Sithebe v Minister of Police (31236/2012) [2014] ZAGPJHC 201 (4 August 2014)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 201
|

|

Sithebe v Minister of Police (31236/2012) [2014] ZAGPJHC 201 (4 August 2014)

SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 31236/2012
DATE:
04 AUGUST 2014
In the matter
between:
SITHEBE,
BONGINKOSI
....................................
Plaintiff
And
MINISTER
OF POLICE
...................................
Defendant
J U D G
M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] This is an action by the plaintiff for damages against the
defendant arising out of an alleged unlawful arrest and detention,
in
the amount of R150 000, 00.
[2] The allegations are that the defendant’s employees, acting
within the cause and scope of their employment with the defendant,

unlawfully arrested the plaintiff at Emdeni Township, Soweto on 11
November 2011 and also unlawfully and unreasonably detained
him at
Jabulani Police Station in Jabulani, Soweto until 14 November 2011.
[3] The defendant is defending the action.
[4] Right at the on-set of the trial on 21 July 2014 both parties
agreed that the
onus
to lead evidence first and to prove rests
with the defendant.  Consequently, the defendant’s
witnesses testified first.
THE PARTIES
[5] The plaintiff, BONGINKOSI SITHEBE, is an adult male person
ordinarily resident at No 5……. Emdeni North, Z……

Street, Soweto, and Johannesburg.
[6]        The defendant, the MINISTER
OF POLICE, is the responsible Government Department dealing
among
others with issues relating to police services, personnel and related
aspects, cited herein in its official capacity as employer
of police
officers and head of the South African Police Force, whose head
office and/or principal place of business is situate
at 7
th
Floor, Wachthuis, 231 Pretorius Street, Pretoria.
ISSUES TO
BE DECIDED
[7]        It is common cause between
the parties herein that the plaintiff was arrested by the police

officials in the employ of the defendant while executing their
official duties with or for or on behalf of the defendant on 11

November 2011.  It is also common cause that he was detained or
kept in custody from the moment of his arrest on the evening
of 11
November 2011 until he was released on the afternoon of 14 November
2011 after a state prosecutor before whom the case docket
was
referred to prosecute, issued a
nolle prosequi
before he could
even appear in a court of law.
[8]        This Court must rule on
whether the arrest was lawful or unlawful, and if so, whether
or not
the plaintiff’s detention was justified or lawful.
[9]        Even though the defendant’s
witnesses were the first to testify in this trial, I
have decided, in
the relaying of the evidence led in court, to begin with what the
plaintiff’s witnesses testified on.
PLAINTIFF’S
VERSION
[10]      The plaintiff’s testimony was led
through two witnesses, namely, the plaintiff himself and
an
eye-witness to the robbery on the complainant, Ms Zanele Gumede.
BONGINKOSI
SITHEBE (
alias,
“
the
plaintiff
”
)
[11]      He is a 33 year old resident of Emdeni
Township, Soweto; single but with two children aged 4 and
5,
respectively, a boy and a girl.  He is responsible for the
upkeep and maintenance of the two minor children. As at the
date of
his arrest on 11 November 2011 he was employed on a seasonal
temporary basis as a general worker at a Fireworks outlet
at Jumbo
along Main Reef Road, next to China Town or Mall Johannesburg;
earning R80,00 per day. His highest scholastic achievement
is a
standard 9.
[12]      According to the plaintiff, on 11
November 2011 he had just returned home from his workplace and
was
relaxing on his bed in his shack situate within the erf of house 5……
Emdeni North when he heard someone knock
on the door. He went to the
door, opened it, at the same time inviting the knocker to come in.
[13]      He was surprised to see policemen
standing at the door.
[14]      He asked them if there was anything
wrong. Instead of answering him there and then, they called at
a
civilian male standing some few paces behind them to come forward.
The man did so. When they met face-to-face the man said
to the
police:  “
This is him
”.  Not
comprehending what the man meant by what he said this witness asked
him and the police why the man was saying
what he was saying; also
what all that meant.  The police told him he will be told all at
the police station.
[15]      When he insisted on knowing why he was
to accompany the police to the police station, the latter
told him
that he (witness) was Thami (his names) and he had allegedly robbed
the civilian male accompanying the police to his home,
on the morning
of 10 November 2011. This civilian male happens to have been the
complainant in the robbery case giving rise to
this suit.
[16]      The plaintiff told the police his names
were not Thami but Bonginkosi.  They demanded that he
produce
his identity document so that they could verify that. He gave them
his identity document and they scrutinised it.
[17]      After satisfying themselves that the
plaintiff was not the Thami they were looking for, one of the

policemen insisted that he (plaintiff) should nevertheless still be
taken into custody as a possibility existed that his ID-inscribed

name may be Bonginkosi yet be known around his area as Thami.
This, the policeman decided on in the face of opposition from
a
colleague of his who was urging him to leave the plaintiff alone as
the name of the culprit they were looking for differed from
that of
the plaintiff.
[18]      They then pushed him onto the bed and
forcibly handcuffed him with his hands at his back. Thereafter
they
dragged him out of the shack towards the street where the police vans
were.
[19]      Outside in the street there were three
police vans and a sedan next to which stood several other
policemen
who were ostensibly part of the contingent that came to arrest him.
Apart from those outside, the policemen who entered
his shack were
five in number. There were also above 15 to 25 members of the public
in the street witnessing the spectacle.
Among them was one,
Zanele Gumede, who was a Community Policing Forum (“
CPF
”)
member. It was also so, that there was a death in the street and
local women were there in numbers, helping with the peeling
of
vegetables in preparation for the funeral service the next day –
hence the many on-lookers.
[20]      As the policemen dragged the plaintiff
towards a police van – a process that made the handcuffs
bite
deeper and tighter into his wrists since they also pulled at them –
Zanele Gumede came forward and asked what was happening.
The
plaintiff told her he was being arrested in connection with a robbery
that took place nearby the previous day.
[21]      He was put at the back of the police
van.  The tarpaulin curtains that sometimes are unrolled
or
rolled down to cover the windows at the back of police vans were
rolled up.  As such Zanele Gumede (“
Zanele
”)
was able to continue her conversation with him from outside in the
street. Then Zanele went and spoke to the police, telling
them that
she was an eye-witness to the robbery that took place the previous
day where a man was robbed of a laptop in a case and
cellphones
nearby. She explicitly told the police that the plaintiff was not one
of the two robbers who committed the deed. She
further told them that
two young men, well known to her, by names, Gerald and Bata, were the
robbers and that Gerald occupies one
of the shacks in erf 5….
where the plaintiff also lives.
[22]      The police told Zanele that they were
taking the plaintiff to Naledi Police Station for questioning
and
they would bring him back.
[23]      According to the plaintiff he was taken
to Naledi Police Station where he was put in a small cage
or lock-up
secured by a padlock.
[24]      While in that cage or lock-up the
complainant arrived and demanded his laptop and cellphones from
him.
The plaintiff told him that he knew nothing about that robbery, let
alone the robbed goods. He also told him that he was the
father of
two small children who depended on him for sustenance and
maintenance.  A policeman then called the complainant
aside and
they sat down together compiling a statement.
[25]      He was frightened and became even
traumatised when the police told him that what he had been arrested

for was usually punishable with direct imprisonment ranging from 15
years and which could to up to 18 or 25 years.  He thought
about
his children and what would happen to them should he be imprisoned
for a crime he knew nothing about.
[26]      He started to develop hatred for the
police, associating them with vengeful and heartless people
who,
instead of being his protectors, were insistent on incarcerating him
in the face of eye-witness account of the real perpetrators
of the
crime he has been arrested for.
[27]      He was taken to Jabulani Police Station
where a document titled “
Notice of rights in terms of the
Constitution
” was filled in and handed to him to sign
without anything being explained to him or he being allowed to read
it before he
signed it. He was then booked in and allocated a cell.
[28]      This surprised and traumatised him more
since he was made to understand when he was arrested that
he was only
being taken in for questioning and would be returned home after that.
[29]      The night in the cell was a nightmare.
Throughout the night more people – some very drunk,
others
dirty and smelly – were brought into the cell. When he was
initially put in there, there were 10 to 11 of them.
At the end
of the night, they were 23 to 25 in a small cell – definitely
overcrowded as the cell could have been 10x5 metres
in size.
They had to share the sleeping mattresses or sponges given to them.
He was given one blanket that was very
dirty and smelling of urine.
[30]      There was one toilet for all of them
that offered no privacy at all because when one was seated there-at,

he was visible to the rest of the cellmates. It was not functioning
properly. Some of the drunk cellmates just literally relieved

themselves on the floor in full view of everyone.  There was
also no toilet paper supplied.
[31]      Some of the cellmates boasted to the
others of being experienced with prison life. They would tell
the
plaintiff and others that they must pray to God they are not sent to
a proper prison because there they would sodomise them
with
impunity.  That really heightened his anxiety and fear.
[32]      The food they were given was also
sub-standard and ill-cooked.  He forced himself to partake
in it
solely to remain alive.
[33]      Before he was taken to the cell on
Friday, 11 November 2011, he asked to be allowed the use of a

telephone to inform his people about his whereabouts or fate.
The police promised to comeback to him on that and never did.

On Monday, 14 November 2011 before he was taken to court he again
asked to be allowed a telephone use to notify his people about
his
appearance at court that day.  This time the police told him in
his face that he will not be allowed to do so.
[34]      On Saturday, 12 November 2011 one W/O
Makhubela came to see him : He told him that he was the assigned

investigating officer in this case. He left him and promptly returned
in the company of the complainant.  Noting the plaintiff’s

surprise at this turn of events, W/O Makhubela told him not to be
surprised as he wanted the complainant to see him or look at
him with
a view to confirming to him (W/O Makhubela) that he (plaintiff) was
indeed one of the people who robbed him.
[35]      Again the plaintiff told W/O Makhubela
that he knew nothing about the complainant’s robbery,
and that
he was seeing him for the first time when he came with the police to
his shack the day of his arrest.  W/O Makhubela
told him that
there was nothing he could do about what he was telling him.
[36]      He also told W/O Makhubela about the
eye-witnesses to the robbery on the complainant on 10 November
2011
as well as what Zanele told the police who came to arrest him. W/O
Makhubela retorted that he was not there when all what
the plaintiff
was saying was said or happened.  He advised W/O Makhubela to go
and interview the known eye-witnesses –
who according to
Zanele’s conversation with the police at the arrest site were
numerous – if he wanted to confirm his
story that he was a
wrongly arrested person.  W/O Makhubela responded to this by
telling him that he also has his own witnesses
who would testify in
court about his (plaintiff’s) participation in that robbery.
[37]      He took his fingerprints and told him
that he would be taken to court on Monday 14 November 2011.
[38]      On Monday 14 November 2011 he was
ordered to go take a bath as he was to be taken to court. He was
not
given any washing rag or soap.  He had to borrow one from a
fellow cellmate.  The water was ice-cold and uncomfortable.
[39]      He was then taken to the holding cells
at court together with other arrestees who were going to court.
[40]      Only at or around 15h00 was his names
called out.  He felt relieved as at last he would have
the
opportunity to tell a magistrate his story.
[41]      As he walked out of the holding cell,
W/O Makhubela was waiting for him outside it.  The latter
told
him that he was being taken to Protea Police Station where he would
be tortured to tell the truth.  He felt very frightened.

He realised he was helpless and at the mercy of the police. A thought
even passed through his mind that it was better to be dead
than to be
treated the way he was being treated.
[42]      He took him back to the police station.
There he saw his brother-in-law standing. He is the man who
has
married his sister.  Ostensibly he and Makhubela knew each other
judging from the manner in which they greeted and talked
to each
other. W/O Makhubela then wrote and stamped a document which he made
the plaintiff to sign. Thereafter he told the plaintiff
that he was
being released to go home, however, he should take note that should
further evidence come to light implicating him,
he (W/O Makhubela)
would come and re-arrest him.  He warned him not to flee the
area of his present abode.  The plaintiff
assured him that he
would do nothing of the sort.  He (W/O Makhubela) then drove the
plaintiff up to Naledi Police Station.
From there they walked
home.
[43]      According to the plaintiff, this whole
episode or tragedy has left him a mental wreck : Whenever
he sees
policemen or police vehicles he becomes fearful, fearing being
arrested again.  Even when he is at home, whenever
he hears a
car door slam outside in the street, he becomes traumatised, thinking
that W/O Makhubela’s threat of re-arresting
him was
materialising and he was just about to be arrested.
[44]      His arrest have also changed the
attitude of his own people towards him : As from the moment he
returned home after his release, they started looking at him with
fear and suspicion.   Some of them tell him directly
that
they are wont to believe that he might have been involved in the
robbery that caused his incarceration from Friday, 11 November
2011
until Monday, 14 November 2011.  This makes him feel very bad
and used. He imagines how his small children would react
the moment
they are told that their father was arrested and incarcerated for
armed robbery.  He imagines them playing with
other children in
the street and those other children telling them that they are the
children of an armed robber or a jail bird.
That thought to him
is too ghastly to contemplate.
[45]      The plaintiff’s arrest and
incarceration had other negative consequences : When he reported
at
his workplace in Johannesburg on Tuesday, 15 November 2011, he found
that somebody else had been hired in his place. He thus
became
totally unemployed from that day to date.
[46]      The plaintiff was subjected to lengthy
cross-examination. Although he gave long and rambling replies
to
questions, at the end of the cross-examination his story still
remained intact.
ZANELE
GUMEDE (“
ZANELE
”
)
[47]      She was the plaintiff’s second
and last witness.
[48]      According to her testimony, she resides
at 4………/… Emdeni, which residence
is in
the same street as the plaintiff’s.  She is still at
school at the moment but as on the date of the incident giving
rise
to these proceedings, she was also a member of the local CPF, having
been serving as such for two months. She knew the plaintiff.
[49]      Her evidence was to the effect that she
knocked off duty as CPF member at 06h00 on 10 November 2011.
Upon
arrival at her home she took off the work uniform and proceeded to
walk towards one Mbongeni’s home.  As she rounded
a corner
she saw two young men accosting an unknown young man and taking form
him a bag that usually carries laptop computers from
him.  Those
two young men ran with their loot in her direction and proceeded to
run past her.
[50]      At this stage she also saw Mbongeni
walking out of his yard onto the street holding a cup with coffee
or
tea in it.  He also commented about the robbery that had just
taken place.
[51]      They watched the two robbers run into
erf 508 Emdeni, which is where the plaintiff resides. Both
of them
knew the fleeing young men very well. They were Gerald and Bata.
Gerald resided in a shack on erf 508 Emdeni also.
Bata resided a
street or two away.
[52]      Both she and Mbongeni went towards
the robbed person who was lying in the street where the robbery
took
place at that stage.  They assisted him to stand up. He told
them that the two robbers had just robbed him of a laptop
and two
cellphones.  They volunteered to accompany him to the Naledi
Police Station.
[53]      As they were walking past the library
building a police van approached from their front.  They
stopped
it and related to the policemen what had just happened.
[54]      The police took them on and they lead
them to Gerald’s shack at erf 508.  They did not
find
anybody there.  The police then left, leaving this witness and
Mbongeni there.
[55]      On Friday, 11 November 2011 there were
funeral arrangements being attended to in the witness and
plaintiff’s
street.  Women who included Zanele were helping at the bereaved
house with the peeling of vegetables among
others in preparation for
the funeral the following day.
[56]      Zanele saw police vans with flashing
blue lights at or alongside erf 5…. Emdeni, which is
the
plaintiff’s home. She and others went there out of curiosity.
As they arrived the police were escorting a handcuffed
plaintiff out
of the yard, walking him towards one of the police vans standing
there.  His hands were cuffed at the back.
[57]      She asked the plaintiff what the matter
was as he was being put at the back of the police van. He
replied
that he was being arrested as a suspect in a robbery that occurred
nearby on 10 November 2011.
[58]      Zanele promptly approached the police
and told them that they had arrested the wrong person for the
robbery
that was perpetrated the previous day. She also told them she
witnessed that robbery being perpetrated and that the culprits
were
Gerald and Bata.
[59]      The police told her that they are just
taking the plaintiff in for questioning and that they would
return
him home after doing so.  She next saw the plaintiff on Monday,
14 November 2011.
[60]      According to this witness no other
robbery took place in their area on 10 November 2011 save the
one
involving the complainant.  She also stated that she told the
police that Gerald also resided in erf 5……
Emdeni where
the plaintiff also occupied a shack – hence she leading the
police they met in the street there.
[61]      During cross-examination she told this
Court that she grew up in the same area with the plaintiff
and that
she knew Gerald as a nyaope (drug-concoction) smoking young man in
their locality.  This same evidence was also testified
to by the
plaintiff.
[62]      When it was put to her that according
to Sgt Sekati who testified on behalf of the defendant he (Sgt

Sekati) was only with one colleague, one Sgt Mudau, when he arrested
the plaintiff, Zanele vehemently disputed this, telling court
that
there were many policemen at the arrest scene having come in three
vans and a sedan.  She even proceeded to describe
one policeman
who stood out among those who were there – he was wearing
spectacles and was in private clothes, wearing also
a pull-over and a
maroon shirt. This too was a description given by the plaintiff when
he testified of one of the policemen who
came to arrest him.
DEFENDANT’S
VERSION
[63]      The defendant’s version was
led through three witnesses, namely, the arresting officer,
Sgt Simon
Hope Sekati; the latter’s colleague and immediate superior, W/O
Brey Makhubela; and the victim of the alleged robbery
and also
complainant, Thoriso Malesa.
SGT
SIMON HOPE SEKATI (“
Sgt Sekati
”
)
[64] According to his testimony he is a sergeant in the South
African Police Force (“
SAPF
” or “
SAPS
”),
at the time of the incident leading to these proceedings, stationed
at Naledi Police Station in or at Naledi, Soweto.
He has been with
the SAPS since the year 2000, i.e. he has 14 years service with the
police force to date. He was then stationed
in the Community Services
Centre (“
CSC
”), an acronym for the commonly known,
charge office.
[65]      On 11 November 2011 he reported for
night shift duty at 18h00. Some time after 18h00 he was approached
by
Thoriso Malesa (“
complainant
”) who reported to him
that he had opened or laid a charge of armed robbery on him the
previous day, i.e. 10 November 2011
and that he knew his assailants
only by sight. He was allegedly robbed of a cellphone and computer
laptop.  On his enquiry
the complainant furnished him (Sgt
Sekati) with a case reference, being CR 99/11/2011.  He checked
the records and confirmed
that a case of armed robbery was opened by
him (complainant) on 10 November 2011. W/O Makhubela (“
W/O
Makhubela
”) was reflected as the investigating officer. He
speed-dialled W/O Makhubela to find out if there had been new
developments
like arrests since the case docket was referred to him.
The latter reported that no further developments took place since he
received
the case docket.
[66]      After locating the case docket he noted
that the complainant’s statement stated that he was
robbed by
people he only knew by sight.  This time round, the complainant
told him that he had information about the whereabouts
of one of the
two  men who robbed him.
[67]      He (Sgt Sekati) bounced the information
he received and that already on the docket with his commanding

officer on the day. According to this witness, this was the accepted
or required protocol at the police station to keep senior
police
officers in the loop about what was to be done or being done about
reported cases; also to obtain further instructions about
the way
forward.  He also further consulted with W/O Makhubela.
[68]      Because the complainant was this time
round indicating that one of his assailants resides at a house
in
Emdeni Township, he decided to record another or second statement by
this witness.
[69]      He then interviewed the complainant and
asked him if he was sure or certain the man in Emdeni Township
was
one of his assailants. The latter was adamant he would identify his
assailants if he sees them.  He (Sgt Sekati) asked
the
complainant to describe man who allegedly resided at the house he
wanted to take the police to in Emdeni Township.  He
described
him as being tall, dark and lean, with a scar on his forehead.
[70]      When asked what the house number was
the man was resident at he stated to this witness that he can
point
it out to the police.
[71]      To make sure the requisite reasonable
suspicion of the commission of an offence existed Sgt Sekati
asked
the complainant if the possibility existed that he could be making a
mistake. The latter was adamant that he would easily
recognise any of
his assailants should he see them.
[72]      As a result, he (Sgt Sekati) was
convinced about a crime having been committed and that a reasonable

suspicion existed that the person or persons the complainant wants to
point out to him could be the culprits. He thus left with
the
complainant for the said house in the company of a colleague of his,
Sgt Mudau, who was driving the police van. The van’s
emergency
or police lights were activated.
[73]      At Emdeni Township, the complainant led
them to a house in Zwane Street. As they cruised past erf
number 5….,
he (complainant) pointed at it and ordered them to stop. Sgt Mudau
stopped, reversed until he was alongside
this erf 5,,,, Emdeni North.
They alighted and he and the complainant entered the erf.
[74]      Inside this erf there was a main house
as well as three shacks.  One of the shacks’s door
faced
directly to the entrance gate to the erf.
[75]      He asked the complainant where in the
erf the assailant resided – in the main house or any
of the
three shacks.  The latter stated to him that he did not know
exactly where in the four locations inside this erf the
assailant
stayed. So they knocked at the door of the shack whose door faced
directly to the main entrance gate. A man bid them
to enter. He was
alone there.  The complainant immediately shrieked that that man
was one of his assailants on 10 November
2011. He even wanted to rush
to or tackle him while screaming at the man to produce his cellphone
and laptop.  He stopped
him.  He formally asked the
complainant if that man in the shack was familiar or known to him. He
replied that he was the
man who robbed him on 10 November 2011.
[76]      Sgt Sekati had a torrid time trying to
stop the complainant from rushing or tackling the man. The
latter
continually bombarded the man with demands that he produce his
cellphone and laptop.
[77]      From the manner in which he was
behaving he, Sgt Sekati, became convinced that the complainant had

genuinely met one of the men who robbed him of his property. This man
also fitted the description the complainant gave of him to
him while
they were still at Naledi Police Station – he was tall, in fact
taller than him and the complainant; dark in complexion;
lean and he
had a scar on his forehead.
[78]      He confronted this man, who happened to
be Bonginkosi Sithebe (“
the plaintiff
”), and asked
him to respond to the complainant’s allegations. The plaintiff,
instead of responding to the direct accusations
of being a robber by
the complainant, instead responded irrelevantly by stating that he
has employment.  Sgt Sekati asked
him directly where he was on
the date and time the complainant was robbed. He replied by stating
that he was in the company of
his friends in Emdeni at that time.
When the question was repeated for him to clarify his answer he
became evasive and slippery
– at one stage stating that he was
busy with gardening chores at home at that time; and at another stage
saying that he was
with his friends in Emdeni Township.
[79]      When asked to respond to the
complainant’s demand that he produce his cellphone and laptop

he reverted to his inexplicable answer that he has employment or is
employed.  This made this witness to be convinced that
the
plaintiff had something to hide as he gave totally irrelevant and/or
non-suited answers to straight questions put to him. That
is when
this witness asked him where actually he was employed. The plaintiff
had no answer to give. He also asked him why he was
lolling around
Emdeni Township or doing gardening at home if he was gainfully
employed. Equally the plaintiff had no answer to
give.
[80]      That also convinced this witness that
the plaintiff had a case to answer pursuant to the allegations

levelled against him, more-so that according to answers the witness
gave during cross-examination, the plaintiff was visibly frightened

and was even trembling.
[81]      Sgt Sekati then warned the plaintiff
that he was going to arrest him on allegations of robbery with

aggravating circumstances which is a Schedule 1 offence.  He
repeated his (Sgt Sekati’s) names to him, read him his

constitutional rights and arrested him.
[82]      He escorted him to the police van where
he was made sit at the back.  From a question put to
him by the
plaintiff’s counsel during cross-examination, this police van
had the tarpaulins at its windows and rear pulled
down as was
required when it was used after sun-set or at night.  The
plaintiff was then taken to Naledi Police Station where
he was booked
in as an arrested person. Sgt Sekati then reported to his commanding
officer about what he had done and was also
about to do. The
plaintiff was then taken to Jabulani Police Station where he was
detained in terms of section 40(1)(b) of the
Criminal Procedure Act
among others.
[83]      Sgt Sekati stated further that had he
not arrested the plaintiff in the face of the facts and circumstances

at his disposal at the time, the complainant could have justifiably
lodged a complaint against his actions – which aspect
could
have had disastrous or unbecoming consequences against him as a
person and the police service in general.
[84]      This witness was subjected to a lengthy
cross-examination. I will deal with the
sequelae
thereof in my
evaluation of the evidence.
W/O BREY
MAKHUBELA
[85]      He is a detective attached to the
Naledi SAPS with 14 years service as a detective.  His evidence

is that he received the case docket in issue here from the CSC or
charge office on 11 November 2011. There was no identified suspect
on
it. On 12 November 2011 he received a report that a suspect had been
arrested. When he perused the docket he saw that a pointing
out
statement was also filed in it. It deposed to the complainant herein
having taken the police to house 5…….. Emdeni
North
situated on Zwane Street, where he proceeded to point out somebody as
being one of the two people who robbed him on 10 November
2011.
The arrested person happened to be the plaintiff in this case.
[86]      He decided to re-interview the
complainant again because in addition to the statement of a suspect

pointing out, there was a second statement by the complainant in the
robbery case opened. He decided to re-interview the complainant

because the first or initial complainant’s statement did not
mention any suspects whereas the new one did so, albeit not
by name.
He wanted to understand the circumstances leading to the pointing out
of the plaintiff.
[87]      According to this witness the
complainant told him that he made enquiries around Emdeni Township

and people who did not want their identities made known told him
where one of the people who robbed him resided. It emerged during

cross-examination that the reason why the informants did not want to
be identified told him they feared the wrath of the suspects
as they
were notorious criminals.
[88]      The above is evidence of character,
which should not ordinarily be lead by a state witness.

However, it became admissible this time because it was specifically
and deliberately solicited by the plaintiff’s counsel
during
cross-examination. I reminded this counsel of the dangers of
eliciting inadmissible evidence as that would lead to the “
lifting
of the shield …
”, i.e. resulting in his adversaries
doing likewise.
[89]      He then visited the plaintiff at the
Jabulani Police Station cells : Upon arriving there, he read
him or
warned him of his constitutional rights as well as his rights
relative to the taking down of a warning statement from him.
[90]      The warning statement forms part of the
documents discovered herein and is marked exhibits C.18 to
C.22 of
the paginated papers herein.  The suspect, i.e. the plaintiff
herein, answered all the questions preceding where a
warning
statement would be recorded, including mentioning that he was
prepared to make a statement, and however, he did not make
any. As a
result of the non-incriminatory nature of the so-called warning
statement the parties agreed that it can be handed in
as exhibit or
be used by any of them in cross-examination.
[91]      Another purpose of visiting the
plaintiff at the police cells was to prepare him for his court
appearance
the following day, i.e. Monday 14 November 2011.
From the above it is logical to deduce that this visit by W/O
Makhubela
to the plaintiff occurred on Sunday 13 November 2011.
[92]      According to this witness further, he
questioned the plaintiff about the alleged armed robbery on
the
complainant on 10 November 2011. The latter denied robbing any person
on that day, let alone robbing the complainant herein.
[93]      He took his fingerprints and ultimately
took the docket to the public prosecutor for decision on
14 November
2011. The prosecutor declined to prosecute the plaintiff, especially
because the complainant was not willing to disclose
the identities of
the people who gave him information about the plaintiff’s house
or home address, worse still, as he also
did not know where those
informants resided.
[94]      It is the above aspects, among others,
his eagerness to know who the possible state witnesses who
may also
happen to be eye-witnesses to the robbery were as well as where they
could be found that prompted him to record the second
witness
statement by the complainant.
[95]      He further stated that he did not find
it necessary to conduct an identification parade as the complainant

had already identified the plaintiff to the police on the date of the
latter’s arrest at his shack at Emdeni North.
[96]      This witness’s cross-examination
by counsel for the plaintiff did not yield much. The only
material
aspect dealt with was whether the witness acknowledged that nowhere
in the two statements made by the complainant was
mention made of the
latter identifying his assailant through a scar on his forehead.
His answer was in the affirmative, i.e.
that that appeared nowhere in
the two statements.
APPLICATION
BY DEFNEDANT TO RE-OPEN THEIR CASE
[97]      After the plaintiff had closed its
case, counsel for the defendant applied for leave to re-open the

defendant’s case as the complainant, who the police in the
mouth of W/O Makhubela told him was refusing to come and testify
in
this matter, was present at court and ready to testify.
[98]      Counsel for the plaintiff indicated
that he did not have any objection to the defendant be allowed
to
re-open its case under the circumstances.  I granted leave for
the defendant to re-open its case.
[99]      The complainant THORISO MALESA then
took to the witness stand.
[100]   His testimony is that he resides at 5……
Kisa Street, Emdeni South, Soweto and he is employed at Jump-start

Foundation which is situate at Northcliff, Gauteng North, as a
mathematics tutor and project manager.
[101]   On 10 November 2011 at around 06h45 he was walking
towards his usual bus stop along Nelson Mandela Road in Emdeni
on his
way to work. He was carrying his laptop bag containing a laptop, two
cellphones, some documents relating to his work as
well as a
calculator.
[102]   He entered a shop along the road and purchased cellphone
airtime.  As he continued on his way he saw at a distance
ahead
two young men leaning against a wall or a mural. He thought nothing
of it. Visibility was good all round as it was already
early morning.
[103]   He took out one of the two cellphones and proceeded to
load the airtime into it.
[104]   He then heard the sound of flick knives opening.
When he look up, the two young men he earlier saw ahead of
where he
was to walk past were upon him, knives at the ready. They demanded
that he hand over everything he had on and/or with
him to them
without a fuss, otherwise they were going to stab him with their
knives.
[105]   One of the two robbers’ face looked familiar to
him although he could not say where he had seen it, albeit in
or
around Emdeni Township.  He took a chance and addressed this
particular robber, asking why he was robbing him whereas he
knew
him.  That ruse did not deter the two young men.
[106]   Somehow he found himself lying on the ground : He does
not remember or know if he was tripped or he tripped over himself
in
that confusion. The laptop case had fallen somewhere away from where
he had fallen down. He screamed for help but bystanders
just stood
and watched – none of them coming to his assistance.
[107]   They started walking away and he thought his ordeal was
over.  However, one of them, the darker skinned of the
two,
returned and picked up the laptop bag, at the same time asking him
what was in it.  His knife was in a stabbing position
and he
advanced towards him menacingly. Fearing for his life he took evasive
action and beat a retreat towards where he came from.
[108]   According to this witness both robbers were taller than
him. One had a lighter skin while the other was dark-skinned.
The
dark-skinned one had a scar on his forehead.
[109]   There were people around the area of the robbery and the
one he noticed first was a woman sweeping outside her yard
nearby. He
believes many people witnessed what had happened as they stood
watching throughout the robbery.
[110]   He does not remember speaking to any of the people
walking or standing near the scene of the robbery.
[111]   As he was walking back on his way to the police station
he met his brother. He related his experiences and/or ordeal
to him.
[112]   He walked to the police station alone. When confronted
with the evidence led by Zanele Gumede, he denied knowing any
Zanele
Gumede or walking towards the police station in hers and Mbongeni’s
company.  He further stated that he is in
no way to dispute
Zanele’s testimony that she witnessed the robbery on him.
[113]   At the police station he opened a case of robbery and
described among others how his assailants looked like to the
police :
Apart from their skin colour and the scar on the dark-skinned one, he
further stated that he described the clothing they
wore to the police
: darkish clothes, and one of them had a denim jean on. Both had
covered their heads with hoods. When asked
what type of hoods, he
described what is commonly known as a dry-mech.  It is something
like the hood seen on the head of
caricatures depicting the devil or
messenger of death in the print media and TV or to those that are
cinema-savvy, the hood worn
by Darth Vader in the film, “
Star
Wars
”.
[114]   He further stated that after the policeman recording his
statement finished writing, he read it first and was satisfied
it
contained all that he told him. After being that satisfied, he signed
it.
[115]   This statement was placed in front of this witness to
read. After he had read it he stated to court that it is indeed
the
statement he made, was satisfied with and which he ultimately signed
on 10 November 2011. He however equally agreed that nowhere
in that
statement was any description of any assailant inscribed. None of the
identifying skin colour, scarring or clothing worn
was in this
statement.
[116]   One Sgt Mudau accompanied him back to the crime scene
where the former wanted to look around to satisfy himself. After
that
he went to drop him off.
[117]   For the rest of that day, he and his mother traversed
the vicinity of the robbing, asking people if they saw it happen

and/or know who the culprits were. At the end of the day he was
satisfied he had the right information that can lead to the arrest
of
one of his assailants.  The following day, i.e. 11 November
2011, he returned to the police station. According to him,
people
around the area of the robbery had assured him that if he can come
back with the police, they would point out to the latter,
the house
or houses where the culprits stayed. He related this information to
the police.
[118]   His sister’s husband who resides at Vosloorus,
Boksburg in Ekurhuleni District or Metropolitan Municipality
was with
him. Together with the police they drove to the area where he was
robbed – he and his brother-in-law in their own
motorcar, and
the police in their own vehicles.
[119]   At the area around the scene of the robbery people –
who were not necessarily the same people he had seen and
talked to
the previous day and who agreed to give the police information about
the robbers – pointed a house to the police
as the place where
the robbers lived. It also emerged when the complainant was under
cross-examination, that the culprit’s
name was given as Thami.
[120]   They did not find anybody at that house which was the
first to be pointed out to them. The members of the public or

informants then pointed out a second erf to them.  This house
was about 150 metres away from the house pointed out first,
also in a
different street. They went there. It happened to be erf 5……
Emdeni North. It had a main house and two
shacks in it. Sgt Sekati
said there were three shacks.
[121]   He followed the police as they approached the first
shack.  He is not sure if the police knocked on the door.

Nevertheless, they entered it. There was a young man seated on a bed.
The police asked him (complainant) if that young man was
one of his
robbers. He looked at him, scrutinising his features. When he was
convinced he was not making a mistake, he told the
police that young
man was definitely one of the two people who robbed him the previous
day.
[122]   The police arrested him.
[123]   When they stepped out of the shack with the arrested
young man, they found a crowd congregated in the street next
to the
police van they were taking the arrested young man to. Those members
of the public in the street engaged the police about
the arrested
person, intimating to them that they had arrested a wrong person. He
kept quiet as he had been instructed by the police
not to respond to
any questions, utterances or statements from or by those people
milling around in the street. According to him,
there were between 15
and 25 people in the street.
[124]   According to this witness when the police drove away
with the suspect – who was the plaintiff in this matter
–
he and his brother-in-law also drove away homewards. He was adamant
that he did not follow the police van to the police
station.
[125]   He further testified that he visited KwaZulu-Natal
immediately after the arrest of the plaintiff on a work tour. While

there W/O Makhubela phoned him and asked him to come and see him when
he returned home. He had notified W/O Makhubela before he
left. Upon
his return he learned that the arrested suspect had been released
from custody and his charges quashed.  He was
very disappointed
and traumatised by this. He then went to the police station to find
out why things had turned out as they did.
[126]   He does not remember who he talked to at the police
station.
[127]   This witness was subjected to a withering
cross-examination at the end of which his evidence was left in
tatters.
At the end of that cross-examination, his testimony
materially contradicted that of Sgt Sekati, the arresting officer.
[128]   I will deal with the aspects in my analysis.
THE LAW
[129]
Section 40(1)(a) of the Criminal Procedure Act
[1]
(“
the
Act
”)
states among others that –
“
(1)
A peace officer may without warrant arrest any person –
(a)
…
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody.
”
[130]   The arresting officer here was a peace officer and armed
robbery is a Schedule 1 offence.
[131]   Section 39(1) and (3) of the Act lays down the
applicable law as follows:
“
39(1)  An arrest shall be effected
with or without a warrant and, unless the person to be arrested
submits to custody, by actually
touching his body or, if the
circumstances so require, by forcibly confining his body.
(3) The effect of an arrest shall be that the
person arrested shall be in lawful custody and that he shall be
detained in custody
until he is lawfully discharged or released from
custody.
”
[132]
It is trite law that an arrest is
prima
facie
wrongful and unlawful as it interferes with an individual’s
right to freedom of his person and integrity.  It is one
of the
reasons why the
onus
of proof in cases of this nature shifts onto the defendant to prove
that the arrest was lawful.
[2]
[133]   Arrest without a warrant is one of the most oppressive
means of initiating a prosecution. Personal freedom of an individual

is a right which has been jealously guarded and protected by our
courts in general. As a result, once the jurisdictional facts

justifying an arrest without a warrant are found to exist, any
enquiry into the lawfulness or otherwise of a warrant-less arrest

should come to an end as the precondition for the exercise of such
power would have been satisfied.
[134]
The section
[3]
specifically mentions a person committing or attempting to commit any
offence in such arresting officer’s presence.
[4]
Where this section is relied upon, the
onus
is on the police to prove the necessary.
[5]
[135]   The elements or requirements for a successful reliance
on section 40(1)(b) is that –
135.1
the
arrestor is or be a peace officer;
135.2
he/she
must entertain a suspicion;
135.3
such
suspicion should be that the arrestee had committed a Schedule 1
offence; and
135.4
the
suspicion must have rested on reasonable grounds.
[136]
Section 7 of the Constitution of the Republic of South Africa
Act
[6]
(“
the
Constitution
”)
reads as follows:
“
7.
Rights
(1)
This
Bill of Rights is a cornerstone of democracy in South Africa.
It enshrines the rights of all people in our country and
affirms the
democratic values of
human
dignity, equality and freedom
(my
underlining).
(2)
The State must respect,
protect, promote and fulfil the rights in the Bill of Rights
.”
(my underlining)
[137]   Section 12 of the Constitution reads as follows:
“
(1)      Everyone
has the right to freedom and security of the person, which includes
the right –
(a)
Not
to be deprived of freedom arbitrarily or without just cause;
(b)
Not
to be detained without trial;
(c)
To
be free from all forms of violence from either, public or private
sources;
(d)
Not
to be tortured in any way;
(e)
Not
to be treated or punished in a cruel, inhuman, or degrading way.
”
[138]   Section 39 of the Constitution titled “
Interpretation
of Bill of Rights
” lays it down that –
“…
(2) When interpreting any
legislation … every court … must promote the spirit,
purpose and object of the Bill of
Rights.
”
[138]
South African Police Service Standing Order G.341 also has
relevance on this aspect. The thrust of the standing order
was
clearly projected in
Minister
of Safety and Security v Van Niekerk
[7]
as follows:
“…
This
standing order makes it clear that arrest is a drastic procedure
which should not be used if there are other effective means
of
ensuring that an alleged offender could be brought to court.
”
[130]
Footnote 13 in
Minister
of Safety and Security v Van Niekerk
[8]
reads as follows:
“
Standing
Order (G) 341, issued under Consolidation Notice 15/1999 and entitled
‘Arrest and the Treatment of an Arrested Person
until Such
Person is Handed Over to the Community Service Centre Commander’,
provides as follows:
‘
1.
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, 1996 (Act No. 108 of
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
therefore 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 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) below.
3)
A
member, even though authorised by law, should normally refrain from
arresting a person if –
(a)
the
attendance of a 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, (at present
R1500-00), in
which event 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.
(a)
Arrest for the purposes of further investigation
…
(b)
Arrest
to verify a name and/or address
…
(c)
Arrest
in order to prevent the commission of an offence
…
(d)
Arrest
in order to protect a suspect
…
(e)
Arrest
in order to end an offence
…
6.
Manner of effecting an arrest
…
(2)
Arrest without a warrant
(a)
It
is only in exceptional circumstances where a member is specifically
authorised by an Act of Parliament (for example,
sections 40
and
41
of the
Criminal Procedure Act, 1977
) to arrest a person without a
warrant, that a person may be arrested without a warrant.  Any
arrest without a warrant, which
is not specifically authorised by
law, will be unlawful.
’”
EVALUATION AND
ANALYSIS
[141]   From the summary of the testimonies given by witnesses
for each party herein, it is clear that there are two mutually

destructive versions.  To resolve such a situation the learned
judge in
Stellenbosch Farmers Winery Group Ltd and another v
Martell ET and Others
set out the following:
“
The
technique generally employed by courts in resolving the 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
court’s finding on the credibility of a particular
witness will
depend on 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 what
established fact or with his own extracurial statements or actions,
(v) the probability or improbability of
particular aspects of his
versions, (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
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 rate 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.
”(9a)
[142]
To discharge the
onus
in such a situation the court in
Koster
Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë
en Hawens
[9]
stated that where the versions of the plaintiff and the defendant are
mutually destructive, it must be proved that the version
of the party
burdened with the
onus
is true and that of the other party is false.
[143]   According to defendant’s Sgt Sekati, the
complainant came to the police station and told him that he had
information
concerning the people who robbed him. He further told him
he was in a position to go and point out the house(s) where the
culprits
lived to him.  He drove the police van to the area and
the complainant himself caused their vehicle to stop and pointed at

house 508 Emdeni North as the plea where his assailant(s) stayed.
They entered that erf.
[144]   According to the complainant’s testimony, he told
Sgt Sekati at the police station that he would take the police
to
people near or around the scene of his robbery who (the people) would
point out the culprits’ houses to them (the police).
They drove
to the area and members of the public (not the complainant) pointed
two houses to the police.
[145]   Clearly the two most important witnesses for the
defendant contradicted each other materially on this aspect.
[146]   About what happened when the police entered the
plaintiff’s shack on 11 November 2011, the following unfolded.
[147]   According to Sgt Sekati, when he encountered the
plaintiff inside the shack, his only other colleague, Sgt Mudau,
was
outside and he was a lone police officer therein.  When the
complainant entered the shack he spontaneously rushed the
plaintiff
demanding his laptop and cellphone and he had to restrain him.
[148]   According to the complainant’s answers during
cross-examination, inside the shack the police only asked him
if the
man seated on the bed therein is one of his assailants.  That he
first scrutinised him.  Only after he had satisfied
himself did
he confirm to the police that indeed he was the one.
[149]   The police witness flatly denied ever putting it to the
plaintiff that his name was Thami. He also denied checking
the
latter’s identity book to verify his claim of not being Thami.
However, when the complainant testified, he confirmed
the plaintiff’s
version to the effect that when the police arrived they addressed him
as Thami and when he refuted or denied
being Thami, police demanded
his identity book which the plaintiff promptly produced.
[150]   As regards happened when the police stepped outside the
plaintiff’s shack with him handcuffed, the evidence
of the two
defendant’s witnesses, Sgt Sekati and the complainant is also
mutually destructive.
[151]   According to Sgt Sekati, when they stepped out, there
were no people in and/or around the sole police van they had
come
in.  According to the complainant, there were many members of
the public around the several police vehicles and other
police
officers outside.
[152]   There is also evidence from the plaintiff’s
witness Zanele Gumede as well as from the plaintiff that Zanele
told
the police that she and other available members of the public told
the police escorting the plaintiff out of his erf to one
of the three
police vans and a sedan there in attendance, that they were
eye-witnesses to the complainant’s robbery on 10
November 2011
and that the correct culprits were Gerald and Bata.  Sgt Sekati
denied this ever happening.  However, the
complainant confirmed
that indeed there were many members of the public milling around and
some of them did speak to the police
about the plaintiff being
innocent and the real culprits being known.
[153]   With regard to what the complainant told the police when
he reported the robbery, the first statement he made on 10
November
2011 did not describe any features or characteristics or clothing
worn by the culprits.  The above sharply challenges
the
complainant’s and Sgt Sekati’s evidence in court that the
complainant described how the culprits looked like or
what they wore,
let alone whether or not the darker-skinned of the two had a scar on
his forehead. Even the second statement the
complainant made after
the plaintiff had been arrested and taken to Naledi Police Station
does not speak about any scar on a forehead
or any articles of
clothing as testified to by the complainant in court.
[154]   It is my considered view and finding that if any
identifying features of the culprits were indeed discussed when the

complainant opened the criminal charges, they would definitely have
been part of the initial statement he made.  Supposing
he forgot
to mention them in his first statement, then he ought to have
mentioned them in his second statement made a day after.
It is thus
my view and finding that the conclusion is inescapable that the
mention in court by both Sgt Sekati and the complainant
that they
talked about the culprits having a scar or wearing this and that is
nothing but a recent fabrication.  It was the
complainant’s
evidence that he read each statement before he could sign it after
being satisfied that it contained all that
he had related to the
writer of the statement.  Considering the complainant’s
level of literacy and station in life
work-wise, it is my finding
that such glaring omissions as those relative to how he could
identify his assailants would have stuck
out like a sore thump and he
would have ensured they were rectified before he signed them.
[155]   The defendant’s witnesses’ conflicting
versions did not end there.
[156]   According to the complainant, after the plaintiff was
arrested at 508 Emdeni North, he did not follow the police to
the
police station. This conflicted with the plaintiff’s witnesses’
version that the complainant indeed followed the
plaintiff to the
police station where he even started to demand his laptop and
cellphones. Although the complainant insisted he
never went to the
police station again on 11 November 2011 after the arrest of the
plaintiff, this version is irreconcilable with
the fact that he made
the second statement at the police station on that date. The
investigations diary filed in the paginated
papers herein as
annexures C.41 to C.48 also confirm that. When the complainant was
under cross-examination, the following came
out at item 94 of my
court notes:
“
94.
Q.
Plaintiff testified that you even visited him at the cells demanding
your laptop and cellphone?
A.
I saw him and said nothing to him.
”
[157]   This question and answer in my view characterises the
complainant as an untruthful witness, especially more so that
it was
not the first time he conceded to not having told the whole truth.
[158]   When this point was pressed further, the complainant’s
response was:
“
95.
…
A.
Uh
…! Ah …! Eh…! I don’t remember well if
(
sic
)
I
ever went to the police station or not …
”
[159]   When the totality of the defendant’s version is
assessed as a whole, I am satisfied that it is mutually destructive

on its own. From their answers during cross-examination, both Sgt
Sekati and the complainant either were lying to this Court or
were
deliberately misleading it.
[160]   I am convinced that Zanele Gumede told the police who
the complainant’s real robbers were. The arresting police

officer should have first verified Zanele’s story before
continuing with leading the plaintiff away. From the complainant’s

evidence also, it became clear that members of the public pointed at
the houses where the two culprits respectively resided. This
means or
translates into the fact that the police had eye-witnesses at their
disposal who would have given them the identities
and/or names of the
two robbers.  They (police) contemptuously spurned this
assistance by  members of the public.
[161]   Even at the police station after his arrest, the
plaintiff implored the police to visit the vicinity of the robbery

scene and interview people who said they saw who committed the
robbery. There is evidence that W/O Makhubela dismissed the
plaintiff’s
entreaty, telling him instead that he (W/O
Makhubela) also have his own witnesses who would testify to the
plaintiff’s complicity
in the robbery. It emerged at the end of
the day that W/O Makhubela had no such witnesses. His was just an
empty bluff.
[162]   From the evidence of the defendant alone, it is clear
that the police cannot have formed a reasonable suspicion that
the
plaintiff was one of the two men who robbed the complainant.
[163]   However, the above does not absolve this Court from
evaluating the evidence of the two plaintiff’s witnesses.
[164]   The evidence of the plaintiff insofar as what happened
or prevailed outside the erf he was arrested as was corroborated
by
Zanele Gumede in all material respects like the people around the
area, the number of police vehicles there, the number of policemen
in
attendance as well as Zanele’s intimation to the police about
who the actual robbers were. Zanele’s evidence was
virtually
uncontradicted or uncontroverted.  The whole of it still stood
unshaken at the end of her cross-examination.
[165]   When I evaluate the credibilities of the witnesses who
testified in this matter, the plaintiff’s witnesses were

thoroughly impressive and ostensibly credible witnesses. They gave
their evidence in a confident, free-flowing and logical manner.
They
stood well to cross-examination. Their demeanours in court were such
that one could easily see that they were testifying about
things that
they saw or heard themselves. They both made very good impressions as
witnesses to the court.
[166]   The police were in my view duty-bound to investigate the
plaintiff’s assertion that he was at work on 10 November
2011.
By not doing so, they deprived themselves of any moral high ground of
alleging as Sgt Sekati did, that the plaintiff
was hesitant and
showed guilty conscience.  There are no grounds for a lay person
like Sgt Sekati to arrive at such a conclusion.
[167]   On the other hand, the defendant’s witnesses did
not make a good impression in the witness stand.
[168]   The complainant was throughout leading evidence that was
speculative or conjectural. Instead of answering a straight
forward
question relative to what he said in his evidence-in-chief, he would
respond that he does not remember. His testimony was
filled with
“
if’s
” and “
supposes
”; “
I
believe …
”, “
I think …
”
etc.
[169]   When he was asked during cross-examination why the
perpetrator’s scar or the clothing they allegedly wore during

the robbery were not in his two statements, he said –
“…
I
think I was only asked if I could describe my assailants after I had
made my statements …
”
[10]
[170]   If the above answer is anything to go by, then it would
mean that the whole of the complainant’s testimony and/or

chronology of events were one big untruth and fabrication.
[171]
When pressed as to whether he was sure of the answer he gave,
he replied by stating:  “
I
think so
.”
[11]
[172]   At the end of the complainant’s testimony, he had
undone and contradicted all material aspects testified to
by Sgt
Sekati and W/O Makhubela.
[173]   From the totality of their evidence, it is very, very
difficult to find that the defendant’s witnesses were
truthful
and credible witnesses. The complainant only testified after the
plaintiff had closed his case.  His counsel applied
for and was
granted leave to re-open the defendant’s case. It should be
noted or remembered that the defendant’s witnesses
led their
evidence first. Instead of corroborating the first two of the
defendant’s witnesses, the complainant contradicted
their
versions materially.
CONCLUSION
ON MERITS
[174]   The plaintiff herein was in detention for a period of
not less 66 hours after he was arrested on 11 November 2011
in the
evening. It is not in dispute that the arresting officer, Sgt Sekati,
was a peace officer. That Sgt Sekati entertained a
suspicion of the
commission of a Schedule 1 offence is also not in dispute. What is in
dispute is whether or not Sgt Sekati, when
he arrested the plaintiff,
was acting on a suspicion that rested on reasonable grounds.
[175]
In
Minister
of Safety and Security v Sekhoto
[12]
the court held as follows in part of the head note:
“
Held,
further, that once the required jurisdictional facts were present,
the 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.
”
[176]
From the totality of the evidence herein, even from the
defendant’s version alone, the arresting officer did
not stay
within the bounds of rationality when he exercised the discretion to
arrest the plaintiff.  There were eye-witnesses
who told him in
the face that the person he was arresting was not one of the two
armed robbers who accosted the complainant on
the morning of 10
November 2011. Sgt Sekati chose to ignore this information that was
being drilled into and onto him.  That
in my view is not a
reasonable exercise of a discretion to arrest in the circumstances.
[177]   It is so that the plaintiff does have a scar on his
forehead.  The plaintiff’s two witnesses, Sgt Sekati
and
the complainant also mentioned in their evidence in this Court that
the plaintiff’s scar was a major identification point
that led
to the complainant pointing out the plaintiff.  However, what
sticks out as a sore point is the fact that this major
identifying
feature is not mentioned in both the statement the complainant made –
one before the plaintiff’s arrest
and another after his
arrest.  This non-disclosure in my view inescapably points to
perceptions of this aspect being a recent
fabrication.
[178]   Furthermore, the complainant testified about describing
the clothes his assailants were wearing when they robbed him.
This
aspect also is absent in the two statements the complainant made to
the police. It is view and finding further, that a reasonably

proficient arresting officer would have searched the plaintiff’s
shack for the articles of clothing the complainant testified
about.
[179] This aspect also renders the decision by Sgt Sekati to arrest
the plaintiff irrational and unreasonable. When all the omissions
I
have alluded to hereinbefore are taken cumulatively, I find that the
police cannot be said to have entertained a suspicion that
rested on
reasonable grounds, that justified the arrest of the plaintiff
without a warrant. The situation is compounded further
when what was
done by W/O Maluleka at the police station after the plaintiff was
taken there after his arrest : He ignored the
plaintiff’s
impassioned pleas to go and interview eye-witnesses to the robbery
who had bluntly told his colleague, Sgt Sekati
and other police
officials thereat present, that the plaintiff was a totally wrong
suspect and that the perpetrators of the dastardly
deed were known.
Their names were also mentioned. Incidentally, one of them, Gerald,
was reported to be residing within the same
erf in Emdeni North as
the plaintiff. I find that it would have been the prudent and/or
rational thing to there and then return
onto the erf and look for
Gerald.
[180] In the pointing out statement made by the complainant, nowhere
does the identification features appear. The arrest statement
of Sgt
Sekati, also dated 11 November 2011 does not make mention of any
identifying features or marks as would have been mentioned
by the
complainant. The above makes the complainant’s answers to the
following question put to him during cross-examination
quite queer:
“
Q:. Were you satisfied
[after
reading your statements]
that they
[the
police]
had recorded what you told them?
(my bracketed explanatory facts)
A:
Yes.
Q: Do you agree
there is no description of your assailants therein?
A: Yes. But it is a
long time ago.
Q:
Read the statement and then reply sir.
(witness
reads statement in full.)
Then:
Q:
(Question repeated.)
A: I agree. It is possible the police did not
ask me questions that could have made me state specific
identification features.
Q: Are you saying it is the policeman’s
error or fault by not asking you the questions that would have
triggered answers directly
related to identification features?
A:
I think so.
”
[181]   This Court cannot visualise a scenario where a person
robbed by unknown people is not asked how he identifies them.
The
fact that he described his assailants solely as one being light
skinned and the other dark skinned in my view puts paid to
the
complainant’s above explanations.  I find that he was
economical with the truth about this aspect.
[182] These answers in my further view fit in with for e.g. the
following question and answer exchange between the complainant
and
the cross-examiner:
“
Q: In paragraph 3, page 15 of the
paginated papers herein the only description you gave was that both
assailants were tall.
A:
Correct.
Q:
That is the only description you have in that second statement?
A:
Correct.
Q:
You had read it and was satisfied before you signed it?
A:
I assume so. Yes.
Q:
There is nothing about clothing there?
A:
Correct.
Q:
Nothing about scar?
A: Correct. I think I was only asked if I
could describe my assailants after I had signed my statements.
Q:
Are you sure?
A:
I think so.
”
[183]   The tone of the above quote accurately describes the
manner in which the complainant gave his entire evidence : He
was
evasive, hesitant, contradicted what he said earlier in chief and
under cross-examination and was speculative in his responses.
[184]   I therefore find that the complainant, in addition to
materially contradicting other witnesses for the defendant,
was not
an impressive witness at all.
[185]   I also find that the only description of his assailants
the complainant gave to the police is that they were both
tall, one
was light-skinned and the other was dark-skinned.
[186]
How many dark skinned or light skinned tall men are there in Soweto
in general and Emdeni in particular.
This is the gist of what
was decided by Mali AJ in the unreported matter of
Ramoshaba
v Minister of Safety and Security and Cons Van den Berg
[13]
where the following was said at para [25] at page 11:
“
The
question then to be answered is, what was the reasonable suspicion
entertained by Constable Van den Berg on the day in question?

He responded to an instruction by his superior that there was a sworn
statement by only one person positively who had identified
the
plaintiff as a suspect in an armed robbery in an incident which
involved five people.  Nothing was placed before me as
to why
was the identification parade not held nor why were the other four
victims of the armed robbery not questioned about the
plaintiff’s
identity.  It was my observation that the plaintiff is not tall
and neither strong built, having regard
to his identity
[
sic
]
a
thorough identification was required. Any man who is tall, strong
built and good Afrikaans speaking could have been a suspect.
”
[187]   What happened in the above case of
Ramoshaba and
Another v Minister of Safety and Security and Another
is what
happened in our present matter.
[188]   I scrutinised the complainant in this matter and
compared what he said with what I saw in the plaintiff. Firstly the

plaintiff cannot be said to be very dark complexioned.  He is
what is commonly called coffee colour. He is of the same height
and
weight as the complainant more or less.
SYNOPSIS
[189]   A peace officer who relies on section 40(1)(b) of the
Act has to prove all the jurisdictional facts in that section.

Once these facts are present, the discretion whether or not to arrest
only then arises. The decision to arrest must be based on
the
intention to bring the person to be arrested, especially where there
is no warrant, to justice.  That discretion so exercised
must be
to arrest in good faith, rationally and not arbitrarily.  It
follows then that once the jurisdictional requirement
of a reasonable
suspicion is proved by the defendant, the arrest is brought within
the ambit of the enabling legislation and this
justified.
[190]   In this matter there is enough evidence pointing to the
fact that the suspicion formed by Sgt Sekati was improperly
formed.
I am satisfied that on the evidence before this Court, the decision
to arrest the plaintiff was made arbitrarily
and/or premised on
irrational reasoning.
[191]   It therefore follows that the defendant failed to
satisfy this Court that his suspicion was reasonable when he decided

to arrest the plaintiff. A reasonable police officer would have
listened to people professing to be eye-witnesses to the robbery
on
the plaintiff, analysed and assessed the quality of the information
at his disposal critically. He should not have acted as
he did –
acting impulsively and without sufficient reason and arresting the
plaintiff – on such flimsy evidence as
was gleaned from the
complainant.
[192]   I emphasise, Sgt Sekati did not have at his disposal a
reasonable basis at all to arrest and detain the plaintiff
herein. He
failed, neglected and/or refused to properly apply his mind to the
situation and facts at hand.  His conduct fell
far too short of
that which is expected of a police officer of his standing and
experience or position.  The above also renders
the plaintiff’s
detention unlawful.
[193]   In the circumstances, the plaintiff succeeds on the
merits. I have not come across any circumstances in this matter
that
could lead to this Court finding any contributory negligence on the
part of the plaintiff in the whole unfortunate saga.
QUANTUM
[194]
In
Thandani
v Minister of Law and Order
[14]
Van Rensburg J observed as follows on the aspect of unjustified
deprivation of liberty:
“
In
considering quantum, sight must not be lost of the fact that the
liberty of the individual is one of the fundamental rights of
man in
a free society, which should be jealously guarded at all times and
there is a duty on our courts to preserve this right
against
infringement.  Unlawful arrest and detention constitute a
serious inroad into the freedom and rights of an individual.
”
[195]
Visser and Potgieter,
Law
of Damages
,
[15]
sets out some of the factors to be taken into account in the awarding
of damages as follows:
“
The
circumstances under which the deprivation of liberty took place; the
presence or absence of improper motive or malice on the
part of the
defendant; the harsh conduct of the defendants; the duration and
nature (e.g. solitary confinement) of the deprivation
of liberty; the
status, age and health of the plaintiff; the extent of publicity
given to the deprivation of liberty; the presence
or absence of an
apology or satisfactory explanation of the events by the defendant;
awards in previous.
”cases”…
[196]   The plaintiff here had his welcome rest or
siesta
interrupted by the police in the company of the complainant. He was
just arrived from his workplace and was resting on his bed.
He was
bundled face-first on the bed and handcuffed at the back like a
common and dangerous criminal.  He was marched out
of his shack,
a policeman pulling him by the handcuffs, which progressively bit
deeper and tighter into his wrists.  A crowd
including women who
were helping with preparations for a funeral the following day gaped
at the spectacle that was unfolding in
front of them and the
plaintiff was the unfortunate centre-piece of the comedy.
Surely his standing and reputation in the
eyes of the crowd, who were
mostly, if not all, people who were his neighbours, must have
plummeted.  His own people started
looking at him ask-endly and
with visible contempt – in their eyes, although charges were
dropped against him, he was maybe
a ruthless robber who has brought
the family name down.
[197]   That he is entitled to a
solatium
for his arrest
and detention cannot be debated or debatable.
[198]
Bosielo AJA (as he was then) held as follows in
Minister
of Safety and Security v Tyulu
:
[16]
“
In
the assessment of damages for unlawful arrest and detention it is
important to bear in mind that the primary purpose is not to
enrich
the aggrieved party but to offer him or her some much-needed
solatium
for
his or her injured feelings. It is therefore crucial that serious
attempts be made to ensure that damages awarded are commensurate
with
the injury inflicted.  However, our courts should be astute to
ensure that the award they make for such infractions reflect
the
importance of the right to personal liberty and the seriousness with
which any arbitrary deprivation is viewed in our law …

Although it is helpful to have regard to awards made in previous
cases to serve as a guide, such an approach, if slavishly followed,

can prove to be treacherous.  The correct approach is to have
regard to all the facts of the particular case and to determine
the
quantum of damages on such facts.
”
[199]
Counsel for the parties on both sides referred to and even
furnished this Court with several decided cases with the
request that
this Court use them as a kind of template when assessing the quantum
of damages here.  I favour the approach
enunciated by Bosielo
AJA above.
[200]
Jones J aptly captured the spirit of the abovementioned
authorities in
Olgar v Minister of
Safety and Security
[ECD 18 December
2008 (Case 608/07) at para [16]] as follows:
“
In
modern South Africa a just reward of damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim, and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth.  These considerations
should be tempered with
restraint and a proper regard to the value of money; to avoid the
notion of an extravagant distribution
of wealth from what Holmes J
called the ‘horn of plenty’; at the expense of the
defendant.
”
[201]   It was argued on behalf of the defendant that if the
court is to award any damages to the plaintiff, an amount ranging

between R20 000 and R90 000 is the appropriate
solatium
to be
awarded. It relied on the following cases:
201.1
Minister
of Safety and Security v Seymour
[17]
where
the Supreme Court of Appeal reduced an award of R500 000 granted by
the High Court to R90 000.
201.2
Minister
of Safety and Security v Tyulu
[18]
where
an amount of R15 000 was awarded for wrongful arrest and detention.
[202]   On the other hand, the plaintiff persisted with his
claim for R150 000 and relied on a plethora of cases, some of
which
are the following:
202.1
Joshua
Ramoshaba v Minister of Safety and Security and Constable Van den
Berg
[19]
wherein
in a claim in the amount of R300 000, the amount of R275 000 was
awarded for a claim similar, if not identical with the
matter were
are dealing with there.
202.2
Emmanuel
Tlhaganyane v Minister of Safety and Security
[20]
where
the claimant seeking R150 000 was awarded R140 000.
202.3
Henry
Foster v Minister of Safety and Security
[21]
where
an award of R200 000 was made.
202.4
Steven
Mothoa v Minister of Police.
[22]
Hutton
AJ granted the award of R150 000 as sought by the plaintiff.
202.5
Ella
Raditsela v Minister of Police.
[23]
An
amount of R90 000 was awarded
vis-à-vis
a claim of R150 000.
202.6
In
Colin
Nelson v Minister of Police
[24]
the court awarded R110 000 after analysing and applying the
principles set out in all the cases I have quoted hereinbefore.

At today’s values, the amount is around R150 000.
[203]
The proper approach to assess damages include the evaluation
of personal circumstances of the plaintiff, the circumstances
around
the arrest as well as the nature and duration of the detention
[25]
.
It is so that previous awards may have a persuasive effect. However
the exercise involves the exercise of a discretion by
the trial
court. All of the above should not interfere with or upon the court’s
general discretion.  As Holmes JA put
it in
Pitt
v Economic Insurance Co Ltd:
[26]
“
However,
no better system of assessing damages has yet been evolved, and the
court has to do the best it can with the material available,
even if,
in the result, its award might be described as an informed guess.
I have only to add that the court must take care
to see that its
award is fair to both sides – it must give just compensation to
the plaintiff, but must not
pour
out largesse from the horn of plenty at the defendant’s
expense
.
”
(my
underlining)
[204]   The plaintiff was 30 years old when he was arrested and
detained. He was single and had two small children. He was
gainfully
employed. His arrest and detention resulted in him losing his
employment. To date he is unemployed.
[205]   The manner in which he described the conditions under
which he was detained was really heart-rending and deplorable
to say
the least : he was squeezed into a small cell and despite the fact
that the cell had reached the maximum of its capacity,
police kept on
bringing in more and more people there-at.  Most of those
brought into the cell during Friday night and Saturday
were dirty,
smell and cantankerous drunks who did not hesitate to urinate or
relieve themselves on the floor in full view of all
in there. He was
forced to share the mattress and one blanket he was given with the
new arrivals.  The blanket was dirty and
smelt of urine.
There were no proper ablution facilities and no necessities like
toilet paper, soap and washing rags.
The toilet in the cell did
not offer any privacy. Anybody using it was in full view of the other
cellmates.
[206]   The food was deplorable.  The plaintiff stated that
he forced himself to eat it just to stay alive.
[207]   His arrest was performed in a degrading, inhumane and
humiliating manner – in front of his neighbours and family

members.
[208]   The aftermath of his arrest and detention was that
despite the fact that charges against him were not continued with,
he
still remained with a stigma that led to even his close family
treating and looking at him as if he was a leper. That hurt,
he said.
[209]   I have thoroughly assessed the circumstances of this
matter and considered what the appropriate
solatium
should
be.  What happened to him was a drastic invasion of his liberty
and right to physical integrity and dignity.
[210]
As Nugent JA put it in
Minister
of Safety and Security v Seymour
[27]
the assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty.  The
facts of
a particular case need to be looked at as a whole and few cases are
directly comparable.  They are a useful guide
to what other
courts have considered to be appropriate but they have no higher
value than that.
[211]   Viewing the facts and circumstances of this case as a
whole, it is this Court’s finding that the plaintiff was

wrongfully and unlawfully arrested and detained by the defendant’s
employees who were acting within the course and scope
of their
employment with the defendant.  He is entitled to compensation.
My view is that the amount of R140 000 is the correct
or appropriate
solatium
for his suffering.
ORDER
[212] In the circumstances, I make the following order:
1.
The
defendant is ordered to pay the plaintiff the amount or sum of R140
000,00 (one hundred and forty thousand rand).
2.
To
further pay interest on the said sum of R140 000,00 at the rate of
15,5% per annum
a
tempore morae
from the date of issue of summons herein to date of final payment.
3.
The
defendant is also ordered to pay the costs of the action.
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE PLAINTIFF ADV A BESSINGER
INSTRUCTED
BY BESSINGER ATTORNEYS
JOHANNESBURG
TEL
NO:  011 615-7098
FOR
THE DEFENDANT ADV S SITHOLE
INSTRUCTED
BY STATE ATTORNEY
JOHANNESBURG
TEL
NO:  011 330-7641
DATE
OF HEARING 23 JULY 2014
DATE
OF JUDGMENT04 AUGUST 2014
[1]
Act No
51 of 1977
[2]
Ralekwa
v Minister of Safety and Security
2004 (2) SACR 342
(T); See also
Tsose
v Minister of Justice and Others
1951 (3) SA 10
(A) at [17];
Duncan
v
Minister of Law and Order
1986 (2) SA 805
(A) at 830
[3]
40(1)(b)
of the Act
[4]
Aref
v Minister of Police
1997 (2) SA 900
(A)
[5]
Brand
v Minister of Justice and Another
1959 (4) SA 712
(A)
[6]
Act
108 of 1996
[7]
2008
(1) SACR 56
(CC)
[8]
Supra
[9]
1974
(4) SA 420
(W)
9a
[10]
Bullet
34 of Judge’s notes (complainant’s cross-examination)
[11]
Bullet
35 – complainant’s cross-examination
[12]
2011
(5) SA 367
(SCA)
[13]
Case
No 41312/12, North Gauteng High Court on 3 May 2014
[14]
1991
(1) SA 702
(E) at 707B
[15]
2
nd
Edition at page 475
[16]
2009
(5) SA 85
(SCA) at 93d-f
[17]
2006
(6) SA 320
(SCA)
[18]
Supra
[19]
Supra
[20]
Case
1661/2009 (North West High Court) per Landman J
[21]
Case
10/43463 (South Gauteng High Court) per Hodes AJ on 30 August 2012
[22]
Case
No 5056/2011 (South Gauteng High Court) delivered on 8 March 2013
[23]
Case
No 20572/2011 (South Gauteng High Court) per Mphahlele AJ delivered
on 5 April 2013
[24]
Case
No 41403/11 (SGHC); Windell AJ, on 28 March 2013
[25]
Colin
Nelson v Minister of Police
(unreported SGHC case) Case No 41403/11 at para [6].
[26]
1957
(3) SA 284
(D) at 287.
[27]
Supra
at para [17]