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[2021] ZAECPEHC 20
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Randal Felix v Minister of Police and another (1736/2019) [2021] ZAECPEHC 20 (13 April 2021)
NOT
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case No: 1736/2019
In the matter
between:
RANDAL
FELIX
Plaintiff
And
MINISTER OF POLICE
1
st
Defendant
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
2
nd
Defendant
JUDGMENT
Govindjee AJ:
Background
[1]
The plaintiff claims compensation against the defendants for
unlawful
arrest and subsequent detention. The parties formulated the issues
for determination as follows:
a.
Whether the plaintiff’s arrest and initial detention (detention
before the first court appearance) was
lawful or unlawful and whether
the arresting officer exercised his discretion at all or in a
rational manner;
b.
Whether the plaintiff’s further detention after the first court
appearance until his release was lawful
or unlawful;
c.
Whether the plaintiff is entitled to any general and/or special
damages in respect of these claims.
[2]
The plaintiff was arrested on 9 November 2016 on a charge of
sexual
assault. He was detained at the Hankey Police Station and appeared
before a magistrate at Hankey Magistrate’s Court
on 10 November
2016. He was remanded in custody and spent time at St Albans prison.
He was only released on bail on 15 December
2016 and the case was
eventually withdrawn in January 2018.
[3]
The plaintiff claims R50 000 damages against the first
defendant
for wrongful and unlawful arrest. The claim against first defendant
for unlawful detention is based on the conduct of
the investigating
officer, and the alleged failure to properly investigate the matter
and to take steps to release the plaintiff
from detention as soon as
possible. The claim against the second defendant for unlawful
detention relates to the prosecutor’s
conduct in persisting
with the case against the plaintiff, and failing to take steps to
ensure his release, whereas no reasonable
grounds existed for his
continued detention. The outcome, it is suggested, was a violation of
various constitutional rights justifying
a damages claim against the
defendants, jointly and severally, in the amount of R750 000.
Evidence
[4]
The plaintiff testified first, by agreement between the parties
and
with the consent of the Court, for practical reasons. He is a
52-year-old seasonal worker earning R300-R350 per month. He has
two
children and is engaged to be married. The plaintiff was previously
convicted of rape.
[5]
The plaintiff was at home on 7 November 2016. A neighbour,
Dalene
Plaatjies (‘Plaatjies’), was hanging up washing in his
yard. Her sister, Heidi Plaatjies was sitting in the
yard and asked
him to go to the shop to purchase a tablet. He went to fetch his
jacket from his bedroom, which had no door but
only a curtain. Two
young children were playing, jumping from one bed to another. He took
his jacket from a wardrobe and exited.
Plaatjies was standing by the
curtain and instructed the children to accompany her. The plaintiff
took the money from her sister
and went to the shop, which was a few
doors down the street. The children had been taken across the road to
a neighbour.
[6]
The street was full of people when the plaintiff returned from
the
shop. The plaintiff asked Plaatjies about this and told her that he
had not done anything to the children. The police arrived
and took
Plaatjies and the children to the police station. The plaintiff heard
later that the police were looking for him. He was
not at his home at
the time but had no concerns about the incident. He went to the
police station of his own accord the next day.
A detective was called
from Humansdorp and engaged with the plaintiff. The plaintiff
indicated to the detective that he had not
done anything wrong and
was told that a complaint of sexual assault had been laid. The
plaintiff was then charged, had his fingerprints
taken and was locked
up at the Hankey Police Station for the night. The conditions there
were good. He was taken to the Magistrate’s
Court in Hankey the
next day and the case was postponed with no mention of bail. Nothing
was placed on record at the time.
[7]
The case was postponed to 17 November 2016 and the plaintiff
was
incarcerated at St Albans prison until then. The cells were
overcrowded, people slept on the floor or had to share beds. The
court seemed full of people interested in the case when the plaintiff
appeared in court on that date. The matter was again postponed
without enquiry or any information placed before the magistrate.
[8]
The plaintiff experienced the same conditions at St Albans
between 17
November and 1 December 2016. He slept badly and there was minimal
food. His court experience on 1 December was similar
and he returned
to St Albans until 12 December 2016, when he appeared in court again.
These court appearances took approximately
a minute each. No evidence
was led and he was released on R500 bail on 15 December 2016. The
case was eventually withdrawn on 18
January 2018. The plaintiff
confirmed that he had Legal Aid representation subsequent to his
first court appearance.
[9]
Under cross-examination, the plaintiff confirmed that Plaatjies
had
alleged that he had sexually assaulted a child when she reported the
matter to the police. The child was approximately six
years old and
had also made a statement together with another child. This had led
to his arrest and his constitutional rights had
been explained to
him. He denied that the arresting officer could have formed a
reasonable suspicion to arrest, and had subsequently
spent time in
prison for no reason, since the charges had ultimately been dropped.
The plaintiff blamed this mainly on the Magistrate’s
Court.
[10]
The plaintiff admitted that he had been on parole for 20 years from
2003 and had
violated his parole conditions by visiting a friend at
the time that Sergeant Grooboom had looked for him on 8 November
2016. He
was asked by the magistrate if he wanted to bring an
application for bail or legal assistance when he was first brought
before
that court on 10 November 2016. He had elected to apply for
legal aid and had not applied for bail. His recollection of his
subsequent
court appearances was extremely vague. The plaintiff
explained this with reference to his age and the long period of time
that
had elapsed. He admitted giving names of two friends of his wife
(Krige and Basterman) and that his attorney had wanted to consult
with them on 1 December 2016. An alternative address was provided on
12 December 2016 and the plaintiff had been released on bail
once
that address was confirmed.
[11]
Sergeant Mzwamadoda Grootboom, the investigating officer, testified
that he was a
detective working for SAPS for more than 16 years,
based in Humansdorp. His duties since 2012 involved investigation of
sexual-related
offences. He had been informed about the incident
involving the plaintiff and had driven to Hankey Police Station.
Constable James
was busy with the complainants at the time, opening a
docket. He observed two children aged between 6 and 7 years of age
accompanied
by one or two adult ladies. He read the statements that
had been taken from Plaatjies, Nadine Witbooi and Anisha Lewis. The
statements
formed a major part of the cross-examination and various
parts of these statements bear repeating:
D Plaatjies:
2.
‘
Op Maandag
2016-11-08 ongeveer na 17h00 was ek oppad na my bure se wasgoedlyn om
my wasgoed te was en op te hang. Terwyl ek verby
die huis van my bure
loop het ek gehoor hoe praat Randall in die huis met die kinders. Sy
woorde was ‘Kom aan, kom aan’.
Ek het om due huis geloop
en Anisha wat wel bekend aan my he geskreeu ‘Hier kom hulle,
hier kom hulle
’
. Ek het daadelik agterdogtig begin word
toe ek die kind hoor skreeu.
3.
Ek het deur die
kombuis na die kamer van die huis geloop. Toe ek in die kamerdeur kom
toe sien ek Nadine Witbooi wat ook welbekend
is aan my spring van die
een bed na die ander bed teryl Randal Felix voor die bed gestaan het
waarvandaan Nadine gespring. Ek het
Randal gevra hoekom hy nou nog
daar staan my suster het hom mos lankal gestuur Hy het gesê hy
is besig om ‘n jacket
aan te trek. Ek het op daardie oomblik
nie ‘n jacket in sy hande gesien nie. Hy het na die rigting
beweeg waar die klere
klas was om ‘n jacket te soek.
4.
Ek het met die twee
kinders Nadine Witbooi en Anisha Lewis voor in die sitkamer gaan sit.
Randal het intussen verby gekom en uit
betweeg hy het vir die kinders
gesê hulk moet by my wag. Ek het Anisha gevra hoekom het sy
geskreeu en gesê Oom Randa
wou snaakse goete “stoutdoen”
“sex” met Nadine @Stokke. Ek het my suster geroep en
gevra om Nadine @Stokke
se ma te gaan roep daa was Niemand volwasse
genoeg in die huis om toe te sien na die kinders daardie oomblik.
5.
Ek het die volunteer
van Victim Sentrum Clementi Peters gevra om verder met die kinderste
praat want ek was te emosioneel. Na die
onderhoud met kinders was die
polisie gekontak. Ek is baie bekommerd oor Nadine Witbooi want daar
is nie volle beheer oor haar
nie. Ek verlang verdere polisie ander
soek.”
N W:
“
2.
Op Maandag 2016-11-07
ongeveer na skool die middag het ek en my maatjie A L wat netso oud
is soos ek by hulle huis gespeel. Ons
het daarna oorkant na ons huis
gegaan speel daar was niemand by ons huis nie. Ek en A was in ons
huis in die kamer. Oom Randall
wat bekend is aan my het daar
aangekom. Oom Randall Feliz my ouma se boyfriend het gesê dat A
my tjommie moet by die venster
staan waar die gordyn is en kyk of
daar nie mense kom nie.
3.
Oom Randall het my
gevat en my op die bed neergelê op my rug. Ek was nie bang
omdat ek hom ken hy slaap en bly daar by my
ouma se huis. Oom Randall
het met sy hele liggaam op my bors gelê. Hy het snakkse goete
met my gedoen. Hy het op en af beweeg
op my liggaam ek het al my
klere en onderklere aangehad en ook oom Randall. A my tjommie het
geskreeu hier kom hulle toe speing
‘n van my af en soek aan sy
jersey. Ant Dilene het daar ingekom en gevra hoekom ons sê hoer
kom hulle wat het dan gebeur.
Ek het niks gepraat nie. A het Ant
Dilene gesê dat Oom Randall het my stoutgemaak.
4.
Ek het vir Ant Dalene
gesê wat met my gebeur het. Dit was nie reg was Oom Randall met
my gedoen het nie. Ek het niemand die
reggegee om met sy stout te
maak. Ek verlag verdere polisie ondersoek.”
A.
L
“
2.
Op Maandag 2016-11-17
ongeveer na 17h00 het ek en my maatjie N W @Stokke se huis
gegaan. Terwyl ons in die huis was het oom
Randall daaraangekom. Daar
was Niemand grootmens “Volwasse behalwe oom Randall in die
huis. Terwyl ek en N @Stokke in die
kamer was het Oom Randall ges ej
moet by die venster waar ‘n gordyn is. Staan en kyk of daar nie
mense aankom nie.
3.
Oom Randall Felix was
bekend is aan my het vir @ Stokke N op die bed op haar rug gelê.
Sy het al haar klere aangehad. Hy het
gesê ek moet die venster
dop hou. Ek het gesien hoe oom Randall met sy klere aan op Stokke @ N
sy bors klim hy het haar stoutgemaak
“sex”. Ek het oemand
hoor aankom en gesê “Hier kom hulle”. Toe e nog so
praat toe sien ej antie Dalene
staan in die kamer deur. Antie Dalene
het Oom Randall gebra of haar suster hom nie lankal gestuur het hy
het gesê hy wil
n jacket aantrek. Hy het sonder ‘n jacket
gestaan. Antie Dalene het met ek en Stokke @ N in die voorhuis gaan
sit. Oom Randall
het die die kamer gekom en gesê da tons net
daar by haar moet bly.
4.
Antie Dalene het gevra
hoekom ek dan so geskreeu het “Hier kom hulle” toe sy
aankom wat het gebeur. Ek het dadelik aan
Anti Dalene gesê dat
Oom Randall het “Stokke @ stoutgemaak. Anti Dalene het Stokke
se ma laat roep want daar was niemand
by die huis wat groot was nie.”
[12]
Grootboom testified that he considered Plaatjies’ statement,
read with the
other two statements, to mean that the plaintiff had
sexually assaulted Witbooi on Monday 7 November. He interviewed
Plaatjies
and Witbooi to confirm this. The latter confirmed that both
she and the plaintiff had their clothes on at the time of the
incident.
Grootboom took this as confirmation that there had been no
rape, but that a sexual assault was committed. He considered the
docket,
including the investigation diary containing the address of
the plaintiff, and proceeded to look for him. He had also noted as
important the information that the plaintiff and victim of the
alleged offence stayed at the same address, and that this was not
the
plaintiff’s first offence. The plaintiff was not at the stated
address and Grootboom left a message for him on 8 November
2016.
[13]
On 9 November 2016, Grootboom visited the Department of Correctional
Services and
considered their records. The plaintiff was on their
system and on parole following the rape conviction. He
requested the
correctional officer to print the parole conditions. He
considered the plaintiff to be a high-risk person under practically
permanent
house detention. He looked for the plaintiff again without
success and left another message for him before returning to
Humansdorp.
He received a call that the plaintiff was looking for him
and at the Hankey Police Station. He returned to Hankey, introduced
himself
and arrested the plaintiff, informing him of his rights in
English and giving him a copy of the applicable document. The
plaintiff
acknowledged that he understood his rights and was
detained. As it was the afternoon, the plaintiff could not be taken
to court
until the following day.
[14]
Grootboom testified that he was ready to oppose bail on that day (10
November 2016)
because of the seriousness of the alleged offence,
because the plaintiff was on parole for a similar offence and because
he resided
at the same address as the minor complainant. He had the
witness statements at hand and the parole conditions were already in
the
docket. He had also already deposed to an arrest statement by
that time, and had taken the plaintiff’s warning statement.
No
application for bail proceeded on that day, and the case was
postponed. The witness confirmed that he had no discretion to release
the plaintiff on warning given the seriousness of the allegation.
[15]
The investigation diary shows that the public prosecutor requested
the investigating
officer to answer various questions on 10 November
2016. Grootboom had responded on 15 November and again on 29 November
2016,
in respect of a further enquiry. Grootboom was instructed to
attend the bail hearing scheduled for 1 December 2016. On that date,
the prosecutor noted that the defence wanted to consult with Krige
and Basterman, and the prosecutor again requested Grootboom
to check
whether the alleged victim had been penetrated, to which he responded
on 5 December 2016. On 12 December 2016, the prosecutor
made another
note in the investigation diary for Grootboom. He was to follow up on
an alternative address to see whether the plaintiff
could reside
there, and to ensure that no minor female children lived at the
specified address. He confirmed that information on
14 December 2016
and the plaintiff was released on bail on 15 December 2016.
[16]
Grootoom testified that he was ready to deal with a bail application
on the plaintiff’s
first appearance in court on 10 November
2016. He believed he had no power to do anything other than wait for
the prosecutor and
court for further instructions. It was put to him
in cross-examination that he should have investigated an alternative
address
at an earlier stage, particularly because the plaintiff
resided in the same house as the minor child complainant. He
responded
that this did not cross his mind given the seriousness of
the alleged offence and the importance of safeguarding the minor and
community. He admitted that he had not taken a statement from the
child’s mother and had also not approached the Victim Support
Centre or Plaatjies’ sister. Grootboom explained that
Plaatjies’ statement suggested that the child’s mother
did not take full responsibility for her and no request for such
information had been received from the prosecutor. He had also
not
been able to access the inside of the house to consider aspects of
the plaintiff’s version of events. Grootboom had also
never
obtained an additional statement from the victim and witness in
respect of what they understood about the word ‘stoutmaak’,
as requested by the prosecutor on 10 November and 17 November 2016.
His commander had re-iterated that request and he had only
followed
some of the instructions received at that point. Grootboom had,
however, noted on 15 November 2016 that Constable James
was to obtain
the statement requested since the child only spoke to her and James
was Afrikaans speaking. He considered the host
of suggested
contradictions in the various statements obtained to be minor, and
that the overall picture of events remained consistent.
[17]
Advocate Du Toit testified that she was a public prosecutor employed
by the National
Prosecuting Authority and based in Hankey during
2016. She had been working as a public prosecutor for 14 years at
that time, and
was responsible for prosecuting the case involving the
plaintiff. She received the docket on 10 November 2016 and her role
entailed
considering the statements and evidence before deciding
whether to place the matter on the roll. She was satisfied that the
plaintiff
was sufficiently linked to the complaint and enrolled the
matter. On the first court appearance, Du Toit had read the charge
and
the magistrate had taken time to inform the plaintiff of his
rights, including the possibility of applying for bail. The plaintiff
had elected to apply for legal aid and had not applied for bail on
his first court appearance.
[18]
The matter had been remanded from 10 November to 17 November 2016 for
Mr Alberts,
a legal aid practitioner, to represent the plaintiff.
Alberts had needed time to consult with the plaintiff and the matter
had
once again been remanded until 1 December 2016. On that date,
Alberts had requested assistance from the investigating officer to
consult with certain witnesses (Krige and Basterman) and Du Toit had
instructed Grootboom to assist in that regard. Importantly,
Alberts
had advised Du Toit that he would decide whether or not to proceed
with the bail application depending on the information
he obtained
following the consultations. The state was ready to proceed and
Grootboom had been advised on the first appearance
to prepare for the
bail application and to be ready at any time. The investigation diary
entries confirmed this. The plaintiff
had not applied for bail and
had not requested to be released.
[19]
On 12
December 2016, Alberts approached Du Toit having consulted with the
witnesses and discussed the possibilities of bail if an
alternative
address was provided. Du Toit subsequently instructed Grootboom to
verify the situation at the address provided. Du
Toit considered
these discussions to be negotiations. The attitude of the second
defendant was to proceed with a formal bail application
and to allow
the court to decide whether the plaintiff should be released on bail.
Following an application on 15 December 2016,
the plaintiff was
released on R500 bail. Du Toit testified that it was the duty of the
plaintiff to place facts before the court
to justify the existence of
exceptional circumstances for purposes of bail given that the alleged
offence formed part of Schedule
6 of the
Criminal Procedure Act,
1977
.
[1]
Alberts would have
informed the plaintiff in this regard once he had been appointed as
legal representative. Du Toit had never
withdrawn the charges; the
matter had been transferred to the Regional Court and the case was
withdrawn there.
[20]
Under cross-examination, Du Toit stated that she did not consider the
statements
contained in the docket to be inconsistent. Individual
words could not be read in isolation. There was no material
difference between
‘snaakse goed’ and ‘stoutmaak’
when read in context. The statements made it clear that the plaintiff
was
on top of the child and her enquiry in relation to penetration
was out of concern for the child, and to investigate whether a more
serious offence had been committed. Du Toit was convinced of the case
in respect of sexual assault. Asking the investigating officer
to
obtain a statement from Plaatjies’ sister would not have taken
the matter further. It was also unnecessary in the circumstances
to
obtain another report from Victim Support or to consult with the
children involved, since the regional court prosecutor would
do that.
Her further comments to Grootboom in the investigation diary were due
diligence enquiries, and were influenced by the
plaintiff being on
parole for 20 years following the rape conviction. Regarding the
timing of the enquiry in respect of the alternative
address, Du Toit
noted that she was open to investigate all possibilities in respect
of the plaintiff’s release, but that
this ultimately depended
on the court. The instruction that had been communicated to Grootboom
to verify the alternative address
had been issued at the request of
Alberts. There was no guarantee that the plaintiff was going to be
released. Alberts was on record
for the plaintiff since 17 November
2016, and the matter had been remanded at his request until 1
December 2016 for a formal bail
application. Alberts had not
proceeded with the bail application on that date, as he wanted
clarification on some matters. Du Toit
had assisted him with his
request in respect of an alternative address when that issue arose,
at the instance of Alberts, and then
played a proactive role. Alberts
was still considering the bail application when the matter was
postponed from 12 December until
15 December 2016, when the plaintiff
was eventually released.
The pleadings
[21]
The
plaintiff claims that his arrest without a warrant for sexual assault
by an employee of the first defendant was wrongful and
unlawful. Any
suspicion that the plaintiff had committed an offence referred to in
Schedule 1 of the
Criminal
Procedure Act
>,
1977
[2]
(‘the
CPA’
)
could not have been reasonable. Proper investigation would have
clarified this. There was no basis for suspecting that the plaintiff
would abscond or fail to appear in court had a summons or written
notice been issued, and it was foreseeable that the National
Prosecuting Authority would ultimately not prosecute the matter and
that the charges were likely to be withdrawn. It was further
claimed
that the plaintiff had been unlawfully detained from 9 November until
15 December 2016, and that the first defendant was
liable for this.
In particular, there were no grounds for the detention, simple
investigative steps were not taken and the prosecutor
was not
properly informed that there was no basis for linking the plaintiff
to the alleged crime. No steps were taken to release
the plaintiff
from detention as soon as possible and the first defendant opposed
the plaintiff’s release on bail.
[22]
In respect of the second defendant, it was the prosecutor that had
caused the magistrate
to remand the plaintiff in custody. This was
caused by the failure of the prosecutor to acquaint herself with the
docket, which
demonstrated the lack of reasonable grounds or
justification for the continued detention. Charges were not promptly
withdrawn and
the magistrate was not properly informed that there
were no objective facts reasonably linking the plaintiff to the
alleged crime.
No steps were taken to ensure that the plaintiff was
released from detention as soon as possible. The plaintiff suffered
damages
resulting from a violation of his constitutional rights.
Analysis
[23]
Was the
plaintiff’s arrest lawful and did the arresting officer
properly exercise his discretion to arrest the plaintiff for
sexual
assault? The position in respect of
section 40(1)(b)
of the
CPA
has been clarified in
Duncan
v Minister of Law and Order
.
[3]
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.
[24]
The burden
of proof rests on the first defendant in this regard. It is the
requirement that the suspicion must rest on reasonable
grounds that
was placed in issue in this matter. Put differently, Grootboom’s
suspicions, in order to be reasonable, must
be objectively
sustainable in that those suspicions must have rested upon reasonable
grounds.
[4]
In
Mabona
& Another v Minister of Law and Order and Others
,
[5]
the court held as follows in relation to the notion of a ‘reasonable
suspicion’ and the objective test that is applicable:
‘
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 authorizes drastic
police action. It authorizes 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.’
[6]
[25]
Grootboom testified that he considered Plaatjies’ statement,
when read together
with the two children’s statements, to
constitute sufficient grounds to suspect that the plaintiff had
sexually assaulted
Witbooi. He interviewed Plaatjies and Witbooi to
confirm his suspicions. The statements in question, when read in
totality, are
extremely suspicious. The plaintiff is heard saying
‘Kom aan, Kom aan’; Lewis, standing guard at the window
at the
request of the plaintiff, shouts ‘Hier kom hulle, hier
kom hulle’. Whether ‘snaakse goete’ or ‘stoutdoen
sex’, Plaatjies’ understanding of events is clear. Those
suspicions are clearly reinforced by the statements of both
children:
the plaintiff placed Witbooi on her back on the bed and lay on top of
her, doing ‘snaakse goete’ to her,
moving up and down on
her while fully clothed. He jumped off her when Lewis screamed. For
Lewis, what happened was as follows:
“Ek het gesien hoe Oom
Randall met sy klere aan op Stokke @ Nadine se bors klim…hy
het haar stoutgemaak ‘sex’…”
[26]
Even when
considering the plaintiff’s expressed denial at the time, the
only reasonable conclusion to draw is that Grootboom
had analysed and
weighed the information available, checking what could be checked to
form the mature suspicion that the plaintiff
had committed the
offence of sexual assault on a minor child, which is a Schedule 1
offence, and should be arrested.
[7]
Grootboom’s suspicions cannot be said to have been flighty or
arbitrary and a reasonable person in his position would have
considered that there were good and sufficient grounds for the
suspicion he held. The arguments advanced by Mr Swarts in respect
of
the expected conduct of the investigating officer go too far and
exceed the boundaries of an arrestor’s process of forming
a
reasonable suspicion and properly exercising a discretion. The
jurisdictional facts were therefore satisfied and Grootboom exercised
his discretion lawfully and reasonably in deciding to effect the
arrest. On the plaintiff’s own version of events on this
point,
that decision would have been fortified in Grootboom’s mind by
the plaintiff being absent from his home when Grootboom
searched for
him on 8 November 2016, in clear violation of his parole conditions.
The arrest, in the circumstances, amounted to
an effective method of
initiating a prosecution and bringing the plaintiff before court.
[27]
Once the
jurisdictional facts have been satisfied, the peace officer may
arrest the suspect and the effect is that the arrested
person is
considered to be in lawful custody, to be detained until lawfully
discharged or released.
[8]
The
arrestee should then be brought before court as soon as possible, but
not later than 48 hours after the arrest.
[9]
The initial detention was not seriously challenged by the plaintiff,
who was brought before court as soon as possible and well
within the
48-hour period. That initial period of police detention, following
the lawful arrest, is found to have been lawful.
[10]
[28]
Was the
plaintiff’s further detention, after his first court appearance
until his release, lawful? Section 35(2) of the Constitution
of the
Republic of South Africa, 1996 (‘the Constitution’)
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. An accused
who is in custody
in respect of an offence shall be informed by the court of the
reasons for his or her further detention or be
charged and entitled
to apply to be released on bail.
[11]
The accused is entitled to be released on bail, subject to the
provisions of section 50(6) of the CPA, at any stage preceding
conviction, if the court is satisfied that this is in the interests
of justice.
[12]
If the
question of the possible release of the accused on bail is not raised
by the accused or the prosecutor, the court shall
ascertain from the
accused whether he or she wishes that question to be considered by
the court.
[13]
As is evident,
there is a fine interplay amongst three different institutions of
government in this process:
[14]
‘
The police carry
the responsibility to ensure a criminal suspect is brought before a
court as required by s 35(1)(d). This is an
administrative function
to be exercised within the broader executive authority of government.
The decision to charge a suspect
under s 35(1)(e) is one that falls
under the authority and competence of the National Prosecuting
Authority, an independent institution
under the Constitution. The
decision to release or detain a suspect falls within the independent
judicial authority or competence
of the judiciary.’
[29]
The
arrestor has a limited role in respect of determining whether a
suspect ought to be detained pending a trial. That is typically
the
role of the court which, together with the prosecuting authority,
fulfils a key function from this point. In
Minister
of Police and Another v Du Plessis
,
the Supreme Court of Appeal defined the latter’s role as
follows:
[15]
‘
Once an arrestee
is brought before a court, in terms of s 50 of the Criminal Procedure
Act 51 of 1977 (CPA), the police’s
authority to detain,
inherent in the power of arrest, is exhausted…As pointed
out…in the court below, before the
court makes a decision on
the continued detention of an arrested person comes the decision of
the prosecutor to charge such a person.
A prosecutor has a duty not
to act arbitrarily. A prosecutor must act with objectivity and must
protect the public interest.’
[30]
The uncontested evidence of Du Toit confirms that the plaintiff was
charged on the
first court appearance. Far from being an arbitrary
execution of duties, Du Toit had clearly given proper consideration
to the
statements before her and had satisfied herself that a charge
of sexual assault was warranted in the circumstances. The magistrate
had informed the plaintiff of his rights, including the possibility
of applying for bail. As the plaintiff confirmed, he elected
to apply
only for legal assistance on that date.
[31]
In terms of
section 60(11)(a) of the
CPA
,
and notwithstanding any other provision of that Act, where an accused
is charged with any offence referred to in Schedule 6, the
court
shall order that the accused be detained in custody until dealt with
in accordance with the law. The accused may, however,
having been
given the opportunity to do so, adduce evidence which satisfies the
court that exceptional circumstances exist which
in the interests of
justice permit his or her release.
[16]
This is consistent with the section 35(1)(f) constitutional right to
be released from detention if the interests of justice permit,
subject to reasonable conditions. Schedule 6 includes rape and makes
reference to ‘an offence referred to in Schedule 5 and
the
accused has previously been convicted of an offence referred to in
Schedule 5 or this Schedule…’ The offence of
sexual
assault is listed in schedule 5 and, when considering the previous
rape conviction, constitutes a schedule 6 offence.
[32]
The onus
placed on the accused in terms of these provisions must, however, not
be confused with the public law duties of the police
and the public
prosecutor:
[17]
‘
The rights and
duties of the police and the prosecutor which may arise from the
position of the burden of proof in bail proceedings
must not be
equated with their public law duties which may arise from the
Constitution, and given content by the prosecutor’s
special
relationship with the court and the role which he fulfils in criminal
proceedings. Once an accused person is brought before
a court, the
authority to detain him, which arises from the power to arrest a
suspect, is exhausted. His further detention is then
within the
discretion of the court. That discretion is subject to wide ranging
statutory directions. Section 60(11)(a) provides
that court must
order that an accused person be detained in custody pending his
trial, unless the accused satisfies the court that
exceptional
circumstances exists which in the interest of justice permits his
release. While section 60(11)(a) may shift the burden
of proof to the
accused, the issue remains essentially the same as in any other
proceedings where a court is called upon to decide
the question of
the release of an accused on bail, namely a judicial determination
whether his release from detention is in the
interest of justice.
Because an order made in terms of section 60(11)(a) affects the
freedom of the person concerned, it brings
into play his entrenched
right in section 12(1)(a) of the Constitution not to be deprived of
his freedom arbitrarily or without
just cause. That means, as in the
case of
Woji v Minister of Police
, that the police and the
prosecutor may be found to have a public law duty to assist the court
in giving effect to, and protecting
the entrenched right of the
accused in section 12(1)(a).’
[33]
A Schedule
6 charge, coupled with the burden to place exceptional circumstances
before the court in order to be released on bail,
does not relieve
the police and prosecutor from further disclosures to the court in
appropriate circumstances. For example, if
there was no evidence to
substantiate the charges, or the only evidence implicating the
accused is weak or entirely dependent upon
the admission of hearsay
evidence emanating from a co-accused, it would be expected for
detailed disclosures to be forthcoming.
[18]
[34]
I am not
convinced that this case falls within that bracket. Unlike cases such
as
National
Director of Public Prosecutions v Swarts
,
[19]
there are no objective facts pointing to it being in the interests of
justice for the plaintiff to have been released at the time
of his
first appearance in court, or thereafter, until his representative
was prepared to proceed with the bail application. To
borrow from
Schuster
,
no matter what the facts that may have been put before the magistrate
by the prosecutor on that date, these would not have prevented
the
detention of the plaintiff until the formal bail hearing.
[20]
There is also no suggestion in this matter that a malicious
prosecution was being perpetuated.
[21]
On the contrary, the conduct of the public prosecutor, in
particular, cannot be faulted. There was also no evidence of wrongful
conduct on the part of the police subsequent to the lawful arrest
which, as a separate delict, caused the plaintiff to be deprived
of
his liberty after the first court appearance.
[22]
While it is so that the investigating officer did not comply with all
the public prosecutor’s instructions immediately, for
various
reasons, these enquiries were directed towards ascertaining whether
there had been penetration, which may have resulted
in a rape charge.
Considering all the information available to the public prosecutor
and investigating officer at the time, it
is understandable that
their focus remained on opposing the formal bail application, which
was expected to proceed on 1 December
2016. (Alberts was appointed as
representative on or about 17 November 2016 and had requested a
remand in order to consult with
the plaintiff.) This is evident from
the trail of correspondence in the investigation diary, and
particularly the prosecutor’s
note on 17 November 2016:
“
IO, Although I
have appreciation for your explanation just because they had clothes
on does not mean that he didn’t penetrate
her. I still need an
explanation as to what she understands about ‘stoutmaak’.
If necessary take the victim to a social
worker or file a report etc.
This accused is on parole for raping a child. Please obtain his
parole conditions & prepare yourself
for a FBA on 1.12.16.”
[35]
It is equally clear that the matter was postponed on 1 December 2016
at the instance
of the defence, in order for Alberts to consult with
Krige and Basterman. That the prosecutor reiterated her request for
the alleged
victim to be taken for a medical examination to determine
whether she had been penetrated was, in all probability, out of
concern
for the child and because of the possibility of rape,
particularly given the plaintiff’s prior conviction. It is
clear that
this issue was not the direct cause of the further remand.
Similarly, the postponement on 12 December 2016 would have followed
from a request from Alberts for the alternative address to be
checked, given the likely complexities of the bail application: the
plaintiff resided in the same house as the minor complainant, was
charged with sexual assault of a minor and had previously been
convicted of rape. In the circumstances, the delays occasioned cannot
be placed at the door of the defendants.
[36]
The reality
of this matter is that it was by order of court that the plaintiff
remained in detention until released on bail, and
that the defence
took its time to prepare for a formal bail application, including
engaging in discussions with the prosecutor
about the possibilities
in that regard.
[23]
In respect
of the role of the court, the Supreme Court of Appeal has noted as
follows in
Mahlangu
:
‘
Court orders
providing for judicial detention are constitutionally significant. As
a general principle, all court orders…have
force from the
moment that they are issued, and are binding until set aside
(irrespective of whether or not the orders concerned
are valid, and
whether correctly or incorrectly granted), or otherwise impugned at
the instance of the person who alleges that
it should be impugned,
where it might not be required to actually set the order aside. An
invalid order is not a nullity. Even
in the absence of a contested
bail application, every court order, including the initial order for
detention, should be a deliberative
judicial act and must consider
the rights of the arrested person and weigh those in the scales of
justice against the interest
of the public to have persons reasonably
suspected of being perpetrators of crime detained, where appropriate,
pending their prosecution.
A court order which simply directs the
detention of an accused person without giving due consideration to
these constitutional
imperatives, as occurred in the notorious
‘reception courts’ and
De
Klerk
,
is liable to be impugned. Where an order for detention is impugned
successfully, it is desirable that such order should be set
aside
rather than be allowed to remain in existence with an uncertain
status.’
[24]
[37]
In
addition, there is no evidence to suggest that the court in which the
plaintiff appeared was a ‘reception-type’ court.
The
magistrate’s remand orders were not impugned and remained valid
and binding, causing the continued lawful detention of
the plaintiff.
That detention cannot be ascribed to the actions or omissions of any
of the defendants.
[25]
There
was, on the documentation available, just cause for the plaintiff’s
deprivation of liberty during that time. There
is no evidence of
wrongful conduct on the part of the defendants which caused the
further judicial detention of the plaintiff,
who had to remain in
custody until the requirements for his release on bail could be
satisfied. The bail application proceeded
when plaintiff’s
representative was ready to proceed in that regard, presumably with
the full consent of the plaintiff.
[26]
That the bail application did not proceed sooner, given the
circumstances surrounding each of the remand orders, cannot be blamed
on the defendants in this case. As in
Mahlangu
,
it is clear that the plaintiff was never prevented from applying to
be released on bail:
[27]
‘
Public policy
considerations, determined with reference to constitutional values
and the constitutional order referred to above,
limit liability for
the continued judicial detention to the stage where it could
reasonably be expected of the plaintiffs to have
pursued a bail
application to finality…The onus was on the plaintiffs to
prove why they did not pursue a bail application.’
[38]
In sum, the conduct of the defendants did not cause the plaintiff’s
detention
beyond 10 November 2016. Despite reasonable grounds
existing for his continued detention, the plaintiff could have
applied to be
released on bail at an earlier stage in consultation
with his representative. The plaintiff’s further detention
after the
first court appearance until his release was lawful and the
plaintiff is not entitled to any damages from the defendants in
respect
of his claims.
[39]
The present
case is not a constitutional matter in the sense that the
Biowatch
principle ought to be evoked.
[28]
This case turned on the facts and costs must follow the result.
Order
[40]
In the result I make the following order:
1.
The plaintiff’s claims are dismissed, with costs.
_________________________
A. GOVINDJEE
ACTING JUDGE OF THE
HIGH COURT
Appearances:
Obo the
Plaintiff
:
Mr L. Swarts, Swarts Attorneys
80 Standford Road,
Korsten, Port Elizabeth
Obo the 1
st
Defendant
:
Adv B. Ndamase / Adv L. Ntikinca
Instructed
by
:
State Attorneys,
29 Western Road, Central,
Port Elizabeth
Obo the 2
nd
defendant
:
Adv. M du Toit
Instructed by
:
State Attorneys,
29 Western Road, Central,
Port Elizabeth
Heard
:
16 – 18 March
2021
Delivered
:
13 April 2021
[1]
Act 51 of 1977.
[2]
Act 51 of 1977.
[3]
1986 (2) SA 805
(A) at 818H-I. Also see
Minister
of Safety and Security v Sekhoto and another
2011 (5) SA 367 (SCA).
[4]
Duncan
supra
at 818H.
[5]
1988 (2) SA 654
(SE) as quoted in
Mahleza
v Minister of Police and Another
[2019] ZAECGHC 137;
2020 (1) SACR 392
(ECG) at para 11.
[6]
At 658 E-H.
[7]
Mabona
supra
.
[8]
Section 39(3) of the CPA.
[9]
Section 50(1)(c) of the CPA.
[10]
See
Jacobs
v Minister of Safety and Security
[2013]
ZAECGHC
at
para 40.
[11]
Section 50(6)(a) of the CPA.
[12]
Section 60(1)(a) of the CPA.
[13]
Section 60(1)(c) of the CPA.
[14]
Froneman J in
De
Klerk v Minister of Police
[2019] ZACC 32
at para 132 (citations omitted) as cited in
Mahlangu
and Another v Minister of Police
[2020] ZASCA 44
at paras 14, 15.
[15]
[2013] ZASCA 119
at para 28 (citations omitted
);
2014 (1) SACR 217 (SCA).
[16]
Section 60(11)(a) of the CPA.
[17]
Singata
and Another v Minister of Police and Another
[2015] ZAECBHC 19 at para 41.
[18]
Singata
supra at paras 42, 43;
Alse
see
National
Director of Public Prosecutions v Swarts
[2020]
ZAECGHC 64 at para 15.
[19]
Supra
at
para 17.
[20]
Minister
of Safety and Security and Another v Schuster and Another
[2018] ZASCA 112
at para 14.
[21]
Minister
of Safety and Security v Tyokwana
[2014] ZASCA 130
at para 38.
[22]
Mahlangu
supra
at
paras 23, 25.
[23]
See
Stuurman
v The Minister of Police and Another
(unreported) (case no. 1836/2019, ECD) at para 54
et
seq
.
[24]
Supra
para 17.
[25]
See
Mahleza
v Minister of Police and Another
[2019] ZAECGHC 137 at para 29.
[26]
Mahlangu
supra
at
para 39.
[27]
Mahlangu
supra
at paras 40, 41.
[28]
Schuster
supra
at
para
26.