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[2023] ZAECMHC 39
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Ngcama v Minister of Police and Another (2555/201) [2023] ZAECMHC 39 (1 August 2023)
FLYNOTES:
CRIMINAL – Arrest –
Child
victim
–
Avers
arrest was without reasonable suspicion – Focus placed on
quality of information officer possessed – Officer
interviewed all parties involved – Reliance on witnesses’
statements, records of interview and medical report
– Enough
to formulate reasonable suspicion that child was raped –
Perpetrator satisfactorily identified –
Suspicion based on
solid grounds –
Criminal Procedure Act 51 of 1977
,
s
40(1)(b).
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE
NO:
2555/201
In
the matter between:
KERIKE
IVAN NGCAMA
PLAINTIFF
and
MINISTER
OF POLICE
1
st
DEFENDANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
2
nd
DEFENDANT
JUDGMENT
CENGANI-MBAKAZA AJ
INTRODUCTION
[1]
The plaintiff instituted action for unlawful arrest and detention
against the Minister
of Police (the 1
st
defendant) and the
National Prosecuting Authority (the 2
nd
defendant) for
malicious prosecution. On 12 July 2022, the plaintiff withdrew a
claim for malicious prosecution against the second
defendant and
tendered to make payment for the wasted costs. The tendered payment
was accepted by the second defendant’s
counsel.
THE PLEADINGS
[2]
In pursuit of his claim for unlawful arrest and detention, the
plaintiff issued a
combined summons against the 1
st
defendant (the defendant) on 27 July 2016. The particulars of claim
are summarised as follows:
(a)
On 20 April 2015, at KSD College Libode, the
plaintiff was wrongfully arrested and detained by members of the
South African Police
Service (SAPS), where it was alleged that he
committed a crime of rape. The arrest was effected by the said
members of SAPS without
reasonable suspicion and justifiable cause
and without any warrant authorizing it.
(b)
The plaintiff further averred that he was
unlawfully detained at Libode police station on 20
th
April 2015, was later transferred to Wellington
Prison, and later released on 31
st
March 2016. He demands a sum of R2 500 000.00
(Two Million, Five Hundred Thousand Rand only) for a delictual claim
against
unlawful arrest and detention.
[3]
The defendant delivered a plea dated 18 November 2016 and boldly
denied the events
as pleaded. This led to defendant filing an amended
plea on 07 June 2022. In the amended plea, the defendant averred that
the plaintiff
was lawfully arrested and detained for a charge of rape
of a five-year-old grade R girl by the name of [K……].
[4]
The claim is based on vicarious liability; it being pleaded that the
members of SAPS
committed a delict when acting in the course and
scope of the defendant’s employment. In a pre-trial conference
held on 12
April 2023, the parties agreed that there would be no
separation between merits and quantum. The trial proceeded on that
basis.
[5]
Counsel for the defendant admitted that the onus rests on the
defendant to justify
arrest. He further admitted that the duty to
begin consequently rests with them.
DEFENDANT’S CASE
[6]
Warrant Officer Xhala (the arresting officer) works for the Family,
Child, and Sexual
Offence Unit (FSC) at SAPS. He received a police
docket from Libode police station. The docket consisted of a
statement from the
victim’s mother who deposed that she
observed the child oozing a substance from her genitals and peeing on
herself. She ascertained
from the child what was wrong. The child
could not reveal until she later informed her that she was raped by
the plaintiff.
[7]
The docket further consisted of a medical report commonly known as a
J88. This report
was compiled by the Doctor after he examined the
five-year-old girl on 17 April 2015. The details on the
gynaecological examination
are contained on pages 2 and 3 of the
report. The Dr observed that the Clitoris, labia minora, frenulum of
the clitoris and para-urethral
folds were bloodstained. Additionally,
there was active vaginal bleeding and scratches in her genitals to
which the Doctor concluded
that a vaginal penetration by a blunt
object could have occurred in her genitals.
[8]
The arresting officer interviewed the child in the presence of her
mother. The child consistently
informed him that she was raped by the
plaintiff. The child implicated the plaintiff by calling his name and
further described
him as Sheniye’s brother. In a
statement written in both English and IsiXhosa languages the child
stated that the plaintiff
called her at his home and raped her.
[9]
The arresting officer testified that considering the evidence that he
possessed in the police
docket, he formulated a reasonable suspicion
that the plaintiff had committed a crime of rape. He then approached
the suspect and
introduced himself. He informed him of his
constitutional rights and executed arrest and detention. The
arresting officer further
testified that even though no semen was
detected which could be utilised to provide DNA evidence, he still
held a reasonable suspicion
that the plaintiff had committed the said
crime.
[10] In
cross-examination, counsel for the plaintiff suggested that the
officer should not have arrested the plaintiff
because there was no
DNA evidence which is required for conviction in rape cases. Counsel
claimed that the plaintiff should have
been interviewed before
arrest. The officer should have relied on plaintiff’s denial of
facts and not arrest him, so he suggested.
The arresting officer
testified that he interviewed the plaintiff and that he denied the
allegations against him.
[11] Counsel
criticised the arresting officer for relying on the child’s
statement which was not commissioned.
The arresting officer conceded
that the child statement was not commissioned and asked the court to
note that this was a child
and that he interviewed her in the
presence of her guardian (the mother).
[12]
Counsel further criticised the arresting officer for not employing
less invasive arrest techniques. It was
put to him that the plaintiff
was not a flight risk. The arresting officer conceded that there was
no likelihood that the plaintiff
would evade his trial. He further
stated that he was not required to request a warrant prior to his
arrest. Based on the
information in the police docket and his
analysis of facts he decided that the plaintiff ought to be arrested
and detained. The
arresting officer was adamant that his actions were
justified. With this evidence, the defendant closed his case.
THE PLAINTIFF’S
CASE
[13]
The plaintiff testified that at the time of his arrest, he was a
student at FET College in Mthatha. On the
day of his arrest, the
police officer came to school, introduced themselves and publicly
informed him of the crime he was being
arrested for.
[14]
They arrested and detained him at Ngqeleni Police Station for three
days, later at Libode police station
and further at Wellington
prison. After his first appearance in court, he was detained for a
period of seven days. He later applied
for bail which was denied. He
was detained for a period of twelve months. When the 5-year-old girl
testified in court, she implicated
him and another known 5-year-old
boy as the perpetrators. He testified that during criminal
proceedings, the court returned a verdict
of not guilty and
discharged him accordingly.
[15]
The plaintiff further testified that the police cells were filthy
with a capacity of about 10 inmates inside.
They were made to wash
with cold water and sing the whole night. It was easy to fight among
the inmates, so he testified.
[16] In
cross-examination the plaintiff testified that on the day of the
incident he had paid a visit at Nqadu
area. He admitted that the
child is his neighbour and would normally come to his home to play
with others. The plaintiff further
confirmed that he made a statement
to the police and informed them that on the day of the incident he
saw the child fetching water
at his home. It was further put to him
that the arrest and subsequent detention were justified.
ISSUES
[17]
The issues up for debate are whether plaintiff’s arrest and
subsequent detention were justified and
whether the less invasive
methods of arrest were not necessary in the circumstances.
THE LAW
[18]
Section 12 of the Constitution of the Republic of South Africa (the
Constitution)
[1]
guarantees
the freedom and security of a person. The section pledges
inter
alia
the
right not to be deprived of freedom arbitrarily without a just cause.
The onus rests upon the arrestor to prove that the arrest
was
objectively lawful.
[2]
[19]
It is common cause that the plaintiff was arrested without a warrant
of arrest.
Section 40(1)
(b) of the
Criminal Procedure Act (CPA
)
[3]
prescribes
arrest without a warrant as is relevant in this case. The Section
reads,
‘’
A
peace officer may, without a warrant, arrest any person whom he
reasonably suspects of having committed an offence referred to
in
Schedule 1, other than the offence of escaping from custody’’.
[20] To
prove that the arrest was lawful, it must be satisfied that:
(i)
The arresting officer was a peace officer;
(ii)
the arresting officer entertained a
suspicion;
(iii)
the suspect to be arrested committed an
offence referred to in Schedule 1; and that
(iv)
the suspicion rested on reasonable grounds.
[21]
The ruling in
Mabona
[4]
demonstrates
how a reasonable suspicion is formed.
Jones
J explained what the concept of reasonable suspicion entailed. First,
he held, the test is an objective one involving an enquiry
into
whether a reasonable person in the arrestor’s position and
having the same information would have considered that there
were
‘good and sufficient grounds for suspecting that the arrestee
had committed a Schedule 1 offence. Secondly, the arrestor
is
required to analyse and assess the quality of the information
critically and not accept it without checking it where it can
be
checked. Thirdly, while the section requires ‘suspicion but not
certainty’, that suspicion must be based ‘upon
solid
grounds’ because if it is not, it is ‘flighty or
arbitrary, and not a reasonable suspicion’.
[22]
It is trite that if the jurisdictional facts are satisfied, the peace
officer may invoke the power conferred
upon him and arrest the
suspect, but he has discretion as whether to exercise that power. In
Holgate-
Mohammed v Duke
[5]
,
it was stated that the exercise of discretion will be unlawful if the
arrestor knowingly invokes the power to arrest for a purpose
not
contemplated by the legislator.
[23]
The
Sekhoto
[6]
matter ruled that once jurisdictional facts are present the
discretion of whether to arrest arises. Harms DP set some limits of
the reasonable suspicion discretion.
“
At
para 42-44:
1.
Peace officers are
entitled to exercise this discretion as they see fit, provided they
stayed within the bounds of rationality.
2.
This standard is not
breached because an officer exercised the discretion in a manner
other than that deemed optimal by the court.
3.
The standard is not
perfection, or even the optimum judged from the vantage of hindsight,
and, as long as the choice made fell within
the range of rationality,
the standard is not breached.
4.
It is clear that the
power to arrest is to be exercised only for purpose of bringing the
suspect to justice; however, arrest is
but one step in that process.
5.
The arrestee is to be
brought to court as soon as reasonably possible, and the authority to
detain the suspect further is then within
the discretion of the
court.
6.
This discretion is
subject to a wide-ranging statutory structure and, if a peace officer
were to be permitted to arrest only when
he or she is satisfied that
the suspect might not otherwise attend the trial, then the statutory
structure would be entirely frustrated.
To suggest that such a
constraint upon the power to arrest is to be found in the statute by
inference is untenable.
7.
The arrestor is not
called upon to determine whether a suspect ought to be detained
pending trial; that is for the court to determine;
and the purpose of
an arrest is simply to bring the suspect before the court to enable
it to make that determination.
8.
The enquiry to be made by a
peace officer is not how best to bring the suspect to trial, but only
whether the case is one in which
the decision ought properly to be
made by a court. The rationality of the arrestor’s decision on
that question is depended
upon the facts of the particular case, but
it is clear that in cases of serious crimes such as those listed in
Schedule 1, an arrestor
could seldom be criticised for arresting a
suspect to bring him or her before the court.”
THE
PARTIES’ LEGAL SUBMISSIONS
[24] In
his heads of argument, the plaintiff launched certain points of
criticism regarding the defendant’s
defence to the claim. He
brought the court’s attention to the defendant’s plea, on
page 31 and paragraph 3 of page
32 of the index bundle. The paragraph
reads:
‘’
3
…………. the defendant further contends that
Plaintiff was lawfully arrested and detained for charge
of rape of a
five-year-old Grade R girl by the name of [ K….]’’
[25]
The plaintiff argued that the defendant’s defence is a bare
denial as it does not contain a specific
reliance on a Section in the
CPA.
[26]
Before traversing on the facts and other points of criticism that
were raised by the parties, I pause to
deal with this preliminary
issue. To settle the argument raised, it is imperative to first have
regard to the basic principles
governing pleadings in general. The
pleadings must state the facts only and not the law; pleadings must
state the material
facts and not the evidence required to prove those
facts and lastly, the material facts must be pleaded concisely. The
other party
must not be ambushed, he must know which case to meet.
[27]
In
Minister
of Safety and Security v Slabbert,
[7]
the
court stated,
“
The
purpose of pleadings is to define the issues for the other party and
the court. A party has a duty to allege in the pleadings
the material
facts upon which it relies, it is impermissible for a plaintiff
[in
this case the defendant]
to
plead a particular case and seek to establish a different case at
trial.”(Accentuation added)
[28] At
the onset, the defendant’s plea was a bare denial until he
filed an amended plea which specifically
stated that the plaintiff
was lawfully arrested and detained for charge of rape of a
five-year-old Grade R girl by the name of
[K……].
[29]
It must be remembered that a pre-trial conference was held on 12
April 2023
[8]
.
In paragraph 2 of the minutes, the following is stated,
‘’
Both
parties agreed that at this stage neither party has been prejudiced
due to non -compliance with the Rules of Court.”
[30] At
the beginning of the proceedings, there were no preliminary issues
raised and the trial was conducted
on the understanding that the
defendant bore the onus to prove that the arrest and subsequent
detention were justified. The fact
that a rape charge falls under
Schedules 1 of the CPA was never placed in dispute. The defendant
admitted that the plaintiff was
arrested without a warrant. Counsel
for the plaintiff laid no basis to demonstrate that a different case
was pleaded, and that
he suffered prejudice. Instead, he referred the
court to the case of Jowell v Bramwell-Jones 1998(1) SA 836 (W). It
is insignificant
to dwell much on this case, it is safe to conclude
that the facts at the
Jowell
matter as well as the principles
laid down thereto are irrelevant for purposes of these proceedings.
In the present matter, the
material facts were known by both parties
throughout the proceedings. The fact that no relevant section was
quoted in the pleadings
is immaterial. In my considered view, the
plaintiff suffered no prejudice as a result of the lack of a
quotation of a particular
section in the CPA.
[31]
Counsel also criticized the defendant for not calling the child and
her mother to give evidence before court.
Their statements remain
hearsay with no probative value to be attached to them at all, so the
argument continued.
[32]
The plaintiff further argued that the child’s statement was not
commissioned and should accordingly
be rejected.
[33]
The defendant, on the other hand, referred the court to several
authorities and argued that rape is a very
serious offence that
justified arrest and made issuing of summons inappropriate. The
defendant further argued that the information
at the arresting
officer’s disposal was sufficient to justify the arrest and
subsequent detention.
EVALUATION
[34]
The following facts are found to have been proven:
(a)
Warrant Officer Xhala was a peace officer;
(b)
He entertained a suspicion;
(c)
a suspicion was that the plaintiff had committed a
Schedule I offence;
(d)
the plaintiff was arrested on 20 April 2015;
(e)
on his first appearance before the court, he was
detained for seven days;
(f)
on the day of the formal bail application, bail
was opposed and formally denied by the court;
(g)
the plaintiff is Sheniye’s brother and also
the child’s neighbour;
(h)
when the matter was tried, the child witness
implicated the plaintiff and another five-year-old boy as
perpetrators of the crime
of rape;
(i)
the court returned a verdict of not guilty
in terms of
Section 174
of the CPA and
(j)
the plaintiff was released on 31 March 2016.
ARREST
[35]
Our courts have accepted that if an arrest or detention is by or at
the instance of any public officer or
authority, the responsible
official must justify the arrest or detention by pointing to the
statute or statutory regulation from
which he claims to derive his
power to arrest or detain the detainee and he must demonstrate that
he acted within the scope of
the power conferred, and further that he
has observed the provisions of the statute or regulation that
empowered him to do so.
[9]
As
alluded,
Section 40(1)
(b) of the CPA justifies arrest without a
warrant.
[36]
Rape of a minor child is a statutory offence falling within the ambit
of
Section 3
of Criminal Law Sexual Offences and Related Matters
Amendment Act, 32 of 2007.
[10]
In
terms of statute rape it is defined as an act of ‘sexual
penetration’ with another person without such person’s
consent. The statement of the child’s mother, that of the child
and a medical report were discovered in the bundle of documents.
An
act of sexual penetration was demonstrated in the said statements.
The child consistently informed the arresting officer that
she was
raped by the plaintiff. It is imperative to note that a five-year-old
lacks the capacity to consent to sexual intercourse.
[11]
The
arresting officer obtained a statement from the child’s mother
to prove consistency in the child’s complaint and
not to prove
that rape had occurred.
[12]
This
is a standard practice that is admitted in criminal proceedings in
particular rape matters. The statement is normally referred
to as
first report evidence. With respect, the contention that the mother’s
evidence is irrelevant because he was not present
when the rape
offence was allegedly committed is misplaced. Additionally, the fact
that semen was not emitted during the alleged
sexual intercourse is
irrelevant for purposes of Section 40(1) (b) of the CPA. This then
settles the argument that scientific proof
in the form of DNA
analysis was not produced.
[37] It
is further my considered view that the focus should not be on the
quantity of evidence that a police officer
had at his disposal. The
focus should rather be on the quality of information that the officer
possessed.
[38]
The following passage quoted from the matter of
Biyela
v Minister of Police
[13]
is
relevant in these proceedings:
“
At
para [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 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 arrestee committed a Schedule 1 offence.”
[39]
On the hearsay nature of evidence, as argued, it must be remembered
that the arresting officer not only relied
on the witness’s
statements but also interviewed all the parties involved on the
alleged charge of rape. I disagree with
the plaintiff’s counsel
that the child and the mother ought to have been called to testify in
these proceedings. I am therefore
not persuaded that the evidence of
the arresting officer qualifies as hearsay in terms of
Section 3
(1)
of the
Law of Evidence Amendment Act 45 of 1988
. Regardless, the
principle in
Biyela
[14]
matter
settles the argument raised on this aspect.
[40] It is
noted that the child statement was not commissioned. To address this
point, it is commanding to consider
the Standing Orders 322, 327 and
Standing Order General 18 of 1990. The guidelines relating to the
taking of a statement of a child
victim are set out in the Standing
Orders. In terms of Section 28 of the Constitution, a child is a
person under the age of 18
years. Police are guided to determine
whether or not a child understands the oath or affirmation. In terms
of the Standing Orders,
it is generally accepted that a child under
the age of 12 years does not understand the oath or affirmation. This
then explains
why the child’s statement was not commissioned.
[41] It
is further accepted that the child was a 5 –year- old grade R
girl. Most importantly she was interviewed
in the presence of her
mother. It was therefore significant for the arresting officer to
keep records of the said interview. The
arresting officer informed
the court that the content of his interview with the child was
consistent to what was contained in the
statement. In my
considered view, reliance on the statements of the witnesses, the
records of the interview of the child
and the plaintiff as well as a
medical report was enough to formulate a reasonable suspicion that
the child was raped, and the
perpetrator was satisfactorily
identified. Even though the date of the incident was not specifically
mentioned, the plaintiff admitted
to have seen the child at his home
on the day of the alleged incident. The issue of alibi was raised
later, hence the arresting
officer could not make any follow up to
verify it. I therefore find that the information was credible and
trustworthy for purposes
of formulating a reasonable suspicion that a
Schedule 1 offence was committed. Considering the above, the
suspicion was based on
solid grounds. I am therefore satisfied that
prior to arrest, the jurisdictional facts were established. The fact
that the plaintiff
was discharged in terms of Section 174 of the CPA
has no bearing on the issues raised.
DETENTION
[42]
An argument was raised that the arrest should have been effected by
less invasive means. This triggers a
question on whether the
arresting officer was justified to detain the plaintiff. The methods
of securing the attendance of an accused
in court are encapsulated in
Section 38 of the CPA.
[15]
In
Louw
v Minister of Safety and Security
[16]
,
it was stated that police are obliged to consider each case when a
charge has been laid for which a suspect might be averted whether
there are no less invasive options to bring the suspect before a
court other than immediate detention of the person concerned.
If
there is no reasonable apprehension that the suspect will abscond or
fail to appear in court if the warrant is first obtained
for his or
her arrest or a notice or summons to appear in court is obtained,
then it is constitutionally untenable to exercise
power to arrest.
[43]
In
McDonald
v Kumalo
[17]
,
Graham JP reiterated that, the object of the arrest of an accused
person is to ensure his attendance in court to answer to a charge,
and not to punish him for an offence of which he has not been
convicted.
[44]
It has been established that effecting an arrest is a harsher method
of initiating a prosecution than citation
by way of summons but if
circumstances exist which make it lawful under a statutory provision
to arrest a person as a means of
bringing him to court, such arrest
is not unlawful even if it is made because the arrest will be more
harassing than summons.
[18]
At
17H, Schreiner JA said,
“
But
there is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective.”
[45] In
the case under consideration, the arresting officer conceded that
there was no likelihood that the plaintiff
would evade his trial. The
arresting officer’s role was to arrest the plaintiff to bring
him before the court. I find that
this was a reasonable step to
employ. I also find that in doing so, he followed all the relevant
procedures, I say so because the
plaintiff was aware of the charges
that were levelled against him, he was informed of his constitutional
rights and was brought
to court within a reasonable time. At page 6
of the index bundle titled ‘index on docket contents’, it
is noted that
the plaintiff was informed of his rights to consult
with a legal representative of his choice. He thus elected to be
provided with
a legal practitioner.
[46]
According to my assessment of the
Sekhoto
[19]
case,
since the plaintiff was charged with an offence falling under
schedules 1 and 6 of the CPA, the quality of information in
favour of
the arrest and detention was overwhelming. Even if the arresting
officer had a belief that arrest will be more harassing
than summons,
he was unable to prevent arrest and subsequent detention for purposes
of bringing the plaintiff to justice.
The
statutory framework governing bail would be undermined if the
arresting officer were only required to arrest in circumstances
where
he was satisfied that the suspect would not attend the trial. This
was not a trivial offence where the peace officer would
have been
expected to employ other methods of arrest. It was for the court to
make a determination on whether the plaintiff was
eligible to be
released on bail or on warning.
I
agree with the defendant’s counsel that the issuing of summons
in this situation would be inappropriate.
[47] Section
60(11) (a) of the CPA justifies detention in rape cases involving
minor children. This provision reads:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to (a) in 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 exceptional circumstances
exist which in the interest of justice permit his or
her release”
[Emphasis added]
[48]
The word ‘
shall’
demonstrates that the detention
is peremptory, and the court can only release the suspect after
having heard the evidence and exercising
its discretion based on the
circumstances of the case. In this scenario, the onus was placed upon
the plaintiff to adduce evidence
to prove that exceptional
circumstances exist which in the interest of justice permitted his
release. The plaintiff’s further
detention which spiralled up
to a period of twelve months was dependent upon the lawfulness of the
Magistrate’s orders. The
facts demonstrate that although the
plaintiff was allowed to adduce evidence in a formal bail
application, he failed to meet the
necessary threshold. The situation
is not at all the fault of the arresting officer.
[49]
Our Constitution empowers police officers to prevent, combat and
investigate crime, to maintain public order,
to protect, and secure
inhabitants of the Republic, and to uphold and enforce the law.
[20]
The
South African Police Act, on the other hand, permits police officers
to exercise their authority and to carry out the responsibilities
granted to or delegated to them by law, subject to the Constitution
and with proper consideration for each person’s fundamental
rights. Failure to effect arrest and detention in circumstances where
it is reasonable and justified may undermine the community’s
confidence in the criminal justice system. In my respectful view, the
arresting officer carried out his official task in a manner
that was
rational under the circumstances. I, therefore, conclude that the
arrest and subsequent detention of the plaintiff were
lawful. It then
follows that plaintiff’s claim must fail.
ORDER
[50]
The plaintiff’s claim is dismissed with costs.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
APPEARANCES:
Counsel
for the Plaintiff:
Adv
SM Luzipho
Instructed
by:
M
K Majavu & Associates
Plaintiff’s
Attorney
Cathedral
Building
27
Victoria Street
Mthatha
Counsel
for the Defendant:
Adv
S D Mfeya
Instructed
by:
State
Attorney
Defendant’s
Attorney
Broadcast
House,
94
Sisson Street,
MTHATHA
DATE HEARD: 30 June
2023
DATE
DELIVERED:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email. The date and time
for hand-down is deemed
to be 01 August 2023 at 10:00
[1]
Act
108 of 1996, The Constitution.
[2]
Minister
of Law and Order and Others v Hurley and Another 1986(3) SA 568 AD
at 589 E-F;Minister of Law-and-Order v Matshoba1990
(1) SA 280 AD at
284.
[3]
The
Criminal Procedure
Act 51 of 1977
.
[4]
Mabona
& another v Minister of Law and Order & others
1988
(2) SA 654
(SE) at 658E-H
,
[5]
1984
(1) All ER 1054 (HL) 1057.
[6]
2011
(1) SACR 315
(SCA).
[7]
Minister of Safety and
Security v Slabbert [2009] ZASCA 163; (2010) 2 All SA 474 (SCA).
[8]
Pages 66- 70 of the
amended index to pleadings
[9]
Madyibi
v Minister of Police (4132/17) [2020] ZAECMHC 11;2020(2) SACR 243
(ECM) (17 March 2020).
[10]
The
Criminal Sexual offences and Related matters Amendment Act, the Act.
[11]
Section
1(2)(d)(iv) Criminal Law Sexual Offences and Related Matters
Amendment Act 32 of 2007.
[12]
In S
v Hammond (500/03)
[2004] ZASCA 71
;
[2004] 4 All SA 5
(SCA) (3
September 2004).
[13]
(1017/2020)
[2022] ZASCA
36
;
2023 (1) SACR 235
(SCA) (1 April 2022).
[14]
Supra
footnote no 13.
[15]
‘’
38
METHODS OF SECURING THE ATTENDANCE OF ACCUSED IN COURT
(1)
Subject to section 4(2) of the Child Justice
Act, 2008 (Act 75 OF 2008), the methods of securing the attendance
of an accused
in court who is eighteen years or older in court for
purposes of his or her trial shall be arrest, summons, written
notice and
indictment in accordance with the relevant provisions of
this Act.’’
[16]
2006
(2) SACR 173(T)
at 186a-187(e).
[17]
1927
AD 293
at 301.
[18]
Tsose
v Minister of Justice and Others
1951 (3) SA 10(A)
at 17F-H.
[19]
Above
n 8.
[20]
Section
205 (3).