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[2011] ZAKZPHC 42
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Pillay v Minister of Police and Others (5644/2011) [2011] ZAKZPHC 42 (30 September 2011)
REPORTABLE
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
NO: 5644/2011
In
the matter between:
PERUMAL
PILLAY Applicant
And
MINISTER
OF POLICE First Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS: KWAZULU-NATAL Second Respondent
STATION
COMMANDER: MARGATE POLICE STATION
Third
Respondent
WARRANT
OFFICER J. KOEGELENBERG
Fourth
Respondent
J.
BESTER N.O.
Fifth
Respondent
JUDGMENT
Delivered
on: 30 September 2011
Z
F NKOSI AJ INTRODUCTION
[1]
This is
an
application for an urgent interdict
de
libera homine exhibendo.
On
17 June 2011, a rule
nisi
was
issued calling upon the respondents to show cause, on 20 June 2011,
why the applicant's detention should not be declared unlawful
and why
the applicant should not be released from custody forthwith. The
application was opposed by the first, third, and fourth
respondents.
The second and fifth respondents chose to abide the court's decision.
[2]
On 20 June 2011 I heard oral argument and, due to the urgency of the
matter, I ordered the immediate release of the applicant
from
custody. I now provide the reasons for this decision.
FACTUAL
BACKGROUND
[3]
On 17 June 2010 the applicant was arrested at his home by the fourth
respondent pursuant to a warrant of arrest. The applicant
was
subsequently charged with three counts of fraud. He was, however,
never given a copy of the warrant of arrest, which formed
the basis
for his arrest and detention, despite having requested it.
[4]
Thereafter, on 21 June 2010, the applicant appeared before the
Magistrate's Court, Port Shepstone, and was remanded into custody
pending the bail hearing on 30 June 2010. On that day the Magistrate
hearing the bail application refused to consider the lawfulness
of
the applicant's arrest and instead stated that he was only interested
in considering the issue of bail. The Magistrate then
postponed the
bai! application to 9 July 2010 on which date the applicant was
refused bail.
[5]
In a subsequent application to the Regional Court, it was found by
the court that the applicant's initial detention was unlawful
due to
the failure by the fourth respondent to provide him with a copy of
the warrant of arrest after he had requested it. Nevertheless,
the
fifth respondent, who presided over that court, concluded that the
applicant's detention became lawful upon being remanded
into custody
on 21 June 2010. The applicant then sought his immediate release from
custody. When the matter came before me, I assumed
jurisdiction and
ruled that the Regional Magistrate had no jurisdiction to decide the
application.
ISSUE
[6]
It is common cause that the arrest did not comply with procedural
requirements and that the initial detention was therefore
unlawful.
The only remaining issue is whether the orders for the further
detention of the applicant, which wl/ere authorised by
the Regional
Magistrate before whom he subsequently appeared, legally validated
the otherwise unlawful detention.
EVALUATION
[7]
Arrest is fully regulated by legislation.
Section 39(2)
of the
Criminal Procedure Act 51 of 1977
provides for the procedural
requirements upon an arrest of a person pursuant to a warrant. It
reads as follows:
The
person effecting an arrest shall at the time of effecting the arrest
or immediately after effecting the arrest, inform the arrested
person
of the cause of the arrest or, in the case of an arrest effected by
virtue of a warrant, upon demand of the person arrested
hand him a
copy of the warrant.'
In
this context,
'immediately'
means
'as
soon
as practically possible'
and
any longer delay caused by the inability of the arresting officer to
comply with the arrested person's request will not satisfy
the
requirements
[Minister
van Veiiigheid en Sekuriteit v Rautenbach
1996
(1) SACR 720
(A) 731G - H].
[8]
The legal effect of the compliance with the aforementioned precept
is contained in sub-section 3 which states:
'The
effect of an arrest shall be that the person arrested shall be in
lawful custody and that he shall be detained in custody until
he is
lawfully discharged or released from custody.'
It
goes without saying that non-compliance with the aforementioned
precept, despite adequate opportunity to do so, will render an
arrest
and subsequent detention in custody unlawful.
[9]
An arrest still has to be justifiable according to the demands of the
Bill of Rights as part of the Constitution of the Republic
of South
Africa, 1996. An arrest seriously infringes upon an arrestee's right
to his or her freedom, dignity, and privacy enshrined
in Chapter 2 of
the Constitution. Consequently, such an infringement should occur
only within the confines of statutory prescripts
through which such
an infringement is justified.
[10]
I now turn to deal with the merits of the application. Counsel for
the respondents, Mr
Naidoo,
conceded
that the arrest of the applicant was unlawful, but he proposed that
once the applicant appeared in court and his further
detention was
authorised by the court, the detention became lawful
[Isaac
v Minister van Wet en Orde
1996
(1) SACR 314
(A)]. In his view, the applicant's right to challenge
the unlawfulness of his arrest and detention lapsed upon his first
appearance
in court, at which stage, he submitted, the detention was
validated. The argument is rather specious.
[11]
in
Isaac
it was
held that the fact that a person's arrest is unlawful does not mean
that his or her further detention pursuant to an order
made in terms
of
section 50(1)
of the
Criminal Procedure Act would
also be unlawful
[Isaac,
supra,
at
321 i - 322a]. However, the court's reasoning was based on the
following interpretation of the section:
'Die
funksie van hierdie bepaling is oorweeg in
Minister
of Law and Order v Kader (supra).
Dit
is tweerlei, hoewel daar 'n mate van oorvleueling is. Eerstens vereis
die artikel dat 'n gearresteerde person binne 'n kort
tydperk voor
die hot gebring word. Hierdeur word heimlike en onreelmatige
inhegtenisnemings en aanhoudings ontmoedig. Die gearres-teerde
persoon word 'n geleentheid gee om in die openbaar die wyse en
omstandighede van sy inhegtenisneming te bevraagteken, en om aansoek
te doen om op borg of waarskuwing vrygelaat te word
supra
49F-G).
Hoe die hof in so 'n geval sal reageer sal natuurlik afhang van die
aard van die gearresteerde se versoek of klagte.'
[12]
The
ratio
of this
finding is that an arrested person is entitled to question in public
the lawfulness of his arrest. This was done by the
applicant,
according to his founding affidavit, and the magistrate rebuffed him
by stating that he was only interested in considering
the issue of
bail. It appears, therefore, that the information about the
applicant's unlawful arrest and detention was brought
to the
attention of the magistrate who decided to ignore it. The approach
taken by the magistrate is misdirected and cannot be
countenanced. In
my view, the fact that a court has authorised further detention does
not change the unlawfulness of a detention.
A court ordering further
detention well aware that the arrestee was unlawfully arrested and
detained fails in its duty to protect
its citizens against an
infringement of their constitutional rights by those exercising power
on behalf of the state.
[13]
Section 39(2) of the Bill of Rights provides that when interpreting
any legislation and when developing common law or customary
law,
every
court
must promote the spirit, purport and objects of the Bill of Rights.
Section 12(1)(a) of the Bill of Rights provides that everyone
has the
right to freedom and security of person, which includes the right not
to be deprived of freedom arbitrarily and without
just cause.
[14]
In S
v
Coetzee and Others
[1997] ZACC 2
;
1997
(1) SACR 379
(CC) at para 159, O'Regan J aptly stated as follows;
They
raise two different aspects of freedom: the first is concerned
particularly with the reasons for which the state may deprive
someone
of freedom; and the second is concerned with the manner whereby a
person is deprived of freedom ... our Constitution recognises
that
both aspects are important in a democracy: the state may not deprive
its citizens of liberty for reasons that are not acceptable,
nor,
when it deprives citizens of freedom for acceptable reasons, may it
do so in a manner which is procedurally unfair.'
[15]
Section 35(1 )(e) of the Bill of Rights reads:
'Everyone
who is arrested for allegedly committing an offence has the right at
the first court appearance after being arrested,
to be charged or to
be informed of the reason for the detention to continue, or to be
released'
Section
50(6)(a)
of the
Criminal Procedure Act contains
similar provisions.
Upon his first court appearance, the applicant was neither served
with an indictment nor is there any evidence
that the court properly
informed him of the charge(s) for which he had to be further
detained. The undisputed allegation made by
the applicant is that the
arresting officer told him he was being arrested under a warrant for
a crime allegedly committed on 12
February 2010. No such warrant was
ever produced. The only warrant, which was produced several months
later, pertained to a crime
allegedly committed on 15 March 2010.
[16]
Section 35(2)(d)
of the Bill of Rights reads:
'Everyone
who is detained, including every sentenced prisoner, has the right to
challenge the lawfulness of the detention in person
before a court
and, if the detention is unlawful, to be released'
It
is clear from this provision that the accused's right to challenge
the unlawfulness 0i
:
his arrest and detention does not lapse upon his first appearance in
court.
[17]
The applicant raised the issue of the lawfulness of his detention at
the first court appearance, through a lawyer, as he was
entitled to
do so. The court before which he appeared brushed it aside. In my
view, the challenge obliged the court, in administering
equal justice
to all, to conduct a prompt but short inquiry to verify the
allegation and to include such information into the factual
matrix
when making a decision as to whether the applicant should be detained
further. This apparently did not happen. That did
not require a full
contested hearing. Had the court conducted a short inquiry, it would
have been better informed about the unlawfulness
of the initial
detention and would have considered the release of the applicant on
his own recognisance pending trial instead of
considering bail.
[18]
From the aforegoing, it is my view that the encroachment on the
applicant's physical freedom was not carried out in a procedurally
fair manner and was unlawful. The mere fact that a number of
magistrates issued orders remanding the applicant into custody is
not
sufficient to establish that the detention was not procedurally
unfair.
[19]
In the result, in order to confirm the order I made earlier for the
immediate release of the applicant, I make the following
order:
1.
The rule
nisi
issued
on 17 June 2011 be and is hereby confirmed.
2
Costs of suit against the first, third, and fourth Respondents,
jointly and severally, the one paying the others to be absolved.
Z
P NKOSI AJ