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[2014] ZANCHC 20
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Minister of Safety And Security v Booi (1402/2008) [2014] ZANCHC 20 (23 May 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: 1402/2008
DATE: 23 MAY 2015
In the matter between
THE MINISTER OF SAFETY AND
SECURITY
.................................................................
Applicant
And
HERBERT TEBOGO
BOOI
................................................................................................
Respondent
JUDGMENT ON APPLICATION
FOR LEAVE TO APPEAL
Heard On 08/05/2014
Delivered: 23/05/2014
PAKATI J
1. The applicant, the Minister of
Safety and Security of the Republic of South Africa (“the
Minister”), applies for
leave to appeal my judgment granted on
28 February 2014. Ms S Erasmus appears for the Minister and Mr J
Schreuder for the respondent,
Mr Herbert Tebogo Booi.
2. In their notice of appeal dated 20
March 2014 the applicant listed the following grounds:
2.1 That I erred in deciding on the
issue of quantum whereas the parties had agreed that the merits and
quantum be separated and
that they conducted the trial on the basis
that the merits and quantum were indeed separated; and/or
2.2 The other grounds listed by the
applicant need not be alluded to because they flow from para 2.1
above and I am disposed to
grant leave.
3. The respondent opposes the
application. In reply to the applicant’s submissions Mr
Schreuder argued that the parties had
not been prejudiced that the
quantum and merits were not dealt with separately. In relying to the
case of MVU v MINISTER OF SAFETY
AND SECURITY AND ANOTHER
2009 (6) SA
82
(GSJ) at 89G-90D Mr Schreuder submitted that in the event that the
court grant leave to appeal to the applicant the respondent in
a
cross-application seek leave to appeal in respect of the ruling that
the applicant/plaintiff is not liable for the whole period
of the
respondent’s incarceration and that its claim did not succeed
in respect of that period. Willis J in the Mvu case
held at para 10:
“[10] In Hofmeyr v Minister of
Justice and Another
[1992 (3) SA 108
(C)] King J, as he then was,
held that even where an arrest is lawful, a police officer must apply
his mind to the arrestee’s
detention and the circumstances
relating thereto, and that the failure by a police officer properly
to do so is unlawful. The minister’s
appeal was unanimously
dismissed by what was then known as the Appellate Division of the
Supreme Court. It seems to me that, if
a police officer must apply
his or her mind to the circumstances relating to a person’s
detention, this includes applying
his or her mind to the question of
whether detention is necessary at all…. On the question of
unlawful detention per se,
as a concept to be considered separately
from the question of arrest, it is, in my respectful view,
instructive to read the Tobani
case in which Jones and Leach JJ,
together with Govender AJ, upheld, in an appeal to the full court,
the judgment of Froneman J.
I also agree with the general approach of
Howitz AJ in the Van Rensberg case even though, in that case, the
facts are distinguishable
from the present one at least inasmuch as a
warrant for arrest had been issued.”
4. Ms Erasmus in reply correctly argued
that it is the duty of the judicial officer to guard against an
accused being detained unlawfully
once he appears before court.
5. The Mvu case was decided in 2009. I
reiterate what I said in para 33 of my judgment that when an accused
is brought before a
magistrate by the prosecutor and the magistrate
orders his further detention that is the role of the court and not of
the arrestor
or the police. In MINISTER OF SAFETY AND SECURITY AND
ANOTHER v SEKHOTO AND ANOTHER
2011 (5) SA 367
(SCA) at para 42 Harms
DP had this to say:
““[42] While it is clearly
established that the power to arrest may be exercised only for the
purpose of bringing the
suspect to justice, the arrest is only one
step in that process. Once an arrest has been effected the peace
officer must bring
the arrestee before a court as soon as reasonably
possible; and at least within 48 hours, depending on court hours.
Once that has
been done, the authority to detain, that is inherent in
the power to arrest, is exhausted. The authority to detain the
suspect
further is then within the discretion of the court.”
See also ISAACS v MINISTER VAN WET EN
ORDE
1996 (1) SACR 314
(A) where the court found that the unlawful
detention of an accused ceases when the magistrate issues the
detention order in terms
of s 50 of the CPA.
6. In my view there is no reasonable
possibility that another court may arrive at a different decision
with regards to the issue
raised by the respondent.
7. Regarding the issues raised by the
applicant in relation to the issue of quantum it is my view that
leave to appeal be granted
to the Full Bench of this division as that
issue was not adequately ventilated.
ORDER:
1. The applicant, the Minister of
Safety and Security, is granted leave to appeal to the Full Bench of
this Division.
2. Costs to be costs in the appeal.
3. The respondent’s (Mr Herbert
Tebogo Booi’s) application for leave to appeal is dismissed.
BM PAKATI
JUDGE
On behalf of the Applicant: Adv S.
Erasmus
Instructed by: Office of the State
Attorney
On behalf of the Respondent: Adv J.
Shreuder
Instructed by: Gary Botha Attorneys