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[2012] ZANCHC 14
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Molopa v Minister of Safety and Security and Another (58034/2008) [2012] ZANCHC 14 (1 June 2012)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(Republic
of South Africa)
Saakno: / Case number:
58034 / 2008
Datum verhoor: / Date
heard:
16 – 20 / 04 / 2012
Datum gelewer: / Date
delivered:
01 / 06 / 2012
In
the matter between:-
OPULENT
LESIBA MOLOPA
...........................................
Plaintiff
and
MINISTER
OF SAFETY & SECURITY .
..................
First
Defendant
JOHN
BENJAMIN JONES
................................
Second
Defendant
Coram:
Lacock,
J
JUDGMENT
LACOCK, J
[1] The plaintiff, a 32
year old male, residing in Atteridgeville, Pretoria, and employed as
a judge’s clerk at the High Court,
Pretoria, had a summons
issued against the first and second defendants for payment of an
amount of R2.5 million in respect of damages
allegedly suffered by
reason of his unlawful arrest and detention and being unlawfully
assaulted by members of the South African
Police Service (SAPS). The
first defendant is the Minister of Safety and Security, and the
second defendant was at all relevant
times the investigating officer
in respect of an armed robbery and murder case investigated by SAPS
under police docket CAS 44/057/2007.
Both defendants denied liability
for payment of the damages claimed.
[2] At the commencement
of the trial and at the request of counsel for all parties, I ruled
that the trial will proceed on the issue
of liability only, and that
the question of damages be separated for later determination if
necessary.
[3] The following
factual circumstances were not in dispute:
3.1 During the evening
of 2 May 2007, a certain Mr Feng was robbed and fatally wounded at
this home in St Andrew’s Street,
Edenvale. During the robbery
gun shots were exchanged between Feng and the robbers. During this
encounter one of the robbers, know
as Surprise, was shot and removed
to the Thembisa Hospital for treatment. He did not survive the
gunshot wound and died in hospital.
3.2 During the same
evening of 2 May 2007, a cousin of the plaintiff, one Gideon, was
hospitalized and treated for a gunshot wound
at the said Thembisa
Hospital.
3.3 Subsequent to
Gideon’s admission to Thembisa Hospital, the plaintiff, Mr
Howick Mashaba Molatedi (Mashaba) and one Bridgitte
(also a cousin of
Gideon), arrived at the said hospital in a Volkswagen Citi Golf
vehicle. Only the plaintiff was allowed to see
Gideon.
3.4 On 3 May 2007
Gideon discharged himself from the Thembisa Hospital. The police were
unable to locate Gideon after he had left
the hospital.
3.5 At approximately
02:00 on 15 May 2007 a number of police officials arrested Mashaba at
his home in Atteridgeville and ransacked
his abode in search of a
firearm. They did not find a firearm.
3.6 At approximately
03:00 on the same day the aforesaid police officers and Mashaba
arrived at the home of the plaintiff in Atteridgeville
where he lived
with his parents. Here the plaintiff was arrested and held in custody
by warrant officer Beneke of SAPS whilst the
other members of SAPS
searched the plaintiff’s house for firearms. No firearm was
found. No warrant of arrest or a search
warrant was issued in respect
of these police actions.
3.7 The plaintiff and
Mashaba were taken to the Wierdabrug police station where they
arrived at approximately 05:00 that morning.
3.8 At approximately
11:10 the same morning the plaintiff and Mashaba were removed by a
police official, one Khumalo, and the second
defendant respectively
to the Edenvale police station in Edenvale.
3.9 On the instructions
of the plaintiff’s mother, attorney Mkhabela went to the
Edenvale police station on 15 May to see
the plaintiff. Although Mr
Mkhabela arrived at the said police station at approximately 15:30,
he was only allowed to see the plaintiff
at about 20:00. He
immediately noticed that the plaintiff was seriously injured, and he
arranged with the station commander to
have the plaintiff taken to a
hospital and to assist him to lay a charge of assault against the
people who allegedly assaulted
the plaintiff. These requests were
however ignored.
3.10 During the early
hours of 16 May 2007, the second defendant and Khumalo removed the
plaintiff from his holding cell at Edenvale
police station. They went
to the home of Gideon in Centurion as pointed out by the plaintiff,
but no one was at home at this address.
From there the plaintiff took
them to Gideon’s mother’s house, his sister’s house
and the house of Gideon’s
girlfriend, Phepha, but they were
unable to locate Gideon.
3.11 On the same day
(16 May) attorney Mkhabela addressed a letter to SAPS at Edenvale,
the contents whereof read,
“
RE: S v OPULENT LESIBA
MOLOPA
The above matter has reference.
We confirm having visited at
Edenvale Police Station instant regarding the murder charges that
our client is facing.
Our client was assaulted by
members of the South African Police Services during and after his
arrest.
One of the assaulting officers
is personally known to him as Godfrey and can be easily pointed out
during an identification parade.
We humbly request that he be
taken for medical observation and a proper J88 Medical Report be
compiled.
We also request that you assist
our client in opening a criminal charge of assault with intent to do
grievous bodily harm.
We trust you find the above in
order.
”
3.12 On 17 May 2007 the
plaintiff was taken to the Regional Court, Germiston, where he was
officially charged for
inter alia
robbery and murder. The case
was remanded to 24 May 2007.
3.13 After the case was
postponed, the plaintiff was taken to the Boksburg Correctional
Centre, but was refused admission because
of his injuries. He was
again taken to Edenvale police station where he was locked into a
holding cell.
3.14 On 18 May 2007 the
plaintiff was taken by the police to Thembisa Hospital where he
received some pills and ointment for his
eyes. From here the
plaintiff was taken again to the Boksburg Correctional Centre where
he was admitted to the prison hospital.
He was treated and remained
in this hospital for approximately three months.
3.15 On 31 May 2007 the
plaintiff and Mashaba brought a bail application before the Germiston
Regional Court. Both were represented
by counsel. The plaintiff and
Mashaba testified; and the second defendant testified on behalf of
the State in its opposition to
the application. Bail was refused.
3.16 Following upon a
successful appeal against the aforesaid refusal of his application
for bail, the plaintiff was released from
custody on 26 October 2007.
3.17 Twelve (12) days
later, on 7 November 2007, all charges were dropped against the
plaintiff.
[4] In their plea the
defendants denied that the plaintiff was assaulted by members of SAPS
as alleged in the particulars of claim,
and further pleaded that the
arrest of the plaintiff was lawfully effected in terms of section
40(1)(b) of the Criminal Procedure
Act of 1977 (the CPA).
4.1 Adv van
Niewenhuizen SC, on behalf of the defendants, conceded that, should
it be found that the arrest of the plaintiff was
unlawful, it follows
that his detention from the time of his arrest till the date on which
bail was refused, was likewise unlawful.
4.2 The defendants deny
any liability for the time the plaintiff was incarcerated since the
date on which bail was refused by the
regional magistrate. It is
submitted that the dismissal of the application for bail was a
judicial function performed by the presiding
magistrate, and no fault
can be attributed to the defendants for any wrongful exercise of such
discretion by the magistrate.
[5] It is common cause
that the
onus
of proving the alleged assault rests on the
plaintiff, whilst the
onus
to prove the lawfulness of the
arrest and detention rests on the defendants. See
MINISTER OF LAW
AND ORDER AND OTHERS v HURLEY AND ANOTHER
1986 (3) SA 568
(A) at
589 E to F. I will deal separately hereunder with the question of
onus
in respect of the plaintiff’s detention following
upon the refusal of bail.
It is further common
cause that the second defendant at all relevant times for purposes of
this case was an employee of the first
defendant and acted within the
course and scope of his employment as such.
[6] I shall first deal
with the alleged assault.
[7] The plaintiff
testified that at about 03:00 in the morning on 15 May 2007,
approximately 11 members of SAPS came to his house
and after gaining
entry, demanded him to hand over his firearms and further wanted him
to disclose the whereabouts of Gideon. The
police refused to accept
his explanation that he did not possess a firearm and did not know
where Gideon is, whereafter they searched
his (parental) home for
firearms, tied his hands behind his back and took him to a nearby
piece of deserted open veld where he
was severely assaulted. He
testified that he was suffocated with a plastic bag over his head,
slapped and kicked, and that he was
threatened that his private parts
would be cut off with a bolt cutter, and that he would be shot. All
the time while the plaintiff
was assaulted, and which assault lasted
for about one hour, the police wanted to know where Gideon was and
where the firearm was.
7.1 The plaintiff’s
evidence of this assault was corroborated by Mashaba who was present
and witnessed the entire event.
7.2 Further uncontested
corroboration of the assault on the plaintiff is to be found in the
evidence of attorney Mkhabela who testified
that when he visited the
plaintiff at the Edenvale police station on 15 May 2007, the latter
was seriously injured.
7.3 Warrant officer
Beneke testified that he was present when Mashaba and the plaintiff
were arrested at their respective homes,
but denied that either
Mashaba or the plaintiff was assaulted by the police as alleged. He
further testified that the plaintiff,
when arrested, had no visible
injuries on his person.
[8] Ms van Niewenhuizen
conceded, correctly so, that particularly in view of the evidence of
attorney Mkhabela, no inference can
be drawn other than that the
plaintiff was assaulted by members of the SAPS in the period between
his arrest at his parental home
and his arrival at Edenvale police
station later during that day. In the absence of any evidence to the
contrary there is no reason
not to accept the evidence of the
plaintiff and Mashaba in this respect. It therefore follows that the
plaintiff has succeeded
in proving on a balance of probabilities that
he was unlawfully assaulted by members of the SAPS whilst in police
custody on 15
May 2007.
[9] It is common cause
that the second defendant was neither present nor involved when the
plaintiff was assaulted, and cannot be
held liable for any damages
the plaintiff may have suffered as a result thereof. Since it is
common cause that, at the time when
plaintiff was assaulted by
members of SAPS, these members who assaulted him were employed by the
first defendant and acted in the
course and scope of their
employment, the first defendant is liable towards the plaintiff for
any damages he may prove to have
suffered as a consequence of that
assault.
[10] Section 40(1)(b)
of the CPA relied upon by the defendants as justification for the
alleged lawful arrest of the plaintiff,
reads,
“
(1) A peace officer may
without warrant arrest any person-
Who commits or attempts to
commit any offence in his presence;
Whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than
the offence of escaping from
lawful custody;
”
In
DUNCAN v MINISTER
OF LAW AND ORDER
1986 (2) 805 (AD) it was held,
“
The so-called
jurisdictional facts which must exist before the power conferred to
by s 40 (1) (b) of the present Act may be invoked,
are as follows:
The arrestor must be a peace
officer.
He must entertain a suspicion.
It must be a suspicion that the
arrestee committed an offence referred to in Schedule 1 to the Act
(other than one particular
offence).
That suspicion must rest on
reasonable grounds.
”
(at 818 G to H).
The only jurisdictional
fact in issue in this matter is whether the arrestor, warrant officer
Beneke (Beneke) had reasonable grounds
or a reasonable suspicion
justifying the arrest of the plaintiff. It is trite that the
onus
rests on the defendants to prove the presence of this jurisdictional
fact. Although Adv Botha SC, appearing for the plaintiff,
initially
submitted that, on the strength of the judgment in
LOUW AND
ANOTHER v MINISTER OF SAFETY & SECURITY AND OTHERS
,
2006 (2)
SACR 178
(T) and other provincial judgments that followed the Louw
judgment, the defendants had to prove a fifth jurisdictional fact,
i.e.
“
if there is no reasonable apprehension that the
subject will abscond, or fail to appear in court if a warrant is
first obtained
for his/her arrest, or a notice or summons to appear
in court is obtained, then it is constitutionally untenable to
exercise the
power to arrest
” (Louw at 187 (d) to (e)), he
abandoned this submission when the judgment of the Supreme Court of
Appeal in
MINISTER OF SAFETY & SECURITY v SEKHOTO
2011 (5)
SA 367
(SCA) was brought to his attention. The aforesaid approach in
LOUW (supra)
was explicitly rejected by the SCA.
“
The four express
jurisdictional facts for a defence based on s 40(1)(b) have been set
out earlier, but, to repeat the salient wording:
‘a peace
officer may without warrant arrest any person whom he reasonably
suspects of having committed an offence referred
to in Schedule 1’.
Schedule 1 offences are serious offences.
With all due respect to the
different High Court judgments referred to, applying all the
interpretational skills at my disposal
and taking the words of Langa
CJ in Hyundai seriously, I am unable to find anything in the
provision which leads to the conclusion
that there is, somewhere in
the words, a hidden fifth jurisdictional fact. And because
legislation overrides the common law, one
cannot change the meaning
of a statute by developing the common law.
”
(at 377 D to F).
[11] What therefore
needs to be determined is whether Beneke had reasonable grounds to
suspect that the plaintiff committed the
crimes of murder and robbery
and for which he was arrested. The test to be applied for this
purpose is an objective one.
“
And it seems clear that
the test is not whether a policeman believes that he has reason to
suspect, but whether, on an objective
approach, he in fact has
reasonable grounds for his suspicion.
”
(
DUNCAN v MINISTER
OF LAW & ORDER (supra)
at 814D). See further
MVU v
MINISTER OF SAFETY & SECURITY
,
2009 (2) SACR 291
(GSJ) at 298
C.
[12] The plaintiff
impressed me as an honest and reliable witness. He had a clear
recollection of the ordeal he was subjected to
by the members of SAPS
during the early hours of 15 May 2007, and was able to describe the
chain of events during his arrest and
his detention in particularity.
He did not contradict himself in any material respect, and did not
revert to conjecture and speculation
during his testimony. I do not
agree with Ms van Niewenhuizen’s submission that the plaintiff
appeared to be uneasy in the
witness stand. To my mind he came across
as a confident and self-assured young man who knew what he testified
about and who believed
in the veracity of his evidence. His evidence,
and more particularly that he was brutally assaulted by the police,
was convincingly
corroborated by Mashaba and attorney Mkhabela.
Warrant officer Beneke however was, to say the least, an untruthful
and pathetic
witness. He blatantly and deliberately falsely denied
that the plaintiff was assaulted in his presence whilst in police
custody
after his arrest. He was extremely vague and uncertain and
did not hesitate for a moment to adjust his evidence whenever the
shoe
pinched. For instance:
12.1 He testified that,
when he arrested the plaintiff, he handcuffed him with police cuffs.
When he realized that the plaintiff’s
testimony viz that his
hands were tied behind his back with a cable tie was not disputed, he
immediately backed down and said that
he was now not certain any
more.
12.2 On page 170 of the
record Mr Beneke testified as follows:
“
Meneer u is baie vaag oor
wat gebeur het. U het op ‘n stadium ook gesê jy het die
afleiding gemaak toe Mashaba sê
dat Gideon en …[tussenbei]
--- Hulle was saam.
En Molopa was saam …
[tussenbei] met die roof is. Was die vraag spesifiek gevra aan
Mashaba wie was saam met jou tydens die
roof? --- Ek het nie die
vraag gevra nie nee.
Het u gehoor iemand vra daardie
vraag? --- Daar was baie mense saam met my.
Nee, nee luister na my vraag. Het
u gehoor een van die beamptes vra daardie vraag? --- Ek verstaan nie
‘n swart taal nie.
Ek het geen kennis van swart tale nie so ek
kan nie sê daar is iemand wat daardie vraag gevra het nie.
HOF: Maar wat u verstaan het, het
u in ‘n taal wat u verstaan het gehoor of iemand daardie vraag
gevra het? --- Nee.
”
12.3 At first he
testified that he obtained information regarding the robbery and
murder from an unknown police official at Edenvale
police station.
Later on he adjusted his evidence by stating that he could have
obtained this information from the investigating
officer or his
commanding officer.
Other instances of
Beneke’s evasive evidence will become apparent from his
testimony quoted hereunder.
Mashaba too made a good
impression on me as a witness, and I have no hesitation to accept his
evidence as reliable and credible.
It is correct, as pointed out by
Ms van Niewenhuizen, that his evidence differed from that of the
plaintiff in respect of whether
on their way to the hospital where
Gideon was hospitalized they first met other people at the Edenvale
offramp, and who dropped
who off first after their return from the
hospital, but I do not think that Mashaba or the plaintiff lied about
these events. Since
the plaintiff was the person with whom Gideon
made the telephonic arrangements to come to the hospital, and Mashaba
was merely
asked to accompany him, one would expect that the
plaintiff would have remembered the chain of events in more detail
than Mashaba.
The fact that Mashaba did not remember all detail does
not mean that his evidence should be regarded as unreliable.
By reason of the
aforesaid I am satisfied that this matter should be resolved on the
strength of the evidence of the plaintiff as
corroborated by Mashaba
and attorney Mkhabela. The evidence of Mr Beneke as far as it differs
from that of Mashaba and the plaintiff,
is rejected.
[13] It is common cause
that, on the day when Mashaba and the plaintiff were arrested, Gideon
was the main suspect in the robbery
and murder of the late Mr Feng.
This is evident from the undisputed evidence of the plaintiff in
respect of his first encounter
with the second defendant after his
arrest, as well as from the contents of the record of the bail
application. Therefore, had
Beneke made enquiries at Edenvale police
station about this incident, he would probably have been told or
alerted to the name of
Gideon as one of the suspects. This
probability is strengthened by the evidence of Mashaba and the
plaintiff who testified that,
when confronted by the police in the
early hours of the morning of 15 May, they (the police) demanded to
know where Gideon is.
Beneke also knew that the police were looking
for a firearm used during the robbery. It is improbable that, when
making enquiries
about the case, he would not have been given the
name of the main suspect. I therefore find that after Beneke received
information
from an informer as testified by himself and he followed
up that information at Edenvale police station, he knew that the main
suspect in the case was a certain Gideon and that the police were
still looking for a firearm used at the crime scene. His denial
that
the police was after Gideon’s blood and that he heard the name
of Gideon for the first time from Mashaba, during his
arrest, is
therefore rejected.
[14] If, as testified
by Beneke, that, according to his information received from an
informer, Mashaba was a suspect in the murder
and robbery case, and
that Mashaba tendered the names of the other culprits involved, why
then was it necessary to assault Mashaba
and the plaintiff? The
evidence of Mashaba and the plaintiff viz that they were assaulted in
an effort to compel them to reveal
the whereabouts of Gideon, is far
more probable.
[15] Beneke explained
the grounds on which he suspected that the plaintiff was one of the
perpetrators involved in the murder and
robbery of the late Mr Feng
in the following terms:
“
Ek het inligting ontvang
van ‘n betroubare bron soos ek sê dat hy aan my inligting
kan verskaf ten opsigte van ‘n
moord en gewapende roof wat in
Johannesburg omgewing plaasgevind het waarby ‘n redelike
prominente Sjinees, ‘n Sjinese
besigheidsman doodgeskiet is.
Dit het my ‘n wyle gevat om uit te vind dat dit in Edenval
Polisiestasie omgewing was en ek
het met, ek kan nie onthou met ‘n
polisiebeampte by Edenvale Polisiestasie kontak gemaak en sekere
aspekte rondom die inligting
wat ek ontvang het bevestig ten opsigte
van die redelike prominente Sjinees wat doodgeskiet is.
”
(Record p. 150)
“
Hierdie saak was nie u, u
was nie ondersoekbeampte in hierdie saak nie, is dit korrek? --- Glad
nie. Ek was glad nie, ek het inligting
ontvang ten opsigte van
hierdie saak, dit is nie, dit hou glad nie verband met enige sake van
Wierdabrug nie. Ek het net behulpsaam,
ek het basies die
ondersoekbeampte behulpsaam gewees om die verdagte te arresteer.
”
(Record p. 156)
“
Maar u het nou spesifiek
vir die eiser daardie dag gearresteer. Hoekom op sterkte van watse
inligting het u hom gearresteer? ---
Ek het net inligting gehad ten
opsigte van Mashaba en Mashaba het aan my, het te kenne gegee dat
daar was vier mense wat saam met
hom was en toe hy sê saam met
hom was het ek afgelei dat hulle saam was tydens die roof daarom het
ek die tweede verdagte
ook gearresteer.
”
(Record p. 157)
“
So as dit dan korrek
verstaan het u ‘n redelike vermoede gevorm op sterkte van wat
Mashaba gesê het en die inligting
tot u beskikking dat die
eiser … [tussenbei] --- Moontlik ook kon betrokke wees by die
gewapende roof.
”
(Record p. 157)
“
HOF: Ek probeer net
verstaan hoe die polisie se hele ondersoek in hierdie aangeleentheid
geloop het. Verstaan ek dit reg dat u was
nie deur ‘n
ondersoekbeampte gekontak en gesê wees my asseblief behulpsaam
met hierdie moord en roof nie? --- Edelagbare
ek het hulle vir
Edenvale Polisiestasie na ‘n proses het ons by Edenvale
Polisiestasie uitgekom.
Ja-nee ek verstaan dit ek gaan
nou terugkom daarnatoe. Maar voordat u nou die inligting ontvang het?
--- Nee …[tussenbei]
Is u nie gekontak deur ‘n
ondersoekbeampte? --- Nee.
En te sê luister hier is
roof en moord en ek soek die mense wat daarby betrokke was nie? ---
Nee.
U het inligting gekry? --- Ek het
inligting van ‘n betroubare bron gekry.
Ja en op sterkte van daardie
inligting gaan u heen en u kontak vir wie? --- En ons begin, ek val
nie net in die pad en sê
right ons gaan nou die man arresteer,
want ek hoor dat die advokaat sê vir my ons moet daardie man
gaan arresteer nie. Dit
werk ongelukkig nie so nie, want dit is waar
die eiser vandaan kom.
Nee ek verstaan dit. --- Ons
probeer om soveel inligting as wat ek kan kry ten opsigte van die
saak ek moet iets bevestig. Die beriggewer
het na my toe gekom en
gesê daar is ‘n prominente Sjinees in Johannesburg
doodgeskiet. En hierdie en hierdie of net
hierdie man, net een man is
betrokke by die voorval.
Goed ek verstaan dit. Nou probeer
u vasstel? --- Korrek.
Wat was die omstandighede
waaronder die man …[tussenbei] --- Korrek.
Gedood is. --- Korrek.
En wie is die logiese persoon met
wie u behoort te praat? --- Die polisiestasie, ondersoekbeampte of
die bevelvoerder van een van
die ondersoekbeampte.
Dit is tog logies die
ondersoekbeampte nie waar nie? En u kontak nie die ondersoekbeampte
nie? --- Dit kan die bevelvoerder van
die ondersoekbeamptes gewees
het.
Maar meneer is die logiese, ek
probeer net u werkswyse verstaan. --- Ja.
Want as die polisie op hierdie
tipe van inligting mense gaan arresteer in die middel van die nag dan
ys ek waar ek hier sit. ---
Nee korrek.
Die logiese is tog u kontak die
ondersoekbeampte, nie war nie? --- Korrek.
Maar u het dit nie gedoen nie?
--- Ek kan nie sê of ek met, soos ek sê kan nie sê
of ek met ondersoekbeampte gepraat
het of met wie ek gepraat het nie,
maar ek het met iemand van Edenvale gepraat wat sekere dinge bevestig
het. Soos wat is die saaknommer.
”
(Record p. 173 to 175)
“
Kom ons vat nou net
hierdie hele gebeure. Julle is by Mashaba hy word onder bedwang
gebring. Die vraag word nooit pertinent wat
u gehoor het vir hom
gevra nie u maak ‘n afleiding dat op Opulent is betrokke by ‘n
roof. Gaan huis toe, na Opulent
se huis toe die eiser sertifiseer
huis toe, u staan so u weet nie of hulle die huis binne is of nie u
het dit nie gesien nie, iemand
bring hom en sê dit is Opulent
ons het niks gevind nie, een vuurwapen gevind nie? Is ek reg nog? ---
Korrek.
En op grond daarvan arresteer u
hom en plaas hom in hegtenis? --- Mashaba het vir my gesê hy
was saamgewees.
Het u vir mnr Molopa een vraag
gevra voor u hom gaan arresteer het? --- Nee ek het vir Mashaba gevra
is dit die man en hy het gesê
ja dit is die man.
Meneer u weet julle gaan na ‘n
man se huis toe in die middel van die nag ‘n betroubare bron se
inligting. Daar word
‘n huis se deur afgeskop, hy word op die
grond platgedruk in die vroeë oggendure 02:00 – 03:00. Hy
sê net
Opulent en Gideon en Surprise of wie ook al was saam. Hy
word gearresteer daardie tyd. U gaan na ‘n ander huis toe en
net
dit, u vra die gearresteerde persoon nou die eiser nie een vraag
nie en u arresteer hom? --- Ek het vir die man wat in my voertuig
was
gevra die man? Toe sê hy dit is die man wat saam was.
Herhaal die een nou, u het watse
voertuig? --- Mashaba wat in my voertuig was het vir my aangedui dat
dit is die man wat saam was.
Ja dit was u getuienis. My vraag
aan u is u vra mnr Molopa nie een vraag nie? --- Ek is nie die
ondersoekbeampte nie.
Maar u is die arresterende
beampte? --- Ja.
U doen geen moeite om hom ‘n
paar vrae te vra om u te vergewis ek het redelike gronde om hierdie
man vir so ‘n ernstige
misdaad van sy Vryheid te ontneem nie?
--- Meneer ek kan nie vir u sê wat ek vyf jaar terug op een
spesifieke dag gedoen
het, presies gedoen het so laat het ek
opgestaan, so laat het ek my tande geborsel, so laat het ek dit
gedoen, so laat het ek dat
gedoen nie. Ek kan nie dit vir u sê
nie.
HOF: Nee mnr Beneke dit is nie
die punt nie. Ek kan dit verseker ook nie doen nie. Die pertinente
vraag van die advokaat was u,
uself wat daar in die getuiebank staan
wat die arresterende polisiebeampte was, u gaan arresteer ‘n
man op ‘n baie
ernstige klagte van roof en moord? --- Korrek.
Op inligting van iemand wat bloot
sê ons was saam, die eiser was ook saam? --- Korrek.
Dit is al inligting wat u het?
--- Korrek.
En u vermoed hy verwys na die
roof en die moord? --- Korrek.
Gaan arresteer u hierdie man, u
vra hom nie ‘n enkele vraag of hy betrokke was stem jy saam met
wat Mashaba sê jy was
saamgewees, u vra hom nie ‘n enkele
vraag nie en dit is nie asof u nie kan onthou nie, dit is u eie
getuienis is dat u hom
geen vrae gevra het nie? --- Ek kan nie vir u
sê of ek hom vrae gevra het nie. Ek kan nie sê wat ek hom
gevra het nie.
Ek kan nie …[tussenbei]
Nou kan u dan …
[tussenbei] --- Ek kan nie onthou dat ek het daar was so ‘n
voorval nie.
Ekskuus ek is jammer. --- Ek kan
nie onthou.
Maar kan u onthou of u enige
ander vermoede of gronde gehad het waarop u vermoed het dat die eiser
betrokke was by hierdie misdryf
behalwe dit wat Mashaba vir u gesê
het? --- Ek hoor wat, ek hoor wat die advokaat vir my sê ek
hoor wat u vir my sê,
ek kan nie dink dat ek hom net
gearresteer het nie. Nee ek kan dit nie dink nie, maar ek kan nie vir
u sê watse vrae of ek
hom vrae gevra het hoeveel vrae ek het
hom gevra het, watse tipe vrae ek hom gevra het nie, maar ek sal hom
nie net arresteer op
gronde van iets wat uit die lug uit val nie.
Maar u weet dit is nie heeltemal
so eenvoudig nie mnr Beneke laat ek net vir u verduidelik. Hierdie
dis ‘n siviele eis. ---
Korrek.
En die bewering wat namens die
polisie in hierdie pleitstukke gemaak is, is dat die polisie het
redelike gronde gehad om te vermoed
dat die eiser by ‘n misdryf
betrokke was. --- Korrek.
Nou by wie anders as die
arresterende beampte kon die verweerders daardie inligting gekry het.
--- Ja.
Miskien kan u vir my help. --- Ek
kan nie, soos ek sê ek weet nie wat ek vir die man, wat ek vir
wie gevra het nie. Ek weet
nie wat ek gesê het nie, ek weet nie
alles wat gevra is nie. Ek weet die man is gearresteer vir ‘n
gewapende roof en
‘n moord. Ek weet ek het gesê ek is van
die polisie ons kom hierdie huis visenteer. Daar was beweging
binnekant, daar
was ‘n gewapende roof gewees, ek het die deur
oopforseer by die eerste huis. Ek het die man wat binne was, hy was
besig om
in ‘n kas in te klim. Ek weet nie wat is binne-in die
kas nie. Ek het hom uit die kas uitgetrek, hy het homself, hy het hom
geïdentifiseer as die man wat ek soek. Daar is gesê dat
die mense was saam ek het dit genoem in my verklaring, ek kan
nie
onthou of ek die vrae gevra het nie en of iemand anders die vrae
gevra het nie. Of die ene so gesê het of daardie so
gesê
het nie, ek kan nie, ek kan nie vir u dit sê nie dit is vyf
jaar terug. Dit is een aand in vyf jaar terug waar
ek op daardie, ek
het vir die advokaat gesê ek het in die 80 arrestasies gemaak,
watter een spesifiek die ene is ek kan nie
onthou nie. Ek weet daar
was ‘n voorval ek weet daar was ‘n ding van Edenvale wat
ek op gewerk het. Dit kan wees dat
ek met Jones gepraat het. Dit kan
wees dat hy vir my Surprise se naam genoem het en daarom het ek die
man gearresteer omdat die
man sê maar daardie ene en daardie
ene en Surprise was saam en dat ek die naam Surprise gehad het. Ek
kan nie onthou nie.
Dit is nie, ek weet dit is nie in my verklaring
nie.
”
(Record p. 181 to 184)
“
Die advokaat het nou aan u
gestel dat die polisie toe hulle by die eiser kom mnr Mashaba ook,
maar terwyl ons met die eiser se saak
is kom ons konsentreer op wat
daar gebeur het. Hulle wou nommer 1 by hom weet waar is ‘n
vuurwapen, hulle het ‘n vuurwapen
gesoek? --- Korrek.
Stem u daarmee saam? --- Korrek.
Nommer 2 en dit is wat hy getuig
het, het hy gesê hulle wou by hom weet waar is ene Gideon? ---
Korrek.
Is dit so? --- Dit kan so wees,
dit is seker so ja. Heel moontlik, ja.
Ja maar nou gee u vir my ‘n
klomp antwoorde? --- Ja dit is so.
Dit kan so wees, heel moontlik.
--- Dit is so.
Ja ek is is nie seker wat is u
antwoord nie? --- Dit is so, maar ek was nie daar nie so ek kan nie
vir u sê dit is wat daar
gesê is nie.
Goed. Kom ons wees dan billik
teenoor uself. As die eiser getuig dat dit is primêr die twee
dinge wat die polisie by hom wou
weet waar is ‘n vuurwapen en
waar is Gideon? --- Korrek.
Dan kan u dit nie betwis nie? ---
Ek kan nie.
”
(Record p. 188)
I have already found
that, on a balance of probabilities, Mashaba and the plaintiff were
arrested and tortured not because they
were suspects in the murder
and robbery case, but to assist the police in their efforts to locate
Gideon. But even if I am wrong
in my assessment of the evidence, I am
convinced that, on the version of Beneke, no reasonable grounds,
objectively considered,
were present justifying the arrest of the
plaintiff.
15.1 Beneke was not the
investigating officer in the Feng case, neither did he arrest the
plaintiff on the instructions of the investigating
officer. He merely
acted upon information received from a “betroubare bron”
without revealing either the identity of
the informer or the nature
and contents of the information received.
15.2 His efforts to
confirm this information appears to be extremely cursory. The least
one would have expected was for him to share
this information with
the investigating officer and to obtain his views on the necessity to
arrest the plaintiff without a warrant.
This was not done.
15.3 The only
information Beneke had that the plaintiff might be involved in the
murder and robbery case, was the alleged statement
by Mashaba that he
(Mashaba), Gideon, Surprise and the plaintiff were together. From
this information Beneke inferred that Mashaba
meant that they were
all involved when the deceased was robbed and killed. He never
established or even attempted to establish
from Mashaba whether he
thereby meant or implied that the four of them committed the crime.
15.4 When the plaintiff
was arrested Beneke did not even ask him a single question to
ascertain whether the plaintiff was involved
in the alleged offence.
See his evidence quoted above.
15.5 No firearm was
found in the possession or under the control of the plaintiff.
15.6 Beneke did not
even know that Gideon had left the hospital in the same vehicle
driven by the plaintiff when he had visited
Gideon at the hospital on
the evening of 2 May, the day after Mr Feng was shot.
[16] For these reasons
I find that the first defendant failed to prove that the plaintiff
was lawfully arrested.
[17] Although Ms van
Niewenhuizen conceded that, should I find that the plaintiff was
unlawfully arrested, it follows that he was
unlawfully detained till
the date of his application for bail was refused, I nevertheless find
it necessary to deal with this period
of detention since the second
defendant as the investigating officer surfaced for the first time
and came on the scene shortly
after the plaintiff was arrested, and
since then Beneke was no longer involved or responsible for the
plaintiff’s further
detention.
17.1 The second
defendant did not testify. Save for his testimony in the bail
application, no evidence was tendered on behalf of
the respondents
justifying the detention of the plaintiff subsequent to his arrest.
17.2 In the absence of
any evidence justifying the plaintiff’s further detention, and
in view of my aforesaid finding that
the plaintiff was unlawfully
arrested, it follows that no other inference can be drawn but that
the respondents failed to discharge
the
onus
of proving the
lawfulness of the further detention of the plaintiff for the period
since he was arrested until the date on which
his bail application
was dismissed.
[18] It will be noted
that I have not dealt with the issue of the exercising of their
discretion by Beneke and the second defendant
(see
MINISTER OF
SAFETY & SECURITY v SEKHOTO (supra)
,) since this issue, by
reason of my aforesaid finding, did not arise. This cause of action
was in any event not pleaded and relied
upon in the plaintiff’s
particulars of claim.
[19] What remains to be
decided is whether the defendants are liable for the (unlawful)
detention of the plaintiff for the period
since the date his bail
application was dismissed till the date of his release from custody.
[20] This cause of
action was pleaded as follows in the plaintiff’s particulars of
claim:
“
4.7 The 2
nd
Defendant was the
Investigating Officer. He opposed bail well knowing that:
4.7.1 He had no sworn statement
connecting the Plaintiff to any of the alleged crimes;
4.7.2 There existed no extrinsic
evidence against the Plaintiff like fingerprints, ballistics, etc.
4.7.3 He had no evidence that the
Plaintiff assisted a certain “Gideon” to discharge
himself from hospital.
4.7.4 As a result of the 2
nd
Defendant’s opposition to bail, the bail application of the
Plaintiff was refused and was the Plaintiff incarcerated until
24
October 2007 when bail was granted on Appeal by the WLD.
4.9 On 7 November 2007 all
charges were withdrawn against the Plaintiff.
4.10 The aforesaid detention was
unlawfull and was done on the instance and insistence of the 2
nd
Defendant.
”
[21] To my mind Ms van
Niewenhuizen is correct in submitting that the
onus
rests on
the plaintiff to prove on a balance of probabilities that the second
defendant’s conduct caused or at least contributed
to the
magistrate’s decision to refuse bail. The plaintiff’s
further detention since bail was refused except to the
limited extent
referred to hereunder, falls outside the ambit of section 40 of the
CPA and, once an arrestee is charged and brought
before a court of
law,
“…
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.
”
(
SEKHOTO (supra)
at 383D).
[22] This however does
not mean that the investigating officer is, once a suspect is brought
before a court and charged, off the
hook. The legal duty owed by the
State and its organs to members of the public in terms of the
Constitution had been comprehensively
dealt with by the
Constitutional Court in
CARMICHELE v MINISTER OF SAFETY &
SECURITY AND ANOTHER
,
[2001] ZACC 22
;
2001 (4) SA 938
(CC). It will be
presumptuous of me to attempt to traverse the legal principles
developed in that judgment, and I will therefore
confine myself to
quoting from the judgment those extracts applicable to this matter.
“
Under both the IC and the
Constitution, the Bill of Rights entrenches the right to life, human
dignity and freedom and security
of the person. The Bill of Rights
binds the State and all of its organs. Section 7(1) of the IC
provided:
‘
This
chapter shall bind all legislative and executive organs of State at
all levels of government.’
Section 8(1) of the Constitution
provides:
‘
The
Bill of Rights applies to all law, and binds the Legislature, the
Executive, the Judiciary and all organs of State.’
It follows that there is a duty
imposed on the State and all its organs not to perform any act that
infringes these rights. In some
circumstances there would also be a
positive component which obliges the State and its organs to provide
appropriate protection
to everyone through laws and structures
designed to afford such protection.
”
(at 957 D to F)
“
The police is one of the
primary agencies of the State responsible for the protection of the
public in general and women and children
in particular against the
invasion of their fundamental rights by perpetrators of violent
crime.
In the present case the complaint
against Klein (the investigating officer in Eurona’s case) is
not that he was guilty of
a mere omission. Coetzee was in custody and
Klein had a clear duty to bring to the attention of the prosecutor
any factors known
to him relevant to the exercise by the magistrate
of his discretion to admit Coetzee to bail. He made a positive
recommendation
that Coetzee should be released on warning in the
clear knowledge that the prosecutor would act on such
recommendation.
”
(at 965 A to C)
“
The evidence is, in our
view, sufficient to justify a conclusion that, if bail had been
opposed and if all relevant information
pertaining to Coetzee’s
background and sexual problems had been placed before the magistrate,
bail might have been refused.
That is sufficient to put the
respondents on their defence in relation to this issue.
”
(at 969 G to H)
Although the
Constitutional Court dealt in
CARMICHELE
with a case in which
bail was allegedly unlawfully granted or the suspect released on his
own recognizance, the aforesaid principles
are, to my mind,
mutatis
mutandi
applicable to the present matter.
22.1 The aforesaid
principles were applied by Tshiki J in
BOTHA v MINISTER OF SAFETY
& SECURITY AND OTHERS
,
2012 (1) SACR 305
(ECP). Having regard
inter alia
to the statutory duties of members of SAPS in
accordance with
section 13
of the
South African Police Service Act,
68 of 1995
, and relying on the following
dictum
in
FASE v
MINISTER OF SAFETY & SECURITY
,
[1997] ZACC 6
;
1997 (3) SA 786
(CC),
“
[60] Notwithstanding these
differences, it seems to me that there is no reason in principle why
“appropriate relief”
should not include an award of
damages, where such an award is necessary to protect and enforce chap
3 rights. Such awards are
made to compensate persons who have
suffered loss as a result of the breach of a statutory right if, on a
proper construction of
the statue in question, it was the
Legislature’s intention that such damages should be payable,
and it would be strange if
damages could not be claimed for, at
least, loss occasioned by the breach of a right vested in the
claimant by the supreme law…
”
(Botha 314(b)),
Tshiki J concluded,
“
It follows from what I
have stated above that our constitutional provisions referred to
above make it obligatory for police officers
to first establish the
legal justification for the further detention of a person so as to
relay such information to the public
prosecutor and the latter would
then, after applying his mind to the matter, be in an informed
position whether or not to apply
for the further detention of the
person in custody. In my view, and in practice, it is the police
official investigating the case
who should be in a position to, and
must, inform the prosecutor about the strength or otherwise of his or
her case. Failure by
the police officer to apply his mind in the
manner suggested supra, could result in the further detention being
contrary to the
constitutional provisions and liable to be declared
to be unlawful.
”
(at 317 e to g).
22.2 In view of the
SEKHOTO
judgment (
supra
), it would appear that Tshiki
J’s exposition of the
onus
of proof in paragraphs [29]
and [30] of the judgment, may not be correct. I therefore do not
intend to follow same.
[23] By reason of the
aforesaid, I conclude that there is a legal duty on an investigating
officer to disclose to a prosecutor and/or
the presiding judicial
officer, whenever the release of a suspect on bail is considered, all
relevant information and/or evidence
that may impact on the court’s
exercising of its discretion to grant or refuse bail; irrespective of
the section of the CPA
under which bail is considered. A willful or
negligent failure to comply with this duty may give rise to a
liability for payment
of damages. I can think of no reason why the
well established test for liability for negligent conduct as laid
down in
KRUGER v COETZEE
,
1966 (2) SA 428
(AD) at 430 E to F,
should not apply in matters such as this.
[24] It is common cause
that the plaintiff was charged and brought before court for the first
time on 17 May 2007 and that he was
remanded in custody on the
request of the prosecutor acting on the advice of the second
defendant. It is further common cause that
the plaintiff’s
subsequent application for bail was opposed by the prosecutor acting
on the advice and testimony of the second
defendant. Although not
pleaded by the plaintiff in clear terms, the parties approached the
matter in the trial on the footing
of whether the second defendant
willfully or negligently breached his legal duty as stated above.
Question is whether the plaintiff
succeeded on a balance of
probabilities to prove that the second defendant unlawfully breached
that duty, and whether such breach
(if any) caused or contributed to
the further detention of the plaintiff since his first court
appearance on 17 May 2007. To my
mind the reply hereto is an
affirmative one.
24.1 I have already
found that the plaintiff was unlawfully arrested on unreasonable
grounds. No evidence was tendered for justifying
the continuous
detention of the plaintiff subsequent to his arrest. The defendants
did not even attempt to reveal the grounds on
which the prosecutor
was requested to move for the further detention of the plaintiff on
17 May and until his bail application
was heard.
24.2 The plaintiff
testified that, since his first interview with the second defendant,
the latter wanted him to assist the police
in finding Gideon. He
testified that he took the second defendant to Gideon’s home,
his mother’s house and to his girlfriend’s
house, but
Gideon was nowhere to be found. He further testified that, on the day
he was charged and brought to court (17 May) the
second defendant
“
told me that he was going to charge me with murder because
he thinks that if I am in prison Gideon will bring himself in
,”
and further, “
So that I stay in prison because if I am in
prison he thinks Gideon will bring him in. I asked him why do you
think he will bring
himself in he tells me that according to what he
sees I am Gideon’s trustee and he does not want to get me
hurt.
” This evidence was not disputed by any evidence to
the contrary, and I have no reason not to accept same. The
probabilities
that this was the motive of the second respondent not
to release the plaintiff, favours the plaintiff. No other grounds for
detaining
the plaintiff had been tendered by or on behalf of the
defendants, and the second defendant knew by then that the plaintiff
denied
any involvement in the relevant crimes investigated by the
second defendant and that he was not in possession of a firearm.
24.3 On page 17 of the
record of the bail application, the following is put by the
prosecutor to the plaintiff,
“
Do you know the police,
why Mashaba took the police to your house? --- I am not well aware
why he brought them to my house.
Let me tell you why he brought
them to your house. Because the police had information that accused 2
was involved in this crime
and when they questioned him, and this
will be the evidence, he admitted everything and he even told us who
is involved in this
crime. He implicated himself and this was made to
a commissioned officer it is not a non-commissioned officer. He told
the police
that you were involved that Gideon was involved, the
person that was shot, and that he will assist the police to take them
to your
place and that you would actually tell the police where
Gideon is and you would also tell the police where the firearm is?
”
On page 19, the
prosecutor confronted the plaintiff with the following:-
“
You see sir, that is now
where the interesting part comes into because on the scene when they
confronted you with Mashaba’s
evidence, that is when you also
started admitting to the crime? --- I have never admitted to any
crimes.
”
“
There are sworn statements
in the dockets I can even mention the names. Booysen will testify
that there were commissioned officers,
that you actually said that
you were involved in this robbery and you fully knew that Surprise is
dead, you admitted that sir?
”
“
You see sir, when these
admissions were made there were commissioned officers – it was
a group of people that came to fetch
you that night – it was
commissioned officers it was not non-commissioned officers. These
people, they will all testify that
you made those admissions.
”
It is common cause that
the police, and more particularly the second defendant, had no such
evidence at their disposal when the
bail application was heard. The
prosecutor could only have received such (false) information from the
second defendant. There is
no suggestion that the prosecutor received
such information from any other person but the second defendant. Not
surprisingly, no
such evidence, except the second defendant’s
hear-say version, was tendered either at the bail application or in
this trial.
The aforesaid statements were clearly made to the
prosecutor by the second defendant and by the prosecutor to the
plaintiff to
persuade the magistrate not to release the plaintiff on
bail.
24.4 In his evidence
led at the bail application the second defendant deliberately created
the impression that the plaintiff assisted
Gideon to abscond from
hospital. He testified thus:
“
Do you have reason to
believe that accused – in particular accused 1 – might be
involved in them moving Gideon from
hospital? --- Yes, I have reason
to believe that.
Why do you say that captain? ---
Because he was using the vehicle as he confess to me – he was
using the vehicle the previous
night when he visited Gideon, and
according to Bridget he only received the vehicle back the next day
at 08:00 after Gideon was
removed from hospital.
So as I understand it correctly.
The person that later died, Surprise, he was at police custody, and
incidentally in that same ward,
or in the same hospital Gideon was
also admitted unbeknown to the police? --- That is right sir.
Okay. Did this act of removing,
or assisting Gideon to leave the hospital; did that frustrate your
investigations? --- Yes.
Is he also a suspect in your
case? --- That is right your worship.
All right. And that is why there
is also the charge of defeating the ends of justice? --- That is
right.
Now do you have reason to believe
that the accused once if they get bail would frustrate your
investigations further? --- Yes your
worship, because already helped
the – according to me they already helped Mr Gideon Manzini to
get away from hospital, and
get away from the police.
”
The defendants at no
time whatsoever attempted to corroborate this bold allegation that,
according to Bridget, the plaintiff had
the latter’s vehicle in
his possession at the time when Gideon left the hospital. In fact, it
was not disputed in the bail
application that the plaintiff was at
work at the time Gideon left the hospital. Once again, it is clear
that the second defendant
tendered this false evidence in an attempt
to persuade the magistrate not to release the plaintiff on bail.
24.5 It would further
appear that the second defendant did not hesitate to lie under oath
in his testimony tendered in the bail
application. On page 44 of that
record the plaintiff is recorded to have testified as follows:-
“
Correct. So how was accused 1
arrested? --- He was pointed out, according to the information he was
pointed out by accused 2, and
the police officer was taken to his
house by accused 2.
Why did accused 2 – according
to the statements in your docket – why did accused 2 point out
accused 1? --- Because
he said that accused 1 was also involved, and
he can show where Gideon and the firearms were.”
On page 54 it is
recorded that he testified as follows under cross-examination:
“
Ja.. Now let us recap now
again. What have you got against accused 1 that links him to the
crime except, except the so called testimony
or evidence of accused
2; which is inadmissible, you know that? --- That information from
the informer and the handler from the
the informer, the state’s
and …(interjection).
No. The informer informed on
accused 2? --- That is right ja.
Ja, so you have got nothing
regarding an informer against accused 1? --- No, the informer
mentioned the name of accused 1 also and
Gideon, and …(not
completed).
Sir, you are altering your
testimony now. This is the first time you or the prosecutor says the
informer informed on accused 1.
This is the first time? --- No, the
informer informed about accused 1, 2, Surprise and Gideon.
Would you agree it is the first
time you are telling the court this now? --- Yes.
Why. Why was it not put to
accused 1 that the informer informed on him, indicated him or
implicating him, and why did you not testify
it when you were giving
your evidence-in-chief? --- I do not know.
I tell you what, because you are
altering your testimony now to suit your case? --- No, that is not
for it.
I put it to you that is what
happening now? --- No.
When I put to you, you only got
the informer’s information against accused 2, and accused 2
what he said to the police, which
is inadmissible. Now all of a
sudden the informer informed on accused 1? --- No, the informer
informed about all four. That is
Surprise, Gideon, accused 1 and
accused 2 here.
”
In the absence of an
explanation by the second defendant for his aforesaid conduct, one is
driven to the conclusion that he deliberately
adjusted his evidence
to prevent the release of the plaintiff on bail.
[25] For these reasons
I conclude that the second defendant intentionally or at least
negligently tendered false evidence during
the plaintiff’s bail
application for purposes of preventing the plaintiff’s release
on bail, whilst knowing that the
magistrate would rely on such
evidence for purposes of considering bail. I further conclude that
the plaintiff has successfully
proved on a balance of probabilities
that such unlawful conduct led to or contributed to the refusal of
the plaintiff’s application
for bail and his further detention
until the date of his release from custody.
[26] Although Mr Botha
submitted that the circumstances of this matter justify a cost order
in favour of the plaintiff should I
find in his favour on the merits,
I do not think that there are sufficient reasons for not following
the normal route of ordering
that the costs should follow the final
result.
[27] Therefore the
following declaratory order issues:
THE FIRST DEFENDANT
IS LIABLE TO COMPENSATE THE PLAINTIFF FOR ANY DAMAGES HE MAY PROVE
TO HAVE SUFFERED AS A RESULT OF HIS UNLAWFUL
ARREST ON 15 MAY 2007
AND THE UNLAWFUL ASSAULT PERPETRATED ON HIM BY MEMBERS OF SAPS ON 15
MAY 2007.
THE FIRST AND
SECOND DEFENDANTS ARE JOINTLY AND SEVERALLY, THE ONE PAYING THE
OTHER TO BE ABSOLVED, LIABLE TO COMPENSATE THE PLAINTIFF
FOR ANY
DAMAGES HE MAY PROVE TO HAVE SUFFERED AS A RESULT OF HIS UNLAWFUL
DETENTION FOR THE PERIOD 15 MAY 2007 TILL 24 OCTOBER
2007.
THE COSTS OF THE
ADJUDICATION OF THE MERITS WILL BE COSTS IN THE CAUSE.
_________________
HJ LACOCK
JUDGE
For
the Plaintiff:
Adv. Botha SC oio Johan van Zyl Attorneys,
Pretoria
For
the 1
st
and 2
nd
Defendants:
Adv. Van Niewenhuizen SC oio The State
Attorney -