The Minister of Police v Olwethu Kulati

The respondent (Kulati) was arrested without a warrant on 14 April 2017 (Good Friday) by a peace officer (Allers) under section 40(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA) for reasonable suspicion of possession of dependence-producing drugs (a mandrax tablet). He was detained until 18 April 2017 at 13h00 when he was released without appearing in court. The investigation was completed on 15 April 2017 at 08h00. The respondent's mother testified but was found unreliable. The respondent himself did not testify. Police evidence indicated that the respondent was informed of his right to apply for bail under section 50(1)(b) of the CPA but made no request for bail, stating he wanted to "speak in court". The police did not bring the matter to a prosecutor for bail consideration under section 59A of the CPA because no request was made. The court a quo found the arrest and detention until 08h00 on 15 April 2017 lawful, but the continued detention from 08h00 on 15 April to 13h00 on 18 April 2017 unlawful, awarding damages of R128,000.00.

• Whether section 59A of the CPA places a duty on the South African Police Services (SAPS) to facilitate the release of a detained person on bail in the absence of a request for bail from the detained person
• Whether the continued detention of the respondent after completion of the investigation was unlawful
• The proper interpretation of sections 50(1)(b), 59 and 59A of the CPA regarding police obligations to inform detainees of bail rights and facilitate bail applications

The appeal succeeded with costs, including costs of the application for leave to appeal and costs of two counsel. The judgment and order of the court a quo were set aside and replaced with an order dismissing the plaintiff's claim with costs.

Section 59A of the CPA does not impose a duty on police officials to facilitate the release of a detained person on bail or to approach a prosecutor for bail consideration in the absence of a request from the detainee. The police's obligation is to inform the detainee expeditiously of the right to apply for bail in terms of section 50(1)(b) of the CPA. Once informed, the duty under section 59A to contact the prosecutor and facilitate bail is only triggered when the detained person requests bail. Courts must not impose duties on police officials beyond what is unequivocally set out in legislation. Where a detainee has been properly informed of bail rights but chooses not to exercise them, the continued detention does not become unlawful merely because police did not initiate the bail process.

The court expressed approval for the reasoning in Malisha v Minister of Police regarding practical considerations: there may be good reasons why a detainee does not immediately seek bail, such as lack of funds, desire to obtain legal representation, or preference to wait for a court appearance. The court noted that imposing a duty on police to consider bail for every detainee without a request would be onerous given well-known personnel shortages in the police service. The court was critical of the court a quo's reasoning and its rejection of the judgment in Malisha. The court emphasized that the matter was not a "constitutional matter" warranting departure from the normal costs principle, and that erroneous application of the Biowatch principle would be unjust and inequitable.

This case clarifies the scope of police obligations regarding bail for detainees under section 59A of the CPA. It establishes that while police have a constitutional duty to inform detainees expeditiously of their right to apply for bail (section 50(1)(b) CPA), they do not have a duty to initiate the bail application process or approach prosecutors for bail consideration in the absence of a request from the detainee. The judgment reaffirms the principle from National Commissioner of Police v Coetzee that courts must not impose duties on police officials under the guise of constitutional rights protection that are not unequivocally set out in legislation. It distinguishes cases where detainees were not informed of bail rights (which may render detention unlawful) from cases where they were properly informed but chose not to exercise those rights. The case has implications for unlawful detention claims and provides guidance on the allocation of responsibilities between police, prosecutors and detainees in the bail process.