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[2016] ZAGPPHC 942
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Van Wyk and Another v Minister of Police and Another (A617/15) [2016] ZAGPPHC 942 (17 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: A617/15
17/11/2016
Reportable: No
Of interest to other
judges: No
Revised.
In the
matter between:
JACOBUS
J VAN
WYK
1
st
Appellant
LINDY
POTGIETER
2
nd
Appellant
and
THE
MINISTER OF
POLICE
1
st
Defendant
THE
DPP,
GAUTENG
2
nd
Defendant
JUDGMENT
AC
BASSON, J
Introduction
[1]
This
is an appeal against the judgment of the court
a
quo
dismissing the two appellants’ claims for damages resulting
from an arrest without a warrant and their subsequent detention.
The
first defendant’s (the Minister of Police) defence is founded
upon the provisions of section 40(1)(a) of the Criminal
Procedure Act
(“the CPA”).
[1]
The
two appellants were arrested on a suspicion of having been in
possession of an illegal substance.
[2]
Section 40(1)(a) and section 40(1)(h) of
the CPA are relevant to the arrest in this matter. Section
40(1)(a)
of the CPA reads as follows:
“
40
Arrest by peace officer without warrant
(1)
A peace officer may without warrant arrest any person -
(a)
who commits or attempts to commit
any offence in his presence;”
Section 40(1)(h )
provides that:
"(1)
A peace officer may without warrant arrest any person—
. .
.
(h)
who is reasonably suspected of committing or of having committed an
offence under any law governing the making, supply, possession
or
conveyance of intoxicating liquor or of dependence-producing drugs or
the possession or disposal of arms or ammunition."
Background facts
[3]
It was common cause that the two appellants
Mr Jacobus van Wyk (“Van Wyk”) and Ms Lindy Potgieter
(“Lindy”)
were arrested on Thursday 8 August 2013 without
a warrant of arrest and thereafter detained for approximately 3½
days at
the SAPS Hercules. They were detained over a long
weekend with the public holiday known as Women’s day on Friday
the
9
th
of
August 2013. The two appellants were
arrested together with two other individuals a one Bianca Potgieter
(“Bianca”)
and a one Morris.
[4]
On Monday 12 August 2013 the second
defendant issued a certificate of
nolle
prosequi
in respect of both appellants
whereafter they were released.
[5]
The appellants claimed damages for the
following:
(i)
The first claim is against the first
respondent for their alleged wrongful arrest and detention;
(ii)
The second claim is also against the first
respondent for malicious prosecution; and
(iii)
The third claim is against the second
respondent (the Director of Public Prosecutions) for the alleged
unlawful refusal of bail.
Brief summary of the
common cause facts
[6]
It was common cause that on the evening of
8 August 2013 the four occupants in the vehicle (the two appellants,
Bianca and Morris)
were arrested by Sergeant Van Rooyen (“Van
Rooyen”) and Warrant Officer Potgieter (“Potgieter”).
The plaintiffs
testified that they were on their way to Midas to buy
vehicle spares. Lindy was the driver of the vehicle. Bianca was
seated next
to her in the front. The two men (Van Wyk and Morris)
were seated at the back.
[7]
There is some dispute about whether the
vehicle was stopped by the police officers or whether the car was
stationary when the police
officers. According to the appellants they
had stopped next to the road at the insistence of Bianca who wanted
to speak to her
nephew who was standing next to the road. According
to the appellants it was only then that the police officers had
arrived whereafter
the four of them were arrested.
[8]
It was common cause that when the police
officers approached the vehicle, Bianca immediately handed over a
parcel to Van Rooyen
and said words to the following effect: “Sorry,
sorry, ek sal nie weer nie”. Bianca also admitted to Van
Rooyen
that the parcel contained drugs. Van Rooyen then searched the
vehicle and discovered what is referred to in the evidence as a
“strootjie”
– which is a cut off straw (plastic
tube) that is often used to inhale illegal substances such as Cocaine
or CAT.
[9]
Van Rooyen testified that in his experience
he suspected that the white residue in the straw was drugs such as
cocaine or CAT. In
this regard he testified that “[a]s ek ‘n
strooitjie kry met ‘n wit poeier wat in die binnkant vassit is
dit
dwelms. Dit is hoe ondervinding my geleer het in die afgelope 16
jaar oor wat ek getuig het”. The straw was found on the
backseat in the middle where the two men sat. According to Van Rooyen
no one took ownership of the straw whereafter the decision
was then
taken to arrest all four individuals.
[10]
Potgieter confirmed that the straw was
found in the back of the car. He likewise testified that in his
experience the white powder
was CAT and that the straw was used to
inhale CAT or something similar.
[11]
Van Wyk was adamant that he knew nothing
about the straw and that he also did not see where the police
officers found the straw.
He could, however, not dispute the fact
that the straw was found in the car.
[12]
According to the appellants Bianca told the
police at the scene as well as at the police station that they must
not arrest the others
(the appellants and Morris) as they were not
involved.
[13]
Potgieter denied that he had heard Bianca
say that the others were not involved when she voluntarily handed
over the package containing
drugs. He, however, admitted that he
later heard that she had made such a statement to one of the officers
and testified that it
could have been that he heard it from Van
Rooyen. Van Rooyen, however, denied that he had heard this statement.
[14]
It was common cause that straw containing
the white powder was never subjected to any forensic tests. Potgieter
confirmed that it
was never done and testified that the “speuders
het daar bietjie geslip”.
Claim 1: Unlawful
arrest in terms of section 49(1)(a) and 49(1)(h) of the CPA
Jurisdictional
requirements
[15]
The
onus to proof that the arrest was lawful rests on the first
respondent (the arresting officers). The onus arises from the fact
that an arrest constitutes a depravation of freedom and is regarded
as
prima
facie
unlawful. Justification for the arrest is therefore required from the
arresting officer.
[2]
See in
this regard
Minister
of Law and Order and others v Hurley and
another
:
[3]
“
I
consider it to be good policy that the law should be as there stated.
An arrest constitutes an interference with the liberty of
the
individual concerned, and it therefore seems to be fair and just to
require that the person who arrested or caused the arrest
of another
person should bear the
onus
of proving that his action was justified in law.”
[16]
In defending a claim for unlawful arrest
(in other words in justifying the arrest), the following three
jurisdictional requirements
as set out in section 40(1)(a) have to be
pleaded: (i) Firstly, the arrestor is a peace officer; (ii) Secondly,
an offence must
have been committed or there must have been an
attempt to commit an office and; (iii) Thirdly, the offence or
attempted offence
must be committed in the presence of the arresting
officer. Once these jurisdictional facts are present the discretion
whether
or not to arrest will arise. (I will return to this
discretion hereinbelow.
[17]
What
is required of an arresting officer has been considered in some
detail by the court in
Scheepers
v Minister of Safety and Security
:
[4]
“
[18] The test is
an objective one and the question to be answered is in our view
whether the arresting officer had direct personal
knowledge of
sufficient facts at the time of the arrest, on the strength of which
it can be concluded that the arrestee had
prima facie committed
an offence in his presence. Stated differently, did the arresting
officer have knowledge at the time of arrest
of the arrestee, of such
facts which would, in the absence of any further facts or evidence,
constitute proof of the commission
of the offence in question. The
aim is not to determine whether the arrested person is guilty of the
offence on which he was arrested.
It accordingly matters not
that the arrestee was not prosecuted or was acquitted at a subsequent
trial on the basis of evidence
other than what the arresting officer
had in his possession at the time when he executed the arrest. An
acquittal simply means
that the prosecution failed to prove the guilt
of the arrested person beyond a reasonable doubt on the evidence
available
to it at that time and placed before the trial court. As
stated by Price J in
R v Moloy
1953 (3) SA 659
(T) at 662E:
'It
is not necessary, of course, that a person who is apparently
committing one of the minor offences referred to in s 26
(a)
of
Act 31 of 1917 must thereafter be convicted of that offence in order
for the arrest to have been lawful. For instance,
a constable
may validly arrest a person whom he sees committing a common assault
even if it should turn out later on that such
person was acting in
self-defence and is innocent of any offence. The constable in such a
case would see before his eyes all the
elements which go to
constitute the crime of assault.'
[19] To hold otherwise
is, as a matter of public policy, undesirable. It would mean
that knowledge is
ex post facto
attributed to the arresting
officer, of facts he did not have actual knowledge of at the time of
effecting the arrest. It requires
the search for a balance between
two equally important aims of public policy, namely the liberty of
the individual on the one hand,
and the maintenance of law and order
on the other. Arrests under s 40(1)
(a)
usually take place
in circumstances where prompt and decisive action is called for, and
which is of necessity founded on the circumstances
of the moment,
such as public order offences. The arresting officer cannot be
expected to determine the guilt of the arrestee in
such circumstances
in advance, and to hold otherwise would unnecessarily discourage
peace officers from arresting offenders who
are in the act of
committing an offence. The arrest of a person
in flagrante delicto
without a warrant is a necessary power to effectively maintain order
and combat crime and should not be unduly curtailed.”
[18]
Of
particular importance is the principle emphasised by the court in
Scheepers
that it is not required of the arresting officer to determine whether
the arrestee is guilty or not. What is relevant is whether,
objectively viewed, the
arresting
officer had knowledge at the time of the arrest of such facts which
would, in the absence of any further facts or evidence,
constitute
proof of the commission of the offence in question.
It
is also not required that the arresting officer must form the view on
the likelihood or otherwise of a conviction of the person
that was
arrested in terms of section 40(1)(a) of the CPA. It is
likewise not required that the arrestee is later charged
or
convicted. See in this regard
Minister
of Safety and Security and Another v Mhlana
[5]
where
the court held that-
“…
in
order for a peace officer to be placed in a position to rely upon s
40(1)
(a)
it is not necessary that the crime in fact be committed or that the
arrestee be later charged and convicted of the suspected
offence.”
[19]
On behalf of the appellants it was
submitted that they were subjected to so-called collective
punishment because there was
not a single shred of evidence that a
possible common purpose or conspiracy existed between them. It
was further submitted
that the doctrine of common purpose was
applicable to the situation.
[20]
I am not persuaded by this argument. As pointed out, it was
not required that the arresting officers had to determine the guilt
of the appellants at the time of the arrest and it was certainly not
their duty to determine whether, in light of the doctrine of
common
purpose, the appellants were indeed guilty. Nothing more was required
of the arresting officers than that they should have
had knowledge at
the time of the arrest of such facts which would have, in the absence
of any further facts or evidence, constitute
proof of the commission
of the offence in question.
[21]
Leaving aside for a moment the fact that Bianca handed over a
packet containing dugs to Van Rooyen that she also took ownership
thereof. It was the evidence of Potgieter and Van Rooyen that they
found the straw containing white powder which, in their experience
was drugs, in the car. The straw was not found where Bianca sat but
was found at the back of the car where Van Wyk and Morris sat.
There
was no evidence before the court that Bianca also took ownership of
the straw. In this regard both Potgieter and Van Rooyen
testified
that because no one took ownership of the straw containing the powder
all four were arrested.
Van Rooyen explained that
it was in these circumstances necessary to arrest all four of them
and that it was not for him (as the
arresting officer) to decide who
was guilty but that it was for a court to decide who was guilty (in
the sense who the owner of
the drugs was). This evidence was also
confirmed by Potgieter.
[22]
I am in light of these facts satisfied that
sufficient facts existed at the time on which the arresting officer –
who had
direct knowledge of the facts - could have arrived at a
conclusion that an offence was committed in their presence.
[23]
In
so far as section 40(1)(h) of the CPA is applicable, it can likewise
not be concluded on the evidence that the arresting officers
could
not have formed a reasonable suspicion that the appellants committed
an office of possession of dependence producing drugs.
I should also
point out that it is irrelevant whether the straw did in fact contain
a depending producing drug or not. The fact
that it resembled cocaine
or CAT was sufficient for the arresting officers to have formed a
suspicion that the straw contained
an illegal substance. Furthermore,
a suspicion by its very nature implies that there may exist some
uncertainty in respect of whether
the offence had been committed. The
court in
Duncan
v Minister of Law and Order
[6]
explained what is meant by the word “suspicion” in the
context of section 40 of the CPA:
“
Section
40 (1)
(b)
provides that the arresting officer must have a
"reasonable suspicion" that the suspect had committed an
offence referred
to in Schedule 1 of the Act. As far as "reasonable
suspicion" is concerned, reference may be had to the
Criminal
Procedure Act 51 of 1977
ss 41(1)
(b)
,
42
(1)
(c)
,
46
(1),
48
and
49
(2).
Ingram v Minister van Justisie
1962 (3) SA at
229G - 230A correctly states the test to be applied - relying on
Hicks v Faulkner
8 QBD at 171, which was also approved of in
May v Union Government
1954 (3) SA at 128H - 129A. The words
"reasonable suspicion" in
s 40
may tend to indicate some
subjective test to be applied; however, that is not so; the test
as to whether VAN HEERDEN JA "reasonable
suspicion" could
have existed and did exist, is to be determined by an objective
standard, namely that of the reasonable man
with the knowledge and
experience of a peace officer based upon the facts and circumstances
then known to the arresting peace officer.
S v Nell 1967 (4) SA at
491B - E, 492A - B, E - F, and particularly at 496D - F; LSD Limited
and Others v Vachell and Others 1918
WLD at 143; Guardian Newspapers
(Pty) Ltd v Minister of Justice and Others 1946 TPD at 732.
Discretion to arrest
[24]
The decision to arrest was also attacked by
the appellants. In this regard it was claimed that the arresting
officer should have
considered less invasive measures than arrest in
order to bring the appellants before court.
[25]
It
is accepted that once the jurisdictional facts for an arrest have
been established the discretion whether or not to arrest arises.
This
discretion arises precisely because of the accepted principle that an
arresting officer is not obliged to arrest.
[7]
The discretion to arrest must be exercised in good faith, rationally
and not arbitrarily.
[8]
[26]
The
decision to arrest should be based on the intention to bring the
arrested person to justice. Where an inappropriate motive for
the
arrest was present or where the arrest was not
bona
fide,
the
arrest would be unlawful. See in this regard
Duncan
v Minister of Law and Order:
[9]
“
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (cf Holgate-Mohammed
v Duke
[1984] 1
All ER 1054
(HL) at 1057). No doubt the discretion must be properly
exercised. But the grounds on which the exercise of such a discretion
can
be questioned are
narrowly
circumscribed. Whether every improper application of a discretion
conferred by the subsection will render an arrest unlawful,
need not
be considered because it does not arise in this case. All that need
be said for the purposes of the point under consideration
is that an
exercise of the discretion in question will be clearly unlawful if
the arrestor knowingly invokes the power to arrest
for a purpose not
contemplated by the Legislator. But in such a case, as is generally
the rule where the exercise of a discretion
is questioned, the
onus
to establish the improper object of the arrestor will rest on the
arrestee (cf
Divisional
Commissioner of SA Police, Witwatersrand Area, and Others v SA
Associated Newspapers Ltd and Another
1966
(2) SA 503 (A)
at 512;
Groenewald
v Minister van Justisie
1973
(3) SA 877 (A)
at 884).”
[10]
[27]
What
is therefore important is the fact that the arresting officer must
exercise a discretion before effecting an arrest. See in
this regard
[zRPz]
Raduvha
v Minister of Safety and Security and Another
where the
Constitutional
Court held as follows:
[11]
“
[42] Section 40(1)
of the CPA states that a police officer “may” and not
“must” or “shall” arrest
without a warrant
any person who commits or is reasonably suspected of having committed
any of the offences specified therein.
In its ordinary and
grammatical use, the word “may” suggests that police
officers have a discretion whether to arrest
or not. It is
permissive and not peremptory or mandatory. This requires
police officers to weigh and consider the prevailing
circumstances
and decide whether an arrest is necessary. No doubt this is a
fact-specific enquiry. As the police officers
are confronted
with different facts each time they effect an arrest, a measure of
flexibility is necessary in their approach to
individual cases.
Therefore, it is neither prudent nor practical to try to lay down a
general rule and circumscribe the circumstances
under which police
officers may or may not exercise their discretion. Such an
attempt might have the unintended consequence
of interfering with
their discretion and, in the process, stymie them in the exercise of
their powers in pursuit of their constitutional
duty to combat crime.
[43] As section 40(1)
grants police officers a discretion whether to arrest, the two courts
should have gone further in their evaluation
of the evidence to
determine whether the facts justified an arrest. This is so because
an arrest is a drastic invasion of a person’s
liberty and an
impairment of their rights to dignity, both of which are enshrined in
the Bill of Rights.
[44] In other words the
courts should enquire whether in effecting an arrest, the police
officers exercised their discretion at
all. And if they did,
whether they exercised it properly as propounded in
Duncan
or
as per
Sekhoto
where the court, cognisant of the importance
which the Constitution attaches to the right to liberty and one’s
own dignity
in our constitutional democracy, held that the discretion
conferred in section 40(1) must be exercised “in light of
the Bill of Rights”.
[28]
Although it is not required that the arrest
should be the action of last resort, it is nonetheless required that
the discretion
must be exercised properly. In considering this
question the comments made the court in
Sekhoto
should be borne in mind:
“
The
standard was not perfection, or even the optimum, judged from the
vantage of hindsight, and, as long as the choice made fell
within the
range of rationality the standard was not breached”
[12]
[29]
An
arrest will not be unlawful if it was the intention of the arresting
officer to arrest pending further investigations into the
alleged
offence prior to releasing the arrestee. See in this regard
Duncan
v Minister of Law and Order
:
“
Section
50 (1) of the present Act leaves even more scope for further
investigation prior to an appearance in court. For an arrestee
may
now be detained for at least 48 hours before being brought before a
court. I therefore share the view of VAN DIJKHORST
J that an
arrest without warrant is not unlawful merely because the arrestor
intends to make further investigation before deciding
whether to
release the arrestee or to proceed with a prosecution as contemplated
by s 50 (1). If the object of the arrestor is
to do just that, it
cannot be said that he acted with an extraneous or ulterior purpose
such as SCHREINER JA had in mind in
Tsose's
case. But that was also the law under the old Act.
Put
negatively, an arrest is unlawful if the arrestor has no intention of
bringing the arrestee before a court. And in the case
of a private or
so-called citizen's arrest in terms of s 42 of the new Act the test
is whether or not it was the arrestor's
primary object to hand
the arrestee over to the police for further steps in terms of s 50.
That, I conceive, is what was intended
to be conveyed by
dicta
such as that the object of the private arrestor must be "om hom
(ie the arrestee) voor die gereg te bring":
Wiesner
v Molomo (supra
at 158E) and
Macu
v Du Toit en 'n Ander
1983
(4) SA 629 (A)
at
645G.”
[13]
See
also
Raduvha
v Minister of Safety and Security and Another:
[14]
“
[43] As section
40(1) grants police officers a discretion whether to arrest, the two
courts should have gone further in their evaluation
of the evidence
to determine whether the facts justified an arrest. This is so
because an arrest is a drastic invasion of
a person’s liberty
and an impairment of their rights to dignity, both of which are
enshrined in the Bill of Rights.
[44] In other words the
courts should enquire whether in effecting an arrest, the police
officers exercised their discretion at
all. And if they did,
whether they exercised it properly as propounded in
Duncan
or
as per
Sekhoto
where the court, cognisant of the importance
which the Constitution attaches to the right to liberty and one’s
own dignity
in our constitutional democracy, held that the discretion
conferred in section 40(1) must be exercised “in light of
the Bill of Rights”.
[30]
Once a suspect is arrested, the arresting
officer must bring the arrestee before a court as soon as possible
but no later than 48
hours. Once the arrestee has been brought before
a court, the authority to (further) detain will fall within the
discretion of
the court. (I will return to this aspect herein below.)
[31]
I have already referred to the fact that
the appellants disputed whether the arrest was warranted in the
circumstances particularly
in circumstances where Bianca had
(according to the appellants) informed the arresting officers that
the appellants were not involved.
[32]
Turning
to the facts: It was not disputed that a straw with white powder
residue was found in the car. I have already referred to
the fact
that the appellants disputed that the white powder was drugs. I have
also already pointed out that it is not required
of the arresting
officers to be of the view that a crime had in fact been committed
and/or that the arrestee was in fact guilty.
It was therefore
irrelevant at the time of the arrest whether the white powder was in
fact cocaine or CAT. All that was required
was that a reasonable
suspicion existed at the time of the arrest that an offence had been
committed. In this case it was not disputed
that the straw was found
where the two men were seated. Because no one took ownership of the
straw the four of them were arrested.
In this regard it was the
evidence of Potgieter that they were not in a position to test the
urine of the appellants in order
to determine who the actual user of
the suspected drugs was as they did not have the necessary equipment
to do such a test at the
scene. He also testified that an
investigating officer had to be appointed to further investigate the
matter.
[33]
I
have already indicated that I am in light of the evidence satisfied
that sufficient facts were present upon which the arresting
officers
could properly have concluded that
prima
facie
an offence had been committed in
their presence in the form of a straw containing white powder which
could - in the absence of
other evidence - constitute proof of an
offence.
[34]
Was the discretion to arrest properly
exercise? Put differently, did the facts justify an arrest? Having
regard to the evidence,
I am satisfied that the arrest was lawful in
the circumstances and that the discretion to arrest was properly
exercised. There
was furthermore no credible evidence before the
court that the arrest was affected for any other purpose than for the
lawful purpose
of charging and prosecuting the two appellants. I am
in light of the aforegoing therefore satisfied that in arresting the
appellants,
the arresting officers acted within the ambit of section
40(1)(a) and 40(1)(h) of the CPA. The appeal on this ground must
therefore
fail.
Were the appellants
maliciously prosecuted?
[35]
The allegation is made in the Particulars
of Claim that the arresting officers were malicious and that they
falsely prosecuted the
appellants.
[36]
The
appellants bear the onus to proof that the first respondent officials
had maliciously prosecuted them. I have already dealt
with the
circumstances surrounding the arrest. I am not persuaded that there
was credible evidence before the court
a
quo
to
justify a conclusion that the arrest was malicious. I have already
pointed out that the purpose of the arrest was – if
regard is
had to the evidence of Potgieter and Van Rooyen – to bring the
appellants to justice. It should also be borne in
mind that, after
the arrest, the arrestor had a limited role in this process. See in
this regard
Sekhoto
[15]
where the court held as follows:
“
[44] 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
criticised for arresting a suspect for that purpose. On the other
hand,
there will be cases, particularly where the suspected offence
is relatively trivial, where the circumstances are such that it would
clearly be irrational to arrest. This case does not call for
consideration of what those various circumstances might be. It is
sufficient to say that the mere nature of the offences of which
the respondents were suspected in this case — which
ordinarily
attract sentences of imprisonment, and are capable of attracting
sentences of imprisonment for 15 years — clearly
justified
their arrest for the purpose of enabling a court to exercise its
discretion as to whether they should be detained or
released, and, if
so, on what conditions, pending their trial.”
[37] An allegation was
also made that, after the appellants were arrested, no investigation
into the alleged offence done. Apart
from the say-so of the
appellants no credible evidence was placed before the court
warranting such a conclusion. Moreover, if regard
is had to the
so-called “investigation diary” it appears from the
entries therein that the investigation did in fact
proceed. There is
therefore no merit in this ground of appeal.
Did the prosecutor
wrongly exercise her discretion in denying the plaintiffs bail?
[38]
The appellants pleaded that the conduct of
the prosecutor (the third respondent) was unlawful in failing to
grant them bail. In
this regard the appellants bear the onus to prove
this claim.
[39]
It
was common cause that an after-hour prosecutor was approached by the
appellants’ legal representative and that bail was
refused.
[40]
Bearing
in mind the fact that the onus rests on the appellants, the evidence
before the court
a quo
has
to be evaluated. Again, apart from the say-so of the appellants no
credible evidence was placed before the court warranting such
a conclusion. What does, however, appear from the record is the fact
that attempts have been made by the appellants’ legal
representative to obtain bail for the two appellants. Those attempts
have been unsuccessful.
[41] Furthermore, from
the evidence of Lindy it appears that she had been the subject of a
complaint of theft and that at the time
of her arrest and detention
the matter was still outstanding. It was put to Lindy in
cross-examination that it was as a result
of her past history that
the prosecutor had decided not to grant her bail. Lindy in fact
conceded that it was because of the so-called
“Carltonville”
matter that she was not granted bail. In re-examination she also
referred to another matter in Kimberly
that was still pending. From
the profile report of Van Wyk (that was included in the bundle) it
likewise appears that Van Wyk also
was the subject of numerous
complaints ranging from shoplifting, theft and common assault. From
these limited facts placed before
the court
a quo
it appears
that the prosecutor must have refused bail in light of the
outstanding or pending cases or past history of the two appellants.
[42] In light of these
facts I am therefore satisfied that there are no merits in the claim
that the prosecutor wrongfully refused
the application for bail.
[43]
In the event the following order is made:
The appeal is dismissed
with costs.
A C BASSON
JUDGE OF THE HIGH
COURT
PRETORIA
I
agree
P H MALUNGANA
ACTING JUDGE OF THE
HIGH
COURT, PRETORIA
Appearances:
For the appellant: Adv J
R Bauer
Instructed
by: Potgieter, Penzhorn & Taute Attorneys
For the respondent: Adv
DE Meyer
Instructed by: The State
Attorney
[1]
Act 51 of 1977.
[2]
Minister
of Safety and Security v Sekhoto and Another
2011 (1) SACR 324
at paragraph [16].
[3]
1986 (3) SA 568
(A) at 589E – F.
[4]
2015 (1) SACR 284 (ECG).
[5]
2011
(1) SACR 63 (WCC)
in
paragraph [15] at 68C.
[6]
1986 (2) SA 805
(A) at 812H – 813B.
[7]
Sekhoto
at paragraph [28].
[8]
Ibid.
[9]
1986 (2) SA 805 (A).
[10]
At
818H – 819B.
[11]
[2016]
ZACC 24.
[12]
Sekhoto
.
Quoted
from the headnote.
[13]
Supra
at 120B – D.
[14]
[2016]
ZACC 24.
[15]
Ibid
.