The Durban Regional Court has found that the arrest and detention of attorney Shabeer Goolabjith and prosecutor Kelvin Munsamy were unlawful, reports IoL.

Acting Regional Court Magistrate Fiona Seedat ruled that the Minister of Police failed to justify the arrests and subsequent detention of the pair, who instituted civil claims against the state following their arrest in August 2019.

The matter stems from a corruption investigation linked to a 2016 fraud probe.

During a search of Goolabjith’s legal offices, police seized electronic devices and later identified WhatsApp messages they believed indicated corrupt dealings between Goolabjith and Munsamy.

Based on those messages, police opened a corruption case and referred it to the Provincial Anti-Corruption Unit, working alongside prosecutors from the DPP’s office.

In August 2019, both men voluntarily reported to Durban Central Police Station after being contacted by police. They were processed, charged, and taken to court, where they were released on bail of R2 000 on the same day.

The pair later sued the Minister of Police, arguing that their arrest and detention were unlawful and carried out without reasonable grounds or a warrant.

Although the state initially defended the matter on the basis that warrants had been issued, its position shifted over time.

Those claims were later withdrawn, and on the eve of trial, the state argued that the arrests were made on instruction from the NDPP.

During proceedings, police testimony indicated the investigation had been prosecutor-driven.

However, the court found inconsistencies between the pleadings, documents, and evidence presented.

Retired Warrant Officer Sagren Govender, a key witness, conceded under cross-examination that the arrests were made without warrants and that none of the requirements for warrantless arrests under section 40 of the Criminal Procedure Act had been met.

He also acknowledged that the alleged offences did not fall under schedule one of the Act.

Govender testified that he acted on prosecutorial instructions and did not seek warrants because the accused were known individuals who were not considered flight risks.

The court rejected this reasoning, finding that prosecutors do not have legal authority to instruct police to effect arrests.

Seedat emphasised that arrest powers rest solely with police under the Criminal Procedure Act. The magistrate further found that Govender failed to exercise independent discretion and that less invasive options, such as summonses or written notices, were available to secure the pair’s attendance in court, according to IoL.

The court described the state’s litigation history as 'long and chequered' and criticised the repeated changes to its defence.

Seedat ultimately ruled that the Minister of Police had failed to prove the lawfulness of the arrest and detention.

The court declared both the arrest and detention unlawful and ordered the Minister of Police to pay the costs of the proceedings.

The issue of damages will be determined in a separate phase of the case, where the pair will seek compensation for unlawful deprivation of liberty.

Full IoL report