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[2023] ZAFSHC 267
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Minister of Police and Another v Verster (A166/2022) [2023] ZAFSHC 267 (10 July 2023)

IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. A166/2022
In
the matter between:
THE
MINISTER OF POLICE

1
st
Appellant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

2
nd
Appellant
and
BOLLYCARPUS
PETRUS VERSTER

Respondent
CORAM:
OPPERMAN,
J
et
GUSHA, AJ
HEARD
ON:
17 APRIL 2023
DELIVERED
ON
:
10 JULY 2023. The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and
release to SAFLII on 10 July 2023. The
date and time for hand-down is deemed to be 10 July 2023 at 15h00
JUDGMENT
BY:
GUSHA, AJ
JUDGMENT
INTRODUCTION
[1]
Section 12(1) of the Constitution of the Republic of South Africa,
1996 guarantees
the right to freedom of movement and security of a
person.
[1]
This is one of the
sacrosanct rights enshrined in our Bill of Rights. This right, and
indeed others, are steeped in and are hallowed
because of our
country’s past unjust and unsavory history of lack of respect
for, and the often-arbitrary deprivation of
basic human rights.
[2]
The
present case has at its heart the deprivation of the very basic right
of freedom of movement. The germane facts are that the
respondent
[2]
was arrested on the 17
th
of December 2015 on a charge of assault with intent to do grievous
bodily harm without a warrant. The arrest was executed by warrant

officer Mpata (Mpata), an employee of the 1
st
appellant.
[3]
Subsequent to the
respondent’s arrest, he appeared before the Petrusburg District
Court. The case was remanded and it was
ordered that he remain in
custody. He was then detained at Grootvlei prison pending his next
appearance. The incarceration was
ordered notwithstanding the fact
that Mpata did not oppose his release. On the 22
nd
of December 2015, pursuant to bringing an unopposed bail application,
the plaintiff was admitted to bail and released from custody.
On the
12
th
of February 2016 the charges against him and his co-accused were
withdrawn at the request of the complainant.
[3]
It is against this backdrop that the
respondent instituted action proceedings against the 1
st
and 2
nd
appellants for damages suffered as a result of his purported unlawful
arrest, detention and the purported malicious prosecution
against
him.
[4]
On
the 1
st
of September 2022 during the aforesaid proceedings, the court
a
quo
[4]
found in favour of the respondent and made the following order:
[5]
1.
First Defendant is to pay Plaintiff the sum of R15, 000.00 as for
damages.
2.
First Defendant is to pay interest on such damages, at the prescribed
rate of
interest, from date of judgment to date of payment.
3.
First Defendant and Second Defendants are to pay the Plaintiff,
jointly and severally,
the one paying the other to be absolved the
sum of R150 000.00 as for damages.
4.
First Defendant and Second Defendant’s (sic) are to pay
interest on such
damages, at the prescribed rate of interest, from
date of judgment to date of payment.
5.
First Defendant and Second Defendants are to pay Plaintiff’s
costs of suit,
by agreement to include the costs of counsel not
limited by the magistrate’s court tariff, including travelling
and preparation.
6.
Plaintiffs claim for special damages for legal fees is dismissed.
[5]
It is this decision that lies at the heart of the appeal before us.
[6]
For ease of reference, the parties shall henceforth be referred to as
they were cited
in the court
a quo
, namely as the plaintiff,
1
st
and 2
nd
defendants.
GROUNDS
OF APPEAL
[7]
The grounds for appeal as reiterated in the heads of argument for the
appellants are
that the Honourable Court erred in finding that:
20.1
The First Appellant failed to establish jurisdictional facts in order
to discharge the onus that rests upon
him in terms of Section 40(b)
of Act 51 of 1977 (hereinafter referred to as “
the CPA
”).
20.2
The First Appellant is liable (jointly and severally) for the
detention endured by the Respondent for a period
of five (5) days
pursuant to his first Court appearance.
20.3
That the Second Appellant failed to carry out its prosecutorial
functions regarding bail as a result thereof,
causing the Respondent
harm wrongfully and malicious.
20.4
The Second Appellant failed to commence and finalize the Respondent’s
release without unreasonable
delay.
20.5    In
the assessment and evaluation of evidence.
[8]
The legal position with regards to the powers of a court of appeal to
interfere with
the credibility findings of the trial court need no
restating.
[6]
[9]
Before traversing the above issues we are confronted with in this
appeal,
I pause here in order to deal with the aspect of
non-compliance with the Rules; the application for the late filing of
the notice
of appeal.
CONDONATION
[10]
The appellants noted their notice of appeal on the 11
th
of November 2022, approximately 31 days out of time.
[7]
In tandem with the notice of appeal, the appellants moved an
application for condonation of their non-compliance with the Rules.

Truncated, the reasons submitted for the non-compliance were that the
delays were not inordinate and that same was occasioned by
the
administration process related to obtaining authorization for and
appointing counsel.
[11]
It
is trite that the court has a discretion
whether
to grant condonation or not. However, equally trite, is that same
cannot be had merely for the asking. It is an indulgence
which a
court can give. A full, detailed and accurate account of the causes
for the delay and their effects must be furnished so
as to enable the
court, when exercising its discretion, to clearly understand the
reasons for the delay and to assess its responsibility.
[8]
[12]
After having heard both parties on this aspect, we exercised our
discretion in favour of the
appellants and were of the considered
view that their non-compliance notwithstanding, the interests of
justice dictate that we
condone their non-compliance.
[9]
I
would however be remiss if I do not remark that the practice of
non-compliance with the Rules is to be frowned upon.
LEGAL ISSUE TO BE
DETERMINED ON APPEAL
[13]
I now turn to deal with the issue at hand, the appeal.
[14]
During arguments the defendants conceded that the trail court did not
make any findings with
regards to malicious prosecution, that aspect
therefore need not detain us any further. Consequently, the only
issue to be determined
is whether the plaintiff’s arrest and
his continued detention was unlawful.
FINDINGS BY THE
COURT
A QUO
Unlawful arrest
[10]
[15]
I now turn to deal with the factual findings of the court
a quo
.
After evaluating the evidence, the trial court found that Mpata’s
suspicion was based exclusively on having perused the
A1 statement of
the complainant and a brief sighting of him more than a week prior to
the arrest of the plaintiff. The court further
found that Mpata
should have ascertained the nature of the complainant’s
injuries before he could form the suspicion that
the plaintiff
committed a Schedule 1 offence - assault when a dangerous wound is
inflicted. The court reasoned further that as
there was no J88 and
Mpata did not interview the complainant to satisfy himself that a
dangerous injury was inflicted, it followed
that whatever suspicion
Mpata harboured, was not based on objectively reasonable grounds.
Accordingly, the trial court found that
the defendants did not pass
muster of the jurisdictional facts as required in
section 40
of the
Criminal Procedure Act, 51 of 1977
.
Unlawful detention
post first court appearance
[11]
[16]
With regards to the defendant’s liability for unlawful
detention post the plaintiff’s
first court appearance, the
court correctly found that
once
the arrested person has been taken to court, the authority to detain,
that is inherent in the power to arrest, is exhausted.
The authority
to detain the suspect further is then within the discretion of the
court
.
Having arrived at this conclusion, the court was however alive to the
fact and correctly found that not every order by a magistrate
renders
the further detention lawful.
[12]
SUBMISSIONS BY THE
PARTIES
[17]
The parties’ submissions were comprehensively ventilated in
their respective heads of arguments
and before us, for that reason I
am loathe to overburden this judgment by repeating same herein. I
shall therefore only refer to
some salient aspects of their
respective arguments.
[18]
The 1
st
defendant conceded that at trial it bore the onus to prove that the
arrest was lawful. They submitted that Mpata satisfied all
the
jurisdictional requirements for effecting a warrantless arrest. It
was further submitted that he harboured a reasonable suspicion
that
the plaintiff committed a Schedule 1 offence. This suspicion was
based on the information contained in the police docket;
among
others, the statement of the complainant, the weapon(s) allegedly
used,
[13]
the visible injuries Mpata observed on the complainant
[14]
as well as a witness statement that at the time the complainant and
another were brought to the police station; they reeked of
petrol.
[19]
The plaintiff submitted that Mpata arrested the plaintiff based on
the contents of the A1 statement
of the complainant and a brief
sighting of the injured complainant at the Petrusburg police station
a week prior to the arrest.
Further, that at the time of the arrest
Mpata did not possess the medico - legal report,
[15]
thus there was no indication at the time that the complainant
sustained serious injuries. Thus, so their submissions went, Mpata

could not have formed a reasonable suspicion that the plaintiff
committed a Schedule 1 offence.
[20]
With regards to the plaintiff’s continued detention post -
first appearance in court, it
was submitted that the 2
nd
defendant, represented by its employee the public prosecutor, failed
in its duty of care by failing to commence and finalise the

plaintiff’s release without unreasonable delay, especially in
the face of the fact that Mpata did not oppose the plaintiff’s

release.
[21]
The plaintiff submitted that the appeal be dismissed and that a
punitive cost order on an attorney
- and - client scale be awarded.
LEGAL FRAMEWORK
[22]
Section 40
the Criminal Procedure Act, 51 of 1977 (the Act) provides
that a peace officer may effect an arrest without a warrant if there
is reasonable suspicion that a suspect has committed an offence
referred to in Schedule 1 of the Act.
[23]
It is trite that in order to prove that the arrest was lawful the 1
st
defendant had to prove the following jurisdictional facts:
(i)
The arresting officer was a peace officer;
(ii)
the arresting officer entertained a suspicion;
(iii)
that the suspect to be arrested committed an offence referred to in
schedule 1; and
(iv)
the suspicion rested on reasonable grounds.
[24]
In this appeal we need only concern ourselves with three of the
jurisdictional facts as it is
common cause that Mpata, the arresting
officer, is a peace officer.
APPLICATION
[25]
For purposes of adjudicating the vexed issue, I propose to deal with
the three jurisdictional
issues at once as I hold the considered view
that in the circumstances of this case, they are inter - connected.
[26]
In doing so, I can do no better than have regard to the decision of
the court per Musi AJA (as
he then was) in
Biyela v Minister of
Police
(1017/2020)
[2022] ZASCA 36
;
2023 (1) SACR 235
(SCA) (1
April 2022) wherein it was stated as follows:
[33]
The question whether a peace officer reasonably suspects a person of
having committed an offence within
the ambit of s 40(1)(b) is
objectively justiciable. It must, at the outset, be emphasised that
the suspicion need not be based
on information that would
subsequently be admissible in a court of law.
[34]
The standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch;
it should not be an
unparticularized suspicion. It must be based on specific and
articulable facts or information. Whether the
suspicion was
reasonable, under the prevailing circumstances, is determined
objectively.
[35]
What is required is that the arresting officer must form a reasonable
suspicion that a Schedule 1 offence
has been committed based on
credible and trustworthy information. Whether that information would
later, in a court of law, be found
to be inadmissible is neither here
nor there for the determination of whether the arresting officer at
the time of arrest harboured
a reasonable suspicion that the arrested
person committed a Schedule 1 offence.
[36]
The arresting officer is not obliged to arrest based on a reasonable
suspicion because he or she has
a discretion. The discretion to
arrest must be exercised properly. Our legal system sets great store
by the liberty of an individual
and, therefore, the discretion must
be exercised after taking all the prevailing circumstances into
consideration.
[27]
I now turn to deal with the three remaining jurisdictional facts.
Drawing from the wisdom
supra
it
is crystal that the three jurisdictional facts have not been met by
the 1
st
defendant. Mpata acted solely on information contained in the docket
as well as his brief observation of some injuries the complainant
had
when he saw the latter at the police station. I am not persuaded that
the suspicion Mpata harboured was objectively viewed
based on
reasonable grounds. I hasten to add that I am alive to the fact that
the standard of a reasonable suspicion is very low
and that in order
to establish whether a dangerous wound was inflicted, it is was not
required of Mpata to examine the wounds of
the complainant, he is
after all no medical doctor. I however hold the considered view that
under the circumstances of this case,
Mpata needed a little bit more,
for he neither interviewed the complainant nor had at his disposal a
J88, in fact the evidence
at trial was that same was never filed in
the docket.
[16]
In order to
discharge the onus and pass muster of an arrest without a warrant,
all that Mpata should have done, in addition to
the statement filed
in the docket, was to interview the complainant and obtain the J88,
that objectively viewed, would have established
the reasonableness of
the suspicion he harbored that a Schedule 1 offence was committed by
the plaintiff. The plaintiff reported
to the police station
voluntarily, apparently drove himself to the court and the
investigating officer was well aware of his whereabouts
in town. He
was not a flight risk nor a risk to the community and there was no
indication that he would evade his trial.
[28]
Having found that the arrest was unlawful I now turn to the aspect of
whether the plaintiff’s
detention post his court appearance was
lawful. It needs no restating that the deprivation of liberty through
arrest and detention,
is
per
se prima facie
unlawful.
In
cases like this, the liability of the police for detention post -
court appearance should be determined on an application of
the
principles of legal causation, having regard to the applicable tests
and policy considerations. This may include a consideration
of
whether the post - appearance detention was lawful. It is these
public policy considerations that will serve as a measure of
control
to ensure that liability is not extended too far. The conduct of the
police after an unlawful arrest, especially if the
police acted
unlawfully after the unlawful arrest of the plaintiff, is to be
evaluated and considered in determining legal causation.
In addition,
every matter must be determined on its own facts - there is no
general rule that can be applied dogmatically in order
to determine
liability.
[17]
[29]
In the present case there is a direct causal link between Mpata’s
wrongful act, the plaintiff’s
unlawful arrest, and the harm
done due to the plaintiff’s subsequent detention for a further
5 days, post his court appearance.
The fact that the plaintiff’s
detention post his court appearance was sanctioned by an order of the
learned Magistrate, cannot
and indeed should not render the further
detention lawful and thus act as a
novus
actus interveniens
.
Mpata failed in his duty, notwithstanding the fact that the plaintiff
was known to him, he did not have a J88, he did not oppose
bail, and
he fully appreciated that the plaintiff might be remanded in custody
post his first appearance in court and that notwithstanding
he did
not complete the bail information document which might have guided
the decision to formally oppose bail or not.
[18]
[30]
I now turn to deal with the liability of the 2
nd
defendant. In a well - reasoned judgment, the trial court correctly
found that in the present case there are concurrent wrongdoers:
the
Minister of Justice, the Minister of Police and the Director of
Public Prosecutions as represented by the prosecutor and that

accordingly they ought to be found to be jointly and severally liable
for the unlawful post court appearance detention of the plaintiff.

The liability of the 2
nd
defendant is to be found in the lackadaisical conduct of its
authorized delegate, Mr Mrabe, the prosecutor involved in the court

during the plaintiff’s first appearance on the 17
th
of December 2015. Despite the absence of a J88 in the docket and any
other evidence to found a charge of attempted murder, Mr Mrabe

charged the plaintiff and his co - accused with attempted murder and
requested, and was granted, a remand for a formal bail application

some 3 weeks later. Further display of this lackadaisical approach,
on the following day, despite the plaintiff being requisitioned
and
present in the court holding cells, Mr Mrabe refused to assist in
enrolling the case for a formal bail application. The aforesaid
is to
be lamented. Prosecutors, by their very duty, wield a lot of power
and play an important role in our criminal justice system
and this
confidence can only be inspired if they act in the interests of the
community, do not act arbitrarily and possess the
requisite legal
acumen.
[19]
For that reason,
they must inspire confidence in the criminal justice system. They
must act without fear, favour or prejudice.
Clearly Mr Mrabe fell
short of this standard; for had he approached his prosecutorial
duties conscientiously; the plaintiff would
not have spent 5 days
detained unlawfully.
[31]
Consequently, we are not persuaded
that the court
a quo
misdirected itself on the facts and the law. Therefore, this appeal
ought not to succeed.
COSTS
[32]
With regards to what constitutes an appropriate costs order, it is a
well - established principle
of our law that the general rule
regarding costs is that the unsuccessful party pays the costs of the
successful party on the party
and party scale. Equally established is
the principle that the court exercises a discretion when considering
an appropriate costs
order and should, of necessity, exercise same
judiciously.
[20]
We are
however not persuaded that this is a case where a punitive costs
order is warranted.
[33]
Accordingly, I make the following order:
ORDER
The appeal is dismissed
with costs.
NG
GUSHA, AJ
I
concur,
M
OPPERMAN, J
On
behalf of the Appellant
Adv.
P. Chaka
Instructed
by:
State
Attorney
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
GSJ Van Rensburg
Instructed
by:
Loubser
Van der Walt Inc
LYNWOOD
[1]
Freedom
and security of the person
12
(1) Everyone has the right to freedom and security of the person,
which includes the right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial; ...
[2]
Plaintiff
in the court
a
quo
.
[3]
1
st
Defendant in the court
a
quo
.
[4]
Petrusburg
Magistrate’s Court.
[5]
Pages
86 - 87: “Record of Appeal” (the Record).
[6]
Rex
v Dhlumayo and Another
1947
(2) SA 677
(A) at 705,
S
v Francis
1991 (1) SACR 198
(A),
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
(CCT1099)
[1999] ZACC 17.
[7]
Rule
51(3) of the Magistrate’s Court Rules provides as follows; An
appeal may be noted within 20 days after the date of
a judgment
appealed against or within 20 days after the registrar or clerk of
the court has supplied a copy of the judgment in
writing to the
party applying therefor, whichever period shall be the longer.
[8]
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292 (SCA).
[9]
Van
Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para
[20]
.
[10]
Pages
71 - 73 of the Record.
[11]
Pages
73 - 82 of the Record.
[12]
De
Klerk v Minister of Police
(CCT95/18)
[2019] ZACC 32
at para 62 the court held that “
A
remand order by a Magistrate does not necessarily render subsequent
detention lawful. What matters is whether, substantively,
there was
just cause for the later deprivation of liberty…”
[13]
A
sjambok and an iron rod.
[14]
A
bump on the head.
[15]
In
official (court and SAPS) parlance often colloquially referenced as
the “J88”.
[16]
Page
236 of the Record.
[17]
Footnote
11
supra
.
[18]
Ibid
at
pages 224 - 225.
[19]
Patel
v National Director of Public Prosecutions and
Others
(4347/2015) [2018] ZAKZDHC 17 at para 27 - 28.
[20]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and
Another
[2015]
ZACC 22
at para 85.