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2024
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[2024] ZAFSHC 125
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Chetane v Minister of Police and Another (1436/2022) [2024] ZAFSHC 125 (30 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO/YES
CASE
NO.: 1436/2022
In
the matter between:
FAKO
PHILLIP CHETANE
Plaintiff
[1]
and
THE
MINISTER OF POLICE
First
Defendant
THE
NATIONAL
DIRECTOR:
PUBLIC
PROSECUTIONS
Second
Defendant
Coram:
M Opperman J
Heard:
24 & 25 October 2023 and 2 February
2024
Delivered:
30 April 2024. This judgment was handed down in
court and electronically by circulation to the parties' legal
representatives
via
email
and release to SAFLII on 30 April 2024. The date and time of
hand-down
is deemed
to
be 15h00 on 30 April 2024
Summary:
Trial
-
merits
-
quantum
-
arrest
in terms of
section 40
of the
Criminal Procedure Act 51 of 1977
[2]
read with
section 3
of the
Domestic Violence Act 116 of 1998
[3]
,
detention
and prosecution
JUDGMENT
INTRODUCTION
[1]
This is a case of domestic violence. It turns on
the arrest of the plaintiff without a warrant of arrest; his further
detention
and prosecution for acts of domestic violence that were
allegedly perpetrated.
[2]
I will not be able to say it better than Justice
Albie Sachs when he proclaimed the definition and disgrace of
domestic violence
in South Africa in S
v
Baloyi and
Others
(CCT29/99)
[1999]
ZACC 19
;
2000
(1) BCLR
86
;
2000 (2) SA 425
(CC) (3 December 1999). I will
present the quote from this case hereunder but must first sketch the
nature and atmosphere of the
claims in this case. The preamble of the
Domestic Violence Act 116 of 1996 will suffice for now. The
legislation was promulgated:
To provide for the
issuing of protection orders with regard to domestic violence; and
for matters connected therewith.
Preamble.-RECOGNISING
that domestic violence is a serious social evil; that there is a high
incidence of domestic violence within
South African society; that
victims of domestic
violence are among the
most vulnerable members of society; that domestic violence takes on
many forms; that acts of domestic violence
may be committed in a wide
range of domestic relationships; and that the remedies currently
available to the victims of domestic
violence have proved to
be ineffective;
AND HAVING REGARD to the
Constitution of South Africa, and in particular, the right to
equality and to freedom and security of the
person; and the
international commitments and obligations of the State towards ending
violence against women and children, including
obligations under the
United Nations Conventions on the Elimination of all Forms of
Discrimination Against Women and the Rights
of the Child;
IT IS THE PURPOSE of this
Act to afford the victims of domestic violence the maximum protection
from domestic abuse that the law
can provide; and to introduce
measures which seek to ensure that the relevant organs of state give
full effect to the provisions
of this Act, and thereby to convey that
the State is committed to the elimination of domestic violence,
[3]
Contrasted
with
the above is the reality emphasized in the Supreme Court of Appeal,
that I align myself with, and it is that our legal system
sets great
store by the liberty of an individual.
[4]
The decision to arrest must be reasonable and rational. Our
constitutional reality is the same when prosecution
is
instituted in a criminal court of law. Liberty
is
not only physical freedom; it is to be free and protected from
malignant, harmful and defamatory persecution.
[4]
The
factual scenario in this case yet again demonstrates the persistent
reality of the police, the prosecuting authority
and
the courts in their battle against crime and the protection of our
democracy; they have to take split second decisions to arrest
and
make complicated choices to prosecute and release.
[5]
[5]
Domestic
violence cases are examples of these predicaments that often present
itself and are challenging and complicated to deal
with. It is
emotional and often grim; the people involved and evidence are also
unpredictable. The battle against criminal anarchy
that threatens our
society is grave.
[6]
[6]
In
casu
the
police, the prosecuting authority and the court would surely have
been confronted with severe criticism and liability had the
plaintiff
not been arrested and the complainant and her family came to some
harm at the hands of the same
Mr.
Chetane if he was release without proper
adjudication.
[7]
On
1 April 2021 the complainant
in
the case stated the following in a sworn statement
[7]
that caused the arrest and prosecution of the plaintiff.
It
is the golden threat that bound the incidents and decisions to
arrest, detain and prosecute:
On
Thursday 2021
-
04
-
01
at about 7h10 I had woken up and was about late. I told my
boyfriend
Thobi Phillip Mokoena
[8]
that my
aunt are (sic) coming to the wedding and they are coming to sleep at
my rooms.
My
boyfriend started threatening by saying nobody is going to sleep at
my rooms as he is going to kill me and assault me. I was
about to
(sic) out the door when he try (sic) to grab me. I manage to escape
but he grabbed my bag and I ran away.
I ran
until I arrived at the work and
explain
(sic) my supervisor. This things (sic)
started
on
the 10 March 2021 at about 5h00
he
threatened me by saying he will kidnap me and nobody will find me. He
will find people who will kill me and throw my body away.
I explain
to him that he should leave my room.
He
said that if I told him to leave or even ran away, he will kidnap my
children and kill them. On that Wednesday 2021 -
03
-
10
I
ran
away to my brother's place.
When
at my brother's place Bobby at Bluegumbush he went further by
threatening me by
using
the same words that he will kidnap me and make me vanish forever. He
also said that he will kidnap my children (sic) MP
[9]
who is 8 years old. I felt threatened all the way.
1
am also suffering from Highblood (sic) Pressure and he kept on
threatening me. I had lost concentration at work.
My
biggest pain is my children that he threatened to kill with his gun.
I
request police investigations into the matter as
I
felt threatened and my life is not
the
same
since he arrived into (sic) my life
and the doctors (sic) are on my (illegible) that my Higblood is not
going down, what is happening
in my life.
I
tried to obtain the Protection Order
but
the office was closed. I request
the
court to order him to
move
out of
my life to save me.
That is all I can state. (Accentuation
added)
[8]
The plaintiff claims for unlawful arrest and
detention and malicious prosecution. The defendants oppose the claims
and deny any
liability on the facts of the case. The result is that
the trial court is called
upon to decide
the issues of merits and quantum of damages.
[9]
The judgment will be structured further as
follows:
1.
The facts that are common cause, undisputed and
proven.
2.
The claims and the defence.
3.
The issues to be adjudicated and the onus.
4.
The law on domestic violence.
5.
The law on arrest, detention & prosecution.
6.
The trial.
A.
The case for the defendants.
The
viva voce
evidence
of the following witnesses:
i.
Sergeant Mkhwanazi (The officer that effected the first arrest on 1
April 2021).
ii.
Captain Mokoena (The officer that effected the second arrest on 3
April 2021).
iii.
Ms. Mahlakoane (The prosecutor that prepared the case for the first
appearance on 6 April
2021).
Other evidence:
iv.
Some summaries of the court proceedings that caused the detention of
the plaintiff from
6 April 2021 until the release of the plaintiff on
13 April 2021 and the further progress of the case.
B.
The case for the plaintiff.
i.
The evidence of Fako Phillip Cbetane.
7.
Conclusion; the facts and the law.
8.
Order.
FACTS
COMMON CAUSE, UNDISPUTED AND PROVEN
[10]
The
Plaintiff was first arrested on 1 April 2021 and released the same
day. He was not detained at all (he was never placed in a
police cell
or detention facility); it was just the formality of arrest that
happened and the process was then immediately followed
by a release
on warning on a so-called SAPS 496 form.
[10]
[11]
The plaintiff was warned on 1 April 2021 to stay
away from the complainant, that she does not want to have any contact
with him
and not to interfere with the investigation of the case. The
law pertaining to domestic violence in South Africa was explained to
him. He is a Lesotho citizen.
[12]
It is undisputed and proven beyond any doubt that
the complainant feared for her life and that of her family as result
of the threats
and conduct of the plaintiff alleged.
[13]
The plaintiff admitted unequivocally that he got
arrested the second time because; as he put it, he went to the
brother of the complainant
to explain to him that the complainant is
not sleeping at home anymore. The brother of the complainant and the
plaintiff had a
conversation, and it was decided between them that
the plaintiff must go to the manager of Shoprite where the
complainant was employed:
"Because the brother informed me to
request the manager to bring us together."
[14]
The above shows a disrespect for the right of the
complainant to decide her fate and her privacy. Two men took a
decision as if
she does not have any recognition under the
Constitution of the Republic of South Africa, 1996 as a human
being in her own right.
[15]
The
plaintiff also disregarded the verbal warning of Sergeant Mkhwanazi
not to interfere with the investigations and stay away from
the
complainant. It will be shown later that he admitted this in court
and apologized for this.
[11]
[16]
The plaintiff was again arrested on 3 April 2021
and detained until 6
April
2021,
when the plaintiff first appeared in court. He was arrested because
the manager of the shop where the complainant was employed
reported
to the police: "a male that was fighting a lady". It was
proven beyond doubt that the manager reported to Captain
Mokoena that
the plaintiff was "chasing" the complainant in the
shop and she had to be locked into a room for her
safety.
[17]
The plaintiff was brought before a court within 48
hours, considering the public holidays at the time. This was on 6
April 2021.
He was not released nor was an application for bail
entertained.
[18]
The plaintiff was at all times from the first
appearance on 6 April 2021 represented by a legal representative
appointed by Legal
Aid: South Africa. He did not initiate a bail
application on 6 April 2021
as was his
right to do.
[19]
As
indicated; the plaintiff is a Lesotho citizen and also went by the
name of Thobi Phillip Mokoena.
[12]
This
complicated his release.
[20]
The
matter was remanded to 9 April 2021 to verify the passport of the
plaintiff and then to 12 April 2021 for the address referred
to
hereunder to be confirmed. The facts show that the postponement of
the hearing of the application for the release of the plaintiff
at
this stage was under section 50(6)
[13]
of the CPA. The presiding officer, on reading of the transcribed
record,
also wanted more information in terms of sections 60(2) and (3)
[14]
of the CPA in order to apply his mind to the release of the
plaintiff.
[21]
The plaintiff was residing with the complainant at
the place that she rented. She was so fearful of him that she was
willing to
move out of the place and reside where he could not find
her. She made it clear to the police that the plaintiff may not know
her
whereabouts and where she took up residence after the 1
st
of April 2021.
[22]
During
the court proceedings and according to the transcribed records of
said proceedings a so-called "alternative address"
whereto
the plaintiff could be traced should he be released was, lawfully so,
demanded.
[15]
The
plaintiff was not certain of the address and the investigating
officer had to search for the place (the home of the sister of
the
plaintiff) and confirm the address for purposes of the bail
application. The investigating officer brought the sister to court
on
13 April 2021 and he was immediately released on bail when she
confirmed the address.
[23]
It is crucial to take cognizance of the
transcribed record of the proceedings as a whole wherein the
magistrate among others remarked
that:
Court: Okay are there any
other reasons why you did not want to grant him bail? Is he a threat
to the witness?
Mr.
Mkhwanazi: Actually, we issued to him a form 6 (sic) before and
seemingly he went
back to the
complainant, before the appearance.
Court: So, you will be
kind to him?
Mr.
Mkhwanazi: So, the other people who, who, the
complainant complained to,
I mean to
the other police officers and then we cancelled
the SAPS 4 and 6 (sic) and helping him in ...(indistinct)
Court: Okay, so he is, he
is to blame for that one. No, it is fine, let me, I will just, if we
can confirm the address then and
the sister then we can take it from,
but you must understand Mr Fako, Mr Phillip that this type of offence
is very serious. If
the investigating officers want me to keep you
there, I will keep you in custody. You understand?
Accused:
Yes
Court:
Because they have said to me, he has been kind to you by issuing out
496, which means you were out. And then the complainant
complains
which means there is a real threat that you do not want to listen or
to adhere to what,
does she have a
protection order against
him?
Accused: Ja, I am very,
very sorry My Lord. I am very sorry.
Court: You must not be
sorry for me, you must do the right thing at home, you understand.
You _get out and we give you bail. you killed that lady then. then
we have made a mistake here.
You understand? (Accentuation added)
Accused:
Yes
Court: Because
gender-based violence is very serious here.
Accused: Okay
Court:
You are a bit reluctant that we because I, what there actually
is no need for me to
get
Sergeant
Mkhwanazi
here
to
because
I
could
have
made
a
decision
in
my
own...
(intervenes)
Accused:
Okay
Court:
And keep you in custody. But I want to give you a second chance to
see if you are going to resolve that because you guys
make the work
difficult for the police in this way. Because we have to be careful
about what we are doing from the bench, and from
the investigating
officers.
[16]
Further:
Court: Sorry man, you
must not do that. You are putting us under pressure here because the
courts are bound to look serious into
gender - based violence cases.
Understood? lam not even supposed to entertain this, I am just
supposed to postpone it until the
investigation officers is here. But
I am trying to be lenient to you.
CASE
POSTPONED UNTIL 13 APRIL 2021.
[17]
[24]
On 13 April 2021 the plaintiff was released on
R300-00 bail. The matter was remanded
to 14
May 2021. On 14 May 2021 the matter was remanded to 31 May 2021 for
further investigation.
[25]
On 31 May 2021 the matter was struck off the roll
by the court because the docket was not at court.
[26]
The
plaintiff was again summoned for court but the matter was mediated
between the parties and the charges withdrawn on that basis.
The
docket depicts that the decision to withdraw the case was due to
successful mediation in January 2023; not due to a lack of
evidence
or evidence to support prosecution
.
[18]
[27]
The
plaintiff was subpoenaed to appear on 3 November 2022 in
Phuthaditjhaba Court A on a charge of "assault by threat".
[19]
This is correct given the allegations and no malice or fault can be
ruled to have occurred.
[28]
To conclude for completeness; the Plaintiff was
detained for a period of 10 (ten) days and prosecuted for
approximately
2 (two) months. The detention
and the prosecution were explained
by the
facts above. This brings the law to the fore. I will first depict the
claims and
the defence for perspective.
THE
CLAIMS AND THE DEFENCE
[29]
The
plaintiff claims for unlawful arrest and detention and malicious
prosecution. The defendants oppose the claims and deny any
liability
on the facts of the case. The result is that the trial coutt is
called upon to decide the issues of merits and quantum
of
damages:
[20]
AD CLAIM 1: UNLAWFUL
ARREST AND DETENTION:
1.
Payment of the sum of R500 000.00;
2.
Interest at the rate of 7% per annum from date of
summons until date of payment;
3.
Cost of suit;
4.
Further and/or alternative relief.
AD CLAIM 2: MALICIOUS
PROCEEDINGS:
1.
Payment of the sum ofR150 000.00;
2.
Interest at the rate of 7% per annum from date of
summons until date of payment;
3.
Cost of suit;
4.
Further and/or alternative relief.
[30]
The particulars of claim of the plaintiff and defendants were amended
by agreement between the parties and
on order of the court. The
defendants specifically relied on section 40(1)(b) of the CPA to
defend the arrest:
7.
AD PARAGRAPH 9 THEREOF
9.1
On the 1st of April 2021 the Plaintiff was
arrested by Sergeant Mkhwanazi for intimidation and released on
warning (SAPS 496) without
being detained.
9.2
The
Plaintiff defied the warning (SAPS 496) and continued to intimidate
the complainant. On Saturday the 03rd of April 2021 Captain
Mokoena
was called to the complainant's workplace where the Plaintiff was
intimidating and threatening the Complainant, the Plaintiff
was
arrested on the scene for intimidation, common assault, and malicious
damage to prope1ty, which arrest is lawful and justifiable
in terms
of
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[21]
[30]
The facts of the case that were adduced do however
invoke
sections 40(1)(q)
of the CPA and
section 3
of the DVA.
Although not pleaded
I will regard
it as the law to be applied. The law cannot be
ignored because the specific legislation was not quoted when the
facts direct to
it.
THE
ISSUES TO BE ADJUDICATED AND THE ONUS
[31]
The arrest of the plaintiff without a warrant is
not in dispute. The parties were agreed that the onus is on the first
defendant
to prove on a balance of probabilities that the arrests and
detention were lawful. The plaintiff has the same onus to prove that
there was malicious prosecution.
THE
LAW AND DOMESTIC VIOLENCE
[32]
I now return to the striking words of Justice
Sachs in S
v Baloyi supra.
I
apologize for the lengthy quote, but it is clearly necessary to
educate the plaintiff and remind legal practitioners that deal
with
cases of this nature what the scourge is that causes harm to women in
South Africa and what the law demands.
The constitutional
requirement to deal effectively with domestic violence.
[11]
All crime has harsh effects on society. What distinguishes dome tic
violence is its hidden, repetitive character
and its immeasurable
ripple effects on our society and, in particular, on family life. It
cuts across class, race, culture and
geography, and is all the more
pernicious because it is so often concealed and so frequently goes
unpunished. The Law Commission.
supporting the need for appropriate
legislation to reduce and prevent family violence. invoked the
following quotation from a document
drafted by the US National
Council of Juvenile and Family Court Judges:
"Domestic and
family violence is a pervasive and
frequently lethal
problem
that challenges society at every level. Violence
in families is often hidden from view and devastates its victims
phvsically, emotionally.
spiritually. and financially. It threatens
the stability of the family and negatively impacts on all family
members. especially
the children who learn from it that violence is
an acceptable way to cope with stress or problems or to gain control
over another
person. It violates our communities safety. health,
welfare. and economies by draining billions annually in social costs
such as
medical expenses, psychological problems, lost productivity
and intergenerational violence."
The imperative for such
legislation, as noted by the Law Commission derives from section
12(1) of the Constitution, which reads:
"Everyone has the
right to freedom and security of the person. which includes the
right-….
(c)to
be free from all forms of violence from either
public or private sources; ...
"
The specific inclusion of
private sources emphasizes that serious threats to security of the
person arise from private sources.
Read with section 7(2). section
12(1) has to be understood as obliging the state directly to protect
the right of everyone to be
free from private or domestic violence.
Indeed, the state is under a series of constitutional mandates
which include the obligation to deal with domestic violence: to
protect
both the rights of everyone to enjoy freedom and security of
the person and to bodily and psychological integrity. and the right
to have their dignity respected and protected. as well as the
defensive rights of eve1yone not to be subjected to torture in any
way and not to be treated or punished in a cruel. inhuman or
degrading way.
[12] In my view, domestic
violence compels constitutional concern in yet another important
respect. To the extent that it is systemic,
pervasive and
overwhelmingly gender-specific,
domestic violence both reflects
and reinforces patriarchal domination. and does so in a particularly
brutal form.
As Joanne Fedler points out:
“
Intrafamily
offences include arson. assault, assault with intent to do grievous
bodily harm, threats to do bodily injury. obstructing
justice,
cruelty to children, incest. kidnapping, murder, culpable homicide,
rape, forced prostitution, unlawful entry on to property,
malicious
damage to property, stalking, theft, robbery, unlawful possession of
a firearm, involuntary sodomy, extortion, blackmail
and sexual
assault.'·
The non-sexist society
promised in the foundational clauses of the Constitution, and the
right to equality and non-discrimination
guaranteed by section 9. are
undermined when spouse-batterers enjoy impunity. In the words of
White J in
United States v Dixon et al:
'·Realisation
of the scope of domestic violence ... ‘the
single
largest cause of
injury
to
women.' ...
has come with
difficulty. and it has come late."
The
ineffectiveness of the criminal justice system in addressing family
violence intensifies the subordination and helplessness
of the
victims. This also sends
an
unmistakable message to the whole of society that the daily trauma of
vast numbers of women counts for little. The terrorization
of the
individual victims is thus compounded by a sense that domestic
violence is inevitable. Patterns of systemic sexist behaviour
are
normalized rather than combatted. Yet it is precisely the function of
constitutional protection to convert misfortune to be
endured into
injustice to be remedied.
[17]
The
ambivalence of the victim and the reluctance of law enforcement
officers to 'take sides' in family matters, coupled with the
intimate
and potentially repetitive character of the violence, is highly
relevant to the creation of a special process for the
issuing of
domestic violence interdicts...
(Accentuation added)
[33]
This is what the legislation decreed at
the
time of the arrests in April 2021
and
that is the law:
1.
The Domestic Violence Act:
3.
Arrest
by
peace
officer
without
warrant
and
assistance
to complainant.-
(1) A peace officer
who
attends the scene
of an incident of domestic violence,
may
without a warrant,
arrest any respondent who such peace officer
reasonably suspects
of having committed an act of
domestic violence which constitutes an offence in terms of
any
law.
(2) A peace officer
must.
without a warrant,
arrest any respondent
at the scene of an
incident of domestic violence
who they on
reasonable
grounds
believe of having committed an act of domestic
violence
which constitutes
an offence containing an element of
violence
against a complainant. (Accentuation added)
2.
An act of domestic violence is described in
section
1
of
the Domestic Violence Act as:
"domestic violence"
means
(a)
physical abuse;
(b)
sexual abuse:
(c)
emotional, verbal or psychological abuse;
(d)
economic abuse;
(e)
intimidation;
(f)
harassment:
(fA)
sexual harassment;
(fB)
related person abuse;
(g)
spiritual abuse;
(h)
damage to property;
(hA) elder abuse;
(hB)
coercive behaviom;
(hC)
controlling behaviour;
(hD) to
expose a child to domestic violence;
(i)
entry
into
the
complainant's-
(i)
permanent or temporary residence without their
consent, where the parties do not share the same residence; or
(ii)
workplace or place of study. without their
consent. where the parties do not
share
the same workplace or place of study: or
(j)
any
other
behaviour
of
an
intimidating,
threatening,
abusive.
degrading. offensive or humiliating nature
towards a complainant, where such conduct
harms,
or inspires the reasonable belief that harm may be caused to the
complainant;
(Accentuation added)
3.
The Criminal Procedure
Act:
Section
40(1)(a)
decrees that a peace officer
may without warrant arrest any person who commits or attempts to
commit any offence in his presence;
Section
40(1)(b)
permits that a peace officer
may without 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;
Schedule
1
was amended by Act 12 of 2021 with
effect from 25 January 2022. The arrests in the instance were on 1 &
3 April 2021. The offences
applicable to section 40(1)(b) on the
facts of this case were thus:
SCHEDULE 1
(Sections 40 and 42)
Assault,
when a dangerous wound is inflicted, malicious injury to property.
Any offence, except the offence of escaping from lawful
custody in
circumstances other than the circumstances referred to immediately
hereunder,
[22]
the punishment
wherefor may be a period of imprisonment exceeding six months without
the option of a fine.
Since 25 January 2022
it is assault:
(a) when a dangerous
wound is inflicted; (b) involving the infliction of grievous bodily
harm; or (c) where a person is threatened-(i)
with grievous bodily
harm; or
(ii) with a firearm or
dangerous weapon, as defined in section 1 of the Dangerous Weapons
Act, 2013 (Act No. 15 of2013).
Section
40(1)(q)
of the CPA provides for arrest
without a warrant in that a peace officer may without warrant arrest
any person who is reasonably
suspected of having committed an act of
domestic violence as contemplated in section (1) of the
Domestic
Violence Act, 1998
, which constitutes an offence in
respect
of which
violence is
an
element.
The facts here show that
violence was an element in both cases. To reiterate:
" ...
he
threatened me by saying he will kidnap me and nobody will find me. He
will find people who will kill me and throw my body away.
I explain
to him that he should leave my room."
When
at my brother's place Bobby at Bluegumbush he went further by
threatening
me
by using the same words that he will kidnap me and make me vanish
forever. He also said that he will kidnap my children (sic)
MP
[23]
who is 8 years old. I felt threatened all the way.
I
am also suffering from Higbblood (sic) Pressure and he kept on
threatening me. I had lost concentration at work.
My
biggest pain is my children that he threatened
to
kill with his gun."
[34]
If the police are not allowed to arrest and detain
a suspect on the above then when can they arrest? When may the
prosecutorial
authority then institute prosecution
if
not here? The
Domestic Violence Act 116 of 1998
decrees in
section 3
that: "(2) A peace officer
must,
without a warrant, arrest..."
[35]
To threaten the complainant with murder of her and
her family and then confront her at her place of employment after she
made it
clear that she does not
want
to have
any
contact
with
him
and
fear
for
her
life; is beyond
any doubt an act of domestic violence which
constitutes an offence containing an element of violence. The
violence or probability
thereof was so severe that, according to the
information available to the arresting officer, she had to be locked
in a room for
her safety. The manager deemed it necessary to call for
the assistance of the police. This was not an innocent peaceful visit
by
the plaintiff. The individual that summoned the police clearly did
not hold the opinion that their private security would be the
appropriate authority to deal with the situation.
[36]
But
the
more
general
aspects
of
arrest
are
also
crucial.
THE
LAW ON ARREST, DETENTION AND PROSECUTION
[37]
The principles that guide arrest, detention and
prosecution in South African Jaw were set out in
Ditsele
and Others v Minister of Police and Another
(805/2019;
3131/2019)
[2023]
ZAFSHC
16
(25 January
2023) and
Ditsele and Others v Minister of Police
and Another
(805/2019)
[2023] ZAFSHC
122
(21 April 2023).
[38]
Regarding unlawful arrest
the
Supreme Court of Appeal in
Biyela v
Minister of Police
(1017/2020) [2022]
(1 April 2022) ZASCA, stressed that the decision to a1Test must be
reasonable and rational.
[40]
It is a legal fact that the decision to arrest and
to prosecute does not demand prove of the case beyond
reasonable doubt or any doubt at the time.
The
Biyela
-
case
supra noted that the standard of a reasonable suspicion for arrest is
remarkably low.
[34]
The standard of a reasonable suspicion is very
low. The reasonable suspicion
must be more
than a hunch; it should not be an unparticularized suspicion. It must
be based on specific and articulable facts or
information. Whether
the suspicion was reasonable, under the prevailing circumstances. is
determined objectively.
[35]
What is required is that the arresting officer
must form a reasonable suspicion that a Schedule I offence has been
committed based
on credible and trustworthy information.
Whether that information would later, in a court
of law, be found to be inadmissible is neither here nor there for the
determination
of whether the arresting officer at the time of arrest
harboured a reasonable suspicion that the arrested
person
committed
a Schedule 1 offence.
[36]
The arresting officer is not obliged to arrest
based on a reasonable suspicion because he or she has a discretion.
The discretion
to arrest must be exercised properly...
[41]
Section
38
of
the
CPA
prescribes
the
methods
of
securing
attendance
of accused in court:
(1)
Subject to section 4(2) of
the
Child
Justice Act, 2008 (Act
No.
75 of 2008),
the methods
of securing the attendance of an accused who is eighteen years or
older in court for the purposes of his or her trial
shall be arrest.
summons, written notice and indictment in accordance
with
the relevant provisions of this Act.
[Sub-s. (1) substituted
by s. 4 of Act No. 42 of 2013.]
[42]
Section 39 of the CPA prescribes the manner and
effect of arrest:
(1)
An arrest shall be effected with or without a
warrant and, unless the person to be arrested submits to custody, by
actually touching
his body or, if the circumstances so require, by
forcibly confining his body.
(2)
The person effecting an arrest shall, at the time
of effecting the arrest or immediately after effecting the arrest,
inform the
arrested person of the cause of the arrest or, in the case
of an arrest effected by virtue of a warrant, upon demand of the
person
arrested
hand him a copy of the
warrant.
(3)
The effect of an arrest shall be that the person
arrested shall be in lawful custody and that he shall be detained in
custody until
he is lawfully discharged or released from custody.
[43]
Before now and as far back as on 19 November 2010,
Harms JP, Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA in the
matter of
Minister of Safety and
Security v Sekhoto and Another
2011 (1)
SACR 315
(SCA) concluded that section 40 of the Criminal Proceduree
Act 51 of 1977 is not unconstitutional. The parameters or
"jurisdiction"
for a lawful arrest are:
To prove that the arrest
was lawful, it must be proven that:
(i)
the arresting officer was a peace officer;
(ii)
the arresting officer entertained a suspicion;
(iii)
that the suspect to be arrested committed an
offence referred to in schedule 1;
(iv)
the
suspicion rested on reasonable grounds.
[24]
[44]
The
Sekhoto - case categorically denounced a fifth jurisdictional
requirement that arrest will be unlawful if a less invasive option
exists such as summons or written notice.
[25]
[45]
In defending a claim for unlawful arrest, the four
jurisdictional facts set out in section 40(1)(b) or, here also,
40(l)(q) of the
CPA must be pleaded. It was done in the instance as
will be pointed out hereunder. The facts were pleaded. The facts also
cause
the DVA to become applicable as
was
pointed out above.
[46]
The Sekhoto - case ruled that once the required
jurisdictional facts were present the discretion whether to arrest
arose. Hanns
JP set some margins; not a
numerus
clausus,
to the reasonable suspicion -
discretion.
1.
Peace officers are entitled to exercise this
discretion as they see fit, provided they stay within the bounds of
rationality.
2.
This standard is not breached because an officer
exercised the discretion
in a manner other
than that deemed optimal by the court.
3.
The standard is not perfection, or even the
optimum, judged from the vantage of hindsight, and, as Jong as the
choice made fell
within the range of rationality, the standard is not
breached.
4.
It
is clear that the
power to arrest is to be exercised
only for
the purpose of bringing the suspect to justice; however, the arrest
is but one step in that process.
5.
The arrestee is to be brought to court as soon as
reasonably possible, and the authority to detain the suspect further
is then within
the discretion of the court.
6.
This discretion is subject to a wide-ranging
statutory structure and, if a peace officer were to be permitted to
arrest only when
he or she was satisfied that the suspect might not
otherwise attend the trial, then that statutory structure would be
entirely
frustrated. To suggest that such a constraint upon the power
to arrest is to be found in the statute by inference is untenable.
7.
The arrestor is not called upon to determine
whether or not a suspect ought to be detained pending trial; that is
for the court
to determine, and the purpose of an arrest is simply to
bring the suspect before court so as to enable it to make that
determination.
8.
The
enquiry to be made by the peace officer is not how best to bring the
suspect to trial, but only whether the case is one in which
that
decision ought properly to be made by the court. The rationality of
the arrestor's decision on that question depended
upon
the particular facts of the case, but it is clear that in cases of
serious crimes, such as those listed in Schedule 1 or domestic
violence, an arrestor could seldom be criticized for arresting a
suspect
in
order
to
bring
him
or
her
before
court.
[26]
[47]
The Biyela- case confim1ed
the
above and ruled that the evidence or suspicion considered by the
officer need not be based on information that would subsequently
be
admissible in a court of law. Information regarded by the arresting
officer may
be hearsay evidence.
[48]
The party who alleged the infringement of a
constitution.al right bears the onus of establishing it. Furthermore,
a party who attacked
the exercise of a discretion where the necessary
jurisdictional facts were present, bears the onus
of prove.
[49]
Regarding
detention
Kruger
[27]
made
the
following clear:
The
court's
duty
to
obtain
information
(section
60(3)) -
In S
v Mpofana
1998
(1) SACR 40
(Tk)
the accused
was
refused
bail
because
inter
alia
an
identification parade had not yet been held. In a renewed
application, more than 30 days later, it appeared
that
still no identification parade had been held. On appeal, the court
held that the trial court should
have
made enquiries
in terms
of section 60(3) into
the
reasons
why there had been no parade. The
case was referred back to the magistrate for that reason (at 47b-c).
A similar case where the
court should have actively investigated the
matter itself, is
S
v
Swanepoel
1999 (1) SACR 311
(O). ln
bail proceedings the court should not call witnesses under section
186 but should order the parties to place the evidence
before the
court (S
v Mdhluli
2020
(1) SACR 98
(LP)). The magistrate should
set
out the information or evidence sought in a simple, frank, honest and
straightforward way (S
v Motsi
2023
(1) SACR 218
(WCC) par [17]).
DPP's
duty
-
The
prosecutor has a duty to place before the court any information
relevant to the exercise of the discretion
with regard to the granting or refusal of bail and, if bail
is granted, any appropriate conditions
attaching thereto. In appropriate cases the state could be held
liable
if
bail was wrongly
granted
(Carmichele
v
Minister
o(Safety and
Security and Another (Centre
for
Applied Legal Studies Intervening)
[2001] ZACC 22
;
2002
(1) SACR 79
(CC) paras [72], [81)- [83]).
(Accentuation
added)
Detention
after first appearance in court
-
A remand order by a magistrate does not
necessarily
render
subsequent
detention
lawful
(De
Klerk
v
Minister
of Police
2020
(1) SACR 1
(CC) par [62]). If the arresting officer subjectively
foresees the mechanical remand after the first court appearance and
reconciles
her or himself to this possibility in proceeding to
arrest, the Minister will be liable in damages for detention after
the court
remand if the arrest was unlawful
(De
Klerk
par [86]).
Arrest
and detention-Both
terms are used in
the
Criminal Procedure Act (see
, for instance, section
50(1))
and
are
treated
separately
in
the
Constitution
(in C 35(1)
and (2) respectively). Although the dividing line between them is
sometimes vague, there is indeed a clear distinction
between arrest
and detention. The first is a narrow and specific term which refers
to the initial deprivation of liberty with intent
to charge; the
latter is a fairly wide generic term which relates to the continued
deprivation of freedom. The one usually follows
the other. Someone
who has not been arrested but is questioned in connection with an
offence, as either a suspect or source of
information, can be called
a "detained person". Such a detained person is free to
withdraw but doing so could possibly
lead to his or her arrest if he
or she is a suspect. Prospective
witnesses
can be detained
in terms of section 185.
Arrest and detention were analyzed in
Mahlongwana
v Kwatinidubu Town Committee
1991 (1)
SACR 669
(EC) and distinguished
from
each other where municipal police effected a
lawful arrest for drunkenness ("arrest") but then locked up
the arrestee
in a municipal
van overnight
("detention")
in
contravention
of the
duty under section 50 that an arrested person "shall as soon as
possible be brought to a police station". Continued
detention by
virtue of a court order does not automatically render the detention
lawful
(Minister of Safety and Security
v Tyokwana
2015 (1) SACR 597
(SCA) par
[38]).
The
judgments
in
Tyokwana
were
analysed
in
De
Klerk
v
Minister
of Police
2020
(1) SACR 1
(CC) pars [40]- [41]).
[50]
Malicious
prosecution
is
characterized
by
malice or intend to do harm. Whether a prosecution
is
wrongful
or
unlawful
depends
on whether
there
was a reasonable and probable cause coupled with the
animus
iniuriandi
of
the defendant
in
instigating, initiating
or
continuing it.
[28]
1.
Under Section 179 of the Constitution, 1996 and the
National
Prosecuting Authority Act, 1998
, the National Prosecuting Authority
has the power to institute criminal proceedings on behalf of the
State and to carry out any
necessary functions' incidental to
institution of criminal proceedings.
Section 179
of the Constitution
places the decision to prosecute within the sole power of the
Prosecuting Authority.
2.
The
Directives
or
Code
of
Conduct
[29]
promulgated
in
terms
of
the
National
Prosecuting Act, 1998, demand that prosecutors shall, among others:
i.
Perform their duties fairly, consistently and
expeditiously.
ii.
Perform their duties fearlessly and vigorously in
accordance with the highest standards of the legal profession.
iii.
They
shall
give
due
consideration
to
declining
to
prosecute, discontinuing criminal proceedings
conditionally or unconditionally or diverting criminal cases from the
formal justice
system; particularly those involving young persons,
with due respect for the rights of suspects and victims, where such
action
is appropriate.
iv.
ln the institution of criminal proceedings;
proceed
when a case
is well-founded upon evidence
believed to be reliable and admissible, and not continue a
prosecution
in the absence of such
evidence.
v.
They must ensure that, throughout the course of
the proceedings,
the case shall be firmly
but fairly and objectively prosecuted.
vi.
They must consider the views, legitimate interests, and possible
concerns of victims and
witnesses when their personal interests are,
or might be, affected, and endeavor to ensure that victims and
witnesses are infonned
of their rights, especially with reference to
the possibility, if any, of victim compensation and witness
protection.
vii.
They shall safeguard
the
rights
of accused
persons, in line with
the
law and applicable international instruments as required in a fair
trial.
viii.
A prosecutor must examine proposed evidence to ascertain if it has
been lawfully or constitutionally
obtained and shall refuse to use
evidence which is reasonably believed to have been obtained through
recourse to unlawful methods
which constitute a grave violation of
the accused person's human rights and particularly methods which
constitute torture or cruel
treatment.
3.
In Kubeka v The Minister of Police and Another
(63675/2016) [2022] ZAGPPHC
298
(4 May
2022) Collis J
nlled
and
confinned
that:
[30] ... To succeed
with a claim for malicious prosecution a claimant must allege and
prove that (i) the defendants set the
law in motion, they instigated
and instituted the proceedings; (ii) they acted without reasonable
and probable cause; (iii) they
acted with malice, and (iv) the
prosecution failed.
4.
Okpaluba,
[30]
after scrutiny of the South African law, case law and international
principles,
emphasized
that:
... the requirement of
reasonable and probable cause plays such a central role in an action
for malicious prosecution that the success
of such an action depends
largely on there being a lack of reasonable and probable cause for
the prosecution among the other three
requirements. The presence or
absence of reasonable and probable cause more or less dictates
whether or not there is any basis
for the prosecution and leads the
way to the inquiry as to whether there was malice or improper purpose
on the part of the prosecutor.
Again, whether or not the defendant
lacked reasonable and probable cause to instigate, initiate or
continue the prosecution depends
ultimately on the facts and
information carefully collected and objectively assessed, on which
the prosecutor based his/her belief
that the plaintiff was guilty;
it
is not the probability that those facts would secure a conviction.
Yet the prosecutor is faced with the difficulty in that his/her
conduct in this regard is subject to both the subjective and
objective tests
. In evaluating the material that is available to
him/her arising from the investigations. the objective sufficiency of
the material
must be considered by the prosecutor and assessed in the
light of all the facts of the particular case. In effect, his/her
belief
must be honestly held and founded on reasonable grounds, such
that would lead a reasonable person in his/her position to hold a
similar belief. It essentially requires the plaintiff to establish a
negative, rather than for the defendant to prove the existence
of
reasonable and probable cause. (Accentuation added)
SUMMARY
AND EVALUATION OF THE EVIDENCE
[51]
I regress to depict the evidence as it was adduced
in the trial for the sake of completeness.
[52]
The trial, among others, consisted of the
viva
voce
evidence of Mr. Fako Phillip
Chetane (plaintiff), Sergeant Mkhwanazi (arresting officer on 1 April
2021), Captain Mokoena (arresting
officer on 3 April 2021) and Ms.
Mahlakoane (the prosecutor that prepared the case for the first
appearance in court). The contents
of the docket, charge sheet and
transcribed record of the court proceeding in the case also formed
part of the evidence.
[53]
THE
CASE FOR THE DEFENDANTS
[31]
I
SERGEANT MKHWANAZI
1.
Sergeant Mkhwanazi is
a
detective in the South African Police Service with 18 years'
experience and stationed
at Phuthaditjhaba.
2.
He received information from the complainant that
she was threatened by the plaintiff
that he
will kill her and kidnap her children. The girlfriend/complainant
realised the situation when they quarrelled and she ran
away.
Plaintiff grabbed her but she managed to
get
free but her bag remained with the plaintiff after the scuffle. She
was on her way to work.
3.
The complainant
appeared
very
frightened
and
they
had
to
calm
her down
at this time when she was at the police station. She related to him
what happened and also what happened on the 10
th
of March 2021. They went with her to the place
where she resided with the plaintiff. They expected to find the
perpetrator there.
They could not find him. Sergeant Mkhwanazi left a
message with someone on the premises for the plaintiff to report to
the police
station.
4.
The room where they rented was locked. The
complainant tried looking for the key but she could not locate it.
Thereafter they took
the complainant back to her work because she was
still on duty. She was dressed in her Shoprite uniform.
5.
A case was opened and registered.
6.
On the same day, 1 April 2021, he received a call
and the person introduce himself as Tobi Mokoena. The person
indicated he received
information that the police and complainant
were at the place they rented. Sergeant Mkhwanazi then realized who
was calling. According
to the statement in the docket the suspect is
one Tobi Phillip Mokoena. Sergeant Mkhwanazi informed him that he
must report to
the police station and report to him. He also informed
him of the charge against him.
7.
Sergeant
Mkhwanazi
indicated that the plaintiff was very cooperative
when he arrived at their offices. He is a Lesotho citizen. On his
arrival he informed
him of the charges against him. According to the
Sergeant the plaintiff did not
grasp that
what transpired that morning was
a crime in
this country. Sergeant Mkhwanazi explained the law to him. The
plaintiff indicated that he understood and indicated that
he will
abide by the law.
8.
A SAPS
496 form was
issued. This is a form that explains the charges to the accused and
when he is expected to be in court. The plaintiff/
accused was under
arrest but not detained. The contents of the SAPS 496 was explained
and he was warned not to have any contact
with the complainant. The
accused was further informed that the court will provide him with
further formal conditions. The date
to appear in court was the 15th
of April.
9.
The reaction of the plaintiff was to promise that
he will not have contact with the complainant or interfere with the
investigations.
10.
Since the plaintiff was in possession of the key
he asked if he could fetch his clothes and move to another place.
Sergeant Mkhwanazi
phoned the complainant at work and they then met
with the plaintiff and went to the room where they rented. The
complainant said
seeing that the plaintiff knows where she resides,
she would rather take her property and move elsewhere. He took her to
a village
known as Bollata. She made it clear that she did not want
for the plaintiff to know where she resides. He left the complainant
there.
11.
He
did
explain
what
the
consequences
would
be
should
the
plaintiff not
comply with the conditions.
Sergeant Mkhwanazi emphasized that he explained to the plaintiff that
he must not "trouble"
any witnesses and the complainant. He
explained that he can end up in custody. During cross examination
the witness
reiterated
that he warned
the
plaintiff
not to contact
the
complainant.
He did
this
to
prevent
the
plaintiff
from getting into further trouble.
12.
Sergeant Mkhwanazi was under the impression that
he is dealing with a dangerous man with a gun.
13.
Sergeant Mkhwanazi
was a
very good witness. The credibility of his evidence and the
correctness thereof cannot be faulted.
II
CAPTAIN MOKOENA
1.
Captain Mokoena is a seasoned policeman with 11
years' experience in the South African Police Service. He arrested
the plaintiff
on 3 April 2021.
2.
On the day he was on duty and on standby over the
weekend. He received a message from the charge office informing that
there is
an incident that took place at Shoprite, Setsing,
Phuthaditjhaba. The complaint was about "a male that was
fighting a lady".
The manager of Shoprite reported the
complaint. The manager called Warrant Officer Matopo that conveyed
the message to the Captain.
3.
Captain Mokoena and Warrant Officer Matopo
proceeded to Shoprite. At Shoprite they located the manager in his
office. Captain Mokoena
was not wearing a uniform
but
Matopo was in uniform.
4.
They introduced themselves to the manager and he
explained the reason for summoning the police. As they spoke there
was a male person
standing outside the office. The manager introduced
them to the person and he indicated that it is the man that caused
the complaint.
5.
The manager explained that he saw the plaintiff
chasing the lady inside the shop. Fortunately, they managed to rescue
the lady and
locked her inside an office for her safety.
6.
Captain Mokoena requested to see this lady who was
mentioned.
On meeting with the lady in the
cash office he introduced himself to her. Captain Mokoena noticed
that it looked as if she had been
crying. He then asked what
happened. She explained the violence perpetrated by the plaintiff as
depicted in her statement and the
manager. She further explained that
not long ago she opened a case against him. He realised it was the
case wherein a SAPS 496
was issued and arrested the accused.
7.
He applied the law in relation to domestic
violence. From experience he knows how sensitive these kinds of cases
are.
He realized the lady's life was in
danger.
8.
The Captain made very sure of his facts before he
arrested the plaintiff by phoning around to obtain evidence on the
history of
the case. On a question by counsel for the plaintiff the
Captain indicated that the complainant's life was not in danger by
the
time they arrived because she was locked in an office for her
safety. He was not there when the incident started. The manager of
Shoprite said the accused was chasing the lady around and they
salvaged her from him.
9.
The demeanour of the plaintiff when the police
arrived at the shop was that of "a person
who
had
been in a fight. He is busy calming
down".
10.
Captain Mokoena was also a good witness. His
evidence cannot be faulted.
III
MS MAHLAKOANE
11.
The witness is a prosecutor based at Trompsburg.
She worked at the magistrate's court at Phuthaditjhaba previously.
When the matter
of Mr. Chetane came to court she was at
Phuthaditjhaba. On the 6
th
of April 2021 the docket came as a first
appearance before court. She read the docket and the statement of the
complainant. Mr.
Chetane, according to the statement, threatened the
complainant to an extend of killing her and her children. She decided
the accused
should be charged with assault by threat.
12.
After reading the docket and making a charge sheet
she took it to court. She handed it over to the prosecutor in court.
She was
an aspirant prosecutor. She was not involved in the matter
afterwards at all. The fact that the matter was struck of the roll
does
not indicate that prosecution has been stopped.
[54]
PLAINTIFF'S
CASE
FAKO PHILLIP CHETANE (THE
PLAINTIFF)
1.
The evidence of this plaintiff concluded the case
for the plaintiff.
2.
The plaintiff, Mr. Fako Phillip Chetane, is a
42-year-old taxi driver. He is a Lesotho citizen that lives and works
in South Africa.
On all accounts
he has a
valid passport to work and live in South Africa.
He
is not married
but has two children born in
2012 and 2018.
3.
The complainant was his
girlfriend
with whom he shared a room.
4.
The plaintiff indicated that he came to meet with
Sergeant Mkhwanazi after "I had differences with my girlfriend.
I did not
know where she went. I woke up and went to work as usual.
While on duty I phoned the landlord to find out if the girlfriend
arrived
at home. The landlord informed me that the lady arrived in
the presence of two detectives they were looking for the key to the
house... "
5.
He phoned the police station and was requested to
report there. He reported later the afternoon and on arrival was
informed that
his girlfriend reported that he is threatening her.
6.
He informed the police that they had a verbal
argument and she left the house. The officer did ask for details and
he explained
what happened. He explained they only had a verbal
argument.
7.
It is the evidence of the plaintiff that Sergeant
Mkhwanazi informed him that the lady indicated that she does not want
to "meet"
with him. She wanted to fetch her belongings at
the house they shared. At that instance Sergeant Mkhwanazi requested
the plaintiff
to accompany him to fetch the lady at her workplace and
get her clothes. The plaintiff complied, the complainant was fetched
and
she collected her clothes.
8.
The plaintiff was then requested to remain
behind
whilst the police
took the complainant to her new residence.
9.
On a question by his counsel if he was given any
documentation the witness confirmed that Sergeant Mkhwanazi gave him
a document
which had a date whereby, he had to appear in court with
reference to the complaint laid by the complainant. He could not
recall
the date that he had to appear in court. The document was
handed over to him
at the police station.
10.
The witness was then asked if he was arrested and
he answered that he was not arrested.
11.
The witness explained that the arrest on the 3
rd
of April was because of the fact that he went to
the brother of the complainant to tell him that she is not sleeping
at their home
anymore. After the conversation with the brother the
witness went to Shoprite where he met the manger. The plaintiff
stated that
he went to Shoprite because the brother told him: "to
request the manager to bring them together".
The reason he went to Shoprite was to fix the issues between himself
and his girlfriend.
12.
After he arrived at the shop he spoke to the
manager. The witness indicated that all that happened is that the
manager said he will
fetch the complainant and then suddenly the
police appeared. He was ordered to leave Shoprite and then arrested.
The rest is common
cause.
13.
The
witness did not
mention why the police was
summoned to
the
shop.
14.
During cross examination the witness admitted that
he had a quarrel with his girlfriend and the policeman said that
after the complainant
took her belongings, he must stay away from
her. He must not follow them. Since the complainant is frightened, he
must not follow
them and that she might return herself.
15.
The
witness was
very selective with his
evidence.
The
witness admitted that he was warned to
stay away from the complainant. He admitted that; against her wishes
and the reprimands of
the police he initiated contact with her. He
got the authorization of her brother to consult with the manager of
the complainant
to resolve their issues. This, with a contempt of the
wishes of the complainant. He is quiet on why the manager deemed it
necessary
to call the police and why the complainant had to be locked
in a room. He did not testify about the fact that he was represented
by a legal representative
since his first
appearance in court. He did not inform the court that an alternative
address had to be supplied to the court where
he will be located and
that he could not give the address and that the police had to confirm
it to be correct. He did not inform the court, as
stands undisputed, that prosecution did not proceed because the case
was mediated.
The matter was removed from the roll because the docket
was not at court and not because of a lack of evidence to prosecute.
He
did not inform the court that his legal representative could at
any time have demanded a bail application but did not. They did
not
oppose the postponements.
CONCLUSION
[55]
It was proven beyond any doubt that the
information
against the plaintiff was
serious and that severe violence was implied. Both
sections 40
of the
Criminal Procedure Act and
section 3
of the
Domestic Violence Act
demanded
the arrest of the plaintiff.
[56]
His detention after his first appearance was not
unlawful. The police and prosecution had to investigate the
citizenship of the
plaintiff, confirm his address, and investigate
the issue of the firearm. The plaintiff operated under an alias in
South Africa.
Sections 50
and
60
of the
Criminal Procedure Act
decreed
the manner in which the police, the prosecutor and the
presiding officer in the circumstances of the case had to deal with
the
case and they complied diligently. He was taken to court within
the prescribed 48 hours and after the information was obtained,
he
was released on bail immediately on 13 April
2021.
The period
between 6 and 13 April
2021 cannot
be described
in any way whatsoever
as illegal
and
unconstitutionally and as extended
and
delayed. It was eight days at the most and to comply with the law.
[57]
The evidence against the plaintiff presented to
the prosecutors was overwhelmingly
primafacie
prove of the crimes he allegedly
perpetrated. The representative of the Office of the Director of
Public Prosecutions had to instigate
and institute prosecution. If
they did not do so they would have recklessly failed in their task.
They did due diligence to their
constitutionally imposed task to in
terms of section 179(4) of the Constitution exercise their functions
without fear, favour or
prejudice. The statement of the complainant
and the conduct of the plaintiff caused reasonable and probable
cause. There was not
an inkling of malice to be detected in any of
the facts proven; in fact, the police, the prosecutor and the court
did all they
could to protect the interest of the plaintiff in the
circumstances of the case and to protect him against his own bad
conduct.
The prosecution as a fact beyond any doubt did not fail.
This is an example of successful alternative dispute resolution that
forms
part of the task of the National Prosecuting Authority.
[58]
The plaintiff, in complete contempt of the
constitutional rights of others and the law of this
country
misbehaved to the extent of criminality and his claims in this case
are unacceptable and cannot be entertained.
[59]
Costs must follow the cause in the instance.
[60]
ORDER
The plaintiffs' claims
are all dismissed on the merits with costs.
M
OPPERMAN J
Appearances
For
plaintiff:
C
Zietsman
Instructed
by:
Loubser
van Wyk Inc.
PRETORIA
c/o
Jacobs Fourie Inc.
BLOEMFONTEIN
For
defendants:
MMopeli
Office
of the State Attorney
BLOEMFONTEIN
[1]
("The
plaintiff''/ "Mr. Chetane")
[2]
The
"CPA"/
Criminal Procedure Act"
;.
[3]
The
"DYA/Domestic
Violence
Act".
[4]
Biyela
v Minister of Police
(1017/2020)
[2022] (1 April 2022) ZASCA at [36].
[5]
Ditsele
and Others v Minister of Police and Another; Hesie v Minister of
Police and Another
(3131/2019;
805/2019)
[2023] ZAFSHC 33
(25 January 2023).
[6]
Ditsele
and Others v Minister of Police and Another; Hesie v Minister of
Police and Another
(3131/2019;
805/2019)
[2023] ZAFSHC 33
(25 January 2023) at [3].
[7]
A1
statement
in the docket with Phuthaditjhaba cas no. 27/4/2021 that forms part
of the discovered documents by the defendants and
referred to by the
witnesses in their testimony.
[8]
Mr.
Chetane, the plaintiff also goes by the name of "Thobi Phillip
Mokoena".
[9]
Abbreviation
used to protect the identity of the minor.
[10]
INDEX
-
DEFENDANTS
DISCOVERED
DOCUMENTS
SET
DOWN
24,
25
&
27
OCTOBER
2023
at
page
7.
[11]
See
pages 99 to 140 of the bundle: INDEX-
DEFENDANTS
DISCOVERED DOCUMENTS SET
DOWN
24, 25 & 27 OCTOBER 2023.
[12]
See
the
arrest
statement,
the
warning
statement,
and
the
A
1-statement
of
the
complainant
in
the
docket
with
Pbuthaditjhaba cas 25/4/2021 in the bundle INDEX -DEFENDANTS
DISCOVERED DOCUMENTS SET DOWN 24, 25 & 27 OCTOBER 2023 at
pages
11,
14, 16, 21
and
128 .
[13]
Section
50(6) of the CPA confirms that a presiding officer may:
50(6)(d):The
lower court before which a person is brought in terms of this
subsection, may postpone any bail proceedings or bail
application to
any date or court, for a period not exceeding seven days at a time,
on the terms which tbe court may deem proper
and which are not
inconsistent with any provision of this Act, if
(i)
the
court is
of the opinion that it has insufficient
infomation or evidence at its
disposal to
reach a decision
on
the bail application;
(ii)
the prosecutor informs the
court
that the matter has been or is going to be referred to an
attorney-general for the issuing of a written confirmation
referred to in section 60 (
11A);
(iii)
......
[Sub-para.
(iii) deleted by s. 8 (1) (c)of Act No. 62 of 2000.]
(iv)
it appears to the court that it is
necessary to provide the State with a reasonable opportunity to-
(aa)
procure material evidence that may be lost if
bail is granted; or
(bb)
perform
the functions referred to
in section 37; or
(v)
it appears to the court that it is
necessary in the interests of justice to do so.
Sub-s.
(6) added by s. 1 (b) of Act No. 75 of 1995 and substituted by s. 1
(b) of Act No. 85 of 1997.
[14]
Section
60 of the CPA
60(
1 )(a) An accused who is in
custody in respect of an offence shall, subject to the provisions
of
section 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.
[Para.
(a) substituted by s. 9 (a) of Act No. 62 of 2000.]
(b)
Subject to the provisions of section 50
(6) (c), the court referring an accused to any other court for trial
or sentencing retains
jurisdiction relating to the powers, functions
and duties in respect of bail in terms of this Act until the accused
appears in
such other court for the first time.
[Para.
(b) substituted by s. 4 (a) of Act No. 85 of 1997 and by s. 5 (a)of
Act No. 34 of 1998.]
(c)
If the question of the possible release of
the accused on bail is not raised by the accused or the prosecutor,
the court shall
ascertain from the accused whether he or she wishes
that question to be considered by the court. Section (2)
In
bail proceedings the court-
(a)
may postpone any such proceedings as contemplated
in section 50 (6);
(b)
may, in respect of matters that are not in
dispute between the accused and the prosecutor, acquire in an
informal manner the information
that is needed for its decision or
order regarding bail;
(c)
may,
in
respect
of
matters that are
in
dispute
between
the
accused
and the
prosecutor,
require of
the
prosecutor
or the accused, as the case may be, that evidence be adduced;
(d)
shall, where the prosecutor does not oppose bail
in respect of matters referred to in subsection (11) (a),
(b)
and (c), require of the prosecutor to place on record the reasons
for not opposing the bail application [Sub-s. (2) substituted
by s.
4 (b) of Act No. 85 of 1997. Para. (d) substituted by s. 4 (a) of
Act No. 12 of 2021 w.e.f. 5 August 2022.)
(2A)
The court must, before reaching a decision on the bail application,
take into consideration-
(a)
any pre-trial services report regarding the
desirability of releasing an accused on bail, if such a report is
available; and
(b)
the view of any person against whom the
offence in question was
allegedly committed, regarding his or her safety.
[Sub-s.
(2A) inserted
by s. 4 of Act No. 55 of
2003 and substituted
by s. 4 (b) of Act
No.
12 of 2021 w.e.f.
5
August 2022.)
(2B)
(a) lf the court is satisfied that the interests of justice pem1it
the release of an accused on bail as provided for
in subsection (I),
and if the payment of a sum of money is to be considered as a
condition of bail, the court must hold a separate
inquiry into the
ability of the accused to pay the sum of money being considered or
any other appropriate sum.
(b)
If, after an
inquiry
referred
to in
paragraph
(a), it is
found that the accused
is-
(i)
unable to pay any sum of money, the court
must consider setting appropriate conditions that do not include an
amount of money
for the release of the accused on bail or
must consider the release of the accused in terms
of a guarantee as provided
for in
subsection (13) (b); or
(ii)
able to pay a sum of money, the court must
consider setting conditions for the release of the accused on bail
and a sum of money
which is appropriate in the circumstances.
[Sub-s.
(28) inserted by s. 9 (a) of Act No. 66 of 2008.]
(3)
If the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal
or that it lacks
certain important information to reach a decision on the bail
application, the presiding officer shall order
that such information
or evidence be placed before the court.
[15]
See
section 60 of the CPA.
[16]
INDEX
-
DEFENDANTS
DISCOVERED
DOCUMENTS
SET DOWN 24, 25 & 27 OCTOBER 2023 at pages
130
line 7 to page 131 line 30.
[17]
INDEX
-
DEFENDANTS
DISCOVERED DOCUMENTS SET DOWN 24, 25 & 27 OCTOBER 2023 at page
125
from
line
18
to
line 30.
[18]
INDEX
-
DEFENDANTS
DISCOVERED DOCUMENTS SET DOWN 24, 25 & 27 OCTOBER 2023 at page
3.
[19]
INDEX
-
DEFENDANTS
DISCOVERED DOCUMENTS SET DOWN 24, 25 & 27 OCTOBER 2023 at pages
3
to
5.
[20]
AD
CLAIM
I-AD
UNLAWFUL ARREST AND DETENTION:
9.
9.1
On or about
1
April 2021 at the Phuthaditjhaba Police Station,
the
Plaintiff was arrested
by
Sgt
Makwanasi, without a
Warrant
of
Arrest,
for
intimidation
or
common
assault,
whereafter
he
was
issued
with
a SAPS496
and
released
on warning.
9.2
On or about the
3rd
of April 2021at or near Phuthaditjhaba Setsing Complex at Shorprite
the Plaintiff was
arrested by
Cpt
Mokoena,
without
a
Warrant
of
Arrest,
for allegations
of
assault,
intimidation
and
malicious
damage
to property.
10.
10.1
The Plaintiff after his arrest on 3 April 2021 was detained and
charged at the instance of the First Defendant, for assault,
intimidation and malicious damage to property.
10.2
On
the 6th
of
April
2021
the
Plaintiff
was
transported
to
the
Phuthaditjhaba
Magistrate's
Court
where
the
Plaintiffs Application for Bail was
denied
by members of the First
and Second
Defendants and he was
further detained
until the 13th of April 2021.
10.3
The further detention from the 6th of April 2021
unti1
the 13th of April 2021
was
at the Harrismith Correctional
Facilities
and after a further appearance at the Phuthaditjhaba Magistrate's
Court on the 13th
of April 2021 the
Plaintiff was granted bail in the sum of R300.00.
11.
At
all relevant times the aforementioned members were acting within the
course and scope of their empioyment as employees of the
Defendant.
12.
The
arrest of the Plaintiff was unlawful in the fact that:
12.1
I The members of the South African Police Services respectively did
not take into account the
Plaintiffs rights in terms of article 12
of the Constitution, Act 106 of 1996, (herein after called "the
Constitution");
12.2
The Plaintiff was arbitrarily and without good
cause deprived from his freedom;
12.3
That
the
members
of
the
South
African
Police
Services
had
no
grounds
to
interfere
with
the
Plaintiffs
Constitutional rights, by that:
12.3.1
The Plaintiff did not pose any risk to the
community;
12.3.2
The Plaintiff would not have evaded the court
hearing;
12.3.3
That the members of the
South
African Police Services had no grounds to believe that the Plaintiff
would harm himself or any other person of the public;
12.3.4
That the Plaintiff was in condition and/or had
the will to refute the allegations against him;
12.3.5
That the members of the South African Police
Services had no urgency towards the arrest of the Plaintiff;
12.3.6
That the members of the South African Police
Services did not take into
consideration
whether the Plaintiff had a known and fixed residence;
AND/OR
ALTERNATIVE:
13.
The
arrest and detention of the Plaintiff was unlawful due to the fact
that the members of the South African Police Service and
National
Prosecuting Authority had no primafacie and/or reasonable grounds to
arrest, detain and charge the Plaintiff.
AND/OR
ALTERNATIVE:
14.
The
arrest of the Plaintiff was unlawful due to the fact that the
members of the South African Police Services did not exercise
their
discretion/or did not exercise their discretion properly by:
14.1
That there was no obligation on the members of
the South African Police Services to arrest the Plaintiff;
14.2
That the members of the South African Police
Services did not investigate the matter properly and did not follow
up on the
Plaintiffs explanation;
14.3
That there were no grounds to suspect that the
Plaintiff had committed an offence;
14.4
That the members of the
South
African Police Services did not exercise their discretion properly
and bona fide;
15.
As
a result of the unlawful arrest, detention and further detention on
the instance of the First and Second Defendants, the Plaintiff
suffered damages in the sum of R500 000.00 for:
15.1
Depriving of the Plaintiffs freedom;
15.2
Contumelia;
15.3
Emotional stress and Psychological trauma;
15.4
Embarrassment suffered by the Plaintiff by
keeping him in holding cells and being arrested in front of members
of the public;
The
amount of R500 000.00 is a global amount for the Plaintiffs damages.
AD
CLAIM 2-MALTClOUS PROCEEDINGS:
16.
On
or about the 3rd of April 2021 at Shorprite grocery store in Setsing
Complex Phuthadithjaba and at the Magistrate's Court the
Defendants
wrongfully and malicious set the law in motion and proceeded witht
the prosecution by arresting, detaining and charging
the Plaintiff
for:
16.1
assault, intimidation and malicious damage to property;
16.2
by causing the Plaintiff to appear before Court on the 6th of April
2021 and opposed
his bai I and again on
the 13th of April 2021 when Plaintiff was granted
bail
in the sum of R300.00; and
16.3
after five further appearances in the matter was struck off the roll
on the 31st of May 2021 by a member of the
Second
Defendant due to a lack of evidence and/or probable cause to
successfully prosecute the Plaintiff.
17.
17.1
The Prosecutor(s) dealing with the case on behalf
of the Defendant elected to proceed with the said prosecution, which
prosecution
commenced on the 6th of April 2021 in the Phuthaditjhaba
Magistrate's Court when Plaintiff's bail was denied.
17.2
On the 13th of April 2021
the
Plaintiff appeared again in
the
Phuthaditjhaba Magistrate's Court and was granted bail in the sum of
R300.00;
17.3
After five more appearance the matter was strike
from the roll due to the lack of evidence and/or probable cause to
successfully
prosecute the Plaintiff.
17.4
The
members of the
Prosecuting authority
failed to
properly execute their duty of care by
considering all
the relevant informaition
pertaining to the charges instituted against thim by members of the
First and Second Defendants.
18.
The
member(s) of the South African Police and prosecutor(s) dealing with
the Plaintiff's case on behalf of the Defendant had no
reasonable or
probable cause for charging and prosecuting the Plaintiff
alternatively had no reasonable or probable cause for
continuing the
prosecution of the Plaintiff for the offence referred to above, nor
did he/they have any reasonable belief in
the truth of the
information at their disposal.
AND/OR
IN THE ALTERNATIVE TO PARAGRAPH 18:
19.
The
actions of prosecutor(s) dealing with the Plaintiff's case on behalf
of the Defendant was wrongful in that he/they;
19.1
Did not consider and/or evaluate the evidence to
his/their disposal properly; and/or
19.2
Should have realised that sufficient evidence did
not exist to constitute a prima facie case against the Plaintiff;
and/or
19.3
Should have realised that a successful
prosecution against the Plaintiff would not follow if the available
evidence were properly
considered.
20.
The
actions of the member(s) of the South African Police dealing with
the Plaintiff's case on behalf of the Defendant was wrongful
in that
he/they
20.1
Failed to investigate properly the
allegations as leveled by the complainant.
21.
At
all relevant times member(s) of the South African Police acted
within the course and scope of their employment for the Defendant.
22.
As
a
result
of
the
foregoing
the
Plaintiff
suffered
damages
in
the
amount
of
R150
000.00
for
contumelia
and depravation of freedom and discomfort
suffered by the Plaintiff.
[21]
Defendants'
amended plea dated 8 May 2023. Bundle: INDEX-
PLEADINGS
PAGES 24 TO 30.
[22]
Escaping
from lawful custody, where the person concerned is in such custody
in respect of any offence referred to in this Schedule
or is in such
custody in respect of the offence of escaping from lawful custody.
Any conspiracy, incitement or attempt to commit
any offence referred
to
in
this Schedule.
Any
person who- (a)comm its torture; (b) attempts to commit torture; or
(c) incites, instigates, commands or procures any person
to commit
torture, is guilty of the offence of torture and is on conviction
liable to imprisonment,
including
imprisonment for life. Any person who participates in torture, or
who conspires with a public official to aid or procure
the
commission of or to commit torture, is guilty of the offence of
torture and is on conviction
liable to
imprisonment, including imprisonment for life.
[23]
Abbreviation
used
to protect the identity of the minor.
[24]
Biyela
supra
and
also see
Duncan
v Minister of law-and-Order
1986
(2) SA 805
(A) at 818G -
H.
[25]
Sekhoto
supra
at
paragraphs [21] to [22].
[26]
Sekhoto
supra
at
paragraphs [42] to [44] at 331c-332a.
[27]
Criminal
Law,
Hiemstra's
Criminal
Procedure,
Chapter
9
Bail,
60
Bail
application of accused
in
court, Author: Albert Kruger, Last Updated: March 2024.
https://www.mylexisnexis.co.za/lndex.aspx.
[28]
Okpaluba,
C.,
Reasonable
and
probable
cause
in
the
law
of
malicious
prosecution:
A
review
of
South
African
and
Commonwealth decision,
PERIPELJ
2013 (16) 1 241- 279.
[29]
https://
www.npa.gov.za/npa-code-conduct
accessed
on 21 January 2023.
[30]
Okpaluba,
C.,
Reasonable
and probable cause in the law of malicious prosecution: A review of
South African and Commonwealth decision,
PERI
PELJ
2013 (16) I 241- 279 at 241.
[31]
Also
see
paragraph
[23]
above.