IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA 107/2016
Date Heard:  10 March 2017
Date Delivered:  16 March 2017

In the matter between:

THE MINISTER OF SAFETY & SECURITY				    First Appellant

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS		Second Applllant

and

MARIUS SCHUSTER					       	          First Respondent

DARRYL CAMPHER						     Second Respondent

APPEAL JUDGMENT

LOWE, J:

Introduction:

[1]	In this matter, Respondents instituted action against  Appellants, alleging that they were unlawfully arrested without a warrant of arrest, on a charge of robbery on 10 January 2013 and were thereafter detained arbitrarily and without just cause at the Gelvandale Police Station until they appeared in court later that same day, being further wrongfully and unlawfully detained at the instance of and/or due to the action of employees of Applicants at St Albans prison from 10 January 2013 to 30 January 2013.

[2]	In their plea Defendants admit the arrest on 10 January 2013, but allege that this was “on a warrant of arrest issued under due process of law, by members of the South African police services…”.  Denying that the arrest and detention was wrongful and unlawful.  It is further alleged that the arrest was lawful by virtue of the provisions of section 40 (1) (b) of the Criminal Procedure Act, 51 of 1977 (“the CPA”), in that the arresting officer held a reasonable suspicion that the Respondents had committed an offence referred to in Schedule 6, namely armed robbery.

[3]	It is also worth noting that Appellants pleaded that prior to Plaintiff’s arrest on 10 January 2013 they were initially arrested on 16 August 2012 at Port Elizabeth on the same charge, the case against them being later withdrawn on 23 October 2012, they being later re-arrested as set out above.

[4]	There were thus, two causes of action, in effect, although this was claimed in one globular sum against both Defendants jointly and severally the one paying the other to be absolved.

[5]	In due course the Magistrate gave judgment for Respondents against First Defendant in the sum of R50 000.00 each in respect of the unlawful arrest and detention from 01H30 to 08H30 on 10 January 2013 together with interest thereon from date of service of summons (16 July 2013) to date of payment; and that First and Second Appellants were jointly and severally liable to respondents in the sum of R250 000.00 each in respect of the unlawful detention from 10 January 2013 to 30 January 2013 with a similar interest order. Respondents were also ordered their cost of suit.

[6]	Appellant’s appeal against this finding and order contending that the Magistrate erred in so finding.

[7]	I propose to deal separately with the two causes of action as these can mostly be assessed separately is relying on different, though related, issues.

Wrongful Arrest:

[8]	An arrest may be carried out with or without a warrant and, unless the person to be arrested submits to custody, the arrest is done by actually touching the person’s body.  The arrested person must be informed of the reason for the arrest or, if it is upon warrant, a copy of the warrant must be handed to him or her on demand. The effect of an arrest is that the person arrested is in lawful custody and must be detained until lawfully discharged.

[9]	At his or her first appearance in court a person who was arrested for allegedly committing an offence must, subject to sections 50(6) and 60 of the CPA,:
(i)	be informed by the court of the reason for the detention to continue; or
(ii)	be charged and be entitled to apply to be released on bail.

[10]	If a person is arrested by a police official and challenges the validity of his or her arrest and detention, the onus to prove the lawfulness thereof is on the police official who effected the arrest or ordered the arrest. 

[11]	An arrest and detention after an arrest will only be lawful if the arrest complied with certain requirements. These are that:

(a)	the arrest (with or without a warrant) was properly authorised (that is to say there must be a statutory provision authorising the arrest);

(b)	the arrestor exercised physical control over the arrestee. (The arrestee’s freedom of movement must therefore have been limited); 

(c)	the arrestee was informed of the reason for his or her arrest;  and

(d)	the arrestee was taken to the appropriate authorities as soon as reasonably possible. 
[12]	A police official who effects an arrest in terms of a warrant must, upon the demand of the person arrested, hand him or her a copy of the warrant.  If a police official is not in possession of the warrant of arrest and realises that he or she will not be able to comply with a demand for a copy of the warrant, but nevertheless effects the arrest, such an arrest will be unlawful.  Minister van Veiligheid & Sekuriteit v Rautenbach 1996 1 SACR 720 (SCA).  In this case the policeman intended to take the arrested person to the police station and hand him a copy of the warrant at the police station.  According to the court, this would have taken too long and would not have complied with the requirements of s 39(2).

[13]	If a person is unlawfully arrested, his or her initial detention after the arrest will also be unlawful. However, once such person has been brought before a court and his or her further detention has been ordered, the further detention, after the hearing, will be lawful detention, although the suspect will retain his or her right to institute an action for damages as a result of the unlawful arrest and initial detention. Isaacs v Minister van Wet & Orde 1996 1 All SA 343 (A).

[14]	Secondly, at the time of effecting the arrest or immediately thereafter,; where the arrest is effected by virtue of a warrant, a copy of the warrant must upon his or her demand be handed to the person arrested. S 39(2);  Minister of Law & Order v Kader 1991 1 All SA 256 (A); 1991 1 SA 41 (AD) 46;  cf Brand v Minister of Justice 1959 4 All SA 420 (A);  1959 4 SA 712 (AD) 718;  Ngqumba v Staatspresident, Damons v Staatspresident, Jooste v Staatspresident 1988 4 SA 224 (A) 265–266;  Constitution of the Republic of SA, 1996 s 35(2)(a).

[15]	Once the wrongfulness of the arrest or imprisonment has been established, the Plaintiff can claim satisfaction, which is estimated ex aequo et bono, under the actio iniuriarum.  Factors which may have an influence on the amount of satisfaction awarded are the circumstances under which the interference with liberty took place, the absence or presence of malice or an improper motive on the part of the Defendant, the duration of the restriction of liberty,  the social status and age of the Plaintiff,  the fact that the Plaintiff was the author of his or her own misfortune, the degree of publicity afforded the deprivation of liberty, and whether the Defendant apologised for or gave a satisfactory explanation as to what took place.   In addition, awards in previous cases, allowing for inflation, must be considered.  If, there is also an infringement of other personality interests, such as dignity and especially good name or reputation, the amount of satisfaction is increased.  

[16]	In Rautenbach (supra) it was set out that compliance with section 39 (2) of the CPA is required as soon as possible but that it is clear where there is no intent or ability to comply therewith the arrest is invalid from its inception. In that matter the arrestor acted on the authority of a warrant to arrest the suspect but did not take a copy of it to the arrest and could not have exhibited it had the suspect requested same and he was therefore not able and did not intend to comply with the requirement, and the arrest was futile. In Baasden v Minister of Safety and Security 2014 (2) SACR 163 (GP), the failure to prove that a warrant existed by producing same at the trial was sufficient to support a finding that the arrest consequent thereupon was unlawful.

[17]	It is of course so that having pleaded the justification for the arrest as being one on warrant the Appellants then went on to refer to s 40 (1) (b) of the CPA, which applies not to arrests on warrant but to arrest without a warrant by a peace officer of a person whom he reasonably suspects of having committed an offence referred to in schedule 1 (not in the alternative to the main defence).  This is an entirely different issue, but it would seem, from what follows that this can be completely ignored and was not pursued, being in any event  entirely inconsistent with the first claim that the arrest was on a warrant – in the face of Applicant’s own claim that this was an arrest without warrant.

[18]	In the pleadings, Respondents in a request particulars for trial to the plea sought a copy of the warrant of arrest, and asked that if this was not in First Defendant’s position why this was not so.  The answer given by Appellants was to produce a copy of a warrant in respect of Second Respondent attaching same dated 21 November 2012 and not in respect of First Respondent, but stating that due process of law referred to the warrant being issued in accordance with the provisions of the CPA to ensure the attendance of the accused Plaintiff at court (whatever that may mean).

[19]	It is apparent that the matter went to trial on this basis.

[20]	This issue as to the lawfulness of the arrest can be shortly dealt with. It was the clear and unequivocal evidence of Constable January that on 10 January 2013 he arrested both respondents together on the basis of a warrant of arrest which he referred to as a J 50. He said that there were 2 warrants, although only one of these could be produced at the trial being that in respect of second respondent. He says he introduced himself to the 2 respondents and informed them that there was a warrant for their arrest thereupon arresting them. He said in his evidence in chief that he had the “warrant” with him, but does not say that this was displayed to respondents, nor does he say whether or not they asked for same.

[21]	In cross-examination, however, he was directly asked whether he had exhibited or given a copy to the Respondents and the answer is unequivocally that he did not.  It was put to him that Respondents would say that he was not in possession of the warrant when they were arrested and did not show same to them upon which he answers, that he showed them that there were warrants but he did not give them copies thereof.  It was put that respondents said to him that if he had warrants they wanted to see them.  He did not contradict this.

[22]	Only First Respondent gave evidence, saying that on the day in question they were confronted by Constable January and some police officers, he asked for the warrant Constable January mumbling that they were wasting his time, he having asked specifically for a copy thereof.  In cross-examination it was put to him that whilst they had not been given copies of the warrant these had been exhibited to them at the time of the arrest the witness answering that no warrants were shown to them.

[23]	There is no further relevant evidence on the point, and as Appellants had the onus, it cannot be gainsaid that:  Constable January applied for and according to him obtained two warrants of arrest for Respondents;  that he attended to arresting the Respondents purportedly on the basis of the warrant in respect of them each;  that at best for Constable January, he had the two warrants with him and showed them copies thereof but did not hand these copies to the Respondents (whilst this issue is disputed, by Respondents, their version being that there were no warrants present or displayed to them – it is clear that on Appellants own evidence copies of the warrants were not given to Respondents).

[24]	The only issues outstanding in this regard are then: whether or not Respondents asked for copies of the warrant; whether the absence of the second warrant in respect of First Respondent at trial has a consequence?

[25]	On my assessment of the evidence as referred to above, I am unable to differ from the Magistrate’s conclusion that Constable January had conceded that he did not furnish copies of the alleged warrants to Plaintiff when he arrested them, and did not join issue with the evidence of First Respondent that he had asked for same. Secondly it is unequivocal that the warrant in respect of First Respondent could not be produced at the trial.

[26]	On the basis of Rautenbach (supra), the failure to present the warrant to an arrested person when asked for same is fatal to the lawfulness of the arrest – this being the position in this matter.  I am unable to agree with the argument for appellants that it was incumbent on respondent to have pleaded that they had asked for the warrants and not been handed same.

[27]	It is, thus, unnecessary, to consider the other issues raised challenging the lawfulness of the arrest save to say that on the authority of Baasden (supra), the failure to produce the warrant in respect of First Respondent made it inevitable that the existence of same could not be proved this of itself meaning that a claim for wrongful arrest must succeed in respect of First Respondent on this basis alone.

[28]	That is dispositive of the first issue on appeal and the Magistrate’s finding in this regard and his finding that First Appellant is liable to Respondents for the period referred to falls to be upheld.

The Subsequent Detention:

[29]	I turn to consider the second issue being the detention of Respondent subsequent to they having been brought to court.  As pointed out above, although the initial arrest may have been unlawful, this does not by any means necessarily render the further detention unlawful once an accused person has appeared before court and is detained consequent upon that appearance.

[30]	A person who has not been released from custody is entitled to be released on bail at any stage preceding his or her conviction for such offence, if the court is satisfied that the interests of justice so permit. S 60 CPA; s 35(1)(f ) of the Constitution of the Republic of SA 108 of 1996 which gives every arrested person the right to be released from detention if the interests of justice permit, subject to reasonable conditions.

[31]	If the question of the possible release of the accused on bail is not raised by the accused or the Prosecutor, the court must ascertain from the accused whether he or she wishes the question to be considered by the court.

[32]	Where an accused is charged with an offence referred to in Schedule 6 of the Criminal Procedure Act 2 the court must order that the accused be detained in custody until he or she is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release.

[33]	The onus to be discharged by an accused is the normal civil standard on a balance of probabilities. The phrase “exceptional circumstances” has covered a variety of situations: the failure of the state to contradict the accused’s denial of guilt, a lengthy period of being held in custody and good conduct of the accused, and a non-existent case against the accused; but it is futile to draw up a list of what constitutes exceptional circumstances. It is not a standard which would make it impossible for an accused to meet. 

[34]	In Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 at [38] the court held that what Isaacs (supra) decided  was that the prior unlawful arrest of a person is not a prerequisite for the coming into effect of section 50 (1) of the CPA. It was held in fact that the person concerned may have been arrested unlawfully but that this does not preclude him or her from being remanded lawfully in terms of section 50 (1). Isaacs however did not hold that an arrested person’s continued detention by virtue of an order of court remanding him or her in custody in terms of section 50 (1) of the CPA would automatically render such continued detention lawful.  The court held that the question whether the order of the magistrate remanding the respondent in custody (and refusing bail in that matter) rendered his subsequent detention as lawful or not had to be answered with regard to the peculiar facts of the case, which is applicable in my view to this matter.

[35]	It is clear in our law that it is the duty of a policeman who arrested a person for the purpose of having him or her prosecuted to give a fair and honest statement of the relevant facts to the prosecutor leaving it to the latter to decide whether to prosecute or not.  Tyokwana (supra) at [40].  Further, the police have a clear duty to bring to the attention of the prosecutor any facts known to them, relevant to the exercise by the Magistrate of his discretion to admit a detainee to bail. [40].

[36]	In this matter, on the facts, Respondents were taken to court on the day of the arrest between 08H00 and 09H00. It is common cause that Constable January was not opposed to the Respondent’s being released on bail. He, however, failed to complete a form giving information for purposes of the bail application, as is usual, and as was done although inadequately the time of the first arrest. Constable January testified that he did not consider the Respondents a flight risk but did not convey this to the Prosecutor.

[37]	The Prosecutor Miss Rockman dealt with the Respondent’s first appearance on 10 January 2013 on behalf of the state on a charge of robbery with aggravating circumstances, a Schedule 6 offence.  She opposed bail for this reason and having regard to the prevalence of this type of offence in the area, as also by virtue of the provisions of section 60 (11) (a) of the CPA.

[38]	She was aware that Respondents were previously arrested and that the matter had been withdrawn due to the unavailability of the complainant.

[39]	The presiding officer on this occasion informed respondents of their rights, they asking for legal aid.  It is not perfectly clear from the evidence of Miss Rockman whether at that moment, and having been informed of the rights, that this included the entitlement to apply for bail which she then opposed  she saying that thereafter the accused decided not to proceed with the formal bail application indicating to the court that they wanted a speedy trial. It would seem that the accused wanted to apply for bail and that when the matter was remanded for this to occur, they changing their minds thereafter.

[40]	The Prosecutor has a duty to place before the Court any information relevant to the excise of the discretion with regard to the granting or refusal of bail. Carmichelle  v Minister of Safety and Security and Another 2002 (1) SACR 79 (CC) at [72] ,[81]-[83].  It makes no difference to the above principle, in my view, that this is a schedule 6 offence subject to s 60 (11).  As already pointed out the arresting policeman has a duty to give a fair and honest statement of the relevant facts to the Prosecutor.

[41]	It is clear from Constable January’s own evidence that he was not at court when they were bought before the Magistrate on the first occasion.  It is clear from the evidence that he had no opposition to bail being granted and was unable to explain why he did not tell the Respondents this was the case and that the respondent did not pose a flight risk, that they had previously been arrested and imprisoned and released on the same charge and had made no attempt to influence the complainant.  He was not certain even that the Prosecutor had opposed the granting of bail.  In fact there appears to be nothing in the docket in this regard save the original form completed and referred to above in respect of their original arrest and charge. That original form was essentially of no assistance whatsoever to the Prosecutor in assessing whether to grant or oppose bail. He said unequivocally that as investigating officer, and I should add as the arresting officer, he had no objection to bail being granted subsequent to them having been arrested.

[42]	In the light of the principles enunciated above, it need hardly be said that in the circumstances of this matter and both as arresting officer and investigating officer it was essential and required, in my view, of Constable January to have informed the prosecutor of this stance, then leaving it to the prosecutor to decide whether to grant or oppose bail. To remain silent was, in my view, simply not good enough.  In fact I could not find anywhere in the record where it was suggested that Constable January had given a fair and honest statement of the relevant facts to the Prosecutor before the Respondents first appearance.

[43]	He did not make a note in the docket that he would not be opposing bail nor did he at any time indicate thereon that this was the case whether in the investigation diary or anywhere else. When challenged with this he simply said he had no answer therefore. In my view, this fact indicates a serious dereliction of duty on the part of Constable January and a failure of the clear duty that the police have to bring to the attention of the prosecutor any fact known to them relevant to the exercise by the Magistrate of his or her discretion to admit a detainee to bail. That the accused had previously been arrested and then released, as described above, did not pose a flight risk and that the investigating officer who had arrested them on the second occasion had no objection to the release on bail was information of cardinal importance, and should have been conveyed to the prosecutor. I should comment that I find the argument that Constable January’s failure in this regard was not the factual cause of Respondents further the detention, because the prosecutor would have opposed bail notwithstanding his views, ignores the fact that this notwithstanding it would be the prosecutor’s obligation to bring this to the Magistrate’s attention, and on an application for bail, in those circumstances, the Magistrate may well have proceeded with the inquiry the arresting officer and investigating officer’s attitude being a most important part of that inquiry.  Whilst this was not a wilful distortion of the truth, it was  a serious omission, indeed one which I have no doubt vests liability for the continued wrongful detention of Respondents in the  First  Appellant.

[44]	The only question which remains is whether the prosecutor in the service of Second Respondent acted in a manner which constitutes actionable liability constituting a further wrongful detention.

[45]	It was made clear in this court in Botha v Minister of Safety and Security and Others;  January v Minister of Safety and Security and Others 2012 (1) SACR 305 (ECP) at para 32 that prosecutors have a duty to carry out their public functions independently and in the interests of the public and in so doing obliged to act in accordance with the requirements of the Constitution and must have regard to the rights of the accused person.  Such rights include the accused’s rights to bail and not to be detained arbitrarily and without just cause. It was pointed out that whilst the question of bail consideration is pre-eminently a matter for the judicial officer the information furnished to the judicial officer can only come from the Prosecutor, at least at that stage. The court held that the Prosecutor had a duty to place before the court any information relevant to the excise of the discretion with regard to the granting refusal of bail.

[46]	In my view, it is not open to the Prosecutor in this matter to simply take the approach blindly that schedule 6 offences require bail to be opposed on all occasions.  It simply must be accepted that each case has to be looked at in its own circumstances and that the Prosecutor should at least ascertained from the investigating officer and arresting officer, in the absence of same, what the attitude of the police was to the granting refusal of bail and not adopt what amounts to a one-size-fits-all attitude.  As was said in Botha (supra) at [33] prosecutors have a duty to establish the facts relevant at least from the police official investigating the case such as would justify the further detention of the arrested person.  It was said that a prosecutor has to protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances irrespective of whether they are to the advantage or disadvantage of the suspect. The question is whether absent this inquiry and information, the Prosecutor was justified in opposing the granting of bail  upon the Respondent’s first application therefore, let alone failing to inform the magistrate of the state of affairs in this regard, and if not whether this rendered that further detention unlawful as a result.

[47]	In my view, in the circumstances of this matter, it cannot be otherwise, and  this is not impacted by the Respondent subsequent decision not to persist in the application for bail. They were, it seems, clearly unaware of the investigating officer’s approach to bail and were not placed in a position to make a sensible decision in this regard. In my view, the Prosecutor was apparently unaware that the arresting officer and investigating officer had not completed a fresh bail information form in respect of the arrest, nor did she appear to be aware that in the previous bail information form there was no indication that release from custody would be opposed. She took no steps to inform herself of the police attitude and approach to bail.  This compounds the conclusion which I have already reached above and puts same beyond doubt. It seems to me, that it is not necessary to go further, and find that had this information be conveyed to the presiding officer bail would have been granted. See also Minister of Police and Another versus Du Plessis 2014 (1) SACR 217 (SCA) (20 September 2013) at paragraphs 10 to 16.  It seems to me that on the probabilities this is sufficient to establish on a balance of probabilities that had the police and prosecutor carried out this obligation, bail would have been afforded the respondents. 

[48]	In the result, I find that the Magistrate cannot be faulted in placing the further detention also at the hands of the employees of Second Appellant as vesting liability for the full period of their further detention.

Quantum:

[49]	Having considered the authorities referred to by both counsel, and although I consider the award of damages in respect of the first day of detention as at the upper scale of what might be awarded, this seems to me to be no basis for interfering with the magistrates decision in this regard.

[50]	In respect of the argument that the Magistrate erred in respect of his determination of the appropriate interest order, again, I can find no merit herein whatsoever.

[51]	In the result, the following order issues:
The appeal is dismissed with costs.

_________________________
M.J LOWE 
JUDGE OF THE HIGH COURT

SMITH J:

I concur.  

_________________________
J SMITH
JUDGE OF THE HIGH COURT

APPEARANCES:		For the Appellants:  Adv. F. Petersen
Enzo Meyers Attorneys
100 High Street
GRAHAMSTOWN

(Ref:  AF Basson/bv/M014)

For the Respondent:  Adv. J.W. Wessels
Dold and Stone
10 African Street
GRAHAMSTOWN

(Ref:  Ms Y Wolmarans (P McKenzie/tash/C18)