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[2023] ZAFSHC 421
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Lesupi v Minister of Police and Others (1896/2020) [2023] ZAFSHC 421 (19 October 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1896/2020
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
In
the matter between:
MOEKETSI
WILLIAM LESUPI
Plaintiff
and
MINISTER
OF POLICE
First
Defendant
LEFA
LETLOJANE
Second
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Third
Defendant
HEARD
ON:
19 MAY
2023
JUDGMENT
BY:
RANTHO, AJ
DELIVERED
ON:
19 OCTOBER 2023
Introduction
[1]
This matter concerns the action proceedings
instituted by the plaintiff
against
the defendants for alleged unlawful arrest and detention and
malicious prosecution.
[2]
The matter was
set-down for trial on 17, 18 and 19 January 2023, 4, 5 and 6 April
2023 and 19 May 2023.
Facts
[3]
It is of common cause
between the parties that the second defendant (“Sergeant
Letlojane”) arrested the plaintiff without
a warrant on 3 June
2018 on account of rape and murder of a woman (“the deceased”)
that took place at or near Botshabelo.
Sergeant Letlojane was also
responsible for the investigation of the case brought against the
plaintiff in this regard.
[4]
It is also common
cause that the plaintiff was taken to Botshabelo Magistrate Court for
his first court appearance on 5 June 2018
and the case against him
was postponed to 12 June 2018 in terms of section 50(6) of the
Criminal Procedure Act 51 of 1977 (“CPA”).
The plaintiff
elected not to apply for bail during the said court appearances and
was remanded in custody until his release on
warning on 24 October
2018. Following his release from detention, he appeared before the
criminal court on few occasions pursuant
to the third defendant’s
(“NPA”) decision to prosecute him for charges related to
rape and murder of the deceased.
The charges against him were
subsequently withdrawn by the NPA on 19 March 2019.
[5]
On 11 June 2020
the
plaintiff
issued
summons against the defendants on the basis of the following as
alleged in his particulars of claim:
Claim
1: Unlawful arrest and detention.
[1]
[6]
That his arrest was
unlawful and wrongful based on the fact that Sergeant Letlojane:
a.
caused his arrest and
detention without reasonable and probable cause;
b.
failed to take
reasonable steps to avoid his unlawful arrest and detention;
c.
misled the court
hearing his bail application that the case against him was strong;
d.
proceeded
investigating another suspect, despite his ‘strong belief’
that he was the perpetrator in the matter;
and
e.
failed to cause the
charges against him to be withdrawn despite having arrested the
correct suspect in 2019 and even after receiving
a confession
statement taken of the said accused (“Accused 2”).
[7]
The plaintiff alleges
to have suffered the right to his freedom and dignity, loss of
income,
contumelia
and emotional pain and suffering emanating from the alleged unlawful
arrest and claims damages in the amount of R 6 017 000.00
(SIX
MILLION AND SEVENTEEN THOUSAND RAND) as a result thereof.
Claim
2: Malicious prosecution.
[8]
The
plaintiff further alleges in his particulars of claim that the
employees of the third defendant (“the NPA”) set
the law
in motion and initiated the prosecution against him under
circumstances where, upon being released on warning on 24 October
2018, the court remarked that the case against him was so weak and
lacked prospects of successful prosecution in the trial court.
[2]
[9]
He alleges to have
suffered damages in the amount of R 5 172 000.00 (FIVE MILLION ONE
HUNDRED AND SEVENTY-TWO THOUSAND RAND) for
infringement of his
dignity, deprivation of liberty, discomfort and suffering and
contumelia
resulting
from alleged malicious prosecution.
[10]
The total amount
claimed by the plaintiff for payment of damages allegedly suffered is
R 11 189 000.00 (ELEVEN MILLION ONE HUNDRED
AND EIGHTY-NINE THOUSAND
RAND) plus interests at the rate of 10%
a
tempore
morae
and
the costs of suit.
Defendants’
plea
[11]
The
defendants had initially raised a special plea against the plaintiff
for non-compliance with section 3 of the Institution of
Legal
Proceedings Against Certain Organs of the State Act 40 0f 2002 (“Act
40 of 2002”). Pursuant to the condonation
order granted in
favour of the plaintiff by Van Zyl J on 29 August 2019, the special
plea was disposed of accordingly.
[3]
[12]
The
defendants further plead as follows in respect of claim 1:
[4]
[13]
The plaintiff’s
arrest and detention were lawful in terms of section 40(1)(b) of the
Criminal Procedure Act 51 of 1977 (“the
CPA”);
[14]
The arresting officer
was a peace officer as defined in the CPA at the time when the
plaintiff was arrested;
[15]
While the investigation officer was at the
scene of crime where the body of the deceased was discovered, he
received information
from an informer who implicated the plaintiff in
the commission of the offence(s) committed towards the deceased;
[16]
The arresting officer formed a reasonable
suspicion that the plaintiff was involved in the commission of a
Schedule 1 offence;
[17]
The plaintiff’s detention was
consequent upon his lawful arrest; and
[18]
The plaintiff’s further detention
after his first appearance on 05 June 2018 was pursuant to a court
order issued by the presiding
officer.
[19]
In
respect of Claim 2 the defendants plead that:
[5]
[20]
The law was set in motion by the police who
opened a case against the plaintiff at Boithuso Police Station
(“Boithuso”)
on charges of murder and rape;
[21]
The
first and second defendants (“the police”) were obligated
by virtue of section 205 of the Constitution
[6]
to
investigate the crime that had been committed pursuant to a complaint
that was lodged with them;
[22]
The
NPA was obligated in terms of section 179(2) of the Constitution read
with section 20 of the NPA Act
[7]
to
institute the criminal proceedings on behalf of the state and to
carry out any necessary functions and thus did not act
mala
fide
;
and
[23]
Their opposition to the plaintiff’s
application for release from custody was based on reasonable grounds
and
prima facie
evidence that was before the prosecutors at the time.
Issues
[24]
The court is required to determine as to
whether or not the arrest and detention of the plaintiff were
unlawful. It is further required
of this Court to determine as to
whether the prosecution of the plaintiff by the NPA was malicious
under the circumstances of this
case.
[25]
Should the Court find in the plaintiff’s
favour, it is required to determine if he is entitled to the amount
claimed in damages
suffered as a result of the defendants’
conducts.
[26]
At the commencement of trial proceedings,
the parties confirmed the agreement made during the pre-trial
conference held that there
should be no separation of merits and
quantum in respect of both claims.
[27]
They further agreed that, notwithstanding
the fact that the defendants bore the duty to begin in respect of
claim 1 (i.e. unlawful
arrest and detention), the plaintiff would,
for practical purposes, assume the duty to begin based on the fact
that he bore the
duty to begin in respect of claim 2 (i.e. malicious
prosecution).
Plaintiff’s
evidence
[28]
The plaintiff was the only person called to
testify in support of his case and his evidence may be summarised as
follows:
[29]
He was at a tavern called “
Diphenting
”
(“the tavern”) at W-Section in Botshabelo on the night of
02 June 2018. Under cross examination, he stated that
on 02 June 2018
he was at a tavern called ‘
The
Dance
’ with his cousin ‘
Siphelele
Helman Dlamini
’ (“Dlamini”)
and only arrived at ‘
Diphenting
’
in the early hours of the morning on which the incident occurred. He
was not in a position to call Dlamini to come and confirm
his version
because the latter worked elsewhere and not sure if he would come
even if he were issued with a subpoena. He could
not explain as to
why he did not inform the court about the said whereabouts when he
presented his evidence in chief.
[30]
He was arrested by Letlojane, who was in
the company of three other police officials on Sunday of 3 June 2018,
for rape and murder
while drinking liquor with a group of people at a
house near the tavern. He was put inside the police van (“the
van”)
in full view of about 20 people who were at or near the
tavern.
[31]
After being put in the van, Sergeant
Letlojane left him in the said vehicle to go and speak to the tavern
owner while the people
came and surrounded the van. The tavern owner
also came out of the tavern and came to the police van whereafter
Sergeant Letlojane
removed a crowd of people from the van and
informed him (the plaintiff) that he was arrested for rape and murder
before driving-off
with him to the police station.
[32]
On
arrival at the police station Sergeant Letlojane asked him if his
name was ‘
Spice
’,
to which he responded in the negative and urged Sergeant Letlojane to
go and enquire at the tavern about the whereabouts
of ‘
Spice
’.
He was not informed as to why Sergeant Letlojane was looking for the
said person (“
Spice
”).
Under cross-examination, he admitted to the fact that he indicated in
his warning statement
[8]
taken
on 04 June 2018 that he would only speak or make a statement in
court. He also admitted that he was given the opportunity
to state
his case before the police but elected not to do so because he did
not want to speak to Sergeant Letlojane.
[33]
He was detained at Boithuso Police Station
and taken to court on 05 June 2018 before being transferred to
Grootvlei prison where
he was kept in a cell with 47 other prisoners.
He appeared before the court again on 24 October 2018 for bail
application after
being in custody for 141 days. Sergeant Letlojane
opposed his bail application but same was granted by the presiding
Magistrate.
He admitted under cross-examination that he only applied
for bail on 24 October 2018 and elected not to apply when he appeared
before the court earlier out of fear for his life because the
community was very angry about the incident that had happened on 03
June 2018.
[34]
He
was referred to the statement deposed to by Tsimane Finger
[9]
(“Finger”)
on 04 June 2018 and stated that he knew Finger as a person who worked
at a tavern where he was arrested.
He testified under
cross-examination that he did not know if Finger knew him but he knew
that he (Finger) worked at a tavern he
attended on the day before the
incident took place. He also denied Finger’s statement that he
was wearing a ‘
beanie
’
on the day of the incident. He testified under re-examination that he
did not give full factual account of what is contained
in Finger’s
statement because the said statement was never read out to him
paragraph by paragraph at the time when the investigating
officer
took his warning statement.
[35]
He
was referred to the affidavit deposed to by Sergeant Letlojane
[10]
and
asked if he knew a person referred to as ‘
Ramoleane
Mokgothu
’
(“Mokgothu”
)
also
known as ‘
Mduks
’
and said he did not know him quite well but knew that Mokgothu was
sentenced for the same offences he was charged with.
He could not
remember if there was any mention of Mokgothu’s name by
Letlojane during the hearing of the bail application
on 24 October
2018. He was also referred to a confession
[11]
made
by Mokgothu on 14 February 2019 and stated that the charges against
him had not yet been withdrawn on the said date. Instead,
Mokgothu
became his co-accused in the case opened against him whereafter they
both appeared in court on 28 February and 11 March
2019 before the
withdrawal of the charges against him on 19 March 2019. He did not
know why the prosecution did not withdraw charges
against him after
Mokgothu made a confession but was of the view that the prosecution
acted in bad faith.
[36]
Under cross-examination, he was referred to
the investigation diary showing that he did not appear in court on 11
March 2019 but
said he could not remember if he was mistaken about
that. He admitted that even though Mokgothu was arrested on 13
February 2019
he (plaintiff) was only due to appear in court on 28
February 2019 as he had previously been warned during his prior court
appearance.
He could not deny that the inscription made as entry
number 5 in the docket on 14 February 2019 meant that Mokgothu’s
confession
was only filed in the docket on 14 February 2019 and thus
the prosecutor could not have known about Mokgothu’s
involvement
in the incident at the time when the decision to
prosecute him was taken. He further admitted that the prosecutor was
only in position
to present his (plaintiff’s) DNA results and
Mokgothu’s confession before the court on 28 February 2019.
[37]
He testified that his arrest affected him
badly and that following his release from custody, he went and stayed
with his uncle at
K-Section in Botshabelo because the community did
not trust him anymore. He also testified that he lost the piece-jobs
of installing
palisade fencing he had prior to the arrest and that
the situation also caused him to acquire clearance of his
fingerprints before
applying for any job in the security industry.
[38]
He testified that the incident relating to
his arrest also impacted on his family and that the members of the
public attended the
court proceedings in numbers during his
appearance. This also affected the relationship he had with his
girlfriend at the time,
whom they share a child together. Because his
girlfriend no longer trusted him, their child, who now stayed with
his mother, was
also affected.
[39]
He described the general conditions under
which he was detained as unhygienic and had to sleep on a dirty thin
sponge/mattress placed
on the floor that was full of water caused by
the leaking basin. He was served food he was not supposed to eat two
times a day
and could not wash himself from the time of his arrest
until being taken to court for his first appearance on 05 June 2018.
[40]
He admitted under cross-examination that
his freedom of movement was not interfered with after his release on
bail on 24 October
2018 until the charges were withdrawn on 19 March
2019.
[41]
He also admitted under cross-examination
that the prosecutor was not at the tavern when he was arrested and he
took the decision
to prosecute based on the information contained in
the docket. He could not dispute that at the time when the decision
was taken
to prosecute him, the prosecutor was armed with two
statements, namely, that of Finger and Sergeant Letlojane’s and
that
the NPA officials did what was required of them in terms of
their job. He testified under re-examination that his admission to
the effect that the prosecution acted reasonably when they took the
decision to prosecute him was in line with the question asked
to him
under cross-examination but not in contradiction to the evidence he
gave in examination in chief about malice in the prosecution
against
him.
Defendants’
evidence
[42]
Defendants presented the evidence of three
witnesses, namely, Sergeant Letlojane, Patrick Kenosi Koloane and
Shane Martin Lewis.
Sergeant Letlojane’s
evidence
[43]
The crux of Sergeant Letlojane’s
evidence was that:
[44]
He currently holds the rank of a Sergeant
in the employ of the South African Police Service (“SAPS”)
and was the arresting
and investigating officer in the case of rape
and murder opened against the plaintiff on 03 June 2018. He held the
rank of a Constable
and stationed at Boithuso Police Station with 13
years of service at the time when the plaintiff was arrested on 03
June 2018.
[45]
On 03 June 2018 he attended to a scene of
crime in the company of two of his colleagues at an open space near a
crèche at
W-Section in Botshabelo and met with Sergeant Modise
from the Uniform Branch of the SAPS, who pointed him to the body of
the deceased
who was half naked and lying on her back with her
clothes put alongside of her. While at the scene he was informed that
the body
found was that of a person named ‘
M[…]’
,
who lived at a place not far from the crime scene.
[46]
He visited the crime scene upon being
notified by Boithuso Police Station about a complaint that was
received
via
a telephone from a tavern-owner at W-Section in Botshabelo. The
tavern owner had received information from his employee (i.e. Finger)
about the plaintiff’s involvement in the crime(s) committed
towards the deceased. Finger got to know about the occurrence
of the
crime when he overheard people talking about it in the morning after
the incident had occurred and informed the tavern owner,
who then
phoned the police station to give information about someone who knew
about the plaintiff’s involvement in the crime.
[47]
Before the deceased body was taken away to
the mortuary, he had requested the Local Criminal Record officials
(“LRC”)
to take the pictures of the crime scene and
collect the clothes found on the scene. Among the clothes that were
seized by the LRC
was a ‘
sporty
’
or ‘
bucket-hat
’
(“the hat”) that was found a few metres from the crime
scene.
[48]
He then drove with his colleagues to the
tavern and found the plaintiff at a house near the tavern in the
company of people who
were consuming alcohol. He identified the
plaintiff after the informer, whom he said was Finger, pointed the
plaintiff out to him.
He then approached the plaintiff and identified
himself as a police official before asking him (plaintiff) to
accompany him to
the police station.
[49]
On arrival at the police station he asked
the plaintiff about his whereabouts at the time when the crime took
place and further
if he knew about the woman who was found dead in
the open space near the crèche. After having received no
answers from the
plaintiff he proceeded to inform him (plaintiff) of
the allegations against him and further read out the rights afforded
to him
under those circumstances before arresting him without a
warrant.
[50]
On 04 June 2018 he took the plaintiff’s
warning statement but the plaintiff informed him that he would only
speak about the
matter in court. The plaintiff was taken to court on
05 June 2018 but elected not to apply for bail.
[51]
He believed the information he received
from Finger was sufficient to justify the plaintiff’s arrest.
According to Finger’s
statement, he (Finger) was on duty at the
tavern when he noticed the plaintiff persistently following the
deceased around the tavern
on the night preceding the incident. At
about 3H30 on 03 June 2018 while accompanying his girlfriend, named
Nthabeleng, home he
noticed the plaintiff lying on top of someone at
a nearby open space that was about ten feet away from where they were
walking.
He was able to see the plaintiff clearly because of the
streetlights that lit brightly but could not see the person on top of
whom
the plaintiff was lying. On his return back to the tavern he
again noticed the plaintiff in the same position he was when he
walked
past them to accompany Nthabeleng home and there appeared to
be no conflict or disagreement between the persons concerned.
[52]
He testified that some hours after
arresting the plaintiff he received the information to the effect
that the hat that was found
on the crime scene belonged to a person
nicknamed “
Papa
”
or “
Spice
”
(““
Papa/Spice
”),
who had lent it to someone nicknamed “
Mduks
”.
He then went to look for “
Papa/Spice
”
and “
Mduks
”
but could not find any of them. Mokhothu (nicknamed ‘
Mduks
’)
was subsequently arrested on 13 February 2019 in connection with the
case opened against the plaintiff and became Accused
no. 2.
[53]
Although the information about the hat
being connected to Mokhothu was available to him on the afternoon of
03 June 2018, he was
still satisfied that Finger’s information
that placed the plaintiff on the scene of crime was sufficient to
warrant his (plaintiff’s)
arrest. He further testified that the
issue of the hat was still a rumour at the time when the plaintiff
was arrested and not confirmed
by any statement under oath. Under
cross-examination, the witness admitted that the issue of ‘
Spice
’
arose during the bail proceedings but said “
Spice
’
was merely sought for the purpose of verification as to who the owner
of the hat was. However, he could not provide explanation
as to why
he did not inform the court that he was also looking for “
Spice
’
in connection with the allegations faced by the plaintiff during the
plaintiff’s court appearance on 05 June 2018.
[54]
He
was referred to the statement dated 26 February 2019
[12]
deposed
to by Themba Joseph Mashibini (“Mashibini”) who had
stated that he had lent his hat to ‘
Mduks
’
(i.e. Mokhothu) during May 2018. He testified that Mashibini’s
statement was only taken in 2019 because he did not
know his
(Mashibini’s) whereabouts until being revealed by Mokhothu upon
his arrest on 13 February 2019.
[55]
He testified that he had no bad intentions
but acted on reasonable grounds formed on the basis of Finger’s
statement when
he arrested the plaintiff. He said that Mokhotu’s
confession and the DNA results linking him to the crime were not yet
available
at the time when he arrested the plaintiff. He testified
under cross-examination that the hat found on the crime scene was
taken
by the LRC with the purpose of establishing the DNA linking the
plaintiff to the crime.
[56]
According to him, there was no basis for
withdrawal of the charges against the plaintiff during his court
appearance in October
2018 as the investigation against other
possible persons connected to the crime was continuing. He was only
able to apprise the
NPA with the latest development about Mokhothu’s
involvement on 28 February 2019 and that the powers to withdraw the
charges
against the plaintiff vested with the NPA and not the police.
[57]
The
witness could not provide the explanation under cross-examination as
to why his attempts to locate ‘
Mduks’
and ‘
Papa/Spice’
were not recorded in his statement and the investigation diary dated
03 June 2018. When referred to Nthabiseng Shedile’s
(“Shedile”)
statement
[13]
taken
on 04 June 2018 at 13H43, which statement indicates that the deceased
was seen going outside the tavern with “
Papa
”
around midnight before the deceased’s body was discovered, he
denied that it was the same ‘
Papa’/’Spice
’
he went looking for but said it was another ‘
Papa
’
staying near the deceased home. He said that he only became aware
that the ‘
Papa
’
being referred to in Shedile’s statement was the same
‘
Papa’/’Spice
’
he was looking for at the time when he interviewed him in February
2019. I find the witness’s version in this regard
quite
contradictory to what he testified about in chief to the effect that
‘
Papa/Spice
’
being referred to on Mashibini’s statement was the same person
he went looking for as recorded in his investigation
diary on 26 June
2018. Nowhere else was it recorded that there were two “
Papa’s
”.
[58]
When
asked under cross-examination if Mokhothu was a suspect at the time
when the plaintiff was arrested, he denied that and said
that he was
rather ‘
a
person of interest
’.
This is contradicted by the statements of the police officials who
traced and arrested Mokhothu at Marquard in February
2019, namely,
Maimane Paulus Mohoboko and Mokone Abram Hlapisi, wherein Mokhothu is
referred to as a wanted suspect.
[14]
[59]
Counsel
for the plaintiff pointed out to Sergeant Letlojane under
cross-examination that Finger’s version in relation to the
incident was not supported by his girlfriend’s (Nthabeleng)
statement.
[15]
According
to Nthabeleng’s statement, she ‘
saw
a male person standing while the other person who was a lady was
kneeling down
’.
Sergeant Letlojane responded by saying that Nthabeleng’s
statement was only taken on 14 June 2018 after the plaintiff
had
already been arrested on 03 June 2018. When asked if he would still
have arrested the plaintiff had Nthabeleng made her statement
earlier
than 14 June 2018, he responded in the affirmative and said that he
would have still prosecuted the plaintiff on the basis
of Finger’s
statement.
[60]
The witness was also questioned at length
under cross-examination about whether the information leading to the
arrest of the plaintiff
was from Finger or the tavern owner. His
version remained that Finger was the informer from whom he obtained
the information about
the plaintiff’s involvement in the
commission of the crime committed towards the deceased. He was also
questioned at length
about what the plaintiff believed to be the
facts he should have ascertained before resorting to arrest the
plaintiff on 03 June
2018 but he kept to his version that Finger’s
statement was sufficient to form a reasonable suspicion that the
plaintiff
was involved in the commission of the crime he was accused
of.
Evidence of Patrick
Kenosi Koloane (“Mr Koloane”)
[61]
Defendants’ second witness, Mr
Koloane’s evidence was that:
[62]
He is the Regional Prosecutor in the employ
of the NPA and stationed at Botshabelo Regional Court and that he
worked at the same
court in 2018 when the plaintiff was charged with
rape and murder.
[63]
On 25 June 2018 he dealt with the docket
involving the case opened against the plaintiff and was responsible
for the decision taken
to prosecute the plaintiff on charges of rape
and murder. In the exercise of his discretion, he perused the docket
and considered
the statements of the first officer on the scene,
arresting officer as well as Finger to determine if there were
prospects of successful
prosecution against the plaintiff.
[64]
What was key to the decision taken to
prosecute the plaintiff was Finger’s statement, which indicated
that he (Finger) was
employed at the tavern and was on duty on the
night before the incident occurred. In particular, he considered
Finger’s statement
to the effect that:
[65]
He saw the plaintiff following the deceased
around on a number of occasions on the night preceding the incident;
[66]
The plaintiff was a person well known to
Finger and thus he (Finger) had ample opportunity to observe both the
plaintiff and deceased
on the night before the incident occurred;
[67]
He saw the plaintiff when he walked his
girlfriend home in the early hours of the morning on which the
incident occurred and that
there was clear visibility around the
crime scene that enabled him (Finger) to recognise the plaintiff; and
[68]
That he gave a full description of what the
plaintiff was wearing on that day.
[69]
He concluded on the basis of Finger’s
statement that there was sexual intercourse between the plaintiff and
the deceased that
had flown from the events that took place at the
tavern on the night before the incident occurred. He admitted under
cross-examination
that his conclusion in this regard was not based on
what is contained in Finger’s statement.
[70]
He was referred to Shedile’s
statement dated 04 June 2018 about having seen the deceased in the
company of ‘
Papa/Spice
’
and Sergeant Letlojane’s inscription in the investigation diary
on 26 June 2018 about looking for ‘
Papa/Spice
’
and asked if he was still satisfied that the plaintiff had to be
prosecuted. He testified in the affirmative and said that
Finger’s
statement was sufficient to inform the decision to prosecute the
plaintiff because he (Finger) was the ‘eye
witness’ who
saw the plaintiff following the deceased around the tavern on the
night before the incident and later at the
crime scene.
[71]
He
was referred to the inscription he made in the investigation diary on
12 June 2018
[16]
, wherein he
instructed the investigating officer to make further enquiries at the
tavern to establish if anyone saw the deceased
leaving with the
accused and asked if he had considered Shedile’s statement
about seeing the deceased leaving with ‘
Papa/Spice
’
and testified that he did consider the said statement. Under
cross-examination, he testified that when he made the entry
in the
investigation diary on 12 June 2018, he regarded the information
about ‘
Papa/Spice
’
as part of the on-going investigation at the time and that Shedile’s
statement about seeing the deceased leaving the
tavern with
“
Papa”/Spice
”
did not really concern him because she (Shedile) said it only took
about 20 minutes for “
Papa/Spice
”
to return back into the tavern after leaving with the deceased.
According to him, he found Finger’s version about
seeing the
plaintiff on top of someone between 24H00 and 01H00 on the day of the
incident as
prima
facie
evidence linking the plaintiff to the crime committed.
[72]
He
was not involved in the plaintiff’s bail application on 24
October 2018 but admitted to be responsible for the entry made
in the
investigation diary on 6 November 2018 wherein he stressed the
importance of the plaintiff’s DNA results being obtained
and
issued a final remand of the case to 28 February 2019.
[17]
[73]
On
28 February 2019 he was informed about the person who had made a
confession before the District Court in relation to the case
opened
against the plaintiff. He also learnt on the same day of the fact
that the plaintiff’s DNA had been obtained and filed
in the
docket on 14 February 2019.
[18]
However,
due to the serious nature of the offences involved, the plaintiff’s
DNA results were not the only thing to be considered
for the purpose
of evidence against him because there was also ‘
eye
witness
’
statement of Finger, which placed the plaintiff on the crime scene.
This required that they should still ascertain if the
plaintiff was
not involved with Mokhothu in the crime before the charges against
him could be withdrawn.
[74]
As a result of the developments that took
place on 28 February 2019, he requested that the matter be postponed
to 11 March 2019
in order to consult the investigating officer so as
to establish if Mokhothu acted alone or with the plaintiff in the
commission
of the crime. He testified that he also needed to consult
with his supervisor, Mr Lewis, who was the Acting Control Regional
Prosecutor,
on the way forward in the matter. Mr Koloane testified
under cross-examination that the consultation with the investigating
officer
did not take place as intended because he never got the
opportunity to do so.
[75]
He was responsible for taking the decision
to withdraw the charges against the plaintiff on 19 March 2019 and
explained that prior
to taking the said decision, the NPA’s
protocols required of him to complete a form authorising him to do so
and further
consult with the Regional Court Control Prosecutor and
Senior Public Prosecutor.
[76]
During the discussion he held with Mr
Lewis, they had certain concerns around Mokhothu’s confession.
That necessitated that
they further consult with the investigating
officer to discuss, among others, the concerns regarding Mokhothu’s
confession
indicating that the incident took place on 20
June 2018 instead of 3 June 2018 and
the use of the Afrikaans word ‘
bang
’
(meaning afraid) in Mokhothu’s confession to ascertain if there
was no possibility of him (Mokothu) claiming to have
been coerced
into making the said confession.
[77]
The plaintiff was not prejudiced by a
further postponement for the purpose of consultation with the
investigating officer because
he was no more in detention at the
time. Furthermore, the plaintiff was represented by an attorney at
all material times and did
not object the case being postponed to
March 2019.
Shane Martin Lewis’s
evidence (“Mr Lewis”)
[78]
Mr Lewis was the third witness to be called
by the defendants and his evidence was that:
[79]
He is employed by the NPA at its Head
Office in Bloemfontein in the capacity of the State Prosecutor.
During 2018 to 2019 he was
posted at Botshabelo Magistrate Court as
Acting Regional Control Prosecutor. His involvement in the matter was
reliant on the guidance
provided by Mr Koloane as the Regional Court
Prosecutor.
[80]
In
the course of his duties, he perused the contents of the docket
involving the plaintiff and confirmed that he made an entry in
the
docket on 28 February 2019
[19]
after
Koloane informed him that the matter had been postponed for several
times due to outstanding DNA results.
[81]
He testified under cross-examination that
the purpose of the DNA results that were stressed as important as per
Koloane’s
inscription in the investigation diary were necessary
to establish the link between the plaintiff and the rape committed as
well
as the hat that was found at the crime scene.
[82]
He became aware of the fact that Mokhothu
was to be joined as Accused 2 in the charges brought against the
plaintiff but was not
aware that the said person had already appeared
in the District Court before his involvement in the matter.
[83]
On perusal of Mokhothu’s confession
he became concerned that: the date of the offence was indicated as 20
and 3 June 2018;
Mokhothu only referred to the deceased by her first
name, M[…], which name was common in Botshabelo; that Mokhotu
denied
to have assaulted the deceased and the possibility of Mokhothu
having been coerced to make a confession. According to him, these
concerns required of him to consult with the investigating officer,
who was not available on that day, before the NPA could make
a final
decision to withdraw the charges against the plaintiff.
[84]
They had past experiences involving
multiple accused where one of the accused would confess to a crime
with the intention of vindicating
the others and thus it would have
been irresponsible of the NPA to act hastily under the circumstances
of this matter.
[85]
He explained the reason for not having
withdrawn the charges against the plaintiff earlier than 19 March
2019 was based on the contents
of Finger’s statement and thus
they needed to further consult with him (Finger) and the
investigating officer. This, he said
was necessary in order to adhere
to the NPA’s protocols which required that there should be
consultation with the parties
involved before a final decision to
withdraw the charges against the accused could be taken.
[86]
He testified under cross-examination that
reliance on Finger’s statement before withdrawing the charges
was informed by his
evidence to the effect that he (Finger) worked at
the tavern and saw the plaintiff following the deceased and later saw
the plaintiff
on top of someone when he accompanied his girlfriend
home. On that basis, Finger’s version had to be tested before
deciding
to withdraw the charges against the plaintiff. He was not
aware if the consultation with the investigation officer and Finger
did
in fact materialise.
[87]
Among the things he considered with Mr
Koloane on the final withdrawal of the charges against the plaintiff
was the fact that Botshabelo
was plagued with rape cases, which crime
was one of the highest reported and a priority for the NPA. He also
considered that if
the charges were to be withdrawn on 28 February
2019 and the need arose in future to reinstate them, it would create
difficulties
for the prosecution to re-apply for a warrant with the
possibility of the Accused becoming untraceable. He further testified
that
the State also needed to take precautions before withdrawing the
charges against the plaintiff because the community was angry about
what had happened and that mob justice was rife in Botshabelo.
[88]
On being asked under re-examination as to
whether Nthabeleng’s statement should not have prompted the NPA
not to rely on Finger’s
statement to initiate the proceedings
against the plaintiff, he testified that the said statement did not
change the NPA’s
view on the strength of Finger’s
statement. This was based on the fact that it was common for
witnesses to experience or
view the crime scene(s) differently.
Evaluation of
merits
[89]
The defendants’ justification for the
plaintiff’s arrest is reliant on the provisions of section
40(1) of the CPA in
terms of which a peace officer may without a
warrant arrest any person –
“…
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody.”
[90]
The jurisdictional facts to be proved for a
defence based on section 40(1)(b) 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 committed an offence referred to in Schedule 1; and
(iv)
the suspicion must be based on
reasonable grounds.
[91]
Once
the jurisdictional requirements for an arrest have been met, the
arresting officer is faced with the discretion as to whether
or not
to arrest a person suspected of having committed a Schedule 1
offence. That arresting officer’s discretion must
be
exercised in good faith, rationally and not arbitrarily.
[20]
Did
the arresting officer form a reasonable suspicion
?
[92]
In evaluating the question as to whether
the plaintiff’s arrest by Sergeant Letlojane was lawful, the
Court is required to
assess if he (Sergeant Letlojane) had a
reasonable suspicion that the plaintiff committed the alleged offence
as contemplated in
section 40(1)(b) of the CPA.
[93]
In justifying his actions, Sergeant
Letlojane’s evidence was that he arrested the plaintiff on the
strength of the information
he received from an informer, whom he
said was Finger, which information implicated the plaintiff in the
commission of the crime.
On his version, Finger’s statement was
sufficient to form a reasonable suspicion that an offence
contemplated in Schedule
1 of the CPA had been committed.
[94]
Counsel
for the plaintiff challenged the truthfulness of Letlojane’s
evidence and submitted that he (Letlojane) acted on the
basis of the
information obtained from the ‘tavern-owner’ even before
Finger’s statement was taken.
[21]
He
based his argument on the evidence tendered by the plaintiff to the
effect that, on the morning of his arrest he saw Letlojane
going to
see the ‘tavern-owner’ before arresting him. He also
directed a challenge at Letlojane’s testimony that
he received
information from Boithuso Police Station as conveyed to the police by
the ‘tavern-owner’ and submitted
that such pointed to the
fact that the informer being referred to in Sergeant Letlojane’s
statement was the ‘tavern-owner’
and not Finger as
claimed by Sergeant Letlojane.
[95]
The plaintiff further submitted that by
virtue of the informer’s identify not being disclosed in
Sergeant Letlojane’s
statement and the latter’s failure
to provide a reasonable explanation under cross examination as to why
Finger was not mentioned
in his statement, the Court should find that
the plaintiff was arrested on the basis of the information received
from an informer,
which information Sergeant Letlojane failed to
subject to objective verification before arresting the plaintiff. In
his view,
the information from an informer could not arouse a
reasonable suspicion contemplated in section 40(1)(b) of the CPA.
[96]
I do not agree with the plaintiff’s
submission that there are sufficient grounds to conclude that the
informer being referred
to in Sergeant Letlojane’s statement
was the ‘tavern-owner’ and not Finger as testified by
Sergeant Letlojane.
This is so when regard is to the following as
recorded in Finger’s statement:
“…
I
went back to the tavern while I was at the tavern around 7:00 to 8:00
I heard people saying that M[…] was found dead behind
a Creche
at W Section Botshabelo. I then remembered that I saw Moeketsi there
lying on top of another person that I could not see.
9.
…
Around
9:00 to 10:00 Moeketsi arrived. When he arrived he was wearing a jean
top (sync) inside was wearing a red top. At knight
(sync) when I saw
him he was wearing a brown top with the red top inside and on the
head he was wearing a dark coloured beanie.
10.
I
then alerted the tavern owner who called the police. After that
police arrived and took Moeketsi
…”
[97]
The reading of Finger’s statement
points to the fact that he was the one who alerted the tavern owner
about the plaintiff’s
involvement in the crime and further that
he was present at the tavern at the time when Sergeant Letlojane came
to arrest the plaintiff.
In my view, the fact that the informer’s
identity is not disclosed in Sergeant Letlojane’s statement is
insufficient
for one to conclude that the person referred to in the
said statement was the ‘tavern-owner’. The plaintiff’s
oral testimony about seeing Letlojane approaching the tavern owner
before he was arrested is not corroborated by any evidence.
On
objective facts presented before me, it can be accepted that Finger
was present at the tavern when the plaintiff was arrested.
I
therefore find that Letlojane’s evidence that Finger was the
person who pointed out the plaintiff to him is probable.
[98]
The plaintiff further argued that even if
the Court was to accept that Sergeant Letlojane acted on the basis of
Finger’s information,
the said information was wholly
inadequate to engender a reasonable suspicion in the mind of the
arresting officer that the plaintiff
had committed the offence he was
accused of. He also highlighted the following aspects that he
submitted were deficient of Finger’s
statement and thus should
have prompted Sergeant Letlojane to act with caution:
[99]
First, the photographs taken of the scene
showing the deceased lying where there was a lot of grass
contradicted the allegation
that Finger saw the plaintiff at an open
space. In his view, this should have raised concerns to any
reasonable police officer
about the reliability of Finger’s
observations given the fact that he was a single witness at the time.
[100]
Second, the fact that Sergeant Letlojane
received information about the hat belonging to ‘
Papa/Spice
’
whilst at the crime scene but made no attempts to follow up on the
said information before arresting the plaintiff. Furthermore,
the
plaintiff confirmed in his testimony that on arrival at the police
station on the day of the arrest Sergeant Letlojane asked
him if his
name was ‘
Spice
’
.
[101]
Third,
the statement of Shedile pointed to another person who was seen with
the deceased on the night preceding the day on which
the deceased’s
body was discovered. The plaintiff argues that although Shedile’s
statement was deposed to on 4 June
2018, the investigation diary
indicates that she was interviewed on 03 June 2018. In his view, the
arresting officer was not obliged
without more, to merely accept the
‘
say-so
’
evidence but rather, it was also required of the said officer to
evaluate the information provided to him by a witness or
an informant
critically.
[22]
[102]
The SCA in
Sekhoto
(
supra
)
explained that:
“
[39]
…
The
standard is not breached because an officer exercises the discretion
in a manner other than that deemed optimal by the court.
A
number of choices may be open to him, all of which may fall within
the range of rationality. The standard is not perfection,
or
even the optimum, judged from the vantage of hindsight and so long as
the discretion is exercised within this range, the standard
is not
breached
.”
[103]
Therefore, to expect of Sergeant Letlojane
to have interviewed numerous people who were present at the tavern
the night before the
incident occurred and/or conducted more
investigation before arresting the plaintiff would be stretching the
jurisdictional requirements
for a lawful arrest way too far.
[104]
The plaintiff also raised an issue with
Sergeant Letlojane’s failure to interview Finger’s
girlfriend (Nthabeleng) before
arresting the plaintiff. In my view,
whether or not Nthabeleng’s statement was taken before the
plaintiff was arrested does
not take away the crucial aspects of
Finger’s statement to the effect that, he saw the plaintiff
following the deceased around
the tavern on the night before the
incident happened, he was able to see the plaintiff clearly because
of the brightness occasioned
by the streetlights and the
identification of the clothes worn by the plaintiff.
[105]
The
reasonableness of the suspicion of any arresting officer must be
approached objectively, with the question being whether a reasonable
person, confronted with the same set of facts, would form a suspicion
that a person has committed a Schedule 1 offence.
[23]
This
means that, even if there was insufficient evidence for a
prima
facie
against the arrestee, it may still be found that the arresting
officer entertained a reasonable suspicion that an offence set out
in
Schedule 1 has been committed.
[24]
[106]
In explaining what is required of an
arresting officer faced with having to exercise the discretion on the
basis of a reasonable
suspicion, the court in
Mabona
v Minister of Law & Order
1988 (2) SA 654
(SE) at 658 G-H
held that:
“
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
”
.
[107]
It
is trite that a party challenging the discretion exercised by the
arresting officer must show that such discretion was exercised
unreasonably. This stems from the general rule that
a
party who attacks the exercise of discretion where the jurisdictional
facts are present bears the onus of proof.
[25]
The
effect of the location of the onus is that the issue of the improper
exercise of the arresting officer’s discretion will
only arise
when it has been pertinently pleaded.
[26]
[108]
Relying
on
Hefer JA’s reasoning in
Minister
of Law and Order v Dempsey
[27]
,
the SCA as per Harmse DP in
Sekhoto
said that:
‘
Once
the jurisdictional fact is proved by showing that the functionary in
fact formed the required opinion, the arrest is brought
within the
ambit of the enabling legislation, and is thus justified. And if it
is alleged that the opinion was
improperly
formed,
it is for the party who makes the allegation to prove it. There are
in such a case two separate and distinct issues, each
having its
own
onus
(Pillay
v Krishna and Another
1946
A D 946
at p 953). The first is whether the opinion was
actually
formed;
the second, which only arises if the
onus
on
the first has been discharged or if it is admitted that the opinion
was actually formed, is whether it was
properly
formed
.’
[109]
The
SCA in
Sekhoto
went on to say that:
“
[50]...It
cannot be expected of a defendant, he said, to deal effectively in a
plea or in evidence with unsubstantiated averments
of mala
fides and the like, without the specific facts on which they are
based, being stated. So much the more can it
not be expected of a
defendant to deal effectively with a claim (as in this case) in
which no averment is made, save
a general one that the
arrest was ‘unreasonable’. Were it otherwise, the
defendant would in effect be compelled to
cover the whole field of
every conceivable ground for review, in the knowledge that, should he
fail to do so, a finding that the onushas
not been discharged,
may ensue. Such a state of affairs, said Hefer JA, is quite
untenable
.
[110]
As correctly pointed out by the defendants’
attorney, the challenge mounted on Sergeant Letlojane’s
exercise of discretion
in arresting the plaintiff was not pertinently
pleaded in the particulars of claim but rather raised in argument. I
therefore find
that Sergeant Letlojane’s reasoning of how he
arrived at the decision to arrest the plaintiff cannot be faulted and
thus
the plaintiff’s claim 1 based on unlawful arrest and
detention should fail.
Malicious
prosecution
[111]
In
order to succeed with a claim based on malicious prosecution, the
claimant must allege and prove that:
[28]
(i)
the defendants instigated and
instituted the proceedings against her/him;
(ii)
that the defendants acted
without reasonable and probable cause;
(iii)
that the defendants with
malice or
animo iniuriandi;
and
(iv)
that the prosecution has failed.
[112]
It is common cause that the NPA initiated
the prosecution against the plaintiff and that same had failed based
on the withdrawal
of the charges that were levelled against him by
the NPA on 19 March 2019.
[113]
What
then remains to be determined is whether the NPA initiated the
prosecution against the plaintiff without reasonable and probable
cause and with malice or
animo
iniuriandi
.
The reasonable and probable cause in the context of a claim for
malicious prosecution was explained in
Minister
of Justice and Constitutional Development and Others v Moleko
[29]
as:
“…
an
honest belief founded on reasonable grounds that the institution of
proceedings is justified. The concept therefore involves
both
subjective and an objective element –
‘
Not
only must the defendant have subjectively had an honest belief in the
guilt of the plaintiff, but his belief and conduct must
have been
objectively reasonable, as would have been exercised by a person
using ordinary care and prudence
.’
[114]
As
the SCA puts it in
Minister
of Police and another v Du Plessis
[30]
:
“
[34]
The Prosecutor’s function is not merely to have a matter placed
on the roll, to then simply be postponed for further
investigation. A
Prosecutor must pay attention to the contents of the docket… a
Prosecutor must act with objectivity and
must protect public
interest
.”
[115]
Mr Koloane’s evidence before this
Court was that his decision to initiate the prosecution against the
plaintiff was influenced
mainly by the contents of Finger’s
statement. In particular, he considered the fact that Finger stated
that there was clear
visibility when he saw the plaintiff at the
crime scene in the early hours of the day of the incident, that the
plaintiff was well
known to him and that he noticed the plaintiff
following the deceased around the tavern on the night preceding the
incident and
the fact that he provided a full description of the
clothes worn by the plaintiff at the tavern and at the crime scene.
[116]
The plaintiff submitted that the NPA’s
decision to prosecute the plaintiff was unreasonable in the extreme
from the onset.
He based his argument on the fact that the statement
of Finger, which was key to influencing Mr Koloane’s decision
to prosecute
the plaintiff, could not be relied upon because,
firstly, Finger did not see the person the plaintiff was allegedly
lying on top
of, and secondly, it appeared to Finger that there were
no disagreements between the persons he saw at an open space.
[117]
He
further submitted that the NPA acted without reasonable and probable
cause and with malice against the plaintiff for relying
on Finger’s
statement until the case became withdrawn on 19 March 2019 and argued
that the NPA’s prosecution of the
plaintiff was deficient when
regard is to the following:
[31]
[118]
Shedile’s statement indicating the
fact that she saw the deceased leaving the tavern with ‘
Papa’/’Spice
’
in the night preceding the incident;
[119]
Mabote’s statement that contradicted
Finger with regard to the manner in which the two persons seen at an
open space were
positioned as well as the clothes worn by a male
person while in Finger’s company in the early hours of the day
of the incident;
[120]
A photo album depicting the crime scene
being full of grass whereas Finger said there was clear visibility;
[121]
The DNA results that excluded the plaintiff
from being a possible suspect; and
[122]
Mokhotu’s confession to having raped
and murdered the deceased.
[123]
In the plaintiff’s view, the NPA
should have reconsidered its stance towards the plaintiff’s
case based on the events
that ensued after Finger had made his
statement. I do not agree with the plaintiff’s submission in
this regard on two-fold:
firstly, on objective facts, it can be
accepted that the developments deemed deficient of the NPA’s
case by the plaintiff
occurred after the decision to initiate the
prosecution against the plaintiff had been taken as testified by Mr
Koloane; and secondly,
Mr Koloane’s testimony was that,
notwithstanding the developments in the investigation following the
plaintiff appearance
in court on 5 June 2018, he was still satisfied
that the plaintiff was linked to the crime and that there was also a
possibility
that there could be other persons involved. He also
explained that his reasons for not relying on Shedile’s
statement about
having seen the deceased going out of the tavern with
‘
Papa’/’Spice
’
was because the time taken by ‘
Papa’/’Spice
’
to return back to the tavern as explained by Shedile was only twenty
minutes, which period he regarded as short to have
had enabled the
commission of the crime of that nature.
[124]
The plaintiff further raised an issue with
Mr Koloane’s entry made in the docket on 06 November 2018
wherein he stressed the
importance of obtaining the plaintiff’s
DNA to the investigating officer. He argued that although Mr Koloane
was reluctant
to accept under cross-examination that the plaintiff’s
DNA was sought for the purpose of linking him with the deceased, his
colleague, Lewis accepted to that effect.
[125]
What the plaintiff seemed to have
overlooked, however, is the evidence given by both Sergeant Letlojane
and Mr Koloane to the effect
that the plaintiff remained a suspect to
the crime even after the evidence pointing to the possibility of
other suspects such as
“
Papa/Spice
’
and “
Mduks
”
was obtained. One would have reasonably expected that the
investigation into the plaintiff’s involvement in the crimes
he
was accused of did not end when the decision to prosecute him was
taken, but that it continued until the NPA was satisfied that
there
was no evidence linking him to the crime. The reasonableness of the
length of the time taken and the methodology adopted
by the NPA in
arriving at the decision to withdraw the charges against the
plaintiff should be assessed objectively on the basis
of the facts
confronting the NPA at the time.
[126]
The
defendants challenged the issue raised by the plaintiff in relation
to the photo album depicting the scene of crime as full
of grass and
submitted that there were no facts presented to the Court to
supported the plaintiff’s argument.
[32]
I
agree with the defendants’ submission in this regard because in
any event, the quality of the photographs being referred
to by the
plaintiff were of poor quality and the Court did not have the benefit
of the evidence of the compiler of the photo album
in the first
place.
[127]
Having considered the relevant principles
outlined above and the facts as presented before this Court, I find
that the plaintiff
did not succeed in discharging the onus that
rested on him to show that the NPA’s prosecution against him
was malicious.
Costs
[128]
The general rule is that the costs should
follow the result, being the successful litigant. I find no reason to
deviate from this
general rule in the circumstances of this matter.
ORDER
[129]
In the result, I make the following order:
1.
The plaintiff’s claim 1 based on
unlawful arrest and detention is dismissed with costs.
2.
The plaintiff’s claim 2 based on
malicious prosecution is dismissed with costs.
M.R.
RANTHO, AJ
APPEARANCES:
On
behalf of plaintiff:
Adv.
M.S. Mazibuko
Instructed
by:
Mazibuko
& Wesi Inc, Bloemfontein
On
behalf of defendants:
Mr
G.P. Chauke
Instructed
by:
State
Attorney Bloemfontein.
[1]
Index:
Pleadings: pp 8- 9 at
para
12 - 12.5 of particulars of claim.
[2]
Index:
Pleadings p 11 at
para
19.
[3]
Index:
Pleadings p 25 - 26.
[4]
Index
Pleadings pp 25 – 27 at
paras
5 - 11.
[5]
Index
Pleadings pp 29 - 30:
paras
14 - 15.
[6]
Act
of 1996.
[7]
Act
of 32 of 1998.
[8]
Index:
Trial Bundle p 17.
[9]
Index:
Trial Bundle p 11.
[10]
Index:
Trial Bundle p 67.
[11]
Index:
Consolidated Discovery Bundle pp 136 - 139.
[12]
Index:
Consolidated Discovery Bundle p 7.
[13]
Index:
Trial Bundle p 14.
[14]
Index:
Consolidated Discovery Bundle pp 17 – 21.
[15]
Index:
Trial Bundle p 25.
[16]
Index:
Trial Bundle p 102.
[17]
Index:
Trial Bundle p 107.
[18]
Index:
Trial Bundle p 108.
[19]
Index:
Trial Bundle
p
109.
[20]
Minister
of Safety and Security v Sekhoto
2011 (5) SA 367
(SCA) at para 38.
[21]
Plaintiff’s
heads of argument at paras 31 – 38.
[22]
Plaintiff’s
heads of argument at para 59.
[23]
Duncan
v Minister of Law and Order
1984 (3) SA 460
(T) at 465-6; Minister
of Police v
Dunjana
and others [2022] ZAECMKHC 88;
[2023] All SA 180
(ECG) at para 16.
[24]
Mvu
v Minister of Safety and Security and Another
2019 (2) SACR 291
(GJS) at para 9.
[25]
See
Sekhoto
at para 49.
[26]
See
footnote 24 (
supra
)
at
para 13.
[27]
1988
(3) SA 19
(A) at 37B – 39F.
[28]
Minister
of Justice and Constitutional Development v Moleko
2008 (3) All SA
47
at para 8.
[29]
Ibid
at para 20.
[30]
[2013]
ZACSA 119; 2014 (1) SACR 217 (SCA).
[31]
Plaintiff’s
heads of argument at paras 87 – 87.5.
[32]
Defendants’
heads of argument at para 4.7.2.