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[2021] ZAECPEHC 21
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Felix v Minister of Police and Another (1736/2019) [2021] ZAECPEHC 21 (13 April 2021)
NOT
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In the matter
between:
Case No: 1736/2019
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bail on 15 December 2016 and the case was eventually withdrawn in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.