National Commissioner of Police and Another v Coetzee

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 358 (SCA)

National Commissioner of Police and Another v Coetzee
2013 (1) SACR 358 (SCA)

2013 (1) SACR p358

Citation	2013 (1) SACR 358 (SCA)
Case No	649/11; [2012] ZASCA 161
Court	Supreme Court of Appeal
Judge	Mpati P, Cloete JA, Ponnan JA, Bosielo JA and Petse JA
Heard	August 28, 2012
Judgment	November 16, 2012
Counsel	TP Kruger (with L le Roux) for the appellants.; JR Bauer for the respondent.

Flynote : Sleutelwoorde

E Arrest — Legality of — Arrest without a warrant — Criminal Procedure Act 51 of 1977, s 40(1) — Otherwise lawful arrest does not become unlawful, merely because summons, or notice to appear in court, would have been equally effective in ensuring attendance at court, or because bail has been refused.

Headnote : Kopnota

F Arrest, being the most drastic method to secure a person's attendance at his trial, ought to be confined to serious cases, that is, it should be confined to cases where such person faces a relatively serious charge. Indeed, that is what is desirable. But where a peace officer does effect a lawful arrest in terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977 for what may not be considered to be a serious offence, the arrest, or subsequent detention, does G not become unlawful, thereby entitling a high court to order the release of the arrested person, merely because a summons, or notice to appear in court, would have been equally effective in ensuring his or her attendance at court, or because bail has been refused. (Paragraph [13] at 365f–g.)

Cases cited

Coetzee v National Commissioner of Police and Others 2011 (2) SA 227 (GNP): overturned on appeal H

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

Minister of Home Affairs and Another v Dabengwa 1984 (2) SA 345 (ZS): dicta at 359C – D and 360A – B distinguished I

Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) (2011 (5) SA 367; [2011] 2 All SA 157): referred to

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): applied

S v Baleka and Others 1986 (1) SA 361 (T): dicta at 374H – 375A applied

S v More 1993 (2) SACR 606 (W): dicta at 608e – j approved J

2013 (1) SACR p359

Tsose v Minister of Justice and Others 1951 (3) SA 10 (A): compared A

Wood and Others v Ondangwa Tribal Authority and Another 1975 (2) SA 294 (A): distinguished.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 40(1)(a): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-341. B

Case Information

Appeal from costs order made in an application for an interdictum de homine libero exhibendo in the North Gauteng High Court (Du Plessis AJ).

TP Kruger (with L le Roux) for the appellants. C

JR Bauer for the respondent.

Cur adv vult.

Postea (November 16).

Order D

1.

The appeal is upheld with costs, which shall include the costs of two counsel.

2.

The order of the court below is set aside and replaced with the following:

'The application is dismissed with costs.' E

Judgment

Mpati P (Cloete JA, Ponnan JA, Bosielo JA and Petse JA concurring):

[1] This appeal, though against the costs orders made by the court a quo F (Du Plessis AJ), involves the question of the authority of a high court to release from custody an arrested and detained person before he or she has been brought before a lower court. It is common cause that during the afternoon of Sunday, 15 November 2009, the respondent was flagged down by a Metro Police traffic officer, while driving his motor vehicle along Trans-Oranje Road on his way home to Pretoria from G Hartebeespoort Dam. He did not stop. In the vehicle with him were his wife, Ms Hester Coetzee, his son, Vincent, and the latter's girlfriend. The metro police officer, later identified as Const Frans Sivayi, gave chase and, with the help of reinforcements, managed to stop the respondent, who was then arrested and taken to the Pretoria West Police H Station, where he was detained. He was given a SAPD 14A form headed 'NOTICE OF RIGHTS IN TERMS OF THE CONSTITUTION' through which he was informed that he was 'being detained for the following reason: FAILED TO COMPLY WITH INSTRUCTION OF TRAFFIC OFFICER, CRIMEN INJURIA AND DRIVING UNLICENCED AND UNREGISTERED MOTOR'. I

[2] Later that evening the respondent's wife engaged the services of an attorney to secure the respondent's release from custody. It appears that there was no notice of motion placed before the court a quo, but in her affidavit in support of the application for the respondent's release, she asserts that '[i]ndien die agbare hof sal besluit om borg toe te staan kan J

2013 (1) SACR p360

Mpati P (Cloete JA, Ponnan JA, Bosielo JA and Petse JA concurring)

A ek R500 bekostig'. Despite this wording, counsel for the respondent submitted in this court that what was before the court a quo was not a bail application, but an approach to the court for it to consider and to 'ventilate' the common-law principle relating to the interdictum de homine libero exhibendo. The application was heard at 23h00 and Du Plessis AJ B made the following order:

'1.

The respondents are ordered to immediately release the applicant from custody at the Pretoria West Police Station, or any other place where the applicant may be held.

2.

The respondents are called upon to provide written reasons why the applicant was not given bail or an opportunity to apply for bail, and why C the applicant was not given an opportunity to pay a fine for the alleged contravention committed, which reasons shall be presented to the above honourable court and judge, in the urgent court on 17 November 2009.

3.

The respondents are ordered to provide this court on 17 November 2009 D with the names of the station commander of the Pretoria West Police Station that was on duty during the evening of 15 November 2009, as well as the name of the investigating officer of the applicant.'

The learned acting judge had indicated during argument before him that E he intended to issue a rule nisi.

[3] As to what transpired on 17 November 2009 Du Plessis AJ says the following in his judgment delivered on 11 October 2010: [1]

'Further affidavits were then filed by the parties, whereafter the matter F was finally argued. I required full reasons why the applicant was not given bail or granted the opportunity of paying a fine by the SAPS after having been arrested, and as to who should pay the costs of the application. The station commander, the Metro policeman, the investigating officer, and the commander responsible that evening for charging persons and granting bail, eventually appeared before me, and G they were all represented by the State Attorney and counsel. They were joined as respondents and had the opportunity to file affidavits and be represented.' [2]

The learned acting judge confirmed the order he had made previously and further ordered the station commander, Senior Superintendent H Moodley, Superintendent Klopper, Capt Nhlazo and Insp Dulebu, all of the Pretoria West Police Station, and Const Sivayi, to pay the respondent's (applicant in that case) and the first and second appellants' (first and second respondents in that case) costs de bonis propriis on the scale as between attorney and own client. He also ordered the appellants to I pay any further outstanding costs 'in the event, and only in the event of all execution steps having been taken, finalised and exhausted against the

2013 (1) SACR p361

Mpati P (Cloete JA, Ponnan JA, Bosielo JA and Petse JA concurring)

abovementioned officials'. The learned acting judge subsequently A dismissed the appellants' application for leave to appeal against the costs orders he made. This appeal is with leave of this court and is against the court a quo's costs orders only.

[4] At the first hearing before the court below during the evening of B 15 November 2009 the respondent's attorney, Mr Riaan Meyer (Meyer), testified orally that the respondent 'was arrested . . . for negligent and reckless driving' and that the normal procedure in respect of that offence was that 'one can get a fine of R500 or R1000' (p 1). At the second hearing (return day) it was argued on behalf of the respondent that his arrest and detention were unlawful and that the court had C correctly ordered his immediate release.

[5] In his affidavit deposed to on 18 November 2009 the respondent averred that while he was driving along Trans-Oranje Road he saw a person move towards the road from a motor vehicle, which was D presumably parked on the side of the road to his left and ahead of him. This person signalled for him to stop, but because he was not convinced that the person was a law-enforcement officer (geregsdienaar) he did not stop. He decided to carry on and after a short distance ('n ent verder) persons in a motor vehicle followed him and signalled for him to stop. E His son then shouted in the direction of the pursuers — Sivayi and a colleague — saying they should follow them to the police station. The respondent stated that he was aware of certain instances where criminals held themselves out as traffic officers and that he therefore did...