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[2022] ZAECELLC 6
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Kami v Minister of Police and Another (EL1033.2016 ECD 2533.2016) [2022] ZAECELLC 6 (18 February 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
LONDON CIRCUIT LOCAL DIVISION)
Case
No. EL 1033/2016
ECD
2533/2016
In
the matter between:
PHUTHUMILE
KAMI

Plaintiff
and
MINISTER
OF
POLICE

First Defendant
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS

Second Defendant
JUDGMENT
HARTLE J
Introduction:
[1]
The late Mr. Sandile Kami (“the
deceased”) sued the defendants for damages for his claimed
unlawful arrest and detention,
and malicious prosecution, arising
from a rape incident alleged to have been committed on 14 June 2015
at Needs Camp, East London,
and in respect of which he was alleged to
have been involved.
[2]
It is necessary at the outset to outline
the details of this incident and its unique features as was primarily
recorded in the contemporaneous
statement of the complainant, Ms.  P
[....], so as to appreciate the prosecutorial consequences which
flowed from it. The
parties at the present trial agreed that this
statement (Exhibit A) be admitted into evidence on the basis that its
contents were
what had informed the relevant arresting officer
regarding the nature of the offence alleged to have been committed
according to
the complainant, and his claimed justification for the
deceased’s arrest, detention and ensuing prosecution. Ms.  P
[....], by the time of the trial, was deceased.
[3]
The gist of the complaint as appears from
her statement is that on Friday, 13 June 2015, she had proceeded to a
tavern near Needs
Camp where she enjoyed herself with her friends. In
the early hours of the morning, after leaving the tavern, they were
approached
by a group of four males who separated her from her other
female friend and took her to bushes near the police station. She
could
not identify any of the men who had accosted her in this manner
since it was dark and all of them had covered their faces. Three
of
the four took turns raping her and ejaculated inside of her. It is
only the fourth suspect, who she identified in her statement
as
“Sive”, who did not rape her. She related that when it
came time for this person she had referred to as Sive to
have his
turn, he informed the other three suspects that he could not
penetrate her because he knew her and that they were cousins.
On this
basis he also persuaded the other three men to apologize to her for
assailing her. “Sive” then accompanied
her home.
En
route
a vehicle appeared which she
flagged down to ask for help. Contemporaneously with her soliciting
the driver’s assistance
on this basis, “Sive” fled
the scene. The driver of the vehicle took her to her home.
[4]
On her arrival there she promptly reported
the rape to her mother. Her mother also deposed to an affidavit which
was entered into
the record by consent marked Exhibit B. The first
report which the complainant made materially conforms to the
information as was
related in Exhibit A except that the mother did
not say that she was informed by the complainant of the names of any
of the suspects.
[5]
These statements, together with the J88
medical report, which supports the probability that the complainant
had indeed been raped,
were the precursor to the police investigation
and the deceased’s arrest ultimately.
[6]
The plaintiff died after
litis
contestatio
on 13 May 2017 and his
estate was, by the time of the trial, represented by his father, Mr.
Phuthumile Kami, who was formally substituted
in his stead by order
of this court dated 24 October 2017.
[7]
The claim for damages was made up of the
following components:
7.1
unlawful arrest and detention for the period prior to his first court
appearance;
7.2
unlawful detention for the period after the first court appearance,
(for 38 days ensuing after his first court
appearance);
7.3
malicious prosecution;
7.4
costs of defending the criminal case of the deceased;
7.5
damages; and
7.6
contumelia
.
[8]
Sub-items 5 and 6 above make no sense when
read as self-standing claims, neither was it the plaintiff’s
case that something
other than traditional damages were being sought
arising firstly from the deceased’s alleged unlawful arrest and
his detention
as a consequence and, secondly, upon his prosecution on
the rape charge that was ultimately withdrawn. I accordingly read
these
“components” as simply forming part of the main
claims.
[9]
As
for the plaintiff’s claim for special damages for the legal
costs of defending the “failed” prosecution, no
evidence
was led as to the extent of these even though the fact that they were
incurred is suggested from a transcript put up of
the bail hearing
which ensued shortly after the deceased was arraigned on a Schedule 6
charge of contravening section 3 of the
Criminal Law Sexual Offences
and Related Matters Amendment Act, No. 32 of 2007 (“SORMAA”).
As a result, I granted absolution
from the instance in this respect
of this claim at the close of the plaintiff’s case.
[1]
The
parties’ “stated case”:
[2]
[10]
It is common cause that the deceased was
arrested at his house by a police officer, one Sergeant Gcobani
Tyafu, without a warrant
just before midnight on 23 September 2015
and charged, on the face of it, of having contravened the provisions
of section 3 of
the SORMAA. As the evidence will reveal, he was
arrested following a pointing out by the complainant. He was brought
before the
magistrate’s court on 28 September 2015 on which day
the matter was postponed to 2 October 2015. At his initial appearance

he informed the court that he wished to apply for bail and the
prosecutor indicated that she would oppose such an application.
The
court ordered that he remain in custody whilst arrangements were
being made for the bail hearing.
[11]
On
2 October 2015 he was legally represented but the hearing did not
ensue.
[3]
The matter was
postponed ultimately to 5 October 2015 for the formal bail
application during which time the deceased remained in
custody.
[12]
At the end of the hearing bail was refused,
and the deceased remanded to 27 November 2017. On 5 November 2015,
pursuant to his having
been requisitioned to court earlier, the
charge(s) against him were withdrawn.
The pleadings:
[13]
The legality of the arrest was challenged
by the plaintiff in the pleadings on the basis that it had been
without any justification
or excuse and that it had been for a
purpose other than bringing the deceased to trial. It was further
pleaded that the police
had arrested him without ever considering the
supposed explanation he offered (it is not clear what this was
although his warning
statement amounted to a denial of the
allegations put against him, or that he had raped anyone) and/or the
purported lack of identification
or the implication of him by the
complainant of the offence of rape in the matter under investigation.
Also pleaded is that the
police acted without critically considering
an alternative or less traumatic manner of securing his attendance in
court.
[14]
The plaintiff pleaded that the arresting
and investigating officer owed him a duty of care in relation to his
arrest and detention
prior to his first court appearance to assess
the strength of the case against him and to determine whether there
existed a
prima facie
case on this basis; to ensure that he not be detained in custody or
that his detention not be extended when no such
prima
facie
case existed against him; and to
seek “the imposition of bail and (or his) release ON WARNING
(in his favour), as the interests
of justice dictated as such”.
[15]
The
claim for unlawful detention as against the police and the
prosecution after the first court appearance are founded on the
grounds that they acted maliciously and in concert with each other in
opposing the granting of his bail. The malice contended for
was
alleged to be grounded on the basis that no legitimate basis existed
for resisting his release on bail neither was there probable
cause to
prosecute him as there was no
prima
facie
case against him. In addition, so it was alleged, they failed to
place before the court all relevant information in his favour.
[4]
As against the police only, the plaintiff contends that the arresting
and investigating officer acted without considering whether
the
deceased was in fact a flight risk and further that he acted in a
manner that ignored his constitutional rights contrary to
the
presumption of his innocence.
[16]
The
malicious prosecution claim brought against both the police, and by
implication the second defendant,
[5]
is based on the contention that in laying a false charge of rape
against the deceased, neither arm of State had reasonable or probable

cause for doing so; were actuated by malice and/or improper motives;
and had no credible evidence incriminating the deceased in
respect of
the purported offence
The plea:
[17]
In the plea, the first defendant denied
generally that the deceased had been unlawfully arrested by members
of the service in full
view of the public as claimed by the
plaintiff. He pleaded, in amplification of his denial, that the
deceased had been arrested
by a police officer in the presence of his
parents on a reasonable suspicion (on the basis contemplated in
section 40 (1) (b) of
the Criminal Procedure Act, No. 51 of 1977
(“CPA”)), that he had committed a Schedule 1 offence,
namely rape; that
he had been informed of his constitutional rights;
that he was detained in accordance with section 50 of the CPA; that
he had been
charged within 48 hours of his arrest; and that his
further detention after his appearance before the lower court was by
virtue
of orders of court.
[18]
Also
denied in the plea is the allegation that the continued detention of
the deceased after his first appearance in court was unlawful,
the
first defendant setting it straight that the decision to oppose the
deceased’s bail was independently taken by the public

prosecutor after an assessment of the case docket and that his
further detention had been by virtue of orders of court.
[6]
[19]
The second defendant denied the allegation
that the responsible prosecutor had acted in bad faith either in
opposing bail (going
to the unlawful detention claim), or in
instituting the prosecution albeit it was not clearly implicated in
the pleadings in this
respect. This notwithstanding, it pleaded that
at all material times the relevant members of the National
Prosecuting Authority
were acting in good faith and well within their
statutory mandate as provided for in the National Prosecuting
Authority Act, No.
32 of 1998 (“The NPA Act”) both in
respect of the decision to oppose bail and in forming the resolve
that a
prima facie
case existed to justify the prosecution of the deceased and
opposition to bail.
The trial:
[20]
The trial proceeded before me on both
merits and quantum.
[21]
By
agreement between the parties the plaintiff commenced first in order
to meet the evidentiary burden to prove the claim of malicious

prosecution and to give flesh to the complaints of illegality
concerning the deceased’s arrest and detention.
[7]
Both the deceased’s father and his brother, Sivenathi Kami,
testified in support of the plaintiff’s claim.
[22]
In
order to justify the arrest and detention,
[8]
and to refute the allegations of malicious prosecution (such as they
were), the defendants adduced the evidence of Sergeant Tyafu
and the
prosecutor, Ms. Mumtuz Shebudin. It was not in contention that she
initially entered the case into the prosecutorial system
on the basis
that a
prima
facie
case existed against the deceased. Quite ostensibly her decision in
this respect also set the tone for the prosecution of the offence
as
a Schedule 6 one for bail purposes.
[23]
Documentary evidence, including copies from
the relevant police docket and a transcript of the bail proceedings
(Exhibit C) concerning
the deceased were also entered into evidence
by consent on the basis that these documents are what they purport to
be.
[24]
It
is apparent from the manner in which the plaintiff conducted his case
and from the closing submissions at the end of the trial
that there
was less of a focus on any profound illegalities in the deceased’s
arrest or detention.
[9]
Instead,
pivotal to the success of the plaintiff’s claim was the
suggestion of the absence of a
prima
facie
case against the deceased. The thread of the plaintiff’s case
was that there had been doubt from the outset concerning the
identity
of the fourth suspect who had been involved in the rape incident and
that the complainant’s pointing out of the
deceased as that
suspect (especially in the peculiar circumstances in which the
plaintiff claimed this had happened, and which
I shortly detail)
detracted from any reasonable suspicion. The plaintiff further raised
a technical point, it being contended that
even assuming a reasonable
suspicion that the deceased was likely the fourth suspect, his
described involvement in the rape incident
could not be brought
within the ambit of a Schedule 1 offence. It appeared to be accepted
that the existence or not of a
prima
facie
case
was also foundational to the premise whether there was reasonable and
probable cause for the prosecution, more or less by the
same
objective standard of reasoning concerning the lawfulness of the
arrest.
The evidence:
[25]
The
deceased’s father and his older brother, Sivenathi Kami,
testified on behalf of the plaintiff as to the circumstances
of the
arrest, both having been present and in the company of the deceased
at that moment. They also illuminated the personal circumstances
of
the deceased especially as these pertained to his status at the time
of arrest (and when the offence of rape was said to have
been
committed), which in essence is that he had been released from a
correctional centre at which he had been serving a sentence
for a
murder conviction and placed on parole or under community corrections
subject to certain conditions that
inter
alia
curtailed movement beyond his home at night.
[10]
Sivenathi Kami also gave a context to the circumstance which led to
the deceased’s detention being extended beyond his first

appearance at court until the charges were withdrawn against him.
Indeed, both he and the deceased testified at the bail hearing
in
support of the latter’s formal application as is evident from
the bail transcript entered into evidence by consent between
the
parties, marked Exhibit C.
[26]
Regarding
those circumstances which dictated that the deceased remain in
detention throughout this period, it appeared to have been
common
cause at the bail hearing, or at least accepted by all the parties
concerned including the deceased’s legal representative,
that
the deceased had been arraigned on a Schedule 6 offence at the time
and bore the onus to prove that there existed exceptional

circumstances which permitted his release in the interest of
justice.
[11]
Sergeant Tyafu,
in his testimony in the current trial, confirmed that he had placed
before the magistrate in the bail hearing all
of the grounds on which
he had based his recommendation to oppose bail. After having heard
the evidence and the submissions made
thereanent, the presiding
magistrate refused the application. As a result, the deceased’s
detention had continued until 5
November 2015 on which day he was
requisitioned to court for the charge(s) against him to be
provisionally withdrawn.
[27]
There
is some dispute regarding the basis or reason for the withdrawal. The
defendants submit that it was provisional and for further

investigation (which observation accords with what the magistrate
endorsed on the charge sheet),
[12]
whereas the Plaintiff maintains that the case against the deceased
was “dismissed” by reason that the State had entertained

doubt about his identification as the fourth suspect. In any event
this resulted in him having been released from custody on that
same
day and he was not charged again before he died.
[13]
[28]
The
complainant made her statement to the police on 15 June 2015.
Sergeant Tyafu, promoted to this higher rank by the time of the

trial, testified that he was assigned the cases of both the
complainant and her friend (who it seems had also been raped)
[14]
and took charge of the investigations. On reading the complainant’s
statement he claims that he was alive to the fact that
the deceased
was not implicated as having himself raped the complainant, but in
his view, the latter’s criminal liability
was based on the
deceased’s own attempt to have raped her, or on the separate
basis that he had formed part of the group
of persons who had in fact
raped her. By reason thereof, so he explained, he had made up his
mind that the deceased had committed
an offence in terms of section
3, alternatively section 55, of the SORMAA.
[29]
He conducted further investigations into
the matter for a period of about three months. On the night of the
deceased’s arrest,
a resolve had been formed by the Family
Violence Child Protection and Sexual Offences Unit to conduct a raid
for suspects in pending
cases. The complainant’s case was one
such matter.
[30]
He and other members went to her home where
he consulted with her regarding the identity and address of the
suspect referred to
in her statement as “Sive”. The
complainant led him to the deceased’s home in the company of
the other members.
Upon arrival there he left her with the other
members and went into the yard to enquire about the whereabouts of
“Sive”.
The deceased’s father took him to the house
in which Sivenathi Kami was sleeping.
[31]
He entered the house without the
complainant. Sivenathi, the deceased’s brother, identified
himself as “Sive”
whereupon he handcuffed him. At this
point he went outside to fetch the complainant to identify the
suspect.
[32]
When she entered Sive’s home and saw
the deceased (who had coincidentally made an appearance in the
company of his girlfriend),
she spontaneously cried out and
independently pointed him out as the suspect. She explained to
Sergeant Tyafu (who had of his own
accord handcuffed Sivenathi Kami
because he had answered to the name of Sive) that she had mistaken
the two brother’s names
and confused the one with the other
but, on seeing their faces, she was well able to recognize and point
out the deceased, Sandile,
as being the suspect. Sivenathi Kami was
instantly released, and the deceased arrested instead. He was
handcuffed and according
to Sergeant Tyafu informed of the reason for
his arrest and read his rights before being taken to the police
vehicles standing
by.
[33]
He detained the deceased at the police
station only much later at about 5h15 but explained that this was
because he and the other
members had continued to engage in the
raiding of suspects after the deceased’s arrest until early
morning.
[34]
According to him he complied with procedure
and the expected protocols of arrest at the police station.
[35]
Asked
why he had waited more than 48 hours to bring the deceased before
court, he pointed out that the prescribed period had elapsed
at 23h40
on Friday, 25 September 2015, which was, by then, well outside of
court hours. As a result, he could only bring the deceased
before
court when he made his first appearance at the magistrate’s
court on 28 September 2015.
[15]
[36]
Ms.
Shebudin is a regional court prosecutor. She verified that she was
the person who had made the decision to prosecute the deceased.
She
explained that the docket had been brought to her at first
appearance. She perused the information in it and found that there

was a
prima
facie
case resulting in the matter being enrolled for first appearance as a
Schedule 6 offence. In her opinion the facts of the matter
convinced
her that the State was dealing with a Schedule 6 offence because it
was, as she colloquially referred to it, a “gang
rape”.
[16]
She also made the decision that the bail application should be
opposed by the prosecution.
[37]
She clarified that her decision to oppose
bail was based on the prevalence of rape in the community; the fact
that the deceased
had been released on parole for murder, an offence
with an element of violence [the charge against the deceased
similarly involved
an element of violence]; he had ostensibly not
complied with his parole conditions; and a reasonable apprehension
existed that
he would not comply with his bail conditions if granted
bail.
[38]
She also expressed the view, when drawn in
this respect, that she believed the later decision by the State to
withdraw the charge(s)
against the deceased to have been wrong
because the same
prima facie
case against the deceased remained in existence even at that time.
[39]
It is evident from the bail transcript that
the court was, firstly, informed by Sergeant Tyafu of the unexpected
turn by the complainant
in identifying the deceased as the fourth
suspect despite having named “Sive” as the responsible
person in her police
affidavit. He also disclosed to the bail court
that the deceased had not himself raped the complainant. The
magistrate, not surprisingly
in my view, was quite unmoved by the
last detail and in fact had reason to admonish the deceased’s
legal representative for
constantly alluding to the deceased as
having “intervened” in the rape incident or on behalf of
the complainant whereas
it was plain to the court that the deceased
had, at the end of the complainant’s ordeal, simply elected to
not rape her.
This claimed glitch, or vaunted weakness in the State’s
case, evidently did not impress the magistrate at all. Instead, he

expressed the firm view that the deceased’s role was in no way
minimized in all the circumstances, neither did the fact that
he had
declared he would not rape the complainant after all detract from his
separate culpability and involvement in the unfortunate
debacle.
The arrest:
[40]
Section 40 (1)(b) of the CPA provides that:
“
a
peace officer may without warrant arrest any person –
(a)
…
(b)
whom he reasonably suspects of having
committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful
custody.”
[41]
The
requisite jurisdictional facts which must be in existence before the
jurisdiction whether or not to arrest a suspect without
a warrant
arises are: (1) the arrestor must be a peace officer; (2) the peace
officer must entertain a suspicion; (3) the suspicion
must be that
the suspect committed an offence referred to in Schedule 1; and (4)
the suspicion must rest on reasonable grounds.
[17]
[42]
It is not in contention that Sergeant Tyafu
was a police officer within the meaning and contemplation of section
1 of the CPA and
that he had purported to harbor a suspicion that the
deceased committed, if not the offence of rape, then a contravention
of section
55 of the SORMAA.
[43]
Whilst not in issue that the offence of
rape is an offence within Schedule 1 of the CPA, it was contended on
behalf of the plaintiff
that since the fourth suspect had not in fact
raped the complainant according to her, his arrest could not for this
reason have
been brought within the purview of section 40 (1) (b) of
the CPA. Since the statutory offence of contravening section 55 of
the
SORMAA is not listed in Schedule 1, so it was submitted, the
first defendant could never succeed in justifying a warrantless
arrest
on the basis of such a charge.
[44]
It is necessary in dealing with the nature
of the criminal case within Sergeant Tyafu’s contemplation, to
advert to the provisions
of section 3 of the SORMAA which provide
that:
“
3.
Rape.
-Any person ("A") who unlawfully and
intentionally commits an act of sexual penetration with a complainant
("B"),
without the consent of B, is guilty of the offence
of rape.”
[45]
It
was an accepted fact that the fourth suspect had not himself
committed an act of sexual penetration with the complainant, but
that
is not the end of the matter because the facts as related to Sergeant
Tyafu by her suggested that the fourth suspect had committed
the
offence of either “attempted rape” (he explained his
understanding that the deceased would have raped her and had
every
intention to do so, but waited right until the end when he
co-incidentally recognized who she was and then at last indicated
his
refusal to sexually penetrate her), or he had conspired with the
three other suspects to rape her, or had acted as an accomplice
to
them in all the circumstances.
[18]
[46]
Section 55 of SORMAA of provides as
follows:
“
55.
Attempt,
conspiracy,
incitement
or
inducing
another
person
to
commit
sexual
offence.
-Any person who-
(
a
)
attempts;
(
b
)
conspires with any other person; or
(
c
)
aids, abets, induces, incites, instigates, instructs, commands,
counsels or procures another person, to
commit a sexual offence in
terms of this Act, is guilty of an offence and may be liable on
conviction to the punishment to which
a person convicted of actually
committing that offence would be liable.”
[47]
It is also necessary to advert to the list
of offences in Schedule 1, or at least those that are relevant for
present purposes.
These are set out in the list of offences
applicable to arrests by police officer under section 40, and private
persons acting
under the authority of section 42, of the CPA as
follows:
“
SCHEDULE
1
…
Rape
or compelled rape as contemplated
in
sections 3
and
4
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
, respectively.
Sexual
assault, compelled sexual assault or compelled self-sexual assault as
contemplated in
section 5
,
6
or
7
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, respectively.
[19]
Any
sexual offence against a child or a person who is mentally disabled
as contemplated in
Part 2
of Chapter 3 or the whole
of Chapter 4 of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
, respectively.
Trafficking
in persons as provided for in
section 4
and involvement in
the offence as provided for in
section 10
of the Prevention
and Combating of Trafficking in Persons Act, 2013.
Bestiality
as contemplated in
section 13
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
.
[20]
...
Any
offence, … the punishment wherefor may be a period of
imprisonment exceeding six months without the option of a fine.
…
Any
conspiracy, incitement or attempt to commit any offence referred to
in this Schedule.
…”
[48]
I
have highlighted above the portions that were added to Schedule 1 by
section 68
of the SORMAA or the later amendment act.
[21]
It is so that the offence of
section 55
itself is not listed in the
Schedule,
[22]
but a
self-standing offence of conspiring, incitement or attempting to
commit any offence referred to in the Schedule itself is
also one of
the offences contemplated by the legislature (with reference to
sections 40
and
42
of the CPA) where an arrest without a warrant
might be justified in my view by the mere severity of the principal
offence and the
serious punishment that a contravention under
section
55
of the SORMAA would attract and which would have, before the
amendment by the SORMAA, have comfortably resorted under the list of

serious offences at play.
[23]
[49]
If
one has regard to the end portion of
section 55
, the legislature
clearly intends that the commission of an offence under
section 55
ought, on conviction, to result in a punishment “to which a
person convicted of actually committing that offence would be

liable”. Whilst it seems to have been clarified by our courts
that such a conviction would not attract a life sentence in
a
so-called gang rape scenario,
[24]
it is nonetheless an offence that would certainly attract punishment
for a period of imprisonment exceeding six months without
the option
of a fine, as is also contemplated in Schedule 1 above.
[50]
I
point out further that there is
a
self-standing item in the Schedule dealing with a sexual offence
against a child, who under SORMAA is one under the age of 18
years.
The complainant in
casu
was 17 years. No doubt the gravity of such offences for purposes of
inclusion under Schedule 1 lies in the fact of a child’s

vulnerability. “Sexual offence” is defined in the SORMAA
as “
any
offence in terms of Chapters 2, 3 and 4
and
section 55
of this Act
and any offence referred
to
in
Chapter
2
of
the
Prevention
and
Combating
of
Trafficking
in
Persons
Act,
2013,
which
was
committed for sexual purposes”.
[25]
Insofar
as the complainant was a child at the time of the offence the
deceased was suspected to have committed, the relied upon

contravention of section 55 of the SORMAA, whether on the basis of an
attempt, as part of a conspiracy, or as an accomplice to
the other
perpetrators, would also on its own have brought the offence within
the ambit of Schedule 1 of the CPA.
[26]
[51]
Whilst
the statutory offence of contravening section 55 of the SORMAA does
not feature in its own right as an item under Schedule,
it would be
absurd in my view to elevate and include as a category of serious
offences the item concerning sexual offences committed
against a
child or a person who is mentally disabled (assuming for the moment
the legislature intended to confine the offences
contemplated in this
category to
only
those listed in part 2 of Chapter 3 and the whole of Chapter 4 of the
SORMAA for purposes of this item),
[27]
at the expense of an offence involving an attempt to commit rape, or
a conspiracy to rape, or of being an accomplice to a rape,
now
charged under section 55 of the SORMAA, because the latter are
obviously more serious offences.
[52]
In the result I conclude that the offence
that Sergeant Tyafu reasonably suspected the deceased to have
committed, whether construed
as one of attempted rape, acting as an
accomplice, or pursuant to a conspiracy under the alternative
statutory contravention of
section 55 of the SORMAA, properly resorts
under Schedule 1.
[53]
I proceed now to the question whether
Sergeant Tyafu’s suspicion was reasonable.
[54]
There
was not much in dispute between the parties concerning the flow of
the arrest save in respect of two important features which
I am
inclined to resolve in favour of the defendants. Both the deceased’s
father and his brother sought to create the impression
that the
complainant had at first pointed Sivenathi Kami out as the suspect
and that Sergeant Tyafu had arrested him on this basis.
They also
sought to impress upon the court her supposed about turn thereafter
as if to suggest that she entertained doubt who the
fourth suspect
was, dithering between a choice of Sivenathi and the deceased.
Sergeant Tyafu however maintained a version that
the complainant was
only invited in after Sivenathi Kami had been handcuffed in her
absence and without her involvement in this
“blapse” on
his part. What emerged further from his testimony is that he was
surprised at her reaction when she saw
the deceased. She thus pointed
to one suspect only and was not confused about the identity of the
fourth suspect. She also without
hesitation explained her blunder to
Sergeant Tyafu which only concerned the name by which she had
mistakenly called this suspect
in her statement. Not only was this
explanation entirely plausible in the whole scheme of things, but
Sergeant Tyafu also happened
to mention this contemporaneously to Ms.
Shebudin. This came forth from her account of the premise that was
provided to her by
the time she made her decision to prosecute and
oppose bail, so the likelihood of this significant detail being an
after-the-fact
fabrication on Sergeant Tyafu’s part can in my
view be safely ruled out.
[28]
It is also significant in my view that before the present suit was on
the horizon both brothers at the bail hearing testified that
it was
only after the complainant was brought in from outside to identify a
suspect that the deceased was pointed out as the person
present
during her rape ordeal, this after Sivenathi Kami had first been
handcuffed by Sergeant Tyafu in her absence. Their testimony
in that
forum was further consistent with the first defendant’s version
in the present trial that she only pointed out the
deceased and that
she did so promptly, independently, and spontaneously. The deceased
added in his testimony given at the bail
hearing that the complainant
was crying when she identified him.
[55]
The
test whether a suspicion is reasonably entertained within the meaning
of section 40 (1)(b) of the CPA is objective.
[29]
In this instance, would a reasonable man in the arresting officer’s
position and possessed of the same information have considered
that
there were good and sufficient grounds for suspecting that the
deceased had committed rape, or at least a competent verdict
in this
instance, falling under the mantle of conspiracy, incitement, or
attempt as described in Schedule 1.
[30]
[56]
In
Mabona and Another v Minister of Law and Order and Others
[31]
the court expounded upon the expectation of such a reasonable man
effecting an arrest without a warrant.
“
It seems to me
that in evaluating his information a reasonable man would bear in
mind that the section authorizes drastic police
action. It authorizes
an arrest on the strength of a suspicion and without the need to
swear out a warrant, i.e. something which
otherwise would be an
invasion of private rights and personal liberty.
The reasonable
man will therefore analyze and assess the quality of the information
at his disposal critically, and he will not
accept it lightly 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.”
(Emphasis added)
[57]
The court in Mabona went on to state what
the threshold of such an examination is:
“
This is not to say
that the information at his disposal must be of a 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.”
[58]
Indeed,
in Duncan v Minister of Law and Order
[32]
the court found that the word “suspicion” implied an
absence of certainty or adequate proof. In this instance the
uncertainty claimed by the plaintiff had less to do with the
commission of a Schedule 1 offence than the identity of the fourth

suspect.
[59]
A close examination of the conduct of
Sergeant Tyafu prior to effecting the arrest reveals that he firstly
relied on the information
contained in the docket. He was possessed
of,
inter alia
,
the complainant’s statement, the first report to her mother,
the J88 medical report confirming the rape, a name by which
the
suspect was known to the complainant (“Sive”),
information that he gleaned from the further interview with her

immediately prior to effecting the arrest and her input in pointing
out “Sive’s” address that was known to her.
At the
moment of arrest there was more significantly the spontaneous and
independent pointing out by her of the deceased as the
fourth
suspect. He also observed her reaction when it dawned on her that the
deceased was the person, not who had raped her, but
who had to her
mind “helped” her to bring the traumatic ordeal to an
end. There was also her explanation to him at
the scene of the arrest
which would similarly have assured him who the relevant suspect was
and contributed to his decision to
arrest the deceased.
[60]
I accept Sergeant Tyafu’s account
that the complainant explained right then and there that she had made
a mistake with the
name “Sive” mentioned in her
statement. She was quite clear however which of the two brothers had
been involved in
the rape incident as the fourth suspect.
[61]
It was the crux of of the plaintiff’s
case that the pointing out of the deceased by the complainant under
the peculiar circumstances
in which it happened was not sufficient to
amount to a reasonable suspicion. It was additionally suggested that
Sergeant Tyafu
ought to have undertaken further investigations before
effecting the arrest pursuant to the pointing out given the twist
that played
itself out in the end.
[62]
Although the mistake in isolation (on the
defendants’ version which I accept) might be a cause to reflect
that Sergeant Tyafu’s
suspicion fell below par, the pointing
out by the complainant of the deceased, albeit of a person not named
in her statement, when
viewed cumulatively with the other information
that was before Sergeant Tyafu prior to the arrest and at his
disposal after his
own “blapse” was pointed out to him,
is to my mind sufficient to sustain a reasonable suspicion.
[63]
It was not as if the complainant at that
moment or even before had doubted the identity of the fourth suspect.
She had simply called
him by the wrong name in her statement, but
immediately brought this to Sergeant Tyafu’s attention when she
noticed that
he had acted on her error by putting the handcuffs on
the wrong brother. There would in my view have been nothing further
to have
investigated beyond her explanation and clarification of who
the fourth suspect was to her.
[64]
Sergeant Tyafu added that he had also been
assuaged that the explanation of her error was genuine when he
noticed her emotional
reaction upon seeing the deceased. He further
explained in his testimony that he had tested the complainant’s
opportunity
to identity “Sive” after leaving the crime
scene in this suspect’s company. In this respect she had
related to
him that she had seen him in the lights of the car that
she had flagged down to assist her before he fled the scene. He
mentioned
this opportunity that she had to see the fourth suspect
contemporaneously at the bail hearing and also repeated this to Ms.
Shebudin
who was equally assured that the complainant was then
certain of the identity of the fourth suspect although she had
unfortunately
called this person by the wrong brother’s name.
[65]
In all the circumstances, therefore, I am
satisfied that Sergeant Tyafu entertained the requisite reasonable
suspicion and that
the arrest was thus lawful.
[66]
Of
course, the matter does not end there. Once the required
jurisdictional facts are present the discretion whether or not to
arrest
arises.
[33]
Although
section 40 (1) (b) of the CPA gives peace officers extraordinary
powers of arrest and such powers necessarily avail in
the fight
against crime, it must be sensitively counterbalanced against the
arrested person’s constitutional rights of personal
liberty and
dignity. A court will therefore carefully scrutinize in each case
whether the infringement of these rights is legally
in order.
[34]
[67]
The purpose of an
arrest is to bring a suspect before court. If the arrest is effected
for a purpose other than this, or for another
purpose which does not
fall within the jurisdictional framework of section 40, the
arrest will be unlawful for that reason
alone.
[68]
The evidence
in
casu
to my mind certainly falls short
of demonstrating that Sergeant Tyafu had any sinister agenda or
objective other than bringing
the deceased to justice. The suggestion
that because the matter had come a long way since he took over the
docket and therefore,
he did not
have to
arrest the deceased, is negated by the serious nature of the offence
against the latter. In this regard peace officers are entitled
to
exercise their discretion as they see fit, provided that they stay
within the bounds of good faith and rationality. This 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.”
[35]
[69]
In a rationality enquiry, the critical
enquiry, as suggested by Harms JA in Sekhoto, should not be focused
on the manner of the
arrest but rather the rationale for the arrest.
He made this clear when he remarked upon the limited role of the
peace officer
in the process of making an arrest as follows:
“
While the purpose
of arrest is to bring the suspect to trial the arrestor has a limited
role in that process. He or she is not called
upon to determine
whether the suspect ought to be detained pending a trial. That is the
role of the court (or, in some cases a
senior officer). The purpose
of the arrest is no more than to bring the suspect before the court
(or the senior officer) so as
to enable that role to be performed. It
seems to me to follow that the enquiry to be made by the peace
officer is not how best
to bring the suspect to trial: the enquiry is
only whether the case is one in which that decision ought properly to
be made by
a court (or the senior officer). Whether his decision on
that question is rational naturally depends upon the particular facts
but it is clear that in cases of serious crime – and those
listed in Schedule 1 are serious, not only because the Legislature

thought so – a peace officer could seldom be criticized for
arresting a suspect for that purpose.”
[36]
[70]
As
in Sekhoto
,
the opinion was formed by Sergeant Tyafu in the present matter
concerning a serious offence and one in respect of which the
legislature
has deemed it proportional to arrest without a warrant.
[37]
Further, the fact that he
self-evidently assumed it to be
his
duty
to carry out the arrest in order to cause the deceased to appear in
court does not in any way detract from the situation. His motive

makes no difference to the enquiry, given my finding above that the
arrest was rationally justifiable.
[38]
The
claimed illegalities in the arrest:
[71]
The plaintiff’s case was further that
the deceased was not informed of the reason for his arrest and that
he was not read
his rights during the arrest. The deceased’s
brother and father testified that he was handcuffed and taken to the
police
vehicles outside, but nothing was said as to the reason for
his arrest, at least not in their presence, neither did they
personally
hear his rights being read to him. Sergeant Tyafu’s
evidence on the other hand was that the deceased had been arrested in

line with the protocols customarily followed. Upon arrest, according
to him, he informed the deceased that he was being arrested
and of
the reason therefor. He also claimed to have read him his rights.
This same testimony was given by Sergeant Tyafu at the
bail hearing,
and it aroused no challenge. I add that the deceased himself had
testified at that hearing quite co-incidentally
that the arresting
officer had informed him of the date of the alleged offence, and it
had also been suggested to him that he should
inform the police of
the names of these other people who the deceased was said to have
“stopped” from raping the complainant,
this suggesting
that there was indeed a conversation about the offence rather than
“nothing” having been said.
[72]
The reason for the arrest and the
deceased’s rights were further ostensibly read to him at the
police station as is evinced
by Exhibits “I” and “J”
which were entered into evidence during the trial. These exhibits
constitute the
statutory notice of rights form and warning statement
respectively. They were not challenged by the plaintiff as presenting
an
unfair reflection of what had taken place and I accept accordingly
that proper deference was accorded to the deceased as a suspect.
It
is entirely implausible in my opinion that Sergeant Tyafu would not
have been mindful of the necessary respect to be accorded
the
deceased as a suspect when he arrested him, more especially given his
own error in the scenario before the complainant confirmed
who in her
view the fourth suspect was.
The
tenor of the evidence:
[73]
As an important aside it needs to be
clarified that the evidence for the plaintiff was unreliable in the
whole scheme of things.
Both the deceased’s father and his
brother when they testified presented a biased picture of what went
down at the arrest
(which clearly contradicted the evidence presented
at the bail hearing by both Sivenathi Kami and the deceased in this
respect)
and sought to promote an image of the deceased as an
innocent victim and a law-abiding citizen who honoured his bail
conditions.
Mr. Kami senior, for example, insisted that he never let
the deceased out of his sight and was careful to ensure that he met
his
parole conditions, but the careful hawk eye oversight he claims
to have maintained over him, even at night while his sons slept
in
the nearby cottage, seems to me to be entirely implausible. He was
most reluctant to make the very realistic concession that
he could
not account for the whereabouts of the deceased 24-7. He also gilded
the lily somewhat concerning adverse comments Sergeant
Tyafu
supposedly made at the time of arrest, for example branding his son
as an animal, which neither of his sons mentioned in
their testimony
at any point. Additionally, he insisted that the case against the
deceased had been dismissed (whereas on the face
of the charge sheet
and docket this was not the case) and was not prepared to admit of
any mistake in this respect. He and Sivenathi
Kami also
co-incidentally both honed in on the complainant’s so-called
about-turn after supposedly first pointing Sivenathi
out as the
suspect. Since this aspect in their oral evidence at the civil trial
was in conflict with Sivenathi and the deceased’s
evidence
given at the bail hearing, this unfortunately suggests an obvious
conspiracy between the plaintiff’s witnesses to
undermine the
complainant’s identification of the fourth suspect.
[74]
Sergeant Tyafu’s evidence on the
other hand was logical, conforms to record keeping, was corroborated
by that of Ms. Shebudin,
consistent with his prior testimony given at
the bail hearing and indeed with that of the deceased and Sivenathi
in respect of
the material issues for present purposes, and is
entirely plausible. He also readily made concessions where necessary.
I am accordingly
satisfied that the defendants’ version should
prevail where in conflict with that of the plaintiff’s.
[75]
Having said so I accept that the deceased
was read his rights at the time of his arrest and that the procedure
for the arrest was
also lawful.
The detention:
[76]
The next issue identified by the parties in
the case management processes for determination by the court is
whether the police opposed
bail. It seems to have been accepted
during the trial that Sergeant Tyafu indeed
recommended
that bail be opposed and even if he was
not prepared to make the concession that the deceased was not a
necessarily a flight risk,
he was clearly guided by the serious
nature of the offence for which the deceased had been arrested; that
he was a parolee and
subject to community corrections and that the
circumstances of the case warranted that he be detained post arrest.
Objectively
no fault can be found in this stance adopted by him once
it is accepted that a
prima facie
case could be made out against the deceased and that the essential
facts at his and the State’s disposal brought the charge
within
the ambit of Schedule 6 of the CPA. For the rest, at the screening of
the case, Ms. Shebudin made the formal decision to
oppose bail as she
was obliged to after Sergeant Tyafu had placed the docket before her
to decide on the further conduct of the
matter.
[77]
The pleaded basis for the deceased’s
initial and ensuing detention being wrongful and unlawful was, as
indicated above, premised
on the basis of there having been no
prima
facie
evidence against the deceased,
and the State and Sergeant Tyafu’s supposed failure to have
placed before the court all relevant
information in his favour.
[78]
Section 12(1)(a) of the Constitution
guarantees the right of security and freedom of a person, which
includes the right ‘not
to be deprived of freedom arbitrarily
and without just cause’.
[79]
Section 35(1) of the Constitution provides
that anyone who is arrested on the premise of having committing an
offence has the right,
amongst others—
“
(d)
to be brought before a court as soon as reasonably possibly, but not
later than—
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the
expiry of the 48 hours, if the 48 hours expires outside ordinary
court hours or on a day
that is not an ordinary court day;
(e)
at the first court appearance after being arrested, to be charged or
to be
informed of the reasons for the detention to continue, or to be
released; and
(f)
to be released from detention if the interest of justice permit,
subject
to reasonable conditions.
[39]
[80]
The qualification that the interests of
justice should permit the suspect’s release from detention is
an important one, particularly
in the present scenario.
[81]
As outlined in Sekhoto already referred to
above:
“
While the purpose
of arrest is to bring the suspect to trial, the arrestor has a
limited role in that process. He or she is not
called upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or in some cases
a senior officer).
The purpose of the arrest is no more than to bring the suspect before
the court (or the senior officer) so as
to enable that role to be
performed.”
[82]
In
casu
Sergeant Tyafu did exactly that. He brought the deceased before the
court to determine his fate from that moment on.
[83]
The discretion of a court to order the
release or further detention of the suspect is subject to
wide-ranging, and in some cases
stringent, statutory directions.
Indeed, in some cases the suspect must be detained pending his trial,
in the absence of special
circumstances.
[84]
The CPA requires a judicial evaluation to
determine whether it is in the interests of justice to grant bail. In
certain instances,
such as in the present case, a special onus rests
on a suspect before bail may be granted, and he has a duty to
disclose certain
facts, including prior convictions, to the court.
[85]
Concerning
the necessary trajectory that followed in respect of the bail hearing
concerning the deceased, and the not unexpected
outcome based on the
objectively justifiable
prima
facie
case that existed against him, it is apposite to refer to the
dictum
in S v Dlamini, S v Dladla and Others; S v Joubert; S v
Schietekat,
[40]
in which bail
proceedings were characterized as follows:
“
[11]
Furthermore, a bail hearing is a unique judicial function. It is
obvious that the peculiar requirements of bail as an interlocutory

and inherently urgent step were kept in mind when the statute was
drafted. Although it is intended to be a formal court procedure, it

is considerably less formal than a trial. Thus the evidentiary
material proffered need not comply with the strict rules of oral
or
written evidence. Also, although bail, like the trial, is essentially
adversarial, the inquisitorial powers of the presiding
officer are
greater. An important point to note here about bail proceedings is so
self evident that it is often overlooked. It
is that there is a
fundamental difference between the objective of bail proceedings and
that of the trial. In a bail application
the enquiry is not really
concerned with the question of guilt. That is the task of the trial
court. The court hearing the bail
application is concerned with the
question of possible guilt only to the extent that it may bear on
where the interests of justice
lie in regard to bail. The focus at
the bail stage is to decide whether the interests of justice permit
the release of the accused
pending trial; and that entails in the
main protecting the investigation and prosecution of the case against
hindrance.”
[86]
Whilst
there is no absolute duty resting on a prosecutor to oppose bail in
all cases, he/she has a public duty to oppose bail in
appropriate
cases where the interests of justice so require.
[41]
Schedule 5 and 6 offences contemplated two scenarios where the court
must order that the accused be detained in custody until dealt
with
in accordance with the law, unless the accused, after having been
given a reasonable opportunity to do so, satisfies the court
that the
interest of justice permit his release.
[42]
[87]
Whenever
section 60 (11) is applicable, there can be no question of an
inquisitorial procedure and the issue of bail has to be decided
on
the question whether the accused has discharged the burden of proof
placed on him by section 60 (11).
[43]
It is for the accused to put his/her case forward first and for the
State to answer it. There is no onus on the State to disprove
the
existence of exceptional circumstances.
[44]
[88]
The
import of this all is that an accused person who alleges innocence
and claims that he will ultimately be acquitted, must prove
his
future acquittal on a balance of probability.
[45]
[89]
The plaintiff’s case for unlawful
detention is that the police and the prosecutors breached the duty of
care that they owed
the deceased by failing to place all relevant
information before the court. However, the two features of the matter
that would
supposedly have weakened the case for the state and
improved the deceased’s chances of a future acquittal on the
requisite
standard of proof were not withheld from the bail court. I
have dealt with this above. The mistake in the complainant having
given
the wrong name to the fourth suspect in her police statement
was indeed explained to the prosecutor and placed on record by
Sergeant
Tyafu when he testified at the bail hearing. It was further
never downplayed that the fourth suspect had not sexually penetrated

the complainant himself, but still the gravity of his involvement
loomed large and could not have promoted his chances of a future

acquittal on the basis of his objective attempt to have raped, or
involvement in a conspiracy to rape, or assisting in the whole
sordid
debacle as an accomplice, even assuming that he had, as the deceased
legal representative perceived the situation to have
been instead,
provided some form of succor to the complainant.
[90]
It
is trite law that the strength of the State’s case is a factor
that a court must take into account when determining exceptional

circumstances, and that the Constitution imposes a duty on the State
not to perform any act that infringes the entrenched right
to
freedom.
[46]
[91]
In
Mahlangu and Another v Minister of Police,
[47]
the court held that although the lawfulness or otherwise of a court
order for an arrested person’s detention depends primarily
on
the conduct of the prosecutor and/or the magistrate, the police can
incur liability for damages for detained person being denied
their
freedom after their appearance before a court, notwithstanding the
court having ordered such detention.
[48]
[92]
In
Mahlangu it also held that the police may be liable if through some
wrongful conduct, independent of the arrest, the police intended
to
influence the prosecutorial decision to request and/or the court’s
discretion to direct the further detention of the arrested
person,
where, but for the unlawful conduct of the police the further
detention would not have been ordered by the court. In that
case, the
court said, the police would foresee, as inevitable, at the time of
such wrongful conduct, that the detained person would
be deprived of
his liberty.
[49]
[93]
In
Woji v Minister of Police
[50]
Mr. Woji was lawfully arrested on a charge of robbery and was
remanded in custody at his first court appearance. At the bail
hearing
conducted shortly thereafter the investigating officer
testified dishonestly that Mr. Woji was clearly identifiable on a
video
of the robbery which he had viewed. It was on the basis of this
evidence that bail was refused. Mr. Woji was detained until he
prosecutor viewed the footage and saw that Mr. Woji could not be
identified as one of the robbers, at which point he withdrew the

charge. In the action that ensued for damages for wrongful detention
the court held, on the facts and evidence before it, that
the
investigating officer subjectively foresaw that his evidence would
lead to the refusal of bail, and he proceeded recklessly
to assert
that it was Mr. Woji on the video footage of the commission of the
crime.
[94]
This case is entirely distinguishable on
the merits. Sergeant Tyafu when called to give evidence at the bail
hearing, placed before
the bail court all the information in his
possession, including the issue of the mix up of the names of the
deceased and his brother
and the anomaly that the fourth suspect had
himself not raped the complainant. In my view there can be no
suggestion that he misrepresented
or withheld facts from the
prosecution on the strength of which a decision to release the
deceased could have been taken.
[95]
The
further detention of the deceased pending the trial was at the
discretion of the magistrate who in my view provided good reasons
why
the deceased had failed to meet the onus on him to satisfy the court
that it was in the interests of justice to permit his
release on
bail.
[51]
[96]
There is also no basis on the evidence
before me to find that he influenced the prosecutorial decision or
the discretion of the
bail court in any actionable manner, neither
that he misled the court in any way.
[97]
Both Sergeant Tyafu and Ms. Shebudin were
justified in proceeding on the premise of a
prima
facie
case against the deceased of his
involvement in the so-called “gang rape”. This required
them to follow the prescripts
of section 60 (11) (a) of the CPA and
let the law takes its course.
[98]
The plaintiff has therefore failed to
establish that the police (or the second defendant for that matter)
caused the deceased’s
detention when the magistrate ordered
that he be detained in custody on the various occasions until the
charge(s) against him were
ultimately withdrawn.
Malicious
prosecution:
[99]
As for the claim of malicious prosecution,
I am unable to conclude that the plaintiff discharged the onus to
prove the elements
of such a claim. As against the first defendant,
it was accepted that he played no role in instigating the proceedings
against
the deceased in the sense in which this element is ordinarily
understood. As is the custom, all he did was to place the docket and

a recommendation before Ms. Shebudin and leave it with her to decide
on the future conduct of the matter. The second defendant’s

decision to enter the case into the system, in turn, rested on a
prima facie
case which afforded reasonable and probable cause for the ensuing
criminal proceedings against him.
[100]
The evidence in my view further failed to
establish that the defendants acted with malice (
animo
injuriandi
) in any manner contended for
by the plaintiff.
[101]
It is unnecessary to go into further detail
regarding the other elements of this claim.
Conclusion:
[102]
In the result the plaintiff’s claims
are dismissed, with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
1,
2, 3 and 5 March 2021 –
DATE
LAST HEADS
OF
ARGUMENT FILED
2 July 2021
DATE
OF JUDGMENT:
18 February 2022*
*Judgment
delivered electronically at 14h00 on this date by email to the
parties.
APPEARANCES
:
For the applicant: Mr.
S D Mfeyo instructed by Magqabi Seth Zith Attorneys, East London
(ref. Mr. Magqabi)
For
the defendants: Ms. A M Da Silva instructed by the State Attorney,
East London (ref. Mr. L Isaacs).
[1]
The plaintiff pleaded in the particulars of claim that the deceased
had suffered damages as a result of the defendant’s
conduct in
the sum of R20 000.00, being the costs reasonably expended by
him in defending himself against the rape charge
including costs of
the bail application.  The defendants however denied the
allegation and put to the plaintiff to the proof
thereof.  No
evidence had been adduced by the plaintiff in support of this claim
at all by the close of his case and it
made sense to grant
absolution at the request of the defendants in this narrow respect.
[2]
For
some or other reasons the parties prepared a “stated case”
(Exhibit E) which formed part of the pleadings from
which the facts
under this heading were recorded.
[3]
This
postponement was ostensibly at the request of the defence.
[4]
What
was insinuated here is that there was a twist in the tale so to
speak that had not been disclosed to the court or the import
of
which had been withheld from it. The premise of the plaintiff’s
case was that the complainant had done a so-called U-turn
at first
pointing out the deceased’s brother as having been amongst the
culprits who had raped her, whereas she later pointed
out the
deceased (Sandile) as the fourth suspect.  A further odd fact
in the mix is that this fourth suspect had not in
fact raped the
complainant himself but had instead “intervened” on her
behalf. These facts were however laid bare
to the court. The fact
that the deceased had denied the allegations put against him was
also no secret as this appears from his
warning statement. No other
explanation was ostensibly put forward that might in the assessment
of Sergeant Tyafu have been a
reason to suggest that the deceased
would in all probability be exonerated at the criminal trial.
[5]
Although
in the introductory paragraphs of the particulars of claim the
plaintiff pleads that the second defendant maliciously
prosecuted
the deceased (in emphasising the National Prosecuting Authority’s
vicarious liability for the prosecutor’s
decision), the
relevant allegations for a claim for malicious prosecution against
the second defendant are not repeated under
the heading “Claim
2: Malicious Prosecution”.  Instead, the focus in the
particulars of claim of the offending
behaviour on the part of the
second defendant was only on the deceased’s continued
detention purportedly at its instance
or that of the arresting
officer, both parties acting in concert, to “maliciously”
oppose bail.
[6]
This
is in accordance with the provisions of section 39 (3) of the CPA
which in effect assert that if the arrest is lawful the
ensuing
detention follows lawfully.  The section however deals only
with the general legal consequences of an arrest.
[7]
See
Minister
of Safety and Security v Slabbert
(2010) 2 All SA 474
(SCA) at [20]
– [21].  Although the police bear the onus to prove that
the arrest and detention are not wrongful,
an “issue”
must arise in this respect, meaning that a basis must be laid by the
plaintiff to suggest why the arrest
and detention was wrongful
before the police are saddled with an onus. What seems to have been
contended for
in
casu
were rather general allegations the pivot been the lack of a
prima
facie
case against the deceased from which all other incidents of the
alleged wrongfulness naturally and inexorably flowed.  The

plaintiff’s evidence would have had to establish a basis for
the claimed illegalities.
[8]
See footnote 6 above regarding the pleaded case which the defendants
were called upon to answer.
[9]
Indeed,
the only evidence that was adduced in this respect is that the
deceased was not informed of his constitutional rights
at home when
he was placed under arrest.
[10]
Suggested
in all of this is that the deceased could not have been at the rape
scene but the theory of him having had an
alibi
at the time was never really promoted, whether at the time of his
arrest, or when charged, or at the bail proceedings.
[11]
Section
60 (11) (a) of the CPA, applicable to a scenario such as the
present, provides as follows:
“
(11)
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 interests of justice permit his or her release.”
The
relevant item in Schedule 6 that the State relied upon as
establishing the category of offence with which the deceased had

been charged is stated as follows:
“
Rape or compelled
rape as contemplated in
section 3
or
4
of the
Criminal Law (Sexual
Offences and
Related Matters)
Amendment Act, 2007
, respectively—
(a)
when
committed—(i) in circumstances where the victim was raped more
than once, whether by the accused or by any co-perpetrator
or
accomplice; (ii) by more than one person, where such persons acted
in the execution or furtherance of a common purpose or

conspiracy;...”
[12]
This appears from the charge sheet that was entered into evidence
marked Exhibit “D”.
[13]
By
reason of the view that I take in
this
matter, it is not necessary to find if the fourth element for the
claim of malicious prosecution, namely that the proceedings
were
terminated in the deceased’s favour, had been established or
not.  Ms. Shebudin’s assessment that the prosecutor
had
been wrong to withdraw the charges against the deceased (I deal with
this later in my judgment above) is, however, to my
mind a tenable
one.  Firstly the prosecutor withdrawing the charge seemed to
misunderstand the mix up in the name of the
fourth suspect which,
once explained by the complainant, could not be construed as a
mistake in the identity of the suspect and,
secondly, she failed to
appreciate that the State’s case did not implicate the fourth
suspect as having sexually penetrated
the complainant, hence the
further DNA tests would not have met the objective,
vis
a vis
the deceased at least, of independently confirming or negating his
complicity in the rape incident.  The prosecutor’s

decision to withdraw therefore appears to me to have been ill
thought through and not appreciative of the nature of the fourth

suspect’s separate culpability in all the circumstances.
[14]
No
connection between the two cases was suggested, or certainly not
insofar as the deceased was implicated.
[15]
The
legality of the arrest on this basis was not really a feature of the
plaintiff’s case, but the first defendant felt
compelled to
provide the assurance that proper procedures and arrest protocols
had been followed throughout, no doubt on the
basis of the general
onus that the police bear to justify both the arrest and detention.
However see Minister of Safety
and Security v Slabbert,
Supra
,
at[20] – [21].
[16]
This
conforms to the circumstances outlined in Schedule 6 of the CPA
already set out in footnote 11 above.
[17]
Duncan v Minister of Law & Order
1986 (2) SA 805
(A) at 8181 G –
H and Minister of Safety and Security v Sekhoto & Another
2011
(1) SACR 315
(SCA) at paras [6] and [28].
[18]
All
of these prospects appear to my mind to be objectively justifiable
on the facts that were conveyed to Sergeant Tyafu.
[19]
This
offence replaced the offence of indecent assault. The offence of
sodomy, listed after “indecent assault”, was
also
removed from the list.
[20]
These three categories of offences, after “sexual assault”
were added by the SORMAA and the item relating to “Trafficking”

tweaked by section 48 of Act No. 7 of 2013.
[21]
The
later amendment concerns only the offence of trafficking. See
section 48 of Act No 7 of 2013.
[22]
It
ought to be since it is a statutory offence and at first blush may
create confusion.
[23]
See
Minister of Safety and Security v Sekhoto and Another 2011 (5) 367
(SCA) at [40] in which the SCA, focusing on the issue of
the
rationale for an arrest emphasized that a peace officer could seldom
be criticized for arresting a suspect for
serious
crime
and thereupon remarked that the offences listed in Schedule 1 are
serious, not only because the legislature thought so. See also
par
[25] which emphasizes that an arrest under the circumstances set out
in section 40 (1) (b) of the CPA (by reason of what
kind of offences
the Schedule contemplates) could hardly amount to a deprivation of
freedom which is arbitrary or without just
cause in conflict with
the Bill of Rights. The charging of a suspect of “attempted
rape” (as it is still colloquially
referred to even after the
inception of the SORMAA), or of being an accomplice to a
perpetrator(s) who rape(s), or under the
mantle of a conspiracy to
rape, especially where it concerns a so-called “gang rape,”
pursuant to the new SORMAA,
could hardly be passed off as a minor
offence.  It is regarded under the SORMAA as an equally serious
offence as the primary
offence of which it is a subset.
[24]
Lekeka
v S
[2020] 3 All SA 485
(FB) at [39].
[25]
Emphasis
added.
[26]
Quite
evidently it is the gravity of an offence and the serious punishment
attracted thereby that puts in in the category of serious
offences
which, from a rationality point of view, would justify an arrest by
a police officer without a warrant.  See footnote
22 above.
[27]
The
way the item reads it could mean all sexual offences against a child
or a disabled person, or only those contemplated in the
chapters of
the SORMAA specifically referred to in the description of the
category.
[28]
Sergeant Tyafu’s failing perhaps was in not getting the
complainant to depose to a supplementary affidavit setting out
these
extraordinary events (or in dealing with it himself in his arrest
statement), but nothing turns on it because he reported
orally to
Ms. Shebudin what had happened and it was on this information that
she satisfied herself that the complainant’s
identification of
the deceased as the fourth suspect, rather than “Sive”
named in her statement, had been adequately
cleared up. She also
confirmed in her testimony that Sergeant Tyafu had orally disclosed
to her that the complainant informed
him of, or he had drawn her on,
the issue of when exactly she had had an opportunity to see his face
which she in turn had clarified
was in the lights of the approaching
vehicle that had come to her rescue. It was not enlarged upon at the
bail hearing, or Sergeant
Tyafu’s version criticised, when he
explained to the court that the fourth suspect had asked her to
accompany him away
from the rape scene and that, along the way, “
a car appeared with lights.” The clear import of this is that
she
had had an opportunity to catch a glimpse of this person then as
opposed to at the rape scene. (The absence of explanatory or
supplementary affidavits might be the reason why the second
prosecutor provisionally withdrew the charges against the deceased

on the basis of a concern about identity later on, but that cannot
detract from the circumstances known to Sergeant Tyafu and
Ms
Shebudin at the critical moments, or from the objective reality of a
prima
facie
case against the deceased at those times.)
[29]
Minister of Safety and Security & Another v Swart 2012 (2) SA
SACR 226 (SCA) at [20]; S v Nel & Another
1980 (4) SA 28
(E) at
33H.
[30]
R v Van Heerden
1958 (3) SA 150
(T) at 152; S v Reabow
2007 (2) SACR
292
(E) at 297 c – e.
[31]
1988 (2) SA 654.
[32]
1984 (3) SA 560 (T).
[33]
Minister
of Safety and Security v Sekhoto and Another,
Supra
,
at para [25].
[34]
Minister
of Law and Order v Dempsey
1988 (3) SA 19
(A) at 38 C.
[35]
Sekhoto
Supra
at para [39].
[36]
Sekhoto
Supra
at para [44].
[37]
As
was stated in Sekhoto at para [25] it could hardly be suggested that
an arrest under the circumstances set out in section 40
(1) (b)
could amount to a deprivation of freedom which is arbitrary or
without just cause in conflict with the Bill of Rights.
[38]
Object
is relevant while motive is not.   Sekhoto
Supra
at para [31].
[39]
The
rights enshrined in section 35 of the Constitution are echoed in
section 50 of the CPA.
[40]
S v Dlamini 1992 (2) SACR 51 (E).
[41]
Carmichele v Minister of Safety and Security and another
[2000] ZASCA 149
;
2001 (1) SA
489
(SCA).
[42]
Section 60 (11) of the CPA.
[43]
See generally S v Mbele & another
1996 (1) SACR 212
(W) 237 f –
g.
[44]
Compare S v Porthen & others
2004 (2) SACR 242
() para 60 and S
v Scott-Crossley
2007 (2) SACR 470
(SCA) paras 4 and 12.
[45]
S v Mathebula
2010 (1) SACR 55
(SCA) at para 12.
[46]
W v Minister of Police (92/2012)
[2014] ZASCA 108
(20 August 2014)
paras 3 and 28.
[47]
(1393/2018)
[2020] ZASCA 44
)21 April 2020).
[48]
See
also De Klerk v Minister of Police
[2019] ZACC 32
(CC), Minister of
Police & Another v R Muller
[2019] ZASCA 165
(29 November 2019);
Minister of Police v Mahleza [2021] ZAECGHC 83 (14 September 2021).
[49]
Mahlangu
supra
at para [22].
[50]
[2014] ZASCA 108; 2015 (1) SACR (SCA).
[51]
In the case of W v Minister of Police, the detention was as a result
of incorrect information given by the police to the court
at the
bail hearing.