Lawfulness of arrest and confiscation of property

30 November 2021 13:00 by Merilyn Kader

In Gigaba (born Mngoma) v Minister of Police and Others [2021] 3 All SA 495 (GP), Uniform Rules  - urgency. Lawfulness - when a warrant of arrest is requested under the pretext that it is being acquired for a legitimate purpose while in fact the intention is not so, it is unlawful.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil Procedure - Application for decision on lawfulness of arrest and confiscation of property pending criminal proceedings: The applicant in Gigaba (born Mngoma) v Minister of Police and Others [2021] 3 All SA 495 (GP) was married to a former national Minister (Mr Malusi Gigaba). In July 2020, the fourth and fifth respondents, being police officials and members of the Hawks, arrived at the Gigaba home to investigate two alleged offences. The first was malicious damage to property in respect of a Mercedes Benz G-Wagon, and the second related to crimen injuria in respect of a WhatsApp message, which had been sent from the applicant’s cellular phone to an associate of Mr Gigaba. Two days after the first visit, the police officers returned and demanded all the applicant’s electronic communication devices in connection with the crimen injuria complaint. A week later, they arrested the applicant.

In the present application, the applicant challenged the lawfulness and constitutionality of her arrest and prosecution, and of the confiscation of the electronic communications equipment.

The respondents raised two points in limine regarding urgency and the court’s jurisdiction to grant the relief sought and opposed the application on the merits.

Rule 6(12) of the Uniform Rules of Court sets out the principles for establishing urgency. One of the requirements is an explanation for the applicant’s belief that substantive redress in due course was unattainable. Based on the respondents’ conduct, the court was satisfied that the applicant would not obtain redress in due course as she would be subjected to continuous violations to her dignity, restrictions of movement, invasion of privacy and abuse of power.

Regarding jurisdiction, the respondents argued that the criminal court in which the applicant was to be tried was the correct forum to deliberate on the constitutionality of the arrest and admissibility of evidence. The court considered the applicant’s interest in the matter, and whether the alleged illegality directly affected her rights. The complaint of confiscation of the applicant’s property without a warrant and the refusal of the right to legal representation established such interest. The court, therefore, did have jurisdiction in the matter. The application of the principle of natural justice involves striking a balance between public and private interest.

The court found compelling reasons why the issues raised by the applicant should be addressed by it. There were serious allegations of breach of the applicant’s privacy and abuse of power by the applicant’s politically affiliated husband who directed a domestic dispute to the Directorate for Priority Crime Investigation under the guise of a conspiracy to commit murder against him. The court was satisfied that it should intervene before the criminal proceedings properly commenced.

In considering the lawfulness of the arrest, the court could not find that the magistrate who issued the warrant acted mala fides. The next question was whether the police officers’ decision to arrest the applicant was lawful and whether they were responsible for the malicious prosecution of the applicant. Where a warrant of arrest is requested under the pretext that it is acquired for a legitimate purpose while in fact the intention is not to use it for that purpose, but for another unauthorised purpose such person acts mala fide and in fraudem legis. The court confirmed that the arresting officers abused their powers, presumably to avenge a complaint made by Mr Gigaba and not for any lawful purpose. The arrest was accordingly in fraudem legis. Based thereon; the confiscation of the applicant’s possessions was unlawful. As the items seized had already been returned, the respondents were directed to restore all information unlawfully removed from the applicant’s electronic equipment.

Merilyn Rowena Kader
Legal Editor at LexisNexis