Criminal Procedure
| Jurisdiction | South Africa |
| Published date | 10 March 2021 |
| Citation | 2019/2020 YSAL 461 |
| Pages | 461-521 |
| DOI | https://doi.org/10.47348/YSAL/v1/i1a9 |
| Date | 10 March 2021 |
| Author | Le Roux-Kemp, A. |
461
1. INTRODUCTION
For the year under review, there were no major legal developments or
noteworthy cases presenting new, or alternative avenues for the development
of crimina l procedure in South Africa. A pragm atic approach was for this
reason followed; the case law selected for dis cussion here, either reaffir ms
important or fundame ntal legal principles or procedures, or present unique
or interesting factua l scenarios to which the law of criminal pro cedure had
been applied. With regard to unlawful a rrest, for example, the Constitutional
Court in De Klerk v Minister of Police1 and the Supreme Court of Appeal i n
Mahlangu v Minister of Police,2 considered the extent to which the Mi nister
of Police can be held liable for the further detention of sus pects unlawfu lly
arrested, subsequent their f irst appearance in court. It will be evident from
the discussion here, that divergent opin ions continue to exist. Moreover, in
S v Serame3 and Mncwengi v S,4 the focus i s on presiding officers and t he
recourse available to parties aggr ieved by the alleged irregu lar conduct on
the part of a judge and an assessor r espectively. Arguably the most pivotal
case discuss ed in this chapter is the Constitutiona l Court decision in Centre
for Child Law v Media 24 Limited,5 whereby the declaration of constitutiona l
invalidity of s 154(3) of the Criminal Procedure Act6 was con firmed. The
chapter concludes with a discus sion of the decision in Nohour v Minister of
Justice and Constitutional Development,7 dealing w ith a rather understudied
* BA LLB (Stell) CML (Unisa) LLD (Stell) BMus (Unisa) Hons BMus (Unisa); Associate
Professor, University of Lincoln (United Kingdom). ORCID: https://orcid.org/0000-0001-7186-
7662.
2 [2020] 2 All SA 656 (SCA).
6 51 of 1977.
Criminal ProcedureCriminal Procedure
Andra Le Roux-Kemp*
2019/2020 YSAL 461
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topic in South African cr iminal proce dure; ie the prosecutorial duty to
disclose material evidence.
2. LEGISLATION
2.1 SEXUAL OFFENCE COURTS
The Minister of Justice a nd Correctional Ser vices, in terms of s 67 read
with s 55A of the Crim inal Law (Sexual Offences a nd Related Matters)
Amendment Act,8 made the following Regu lations – Crimi nal Law (Sexual
Offences and Related Matters Amend ment Act: Regulations: Sexual Offence s
Courts9 – on 7 Februar y 2020. These regulations provide for certa in courts
to be designated as Sexual Of fences Courts, and also se t out the relevant
procedures and operations relati ng thereto.
Various provisions of the Judicial Matters Amendment Act10 al so came
into operation to give effect to the designation of Se xual Offence Courts.11
3. CASES
3.1 UNLAWFUL ARREST AND DETENTION
3.1.1 Liability of the Mi nister of Police for detention subse quent a first
appearance i n court
The primary is sue before the Constitutional Cour t in De Klerk v Minister
of Police,12 was whether the Minister of Police is liable to compensate a
detainee, who had been unlawf ully arrested, for the enti re period of his
or her wrongful detention (from the moment of the u nlawful arrest up
to the moment of release), if that detainee had (subsequent the unlawf ul
arrest) appeared in court, and a magi strate had ordered that the detainee be
further detai ned. In other words, should any order for compensation thus
be limited to the period f rom the unlawful arrest until t he first appearance
in court? And, does a magistrate’s order for further detention (upon an
unlawful arr est) render the subsequent harm suffered by t he detainee too
remote from the unlawfu l arrest?13
The applicant in this ca se was arrested on 20 December 2012, without a
warrant on a charge of assault to do grievous bod ily harm, and following
a voice message on his (the applicant’s) phone to report to the Sandton
police statio n.14 It was recorded that the constable, having effected t he
8 32 of 2007.
9 GG 43000 RG11038 GN 108.
10 8 of 2017.
11 GG 42987 RG11034 of 31 January 2020.
13 Para 1.
14 Para 3.
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arrest, recommended in t he docket that the applicant be released on ba il
in the amount of R1 000. However, the matter of bail was not raised with
the applicant and when the applicant appeared before a magi strate a mere
two hours after his a rrest, the magistrate in formed him ‘without more
that he would be remanded in custody at the Johan nesburg prison’.15 The
applicant was thereafter remanded i n custody and his cas e was routinely
postponed. It later transpired t hat the arresti ng officer was aware that
this would happen as she knew th at, at the Randburg Magistrate’s Court
where the applicant would have his first appearance, cases were norm ally
postponed.16 The applicant was only released from pris on on 28 December
2012, after the complaint against him had be en withdrawn.17
A claim for damages was subsequent ly lodged against the Mini ster of
Police, for damages flowing from the applicant’s arrest and detention. Th is
claim was dismi ssed in the High Cour t Gauteng Division, Pretoria, as the
court accepted that the arr esting officer believed t hat the applicant had
indeed committed a n offence in terms of Sc hedule 1, and had exercised her
discretion to arr est the applicant in order to secure his attendance i n court.18
This decision was tak en on appeal to the Supreme Court of Appeal, where
it was found that the applicant’s arrest was indeed unl awful and that he
was entitled to damages in compens ation. The judges differed, however, as
to whether the Ministe r of Police should be held liable for the applicant’s
unlawful detention af ter his fir st appearance in court.19 The majority of t he
Supreme Court of Appeal held that the Mini ster of Police cannot be held
liable for the applicant’s detention after his first appea rance in court,20 as
‘once an accused is brought to trial, it is the presiding off icer’s responsibility
to ensure that the accus ed’s fair trial rights under s 35(1)(e)–(f ) are not
undermined’.21 The majorit y therefore ordered the Min ister of Police to
compensate the applicant for his un lawful detention from the moment of
arrest, only up to and until h is appearance in court, a nd awarded him
R30 000 in damages, plus costs.22 In a mi nority judgment, Judges Rogers and
Leach held that the Min ister of Police should be held liable for the entire
period of the applicant’s detention on the basis that the lawfu lness of the
detention after the applicant’s first court appeara nce is not essential for
establishing liabi lity. The reasoning was that ‘what matters is whether t he
police can be said to have caused (both fact ually and legally) the detention
15 Para 4.
16 Para 110.
17 Para 4.
18 Para 5. See De Klerk v Minister of Police 2016 JDR 1672 (GP).
19 Para 6. See De Klerk v Minister of Police 2018 (2) SACR 28 (SCA).
20 Para 7. See Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA).
21 Para 7.
22 Para 7.
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