Kave v National Minister of Police and Others (293/2020) [2024] ZAECELLC 27 (6 May 2024)

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[2024] ZAECELLC 27
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Kave v National Minister of Police and Others (293/2020) [2024] ZAECELLC 27 (6 May 2024)

NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
LOCAL DIVISION)
CASE NO:
293/2020
In the matter between
LWANDO
KAVE

Plaintiff
and
NATIONAL MINISTER OF
POLICE

First Defendant
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS

Second Defendant
MS
N MAKAZI (Prosecutor)
Third Defendant
JUDGMENT
HARTLE J
Introduction:
[1]
The arrest and prosecution of the plaintiff
on charges of the rape and kidnapping of a 14 year old girl
(“the
charges”)
are at the centre of an
action for damages which came on trial before me.
[2]
The four issues which arise for
determination are (1) whether the plaintiff’s arrest and
detention were justified, (2) whether
the defendants’ members
(alleged to have been acting in concert) caused his unlawful further
detention, (3) whether the 2nd
and 3rd defendants acted maliciously
in prosecuting him and, (4) in the event of any of these issues being
decided in his favour,
the quantum of damages to which he is
entitled.
The Pleadings:
[3]
The claims are framed in an omnibus
fashion.
[4]
The plaintiff seeks to hold both the
defendants’ members liable for their relevant roles played in
causing him to be arrested
in the first place, detained, prosecuted,
and remanded in custody pending the trial that was terminated in his
favour on 25 January
2019.
[5]
In
addition to pleading the classic elements of his claim for unlawful
arrest and detention, the plaintiff alleges that certain
conduct on
the part of the members aforesaid conduced to his continued detention
after his first court appearance in the Mdantsane
Magistrate’s
Court on 14 March 2018.
[1]
[6]
In this respect it is suggested that the
relevant members culpably missed the fact that there was not a
merit-worthy case against
him arising from the charges that provided
a reasonable underpinning for him to have remained in custody. This
contention depends
for its thrust on the question whether reasonable
and probable cause existed to have founded the enrolment of the
charges by the
prosecution in the first place. In any event the
plaintiff alleges that he was unlawfully deprived of his liberty or
rather that
there was no just cause for the deprivation, this despite
the ordinary legal consequences that ensue upon an arrest carried out

under the auspices of Chapter 5, as well as the regular constraints
put upon the liberty of an accused person arrested and charged
with
serious offences under Chapter 9, of the Criminal Procedure Act, No
51 of 1977 (“
CPA
”).
[7]
So,
for example, it is alleged that the members failed to apply their
minds properly to the contents of the docket, and the facts
of the
case, especially the fact that the sexual intercourse had been
consensual. The particulars of claim postulate that if the
members
had done so (I suppose it is meant to say conscientiously and
objectively) this would have brought with it the realization
that
there was no justifiable cause for the plaintiff to have been kept in
custody arising from his arrest until he was released
on warning on
26 March 2018.
[2]
[8]
Also alleged is that on each instance when
the plaintiff appeared in court the defendants’ members “
were
of the view that
(he)
should
be remanded in custody
” and that
“
in pursuit of this oral
agreement, both applied to Court that
(he)
be remanded in custody.
”
[9]
The
defendants admit that the plaintiff was arrested without a warrant on
14 March 2018 under Vulindlela CAS 83/03/2018, that he
was detained
at the Mdantsane police station pursuant thereto and pending his
first court appearance, and that he was charged with
rape and
kidnapping.
[3]
The authority to
arrest without a warrant envisaged in section 40 (1) (b) of the CPA
was relied upon by the first defendant to
justify the arrest and
attendant detention of the plaintiff until his first appearance in
court.
[10]
Also, by implication, the defendants admit
the plaintiffs continued detention until he was released on warning
although they deny
that he was
unlawfully
remanded in custody
during this period.
[11]
In amplification of such denial they plead
that there was a
prima facie
case to have sustained the charges and adverted to the fact that the
offences are of a serious nature, more especially the rape
count
which warranted a “
custodial
remand
” in terms of section 60
(11)(a) of the CPA.
[12]
The prosecution of the charges against the
plaintiff was defended by the defendants on the basis that it was
pursued in good faith
and on the grounds that there was sufficient
evidence to sustain the charges pressed against him. Malice is
denied.
The common cause
features of the matter:
[13]
I list below the facts of the matter which
are either common cause or uncontroversial:
[14]
The plaintiff was arrested without a
warrant at his home on the morning of 14 March 2018 on a charge of
the rape of the complainant’s
14 year old daughter.
[15]
The complainant himself was a police
officer. He had reported to the Vulindlela police station that the
plaintiff raped his daughter
during the night of 12 March 2018.
[16]
His
report was ostensibly made on the morning of 13 March 2018.
[4]
[17]
In it he states that he was informed by his
sister whilst at work on 13 March 2018 that his daughter had been
raped. He relates
what he was told by the child herself as regards
the offences as follows:
“
She
said she was on the way to (friend) last night at about 23:00 to
collect her track top then on the way she met Lwando. Then
Lwando
said he is going to help her by giving her cell phone to phone or
WhatsApp (friend) Then he said they must go at his place
to collect
data. Then he dragged her to his shack and he locked the door. Then
she said this Lwando threatened her. And he said
he is not afraid
because he came from jail for years. She then said this male forced
her to bed and raped her.
She said Lwando hide the
key and squeeze her on her arm and never let her go. He then
repeatedly raped her until this morning. He
then released her this
morning at about 06:00. She said from Lwando’s place she went
to (friend) to collect her track top.”
[18]
A victim statement in the docket (marked A2
and according to a contemporaneous note in the police diary obtained
from the child
also on 13 March 2018) confirms the details of the
offences as follows:
“
On
Monday 2018-03-12 at about 23:00 hours I went to (friend) house to
collect my track top. Then on the way I came across with unknown

B/male to me who introduced himself as Lwando. He asked me where I am
going. I tell him that I’m going to (friend) house
to collect
my track top.
He then offered me to
give me his cell phone to call or WhatsApp (friend). He then said we
must go to his place to take data. When
we arrived at his place he
dragged me to his shack and locked me inside. I then screamed for him
to open the door. He said he's
not afraid of anything. He came from
jail for years. He then pushed me to his bed and forced me to take
off my clothes by himself.
Then he take off his clothes. He then
forced open my legs and force his penis to my vagina and move up and
down on top of me without
using condom.
After he finished he move
away and hold me to his arm and never let me go. He again get on top
of me and put inside his penis in
my vagina and rape again moving up
and down. Then after that he hold me to his arm until 06:00 in the
morning. He released at 06:00.”
[19]
Also
filed of record in the docket opened consequent to the complaint is a
J88 medical report that confirms a vaginal examination
of the child
on 13 March 2018 at 13h23. The recorded history given by the child to
the forensic nurse according to her report is
that she was sexually
assaulted by an unknown male who also threatened her. Also noted is
that the child was “
emotionally
hurt”
and “
shocked.”
The gynaecological examination reveals that her
labia
minora
and
posterior
fourchette
were bruised. Her
fossa
navicularis
was swollen and clefts were
visible on her hymen at the 3, 6 and 9 o’clock positions
(albeit she was reported to have had
consensual sexual intercourse a
few days before the examination.) The report is endorsed with the
examining practitioner’s
conclusion that “
findings
are consistent with fresh vaginal penetration
”.
[20]
Constable Manga was the arresting officer.
He unfortunately died on 24 April 2023 shortly before the trial
commenced.
[21]
In carrying out the warrantless arrest he
acted in his capacity as a “
peace
officer”
within the meaning of
the provisions of section 40 (1) of the CPA.
[22]
Both charges of rape (and kidnapping) are
Schedule 1 offences. A charge of rape is also a Schedule 6 offence
for bail purposes.
[23]
Constable
Manga received the docket for his attention and investigation on 13
March 2018, ostensibly after the two founding statements
had been
obtained.
[5]
[24]
The
plaintiff was charged after his arrest on 14 March 2018 at the
Vulindlela police station ostensibly on a charge of rape based
on the
complaint by the child’s father.
[6]
The SAPS 14 (“
Notice
to Rights in terms of the Constitution
”)
was administered to him at 10h00. The offence noted on the face of it
is one of “
Rape
”.
[25]
Constable Manga filed a contemporaneous
official statement documenting the fact of his arrest of the
plaintiff. His affidavit, deposed
to on 14 March 2018 at 10h00,
states as follows:
“
I
BANDILE MANGA state under oath in English
1.
I am a Constable with Persal No. …. currently attached at
Mdantsane FCS, 256 Edcott Square, Oxford Street, Southernwood
2.
I wish to state that on 2018-03-14 I was officially on duty. I
receive a docket from Vulindlela CAS 83/03/2018 Rape.
[7]
I went to the victim for interviews and she took me to the suspect’s
place. When I get at suspect’s place …
I arrested Lwando
Kave. She was pointed out by the victim (child’s name) and he
was free from injuries, I detained him at
Mdantsane SAPS as per SAP
14/124/03/2018 ...”
[26]
A further statement was obtained from the
child on 14 March 2018 in the presence of her father, the
complainant. It is not clear
whether it was obtained before or after
the plaintiff’s arrest but it in any event states, consistently
with her initial
statement, that:
“
On
Monday 2018-03-12 at about 22:00 I was on my way to (friend’s)
home who is staying at... I came across with an African
male who
introduced himself as Lwando. He asked me what I want at that area at
that time. I told him that I'm going to (friend’s)
home to
fetch school document and a jersey and he asked me how may he help
me. I borrow phone from him to phone (friend). He told
me that we
must go to his home to fetch a phone with a data.
When we got to his home
he grabbed me to his shack that is behind to the main house. He
locked the door and force me to take off
my clothes. I tried to cry.
He stop me by saying he is not scared of anything. He will go to jail
for me he came from jail. I must
shut up because I will make his
family to wake up when I am making a noise. He then take his clothes
off and mine. He force my
legs to open and inserted his penis into my
vagina and rape me. After he finished, he just sleep next to me and
didn't allow me
to leave.
I didn't check the time.
He repeatedly raped me again and fell asleep after he finish. At
06:00 I wake him up and tell him that
I want to go home. He opened
the door for me and let me go and I went to tell (BM) who is our
neighbour what had happened to me.”
[27]
A warning statement was taken from the
plaintiff by Constable Manga on 14 March 2018 at 13h00. In it the
plaintiff denies the allegations
of rape (the kidnapping is not
referenced) but he admitted to sexual intercourse with the child. He
maintained that this had occurred
with her consent. (Evidently the
issue of the child being underage within the meaning contended for in
section 15 (1) of the Criminal
Law (Sexual Offences and Related
Matters) Amendment Act, No. 32 of 2008) was not a focal feature of
the interview.
[28]
Also on the 14
th
amidst all the other aspects reportedly dealt with in the policy
diary, a bail information sheet was completed (A 14) in which
the
election on the form is made not to oppose the plaintiff’s
release on bail. Other factors noted on the form favourable
to the
plaintiff are that his address had been verified, that he had
children, and that he had co-operated with the police. At
most 7 days
were said on the form to have been required to move the
investigations to a state of completeness.
[29]
Pursuant to the plaintiff’s arrest he
was detained at the Mdtansane police station until his first
appearance in the Mdtansane
district court on 15 March 2018 under
case number A493/18.
[30]
At his first court appearance the plaintiff
was represented by a legal aid attorney. He indicated his intention
to apply for bail
and was remanded in custody by a bench warrant
until 16 March 2018 for these purposes. Also recorded is that the
State was opposed
to bail.
[31]
On 16 March 2018 the magistrate noted that
an alternative address was to be checked. Also recorded was the fact
that a Schedule
6 offence was on the table, which category of offence
was confirmed by the plaintiff’s attorney to be applicable in
the circumstances.
By agreement the matter was postponed to 22 March
2018 for a formal bail application. The plaintiff was remanded in
custody.
[32]
On the 22
nd
the matter was postponed again to 26 March 2019 for a bail
application. The reason that was noted was that the “
I/O
(Investigating Officer)
is not before
court
”.
[33]
On 26 March 2019 the court noted as
follows:
“
Accused
person is before court. PP. Bail not opposed. Affidavit and SPP
certificate attached as an exhibit.
Def: I confirm appearance
and applicant also filed an affidavit.
Accused warned not to
communicate with (child) and to
attend case until final…
ROW (remanded on warning)
to 23/4/2018.”
[34]
The certificate provided to the court dated
26 March 2018 was ostensibly written and signed by “
SPP:
H M Ackermann – Senior Public Prosecutor: Mdantsane
”.
It states as follows:
“
Mdantsane
District Court
RE: AUTHORITY TO
PROCEED WITH A SCHEDULE 5 / 6 BAIL APPLICATION UNOPPOSED:
VULINDLELA
CAS 83/03/2018
I hereby give authority
to
Ms Campbell
, the Prosecutor in Bail court, to proceed with
a SCHEDULE 6 bail application unopposed in the matter of
The State
versus LWANDO KAVE
, Court case number
A493/18
. The charges
against accused,
Rape (Victim under 16 years, multiple times)
In terms of Part 9 par C2
of the NPA Policy Directives “No prosecutor may agree to the
setting of bail where Schedule 5 and
6 offences are involved without
prior authorization from the DPP or SPP in certain Divisions”.
Also see
Sect 60(2)(d)
of the
Criminal Procedure Act 51 of 1977
.
The reasons why the
prosecutor may proceed with bail application unopposed are:
State’s case
against accused is weak.
Please contact the writer
hereof if any further information is required.”
[35]Mdantsane
FCS, 256 Edcott Square, Oxford Street, East London.
Also evidently provided to the court was an
affidavit by Constable Manga which, consistent with what had been
recorded in the Bail
Information Sheet in the docket dated 14 March
2018, confirmed that he had no objection to the plaintiff being
released on bail.
In it he stated as follows:
“
1.
I am a Constable with Persal No. … currently attached at
Mdantsane FCS, 256 Edcott Square, Oxford Street, East London.
2. I
wish to state that I am the investigating officer of this case. I am
not opposing bail. The accused doesn’t have previous

convictions and pending cases, he has got alternative address at …..
Scenery Park and is confirm(ed) by me. I have consulted
with the
complainant. She is not in fear of the accused and he is not a flight
risk.”
[36]
The further postponements of the matter
until the case was transferred to the regional court in terms of
section 75
(1) of the CPA on 4 July 2019 reflect that the plaintiff
appeared on his own recognizances at each subsequent interval.
[37]
During the course of the investigation of
the matter further statements and records were supplemented. The full
complement of documents
included a first report statement by the
child and fathers’ neighbour, chain statements by officers who
handled the forensic
samples after her medical examination, various
records documenting how the plaintiff’s arrest had been
processed and his
constitutional rights were administered to him, his
warning statement, SAP 69 record (clean), the child’s birth
certificate,
bail information sheet, competency and victim impact
report etc.
[38]
On 9 July 2019 the plaintiff made his first
appearance in the regional court under case number RC1/65/2018.
[39]
The charges framed against him in that
court were of rape and kidnapping. The State invoked the provisions
of
section 51
(1) and Schedule 2 of the
Criminal Law Amendment Act,
105 of 1997
(“
CLAA
”)
on the basis that the child was under the age of 16 years when the
offence was committed, and on the further basis that
she had been
raped more than once.
[40]
After several postponements the trial
ensued and was digitally recorded.
[41]
The plaintiff pleaded not guilty. The child
testified with the assistance of an intermediary which was followed
by the testimony
of the first report witness (BM). Her father also
testified. The J88 medical report and the child’s birth
certificate were
entered into evidence uncontested. Her statement
introduced during the course of the proceedings was also handed in as
an exhibit.
The accused testified in his own defence and at the
conclusion of the trial on 25 January 2019 was acquitted on both
counts.
[42]
It needs to be stated that chief among the
reasons of the court for his acquittal, which was dealt with quite
sensitively in the
judgment, is that the child was not a good witness
essentially because she had not been honest about the reason why she
had been
out late on a school night. The court remarked that her
evidence was “
on shaky grounds”
and that it was not necessarily supported by the medical evidence in
the sense that the injuries noted could also have been caused
by
vigorous consensual intercourse. There were also discrepancies
between the reports that she had made to her father and to BM,
the
first report witness. The child’s evidence was additionally
noted to have been improbable in several respects. In the
result the
court concluded that her testimony as a single witness did not
measure up against the standard required.
[43]
The plaintiff was in consequence given the
benefit of the doubt. The magistrate concluded his judgment in the
trial with the following
pronouncement:
“
The
accused and his witness, even though I already mentioned that I stand
critical against their conduct on the night in question
they were not
bad witnesses. And in the light of what I have said about the
evidence of the complainant, no Court would be able
to find that the
accused’s version is not reasonably possibly true under the
circumstances.
The state failed to prove
beyond a reasonable doubt that this child was raped on the night in
question and the accused’s assumption
that she was over the age
of 16 at the time is accepted as reasonably possibly true. Therefore,
under the circumstances the accused
is found
NOT GUILTY AND
DISCHARGED ON BOTH COUNTS
.”
The trial in the
present action:
[44]
In
the present matter the plaintiff testified first to meet the onus on
him to prove the claim of malicious prosecution.
[8]
It was acknowledged that the defendant bore the onus to justify the
plaintiff’s arrest and detention in the respects that
were
evidently placed under the scope of the illegality enquiry suggested
by his pleadings.
[9]
[45]
T
he
contents of the relevant police docket and the separate court records
concerning the plaintiff’s appearances before the
district and
regional courts respectively was also entered into evidence by
consent in the trial.
[10]
The
court record included a full transcript of the trial itself.
[46]
I should add that Ms. Cossie who appeared
for the defendants applied during the course of the trial under the
provisions of section
3 (1)(c) of the Law of Evidence Amendment Act,
No. 45 of 1998, for the arrest statement of the late Constable Manga
to be admitted
into evidence on the basis that it was in the interest
of justice to do so. The application was opposed by Mr. Maduma (who
appeared
for the plaintiff) essentially on the basis that his client
stood to be prejudiced given the fact that he would be unable to test

the contents of the statement under cross examination. I ultimately
declined the application and ruled that the statement should
go in on
the regular basis that affidavits in a police docket in a claim of
this nature do, namely that it was (in the docket)
what it purported
to be. In ruling as I did, I gave recognition to the potential
prejudice complained of on behalf of the plaintiff
but was satisfied
in any event that there was more than enough common cause evidence
that spoke to the issue of how Constable Manga
had gone about
arresting the plaintiff, and for what ostensible reason.
The plaintiff’s
testimony:
[47]
The plaintiff related the circumstances
under which he came to be arrested on 14 March 2018.
[48]
I need not repeat his testimony concerning
how he came to have sexual intercourse with the child. His version is
that it was an
entirely consensual encounter. It had been the first
time for him and the child to have met although a mutual friend had
facilitated
his “
love proposal
”
to her which had ostensibly gone down favourably. What happened
between them on the night in question was consistent with
his version
given in the warning statement which Sergeant Manga took from him -
voluntarily although begrudgingly because he maintains
that he had
made an election not to disclose his defence except with the
assistance of a legal representative. It is also consistent
with his
testimony given in the trial in the regional court.
[49]
It had therefore come as a surprise to him,
so he related, that on the morning of the 13
th
he had had a call from his home to the effect that a police officer
in the presence of the child had come by to report to his grandmother

that she had been raped by him.
[50]
Acting
in response to this information he had proceeded to the child’s
home after work to see her father. He was in the company
of the same
friend who had facilitated his meeting with the child the previous
night and who pointed out their place of abode to
him.
[11]
They did not find him at home, but on the road nearby in his motor
vehicle. After introducing himself to him, the plaintiff claims
that
her father did not want to be reasoned with or hear him out in
respect of the explanation that he had offered. (He did not
disclose
what his explanation to him was although under cross examination he
clarified that he had informed him that the sexual
intercourse with
his daughter had been consensual.) Further in parting the complainant
said to him that he would make sure that
he got arrested because he
had raped his child.
[51]
The following morning, he heard a knock on
his door. He had not gone to work because he had anticipated the
encounter with the police
and had intimated to the father at their
meeting the night before that he would find him at his home if he
wanted him. Constable
Manga arrived with the complainant in tow.
Asked by the arresting officer if he was the suspect the complainant
said “
Yes, here is this dog
!”
Constable Manga handcuffed him and took him away in a police van to
the police station. As they were proceeding towards
the gate, they
passed the child who was standing with his uncle in the yard.
[52]
With reference to what was stated in the
prosecutor’s certificate that the case against him was “
weak
”
he explained that he felt abused because nothing had changed so to
speak to explain the about turn in permitting him to
be released on
warning on 26 March 2018 whereas the State’s attitude prior
thereto had been that his application for bail
should be opposed.
[53]
Regarding the verdict of the regional
court, he lamented the fact that the deprivation of his liberty could
have been avoided if
he had only been given a chance to state his
case before being arrested. He clarified in this regard that
Constable Manga had not
given him such an opportunity to inform to
him what had happened. Asked why he thought the officer had behaved
this way towards
him he explained
that it
had appeared to him that he chose to listen to the child’s
father rather than giving him an opportunity to explain.
He asserted
that if Constable Manga had given him the space he would have
conveyed to him what he had said in his defence to the
father the
previous evening. Prompted by the direct question whether there might
be an additional reason for his perception that
the arresting officer
had purportedly taken sides with the complainant, he replied that
that was because they were both police
officers and were working
together.
[54]
He could not comment on the defendant’s
plea and deferred to those who know the law. He was however
concerned, given the senior
public prosecutor’s certificate and
comment in it that the case against him was weak, that this made for
a tenuous basis
for him to have been held in custody until 26 March
2018.
[55]
Under cross examination he acknowledged
however that any parent would have intervened upon receiving news
that his child had been
abused. He further appeared to accept that in
avenging his own child, the complainant was not ganging up with the
arresting officer
so to speak. He accepted that it was not improper
for the complainant to have gone to the police station to open a case
of the
rape of his child.
[56]
Concerning
Constable Manga’s contentious arrest statement, he agreed with
everything stated in it except he wished to point
out that it was in
his opinion not true for the deceased deponent to have said that he
had been pointed out
by
the child
.
As an aside, although according to his own testimony it was the
complainant who had identified him as the suspect, the child was

however present in close proximity on the occasion of his arrest.
[12]
[57]
As for why he was denied bail at the outset
of the case’s enrolment, he acknowledged that his legal
representative or someone
along the line had indeed explained to him
that a Schedule 6 offence was implicated as well as the onerous
import of these provisions.
[58]
He relented, regarding his claim for
malicious prosecution, that those who decided to prosecute him and to
whom it fell to decide
whether there was objective merit in the
charges knew more than him about the law.
[59]
He further acknowledged knowing that it was
a criminal offence to have sex with a minor.
[60]
As an aside it seems to never have occurred
to him that the child’s age was the reason for his arrest at
the instance of the
complainant (who was her legal guardian), and in
setting the tone for the gravity of the offence.
The evidence of Ms.
Jodwana-Blayi:
[61]
Ms. Jodwana-Blayi,
an
experienced prosecutor with the rank of State Advocate (working as a
prosecutor at the Mdantsane magistrate’s court in
2018)
testified that she had been responsible for enrolling the matter at
the court on the date of the plaintiff’s first
court appearance
as part of her obligation to screen new dockets for prosecution.
[62]
She was satisfied from a reading of the
material in the docket that a
prima
facie
case existed against the
plaintiff based on the A1 report of the complainant, the two
statements of the child stating that she
had been raped by the
plaintiff more than once, the J88 medical report that gave credence
to her claims of sexual penetration,
the first report statement of
the family’s neighbour that stated that the child had come to
her crying telling her that she
was raped,
as
well as
the warning statement of the
plaintiff in which he had related that he had sexual intercourse with
the child consensually.
[63]
Asked what made her sure that there was a
prima facie
case, she alluded to the corroboration of the child’s statement
with reference to the medical report that there was penetration
and
that fresh injuries were noted to have been in evidence.  There
were the reports of both the father and the neighbour,
the latter
stating that the child came to her crying and saying that she had
“
just been raped”
.
To the father she had said that she had been raped and more than once
at that.  The plaintiff’s own warning statement
also
corroborated the complainant’s report that she had been
sexually penetrated. The child’s age also weighed as a
factor
with her because even if the sex had been consensual on the
plaintiff’s version, she considered that the “
suspect
was admitting to having sexual intercourse with a child under the age
of 16.”
[64]
She accordingly enrolled the matter and
also noted that because of the charges a Schedule 6 offence was
implicated which meant that
the plaintiff would have to apply for
bail whether the application was opposed or not and that he would
have to remain in custody
until the matter could be dealt with in
“
bail court
”.
[65]
She explained the processes that apply to
facilitate the application happening and the expectation that these
be dealt with at the
latest within a window of seven day’s
depending on the circumstances applicable to each matter especially
regarding the question
what further investigation might still be
necessary. The state of the bail appeal court roll was also a factor
in this respect.
[66]
With reference to the certificate provided
by the senior public prosecutor she explained that she was the only
incumbent permitted
to give authority to a prosecutor to proceed with
a bail application unopposed in the case of Schedule 5 and 6
offences.
[67]
She disagreed with the sentiments expressed
in the latter’s certificate that the case against the plaintiff
was “
weak
”.
To the contrary she saw a
prima facie
case in the facts that the child had been penetrated and was
underage. In any event, so she explained, the categorization of the

case as “
weak
”
was only for bail purposes and to give authority to proceed with an
unopposed bail application.
[68]
She was not in agreement that her own
decision to enroll the case had purportedly been overridden by the
instruction given by the
senior public prosecutor in this instance.
Instead - so she emphasized, the latter instruction had been provided
expressly and
only for bail purposes. She reasoned further that if
her senior had meant to overrule her decision as the person who had
screened
the docket, she would have gone further and indicated that
the case should be withdrawn then in its entirety.
[69]
She confirmed that in accordance with
standard procedure that pertained at the court at the time the matter
would have been transferred
from the channelizing court (Court A) to
the bail court (Court B) for the plaintiff to make his bail
application which is what
the record confirmed in this instance.
[70]
Under
cross examination she was not inclined to agree that she had rushed
her decision or that she had not been given adequate time
to read the
docket and determine the fate of the matter as a case to be enrolled.
She also disagreed, with reference to an entry
made by her in the
docket to the investigating officer to conduct certain
investigations, that this reflected her uncertainty that
the matter
was ready at that point to be enrolled.
[13]
Indeed, so she insisted, there was a
prima
facie
case. She clarified even further that one does not enrol a case
“
because
it is ready for trial”
,
but rather because it is one in which you “
see
there is a prima facie case that the accused has to answer
.”
[71]
Despite how the certificate might have made
it look and her concession that nothing much had happened in between
her decision made
to enroll the matter and the plaintiff’s
release on warning except that his address had been verified, she
strongly disagreed
that at that moment (or indeed even at the time of
her testimony) that the case against the plaintiff was in fact weak.
[72]
Her concluding remarks refuting that she
had taken a decision in the haste of the moment, or was undecided
about the strength of
the case against the plaintiff, or that she had
acted with malice towards him, is instructive:
“
MR
MADUMA
: So
what I am trying to get at is when you know that there are critical
information that is missing from the docket which perhaps
had they
been obtained, would not have led to your senior finding that the
State case is weak, would (it) not have been prudent
on you and
required of you to have made that decision at that point before
enrolling the matter?
MS
JODWANA-BLAYI
:
But unfortunately for this one, all the critical or crucial
information was in the docket, hence I made that decision to enrol

the matter.
MR
MADUMA
:
The critical information that made the State’s case weak.
MS
JODWANA-BLAYI
:
Well, I have already stated, M’Lady, that to me the case was
strong. To me there was a
prima
facie
case.
MR
MADUMA
:
Well, Ms Jodwana-Blayi, I put it to you that the plaintiff came to
Court and told the Court that he felt abused by the process
of the
law and in the process of the law, he meant prosecutors in
particular. And because you as a prosecutor, you would know the
law
and you know what was required but due to your failure, his whole
life was uprooted. I put it to you that your actions and
your
decision in the haste of 30 minutes have caused such damage to a
young man. And it could only be construed as malicious in
nature.
MS
JODWANA-BLAYI
:
May I respond?
MR
MADUMA
: Do
you care to comment?
MS
JODWANA-BLAYI
:
Thank you, M’Lady. M’Lady, I applied the law. I did the
best to apply the law to protect the rights of the complainant
at
that stage. And at that stage, I was of the opinion that there was a
prima facie
case against the accused. And the law required that the accused be
kept in custody because of the seriousness of the charge he
was
facing. And, M’Lady, I am also of the opinion that, M’Lady,
I am also saying that that was not malicious. I was
not malicious. I
did not even know the accused.
MR
MADUMA
: Ms
Jodwana-Blayi, as a prosecutor, are you the officer of the Court or
the officer of accused people? No, I am asking you in your
role, who
do you represent in your role as a prosecutor?
MS
JODWANA-BLAYI
:
As a prosecutor, you have to apply the law. You have to see if there
is a case. You are not a persecutor but a prosecutor. You
apply the
law. I have to apply the law and that is what I did.
MR
MADUMA
: In
your protection of the rights of the victim, did you consider the
protection of the rights of the accused?
MS
JODWANA-BLAYI
:
I did. Hence, I also instructed the investigating officer to make a
follow up on the accused’s version.
MR
MADUMA
:
All the while making a decision that would send him certainly not
only to the holding cells, but to prison.
MS
JODWANA-BLAYI
:
It is unfortunate it is because of the charge he was facing and the
law required that he be kept in custody.”
[73]
In re-examination she demonstrated her
grasp of what a
prima facie
case means as well as her understanding of what in the statements
conduced to establishing the requisite elements for the offence
of
rape:
“
MS
COSSIE
:
When a case, when it is stated that a case is weak would that, does
it mean that there is no case in your understanding?
MS
JODWANA-BLAYI
:
In my understanding, when one says that the case is weak, to my
understanding it says, yes, there is a case but it is not that
strong
when you say it is weak, to my understanding. It does not say there
is no case. Hence, I said if there was no case, at that
stage it was
also at the right stage to withdraw the charges, if there was no
case, M’Lady.
MS
COSSIE
:
Just the
prima
facie
case, what does it consist of if you make your mind that there is a
prima facie
case?
MS
JODWANA-BLAYI
:
When you say that there is a
prima
facie
case, it means with simple language that, yes, there is evidence and
then the accused has to answer. He must answer because the

complainant is saying this and then the accused must answer, no, I
did not do it. Then he must bring evidence and the complainant
bring
evidence. That is the simple understanding.
MS
COSSIE
:
Now to establish a
prima
facie
case, the elements of the rape, what are they of the charge that was?
MS
JODWANA-BLAYI
:
It is an unlawful and intentional penetration of the vaginal
penetration of the complainant. So there was unlawfulness, that means

there was no consent. There was intention to do what he did.
Intention must be there, unlawfulness must be there. There must be
no
consent. There must be penetration and all those were there, all
those elements were there.”
[74]
Finally,
she explained that the aspects she had asked the investigating
officer in the diary to investigate did not amount to the
kind of
supplementation that in any way detracted from the existence of a
prima
facie
case that in her view was already there from the outset. Instead,
what she had asked him to follow up on was in the nature of “
add
on’s”
or “
cherr
(ies)
on
(the)
top
”
of the substance that mattered.
[14]
In her opinion the statements in the docket at the time of her
decision to enroll were “
enough”
to have properly made her decision.
The evidence of Ms.
Makazi:
[75]
Ms. Makazi, a public prosecutor with 18
years of experience at the time of her testimony, explained that she
had received the docket
in her capacity as regional court prosecutor
after the matter had been transferred to that court from the district
court. Her obligation
was to consult before the trial date had been
set, but the child was in Gauteng and could not be present due to
financial constraints.
She therefore at first consulted only with her
father and the first report witness but had the opportunity to confer
with the child
later when she was brought to court on the morning of
the trial. After meeting with her she was satisfied that there was a
prima facie
case to proceed with the trial.
[76]
Her decision too that reasonable and
probable cause existed was based on the material in the docket and
she reasoned that whether
on the child’s version or the
plaintiff’s, he still had a case to answer because of her being
underage. She saw no
reason to have made any recommendation at the
time to throw in the towel on the prosecution.
[77]
As for the senior public prosecutor’s
comment in the certificate at the time that the State’s case
was weak (it was
accepted that this document would not have been in
the docket but attached to the district court record) she was not of
the view
that this could have been construed to mean that there was
“
no case
”
against the plaintiff. If that were the case, so she rationalized,
then the senior public prosecutor who had had the power
at her
disposal to do so would have withdrawn the matter, period.
[78]
She eloquently explained why the outcome of
the trial was not determinative of the question whether there had
been reasonable cause
to have persisted with the prosecution as in
the first place:
“
MS
COSSIE
:
Would the outcome of the trial indicate that there was malicious
prosecution?
MS
MAKAZE
:
No, it is not an indication that there was malicious prosecution. We
should understand that our duties
as prosecutors is to have a
prima
facie
case and proceed with it. We do not announce the verdict or decide
whether a person is guilty or not. That is the duty of the Court

after hearing all the evidence, that this one is guilty, that this
other one is not guilty, not a prosecutor’s job.
MS
COSSIE
:
Looking at the documents and your view about the case and that
certificate, the consultations you had,
would you have foreseen the
possibility that you were acting wrongly or incorrectly?
MS
MAKAZE
:
No, no, I would not. I would – if there was a possibility –
that possibility, I would have
seen[?] it[?]. But in this particular
case there was a case against the accused.”
[79]
Based on what was in the docket, and her
own views on the merit of the case (even despite the certificate) she
denied that she had
acted wrongfully, unlawfully, or maliciously in
persisting with the prosecution. As for the question of the
reliability of the
witnesses, she repeated her view that it had
ultimately been up to the court to make findings of credibility.
[80]
Under cross examination she explained that
even though she had to wait to consult with the child until the day
of the trial her
statement that she had been raped trumped the
plaintiff’s lamentation that he had in the meantime had to
endure the burden
of living with the accusation implicated by the
continuing prosecution.
[81]
She was alive to delays experienced in
prosecutions in the district court and explained that for its part
the regional court chased
a finalization target of 9 months from the
date of the transfer of cases to its jurisdiction until finalization.
[82]
She agreed that prosecutors have the power
to withdraw cases but pointed out that this power cannot be applied
recklessly. So, for
example she explained that one cannot withdraw a
matter simply because it has been on the roll for a long time. As
long as there
is an explanation for why the matter is still on the
roll, the matter is required to remain there. She agreed though that
matters
should not be postponed indefinitely or without regard to the
objective circumstances that apply in each instance.
Unlawful arrest and
detention:
[83]
The customary approach to be adopted in
determining the issue of the legality of the arrest itself (which by
its mere happening
constitutes an infringement of the plaintiff’s
personality rights that is
prima facie
unlawful), 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. This subsection
provides in terms that:
“
(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.”
[84]
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.
[15]
[85]
As
indicated above, it is not in contention that Sergeant Manga was a
peace officer within the meaning and contemplation of section
1 of
the CPA. It is furthermore not in contention that both offences of
rape and kidnapping are offences listed in Schedule 1 to
the CPA.
[16]
[86]
There is of course no evidence other than
the plaintiff’s and what appears from the police docket that
offers any insight
into what prompted Constable Manga to have carried
out the arrest.
[87]
The
test whether a suspicion is reasonably entertained within the meaning
of s 40 (1)(b) of the CPA is objective.
[17]
In
this instance, would a reasonable man in the officer’s position
and possessed of the same information have considered that
there were
good and sufficient grounds for suspecting that the plaintiff had
committed the offence of rape.
[18]
[88]
In
Mabona
and Another v Minister of Law and Order and Others
[19]
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.”
[20]
[89]
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.”
[21]
[90]
Although Constable Manga could not speak
for himself there is in my view common cause evidence on the basis of
which it can inferentially
be found as a probability that he
entertained a suspicion that the plaintiff had committed the offence
of rape. Firstly, this is
what the complaint in the docket went
about, underpinned by the two founding statements and the report of
the forensic nurse. Even
if the investigation diary note is cryptic
about what the late officer did upon becoming seized with the docket
for investigation
purposes, this gap is filled by other evidence.
[91]
So, for example, the plaintiff conceded in
his evidence that, before his actual arrest, a police officer had
arrived together with
the child at his home to look for him on the
premise that he had raped her. This means that the officer - who by a
process of deduction
was Constable Manga, would have personally
interacted with the child about the complaint enough to understand
who was implicated,
where the rape had happened, and where the
suspect could be found.  The plaintiff also anticipated, based
on his interaction
with the complainant the night before, that a
police officer would certainly be approaching him to arrest him on
allegations of
raping his daughter. The plaintiff further clarified
in his testimony that Constable Manga’s arrest statements,
admitted
into evidence on the basis of what it purported to be -
namely an official account of that arrest, fell to be challenged only
on
the basis of the officer’s say so in it that he had arrested
the plaintiff on a pointing out
by the
child
(whereas on his version the
pointing out had happened at the instance of her father), meaning
that he agreed with the rest of the
assertions therein.
[92]
Further, what happened after the
plaintiff’s arrest, documented in a variety of ways in the
docket, confirms the obvious reason
why the plaintiff was arrested
which was to answer to a charge of rape in court the following day.
It follows almost ineluctably
that
that was what Constable Manga’s intention was in going to his
home. This is the inescapable background that preceded his

warrantless arrest.
[93]
Further, since the defendant’s plea
was drafted before Constable Manga’s demise, it can plausibly
be inferred in my
view that the first defendant’s reliance on
the provisions of section 40 (1)(b) of the CPA would have been
informed on the
basis of his instructions to his first defendant’s
legal representatives at the time that this had been the legal basis,
and the background information the motivation, for the arrest.
[94]
As for the reasonableness of his suspicion,
the two founding statements and the J88 report, even taken on their
own, more than adequately
support a
prima
facie
case of rape against the child
and the inference is irresistible that Constable Manga based his
decision on these founding documents
in addition to the forensic
nurse’s conclusion. There can also be no doubt that the child’s
affidavit (whether true
or not) would objectively have created the
impression that the plaintiff had used some measure of physical force
to achieve his
ends and that he had threatened the child. He had
further boasted that he was no stranger to crime and had served time
in jail
before. There was the added emphasis that the child had been
held against her will and repeatedly raped through the night, all of

which features would automatically have endowed the debacle with
severe gravity.
[95]
The
plaintiff’s acceptance that Constable Manga must have consulted
with the child as he said he did in his official arrest
statement
also confirms that he went about the matter sensibly before swooping
in to make the arrest. A further indication is that
the matter was
investigated and dealt with by an officer assigned   to the
Family
Violence, Child Protection and Sexual Offences (FCS) unit, which is a
specialized unit within the South African Police Service
that focuses
on crimes involving children. Specifically, their mandate is to
investigate and assist in cases of sexual assault
against children.
Evidently the steps taken in the investigation of the matter followed
a checklist by their members.
[22]
[96]
Leave aside the serious nature of the
report the plaintiff would also by necessary implication have had to
answer for the fact that
he had had sexual intercourse with an
underage child, hence Constable Manga’s acting on the father’s
request to initiate
a prosecution would have assumed solemn
importance.
[97]
As an aside,
the
provisions of section 54 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, place a legal obligation on
a person
who has knowledge of a sexual offence that has been committed against
a child to report such knowledge immediately to
a police official on
pain of being prosecuted for a failure to report such knowledge.
Under the provisions of section 54 (1) (b)
of the Act, a person found
guilty of such failure under this provision is liable on conviction
to a fine or to imprisonment for
a period not exceeding five years or
to both a fine and such imprisonment.
[98]
Given
that the child’s father, as he probably felt himself obliged to
do, had laid a criminal complaint that received serious
traction, it
is entirely implausible in my view that Constable Manga would not
have followed proper standing orders and procedures
in carrying out
his arrest of the plaintiff without a warrant.  Indeed, it is to
my mind telling that the plaintiff has not
complained of any
shortcoming in the procedure adopted by Constable Manga in arresting
him, except to suggest that he felt under
pressure when it came to
making his warning statement and that he would have preferred to have
had his attorney present or to have
not disclosed his defence during
the interview.
[23]
[99]
It
is also improbable in my view that Constable Manga would not have
been sensitive to the quandary that the plaintiff found himself
in. I
say so because contemporaneous with his charging of the plaintiff and
taking his warning statement he indicated in the bail
information
form
[24]
that it was not his
intention to oppose bail. Evidently, he followed through on that
basis after arresting the plaintiff by confirming
to the magistrate
on affidavit that he had no objection to his release.
[100]
In all the circumstances I am satisfied
that the first defendant has discharged the onus on him to prove
justification for the plaintiff’s
arrest. A reasonable police
officer in Constable Manga’s position would have been more than
satisfied that there were good
and sufficient grounds to arrest,
indeed he would have been lawfully obliged (especially as a member of
the FCS unit) to act on
the report of the child’s father that
his 14 year old daughter had been raped even if the thought might
have occurred to
him that the child had been a willing participant in
the sexual tryst. This is because sexual intercourse with a child
under the
age of 16 years is also an offence under section 15 (1) of
the Criminal Law (Sexual and Related Matters) Amendment Act and a
Schedule
1 offence at that.
The discretion to
arrest:
[101]
It
is so that the matter does not end there because once the required
jurisdictional facts to carry out a warrantless arrest are
present a
discretion whether or not to arrest arises.
[25]
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.
[26]
[102]
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 (1) of
the CPA, the arrest will be unlawful
for that reason alone.
[103]
The
plaintiff in his particulars of claim did not allege that there was
anything untoward in the manner in which Constable Manga
has
exercised his discretion.
[27]
It only transpired in his testimony that he believed that Constable
Manga was taking sides with the complainant but this was merely
a
perception on his part not based on any facts to justify this as a
concern. It seems further that it never even occurred to the

plaintiff to complain that the arresting officer should have
considered less invasive means of bringing him to justice. His
contention
at the end that he should never have been arrested at all
seems to have been predicated instead on an after-the-fact awareness
of the senior public prosecutor’s certificate provided during
the bail proceedings that the case was purportedly weak and
his
successful discharge at the end of the trial.
[104]
Peace
officers are co-incidentally entitled to exercise their discretion as
they see fit, provided that they stay within the bounds
of good faith
and rationality.
[28]
[105]
In
a rationality review, the critical enquiry, as suggested by Harms JA
in
Sekhoto
,
[29]
should not be focused on the manner of the arrest but rather the
rationale for the arrest. The opinion formed in the present matter
to
have arrested the plaintiff concerned a serious offence of the rape
of a child more than once. The legislature has deemed it
proportional
to arrest a person for such an offence without a warrant provided the
jurisdictional requirements stipulated in section
40 (1) (b) of the
CPA are met.
[30]
(The
same applies to the offences of kidnapping and a contravention of
section 15 (1) of the Criminal Law (Sexual Offences and Related

Matters) Amendment Act.)
[31]
Therefore, the mere nature of the offence justified the arrest of the
plaintiff for purposes of bringing him to justice.  Constable

Manga further wasted no time in bringing the plaintiff to court the
never next day. He further offered that bail should not be
opposed.
It would not have been within his power to have released the
plaintiff from custody from the police station.
[106]
Nothing in the evidence suggests an
improper exercise by Constable Manga’s of his discretion to
have arrested the plaintiff
in these circumstances.
The claimed unlawful
further detention:
[107]
Even though I hold that the arrest itself
was lawful, which would have provided legal justification to have
detained the plaintiff
for purposes of securing his attendance in
court, the plaintiff in his particulars of claim still suggests a
basis to challenge
the lawfulness of his detention (from 15 –
26 March 2018) which beckons scrutiny by this court.
[108]
In every matter where there is a legality
enquiry to determine whether the deprivation of liberty is arbitrary
or without just cause,
the facts are always unique and it is
important that their relevance is consciously framed in the
particulars of claim as the defendant
needs to know what the case is
that he/she is required to meet.
[109]
Although
detention as a distinct separate act from arrest is by itself
prima
facie
unlawful, detention on its own (especially post court appearances in
the context of criminal proceedings where the accused’s
right
not to be deprived of freedom of liberty is protected by section 35
(1) (d) – (f) of the Constitution)
[32]
does not necessarily attract scrutiny unless there is something about
it that is claimed to render it unlawful. There is for example
no
automatic obligation on the Minister of Police, the National
Prosecuting Authority, or the Judiciary,
[33]
to have to justify detention (on its own or consequent to an arrest
as a necessary corollary thereof) in a vacuum or as a general

coverall in every claim in which they have been cited bearing upon
his claimed unlawful detention except where a proper basis is
laid in
the pleadings that invokes the obligation on one or other of the role
players to do so.
[110]
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 of liberty should
not
be regarded as wrongful in law, a plaintiff seeking to rely on
extraneous circumstances that his arrest and subsequent detention
was
unlawful is required to plead a basis therefor.
[34]
[111]
The starting point in any enquiry is to
consider the provisions of section 35 (1) of the Constitution that
spell out the rights
of an accused person who has been arrested for
allegedly committing an offence. These provisions, read in
conjunction with those
of section 12 (1) (a) of the Constitution that
lay down the underlying right of every individual not to be deprived
of freedom
arbitrarily or without just cause, provide as follows:
“
35.
Arrested, detained and accused persons.
—(1)
Everyone who is arrested for allegedly committing an offence has the
right—….
(
d
)
to be brought before a court as soon as reasonably possible, but not
later than—
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours
or on a day which is
not an ordinary court day;
(
e
)
at the first court appearance after being arrested, to be charged or
to be informed of the reason for the detention to continue,
or to be
released; and
(
f
)
to be released from detention if the interests of justice permit,
subject to reasonable conditions.”
[112]
It is the latter provision that invokes a
discussion concerning the circumstances under which or when the
interests of justice so
permit.
[113]
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.”
[114]
Section 40 provides for the defined
circumstances in which a peace officer may arrest any person without
a warrant. As indicated
above section 40 (1)(b) of the CPA was
invoked for present purposes.
[115]
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.
[116]
Section 50 (1)(a) of the CPA, for example,
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.”
[117]
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.”
[35]
[118]
It
is recognized, in terms of section 50 of the CPA, that once an
arrestee is brought to court the police’s authority to detain,

inherent in the power of arrest, is said to be exhausted.
[36]
[119]
Chapter 9 of the CPA deals with the
procedures to obtain bail and the rigors facing an accused person who
is charged with a Schedule
6 offence.
[120]
In this regard it is necessary to state the
obvious challenge 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;”
[121]
The issue of liability for unlawful arrest
and detention (especially the element of causation necessary to be
established) is rendered
quite complex by the fact that there are two
other essential role players in the mix than just the Minister’s
members who
by obvious implication are at least factually responsible
for the deprivation of liberty that commences with an arrest.
[122]
So, for example, in this instance after
Constable Manga arrested the plaintiff, he indicated that he would
not oppose bail. The
police were not authorised to release him
themselves. Their obligation was to deliver him to the court to be
dealt with by it in
accordance with the law. The plaintiff would have
been obliged, because of the nature of the charge and the fact that a
Schedule
6 offence was implicated, to have applied for bail. The
magistrate upon receiving him would have been obliged to detain him
in
custody until he was dealt with in terms of the law. It was up to
the plaintiff then to satisfy
the court
that exceptional circumstances existed which in the interests of
justice permitted his release.
[123]
When the matter appeared in the so-called
channelizing court it was transferred to the bail court. In both
courts the State had
indicated that it would oppose the application.
It appears that some or other verification of the plaintiff’s
alternative
address was sought. A date for the bail application was
arranged and was in the offing but the matter was postponed again.
One
gets the impression that this was because the affidavit Constable
Manga deposed to needed to be obtained. Ultimately it appeared
that
the court had three things at its disposal that predisposed it toward
a decision in the plaintiff’s favour to release
him on warning.
It had the plaintiff’s application in the form of an affidavit,
it had the affidavit of Constable Manga confirming
the factors in his
favour that could be taken to constitute exceptional circumstances,
and it had the certificate of the senior
public prosecutor which
permitted the prosecutor to contend, quite misleadingly in my view,
that the state’s case was weak.
[124]
In the latter regard I accept the evidence
of both prosecutors to the contrary that there was at all times a
prima face
case for the plaintiff to have met, and, self-evidently, objective
merit in the charges of rape (and kidnapping as ultimately framed
in
the charge sheet in the regional court).
[125]
In all that happened (or didn’t) I
find no unlawful conduct on the part of the first defendant’s
members (flowing from
the arrest at their behest) that either
influenced the prosecutor’s decision or led to the plaintiff
being detained in custody
from the date of his first court appearance
until his release on warning on 26 March 2018 other than what was
expected
ex lege
to have happened. There is no legal obligation as far as I am aware
and none was held up to the court that Constable Manga was
obliged to
file an affidavit. It seems that one was requested though and that he
was happy to oblige.
[126]
Quite evidently the plaintiff’s
detention in this short period, although of huge import to him, was
caused by the legal effect
of the provisions of section 60 (11) (a)
of the CPA and the independent decision of the prosecutor to oppose
bail until receipt
of the senior public prosecutor’s
certificate that gave the prosecutor authority to relent in the
State’s opposition
to his application.
[127]
But
even if I am to construe the plaintiff’s particulars of claims
as also suggesting that the police and or the prosecutors
maliciously
detained him (as a separate delict from the classic unlawful arrest
and detention claim for which the Minister of Police might
be held
liable arising from the continuum of the arrest in the first place),
the evidence also does not go so far as to establish
that the police
caused the plaintiff’s post court appearance by acting without
reasonable or probable cause and
animo
iniuriandi
with intent to injure him.
[37]
[128]
To the contrary, and for the same reasons I
find above that Constable Manga entertained a reasonable suspicion to
have arrested
the plaintiff in the first place, this provided an
enduring
ex lege
basis, following the arrest and first court appearance, to justify
his continued detention.
[129]
The same applies to the second defendants’
members. I accept the evidence of both Ms. Jodwana-Blayi and the
third defendant
that there was at all times a
prima
facie
case against the plaintiff that
would have justified his continued detention until he was dealt with
by law as provided for in
section 60 (11) (a) of the CPA. The sting
of the plaintiff’s allegations in his particulars of claim is
that the police and
prosecutors failed to apply their minds to the
facts, with the emphasis being placed on his defence that the sexual
intercourse
had been consensual, and that they had applied to court
that he especially be remanded in custody.
[130]
By the time of his post-court appearance
his defence was both known and recognized but would still not have
provided an objective
basis to either withdraw the charges against
him or to have rendered the case less merit-worthy so to speak. Apart
from the serious
allegations reported by the child, the fact of her
being underage also loomed large and required an answer. The
plaintiff was confounded
so to speak by the common cause fact that he
had had sexual intercourse with her in the first place. As for the
remands, these
would have followed on the basis provided for in
section 60 (11) (a) of the CPA.
[131]
The State could well have decided earlier
than it did to forego its opposition to the plaintiff’s formal
bail application,
but this was not the complaint outlined in his
particulars of claim. His case that was required to be met by the
defendants is
rather that the police and the State alike had promoted
a case without merit against him. For this he had relied on two key
events
that obviously conduced to his favour as far as he was
concerned. The first was the purported acknowledgment by the senior
public
prosecutor that the State’s case was “
weak
”.
The second was that he was ultimately acquitted.
[132]
The plaintiff’s ill-conceived
reliance on the “
weak case
”
theory does not assist his claim. I accept Ms. Jodwana-Blayi’s
sensible explanation that that decision and opinion
of the senior
public prosecutor related to the strength of the state’s case
vis-à-vis the bail application
,
with the certificate being the mechanism to have facilitated the
plaintiff’s release from custody without contestation.

Otherwise, the plaintiff would ostensibly not have succeeded in
proving that exceptional circumstances existed that in the interests

of justice permitted his release on bail. His application would
certainly have floundered.
[133]
Likewise, the fact that the plaintiff was
acquitted on the charges is his mere good fortune and does not
detract from the opinion
properly held in my view by both the
prosecutors (who properly acted with the required objectivity and in
the public interest)
that the criminal case at all times carried with
it reasonable and probable cause for its likely success and the
reasonable promise
of evidence to sustain the charges.
[134]
In the result I am satisfied that the
defendants have discharged the onus on them (within the narrow
confines of the case that they
were prevailed upon to meet) to prove
that the plaintiff’s further detention too was justified.
The malicious
prosecution claim:
[135]
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.
[38]
[136]
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.
[39]
[137]
Where
reasonable and probable grounds for an arrest or prosecution exists
the conduct of the defendant instigating it is not wrongful.
[40]
[138]
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
.
[41]
[139]
This
element may be proven by establishing that despite an appreciation
that his actions were wrongful a defendant acted recklessly
although
not negligently.
[42]
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”.
[43]
[140]
There is nothing of the kind in this
instance as I have demonstrated above concerning the assumed separate
delict of malicious detention.
My comments apply with equal force to
the present claim under discussion.
[141]
The contents of the docket and the court
record 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 docket.
[142]
The plaintiff has failed in my view to
establish that the defendants’ members acted with malice (
animo
iniuriandi
) in leaving it up to the
court to determine his fate in the trial which as it turned out
vindicated his defence that the sexual
intercourse had been
consensual after all and excused him for not knowing that the child
was only 14 years of age at the time.
[143]
Perhaps a different approach would have
ensued if the child had been held personally responsible for the
claim on the basis that
she had knowingly laid a false charge against
him and had galvanized the machinery of the Sexual offences Act,
vitally necessary
to protect underage victims
inter
alia
of sexual offences, for her own
purposes.
Conclusion:
[144]
It is regrettable that the plaintiff’s
life was upended by the incident, but this is certainly not one of
those instances
in which civil liability in delict attaches to the
defendants arising upon their pursuit of criminal justice.
[145]
In the premises the claims (howsoever they
were meant to be construed) must all fail.
[146]
On the issue of costs, however, it is clear
that the plaintiff felt righteously indignant that he had been
arrested after making
it plain to all concerned that the sexual
intercourse with the child had been entirely consensual. He was also
misled by the intimation
given in the senior public prosecutor’s
certificate misleadingly stated that the State’s case was weak.
This remark,
coupled with him having been vindicated upon trial,
would have given any person in his position a reason to feel abused
as he said
he did, and to embark on a legality review to question
whether his arrest and detention had been justified. I appreciate
that his
experience was a bitter pill to swallow and is one that has
left him feeling particularly bereft even if he acted irresponsibly

in the whole debacle for his own part.
[147]
In
the circumstances and on the basis of the principles established by
the court in
Biowatch
Trust v Registrar Genetic Resources and Others
[44]
I
consider that it would not be appropriate to order him to pay the
defendants’ costs.
[148]
I make the following order:
1.
The plaintiff’s claims are dismissed.
B HARTLE
JUDGE OF THE HIGH
COURT
DATE OF
HEARING

:         7, 8 & 9
November 2023
HEADS OF
ARGUMENT
:
16 & 23
November 2023
DATE OF
JUDGMENT
:         6
May 2024
Appearances:
For the plaintiff: Mr.
DA Maduma instructed by Ntamo & Tshika Attorneys, East London
(Ref. Ms. Ntamo)
For the defendants:
Ms. CTS Cossie instructed by The State Attorney, East London (Ref.
Mr. L Isaacs).
[1]
This
appears to go to the element of legal causation arising in respect
of the claim for unlawful arrest and detention directed
against the
first defendant. In
De
Klerk v Minister of Police
2021
(4) SA 585
(CC) the Constitutional Court clarified that the police,
when wrongfully detaining a person, may be held liable for the
post-hearing
detention of that person. Such liability will lie where
there is proof on a balance of probabilities that, (a) the culpable
and
unlawful conduct of the police was (b) the factual and legal
cause of the post-hearing detention. This must be read with the four

requirements for the delict that that must be proven, the last being
that the conduct of the defendant must have caused, both
legally and
factually, the harm for which compensation is sought. (See paras
[13] and [14] of the judgment). The application
for leave to appeal
before the court in
De
Klerk
was about whether the harm associated with the applicant’s
detention on the order of the magistrate after his first court

appearance until his release could be attributed to the unlawful
arrest by the police [16]. In that instance the harm contended
for
was found to be not too remote from the unlawful arrest. Thus it was
considered that the investigating officer knew that
the appellant
would appear in a “
reception
court
”
where the matter would be remanded without the consideration of
bail. Also relevant to the manner in which the plaintiff
has framed
his pleadings is the confirmation by the Constitutional Court in
Mahlangu
& Another v Minister of Police
2021
(7) BCLR 698
(CC) that it is immaterial whether the unlawful conduct
of the police contended for is exerted directly or through the
prosecutor
as long as that harm is not too remote from the claimed
unlawful arrest. (See para [33]). It was not hard to envisage in
that
matter though 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.
[2]
This
may go to the issue of foreseeability relative to the normative
boundary using legal causation (See the first judgement in
De
Klerk
),
but the allegations also purport to suggest a malicious deprivation
of liberty for which the purportedly culpable omissions
and acts of
both
defendants’ members are under the scope.
[3]
It
is evident from the docket that the kidnapping charge was not on the
cards as far as the police were concerned, neither any
other
offences under the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, No. 32 of 2007 (“
SORMA”).
Nothing turns on this because the offences of rape and kidnapping,
as well as a contravention of section 15 (1) of the SORMA
each in
their own right resort under the Schedule 1 list. The kidnapping
charge appears to have been added by the prosecutor
enrolling the
matter in the regional court for the first time.
[4]
The
statement does not reflect a date but it was evidently made on 13
March 2018 contemporaneous with the completion of the First

Information of Crime form SAPS 3M (b). This is confirmed by an entry
made in the police docket on the 13
th
recording what was done on opening the docket including the taking
of the complainant’s founding statement.
[5]
The
first active involvement by Constable Manga in the matter appears to
have been the receipt on the afternoon of the 13
th
of the sexual assault kit from a colleague who had ostensibly
accompanied the child to the medical examination.
[6]
See
footnote 3 above. The complaint comprised the elements of the
offence of kidnapping as well but this charge appears to have
come
to the fore only later.
[7]
It
is not in contention that Constable Manga received the docket on 13
March 2018.
[8]
I
believe that there was a bit of a misconception that the plaintiff
only bore the duty to prove the claim of malicious prosecution.
His
pleadings were oddly framed and flirted with extraneous matter. If
he had not meant to pursue claims of malicious
detention
against both defendants (which claims would also have attracted a
burden to him), he had also in any event to establish the other

elements of his claim.
[9]
See
De
Klerk Supra
at [14]. See also
See
Jacobs v Minister of Safety and Security
CA 327/2012 [2013] ZAECGHC 95 (23 September 2013) at para [41] which
requires a plaintiff to plead and prove any extraneous circumstances

on which he/she relies to establish his claim. Something more than
just the traditional claims for unlawful arrest and detention
on the
one hand, and malicious prosecution on the other, were in the offing
here.
[10]
The parties agreed at the onset of the trial 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 except for the objection
to the
receipt into evidence of the late Constable Manga’s arrest
statement standing in the place of the oral testimony
that he could
unfortunately no longer give on the nuances of the arrest.
[11]
This
is the same friend who had been in the company of the plaintiff at a
tavern the night before when they met up with the child.
[12]
The
plaintiff’s concern about the father identifying him rather
than the child seemed to go deeper than just the difference
between
what he said and what the late arresting officer had said in his
statement about this aspect. He seemed to want to suggest
that it
was not the father’s place to have involved himself in an
issue between him and the child (where he probably considered
there
was none because in his view the sexual intercourse had been
consensual), but he was missing the obvious fact that the
father as
legal guardian of a minor was exactly who the police should have
regarded as the “
complainant
”
and who it was appropriate should have been present and at the
forefront of the “pointing out”. Identification
per
se
was also never the issue so it didn’t really matter whether
the father, or the child in the presence of the father, had

confirmed to the arresting officer, who up until that point had not
yet met the plaintiff, that he was indeed the correct suspect.
It
appears logical that someone needed to confirm that Constable Manga
was not arresting the wrong person. Both daughter (and
father by
now) knew that the plaintiff was the suspect, but evidently not
Constable Manga himself.
[13]
I
t
is necessary to repeat her instruction to the investigating officer
to appreciate her explanation given in this regard. She
asked him to
obtain a photo album; a statement from the plaintiff’s friend
to support his version; the complainant (child)
was to be referred
for an assessment on her ability to testify and to describe the
impact of the rape; he was to file a forensic
social worker's
report; the child was to be referred for counselling; a buccal
sample was to be taken from the plaintiff; and
he was asked to
arrange a date for consultation.
[14]
See
footnote 13.
[15]
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].
[16]
A
contravention of section 15 (1) of the Criminal Law (Sexual Offences
and Related matters) Amendment Act also co-incidentally
resorts
under Schedule 1.
[17]
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.
[18]
R v Van
Heerden
1958 (3) SA 150
(T) at 152;
S
v Reabow
2007 (2) SACR 292
(E) at 297 c – e.
[19]
1988 (2) SA 654 (SE).
[20]
At
658 G.
[21]
At
658 H.
[22]
See
B3 in the docket
[23]
The
plaintiff was somewhat ambivalent in this respect. It was important
to his case that he had made an exculpatory statement
so it was
unclear why he wanted to distance himself from that statement as
much as possible during cross examination.
[24]
Marked
A14 in the police docket.
[25]
Minister
of Safety and Security v Sekhoto and Another
2011 (5) 367 (SCA) at para [25].
[26]
Minister
of Law and Order v Dempsey
1988
(3) SA 19
(A) at 38 C.
[27]
If
there was such a complaint at the outset the first defendant would
no doubt have addressed this in the plea.
[28]
Sekhoto
Supra
at para [39].
[29]
Supra
.
[30]
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.
[31]
The
offence of kidnapping was ostensibly not in the forefront of
Constable Manga’s mind. He was also inclined to accept
that
the complaint was one of rape as opposed to any other sexual offence
against a child.
[32]
These
are the provisions that give effect to the protection against
arbitrary and unjust deprivation of freedom under section
12 (1) (a)
of the Constitution when a suspect has to be brought to court for an
appearance.
[33]
Subsections
35 (1) (d) - (f) of the Constitution impose constitutional
obligations on three different institutions of government.
The
police carry the responsibility to ensure a criminal suspect is
brought before court as required by section 35 (1) (d). This
is an
administrative function to be exercised within the broader executive
authority of government. The decision to charge a
suspect under
section 35 (1) (e) is one that falls under the authority and
competence of the NPA, an independent institution
under the
Constitution. The decision to release or detain a suspect falls
within the independent judicial authority or competence
of the
Judiciary. (See the third judgement in
De
Kerk
at [132] including the authorities cited there.
[34]
Jacobs
Supra
at
para [41].
[35]
Obviously
neither sections 59 nor 59A are of application in this instance.
[36]
Minister
of Safety and Security v
Sekhoto
&
Another
2011 (1) SACR (1) (SCA) at para [42].
[37]
See
in this regard the approach adopted in
Minister
of Police and Another v Erasmus
(366/2021)
[2022] ZASCA 57
(22 April 2022) at para [11] and [12].
Both wrongful and malicious deprivation of liberty are
iniuria
actionable under the
actio
iniuriarum
.
Each constitute actionable wrongs on their own that attract
stringent requirements to be proved for their success against the

actor. But wrongful arrest can also attract liability for the
post-hearing detention of that person where the culpable and

unlawful conduct of the police is the factual and legal cause of his
post hearing detention. The more egregious that conduct the
easier
it is to establish the necessary element of legal causation.
[38]
Minister
of Justice and Constitutional Development v Moleko
2008
(3) SA 47 (SCA).
[39]
Moleko
supra
at
53 C.
[40]
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
at 382a.
[41]
Rudolph
v Minister of Safety and Security
2008 (5) SA 94
SCA at par [18].
[42]
Rudolph
supra
at
par [28]
[43]
Para
[64].
[44]
2009
(6) SA 232
(CC).