A widow, whose application to appeal her deceased husband’s “unlawful and malicious detention”, failed at the Constitutional Court this week.
The deceased man, Robert Groves, wrongfully identified as his alleged drug dealing brother, was arrested in 2016 during an under cover operation. His arrest was part of a larger operation in which a number of suspects were to be apprehended.
His widow, wrapping up his estate, became the applicant in the matter as Groves died while the case was pending in the Constitutional Court.
Groves was arrested after an undercover cop was thought to have bought mandrax pills from him at a tuckshop window. According to the investigating team, they identified Groves as the man from which they bought drugs but after viewing “bad quality” video footage, “(the investigating officer) determined that Groves was the man in the red T shirt and not the person that sold the drugs to (the undercover officer). The man behind the tuckshop window was identified as the brother of Mr Groves, who has very similar features to Mr Groves”.
SAPS however argued that Groves “facilitated the transaction”, which would allow for a conviction in terms of the Drugs and Drug Trafficking Act. The charges against Groves were however withdrawn by prosecuting authorities.
Groves’ widow appealed against her late husband’s detention and wrongful arrest and argued that his detention was “unlawful and malicious”.
The judgment read: “The Regional Court found (the warrant officer’s) execution of the arrest reasonable in light of the fact that the warrant was applied for, that there had been a briefing session, and that this was followed by the operation involving many officers with the purpose of bringing the suspects before a court.
“Based on the evidence before it, the Regional Court concluded that the applicant had failed to prove that there was no reasonable and probable cause to proceed with the arrest or that there was malice. In support of this finding, the Regional Court held that a diligent investigation was carried out prior to the warrant being issued and the arrest being effected. It held further that there was direct evidence implicating the applicant and that the arrest was not an isolated one which required the exercise of caution because it formed a part of a series of related arrests,” said Constitutional Court Justice Sulet Potterill.
She said the notions that the law is to be uniformly enforced in all places and at all times, and that all persons ought to be treated equally before the law, are central to the design of the Constitution.
“At the same time, law enforcement is, by its very nature, an exercise of discretion which is not a departure from the equality guarantee, but a part of it. We know that it is not always possible to carve out instructions for police officers that are suitable for every set of circumstances; discretion is thus the cornerstone of most of the decisions made by members of the police service. The exercise of police discretion is a regular feature of actions before the High Courts of South Africa in actions for unlawful arrest and detention.”
Justice Potterill made no order for costs and said “the deviation from the loser pays rule is so as not to discourage litigants from instituting claims against the state”.