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[2023] ZAECMHC 38
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Minister of Police v Sabisa and Another - Application for Leave to Appeal (2889/2016) [2023] ZAECMHC 38 (11 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Case
No:
2889/2016
In
the matter between:
MINISTER
OF POLICE
Applicant
and
THANDEKILE
SABISA
First
Respondent
LAWRENCE
NZIMENI MAMBILA
Second
Respondent
JUDGMENT (Application for
leave to appeal)
NHLANGULELA DJP
[1]
The applicant applies for leave to appeal
pursuant to the judgment that the police had unlawfully arrested,
detained and assaulted
the respondents in violation of the provisions
of ss 44 and 50 (1) (a) of the CPA and their constitutional rights in
terms of ss
10 and 12 (1) of the Constitution which are: not to be
deprived of their freedom arbitrarily or without just cause, to be
free
from all forms of violence and not to be tortured.
[2]
There is no appeal against the
quantum
of
damages that was fixed in the sum of R510 000 for payment to each of
the respondents. However, it was submitted on behalf of
the applicant
that since the payment of such damages depends on the appeal court's
decision on the liability issue, the judgment
on
quantum
will
not stand. These submissions are reasonable in my view. I did not
hear counsel for the respondent to be suggesting otherwise.
[3]
There is also no appeal against the factual
findings made by the trial court. The appeal is predicated
on legal
grounds. Therefore, the crisp issue for decision is whether, or not,
the trial court misapplied the provisions of ss 44
and 51 (1) (a) of
the CPA. Counsel for the respondent submitted that the judgment of
the trial court based on the application of
these subsections cannot
be faulted. Put differently, since the outcome of these proceedings
is limited to a decision in terms
of s 17 (1) of the Superior Courts
Act 10 of 2013 (prospect of success and /or compelling reason), this
court must only confine
its decision on the application of ss 44 and
51(1) (a) of the CPA.
[4]
On the consideration of the approach that I
adopted, the provisions of s 44 envisage the use of a warrant
of
arrest that would have been authorised on a prescribed form. In this
case, I found that in completing the form the magistrate
did not
indicate the place where the respondents had to be taken to upon
arrest. In light of that omission, I held the view that
the police
were obliged to arrest and take the respondents directly to the
police station, and as soon as possible as is envisaged
in s 50 (1)
(a) of the CPA. I rejected the submission that the section
permits deviating to the Butterworth office where
interrogations,
assault, and torture were done. It also concerned me a great
deal that the police might not have obtained
a valid warrant of
arrest from the magistrate, which is the issue that, although not
debated, is relevant to the inquiry of lawfulness
or otherwise of the
arrest and detention. On this score, I have formed the opinion that
the Court of Appeal will provide guidance
on the issue of lawfulness
of arrest and detention. The issue of whether the police should have
exercised discretion to effect
the arrest, or not to do so, is also
germane to the arrest inquiry. But counsel for the applicant
submitted that the discretion
issue does not arise by reason that the
execution of the warrants of arrest was all that the police were
entitled to do.
[5]
I would not have granted leave on the grounds that
the applicant was saddled with
onus
erroneously; and that the
pleadings of the respondents were bad in law. I need not repeat here
the reasons for which I dismissed
counsel’s submissions in that
regard. Since the appeal is not based on factual findings, the
ground that assault was
not proved by the evidence cannot be
sustainable.
[6]
That said, I incline towards granting leave to
appeal to the Supreme Court of Appeal for the reasons
that I have
stated. The costs should be in the cause of the appeal.
1. The application for
leave to appeal to the Supreme Court of Appeal is granted.
2. The costs of
this application shall be in the cause of the appeal.
ZM
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT.
Appearing
for the appellant:
Advocate
Notshe SC
With:
Advocate
Magadla
Instructed
by:
The
State Attorney
Mthatha.
Appearing
for the respondents:
Advocate
Mullins SC
With:
Advocates
Kroon and Makiwane
Instructed
by:
Notyesi
Attorneys
Mthatha.
Heard on:
06 July 2023
Date of delivery:
11 July 2023