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2021
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[2021] ZANCHC 53
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Makgoka v Minister of Police and Others (1735 / 2016) [2021] ZANCHC 53 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE
DIVISION,
KIMBERLEY
Case
No: 1735 / 2016
Heard:
02
I
06
I
2021
Delivered:
03
I
09
I
2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
SHAUN
MOHALE
MAKGOKA
Plaintiff
and
MINISTER
OF
POLICE
First Defendant
W/O
PETRUS HENDRIK VAN DER MERWE
Second Defendant
CAPTAIN
RUDOLF
JOHANNES
LOUWRENS
Third defendant
JUDGMENT
Moses
AJ
INTRODUCTION
[1]
The plaintiff, Shaun Mohale Makgoka, a major male educator with the
Northern
Cape Department of Education, instituted action against the
defendants in the High Court under case number 1935/2016. His claims
are based on an alleged unlawful arrest and detention that occurred
on 06 June 2014 in Kimberley.
1.1
He alleges that the second and third defendants, both police officers
within South African Police
Services (SAPS), are employees of the
first defendant. The second and third defendants were at all material
times acting in their
course and scope of employment with the first
defendant.
1.2
The plaintiff avers that in the light of the fact that the second and
third defendants were acting
in the course and scope of their
employment with the first defendant, the first defendant is
vicariously liable for the conduct
of the second and third
defendants.
1.3
He alleges that he was unlawfully arrested on 6 June 2014, on a
charge of murder, and detained
by the second and/or third defendants
under Roodepan CAS: 235/05/2014. He avers that the said arrest was
unlawful as the second,
alternatively the third defendant did not
have a warrant of arrest to arrest him and the said arrest was not
necessary to secure
his attendance at the court.
1.4
With regard to his second claim of unlawful detention, the original
second claim of assault having
been abandoned, the plaintiff alleges
that on 06 June 2014, he was unlawfully deprived of his freedom when
the second alternatively
the third defendant took him to the
Phakamile Mabija Police Station for detention.
1.5
As a result of the unlawful arrest, he appeared in court on 09 June
2014 and he was not committed
to bail as the employees of the first
defendant DPPosed his release on bail and the matter was postponed to
17 June 2014.
1.6
He alleges that on 17 June 2014, when the matter appeared before the
court, the employees of the
first defendant insisted that they would
want to conduct an identity parade and this resulted in the matter
being postponed to
24 June 2014.
1.7
On 24 June 2014, he appeared in court and the charges against him
were withdrawn due to the fact
that there was no evidence linking him
to the commission of the offence of murder.
[2]
The defendants pleaded to the allegations, as follows:
2.1
They
admitted that the plaintiff was arrested without a warrant of arrest
and pleaded that he was arrested
lawfully in
terms of section
40(1)(b) of
the Criminal Procedure Act (CPA).
[1]
The defendants further pleaded that they were entitled to arrest the
plaintiff as the arrest was necessary.
2.2
The defendants, in so far as the unlawful detention is
concerned, admit the detention and give a bare denial of the
unlawfulness
of the detention.
[3]
On 02 and 03 June 2021, the trial proceeded on the merits, and the
question
of quantum was not dealt with as the parties had agreed on
the separation of the quantum from the merits.
THE EVIDENCE
:
IN CHIEF
[4]
The defendant called only one witness being the third defendant.
[5]
He testified as follows:
5.1
At the time of the plaintiff's arrest he was a captain at the
Organised Crime Unit of the Directorate
for Priority Crime
Investigation (SAPS) commonly known as the Hawks.
5.2
He was requested to assist with the investigation in this matter,
which was a murder, as he is
an expert in the field of cell phone
investigation.
5.3
The third defendant made some enquiries on the phone calls made to
and from the deceased's phone
and established that a certain Bayibayi
and Deon Mkwanazi were possible suspects in the murder case.
5.4
Bayibayi was excluded as a suspect after further investigations were
done.
5.5
Deon Mkwanazi was arrested and the third defendant conducted an
interview with Mkwanazi on 05
June 2014. He denied any involvement
and/or knowledge of this crime initially.
5.6
During this interview, Mkwanazi was confronted with information
regarding a cell phone obtained
from his girlfriend.
5.7
Mkwanazi started crying and then decided that he would like to tell
the truth of what happened
in relation to the murder.
5.8
The third defendant warned Mkwanazi that anything that he says may be
used as evidence against
him.
5.9
Mkwanazi then implicated himself, Aaron Sago, Rodger Johnson and one
Shaun as the persons involved
in the murder. He could not remember
the surname of this Shaun. According to the third defendant, Mkwanazi
said the following:
"Dat
hy, Aaron Sago, Rodger Johnson en Shaun dit gedoen het."
5.10
Mkwanazi initially denied any involvement in the commission of the
murder. An interview was also conducted with
Mkwanazi's girlfriend
and it was after the interview with the girlfriend that Mkwanazi
reported his involvement in the murder and
said that he, Roger
Johnson, Aaron Sago and one Shaun had done it. The latter person
turned out to be the plaintiff herein. Mkwanazi
then asked the third
defendant how the police could help him. He then informed Mkwanazi
that he will enquire from the Director
of Public Prosecutions (DPP)
if they would be interested in making Mkwanazi a section 204 state
witness.
5.11
Deon Mkwanazi explained exactly what happened at the murder scene.
5.12
The version that was presented by Mkwanazi was corroborated by what
was already in the docket and as a result he
had all the reasons to
believe what Mkwanazi was reporting to him. This report was the basis
for his suspicion for the arrest of
the plaintiff.
5.13
On 05 June 2014, Aaron Sago and Roger Johnson were arrested and they
both denied their involvement in the murder.
5.14
The third defendant also conducted an interview with Benedict Khooe
also known as "McGyver" who also
denied any involvement in
the commission of the murder. The third defendant informed "McGyver"
that Mkwanazi reported
that the plaintiff arranged the firearm and
"McGyver" provided the firearm to Roger Johnson. This was
denied by "McGyver".
"McGyver" admitted to
knowing the plaintiff and confirmed that the plaintiff paid him a
visit in prison on 03 June 2014.
5.15
The third respondent requested "McGyver" to show him where
the plaintiff resides and on their way to
Greenpoint, "McGyver"
identified a green motor vehicle and said that it was the plaintiff.
5.16
The motor vehicle was stDPPed and the plaintiff was arrested after
the third defendant had introduced himself to
the plaintiff.
5.17
The plaintiff denied any involvement in the murder case; however, he,
the third defendant, ascertained that the
plaintiff's cell phone had
a cellular contact number that bore the name of Aaron Sago.
5.18
The second defendant obtained a section 204 statement from Mkwanazi
on 07 June 2014 so that the Director of Public
Prosecutions could
have a look at it after the appearance of the accused in court.
5.19
On Monday 09 June 2014, the plaintiff, together with his co
accused, Deon Mkwanazi, Aaron Sago and Roger Johnson,
appeared
in the Magistrate's Court in Kimberley on charges of murder and the
matter was postponed to a date that the third defendant
cannot
recall. It turned out that the matter was postponed to 17 June 2014
for a formal DPPosed bail application. He did not testify
in the bail
application and does not know what happened further as the matter was
in the hands of the prosecution.
5.20
Later that afternoon, on Monday 09 June 2014, the third defendant
together with the second defendant, had a meeting
with the Director
of Public Prosecutions for purposes of further investigations because
Mkwanazi had asked how the police could
help him.
5.21
The third defendant testified that the role of the plaintiff in the
matter was that he arranged the firearm with
"McGyver" and
"McGyver" gave the firearm to Roger Johnson. He further
testified that Deon Mkwanazi also told
him about a man called
"Pantsi" who is/was a traditional healer/doctor and who
also knew about this murder incident.
Pantsi was later questioned
about this but he denied it.
5.22
He also confirmed that the second defendant, Warrant Officer Van der
Merwe, did not effect the arrest of the plaintiff,
but was present
when he, the third defendant, arrested the plaintiff and explained
the latter's rights to him. He is/was the person
who arrested the
plaintiff.
5.23
He also confirmed that the plaintiff became a suspect in this murder
case, based on the information he obtained
from Deon Mkwanazi, that
he believed the said Mkwanazi, although he did not just accept
Mkwanazi's version "blindly".
In this regard, he testified
as follows (based on my written notes):
"It
is not just that I took Deon Mkwanazi's story blindly. There were
so many connections to what had happened ... What stood out
was (the fact) that the deceased spoke to
a
woman over the
phone. And at that stage that information was not available to
me.
I followed it up and Warrant Officer Buys confirmed that the
deceased was talking to
a
woman
..."
(on
the cell phone).
5.24
On a question by the Court as to how long after this consultation
with Mkwanazi did he
effect
the arrest of the plaintiff, he
said that it was the following day, 06 June 2014,
"because
Deon
(Mkwanazi) did not know where the plaintiff stayed
although he pointed out
a
house where he once saw the motor
vehicle of the plaintiff parked."
DURING
CROSS-EXAMINATION
[6]
The third defendant was subjected to cross-examination and his
evidence
can be summarised as follows:
6.1
The plaintiff was not granted bail on 09 June 2014.
6.2
At the meeting with the Director of Public Prosecutions on 09 June
2014, the Director of Public
Prosecutions rejected the proposal that
Mkwanazi be made a section 204 state witness. The Director of Public
Prosecutions recommended
that Mkwanazi be approached for a plea
bargaining.
6.3
The second defendant was tasked to facilitate the plea-bargaining
process. Despite the rejection
of the proposal by the Director of
Public Prosecutions, Mkwanazi was taken to a magistrate in order to
obtain a confession from
him.
6.4
Later on, Mkwanazi refused to become a state witness or engage in the
plea-bargaining process.
The decision of the Director of Public
Prosecutions was that Mkwanazi was no longer a witness. As of 09 June
2014, the police knew
that Mkwanazi was no longer a state witness.
6.5
On 17 June 2014, the plaintiff with the co-accused appeared in court
again, however, the third
defendant, harbours no knowledge of what
happened in court and did not know of the future dates.
6.6
The third defendant conceded that the plaintiff appeared in court
with the other accused and the
case against them was withdrawn due to
the fact that there was no evidence against the accused. The main
reason for the withdrawal
of the charges was because Mkwanazi was no
longer a state witness.
6.7
Mkwanazi was later on charged with murder on his own. He was charged
on account of the version
that he had presented to the police. He was
however acquitted of the charges by the High Court - this Court.
6.8
During the interview with Mkwanazi, he disclosed everything to the
third defendant. The third
defendant testified that he only testified
about what he could recall.
6.9
He stated that during the consultation he primarily listened to what
Mkwanazi was stating and
he may have asked some questions as Mkwanazi
was narrating.
6.10
According to the third defendant, the murder took place on 24 May
2014. He, the third defendant, became involved in the
matter as from
02 June 2014 after he was invited by Warrant Officer Buys.
6.11
He cannot recall what exactly was in the docket but can recall that a
statement by one Mr Riet ("Riet") was
in the docket. Riet
is the person who, together with a child, were in the deceased's
motor vehicle when they stDPPed to pick up
a man, who named himself
"Mr Williams" ("Williams"), before the shooting
and killing of the deceased. The information
that Mkwanazi gave
corresponded with that which was in the docket. He also studied what
was in the investigation diary; however,
his recollection of what was
in the docket was very sketchy. Whatever that was in the docket did
not implicate anyone to the murder
including Mkwanazi himself.
According to the contents of the docket, Mkwanazi was not even the
shooter.
6.12
There was uncertainty about the person that was picked up. The
presumption was that there was someone waiting. At some
point, Riet
lost sight of the deceased and the person who was picked up. The only
information available in the docket was that
the deceased picked up a
person who pretended to be Williams and that was the only person who
was implicated in the murder. The
shooting took place out of sight of
Riet and Riet did not refer to anyone else about the shooting.
6.13
Mkwanazi was arrested by the second defendant, who at all relevant
times, was part of this investigation, on a charge
of murder. The
third defendant maintained that Mkwanazi at first lied to him. He
maintained his version which was a denial of any
involvement in this
murder.
6.14
He did not accept Mkwanazi's version until he informed Mkwanazi that
according to his girlfriend he was the only person
who could have
used the "simcard" and the handset. It was after this that
Mkwanazi literally "broke down",
put his hands on his face,
his head on the table and started crying.
6.15
Mkwanazi did not give the plaintiff's surname. He maintains that he
would have asked him what the plaintiff's surname
was and his
response would have been that he does not know and/or could not
remember the surname of the plaintiff.
6.16
He explained that during the interview, Mkwanazi stated that he was
the person who pretended to be "Williams",
he explained
that he took the deceased to the place where Aaron shot him.
6.17
At no stage did Mkwanazi mention the name of the plaintiff at the
scene of the murder. According to him, Mkwanazi did
not state that
the plaintiff was in the vicinity of the scene of the murder. At the
scene of the murder, Mkwanazi only implicated
himself and Aaron and
nobody else. There was no information to the effect that the
plaintiff was anywhere near the scene where
the murder took place.
But according to this witness, the third defendant, one does not have
to be physically present at a crime
scene to be involved in the
crime.
6.18
According to the third defendant, the plaintiff arranged the firearm
and "McGyver" made the firearm available.
He finally
explained that the plaintiff was not physically present at the scene
of the murder. He cannot recall the date of the
arrangement of the
firearm.
6.19
Mkwanazi did not say what happened to the firearm after the other
person had handed it to Roger Johnson. He neglected
to ask Mkwanazi
how the firearm moved from Roger Johnson to Aaron. He also neglected
to ask Mkwanazi if the plaintiff was aware
that the firearm would be
used for the murder.
6.20
The third defendant assumed that the killing of the deceased was a
"hit" because Aaron paid the sum of R7,000.00
to Mkwanazi.
He has no knowledge as to who else received any payment from Aaron.
6.21
He could not say if the plaintiff was directly involved in the
murder. Neither could he state that the plaintiff arranged
the
firearm so that Aaron could kill the deceased. He conceded that on
the version of Mkwanazi, the plaintiff was only involved
allegedly,
in an illegal transaction of arranging a firearm. The evidence in
this regard was as follows (based on my written notes):
"Question
("Q”): And he
(Mkwanazi) said that he pretended to
be Mr Williams?
Answer
(“A”):
Yes.
Q:
And he told you that he took the deceased
to
a
place where
Aaron shot him?
A:
Correct.
Q:
And he did not mention the name Shaun when he described the actual
murder?
A:
Correct.
Q:
He did not put Shaun in the vicinity of murder?
A:
Correct.
Q:
And he did not put the motor vehicle of Shaun in the vicinity of the
murder?
A:
Correct.
Q:
And at the time he only implicated himself and Aaron?
A:
Yes.
Q:
You had no information that Shaun
was
anywhere close to that
murder?
A:
Correct.
Q:
He also told you him, Roger and Aaron did this murder ... and
Shaun?
A:
No, Shaun arranged firearm through McGyver, who gave firearm to
Rodger. With
that explanation it
was
clear that Shaun
(plaintiff) and Roger were not part (of actual murder).
Q:
So you did not ask any questions at the time in relation to the role
of Shaun and Rodger?
A:
Well, I must have asked him about it, hence he referred to Shaun and
Rodger.
Because he must have told me about McGyver who
was
in
jail.
Q:
So you've learnt Shaun
was
not there with/as a getaway
car, he did not shoot, and he
was
not there at the
scene...
?
A:
That's how he explained
it to me, but it
is
logical
that you don't have to be physically present at the scene to be
involved.
Q:
So Shaun arranged the firearm with McGyver, and McGyver handed it
over to Rodger?
A:
Correct.
Q:
But
was
McGyver not in custody at the time?
A:
I would have followed it, but can't recall it. I don't know if he
was
in custody already on the day of the murder.
Q:
Did you ask any question when Deon told you a Shaun would arrange the
firearm?
A:
I must have asked him that, because this
is
how
this
"Pantsi's" name pDPPed up
-
the traditional doctor.
Q:
Did you elicit any further information via these questions?
A:
I can't recall. But there was no reason for me to doubt Deon's
version. Because when I followed up...
Q:
Did you know about the date when the firearm arrangement by Shaun
would happen?
A:
I
can't remember.
Q:
On the day of the murder or before that?
A:
I can't recall.
Q:
And who approached who in respect of this firearm?
A:
According to Deon, Shaun approached McGyver about the firearm. If I
can just
get the statement of Pantsi, because he refers to people in
the car...
Q:
But when you approached Pantsi, he denied everything? A: He (Pantsi)
denies knowledge
of a firearm.
Q:
According to Deon, who approached Shaun for a firearm?
A:
Deon said he, Aaron, Rodger and Shaun committed this crime. So based
on this,
I accepted that Shaun was the person who arranged this
firearm with McGyver.
Q:
Deon did not explain anything further what happened with this
firearm?
A:
He would have been asked about the firearm. But it was never traced.
Q:
But nowhere Deon said this firearm was given by one person to another
person?
A:
I could have omitted it.
Q:
Is this McGyver a dealer in unlicensed firearms?
A
:
I don't know. All I know was that McGyver was in custody,
from Warrant Officer Smit, there was a murder, and the murdered
person's
firearm was stolen by McGyver. So it was clear to me that
McGyver
was involved in unlicensed
firearms.
Q:
Did you
ask
Deon if Shaun knew that he
-
Deon
-
and
Aaron would use this firearm in a murder?
A:
I
am
not
sure,
but Deon
named
these role
players.
Q:
You
had no
information
at
the
time
why
the deceased
was
murdered?
A:
Not at that stage, no. Later there were rumours that the deceased was
a
funeral undertaker and he became DPPosition for
another undertaker. He also told me that the next day, after
the murder, Aaron Sago gave him R7,000.00. That led me to think that
Aaron Sago was the person with an instruction from somebody
else to kill the deceased.
Q:
So
this indicated to you that it was a "hit" and
Aaron and Deon shared this money?
A:
Yes, that is
was
a hit. But if he and Aaron shared the
money I don't know. Deon only mentioned that he received the money
from
Aaron.
Q:
But no information that plaintiff received any money?
A:
No.
Q:
You couldn't state under oath that the reason why the plaintiff
arranged the firearm was to shoot somebody?
A:
No, the plaintiff would not know that Aaron would use it to shoot
somebody.
Q:
The onus is on you to get clarity before you arrest. You make
inferences, but did not get any other information to verify this
information?
A:
There was more than enough evidence to (arrest the plaintiff)... He
(Deon) gave me the names. Plaintiff's name was mentioned
as
the
person who would arrange the firearm... So Deon did not mention
McGyver
as
being involved in this murder, only to
arrange a firearm. But Shaun's name was mentioned specifically
and linked to this (murder). Shaun's number
was
on his cell
phone, and that of McGyver, and McGyver's note, with the name of
Rodger Johnson. And also, McGyver said Shaun came to
visit him on 03
June 2014.
Q:
And this Pantsi and McGyver denied involvement in this murder?
A:
It was not strange to me that McGyver would deny involvement with
this firearm. And that Pantsi also would deny any involvement.
Q:
I put it to you that Deon's information was so very vague with
regards to the involvement of the plaintiff and objectively
inadequate to form
a
reasonable suspicion to effect an arrest.
A:
I totally disagree with that statement.
Why would Deon
implicate his friends in such
a
thing?"
6.22
At the time of the arrest of the plaintiff, the third defendant did
not have any information under oath that the plaintiff
had committed
any offence. On Monday when the plaintiff appeared in court, the only
available information was the section 204 statement
of Mkwanazi.
6.23
When the plaintiff went to court, he expected the accused not to be
released on bail. He knew that the position of Mkwanazi
as a section
204 had not been finalised.
6.24
Subsequent to the rejection of Mkwanazi as a section 204 state
witness, he knew that there was no direct evidence linking
the
plaintiff to the murder and he did nothing about it, despite sharing
this view with the representative of the DPP, Mr Botha.
6.25
He enquired from Mr Botha what has to happen to the other accused now
that Mkwanazi was rejected as a state witness.
6.26
The reason why the accused were arrested was to take them to court
and prove with evidence that they had committed the
offence of
murder. He conceded that there was no need for further incarceration
of the accused as there was no evidence linking
them to the
commission of the offence. The need for further incarceration fell
away due to lack of evidence.
6.27
He informed Advocate Botha that if Mkwanazi does not become a section
204 state witness,"..
.then we do not have any case against
the others."
Advocate Botha, however, insisted that
the charges should not be withdrawn.
6.28
He conceded that as from Monday after the meeting with the Director
of Public Prosecutions, the detention of the plaintiff
was "perhaps
so" unlawful. His direct evidence in this regard, when it was
put to him that on the Monday, after the consultation
with the DPP,
the further detention of the accused was unlawful, he said
"Perhaps
so,
but the DPP probably wanted to see what Deon's plan was
with the plea bargaining."
He admitted that people cannot be
kept in detention whilst waiting for evidence to come in the future.
He felt uncomfortable that
the plaintiff was held in detention and
there was no evidence linking him to the offence of murder.
IN RE-EXAMINATION
:
[7]
The third defendant also testified in re-examination that when the
matter
went to court the section 204 statement of Mkwanazi was in the
docket as well as the statement of Theophilus Tyopho also known as
Pantsi.
[8]
He then referred the Court to page 174 of Volume 2 of the court
bundle,
the statement of Pantsi which also implicated the plaintiff,
where in paragraph 6 thereof, there is a reference to "Shaun
(allegedly the plaintiff herein), and also to "Pyp" which
means "a gun". This statement was made and obtained
on 07
June 2014, that is after the arrest of the plaintiff on 06 June 2014.
[9]
No further witnesses were called and the defendants' case was closed.
[10]
The plaintiff chose not to testify and also closed his case. This is
the subtotal of the oral
evidence in court.
THE COMMON CAUSE FACTS
[11]
The following facts are now common cause between the parties:
11.1
The citation of the parties.
11.2
The second and third defendants are police officers and on the
day in question they were acting in the course and scope of their
employment with the first defendant.
11.3
The plaintiff was arrested on 06 June 2014 by the third
defendant without a warrant.
11.4
The plaintiff was, subsequent to the arrest, detained and only
released on 24 June 2014.
11.5
The defendant accepted that it bore the duty to begin and bore
the onus of proof to justify the arrest and the detention.
11.6
Quantum and merits have been separated for purposes of trial.
11.7
The plaintiff abandoned his claim for the alleged assault at
the commencement of the trial, and the costs on this aspect was
reserved
for argument.
[12]
It is also common cause based on the above stated evidence;
12.1
That both the second and third defendants were at all relevant times
part of the same investigation team dealing with,
and investigating
the murder that was committed, and on which those persons mentioned
in the said evidence, including the plaintiff,
were arrested at the
time.
12.2
That based on the information elicited from Deon Mkwanazi, (Mkwanazi
and/or Deon) by the third defendant on or about
05 June 2014, the
names of two other persons were also furnished to the third defendant
in the course of his investigation into
the said murder, namely one
Benedict Khooe also known as "McGyver'' and one Theophilus
Tyopho, also known as "Pantsi".
12.3
That the third defendant consulted with "McGyver" before he
effected the arrest of the plaintiff regarding
the information of,
and allegations by, Mkwanazi, and that "McGyver" denied
those allegations as well as any involvement
in the said murder.
12.4
That the third defendant also followed up Mkwanazi's information and
allegations regarding the plaintiff, with Pantsi,
before the arrest
of the plaintiff, and Pantsi also denied any involvement in this
murder.
12.5
That before and at the time of the arrest of the plaintiff, there was
no information available as to who in fact supplied
the firearm that
was allegedly used by one Aaron Sago, to shoot the deceased on the
day of the incident, which happened on or about
24 May 2014.
12.6
The said firearm could not be traced and was never found.
THE ISSUES IN DISPUTE
AND FOR DETERMINATION
:
[13]
It was agreed between the parties at the commencement of the trial,
that the court should adjudicate
on the following aspects, which
remained in dispute.
13.1
Was the plaintiff's arrest lawfully effected in terms of section
40(1)(b) of the Criminal Procedure Act and more specifically,
did the
investigating officer have a reasonable suspicion that the plaintiff
committed a Schedule 1 offence?
13.2
Was the plaintiff's further detention lawful and at the instance of
the defendants?
13.3
Costs for the withdrawal of the assault claim by the plaintiff.
13.4
Costs for the trial on the merits.
THE
PLAINTIFF'S
SUBMISSIONS
[14]
With regards to the evidence led and tendered on behalf of the
defendants, the plaintiff submitted
that:
14.1
The third defendant as appears from the summary of his evidence
contradicts himself in many aspects, especially pertaining
to the
chronology of the events, who said what at the scene and as to what
happened at his office. The only aspects where his evidence
tends to
be the same, are with regard to his denial that the plaintiff was
lawfully arrested and that he arrested him on the basis
of the
information obtained from Mkwanazi only.
14.2
The third defendant appeared to be more concerned with his
understanding of the fact that Mkwanazi said that
"they did
if'
and neglected answering the questions that were put to him.
From his evidence, it appears that he, Mkwanazi, attempted to
downplay
his role in the events.
14.3
The versions of the defendants are improbable in the context of the
evidence as a whole.
14.4
The following are the questions that the third defendant neglected to
ask, according to the submissions made on the Plaintiff's
behalf:
14.4.1
when the firearm was arranged?;
14.4.2
what type of firearm was arranged as according to Mkwanazi?;
14.4.3
what happened to the firearm that was handed over to Rodger Johnson?;
14.4.4
what did Rodger do with the firearm that was handed over to him?;
14.4.5
is Rodger Johnson still in possession of the firearm that was handed
over to him?;
14.4.6
when did Aaron get to be in possession of the firearm that was used
in killing the deceased?;
14.4.7
was the same firearm that was handed over to Rodger the same that was
in possession of Aaron?;
14.4.8
what happened to the firearm after Aaron allegedly used it?;
14.4.9
where was the plaintiff when the murder was committed?;
14.4.10
how much did Rodger get for his involvement
in the murder?;
14.4.11
how much did the plaintiff get for his involvement
in the murder, if
any?;
14.4.12
did anybody inform the plaintiff that the firearm
was going to be
used in the commission of the murder?;
14.4.13
what information did Mkwanazi have regarding
the conspiracy to commit
the murder, if any?
[15]
With regards to the issue of whether or not the arrest was lawful,
the following submissions
were made on behalf of the plaintiff,
which, on this issue are similar to those submissions made on behalf
of the defendant;
15.1
For an arresting officer to effect a lawful arrest without a warrant,
the following jurisdictional facts must be present:
15.1.1
the arresting officer must be a peace officer;
15.1.2
he/she must arrest a suspect based on a reasonable suspicion
that the suspect committed an offence as set out in Schedule 1 of the
Criminal Procedure Act 51 of 1977
;
15.1.3
he/she
must arrest the suspect without a warrant authorizing
such
arrest.
[2]
15.2
An enquiry
into whether an arresting officer arrested a suspect on a reasonable
suspicion that he committed a Schedule 1 offence
is
objectively
justiciable. The test is not whether the arresting officer
had reason
to suspect, but whether his suspicion is founded on reasonable
grounds
[3]
.
15.3
Any
additional information available to the arresting officer when he
arrests a suspect must also be considered to determine whether
he
acted on a reasonable suspicion
[4]
.
15.4
In 2005, the SCA adopted the following definition of suspicion:
"Suspicion
in its ordinary meaning is
a
state of
conjecture or surmise where proof is lacking: 'I suspect but cannot
prove'. Suspicion arises at or near the starting point
of an
investigation of which the obtaining of
a
prima
facie proof is the end."
[5]
15.5
Information
by a suspect which implicates another person in the commission of an
offence, although inadmissible as evidence against
a co-accused may
be used to determine whether the suspicion harboured by an arresting
officer was reasonable.
[6]
[16]
With regards to the issue of the plaintiff's detention and whether it
was lawful or unlawful,
the following submissions were made on his
behalf.
16.1
The
authority of the police to detain a person is inherent in their
discretionary power to arrest.
[7]
16.2
In the
past, it was argued that once a detainee is brought before court,
that authority is exhausted. Further detention of a suspect
is within
the discretion of the court and requires a judicial evaluation to
determine whether it is in the interest of justice
to release the
suspect on bail.
[8]
16.3
It was held
that it is the duty of a judicial officer to guard against the
accused being detained on insubstantial or improper grounds
and
to ensure
that his detention is not unduly extended.
[9]
16.4
However, an
order by the reception court (being a court tasked with remanding
cases when accused persons first appear in court),
without a proper
enquiry into whether or not an accused person ought to be detained
pending trial, does not end the unlawfulness
of the detention of an
accused person.
[10]
16.5
Whether the
unlawfulness of a detention ceases upon a remand order by a
Magistrate has to be answered with regard to the peculiar
facts of
each case
[11]
.
16.6
The
suspicion that must be held must, in order to be a reasonable
one, be
objectively sustainable, in the sense that it must rest on reasonable
grounds.
[12]
16.7
In
Zealand
v Minister of Justice and Constitutional Development and Another
[13]
the
following is said:
"The
Constitution
enshrines the
right
to
freedom
and security of the
person, including
the right not to be deprived of freedom arbitrarily
or
without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case for the applicant simply
to
plead that he was unlawfully detained. This he did.
The respondents then bore the burden to justify the deprivation of
liberty,
whatever form it may have taken."
16.8
Justification for the detention after an arrest until a first
appearance in court continues to rest on the police.
16.9
It is trite
that police officers purporting to act in terms of section 40(1)(b)
of the Act should investigate exculpatory explanations
offered by a
suspect before they can form a reasonable suspicion
for the
purpose of lawful arrest.
[14]
16.10
It is
expected of a reasonable person to analyse and weigh the quality of
information available critically and only thereafter,
and having
checked what can be checked, will he form a mature suspicion that
will justify an arrest.
[15]
16.11
In
De
Klerk v Minister of Police
[16]
,
in the
Constitutional Court, the following was said by the majority
judgment:
"In
cases
like this, the liability of the police for detention
post-court appearance should be determined on an application of the
principles
of legal causation, having regard to the applicable tests
and policy considerations. This may include a consideration of
whether
the post-court appearance detention
was
lawful. It
is
these public policy considerations that will serve
as
a
measure of control
to ensure that liability
is
not
extended too far. The conduct of the police after an unlawful arrest,
especially if the police acted unlawfully after the unlawful
arrest
of the plaintiff,
is
to be evaluated and considered in
determining legal causation. In addition, every matter must be
determined on its own facts
-
there
is
no general rule
that can be applied dogmatically
in order
to
determine
liability."
[17]
The plaintiff's case against the defendants can therefore be
summarized as follows:
17.1
The sole basis for the third defendant's suspicion that led to the
arrest of the plaintiff on a charge of murder
is the interview he had
with Mkwanazi.
17.2
Mkwanazi informed the third defendant that he, Aaron, Rodger and the
Plaintiff did it, however, it is clear that
only Mkwanazi and Aaron
were involved.
17.3
There is no allegation that the plaintiff was present on the scene or
in any way involved on the day of the murder.
17.4
After the murder, Mkwanazi received the sum of R7,000.00 from Aaron
and no mention is made of the plaintiff.
17.5
The third defendant conceded that he did not clarify the involvement
of the plaintiff in the commission of the
offence.
17.6
The third defendant knew as early as 09 June 2014 that there was no
evidence linking the plaintiff to the commission
of the offence.
17.7
The third defendant knew or reasonably foresaw that with the
plaintiff's appearance in court on 09 June 2014, the
matter would be
postponed as he had testified that it was a schedule 6 offence and
there was no likelihood that the plaintiff would
be released on bail.
17.8
It is not in dispute that as at the time of the release of the
plaintiff on 24 June 2014, there was still no evidence
linking the
plaintiff to the commission of the offence of murder.
[18]
Hence the plaintiff prays for an order in the following terms:
18.1
The plaintiff's arrest by the third defendant acting in the course
and scope of his employment is unlawful.
18.2
The plaintiff's detention by the third defendant and/or other
employees of the first defendant from 06 June 2014 until
24 June 2014
is unlawful.
18.3
The defendants are ordered to pay the plaintiff for his proven
damages, the one paying the others to be absolved.
THE DEFENDANTS'
SUBMISSIONS
[19]
With regards to the plaintiff's alleged unlawful arrest, the
defendants submitted the following:
19.1
That the
jurisdictional facts as set out in the
Duncan
decision
[17]
existed before the plaintiff was arrested on 06 June 2014.
19.2
The third defendant who was the arresting officer is a police officer
and therefore a peace officer as contemplated in
the relevant
legislation.
19.3
The third defendant did have a suspicion that the plaintiff was
involved in a Schedule 1 offence.
19.4
The third defendant had the suspicion as a result of the information
obtained from Deon Mkwanazi who implicated
inter alia
the
plaintiff as the ones who did it, with reference to the murder of the
deceased.
19.5
The suspicion that the third defendant had in this instance gave him
sufficient grounds to arrest the plaintiff.
19.6
That
suspicion arises at or near the starting point of an investigation of
which the obtaining of
prima
facie
proof
is the end.
[18]
19.7
The Third defendant was also made aware during the interview with
Mkwanazi that the plaintiff was the person who arranged
the weapon
that was used in the murder of the deceased.
19.8
The uncontested evidence of the third defendant was that he did not
merely believe Mkwanazi.
19.9
The information given by Mkwanazi however was corroborated by other
facts obtained by the investigating team.
19.10
The third defendant testified to what these
factors were, ie the
brown jacket that was found on the scene and which Mkwanazi mentioned
in the interview.
19.11
It is
noteworthy that the third defendant was only convinced that Mkwanazi
was telling the truth after weighing his version against
the other
objective facts obtained during the investigation and summarized
in the
discussion of the evidence
[19]
.
19.12
That the third defendant formed a reasonable
suspicion in his mind.
19.13
That the suspicion formed in this instance
was reasonable, even if
there may have been insufficient evidence to establish a
prima
facie
case against the plaintiff.
19.14
That the third defendant had a reasonable
suspicion that the
plaintiff committed a Schedule 1 offence.
19.15
Murder is a Schedule 1 offence.
19.16
The fact that the plaintiff was not at
the scene of the actual murder
is irrelevant.
19.17
The plaintiff could still have been charged
with murder on the basis
of common purpose. It is important to note that Deon Mkwanazi said
the following:
"dat hy, Aaron Sago, Rodger Johnson en Shaun
dit gedoen het."
19.18
That the third defendant in arresting the
plaintiff exercised his
discretion rationally and in good faith.
19.19
The Court should also not lose sight of
the fact that murder is a
very serious crime and it would be a sad day if murder suspects are
not arrested in circumstances where
a reasonable suspicion of their
involvement exists.
19.20
The fact
that the requirement is that the discretion must be exercised in good
faith means that peace officers are entitled to exercise
discretion
as they see fit, provided that they stay within the bounds of
rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that deemed optimal
by the court.
[20]
19.21
It is submitted that the third defendant
exercised his discretion
within the bounds of rationality.
19.22
The third defendant obtained reliable information
about an extremely
serious crime and only then arrested the plaintiff.
19.23
The
Plaintiff averred in his summons that the second and third defendants
were not entitled and/or authorised to arrest the plaintiff
and that
the arrest was not necessary to secure the plaintiff's attendance at
court.
[21]
19.24
That the defendants have shown that they
were entitled to arrest the
plaintiff and that it was necessary to arrest him to secure his
attendance at court. His arrest was
also authorised in terms of
Section 40(1)(b)
of the
Criminal Procedure Act.
19.25
That
the defendants made out a
prima facie
case regarding the
arrest.
19.26
The plaintiff however chose not to testify
to rebut the
prima
facie
case made out by the defendants.
19.27
One would have expected that the plaintiff
would and should have at
least presented evidence that he was not involved in the crime as
alleged and/or that the suspicion formed
by the arresting officer was
not reasonable.
19.28
The only evidence before Court is that
of the defendants and should
be accepted as there is no rebuttal from the plaintiff.
19.29
That the third defendant was an excellent
witness and should be found
a credible witness.
19.30
That it is clear that it was only the third
defendant that arrested
the plaintiff. This was also not contested in cross-examination. The
claim for unlawful arrest against
the second defendant should
therefore be dismissed with costs.
[20]
With regards to the claim of unlawful detention and deprivation of
liberty of the plaintiff,
it was submitted on behalf of the
defendants,
inter
alia,
that:
20.1
The third defendant's evidence on this aspect was that at the first
appearance bail is normally not granted in
Schedule 6 matters.
20.2
The third defendant could not testify on what happened further as he
was no longer involved in the investigation.
20.3
It was also his evidence that the matter was now in the hands of the
DPP
who decided not to withdraw the case against the plaintiff
at that stage.
20.4
It was clear from his evidence that the way forward against the
plaintiff was determined by the
DPP.
20.5
This was not explicitly denied by the plaintiff in cross-examination.
20.6
It was also not put to the third defendant in cross-examination that
the members of SAPS insisted on conducting
an identity parade.
20.7
The plaintiff chose not to testify and it is submitted that the Court
only has the evidence of the defendants on
the abovementioned
aspects.
20.8
One would have expected that the plaintiff at least would have
testified on how it happened that the matter was
postponed or why he
pleaded that the members of SAPS were opposing bail.
20.9
It is submitted that the Court should also take into consideration
the fact that onus of proof is on the accused
in Schedule 6 matters
to prove that it is in the interest of justice that he/she be
released on bail.
20.10
The third defendant was
confronted in cross-examination with the fact that there was
no
evidence against the plaintiff when the matter was taken to court,
inter alia because Mkwanazi was not formally declared a
section 204
witness. The third defendant was furthermore questioned on what the
investigators have done about the plight of the plaintiff from
09
June 2014 when he was arrested until his release.
20.11.
The defendants made the
following submissions in this regard:
20.11.1
It was never pleaded by the plaintiff that he was detained
unlawfully because SAPS did not have any evidence against the
plaintiff
or that they (the defendants) ought to have done more since
09th June 2014.
20.11.2
The defendants only pleaded that the criminal matter was
postponed as the investigators opposed bail and that they insisted on
conducting
an identity parade.
20.11.3
It is submitted that the plaintiff is bound by his pleadings
and should his claim for this reason alone be dismissed.
20.11.4
It is submitted that the fact that the criminal matter was
postponed and that bail was denied is not per se unlawful.
20.11.5
The plaintiff also chose not to testify on these aspects. He
should at least have testified on what happened at court during the
bail hearing to assist this court to determine if the further
detention was unlawful.
20.12
It was in any event the
uncontested evidence of the third defendant that when the docket
went
to court for the plaintiff's first appearance it was not only the
statement of Mkwanazi that was filed in the docket but also
the
statement of Tyopho aka Pantsi, who also implicated the plaintiff in
the murder. It was submitted that, although the decision
was in the
hands of the DPP, SAPS did thus have enough evidence to detain the
Plaintiff.
20.13
It was
submitted that the liability of the Police for detention post
court appearance should be determined on application of
the
principles of legal causation.
[22]
20.14
The Court
should therefore decide whether the harm associated with plaintiff's
detention post-court appearance can be attributed
to
the
unlawful arrest by the Police.
[23]
20.15
It was
submitted that the
De
Klerk
case
can only find application if
the initial
conduct of the police, i.e. the arrest was unlawful. The court in
De
Klerk
was
clear that an omission by the police at the first appearance of a
suspect does not create a further or new delict.
[24]
20.16
It was submitted that in this
instance the arrest was lawful and could the defendants
therefore not
be held liable for the further detention of the plaintiff after his
first court appearance.
20.17
It was reiterated that the
further detention of the plaintiff was at the instance of
the
DPP,
and that there was in any event enough evidence in the docket to
further detain the plaintiff after the first appearance.
[21]
With regards to costs, the following submissions were advanced on
behalf of the defendants:
21.1
Costs
for the abandonment of Claim 2
21.1.1
It is submitted that the fact that this claim (-the alleged assault-)
was abandoned boils down to a withdrawal of the claim.
21.1.2
It is trite that a party who withdraws his claim or defence, is
liable for the costs incurred by the other party.
21.1.3
It is submitted that defendants had to consult, plead, discover and
prepare their defence of plaintiff's claim 2 and are
therefore
entitled to costs in this regard.
21.1.4
It is therefore submitted that the plaintiff should pay the costs in
respect of the withdrawal of this claim.
21.2
Costs
of suit second defendant
21.2.1
It is submitted that the plaintiff did not make out any case against
the second defendant.
21.2.2
It submitted that costs should be awarded in favour of the second
defendant.
21.3
Costs of suit first and third defendants
21.3.1
It is trite that the normal rule is that costs should follow the
successful party.
21.3.2
It submitted that there is no reason why the Court should deviate
from the general rule.
21.3.3
The defendants submit that they acted lawfully and therefore should
be awarded the costs of the action.
A BRIEF EVALUATION AND
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
[22]
The objective facts, together with common cause facts as above-stated
can therefore be
summarised as follows:
22.1
The murder, which was the subject matter of the criminal
investigation led by Warrant officer Buys, at the time,
was committed
on or about 24 May 2014.
22.2
The third defendant became involved in this investigation on the 2nd
June 2014, pursuant to a request by Warrant
officer Buys.
22.3
The plaintiff was arrested on the 6 June 2014, by the third
defendant, based primarily on the information he obtained
from one
Deon Mkwanazi.
22.4
Mkwanazi was the first suspect to be arrested on the murder charges,
and the information was obtained from him
by the third defendant, on
5 June 2014 after his (Mkwanazi) arrest.
22.5
Mkwanazi initially denied any involvement in this crime, and hence
lied to the investigating officer, including
the third defendant.
22.6
After having been confronted by the third defendant, with information
the latter obtained from Mkwanazi's girlfriend,
the latter apparently
"broke down", and "confessed" his knowledge of,
and role, in, the murder crime. Interestingly,
yet importantly,
Mkwanazi did not say that he obtained and/or arranged the fire-arm
with which the deceased was subsequently shot,
nor that he shot the
deceased.
Although
he elaborately explained his role in this murder crime, the critical
aspects thereof, such as obtaining/ arranging the
fire-arm and
shooting the deceased, he ascribed to others, including the plaintiff
and one Aaron Sago.
22.7
Mkwanazi asked the third defendant how the police could help him. In
other words he wanted and/or expected something
in return for his
"cooperation" with the police, which essentially consisted
in naming other people as suspects in the
commission of this crime,
one of which was the plaintiff.
22.8
All these people whom the said Mkwanazi named, to wit, Aaron Sago,
Roger Johnson, and Benedict Khooe, also known
as McGyver, denied any
involvement in this murder crime. They denied their involvement in
this crime on or about the 5 June 2014,
before the arrest of the
plaintiff, and to the knowledge of the third defendant. Importantly
the said McGyver denied specifically
that the plaintiff arranged the
fire-arm with him, and that he, McGyver provided this fire-arm to
Roger Johnson.
22.9
It is common cause that upon his arrest on 6 June 2014, and
subsequently, the plaintiff denied any knowledge of
and /or role in,
the commission of this crime.
22.10
Subsequent to the appearance of Mkwanazi, Aaron Sago,
Rodger Johnson and the plaintiff in Court, as accused persons
on a
murder charge on the Monday, 9 June 2014, the Director of Public
Prosecutions
(DPP)
refused to make and/or use Mkwanazi as
state witness in terms of
section 204
of the CPA, 51 of 1977.
22.11
The
DPP
wanted Mkwanazi to enter into a plea bargain with the
State, which he, Mkwanazi, refused to do.
22.12
There was a meeting between the investigators in this murder crime,
including the third defendant and the prosecuting
members of the
DPP
later the afternoon of Monday, 9 June 2014, where after it became
clear to all concerned that, without Mkwanazi as a state witness,
the
State would not, and indeed did not, have any evidence incriminating
any of the accused in the commission of this crime, including
the
plaintiff, and hence had no case against them.
22.13
Notwithstanding the afore-stated, the criminal case against the
accused, including the plaintiff was postponed
until 17 June 2014,
with all the accused remaining in custody. This was ostensibly for
the hearing of a bail application.
22.14
On the latter date that matter was postponed again until 24 June
2014, without any further participation by, and
knowledge of, the
third defendant.
22.15
The case against the accused, including the plaintiff was withdrawn
except for Mkwanazi, who alone was subsequently
charged and stood
trial for murder, based on his version to the police, in this Court.
22.16
Mkwanazi was subsequently acquitted of the charges by this Court.
[23]
The first issue that falls to be determined is a crisp one: did the
third defendant act on a
reasonable suspicion that the plaintiff
committed an offence set out in Schedule 1 of the
Criminal Procedure
Act, 51 of 1977
?
[24]
It is trite that such an enquiry is objectively justiceable. The test
is not whether
the
arresting officer had reason to suspect, but whether the suspicion
is/was founded on reasonable grounds.
[25]
[25]
It is equally trite that an arresting officer is not required to
conduct a hearing before effecting
an arrest. The law only requires
such an arresting officer to have a reasonable
suspicion.
[26]
[26]
The meaning of "suspicion" has been described as follows:
"Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; 'I suspect but cannot prove'.
Suspicion
arises at or near the starting point of an investigation of which the
obtaining of a
prima
facie
proof
is the
end".
[27]
[27]
Within the context of this case the main issue in this regard is
whether the third defendant,
had the requisite
prima
facie
proof,
based primarily on the information obtained from Mkwanazi, which
would constitute a suspicion, which
could
objectively be said/described
to
be
reasonable
in
the
circumstances. In this regard this Court also had regard to what was
said regarding a reasonable suspicion in Mabona & Another
v
Minister of Law & Others
[28]
:
"The
test of whether
a
suspicion is reasonably
entertained
within the meaning of
s 40
(1) (b) of the
Criminal Procedure
Act 51 of 1977
is objective: would
a
reasonable man in the
particular defendant's position and possessed of the same information
have considered that there were good
and sufficient grounds for
suspecting
that the plaintiffs were guilty of the
offence or offences for which he sought to arrest the plaintiffs. It
seems that in evaluating
his information
a
reasonable man
would bear in mind that the section authorises
drastic
police action. It authorises an arrest on the strength of
a
suspicion and without the need to swear out
a
warrant, ie
something which otherwise would
be an invasion of
private rights and personal liberty. The reasonable man will
therefore analyse and assess the quality of the information at
his disposal critically and he will not accept it lightly or 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. This is not to say that
the information at his disposal must be of 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."
[28]
On the objective and common cause facts of this case I cannot make
such a finding. Mkwanazi
was right at the outset, found to be a liar,
on his own version. The people whom he named as "role-players"
in this murder
crime, all denied any involvement in this crime,
including the plaintiff and to the knowledge of the third defendant.
The person
whom Mkwanazi named as "McGyver" with whom the
plaintiff allegedly arranged for a fire-arm, and which was allegedly
handed
to one Rodger Johnson, flatly denied these allegations, to the
knowledge of the third defendant, and before he effected the said
arrest of the plaintiff. The said fire-arm, a crucial piece of
evidence, which could have linked the suspects to this crime, was
missing and could not be traced, to date. Mkwanazi's information
obtained by the third defendant, also squarely implicated the
said
McGyver in the commission of this offence, importantly with regards
to the arrangement of the fire-arm which was allegedly
used to shoot
the deceased. Whilst the third defendant used that information to
arrest the plaintiff herein, he inexplicably did
not arrest McGyver
in connection with this offence, or any other offence for that
matter. All of these objective facts militate
against any reasonable
suspicion that could have been harboured by the arresting officer,
the third defendant, at the time of effecting
the arrest of the
plaintiff.
[29]
I find accordingly.
[30]
The second issue regarding the unlawful detention is less complicated
based on my above-stated
finding.
[31]
It is trite
that the authority of the police to detain a person is inherent in
their discretionary power to arrest. The purpose
and objective of the
arrest is to bring the suspect before a court. Once a detainee is
brought before court, that authority is
exhausted. The further
detention of a suspect is within the discretion of the court and
requires a judicial evaluation to determine
whether
it is in
the interest of justice to release the suspect on bail.
[29]
[32]
It therefore follows, given my afore-stated finding, that the
detention following the unlawful
arrest of the plaintiff by the third
defendant on the 6 June 2014 until his first court appearance on 09
June 2014 is/was unlawful.
[33]
The crisp
issue for determination in this regard is whether the plaintiff's
further detention, post court appearance can be attributed
to the
unlawful arrest of the plaintiff by the third defendant, of which
Warrant Officer Buys and the second defendant formed part
of the
investigation team of the police in this matter.
[30]
[34]
It is also
trite that the question whether or not the unlawfulness of a
detention
ceases upon
a remand order by a Magistrate has to be answered with regard
to the
peculiar facts of each case.
[31]
[35]
It is common cause, based on the evidence of the third defendant,
that bail is/was not
normally granted at the first appearance of
suspects arrested on a Schedule 6 offence, such as murder. He
therefore knew and/or
foresaw the possibility, that the plaintiff
would be further detained after his first appearance in the
Magistrate's Court on the
murder charge.
[36]
It is also common cause that that criminal case, in which the
plaintiff was an accused
pursuant to his arrest by the third
defendant, was indeed postponed from 9 June 2014 to 17 June 2014 for
a formal bail application
hearing to be held. It therefore follows,
and it is common sensical that bail for the accused persons,
including the plaintiff,
was opposed by the police investigating
team, including both the second and the third defendants.
[37]
It is also common cause that both the second and third defendants, at
all relevant times,
acted in the course and scope of their employment
with the first defendant.
[38]
It is also common cause that the plaintiff then appeared on 24 June
2014, when all charges
were withdrawn against him (and the other
accused, except Mkwanazi, as above-stated).
[39]
This whole period that the plaintiff spent in detention, from 6 June
2014 until 24 June
2014, is directly linked to his arrest effected by
the third defendant on 6 June 2014, and the police's opposition to
the accused,
including the plaintiff, being released on bail at all
relevant times, before and up to 24 June 2014.
[40]
In the circumstances I find that the detention of the plaintiff from
6 June 2014 until
24 June 2014 was unlawful and in violation of his
constitutionally guaranteed rights to freedom and security of the
person as set
out in section 12 of the Constitution of the Republic
of South Africa.
In
the result the following order is hereby made:
1.
The plaintiff's arrest on 6 June 2014 by the third defendant
acting
in the course and scope of his employment with the first defendant is
unlawful.
2.
The plaintiff's detention by the third defendant and/or other
employees of the first defendant from the 6
th
of June 2014
until the 24
th
of June 2014 is unlawful.
3.
The defendants are ordered to pay the plaintiff for his proven
damages, the one paying the others to be absolved.
4.
Costs stand over for later determination by the Court hearing
the
plaintiff's claim for damages.
JJ
MOSES
ACTING JUDGE
OF
THE HIGH COURT
NORTHERN CAPE DIVISION
For
the Plaintiff:
Adv. C.F. Van Heerden
Instructed
by:
Towel and Groenewaldt Attorneys
For
the Defendants:
Mr. P. Visagie
Instructed
by:
The State Attorney
[1]
51 of 1977
[2]
See Section 40(1)(b) of the CPA, 51 of 1977
[3]
Duncan v Minister of Law and Order
[1986] ZASCA 24
;
[1986] 2 All SA 241
(A) at para
8.
[4]
WOJI v Minister of Police
2015 (1) SACR 409
(SCA) at Para 18.
[5]
Powell N.O. v Van der Merwe N.O & Others
2005 (5) SA 62
(SCA) at
para 36
[6]
WOJI above n 4
[7]
Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA)
[8]
Minister of Safety and Security v Sekhoto
2011 (5) SA 367
(SCA) at
paras 42 - 44
[9]
Minister of Law and Order v Kader
1991 (1) SA 41
(A) at para 51 A -
C
[10]
Magagula v Minister of Safety and Security (A68/2012 ; 33724/2006)
(2016] ZAGPPHC 611 at para 17, see also Minister of Safety
and
Security v Ndlovu
2013 (1) SACR 339
(SCA) at para 16
[11]
Tyokwana above n 7
[12]
Duncan above n 3
[13]
[2008] ZACC 3
;
2008 (6) BCLR 601
(CC), at para 24
[14]
Louw & Another v Minister of Safety & Security 2006 (2) SACR
178 (T)
[15]
Mabona above n 13
[16]
2019 (12) BCLR 1425
(CC) at para 63
[17]
Duncan above n 3.
[18]
Powell N.O. and Another v Van der Merwe N.O. and Others above n 5;
see also Woji v Minister of Police above n 4
[19]
See: Defendants' Heads of Argument, p. 5, par. 4.15
[20]
Sekhoto above n 8
[21]
See Plaintiff's Particulars of Claim, Index of Pleadings, par 9.
[22]
De Klerk above n 17, at para. 63
[23]
Ibid at para 16
[24]
Ibid at para. 19
[25]
Duncan v Minister of Law and Order
[1986] ZASCA 24
;
[1986] 2 All SA 241
(A), n 3
above
[26]
National Commissioner of Police & Another v Coetzee 2013(1) SACR
358 (SCA); See also Section 40(1)(b)of the CPA 51 of 1977.
[27]
Powell NO & Others v Van Der Merwe & Others
2005 (5) SA 62
(SCA) at para 36 (see also n 5 above)
[28]
Mabona & Another v Minister of Law and Order and Others
1988 (2)
SA 654
654 (SE) at 658 E-H.
[29]
Minister of Safety and Security v Tyokwane 2015(1) SACR 597 (SCA);
see also Minister of Safety and Security v Sekhoto 2011(5)
SA 367
(SCA) at paras 42-44.
[30]
De Klerk v Minister of Police 2019 (12) BCLR 1425 (CC)
[31]
Minister of Safety and Security v Tyokwane above n 29