By Duncan Wild on 13 September 2013.

The case originally involved a challenge to the requirements for a lawful arrest, in circumstances where the appellant, Mr Coetzee, was flagged down by a metro police officer and refused to stop, on the basis, according to Mr Cotzee, that he would drive to the nearest police station.  The case also considers whether the North Gauteng High Court was correct in ordering that Mr Coetzee be released from custody on the basis of his unlawful detention.

The respondents appeal to the Supreme Court of Appeal who upheld the appeal finding for the respondents, ordering the applicant to pay the costs of the appeal. In the Constitutional Court the remaining issue was an appeal against the costs order of the Supreme Court of Appeal.  The Constitutional Court, in an unanimous judgment authored by Nkabinde J (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Skweyiya J and Zondo J concurring), found that the appeal did not relate to a constitutional issue, and so leave to appeal should not be granted.

On 15 November 2009, Mr Coetzee was flagged down by a metro police officer while driving his motor vehicle.  On his version, he did not stop because he was aware of instances of criminals holding themselves out to be police officers. His son indicated to the metro police officer that he should follow them to the police station.  The metro police officer chased after Mr Coetzee’s vehicle and, with the help of reinforcements, stopped the vehicle, at which point Mr Coetzee shouted certain insults at the police officers.  Mr Coetzee was arrested and detained at the Pretoria West Police Station for “[failure] to comply with instruction of traffic officer, crimen injuria and driving unlicenced and unregistered motor”.

A dispute of fact arose on the question of bail.  It appears that Mr Coetzee was provided with the telephone number of a person who he believed to be the investigating officer, who informed him over the telephone that bail would not be granted.  It later transpired, however, that the person was in fact a metro police officer, who in any event did not have the authority to grant bail.  The metro police officer denies that Mr Coetzee ever requested bail, and there is no record in the occurrence book of bail being requested for Mr Coetzee.

An urgent application was brought in the North Gauteng High Court (“NGHC”) that evening for the release of Mr Coetzee.  The NGHC (Du Plessis AJ) ordered the immediate release of Mr Coetzee on the basis of the interdict de libero homine exhibendo, and issued an order that he be provided with the names of the relevant station commander and investigating officer, as well as with reasons why these persons should not be held personally liable for the costs of Mr Coetzee’s application by a future date.  On that date, several members of the police, including the station commander and the metro police officer who had arrested Mr Coetzee (collectively referred to as “the SAPS members”), appeared before Du Plessis AJ and were joined as respondents to the proceedings.

Regarding the question of bail, Du Plessis AJ stated that he had no doubt that Mr Coetzee had sought and been refused bail, finding it improbable that Mr Coetzee wanted to remain in custody for the night.  Du Plessis AJ then considered the offences with which Mr Coetzee had been charged, all of which, apart from crimen injuria, fall under schedule 3 of the Criminal Procedure Act, 1977 (“CPA”).  As for the charge of crimen injuria, Du Plessis AJ pointed out that normal vulgar abuse will not be an offence except when the circumstances are such that it can be regarded as serious, and held that the exchange between Mr Coetzee and the metro police officer was a minor offence.

Du Plessis AJ concluded that those responsible for deciding to grant Mr Coetzee bail had refused to do so, and that it followed that Mr Coetzee was held and detained unlawfully in violation of his rights to dignity and freedom.  Following his finding that Mr Coetzee had been detained unlawfully, Du Plessis AJ confirmed that his decision to order the release of Mr Coetzee on the basis of the interdict de libero homine exhibendo was indeed appropriate.

As to the issue of costs, Du Plessis AJ considered that costs de bonis propriis can be ordered under certain circumstances as a result of a government official’s actions, in particular where the actions of the official were unlawful and where it caused litigation and consequent costs.  As such, relying on section 38 of the Constitution and the court’s inherent power to regulate its own process, in what the Supreme Court of Appeal (“SCA”) later described as an “unprecedented punitive costs order”, Du Plessis AJ ordered that the SAPS members be held jointly and severally liable to pay costs de bonis propriis of Mr Coetzee as well as of the first and second respondents (ie. the National Commissioner of Police and the Minister of Safety and Security).  In ordering the SAPS members to pay even the costs of the first and second respondents de bonis propriis, Du Plessis AJ reasoned that the taxpayer should not be liable to pay for unlawful actions committed by government officials, as would be the case if the first and second respondents were left to pay their own costs.

This decision was overturned by the SCA, which upheld the appeal with costs.  Although the appeal was against the costs order specifically, the SCA (per Mpati P, Cloete, Ponnan, Bosielo and Petse JJA concurring) also gave consideration to the authority of a high court to release an arrested and detained person from custody before that person has been brought before a lower court.

The SCA disagreed with Du Plessis AJ’s conclusion that bail had been requested and refused.  The SCA was of the view, instead, that there was no evidence before the NGHC that Mr Coetzee had ever asked the responsible persons for bail, which in turn undermined the NGHC’s basis for concluding that Mr Coetzee’s detention was unlawful.  However, even if the application for bail had indeed been refused, the SCA held that the refusal by a police officer to grant bail could not render an otherwise lawful arrest unlawful.  While the SCA agreed with the NGHC that the desirable position is that arrests ought to be confined to serious cases, it went on to hold that where a lawful arrest is indeed effected, even if for an offence that is not considered to be serious, the arrest or subsequent detention does not become unlawful merely because a summons or notice to appear in court would have been equally effective in ensuring attendance at court, or because bail has been refused.

The SCA concluded that the interdict de libero homine exhibendo was thus not the appropriate remedy in the circumstances, as it would only be appropriate where the detention of the person sought to be released is unlawful.  Instead, the SCA held that the best the NGHC could have done, assuming that its finding that bail was sought and refused was correct, would have been to issue a mandamus directing the responsible police official to reconsider his decision regarding bail, or that Mr Coetzee be brought before a lower court on the next day during ordinary court hours.

In light of its finding, the SCA held that the basis for the costs order made by the NGHC had collapsed (while also noting that it had difficulties understanding why such an unprecedented costs order was made in the first place), and the SCA accordingly upheld the appeal with costs.

On appeal before the Constitutional Court, counsel for Mr Coetzee sought to argue that an additional jurisdictional fact for a lawful arrest should be read into the CPA to the effect that an arrestor must act reasonably and justifiably in terms of the law, and should consider whether there are less invasive options to bring a suspect before the court other than with an immediate arrest.  In order to succeed with this argument, it will be necessary to persuade the Constitutional Court that the case of Minister of Safety & Security v Sekhoto 2011 (5) SA 367 (SCA) was wrongly decided.  Moreover, counsel for Mr Coetzee will seek to convince the Constitutional Court, inter alia, that the SCA was wrong to find that the NGHC confused the lawfulness of the arrest with the lawfulness of the detention of Mr Coetzee; that the lawfulness of the arrest was not in issue; and that that the interdict de libero homine exhibendo was not the appropriate remedy.

Nkabinde J, however, found that although Coetzee sought to challenge these aspects, the only aspect of the SCA’s appeal that was challenged was the costs order. Nkabinde J considered whether this costs order was connected to a constitutional issue which would have given the Constitutional Court jurisdiction to hear it, but found that the nature of the proceedings giving rise to the costs order, being an ordinary bail application (the Constitutional Court found that issue of unlawful arrest to have been added after the fact), were not constitutional in nature.

The Constitutional Court therefore refused to grant leave to appeal on the basis that no constitutional issue was involved in the case.