THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:  788/11
Reportable
In the matter between:

MINISTER OF SAFETY AND SECURITY

FIRST APPELLANT
MINISTER OF JUSTICE AND CONSTITUTIONAL          SECOND APPELLANT
DEVELOPMENT

and

NEVER NDLOVU

RESPONDENT

Neutral citation:
Minister of Safety & Security v N Ndlovu (788/11) [2012]
ZASCA 189 (30 November 2012).

Coram:

Ponnan, Bosielo and Petse JJA
Heard:

7 November 2012
Delivered:

30 November 2012

Summary:
Claim for damages for unlawful detention following upon
unlawful arrest ─ unlawfulness not ceasing when accused is brought
before a reception court which remands him in custody without enquiring
whether it is in the interests of justice to detain him further.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:   Eastern Cape High Court, Grahamstown (Mageza AJ sitting
as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel to
be paid jointly and severally by the appellants, the one paying the other to be
absolved.
The following order is substituted for the order of the court below:
„(1)
Judgment is entered in favour of the plaintiff:

(a)
against the first defendant for:

(i)
payment of the sum of R55 000;

(ii)
interest at the prescribed legal rate a tempore morae;

(iii)
costs.

(b)
against the first and second defendants jointly and severally, the

one paying the other to be absolved, for:

(i)
payment of the sum of R175 000;

(ii)
interest at the prescribed legal rate a tempore morae;

(iii)
costs.‟
________________________________________________________________

JUDGMENT
________________________________________________________________

PETSE JA (Ponnan and Bosielo JJA concurring):

[1] This appeal concerns the issue whether or not the further detention of the
respondent, Mr Never Ndlovu, for the period from 24 October to 31 October 2008
to await his trial on a charge of possession of suspected stolen property was
unlawful. The Eastern Cape High Court, Grahamstown (Mageza AJ) held that it
was and accordingly awarded the respondent damages. It subsequently granted

the appellants leave to appeal against its judgment and order to this court. I shall
say more about the terms of the order later.

[2] The determination of the issue arising in this appeal will best be
understood against the backdrop of the facts that follow.

[3] On 21 October 2008, late in the afternoon, the respondent, a Zimbabwean
national, received a telephone call from an acquaintance known as Golden,
requesting him to meet the latter in the street in Joza Township, Grahamstown,
where the respondent lived at the time. Golden also requested the respondent to
bring with him a laptop that he had earlier that day handed to the respondent for
the purposes of the latter to install a Windows Software Program.

[4] The respondent obliged, but unbeknown to him Golden was accompanied
by eight police officers, under the command of Warrant Officer Van Ross, who
were investigating a case concerning the theft of the laptop in question from the
premises of Westbank in Grahamstown. The police officers, after a brief
questioning of the respondent, seized the laptop and asked the respondent to
lead them to his residence, which he did. There, four police officers conducted a
search of the premises without a search warrant. They seized an assortment of
the respondent‟s property comprising, inter alia, computers, a television set, Tech
DVD player, a LG flatron screen and miscellaneous computer accessories.

[5] The respondent was arrested and detained for being in possession of
what the police said was suspected stolen property in contravention of s 36 of the
General Law Amendment Act 62 of 1955. On 23 October 2008 he was brought
before a so-called „reception court‟ ─ about which more shall be said later ─ and
remanded in custody to 30 October 2008 because a so-called „Bail Information
Form‟, completed by the police and contained in the police docket, reflected that
the respondent had furnished a false address and consequently had no fixed
address. For this reason, according to the police, the respondent was not to be

released on bail. On 30 October 2008, the respondent was granted bail of R500
which was paid on his behalf the following day. His case was postponed yet
again. On 9 December 2008 charges against the respondent were withdrawn
and on 10 December 2008 his property, seized by the police, on the date of
arrest, was released to him.

[6] On 21 April 2010 the respondent instituted proceedings against the
appellants, the Minister of Safety and Security, as the first defendant and the
Minister for Justice and Constitutional Development, as the second defendant in
the high court for unlawful arrest and detention from 21 to 31 October 2008.

[7] The matter proceeded to trial before Mageza AJ. During the appellants‟
case it was conceded on behalf of the first appellant that the arrest of the
respondent on 21 October 2008 and his subsequent detention until 23 October
2008, when he was brought before the „reception court‟, were unlawful. But the
appellants persisted in their defence that the respondent‟s unlawful detention
ceased when the magistrate in the „reception court‟ remanded the respondent in
custody to 30 October 2008 for a bail application and legal aid. This appeal is
thus only concerned with the lawfulness of his further detention from 24 to
31 October 2008. The case of the appellants was that from the time the
magistrate issued the detention order the unlawful detention ceased.

[8] The high court found in favour of the respondent and granted judgment as
follows:
„1.
Judgment is entered in favour of Plaintiff:
(a)
in respect of the unlawful arrest, attendant contumelia and detention between the
evening of the 21st to the morning of the 23rd October 2008, damages in the amount of
R55 000.00.
(b)
in respect of the unlawful detention in prison between the 24th October to
31st October 2008 for the sum of R175 000.00.

(c)
The defendants are ordered, jointly and severally, to pay interest on the damages
awarded in (a) and (b) above at the legal rate from a date fourteen days after date of this
judgment to date of final payment.
(d)
Costs of suit together with interest calculated at the legal rate from a date
fourteen days after the allocator to the date of payment.‟

[9] On the pleadings, the arrest and subsequent detention of the respondent
were common cause. It was also not in dispute that the respondent was arrested
at Extension 4, Grahamstown where he was found in possession of the goods
seized by the police on suspicion that they had been stolen. At a subsequent pre-
trial conference, held on 7 April 2011 in terms of rule 37(1) of the Uniform Rules,
the appellants correctly accepted that they bore the onus to establish that the
respondent‟s arrest and detention were legally justified (see Minister of Law &
Order & others v Hurley & another 1986 (3) SA 568 (A).

[10] In Zealand v Minister for Justice and Constitutional Development &
another 2008 (6) BCLR 601 (CC) the Constitutional Court in affirming this
principle said:
„It has long been firmly established in our common-law that every interference with
physical liberty is prima facie unlawful. Thus, once the claimant establishes that an
interference has occurred, the burden falls upon the person causing that interference to
establish a ground of justification.
. . .
There can be no doubt that this reasoning applies with equal, if not greater, force under
the Constitution.‟1

[11] Of the witnesses who testified at the trial only the evidence of Captain
Green, who was, at the material time, the Sector Commander of the Detective
Branch, Grahamstown and Mr Lionel Prince, the prosecutor who appeared for
the State in the „reception court‟ on 23 October 2008, is material. Captain Green
testified that, as Sector Commander, he had eighteen investigating officers under

1 At para 25.

him. When he received police dockets he would peruse them and allocate them
to designated investigating officers. When he received the docket relating to the
respondent, he observed that it contained no identity or passport number and
that a visit by an officer to the address furnished by the respondent had
established that the respondent was unknown and that this triggered what he
called „red lights‟ because the respondent was a Zimbabwean national.
Contained in the docket was a document titled „Bail Information Form‟, which had
been completed by Constable Buthi. This „Bail Information Form‟ was intended to
assist the prosecutor at the respondent‟s first appearance at court. The
prosecutor was expected to evaluate the information contained in that form and
then decide whether to consent or object to bail. The form recorded that the
appellant be refused bail because he was considered a flight risk.

[12] Prince testified that he did not study the docket but merely perused the
„Bail Information Form‟. He said it was the responsibility of the control prosecutor,
Ms Msesiwe, to study the docket, draw a charge-sheet and thereafter give it to
the prosecutor in the „reception court‟. He, upon receiving the docket, only read
the „Bail Information Form‟ and realised that bail was to be opposed. He then
called the respondent‟s case before a magistrate in the „reception court‟ and
applied for the case to be remanded. All of this he did without reference to the
respondent. Without further ado the magistrate postponed the case for seven
days.

[13] It is opportune to say something about the so-called „reception court‟,
which has since ceased to exist. This is a „court‟ which at that time was solely
dedicated to dealing with accused persons at their first appearance in court. All
cases before it were postponed as a matter of course and as a rule it never
entertained any bail applications. Neither did it embark on a judicial evaluation to
determine whether it was in the interests of justice to grant bail nor, in this case,
did it afford the respondent an opportunity to address it on the question of his
eligibility to be released on bail.

[14] Msesiwe, who was said to have perused the docket to make a
determination as to whether the respondent should be released (whether on bail
or warning) or detained further, did not testify. Nor did Constable Buthi. The
evidence does reveal that the arresting officers had been to the respondent‟s
residence where they conducted a search and seized some of the respondent‟s
goods at the time of his arrest. Accordingly there could have been no doubt
about the respondent‟s residential address. It is thus inexplicable why Buthi
would have suggested that the respondent had no fixed abode and as a
consequence that he posed a flight risk. Buthi was a crucial witness. Indeed that
seemed to have been accepted by Green when he testified.

[15] The case of the appellants thus suffers fundamentally from evidentiary
short-comings. First, Prince who applied for the postponement of the
respondent‟s case on 23 October 2008 did not, on a fair assessment of his
evidence, read the contents of the docket. He solely relied on the police entry in
the „Bail Information Form‟ that the respondent should not be granted bail.
Msesiwe, who was said to have read the docket was not called. Indeed Prince
conceded under cross-examination that anyone properly applying their mind to
the matter at hand would have realised that the respondent was not a flight risk.
Nor was Buthi called, who was said to be the source of the entry in the „Bail
Information Form‟ that the respondent had furnished a false address. The
inevitable consequence of these evidentiary short-comings is that the evidence of
the appellants, who bore the onus to justify the deprivation of the respondent‟s
liberty, came nowhere near discharging that onus. Quite clearly had the police
conscientiously performed their duties, given that the respondent‟s freedom was
at stake, they would have realised that the respondent had a fixed address and
was thus not a flight risk. Moreover the appellants‟ problems are also
compounded by the fact that the respondent was granted bail on his second
appearance before court even though his circumstances had not changed.

[16] In Minister of Law and Order v Kader 1991 (1) SA 41 (A) at 51A-C this
court held:
„. . . I consider, that when s 50(1) speaks of further detention for the purposes of trial
being ordered by the court “upon a charge of any offence”, this does not contemplate
that the matter would be ready for trial at the first appearance of the arrested person, or
that a properly formulated charge must then be preferred against him . . . All that the
section contemplates is that the purpose of the detention throughout must be to secure
the attendance of the accused at his trial upon the charge, which, it is expected, will be
preferred against him. It goes without saying that it is the function of the judicial officer to
guard against the accused being detained on insubstantial or improper grounds and, in
any event, to ensure that his detention is not unduly extended.‟ (My emphasis.)
In this case it is common cause that the „reception court‟ never embarked on any
judicial evaluation because, as a matter of course, its function was merely to
postpone cases and without, it would seem, enquiring whether or not an accused
person ought to be detained pending a trial. It can thus hardly be contended that
the unlawful detention of the respondent ceased when he was brought before the
„reception court‟ which ordered his further detention. It follows that this appeal
must fail.

[17] It remains to deal with one final aspect. It was common cause before us
that the order of the high court has to be corrected. Judgment was entered in
favour of the respondent for his unlawful:
(a) arrest and detention for the period 21 to 23 October 2008 in the sum of
R55 000; and
(b)  detention for the period 24 to 31 October 2008 in the sum of R175 000.
Although the order does not make it plain, in respect of (a), judgment could only
have been entered against the first appellant. That would also hold true in
respect of the interest and costs that flow from that award. And in respect of (b),
judgment, interest and costs ought to have been entered against the appellants
jointly and severally. It is thus necessary that the order be amended to reflect
that. To avoid further confusion it may simply be more convenient to set aside the
order in its entirety and replace it with the correct order. Save for correcting the

order, the appeal must otherwise be dismissed with costs including the costs of
two counsel, it being agreed between the parties that the employment of two
counsel was justified.

[18] The following order is made:
The appeal is dismissed with costs, including the costs of two counsel to
be paid jointly and severally by the appellants, the one paying the other to be
absolved.
The following order is substituted for the order of the court below:
„(1)
Judgment is entered in favour of the plaintiff:

(a)
against the first defendant for:

(i)
payment of the sum of R55 000;

(ii)
interest at the prescribed legal rate a tempore morae;

(iii)
costs.

(b)
against the first and second defendants jointly and severally, the

one paying the other to be absolved, for:

(i)
payment of the sum of R175 000;

(ii)
interest at the prescribed legal rate a tempore morae;

(iii)
costs.‟

_________________
X M PETSE
JUDGE OF APPEAL

Appearances:

Appellants:

M J Louw SC

N J Sandi

Instructed by:

Nkuhlu Khondo Incorporated, Grahamstown

The State Attorney, Bloemfontein

Respondent:

A Beyleveld SC

D Niekerk

Instructed by:

Whitesides, Grahamstown

Naudes Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 November 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Minister of Safety and Security & another v Never Ndlovu

Today the Supreme Court of Appeal (SCA) dismissed an appeal by the first and second
appellants with costs and upheld the order of the Eastern Cape High Court, Grahamstown,
in favour of the respondent.

The issue before the SCA was whether or not the further detention – from 24 October to
31 October 2008 - of the respondent, whilst awaiting his trial on a charge of possession of
suspected stolen property, was lawful.

The respondent, a Zimbabwean national, was requested by an acquaintance to meet him
and bring with him a laptop, handed to him earlier by said acquaintance. Unbeknown to
the respondent, the acquaintance arrived with eight police officers, who were investigating
a case of a stolen laptop. The laptop was then seized by the police officers and they then
asked the respondent to lead them to his residence, which he did. Upon arrival at the
residence, the police officers, without a warrant, conducted a search of the premises and
seized an assortment of the respondent’s property. The respondent was thereafter
detained and arrested for possession, of what the police officers construed, as stolen

property.

The respondent then appeared before a so-called ‘reception court’ on 23 October 2008
and was remanded in custody until 30 October 2008; as a so-called ‘Bail Information
Form’, completed by the police officer reflected that the respondent had furnished a false
address.

The respondent then instituted proceedings against the appellants for unlawful arrest and
detention. At the trial, it was conceded by the first appellant that the arrest and subsequent
detention of the respondent from 21 October 2008 until 23 October – when he appeared
before the reception court - was indeed unlawful, but the appellants persisted in their
defence that the respondent’s unlawful detention ceased when the magistrate in the
reception court remanded the respondent in custody until 30 October 2008. The high court
found in favour of the respondent.

On appeal, the SCA held that the reception court neglected to embark on a judicial
evaluation to ascertain whether or not it was in the interests of justice to grant the
respondent bail, nor did it afford the respondent an opportunity to address it on his
eligibility to be released on bail.

The SCA held further that the appellants failed to discharge the onus of justifying the
deprivation of the respondent’s liberty, and had the police officers conscientiously
performed their duties, they would have realised that the respondent did indeed have a
fixed address and was thus not a flight risk. Consequently the ostensible reason for the
respondent’s further detention had no factual basis.