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[2015] ZAGPJHC 106
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Mantjiu v Minister of Safety And Security and Another (01753/11) [2015] ZAGPJHC 106 (26 May 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No: 01753/11
DATE:
26 MAY 2015
In
the matter between:
MANTJIU
MOTIANG
JOSIAS
.................................................................................................
Plaintiff
And
MINISTER
OF SAFETY AND
SECURITY
....................................................................
1
st
Defendant
DIRECTOR
OF PUBLIC
PROSECUTIONS
.................................................................
2
nd
Defendant
JUDGMENT
FRANCIS
J
Introduction
1…
The plaintiff has instituted an action for damages against the first
defendant – the Minister of Safety and Security
and the second
defendant – the Director of Public Prosecutions, for wrongful
arrest and detention and malicious prosecution.
This was after
he was arrested on 23 January 2008 for being in possession of a
suspected hijacked motor vehicle. He had applied
for bail which was
refused and on 18 June 2009.  On 6 March 2009 he was acquitted
in terms of section 174 of the Criminal
Procedure Act 51 of 1977 (the
CPA).
2.
The plaintiff has withdrawn his action for malicious arrest,
detention and prosecution at the commencement of arguments.
3.
The plaintiff called Tembelihle Matrina Dlamini his attorney of
record as his first witness.  She was admitted as an attorney
in
1996.  She testified that during June 2008 she received
instructions from the plaintiff to bring a formal bail application
on
his behalf.  This was her only involvement in the criminal
trial.  She consulted with the plaintiff at the Boksburg
prison
and the bail hearing was set down for 18 June 2008.  She had
prepared an affidavit in support of the bail application
which he
signed on the morning of 18 June 2008.  The affidavit which
appears at A238 to 243 was read into the record.
The
plaintiff’s bail application was opposed by the prosecutor who
had read into the criminal trial record an affidavit that
was deposed
to by the investigating officer, Cornelius Maphumulo.  That
affidavit appears at pages A245 to A246.  She
is not certain
whether the prosecutor who had opposed the bail application was the
same prosecutor who appeared at the criminal
trial since she did not
represent the accused at his criminal trial.  The bail was
opposed on the grounds that the plaintiff
was being investigated in
other matters for armed robberies that had taken place in Alberton
and that he was a suspect.  Further
that he was a suspect in an
attempt to hijack a motor vehicle.  She was not given a copy of
the affidavit which was handed
into court.  Bail was thereafter
refused by a magistrate.  The plaintiff was represented by an
attorney appointed by
Legal Aid South Africa at the criminal trial.
4.
During cross examination Ms Dlamini said that the plaintiff told her
that he was arrested on 23 January 2008 and she had consulted
with
him only in June 2008.  She does not recall when the plaintiff
had made his first appearance at the Tembisa Magistrate’s
court
but had told her that he had applied for bail which was refused on
the grounds that it was a Schedule 6 offence.  She
made his
first formal bail application on 18 June 2008.  The prosecutor
said that he was opposing bail because the plaintiff
was a suspect in
bank robberies in Alberton.  The magistrate then refused bail.
The plaintiff remained in custody until
his acquittal.  He had
previously requested bail and it was refused and he then instructed
her to bring a bail application.
He complied with the formal
bail application only in June 2008.  During re-examination Ms
Dlamini said that she had made a
mistake and said that the prosecutor
had said that bail was opposed since the plaintiff was a suspect in
bank robberies and not
armed robberies as she had testified to in her
examination in chief.
5.
The plaintiff Motiang Josias Mantjiu testified that he was arrested
on 23 January 2008 and had applied for bail on 18 June 2008.
He had
deposed to an affidavit in support of his bail application which is
at A238 to 243.  He said that on 23 January 2008
he went to
visit his child Nhlanhla at Emfihlweni section in Tembisa.  He
found her and from there he went to Siziba section
also in Tembisa
and found that his friend Ndini was not there.  He then drove to
Esangweni section in Tembisa to see Mzwakhe
Mahlangu but there was no
one there.  He then telephoned Mzwakhe who told him that he was
at one Zab’s place to cut
a key.  He went there to fetch
him and drove with him back to his place.  On their way back he
met one Samuel who was
driving a motor vehicle.  Mzwakhe stopped
Samuel.  One Sizwe was with Mzwakhe.  Mzwake got out of his
car and went
to Samuel’s car and Sizwe remained with him in his
car and they followed each other.  When they got to Mzwakhe’s

place, he got out of his vehicle and spoke with Mzwakhe in his yard.
He then told him that he was leaving to watch a soccer
match and then
left.  When he was about 500 meters away from Mzwakhe’s
place, he was stopped by the flying squad police.
They took out
firearms and a black policeman switched off his car and told him to
get out of the car and he lay in the street whilst
they were pointing
their firearms at him. He was handcuffed with his hands behind his
back.  There were three policemen in
a Jetta flying squad, two
black males and a white policeman.  The police vehicle was
driven by the white policeman.
Another policeman set in front
and another at the back.  His vehicle was switched off by a
policeman who sitting at the back
of the police vehicle.  It was
a marked police vehicle.  Whilst he was laying in the road,
other police came in vans
and he was asked where Mwzakhe was and he
told them that he was at his parents place.  He the plaintiff
was driving a Mazda
323 vehicle. He had visited his daughter at 15h00
and was stopped by the police between 16h30 and 17h00.  The
other police
then went to Mzwakhe parents place and they had known
where it was and he was left with the flying squad policemen.
After
the other police had left, the flying squad police lifted him
up. They searched him and his car and nothing was found or removed.

He was then put into the back of flying squad vehicle and another
policeman drove his car and they went to the old Esangweni section.

He was stopped at the new Esangweni section.  When he was
stopped, the police had spoken about a hijacked vehicle.  They

told him that he had hijacked the car and he had asked him what car
they were referring to and they said that he knew about which
car
they were talking about.  They did not say anything else to
him.  When they got to old Esangweni section the police
stopped
next to a light green Toyota Corolla and the white policeman told him
that he had hijacked that vehicle.  He told
him that he did not
know that car and was seeing it for the first time.  The police
arrived in many police vans and he saw
Mzwakhe, Sizwe and Samuel.
The three of them came out of one police van and were put into a
police Venture.  A policeman
drove the Toyota Corolla and they
were taken to the Tembisa police station.  He was in the flying
squad vehicle when he was
taken to the Tembisa police station.
6.
The plaintiff testified further that when they arrived at the Tembisa
police station, where he was taken to a toilet by a white
and black
policeman.  He was assaulted by the two policemen.  It was
the same police who had handcuffed him and pointed
firearms at him at
the place where he was arrested.  He was hit on his body and he
fell down and was kicked by both policemen.
The white policeman
than asked his colleague if he did not want to urinate.  He told
him that he wanted and urinated in his
face.  This was whilst he
was laying on his back with his hands cuffed behind his back.
He was beaten with their hands
and was also kicked with their boots
and the beating lasted for between 30 to 45 minutes.  Whilst he
was been beaten, they
told him to tell the truth and he said that he
knew nothing about the car. The white policeman took out a pocket
knife from his
waste inside a key holder and tore of his belt and
trouser.  Another black policeman came in with Mzwakhe and took
his belt
and the three policemen beat Mzwakhe in his presence.
When they tore his belt and trouser, he was holding his trouser at
his back and was still wearing it.  When they assaulted Mzwakhe,
he the plaintiff was laying on the floor and after they had
finish
assaulted him they took them to an office inside the Tembisa police
station.  They found three other black officers
in that office.
They were working at the Tembisa police station.  They wrote
down their details and showed them papers
which contained their
rights which document he recognised as the one at A206.  He
signed the documents that he was informed
of his rights.  He did
not read the contents of the document.  They filled it in and
read it to them and told them to
sign it.  They told them that
they could get lawyers if they wanted to and that is all that they
told them.  On top of
page A206 the heading is Notice of their
Rights in terms of the Constitution and the reason for their
detention.  They were
told that they were being detained due to
the hijacked vehicle.  After they had signed page 206 they were
taken to the Tembisa
police station cells where they were detained.
7.
The plaintiff testified that the toilet in the holding cell was not
flushing.  They were given dirty blankets to sleep on.

They were 16 people in the cells.  He made use of the toilet.
It had a bad smell and the other inmates told them that
once they had
used the toilets they should place a blanket over the seat to cover
the toilet since it did not flush.  He did
not receive any food
on 23 January 2008.  He received water and food on 24 January
2008.  They were taken out of the
cells where they were given
food and went into the cells to eat the food. He was given bread and
tea in the morning at 7h00 and
at 12h00 he was given porridge with
mince.  They got nothing in the evening.  He was not taken
to hospital or to a doctor
for the injuries that he had sustained.
He was not taken to hospital or to a doctor for the injuries he had
sustained in
the assault.  When he had asked that he be taken,
he was asked what prisoner knew of a doctor.  He was bleeding
from
his anus.  The medical condition that he had when he was
arrested was gout and nothing else.  Whenever he gets gout he

takes medication and would drink 3 tablets a day.  When he was
arrested, he had no gout.  He was taken to the Germiston

Magistrates Court on 25 January 2008 and his case was remanded for
seven days.  He had asked for bail but the prosecutor told
him
that he could apply for bail at his second appearance.  He was
sent to the Boksburg prison.  They were 30 inmates
at the
Boksburg prison and they were given a sponge and sheets for bedding.
The sheets came from the laundry and the sponge
was dirty.
There was a toilet in the cells and it was working and flushing and
all 30 inmates had to use it.  They had
a shower and there was
hot water at 3h00.  They ate twice a day, in the morning at 7h00
and at 12h00.  In the morning
they received bread, porridge and
tea.  At 12h00 they had porridge with fish or meat.
He said that
A199 to 200 is a warning statement that he
had made to Maphumulo who wrote it down on 24 January 2008.  It
states that he
was being investigated for carjacking and said that he
does not know whose handwriting appears at A200.  The statement
was
written by the inspector.  It is stated at the end of A199
whether he understands the alleged crime mentioned and the warning

and the answer given is yes.  He said this was written by the
inspector.  He the plaintiff’s signature appears
on the
right side of the page.  He was not given an opportunity to read
it before he signed it.  He signed it after he
was told to do
so.  He told the inspector what had happened on 23 January 2008.
8.
The plaintiff testified that seven days after 25 January 2008, he
again appeared in court.  The case was remanded and he
raised
his hand and was asked by the magistrate what the problem was.
He told him that he was asking for bail and the prosecutor
said that
it was a schedule 6 offence and that he would not get bail and should
return to the Boksburg prison.  He said that
he was not certain
whether it was the same prosecutor who had appeared on 25 January
2008 and also at the criminal trial, since
the courts were changed
where he had applied for bail to another court for trial.  It
was however the same prosecutor who
had appeared on 25 January 2008
and seven days later when he appeared again in the Germiston
Magistrate’s court.  The
conditions were the same at the
Boksburg prison as before and he was kept in the same cell.  He
was allowed to receive visitors
at the Boksburg prision. He does not
remember on which day his third appearance in court was and they kept
on postponing his matter.
When his wife came to visit him in
prison in March 2008, he told her to get him a lawyer for his bail
application.  He had
appeared in the Germiston Magistrate’s
court about five times and on the sixth occasion, it was for the bail
application.
The reason given for the various postponements was
that they were still investigating the matter.  Whilst he was in
prison
his attorney of record came to visit him in May 2008 and he
gave her his statement. He told her what had happened.  She left

and he later received a court date.  He went to court on 18 June
2008 and she came to see him in the cells with a policeman.
She
read to him his statement which he signed in the presence of the
policeman who was a commissioner of oaths.  The affidavit
is at
A238 to 243 and his signature is at A242.  He then appeared in
court.  The matter proceeded and the prosecutor
said that he
would not get bail because the investigating officer said that he was
involved in bank robberies and there were outstanding
bank robbery
cases.  His attorney had first addressed the court and was
followed by the prosecutor.  He said that he
does not have any
outstanding bank robbery cases.  The magistrate then ruled that
bail was denied and that he must return
to the Boksburg prison.
He later went back to court when his matter was remanded.  His
trial commenced on 8 November
2008.  They were four accused at
the trial.  He was accused 2.  Accused 1 was Mzwakhe
Mahlangu, accused 3 was Sizwe
and accused 4 was Samuel.  The
charge against them was the robbery of a Toyota vehicle with
aggravating circumstances in that
on 23 January 2008 they assaulted
van Niekerk  and robbed her off her vehicle, her cellphone and
her handbag was taken and
a firearm was used.  He pleaded not
guilty to the charge.  Van Niekerk testified in court on 5
November and had only
identified Mzwakhe in court as the person who
had robbed her.  She said that she had only been robbed by one
person.
She testified that Mzwakhe entered her yard and she saw
him through the rear mirror and he came running and held a gun and
when
he got to the vehicle, he opened it and pointed her with the
firearm and told her to get out of
it.  She got out of
the vehicle and he reversed out and closed the gates whilst she was
inside the yard.  He left with
her remote gate keys and house
keys.  The next person who testified was Magoedie who is an
inspector at the police.
He testified that he found the four of
them inside the Toyota Corolla.  Mzwakhe was in the front driver
seat and the cellphone
was found at this place and the keys in his
pocket.  He said that they had also found a handbag at
Mzwakhe’s place. He said that he had found
the plaintiff at the back seat of the vehicle but was not sure on
which side. He
did not testify that he had spoken to him.  He
said that they had arrested people in the hijacked vehicle.  The
prosecutor
had asked Magoedie about him and he said that he was
searched by another policeman from Tembisa police station,
Netshivhodza who
had passed away.  Magoedie was not part of the
flying squad police.  The state then closed his case and his
attorney
applied for his acquittal which was not opposed by the
prosecutor.  He, Sizwe and Samuel were acquitted.
9.
The plaintiff testified that he was born on 17 May 1963 and will be
turning 52 years on 17 May 2015.  In January 2008 he
was 44
years old and was and is still married with two children who are 29
years and 22 years old respectively.  He said that
when he was
arrested, he can say that his wife and children were depended on
him.  He is not working but was doing odd jobs.
He was
driving school children to school and would go to the Johannesburg
market.  His wife is a nurse and his children are
employed.
He went up to standard 9.  He said that when he was arrested he
had gout and during his detention he had gout.
The prison did
not have medication for gout and his wife brought him medication.
He had no special diet for gout at his house.
He was acquitted
on 5 March 2009.
10.
During cross examination the plaintiff said that he was saying that
he was unlawfully arrested and detained by members of the
South
African Police and that he is also claiming that he was maliciously
prosecuted.  He agreed that at B5 in paragraph 12.1
he was
claiming that he suffered loss of income in an amount of R100 000.00
and it is stated in paragraph 1 of his particulars
of claim that he
was employed.  When the particulars of claim were drafted, he
was not working and at the time of his arrest
he was not formally
employed but did piece jobs.  He was asked how the sum of
R100 000 was computed and he said that
the jobs depended on how
long he did them.  He agreed that he did not provide the court
with payslips and bank statements
to show how much he earned since he
did not know that he would be arrested.  When it was put to him
that he did not tell the
court how much he was earning, he said that
the court did not ask him how much he was earning.  No one had
asked him how much
he was earning when he did piece jobs.  He
had no response when it was put to him that the court would be asked
to dismiss
his claim for loss of income.  He agreed that in
paragraph 12.2 at B5 he is claiming R20 000.00 for legal costs
and that
he did not provide any proof of the fees from his attorney
and that there was nothing before court about it.  He said that

he was not asked the question about how much he had paid his attorney
and was only answering the questions that were put to him.
He
said that he does not know that his claim for legal costs should be
dismissed and does not know that there is nothing before
court about
how much he had paid as legal costs. He confirmed that he testified
that he was charged with aggravated robbery and
that there were four
accused and that they all had pleaded not guilty. The charge was that
they had hijacked a complainant at gunpoint
on 23 January 2008.
He confirmed that he was questioned about his bail affidavit and that
he had signed it before a commissioner
of oaths.  He had told
his attorney everything
about
how he was arrested and she wrote down everything. She prepared his
affidavit and he read it before signing it. He agreed
that at A241 at
paragraph 12 he said that he was in custody since 23 January 2008 to
date and is suffering from gout and high blood
pressure and had
received medical treatment for it at Prime Cure, Ebony Park, Midrand.
He agreed that when he testified he did
not say that he has high
blood pressure but he has it. When asked why he did not tell the
court about it, he said that he became
aware of it at Boksburg. It
was put to him that this was something new which he did not tell the
court and said that he was expecting
the court to ask if he had any
sickness when he was in prison. Prime Cure is outside prison. When
asked why he did not mention
high blood, he said that he was telling
himself about other illness and he became aware of it whilst he was
in prison. He was asked
if he received medication for high blood at
Prime Cure before he went to prison. He said that he may have made
and had forgotten
about it. It was put to him that it is not clear
whether he was dishonest at the time when he made his affidavit or
when he testified
in court. He said that he was honest. He was asked
why he said that maybe he made a mistake and had forgotten about it.
He
said that it refers to the high blood.  He was asked what
mistake he was referring to and said that when he made the affidavit,

he was at the Boksburg prison.  It was put to him that high
blood is an illness that you would not forget easily and takes

medication to control it.  He said that he knows that and when
it starts he did not know that he had it and he became dizzy
and was
sweating.  He denied that he received medical treatment for it
at Prime Cure but got it at prison.  He was getting
treatment
for the gout.  He was asked why he had referred to both in his
affidavit and he said that it was maybe his mistake
and it was not
put in the correct way.  It was put to that he was not honest to
this court and the court
a quo
about
his sickness and he said he could maybe bring his records to see when
he had started to suffer from which illness.
11.
The plaintiff said that the statement at pages A200 and 201 was wrong
and that his signature is on it and is dated 24 January
2008. It was
signed at 11h04.  He signed it after he was arrested and he
wanted to make a statement.  It is recorded
that he wanted to
make a statement and that the decision to do so was his own choice
and he made it out of his own choice and he
said that he was not
threatened or assaulted.  He agreed that he testified in court
that he was assaulted and in his statement
he said that he was not
assaulted.  He was asked why he said that he was not assaulted.
He said that the problem was
that when he was arrested, he was not
asked the question and he was told where to sign and he did as he was
told.  It was
put to him that the investigating officer would
testify and said that he read everything and wrote it down and he had
said that
he was not threatened or assaulted.  He said that when
he was assaulted, the investigating officer was not there and came
there the next day with the form and told him where to sign which he
did.  It was put to him that he was not assaulted.
He
repeated that he was taken to the toilet where he was assaulted.
It was put to him that in his warning statement at A201
he did not
mention that he was assaulted and failed to tell his lawyer that and
this suggest that he was not assaulted.  He
said that he did not
write the statement at A201 but it is his.  He was told where to
sign and does not know what he signed.
It was put to him that
he testified that it was read to him after it was taken down and he
said that he did not say that but it
is his signature.  He could
not point out where in his warning statement it was stated that he
was assaulted.  He was
alone when he gave his warning
statement.  (The parties reached an agreement that the
transcript of the criminal proceedings
in the Regional court which is
at A10 to A147 is admitted as evidence between the parties).  He
confirmed that the signature
at A201 is his.  He was asked
whether he had said in his statement that he was assaulted and said
that he was not the author
of the statement.  It was put to him
that in his statement he does not say that he was assaulted by the
police.  He said
that he does not know what the author of it had
written down.  It was put to him that he did not say that he was
assaulted
and that he was not assaulted.  He said that even if
he was assaulted by the police, they did not agree that he was
assaulted
by them.  He said that he does not know why no amount
was claim for assault in his particular of claim or there is no
reference
made that he was assaulted.  He said that if he was
allowed to see a doctor, there would have been evidence that he was
assaulted
but he was denied that opportunity.  It was put to him
that if he was assaulted he would have told his attorney who would
have claimed for it and it was not there so it was an afterthought.
He repeated that he was assaulted and knows that he was
and Mzwakhe
would come and testify that he was assaulted.  He did not lay
criminal charges against the police for assaulting
him.  It was
put to him that there was no J88 medical report from the doctor about
the fact that he was assaulted.  He
said that it was not there
and he had not seen a doctor.  It was put to him that he did not
lay criminal charges since he
was not assaulted.  He said that
he wanted to see a doctor but was refused to do so.  It was put
to him that he was not
assaulted and that is why he did not open
criminal charges against the police for the assault.  After a
long pause and with
no answer he said that he was not being asked a
question.  It was put to him that he was not assaulted and it
does not appear
in his warning statement and he signed that he had
not been assaulted.  He said that he does not know how to answer
it but does not agree.
12.
It was put to the plaintiff that he testified that he was from
Mzwakhe’s place and was with Sizwe and Samuel when he was

arrested.  He said that he did not say that and had said that
when he was arrested he had left Sizwe, Samuel and Mzwakhe at

Mzwakhe’s place and was about 600 meters from Mzwakhe’s
place when he was arrested.  He was asked how he was stopped.

He said that the police did not flicker their lights.  They were
hiding and as he was driving,  they drove in front of
him and he
had to apply brakes and they pointed guns at him.  There were no
other cars in front and behind him.  When
the police arrived
there, he did not know them and was surprised.  He was asked
where
Mzwakhe
was and he said that he was at his mother’s place.  He was
asked how police who did not know him, stopped him
and had asked him
about Mzwakhe.  He said that the police stopped him and ordered
him out of the car and told to lie down
and he was handcuffed and
other police came and asked him about Mzwakhe. He was initially
stopped by three police one of whom opened
his door and told him to
get out and lay down and then handcuffed
him.
The other police came in many police vans and he did not count them.
He then heard voices asking where Mzwakhe
was and he also did not
count the voices that enquired about Mzwakhe.  He did not know
the police who were in the vans.
He was asked how they had
asked him about Mzwakhe.  He said that the police were called
because they had seen his car at Mzwakhe’s
place and they then
asked him where Mzwakhe was.  After they had asked him about
Mzwakhe, the police left and went to Mzwakhe’s
place and the
other police picked him up and put him into the flying squad police
vehicle.  He saw the police driving towards
the street where
Mzwakhe was staying and he assumed that they went to his place.
It was put to him that police officer Magoedie
was involved in his
arrest and would say that he was found in the hijacked vehicle.
He said that he would not be telling
the truth.  It was put to
him that he would further say that he was searched and in his pocket
they found a live ammunition.
He said that he will not be
telling the truth and if he had found a live ammunition, it should
have been taken to the Germiston
Magistrate’s court.  It
was put to him that Magoedie would further say that he was involved
in his arrest and that he
was not assaulted.  The plaintiff said
that he arrested Mzwakhe and left with the flying squad police and
they had assaulted
him.  He was asked if he knows Magoedie and
he said that he saw him in court when he testified in the criminal
trial and was
the second state witness.  He was referred to A247
and was told that warrant officer Maphumulo, the investigating
officer
in the armed robbery case would testify that A247 indicates
that item 3 at paragraph 3.2 indicates that a live bullet and other

items in Tembisa case number 961/01/2008 was found and he said that
he saw it.  Six items were recovered from Mzwakhe and
the
plaintiff.  He said that on what was written on A247, the police
said that they found those items on Mzwakhe and at his
place.
It was put to him that this was proof that one live bullet was found
on him and he said that he disagreed.  He
agreed that his name
appears on page A247 and that accused 3 and 4 names are not on it.
The author of A247 was Netshivhodza
and his affidavit is at A210 and
he is deceased.   (There was an objection about the
affidavit and it was contended that
they could not cross examine on
it.   I ruled that the evidence can be provisionally be
allowed but that at the end of
the trial the parties could argue
about what weight could be placed on it).  The plaintiff said
that the statement was not
read to him.  He agreed that he sees
that at A247 reference is made to a live bullet and that the
investigating officer was
told what was found on them by the
arresting officer.    He said that he could see that
it is mentioned that a live
bullet was found and that what he was
told was not true.  It was put to him that a live bullet was
found in his pocket as
mentioned by Netshivhodza but he said that it
was not true.  He said that the cross examiner believed what he
was saying.
The affidavit of Magoedie that was read into the
criminal trial at A57 to A58 was also read into the record.  He
said that
he noticed that his name was mentioned. He said that he saw
that he stated that a life bullet was found in his pocket but that
was not true.
13.
The plaintiff agreed that he testified that he had applied for bail
and that in March 2008 he had spoken to his wife to get
him a
lawyer.  The bail application was made on 18 June 2008.  He
agreed that he testified that at his
second
appearance he raised his hand and wanted to apply for bail and that
the prosecutor said that it was a schedule 6 offence
and that he
would not get bail.
He
did not tell his wife at the second appearance to get a lawyer since
he did not see her often.  His family members came
to court when
he appeared in court.  He did not tell them in court to get a
lawyer to apply for bail because he was not allowed
to speak to
them.  From January 2008 to March 2008 his wife came to see him
and in March they decided that she must get a
lawyer.  His
attorney only got instructions in June 2008 but he does not know when
his wife spoke with the attorney. The bail
application was heard on
18 June 2008 and bail was refused by the magistrate after the
prosecutor had objected to bail been granted.
The Toyota
Corolla was about 1km away from where he was arrested.  It was
in the township and parked on the pavement in front
of the houses.
It was put to him that it was strange that they chose to arrest him
and left the others at house number 54.
He said that he does
not know and he was arrested and the others were arrested too and he
was somewhere else when he was arrested
and the car was at another
place.  It was put to him that it did not make sense that they
targeted him and it means that he
was found in the vehicle when he
was arrested and he said that it was not correct.  During
re-examination he said that the
life ammunition that was allegedly
found in his possession was not produced at the criminal trial and he
was not charged with being
in possession of it.
14.
The first witness called by the defendants was Cornelius Bongani
Maphumulo. He testified that he is working at the SAPS Benoni
vehicle
crime investigation and has been in the police for 26 years.  He
is a warrant officer and is still based in Benoni.
His duties
are investigations.  When he investigated the plaintiff and
three other accused, he was still at Benoni and they
were charged
with armed robbery.  He found statements in the docket and
obtained his own statements.  The first statement
that was in
the docket was that of the complainant of the car and the statements
of the police who arrested the suspects and documents
dealing with
their constitutional rights.  The arresting officers were
Magoedie and Netshivodhza whose statement is at A210
and is
deceased.  He was shot and killed. This is one of the statements
that he found in the docket.  He had an opportunity
to
investigate the complaint in this matter.  He had read
Netshivodza’s statement which is at A210 whilst he was
investigating
the matter. It states that he got a report that the
vehicle was taken at gunpoint in Kempton Park.  He was at work
and whilst
patrolling in Tembisa, they came across a vehicle and
found people in the car that was reported hijacked.  He and his
assistant
approached the car and saw it was the vehicle that was
stolen and they introduced themselves.  They then searched the
persons
in the vehicle.  The person who was in the driver’s
seat had car keys on him and they found a live bullet on the person

who sitting in front of vehicle in his trouser pocket.  That
person was accused 2 who is the plaintiff.  They arrested
them
and took them to the police station and booked in the exhibit book
(SAP 13) that they had found the exhibits and the investigators
were
then called since they were dealing with vehicles to investigate the
matter.  A247 is what according to Netshivhodza
was booked in
that was found on the suspects.  He said that it could be
Netshivhodza’s handwriting and the person who
signed it in but
he is not sure who competed that.  (This is hearsay since he
does not know who the author of the entry on
A247 is).  He also
read the statement of Magoedie who explained and corroborated what
Netshivhodza said in his statement.
Magoedie’s statement
appears at A67 and the plaintiff applied for bail.  He produced
an affidavit that is at A245 when
the plaintiff applied for bail and
his signature appears at A246 and had opposed bail.  He did so
due to the nature of the
case because the motor vehicle was taken at
gunpoint and a short while later persons were found in possession of
the complainant’s
vehicle with her belongings.  With his
experience people who get bail do not attend the trial so it is
better if they remain
inside and they finish the case and they then
have to look for them after the court issued a warrant of arrest.
Where a person
is charged with a  schedule 6 offence, any
suspect has the right to get bail but he must apply for bail in court
which is
then set down for a hearing.  The plaintiff did not
apply for bail at his first appearance.  The prosecutor told him
that he is given 7 days to investigate to see if he was involved in
other cases.  He finally applied for bail which was denied.

It was put to him that the plaintiff said that he was arrested in his
own car and not in front of the hijacked car and was asked
what his
view was.  He said that he cannot dispute that since he was not
there and he was relying on the affidavits of the
police.
According to their statements, he was arrested in the hijacked
vehicle.  He said that if a suspect was arrested
in his vehicle
and has a passenger, the arresting officer would allow the person to
take the suspect’s vehicle back home
or take it to the police
station.  If the car is taken to the police station, it should
be booked into the SAP13 or in the occurrence
book.  He has no
idea if any entry was made in the SAP13 or in the occurrence book.
It is standard police rules and
regulations that it be recorded and
the person who took the car is accountable for it.  He said that
he does not agree that
the plaintiff was unlawfully arrested and
detained due to the nature of the case.  After he was found in
the hijacked car
which had been hijacked in less than a few hours in
it with live ammunition, he was lawfully arrested and detained.
15.
During cross examination Maphumulo confirmed that on 24 January 2008
the plaintiff made a warning statement before him.
He wrote
down the statement in his own hand.  In it the plaintiff said
that he visited Mzwakhe during the afternoon of 23
January 2008 and
that Mzwakhe had told him that he bought some keys at a shop.
He and Mzwakhe then came across Samuel as
they were going to
Mzwakhe’s place.  They then went to Mzwakhe’s home
and the plaintiff then left Mzwakhe’s
place to go to his home.
On his way to his house he was stopped by the police.  He was
handcuffed and asked about the
hijacking.  Mzwakhe, Samuel and
Sizwe were also arrested.  The plaintiff, Mzwakhe, Samuel and
Sizwe were taken to the
Toyota which is the hijacked vehicle and were
told that it was hijacked.  The plaintiff said that he did not
hijack it and
it was the first time that he had seen it.  He
agreed that the warning statement contained information that he was
not involved
in the hijacking.  It also states that he was not
in possession of the Toyota.  He investigated the contents of
his warning
statement by looking at the statements of the people who
arrested him and the suspects’ statements.  Based on the
statements of the arresting police officers and of
the suspects he decided that the plaintiff’s statement is a
lie.
He was asked what in the other warning statements
indicated to him that the plaintiff lied.  He said that he
looked at the
statements of the police who arrested them and he
listened to what the plaintiff told him and it was totally
different.  It
was put to him that he was changing his version
and had said that he looked at the statements of the arresting
officers and the
suspects and he was now saying that he only looked
at the police statements.  He said that he relied on the
statements of
the police who arrested them.  It was put to him
that he was changing and had said that he was relying only on the
statements
of the arresting officers and not of the accused. He said
that he was changing nothing and he only relied on the statements of
the arresting officer.  It was put to him that in deciding that
the plaintiff lied, he only relied on the arresting officer’s

statement and the warning statement of the other suspects and that is
what he testified. He said that he want to repeat that he
relied on
the affidavit of the arresting officer and he decided that the
plaintiff is lying and not telling the truth.  He
was asked what
the purpose of a warning statement is.  He said that it warns
and tells him of his rights and if he wants to
give an explanation,
he could do so and write it down and explain it in court.  That
statement is not under oath.  He
was asked if he should not
investigate whether his statement is true or not.  He said
agreed and he said that there was a
time when he said that there was
no collaboration.  He was asked if he said in his statement that
he was travelling in his
own vehicle.  He said that he does not
remember.  He said that there was a discrepancy between their
versions namely
the police said that they found him in the hijacked
car and the suspect disputed this and said that he was found in his
own vehicle.
He did not look at what had happened to the
plaintiff’s vehicle.  He said that he only believes what
the police officers
tell him.  He said that the role of a police
investigating officer is to identify how the crime happened and it
depends on
the case at the time.  He agreed that he must be
objective and it would depend on the case that was being investigated
at
that time.  In this case, he accepted the police version as
the gospel truth.  He agreed that he saw that Magoedie said
that
there were 4 suspects and Netshivodza said there were 3.
He was asked if he asked them to clarify it.
He said that he
spoke to him and by the time he clarified it.  He did not record
what he had said.  He agreed that he
would agree as an
investigating officer had a duty to investigate all the information
relevant to the plaintiff’s guilt in
this matter.  He
agreed that his investigations must be noted in his investigation
diary or pocket book or statements under
oath.  He said that he
does not remember whether after he had written down the warning
statement if anybody could verify his
whereabouts at the time of the
hijacking and if he did so he would have noted that.  He said
that he would not deny if it
is stated that there was no such a note
in the docket if anybody could verify his whereabouts in the
hijacking.  It was put
to him that there are no such notes since
he did not ask him about his whereabouts during the hijacking.
He said that he
does not remember if he asked him and would not
dispute the question.  He was asked whether he was saying that
he did not
ask him and said that he does not remember if he did not
ask him or not.  He does not remember speaking with any of the
plaintiff’s
relatives to verify his whereabouts during the
hijack.  He agreed that there was
no
note in the investigating diary or docket that he interviewed the
relatives since there was no reason to do so.  It was
put to him
that he had to do so since it was his duty to investigate all
information relevant to the plaintiff’s guilt or
not. He said
that he investigated the information that he gave him and concluded
that it was not true.  He had read the statements
of the
arresting officers and spoke with them and did the investigations and
after that he said that there was no vehicle pointed
at the police or
on the SAP13.  It was put to him that he did not testify that
and when he was asked if the entries made on
the SAP13 or occurrence
book and he said that he had no idea about his vehicle and had said
not.  He said that if the car
was there he would know but he has
no idea.   He was asked what he has no idea of and he said
that it was because no
car was booked in on the SAP13 only the
bullets and cellphones were booked in.  It was put to him that
he said that he had
no idea if an entry was made onto the SAP13 or
occurrence book but he was now saying that here was nothing.  He
said that
as an investigating officer if a person thing is disposed
and as an investigating officer he must be involved in such disposal
and there was no car when it was disposed.  It was put to him
that he was not testifying about but what is supposed to be done.

He said that he was not contacted by the police that a car was given
to the friend or relative.  The only thing that he was
informed
was about the belongings and was informed about what he has
testified.  It was put to him that the plaintiff told
him in the
warning statement about the car.  He agreed and said that the
police told him of it. It was put to him that it
was his duty to
investigate.  He said that if the police told him that he was in
the car, he would have asked what happened
to the car.  It was
put to him that he was admitting that he did not investigate whether
the plaintiff’s car was there
and he said that he investigated
and all the necessary information was in front of the court and he
believed the information that
he found from the police.  He was
asked how he investigated the whereabouts of the plaintiff’s
vehicle.  He said
that he heard people saying that he was
arrested and was a suspect in the car and that there was no other
car.   It was
put to him that the plaintiff informed him
that he was not arrested with Mzwakhe, Samuel and Sizwe and he was
asked if he tried
to trace the other police who might have arrested
the plaintiff.  He said that in the docket there was the
statement of the
arresting officers who said that they arrested 4
suspects inside the vehicle.  He said that he does not know
whether the flying
squad was involved and if they were involved they
would have been involved as manpower.  Mogoedoe could testify
about whether
if they were involved there would have been records of
it.  It was put to him that according to the plaintiff he said
that
he was arrested by flying squad members and he was asked what
they were supposed to do.  He said that they were supposed to

put statements in the docket and they would have made statements.
The two arresting officers were from the Tembisa police
station.
He agreed that he had to note the investigation in his investigating
diary or pocket book or statements.  He
agreed that he
interviewed Netshivodza and Magoedie about their statements.  It
was put to him that there was no mention made
in the docket of such
an interview with the two of them.  He said that he cannot deny
it but he interviewed them and he needed
to communicate with them
since they were his witnesses.  He was asked whether he had
asked the plaintiff to substantiate what
he said in his warning
statement.  He said that he does not recall that but it is his
right to tell him to give him proof about what had happened.  He
agreed that he spoke
with Mzwakhe, Sizwe and Samuel and Mzwakhe’s
warning statement is dated 24 January 2008.  He agreed that
Mzwakhe said
that he was with Samuel and Sizwe when he was arrested.
It was put to him that that supports the plaintiff’s statement

that he was not with the others when he was arrested and he agreed.
He agreed that Sizwe made his on 24 January 2008 and
he also
indicated that he, Mzwakhe and Samuel were arrested separately from
the plaintiff.  He agreed that he testified about
the statement
of Netshivhodza who was the arresting officer who found a life bullet
in his trouser pocket.  He was asked to
look at A210 and was
asked where in it does it mention that it was found in his pocket and
where did he get the information that
it was found in his right
pocket.  He said that he had said that he had some doubts but
had said that the ammunition was found
in his right pocket but was
doubtful and they were talking.
16.
Maphumulo was referred to A245 which was his affidavit opposing bail
in the third paragraph where it is stated that unknown
black males
pointed and threatened the complainant with firearms and was asked
whether that was correct.  He said that it
was.  It was put
to him that it was stated that the complainant was pointed with
firearms by unknown males.  He said
that he can explain black
males and she said that she was approached by one male.  It was
put to him that he knew that she
was hijacked by only one male but in
his affidavit he said that by unknown males.  He agreed and said
that the
modus operandi
of
hijackers is that there would be other people around and that the
complainant saw only one person.  It was put to him that
he was
not required to testify about how the system worked but how she was
hijacked.  He said that it was true but he had
to tell the court
how they operate and there were others with him.  In that area
there were many people who were hijacked
and they use the system and
do not approach the victim alone.  He was asked how many people
had approached the complainant
in this matter and said that he does
not have any idea about how many of them were involved but the
complainant said that she was
approached by one person.  He was
asked why he had stated in his affidavit that she was approached by
unknown black males
with firearms.  He said that it was clear to
him when she told him that she said that she was approached by one
black male
and had heard other voices.  He was asked if the
question of other black males was correct as stated on A245 and he
said that
it could have been a mistake in English but he believes
that others were involved.  He was asked why he had included
that
in his affidavit opposing bail.  He said that he erred when
he said that they pointed her with firearms and was made aware
that
others were helping him.  He was asked why he did that and what
his intention behind that was.  He said that in
terms of the
modus operandi
Mzwakhe
was there with other suspects.  He agreed that Netshivhodza said
that Mzwakhe was seated in the Toyota’s driver’s
seat
when he was arrested.  It was put to him that that fact was not
put in his affidavit when he opposed bail.  He said
that he
might have left it out.  He agreed that the complainant’s
cellphone and handbag was found at Mzwakhe’s
house and that he
did not mention this in his affidavit.  He agreed that the two
accused said that the plaintiff was not with
them when they were
arrested and this was not stated in his affidavit.  It was put
to him that there was no evidence in the
docket that linked the
plaintiff to the hijacking and he said that there was and this was
because he was found in the hijack vehicle
with a bullet and the car
was taken at gunpoint and he may have used that ammunition in the
gun.  He was asked if he knows
where the firearm was that was
used in the hijacking.  He said that he did not find it.
He agreed that he did not state
that the plaintiff had given him an
exculpatory warning statement that he was not involved in the
hijacking.  He agreed that
he said that he got some information
from other police departments about the suspects.  That
information is contained at A244
and is correct.  He had
concentrated on this in his affidavit.  In the letter it is not
clear what his surname was but
this did not prevent him to inform the
court.  He realised that he was involved in robbery activities
but he had to give this
information to the court.  Josias name
appears on it and he had to tell the court so that it could take a
decision.
He agreed that he is not the only person with the
name of Josias but he had a suspect with the name Josias.  On 24
January
2008 he was investigating him for carkjacking.
17.
During re-examination Maphumulo said that the name on A244 is
Majitisa which is the same as on B1. The case number on the bail

application is 706/01/2008 which is the same case number on A148 and
on A244. The charge sheet was drafted by the prosecutor.
18.
The defendants second witness was Nelson Mahlangu who testified that
he is a regional prosecutor based in Pretoria and has been
a
prosecutor for 17 years.  When he dealt with the criminal
matter, he was at the Germiston Regional Court where he was the

prosecutor in a robbery with aggravating circumstances involving the
plaintiff.  He had received the docket before he proceeded
with
the matter.  The docket had already been screened by one of the
other prosecutor and there was a bail application that
was done by a
Mr Snyman and he dealt with the criminal trial in the regional
court.  He always had statements and there were
a couple of
police statements and the complainant who had been hijacked.
They had the statements of the police who had arrested
them and one
of them was Netshivodza who is deceased.  His statement is at
A210 and he read it.  He read those statements.
He does
not know when he had passed away.  He also consulted with
Magoedie and the complainant and other witnesses.
Magoedie
testified as reflected at A67.  When he consulted with Magoedie,
he said that he had arrested the suspects in the
hijacked Toyota
Corolla and found Mzwakhe who was convicted and sentenced to 17
years. In the plaintiff’s pocket one life
ammunition was found
and all four persons were free of injuries.  All four accused
stood trial.  The evidence was based
on the statement of
Magoedie, Netshivodza, the plaintiff and the statement of the
investigating officer in the bail application.
Mzwakhe was
convicted and sentenced to 17 years and the others were acquitted in
terms of section 174 of the CPA.  He said
that when he received
the docket it was trial ready. If a docket comes to court as a new
matter, it goes to the control office
and they read it and screen it
to see of it everything is ready to proceed with and if they belief
that they have something against
the arrested person they would place
it on the roll for investigation etc. like legal aid and
investigation and not put it down
for trial.  It is not a trial
court and they do everything that is necessary and investigations and
when it is trial ready
it is sent for trial. The control prosecutor
was Ms Persunce who is now a magistrate in Orlando.  The ranking
is a control
or acting control prosecutor, and then a chief
prosecutor.  There is a senior prosecutor and a control
prosecutor.  He
was on the same level as a control prosecutor.
The control prosecutor does admin work and he does trials.  She
enrolled
that it be prosecuted after the investigations.  The
control prosecutor takes the decision to prosecute.  The docket
lands on her table and she peruses it and decides what to do.
If the matter is certified ready for trial, the trial prosecutor
can
still decide if the matter should proceed.  If he is not happy
he can go to the senior public prosecutor or the control
prosecutor
and tell them of the shortcomings and they will decide on it.
He is not a rubber stamp and needs authorisation
and he will give
them input on the matter.  By the time that he had received it,
it was ready for trial and he reasonably
believed that he could
proceed with the matter for trial.  He had seen the bail
affidavit and he believed that it was a fruitful
case to proceed with
and if he read the arresting officer’s statement, he had
something to work on and also Magoedie’s
statement.  Due
to the recent possession theory, and that he was arrested in a
recently hijacked vehicle they could convict
them on that and they
had something to work on.  He was asked what he had against the
plaintiff and said that he was found
in the car with a life
ammunition and a case for that was opened at Kempton Park. He said
that he does not have the date when it
was opened.  When asked
how he knew about it, he said that there was a unit of trio that was
investigating bank robberies and hijackings and he knew later about

it but he has not seen the docket.  He has no idea what the
outcome of that case was.  He said that A163 under 34, if
the
person was arrested in Tembisa it is the first police station and
because it is a trio matter it is taken to Kempton Park.
He was
asked the entry at 34 is about and he said that he was referring to
entry 33 at A163 and does not know what entry 34 at
A163 relates to.
He said that A247 which has a handwritten note of Kempton Park is the
same page as A163.  He was referred
to A120 where it is common
cause that the plaintiff and accused 3 and 4 were acquitted.  He
was asked why after the two state
witnesses had testified, he had no
objection to them being acquitted.  He said that you are as good
as your witnesses and
they had to reconsider and he was not
suggesting that they did not do something.  One must not only do
justice but it must
be seen to be done.  On paper they were
involved but the
viva voce
evidence
was something else and he was not given enough ammunition to fight
them on for accused 2, 3 and 4.  He said that he
had read the
warning statement of Maphumulo and they must institute litigation and
must proof the offence.  He does not use
the warning statement
of the suspects until they have passed the section 174 stage.
If
the three accused were not acquitted, he would have used the warning
statement.  He was asked what the position would be
if the
plaintiff was arrested in his vehicle and it was towed away by the
police.  He said that if he was arrested in his
car and it was
driven, the car should go to the police station and be booked on the
SAP13 but his car was not booked in and it
means that the car was
taken by the police and it was not there.  This is a procedure
to be
followed.
Any item found on the accused and even if money was found, it must be
booked in.  They must record the vehicle
at the police station.
It is standard police rules that they must record the vehicle on the
SAPS.  It was put to him
that the plaintiff said that he was
maliciously prosecuted.  He said that there is no need for the
state to prosecute maliciously
and there is no jungle law and there
is no truth that he was maliciously prosecuted.  In some cases
they refuse to prosecute.
The plaintiff was not maliciously
prosecuted and they went on the statement, the affidavit and the
evidence and in criminal matters
the guilt must be proven beyond
reasonable doubt and they could not prove it beyond a reasonable
doubt.
19.
During cross examination it was put to Mahlangu that he did not know
if the procedure was followed when property is seized by
the police.
He said that the procedure was followed and on A247 they wrote down
what was found.  It was put to him that
he does not know if that
procedure was followed with the plaintiff’s vehicle.  He
said that if it is not written on
A247, it means that they did not
have the car.  If the police took the car, he does not know
whether a theft of car was opened
against the police but he was not
there.  It was put to him that he testified about recent
possession and was asked what it
entails.  He said that it is
when he was recently found in possession of the stolen item or what
was robbed.  He was
asked what possession means.  He said
that it was something in your possession i.e. actual or otherwise.
He was asked
what otherwise means.  He gave an example that
where a person has a key to the house, he has control over that house
and the
stolen property found in it and it is recent possession.
He agreed that at A67 which is the statement of Magoedie that he
said
that four suspects were found in the Toyota and that he interviewed
him.  He said that Mzwakhe was found in the driver’s

seat.  He told wrote and told him that Mzwakhe had the Toyota’s
keys on him.  It was put to him that the plaintiff
was merely a
passenger in the vehicle on Magoedie’s version.  He said
that he was in the car but said that he would
not say that he was not
a passenger but part of the group who had hijacked it.  He said
that although he was not driving it,
it does not mean that he was not
part of the hijackers.  It was put to him that there was no
other evidence that linked him
to hijacking.  He said that if
you go to the statement of the complainant, she remembered one person
and heard voices in the
back and they acted in tandem and the police
found three other persons in the car.  It was the plaintiff and
three others.
He said there was no evidence that they heard the
person’s voice.  It was put to him that to be in
possession means
to be in control.  He said that when people go
to hijack, they hijack the car and take money and get away with the
car and
found 4 to 5 people and the practicality tells him that they
were part of the robbers. It was put to him that there was no
evidence
that the plaintiff knew that the car was hijacked.  He
said that he was in a recently hijacked car.  It was put to him

that he does not know if he knew.  He said that they go to
recent possession.  It was put to him that he was not answering

the question and that he does not know that he knew.  He said
that is what they put down.  It was put to him that there
was no
evidence in the docket that the plaintiff ever received the Toyota in
his possession.  He said that he did not say
that he had
received it.  It was put to him that at the trial that no
evidence was led or deposed to that went outside the
parameters of
the statement that they had.  He agreed that some evidence was
based on the affidavit.  It was put to him
that after that
evidence was led and he had addressed the court and he was referred
to A77 where he said that the car was hijacked
around 15h30 and it
was put to him that this evidence supplementary evidence to that
effect in the docket.  He agreed.
It was put to him that
the state did not have any objection to the three accused to be
acquitted and that he concluded that there
were no reasonable
prospects that they would be convicted.  He said that he
proceeded based on the affidavit.  There
was supplementary
evidence at the bail application.  It was put to him that he
said that there was no supplementary evidence.
He said that
there was a policeman who testified and based on that evidence he had
a challenge at the trial.  They had a reason to prosecute and it
does not mean that
they were malicious.  They just want justice
and they do not always get convictions and sometimes there are
acquittals.
It was put to him that he said that there were no
problems.  He said that there were no problems before they
started with
the trial.  He said that Magoedie’s evidence
was the same as it was on the affidavit.  He was asked whether
the
problems with Magoedie started at the trial.  He said that
he will have to explain but the problem started at cross
examination.
He was asked what the problem in cross examination
was and he said that they had a problem with the ammunition.  He
was asked
what that problem was. He said that he spoke about the
other one person and did not know what he did and Netshivhodza had
dealt
with the ammunition.  It was put to him that his problem
started with the criminal trial with Magoedie testifying about the

ammunition in the plaintiff’s possession and that all four were
detained free from injuries.  He said that evidence
would have
been led by the deceased when he arrested the plaintiff and he is
deceased.  He is the person that they wanted
but he could not
give him the plaintiff.  He was under the control of
Netshivhodza.  He said that if the plaintiff was
driving a
vehicle under the influence and the vehicle was confiscated and he
was taken to the police station it would be booked
there.
During re-examination it was put to him that evidence was led outside
the parameters of the statement and he said
that she testified about
the voices that she heard and she described Mzwakhe in court and this
did not appear in her affidavit.
20.
The defendant third witness was Thomas Mokoro Magoedie.  He
testified that he is a policeman in the South African Police
Service
and is a warrant officer based at Tembisa South police station.
He is a police for 26 years and on 23 January 2008
he was based at
Tembisa.  He was on duty doing tracing.  He does not wear
uniform.  They arrested four suspects
but does not remember
their names.  One of them was Mzwakhe.  He said that when
they left the police station, they received
a message through the
radio that a Toyota Corolla was hijacked.  Whilst they were
moving around someone called him that a
certain vehicle was parked at
Esangweni on the side of a street in front of a certain house and
there were four people in it.
They were travelling in an
unmarked car and drove to Esangweni and in the street they saw people
in the vehicle.  They approached
the vehicle and found four
people in it.  He was travelling with constable Netshivhodza who
is deceased. They were followed
by a police Venture but they came
first to the scene before the Venture.  They parked on the side
of the Toyota Corolla and
he got out of the driver’s side of
the BMW vehicle and Netshivhodza on the left.  He told the
occupants of the vehicle
to stay as they were in the vehicle and he
was behind the Corolla on its right hand side.  He opened the
right side of the
rear door and took out the occupant who was seated
behind the driver.  He searched him and found nothing on him and
he made
him to lie down on the side.  He then approached the
driver of the vehicle and took him out of the vehicle.  When he
searched him, he was wearing a jacket and felt keys in the right hand
side of the jacket.  He asked him what was inside his
jacket and
he told him that it was keys.  He asked him what the keys were
for and he said it was keys for a vehicle that got
stuck in
Alexandra. He took out the keys and after he looked at it saw that
they were the keys of a Toyota Corolla.  They
had a remote
control and he put the key into the ignition of the Corolla and was
able to start it.  He then asked why he had
said that it
belonged to a vehicle that was stuck and that it started the vehicle
and he did not respond.  There was also
a remote control amongst
the keys for the gate.  Netshivhodza was busy with the other
passengers.  He the witness did
not handcuff the first person
that he had found in the Toyota but had only instructed him to lie
down.  He then instructed
Mzwakhe to lie down after he had found
the keys on him and did not cuff him.  He said that whilst
Netshivodza was searching
the others, he heard him ask one of them
where he got the bullet and when he looked at him he saw him holding
a bullet in his thumb
and fourth finger.  He had found this from
a certain person who was heavy built and it was the plaintiff.
It was the
person that he was busy with.  He then told Mzwakhe
that they had found the bullet and that they would have to go to his
place
as the vehicle was hijacked using a firearm. He then asked him
where the firearm was and he said that he left it with a person who

resides in Alexandra but does not know where he resides.  The
plaintiff and the 2others were placed in the Venture and Mzwakhe
in
their BMW.  They went with Mzwakhe to his residential place and
they were followed by the police in the Venture where they
found
cellphones in his room with a female handbag.  He then asked him
if he had documentation for the cellphones and he said
that he did
not have.  They told him that he was under arrest for hijacking
and for the cellphones that they had found inside
the house.
The other three were informed that they were under arrest as they had
been found inside the hijacked vehicle and
Netshivodza explained to
the other person that he was under arrest for being in possession of
life ammunition.  They were taken to the Tembisa police station
where they
were detained.  At the police station they have an
SAP 13 register book and the life ammunition and cellphones were
booked
in.  He does not know who registered them.  A247
lists three items and cellphones.  Netshivhodza’s
signature
appears on it but he does not remember if it is his
handwriting.  The cellphones were found at Mzwakhe’s place
but he
does not remember how many were found but they also wrote down
a brown bag and under 3.2 the life ammunition and Netshivhodza’s

name appears on it.  He testified in the criminal trial his
affidavit was read into the record which appears at A67 to A68.

All three suspects were informed about their constitutional rights.
He gave their names as Samuel Manyu, Mzwakhe Mahlangu
and Josias
Matjiu on whom a life ammunition was found.  The fourth suspect
was Sizwe Matlopo and they were detained all free
from injuries.
He was asked why he referred to three when they were four.  He
said that he spoke to three and said that
they were under arrest and
explained their rights to them. It is stated that constable
Netshivhodza found ammunition in his pocket
and he the witness did
not find it and he did not explain his rights to him so he excluded
him.  He then said that all 4 were
detained free from injuries.
They were four who were detained free from injuries.  He denied
that the plaintiff was
arrested in his own car 500 to 600 meters from
Mzwakhe’s place.  He did not know the accused before he
was arrested.
There was no flying squad and the plaintiff was
not put in it.  The plaintiff and the two others were placed in
the Venture
and Mzwakhe in the BMW that he was driving in.  He
denied the plaintiff’s version that the three were placed in
the
Venture and he in the flying squad vehicle.  He said that
they went to the police station where they were taken to the cells

and a case of being in possession of life ammunition was opened and
possession of a hijacked vehicle.  He was not involved
in the
opening of those cases but wrote down an arresting statement for
Mzwakhe after he had found the keys on him.  He denied
that the
plaintiff was taken to the toilets where he was assaulted and said
that no one was assaulted in his presence. They were
not taken to the
Tembisa police station toilets.
21.
During cross examination Magoedie testified that he said that the
plaintiff was under the control of Netshivhodza and he was
arrested
by him.  He agreed that he testified at the criminal trial and
during his evidence in chief that he had received
information that
the Toyota was hijacked by two people.  He was not told that
those two people were in the Toyota Corolla.
He agreed that he
said in his evidence in chief that he arrested four suspects.
It was put to him that in cross examination
he said that the
plaintiff was arrested by Netshivhodza.  He agreed and said that
he was the one on whom a life ammunition
was found. It was put to him
that he could not have arrested four suspects since there were four
suspects and Netshivhodza arrested
the plaintiff.  He said that
there were 4 suspects in the vehicle and Netshivhodza found
ammunition on the plaintiff.
He said that he did not arrest 4
suspects.  He agreed that his evidence in chief was not
factually correct.  He said
they arrested four suspects and he
did not arrest all four suspects.  It was put to him that he
testified in chief that the
person who told him that said that there
were four persons in the hijack car.  He said yes and said that
the person did not
know that the vehicle was hijacked.  He said
that the person was parked in a certain spot with four people parked
in it.
What that person said about the four people in the car
was important in the context of the criminal trial. It was put to him
that
he did not at the criminal trial testify about this person
telling him of the four persons.  He agreed and said that he
does
not remember if he mentioned it.  He drew a plan which was
handed in as exhibit C which is a sketch of the scene showing how
the
Toyota Corolla and their vehicle was parked when they got there.
He agreed that after they had stopped, him and Netshivhodza
got out
of the vehicle and there was police Venture behind the BMW.  He
got out and went to the driver’s side on the
right hand side
and there was a driver in it and Netshivhodza went to the left side
of the vehicle and there were two passengers
there. He took out his
firearm and it was obvious and he held it.  He pointed it
downwards in a 45 degree and did not point
it at the vehicle.
He got out holding the firearm in his hand.  He took out first
the passenger behind the driver and
then Mzwakhe.  It was put to
him that he testified that he took out Mzwakhe from the vehicle. He
said that he did not start
with Mzwakhe and he was the second person
that he took out.  It was put to him that at the criminal trial,
he testified that
he instructed Mzwakhe to get out of the vehicle.
He said that when he said that he took him out of the car it does not
mean
that he grabbed him and pulled him out of the vehicle.  It
was put to him that he said that he instructed him to get out of
the
car and to lay on the ground and in court he was saying that he
instructed  him to lie down after he had searched him.
He
said that this happened a long time ago and he mentioned in 2009 and
it will not be exactly the same like today.  He agreed
that he
said that he found the keys with the remote in his right hand side
pocket.  It was put to him that at the criminal
trial he said
that it was at the left back pocket.  He said that this is what
he said happened in 2009 and he cannot exactly
say today.  It
was put to him that he cannot use that as an excuse as he testified
that these are the facts today.  He
said that he cannot dispute
what was being put to him.  He agreed that at the criminal
trial, he said that he found the registration
plates when he searched
Mzwakhe and he agreed that he did not testify about it because he had
forgotten.  He agreed that he
saw Netshivhodza holding a bullet
in his hand after searching the plaintiff and it was crucial at the
criminal trial.  He said that he does not remember whether
he
testified about that at the criminal trial.  It was put to him
that he did not say at the criminal trial that he heard
Netshivhodza
asking the plaintiff where he got the bullet from.  He said that
he cannot say whether he mentioned that or not.
It was put to
him that at the criminal trial he said that he got the number plates
on Mzwakhe and that he had placed it in the
boot of the BMW.  He
said that he does not remember if he said so.  It was put to him
that he said that it was not registered
on the SAP13 and the reason
it was not entered was that no case was opened about it.  He
said that he agrees with that.   It
was put to him that not
all items in the police possession were entered in the SAP13.
He said that he does not know that.
He was asked what he meant with
that and said that what he found he registered in the SAP13 even if
he was a suspect.  It
was put to him that he did not register
the registration plates in the SAP13.  He said that there was no
case against them.
It was put to him that the reason is that it
was important and it is the plaintiff’s case that his car was
driven by the
police to Tembisa police station and the state’s
version is that the fact that it was not entered means is that they
never
received it.  He said that he did not speak about his
vehicle because he did not see that vehicle.   He agreed
that
the SAP 13 on A247 there is no mention about the registration
plates but only the life ammunition, cellphones and brown bag.

It was put to him that this meant that the number plates never went
into his possession.  He said that he does not remember
what
happened to them and where they ended up.  It was put to him
that it must be true that it was not registered on the SAP13.

He said that it was not his handwriting and he did not write the
items that appear on SAP13.  It was put to him that he testified

in court about the firearm that was used in the hijacking and that
Mzwakhe said that it was with someone in Alexandra.  He
agreed
and said that the reason he had asked him for the firearm was that it
was alleged that the complainant was hijacked with
a firearm and he
said that the person resides in Alexandra.  It was put to him
that he did not testify about this in the criminal
trial and he said
that he does not know whether he had mentioned that.  It was put
to him that he had not testify about it
at the criminal trial and he
said that he did not see his transcript and the cross examiner had
seen it.
22.
During re-examination it was put to him that he said that he dealt
with three suspects and he was asked about how many he dealt
with.
He said that he dealt with 2 and Netshivhodza.  When he
approached the Toyota, he dealt
with
two persons on his side and Netshivhodza with the other two and he
had arrested 3 of them.
Analysis of facts
and arguments raised
23.
The plaintiff has abandoned his claim for malicious prosecution and
is only persisting with his claim for wrongful arrest and
detention.
The plaintiff contended that the arrest was unlawful since he was not
arrested in the hijacked vehicle but in
his own vehicle.  It was
contended further that even on the defendants’ version no case
had been made out for the arrest
and detention because the offence
that the plaintiff was arrested for or that is referred to in his
Rights relate to being in possession
of a stolen vehicle and is not
contained in Schedule 1 of the CPA.  It was contended further
that even if the arrest was lawful
it does not follow that the
detention was lawful.  It was contended that the subsequent
detention of the plaintiff’s
arrest was unlawful in that the
investigating officer and or the prosecutor should have placed facts
before the magistrate that
would have indicated that there was no
case against the plaintiff.
24.
It was further contended that the investigating officer did not place
all the relevant information at the plaintiff’s
bail hearing
which prompted the magistrate to deny bail.  Had the prosecutor
or investigating officer placed all the relevant
information before
the magistrate, bail may have been granted.
25.
The test whether a suspicion is reasonably entertained within the
meaning of section 40(1)(b) of the CPA is objective: would
a
reasonable man in the defendant’s position and possessed of the
same information have considered that there were good and
sufficient
grounds for suspecting that the plaintiff was guilty of the offence
for he sought to arrest him.  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 a sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact guilty.

The section requires suspicion but not certainty.  However, the
suspicion must be based upon solid grounds.  Otherwise,
it will
be flighty or arbitrary and not a reasonable suspicion.
26.
Before dealing with the issues before me, there is the issue of
hearsay evidence that relates essentially to the affidavit of

Netshivhodza who is deceased and the SAP13 document that is at A247.
The second issue that I will have to decide is which version
of the
events is more probable.
27.
It is the defendants’ version that Netshivhodza was in the
presence of Magoedie when the plaintiff and three other persons
were
found in vehicle that had been hijacked.  Netshivhodza deposed
to an affidavit on 23 January 2008 at 19h45 where he
inter
alia
stated that he was on duty on 23
January 2008 and was in the company of Magoedie when at 16h00 they
received a report of a hijacked
vehicle in Kempton Park.  They
did patrol duties when they came across the suspected motor vehicle
with three males inside.
They stopped next to the vehicle in
Esangweni section in Tembisa and approached it and introduced
themselves to the occupants of
the vehicle. He circulated the vehicle
and discovered that it had been hijacked.  They asked them about
the vehicle and they
failed to give an explanation.  They asked
them to come out of the vehicle and on one of the suspects, Mzwakhe
who was in
the driver’s seat, he was in possession of the car
keys.  They explained to them that they were arrested for being
in
possession of a hijacked vehicle and explained to them about their
rights and on the plaintiff they found a life ammunition in his
right
pocket.  They took Mzwakhe to his place and they found four
cellphones in his room and one brown handbag and he failed
to produce
a slip.  He took them to the Tembisa police station for
detention and they were free from injuries.  The exhibits
were
booked into the SAP13 81/08.  A247 is the SAP13 which contains
the items that were found on Mzwake and the plaintiff
in it.  It
was signed by Netshivhodza.  Netshivhodza was murdered before
the criminal trial.
28.
Section 3
of the
Law of Evidence Amendment Act 45 of 1988
deals with
hearsay evidence and provides as follows:
(1)
Subject to the provision of any
other law, hearsay evidence shall not be admitted at criminal or
civil proceedings unless –
(a)
each party against whom the evidence
is to be adduced agrees to the admission thereof as evidence at such
proceedings.
(b)
the person upon whose credibility
the probative value of such evidence depends, himself testifies at
such proceedings, or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence
is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not
given by the person upon whose credibility the probative value of
such evidence depends;
(vi)
any prejudice to a party which the
admission of such evidence might entail; and
(vii)
any other factor which should in the
opinion of the court be taken into account.;is of the opinion that
such evidence should be
admitted in the interest of justice.
(2)
The provisions of subsection (1)
shall not render admissible any evidence which is inadmissible on any
ground other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be
provisionally admitted in terms of subsection (1) (b) if the court is
informed that the person upon whose
credibility the probative value
of such evidence depends, will himself testify in such proceedings:
Provided that if such person
does not later testify in such
proceedings, the hearsay evidence is admitted in terms of paragraph
(a) of subsection (1) or is
admitted by the court in terms of
paragraph (c) of that subsection.
(4)
For the purpose of this section –
‘
hearsay
evidence’ means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of
any person
other than the person giving such evidence;
‘
party’
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.”
29.
It is common cause that Netshivhodza is deceased and can therefore
not testify in these proceedings.  These are civil proceedings.

Whilst it is so that he cannot be cross examined, what is contained
in his affidavit has been corroborated by Magoedie who testified
that
the plaintiff was one of the persons found in the police vehicle.
He saw the bullet that was in Netshivhodza hand which
he said he had
found on the plaintiff.  He also deposed to what is contained in
the SAP13 which are the items that were found
on Mzwakhe and the
plaintiff.  In my view it is in the interest of justice that
such evidence be admitted.  This matter
can also be determined
without the statement of Netshivhodza.  This would depend on
which version I would accept between that
of the plaintiff and that
of Magoedie.  If I accept the version given by the plaintiff
that he was not found in the hijacked
vehicle, it follows that the
police were telling lies and that they had arrested an innocent
person.  If the plaintiff’s
version is rejected, it
follows that the version of the defendants are correct and that the
plaintiff’s version was concocted.
30.
This court is faced with two diametrically opposed versions only one
of which can be correct.  On the one hand, the plaintiff
alleges
that he had met with Mzwakhe, Samuel and Sizwe earlier on 23 January
2008 and had left them at Mzwakhe’s home.
About 500 to
600 meters, he was stopped by three members of the flying squad and
was told to lie on the grounds.  Other members
of the police
arrived including those in police vans who had asked him where
Mzwakhe was.  He told them that he was at his
parental home.
The police drove to Mzwakhe’s place and he was then told by the
members of the flying squad to get into
their vehicle and they drove
with him to Mzwake’s parental home.  He was then taken to
the Tembisa police station where
he was assaulted in a toilet and
later locked up in the cells.  His vehicle was also taken to the
police station.  He
did not lead any evidence about what
happened to his motor vehicle.
31.
The police version on the other hand is that they had received
information
about
the Toyota vehicle that had been hijacked about 2 to 3 hours
earlier.  They were informed where the vehicle was.
They
drove to the place where they were told where the vehicle was.
The police were travelling an a BMW vehicle and was followed
by other
police travelling in a police Venture.  There were no other
police involved nor was the flying squad involved.
They
approached the vehicle and found four occupants in the hijacked
vehicle.  The plaintiff was one of the persons in it.
The
occupants were ordered out of the vehicle one at a time.  On the
plaintiff they found an unused bullet.  The car
keys and remote
control gate was found on Mzwakhe.  They drove with him to his
house where cellphones were found and other
items.  They were
then driven to the Tembisa police station where they were detained.
They denied that any assaults
had taken place and that members
of the flying squad were involved.
32.
Since the defendants have admitted the arrest and detention, the onus
is on the defendants to prove on a preponderance of probability
that
their version is the truth.  This onus is discharged if the
defendants can show by credible evidence that their version
is the
more probable and acceptable version.  The credibility of the
witnesses the probability and the improbability of what
they say
should not be regarded as separate enquiries to be considered
piecemeal.  They are part of a single investigation
into the
acceptability or otherwise of a defendant’s version, an
investigation where questions of demeanour and impression
are
measured against the content of a witness’s evidence, where the
importance of any discrepancies or contradictions are
assessed and
where a
particular
story is tested against facts which cannot be disputed and against
the inherent probabilities so that at the end of the
day one can say
with conviction
that
one version is more probable and should be accepted, and that
therefore the other version is false and maybe rejected with
the
safety.  In this regard see
Mabona
and Another v Minister of Law and order and others
1988
(2) SA 654
SECLD.
33.
The first question that arises is which version is more probable. It
is common cause that the complainant’s was robbed
of her
vehicle at gun point on 23 January 2008 at about 15h30.  She had
only seen the gunmen whom she later identified as
Mzwakhe in the
criminal trial.  She did not see any other persons who were with
Mzwakhe but had heard some voices but she
could not say whose voices
they were.  Maphumulo testified that the
modus
operandi
of hijackers is that they do
not operate alone but are always in a group.  A few hours after
the vehicle was hijacked police
received information about the
vehicle and where it was to be found.  The vehicle was found and
four occupants were in it.
The occupants were arrested.
34.
The plaintiff’s version as stated earlier was that on the day
in question he went to visit his daughter earlier that day.
He
then went to look for Mzwakhe but did not find him.  He then
called him on his cellphone and told him where he could be
found.
He went there and found him and drove with him back to his place.
They were traveling in one car and on their
was they stopped Samuel
and Mzwakhe got into the car and they followed each other. He later
went to his place to go and watch soccer.
About 500 meters away
he was waylaid by police in a flying squad vehicle who stopped him.
Other police arrived and asked
where Mzwakhe was.  The police
were unknown to him and he was unknown to them. The first question
that arises is why the police
had stopped him in the first place.
The explanation that he gave was that the police must have seen him
at Mzwakhe’s
place.  If that is the case, why was he not
arrested there?  The defendants denied that the flying squad was
involved.
Why would they lie about it?  The plaintiff said
that he was arrested in his own vehicle.  His vehicle was taken
to the
Tembisa police station.  He did not testify what happened
to his vehicle thereafter.  He remained in custody for more
than
14 months and we still do not know what happened to his vehicle.
It certainly was not confiscated by the police.
He did not
testify about what steps he had taken to recover his vehicle.
He did not testify whether he notified his family
members to go and
fetch his vehicle at the police station.  There is no claim for
his vehicle in his particular of claims.
He was extremely vague
about his vehicle.  The testimony about his vehicle was
crucial.  Evidence was led that that if
an exhibit is found on a
suspect, that exhibit would be recorded on the SAP13.  There is
no such recording on the SAP13.
If it was taken to the police
station it should have been so recorded but most importantly he has
taken no steps to retrieve that
vehicle.
35.
The plaintiff wants this court to believe that he was brutally
assaulted by two members of the South African police in a toilet
at
the Tembisa police station who were part of the flying squad police.
Evidence was led that there were no such police and
they were not the
arresting officers.  The plaintiff gave a warning statement to
the police a day after he was arrested.
In the warning
statement he did not state that he was assaulted by the police.
Most importantly he did not pursue any claim
for unlawful assault.
He was assaulted on his version for more than 30 minutes.  Two
days later when he appeared in
court he did not bring it to the
attention of the court that he had been assaulted.  He did not
seek any medical attention
and the simple reason for not doing so was
that he was not assaulted.
36.
The plaintiff testified that he was suffering from gout when he was
arrested and was not given any medication for it.
In his bail
application he referred to both hypertension and gout.  When
confronted about the contradictions he struggled
to give a coherent
answer about the discrepancy.  The plaintiff did not call
Samuel, or Sizwe or Mzawkhe as a witness in his
case about where he
was arrested and about his assault.  He had indicated that he
was going to call witnesses to back his
version about where he was
arrested but failed to do so.  No reason was proffered why he
did not call those witnesses.
37.
If I consider the version of the defendants, I do not find any
inherent discrepancies in their version.  The plaintiff
was
unknown to them.  They had no reason to implicate him.
They had no reason to tell lies about where he was found.
They
had no reason to assault him.
38.
It is my finding therefore that the plaintiff’s version about
where he was arrested and that he was arrested in his vehicle
is
highly improbable and is rejected as false.  He was one of the
four persons who was found in the hijacked vehicle.
He lied
about his vehicle and the reasons for doing so are obvious.  He
wanted to distance himself from Mzwakhe and the others.
39.
The question that than follows is whether the defendants have proven
that the arrest and detention was lawful.  This court
was
referred to a number of judgments where the courts have stated what
the duty of an arresting officer is.  Part of his
duty is to
investigate whether the plaintiff’s version might be true.
The question is what more was the investigating
officer required to
do in the plaintiff’s case.  He had read the complainant’s
statement. He saw the two arresting
officers’ statement that
the plaintiff was arrested in a vehicle that was hijacked a few hours
earlier.  An unused bullet
was found in his possession.
There was no evidence of a vehicle that he was allegedly in.
They had received information
that the plaintiff may have been
involved in other matters.
40.
The police were criticised that they had not put an exact charge to
the plaintiff when he was arrested.  They are after
all police
and not prosecutors who are required to formulate the exact charges
to an accused.   Much was made that the
charge that the
accused was informed he was faced which is not contained in Schedule
1 to the CPA.  The evidence indicated
that the plaintiff was
found
in
a hijacked vehicle. It was not clear if he was an accomplice but a
firearm had been used and he was found in possession of the
vehicle.
The charge that he was eventually faced with was armed robbery which
falls under schedule 1 of the CPA.
41.
Parties are bound to prove their pleaded case.  The other side
should know what case it has to meet.  An attempt was
made in
closing arguments for the plaintiff to plead a case which was not
foreshadowed on the pleadings.  This was along the
lines that
the defendants are liable because they had failed to place facts that
would have shown the plaintiff’s innocence.
What those
facts are that indicates his innocence is not clear.  That is
not the pleaded case before me and any such attempts
should be
rejected.  Even if it is allowed, what more was the police
supposed to do?   The suspicion that the arresting
officer
harboured when arresting the plaintiff was reasonable and based on
objective facts.
42.
I am satisfied that the defendants have discharged the onus that
rested on them that the plaintiff’s arrest and detention
was
lawful.
43.
The action stands to be dismissed.  There is no reason why costs
should not follow the result.
44.
In the circumstance I make the following order:
44.1
The action is dismissed with costs.
FRANCIS
J
HIGH
COURT JUDGE
FOR
PLAINTIFF : L J DU BRUYN
INSTRUCTED
BY THEMBI DLAMINI ATTORNEYS
FOR
DEFENDANTS : L LIPHOTO
INSTRUCTED
BY STATE ATTORNEY
DATE
OF HEARING : 20 – 23 APRIL 2015
DATE
OF JUDGMENT : 26 MAY 2015