Rudolph and Others v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Farlam JA, Mthiyane JA, Brand JA, Lewis JA and Van Heerden JA
• Judgment Date: 31 March 2009
• Docket Number: 380/2008
• Hearing Date: 09 March 2009
• Counsel: GC Muller and MB Matlejoane for the appellants. BR Tokota SC (with K Mokotedi) for the respondents.
• Court: Supreme Court of Appeal

Mthiyane JA et Van Heerden JA:

[1] This is an appeal from a judgment of the Pretoria High Court (Mokgoatlheng AJ) dismissing with costs three claims instituted by the appellants against the respondents, in which they claimed damages arising out of their alleged unlawful arrest, detention and malicious C prosecution. The appeal is with the leave of the trial judge.

[2] The first claim arises out of the unlawful arrest of the first appellant on 18 July 2003 near Capital Park in Pretoria and the subsequent unlawful detention of both appellants. Both were taken to Pretoria Moot D Police Station (via Wonderboompoort Police Station) and detained in a police cell until 21 July 2003. On that day they appeared before a magistrate where they were granted bail of R500 each. Although a member of the first appellant's group, the second appellant was apparently not arrested, as will be discussed in more detail below.

[3] When the appellants tendered payment of bail at the magistrates' E court on the afternoon of Monday 21 July 2003, the prisoners' friend was not available to receive bail money. The appellants were then removed to the Pretoria Central Prison. At the prison the appellants again tendered payment of bail in vain; there, too, nobody was prepared to receive payment of it. F

[4] The appellants remained in custody until the following day, viz Tuesday 22 July 2003, having been arrested on the previous Friday. Although their bail was paid at 08h30, they were only released at 12h00. They were therefore detained from about 17h00 on the Friday until approximately midday on the Tuesday. G

[5] After several appearances in the magistrates' court, the charge against the appellants was withdrawn by the State in January 2004.

[6] The second claim, for damages for malicious prosecution, is based on the fact that the members of the South African Police Service (SAPS) H brought false charges against the appellants, in that the former had neither evidence, nor reason to believe, that the appellants had committed any offence; that they acted with 'malice', and that the charges were subsequently withdrawn.

[7] The third claim arises out of the first appellant's arrest by Captain I Ngobeni near Rayton on 26 July 2003, on a charge of sedition. The first appellant was thereafter taken (via Cullinan Police Station) to Mamelodi Police Station, where he was detained in a police cell. On 28 July 2003 he appeared before a magistrate on a charge of contravening the provisions of an administrator's notice in respect of the unauthorised display of placards or flags next to a public street. J

Mthiyane JA et Van Heerden JA

A [8] The arrests and detention of the appellants are not in dispute. What is disputed is the lawfulness or otherwise of these arrests and detention. In argument, counsel for the first respondent contended that, in relation to the arrest of 18 July 2003 and subsequent detention, an offence was committed in the presence of one Captain Bekker. A similar argument B was advanced in respect of the arrest and detention of the first appellant by Captain Ngobeni on 26 July 2003.

[9] As to the claim for damages arising out of the alleged malicious prosecution of the appellants, the sole issue is whether the appellants proved that members of SAPS acted with 'malice'.

C [10] Captain Bekker gave evidence for the first respondent in relation to the events of 18 July 2003. She testified that, after receiving a report, she went to the Low Water Bridge in Capital Park where she found eight persons: four adults and four children. The first and second appellants, the first appellant's wife and Mr MA van der Walt (nominally the third D appellant, who did not pursue his appeal before us) formed the adult component of the group and the rest were children. Upon arrival she informed them that their assembly was an unlawful gathering as they did not have the requisite permission to hold it. The first appellant enquired who she was and, after she had identified herself, he gave her his full E names, his ID number and the name of the political organisation of which he formed part. Captain Bekker then asked if they had permission to hold the gathering and, when none was produced, she asked them to disperse. The first appellant refused and maintained that they were in law entitled to be there.

F [11] Captain Bekker then gave the group 15 minutes to disperse. The deadline came and went and Captain Bekker was compelled to extend it by a further 10 minutes. The extended time did not have the desired effect and, an hour or so after the deadline, the first appellant and his group were still on the scene.

G [12] After consulting with a Captain Sithole and a SAPS legal adviser, one Mr Nel, Captain Bekker arrested the first appellant for contravening the provisions of the Regulation of Gatherings Act 205 of 1993 (the Gatherings Act). As already indicated, the second appellant was also told to accompany the police to the police station, but it would appear that he was not actually arrested. He testified that he had not been arrested, but H had accompanied the police voluntarily. Captain Bekker also said that she only arrested the first appellant.

[13] The court below accepted that the appellants had held an unlawful gathering in contravention of the provisions of the Gatherings Act in that they did not have the required permission. The trial judge appears to I have accepted also that the arrest without a warrant was effected in terms of s 40(1)(a) of the Criminal Procedure Act 51 of 1977. [1] In addition the learned judge held that Captain Bekker was 'not unreasonable in

Mthiyane JA et Van Heerden JA

entertaining a suspicion that a crime listed in Schedule 1 of the Criminal A Procedure Act was being committed'. This apparent reliance on s 40(1)(b) of the Criminal Procedure Act [2] was clearly incorrect, in that a contravention of the Gatherings Act is not one of the offences listed in Schedule 1.

[14] The onus of justifying the arrests and detention of the...