IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 4514/2022
In the matter between:
LWANDILE NGOBIZEMBE BRIAN
NDZULULEKA Plaintiff
and
MINISTER OFJUSTICE FOR THE
DEPARTMENT OF JUSTICE AND
CONSTITUTIONAL DEVEMOPMENT 1ST Defendant
THE MAGISTRATE’S COMMISSION 2nd Defendant
JUDGMENT
ZONO AJ:
Introduction
[1] The plaintiff instituted action proceedings for delictual damages arising
from of the Magistrate’s actions when performing her judicial functions.
The claim is against the Minister of justice and Constitutional
Development1. The Minister is sued as a nom inal defendant, vicariously
liable for all the delicts committed by its employees when acting within the
course and scope of their employment. The Magistrate’s Commission is
cited as the second defendant. Although in the particulars of claim the
second defendant was cited on the basis that it is vicariously liable for the
wrongs or omissions of the employees when acting within the course and
scope of their employment, no claim had been pursued against it during the
trial of this matter. The matter is defend ed by the first defendant (the
Minister), and in so doing the Minister has filed a plea.
[2] While the lawfulness of the conduct of the Magistrate, Mount Frere is in
dispute I deal hereinafter with the averments that are common cause.
[3] On 02nd April 2022 at or near Mt Frere, the plaintiff was arrested by the
Traffic Officers for driving a motor vehicle under the influence of alcohol;
and was then detained in the Mt Frere Police cells until 03 rd April 2022
when he was granted police bail. The plaintiff, after payment of bail
money, was warned to attend court on 04 th April 2022. He was then
released.
[4] On 04th April 2022, when appearing in Mt Frere Magistrates Court, the
Magistrate enquired if the plaintiff had any previous convictions and
pending cases. In respect of the pending cases the plaintiff answered in the
negative; with regard to previous convictions he confirmed that he had one
1 This appellation had been changed to the Department of Justice and Correctional Services.
previous conviction of selling liquor in Sasolburg without licence, in
respect of which he was convicted to three months’ imprisonment, wholly
suspended. The Magistrate then remanded the plaintiff in custod y as she
wanted to satisfy herself with regards to previous convictions. The first
defendant in his plea confirms that the plaintiff was remanded in custody
because the court needed to satisfy itself with regard to his previous
convictions.
[5] Because of the importance of these facts it is apposite to quote the relevant
averments from the pleadings. The plaintiff avers in his amended
particulars of claim as follows:
“4.2 Subsequent to the plaintiff’s release on Police bail, the plaintiff
alleged furt her that on the 04 th April 2022, he did appear before the
Magistrates Court as ordered where the Presiding Officer enquired as to
whether plaintiff had any previous conviction and/ or pending cases.
4.1 According to the plaintiff his response was that he had no pending cases
and that previous conviction he had was that of selling liquor without licence
and that plaintiff was convicted to three months suspended sentence.
4.2 Plaintiff alleged further that, the Presiding Officer then told him that she
would investigate whether the plaintiff has no other pending cases.
4.3 And that the Presiding Officer then ordered that plaintiff should be held in
custody whilst the Presiding Officer was still investigating whether the plaintiff
has no pending cases.
4.4 As a result of the Presiding Officer’s order, the plaintiff was detained at
Wellington Prison in Mthatha where he was held as an awaiting trial inmate as
from the 04th April 2022, up until the 13Th April 2022, when he was taken back
to Mount Frere Magis trate’s Court and appeared before the same presiding
officer who then ordered that the plaintiff be released as she had established
that plaintiff had no pending cases” (sic).
[6] To these averments the first defendant pleads as follows:
“ 6.
1st Defendant denies paragraph 4.1 of the plaintiff’s particulars of claim in
amplification thereof, plaintiff was only granted bail after it was proven to the
satisfaction of the court that plaintiff had no previous convictions.
7.
1st Defendant admits paragraph 4.2 of the plaintiff’s particulars of claim hence
plaintiff was remanded in custody.
8.
1st Defendant denies paragraph 4.3 of plaintiff’s particulars of claim and avers
that all plaintiff was told was that the court needs to satisfy itself with regards
to his previous convictions.
9.
1st Defendant admits paragraph 4.4 of plaintiff’s particulars of claim, but
denies the rest of the paragraph” (sic).
[7] The plaintiff further avers that the Magistrate was actuated by malice,
recklessness as there was no probable and reasonable cause to conduct
herself in the manner she did. The Magistrate acted without critically
analysing the information at her disposal before detaining the plaintiff, i.e.,
whether the plaintiff was a flight risk or he would hamper any
investigation, etcetera.
[8] During evidence, the plaintiff regurgitated the content of his particulars of
claim as amended, and stated that the police bail was granted at R2500.00
on 03rd April 2022. He confirmed that he was granted police bail on 03 rd
April 2022 and appeared in court on 04th April 2022 where, after disclosing
that he has no pending cases and one previous conviction, the Magistrate
remanded him in custody to afford herself an opportunity to investigate and
verify the truthfulness of his disclosures. He was detained at Wellington
Correctional Facility until 13th April 2022, the date on which he appeared
in court and released by the same Mag istrate as his charges were
withdrawn. During cross examination the plaintiff remained consistent.
[9] The first defendant called the evidence of the Magistrate, Ms Cynthia
Nokonwaba Mboto who was the Presiding Officer in the plaintiff’s case
respectively on 04 th April 2022 and 13 th April 2022. While confirming
plaintiff’s version about their interaction in court, she testified that she
explained to the plaintiff that the police officers, who released him on bail,
made a mistake by granting him bail. She explained that plaintiff’s position
in court had changed as he was no longer facing schedule 1 offence, but
schedule 5 offence. Her understanding was that, because the plaintiff was
found guilty of a Schedule 1 offence in Sasolburg for selling liquor without
a licence, and had committed a further Schedule 1 offence of driving a
motor vehicle under the influence of alcohol, those two schedules, put
together make a Schedule 5. She further testified that on 13 th April 2022
Mr Mene appeared in court representing the plaintiff and he addressed the
court and as a result of the address made by Mr Mene to the court the
plaintiff was released. She denied that on 04 th April 2022 she postponed
the matter for her to investigate as alleged by the plaintiff.
[10] It transpired that no enquiry at all was held or conducted by the Magistrate
before directing that the plaintiff be detained. She categorically stated that
it was enough for her to know that the plaintiff has a previous conviction.
She did not ask anything after the disclosure but remanded plaintiff in
custody. She confirmed that the plaintiff was arrested based on schedule 1
offence, but that changed when he disclosed his previous convictions in
court on 04th April 2022. She testified also that no formal bail app lication
took place, but she was addressed by Mr Mene, plaintiff’s legal
representative.
Decision and Analysis
[11] The Minister is vicariously sued for Magistrate’s action of wrongful
deprivation of plaintiff’s liberty for a period spanning from 04th April 2022
to 13th April 2022. The exercise of her Judicial functions are said to have
been actuated by malice and recklessness. However, negligent execution
of judicial duties is not sufficient2, the Magistrates actions had to be mala
fide, malicious or fraudulent before delictual liability can arise. Judges and
Magistrates or any other persons exercising judicial function, are in
principle not liable for acts done in their judicial capacity3. However, if the
Magistrates act with an improp er motive, the judicial capacity is abused
and he or she may be liable. In such a case the Magistrate exceeds the
bounds of the authority derived from the judicial office 4. It is therefore
plain that in some instances a shield of judicial immunity may be lifted or
pierced.
[12] The wrongful and blameworthy form of conduct must be adjudged with
reference to the facts and evidence duly led in accordance with acceptable
rules of evidence. The Magistrate testified that she explained to the plaintiff
that the police officers who released him on bail were wrong to do so. She
further explained that the plaintiff was then facing a schedule 5 offence and
would then be remanded in custody. She further testified that on 13th April
2022 she released the plaintiff b ecause she was addressed by Mr Mene.
Save for a version about schedule 5, all of this version was never put on
the plaintiff when he was still on the witness box in this court to comment
on. This is important because the plaintiff presented to this court a different
2 Moeketsi v Minister Van Justice 1988 (4) SA 707 (T) at 714.
3 Penrice v Dickson 1945 AD 6 Para 14-15.
4 LAWSA V ol 8, Part 1, Page 162-163, Para 92.
version which suggests that no explanation was ever made to him. The
Magistrate, as part of her order advised the plaintiff that he would need to
investigate whether or not it is true that he had no other pending cases and
about his previous convictions. However, it was never put to the plaintiff
in this court that on 04 th April 2022 he was advised that he is facing a
schedule 5 offence. The only thing that was put to the plaintiff in this court
is that the Magistrate was justified to remand the plaintiff in custody,
because he was facing a schedule 5 offence. I therefore accept that the
plaintiff was never advised by the Magistrate that he is facing a schedule 5
offence.
[13] It is grossly unfair and improper to allow a witness’s evidence to go
unchallenged during cross examination and then later argue that the
witness should be disbelieved. This underscores the importance of putting
party’s version to the other party’s witness during cross -examination to
allow the witness an opportunity to respond and explain any contradiction.
In cross-examination parties should put their own version to the witness,
especially if it contradicts the witness’s testimony, to give the witness a
chance to explain5.
[14] I am in full agreement with the dictum made in Boesak6 where it was held
that:
“50…. it is clear law that a cross-examiner should put his defence on each and
every aspect which he wishes to place in issue, explicitly and unambiguously, to
the witness implicating his client. A criminal trial is not a game of catch -as-
catch-can, nor should it be turned into a forensic ambush.
5 Small v Smith 1954 (3) SA 434 (SWA) at 438.
6 S v Boesak (105/99) [2000] ZACSA 24 (12 May2000) Para 50.
A Failure to put version to the witness when still in the witness box and
later rely on that version amounts to a litigation by ambush which is
impermissible. A defence that arises when a witness can no longer answer
thereto cannot be accepted and can only be regarded as an afterthought.
[15] The Constitutional Court has not been silent on this issue 7 where it was
held:
“61. The institution of cross-examination not only constitutes a right; it also
imposes certain obligations. As a general rule it is essential, when it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct the witness’ s attention to the fact by questions
put in cross-examination showing that the imputation is intended to be
made and to afford the witness an opportunity, while still in the witness
box, of giving any explanation open to the witness and of defending his
or her character. If a point in d ispute is left unchallenged in cross -
examination, the party calling the witness is entitled to assume that the
unchallenged witness’ s testimony is accepted as correct. This rule was
enunciated by the House of Lords in Browne v Dunn 3 and has been
adopted and consistently followed by our courts.”
[16] Classen J8 said this:
“It is, in my opinion, elementary and standard practice for a party to put to each
opposing witness so much of his own case or defence as concerns that witness,
and if need be, to inform him, if he has not been given notice thereof, that other
witnesses will contradict him, so as to give him fair warning and an opportunity
of explaining the contradiction and defending his own character. It is grossly
unfair and improper to let a witness e vidence go unchallenged in cross
examination and afterwards argue that he must be disbelieved.9
[17] Having found that the Magistrate had failed to advise the plaintiff of the
alleged wrongfulness of his release on bail by the police; and that the
plaintiff was then facing schedule 5 offence as explained by her in her
plaintiff was then facing schedule 5 offence as explained by her in her
7 President of the Republic of South Africa and others v South African Rugby Football Union and others
2000(1) SA 1 (CC); 1999 (1) BCLR 1059 (CC) Para 61.
8 Small v Smith 1954 (3) SA 434 (SWA) at 438.
9 D T Zeffertt: The South African Law of Evidence, Second Edition, Page 912-914.
testimony, I find that the plaintiff’s testimony is possibly true that the
Magistrate advised the plaintiff that she was remanding him in custody as
she would investigate plaintiff’s pending cases or previous convictions. No
explanation was made by the Magistrate about plaintiff’s changed position
as a result of changed schedule. No mention of Mr Mene’s involvement
was made when the plaintiff was still in the witness box. For that reason, I
cannot accept anything relating to Mr Mene’s involvement in the release
of the plaintiff on 13 th April 2022. I further deal with this subject, the
reasons and the manner in which the plaintiff was deprived liberty and
freedom in the ensuing paragraphs.
[18] In Jager’s 10 Eksteen AJP stated as follows:
“ ….where there are two mutually destructive stories, he can only succeed if he
satisfies the Court on a preponderance of probabilities that his version is true
and accurate and therefore acceptable, and that the other version advanced by
the defendant is therefore false or mistaken and falls to be rejected. In deciding
whether tha t evidence is true or not the Court will weigh up and test the
plaintiff’ s allegations against the general probabilities. The estimate of
credibility of the witness will therefore be inexplicably bound up with a
consideration of the probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will accept his version as being probably
true. If, however, the probabilities are evenly balanced in the sense that they do
not favour the plaintiff’ s case any more than they do the defendant’ s, the plaintiff
can only succeed if the Court nevertheless believes him and is satisfied that his
evidence is true and that the defendant’ s version is false”.
[19] It is palpably clear that Magistrate’s evidence sought to contra dict the
version set out in the first defendant’s plea. The only pleaded reason for
version set out in the first defendant’s plea. The only pleaded reason for
plaintiff’s detention on 04 th April 2022 was that the Magistrate sought to
satisfy herself about plaintiff’s previous convictions. That version makes
common cause with plaintiff’s version. Under cross examination the
Magistrate testified that plaintiff’s release on bail was not wro ngful, but
10 National Employers General Insurance Company v Jagers 1984 (4) SA 437 at 440 E-G.
however states that such release was unlawful as the plaintiff faced a
schedule 5 when he appeared in court on 04 th April 2022. The Magistrate,
however, testified that during plaintiff’s arrest and release by the police
official, the plaintiff w as facing a schedule 1 offence of driving a motor
vehicle under the influence of liquor.
[20] I must hasten to deal with the fact whether the plaintiff, on 02nd April 2025
was charged by the Police with ashcdule1, it being driving a motor vehicle
under the influence of alcohol. The starting point should be offences listed
under schedule 1. Specific offences are clearly mentioned thereunder.
There is no Traffic offence mentioned thereunder. However, the relevant
part or clause of schedule 1 reads as follows:
“Any offence, except the offence of escaping from lawful custody in
circumstances other than the circumstances referred to immediately hereunder,
the punishment wherefore may be a period of imprisonment exceeding six
months without the option of a fine.”
[21] The catch -all-clause referred to about is limited only to offences
punishment of which is a period of imprisonment exceeding six months
without an option of a fine. An offence qualifies to be a schedule 1 offence
only if it carries a punish ment that exceeds six months imprisonment
without an option of a fine. That is the sole prerequisite under this clause
for an unmentioned or unspecified offence to qualify as a schedule 1
offence; other than that it does not qualify.
[22] Driving while u nder the influence of intoxicating liquor is an offence
referred to and prescribed by section 65(1) read with section 89(2) of the
National Road Traffic Act 93 of 1996. Section 65(1) of the Act reads as
follows:
“No person shall on a public road-
(a) drive a vehicle; or
(b) occupy the driver’ s seat of a motor vehicle the engine of
which is running, while under the influence of intoxicating liquor or a
drug having a narcotic effect.”
[23] Section 89(2) of the same Act11 provides thus:
“(2) Any person convicted of an offence in terms of subsection (1) read with
section 42(1) or (2), 44(1), 45(2), 46(1) or 65(1), (2), (5) or (9) shall be liable
to a fine or to imprisonment for a period not exceeding six years.”
[24] I reiterate that the nature of the punishment is a determining factor to
establish if an offence is a schedule 1 offence or not. Section 89 (2) of the
Act prescribes an option of a fine for a person found guilty of driving under
the influence of intoxicating liquor. However, an imperative requirement
of schedule 1 is that an offence must attract a sentence of direct
imprisonment without an option of a fine. In these circumstances, an
offence that attracts a non- custodial sentence is not a schedule 1 offence.
[25] Accordingly, I find that the offence with which the plaintiff was charged12
in the Magistrate’s court was is not a schedule 1. I may allude to the fact
that some traffic offences are referred to under schedule 3. Offences
relating to illicit possession, conveyance or supply of dependence
producing drugs or intoxicating liquor are referred to in Part 1 of schedule
2. With this exposition, the Magistrate was clearly not correct to suggest
that a traffic offence with which the plaintiff was charged was a schedule
1 offence. Equally, an illicit supply of liquor is not a schedule one offence.
Even if it can be accepted that the plaintiff was advised of schedule 5
11 National Road Traffic Act 93 of 1996.
12 Driving under the influence of intoxicating liquor.
offence in Magistrate’s court, which is not the position, I would still find
that the plaintiff was detained for all the wrong reasons. I shall further deal
with this aspect elsewhere in this judgment. I however, am of the view that
reference in this court to schedule 5 is an afterthought. It is used as a ruse
or stratagem to successfully spite on the plaintiff a nd to mete out malice
scot-free.
[26] For the sake of completion on this issue, section 59 of CPA 13 provides
thus:
“(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;
(ii) against a person in a domestic relationship, as defined in section 1 of the
Domestic Violence Act, 1998 (Act 116 of 1998); or
(iii) referred to in
(aa) section 17 (1) (a) of the Domestic Violence Act, 1998;
(bb) section 18 (1) (a) of the Protection from Harassment Act, 2011 (Act
17 of 2011); or
(cc) any law that criminalises a contravention of any prohibition,
condition, obligation or order, which was issued by a court to protect
the person against whom the offence in question was allegedly
committed, from the accused, 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 investigation, if
the accused deposits at the police station the sum of money
determined by such police official.
(b) The police official referred to in paragraph (a) shall, at the time of
releasing the accused on bail, complete and hand to the accused a
recognizance on which a receipt shall be given for the sum of money
deposited as bail and on which the offence in respe ct of which the bail
is granted and the place, date and time of the trial of the accused are
entered.
(c) The said police official shall forthwith forward a duplicate original of
entered.
(c) The said police official shall forthwith forward a duplicate original of
such recognizance to the clerk of the court which has jurisdiction.”
13 Criminal Procedure Act 51 of 1977.
[27] It is on the basis of the provisions of section 59(1) of CPA that the plaintiff
was granted bail by the police official. It is further on this basis that the
Magistrate expressely testified that the released of the plaintiff by the
police official was not wrongful. However, I have already found that the
version about the plaintiff’s changed circumstances according to the
Magistrate, was never imparted to the plaintiff on 04 th April 2022. The
plaintiff was never engaged on the alleged changed circumstance s.
According to the Magistrate, it was enough that the plaintiff had disclosed
previous convictions, she did not further enquire on anything thereafter,
she then remanded him in custody.
[28] Mr Nabela, Counsel for the first defendant both in his oral a nd written
submissions sought to rely on the provisions of section 68 (1) (e) and (g)
of CPA, which provides as follows:
“68 Cancellation of bail
(1) Any court before which a charge is pending in respect of which bail has
been granted may, whether th e accused has been released or not, upon
information on oath that-
……….
(e) the accused has not disclosed or has not correctly disclosed all his
or her previous convictions in the bail proceedings or where his or her
true list of previous convictions has come to light after his or her
release on bail;
………..
(g) it is in the interests of justice to do so, issue a warrant for the arrest
of the accused and make such order as it may deem proper, including
an order that the bail be cancel led and that the accused be committed
to prison until the conclusion of the relevant criminal proceedings.”
[29] In Cool Ideas14 the Constitutional Court observed as follows:
14 Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) Para 28.
“[28] A fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning, unless to do
so would result in an absurdity. There are three important interrelated
riders to this general principle, namely:
(a) that statutory provisions should always be interpreted
purposively;
(b) the relevant statutory provision must be properly
contextualised; and
(c) all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions ought
to be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to the
purposive approach referred to in (a).”
[30] The plain grammatical m eaning of section 68(1)(e) and (g) of CPA 15(the
empowering provision) demonstrates the following jurisdictional facts16
that need to be in existence before a judicial power 17 can be exercised:
Firstly, there must be a case (charge) in respect of wh ich bail has been
granted; secondly, there must be an information on oath supporting
cancellation of bail; thirdly, demonstrating that the accused had not
disclosed or had not correctly disclosed all his or her previous
convictions in the bail proceedings or that the true list must have come to
light after his or her release on bail. A number of these jurisdictional facts
have not been established, as I will demonstrate hereinunder.
[31] It is plain that there was no information on oath that serv ed before the
Magistrate that would justify the cancellation of bail and an order
remanding the plaintiff in custody. Even the plaintiff, when he was
15 SATAWU and another v Garvas and others 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) Para 37.
16 Paola v Jeeva NO 2004 (1) SA 396 (SCA) Para 11, 14 and 16.
17 Section 165(1) of the Constitution: The judicial authority of the Republic is vested in the courts.
answering about the existence of a previous conviction on 04th April 2022,
was not doing that under oa th. Put differently, no evidence that the
plaintiff disclosed his previous convictions of selling alcohol without
licence under or on oath. It was the duty of the defendant to demonstrate
that the disclosure was made under oath. The reason for the afore said
proposition is no far to seek. As the plaintiff was already put on bail, the
Magistrate sought to interfere with plaintiff’s liberty and freedom, which
is a constitutional right 18. Every interference with plaintiff’s physical
liberty is prima faci e unlawful. Once the claimant establishes that an
interference has occurred, the burden of proof falls upon the person
causing the interference to establish a ground of justification. 19 The
defendant fails on the first hurdle to show that jurisdictio nal facts for the
cancelation of bail were met.
[32] Both the pleadings and evidence are bereft of information that the plaintiff
failed to disclose or that he had incorrectly disclosed his previous
convictions in bail proceedings. Again the defendant has fail to call or lead
evidence to show that the police official who granted bail was not
favoured with the requisite information or was misled. No facts
pleaded by the first defendant showing reliance on section 68(1) (e) and
(g) of CPA 20. I need not decide if there were bail proceedings serving
before a police official referred to in section 59(1) of CPA. However, for
purposes of this matter, I am confident that plaintiff’s bail application duly
18 Section 12(1) of the Constitution provides thus: Everyone has the right to freedom and security of person,
which includes the right-
(a) not to be deprived of freedom arbitrary or without just cause.
(b) not to be detained without trial”
19 Zealand v Minister of Justice and Constitutional Developmnet and another 2008 BCLR 601 (CC), 2008 (2)
SACR 1 (CC) Para 25.
SACR 1 (CC) Para 25.
20 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 (4) SA 49
(CC); 2004 (7) BCLR 687 (CC) Para 27-28.
proceeded before the police official abo ve the rank of non -
commissioned officer, in consultation with the police official charged
with the investigation. That bail is ex lege given a status of bail granted
in terms of section 60 of CPA21, where the bail is granted by court
pursuant to bail proceedings. In the light of the above, I am of a
considered view that reliance on the provisions of section 68(1) (e)
and (g) of CPA is misplaced.
[33] Reliance on the provisions of section 68(1) (e) and (g) of CPA is misplaced
for another reason. Neither the plea nor first defendant’s evidence identify
facts clearly showing that section 68(1) (e) and (g) of CPA is relied upon22.
It was improper for Mr Nabela, first defendant’s Counsel to seek refuge on
the statutory provision that is not relie d on in the pleadings or canvassed
in evidence. The purpose of the pleadings is to define the issues for the
other party and the court. A party has a duty to allege in the pleadings the
material facts upon which it relies. It is impermissible for a par ty to plead
a particular case and seek to establish a different case at the trial 23.
Defendant’s pleaded case is that the Magistrate remanded the plaintiff in
custody simply because she wanted to satisfy herself [with regard to
plaintiff’s previous co nvictions]. That version is fairly consistent with
plaintiff’s case.
[34] In the light of the above, it is plain that Magistrate’s decision to remand
plaintiff in custody was blatantly arbitrary, unlawful and was without just
21 Section 59(2) of Criminal Procedure Act 51 of 1977 as amended.
22 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107.
23 Minister of Safety and Security v Slabbert 210 (2) ALL SA 474 (SCA) Para 11.
cause. It is so because i t offended the provisions of Section 12(1) (a) of
the Constitution which reads as follows:
“(1) everyone has a right to freedom and security of the person,
which includes the right-
(a) not to be deprived of freedom arbitrarily or without just
cause.”
There was simply no basis in law for the Magistrate to remand the plaintiff
in custody the plaintiff. That is however not the end of the enquiry. It is not
enough to prove that Magistrate’s conduct was unlawful and arbitrary; it
must also be shown that the Magistrate was motivated by malice or was
mala fides 24 or was fraudulent. The test should now be factual and
objective.
[35] Firstly, there are a number of things the Magistrate was unable to explain
to support her decision to remand plaintiff in custody. It is common cause
that the plaintiff was remanded in custody for the Magistrate to investigate
plaintiff’s previous conviction, at least at the level of the pleadings. I found
that was the sole reason for plaintiff detention on 04th April 2022.
[36] Under cross examination the plaintiff testified that she did not ask
anything after the plaintiff told her of his previous convictions. When she
was asked if she had facts around previous conviction, the Magistrate
testified that it was enough that she was informed of previous convictions.
Both in her evidence in chief and under cross examination the Magistrate
testified that she remanded plain tiff because she wanted to ensure that
interests of justice are served. Interests of justice would be served by her
24 Inspired by bad faith.
being satisfied of plaintiff’s pending cases or previous convictions. I am
therefore satisfied that the Magistrate ordered the detention of the plaintiff
because she wanted to investigate plaintiff’s previous convictions.
[37] It is apposite to refer to the case of SFW25 where Nienaber JA had this
to say:
“[5] On the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So too on a number of peripheral areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving factual disputes of this nature
may conveniently be summarised as follows. To come to a conclusion on
the disputed issues a court must make findings on (a) the credibility of
the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court’s finding on the credibility of a
particular witness will depend on its impression about the veracity of
the witness. That in turn will depend on a variety of subsidiary factors,
not necessarily in order of importance, such as (i) the witness’s candour
and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii)
internal contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or with
his own extracurial statements or actions, (v) the probability or
improbability of partic ular aspects of his version, (vi) the calibre and
cogency of his performance compared to that of other witnesses
testifying about the same incident or events. As to (b), a witness’s
reliability will depend, apart from the factors mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an analysis
and evaluation of the probability or improbab ility of each party’s
and evaluation of the probability or improbab ility of each party’s
version on each of the disputed issues. In the light of its assessment of
(a), (b) and (c) the court will then, as a final step, determine whether the
party burdened with the onus of proof has succeeded in discharging it.
The hard cas e, which will doubtless be the rare one, occurs when a
court’s credibility findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
25 Stellenbosch Farmers Winery Group Ltd and another v Martell et CIE and others 2002 (1) SA 11 (SCA) Para
5.
I have dealt above with the internal contradictions between first
defendant’s plea and Magistrate’s evidence.
Was it the duty of the Magistrate to investigate?
[38] Plaintiff’s freedom and liberty was severely interfered with in the process
or context of Magistrates performance of judicial functions. The basis
for remanding the plaintiff in custody is that the Magistrate sought to
satisfy herself by investigating plaintiff’s previous convictions or
pending cases. I have stated above that in terms of section 165(1) of the
Constitution judicial authority is vested in courts. However, investigative
powers do not vest in courts. A court that taps into the investigative terrain
encroaches to the competency of another branch, sphere, arm of
government or functionary.
[39] Investigations relating to the crimes allegedly committed is a preserve of
the police service. It falls within the objects of the police serv ice. Section
205(3) of the Constitution provides thus:
“(3) The objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure the inhabitants of
the Republic and their property, and to uphold and enforce the law.”
Whilst adjudicative powers vests in courts 26, investigative powers vests in
the police service27.
26 Section 165(1) of the Constitution.
27 Section 205(3) of the Constitution.
[40] In Bato Star Fishing28 O’Regan J made the following expression:
“[48] In treating the decisions of administrative agencies with the appropriate
respect, a court is recognising the proper role of the executive within the
Constitution. In doing so a court should be careful not to attribute to
itself superior wisdom in relation to matters entrusted to other branches
of government. A court should thus give due weight to findings of fact
and policy decisions made by those with special expertise and
experience in the field. The extent to which a court should give
weight to thes e considerations will depend upon the character of the
decision itself, as well as on the identity of the decision -maker. A
decision that requires an equilibrium to be struck between a range of
competing interests or considerations and which is to be take n by a
person or institution with specific expertise in that area must be shown
respect by the courts. Often a power will identify a goal to be achieved,
but will not dictate which route should be followed to achieve that
goal. In such circumstances a court should pay due respect to the route
selected by the decision-maker. This does not mean however that where
the decision is one which will not reasonably result in the achievement
of the goal, or which is not reasonably supported on the facts or not
reasonable in the light of the reasons given for it, a court may not review
that decision. A court should not rubber -stamp an unreasonable
decision simply because of the complexity of the decision or the identity
of the decision-maker.”
[41] Hoexter29 observes as follows:
“Sort of deference we should be aspiring to in administrative law consists of
Judicial willingness to appreciate the constitutionality ordained province of
administrative agencies, to acknowledge the expertise of those agencies in
policy-laden or polycentric issues, to give their interpretations of fact and
policy-laden or polycentric issues, to give their interpretations of fact and
law due respect; and to be sensitive in general to the interests legitimately
pursued by administrative bodies and the practical and financial constrains
under which they have to operate.”
Only the police service is trained and obtained expertise in investigating
crime related facts. In the police service there is criminal record centre
in which all the information relating to the previous and pending cases is
stored. The court or magistrate cannot conduct such investigations
28 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 (4) SA 490
(CC); 2004 (7) BCLR 687 (CC) Para 48.
29 Hoexter: Administrative Law in South Africa, 2nd Edition, Page 151.
without the assistance of the police se rvice. Criminal record centre is an
investigative tool at the disposal of the police service. The Magistrate
does not have that tool.
[42] Courts have a duty to ensure that the doctrine of legality is upheld 30.
They have a duty to uphold as they are constrained by doctrine of legality.
The courts have to exercise only those powers bestowed upon them by
the law31. State functionaries, no matter how well- intentioned, may only
do what the law empowers them to do32. That is the essence of the principle
of legality, the bedrock of our constitutional dispensation, and has long
been enshrined in our law33. The rule of law does not permit an organ of
state to reach what may turn out to be a correct outcome by any means.
On the contrary, the rule of law obliges an organ of state to use the correct
legal process34. These propositions apply with greater force in the exercise
of judicial power.
[43] In conclusion on this topic, the National Prosecuting Authority Act 32 of
1998 provides for investigative directorate 35. The Prosecuting Authority,
in addition to the police service, has investigative powers exercisable by
the Investigating Directorate 36. The Prosecuting authority has its
representatives in the Ma gistrates courts, namely, Public Prosecutors.
30 Lester v Ndlambe Municipality 2014 (1) ALL SA 402 (SCA), 2015 (6) SA 283 (SCA) Para 24 and 27.
31 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) Para 15 and 28.
32 Head of Department, Department of Education, Free State Province v Welkom High School and Another;
Head of Department, Department of Education, Free State Province v Harmony High School and another
2013 (6) BCLR 989 (CC); 2014 (2) SA 228(CC) Para 1.
33 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and another 2007 (1) SA 343 (CC); 2006(11)
BCLR 1255 Para 68.
34 In Re Exparte President of the Republic of South Africa and others 2000(2) SA 674 (CC) Para 90-94; Head
of Department, Department of Education, Free State Province (Supra) Para 86.
35 Chapter 5 of National Prosecuting Authority Act 32 of 1998- Section 26-31.
36 Section 7 of National Prosecuting Authority Act 32 of 1998.
Thereanent to the facts of this matter, the Magistrate had before her the
investigating officer from the police service and the Public Prosecutor from
the Prosecuting authority, both of their offices are cha rged with
investigative duties. She however failed to engage them about her intended
decision, to trigger proper investigation.
[44] On the conspectus of all of this, I find that the Magistrate did not have any
power to investigate. As a corrollary, it was not at all justifiable for the
Magistrate to remand the plaintiff in custody for her to undertake the
functions of investigating plaintiff’s pending cases and previous
convictions. It is trite that Magistrate’s Court are creatures of statute. As
such, they have no inherent jurisdiction and their powers must be deduced
from the four corners of statute 37. Magistrate’s Court Act 32 of 1944, as
amended and the Magistrate’s Court Rules are sources of power of the
Magistrates and Magistrate’s court. Both these two instruments are giving
effect to section 165(1) of the Constitution. In addition to the Magistrates
Court Act and the Rules, the Criminal Procedure Act 51 of 1977 as
amended, does not confer investigative powers upon the Magistrate’s or
Magistrates’ court. In my view, Magistrates conduct as stated above, was
not only arbitrary but was also unlawful.
First Defendant’s Liability
[45] I have found that, Magistrate’s conduct was arbitrary and was without just
cause. Her conduct was in direct violation of section 12(1)(a) of the
Constitution. It is by now well established in our Constitutional
37 Kondlo v Eastern Cape Development Corporation 2014(2) ALL SA 328 (ECM) Para 39.
jurisprudence that the right not to be depri ved of freedom arbitrary or
without just cause affords both substantive and procedural protection
against such deprivation38.
[46] In Cotzee39 O’rgan dealt with two aspects of freedom, namely the
substantive and procedural components in this fashion:
“[159] These are separate questions. They raise two different aspects of
freedom: the first is concerned particularly with the reasons for which
the state may deprive someone of freedom; and the second is concerned
with the manner whereby a person is deprived of freedom. As I stated
in Bernstein and Others v Bester and Others NNO [1996] ZACC
2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at paragraphs 145-
7, our Constitution recognises that both aspects a re important in a
democracy: the state may not deprive its citizens of liberty for reasons
that are not acceptable, nor, when it deprives citizens of freedom for
acceptable reasons, may it do so in a manner which is procedurally
unfair. The two issues are related, but a constitutional finding that the
reason for which the state wishes to deprive a person of his or her
freedom is acceptable, does not dispense with the question of whether
the procedure followed to deprive a person of liberty is fair. With
respect, therefore, I cannot agree with Kentridge AJ when he states at
paragraph 93 of his judgment:
“In brief, if an offence of absolute liability had been created, it
would not in itself have given rise to any question of the
unfairness of the trial of such an offence. Where the severity of
such a provision has been mitigated by allowing the accused to
prove a special defence it is in my view illogical if not perverse
to say that this destroys the fairness of the trial.”
[47] The two components of fre edom referred to above must co -exist. They
must occur conjunctively. I have stated above that both the reasons
(investigation) and the procedure led to the detention of the plaintiff are
(investigation) and the procedure led to the detention of the plaintiff are
unacceptable. I will hereafter deal with procedure in more detail.
38 ZEALAND V Minister for Justice and Constitutional Development and another 2008 (2) SACR 1 (CC) Para
33.
39 S v Coetzee and others [1997] ZACC2; 1997 (3) SA 527 SA Para 159.
[48] While the reasons for plaintiff’s detention was for the Magistrate to
investigate plaintiff’s pending cases and previous convictions, the
procedure that was followed was fatally flawed. The Magistrate is on
record to say it was enough that she heard t hat the plaintiff had previous
convictions, she did not talk further to the plaintiff, but resorted to remand
him in custody. That approach was unequivocally flawed as I will
demonstrate hereinafter.
[49] The plaintiff was lawfully released on bail in court on 04th April 2022, and
warned to appear in court on 04th April 2022, which he did. On 04th April
2022, when the plaintiff was appearing in court, was a freeman. He was
enjoying his right to freedom and liberty. The Magistrate failed dismally
to observe one element of Rules of natural justice, to wit, audi alteram
partem rule, which requires that a person against whom an adverse
decision will be taken must be heard. No invitation or whatsoever was
made to the plaintiff to make representations or show cause why he should
not be remanded in custody when he was clearly out on bail as evidenced
by his bail bond, evidencing his enjoyment of his right to freedom and
liberty. Infact, according to Magistrates evidence in chief, nothing was said
to the plaintiff about his bail.
[50] The Magistrate talked about the cancellation of bail during cross -
examination in this court when her attention was brought to the
manuscripts exhibited in the charge sheet. The plaintiff was never given a
hearing prior the Magistrate’s decision to remand him in custody. There is
no way that a person’s right may be interfered with without that person
being engaged or given a hearing. That procedure was clearly flawed. To
make matters worse, no explanation was made by the Magi strate for such
failure.
[51] On 13th April 2022 the plaintiff was released from custody and, according
to the plaintiff, on that date charges were withdrawn. This version was
never disputed when the plaintiff was still in the witness box. It will be
unfair not to accept it 40. The Magistrate herself expressely testified that
there was no formal bail application. She stated that she was only addressed
by Mr Mene, plaintiff’s legal representative in court. She said it is as a
result of that address that the plaintiff was released. In the alleged address
nothing seemingly related to the reason for plaintiff’s detention on 04 th
April 2022. The Magistrate was allegedly addressed on different issues
relating to plaintiff’s address (place of abode); that the plai ntiff would
attend trial and then requested that the plaintiff be released on warning.
What boggles one’s mind is the fact that, what seemingly was the reason
or purpose of the plaintiff’s detention was never talked about again after
his detention. Nothing suggests that such reason or purpose was followed
through or pursued by the Magistrate. The question is, why was the
plaintiff detained on 04th April 2022? The alleged reason was only a ruse
to mete out malice to the plaintiff.
[52] While absence of one of the two component of liberty is enough for a
finding of unlawful and arbitrary deprivation of liberty, it is also clear that
both components of liberty are absence. Reverting to the second
component of liberty, which is the procedu ral component; it was
peremptory for the Magistrate to engage the parties, especially the plaintiff
about his remand in custody, whilst he was out on bail. Hereinafter I deal
with the worst situation of an arrested and detained person, to justify a point
40 Small v Smith 1954 (3) SA 434 (SWA) at 438.
that the Magistrate was enjoined to engage the parties in court when she
wanted to order the detention of the plaintiff.
[53] Section 35(1) (e-f) of the Constitution provides thus:
“Everyone who is arrested for allegedly committing an offence has the right-
…..
(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.”
In dealing with these provisions, the Supreme Court of Appeal in De
Klerk41held that:
“[14] It is well established that the purpose of arrest is to bring the suspect to
court for trial. I agree with what Harms DP said in Sekhoto, that the
arresting peace officer has a limited role in the process that takes place
in court. In my view presiding officers in courts of first appearance must
ensure that the rights in s35(1) (e-f) of the Constitution are not
undermined. It is imperative for a presiding officer to enquire from the
prosecution why it is necessary to further detain a suspect. In that
enquiry the reasons for further detention will emerge as to whether or
not it is in the interests of justice to further detain or release the suspect.
This I say, mindful of the provisions of s 12(1) of the Constitution which
deals with freedom and security of the person and the right not to be
deprived of freedom arbitrarily or without just cause. Failure to enquire
at the first appearan ce of the reasons for further detention is clearly a
contravention of the above constitutional imperatives and therefore the
further detention of a suspect without just cause would be arbitrary and
unlawful. In my view the police cannot be held liable for the further
detention, even if the arrest is found to have been unlawful. What is
critical is that, the justice department would be responsible and liable
for the further detention because of its failure to observe the
for the further detention because of its failure to observe the
constitutional rights of a detained person.”
[54] The dictum in De Klerk, although it was made in the context of an accused
person brought before court by means of an arrest, it applies with more or
greater force in the circumstances of this case, where the plaintiff attended
41 De Klerk v Minister of Police 2018 (2) ALL SA 597 (SCA) 2018 (2) SACR 28 (SCA) Para 14.
court as a free man. This dictum fortifies my earlier point that there was no
justification at all for the Magistrate not to have engaged the plaintiff, the
Prosecutor and or the investigating officer (police) about her intentions.
There should have at least been that engagement of the relevant parties in
court.
[55] What is worse, the Magistrate, on her own accord and volition ordered the
detention of the plaintiff without any application having been made by the
state. She did not even ask if the state agrees to the detention of the plaintiff.
That highly manifested highhandedness on the part of the Magistrate,
which amounted to unreasonable and arrogant use of Judicial Authority,
ignoring the rights, roles and opinions of other role players in the court
room. The inconsiderate and tactless manner characterized by haughtiness
conduced to a quality of malice and mala fides. A wanton disregard of
litigant’s rights, and roles of other role players in court should be taken into
account when a decision uplifting or pierci ng judiciary immunity is to be
taken.
[56] To expand and demonstrate this attitude; the Magistrate, according to her
own version remanded the plaintiff in custody because she wanted to
satisfy herself, which satisfaction was found to be about the plaintif f
pending cases or previous convictions. She did not postpone the matter to
afford the plaintiff an opportunity to make bail application. Infact, on the
04th April 2022, no opportunity was afforded to the plaintiff to make bail
application in the light of the fact that the first one was unilaterally and
surreptitiously cancelled. The plaintiff was remanded in custody with no
hope of when and how he would be released. Most importantly no rights
appear to have been announced to the plaintiff by the court. The plaintiff
was not apprised of his constitutional rights. After the Magistrate had
resolved to cancel plaintiff’s bail and knew of her intention to remand the
plaintiff in custody, she should have advised the plaintiff of his
constitutional rights42. It is so because the Magistrate unilaterally changed
the status of the plaintiff to that of a detained person. The Magistrate’s
failure was an affront to section 35(2) of the Constitution. This leaves one
with a singular impression that the order directing t he detention of the
plaintiff was made with an ulterior motive.
[57] In the previous paragraph I stated that the plaintiff’s bail was
surreptitiously cancelled. I said so because during the proceedings on 04 th
April 2022, nothing was said about the plaintiff’s bail, let alone
cancellation thereof. The plaintiff went to cus tody without knowing what
had happened with his bail. The decision to remand the plaintiff in custody
was taken by the Magistrate in bad faith. It is so because such an egregious
decision was not explained to this court during these proceedings. That
again was a manifestation of highhandedness.
[58] The remark made in obiter in De Klerk43 that
“What is critical is that, the justice department would be responsible and liable
for the further detention because of its failure to observe the constitutional
rights of a detained person”
was built and rooted in the ratio of Zealand44 where the Minister of Justice
and Constitutional Development was vicariously found liable for the
Magistrate’s unlawful decision which violated Mr Zealand Constitutional
42 Section 35(2) of the Constitution.
43 De Klerk v Minister of Police 2018 (2) ALL SA 597 SCA; 2018 (2) SACR 28 (SCA) Para 14.
44 Zealand v Minister for Justice and Constitutional Development and another 2008(2) SACR (1) (CC) Para
46-49.
right45 to freedom and security, of which he was deprived arbitrarily and
without just cause. Magistrate’s conduct arbitrarily and grossly violating
accused right to freedom and security which was without just cause
attracted liability.
[59] In the amalgam of all this I conclude that the Magistrate acted with malice
and ulterior motive . She was mala fide and also acted in bad faith. Her
actions grossly violated plaintiff’s constitutional right to freedom and
security. The plaintiff was deprived of his freedom arbitrarily and without
cause. The time now has come for the highhandedness i n the Magistrates
courts to frontally be dealt with. The indignity 46 with which accused
persons or litigants are dealt with in those courts must be condemned in
strongest terms possible in our democratic state founded on human dignity,
the achievement of equality and advancement of human rights and
freedom47. If violation of person’s dignity occurs arbitrarily and without
any cause, as in this case, it must follow that such egregious conduct is
malicious and undertaken in bad faith. The right to liberty an d right to
human dignity are inseparable and interlinked. In Du Plessis48 NAVSA
ADJP held thus:
“[15] Our new Constitutional Order, conscious of our oppressive past, was
designed to curb intrusions upon personal liberty which has always,
even during the dark days of apartheid, been judicially valued, and to
ensure that the excesses of the past would not recur. The right to
liberty is inextricably linked to human dignity . Section 1 of the
Constitution proclaims as founding values, human dignity, the
achievement of equality and the advancement of human rights and
freedoms. Put simply, we as a society place a premium on the right to
liberty.”
45 Section 12(1)(a) of the Constitution.
46 Section 10 of the Constitution.
47 Section 1 of the Constitution.
48 Minister of Police v Du Plesiss 2014 (1) SACR 217 (SCA) Para 15
------------------------------------
Wanton disregard of rights and unjustifiable infringement of right to liberty
and human dignity by the court is, as a corrollary malicious and also
amounts to an abuse of judicial power. That conduct is a relevant
consideration for the upliftment and piercing of judicial immunity enjoyed
by judicial officers.
[60] Sight should not be lost of the fact that the Magistrate, as part of the
judiciary, should account for the decisions she makes 49. The Magistrate
should fully explain the facts that gave rise to their decision 50. If that is
required of the public servants and government officials generally, that
applies with greater force with the members of the judiciary. In Kalil
No51Leach JA had the following to say in the context of the legality of the
Municipality’s decisions:
“[30] That having been said, the manner in which the Municipality
approached the appellants’ application militates against a costs order
in its favour. This is public interest litigation in the sense that it
examines the lawfulness of the exercise by publ ic officials of the
obligations imposed upon them by the Constitution and
national legislation. The function of public servants and government
officials at national, provincial and municipal levels is to serve the
public, and the community at large has t he right to insist upon them
acting lawfully and within the bounds of their authority. Thus where,
as here, the legality of their actions is at stake, it is crucial for public
servants to neither be coy nor to play fast and loose with the truth. On
the contrary, it is their duty to take the court into their confidence and
fully explain the facts so that an informed decision can be taken in the
interests of the public and good governance. As this court stressed
in Gauteng Gambling Board and another v MEC for Economic
Development, Gauteng, our present constitutional order imposes a
duty upon state officials not to frustrate the enforcement by courts of
constitutional rights.”
constitutional rights.”
49 Macingwane v S (CA&R20/18) [2019] ZAECCMHC 96 (20 November 2019) Para 39.
50 S v Van Der Meyden 1999 (1) SACR 447 (W); 1999 (2) SA 79 at 449J - 450C.
51 Kalil No and others v Mangaung Municipality and others 2014(3) ALL SA 291 (SCA), 2014 (5) SA
123 (SCA) Para 30.
[61] The Magistrate, both in the pleadings and in evidence does not
satisfactorily explain or provide congent reasons for her decision depriving
the plaintiff of his liberty and freedom which quintessentially infringed
plaintiff’s right to human dignity. She failed to take this court into her
confidence and explain the facts giving rise to her decision to deprive the
plaintiff of his liberty and freedom. I am therefore unable to know or see if
the Magistrate was acting bona fide and in the honest discharge of her
duty52. Decisions made in bad faith are unlawful and can give rise t o
damages claim53.
[62] The enforcement of section 10 and section 12(1) rights accords with the
fundamental maxim ubi jus, ibi remeduim (where there is a right, there is
a remedy)54. It admits of no doubt that the plaintiff is the bearer of the
aforesaid rights, and that such rights were infringed by the conduct of
Magistrate. In Harris55 Centlivers CJ held that:
“There can to my mind be no doubt that the authors of the Constitution
intended that those rights [that is the rights entrenched in the Constitution]
should be enforceable by the court of law. They could never have intended to
confer a right without a remedy. The remedy is indeed, part and parcel of the
right. Ubi jus , ibi remedium.”
Even international authorities are not silent about enforcement of rights.
In Ashby56 Holt CJ stated:
“If a plaintiff has a right he must of necessity have a means to vindicate and
maintain it, and a remedy, if he is injured in the exercise or enjoyment of it;
and indeed it is vain thing to imagine a right without a remedy; for want of
right and want of remedy are reciprocal."
52 Mathews and others v Young 1922 AD 492 at 509-510.
53 Telematrix (Pty) Ltd v Advertising Standard Authority SA 2006 (1) ALL SA 6 (SCA); 2006 (1) SA 461 (SCA)
Para 26.
54 Masemola v Special Pensions Appeal Board and another 2019 (12) BCLR 1520; 2020 (2) SA (1) (CC) Para
51.
51.
55 Minister of the Interior v Harris 1952 (4) SA 769 (A) at 780H- 781B.
56 Ashby v While [1790] EngR 55; [1703] 92 ER 126 at 136.
[63] The Constitutional Court still concerned in Kirland57 about the
infringement of human rights held that:
“82. All this indicates that this Court should not decide the validity of
the approval. This would be in accordance with the principle of legality
and also, if applicable, the provisions of P AJA. P AJA requires that the
government respondents should have applied to set aside the approval,
by way of formal counter -application. They must do the same even if
P AJA does not apply. To demand this of government is not to stymie it by
forcing upon it a senseless formality. It is to insist on due process, from
which there is no reason to exempt government. On the contrary,
there is a higher duty on the state to respect the law, to fulfil procedural
requirements and to tread respectfully when dealing with rights.
Government is not an indigent or bewildered litigant, adrift on a sea of
litigious uncertainty, to whom the courts must extend a procedure -
circumventing lifeline. It is the Constitution’ s primary agent. It must do
right, and it must do it properly.”
It is without a doubt that the Magistrate did not do things in accordance
with the law, the procedural requirements w ere not fulfilled when the
plaintiff was remanded in custody; and that she obviously did not tread
carefully and respectfully when plaintiff’s rights in terms of section 10 and
section 12(1) of the Constitution were violated. I reiterate that there is no
congent explanation and justification for all these transgressions.
Magistrate’s conduct is inexcusable. With her experience, she should have
done better.
[64] It is not in dispute that the Magistrate, when remanding the plaintiff in
custody, was acting within the course and scope of her employment with
the first defendant’s Department, to wit , Department of Justice and
Constitutional Development 58. In the circumstances I find the first
defendant, the Minister of Justice and Constitutional Development l iable
defendant, the Minister of Justice and Constitutional Development l iable
for all the damages arising out of the Magistrate’s conduct resulted in
57 MEC for Health Eastern Cape and another v Kirland Investments (Pty) Ltd 2014 (5) BCLR 547 (CC); 2014
(3) SA 481 (CC) Para 82
58 Section 2 of State Liability Act 20 of 1957 as amended
plaintiff’s deprivation of liberty between 04 th April 2022 and 13 th April
2022.
Quantum
[65] Plaintiff’s deprivation of liberty at the instance of the Magistrate occurred
from 04th April 2022 until 13 April 2022. When the plaintiff was released
from custody his detention was for nine (9) days. Alternatively, he spent
nine (9) nights in the prison cells. Plaintiff’s rights to freedom or liberty
and human dignity wer e unjustifiably violated. The detention constitutes
an in -road into the freedom and the right to human dignity of an
individual59.
[66] Section 12 deals with freedom and security of the person. Importantly it
provides as follows in relevant parts:
“Everyone has the right to freedom and security of the person, which includes
the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
………
(2) Everyone has the right to bodily and psychological integrity…….”
Section 10 deals with dignity as follows:
“Everyone has inherent dignity and the right to have their dignity respected and
protected”.
59 Thandani v Minister of Law and Order 1991 (4) SA 904 (A).
[67] In Diljan60Makaula AJA had the following to say:
“[18] The acceptable method of assessing damages includes the evaluation of
the plaintiff’ s personal circumstances; the manner of the arrest; the
duration of the detention; the degree of humiliation which encompasses
the aggrieved party’ s reputation and standing in the community;
deprivation of liberty; and other relevant factors peculiar to the case
under consideration.
[19] Whilst, as a general rule, regard may be had to previous awards, sight
should, however, not be lost of the fact that previous awards only serve
as a guide and nothing more. As Potgieter JA cautioned in Protea
Assurance Co. Ltd v Lamb:
‘It should be emphasised, however, that this process of
comparison does not take the form of a meticulous examination
of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to dominate
the enquiry as to become a fetter upon the Court’ s general
discretion in such matters. Comparable cases, when available,
should rather be used to afford some guidance, in a general way,
towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous awards in
broadly similar cases, regard being had to all the factors which
are considered to be relevant in the assessment of general
damages. At the same time, it may be permissible, in an
appropriate case, to test any assessment arrived at upon this
basis by reference to the gene ral pattern of previous awards in
cases where the injuries and their sequelae may have been either
more serious or less than those in the case under consideration.”
[68] In Tyulu61 the Supreme Court of Appeal held:
“[26] In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich the
aggrieved party but to offer him or her some much-needed solatium for
his or her injured feelings. It is therefore crucial that serious attempts
his or her injured feelings. It is therefore crucial that serious attempts
be made to ensure that the damages awarded are commensurate with
the injury inflicted. However, our courts should be astute to ensure that
the awards they make for such infractions reflect the importance of the
right to perso nal liberty and the seriousness with which any arbitrary
deprivation of personal liberty is viewed in our law. I readily concede
that it is impossible to determine an award of damages for this kind of
injuria with any kind of mathematical accuracy. Althoug h it is always
helpful to have regard to awards made in previous cases to serve as a
60 Diljan v Minister of Police (746/2021) [2022] ZSCA 103 (24 June 2022) 22 JDR 1759 SCA Para 18-19.
61 Minister of Safety and Security v Tyulu 2009 (5) SA 58 (SCA); 2009 (2) SCAR 282 (SCA); 2009 (4) ALL SA
38 Para 26.
guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damages on such
facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)
325 para 17; Rudolph & others v Minister of Safety and Security &
others (380/2008) [2009] ZASCA 39 (31 March 2009) (paras 26-29).”
[69] The plaintiff is a major unemployed male62 born on 26th August 1981. He
describes the conditions at Wellington Prison, where he was detained, in
Paragraph 7 of his amended particulars of claim as follows:
“7.1 The conditions under which the plaintiff was detained at
Wellington Prison were poor.
7.2 At Wellington Prison plaintiff was detained amongst
gangsters, the cells were dirty, filthy, and had a very bad smell and even
toilets were not in working condition.
7.3 It is the plaintiff’ s assertion that before he used the toilet he
had to sing first and that he slept on a rough old tiny blanket
without matrass.
7.4 Plaintiff could not bath himself in prison as there was no
water to shower.
7.5 It is the plaintiff assertion that the food at Wellington Prison
was of a poor quality.
7.6 Plaintiff was trained for a period of ten days at the instance
of the presiding officer.
7.8 The plaintiff’ s constitutional right to liberty and freedom was
grossly violated” (sic).
[70] In evidence the plaintiff testified that he w as assaulted by other inmates
and his food was taken as he did not belong to any prison group as he said
he “had no number”. Assault and torture are manifest in the conditions the
62 At the time of institution of these proceedings he was employed as a taxi driver .
plaintiff experienced in custody. I take into account the fact that the
Magistrate testified that he has twelve (12) years as the magistrate.
[71] In Diljan the Supreme Court of Appeal awarded R120 000.00 as fair and
reasonable amount for appellant’s deprivation of liberty for three (3) days.
When dividing that amount by three (3) days, one gets R40 000.00. In
Madyibi63 an amount of R35 000.00 was awarded for twenty (20) hours
detention. In Ncume64 this c ourt awarded R45 000.00 as fair and
reasonable compensation for arrest and detention for approximately
eighteen (18) hours. Taking into account the circumstances and conditions
of plaintiff’s detention or deprivation of liberty, I am satisfied that the first
defendant is liable to the plaintiff in the amount of R360 000.00 as fair and
reasonable compensation for deprivation of liberty for approximately nine
(9) days. Costs should therefore follow the results as there is no
justification for the deviation from the general rule.
Order
[72] In the result I would make the following order:
1. The first defendant is liable for damages suffered by the plaintiff
as a result of deprivation of liberty spanning from 04 th April
2022 to 13th April 2022.
2. The first defendant is hereby ordered to pay to the plaintiff an
amount of R360 000.00 ( Three Hundred and Sixty Thousand
63 Nel v Minister of Police (Case No CA 62/2017) [2028] ZAECGHC
64 Andile Ncume v Minister of Police (Case No 3219/2021) Eastern Cape, Mthatha
Rand) as and for damages suffered by the plaintiff as a result of
deprivation of liberty referred to in paragraph 65.1 above.
3. The first defendant shall pay interest on the capital amount at
the prescribed legal rate calculated from the date of this
judgment to the date of final payment.
4. The first defendant shall pay costs of suit on a party and party
scale.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Plaintiff :Adv Mbiko
Instructed by :MK MAJA VU & ASSOCIATES
Cathedral Building
27 Victoria Street
Mthatha
Tel: 071 032 9278/ 065 076 1502
Ref: MKM/LMBN226/22/CVL
Email: majavukenny@gmail.com
For the Defendants :Adv Nabela
Instructed by : THE STATE ATTORNEY
Broadcast House
94 Sission Street
Fortgale
Mthatha
Tel: 047 501 9900
Ref: 1196/22-A8N
Matter heard on : 10-11 September 2025
Delivered on : 21 October 2025