Banda v Minister of Police (CA 99/2020) [2021] ZAECGHC 55 (8 June 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CA 99/2020

In the matter between:

NKOSINATHI

JUSTICE BANDA Appellant

and

MINISTER OF POLICE N.O .

Respondent

JUDGMENT

MBENENGE JP:

Introduction

[1] On 1 March 2014, the appellant, who had been suspected of committing attempted murder, was arrested and detained by the police. He was released on bail after his appearance in court on 3 March 2014.

[2] Aggrieved by these events, the appellant’s quest to recover damages was unsuccessful, the court a quo having dismissed the claim with costs upon finding that the appellant had not established that the discretion to arrest him was exercised irrationally and improperly and that the unlawfulness of the detention had not been proven.

[3] This appeal is against that decision, and serves before this court with the leave of the court a quo.

The pleadings

[4] The appellant pleaded a two-pronged case, the first of which itself comprised two parts: first, that his arrest without a warrant by Lieutenant Colonel Van Zyl was unlawful in that the arresting officer had insufficient grounds to reasonably suspect the appellant of committing attempted murder, a Schedule 1 offence; in the alternative, that LTC Van Zyl[1] improperly exercised his discretion to arrest or not arrest the appellant; second, that the resulting detention on the same day at the Church Street Police Station was wrongful and unlawful.

[5] The second prong concerned the appellant’s continued detention from the time a police docket recording a charge of attempted murder was opened, upon his arrest and initial detention, up to and including 3 March 2014 when he was released by the Uitenhage Magistrate’s Court.

[6] The respondent pleaded that the appellant’s arrest and his subsequent detention were lawful, having been effected in terms of section 40 (1) (b) of the Criminal Procedure Act 51 of 1977[2] and justified by reason thereof that the appellant had been reasonably suspected of involvement in a road rage incident during which he committed attempted murder, alternatively malicious damage to property; the appellant was arrested with the intention of bringing him to justice.

[7] The appellant’s detention, further pleaded the respondent, was in terms of sections 39 and 50 of the CPA.

Pre- trial proceedings

[8] At pre-trial conference stage the parties’ legal representatives made common cause of the following:

[8.1] that there would be no separation of issues in terms of rule 33 (4) of the Uniform Rules of Court;

[8.2] that the respondent would bear the onus to justify the arrest and resulting detention and, to that end, would adduce evidence first;

[8.3] that on 1 March 2014 at approximately 11:00, the appellant and Mr Darius Coetzee[3] were involved in an argument at or near the corner of Graaff-Reinet and Thorn Streets, Uitenhage;

[8.4] that the appellant and the complainant remained seated in the driver’s seats of their respective vehicles during the argument; and

[8.5] that during the argument the complainant accused the appellant of driving recklessly.

[9] The pre-trial conference minutes also record the appellant as having merely “noted” the respondent’s stance that, in the event of any quantum awarded to the appellant falling within the jurisdiction of the magistrates’ courts, costs awarded to the appellant would be taxed on the commensurate scale. This is in line with the replication wherein the appellant contends that, regard being had to the fact that the cause of action arose from actions which constituted an infringement of his constitutional rights, costs should be allowed on the high court scale.

[10] During case flow management, and upon being asked whether a summary of the issues which the presiding judge would be required to determine at trial stage had been agreed upon, the parties responded:

“Yes. The judge will be required to determine the lawfulness of the [appellant’s] arrest, detention, further detention and quantum.”

[11] The parties further agreed that, irrespective of the claim that the court would uphold, R120 000 in damages would be a fair and equitable award.

Trial proceedings

[12] True to agreement, the respondent adduced evidence first, with Van Zyl, the arresting officer, testifying as the respondent’s only witnesses: On the day in question, at approximately 11:40, he received a report concerning a road rage-related incident and immediately proceeded to Penford Pick ‘n Pay, where he found the complainant hiding in the manager’s office. The complainant looked terrified. Van Zyl interviewed the complainant. The complainant explained that he had been involved in a fracas with the driver of a white VW vehicle - a black male who he described as having been “well built.” According to the complainant, the VW driver pursued him for quite a distance. At some point, the complainant pulled up next to the VW, in the vicinity of the bridge in Daniel Pienaar Road. When the vehicles were parallel to each other, the VW driver drew a firearm, which the complainant thought was a 9mm pistol, and fired one shot at the complainant. The bullet went through the complainant’s vehicle, but missed his head, exiting through the front passenger window. The window broke into a shatter of glass. Van Zyl inspected the vehicle and verified this; glass debris were found inside the vehicle, but no cartridges or projectiles were found.

[13] Van Zyl made his observation at the alleged scene of the incident, in Daniel Pienaar Road, the spot to which the complainant directed him. He found glass debris similar to those found in complainant’s vehicle, an Opel Corsa.

[14] Against this background, Van Zyl became satisfied that there had been a shooting incident. He testified:

“The glass was there and it is obvious with regard to the explanation of the windows that was open, as the glass were lying on the left hand side of the road, it could only have been that window that was broken. If it was any of the other windows then the glass would have lied in the middle of the road.”

[15] Upon his return to the police station, Van Zyl noticed, parked outside the police station, a VW Golf TSI. Subsequent thereto, during his interaction with Van Zyl, the appellant placed himself at the scene as having been the driver of the VW, who had been involved in a heated argument with the Corsa driver along Daniel Pienaar Road, an incident he said was followed by a car chase.

[16] Upon reading the complainant’s statement enclosed in the relevant police docket, Van Zyl arrested the appellant for attempted murder. No other shooting incident had been reported to him. Had there been, he would, as relief commander, have known of such incident.

[17] In Van Zyl’s view, the appellant could not be released on police bail[4] because he had been arrested for suspected commission of a Schedule 1 offence.

[18] Warrant Officer Van Greunen[5] opened the relevant police docket at 20:40. According to Van Zyl, Van Greunen, too, did not have the discretion to release a suspect facing an attempted murder charge.

[19] Van Zyl further testified that a member of the police service who, to the best of his recollection was Van Greunen, called the senior public prosecutor, Mr Kleinhans, discussing the possibility of the appellant’s release on prosecutor’s bail.[6] The prosecutor was of the view that, because attempted murder is a Scheduled offence, releasing the appellant on bail at that point would not be possible. For his part, the investigating officer had no objections to the appellant being released on bail on his first appearance in court.

[20] In the course of time, due to paucity of evidence, the prosecution withdrew the charge the appellant had been facing.

[21] The appellant testified in pursuit of his claim: On the day in question, whilst driving from Kwa-Nobuhle to Penford Pick ‘n Pay, he was involved in a road rage incident with a person who had been driving an Opel Corsa. After changing lanes, the visibly agitated Corsa driver pulled next to his vehicle on the right hand-side. Through an open window, the Corsa driver hurled a slur at him, using the “K”- word. He followed the Corsa as it was being driven down Thorn Street, made a U-turn in Daniel Pienaar Street, and Spencer Street, into Pick ‘n Pay. Both vehicles got to be stationery in front of the main entrance at Pick ‘n Pay. The Corsa driver jumped out of his car and then ran into Pick ‘n Pay, disappearing into the multitude of people who were there on that day. Realising the difficulty he would encounter in tracing the Corsa driver amid the multitude, the appellant left that scene and attended to other chores, elsewhere.

[22] When the appellant later returned to Pick ‘n Pay, a certain lady told him that “there were police [t]here and [the boy the appellant had chased] was talking to the police.” This report prompted him to proceed to the police station.

[23] On arrival at the police station, the appellant informed the police officer “at the counter” that there had been a road rage incident about which he had come to enquire, adding that a lady he met at Pick ‘n Pay had told him that “there were police there with a gentleman that [he] chased into the shop.” This culminated in Van Zyl being called to the police station and, together with Capt Knoetze, interacting with the appellant. The appellant was offered a seat and asked whether he was the driver of a white Polo vehicle, which he answered in the negative. One of the policemen he interacted with busied himself with paperwork, whereafter he was arrested for attempted murder, incarcerated in Uitenhage police cells for the entire weekend, and released upon appearing in court on Monday.

[24] During cross-examination, the appellant was challenged to explain precisely what he had gone to do at the police station, the suggestion being that part of Van Zyl’s statement comprised information gleaned from the appellant. The appellant disputed this.

The judgment of the court a quo

[25] The court a quo identified the issues for determination “[as having been] whether the arrest and detention of the [appellant] were lawful.”

[26] The following excerpts from the judgment a quo capture the essence of the finding in relation to the arrest:

“[36] If reliance were to be placed on [Standing Order G341][7] can it be said that Van Zyl did not exercise his discretion in a proper manner? Readily, I find that nothing has been said (by the [appellant]) to suggest that. Even his particulars of claim are silent on that aspect. On the facts, I am unable to find that he exercised his discretion improperly.

[37] There is no semblance of evidence or allegation on the pleadings that suggest that Col. Van Zyl was actuated by mala fides or motivated by ulterior motives at the time he effected the arrest. . .

[39] On the evidence before me, I am unable to find that the decision of Col. Van Zyl in arresting the plaintiff was irrational and therefore unlawful.”

[27] Apropos the detention, the court a quo pronounced:

“[38] No evidence was led by the [appellant] regarding the second claim except for what is contained in the particulars of claim. The [appellant] who [bore] the onus did not deal whatsoever in his evidence with the role played by Warrant Officer Van Greunen in his arrest or further detention. Neither did the [respondent] call Warrant Officer Van Greunen who charged the [appellant] later on the day of his arrest.”

The appeal

[28] An observation needs to be made before the substance of this appeal is delved into.

[29] Both in his heads of arguments and at the hearing, Mr Barnett, who appeared for the respondent, contended that, by virtue of sections 39 (3)[8] and 50[9] of the CPA, a finding that the arrest was lawful would render the ensuing detention automatically lawful. For this contention, he placed reliance on Jacobs v Minister of Safety and Security,[10] where it was held:

“[41] On the pleadings in this matter which I have set earlier herein the appellant’s case was that his arrest and detention was unlawful because Makaula had no reasonable and probable cause to believe, nor did he have any belief that the appellant had been involved in an armed robbery. . . On this understanding the respondent raised section 40 (1) (b) of the CPA as a full justification not only for the arrest, but also for the ensuing detention. This was not met with an exception alleging that the plea lacked averments necessary to sustain a defence nor was any replication forthcoming. On this basis the parties proceeded to trial. On the pleadings therefore, provided the respondent is able to establish that the initial arrest was lawful, I think that it follows, ex lege, that the ensuing detention was lawful unless and until it becomes unlawful for some other reasons. If the appellant on the facts of this case, wished to rely on extraneous circumstances, outside of the arrest itself, for the contention that the detention became unlawful at some subsequent stage it was incumbent upon the appellant to plead this.” (emphasis supplied)

[30] In the instant matter, too, argued Mr Barnett, once the initial arrest is found to have been lawful, it follows, ex lege, that the ensuing detention would be lawful, unless and until it becomes unlawful by some other reasons. This submission requires scrutiny.

[31] To begin with, the statement in Jacobs is not an unqualified one. The qualification is signified by the preface “[o]n the pleadings therefore.” The remarks made in Jacobs could hardly have been intended to serve as a “one-size-fits-all” principle, such as contended for by the respondent.

[32] Detention is, in and by itself, prima facie unlawful. Therefore, the onus rests on the detaining officer to justify the detention. This principle was aptly stated in Mahlangu,[11] where it was held that, once it has been established that the constitutional right not to be deprived of one’s physical liberty has been interfered with, the deprivation is prima facie unlawful and the infringer bears the onus to prove that the interference was justified.

[33] The respondent’s contention also flies in the face of M R v Minister of Safety and Security,[12] where the court held that an arrest and detention are separate legal processes, so much so that while the arrest may be lawful, the detention may be unlawful; the fact that both result in someone being deprived of her or his liberty does not make them one legal process.[13]

[34] In Botha[14] the court held:

“[29] It is also trite law that in a case where the Minister of Safety and Security (as defendant) is being sued for unlawful arrest and detention and does not deny the arrest and detention, the onus to justify the lawfulness of the detention rests on the defendant and the burden of proof shifts to the defendant on the basis of the provisions of section 12(1) of the Constitution. . . . These provisions, therefore, place an obligation on police officials who are bestowed with duties to arrest and detain persons charged with and/or suspected of the commission of criminal offences, to establish before detaining the person, the justification and lawfulness of such arrest and detention.

[30] This, in my view, includes any further detention for as long as the facts which justify the detention are within the knowledge of the police official . . . In Mvu v Minister of Safety and Security[15] Willis J held as follows:

‘It seems to me that, if a police officer must apply his or her mind to the circumstances relating to a person’s detention, this includes applying his or her mind to the question of whether detention is necessary at all.’

It goes without saying that the police officer’s duty to apply his or her mind to the circumstances relating to a person’s detention includes applying his or her mind to the question whether the detention is necessary at all.’”

[35] I am not unmindful of the fact that the cases cited above relate to detention in the context of a court appearance where an enquiry had to be made whether there was justification for the continued detention of the detainee, or not. In my view, the principle enunciated in these cases applies with more force to detention following upon an arrest, but before the person concerned is caused to appear in court, the trite legal position being that the unlawful detention of an arrestee does not necessarily depend on whether the original arrest was lawful or not. Justification for the detention following upon an arrest until a detainee’s first appearance in court continues to rest on the police.[16]

[36] In any event, quite distinguishable from Jacobs,[17] the pleadings in the instant matter did not permit of a shift of the onus to the appellant to justify the detention. The appellant pleaded his cause of action based on his detention and “further detention” separately. The respondent pleaded likewise. The plea further attracted the delivery of a replication wherein the appellant disputed the lawfulness of the detention.

[37] In these circumstances, reliance on Jacobs in pursuit of the contention that a finding of the lawfulness of the arrest would render the ensuing detention automatically lawful is misplaced. In the light of the view I take of this matter, however, this issue needs no further belabouring.

The lawfulness of the arrest.

[38] Section 40 (1) (b) of the CPA, upon which the defence of the claim in relation to which the arrest was founded, provides that “a peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1.”

[39] The jurisdictional factors for invocation of section 40 (1) (b) are that-

(a) the arrestor must be a peace officer;

(b) the arrestor must entertain a suspicion;

(c) the suspicion must be that the suspect committed an offence referred to in Schedule 1; and

(d) the suspicion must rest on reasonable grounds.[18]

[40] If the arresting officer succeeds in establishing these factors, the arrest would be lawful, unless the plaintiff establishes that the discretion to arrest him/her was exercised in an unlawful manner.[19] By the same token, if one or more or all of the jurisdictional factors is/are not met, the arrest would be unlawful. The first port of call is thus an enquiry into whether or not the jurisdictional factors were established.

[41] It is not disputed that Van Zyl is a peace officer; that attempted murder is listed in Schedule 1 to the CPA; and that Van Zyl entertained a suspicion that the appellant had committed attempted murder. The dispute is about whether Van Zyl’s suspicion rested on reasonable grounds, which must be considered against the applicable principles and the relevant factual matrix.

Was the suspicion based on reasonable grounds?

[42] This question must be approached objectively.[20] The circumstances giving rise to the suspicion must be such as would ordinarily move a reasonable person to form the suspicion that the arrestee has committed a First Schedule offence.[21]

[43] The approach adopted by Jones J in Mabona and Another v Minister of Law and Order and Others[22] still holds sway. He stated:

“. . . It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorizes drastic police action. It authorizes an arrest on the strength of a suspicion and without the need to swear out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. The reasonable man will therefore analyze and assess the quality of the information at his disposal critically and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.” (emphasis supplied).

[44] Prior to arresting the appellant, Van Zyl had interviewed a terrified and stress-stricken complainant who gave a verbal account of what had befallen him. He surveyed the scene pointed out to him by the complainant where the alleged shooting took place and found broken glass on the northern lane on Thorn Street. Glass was also found inside the complainant’s car. The complainant had, in his statement made to Sgt Cloete at 12:45, given a different location of where the alleged shooting had taken place; the complainant had said it took place on the southern lane of Thorn Street, in the vicinity of the bridge, and not the northern side where Van Zyl found the glass.

[45] Van Zyl was criticized for not having analysed and assessed the quality of the information at his disposal and on the strength of which his suspicion rested. It was argued, in the first place, that he neither collected any glass found at the alleged scene to compare it to that found in the complainant’s car to see if it matched nor took photographs of the glass at the scene or in the vehicle. Had he done so, he would have been able to substantiate his suspicion and act reasonably. It was also contended that the complainant had contradicted himself in relation to the precise location of the spot where the shooting had taken place.

[46] In my view, the criticism levelled against Van Zyl is not justified. We should remind ourselves of the observation made by Smith J in Mkhwanazi and Another v Minister of Police[23] that “when the lawfulness of arrests is challenged by disgruntled suspects, the conduct of peace officers is critically picked apart by lawyers and pronounced upon by judicial officers” and “in the sterile environment of the court of law their best intentions count for nought since their actions are considered objectively and measured against the exacting standards of the mythical ‘reasonable man.’”[24]

[47] Van Zyl verified the information with which the complainant furnished him. Before arresting and after having spoken to the appellant at the police station, Van Zyl retrieved the affidavit deposed to by the complainant to Sgt Cloete, the content of which fulfilled the elements of attempted murder. The identity of the suspect was beyond doubt because the appellant had placed himself at the scene. The only thing the appellant denied was shooting. No suggestion was made that the fright and agony written on the face of the complainant was self-created or artificial.

[48] Broken glass was found in the vicinity of the scene which, hitherto, Van Zyl was not aware of. Comparing the glass found in the car and that picked up at the scene is a matter of detail which, in my view, did not detract from the reasonableness of the suspicion harboured by Van Zyl that the appellant had committed attempted murder. At that time, Van Zyl was also not aware that the complainant had contradicted himself in relation to the precise spot of the shooting. The criticism on this score is tantamount to imputing certainty in an instance where it did not have to be established.

[49] The conclusion to which I come is that Van Zyl’s belief that the appellant had committed attempted murder rested on reasonable grounds. The respondent discharged the onus to justify the arrest.

The exercise of the discretion to arrest.

[50] Where, as here, the jurisdictional facts for a lawful arrest have been established, the discretion whether or not to arrest arises.

[51] The appellant bears the onus to allege and prove that the decision to arrest him was exercised improperly.[25]

[52] Contrary to the court a quo’s assertion, the question whether the appellant established that the discretion to arrest him was exercised properly is pertinently raised in the pleadings. In paragraph 4.5 of the appellant’s amended particulars of claim it is alleged:

“The SAPS members failed and/ or neglected to take relevant considerations into account when they exercised their discretion whether to arrest and detain the plaintiff. Their failure to take these relevant consideration into account caused the [exercise] of their discretion to arrest and detain the plaintiff to be irregular, with the result that the plaintiff’s arrest, detention, and continued detention [were] unlawful, unreasonable and arbitrary.”

[53] The same contention is raised in the appellant’s replication, as follows:

“In any event, should the defendant prove the existence of [the jurisdictional facts to arrest], the plaintiff replicates that the SAPS members neglected to take relevant considerations into account when exercising their discretion to arrest and detain the plaintiff and that, as a consequence of their failure to take these relevant considerations into account, the [exercise] of their discretion to arrest and detain the plaintiff was irregular, with the result that the plaintiff’s arrest, detention and continued detention [were] unlawful, unreasonable and arbitrary.”

[54] The issue relating to whether the discretion to arrest was properly exercised is the bedrock of the court a quo’s principal finding. Both in the parties’ heads of argument and at the hearing a significant portion of time was devoted to arguing this issue.

[55] It is trite law that it is incumbent on the arresting officer to exercise the discretion to arrest the way he deems fit, provided the discretion is exercised in good faith, rationally, and not arbitrarily.[26]

[56] The court will not interfere where the discretion has been exercised bona fide or the judgment of the functionary concerned was bona fide expressed.[27]

[57] It is also trite law that the decision to arrest must be based on the intention to bring the arrested person to justice.[28]

[58] Asked why he decided to arrest, and not summon the appellant to appear in court, Van Zyl responded:

“[A]ttempted murder is a very serious offence and I had in my mind reasonable ground to believe that this person committed the crime. I had on the scene a terrified young man hiding from this person that wants to shoot him, this complainant explained to me exactly what happened, I inspected his car . . . I saw that the window was broken, I took him to the police station and I checked the car properly there and everything that he told me there was exactly the same.”

[59] Van Zyl stated the object of the arrest of the appellant as having been to bring him before court. He conceded that, even though there were further investigations to be conducted, primarily for the primer residue test to be conducted and “information with regards to the incident” gleaned by the investigating officer, the appellant did not need to be in custody for that reason. He was, however, emphatic that he could not exercise his discretion in favour of releasing the appellant, due to the seriousness of the alleged offence.

[60] In these circumstances, the finding of the court a quo that the appellant did not discharge the onus of proving that Van Zyl exercised his discretion irrationally and that the arrest was, therefore, lawful cannot be faulted.

The detention

[61] The circumstances under which an arrested person may be released from custody before their first court appearance are circumscribed. Both sections 59 (1) (a) and 59 A (1) of the CPA deal with police bail and prosecutor’s bail, respectively. These sections fetter the discretion of the police. They render it well neigh impossible for the police to grant bail in terms of section 59 of the CPA, as attempted murder is listed in Part II or Part III of Schedule 2 to the CPA. Van Zyl testified as much, adding that the police’s enquiry regarding the appellant’s release on prosecutor’s bail yielded nought as prosecutors are precluded from granting bail to persons suspected of committing offences listed in Schedule 7 to the CPA.[29]

[62] The situation posed by this case is res ipsa loquitur.[30] As at the time the police docket was opened and the appellant locked in police cells, he had already been in police custody and thus in detention by reason thereof that Van Zyl had, as already stated, not seen his way clear to releasing him.

[63] Reference on the part of the appellant to “further detention” was the subject of debate at the hearing of this matter. In the circumstances of this case the notion of “further” or “continued” detention as a cause of action separate from the appellant’s “initial detention” may constitute a red herring; it creates the impression that multiple police officers might have an obligation over the weekend, when suspects are lawfully arrested and detained on Friday so as to appear in court on the ensuing Monday, to come onto the scene and each apply their mind to the consequences of a lawful arrest and ensuing detention. The appellant was arrested and thereupon detained continuously until he was released on bail by the court. Therefore, the fact that Van Greunen, who is said to have further detained him did not testify, ought not to alter the situation.

[64] I am satisfied that the police discharged the onus resting on them to justify the appellant’s detention, as well. The appeal falls to be dismissed.

Costs

[65] There is no impediment to costs following the result. This case turns on facts. There is nothing novel about it. It is a mere delictual claim such as frequently find their way to our courts’ doors. Suing the police for damages for wrongful arrest and detention is now commonplace and is not tantamount to testing one’s constitutional right in the manner contemplated in Biowatch.[31]

[66] The remarks by Madlanga J in Mbatha[32] are helpful. He said:

“[W]hat is in essence a factual dispute may not morph into a constitutional issue through the simple facility of clothing it in constitutional garb”

and that-

“[W]here it is clear that the substance of the contest between the parties is purely factual, it cannot be said to raise a constitutional issue purely because the applicant says it does.”[33]

That is the way to go in this matter.

Order

[67] The following order is made:

The appeal is dismissed with costs.

_____

S M MBENENGE

JUDGE PRESIDENT

OF THE HIGH COURT

PAKATI J:

I agree.

______

B PAKATI

JUDGE OF THE HIGH

COURT

GOVINDJEE AJ:

____

A GOVINDJEE

ACTING JUDGE OF

THE HIGH COURT

Appellant’s counsel

: G Wolmarans

Appellant’s attorneys : Whitesides Attorneys

Grahamstown

Respondent’s counsel : A C Barnett

Respondent’s attorneys : Lulama Prince Attorneys

Date matter heard : 13 April 2021

Date judgment delivered : 8 June 2021

[by electronic mail transmitted to the parties’ attorneys, in terms of paragraph 68 of the Eastern Cape National State of Disaster Management Directions]

[1] Otherwise conveniently referred to as “Van Zyl”.

[2] Herein after referred to as the CPA.

[3] Otherwise herein after referred to as “the complainant.”

[4] This concept is derived from section 59 (1) (a) of the CPA, which reads: “An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his or her appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.”

[4] This concept is derived from section 59 (1) (a) of the CPA, which reads:

“An accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 may, before his or her appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.”

[5] Herein after otherwise conveniently referred to as “Van Greunen.”

[6] This is authorised by section 59 A (1) of the CPA, which reads: “An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.”

[6] This is authorised by section 59 A (1) of the CPA, which reads:

“An attorney-general, or a prosecutor authorised thereto in writing by the attorney-general concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.”

[7] The standing order provides: “. . . [E]ach case must be dealt with according to its own merits. A member must always exercise its discretion in a proper manner when deciding whether a suspect must be arrested and rather be dealt with in accordance with (3) below.”

[7] The standing order provides:

“. . . [E]ach case must be dealt with according to its own merits. A member must always exercise its discretion in a proper manner when deciding whether a suspect must be arrested and rather be dealt with in accordance with (3) below.”

[8] The subsection reads: “(3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.”

[8] The subsection reads:

“(3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.”

[9] Section 50 prescribes the manner in which suspects must be dealt with after their arrest and enshrines the principle that an ordinary suspect may not be detained indefinitely without the knowledge of and intervention by a lower court.

[10] 2013 JDR 2098 (ECG).

[11] J E Mahlangu and Another v Minister of Police [2021] ZACC10 at para 32.

[12] 2016 (2) SACR 540 (CC) at para 39.

[13] Also see Damise v Minister of Police (EL354/2018) [2019] ZAECELLC 34 (12 December 2019).

[14] Botha v Minister of Safety and Security, January v Minister of Safety Security 2012 (1) SACR 305 (ECP).

[15] 2009 (2) SACR 291 (GSJ), para 10.

[16] See Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) para 17.

[17] Id.

[18] Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818 G – H; Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) paras 6 and 28.

[19] Sekhoto, supra at 30 and 38.

[20] Mvu, para 9.

[21] Van der Merwe v Minister of Safety and Security 2014 JDR 2103 (GP) at 9.1; Mbodla v Minister of Police [2018] ZAECMHC 21, para 26).

[22] 1988 (2) SA 654 (SE), at 658 E- I.

[23] [2017] ZAECELLC 4.

[24] Id para 11.

[25] Sekhoto, para 49.

[26] Sekhoto, para 38; Masetla v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC), para 23.

[27] Shidiack v Union Government 1912 AD 642 at 651.

[28] Sekhoto, para 30.

[29] Fn 7 above.

[30] The thing speaks for itself.

[31] Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 114; 2009 (6) SA 232 (CC).

[32] Mbatha v University of Zululand [2013] ZACC 43; 2014 (2) BCLR 123 (CC), cited with approval in Minister of Safety and Security and Another v Marius Schuster and Another [2018] ZASCA 112, paras 25 and 26.

[33] Mbatha, para 22.