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[2015] ZAECBHC 19
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Singatha and Another v Minister of Police and Another (284; 285/2012) [2015] ZAECBHC 19 (26 March 2015)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO. 284 and 285/2012
Not
Reportable
In
the matter between:
YONELA
DIPLOMA
SINGATHA

1
st
Plaintiff
LWANDISO
NKEBENKEBE
SKOM

2
nd
Plaintiff
and
THE
MINISTER OF POLICE

1
st
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS

2
nd
Defendant
JUDGMENT
D
VAN ZYL ADJP:
[1]
Mr Yonela Diploma Singatha
(the
first plaintiff)
and
Mr Lwandiso Nkebenkebe Skom
(the
second plaintiff)
individually
issued summons claiming damages from the Minister of Police
(the
first defendant)
and
the National Director of Public Prosecutions
(the
second defendant)
for
wrongful arrest and detention, assault and malicious prosecution.
As both the plaintiffs’ claims arose from their
arrest and
criminal prosecution for the death and the alleged rape of a certain
P. A.
(the
deceased)
,
their claims were subsequently consolidated.  Pursuant to the
raising of a special plea of prescription by the defendants,
the
plaintiffs’ claims arising from the alleged assault, their
arrest on 11 June 2009, and their subsequent detention until
28 June
2009, were dismissed.
[1]
The plaintiffs’ claims were accordingly limited to unlawful
detention, in the case of the first plaintiff from 29 June
2009 to 05
October 2011, and in the case of the second plaintiff from 29 June
2009 to 05 December 2011, and malicious prosecution.
[2]
The deceased was last seen at a tavern on 6 June 2009.  Five
days later her body was discovered near the Buffalo River
by a
scholar on his way to Zwelitsha.  After the discovery was
reported the two plaintiffs and a person by the name of Philani
Nquma
were arrested in 11 June.  The first plaintiff testified that he
was told by his mother that the police came to his
house looking for
him.  He went to the police station to make enquiries.
When no one could assist him, he left.
The sister of the second
plaintiff arrived thereafter at his workplace and told him that the
police had also been to her house
saying they were looking for him
and the second plaintiff.  The two plaintiffs, accompanied by
the second plaintiff’s
sister and his mother proceeded to the
Zwelitsha police station.  There the two plaintiffs were placed
in the holding cells
by three policemen.  They were not advised
of the reason for their detention.  The following day detectives
arrived who
took them out of the cells.  According to the
plaintiffs they were assaulted.  The first plaintiff was taken
to his home
where a search was conducted.  Nothing was found.
The second plaintiff testified that he was shown items of clothing

that were taken from his room which he identified as his own.
There were, what looked like blood spots on the clothing.
He
explained its presence to the police by saying that he was asked by a
shebeen owner to assist in the slaughtering of a pig.
[3]
The investigating officer, Warrant Officer Marwanqa,
(Marwanqa)
testified that he
was tasked with the investigation of the deceased’s death on 12
June when the police docket was handed to
him by a senior police
official.  There was only one statement in the docket.
[2]
This statement seems to have simply contained a report about the
death of the deceased, the so-called
“
first
information of crime”
statement.
At that time the two plaintiffs and the said Philani Nquma had
already been arrested in connection with the death
of the deceased.
It is not clear under what circumstances Philani Nquma was arrested.
According to the investigation
diary in the police docket,
[3]
Marwanqa on the same day obtained and placed the following documents
in the police docket:  A2 to A4 were notices intended
to show
that the plaintiffs’ rights were explained to them when they
were detained on 11 June 2009; A5 is a statement from
the person who
discovered the deceased’s body; A6 and A7 are witness
statements Marwanqa obtained from a certain Nomnikelo
Sithekence and
Nombulumko Bam.
[4]
The investigation diary then shows that the following day Marwanqa
obtained a statement from another witness, one Sisanda Bakubaku.

He questioned the three suspects and the second plaintiff admitted
the allegations.  He recorded in the investigation diary
that
the second plaintiff said that the axe used to cut the throat of the
deceased was thrown in the Buffalo River.  The next
entry in the
diary shows that after further investigations, the third suspect,
namely Philani Nquma was released and his statement
[4]
was placed in the police docket.  Marwanqa then proceeded to
charge the two plaintiffs and filed a statement
[5]
to that effect in the police docket.  According to this
statement he released the one suspect,
“
and
(the) other two suspects were charged due to Lwandiso’s
version.”
A16,
to which no reference was made, and no reliance was placed on in
evidence, is a statement by a Captain Sigcu.  He is the
police
officer who took the second plaintiff to make a pointing out on 12
June 2009.
[5]
What followed after the investigating officer charged the plaintiffs
with murder and rape is not in issue, and appears from
the record of
the proceedings in the Magistrates’ Court where the plaintiffs
first appeared, and thereafter in the High Court
where they were
eventually prosecuted.
[6]
The plaintiffs’ first appearance was in the Zwelitsha
Magistrate’s Court on Monday 15 June when the matter was

postponed to 17 June.  The Court ordered the plaintiffs to
remain in custody while arrangements were to be made for them to

obtain legal representation and for the hearing of a bail
application.  On 17 June the plaintiffs were represented by a Mr

Muvango.  The matter was postponed to 15 July for a formal bail
application.
[6]
On 15 July the plaintiffs were represented by a Ms Fudumele who
advised the Magistrate that the plaintiffs were abandoning their
bail
application.  The matter was adjourned to 28 August
“
for
DPP’s decision.”
On
that day the matter was postponed to 4 September
“
for
formal bail application.”
On
4 September a Mr Gomba represented the plaintiffs and he formally
applied for the plaintiffs to be released on bail.  The

prosecutor advised the Court that the State was opposing the
application.  The plaintiffs testified in support of their
application
to be released on bail.  The State did not call any
witnesses, and proceeded to close its case.  The Court refused
the
application, finding that there were no exceptional circumstances
justifying their release on bail.
[7]
The matter was thereafter postponed on several occasions pending a
decision by the second defendant.  That decision was
taken on 27
May 2010 and was communicated to the Magistrate the following day.
The decision was that the plaintiffs were
to be prosecuted
“
at
a summary trial at the Eastern Cape High Court at Bhisho on counts of
murder and rape in contravention of
section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 32 of 2007
.”
[8]
The matter was eventually postponed for trial in the High Court.
The trial commenced on 13 September 2011.  On 5
October 2011,
during the course of the trial, the first plaintiff was released on
bail.  The trial was finalized on 5 December
2011 when the
plaintiffs were discharged at the end of the State’s case.
The trial Court found that there was insufficient
evidence upon which
a Court may convict the plaintiffs as envisaged in section 178 of the
Criminal Procedure Act.
[7]
[9]
To succeed in an action based on unlawful detention a plaintiff must
show that the defendant, or someone acting as his agent
or employee,
deprived him of his liberty.  As an interference with the
personal liberty of any person is
prima
facie
unlawful, the
onus
is on a defendant to establish why, in the particular circumstances,
the interference is legally justified.  This continues
to be the
position after the arrest of a person.
[8]
The requirements for a successful claim for malicious prosecution are
in turn that a plaintiff must allege and prove that
the defendant:
(a)
set the law in motion (instigated or instituted the proceedings);
(b)
acted without reasonable and probable cause;
(c)
acted with “
malice”
(or
animo
injuriandi
);
(d)
that the prosecution failed.
[9]
[10]
At the trial the issues for decision were limited by the parties in a
pre-trial minute to the following:
“
4.1
the lawfulness or otherwise of the plaintiffs’ detention from
29 June 2009 to date of release
on 5 December 2011 in the case of the
second plaintiff and 05 October in the case of the first plaintiff;
4.2
whether the second defendant had reasonable and probable cause for –
4.2.1
arraigning the plaintiffs on charges of murder and rape; and
4.2.2
pursuing the prosecution of the plaintiffs; and
4.3
depending on the outcome of the case on the issues set out in
paragraphs 1 and 4.2 above,
the quantum of damages to which the
plaintiffs are entitled.”
[10]
[11]
The parties were
ad
idem
that the issue raised in the paragraph 4.1 limited the enquiry to
that of the legality of the plaintiffs’ continued detention

after their initial arrest and their appearance in the Magistrate’s
Court.  A further aspect that requires comment is
that the
reference to the second defendant in paragraph 4.2 of the minute is
clearly incorrect.  The reason is that the plaintiffs’

claim for malicious prosecution lies against the first defendant
only.  Their claims against the second defendant were limited
to
wrongful detention.
[11]
The parties acknowledged this to be the position in their further
submissions to the Court in response to a query directed
to them
subsequent to the conclusion of the trial.  They also confirmed
that the only remaining issue for determination in
respect of the
malicious prosecution claim was whether the investigating officer had
reasonable and probable cause for laying charges
of murder and rape
against the plaintiffs.
The
limitation of the issues in respect of the claims for unlawful
detention and malicious prosecution placed issues such as the

lawfulness of the plaintiffs’ arrest and question whether, by
charging the plaintiffs with murder and rape after their arrest,
the
investigating officer can he said to have
“
instigated”
the
proceedings,
[12]
outside this
Court’s mandate, and consequently unnecessary to decide.
[13]
[12]
The
plaintiffs’ pleaded case in respect of their unlawful detention
claim was in main that their arrest was unlawful, and
consequently so
too their subsequent detention.  To this the defendants pleaded
that the plaintiffs were arrested without
a warrant by a peace
officer who entertained a reasonable suspicion that the plaintiffs
had committed the offences of murder and
rape.
[14]
It was pleaded that the plaintiffs were thereafter brought before a
Court, and that their continued detention was consequently
by virtue
of a court order and not by reason of the arrest.  This defence
is clearly based on the decision in
Isaacs
v Minister van Wet en Onder
[15]
where it was held that the unlawful detention of the plaintiff in
that matter ceased when the Magistrate issued a detention order
in
terms of section 50 (1) of the Criminal Procedure Act.
[13]
The plaintiffs wisely anticipated that the defendants would place the
lawfulness of their detention in issue on that basis,
and they
accordingly in the alternative also based their claim on the
existence and breach of a
“
duty
of care”
on
the part of the first and second defendants’ officials.
This is based on decisions such as
Woji
v Minister of Police
[16]
,
Minister of Police v du Plessis
[17]
,
and
Minister
of Safety and Security v Tyokwana
[18]
where it was found that the existence of a detention order does
not preclude a determination of the legality of the manner
in which
the Court exercised its discretion in granting that order, and that
conduct, including an omission, which constitutes
a breach of a
public law duty may render an arrested person’s detention after
his appearance in court unlawful for purposes
of a delictual claim
for damages.  The plaintiffs formulated the duty as follows in
their particulars of claim:
“
11.
The Police Officials who acted as investigating officers in the
charges leveled against the plaintiff,
and the state prosecutors in
both Zwelitsha Magistrate’s Court and the Bhisho High Court,
whose full and further particulars
are unknown to the plaintiff, owed
the plaintiff a duty of care:
11.1
to assess the strength of the state’s case against the
plaintiff and to determine whether there
existed a
prima facie
case against the plaintiff; and
11.2
to ensure that the charges and proceedings against the plaintiff were
dealt with by them in accordance
with law and according to the
dictates of justice; and
11.3
to ensure that the plaintiff not be detained in custody, or that his
detention in custody not be extended,
where no
prima facie
case existed against the plaintiff; and
11.4
not to seek the imposition of bail if no
prima facie
case
against the plaintiff had been recorded; and
11.5
to place before the Court during the process of all remands and
whilst determining the issue of bail
in respect of the plaintiff, all
relevant information as to the strength and weaknesses of the State’s
case against the plaintiff,
and information in the plaintiff’s
favour relating to the complete lack of evidence, alternatively,
insufficient evidence
against the plaintiff which would be highly
relevant to the granting of bail and the continued prosecution of the
plaintiff.”
[14]
With regard to the second issue for determination, reasonable and
probable cause as a requirement for a successful claim for
malicious
prosecution has two constituent elements, the one subjective and the
other objective.  The defendant must not only
“
subjectively
have had an honest belief in the guilt of the plaintiff, but his
belief must have been objectively reasonable, as would
have been
exercised by a person using ordinary care and prudence.”
[19]
The word
“
guilt”
,
as was stated by Lord Denning in
Glinski
v McIver
[20]
,
is apt to be misleading.  It is not necessary that the defendant
must believe in the probability of a conviction.  It
is rather
the existence of a belief that there exists sufficient grounds for
bringing the accused to trial
“
Whereas
in truth he has only to be satisfied that there is a proper case to
lay before the court, or in the words of Lord Mansfield,
that there
is a probable cause
“
to
bring the [accused] to a fair and impartial trial”
,
see
Johnstone
v Sutton
(16).
After all, he cannot judge whether the witnesses are telling the
truth.  He cannot know what defences the accused
may set up.
Guilt or innocence is for the tribunal and not for him.”
[21]
[15]
An honest belief in the charge alone is no justification for a
prosecution if there is nothing to find it on.
“
The
defendant may think he has probable cause, but that is not
sufficient.  He must have probable cause in fact.”
[22]
This is the second
constituent element of reasonable and probable cause, and the issue
for determination which crystalised on the
evidence in the present
matter.  The plaintiffs’ case is that on the evidence
there existed no grounds upon which the
investigating officer could
have based any honest belief that there existed a proper case to
place before a Court.  It is
a question of fact, the burden
which is on the plaintiffs.  The mere fact that they were
acquitted is not sufficient.
The question is whether there
existed sufficient facts known to the defendant at the time from
which it could be concluded that
there was reasonable and probable
cause.
[23]
The facts may
consist of the information available to the defendant, like the
contents of witness statements, and the facts
to be inferred from
that information.  In
Prinsloo
v Newman
[24]
it was added that the test for reasonable and probable cause also
extends to another aspect, namely, whether the facts
(“known
or suspected”)
constitute
an offence in law, and in applying that test, each case must be
considered on its merits.
[25]
[16]
The decision of the parties to limit the issues for determination to
the legality of the plaintiffs’ continued detention,
and
whether reasonable grounds existed for charging the plaintiffs with
rape and murder, meant that the focus of the evidence and
the
questioning at the trial was on the sufficiency of the evidence, and
the strength of that evidence at the time when they were
first
charged, and subsequently when they appeared in Court and applied to
be released on bail.  It is convenient to first
examine the
evidence in the context of the claim for malicious prosecution.
Both plaintiffs testified that there existed
no evidence to charge
them.  The second plaintiff’s evidence was to the effect
that he had no knowledge of what he was
accused of, and that he did
not admit to anyone of having been involved in the death of the
deceased.  The defendants called
two witnesses to deal with the
issues raised in this context, namely the investigating officer
Marwanqa, and the prosecutor who
opposed the plaintiff’s
application to be released on bail.
[26]
[17]
Marwanqa gave the following reasons for charging the plaintiffs with
murder and rape in response to being asked on what information
he had
based that decision:  The second plaintiff arrived at the police
station saying it was him and his friend Diploma who
was involved in
“
raping
and murdering”
the
deceased; the second plaintiff was prepared to make a pointing out,
bloodied clothing was found in the shack occupied by the
second
plaintiff; and the plaintiffs were implicated by the witnesses in
their witness statements.
[18]
In one of the witness statements made by Marwanqa and introduced into
evidence, he stated that he investigated the explanation
which the
second plaintiff advanced for the presence of blood on his clothing,
and established that the second plaintiff was never
asked to assist
with the slaughtering of a pig as he had claimed.  Marwanqa
further testified that exhibit “E”,
wherein the results
of the second plaintiff’s pointing out were recorded, including
the statements made by him thereat, formed
part of the police docket
at the time he decided to charge the plaintiffs.  It was evident
from Marwanqa’s evidence
that this document and its contents
was predominantly the motivation for that decision.
[19]
The difficulty with Marwanqa’s evidence that he also based his
decision on the second plaintiff arriving at the police
station
implicating himself and the first plaintiff is twofold:  The
first is that it is not apparent from Marwanqa’s
statement of
the events of 11 June that the second plaintiff made a inculpating
statement to him.
[27]
The second plaintiff denied having done so.  Marwanqa in that
statement simply said that he found the two plaintiffs
at the
Community Service Centre, that they informed him that they had heard
the police were looking for them, and that they decided
to surrender
themselves.  That is consistent with the two plaintiffs’
evidence that they were told that the police came
to their homes
looking for them, and they as a result went and presented themselves
at the Zwelitsha police station.  The
statement further records
that Marwanqa detained the two plaintiffs
“
for
further investigation after receiving information that they had
committed the said offence.”
The
source of that information is not stated.
[20]
It was only the next day when Marwanqa in a further statement dealing
with the events of 12 June said that the second plaintiff
admitted
that he committed the offence, that a pointing out was made by him,
and that he said that he threw the axe in the river.
[28]
According to this statement, Marwanqa then released the third
suspect and decided to charge the plaintiffs
“
due
to Lwandinso’s version.”
Lwandiso
is the second plaintiff’s first name.
The
second difficulty with Marwanqa’s evidence in this regard is
the important fact that he acknowledged that he was aware
that the
second plaintiff’s acknowledgement that it was him who
committed the offence constituted a confession, and that
it was
inadmissible as evidence against the second plaintiff unless recorded
in writing.  According to him the second plaintiff
declined to
agree that it be reduced to writing, and that the Criminal Procedure
Act excludes the use of a confession against a
co-accused.
[29]
[21]
Marwanqa’s evidence in Court with regard to the contents of
what he was told by the second plaintiff is, anything but

satisfactory.  It is not clear what was exactly said to him on
each occasion.  As in his written statements, his evidence

consisted of vague statements such as that the second plaintiff told
him that he was involved
“
in
raping and murdering the girl, it was him and his friend Diploma; he
heard it from the second plaintiff at the time he was in
the cell,
and then he told us how all this happened.”
And then in
cross-examination:  That the second plaintiff said he
“
is
bringing himself because he is the doer of this”;
that
“
it
was him who did this thing”;
and
that he
“
said
to the police he is the one who raped and murdered that girl.”
[22]
With regard to the involvement of the first plaintiff, Marwanqa’s
evidence was that whenever the second plaintiff spoke
about the death
of the deceased, he would mention
“
the
name of Diploma and his girlfriend.”
Diploma
is the first plaintiff’s second name.  The problem with
Marwanqa’s evidence in this regard is that in the
two witness
statements made by him regarding the events of 11 and 12 June, there
is no mention made about the possible involvement
of the first
plaintiff.
[30]
All what
the second plaintiff is reported to have said to Marwanqa is that he
“
admitted
that he committed the offence.”
[23]
Marwanqa’s reliance on those statements in the police docket
which he obtained from possible witnesses was confined to
his
contention that they showed that the deceased was last seen with the
plaintiffs, in particular the second plaintiff.
However, in
none of the statements which were in the docket at the time he
decided to charge the plaintiffs, (or any time thereafter)
are the
plaintiffs mentioned either by name, or identified as having been
present at the shebeen where the deceased was last seen
on 6 June in
Zwelitsha.  Marwanqa was eventually reluctantly constrained to
concede in cross-examination that these statements
did not in any way
connect the two plaintiffs with the deceased.
[24]
That leaves the evidence of the pointing out.  It consisted of
Captain Sigcu’s recording of what transpired, and
what was said
to him by the second plaintiff at the time.
[31]
Captain Sigcu appears to also have made a separate witness statement
regarding the pointing out.
[32]
No reference was made to this statement in evidence by Marwanqa as a
document on which he placed any reliance as constituting
grounds for
charging the two plaintiffs.  The reason for this in all
probability lies in the fact that in this statement Sigcu
also
attributes other admissions to the second plaintiff which did not
form part of Exhibit “E”.  This appears
to be in
conflict with his evidence in the plaintiffs’ criminal trial
that he
verbatim
recorded what the second plaintiff had told him at the time of the
pointing out.  It is accordingly not necessary to make
any
further reference to Captain Sigcu’s witness statement, and no
reliance was placed thereon in the present proceedings.
[25]
Those portions of exhibit “E” which are relevant to the
question whether it provided grounds for the investigating
officer’s
decision to charge the two plaintiffs with murder and rape, read as
follows:
“
14:55
After walking for about five hundred (500) metres towards
the Buffalo
river bank, suspect said we should stop.  He alleged that they
were there – it was himself, Yonela and his
girlfriend.
He said “Sasilapha.  Yayindim no Yonela nalaa cherry
yakhe.”
14:58
Suspect points a spot where he alleges
that Yonela and his girlfriend
had sex.  Photo is taken.  Suspect further says he does not
know the spot where they killed
the deceased and left her dead.
15:02
Suspect alleges that on their way back
home, somewhere they stopped
and he threw away a small axe which they used to kill the deceased
with.  He says he will try
and figure out the spot.
15:06
Suspect points a spot about (30) thirty
paces from the alleged spot
for rape.  He says he thinks it is where he threw the small
axe.
[26]
What is apparent from the contents of what the second plaintiff is
reported to have told Captain Sigcu, is that it does not
implicate
either of the plaintiffs in the alleged rape of the deceased.
If it is accepted that
“
Yonela”,
which is the first
plaintiff’s first name, must be taken as being a reference to
him, and that the girlfriend
[33]
of Yonela is the deceased, it provides no evidence of unconsexual
sexual intercourse by the first plaintiff, or an admission that
the
second plaintiff was a party thereto.  It also cannot justify
the inference, as was suggested by one of the defence witness,
that
the two plaintiffs acted in concert.  Marwanqa could not on the
evidence in Exhibit “E” have entertained
a belief that
was objectively reasonable that a charge of rape was warranted.
[27]
With regard to the murder charge, the statement of the second
plaintiff as recorded by Captain Sigcu, constitutes an admission
that
“
they”
killed the
deceased.  Read in the context of the fact that the pointing out
was made after the arrest of the plaintiffs in
connection with the
death of the deceased; that, according to Marwanqa, he questioned the
plaintiffs, which questioning could only
have related to the death of
the deceased; that the second plaintiff indicated that he was
prepared to made a pointing out; and
that it was himself and Yonela
who were present at the river, the reference to
“
they”
and
“
the
deceased”
in
the statement is reasonably capable of being taken as a reference to
the first and second plaintiffs, and to the deceased, whose
death was
being investigated at the time.  The statement that
“
they
killed the deceased”
does
not constitute a confession as was suggested in argument.  It is
not an unequivocal admission of all the elements of the
crime of
murder, as in the case of an admission that the deceased was
“
murdered”
[34]
.
The second plaintiff’s admission that
“
they
killed the deceased”,
coupled
with the fact that bloodstained clothing, which he admitted belonged
to him, was found at his house, in my view constituted
reasonable and
probable cause for charging him with murder at the time.
[28]
It was submitted that the second plaintiff’s admission, which
also implicated the first plaintiff in the death of the
deceased,
could not constitute reasonable and probable cause for also charging
the first plaintiff with murder.  The reasoning
was that this
constituted inadmissible hearsay evidence, and that the Courts are
reluctant to allow such evidence to be admitted
where it plays a
decisive or significant role in the decision whether to convict an
accused person.  A distinction must be
drawn between evidence
which is
per
se
inadmissible, that is, it can never be admissible in evidence against
an accused person in a criminal trial, and evidence such
as hearsay
evidence, which although inadmissible, may be admitted into evidence
where it is in the interests of justice to do so,
[35]
or where it can be brought within some other exception to the hearsay
rule.  Examples of the first category of evidence is
a
confession which does not comply with the provisions of section 217
of the Criminal Procedure Act, or which implicates a co-accused
as
envisaged in section 219 of that Act.  This evidence cannot
provide the basis for an honest belief that there is cause
to charge
the plaintiff.  In the second category of evidence it is the
function of the Court to decide whether that evidence
should be
admitted into evidence.  Whilst it must certainly a play part in
assessing the strength of the State’s case
in bail proceedings,
I do not believe that it is expected of the person who is said to
have instigated the prosecution to anticipate
whether or not such
evidence would be ruled admissible at the trial.  As stated
earlier, a distinction must be drawn between
facts necessary to
establish the guilt of a plaintiff and those required to establish
“
an
honest belief formed on reasonable grounds that the institution of
proceedings is justified.”
[36]
Like the guilt
of the accused, the admissibility of evidence is a function of the
trial Court.  I however do not find it necessary
to decide this
aspect in the present matter.  The reason is simply that I am
satisfied that the investigating officer did
not have reasonable and
probable cause at that time to also charge the two plaintiffs with
the rape of the deceased.
[29]
Marwanqa was a poor witness.  His evidence was vague, and it was
charicterised by a refusal to commit himself and an exaggerated

attempt to justify his own actions.  There is no doubt that he
knew that the second plaintiff’s alleged acknowledgment
to him
that he committed the offence constituted a confession and was
inadmissible.  He further knew that in none of the witness

statements the plaintiffs were implicated.  He was after all the
investigating officer who took those statements down.
Further,
if he had read what Captain Sigcu recorded was said to him by the
second plaintiff at the pointing out, it must have been
clear to him
that there was no evidence at that time implicating either of the two
plaintiffs in the rape of the deceased, and
that the evidence
implicating the first plaintiff in a murder charge was tenuous.
I am satisfied that the plaintiffs have
proved that on the facts no
reasonable and probable cause existed for charging them with rape,
and that Marwanqa must at the very
least have foreseen the
possibility that he
“
.
. .was acting wrongfully, but nevertheless continued to act, reckless
as to the consequences of his or her conduct.”
[37]
[30]
That leaves the claim for unlawful detention and the issue of the
legality of the plaintiffs continued detention post their
arrest, and
the question whether the investigating officer and the prosecutor
acted in breach of a duty as alleged in the pleadings.

Marwanqa’s evidence was to the effect that on those occasions
from 15 June 2009 when the plaintiffs first appeared in the

Magistrate’s Court, he simply took the police docket to court
and did not in any way discuss the case with the prosecutor.
As
he put it
“
I
just went there to give him the docket, I did not, I was not there to
discuss the case.”
On
14 June 2009 Marwanqa completed, what is referred to as a
“
bail
information form”,
in
respect of the two plaintiffs.
[38]
On a reading of this form its purpose is clearly to assist the
prosecutor in making a decision with regard to the continued

detention of an arrested person upon his appearance in court.
From the information supplied by Marwanqa in the two forms
it is
evident that he was of the view that the plaintiffs posed no flight
risk, and that there was nothing to show that they would
interfere
either with any of the witnesses or the investigation of the matter.
One of the questions in the form is whether
bail should be opposed.
Marwanqa left this blank.  His explanation in evidence was that
it was the duty of the prosecutor
to decide what to do.
[31]
Marwanqa denied that he opposed the plaintiffs’ application for
bail on 15 September 2009.  He testified that he
did not consult
with the prosecutor, and that he was not called to testify.
That the prosecutor did not call him as a witness
is borne out by the
record of the bail proceedings.  However, his evidence that he
did not indicate to the prosecutor that
he was opposed to bail, is in
conflict with the pleadings.
[39]
What is evident from Marwanqa’s evidence is that all he did was
to complete the bail information forms, and to take
the police docket
to Court.  He clearly did not see it as his duty to bring any
information in the police docket regarding
the nature of the evidence
against the plaintiffs to the attention of either the prosecutor or
the Court.
[32]
With regard to the plaintiffs’ bail application, the
prosecutor, Mr Ntulwana, testified that he was placed in possession

of the police docket, that he consulted with the investigating
officer, and that he opposed the application.  He based his

decision to oppose bail on the nature of the offences with which the
plaintiff were charged with, and the fact that the second
plaintiff
made inculpatory statements at the time of the making of a pointing
out.  Further, it was his decision not to present
any evidence,
the reason being that he was of the view that the plaintiffs’
evidence was insufficient to discharge the burden
of showing the
existence of exceptional circumstances as envisaged in section
60(11)(a) of the Criminal Procedure Act.
[40]
It is evident from the record at the bail proceedings in the
Magistrate’s Court that the plaintiffs bail application
was
dealt with in terms of that section.
[41]
[33]
What is clear from Ntulwana’s evidence is that he only had
regard to the contents of the pointing out, namely Exhibit
“E”,
and what he was told by Marwanqa in his consultation with him which
does not appear to have gone beyond Exhibit
“E”.  In
Ntulwana’s own words, he did not concern himself with the other
statements which were in the police
docket at the time.  The
difficulty with this evidence is that Marwanqa was emphatic that he
did not have a consultation with
the prosecutor at the bail hearing.
If accepted as true, then Ntulwana could not have based his decision
to oppose bail on
what he was told by Marwanqa.  If he did
consult with Marwanqa, it would most certainly have been to seek his
views with regard
to whether or not to oppose the application for
bail.  Considering the fact that Marwanqa was an unimpressive
witness, it
is more probable than not that Ntulwana did consult with
him, and that Marwanqa, who held the view at the time that there were
grounds to charge the plaintiffs, told him that he must oppose the
application.
[34]
As in the case of Marwanqa, Ntulwana’s views with regard to the
existence evidence implicating the plaintiffs, and the
strength of
the evidence against the plaintiffs at the time, was confined to the
contents of Exhibit “E”.  His
evidence did not
inspire much confidence that he made any real attempt to apply his
mind to the question whether there was evidence
available to support
the charges.  He clearly made no effort to read the rest of the
statements on the police docket or attempt
to give context to what
was contained in exhibit “E”.  If he had read the
statements in the docket, it would have
been clear to him that there
was no evidence to also charge the plaintiffs with rape.  While
acknowledging that the strength
of the State’s case is a
relevant consideration, Ntulwana’s evidence was further to the
effect that he had no duty
to inform the Court with regard to the
nature of the evidence in support of the charges leveled against an
accused person at a
bail hearing.  What emerged from his
evidence is that he held this view by reason of the fact that the
burden of proof in
bail applications, where 60(11)(a) of the Criminal
Procedure Act are applicable, rests on the accused person, and there
was consequently
no duty on him to inform the Court of the either the
nature of the evidence implicating the plaintiffs, or of the strength
or weakness
of such evidence.
[35]
In support of what the duties of Marwanqa were after their arrest,
and at their appearance in Magistrate’s Court when
they applied
to be released on bail, the plaintiffs placed reliance on the
judgment in
Woji
v Minister of Police
[42]
where the Court considered the role of an investigating officer in
bail proceedings.  It was found that in the context of
the
provisions of section 12(1)(a) of the Constitution a police officer
may, on the facts and in the circumstances of a particular
case, have
a duty to the Court when it is called upon to exercise its discretion
to order the continued detention of the accused.
In terms of
section 12(1)(a) the entrenched right to freedom includes the right
not to be deprived thereof arbitrarily or without
just cause.
[43]
Like any other right in the Bill of Rights, it binds the State
and its organs who have a duty not to perform any act that
infringes
these rights.
[44]
Where the
conduct of the State, as represented by the persons who perform
functions on its behalf, is in conflict with its constitutional
duty
to protect the rights in the Bill of Rights, it may constitute a
public law breach of duty that can be transposed into a private
law
breach leading to an award for damages.
[45]
The police officer in
Woji
was held to have had a public law duty not to violate the appellant’s
right to freedom by either not opposing his application
for bail, or
by placing all relevant and available facts before the Magistrate
[46]
[36]
With regard to the role of the prosecutor, the plaintiffs placed
reliance on the decision in
Minister
of Police and Another v Du Plessis
[47]
where
it was held that a prosecutor may not act arbitrarily.  He must
act with objectivity and in the public interest.
This means
that
“
A
prosecutor’s function is not merely to have the matter placed
on the roll to then simply be postponed for further investigation.

A prosecutor must pay attention to the contents of his docket.
As set out above, a prosecutor must act with objectivity and
must
protect the public interest.  In the present case that was not
done.”
[48]
A prosecutor
occupies a special position in relation to the Court, and his
paramount duty is to assist the Court in ascertaining
the truth.
In doing so he plays a vital role in
“
ensuring
due process and the role of law as well as respect for the rights of
all the parties involved in the criminal justice system.”
[49]
[37]
The defendants’ submission in argument was that the duties of
the police and the prosecutor, in relation to the exercise
of the
Court’s discretion to order the continued detention of an
arrested person, must in the present matter be considered
in the
context of the application of the provisions of section 60(11)(a).
Where that section finds application, the submission
was that there
is no question of an inquisitorial procedure, and the only issue is
whether the accused has discharged the burden
of proof placed on him
by that section.  There is no
onus
on the State to disprove the existence of exceptional circumstances.
Rather it is for the accused to prove his future acquittal
on a
balance of probability.
[50]
These submissions are in line with cases such as
S
v Viljoen
[51]
and
S
v Mathebula and Another
[52]
where it was held that the
onus
which
section 60(11) places on an accused person means that unless he has
set up a
prima
facie
case for his release, there is no duty on the prosecution to rebut
his evidence.
[38]
The defendants further submitted that the police play no role in the
manner in which bail proceedings are being conducted.
It is for
the State, represented by the prosecuting authority, to decide
whether or not to call the investigating officer as a
witness.
All an investigating officer is required to do, is to place the
docket before the prosecutor, and to leave it to
him to decide on the
further conduct of the case against the accused.  It was
submitted that the
Woji
case is distinguishable on the facts.  In that case the
detention order was made as a result of incorrect information given

by the police to the Court at the bail hearing.  Accordingly, so
it was submitted, in the absence of Marwanqa having made
a
misrepresentation, or having withheld facts from the prosecutor, it
was argued that the first defendant could not incur any liability.
[39]
Insofar as the possible liability of the second defendant is
concerned, the defendants argument was to the effect the prosecution

had a
prima
facie
case against both plaintiffs, the plaintiffs did not adduce any
evidence in the bail proceedings regarding the weakness of the

State’s case against them, thereby relieving the prosecution to
disprove the existence of exceptional circumstances, and
accordingly,
that the plaintiffs failed to discharge the burden of proof of
showing the existence of exceptional circumstances.
[40]
The position of the two the plaintiffs were different and the issue
raised must be determined in that context.  As concluded

earlier, there existed no reasonable and probable cause to charge the
plaintiffs with rape.  Insofar as the murder charge
is
concerned, the only evidence implicating the first plaintiff
consisted of hearsay evidence, which could potentially be ruled

admissible in terms of section 3(1)(c) of the Evidence Amendment
Act.  The evidence against the first plaintiff was clearly
very
weak and Marwanqa eventually correctly admitted as much in cross
examination.  Besides the hearsay evidence implicating
him in
the death of the deceased, none of the other witness statements in my
way connected him with the deceased.
[41]
The rights or duties of the police and the prosecutor which may arise
from the position of the burden of proof in bail proceedings,
must
not be equated with their public law duties which may arise from the
Constitution, and given content by the prosecutor’s
special
relationship with the Court and the role which he fulfills in
criminal proceedings.
[53]
Once an accused person is brought before a Court, the authority to
detain him, which arises from the power to arrest a suspect,
is
exhausted.
[54]
His
further detention is then within the discretion of the Court.
[55]
That discretion is subject to wide ranging statutory
directions.  Section 60(11)(a) provides that the Court must
order
that an accused person be detained in custody pending his
trial, unless the accused satisfies the Court that exceptional
circumstances
exists which in the interests of justice permits his
release.  While section 60(11)(a) may shift the burden of proof
to the
accused, the issue remains essentially the same as in any
other proceedings where a Court is called upon to decide the question

of the release of an accused on bail, namely a judicial determination
whether his release from detention is in the interests of
justice.
Because an order made in terms of section 60(11)(a) affects the
freedom of the person concerned, it brings into
play his entrenched
right in section 12(1)(a) of the Constitution not to be deprived of
his freedom arbitrarily or without just
cause.  That means, as
in the case of
Woji
v Minister of Police
,
that the police and the prosecutor may be found to have a public law
duty to assist the Court in giving effect to, and protecting
the
entrenched right of the accused in section 12(1)(a).
[42]
What the nature of that duty may be, must be determined on the facts
of the present matter in the context of section 60(11)(a)
of the
Criminal Procedure Act.  A jurisdictional prerequisite for the
operation of this section is that the accused is charged
with a
Schedule 6 offence.
[56]
The power of a Court to proceed in terms of section 60(11)(a), and
consequently the legality of its decision in terms thereof,
is
subject to the existence of a charge and the underlying decision to
charge the accused.  In
S
v Botha en ʼn Ander
[57]
it was held that the
formulation of the charge in the charge sheet, supplemented by a
written confirmation as envisaged in section
60(11A)
[58]
when necessary, is decisive to the existence of the jurisdictional
fact.  That it may on this authority not be necessary to
place
evidence before the Court hearing the bail application justifying the
decision to charge the accused with a Schedule 6 offence,
does not in
my view relieve both the police and the prosecutor from disclosing to
the Court the fact that there exists no evidence
to substantiate the
charges, or for that matter, that the only evidence implicating the
accused is very weak and entirely dependent
upon the admission of
hearsay evidence emanating from a co-accused.
[59]
[43]
To hold otherwise would mean that charges could be formulated without
the existence of any evidence, simply to cast the
onus
in bail proceedings on the accused.  Underlying the existence of
the charge in section 60(11)(a) is the availability of evidence

implicating the accused and the decision to charge him with an
offence.
[60]
A failure
by the prosecutor to inform the Court of the absence of evidence
implicating the accused in the charge would leave
the Court with the
impression that such evidence does exist.  To allow the Court to
proceed to exercise its function in section
60(11)(a) from that
premise, is in my view tantamount to misleading the Court.  It
is in conflict with the role of a prosecutor
in criminal
proceedings.
[61]
Whether
or not there are sufficient grounds for a charge as envisaged in
section 60(11)(a) is a matter which would fall within
the knowledge
of the police and the prosecution.  It is a decision which
cannot be made arbitrarily and without a proper consideration
of the
evidence.  The absence of evidence is a matter which is
accordingly relevant to such proceedings, and would place a
duty on
the prosecutor to bring that to the Court’s attention,
particularly, as in the present matter, when the police docket
is in
the possession of the prosecutor.
[44]
On the facts of the present matter I am satisfied that Ntulwana
failed in his duty to the Court.  He did not have regard,
or
properly applied his mind to what was contained in the police docket
and in Exhibit “E”.  If he had done so
he would have
realised that there was no evidence to substantiate a charge of rape
and that the evidence implicating the first
plaintiff in murder was
very weak.  As a consequence of this failure the Magistrate
proceeded in terms of section 60(11)(a)
of the Criminal Procedure Act
and determined the continued detention of the plaintiffs in terms
thereof.  I may add that in
the present matter it is doubtful
that the necessary jurisdictional fact for the application of section
60(11)(a) ever existed
at all.  Schedule 6 deals with crimes
which were committed in very specific circumstances, such as rape
where the victim was
raped more than once, or murder that was planned
or premeditated.  In this matter there was no formal charge
sheet drawn up
informing the plaintiffs of the dates and places of
the alleged crimes, the name of the deceased, and particulars of the
actions
which the State were attributing to them.
[45]
That the bail proceedings were conducted by the prosecutor did not
relieve Marwanqa of his duty in relation to those proceedings.

He failed in his duty to the Court by not bringing to the attention
of Ntulwana that there was no evidence, other than what was
contained
in exhibit “E”, to implicate the plaintiffs in the
commission of the crimes.
In
Carmichele
v Minister of Safety and Security and another
,
[62]
it was held that the
police has a clear duty to bring to the attention of the prosecutor
any factors known to them relevant to the
exercise by the magistrate
of his discretion to admit a detainee to bail.
On
Marwanqa’s version he did nothing more than to simply hand the
docket over to the prosecutor.  This he did in the
face of the
absence of any evidence implicating the first plaintiff in the rape
and the death of the deceased, other than the hearsay
evidence of the
second plaintiff.  If it is accepted that Ntulwana did consult
with him, then he clearly failed to direct
Ntulwana’s attention
to what was contained in the police docket, or rather the lack
thereof.
[46]
In so far as the second plaintiff is concerned, although there was no
evidence to support a charge of rape, his statement at
the time of
the pointing out implicated him in the death of the deceased.
Coupled with the discovery of bloodstained clothing
at his home, and
what appeared to be a false explanation, it provided reasonable and
probable cause for charging him with murder
at that point in time.
The next question is whether, accepting that the investigating
officer and the prosecutor may have
failed in their respective duties
in relation to the charge of rape, what the Magistrate on the
probabilities would have done.
[63]
Murder is a crime as envisaged in Schedule 5.  Considering
the evidence placed before him, the seriousness of the crime
of
murder, its prevalence and the nature and gravity of the possible
punishment, I am not convinced that it can be said the Magistrate,

more probably than not, would have found that the interests of
justice permits the release of the second plaintiff on bail.
[64]
By contrast, considering the weakness in the State’s case
against the first plaintiff, the tenuous nature of the evidence

implicating him in the deceased’s death, and the fact that he
did not present a flight risk, I am satisfied that the Magistrate

would in all probability have released him on bail.  That
rendered the continued detention of the first plaintiff unlawful.
[47]
That leaves the determination of the amounts to be awarded to the
plaintiffs as damages.  Unlawful detention and malicious

prosecution are forms of
iniuria
and the amount of compensation is calculated according to what is
fair and just in the circumstances of the particular case.
[65]
This inevitably means that the amount is determined by the broadest
general considerations in the exercise of a wide discretion,
and the
figure arrived at must necessarily be uncertain, dependant upon the
view of the Court of what is fair in all the circumstances.

Generally, in detention cases factors such as the duration of
detention; the presence or absence of an improper motive; the status

or standing of the plaintiff, and in the case of malicious
prosecution; the seriousness of the crime for which the plaintiff is

prosecuted; the severity of the penalties in the case of a
conviction; the period which the charge hung over the head of the
plaintiff;
and the fact that the charge had not been withdrawn until
the plaintiff was acquitted at the end of the State case, play a role

in determining the amount to be awarded for compensation.
[48]
The list of factors is not exhaustive.
[66]
In considering the amount to be awarded in an unlawful detention
case, Jones J in
Olgar
v Minister of Safety and Security
[67]
stated it broadly as follows:
“
In
modern South Africa a just award for damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth.  These considerations
should be tempered with
restraint and a proper regard to the value of money, to avoid the
notion of an extravagant distribution
of wealth from what Holmes J
called the ‘
horn
of plenty’
,
at the expense of the defendant.”
Another
factor to be considered in this enquiry is awards that have been made
in previous cases.  Although relevant, the Court
in
Minister
of Safety and Security v Seymour
[68]
cautioned that each case must of necessity be decided on its own
facts, and that there is no discernible pattern, other than that
the
Courts were not extravagant in compensating the loss.  It
further emphasised that it must be kept in mind
“
when
making such awards that there are many legitimate calls upon the
public purse to ensure that other rights that are no less
important
also receive protection.”
[69]
[49]
The plaintiffs testified that they are 25 and 29 years old
respectively.  The first plaintiff attended school until
standard
eight.  The second plaintiff passed matric.  Both
are unmarried.  They are employed, the first plaintiff as a
panel
beater and the second plaintiff at a factory.  As stated,
the first plaintiff remained in detention from the time of his arrest

on 11 June 2009 until his release on bail on 5 October 2011 while he
was on trial in the High Court.  Three months later,
on 5
December 2011, both plaintiffs were acquitted on all the charges at
the end of the State case.  Throughout this time
they continued
to face the serious charge of rape and the penalties it carries
despite the absence of evidence.  The first
plaintiff was
detained in overcrowded conditions.  He was kept in a cell with
between 40 to 50 other inmates sharing one toilet
facility.  He
was allowed to have visitors.  His girlfriend came to visit him
and his relationship with her continued
during his incarceration.
[50]
There is no evidence of specific incidents where the first plaintiff
may have been subjected to inhumane or degrading treatment,
or that
he was subjected to treatment of sufficient concern warranting
medical attention during and after his release.  He
did not
suffer degradation beyond that what was inherent in being detained in
an overcrowded cell, with the humiliation, discomfort
and stress with
which that is expected to be accompanied.
[51]
With regard to the plaintiffs’ prosecution, their damages would
consist primarily in the impairment of their good name,
physical
liberty and feelings of dignity (
contumelia
).
[70]
Relevant to the quantum of their loss is the fact that the plaintiffs
were charged with rape, a serious crime that carried
with it the
prospect of a long term of imprisonment; they were kept in custody on
this charge and continued to face the charge
until their acquittal
two years later; and the investigating officer displayed a reckless
disregard for what was contained in the
police docket.  It must
however be added that there is no reason to find that he acted with
an ulterior motive, and none has
been suggested.
[52]
Both plaintiffs’ claims also included damages for
contumelia
.
As the essence of this loss consists of the impairment of a
plaintiff’s subjective feelings of dignity or self-respect,
it
was required that they had to prove that they actually (subjectively)
felt insulted by their detention and prosecution.
[71]
Neither of the plaintiffs testified that they felt humiliated or
insulted.  They accordingly failed to prove any loss
under this
head of damages.
[53]
Considering all the circumstances and the comparable cases the
parties referred to, an appropriate award for the first plaintiff’s

detention is R400,000.00, and for the first and second plaintiffs’
prosecution, the sum of R50,000.00 each.  As the
plaintiffs were
substantially successful in their claims, there is no reason for the
defendants not to be liable for the costs
of the actions.  A
matter that requires special mention is the wasted costs incurred by
the postponement of the matter on
14 January 2014.  After the
initial postponement of the matter in June 2014, it was set down for
hearing on 14 and 15 January
2015 in order to enable the defendants
to present, and conclude the evidence of witnesses who were earlier
unavailable.  The
matter however had to be postponed early, once
again at the instance of the defendants because of the unavailability
of a witness.
I am in agreement with plaintiffs’ Counsel
that the wasted costs incurred by this, which were reserved, must
also be borne
by the defendants.
[54]
The last aspect that requires comment relates to the interest to be
awarded on the judgment.  The order that interest
must run from
14 days after the date of judgment, as opposed to the date of demand,
is in accordance with the relief sought by
the plaintiffs in their
amended particulars of claim.
[54]
In the result the following order is made:
1.
Save for the second plaintiff’s claim for unlawful detention
which is dismissed, the plaintiffs’
claims are upheld.
2.
Judgment is granted in favour of:
(a)
the first plaintiff for payment of the sum of R400,000.00 as against
the first and second
defendants jointly and severally, the one paying
the other to be absolved;
(b)
the first plaintiff for payment of the sum of R50,000.00 as against
the first defendant;
(c)
the second plaintiff for payment of the sum of R50,000.00 as against
the first defendant;
2.
The defendants pay:
(a)
interest on the aforementioned amounts at the rate of 9 percent per
annum from 14 days after the date
of judgment to the date of payment.
(b)
the first and second plaintiffs’ costs of suit, together with
interest thereon at the legal rate
of 9 percent per annum from 14
days after taxation to the date of payment.
___________________
D
VAN ZYL
ACTING
DEPUTY JUDGE PRESIDENT - BHISHO
Counsel
for the Plaintiffs:
Adv. S H Cole
Instructed
by:

Messrs Magqabi and Hlungulu
9 St Georges Road
SOUTHERNWOOD
EAST LONDON
5201
Counsel
for the Respondents:   Adv. S M Mbenenge (SC) and
Adv. A M Da Silva
Instructed
by:

State Attorney
Old Spoornet
Building Ground Floor
17 Fleet Street
EAST LONDON
Date
Heard:

02 February 2015
Judgment
Delivered:
26 March 2015
[1]
Judgment
by Roberson J delivered on 27 May 2014.
[2]
Statement
A1.  This number, and those to follow are in accordance with
the numbering allocated thereto in the police docket,
and not the
page numbers as they appear in exhibit “A’.
[3]
Exhibit
“A” page 3 to 4.
[4]
A10.
[5]
A15.
[6]
Exhibits
“A”, “B” and “C” respectively
[7]
Act
51 of 1977.
[8]
See
Minister of Police and Another
v Du Plessis
(666/2012)
[2013] ZASCA 119
(20 September 2013) at para [17].
[9]
Minister
of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA) at para [8] and
Rudolph
v Minister of Safety and Security
2007
(5) SA 94
(SCA) at para [16].
[10]
Paragraph
4 of the minute of a pre-trial conference held on 2 June 2014.
[11]
Paragraphs
11, 12, 13 and (b) and (c) of the relief claimed in the plaintiffs’
amended particulars of claim.
[12]
See
generally in this regard
Prinsloo
and another v Newman
1995
(1) SA 481
(A) at 492C – F and 495A and
Minister
for Justice and Constitutional Development v Moleko supra
at
paras [9] to [11].
[13]
Fischer v Ramahlele
2014 (4) SA 614
(SCA) at para [13].
[14]
The
relevant section is 40(1)(b) which provides that a police officer
may arrest a person without a warrant whom he reasonably
suspects of
having committed an offence referred to in Schedule 1 of the Act,
other than the offence of escaping from lawful
custody.
[15]
1996 (1) SACR 314
(A) at
321I to 322C.
[16]
(92/2012)
[2014] ZASCA 108
(20 August 2014) at paras [27] and [28].
[17]
(666/2012)
[2013] ZASCA 119
(20 September 2013).
[18]
(827/13)
[2014] ZASCA 128
(23 September 2014) at para 38.  See
Minister
of Safety and Security v Sekhoto
2011 (5) SA 376
(SCA) at paras [42] to [44] and footnote 5 in the
Woji
case.
[19]
Prinsloo
and Another v Newman
1975
(1) SA 481
(A) at 495H.  Also W A Joubert (ed)
The
Law of South Africa (LAWSA)
volume
15 at para 449.  See too
Minister
for Justice and Constitutional Development v Moleko supra
at para [20].
[20]
[1962] 1 All ER 697
HL.
[21]
At 710.  See also 714
to 715
[22]
Ibid.
[23]
Osche
v King William’s Town Municipality
1990 (2) SA 855
(E) at 858.
[24]
Supra
.
[25]
At 498H.
[26]
The remaining two
witnesses, namely Tokota and Coltman, testified in relation to their
decision to arraign the two plaintiffs
in the High Court on charges
of murder and rape.  Their evidence is irrelevant in light of
the narrowing down of the issues,
and Counsel subsequently
acknowledged this to be so.
[27]
Exhibit “A”
page 21.
[28]
Exhibit “A”
page 22 to 23.
[29]
Section
219 reads:  “
No
confession made by any person shall be admissible as evidence
against another person.”
[30]
See paras [16] and [17]
above.
[31]
Exhibit “E”.
[32]
Exhibit “A”
page 16 to 20.
[33]
It is in
my view not unreasonable to accept that to have been the position.
The statements are not to be read in isolation
and in the first
paragraph the second plaintiff is reported to have said that it were
the three of them who were at the river.
[34]
E
Du
Toit
et al
Commentary on the Criminal Procedure Act
at 24 – 52.
[35]
In terms
of
section 3
(1) (c) of the
Law of Evidence Amendment Act 45 of 1988
hearsay evidence will be admissible if the Court, having regard to
the factors set out in paragraph (c), is
“
of
the opinion that such evidence should be admitted in the interests
of justice.”
S
v Ndlovu
2002
(2) SACR 325
(SCA) shows that the provisions of
section 3
may, in
appropriate cases be used to render admissible the admission of a
co-accused.  Cases such as
Balkwell
& Another v S
[2007]
3 All SA 465
(SCA) and
S
v Libazi & Another
2010 (2) SACR (SCA) however seem to suggest the opposite.
[36]
Minister for Justice and
Constitutional Development v Moleko supra
at para [20].  This is consistent with the position in the
English Law from which the requirement of reasonable and probable

cause was adopted.  See J Neethling, J M Potgieter and P J
Visser
Law of Personality
at page 177 and
Hicks v
Faulkner
(1881) 8 QBD 167
(All ER 1881 – 1885 reprint, 187 at 192.)
[37]
Minister of Justice and
Constitutional Development v Moleko supra
at para [64].
[38]
Exhibit “A”
page 5 to 8.
[39]
In reply
to a request for particulars for trial, Marwanqa was identified as
the police official who is said to have opposed bail.
[40]
Section
60(11)(a)
reads:  “
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to – (a)  in Schedule
6, the court shall
order that the accused be detained in custody until he or she is
dealt with in accordance with the law, unless
the accused, having
been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that exceptional
circumstances exist which in
the interests of justice permit his or her release”.
[41]
Exhibit “C”.
[42]
Supra.
[43]
It
reads:  “
Everyone
has the right to freedom and security of the person, which includes
the right – (a) not to be deprived of freedom
arbitrarily or
without just cause.”
[44]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at para
[44]
and
Woji
v Minister of Police supra
at para [27] and [28].
[45]
.
Woji v Minister of
Police supra
at
paras [27] and [28].
Also
Minister of Safety and Security v Carmichele
2004
(3) SA 305
(SCA) at para [37].
[46]
At para
[28].
[47]
supra
.
[48]
At para [28].
[49]
At paras
[28] and [29].
[50]
S v
Botha en ʼn Ander
2002
(1) SACR 222
(SCA) at para [21] and
S
v Mathebula
2010
(1) SACR 55
(SCA) at para [12].
[51]
2002 (2)
SACR 550
(SCA) at 561f – g.
[52]
Supra
at
para [12].
[53]
See
Minister
of Police and Another v du Plessis supra
at paras [28] to [30].
[54]
At para
[28].
[55]
Minister of Safety and
Security v Sekhoto
2011 (5)
SA 367
(SCA) at para [42].
[56]
Du Toit
et
al
op
cit
at 9-66A.
[57]
Supra
at para [16]
[58]
This section facilitates the
existence of the charge as a jurisdictional fact by authorizing the
prosecution authority to issue
a written confirmation that it
“
intends to charge the
accused with an offence referred to in Schedule 5 or 6.”
[59]
The strength or weakness is
relevant in bail proceedings to the existence of exceptional
circumstances, or determining where the
interests of justice lie for
the purposes of section 60(11)(a) and (b).  See
S
v Kock
2003 (2) SACR 5
(SCA)
at para [15].  Also
Woji
v Minister of Police supra
at
para [3].
[60]
Minister of Police and
another v du Plessis supra
at
para [28].
[61]
See
State
v Jija and others
1991 (2) SA
52
(E) at 67I to 67B, quoted with approval in
Minister
of Justice and another v du Plessis supra
at para [28].
[62]
Supra
at
para [63].  See also
Minister
of Safety and Security v Tyokwana
supra
at para [40].
[63]
See
Woji
v The Minister of Police supra
at para [32].
[64]
Section 60(11)(b) provides that
on an accused charged with a Schedule 5 offence must satisfy the
Court in bail proceedings that
the interest of justice permits his
or her release.
[65]
Ex
aequo et bono
.
See J M Potgieter, L Steynberg and T B Floyd
Law
of Damages
3
rd
ed at page 545 and 550.
[66]
See J M Potgieter
at
al op cit
at page 545 to 550
for other factors which may be relevant to determining the amount of
damages and the authorities referred
to.
[67]
Unreported
judgment in case number ECD 608/2007 delivered on 18 December 2008.
[68]
2006 (6)
SA 320
(SCA) at para [20].  Also
Woji
v Minister of Police supra
at para [28].
[69]
At para
[20].
[70]
J M
Potgieter, L S Steynberg and T B Floyd
op
cit
at page 549 to 550.
[71]
Delange
v Costa
1989 (2) SA 857
(A) at 862A – B;
Bennet
v Minister of Police and Another
1980 (3) SA 24
(C) at 37 D – E and
Brandon
v Minister of Law and Order and Another
1997
(3) SA 68
(C) at 79B – C.  Also J Neethling, J M
Potgieter and J C Knobel
op
cit
at page 346 and J M Potgieter, L S Steynberg and T B Floyd
op
cit
at page 122.