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[2019] ZAECPEHC 37
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Matebese v Minister of Police (2224/2017) [2019] ZAECPEHC 37 (18 June 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO:
2224/2017
Date
heard
:
14
to 17 May 2019
and
29 May 2019
Date
delivered
:
18
June 2019
In
the matter between:
SIYABONGE
MATEBESE
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
JUDGMENT
LOWE,
J
:
INTRODUCTION
[1]
Plaintiff instituted action against
Defendant for unlawful arrest and detention.
[2]
Plaintiff was arrested without a warrant by
the arresting officer, Warrant Officer Olckers, on Friday, 21 October
2016 at approximately
11h20. He was arrested, so it is pleaded
by Defendant, in terms of Section 40(1)(a) of the Criminal Procedure
Act 51 of 1977
(“the CPA”),
it being alleged that the Plaintiff was in possession of Mandrax
and/or was resisting arrest. It was pleaded
in the
alternative that the arrest was in terms of Section 40(1)(b) or (h)
of the CPA being in possession of drugs. He was
detained until
8h30 on Monday 24 October 2016 and was then released without
appearing before a Magistrate purportedly in terms
of Section 56 of
the CPA. Defendant alleges that the offence was a Schedule 1
offence and became a Schedule 5 offence as
he had previous
convictions and accordingly that Section 60(11)(b) of the CPA was of
Application to bail in the circumstances.
[3]
To qualify as a Schedule 1 offence in these
circumstances the charge of possession of Mandrax would have to carry
a punishment of
more than 6 months imprisonment without the option of
a fine.
[4]
Plaintiff pleads further that even if a
reasonable suspicion was held relevant to Plaintiff having committed
an offence, the arresting
officer failed to exercise his discretion
to arrest or not to arrest in a fair and rational manner.
[5]
As to the detention after arrest, it was
pleased that this was unlawful due to the alleged unlawful arrest,
alternatively, that
Plaintiff should have been brought before a
prosecutor, after hours, in terms of Section 59A of the CPA forthwith
for his release,
further alternatively that the South African Police
Service members ought to have released him as they knew or ought to
have known
that he would be released “
on
warning or on bail”
at his first
court appearance, and that he was clearly a candidate for release in
terms of Section 59A of the CPA.
[6]
Whilst in argument it was contended that
Plaintiff ought to have been brought before a court prior to 4pm on
the day of his arrest,
this was not in fact pleaded but rather that
he should have been brought before a Section 59A prosecutor
immediately and in any
event no later than the evening of his
arrest.
[7]
In a Rule 37 Minute it was agreed that this
was a Schedule 1 offence (a matter to which I will return in due
course).
[8]
Defendant denies all the allegations of
unlawfulness, and relevant to release on bail, pleads that Plaintiff,
after his rights to
bail were explained, did not request same.
[9]
In the result in argument it was clear that
the following were the real disputes:
[9.1]
Whether or not the arresting officer had a “
reasonable
suspicion”
that Plaintiff was in
possession of drugs when he was arrested;
[9.2]
Whether that reasonable suspicion could have been formed prior to a
search having been conducted to
establish if Plaintiff was in fact in
possession of drugs;
[9.3]
Whether the discretion to arrest was lawfully exercised;
[9.4]
Whether suspected Mandrax powder was found in the search of Plaintiff
at the Police Station (with
subsequent further “
arrest”
);
[9.5]
Whether the continued detention of Plaintiff at the Police Station
was lawful;
[9.6]
Whether at any time between his arrest and release that detention
became unlawful.
THE
FACTS
[10]
It was common cause that Warrant Officer
Olckers was on duty, patrolling in a marked Golf vehicle with Warrant
Officer Kleynhans
on the morning of the arrest. They saw
Plaintiff approach a known drug dealer and witnessed an exchange
between the two.
They then followed Plaintiff who had walked
away and who entered a shop which sold cigarettes. In
this regard Plaintiff
admitted a purchase transaction with the drug
dealer, he purchasing a small amount of dagga he said.
He went
to the shop to buy tobacco to mix in with the dagga. He
was arrested by Warrant Officer Olckers, assisted by Warrant Officer
Kleynhans in the shop.
[11]
Here the evidence parts ways.
[12]
Plaintiff said that he was at all times
accompanied by a friend “
Nyoro”
to whom he passed the dagga purchased and who waited outside the shop
for him. He said that inside the shop he was approached
by a
police officer who went to him and immediately started manhandling,
him throwing him to the ground. He said the arresting
officer
and two others attempted to search him, but that he resisted the
search. He also resisted their attempt to load him
into the
Golf vehicle. They were assisted by a passerby and eventually
they succeeded. His version demonstrates the
force and extent
of his resistance.
[13]
His version is clear evidence of an assault
beyond the limits of an arrest – he said that he informed his
legal team of all
this – but significantly there is not even a
hint of this in his claim – no assault alleged and no cause of
action
based thereon, as would surely have been the case had this
been what he had told his lawyer. This part of his
evidence
smacks of fabrication and he was unable to explain this
away.
[14]
He maintained that he was not told why he
was being arrested and searched. He maintained he was searched
at the Police Station,
was assaulted by Warrant Officer Olckers and
Warrant Officer Kleynhans during the search and that nothing was
found – again
no assault was alleged in this regard in his
claim.
[15]
His evidence fell apart in
cross-examination and he was disclosed as being an extremely poor and
unimpressive witness. He
flatly contradicted himself on a
number of occasions and demonstrated a willingness to fabricate and
adjust his version as he went
along. As examples he entirely
denied being asked by the arresting officer for his personal details
later, saying he gave
them his name and address. In
cross-examination he said he did not know why he was arrested but in
chief said he told the
detectives that he was arrested for possession
of Mandrax. It was patent that his alleged friend in fact never
existed nor
understandably was this pursued by his counsel.
Similarly his allegation of assault. He embellished on the alleged
assault,
this becoming a trampling under cross-examination and had
difficulty in explaining the injury he alleged from the assault.
He denied that a folded paper with a small amount of white powder in
it – suspected Mandrax – was found in his shoe.
He
improbably claimed not to have been read his rights at all by the
arresting officer. It should be said that the alleged
presence
of a friend to whom the dagga was passed, was a desperate last ditch
attempt to avoid a possession charge, he claiming
to have passed on
the dagga immediately it was bought. Once it is accepted that
there was no friend (as it must be on the
evidence and probabilities)
his continued possession of the drugs purchased, again on the
probabilities, when he went to the shop
is established.
[16]
There can however be little doubt that the
cell conditions in which he was kept were appalling with blocked
toilet, lice and other
occupants – he sleeping sitting up due
to the filthy conditions and inadequate bedding. He
said that before
he was released he was asked if he could post bail
but saw he had no money and could qualify only for “
free
bail”
. At one time he
said he told the police that he wanted to go home when the
investigating officer explained his rights
(this for the first time
in cross-examination).
[17]
There was no other evidence for Plaintiff.
[18]
Plaintiff’s counsel in argument
accepted that the evidence of Warrant Officer Olckers and Warrant
Officer Kleynhans could
be viewed “
collectively”,
much of it not being contentious as
follows as per counsel’s heads:
“
25.
They testified that they saw the Plaintiff receive something from a
known drug dealer. They decided
to follow the Plaintiff who was
moving away at that stage.
26.
They stopped their marked police vehicle in front of a shop that they
saw him enter with
the intention of searching him for drugs, which
they suspected he had in his possession.
27.
Olckers was the first to exit the vehicle and approach the Plaintiff.
He testified that
the Plaintiff ran past him towards the exit of the
shop where Kleynhans was standing at that stage.
28.
He testified that, a couple of seconds later, Kleynhans stopped the
Plaintiff from escaping
from them and the Plaintiff grabbed hold of
the security gate with his arms in front of him at shoulder height.
29.
At that stage he was intent on arresting the Plaintiff instead of
searching him while he
was in a standing position.
30.
Kleynhans confirmed his evidence to a great extent until this stage.
31.
The Plaintiff was then sprayed with pepper spray as the two officers
could not remove him
from the gate he had grabbed hold of. A couple
of seconds later he released his grip and a passer-by assisted them
in subduing
and handcuffing the Plaintiff.
32.
Kleynhans’s evidence hereof differed in that he was adamant
that even after the pepper
spray was used the Plaintiff continued to
hold onto the gate for several minutes.
33.
The Plaintiff was then taken to the Uitenhage Police Station where he
was searched and mandrax
powder of about half a tablet was found in
his one shoe.
34.
He was arrested again and his rights explained to him.
35.
Olckers took him to the detention cells where he was handed a written
Notice of Rights in
Terms of the Constitution which he read for about
4 to 5 minutes and then still refused to sign. The cell commander,
whose name
is not known, signed as witness. The Plaintiff gave his
name and address to Olckers.
36.
He was thereafter detained.”
[19]
The remaining evidence for the Defendant
took the matter little further, save to establish the events and
timeline post-arrest.
THE
LEGAL ISSUES RELEVANT TO ARREST AND SUBSEQUENT RELEASE
[20]
Counsel for Plaintiff in argument correctly
conceded that on the acceptable common cause evidence the police
officers concerned
indeed had reason to suspect that Plaintiff was
involved in the purchase of drugs from the dealer, identified by, and
well known
to the police. What was argued, however, was that
the suspicion was not a reasonable suspicion until a search of
Plaintiff
had been carried out and the drugs actually found in his
possession as, so it went, required by Section 40(1)(a) and (h) of
the
CPA – which he argued had never occurred.
[21]
In
respect of Section 40(1)(a) police officers are given extraordinary
powers of arrest. This is of course, unless justified,
an
infringement of liberty and human dignity. In
Minister
of Safety and Security v Van Niekerk
[1]
the Court held that nuanced guidelines exist as to when to arrest
without a warrant and when not. This must be read
in the
light of
MR
v Minister of Safety and Security
[2]
and
Minister
of Safety and Security v Sekhoto and Another
[3]
.
[22]
This subsection requires that a particular
factual situation must exist to justify an arrest. If it does
then the arrest may
be made, if not then it cannot. This
does not require a reasonable suspicion which requires an objective
standard to
be applied. However good faith or reasonable
mistake does not help, absent the established particular factual
situation,
being a crime committed, or attempted to be committed, in
his presence.
[23]
The
arresting officer must have personal knowledge of the conduct and
facts relevant and the test for establishing the relevant
facts being
in existence is objective
[4]
.
An acquittal or non-prosecution is not relevant.
[24]
The following must be established.
[24.1]
the arresting officer is a peace officer.
[24.2]
an offence committed or an attempt.
[24.3]
the said offence, or attempt, must be in the peace officer’s
presence.
[25]
In
Scheepers
(supra)
it was pointed out that the requirement of Section 40(1)(a) is a
determination of whether the facts observed by the arresting officer
“
as
a matter of law prima facie establish the commission of the offence
in question”.
He
may act on reasonable inferences
[5]
.
He may take into account what he observed immediately before the
arrest with his cognisance of the surrounding circumstances.
If
a reasonable interpretation of the facts observed lead him to the
conclusion that a crime is being committed in his presence,
the crime
is deemed to be committed for the purposes of Section 40(1)(a)
[6]
.
He must have acted on objective reasonable grounds. It is not
necessary that the crime is shown later to in fact have
been
committed
[7]
, e.g. driving under
the influence of alcohol
[8]
.
[26]
The suggestion that
Tyulu
changed the above was dealt with in
Scheepers
as being an incorrect view, the position remaining “
that
is sufficient that the facts observed by the peace officer prima
facie constitute the offence in question”.
I
agree entirely with this. The police bear the onus in this
regard.
[27]
In
respect of Section 40(1)(b) and (h) the position is generally set out
in
Minister
of Police v Dhali
[9]
as follows:
“
[9]
In
Duncan
v Minister of Law and Order
[10]
,
it
was held that the jurisdictional facts for a Section 40(1)(b) defence
are that (i) the arrestor must be a peace officer, (ii)
the arrestor
must entertain a suspicion; (iii) the suspicion must be that
the suspect (the arrestee) committed an offence
referred to in
Schedule 1; and (iv) the suspicion must rest on reasonable
grounds.
[11]
[10]
The suspicion that must be held must, in order to be a reasonable
one, be objectively sustainable,
in the sense that it must rest on
reasonable grounds.
[12]
[11]
The jurisdictional fact for an arrest without warrant in terms of
these provisions remains a
suspicion. In
Mabona
& Another v Minister of Law and Order and Others
[13]
,
the
following was said in relation to how a reasonable suspicion is
formed:
“
Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there were
good and
sufficient grounds for suspecting that the plaintiffs were guilty of
conspiracy to commit robbery or possession
of stolen property knowing
it to have been stolen? It seems to me that in evaluating his
information a reasonable man would bear
in mind that the section
authorises drastic police action. It authorises an arrest on the
strength of a suspicion and without the
need to swear out a warrant,
ie something which otherwise would be an invasion of private rights
and personal liberty. The
reasonable man will therefore analyse
and assess the quality of the information at his disposal critically,
and he will not accept
it lightly or without checking it where it can
be checked. It is only after an examination of this kind that he will
allow himself
to entertain a suspicion which will justify an arrest.
This is not to say that the information at his disposal must be of
sufficiently
high quality and cogency to engender in him a
conviction that the suspect is in fact guilty. The section requires
suspicion
but not certainty. However, the suspicion must be based
upon solid grounds. Otherwise, it will be flighty or arbitrary, and
not
a reasonable suspicion.”
[14]
[12]
In
Minister
of Police and Another v Du Plessis
[15]
Navsa
ADP stated as follows:
“
[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.
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
(2) SACR 1
(CC)
(2008 (4) SA 458
;
2008 (6) BCLR 601)
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. 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.”“
[28]
It
is trite that police officers purporting to act in terms of Section
40(1)(b) of the Act should investigate exculpatory explanations
offered by a suspect before they can form a reasonable suspicion for
the purpose of lawful arrest.
[16]
It is expected of a reasonable person to analyse and weigh the
quantity of information available critically and only
thereafter, and
having checked what can be checked, will he form a mature suspicion
that will justify on arrest.
[17]
[29]
All
the above is of course subject to the discretion to arrest as
explained in
MR
supra
[18]
.
In short police officers are never obliged to effect an arrest, when
all the jurisdictional factors are present, in the
conduct of their
discretion whether to do so.
[19]
Section 39(1) of the CPA authorises the arrestor, if the
circumstances require, to use force by “
forcibly
confining his body”.
[20]
[30]
Once an arrest has been lawfully executed
without a warrant the question arises as to an arrestee’s
rights thereafter.
[31]
Generally this is governed by Section 50 of
the CPA, but must be read with Section 59 and 59A thereof.
[32]
In
Minister
of Police v Ndaba and Others
(unreported
Gauteng Division A553/2014 delivered on 6 May 2014) the following was
said:
“
[19]
The first portion of section 50, leading up to subsection (d)(i),
provides as follows:
"
Procedure
after arrest
50(1)(a)
Any person who is arrested with or without warrant for allegedly
committing an offence, or for any other reason, shall
as soon as
possible be brought to a police station or, in the case of an arrest
by warrant, to any other place which is expressly
mentioned in the
warrant.
(b)
A person who is in detention as contemplated in paragraph (a) shall,
as soon as reasonably
possible, be informed of his or her right to
institute bail proceedings.
(c)
Subject to paragraph (d), if such an arrested person is not released
by reason that
–
(i)
no charge is to be brought against him or her; or
(ii)
bail is not granted to him or her in terms of section 59 or 59A (my
note: these
sections do not apply for present purposes)
he or
she shall be brought before a lower court as soon as reasonably
possible, but not later than 48 hours after the arrest.
(d)
If the period of 48 hours expires
–
(i)
outside ordinary court hours or on a day which is not an ordinary
court day, the accused shall be brought before a lower court not
later than the end of the first court day
;
(ii)
..." (Emphasis added.)
[20]
Subsection (2) of section 50, containing the relevant definitions,
reads as follows:
"(2)
For purposes of this section –
(a)
'
a court day
'
means a day on which the court in question normally sits as a court
and '
ordinary court day
'
has a corresponding meaning; and
(b)
'
ordinary court hours
'
means the hours from 9:00 until 16:00 on a court day."”
[33]
The
Court referred to the judgment in
Mashilo
and Another v Prinsloo
[21]
as follows:
“
[34]
The present case which is the subject of the appeal which came before
us, was heard in March 2014, and the judgment handed
down on 2 April
2014.
[35]
The judgment in
Mashilo and Another
,
mentioned above, was heard in August and September 2012 and, as
appears from the citation, already reported in 2013. However,
the
learned Judge in the matter before us, was clearly not referred to
that judgment, to which I will refer as "
Mashilo
and Another
". This was the
Prinsloo
case
to which I have referred.
[36]
When leave to appeal was refused in the
Prinsloo
case (evidently the appeal was only
directed at the costs order granted against
Mashilo
)
the latter and the prosecuting authority applied to the Supreme Court
of Appeal for leave to appeal which was granted, and the
appeal was
upheld at the same time.
The
basis upon which the matter came before the Supreme Court of Appeal
("SCA") is described as follows in the judgment
at 651d-g:
"The
application for leave to appeal did not pertain to the earlier order
by the High Court, but to the subsequent order releasing
Prinsloo and
the costs order against Mashilo. As Prinsloo had already been
released, the essence of the application for leave to
appeal was not
to set aside such an order. Such an exercise would have been
academic. It was directed at the costs order made against
Mashilo. In
this court, counsel for Prinsloo conceded that the costs order
against Mashilo should not have been made, as Prinsloo
had abandoned
his prayer for costs against Mashilo. But because that costs order
was based on an alleged misinterpretation by the
court below of the
provisions of
section 50
of the
Criminal Procedure Act, counsel
for
the appellants submitted that this court should consider the merits
of the matter. What was sought to be achieved was a definite
interpretation of that section ..."
The
court then proceeded to interpret
sections 50(1)
and (6).
Subsection
(6), with respect, is not directly in point for present purposes. It
provides:
"(6)(a) At his or
her first appearance in court a person contemplated in subsection
(1)(a) who –
(i)
was arrested for allegedly committing an offence shall, subject to
this section
and
section 60
–
(aa)
be informed by the court of the reason for his or her further
detention; or
(bb)
be charged and be entitled to apply to be released on bail; ..."
Section
60
deals with bail applications.
[37]
In
Mashilo and Another
, the learned Judge of Appeal says the
following at 653c-f:
"
Section
50(d)(i)
was clearly intended to extend the 48-hour outer limit
during which an arrested person could be detained
.
That is made plain from the language of the subsection and has,
during the last thirty five years since the introduction of the
Act,
always been understood to be so. This is clear from one of the
earlier, foremost authorities on criminal law and procedure,
namely
the work by Lansdown & Campbell
South
African Criminal Law and Procedure
vol
5:
Criminal Procedure and Evidence op
cit
at 299-300. See also the
interpretation given by Eksteen J in
Hash
and Others v Minister of Safety and Security
[2011]
ZAECPEHC 34 in paragraph 71. The legislative purpose in extending the
48 hours, if it is interrupted by a week-end, appears
to me to be
fairly obvious. It is because the logistics of ensuring an appearance
before court over a week-end are difficult. Put
differently, it is
difficult to co-ordinate police, prosecutorial and court
administration and activities over a week-end. This
was especially
true at the time that the legislation was introduced. It continues to
be true today."
(Emphasis added.)
[38]
After dealing with the interpretation adopted by the learned Judge in
the court below, in the
urgent court, the learned Judge of Appeal
said the following at 653i-j:
"This
interpretation was erroneous. In arriving at his conclusion the
learned Judge in the court below failed to consider not
only what is
set out in the preceding paragraphs, but also in having regard to
constitutional values. He failed to take into account
section
35(1)(d)(ii) which, itself, recognises that the 48-hour period may be
extended if interrupted by a week-end."
Here
the learned Judge of Appeal refers to section 35(1)(d) of the
Constitution which reads as follows:
"Everyone who is
arrested for allegedly committing an offence has the right –
...
(d)
to be brought before the court as soon as reasonably possible, but
not later than
–
(i)
48 hours after the arrest; or
(ii)
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."
(Emphasis added)
This
provision also clearly flies in the face of the interpretation
preferred by the learned Judge in the court below in
Prinsloo
,
and followed by the learned Judge in the court below in the matter
before us: in this case, the 48 hours expired on Monday evening
and
the arrested persons were taken to court the next morning, namely
"the first court day after the expiry of the 48 hours"
as
directed by the Constitution.
[39]
In Hiemstra's
Criminal Procedure
(loose
leaf edition) at 5-30, the learned author recognises that the
decision by the court below was overturned by the SCA in
Mashilo
and Another
and observes:
"In
section 50(1)(d)(i) the 'first court day' means the first court day
after expiry of the 48 hour period."
[40]
In conclusion, however, it seems to me to be appropriate to make the
remark that the judgment
in
Mashilo and
Another
has a proverbial "sting in
the tail". It seems to provide that the arrested person ought
not to be detained for the entire
period if he can be brought to the
court earlier.
At
654a-c the following is stated by the learned Judge of Appeal:
"The
matter could have been decided in the court below without resorting
to a strained interpretation of section 50(1)(d).
The outer limit of
48 hours envisaged in the subsection does not, without more, entitle
a policeman to detain someone for that
entire period without bringing
him to court if it can be done earlier. The subsection obliges police
authorities to bring someone
before court as soon as is reasonably
possible. This is so, whether or not the 48 hours expired before or
during the week-end.
Expedition relative to circumstances is what is
dictated by the subsection and the Constitution. Deliberately
obstructive behaviour,
as was evidenced by
Mashilo
,
is not tolerated. On that basis alone the court below could quite
easily have ordered that he be brought to court immediately
to
facilitate a bail application."
[34]
After arrest then the arrestee is entitled
to be informed as soon as reasonably possible of his right to
institute bail proceedings
(Section 50(1)(b)).
[35]
Bail can be granted by the police, the
Director of Public Prosecutions, a person authorized by the Director
of Public Prosecutions,
a Magistrate and the High Court, depending on
the circumstances.
[36]
Section 59A of the CPA provides
inter
alia
that an authorized prosecutor may,
in respect of Schedule 7 offences, in consultation with the
investigating officer authorise
the accused release on bail.
Section 59 applies to “
Police
Bail”
before appearance before a
Court other than in respect of an offence referred to in Part II or
Part III of Schedule 2 – this
being such an offence, not being
relevant.
[37]
The offence in this matter is indeed a
Schedule 7 offence being an offence in terms of any law relating to
the illicit possession
of dependence producing drugs.
[38]
The offence is not a Schedule 1 offence as
argued as the offence is not one for which “
...
the punishment may be a period of imprisonment exceeding six months
without option of a fine”. (
As
read with the
Drugs and Drug Trafficking Act 140 of 1992
,
Sections 4
as read with
Section 13
and
17
).
[39]
In the result this offence is not a
Schedule 5 offence, and this being a matter of law, I ignore the
parties’ incorrect agreement
hereon.
[40]
Section 50(6)(b)
of the CPA deprives an
accused of any right to have bail considered by a Court after hours.
THE
ARREST
[41]
In this matter the common cause facts are
set out above as to Plaintiff’s arrest at the shop.
[42]
This is the crucial moment of arrest and
was undoubtedly an arrest flowing from the arresting officer’s
observations, and
the facts, consequent thereupon. It is indeed
Plaintiff’s own evidence that he indeed bought a drug (dagga)
from a
known drug dealer shortly before his arrest.
[43]
Applying
Stellenbosch
Famers’ Winery Group Ltd and Another v Martell
et
Cie and Others
[22]
.
It
is not a difficult matter to establish the essential factors
justifying the arrest under at least
Section 40(1)(a).
[44]
Plaintiff was seen approaching and
effecting an exchange with a well known drug dealer. He was
clearly unaccompanied, on the
evidence of the two excellent police
officers, who made a good impression with good demeanour – the
difference between them
on detail being entirely explicable in the
dangerous moving scene which ensued and the gathering and potentially
threatening crowd.
Even Plaintiff admitted the purchase of a
drug – albeit dagga – a prohibited substance in these
circumstances.
On the acceptable evidence there was clear
evidence of facts observed by the arresting officer which,
objectively viewed,
prima facie
constituted the offence in question. In the absence of the
alleged friend he was certainly on the probabilities still in
possession of whatever he had purchased. There was no need to
effect a search to confirm same nor do I accept for a moment
that
Plaintiff was thrown to the ground as he suggested but rather that he
attempted to flee, and then when arrested using the
force necessary,
he fought a battle justifying the steps taken to restrain him.
[45]
In the result I find the arrest to have
been lawfully affected in terms of
Section 40(1)(a)
of the CPA.
[46]
It is unnecessary accordingly to consider
the alternative grounds pleaded relevant to the arrest.
[47]
I should say however that had I been
obliged to do so I would have concluded that on the facts and
circumstances pertaining at the
time, the arresting officer most
certainly entertained the necessary reasonable suspicion as required
in
Section 40(1)(h)
on reasonable grounds. There was no need
for a search to confirm same more especially as Plaintiff resisted
same. Further
there is no basis for concluding that the discretion to
arrest was wrongly exercised.
THE
DETENTION
[48]
Plaintiff’s first argument was that
he ought to have been brought before a Court for a bail hearing
before 16h00 on the day
of his arrest – a Friday.
[49]
This I have little difficulty in rejecting.
[50]
He was arrested at 11h20 on the Friday and
then taken forthwith to the Police Station for searching and
processing. He was,
I accept on the totality of acceptable
evidence, found in possession of a small quantity (a crushed half
tablet) of suspected Mandrax.
[51]
The first detective on the case, after
Plaintiff had been booked into the police cells after his search and
warning of his Constitutional
Rights (which I accept occurred),
received the docket at about 15h00, he taking a warning statement and
fingerprints.
Outstanding was confirmation of Plaintiff’s
alleged address. His shift ended at 18h00 and he said that he
had insufficient
time to check the address, this being attended to by
policeman Camagu at 23h30 on the same day.
[52]
There was little explanation as to the
period it took the docket to get to the Detective between 13h20 and
15h00, beyond this needing
to be checked by the CSC Commander and be
entered into the system by a data-capturer.
[53]
In my view it was more than reasonable for
the Police to act as they did after the arrest and most certainly not
required of them
to do more than take reasonable steps to proceed
with Plaintiff’s processing with reasonable expedition and
efficiency.
[54]
In my view in the circumstances it is
entirely unreasonable to suggest that the fact that Plaintiff was not
brought before a Court
before 4pm on the day of his arrest, is an
actionable delay to hold so and would place an unrealistic burden
upon the police in
the circumstances.
[55]
The first argument fails accordingly.
[56]
Plaintiff argued further that once
Plaintiff’s address was verified he became eligible, not for
release on bail by the police
(Section 59(1)(c))
, the offence not
qualifying therefor, but in terms of
Section 59A
of the CPA and as he
was not released in terms thereof (before his Monday release) he was
wrongly detained for far a longer period
than was legally justified.
[57]
The
fact of the matter is however that an accused person cannot be
released on warning but only on bail in terms of
Section 59(A).
[23]
Section 59A(3)
is unequivocal and clearly does not authorise release
on warning. The directive issued by the National Director of
Public
Prosecutions Policy Manual presumably in terms of
Section
59A(2)
make it clear so Defendant’s Counsel contends that
release on warning is not permitted. Bail must be put up in
cash
or by bank guarantee.
[58]
Plaintiff’s Heads of Argument argue
that:
“
72.
The Plaintiff was arrested at 11:20AM. From the shop to the police
station took no more than 10 minutes. There the
search took place and
the Plaintiff was taken to the cells. At the cells he was required to
sign the SAP14A appearing on page 7
of bundle A. The time on this
document reads 11:40AM. Immediately after this the Plaintiff was
detained.
73.
Olckers and Kleynhans then made their statements and handed the
docket over to the charge office commander
at 13:20.
74.
The charge office commander’s only duty regarding the docket is
to hand it over to crime office
commander.
75.
From the Investigation diary on page 27 of bundle A it can be seen
that it was only received by the
next person at 14:20. No
justification for this delay is given.
76.
From the evidence, the only attention that this docket received after
13:20 was between 15:00PM and
approximately 16:00PM when Zinto
attended to charging the Plaintiff, taking his warning statement and
taking his finger prints.
77.
One must take into account that all the members dealing with the
matter must have known that, if the
docket and Plaintiff was not
taken to court on the Friday, he would be limited to the afterhours
prosecutor and, as Camagu testified,
in the case of detained persons
who could not afford an attorney, would have to wait until they are
taken to court on the next
available court day, which would be Monday
24 October 2016, some three nights and two days later.
78.
It is respectfully submitted that the explanation given by the
members of the Defendant in relation
to the Plaintiff’s
detention falls far short of what is expected of them. In
The
Minister of Safety and Security v Faizal Jacobs
,
an unreported decision of the Grahamstown High Court under case
number CA 07/2011, delivered on 15 December 2011, the court reasoned
as follows at paragraph 7:
“
The
only explanation given by the investigating officer as to why the
Respondent was not taken to court on Friday 20 February 2009
was that
he was not dealing only with the respondent’s docket. By
implication, apart from the fact that he was a very busy
man, nothing
prevented him from ensuring that the respondent was taken to court
even by another police official.”
79.
If the court finds that the lapse of time was reasonable and that not
sufficient time was available
to present the Plaintiff to a
prosecutor at court,
section 59A
of the CPA comes into operation.”
[59]
In
Jacobs
(supra)
however the Plaintiff was
arrested on a Thursday at 21h00, the Court finding he should have
been taken to Court on the Friday.
This matter is entirely
distinguishable. The time set out is correct but the conclusion
relevant to a court appearance on the Friday
is not.
[60]
Counsel went on as follows:
“
81.
It was confirmed by Camagu that a prosecutor is on standby and
available to the detectives on duty twenty-four hours
a day outside
of normal court hours.
82.
The offence of possession of mandrax or drugs is an offence listed in
Schedule 7 of the CPA.
83.
In the matter of
Sethlapelo v Minister
of Police 2015 JDR 0952 (GP)
the court
stated as follows:
“
I
am of the view that once the jurisdictional facts for the
consideration of police bail in terms of
s 59(1)(a)
of the CPA are
present, the police has a constitutional duty to ascertain as soon as
reasonably possible after the arrest whether
the arrestee wishes bail
to be considered. If the arrestee wishes to apply for police bail,
the senior police official, in consultation
with the investigating
police official, must consider bail as a matter of urgency. A failure
to inform the arrestee of his constitutional
right to apply for bail
or a failure to consider bail or any unreasonable delay in the
process could, depending on the circumstances
of the case, render the
arrestee's further detention until his first appearance in court
unlawful.
”
See
also: Scheepers and Others v Minister of Police Case no. 1889/17 and
4447/16, a recent unreported decision of the Port Elizabeth
High
Court (attached)
84.
Similarly, in this matter, the fact that the offence with which the
Plaintiff was charged falling in
the ambit of Schedule 7 of the CPA,
required steps by the Defendant’s members to bring him before
an afterhours prosecutor
forthwith.
85.
The fact that Camagu, who confirmed the address of the Plaintiff and
thereby rendering it ready for
presentation to prosecutor, did not
even speak to the Plaintiff for the duration of his shift shows that
the Plaintiff was not
informed that he was a candidate for
presentation to a prosecutor for consideration of release on such
terms as the prosecutor
deemed fit.”
[61]
I agree in principal with this. In
this matter the prosecutor should ordinarily have been approached,
however as bail was
beyond Plaintiff’s means this clearly would
not have resulted in his release, nor could he have furnished a
guarantee.
[62]
It was not challenged that Plaintiff, on
his own evidence, did not have any money and could not have posted
whatever bail was set.
As I have said he could not have been
released on warning had such an application been brought, in terms of
Section 59A
, which does not permit same.
[63]
Plaintiff
argues that the standby prosecutor, had he been approached, would
have released Plaintiff. Apart from the views
of one police
witness that usually charges in such circumstances are withdrawn
pending testing of the suspected drugs there was
no evidence of what
a Prosecutor would have done if approached. This Plaintiff had
previous convictions relevant to possession
of drugs which would have
played a role. Even if I am prepared to accept that on
the facts it is probable that the
standby prosecutor would have
authorised his release on bail (not on warning) which is far from
clear on the evidence, had bail
been authorised Plaintiff would have
been unable to meet same and would then inevitably have been held
over until his court appearance
on the Monday. Hiemstra
[24]
in dealing with
Section 59A
of the
Criminal Procedure Act, 51 of
1977
, quotes the following from
Part 10
(under the heading “
Release
of Bail by prosecutors”
)
of the Policy Manual of the National Prosecution Authority of South
Africa:
“
1.
...
16.
Bail should as a general rule not be granted in the case of multiple
or repeated offences,
or where the accused is an escapee or out on
parole”.
[64]
This issue and the question of causation
were addressed by both parties in supplementary heads which I called
for as this had not
been traversed in argument.
Essentially submissions for Plaintiff rest upon an attempt to
establish a forced interpretation
of
Section 59A
as allowing release
on warning.
[65]
I do not agree herewith as set out above.
Reference to
Section 72
of the CPA takes the matter no further as
this specifically refers only to
Section 59
or
60
and not
Section
59A.
Essentially Plaintiff had no answer to the factual
causation issue set out further below.
[66]
Even if assuming that a Prosecutor would
have granted bail, this raises a factual causation difficulty for
Plaintiff.
[67]
The
Law of Delict
[25]
sets out the
issues relevant to factual causation as follows:
“
The
causing
of
damage through conduct, or, in other words, a
casual
nexus
between conduct and damage, is
required for delict. A person cannot thus be liable if he had
not
caused
any damage. The question of whether there is a causal
nexus
in a particular case is a
question of
fact
that must always be answered in
light of the available evidence and relevant probabilities and that
may in suitable instances be
dealt with first in the course of a
trial. A causal
nexus
is simply something which (factually) exists or does not exist and it
appears that no amount of theorising can take the matter
any
further.
...
There
can be no question of delictual liability if it is not proved that
the conduct of the wrongdoer or defendant
caused
the damage to the person suffering the harm. Whether an act can
be identified as a cause, depends on a conclusion drawn from
available facts and relevant probabilities. The important
question in this regard is:
how
should
one determine whether such a casual
nexus
exist,
in other words, what is the correct test for determining causation?
At the outset it must be emphasised that in most
of the cases that
occur in practice there is no problem in determining in one way or
another whether the conduct of the defendant
has caused harm to the
plaintiff or not. The courts usually succeed admirably in
determining, on the basis of the evidence
and the probabilities of
the given case, whether a causal link exists between the wrongdoer’s
conduct and the damage.
The method employed by the courts in
practice, although frequently expressed in the terminology of the
condition
sine qua non
,
is the obvious one, ie to inquire whether one fact follows from
another. This is indeed the natural way to determine a causal
link.”
[26]
[68]
Clearly it follows that had the standby
prosecutor been approached and had he authorised release on bail this
would not have in
fact resulted in Plaintiff’s release as he
was unable to post bail – he could not have been released on
warning until
he appeared before a court. The causal
nexus
on the facts as required has not thus
been established on the appropriate test set out above.
[69]
In the circumstances Plaintiff’s
claims are dismissed with costs.
__________________________
M.J. LOWE
JUDGE
OF THE HIGH COURT
Obo
Plaintiff
:
Adv
J D le Roux
Instructed
by
: Lessing,
Heyns, Keyter & Van der Bank Inc.,
Port
Elizabeth
Obo
Defendant
:
Adv
F Petersen
Instructed
by
: State
Attorney, Port Elizabeth
[1]
2008
(1) SACR 56
(CC)
[2]
2016
(2) SACR 540 (CC)
[3]
2010
(1) SACR 388.
[4]
Scheepers
v Minister of Safety and Security
2015
(1) SACR (ECG) [17] and [18]
[5]
Minister
of Justice and Others v Tsose
1950
(3) SA 88 (T).
[6]
Commentary
on the CPA : Du Toit 5-14
[7]
Minister
of Safety and Security v Mhlana and Another
2011
(1) SACR 63
(WCC) [15]
[8]
Minister
of Safety and Security v Tyulu
2009
(2) SACR 282 (SCA)
[9]
Minister
of Police v M D Sahalam Dhali
(unreported
ECD CA327/2017 delivered on 26 February 2019)
[10]
1986
(2) SA 805 (A).
[11]
At
818H-I; See also
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367 (SCA).
[12]
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818H
[13]
1988
(2) SA 654 (SE)
[14]
At
658 E-H.
[15]
2014
(1) SACR 217
(SCA) at paragraphs 14 – 17.
[16]
Louw
& Another v Minister of Safety and Security & Others
2006
(2) SACR 178
(T);
Liebenberg
v Minister of Safety and Security
[2009]
ZAGPPHC 88 (18 June 2004).
[17]
Mabona
(Supra)
[18]
[40]
– [48]
[19]
Cf
Sekhoto
supra
[22]
and
MR
supra
at
[57]-[65].
[20]
See
also Section 49(2).
Macu
v Du Toit
1983
(4) SA 629 (A).
[21]
2013(2)
SACR 648 (SCA)
[22]
2003
(1) SA 11
(SCA) at 14–15
[23]
Commentary
on the
Criminal Procedure Act
Du
Toit 9-20
[24]
Kruger:
Hiemtra’s Criminal Procedurce, Updated May 2018, Chapter 9,
Bail,
Section 59A
Attorney-General may authorise release on bail.
[25]
Neethling
– Potgieter – Visser, 7
th
Edition, P183
[26]
See
also more recently:
Barley
and Another v Moore and Another
[2017]
3 All SA 799
(WCC) [66].
Za
v Smith and Another
[2015] 3 All
SA 288
(SCA)