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[2018] ZASCA 97
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Minister of Police and Another v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 842/2017
In the matter between:
MINISTER
OF POLICE
FIRST
APPELLANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
SECOND APPELLANT
and
SIPHO
ZWENI
RESPONDENT
Neutral
citation:
Minister
of Police and another v Zweni
(842/2017)
[2018] ZASCA 97
(1 June 2018)
Coram:
Ponnan,
Willis and Mbha JJA and Makgoka and Hughes AJJA
Heard:
23
May 2018
Delivered:
01
June 2018
Summary:
Delictual
claim – unlawful arrest and detention – whether detention
after lawful arrest but before first court appearance
unlawful –
whether further detention after first court appearance unlawful.
ORDER
On
appeal from:
The
Eastern Cape Division of the High Court, Port Elizabeth (Malusi AJ
sitting
as
court of first instance):
1.
The appeal succeeds with costs, including the costs of two counsel.
2.
Paragraph 1 of the order of the high court is set aside and
substituted with an order in the following terms:
‘
a)
The plaintiff’s claim is dismissed with costs.’
3.
The cross-appeal is dismissed with costs, such costs to include the
costs of two counsel.
JUDGMENT
Hughes
AJA (
Ponnan,
Willis and Mbha JJA and Makgoka
AJA
concurring):
[1]
The
respondent, Sipho Zweni, instituted an action against the appellants,
the Minister of Police and the National Director of Public
Prosecutions, claiming damages for: (a) unlawful arrest; (b) unlawful
detention from the date of his arrest, namely 23 September
2010 until
his first appearance in court on 27 September 2010; (c) unlawful
detention from his first court appearance until his
acquittal on 14
February 2012; and (d) malicious prosecution.
[2]
The court a
quo (Malusi J) dismissed all of the respondent’s claims, save
for (a) and awarded him damages in respect of that
claim in the
amount of R100 000. With the leave of this court, the appellants
appeal against the high court’s order
on that score and the
respondent cross-appeals against the dismissal of his claim (c).
[3]
The facts
giving rise to the respondent’s claims were these: A female
child aged 11, alleged that she was raped on 20 September
2010 by the
respondent, who was then 47 years old, in the bedroom of his home.
Constable Gregory Harry, who was stationed at the
Motherwell police
station, was the officer who effected the arrest of the respondent on
23 September 2010. He testified that the
complainant, her mother and
another female arrived at the police station to report the incident.
Thereafter, he proceeded to the
home of the respondent together with
the trio, where the complainant identified the respondent as her
rapist. He thereafter effected
the arrest of the respondent.
[4]
The
respondent was taken to the Motherwell police station, processed and
detained. His first court appearance was on 27 September
2010 and
thereafter he was detained at St Alban’s prison. On 7 October
2010 the respondent’s first formal bail hearing
commenced,
which he abandoned on 11 October 2011. He made a second application
for bail on 2 March 2010, which failed. He thereafter
remained in
custody until his acquittal on 14 February 2012.
[5]
In finding
for the respondent in respect of (a) the high court stated:
‘
The
initial detention of the plaintiff is on an entirely different
footing. It was foreshadowed in the particulars of claim that
the
plaintiff asserted his initial detention to be unlawful. Despite this
the
defendant led no evidence whatsoever
to
justify the plaintiff’s initial detention
.
The justification for detention after an arrest until the first
appearance in court continues to rest on the police.’ [My
emphasis]
[6]
I do not
agree with the court a quo that the appellants produced no evidence
whatsoever to justify the respondent’s initial
detention. Harry
testified:
‘…
Well,
firstly it’s a Schedule 6 offence, a very serious offence. And
I don’t have the authority or the mandate to give
a suspect a
warning to appear in court that would only be the court’s
decision. Secondly, the suspect was positively identified
by the
victim as the person that raped her. And thirdly the distance
between…the close proximity between the suspect and
the victim
was also a major concern for us.’
[7]
It came to
be accepted during argument on appeal that the respondent’s
arrest was lawful. It must follow that his initial
detention must
also have been lawful.
[1]
And,
as Van Heerden JA explained in
Duncan
v Minster of Law and Order
1986 (2) SA 805
(A) at 821B-C:
‘…
It
is only when a policeman…has subsequent to the arrest, but
whilst the arrestee is still lawfully detained, reached the
conclusion that
prima facie
proof of the arrested person’s guilt is unlikely to be
discovered by further investigation that it is his duty to release
him from custody…’
Here,
there was no such evidence.
[8]
Turning to
the cross-appeal: The respondent was charged with rape, which is a
Schedule 1 and 6 offence in terms of the Criminal
Procedure Act 51 of
1977 (the Act). In
Minister
of Safety and Security v Sekhoto
[2010] ZASCA 141
;
2011 (1) SACR 315
(SCA) at paras 42 and 43 Harms DP
stated:
‘
[42]
While it is clearly established that the power to arrest may be
exercised only for the purpose of bringing the suspect to justice
the
arrest is only one step in that process. Once an arrest has been
effected the peace officer must bring the arrestee before
a court as
soon as reasonably possible and at least within 48 hours (depending
on court hours).
Once that
has been done the authority to detain that is inherent in the power
to arrest has been exhausted. The authority to detain
the suspect
further is then within the discretion of the court.
[43]
The discretion of a court to
order the release or further detention of the suspect is subject to
wide-ranging – and in some
cases stringent – statutory
directions. Indeed, in some cases the suspect must be detained
pending his trial, in the absence
of special circumstance
…’
[My emphasis]
[9]
The
respondent’s release from custody after his arrest was subject,
as the court a quo pointed out, to section 60(11)(a) of
the Act. That
provision reads:
‘
Notwithstanding
any provision of the Act, where an accused is charged with an offence
referred to –
(a)
In Schedule 6, the court shall
order that the accused be detained in custody until he or she is
dealt with in accordance with the
law, unless the accused, having
been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that exceptional
circumstances exist which in the
interest of justice permit his or her release;’
[10]
The
respondent’s detention after his first appearance in court is
dependent upon the lawfulness of the magistrate’s
orders. There
is no evidence that any of the magistrates who presided in the
respondent’s criminal case behaved in an unlawful
manner. In
any event, a magistrate is not a servant of, and no liability can be
attributed to the first appellant for such conduct.
[2]
Moreover, in both the aborted, first and the failed, second
application for bail, the respondent would hardly have been able to
satisfy the court that there were exceptional circumstances present
that justified his release, particularly since the respondent
already
had a previous conviction for the rape of a minor child. That factor
he would have been obliged to disclose to the court
seized with the
bail application. It follows that in finding that his continued
detention was not unlawful, the high court cannot
be faulted. In the
result the cross-appeal must fail.
[11]
Accordingly,
the following order is made:
1.
The appeal succeeds with costs, including the costs of two counsel.
2.
Paragraph 1 of the order of the high court is set aside and
substituted with an order in the following terms:
‘
a)
The plaintiff’s claim is dismissed with costs.’
3.
The cross-appeal is dismissed with costs, such costs to include the
costs of two counsel.
___________________
W Hughes
Acting
Judge of Appeal
APPEARANCES
For
the Appellant:
A Beyleveld SC (with him B Naran)
Instructed
by:
State Attorney, Port Elizabeth
State
Attorney
s
,
Bloemfontein
For
the Respondent:
B Dyke SC (with him E Dyer)
Instructed
by:
O’Brien Incorporated, Port Elizabeth
Honey
Attorneys, Bloemfontein
[1]
Minister of
Safety and
Security v Magagula
(991/2016)
[2017] ZASCA 103
(6 September 2017) para 15.
[2]
Minister of
Safety and
Security v Magagula
para
16.