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[2016] ZAGPPHC 277
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Minister of Police v Ndaba and Others (A553/2014) [2016] ZAGPPHC 277 (6 May 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: A553/2014
Case
numbers in the court below:
48208/2012,
48209/2012, 49490/2012
Not
reportable
Not of
interest to other judges
Revised
DATE:
6/5/2014
IN
THE MATTER BETWEEN
MINISTER
OF
POLICE APPELLANT
AND
SIPHIWE
NDABA 1
ST
RESPONDENT
MALIBONGWE
MAZIBUKO 2
ND
RESPONDENT
SIBONISENI
PHILIP
MAZIBUKO 3
RD
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1]
The three respondents, as plaintiffs, each instituted a damages
action against the appellant, as defendant, to be compensated
for
what they alleged to be their unlawful arrest and detention at about
19:00 or 20:00 on Saturday 24 September 2011.
[2]
The three respondents were travelling together, with another male
companion, in the same motor vehicle, driven by the third
respondent
at the time, when they were all arrested and detained together.
[3]
They were arrested on the N3 highway near Heidelberg at about 19:30
on the Saturday evening, 24 September 2011, and detained
at the
Heidelberg police station at about 20:10 the same evening.
On
Monday 26 September 2011, at about 14:00 they were transported
to the Lenasia police station where they arrived at about
16:00 on
the same day.
[4]
The next morning, Tuesday 27 September 2011, they were taken to the
Lenasia Magistrates' Court and they were released by that
court at
about 14:00 on the Tuesday afternoon. On the weight of the
evidence, the prosecutor insisted on an identification
parade to be
held, which could not be arranged timeously by the investigating
officer, with the result that the prosecutor was
not prepared to
enrol the matter and this led to the release of the respondents.
[5]
The three damages actions instituted by the three respondents, as
plaintiffs, were based on the alleged unlawful arrest and
detention,
as I have explained.
[6]
The three actions were consolidated before the consolidated action
came before the court
a quo
.
[7]
The fourth arrestee did not institute a damages action.
[8]
It is common cause that the arrest took place without a warrant, so
that the provisions of section 40 of the Criminal Procedure
Act, Act
51 of 1977 ("the CPA") to which I will refer
hereunder, came into play.
BRIEF
OVERVIEW OF THE BACKGROUND FACTS AND REFERENCE TO SECTION 40 OF THE
CPA
[9]
For reasons which will appear later, it is not necessary, for present
purposes, to carefully analyse the underlying facts leading
to the
arrest and following thereupon, but the facts are not without
relevance either, so that a brief summary is required.
[10]
On 6 December 2011, six men were involved in an armed robbery at a
house in Lenasia. Eye witnesses identified the
vehicle
they were travelling in as a blue Nissan Tiida with registration
number V[…].
Armed
with this information, the investigating officer, Warrant Officer
Motsemane Frans Baloyi ("Baloyi") consulted the
relevant
records, and established that the owner of the vehicle was the third
respondent. The address of the latter, appearing
in the
records, turned out to be a false address, which Baloyi could not
trace.
[11]
Baloyi then, on advice of his superiors, put a notice on the internal
police communication network to seek assistance of other
police
officers in tracing the vehicle. The process was referred to in
the trial as "putting the vehicle on circulation".
[12]
The defendant, who had the duty to begin, because of the
onus
on him to prove that the arrest was lawful, then called Constable
Motseko ("Motseko"), who was attached to the Gauteng
Flying
Squad, Vaalrand, of the South African Police, as a witness.
He testified that he was on duty on the N3 highway
on
24 September 2011 (the Saturday) in the company of another
police constable, Nkonza. They received a radio message
that
the particular blue Nissan with the aforesaid registration number had
just passed a particular tollgate, and that such vehicle
was linked
to an armed robbery that occurred in Lenasia, involving six male
perpetrators. Motseko and Nkonza got onto the
highway and saw
the vehicle. They stopped the vehicle and the driver got out.
It is common cause that it was the third
respondent. He said
that he was the owner of the vehicle but denied that he was involved
in the armed robbery. He said
that since he purchased the
vehicle (which appears to have been in November 2010) he was the only
driver of the particular vehicle.
There were four males in the
vehicle including the third respondent. According to Motseko,
the third respondent gave him
his particulars, but informed the other
passengers not to give their addresses to the police. Motseko
played the radio communication
to the third respondent to listen to
the message, and thereafter arrested the driver and the other three
occupants. Obviously,
they included the first and second
respondents.
[13]
At the Heidelberg police station, Motseko informed the arrestees that
they would be kept there until the Lenasia police could
take over.
[14]
Under cross-examination, Motseko gave the reasons why he arrested the
four occupants:
(i) the vehicle fitted the description of the one
involved in the armed robbery;
(ii) the driver identified himself as the owner and
stated that he was the only person who had driven the vehicle and no
one else
had ever driven the vehicle since he purchased it in
November 2010;
(iii) the radio message made reference to six male
perpetrators, and when he stopped the vehicle there were four males
occupying
the vehicle;
(iv) the driver of the vehicle advised the other
occupants not to give the police their addresses.
In this regard, I add that the three respondents, when
they testified as plaintiffs, denied that the third respondent had
instructed
the others not to furnish their addresses, but this denial
was not put to Motseko in cross examination and the learned
Judge,
when analysing the evidence, and emphasising unsatisfactory
aspects of the evidence of the respondents, accepted the evidence of
Motseko.
[15]
I consider it unnecessary to analyse the evidence of the three
respondents in detail. The learned Judge, correctly with
respect, pointed out several inaccuracies in their evidence and
contradictions of a material nature. Importantly, they all,
broadly, corroborated the evidence of Motseko about the arrest and
detention.
[16]
In a comprehensive judgment, the learned Judge considered whether the
arrest was lawful. He referred to the provisions
of section
40(1)(b) and (e) of the CPA, which read as follows:
"
Arrest by peace-officer without warrant
40(1) 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;
(c) ...
(d) ...
(e) who is found in possession of anything which the
peace-officer reasonably suspects to be stolen property or property
dishonestly
obtained, and whom the peace officer reasonably
suspects of having committed an offence with respect to such thing."
[17]
In his well-reasoned judgment, and with reference to the relevant
authorities, including the leading case of
Minister of Safety and
Security v Sekhoto
2011(1) SACR 315 (SCA), he found that all the
jurisdictional requirements for a lawful arrest without a warrant had
been established
by the appellant, as defendant, and concluded that
the action of the respondents, as plaintiffs, based on an alleged
unlawful arrest
could not succeed.
THE
DETENTION
[18]
This appeal turns on the proper interpretation of the provisions of
section 50 of the CPA, and more particularly the provisions
of
section 50(1)(d)(i). The question to be decided involves the
provision, in section 50, that an arrested person must be
brought
before a lower court not later than 48 hours after the arrest.
[19]
The first portion of section 50, leading up to subsection (d)(i),
provides as follows:
"
Procedure after arrest
50(1)(a) Any person who is arrested with or without
warrant for allegedly committing an offence, or for any other reason,
shall
as soon as possible be brought to a police station or, in the
case of an arrest by warrant, to any other place which is expressly
mentioned in the warrant.
(b) A person who is in detention as contemplated in
paragraph (a) shall, as soon as reasonably possible, be informed of
his or her
right to institute bail proceedings.
(c) Subject to paragraph (d), if such an arrested person
is not released by reason that –
(i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of
section 59 or 59A (
my note
: these sections do not apply for
present purposes)
he or she shall be brought before a lower court as soon
as reasonably possible, but not later than 48 hours after the arrest.
(d)
If the period of 48 hours expires
–
(i)
outside ordinary court hours or on a day which is
not an ordinary court day, the accused shall be brought before a
lower court not
later than the end of the first court day
;
(ii) ..." (Emphasis added.)
[20]
Subsection (2) of section 50, containing the relevant definitions,
reads as follows:
"(2) For purposes of this section –
(a) '
a court day
' means a day on which the court
in question normally sits as a court and
'
ordinary court day
' has a corresponding meaning;
and
(b) '
ordinary court hours
' means the hours from
9:00 until 16:00 on a court day."
[21]
On the basis of these provisions, the position is then as follows:
the respondents were arrested after 19:00 on Saturday 24
September
2011 and detained, as the learned Judge found, at 20:10 that evening
in the Heidelberg police station.
The
48 hours after their arrest would then have expired, at the earliest,
after 19:00 on Monday 26 September 2011.
The
48 hours would then have expired "outside ordinary court hours"
in which case "the accused shall be brought before
a lower court
not later than the end of the first court day"
(section 50(1)(d)(i)).
[22]
In his evidence during the trial, Investigating Officer Baloyi (who
was, of course, based at Lenasia and not at Heidelberg)
testified
that he was notified by the Heidelberg police on Monday 26 September
2011 about the arrest of the people found travelling
in the vehicle
that Baloyi was looking for.
[23]
Baloyi testified that he could not get a police vehicle made
available to him right away, but when he got the vehicle, he
travelled to Heidelberg and arrived there at about 14:00 on Monday
26 September. He met the detainees, disposed of the
relevant paper work so that they could be released into his custody,
and told them that they had to go to the Lenasia police station.
They arrived at this destination at about 16:00.
[24]
Upon arrival, he informed the detainees that he would take them to
court the next day, which he did, early in the morning of
Tuesday 27
September. This evidence is undisputed.
[25]
I have already mentioned that the prosecutor at the Lenasia court did
not want to enrol the matter because he wanted an identification
parade to be held and that the respondents, as accused, were released
by the court at about 14:00 on the Tuesday.
[26]
When the question of unlawful detention of the respondents came up
for consideration during the trial, the learned Judge was
referred
to, and followed, the approach adopted by this court in
Prinsloo v
Nasionale Vervolgingsgesag en Andere
2011 2 SA 214
(GNP).
[27]
In that case, Prinsloo, suspected of having murdered his wife, was
arrested at 16:30 on Wednesday 18 November 2009, so
that the 48
hours, on the strength of the provisions of section 50 of the CPA,
would have expired after court hours, at 16:30 on
Friday 20 November
2009.
Shortly
after the arrest, and presumably later on 18 November, although
these details do not appear from the judgment, the
arrestee's
attorney approached the investigating officer, Inspector Mashilo, who
was based in Pretoria North, in which area of
jurisdiction the arrest
took place, with a view to arranging for an earlier appearance in the
court but the inspector, unreasonably,
indicated that he had other
work to attend to and would only take the prisoner to court on Monday
23 November. This court
was approached on an urgent basis, and
on Friday 20 November it was ordered that the arrestee should be
released subject to
an appearance on the Monday before the court for
purposes of a bail application. Mashilo, who was the second
respondent,
was ordered to pay the costs of the application on the
scale as between attorney and client.
[28]
The learned Judge, in a comprehensive judgment handed down well after
the order was made in the urgent court, held that the
relevant
statutory provision should be interpreted in such a way that, where
the 48 hour period expires after court hours or on
a day which is not
an ordinary court day, the arrested person ought to be brought to
court during the first court day after the
arrest.
At
221B the learned Judge says the following:
"Ek is dus van mening dat op 'n behoorlike
interpretasie van artikel 50(1)(d) van die Strafproseswet, 'n
gearresteerde persoon,
indien die 48 uur verstryk buite gewone hofure
of op 'n dag wat nie 'n gewone hofdag is nie, voor die hof gebring
moet word gedurende
en nie later nie as die einde van die eerste
hofdag na sy arrestasie."
In
a well considered judgment, the learned Judge motivates his decision
as follows at 220F 221A:
"In hierdie geval het die 48 uur verstryk om 16h30
op Vrydag 20 November 2009. Na my mening beteken die
verwysing
na eerste hofdag nie 'n hofdag na verstryking van die 48
uur nie, maar 'n hofdag in die eerste gedeelte van die 48 uur.
Daar kan geen ander interpretasie van hierdie subartikel wees nie.
'n Wet moet juis so uitgelê word dat dit die
persone
waarop dit van toepassing is so min moontlik beswaar. My
interpretasie hierbo is die mins beswarende interpretasie
ten opsigte
van persone wat geaffekteer word deur hierdie artikel. Verder
word vermoed dat die wetgewer die openbare belang
wil bevorder.
Dit sal teen die openbare belang wees indien 'n persoon vir
langer as 48 uur aangehou kan word onder hierdie
omstandighede.
Die wetgewer sou uit die aard van die saak nie 'n geregverdigde
inbreukmaking op 'n persoon se reg op vryheid,
wat beskerm word in
die Grondwet, onnodig wou inhibeer en op inbreuk maak nie. Die
doel van die wetgewing is baie duidelik,
naamlik dat 48 uur die
absolute maksimum periode is vir aanhouding ingevolge artikel 50."
Authorities
relied upon by the learned Judge are mentioned in footnotes 4 and 5
on p220 of the judgment.
[29]
Relying on this judgment, the learned Judge held that the respondents
were unlawfully detained from Monday 26 September 2011
at 20:10 (when
the 48 hours expired) until their release on Tuesday
27 September at 14:00.
[30]
In his reasoning leading up to this conclusion, the learned Judge
also brought the provisions of section 50(1)(d)(ii) into
the
equation. This deals with the situation where the arrested
person cannot, because of his or her physical illness or other
physical condition, be brought before a lower court when the 48 hour
period expires. Provision is then made for the
prosecutor to
apply to the court, if not before the expiration of the period of 48
hours, then on the next succeeding court day,
for the arrested person
to be detained at a place specified by the court and for a period so
specified for recuperation purposes
before being brought to court.
[31]
The learned Judge said the following in paragraph 43 of his judgment:
"It also seems to me that this interpretation (
my
note
: the one in
Prinsloo
) is supported by the fact that
in the immediate subsection 50(1)(d)(ii) which follows, the statute
refers to instances where the
person so detained may be brought to
Court, subject to certain specified conditions such as physical
illness '... on, the next
succeeding Court day'. The notion
that where the period of 48 hours after arrest expires after
Court hours on a Court
day in terms of section 50(1)(d)(i), that the
detainee may be brought to Court the next succeeding Court day is
false. Resort
to the next succeeding Court day is only
applicable to instances which fall under section 50(1)(d)(ii).
I therefore
agree with the interpretation and approach by the
Court in
Prinsloo v Nasionale Vervolgingsgesag supra
and will
follow it."
In
my respectful view, there was no justification for relying on the
provisions of section 50(1)(d)(ii) which deal with an entirely
different state of affairs.
[32]
It is of some relevance, as will appear later, that the learned Judge
also dealt with the evidence of Baloyi to the effect
that he could
only transport the detainees later in the afternoon on Monday
26 September. In paragraph 44 of his judgment,
the learned
Judge said the following:
"According to Baloyi, the plaintiffs could not be
taken to court on Monday due to unavailability of transport.
They could
only be transported at 14h00 on Monday, an hour or two
before the court adjourns. As a result, they had to spend one
more
night in custody. This clearly cannot be an excuse to
prolong their incarceration. In my view they should have been
taken to court on Monday 26. Consequently, they were
unlawfully detained from Monday 26 September 2012 (
sic,
it is 2011) at 20h10 until their release on Tuesday 27 at 14h00
as their further detention was neither authorised by court
nor was
their case on the roll awaiting hearing."
These
remarks were made by the learned Judge after he concluded that the
judgment in
Prinsloo
was correct, namely that the prisoner
should be taken to court on the first court day after the arrest.
Moreover, Baloyi
did not testify that the plaintiffs (now
respondents)
could not be taken to court on Monday due to
unavailability of transport
. He simply said that he only
got the news of the arrest on Monday, had to wait for a police
vehicle and then travelled to
Heidelberg where he arrived at 14:00
and after the paper work and other formalities he managed to reach
Lenasia police station
by 16:00. He then informed the detainees
that they would go to court the next day.
[33]
After dealing with the question of
quantum
, the learned Judge
made the following order:
"1. The plaintiffs' action for unlawful arrest is
dismissed.
2. The plaintiff's action for unlawful detention
succeeds in part.
3. The defendant is ordered to pay each plaintiff an
amount of R10 000,00 as damages for unlawful detention.
4. The defendant is ordered to pay 50% of the
plaintiffs' taxed costs."
THE
JUDGMENT IN
MASHILO AND ANOTHER V PRINSLOO
2013(2) SACR 648
(SCA)
[34]
The present case which is the subject of the appeal which came before
us, was heard in March 2014, and the judgment handed
down on 2 April
2014.
[35]
The judgment in
Mashilo and Another
, mentioned above, was
heard in August and September 2012 and, as appears from the citation,
already reported in 2013. However,
the learned Judge in the
matter before us, was clearly not referred to that judgment, to which
I will refer as "
Mashilo and Another
". This
was the
Prinsloo
case to which I have referred.
[36]
When leave to appeal was refused in the
Prinsloo
case
(evidently the appeal was only directed at the costs order granted
against
Mashilo
) the latter and the prosecuting authority
applied to the Supreme Court of Appeal for leave to appeal which was
granted, and the
appeal was upheld at the same time.
The
basis upon which the matter came before the Supreme Court of Appeal
("SCA") is described as follows in the judgment
at 651d g:
"The application for leave to appeal did not
pertain to the earlier order by the High Court, but to the subsequent
order releasing
Prinsloo and the costs order against Mashilo.
As Prinsloo had already been released, the essence of the application
for leave
to appeal was not to set aside such an order. Such an
exercise would have been academic. It was directed at the costs
order made against Mashilo. In this court, counsel for Prinsloo
conceded that the costs order against Mashilo should not
have been
made, as Prinsloo had abandoned his prayer for costs against
Mashilo. But because that costs order was based on
an alleged
misinterpretation by the court below of the provisions of section 50
of the Criminal Procedure Act, counsel for
the appellants submitted
that this court should consider the merits of the matter. What
was sought to be achieved was a definite
interpretation of that
section ..."
The
court then proceeded to interpret sections 50(1) and (6).
Subsection
(6), with respect, is not directly in point for present purposes.
It provides:
"(6)(a) At his or her first appearance in court a
person contemplated in subsection (1)(a) who –
(i) was arrested for allegedly committing an offence
shall, subject to this section and section 60 –
(aa) be informed by the court of the reason for his or
her further detention; or
(bb) be charged and be entitled to apply to be released
on bail; ..."
Section
60 deals with bail applications.
[37]
In
Mashilo and Another
, the learned Judge of Appeal says the
following at 653c f:
"
Section 50(d)(i) was clearly intended to extend
the 48-hour outer limit during which an arrested person could be
detained
. That is made plain from the language of the
subsection and has, during the last thirty five years since the
introduction
of the Act, always been understood to be so. This
is clear from one of the earlier, foremost authorities on criminal
law
and procedure, namely the work by Lansdown & Campbell
South
African Criminal Law and Procedure
vol 5:
Criminal Procedure
and Evidence
op cit
at 299 300. See also the
interpretation given by Eksteen J in
Hash and Others v Minister of
Safety and Security
[2011] ZAECPEHC 34 in paragraph 71. The
legislative purpose
in extending the 48 hours
, if it is
interrupted by a week end, appears to me to be fairly obvious.
It is because the logistics of ensuring an
appearance before court
over a week-end are difficult. Put differently, it is difficult
to co ordinate police, prosecutorial
and court administration
and activities over a week-end. This was especially true at the
time that the legislation was introduced.
It continues to be
true today." (Emphasis added.)
[38]
After dealing with the interpretation adopted by the learned Judge in
the court below, in the urgent court, the learned Judge
of Appeal
said the following at 653i j:
"This
interpretation was erroneous. In arriving at his conclusion the
learned Judge in the court below failed to consider
not only what is
set out in the preceding paragraphs, but also in having regard to
constitutional values. He failed
to take into account
section 35(1)(d)(ii) which, itself, recognises that the 48-hour
period may be extended if interrupted by a
week-end."
Here
the learned Judge of Appeal refers to section 35(1)(d) of the
Constitution which reads as follows:
"Everyone who is arrested for allegedly committing
an offence has the right –
...
(d) to be brought before the court as soon as reasonably
possible, 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 expire outside ordinary
court hours or on a day which is not an ordinary court day."
(Emphasis added,)
This
provision also clearly flies in the face of the interpretation
preferred by the learned Judge in the court below in
Prinsloo
,
and followed by the learned Judge in the court below in the matter
before us: in this case, the 48 hours expired on Monday
evening
and the arrested persons were taken to court the next morning, namely
"the first court day after the expiry of
the 48 hours"
as directed by the Constitution.
[39]
In Hiemstra's
Criminal Procedure
(loose leaf edition) at 5 30,
the learned author recognises that the decision by the court below
was overturned by the SCA
in
Mashilo and Another
and observes:
"In section 50(1)(d)(i) the 'first court day' means
the first court day after expiry of the 48 hour period."
[40]
In conclusion, however, it seems to me to be appropriate to make the
remark that the judgment in
Mashilo and Another
has a
proverbial "sting in the tail". It seems to
provide that the arrested person ought not to be detained
for the
entire period if he can be brought to the court earlier.
At
654a-c the following is stated by the learned Judge of Appeal:
"The matter could have been decided in the court
below without resorting to a strained interpretation of section
50(1)(d).
The outer limit of 48 hours envisaged in the
subsection does not, without more, entitle a policeman to detain
someone for
that entire period without bringing him to court if it
can be done earlier. The subsection obliges police authorities
to
bring someone before court as soon as is reasonably possible.
This is so, whether or not the 48 hours expired before
or during
the week-end. Expedition relative to circumstances is what is
dictated by the subsection and the Constitution.
Deliberately
obstructive behaviour, as was evidenced by
Mashilo
, is not
tolerated. On that basis alone the court below could quite
easily have ordered that he be brought to court immediately
to
facilitate a bail application."
[41]
In this regard, I have mentioned the unreasonable and obstructive
attitude displayed by Mashilo. When he was approached
by the
attorney at an early stage (presumably already on the Wednesday) he
said he was busy with other matters and would only take
Prinsloo to
court on the Monday. This conduct was criticised by the SCA, as
appears from the quote above.
As
far as the conduct of Investigating Officer Baloyi in the present
case is concerned, I see no basis of finding "deliberately
obstructive behaviour" on his part, neither did I understand
the learned Judge to come to such a conclusion. If
he did, I am
of the respectful view that he was wrong. In my view, Baloyi
acted with due expedition and, in taking the respondents
to court on
the Tuesday morning, he clearly complied with the requirements of
section 35(1)(d)(ii) of the Constitution and also
with the approach
adopted by the SCA.
[42]
Despite its finding of "deliberately obstructive behaviour"
on the part of Mashilo, the SCA nevertheless upheld the
appeal.
In the present case, where the learned Judge adopted the same
interpretation, rejected by the SCA, this appeal also
ought to be
upheld.
[43]
As far as the
dictum
by the SCA about "deliberately
obstructive behaviour" is concerned, it seems to be
intended to guide police officers
without detracting from the correct
interpretation of section 50(1)(d)(ii). It appears that each
case will have to be treated
on its own merits, and that an arrested
person, relying on "deliberately obstructive behaviour" on
the part of the police
officer, may, in a proper case, approach the
court for assistance and relief before expiry of the 48 hour
period with a view
to obtaining immediate release and/or assistance
to facilitate a bail application.
COSTS
[44]
In the present matter, at least a portion of the case dealt with the
interpretation of section 50(1)(d)(ii). The decision
in
Mashilo
and Another
was not brought to the attention of the learned
Judge. The appeal before us was also not opposed by the
respondents.
As
to costs, the following was said in
Mashilo and Another
by the
learned Judge of Appeal at 654f g:
"That then brings me to the issue of costs.
The present appeal was brought by the NPA in order to gain clarity on
the
proper interpretation of section 50(1) and (6) of the Criminal
Procedure Act. To the extent that the interpretation by the
court below has been corrected, its appeal succeeds. The appeal
by Mashilo also succeeds, as the costs order against him
has been set
aside. It would be unfair to burden Prinsloo with the
costs of an appeal, pursued for the present purposes.
An
appropriate costs order therefore would be that there should be no
order as to costs."
[45]
In the present case, it seems to me that, where the respondents, as
plaintiffs, failed with their claim for damages based on
unlawful
arrest, they ought to be held responsible for a portion of the trial
costs. I see no reason to deviate from the
50% approach adopted
by the learned Judge.
However,
for the reasons mentioned, I am of the view that the respondents
ought not to be ordered to pay the costs of the appeal.
THE
ORDER
[46]
I make the following order:
1. The appeal is upheld.
2. There is no order as to costs with regard to the
appeal.
3. The order of the court below is set aside and
replaced with the following:
"The claims of the plaintiffs are dismissed, and
the plaintiffs, jointly and severally, are ordered to pay 50% of the
defendant's
taxed or agreed costs."
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
A553/2014
I
agree
N
RANCHOD
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
I
agree
H
J FABRICIUS
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 10 FEBRUARY 2016
FOR
THE APPELLANT: K M MOKOTEDI
INSTRUCTED
BY: THE STATE ATTORNEY
NO
APPEARANCE FOR THE RESPONDENTS