Minister of Police and Another v van Rensburg (CA65/2020) [2021] ZAECGHC 18 (16 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Reportable Yes

CASE NO: CA65/2020

Date heard: 22 January 2021

Date Delivered: 16 February 2021

In the matter between:

MINISTER OF POLICE

First Appellant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Appellant

and

EVAN RENSBURG Respondent

JUDGMENT

NOTYESI AJ:

INTRODUCTION:

1. The respondent, (E van Rensburg), sued the first appellant (the Minister of Police) and the second appellant (the National Director of Public Prosecutions), for damages arising from his alleged unlawful arrest and detention (the detention having spanned 15 September 2016 to 23 September 2016), jointly and severally for the combined amount of R400,000. The Regional Court Magistrate of Port Elizabeth, Ms V. Reddy, found that the arrest and detention of the respondent had been unlawful and awarded damages in favour of the respondent in the amount of R300,000, with interest from the date of summons to date of payment, plus costs. The Magistrate dismissed the claim against the second appellant but made no order as to the second appellants costs. This is appeal against the Regional Magistrate's

judgment and orders issued pursuant thereto.

2. The appeal is predicated mainly on the contention that the learned Magistrate erred in finding that the first appellant failed to discharge the onus resting upon the arresting police officer in terms of section 40(1)(b) of the Criminal Procedure Act, 51 of 1977

('the CPA'), to justify the respondent 's arrest and detention. The first appellant also contended that the Magistrate further erred in finding that the respondent's further detention, was unlawful as it was carried out in terms of the authority of the court orders made during the period of 19 to 23 September 2016. The second appellant contends that the Magistrate erred and misdirected herself

in not ordering the respondent to pay the costs of the second appellant upon the dismissal of the claim against him.

3. The appellants argued in the Magistrate's court and presently before this court that the arrest and detention of the respondent was

lawful and justified in terms of section 40(1)(b) read with sections 39 and 50 of the CPA.

BACKGROUND

4. At approximately 18h00 of Thursday, 15 September 2016, the respondent was brought to the Humewood Police Station by three male persons on allegations that he had stolen a laptop. The police officer on duty at that time was Sergeant Cimani ('Cimani'). The three males introduced themselves to Cimani as Kirsten, Ronalda and Christedel. Kirsten reported to Cimani that the respondent had stolen a laptop, had admitted to the theft thereof and even apologised for stealing the laptop. Kirsten wanted the police to open a case for theft of a laptop.

5. Cimani questioned the respondent about the allegations levelled against him but the respondent did not give any response. Upon further questioning Kirsten, Cimani was told that the laptop was the property of one Gwendoline Camelia Mohammed ('the complainant:), who did not accompany Kirsten and the others to the police station but had stayed at her flat. Cimani was disinclined to open a criminal case against the respondent without interviewing and obtaining a statement from complainant and Cimani insisted on her

presence at the police station.

6. The respondent was not arrested nor detained at this stage because the complainant was yet to make a statement. Kirsten fetched the complainant and brought her to the Police Station. Cimani interviewed her, took a statement from her and thereafter opened a

criminal case of theft against the respondent under case number Humewood CAS299/09/2016. Cimani also obtained the statement of

Kirsten, the person who had brought the respondent and made the initial report about the theft of the laptop. Both statements made

implicated the respondent in the crime of theft. Cimani decided to arrest the respondent and charge him accordingly. The respondent was advised of his constitutional rights at about 19h30.

7. Under cross-examination Cimani maintained her position that she arrested the respondent on the basis of the complainant's statement. The following excerpt of Sergeant Cimani's evidence from the appeal record captures the essence of the circumstances that culminated in the respondent's arrest and detention:

"Question: So then I put it to you sergeant that you made a mistake and hastily arrested the plaintiff without knowing the full story.

Answer: The complainant's story was enough for me to make an arrest.

Question: So you are relying on somebody else's information.

Answer: The reason why I arrested him is because the suspect agreed to the complainant.

Question: Once the statement was taken you were happy. You arrested him. Answer: Yes Your Worship."

8. On the day following the arrest, Friday 16 September 2016, the docket was attended to by Colonel Burger ('Burger') of the detectives. Burger testified that she received the docket in the early morning since the respondent had been arrested during the previous evening of 15 September 2016.

9. On reading the docket Burger concluded that more information was necessary to make a decision on how the question of the respondent's bail should be dealt with. According to Burger, this was precisely so because the respondent was only arrested the previous evening. For this reason, the respondent was not taken to court and Burger gave instructions for the outstanding information to be obtained. The police had to conduct further, preliminary investigations, for purposes of bail. The police had to profile the respondent, obtain his fingerprints, verify the address given by him, establish whether he had previous convictions and pending cases and obtain outstanding statements. The docket was then attended by the police officials on 16 September 2016 for compliance with the instructions of Burger.

10. On the same day, 16 September 2016, the fingerprints of the respondent were obtained and he was interviewed by the police. He gave an address which had to be verified. He was again informed of his rights which according to the warning statement, were read to him by the investigating officer. The respondent elected to remain silent, stating that he will speak in court.

11. On 17 September 2016, Burger further inspected the docket and satisfied herself that all information necessary for bail application

was obtained and that the matter was ready for enrolment at court. All the relevant information pertaining to bail was placed in the docket. The matter was enrolled for the respondent's first court appearance on Monday, 19 September 2016.

12. The prosecutor in question decided to prosecute the respondent with the theft of a laptop which is a schedule 1 offence. In court,

the respondent was informed of his rights by the presiding Magistrate and he was assigned a Legal Aid attorney who represented him on the same day.

13. During the court proceedings, the presiding Magistrate enquired from the respondent whether he had previous convictions and pending cases in terms of section 60(ii)(B) of the CPA. The respondent's attorney advised the court that the respondent had no pending cases nor previous convictions. The prosecutor on the other hand submitted that the respondent indeed had previous convictions or

pending cases, and applied for a postponement of the matter to 28 September 2016, to verify her information. The magistrate exercised

her discretion and postponed the matter to 20 September 2016.

14. On 20 September 2016, the respondent appeared in court, represented by Mr Dyantyi of the Legal Aid Offices. On this day, the prosecutor, Ms Hamnet ('Hamnet'), applied for the postponement of bail proceedings in order to verify the address and identity number of the respondent. The Magistrate postponed the bail application for those reasons. Again, on 21 September 2016, the bail application of the respondent was postponed to 23 September 2016 because there were still problems with the address of the respondent which needed to be verified.

15. It is important to record that Warrant Officer Smouse ("Smouse") went to no.3 Sarona Street, which was the address given to the police by the respondent. Smouse, met with Mrs Jooste ('Jooste'), a resident at the respondent's given address. Jooste is also the grandmother of the respondent. Jooste denied that the respondent was residing at that address, and instead, informed Smouse that the respondent was cohabiting with his girlfriend and that she did not know their address. In other words, the respondent gave a false address to the police.

16. Before the hearing scheduled for, 23 September 2016, the police met with the cousin of the respondent, Maurisha who resides at no.10655 Chatty, Greenfield. She undertook to monitor the respondent and requested that he be released to her address. Maurisha gave her

address for the respondent's release on bail and the question of an address for the respondent was resolved. The investigation in respect of the pending case or previous conviction had been completed. Given the fact that the question of the respondent's address had been resolved, the respondent was released on warning on the same day and the matter was postponed to 12 October 2016.

17. Five witnesses testified at the trial. The respondent testified on his own behalf. Cimani, Burger, Smouse and the state prosecutor, Hamnet. Testified on behalf of the two appellants.

18. Exhibits such as cell register, SAPS 10, copy of J5 and annexures, face of police docket investigations and instructions, warning statement of witnesses, bail information and investigation diary all formed part of the appeal record. I had regard to those documents and examined the relevant content to resolve some factual disputes arising from testimonies of the witnesses and the evidence, in instances of mutually destructive versions.

19. The Magistrate did not make any formal findings on the credibility of witnesses and this court is therefore obliged to consider these aspects as they appear from the record.

FACTUAL ANALYSIS AND COURT FINDINGS

20. It is the duty of the trial Court to evaluate evidence, decide on credibility of witnesses and whether the probabilities favour one or the other version, and finally decide what evidence is acceptable, and why. Equally, the trial Court must examine the evidence presented by witnesses in its totality. Peace Hassan Mtola v Minister of Police[1]. The Magistrate did not deal with credibility findings, as stated before. Instead, the Magistrate was rather critical of the arresting

officer's actions for arresting the respondent based on what she regarded as "hearsay" evidence. This finding does not bear close scrutiny.

21. It is well established law that a Court of appeal is only at liberty to interfere with the findings of fact and inferences drawn by the trial Court, if there is a clear misdirection on the facts by the trial Court and the Court of appeal is satisfied that the trial court had reached a wrong conclusion[2]

22. In Minister of Safety and Security and others v Craig[3] , Navsa JA held:

"Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness' demeanour, but predominantly upon inferences and other facts and upon probabilities. In such a case a court of appeal with the benefit of a full record may often be in a better position to draw inferences."

23. This approach by the SCA should be followed to resolve the central issues germane to the subject of the dispute, In the present matter, as said before, the Magistrate made no credibility findings and where she does criticise the appellant's witnesses, such

criticisms are not borne out by the record and there are misdirections both on fact and law. The reasons of the Magistrate in relation to the facts of this case and the information upon which the arresting officer acted upon, is flawed and based on incorrect facts. The arresting officer clearly acted on the strength of information she received and formed her own reasonable suspicion. She did not act on hearsay, as the Magistrate found. This is a misdirection. I have had regard to the fact that the arresting officer repeatedly stated that she acted "[on] the statement of the complainant after it was obtained." A proper approach would have been to consider the content of the statement, which formed the basis of the arresting officer's suspicion that the respondent had committed an offence. On the Magistrate's construction of hearsay no police officer could ever carry out a lawful arrest unless he or she was an eyewitness to the crime.

24. The Magistrate in her reasons stated that, "On 16 September 2016 when Colonel Burger received the docket she was satisfied that there was no evidence implicating the plaintiff of the crime of theft." Burger was pertinently cross-examined on this aspect. Below is the relevant excerpt from the transcript which flies in the face of the Magistrate's conclusion:

"Question: I put it to you that if you had applied your mind properly and read the two statements you would have said there is no evidence against this person. He should be immediately released on a SAP328. What is your comment on that?

Answer: I do not agree."

25. The Magistrate's conclusion that the arresting officer, relied upon hearsay evidence is a material misdirection on both fact and

law. The arresting officer clearly stated that she had relied on the complainant's statement which convinced her that the respondent was sufficiently implicated to suspect him of theft.

26. It should also be remembered that Cimani had initially refused to open a case, when the report was first received from the witnesses, Kirsten and his friends in the absence of the complainant. She also insisted on the presence of the owner of the laptop before taking any further steps in the matter. She took a statement from the complainant under oath and investigated the reasons behind the suspicion against the complainant. This indicates a cautious approach. The complainant confirmed under oath that the respondent

admitted to theft of a laptop.

27. The respondent was only arrested after the complainant's statement was obtained. The statement established a prima facie case of theft. The respondent never denied the allegations against him, even in his own version. Also in his warning statement, the respondent elected to remain silent and to speak in Court.

28. The Magistrate did not deal with the evidence of the respondent. The respondent's testimony contains material contradictions and, he introduced new facts in his testimony which were neither part of his pleadings nor were the alleged facts put to the appellants' witnesses.

29. The respondent did not plead that when he was at Mount Road Police Station, he was handcuffed by the police at the instance of Kirsten. This allegation was only introduced by the respondent in evidence. The allegation that the respondent was detained for two hours before his arrest is yet another example of respondent's exaggeration of the events. Whilst the respondent testified that he was brought from Mount Road Police Station to Humewood in a police van, no one else testified about this police van from Mount Road

Police Station. It is unlikely that a police officer from Mount Road Police Station would not have discussed the matter with Sergeant

Cimani at the Humewood Police Station.

30. The respondent in particulars of claim suggested that his constitutional rights were not explained to him. However, during the cross-examination, he admitted that he was informed of his constitutional rights. The version of the respondent ought to have been rejected in view of all the contradictions in his testimony.

31. The testimonies of the appellants' witnesses per se does not necessarily result in the discharge of the onus resting on the first appellant. This Court must still examine the averments of the arresting officer insofar as the arrest and detention are concerned.

LEGAL PRINCIPLES

32. The first appellant relied upon the provisions of section 40(1)(b) of the CPA to justify the respondent's arrest and detention. The aforesaid section empowers a peace officer to arrest without a warrant any person "whom he reasonably suspects of having committed an offence referred to in schedule 1, other than the offence of escaping from custody". By now it is axiomatic that all the other requirements have been discussed and what must still be inquired into is whether Cimani had reasonable suspicion.

33. In Minister of Safety and Security v Sekhoto[4], Harms DP stated:-

• as was held in Duncan v Minister of Law and Order[5], the jurisdictional facts for a s 40(1)(b) defence are that (ij the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect (arrestee) committed an offence referred to in Schedule 1; and (iv) the suspicion must rest on reasonable grounds.

34. The first appellant, in an endeavour to justify the arrest of the respondent without a warrant, adduced the evidence of the arresting officer, Cimani. The upshot of Cimani's evidence has seen set out before in summary it amounts to this:

(a) She received a report that the respondent had stolen the laptop belonging to Gwendoline;

(b) Obtained a statement from the complainant and her witnesses in which the respondent was implicated by the admission allegedly made by him of stealing the laptop; and

(c) She opened a criminal case number with a docket; and

(d) Arrested the respondent.

35. Section 40(1)(b) requires the arresting officer to harbour a reasonable suspicion that an offence had been committed. The arresting officer need not be satisfied that the evidence proves beyond reasonable doubt that the offence had been committed. In Duncan[6]- suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. I suspect, but cannot prove. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. An arresting officer is required to assess the information at his or her disposal and decide whether it is sufficient to ground a reasonable suspicion. Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at page 658 D.

36. I have no hesitation in accepting that based on the information at her disposal at the time of the respondent's arrest, the arresting officer had the required reasonable suspicion. She first refused to arrest the respondent when there was no statement under oath implicating the respondent. She wanted to know the circumstances under which the laptop was allegedly stolen, and the reason why the respondent was suspected. In my view Cimani did what a reasonable police officer would have done and that meets the requirement under section 40(1)(b) of the Act.

37. In her testimony, Cimani stated that further investigations in the matter had to be conducted by the detectives and this would include obtaining other statements of the witnesses mentioned by the complainant in her statement. Section 50 of the Act allows the police

to lawfully detain an arrested person for a period not exceeding 48hrs before bringing him before a Court or releasing him, hence an arrest made under section 40(1)(b) of the Act is not unlawful where the arrestor entertained the required reasonable suspicion, but intends to make further inquiries after the arrest before finally deciding whether to proceed with a prosecution.

38. Having found that the arrest of the respondent was based on reasonable suspicion, that must conclude the inquiry on whether the

jurisdictional facts for an arrest in terms of section 40(1)(b) were satisfied. In Minister of Safety & Security v Sekhoto[7] , it was observed:

"if the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie, he may arrest the suspect. In other words, he then has a discretion as to whether or not to exercise that power (cf Ho/gate-Mohammed v Duke (198411 All ER 1054 (HL) at 1057) ... But the grounds on which the exercise of such a discretion can be questioned are narrowly circumscribed. Whether every improper application of a discretion conferred by the subsection will render an arrest unlawful, need not be considered because it does not arise in this case."

The arresting officer must exercise a discretion and in this case, Cimani decided to arrest the respondent. In the pleadings no attack is directed at the exercise of this discretion. No improper motive or conduct unbecoming, has been insinuated upon Cimani. The arresting officer exercised her discretion.

DISCRETION

39. Mr Petersen, counsel for the appellants relying on the lmprefed (Pty) Ltd v National Transport Commission[8] argued that the exercise of discretion by Sergeant Cimani, was not and is not challenged in the particulars of claim. The contention of Mr Petersen is that the whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action, the issue upon which reliance is to be placed. I agree with this submission. The particulars of claim contain no averments which challenges the discretion exercised by Cimani. The respondent limited his attacks on the arrest to a lack of reasonable suspicion on the part of the arresting police officer. This argument has no merit.

40. In Sekhoto,[9] it was inter a/ia held that:

''A party who alleges that a constitutional right has been infringed bears the onus. The general rule is also that a party who attacks the exercise of discretion, where the jurisdictional facts are present, bears the onus of proof. This is the position whether or not the right to freedom is compromised.

The case can be disposed of on a simple basis, namely, that the proper exercise of Van der Watt's discretion was never an issue between the parties. The plaintiffs, who had to raise it either in their summons or in a replication, failed to do so. The issue was also not ventilated during the hearing. This means that, since the magistrate had found that the four jurisdictional facts required for a defence under s 40(1)(b) were established by the appellant - a finding upheld by the court below - their claims had to be dismissed."

41. The respondent never asked for an opportunity to apply for bail. As demonstrated, Cimani's discretion to detain the respondent was not challenged. As already indicated, the respondent failed to plead that. The oral submissions by the respondent's counsel regarding exercise of discretion is unconvincing.

FURTHER DETENTION

42. In the particulars of claim, the respondent set out his case regarding his further detention, as follows.

"Plaintiff's subsequent detention and incarceration from the 15 September 2016 to 23 September 2016 was further wrongful, unlawful and completely unjustified, in that, inter alia :

14.1 the investigating officer opposed Plaintiff's release from

custody, whereas he had no reasonable and probable cause to do so;

14.2 the investigating officer failed in his duty towards the Plaintiff to properly investigate the alleged crime and to bring to the attention of the prosecutor and the magistrate at the bail hearing, information which was relevant to the exercise by the magistrate of his discretion;

14.3 the prosecutor/s, who had control over the relevant police docket, before the Plaintiff's first court appearance and subsequent court appearances, failed in his/her/their duty to acquaint himself/herself/themselves properly with the contents of the relevant

police investigation docket, from which it would have been obvious that there were no reasonable grounds or justification for Plaintiff's continued detention."

43. In relation to the claim for further detention as set out above, the Magistrate made the following findings:

"The arresting officer has sixteen years of experience as a police officer. She must be aware of the consequences of an unlawful arrest of the plaintiff. She also conceded during cross-examination that the plaintiff was arrested only on hearsay evidence. She foresaw that there would be several remands in court since at the time of the arrest she only had hearsay statements in the docket. She knew that further statements were required before the docket could go to court. This is confirmed by the evidence of Colonel Burger an officer of 36 years of experience. This is supported by his response that she thought the detective would obtain the statement of the complainant's boyfriend. She foresaw that the plaintiff being arrested on a Thursday would result in a delay in his release from detention."

44. I have already found that the Magistrate erred in concluding that the arresting officer acted on hearsay evidence, and approached

the evidence of Colonel Burger selectively. The record demonstrates that the police never opposed bail. Instead it is the respondent who gave false information to the police, which resulted in delay of his bail hearing. He was assisted in this regard by the police who approached his cousin, Maurisha.

45. There was no factual causation between the actions of the police and the further detention of the respondent. Reference is made to De Klerk v Minister of Police[10] where Theron J stated as follows:

"The crucial fact in this matter is that Constable Ndala subjectively foresaw the harm arising from the mechanical remand of the applicant after his first court appearance. She knew that the applicant's further detention after his court appearance would be the consequence of her unlawful arrest of him. She reconciled herself with this knowledge in proceeding to arrest him. In addition, she knew that her mere note inside the docket recommending bail would amount to nothing at this first appearance. That the judicial process should have had a different tenor and outcome seems to me to be beside the point. The point is that Constable Ndala knew it would not."

46. It is well to remember that the Magistrate had dismissed the action against the National Director of Public Prosecution (second

appellant). There was no cross-appeal against that judgment. It seems that the police from 19 September 2016, had no active role in the decisions made by the court at the instance of the prosecutor resulting in the respondent's further detention. In Minister of Safety & Security v Tyokwana[11] it was also held that the power to detain the suspect pending trial, is in the discretion of the court unless, the police officer or prosecutor influences the court to improperly exercise the discretion and detain the suspect further. On 19 September 2016, bail was opposed by the prosecutor on her own initiative because there was an issue about previous convictions and profiling. Section 50(6) allows the prosecutors to ask for postponement where they need further information relevant to bail proceedings.

47. I conclude that the police were not the cause for the further detention of the respondent. The respondent to a great extent, had

been the author of his own misfortunes. The claim based on the alleged unlawfulness of further detention, cannot be sustained.

The costs order consequent to the dismissal of the claim against the second appellant

48. The Magistrate dismissed the claim against the second appellant and made no order about the costs of the second appellant. No reasons in the main judgment had been set out for that conclusion. The second appellant requested reasons and the request is couched as

follows:

"(b) her reasons for not awarding to Second Defendant costs even though Second Defendant successfully defended her claim against Plaintiff."

49. In response, the Magistrate simply states that the court has discretion as to the appropriate order of costs and that the court considers the following facts:

"The plaintiff's right to liberty, dignity, privacy and human rights has been contravened.

His constitutional rights have been breached and he was entitled to institute these claims.

He was exercising his constitutional rights.

The plaintiff was substantially successful in his claim of unlawful arrest and detention."

50. None of these reasons applied to the facts of the case by the magistrate. The second appellant did not infringe any of the rights

of the respondent, hence the dismissal of his claim against the second appellant. The second appellant had asked for costs and was entitled to a decision. The magistrate was bound to consider the submissions made by the parties in this regard. She ignored the submissions made to her. Whilst I accept that costs are discretional, Magistrate did not exercise her discretion properly.

51. I am not persuaded by the argument that the Biowatch principle is applicable in this matter. The respondent was not an honest witness. His litigation for alleged unlawful arrest was inspired by the withdrawal of the criminal case against him rather than the infringement of his rights. Recently, Courts are undated with claims based on alleged unlawful arrest ensuing once there has been a withdrawal of criminal cases. The litigation is done without proper investigation of the merits of such alleged unlawful arrest. It cannot be suggested that the respondent's case was a bona fide vindication of his rights. The Magistrate in these circumstances, ought to have ordered the respondent to pay the second appellant's costs. The Court of appeal is entitled to interfere with her exercise

of discretion. I reject the submission that the second appellant was represented by the same legal representative of the first appellant. Each Department, as Mr Peterson submitted is responsible for the costs of its litigation. The appeal on costs by the second appellant must also succeed as well.

CONCLUSION

52. For the reasons set out above, the appeal must succeed in all its aspects including the appeal of the second appellant. The police

had discharged their constitutional responsibilities. Where hard working police officials have adhered to the prescripts of the law, they must not be discouraged by unwarranted criticisms, such as those directed at Sergeant Cimani. There is no basis to depart from the general rule that costs should follow the results. This Court must, however, comment on a conduct of the parties in this appeal, which have a direct bearing on the costs. In so doing, the comments previously made by the Courts on similar conduct become apposite.

53. In the matter of Van Der Westhuizen v United Democratic Front 1989 (2) SA 242 (A) at 252 B-G, this observation was made "that there is a growing tendency in court for counsel to incorporate quotations

from the evidence, from the courts a quo judgments and from the authorities on which they rely in their heads of argument. I have no doubt that these quotations are intended for the convenience of the court, but they seldom serve that purpose and usually only add to the court's burden. What is more important, is the effect which this practice has on the costs in civil cases. Although counsel himself is not allowed for a separate fee for the preparation of heads of argument his instructing attorney and his opponents' instructing attorney are both entitled to fees in respect thereof and their fees are directly related to the length of the heads. Superfluous matter should therefore be omitted and, although all quotations can obviously not be eliminated, they should be kept within reasonable bounds. Counsel will be well advised to bear in mind that Rule 8 of the rules of this court requires no more than main heads of argument." This is what had obtained in this appeal.

54. The appellants' heads of argument run up to 89 pages. The respondent's heads are 55 pages long. These heads contain extensive quotations and moreover, the typing on some pages do not cover the full page. With a view of engaging with the parties, we issued a directive prior to the hearing on 22 January 2021 for the appeal wherein we requested the parties to make submissions as to whether the legal representatives are entitled to all or any of the costs associated with both sets of head of argument, in view of the prolixity thereof.

55. Both counsel, at the hearing, contended that they found the quotations necessary and they were for all intents and purposes for the benefit of the court. Whilst we accept that the authorities that they referred to were mostly helpful, the length of the heads was unjustified on a matter that the jurisprudence is quite trite. I still find the conduct unacceptable. This Court will mark its displeasure by an appropriate order as to the costs of preparing the heads of argument

56. In the result the following order is made:

1. The appeal is upheld with costs, such costs to include the cost of counsel.

2. The order of the Regional Court Magistrate of 1O December 2019 is set aside and substituted with the following:

"The plaintiff's claims are dismissed with costs and such costs to include the costs of counsel on the applicable Magistrates' Court scale."

3. Neither of the legal representatives may recover more than 25% of counsel's normal fees for the preparation of heads of argument.

M NOTYESI

ACTING JUDGE OF THE HIGH COURT

I agree,

E REVELAS

JUDGE OF THE HIGH COURT

Appearance

Council for the Appellants

F Petersen

Instructed by

LULAMA INC ATTORNEYS

High Street

Grahamstown

Council for the respondent

A M DU TOIT

DULLABH ATTORNEYS

5 Bertham Road

Date heard

22 January 2021

Judgment delivered

16 February 2021

[1] 1 Mtola v Minister of Police {2017] ZAECMHC 56 (Mtola)

[2] Matola v Minister of Police Case No.CA23/16, judgement of the Full Court of Eastern Cape by Smith J

[3] 2011 (1) SACR 469 SCA at

[4] 2011 (1) SACR 315 at page 315 at 320.

[5] Duncan v Minister of Law and Order 1986 (2) SA 805 (A).

[6] Duncan supra

[7] 2011 (1) SACR 315 at page 327, para 29

[8] 1993 (3) SA 94 (A) at 107C-E

[9] Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 at 333 para 49.

[10] 2019 (12) BCLR 1421 CC

[11] 2015 (1) SACR 597 (SCA) at paras 39 to 44