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2023
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[2023] ZAFSHC 505
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Makaota v Minister of Police and Another (747/2021) [2023] ZAFSHC 505 (18 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
747/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MORWENYANE
JAN MAKAOTA
and
MINISTER
OF POLICE
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
PLAINTIFF
1
st
DEFENDANT
2
nd
DEFENDANT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
4
SEPTEMBER 2023
DELIVERED
ON:
18 DECEMBER 2023
[1]
The Plaintiff instituted a delictual claim
against the Defendants for damages for unlawful detention following
the successful opposition
against his admission on bail by the
Defendants. The essence of the Plaintiff’s case is that the
investigating officer testified
that the State had a strong case
against the Plaintiff and the necessary eye witnesses who were
willing to testify, and these assertions,
which according to the
Plaintiff were untrue, led to his refusal for his admission on bail.
[2]
The facts of this case are largely common cause as set out in this
paragraph.
In the early hours of 8 September 2019, the Plaintiff and
the complainant were at the stadium where an entertainment event was
held. The complainant was under the influence of liquor. The
complainant went to the toilet. A scuffle then ensued between the
Plaintiff and the Defendant. as to what exactly happened thereafter.
The Plaintiff was arrested by the security officer on the scene.
Allegations against the Plaintiff were that he raped the complainant.
The police were summoned and the Plaintiff was arrested based
on
allegations of rape. On 26 September 2019 the Plaintiff, duly legally
represented applied for bail. The bail application fell
under
Schedule 5 of the Criminal Procedure Act 51 of 1977 (CPA). It
was opposed by the State. The court subsequently refused
the bail
application. The accused remained in custody until 1 June 2020 when
the State withdrew the charges on the basis that there
was no prima
facie evidence against the Plaintiff.
[3]
The Plaintiff testified that the complainant was under the influence
of
liquor and was causing trouble at the event. He accompanied her to
the gate. Near the gate, she pushed him which escalated to a
wrestle
on the ground as he tried to subdue her. He confirmed that he was
duly arrested on the scene. The Plaintiff called no further
witnesses
and closed his case.
[4]
The Defendants called Constable Lenkoane as their first witness. He
testified
that he was on duty on 8 September 2019. He was summoned to
the scene where the Plaintiff was already arrested by the security at
the stadium. He testified that one Mr Meje, the security officer,
approached him and handed the Plaintiff to him. The Plaintiff
had
already been assaulted by members of the community. He requested Mr
Meje to provide him with his personal particulars but the
latter
informed him that he stayed at an informal settlement area in
Bloemfontein where there were no addresses. Meje, however,
provided
him with his contact details in the form of a cell phone number.
[5]
Ms Jacobs, the investigating officer also testified in the bail
proceedings.
She testified that she had tried more than once to trace
the eye witness Tshepo Meje. She confirmed her testimony in the bail
application
that she testified that the State had a strong case as
well as a strong eye witness who was available to testify against the
Plaintiff.
When confronted with the fact that she had had no contact
with the witness and had no statement of him, she explained that she
was entitled to rely on hearsay evidence during the bail proceedings
and that according to her, also had an affidavit of the police
officer who made reference to the witness. She conceded that while
she testified in the bail proceedings that all the statements
were
taken and that only the DNA results were outstanding, her testimony
was not entirely correct on the aspect.
[6]
Ms Andrews, the Public Prosecutor, in the bail proceedings also
testified. She
testified that she evaluated the docket for the
purposes of bail. She testified that according to the investigating
officer, there
was a strong eye witness who was available to testify.
She also testified that the State was entitled to rely on hearsay
evidence
during the bail application. She conceded that Mr Meje was
crucial as an eye witness for the State and that it was important
that
his statement be obtained. She confirmed that she was aware that
at the time of the bail proceedings, his statement had not been
obtained.
[7]
Mr Machogo, the Regional Court Prosecutor testified that he withdrew
the charges against the Plaintiff
as the crucial eye witness
statement had not been obtained and the DNA results were still
outstanding.
[8]
The fundamental rule is that the liberty of an individual is
inviolable.
Our courts hold the view that the deprivation of liberty,
through arrest and detention is prima facie unlawful.
[9]
Section 60(11) of the CPA provides that:
“
…
where an accused
is charged with an offence referred to-
(a) …
(b) In schedule 5,
but not Schedule 6, the court shall order that the accused be
detained in custody until he or she is dealt
with in accordance with
the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which
satisfies the court that
the interests of justice permit his or her release.”
[10]
The duty is on the accused to discharge the onus as set in section
60(11) (a) and
(b) of the CPA. The State carries no such burden.
Section 60(4)(a)-(e) then spells out the circumstances under which
the interests
of justice would not permit the release of an accused
on bail.
[11]
It is conceded on behalf of the Plaintiff that his arrest on the
charge of rape was lawful.
It is further conceded that his detention
from 8 September 2019 until 26 September 2019 when his bail
application was launched,
was also lawful. The contention arises on
the testimony led during the bail application as well as the decision
by the Prosecutor
for the day, to oppose bail. The main contention is
that on the day of the bail application, the affidavit of the crucial
witness,
Mr Meje had not been obtained. The affidavit of the
complainant did not establish the rape offence. The medical report on
the investigation
did not establish any penetration and lastly, it
was wrong for the State, by way of the investigating officer and the
Prosecutor
to make submissions to the effect that the case against
the Plaintiff was strong.
[12]
On his own version, during cross-examination, the Plaintiff testified
that he was
accompanying the complainant to the loo. The complainant
was walking in front of her and he grabbed ‘her not in the
right
way’. He testified that the complainant asked why he was
grabbing her like that and if she wanted to rape her. The complainant
grabbed him by the clothes and assaulted him with an open hand.
[1]
[13]
The above version does not resonate with what he said in examination
in chief. In this
regard, he says he was following the complaint. He
then asked the security officer to accompany the complainant to
the toilet
because “those
ladies that she was in the company
of said that she was troublesome
and that is all
(
my emphasis)
[14]
When one has regard to the above, one wonders why the Plaintiff holds
the view that
his arrest and detention prior to the bail proceedings
was lawful. In my view, this is a classic case where the Magistrate
should
have been joined as a party in these proceedings to explain
the reasons for refusing bail.
[15]
The investigating officer was not candid with the court. When she
testified that
the only outstanding issue with regard to the
investigation was the DNA, she knew that the statement was
untruthful. She even discussed
it with the Public Prosecutor.
[16]
It must however be remembered that these were bail proceedings and
not the trial
proceedings. The state is entitled to rely on hearsay
evidence. The Plaintiff was legally represented during the bail
proceedings.
The defence did not object to the admissibility of the
said evidence being led. At that stage, the information in the
possession
of the state was that Meje was a potential witness. There
is no evidence that he was completely untraceable. When the
Plaintiff
launched these proceedings, the investigation was still
under way. The State bore no onus at that stage to prove the case
against
the accused beyond a reasonable doubt.
[17]
What the State had at that stage was the fact that Meje informed
Constable Lenkoane
that the accused was found on top of the
complainant. In his statement accepted into evidence, Constable
Lenkoane says that the
Plaintiff was trying to rape the
complainant.
[2]
The fact that
the medical report or the so called J88 is ‘neutral’ does
not assist the Plaintiff. The doctor pertinently
says in that report
that the ‘
absence
of physical genital injuries does not exclude sexual penetration”
[3]
[18]
As indicated above, I hold the view that the Magistrate should have
been joined in
these proceedings. The record is replete with
instances where he ‘suggested’ to the parties not to go
into the merits
of the case. Even in his ruling on the bail
application, he did not refuse bail on the basis that there was a
strong case against
the Plaintiff. He says the following in his
judgment:
“
You were
assaulted. Your safety. Can we really ignore things like this? Can
we?
Talking
about the strength of the case, yes I leave that one for the trial
court but the state keeps on saying you were caught
red-handed
.”
[4]
(
my emphasis)
[19] In
my view the fact that the State said that the case against the
Plaintiff was strong is neither here nor
there as it clearly did not
influence the Court. The fact that a crucial witness statement had
not being obtained does not necessary
mean that bail could not be
entrained or opposed at that stage. What is important is that the
police had allegations that the Plaintiff
was arrested while on top
of the Complainant on allegations that he was trying to rape her. A
witness was at that state available
who gave his contact details to
the police. The fact that charges were later withdrawn does not
detract from the fact that an offence
was apparently committed and
there were cogent reasons to oppose bail. The Magistrate held the
view that the Plaintiff failed to
discharge his onus as stipulated in
s (60) (11) (b) and was not at all persuaded by the allegations by
the state that the was a
strong case against the Plaintiff, hence the
view that the Magistrate should have being joint. I am of the view
that the claim
of the Plaintiff must fail. I accordingly make this
order:
ORDER
1.
The Plaintiff’s claim is dismissed
with costs.
P.
E MOLITSOANE, J
On
behalf of the Plaintiff:
Adv.
MDJ Steenkamp
Instructed
by:
Schoeman
Steyn Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Ms
I Macakati
Instructed
by:
The
State Attorney
BLOEMFONTEIN
[1]
See Bail Application Transcription, EXH A- page15, lines 20 et seq.
[2]
See EXH B page 24 para 4.
[3]
See EXH B page 21.
[4]
See EXH A page 16 para 10-14.