Liebenberg v Minister of Safety and Security and Another (18352/07) [2009] ZAGPPHC 88 (18 June 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 88
|

|

Liebenberg v Minister of Safety and Security and Another (18352/07) [2009] ZAGPPHC 88 (18 June 2009)

REPORTABLE
HANDED
DOWN: 18 JUNE 2009
/bh/sg
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE NO:
18352/07
IN
THE MATTER BETWEEN:
W
J LIEBENBERG APPLICANT
AND
MINISTER
OF SAFETY
AND
SECURITY FIRST RESPONDENT
INSPECTOR
FUCHS SECOND RESPONDENT
JUDGMENT
LEGODI,
J
INTRODUCTION
1. In this matter, the
plaintiff, Mr W S Liebenberg is claiming damages against the two
defendants, the Minister of Safety and Security
and Inspector Fuchs.
2. The first defendant is
sued as an employer of the second defendant who is alleged to have
acted at all material times hereto
within the course and scope of his
employment with the first defendant.
3. The claim against the
defendants arises from two incidents of arrest of the plaintiff
without a warrant on 14 January 2006.
The plaintiff alleges that the
arrests were unlawful. In his replica, the plaintiff firstly avers
that the police in arresting
him without warrant, did not have
reasonable suspicion that he committed a schedule 1 offence.
4. The plaintiff in a
further alternative averment, particularly with specific reference to
Inspector Jacobs, states that there
was a duty on Inspector Jacobs to
consider the following facts before arresting the plaintiff:
4.1 The plaintiff is a
South African citizen
4.2 The plaintiff’s
identity number is 6112175040088.
4.3 The plaintiff has no
firearms in his possession or have a firearm licence.
4.4 The plaintiff is
residing at the house stated in paragraph 1 of the particulars of
claim, since 2005 and is the registered owner
of the property since
2006.
4.5 The plaintiff is
permanently employed with Lohrnmon Platinum, Mooinooi since 1999 as a
rock engineer.
4.6 The plaintiff is
married since 1985 with his present wife residing at the
aforementioned address.
4.7 The plaintiff has two
children who at the time of the arrest were fourteen and seventeen
years old respectively.
4.8 The plaintiff has no
criminal record.
4.9 The plaintiff does
not represent a danger to society.
4.10 The plaintiff was
and is willing to stand any trial.
4.11 The plaintiff will
not harm himself and or is not in danger of being harmed by others.
4.12 The plaintiff is
able and keen to disprove the allegations made against him which was
already indicated to the inspector Jacobs
during the first arrest.
4.13 The plaintiff is
inter
alia
a
member of SANIRE (South African Institution of Rock Engineers),
Committee member of the Mooinooi Golf Club and a member of the
Old
Apostolic Congregation.
5. The plaintiff then in
his replica avers that having regard to the aforementioned facts, a
reasonable officer in the position
of inspector Jacobs would not have
arrested the plaintiff, but would have considered less invasive
action to ensure that the plaintiff
will stand his trial. He then
concluded that the arrest of the plaintiff by inspector Jacobs is
unconstitutional and unlawful.
6. Just before the start
of the hearing of evidence, parties handed in a pre-trial minutes
dated 14 May 2009. In it, the following
admissions were made in the
form of questions and answers:
6.1 The plaintiff’s
residential address;
6.2 That the plaintiff
was arrested during the evening of 13/14 May 2006 at the plaintiff’s
residence.
6.3 That the arrest was
made without a warrant;
6.4 That the plaintiff
was detained on 14 January 2006 from 02h00 till 12h00.
6.5 That the plaintiff
was released due to the fact that the State Prosecutor refused to
prosecute the matter.
6.6 That the plaintiff
was thereafter arrested on 14 January 2006 at his residence.
6.7 That the aforesaid
arrest took place without a warrant of arrest.
6.8 That the plaintiff
was detained at the Brits SAP from 14:50 to 18:30.
6.9 That the plaintiff
was released for the second time without being charged.
7. Just before evidence
was adduced, I was further informed that the defendants have conceded
that the second arrest was unlawful.
I was further informed that
based on the defendants’ admission and defence of justification
in terms of section 40 of the
Criminal Procedure Act, the defendants
have a duty to begin.
FACTS RAISED BY
PLEADINGS AND ADMISSIONS
8. From what have been
stated in the previous paragraphs, and subsequent evidence which was
adduced by the parties, the following
issues in my view, have been
raised:
Whether Inspector
Jacobs in arresting and subsequently detaining the plaintiff in the
early morning of 14 January 2006 had reasonable
suspicion that an
offence of attempted murder had been committed by the plaintiff? And
if so,
Whether Inspector
Jacobs had any discretion not to arrest and detain the plaintiff? And
if so;
Whether Inspector
Jacobs had properly exercised such discretion?
EVIDENCE ON BEHALF OF
THE DEFENDANTS
9. Only one witness
testified on behalf of the defendants. This was inspector Jacobs who
arrested the plaintiff. His evidence
was in a nutshell to the
following effect:
9.1 He has been a police
officer for a period of 18 years, seventeen of which he has been a
detective investigating cases.
9.2 During the weekend of
the 13
th
/14
th
January 2006 he was doing standby duties. He had to attend to all
newly reported cases during the night and in particular serious

cases.
9.3 After 24 hours in the
morning of 14 January 2006, he was informed by the charge office
at Brits Police station that there
was an attempted murder case which
has been reported.
9.4 He proceeded to the
office and a docket containing statements by three witnesses was also
handed over to him. Based on the
information contained in the
docket, he then made enquiries regarding ownership of a motor vehicle
of the alleged suspects.
9.5 The car in question
was described as a white Corsa bakkie with registration numbers
F95835NW from which shots were fired and
one of the shots hit one of
the witnesses. Having obtained the particulars of the registered
owner of the bakkie in question,
he then together with other members
of the police, including Inspector Fuchs, proceeded to the house of
the plaintiff.
9.6 At the home of the
plaintiff, the bakkie as described and with the same registration
numbers as contained in the docket was
found. The plaintiff was then
confronted with the allegations and in particular the plaintiff was
asked:
9.6.1 If he was the owner
of the bakkie in question and he confirmed that he was the owner.
9.6.2 If he was driving
the bakkie during the early hours of 14 January 2006 and he said the
last time he drove the bakkie was during
the day of 13 January 2006.
9.6.3 He was asked if he
was the only driver of the vehicle and he confirmed that he was the
only driver.
9.6.4 He was asked if he
was during the night of the 13
th
to the early hours of the 14
th
January 2006 at or near Cooken Bull Pub in the district of Brits and
he said he was not in Brits district.
10. Having had these
responses from the plaintiff, inspector Jacobs then walked to the
bakkie in question, which was parked under
a carport. He put his
hand on the bonnet and the engine was very hot. He then put it to
the plaintiff that if the last time he
had driven his car was during
the day of the 13
th
January 2006, the engine would not have been so hot.
11. The plaintiff then
made the following admissions to Inspector Jacobs:
11.1 That he did drive
the bakkie in question during the late hours of 13 January 2006 up to
the early hours of 14 January
2006.
11.2 When told that there
were witnesses who saw him at or near Cock Bull Pub/Bar Restaurant,
he confirmed that he was at the said
bar at the late hours of 13
January 2006 to the early hours of 14 January 2006.
11.3 He also confirmed
that he was accompanied by a certain Izet and that he was willing to
go and show the police where Izet was
residing in Rustenburg.
Inspector Jacobs then arrested the plaintiff. The plaintiff’s
house was searched for a firearm,
and nothing was found.
12. The police then
travelled to Rustenburg together with the plaintiff. In Rustenburg
Izet, was arrested. A search was conducted,
but nothing was found.
The police then drove back to the police station. Both the plaintiff
and his friend were detained in the
cells.
13. Inspector Jacobs then
went home to rest. As he was on standby for the weekend, roundabout
10:00 he returned to the police station.
He was then informed that
the control prosecutor had directed that the plaintiff and his friend
be released as there was no case
against them. Inspector Jacobs then
ordered Inspector Fuchs to release the plaintiff. This concluded the
evidence on behalf of
the defendants.
EVIDENCE ON BY THE
PLAINTIFF
14. The plaintiff was the
only witness that testified. He did not deny the bulk of the
evidence adduced by Inspector Jacobs insofar
as it related to the
plaintiff.
15. The plaintiff was
arrested at his home round about 13:05. From there, he was taken to
Rustenburg where his friend was also
arrested. On their return from
Rustenburg, he was taken to Brits police station. He was then placed
in a dark cell where there
were other inmates.
16. Immediately after he
was locked into the cell, which was closed with a big steel door, he
was robbed of his belongings like
cigarettes. He got so frightened
and he was worried that he might be raped. He stood the whole time
against the door to avoid
being raped.
17. In the early hours
round about 18:00, they were taken out to an open space, next to the
cell. Later that morning they were
taken back into the cell. At
round about 12:00 he was released apparently on the intervention of
his lawyer.
18. When he arrived at
his home, the first thing he wanted to do was to bath because he felt
so dirty. He was very hungry as he
never ate since he was arrested.
As he was preparing to eat, the police arrived again. That was round
about 14:00. They arrested
him, took him back to the police station,
locked him in again. He was then released round about 18:30 on 14
January 2006. This
in short, concluded the evidence by the
plaintiff.
APPLICABLE PRINCIPLES
AND LEGISLATION
19. In the light of the
issues raised herein, and submissions which were made by counsel on
behalf of the plaintiff, I find it necessary
to deal with all or most
of the methods of securing an attendance in court by an accused
person. I also find it necessary to deal
with guidelines and
principles regarding relationship between the prosecution and
investigators of crime.
SECTION 54
19.1 In terms of this
section, while the prosecution intends prosecuting an accused in
respect of any offence and the accused is
not in custody in respect
of that offence and no warrant has been or is to be issued for the
arrest of the accused for that offence,
the prosecutor may secure the
attendance, of the accused by drawing up the relevant charge and
handing it over to the clerk of
the court to issue summons containing
the charge and the information handed to him by the prosecutor, and
specifying the place,
date and time for the appearance of the accused
in court on such charge, and deliver such summons to a person
empowered to serve
a summons in criminal proceedings.
SECTION 56
19.2 Section 56 deals
with written notice as a method of securing attendance of the accused
in the magistrate’s court. Sub Section
1 thereof provides
that if an accused is alleged to have committed an offence and a
peace officer on reasonable grounds believes
that a magistrate’s
court, on convicting such accused of that offence, will not impose a
fine exceeding the amount determined
by notice in the Gazette, such
peace office may whether or not the accused is in custody, hand to
the accused a written notice
calling on the accused to appear at a
place and on a date and a time specified in the written notice to
answer to a charge of having
committed the offence in question.
SECTION 57
19.3 This section deals
with payment of admission of guilt on summons issued in terms of
section 54 and written notice in terms
of section 56, in which event
it becomes not necessary for such an accused to appear in court.
SECTION 57A
19.4 This section deals
with admission of guilt and payment of fine after appearing in court.
Subsection 1 thereof provides that
if an accused who is alleged to
have committed an offence has appeared in court and is, in custody
awaiting trial on that charge
and
not on another more serious
charge, or is released on bail under section 59 or 60 or is released
on warning under section 72, the prosecutor may before the
accused
has entered a plea and if he or she on reasonable grounds believes
that a magistrate in convicting such accused of that
offence, will
not impose a fine exceeding the amount determined by the Minister
from time to time by notice in the Gazette, hand
to the accused a
written notice or cause such notice to be delivered to the accused by
a peace officer, containing an endorsement
in terms of section 57
that the accused may admit his or her guilt in respect of the offence
in question and that he or she may
pay a stipulated fine in respect
thereof without appearing in court again. (My own emphasis)
SECTION 59
19.5 This section deals
with bail before first appearance of an accused in the lower court.
Subsection (1)(a) provides that an
accused who is in custody in
respect of any offence, other than an offence referred to in Part II
or Part III of Schedule 2 may,
before his or her first appearance in
a lower court, be released on bail in respect of such offence by any
police officer of or
above the rank of a non-commissioned officer, in
consultation with the police officer charged with the investigation,
if the accused
deposits at the police station the sum of the money
determined by such police official.
SECTION 59A
19.6 This section deals
with the National Director of Public Prosecutions authorising the
release of an accused person on bail before
appearance in court. It
provides that an attorney-general or a prosecutor authorised thereto
in writing by attorney-general concerned,
may, in respect of the
offences referred to in Schedule 7 and in consultation with the
police official charged with the investigation,
authorise the release
of an accused on bail. The effect of bail granted in terms of this
section is that the person who is in
custody shall be released from
custody.
SECTION 60
19.7 Section 60 deals
with an application for bail by an accused person in court.
Subsection (1)(a) provides that an accused who
is in custody in
respect of an offence shall, subject to the provisions of subsection
50(6) be entitled to be released on bail
at any stage preceding his
or her conviction in respect of such offence, if the court is
satisfied that the interests of justice
so permit. Subsection (6) of
section 50 provides as follows:
(a) At his or her
first appearance in court a person contemplated in subsection (1)(a)
who-
(i) was arrested for
allegedly committing an offence shall, subject to this subsection and
section 60-
(aa) be informed by
the court of the reason for his or her further detention; or
(bb) be charged and be
entitled to apply to be released on bail and if the accused is not so
charged or inform of the reason for
his or her further detention, he
or she shall be released; or
(ii) was not arrested
in respect of an offence, shall be entitled to adjudication upon the
cause for his or her arrest.
(b) An arrested person
contemplated in paragraph (a)(i) is not entitled to be brought before
court outside ordinary court hours.
SECTION 50
19.8 This section deals
with procedure after arrest. Subsection (1)(a) thereof provides that
any person who is arrested with or
without a warrant for allegedly
committing an offence, or for any other reasons, shall as soon as
possible be brought to a police
station or in the case of an arrest
by a warrant, to any other place which is expressly mentioned in the
warrant.
19.9 Paragraph (b) of
subsection (1) provides that a person who is in detention as
contemplated in paragraph (a) shall, as soon
as reasonably possible,
be informed of his or her right to institute bail proceedings.
Paragraph (c) provides that subject to
paragraph (d), if such an
arrested person is not released by reason that –
(i) no charge is to be
brought against him or her, or
(ii) bail is not granted
to him or her in terms of section 59 or 59A, he or she shall be
brought before a lower court as soon as
reasonably possible, but not
later than 48 hours after the arrest.
ROLE OF PROSECUTION
AND THE POLICE
19.10 Department of
police as it is now called, is an independent government department
under the ultimate control of the relevant
minister of cabinet. The
structure and functions of the department are governed by the
South
African Police Service Act 68 of 1995
and section 205 to 208 of the
Constitution. (See Commentary on the Criminal Procedure Act page
1-4,
S v
Henna & Another
2006 (2) SACR 33
(SE) 40F.)
19.11 One of the
functions of the police is to investigate any crime or alleged crime
and to prevent crime. In terms of section
205(3) of the Constitution
and also as read with the preamble to Act 68 of 1995, police officers
also have the duty to ensure the
safety and security of all people in
the country. (See
Minister
of Safety and Security v Mahofe
2007
(2) SACR 92
SCA at paragraph 11 and K v Minister of Safety and
Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) at (18) and (19).)
19.12 As far as
prosecutions are concerned, the police do in practice, exercise a
discretion of their own and often refrain from
bringing trivial
matters and allegations, which are not adequately supported by
evidence, to the attention of the public prosecutor.
All
investigations completed by the police for purpose of a prosecution
must be submitted to the prosecuting authorities as the
prosecutors
do not have the final say on whether a prosecution should be
instituted. (My own emphasis). This separation between
officials
who investigate crime and those who decide to prosecute and actually
do prosecute crime is an important one. It provides
objectivity and
provides criminal justice system with a process in terms of which the
results of a police investigation can to
some extent be evaluated
independently before grave steps of instituting a prosecution is
taken. (See Commentary on the Criminal
Procedure Act at 1 44.)
INFORMAL CO-OPERATION
BETWEEN PROSECUTION AND POLICE
19.13 In practice, there
ought to be some sort of co-operation between the police and
prosecutors in the investigation of a case
and its preparation for
trial. In terms of paragraph 8 of the Prosecution Policy, issued by
the NDPP in terms of section 12(1)(a)
of act 32 of 1998, the
relationship between prosecutors and police officials
should
be one of efficient and close-cooperation, with mutual respect for
the distinct functions and operational independence of
each
profession
.
(My own emphasis.)
19.14
The
initial investigation is conducted by the police. They do so upon
their own, including or as a result of a complaint received
from the
public
.
Or they may do so in consequence of instructions received from the
prosecuting authority. (See section 24(43)(c)(i) of
National
Prosecuting Authority Act 32 of 1998
. The police prepare a docket
for submission to the public Prosecutor who takes a decision matter
to prosecute or not. See again
Commentary on Criminal Procedure Act
at 1-44.) (My own emphasis)
19.15 The prosecutor, in
the exercise of his discretion to prosecute, examine the witnesses’
statements and documentary evidence
contained in the docket together
with such real evidence as might be available.
At
this stage
,
the prosecutor may also direct and control the investigation by
giving specific instructions to the investigating officer, that
is,
the police official charged with the investigation of the crime. The
prosecutor may, for example order for further statements
from
potential state witnesses or, he may direct for certain information
to be submitted or collected.
But
he himself does not in principle participate in the investigation of
cases
.
(See again page 1-42 of Commentary on the Criminal Procedure Act.)
(Own emphasis)
THE PROSECUTION AS
DOMINUS
LITIS
AND WITHDRAWING OF CHARGES IN TERMS OF SECTION 6 OF THE CRIMINAL
PROCEDURE ACT
19.16 Of relevance,
section 6(a) of the Criminal Procedure Act, provides that an attorney
general (National Director of Public Prosecutions),
or any person
conducting a prosecution at the instance of the state, or any body or
person conducting a prosecution under section
8,
may
before an accused pleads to a charge
,
withdraw that charge, in which event, the accused shall not be
entitled to a verdict of acquittal in respect of that charge.
(Own
emphasis)
19.17 Prosecution as
dominus
litis
means that the prosecution can do what is legally possible to get or
not to get criminal proceedings in motion for example, determining

the charges and the duty and venue of trial.
(S
v Khamela and Five Similar cases
2008 SACR 165
(C) at 22 and 35). A measure of control by the courts
over decisions then by the prosecution as
dominus
litis
remains essential.
THE DISCRETION TO
PROSECUTE
19.18 A prosecutor has a
duty to prosecute if there is a
prima
facie
case, unless there is compelling reason for a refusal to prosecute.
In this context,
prima
facie case
is said to mean, the allegations as supported by statements and real
and documentary evidence available to the prosecution, are
of such a
nature that if proved in a court of law by the prosecution on the
basis of admissible evidence, the court should convict,
that is, if
there are reasonable prospect of a successful prosecution. The
prosecution, does not have to ascertain whether there
is a defence,
but whether there is a reasonable and probable cause for prosecution.
(See
Beckenstrate
v Rollcher and Theunnissen
1955 (1) SA 129
(A) at 137,
S
v Luhota
2001 (2) SACR 703
(SCA) 707i and
Gellman
v Minister of Security and Safety
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W) at (33).)
SECTION 40
19.20 This section deals
with an arrest without a warrant. Section 40(1)(b) provides that a
peace officer may without a warrant
arrest any person whom he
reasonably suspects of having committed an offence referred to in
schedule 1, other than the offence
of escaping from lawful custody.
19.21 The question as to
whether the suspicion of the person effecting the arrest is
reasonable, must be applied objectively. The
circumstances giving
rise to the suspicion must be as would ordinarily move a reasonable
man to form the suspicion that the arrestee
has committed a Schedule
1 offence.
19.22 The word suspicion
is said to imply an absence of certainty or adequate proof. A
suspicion might be reasonable, even if there
is insufficient evidence
for a
prima
facie
case against an arrestee. For example, it is conceivable that a
reasonable suspicion can be formed where a person is seen at the

scene of a crime and gives a false alibi under interrogation or
refuse to answer any questions. (See
Duncan
v Minister of Law and Order
1984 (3) SA 460
(T).)
19.23 Police officers who
purport to act in terms of section 40(1)(b) should investigate
exculpating explanations offered by a suspect
before they can form a
reasonable suspicion for the purposes of a lawful arrest. (See
Louw
and Another v Minister of Safety and Security and Others
2006 (2) SACR 178
(T) 183j-184d).
19.24 In general, the
person affecting the arrest is also the person who must harbour the
reasonable suspicion. But where a police
official carries out the
physical part of an arrest on the command of another police official
under whom he serves, and who makes
the requisite notification to
him, it is actually the superior who carries out and the arrest and
who must have reasonable suspicion.
(See
Minister
of Justice v Ndala
1956
2 SA 777
(T) 780).
19.25 In
Ralekwa
v Minister of Safety and Security
2004 (1) SACR 131
(T) the Court correctly conducted its examination
into the lawfulness of an arrest against the backdrop of the
constitution. The
court held that section 40 does not provide a
protection to a police officer who did not form his own suspicion,
but relied on
the opinion of another person.
19.25.1 It is said, an
arrest without a warrant is a drastic means of initiating a
prosecution or securing the accused’s attendance
in court. In
the pre constitutional era it was accepted that there was no
rule of law that required that milder methods of
bringing a person to
court either by summons, written notice, indictment, arrest on
warrant, should be resorted to where these
methods would be as
effective as a warrantless arrest. (See
Tsotse
v Minister of Justice
1951 3 SA 10
(A) 17H).
19.26 However, it is said
that time has come to state
as
a matter of law
that, even if a crime which is listed in schedule 1 of Act 51 of 1977
has allegedly been committed, and even if the arresting officer

believes on reasonable grounds that such a crime has been committed,
this in itself does not justify an arrest forthwith. In each
case
falling within the ambit of section 40, the police are said
to
be obliged to consider whether less invasive to bring the suspect to
court are available
.
It is said that it is constitutionally unacceptable to resort to
warrantless arrest if
there
is no reasonable apprehension that the suspect will abscond, or fail
to appear in court if a warrant is first obtained
,
or a notice to appear in court is obtained.
19.27 It is said the
power
contained
in section 40 may be exercised only if there are reasonable grounds
to suspect that the suspect will abscond if any application
for a
warrant is first made
.
(My own emphasis). (See
Louw
v Minister of Safety and Security
2006 (2) SACR 178
(T) 186b, 187d, 187e and 187f.)
19.28 In contrast to
Louw’s
case
supra
,
it is said that the legislature having granted a peace officer the
right to make an arrest in the circumstances set out in section
40
has created a situation where due compliance with such section by a
peace officer is lawful and affords such a peace officer
protection
against an action for unlawful arrest. The court is said to have no
right to impose further conditions on such persons.
To do so, is
said, would open a Pandora’s box where the courts would be
called upon in cases of this type to have to enquire
into what is
reasonable in a variety of circumstances and further where peace
officers would be called upon to more value judgments
everytime they
effect arrest in terms of section 40. These judgments which they
would have to make would later have to be considered
and tested by
judicial officers attempting to place themselves in the shoes of the
arresting officer. (See
Charles
v Minister of Safety and Security
2007 (2) SACR 137
(W) 144b d).
19.29 It requires no more
than an honest exercise of their duties. If the police
bona
fide
fear that a suspect will evade justice, then an arrest is obviously
the correct option. But, by the same token, it is said this
test
makes an arrest
ultra
vires
when exercised against a suspect under circumstances where the
suspect is perfectly willing to come to court on warning, on notice

or summons. (See
Louw
supra
at 187g.)
19.30 Unnecessary
restrains on police officials, who have to take snap decisions, can
be detrimental to the administration of justice.
However, it is said
that it is equally true that fundamental rights must be protected and
accommodated. Where the two considerations
are evenly balanced, a
modern constitutional state requires that the scales must fall on the
side of individual liberty. (See
Minister
of Safety and Security v Glisson
2007 (1) SACR 131
(E) 134g).
19.31 The following
guidelines are said to be particularly helpful to the police officers
about to make an arrest without a warrant:
19.31.1 that after the
policeman has determined that there are reasonable grounds for
suspecting the commission of a schedule 1
offence, he must exercise
his discretion to determine whether there are circumstances which
militate in favour of effecting a warrantless
arrest. Usually, the
risk of the suspect absconding or committing further crimes if the
policeman delays in obtaining a warrant,
would initiate in favour of
a warrantless arrest.
19.31.2 a policeman
should always consider whether the accused’s attendance can be
procured through a summons, as this is
the preferable method of
summonsing a suspect’s attendance at trial. If the policeman
concludes that there is a risk of
Flight if a summons is served on
the suspect, the policeman should consider whether the ends of
justice may be defeated if he approaches
a magistrate or justice of
the peace to obtain a warrant.
19.31.3 that in
determining whether or not to effect an arrest, the arresting officer
should carefully consider his or her standing
orders, that may in
itself be an indication that the discretion was not properly
exercised and that the warrantless arrest was
unlawful.
19.32 That the factors
under paragraphs 19.30.1 to 19.30.3 above should be seen as
guidelines only bearing in mind that what is
reasonable will be
assessed against the background of the particular circumstances of
each case. (See
Gellman
v Minister of Safety and Security
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W) 90 94).
19.33 Section 36 of the
Constitution deals with limitations in the Bill of Rights. It
provides that the rights in the Bill of Rights
may be limited only in
terms of law of general application to the extent that the limitation
is reasonable and justifiable in a
open and democratic society based
on human dignity, equality and freedom, taking into account all
relevant factors such as the
native of the right, the importance of
the purpose of the limitation, the nature and extent of the
limitation, the relationship
between the limitation and its purpose
and the less restrictive means to achieve the purpose.
FURTHER ISSUES RAISED
20. After judgment was
reserved in this matter, I requested the parties to file further
heads of argument as follows:
“
(1) Whether
Inspector Jacobs having arrested the plaintiff in the early hours of
Saturday 14 January 2006 had any discretion
to release the
plaintiff? If so,
(2) In terms of which
law or provision of the Criminal Procedure Act, was Inspector Jacobs
entitled to exercise such a discretion?
Parties are requested to
deal with relevant provisions in the Criminal Procedure Act dealing
with securing attendance of an accused
person in court and in
particular sections 50, 54, 57, 59, 59A and 60 of Act 51 of 1977.
(3) Was the public
prosecutor entitled to order the release of the plaintiff or
withdrawing the charges at such an early stage of
the police
investigation and without having consulted with the arresting officer
and or before the plaintiff was actually charged?
If the answer is
in the affirmative,
(4) Did the
prosecutor’s conduct not amount to an interference with the
police investigation? And If not,
(5) In terms of which
authority or a provision of the law did the prosecutor act in
withdrawing the charges at such an early stage
and without consulting
with the arresting officer?
(6) If the public
prosecutor could be found to have been wrong on the prima facie
evidence against the plaintiff, and that he or
she interfered with
the police investigation and that he or she had no authority to
withdraw the charges and order the release
of the plaintiff, on what
basis can it be said that the second arrest and subsequent detention
was unlawful?
(7) If it could be
found that the public prosecutor acted improperly and unlawfully and
that the second arrest was not unlawful
would this court be bound by
the concession made by the defendants to the effect that the second
arrest was unlawful?
”
DISCUSSIONS,
SUBMISSIONS AND FINDINGS
21. I now turn to deal
with the issues raised in paragraphs 8 and 20 of this judgment. I
find it necessary to deal first with the
information that led the
police to the home and arrest of the plaintiff.
WHETHER INSPECTOR
JACOBS HAD REASONABLY SUSPECTED THE PLAITNIFF AS HAVING COMMITTED AN
OFFENCE REFERRED TO IN SCHEDULE 1?
22. An offence of
attempted murder is an offence falling under schedule 1. In his
written heads of argument which was submitted
to the court on
conclusion of evidence, counsel for the plaintiff challenges
Inspector Jacobs reasonableness of his suspicion and
lawfulness of
the arrest as follows:
“
2.4 It is
submitted that the defendants did not proof that Inspector Jacobs had
a reasonable suspicion that the plaintiff had committed
an offence of
attempted murder
.”
22.1 In paragraphs 19.21
to 19.24 of this judgment I dealt with how reasonable suspicion ought
to be interpreted. The plaintiff
was arrested without a warrant
based on the following set of facts:
22.1.1 On the evening of
13 January 2006 three witnesses made written statements to the
police.
22.1.2 In their
statements, they confirmed a shooting incident where one of them was
shot and their vehicle damaged by bullets.
22.1.3 A description of a
white Corsa bakkie and registration numbers thereof were given to the
police.
22.1.4 The vehicle’s
particulars were circulated and it was discovered that it belonged to
the plaintiff at a given address.
22.1.5 The police in the
early hours of 14 January 2006 proceeded to the home of the
plaintiff.
22.1.6 At the home of the
plaintiff the white Corsa bakkie as described by the witnesses and
with the same registration numbers
as supplied by the witnesses to
the police was found at the home of the plaintiff.
22.1.7 The plaintiff
confirmed that it was his bakkie and that no other person was using
or driving the said bakkie. He was the
only person using the bakkie.
22.1.8 He denied any
allegation that, the night in question he was anywhere near the place
where the alleged offences were alleged
to have been committed.
22.1.9 That the last time
he drove the vehicle was during the day of 13 January 2006.
22.1.10 Having told the
police as stated in 22.1.9 above, Inspector Jacobs walked towards the
bakkie, put his hand on the engine
and felt the engine. The engine
was very hot.
22.1.11 Inspector Jacobs
confronted the plaintiff and told him that if he had driven his
bakkie during the day on 13 January 2006,
the engine would
not have been so hot in the early hours of 14 January 2006.
22.1.12 The plaintiff
then admitted that he did drive the bakkie in the late hours of
13 January 2006 and early hours
of 14 January 2006.
22.1.13 The plaintiff
further admitted that he was at or near the spot where the shooting
incident was said to have taken place.
He, however, denied that he
was involved in the shooting.
22.2 Based on all these
factors mentioned in 22.1, 22.1.1 to 22.1.13, Inspector Jacobs formed
the suspicion that the plaintiff was
involved in the commission of
the offence and he then arrested him. I deal later with the issue of
arrest.
22.3 I understood counsel
for the plaintiff to have suggested that for two reasons, Inspector
Jacobs should not have relied on the
statements of the witnesses:
22.3.1 Firstly, that none
of the witnesses had indicated in their statements that they saw
shots been fired from the plaintiff’s
bakkie.
22.3.2 Secondly, that
none of the witnesses did indicate in their statements that they saw
a firearm or the plaintiff shooting.
22.4 In the statement A1,
which was handed in as exhibit B and in particular paragraph 2 and 3
thereof, it is stated as follows:
“
2.
After a few minutes I
saw the motor vehicle passing. I didn’t suspected that car.
After it had passed, I heard the big sound
like a firearm I then
realised that the car had shot me on my right leg because I was
feeling pains on right leg. I then saw many
gun shots on the right
back door of the motor vehicle.
3.
We then followed that
motor vehicle and managed to took the registration number. The
number was white bakkie Registration no FJS835NW
with two white male.
We followed the car until it parked at Cookenbull Pub and I was
transported to Britz Hospital because I was
bleeding on my right leg
due to gun shots. I went to the police to investigate the matter
because I didn’t gave them permission
to shoot me
.”
22.4.1 This is a
statement by the witness who was shot. What appears in paragraphs 2
and 3 of the statement was said to have meant
nothing connecting the
plaintiff to the commission of the crime. I understood counsel for
the plaintiff further to suggest that
the fact that registration
numbers of the plaintiff’s bakkie were given to the police, did
not mean that he was involved.
24.4.2 Very easy to make
this kind of a suggestion. However, this must be seen in the context
of what Inspector Jacobs objectively
understood to have been the
case. Firstly, he took into account the fact that the person who
took down the statement did not use
his or her first language. I do
not think that anyone can question this. The person who took the
statement is indicated as Lomake
Modibedi, a black police official.
24.4.3 Secondly, it was
not the understanding of Inspector Jacobs that “the car shot
me” literally meant the car shooting.
Any other reasonable
person, placed in the position of Inspector Jacobs would have
understood to mean the occupants of the bakkie
as having shot at the
witness. This understanding should further be seen in the light of
statements A2 and A3 quoted in full in
the preceding paragraphs
31.1.5 and 32 of this judgment respectively.
24.4.4 I do not think
that what is stated in these statements could mean anything than to
referring to the occupants of the bakkie
as the people who fired
shots. Otherwise, what would have been the point for taking down the
registration number of the plaintiff’s
bakkie, if occupants
were not meant to have been the people responsible for the shooting.
24.4.5 To suggest that
all of these did not create a reasonable suspicion that the plaintiff
was involved in the shooting, would
in my view defeat one’s
sense of logic and common sense. Such reasonable suspicion in the
present case should also be seen
in the light of the conflicting
statements that were made to Inspector Jacobs as indicated in
paragraphs 22.1.8 and 22.1.9 above.
The plaintiff, despite the fact
that he took the witness stand, elected not to offer any explanation
as to why he had initially
lied to Inspector Jacobs. His exculpatory
explanation should therefore be seen in the light of these
conflicting versions.
24.4.6 Remember,
reasonable suspicion requires no more than moving a reasonable man to
form the suspicion that the arrestee has
committed a first schedule
offence. I am therefore satisfied that Inspector Jacobs correctly
formed the view that the plaintiff
was reasonably suspected of having
been involved in the commission of the offence. The next issue is:
WHETHER INSPECTOR
JACOBS HAD ANY DISCRETION NOT TO ARREST AFTER HAVING FOUND THAT
REASONABLE SUSPICION OF COMMISSION OF A SCHEDULE
1 OFFENCE EXISTED?
25. Section 40(1)(b)
entitles a police officer to arrest without a warrant any person
reasonably suspected of having committed a
schedule 1 offence. The
issue is whether such a police officer has any other election to
make, other than either to arrest without
a warrant or to apply for a
warrant seen in the light of the provisions of section 40.
25.1 The suggestions in
Louw’s
case and
Gellman’s
case
supra
,
were that release on warning, notice or summons would be within a
peace officer’s discretion under section 40(1)(b). This
was
also the contention by counsel on behalf of the plaintiff in the
instant case. I have very serious difficulties with this.
Earlier
in this judgment under paragraph 19.28 I referred to what was said in
Charles’
case
supra
.
25.2 I tend to agree with
the sentiments expressed in
Charles’
case
supra
.
But, I think one must take the sentiment a step further. Clear from
the provisions of section 50, 54, 56, 57, 59, 59A and 60
of the
Criminal Procedure Act, that the legislature was mindful in
minimising the impact of an arrest and detention. Whilst it
is said
that an arrest without a warrant in terms of section 40, is a drastic
means of initiating a prosecution or securing the
accused’s
attendance in court, it is not only an arrest without a warrant, but
any other arrest for that matter.
25.3 Arrest with or
without a warrant infringes one’s right to freedom of movement
contrary to the provisions of section 21(a)
of the Constitution.
However, the legality of such an infringement is justified in terms
of sections 40 and 39 of the Criminal
Procedure Act. This
justification in my view, should be read together with section 36 of
the Constitution.
25.4 The legislature
appears to make a distinction between minor offences, serious
offences and more serious offences. For example,
summons could be
issued in terms of section 54. I do not think that the issue of
summons under section 54 is meant for serious
offences where there is
sufficient evidence either to formulate a suspicion in terms of
section 40 or where there is a
prima
facie
case. Before I attempt to justify the thinking in this regard, in
practice or generally, police officials when they are uncertain
about
whether or not an offence has been disclosed or committed, they
submit a docket to the prosecutor for a decision. If the
prosecutor
was to find that there was a
prima
facie
case, he will then issue or cause summons to be issued in terms of
section 54. It seldom happens that in a clear cut case, would
a
prosecutor be requested for a decision. Similarly it does not happen
in practice that a person who is alleged to have committed
a more
serious offence, for example, murder or attempted murder and who is
found or located at the spot or immediately thereafter,
that instead
of arresting such a person either because he is well known person or
because he is a prominent figure or because his
place of residence is
known, he is not immediately arrested and brought to court. Instead,
he or she is told to wait for the summons
to be served on him after
issue in terms of section 54: It could not have been the intention
of the legislature. If this was
to happen it would bring the
administration of justice into a disrepute. Imagine a suspect in a
murder case or attempted murder
case who is not arrested at the scene
or immediately thereafter. He is told to go home and wait for the
summons: and only to appear
in court on summons after fourteen days.
This would be seen as mockery of justice by the ordinary members of
our society and it
would never have been intended by the legislature.
25.5 In terms of section
38 of the Criminal Procedure Act, methods of securing the attendance
of an accused in court for the purpose
of historical, shall be
arrest, summons, written notice and indictment in accordance with
relevant provisions of Act 51 of 1977.
25.6 Inasmuch as the
police are authorised in terms of paragraph 3 (3)(a) of Police
Standing Order (G) 341 to secure the attendance
in court of a person
by means of summons in terms of section 54, such a discretion should
be seen in the context of what is intended
by the legislature, for
example, sections 59 and 59A of the Criminal Procedure Act.
Similarly, it must be seen in the context
of section 56 and 57.
25.6.1 Section 56 deals
with a written warning by a police officer before appearance in
court. The provisions of section 56(1)
were referred to earlier in
paragraph 19.2 of this judgment. Clear, from the provisions of this
section that the legislature intended
such a release on warning to
apply to minor offences. For example, if a magistrate’s court
on convicting such a person would
not impose a fine exceeding
R2 500.00 which is the current amount determined by the Minister
in the Gazette.
25.6.2 Section 57 deals
with an admission of guilt and payment of fine without appearance in
court. The provisions of section 57(1)(a)
are stated in paragraph
19.3 of this judgment. The fine determined by the Minister is not
exceeding R5 000.00. For example,
traffic summons. Clear, that
section 57 is not meant for serious offences.
25.6.2.1 I find it
necessary to deal with the provisions of section 57(1) in context,
seen in the light of the fact that it imposes
a limitation on the
admission of guilt fine that can be imposed by the prosecutor, and
secondly seen in the light of the fact that
it makes reference to
summons issued in terms of section 54. It provides as follows –
“
57. Admission
of Guilt and payment of fine without appearance in court
(1) Where
–
(a) Summons is issued
against an accused under section 54 (in this section referred to as
summons) and the public prosecutor or
the clerk of the court
concerned on reasonable grounds believe that a magistrate’s
court, on convicting the accused of the
offence in question, will not
impose a fine exceeding the amount determined by the Minister from
time to time by notice in the
Gazette, and such public prosecutor or
clerk of the court endorses the summons to the effect that the
accused may admit his guilt
in respect of the offence in question and
that he may pay a fine stipulated on the summons in respect of such
offence without appearing
in court; or
(b) a written notice
under section 56 (in this section referred to as the written notice)
is handed to the accused and the endorsement
in terms of paragraph
(c) of subsection (1) of that section purports to have been made by a
peace officer
.”
25.6.2.2 Remember,
section 56 deals with warning to appear in court for the first time
as sanctioned by a police official. There
is no question that such a
warning is meant for minor offences. The issue of summons by the
police or at the instance of the police,
in terms of section 54, in
my view, should therefore be seen in the context of the police
restrictions in terms of section 56.
But, not only in terms of such
a restriction, but also the restriction to the prosecutor in terms of
sections 57 and 59A. The
police too, are also restricted in terms of
section 59. The question is, why would such restrictions not be
applicable to section
54 if it was intended by the legislative to
apply even to serious and or more serious offence? “
Any
offence
”
in section 54 should therefore be seen in context.
25.6.3 Section 59 deals
with what is commonly referred to as a police bail. It is bail which
is granted by the police to an arrested
person before his or her
first appearance in court. I have referred to the provisions of
section 59(1) in paragraph 19.5 of this
judgment. The fixing of bail
and release of an arrested person is prohibited in terms of section
59 for offences falling under
parts II and III of schedule 2.
Attempted murder is a part II schedule 2 offence under Act 51 of
1977. Secondly, attempted murder
carries a minimum sentence of five
years under part IV schedule 2 of Act 105 of 1998, the so called
Minimum Sentence Act.
It is therefore a serious offence.
25.6.4 The prohibition
under section 59 raises another issue. That is, whether it could
ever have been the intention of the legislature
to allow issuing of
summons under section 54 of the Criminal Procedure Act for attempted
murder, but prohibits a police bail in
terms of section 59(1) for
such an offence? The fixing of bail and release of an arrested
person can happen within a snap of time
and with less invasion of
one’s right to freedom of movement. It is on this basis that I
further find that summons under
section 54 or release on warning
under section 56, could not have been intended to apply to serious
offences in circumstances where
section 40 relating to schedule 1
offences apply or where there is a
prima
facie
case. This cannot be said to be a limitation not falling within the
provisions of section 36 of the Constitution.
25.6.5 Similarly, with
regard to section 59A the prosecutor is restricted to certain
offences in fixing bail before an appearance
in court. The
prosecutor is entitled and after consultation with the police
official in charge of the case, to fix bail, but only
in respect of
offences falling under schedule 7. These offences are, public
violence, culpable homicide, bestiality, assault,
involving the
infliction of grievous bodily harm, arson, housebreaking, malicious
damage to property, robbery other than robbery
with aggravating
circumstances if the amount involved in the offence does not exceed
R20 000.00 theft and any offence referred
to in section 264
(1)(a)(b) and (c), if the amount involved in the offence does not
exceed R20 000.00, any offence relating
to extortion, fraud,
forgery or uttering if the amount of value involved in the offence
does not exceed R20 000.00 and any
conspiracy, incitement or
attempt to commit any offence referred to in schedule 7. I deal
later in this judgment with the effect
of failure to consult with the
police at an early stage of the investigation insofar as it relates
to the release of the suspect
or withdrawal of the charges by a
public prosecutor.
25.6.6 Invasion of a
person’s right to liberty or freedom to movement should be
balanced against all necessary steps taken
by the legislature under
sections 50, 54, 56, 57, 57A, 59, 59A and 60. For as long as there
is compliance hereof, it cannot be
said any of the provisions of
these sections including section 40 and 38 are unconstitutional.
Having said this, I do not think
that Inspector Jacobs having been
found to have had reasonable suspicion that an offence falling under
schedule I and schedule
II part II of Act 51 of 1977, to wit
attempted murder was committed, had any discretion to exercise under
section 40, particularly
having regard to the provisions of section
59(1), 57, 56 and 54 as discussed above. Even if I was to be wrong
in this regard,
another issue arises:
WHETHER INSPECTOR
JACOBS HAD PROPERLY EXERCISED A DISCRETION IN ARRESTING THE
PLAINTIFF?
26. BERTELSMANN J in
Louw’s
case and also the Judge in
Gellman’s
case
supra
,
respectively appear to have been particularly worried about the
arrests by police officials without warrants. In my view, once
a
reasonable suspicion is established under section 40(1)(b), a defence
of justification is proved. If a police officer has a
discretion,
having established reasonable suspicion, the
onus
then shifts to the one who alleges that the discretion was not
properly exercised.
26.1 Counsel for the
plaintiff sought to argue that factors mentioned in paragraph 4.1 to
4.13 of this judgment and not denied by
the defendants, serve to
establish on the balance of probabilities that the exercise of
discretion in arresting the plaintiff instead
of warning, summonsing
or releasing him on bail, was unlawful and unconstitutional.
26.2 In paragraph 3 of
the plaintiff’s initial written heads of argument, the
submission is made as follows:
“
3.1 In the
alternative to the aforesaid, and in the event that this Honourable
Court finds that Inspector Jacobs had a reasonable
suspicion as
stated above, it is submitted that the arrest is unconstitutional and
therefore unlawful on the following grounds:
3.1.1 Inspector Jacobs
had an obligation to consider the facts as set out in the plaintiff’s
reply.
3.1.2 That a
reasonable official in the position of Inspector Jacobs would, having
regards to the facts produced by the plaintiff,
would not have
arrested the plaintiff and would have applied … …
invasive measures to ensure that the plaintiff would
stand his
trial.
”
26.3 This contention
appears to have been premised on the following: Firstly, that
Inspector Jacobs had at his disposal other options
to take than to
arrest and detain the plaintiff. Other measures or options as I see
it, could either have been to act in terms
of section 54, 56 or 59.
I have dealt with this aspect earlier in the judgment and I do not
think that such options fell within
the powers or discretion of
Inspector Jacobs seen in the light of the seriousness of the offence.
Secondly, the suggestion is
that the discretion (if it does exist),
was not properly exercised. The factors mentioned in paragraph 4.1
to 4.13 of this judgment
and the contention made by counsel for the
plaintiff in this regard, in my view, fails to take the following
factors into consideration.
26.3.1 That the report
was made to Inspector Jacobs and the docket was also handed over to
him later that the evening.
26.3.2 That of importance
for police was first to locate the bakkie and the occupants who were
alleged to have committed the offence.
26.3.3 That it may have
been difficult to find people to authorise and issue a warrant so
late in the evening without putting the
investigation at risk.
26.3.4 That when
Inspector Jacobs arrived at the plaintiff’s home and confronted
the plaintiff he first gave a wrong version
to the police. The issue
is, how do you start to trust a person who had just lied to you that
if not arrested, he will attend
court? Remember, attempted murder is
a serious offence, which justifies a minimum direct minimum
imprisonment of five years.
All factors which he mentioned as having
favoured his release should therefore be seen in the light of this.
26.3.5 That a search was
conducted and no exhibit was found or located. It was therefore of
paramount importance to the police
to still take all efforts to look
for the firearm that was used in the commission of the offence.
26.3.6 It was late in the
evening and therefore not possible or easy without undue delay to
obtain the plaintiff’s profile.
That is, whether he had
previous convictions or pending cases. This of course is very
important. A person alleged to have committed
serious violent crime
or crimes must first be checked in determining whether or not to
release him. You would not want to release
a person who might pose a
threat to the society because of his or her proness to commit such
crimes.
26.3.7 The plaintiff
mentioned to the police a possible accomplice. The plaintiff had to
direct the police where this person lived
in Rustenburg. The
suggestion was that this could have been done without having had to
arrest the plaintiff. I find this suggestion
to be unreal and
unreasonable. Remember, the police were also looking for a firearm
which they did not find at the home of the
plaintiff. The suggestion
is that the plaintiff should have been allowed to be on the loose and
thus create the opportunity for
the plaintiff and his accomplice to
talk and conceal exhibit.
26.3.8 The accomplice’s
house in Rustenburg was searched and still no firearm was found.
This in my view, would have necessitated
the police to launch a
serious search for the firearm during the day. The release of the
plaintiff could not have been done without
hampering the police
investigation or putting such investigation at a risk.
27. In the light of all
of the above, I am not satisfied that Inspector Jacobs exercised his
discretion (if it existed) improperly
in arresting and detaining the
plaintiff. The plaintiff was arrested at about 01:05 on the morning
of 14 January 2006.
His first arrest and subsequent
detention should be found to have been lawful and constitutional. I
now turn to deal with the
second arrest. In doing so, I find it
necessary to deal with the conduct of the public prosecutor.
CONDUCT OF THE PUBLIC
PROSECUTOR IN THE WITHDRAWAL OF THE CASE AGAINST THE PLAINTIFF
28. In the police
investigation diary, marked as exhibit F during evidence, the public
prosecutor made entries in Afrikaans as follow:
“
SA
bespreek met OB en lees dossier. A1 en A2 sê daar is een skoot
geskiet, ‘n persoon gewond. Geen vuurwapen gesien
of waar die
skoot van dan kom nie. dit is nie ‘n geval van Road-rage nie.
Die OB deel my dat huise gevisenteer is, geen
wapen kan gevind word
nie. Verdagtes het geen vuurwapens op stelsel nie. Dit is my
submissie dat dit nie voldoende getuienis
is om arrestasie te
regverdig nie. Bring dossier op 17/01/06 na streekhofaanklaer
(Thibedi) vir verdere opdragte of beslissing.
Verdagtes vrygelaat
voorlopig teruggetrek tot ondersoek voltooi is
.”
29. The time when the
entry was completed is indicated as 10h55. This entry was made at
Britz police station. Based on this instruction
by the public
prosecutor, the arresting officer, Inspector Jacobs, was informed.
Inspector Jacobs then told Fuchs to release the
plaintiff as
initiated by the public prosecutor.
30. Inspector Jacobs says
the prosecutor took this decision without contacting him as the
arresting officer. If he had been contacted,
the circumstances under
which the plaintiff was arrested would have been disclosed to him.
Inspector Fuchs had since died and
he could therefore not testify.
The second arrest of the plaintiff was apparently executed by the
late Fuchs on the instructions
of his commander.
31. The public prosecutor
in taking the decision as he or she did on 14 January 2006,
relied on two statements marked
in the docket as A1 and A2. I find
it necessary to quote in full what is stated in these statements.
“
STATEMENT
A1
1.
On Friday 13/01/06 at
about 21h20 I was travelling with my friend Patrick Simangahso
Ngwenya and Gittrude Sibanda. We parked our
motor vehicle at Bravo
towing tavern to bought liquor. After I have bought that liquor I
went back to the motor vehicle and sitted
at the back sit together
with my friend.
2.
After a few minutes I
saw the motor vehicle passing. I didn’t suspected that car.
After it had passed I heard the big sound,
like firearm.
I
then realised that the car had shot me on my right leg
.
I then saw many gun shots on the right back door of the motor
vehicle.
3.
We then followed that
motor vehicle and managed to took the registration number:
The
number was white Corsa Bakkie Registration no FJS835NW with two white
male
.
We followed the car until it parked at Cookenbull Pub and I was
transported to Britz Hospital because I was bleeding on my right
leg
due to gun shots.
I
went to the police to investigate the matter because I did not gave
them permission to shoot me
.
”
31.1 In my view, it did
not need a scientist to understand what is conveyed in the statement.
Clear, from the statement that the
witness meant this:
31.1.1 that she was in
the car when she heard gunshots.
31.1.2 that these shots
were fired immediately after the plaintiff’s car had passed.
31.1.3 that the shots
were coming from the plaintiff’s vehicle. “
Realised
that the car has shot me on my right leg
”,
could not have meant anything to a reasonable person other than to
say shots were fired from the vehicle.
31.1.4 that there were
two white male persons in the plaintiff’s bakkie. Indeed as at
the time, the prosecutor withdrew the
charges, it was common cause
that in the car that evening, it was only the plaintiff and his
accomplice and that both of them were
arrested when a decision to
withdraw was taken.
31.1.5 that “
I
did not give them permission to shoot me
”
was referring to the two white male persons who were in the bakkie as
described, that is, the plaintiff and his accomplice.
“
STATEMENT
A2
1.
On the 13 January 2006
at about 21h20 I parked motor vehicle at Bravo 24hrs towing
tavern/café.
2.
I was with Mike my
colleague, Sophy Ngobeni and Gittrude Sibanda. We decided to park
there in order to buy food. My motor vehicle
is Golf 2 silver grey
in colour registration DWX060GP.
3.
Sophy and her friend
Gittrude went inside the shop to buy some food and came back and get
inside the vehicle at the back. I was
outside the motor vehicle
still talking to my friend Mike.
4.
While we were talking
a white Corsa bakkie registration number FJS835NW with two people
inside came along driving slowly. After
it passes us I heard a sound
like a sound of firearm. Then I was scared the bakkie was driving
towards the direction of Britz.
5.
Then Sophy said to me
that she was shot in the right leg near the ankle she was bleeding,
then I immediately get into my motor vehicle
with Mike and both Sophy
and Gittrude and follow that bakkie.
6.
At the T junction
that motor vehicle turned left towards Cook & Bull pub and
stopped just after Cook and Bull then I took
the registration of that
bakkie.
7.
Then I noticed that my
motor vehicle was also shot at as it has some holes on the right back
door. I don’t know why those
two white males were shooting at
us I don’t even know them.
8.
I wont be able to
identify them because it was in the dark so I could not see the.
9.
I didn’t give
anyone permission to shoot at us and my motor vehicle. I request
police investigation into this matter
.”
32. Clear from this
statement that the witness is talking about the occupants of the
plaintiff’s bakkie as the people who
had fired shots and also
damaged his motor vehicle. During the evidence of Inspector Jacobs,
he was referred to the photos of
the vehicle which had several bullet
holes caused by the shots fired at the witnesses’ vehicle. Why
would the public prosecutor
find that the car which was followed and
registration number taken was not sufficient to implicate the
occupants thereof, defeats
one sense of logic. Remember the
plaintiff’s vehicle passed the witness’ vehicle slowly.
Immediately thereafter there
were shots. Clear, the chasing after
the vehicle by the witness suggested that shots were fired from the
vehicle. In paragraph
7 of the statement A2, the witness stated as
follows:
“
I
don’t know why those two white males were shooting at us I
don’t even know them
.”
To suggest that there was no
prima
facie
case in the light of this, in my view, is shocking. For reasons best
known to the public prosecutor, he or she decided to rely
only on
statements A1 and A2. He apparently decided to have no regard to
statement marked A3.
STATEMENT A3
34. This witness was with
the two witnesses who had attested to statements A1 and A2
respectively. In her statement she stated
as follows:
“
1.
On the 13 January 2006
at about 21h20 Sandfontein Bravo 24hrs café/tavern to buy some
food.
2.
I was with my friends
Sophy, Mike and the driver Patrick Ngwenya. Sophy Ngwenya and myself
went inside the shop to buy food. Then
we came back while Mike and
Patrick were talking to each other next to the motor vehicle.
3.
We got inside the
motor vehicle at the back then I saw a white motor vehicle passing us
driving slowly then I heard a banging sound
like a sound of a gun.
4.
Then my friend Sophy
said she was shot in the leg near the ankle she was bleeding.
Patrick and Mike got immediately in the motor
vehicle. That white
Corsa bakkie stopped at a pub next to Cook and Bull then Patrick took
the registration of the motor vehicle,
and he said his motor vehicle
was shot, because he showed us the holes on the right back door.
6.
I don’t know
those guys and I don’t know why they were shooting at us. I
require police investigation into the matter
.”
34.1 To say, “
A1
and A2 sê daar is een skoot geskiet
”
smacks the prosecutor’s attention and understanding of the
information as contained in A1 and A2. Paragraph 7 of
A2 quoted
earlier in this judgment does not convey one shot as been fired.
Similarly, in paragraph 2 of the statement A1 makes
it clear that
several shots were fired. There were about four people at the
vehicle of the witness in A2. Several shots were
fired at them. One
hit the witness in A1. Clear that, there was attempted murder aimed
at about four people. Therefore, four
charges of attempted murder
would have been justified. The car was also damaged.
34.2 “
Geen
vuurwapen gesien of waar die skoot vandaan kom nie
.”
I
fail to understand the prosecutor’s thinking in this regard.
The suggestion is that there was no case because a firearm
was not
seen by the witnesses. The question is, did they have to see a
firearm in order to convey that the shots were fired from
the
plaintiff’s car? Of course not. “
Of
waar die skoot vandaan kom nie
.”
This
suggests that in A1 and A2, the witnesses stated that they did not
know from where the shots were fired. Clear that the prosecutor
was
speculating in this regard, because none of the three witnesses
stated that they did not see from where the shots were fired.
All
the three witnesses pointed at the occupants of the plaintiff’s
car as the people who had fired shots. In any event,
if the
prosecutor was in doubt in this regard, the least he could have done
was to call for further statements from the witnesses
instead of
risking to withdraw such serious charges and to order for the release
of the plaintiff and his accomplice. In all the
three statements,
that is, A1, A2 and A3, cell phone numbers are indicated. The
prosecutor if he wanted to deal with the matter
diligently, he could
have contacted the witnesses without undue delay. He did not,
instead, in my view, decided to take a short
cut by withdrawing the
charges. I deal later with the issue whether or not the prosecutor
in question did have the power or authority
to withdraw the charges
at an infant stage of the police investigation.
34.3 “
Dit
is nie ‘n geval van Road Rage nie
.”
The
issue whether or not the statements by the three witnesses
established a
prima
facie
case, has nothing to do with whether this was the case of a road rage
or not. I fail to understand what of relevance this had
in making
the prosecutor to withdraw the charges. It is as if he withdrew the
charges because it was not an incident of a road
rage and that
therefore it was not serious.
34.4 In my view, “
OB
deel my dat huise gevisenteer is, geen wapen kon gevind word nie
”,
made
a strong case for further investigation and a case against the
plaintiff’s release and withdrawal of the charges. Remember,

at 08h50 on 14 January 2006, the plaintiff was formally
interviewed by the police. The plaintiff declined to make any

statement to the police. Only about two hours after the interview,
the prosecutor decided to withdraw the charges due to the supposed

lack of sufficient evidence against the plaintiff, and his
accomplice. Remember, the entry in the police’s investigation

document was completed or signed for at 10h55 by the public
prosecutor.
34.5 “
Verdagtes
het geen vuurwapen op stelsel nie
.”
This
suggests that because the plaintiff and his accomplice did not have
licence for firearms they therefore could not have shot
at the
witnesses as alleged. The fact that they did not lawfully own any
firearm, could not have served as the basis to find that
there was no
prima
facie
case against them or to release them. Very often, those who commit
crimes with firearms, use illegal firearms. For this reason,
the
prosecutor should have allowed the investigation to take its course
unhindered.
34.6 “
Dit
is my submissie dat dit nie voldoende getuienis is om arrestasie te
regverdig nie
”,
sounds
like the prosecutor was arguing for the plaintiff. The arrest is one
thing, and instituting prosecution is another thing.
True, you may
institute prosecution proceeding without arrest. But, it looks like
“nie
voldoende getuienis is om arrestasie te regverdig nie
”
was
what really concerned the prosecutor than “
nie
voldoende getuienis om vervolging uit te voer nie
”.
O
f
course the prosecutor could not have said this. There was, in my
view, sufficient evidence to institute prosecution, but not
only to
prosecute, but also to arrest as indicated earlier in this judgment.
One is tempted to conclude that the prosecutor in
withdrawing the
charges seems to have been motivated by two things. Firstly, he
could not release the plaintiff on bail because
an attempted murder
charge is not a schedule 7 offence in respect of which he would have
been entitled to fix bail as provided
for in section 59A of the
Criminal Procedure Act. Secondly, it was over the weekend and
outside court hours and therefore no bail
proceedings could have been
instituted as such proceedings are prohibited in terms of section
50(6)(1)(b) of the Criminal Procedure
Act.
34.7 “
Bring
dossier op 17/1/2006 na Streekhofaanklaer (Thibedi) vir verdere
opdragte of beslissing
”,
in
my view, makes what I have mentioned above even more clearer. What
instructions are there to be given by the Regional Court
Public
Prosecutor, because a decision has already been taken? Charges had
already been withdrawn. He or she who had withdrawn
the charges
should have given further instructions and not to withdraw the
charges and then defer further decision to another public
prosecutor.
I find this to be strange indeed and defeats one’s logic.
34.8 “
Verdagtes
vrygelaat voorlopig teruggetrek tot ondersoek voltooi is
”,
particularly
“
tot
ondersoek voltooi is
”,
is a
clear indication that the prosecutor was fully aware that
investigation was still incomplete. Quite very often, in bail
application
for example, detention if an accused applying for bail is
sanctioned pending completion of investigation, especially where
there
is a fear of destruction or … of evidence or exhibits or
where statements are still expected to be taken from witnesses.

Incompletion investigation, should have, contrary to what the public
prosecutor did, served as the basis to go against the release
of the
plaintiff. Having said this, there is another issue which in my view
is raised by the conduct of the prosecutor.
WHETHER THE PROSECUTOR
HAD AUTHORITY TO WITHDRAW THE CHARGES AGAINST THE PLAINTIFF?
35. In paragraph 19.16 of
this judgment, I referred to the provisions of section 6 of Act 51 of
1977. “
May
before an accused pleads to a charge, withdraw that charge
”
in section 6 can never have been intended to mean releasing a suspect
and withdrawing the charges at an early stage of the
police
investigation. The issue here, as I see it, is whether a prosecutor
can withdraw the charges against an accused, even before
he or she is
charged by the police or whether such withdrawal can be sanctioned at
an infant stage of the police investigation?
There was no evidence
that the plaintiff was formally charged when the public prosecutor
sought to have withdrawn the charges
against him. If the plaintiff
was not charged, because the police were still investigating the
case, there was nothing to withdraw.
35.1 Here, one must not
confuse a person arresting and detaining a person for further
investigation, with the charging of a person.
In practice, a person
is charged to enable the police to take that person to court. If the
arrested person is not charged and
is not taken to court within 48
hours he or she should be released. This was not the case in the
instant case. If there was nothing
to withdraw, the public
prosecutor was not entitled to order the release of the plaintiff.
The
onus
was therefore on the plaintiff, to prove that when he was released,
he was formally charged. In my view, he has failed in discharging

the
onus
in this regard. The interview that he had with Fuchs, without
evidence, cannot be reckoned as a proof thereof.
35.2 Even if I was to be
wrong in this regard, the public prosecutor should be seen to have
wrongly cut through the police’s
domain of investigating a
crime. A public prosecutor in my view, is not a
dominus
litis
before the police had submitted a docket to him for prosecution and
therefore he could not claim to have been a
dominis
litis
by getting into the police station, barely some few hours after the
arrest and after the police had just interviewed the suspect.
At
that stage, the police were still completely and exclusively in
charge of the case, bearing in mind that it was a weekend,
and
therefore the prosecutor could not have instituted bail proceedings.
Secondly, the prosecutor could not have fixed bail, his
powers
thereto having been limited to offences in schedule 7. (See also
paragraphs 19.10 to 19.15 of this judgment.) Very clear
from these
paragraphs that both in terms of the constitution and also for
practical purpose, but even more importantly for efficiency
and
effectiveness in combating crimes, there has to be a distinct
function between the prosecution and the police. At the same
time
co operation should prevail. Crimes are investigated by the
police. The prosecutors should institute the prosecution.
That is,
their core function is to prosecute crimes. It is the police who
must effect arrest in terms of section 40 and not the
public
prosecutor. Once the police through the arresting officer have
formed the view that there is a reasonable suspicion that
a schedule
1 offence has been committed, they must effect arrest. The
prosecutor ought to form the view whether to prosecute and
not
whether there is or was “
voldoende
getuienis om die arrestasie te regverdig
”.
35.3 The prosecutor who
had withdrawn the charges against the plaintiff and ordered his
release must have frustrated the police.
Few hours after the
plaintiff was released that morning, in the afternoon, he was
arrested again. One can ask a question why?
I find that the public
prosecutor did not have the authority at all to withdraw the charges
against the plaintiff and his release
on 14 January 2006
was therefore wrongful. Even if I was to be wrong in this regard,
the public prosecutor had in any
event acted improperly, firstly in
withdrawing the charges in the face of a
prima
facie
case against the plaintiff, and secondly, in meddling with the police
investigation at its very early stage. On this alone, the

plaintiff’s first release should be found to have been
wrongful. This then brings me to consider another issue.
WHETHER THE SECOND
ARREST OF PLAINTIFF WAS LAWFUL?
36. The person who
executed the plaintiff for the second time is late. Therefore, he
could not testify. It was Inspector Fuchs.
He acted on a command by
his superior. His superior did not testify. Whilst the first
release of the plaintiff has been found
to have been wrongful or
unlawful, the difficulty the defendants are having with regard to the
second arrest is twofold. Firstly,
the commander who gave
instructions to the late Inspector Fuchs to arrest the plaintiff for
the second time, did not testify.
Whilst one might be tempted to
suggest that the second arrest was out of the frustration and the
police’s failure to understand
why the public prosecutor
withdrew the charges, it would remain a speculation. The fact that
the first release was unlawful would
not validate the second arrest
in the absence of evidence regarding the second arrest and in
particular justifying why the warrant
for the arrest of the plaintiff
was not sought. Secondly, the defendant conceded that the second
arrest was unlawful. It looks
like, because of this concession, the
defendants elected to lead no evidence regarding the circumstances
under which the second
arrest of the plaintiff was ordered. In my
view, had evidence been led around this aspect, the defendants would
have had a lesser
burden seen in the light of the wrongful conduct of
the public prosecutor in releasing the plaintiff. Therefore, not
much could
be said about the second arrest. The defendants elected
not to join issues with the plaintiff.
QUANTUM REGARDING THE
SECOND ARREST
37. Although counsel for
the plaintiff could not tell the court as to how much should actually
be awarded to the plaintiff, I was
furnished with a number of
authorities dealing with this aspect. Not very easy task in
determining general damages. In this case,
the bulk of plaintiff’s
evidence revolved around his experience in the cell when he was
locked in the morning of 14 January.
He spoke about the robbery
of his possessions whilst in the cell. His fear of being possibly
raped. He spoke of the cell environment,
the toilet and his general
fear of the people in the cell which was dark.
38. He testified about
how he was traumatised by the experience. For example, his first
arrest in the middle of the night after
his dog had barked. The
arrest having taken place in the presence of his wife and his child.
Since this arrest, he can no longer
sleep properly and in fact since
his arrest during the night, he cannot afford to sleep in the bedroom
with his wife. This is
so because everytime his dog barks in the
evening, he wakes up and drives in the street. He sleeps in the
sitting room and does
not sleep with his wife, because he fears that
the police might come from him at anytime in the evening.
39. Whilst I find this
very strange, the trauma, however, appears to prompted or caused by
the first arrest and subsequent detention
thereof. Not very much was
said about the second arrest as being the cause of all this
behaviour. Secondly, his detention after
the second arrest was for
very limited hours. Having been arrested at 14h50, he was released
at 18h30.
40. The first arrest was
not unlawful. It was executed without a warrant based on reasonable
suspicion as contained in statements
A1, A2 and A3 and also based on
the plaintiff’s statement which was proved to be wrong
regarding his alleged alibi and the
use of his bakkie. Having regard
to all these factors, I do not think that anything in the region of
R20 000.00 would be
inappropriate.
REFERRAL OF THE MATTER
TO THE DIRECTOR OF PUBLIC PROSECUTIONS
41. During the
discussions both counsels were quizzed as to the basis on which the
second arrest was said to have been unlawful.
Other than to say it
was executed without a warrant, I could not be told, what formed the
basis for the arrest. When counsel
for the defendants was questioned
as to why no one was called to testify on behalf of the defendants,
he indicated that he was
acting on instructions regarding the second
arrest, apparently despite his expressed view on the issue. He,
however, holds the
view that justice was not done to the victims of
the crime. I share his view.
42. I am sure that the
witnesses who had reported the matter to the police on the evening of
13 January 2006 and having been
told that the occupants of the
bakkie were arrested and released (if they were so told), must be
wondering, wherever they are,
as to what else they could have done to
ensure prosecution of the plaintiff and his accomplice. This can
only have served to bring
the administration of justice into a
disrepute.
43. It is very clear from
the statements, that firstly, there is a language problem. The
statements are not taken in good English.
It appears from the
particulars of the police official who took down the statements, that
he or she is possibly an African. He
is also a constable and in all
probabilities not well experienced in the taking of statements.
Secondly, the information contained
in the statements, whilst
establishing a
prima
facie
case against the plaintiff, there might have been a need to retake a
more detailed statements from the witnesses. This, the public

prosecutor who withdrew the charges had failed to do, or to give such
instructions.
44. It must have been
clear to the public prosecutor that it is not uncommon that quite
very often statements of witnesses taken
by the police are not
detailed and that to make a decision to withdraw charges and to order
for the release of the suspects in
the circumstances it was done,
could have a devastating effect to the police investigation and
subsequent possible prosecution.
45. Having said all of
this, I find it necessary to refer this matter to the Director of
Public Prosecutions, firstly to review
or reconsider the decision of
the public prosecutor in withdrawing the charges against the
plaintiff and his friend, secondly,
to investigate whether the public
prosecutor breached any of his powers and or obligations in dealing
with this matter.
COSTS
46. Both parties have
substantially succeeded in this matter. The bulk of the evidence
both on merits and quantum revolved around
the first arrest. The
defendants have been found not to have acted unlawfully in arresting
and detaining the plaintiff until his
release was sanctioned by the
public prosecutor. On the other hand, the defendants failed to
justify the second arrest and detention
thereof. Having regard to
all of this, an appropriate order should be for each party to pay his
or her own costs.
ORDER
47. I conclude by making
the following order:
47.1 Judgment is hereby
granted in the amount of R20 000.00 against the defendants in
respect of the second arrest.
47.2 The claim against
the defendants relating to the first arrest is hereby dismissed.
47.3 Each party to pay
his or her costs.
47.4 The registrar of
this court is directed to send a copy of this judgment to the office
of the Director of Public Prosecutions,
Pretoria with a directive to
–
47.4.1 reconsider or
review the decisions of the public prosecutor to withdraw the charges
against the plaintiff and his friend
on 14 January 2006;
47.4.2 investigate and/or
consider whether the public prosecutor in withdrawing the charges
against the plaintiff and his friend
did not breach the prosecution
policies, authorities and his obligations.
M F LEGODI
JUDGE OF THE NORTH
GAUTENG HIGH COURT
Heard on
: 19
May 2009
For
the Applicant
: Messrs
Gerhard Wagenaar Attorneys, Pretoria
For
the Respondents
: The
State Attorney, Pretoria
Date
of Judgment
: 18
June 2009