REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

							         CASE NO:  A3048/2019

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

NOMSA MOKWENA  					          	            Appellant

and

JOHANNESBURG METROPOLITAN MUNICIPLAITY	   1st Respondent
MINISTER OF POLICE						  2nd Respondent

J U D G M E N T

CORAM:  MABESELE J AND NOKO AJ

NOKO, AJ:

Introduction
[1]	This appeal lies against the judgment and order of the additional magistrate of the Magistrate’s Court for the district of Johannesburg Central, Johannesburg. The magistrate dismissed claim for unlawful arrest and detention instituted by the appellant against the 1st and 2nd respondents.  The magistrate was of the view that the arrest of the appellant was within the ambit of section 40(1) (a) of the Criminal Procedure Act and therefore lawful and further that the detention was also within the ambits of the law.
 
Background 
[2]	The facts common to both parties are that the appellant was arrested without a warrant by Mawande Baleni (Baleni) in Thembelihle informal settlement on 25 February 2015. That Baleni was in the employ of the first respondent and was acting within the course and scope of his employment. Subsequent to the arrest the appellant was detained and transported to the Lenasia police station by the employees of the second respondent. She was detained and brought to the magistrate court, Lenasia and was granted bail of R1000.00.

Before Court a quo
[3]	Baleni testified that he was directed to proceed to Thembelihle informal settlement where there was public violence taking place. Together with other members of the first respondent he proceeded to the scene where there was commotion and members of the public were throwing stones at passing motor vehicles, tyres were burning and rocks were being placed on the road. Whilst Baleni was awaiting instructions from the superiors he identified the appellant placing rocks on the road. Baleni did not act immediately and when the instructions were issued by his superior to arrest those committing crime he proceeded to arrest the appellant whom he identified with her purple top and the jean. He then took the appellant and placed her in a police motor vehicle together with other people who were arrested on that scene. The appellant and others were later transported to the police station by the members of the second respondent where they were later charged. Baleni testified that he arrested the appellant for placing rocks on the road thereby obstruct the flow of traffic.

[4]	The appellant on the other hand testified that she was on her way to visit her friend at Baragwanath Hospital when she came across people running in her direction. She noted that they were being chased by members of the first respondent and she then ran into a neighbouring yard where she was subsequently arrested.  Contrary to this version she again said that in fact she was participating in a peaceful protest at the time when she was arrested. She was then put in a van together with other male suspects and was later transported to the police station. 

On Appeal
[5]	The appellant submitted that the magistrate erred in finding that Baleni exercised his discretion in deciding to arrest the appellant and instead he was carrying the instructions given to him by his superior to arrest the appellant. In addition, it was submitted that the detention was unlawful as the appellant was transported and kept at the police cell unaccompanied by Baleni who was the person who knew the basis of her detention. In view of the fact that Baleni was not there with appellant at the time when she reached police station, so the argument went, no one knew why the appellant was detained and the appellant did not also know the basis of her arrest and the detention was therefore unlawful. 

[6]	The respondents on the other hand submitted that the arrest was within the ambit of section 40(1)(a) of the Criminal Procedure Act (CPA) and therefore lawful and further that the detention was also within the ambits of the law, as correctly found by the magistrate.

Legal arguments 
[7]	The appellant’s counsel argued that respondents failed to satisfy the jurisdictional requirement envisaged in section 40(1)(a) of the Act which requires that the arrestor should have had suspicion that an offence is being committed. The counsel further submitted that Baleni arrested the appellant in pursuance of the instructions from Baleni’s superiors and therefore did not make a personal decision which should form the basis of the arrest. Counsel argued that the act of placing rocks on the road cannot ipso facto constitute an offence of public violence and to this end reference was made to the case of S v Mei [1982] 1 ALL SA 117 (O) (“Mei”) where the court decided that the act of placing rocks on the road cannot in itself be construed as an offence of public violence, more so as the act of placing the stone is not in itself violent.

[8]	Counsel for the first respondent argued that the arresting officer did see the appellant placing rocks on the road, an act which constitutes an offence. Baleni identified her through her clothing and shoes and on receipt of instructions to arrest those committing crimes from the, he proceeded to arrest her.  Baleni testified further that at any rate he was still going to arrest the appellant as soon as the situation became calm.  To this end, so argued the first respondent’s counsel, the magistrate did not find the evidence of the arresting officer wanting. At the end the first respondent’s counsel argued that the appeal should be dismissed with costs.

[9]	The counsel for the first respondent further argued that the evidence presented by Baleni was found to be reliable by the court a quo and further that such evidence would have been sufficient to lead to the dismissal of the claim.  In this case the court had the opportunity to listen to the evidence of the appellant and the court was appalled by her version. The court found that the appellant was unreliable and her evidence was riddled with contradictions. The appellant’s testimony was that she was on her way to visit her sick friend at Baragwanath Hospital when she came across people being chased by the metro police and was forced to take cover and ran into the yard close by where she was ultimately arrested. The other version which was brought up by the respondent during cross examination was to the effect that she was arrested during a peaceful march. 

[10]	The counsel for the first respondent further argued that the argument by the appellant’s counsel which broke the camel’s back was that in any event there is nothing wrong in just placing a rock on the road. Counsel for the first respondent during his argument referred to the doctrine of common purpose between the appellant and the rest of the people who were marching. Counsel for the second respondent argued that the Mei case should not be followed as the circumstances were different, further that it was a criminal case and lastly that it was a decision made before the dawn of the new constitutional dispensation.

[11]	On the basis of the aforegoing so argued the first respondent’s counsel the magistrate correctly dismissed the claim against the respondents.  

[12]	The second respondent re-stated the jurisdictional requirements for the arrest in terms of section 40(1)(a) of the CPA, that the arresting officer should be a peace officer, who should have entertained a suspicion that the said accused has committed or attempted to commit an offence referred to in schedule 1 and further that the suspicion must be based on reasonable grounds. In this regard the counsel relied on the judgment of Duncan v Minister of Law and Order 1986 (2) SA 605 (A) at 818. The counsel argued that all these requirements were proved through the evidence tendered by the respondents’ witnesses and the magistrate cannot be faulted in this regard. Of importance is the fact that the arresting officer confirmed that he saw the appellant committing an offence and he exercised his discretion in arresting though the arrest was effected subsequent to the instructions from Baleni’s superior.

[13]	The respondents’ counsel also argued that the magistrate was correct in coming to the conclusion that the detention was also above board. The fact that the warning statement and the reading of the rights was done later is of no moment. As will be stated below there is an obligation that once arrested the suspect must be taken to the police station within a reasonable time.

Discussion 

[14]	The judgment in the Mei case referred to by the appellant’s counsel is correctly distinguishable as argued on behalf of the second respondent. In any event the learned Judge in that case did confirm placing of rocks may be construed as an offence provided the state can demonstrate that there was common purpose with people involved in the public violence. In casu it is apparent that there was a public outcry on service delivery which is often charecterised by violence and frequently characterised by other acts of criminality. The uncontroverted evidence of the respondents confirm that there were throwing of stones, burning of tyres and pelting of vehicle with stones. The appellant cannot be heard to argue that she was not furthering the objects of the community members who were marching to relay their dissatisfaction with service delivery.

[15]	The argument advanced by the appellant’s counsel that the Baleni acted on the instructions and not based on his discretion should also fail as evidence tendered indicated that the arresting officer saw and clearly identified the appellant before he arrested her. There is no shred of evidence pointing to the possibility that the instructions specified to Baleni that he proceed and specifically arrest the appellant.  Moreover Baleni testified that he was in fact going to arrest the appellant as soon as the situation became calm, regardless instructions from his superior.

[16]	The appellant argued that the mere fact that Baleni did not accompany the appellant to the police station ipso facto renders the detention unlawful. This argument must suffer the same fate and is found wanting on the basis that the appellant was transported by members of SAPS who were at the scene of the crime and therefore new the basis of the arrest. Section 50(1)(a) of the Criminal Procedure Act provides that “any person who is arrested with or without a warrant for allegedly committing an offence, or for any reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.” (underlining added). Baleni clearly explained that they were still in the process of following other matters on the scene. Such a detention will be unlawful if the accused person is not brought to court within a period of 48 hours as envisaged in the Act.

[17]	Though having been raised mero motu by the court the detention after the appearance in court if unlawful the claim in relation thereto would lie at the door step of the Justice department. This was informed by the fact that the appellant appeared in court on a Monday, though bail was set at R1000.00 she could not be released since the clerk responsible for bail payment was not at work at that time. The fact that Justice department would be liable was confirmed in De Klerk v Minister of Police (329/17) [2018] ZASCA 25 (28 March 2018) at par 14 where it was stated that [I]t is imperative for a presiding officer to inquire from the prosecution why it is necessary to further detain a suspect … [F]ailure to enquire at the time of first appearance of the reasons for further detention is clearly a contravention of the above constitutional imperatives and therefore the further detention of a suspect without just cause would be arbitrary and unlawful… the justice department would be responsible and liable for the further detention because of its failure to observe the constitutional rights of a detained person.” 

Conclusion
[18]	It therefore follows that the arguments advanced by the appellant cannot sustain the appeal and appeal against the finding on the lawfulness of both arrest and detention.

Costs 
[19]	The court mero motu raised the issue of possible costs order de bonis pripriis and asked curiously as to why the appellant through her attorney approached court with dirty hands as she presented clear contradictory statements to the attorneys. This was based on the findings from the magistrate but the appellant nevertheless proceeded to court to argue for compensation for R200 000.00. The legal representatives whilst alive to the contradictory statements of the appellant failed to discharge their ethical obligations as officers of the court and state mero motu the fact that there are two inconsistent versions and explain the inconsistency if it was possible. It is aggravating that the truth came to light only when the appellant was shown her statement prepared by her attorneys during cross examination by the respondents’ legal representatives. There was therefore no intention of the appellant or appellant’s attorneys to be open with the court. Worse off the fact the appellant’s legal representatives decided to approach court and argue the appeal and fail to declare a disclaimer that they are not tainted by the contradictory versions stated and explain same away for the court. Instead, the legal representatives argued that the appellant must not even be ordered to pay legal costs.

[20]	The respondents jumped on the bandwagon to argue that the appellant’s legal representatives should be mulcted with legal costs order personally for not conducting themselves as officers of the court.

[21]	Principles relative to costs against legal representatives personally was outlined in the SCA judgment of Adendorff’s Boerderye v Shabalala & Others (997/150 [2017] ZASCA 37 (29 March 2017) (“SCA”), at par 46 where the court stated that “…attorneys and counsel are expected to pursue their client’s rights and interests fearlessly and vigorously without undue regard for their personal convenience. In that context they ought not to be intimidated either by the opponent or even, I may add, by the court. Legal practitioners must present their case fearlessly and vigorously, but always within the context of set ethical rules that pertain to them, and which are aimed at preventing practitioners from becoming parties to deception of the court. It is in this context that society and the courts and the professions demand absolute integrity and scrupulous honesty of each practitioner…”

[22]	The SCA stated further that “[S]uch an order is reserved for conduct which substantially and materially deviates from the standard expected of the legal practitioner, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the court feels compelled to mark its profound displeasure at the conduct of an attorney in any particular context. Examples are, dishonesty, obstruction of the interest of justice, irresponsible and gross negligent conduct, litigating in a reckless manner, misleading the court and gross incompetence and a lack of care.”

[23]	The appellant’s counsel argued, inter alia, that the order for costs personally against the legal representatives would not be appropriate in this instance as they (as legal representatives) were not given prior notice and besides there is no evidence of malice on their part in advancing the case on behalf of the appellant.

[24]	The court was however not persuaded that there was malice on the part of the appellant’s legal representatives to warrant adverse costs order.

[25]	The appellant’s counsel argued that the constitutional court in Biowatch Trust v Registrar Genetics Resources 2009 (6) 232 CC (Biowatch Trust case) has decided that in instances where disputants approach the court to vindicate their rights such disputants should not be visited with adverse order of costs. The respondents argued that the constitutional court judgment in Biowatch Trust is distinguishable and there are exceptions outlined in that judgment where it was indicated that the disputants would not be ordered to pay costs if the claim was not frivolous and or vexatious. In this case such an order would not be warranted. 

[26]	The Biowatch Trust judgment cannot however be construed as a panacea which is cast in stone for all legal costs disputes where litigants seek to exert their constitutional rights. The constitutional court stated in Fergusson and Others v Rhodes University [2017] ZACC 39 (“Fergusson”) at par 19 that “the Biowatch principle also permits exception and does not go so far as to immunise all constitutional court litigation from risk of an adverse costs order.”  

[27]	Learned judge in Fergusson case also referred to Affordable Medicines Trust v Minister of Health[2006] 3 SA 247 (CC) where it was said that [T]here may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the part of the litigant that deserve censure by the court which may influence the court to order an unsuccessful litigants to pay.” It is clear that the pursued of the litigation by the appellant is laced with malice and is found to be frivolous and vexatious. The appellant cannot therefore be insulated from an adverse costs order on the basis of Biowatch Trust judgment.

[28]	Noting the issue of costs is within the preserve of the trial court and the appeal court would interfere where warranted there is no indication that the discretion was exercised capriciously and therefore refuse to interfere therewith.
[29]	In the result, the following order is made:

a)	The appeal is dismissed with costs.

				________________________________________
						      M V NOKO
					   ACTING JUDGE OF THE HIGH COURT
				GAUTENG LOCAL DIVISION, JOHANNESBURG

I agree

				________________________________________
					             M   MABESELE
					   JUDGE OF THE HIGH COURT
				GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEARANCES

FOR THE APPELLANT:  ADV 

INSTRUCTED BY: SERI LAW CLINIC

FOR THE FIRST RESPONDENT:  ADV VILJOEN

INSTRUCTED BY: MOLEFE KNIGHT ATTORNEYS

FOR THE SECOND RESPONDENT: ADV

INSTRUCTED BY: STATE ATTORNEY

DATE OF HEARING: 9 SEPTEMBER 2019

DATE OF JUDGMENT: 11 November 2019