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[2008] ZAWCHC 215
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Brown and Another v Director of Public Prosecutions and Others (8045/2008) [2008] ZAWCHC 215 (2 June 2008)
ORDER
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS)
CASE
NUMBER:
8045/2008
DATE: 2
JUNE 2008
In
the matter between
JOSEPH
ARTHUR WALTER BROWN 1
S[
APPLICANT
SUSAN
JENNIFER BROWN 2
nd
APPLICANT
and
DIRECTOR
OF PUBLIC PROSECUTIONS 1
st
RESPONDENT
DIRECTORATE
OF SPECIAL OPERATIONS 2
nd
RESPONDENT
DISTRICT
CONTROL MAGISTRATE
CAPE
TOWN (MR MAKU) 3
rd
RESPONDENT
DISTRICT
MAGISTRATE CAPE TOWN
(MR
MHALANGU) 4
th
RESPONDENT
JUDGMENT
FOURIE,
J
Applicants
have brought an urgent application in which the following relief is
sought. Firstly, that the immediate release of First
Applicant be
ordered in terms of Section 35(2)(d) of the Constitution. Secondly,
that Respondents immediately furnish Applicants'
attorneys with
copies of the affidavits and other documents and information which
were used in support of the application to the
Magistrate, Mr Maku,
at Cape Town Magistrate's Court, to issue and authorise the warrants
for the arrest of First and Second Applicants
on or about 3 April
2008.
The
affidavit on which Mr Maku, Third Respondent in this application,
relied when issuing the warrants for the arrest of Applicants,
was
deposed to by a special investigator appointed to Second Respondent,
one Shireen Fraser
r
and a copy thereof is annexed to the affidavit of Third Respondent in
the present proceedings. Applicants have also been supplied
with the
other relevant documentation on which Third Respondent based his
decision to issue and authorise the said warrants. It
follows that
the remaining issues which I have to deal with, relate to the order
for his immediate release sought by First Applicant
as well as the
issue of the costs of this application. The application is opposed by
Second and Third Respondents while First and
Fourth Respondents abide
the decision of the Court.
Mr
Khan appeared for Applicants while Second and Third Respondents were
represented by Mr Webster SC. I am indebted to both of them
for their
assistance in the adjudication of this matter. In view of the urgency
of the matter, I do not intend traversing the wide-ranging
allegations of the parties in any great detail. Where necessary, I
will briefly refer to the relevant evidence. It appears that
the
following facts are common cause. First Applicant was first arrested
on 6 March 2007 on Fidentia-related charges and on 24
March 2007 he
was released on bail of R1 million. In August 2007 additional charges
against First Applicant were added. He was
granted further bail of R5
000 in respect thereof. On 3 April 2008 Third Respondent issued and
authorised the present two warrants
for the arrest of both Applicants
on new charges. These warrants were not executed. On 4 April 2008
there was a meeting at the
offices of Second Respondent in Cape Town.
First and Second Applicants as well as their attorney, Mr Sooth,
attended the meeting.
Adv Morrison employed by Second Respondent as
Deputy Director of Public Prosecutions and Adv Du Toit, a Senior
State Advocate in
the employ of Second Respondent, as well as Special
Investigator Edwards, were also present. At this meeting, the new
charges to
be preferred against both Applicants and one Theart, as
weil as the warrants which had been issued for the arrest of both
Applicants,
were discussed. On 25 April 2008, Second Applicant and
the two minor children of the Applicants left for Australia. They are
presently
stilt in Australia. On 9 May 2008 the warrant for the
arrest of First Applicant, issued by Third Respondent on 3 April
2008, was
executed by the arrest of First Applicant. He is presently
still detained and has appeared in the Cape Town Magistrate's Court
from time to time.
Section
12(1) of our Constitution protects each persons right to freedom,
which includes the right not to be deprived of his or
her freedom
arbitrarily or without just cause. Section 35(2)(d) of the
Constitution accordingly provides that every detained person
has the
right to challenge the lawfulness of his or her detention before a
Court and if the detention is unlawful, to be released.
It follows,
upon a proper interpretation of these provisions of the Constitution,
that if a detained person challenges his or her
detention and the
State cannot prove the lawfulness of the detention, the Court
declares the detention unlawful and the right to
be released follows
automatically from the decision of the Court. See
Constitutional
Law of South Africa
,
Second Edition at 51-55.
Mr
Khan and Mr Webster accordingly accepted that the onus of proving the
lawfulness of First Applicant's detention rests on Respondents.
This
onus has to be discharged on a balance of probabilities. As explained
by Du Toit et al in
Commentary
on the Criminal Procedure Act
at 5-2
p
an arrest is fully regulated by legislation and, in general, the
object of an arrest must be to bring the arrested person before
a
court to be charged, tried and then either convicted or acquitted. If
the person effecting the arrest has an ulterior motive
for the
arrest, for example, to intimidate or punish the arrested person, the
arrest will be unlawful.
It
was stressed in
Louw
vs Minister of Safety and Security
2006
(2) SACR 175
(T), that as an arrest is
prima
facie
wrongful
and unlawful, therefore it is for the State to prove
that
the
arrest was lawful.
Bertelsmann
J
,
who handed down the Louw judgment, further expressed the view that if
the police
bona
fide
fear
that a suspect will evade justice, then an arrest is the correct
option. But, by the same token, this makes an arrest
ultra
vires
when
exercised against a suspect under circumstances where the suspect is
perfectly willing to come to court on warning or on notice
or
summons.
In
my opinion, there is much to be said for this view of the Learned
Judge provided, of course, that each case has to be dealt with
on its
own merits. A caveat of this nature was added by
Bertelsmann
J
at 187 d - e namely:
"If
there is no reasonable apprehension that the suspect will abscond or
fail to appear in court if a warrant is first obtained
for his or her
arrest or a notice or summons to appear in court is obtained, then it
is constitutionally untenable to exercise
the power of arrest."
I
should add that in
Charles
vs Minister of Safety and Security
2007
(2) SACR 137
(W),
Goldblatt
J
differed from
Bertelsmann
and
held that the law in this regard is as was stated in the
pre-constitutional decision of
Tsose
vs Minister of Justice and
Others
1951 (3) SA 10
(A) at 17H, namely:
"There
is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective."
It
should, however, be noted that
Goldblatt
J
added the following qualification at 144 d - e:
"Obviously
the position will be different if the action of the policeman is
mala
fide
or
an abuse of the right of arrest given to him."
Finally,
in this regard, reference should be made to the recent decision of
Geliman
vs Minister of Safety and Security
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W). In this case a two judge bench differed from
Goldblatt
J
and endorsed the approach followed in the
Louw
case, namely that an arrest is such a drastic interference with the
constitutional rights of an individual to freedom of movement
and to
dignity, that an arrest should only be the last resort as a means of
producing an accused person or a suspect in court.
In
my view, a further caveat should be added when considering and
applying the principles enunciated in the
Louw
and 5
Gellman
judgments. In those cases, as well as the
Charles
case,
the arrests were effected by policemen without first obtaining
warrants of arrest in terms of
Section 43
of the
Criminal Procedure
Act No. 51 of 1977
. The arrests were made in terms of
Section 40(1)
of the
Criminal Procedure Act 10 on
the strength of witness
statements onty. Part of the mischief with which the courts were
faced in those instances, is described
as follows in paragraph 82 of
the
Gellman
judgment:
"Our
own experience in these courts indicates that the practice of
effecting warrantless arrests on the strength of a sworn
statement
only is all too prevalent in our society. While there may be
circumstances in which the police are justified in effecting
an
arrest on the strength only of a witnessstatement, the police should
be circumspect in doing so."
The
court accordingly held that if no exigent circumstances exist, for
example, that the suspect would not attend his or her trial,
the
police should preferably seek corroborative evidence before making a
warrantless arrest.
In
the instant case, warrants of arrest were obtained on 3 April 2008.
Same were issued on the strength of an application by Adv
Morrison,
read with an affidavit deposed to by Shireen Fraser, the Special
Investigator employed by Second Respondent. First Applicant,
however,
maintains that his detention is unlawful as the warrant for his
arrest was unlawfully obtained and thereafter unlawfully
executed.
Before
considering the grounds upon which First Applicant relies in
contending that the warrant for his arrest was unlawfully obtained
and executed, I have to deal with the allegation made by his
attorney, Mr Booth, in his affidavit, that when appearing in the
Magistrate's Court subsequent to his arrest, the Presiding
Magistrate, Fourth Respondent in this application, denied First
Applicant
the opportunity of adducing evidence to challenge the
lawfulness of his detention. Firstly, in this regard, I should stress
that
I am not sitting in review of or in an appeal against any order
made by Fourth Respondent. What I am dealing with is a substantive
application by First Applicant seeking his immediate release in terms
of Section 35(2)(d) of the Constitution. Be that as it may,
it is, in
my view, in any event clear from the transcript of the proceedings in
the Magistrate's Court that Fourth Respondent did
not refuse First
Applicant the opportunity to testify as to the alleged unlawfulness
of the issuing of the warrant and its execution.
Fourth Respondent,
in fact, postponed proceedings to enable First Applicant to testify,
but thereafter First Applicant's medical
condition precluded him from
doing so.
Turning
to the issue of the lawfulness or not of the warrant for the arrest
of First Applicant, the starting point has to be
Section 43
of the
Criminal Procedure Act. The
relevant provisions of
Section 43
are the
following:
"1.
Any magistrate may issue a warrant for the arrest of any person
upon the written application of an Attorney
Genera!, a
Public Prosecutor or a commissioned officer of the Police-fa)
which sets out the offence alleged to have
been committed;
which
alleges that such offence was committed within the area of
jurisdiction of such magistrate, and
which
states that from information taken upon oath there is a reasonable
suspicion that the person in respect of whom the warrant
is applied
for has committed the alleged offence."
It
is clear from the contents of the written application of Adv
Morrison, read with the accompanying affidavit of Special
Investigator
Fraser, that the requirements of
Section 43
of the
Criminal
Procedure Act had
been met and that the warrant for the arrest of
First Applicant had correctly been issued by the magistrate, Third
Respondent,
in accordance with
Section 43.
It
was submitted on behalf of First Applicant that having regard to the
prevailing circumstances, there was no need for the obtaining
of the
warrants of arrest and that First Applicant was never approached to
obtain an explanation about the new charges, prior to
the application
for the warrants of arrest. The prevailing circumstances referred to
by First Applicant include the fact that he
had on two previous
occasions been granted bail on Fidentia-related charges, and that he
had always attended all his court appearances
and complied with all
his bail conditions. He contended that if Second Respondent wished to
add any more charges emanating from
the Fidentia matter, these
charges should have been joined to the existing charges without the
need to apply for a warrant for
his arrest. He also maintained that
Second Respondent could merely have warned or summoned him and Second
Applicant to appear in
court.
There
is no obligation on Second Respondent or, for that matter, the State,
in any intended prosecution to approach a suspect for
an explanation
about the intended charges, nor does the suspect have a right to
demand that he or she be approached for an explanation
prior to the
State applying for a warrant of arrest. 1 can, in any event, imagine
that in certain circumstances it would be rather
unwise for the State
to adopt such an approach. Similarly, an accused person cannot, as of
right, demand that additional charges
brought against him or her,
should be joined to any existing charges. The State, or Second
Respondent in this instance, is
dominus
litis.
It
should also be borne in mind that, according to Second Respondent,
the Fidentia investigation is wide-ranging and comprises a
number of
distinct and separate legs. Each is based on different facts, involve
different legal entities, different charges and
different persons as
accused. The common denominator in all the different matters,
however, is the involvement of First Applicant.
The charges forming
the subject matter of the present application are based on separate
facts, have different persons as accused,
i.e. Second Applicant,
Theart and First Applicant, and relate to a separate legal entity
namely the Antheru Investment Trust. As
submitted by Mr Webster,
steps to join all matters on one charge sheet where a number of
different accused are involved, may even
amount to a mis-joinder.
It
is appropriate at this stage to deal with a separate ground upon
which reliance was placed, in submitting that the warrants of
arrest
were unlawful. This is the fact that one Heydenrych, the managing
trustee of Antheru Investment Trust, deposed to an affidavit
stating
that he had never laid any criminal charges on behalf of the Trust
against Applicants. However, prior to deposing to this
affidavit,
Heydenrych had deposed to a statement as a state witness and on the
strength thereof the new charges were preferred
against Applicants
and Theart. Second Respondent intends calling Heydenrych as a state
witness to testify in respect of the new
charges. As submitted,
correctly in my view, on behalf of Second Respondent, the prosecution
in respect of the new charges may
proceed with Heydenrych as a state
witness, and the fact that such proceedings may not have been
initiated by a formal complaint
by Heydenrych, is of no material
consequence.
In
argument Mr Khan submitted that the issuing of the warrant of arrest
was tainted as it infringed upon First Applicant's constitutional
right to fair pre-trial procedures. In particular, he submitted that
the representatives of Second Respondent ought to have told
Third
Respondent that they did not intend arresting First Applicant at that
stage and should have given Third Respondent details
of the aforesaid
prevailing circumstances leading up to the application for a warrant
for the arrest of First Applicant. In my
view, there was no duty,
constitutionally or otherwise, upon Second Respondent to have
informed Third Respondent that at that stage
they did not intend
executing the warrant for the arrest of First Applicant. Second
Respondent did, in my opinion, have a discretion
to decide if and
when the warrant would be executed and was under no duty to inform
Third Respondent of its intention in this regard.
Third Respondent,
as the magistrate to whom application was made for the issuing of a
warrant, had a duty to determine whether
the requirements of
Section
43
of the
Criminal Procedure Act were
met and there was no need for
him to enquire into the intention of Second Respondent insofar as the
execution of the warrant was
concerned. Nor would there, in view of
this discretion of Second Respondent as the authority entitled to
execute the warrant, have
been any need for Second Respondent to have
informed Third Respondent of the circumstances leading up to the
application for the
issue of a warrant of arrest on these new
charges.
Insofar
as the discretion of the Second Respondent in this regard is
concerned, reference can be made to a decision of the Appellate
Division in
Minister
van die S A Polisie vs Kraatz
1973
(3) SA, at 510 C-D where the following was said:
"In
die onderhawige geval het Sersant Pieterse twee hoedanighede beklee,
die van Staatsaanklaer en die van polislebeampte.
En, na my mening,
het sy bevoegdhede in eersgenoemde hoedanigheid ft diskresie ingehou,
beide met betrekking tot die vraag of
hy die betrokke persoon by
wyse van inhegtenisneming
r
ingevolge Vi lasbrief, voor 'n regterlike beampte sal laat bring, in
plaas van horn voor so h beampte te daag (by wyse van waarskuwing
of
dagvaarding), asook 'n diskresie om te besluit of hy die lasbrief
onder sekere om stand ighede, of na gelang van sekere gebeure,
sal
laat uitvoer a! dan nie."
I
accordingly conclude that there was no infringement of First
Applicant's right to fair pre-trial procedures in this regard. I
further find, for the reasons already furnished, that the warrant for
the arrest of First Applicant was lawfully obtained.
This
brings me to the question whether the warrant for the arrest of First
Applicant was lawfully executed. As I have already mentioned,
First
Applicant maintains that there was no need to have him arrested as
Second Respondent could merely have warned or summoned
him to appear
in court. I have also alluded to the intention of Second Respondent
not to arrest First Applicant at the initial
stage after obtaining
the warrant for his arrest. According to Adv Morrison, it was
intended to formally execute the warrant of
arrest only on First
Applicant's next court appearance on the earlier charges, namely on
24 April 2008. It was, however, Second
Respondent's intention to
arrest Second Applicant on 4 April 2008. To this end, the meeting of
4 April 2008 was arranged. At this
meeting the new charges were
discussed and it was mooted that First Applicant would take personal
responsibility for money that
may have emanated from Antheru
Investment Trust and which was paid into a joint account of
Applicants. There is, however, a dispute
of fact as to the final
decision reached by the parties at this meeting. Morrison maintains
that it was agreed that the warrant
for the arrest of Second
Applicant would not be executed at that stage, but would be held in
abeyance pending finalisation of the
terms upon which First Applicant
would take responsibility for the charges relating to the Antheru
Investment Trust matter.
Sooth
and First Applicant, on the other hand, say that the terms upon which
First Applicant accepted responsibility for the new
charges, were
finalised at this meeting and it was agreed that Second Respondent
would not execute the
warrants
against
First and Second Applicants at all. As pointed out by Mr Webster, it
is significant that neither First Applicant nor his
attorney,
volunteer what the terms were upon which First Applicant would accept
responsibility for the new charges. Contrary to
this version of First
Applicant and his attorney, Morrison maintains that it was agreed
that Booth would revert to him before 24
April 2008, to indicate to
what extent First Applicant would accept responsibility on the new
charges.
I
realise that a court should normally be hesitant to attempt to
resolve disputes of fact on affidavit. However, I am of the view
that
if a definite agreement had been reached on 4 April 2008, that both
warrants would not be executed at all, as alleged by and
on behalf of
First Applicant, it is strange that First Applicant's attorney did
not unequivocally state this as a fact at the subsequent
proceedings
in the Magistrate's Court. During those proceedings, it was put no
higher than to state that an "impression"
was created that
the warrants would not be executed. When questioned by the preceding
magistrate, Fourth Respondent, as to whether
the State had furnished
him with any undertakings in this regard, the response of First
Applicant's attorney was only that an 'impression
was created so far
as the defence is concerned." This is a far cry from the
statement in paragraph 43 of his affidavit in
these proceedings,
which forms part of the founding papers, where the following is said:
"When
we left the meeting on 4 April 2008, all of us clearly understood
that the warrants would not be executed at all."
To
this should be added the following statement of Second
Applicant
regarding the meeting of 4 April 2008, in her affidavit which forms
part of the Applicants founding papers:
"It
was at this meeting that it was inferred that my involvement in the
alleged crime had been cleared up to the satisfaction
of the DSO
(Second Respondent). This was further enforced when:
no
request was made from me to remain in the region or the country,
no
request was made for my passport, and
(c)I
was never contacted by the DSO again."
This statement of
Second Applicant clearly falls far short of the unequivocal
agreement contended for in Mr Booth's
affidavit in the
present proceedings.
It
appears to me that the probabilities favour the version put forward
by Second Respondent, as to what was finally agreed at the
meeting of
4 April 2008, but it is not necessary for me to make a definite
finding in this regard. I agree with the submission
of Mr Webster,
that whatever agreement was reached by the parties on 4 April 2008,
did not affect the legal status of the warrants
which had been issued
the previous day. Both warrants remained valid, notwithstanding the
arrangement which was clearly made for
the convenience of Applicants.
The
question, however, remains whether the execution of the warrant in
regard to First Applicant on 9 May 2008, constituted a lawful
arrest.
Put differently, is there merit in the contention of First Applicant
that there was no need for Second Respondent to have
had him
arrested, as his attendance at court could have been secured by less
intrusive measures, such as warning or summoning him
to appear in
court on these new charges? In this regard, I incline to the view
that even if a warrant for the arrest of a suspect
has been lawfully
obtained in terms of
Section 43
of the
Criminal Procedure Act, this
in itself does not necessarily justify an arrest to secure the
attendance of the suspect in court. I agree with the view expressed
by
Bertelsmann,
J
in
Louw
vs Minister of Safety and Security
,
supra at 186 C, that any arrest being as drastic an invasion of
personal liberty as it is, must still be justifiable according
to the
demands of our Bill of Rights. Put differently, the conduct of the
person effecting an arrest should not constitute an abuse
of the
right given to such person to effect the arrest.
Second
Respondent contends that the conduct of Second Applicant in leaving
South Africa on 25 April 2008, with the knowledge she
had regarding
the pending warrant for her possible arrest, was a clear indication
that Applicants had negotiated in bad faith to
have the warrant for
her arrest held in abeyance. This, Second Respondent contends,
demonstrated the Applicants to be untrustworthy.
Thus, it was
submitted, once it had been confirmed on 9 May 2008 that Second
Applicant had left the country with the two children
of Applicants,
the assessment of the flight risk status of First Applicant changed
significantly and justified his immediate arrest.
The
manner in which Second Applicant left South Africa, raises certain
concerns. Firstly, it was established by Second Respondent
that she
had left South Africa on a cancel ted passport. The air tickets had
been purchased by a third party and she had obtained
foreign currency
by means of the intervention of yet another third party. The children
were removed from the school which they
attended without any
notification to the school. It may be, as First Applicant has
attempted to explain in his replying affidavit,
that there are
plausible explanations for all of this. However, what I do find
strange, is that the one person who would have been
able to provide
this plausible explanation to the court, namely Second Applicant, has
failed to do so. She did file an initial
affidavit dated 11 May 2008,
to which I have already referred, which forms part of Applicants'
founding papers, but there is a
deafening silence from her in
response to the answering affidavit of Second Respondent, in which
the concerns about the manner
of her departure from South Africa,
were raised. I should mention that in her affidavit of 11 May 2008,
Second Applicant explained
that she has arranged for regular
telephonic and internet communication between the children and First
Applicant. She accordingly
has the necessary means of communication
to have enabled her to file a replying affidavit.
I
am of the opinion that in the prevailing circumstances Second
Respondent, after discovering on 9 May 2008 that Second Applicant
and
the two children had left the country, was justified in concluding
that the assessment of the flight risk status of First Applicant
had
changed significantly. The one compelling reason for First Applicant
to remain in South Africa, namely, the presence of his
wife and their
children in the country, was no longer a factor which could be
considered in his favour. To this should be added
the fact that at
the meeting of 4 April 2008, Applicants had failed to inform Second
Respondent's representatives that they had
agreed to separate and
that Second Applicant and the children were planning to leave the
country.
In
the circumstances, I do not believe that the representatives of
Second Respondent were unreasonable in concluding that the assessment
of the flight risk status of First Applicant, had significantly
changed for the worse, it should be borne in mind that First
Applicant
has been sequestrated and, on the face of it, has no
material ties to this country. It should also be recognised, as was
the case
in
State
vs de Kock
,
1995 (1) SACR 299
(T), that the fact that an accused's wife and
children are outside the country, constitutes a significant
inducement to him not
to stand his trial, especially in a case such
as the present, where he faces possible long term imprisonment.
In
my opinion, having regard to the peculiar circumstances of this case,
Second Respondent was justified in arresting First Applicant
to
secure his future attendance in court on the new charges against him.
Put differently, I am satisfied that in the prevailing
circumstances
the arrest of First Applicant did not amount to an abuse of the right
to arrest him in terms of the warrant for his
arrest granted by Third
Respondent.
I
accordingly find that the execution of the warrant was justifiable
according to the demands of the Constitution and, therefore,
lawful.
It follows, in the light of my findings, that Second Respondent has
shown on a balance of probabilities that the detention
of First
Applicant is lawful. The application accordingly falls to be
dismissed.
Although
the alleged sexual assault upon First Applicant, while in custody,
does not have a bearing on the lawfulness of his arrest
or detention,
it is necessary to comment thereon. I would urge the authorities in
whose care First Applicant was at the relevant
time, to investigate
his complaint thoroughly and without delay. If it is found that First
Applicant had been assaulted, the perpetrators
should be identified
and brought to book and steps should be taken to avoid further
occurrences of this nature.
Finally,
I have to deal with the issue of costs. As mentioned at the outset,
Applicants have been partially successful in obtaining
the relief
sought in paragraph 3 of the Notice of Motion. They launched this
application on 16 May 2008, and on 19 May 2008, obtained
the
affidavit and documentation upon which Third Respondent had acted in
issuing the relevant warrants of arrest. However, the
lion's share of
the legal costs, including all the time spent in court, was incurred
m regard to the issue of the lawfulness of
First Applicant's
detention. In the circumstances, I believe it will be just and
equitable to award costs against Applicants as
set out in my order,
which is to follow. I should add that the costs include the wasted
costs occasioned by the postponement of
the matter on 26 May 2008.
In
the result, the following order is made:
1. The
application is refused.
2.
First
and Second Applicants are declared tiable, jointly and severally, for
payment of 80% of Second and Third Respondents' costs
of suit.
FOURIE,
J