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[2024] ZAECMKHC 79
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Pieterse v Minister of Police and Another (CA192/2023) [2024] ZAECMKHC 79 (16 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA 192/2023
NOT
REPORTABLE
In
the matter between:
CARRISTON
GRANT PIETERSE
Appellant
and
MINISTER
OF
POLICE
First Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Respondent
JUDGMENT
BODLANI
AJ
[1]
This is an appeal against the judgment of the Regional Court,
Gqeberha (‘the trial court”). The trial court dismissed
with costs, the appellant’s claim for damages arising from his
arrest on 13 August 2018 and his subsequent detention from
13 to 29
August 2018.
[2]
In the main, the appeal is predicated on the contention that the
trial court erred in finding that the first respondent discharged
his
onus and proved that the appellant’s arrest was justified in
terms of section 40(1)(b) of the Criminal Procedure Act,
1977 (Act
No. 51 of 1977) as amended (“the Act”). It is also
contended that the trial court erred in not finding that
the
respondents failed to justify the appellant’s detention.
[3]
To appreciate the bases for the appellant’s cause of action
against the first respondent, it is apposite to rehash some
of the
pertinent features of his particulars of claim.
The
appellant’s case was pleaded as follows:
“
18.
Plaintiff’s arrest was wrongful and unlawful, in that,
inter
alia
:
18.1
there was no reasonable suspicion that he committed an Schedule 1
offence, nor did he commit an offence in the presence of
a peace
officer;
18.2
the arresting officer failed to exercise any discretion at all,
alternatively, failed to exercise his discretion in a rational
manner;
18.3
the arresting office did not explain his constitutional rights to
him;
18.4
the arresting officer failed to comply with Sections 4 and 8 of the
police Standing Order G341, in that no entry was made in
his pocket
to confirm that the Plaintiff’s rights were explained to him
and the Plaintiff also did not sign next to the entry
in the
arresting officer’s pocket book.
19.
Plaintiff’s initial detention and incarceration in police
custody from the 13
th
of August 2018 to the 14
th
of August 2018 was wrongful, unlawful and without reasonable and
probable cause, in that,
inter alia
:
19.1
the arresting officer, as well as other police officers at the Mount
Road police station, failed to apply their minds, in respect
his
detention and the circumstances relating thereto;
19.2
there were no reasonable and objective grounds justifying his
detention;
19.3
the arresting office did not explain his constitutional rights to
him;
19.3
he was no brought before a court of law, as soon as reasonably
possible, as he could and should have been brought before a
court on
the 13
th
of August 2018.”
[4]
The claim against the first respondent was met with a denial of
unlawfulness and a justification for the appellant’s arrest,
being that the arresting officer had information implicating the
appellant in the commission of a criminal offence referred to
in
schedule 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
For this, the first respondent attracted an onus to justify
the
arrest.
[1]
To discharge it, the first respondent called the arresting officer,
Captain Wilfred Owen Rowann (Captain Rowann). After him, the
investigating officer, Sergeant Rhagosingh testified. Their
testimonies can be summarised as follows.
[5]
At the time of the appellant’s arrest Captain Rowann was in
charge of a property crimes task team. He worked on all linkage
cases
[2]
on housebreaking, theft of motor vehicles, house and business
robberies. He was attached to the Mount Road cluster which has 7
(seven) police stations. Each police station seconded a member to
work with him.
[6]
The methodology used by Captain Rowann and his team was simple. They
received dockets from the various police stations that
make up the
Mount Road cluster after a crime falling within the ambit of their
mandate had been reported. They then verified statements
made by
complainants in the various police stations that fell within their
mandate.
[7]
They also communicated with the Local Criminal Record Centre (LCRC)
that examined fingerprint samples found on crime scenes
or, on items
concerned with alleged criminal activity. If fingerprint samples
found on a crime scene or, on an item concerned with
alleged criminal
activity matched those of an identifiable suspect, they would look
for the suspect concerned.
[8]
In this case, the LCRC reported that the appellant’s
fingerprints matched a fingerprint sample that was found on a
refrigerator
in premises where housebreaking had allegedly occurred
(“the scene of crime”). On 13 August 2018, at about
00h30, Captain
Rowann arrested the appellant. At the time of the
arrest, the appellant was at his home with his mother. Thereafter, he
was detained
at Mount Road Police Station at about 04h40.
[9]
When explaining the reason for the arrest, Captain Rowann was
unequivocal. He arrived at the appellant’s home, knocked
on the
door, asked for the appellant, and the appellant was identified. He
then explained the reason for his visit and informed
the appellant
that he would arrest him on failure to explain the presence of his
fingerprints on the scene. The appellant could
not, according to
Captain Rowann, provide an explanation. Thereafter, Captain Rowann
informed the appellant of his rights and then
arrested him.
[10]
When asked to tell the trial court why he arrested the him, Captain
Rowann said that he arrested him because he was linked
by
fingerprints to the crime of housebreaking and was unable to provide
an explanation for the presence of his fingerprints on
the scene. He
went on to state that when a suspect is linked to crimes like
burglaries, murder and business robberies, the suspect
must be
arrested and brought before a court.
[11]
Captain Rowann presented no further evidence regarding the reasons
for the appellant’s detention on 13 August 2018. Though
called
to testify on behalf of the first respondent, Sergeant Rhagosingh was
not involved in the arrest and detention of the appellant.
Thus, his
evidence did not take the matter any further.
[12]
The second respondent led the evidence of Ms. Ester Aletta Meiring
(Ms. Meiring). At the time of the appellant’s arrest,
Ms.
Meiring was a docket screener for regional court matters. When she
received the docket, she considered it and concluded that
there was a
prima facie
case for the appellant to answer. Based on this,
she enrolled the matter.
[13]
During the appellant’s first appearance in court on 14 August
2018, a different prosecutor, Ms. Njokweni, handled the
matter. She
opposed bail, ostensibly because she did not have the appellant’s
criminal record profile and SAP 69. For these
reasons, she requested
that the matter be remanded to 22 August 2018.
[14]
On 22 August 2018, a different prosecutor, Mr. Mayela, handled the
matter. Like Ms. Njokweni, he too, requested a remand to
obtain the
appellant’s criminal record profile and SAP 69, and for formal
bail application. The court remanded the matter
to 29 August 2018. On
29 August 2018, the state was no longer opposed to bail.
Consequently, the appellant was granted bail in
the amount of R300.00
(three hundred rand) on an unopposed basis.
[15]
Notwithstanding that both Ms. Njokweni and Mr. Mayela had on 14 and
22 August 2018, respectively, informed the court that the
appellant’s
criminal record profile remained outstanding, Ms. Meiring conceded in
cross examination that the appellant’s
criminal record profile
was always in the docket when the remands were sought. She conceded
further that her colleagues had misled
the court. This
misrepresentation of facts was the sole reason for delaying the
decision in respect of bail.
[16]
The trial court was impressed with the respondents’ witnesses.
It found the evidence of Captain Rowann without “any
material
contradictions or any inherent improbabilities”. It described
the evidence of Ms. Meiring as “reliable and
truthful”.
In contrast, the trial court was not impressed with the evidence of
the plaintiff. It found it “confusing,
contradictory and not
reliable”. It also found it to be false insofar as it differed
with the evidence of the defendant.
[17]
What the trial court did not do, which it should have done, is to
determine whether despite the adverse findings in respect
of the
evidence of the appellant, the first respondent had discharged the
onus to establish the lawfulness of the appellant’s
arrest and
detention on 13 August 2018. The trial court also did not consider or
determine whether the second respondent had justified
the conduct of
the prosecutors who had occasion to attend to the appellant’s
case since his first appearance in Court until
he was granted bail.
[18]
It was common cause that plaintiff’s criminal record profile
was necessary for the prosecutors to decide whether to oppose
the
appellant’s admission to bail. However, the prosecutors always
had the appellant’s criminal record profile when
the remands on
14 and 22 August 2018 were sought and obtained. Thus, they did not
only obtain the appellant’s criminal record
profile on 29
August 2018 when they capitulated in the appellant’s
application for admission to bail.
[19]
It is against the evidence and the findings of the trial court,
rehashed above, that this appeal must be decided. This must
be done
with the observance of the long standing legal principle, which has
survived our constitutional dispensation, that
the
trial court’s factual findings are presumed to be correct in
the absence of a demonstrable error. To overcome the presumption,
an
appellant must convince the appellate court on adequate grounds that
the trial court’s factual findings were plainly wrong.
Bearing
in mind the advantages enjoyed by the trial court of seeing, hearing
and appraising the witnesses, it is only in exceptional
circumstances
that an appellate court will interfere with the trial court’s
evaluation of oral evidence.
[3]
[20]
In its judgment, the trial court
comprehensively
summarised the evidence. However, as I will demonstrate hereunder, in
its failure to evaluate whether the parties
who bore the onus had
discharged it, it erred. This error materially influenced its
conclusion. Thus, sitting as a court of appeal,
we are entitled to
interfere with its
evaluation
of oral evidence.
[21]
The starting point is the extent of the
burden
that rests on the arresting officer. It does not only relate to the
initial arrest but also the period of detention up until
the
arrestee’s first appearance in court or his or her release.
Where it appears clear that
prima
facie
proof of the detainee’s guilt is unlikely to be discovered, the
police have a duty to release him or her from custody.
[4]
[22]
Unless the first respondent had discharged the onus to dispel the
suggestion that the arrest and initial detention was unlawful,
the
appellant was entitled to succeed. Insofar as it is relevant to this
appeal, consistent with the finding in
Duncan,
[5]
the jurisdictional facts for an arrest predicated upon s 40(1)(b) of
the Act are that (i) the arrestor must be a peace officer;
(ii) the
arrestor must entertain a suspicion; (iii) the suspicion must be that
the suspect (the arrestee) committed an offence
referred to in
Schedule 1; and (iv) the suspicion must rest on reasonable grounds.
The jurisdictional facts for the other paragraphs
of s 40(1) of the
Act differ in some respects but these are not relevant for present
purposes.
[23]
Commenting on these requirements, Jones J in
Mabona
v Minister of Law and Order and Others
had
the following to say:
[6]
“
It
seems to me that in evaluating this 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 a
need to swear out a warrant, ie something which otherwise
would be an
invasion of private right and person liberty. The reasonable man
would therefore analyse and asses 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 its disposal must be of sufficient 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.”
[24]
At the time of the arrest, the appellant’s fingerprints had
been found in the scene of crime. Not only that, Captain
Rowann had
investigated whether the appellant was known to the complainant, in
the criminal case. She said that she had no knowledge
of the
appellant. In the face hereof, the appellant offered no explanation
for the presence of his fingerprints when requested
to do so.
[25]
It must be remembered that section 40(1)(b) of the Act requires
suspicion, not certainty. However, the suspicion must be based
upon
solid grounds, otherwise, it will be arbitrary, and not a reasonable
suspicion.
In these
circumstances,
the
information at
Captain Rowann
‘s
disposal was of such quality and cogency as to allow himself to
entertain a suspicion which justified the arrest.
Thus,
I am of the view that the respondent discharged the onus to prove
that Captain Rowann had reasonable grounds for his suspicion
that the
appellant had committed an offence referred to in schedule 1 of the
Act and that his decision to arrest him was rational
in the
circumstances. I accordingly find that the appellant’s arrest
on 13 August 2018 was lawful.
[26]
Consistent with the appellant’s particulars of claim, it was
also argued that the appellant’s initial detention
was unlawful
by reason of the fact that Captain Rowann failed properly to inform
the appellant of his constitutional rights; to
comply with sections 4
and 8 of the Police Standing Order G341 in that no entry was made in
Captain Rowann’s pocket book
to confirm that the appellant’s
rights were explained to the appellant; and the fact that the
appellant did not sign next
to the entry in the arresting officer’s
pocket book rendered the arrest unlawful.
[27]
Insofar as the issue concerning the explanation of the appellant’s
constitutional rights at the time of the arrest, an
issue for which
Captain Rowann was criticised, the following exchange appears from
the record:
COURT:
But that is what I thought, I asked him now to explain to me what did
you say to the plaintiff.
MR
MCKENZIE:
The rights, no the rights
when he now decided to arrest him.
COURT:
Alright, you explain to him no, you are there, he is linked with
fingerprints to the crime scene, if he cannot give you any
explanation
you are going to arrest him?
MR
ROWAN:
Then I explained to him, Your
Honour, I am a police officer, anything you say will be written down.
You have the right to attorney.
You have a right for a state
attorney. If you cannot afford an attorney and you will have the
opportunity to explain your version
in court if you cannot explain it
at this stage to me, Your Honour.
MR
MCKENZIE:
Is that what you told him?
MR
ROWAN:
Yes.
[28]
It is correct that the rights of arrested and accused persons to
remain silent at pre-trial stage are significant to ensuring
a fair
trial. Section 35 of the Constitution Act, 1996 makes provision for
these rights.
[7]
The right to silence gives content and meaning to the right against
self-incrimination and the right to be presumed innocent. It
is a
salutary rule of our common law, which accords with our
constitutional value based system, that the state bears the duty to
prove the guilt of the accused beyond reasonable doubt. However, the
election to exercise the right to silence in the face of compelling
evidence against a person accused of committing a crime has the
inevitable consequence of fortifying the reasonableness of the
suspicion held by an arresting officer.
[29]
In essence, the right to remain silent serves to prohibit the state
from engaging in any manner or form of coercing the accused
person to
assist the state in meeting its case.
[8]
Given this purpose, it seems to me that the remedy for a violation of
the appellant’s rights in terms section 35(1) (a) –
(c)
of the Constitution, an issue I do not decide, would lie in
challenging the admissibility of the evidence and/or statements
made
by him to the police in circumstances where he was not advised of his
constitutional rights.
[9]
[30]
The failure to inform the appellant properly of his constitutional
rights and to comply with sections 4 and 8 of the Police
Standing
Order G341 did not take away from the reasonableness of Captain
Rowann’s suspicion that the appellant had committed
an offence
referred to in schedule 1 of the Act. The most potent question in the
enquiry remains whether the arrest is one that
is justifiable under
section 40(1)(b). This question is answered with reference to the
jurisdictional factors that underpin the
empowering provision.
[31]
Looked at differently, had Captain Rowann informed the appellant of
his constitutional rights, and had he complied with sections
4 and 8
of the Police Standing Order G341, but was without a reasonable
suspicion that the appellant had committed an offence referred
to in
schedule 1 of the Act, would such have made the arrest one that is
good in law? Not at all. This is because section 35 of
the
Constitution and Police Standing Order G341 do not empower peace
officers to effect arrests. Thus, I would dismiss the appeal
against
a finding that upheld the lawfulness of the arrest.
[32]
What of the lawfulness of the appellant’s detention before his
appearance in court on 14 August 2018? Insofar as may
be relevant for
present purposes, s 50 of the Act provides as follows:
"
Procedure
after arrest
50(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.
(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
.
[33]
The provisions of s 50(1)(a) and (b) of the Act contemplate that
following upon an arrest, the arrested person shall be detained
in a
police station. This detention is linked to the arrest itself. Thus,
I am not able to find fault with the appellant’s
detention
immediately following upon his arrest. What remains to consider is
whether the first respondent discharged the onus in
regard to the
complaint that the appellant was not brought before a court of law,
as soon as reasonably possible, as he could and
should have been
brought before a court on 13 August 2018.
[34]
The issue of the lawfulness of the appellant’s continued
detention and failure timeously, on 13 August 2018, to bring
him
before a court of law was properly and sufficiently raised on the
pleadings.
[10]
In the circumstances, the onus to prove that the continued detention
was not unlawful arose, in the sense that evidence was required
to
justify the conclusion that it was not unlawful.
[11]
[35]
The first defendant led no evidence to justify the failure to bring
the appellant before a court on 13 August 2018 and no reason
presents
itself to conclude that it was not possible. Simply on this basis, he
did not discharge the onus. The appellant should
have been taken to
court as soon as reasonably possible. That would have been after
processing him and having made the necessary
logistical arrangements
with the prosecutor. I do not think that it could reasonably have
occurred before the start of proceedings
on 13 August 2018, and even
if it could it is improbable that the prosecutor would have brought
him before court at 09h00. Thus,
I find that he should have been
brought before court, at least, by 13h00 on 13 August 2018. This was
not done and, no justification
was given for it. This renders the
appellant’s detention unlawful from that moment onwards.
Accordingly, the first respondent
is liable to compensate the
appellant for his wrongful detention from 13h00 on 13 August 2018
until his appearance in court on
14 August 2018. Insofar as quantum
is concerned, applicable the principles that I discuss later in this
judgment, I am of the view
that damages against the first respondent
in the amount of R15 000 (fifteen thousand rand) would be fair and
reasonable.
[36]
Turning now to the claim against the second respondent. This claim
implicates, once again, the rights of arrested and accused
persons.
[12]
It was common cause during the trial that on 14 August 2018, the
appellant was unrepresented; did not get an opportunity to apply
for
bail; and the prosecutor applied for postponement because they did
not have the appellant’s criminal record profile.
It was also
common cause that on 22 August 2018, the absence of the appellant’s
criminal record profile formed the basis
of the prosecutor’s
application for postponement.
[37]
It was not in dispute before the trial court that on 14 and 22 August
2018 the prosecutors who attended to the appellant’s
case were
in possession of the appellant’s criminal record profile. As I
have said, this misrepresentation of facts was the
only reason for
refusing the appellant an opportunity of seeking bail on these
occasions and, as a result he remained in custody.
It cannot be
contended that the appellant’s detention from 14 to 29 August
2018 did not violate his right to dignity, freedom
and liberty. The
question that needs to be answered is whether there was a
justification for these inroads to be made into the
appellant’s
person. If not, the next question is whether the second respondent
should be held liable. I answer both questions
in the affirmative.
[38]
In this regard, the applicable principles were set out in
Carmichele
v Minister of Safety and Security
, where the Constitutional Court
held that:
“
[73]
In considering the legal duty owed by a prosecutor either to the
public generally or to a particular member thereof, a court
should
take into account the pressures under which prosecutors work,
especially in the magistrates’ courts. Care should be
taken not
to use hindsight as a basis for unfair criticism. To err in this
regard might well have a chilling effect on the exercise
by
prosecutors of their judgment in favour of the liberty of the
individual. There are far too many persons awaiting trial in our
prisons either because bail has been refused or because bail has been
set in an amount which cannot be paid. We can do no better
in this
regard than refer to the following passage which appears in the
United Nations Guidelines on the Role of Prosecutors
:
Guidelines
on the Role of Prosecutors
“
In
the performance of their duties, prosecutors shall:
(a)
…
(b)
Protect the public interest, act with objectivity, take proper
account of the position of the suspect and the victim and pay
attention to all relevant circumstances, irrespective of whether they
are to the advantage or disadvantage of the suspect; . .
.”
[74]
That said, each case must ultimately depend on its own facts. There
seems to be no reason in principle why a prosecutor who
has reliable
information, for example, that an accused person is violent, has a
grudge against the complainant and has threatened
to do violence to
her if released on bail should not be held liable for the
consequences of a negligent failure to bring such information
to the
attention of the Court. If such negligence results in the release of
the accused on bail who then proceeds to implement
the threat made, a
strong case could be made out for holding the prosecutor liable for
the damages suffered by the complainant.”
[39]
As is indicated above, the evidence of the prosecutors who handled
the appellant’s case on 14 and 22 August 2018 was
not led
before the trial court. The result is that there was no explanation
for why they misled the magistrate in respect of the
appellant’s
criminal record profile when same was always with them. Absent that
explanation being placed before the trial
court, I must accept that
there was none available.
This
is because the second respondent bore the
burden
to justify the deprivation of liberty.
[13]
No justification was rendered.
[40]
The absence of evidence to
justify the applications for postponement on 14 and 22 August 2018,
means that there was no evidence
upon which the onus could be
discharged. A
bsent
a justification, t
he inevitable
conclusion is that the appellant was unjustifiably detained in a
manner that violated his right not to be deprived
of freedom
arbitrarily and without just cause. It follows, therefore, that the
appellant’s detention from 14 August 2918
until 29 August 20018
was unlawful. Thus, the trial court erred in dismissing the
appellant’s claim in this regard. This
brings me to the
question of quantum on this claim.
[41]
The assessment of damages is ordinarily the preserve of the trial
court. The default position when the issue arises before
an appeal
court would be to remit the matter to the trial court. That is not
always necessary or appropriate. In
EF
v Minister of Safety & Security
[14]
the
Supreme Court of Appeal said:
‘
The
general rule is that the determination of damages is a function
peculiarly within the province of the trial court. It is competent,
however, for this court itself to fix the damages to which the
appellant is entitled. See Neethling v Du Preez and Others; Neethling
v Weekly Mail and Others
[1994] ZASCA 133
;
1995 (1) SA 292
(A) at 301A-C. This court
has all the information necessary to consider this aspect. It is
therefore in as good a position to do
so as the trial court. For that
reason, no purpose would be served by remitting the matter for that
purpose.’
[15]
[42]
The evidence on record in this matter is sufficient to allow this
Court to make an award for general damages. The purpose of
the award
in a matter such as this is to compensate the claimant for loss of
personal liberty and freedom and the attendant mental
anguish and
distress caused by the detention. In
Minister
of Safety and Security v Tyulu
,
[16]
the Supreme Court of Appeal emphasized that ‘the primary
purpose is not to enrich the aggrieved party, but to offer him some
needed
solatium
for
injured feelings.
[17]
[43]
Thus, in considering the question of
quantum
, I am mindful of
the following dictum in
Zealand
(supra), at para. 24:
“
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom.”
[44]
The determination of an appropriate sum for damages is a matter of
discretion. Counsel referred us to similar cases to consider
in the
determination of damages. Previous awards made in comparable cases,
can afford guidance. The comparative exercise is, however,
not a
meticulous examination of awards, and should not impinge upon the
court's general discretion.
[18]
Suffice it to say that a survey of the cases referred to by counsel,
and other reported cases, reveal no discernible pattern other
than
that our courts are not extravagant in compensating the loss.
[46]
There is no evidence that the appellant suffered any degree of
humiliation beyond that inherent in being detained. I accept
that,
apart from the humiliation suffered as result of his detention, the
appellant was also deprived of his liberty for a period
of fifteen
days in police cells, and had been separated from family and friends
for that period. And, having had regard to previous
awards made in
comparable cases, I am of the view that damages against the second
respondent in the amount of R250 000 (two hundred
and fifty thousand)
would be fair and reasonable.
[45]
In the result, the following order is made:
1.
The appeal against the judgment of the Magistrate’s Court,
Gqeberha (“the Magistrate’s Court”) dismissing
the
appellant’s claim for unlawful arrest against the first
respondent is dismissed.
2.
Save as aforesaid, the appeal against the judgment of the
Magistrate’s Court, is upheld and the order of the Magistrate’s
Court is set aside and replaced with the following:
“
1.
The plaintiff’s initial detention from 13h00 on 13 August 2018
until his appearance in Court on 14 August 2018 is declared
unlawful;
2.
The first defendant is directed to pay to the plaintiff the amount of
R15 000.00 (fifteen thousand rand) as damages in respect
of the
initial detention referred to in paragraph 1;
3.
The plaintiff’s detention from 14 to 29 August 2018, is
declared unlawful;
4.
The second defendant is directed to pay to the plaintiff the amount
of
R250 000.00 (two hundred
fifty thousand
rand)
as damages in respect of the detention referred to in paragraph 3;
and
5.
The defendants are directed to pay the plaintiff’s costs of
action, jointly and severally, the one paying the other to
be
absolved”
3.
The respondents, the one paying and the other to be absolved, are
ordered to pay the costs of the appeal.
A
M BODLANI
ACTING
JUDGE OF THE HIGH COURT,
EASTERN
CAPE DIVISION.
I
agree
J
EKSTEEN
JUDGE
OF THE HIGH COURT,
EASTERN
CAPE DIVISION.
APPEARANCES:
For
the Appellant
:
MR. MCKENZIE
Intrusted
by
:
MESSRS PETER MCKENZIE ATTORNEYS
Attorneys
for the Appellant
No.
33 Beetlestone Road, Gelvandale
GQEBERHA
Tel:
073 590 5870 / 064 636 4666
Email:
peter@mckenzieinc.co.za
Ref:
P. MCKENZIE/tashP77
For
the Respondent
:
MS. T. ZIETSMAN
Intrusted
by
:
MESSRS STATE ATTORNEY
Attorneys
for the Respondent
No.
29 Western Road
Tel:
(041) 585 7921
Email:
AMajezi@justice.gov.za
Ref:
795/2019/LM
Heard
:
31 May 2024
Delivered
:
16 July 2024
[1]
Zealand
v minister of Justice and Constitutional Development and Another
2008
(2) SA SACR 1 (CC).
[2]
Linkage cases are not defined anywhere in the record, nor was
Captain Rowann called upon to define the concept.
[3]
R
v Dhlumayo & Another
1948
(2) SA 677
(A) at 705-706
;
Sanlam Bpk v Biddulph
2004
(5) SA 586
(SCA) para 5
;
Roux v Hattingh
2012
(6) 428 (SCA) para 12
.
[4]
Minister
of Police v Du Plessis
2014
(1) SACR 217
(SCA) at para 17.
[5]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H.
[6]
Mabona
v Minister of Law and Order and Others
1998
(2) SA 654
(SECLD), at 658 E-H
[7]
Arrested,
detained and accused persons
35.
(1) Everyone who is arrested for allegedly committing an offence has
the right—
(a)
to remain
silent;
(b)
to be informed promptly—
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining silent;
(c)
not to be compelled to make any confession or admission that could
be used in evidence against that person;
[8]
Thebus
v S
[2003] ZACC 12
;
2003
(6) SA 505
(CC), at para 55.
[9]
S
v Orie and Another
2005
(1) SACR 63 (C).
[10]
See Zealand fn 1 above
para
24,
where
the Constitutional Court held that:
“
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom
arbitrarily or without just cause, as well as the founding value of
freedom. Accordingly, it was sufficient in this case for
the
applicant simply to plead that he was unlawfully detained. This he
did. The respondents then bore the burden to justify the
deprivation
of liberty, whatever form it may have taken.’”
[11]
Minister
of Safety and Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) (Slabbert) para 21-22.
[12]
See
s 50(1)(b), and (6) of the Act.
[13]
Zealand
fn
1 above, at para 24. Also see
Minister
van Wet en Orde v Matshoba
1990
(1) SA 280
at pp 284 – 286, 427 – 427.
[13]
E
F v Minister of Safety & Security
[2018] ZASCA 96
;
2018 (2)
SACR 123
(SCA) (
EF
).
[15]
Ibid, para 32.
[16]
Minister
of Safety and Security v Tyulu
[2009] ZASCA 55; 2009 (5) SA 85 (SCA); 2009 (2) SACR 282 (SCA).
[17]
Ibid,
para 26.
[18]
Protea
Assurance v Lamb
1971
(1) SA 530
(A) at 535B-536A.