CONSTITUTIONAL DUTY OF PUBLIC PROSECUTOR AND POLICE

LAPANE v MINISTER OF POLICE AND ANOTHER 2015 (2) SACR 138 (LT)

Arrest — Without warrant — Further detention of accused — Constitutional duty on police officers and public prosecutors handling case to ascertain reasons for further detention — Such reasons or lack thereof to be placed before court — Housebreaking implements found ‘near’ plaintiff not justifiable reason — Acted mala fide — First and second defendants liable to plaintiff.
Prosecution — Prosecutor — Powers and duties of — Prosecutor unable to assist court to assess whether prosecution and detention were justified in circumstances — Housebreaking implements found ‘near’ plaintiff not justifiable reason to refuse bail — Aware that without proof of presence of implements conduct would amount to mala fides — Prosecutors did not apply their minds, rubber-stamped requests of first defendant — Acted mala fide — First and second defendants liable to plaintiff.

The plaintiff instituted action against the first defendant, the Minister of Police, and the second defendant, the Director of Public Prosecutions, for damages arising out of an unlawful arrest, detention and prosecution. He was detained for 2 years and 13 days without being granted bail before the charges were withdrawn against him without going to trial. The plaintiff testified that he was on his way home from a nearby tavern when he was arrested. He alleged that he was denied any information as to the reason for his arrest and that he was subsequently tortured and questioned about a housebreaking and robbery. He was denied bail based on the submissions made by the investigating officer and the prosecutor that he had been found in the company of three other men and that housebreaking instruments were found near him. The other men were released on bail or on a warning but he was continually denied bail. It appeared that on the night in question an informer had tipped off the police that another robbery was to be committed that night in the area where there had recently been a spate of robberies. Despite the fact that the plaintiff had an alibi that was very easy to check, the police relied entirely on the information of an informer. The arresting officer could not say how close the alleged housebreaking instruments were to the plaintiff and his fingerprints were not found on them. The control prosecutor who took the decision to oppose bail relied entirely on the contents of the docket in this regard and to inform the decision that the plaintiff should be charged. She was unable to answer or explain why the plaintiff was treated differently — at the time of his bail application — from the others who were given bail or allowed to go on a warning.
Held, that the prosecutor’s reliance on the alleged presence of housebreaking implements near the plaintiff was not a justifiable reason to prosecute him and refuse bail. This was not simply an error of judgment. Her conduct and those of the prosecutors who took over were activated by mala fides, as they must have known that without the proof of the presence of housebreaking implements, as well as a failure to follow up on the plaintiff’s explanation about his presence at the tavern, their conduct would amount to mala fides.
Held, further, that the prosecutor and the relevant prosecutors seeking the many postponements were responsible for the unfortunate and lengthy incarceration of the plaintiff. Not one of the prosecutors had applied their minds to the case facing the plaintiff but simply rubber-stamped the request by the police. In the circumstances, the employees of the first and second defendants did not exercise their powers in a bona fide manner and the first defendant was liable to the plaintiff for the unlawful arrest and detention, while the second defendant was liable for the prosecution and continued withholding of bail.

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