Botha v Minister of Safety and Security and Others; January v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Citation: 2012 (1) SACR 305 (ECP)

Botha v Minister of Safety and Security and Others;
January v Minister of Safety and Security and Others
2012 (1) SACR 305 (ECP)

2012 (1) SACR p305

Citation	2012 (1) SACR 305 (ECP)
Case No	575/2009 and 576/2009
Court	Eastern Cape High Court, Port Elizabeth
Judge	Tshiki J
Heard	November 11-23, 2010; November 24, 2010
Judgment	April 1, 2011
Counsel	GG Goosen SC (with PN Kroon and A Rawjee) for the excipients (defendants).; CJ Mouton SC (with LD Ah Shene) for the respondents (plaintiffs).

Flynote : Sleutelwoorde

Arrest — Without warrant — Further detention of accused — Obligatory for police C to establish justification for such further detention — Constitution, 1996, ss 7, 8, 10 and 12 — Information relating thereto to be relayed to public prosecutor — Prosecutor, after applying mind to matter, to be in informed position whether or not to apply for further detention of accused — Police officer investigating case should be in position to inform prosecutor about D strength or otherwise of case — Failure of police officer so to apply his mind could result in further detention being contrary to applicable constitutional provision and being declared unlawful.

Prosecution — Prosecutor — Powers and duties of — Prosecutors to carry out E public functions independently and in interests of public — Must act in accordance with requirements of Constitution, 1996 — Must also have regard to rights of accused, including right to bail and not to be detained arbitrarily and without just cause — Information to be supplied to court in bail proceedings can but come from prosecutor — Latter having duty to place before court any information relevant to court's exercising of discretion with regard to grant or refusal of bail. F

Headnote : Kopnota

The provisions of ss 7, 8, 10 and 12 of the Constitution, 1996, make it obligatory for police officers to first establish the legal justification for the further detention of a person arrested without warrant and detained so as to relay G such information to the public prosecutor and the latter would then, after applying his mind to the matter, be in an informed position whether or not to apply for the further detention of the person in custody. It is the police official investigating the case who should be in a position to, and must, inform the prosecutor about the strength or otherwise of his or her case. Failure by the police officer to apply his mind in this manner could result in H the further detention being contrary to the constitutional provisions and liable to be declared to be unlawful. (Paragraph [31] at 317e–g)

Relative to the prosecutors, they owe a duty to carry out their public functions independently and in the interests of the public. In doing so he or she is obliged to act in accordance with the requirements of the Constitution and I has to have regard to the rights of the accused person. Such rights include the accused's rights to bail and not to be detained arbitrarily and without just cause. Although the question of bail consideration is pre-eminently a matter for the judicial officer, the information furnished to the judicial officer can but come from the prosecutor. The latter has a duty to place before court any information relevant to the exercise of the discretion with regard to the granting or refusal of bail. (Paragraph [32] at 317g–318a.) J

2012 (1) SACR p306

Annotations:

Cases cited

Reported cases

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255): dictum in para [68] applied A

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995): applied B

Dusheiko v Milburn 1964 (4) SA 648 (A): dictum at 658A applied

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): dictum in para [60] applied

Glaser v Heller 1940 PH F119 (C): applied C

Government of the Republic of South Africa v Basdeo and Another 1996 (1) SA 355 (A): considered

Kahn v Stuart and Others 1942 CPD 386: dictum at 391 applied

Knop v Johannesburg City Council 1995 (2) SA 1 (A): considered

Lewis v Oneanate (Pty) Ltd and Another 1992 (4) SA 811 (A): applied D

McKelvey v Cowan NO 1980 (4) SA 525 (Z): dictum at 525 applied

McKenzie v Farmers Co-operative Meat Industries Ltd 1922 AD 16: dictum at 23 applied

Minister of Correctional Services v Tobani 2003 (5) SA 126 (E) ([2001] 1 All SA 370): dictum at 135B – C applied

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): considered E

Minister van Polisie v Ewels 1975 (3) SA 590 (A): considered

Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ) (2009 (6) SA 82): applied

Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others F 1990 (4) SA 749 (N): dictum at 755B applied

Pete's Warehousing and Sales CC v Bowsink Investments CC 2000 (3) SA 833 (E) ([2002] 2 All SA 266): applied

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771): dictum in para [11] applied

Sex Workers Education and Advocacy Task Force v Minister of Safety and G Security and Others 2009 (2) SACR 417 (WCC) (2009 (6) SA 513): dictum in para [29] applied

South African National Parks v Ras 2002 (2) SA 537 (C) ([2001] 4 All SA 380): dictum at 542E – G applied

Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A): applied

Tobani v Minister of Correctional Services NO [2000] 2 All SA 318 (SE): H dictum at 323b – e applied.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, ss 7, 8, 10 and 12: I see Juta's Statutes of South Africa 2010/11 vol 5 at 1-27.

Case Information

Exceptions to the plaintiffs' particulars of claim. The nature of the pleadings appears from the reasons for judgment.

GG Goosen SC (with PN Kroon and A Rawjee) for the excipients (defendants).

CJ Mouton SC (with LD Ah Shene) for the respondents (plaintiffs). J

2012 (1) SACR p307

Cur adv vult.

Postea (April 1).

Judgment

Tshiki J:

(A) Introduction

[1] Both plaintiffs in case Nos 575/2009 (Botha) and 576/2009 (January) were, on 16 March 2008, arrested without a warrant on a charge of murder, and were detained in custody until their first appearance in court on 19 March 2008. On the latter date they were both remanded in C custody to 18 April 2008 when Mr Botha was released on bail, and the charges were withdrawn against Mr January. They are both suing the same defendants for delictual damages arising out of their alleged unlawful arrest and detention up to 19 March 2008, and further detention until their release on 18 April 2008. Plaintiffs' initial arrest and detention were effected by a policeman, and their further detention from D 19 March to 18 April 2008, having been applied for by the prosecutor, was authorised by the magistrate before whom they appeared in court.

[2] The allegations made by the plaintiffs in the above two matters are almost identical and are directed against the same defendants. The E exception by the first defendant to the plaintiffs' particulars of claim in each case is based on the same grounds. Therefore, I have been requested by the parties to prepare one judgment in respect of the two matters and I agree that there would be no prejudice to anyone if I prepare and write one judgment in respect of the two exceptions. In any event, it would be convenient and cost-effective for the parties if I do so. F

(B) Exceptions

[3] The controversy between the plaintiffs and the first and fourth defendants arises, and the exceptions relate, to the plaintiffs' allegations G regarding the second detention from 19 March 2008 to 18 April 2008. With regard to the second detention, plaintiffs seek to hold the first and fourth defendants jointly and severally liable.

[4] It is the plaintiffs' contention in the particulars of claim that the arresting officer and/or any other unknown policeman involved in the H purported investigation against the plaintiffs knew, alternatively ought to have known, that no reasonable, objective grounds or justification existed for their subsequent and continued detention. They could easily have ascertained by the taking of simple investigative steps that no such grounds or justification existed but failed to take any such steps. They, I therefore, failed in their duty to inform the relevant prosecutors dealing with the matter that there were no grounds or justification and indeed no objective facts reasonably linking the plaintiffs to the alleged murder. Consequently, plaintiffs contend that the police failed to take any steps whatsoever to ensure that the plaintiffs were released from detention as soon as possible. J

2012 (1) SACR p308

Tshiki J

A [5] As against the second and/or fourth defendants' employees, [*] plaintiffs contend that the prosecutor(s) who dealt with the case and had control over the relevant police docket and who dealt with the plaintiffs from time to time during their court appearances:

(i)

failed in his/her/their duty to acquaint himself/herself/themselves with the contents of the relevant police investigation docket from B which it would have been obvious that there were no reasonable grounds or justification for the continued detention of the plaintiffs;

(ii)

failed in his/her/their duty to timeously withdraw the charges against the plaintiffs;

(iii)

failed in his/her/their duty to inform any presiding officer expeditiously C that there were no objective facts reasonably linking the plaintiffs to the alleged crime of murder;

(iv)

in any event failed in his/her/their duty to ascertain independently that no reasonable grounds or justification existed for the continued detention of...