Zitha v Minister of Police and Another (735/2019) [2024] ZAECBHC 9 (26 April 2024)

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[2024] ZAECBHC 9
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Zitha v Minister of Police and Another (735/2019) [2024] ZAECBHC 9 (26 April 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
NOT
REPORTABLE
CASE
NO:  735/2019
In
the matter between
LUBABALO
ZITHA
Plaintiff
and
MINISTER
OF POLICE
First
Defendant
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
Second
Defendant
JUDGMENT
HARTLE
J
Introduction:
[1]
The plaintiff seeks damages against the
first defendant arising upon his claimed unlawful arrest on 30
November 2018 on a charge
of robbery and his detention pursuant
thereto “
until his release from
custody
” on 8 July 2019 when that
charge was withdrawn.  He alleges that by virtue of certain
conduct committed by members of
the first defendant (at times acting
in concert with members of the second defendant) he was unlawfully
detained throughout the
entire period both pre and post first court
appearance.  In consequence of the loss of his liberty, he
claims to have suffered
a violation of his right to dignity and
contumelia
.
He asserts the right to be compensated in damages for the full period
of his detention.
[2]
It is apposite to mention the specific
misconduct relied upon in respect of Claim 1.
[3]
Firstly, it is alleged that when they
arrested the plaintiff, the relevant members of the South African
Police Services (“
SAPS
”):
“
8.2.1
failed to produce a warrant,
8.2.2
failed to exercise a discretion whether to arrest the plaintiff or
not,
8.2.3
did not possess reasonable suspicion that the plaintiff committed
robbery.”
[4]
For these reasons the plaintiff asserts
that his arrest was wrongful in consequence of which he was
unlawfully detained at the Mdantsane
Police Station until his first
court appearance.
[5]
Further the plaintiff alleges that
subsequent to his first court appearance he was unlawfully detained
at the instance of the employees
of both defendants until “charges”
were withdrawn on 8 July 2019.  He asserts that his continued
detention was
wrongful and unlawful by virtue of the following:
“
8.5.1
The first defendant’s members acting in concert with the
prosecutors maliciously and/or recklessly opposed the
granting of
bail or release of plaintiff on warning without considering the
merits of the charges against the plaintiff and without
any lawful
basis.
8.5.2
The members of both defendants perpetuated the plaintiff’s
unlawful detention by withholding relevant
information and misleading
the court and failing to disclose that there was no evidence that the
plaintiff had committed offence.
8.5.3
Members of both defendants failed to assess the strength of the State
case against the plaintiff and to
consider and place before court
relevant factors which would determine whether the plaintiff’s
further detention was warranted
in circumstances.
8.5.4
The members of the second defendant failed to withdraw charges
against the plaintiff on each of the court
appearances prior to his
release notwithstanding that his detention was not warranted and
there was no prima facie against him.
8.5.6
The members of the defendants acting in concert failed to place
before court on each of the plaintiff’s
court appearances all
relevant information as to the strength and weaknesses of the State
case against him and information in the
plaintiff’s favour,
which was relevant for consideration by court in deciding whether to
release the plaintiff from custody.”
[6]
Also pressed against the defendants is a
second claim of alleged malicious prosecution relating to the
aforesaid robbery charge
framed under Inyiba CAS 130/11/2018 and
flowing from two further counts of robbery said to have been
committed by the plaintiff
under an earlier docket that had been
opened against him and other suspects under Inyiba CAS 93/07/2018.
[7]
It
transpired that effective with his arrest on 30 November 2018 the
plaintiff was charged with three counts of robbery.  The
first
count emanates from CAS 130/11/2018.  In this respect he was
arraigned before the district magistrate’s court
in Mdantsane
under case no. A1830/18 for the first time on 3 December 2018.
[1]
The further two counts arose under the earlier docket in which he was
also implicated as a suspect.  By the date of
his arrest the
case concerning the last two counts against him had already been
enrolled in the Mdantsane district court on 6 August
2018 against a
co-accused under case number A1218/18.
[2]
[8]
The plaintiff claims that the initiation of
all three charges against him was effectuated maliciously and without
reasonable or
probable cause.
[9]
Further
to establishing the elements of the claim of malicious prosecution,
the plaintiff pleads that the charge preferred against
him under CAS
130/11/2018 was withdrawn due to poor prospects of success and a lack
of sufficient evidence against him and - in
respect of the two counts
preferred against him under CAS 93/07/2018, that he was tried before
the regional court and discharged
at the close of the State’s
case.
[3]
[10]
It is common cause that the plaintiff was
held in custody from 30 November 2018 until the last date of his
release on 5 July 2019
in respect of the robbery charge framed under
CAS 130/11/2018.
[11]
Whilst admitting that the arrest of the
plaintiff was effected without a warrant on 30 November 2018, the
first defendant pleaded
that it had ensued on the basis that the
police were “
armed with
information linking him to the offence
”
of robbery and that the arresting officer had entertained a
reasonable suspicion, undergirded by information placed at their

disposal which was verified by the complainant. The latter was
himself present at the moment of arrest to point out the plaintiff
as
one of the perpetrators who had robbed him.
[12]
The plaintiff’s continuing detention,
until the said count of robbery was withdrawn by the second defendant
in terms of section
6 (a) of the Criminal Procedure Act, No. 51 of
1977 (“
CPA
”)
on 5 July 2019, was also defended as lawful on the basis that the
plaintiff and his co-accused had been “
legally
”
and “
correctly
”
charged.
[13]
The
first defendant further asserts, in response to the bald allegation
in the plaintiff’s particulars of claim that the members
of the
South African Police Service “
failed
to exercise a discretion whether to arrest
(him
)or
not”
,
that his members indeed properly applied their discretion in carrying
out the arrest, and that they respected the plaintiff’s

constitutional rights in the process.  As for the suggestion
that his members compromised the plaintiff’s right to be

released on bail, it was noted that the latter had been charged with
“
schedule
5 offences
”
[4]
(sic) which required him to remain in custody unless he satisfied the
court as to his entitlement to be released on bail.
Further, so
it was pleaded, the plaintiff in any event voluntarily withdrew his
bail application.
[14]
To the allegations of malicious
prosecution, the defendants pleaded that the plaintiff was lawfully
and correctly charged with robbery
under the aforesaid dockets with
objective evidence linking him to the offences and that no malice
existed.  From the point
of view of both defendants, reasonable
prospects of success in the three charges preferred against him were
said to have existed
as well as “
clear
evidence
” to sustain their
prosecution of them.
[15]
The plaintiff testified first.
[16]
In order to justify his arrest (admittedly
carried out without a warrant) and detention over the whole period
and to refute the
allegations of misconduct, malicious prosecution
etc., the defendants led the evidence of the arresting officer
Sergeant Siviwe
Ngcatshe as well as the two prosecutors who had
enrolled and/or endorsed the robbery charges in the respective
courts.
[17]
Documentary
evidence, including the contents of the two relevant police dockets
and the separate court records concerning the plaintiff,
was also
entered into evidence by consent.
[5]
I
point out that the court records in respect of the proceedings under
CAS 93/07/2018 were discovered during the trial only in November
2022
and were only referenced by the last witness for the second defendant
when he gave his testimony.
[18]
Since the defendant relied on the statutory
justification for the arrest made provision for in section 40 (1)(b)
of the CPA, one
of the questions which arises is whether the
suspicion that the arresting officer harbored that the plaintiff had
committed the
offence of robbery, which led to his arrest in the
first instance, was reasonable in the circumstances.  It is
common cause
that the plaintiff’s apprehension on 30 November
2018 provided an opportunity to additionally charge and add him as a
co-accused
to the already enrolled case in the Mdantsane district
court under case no. A1218/18.  The reasonableness or not of him
being
charged by the South African Police Services on the two counts
arising under CAS 93/07/2018 is however not under contention in
respect of Claim 1.
[19]
Additionally,
the substantive legality of the plaintiff’s ensuing detention
is under scrutiny.  If found proven that
the first defendant’s
members conducted themselves unlawfully in the respects contended
for, the further question which begs
itself is whether such culpable
conduct materially conduced to the plaintiff’s fate of
remaining in custody during the entire
period as a result of his
wrongful arrest.
[6]
[20]
Although the plaintiff purported to make
out a case in his testimony that his arrest was procedurally wanting
as well, no complaint
appears from his particulars of claim in this
respect.
[21]
The soundness of all the charges in respect
of both dockets is further in contention. The question arises in this
regard whether
in instigating these charges the defendants’
members entertained an honest belief founded on reasonable grounds
that their
institution was justified.  The question whether the
charges carried with them reasonable prospects of success and
evidence
to sustain them is further in my view also entirely relevant
to the legality review.
Plaintiff’s
testimony:
[22]
The plaintiff related the circumstances
under which he came to be arrested on 30 November 2018.  He and
a friend Koloba had
been asleep upon the arrival of Sergeant
Ngcatshe’s at his home in the morning.  He says that the
latter kicked open
his door.  He was in the company of a second
police officer as well as the complainant, Mr. Majavu.
[23]
The
complainant took the lead and questioned him regarding the
whereabouts of his belongings which he had complained to the police

he had been robbed of by the plaintiff and one Siyabonga.
[7]
Sergeant Ngcatshe however at the outset himself announced to him that
he had been looking for him for a long time, this with reference
to
the two robbery charges under CAS 93/07/2018.  The plaintiff
says that he told Mr. Majavu then and there that his property,
that
is the cap and hoodie and sneakers that had been taken from him, were
with Siyabonga.
[24]
He professed not to have known why he was
asked to produce these items and provided some background story about
how it came to happen
that Siyabonga after a scuffle had dispossessed
Mr. Majavu of his clothing as “
security
”
for a music system that he, the complainant, had purportedly taken
from the latter.  According to him this had happened
some two or
three days earlier and when he had last seen Mr. Majavu, he (the
plaintiff) has sent him on his way wearing a pair
of his own
“
push-shoes
”
so that he would not go barefoot, this information ostensibly offered
in support of his claim of innocence and insistence
that he was
uninvolved in the whole debacle but aware that the complainant’s
possessions had been taken from him.
[25]
He
insisted that he had not been informed at the time why he was being
arrested, yet related that he had been handcuffed.
The police
also searched his shack.  Between leaving his house and arriving
at the Inyiba Police Station ultimately, he was
first driven in a
police car to look for another man, one “
Fire
”,
at NU14.  (The witness did not explain the relevance of this
person or link him to the matter at hand.)
[8]
[26]
At the Inyiba Police Station he was held
for almost three hours after “
being
given a paper
” by police officers
on duty at reception on which was written “
robbery
”.
The document identified by him during his testimony is the
constitutional warning colloquially referred to as the
SAPS 14A form
which on the face of it was administered by Sergeant Ngcatshe
himself.  He was thereafter taken to the NU1 Police
Station
where he was held in detention.
[27]
He was aware that he had been arrested for
more than one case. He acknowledged knowing that the second case
involved a complainant
by one Sivuyile Sonqwelo but denied being
involved in such a matter except for the fact that he had been named
by her as a suspect.
[28]
Asked if he had applied for bail after his
arrest, he claimed that Sergeant Ngcatshe had informed him that he
would not get bail
because he had a pending case.  He conceded
that his legal representative had abandoned his bail application in
court but
suggested that he would not have done so but for what
Sergeant Ngcatshe had told him.
[29]
As
an aside he did not take the court into his confidence concerning the
nature of the pending case except to relate that it had
been
withdrawn.
[9]
[30]
Under cross examination he conceded to
knowing the reason why Sergeant Ngcatshe had arrested him, namely
regarding the complaint
against him by Mr. Majavu of the robbery of
his clothing.  He however refuted (on his version of how Mr.
Majavu had come to
be dispossessed of his property) that he had
threatened him with a knife or that he had been complicit in the
incident contended
for by Mr. Majavu.
[31]
He denied having been pointed out by Mr.
Majavu (on the occasion of his arrest) as the person who had robbed
him.  Asked why
he thought Mr. Majavu had suggested that he was
complicit with Siyabonga in committing robbery, he blamed it on
everybody smoking
“
tik
”.
According to him Siyabonga was responsible for the robbery.  He
acknowledged though that he had been present
at the time of the
incident and had in fact tried to intervene when Siyabonga wanted to
stab the complainant.
[32]
Asked why he had not at the outset asserted
his innocence that he was not involved in the robbery on Mr. Majavu’s
version,
he claimed to have not known at the time he left his shack
with the police that he was in fact under arrest for this offence.
[33]
He claimed that on the day of his arrest he
had not conversed with Sergeant Ngcatshe in his shack at all as if to
suggest that the
latter went about the exercise of effecting the
arrest without saying a word to him.
[34]
As to how he supposedly responded to
Sergeant Ngcatshe’s opening gambit that he had been looking for
him for a long time,
and quite forgetting that he had said that they
did not converse at all during their brief exchange, he related that
he had questioned
him at the time how it was possible that he could
have been looking for him since he (the plaintiff) regularly sees him
on the
streets.
[35]
Although denying that Sergeant Ngcatshe had
informed him of his constitutional rights, he yet agreed that he had
signed the SAPS
14A.  He denounced that any discussion between
him and Sergeant Ngcatshe had preceded his signing except that the
latter had
supposedly told him to sign the document.  He also
emphasized that the search of his shack had happened without his
permission.
[36]
According to him he only spoke with the
police about the charges implicating him the following day.  He
agreed that he was
known by the nickname “
Buga
”
who is the person Mr. Majavu referenced in his statement as the one
who had robbed him together with Siyabonga.  He
added that he
was known by his nickname not only by Mr. Majavu, but also by Ms.
Songwelo.
[37]
As for the second case, involving the
earlier charges under CAS 93/7/2018, he denied having been involved
in the claimed robberies
but set the record straight that he was
absolved of any liability for these claimed incidents by the regional
court when the matter
went on trial before it.
[38]
Concerning the question of bail in the
regional court he conceded that it had been properly recorded there
as well that he had abandoned
his application, but he added again
that it was because of Sergeant Ngcatshe’s remarks to him about
a pending case.
The
arresting officer’s testimony:
[39]
Sergeant
Ngcatshe testified that after becoming seized of the matter in his
capacity as police officer, he read the docket and then
interviewed
the complainant, Mr. Majavu, in order to obtain further information.
Mr. Majavu had complained in his statement
to the police that on 28
November 2018 at NU 16, Mdantsane he had met up with Siyabonga and
the plaintiff, Buga, who had complimented
him on his attire.
They invited him back to the plaintiff’s shack to smoke.
There the two of them drew knives
on him.  The complainant fell
down.  Siyabonga stabbed him while the plaintiff dispossessed
him of his clothing and wrist
watch which they ran off with.
(As an aside this narrative of what happened conforms to the
complainant’s founding
statement filed in the docket that he
made shortly after the incident.)
[10]
[40]
At
the time there was a pending case in which the plaintiff had been
accused of robbing someone else and he related that he was
looking
for the plaintiff in this matter that he had been investigating as
well.  He disclosed that the complainant in that
instance was
Sivuyile Sonqwelo and that four suspects were implicated in respect
of those offences. In statements made by the complainant
and a
witness (in CAS 73/09/2018 which he referenced during his
testimony)
[11]
the plaintiff
had been identified by name as a co-perpetrator in respect of two
consecutive robberies perpetrated against her at
knifepoint on 20 and
21 July 2018.
[41]
Mr. Majavu offered to take the witness to
where he knew the plaintiff to be staying with Siyabonga.
[42]
On his arrival at the plaintiff’s
shack, he proceeded to the door which was ajar.  After knocking
two men came out, but
before he could address the complainant, Mr.
Majavu exclaimed “
Hey Buga, I need
my clothing items from you!
”
He acknowledged that it had been inappropriate for Mr. Majavu to
interpose himself as he did but confirmed that he
immediately retook
charge of the visit.
[43]
He and the plaintiff were already known to
one other.  He explained the reason for his presence there which
entailed him acting
principally on Mr. Majavu’s robbery
complaint.  He informed him of his plan to arrest him and of his
constitutional
rights as an arrested person even as he was
handcuffing him.  He asked permission to search his shack but
the plaintiff offered
the explanation that the items he was looking
for were with Siyabonga who was in fact wearing them.  They
proceeded accordingly
from the plaintiff’s home to look for
Siyabonga in NU 16, but to no avail.  Later they drove to the
police station and
he registered the matter in the books there, gave
the plaintiff his constitutional rights in writing on SAPS 14A, and
left him
to be detained.
[44]
He
identified his own statement in the docket made contemporaneously
with the arrest which conformed to his oral testimony.
[12]
[45]
He also alluded to the statements made by
Ms. Sonqwelo in the other docket in which the plaintiff was being
sought as a basis for
his secondary interest in arresting him.
He related the gist of her complaint and that the plaintiff had been
named by her
and a witness as being complicit in the two robberies
perpetrated against her.
[46]
He denied that he had been undermined by
Mr. Majavu at the point of entering the plaintiff’s shack or
that he had supposedly
not said a word to the plaintiff during his
arrest encounter.  Indeed, he added that it was on the basis of
the plaintiff
conversing with him and the information which that
discussion had generated, namely that Siyabonga was wearing the
complainant’s
clothes, that they had driven around looking for
Siyabonga.
[47]
He confirmed that he officially
administered the plaintiff’s constitutional rights to him at
the station per SAPS 14A in addition
to having informed him during
the arrest encounter of his rights as an arrestee.  He had also
asked his permission to search
his shack.
[48]
Asked to justify why he had arrested the
plaintiff, he asserted that it was because Mr. Majavu had identified
him as the suspect
who had robbed him together with Siyabonga and
because he would be failing in his duty as a police officer if he had
not.
He added that he had previously visited the plaintiff’s
home several times before (following up on leads from informants)
in
order to find him but had been informed by his mother and neighbors
that he was unavailable.
[49]
He explained that he had not personally
gone to court when the plaintiff appeared after his arrest because he
went on leave, but
he learnt from a colleague that his personal
attendance at a bail hearing would in any event have been unnecessary
because the
plaintiff abandoned his bail application.
[50]
Under cross examination he emphasized that
he had been intent on properly exercising his discretion hence the
fact that prior to
arresting the plaintiff he had sought verification
from the complainant, Mr. Majavu, of the facts written in his
statement.
[51]
As
for the allegation in the docket that the complainant had supposedly
been stabbed and had sustained open wounds in the debacle,
he
acknowledged that he had not seen the wound for himself because Mr.
Majavu, when he had consulted with him, was wearing a bandage
around
his head.  He conceded that insofar as the J88 was concerned,
the doctor had not recorded that he had seen any injury
himself but
had merely noted the history given to him by Mr. Majavu that he had
been assaulted on 28 November 2018.  (As an
aside the J88 could
evidently not have been to hand when Sergeant Ngcatshe made the
decision to arrest.)
[13]
[52]
He denied that when Mr. Majavu had
challenged the plaintiff in his presence, that is concerning the
whereabouts of his property,
that the latter had offered the
explanation that his property was with Siyabonga.  Instead,
according to him, it was only
when he asked to search the plaintiff’s
premises (that is after arrest) that this explanation was
forthcoming.  He adverted
to his arrest statement in which he
recorded exactly his claimed interaction with the plaintiff on this
basis.  He added that
before arresting the plaintiff he had also
expressly indicated in what capacity he was visiting his home and his
intention thereby.
Siyabonga was not present, so he had
established, or at least the person in the plaintiff’s company
was not the suspect he
had gone looking for at the plaintiff’s
home.
[53]
He was evidently unaware of the plaintiff’s
version that Siyabonga purportedly took the complainant’s
property as a
kind of “
surety
”
and he bore no knowledge concerning Siyabonga’s music system
having been stolen.
[54]
He explained that he did not delve into any
further explanation because the presence of the complainant and what
he had stated in
his affidavit satisfied him enough that the arrest
of the plaintiff was appropriate in all the circumstances.  He
did not
believe that it was necessary, as was suggested to him under
cross examination, to have enquired further in order to satisfy
himself
that indeed an offence of robbery had been committed.
[55]
He
agreed that he had prepared a bail information form pertaining to the
plaintiff which he identified in the court bundle.
He conceded
that in it he confirmed his objection to the plaintiff being released
on such a basis.  According to him much
of the information or
answers recorded in the form at the date of its completion on 1
December 2018 were obtained from the plaintiff
himself, such as for
example the confirmation that he was on bail in another case of
theft.
[14]
He explained that
the customary process is ultimately to verify details provided on
such a basis before a bail application ensues.
His colleague
would have had to attend to any verification on his behalf while he
was on leave but in this instance the plaintiff
had abandoned his
request for bail, rendering it unnecessary in the end.
[56]
He readily conceded that his positive
recordal of the questions whether the plaintiff had escaped or
attempted to escape and whether
he had evaded/resisted arrest were
misconceived, based on a misunderstanding on his part.  In his
view his having looked for
the plaintiff for a long time before
arresting him and his running away and avoiding the objective of his
arrest was a sure indication
that he should answer positively to the
question whether the plaintiff had attempted to escape or resist
arrest.
[57]
He also considered that having been told by
the plaintiff that he was staying at his home, whereas he could not
be found there,
was tantamount to him providing false information to
the police which is why he answered “
yes
”
to this question stipulated in the bail information form.
[58]
He also explained that his understanding of
the question whether the plaintiff was a member of a gang or
syndicate had to be answered
in the positive because he was among a
group of suspects allegedly committing the offences perpetrated
against Ms. Sonqwelo.
He added that he also knew them (the
plaintiff and the co-accused) to be “
always
together
” when they commit such
offences.
[59]
With reference to the constitutional
warning statement which the witness took from the plaintiff re CAS
130/11/2018, he conceded
that it is incomplete regarding the election
made by the plaintiff to remain silent but he was not in agreement
that this meant
that he had failed to inform the plaintiff of his
constitutional rights.  He explained that he had simply not gone
further
in administering the warning statement once the plaintiff had
informed him of his desire to remain silent.
[60]
He denied especially that he had given the
plaintiff blank warning forms to sign.  He further clarified
regarding the warning
statement taken by him from the plaintiff under
CAS 93/07/2018 that he had followed the exact same approach, that is
of not making
any further entries in it once it had been made clear
to him by the plaintiff that he formally did not wish to say anything
in
a statement.
The
testimony of Mr. Mazibuko:
[61]
Mr. Vumani Mazibuko, who came with 17 years
of prosecutorial experience at the time of his testimony, was
employed as a senior public
prosecutor with the The National
Prosecuting Authority stationed at the Mdantsane Bail Court when the
plaintiff made his first
appearance in court under CAS 130/11/2018.
He received the docket in that matter and read it to determine
whether probable cause
existed for the enrolment and was so
satisfied.  He identified in court the founding statement of the
complainant, Mr. Majavu.
He especially considered that all the
elements for the offence of robbery were in place and was also
satisfied that there was no
issue as to identity.  Firstly, the
plaintiff and the complainant were known to each other and, secondly,
the incident had
occurred during the day.
[62]
It was under these circumstances, and in
the exercise of his professional duties as a prosecutor and holding
the view that there
was a
prima facie
case of robbery made out against the suspects in the founding
statement, that he had decided to enroll the matter.
[63]
He
heard later that the case had been withdrawn against the plaintiff by
a colleague.  He expressed concern in this regard
because he
firmly believed that there had been enough evidence to have
prosecuted him.  He added that it was indeed his intention
to
place the matter back on the court roll because there was indeed
sufficient evidence in his view to revive the prosecution against

him. (As an aside it appears from a notification in the docket that
the complainant had not wanted to proceed with the prosecution
which
puts an entirely different spin on the matter than that the
prosecution was objectively doomed for want of probable cause.)
[15]
[64]
He clarified that when his view was formed
as to the enrolment of the case, it was on the basis of what he had
read at first appearance.
This was ostensibly before the J88 report
had been obtained.
[65]
Asked to reflect on the cogency of Mr.
Majavu’s founding statement since the J88 report does not
provide objective confirmation
of the injuries contended for him, he
was not inclined to change his mind that it had not been a proper
case to enroll and prosecute.
[66]
He assumed that because the complainant had
gone to the doctor late that this might explain why the latter found
an absence of any
visible injuries.  He readily conceded however
that if there had been an injury to the complainant’s head and
a wound
to his wrist that the doctor would surely have seen and
recorded those on 29 November 2018 when he had examined him.  He
volunteered
his view though that even in the absence of any injuries,
the mere wielding of a dangerous weapon mentioned in the
complainant’s
statement would have satisfied him that the
element of force was present to substantiate a charge of robbery with
aggravating circumstances.
[67]
Further even if the plaintiff’s
co-accused (as outlined in the complainant’s founding statement
in the docket) had been
the primary aggressor, he laid emphasis on
the fact that it was the plaintiff who had removed the complainant’s
property
whilst he was stabbed by Siyabonga, suggesting to him that
common purpose had evidently been at play according to his take on
the
matter.
[68]
The plaintiff’s supposed defence that
he had not been complicit in the dispossession of the complainant of
his property was
certainly not known to him at the time of deciding
the case on first appearance.
[69]
He was further unmoved by the suggestion
that because the complainant and the plaintiff were purportedly
friends that this detracted
from the veracity of the founding
affidavit that the plaintiff and Siyabonga had actually perpetrated a
robbery against him.
[70]
As
an aside there is nothing else in the docket that records any defence
raised by the plaintiff to the charge such as emerged during
his oral
testimony regarding Siyabonga supposedly having retained the
complaint’s property as security for the loss of his
own music
system. Ironically though, in the statement of the officer who
arrested Mr Piyo, he/she reports the latter’s denial
that he
had taken Mr. Majavu’s belongings yet reveals a defence that
their whereabouts was rather known to the plaintiff.
[16]
The
testimony of Mr. Jack:
[71]
Mr. Thamsanqa Jack, also a seasoned
prosecutor employed by the National Prosecuting Authority as a
district prosecutor based at
the Gqeberha Magistrate’s Court at
the time of his testimony, related that he had been a regional court
prosecutor in court
2 at Mdantsane when the docket under CAS
93/07/2018 came up for consideration before him as a first appearance
there.  The
practice according to him is to first postpone
matters referred to the regional court to a date for consultation but
before doing
so he had also satisfied himself upon a reading of what
was contained in the docket that there was enough evidence that the
suspects
mentioned therein (which included the plaintiff referred to
in two statements as “
Bhuga
”)
had committed the offences in question.  He thereupon consulted
with both Ms. Sonqwelo and a Ms. Sinethema Gcongo
to confirm as much
and the matter was, on the basis of him supporting that there was a
proper case to be answered by the plaintiff
on both counts, postponed
for trial in the regional court.
[72]
On
8 March 2019 the trial ensued and was postponed to 13 March 2019 for
further testimony at which juncture the defence successfully
applied
for a discharge in terms of section 174 of the CPA.
[17]
He was yet satisfied, despite the discharge, that the state’s
case was adequate.
[73]
With reference to the court proceedings, he
laid emphasis on what he had argued before the regional court after
the State had submitted
that there was no
prima
facie
case in respect of count 1 and,
with regard to count 2, that the evidence was that accused 1 and 2
were not present during the
robbery:
“…
After
the State’s case was finished, the defence applied for 174,
stating that there is no
prima facie
evidence before the Court.  So there is no need for the accused
to stand trial.  And my response was that in respect
of Count 1,
yes, we have evidence of a single witness.  But if a single
witness meets the requirements of Section 218 and
by saying that, I
was saying that the accused that are before Court are well known to
the complainant and she is placing them on
the scene on the day in
question.  And she tried to fight with them and they took her
phone and the money away on the day
in question.  Coming into
evidence in Court 2.  The State had two witnesses that were
placing the accused in question
on the scene, by the evidence of
Sinethemba as well as the evidence of the complainant.  But the
174 was granted …”
[74]
The court only recorded its judgment that
the application for discharge had been successful without furnishing
any reasons in this
regard.
[75]
As for the question of bail he identified
where in the court record it is evident that after the plaintiff had
been arrested and
joined to the proceedings, bail was noted to have
been “
abandoned
”
on both counts on which the plaintiff had stood arraigned on charges
of robbery with aggravating circumstances.  He
observed that
these were Schedule 6 offences where the number of accused involved
and the severity of the offence would in his
view have featured
prominently as factors standing in the way of the plaintiff having
been granted bail.  Further, so he explained,
the onus would
have been on the latter to show to the court that exceptional
circumstances existed which permitted his release
in the interests of
justice.  In this instance the plaintiff had elected not to make
such an application.
[76]
He
readily conceded under cross examination and with hindsight that it
was of concern that the complainant in her initial founding
statement
in the docket had not mentioned the plaintiff by name – on the
assumption that he was involved on count 1, since
he was purportedly
known to her.
[18]
[77]
He also conceded that there was a fine
discrepancy between the complainant and her eye witness in their
police statements regarding
the number of assailants.
[78]
He agreed with the assertion put to him by
Mr. Ngumle (that is in the light of this discrepancy pointed out to
him) that it was
then no surprise that the plaintiff was acquitted
because the State had a “
terrible
case
”.
[79]
According to him at no time did it come to
his mind that he should have gone beyond the plaintiff’s
election not to pursue
bail for himself or to examine why that was
the case. He agreed that he would have had regard to Sergeant
Ngcatshe’s bail
instruction form in making his decision
regarding the issue of bail which, objectively, confirms a valid
basis to have opposed
his release on such a basis.
The
bail proceedings in the district and regional court under CAS
93/07/2018:
[80]
Mr. Jack confirmed that the plaintiff
remained in custody on these charges from the moment of his first
appearance in the regional
court as accused no. 2 and that the
obvious reason suggested by the court record for this fact is because
the accused had intimated
to the court that they did not wish to
apply for bail.
[81]
He emphasized in this respect however that
the plaintiff and his co-accused had been arraigned on two counts of
robbery with aggravating
circumstances and that these are schedule 6
offences.  Asked what impact this would have had on the
plaintiff’s entitlement
to be released on bail, he testified as
follows:
“
MR
NGADLELA:
So up until this day, 8
March, up until the date of the application for 174, the accused, the
plaintiff was in custody.  Is
that what you are saying:
MR
JACK:
Yes, sir.
MR
NGADLELA:
And what was he charged for?
MR
JACK:
He was charged for two counts of
robbery with aggravating circumstances.
MR
NGADLELA:
What is that?
What schedule is that?
MR
JACK:
It is
Schedule 6, sir
MR
NGADLELA:
What does it say, the
schedule?  Can you just tell the Court what is Schedule 6, what
does it say?
MR
JACK:
Schedule 6, it also depends on
the seriousness of the crime.  In this instance when the
complainant was robbed, he was robbed
by more than two persons.
So we formulate the charge as to the severity of the offence as well
as what was done to her on
the day in question.  In both these
incidents, the complainant is mentioning the issue of knives.
In the first incident
of the 20
th
as well as the second incident of the 21
st
.
And then due to the fact that the knives were taken and after that
her cell phone as well as her money was taken from her
by force, and
in both these incidents.  That is what the State is alleging.
MR
NGADLELA:
So Schedule 6 is more of
serious offences committed.
MR
JACK:
Yes
MR
NGADLELA:
With aggravating
circumstances.
MR
JACK:
Yes, and the aggravating in this
one is that a knife was used to threaten, in fact in Count 1, the
complainant is alleging that
she was stabbed on the finger.
There is a statement, she mentioned that she was stabbed in the
finger.  She did not
go to hospital for treatment.  And in
that count, she also tried to fight because of the number as well as
the weapons that
were there.  That is why they were able to take
her item.
MR
NGADLELA:
What other principle does
Schedule 6 has in regard to the onus?  What does it say, what
does it tell?
MR
JACK
: It says that the accused must,
bears the onus in the fact that the accused must show the Court
whether are any exceptional circumstances
that permits his release in
the interest of justice.  So the accused must come with reasons
which are not ordinary in order
for the Court to grant him or her
bail.
MR
NGADLELA:
Did the accused exercise that
right?
MR
JACK:
He did not exercise, according to
what I saw in the records here.”-
[82]
In his view and as far as his role was
concerned, if the plaintiff had insisted on applying for bail “
he
was definitely going to be granted that opportunity
”.
[83]
As for what had preceded his appearance in
the regional court, he adverted to the record of the district court
proceedings which
reflect the same election on the part of the
plaintiff not to have wanted to pursue an application for bail.
[84]
As an aside, Mr. Jack’s testimony is
entirely consistent with the documentary evidence comprising the
records in respect of
both these courts.
The
bail proceedings in the district court under CAS 130/11/2018:
[85]
These reflect that the plaintiff first
appeared on 3 December 2018 and that the magistrate informed him and
his co-accused of their
right to apply for bail.  The public
prosecutor in addressing the court noted that Schedule 5 (sic) was
implicated and that
bail for both was to be opposed.  Also
recorded is a request by the defence that the case be transferred for
a formal bail
application to 4 December 2018, to which date the
matter was postponed, with both accused being remanded in custody.
[86]
On 4 December 2018, the magistrate’s
notes read as follows:
“
PP:
New matter from A Court.  Sch 6 offence, and state opposed to
granting of bail for the applicants.
R/I/C to 20/122018 for
bail application.”
[87]
On 20 December 2018 the court noted on the
occasion of the appearance of both accused as follows:
“
Both
applicants before court.
Def:
to lead viva voce evidence in the matter.
Case
thus is crowded out, and R/I/C to 08/01/2018 for bail application.”
[88]
On 8 January 2019 the record indicates as
follows:
“
Both
applicants before court.
Def: New in the matter –
and has not had enough chance to consult with the applicants and is
thus applying for a remand of
the case.  Applicants to still
lead viva voce evidence in the matter.
PP:
No objection to the application.”
[89]
On 29 January 2019 the plaintiff again
appeared with his co-accused when the following was record:
“
Applicants
(1 & 2) before court.
Pp:
I/O has already filed the affidavit.
Def: Has taken sick and
thus not able to proceed with the matter, and has not yet consulted
with the applicants.
R/I/C
to 12/02/2019 for bail application.
Case
marked: Preferential.”
[90]
On 12 February 2019 both appeared before
the court again when the plaintiff indicated his election not to
apply for bail.
The magistrate’s notes read as follows:
“
Both
applicants before court in custody.
Matter
on the roll for bail application.
Due to
loadshedding, the State and defence apply for a postponement.
Defence – Applicant
No. 2 is abandoning bail at this stage.  Acc. No. 2 confirms the
information.
Case
is postponed to 18.02.2019 for bail application of applicant No. 1
Both
accused in custody.”
[91]
On 18 February 2019 the bail application of
the plaintiff’s co-accused was not dealt with due to the
“
lateness of the hour and roll
congestion
”.  The court
repeated the status that “
accused
no. 2 bail abandoned
.”
[92]
On 14 March 2019 the record reflects that
the following happened:
“
No.
2 Applicant before court
PP – Before court
for formal bail application.  Schedule 6 – State is
opposing bail and proceeding in motion.
Def –
Confirms appearance and pending case was withdrawn on the
07
th
/03/2019.
PP –
Applies for short adjournment to 19
th
/03/2019
to verify this information.
By
court – RIC to the 19
th
/03/2019
to verify any withdrawal of pending case.”
[93]
On 19 March 2019 both the plaintiff and his
co-accused appeared again when the following was noted by the court:
“
Applicant
before court
PP –
applies for the matter to be rolled over for I/O to 01
st
/04/2019.
Def –
confirms appearance and no objection.
By
court – both RIC to the 20
th
/03/2019
for I/O.”
[94]
On 20 March 2019 the following is noted:
“
Both
acc appear …
Both
schedule 6 offence
Bail
opposed.
Def –
applies for pp not feeling well.
Rem
I/C to 8/04/2019 & FBA at defence request
Sergeant Ngcatshe warned
to appear.
Both accused I/C.”
[95]
On 8 April 2019 the following is noted:
“
No.
2 applicant before court
PP –
May the matter be pp to 09
th
/04/2019
for formal bail application.
State
is opposing bail.
Schedule
6
Def –
confirms appearance and date is suitable.
By
Court – No. 2 RIC to the 09
th
/04/20219
for formal bail application.”
[96]
On 9 April 2019 the record indicates that
the following happened:
“
Applicant
before court
PP – Before court
for formal bail application.  Schedule 6 offence and State is
opposing bail by way of affidavits.
Def –
confirms appearance confirms and the Schedule – by way of
affidavit.
Digitally
recorded.
By
court – RIC to the 12
th
/04/2019
for investigating officer to check the status of applicant with
Department of Correctional Services.”
[19]
[97]
On 12 April 2019 the record shows as
follows:
“
Acc
No. 1. Applicant before court
PP –
before court for further evidence.
Def –
confirms appearance and ready to proceed.
Digitally
recorded.
By court – RIC to
the 24/04/2019 for bail judgment.
(Acc.
No. 2 – in custody bail abandoned.)”
[20]
[98]
On 24 April 2019 it is noted that:
“
Applicant
before court
PP –
before court for bail judgment.
Def –
confirms appearance.
Digitally
record.
Judgment
– bail denied.
Main
case – RIC to 03
rd
/06/2019
at “A” Court further investigations.
(Bail
denied)”
[21]
[99]
On 3 June 2019 the record reflects that the
accused were remanded in custody (bail refused and abandoned
respectively) for further
investigation to 8 July 2019 and to obtain
two witness statements.  The defence did not object.
[100]
The culminating entry is on 8 July 2019
when the charges were withdrawn.
[101]
Coincidentally the docket under CAS
130/11/2018 reveals that on 18 December 2018 supportive information
for bail report was downloaded
from SAPS’ criminal record
system.  This reflects, in respect of the plaintiff, not only
that he had previous convictions
for housebreaking and robbery, but
that there were several cases awaiting trial besides the two dockets
under scrutiny in this
matter.  The list is as follows:
“
CASES
AWAITING TRIAL
2011 EYG067
193/3/2011      INYIBIBA
HOUSEBREAKING
2018 RZB505 93/7/2018
INYIBIBA      ROBBERY
2018 RZB319
35/11/2018      INYIBIBA      THEFT
2018 SCK769
36/11/2018      INYIBIBA      THEFT
2018 RZB506
130/11/2018    INYIBIBA      ROBBERY”
[102]
As indicated in the outline of the
plaintiff’s testimony above, he failed to enlarge upon the
issue of his pending cases at
the time, preferring to lay the blame
squarely on the arresting officer for influencing his decision to
abandon bail and for having
conjured up the concept of a pending case
of theft which was not later verified.
Evaluation
of the evidence:
[103]
When
there are irreconcilable versions before the trial court it must draw
conclusions on disputed issues based on findings in respect
of the
credibility and reliability of the various witnesses, considered
together with the probabilities.
[22]
[104]
The plaintiff sought to create a
sensational hype around his arrest that the arresting officer behaved
like a scoundrel, forced
his way in through the door, failed to give
recognition to or respect his constitutional rights as an arrestee,
kept him in the
dark as to the fact of his arrest, prevailed upon him
to sign documentation without explanation, and that he then
purportedly influenced
or misled him into abandoning his application
for bail.  Not only is this against the general probabilities
and inconsistent
with the contemporaneous documentation completed by
Sergeant Ngcatshe evidencing a proper and rigorous process adopted by
him in
the course of his arrest and detention of the plaintiff, but
it is also inconsistent with the plaintiff’s own pleadings.
[105]
There
is not a murmur in them as to the supposed gross procedural
illegalities or that his constitutional rights were forsaken in

carrying out the arrest as he testified to.  There is also no
mention of the seminal defining complaint that Sergeant Ngcatshe
had
influenced his decision to abandon his bail application on some
pretext that did not exist or which had not been verified.

Indeed, the allegations in paragraph 8.5 of the particulars of claim,
at the height of the claimed culpable conduct, suggest the
reckless
promotion of a case absolutely lacking in any merit rather than the
case the plaintiff opportunistically sought to impress
upon the court
in his testimony which was to the effect that Sergeant Ngcatshe had
supposedly told him he would not get bail because
of a pending case
of
theft
.
[23]
[106]
Over and above the pending charge under CAS
93/7/2018, the plaintiff was vague or silent about the impediments
facing him that by
obvious implication would not have conduced to a
successful bail application.
[107]
He was ambivalent about the supposed
defence which he suggested ought to have persuaded Sergeant Ngcatshe
to investigate further
rather than resorting to the drastic option of
arrest.  On the one hand he claimed to have said that Mr.
Majavu’s belongings
were taken in lieu of security for
Siyabonga’s loss of his music system.  But he also
happened to mention in his testimony
that the complainant was
dispossessed of these in a “
scuffle
”.
He further added, forgetting what he had said about Siyabonga’s
music system, that he had tried to intervene
when Siyabonga wanted to
“
stab
”
the complainant, acknowledging in my view that the plaintiff had been
violently dispossessed of his property.
[108]
One would have expected the plaintiff to
lay the evidentiary basis for his claim that his further detention
was not justified or
was without just cause and legally caused the
harm suffered by him on the premises heralded in his particulars of
claim, but this
fizzled out to the insinuation that Sergeant Ngcatshe
had supposedly influenced him not to apply for bail on the basis of a
pending
charge.  Further, whereas it was required of him to be
clear about the pending charge which he says damned him to remain in

detention he was hopelessly vague about this aspect in his evidence
in chief.  It was ultimately argued on his behalf that
the
notion that there was a charge of theft was absolutely false, yet the
police’s database in fact confirmed two cases awaiting
trial on
theft charges.
[109]
Sergeant Ngcatshe by comparison made a
favourable impression on the court.  He is clearly a stern
minded individual who takes
his job very seriously and who goes the
extra mile.  His evidence made logical sense and was entirely
consistent with every
record produced in court that showcased his
meticulous handling of the plaintiff’s arrest.
[110]
Inasmuch as his version differed from the
plaintiff’s on the points that essentially matter, I accept his
denial that he told
the plaintiff that he would not get bail on
account of a pending charge of theft.  Indeed, on his version,
he was on leave
at the time of the plaintiff’s initial
appearance in court and left the matter to be dealt with by a
colleague.
[111]
The two prosecutors who testified also
incidentally delivered satisfactory accounts of how they dealt with
the prosecutions. They
were alive to the niceties of the law in this
respect and also mindful and sensitive of the accused’s
personal rights.
They readily made concessions where these were
necessary.  Indeed, both prosecutors impressed me as the
archetype of the competent
and conscientious public prosecutor that
one can have public confidence in.
The
plaintiff’s pleadings:
[112]
Before addressing the plaintiff’s
claims, it is necessary to say something about his pleadings.
[113]
There
is a similarity in the allegations in his particulars of claim with
those that were at the crux of the matter in
Mahlangu,
[24]
this apart from the generalized allegations that at their worst seem
to suggest the deliberate or reckless disguise of a hopeless
case.
In
Mahlangu
those facts carried the day and were especially egregious.  In
the plaintiff’s case one is left to wonder what exactly
the
police and prosecutors did to allegedly cause his post appearance
detention.
[114]
In every matter where there is a legality
enquiry into an arrest and detention, the facts are always unique and
it is important
that their relevance is consciously framed in the
particulars of claim from the outset.  That is because a
defendant needs
to know what the case is that he/she is required to
meet.  This is a basic rule of pleading.
[115]
Although detention as a distinct separate
act from arrest is by itself
prima facie
unlawful, detention on its own (especially past court appearances)
does not necessarily attract scrutiny unless there is something
about
it that is claimed to render it unlawful. There is in my view no
automatic obligation on the Minister of Police to have to
justify
detention consequent thereto in a vacuum or as a general coverall in
every claim for unlawful arrest and detention except
where a proper
basis is laid in the pleadings that invokes the obligation on him to
do so.
[116]
Whilst
every alleged intentional deprivation of liberty (speaking in the
context of an action for damages) puts an onus on the arrestor
to
show why the arrestee’s deprivation should not be regarded as
wrongful in law, a plaintiff who wishes to rely on extraneous

circumstances that his arrest and subsequent detention was unlawful
(such as for example where it is alleged that an arresting
officer
failed to exercise his discretion or that there was a procedural
irregularity in carrying out the arrest) is required to
plead a basis
therefor.
[25]
[117]
There
is also an obligation on a pleader to allege a basis for and
establish that the conduct of the defendant (such as is under

scrutiny by way of the required legality review) must have caused,
both legally and factually, the harm for which compensation
is being
sought under the
Actio
Iniuriarum.
[26]
[118]
The CPA has its own unique provisions in
Chapter 5 that deal with the manner and effect of arrest that brings
an arrestee’s
right to liberty into tension.  In section
39 (3) for example, concerning its legal effect, it is provided that:
“
(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.”
[119]
Section 40 provides for defined
circumstances in which a peace officer may arrest any person without
a warrant.  Section 40
(1)(b) of the CPA has been invoked for
present purposes.
[120]
Section 50 deals with the procedure after
arrest that must be adhered to so as to ensure that one who has been
deprived of his liberty
on the basis of an official arrest is not
unnecessarily restrained by the detention that is naturally
consequent upon such arrest.
[121]
So, for example, section 50 (1)(a) provides
that:
“
(1)  (
a
)  Any
person who is arrested with or without warrant for allegedly
committing an offence, or for any other reason, shall
as soon as
possible be brought to a police station or, in the case of an arrest
by warrant, to any other place which is expressly
mentioned in the
warrant.”
[122]
More significantly, section 50 (1)(b) and
(c) provides as follows regarding an arrestee’s right to apply
for bail:
“
(
b
)  A
person who is in detention as contemplated in
paragraph
(
a
)
shall,
as soon as reasonably possible, be informed of his or her right to
institute bail proceedings.
(
c
)  Subject
to
paragraph
(
d
)
,
if such an arrested person is not released by reason that
(i)
no charge is to be brought against him or her; or
(ii)
bail is not granted to him or her in terms of section 59 or 59A,
he or she shall be brought before a lower
court as soon as reasonably
possible, but not later than 48 hours after the arrest.”
[27]
[123]
In
terms of section 50 of the CPA, once an arrestee is brought to court
the police’s authority to detain, inherent in the
power of
arrest, is said to be exhausted.
[28]
[124]
Chapter 9 of the CPA deals with the
procedures to obtain bail and the rigors facing an accused who is
charged with a Schedule 6
offence.
[125]
In this regard it is necessary to state the
obvious hurdle that the plaintiff faced in this instance, made
provision for in section
60 (11)(a) of the CPA which provides, in
peremptory terms, as follows:
“
60
(11)  Notwithstanding any provision of this Act, where an
accused is charged with an   offence—
(a)
referred to in Schedule 6, the court shall order that the
accused be detained in custody until he or she is dealt with
in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies
the
court that exceptional circumstances exist which in the interests of
justice permit his or her release;”
[126]
The issue of liability for unlawful arrest
and detention (especially the element of causation necessary to be
established) is made
more complex by the fact that there are other
role players in the mix than just the Minister’s members who by
obvious implication
do the arresting which in turn factually conduces
to the detention implicating the deprivation of liberty.
[127]
Before
a court makes a deliberative decision on the continued detention of
an arrested person first comes the decision of the prosecutor
to
charge such a person.
[29]
The prosecutor in endorsing the prosecution must act with objectivity
and must protect the public interest in this process.
[30]
[128]
A
magistrate, as an officer of court, can also in egregious cases be
held accountable for dereliction of constitutional duties.
They
are required to apply their minds to the question of bail, which is
of utmost constitutional significance.
[31]
[129]
Amidst the public law duties on all of
these role players who bring their bit in the administration of
justice and pursuit of prosecution
there is admittedly over- or
under-reach but the multifarious nature of the trajectory that
follows upon arrest highlights the
need to be quite specific as to
who did what and when concerning what facet of that travail as well
as why and how each special
feature conduces to the harm complained
of for which compensation is being sought.
[130]
Since the CPA provides in section 39 (1)
that following a lawful arrest the ensuing detention is also lawful
and expected to remain
lawful throughout the entire period of an
arrested and detained person’s deprivation of liberty, a
plaintiff should therefore
be astute to plead (and ultimately prove)
the circumstances on which he/she relies to suggest that the
detention was unlawful,
or rather the moment from when and the
circumstances under which it became unjustified so to speak, and to
state what exactly constitutes
the factual basis for the claimed
infringement.
[131]
Where the suggestion implied by the facts
in question is that there was a breach of a public law duty in a
particular respect (by
a police officer or prosecutor or magistrate)
that has especially conduced to the harm, given the complexity of the
issue of liability
and the various role players who are
co-responsible, the court will ultimately have to determine where the
cause for the harm lies
and whether such conduct along the trajectory
might not be considered sufficient to break the chain of causation
vis-a-vis
the arrest and consequent detention.  This should also be
preempted in the pleadings.
[132]
This
obligation on the pleader to be quite specific accords with the
approach adopted by the Supreme Court of Appeal in
Sekhoto
[32]
to the effect that the general rule is that a party who attacks the
exercise of a discretion where the four jurisdictional facts
are
present bears the onus of proof.
[133]
The court in
Sekhoto
carefully considered the incidence of onus and explains why it should
be on a plaintiff in such a situation:
“
[49]
Does the Constitution require another approach? I think not.
A
party who alleges that a constitutional right has been infringed
bears the onus. The general rule is also that a party who attacks
the
exercise of discretion where the jurisdictional facts are present
bears the onus of proof. This is the position whether or
not the
right to freedom is compromised. For instance, someone who wishes to
attack an adverse parole decision bears the onus of
showing that the
exercise of discretion was unlawful. The same would apply when the
refusal of a presidential pardon is in issue.
[50]
Onus in the context of civil law depends on considerations of policy,
practice and fairness and if a rule relating to onus
is rationally
based it is difficult to appreciate why it should be
unconstitutional.
Hefer
JA also raised the issue of litigation fairness and sensibility.
It
cannot be expected of a defendant, he said, to deal effectively in a
plea or in evidence with unsubstantiated averments of mala

fides and the like, without the specific facts on which they are
based, being stated. So much the more can it not be expected
of a
defendant to deal effectively with a claim (as in this case) in
which no averment is made, save a general one that
the
arrest was ‘unreasonable’. Were it otherwise, the
defendant would in effect be compelled to cover the whole field
of
every conceivable ground for review, in the knowledge that, should he
fail to do so, a finding that the onus has not
been
discharged, may ensue. Such a state of affairs, said Hefer JA, is
quite untenable.
[51]
The correctness of his views in this regard is illustrated by the
judgment of the court below (para 35) where the court listed
matters
it thought the arrestor should have given attention to without his
having had the opportunity to say whether or not he
had done so. This
amounts to litigation by ambush, something recently decried by this
court.
45
[52]
One can test this with reference to the rules of pleading. A
defendant who wishes to rely on the s 40(1)(b) defence traditionally

had to plead the four jurisdictional facts in order to present a plea
that is not excipiable. If the fifth fact is necessary for
a defence
it has to be pleaded. This requires that the facts on which the
defence is based must be set out. If regard is had to
para 28 of the
judgment of the court below it would at least be necessary to allege
and prove that the arrestor appreciated that
he had a discretion
whether to arrest without a warrant or not; that he considered and
applied that discretion; that he considered
other means of bringing
the suspect before court; that he investigated explanations offered
by the suspect; and that there were
grounds for infringing upon the
constitutional rights because the suspect presented a danger to
society, might have absconded,
could have harmed himself or others,
or was not able and keen to disprove the allegations. But that might
not be enough because
a court of first instance or on appeal may
always be able to think of another missing factor, such as the
possible sentence that
would be imposed.
”
(Emphasis
added)
[134]
It
follows of course that this would properly attract an onus on the
first defendant to justify the plaintiff’s detention
caused
by
the pleaded feature
rather than him being expected to amorphously justify the obvious
interference with the plaintiff’s liberty.
[33]
[135]
To
return to the plaintiff’s pleadings these do not in my view
complain of any illegality other than in the generalized terms
set
out in paragraph 8.5, which were certainly not given any cogent flesh
in the plaintiff’s testimony.
[34]
[136]
Although the defendant should have asked
what relevant information was withheld and how the court was
purportedly misled, the tenor
of the allegations seem to be prefaced
on a hopeless case against the plaintiff that is devoid of reasonable
and probable cause,
nothing more and nothing less.
[137]
It was in my opinion not surprising that
the defendants pleaded broadly that the plaintiff’s detention
throughout was lawful
and that this was predicated on the arrest and
pre-court detention having been justified on the founding premise
that the arresting
officer reasonably suspected that the plaintiff
had committed a first schedule offence.  The first defendant has
added that
this
status quo
(namely that the charge continued to maintain its objective merit)
remained in place through the entire period of the plaintiff’s

detention.
Unlawful
arrest and detention:
[138]
The customary approach to be adopted in
determining the issue of the legality of the arrest itself and the
circumstances under which
an arrest without a warrant might in
principle be justified is made provision for
inter
alia
in section 40 (1)(b) of the CPA
which the defendant invoked in this instance to justify the
plaintiff’s arrest:
“
(1)
A peace officer may without warrant arrest any person –
(a)
…
(b)
whom he reasonably suspects of having
committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful
custody.”
[139]
The
requisite jurisdictional facts which must be in existence to justify
an arrest without a warrant are: (1) the arrestor must
be a peace
officer; (2) the peace officer must entertain a suspicion; (3) the
suspicion must be that the suspect committed an offence
referred to
in schedule 1; and (4) the suspicion must rest on reasonable
grounds.
[35]
[140]
It is not in contention that Sergeant
Ngcatshe is a peace officer within the meaning and contemplation of
section 1 of the CPA and
that, according to him, he suspected that
the plaintiff had committed the offence of robbery.  (He was
equally persuaded that
the plaintiff had committed the two counts of
robbery under CAS 93/07/2018 but the reasonableness of those charges
is not in issue
under claim 1.) It is furthermore not in contention
that the offence of robbery is an offence listed in Schedule 1 to the
CPA.
[141]
The
test whether a suspicion is reasonably entertained within the meaning
of s 40 (1)(b) of the CPA is objective.
[36]
In
this instance, would a reasonable man in Sergeant Ngcatshe’s
position and possessed of the same information have considered
that
there were good and sufficient grounds for suspecting that the
plaintiff, together with his co-conspirator, had committed

robbery.
[37]
[142]
In
Mabona
and Another v Minister of Law and Order and Others
[38]
the
court expounded upon the expectation of such a reasonable man
effecting an arrest without a warrant.
“
The
reasonable man will therefore analyze and assess the quality of the
information at his disposal critically, and he will not
accept it
lightly without checking it where it can be checked.  It is only
after an examination of this kind that he will
allow himself to
entertain a suspicion which will justify an arrest.”
[39]
[143]
Jones J in
Mabona
goes on to state what the threshold of such an examination is:
“
This
is not to say that the information at his disposal must be of a
sufficiently high quality and cogency to engender in him a
conviction
that the suspect is in fact guilty.  The section requires
suspicion but not certainty.  However, the suspicion
must be
based upon solid grounds.  Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion.”
[40]
[144]
Mr. Ngumle on behalf of the plaintiff urged
upon the court to find that a duty in fact existed on Sergeant
Ngcatshe to have gone
beyond what was stated in the complainant’s
founding statement because the three parties involved were supposedly
friends
and this might therefore have suggested that the robbery
complaint was not a real one.  Also, the plaintiff had said that
the alleged stolen property was in Siyabonga’s possession, this
supposedly pointing to an exculpatory explanation which Mr.
Ngumle
submitted Sergeant Ngcatshe ought to have followed up on.
[145]
Mr. Ngumle in his closing argument rightly
jettisoned the further intimation by the plaintiff given in his
testimony that he had
informed Sergeant Ngcatshe about Siyabonga
holding the complainant’s possessions as security for removing
Siyabonga’s
music system.
[146]
As an aside, I repeat that am satisfied
that this was a fabrication that falls to be rejected out of hand.
Sergeant Ngcatshe
denied that such an explanation had been furnished
to him by the plaintiff at all. In weighing up which of the two
versions to
accept in this respect the plaintiff’s version is
improbable against the background that he said nothing of the sort
when
he was formally charged and made his warning statement.
Siyabonga notably did not offer such a defence himself either but

instead suggested that the one who was in the know as to the
whereabouts of the complainant’s property was the plaintiff.

The fact that Sergeant Ngcatshe drove around to find Siyabonga (not
“
Fire
”
as the plaintiff said he had), was already an accommodation to find
the complainant’s possessions purportedly with
his
co-perpetrator.  Sergeant Ngcatshe had, however, already by
then, arrested the plaintiff on the basis of his role and
complicity
in the matter.
[147]
For the rest Sergeant Ngcatshe carefully
considered the complainant’s statement, appraised that all the
elements of robbery
were in the offing, had checked the facts with
Mr. Majavu personally and had given thought to the idea that even if
the complainant’s
clothes were to be found with the Siyabonga,
that the both of them were in any event involved and were equally
culpable (i.e. common
purpose was at play).
[148]
There was therefore in my view no need to
substantiate his suspicion reasonably formed on the basis of what he
had been told by
the complainant by any further investigation.
[149]
In summary, Sergeant Ngcatshe formed his
own suspicion after having read the complainant’s statement,
which he also verified
with the latter. His explanation for why he
arrested the plaintiff reveals that he carefully applied his mind to
the question whether
the complainant had properly implicated him in
the commission of the offence. He weighed up the necessary elements
of the offence
and also understood the concept of common purpose and
its relevance to the factual scenario pertaining. Even though the
plaintiff
had intimated that the stolen property was in the
possession of Siyabonga, it made no difference to him because in his
view the
plaintiff had also played a role in dispossessing the
complainant of his clothing and wrist watch at knife point.
Objectively he
cannot be criticized for including the plaintiff as a
suspect on the basis of the complainant’s statement even if the
stolen
property was purportedly in Siyabonga’s possession.
[150]
The
subsequent withdrawal of the charge against the plaintiff is also
neither here nor there and does not affect the lawfulness
of the
plaintiff’s preceding arrest.
[41]
All
that was required to be established for Sergeant Ngcatshe’s
purposes was whether there was a suspicion based on solid
grounds,
not a basis that established proof beyond a reasonable doubt.
[151]
In the result I conclude that Sergeant
Ngcatshe entertained a reasonable suspicion that the plaintiff had
committed the offence
of robbery with aggravating circumstances,
which justified the arrest of him without a warrant under all the
circumstances at least
until his first appearance in court.
(The issue of his detention pre-court arrest accordingly bears no
further scrutiny since
no allegations extraneous to the arrest were
made that his detention, up until that point, was unjustified or
without just cause.)
The
discretion to arrest:
[152]
It
is so that the matter does not end there because once the required
jurisdictional facts are present a discretion whether or not
to
arrest arises.
[42]
Although
section 40 (1) (b) of the CPA gives peace officers extraordinary
powers of arrest and such powers necessarily avail in
the fight
against crime, these must be sensitively counterbalanced against the
arrested person’s constitutional rights of
personal liberty and
dignity. A court will therefore carefully scrutinize in each case
whether the infringement of these rights
was legally in order.
[43]
[153]
The purpose of an
arrest is to bring a suspect before court.  If the arrest is
effected for a purpose other than this, or for
another purpose which
does not fall within the jurisdictional framework of section 40,
the arrest will be unlawful for that
reason alone.
[154]
The plaintiff in his particulars of
claim vaguely asserted that the arresting officer had failed to
exercise his discretion. In
argument Mr. Ngumle submitted that it was
“
patently clear
”
that Sergeant Ngcatshe did not exercise his discretion at all with
regard to the “
less invasive
means
” than the warrantless
deprivation of the plaintiff’s liberty and freedom of movement,
but this overlooks the serious
nature of the offence with which the
plaintiff was charged.
[155]
The general tenor of Sergeant Ngcatshe’s
evidence went exactly about achieving the legitimate purpose of
bringing the plaintiff
to justice for that offence by taking him to
court.  He also implied that there was no less invasive means of
doing so given
that the plaintiff had successfully managed to avoid
arrest for a considerable period under CAS 93/07/2018 despite having
a fixed
address.
[156]
I find no overreach or any improper
exercise of his discretion by failing to have considered less
invasive means of bringing the
plaintiff to justice.
[157]
In
this regard peace officers are entitled to exercise their discretion
as they see fit, provided that they stay within the bounds
of good
faith and rationality.  This standard is not breached because an
officer exercises the discretion in a manner other
than that deemed
optimal by the court.
[44]
[158]
In
a rationality enquiry, the critical enquiry, as suggested by Harms JA
in
Sekhoto
,
[45]
should not be focused on the manner of the arrest but rather the
rationale for the arrest.  He made this clear when he remarked

upon the limited role of the peace officer in the process of making
an arrest as follows:
“
While
the purpose of arrest is to bring the suspect to trial the arrestor
has a limited role in that process. He or she is not called
upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or, in some cases a
senior officer).
The purpose of the arrest is no more than to bring the suspect before
the court (or the senior officer) so as
to enable that role to be
performed. It seems to me to follow that the enquiry to be made by
the peace officer is not how best
to bring the suspect to trial: the
enquiry is only whether the case is one in which that decision ought
properly to be made by
a court (or the senior officer). Whether his
decision on that question is rational naturally depends upon the
particular facts
but it is clear that in cases of serious crime –
and those listed in Schedule 1 are serious, not only because the
Legislature
thought so – a peace officer could seldom be
criticized for arresting a suspect for that purpose.”
[46]
[159]
As
in
Sekhoto,
the opinion was formed in the present matter concerning a serious
offence (robbery with aggravating circumstances) and one in respect

of which the legislature has deemed it proportional to arrest without
a warrant.
[47]
Therefore,
the mere nature of the offence justified the arrest of the plaintiff
for purposes of bringing him to justice.
The
suggested procedural illegalities:
[160]
In the light of my preferring Sergeant
Ngcatshe’s testimony to that of the plaintiff’s, I find
no breach of any procedure
on the part of Sergeant Ngcatshe in
effecting the plaintiff’s arrest.  To the contrary I
consider that he was very much
focused on doing things properly and
respecting the plaintiff’s constitutional rights.
The
plaintiff’s continued detention:
[161]
I have elsewhere reflected on the limited
and/or confusing nature of the pleaded grounds for the action set out
in paragraph 8.5
of the plaintiff’s particulars of claim.
[162]
The plaintiff, when he testified, did not
even bother to identify in the record what had in fact happened at
each appearance in
court. A synopsis of the court record, however,
reveals that he was legally represented when he made the decision to
abandon his
bail application on 12 February 2019.  Although
between the 3
rd
of December 2018 and the 12
th
of February a bail application could notionally have been pursued by
him, he did not seek to suggest in his particulars of claim
that his
detention at that time was especially occasioned by any breach of
public duty.  Further and in any event, it seems
to have been
accepted that the fact that he had been arrested under CAS 93/7/2018
for robbery with aggravating circumstances and
appearing in court
under the constraint of his being in custody in those proceedings
constituted a pending case and an objective
reason on its own as to
why he would not succeed in getting bail.  Once those charges
were withdrawn, it appears that he again
elected not to pursue any
bail application in the case under contention.  His co-accused
went ahead without him.  He
did not elucidate in his testimony
why he made that election (except again to put the blame on Sergeant
Ngcatshe), but again, objectively
speaking, there were other cases
mentioned in the SAPS report which were marked as pending cases that
would also have impaired
his chances of succeeding in a bail
application.
[163]
For
this reason, no fault can be attributed to any representative of the
State for his being held in custody.
[48]
[164]
The highwater mark of the plaintiff’s
case is that Sergeant Ngcatshe supposedly influenced the plaintiff
not to apply for
bail because of a supposedly non existing pending
case of theft, but as I have indicated above, I do not accept this as
plausible.
[165]
Neither can Sergeant Ngcatshe’s
concession made during cross examination that he may have
misconceived the question in the
bail information form that resulted
in him suggesting that the plaintiff was a flight risk
opportunistically
ex post facto
be taken to be the foundation of the plaintiff’s case
underpinning the claimed illegality of his detention since this
feature
was not pleaded as being proximal to his continued detention.
[166]
The plaintiff’s evidence does not
establish the legal causation contended for on his behalf.
Further and in any event,
it was not anything contained in the form
that conduced to the plaintiff’s continued detention.  By
his own admission
he abandoned his bail application (duly
represented).  He was further objectively precluded from being
released by reason
of the case prosecuted against him under CAS
93/07/2018.
[167]
The circumstances in this matter are
certainly not on par with the egregious ones that hampered the fate
of Messrs. Mahlangu and
the late Mr. Mtsweni in the
Mahlangu
matter from being able to be released on bail.  The premises for
the plaintiff’s arrest and detention in this instance
were
founded on a real charge (not an engineered one as in
Mahlangu
)
that carried with it reasonable and probable cause throughout.
There was, objectively speaking, nothing tenuous about the
underlying
reason for his arrest, or further detention.
[168]
There is further, as I have found, no
culpable misconduct on the part of Sergeant Ngcatshe that led to the
plaintiff’s ongoing
detention.
[169]
On both scores then, claim 1 ought to fail.
The
malicious prosecution claim:
[170]
The
plaintiff bore the onus resting on him in respect of this claim to
allege and prove that that the defendants instigated the
proceedings;
that in doing so they had no reasonable and probable cause; that they
acted
animo
injuriandi
,
and that the prosecution failed.
[49]
The
last of these elements is not in dispute.
[171]
Reasonable
and probable cause in the context of this claim means “
an
honest belief found on reasonable grounds that the institution of
proceedings is justified
”.
The concept involves a subjective and an objective component.
[50]
[172]
Where
reasonable and probable grounds for an arrest or prosecution exists
the conduct of the defendant instigating it is not wrongful.
[51]
[173]
The
contemporary approach is that although the expression “
malice
”
is used, the remedy in a claim for malicious prosecution lies under
the
Actio
Injuriarum
and what has to be proved is
animus
injuriandi
.
[52]
[174]
This
element may be proven by establishing that despite an appreciation
that his actions were wrongful a defendant acted recklessly
although
not negligently.
[53]
The
degree of culpability required was expounded upon in
Minister
of Justice and Constitutional Development v Moleko
as
follows:
“
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as to
the consequences of
his or her conduct (dolus eventualis).  Negligence on the part
of the defendant (or, I would say, even
gross negligence) will not
suffice”.
[54]
[175]
There is simply nothing of the kind in this
instance.  The records speak for themselves and I accept the
evidence of the prosecutors
that they exercised their discretions
objectively on the basis of the information that was before them in
the dockets.
[176]
The evidence failed in my view to establish
that the defendants acted with malice (
animo
iniuriandi
) in leaving it up to the
court to determine the plaintiff’s fate pending the trial and,
even if the outcomes ultimately went
in his favour, this does not
detract from the objective soundness of both charges.
Conclusion:
[177]
In the premises I make the following order:
1.
The plaintiff’s claims are dismissed,
with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
4,
5 & 7 June 2022, 3, 5 & 10 October, 13 & 14 November
2023
HEADS
OF ARGUMENT
18
November 2023
DATE
OF JUDGMENT
26
April 2024
Appearances:
For
the plaintiff:
Mr.
L L Ngumla instructed by Masiso Attorneys Inc., East London (Ref.
BM004/LZ)
For
the defendants:
Mr.
N D Ngadlela instructed by The State Attorney, East London (Ref.
Mr Isaacs)
[1]
The
particulars of claim allege that the plaintiff’s first
appearance was on the 4
December
2018 but the J15 and annexures indicate that this happened on 3
December 2018. The charge sheet reflects that the plaintiff
as
accused no. 2 together with Mr. Siyabonga Piyo were charged with
robbery with aggravating circumstances it being alleged that
on 28
November 2018 at NU 14, Mdantsane they unlawfully and intentionally
assaulted Lindela Majavu and did then and there by
force take
certain items from him, his lawful property, aggravating
circumstances being present in that they stabbed the complainant

with a knife.  The items taken were said to be a Nike jacket
and “
tekkies
”
plus a gold wristwatch, total value R2 140.00. The charge is
certainly one included in schedule 1 of the Criminal
Procedure Act,
No. 51 of 1977 (“
CPA
”).
It also, by obvious implication, resorts under Schedule 6 for bail
purposes.
[2]
In
this matter the accused are charged with “
aggravated
robbery
”
according to the face of the J15 (which case record only made an
appearance before this court mid-trial on 17 November
2022) but no
charge sheet features.  The record of these proceedings show
that the charge/s were considered by the presiding
officer (even
before the plaintiff was added as an accused) to be “
schedule
6
”.
The page of the record which would have signified when the plaintiff
was added to the mix is missing but the next
entry recorded is on 11
December 2018 on which date it is written that “
both
accused are before court.  Both accused abandoned bail
”.
The accused were remanded in custody to 14 December 2018.  On
that date both were present again when the case
was transferred to
the regional court in terms of section 75 (1) of the CPA.  It
appears from the corresponding docket under
CAS 93/07/2018 that a
third person by the name of Ayanda April was added as an accused on
13 January 2019.  Also discovered
relative to these proceedings
after the plaintiff had testified is the regional court record case
no. RC1/01/19.  The J15
and annexures in it reflect that the
accused were charged with two counts of robbery with aggravating
circumstances.  The
first count alleges that on 20 July 2018 at
or near 21 NU 16, Mdantsane, the accused assaulted Ms. Siyuvile
Sonqwelo and with
force took monies (R200.00) and a cell phone from
her, the aggravating circumstances being that the complainant
(incorrectly
described as a male person) was stabbed with a knife.
Count 2 reads that on 21 July 2018 and at or near NU16, Mdantsane,

they assaulted the same person and forcibly took R100.00 cash off
her, the aggravating circumstances alleged being that they
stabbed
her with a knife.
[3]
The
regional court case record, discovered late in the proceedings
confirms that the plaintiff and his co-accused Mayikana were

discharged pursuant to an application in terms of section 74 of the
CPA on 13 March 2019.
[4]
The
official records reveal that schedule 6 offences were on the table.
This is an obvious mistake in the pleadings.
[5]
The parties agreed in the pre-trial processes that the documentation
discovered would serve as evidence of what those documents
purported
to be without admitting the contents thereof.   No
challenges emerged at the trial as to the authenticity
of any of the
documents that served before court.
[6]
See
De
Klerk v Minister of Police
2020 (1) SACR (1) (CC) at para [63].  See also
Mahlangu
& Another v Minister of Police
2021
(7) BCLR 698
(CC) where it was not hard to envisage that the
egregious conduct of the police (who obtained a false confession
from the plaintiff
through torture and coercion to justify the
arrest in the first place and then “
cunningly
engineered
”
their continued detention by misrepresenting the true state of
affairs to the prosecutor) materially led to the plaintiff’s

further detention.
[7]
It
is common cause that this was his co-accused, Mr. Siyabonga Piyo,
referenced in the charge sheet in case no. A1830/18.
[8]
The
alias
of Ayanda April is “
Fire
”
according to the SAPS 14A form filed concerning such accused in CAS
93/07/2018.  The latter suspect was arrested
on 13 January 2019
according to the docket, but his name does not feature in the court
record after as being a participant in
the trial, even though the
witnesses in their police statements spoke of “
Fire
”
as being the primary perpetrator of the robberies.  This
anomaly is however not something I need enquire into or
resolve.
[9]
In
his evidence in chief he and Mr. Ngcatshe appear to have been at
cross purposes about the so-called pending case.  In
my opinion
the plaintiff understood the pending case to be the one pre-referred
under CAS 93/7/2018 because it was on 13 March
2019 when he was
discharged in those proceedings.  He suggested that the
hindrance of the pending case persisted until “
14
March 2019
”
(sic).
[10]
This
is included amongst the documentation entered into evidence.
See Bundle A at pages 57 – 58.
[11]
Bundle
A at pages 97 – 99, 113 – 115 and 116 – 117.
[12]
Bundle
A at pages 60 – 61.
[13]
This
is because the covering affidavit of the doctor was only
commissioned on 7 December 2018.
[14]
It
was coincidentally put to the witness that the plaintiff never
volunteered to him that he had a pending case of theft suggesting

that the notion of a case of theft had emanated from Sergeant
Ngcatshe himself.
[15]
Why
the charge had been withdrawn was glossed over in the evidence. In
the original docket provided at the court’s insistence
however
(the contents of both had been discovered), Sergeant Ngcatshe had
filed the customary letter to the complainant reporting
on the
outcome of the matter in which it is explained that the “
complainant
withdrew at court
”.
What is recorded in the court record on that date is as follows:
“
PP:
State is withdrawing charges no prospect of successful prosecution
”.
The fact that the charge was withdrawn at court is also indicated on
the face of the J15 with no elaboration provided.
This
indication in the documentary evidence does not detract from the
admission made in the plea (without any elaboration) that
the
prosecution in respect of this charge was terminated in the
plaintiff’s favour but it does go to the elements of malice

and reasonable and probable cause because objectively there was
evidence to sustain the prosecution until the complainant withdrew

it at court.  It also goes to the reliability of the witnesses’
view that the charge in his opinion otherwise had
objective merit.
[16]
This
statement would have been available to the witness at the time of
the plaintiff’s first appearance and would have been
a further
indicator that there was merit in enrolling the matter.
[17]
There
was no transcript available of the proceedings.  The
magistrate’s notes are sketchy.
[18]
Ms.
Songwelo did not testify in the present matter so the extent of her
acquaintance with the plaintiff was not interrogated neither
the
reason why she did not name him until her second statement
clarifying the events.  Mr. Jack however had both statements
at
his disposal when he enrolled the matter for trial and there was
evidently nothing sinister in the fact that the clarifying
statement
had been somewhat delayed because the complainant was working away
from home at the time.
[19]
It
was evident that the proceedings on this date did not relate to the
plaintiff.
[20]
It
was conceded that this application related to the plaintiff’s
co-accused.
[21]
The
appearance self-evidently did not relate to the plaintiff.
[22]
National
Employers General Insurance v Jagers
1984
(4) SA 437
(E) at 440 – 441
;
Stellenbosch Farmer’s Winery Group Ltd and Another v Martell
et Cie and Others
2003 (1) SA 11
(SCA) at 14 H – J.
[23]
This
is not the “
misleading
”
contended for in the particulars of claim.  Evidently what the
defendants were purportedly being mum about (so the
particulars of
claim allege) is that the case against the plaintiff was bad to the
core.
[24]
Supra.
[25]
See
Jacobs v Minister of Safety and Security
CA
327/2012 [2013] ZAECGHC 95 (23 September 2013) at para [41].
[26]
See
De
Klerk Supra
at
para [14] where the elements of the delict are listed.
[27]
It
is common cause that section 59 or 59A are not of application in
this instance.
[28]
Minister
of Safety and Security v
Sekhoto
&
Another
2011 (1) SACR (1) (SCA) at para [42].
[29]
See
E du Toit, FJ de Jager, A Paizes, A St Quintin Skeen & S van de
Merwe
Commentary
On the
Criminal Procedure Act
(2013
)
at 1-4O.
[30]
See
Carmichele
v Minister of Safety and Security and Another
(centre
for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2002 (1) SACR 79
(CC) para 72.
[31]
De
Klerk Supra
at
para [88].
[32]
Supra
at
para [49]
[33]
Mahlangu
supra
at
para [31].
[34]
In
the present instance although the allegations made in paragraph 8 of
the particulars of claim as to breaches suggest distinct
delictual
acts, the details expounded upon in
section 8.5
seem to rather be in
support of the issue of legal causation and speak to why the
continuing detention should not be found to
be too remote from the
damages clamed.  It is however confusing (if the individual
allegations are read with the introductory
paragraphs that allude to
the defendants owing the plaintiffs a duty of care) that the second
defendant is not alleged in the
particulars of claim to be liable
under Claim 1, yet this is what the plaintiff argued for
ultimately.  In my view these
pleadings should have been
challenged before the trial proceeded in order to better understand
and appreciate the plaintiff’s
case.  The allegations
were generic and the plaintiff’s testimony very superficial.
[35]
Duncan
v Minister of Law & Order
1986 (2) SA 805
(A) at 8181 G – H and
Minister
of Safety and Security v Sekhoto & Another
2011 (1) SACR 315
(SCA) at paras [6] and [28].
[36]
Minister
of Safety and Security & Another v Swart
2012 (2) SA SACR 226 (SCA) at [20];
S
v Nel & Another
1980 (4) SA 28
(E) at 33H.
[37]
R v Van
Heerden
1958 (3) SA 150
(T) at 152;
S
v Reabow
2007 (2) SACR 292
(E) at 297 c – e.
[38]
1988 (2) SA 654 (SE).
[39]
At
658 G.
[40]
At
658 H.
[41]
Victor
v Minister of Police
(unreported GP case no. 39197/2011, dated 22 October 2014 at [49] –
[50]).
[42]
Minister
of Safety and Security v Sekhoto and Another
2011 (5) 367 (SCA) at para [25].
[43]
Minister
of Law and Order v Dempsey
1988
(3) SA 19
(A) at 38 C.
[44]
Sekhoto
Supra
at para [39].
[45]
Supra
.
[46]
Sekhoto
Supra
at para [44].
[47]
As
was stated in
Sekhoto
at para [25] it could hardly be suggested that an arrest under the
circumstances set out in section 40 (1) (b) could amount to
a
deprivation of freedom which is arbitrary or without just cause in
conflict with the Bill of Rights.
[48]
Minister
of Safety and Security & Another v M Schuster & Another
[2018]
ZASCA 112
(13 September 2018) at para [15].
[49]
Minister
of Justice and Constitutional Development v Moleko
2008
(3) SA 47 (SCA).
[50]
Moleko
supra
at
53 C.
[51]
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
at 382a.
[52]
Rudolph
v Minister of Safety and Security
2008 (5) SA 94
SCA at par [18].
[53]
Rudolph
supra
at par [28]
[54]
Para 64.