What Happened in Court
The Case Overview
In August 2019, lawyer Shabeer Goolabjith and prosecutor Kelvin Raymond Munsamy turned themselves in at Durban Central Police Station after being contacted by police. They were processed, charged, and released on R2,000 bail the same day. Later, they sued the Minister of Police, claiming their arrest and detention were unlawful because no warrant was issued and there was no reasonable cause for their arrest.
How the Investigation Started
The trouble began in 2016 when police were looking into a separate fraud case. During a search of Goolabjith’s law office, officers seized electronic devices and found WhatsApp messages that they interpreted as evidence of corrupt dealings between the lawyer and the prosecutor. Based on those messages, a corruption case was opened and handed to the provincial anti‑corruption unit, with prosecutors from the Director of Public Prosecutions assisting.
The State’s Changing Story
When the civil case went to trial, the state’s legal position shifted several times:
- Early pleadings said arrest warrants had been issued.
- Those claims were later withdrawn.
- Just before trial, the state argued the arrests were made on the orders of the National Director of Public Prosecutions.
Police witnesses testified that the investigation was led by prosecutors and that they acted on prosecutors’ instructions.
Key Testimony from a Police Officer
Retired Warrant Officer Sagren Govender admitted under cross‑examination that:
- No arrest warrant was obtained.
- The situation did not meet any of the legal grounds for a warrant‑less arrest under Section 40 of the Criminal Procedure Act.
- The alleged corruption offences were not listed in Schedule 1 of the Act, which specifies crimes that allow arrest without a warrant.
Govender said he followed prosecutors’ directions because he believed the two men were not flight risks.
The Judge’s Reasoning
Acting Regional Court Judge Fiona Seedat highlighted several points:
- Prosecutors can investigate, but neither the National Prosecuting Authority Act nor the Criminal Procedure Act gives them the power to order police to make arrests.
- Arrests are presumed unlawful unless the police can show a legal basis for them.
- Police authority to arrest comes solely from the Criminal Procedure Act, not from prosecutors’ instructions.
- Govender failed to exercise his own discretion; he simply followed orders without checking if an arrest was lawful.
Less Intrusive Options Were Available
The judge noted that police could have ensured the men’s court appearance through:
- A summons or written notice to appear.
- An arraignment without taking them into custody.
Since Govender himself acknowledged there was no reason to think the men would flee, the judge said the least intrusive method should have been used.
Final Ruling
Judge Seedat concluded that the Minister of Police did not prove the arrests and detentions were lawful. She ruled in favor of Goolabjith and Munsamy, declaring their arrest and detention unlawful. The Minister was ordered to pay the legal costs, with the exact amount to be determined after the plaintiffs prove any damages in the next phase of the case.
What This Means Going Forward
The decision opens the way for the lawyer and prosecutor to seek compensation from the state for the unlawful loss of their liberty. It also reinforces the principle that police must act within the limits of the law, even when prosecutors are involved in an investigation.
Stay informed. Keep questioning. Know your rights.
