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[2012] ZASCA 146
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Mashilo and Another v Prinsloo (576/11) [2012] ZASCA 146; 2013 (2) SACR 648 (SCA) (28 September 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 576/11
Reportable
In
the matter between:-
RADITSHEGO GODFREY
MASHILO
..................................................
FIRST
APPELLANT
MINISTER OF POLICE
....................................................................
SECOND
APPELLANT
and
JACOBUS MICHAEL
PRINSLOO
................................................................
RESPONDENT
Neutral citation:
Mashilo v Prinsloo
(576/11)
[2012] ZASCA 146
(28 September 2012)
Coram:
Mpati P,
Navsa, Nugent, Tshiqi and Theron JJA
Heard:
17 August 2012
Delivered:
28 September 2012
Summary:
Interpretation of
s 50
(1) (b) (c) (d) and (6) of the
Criminal
Procedure Act 51 of 1977
– 48 hours – maximum period
stipulated - police not always entitled to detain a person until that
period expires –
an arrested person has the right to be brought
before court to enable a bail application as soon as is reasonably
possible –
that is the standard to be applied –
s
50(1)
(d)
does extend the period of 48 hours if it expires
outside normal court hours or on a day when the court does not
normally sit –
even then the standard is that an arrested
person is to be brought before court as soon as is reasonably
possible.
_____________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from:
North Gauteng
High
Court, Pretoria
(Du Plessis AJ sitting as court of
first instance):
Leave to appeal to this
court is granted.
The appeal is upheld.
The order of the court
below relating to costs is set aside.
There is no order as to
costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI
JA (
MPATI P, NAVSA, NUGENT AND THERON JJA
CONCURRING
)
On Thursday 19 November
2009, Mr Prinsloo - the respondent - in this appeal, brought an
urgent application in the North Gauteng
High Court for an order for
his immediate release, on his own cognisance, alternatively on bail
on appropriate conditions. He
further sought an order for costs
against the first appellant, Mr Mashilo, a detective stationed at
Kameeldrift Police Station,
Pretoria. Prinsloo had been arrested the
previous day on Wednesday, 18 November 2009, at apparently
16h30 by Mashilo, and
detained at Kameeldrift Police Station. He was
implicated in the murder of his former wife, from whom he was
divorced at the
time. His being implicated arose as a result of a
confession made by the only state witness, who was his gardener at
the time
of the death of his former wife. He had spent the night of
18 November 2009 in detention.
The only version before
the court below, on what had led to the application, was contained
in an affidavit by Prinsloo’s
attorney of record, Mr Kruger.
He stated that he went to the police station on 19 November 2009
after he was called by his
client, Prinsloo. At the police station
he approached Mashilo in an attempt to arrange for Prinsloo to be
taken to court. He
asked Mashilo when the latter intended to bring
Prinsloo before court. His intention was to ensure that his client
was brought
to court as soon as was reasonably possible, before the
weekend intervened, in order to facilitate an application for bail.
The
application was intended to ensure Prinsloo’s release so
that he could care for his two boys, (aged 16 and 18 years
respectively)
who had been left at home alone. Mashilo’s
response was that he was busy; that he was entitled to detain
Prinsloo for a
period of 48 hours prior to him being taken to court
and that he would take him to the magistrate’s court, Pretoria
North,
on Monday morning, 23 November 2009. Kruger informed him that
it was not necessary to detain Prinsloo for a further four days
until that Monday as the latter was not a flight risk and that there
was no danger that he would interfere with the State’s
witness. Mashilo persisted that he was very busy with other things
at the time and refused to accede to Kruger’s request.
Following this exchange Kruger decided to approach the high court.
The application came
before Du Plessis AJ, in chambers on 19 November 2009. After a brief
discussion, the court made an order
directing the National
Prosecuting Authority (NPA) and Mashilo, the first and second
respondents in the court below, respectively,
to take Prinsloo to
the Pretoria North Magistrates’ Court on or before 14h00 on 20
November 2009, failing which he would
be entitled to again approach
the high court on the same papers, for appropriate relief. Mashilo
was further ordered, in the
event of his failure to comply with the
court order, to appear before the high court on 20 November
2009, to show good cause
why a costs order should not be made
against him personally.
On 20 November 2009,
Prinsloo was taken to the Pretoria North Magistrates’ Court as
per the court order. The application
for bail was not heard,
because, so Mashilo alleged, the magistrate who had been approached
to preside over it had taken the
confession from Prinsloo’s
gardener.
The application resumed
before the high court on the afternoon of 20 November 2009, as per
the court order. Kruger informed the
court that there had been
non compliance with its earlier order and he was therefore
persisting with an application for
Prinsloo’s release. He
further informed the court that he had abandoned the prayer for
costs against Mashilo and would,
instead seek a costs order against
the NPA as the application was now in effect against the NPA. At
that stage counsel for Mashilo,
the station commander at Kameeldrift
and the Minister of Safety and Security were all absent. They had
earlier asked Kruger to
request the court to excuse them, because
they thought their presence in court was no longer necessary.
Presumably, their perception
was influenced by the fact that on
resumption, there was no longer any costs order sought against them.
Kruger indeed conveyed
their request to the court.
After hearing argument,
the high court granted an order effectively releasing Prinsloo on
certain conditions. It further ordered
him inter alia, to appear
before the magistrates’ court on Monday for a bail hearing.
Full reasons for the order were provided
in writing on 11 October
2010. In that judgment the court further granted a costs order, not
against the NPA as prayed for
in the subsequent application, but
against Mashilo in his personal capacity. A subsequent application
for leave to appeal against
such an order was refused by the learned
judge.
On 1 December 2011, this
court, (per Navsa and Bosielo JJA), referred the application for
leave to appeal for oral argument in
terms of s 21(3)
(c)
(ii)
of the Supreme Court Act 59 of 1959. It further ordered the parties
to be prepared, if called upon to do so, to address the
court on the
merits.
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
s
50
of the
Criminal Procedure Act, counsel
for the appellant
submitted that this court should consider the merits of the matter.
What was sought to be achieved was a definite
interpretation of that
section. After the concession pertaining to the costs order against
Mashilo was made, it followed that
such an order was an obvious
error. In such circumstances it stands to be rectified in terms of s
22 of the Supreme Court Act.
This then brings me to
the interpretation of the provisions of
s 50(1)
and (6) of the
Criminal Procedure Act which
reads as follows:
‘
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
,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;
…
(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 subsection 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; or ….
Section 50(2)
defines 'a
court day' to mean a day on which the court in question normally
sits as a court and 'ordinary court day' has a corresponding
meaning. 'Ordinary court hours' is defined as meaning the hours from
9h00 until 16h00 on a court day. If the aforesaid 48 hours
expire–
on a day which is not
a court day or on any court day after four o’clock in the
afternoon, the said period is deemed
to expire at four o’
clock in the afternoon of the next succeeding court day;
(b) on any court day
before four o’ clock in the afternoon, the said period is
deemed to expire at four o’clock in the
afternoon of such court
day.
1
Section 50
was designed,
even before the advent of the new constitutional dispensation, to
encroach in the least restrictive manner on a
potential accused’s
right to freedom. Subsection 50(1)
(a)
is the beginning of
steps to be taken to expedite the workings of the criminal justice
system.
2
First, an arrested
person has to be brought to a police station as soon as possible
after his or her arrest. Second, that person
is required, in terms
of
s 50(1)
(b)
to be informed of his or
her right to institute bail proceedings ‘as soon as reasonably
possible’.
Section 50(1)
(c)
(ii)
requires that an arrested person be brought before a lower court ‘as
soon as reasonably possible’, but not later
than 48 hours
after the arrest. This is to ensure court oversight and to enable a
bail application to be brought.
Section 35(1) of the
Constitution gives new impetus to the expedition that has to be
brought to bear in dealing with an arrested
person. Section
35(1)
(d), (e)
and
(f)
of the Constitution reads as
follows:
‘
(1) 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;
(e)
at the first court
appearance after being arrested, to be charged or to be informed of
the reason for the detention to continue,
or to be released; and
(f)
to be released from
detention if the interest of justice permit, subject to reasonable
conditions.’
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 35 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
and Campbell
op
cit
at 299 to 300. See also the interpretation given by Eksteen
J in
Hash v Minister of Safety and Security
[2011] ZAECPEHC
para 71. The legislative purpose in extending the 48 hours, if it is
interrupted by a weekend, appears to me
to be fairly obvious. It is
because the logistics of ensuring an appearance before court over a
weekend are difficult. Put differently,
it is difficult to
co-ordinate police, prosecutorial and court administration and
activities over a weekend. This was especially
true at the time that
the legislation was introduced. It continues to be true today.
In interpreting the
section, the court below said in its judgment:
‘
[20] … Artikel 50
(1)(d)(i) bepaal dat indien die periode van 48 uur verstryk buite
gewone hofure of op ‘n dag wat
nie ‘n gewone hofdag is
nie, die beskuldigde voor ‘n laer hof gebring moet word nie
later nie as die einde van die
eerste hofdag.
[21] In hierdie geval het die 48 uur
verstryk om 16h30 op Vrydag, 20 November 2009. Na my mening beteken
die verwysing na eerste
hofdag nie ‘n hofdag na verstryking van
die 48 uur nie, maar ‘n hofdag in die eerste gedeelte van die
48 uur….
[22] Ek is dus van mening dat op ‘n
behoorlike interpretasie van artikel 50 (1)(d) van die
Strafproseswet, ‘n gearresteerde
persoon, indien die 48 uur
verstryk buite gewone hofure of op ‘n dag wat nie ‘n
gewone hofdag is nie, voor ‘n
hof gebring moet word gedurende
en nie later nie as die einde van die eerste hofdag na sy
arrestasie.’
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 in having regard to constitutional values,
he failed to take into account
s 35(1)
(d)
(ii) which,
itself, recognises that the 48 hour period may be extended if
interrupted by a weekend.
The matter could have
been decided in the court below without resorting to a strained
interpretation of s 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 could 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 hour expires
before or during the weekend.
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.
In the present matter
Prinsloo was arrested on 18 November 2009. The period of 48 hours
within which he should have been brought
before a magistrate was to
end at 16h30 on Friday, 20 November 2009, which time would be
outside the ordinary court hours
as prescribed in terms of s 50(2).
The ordinary court hours would have expired at 16h00 that afternoon.
This means that he was
only entitled to appear before court the next
court day (Monday). Whether or not Prinsloo should have been made to
wait that
long is not relevant for purposes of this appeal as he has
already been released. All that need be said is that Mashilo (and
probably many other police officers at the police force) clearly
misunderstands the provisions of s 50. His response to Kruger
that
‘he was entitled to detain the applicant for 48 hours before
he had to be brought to court for the first time’,
was
ill conceived.
That then brings me to
the issue of costs. The present appeal was brought by the NPA in
order to gain clarity on the proper interpretation
of
s 50(1)
and
(6) of the
Criminal Procedure Act. To
the extent that the
interpretation by the court below has been corrected, its appeal
succeeds. The appeal by Mashilo also succeeds
as the costs order
against him has been set aside. It would be unfair to burden
Prinsloo with the costs of an appeal, pursued
for the present
purposes. An appropriate costs order therefore would be that there
should be no order as to costs.
In the result, I make
the following order:
Leave to appeal to this
court is granted.
The appeal is upheld.
The order of the court
below relating to costs is set aside.
There is no order as to
costs.
_______________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For the Appellants: T.P.
Krüger (with L. le Roux)
Instructed by:
State Attorney, Pretoria
State Attorney,
Bloemfontein
For Respondent: L.S. de
Klerk SC
Instructed by:
Rynhart Kruger Attorneys,
Pretoria
Honey & Partners Inc,
Bloemfontein
1
Section
50(1)
(d)
and (2) of the
Criminal Procedure Act; Alfred
V
Lansdown & Jean Campbell
South African Criminal Law and
Procedure
Vol v (supra).
2
See
South African Criminal Law and Procedure
(Formerly Gardiner
and Lansdown) volume 5, Alfred V Lansdown & Jean Campbell
Cirminal Procedure and evidence
(1982) at page 261 to 262.