Lapane v Minister of Police and Another

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 138 (LT)

Lapane v Minister of Police and Another
2015 (2) SACR 138 (LT)

2015 (2) SACR p138

Citation	2015 (2) SACR 138 (LT)
Case No	CV 457/12
Court	Limpopo Local Division, Thohoyandou
Judge	Victor J
Heard	September 20, 2014
Judgment	September 20, 2014
Counsel	Advocate Maluleke for the plaintiff.; Advocate Maletje for the defendant.

Flynote : Sleutelwoorde

B Arrest — Without warrant — Further detention of accused — Constitutional duty on police officers and public prosecutors handling case to ascertain reasons for further detention — Such reasons or lack thereof to be placed before court — Housebreaking implements found 'near' plaintiff not justifiable reason — Acted mala fide — First and second defendants liable to plaintiff.

C Prosecution — Prosecutor — Powers and duties of — Prosecutor unable to assist court to assess whether prosecution and detention were justified in circumstances — Housebreaking implements found 'near' plaintiff not justifiable reason to refuse bail — Aware that without proof of presence of implements conduct would amount to mala fides — Prosecutors did D not apply their minds, rubber-stamped requests of first defendant — Acted mala fide — First and second defendants liable to plaintiff.

Headnote : Kopnota

The plaintiff instituted action against the first defendant, the Minister of Police, E and the second defendant, the Director of Public Prosecutions, for damages arising out of an unlawful arrest, detention and prosecution. He was detained for 2 years and 13 days without being granted bail before the charges were withdrawn against him without going to trial. The plaintiff testified that he was on his way home from a nearby tavern when he was arrested. He alleged that he was denied any information as to the reason for F his arrest and that he was subsequently tortured and questioned about a housebreaking and robbery. He was denied bail based on the submissions made by the investigating officer and the prosecutor that he had been found in the company of three other men and that housebreaking instruments were found near him. The other men were released on bail or on a warning but he was continually denied bail. It appeared that on the night in question G an informer had tipped off the police that another robbery was to be committed that night in the area where there had recently been a spate of robberies. Despite the fact that the plaintiff had an alibi that was very easy to check, the police relied entirely on the information of an informer. The arresting officer could not say how close the alleged housebreaking instruments were to the plaintiff and his fingerprints were not found on them. The H control prosecutor who took the decision to oppose bail relied entirely on the contents of the docket in this regard and to inform the decision that the plaintiff should be charged. She was unable to answer or explain why the plaintiff was treated differently — at the time of his bail application — from the others who were given bail or allowed to go on a warning.

Held, that the prosecutor's reliance on the alleged presence of housebreaking I implements near the plaintiff was not a justifiable reason to prosecute him and refuse bail. This was not simply an error of judgment. Her conduct and those of the prosecutors who took over were activated by mala fides, as they must have known that without the proof of the presence of housebreaking implements, as well as a failure to follow up on the plaintiff's explanation about his presence at the tavern, their conduct would amount to mala fides. J (Paragraph [45] at 145c.)

2015 (2) SACR p139

Held, further, that the prosecutor and the relevant prosecutors seeking the many A postponements were responsible for the unfortunate and lengthy incarceration of the plaintiff. Not one of the prosecutors had applied their minds to the case facing the plaintiff but simply rubber-stamped the request by the police. In the circumstances, the employees of the first and second defendants did not exercise their powers in a bona fide manner and the first defendant was liable to the plaintiff for the unlawful arrest and detention, B while the second defendant was liable for the prosecution and continued withholding of bail. (Paragraphs [49] at 145g and [54] at 146i.)

Cases cited

Southern Africa C

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

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): applied

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) D (2004 (2) BCLR 133; [2003] 4 All SA 565): applied

Olivier v Minister of Safety and Security and Another 2009 (3) SA 434 (W): applied

S v Mushimba en Andere 1977 (2) SA 829 (A): applied.

England E

Lawrie v Muir 1950 SC (J) 19: applied.

Case Information

Advocate Maluleke for the plaintiff.

Advocate Maletje for the defendant.

An action for damages for wrongful arrest, detention and prosecution. F

Order

(1)

The first defendant is liable to the plaintiff for the unlawful arrest and detention of the plaintiff together with costs.

(2)

The second defendant is liable for the prosecution of the plaintiff and continued withholding of bail together with costs. G

Judgment

Victor J:

[1] The plaintiff in this matter has instituted a damages claim against the H first and second defendants, respectively, arising out of an unlawful arrest and detention, and prosecution. The merits and quantum were separated by agreement between the parties. This trial concerns the merits only.

[2] The plaintiff was arrested and detained for 2 years and 13 days I without the grant of bail. The plaintiff issued two summonses, in the one action against the first defendant, the Minister of Police, for unlawful arrest and detention, and the second action against the second defendant, the Director of Public Prosecutions, for opposing bail, and again opposing another bail application on new facts. After 2 years and 13 days the charges against the plaintiff were withdrawn without going to trial. J

2015 (2) SACR p140

Victor J

A [3] The plaintiff testified that on the night of 27 August 2009 he was on his way home from a tavern when he was arrested. He was a short distance from the tavern.

[4] When he asked the reason for his arrest the police officers told him that they would address the issue further on. He was finally told the B reason for his arrest when placed inside the cells, viz robbery.

[5] He was removed from the police cells to a building known as the UIF building some 1,5 km away. At the UIF building he found Crime Intelligence policemen. They handcuffed his hands behind his back and he was made to sit on a chair.

C [6] His legs were also restrained in chains. They started torturing him by squeezing his handcuffs and accused him of crimes at Thohoyandou, Eastern Sibasa and other places. Despite feeling extreme pain when the handcuffs were squeezed and being told that he would tell the truth, he denied any knowledge of the crimes of housebreaking and house D robbery.

[7] They took a plastic sheet and covered his face, and he could not breathe. They instructed him that when he wished to tell the truth he should make a sound by kicking and tapping down with his legs.

E [8] After the torture he continued to tell them that he knew nothing about the crime. One policeman by the name of Erick...