SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Reportable
Case no.: 14100/2021
In the matter between:
L[...] B[...] First Plaintiff
T[...] C[...] Second Plaintiff
F[...] L[...] B[...] Third Plaintiff
and
MINISTER OF POLICE First Defendant
SOUTH AFRICAN POLICE SERVICES Second Defendant
Coram: Pangarker J
Hearing dates: 29, 30 and 31 July 2024; 8 August 2024; 2 and 17 September 2024;
5 and 6 November 2024; 25 November 2024; 19 June 2025; 20 August 2025
Judgment delivered: 30 June 2026
Summary: Unlawful arrest and detention – Plaintiffs allege that they suffered
damages suffered as result of their unlawful arrest and detention by the police in
early May 2020 for breach of lockdown level 4 regulations during the national state of
disaster (implemented as a result of the coronavirus pandemic) – Plaintiffs entered a
beach to remove their minor daughter who , unknown to them, entered the beach -
Beaches were prohibited areas in terms of the regulations to the Disaster
Management Act 57 of 2002 – Defendants plead that in terms of regulation 24 read
with Regulation 31(2) , being on/in a prohibited area was an offence punishable by
law – Defendants also rely on s ection 40(1)(a) of the Criminal Procedure Act 51 of
1977 in that the peace officer was entitled to arrest the plaintiffs without a warrant as
the offence was committed in his presence – Consideration of regulations ; whether
defendants proved that the arrest and detention were lawful ; discussion regarding
commission of an offence versus guilt; and, whether the police officer acted
irrationally when exercising the discretion to arrest.
Malicious and wrongful legal proceedings - Plaintiffs plead that the police
unlawfully and maliciously charged and processed them, had no reasonable and
probable cause for doing so and as a result of such actions, they were prosecuted –
Plaintiffs were compelled to employ the services of an attorney for the criminal
matter – Prosecutor withdrew the charges – Issue: whether, on the evidence, the
plaintiffs discharged the onus of proving the elements of claims based on malicious
and wrongful proceedings.
Breach of constitutional rights - In view of the lockdown regulations, were the
arrests and detention of the plaintiffs necessary, and were their constitutional rights
arrests and detention of the plaintiffs necessary, and were their constitutional rights
to dignity infringed because of the police’s actions? – Defendants’ view is that the
police were constitutionally mandated in terms of section 205 of the Constitution to
uphold and enforce the law – Police mandated to assist the Government to combat
the spread of the coronavirus – Whether the plaintiffs proved a breach of their
constitutional rights to dignity as provided for in section 10 of the Constitution.
ORDER
The plaintiffs’ claims (claims A and B) are dismissed with costs, including the costs of
counsel on scale B.
JUDGMENT
___________________________________________________________________
PANGARKER J
Introduction
[1] In early May 2020, South Africa was in the midst of the COVID -19 pandemic1.
Severe restrictions were placed on citizens in respect of movement, contact , and
social and economic interaction on a level never before experienced. The country
faced a national lockdown to curb the spread of the coronavirus.
[2] Less than two months earlier, on 15 March 2020, the Minister for Co-operative
Governance and Traditional Affairs (the Min ister), had declared a national state of
disaster in terms of the Disaster Management Act 57 of 2002 (the Act) following the
declaration by the head of the National Disaster Management Centre (NDMC) that
the pandemic was classified as a disaster. It is well documented that the
Government's aim was to prevent and curtail the spread of the deadly coronavirus.
1 Also referred to the coronavirus
[3] Consequently, the Minister issued regulations in terms of the Act w ith the aim
of managing and reducing the risk of infection amongst all citizens. On 24 March
2020, President Cyril Ramaphosa announced that the National Coronavirus
Command Council (NCCC) had decided upon a national lockdown for 21 days,
commencing from 26 March to 16 April 2020. It is common knowledge that the
lockdown was later extended to 30 April 2020 and historically, throughout the period
of the state of disaster, there were extensions and adjustments to the lockdown or
alert levels and the relevant regulations.
[4] On 1 May 2020, South Africa moved from alert level 5 to alert level 4, which
had the effect that some h ard lockdown restrictions were slightly relaxed. With this
historical context in mind , I turn to the case at hand , which revolves around an
incident which occurred on 4 May 2020 , during alert level 4 restrictions, on
Muizenberg Beach (the incident).
The parties
[5] The first and second plaintiffs, L[...] B[...] (B[...]) and T[...] C[...] (C[...]) are the
biological parents of the third plaintiff, a minor girl F[...] L[...] B[...], hereafter referred
to as “the child” or “their daughter”. She was one year and nine months old at the
time of the incident which led to the institution of the plaintiffs’ civil action which forms
the subject of this judgment. The defendants are the Minister of Police and the South
African Police Services (SAPS) respectively, who defend the plaintiffs’ action. No
relief is sought against the second defendant.
[6] B[...] and C[...] are collectively referred to as “the plaintiffs” . They were the
only witnesses in respect of the action instituted under the above case number.
Brigadier Colonel Vassie Naidoo (Naidoo) was the only witness for the defendants.
C[...] testified v ia audio visual link from the Czech Republic , where she resides
permanently. Similarly, Naidoo, who lives in KwaZulu Natal, also testified virtually
permanently. Similarly, Naidoo, who lives in KwaZulu Natal, also testified virtually
during the trial. For ease and intending no disrespect to the witnesses and other role
players who featured in the trial, they are referred to by their surnames. The trial
proceeded on merits and quantum.
The plaintiffs’ pleaded case: Particulars of Claim
[7] The Summons was issued on 19 August 2021 pursuant to the plaintiffs ’
notices in terms of section 3 of the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002. The plaintiffs plead th at on 4 May 2020 , at
approximately 08h25, they were walking along the boardwalk of Mu izenberg Beach
in compliance with regulation 16 (2)(f) issued in terms of section 27 (2) of the Act.
While walking, the third plaintiff, their 21-month-old daughter, unexpectedly ran from
the boardwalk onto the beach. She had moved two metres onto the beach. The
plaintiffs momentarily and as far as was strictly necessary , walked onto the beach to
remove her, picked her up and then returned to the boardwalk immediately.
[8] The plaintiffs instituted two claims against the defendants which are
summarised below. Claim A is for damages arising from their unlawful arrest and
detention, and breach of the ir constitutional rights . The plaintiffs plead that police
officers witnessed the incident but d espite this, two police officers wrongfully and
unlawfully arrested them for contravening the regulations. The arresting officers
placed B[...] in the back of a police vehicle along with other detainees . The police did
not wear suitable masks and did not ensure that the other detainees were wearing
suitable masks. B[...] was transported to Muizenberg police station in the police van
and C[...] and their daughter were transported in a separate police vehicle.
[9] The plaintiffs plead further that because of the above failures by the police
officers, B[...] as well as C[...] and their daughter, were placed at high risk of
contracting the coronavirus. On arrival at the police station, the plaintiffs were
detained for six hours at the insistence of police officers, including Naidoo, and along
with other members of the public, w ere all detained in a confined area in the police
with other members of the public, w ere all detained in a confined area in the police
station. As a result of such detention and because these officers were not wearing
suitable masks while interacting with and processing the plaintiffs, therefore the latter
were placed at high risk of contracting the virus.
[10] The plaintiffs plead that the actions of the police officers and Naid oo
amounted to a wrongful and unlawful violation of their constitutional rights to dignity
as provided for in section 10 of the Constitution of South Africa , and that this
constituted an unlawful and wrongful injury to them. Furthermore, they were
humiliated, degraded and left fearful because of the police officers’ conduct.
[11] As a consequence of the unlawful arrest and detention and breach of the ir
constitutional rights, the plaintiffs plead that they suffered damages tota lling
R537 3002, which is calculated as follows:
Past medical expenses
Psychology sessions R4 500
Psychiatry sessions R3 800
Family counselling and mediation sessions R2 600
Medication R2 400
Future medical expenses
Medication (R400 p/m for 5 years) R24 000
General/constitutional damages
Pain and suffering, violation of
constitutional rights R500 000
[12] In respect of Claim B, malicious and wrongful legal proceedings, the
plaintiffs plead that Naidoo unlawfully and maliciously processed and charged them
for contravening the lockdown regulations. When processing and charging the
plaintiffs, the police officers had no reasonable or probable cause for doing so, nor a
2 Claim A
reasonable belief in the truth of the information relied upon by the m. The police
officers, including Naidoo, were acting in the course and scope of the ir employment
with the second defendant in processing and laying the charge against the plaintiffs.
[13] As a result, they were required to appear at the Mu izenberg Magistrates’
Court and were compelled to employ the services of an attorney to represent and
defend them. The plaintiffs plead that on 26 May 2020, the State withdrew the
charge(s) against them based on a lack of evidence of contravention of the
regulations and/or that they had a valid defence to the charge.
[14] Furthermore, in April and May 2020, Naidoo and various police officers
intimidated and harassed the plaintiffs by persistently driving the ir vehicles past the
plaintiffs’ and B[...]’s parents’ residences; parking the ir vehicles outside the
aforementioned residences and visiting the p laintiffs and B[...]’s parents’ residences
in order to question them despite being informed that the plaintiffs did not wish to
speak to them.
[15] The actions of Na idoo and the other police officers constitute a wrongful an
unlawful violation of the plaintiffs’ constitutional rights to dignity, freedom and security
of person, as well as privacy, as set out in sections 8, 10 and 12 of the Constitution .
It thus amounts to an unlawful and wrongful injury to the plaintiffs. The plaintiffs felt
intimidated, degraded and were fearful because of the conduct of the police.
[16] The plaintiffs plead that they suffered damages because of the malicious and
wrongful proceedings and breach of constitutional rights in the sum of R531 655, 643
as follows:
Costs incurred in employing an attorney R31 655,64
Breach of constitutional rights R500 000
3 Claim B
The defence: the Plea
[17] The defendants admit the date, time and place of the incident. However, they
plead that the plaintiffs were not walking along the boardwalk alongside the beach
but were found seated on the beach 200 metres away, playing with their daughter.
Despite their knowledge of regulation 16(2)(f) which prohibited anyone from being on
a beach, the plaintiffs failed to comply with the regulation and level 4 lockdown
restrictions.
[18] Furthermore, the defendants deny the plaintiffs’ version that their daughter ran
from the boardwalk onto the beach. They plead that as there was a half metre drop
from the boardwalk onto the beach, it was unlikely that the 21-month-old child could
have run approximately 2 metres from the boardwalk to the sand without injuring
herself. They also question that she was able to unexpectedly run 2 metres without
B[...] gaining control of her. The defendants plead that there was no justification why
C[...] was on the beach when B[...] could easily have taken control of their daughter.
They persist that the plaintiffs were playing in the sand.
[19] The defendants rely on regulation 16(2)(f) read with 24(2)(a) and 31 in that:
citizens could leave their residences between 06h00 and 09h00 to run, walk or c ycle
within a 5 kilometre radius of their residence 4; the use of beaches was prohibited 5;
and, a criminal sanction applied where these regulations were contravened6.
[20] The defendants plead further that on 4 May 2020, from 06h00, t he police
conducted a high-density visible patrol in the area after receiving several complaints
from the public that people were running on the beach. During these patrols, Naidoo
and his colleague, Captain Claassen (Claassen) noticed the plaintiffs sitting on the
4 Regulation 16(2)(f)
5 Regulation 24(1) and (2)
6 Regulation 31(2)
beach with the child who was playing in the sand . They were positioned
approximately 200 metres away from the boardwalk.
[21] The police officers approached the plaintiffs and informed them that they were
contravening the regulations and afforded them an opportunity to provide reasons for
the contravention 7. However, no r easons were forthcoming. B[...] became
argumentative and was subsequently cautioned by Naid oo that his conduct was
tantamount to resisting arrest and could lead to additional charges. B[...] and C[...]
were arrested for contravening the regulations.
[22] The defendants also plead that section 205 of the Constitution imposes a duty
on the police to prevent, combat and investigate crime; to maintain public order; to
protect and secure the public in their property and to uphold and enforce the law.
They deny that the p laintiffs’ arrest and detention were wrongful and unlawful , and
plead that the SAPS members had acted within the ambit of the regulations and in
terms of their constitutional obligations.
[23] The defendants furthermore deny that B[...] was placed in the police v an
along with other members of the public. They plead that B[...] was the only person
seated at the back of the police van and transported to Muizenberg police station
while the second and third plaintiffs were transported in a marked police vehicle. The
child was held by her mother while being breastfed.
[24] Furthermore, the defendants deny breaching the plaintiffs’ constitutional
rights. They plead that at all material times , SAPS members wore suitable masks
while transporting the plaintiffs , processing them a nd interacting with them during
their detention at the police station. They were kept in the boardroom with their child
and not more than six people were in the boardroom at the same time. The
defendants adhered to social dist ancing protocol and wore suitable masks when
dealing with the public and the plaintiffs.
dealing with the public and the plaintiffs.
7 The evidence is that the police spoke to the plaintiffs from their position on the boardwalk and did
not themselves enter the beach
[25] The plaintiffs were released on a warning approximately four hours later and
issued with a SAPS 496 written notice to appear in Muizenberg Magistrates’ Court
on 6 August 2020 8. The defendants deny that the charges were withdrawn on the
basis of lack of evidence in law or fact.
[26] Furthermore, the defendants deny that the officers harassed or intimidated the
plaintiffs as alleged and plead that after their arrest, the plaintiffs caused a
newspaper article to be published where certain allegations were made against the
police. As a result, an internal investigation was conducted which necessitated the
plaintiffs to be interviewed but attempts to do so proved futile. The defendants deny
that their conduct was wrongful and an unlawful violation of the plaintiffs’
constitutional rights , and that the legal proceedings against the plaintiffs were
wrongful and malicious.
[27] Lastly, the defendants also rely on section 40(1)(a) of the Criminal
Procedure Act 51 of 1977 (CPA) which empowers a peace officer to arrest a person
who commits or attempts to commit an offence in his presence. It is pleaded that the
SAPS members at all times acted lawfully and within the ambit of their constitutional
powers, the CPA and the applicable regulations of the Disaster Management Act.
[28] The trial proceeded for several days, with witnesses extensively cross -
examined by counsel for both parties . While I have attempted to summarise the
important or material aspects of the witnesses’ testimonies , the summary is
nonetheless unavoidably lengthy. Photographs of the boardwalk, ablution block and
Muizenberg Beach were handed in during the trial as well as various document s and
a transcript of audio recordings taken by B[...] on the day of the incident.
The first plaintiff: L[...] B[...]
8 In terms of sections 39(3) and 40(2) of the Criminal Procedure Act 51 of 1977 (CPA)
[29] B[...] testified that the plaintiffs lived in an apartment in Muizenberg about
500 metres from the beach, thus, it was a 5-minute walk to the beach. On 4 May
2020, they left the ir home after 08h00 and approached the boardwalk at Surfer’s
Corner at approximately 08h25. B[...] was carrying a baby carrier on his back and
their daughter was seated in the carrier. At the time she was slightly older than one
and a half years and had started walking about six months prior.
[30] The plaintiffs walked down the boardwalk in the direction of Muizenberg’s
brightly coloured huts , which were on their left side. People were walking and
running on the boardwalk and they maintained social distancing. He noticed police
presence on the boardwalk, approximately 50 metres away. C[...] was walking 5 to 6
metres ahead of him and their daughter. Thus, they walked from the direction of the
mountain-side along the boardwalk toward the ablution block area.9
[31] Their daughter was restless and moving quite a bit in her carrier. B[...] then
removed the baby carrier from his back and placed it down on the boardwalk, in the
vicinity of the huts on his left side . He knelt and removed her from the carrier and
placed her down on the opposite side of the boardwalk 10, and then turned his
attention to the carrier near the green bin at the hut. When he turned around toward
his daughter, it was then that he noticed that she was on the beach, a bit beyond the
wooden pole railing of the steps which were slightly past the green and yellow hut 11.
He then ran after her, onto the beach and grabbed her.
[32] He knew that at the time people were not allowed on the beach. The child did
not want to listen to her father and , as he explained, “plonked” herself down and had
a temper tantrum. C[...] ran toward them while their daughter was playing in the sand
and he estimated that she reached them after about 20 seconds but admitted that it
and he estimated that she reached them after about 20 seconds but admitted that it
was a long time ago. C[...] went directly to their daughter, but the child refused to
leave the beach . The parents tried to explain to her that she could not be on the
beach, but to no avail.
9 Exhibit A, p97 and p99
10 The side closest to the beach; Point 2 on Exhibit A, p97
11 Point 3 on Exhibit A, p97
[33] B[...] testified that she was crying and refused to leave the sand , so they tried
to pacify her. B[...] tried to remove her from the beach but she was acting up . When
he turned around, he saw police officers and waved at them , informing them not to
worry. He thought that they were concerned about the crying child . He then picked
her up and returned to the boardwalk. At that stage, she was still crying.
[34] Shortly after their return to the boardwalk, C[...] started breastfeeding their
daughter to calm her down. B[...] approached the police and was then i nformed that
he should follow them to have a chat. At this stage, the plaintiffs were moving toward
the ablution block. B[...] was then ordered to enter the back of a police van and was
informed by Claassens that he was stupid, and that their daughter could die because
of the virus.
[35] Naidoo informed B[...] that he was in big trouble and should enter the van and
he was arrested . C[...] was also arrested . B[...] requested a car seat to be collected
from his apartment but this was refused . He also requested that C[...] be allowed to
walk to the police station but this request was refused. B[...] explained that he sat at
the back of the van , where he was alone . From his vantage point, he saw C[...]
speak to someone whom he assumed was a police officer.
[36] While detained at the back of the police van, B[...] uploaded a photograph to
Facebook, which he took from inside the van and described this action as a call for
help12. According to B[...], while the image depicted in the photograph is quite dark,
his testimony is that Naidoo is shown not wearing a mask. Naidoo was transported in
the van while C[...] and their daughter were transported in the police vehicle to the
police station, a few minutes away . He testified that they were not on the beach for
longer than a few minutes.
[37] During the trial, an audio recording taken at the police station was played to
[37] During the trial, an audio recording taken at the police station was played to
the Court. The recording was transcribed and submitted into evidence as Exhibit C.
B[...] admitted that while at the police station and during the processing/interview
12 Exhibit A, p47
which Naidoo conducted with the plaintiffs in a separate room, he used his cellphone
to record Naidoo and a part of the processing/questioning.
[38] Naidoo is heard instructing colleagues that anyone still walking, running, or
cycling after 09h00, should be picked up, meaning that they should be arrested. B[...]
met up with C[...] and their daughter at the police station. He testified that C[...] was
quite anxious. He noticed police officers and foot traffic in the passage at the police
station. Naidoo was not wearing the mask over his mouth but across the chin,
similarly a female officer (who took temperatures) did not wear a mask.
[39] The plaintiffs waited in the passage for a few minutes whereafter they were
instructed to enter a boardroom, which is shown in the photographs. C[...] was
breastfeeding the child all the while to comfort and pacify her . According to B[...],
C[...] was extremely anxious and stressed and he remained close to her. Naidoo ’s
conduct toward them changed when he became aware that he had uploaded
photographs to social media.
[40] B[...]’s questions as to why they were being detained were never answered .
He tried to inform Naidoo of the reasons why they were on the beach but the officer
was not interested. Naidoo enquired about C[...] and was informed that she was a
professional photographer and lived in South Africa for many years. She explained to
Naidoo that her visa would be renewed and he then informed her that they were
going to flag her visa and that it would not be renewed ; that she would have a
criminal charge pending as a result of the incident.
[41] Naidoo then left the boardroom for a short while and returned to confirm that
C[...]’s visa was flagged and that their Court appearance would be the day after her
visa was due to expire. B[...] explained to Naidoo that they were innocent but Naidoo
stated that there were criminal charges against them . B[...] pleaded with Naidoo to
stated that there were criminal charges against them . B[...] pleaded with Naidoo to
allow his parents and sister to collect the toddler but this request was also refused,
with Naidoo threatening to arrest the family members should they come to collect the
child.
[42] According to B[...], Naidoo made it clear that they faced a conviction. He also
stated that C[...] would never get a job and that their daughter would not be able to
see her grandparents. B[...] testified that C[...] was reaching breaking point and was
in a state of complete shock. They were in the room with Naidoo for approximately
two hours.
[43] B[...] and C[...] were given a document, the SAPS 496 warning to appear in
Court. They were also requested to sign the notice of section 35 rights , which they
did. As for the charge (s), B[...] testified that Naidoo indicated that it was a failure to
confine to residence, though Naidoo seemed confused about the charge.
[44] B[...] testified at length about the content of the audio recording. In summary,
B[...] stated that Naidoo made it clear that he ran the police station, that his plan was
to arrest more people and make an example of them and that he did not want any
social media attention. There was mention of a fine of R1 000 but for Naidoo it was
all about obtaining a conviction. According to B[...], Naidoo was clearly on a mission.
The recording was done at the end of the plaintiff's time in the room with Naidoo.
[45] B[...] testified that he was at times confused, anxious , fearful and concerned
about his family ’s welfare. In respect of their toddler, he explained that she was in
discomfort and that they were not allowed to receive any nappies and supplies
because his parents and family were not allowed to deliver it to the police station.
The child was in her mother's arms for the duration of the questioning.
[46] After exiting the meeting room, the plaintiffs were l ed to another room where
they waited a while. During this time, somebody came to sanitise the room. B[...] left
the room a few times to inquire whether they could leave the police station but there
was no response to his request. He estimated that they were in the second room for
about half an hour.
about half an hour.
[47] Eventually the plaintiffs left the police station and walked home. B[...] testified
that they were at the police station for approximately 3 hours. The y were very
stressed and for more than two weeks following the incident, B[...] attended to
responding to messages from family and the public, as well as social media and
local and national media interest in the matter. B[...] was not involved in any
investigation into the Muizenberg SAPS conduct nor was he made aware of the
outcome of the investigation regarding the enquiry into the Muizenberg SAPS.
[48] B[...] was referred to a Times live news article which told the plaintiff s’ story,
and he confirmed the accuracy thereof as well as that of similar articles which were
discovered by the plaintiffs for purposes of the trial .13 He was satisfied as to how he
was reflected in the various articles which formed part of the discovered documents.
[49] Attorney John Riley was appointed as the plaintiffs’ attorney to defend them in
the criminal matter, which included challenging the charges. The plaintiffs had
deposed to affidavits and a few weeks after the incident, they were advised in an
email from the attorney, that the State had withdrawn the charges against them. B[...]
confirmed that he paid the attorney’s fees for his services.14
[50] After the incident, B[...] attended counselling with Mark Emmerich, a therapist
who had referred him to psychiatrist, Dr Stastny, whom B[...] saw for two months. In
terms of B[...]’s testimony, Dr Stastny diagnosed him with post-traumatic stress
disorder ( PTSD). He paid the counsellor and psychiatrist in full. B[...] was asked
about the medical expenses claimed in the action15 and payment for attending family
counselling services.
[51] B[...] explained that his relationship with C[...] was never the same after the
incident and that they were no longer in a relationship. The incident caused stress,
anxiety, uncertainty about the future and changed the course of their family life. Prior
to the incident, he was in the fil m industry and though his work was cut short due to
the arrival of the pandemic, he was happy having time to spend with his family. After
the incident he became withdrawn, and the fear and anxiety caused by the incident,
affected their personal relationship.
13 P47-51
14 P34-36
affected their personal relationship.
13 P47-51
14 P34-36
15 Par 24, Particulars of Claim, p12
[52] Shortly after the incident, in June 2020, C[...] and their daughter took a
repatriation flight to the Czech Republic. There were no flights leaving South Africa
for a few months, so B[...] closed his local business, settled his affairs and assets
and eventually joined them in the Czech Republic in November 2020. He explained
that they separated as a couple shortly after his arrival in the Czech Republic , but
they co-parent.
[53] Insofar as the claims for constitutional damages are concerned, B[...] testified
that after the arrest, the police wished to speak with him, but he declined. There was
police presence outside his and his parents’ residences. B[...] elaborated that the
incident ruined their lives ; they were inconvenienced and he pursue s the matter
against the defendants to seek justice and to be compensated for financial loss. The
plaintiffs decided to leave South Africa because of the damage caused to them. He
was satisfied that the C & A Friedlander letter of demand and complaint 16 was in
accordance with his instructions to the attorneys.
[54] In cross-examination, B[...] testified that the Particulars of Claim were drafted
in accordance with his instructions. The media articles17 about the incident leading to
the plaintiffs’ arrest, were correct.
[55] As for the incident, B[...] could not recall when he first noticed police presence
as he was on the boardwalk. In further cross -examination, he testified that he saw
police officers at point C as depicted on the photographs .18 The second plaintiff
wanted some space and walked ahead of him. He confirmed that he placed their
daughter, after removing her from the baby carrier, near the wooden railing, then
turned around to the backpack/carrier placed near the huts , and when he turned
back to her, she was already on the beach.
[56] Regarding the “drop” from points 2 to 3 (from the boardwalk to the beach) ,
B[...] testified that it would have taken more than two steps to get down onto the
16 P5-14
B[...] testified that it would have taken more than two steps to get down onto the
16 P5-14
17 Podcast, News 24, False Bay Echo and EWN live
18 Photograph p99
beach. He admitted that there was foot traffic on the boardwalk. When it was put to
him that his intention was to stay in the area where he had put the baby carrier
down, B[...]’s response was that he could not say what his intention was in leaving
the carrier where he did. He explained that the child sat down in the sand and started
screaming when he tried to grab her. Approximately 20 seconds later, C[...] arrived at
the spot where B[...] and their daughter were situated on the sand and they tried to
calm the ir daughter down and speak to her, but she was crying and screaming.
There were about 4 or 5 police officers on the boardwalk at point 4.19
[57] B[...] was referred to a statement taken down by SAPS member, Major -
General Dyantyi (Dyantyi) on 21 August 202 0. In paragraph 1 of the statement, he
stated that his daughter had strayed less than a metre onto the beach when he
stopped her. When questioned about the distance he had reached from the
boardwalk to the beach, he testified that the information in the statement seemed
incorrect. His testimony is that Dyantyi was at his attorney ’s offices where the
statement was recorded. He had no explanation as to why the statement was taken.
[58] It was put to him that his testimony, the statement and the pleading s were not
consistent as to how far onto the beach, their daughter had strayed. His response
was that the incident occurred a long time ago, and that it was certainly not half a
metre, but one to two metres from the boardwalk. He did not see how she managed
to move from the boardwalk to the beach.
[59] He denied that Naidoo approached them and testified that he approached
Naidoo. He had to follow Claassen s to the police van and Naidoo was aggressive,
ordering him into the van. He considered being pl aced in the police van as being
arrested. As far as Claassens ’ conduct goes, it was put to him that the letter of
complaint by C & A Friedlander20, does not indicate that Claassens swore at him, yet
complaint by C & A Friedlander20, does not indicate that Claassens swore at him, yet
he testified that this was indeed so.
[60] Furthermore, and with reference to the audio recording in the boardroom and
the complaint, the defendants’ counsel put to B[...] that nowhere in the complaint
19 Point 4, p100 is depicted as being on the boardwalk, near the wooden step down/railing
20 P5-14
does it reflect that Naidoo intimidated or threatened him at the van. B[...]’s response
was non-committal.21
[61] B[...]’s version on various aspects was tested extensively in cross
examination. I t was put to him that h is Facebook post and pleadings stated that
when he entered the police van, there were other detainees already seated in the
van, yet during the tr ial he testified that he was alone in the van. Furthermore, in
examination in chief he testified that he could not say that he saw C[...] being placed
in a police vehicle, yet in cross-examination it was clear that in his Facebook post of
4 May 2020, he had stated that C[...] was pushed into the police vehicle while
breastfeeding. When confronted with these discrepancies, B[...] stated that the
incident was extremely traumatic and at times, he did not remember certain things.
[62] Insofar as his cell phone was concerned, he stated that i t was not removed
from him at the time of arrest and he could record the police at will. He also admits
that in the audio recording, Claassen is not heard swearing , as he had initially
alleged in examination in chief . In respect of the time spent at the police station in a
meeting/board room, it was put to B[...] that he testified that they were at the police
station for 3 hours, yet the ir pleaded case states 6 hours. When the contradiction
was put to him, he admitted that the Particulars of Claim were incorrect regarding the
time spent at the police station.
[63] B[...] was questioned about the audio recording at the police station . He
testified that there were times where he simply said anything to Naidoo as he wanted
to leave the police station ; that Naidoo was set on a conviction and insisted that he
would flag C[...]’s visa. There was no clarity on the fine to be paid. Counsel put to
him that Naidoo would testify that he had no authority to flag a visa , but B[...]
maintained his version on this aspect. It was also put to him that in his Facebook
maintained his version on this aspect. It was also put to him that in his Facebook
post on 14 May 2024 22 he stated that he could have paid an admission of guilt fine
for a crime he did not commit and that not paying “a small fee to corrupt police” cost
21 B[…] testified in 2024, being 4 years after the incident
22 Exhibit A, p140
him in many ways. Counsel stated that he implied that he could have “paid off” the
police.
[64] While it was put to B[...] that Claassen would testify, it is common cause that
the defendants did not call Claassen as a witness . When questioned about the
plaintiffs’ claim for breach of constitutional rights 23 in respect of the averment that
Naidoo and other officers intimidated and harassed them in April 2020, counsel put
to him that the incident only occurred in May 2020. B[...] then admitted that Naidoo
did not visit the plaintiffs nor his parents’ residences.
[65] In respect of the internal police investigation into the actions of Muizenberg
SAPS, B[...] testified that Dyantyi came to his house and his handwritten affidavit
was completed (by Dyantyi) in the presence of his attorney. In the C & A Friedlander
letter to the SAPS Ombudsman dated 29 May 2020, it was recorded that on 14 May
2020, only one police visit to his home took place. He confirmed, albeit indirectly, that
there were no other visits by SAPS members to his home.
[66] As for the claim for past medical expenses (psychology and psychiatry
sessions) and with reference to Dr Stastny and Mr Emmerich (therapy), B[...]
confirmed that no expert reports were filed. He also did not deny the defendants ’
counsel’s statement that Dr Stastny’s letter dated 18 August 2022, did not conclude
that his (B[...]’s) symptoms, mood and PTSD were as a result of the incident24. B[...]
also did not argue that there were no invoices provided in respect of his/their claim
for past medical expenses, as set out in paragraph 24 of the Particulars of Claim25
[67] In respect of C[...], B[...] denied the suggestion that she had planned to take
the repatriation flight to the Czech Republic before the 4 May 2020 incident. At the
time he testified, he did not feel fearful or traumatised because of the police. He
explained that the financial loss because of the incident was that it cost him to be at
Court.
23 Claim B, par 30
Court.
23 Claim B, par 30
24 Exhibit A, p31-33
25 Page A12
[68] In re -examination, B[...] clarified that his Facebook post of 14 May 2024
meant to explain or say that if there was a “softer option” to pay a fine, he would
have done so. On the Court’s questions in clarification, B[...] testified that C[...] was
on a working visa in South Africa and had lived here (at the time) for more than a
decade.
The second plaintiff: T[...] C[...]
[69] C[...] confirmed B[...]’s testimony regarding her personal relationship with him
at the time of the incident ; that she was living in South Africa for 15 years, first on a
student visa and thereafter, on a working/special skills visa, which would expire on 7
August 2020; that she was a professional photographer ; and, that she was due to
apply for a new visa in order to continue her work as a photographer.
[70] She further confirmed B[...]’s version of leaving their home shortly after 08h00
on the day of the incident with the intention of walking on the Muizenberg Beach
promenade. Her description of the direction of their walk, with reference to
photographs, and that B[...] carried their daughter in a baby carrier on his back, also
corroborates his version . They had agreed to remove the child from the carrier and
as he testified, this occurred next to/alongside the coloured huts. 26 She stood next to
B[...] as he removed the child, and she informed him that she would walk ahead.
This also confirms his version on the point. She did not see where he placed the
child.
[71] As she walked on , she heard her daughter scream and she turned around.
C[...] saw that the child was on the beach, about one and a half metres from the
wooden steps leading from the boardwalk onto the beach. She saw her daughter
moving around in the sand and refusing to leave, and B[...] was leaning toward their
daughter. C[...] then went toward them and tried to calm the child down. She testified
that she tried to pick her up, but she (the ir daughter) resisted and screamed. She
that she tried to pick her up, but she (the ir daughter) resisted and screamed. She
then leaned in toward the child and lowered herself to calm her down and it was at
26 C[…] indicated that their daughter was removed from the carrier at/in the vicinity of the green and
yellow hut – Exhibit A, p97
that stage that police officers instructed the plaintiffs to accompany them. She did not
notice the police officers prior to that moment.
[72] Two male and one female officer approached them and aggressively
demanded that the plaintiffs accompan y them. One of the officers was Naidoo. C[...]
was focused on her daughter and was breastfeeding her as the plaintiffs followed the
police from the boardwalk to police vehicles. She knew that the child would calm
down and eventually fall asleep. The two male officers took B[...] and aggressively
pushed him into a police van.
[73] C[...]’s request for a car seat was refused. She then requested whether she
could walk with the child to the police station, but was ignored, and simply ordered to
enter the vehicle . She testified that the officer st arted pushing her. She entered the
vehicle while breastfeeding and found other officers seated in the vehicle . She was
not informed about the reason why she should get into the vehicle and accompany
the police, and she testified that one of the officers was not wearing a mask.
[74] On arrival at the police station, she met up with B[...]. She testified that she
did not see wha t had happened to him. She noticed that half of the officers in the
police station were not wearing masks and no hand sanitizer was of fered to them as
they entered the station. Their temperatures were taken and they were ushered into
a larger room with tables and ch airs. She testified that she was still unaware of the
reason why they were at the police station and any wrongdoing which they may have
committed. However, she testified that she knew that you could not camp nor play on
the beach.
[75] In the interview room 27, Naidoo sat opposite the plaintiffs while interrogating
them. He did not wear mask, nor the female officer who had driven her to the station.
C[...] confirmed that B[...] took a photograph of Naidoo in the interview room on the
day without a mask28.
27 Exhibit A, p81
day without a mask28.
27 Exhibit A, p81
28 Exhibit A, p124a – the photograph depicts Naidoo writing, wearing no mask - a light blue mask is on
the desk/table.
[76] C[...] testified that during the interview with Naidoo she felt as if she were
inside a nightmare and that a panic attack was imminent. Naidoo informed them that
their situation was so bad/serious that she would be deported from South Africa and
would have a criminal record. She testified that she was not given an opportunity to
explain herself and that Naidoo made her feel as if she were a criminal. He stated
that they would have to attend Court. He had a certified copy of her visa and
explained that if she had a criminal record, it would be difficult to obtain a visa in
future.
[77] She was scared and enquired whether B[...]’s mother could collect their
daughter, but Naidoo refused this request and stated that if the family arrived at the
police station, they would also be arrested. She was of the view that the police
station was not a good place for her daughter because of the COVID-19 pandemic.
C[...] was stressed and testified that th ey had neither food nor water available and
there was no indication as to how long they would be detained.
[78] C[...] testified that that they were at the police station for over an hour and a
half, yet nobody explained what the procedure was. Naidoo instructed her to sign the
warning to appear in Court and the notice of section 35 rights 29 and she complied.
She assumed that the reason why they were brought to the police station was
because they were on the beach. C[...] testified that she knew her daughter was
terrified because of the way she clung to her and th us she breastfed her daughter
often to calm her down.
[79] The questioning in the interrogation room ended when they were told to sign
the notices and attend Court on 6 August 2020, which was a day before her visa was
due to expire. She confirmed B[...]’s version that after the interview room, they were
taken to another room where they spent another thirty to forty minutes30.
[80] C[...] testified that while they were at the police station, B[...] posted a picture
[80] C[...] testified that while they were at the police station, B[...] posted a picture
of their plight on social media. After the incident, she realised that there was social
media interest in their matter and she was terrified that Naid oo would take revenge
29 Exhibit A, p41, 43
30 Exhibit A, p75
on them. She explained that her psychological problems started after the incident
and became progressively worse as she feared being deported from the country.
[81] At some stage after the incident, C[...] contacted the Consulate of the Czech
Republic as she was terrified about the Court case and that something would
happen to them. The advice received was that she could return to the Czech
Republic because it was a publicised case , that it would be best for her to return to
her country of birth and that remaining in South Africa could be dangerous for her.
However, she did not wish to return and split up the family, knowing that B[...] could
not join them on the repatriation flight. She testified that they decided to sell
everything to cover the costs of flights. On 6 June 2020, she and her daughter flew
out on a KLM flight to the Czech Republic, which is where she resides permanently.
B[...] arrived in the Czech Republic about 6 months later.
[82] C[...] testified that she received online psychological help, though she found
that it was not helpful. She also testified that it would have been better for her to
have received medication, but she did not receive any at the time. She felt that the
Czech Embassy/Consulate had pushed them to leave so that they could be safe, but
she also wanted to leave South Africa as she was scared that she would have a
criminal record and due to the media attention regarding the case.
[83] Naidoo appeared to do whatever he liked, and she feared that he would seek
revenge against her . She maintained in examination in chief that throughout the
incident and at the police station , she was not afforded an opportunity to provide her
point of view and to explain what had happened on the beach.
[84] She testified that she and B[...] eventually split as partners. They had shared
care of their daughter, and he settled in the Czech Republic to be close to his
care of their daughter, and he settled in the Czech Republic to be close to his
daughter. She did not return to South Africa other than to visit B[...] ‘s father when he
was ill. She believed that she had not fully processed the incident internally.
[85] With reference to the photograph of Nai doo in the interview room, C[...]
testified that he removed the m ask during the interrogation and would intermittently
leave it on the desk in front of him. She and B[...] wore their masks throughout.
[86] C[...] was referred to the transcript of the recording taken during the
interview31. She testified that she indicated to Naidoo that their daughter only ran
onto the beach for two seconds. She tried to explain to him that they respect the
procedure and that she had never with the police in the past . She denied that she
and B[...] played in the sand. She confirmed the correctness of the transcript of the
conversation with Naidoo.
[87] C[...] also confirmed B[...]’s s testimony that Mr. Riley was appointed to assist
them with the criminal matter and that the charges were eventually withdrawn. She
understood that B[...] had paid Mr. Riley ‘s fee, but they had a joint account at that
time and had paid jointly. She testified that the incident had affected her
psychologically.
[88] At the time of the incident , she was residing in South Africa for 16 years and
believed that police would protect her , h owever, the plaintiffs were treated like
criminals. As a result of the incident, s he and her daughter had to leave South Africa
at very short notice, and in circumstances where she had fought to build a life, career
and a relationship in South Africa. She testified furthermore, that B[...] is only living in
the Czech Republic so that he could be near their daughter. He did not want to leave
South Africa, but the incident changed their lives.
[89] C[...] became emotional during the trial, stating that it brought back feelings
related to the arrest incident. She had l ost all trust in the police and elaborated that
she was prone to panic attacks . The worst part for her was that the incident ended
the relationship between her and B[...] and that even though they still communicate,
they are no longer fully functional as a family as they were prior to the incident.
[90] In c ross examination, C[...] testified that the Particulars of Claim, and the
detail upon which their claims are based, were correct. She was also privy to the C &
31 Exhibit C
A Friedlander letter 32 and confirm s that the content was correct as per their
instructions.
[91] In respect of the incident , C[...] stated that she may have assisted B[...] in
placing the child carrier down on the ground. The remainder of her testimony
regarding her approach to her daughter and actions on the beach accord largely with
B[...]’s version. Her evidence was also that she explained to her daughter that she
had to get off the beach and that it took some time to calm her down.
[92] On counsel’s pressing questions, C[...] explained that i t was not a case of
them simply grabbing the child and taking her off the beach immediately. At the time
that she reached her daughter, the latter was having a tantrum, and she chose firstly
to explain to her what was happening. She knew that if she grabbed her and put her
down elsewhere, she would run back to the beach.
[93] Insofar as it was put to her that the defendant s’ witnesses would testify that
the drop from the boardwalk to the beach as depicted on pages 96 and 97 of Exhibit
A was higher on the date of the incident th an as depicted in the photograph s, she
testified that the drop down (on 4 May 2020) was as per the photos, because if it was
not, then her daughter would not have been able to get do wn onto the beach .
However, she conceded that she did not see how the child got onto the beach.
[94] As for the police presence, she testified that she saw them on the boardwalk
and saw that the re were two male s and one female officer, who joined them later.
She could not answer whether it was the first time she had seen them as she did not
concentrate on the police presence at that stage.
[95] C[...] testified that as she was not in the police van with B[...] she could not
say whether there were other suspects in the vehicle with him. It was put to her that
B[...] had eventually admitted to being mistaken about his statement that there were
B[...] had eventually admitted to being mistaken about his statement that there were
other persons in the police van with him on the day of the incident. She confirmed
32 P5
that at the time , people were not allowed to be on the beach. In her affidavit33, she
stated that she did not interpret the lockdown regulations to mean that she could not
go to the Muizenberg beachfront or the boardwalk . She testified that she did not
consider it a breach of the regulations and at the time she was confused. Counsel
put to her that there was no confusion and that she knew , at the time, that she could
not be on the beach.
[96] It was also put to her that Naidoo would testify that he had informed her on
the day of the incident about the reason for her arrest , more specifically, that she
was on the beach and therefore transgressing the regulations. To this, C[...]
responded that she did not consider that she had breached any regulations and she
was simply not on/at the beach to indulge in a picnic, swim ming or surfing but had
entered upon the beach to remove her daughter.
[97] C[...]’s testimony as to waiting in the passage and that they were with Naidoo
in the boardroom, and thereafter being taken to another room, accords with B[...]’s
account of events. Counsel put to her that paragraph 17 of the Particulars of Claim
which pleads that they were in a confined area of the police station with other
members of the public was thus incorrect. C[...]’s response was that she and B[...]
and the child had to wait and walk through the corridors at the police station and
pass the public.
[98] It was put to her that that the pleaded period of detention, being 6 hours, was
incorrect, and that B[...] testified that they were at the police station for approximately
3 hours, and she agreed with the estimated 3 hours. As to why there was an error in
the pleadings regarding 6 hours, C[...] responded that in respect of certain aspects,
she gave instructions to legal representatives in accordance with her emotions.
[99] Insofar as the processing by Naidoo was concerned, C[...] maintained that he
[99] Insofar as the processing by Naidoo was concerned, C[...] maintained that he
never provided her with an opportunity to present her side of the story and that it was
one-sided and all about him. She was made to feel that she was a criminal and that
she would be deported from South Africa.
33 Exhibit A, p119
[100] C[...] was questioned about the transcription of B[...]’s recording in the
boardroom34. She confirmed her understanding at the time that she would have to
attend Court for the criminal matter, but that her visa would expire the day after they
were required to be in Court. She explained that she was preparing for her visa
application, and Naidoo had indicated that she would have a criminal record because
of the incident on the beach. She required a clear criminal record for purposes of the
visa application.
[101] Counsel put to her under cross-examination that Naidoo would testify that he
never told her that she w ould be deported from South Africa. However, she
disagreed with this version. Insofar as the ir daughter was concerned, C[...] is
adamant that the police station was not a place for a toddler and that she did not
belong there particularly during the Covid pandemic.
[102] It was put to her that the transcript and the recording s indicate that her
daughter was not crying during the time at the police station. Further more, that
Naidoo and Claasen would say that they never saw the child in any discomfort. C[...],
however, was firm that her daughter was not fine at the time and that had she been,
she would not have requested from the police that B[...]’s family be allowed to collect
her and take her home. She reiterated that this was during the height of the Covid-19
pandemic and it was clear that people in the police station were not adhering to
safety protocols.
[103] C[...] elaborated that while at the police station, she breastfed her daughter to
keep her qu iet and peaceful. It was also put to her that while they complained that
there was no food or water at the police station, they had never requested it. She
had no comment to this statement.
[104] C[...] testified that neither she nor her daughter contracted the virus after the
incident and their time at the police station. She explained that she stayed at home
incident and their time at the police station. She explained that she stayed at home
with her daughter for a week and a half, thereafter, had access to an attorney and
34 Exhibit C
approximately 3 weeks later , they received news that the criminal charges were
withdrawn.
[105] C[...], however, testified that the matter was in the media , she feared the
retaliation and revenge by the police , and she was damaged emotionally and hence ,
she opted for a repatriation flight to the Czech Republic. Counsel put to her that
there were approximately 11 articles which were discovered by the ir (plaintiffs’) legal
representatives in the matter and that while the incident received extensive media
attention, it was clear that B[...]’s view was requested.
[106] Counsel furthermore put to C[...] that had he wished to do so, B[...] could have
responded that he had no comment to the media enquiries, but this was not the
case. C[...] agreed. It was furthermore put to her that the defendants would argue
that the media/news articles were written with B[...]’s input. C[...]’s response was that
B[...] spoke on behalf of the plaintiffs.
[107] Counsel further put to C[...], with reference to the Eyewitness News article
plus B[...]’s social media post showing a photo of C[...] breastfeeding their daughter
in one of the police station rooms35, that B[...] was the author of the media
sensation/interest in the matter and that her alleged fear of Naidoo and the police ,
was as a result of such media interest in the matter. C[...]’s response was simply that
she was grateful that B[...] had represented all of them.
[108] In addition, she was also questioned about the alleged harassment by the
police after the incident (as pleaded). C[...] denies having any video footage of any
alleged harassment by the police in the form of them (the police) ringing the doorbell
at their residence in Muizenberg. Furthermore , she also could not testify as to how
often the harassment is alleged to have occurred.
[109] It was put to her that aside from their attorney’s correspondence, there was no
other indication on record and from the discovered documents, that there were other
other indication on record and from the discovered documents, that there were other
police visits to their residence or police harassment. C[...] replied that they saw a
35 Exhibit A, pages 66-67
police vehicle in front of their house, but they had no record of it. She also conceded
that Naidoo did not visit their residence.
[110] C[...] elaborated that after the incident, she was in a very bad state and hid in
the apartment, afraid of the police.
[111] In re-examination, C[...] testified that the entire incident caused her distress .
She was offered psychological assistance but declined it and rather stayed home.
She also testified that she did not know that B[...] was communicating with the
media. As to the incident, she te stified that they were on the beach when the police
approached them and she was aware that the lockdown regulations at the time, did
not allow for her to be on the beach.
[112] She clarified that she did not consider that she was in breach of the
regulations because she only entered the beach to retrieve her daughter who had
run onto the beach: it was a natural reaction of a mother to retrieve her young child.
[113] Her concern regarding her visa was that she would be illegally in the country
once it expired, which was a day after the Court date. In addition, her visa application
would require no criminal record, and she would need to apply for police clearance
for the visa application. She therefore could not have a criminal charge hanging over
her head.
The context within which the incident occurred
[114] Prior to Naidoo’s testimony, the defendants’ counsel made a brief statem ent,
impressing upon the Court that the context as to how the police was required to act
at the time of the incident, 4 May 2020, was significant36. She emphasised that alert
level 4 had recently come into effect and the country and its citizens were faced with
36 There was no objection to the defendant’s counsel making a brief statement prior to commencing
the testimony of Naidoo
new legislation. Police were faced with new crimes. It was a time of much uncertainty
about the virus and its effects, with thousands of people dying worldwide.
[115] The implementation of these new regulations was the responsibility of the
police services. Counsel emphasised that the offence was committed by the plaintiffs
in the presence of police officers and as a result, the members of SAPS were entitled
to arrest the plaintiffs. The detention was only insofar as the processing of the
charges were concerned and accordingly the actions of the police were justified and
reasonable in the circumstances.
The arresting officer: Brigadier Colonel Vassie Naidoo
[116] As with the plaintiffs, Naidoo testified at length. In 2020, he was a Brigadier in
the SAPS and had been in service for 41 years . The incident occurred while he was
the station commander at Muizenberg police station and held the rank of Colonel. He
testified that s ection 205(3) of the Constitution mandates the responsibility of the
police to uphold and enforce the law , to provide a safe environment for all citizens
and to prevent crime and this entailed vast obligations and duties.
[117] He explained that the number of people succumbing to the virus in May 2020
was scary and SAPS was required to implement the regulations and the Act . He
testified that he and Classen did foot patrols at Muizenberg Beach and that people
were allowed to exercise between 06h00 to 09h00. The police received complaints
about people breaking the regulations and exercising on the beach , which was a
restricted area.
[118] On the day of the incident involving the plaintiffs, the police were near the
ablution facility. He observed B[...] sitting on the beach and C[...] was on her knees .
Both were playing with the child in t he sand, facing toward the beach. From his
observation, they seemed like they were relaxing on the beach . He estimated that
they were probably 200 metres from the boardwalk.
[119] The police approached the plaintiffs to direct th em to leave the beach ,
accompanied them to their vehicles, arrested them and informed them of their rights
and the charges . There was no reason for the police to arr est them in public and
embarrass them. The child seemed relaxed and they seemed to be having a family
outing. He denies that the child was screaming or shouting at the time.
[120] Naidoo was questioned about the drop from the boardwalk the beach 37 and
he estimated it to be a 1,5-metre drop. According to him, there was no way the child
could run onto the beach on her own because the drop is too steep/high for a child of
that age. He denies that the police were in any way aggressive as they approached
the plaintiffs. However, he explained that when they arrived at the police van , B[...]
wanted C[...] to enter the van with him and he became argumentative.
[121] Naidoo then explained to him that he should not resist and that C[...] had to
enter the police vehicle. He denies that there were other people in the police v an at
the time that B[...] entered it. He and Claasen then drove B[...] to the police station
while his female colleague, Colonel Rossouw, drove and escorted C[...] and the child
to the police station.
[122] At the police station the plaintiffs were taken inside, sanitised and their
temperatures were taken and thereafter they were escorted to the boardroom.
According to Naidoo, the plaintiffs were not going to be locked up and kept in police
holding cells. They were provided with a Court date and there was never any
indication that they would be kept in the holding cells.
[123] Naidoo explained that he processed the section 35 notice and confirmed his
signature on both documents. The plaintiffs were arrested at 08h30 and the notices
were completed at 09h30. They were released at 12h00. Insofar as the boardroom is
concerned, he testified that it was very large, much larger than an office.
37 Exhibit A, p96
[124] Naidoo was questioned at length about the conversation he had with both
plaintiffs. He testified that they asked many questions, and he explained the
consequences of their actions. He also ‘schooled’ them in a ‘fatherly’ tone.38 He did
not enjoy arresting them, but they broke the law. Naidoo referred to his factual report
regarding the arrest of the plaintiffs39.
[125] He was required to submit a report to the SAPS Provincial Commissioner and
at the time , he did not know that there was a formal complaint and article in the
media regarding the arrest of the plaintiffs. According to his report, on the date of the
incident, all the police officers wore masks and compl ied, as far as possible, with
social distanc ing requirements. He explained that if people were 1,5 metres apart
then there was no legal requirement to wear a mask. Naidoo elaborated that sat 1,5
metres from the plaintiffs in the boardroom . There was thus social distancing, they
were in a large room with ventilation and therefore there was no requirement to wear
a mask.
[126] Naidoo had no idea where exactly the plaintiffs lived and denied ever visiting
them at their residence. According to him, the offence was serious and he could
have detained both plaintiffs, but they were never going to be detained in the holding
cells.
[127] He explained that the purpose of the plaintiffs’ arrests was to secure their
attendance at Court. The SAPS 496 release was regarded as a ‘free bail’.40 They
were not given a fine for the offences as there was no fines stipulated at the time.
[128] The cross examination of Naidoo was extensive. Naidoo agreed with the
plaintiffs’ Counsel’s statements that the Covid-19 pandemic was a momentous event
worldwide, that many citizens died from the virus and that people were suffering in
many ways. The police had to enforce the law and would assist the Government in
trying to save lives. He was asked whether he was aware of the President’s
trying to save lives. He was asked whether he was aware of the President’s
speeches and testified that he had heard most of the President’s address es to the
38 Naidoo used these words during his testimony
39 Exhibit A, p29-130
40 Generally, the person is released on warning in terms of section 72(1)(a) of the CPA
nation. A portion of one of the President’s speeches was read out and it was
emphasised that people were required to co -operate, work together and be
compassionate.
[129] Naidoo testified that according to his understanding , the President was
talking to the citizens of the country and that when he was off duty, he was a normal
citizen but when on duty he had the rank of a police officer. He was mandated in
terms of section 205 of the Constitution and had a duty to comply with the Act. He
disagreed with counsel’s statement that the police were required to be
compassionate and that the statement of the President regarding compassion
applied to the police as well.
[130] Naidoo’s testimony was to the effect that when he encountered someone who
broke the law, he could not be compassionate as he was wearing a different hat. It
was put to him that he had arrested the plaintiff s on suspicion of committing
offences, but Naidoo pertinently pointed out that there was a difference between a
suspicion of commission of a crime and an offence committed in his presence, which
is what occurred at Muizenberg Beach
[131] He was adamant that the plaintiffs committed an offence in his presence and it
was not up to him or his colleagues to state that they were guilty , but that the law
was required to take its course. The plaintiffs’ counsel put to him that he/the police
stated that his clients were guilty in that they had committed an offence in his
presence. H owever, Naidoo persisted that that he did not s tate that the plaintiffs
were guilty of the offence : he stated that the offence of being on the beach was
committed in his presence. He explained further that the purpose of the arrest was to
bring the plaintiffs to Court and that it was not up to the police to determine that the
person was guilty . He elaborated that after an arrest there followed a prosecution
and that the SAPS role was part of the justice process.
and that the SAPS role was part of the justice process.
[132] It was put to him that there was never a Court appearance, that the plaintiffs
were legally represented and that the charges were withdrawn. Naidoo’s response
was that the plaintiffs cou ld have reached an agreement with the National
Prosecuting Authority (NPA) but it was up to the NPA to decide how to deal with the
prosecution. As far as he was concerned, he performed his duty. He could not
comment on the basis on which the charges were withdrawn.
[133] Naidoo was questioned about the offences or charges as de scribed on the
Notice of rights and the SAPS 496. He admitted that on C[...]’s section 35 Notice, the
reason for detention refers only to being found on the beach, while B[...]’s Notice
refers to being on the beach and failure to confine to residence.
[134] Naidoo admitted that Regulations 16(2)(a) to (e) did not apply to the plaintiffs;
that the incident and arrests occurred at 08h30 and that Regulation 16 (2) allowed
people to leave their residen ces between 06h00 and 09h00. He conceded that the
plaintiffs thus had the right to leave their home at that time. Furthermore, he also
admitted that the Muizenberg Promenade/boardwalk was within 5 kilometres of the
plaintiffs’ residence.
[135] He accepted that the prosecutor could add charges and decide on which
charges to proceed with against the plaintiffs. He denied writing out the SAPS 496
Notices, stating that they were completed by the detective assigned to the matter. He
was not prepared to concede that the SAPS 496 /Warning to appear in Court were
incorrect. Naidoo knew the SAPS Code of Conduct and as a police officer , he was
required to read it every day.
[136] He could not dispute the route which the plaintiffs took from their home to the
boardwalk nor how they walked along the boardwalk and ended up on the beach.
According to Naidoo, it was impossible for a 21-month-old child to have jumped from
the boardwalk onto the sand, and he disputed that she managed to get onto the
beach on her own. He estimated the drop from the boardwalk to the beach to be 1, 5
metres.
[137] He testified that when he and Claasen saw the plaintiffs and child, they were
at least 5 to 6 metres from the boardwalk. It was put to Naidoo that the third plaintiff
grew up on the beach and used it as a “playground” since she could walk. Naidoo’s
response to this statement was to conclude that it thus meant that the plaintiffs
intended to place their child on the beach on the day of the incident.
[138] Despite lengthy and persistent cross examination, Naidoo repeated that he
did not “buy” the plaintiffs’ versions , emphasising that he saw B[...] seated on his
buttocks on the beach. He also stated that he ordered them to leave the beach and
informed them that they breached the regulations by being on the beach and advised
them of their rights. He did not dispute that the plaintiffs were shocked at the arrest
and surmised that they took a chance to relax on the beach and were caught out. He
arrested them because they had entered a prohibited area: the beach. He also
stated that had the child been throwing a tantrum, he might have approached the
situation differently and assisted them in removing her from the beach.
[139] On the issue of whether the plaintiffs were given an opportunity to give
reasons as to why they were on the beach, it was put to him that no opportunity was
given to the plaintiffs to explain why they were on the beach, contrary to w hat was
pleaded ( that they were afforded such an opportunity ).41 When pressed, Naidoo
explained that he did not give them an opportunity to provide reasons, but that the
detective did so.
[140] Counsel put to Naidoo that it was highly improbable that the two adults would
play on the beach with their daughter knowing that the lockdown regulations
prohibited them from doing so. Naidoo insisted that they were on the beach on
purpose: to relax and/or to play with their daughter. He did not agree with their
version, as put by the plaintiffs’ counsel, that the only reason they were on the
beach, was to remove their daughter and return her to the boardwalk area.
[141] Naidoo also disputed that the child kick ed up a fuss and ha d a tantrum
when her parents wished to rem ove her from the beach. He testified that she was
when her parents wished to rem ove her from the beach. He testified that she was
never agitated, nor screaming when he and Claassen approached them. His view
was that B[...] could easily have picked her up and removed her from the beach
rather than having to wait for C[...] to get to the scene. He eventually conceded that
41 Plea, par 17.5
he did not see B[...] put the baby carrier down near the coloured huts and remove his
daughter and place her on the boardwalk.
[142] At the time that he was arrested and placed in the van, B[...] wanted C[...] and
their daughter to travel with him, which Naidoo refused. He stated that the law did
not allow a car seat and C[...] was placed in the other vehicle with their daughter. He
confirms that she was breastfeeding and that the vehicle was driven by a female
colleague. At some stage at the police van, B[...] became argumentative and he
cautioned him to co-operate, but he denies threatening B[...].
[143] Naidoo also re-affirmed that the factual report was meant for the Provincial
Commissioner pursuant to an internal investigation42. In lieu of the audio recording, it
was put to Naidoo that he was heard saying to Claassen that it was after 09h00 and
that there were still people running and walking and that they should be arrested.
Naidoo admitted making the statement and explained that as it was after 09h00, the
regulations required people to be in their residences 43.
[144] It was put to Naid oo that his tone and attitude in wanting people arrested (as
heard on the audio recording) w as punitive. Naidoo held firm that he had to follow
process and where people were outside after 09h00, they were c ontravening the
lockdown regulations and could be arrested. He emphasised that the police would
arrest but not punish. He was extensively cross examined on this aspect and the
police’s attitude and approach at the time.
[145] Naidoo explained that in terms of regulation 16(2), the time allowed for
exercise was from 06h00 to 09h00 , and anyone who was still outside was breaching
the regulations . The police were thus entitled to arrest those people who failed to
comply with the law. While he understood that there was an internal enquiry, he was
ultimately not found to have flouted the police code of conduct.
ultimately not found to have flouted the police code of conduct.
[146] Naidoo persisted that it was not the police’s role to conclude that people were
guilty but in respect of the plaintiffs, the offence was committed in his presence, and
42 Exhibit A, p129-130
43 Exhibit C, p1
his role was to arrest them in order to bring them before Court through the SAPS
496.
[147] Naidoo questioned the legality of B[...]’s recording of the conversation and
processing in the boardroom. He testified that the charge and alternative charge
were explained and that he informed them that an admission of guilt did not apply.
He also felt that the lockdown regulations were excessive. He agreed with the view
that it was daunting times. However, he emphasized that there were citizens who
were intentionally breaking the law and challenging the police.
[148] As for the boardroom, he could not confirm whether he sat at the longer or
smaller table but does confirm that he was questioning them after 09h00. As for not
wearing a mask throughout his interaction with the police, he explained that if there
was social distancing of 1 , 5 metres between people , wearing a mask was not
required. He confirm ed that temperatures were taken on entry to the police station
and hand sanitising occurred.
[149] With reference to regul ation 5, counsel put to Naidoo that he was required to
wear a mask in the police station as it was a public space. Naidoo was of the view
that the p olice station was not a public space but, in any event, it was sanitised, all
protocol was followed and the plaintiffs sat at other tables in the boardroom.
[150] In respect of the transcript of the conversation in the boardroom, N aidoo
stated that h e explained to the plaintiffs that the offence was serious in that they
were on a prohibited area , the beach. It was put to Naidoo that he intimidated the
plaintiffs by informing them that they were in trouble and that they would receive a
conviction. This caused them to be fearful.
[151] Naidoo disagreed with the accusation. He referred to the transcript of the
audio recording in the boardroom and remarked that B[...] was clearly relaxed and
understanding. Where the plaintiffs required clarity, he then provided it. They wished
understanding. Where the plaintiffs required clarity, he then provided it. They wished
to know what the consequences would be and what could happen and he had then
explained this to them. He denied that he had intimidated them and it was not his
fault that the plaintiffs misunderstood him. He denied intending to bully them.
[152] Naidoo was of the view that the plaintiffs had no right to record him and had
an ulterior motive. He was innocently explaining the charges and what would happen
as far as the process and consequences were concerned. He also apologised in
Court if it were seen that he had exceeded the bounds . He was questioned about
what he meant when he stated that “it will stick”44. His response was that there was a
prima facie case against the plaintiffs, but it was up to the prosecutor to decide on
the charge to proceed with. He could not comment on the issue related to C[...]’s
visa.
[153] Naidoo elaborated that the plaintiffs knew that a Court would have to decide
about their guilt. His view was that B[...] fully understood what the due process was.
As for C[...], she asked about the Court date and what would happen if she were out
of the country at the time she was required to appear in Court, and he explained the
procedure about an appearance in Court. According to Naid oo, the plaintiffs were
over-exaggerating. He strongly questioned why B[...] would record only part of the
session in the boardroom and not the rest. He furthermore testified that at no stage
was it indicated that he was intimidating them.
[154] In addition, he stated that the second plaintiff did not come across as
shocked, distraught and fearful. He merely processed them, yet he was maliciously
recorded. It was put to him that they were intimidated, threatened and that he made
comments on C[...]’s deportation, that she would not be eligible to apply for another
visa and would face a c riminal conviction. As a result, they were not treated with
dignity.
[155] Naidoo denied this version and stated that when one has regard to the
transcript, it is not reflected that he did not treat them with dignity. He had a normal,
transcript, it is not reflected that he did not treat them with dignity. He had a normal,
informative conversation with them and he/the defendants could not be held
responsible for how the plaintiffs felt.
44 Exhibit C, p5
[156] In respect of the fact that C[...] and their daughter took a repatriation flight ,
Naidoo’s response was that it was her choice to do so , that he had no control over
that, that she had legal representatives, and how the plaintiffs felt (at the time) could
not be seen to be the responsibility or fault of the police. To the extent that the
charges were withdrawn, he testified that it was good luck to them. It was
furthermore put to him that the family was split up because of the incident and that
they all left the country after the incident 45. Naidoo’s response was that neither he
nor the defendants could be held responsible for those actions and decisions.
[157] It was put to him that the plaintiffs were never given the opportunity at the
promenade to provide an explanation to the police as to why they were on the beach
and that the reasonable person would not have followed the protocol in the
circumstances. Naidoo's view was that in terms of his constitutional obligation, the
police are mandated to enforce the law , that it was a state of disaster , that section
205 of the Constitution and s ection 40(1)(a) of the CPA gave the police the authority
to apply the law and arrest the plaintiffs: they were on the beach, which was an
offence and it was committed in his presence. He furthermore testified that the police
was not a form of alternative dispute resolution . It was furthermore put to him that it
was unprecedented times, that the re was immense fear among citizens, and that he
had arrested two people together with their daughter and thus acted unreasonably.
[158] Naidoo was unmoved and persisted that there was a blatant contravention by
the plaintiffs of regulations in that they were on the beach. His view was that the
police acted quickly in arresting them and that they were entitled to explain to a
Court why they were on the beach. Their rights were not violated.
[159] It was also put to him that because of the pandemic and the health crisis, the
[159] It was also put to him that because of the pandemic and the health crisis, the
plaintiffs and the child were exposed to the coronavirus in the police station and in
the SAPS motor vehicles. He testified that the police vehicles and police station were
sanitised, temperatures were taken on entrance to the station , social distancing
45 B[…] left for the Czech Republica several months after C[…]
occurred and masks were worn. In Naidoo’s view, the plaintiffs exposed themselves
and their child to the risk of the virus when they left the house.
[160] He furthermore testified that they w ere within three hours after they were
arrested and that nothing had happened to them. He explained that he refused
permission for B[...]’s parents because they did not have a permit to enter the police
station. He pointed out that none of the plaintiffs contracted the virus.
[161] It was furthermore put to him that C[...] was breastfeeding her daughter in the
charge office and en route to the police station and that this was degrading . Naidoo
vehemently denied that the police caused her embarrassment, and testified that in
the police station, C[...] was escorted to a private room by a female officer to
breastfeed, and that it w as her decision to breastfeed the child. In addition, there is
no evidence that the child was distressed and crying or hysterical.
[162] Naidoo took great issue that he was surreptitiously recorded and held the
view that B[...] was deceitful in doing so, and that the recording was used to bolster a
claim against the police. He made it clear that he had nothing to gain and that his
intention was to uphold the law. Finally, it was put to Naid oo that the three plaintiffs
were treated in an undignified manner, but Naidoo d ismissed this in totality. He
testified that he treated them with respect and explained their constitutional rights.
He was accused of wrongful arrest but denied this accusation.
[163] In re-examination, he confirmed that the police are not required to provide car
seats. The mother was with the child when they entered the police vehicle and that
the distance from the vehicle to the police station was not more than 400 metres. He
furthermore explained that the protocol at the police station was that they were
required to make their own masks. The police station and motor vehicles were
required to make their own masks. The police station and motor vehicles were
sanitised, and the police station /building was regarded as a safe zone. The rooms
were physically demarcated in 1,5 metre zones and that they had internal protocols
in that persons were not allowed to be less than 1,5 metres of the next person.
[164] In respect of the reference to a fine , as evident from the transcript, he
indicated that he stated that he would find out from the prosecutor if a fine of R1 000
could be issued but they were not sure at the time about the/a fine . Counsel put to
him that no finding was made that the plaintiffs committed a crime as the matter
never made it to Court. Naidoo’s response was that it is for the police to arrest when
a crime is committed in their presence and it was not for them (SAPS) to determine
the plaintiffs’ guilt. This was up to a Court.
[165] According to Naidoo, he did his job as a police officer. It came to his attention
that the charges were withdrawn on 26 May 2020 , but he did not follow the process
of the proceedings involving the prosecution. Naidoo reiterated that when the
plaintiffs were released on the S APS 496, all the charges were indicated in respect
of both plaintiffs. When questioned at length on the issue regarding the charges and
the reasons for arrest under the regulations, Naidoo testified that the plaintiffs were
arrested for l eaving their house and sitting on the beach . Furthermore, he testified
that he informed both plaintiffs of their rights on the scene. This concluded the
evidence in the matter.
Common cause, admitted and/or undisputed facts
[166] The Disaster Management Act and its regulations as published in the
Government Gazette No. 43258 of 29 April 2020 applied to all citizens on the date of
the incident, 4 May 2020. The country was under alert level 4.
[167] Regulation 16 (2)(f) applied in that people were allowed to leave their
residences to walk, run or cycle between 06h00 and 09h00 within a 5-kilometre
radius of their place of residence, provided that it was not done in organised groups.
In terms of regulation 24(2)(a ), beaches normally open to the public or where
people gather, were prohibited, meaning that beaches were closed to the public.
[168] Regulation 31(2) made it an offence for any person to fail to comply with,
inter alia, regulation 16(2) and 24(1) and (2) . On conviction of failure to comply with
inter alia, regulation 16(2) and 24(1) and (2) . On conviction of failure to comply with
the provisions of these regulations, a person was liable to a fine or to imprisonment
for a period not exceeding 6 months, or to both such fine and imprisonment.
[169] The three plaintiffs were on the boardwalk/promenade at Muizenberg Beach
at 08h30 on 4 May 2020. They lived approximately 400 to 500 metres from the
beach. At the time that the police officers approached them, all three plaintiffs were
on the beach. At the very least, Naidoo and his colleague Claassen approached
them.
[170] Neither B[...], C[...] or Naidoo saw the third plaintiff leave the boardwalk and
enter the beach. Put differently, B[...] and C[...], and so too Naidoo, do not know how
the minor child got from the boardwalk onto the beach. The child was seated in the
sand.
[171] The plaintiffs were told to leave the beach and follow the police, who escorted
them to two police vehicles behind the ablution area. The plaintiffs were arrested for
being on the beach and their rights were explained to them. B[...] entered a police
van and C[...] and the ir child entered a police vehicle , driven by a female police
officer. During the course of the mother and child entering the vehicle, C[...]
breastfed their daughter.
[172] The plaintiffs wore face marks during the incident and at the police station.
They waited in the passage for a brief period and encountered police officials and
members of the public before being escorted to the station’s boardroom, which was
large, ventilated and contained tables and chairs.
[173] Naidoo processed the plaintiffs in the boardroom , informed them of the
charges, the seriousness of the offence(s), completed the section 35 notices and
informed them of the ir Court date. At times during the processing, Naidoo did not
wear a mask. The plaintiffs were sitting at a distance from Naidoo while in the
boardroom.
[174] At the time of arrest and while in the police station, B[...] used his cell phone
to take photos and post about the incident on social media . He also recorded
Naidoo’s instructions to junior colleagues in the station and the plaintiffs’ processing
in the boardroom, without Naidoo’s knowledge.46
[175] At 09h05, Naidoo informed colleagues at the station that they should pick
up/arrest anyone still found running or walking as they were contravening lockdown
regulations.
[176] The plaintiffs were issued with warnings to appear in Muizenberg Magistrates’
Court on 6 August 2020 .47 The plaintiffs were not kept in holding cells, nor
handcuffed and were allowed to leave the police station at approximately 12h00.
They were thus at the police station for three and a half hours at most.
[177] The plaintiffs appointed legal representatives for the criminal matter and for
their civil claims. They also lodged a complaint against the Muizenberg SAPS which
was addressed to the Ombudsman, and an internal enquiry was held.
[178] The incident and the plaintiffs’ arrests received media and social media
interest and attention.48
[179] While Naidoo had no personal knowledge hereof, it was not disputed that on
26 May 2020, three weeks after the incident, the prosecutor withdrew the charge
against the plaintiffs. Thus, the matter was not placed on the Court roll and there was
no Court appearance.
[180] It was also undisputed that on 6 June 2020, C[...] and the plaintiffs’ daughter
took a repatriation flight from Cape Town to the Czech Republic , and six months
later, B[...] joined them.
[181] Neither Naidoo nor Claassen visited the residences of B[...] and his parents.
46 Exhibit C
47 Exhibit A, p40-43
48 Exhibit A, p44-73
[182] B[...] and C[...] were aware that being on the beach was against the lockdown
regulations. The arrests and detention are admitted.
The reason why the plaintiffs left their residence on 4 May 2020
[183] At the close of the evidence, the defendant’s counsel argued that the plaintiffs,
as they were seen on the beach, were outside the ir residence, but not for the
prescribed physical activities – walking, running and cycling - referred to in regulation
16(2)(f). She submitted that in view of the evidence, the Court should find that the
plaintiffs were outside their residence for the purpose of/intending to relax and play
on the beach.
[184] To motivate these submissions, counsel referred to Naidoo’s testimony that
when he first saw the plaintiffs from his vantage point on the boardwalk, B[...] was
seated in the sand and C[...] was leaning toward their daughter. It is not disputed that
all three plaintiffs were on the beach shortly before and at the time the police
approached them. It was submitted that because they were on the beach, it thus
followed that they were (therefore) not outside their residence as allowed by
regulation 16(2)(f), but for the sole purpose of relaxing and socialising on the beach.
[185] In respect of this submission, it must be remembered that Naidoo was the
only witness for the defendant . It is the defendants’ defence that the arrests of the
plaintiffs were lawful. It is undisputed that Claassen was patrolling with Naidoo along
the boardwalk and in the Muizenberg promenade . Claassen was present when
Naidoo approached while on the boardwalk and spoke to the plaintiffs. Yet, Claassen
was not called to corroborate Naidoo’s version that B[...] was seen seated on the
beach.
[186] C[...] admitted that when she was at her daughter ’s side (this was after she
turned around and realised that the child was on the beach) she bent or knelt to
speak to her. In the ordinary course of life and a family’s outing at the beach , this
speak to her. In the ordinary course of life and a family’s outing at the beach , this
would not be an unusual interaction between a parent and her toddler. While some
criticism levelled against the inconsistent versions of the plaintiffs on certain aspects
is warranted, I must emphasise that they were steadfast on the fact that they left
their residence a bit late on that morning as they had first made food for people in
the area. Furthermore, the evidence throughout is that B[...] and C[...] were aware
that being on the beach was prohibited and that they that had until 09h00, to walk
outside. This version was not broken down in cross examination.
[187] If I am to believe that by them being on the beach, it should thus be concluded
that the plaintiffs breached regulation 16(2)(f) as they were therefore not walking,
running or cycling , but rather relaxing , socialising and playing on the beach, then it
begs the following question: why would the adult plaintiffs wait until they reached the
area of the yellow-green hut49 and the wooden steps (opposite the huts), to enter the
beach to relax and play in the sand with their daughter? The uncontested evidence is
that the plaintiffs walked from B[...]’s apartment, a short distance from the beach, and
entered the promenade.
[188] As shown on the photographs, they entered the boardwalk from the mountain
side and walked toward the huts, where the ba by carrier was placed down. B[...]
removed the child from the baby carrier and placed her on the boardwalk .
Significantly, in the area where this occurred , B[...] saw police presence. The
indication is also that the police were closer to the ablution area which was near to
the huts and they were visible to B[...].
[189] If the plaintiffs, on leaving their home, and knowing that being on a beach was
off limits to the public, nonetheless intended to socialise and relax on the beach with
their daughter, I have to ask why they did not do so as they entered the boardwalk,
on the “mountain side” of the beach ?50 Surely, it would have made sense, if their
sole intention upon leaving home was to relax on the beach , to then rather sit down
sole intention upon leaving home was to relax on the beach , to then rather sit down
and play shortly after entering the boardwalk which was an area less visible to the
police, who were enforcing lockdown regulations. In that way, they would in all
49 Exhibit A, p97
50 Exhibit A, p97
probability have had more time to play and relax before they were detected or
confronted by the police.
[190] It simply makes no sense, given the facts of this case, that the plaintiffs, up
until the incident both law abiding citizens, and with a toddler along, would rather
seek to enter upon the beach in an area close and visible to police patrols, when
they knew that being on the beach is prohibited. Given the surfeit of evidence in this
trial, my view is that it would be illogical and highly improbable for the plaintiffs to
have decided to relax on the beach yet only do so when they were almost at the end
of the boardwalk and close to police officers. It would make more sense that, if the
object or purpose of leaving their home on that morning, was to relax on the beach,
knowing that it was prohibited to do so, that they would have acted upon that and
entered the beach shortly after arriving on the boardwalk and away from police
presence.
[191] I thus do not agree with the defendant’s counsel’s submission in this regard. I
find, on the probabilities , that the plaintiffs left their residence with the intention to
make the most of the walk and the time available to them before the 09h00 curfew. It
was never put to them that their version that they left the house late, was a
fabrication. Naidoo could also not dispute that they left their home and entered the
boardwalk along the beach from the mountain side , furthest from the coloured huts.
He also did not dispute that they lived within the 5-kilometre radius. The plaintiffs’
version that they walked from their home to the boardwalk , was not broken down in
cross examination.
[192] Furthermore, if the defendants’ submission s are to be accepted to be correct,
it would also mean that anyone who was outside on the boardwalk, and who , for
example, stopped walking, running or cycling for however long , would be in breach
of regulation 16(2)(f). This would have created an illogical scenario , with the police
of regulation 16(2)(f). This would have created an illogical scenario , with the police
arresting anyone who, for example, stopped walking . This could not have been the
intention of the legislature when enacting regulation 16(2).
[193] Accordingly, I thus disagree with the defendants’ view that the plaintiffs did not
comply with regulation 16(2)(f) in that by being on the beach, they were not walking,
running or cycling. I find, rather, that the evidence shows that the plaintiffs in all
probability complied with regulation 16(2)(f) as they left their residence a short
distance away, to walk along the boardwalk of Muizenberg Beach , and were outside
within the 06h00 to 09h00 time-frame.
[194] Having regard to the above discussion and findings, I do not find that the
plaintiffs were outside their residence on 4 May 2020, for reasons other than the
physical exercise allowed by regulation 16(2)(f); in their case, walking. The argument
that they contravened or failed to comply with regulation 16(2)(f) is therefore
rejected.
The plaintiffs on the beach
[195] I do not intend to repeat the plaintiff’s explanation as to how they came to
be on the beach. Aspects as to where exactly B[...] placed the baby carrier at the
huts, how many police officers were in the vicinity, the distance from the ablution
block, are , in my view , not material . B[...]’s version that he put the carrier down,
removed their daughter, placed her opposite him and returned his attention to the
carrier, was not materially gainsaid. Furthermore, while C[...] stated that she was
next to him when he placed the carrier down, she then walked ahead and did not see
where he put the child when he removed her from the carrier. There is nothing
strange about this version.
[196] It must be remembered that at the time the plaintiffs testified, more than four
years had passed, and it is natural that witnesses do not remember every detail of
an event. It is important to also note that Naidoo did not see B[...] place the carrier
down, nor remove the child from the carrier . While Naidoo sought to suggest – in
fact, insist – that the toddler could not jump from the boardwalk to the beach (a
fact, insist – that the toddler could not jump from the boardwalk to the beach (a
height he estimated at 1,5 metres), this amounted to mere speculation.
[197] It must be remembered that it was put to C[...] that according to Naidoo, the
height from the boardwalk to the beach, on the date of the incident, was greater than
that depicted on the photographs . Thus, while the photographs are useful to show
the direction they walked, the boardwalk, the beach and overall assistance as to the
area of the incident, if the height from the boardwalk to the beach was different on 4
May 2020, then the photographs serve little purpose on the issue of the child’s
movement and ability.
[198] Furthermore, Naidoo’s view that the child could not have jumped from the
boardwalk, nor manage to enter the boardwalk on her own (thus implying that the
plaintiffs deliberately entered the beach with her rather than their version that she
must have run onto the beach) was largely based on the fact that he was a
grandfather of young grandchildren and knew how children would react.
[199] With respect to Naidoo, there was no evidence led in the trial as to the third
plaintiff’s physical build, how she would react if she were on the boardwalk, whether
the height from boardwalk to the beach was lower/varied in certain areas in the
vicinity in which she was placed, whether she was able to clamber down the
wooden steps unaided, and more. Importantly, there is absolutely no evidence that
she was hurt from a fall or received scrapes on her body due to climbing or jumping
down to the sand. Had that been the case, I would have been more convinced by
Naidoo’s views regarding the child’s ability or inability to move from the boardwalk to
the beach.
[200] Furthermore, aside from all the above issues, there is no indication of actual
height measurements from the boardwalk to the beach, and the Court was not
requested to conduct an inspection in loco of the boardwalk and beach area.
[201] Importantly, the uncontested evidence is that neither the plaintiffs nor Naidoo
saw or observed the third plaintiff’s movements. In fact, Naidoo only saw her when
saw or observed the third plaintiff’s movements. In fact, Naidoo only saw her when
she was already seated in the sand , and the plaintiffs, too . The plaintiffs’ evidence
that she started walking 6 months prior to the incident, spent practically every day at
the beach and regarded it as her playground , w as not gainsaid and must be
accepted. The evidence that it was not high tide at the time is accepted. Having
regard to the above facts, I find that the pl aintiffs’ version as to how events unfolded
from the time B[...] put down the baby carrier, to the moment the police ordered them
to leave the beach, to be the more probable.
[202] Furthermore, I do not accept Naidoo’s version that it was impossible for the
child to get to the sand because of the high drop to the sand. There is also no reason
to doubt B[...]’s version that when he turned to his daughter, she was already in the
sand. It means that she – in whichever way – managed to get herself from the
boardwalk onto the beach , unaided. C[...]’s testimony on the material aspect
supports or corroborates B[...]’s in that when she looked back from her position on
the boardwalk, her daughter was already seated in the sand.
[203] Ultimately, whether B[...] sat in the sand to try to remove the child and C[...]
bent down to speak and rationalise with her, it must be remembered that she was a
toddler at the time and may very well have resisted being removed from the beach.
To the extent that Naidoo seemed to want to comment on the parental skills of the
first and second plaintiffs in that B[...] did not simply grab his daughter and take
control of her , this is unhelpful, amounts to personal opinion which is not relevant
and does not persuade me that the plaintiff s’ versions as to how they came to be on
the beach, should be rejected as a fabrication.
[204] Considered holistically, the plaintiffs’ (particularly B[...]’s) version that they saw
their child on the beach and went to her to remove her from the beach, is accepted.
It therefore matters not whether he sat down or C[...] bent or knelt to calm their
daughter and explain why she could not be on the beach . This does not detract from
the common cause fact that the plaintiffs were on the beach, which was a prohibited
area in terms of lockdown regulation 24(2)(a).
[205] In all probability, their daughter clambered down from the boardwalk or
[205] In all probability, their daughter clambered down from the boardwalk or
jumped onto the sand and ran a short distance before B[...] and then C[...], realised
what had happened.
The commission of an offence/s
[206] The plaintiffs’ counsel submitted that his clients did not contravene regulation
24(2), as read with 24(1) and 31(2). He argued that regulation 24(2) does not say
that it is an offence to be on the beach. The submission is based on the view that
regulation 24 (1) and (2) cannot be interpreted to impose strict liability and that there
is no basis for the Court to find that the Legislature intended that culpability/inte ntion
should not be an element of the offence in relation to being on a prohibited area, the
beach.
[207] The submission is that the Legislature could never have intended to punish a
person for simply being on a beach, which was a prohibited or closed area/space ,
and that the plaintiffs could only be guilty of contravening regulation 24 (1) and
24(2)(a) if they had intended to be on the beach . In this regard, counsel for the
plaintiffs relies on the view held by author CR Sny man in Criminal Law 51 on the
topic of strict liability.
[208] I have considered Snyman’s view on the topic . He explains that strict liability
equates with liability where culpability is excluded . This is the case with statutory
crimes and not common law crimes 52. The author discusses the principles for
determining strict liability, the applicable rules and the criticism of strict liability.
[209] While Snyman’s views on strict liability may be correct – and I express no
opinion on it – there is a fundamental difficulty with the plaintiffs ’ submission that the
Legislature did not intend to impose strict liability (that is, no culpability) when it
enacted regulation 24. According to the plaintiffs, the regulation should be interpreted
as if strict liability is not an element of regulation 24(2)(a). The flaw in the argument is
this: the plaintiffs conflate their arrest by a peace officer in terms of section 40(1)(a)
51 7th Edition, 2020, Lexis Nexis Online Publication, p574-576
52 Criminal Law supra, p573
for breaching the regulation by being on a prohibited area, with their guilt in relation
to the offence created by regulation 24(2)(a) read with regulation 31(2).
[210] Simply stated, the entire argument on strict liability is focussed on how
nonsensical53 it is to suggest that the Legislature intended that parents of a child who
walk onto a beach to remove her because she unexpectedly ran onto the beach,
would be guilty of an offence. In my view, this is an incorrect approach to the
question as to whether an offence was committed in the presence of Naidoo, the
peace officer, which is the pertinent question to determine whether the arrest w as
lawful, or not.
[211] Thus, the issue on which the damages for unlawful arrest and detention is
based is not the guilt or innocence of the plaintiffs. For the determination of their guilt
on such statutory offence, the issue of strict liability may (or may not) arise, but
importantly, that question and determination would fall solely within the purview of
the Magistrates’ Court had the plaintiffs been prosecuted and the matter proceeded
to trial. My view, therefore, on the strict liability argument , is that it has no relevance
to the question of the lawfulness of the arrest and detention.
[212] Furthermore, the question of the Legislature’ s intention and whether it should
have expressly or otherwise included strict liability as an element of regulation 24(1)
and/or 24(2)(a), would have been best suited in an action or application against the
Minister of Co-operative Governance and Traditional Affairs, alternatively, in this
action with the Minister joined as the third defendant , which is not the case . The
attack on regulation 24 and/or the regulations applicable has also not been pleaded
in any way. Accordingly, the submission is misconceived and thus rejected.
[213] Regulation 24(1) and (2) deals with places and premises closed to the public.
It s tates that (inter alia) , beaches, a place normally open to the public, or where
It s tates that (inter alia) , beaches, a place normally open to the public, or where
53 Plaintiffs’ heads of argument, par 274-278
people gather, are closed and prohibited. It was submitted on behalf of the plaintiffs
that these two sub-regulations do not create an offence . Viewed in isolation, I would
agree that regulation 24(1) and (2)(a) do not create an offence.
[214] However, the submission fails to consider the provisions of regulation 31(2)
which reads as follows:
Offences and penalties
31. (1)…
(2) For the purposes of this Chapter, any person who fails to
comply with or contravenes the provisions of regulations
16(1), 16(2), 16(3) and 16(4) , 19, 24(1) and 24(2), 26(1)
and 26(2), 27 and 28(3) of these Regulations commits an
offence and is, on conviction, liable to a fine or to
imprisonment for a period not exceeding six months or to
both such fine and imprisonment.54
[215] Regulation 31 (2) makes non -compliance with regulation 24(1) and (2), a
criminal offence, punishable on conviction to a fine or imprisonment . Thus, contrary
to the plaintiff’s counsel’s submission, one cannot and should not read regulation
24(1) and (2) in isolation . The submission that th e Legislature could never have
intended to punish someone for simply being on a beach, which was closed or
prohibited, would be convincing if the incident occurred in “normal times”. However,
as is commonly accepted, and emphasised by both parties during the trial , the se
were “unprecedented times”, which were anything but normal.
[216] In May 2020, the Act and its regulations applied, and strict measures were
imposed through legislation to curb the spread of the Covid -19 virus. On reading
54 My emphasis
regulation 24(1) and (2), with regulation 31(2), there is no doubt at all that being on a
beach was prohibited under alert level 4 and any person found contravening these
regulations, could be charged with an offence and punished by law.
[217] Simply put, a previously normal or everyday activity such as entering or being
on a beach , was prohibited and punishable as an offence/crime. As the defendants’
counsel correctly submitted , new offences were created and the police had a
constitutional duty and obligation to enforce law and order.
[218] Having regard to the legislative prohibition and the wording of regulation 24(1)
and (2) read with regulation 31(2), my view is that the plaintiffs’ submission that
intent to enter the beach is necessary, is incorrect. More specifically, a ll that these
regulations require, is for a person to be on a beach, being a prohibited area, to be
considered to have committed the offence/breached the regulations. Whether the
person sits, stands or lies on the beach is immaterial, and so too, why and how they
came to be on the beach , and what their intention was, if any at all, on entering the
beach. Plainly stated, at the time, under alert level 4, the mere fact that a person was
on a beach, for whatever reason, was punishable as an offence.
[219] As Naidoo was the officer who saw the plaintiffs on the beach, he was entitled
in terms of the aforesaid regulations , read with section 40(1)(a) of the CPA and
section 205(3) of the Constitution , to arrest the plaintiffs, which he did. Section
40(1)(a) of the CPA , which is part of the defence relied upon in the Plea , allows a
peace officer to arrest a person without a warrant, where the person commits or
attempts to commit any offence in the officer’s presence. An offence is defined in
section 1 of the CPA as “an act or omission punishable by law ”. It is trite that there
are common law and statutory offences and this matter deals with a statutory
offence.
are common law and statutory offences and this matter deals with a statutory
offence.
[220] There is no doubt therefore, that being on the beach, a prohibited area, is a
statutory offence in terms of the regulation 31(2) . Thus, Naidoo, who was a peace
officer on 4 May 2020, and who observed the plaintiffs on the beach, was entitled to
arrest the m without a warrant as they committed the offence of being on the
prohibited area, in his presence. The action amounts to a breach of the regulations.
[221] The cross examination about Naidoo deciding that they were guilty and the
lengthy questioning about the plaintiffs’ guilt was consistently met with Naidoo stating
that it was not up to him to determine their guilt, but up to the Court. He was correct
on this aspect and maintained that he was entitled to arrest the plaintiffs who were in
breach of the regulations as aforesaid. My discussion and findings earlier on the
issue of strict liability and the guilt of the plaintiffs, refer.
[222] It is important to also emphasise that the offence created by regulation 24( 1)
and (2) as read with regulation 31(2) - being on a beach, which is a prohibited area -
constitutes an offence, as it is an act punishable by law . The next question is
whether the defendants have proved that the arrest and detention of the plaintiffs
were lawful.
Arrest and detention of the plaintiffs (Claim A)
[223] In Minister of Law and Order v Hurley 55, the Supreme Court of Appeal
(SCA) stated that:
“An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require that the person who
arrested or caused the arrest of another person should be ar the o nus of
proving that his action was justified in law.”
[224] An arrest and/or detention is/are thus regarded as being prima facie unlawful
as t he wrongfulness consists in the wrongful deprivation of a person's li berty56.
55 1986 (3) SA 568 (A) at 589E-F
Having regard to Minister of Safety and Security v Sekhoto 57, it is evident t hat
where the arrest and detention are admitted, or established, the onus of proving or
justifying the lawfulness of the arrest rests on the State, in this instance, the
defendants. In this matter, the arrests and detention of the plaintiffs are indeed
admitted, thus the onus rests with the defendants to prove that such arrests and
detention are justified and therefore lawful.
[225] Turning to the CPA, section 40(1)(a) reads as follows:
40 Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person –
(a) who commits or attempts to commit any offence in his
presence.
[226] With reference to Sekhoto58 and Duncan v Minister of Law and Order59, the
jurisdictional facts for a section 40(1)(a) defence are:
(i) the arrestor must be a peace officer;
(ii) an offence must have been committed or there must have been an
attempt to commit an offence; and,
(iii) the offence or attempted offence must be committed in the presence of
the peace officer.
[227] I am satisfied, from the evidence , the discussion and findings above, that the
defendants have indeed proved that: (i) on the date of the incident, Naidoo was a
56 See Amler’s Precedents of Pleadings Tenth Edition, LTC Harms and MR Townsend, P50
57 [2010] ZASCA 141para [7] and [8]
58 Supra
59 1986 (2) SA 805 (A) at 818G-H
peace officer60; (ii) the plaintiffs, by being on the beach, committed an offence; and
(iii) the offence was committed in Naidoo’s presence. Accordingly, I thus find that the
defendants have discharged the onus of proving the jurisdictional facts necessary for
a section 40(1)(a) arrest.
[228] This does not signal the end of the enquiry. Harms DP , writing for the SCA in
Sekhoto61, reminds us that once the jurisdictional facts are present, a discretion as
to whether to arrest or not to arrest, arises in favour of the peace officer. Significantly,
while lengthy cross examination ensued on whether Naidoo could and should have
acted differently , had acted irrationally and unreasonably , and should not have
arrested the plaintiffs, the Particulars of Claim are silent on the issue of the exercise
of Naidoo’s discretion to arrest; alternatively, it is not pleaded that Naidoo exercised
his discretion to arrest, irrationally or incorrectly.
[229] To be clear, on my reading of paragraph [57] of Sekhoto62, the SCA holds the
view that the question of the proper exercise of the peace officer’s discretion should
be raised on the pleadings. Similarly, in the more recent decision of Minister of
Police v Gqamane63, the SCA confirmed the approach in Sekhoto and held that:
“[17] The high court similarly conflated the onus to prove the
jurisdictional requirements to arrest (which rested on the appellant)
and the overall onus to prove other elements of the claim, including
improper exercise of discretion to arrest (which rested on the
respondent). Once the high court found that the jurisdictional
requirements to arrest the respondent were met, the appellant
discharged the onus, which rested on it to justify the arrest. This was
dispositive of the case pleaded by the respondent. The high court,
60 In terms of section 1 of the CPA, ‘peace officer’ includes any magistrate, justice, police official,
correctional official as defined in Section 1 of the Correctional Services Act, 1959 (Act 8 of 1959), and,
in relation to any area, offence, class of offence or power referred to in a notice issued under section
334(1), any person who is a peace officer under that section.
61 Supra, para [28]
62 Supra
63 2023 (2) SACR 427 at par [16] – [17]
however, despite finding that the trial court was correct regarding the
jurisdictional facts, held that it ought to have considered whether the
discretion was properly exercised. The implication of the decision by
the high court is that the onus to prove the proper exercise of the
discretion to arrest rested with the appellant rather than the
respondent. This is contrary to the decision in Sekhoto . The high court
erred on this score.”64
[230] Thus, in Gqamane, the issue of discretion to arrest was not canvassed on the
pleadings, there was a conflation between the onus to prove the jurisdictional
requirements to arrest and the onus to prove an irrational exercise of the police’s
discretion to arrest. It follows therefore from the SCA judgments that where a plaintiff
does not attack the discretion to arrest in their pleadings, and the defendant (State)
proves the jurisdictional requirements to justify the arrest , that is dispositive of the
claim for unlawful arrest and detention. Essentially it means that the Court is not
required to then embark on an enquiry as to whether the police exercised their
discretion to arrest, correctly and/or rationally. To do so, would imply that the onus to
prove the proper exercise of the police officer’s discretion to arrest, rests with the
State defendant, and not the plaintiff.
[231] This is the general principle on how to approach the discretion to arrest issue
in an unlawful arrest claim. In my view, w here Sekhoto goes further , is that in
paragraph [57] of the judgment , the SCA nonetheless takes cognisance of the fact
that even though the discretion to arrest issue was not raised on the pleadings, it
was also not ventilated in the trial. In Gqamane, the discretion issue was similarly
not pleaded and the appeal centred on the jurisdictional facts, which was not an
issue in the trial and it seems that a new case was argued on appeal.
64 My emphasis
[232] In view of the above discussion, while the exercise of Naidoo’s discretion to
arrest was not pleaded (not unlike in Sekhoto and Gqamane) the alleged
irrationality of Naidoo’s decision to arrest and the exercise of his discretion wa s fully
canvassed and ventilated at length during the trial 65. Thus, while mindful of the
general principle established by the SCA judgments, because the discretion to
arrest was dealt with in the trial, I address it below , and certainly for completeness’
sake. I am mindful, however, that the onus to prove that Naidoo improperly exercised
his discretion to arrest, remains with the plaintiffs , should have been pleaded, and
forms part of their overall onus to prove the elements of their claim for unlawful
arrest.
[233] Much was made during Naidoo’s cross examination as well as the questioning
of the plaintiffs, that they should not have been arrested because they are the
parents of a child who had entered the beach and they shortly thereafter, followed
her to remove her from the beach.
[234] It is evident from Sekhoto66, that when one considers the discretion of the
peace officer to effect an arrest or not to arrest, such decision must be informed by
his intention to bring the person (s) to justice. If, on the other hand, the decision to
arrest the person is informed or based on any other intention – for example, whether
to punish or frighten the person – then the peace officer has used his power to arrest
for an ulterior purpose. It cannot then be said that he had the intention to bring the
person to justice or to bring the person before Court.
[235] Counsel for the plaintiff s submitted that N aidoo was r equired to have
exercised his discretion rationally , and by arresting the plaintiffs for merely being on
the beach when they wished to r emove their child, he had acted unreasonably and
irrationally. Furthermore, it must be recalled that it was put to Naidoo during cross
irrationally. Furthermore, it must be recalled that it was put to Naidoo during cross
examination that a reasonable person would not have followed his protocol in the
65 Pleadings, A9 – A10
66 Supra, para [30] – [44]
circumstances, as it was unprecedented times and the arrests of the plaintiffs was
unreasonable.
[236] Naidoo stood firm on his decision to arrest the plaintiffs. He saw the plaintiffs
on the beach , observed that they were on a prohibited area according to the
regulations, and arrested them . He repeated that it was not up to him to state or
determine that they were guilt y of the offence, and that the object or purpose of the
arrest was to bring them before a Court, where they would be entitled to explain their
story or reason why they were on the beach.
[237] He te stified that it would be for the Court before whom they appeared , to
decide on the issue of their guilt. More than once, Naidoo emphasised the difference
between his role as the arresting (peace) officer, who observed the commission of an
offence which occurred in his presence, and the role of the Court, as the arbiter of
the plaintiffs’ guilt or innocence. In my consideration of this aspect, I agree with the
defendants that Naidoo is correct: the determination of guilt in relation to the breach
of regulations, lay with the Magistrate, not the police who observed the commission
of the breach/offence.
[238] In my view, while Naidoo was at times long -winded, irritable, had very strong
opinions on certain topics, assumed that the child could not by herself have left the
boardwalk and entered the beach, he remained steadfast on the reason for the
arrest, as well as his purpose or intention: that is, to bring the plaintiffs before Court.
He emphasised that as a police officer, he was obliged to act in terms of section
205(3) of the Constitution and cannot be faulted on this obligation.
[239] Returning to the plaintiffs’ view, c an it be said that Naidoo , because of the
pandemic and the general fear and uncertainty which gripped citizens during this
time, acted unreasonably by arresting the parents of a minor child for simply being
time, acted unreasonably by arresting the parents of a minor child for simply being
on a beach? To answer the question, I refer to Sekhoto, which is once again a
guiding light67. The peace officer is required to exercise his discretion as he sees fit,
as long as he stays withi n the parameters of rationality . He may have a number of
choices available to him to bring the person to justice , all of which fall within the
parameter of rationality.
[240] While Groves NO v Minister of Police68 dealt with an arrest with a warrant in
terms of section 43 of the CPA, the Constitutional Court visited the issue of an
arresting officer’s discretion in the judgment, as follows:
“[60] Applying the principle of rationality, there may be circumstances where
the arresting officer will have to make a value judgment. Police officers
exercise public powers in the execution of their duties and “[r]ationality
in this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the executive and other
functionaries”.69 An arresting officer only has the power to make a
value judgement where the prevailing exigencies at the time of arrest may
require him to exercise same; a discretion as to how the arrest should
be affected and mostly if it must be done there and then. To illustrate, a
suspect may at the time of the arrest be too ill to be arrested or may be
the only caregiver of minor children and the removal of the suspect
would leave the children vulnerable. In those circumstances, the arresting
officer may revert to the investigating or applying officer before
finalising the arrest.”70
(footnote retained)
67 Supra, para [39] – [44]
68 [2023] ZACC 36 par [60]
69 Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of the Republic
of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 90.
70 My emphasis
[241] It is evident from the abovementioned authorities , therefore, that the exercise
of a discretion by the arresting /peace officer must be guided by the normative
standard of rationality, which is seen as a “minimum threshold”. The dicta in Groves
NO as considered with Sekhoto, would therefore mean that Naidoo was required to
act rationally when e xercising his discretionary power to arrest the plaintiffs , and
should have exercised the discretion “within the limits of the authorising statute read
in the light of the Bill of Rights”.71
[242] Considered objectively, the prevailing exigencies at the time included the
following: (i) the police were empowered in terms of section 205(3) of the
Constitution to combat, uphold and enforce the law ; (ii) alert/lockdown level 4 had
recently come into effect, along with new statutory offences created by the
regulations; and, (iii) the regulations were required to be enforced in order to assist
the Government to combat the spread of the coronavirus.
[243] Added to the above prevailing factors, Naidoo was also faced, from his
vantage point on the boardwalk, with a couple and a young child, on the beach .
While I have found that it is irrelevant whether B[...] was seated on the beach or not,
from Naidoo’s perspective at the time, they were not leaving the beach and were
committing an offence.
[244] In my view, and having regard to Groves NO 72, the circumstances and
situation required of Naidoo to make a judgment call. In that respect, and as he
testified, the legislation prohibited anyone from entering a beach as beaches were
closed to the public during alert level 4 . He did not arrest the plaintiffs there and then
while on the beach or on the boardwalk, as he did not want to embarrass them in
public. On this aspect, it must be remembered that according to all the witnesses,
there was a lot of foot traffic on the boardwalk , so the area was busy . This was
71 Sekhoto supra, par [40]
72 Supra
understandable because it was within the window period wherein people were
allowed to be outside for the purposes of exercising.
[245] The plaintiffs were told to accompany him and Claasen to the back of the
ablution block, and he arrested them at the vehicles for being on the beach , having
also explained their rights to them. Thus, in the exercise of his discretion, and having
regard to their dignity and the fact that they were with a young child, Naidoo decided
not to effect the arrest in full view of other members of the public but to wait and do
so at the official vehicles.
[246] Naidoo thus exercised a discretion not only in deciding to arrest but also
deciding where to effect the arrest. It must be remembered that on the pleadings
and the evidence, it was not denied that the plaintiffs were on the beach. In their
testimonies, they also admitted knowing at the time, that being on the beach was
prohibited under the regulations. Given the prevailing circumstances and because
the plaintiffs had their child with them, the arrest was affected away from the public
eye.
[247] The plaintiffs plead that despite the police witnessing them enter the beach for
the sole purpose of removing their daughter who had entered the beach , they were
wrongfully and unlawfully arrested for breaching the regulations. This is the s ole
basis upon which it is pleaded that their arrest was unlawful.
[248] However, t he evidence considered holistically, does not support their
pleading. On their version, neither of the plaintiffs could say that Naidoo saw their
daughter enter the beach or move from the boardwalk onto the beach from his
vantage point. The distances testified to were not conclusive and Naidoo maintained
that when he first witnessed or saw the plaintiffs, they were already on the beach
with their child. At best, the plaintiffs assume that Naidoo and the other police officer
saw them enter the beach to remove their daughter. The more probable version is
Naidoo’s, particularly as the plaintiffs could not testify conclusively w here the police
were when they, separately, entered the beach to remove their daughter. Given the
pleadings and the evidence led in the plaintiffs’ case, I do not draw any negative
inference in respect of the failure to call Claassen as a witness for the defendants.
[249] It is understandable that the parents would focus solely on the ir child, and I
appreciate that at the time they testified, more than 4 years had passed since the
occurrence of the incident. On the evidence considered as a whole , I conclude that
the averment in the pleadings that the police witnessed them entering the beach is
not supported by the probabilities. As already indicated earlier, it must be
emphasised that the plaintiffs do not plead that Naidoo exercised his discretion to
arrest, irrationally.
[250] Interestingly, the plaintiffs attach “POC1”, the section 3 notice73 sent to SAPS
and the Provincial Commissioner in October 2020 . The legal representatives at
length set out the basis on which they claim the ir clients were unlawfully arrested
and detained. The only reference to “POC1” is found at paragraph 35 of the
Particulars of Claim in that they briefly refer to the fact that the notice was sent in
October 2020 and served. There is no indication in the Particulars of Claim that the
plaintiffs plead that the content of the notice is to be read or considered as if
incorporated in the pleading.
[251] In the notice, the plaintiffs allege that there was no need to arrest both
plaintiffs and that Naidoo could have issued either or both with a written notice to
appear in Court in terms of section 56 of the CPA , which it is alleged, the Act and
Regulations make provision for. In this regard, section 56 of the CPA requires the
arresting officer to believe on reasonable grounds that the M agistrate, on convicting
the person, will not impose a fine exceeding the amount determined by the Minister
the person, will not impose a fine exceeding the amount determined by the Minister
from time to time by notice in the Government Gazette and the peace officer may,
whether the person is in custody or not, issue a written notice to appear in Court.
73 Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
[252] For purposes of this judgment, I do not address what the Gazetted fine was in
May 2020. The point is that to suggest that it was not necessary to arrest both
plaintiffs, when the evidence is that both had transgressed the regulation, ma kes no
sense. Secondly, a s ection 56 written notice includes an endorsement that the
person may admit their guilt in terms of section 57 by paying an admission of guilt
fine. Had this occurred, the result would have been that both plaintiffs would have
had criminal records, a situation far worse than that which ultimately transpired when
Naidoo issued the section 72 warning to appear in Court74.
[253] The plaintiffs’’ attorney’s view in “POC1”, that Naidoo should have acted in
terms of section 56 , also ignores the fact that it would have required of Naidoo t o
have had a reasonable belief that on convicting the plaintiffs, the Magistrate would
not impose a fine exceeding the amount fixed by the Minister in the Government
Gazette. On this score, even if a section 56 notice was applicable, no evidence was
led by the plaintiffs as to the applicable fine as on 4 May 2020, and what Naidoo’s
reasonable belief was regarding the Magistrate’s imposition of a fine. Either way, the
suggestion regarding a notice in terms of section 56, did not preclude Naidoo from
acting in terms of section 40(1)(a) of the CPA.
[254] It is also stated that had Naidoo been empathetic and pragmatic, he would
have realised that there were insufficient grounds to arrest and charge the plaintiffs
in the first place. I do not agree with this statement. In the above discussion, the
offence of being on a prohibited area was committed in Naid oo’s presence and he
was therefore entitled to act in terms of section 4 0(1)(a) of the CPA. Once the
jurisdictional facts were present, Naidoo was entitled to exercise his discretion to
arrest. This was not a case, in my view, where there was no “just cause”75 , as the
attorney states, for arresting the plaintiffs.
attorney states, for arresting the plaintiffs.
74 See Mong v Director of Public Prosecutions and Another [2019] 4 All SA 447 (WCC) generally on
admission of guilt fines, procedure and the consequences of payment
75 POC1, par 13.1, A25
[255] Having regard to the views of the plaintiffs, the impression created is that the
police should simply have looked the other way or let them off the hook . While I
appreciate that the regulations brought about severe restrictions upon everyone, the
police were still required to act in terms of section 205(3) of the Constitution. Had this
incident occurred before or after the national state of disaster, there would have been
no action for unlawful arrest and detention.
[256] However, the incident occurred during the level 4 lockdown, which made
being on a beach, one of the prohibited area s according to regulation 24(2)(a) to (k),
a criminal offence, punishable by law. To the extent that Naidoo may not have asked
for an explanation as to why the plaintiffs were on the beach, a failure to do so does
not render his decision to arrest, irrational, nor does it make the arrest unlawful. I
have been referred to Syce and Another v Minister of Police 76, a recent SCA
judgment which dealt with the discretion to arrest in terms of section 40(1)(b).
[257] The reference to Syce77 is to support the plaintiffs’ view that Naidoo was
required to enquire as to the reason why the plaintiffs entered the beach as this
could amount to an exculpatory explanation to be investigated by the police officer78.
I do not understand Groves NO 79, which is referred to in Syce, to mean that the
arresting officer is obliged to embark on an enquiry or explanation for the plaintiffs ’
conduct. The officer has a discretion, and an explanation is but one of the facts upon
which he may base his decision to arrest. The fact that Nai doo may not, at the
beach, have enquired as to the plaintiffs’ reason for entering the beach, does not
make his decision to arrest, irrational.
[258] In Syce, the plaintiff wished to walk to his girlfriend, which the officer refused.
His pleadings were amended and this formed the attack on the lawfulness of his
76 [2024] ZASCA 30 para [22]-[23]
77 Supra
76 [2024] ZASCA 30 para [22]-[23]
77 Supra
78 Supra, par [22] which refers to Groves NO, par [35]
79 Supra
arrest.80 In this matter, the plaintiffs made much about the fact that C[...] could not
travel with B[...] in the police van; that her request to walk to the police station was
refused; that a car seat was not provided , and that his parents could not collect their
daughter. None of these factors render the arrest unlawful, nor form the basis of a
finding that Naidoo exercised his discretion irrationally.
[259] It must be remembered that regulation 16 controlled the movement of people,
and in terms of regulation 16(2)(e), children could only be moved, as allowed by the
provisions of regulation 17, which largely speaks of a child’s movement in the
context of parent al rights and responsibilities in terms of the Children’s Act 38 of
2005. Unless the grandparents or B[...]’s sister were caregivers within the prescripts
of the Children’s Act, they were not allowed to collect the child from the police
station. Perhaps more importantly, aside from the limited window to be outdoors
between 06h00 to 09h00 , it is important to note that regulation 16(1) made it
compulsory at the time, that everyone was confined to their place of residence81. The
refusal to allow family members at the police station was thus a rational decision,
based on the regulations and the police cannot be faulted for such refusal.
[260] The argument th at a reasonable person would not have followed Naidoo’s
protocol is unconvincing. In my view, Naidoo made a judgment call, as Groves NO82,
put it. He considered various factors, the circumstances prevailing at the time, the
law, his role as an enforcement officer, the dignity of the plaintiffs, the regulations, the
need to combat the spread of the virus , and ultimately exercised a discretion to
arrest. I am of the view that , given the statutory offence created by regulation 31(2),
of which Naidoo was aware because he regarded being on the beach as a serious
offence, that in the circumstances, the exercise of Na idoo’s discretion, was indeed
offence, that in the circumstances, the exercise of Na idoo’s discretion, was indeed
objectively and properly informed. The nature of the offence attracts a fine or
imprisonment not exceeding 6 months, so Naidoo was not incorrect to regard it as a
serious offence.
80 Supra, par [21]
81 My emphasis
82 Supra
[261] The reference by the plaintiffs’ counsel to regulation 23 does not assist the
plaintiffs’ case as this regulation refers to the banning of gatherings at funerals, a
workplace and the like, that an enforcement officer must order the gathering to
disperse and if there is a refusal, the officer must act in terms of the CPA by arresting
and detaining the persons. Regulation 23 does not have a bea ring on the
circumstances in this matter which involved two private individuals and th eir minor
child, and not a gathering . To the extent that counsel for the plaintiffs referred to
schedule 1 offences as being more serious, again my view is that this is not relevant
as the arrest occurred in terms of section 40(1)(a) and not 40(1)(b).
[262] Having regard to the evidence , the applicable authorities and probabilities, I
am satisfied that Naidoo exercised his discretion to arrest rationally, and, in the
circumstances, I thus find that the plaintiffs have failed to discharge the onus on
them to prove that Naidoo exercised his discretion to arrest, improperly or irrationally.
The evidence indicates that Naidoo informed the plaintiffs that he was arresting them
for breaching the lockdown regulations in that they were on a beach. Both plaintiffs
understood this, though it took some time for these admissions to be made in the
trial.
[263] It is commo n cause that the section 35 notice and the warning to appear in
Court only partially had the description of the offence correct. In my view, this error or
oversight did not render the arrest and detention unlawful . Accordingly, I find that the
plaintiffs have failed to prove that their arrest was unlawful.
[264] As for the detention, the plaintiffs ’ correspondence and Particulars of Claim
indicate that they were detained for about 6 hours at the police station. This is clearly
untrue, as the Occurrence Register indicates that they were released at 12h00 83 and
83 Exhibit A, p89-90
they admitted during the trial that they were at the police station for about 3 to 3 and
a half hours before being released on a warning in terms of section 72 of the CPA
(SAPS 496).
[265] It is also untrue and incorrect that B[...] was at the back of the police van with
other persons already in the van, as he alleged . During the trial he admitted that he
was alone in the van, thus the averment that he was at risk of contracting the virus
as he was confined with other persons at the back of the van , is not sustained.
Furthermore, B[...] had not seen C[...] enter the police vehicle, thus the statement in
his contemporaneous social media post made while seated in the van, that she was
pushed into the police vehicle while breastfeeding, is also untrue.
[266] Similarly, the averments that the plaintiffs were “detained, along with other
members of the public, in a confined area of the Police Station” 84, is not only a
fabrication but quite an exaggeration. The undisputed evidence is that the plaintiffs
were seated in a large boardroom with Naidoo at some distance from them, while he
processed them and answered their questions. The boardroom as shown in the
photographs, contains several tables and chairs and certainly appears very
spacious. Aside from one or two officers entering at odd occasions, briefly, no one
else was with them and Naidoo for the duration of the time spent in the boardroom.
The only time they encountered other members of the public was when they stood in
the passage, and that can surely not be construed as being detained in a confined
space with other people.
[267] It is also undisputed that the plaintiffs’ constitutional rights were explained to
them. While not making light of Naidoo’s failure to wear a mask , he maintained that
social distancing protocols were enforced in the boardroom and he was 1, 5 metres
from the plaintiffs during the processing . The evidence also indicates that the
from the plaintiffs during the processing . The evidence also indicates that the
plaintiffs wore masks during their interaction at the police station, so for all intents,
84 POC, par 17
they were suitably protected against the public and any officers who were not
observing the PPE protocol. The evidence from the plaintiffs is th at C[...] breastfed
her daughter to calm her . Naidoo confirms that she breastfed the child throughout
the period at the station. There is no evidence to indicate that they did not have
access to restrooms.
[268] From the transcript of B[...]’s audio recording in the boardroom, there is no
indication from any of the parties that the child was in distress or discomfort. Aside
from a concern about the consequences of a Court appearance, the outcome of the
incident as it relates to C[...]’s visa, and the risk of contracting the virus , there is no
evidence that the plaintiffs endured any hardship, brutality or infringement of their
rights. Accordingly, f rom the accepted evidence, I find that the detention of the
plaintiffs in the boardroom and smaller room for a period of 3 to 3 and a half hours,
was lawful.85
Breach of constitutional rights (Claim A)
[269] The plaintiffs submit that the matter concerns the ir cruel, inhumane and
degrading treatment at the hands of the Muizenberg SAPS, specifically Naidoo 86. In
their heads of argument, they abandon the claim for constitutional damages based
on the averments that the police harassed them after they left the police station
(Claim B).
[270] The breach of constitutional rights claim thus only applies to Claim A 87 and
relates to their constitutional right to dignity in that the police’s actions in arresting
85 Exhibit A, p79-82
86 Plaintiffs’ heads of argument, par 2
87 POC, A11, para 21-23
them, placing them in vehicles, not wearing masks , and detaining the plai ntiffs with
other members of the pubic in a confined space, allegedly infringed such right. I have
already addressed the evidence regarding being arrested, p laced in vehicles and
exposure to the virus.
[271] Both plaintiffs wore masks and because the police station was a public
building, the version of the defendants that it was a safe zone, that social distancing
in the boardroom was maintained and the building was sanitized, is the more
probable version. On this aspect, the plaintiffs confirmed that they did not contract
the virus after being released from the police station.
[272] To the extent that evidence was l ed that C[...] was forced to breastfeed in
public, with respect, it must be remembered that she testified that she started
breastfeeding the child from the time they left the beach and entered the boardwalk
again and continued to breastfeed her throughout the processing. The photographs
taken by B[...] of C[...] breastfeeding in the police station, depict her wearing a mask
and standing at the entrance to the boardroom and seated at a table , in a room at
the police station. On the evidence, there is no basis to find that the police somehow
forced C[...] to breastfeed her daughter in full view of other people. I appreciate that
she was concerned for her daughter ’s wellbeing , but there is simply no evidence
which warrants a finding that the police’s actions imposed on her dignity in any way
in this regard.
[273] I state respectfully that having arrested the plaintiffs, the police could not, in
view of the regulations, allow the child to be handed over to family, so it followed that
the mother and child were together. As for C[...]’s privacy and dignity while
breastfeeding, the transcript of the first recording indicates that B[...] handed over his
jersey or jacket to C[...].
[274] The plaintiffs seem to fail to appreciate that they were at a police station and
had been arrested. They were not placed in any holding cells, and were free to move
around the large boardroom , and were eventually shown to another room before
being allowed to leave the station. In my view, any indignity would potentially have
arisen if they were placed in holding cells, where conditions are often unsanitary. In a
holding cell, all three plaintiffs would have been exposed to any other person already
in the cell . As it was, they were in a large room which was sa nitised, and where no
other members of the public were present.
[275] The plaintiffs also testified that they were fearful and that there was police
brutality. On the latter aspect, the oral and documentary evidence does not in any
way suggest police brutality. On my reading of the first part of the transcript of B[...]’s
recording on arrival at the police station, Naidoo is heard calling for joggers and
anyone else outside after 09h00, to be arrested and be made an example of. These
statements, objectively considered, had no bearing on the plaintiffs, who were
already arrested by then. The statement did not apply to them.
[276] The issue of the flagging of C[...]’s visa was consistently denied by Naidoo .
Naidoo persisted that he had no authority to make endorsements on her visa and in
all probability, as a police officer, he may not have had that authority, but the second
part of the transcript is insightful. It is evident t hat there was engagement between
Naidoo and the plaintiffs. C[...] asked what would occur if she were out of the country
on her Court date and Naidoo explains that a warrant of arrest would be issued for
her, that it is a serious thing and that she would be flagged that there is a pending
case. He then attempts to enlist B[...]’s assistance to impress upon C[...] how serious
the situation was.
[277] Naidoo’s statements were generally correct. Procedurally, had C[...] not
[277] Naidoo’s statements were generally correct. Procedurally, had C[...] not
attended Court, the prosecutor would have requested that the Magistrate authorise a
warrant for her arrest as she was issued with a section 72 notice to appear and failed
to appear. The reality would have been that on arrival in South Africa, with a warrant
of arrest circulating, she would or could have been arrested at the airport. Thus,
Naidoo’s emphasis on the seriousness of the situation in no way amounts to police
brutality or an attack on the plaintiffs’ dignity. While he was perhaps not subtle, the
information which he presented to the plaintiffs was correct.
[278] As for the discussion in the boardroom regarding the uncertainty about an
alternative charge and fine, these aspects in no way breached any constitutional
rights to dignity. I agree with the defendants’ counsel’s submission that either the
plaintiffs misunderstood Naidoo or they feared the worst-case scenario. Nowhere in
the transcript of B[...]’s recording does Naidoo make any reference to C[...] being
deported and in fact she enquires about what would happen if she was out of the
country when she was due to appear in Court. As stated, Naidoo, perhaps brusquely
and inelegantly, explains the consequences to her, as any police officer should.
[279] Lastly, the plaintiffs also take issue with Naidoo for stating that he was sure
the breach of regulations (being on a beach) charge would “stick”. I do not consider
this to amount to a threat; more a matter-of-fact comment by an arresting officer
faced with a barrage of questions by people he had arrested.
[280] In my view, while I appreciate that the plaintiffs were fearful and anxious, the
evidence does not support a finding that their right to dignity was infringed in the way
pleaded and expanded on in the trial. Nor was there any basis whatsoever to believe
that Naidoo would seek revenge, somehow or the other. As things turned out, the
charges were withdrawn about three weeks after the incident . The plaintiffs were
notified thereof yet decided to leave South Africa. This decision, as well as the break-
up of their relationship, cannot be attributed to any conduct by the police in arresting
them for breaching the lockdown regulations nor any conduct by the defendants. In
conclusion, I thus find that the plainti ffs have not discharged the onus of proving a
conclusion, I thus find that the plainti ffs have not discharged the onus of proving a
breach of their constitutional right to dignity.
Malicious and wrongful legal proceedings (Claim B)
[281] The plaintiffs plead that Naidoo u nlawfully and maliciously processed and
charged the plaintiffs for contravening the regulations and when doing so, he had no
reasonable and probable cause for doing so , no reasonable belief in the truth of the
information relied on by him, and as a result, the plaintiffs were required to appear in
the Muizenberg Magistrates’ Court, employ the services of an attor ney to represent
and defend them, and on 26 May 2020, the State withdrew the charges on the basis
that there was no evidence in law or in fact that either of them contravened the
regulations and/or that they had valid defence to the contravention of the regulations.
[282] It is evident from Minister of Justice and Constitutional Development and
others v Moleko88 and Rudolph and Others v Minister of S afety and Security
and Others89 , that the malicious proceedings refer to a malicious prosecution of the
plaintiffs. While the defendants argue that the National Prosecution Authority should
have been joined for such a claim, I disagree. It is evident from Rudolph90 that a
police officer who arrests and charges a person is regarded as having initiated the
criminal proceedings against the arrested person.
[283] The requirements to successfully prove such claim are: (i) the defendants set
the law in motion; (ii) the defendants acted without reasonable and probable cause;
(iii) the defendants acted with malice, and (iv) the prosecution failed 91. I need not
follow a detailed discussion of these requirements or elements of the claim. I have
no difficulty in finding that the plaintiffs have proved the first element. The problem
lies with the remaining three elements.
[284] In respect of the second element, t hat the defendants acted without
reasonable and probable c ause, t here must be an honest belief, founded on
reasonable grounds that the institution of the proceedings is justified , and the
officer’s conduct must have been objectively reasonable 92. In this regard, Naidoo
officer’s conduct must have been objectively reasonable 92. In this regard, Naidoo
88 2009 (2) SACR 585 (SCA) para [10], [17]
89 2009 (5) SA 94 (SCA) par [16]
90 Supra, par [19]
91 Moleko supra, par [8]
92 Prinsloo and Another v Newman 1975 (1) SA 481 (A) 495H
made it clear that he was of the view that the main charge, breaching the regulations
by being on the beach, would “stick” . His arrest was based on his observations that
the plaintiffs were on the beach and exercising a discretion to arrest. In this regard,
reasonable probable cause existed for the arrest and charge (thus, for putting the
legal criminal proceedings in motion ). In this regard, I find that the plaintiffs failed to
prove the second element.
[285] The requirement that Naidoo acted with malice has not been proved on the
objective evidence. Naidoo did not know the plaintiffs and was on the boardwalk with
colleagues to do foot patrols . The plaintiffs’ complaint that he was out to arrest
joggers after 09h00, and that there were incidents at the police station, in no way
convinces me that he had deliberately set out to injure the plaintiffs, or wrongly arrest
them, or set about to maliciously charge them. Issues related to the Muizenberg
police station, as relayed in the media articles, do not support the plaintiffs’ case in
the malicious prosecution claim.
[286] As for proving that the prosecution failed, it bears mentioning that there was
no failure of prosecution. In other words, there was no trial and subsequent acquittal
of the plaintiffs on the criminal charge . Nor was any evidence presented that the
State withdrew the charge because, as pleaded, there was no evidence in law or fact
that they contravened the regulations and that they had a valid defence to the
charge. The email from the prosecutor to Mr Riley certainly does not indicate the
basis upon which the charge(s) was withdrawn. It may have been for humanitarian
grounds or for any other reason which informed the prosecutor’s decision . Hence,
there was no failure of the prosecution: there was no prosecution and the matter was
never placed on the Court roll.
[287] In view of my findings, I conclude that the plaintiffs have failed to prove that
[287] In view of my findings, I conclude that the plaintiffs have failed to prove that
the defendants set in motion a malicious prosecution against them.
[288] As for wrongful legal proceedings, no such case is pleaded even though the
heading under Claim B reads Malicious and Wrongful Proceedings . There is no
averment that the charge(s) were false or fabricated.93
Conclusion and costs
[289] In view of the evidence and above findings, I conclude that the plaintiffs
have failed to make out their claims for damages based on unlawful arrest and
detention, a breach of constitutional rights, and malicious and wrongful legal
proceedings, as set out in their Particulars of Claim . Accordingly, the discussion on
quantum is thus not necessary, and the plaintiffs’ claims shall be dismissed. Costs
shall follow the result.
Order
[290] In the result, the following is granted:
The plaintiffs’ claims (claims A and B) are dismissed with costs including the costs of
counsel on scale B.
__________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiffs: Adv K Felix
93 Amler’s supra, p261-261
Instructed by: C & A Friedlander
Cape Town
Per: Ms A Stucke
For Respondent: Adv T Steyn
Instructed by: State Attorney
Cape Town
Per: Mr L Mtshemla