Emordi and Another v FBS Security Services (Pty) Ltd and Others (14666/2016) [2021] ZAWCHC 139; 2021 (2) SACR 451 (WCC) (27 July 2021)

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[2021] ZAWCHC 139
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Emordi and Another v FBS Security Services (Pty) Ltd and Others (14666/2016) [2021] ZAWCHC 139; 2021 (2) SACR 451 (WCC) (27 July 2021)

THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:  14666/2016
In
the matter between:
JOY
EWERE
EMORDI

1
st
Plaintiff
FIDELIS
IJEOMA
AGHOLAR

2
nd
Plaintiff
and
FBS
SECURITY SERVICES (PTY)
LTD

1
st
Defendant
SHOPRITE
CHECKERS (PTY)
LTD

2
nd
Defendant
THE
MINISTER OF
POLICE

3
rd
Defendant
CORPORATE
INVESTIGATING AND
VERACITY
ASSESSMENTS (PTY) LTD

4
th
Defendant
and
CORPORATE
INVESTIGATING AND
VERACITY
ASSESSMENTS (PTY) LTD

First Third Party
FBS
SECURITY SERVICES (PTY)
LTD

Second Third Party
Coram:
Bozalek J
Heard:
19 - 22; 26 - 28
October 2020; 24 & 27 November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time
for
hand-down is deemed to be 15h30 on 27 July 2021.
JUDGMENT
BOZALEK
J
[1]
The
plaintiffs, a married couple, sued the defendants for damages
suffered as a result of their alleged unlawful detention following
an
alleged shoplifting incident at the Shoprite store in Parow on 19
October 2015. The first plaintiff, whom I shall also refer
to as Mrs
Emordi, was together with her 16-month old daughter when she was
detained at Shoprite for several hours. At some point
she was joined
by her husband, the second plaintiff, who likewise claims that he was
detained against his will. After some hours
the police arrived,
arrested Mrs Emordi and took her to the Parow police cells where she
was charged and held overnight before
being released on warning.
Shortly after the police arrived at the store, the second plaintiff
left with the couple’s daughter.
The following day Mrs Emordi
appeared in the Bellville Magistrate’s Court when the charge of
theft was withdrawn against
her.
[2]
The
first defendant, FBS Security Services (Pty) Ltd (‘FBS’),
was contracted by the second defendant, Shoprite Checkers
(Pty) Ltd
(‘Shoprite’) to provide security guards and deal with
security issues in the store. Similarly, the fourth
defendant,
Corporate Investigating and Veracity Assessments (Pty) Ltd (‘CIVA’),
was contracted by Shoprite to provide
it with the services of a
floorwalker and video surveillance equipment in its Parow store. The
third defendant, the Minister of
Police (‘the Minister’)
was cited as the employer of the police officers who arrested and
detained Mrs Emordi.
[3]
Prior
to the commencement of the trial, the parties agreed that the
following issues would be tried first:
‘
a.
whether the first and second plaintiff and Jannell (the minor
daughter) had been wrongfully
and unlawfully detained at Shoprite’s
premises;
b.
if the answer to (a) is in the affirmative, determination of the
first, second,
third and fourth defendants alleged respective
liability for the wrongful and unlawful detention of the first and
second plaintiffs
and Jannell;
c.
whether Shoprite is entitled to an indemnity and/or a contribution
from the first
and/or second third parties on the bases alleged in
the third party proceedings;
d.
whether the first plaintiff and Janelle had been unlawfully arrested
and detained
by the Minister through his servants and if so, to
determine whether the Minister is liable for such arrest and
detention.’
The
pleadings
[4]
In
their amended particulars of claim, the plaintiffs allege that Mrs
Emordi (and Jannell, the plaintiff’s 16-month old daughter)

were wrongfully, unlawfully and without reasonable cause arrested and
detained by unnamed security guards in the employ of FBS,
by Mr
Rorisang Lebeta (‘Mr Lebeta’), an undercover floorwalker
in the employ of CIVA, and by unnamed employees of Shoprite
after she
was falsely accused of stealing from the store; further that when the
second plaintiff later entered the store to come
to his wife and
child’s assistance, he too was wrongfully, unlawfully and
without reasonable cause arrested and detained
by the same parties.
It was further pleaded that the police officers, acting in the course
and scope of their employment with the
Minister, who had been
summoned to the scene, later released the second plaintiff and
Janelle but wrongfully and unlawfully continued
to detain Mrs Emordi
and then arrested her and removed her to the Parow police station
where she was detained overnight. It was
alleged that the plaintiffs’
constitutional rights had been infringed by the various defendants
inter
alia
in that the plaintiffs had been detained and arrested without
‘
reasonable
cause’
.
[5]
General
damages were claimed on behalf of the first and second plaintiffs as
well as hospital and medical expenses. Constitutional
damages were
also sought but this claim was abandoned. Also pleaded was a claim on
behalf of the plaintiffs for losses to their
business and a loss of
earnings/earning capacity.
The
defendants’ pleas
[6]
FBS
admitted that Mrs Emordi was detained on 19 October 2015 at the
Shoprite store at approximately 17h05 and pleaded that this
was in
consequence of her having stolen various items from Shoprite. It
pleaded that neither Jannell nor second plaintiff was ever
detained.
FBS admitted that its security guard/s acted within the course and
scope of his/their employment.
[7]
Shoprite
admitted that Mrs Emordi was detained by security guards in the
employ of FBS and CIVA on the day in question acting within
the scope
of their employment with such defendants. It pleaded that such
detention was ‘
with
reasonable cause’
and in consequence of her having stolen items from the store. It
denied that the plaintiffs and Jannell were unlawfully detained
or,
that its employees ever arrested and/or detained the first plaintiff
and Jannell. It pleaded in the alternative that if a contrary
finding
was made, such arrest and detention was lawful inasmuch as there was
evidence implicating the first plaintiff in the theft
of several
items from its store, which constituted reasonable cause for such
arrest and detention.
[8]
The
Minister admitted that on the day in question at approximately 19h30,
the first plaintiff was arrested without a warrant and
taken into
custody by Sergeant Khumbuza, a SAPS employee acting within the
course and scope of his employment. The Minister pleaded
that the
arrest was lawful in terms of
sec 40(1)(b)
of the
Criminal Procedure
Act, 51 of 1977
inter
alia
inasmuch as the arresting officer had entertained a suspicion,
resting on reasonable grounds, that the first plaintiff had committed

the offence of theft.
[9]
CIVA
denied that its employee had arrested or detained the first plaintiff
or Jannell and pleaded that such employee had, on reasonable
grounds,
suspected that the first plaintiff had committed a theft and had
first reported this to FBS’ employee/s.
[10]
Shoprite
also issued notices in terms of
Rule 13
against CIVA and FBS as first
and second third parties respectively. It pleaded that in the event
that the plaintiffs’ claims
against Shoprite were upheld it
sought to be indemnified in respect of any awards or orders made
against it in terms of the provisions
of written agreements concluded
between it and those parties in terms of which they ‘
irrevocably
indemnified (Shoprite) … and agreed to hold them harmless
against any claim which may be made against one or
all of them’
.
Shoprite pleaded further that CIVA’s employee, Mr Lebeta, had
reported to Shoprite that the first plaintiff had been detained
by
him, assisted by employees of FBS, as he entertained a suspicion,
resting on reasonable grounds, that she had committed theft
on
Shoprite’s premises. Shoprite had relied on the evidence
presented by Mr Lebeta and FBS’ employees as justifying
the
suspicion that the first plaintiff had committed the offence and that
her detention was therefore lawful. Neither CIVA nor
FBS pleaded or
responded to such third party notices.
The
evidence
Mrs
Joy Emordi – the first plaintiff
[11]
Through
a Nigerian/Igbo interpreter, the first plaintiff testified as
follows. She and her husband had a stall behind Shoprite,
Parow from
which they sold clothes. That afternoon she left her husband at the
stall and, with Jannell, went to a nearby shop,
Parow Mark Fruit and
Veg (‘Parow Mark’), to purchase some groceries. Jannell
was then one year and four months old
and only just able to walk. She
gave her child a ‘
Squish’
juice (‘the juice’) which she had brought from home and
from which the child sucked throughout. At Parow Mark she bought
a
tin of Gilda tomato paste as well as some potatoes and oranges. The
fruit and vegetables were contained in transparent plastic
bags
generally used for that purpose in shops (hereafter referred to as
‘
roller
bags’
).
The fruit and vegetables were weighed at the cashier’s counter
in Parow Mark and paid for by her. She also purchased a
Parow Mark
plastic bag and left with all the items in that packet. She was given
a receipt but left it on the cashier’s till
desk, seeing no
need to keep it.
[12]
The
first plaintiff then walked to the Parow Shoprite store with Jannell
to purchase further groceries, the walk taking some three
to five
minutes since Jannell could not walk at an adult’s pace. When
she entered the store a member of the security staff
placed a
Shoprite seal on her Parow Mark bag and gave it back to her. She took
a small trolley with a shopping basket on top and
below and went into
the aisles. Jannell still had the juice in her hand. She selected
some packets of noodles and a packet of mini
yoghurts and placed them
in the bottom basket whilst Jannell sat in the top basket. She then
approached a cashier at a till, took
the items she had selected and
paid for them. Upon enquiry she told the cashier that she had brought
the juice, which was still
in her child’s hands, into the
store. She also told the cashier that she needed a plastic bag and
her groceries were put
into a Shoprite shopping bag and she was
handed a receipt.
[13]
Before
she reached the exit of Shoprite, she was intercepted by a man
wearing civilian clothes who had what appeared to be her daughter’s

juice container in his hand and which she assumed her daughter had
dropped. She was asked to accompany the man but given no reason
for
doing so. In an internal office, she encountered three uniformed
security guards, two of them women. One took her two plastic
shopping
bags, tore open the sealed bag from Parow Mark and emptied its
contents onto the floor and asked her for a receipt. Mrs
Emordi told
them she had left the receipt for the items bought at Parow Mark at
that shop and asked if she could leave her items
and her daughter and
run to Parow Mark to get the receipt. They would not allow her to
leave the premises and she then said that
they could accompany her to
Parow Mark. This request was also refused. Her Shoprite bag was then
opened and she was asked for a
receipt for those items. She told the
guards that she had left this with the cashier and could she fetch
it. She then ran to the
cashier and got the receipt for the items
bought at Shoprite and showed it to a security guard. The man who
intercepted her, later
identified as Mr Lebeta, said he would call
the police and she told him he could do so.
[14]
The
security office in which Mrs Emordi found herself had a gate with a
mesh grille opening onto the public passage-way behind the
shop near
where her stall was situated. She called out to a passer-by to call
her husband. He arrived but was refused entry by
security whereupon
he forced himself into the office. She explained her situation to her
husband who tried to intercede on her
behalf. Her husband was then
also detained because the office door was closed. Before he had
arrived, she had been held for three
hours together with her
daughter. Her husband only spent about half an hour there since, when
the police arrived, they told him
to take the child home, which he
did. The police officers who arrived conversed only with Mr Lebeta
and spoke in Xhosa despite
her request to them to speak English so
that she could understand what was being said. They went upstairs
with Mr Lebeta and returned
after about 15 minutes. One of them
handcuffed her and told her that they were taking her to the police
station. The police officials
gave her no explanation for their
actions and asked her nothing about the items which she had purchased
or which she had allegedly
stolen. By the time she left with the
police there was a crowd of Nigerian people outside the store
shouting at the police and
demanding to see the video footage of her
allegedly stealing items from the store.
[15]
Mrs
Emordi testified at some length about the conditions in which she was
held overnight at Parow police cells including an alleged
diabetic
coma into which she fell. These aspects of her detention are,
however, not material to the issues which this Court must
determine.
She was released the next day after being issued with a notice to
appear in court the following day on a charge of theft.
When she
appeared in court, the charges were withdrawn against her. Soon after
her release, she went to Parow Mark to get the receipt
which she had
left there. She first spoke to a cashier who then spoke to her
manager who in turn told her that they would first
have to confirm on
their CCTV footage that it was indeed her who bought the items on the
day in question. Thereafter many till
slips were printed until
eventually hers was found. She presented a copy of that till slip to
the Court, as Exhibit X. Mrs Emordi
also presented, as Exhibit B, a
shopping bag which she said she had purchased from Parow Mark and
used on the day in question.
It had been in a Shoprite shopping bag,
together with the items which she had purchased, which her husband
had brought home from
Shoprite when he left the store on the evening
in question.
[16]
In
cross examination on behalf of Shoprite, it was put to her that she
could not have obtained a Shoprite bag since her till slip
indicated
that she had not paid for such an item. Mrs Emordi was also taxed
with the contents of a forensic report which had been
drawn up by a
clinical psychologist, Ms Pam Tudin, whom she had consulted
approximately three months after the incident. It was
put to her that
there were significant discrepancies between her present account of
the incident and what she had told the psychologist.
It was also put
to her that Shoprite’s manager, Mrs Fourie, would testify that
she had seen video footage of her taking oranges
and potatoes in
separate roller bags and placing them in the bottom basket of her
trolley.
[17]
On
behalf of CIVA it was put that Mr Lebeta had seen the first plaintiff
enter Shoprite with a baby pram, which itself had made
her suspect,
and as a result he had followed her throughout her visit to the
store. Mrs Emordi emphatically denied that she ever
had a pram. It
was put that Mr Lebeta would testify that he also saw her take a
Squish juice from a shelf and give it to her daughter
and discard the
empty container in a fridge; further that Mr Lebeta had seen her take
the oranges and potatoes and place them in
roller bags, unmarked,
unweighed and unpriced, into a white plastic bag which she had taken
out from underneath her pram. All this
was denied by Mrs Emordi. It
was also put that she had proceeded to the tills but had not stopped
at any till or paid for any items.
This too was denied by Mrs Emordi.
It was put that the floorwalker had shown the footage of Mrs Emordi
stealing items to both the
police and Mrs Fourie and that all of them
had been satisfied that she had shoplifted.
[18]
During
cross examination on behalf of the third defendant, Mrs Emordi
maintained her version that the SAPS members did not interact
with
her at any stage before arresting her nor did they give her any
opportunity to see, or to ask to see, the video footage.
Mr
Fidelis Agholar - the second plaintiff
[19]
The
second plaintiff also testified through an interpreter. On the day in
question, he had been at his stall when someone came to
tell him that
his wife was being detained at Shoprite. He rushed to the shop. He
was refused entry to the security office by a
guard but forced his
way in. He asked a security guard to show him the CCTV footage of his
wife but was told that he must wait
until the police arrived, which
he did. When the police arrived, they went upstairs with other staff
and later asked him to leave
which he did, taking Jannell. Upon
returning to his stall, he found that two bags of his merchandise had
been stolen in his absence.
He testified that a security guard at
Shoprite had given him a Shoprite carrier bag in which a Parow Mark
carrier bag was placed
containing noodles, yoghurt and tin of tomato
paste as well as the Shoprite receipt. He visited his wife that night
in the cells
taking her food and medication. The following day she
was released from the cells and on the next day, when they attended
at the
Bellville Magistrate’s Court, the charge against her was
withdrawn.
[20]
In
cross-examination of Mr Agholar, it emerged that he had been
determined to reach his wife and child who were being detained at

Shoprite and had remained with them until asked to leave by the
police. Mr Agholar stated that the door to the security office
had
been locked when he was inside but conceded that he had never tried
to leave the office nor had he asked for the door to be
unlocked.
The
defendants’ evidence
[21]
The
Minister led the evidence of the arresting officer, Sergeant
Khumbuza, and two other police officials who dealt with Mrs Emordi
at
Parow police cells. FBS led the evidence of the security guard, Mr
Canda, who first apprehended Mrs Emordi whilst CIVA placed
the
evidence of the floorwalker, Mr Lebeta, before the Court. Shoprite
led the evidence of its manager, Mrs Fourie. It is appropriate
to set
out their evidence in the order in which the incident unfolded.
Mr
Rorisang Lebeta
[22]
Mr
Lebeta testified that had been employed as a floorwalker by CIVA and
was on duty at the store on the day in question. His job
entailed
dressing in civilian clothes and posing as a customer whilst looking
out for shoplifters or incidents of shoplifting.
The first thing he
looks out for are shoppers who are pushing a pram since he views such
persons as immediately suspect. If he
does not see an actual incident
of shoplifting, he takes no action. If he sees such an incident, he
will inform the security guards
when the suspect has walked past the
tills without paying. The guard will stop that person and take them
to the security office
where he or she will be told why he or she has
been stopped. The person is then searched and if items are found
which have not
been paid for, the manager is informed. He or she will
then follow the protocol and call the police. At the time of the
incident,
he had a year and eight months’ experience as a
floorwalker.
[23]
Mrs
Emordi had entered the store through the side entrance. She was
pushing a pram with a child in it and had no shopping bag with
her.
She took a Squish juice off a shelf and gave it to her child. He
continued to follow Mrs Emordi but not so closely so as to
be
noticed. Before reaching the fruit and vegetable section, she stopped
at a cold items fridge and discarded the empty juice container
in it.
When she got to the fruit and vegetable section, he was able to
observe her closely. She took potatoes and oranges and placed
them in
separate roller bags but did not have them weighed and priced at that
counter as is required in Shoprite. She placed the
items in the
bottom of the child’s pram and then went to the express tills
but just walked past them whilst holding her child
and pushing the
pram. He went to the entrance and informed a security guard that Mrs
Emordi had stolen items. She was then stopped
by the security guard
who accompanied her to the security office. He himself did not speak
to Mrs Emordi until they were inside
the office where other security
guards, two females, were present. Inside the office, they asked one
of the female guards to search
the child’s pram and the oranges
and potatoes were produced from the bottom of the pram, still in
roller bags. There was
nothing else in the pram. He asked Mrs Emordi
for a till slip but she did not have one. Although he had heard Mrs
Emordi’s
testimony in court that she purchased noodles and
yoghurt before she was apprehended, he had not seen this.
[24]
Mr
Lebeta testified that Mrs Emordi had not run out of the security
office to the cashier to get a Shoprite till slip. He went to
the
store manager, Mrs Fourie, and told her that Mrs Emordi had taken
items and could produce no till slip. The witness was shown
Exhibit
B, the Parow Mark bag, and it was put to him that the potatoes and
oranges were in that bag in separate roller bags. He
denied this,
saying that he was seeing the Parow Mark bag for the first time in
court. The atmosphere in the security office had
not been calm since
Mrs Emordi was shouting. The manager, Mrs Fourie, had come into the
office and asked what was going on. She
asked questions of Mrs Emordi
but there was no answer. She also asked Mr Lebeta to go with her to
view the video footage and together
they did so. Following his
employer’s protocol, he had asked Mrs Fourie to call the
police. This was not his decision but
it was his employer’s
procedure for the police to be called in such situations. Mrs Fourie
did so. He took the fruit and
vegetables back to the relevant counter
to be weighed and given a price and, through Mrs Fourie, obtained a
training-mode till
slip to get the value of the various items. A copy
of this till slip was produced as Exhibit C. When Mr Agholar arrived
later,
Mrs Emordi started shouting and pointed at him (Mr Lebeta)
whereupon Mr Agholar assaulted him. Security guards intervened but
not
before Mrs Emordi had also hit him.
[25]
The
police only arrived after the store had closed. He had explained to
them what had happened and they too asked to see the video
footage.
With Mrs Fourie’s permission they all viewed the video footage
in the camera room. There was a policeman who spoke
Xhosa and one who
could speak Afrikaans who spoke to Mrs Fourie. The witness is not
conversant in Afrikaans and speaks only ‘
diluted’
Xhosa, his home language being Sotho. After viewing the footage, he
went with the police to the boardroom where his statement was
taken
and which he duly identified in the trial bundle. He was also shown a
further affidavit apparently made by him on or about
26 August 2016.
Mr Lebeta said that he had never seen this statement before and the
signature on it purporting to be his was not
his. Shown pictures of
the exit from the security office to the public passage way, he
stated that there had been a lot of Nigerian
people gathered outside
shouting and protesting over Mrs Emordi’s detention. He was not
able to leave the store after the
police arrested Mrs Emordi because
of the crowd’s hostility. He never worked again at that store.
Mrs Fourie had called his
employer the following day saying that the
Nigerian people intended to harm him and he must be taken to work at
another store.
He still works for CIVA but now only as a camera video
operator. Regarding the Squish juice, he said that it was he who
retrieved
it from the cold items fridge and that there had been no
security sticker on it.
[26]
Under
cross-examination on behalf of Mrs Emordi, he stated that his police
statement was neither read to him nor given to him to
read. He could
read but cannot understand English well. He stated, repeatedly, that
the police officer who had written his statement
had already viewed
the video footage. When it was put to him that Sergeant Khumbuza
denied ever seeing the video footage the witness
said that he thought
that the policeman had forgotten this because the incident had
happened so long ago. He agreed that the video
footage would be
important evidence but could not say whether it had been preserved.
At the time, he had been a floorwalker and
had only limited knowledge
of the video camera system. He had not been taught to save footage. A
portion of his police statement
where he stated that Mrs Emordi ‘
paid
for yoghurt and other stuff’
was
put to him and he was asked to explain this apparently conflicting
evidence. He said that the incident had happened a long time
ago but
that in any event Mrs Emordi had gone past the tills without paying.
[27]
Mr
Lebeta refused to answer questions regarding his August 2016
statement, saying that it was not his and nor had he ever consulted

with any attorney or with his employer regarding it. He had not been
in Cape Town in August 2016 but in the Eastern Cape on sick
leave
recovering from a road accident. It was pointed out to him that the
statement was dated two days after the plaintiff’s
summons was
served on CIVA but he insisted that he had never been requested by
his employer to make any such statement.
[28]
Confronted
again with that portion of his police statement indicating that Mrs
Emordi had paid for some items at Shoprite, Mr Lebeta
appeared to
suggest that this may had happened unseen by him when he went to
alert the security guard – but in the same breath
he added this
could only have taken him five seconds. When asked directly whether
Mrs Emordi had paid for the yoghurt and ‘
other
stuff’
his answer was that he could not remember since the incident had
happened a long time ago. He continued to insist that Mrs Emordi
had
been pushing a pram. When it was put to Mr Lebeta that Mrs Emordi had
testified that she had bought the fruit and vegetables
from Parow
Mark and that he had assumed incorrectly that she had taken them from
Shoprite, his response was that he had not been
present (at Parow
Mark) and did not even know where it was. He also appeared to deny
that Mrs Emordi had ever mentioned that she
bought the items from
Parow Mark. Shown the Shoprite till slip, Mr Lebeta stated that he
did not remember seeing it and that the
incident had happened a long
time ago, but he did not dispute it. He testified there were language
difficulties between him and
the police but that they had arrested
Mrs Emordi based on what he had said and what they saw on the video
footage. When it was
put to him that he could not recollect the
events of the day in question and was making up his version as he
went along, his answer
was that he had a ‘
bit
of a memory’
of what happened that day. When Mrs Emordi was apprehended by Mr
Canda (and himself), it had appeared to them as if the fruit and

vegetables had been stolen because there was no price sticker on
either roller bag or any receipt to account for them.
Mr
Mfundo Canda
[29]
Mr
Canda was a security officer employed by FBS and was on duty at the
main entrance of the shop on the day in question. Mr Lebeta
had
approached him and told him that Mrs Emordi had stolen something from
the shop and that he should stop her when she left. He
did so and
took her to the staff/security office. She was with a child and had
oranges and potatoes in roller bags in her possession.
In the
security office she was asked for the till slip for the fruit and
vegetables but could not produce one. Mr Lebeta also asked
her where
the juice was that she had but he cannot remember her response. Mr
Lebeta left to go and call the manager because Mrs
Emordi was
‘
fighting’
with them. Mrs Emordi had said that they were accusing her of
stealing but she had not done so. She had even hit Mr Lebeta.
A
crowd had gathered outside the security gate in the public passage –
way behind the shop and there was much shouting. When
Mr Lebeta came
back with the manager, Mrs Fourie, she asked Mrs Emordi what had
happened but the latter just shouted at her. Mrs
Fourie and Mr Lebeta
left for the camera room to look at the video footage. Mr Lebeta came
back in due course and Mrs Fourie called
the police. He himself had
not seen the video footage nor did he at any stage see any plastic
shopping bag, including a Parow Mark
bag.  At some point Mr
Agholar arrived, looking for his wife and child. He too tried to hit
Mr Lebeta and Mr Canda had been
required to intervene between them.
Mr Agholar had also slapped one of the female security guards. Mr
Agholar stayed in the security
office but he had behaved in an unruly
fashion. He eventually left with his child when employees of a
security firm ADT, arrived.
[30]
In
his evidence in chief, Mr Canda said that Mrs Emordi never asked to
be allowed to go to Parow Mark to fetch a receipt. Under

cross-examination however he said that whilst in the security office
she had said that she had got the potatoes and oranges from
Parow
Mark. He testified that it was Mrs Fourie’s decision whether
the police are called or not. Mr Canda stated that suspects
are
detained only when the security staff are certain that the person had
stolen. He added that the security guards had trusted
Mr Lebeta on
this occasion because he had never made a ‘
false
arrest’
.
[31]
Under
cross-examination, Mr Canda conceded that there were facts that he
could not recall because the incident had taken place so
long ago. He
had no knowledge of whether Mrs Emordi had bought any items such as
noodles and yoghurt from Shoprite. All that he
had been told about
were the oranges and potatoes. Presented with Exhibit B – the
Parow Mark carrier bag – Mr Canda
confirmed that the seal on it
was a Shoprite seal and that it was part of the security guards’
processes that such a bag
is sealed when a customer entered the store
with items bought from another shop.
Mrs
Magdalene Fourie
[32]
Mrs
Fourie was the manager of the Shoprite store in Parow on the day in
question although she had since retired. The store’s
opening
hours were Monday to Thursday from 8am to 6pm. Security in the store
had been outsourced to FBS which provided security
guards to be on
the lookout for any shoplifting incidents or other trouble. CIVA
provided the services of video camera operators
and floorwalkers. The
floorwalker/s patrol/s the store on the lookout for shoplifters while
the camera operator/s sit/s in the
camera room and looks at monitors
which cover most of the store. In certain instances, there is only a
floorwalker on duty who
has some knowledge of how to operate the
camera and this had been the case on the day in question. In cases of
shoplifting, one
waits until the person has passed the tills because
by then it is clear that they do not intend paying for the items they
have
taken. The protocol is to take the suspect to the security
office where they are searched. If the culprit is a child, the child

is brought to her office and family members are called in to fetch
the child.  A similar policy applies to elderly people
because
they are prone to forgetting to pay for items. In such an instance,
she would call for a family member of the person. Security
staff will
tell her what they saw and what they found on the search. Sometimes
people admit theft, in other cases they do not.
When they do not
admit the theft she asks to see the video footage. If the video
footage shows the theft, she then phones the police.
If the video
footage is not conclusive, she still calls the police and leaves it
up to them. Before the police arrives the person
is detained ‘
at
the back’
by the security guards. The police will always ask for the video
footage and she would go with them and the camera operator to
the
camera room to view the footage. Mrs Fourie estimated that there were
approximately two to four shoplifting incidents per week
at the
store.
[33]
On
the day in question, shortly before closing time, Mr Lebeta came to
tell her that he had caught a lady giving her child a Squish
juice
and then taking potatoes and oranges without paying for them. She
went down to the security office, opened the door and encountered
a
big commotion inside. There were many people standing outside in the
public passage way behind the store. She tried to ask Mrs
Emordi what
had happened but through that noise nobody answered. She does not
know if this was a result of that noise. Mrs Emordi
had a young child
in her arms. Mrs Fourie had asked ‘
what
is happening, what is the problem’
but there was no response. The crowd behind the mesh gate was
shouting and screaming. She then went with the floorwalker to see
the
video footage but before doing so he showed her the packets and the
items that Mrs Emordi had allegedly taken. There were potatoes
in one
roller bag and oranges in another with no price sticker on either. At
that time, customers had to weigh their fruit and
vegetables at that
particular counter. The only other item she saw was an empty Squish
juice container. In the camera room, Mr Lebeta
showed her
footage of a lady taking a roller bag and putting potatoes in it and
then putting oranges in another bag. Mrs Fourie
could not remember
what this person had done with the bags after that. She could not
remember if there was any footage showing
the Squish juice. There was
also video footage of Mrs Emordi passing the tills. She could not
remember seeing any footage of Mrs
Emordi pushing a pram or a
trolley.
[34]
When
the police arrived she and Mr Lebeta showed them the footage after
which one of the policemen said ‘
Dan
het die vrou gesteel – dit is ‘n saak’
.
The police then went with Mr Lebeta to the boardroom where a
statement was taken from him. The potatoes, oranges and juice
container
were scanned and a ‘
training-mode’
till slip produced giving their value. A copy of this till slip
(trial bundle, page 30) reflected the oranges as having a price
of
R4.61, the potatoes R9.30 and the ‘
Squish
and Go baby food’
as
having a price of R7.59 i.e. a total of R21.50. If the Squish juice
had been bought from another Shoprite store it would scan
again in
her shop but if bought from another shop would not scan.
[35]
When
she first came into the security office, she had asked Mrs Emordi
what was going on but had asked her nothing else. Mrs Fourie
stated
it was correct that she takes the decision whether to call the police
and in doing so she had exercised her discretion.
She was referred to
the protocols for dealing with minors and elderly persons suspected
of shoplifting contained in the written
agreements with FBS and CIVA
and said that she had never seen these but had only been advised
about them in meetings. When the
Shoprite till slip showing the
purchase of yoghurt and noodles was put to her, Mrs Fourie stated
that she could not speak to it
but could not dispute it. She could
only testify regarding the Squish juice and the fruit and vegetables.
When it was put to her
that Mrs Emordi’s version was that she
bought the potatoes and oranges shortly before at Parow Mark, Mrs
Fourie’s response
was that she had seen her taking the fruit
and vegetables on the video footage. When shown the Parow Mark
receipt she stated that
she did not know whether she disputed it or
not. She herself had heard no talk at the time of getting a receipt
from Parow Mark.
She had seen nothing on the video footage regarding
the Squish juice. Certain aisles are not covered by the camera, only
‘
hotspots’
,
one of which was the fruit and vegetable section.
[36]
Asked
what her reasons were for accusing of Mrs Emordi of stealing the
Squish juice, her answer was that Mr Lebeta had told her
so and
secondly, that everyone knows that when you come into the store you
must show what you are bringing in. When she was asked
about the
language used in her dealings with Mr Lebeta, Mrs Fourie stated that
the latter spoke to Mr Canda and Mr Canda then spoke
to her. She
referred to Mr Lebeta’s English as being ‘
broken’
English. She confirmed that that had been Mr Lebeta’s last
working day. Asked whether she had instructed anyone to keep
the
video footage in question, Mrs Fourie’s reply was that the
police normally come back after a few days and ask for the
footage
whereupon it is cut to a CD. She had never heard the outcome of the
case and as branch manager had many areas of responsibility.
Why, she
asked rhetorically, would one stress over one case?
The
third defendant’s case
Sergeant
Nceba Khumbuza
[37]
Sergeant
Khumbuza testified that he had been driving a patrol van on the day
in question and responded to complaints. When he came
on duty at
17h45, he received a handover complaint from the day staff and made
his way to the Shoprite store in Parow for a shoplifting
complaint.
There he met the complainant, Mr Lebeta, who pointed out the suspect
explaining that she took a baby juice called Squish,
which her child
drank. Thereafter, he was told, she dropped the container near the
chicken fridge before proceeding to the fruit
and vegetables section
where she put oranges and potatoes in two roller bags and then walked
past the tills without paying for
any of these items. When she was
stopped by the security guard she was unable to produce a till slip.
[38]
The
witness found Mrs Emordi in the security office handcuffed near a
television monitor. He took a written statement from Mr Lebeta
and
asked the staff to release Mrs Emordi from her handcuffs. He then
explained her rights to her and the reason for her arrest,
namely, an
allegation of theft from Shoprite but gave no further details. He
based the charge solely on the information from Mr
Lebeta and the
latter’s description of her clothing. Mrs Emordi had said
nothing to him. He and his partner, Constable Tsewu,
took Mrs Emordi
to the police station in the back of a police van but did not
handcuff her. There he wrote up her notice of rights
but Mrs Emordi
refused to sign it or any other documents. She suffered no illness
and required no medication in his presence. He
then left her with a
cell guard, Sergeant Kevin Adams.
[39]
The
witness stated that according to Mr Lebeta there was video footage
available. However, it was not retrievable or viewable when
the
police arrived because it was after hours. The witness did not think
viewing the footage was necessary to arrest Mrs Emordi
because of
what Mr Lebeta had told him, which in his view was reason enough to
arrest her. Asked why he did not release Mrs Emordi
on warning, his
answer was that only the investigating officer or a senior officer
can do that. He took Mrs Emordi into custody
at about 7:30pm at
Shoprite. Under cross-examination by Mrs Emordi’s counsel, the
witness was unable to recall if there was
a crowd outside the
security entrance to Shoprite. He insisted that the store’s
security guards had handcuffed Mrs Emordi
to the rails of a
staircase.
[40]
Sergeant
Khumbuza said that he had never asked Mrs Emordi for her version
before or after arresting her but went solely on Mr Lebeta’s

version of events. It was put to him that to have arrived at a
reasonable suspicion that Mrs Emordi had committed theft he would

have had to have view the video footage and his response was that he
agreed, but the footage was not retrievable because it was
after
hours. He was also referred to SAPS standing orders stating that an
arrest was a drastic infringement of rights. His response
was that it
was the decision of the investigating officer or the senior officer
to release a suspect on bail. He agreed that he
should have asked Mrs
Emordi what her version of events was. He said that there was a
reason for him not doing so but could not
recall it. He explained
that the Shoprite staff had waited for the police for three hours and
everyone wanted to go home. He did
not see any evidence that Mrs
Emordi had bought yoghurt and noodles. He denied that he had not told
Mrs Emordi the reason for her
arrest. Much cross-examination of
Sergeant Khumbuza concerned Mrs Emordi’s experience after she
was brought to Parow police
station but it is not necessary to deal
with this material.
[41]
In
summary, it was put to the witness that Mrs Emordi’s arrest had
been unlawful because as a police officer he had failed
to act on a
reasonable suspicion and had not exercised a proper discretion
through failing to take into account Mrs Emordi’s
version of
events and not considering the video footage before her arrest. It
was also put to the witness that he should have released
Mrs Emordi
and spared her a day’s detention. His answer again was that a
suspect can only be released after verification
of her address and
the decision as to whether to do so was that of the investigating
officer or an officer more senior than he
was.
[42]
In
cross-examination on behalf of other defendants, the witness conceded
that his recollection of events on the day in question
was not good.
He could not remember any crowd of people outside making a great deal
of noise and was nonplussed when told that
Shoprite would never have
handcuffed Mrs Emordi. He insisted that he took Mr Lebeta’s
statement in a security office and
not in the boardroom upstairs. He
insisted that neither he nor his colleague saw the video footage and
said that neither would
have said anything in Afrikaans since this
was not their language. He had no explanation for not asking Mrs
Emordi whether she
had a till slip or where she got the items. In
response to a question from the Court, the witness said he could have
mixed up this
particular incident with another shoplifting incident.
Sergeant Khumbuza stated that it was the duty of the investigating
officer
to take a statement from a suspect. He would not arrest an
innocent person and he had believed that Mr Lebeta would not make an

unjustified allegation.
[43]
Sergeant
Kevin Adams and Constable Melanie Jantjies testified on behalf of the
third defendant regarding Mrs Emordi’s detention
at the Parow
police cells. Again, this evidence is not material to the questions,
which the Court must determine and need not be
canvassed.
Absolution
[44]
At
the conclusion of the plaintiffs’ case all defendants applied
for absolution from the instance in respect of the second
plaintiff’s
claims for general damages and material losses arising out of his
detention. This application was granted on
the basis that it was
clear that the second plaintiff was at all times in the security
office of his own free will and could have
left at any time.
The
respective cases for the parties
[45]
Mrs
Emordi’s case was that her version of events should be
accepted, namely, that she had stolen none of the items in question

from Shoprite’s store and that had she been afforded an
opportunity to fetch the receipt from Parow Mark, which had been

unreasonably refused, she would have been able to demonstrate that
she had not stolen the fruit and vegetables in question.
[46]
On
behalf of FBS it was contended that Mrs Emordi’s version should
be dismissed by reason of her lack of credibility and reliability
as
a witness coupled with the probable facts which supported the
reasonable suspicion that Mrs Emordi had committed shoplifting
in
respect of all three items. It was further contended that FBS should
not be held liable since, although its employees did not
see any act
of theft themselves, they were informed thereof by Mr Lebeta and were
justified in relying on his allegations. Together
with the fact that
Mrs Emordi had been unable to provide proof of purchase of the items
allegedly stolen, its employees had acted
reasonably in the
circumstances. Counsel also relied on Mrs Emordi’s concession
that if someone was discovered leaving a
store with fruit and
vegetables in a roller bag without a sticker, it might well be
considered that the items had not been paid
for. Ultimately,
therefore, it had not been unreasonable to suspect Mrs Emordi of
shoplifting and to detain her on that suspicion.
[47]
The
primary argument raised on behalf of Shoprite was that there was no
evidence that, as pleaded by Mrs Emordi, ‘
employees
of the second defendant (‘the store employees’)’
wrongfully and unlawfully arrested and detained her; further in this
regard, that the first plaintiff had not pleaded that the
actions of
FBS or CIVA could be attributed to Shoprite on the basis of vicarious
liability or for any other legal reason. Shoprite
pointed out that it
had pleaded that Mrs Emordi was detained by security guards in the
employ of FBS and CIVA who acted in the
course and scope of their
employment with such parties. Furthermore, it had pleaded a specific
denial that its employees ever arrested
the first plaintiff. In the
alternative, that if it was found that its employees had arrested and
detained the first plaintiff,
such acts were lawful in that there was
evidence implicating Mrs Emordi in the theft of items, which was
reasonable cause for her
arrest and detention. As regards its third
party claims, Shoprite relied on the terms of the agreements with FBS
and CIVA and the
fact that neither delivered a plea denying any of
the allegations made by Shoprite in its
Rule 13
notice. Since no such
allegations had been disputed, Shoprite – if found liable –
was entitled to contractual indemnity.
[48]
The
Minister relied on
sec 40(1)(b)
of the
Criminal Procedure Act which
provides that a peace officer may, without a warrant arrest, any
person reasonably suspected of having committed an offence referred

to Schedule 1, which includes theft. Reliance was also placed on case
law to the effect that in determining the lawfulness of an
arrest,
object as opposed to motive was important; and further that when a
peace officer exercised the discretion to arrest this
too would be
lawful provided that the decision was within the bounds of
rationality. It was submitted on behalf of the Minister
that Sergeant
Khumbuza had formed the necessary reasonable suspicion based on Mr
Lebeta’s account of Mrs Emordi removing
various items without
paying for them, the confirmation by Mr Lebeta and Mrs Fourie that
they had viewed the video footage confirming
the above account and
the fact that Mrs Emordi had been unable to produce a receipt for any
of the items in question.
[49]
On
behalf of CIVA it was contended that its denial that its employee, Mr
Lebeta, had detained and arrested Mrs Emordi should be
upheld,
inasmuch as her detention was effected by FBS’ employees and
not by Mr Lebeta, further that, even if this was not
found to be the
case, Mr Lebeta had held a genuine belief, founded on reasonable
grounds that Mrs Emordi had committed theft. It
was further contended
that any discussion of CIVA’s liability should focus on a
period of alleged detention and arrest before
the police arrived
since any possible liability on the part of CIVA ceased when the
police arrested Mrs Emordi.
The
Law
[50]
The
first plaintiff’s claim is based on the deprivation of her
liberty, following a wrongful arrest. LAWSA
[1]
contains an enlightening discussion on the infringement of the right
to
corpus
through the wrongful deprivation of liberty, which consists in the
unjustifiable and intentional infliction of a restraint upon
a
plaintiff’s personal freedom.
[51]
The
defendant or his or her agent must have effected the deprivation, as
is the case where a police officer arrests and detains
a suspect.
Relyant
Trading (Pty) Ltd v Shongwe
[2]
concerned an action for damages by a party arrested by the police
pursuant to a complaint from a retailer that a customer had
fraudulently purchased items. The Court, per Malan AJA, observed that
‘
to
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself, or someone acting as his agent
or
employee deprived him of his liberty. Generally, where the defendant
merely furnishes a police officer with information on the
strength on
which the latter decides to arrest the plaintiff the defendant does
not effect the arrest’
.
[52]
The
deprivation must be shown to be wrongful; in other words, the Court
must be satisfied that liability should ensue in delict.
The authors
note that deprivation of liberty is inconsistent with the founding
constitutional values of freedom and constitutes
a serious invasion
of one’s constitutional and private law rights. As such, it is
prima
facie
unlawful. Public policy dictates that the onus is on the plaintiff to
establish when and where the detention occurred and that
it is
sufficient merely to plead that the detention was unlawful;
thereafter the person who caused the deprivation bears the onus
to
justify the conduct and prove that the conduct was lawful. The
enquiry is objective and, if a person is arrested, the defendant’s

bona fides or motive does not effect the lawfulness or otherwise of
the arrest. The standard is whether there are ‘
facts
and circumstances sufficient to warrant a prudent man in suspecting
that the accused had committed, or was about to commit
a criminal
offence …’
.
[3]
[53]
The
premium that the Courts place on personal liberty has been repeatedly
stressed. In
Olivier
v Minister of Safety and Security and Another
[4]
Horn J held:
‘
Personal
liberty weighs heavily with the Courts. A balance has to be found
between the right to individual liberty on the one hand
and the
avoidance of unnecessary restriction of the authority of the police
in the exercise of their duties on the other hand.
There is no doubt
that when these factors are evenly balanced, the scales in a
democratic constitutional society would fall on
the side of
individual liberty’.
[5]
[54]
It
was pointed out in
Latakgomo
v Minister of Safety and Security
[6]
by a full bench of the Gauteng Division that
sec 12(1)(a)
and (b) of
the Bill of Rights provides that ‘
everyone
has the right to freedom and security of the person, which includes
rights – (a) Not to be deprived of freedom arbitrarily
or
without just cause; (b) Not to be detained without trial …’
.
Whilst
sec 39(2)
provides that ‘
when
interpreting any legislation, and when developing the common law or
customary law, every Court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights’.
[55]
In
the present matter, there is no real distinction to be drawn between
the Minister, who relies on the provisions of
sec 40(1)(b)
of the
Criminal Procedure Act as
the legal basis upon which its servants
were entitled to arrest the plaintiff, and the balance of the
defendants who rely on
sec 42(1)
, since for both the key element is a
‘
reasonable
suspicion’
of
the Schedule 1 offence having been committed. The sections read
respectively as follows:
‘
40.
Arrest by peace officer without warrant
(1)
A peace officer may without warrant
arrest any person-
…
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody.
42.
Arrest by private person without arrest
(1)
Any private person may without warrant arrest any person –
(a)
who
commits or attempts to commit in his presence or whom he reasonably
suspects of having committed an offence referred to in Schedule
1.’
It
is common cause that theft is one of the offences referred to in
Schedule 1.
[56]
There
are many cases dealing with the circumstances in which police
officials may rely on the provisions of
sec 40(1)(b)
but less so
regarding the circumstances in which members of the public may rely
on the provisions of
sec 42(1)(a)
, often concerned with the species
of theft commonly referred to as shoplifting.
[57]
One
such latter case is
Damon
v Greatermans Store Ltd and Another
.
[7]
In that matter, the Court discussed the requirements for a party
relying on
sec 42(1)(a)
and also the effect of
sec 51
of the
Criminal
Procedure Act which
provides that a person arrested without a warrant
must as soon as possible be brought to a police station. The Court
held that
where a person has been lawfully arrested in terms of
sec
42(1)(a)
, such person must as soon as possible be brought to a police
station failing which the person detaining the arrested person makes

himself liable to an action for wrongful imprisonment.
[58]
A
question which the Court faced, was whether that provision entitles a
security officer or other employee of a store, when making
an arrest,
to take the person suspected of theft and arrested back into the
store to be questioned about the suspected theft. The
Court held that
in the case of suspected shoplifting, it is not practicable to arrest
the suspected person until he has left the
premises without paying
for items which he has taken; further, it will not be practicable for
the person in charge of security
to decide whether a charge should be
made unless a subordinate or other employees are entitled to take an
arrested person back
to the premises before he is handed over to the
police. The Court stated as follows:
[8]
‘
What
is of considerable importance is that it is in the interest of an
arrested person himself that he should not be charged without
being
given an opportunity of offering any explanation or making any
representation to a responsible officer. It is to his own
advantage
that this opportunity should be given in the privacy of an office
with the minimum possible number of persons present.
If all these
steps are therefore taken with reasonable expedition and an arrested
person is only thereafter brought to a police
station, it cannot be
contended that he was not brought to a police station as soon as
possible within the meaning of the phrase
in the section’.
[59]
That
reasoning in
Duncan
was followed and quoted with approval in a similar manner,
Susman
v Mr Price Ltd
,
[9]
where Saldulker J dealt with a claim for damages for
inter
alia
unlawful detention in circumstances where the plaintiff was detained
by store staff on suspicion of having stolen the shoes that
she was
wearing. The plaintiff was asked to produce a receipt for the shoes
but did not, explaining that she had purchased them
at another of the
defendant’s branches the previous day. It was common cause that
the plaintiff remained at the store for
at least two hours until her
husband arrived with the till slip. The police were not called and no
prosecution followed. There
was a dispute as to whether the plaintiff
was held against her will during the period in question or whether
she was told that
she could leave the store but did not, remaining
there while she waited for her husband to bring the proof of
purchase. The Court
found thus that the plaintiff had failed to
establish with cogent evidence that she was unlawfully and wrongfully
detained in the
store. It stated as follows in general:
‘
A
store owner cannot be prevented from carrying out an investigation at
his store. If he suspects a customer of theft or shoplifting
it would
be reasonable for him to approach such a customer inside the store or
at the exit and to request from the customer, as
in this case, to
produce proof of purchase for the item that is in the possession of
the customer which bears the store owner’s
price tag. To make
such enquiries would be lawful, and to make the enquiries at a
convenient place in the privacy of its offices
in the store would be
reasonable and justified. Such conduct by a store owner would not be
tantamount to unlawfully detaining the
customer. In this way
customers would be given an opportunity to prove their innocence and
to pay for the item in their possession,
if it has not already been
paid for, whilst they are still inside the store or they can produce
the proof of purchase at the door’.
[60]
Turning
to the role of the police when relying on
sec 40(1)(b)
, the following
was said in
Mabona
and Another v Minister of Law and Order
:
[10]
‘
The
test of whether a suspicion is reasonably entertained within the
meaning of sec 40(1)(b) of the Criminal Procedure Act 51 of
1977is
objective: would a reasonable man in the particular defendant’s
(second
defendant’s)
position
and possessed of the same information have considered that there were
good and sufficient grounds for suspecting that the
plaintiffs were
guilty of the offence or offences for which he sought to arrest the
plaintiffs
(conspiracy
to commit robbery or possession of stolen property knowing it had
been stolen?)
It
seems that in evaluating his information a reasonable man would bear
in mind that the section authorises drastic police action.
It
authorises an arrest on the strength of a suspicion and without the
need to swear out a warrant, i.e. something which otherwise
would be
an invasion of private rights and personal liberty.
The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically and he will not accept
it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he will allow himself
to
entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be of sufficiently
high
quality and cogency to engender in him a conviction that the suspect
is in fact guilty. The section requires suspicion but
certainty.
However, the suspicion must be based upon solid grounds. Otherwise,
it will be flighty or arbitrary, and not a reasonable
suspicion
.’
[my
underlining]
[61]
I
pause to observe that there is no reason why the views quoted above
regarding the value of personal liberty and the concomitant

obligations on a would-be arrestor to critically analyse and assess
the quality of information upon which the suspicion which he/she

entertains is based, should not apply to lay persons who invoke the
provisions of
sec 42(1)(a)
of the
Criminal Procedure Act, regard
being had to the fact that the consequences for the arrested person
are equally drastic.
[62]
Coming
back to arrest by police officers, a leading Appellate Division case
dealing with the prerequisites for the validity of an
arrest without
a warrant was
Duncan
v Minister of Law and Order
.
[11]
The Court found it unnecessary to decide the question of the burden
of proof in regard to the existence or absence of reasonable
grounds
for suspicion but assumed in favour of the appellant that the onus
rested on the respondent (the arrestor). Van Heerden
JA set out the
so-called jurisdictional facts which must exist before the power
conferred by sec 40(1)(b) of the Act may be
invoked, namely:
1.
the arrestor must be a
peace officer;
2.
he/she must entertain a
suspicion;
3.
it must be a suspicion
that the arrestee committed an offence referred to in Schedule
1 to
the Act;
4.
the suspicion must rest on reasonable grounds.
[63]
The
Court also discussed the question of, how, once such requirements are
satisfied, the peace officer may exercise his discretion
as to
whether or not to exercise that power. It stated in this regard that
an exercise of that discretion would be clearly unlawful
if the
arrestor knowingly invoked the power to arrest for a purpose not
contemplated by the Legislator.
[64]
Duncan
was
discussed in the matter of
Minister
of Safety and Security v Sekhoto and another
[12]
where the Court was principally concerned with a series of cases in
the High Court in which it had been held that there was a fifth

jurisdictional fact, namely, that there must have been no less
invasive options available in order to bring the suspect before

court. It held that there was nothing in sec 40(1)(b) that could lead
to the conclusion that its words contained a hidden fifth

jurisdictional fact. It held that, once the required jurisdictional
facts were present, a discretion whether or not to arrest arose.

Peace officers were entitled to exercise this discretion as they saw
fit provided they stayed within the bounds of rationality.
This
standard was not breached because an officer exercised a discretion
in a manner other than that deemed optimal by the Court.
The standard
was not perfection, or even the optimum judged from the vantage of
hindsight, and, as long as the choice made fell
within the range of
rationality, the standard was not breached.
[13]
Harms DP stated inter alia as follows: ‘
whether
his decision on that question is rational naturally depends upon the
particular facts but it is clear that in cases of serious
crime –
and those listed in Schedule 1 are serious – not only because
the Legislature thought so, a peace officer could
seldom be
criticised for arresting a suspect for that purpose. On the other
hand there will be cases, particularly where the suspected
offence is
relatively trivial, where the circumstances are such that it would
clearly be irrational to arrest’
.
The Court found that the matter could be disposed of on a simple
basis that a proper exercise of the arresting officer’s

discretion was never an issue between the parties since it had not
been raised in the pleadings nor ventilated during the hearing.
This,
I should mention, is not the case in the present matter since,
although not specifically pleaded, the issue was fully ventilated
in
evidence and in argument.
[65]
Finally,
Lapane
v Minister of Police
[14]
also concerned a damages claim arising out of an unlawful arrest and
detention, and prosecution. In holding the Minister of Police
liable,
the Court found that the arresting officer had not considered the
reasonableness of the suspect’s explanation and
had not tried
to evaluate its authenticity. It found that the arresting officer had
failed to show that he had reasonable grounds
for suspicion
justifying arrest and had acted over-hastily and imprudently. In this
regard. it stated as follows: ‘
The
Case law is clear that, in arresting, it is not only the arresting
officer’s mindset and his objective he must also look
at the
explanations given by the arrestee. He must strike a balance between
the two’.
[15]
It quoted with approval from
Fose
v Minister of Safety and Security
[16]
where the Court held that there was a constitutional duty on the
police officers and public prosecutor(s) handling the case to

ascertain the reasons for any further detention of the suspect and
the prosecutor and to place such reasons or lack thereof before

Court.
Evaluation
of the evidence
[66]
In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
[17]
Nienaber JA stated as follows regarding the assessment of disputes
between factual witnesses:
‘
[5]
The technique generally employed by courts in resolving factual
disputes of this nature may conveniently
be summarised as follows. To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the
various factual witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the courts
finding on the credibility of
a particular witness will depend upon
its impression about the veracity of the witness. ’
That in turn
will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as, - (i) the witness’s
candour
and demeanour in the witness-box; (ii) his bias, latent and
blatant; (iii) internal contradictions in his evidence; (iv) external

contradictions with what was pleaded or put on his behalf or with
established facts or with his own extracurial statements or actions;

(v) the probability or improbability of particular aspects of his
version; (vi) the calibre and cogency of his performance compared
to
that of other witnesses testifying about the same incident or events.
As to (b), a witness’s reliability will depend,
apart from the
factors mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the
event in question
and (ii) the quality, integrity and independence of his recall
thereof.  As to (c), this necessitates an
analysis and
evaluation of the probability or improbability of each party’s
version on each of the disputed issues.
In the light of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with
the onus of proof has
succeeded in discharging it.  The hard case, which will
doubtless be the rare one, occurs when a court’s
credibility
findings compel it in one direction and its evaluation of the general
probabilities in another.  The more convincing
the former, the
less convincing will be the latter. But when all factors are
equipoised probabilities prevail’.
[67]
Mrs
Emordi was by no means an entirely satisfactory or reliable witness.
She testified through an interpreter when all the indications
were
that she was fluent in English. She came across as rather dogmatic
and as tending to tailor her evidence to suit the exigencies
of the
moment. She often did not give straightforward answers, instead
offering longwinded replies and repeating her evidence time
after
time. There were improbabilities and contradictions in her evidence
and she also tended to exaggerate her evidence in order
to favour her
own case. Some examples will suffice. She testified that her husband
was detained in the security office but this
at best was an
exaggeration since he was free to leave at any stage. She testified
that neither she nor her husband had ever struck
any of the Shoprite
employees or security guards. I find this evidence unconvincing. Both
Mr Lebeta and Mr Canda testified that
both plaintiffs behaved in a
volatile manner and physically lashed out at security staff on
occasion. Mrs Emordi came across as
an emotional and somewhat fiery
person, an impression which seems to have been borne out by her
conduct on the day in question
after her detention.
[68]
Mrs
Emordi’s cross-examination based on a comparison of her
evidence with what she had told a psychologist, Ms Pam Tudin,
some
three months after the incident, revealed significant contradictions
of, or variations from her evidence in Court. To mention
some of the
more important discrepancies emerging from that report: Mrs Emordi
told Ms Tudin she had not obtained a Shoprite carrier
bag whereas in
her evidence she insisted she had; she told her she had the Shoprite
receipt when she was apprehended but in her
evidence said she had to
run and fetch it from the cashier; she spoke of being photographed in
the security office but made no
mention of this in her evidence; she
reported how a security guard had stepped on her child but again did
not testify about this
in her evidence; she spoke of the police
telling her at the police station that they knew she was innocent and
that they had only
arrested her to prevent a scene at Shoprite but
disavowed such evidence when she testified.
[69]
It
must be said, nonetheless, that much, indeed the core, of what is
recorded in Ms Tudin’s report as having emanated from
Mrs
Emordi was indeed the version which she recounted before Court,
namely, that she had bought oranges, potatoes and tomato paste
in
Parow Mark, discarded the receipt, proceeded to Shoprite and there
purchased yoghurt and three packets of noodles. She is also
recorded
as having explained how she begged to be allowed to go to Parow Mark
to fetch the receipt for the fruit and vegetables.
[70]
Mrs
Emordi’s evidence therefore can definitely not be accepted
wholesale but nor can it be simply rejected; rather it needs
to be
looked at critically in relation to other proven facts and the
probabilities.
[71]
The
other central witness, and whose version is in direct conflict with
Mrs Emordi, is Mr Lebeta. He also testified through an interpreter,

speaking Sotho. As a result, it was difficult to gain an impression
of his language and communication skills in any language other
than
Sotho but by his own account he spoke ‘
diluted’
English and Xhosa.  Mr Lebeta’s evidence falls very much
into two halves. He gave his evidence in chief in a very confident

and forthright manner creating a strong impression of someone who
clearly remembered the events of the day and who was able to
recount
them with precision and certainty. By the time his cross examination
had concluded, however, a very different picture had
emerged.
[72]
In
essence, Mr Lebeta’s evidence in chief was that he had noticed
the first plaintiff when she arrived at the store pushing
a pram
which had aroused his suspicion and as a result of which, he had
literally followed her around the store, never losing sight
of her
and had seen exactly what she had done. This included her taking
fruit and vegetables without paying for them as well as
removing the
juice and giving it to her child, later disposing of the empty
container in a fridge. He testified that Mrs Emordi
had walked
straight past the tills and had purchased or removed no other items
than those which I have just mentioned. To a lesser
or greater degree
all these elements were in doubt by the time Mr Lebeta concluded his
evidence. Firstly, Mrs Emordi insisted that
she had not come into the
store with a pram or a push chair and no other witness spoke of
seeing a pram or a push chair at any
time during Mrs Emordi’s
detention in the shop for a period of some two and a half hours.
Secondly, Mr Lebeta’s evidence
that he never lost sight of Mrs
Emordi and that she walked straight past the tills is irreconcilable
with objective evidence that
Mrs Emordi purchased the noodles and
yoghurt in Shoprite. The significance of this error cannot be
understated, particularly in
light of the certainty of Mr Lebeta’s
evidence, at least during his examination in chief.
[73]
By
the conclusion of his evidence, Mr Lebeta’s earlier certainty
had been replaced by a curious mixture of his conceding that
his
recollection of events was not that clear coupled with a stubborn
clinging to his earlier evidence. A few examples will suffice.
He was
asked by the Court whether if Mrs Emordi had bought groceries from
Shoprite would he have seen this and his answer was that
he ‘
could’
have seen it. He explained that when he went to the main door,
presumably in order to alert the security guard, he might have missed

something as Mrs Emordi was approaching the tills but then said that
this had been a period of only some five seconds. Reminded
that there
was objective evidence that she had bought yoghurt and noodles from
Shoprite his response was telling, namely that the
incident happened
‘
quite
some time ago so I can't, I don’t remember’
.
Pressed, Mr Lebeta then said it was not a case of him not having seen
her purchase those things but a case of him not remembering
this. The
follow-up question was how good his memory of the incident was if he
couldn’t remember Mrs Emordi selecting other
groceries and
paying for them, to which no satisfactory answer was forthcoming from
the witness. Mr Lebeta volunteered that what
made him remember the
incident was because it had been the main reason for him being
removed from the Parow store, particularly
in that Mrs Emordi and her
husband ‘
and
the family members wanted to assault me, because I was unsafe there’
.
Told that there was evidence that Mrs Emordi must have had a Parow
Mark bag, the witness insisted that she had not and continued
to
maintain that she had concealed items in a pram. Asked what effect
the incident had on him he replied that it did not sit well
at all
with him. He had to be escorted from the store that evening by a
security company and the crowd that had gathered outside
wanted to
attack the vehicle in which he was removed. Asked whether the entire
incident could have affected his memory, his reply
that he had been
scared but other than that had felt normal. Nonetheless, I consider
it quite possible that the emotionally charged
events of the day in
question and their consequences for Mr Lebeta may well have played a
negative role in his recollection of
the actual alleged shoplifting
incident.
[74]
Another
major factor impacting on Mr Lebeta’s credibility were the
previous statements he made. It appears very likely that
Mr Lebeta
made another much more detailed affidavit on or about 26 August 2016,
which was discovered by his employer, CIVA. Mr
Lebeta testified that
it was not his statement but it appears to bear his signature and,
absent an explanation from CIVA, the probabilities
strongly suggest
that it was indeed his statement. A reading of that statement gives
every indication that it was indeed made by
him and it reveals
discrepancies with his
viva
voce
evidence. I regard as significant Mr Lebeta’s insistence that
the statement was a forgery which in no way emanated from him,
since
it demonstrated his penchant for stubbornly adhering to evidence even
when clearly shown to be untenable or unlikely.
[75]
There
are also questions regarding Mr Lebeta’s impartiality. His role
as the floorwalker made him the central figure in the
case against
Mrs Emordi and it was on the basis of his allegations that she was
arrested. By the time, he gave evidence five years
later it would
have been difficult for him to concede that he had been mistaken in
what he saw or that he had been instrumental
in an unwarranted arrest
or detention.
[76]
There
are thus serious difficulties in accepting Mr Lebeta’s version
of events. As mentioned, although he initially appears
to be an
impressive witness with a clear recollection of the relatively simple
tale that he told, under cross-examination his reliability
and his
credibility were seriously compromised. Although I did not gain the
clear impression that he was being deliberately untruthful
or trying
to mislead the Court, Mr Lebeta’s over-confident manner cannot
obscure the fact that he was essentially an unreliable
witness,
seemingly unaware of his own shortcomings in this regard. His
evidence must likewise be approached with caution and tested
against
objective evidence and the probabilities.
The
video footage evidence
[77]
This
brings me to the matter of the video evidence. Had it been preserved
it may well have resolved many of the disputes of fact
in this
matter. The reasons given for the video footage not being saved
reveal a lamentable state of affairs at Shoprite. It appears
that
between them, Shoprite and CIVA do not go to the trouble of
preserving allegedly incriminating video footage of alleged
shoplifters
even where they have been charged with theft. Instead,
Shoprite waits for the police to ask for the footage with a default
position
that footage is deleted after 30 days. The carelessness and
short-sightedness of this practice is to be deprecated.
[78]
The
absence of the video footage gives rise to a dilemma in that both Mr
Lebeta and Mrs Fourie referred to it repeatedly and in
effect sought
to use it to corroborate their own evidence. The question is what
weight is to be given to such evidence when the
video footage is not
only lost but was never viewed by Mrs Emordi. Mr Lebeta testified
that when he looked at the video footage
it confirmed in its entirety
his evidence of what Mrs Emordi did and did not do. Mrs Fourie
testified that the footage confirmed
Mr Lebeta’s account of Mrs
Emordi removing fruit and vegetables without having them weighed. She
stated, however, she could
not recall that it showed anything
relating to the Squish juice, explaining that the video cameras
focussed on certain ‘
hotspots’
of which the baby food section was not one. This incidentally casts
doubt on what Mr Lebeta testified he saw on the video footage.

Without the actual video footage or at the very least a clear and
contemporaneous account of what it showed, little weight can
be
attached to any such evidence. As was put to counsel in argument,
experience shows that video footage taken by security cameras
is
often grainy, shot from a distance and unclear. Different persons
looking at the same footage can arrive at different conclusions
as to
what it shows, since viewing footage can also involve a process of
drawing inferences or conclusions. In this regard, it
must be
remembered that Mrs Fourie was viewing the footage against the
background of Mr Lebeta having told her that Mrs Emordi
had removed
fruit and vegetables without weighing it or paying for it. It is
possible that Mrs Fourie saw the first plaintiff in
the fruit and
vegetables section, possibly even handling the produce but not
selecting any items, or she could have mistaken someone
else for Mrs
Emordi.
[79]
I
initially considered whether, from a policy point of view, any
reliance on the video footage by the witnesses should be completely

excluded bearing in mind that it had not been preserved nor seen (and
recollected) by any independent party including, most importantly,

Mrs Emordi. This, however, I consider to be too blunt an approach.
Evidence that something was allegedly seen on video footage
which is
no longer available can, I consider, be taken into account by a Court
depending on the circumstances, but recognising
that such evidence
cannot be meaningfully tested. In other words, the weight to be given
to such evidence will vary again depending
on the circumstances. In
the present circumstances, I consider that the weight to be given to
the video footage, to the extent
that it is relied on by Mr Lebeta
and Mrs Fourie, can be no more than marginal given that Shoprite
negligently failed to preserve
the footage, the fact it was not seen
by the party against whom it is invoked and its potentially ambiguous
nature.
Mr
Mfundo Canda
[80]
Mr
Canda was a diffident witness who gave his evidence somewhat
hesitantly. In evaluating Mr Canda’s evidence, two features

stood out. Firstly, he too did not have a very clear recollection of
what took place that day relating to Mrs Emordi and secondly,
he
appeared to have played no more than a supporting role to Mr Lebeta.
Overall, the impression I gained was that although he sincerely
tried
to give his best recollection, Mr Canda was a rather mediocre witness
with a limited recall of the day’s events.
Mrs
Fourie
[81]
Mrs
Fourie testified in a quiet and calm manner but her evidence
implicating Mrs Emordi in shoplifting was to a large extent reliant

on the version given to her by Mr Lebeta. Her evidence of seeing the
video footage has very limited weight for the reasons already
given.
Mrs Fourie testified that she saw the plaintiff take the fruit and
vegetables on the video footage. Even on its own terms,
there are
difficulties with this evidence. Firstly, it does not accord with the
objective evidence suggesting that on the probabilities
Mrs Emordi
did not take any potatoes or oranges from the Shoprite store;
secondly it is subject to the reservations I expressed
earlier,
namely, including that what a witness ‘
sees’
is often informed by a prior account of what the footage will show.
Mrs Fourie’s evidence was that she had extremely limited

interaction with Mrs Emordi in semi-chaotic circumstances. It appears
that her primary concern was the commotion caused by the
crowd of
people demanding Mrs Emordi’s release. Mrs Fourie stated
several times that the shoplifting incident was a minor
occurrence
and that she had other business that day and could not simply
concentrate on a shoplifting incident. This was reflected
in the
perfunctory manner she dealt with the entire incident. She conceded
that her memory could be faulty, pointing out that the
incident
happened five years previously. Overall, I consider Mrs Fourie to be
an honest witness but having a limited view of events
because of the
secondary role she played and her disinterest in the incident on the
day.
Sergeant
Nceba Khumbuza
[82]
There
was agreement virtually across the board that Sergeant Khumbuza was a
particularly poor witness with a very limited recall
of the events of
the day. The discrepancies between his evidence and that of other
witnesses were numerous. He testified that he
found Mrs Emordi
already handcuffed upon his arrival when all the other evidence
suggested that this was not the case. He stated
categorically that he
had not viewed the video footage of the incident when two other
witnesses said that the police had viewed
such footage. He testified
in chief that Mrs Emordi never gave him any explanation in response
to the allegation that she had stolen
items from the shop but
virtually in the same breath conceded that he had not asked her for
an explanation at any stage. He was
not able to recall whether there
was a crowd outside the store agitating for the plaintiff’s
release when this was something
that made a strong impression on
every other witness. He knew nothing about Mrs Emordi having bought
noodles and yoghurt at Shoprite.
Sergeant Khumbuza said he took Mr
Lebeta’s statement downstairs whereas two other primary
witnesses say it was taken upstairs
in the boardroom. He himself
agreed that his recollection of events was not good and in
cross-examination came to doubt much of
his own evidence in chief.
Overall, it is clear that where Sergeant Khumbuza’s evidence
conflicts with credible evidence
given by other witnesses the latter
is to be preferred.
Evaluation
of the evidence
[83]
A
major difficulty in determining the factual disputes in the evidence,
is that the two main figures, Mrs Emordi and Mr Lebeta,
were
unreliable witnesses. A useful starting point to resolving these
disputes is to identify what it is common cause and, in so
doing, to
use, as far as possible, objective or real evidence. Much of what
took place in the Shoprite store on the afternoon and
evening of 19
October 2015 is common cause but important parts thereof are the
subject of conflicting versions. A determination
of whether the first
plaintiff was unlawfully arrested and detained requires the Court to
establish, taking into account the credibility
of the various
witnesses and the probabilities, what happened that day. It is common
cause that Mrs Emordi was asked to accompany
the security guard and
the floorwalker to the security office shortly before she left the
store. The Shoprite till slip which she
produced relating to her
purchases that afternoon reflects the time of purchase as being
16h49. All the evidence suggests that
the police formally arrested
her at approximately 19h30 that evening. It thus safe to conclude
that Mrs Emordi was detained at
the store for slightly over two and a
half hours before being taken to Parow police cells pursuant to her
arrest by the police.
[84]
It
is also common cause that the first plaintiff was found with oranges
and potatoes in roller bags for which she could produce
no till slip.
Nor could she produce a till slip for the juice which, according to
her evidence, her child had brought into Shoprite
but which,
according to Mr Lebeta’s evidence, she had removed from a shelf
and not paid for it. Mrs Emordi stated that when
she was detained she
also had items which she had purchased from Shoprite, namely, a pack
of mini yoghurts and several packets
of noodles. She testified that
she also had with her a tin of Gilda tomato paste purchased from
Parow Mark.
[85]
All
of the defendants’ witnesses testified either that Mrs Emordi
had no items in her possession other than the fresh produce
or they
professed no knowledge of any other items. The issue is, however,
illuminated by objective evidence, namely, the copy of
the Shoprite
receipt which Mrs Emordi was able to produce (trial bundle 31). It
reflects a purchase of three packets of noodles
and a packet of mini
yoghurt for a total of R19.92 having been made at 16h49. There is
further evidence of these purchases in the
form of Mr Lebeta’s
initial statement to the police where he was recorded as saying ‘
she
proceeded to the till points and she paid the yoghurt and the other
stuff’
.
[86]
Mrs
Emordi insisted that she had purchased the fresh produce from Parow
Mark and at the trial produced a copy of a till slip purporting
to
confirm this fact. Her evidence that upon her release from custody
she had immediately gone to Parow Mark to obtain a copy of
the
receipt, was not seriously disputed by any of the defendants.
Furthermore, her evidence in this regard was, on its own terms,

convincing. She testified that even before the Parow Mark manager
would search for a copy of the receipt on the system he or she
first
satisfied himself on their CCTV footage that Mrs Emordi had been in
the shop at the time and on the day in question. Thereafter,
the
receipt (trial bundle 29) was produced. It reflects that at 16h27 on
19 October 2015 someone had purchased items to the value
of R20.40
from Parow Mark comprising a tin of Gilda tomato paste (R5.95),
potatoes (R10.59) and oranges (R3.94) totalling R20.40.
It is
noticeable that the values of the oranges and potatoes purchased were
much the same as those allegedly stolen by Mrs Emordi
from Parow
Shoprite (R3.94 versus R4.61 and R9.30 versus R10.59). Mrs Emordi was
able to explain a voiding transaction on the Parow
Mark receipt,
namely, that after the potatoes had first been weighed at the till
she had decided to purchase fewer, hence the deduction
of R2.27. She
testified, unchallenged, that at Parow Mark fresh produce is weighed
at the main tills and hence any roller bags
which she used for such
produce at Parow Mark would not have had a sticker reflecting its
price or weight. The time stamp on the
Parow Mark receipt is some 22
minutes before she purchased the items at Shoprite. This accords with
her evidence that it was a
walk of three to five minutes from Parow
Mark to Shoprite, bearing in mind that her daughter walked at a
toddler’s pace and
that she then went into the Shoprite store
to select various items before proceeding to the till. As mentioned,
Mrs Emordi’s
evidence that she purchased the items in question
from Parow Mark was not seriously disputed by any defendant.
Similarly, although
not formally or informally admitted, the till
slip’s authenticity was not disputed by any defendant. Somewhat
disconcerting
in this regard, however, was the tendency of the
defendants’ counsel, save for Mr Van Reenen on behalf of
Shoprite, to completely
disregard this vital piece of evidence in
argument.
[87]
Another
significant aspect of the Parow Mark receipt is that it revealed that
the purchaser had also purchased a carrier bag at
a cost of 60 cents.
This ties in with Mrs Emordi’s evidence that she left Parow
Mark with the items which she had purchased
in a Parow Mark carrier
bag. Her evidence went further inasmuch as she produced at trial what
she testified was the very same carrier
bag, Exhibit B, and to which
was still attached a faded Shoprite security seal in the form of a
piece of tape. That seal was identified
as a Shoprite seal by Mr
Canda. In my view, this evidence as a whole, strongly supports Mrs
Emordi’s evidence of having bought
potatoes and oranges from
Parow Mark some 22 minutes before making her purchases at Shoprite.
[88]
The
central issue in this matter is whether there was a reasonable
suspicion that Mrs Emordi stole the fresh produce and the juice
from
Shoprite. This issue is intertwined with the issue of what she
actually took or did in the store before she was apprehended
and in
this regard there are two conflicting versions which require
assessment: Mrs Emordi’s on the one hand and, on the
other,
that of Mr Lebeta, supported to a lesser or greater extent by the
evidence of Mrs Fourie and Mr Canda. Before deciding whether
Mrs
Emordi’s arrest and detention were justified, it is necessary
in my view to determine whether she stole the fruit and
vegetables
and, if not, whether she asked to be allowed to fetch a receipt of
Parow Mark. Answering these questions is a preliminary
step to
determining the primary issue of whether any defendant entertained a
reasonable suspicion that Mrs Emordi had stolen items.
[89]
Having
now established, on the probabilities, what items Mrs Emordi
purchased on the afternoon in question is a first step in determining

whether she stole items from the Shoprite store. In this latter
regard, we primarily have the evidence of Mr Lebeta and Mrs Fourie

on the one hand and that of Mrs Emordi on the other. Mrs Emordi
insisted that she had brought the oranges and potatoes which she
had
bought at Parow Mark into the Shoprite store whilst Mr Lebeta,
supported to a limited extent by the evidence of Mrs Fourie,

testified that she took potatoes and oranges from the fruit and
vegetables section, placed them in roller bags and proceeded to
leave
the store without paying for them.
[90]
There
are significant problems with the version given by Mr Lebeta. Its
starting point is that he was suspicious of Mrs Emordi from
the
outset when she entered the store pushing a pram, according to him
often the modus operandi of shoplifters. There was no evidence
at all
to support Mr Lebeta’s version that Mrs Emordi was pushing a
pram, an allegation she strongly denied. Mr Canda gave
no such
evidence and nor did Mrs Fourie. In the brief statement made to the
police on the night of the arrest, Mr Lebeta makes
no mention of
Mrs Emordi pushing a pram. In his August 2016 statement, he talks of
seeing Mrs Emordi with a baby in her arms i.e.
making no mention of a
pram. On the probabilities, I find Mrs Emordi simply brought in her
child without any pram or push chair.
When testifying, initially at
least, Mr Lebeta denied that Mrs Emordi made any purchases at all in
Shoprite. In his police statement,
however, he said that she then
proceeded to the till point ‘
and
she paid the yoghurt and the other stuff’
– a clear contradiction of his evidence before Court. As I have
found, Mrs Emordi clearly bought the items from Shoprite
reflected on
its till slip. These aspects calls into serious doubt Mr Lebeta’s
powers of observation or recollection
since they were important
elements of his version, namely, the pram and Mrs Emordi’s
failure to purchase any items at all.
They also call into question Mr
Lebeta’s evidence that he observed her throughout whilst she
was in the store since, if he
had, he would have seen her select the
yoghurt and noodles and pay for them at a till.
[91]
Neither
Mr Lebeta, Mr Canda nor Mrs Fourie were prepared to concede that Mrs
Emordi brought a Parow Mark bag into the store carrying
potatoes,
oranges and a can of tomato paste. This however was her evidence and
she never deviated from it. I have already found
that she purchased
these items from Parow Mark nearly 20 minutes before and also a Parow
Mark carrier bag. On the overwhelming
probabilities, she brought
those items into the store in the same Parow Mark bag. Mrs Emordi
testified that when she entered the
store that very bag was sealed by
a security guard. The exhibit Parow Mark carrier bag, Exhibit B,
which she produced had such
a seal on it. In my view on the
probabilities, she indeed brought that bag into the store after
having it sealed.
[92]
Mr
Lebeta insisted throughout that he observed Mrs Emordi take oranges
and potatoes from the fruit and vegetables section, place
them in
roller bags and leave without paying for them. On the objective and
accepted evidence, this is improbable. There was nothing
on, or
about, the roller bags to indicate that they were taken from the
Shoprite store. Mrs Emordi’s evidence was that one
purchases
fruit and vegetables from Parow Mark by placing it in similar roller
bags but that these bags were not marked at that
store with price
stickers (as opposed to the practice in Shoprite), which thus ties in
with her evidence of what was found in her
possession in the Shoprite
store. The question one needs must ask is why would Mrs Emordi steal
or attempt to steal items from
Shoprite (potatoes and oranges) when
she had just purchased them from Parow Mark. It is noteworthy that at
Parow Mark she bought
R10.95 worth of potatoes and R3.94 worth of
oranges. When compared with the Shoprite training mode till slip used
by Mr Lebeta
to value these items, the values of the potatoes and
oranges were very similar to those on the Parow Mark till slip. This
supports
the notion that what he had weighed and priced were the very
potatoes and oranges which Mrs Emordi had already bought from Parow

Mark and brought into Shoprite.
[93]
Having
regard to this evidence as a whole it seems most unlikely that Mrs
Emordi stole or attempted to steal fruit and vegetables
from Shoprite
and Mr Lebeta’s evidence to this effect must be rejected as
false or mistaken. His evidence and that of Mrs
Fourie, that this is
what was visible on the video footage cannot be accepted. That
evidence can carry little if any weight for
the reasons I have given.
[94]
Mrs
Emordi testified that she purchased a Shoprite bag and placed her
purchases from that store in it. On the probabilities, it
is doubtful
whether this was so since the till slip reveals no proof of purchase
of a Shoprite carrier bag. What may well have
happened, and which is
supported by the probabilities, is that she placed her purchases from
Shoprite in the Parow Mark carrier
bag, in the process probably
breaking the seal to do so. When she was apprehended by Mr Lebeta and
store’s security guard/s
she would have had a Parow Mark
carrier bag and, inside it, yoghurt, noodles, a tin of tomato paste
and the potatoes and oranges
in roller bags. According to Mrs
Emordi’s evidence, she was eventually able to obtain the
Shoprite receipt by dashing back
to the Shoprite cashier and
obtaining it there. This latter fact was disputed both by Mr Lebeta
and Mr Canda who stated that once
she was in the security room she
was not allowed to leave. Whatever the case may be, one way or the
other she must have produced
the Shoprite receipt, firstly because
she was able to produce a copy in evidence and, secondly, because if
she had not produced
that receipt to Shoprite staff then she would
have been charged with theft of the yoghurt and the noodles, which
did not occur.
[95]
Looking
at the picture as a whole what may well have happened is that when
the contents of Mrs Emordi’s Parow Mark shopping
bag were
examined, apart from the items purchased from Shoprite (yoghurt and
noodles), a can of tomato paste and the potatoes and
oranges,
unpriced and unweighed and in roller bags, were found and Mrs Emordi
could produce no till slip for such items. It was
then incorrectly
assumed that she had stolen the fruit and vegetables from Shoprite.
Mrs Emordi was not charged with theft
of the tomato paste because
Shoprite staff must have realised that the store did not stock that
particular product. It was in fact
Mrs Emordi’s evidence that,
that particular tomato paste, her preferred choice, was not stocked
by Shoprite. Based principally
on Mr Lebeta’s allegations
however, Mrs Emordi was treated as having stolen the fruit and
vegetables as well as the Squish
juice from the Shoprite store.
[96]
I
have found that, on the probabilities, Mrs Emordi entered Shoprite
with potatoes and oranges in roller bags and did not steal
these
items from Shoprite. A more difficult question is the provenance of
the Squish juice. It is common cause that Mrs Emordi’s
daughter
had such juice in her hand whilst she was in the Shoprite store that
day. In Mrs Emordi’s account, she had it and
gave it to the
child at home on the day in question and her child still had it when
she entered Shoprite. On Mr Lebeta’s
version, he saw Mrs Emordi
take the juice from a shelf in Shoprite, give it to her child and
then dispose of the empty container
before leaving the store. Unlike
the potatoes and oranges there is no till slip which tilts the
probabilities in favour of Mrs
Emordi’s version. According to
Mr Lebeta, he salvaged the juice container and used it to produce the
training mode till slip.
Other evidence was that if the juice had
been bought anywhere else than at a Shoprite outlet it would not have
registered on the
training mode slip. This is not conclusive proof of
its theft, however, since Mrs Emordi could have purchased the juice
from that
Shoprite at another time or from another Shoprite store.
[97]
There
are difficulties both with Mr Lebeta’s version and that of Mrs
Emordi regarding the juice. As previously mentioned,
Mr Lebeta’s
evidence that the theft of the juice was recorded on the video
footage was contradicted by Mrs Fourie’s
evidence who said that
she saw nothing on the footage relating to a juice and that the store
cameras do not cover that particular
aisle. In his two statements, Mr
Lebeta reversed the sequence in which Mrs Emordi allegedly stole the
juice and the fresh produce.
Mr Canda’s evidence was that Mr
Lebeta asked Mrs Emordi where the empty juice container was, but this
was denied by Mr Lebeta.
Mrs Emordi testified that the juice was
marked with some sort of seal by the same security guard who sealed
the Parow Mark bag
when she entered the store. However, she only made
mention of any seal being placed on the juice in cross-examination.
That evidence
raises the question why any seal was not identified by
any security guard or by Mr Lebeta when handling the juice container.
When
questioned about this, Mrs Emordi’s answers were confused
and unsatisfactory.
[98]
Having
regard to all these factors, I am unable to find that the
probabilities favour one version of where the Squish juice came
from.
Mrs Emordi’s version that she brought it into the store is
problematic and relies solely upon her testimony. On the
other hand,
however, Mr Lebeta’s version of its theft is also problematic
and similarly relies solely upon his testimony.
Neither Mrs Emordi
nor Mr Lebeta were witnesses whose evidence can safely be accepted
where it is unsupported by other credible
evidence or by the
probabilities. In the result, the issue must be determined on the
basis of the incidence of the onus which in
in this instance rests
upon the defendant. I find then that the defendants failed to prove
that Mrs Emordi stole the juice from
the store. However, even if I am
wrong in so finding I do not believe that this affects the overall
outcome of the matter for reasons
which will become apparent.
[99]
The
next issue to be determined is whether, as Mrs Emordi testified, she
pleaded to be allowed to go and get the Parow Mark receipt
from that
store. Here again there is a dispute between her evidence and that of
Mr Lebeta.  In my view, on the probabilities
Mrs Emordi would
have made such a request for the reasons that follow. As I have
found, she had just purchased these items from
Parow Mark and on
being apprehended would have realised that she was in trouble, being
accused of theft of these items from Shoprite.
In those
circumstances, the natural thing would be for her to explain that she
had bought the items from Parow Mark and ask to
be allowed to fetch
the receipt. Mrs Emordi gave quite detailed evidence of how she even
offered to leave her child at Shoprite
whilst she fetched the receipt
and, when this request was refused, how she requested that she be
accompanied by a security guard
or guards to Parow Mark which was
only a short distance away. Support for Mrs Emordi’s evidence
is to be found in Mr Canda’s
evidence. Asked by Mrs Emordi’s
counsel whether he ever heard her say that she got the potatoes and
oranges at Parow Mark,
his reply was that she had said this in the
security office. This was a significant piece of evidence, coming
from a witness who
was not in Mrs Emordi’s camp.
[100]
On
the probabilities, I find that Mrs Emordi bought oranges and potatoes
from the Parow Mark store and brought them into the Shoprite
store,
10 to 15 minutes later in roller bags, contained in a Parow Mark
carrier bag. That bag was sealed but after purchasing yoghurt
and
noodles, she probably broke the seal and placed those items into the
Parow Mark bag. When she was apprehended by Mr Canda and
Mr Lebeta
there was no price sticker on either roller bag and nor did Mrs
Emordi have any receipt to account for them. She then
pleaded, to no
avail, to be allowed to fetch the receipt for the fresh produce from
Parow Mark. As far as the Squish juice is concerned,
it is not
possible to determine whether on the probabilities this was indeed
stolen or taken by Mrs Emordi from a shelf in the
shop and not paid
for as described by Mr Lebeta, or whether she brought it into the
shop as she testified.
[101]
This
brings me to the core question of whether the defendants ‘
reasonably
suspected’
Mrs
Emordi of having committed the offence of theft. The starting point
of the enquiry is Mr Lebeta’s evidence that he observed
Mrs
Emordi place the fresh produce items in roller bags and leave the
Shoprite store without paying for them or the juice and that
when
asked for a till slip evidencing their purchase, she was unable to do
so. I have found, on the probabilities, that the fruit
and vegetables
were purchased by Mrs Emordi from Parow Mark and that the position is
unclear as to whether she attempted to steal
the juice from the
Shoprite store. It follows that Mr Lebeta’s evidence in regard
to the fresh produce having been stolen
was either mistaken or
fabricated. If the evidence was fabricated it could never found a
reasonable suspicion of theft or attempted
theft. If that evidence
was, however, only mistaken this does still not assist Mr Lebeta, or
Mr Canda for that matter, since critically,
any suspicion of theft
could have been dispelled by giving Mrs Emordi an opportunity to show
that she had not stolen the items.
According to Mrs Emordi she
explained to those who apprehended her that she bought the fruit and
vegetables items from Parow Mark
but had left the slip there; further
that she asked to be allowed to go to Parow Mark and retrieve the
till slip (or perhaps a
duplicate or other proof of purchase). As I
have indicated, I accept her evidence on this aspect. In my view,
furthermore, Mrs
Emordi’s request was entirely reasonable. Her
evidence that Parow Mark was only a few minutes’ walk away was
not disputed
and it would have been a matter of ease for a security
guard (or Mr Lebeta) to have accompanied her to Parow Mark to allow
her
to retrieve the till slip, or even simply get a cashier’s
confirmation that she had made the purchases, and thereby prove
her
innocence. It is noteworthy that Mrs Emordi’s even offered to
leave her infant child behind. At the very least her plea
to be
permitted to go back to Parow Mark, together with the fact that she
had a Parow Mark bag containing the tomato paste which
Shoprite did
not stock should have brought home to Mr Lebeta and the security
guards that Mrs Emordi’s explanation and request
could not
simply be dismissed out of hand.
[102]
It
is common cause that Mrs Emordi was not free to leave the Shoprite
store from the time that she was approached by Mr Lebeta and
the
security guards and asked to go to the security office. In keeping
with the approach in
Olivier,
Susman
and the
Damon
cases, Shoprite (and its contractors) were entitled an opportunity to
investigate the basis for their suspicion of theft. However,
even by
their own protocols, this should have involved taking Mrs Emordi to a
place of privacy, such as the boardroom referred
to, or Mrs Fourie’s
office, in order to explain to her the basis of their suspicions and
afford her an opportunity to respond
thereto. Furthermore, Mrs Emordi
and her husband’s request to view the video footage which
allegedly implicated her should,
in my view, have been acceded to.
However, none of this was done, and what action those defendants took
seems in my view to fall
well below what could reasonably be expected
of a storekeeper and security officials in their position.
[103]
Mr
Lebeta’s enquiries of and/or discussion with Mrs Emordi was
superficial and unsatisfactory. It must be borne in mind that
Mr
Lebeta was a floorwalker, apparently untrained in enquiries or
interactions with customers suspected of shoplifting. He also
had
communication difficulties, the only language in which he was fluent
being Sotho. It seems Mr Lebeta simply asked Mrs Emordi
for the slip
and when she could not produce this he reported to Mrs Fourie that a
person had taken items and could produce no till
slip for them. Even
his evidence in this regard is questionable since it is clear that
Mrs Emordi had purchased certain items from
Shoprite, namely the
yoghurt and the noodles, had paid for them and that the till slip had
been produced. Yet Mr Lebeta’s
evidence was that he had not
even seen the noodles and the yoghurt, let alone the till slip. If he
had enquired more carefully
it would have become evident to him that
Mrs Emordi had not simply walked past the tills. Then there is the
matter of the Parow
Mark bag. I have found that, when stopped, Mrs
Emordi was in possession of Parow Mark bag and which had a Shoprite
seal on it.
This alone should have alerted Mr Lebeta or the security
guards to the distinct possibility that she could have purchased some
or all of the items, which she was suspected of having stolen from
Parow Mark. In turn this would have lent weight to her request
to be
allowed to retrieve the till slip from Parow Mark. None of this
appeared to feature in Mr Lebeta’s thinking or that
of the
security guards. He simply reported his suspicions (or allegations)
to Mrs Fourie. Unfortunately, this did not result in
a more careful
consideration of the matter by her either.
[104]
Mrs
Fourie’s interaction with Mrs Emordi was very limited to say
the least and took place in the security office where the

circumstances were far from ideal. That office or space opened,
through a mesh gate, onto a public thoroughfare and it appears
that a
crowd comprising people of Nigerian origin gathered there noisily
demanding Mrs Emordi’s release. It was in these
circumstances,
Mrs Fourie testified, that she asked Mrs Emordi ‘
what
was going on?’
and did not receive an answer. This intervention or general question
could hardly substitute for Mrs Fourie taking Mrs Emordi to
an office
or private space and holding a discussion with her in order to assess
any suspicion of theft in the light of Mrs Emordi’s

explanation. A further major shortcoming in the manner in which the
matter was dealt with was the failure to allow Mrs Emordi to
view the
video footage which, would have afforded her an opportunity to
correct any incorrect impression it may have created. Nor,
it seems,
did Mrs Fourie, or anyone for that matter, meaningfully interact with
Mrs Emordi’s husband, who also requested
to view the video
footage.
[105]
Importantly,
such dignified and interactive treatment of a suspected shoplifter is
precisely what CIVA/Shoprite’s own protocol
provided for when
dealing with the arrest of a person with a child, namely, that such
persons are taken to the manager’s
office (who is to be
informed immediately); such person/s must be out of sight of the
public and asked if they have a medical condition
that needs
immediate medical attention. This was not done. Instead, Mrs Emordi
and her infant child were kept in an open area for
some two and a
half hours in full visibility of staff coming and going from the
security office and the crowd of persons at the
gate calling for her
release. The manner in which Shoprite, and the security guards
employed by FBS, treated Mrs Emordi constituted
a breach of her right
to personal liberty and fell well short of the standards set
inter
alia
in
Oliver,
Susman
and
Damon
referred
to earlier.
[106]
Essentially,
Mrs Fourie relied on no more than Mr Lebeta’s allegations that
he had seen Mrs Emordi take the items in question,
her own viewing of
the video footage and her addressing a perfunctory query remark to
Mrs Emordi. The video footage is of little
assistance to Shoprite for
the reasons already discussed. Mr Lebeta’s observations were,
at the least, inaccurate, and his
enquiry, virtually non-existent. In
the absence of a proper conversation with Mrs Emordi, and given the
superficiality of her own
investigation of the facts, Mrs Fourie was
not even aware that Mrs Emordi claimed to be able to produce a
receipt for the fresh
produce (if allowed to go back to Parow Mark)
and also claimed to have brought the juice into the store. It was Mrs
Fourie who
took the key decision to call the police. From this point
on Mrs Emordi’s detention was no longer for the purpose of
enquiries
or investigation. It follows that if the basis for Mrs
Fourie’s suspicions of theft was not reasonable at that stage,
Mrs
Emordi’s detention from that point on was not lawful.
[107]
In
my view, by that stage Mrs Fourie’s suspicions were not
reasonable, principally because they had not been properly assessed.

Furthermore, the manner in which the suspicion of theft on the part
of Mrs Emordi was evaluated fell well short of the standard
required
of a reasonable person in the position of the first, second and third
defendants, as set out
inter
alia
in
Mabona
and
Lapane
referred to above. Had Mrs Emordi been timeously afforded a proper
opportunity to offer an explanation it is likely that she would
have
been able to show that she had purchased the fruit and vegetables
from Parow Mark or that she should at least be given a chance
to
prove this. This would, at worst for Mrs Emordi, have left Mrs Fourie
with a suspicion that Mrs Emordi had taken the juice without
paying
for it but without any video footage confirming or supporting the
suspicion. It is speculative to consider what might have
followed had
the matter of the fruit and vegetables been cleared up leaving only
the suspicion of the theft of the juice and this
is a materially
different case to the one made by Shoprite. Mrs Fourie’s
evidence was that in such circumstances the person
involved is
offered an opportunity to pay for the items. Whatever the case I
regard it as highly unlikely that Mrs Fourie would
have laid a charge
of theft against Mrs Emordi in those circumstances or summonsed the
police. In the circumstances, it seems probable
that, had there been
a proper scrutiny of the allegations of theft involving Mrs Emordi
she would not have been detained pending
the arrival of the police. I
therefore conclude that for the period between Mrs Fourie’s
decision to call the police and
Mrs Emordi’s arrest by the
police she was unlawfully detained. Given the superficiality of the
enquiries made, as well as
Sergeant’s Khumbuza’s evidence
of receiving the complaint when he came on duty at 17h45, that
decision must have been
taken by 17h30.
[108]
The
individual liability of the first, second and fourth defendants for
Mrs Emordi’s unlawful detention must also be determined.
[109]
On
behalf of both Shoprite and CIVA it was contended as an alternative
defence that since its employees had not physically apprehended
or
detained Mrs Emordi they could not be held liable for any unlawful
arrest or detention; further that only FBS could be held
liable in
its capacity as the employer of the security guards who physically
ensured that Mrs Emordi did not leave the premises
until the police
arrived. This argument does not assist Shoprite. Although Mr Lebeta
was the guiding force behind the initial decision
to detain the
plaintiff, it was Mrs Fourie who, after a perfunctory enquiry,
ultimately decided to call the police and, by clear
implication,
require that the plaintiff be detained pending their arrival. The
role of the security guards employed by FBS in effecting
Mrs Emordi’s
detention is inarguable but after Mrs Fourie’s decision to call
the police they were in effect acting
on her instructions.
[110]
Accordingly,
on a proper analysis of the facts, Mrs Emordi was detained at the
behest of the first and second defendant between
approximately 16h50
until her arrest by the police at approximately 19h30. For the sake
of clarity, I do not regard the period
between 16h50 and 17h30 when
the police were called as amounting to unlawful detention but a
period during which the suspicion
of theft on the part of Mrs Emordi
was enquired into, unfortunately only superficially and without any
meaningful interaction with
her. It follows that, at the least, the
first and second defendants are liable for Mrs Emordi’s
unlawful detention between
17h30 and 19h30.
[111]
As
far as CIVA, the fourth defendant, is concerned, Mr Lebeta testified
that he had no authority to detain a suspected shoplifter
and had to
request the security guards to do so; furthermore that although it
was his employer’s protocol to call the police
in instances of
shoplifting this decision was not his to take but that of Mrs Fourie.
I did not understand the first or second
defendant to dispute this
evidence. In light of the requirement in law that only a party or
parties who effect an arrest and detention
(in the absence of a claim
for malicious arrest and detention) there is no basis to hold the
fourth defendant liable for Mrs Emordi’s
arrest and detention,
notwithstanding Mr Lebeta’s key role therein in. This finding
renders it unnecessary to consider, in
relation to the fourth
defendant, its alternative argument that any liability would cease
after Mrs Emordi’s arrest by the
police. That argument must be
considered, however, in relation to the first and second defendants
i.e. whether their liability
for any further detention of Mrs Emordi
ceased when the police arrested Mrs Emordi on the basis that this
constituted a
novus
interveniens actus
.
[112]
In
the present instance, it was not a foregone conclusion, once the
matter had been reported to the police, that Mrs Emordi would
be
arrested and detained. It was up to the police to take a decision as
to whether to arrest her and, even after her arrest, whether
to
detain Mrs Emordi or release her on warning or by other means ensure
she would attend court. Indeed, as is made clear in
Mabona,
Lapane
and
Sekhoto
,
it was incumbent upon the police officials seized with the matter to
conduct their own enquiry and firstly satisfy themselves
that there
was a reasonable suspicion that Mrs Emordi had stolen items and
thereafter, that arresting and detaining her would not
amount to an
irrational exercise of their discretion. However, in my view, once
the police took the decision to arrest and detain
Mrs Emordi whether
justified or not, any liability on the part of the first and second
defendants ceased since she was no longer
being deprived of her
liberty at their instance but at that of the police. This would also
be in keeping with the approach of the
Supreme Court of Appeal in
Relyant
Trading
where it was held that, generally speaking, where a party merely
furnishes the police with information on the strength of which
they
decide to arrest such person, the arrest is effected by the police
and not the complainant.
[113]
The
next issue is whether the Minister is liable for her unlawful
detention from the point at which they arrested and detained her.
The
Minister relies on sec 42(1)(b), cited above and which has been the
subject of numerous decisions of the Courts. The question
is, in the
first instance, whether a reasonable man in Sergeant Khumbuza’s
position, and possessed of the same information,
would have
considered that there were sufficient grounds for a reasonable
suspicion that Mrs Emordi had stolen items from Shoprite.
Sergeant
Khumbuza relied upon the information furnished to him by Mr Lebeta
and, possibly, on a viewing of the video footage.
[114]
As
mentioned, Sergeant Khumbuza was a poor witness with a very limited
independent recollection of events. He denied ever viewing
any video
footage notwithstanding the evidence of Mrs Fourie and Mr Lebeta that
the police had viewed such video footage. In any
event, that footage
would not have taken things much further for the reasons already
discussed. It would not have showed any theft
of a juice and is most
unlikely to have implicated Mrs Emordi in the theft of the oranges
and potatoes. Even accepting for argument’s
sake that Sergeant
Khumbuza did view the footage, he should at least have given Mrs
Emordi an opportunity to do so or at least
to respond to it. This was
not done.
[115]
However,
the greatest difficulty facing the Minister in discharging its onus
was Sergeant Khumbuza’s admission that he at
no stage spoke to
Mrs Emordi, evidence not disputed by any of the witnesses for the
other defendants. Had he conversed with her
it is highly likely that,
as she had done earlier, she would have protested her innocence and
advised him that she had bought the
potatoes and oranges at Parow
Mark, that she had left the till slip there and that she had
requested to be allowed to retrieve
it earlier but had been refused.
It is noteworthy that in the warning statement taken from her at the
police station a little later,
this is indeed what she stated ‘
I
did not steal anything. I bought the stuff by Parow Flea (sic)
Market’
.
Sergeant Khumbuza would also probably have been told by her that she
had brought the juice onto Shoprite’s premises.
It follows from
what I have stated that Sergeant Khumbuza’s handling of the
matter fell well short of the standard set for
persons in his
position as set out in
Mabona
and
Lapane.
[116]
Had
this basic step been taken i.e. the allegations of theft put to Mrs
Emordi and her response sought, it is unlikely that Sergeant

Khumbuza, or any reasonable person in his position, would have
nonetheless concluded that there was a reasonable suspicion that
Mrs
Emordi had stolen items from Shoprite requiring her to be arrested
and further detained. Rather, I consider, he would have
realised that
the suspicion of theft rested on very shaky foundations and therefore
was not reasonable. At the worst for Mrs Emordi,
he may have
entertained a reasonable suspicion that she might have stolen the
juice. In my view, even if this had been the case,
a reasonable
person in Sergeant Khumbuza’s shoes, acting rationally, would,
in such event, not have decided to arrest or
detain her when her
presence in court could be obtained by other means. Furthermore,
given Mrs Emordi’s explanation for her
possession of the juice
and the trivial amount involved, in my view, a decision to arrest and
detain her in such circumstances
would have fallen outside the bounds
of rationality as referral to in
Sekhoto
.
The third defendant sought to justify Mrs Emordi’s detention
for the night on the basis that only a senior officer could
authorise
her release on warning on bail and that her address had to be checked
or confirmed. In my view, neither of these justify
Mrs Emordi’s
detention overnight. Sergeant Khumbuza had adequate opportunity to
check her address, if he felt this was necessary
and no reason was
furnished why, even if she was initially arrested, an official with
the necessary authority had not released
her after she had been
‘
booked’
.
[117]
The
SAPS standing orders regarding arrests are instructive. Standing
Order (G) 341 provides inter alia as follows:
‘
Background
Arrest
constitutes one of the most drastic infringements of the rights of an
individual. The rules that have been laid down by the
Constitution of
the Republic of South Africa, 1996, the Criminal Procedure Act, 1977
(Act No. 51 of 1977), other legislation and
this Order, concerning
the circumstances when a person may be arrested and how such person
should be treated. Must therefor
(sic)
be
strictly adhered to.
3.
Securing the attendance of an accused at the trial by other means
than arrest
(1)
There are various methods by which an accused’s attendance at a
trial may be secured. Although arrest is one of these
methods, it
constitutes one of the most drastic infringements of the rights of an
individual and a member should therefore regard
it as a last resort.
(2)
It is impossible to lay down hard and fast rules regarding the manner
in which the attendance of an accused at a trial should
be secured.
Each case must be dealt with according to its own merits. A member
must always exercise his or her discretion in a
proper manner when
deciding whether a suspect must be arrested or rather be dealt with
as provided for in subparagraph (3).
(3)
A member even though authorised by law, should normally refrain from
arresting a person if -
(a)
the attendance of the person may be secured by means of a summons as
provided for in
section 54
of the
Criminal Procedure Act, 1977
; or
(b)
the member believes on reasonable grounds that a magistrate’s
court, on convicting
such person of that offence, will not impose a
fine exceeding the amount determined by the Minister from time to
time by notice
in the Government Gazette, in which such member may
hand to the accused a written notice [J 534] as a method of securing
his or
her attendance in the magistrate’s court in accordance
with
section 56
of the
Criminal Procedure Act, 1977
.
4.
The object of an arrest
(1)
General rule
As
a general rule, the object of an arrest is to secure the attendance
of such person at his or her trial. A member may not arrest
a person
in order to punish, scare, or harass such person;
(2)
Exceptions to the general rule
There
are circumstances where the law permits a member to arrest a person
although the purpose with the arrest is not solely to
take the person
to court. These circumstances are outlined below and constitute
exceptions to the general rule that the object
of an arrest must be
to secure the attendance of an accused at his or her trial. These
exceptions must be studied carefully and
members must take special
note of the requirements that must be complied with before an arrest
in those circumstances will be regarded
as lawful.
…
(b)
Arrest to verify a name and/or
address
In
the circumstances provided for in
section 41(1)
of the
Criminal
Procedure Act, 1977
, a member may request a person to furnish his or
her full name and address. If such a person furnishes a name or
address which
the member reasonably suspects to be false, such member
may arrest the person and detain him or her for a period of twelve
hours
in order to verify the name and address.’
[118]
Nothing
in these quoted sections, applied to the facts of the present matter,
suggest that Sergeant Khumbuza’s decision to
arrest Mrs Emordi,
as opposed to a less invasive means of procuring her attendance at
Court, was justified, nor any decision to
detain her overnight. In
this sense, Sergeant Khumbuza did not seek to justify Mrs Emordi’s
arrest by suggesting, for example,
that he had any reason to suspect
that her name or address (which he could have confirmed with her
husband, Mr Agholar) were false.
[119]
A
subsidiary issue is whether Janelle, the plaintiffs’ infant
child, was wrongfully and unlawfully detained at Shoprite’s

premises. The only evidence in this respect was that Janelle was with
her mother in the store and in the security office and that
she had
eventually been taken away by the second plaintiff when the police
arrived and instructed or requested him to take the
child home. As I
have found earlier in these proceedings, there was never an
impediment to Mr Agholar leaving the premises of Shoprite
and he was
there at all times of his own free will. It follows that he would
have been free to take his child away at any time
after his arrival
there but chose not to do so. Furthermore, on a proper interpretation
of what took place there was never any
intention or act of arresting
or detaining the child. It was the first plaintiff, Mrs Emordi, who
was detained, initially for the
purposes of an enquiry/investigation
and thereafter pending the arrival of the police. The fact that
Janelle remained with her
mother during this period was merely
incidental to the latter’s detention and a recognition that an
infant child could not
and should not be separated from the mother in
the absence of another acceptable arrangement. In the result, the
claim by the first
plaintiff on behalf of her child lacks any merit.
[120]
For
these reasons, I consider that the arrestors and detentors of the
plaintiff from approximately 19h30 onwards were the Minister’s

servants that such arrest and detention was unlawful and accordingly
that liability for any damages flowing from such arrest and
detention
cannot be visited on any defendant other than the third defendant.
[121]
In
the result, I conclude that the first and second defendants are
liable for the plaintiff’s unlawful arrest and detention
for
the period from 17h30 to approximately 19h30 on the day in question
and that the third defendant is liable for any damages
which the
plaintiff may prove for the period from approximately 19h30 until her
release the following day.
[122]
This
brings me to the final issue, namely, whether Shoprite is entitled to
an indemnity from the first and fourth defendants. The
basis of
Shoprite’s claim against the first and fourth defendants for an
indemnity lay in the written service agreements
concluded between the
parties in July 2011 and August 2012 respectively and which form part
of the trial bundle.
All
parties agreed that the documents forming part of the trial bundle
were what they purported to be and were not required to be
proved in
the normal manner. Both agreements were referred to in evidence and
in argument. Accordingly, they were properly before
Court.
[123]
In
each instance the indemnity clause is identical, the relevant part
reading as follows:
‘
17.
Indemnity
17.1
The Service Provider hereby irrevocably indemnifies Shoprite, its
directors and employees and holds them
harmless against any claim
which may be made against any one or all of them, the cause of action
of which arose out of or in connection
with any act or omission on
the part of the Service Provider or its personnel or any breach by
the Service Provider or its personnel
of any of the terms and
conditions contained herein, including breach of warranty.’
[124]
The
terms of the indemnity are wide, encompassing ‘
any
act or omission’
giving rise to the cause of action upon which the claim against
Shoprite is based. Mrs Emordi’s claim for unlawful arrest
and
detention arose primarily out of the actions of Mr Lebeta, who
initiated the allegations of theft against her, and the security

guards who effected her arrest and detention acting upon Mr Lebeta’s
advices. To the extent that Mrs Fourie was involved,
she relied to a
large extent on Mr Lebeta’s observations. Thus although Mrs
Fourie took the ultimate decision to call the
police, the employees
of both FBS and CIVA, through their employees, played a consequential
role in Mrs Emordi’s arrest and
detention. I do not consider
that the first and fourth defendants can escape the reach of the
indemnities simply by reason of the
fact that the second defendant’s
employee, Mrs Fourie, also bore responsibility for the first
plaintiff’s arrest and
detention. In the result I am satisfied
that the second defendant is entitled to the indemnities it claims
from the first and fourth
defendants.
Costs
[125]
Mrs
Emordi is plainly entitled to her costs against those defendants
against whom she has been successful, which excludes only the
fourth
defendant. Although unsuccessful against the fourth defendant, I see
no good reason why Mrs Emordi should be held liable
for its costs.
Its employee, Mr Lebeta, was the person who initiated her arrest and
detention in circumstances where this was ultimately
not justified.
Even if not cited by the first plaintiff, the fourth defendant would
in all likelihood still have been joined as
a third party to the
proceedings by the second defendant and, by reason of the indemnity
relief granted against it, is already
jointly and severally liable
for the first plaintiff’s cost vis-à-vis the second
defendant. The fourth defendant’s
citing by the plaintiffs has
therefore not resulted in any additional costs for it. Finally, as
regards the second plaintiff’s
claim where absolution was
granted but a costs order deferred, I can see no reason not to award
the defendants their costs in respect
of such claim.
[126]
In
the result and for these reasons the following order is made:
1.
It
is declared that the first and second defendants are jointly and
severally liable to the first plaintiff for any damages which
she may
prove arising out of her unlawful arrest and detention at Shoprite,
Parow on 19 October 2015 between 17h30 and 19h30;
2.
The
third respondent is declared to be liable for any damages which the
first plaintiff may prove as a result of her unlawful arrest
and
detention by the third defendant’s servants between 19h30 on 19
October 2015 and her release on 20 October 2015;
3.
The
first, second and third defendants shall pay the first plaintiff’s
costs of suit, jointly and severally, the one paying
the others to be
absolved;
4.
The
first and fourth defendants are held liable and directed to indemnify
the second defendant in respect of the award and costs
order made
against it in favour of the first plaintiff, as referred to in
paragraphs 1 and 3 above, jointly and severally, the
one paying the
other to be absolved, and are directed to pay the second defendant’s
costs in the third party proceedings;
5.
The
second plaintiff is ordered to pay the costs of the defendants
arising out of the dismissal of his claim.
BOZALEK
J
For
the Plaintiff

:           Adv R
Appoles
As
Instructed

Jonathen Cohen Attorneys
For
the 1
st
Defendant

:           Adv A
Montzinger
As
Instructed

Erasmus Ranchod & Associates
For
the 2
nd
Defendant

:           Adv D
Van Reenen
As
Instructed

Clyde & Co
For
the 3
rd
Defendant

:           Adv P
Van Wyk
As
Instructed

State Attorney
For
the 4
th
Defendant

:           Adv C
Tait
As
Instructed

M F Oosthuizen Attorneys
[1]
Vol 15, 3
rd
Ed, para 100.
[2]
[2007] 1 All
SA 375 (SCA).
[3]
Duncan v
Minister of Law and Order
1986 (2) SA 805 (A).
[4]
2008 (2) SACR
387 (WLD).
[5]
At page 393 G.
[6]
2016 JDR 1601 (GP).
[7]
1984 (4) SA 143 (WLD).
[8]
Page 149 B – D.
[9]
2011 JDR 0992 (GSJ).
[10]
1988 (2) SA
654 (SECLD).
[11]
1986 (2) 805 (AD).
[12]
2011 (5) SA
367 (SCA).
[13]
Paragraphs [28] and [39] at 379
D – E and 382 F.
[14]
2015 (2) SACR
138 (LT).
[15]
Para 24 page 142.
[16]
1997 (3) SA 786 (CC).
[17]
2003 (1) SA 11
(SCA).