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[2012] ZASCA 189
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Minister of Safety and Security and Others v Ndlovu (788/11) [2012] ZASCA 189; 2013 (1) SACR 339 (SCA) (30 November 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 788/11
Reportable
In the matter between:
MINISTER OF SAFETY AND SECURITY
.......................................
FIRST APPELLANT
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.........................................................................
SECOND
APPELLANT
and
NEVER NDLOVU
....................................................................................
RESPONDENT
Neutral citation:
Minister
of Safety & Security v N Ndlovu
(788/11)
[2012] ZASCA 189
(30
November 2012).
Coram:
Ponnan, Bosielo and
Petse JJA
Heard:
7 November 2012
Delivered: 30 November 2012
Summary: Claim for damages for
unlawful detention following upon unlawful arrest ─
unlawfulness not ceasing when accused is
brought before a reception
court which remands him in custody without enquiring whether it is in
the interests of justice to detain
him further.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Eastern Cape
High Court, Grahamstown (Mageza AJ sitting as court of first
instance):
1 The appeal is dismissed with costs,
including the costs of two counsel to be paid jointly and severally
by the appellants, the
one paying the other to be absolved.
2 The following order is substituted
for the order of the court below:
‘
(1) Judgment
is entered in favour of the plaintiff:
(a) against the first defendant for:
(i) payment of the sum of R55 000;
(ii) interest at the prescribed legal
rate
a tempore morae;
(iii) costs.
(b) against the first and second
defendants jointly and severally, the one paying the other to be
absolved, for:
(i) payment of the sum of R175 000;
(ii) interest at the prescribed legal
rate
a tempore morae;
(iii) costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
PETSE JA (Ponnan and Bosielo JJA
concurring):
[1] This appeal concerns the issue
whether or not the further detention of the respondent, Mr Never
Ndlovu, for the period from
24 October to 31 October 2008 to await
his trial on a charge of possession of suspected stolen property was
unlawful. The Eastern
Cape High Court, Grahamstown (Mageza AJ) held
that it was and accordingly awarded the respondent damages. It
subsequently granted
the appellants leave to appeal against its
judgment and order to this court. I shall say more about the terms of
the order later.
[2] The determination of the issue
arising in this appeal will best be understood against the backdrop
of the facts that follow.
[3] On 21 October 2008, late in the
afternoon, the respondent, a Zimbabwean national, received a
telephone call from an acquaintance
known as Golden, requesting him
to meet the latter in the street in Joza Township, Grahamstown, where
the respondent lived at the
time. Golden also requested the
respondent to bring with him a laptop that he had earlier that day
handed to the respondent for
the purposes of the latter to install a
Windows Software Program.
[4] The respondent obliged, but
unbeknown to him Golden was accompanied by eight police officers,
under the command of Warrant Officer
Van Ross, who were investigating
a case concerning the theft of the laptop in question from the
premises of Westbank in Grahamstown.
The police officers, after a
brief questioning of the respondent, seized the laptop and asked the
respondent to lead them to his
residence, which he did. There, four
police officers conducted a search of the premises without a search
warrant. They seized an
assortment of the respondent’s property
comprising, inter alia, computers, a television set, Tech DVD player,
a LG flatron
screen and miscellaneous computer accessories.
[5] The respondent was arrested and
detained for being in possession of what the police said was
suspected stolen property in contravention
of s 36 of the General Law
Amendment Act 62 of 1955. On 23 October 2008 he was brought before a
so-called ‘reception court’
─ about which more
shall be said later ─ and remanded in custody to 30 October
2008 because a so-called ‘Bail
Information Form’,
completed by the police and contained in the police docket, reflected
that the respondent had furnished
a false address and consequently
had no fixed address. For this reason, according to the police, the
respondent was not to be released
on bail. On 30 October 2008,
the respondent was granted bail of R500 which was paid on his behalf
the following day. His case
was postponed yet again. On 9 December
2008 charges against the respondent were withdrawn and on 10 December
2008 his property,
seized by the police, on the date of arrest, was
released to him.
[6] On 21 April 2010 the respondent
instituted proceedings against the appellants, the Minister of Safety
and Security, as the first
defendant and the Minister for Justice and
Constitutional Development, as the second defendant in the high court
for unlawful arrest
and detention from 21 to 31 October 2008.
[7] The matter proceeded to trial
before Mageza AJ. During the appellants’ case it was conceded
on behalf of the first appellant
that the arrest of the respondent on
21 October 2008 and his subsequent detention until 23 October
2008, when he was brought
before the ‘reception court’,
were unlawful. But the appellants persisted in their defence that the
respondent’s
unlawful detention ceased when the magistrate in
the ‘reception court’ remanded the respondent in custody
to 30 October
2008 for a bail application and legal aid. This
appeal is thus only concerned with the lawfulness of his further
detention from
24 to 31 October 2008. The case of the appellants
was that from the time the magistrate issued the detention order the
unlawful
detention ceased.
[8] The high court found in favour of
the respondent and granted judgment as follows:
‘
1.
Judgment is entered in favour of Plaintiff:
(a)
in respect of the unlawful arrest, attendant
contumelia
and detention between
the evening of the 21
st
to the morning of the 23
rd
October 2008, damages in the
amount of R55 000.00.
(b)
in respect of the unlawful detention in prison between the 24
th
October to 31
st
October
2008 for the sum of R175 000.00.
(c)
The defendants are ordered, jointly and severally, to pay interest on
the damages awarded in (a) and (b) above at the legal
rate from a
date fourteen days after date of this judgment to date of final
payment.
(d)
Costs of suit together with interest calculated at the legal rate
from a date fourteen days after the
allocator
to the date of payment.’
[9] On the pleadings, the arrest and
subsequent detention of the respondent were common cause. It was also
not in dispute that the
respondent was arrested at Extension 4,
Grahamstown where he was found in possession of the goods seized by
the police on suspicion
that they had been stolen. At a subsequent
pre-trial conference, held on 7 April 2011 in terms of rule 37(1) of
the Uniform Rules,
the appellants correctly accepted that they bore
the onus to establish that the respondent’s arrest and
detention were legally
justified (see
Minister of Law & Order
& others v Hurley & another
1986 (3) SA 568
(A).
[10] In
Zealand
v Minister for Justice and Constitutional Development & another
[2008] ZACC 3
;
2008 (6) BCLR 601
(CC) the
Constitutional Court in affirming this principle said:
‘
It
has long been firmly established in our common-law that every
interference with physical liberty is
prima
facie
unlawful.
Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference
to establish a ground of justification.
.
. .
There
can be no doubt that this reasoning applies with equal, if not
greater, force under the Constitution.’
1
[11] Of the witnesses who testified at
the trial only the evidence of Captain Green, who was, at the
material time, the Sector Commander
of the Detective Branch,
Grahamstown and Mr Lionel Prince, the prosecutor who appeared for the
State in the ‘reception court’
on 23 October 2008,
is material. Captain Green testified that, as Sector Commander, he
had eighteen investigating officers
under him. When he received
police dockets he would peruse them and allocate them to designated
investigating officers. When he
received the docket relating to the
respondent, he observed that it contained no identity or passport
number and that a visit by
an officer to the address furnished by the
respondent had established that the respondent was unknown and that
this triggered what
he called ‘red lights’ because the
respondent was a Zimbabwean national. Contained in the docket was a
document titled
‘Bail Information Form’, which had been
completed by Constable Buthi. This ‘Bail Information Form’
was
intended to assist the prosecutor at the respondent’s first
appearance at court. The prosecutor was expected to evaluate the
information contained in that form and then decide whether to consent
or object to bail. The form recorded that the appellant be
refused
bail because he was considered a flight risk.
[12] Prince testified that he did not
study the docket but merely perused the ‘Bail Information
Form’. He said it was
the responsibility of the control
prosecutor, Ms Msesiwe, to study the docket, draw a charge-sheet and
thereafter give it to the
prosecutor in the ‘reception court’.
He, upon receiving the docket, only read the ‘Bail Information
Form’
and realised that bail was to be opposed. He then called
the respondent’s case before a magistrate in the ‘reception
court’ and applied for the case to be remanded. All of this he
did without reference to the respondent. Without further ado
the
magistrate postponed the case for seven days.
[13] It is opportune to say something
about the so-called ‘reception court’, which has since
ceased to exist. This is
a ‘court’ which at that time was
solely dedicated to dealing with accused persons at their first
appearance in court.
All cases before it were postponed as a matter
of course and as a rule it never entertained any bail applications.
Neither did
it embark on a judicial evaluation to determine whether
it was in the interests of justice to grant bail nor, in this case,
did
it afford the respondent an opportunity to address it on the
question of his eligibility to be released on bail.
[14] Msesiwe, who was said to have
perused the docket to make a determination as to whether the
respondent should be released (whether
on bail or warning) or
detained further, did not testify. Nor did Constable Buthi. The
evidence does reveal that the arresting
officers had been to the
respondent’s residence where they conducted a search and seized
some of the respondent’s goods
at the time of his arrest.
Accordingly there could have been no doubt about the respondent’s
residential address. It is thus
inexplicable why Buthi would have
suggested that the respondent had no fixed abode and as a consequence
that he posed a flight
risk. Buthi was a crucial witness. Indeed that
seemed to have been accepted by Green when he testified.
[15] The case of the appellants thus
suffers fundamentally from evidentiary short-comings. First, Prince
who applied for the postponement
of the respondent’s case on 23
October 2008 did not, on a fair assessment of his evidence, read the
contents of the docket.
He solely relied on the police entry in the
‘Bail Information Form’ that the respondent should not be
granted bail.
Msesiwe, who was said to have read the docket was not
called. Indeed Prince conceded under cross-examination that anyone
properly
applying their mind to the matter at hand would have
realised that the respondent was not a flight risk. Nor was Buthi
called,
who was said to be the source of the entry in the ‘Bail
Information Form’ that the respondent had furnished a false
address. The inevitable consequence of these evidentiary
short-comings is that the evidence of the appellants, who bore the
onus
to justify the deprivation of the respondent’s liberty,
came nowhere near discharging that onus. Quite clearly had the police
conscientiously performed their duties, given that the respondent’s
freedom was at stake, they would have realised that the
respondent
had a fixed address and was thus not a flight risk. Moreover the
appellants’ problems are also compounded by the
fact that the
respondent was granted bail on his second appearance before court
even though his circumstances had not changed.
[16] In
Minister of Law and Order v
Kader
1991 (1) SA 41
(A) at 51A-C this court held:
‘
.
. . I consider, that when s 50(1) speaks of further detention for the
purposes of trial being ordered by the court “upon
a charge of
any offence”, this does not contemplate that the matter would
be ready for trial at the first appearance of the
arrested person, or
that a properly formulated charge must then be preferred against him
. . . All that the section contemplates
is that the purpose of the
detention throughout must be to secure the attendance of the accused
at his trial upon the charge, which,
it is expected, will be
preferred against him. It goes without saying that
it
is the function of the judicial officer to guard against the accused
being detained on insubstantial or improper grounds
and,
in any event, to ensure that his detention is not unduly extended.’
(My emphasis.)
In this case it is common cause that
the ‘reception court’ never embarked on any judicial
evaluation because, as a matter
of course, its function was merely to
postpone cases and without, it would seem, enquiring whether or not
an accused person ought
to be detained pending a trial. It can thus
hardly be contended that the unlawful detention of the respondent
ceased when he was
brought before the ‘reception court’
which ordered his further detention. It follows that this appeal must
fail.
[17] It remains to deal with one final
aspect. It was common cause before us that the order of the high
court has to be corrected.
Judgment was entered in favour of the
respondent for his unlawful:
(a) arrest and detention for the
period 21 to 23 October 2008 in the sum of R55 000; and
(b) detention for the period 24 to 31
October 2008 in the sum of R175 000.
Although the order does not make it
plain, in respect of (a), judgment could only have been entered
against the first appellant.
That would also hold true in respect of
the interest and costs that flow from that award. And in respect of
(b), judgment, interest
and costs ought to have been entered against
the appellants jointly and severally. It is thus necessary that the
order be amended
to reflect that. To avoid further confusion it may
simply be more convenient to set aside the order in its entirety and
replace
it with the correct order. Save for correcting the order, the
appeal must otherwise be dismissed with costs including the costs
of
two counsel, it being agreed between the parties that the employment
of two counsel was justified.
[18] The following order is made:
1 The appeal is dismissed with costs,
including the costs of two counsel to be paid jointly and severally
by the appellants, the
one paying the other to be absolved.
2 The following order is substituted
for the order of the court below:
‘
(1) Judgment
is entered in favour of the plaintiff:
(a) against the first defendant for:
(i) payment of the sum of R55 000;
(ii) interest at the prescribed legal
rate
a tempore morae;
(iii) costs.
(b) against the first and second
defendants jointly and severally, the one paying the other to be
absolved, for:
(i) payment of the sum of R175 000;
(ii) interest at the prescribed legal
rate
a tempore morae;
(iii) costs.’
_________________
X M PETSE
JUDGE OF APPEAL
Appearances:
Appellants: M J Louw SC
N J Sandi
Instructed by:
Nkuhlu Khondo Incorporated,
Grahamstown
The State Attorney, Bloemfontein
Respondent: A Beyleveld SC
D Niekerk
Instructed by:
Whitesides, Grahamstown
Naudes Attorneys, Bloemfontein
1
At
para 25.