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[2022] ZAECMKHC 16
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Barnard v Minister of Police and Another (CA98/2021) [2022] ZAECMKHC 16 (3 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Not Reportable
Case
no: CA98/2021
In
the matter between:
HERMANUS
ARNOLDUS BARNARD
Appellant
and
THE
MINISTER OF POLICE
1st
Respondent
and
HELGARD
POTGIETER
2
nd
Respondent
JUDGMENT
Govindjee J
[1]
The appellant claimed general damages and
legal costs against the first respondent, alternatively the second
respondent, for unlawful
arrest and detention. The presiding
magistrate dismissed the appellant’s claim, concluding that the
appellant’s
arrest
had
been
lawful
and
justified
in
the
circumstances,
and
that
the
subsequent detention was
also lawful. That decision is the subject of this appeal. There are,
in addition, various preliminary issues
to be considered.
Preliminary issues
[2]
The appellant applied for condonation of
its notice of prosecution of appeal, the
late filing of the record on appeal and for
an extension of the time limits for delivery thereof, together with
an order reinstating
his lapsed appeal.
[3]
The appellant’s damages claims were
dismissed with costs on 8 July 2019. A notice of appeal was delivered
timeously on 24
July 2019. The appeal should have been prosecuted
within 60 days of the delivery of this notice, by Friday 18 October
2019. Delivery
of the notice of prosecution of appeal was a few days
late, on 31 October 2019, albeit without the requisite copies of the
record,
and filed on 1 November 2019. The appeal record was only
served on 18 May 2021 and filed with
the
registrar on 19 May 2021, almost 500 days out of time. The
application for condonation was filed only on 21 July 2021.
[4]
Various reasons are advanced for this
unfortunate state of affairs. The record was not available for many
months, despite the appellant’s
representatives communicating
with the magistrate’s court and attending on the clerk of the
court in order to arrange a transcript.
The court file could not be
located. This explains the delay in delivering the notice of
prosecution of appeal and why the notice
was filed without the
requisite copies of the record.
[5]
It must also be accepted that the delays in
securing the court file were impacted
by
the Covid-19 pandemic and subsequent national lockdown. The
appellant’s correspondent attorney (Mr Powers) made regular
enquiries about the court file, and
arranged for his instructing attorneys to
attend on the clerk of the court’s offices to try to obtain and
uplift the original
file. A range of problems were experienced during
the course of those interactions. The file
was eventually located only on 12 May 2020.
[6]
For the next number of months, the appeal
record was erroneously not copied,
delivered
or
filed
due
to
communication
errors
on
the
part
of
the
offices
of
the
appellant’s
correspondent attorneys. The first respondent obtained an order on 16
February 2021 in the following terms:
‘
The
appeal
noted
by
the
respondent
on
24
th
July
2019
in
the
Magistrate’s
Court
for
the
district
of Uitenhage under case number 857/2015 is deemed to have lapsed…’
[7]
That order followed an application that was
served on the appellant’s attorneys
but not received by the attorney handling
the matter. The blame for this is placed on
a receptionist employed by the appellant’s
correspondent attorneys, and the suggestion is that the notice had
been mislaid
during an office reshuffle.
[8]
Upon receipt of the order, Mr Powers
realised for the first time that the record had not been delivered. A
misguided attempt to
file a fresh notice of appeal, which was
eventually withdrawn, followed. The appeal record was finally
indexed, paginated, copied
and delivered to the state attorney on 18
May 2021 and filed of record on 19 May 2021. The subsequent
application for condonation
was served and
filed approximately two months thereafter.
[9]
The respondents take issue with the manner
in which the appellant’s legal representatives have handled the
prosecution of
this appeal. They point, firstly, to the court order
confirming that the appeal had lapsed, suggesting that this order
should have
been appealed or rescinded prior to any application for
reinstatement of
the
appeal. Secondly, it is argued that the appellant has failed to show
good cause for the failure to timeously prosecute the appeal
and,
thirdly, has not addressed the issue of prospects of success on
appeal in the condonation application. There is also
a belated suggestion that the appellant
ought to have applied separately for condonation for its failure to
comply with the timeframe
mentioned in Uniform Rule 50(4). These
arguments will be addressed in turn.
[10]
The respondents argue that there is a
difference between appeals that have lapsed by operation of law, as
envisaged in the rules,
and instances where a court order has
‘disposed of the appellant’s intended appeal, insofar as
it declared the appeal
to have lapsed. It is therefore not open for
the applicant to approach this Court
with
a mere application, seeking condonation and reinstatement of the
appeal, at this
stage.’ The crux of
the submission is that the appellant ought first to have rescinded or
appealed the order confirming the
lapsing of the appeal.
[11]
That
submission does not survive scrutiny. The order in question was
declaratory in nature, confirming that the noted appeal was
deemed to
have lapsed.
The
order did no more than confirm the provisions of Uniform Rule 50(1):
a civil appeal from a magistrate’s court shall be
prosecuted
within 60 days after the noting
of
such appeal. Unless so prosecuted ‘it shall be deemed to have
lapsed’. That ‘deemed lapsing’ operated
irrespective of the court order, and because the 60-day time period
specified in the rule had been exceeded. The order was seemingly
not
rescindable in terms of the Uniform Rules or the common law. It was
also not appealable, being purely interlocutory in nature,
issued
during the progress of the litigation and not having a final effect
on the main action.
[1]
That
order does not dispose
of
any issue or any portion of the issue in the matter, nor does it
irreparably anticipate
or
preclude any of the relief which might be given at the hearing
(taking the ‘hearing’
in
the case to be the hearing of the appeal).
[2]
[12]
This
approach is, in effect, confirmed by the rules. Leaving aside the
reality that
the
parties agree that the appeal was deemed to have lapsed, so that
there are no prospects of successfully appealing the order
of 16
February 2021, an application for
the
reinstatement of an appeal which has lapsed, in the case of civil
appeals from the High Court, shall be heard by the court to
which the
appeal is made
[3]
. Section 84
of
the Magistrates’ Court Act, 1944,
[4]
inter
alia
,
provides that every party appealing must do so ‘within the
period … prescribed by the rules; but the court of appeal
may
in
any case extend such period’. It is for the court of appeal to
condone non- compliance with time periods, and extend time
periods,
on good cause shown. There
is
also authority confirming that practical considerations, including
the saving of costs,
warrant
the
court
of
appeal
combining
the
hearing
of
the
appeal
with
an
application for reinstatement.
[5]
These matters are properly before this court. The order of 16
February 2021 does not change that position.
[13]
The remaining preliminary arguments
advanced by the respondents are also without merit. In all cases of
time limitation, this court
enjoys the inherent right to grant
condonation where principles of justice and fairness demand this and
where the reasons for non-compliance
with the time limits have been
explained to the satisfaction of the court. The matter rests in the
judicial discretion of the court,
to be
exercised with due regard to the
circumstances of the case. Matters to be considered
in exercising this discretion include the
degree of non-compliance with the rules, the
explanation therefor, the effect of the
delay on the administration of justice and the prospects of success
on appeal.
[14]
An
application for condonation must provide a full explanation for the
delay, which must not only cover the entire period of the
delay but
must be reasonable.
[6]
6
The appellant has done so in this instance, his corresponding
attorney having explained the unfortunate circumstances that resulted
in the various delays. There are, of course, limits beyond which a
litigant cannot escape the result of his attorney’s
lack
of diligence.
[7]
In this case,
however, the attorney’s default may be said to be due
to
bona fide errors or misunderstandings within that office, and the
default has been
satisfactorily
explained. There can also be no doubt that the appellant throughout
intended to prosecute his appeal.
[15]
As
to the suggestion that the application for condonation deals with the
prospects
of success inadequately, the respondents overlook that the modern
practice
of setting down an application for condonation at the same time as
the hearing of the appeal results in a court of appeal
having before
it the judgment of the
court
below, the heads of argument and the full appeal record.
[8]
The main allegations
of
deficiencies in the magistrate’s reasoning and prospects of
success were, in any event, sketched in the application for
condonation.
[16]
The appellant effectively seeks to
vindicate his constitutional right not to be deprived of freedom
arbitrarily or without just
cause. The prospects of success are
weighty. The respondents were forced to concede during argument that
the arresting
officer
apparently failed to appreciate that he enjoyed a discretion whether
or not to arrest the appellant after forming a suspicion
that an
offence had been committed. In
these
circumstances, it is in the interests of justice for this court to
grant the condonation sought and to re-instate the lapsed
appeal. Any
prejudice suffered by the respondents is outweighed by the other
factors considered, notably the prospects
of success.
[17]
Finally,
the argument that there has been non-compliance with Uniform Rule
50(4), so that an additional application for condonation
was
required, is a non-starter.
Rule
50(1) must be read together with rule 50(4). As rule 50(4)
(c)
makes
apparent, the obligatory requirements of that subrule form part and
parcel of the proper prosecution of civil appeals from
the
magistrate’s court. Failure to duly prosecute an
appeal
results in the deemed lapsing of the appeal. Unlike
Minister
of Police v Nojoko
,
[9]
the case relied upon for this leg of the respondents’ argument,
the appellant
in
this case has correctly applied for reinstatement of the appeal in
circumstances where it has been deemed to have lapsed.
[18]
In
any event, the thrust of the application for condonation and
re-instatement relate to the appellant’s failures in duly
prosecuting the appeal, including failures in respect of the filing
of the record. The application must be read, in its totality,
to
include a request for condonation for all instances of non-compliance
with the applicable rules and formalities, resulting in
a lapsed
appeal. That aside, when considering the matter in its totality,
including the constitutional underpinnings of the
appellant’s
claim, it would not be in the interests of justice to deny
condonation or re-
instatement
of the appeal on a technical point raised for the first time during
argument.
[10]
10
[19]
While it is appropriate in these
circumstances for condonation to be granted and for the appeal to be
re-instated, the respondents
were well within their rights to oppose
and argue the point. The appellant seeks an indulgence and should pay
the
costs of that
application.
The pleadings
[20]
The
appellant was employed as the manager of Despatch Scrap Metal. He was
arrested
on a charge of theft on 10 July 2014. He claimed that there was no
reasonable or probable cause for arrest, and that he
would have
co-operated with police. There was no urgency for his arrest and he
lived at a fixed and known address. The second defendant
never made
an attempt to establish the appellant’s innocence and ignored
an explanation he provided. It was specifically
pleaded that the
arresting officer failed to properly exercise his discretion in
arresting the appellant.
[11]
The second defendant had no regard to less invasive methods of
securing the appellant’s attendance in court. The consequence
was that the appellant was detained in the Despatch Police Station
cells for approximately six hours before being released on warning.
The prosecution never proceeded.
[21]
As a result, the appellant claimed that he
suffered general damages in respect
of
embarrassment, being deprived of freedom of movement, loss of
amenities of life,
impairment
of dignity and contumelia in the amount of R90 000,00. The appellant
also incurred legal costs totaling almost R3500,00
in order to secure
his release.
[22]
The respondents claimed on the papers that
the appellant had committed an offence in a manner that justified an
arrest without a
warrant in terms of s 40(1)
(b)
of
the
Criminal Procedure Act, 1977 (‘the Act’), and that the
second respondent had exercised his discretion in a fair
and rational
manner. The subsequent detentions were also lawful and justified in
terms of sections 39 and 50 of the Act.
The trial proceedings
[23]
The second respondent received a complaint
of theft. Mr Petrus du Plessis Laas alleged that the appellant, who
rented his house,
had stolen three cycad trees,
as well as scaffolding, sometime between
February and July 2014. The appellant had keys to the property and
the garage and kept
vicious dogs, so that it was impossible for other
people to enter. Armed with this information, the second
respondent arrested the appellant at his
workplace, and without conducting any further investigation at the
appellant’s place
of residence. The second respondent knew the
appellant, as well as his place of work and residence. He conceded
that the appellant
was not a flight risk but nevertheless arrested
him without affording him
the
option to attend the police station in his own vehicle, or to appear
in court the following Monday on warning. The appellant
was not asked
for an explanation prior to his arrest.
The judgment of the court
a quo
[24]
The magistrate, after summarising the
evidence and quoting section 40(1)
(b
)
of the Act, concluded that the appellant had not offered any
explanation at the time,
so
that his evidence that the second respondent had been invited to his
house to see
the
scaffolding had to be rejected. The magistrate considered it
suspicious that the appellant had not testified in chief about
his
ongoing differences with Laas, and his suspicion that Laas had
himself removed the cycads. This prompted him to conclude
as follows:
‘
Such
information, if it was passed on to Potgieter at the time might very
well have given Potgieter reason to make further enquiries
or
investigations prior to effecting the arrest. In the matter at hand
Potgieter had an affidavit alleging theft of cycads and
scaffolding
valued
at
approximately R46 000,00, he had an identified suspect and no
explanation from the suspect indicating further enquiries might
be
called for. The matter squarely fell within the ambit of section
40(1)
(b)
of
the … Act.’
The appeal
[25]
Various grounds of appeal were advanced. In
particular, the appellant submitted that the magistrate erred and
misdirected himself
in basing his judgment
on findings unsupported
by the evidence. It was submitted that there was a duty on the second
respondent to investigate the charge
prior to arresting the
appellant, and that the respondents’ reliance on s 40(1)
(b)
was misplaced. The magistrate had failed to deal with the discretion
of the arresting officer fully, despite this having been pleaded
and
canvassed during evidence. The magistrate had erred in finding that
there was no duty on the arresting officer to use a less
invasive way
to secure the appellant’s attendance at court, particularly
given the circumstances of the case and the facts
within the second
respondent’s knowledge at the time. In essence, it was
submitted that the magistrate erred and misdirected
himself in
dismissing the appellant’s claim with costs.
Analysis
[26]
Section 40(1)(
b)
provides that a peace officer may
arrest any person whom they reasonably suspect of having committed an
offence referred to in Schedule
1, other than the offence of escaping
from lawful custody. Theft, whether under the common law or a
statutory provision, is listed
in Schedule 1.
[27]
The
respondents relied exclusively on the testimony of Potgieter to prove
the jurisdictional facts for a lawful arrest. Even accepting,
for
present purposes, the existence of the various jurisdictional facts
for an arrest, including reasonable
suspicion,
police officers are never obliged to effect an arrest. There remains
a discretion to be exercised.
[12]
1
A prudent police officer will, for example, not simply ignore less
invasive methods of bringing an accused person to justice, and,
in so
doing, fail to exercise the discretion properly or at all.
[13]
[28]
In
MR
v Minister of Safety and Security
,
[14]
the Constitutional Court considered whether
it
was
obligatory
for
police
officers
to
have
arrested
the
applicant for
committing
an offence. The applicant was 15-years old at the time, posed no
threat to the police officers, could be subdued with
ease, was
unlikely to commit another offence and was not a flight risk.
[15]
The Court confirmed that an ordinary reading of the applicable
section gave police officers a discretion whether to arrest or not.
The permissive wording of the section required police officers to
consider and weigh the
prevailing
circumstances before deciding whether an arrest was necessary. The
enquiry is fact-specific. Police officers must necessarily
display a
measure of flexibility in their approach given that they are
confronted with different facts on each
occasion
that they effect an arrest.
[16]
It is only once the jurisdictional factors are present that the
discretion whether or not to arrest arises.
[17]
[29]
Individual
liberty and human dignity are rights that enjoy constitutional
protection. Arrests constitute a severe impingement on
those rights.
Courts are therefore required to evaluate the evidence of the reasons
for an arrest in some detail. This includes
considering whether the
police officers exercised their discretion
at
all and, if they did, whether it was exercised properly
[18]
so as to justify the arrest.
[19]
The
discretion must be exercised in good faith, rationally and not
arbitrarily and with
the
objective of bringing the subject before court.
[20]
20
[30]
Potgieter’s cross-examination is
particularly revealing. He knew the appellant for more than a year
and knew where he worked
and lived. Despite knowing the house that
the appellant was renting, which was the alleged scene of the crime,
Potgieter did not
take the time to visit. He also did not gather any
other evidence, even though the complaint received suggested that the
theft
had occurred sometime
during
a period
in
excess of four months. In so far as his interaction with the
appellant,
Potgieter
testified as follows:
‘
Mr
Le Roux: Did you ask Mr Barnard for an explanation of the allegations
against him?
Mr Potgieter: I informed
him his rights, that he can have the right to remain silent. So, I
did not ask him for an explanation.
Mr Le Roux: So, before
you decided to arrest him you did not ask him for an explanation?
Mr Potgieter: That is
correct.
Mr Le Roux: So, you were
satisfied that you could arrest him without interviewing him? Mr
Potgieter: That is correct.
Mr Le Roux: And you were
satisfied that you could arrest him without interviewing any of the
neighbours around that property. Is
that so?
Mr Potgieter: That is
correct … The information I had on hand at that time was
enough for me to arrest him.
Mr Le Roux: So, you did
not consider him to be a flight risk because you knew where he
worked, and you knew where he stayed?
Mr Potgieter: That is
correct.
Mr Le Roux: Yet you
decided to arrest him at his place of employment and place him in the
back of a van as you testified?
Mr Potgieter: That is
correct.
Mr Le Roux: You did not
give him the option of attending to the police station in his own
vehicle to meet with you there in respect
of these charges against
him?
Mr Potgieter: No, I did
not.
Mr Le Roux: There was no
reason why you suspected that he would not go to the police station
if you asked him to do so, is that
correct?
Mr Potgieter: I cannot
answer on that one. No, he might have, he could have, I cannot really
say.
Mr Le Roux: There is also
no reason that you would have suspected him not to go to court on the
Monday if you asked him to attend
court out of his free will.
Mr Potgieter: I cannot
tell. I was not sure … dit was absoluut net on hom te
arresteer om hom voor die Hof te bring …
en hy was so gou as
moontlik daarna vrygelaat.
…
Mr Le Roux: So u stem
saam met my dat u geen ondersoekende stappe geneem het nadat u die
verklaring van Mnr Laas gekry het nie?
Mnr Potgieter: Dis
korrek, ja.
…
Mnr Le Roux: Hy sal sê
hy is nooit die keuse gegee om op waarskuwing Maandag in die hof te
verskyn nie.
Mnr Potgieter: Okay daai
Edelagbare gedeelte is deel van die ondersoekbeampte. Ek is die
arresterende beampte, ek ondersoek nie
die saak nie …
[31]
These extracts demonstrate that Potgieter
took little time to decide that an arrest was necessary, probably
even having decided
to arrest the appellant prior to arrival at his
place of work. For reasons unknown, Potgieter appeared to operate on
the basis that he was obliged, as the
‘arresting officer’ to arrest the appellant because,
merely on the strength of
the complaint received from Mr Laas.
[32]
There
was no thought given to the conduct of the appellant at the time, or
the likelihood that he would not appear in court if warned
to do so.
The matter related to
a
landlord / tenant relationship and the charges were premised solely
on the
appellant’s
occupation of the property. There is no suggestion that the appellant
was
a
danger to the police or caused any physical harm at the time.
[21]
In addition, it cannot
be
said that the offence, on its own, was so serious as to justify an
arrest.
[22]
[33]
The
purpose of arrest is to bring the arrestee before court and an arrest
will be
irrational
and unlawful if the arrestor exercises his discretion to arrest for a
purpose not contemplated by law.
[23]
These factors seem to have been ignored, whether due to haste,
ignorance or otherwise. The respondents’ own version adequately
demonstrates these failures, and confirms that the warrantless
arrest, even if based
on
reasonable suspicion, occurred in the absence of any exercise of
discretion on the part of the arresting officer. Counsel for
the
respondents rightly conceded the point during argument.
[34]
The court
a
quo
committed an irregularity by
failing to evaluate this aspect of the enquiry. The approach adopted
ignores the permissive wording
of section 40, the
discretion to arrest and the factors
relevant to the exercise of that discretion. A careful
weighing and consideration of all factors
as part of the exercise of a value judgment
was palpably absent. The approach adopted
resulted in the magistrate arriving at an
outcome which could not reasonably have
been reached. The court
a quo
was
misdirected in its approach, justifying this court’s
interference. The magistrate’s decision must be substituted
with an order that the appellant’s arrest, and subsequent
detention, was unlawful.
Quantum
[35]
The appellant was held in custody for
approximately six hours. He testified briefly about the dirty
conditions he experienced in
the police cells. The water basin was
blocked and there was a despicable smell.
He was also arrested openly in front
of members of staff and the public.
[36]
The
actio
iniuriarum
is
designed to afford personal satisfaction for the impairment of a
personality right, such as dignity. The primary concern is to
provide
a
measure of satisfaction through the payment of money, as a solatium,
and as a form of payback for the injustice suffered. The
unlawful
deprivation of liberty is a serious deprivation of fundamental rights
requiring an appropriate award of damages. But this
is not to suggest
that large amounts are always justified whenever
an
arrest and detention is found to be unlawful. As Holmes J remarked in
Pitt
v Economic Insurance Co Ltd
:
[24]
‘
I
have only to add that the Court must take care to see that its award
is fair to both sides –
it
must give just compensation to the plaintiff, but must not pour our
largesse from the horn
of
plenty at the defendant’s expense.’
[37]
Various
considerations militate against a substantial damages award in this
instance. The detention was for a period of only six
hours during the
afternoon, and the appellant was not made to spend the night in the
cell. While previous decisions provide some
useful indications, the
actual amounts awarded are ultimately influenced by the facts of each
case.
[25]
It is accepted that
the appellant acted reasonably in incurring legal costs to secure his
release. An award for general damages
and the legal costs necessarily
and reasonably incurred in securing the appellant’s release in
the sum of R25 000 appears
to be appropriate in this instance.
Order
[38]
In the result:
1.
Condonation is granted and the appellant’s
appeal is re-instated.
2.
The costs occasioned by the application for
condonation and re-instatement is
to
be paid by the appellant.
3.
The appeal is upheld with costs.
4.
The order of the court
a
quo
is set aside and is replaced with
the following:
“
1.
The first defendant is ordered to pay to the plaintiff the amount of
R25 000,00, as and for general damages.
2.
The first defendant is ordered to pay to
the plaintiff the amount of R3492,00 as
and
for special damages.
3.
The
defendant
is
ordered
to
pay interest on the aforesaid amounts at the legally
prescribed rate, from the date of service
of summons to date of payment.
4.
The
defendant
is
ordered
to
pay
the plaintiff’s
costs of suit, together with interest
calculated thereon at the legally
prescribed rate, from a date fourteen (14) days
after taxation to the date of payment.”
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
VAN
ZYL DJP:
I
agree.
D.
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Appearances:
Counsel
for the Appellants:
Adv S. Sephton
St George’s
Chambers
Makhanda
Instructed
by :
Neville Borman and Botha 22 Hill Street
Makhanda
046 622 7200
Counsel
for the respondent:
Adv V. Madokwe
Oasim Building
Port
Elizabeth
Instructed
by :
Zilwa Attorneys
41 African Street
Makhanda
047 531 0356
Heard:
22 April 2022
Delivered:
3 May 2022
[1]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977
(3) SA 534
(A)
at
549.
[2]
See
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948
(1) SA 839 (AD).
[3]
Uniform
Rule 49(6)
(b)
.
[4]
Act
32 of 1944.
[5]
See
South
African Allied Workers’ Union (in liquidation) v De Klerk NO
1992
(3) SA 1
(A) at 4B.
[6]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC)
at
477E.
[7]
Saloojee
and Another
NNO
v Minister of Community Development
1965
(2) SA 135
(A) at 141C-E.
[8]
South
African Allied Workers’ Union (in liquidation) v De Klerk NO
1992
(3) SA 1
(A) at 4B.
[9]
Minister
of Police v Nojoko
(ECD,
Grahamstown) (unreported) (Case no. CA314/2019).
[10]
Cf
Minister of Police v Nojoko
(ECD,
Grahamstown) (unreported) (Case no. CA314/2019) para 18. The facts
of this matter are distinguishable. Other than an application
for
condonation of non-service, no condonation was sought by the
appellant in
Nojoko
for
non-compliance with rule 50 of the Uniform Rules: para 21.
[11]
See
Sandi
v Minister of Safety and Security
[2017]
ZAECGHC 104 para 21.
[12]
Matebese
v Minister of Police
[2019]
ZAECPEHC 37 para 29.
[13]
See
Minister
of Safety and Security v Sekhoto and Another
(2011)
1 SACR 315
(SCA) para 49;
Barnard
v Minister of Police and Another
2019
(2) SACR 362
(ECG) at para 48: it is for a plaintiff to prove that
the arresting officer exercised his discretion improperly or not at
all,
with respect to the availability of less invasive means than
the warrantless deprivation of the arrestee’s liberty and
freedom
of
movement. See
Accom
and others v The Minister of Police
[2021]
ZAECGHC 112 paras 16-18, from
which
this summary of applicable principles is drawn.
[14]
2016
(2) SACR 540
(CC).
[15]
At
para 41.
[16]
MR
supra
at
para 42.
[17]
Barnard
supra
para
54.
[18]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H;
Sekhoto
supra
paras
6, 28.
[19]
MR
supra
at
para 43, 44.
[20]
Barnard
supra
at
paras 10, 11.
[21]
See
MR
supra
para
52.
[22]
See
Banda
v Minister of Police
[2021]
ZAECGHC 55 at paras 59, 60.
[23]
Minister
of Police v Claasen
[2020]
ZAECGHC 115 para 16;
Barnard
supra
at
para 55
[24]
1957
(3) SA 284
(D) at 287E-F.
[25]
See
Minister
of Safety and Security v Seymour
[2006]
ZASCA 71
;
[2007] 1 All SA 558
(SCA) para
17.