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 criminal procedure in South Africa. A pragmatic approach was for this

reason followed; the case law selected for discussion here, either reaffirms

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 Police1and the Supreme Court of Appeali n

Mahlangu v Minister of Police,2 considered the extent to which the Minister

of Police can be held liable for the further detention of suspects unlawfu lly

arrested, subsequent their f irst appearance in court. It will be evident from

the discussion here, that divergent opinions continue to exist. Moreover, in

S v Serame3 and Mncwengi v S,4 the focus is on presiding officers and the

recourse available to parties aggrieved by the alleged irregular conduct on

the part of a judge and an assessor respectively. 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 constitutional

invalidity of s154(3) of the Criminal Procedure Act6 was confirmed. The

chapter concludes with a discussion of the decision in Nohour v Minister of

Justice and Constitutional Development,7 dealing with 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.

12020 (1) SACR 1 (CC).

2[2020] 2 All SA 656 (SCA).

32019 (2) SACR 407 (GJ).

42019 (2) SACR 583 (SCA).

52020 (1) SACR 469 (CC).

651 of 1977.

72020 (2) SACR 229 (SCA).

Criminal ProcedureCriminal Procedure

Andra Le Roux-Kemp*

2019/2020 YSAL 461

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462

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topic in South African criminal procedure; ie the prosecutorial duty to

disclose material evidence.

2. LEGISLATION

2.1 SEXUAL OFFENCE COURTS

The Minister of Justice and Correctional Services, in terms of s67 read

with s55A of the Criminal Law (Sexual Offences and Related Matters)

Amendment Act,8 made the following Regulations – Criminal Law (Sexual

Offences and Related Matters Amend ment Act: Regulations: Sexual Offence s

Courts9 – on 7 February 2020. These regulations provide for certain courts

to be designated as Sexual Offences Courts, and also set out the relevant

procedures and operations relati ng thereto.

Various provisions of the Judicial Matters Amendment Act10 also 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 Minister of Police for detention subsequent a first

appearance i n court

The primary issue before the Constitutional Court in De Klerk v Minister

of Police,12 was whether the Minister of Police is liable to compensate a

detainee, who had been unlawfully arrested, for the entire period of his

or her wrongful detention (from the moment of the unlawful arrest up

to the moment of release), if that detainee had (subsequent the unlawful

arrest) appeared in court, and a magi strate had ordered that the detainee be

further detained. In other words, should any order for compensation thus

be limited to the period f rom the unlawful arrest until the first appearance

in court? And, does a magistrate’s order for further detention (upon an

unlawful arrest) render the subsequent harm suffered by the detainee too

remote from the unlawfu l arrest?13

The applicant in this case was arrested on 20 December 2012, without a

warrant on a charge of assault to do grievous bodily harm, and following

a voice message on his (the applicant’s) phone to report to the Sandton

police station.14 It was recorded that the constable, having effected the

832 of 2007.

9GG 43000 RG11038 GN 108.

108 of 2017.

11GG 42987 RG11034 of 31 January 2020.

122020 (1) SACR 1 (CC).

13Para 1.

14Para 3.

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arrest, recommended in the docket that the applicant be released on bail

in the amount of R1 000. However, the matter of bail was not raised with

the applicant and when the applicant appeared before a magistrate a mere

two hours after his arrest, the magistrate informed him ‘without more

that he would be remanded in custody at the Johannesburg prison’.15 The

applicant was thereafter remanded in custody and his case was routinely

postponed. It later transpired that the arresting officer was aware that

this would happen as she knew that, at the Randburg Magistrate’s Court

where the applicant would have his first appearance, cases were normally

postponed.16 The applicant was only released from prison on 28 December

2012, after the complaint against him had be en withdrawn.17

A claim for damages was subsequently lodged against the Minister of

Police, for damages flowing from the applicant’s arrest and detention. Th is

claim was dismissed in the High Court Gauteng Division, Pretoria, as the

court accepted that the arresting officer believed that 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 taken on appeal to the Supreme Court of Appeal, where

it was found that the applicant’s arrest was indeed unlawful and that he

was entitled to damages in compensation. The judges differed, however, as

to whether the Minister of Police should be held liable for the applicant’s

unlawful detention after his first appearance in court.19 The majority of the

Supreme Court of Appeal held that the Minister of Police cannot be held

liable for the applicant’s detention after his first appearance in court,20 as

‘once an accused is brought to trial, it is the presiding off icer’s responsibility

to ensure that the accused’s fair trial rights under s35(1)(e)–(f) are not

undermined’.21 The majority therefore ordered the Minister of Police to

compensate the applicant for his unlawful detention from the moment of

arrest, only up to and until his appearance in court, and awarded him

R30 000 in damages, plus costs.22 In a mi nority judgment, Judges Rogers and

Leach held that the Minister of Police should be held liable for the entire

period of the applicant’s detention on the basis that the lawfulness of the

detention after the applicant’s first court appearance is not essential for

establishing liability. The reasoning was that ‘what matters is whether the

police can be said to have caused (both fact ually and legally) the detention

15Para 4.

16Para 110.

17Para 4.

18Para 5. See De Klerk v Minister of Police2016 JDR 1672 (GP).

19Para 6. See De Klerk v Minister of Police2018 (2) SACR 28 (SCA).

20Para 7. See Minister of Safety and Security v Sekhoto2011 (5) SA 367 (SCA).

21Para 7.

22Para 7.

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