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2024
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[2024] ZAECQBHC 37
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Vitshima v Minister of Police and Another (2496/2020) [2024] ZAECQBHC 37 (30 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
NOT REPORTABLE
Case no: 2496/2020
In the matter between:
XOLILE ARNOLD
VITSHIMA
Plaintiff
and
MINISTER OF POLICE
First Defendant
THE NATIONAL DIRECTOR
OF PUBLIC
Second Defendant
PROSECUTIONS
JUDGMENT
Govindjee J
[1]
The plaintiff was arrested without a
warrant sometime late on 6 August 2019. He was detained at the
KwaZakhele Police Station until
taken to court on 8 August 2019.
Pursuant to the order of the presiding magistrate, the plaintiff was
remanded in custody and detained
from 8 August to 16 August 2019.
Following a bail hearing on that date, the plaintiff was released,
bail being set at R500. The
prosecutor withdrew the criminal case
against the plaintiff on 23 January 2020.
[2]
The plaintiff’s action is for damages
in the amount of R800 000, based on unlawful arrest, detention
and malicious prosecution.
Absolution from the instance was granted
in respect of the claim for malicious prosecution. The reasons for
that decision were
provided
ex tempore
.
The arguments of the parties in respect of the various remaining
components of the action have been usefully summarised in a detailed
statement of issues, extracts of which appear below.
Unlawful
arrest
The
pleadings and evidence
[3]
It
is alleged that the arresting officer(s) invoked the power to arrest
for unlawful purposes and without considering the plaintiff’s
explanation, the absence of sufficiently strong evidence to warrant
arrest without a warrant and the availability of less drastic
measures to secure his attendance at court. It is also averred that
the arresting officer(s) failed to exercise any discretion
in
effecting the arrest, did not consider whether the plaintiff’s
detention was necessary and ignored the plaintiff’s
constitutional rights. The main issue in dispute is whether the
arresting officer entertained a reasonable suspicion that the
plaintiff had committed murder, a schedule 1 offence.
[1]
[4]
Captain Makaula, a captain in the South
African Police Service (SAPS), testified that he had been a detective
since 1993. He had
been part of a cluster that investigated mob
justice related murder cases. One such murder had occurred on 29 July
2019 in Stofile
Street, when Mr Nkosi had been assaulted and burnt to
death.
[5]
Captain Makaula identified one of the
eye-witnesses as Mr Schultz, who deposed to a statement before him on
31 July 2019. In essence,
Mr Schultz indicated that he had stood at
the door of his flat at approximately 10h30 when he heard shouting.
About 100 men and
women were observed. They passed his flat and
grabbed Mr Nkosi, who was his friend, walked away with him and
assaulted him in various
ways.
[6]
The mob returned after approximately 45
minutes. Mr Nkosi had injuries on his face and head. Mr Schultz
handed over a cell phone
that had been given to him by Mr Nkosi to a
lady who was part of the mob. The mob proceeded across the road and
assaulted Mr Nkosi
at an open space at Stofile Street. He observed
the assault. This included the mob’s attempts to place a tyre
on Mr Nkosi,
a cement block was dropped onto Mr Nkosi’s head
and his body was set alight. Mr Schultz then returned to his yard.
[7]
Four men subsequently visited Mr Schultz
and took him to a meeting, where he was engaged about his conduct and
given various instructions.
He was told who could be invited to
his home and ordered to attend a further meeting later that day. Mr
Schultz fell asleep
and missed the appointed time. As a result, an
angry mob, allegedly including persons involved in attacking Mr
Nkosi, visited him
and took him to a second meeting. He was
instructed to engage with a person who was suspected of being part of
robberies in the
area, and did so once he was permitted to leave the
meeting.
[8]
Mr Schultz conveyed to Captain Makaula that
he recognised a few of the faces that had been part of the mob. He
did not know their
names or addresses but knew that the people
resided in his neighbourhood, KwaZakhele. The arrangement was that Mr
Schultz would
somehow establish the addresses of those people that he
knew. The two communicated with each other by mobile phone. At some
point
Mr Schultz indicated that he had obtained the addresses of the
suspects.
[9]
Captain Makaula followed this up and
arranged for Sergeant Mto and members of the uniform branch to
accompany him as back up. He
and Sergeant Mto fetched Mr Schultz and,
based on the information he provided, arrested some suspects in
KwaZakhele. At approximately
23h30 the group proceeded to the
plaintiff’s address and knocked on the door. The lights of that
premises were on. Mr Schultz
identified the person who opened the
door as a person who was involved in the mob attack. Captain Makaula
and Sergeant Mto introduced
themselves and arrested the plaintiff for
the murder in Stofile Street. The plaintiff dressed and accompanied
Captain Makaula and
Sergeant Mto to the police van, while they
informed him of his rights.
[10]
Captain Makaula also made various
contemporaneous notes in his pocketbook while effecting the arrests.
The entries confirm his version
of events and the manner in which he
proceeded that evening. He had picked up Mr Schultz at approximately
22h21. Mr Schultz had
managed to obtain the locations or addresses of
the suspects that had allegedly participated in the murder. He knew
these people
by sight and would take Captain Makaula to their
addresses. One of the first suspects was not at home. Captain
Makaula was
given his number by a resident. The person who answered
the call directed him to where he was walking with a group of men in
the
street. Captain Makaula stopped his vehicle in front of them and
the witness pointed out two men who were allegedly involved in
the
murder. He walked to the two men and informed them of their arrest
for murder. One of the suspects indicated that he knew nothing
about
the murder. Captain Makuala then returned to the vehicle where Mr
Schultz was seated and verified the information he had
provided. He
was then told that this was the person who had used the ‘cement
brick’ to assault the deceased on the
head and that Mr Schultz
was sure of his identity. Mr Schultz was, on each occasion, able to
link the suspect to specific conduct
that he had observed during the
commission of the murder, such as assault with a stick, assault with
stones or assault with a cement
brick.
[11]
The
entry in respect of the plaintiff was marked as ‘23h48’
and reflects that Mr Schultz indicated that the plaintiff
had been
one of the people who had assaulted the deceased with a stick.
[2]
Captain Makaula explained that he had made notes with reference to
his watch and the time indicated in his motor vehicle.
[12]
A second statement was taken from Mr
Schultz approximately 24 hours later. That statement further confirms
Captain Makaula’s
evidence as to the process followed in
arresting the various suspects. Mr Schultz indicated in the statement
that the various suspects,
including the plaintiff, had been pointed
out by him because they were party to the mob and had taken part in
assaulting and burning
the deceased.
[13]
Captain Makaula explained that he had
believed Mr Schultz because he had been present at the time of the
incident and had spent
time with members of the mob when they took
him to a meeting, spoke to him and returned to collect him for a
second meeting later
that day. These encounters had occurred during
the day, so that Captain Makaula was of the view that he had ample
time to identify
the perpetrators. The fact that the incident itself
had occurred during the day and was observed by Mr Schultz also
played a role
in the exercise of his discretion, as did the
seriousness of the crime. Mr Schultz confirmed his identification and
pointing out
under oath, and Captain Makaula deposed to a statement
explaining the process followed. He emphasised during evidence that
deliberately
took Mr Schultz with him to arrest the suspects to
ensure that there was no mistaken identification.
[14]
Ms Vuso, another eye-witness to the
incident, deposed to a statement in front of Captain Makaula on 1
August 2019. She indicated
that she would be able to identify four
people from the mob. Captain Makaula testified that an identification
parade was planned
on an unspecified date after the arrest of the
suspects.
[15]
Captain Makaula emphasised that each case
was unique and to be treated on its merits. It was not possible to
investigate or double-check
the addresses provided by Mr Schultz
given that the circumstances were such that the accused persons’
names were unknown.
He had little concern that it had taken six days
for Mr Schultz to revert with the addresses of the suspects, as he
had done so
voluntarily. Similarly, the lack of description of the
suspects in Mr Schultz’s first statement was not a matter of
concern,
as this was unnecessary.
[16]
Captain Makaula explained that he had not
made any efforts to ascertain the process followed by Mr Schultz, on
the basis that Mr
Schultz lived in the vicinity and would be able to
identify the suspects. He conceded, upon reflection, that his
approach might
have differed, in that he could have obtained the
names of those persons to be arrested. He subsequently testified that
Mr Schultz
had advised him in the vehicle en route to effect the
arrests that he had not managed to ascertain the names of the
suspects, but
was certain of their faces and where they resided. Mr
Schultz was also able to describe the role played by the suspects
during
the mob attack, Captain Makaula having instructed him to
identify only people who were ‘perpetrators’ in the
attack
on the deceased.
[17]
The gist of Captain Makaula’s
testimony as to the process leading up to the arrest of the plaintiff
was confirmed by Sergeant
Mto when he testified. Sergeant Mto
recalled that Captain Makaula had engaged with Mr Schultz in the
vehicle en route to arresting
the suspects, and questioned him about
his level of certainty. Mr Schultz indicated that he was sure of the
various suspects and
where they stayed, and proceeded to lead the
police officers to those addresses.
[18]
On the plaintiff’s version, three
police officers wearing civilian clothing knocked at his door and
asked about a person known
as ‘China’. He informed them
that he was not ‘China’ and pointed out where China
lived. He was told to
prepare to be taken to the police station. At
the police station, he was asked about a murder that occurred on 31
July 2019 and
replied that he knew nothing. His girlfriend testified
that she was watching television when the police arrived. She
conceded that
she could not hear the conversation between the
plaintiff and the police. The plaintiff had told her at the time that
the police
were looking for China.
Assessment
of the evidence
[19]
In
so far as there are mutually irreconcilable versions as to the
circumstances surrounding the arrest, applying the usual approach
these must be resolved in favour of the version of the first
defendant (‘the Minister’).
[3]
The evidence of Captain Makaula is corroborated by the testimony of
Sergeant Mto and accords with the available documentary evidence
as
to the events of the evening in question. Their evidence was
credible, truthful and ultimately more probable. In particular,
Captain Makaula was an excellent witness, measured in his responses
and able to concede certain points adverse to the Minister’s
case.
[20]
Although the plaintiff remained steadfast
in his version as to the police enquiring about ‘China’,
that version stands
on its own and does not accord with the
probabilities. The plaintiff’s recollection of events was, at
times, poor. He was
confused as to dates and times and some of his
responses during cross-examination were implausible and evasive. The
assertion that
he informed the police that he had been at work at the
time of the murder was unsupported by the available documentation,
notably
the plaintiff’s warning statement and bail application
affidavit. His version that he was not given any chance to say
anything
at the police station is unlikely. Instead, it must be
accepted that he exercised his right to remain silent and advised the
police
that he would speak in court with a legal representative.
Despite earlier statements to the contrary, the plaintiff eventually
conceded during cross-examination that this is what occurred. It must
be accepted that the plaintiff did not inform the police that
he had
employment and was at work at the time of the murder.
[21]
The testimony of Ms Ntontela, the
plaintiff’s girlfriend, was wholly unreliable and adds nothing
to the plaintiff’s
version in this respect. She initially
testified in a manner that suggested that she had heard the police
enquire if the plaintiff
was China. She repeated this during her
evidence-in-chief and cross-examination. In fact, subsequent
questioning revealed that
she had seemingly not heard the
conversation at all and that her testimony was based on what the
plaintiff had told her. In addition,
she maintained that the officers
at the door were in uniform when all other evidence suggests the
contrary. She also had no qualms
about changing her evidence from one
minute to the next in respect of the lighting in the room. She
reverted during further cross-examination
to her initial position
that the lights in the room were off and the police were using their
torches. This version contrasted that
of the plaintiff and the police
and cannot be accepted. The evidence of Mr Mncedisi Booi, the
plaintiff’s friend, also does
not support his case. He
apparently only saw the plaintiff at approximately 18h00 on the day
of the murder and was then told that
the plaintiff was returning from
work.
[22]
The probabilities favour the conclusion
that Mr Schultz accompanied the two police officers, who were in
plain clothes, to the plaintiff’s
address, having already
assisted them to arrest other suspects. The lights were on when the
door was opened by the plaintiff and
Mr Schultz identified and
pointed him out as a person involved in the incident. He was informed
of the reason for his arrest and
his rights were explained to him as
described in Captain Makaula’s pocketbook entry. There was no
mention of a person named
‘China’. At some stage Mr
Schultz informed Captain Makaula that the plaintiff had assaulted the
deceased with a stick.
He had provided similar information in respect
of other persons arrested at the time. The plaintiff was given time
to dress before
being taken away, as per the testimony of both police
officers and Ms Ntontela. At no stage during his arrest or subsequent
detention
did the plaintiff inform the police that he was at work at
the time of the murder.
The
legal position
[23]
The
Constitution of the Republic of South Africa, 1996, (‘the
Constitution’) guarantees the right of security and freedom
of
the person, including the right ‘not to be deprived of freedom
arbitrarily or without just cause’.
[4]
A peace officer may, without warrant, arrest any person reasonably
suspected of having committed an offence referred to in Schedule
1,
other than the offence of escaping from custody, in order to bring
the arrested person to justice.
[5]
Given that it results in an interference with liberty, and is prima
facie unlawful, the onus rests on the Minister to justify an
arrest.
[6]
At issue is whether
Captain Makaula’s suspicion that the plaintiff had committed
the offence of murder rested on reasonable
grounds, and whether his
discretion to arrest was properly exercised.
[7]
[24]
The
tension between the need to combat crime and the right of a person
not to be deprived of their liberty has been acknowledged:
[8]
‘
The
power of arrest without a warrant is a valuable means of protecting
the community. It should not be rendered impotent by judicial
encrustations not intended by the legislature. On the other hand the
law is jealous of the liberty of the subject and the police
in
exercising this power must be anxious to avoid mistaking the innocent
for the guilty. They often have to act on the spur of
the moment with
scant time to reflect, but they should keep an open mind and take
notice of every relevant circumstance pointing
either to innocence or
to guilt.’
[25]
While
it is wrong to attempt to craft hard and fast rules to address the
question at hand,
[9]
the
following principles have emerged through decided cases and may be
applied to the present facts:
a)
Each
case must be decided on its own facts.
[10]
b)
A
suspicion, by definition, means the absence of certainty.
[11]
In its ordinary meaning it is a state of conjecture or surmise where
proof is lacking. The officer in question need not be convinced
that
the information in their possession was sufficient to commit for
trial or convict, or to establish a prima facie case for
conviction,
before making the arrest.
[12]
Suspicion arises at or near the starting point of an investigation of
which the obtaining of prima facie proof is the end. When
such proof
has been obtained, the police case is complete; it is ready for trial
and passes on to its next stage.
[13]
c)
There
must be evidence for the arresting officer to form a reasonable
suspicion which is objectively sustainable.
[14]
The issue is not whether there is evidence admissible in a court
available to the arresting officer, but whether there was information
available which would cause the officer to reasonably suspect the
suspect of having committed the relevant offence. The reasonableness
requirement extends inter alia to the reliability or accuracy of the
information upon which an arrest is founded, including the
quality
and ambit thereof.
[15]
d)
This
does not imply that the quality of the information upon which the
arrestor acts must be analysed and assessed and that acting
on the
information, the quality of which has not been subjected to scrutiny,
will render an arrest unlawful.
[16]
e)
Bearing
in mind that the section authorises drastic, invasive action, the
suspicion should not be fanciful, ‘far-fetched,
misguided or
patently mistaken’ but based on ‘sound’
evidence.
[17]
f)
A
suspicion might be reasonable even if there is insufficient evidence
for a prima facie case against the arrestee.
[18]
The grounds for a suspicion are not limited to facts which can be
proved in court and a reasonable suspicion could conceivably
be
formed where a person has been seen at the scene of a crime and, upon
being questioned, gives a false alibi or refuses to answer
questions.
[19]
g)
Police
officers are required to have regard to the facts and circumstances
at their disposal and, where reasonably possible, to
satisfy
themselves of the merits thereof.
[20]
What constitutes reasonable grounds for suspicion is judged against
what was known or reasonably capable of being known at the
relevant
time.
[21]
h)
‘
The
standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not be an
unparticularised
suspicion. It must be based on specific and
articulable facts or information … [and] based on credible and
trustworthy information.’
[22]
If, in a particular case, the quality of the information at the
disposal of the police officer is so tenuous or conflicting that
it
cannot objectively sustain a suspicion as envisaged in s 40(1)
(b)
,
the police officer may first have to make further enquiries before an
arrest is affected.
[23]
i)
The
focus of the enquiry is the information at the disposal of the
arresting officer, which information is to be measured against
the
standard of reasonableness, as opposed to the reasonableness of the
conduct of the police officer concerned.
[24]
An arrestor’s grounds for suspicion must be reasonable from an
objective point of view.
[25]
The circumstances giving rise to the suspicion must be such as would
ordinarily move a reasonable person to form the suspicion
that the
arrestee had committed a first schedule offence.
[26]
The question is simply whether a reasonable person, confronted with
the same information possessed by the arresting officer at
the time
of the arrest, which would include an exculpatory statement of the
arrestee, could form a suspicion that the suspect had
committed an
offence as envisaged in Schedule 1.
[27]
j)
The
SCA has cited the following paragraph of the judgment of Jones J, in
this division, with approval:
[28]
‘
The
test of whether a suspicion is reasonably entertained within the
meaning of s 40(1)
(b)
is objective … Would a reasonable man in the second
defendant’s position and possessed of the same information have
considered that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of [the schedule 1 offence]
…
It seems to me that in evaluating his information a reasonable man
would bear in mind that the section authorises drastic
police action.
It authorises an arrest on the strength of a suspicion and without
the need to swear out a warrant, ie something
which otherwise would
be an invasion of private rights and personal liberty. The reasonable
man will therefore analyse and assess
the quality of the information
at his disposal critically, and he will not accept it lightly or
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. This is not to say that the
information at his disposal must be of 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 on solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.’
(References
omitted).
k)
The
reasonable person is the person of ordinary intelligence, knowledge
and prudence. A mistake of fact is not reasonable if it
is due to
lack of such knowledge and intelligence as is possessed by an
ordinary person, or if it is due to such carelessness,
inattention
and so forth, as an ordinary person would not have exhibited.
[29]
l)
The
test is not to be applied in a vacuum. It is subject to the facts and
the context, which may be crucial.
[30]
The factual context will be provided by matters such as the nature of
the crime, the elements thereof, the source and the nature
of the
information on which the suspicion is said to be based, and its
significance in supporting the suspicion entertained by
the arresting
officer.
[31]
[26]
On the question of discretion:
a)
If
one or more of the grounds listed in paras
(a)
–
(q)
of
s 40(1) of the Criminal Procedure Act, 1977 (‘the CPA) is
satisfied, the discretion whether to arrest arises. The officer
must
collate facts and exercise their discretion on those facts. The
officer must be able to justify the exercise of their discretion
on
those facts, which may include an investigation of the exculpatory
explanation provided by an accused person.
[32]
b)
The
arresting officer is not obliged to arrest based on a reasonable
suspicion because they have a discretion. The exercise of discretion
must be objectively rational and not arbitrary.
[33]
Police officers exercise public powers in the execution of their
duties and ‘rationality in this sense is a minimum threshold
requirement applicable to the exercise of all public power by members
of the executive and other functionaries’.
[34]
c)
That
aside, a court will not interfere with the result of the exercise of
a discretion that has been bona fide exercised or expressed,
the
arresting officer duly and honestly applying themselves to the
question left to their discretion.
[35]
d)
Even
a discretion exercised in a manner deemed sub-optimal by the court
will not breach the standard: ‘A number of choices
may be open
… all of which may fall within the range of rationality. The
standard is not perfection, or even the optimum,
judged from the
vantage of hindsight and so long as the discretion is exercised
within this range, the standard is not breached.’
[36]
e)
The
factors to be weighed in exercising the discretion must be gleaned
from a consideration of the CPA as a whole, including consideration
that an arrest is one step in the process of bringing a suspect to
justice, rather than isolated focus on s 40.
[37]
f)
Generally
speaking, there is no onus upon the police to carry out a thorough
investigation in each and every case before an arresting
officer
exercises their discretion whether or not to effect an arrest without
a warrant.
[38]
g)
Although
the purpose of arrest is to bring the suspect to trial, the
arrestor’s role in that process is limited. In cases
of serious
crime, including those crimes listed in schedule 1, a peace officer
could seldom be criticised for arresting a suspect
for that
purpose.
[39]
h)
It
is for the plaintiff to prove that the discretion was exercised in an
improper manner.
[40]
i)
Again,
the enquiry is fact specific and it is neither prudent nor practical
to formulate a general rule. Police officers have the
discretion to
arrest and exercise this power in pursuit of their constitutional
duty to combat crime. As police officers are confronted
with
different facts each time they effect an arrest, a measure of
flexibility is necessary in their approach to individual cases.
[41]
Analysis
[27]
Captain Makaula was in possession of a
murder docket, indicating that the deceased person had been assaulted
and burnt to death.
His suspicion that the plaintiff had committed
the murder had, as its basis, the statement of Mr Schultz, which he
obtained on
31 July 2019. That statement described in some detail
events that led to the deceased’s murder, including mention of
an initial
assault, the street where this occurred, a description of
the tyre placed on the deceased’s neck, his attempts to fend
off
his attackers, a further attack which caused him to fall, the use
of a cement brick to hurt his head and the way he was set alight.
Ms
Vuso’s statement, captured by Captain Makaula the following
day, broadly supports Mr Schultz’s description of events.
[28]
On the accepted evidence, Mr Schultz told
Captain Makaula that he was able to identify some of the people
responsible for the murder,
bearing in mind that the mob had numbered
approximately 100 people. He had recognised some faces and knew these
people as residents
of KwaZakhele, where he also resided.
[29]
Captain Makaula believed that Mr Schultz
was able to identify some of the perpetrators. This was because Mr
Schultz had observed
much of the incident. The nature of the attack
on the deceased was such that it lasted for some time. It occurred
during daylight.
It involved his friend. The mob were attempting to
end the deceased’s life in a gruesome manner, and ultimately
succeeded
in doing so. Unsurprisingly, considering that the incident
involved such efforts to end the life of his friend, it is apparent
from his statement that he paid attention to what was occurring.
[30]
In
addition, Mr Schultz had not provided information anonymously.
[42]
He had deposed to an affidavit explaining his observances and
contacted Captain Makaula, some six days later, once he was able
to
identify some of the people involved. He was willing to accompany the
police to ensure that the correct persons were arrested.
Moreover, he
deposed to a further affidavit after the arrests, adding that each of
the persons he had pointed out were known to
him by sight, were party
to the mob and had taken part in assaulting and burning the deceased.
This accords with the evidence of
both Captain Makaula and Sergeant
Mto as to what transpired in the vehicle en route to the arrests: on
the probabilities, Captain
Makaula engaged with Mr Schultz in the
vehicle and obtained credible assurances that he was certain that the
persons he had identified
were active participants in the murder.
[31]
Evidence
of identification is generally approached with caution. This is one
of the many considerations which may be relevant in
evaluating ex
post facto whether the information possessed by the arresting officer
was objectively sufficient to sustain a reasonable
suspicion. But the
requisite level of information in possession of the arresting officer
is not to be equated with the level of
admissible evidence required
to support a conviction at trial.
[43]
On the accepted facts, Captain Makaula cannot be criticised for
having surmised that he was arresting the correct persons, as a
necessary part of the completion of the police case before trial. The
test does not require him to have reached a state of conviction
as to
their guilt. The detailed initial statement of Mr Schultz, coupled
with his subsequent conduct, as described, enhanced the
sense of
reliability and accuracy of the information he provided. The
description of his vantage point and observations created
the
impression that he provided information of substantial quality.
[44]
[32]
Mr Schultz indicated at the onset that he
would be able to identify the people whose faces he had recognised,
given that they lived
in his neighbourhood. He made good on that when
he contacted Captain Makaula prior to the arrests. Captain Makaula
sensitised him
as to the importance of only pointing out perpetrators
and not mere bystanders. From the evidence of Captain Makaula and
Sergeant
Mto, coupled with the pocketbook entries, it must be
accepted that Mr Schultz was questioned in the vehicle about his
level of
certainty. This demonstrates Captain Makaula’s efforts
to subject the information provided by his witness to a level of
scrutiny,
bearing in mind the drastic consequences of arrest.
[33]
Mr Schultz responded in a manner that
indicated that he was convinced that the persons to be pointed out
were the perpetrators and
led the police to the addresses he had
ascertained. As such, the ambit of the information he was able to
provide was also extensive.
It included identification of various
assailants and was coupled with notes linking specific forms of
conduct to each person arrested.
Furthermore, it cannot be ignored
that Mr Schultz demonstrated his state of conviction when one of the
first persons to be arrested
denied involvement. The documentary
evidence confirms that Captain Makaula returned to the vehicle and
engaged with him and was
reassured as to the precise nature of the
involvement of the person concerned. This was prior to the arrest of
the plaintiff. Any
doubts that Captain Makaula held would have been
quelled by the various interactions with Mr Schultz in the vehicle en
route to
the arrests and during the preceding arrests.
[34]
In
all the circumstances, I am unable to conclude that Captain Makaula’s
suspicion that the plaintiff had committed a schedule
1 offence was
fanciful or flighty. It cannot be ignored that Mr Schultz’s
first statement reveals that he was himself, in
a sense, a target of
members of the mob. He was harangued and threatened both before and
after he observed his friend being murdered.
He had watched the
events as they unfolded until he could, in his own words, not watch
any further. If anything, this would have
served as motivation for
his subsequent conduct. The picture that emerges is one that is
sufficient for purposes of the formation
of an objectively
sustainable reasonable suspicion in the mind of Captain Makaula,
considering the nature of the crime and its
elements and the source
and nature of the information received. The offence was a mob
murder seemingly perpetrated by members
of a particular community.
The information upon which the arrest was based was founded on a
willing informant, himself a member
of that community. That informant
provided specific, articulable facts as to the murder. The
information as to the perpetrators
was seemingly credible and
trustworthy, provided in a consistent and concrete fashion. It had
also been subjected to further enquiries
and a sufficient level of
scrutiny in the circumstances. A reasonable person in possession of
the information at Captain Makaula’s
disposal would have
considered there to be good and sufficient grounds for suspecting the
plaintiff to be one of the active mob
participants and guilty of
murder. A greater measure of certainty was not required.
[45]
[35]
On
the accepted evidence, the plaintiff said and did nothing to alter
this perception when he was placed under arrest. If he had
genuinely
been at work at the time of the killing, sharing this information
would have been a natural response, even if Captain
Makaula had
already decided that he was to be arrested. Had he done so, the
probabilities favour the assumption that Captain Makaula
would have
engaged further with Mr Schultz, and eventually enquired as to the
veracity of any alibi. Absent any additional information,
and having
collated the various facts already described, Captain Makaula’s
decision to exercise his discretion to arrest
the plaintiff cannot be
faulted. That decision was objectively rational and not arbitrary,
the arresting officer duly and honestly
applying himself to the
question whether to arrest. Captain Makaula testified that he was
alive to other possibilities of bringing
the plaintiff to court, but
was influenced by the seriousness of the alleged offence. He
considered the case against the plaintiff
to be strong given the
opportunity that Mr Schultz had to observe the incident, which
occurred during the day. He believed that
he had acted prudently in
having Mr Schultz accompany the officers in order to point out the
accused persons on the night of their
arrest. That Captain Makaula
may have proceeded differently does not alter the position. He may,
for example, have asked Ms Vuso
to accompany the police when they
proceed to arrest the suspects, or engaged Mr Schultz on the process
he followed in locating
the persons identified. The standard is not
perfection, or even the optimum, judged with the benefits of
hindsight. The serious
nature and context surrounding the crime are
significant factors supportive of the exercise of discretion to
arrest the plaintiff.
In the circumstances, the plaintiff has not
demonstrated that the discretion was exercised improperly.
[46]
Initial
detention
[36]
The Minister’s defence to the claim
of unlawful detention prior to the first court appearance rested upon
s 39(3) of the CPA.
That section provides that the effect of a lawful
arrest shall be that the person arrested shall be in lawful custody,
to be detained
until lawfully discharged or released from custody. It
was the Minister’s case that the plaintiff’s detention
pursuant
to a lawful arrest remained lawful until his release.
[37]
S
39(3) of the CPA provides for the continuity of the lawfulness of the
detention of a suspect. It must be read in the context of
those
provisions of the CPA which provide for the release of a suspect from
detention.
[47]
Lawful release
from custody may occur either before, at or after the detained
suspect’s first appearance in court, as is
required by s 50 of
the CPA and the Constitution.
[38]
On
the pleadings, the plaintiff’s claim for unlawful detention
prior to the first court appearance is, in essence, intertwined
with
the claim for unlawful arrest, which has been unsuccessful. There is
no suggestion that the plaintiff was not, subsequent
to his arrest,
brought to a police station as soon as possible.
[48]
The evidence supports the Minister’s version of events as to
the procedure adopted in detaining the plaintiff. There is little
on
the papers to suggest that he ought to have been released prior to
his first court appearance. Considering the provisions of
ss 39 and
50 of the CPA, read with ss 59 and 59A, and the undisputed
seriousness of the alleged offence, the Minister has succeeded
in
proving that the plaintiff’s detention until the first court
appearance was justified.
[49]
There was a constitutionally acceptable reason for the deprivation of
liberty, so that the applicable public law duty was not breached
in
respect of this period of detention.
[50]
Subsequent
detention
The
evidence
[39]
Following his initial appearance in court
on 8 August 2019, the plaintiff was remanded in custody until 16
August 2019. While he
testified that he did not have legal
representation at the time of his first court appearance, he conceded
during cross-examination
that he had in fact elected to be
represented by a legal aid representative shortly after proceedings
commenced on 8 August 2019.
This is consistent with the documentary
evidence presented as to what occurred at that time. The magistrate
read the accused their
rights, confirmed the agreement of all the
accused and indicated that they all elected to apply for legal aid,
as confirmed in
the documentary evidence.
[40]
After
documenting the responses received from the accused persons as to
their prior convictions and pending cases, the magistrate
records
that the public prosecutor was opposed to bail, because of the
applicability of schedule 5, and that a postponement was
requested
until 16 August 2019 for a formal bail application ‘and
profiles’. The submissions of the defence are then
recorded:
appearance was confirmed together with the date suggested by the
prosecutor. This is followed by the court remand in
respect of each
of the accused until 16 August 2019, for the reasons mooted by the
prosecutor.
[51]
[41]
To the contrary, the plaintiff maintained
that his legal aid representative made no submissions in this
respect, and that only the
prosecutor and magistrate spoke at all.
When it was put to him that this interpretation would mean that the
court had fabricated
that portion of the document, the plaintiff
repeated his earlier suggestion that he was not legally represented
at the time of
that first appearance. He later acknowledged that
there were attorneys to represent him, but added that the matter had
not been
discussed. During cross-examination by Ms
Hesselman
,
he readily conceded that he had applied for legal aid and that he was
then represented in court at the time. While mindful that
the
proceedings in question would have occurred with some rapidity, the
suggestion that the magistrate’s recordal of events
was
erroneous cannot be accepted. The plaintiff appeared flustered and
vacillated in explaining his version of what had occurred,
adversely
affecting my assessment of his credibility.
[42]
In any event, the plaintiff later conceded
that he received representation during his first court appearance and
agreed to the matter
being postponed until 16 August. When it was put
to him that this resulted in the subsequent detention being lawful,
he indicated
that his sole complaint was that the wrong person had
been arrested, so that subsequent detention was unlawful. As to the
events
in court at the time of the first appearance, his complaint
appeared to be that the matter had not been tried. He agreed that the
magistrate had written something down and that his rights had been
read to him, but complained that he had not received anything
in
writing. He accepted that the magistrate’s notes reflected the
application of schedule 5 of the CPA. He also testified
that he
struggled to remember what had occurred at the time of the first
court appearance. He nevertheless maintained that ‘nothing’
was discussed and suggested that his rights had only been read during
his second court appearance. His testimony in all these respects
was
extremely poor. Belatedly he conceded that he had been informed of
the charge and that it fell within schedule 5. He was also
told the
reasons for the postponement at the time of the first court
appearance, which he indicated he understood.
[43]
Mr Moolman, a principal legal practitioner
at Legal Aid South Africa, testified that court 54 at New Brighton
was a ‘reception
court’, whereas court 55 was designated
as a ‘bail court’. Matters would only be transferred to
the bail court
if there was a dispute between the parties. Mr Moolman
took issue with the rote postponement of matters for seven days for
reasons
of convenience.
[44]
He had been unable to locate the
plaintiff’s file. His evidence was that even if the plaintiff
had insisted on bail at the
time of the first court appearance, it
would have been impossible to obtain this because of the established
practice and volume
of cases.
[45]
Ms Els testified that she was employed by
the second defendant as a Regional Court prosecutor in New Brighton.
She received new
cases and considered whether there was a prima facie
case and whether the matter should be placed on the roll, providing
guidance
to the prosecutor dealing with bail in court.
[46]
She had considered the docket at hand and
decided that there was a prima facie case against the arrested
suspects, so that the matter
could be placed on the roll. Ms Els
decided that the matter could proceed directly to the bail court
considering the nature of
the alleged offence and the schedule
applicable. She also suggested that bail be opposed due to the
information contained in the
docket. She perused all the statements,
and considered the eye-witness statements in the docket, coupled with
the subsequent pointing
out, to be particularly important. The
decision to oppose bail and seek a postponement was prompted by the
schedule of the offence
and its seriousness, because addresses were
not verified and because information as to previous convictions and
pending cases was
required. In respect of the plaintiff, it was
necessary to verify information received from him regarding previous
convictions
and pending cases. Fingerprints were needed to obtain
these profiles and SAP 69 records often demonstrated a different
picture
to that presented by an accused person. The prosecution could
not simply rely on the word of an accused person and there were tools
available to the police to verify SAP 69s and profiles. Some of the
plaintiff’s co-accused, for example, indicated that they
did
not have previous convictions, whereas the SAP 69 forms reflected the
contrary.
[47]
Ms Els confirmed, with reference to a
criminal court register that was produced, that proceedings had taken
place in court 55, which
was a court dealing with bail applications.
Ms Balicawa was the prosecutor who appeared in court on 8 August and
Ms Els was certain
that her duties at the time were in the bail
court. The so-called ‘reception court’ was a different
court, numbered
54, with its own register. Reference to that court
number when the proceedings of 8 August 2019 were recorded had,
therefore, been
a simple error through use of the wrong form. While
the prosecution sought a remand for a seven-day period, in order to
obtain
the necessary profiles, nothing stopped the plaintiff from
objecting and instituting a bail application. Having not objected to
the remand, it was apparent that the defence did not wish to move a
bail application, despite enjoying the right to do so. She
explained
during cross-examination that had their approach been different, the
matter might then have stood down until later that
day for argument.
[48]
Although Ms Els was not present in court,
it was apparent from the documentation available that the defence had
not objected to
the postponement sought by the court prosecutor. This
was for purposes of obtaining additional information in accordance
with the
CPA and the interests of justice. She testified that the
case had eventually been withdrawn because state witnesses were in
hiding.
[49]
During cross-examination, Ms Els explained
that she was unconcerned about the lapse of time between Mr Schultz’s
statements.
This was typical in cases where suspects could not be
located on the day of the incident and where an investigating officer
was
contacted subsequently. Arrests did not always occur on the day
of the incident and suspects moved around. That the pointing out
had
occurred some days later was simply not a concern.
[50]
Ms Els was an excellent witness who
explained the exercise of her discretion to recommend enrolment of
the matter at the time. She
explained that this did not imply that
the court prosecutor was bound by this recommendation. If the court
prosecutor was not in
agreement, the two would have a discussion, and
the court prosecutor could also proceed as they deemed fit based on
what occurred
in court. Nonetheless, her recommendation was that a
formal bail application was necessary. With specific reference to
schedule
5 offences, she also confirmed that there were instances
where information might be verified beforehand. Each case depended on
its own merits and the court had decided to grant the remand until 16
August. The documentation revealed that the SAP information
and
profiles remained unavailable on 15 August, so that the position had
not changed at that stage.
[51]
Ms Balicawa testified that she had worked
as a prosecutor in court 55 on 8 August 2019. She had received the
docket from Ms Els,
perused the documentation and noted the
recommendation that bail be opposed. She had satisfied herself that
there was a prima facie
case against the accused and appeared in the
bail court. She was in agreement with Ms Els’ view of the
matter because a schedule
5 offence had been alleged, which was a
serious matter, having considered the statements in the docket and
the pointing out of
the accused.
[52]
Ms Balicawa recalled that the plaintiff had
elected to be represented by a legal aid practitioner. Bail had been
opposed and the
matter postponed at her request until 16 August 2019,
with the agreement of defence counsel. There was, however, no
apparent reason
for bail to be opposed on 16 August 2019 when the
matter appeared before court again.
[53]
The witness explained during
cross-examination that she would have discussed the matter with Ms
Els in the event that there was
disagreement on how to proceed.
Further disagreement might have resulted in a senior public
prosecutor being approached. While
open to persuasion, Ms Balicawa
understood that it was her discretion on how to proceed. She had the
power to proceed as she wished
if in disagreement with Ms Els, who
had decided to enrol the matter. Here, however, the two had been in
agreement. Considering
both Mr Schultz’s statements, Ms
Balicawa was satisfied that there had been proper follow-up so that
any doubts had been
cleared.
[54]
The investigation diary reflected various
additional instructions addressed to the investigation officer,
including a request for
an identification parade. Information
provided by the plaintiff on a bail information form had not been
verified by time of the
first court appearance. The witness recalled
that Captain Makaula had subsequently ascertained that some of the
accused persons
had been at work at the time of the incident. Bail
was not opposed on 16 August 2019 because of the doubt this caused.
By that
time the plaintiff had deposed to an affidavit and requested
release on bail. Captain Makaula had also deposed to an affidavit
explaining that addresses had been verified and, absent proof of
previous convictions or pending cases, that bail was not opposed.
Analysis
[55]
The plaintiff pleads that employees of the
defendants owed a duty of care to assess the strength of the state’s
case against
him and to determine whether there existed a prima facie
case, and to ensure that the charges and proceedings were dealt with
in
accordance with the dictates of justice. This includes ensuring
that the plaintiff’s detention in custody would not be extended
absent a prima facie case. Implicit in the pleadings is the
allegation that bail was denied absent a prima facie case against the
plaintiff, and due to a failure to place relevant information in the
plaintiff’s favour, and illustrative of the weakness
of the
state’s case, before the court during his appearance on 8
August 2019. It is averred that the defendants are responsible
for
maliciously opposing the granting of bail that day, in circumstances
where continued detention was unnecessary.
[56]
Every
interference with physical liberty, including through arrest and
detention, is prima facie unlawful, the burden being on the
person
that caused the interference to establish a ground of
justification.
[52]
A detention
constitutes a drastic curtailment of a person’s freedom. There
should be a justifiable cause for any interference
with this right,
especially considering the ‘traumatic, brutalising,
dehumanising and degrading’ effect that detention
can have on
people.
[53]
[57]
It
must also be noted that a remand order by a magistrate does not
necessary render subsequent detention lawful:
[54]
‘
Every
deprivation of liberty must not only be effected in a procedurally
fair manner but must also be substantively justified by
acceptable
reasons…What matters is whether, substantively, there was just
cause for the later deprivation of liberty. In
determining whether
the deprivation of liberty pursuant to a remand order is lawful,
regard can be had to the matter in which the
remand order was made.’
(Footnotes omitted.)
[58]
The
Constitutional Court has held that it is erroneous to shift the onus
so that the plaintiff is required to prove the unlawfulness
of
post-appearance detention. In
Mahlangu
,
that Court criticised the SCA for placing emphasis on an accused
person’s failure to apply for bail in considering state
liability for detention after a court appearance.
[55]
[59]
Various
constitutional provisions oblige police officers to establish, before
arresting and detaining a person, the justification
and lawfulness of
arrest and detention, including any further detention if the
underpinning facts are within the knowledge of that
official.
[56]
It is the duty of the police official who has arrested a person for
purposes of having them prosecuted to give a ‘fair and
honest
statement of the relevant facts to the prosecutor, leaving it to the
latter to decide whether to prosecute or not’.
[57]
Where there are no facts which justify further detention, the
investigating officer should inform the prosecutor accordingly, the
purpose being to eventually place the magistrate in an informed
position to determine whether the person should be detained
further.
[58]
The defendants
would be liable for post-appearance detention where their wrongful
and culpable conduct materially influenced the
decision of a court to
remand the plaintiff in custody.
[59]
[60]
Once
an accused person is brought before a court, the authority to detain
him is exhausted and further detention is then within
the discretion
of the court, and subject to wide-ranging statutory directions.
[60]
The plaintiff was facing at least a schedule 5 charge so that the
provisions of s 60(11)
(b)
obliged his detention in custody unless he adduced evidence that
satisfied the court that the interests of justice permitted his
release.
[61]
Because this
implicates the freedom of the person concerned, and triggers the
corresponding constitutional right in s 12(1)
(a)
,
the police and prosecutor may be found to have a public law duty to
assist the court in giving effect to, and protecting this
right.
[62]
The nature of the duty must be determined on the facts, subject to
the existence of a charge and the underlying decision to charge
the
accused.
[63]
In appropriate
circumstances, neither the police nor the prosecutor would be
relieved from disclosing to the court that there is
an absence of
evidence to substantiate the charges, or that the only evidence
implicating the accused is very weak, or, for example,
entirely
dependent upon the admission of hearsay evidence emanating from a
co-accused:
[64]
‘
A
failure by the prosecutor to inform the court of the absence of
evidence implicating the accused in the charge would leave the
court
with the impression that such evidence does exist. To allow the court
to proceed to exercise its function … from that
premise, is in
my view tantamount to misleading the court. It is in conflict with
the role of a prosecutor in criminal proceedings.
Whether or not
there are sufficient grounds for a charge as envisaged in section
60(11)
(a)
is a matter which would fall within the knowledge of the police and
the prosecution. It is a decision which cannot be made arbitrarily
and without a proper consideration of the evidence. The absence of
evidence is a matter which is accordingly relevant to such
proceedings, and would place a duty on the prosecutor to bring that
to the court’s attention, particularly, as in the present
matter, when the police docket is in the possession of the
prosecutor.’
[61]
On
the evidence, to the extent that the particulars of claim suggest
malicious arrest and detention, this is simply not borne out
by the
evidence. The arrest and subsequent detention were not malicious. The
legal process was not used improperly by employees
of the defendants,
or for a purpose not contemplated in the empowering legislation, to
deprive the plaintiff of his liberty.
[65]
[62]
As
for the claim of wrongful further detention under the actio
iniuriarum, the evidence reveals a legal justification for what
occurred. The plaintiff, having been brought to court timeously, was
detained further by the order of the magistrate based on the
information she was able to glean at the time. The evidence confirms,
contrary to Mr Moolman’s contentions, that this was
not a
mechanical remand where the presiding officer hastily went through
the motions and failed to interrogate the possibility
of bail. The
case is distinguishable from
De
Klerk v Minister of Police
,
[66]
where the evidence presented the picture ‘of a high-volume
remand court in which accused persons were brought up and down
from
the cells with great rapidity’ so that the police officer knew
that magisterial remand would be the result a routine
or mechanical
act, as opposed to a considered judicial decision.
[67]
Mr Moolman was not present at the time and was also unable to locate
the plaintiff’s file. Much of his evidence was presented
on the
assumption that the proceedings in question had occurred in court 54,
a ‘reception court’, which was simply
not the case. The
use of a form incorrectly labelled ‘54’ as opposed to
‘55’ clearly does not alter this
position.
[63]
In
the present circumstances, the police complied with their
constitutional and statutory duty to ensure that the plaintiff was
brought before a court as soon as possible after arrest, for the
second defendant, represented by the public prosecutor, to determine
whether the plaintiff should be charged. A fair and honest statement
of the relevant facts was provided, so that a proper decision
whether
or not to prosecute could be made by the prosecutor. As Mr
Petersen
argued, there was also no improper influence exerted on the
prosecutor or the magistrate, by the employees of the Minister, so
as
to cause the further detention.
[68]
[64]
As
for the second defendant, both Ms Els and Ms Balicawa applied their
minds based on the information contained in the docket and
were of
the view that there was a prima facie case against the plaintiff. The
contention that Ms Balicawa had not applied her mind,
failed to
exercise her discretion and simply followed Ms Els’
recommendation blindly, is not supported by the evidence. Ms
Balicawa
clearly applied her own mind to the docket and agreed with Ms Els’
recommendation. The decision to oppose bail on
8 August 2019, and to
seek a postponement pending a formal bail application, was made also
considering the schedule of the alleged
offence and the information
that was outstanding at the time. The plaintiff, through his legal
representative, had not objected
to this, and it cannot be said that
the magistrate was not informed of material facts that might have
resulted in his release.
To repeat, this was not an instance of a
mechanical remand based purely on the schedule linked to the alleged
offence. The prosecutorial
conduct was grounded in the contents of
the docket and was not arbitrary or unsound.
[69]
[65]
The consequence is that the plaintiff,
having been brought before a magistrate pursuant to a lawful arrest
in respect of a schedule
5 offence, was lawfully detained until 16
August 2019 in the interests of justice, so that the second defendant
has discharged
the onus and is not liable for any harm caused to the
plaintiff. Thereafter, he was rightly released based on the
additional affidavits
that were then at hand.
Costs
[66]
In the circumstances, there is no basis for
departing from the usual order in respect of costs. A final issue
requires determination.
On 20 April 2023, the matter was postponed
for trial to 5 February 2024, by order of court. The costs occasioned
by the postponement
of the matter were reserved for determination by
the trial court. Mr Dwayi, who was the plaintiff’s counsel
until 18 April
2023, was ordered to file an affidavit setting out the
facts and circumstances that led to him becoming unavailable to
conduct
the trial on 20 April 2023. I have considered the contents of
his affidavit, as well as his explanation for his conduct, which I
accept. I consider it just and equitable that the order of costs
includes the wasted costs occasioned by the postponement on 20
April
2023.
Order
[67]
The following order is issued:
1.
The plaintiff’s claims are dismissed
with costs, to include the costs occasioned by the postponement on 20
April 2023.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
05,06,07,08,09 February 2024
Delivered:
30 April 2024
Appearances:
Counsel
for the Plaintiff:
Adv
AE Teko
St
George’s Chambers, Makhanda
Instructed
by:
Magqabi
Seth Zitha Attorneys
Attorneys
for the Plaintiff
14
Harmony Building
North
end
Market
Street
Gqeberha
Email:
mszattorneys@gmail.com
Counsel
for the 1
st
Respondent:
Adv
F Petersen
Chambers,
Gqeberha
Instructed
by:
State
Attorney
Attorneys
for the 1
st
Defendant
29
Western Road
Central
Gqeberha
Email:
PNotley@justice.gov.za
Counsel
for the 2
nd
Respondent:
Adv
L Hesselman
Oasim
Chambers, Gqeberha
Instructed
by:
State
Attorney
Attorneys
for the 2
nd
Defendant
29
Western Road
Central
Gqeberha
Email:
PNotley@justice.gov.za
[1]
This
court granted condonation for the late delivery of the notice to
institute legal proceedings in terms of s 3 of the Institution
of
Legal Proceedings Against Certain Organs of State Act, 2002 (Act 40
of 2002) on 30 August 2022.
[2]
The
complete entry reads as follows: ‘23:48: The witness led us to
[the address] whereupon he pointed out the suspect who
became known
as Xolile Vitshima. I introduced myself to the suspect and informed
him that I was arresting him for the murder
that took place at
Stofile Street KwaZakele on 29 July and I informed him of his
rights. According to the witness Xolile had
assaulted the deceased
with a stick and Limka had assaulted the deceased with stones. All
the suspects were detained at New Brighton
and Sgt Mto gave and read
them their rights as per SAP 14A New Brighton…’
[3]
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell and Others
2003
(1) SA 11
(SCA) para 5.
[4]
S
12(1)(a) of the Constitution of the Republic of South Africa, 1996
(‘the Constitution’).
[5]
S
40(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977) (‘the
CPA’) read with
Sekhoto
and Another
2011 (5) SA 467
(SCA);
[2010] ZASCA 141
(‘
Sekhoto
’)
para 30. The so-called jurisdictional facts which must exist before
the power conferred by this section may be invoked
are as follows:
(1) the arrestor must be a peace officer; (2) they must entertain a
reasonable suspicion; (3) it must be a suspicion
that the arrestee
committed an offence referred to in Schedule 1 to the CPA (other
than the one offence mentioned); (4) that
suspicion must rest on
reasonable grounds. If the jurisdictional requirements are
satisfied, the peace officer has a discretion
whether or not to
exercise that power:
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) (‘
Duncan
’)
at 818G–I.
[6]
Minister
of Law and Order v Hurley
1986
(3) SA 568
(A) at 589E–F;
Sekhoto
above n 5 para 16. The decision to arrest must be based on the
intention to bring the accused person to justice:
Duncan
above n 5 at 820D.
[7]
Sekhoto
above
n 5 para 28. The officer is not obliged to effect an arrest merely
because the jurisdictional facts are present. As to the
relationship
between the schedule 1 offence of murder and the doctrine of common
purpose, applied by the courts to enable it
to convict a number of
people acting together of murder, see S Hoctor
Snyman’s
Criminal Law
(7
th
Ed) (2020) at 226–228. Cf
Minister
of Police v Mahleza
[2021] ZAECGHC 83 (‘
Mahleza
’)
para 19.
[8]
Duncan
above
n 5 at 466D – F.
[9]
See
Minister
of Police v Dunjana and Others
[2023] 1 All SA 180
(ECG) (‘
Dunjana
’)
para 18.
[10]
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 56
(CC);
2007 (10) BCLR 1102
(CC) (‘
Van
Niekerk
’)
paras 17, 20.
[11]
Dunjana
above n 9
para
17.
[12]
C
Okpaluba ‘Reasonable and probable cause in the law of
malicious prosecution: A review of South African and commonwealth
decisions’ PER (2013) vol 16, no. 1, at 249.
[13]
Duncan
above
n 5 at 819I;
Minister
of Law and Order v Kader
1991 (1) SA 41
(A) at 50H;
Powell
NO and Others v Van der Merwe NO and Others
2005 (5) SA 62
(SCA) (‘
Powell
NO
’)
para 37, citing
Shabaan
Bin Hussien & Others v Chong Kam & Another
[1969] 3 All ER 1626
(PC) at 1630C–D.
[14]
Mataba
v Minister of Police
[2021]
ZALMPPHC 4 para 33. This entails the arresting officer investigating
the circumstances of the particular offence which
is alleged to have
been committed before it can be said that there is reasonable
suspicion that an offence has been committed.
[15]
Biyela
v The Minister of Police
[2022]
ZASCA 36
(‘
Biyela
’)
paras 23, 24.
[16]
Dunjana
above
n 9 para 21.
[17]
Powell
NO
above
n 13 para 38.
[18]
Duncan
above
n 5 at 819I – 820B.
[19]
Mawu
and Another v Minister of Police
2015
(2) SACR 14
(WCC) (‘
Mawu
’)
para 32.
[20]
Mananga
and Others v Minister of Police
[2021]
ZASCA 71
(‘Mananga’) para 16.
[21]
Okpaluba
above n 12 at 249.
[22]
Biyela
above
n 15 paras 34, 35.
[23]
Dunjana
above
n 9 para 20. A resultant finding that the police officer could not
reasonably have formed a suspicion as required, is because
the
information at his disposal was insufficient to sustain such a
suspicion, and not because there was a failure to investigate
information given by an arrestee.
[24]
Dunjana
above
n 9 para 21.
[25]
Duncan
above n 5
at
814D–F. The suspicion need not be based on information
that would subsequently be admissible in a court of law:
Biyela
above
n 15 para 33.
[26]
Mananga
above
n 20
para
20.
[27]
Dunjana
above
n 9 para 21.
[28]
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658E–H as cited in
Brits
v Minister of Police and Another
[2021]
ZASCA 161
para 20.
[29]
R
v Mbombela
1933
AD 269
at 272.
[30]
Van
Niekerk
above
n 10.
[31]
Dunjana
above
n 9 para 18. In
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE), the reasonableness of the suspicion of the
arresting officer was determined in the context of the fact that the
source
of the information, on which the officer based his suspicion,
was an anonymous informer – a fact that would have caused a
reasonable police officer to be more cautious.
[32]
Groves
NO v Minister of Police and Another
2024
(1) SACR 286
(CC) para 52.
[33]
The
objective enquiry is to determine whether the decision was
rationally related to the purpose for which the power was given:
Pharmaceutical
Manufacturers Association of SA: In Re Ex Parte Application of the
President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
;
2000 (3) BCLR 241
(CC) (‘
Pharmaceutical
Manufacturers
’)
paras 85–86 as cited in
Sekhoto
above n 5 para 36.
[34]
Pharmaceutical
Manufacturers
above
n 33 para 90.
[35]
Shidiack
v Union Government (Minister of the Interior
)
1912 AD 642
at 651–652, as cited in
Sekhoto
above n 5 paras 34–36.
[36]
Sekhoto
above
n 5 para 39.
[37]
Sekhoto
above
n 5 para 40 and following.
[38]
Lifa
v The Minister of Police and Others
[2023]
1 All SA 132
(GJ) para 66.
[39]
Sekhoto
above
n 5 para 44: ‘It is sufficient to say that the mere nature of
the offences of which the respondents were suspected
in this case –
which ordinarily attract sentences of imprisonment and are capable
of attracting sentences of imprisonment
for 15 years –
clearly justified their arrest for the purpose of enabling a court
to exercise its discretion as to
whether they should be detained or
released and if so on what conditions, pending their trial.’
[40]
Duncan
above
n 5 at 819B–D;
Sekhoto
above n 5 para 49.
[41]
MR
v Minister of Safety and Security and Another
2016
(2) SACR 540
(CC) (‘
MR
’)
para 42.
[42]
Dunjana
above
n 9 para 28.
[43]
Dunjana
above
n 9 para 28.
[44]
Cf
Mawu
above
n 19 para 38.
It
may be noted, as an aside, that the case was only withdrawn sometime
after the accused persons were released on bail. Mr Schultz
had been
attacked in what he believed was an attempt to assassinate him
because of his involvement in this case. Captain Makaula
struggled
to locate either Mr Schultz or his girlfriend, the second witness to
the case. Mr Schultz later confirmed that he had
been on the run and
believed his life to be in danger, so that he preferred not to have
any further involvement in the matter.
Captain Makaula informed the
prosecutor of these developments, resulting in the case being
provisionally withdrawn.
[45]
See
Maswana
v Minister of Police
(unreported, case no. CA 25/2023) (Eastern Cape Division, Bhisho)
para 34.
[46]
See
MR
above n 41 para 44.
[47]
Syce
and Another v Minister of Police
[2024]
ZASCA 30
para 42.
[48]
See
Stuurman
v The Minister of Police and Another
[2021] ZAECPEHC 15 paras 39–40.
[49]
Zealand
v Minister of Justice and Constitutional Development
[2008] ZACC 3
;
2008
(2) SACR 1
(CC) (‘
Zealand
’)
para 25.
[50]
See
Banda
v Minister of Police NO
[2021] JOL 50674
(ECG) paras 61 – 64.
[51]
For
a similar interpretation of recorded proceedings, see
Mahleza
above n 7 para 46.
[52]
Zealand
above
n 49 para 25. The requirements for a claim under the
actio
iniuriarum
for unlawful arrest and detention are summarized in
De
Klerk v Minister of Police
2020 (1) SACR 1
(CC) (‘
De
Klerk
’)
para
14.
[53]
MR
above n 41 para 67.
[54]
De
Klerk
above
n 52 para 62.
[55]
Mahlangu
and Another v Minister of Police
2020
(3) SACR 136
(SCA), read with
JE
Mahlangu and Another v Minister of Police
[2021] ZACC 10
(‘
Mahlangu
’)
paras 45–47.
[56]
Botha
v Minister of Safety and Security, January v Minister of Safety and
Security
2012
(1) SACR 305
(ECP) (‘
Botha
’)
paras 29–30, cited with approval in
Mahlangu
above n 55 para 40.
[57]
Minister
of Safety and Security v
Tyokwana
[2014]
ZASCA 130
;
2015 (1) SACR 597
(SCA) para 40.
[58]
Botha
above
n 56 paras 29–30.
[59]
Woji
v Minister of Police
[2014]
ZASCA 108
;
2015 (1) SACR 409
(SCA) para 27.
[60]
Singata
and Another v Minister of Police and Another
[2015]
ZAECBHC 19 (‘
Singata
’)
para 41.
[61]
S
60(11)
(b)
provides that ‘…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 the reasonable
opportunity to do so, adduces evidence which satisfies the
court
that the interests of justice permit his or her release.’
[62]
It
is a basic component of the rule of law that state functionaries,
including the police, are constrained by the principle of
legality
and may not exercise any power nor perform any function beyond that
conferred upon them by law:
Mahlangu
above
n 55 para 26.
[63]
Singata
above
n 60 para 42.
[64]
Ibid
paras 42, 43, as quoted by the full bench in
National
Director of Public Prosecutions v Swarts
[2018] ZAECPEHC 65 (‘
Swarts
’),
in the context of s 60(11)
(b)
of the CPA.
[65]
Minister
of Police v Lebelo
2022 (2) SACR 201
(GP) para 69.
[66]
De
Klerk
above
n 52.
[67]
Mahleza
above
n 7 para 50.
[68]
Also see
Mahleza
above n 7 para 58 and following.
[69]
See
Minister
of Police and Another v Du Plessis
2014 (1) SACR 217
(SCA) paras 28, 34. It may be added that the
plaintiff’s reliance on
Swarts
above n 64, appears to be inapposite. In that matter the plaintiff
was detained despite an assurance by the arresting officer,
as
confirmed by way of an affidavit contained in the docket, that he
would be released on the same day of his initial court appearance.