]
It is trite law that arrest should be effected only where it is
likely that a summons or written notice to appear will be
ineffective
7
.
[34]
Therefore a peace officer may have a right in terms of
section 40
of
the
Criminal Procedure Act to
arrest a person without a warrant but
it may not necessarily be the right procedure to follow. If a
summons
or written notice will be equally effective in bringing the accused
before the court, he should not be arrested for offences
of a less
serious nature
8
.
[35]
Section 40 provides for arrest by a peace officer, such as a Metro
policeman, without a warrant. It provides in section 40
(1) (a) that
a peace officer may without warrant arrest any person who commits or
attempts to commits any offence in his presence
9
.
[36]
There are various other grounds referred to in
section 40
which are
not applicable to this matter.
Section 40
(1) (b) for instance
provides that a person may be arrested without a warrant by a peace
officer whom he reasonably suspects of
having committed an offence
referred to in schedule 1. Not one of the offences in this matter are
offences referred to in schedule
1. Therefore the arrest in this
matter could only have been an arrest in terms of
section 40
(1) (a)
of the
Criminal Procedure Act.
[37
]
Section 59
of the
Criminal Procedure Act provides
that an accused who
is in custody in respect of any offence other than an offence
referred to in
part 2
or
part 3
of schedule 2 may, before his or her
first appearance in a lower court, be released on bail in respect of
such offence by any police
official of or above the rank of
non-commissioned officer, in consultation with the police official
charged
with
the investigation, if the accused deposits at the police station the
sum of money determined by such police official.
[38]
Section 59
is only applicable to crimes which are relatively speaking
fairly trivial. It is called in general "police bail", and

is something that occurs daily.
[39]
A police official must exercise a discretion after consultation with
the investigating official. In
MacDonald
v Kumalo
10
the
police officer empowered to grant bail went off duty at 17h00 and
bail could therefore not be granted during the evening. The
court
frowned upon that procedure and stated that the practice is certain
to lead to abuse and the holding of innocent members
for petty
offences who would have been released if the officer had been
present
11
.
[40]
In the light of the provisions of the Constitution, read with the
provisions of section 59, it is clear that an accused person
who has
been arrested for minor offences, for which bail may be granted in
terms of
section 59
of the
Criminal Procedure Act, has
a right to be
treated in such a way that he is considered for purposes of obtaining
bail in terms of
section 59
of the
Criminal Procedure Act as
soon as
possible. Obviously the same factors will have to be
taken
into account by such a police official as those applicable to normal
bail applications
12
.
[41]
Such a police official must take into account
inter
alia
the
purpose of bail. Bail is a procedure directed towards breaching the
right to freedom of an accused as little as possible. The
purpose is
to ensure the accused's appearance for trial
13
.
[42]
In
Louw
and Another v Minister of Safety and Security and Others
2006
(2) SACR 178
(T) Bertelsmann J considered arrest itself as a
procedure to secure a person's attendance at court. He dealt with the
issue and
the principles as follows:
"An
arrest is a drastic interference with the rights of the individual to
freedom of movement and to dignity. In the recent
past, several
statements by our Courts and academic commentators have underlined
that an arrest should only be the last resort
as a means of producing
an accused person or a suspect in court - Minister of Correctional
Services v Tobani
2003 (5) SA 126
(E) ([2001]
1 All SA 370)
at 371 f
(All SA);
'So
fundamental is the right to personal liberty that the lawfulness or
otherwise of a person's detention must be objectively justifiable,

regardless ... even of whether or not he was aware of the wrongful
nature of the detention.'
If
an accused or a suspect does not represent a danger to society, will
in all probability stand his trial, will not abscond, will
not harm
himself and is not in danger of being harmed by others and may be
able and be keen to disprove the allegations against
him or her, an
arrest will ordinarily not be the appropriate way of ensuring the
accused's presence: see S v
Van
Heerden en Ander Sake
2002 (1) SACR 409
(T). In Ralekwa v Minister of
Safety and Security
2004 (1) SACR 131
(T)
(2004 (2) SA 342)
, my
Sister, De Vos J, dealing with a similar issue, underlined the
following:
'It
is trite law that an arrest is prima facie wrongful and unlawful. It
is for the defendant to prove that the arrest was lawful'.
The
pre-constitutionai approach by our courts and our law enforcement
authorities is reflected by Schreiner JA in Tsose v Minister
of
Justice and Others
1951 (3) SA 10
, in the Appellate Division, at
17G-H:
'An
arrest is, of course, in general a harsher method of initiating a
prosecution than citation by way of summons but if the circumstances

exist which make it lawful under a statutory provision to arrest a
person by means of bringing him to court, such an arrest is
not
unlawful even if it is made because the arrestor believes that arrest
will be more harassing than summons. For just as the
best motive will
not cure an otherwise illegal arrest so the worst motive will not
render an otherwise legal arrest illegal...
What
I have said must not be understood as conveying approval of the use
of arrest where there is no urgency and the person to be
charged has
a fixed and known address; in such cases it is generally desirable
that a summons should be used. But there is no rule
of law that
requires the milder method of bringing a person into court to be used
whenever it would be equally effective.'
This
passage is commented upon by my Sister, De Vos J, as follows:
The
question is whether, in view of the fact that we now have a
Constitution that restricts the exercise of public power through
a
justiciable Bill of Rights, the last statement of the quotation can
be correct. There can be no doubt that an examination into
the
lawfulness of an arrest against the backdrop of a statement that
there is no rule of law requiring the milder method of bringing
a
person into court will be different from an enquiry which starts off
on the premise that the right of an individual to persona!
freedom is
a right which should be jealously guarded.
I
am of the view that the demands of the constitutional State must be
taken into account when applying the general test in cases
such as
these.'
In
the factual context of that case, De Vos J was required to do no more
than to state this as a general principle. I am of the
view that the
time has arrived to state as a matter of law that, even if a crime
which is listed in Schedule 1 of Act 51 of 1977
has allegedly been
committed, and even if the arresting police officers believe on
reasonable grounds that such a crime has indeed
been committed, this
in itself does not justify an arrest forthwith.
An
arrest, being as drastic an invasion of personal liberty as it is,
must still be justifiable according to the demands of the
Bill of
Rights. Nowhere has the need for justification of government action
or administrative action been better described as in
the oft-quoted
article by the late Etienne Mureinik 'A Bridge to Where?: Introducing
the Interim Bill of Rights'
(1994) 10 SAJHR 31.
On page 32 the
following is said:
'What
the bridge is from a culture of authority. Legally, the apartheid
order rested on the doctrine of Parliamentary sovereignty.

Universally, that doctrine teaches that what Parliament says is law,
without the need to offer justification to the courts. In
South
Africa, since Parliament was elected only by a minority, the doctrine
taught also that what Parliament said was law, without
a need to
justify even to those governed by the law. The effect of these
teachings, at the apogee of apartheid, was to foster an
ethic of
obedience. The leadership of the ruling party commanded Parliament.
Parliament commanded its bureaucracy, the bureaucrats
commanded the
people...
If
the new Constitution is a bridge away from a culture of authority, it
is clear what it must be a bridge to. It must lead to a
culture of
justification - a culture in which every exercise of power is
expected to be justified; in which the leadership given
by government
rests on the cogency of the case offered in defence of its decisions,
not the fear inspired by the force at its command.
The new order must
be a community built on persuasion, not coercion. If the new
Constitution is to be a bridge in this direction,
it is plain that
the Bill of Rights must be its chief strut. A Bill of Rights is a
compendium of values empowering citizens affected
by laws or
decisions to demand justification.'
A
very instructive article on the exercise of the power to arrest by
Olive Flasket, under the heading 'Controlling the discretion
to
arrest without warrant through the Constitution' appears in
Suid-Afrikaanse Tydskrif vir Strafregspleging (11) 1998 at 173.
On
page 194 the learned author says:
The
fundamental rights to freedom and to justifiable administrative
action have, by rendering the offending part of Tsose's case

redundant, placed the discretion to arrest on the same footing as the
exercise of any other discretionary power. In the context
of the high
premium placed by the Constitution on the rights to human dignity and
to freedom, that is important: the courts are
now provided with the
means to protect these rights effectively (having failed to develop
meaningful safeguards themselves), thus
ensuring that the drastic
power of arrest without warrant is controlled by the full spectrum of
the principles of legality, procedural
propriety and rationality.
This is not as radical a departure as some may imagine; after all,
the idea of justifiability, principally
articulated through a duty to
consider less drastic alternatives, is part of the police standing
orders, which bind every police
official in the exercise of his/her
duties and functions. Despite this, there may be those who perhaps,
in claiming to champion
the war against crime, appear to believe that
the police should be freed of legal constraints. No one would suggest
that the level
of crime in our country is not an extremely serious
problem. It is obvious that decisive steps have to be taken to
address the
problem. On the legal level the answer lies in convicting
and sentencing criminals in fair trials. For the police that means
improving
their capacity to detect crime and investigate criminals in
fair trials. For the police that means improving their capacity to
detect crime and investigate offences. It goes without saying that
this should be done within the framework of the Constitution...
The
power to arrest plays a minor role in the endeavour to combat crime:
it is merely a means, and only one of a number of means,
to initiate
the process of prosecution. An increase in the number of arrests may
not be an indication that the war against crime
is being won, it may
instead be an indication that our constitutional rights and freedom
are being devalued.'
What
these statements mean is that the police are obliged to consider, in
each case when a charge has been laid for which a suspect
might be
arrested, whether there are no less invasive options to bring the
suspect before the court than an immediate detention
of the person
concerned. If there is no reasonable apprehension that the suspect
wilt abscond, or fail to appear in court if a
warrant is first
obtained for his/her arrest, or a notice or summons to appear in coud
is obtained, then it is constitutionally
untenable to exercise the
power to arrest. Before an arrest can lawfully be exercised, the
reasonable suspicion that a Schedule
1 crime has been committed must
be considered by a reasonable investigating officer, and it must be
considered whether the suspect
will attend the court hearing if
summonsed or warned. Only if there are reasonable grounds to suspect
that the suspect will abscond
if an application for a warrant is
first made may the power contained in s 40 of Act 51 of 1977 be
exercised. I do not believe
that this places an undue burden on the
police. It requires no more than an honest exercise of their duties.
If they bona fide
fear that a suspect will evade justice, then an
arrest is obviously the correct option. But, by the same token, this
test makes
an arrest ultra vires when exercised against a suspect
under circumstances where the suspect is perfectly willing to come to
court
on warning, on notice or summons. “
14
[43]
The Constitution places a very high premium on the right to human
dignity and freedom. It is essential that the courts should
protect
these rights in the most effective way possible. The level of crime
in South Africa should not justify a departure from
the democratic
and constitutional principles enshrined in our
Constitution,
safeguarding
the population from any excess use of power and deprivation of
freedom by government institutions and authorities.
[44]
The spirit of the Constitution, the recognition of basic human
rights, and the right to freedom in particular, enshrined in
the
Constitution should not be compromised in any way whatsoever through
the actions of government officials.
[45]
The courts should therefore jealously guard these rights and act
decisively upon the infringement thereof. Furthermore it is
important
that those who act with impunity, and who think that they can do as
they please, simply because they have the force of
the whole law
enforcing system behind them, should be brought to book and
restrained. The whole wrath of the legal system, the
rule of law, the
courts and the public should be brought upon such officials.
[46]
It does not appear from the huge amount of damages claims instituted
against the second respondent, the Minister of Safety
and Security,
that a damages claim constitutes a deterrent of any nature whatsoever
in respect of unlawful behaviour on the part
of the security forces.
In fact, the only party being prejudiced as a result of damages
claims based on unlawful arrest and detention,
is the taxpayer, and
therefore the public, who also bears the brunt normally of unlawful
actions by the police services. It is
in fact those who expect that
the hard fought and precious rights to freedom, dignity and not to be
detained unnecessarily, should
be upheld and enforced, who eventually
have to pay for the breach of these rights, by state officials mostly
acting with impunity.
[47]
It is ironic further, that those who sometimes are subjected
themselves to such unlawful breach of the aforesaid rights, form
part
of the taxpayers who have to pay in the form of damages for such
breaches. In my view other possibilities should be considered
to
deter police services and metro police services from breaching the
enshrined rights held dear by everybody in this country.
The public
must be protected.
[48]
Therefore, if a preferable method of an accused's attendance is
through a summons, that procedure should be employed. In this
regard
the risk of the suspect abscondering or committing further crime
should be considered. An arrest without any rational reasonable
basis
therefor should not occur indiscriminately.
[49]
It does not matter how severe the alleged criminal offence may be.
The person to be arrested is still an innocent person whose
right to
freedom, dignity and right to fair treatment should be upheld.
[50]
I therefore come to the conclusion that the arrest in this matter was
unlawful. His detention in the holding cells at the Pretoria
West
police station was therefore also unlawful.
[51]
As I have mentioned above, those responsible for consideration of
granting the applicant bail refused to do so. It follows
that the
applicant was held unlawfully and detained unlawfully at the Pretoria
West police station.
[52]
From Roman law times the right of liberty and freedom of a free man
was recognised as being a right that must be protected.
In Voet 43.29
the interdict
de
libero homine exhibendo
was
recognised as a remedy. It must be remembered that Voet wrote mostly
about Roman law and not Roman-Dutch law
15
.
However there are comments made by him about Roman-Dutch law in his
writings. Gane in the "Selective Voet" refers to
the
interdict as the Roman-Dutch version of the English writ of habeas
corpus. This principle (both the Roman-Dutch interdict and
the
English writ) had been applied in certain older South African
decisions
16
.
THE
BASIS FOR THE RELIEF
[53]
In
Wood
and Others v OndwangaTribal Authority and Another
1975
(2) SA 294
(AD) the court said the following pertaining to the
abovementioned interdict at 31OD to 311E:
"Although
the position is that in Roman-Dutch law no private person can proceed
by a popular action as such, it is clear that
the interdict de libero
homine exhibendo is part of our law, and it only remains to be
considered at whose request a Court will
issue the interdict.
Basically, the cause of action is sui generis because not only was
the right to freedom protected by it but
'it is set in motion as a
matter of duty'. In this respect it would appear to be
distinguishable from any of the other actions
popularis. Voet 43.29,
says that in favour shown to freedom the interdict is granted to
anyone among the people (cuivis ex populo).
That indicates, in my
view, that he had in mind the action popularis. Nevertheless, I think
it follows, from what I have said above,
that although the actions
populares generally have become obsolete in the sense that a person
is not entitled 'to protect the rights
of the public', or 'champion
the cause of the people' it does not mean that when the liberty of a
person is at stake, the interest
of the person who applies for the
interdict de libero homine exhibedo should be narrowly construed. On
the contrary, in my view
it should be widely construed because
illegal deprivation of liberty is a threat to the very foundation of
a society based on taw
and order. As is stated in the (Jtrechbtse
Consultatien XCIII, 3, in relation to the arrest of a debtor:
'Ende
alle arresten zijn odieus, verboden en de beschreven rechten
contrarie...'
unless
expressly allowed by statute.
In
regard to the habeas corpus of the English law, Halsbury, Laws of
England,
3
rd
ed,
vol 11, p 37, inter alia, states the following:
'Any
person is entitled to institute proceedings to obtain a writ of
habeas corpus for the purpose of liberating another from an
illegal
imprisonment, and any person who is legally entitled to the custody
of another may sue out the writ in order to regain
that custody. In
any case where access is denied to a person alleged to be
unjustifiably detained, so that there are no instructions
from the
prisoner, the application may be made by any relation or friend on an
affidavit setting forth the reasons for its being
made.
A
mere stranger or volunteer, however, who has no authority to appear
on behalf of a prisoner or right to represent him will not
be allowed
to apply for habeas corpus.'
I
do not wish to deal with the definition of a "friend" in
our law. It would seem to me, however, that if a person who
has
neither kith nor kin ion this world is illegally deprived of his
liberty, and a person who comes to hear of this were to apply
for an
interdict de libero homine exhibendo, he could hardly fail to be
considered the prisoner's friend, unless, of course, one
holds the
view that the good Samaritan did not have the attributes of a friend.
It
is useful, perhaps, to compare the position in our law with that in
the American law. According to American Jurisprudence, 2
nd
ed, vol 39, the habeas corpus laws
'should
receive a liberal construction, in disregard, if need be, of the
technical language used and should always be construed
in favor of
the liberty of the citizen".
In
para 11 it is stated:
The
writ is not and never has been a static, narrow, formalistic, remedy.
Its scope has grown to achieve its purposes - the protection
of
indivuals against erosion of the right to be free from wrongful
restraints on their liberty."
In
para 117 there are the following remarks:
'As
a general rule a person who applies for a writ to secure the release
of another must show some interest in the person or some

authorisation to make the application. According to some authority a
mere stranger, or volunteer, having no authority derived from
the
person detained or the legal right to the custody of such a person,
has no right to a writ of habeas corpus to obtain the discharge
of
such person from custody, but there are cases in which the writ has
issued on the application of a stranger of voltunteer who
bore no
legal relation to the person in custody, or who was actuated solely
from humanitarian motives.'
Para
117 also contained the following:
But
it has been said that a person may apply for habeas corpus for
another if he sets forth in the application a reason or explanation

satisfactory to the Court showing why the detained person does not
make the application himself.'
[54]
There is no doubt therefore that this principle still forms part of
our law and that such an application can be brought. That
was also
the basis of the application brought by the applicant in this matter.
It therefore follows that the application was brought
on the basis of
the abovementioned interdict and I am therefore satisfied that the
relief was correctly granted. The interdict
referred to above has
also been applied in numerous cases after the
Wood
case
referred to above
17
.
[55]
The interdict was also considered in
Kauluma
and Others v Minister of Defence and Others
1984
(4)
SA
59
(SWA)
as
follows on page 64:
"As
already stated this is an application for an interdict de libero
homine exhibendo, which is analogous to the English writ
of habeas
corpus. It is an action sui generis, and is fundamental to every
civilised system of law. It protects the right of every
person
against an illegal deprivation of his personal liberty and asserts
the right of a competent Coud to protect the right of
any person to
his personal liberty. This principle was already established in 1879
in the case of In re Kok and Others (1879) Buch
45. In re Cakijana
and Others
[1927] LKCA 15
;
(1908) 29 NLR 193
, Bale CJ in the course of his judgment
referred to Kok's case supra and stated:
In
the case of Sigcau v The Queen 12 Juta 256 De Villiers CJ said: 'The
right of every inhabitant to protection against any illegal

infraction of personal liberty has been clearly established by the
case of Kok v The Queen. In the course of his judgment he asserted
in
no doubtful terms the right of the Court to interfere to protect
against the illegal interference with the rights of personal
liberty,
and asserted that it is the duty of the civil courts to administer
the laws of the country without fear, favour or prejudice,

independently of the consequences which may ensue...'
This
quotation was approved and followed by Rumpff CJ in Wood's Case supra
at 309-310.
During
the course of the argument the question was raised and debated as to
the proper procedure to be adopted. Mr Kentridge (and
Mr Chaskalson
in reply) submitted that once a person is held in detention he is
entitled to approach the Courts for an interdict
de libero homine
exhibendo as long as he advances a prima facie case that he is
illegally detained (see Christian League of Southern
Africa v Rail
1981 (2) SA 821
(o)) and that in such a case the Court would grant an
interim interdict resulting in the production of the person detained
before
the Court, and the question of the legality or otherwise would
then be determined on the return day."
[56]
It is important to note that the Appellate Division in
Kabinet
van die Tussentydse Regering vir Suid-Wes Afrika en 'n Ander v Katofa
1987
(1) SA 695
(A) indicated quite clearly that the interdict should not
be confused with the
habeas
corpus
principle
of English law. It confirmed that the principle is a pure Roman-Dutch
law principle that became part of South African
law, and that the
English law of
habeas
corpus
was
not incorporated into South African law. To the extent that the
English remedy seeks to achieve the same as the Roman-Dutch
remedy
nothing turns on this issue. In this matter it makes no difference
which remedy is applicable
18
.
[57]
It was therefore on this basis that the application was brought and
the relief was granted. I have no doubt that in the light
of my
finding
referred
to above, that there were sufficient grounds for the interdict to be
granted and the order is therefore confirmed.
[58]
in
SA
Commercial Catering and Allied Workers Union and Another v Lehapa NO
and Another (Mostert NO intervening)
2005
(6) SA 354
(W) the court said the following about granting a costs
order once all parties are properly before the court:
"[11]
Although it may be correct that a Court is not empowered to grant
costs for or on behalf of a pady not before it, this
does not mean
that a Court is not empowered to make a costs order once all the
parties are properly before Court (compare, for
example, the approach
adopted in Holmes and Another v Lawrie
1927 AD 535
at 536). In First
National Bank of Southern Africa Ltd t/a Wesbank v First East Cape
Financing (Pty) Ltd
1999 (4) SA 1073
(SE), the Court, in dealing with
what are referred to as pre-iitigation costs", rules that
nothing precluded a litigant, after
having laid sufficient facts
before the taxing master, from claiming pre-litigation costs.
Mbenenge AJ in this regard held as follows
at 1077F-G:
'It
has been held that where, as in the present matter, papers are
prepared for an application to the High Court but not issued
because
a demand concerning the matter in dispute was complied with by the
other party subsequently to expiry of the date of the
demand but
before the completion of the papers relating to the application,
damages amounting to the costs payable by the applicant
to his
attorney cannot be claimed from the respondent and that the correct
remedy is to proceed with the application in regard
to costs only and
obtain an order in regard thereto and then proceed to tax a bill (see
Behm v Ord
1953 (4) SA 96
(C)).
And
at 1080E-G:
"In
sum,
I
find
that in the event of an applicant incurring costs in preparation of
an application, and against a respondent who is put to
terms but
steadfastly refuses to concede the applicant's entitlement until
after the application has been prepared, but not issued,
the intended
applicant is entitled, on demonstrating that it would have been
successful in the intended application, to an order
of costs
reasonably incurred. None of the authorities which Mr Scott referred
me to seem to assaii this view. A party must pay
such costs as have
been unnecessarily incurred through his failure to take proper steps
or through his taking wholly unnecessary
steps (see De Villiers v
Union Government (Minister of Agriculture)
1931 AD 206
at 214)'.
[12]
In my view, I need only determine whether the intervening party has
demonstrated that he would have been entitled to intervene
and, in
doing so, had incurred costs which became wasted by virtue of the
applicant's decision to withdraw the application. See,
in this
regard, the judgment of Van Reenen J in Reuben Rosenblum Family
Investments (Pty) Ltd and Another v Marsubar (Pty) Ltd
(Forward
Enterprises (Pty) Ltd and Others Intervening)
2003 (3) SA 547
(C).
There is also, in principle, no difference between the approach
applied by Van Reenen J in Rueben (supra) and the approach
adopted by
Ru,mpff JA in Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk
1972 (1) SA 773
(A). Rumpff JA quoted (at
785A) with approval from Moon and Another v Hoare
1918 NPD 401:
'Mr
Lister, knowing that the application for the surrender had been set
down for the following day, although technically there was
nothing
before the Court because it had been withdrawn, came into Court on
the Tuesday upon an affidavit asking for costs. That
was a perfectly
natural thing to do'.
He
referred also (at 785A-C) to the approach adopted in In re Israel
1936 NPD 548:
'In
In re Israel
1936 NPD 548
het Israel kennis gegee dat hy op 'n
bepaalde dag aansoek sou doen om sy boedel oor te gee. Hy dien geen
stukke by die Hof in nie
en hyself verskyn ook nie op die
geadverteerde dag nie. 'n Skuldeiser verskyn op die betrokke dag en
vra sy koste. Waarnemende
Regter Carlisle verklaar oa:
"In
these circumstances, Mr Clark asks that an order for the costs to
which his client has been should be granted against the
debtor. It
seems to me that that is a proper request. The creditor has appeared
in answer to
a
statutory
notice in order to oppose the surrender. His opposition is rendered
futile because at the last minute the petition has
not been filed,
but he is nevertheless entitled to his costs, and I make an order to
that effect."
Na
my mening het die appellant in die onderhawige saak die korrekte en
mees praktlese prosedure gevolg om met kennisgewing
van
mosie die feite voor die Hof te le, en moes sy aansoek toegestaan
gewees net'
[59]
I must point out that in this matter the persons against whom I am
considering giving a costs order
de
bonis propriis,
were
brought before court, they were identified as parties, and they were
all represented by the state attorney and counsel. I have
therefore
no hesitation or doubt that I may make a costs order against them if
it is warranted.
COSTS
[60]
In the light of the aforegoing it is necessary to consider the issue
of costs in this application. I have given an indication
to the
representatives of the officials who were involved in this matter
that I will consider granting costs
de
bonis propriis
against
the named officials. I have also been requested by the applicant to
do so. They are the persons who became parties to the
proceedings and
in fact who became respondents through the proceedings as referred to
above. In fact, those who were on duty at
the time and who would have
been responsible for dealing with the applicant, as well as Constable
Frans Moosa Sivayi, the Metro
policeman who effected the unlawful
arrest, are the parties who will be considered to be ordered to pay
costs
de
bonis propriis.
The
real investigating officer, Constable Mandla Steven Mtsweni was not
involved to the extent that he participated in the unlawful

detention.
[61]
In various categories of matters costs
de
bonis propriis
have
been awarded against employees or representatives of a corporate or
institutional party to litigation.
19
[62]
In
Umvoti
Council Caucus and Others v Umvoti
Municipality
20
the question arose whether certain councillors who were cited as
respondents in an application and who opposed the application,
which
arose out of conduct which purported to be resolutions taken by the
municipal council, could have been ordered to pay the
costs of the
application. It was argued on appeal that councillors were
indemnified against the costs order in the light of the
provisions of
section 28
of the
Local Government: Municipal Structures Act, 117 of
1998
, because the resolutions which were set aside fell squarely
within the ambit of that section. The court considered that the
requirements
for protection of the specific section were not met and
that the respondents did not act in an official capacity when the
resolutions
were taken. It therefore came to the conclusion that the
court a
quo's
exercise
of its discretion by making the costs order against the councillors
personally was not improper, and it was upheld.
[63]
A jurisdictional fact required to trigger the common law principle
pertaining to protection of persons in the position of municipal

councillors, is that the person to be held liable must have acted in
an official capacity at the time the actions complained of
were
taken, If not, such immunity cannot be claimed.
[64]
Reference was made to the case of
Swartbooi
and Others v Brink and Others
21
2006
(1) SA 203
(CC) where the High Court originally issued a
rule
nisi
requiring
individual councillors who had supported impugned resolutions, to
show cause why they should not pay costs
de
bonis propriis.
In
that matter they had no other choice but opposing the confirmation of
the rule
nisi
granted
if they wanted to avoid paying costs. In that matter it was also
found that the councillors had acted lawfully and in an
official
capacity. In the
ANC
matter
referred to above all of the councillors of the municipality were
joined as respondents, and no costs order was sought against
them
unless they chose to oppose the application. The basis of seeking a
costs order was therefore their opposition to the application.
They
chose to oppose the application. In such a matter they are bound to
undertake the responsibility of liability for costs. The
court said
the following pertaining to the issue of costs in the event of such
an opposition, at paragraph 42 of the judgment:
"The
effect of what the second and ninth appellants say the court a quo
should have done, to make the respondent bear
the
costs, would be to burden the rate payers they are elected to serve
with the legal costs needlessly incurred by them. I cannot
concede
that such an approach would be justified. The burdening of the
appellants with costs cannot therefore be attacked on the
basis of an
improper exercise of the discretion of the court a quo.
In
this regard the court relied on
Alexander
v Boksburg Municipality and Jones
1908
TS 413
at 419 where the following was said about a case where a town
council opposed an application for setting aside of a licence granted

by it:
"With
reference to the town council, they are a body who have perforce to
decide matters of this kind. If they had done nothing
but state that
they gave their decision bona fide, and would submit to any order the
court might make, I should have had considerable
difficulty in
awarding costs against them because they are not litigants in the
ordinary sense of the word: they have no direct
interest in the
matter.... As a matter of fact they took upon themselves the position
of an ordinary respondent, and instructed
counsel to oppose the
application. Having in a matter of this kind, of a civil nature,
taken upon themselves the opposition, they
are bound to undertake
responsibility of that position, namely, liability for costs."
[65]
The abovementioned authorities are quoted for the proposition that a
government official in a particular position, can be ordered
to pay
costs
de
bonis propriis
under
certain circumstances as a result of such an official's actions, and
in particular where the actions of the official were
unlawful and
where it caused the litigation and the costs in respect thereof. That
is particularly so where relief that is sought
as a result of such
actions, is opposed by such individuals, which should never have been
opposed.
[66]
The decisions are also quoted for purposes of support pertaining to
the argument that the taxpayer should not be the liable
party to pay
for unlawful, indiscriminatory and illegal actions committed by
government officials. I have already referred to the
extent of
damages claims that are instituted yearly against the first and
second respondents and the costs involved in respect
thereof, which
must be carried by the tax payer. Government officials who act with
impunity cannot simply, and should not be allowed
to do what they
please, and thereafter be exonerated from their actions because of
the fact that the relevant government institution
is held responsible
for payment of damages and the costs caused by their unlawful
actions.
[67]
In
Miatsheni
v Road Accident Fund
2009
(2) SA 401
(E) the Eastern Cape Provincial Division dealt with a
matter where the Road Accident Fund raised spurious defences which
had not
been mentioned in the pleadings and where no evidence was
presented upon which the defences could have been based. By so
frustrating
the legitimate claim of a plaintiff, the employee of the
fund who gave the defendant's legal representatives instructions, was
found to have acted in violation of the Constitution. His actions
fell short of what is expected of public administrators in section

195 of the Constitution of the Republic of South Africa, Act 108 of
1996.
[68]
Plasket
J
considered
granting costs
de
bonis propriis
against
the said employee. He said the following in paragraph 18 of the
judgment:
"It
is also necessary to state that, in my view, if this type of conduct
continues, the time may well have arrived for orders
of costs de
bonis propriis to be awarded against employees of the defendant to
give instructions that have the effect of frivolously
frustrating
legitimate claims."
[69]
In
Bovungana
v Road Accident Fund
2009
(4) SA 123
(E) a costs order was granted on an attorney and client
scale
de
bonis propriis
against
the Fund's officials. The court stated in that matter that the Fund
had paid no heed to the many judgments in the relatively
recent past
in which the court had expressed concern about the conduct of the
Fund and in particular the conduct of employees of
the Fund who gave
instructions that had the effect of frivolously frustrating
legitimate claims. The court found that the explanations
by Fund
officials revealed incompetence and dishonesty and that they had
acted recklessly. They were ordered to pay costs personally.
[70]
This is a further indication that the courts will consider granting a
costs order
de
bonis propriis
against
officials of a government entity or institution, that act in a way
that justifies such a costs order. Actions that cause
unnecessary
litigation and costs, that are unreasonable, reckless and dishonest,
will justify costs orders
de
bonis propriis.
[71]
One of the reasons for granting the order in the abovementioned
decision was that the Fund had a callous disregard for its
primary
responsibility to administer the public funds under its control, in
the interests of road accident victims. It was taxpayers
funds that
were squandered unnecessarily and unjustifiably.
[72]
In
Tshona
v Principal Victoria Girls High School and Others
2007
(5) SA 66
(E) a guardian was ordered to pay cost
de
bonis propriis
when
assisting a minor in litigation, on the basis that the guardian acted
mala
fide,
unreasonably
and negligently
22
.
[73]
In
Ntuli
v Zulu and Others
2005
(3) SA 49
(N) the court considered a costs order
de
bonis propriis
against
a judicial officer where the judicial officer's conduct was
mala
fide,
where
he had conducted himself maliciously and where there had been a gross
illegality in the case. The court came to the conclusion
that such a
costs order can be awarded only if it can be said that the judicial
officer had acted
mala
fide
or
with manifest bias
23
.
[74]
In
Venbor
(Pty) Ltd v Vendaland Development Company (Pty) Ltd t/a Campstore
1989
(2) SA 619
(V) consideration was given to ordering directors of a
company to pay costs
de
bonis propriis
when
they acted frivolously and in total disregard of the rights of the
applicant in litigation proceedings
24
.
Costs
de
bonis propriis
have
also been granted against a party who acts in a representative
capacity without making provision for the defendant's costs
and
without certainty that he will be successful
25
.
[75]
The standard categories in respect of which costs
de
bonis propriis
have
been considered and ordered, are parties who act or litigate in
representative capacities such as executors, trustees
26
,
judicial officers, trustees of insolvent estates, persons litigating
on behalf of companies, administrators
27
and even insolvents
28
.
[76]
As
Plasket
J
has
said in the decision quoted above, the time has come to consider
costs orders
de
bonis propriis
against
public officials acting in bad faith and causing unnecessary legal
costs and
litigation,
for their opponents, for the general public and for taxpayers.
[77]
In
Pillay
v Licencing Officer Umkomaas and Another
1930
NLR 111
a
mandamus
was
granted against the respondent to issue a dealers licence to the
applicant. It was held that the power that was exercised originally

to refuse the licence, was exercised fraudulently.
[78]
This case was referred to by
Clive
Plasket,
then
an associated professor of Rhodes University, Grahamstown, in an
article entitled
"Protecting
the Public Purse: Appropriate Relief and Costs Order Against
Officals"
published
in the 2000 South African Law Journal page 151.
[79]
He posed the problem arising from the abovementioned
Pillay
case,
as follows in his article:
"2.
THE PROBLEM
Dove-Wilson
JP was rather restrained on his description of the conduct of the
five members of the town board. One can think of any
number of terms
stronger than 'extraordinary' and "tainted by want of good
faith' to describe what they did. In these circumstances,
it strikes
one as unfair that the applicant's costs would have been paid not by
the five dishonest members but the town board.
In other words, the
ratepayers of Umkomaas would have had to foot the bill for the crass
attempt by the five to deny the applicant
his licence to trade. And
that is not all they would have to pay for: they would also have had
to pay the costs of the vain attempt
by the respondents to oppose the
application."
[80]
Plasket
refers
to decisions where public officials were found guilty of bad faith
and where costs
de
bonis propriis
were
granted against them. In these cases the
mala
fide
actions
of a public official caused the cost orders to be granted
29
.
[81]
Plasket
argues
that the new Constitution created certain rights for the public and
placed certain obligations on public officials. He refers
to section
195 (1) of the Constitution that sets out the basic values and
principles governing public administration, which requires
inter
alia
a
high standard of professional ethics that must be promoted and
maintained. Furthermore efficient economic and effective use of

resources must be promoted. Services must be provided impartially,
fairly, equitably and without bias. These principles must be
applied
throughout government on all levels. He also referred to section 237
of the Constitution in this regard, as well as various
rights set out
in the bill of rights, Chapter 2 of the Constitution.
[82]
He also refers to section 38 of the Constitution that creates a
right to approach a competent court where it is alleged
that a right
in the bill of rights has been infringed or threatened, and which
provides
that
the court may grant appropriate relief, including a declaration of
rights.
[83]
He then argues that appropriate relief, with reference to the
Constitution, where there is a breach of a fundamental right,
should
be to vindicate the Constitution and to deter its further
infringement. Such appropriate relief should act as a deterrent

against further violations of rights enshrined in the Constitution
30
.
He then argues that punitive costs orders, such as costs
de
bonis propriis
against
public officials who act
mala
fide,
fraudulently
and in breach of their Constitutional obligations, can in appropriate
cases be regarded as appropriate relief.
[84]
For international authority he referred to the decision of
Re
West Nissouri Continuation Board
(1970)
38
Ontario
Law Reports
207.
In that matter the members of a municipal council had refused to
appoint persons to vacant positions on the board of trustees
of a
school as they were obliged to do in terms of a statute. An
application was made to compel the council to make the appointments.

A
mandamus
was
issued but the council has appealed.
[85]
The issue in the matter was described as follows on page 210 of the
judgment:
"Without
canvassing in detail the somewhat complicated facts in this
much-litigated matter, I am compelled to the conclusion
that the
township council should forthwith appoint new trustees of the school
board in question so as to enable that board, when
thus completed, to
deal with the present urgent situation existing as to the
continuation school in question.
Unless
therefore by Monday next, the 2
nd
October, the said Township Council for the Township of West Nissouri
so fill the vacancies in the said board by the election of
new
trustees, the order will go so asked. I will make no disposition of
the costs of the motion until after the date named.
The
order issued directed that Richard Fitzgerald, Reeve of the Township
of West Nissouri, and W F McGuffin, James Smibert, William
Wiseman,
and John Pardy, councillors, and the township council should
forthwith fill the vacancies in the Board caused by the resignation

of Fitzsimmons, McGuffin and Wheaton."
[86]
The court described the actions of the appellants in that case,
namely the councillors who had refused to act in accordance
with
their constitutional and statutory obligations, and who had taken a
technical point in the litigation opposing the court application,
as
follows on page 211:
"There
is also imposed upon the head of the council, who is one of the
appellants, the statutory duty: to "be vigilant
and active in
causing the laws for the government of the municipality to be duly
executed and obeyed and to 'oversee the conduct
of all subordinate
officers in the government of it, and, as far as practicable, cause
all negligence, carelessness, and violation
of duty to be prosecuted
and punished: and he, as well as each of his fellow-members of the
council, and co-appellants to this
appeal has made the
statute-imposed declaration in which he has solemnly promised and
declared that he will truly, faithfully and
impartially, and to the
best of his knowledge and ability perform the duties of his office:
The Municipal Act, RSO, 1914, eh. 192,
sees 215, 242 and 193."
[87]
In the judgment of appeal by
Riddel
J
the
matter was explained as
follows
on pages 216 to 217 of the judgment:
"We
are all of opinion that the whole trouble has been caused by the
foolish (I use no harsher word) conduct of the members
of the
township council, who seem to have imagined that their silly evasion
of the order of the Court would be accepted as an honest
attempt to
obey it. For this they are personally to blame, and they must suffer
the legitimate consequences of their folly.
It
is said - and it is not unlikely - that their opposition to the
school is its accord with the wish of the vast majority of the

ratepayers; but it cannot be too strongly stated and firmly insisted
upon that an order of the Court must be obeyed, however unpopular
it
may be.
In
our system there is no union of powers, legislative, administrative,
and judicial, in one person - we divide and limit power.
In its own
sphere the electorate is supreme and must have the council or
parliament it desires - the council or parliament when
elected is
supreme in its own domain, and no Court can interfere with (say) a
township council acting in good faith within the
ambit of its powers.
The
Court is charged with certain duties also - and it also is supreme
within its jurisdiction. When a Court makes an order within
its
jurisdiction, it is the duty of every person affected by it to obey
and to obey loyally. It is not a matter for a vote or an
issue at an
election whether to obey or not; the Constitution has made the Court
the final authority: unless and until Parliament
enacts otherwise
(and Parliament is all powerful in that regard), no one is allowed to
exercise private judgment or follow what
he believes to be public
opinion by wilful disobedience.
The
wrongdoing here was that of the individuals, and they cannot hide
behind a majority of the ratepayers.
Nor
can they be allowed to use public money to pay for the results of
their own misconduct - it is too often forgotten that the
levying of
taxes is an interference with private rights of property; that,
consequently, taxes should not be levied except for
public purposes,
and that, when levied, they are charged with a trust for such
purposes. A municipality is not a complainant benefactor,
a fairy
godmother, to lavish gifts indiscriminately - the Legislature defines
the objects upon which money raised from the people
by taxes can be
spent - and so far not one of these can fairly be said to include
paying for disobedience to a lawful order. The
township's money is in
no very remote sense the money of all the ratepayers, and the money
of not even 15 or 5 or one per cent,
is to be used in disputing an
order the obedience of which they desire and to the obedience of
which they are entitled.
The
individual members of the council will indemnify the township against
all costs, repaying to the township all costs, between
solicitor and
client, and all costs the township is obliged to pay. The respondents
are to have all their costs payable by these
individuals (or, if more
convenient, by the township in the first instance)."
[88]
Plasket
argues
that South African courts will have inherent jurisdiction to issue
costs orders similar to the one referred to above. He
argues that
that type of costs order would probably be best suited to a more
easily justifiable vindication for constitutional
rights where the
public interest in relief such as this is often obvious and apparent.
He argues that such an order may amount
to appropriate relief for
purposes of section 38 of the Constitution, when unconstitutional
administrative conduct is of such an
order of bad faith that it does
not only harm the individual against whom it is primarily directed,
but also impedes the fuller
realisation of our constitutional
promise. If the conduct is motivated by bad faith of a sufficiently
gross degree, it may be appropriate
for the court to make an order
that the administrative official concerned repay the state for the
cost incurred by it in defending
his or her actions in addition to
paying the costs of the applicant
de
bonis propriis.
He
concludes with the following remark:
"Such
an order would be appropriate if it was suitable, in the
circumstances of a particular case, to vindicate the Constitution
and
deter further violations of constitutional rights (Fose's case supra,
para 97). Given the exorbitant cost of High Court litigation,
the
prospect of costs orders of this type would probably serve as a
particularly potent inducement to administrative officials
to do
their jobs honestly and properly and, in this way, promote efficient
administration and contribute to the attainment of the
basic values
and principles for public administration set out in s 195 (1) of the
Constitution."
[89]
There is in my view no question that the actions of the officials
concerned in this matter namely the officials from the Metro
police
and the South African police services, fall under the category
referred to in some of the decisions I have dealt with above
and also
the type of conduct referred to by
Flasket
in
his article, and referred to in the Ontario court judgment.
[90]
In my view the time has come for courts to impose the full extent of
the law upon government officials who arrogantly act in
breach of the
constitutional imperatives referred to above, who act with impunity,
and who are not taken to task by government,
mostly because of
inability, unwillingness or political reasons.
[91]
South Africa is facing a tsunami of corruption, bribery, state
intervention in all spheres of the economy, unlawful, incompetent
and
malicious execution by public officials of the exercise of their
duties, in breach of the Constitution, and in breach of virtually

every other obligation that exists. The only bulwark against this
threat to the public, innocent citizens, and the poor, the frail
and
the needy, are the courts and the rule of law. The courts and the
independence of the courts, and the willingness of the judiciary
to
stand up against intimidation and
mala
fide
actions
of state officials must be utilised in its full force.
[92]
The public and innocent citizens should be vindicated, and a
deterrence should be available to force public officials to comply

with their duties and obligations, to act constitutionally, and to
act within their authority, and without trampling upon the rights
of
citizens, who are free men and women in a modern democratic society,
and who are entitled to demand of public officials to act
in such a
fashion.
[93]
Citizens and free men should not be subjected to force, intimidation,
unlawful detention, and similar behaviour perpetrated
upon them by
government officials who view themselves as above the law, not having
to adhere to their constitutional obligations,
and who think that
they can do as they please, when they please and how they please.
[94]
It is the right of citizens and free men to insist upon the courts
creating a deterrent, and providing within the confines
of the law
the necessary and appropriate relief in instances such as the
aforegoing, to enforce our progressive, admired and wonderful
Constitution,
that has brought freedom and human rights to millions of previously
disenfranchised, and disregarded citizens. The
rights created in the
Constitution must be safeguarded and protected and any infringement
thereof should be deterred through whatever
lawful mechanisms
possible, including appropriate relief which could and should
function as a deterrent for public officials who
infringe the
principles enshrined in the Constitution, who act outside the scope
of their constitutional duties, and who infringe
upon the rights of
normal, free and law abiding citizens.
[95]
Unlawful detention has had an infamous history in our law. It was
utilised during the apartheid era to force persons into submission,

where they were locked up in solitary confinement for days on end,
and it was utilised in a brutal and unacceptable fashion. Its

utilisation for political reasons was criticised worldwide, it was
not justified, and have caused severe human rights infringements
and
violations. This should not be allowed to happen again in a free
democratic society such as the one created by our Constitution.
It
should not be tolerated by any law abiding citizen, and it cannot be
justified on any basis whatsoever.
[96]
For the public then, under these circumstances, where there is a
shortage of funds to pay for health care, proper administrative
and
security services, for environmental protection, education and for a
host of other areas of government where funds are needed,
to be
forced to pay for the actions of wilful,
mala
fide
and
arrogant public officials, who have without hesitation breached the
Constitution, the fundamental rights of the applicant, and
who have
acted in violation of their obligations of the Constitution, is
simply not acceptable. It cannot be justified and it should
not be
tolerated.
[97]
In my view the abovementioned authorities provide ample justification
and authority for this court to grant appropriate relief
which would
act as a deterrent for those responsible, and for others, to act
within their constitutional obligations, and to serve
the country and
its people rather than to serve themselves. Any public official who
knows that he would be ordered personally to
pay costs of any court
application or litigation flowing from his unlawful actions, instead
of the taxpayer having to carry such
a burden, and such an official
not suffering any consequences therefrom, will think twice before
acting in the manner and fashion
those responsible in this matter had
acted.
[98]
I am therefore of the view that the time has come to order such
public officials, not only to right the wrong that has been
caused,
and not only to avoid the taxpayer to fund their unlawful frolics of
their own, but also to act as a deterrent to public
officials in
future, to grant an order in terms of which all the costs of the
litigation caused should be carried by those responsible.
Only in the
event of those responsible not being able to pay the full costs of
the parties to the litigation, should the taxpayer
be called upon to
make good any payment of costs to a person who has been wronged and
whose rights have been infringed. Because
senior superintendent
Moodley, his assistant, superintendent Klopper, Captain Nhlazo and
inspector Dulebu, as well as Metro Police
constable Mandla Steven
Ntsweni had been joined as respondents to the proceedings, because
they were represented by counsel and
also because they opposed the
relief sought and even argued that the arrest and detention was
lawful, I have no hesitation to come
to the conclusion that a costs
order can and should be made against them. They infringed upon the
constitutional right of the applicant
not to be detained unlawfully,
and therefore his right to freedom, and also did not act in
accordance with their constitutional
obligations and imperatives as
set out in the Constitution.
[100]
I
also take further into account that they did not play open cards with
this court. I have already explained above their approach
to the
court and their approach to disclosure of all the relevant facts to
this court. In my view this is an important factor that
weighs
heavily against the persons referred to above. They should never have
opposed the matter, they should not have attempted
to argue that the
arrest and detention was in fact lawful, and they should never have
attempted to justify their actions. The simple
fact that they had
attempted to do so illustrates the high-handed arrogance with which
they have acted and with which they acted
in this court.
[101]
Because of the fact that the applicant's fundamental human rights and
constitutional rights had been infringed, this court
is enjoined to
consider appropriate relief as referred to in section 38 of the
Constitution. Appropriate relief against a constitutional
background,
and where there was a breach of constitutional rights, has been the
subject of recent court decisions and has been
a hotly debated topic.
In
Fose
v Minister of Safety & Security
31
the
Constitutional Court dealt with appropriate relief as follows in
paragraphs 23 and 60:
"[23]
The 'constitutional damages' are claimed by the plaintiff in addition
to the common-taw damages to which he would be
entitled for the
assault on which the action is founded. It is contended that these
'constitutional damages' are required to enforce
the provisions of
the Constitution and are appropriate in order to achieve any of the
ends mentioned in para 17 (a), (b) and (c)
above.
[60]
For the purposes of the present case I will assume that 'appropriate
relief in s 7 (4) (a) includes an award of damages where
such award
is required to enforce or protect chap 3 rights. What has to be
decided is whether on the allegations made in the pleadings
the
plaintiff would be entitled to the particular damages with which the
exception is concerned. These are:
(a)
damages
to vindicate the fundamental rights of the plaintiff alleged to have
been infringed, and
(b)
punitive
damages to deter and prevent future infringements of the fundamental
rights in question by organs of the State and to punish
those organs
of the State whose officials
infringed
the plaintiff's rights in a particularly egregious fashion.
1,
32
[102]
I have no hesitation to come to the conclusion that appropriate
relief in this matter, with reference to the costs of the

application, that should never have been brought and that should
never have been necessary, is that those responsible therefor,
and
who were derelict in their duties, and who did not act in accordance
with their constitutional obligations, should carry the
costs of the
application. Furthermore there is no reason why the taxpayer should
carry the costs of the actions of these officials.
Senior
Superintendent Moodley and his assistant, Superintendent Klopper who
were on duty at the Pretoria West Police Station that
day and
evening, should not have allowed the arrest, and should have acted in
such a fashion that the infringement of the rights
of the applicant
had not occurred. The Metro policemen responsible for the arrest,
namely Constable Frans Moosa Sivayi had acted
completely outside his
authority and acted unlawfully by arresting the applicant. Constable
Mandla Steven Ntsweni who is the deponent
to the opposing affidavit
filed, and who tried to justify the actions of the respondents, and
who acted together with Constable
Sivayi is similarly responsible.
The original complaints commander and the commander who took over
from him namely Captain Nhlazo
and
thereafter
Inspector Duledu, similarly did not act in accordance with their
duties, namely to consider bail and to consider the
position and
rights of the applicant.
[103]
Section 173 of the Constitution provides that the Constitutional
Court, Supreme Court of Appeal and High Courts have the inherent

power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice. In
my view
the interests of justice call for the kind of order I intend to give.
[104]
The basic rule is that subject to any enactments to the contrary all
costs are in any event in the discretion of the court.
This is the
overriding principle and must be exercised judicially upon the
consideration of the facts of each case. The discretion
is wide
33
.
I am also of the view that in terms of the inherent jurisdiction of
this court, such an order as I will grant hereunder can and
should be
granted
34
.
[105]
In my view the persons referred to above should therefore be liable
jointly and severally, the one paying the other to be
absolved, for
the costs of the applicant on an attorney and own client scale. That
is however not the end of the matter. The costs
of the first and
second respondents will normally have to be paid by way of taxpayer
money. That is unacceptable. I am therefore
of the view that in the
exercise of my discretion, and in terms of the inherent jurisdiction
of this court, I can also grant a
cost order, which I hereby do, that
all the costs of the first and second respondents incurred in respect
of this application on
an attorney and own client scale should also
be paid by the abovementioned officials jointly and severally, the
one paying the
other to be absolved.
[106]
Only in the event of the officials referred to above not being able
to pay the costs concerned, the costs of the application
of the
applicant shall be paid by the first and second respondents on an
attorney and own client scale. The right to payment of
such costs
will only arise after all possible execution steps have been taken
and exhausted against the public officials referred
to above for
purposes of payment of the costs order.
[107]
The following order is therefore granted:
"1.
The following persons shall pay the costs of the applicant as well as
the costs of the first and second respondent
de
bonis propriis
on
the scale of attorney and own client:
1.1
the
station commander of Pretoria West Police Station: Senior
Superintendent Moodley;
1.2
Superintendent
Klopper of the Pretoria West Police Station;
1.3
Captain
Nhlazo of the Pretoria West Police Station;
1.4
Inspector
Dulebu of the Pretoria West Police Station;
1.5
Tshwane
Metro Police Constable Frans Moosa Sivayi.
2.
In the event, and only in the event of all execution steps having
been taken, finalised and exhausted against the abovementioned

officials, the first and second respondents shall be ordered to pay
any further outstanding costs of the applicant on a scale of
attorney
and own client."
DATED
AND SIGNED AT PRETORIA THIS 11
th
DAY OF OCTOBER 2010.
ACTING
JUDGE ROELOF DU PLESSIS
COETZEE/NATIONAL
COMMISSIONER OF POLICE AND ANOTHER
On
behalf of applicant:
Riaan
Meyer Inc
…
......................................
(Mr
Riaan Meyer)
…
......................................
Millenium
Park
…
......................................
512
Van der Hoffweg
…
.....................................
2
nd
Floor Suite 10
…
......................................
Pretoria
Gardens
…
......................................
Tel:
(012)3773560
Adv
JR Bauer
On
behalf of respondents: State Attorney
…
..............................................
(Mr
Chris Malan)
…
.............................................
Bothongo
Heights
…
.............................................
8
th
Floor
…
.............................................
167
Andries Street
…
..............................................
Pretoria
…
..............................................
Tel:
(012)3091500
Adv
TP Kruger
1
Plascon
Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
2
1970
(2) SA 68
(K)
3
R
v Muiier
1938
OPD 141
at 142,
Sv
S
1964
(3) SA 319
(T);
S
v Momberg
1970
(2) SA 68
(CPD)
4
1987
(1)SA 787 (NPD)
5
1979
(2) SA 25 (A)
6
Section
38
of the
Criminal Procedure Act
7
S
v
More
1993
(2) SACR 606
(W) at 608 D-F
8
S
v
More
supra
pages
608 E-F
9
Section
40 (1) (a) of the Criminal Procedure Act
10
1927
EDL 293
11
Du
Toit & Others:
Commentary
on the Criminal Procedure Act
,
pages 9-13
12
Du
Toit & Others
supra,
pages
9-1 to 9-65
13
Minister van Wet & Orde en Andere v Dipper
[1993] ZASCA 78
;
1993
(3) SA 591
(A);
S
v Du Plessis
1993
(2) SACR 379
(T) at 385;
S
v Petersen and Another
1992
(2) SACR 52
(C)
14
Le Roux v Minister of Safety & Security and Another
2009
(2) SACR 252
(K2P);
Gellman
v Minister of Safety & Security
[2007] ZAGPHC 269
;
2008
(1) SACR 446
(W);
Minister
of Safety & Security v Seymour
2006
(6) SA 320
(SCA);
Mabona
and Another v Minister of Law and Order and Others
1988
(2) SA 654
(SE);
Minister
of Safety & Security v Gtisson
2007
(1) SACR 131
(E)
15
Wood
and Others v Ondangwa Tribal Authority and Another
1975
(2) SA 294
(A) at 308 C to 309 D
16
Principal
Immigration Officer and Minister of Interior v Naravansamy
1916
TPD 274
;
In
Re Marechane
1
SAR 27;
In
Re Cakijana and Others; In Re Willem Kock and Natanlel Bailie
(1897)
Buch.Rep. 45
17
Swarf
v
Minister
of
Law
and Order
1987
(4) SA 452
(C);
Minister
of Law and Order Kwandebele and Others
v
Mathebe
and Another
1990
(1) SA 114
(A)
18
Cabinet
for the Interim Government of South West Africa v Bessinger and
Others
1989
(1) SA 618
(SWA)
19
Kabinet
van die Tussentydse Regering vir Suid-Wes Afrika en 'n ander v
Katofa
1987
(1) SA 695
(A)
20
2010 (3) SA 31
(KZP)
21
2006 (1) SA 203
(CC)
22
See
also
Grobler
v Potgieter
1954
(2) SA 188
(A); Ex
Parte
Hodgert
1955
(1) SA 371
(D); Ex
Parte
Bloy
1984
(2) SA 410
(D)
23
Geldenhuys
v Regional Magistrate Sutherland
1914
CPD 62
;
Regional
Magistrate Du Preez v Walker
1976
(4) SA 849
(A)
24
See
also
Trek
Tyres Ltd v Beukes
1957
(3) SA 306
(W);
Registrateur
van Banke v Clanwilliam-Eksekuteurskamer Bpk
1972
(4) SA 387
(C);
Francarmen
Delicatessen (Pty) Ltd v Gulmini
1982
(2) SA 485
(W);
Finance
Corporation (Pty) Ltd v Trusting Engineering (Pty) Ltd
1987
(4) SA 581 (W)
25
Venter
NO v Scott
1980
(3) SA 988
(O)
26
Louw
vLampert and Chipkun
1972
(2) SA 501
(T);
Die
Meesterv Meyer
1975
(2) SA 1
(T);
Legal
Practitioners; H Merks
&
Co
(Pty)
Ltd v The B-M Group (Pty) Ltd
[1995] ZASCA 45
;
1996
(2) SA 225
(A);
Napier
v Tsaperas
1995
(2) SA 665
(A);
WaarvLouw
1977
(3) SA 297
(O)
27
Port
Elizabeth Assurance Agency & Trust Co Ltd v Estate Richardson
1965
(2) SA 936
(C);
Jakins
v Berton
1971
(3) SA 735
(C)
28
The Master v Omar
1958
(2) SA 547
(T);
Du
Plessis v Tzerevos
1979
(4) SA 819
(O)
29
Regional Magistrate Du Preez v Walker
1976
(4) SA 849
(A) at 853
H;
Credex
Finance (Pty) Ltd v Kuhn
1977
(3) SA 482
(N);
Moeca
v Addisionele Kommissaris Bloemfontein
1981
(2) SA 537
(O)
30
See
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC)
31
1997 (3) SA 786 (CC)
32
See also
Modderfontein
Squatters, Greater Benoni City Council v Modderklip
Boerdery
(Pty) Ltd (Agri SA & Legal Resources Centre, amici curiae)
2004
(6) SA 40
(SCA) and
2005 (5) SA 3
(CC);
MEC
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA);
Von
Abo v Government of the Republic of South Africa and
Ottiers20W
(3)
SA 269 (GNP);
Glenister
v President of the Republic of South Africa and Others
[2008] ZACC 19
;
2009
(1) SA 287
(CC)
33
LAWS A Volume 3 Part 2, First Reissue
paragraph
292;
Blue
Circle Ltd v Valuation Appeal Board Lichtenburg
[1991] ZASCA 43
;
1991
(2) SA 772
at 796;
Mouton
v Die Mynwerkersunie
1977
(1) SA 119
(A) at 149A;
Kruger
Brothers and Wasserman v Ruskin
1918
AD 63
at 69;
Union
Government (Minister of Railways and Harbours) v Heiberg
1919
AD 477
at 484;
Koenig
v Johnson & Co Ltd
1935
AD 262
at 298
34
Law
Society Northern Provinces v Mogami and Others
2010
(1) SA 186
(SCA);
Bisset
and Others v Boland Bank Ltd and Others
1991
(4) SA 603
(D);
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A);
Western
Assurance Co v Chledwell's Trustee
1918
AD 262
at 271;
Hudson
v Hudson and Another
1927
AD 259
at 268;
Phillips
and Others v National Director of Public Prosecution
[2005] ZACC 15
;
2006
(1) SA 505
(CC); S
v
Pennington and Another
1997
(4) SA 1076
(CC);
Parbhoo
and Others v Getz NO and Another
1997
(4) SA 1095
(CC);
Zondi
v MSC Traditional &
Loca/
Government
Affairs and Others
2006
(3) SA 1
(CC);
Gumede
and Others v Subel NO and Others
2006
(3) SA 498
(SCA);
Nedcor
Bank Ltd and Another v Gculitshana and Others
2004
(1) SA 232
(SE);
Van
Deventer v Reichenberg and Another
1996
(1) All SA 125
(C) at 132 F