The Regional Court in Durban has ruled that the arrest and detention of attorney Shabeer Goolabjith and prosecutor Kelvin Raymond Munsamy were unlawful, finding that police acted without legal authority when they arrested the pair in connection with a corruption investigation.
In a recent judgment, acting Regional Court Magistrate Fiona Seedat held that the Minister of Police failed to justify the arrests and detention of the two men, who had sued the state for damages arising from their arrest in August 2019.
The case stemmed from a corruption investigation that originated during a separate fraud probe conducted by police in 2016. During a search of Goolabjith’s legal offices, investigators seized electronic devices and later discovered WhatsApp messages that they believed suggested corrupt dealings between Goolabjith and Munsamy.
Based on those messages, police opened a corruption case and referred the matter to the Provincial Anti-Corruption Unit. The investigation was conducted in collaboration with prosecutors from the Director of Public Prosecutions’ office.
In August 2019, both men voluntarily presented themselves at Durban Central Police Station after being contacted by police. They were processed, charged and taken to court, where they were granted bail of R2,000 on the same day.
Through their attorney, Anand Nepaul, the pair subsequently instituted civil claims against the Minister of Police, arguing that their arrests and detention were unlawful because there were no reasonable grounds to arrest them and police had acted without a warrant.
Although the state initially defended the matter, the court noted that its legal position changed repeatedly over several years. Early pleadings suggested that warrants of arrest had been issued, but those claims were later withdrawn through a series of amendments. On the eve of trial, the state’s defence shifted again, contending that the arrests had been carried out on the instruction of the National Director of Public Prosecutions (NDPP).
During the trial, police witnesses testified that the corruption investigation had been prosecutor-driven and that instructions had come from the office of the Director of Public Prosecutions. However, the court found significant inconsistencies between the pleadings, the documentary evidence and the testimony presented.
One of the key witnesses, retired Warrant Officer Sagren Govender, admitted under cross-examination that the arrests had been carried out without warrants. He further conceded that none of the circumstances permitting warrantless arrests under Section 40 of the Criminal Procedure Act and further acknowledged that the alleged corruption charges did not fall within the offences listed in Schedule 1 of the Act.
Govender testified that he had acted on instructions from prosecutors and did not apply for arrest warrants because the two men were well-known individuals who were not considered flight risks.
The court was highly critical of this explanation. Seedat observed that while prosecutors have the power to direct investigations, neither the National Prosecuting Authority Act nor the Criminal Procedure Act grants prosecutors the authority to instruct police to arrest suspects.
The magistrate pointed to previous court decisions confirming that arrests are prima facie unlawful unless justified by law and emphasised that police officers derive their arrest powers solely from the Criminal Procedure Act.
Seedat found that Govender had failed to exercise his own discretion as a police officer and had instead followed prosecutorial instructions without considering whether there was any lawful basis for an arrest.
The judgment noted that police had several less intrusive options available to secure the attendance of the two accused in court, including summonses, written notices or indictments. The court found it particularly significant that Govender himself had acknowledged there was no reason to believe the men would evade prosecution.
“It should then have dawned on him to utilise the least invasive route in securing their attendance at court,” the magistrate said, adding that Govender had acted on instructions that were not authorised by law.
The court also criticised the handling of the matter by the state, describing the litigation history as “long and checkered” and expressing concern over the multiple amendments to the state’s pleadings over the years.
Ultimately, the court concluded that the Minister of Police had failed to discharge the burden of proving that the arrests and detention were lawful.
Seedat therefore ruled in favour of both plaintiffs, declaring their arrest and detention unlawful. The Minister of Police was ordered to pay the costs of the proceedings, with the scale of costs to be determined according to the damages ultimately proven by the plaintiffs in the next phase of the case.
The ruling clears the way for Goolabjith and Munsamy to pursue compensation from the state for the unlawful deprivation of their liberty.
sinenhlanhla.masilela@iol.co.za
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