IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : MAKHANDA

Case No : CA05/2022

In the matter between:

THE MINISTER OF POLICE Appellant

and

OLWETHU KULATI Respo ndent

JUDGMENT

BROOKS ADJP

[1] This is an appeal against the judgment and order of the court a quo
(MFENYANA AJ) delivered on 18 February 2020. The order of the court a quo was
as follows:

(a) The arrest of the plaintiff and his subsequent detention from 14 April to
08h00 on 15 April 2 017 was lawful.
(b) The continued detention of the plaintiff from 08h00 on 15 April to 13h00
on 18 April 2017 was unlawful.
(c) The defendant is liable to compensate the plaintiff for damages arising
from the plaintiff’s unlawful detention in the amount of R128 000.00.
(d) The defendant shall pay interest on the above amount at the prescribed

rate of 10,25 % calculated from date of judgment to date of payment.
(e) The defendant is ordered to pay the plaintiff’s costs of suit.

[2] Leave to appeal to this court was granted by the court a quo .

[3] A single ground of appeal is set out in the notice of appeal and reflects the issue
that was argued before this court. The relevant portion of the notice of appeal reads
as follows:

The learned judge erred in finding that the provisions of section 59A of the
Criminal Procedure Act 51 of 1977 (the CPA) places a duty on the South African
Police Services (the SAPS) to facilitate the release of the respondent on bail in
the absence of a request for bail from him.

[4] In the amended particulars of claim the re spondent alleged that the detention
he experienced subsequent to his arrest was u nlawful. In essence the allegation of
unlawfulness is based upon an allegation that the members of the South African Police
Services involved with the detention “could and sh ould” have brought him before a
prosecutor in terms of section 59A of the CPA to enable him to be released on bail
prior to his appearance in court but failed to do so. It was further pleaded that the
respondent was not made aware of the provisions of sec tion 59A of the CPA at any
time during his detention.

[5] In the amended plea, the allegations that refer to the detention of the
respondent as being unlawful are denied. The appellant admitted only that the
respondent was released on 18 May 2017 after b eing taken to court. It was pleaded
further that the respondent was lawfully detained “in terms of inter alia section s 39 and
50 of the CPA.”

[6] In the circumstances the respondent bore an evidential onus to place before
the court a quo evidence that he intended to rely upon in support of the allegations
made in his amended particulars of claim that had not been admitted by the appellant.

[7] The appellant bore the onus of proof to establish that the entire period of the
detention of th e respondent was not unlawful .1

[8] The respondent, as plaintiff, did not testify before the court a quo . Reliance
was place d upon the evidence of the respondent’s mother who testified in support of
his claim. She was found to be an unreliable and unhe lpful witness whose evidence
was incoherent and improbable . There is no cross -appeal challenge to this finding.
In any event, her evidence had no bearing upon the finding and order of the court a
quo and consequently has no bearing upon the issue in the appeal .

[9] It is common cause that the respondent was arrested by one Allers, a peace
officer and member of the South African Police Services. The respondent was seen
by Allers emerging from a “known drug house” and when he saw Allers the respondent
started running. The respondent was seen to throw a matchbox on the ground. Allers
picked it up and found a mandrax tablet inside it. These events gave rise to a suspicion
on the part of Allers that the respondent was in possession of dependence -producing
drugs and All ers arrested him. Reliance was placed by Allers, and the appellant as
defendant in due course, upon the provisions of section 40(1)(h) of the CPA for the
arrest by Allers, without a warrant, of the respondent as a person “who is reasonably
suspected of co mmitting or of having committed an offence under any law governing
the making, supply, possession or conveyance of intoxicating liquor or of dependence -
producing drugs or the possession or disposal of arms or ammunition… ”

[10] The court a quo found that t he suspicion formed by Allers was a reasonable
suspicion and that the circumstances fell within the ambit of the provisions of section
40(1)(h) of the CPA, quoted above. In the circumstances the court a quo found that
the arrest of the respondent without a warrant was lawful. This finding was accepted
by the respondent.

[11] With regard to the respondent’s claim that his subsequent detention was
unlawful, it was put to Allers by the respondent’s legal representative that he never
asked the respondent if he wanted to be released on bail. It was Allers’ evidence in

1 Minister of Safety and Security v Jan du Plessis 2010 (1) SACR 49 (ECG); Minister of Law and
Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589E -F; Syce and Another v Minister of
Police 2024 (2) SACR 1 (SCA) para [40].
response to this line of questioning that the respondent did not say anything when his
rights were read to him, including the right to be released on bail.

[12] The appellant also led the evidence of Captain Khwitshi, who saw the docket
prepared in respect of the respondent the next day. He stated that he did not request
the prosecutor to grant the respondent bail because the latter had not requested it.
Khwitsh i confirmed that he would have done so if the respondent had requested bail.
He testified further that the respondent had said that he wanted to “speak in court”.
Khwitshi maintained that his duty to request the prosecutor for bail only arises if the
accused person informs him that he requires bail.

[13] The evidence indicated that the investigation subsequent to the arrest of the
respondent was completed on 15 April 2017. The arrest had been made on 14 April
2017, which was Good Friday and the ensuing Easter public holiday meant that the
first available court date after the arrest was Tuesday 18 April 2017. The docket was
sent to court without information relating to bail. On 18 April 2017 the respondent was
released without an appearance in court.

[14] The court a quo found that there was a duty on members of the South African
Police Services to bring the matter of release of the respondent on bail to the attention
of the prosecutor having themselves determined the respondent’s eligibility for bail.
As the evidence indicated that this had not been done the court a quo held that the
detention of the respondent from 08h00 on 15 April 2017 until his release at 13h00 on
18 April 2017 was unlawful.

[15] The crisp issue is whether or not the court a quo was correct in finding that
there is a duty on members of the South African Police Services to facilitate the release
of a detained person on bail in terms of the provisions of section 59A of the CPA in the
absence of any request by the detained person to be so released.

[16] Section 59 of the CPA provides:

(1)(a) An accused who is in custody in respect of any offence, other than an
offence referred to in Part II or Part III of Schedule 2 may, before his or her first
appearance in a lower court, be released on bail in respect of such offence by
any police official or above the rank of non -commissioned officer, in
consultation with the police official charged with the investigation, if the accused
deposits at the police station the sum of money determined by such police
official.

[17] The offence for which the respondent was arrested falls within Part II of
Schedule 2 of the CPA. Therefore, the court a quo was correct in concluding that the
procedure set out in section 59(1)(a) of the CPA was not available to the respondent.

[18] In respect of offences not covered by the provisions of section 59 of the CPA,
the provisions of section 59A of the CPA find application. That section provides:

(1) An attorney -general, or a prosecutor authorised thereto in writing by the
attorney -general con cerned, may, in respect of the offences referred to in
Schedule 7 and in consultation with the police official charged with the
investigation, authorise the release of an accused on bail.

[19] Interpreting the provisions of section 59A of the CPA, the cou rt a quo held:

It is clear from this section as well that the provision does not envisage a request
by the accused person, but a determination by the prosecutor armed with such
information as may be relevant for them to arrive at a decision, in consultation
with the investigating officer. It involves the exercise of a discretion by the
prosecutor in consultation with the police officer. Were this not the case, it
would be reasonable for the prosecutor to simply wait for the a ccused person
and only then, make such a determination. This is not what is contemplated by
section 59A. That discretion was not exercised, ostensibly in the belief that the
accused person had to make a request and in the absence thereof, the
discretion did not arise. This cannot be… It was incumbent on Khwatsha [sic]
in consultation with Groenewald, to assess the circumstances of each case,
and make a determination whether the matter qualifies to be brought before the
prosecutor for bail. With due dilig ence, the police could have ensured that the
plaintiff was released upon finalisation of the investigation and prevent a further
infringement of his right to liberty.

[20] It is evident, from the judgment under scrutiny that the court a quo had been
referred to the judgment of Crouse AJ in M alisha v Minister of Police.2 Therein the
learned judge had considered the provisions of section 59(A) of the CPA in conjunction
with the content of paragraph 8.2 of the South African Police Services National
Directive 3 of 2016. This sub paragraph reads as follows of the judgment i n the court
a quo :

The offences in respect of which the Director of Public Prosecutions or
authorised prosecutors may grant bail, are offences that are more serious than
those in respect of which a Sergeant may grant bail. If an arrested person is in
detention, is an offence in respect of which a Seargent may not consider the
release of a person on bail, the member must determine whether the offence is
contained in Schedule 7 of the Act (Annexure E). If this is the case, the relevant
authorised prosecutor must be contacted by the investigating official and be
informed of the application to be released on bail. A meeting must then be
arranged with the prosecutor to enable him or her to consider the bail
application.

[21] In Malisha, the learned judge conc luded as follows:

It would therefore seem that section 59A places a duty on a police official to
contact the prosecutor, only when an arrested person applies for bail. The
granting or refusal of bail lies in the prosecutor’s discretion, but the police have
a duty to provide information to the prosecutor… To place a burden on the
police in the circumstances where there is no request to facilitate so -called
prosecutor’s bail will lead to undue burden on both the police and the
prosecutors.

[22] The court a quo was dismissive of the judgment in Malisha. The reasons
appear from the following paragraph of the judgment of the court a quo :

2 (2006/2016 ) [2019] ZAECPEHC 37 (12 June 2019 ).

[23] I was referred to a judgment of this division in Malisha v Minister of Police
where the court found that there was no legal duty on the police to contact a
prosecutor and to secure bail for the plaintiff where there wa s no request from
the plaintiff. I respectfully disagree with the reasoning of the learned judge for
the following reasons:
(a) Section 59A does not require the accused person to make application
or represent ations to be released on bail.
(b) It remains a constitutional imperative for an accused person whose
liberty has been limited, whether justifiably or not, to be informed of all
his rights including the right to be released on bail.
(c) Section 59A places a duty on the prosecutor upon receiving the
relevant information from the investigating officer, to make a
determination whether or not to release the accused. By their own
admission, the police did not place this information before the
prosecutor .

[23] In my view, the rejection by the court a quo of the judgment in Malisha was
incorrect. Quite simply, the wording in the provisions contained in section 59A of the
CPA contains no unequivocal prescriptive wording that creates a duty on the part of
police officials. The absence of any reference therein to an accused person making
an application or representations to be rele ased on bail is also not indicative of the
legislature’s intention to create a duty on the part of the police officers. Sensibly, as
found by the learned judge in Malisha (para 69), “[t]here may be a good reason as to
why the police’s duty to call a prose cutor to consider bail in terms of section 59A is
only triggered (on a reading of section 59A) on an application from the arrested person.
It may be that the arrested person is not in possession of sufficient money or needs
time to obtain money. ” As was the case on the evidence placed before the court a
quo in this matter, in Malisha the plaintiff was more than willing to wait until his court
first appearance. In casu this was to take the opportunity to “speak in court.” In
Malisha, it was to obtain the services of an attorney and to obtain bail. Moreover, no
mention is made in section 59A of the CPA of an obligation to inform an arrested
person in detention of his o r her right to make application to be released on bail. This
obligation is to be found in section 50(1)(b) of the CPA, which provides as follows:

A person who is in detention as contemplated in paragraph (a)3 shall, as soon
as reasonably possible, be inf ormed of his or her right to institute bail
proceedings.

[24] The judgment of the court a quo was referred to recently in this division in a
judgment arising from an appeal against a judgment and order of the magistrate’s
court. In Minister of Police v Fry ,4 Hartle J considered the argument that there existed
a duty upon a police officer to consider the release of a detained person on bail
irrespective of whether or not there had been a request for such release. The learned
judge considered th e question in the context of the ability of a police official to release
a person detained in circumstances governed by section 50(1)(a) of the CPA. The
following portion of the judgment is relevant :

[this] expectation of release on bail if the interests of justice permit it do not arise
in my view unless there is first and foremost a duty of the responsible police
officer to consider the detainee’s release on such a basis . I have set out above
an exposition of the machinery for a realization of a detaine e’s right in this
respect.5 Nothing from it (contrary to Kulati which unfortunately does not refer
to the relevant provisions of section 50(1)(b) of the CPA) suggests to my mind
that a responsible police officer is required to consider the release on bai l
pending trial of a detainee unless there is a request in this respect .

[25] In Fry, the court also had regard to the judgment of the Supreme Court of
Appeal in National Commissioner of Police v Coetzee6 where the court was called
upon to consider whether the effect of the provisions of section 50(1)(b) of the CPA
and 35( 1)(f) of the Constitution7 entailed that the relevant police officer responsible for
considering bail under those circumstances was obliged to do so without having been
asked by an arrested person to do so. The following was held in para [16] of the

3 Paragraph (a) provides that any person who is arrested with or without a warrant for allegedly
committing a crime shall be brought to a police station as soon as possible.
4 (CA259/2019) [2020] ZAECGHC 150 (6 December 2020) .
5 The learned judge had earlier set out the provisions of section 59(1)(a) of the CPA.
6 2013 (1) SACR 358 ( SCA).
7 Constitution of the Republic of South Africa 1996.
judgment:

“[16] Courts must guard against and resist the temptation to impose duties on
police officials under the guise of an alleged protection of rights guaranteed in
the Bill of Rights, which existing law, in this case the CPA, does not impose. It
is well to rep eat what Stegmann J said in S v Baleka & Others 1986 (1) SA 361
(T) at 374H - 375A:
‘The Supreme Court has inherent powers under the common law, exercised
particularly by way of the interdictum de homine libero exhibendo , to protect the
liberty of the subject, and to ensure that interference by the State with individual
liberty does not g o beyond the proper exercise of the State’s lawful powers.
Nevertheless, when a person has lawfully been arrested and charged with the
commission of an offence, the question of his right to apply for his release on
bail pending his trial or the outcome the reof, is a question which is exhaustively
governed by statutory provisions. No room remains for the exercise of the
court’s inherent common law powers in that respect, save, perhaps, to the
extent that such powers can be exercised within the framework set by the
statutory provisions.’
The same applies, in my view, where the arrested person has not as yet been
charged, as was the case with the respondent in this instance.
[17] The conclusion I have reached above, that the finding of the court a quo
that the detention of the respondent was unlawful had no foundation, means
that the substratum or basis for the costs orders it made has collapsed. The
orders must accordingly be set aside. But I must stress that I have grave
difficulty in understanding why, in any event, costs orders – let alone the
unprecedented punitive costs orders – were made against the station
commander of the Pretoria West Police Station, senior superintendent
Moodley, and his assistant, superintendent Klopper. Their sin, it seems, was a
failure to explain or to give reasons on the ‘return day’ ‘why no member of the
SAPS considered the [respondent’s] position and why the complaints
commanders, Nhlazo and Dulebu did not take any action’, and ‘why the station
commander on duty at the time did n ot do anything pertaining to the
[respondent’s] position’. Although these officers, including Captain Nhlazo and
Inspector Dulebu, did not depose to any affidavits, the court a quo concluded
that they ‘had been joined as respondents to the proceedings, be cause they
were represented by counsel and also because they opposed the relief sought,
and even argued that the arrest and detention were lawful . . .’ and that they
‘infringed upon the constitutional right of the [respondent] not to be detained
unlawfull y . . . ’. The fact of the matter, though, is that the officers were invited
by the court a quo to provide it ‘with further facts pertaining to the events at the
police station’.
Captain Nhlazo was apparently on duty at the time the respondent was
detaine d and Inspector Dulebu took over from him at 19h00. (The same costs
orders were made against them.) The implication is that Inspector Dulebu
should, upon coming on duty, have enquired from each and every detainee held
at his police station what the reason for his or her arrest was and to consider
whether or not to grant bail. Much as that would be a most desirable exercise,
it would, to my mind, be an onerous duty to impose on the police. It is a well -
known fact that the police service suffers from an acute shortage of personnel.
The reasoning of the court a quo is, with respect, untenable.”

[26] In the circumstances, the court held in Fry that there is no general obligation
resting upon the relevant police official to apply his mind to the further detentio n of the
arrested person in that matter because he had not been asked by her to consider her
release on bail.

[27] The court also referred with approval to the decision in Malish a in support of
the conclusion reached in Fry.

[28] Before this court counsel for the respondent relied upon the following
paragraphs in the judgment in Syce and Another v Minister of Police8:

[41] The Minister’s defence of the unlawful detention claim r ested upon s
39(3) of the CPA. That section provides that the effect of a lawful arrest shall
be that the person arrested shall be in lawful custody until lawfully discharged
or released from custody. It was the Minister’s case, therefore, that the

8 2024 (2) SACR 1 (SCA).
detenti on of Mr Syce pursuant to his lawful arrest remained so until his release.

[42] While s 39(3) of the CPA provides for the continuity of the lawfulness of
the detention of a suspect, it must be read in the context of those provisions of
the CPA which prov ide for the release of a suspect from detention. Lawful
release from custody may occur either before, at or after the detained suspect’s
first appearance in court, as is required by s 50 of the CPA. Release from
custody prior to the first appearance in cou rt may occur by release on bail or
warning, for specified offences, in terms of ss 59 and 59A of the CPA. These
sections impose upon the police certain obligations, in relation to detained
persons, which, if not met may render the continued detention of a suspect
unlawful, notwithstanding s 39(3) of the CPA .

[43] Section 50(1)(b) obliges the police to inform the detained person, as
soon as reasonably possible’ of the right to apply for bail. Subsection (1)(c)
provides that:
‘Subject to paragraph (d), if s uch 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 pos sible, but not
later than 48 hours after the arrest.’

[44] Section 50 therefore contemplates that a detained person must be
informed of their right to bail in order that the right may be exercised even before
the first appearance. Section 59, which applies in this case by virtue of the
offence for which Mr Syce was arrested and detained, provides for bail to be
granted by a senior police officer. In relevant part it states:
‘(1)(a) An accused who is in custody in respect of any offence, other than an
offence –
(i) referred to in Part II or Part III of Schedule 2;
. . .
may, before his or her first appearance in a lower court, be released on bail in
respect of such offence by any police official of or above the rank of non -
commissioned officer, in consultation with the police official charged with the
investigat ion, if the accused deposits at the police station the sum of money
determined by such police official.’

[45] In Setlhapelo v Minister of Police and Another: it was held that:
‘[I] am of the view that once the jurisdictional facts for the consideration of police
bail in terms of s 59(1)(a) of the CPA are present, the police have a
constitutional duty to ascertain as soon as reasonably possible after the arrest
whether the arrestee wishes bail to be considered. If the arrestee wishes to
apply for police b ail, the senior police official, in consultation with the
investigating police official, must consider bail as a matter of urgency. A failure
to inform the arrestee of his constitutional right to apply for bail or a failure to
consider bail or any unreason able delay in the process could, depending on the
circumstances of the case, render the arrestee's further detention until his firs t
appearance in court unlawful.

[29] In essence, the submission made was that the facts in Syce were the same as
those in th e matter under scrutiny in this court and that in the circumstances this court
should find that the detention of the respondent was unlawful.

[30] In my view, there are important differences between the facts in the matter
before this court and those that emerge from the judgment in Syce. In Syce the plaintiff
did give evidence and stated that he was not informed of his right to apply for bail in
terms of section 50(1)(b) of the CPA. No evidence was presented on behalf of the
Minister of Police to ch allenge the assertion that the plaintiff was not informed of his
right to apply for bail. Therefore, his evidence stood uncontradicted. In the present
matter, the plaintiff led no evidence in support of the allegations made in the amended
particulars of claim. Evidence was led from the releva nt me mber s of the South African
Police Services and stood uncontradicted. That evidence indicates that the
respondent was informed of his right to apply for bail. It indicates further that this was
done timeously a nd that the respondent made no indication of a willingness to be
released on bail.

[31] The argument before this court based specifically upon paragraph [44] of the
judgment in Syce was that what is required in order that the right to bail maybe
exercised even before the first appearance is an explanation (in the present matter) of
the mechanism provided for in section 59A of the CPA, not just an explanation that the
respondent had a right to apply for his release on bail. In the context of the facts that
were considered by the Supreme Court of Appeal in Syce, the emphasis appears to
me to have been on the need for a detainee to be informed timeously of the right to
apply for bail.

[32] The footnote9 to the first sentence in paragraph [44] of Syce reads as follows:

The obligation to give expeditious effect to the right to apply for bail, either in
court or in terms of ss 59 and 59A of the CPA, is clear. In Magistrate,
Stutterheim v Mashiya 2004 (5) SA 209 (SCA) par 16, it was held that a
detainee has a pr ocedural right to a prompt decision upon a request for bail that
is not dependent upon the merits of the request, and in Mashilo and Another v
Prinsloo [2012] ZASCA 146; 2013 (SACR) 648 (SCA) par 16, it was held that
‘expedition relative to circumstances i s what is dictated by [ss 50(1)( b) and ( c)]
and the Constitution.’

[33] In the matter before this court, the respondent was informed expeditiously of
his right to apply for bail. Had he wished to do so, the respondent could have exercised
his right to ap ply for bail even before he appeared in court.

[34] In my view, the proper interpretation of the judgment in Syce supports the view
that the relevant members of the South African Police Services have a duty in
accordance with the provisions of section 59A of the CPA when a detainee to whom
those provisions are applicable seeks to exercise the right to apply for bail. The
principle re -asserted in Syce is that the detainee must be informed expeditiously of
their right to bail. The judgment in Syce is not supportive of a finding that the provisions
of section 59A of the CPA create a duty on the part of the relevant members of the
South African Police Services to initiate the process securing bail in the absence of a
request from the detainee.

9 Footnote 18 in Syce.

[35] In my view, the approach adopted by the Supreme Court of Appeal in Coetzee
is the correct approach to be adopted in this matter. The relevant provisions of section
59A of the CPA do not impose duties on officials of the South African Police Force that
are not unequivocally set out therein. This court must guard against the judicial
imposition of burdensome duties on the police officials. In the absence of a request
having been made by the respondent, the court a quo erred in concluding that the
provision s of section 59A of the CPA created a duty on the relevant police official to
raise the release of the respondent on bail with the prosecutor.

[36] It follows that there is merit in the present appeal and that it should be upheld.
The issue in the appeal was sufficiently complex to warrant the employment of two
counsel.

[37] What remains is the issue of costs. As was the approach adopted in Fry, this
court finds the principle expressed in Minister of Safety and Security and Another v
Schuster and Another10 apposite. This case plainly not a “constitutional matter” and it
would be unjust and inequitable to deprive the successful appellant of costs on an
erroneous application of the “Biowatch principle”. Costs must follow the resul t. The
issue in t he appeal was sufficiently complex to warrant the employment of two counsel .

[38] The following order is made.

1. The appeal succeeds with costs, such costs to include the costs of the
application for leave to appeal and the costs occasioned by the employ ment
of two counsel.

2. The judgment and order of the court a quo are set aside and replaced with
the following:

“The plaintiff’s claim is dismissed with costs.”


10 (114/2018) [2018] ZASCA 112 (13 September 2018) para [26].


RWN BROOKS
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

MJALI J:

I agree .


NG MJALI
JUDGE OF THE HIGH COURT

MATEBESE AJ

I agree


ZZ MATEBESE
JUDGE OF THE HIGH COURT (ACTING)


Appearances:

For the App ellant: Adv A Rawjee SC
Adv N O’Brien
Instructed by: The Office of the State Attorney
c/o Lulama Prince Inc
87 High Street
Makhanda

For the Respondent: Adv JD Le Roux
Adv M van Schalkwyk
Instructed by: Neville Borman & Botha
22 Hill Street
Makhanda

Date of hearing: 19 May 2025
Date of delivery: 23 May 2025