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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no: 1037/18

In the matter between:

THE MINISTER OF POLICE
FIRST APPELLANT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
SECOND APPELLANT

and

RUVERN MULLER

RESPONDENT

Neutral citation:
The Minister of Police & another v Muller (1037/18) [2019] ZASCA
165 (29 November 2019)

Coram
Ponnan, Plasket and Mbatha JJA and Koen and Eksteen AJJA

Heard:
4 November 2019

Delivered:
29 November 2019

Summary:
Arrest for inability to account for possession of goods suspected
of being stolen – arrest wrongful and unlawful – remand in custody by Magistrate at
first appearance in court – whether police liable for further detention after remand.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Grahamstown (Revelas J
and Msizi AJ sitting as court of appeal):

1 The appeal succeeds in part.
2 The order of the court a quo is set aside and replaced with the following:
‘(a) The appeal against the decision of the magistrate in the respect of the arrest
and initial detention is dismissed.
(b) The magistrate’s order pertaining to interest is amended to read:
‘Interest is payable on the aforesaid amount at the prescribed rate of 9% from
the date of judgment to the date of payment.’
(c) The first appellant’s appeal against the decision of the magistrate in respect
of the further detention is upheld.
(d) The respondent is ordered to pay the first appellant’s costs of the appeal.’
______________________________________________________________

JUDGMENT
______________________________________________________________

Eksteen AJA (Ponnan, Plasket and Mbatha JJA and Koen AJA concurring):

[1] The respondent, Mr Ruvern Muller (Muller), sued the first appellant (the
Minister) for damages arising from his alleged unlawful arrest and ensuing detention
(initial detention), and the Minister and the second appellant (the NDPP), jointly and
severally, for damages arising from his further detention after his first appearance in
court (further detention). He was successful in the Magistrate’s Court, Port Elizabeth
and was awarded R50 000 for the arrest and initial detention and R150 000 for the
further detention. An appeal by the Minister and the NDPP to the High Court,
Grahamstown was dismissed. The appeal to this court is against the merits of Muller’s

claim and is with special leave. There is no appeal against the quantum of the award.
After the granting of special leave Muller abandoned his judgment against the NDPP
who has accordingly played no role in the appeal.

[2] In issue before us are:
(a) The lawfulness of the arrest which was effected without warrant, and the initial
detention; and,
(b) The Minister’s liability for damages flowing from the further detention which
occurred on the authority of a remand order by the magistrate.

[3] The saga commenced on 27 November 2013 when employees of the Minister
received information from the Crime Intelligence Gathering Unit that there was a South
African Police Service (SAPS) bulletproof vest (vest), which was suspected to have
been stolen, at 1 Akkerhof Flats, Sidwell, Port Elizabeth. This is the home of Muller,
who is a senior official in the Nelson Mandela Bay Metropolitan Fire Department.
Akkerhof is a residential complex notorious for its association with crime.

[4] Warrant officers Van Zyl and Van der Merwe, both members of the Port
Elizabeth Flying Squad, proceeded to Akkerhof to investigate. At the apartment they
met Muller’s son, Jason, and a young woman, Ms Baatjies. Van der Merwe identified
himself and enquired whether they knew of a stolen SAPS vest in the apartment. Jason
acknowledged that there was a vest on the veranda and he identified it to the police.
Both Jason and Baadjies declared that the vest had been brought to the apartment a
while before by one Jason Uithaler (Uithaler).

[5] At the trial Muller explained that Uithaler ‘sort of lived with (him)’. He went on to
say that ‘on many occasions he was out and not sleeping there or not available during
the day, but he stayed, lived with me. He used to come wash there and his clothing
and items were there.’ It is apparent from the evidence that Uithaler did not occupy a
room in the apartment but, when he stayed over he slept on the couch in the living
room.

[6] Muller arrived at the apartment shortly after the discovery of the vest and he
advised that he was the lessee of the apartment. When he was confronted with the

discovery of the vest in the apartment he confirmed that Uithaler had brought it there.
The vest was contained in a blue cover. The cover was opened and the vest removed.
The zip on the front of the vest was then opened which revealed police insignia and a
police serial number on the inside of the vest. It was clearly a SAPS issued vest and
Van Zyl suspected that it had been stolen.

[7] A subsequent search of the premises also revealed a marked police pepper
spray which Van der Merwe found in a drawer. Muller was arrested for being in
possession of the vest which Van Zyl suspected had been stolen. He, as the arresting
officer, disavowed any reliance on the pepper spray for his decision to arrest. His
explanation of the reason for the arrest made no reference to it. Nothing further need
be said of the pepper spray.

[8] In consequence of the arrest Muller was taken to the Algoa Park Police Station
where he was detained and a warning statement taken from him. Later that afternoon
Muller’s daughter traced Uithaler and brought him to the police station in the hope of
securing Muller’s release. Although Uithaler spoke to a police official, the content of
their conversation is not known and no statement was minuted from Uithaler. Much
later, however, on 13 December 2013 a statement was taken from Uithaler in which
he declared that the vest was his and that he had discovered it in a bin while scratching
through old motor parts. He denied that Muller was aware of the presence of the vest.

[9] The docket, containing statements from Van Zyl and Van der Merwe together
with Muller’s warning statement, was forwarded to the prosecutor the following
morning. In addition to the statements the docket contained a ‘bail information form
and address verification’ completed by one Constable Burton. He confirmed that he
had verified Muller’s address and recommended that he be released on bail of R500.
On receipt of the docket Ms Du Toit, the screen prosecutor, perused the docket before
the first court appearance and satisfied herself that a prima facie case existed against
Muller. During her evidence at the trial she alluded to the affidavit which had belatedly
been taken from Uithaler and which had not been in the docket when she received it.
She opined that the content of the affidavit would not have changed her view of the
merit of the charge. Du Toit, however, amended the bail proposal and instructed that
Muller may be released on warning. The court prosecutor assigned to deal with the

matter did not peruse the entire docket prior to the first hearing but observed the
instruction not to oppose the release of Muller on warning. She proceeded on this
basis.

[10] The magistrate, however, as she was bound to do, conducted an inquiry to
satisfy herself of the propriety of his release. She posed questions relating to Muller’s
previous convictions. When Muller indicated that he had a previous conviction for rape
she ruled that the matter should be referred to the bail court. The bail court was
however congested and was unable to hear an application on that day. She
accordingly remanded the matter to 2 December 2013. There was some debate in
argument before us as to the purpose of the remand. The form completed by the
magistrate, which forms an annexure to the charge sheet, records:
‘Accused warned ito Sec 60(11)(B)(a),(c) + (d) Act 51/77
Accused understands & states he has a pc for rape (20 years) suspended sent. imposed.
pp 2/12/2013 court 26 Bail R___’
Below this inscription the magistrate recorded the remand to be in custody and marked
the letters ‘FBA’ on the pro-forma document. The abbreviation ‘FBA’, we were advised
from the bar, refers to ‘Formal Bail Application’.

[11] On 2 December 2013 Muller made a formal bail application and was released
on bail of R300. The matter was remanded thereafter from time to time until ultimately
it was withdrawn.

Arrest and initial detention
[12] The plaintiff was arrested for an alleged contravention of s 36 of the General
Laws Amendment Act 62 of 1955 (the Act). He was advised accordingly and, as
recorded earlier, detained until his first appearance in court on 28 November 2013.

[13] Section 36 of the Act provides:
‘Failure to give a satisfactory account of possession of goods –
Any person who is found in possession of any goods, other than stock or produce as defined
in section one of the Stock Theft Act, 1959 (Act 57 of 1959), in regard to which there is
reasonable suspicion that they have been stolen and is unable to give a satisfactory account

of such possession, shall be guilty of an offence and liable on conviction to the penalties which
may be imposed on a conviction of theft.’

[14] It is trite that the Minister bears the onus to justify the arrest and initial
detention.1 In this regard the Minister pleaded:
‘5.1.2 The said offence was committed in a matter that entitles the arrest of the plaintiff without
a warrant of arrest in terms of s 40(1)(b) and in the alternative s 40(1)(e) of the Criminal
Procedure Act, 1977 in that:
(a) The arresting officer reasonably suspected the plaintiff of having committed an offence of
being in possession of suspected stolen property; and in the alternative
(b) The arresting officer found in possession of the plaintiff a South African Police bullet proof
vest and pepper spray2 which he reasonably suspects to be stolen property or property
dishonestly obtained, and whom the arresting officer reasonably suspects of having committed
an offence.
5.1.3 The plaintiff was arrested with the intention to bring him to justice.’

[15] The said provisions of the Criminal Procedure Act3 (CPA) provide:
‘1. A peace officer may without a warrant arrest any person –
. . .
(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from lawful custody;
. . .
. . .
(e) who is found in possession of anything which the peace officer reasonably suspects to be
stolen property or property dishonestly obtained, and whom the peace officer reasonably
suspects of having committed an offence with respect of such thing;
. . .’

[16] Irrespective of which subsection the Minister chooses to rely on, the arresting
officer is required to harbour a reasonable suspicion that an offence has been

1 Minister of Law and Order & others v Hurley & another 1986 (3) SA 568 (A) at 589 E-F; See also
Zealand v Minister of Justice and Constitutional Development & another [2008] ZACC 3; 2008 (4) SA
458 (CC).
2 Notwithstanding the plea, Van Zyl confirmed in evidence that he did not rely on the discovery of the
pepper spray or any suspicion in respect thereof for purposes of the arrest.
3 Act 51 of 1977.

committed. The offence which Van Zyl contemplated is a contravention of s 36 of the
Act. Section 36 of the Act requires that:
(a) the goods must be ‘found in possession’ of the suspect;
(b) there must be a reasonable suspicion that the goods have been stolen; and
(c) the suspect must be unable to give a satisfactory explanation of his possession.4

[17] The court a quo considered that it had not been established that Muller had
been ‘found in possession’ of the vest. The phrase ‘found in possession’ is contained
in numerous statutes which prohibit the possession of various objects or substances
and has formed the subject of much debate. By virtue of the conclusion to which I have
come it is not necessary to resolve this issue and I shall for purposes of this judgment,
assume, in favour of the Minister, that Muller was ‘found in possession’ of the vest.

[18] The second requirement to be established is that there was a reasonable
suspicion that the vest had been stolen. This may be briefly disposed of. It is not in
dispute that the vest was in fact a SAPS issued article. It bore the insignia of SAPS on
the inside. It is not an item which is commercially available to members of the public
and is part of the police operational equipment. It is eminently reasonable for an
employee of the Minister to suspect that goods found in the circumstances in which it
was and marked with the police insignia are stolen.5

[19] I turn to the third requirement of s 36 of the Act. The inability to give a
satisfactory account of the possession is an essential element of the offence created
in s 36 of the Act.6 An explanation is ‘satisfactory’ if (a) it is reasonably possible; and
(b) shows that the suspect bona fide believed that his possession was innocent with
reference to the purpose of the Act, namely the prevention of theft.7 It is therefore
required of the possessor to state where he obtained the goods and it must be clear
from his statement that his possession was innocent in the sense that either the goods
had not been stolen or that he honestly believed that it was not stolen or that he was

4 C R Snyman: Criminal Law 6th ed (2015) at 515.
5 Compare S v Nader 1963 (1) SA 843 (O) at 846 A-B.
6 Osman & another v Attorney General of Transvaal 1998 (2) SACR 493 (CC) para 16.
7 See Nader 1963 (1) SA 843 (O) at 848 F-G; S v Mojaki 1993 (1) SACR 491 (O) at 494 h-i; and S v
Aube 2007 (1) SACR 655 (W) at 657-658.

entitled to possess it.8 Both Baatjies and Jason said that Uithaler had brought the vest
to the premises. Muller was not present when this explanation was elicited, however,
he confirmed the truth of the explanation when confronted with its discovery. On the
evidence at the disposal of Van Zyl it was not only reasonably possible but probably
true. Muller testified that when he was confronted with the assertion that it was a police
vest he protested that he did not know that. This accords with the warning statement
taken from Muller later that evening in which he recorded that the vest belongs to
Uithaler and he did not know that the vest was stolen. It accords too with Jason’s
spontaneous retrieval of the vest when asked. The manner in which the police insignia
and serial number inside the vest came to be revealed is recorded earlier.

[20] Reverting to the provisions of s 40(1)(b) and (e) of the CPA, as recorded earlier,
in order to carry out an arrest in terms of these provisions the arresting officer must
harbour a reasonable suspicion that an offence had been committed. In Mabona9
Jones J considered what was required for a suspicion to be reasonable in the context
of s 40(1)(b) of the CPA. He recorded:
‘. . . It authorises an arrest on the strength of a suspicion and without the need to swear out a
warrant, ie something which otherwise would be an invasion of private rights and personal
liberty. The reasonable man will therefore analyse 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 but not certainty. However, the suspicion must be
based on solid grounds. Otherwise it will be flighty or arbitrary, and not a reasonable
suspicion.’
The same considerations apply in respect of s 40(1)(e).

[21] Had Van Zyl weighed up the explanation provided by Jason and Baatjies as
confirmed by Muller upon his arrival he could only have come to the conclusion that it
was probably true that Uithaler had brought the vest to the apartment. His own
evidence that the insignia were only visible after the vest had been removed from the

8 Snyman at 518.
9 Mabona v Minister of Law and Order 1988 (2) SA 654 (SE) at 658E-H.

blue cover and opened up lends credence to Muller’s explanation that he was unaware
of the fact that the vest was SAPS property and therefore probably been stolen. There
could be no conceivable reason to believe that this explanation was not reasonably
possible. It is apparent from the explanation that Muller bona fide believed that he was
entitled to possess it. As recorded earlier, no offence is committed unless the
possessor is unable to give a satisfactory account of his possession. The account
given by Muller clearly meets this standard. In the result the trial court and the court a
quo correctly held that the arrest and initial detention were unlawful.

Further Detention
[22] Muller’s case in respect of his further detention, as pleaded, against the Minister
is:
‘5.4 Subsequent to his first appearance before a magistrate on the 28th of November 2013,
plaintiff was detained at the instance of the employees of both defendants, until he was
granted bail and released from custody on the 2nd of December 2013.
6. The further detention of the plaintiff from the 28th of November 2013 until his release from
custody on the 2nd of December 2013, was wrongful and unlawful in that:
6.1 the Investigating Officer and/or other unknown policemen involved in the
investigation of the matter against the plaintiff:
(i) knew or ought to have known, that no reasonable or objective grounds or justification
existed for the plaintiff’s further and subsequent continued detention;
(ii) could have easily ascertained by the taking of simple investigative steps that no
such grounds or justification existed, but failed to take any such steps;
(iii) failed in his/their duty to inform that relevant Public Prosecutor/s dealing with the
matter that there were no such grounds or justification and indeed no objective facts
reasonably linking the plaintiff to the alleged offence of theft.
(iv) failed to take any steps whatsoever to ensure that the plaintiff was released from
detention as soon as possible.’

[23]   Paragraph 6.1(iii) raises an issue of alleged police impropriety intruding into the
prosecutorial process.10  In this regard the court a quo held:
‘When Jason Uithaler was brought to the Algoa Police Station shortly after [Muller’s] arrest on
27 November 2013 . . . . the failure by the detective of the [Minister] to take a statement from

10 Compare Woji v Minister of Police 2015 (1) SACR 409 (SCA).

Jason Uithaler and his failure to make a relevant entry in the police docket, and to inform the
Prosecutor of the relevant facts, contributed substantially to the further detention of [Muller]
until his eventual release.’

[24] The rationale for this conclusion is not explained nor is it readily apparent.
Firstly, the factual averments in the explanation as set out in Uithaler’s eventual
statement that the vest belonged to, and had been brought to the apartment by him,
were already before the screen prosecutor when she took the decision that a prima
facie case existed. It is contained in Muller’s warning statement. The suggestion that
Muller was not aware of its presence is irreconcilable with Muller’s evidence and the
warning statement. Secondly, even after the statement was obtained the screen
prosecutor was still of the view that the prima facie case remained undisturbed. The
failure to obtain the said statement accordingly had no impact on the course of events.
Thirdly, it is difficult to comprehend how the failure to make an entry in the occurrence
book could have contributed to the unfortunate plight of Muller after the first
appearance. In the circumstances no police impropriety intruding into the prosecutorial
process was established.

[25] It is the essence of Muller’s case that employees of the Minister failed to secure
his release when it was within their power to do so. As recorded earlier Muller has
abandoned his judgment against the NDPP and the appeal is therefore concerned
only with the liability of the Minister for the further detention at the instance of his
employees.

[26] Section 12(1)(a) of the Constitution guarantees the right of security and
freedom of a person, which includes the right ‘not to be deprived of freedom arbitrarily
and without just cause’. Section 35(1) of the Constitution provides that anyone who is
arrested for allegedly committing an offence has the right, amongst others—
‘(d) to be brought before a court as soon as reasonably possibly, but not later than—

(i) 48 hours after the arrest; or

(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours
expires outside ordinary court hours or on a day that is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be informed of the
reasons for the detention to continue, or to be released; and

(f) to be released from detention if the interest of justice permit, subject to reasonable
conditions.’
The rights enshrined in s 35 of the Constitution are echoed in s 50 of the CPA.

[27] Even before the Constitution this court held in Kader11 that:
‘[I]t is the function of the judicial officer to guard against the accused being detained on
insubstantial proper grounds, in any event, to ensure that his detention is not unduly extended.’

[28] This principle was further expounded by Harms DP in Sekhoto12 where he
stated:
‘While the purpose of arrest is to bring the suspect to trial, the arrestor has a limited role in
that process. He or she is not called upon to determine whether the suspect ought to be
detained pending a trial. That is the role of the court (or in some cases a senior officer). The
purpose of the arrest is no more than to bring the suspect before the court (or the senior
officer) so as to enable that role to be performed.’

[29] In Isaacs13, this court was called upon to decide whether the unlawfulness of
the arrest of the appellant had the result that his further detention after a remand by a
magistrate was also unlawful. They answered this question in the negative. It does not
follow that every remand order by a magistrate necessarily renders the further
detention lawful. Where a magistrate exceeds his authority or fails to discharge his
duties the Minister of Justice would ordinarily be liable for damages ensuing from his
failure.14

[30] In De Klerk,15 however, the Constitutional Court were divided on the effect of
the order of remand on the liability of the police where the magistrate had failed to
discharge his duty to the accused before him. De Klerk was unlawfully arrested on a
charge of assault with intent to do grievous bodily harm. He was promptly brought
before a court and the investigating officer recorded in the docket that she
recommended that he be released on bail of R1 000. The court was, however, a

11 Minister of Law and Order v Kader [1990] ZASCA 111; 1991 (1) SA 41 (A) at 51A-C.
12 Minister of Safety and Security v Sekhoto [2010] ZACC 141; 2011 (5) SA 367 at 383G-384A.
13 Isaacs v Minister of Law and Order 1996 (1) SACR 314 (A).
14 Compare Zealand.
15 De Klerk v Minister of Police [2019] [ZACC] 32 (CC).

‘reception court’ only. She knew that at the first appearance the remand would be a
routine or mechanical act rather than a considered judicial decision. De Klerk was
accordingly not afforded an opportunity to apply for bail and was remanded in custody.

[31] Froneman J, writing the second judgment (with whom two other judges
concurred) resonated the principles set out earlier herein and explained the effect of s
35 of the Constitution thus:
‘Subsections 35 (1)(d) - (f) impose constitutional obligations on three different institutions of
government: the police services, the National Prosecuting Authority and the Judiciary. The
police carry the responsibility to ensure a criminal suspect is brought before a court as required
by section 35(1)(d). This is an administrative function to be exercised within the broader
executive authority of government. The decision to charge a suspect under section 35(1)(e) is
one that falls under the authority and competence of the National Prosecuting Authority, an
independent institution under the Constitution. The decision to release or detain a suspect falls
within the independent judicial authority or competence of the Judiciary.’16
He considered therefore that the only constitutional responsibility which rested upon
the arresting officer was to bring the arrestee to court timeously. Once this has been
done the arresting officer had no further direct legal competence or authority to charge
the applicant or decide on his release or further detention. He accordingly concluded
that the Minister could not be held liable for De Klerk’s further court ordered detention.

[32] Theron J, writing the main judgment (with whom 4 judges concurred)
considered that the correct inquiry related not to the wrongfulness of the further
detention, but to the causation of the harm (the further detention) flowing from the
wrongful act (the arrest). She acknowledged that there is no reason why a deliberative
judicial decision (in contra distinction to merely a failure to apply the mind) could not
constitute a break in the chain of causation, however, she considered that the exercise
of a proper judicial discretion should not always be considered sufficient to break the
chain of causation.17 On the particular facts of De Klerk the arresting officer had actual,
subjective foresight that the proceedings in the ‘reception court’ would occur as they
did, that De Klerk would not be considered for bail at all and that he would accordingly
suffer the harm that he did. She held that a remand does not necessarily break the

16 De Klerk para 132.
17 De Klerk para 74.

causal chain where it was subjectively foreseen even though it is otherwise considered
abnormal. The subjective foresight of the arrestor weighed heavily with her in reaching
the conclusion which she did.18

[33] Mogoeng CJ (writing the third judgment), concurred in the judgment of
Froneman J. He, however, responded to the reasoning in the main judgment and at
para [154] he stated:
‘. . . a constitutionally-prescribed first court appearance does constitute a new intervening act
that must disrupt legal causation, and considerations of public policy and justice render it
unreasonable to impute liability to the Police for a court’s failure to fulfil its exclusive
constitutional obligations.’
Finally, Cameron J (writing the second judgement) concurred in the result of the main
judgment ‘on the very particular facts of De Klerk’s case’. He considered that where a
court has given judicial consideration to whether to remand an arrestee, the police, as
instigators of the detention, could not be liable.19 On the particular facts of the case,
however, he opined that no such evaluation had occurred.

[34] What emerges from the various judgments in De Klerk is that one half of the
court considered that a deliberative judicial decision in respect of the further detention
of the arrestee constitutes an intervening act which truncates the liability of the police
for the wrongful arrest and detention. The remainder considered that it may do so, but
not necessarily. Theron J summarised the applicable principles thus:
‘The principles emerging from our jurisprudence can then be summarised as follows. The
deprivation of liberty, through arrest and detention, is per se prima facie unlawful. Every
deprivation of liberty must not only be effected in a procedurally fair manner but must also be
substantively justified by acceptable reasons. Since Zealand, a remand order by a Magistrate
does not necessarily render subsequent detention lawful. What matters is whether,
substantively, there was just cause for the later deprivation of liberty. In determining whether
the deprivation of liberty pursuant to a remand order is lawful, regard can be had to the manner
in which the remand order was made.’20

18 De Klerk para 79 - 81.
19 De Klerk para 106.
20 De Klerk para 62.

[35] Reverting to the facts of the present matter. The investigating officer
recommended in the docket that Muller should be released on bail of R500. No reason
presents itself in the evidence to suggest that he could have anticipated that this would
not occur. The screening prosecutor instructed that bail should not be opposed and
recommended that Muller be released on warning. Her instruction to the court
prosecutor in this regard manifests her anticipation that Muller would be released. The
court prosecutor proceeded on this basis. The magistrate gave due consideration to
the release of Muller and embarked upon an enquiry whether the interests of justice
permitted his release, as envisaged in s 35(1)(f) of the Constitution. Section 60 of the
CPA prescribes the approach which a court should take to determining whether the
interests of justice permit the release of an accused person on bail. Section 60(11B)(a)
provides that:
‘In bail proceedings the accused, or his or her legal adviser, is compelled to inform the court
whether—

(i) the accused has previously been convicted of any offence; and

. . . ’

[36] The magistrate, in considering whether to release Muller, accordingly enquired
into his previous convictions. Thus it emerged that he had previously been convicted
of rape.  By virtue of the formulation of schedule 5 to the CPA the admitted previous
conviction, in the opinion of the magistrate, elevated the offence of which he was
charged to a schedule 5 offence. Section 60(11)(b) of the CPA provides that where an
accused person has been charged with an offence referred to in schedule 5 (but not
in schedule 6) he or she shall be detained in custody until he or she is dealt with in
accordance with law unless he/she, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court that the interest of justice permit his
release.  In the circumstances it placed an onus on Muller to adduce evidence to
satisfy the court, on a balance of probability, that the interests of justice permitted his
release.

[37] The presiding magistrate ruled that a formal bail application would have to be
heard in the bail court in order for Muller to adduce such evidence. Despite the best
endeavours of the court prosecutor the bail court was unable to determine the matter
on 28 November 2013. In these circumstances the magistrate postponed the matter

and ordered Muller’s further detention until 2 December 2013 which was the first
occasion that the bail application could be entertained.21

[38] In summary, the decision taken to prosecute Muller was taken by the screen
prosecutor. She had before her all the relevant information to do so. At the first
appearance the magistrate gave judicial consideration to Muller’s release and
remanded him in custody. That she was obliged to do in terms of s 60(11)(b) of the
CPA. Neither the prosecutor nor the police had knowledge of Muller’s previous
conviction and accordingly could not have foreseen that he would be remanded in
custody.

[39] In the circumstances the liability of the police for the wrongful and unlawful
arrest and detention was truncated upon the remand order made at the first
appearance. The appeal must therefore succeed in respect of the further detention.

Costs
[40] The appeal therefore succeeds in part. Each party has enjoyed a measure of
success. A significant portion of the argument in the appeal was directed at the
unsuccessful challenge to the findings in respect of the arrest and initial detention. On
consideration I think, in the circumstances of this matter, it will be fair that each party
pay its own costs. I therefore purpose to make no order for costs in the appeal.

[41] In the result:
1 The appeal succeeds in part
2 The order of the court a quo is set aside and replaced with the following:
‘(a) The appeal against the decision of the magistrate in the respect of the arrest
and initial detention is dismissed.
(b) The magistrate’s order pertaining to interest is amended to read:
‘Interest is payable on the aforesaid amount at the prescribed rate of 9% from
the date of judgment to the date of payment.’

21 Section 168 of the CPA empowers a court in criminal proceedings pending before it to adjourn the
proceedings from time to time, if the court deems it necessary or expedient, to any date on the terms
which the court may see fit and which is not inconsistent with the CPA. See also Zealand p 475D.

(c) The first appellant’s appeal against the decision of the magistrate in respect
of the further detention is upheld.
(d) The respondent is ordered to pay the first appellant’s costs of the appeal.’

________________________
J Eksteen
Acting Judge of Appeal

APPEARANCES:

For Appellant:

Adv F Pietersen
Instructed by:

The State Attonrney, Port Elizabeth
The State Attorney, Bloemfontein

For Respondent:

Adv B J Pienaar SC
Instructed by:

Swarts Attorneys, Port Elizabeth

Bezuidenhouts Inc, Bloemfontein