Xulu v Minister of Police and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | De Vos AJ |
| Judgment Date | 13 September 2023 |
| Citation | 2023 JDR 3447 (GJ) |
| Docket Number | 21/52147 |
| Court | Gauteng Local Division, Johannesburg |
De Vos AJ:
Introduction
Mr Xulu claims damages for his arrest, detention and prosecution. Mr Xulu was detained for 813 days. He relies on the actio iniuriarum and seeks non-patrimonial damages. The Court is to determine both liability and quantum.
Mr Xulu was the victim of an attempted robbery outside his home in Berea. Mr Rodriguez was the robber. Mr Xulu, twice, unsuccessfully tried to repel Mr Rodriguez. After his attempts failed, Mr Xulu shot and killed Mr Rodriguez in self-defence. Mr Xulu was charged with the murder of Mr Rodriguez and was detained for just over two years before he was acquitted. Mr Xulu claims damages for these two years in detention.
Mr Xulu was detained by the first defendant (“the police”) for only two days. I find, for reasons I set out below, that Mr Xulu’s arrest and detention by the police was unlawful. However, that accounts only for 2 of the 813 days of Mr Xulu’s claim.
The vast majority of Mr Xulu’s time spent in detention was after his first court appearance. I will refer to this period after his first court appearance until his release as his subsequent detention. Mr Xulu’s subsequent detention was at the behest of the second defendant (“the prosecution”). Mr Xulu’s case is that even though his subsequent detention was at the hands of the prosecution, certain acts and omissions by the police rendered his subsequent detention unlawful.
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The central controversy in this case is whether the police caused, legally and factually, the subsequent detention as a result of their unlawful conduct. It is a controversy which Cameron J said “has long intrigued and troubled litigants and the courts.” [1]
Mr Xulu’s claim is that the police knew he acted in self-defence. He told them so, repeatedly. Yet, the police omitted to inform the prosecution that Mr Xulu had killed Mr Rodriguez in self-defence. Mr Xulu’s case is that the police withheld the fact that Mr Xulu was the victim of an attempted robbery from the prosecution.
Mr. Xulu’s claim of self-defence negates mens rea and is a complete justification for the charge of murder. However, the prosecution, being kept in the dark by the police as to Mr Xulu’s defence, charged Mr Xulu and persisted in the prosecution. The prosecution were kept unawares they were charging someone who claimed he had been the victim of an attack and had acted to protect his own life.
Whilst the case is correctly framed as one of delict, it engages the value of separation of powers. The executive and the judiciary are separate and ought not to be held accountable for the conduct of the other. The executive ought not to be accountable for the conduct of the judiciary, and the judiciary must not attract liability for the conduct of the executive. Whilst an arrest is affected by the executive through police officers, the subsequent detention is at the behest of the judiciary. Once a police officer hands over an arrested person to an officer of the Court, it is the judiciary, and not the executive, who is primarily responsible. [2]
Initially, our courts upheld the separation of powers principle in an absolutist fashion. [3] The position was what happened at Court and thereafter could not be placed before the doorstep of the police. [4] In Sekhoto [5] the Supreme Court of Appeal held that once an accused is brought to trial, it is the presiding officer’s responsibility to ensure that the accused’s fair trial rights are not undermined. [6] However, the water-tight separation
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required reconsideration. The facts of Tyokwana [7] illustrate the need for a more nuanced approach. Mr Tyokwana was wrongfully arrested. He pleaded guilty to the charges against him and was detained pending his sentencing. It later emerged his plea was made under duress. It also became clear during his trial that the arresting officer had committed unconscionable crimes of assault against the accused. On top of this, the officer had lied to and misled the Court, including at the accused’s bail hearing. [8] Tyokwana illustrates one of the instances where the conduct of the executive so fundamentally affects the subsequent conduct of the judiciary that the executive must be liable, notwithstanding the persuasive separation of powers considerations. [9]
Mr. Xulu contends that this is such a case. He relies on Tyokwana and cases that have followed in a similar vein to contend his subsequent detention was tainted by the unlawful conduct of the police. Having identified the central controversy, I set out the context within which this controversy must be considered.
Context
Mr. Xulu’s persistent refrain during his testimony was, “I told them, but no one would listen to me. I was the victim of the crime, but they treated me like I was the criminal”. The evidence, initially, did not support this refrain of Mr Xulu.
The arresting officer, Sgt Motena, testified that he was called out to attend to a shooting incident on the corner of Lily and Abel Street in Berea. When he arrived at the crime scene, onlookers told him the shooter left in a maroon car with registration number FV37DFGP. Having jotted down the number, Sgt. Motena started to patrol the area. In less than 20 minutes, Sgt. Motena saw a maroon car that matched the registration number. Sgt Motena spoke to the driver of the car: Mr Xulu. Mr Xulu, off the bat, said he had shot someone on the corner of Lily and Abel. Mr. Xulu showed Sgt. Motena the gun. Sgt Motena arrested Mr Xulu as he was driving in the car that left the scene of the shooting, admitted to the shooting and had the gun on him. Sgt. Motena
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arrested Mr Xulu on a charge of attempted murder. At this stage of the proceedings, Mr Xulu’s claim that he was the victim seemed fanciful.
However, as the evidence developed, the scales tipped. The scene of the shooting was just outside Mr. Xulu’s home. Mr Xulu had just arrived home from work. His home is right opposite Berea Park. His neighbourhood is notoriously dangerous. He had on him his wallet, and the keys to his car were still on him. He was still inside his car when he was attacked by two assailants who had come from Berea Park. The first assailant opened the passenger door to the backseat, jumped in the car and threatened Mr Xulu with a knife. Simultaneously, a second assailant, who we now know to be Mr Rodriguez, appeared at Mr Xulu’s window. Mr Xulu opened the car door against Mr Rodriguez in an attempt to push him away. Mr Rodriguez stumbled backwards. Mr Rodriguez, undeterred, regained his balance and again approached Mr Xulu’s window.
Mr. Xulu was trapped in the car, one assailant behind him in the car, and Mr. Rodriguez returning to his window. Mr Xulu fired two warning shots in the air, again seeking to repel his attackers. The first assailant fled after the warning shots. Mr Rodriguez, however, reached for something in the front of his belt, which Mr Xulu presumed to be a gun. Mr Xulu, having tried twice to repel his attacker, fired in the direction of Mr Rodriguez. The shots wounded Mr Rodriguez. Mr Rodriguez subsequently died from his injuries.
The Court wished it had a full name for Mr Rodriguez and has asked the parties for the full name. Unfortunately, the Court has only been provided with his first name, Rodriguez. I will refer to him in this judgment as Mr Rodriguez.
Mr Xulu, shocked and having just survived an attack, drove away in the direction of the Hillbrow Police Station to report the incident. When the maps were studied, it became objectively clear that Mr Xulu had turned from the scene of the crime directly towards the Hillbrow police station. Had he sought to flee the scene of the crime, he did a terrible job of it. If Mr Xulu wanted to flee he should have gone entirely in the different direction: he should have turned right from the scene of the crime if he wanted to avoid the police, but he turned left towards the police station. Had Mr Xulu not been arrested and continued on this path, he would have reached the police station. Mr Xulu
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was arrested whilst he was on his way to tell the police at the Hillbrow police station that he had shot someone in self-defence.
Mr. Xulu’s version of events was accepted during his murder trial. His explanation of where the incident occurred - outside his home - was verified by the police. His explanation of the attack and the warning shots he fired were confirmed by objective evidence in the form of cartridge cases found at the scene of the crime. In addition, his explanation of how he had shot Mr Rodriguez whilst he was sitting in his car and with the second assailant standing at the car window was also confirmed by the police’s own ballistics report. The ballistics report confirmed the trajectory of the bullet was in line with someone sitting down and shooting at someone at a higher angle. Mr Xulu was acquitted.
Mr Xulu’s acquittal came after he had spent two years in Johannesburg Prison waiting for his day in Court. Mr Xulu was arrested on 11 November 2018 and only released on 1 February 2021.
These facts are of contextual value only. The question before the Court is not whether Mr Xulu acted in self-defence. The criminal Court has already dealt with that issue. The relevant question, now, is whether Mr. Xulu’s arrest, detention and prosecution were lawful based on the evidence known at the time – not based on the facts as we know them now. Mr Xulu’s justification of self-defence is relevant to the extent he claims he informed the police that he acted in self-defence, and the police failed to inform the prosecution.
It is not Mr Xulu’s defence which is relevant; rather, it is Mr Xulu’s disclosure of his defence which is central.
Mr...
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