Coetzee v National Commissioner of Police and Others

• Jurisdiction: South Africa
• Citation: 2011 (1) SACR 132 (GNP)

Coetzee v National Commissioner of Police and Others
2011 (1) SACR 132 (GNP)

2011 (1) SACR p132

Citation	2011 (1) SACR 132 (GNP)
Case No	70261/2009
Court	North Gauteng High Court, Pretoria
Judge	Du Plessis AJ
Heard	November 15, 2009; November 17, 2009
Judgment	October 11, 2010
Counsel	JR Bauer for the applicant.; TP Kruger for the respondents.

Flynote : Sleutelwoorde

Arrest — Legality of — Constitutional rights, in particular, right to freedom, not to be compromised by infringement thereof by government officials, in particular, police — Courts should jealously guard those rights — Those who I act in violation of those rights should face whole force of legal system to bring them to book and to restrain them.

Arrest — Law relating to arrest — Purpose of to secure attendance of accused at court — If preferable method of securing such attendance is through summons, that method to be employed — But risk of accused absconding or committing further crime to be considered — Arrest without reasonable J basis therefor should not occur indiscriminately, no matter how severe

2011 (1) SACR p133

alleged offence is — Person to be arrested still presumed innocent person A whose right to freedom, dignity and right to fair treatment should be upheld.

Arrest — Unlawful arrest — Application for release brought by way of interdict de libero homine exhibendo — Such interdict still part of South African law — On facts, court holding on return day that order for release correctly B made.

Costs — Costs de bonis propriis — When to be ordered — Government officials — Can be ordered against government official where his actions unlawful and caused litigation and costs in respect thereof — Taxpayer should not be made to bear costs for unlawful, indiscriminate and illegal C actions committed by government officials — Time has come to consider costs de bonis propriis against public officials acting in bad faith and causing unnecessary legal costs and litigation — Likewise for government officials who act in breach of constitutional imperatives contained in ss 38, 195(1), 237 and Bill of Rights in Ch 2 of Constitution of the Republic of South Africa, 1996 — Such orders may constitute 'appropriate relief' as contemplated in s 38 of Constitution and may act as deterrent against D public officials acting unlawfully and in bad faith.

Headnote : Kopnota

The Constitution of the Republic of South Africa, 1996, places a very high premium on the right to human dignity and freedom. It is essential that the courts should protect these rights in the most effective way possible. The E level of crime in South Africa should not justify a departure from the democratic and constitutional principles enshrined in our Constitution, safeguarding the population from any excessive use of power and deprivation of freedom by government institutions and authorities. The spirit of the Constitution, the recognition of basic human rights, and the right to freedom in particular, enshrined in the Constitution, should not be F compromised in any way whatsoever through the actions of government officials. The courts should therefore jealously guard these rights and act decisively upon the infringement thereof. Furthermore, it is important that those who act with impunity, and who think that they can do as they please, simply because they have the force of the whole law enforcement system behind them, should be brought to book and restrained. The whole wrath of the legal system, the rule of law, the courts and the public should be G brought upon such officials. (Paragraphs [43]–[45] at 148d–g.)

If a preferable method of securing an accused's attendance at court for trial is through a summons, that procedure should be employed. In this regard the risk of the suspect absconding or committing further crime should be considered. An arrest, without any rational and reasonable basis should not occur indiscriminately. It does not matter how severe the alleged criminal H offence may be. The person to be arrested is still presumed an innocent person whose right to freedom, dignity and right to fair treatment should be upheld. (Paragraphs [48]–[49] at 149c–e.)

A government official in a particular position can be ordered to pay costs de bonis propriis under certain circumstances as a result of such an official's actions, and in particular where the actions of the official were unlawful and where I it caused the litigation and the costs in respect thereof. That is particularly so where relief that is sought as a result of such actions is opposed by such individuals, which should never have been opposed. The taxpayer should not be the liable party to pay for unlawful, indiscriminatory and illegal actions committed by government officials. The time has come to consider costs orders de bonis propriis against public officials acting in bad faith and causing unnecessary legal costs and litigation, for their opponents, for the J

2011 (1) SACR p134

A general public and for taxpayers. And the time has come for courts to impose the full extent of the law upon government officials who arrogantly act in breach of the constitutional imperatives contained in ss 38, 195(1), 237 and the Bill of Rights in Ch 2 of the Constitution of the Republic of South Africa, 1996, who act with impunity and who are not taken to task by government, mostly because of inability, unwillingness or political reasons. (Paragraphs [65]–[66], [76] and [90] read with paras [81]–[82] at B 156a–d, 158b, 161h–i and 158g–159b.)

The authorities provide ample justification and authority for the court to grant appropriate relief as contemplated in s 38 of the Constitution, which would act as a deterrent for those responsible, and for others, to act within their constitutional obligations, and to serve the country and its people, rather C than to serve themselves. Any public official (in casu police officers in the South African Police Service and certain Metro Police officers from Pretoria) who knows that he would be ordered personally to pay costs of any court application or litigation flowing from his unlawful actions, will think twice before acting in the manner and fashion that those responsible in this matter have acted. The time has come to order such public officials, not D only to right the wrong that has been caused and to avoid the taxpayer having to fund their unlawful frolics, but also to act as a deterrent to public officials in future — to grant an order in terms of which all the costs of the litigation caused should be carried by those responsible. Only in the event of those responsible not being able to pay the full costs of the parties to the litigation, should the taxpayer be called upon to make good any payment of costs to a person who has been wronged and whose rights have been E infringed. (Paragraphs [97]–[98] at 162j–163d.)

Annotations:

Cases cited

Reported cases

Southern Africa

ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP): dictum in para [42] applied

African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A): applied

Alexander v Boksburg Municipality and Jones 1908 TS 413: dictum at 419 G applied

BS Finance Corp (Pty) Ltd v Trusting Engineering (Pty) Ltd 1987 (4) SA 518 (W): considered

Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D): applied

Blou v Lampert and Chipkin, NNO and Others 1972 (2) SA 501 (T): referred to H

Blue Circle Ltd v Valuation Appeal Board, Lichtenburg, and Another 1991 (2) SA 772 (A): dictum at 796 applied

Bovungana v Road Accident Fund 2009 (4) SA 123 (E): applied

Cabinet for the Interim Government of South West Africa v Bessinger and Others 1989 (1) SA 618 (SWA): applied

Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N): applied I

Die Meester v Meyer en Andere 1975 (2) SA 1 (T): referred to

Du Plessis en 'n Ander v Tzerefos 1979 (4) SA 819 (O): referred to

Ex parte Bloy 1984 (2) SA 410 (D): referred to

Ex parte Hodgert 1955 (1) SA 371 (D): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) J BCLR 851): dicta in paras [23] and [61] applied

2011 (1) SACR p135

Francarmen Delicatessen (Pty) Ltd v Gulmini and Another 1982 (2) SA 485 A (W): considered

Geldenhuys v Regional Magistrate, Sutherland 1914 CPD 62: considered

Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W): applied

Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC) (2009 (2) BCLR 136): applied B

Grobler v Potgieter 1954 (2) SA 188 (O): referred to

Gumede and Others v Subel NO and Others 2006 (3) SA 498 (SCA): applied

H Merks & Co (Pty) Ltd v The B-M Group (Pty) Ltd and Another 1996 (2) SA 225 (A): referred to

Hudson v Hudson and Another 1927 AD 259: dictum at 268 applied

In re Cakijana and Tobela (1908) 29 NLR 193: referred to C

In re Marechane (1882) 1 SAR 27: referred to

In re Willem Kok and Nathaniel Balie (1879) Buch 45: referred to

Jakins v Burton 1971 (3) SA 735 (C): referred to

Kabinet van die Tussentydse Regering vir Suidwes-Afrika en 'n Ander v Katofa 1987 (1) SA 695 (A): considered

Kauluma and Others v Minister of Defence and Others 1984 (4) SA 59 (SWA): dictum at 64 applied D

Koenig v Johnson & Co Ltd 1935 AD 262: dictum at 298 applied

Kruger Bros & Wasserman v Ruskin 1918 AD 63: dictum at 69 applied

Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA): applied

Le Roux v Minister of Safety and Security and Another 2009 (2) SACR 252 (KZP) (2009 (4) SA 491): applied E

Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T): applied

MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) ([2006] 2 All SA 455): applied

Mabona and Another v Minister of Law and Order and Others 1988 (2)...