Matlou and Others v Minister of Police and Another (2253/17) [2020] ZAGPJHC 189 (4 June 2020)

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[2020] ZAGPJHC 189
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Matlou and Others v Minister of Police and Another (2253/17) [2020] ZAGPJHC 189 (4 June 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2253/17
In
the matter between:
MATLOU,
PETER
First Plaintiff
MALULEKE,
MUSA
Second Plaintiff
MATHEBULA,
LEN
Third Plaintiff
NGHONYAMA,
BONGANI
Fourth Plaintiff
and
THE MINISTER OF
POLICE
First
Defendant
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
Second Defendant
JUDGMENT
YACOOB
J
:
1.
The plaintiffs are policemen. They were arrested,
imprisoned and charged with theft, and the charges against them were
eventually
dropped. They now seek damages for unlawful arrest and
unlawful prosecution.
2.
The background facts, which are common cause, are
as follows.
3.
On the evening of 28 October 2015 and the morning
of 29 October 2015, the plaintiffs were all on night shift duty,
based at Langlaagte
Police station. The first and second plaintiffs
and third and fourth plaintiffs each formed a “crew”,
assigned to a
motor vehicle which would patrol an allocated area
within the jurisdiction of the Langlaagte Police station during the
shift, which
lasted from 18h00 on 28 October until 06h00 on 29
October.
4.
The third and fourth plaintiffs used a vehicle
with registration […]7B and call sign LL26, while the first
and second plaintiffs
were in a vehicle with registration […]8B
and call sign LL23. All four plaintiffs, both at the time and at the
time of the
hearing, held the rank of constable.
5.
Also on 28 October 2015, at approximately 19h30
at the Vaal toll plaza on the N1 between Bloemfontein and
Johannesburg, a truck
was hijacked. The truck contained luxury goods
being transported for sale. A device known as a “jammer”
was used so
that the tracking device on the truck stopped sending out
signals and the truck could not be tracked.
6.
During their patrols, the third and fourth
plaintiffs spent most of the early morning at and around a property
at 36 Stellar Avenue.
The first and second plaintiffs were also in
that vicinity at some point. A truck was discovered at the property,
together with
boxes either empty or containing shoes and clothing. It
emerged later that the truck was the same truck that had been
hijacked
the evening before on the N1. It is the events surrounding
the property and the hijacked truck on the morning of 29 October that

formed the basis of the charges against the plaintiffs.
7.
The plaintiffs were arrested and charged with
theft, a schedule 5 offence as it was allegedly committed by law
enforcement officers.
They spent a total of 18 days in prison. Their
first court appearance was on 02 November 2015, at which they were
charged with
robbery with aggravating circumstances, a schedule 6
offence.  They had to make a formal bail application, and were
remanded
for 8 days. When they appeared again in court, they were
detained again for purposes of an identity parade related to the
robbery
charges, in which they were to be identified by the driver of
the hijacked truck. This identity parade did not happen. The
plaintiffs
appeared in court again and were released on bail on 17
November 2015, at which point the charge was again one of theft.
8.
The criminal proceedings against the plaintiffs
were postponed a number of times either for unavailability of
witnesses or for further
investigation. The charges were withdrawn on
30 June 2016 and reinstated on 7 October 2016. The charges were
finally withdrawn
on 17 May 2017 on the basis that there was
insufficient evidence to secure a conviction.
9.
The outline above is common cause. What is in
dispute is what the third and fourth respondents did at 36 Stellar
Road that morning,
for what reasons, and whether their conduct as it
appeared from the evidence gave rise to a reasonable suspicion which
justified
their arrest. As far as the first and second plaintiffs are
concerned, the question is whether their conduct is sufficiently
linked
with that of the third and fourth plaintiffs, and therefore
whether there is also a reasonable suspicion relating to them. It is

obvious that, if there is no reasonable suspicion regarding the third
and fourth plaintiffs, then there can be none regarding the
first and
second plaintiffs.
10.
It was rightly agreed that the defendants had the
duty to begin, as the defendants bore the
onus
to show that the arrests were lawful. The defendants called eight
witnesses:
10.1.
Mr Bellingan;
10.2.
Sergeant Ramakatla;
10.3.
Captain Hicks;
10.4.
Mr van der Mescht;
10.5.
Mr Peter;
10.6.
Colonel Sibanda;
10.7.
Mr Maharajh, the prosecutor, and
10.8.
Mr van der Merwe.
11.
The defendants also adduced video evidence, from
the CCTV cameras of a property across the road from the Stellar Road
property,
which was presented by Mr van der Merwe. In order to do so,
the defendants reopened their case after the plaintiff’s first

witness, Mr Mathebula, the third plaintiff, had testified, and Mr
Mathebula thereafter resumed the stand to deal with issues arising

out of the video footage.
12.
The plaintiffs called the first, third and fourth
plaintiffs, as well as Constable Goodgall, a detective who was called
to the scene
on the morning of 29 October 2015.
13.
In addition, There was agreement between the
parties that the statements of Mr Simba and Mr Banda the two
civilians at the scene,
Mr Masweo the original driver of the hijacked
truck, and Mr Khumalo and Mr Ndaba who were security guards at the
property across
the road from the scene, would be admitted in terms
of section 3(1)(a) of the Law of Evidence Amendment Act, 45 of 1998.
THE
DEFENDANT’S CASE
Mr
Bellingan
14.
Mr Bellingan testified that he is employed at a
company called RTT apparently a related company to another company
called RTT Logistics,
to which the truck belonged. His specific job
in 2015 was to respond to hijackings.
15.
The truck found at 36 Stellar Avenue was equipped
with a tracking system which updates at regular intervals. If there
is any interference
with the updates, for example if the updates
stop, then it is assumed that the truck has been hijacked. The
tracking system on
the truck found at 36 Stellar Avenue had stopped
updating on the N1 and resumed some hours later in Langlaagte, at
which point
he responded by going to the scene. The truck’s
whereabouts were unknown until the tracking system began updating
again at
about 05h45 on the morning of 29 October, at which point Mr
Bellingan was called by the control room, and he went to the scene.

Mr Bellingan thought that the tracking system started updating again
because the jamming device’s battery ran flat.
16.
When he got there, Mr Bellingan found a white 8
ton truck parked on the street on the side opposite to the property,
and RTT’s
truck was inside the property. There were also two
marked police vehicles on the street. He found four police officers
at the scene
and a lot of boxes lying all over the property, some of
which had been opened. The boxes contained branded sportswear. He
also
saw two civilians but only spoke to the policemen.
17.
One of the civilians had a pair of obviously new
sports shoes on, and there were shoes of the same brand in some of
the boxes, but
Mr Bellingan did not remember the brand. One of the
policemen was taking things out of boxes and Mr Bellingan asked what
he was
doing, and he asked him to put the things down. Mr van der
Merwe arrived soon after.
18.
Mr Bellingan asked the policemen where were the
photographers and investigating officers and they did not answer. He
had some experience
with crime scenes because of his job and in his
experience everything had to be cordoned off and left in place for
photographs
and fingerprints to be taken. Also he was a police
officer for 11 years before undertaking his current line of work.
19.
Mr van der Merwe arrived just a few minutes after
he did, and about half an hour after that there were a whole lot of
police officers
and investigators.
20.
Mr Bellingan and Mr van der Merwe found a jamming
device on the front seat of the truck connected to a truck battery
that had been
placed next to the jamming device. That is why they had
lost contact with the tracking system, because the jamming device
jammed
the signal.
21.
Mr Bellingan stated that there are always contact
details in the horse of their trucks but nobody contacted RTT about
the truck
until the signal came back on.
22.
Mr Bellingan was not sure of the exact number of
boxes that had been in the truck nor of the value of the goods. He
conceded in
cross examination that he did not know where else the
truck had stopped before it reached Stellar Road, and that he did not
know
whether some boxes had been offloaded at some other place. He
also did not know what had happened before his arrival.
23.
A number of photographs taken from the video
footage were put to Mr Bellingan. His evidence on those photographs
was not particularly
of relevance except inasfar as it assisted the
Court to understand the layout of the road and the property. At that
stage it was
not clear whether the video footage would be adduced. In
my view anything worthwhile that came out of Mr Bellingan’s
testimony
regarding the photographs (and that of the other witnesses
who testified before the footage was adduced) was superceded by the
video footage which was later adduced.
Sergeant
Ramakatla
24.
At the time of the incident Mr Ramakatla was
attached to the Provincial Investigating Unit. He was one of the
investigating officers
in the case. He has been a police officer for
15 years. He was not initially the investifating matter but the
initial investigating
officer, Constable Moultrey, became ill so Mr
Ramakatla took it over. He received the docket with the statements
already in it.
He did not initially see the video footage which had
already been forwarded to the analysts. He only took the statement of
the
shift commander at the time of the incident.
25.
Mr Ramakatla testified that the plaintiffs were
charged with theft and ought also to have been charged with defeating
the ends of
justice because they were police officers, and because
they were found tampering with the scene and had not cordoned it off.
26.
He did not know whether bail had been opposed at
the plaintiffs’ first appearance. However later the intention
had been to
hold an identification parade because there was a
suspicion that the plaintiffs may have been linked with the
hijacking. Later
it became clear that the vehicles they had been
driving that night did not go to the area where the hijacking took
place and so
they could not link the plaintiffs to the hijacking and
did not hold the ID parade. In addition the driver apparently
informed
Mr Ramakatla through his (the driver’s) brother that
he would not be able to identify anyone since the incident happened
at night.
27.
Mr Simba and Mr Banda who were the two civilians
seen by Mr Bellingan at the scene had been arrested by the
plaintiffs. They were
the driver of the truck that was parked on the
road and the caretaker of the property respectively. They were
charged with possession
of stolen items.
28.
Mr Ramakatla did not know why the charges against
the plaintiffs were ultimately withdrawn. He does know that the first
time they
were provisionally withdrawn was because the witnesses were
not available. He could not comment on what they were initially
charged
with because he was not involved in the matter at the time.
However he thought the number of boxes for which the plaintiffs were

charged for theft was an estimate based on information from the
complainant (RTT).
29.
Mr Ramakatla testified that the plaintiffs
ought to have waited for the photographers and ought not to have been
touching and moving
boxes as they apparently had.
Captain
Hicks
30.
Mr Hicks has been in the South African Police
Service for 26 years and a Captain for 10 years. He was in October
2015 stationed
at the Operational Command Centre for Gauteng, at
Brixton. He and his team was asked to go to Langlaagte to “assist”

in the matter on October 30
th
.
He arrived there at 6 or 7pm. He was there to assess the situation
and ensure that any arrest was done lawfully. There was also
a risk
because policemen may be charged and they tend to get angry and if
they are armed it is a risk.
31.
According to Mr Hicks when a policeman arrives at
a scene he is supposed to cordon it off and inform the commander if
backup is
needed. The evidence of the third and fourth plaintiff’s
vehicles going to and from the scene numerous times is unlikely to

have been part of correct management of a scene. The policeman is
supposed to cordon it off and safeguard the scene until it can
be
handed over.
32.
Mr Hicks was informed that the plaintiffs were
interviewed and had declined to disclose what had happened. There was
also a brigadier
from the legal section of the SAPS to ensure that
everything was above board.
33.
Mr Hicks then interviewed the plaintiffs. One
plaintiff refused to tell him anything and the others spoke of
finding a hijacked
truck. However none of the plaintiffs was
completely forthcoming.
34.
When the brigadier from the legal section spoke
to them they then agreed to give statements. After interviewing the
plaintiffs and
after they gave their statements Mr Hicks and his team
concluded there was a reasonable suspicion that the plaintiffs had
been
involved in a crime, and also that the plaintiffs had acted in a
suspicious manner by not dealing with the crime scene in accordance

with procedure, not informing their commander what they were doing,
not getting backup, driving up and down, bringing people to
the
station without detaining them and only arresting Mr Simba and Mr
Banda later.  All of these things were inconsistent
with
applicable procedure.
35.
Mr Hicks suggested that any police official would
recognise a jammer and would disconnect it because it would also
interfere with
their own communications. However the third and fourth
plaintiffs’ vehicle was moving around and would have been out
of the
range of the jammer so there was nothing to stop them
contacting their commander.
36.
He also suggested that they are not supposed to
move or touch things, and that if they do need to touch anything they
should have
used gloves. In any event they ought to have reported the
scene immediately.
37.
Mr Hicks was not aware of the charge of robbery
with aggravating circumstances with which the plaintiffs were charged
on their third
appearance. He was only aware of the charges of theft
and defeating the ends of justice, which is what he arrested the
plaintiffs
for. He could not explain why defeating the ends of
justice did not appear on any charge sheet. He said the arresting
officer did
not do the charge sheet.
38.
He also did not do the paperwork when the
plaintiffs were arrested so he did not know why the Notice of Rights
only mentioned theft
and not defeating the ends of justice.
39.
As far as the plaintiff’s handling of the
crime scene was concerned, in his experience the correct way to
handle it when something
was clearly wrong, for example finding the
two trucks and people running away which is what the plaintiff will
say, is to call
it in. The existence of the jamming device was
another indication something was wrong. The plaintiffs ought to have
checked the
truck also for contact details. If the plaintiffs had
followed procedure it was his view that more suspects could have been
arrested
and those who were arrested could have been arrested earlier
and more information would have been obtained, the crime scene was

also contaminated. That was the basis of the defeating the ends of
justice charge.
40.
He did not have the proof of the plaintiff’s
theft but there was sufficient in his view at the time for a
reasonable suspicion
and that is why he arrested the plaintiffs.
Warrant
Officer van der Mescht
41.
Mr van der Mescht was also called to assist with
the arrest and was part of the team led by Mr Hicks.
42.
Mr Hicks asked him to take the plaintiffs to
Sophiatown police station to detain and to fill in the relevant
paperwork, such as
the cell register, the occurrence book and the
notice of rights. He did not do anything else. As far as he could
remember the plaintiffs
were only charged with theft but he was not
entirely sure. He would have written down as the charge what he had
been told by Mr
Hicks.
Warrant
Officer Howard Peter
43.
Mr Peter was on duty for the night shift on the
evening of 28 October to the morning of 29 October 2015. He was a
Warrant Officer
at Langlaagte Station and was the shift commander
that evening.
44.
As the shift commander he was supposed to know
everything that happened during the shift in his area and to inform
the duty officer
and detective. There were two sectors, one team of
one vehicle with two members (of the SAPS) was assigned to each
sector. There
was no reason for a team from one sector to be in
another sector unless they were called for backup. In addition if
this happens
the shift commander must be informed by phone or over
the radio. He was however not informed of anything before 6 o’clock

which was the end of his shift.
45.
Even if the plaintiffs did not immediately know
that the truck had been hijacked, he should have been informed of the
suspicious
circumstances so that he could then take whatever steps he
had to take, such as informing other role players or deciding to send

back up.
46.
Mr Peter saw that the plaintiffs brought some
people, he thinks there were four, to the “client side”
of the police
station. The station has a “client side”
and a “suspect side”. The fourth plaintiff was there and
he doesn’t
remember who else. It was some time between 11pm and
2am. The people were brought there and left there and then fetched
about an
hour and a half later. The plaintiffs did not report
anything or ask for assistance, nor did they book these people in. If
someone
comes to the client services side they come for help not as
suspects. Because these people had come with police members I assumed

they had been helped by those members so he did not ask them if they
needed help. These people were not recorded in any way.
47.
Mr Peter was taken through the vehicle logs
(“AVL”) of the vehicles driven by the plaintiffs. The
third and fourth plaintiffs
were assigned to Sector 2 in vehicle
registration BSY997B with call sign LL26. The first and second
plaintiffs were assigned to
Sector 1 in vehicle registration BSY388B
with call sign LL23. LL is the code for Langlaagte. The cars had
radios and the plaintiffs
had pocketbooks and firearms.
48.
If the plaintiffs called the landline of the
police station and reported to Ms Silikhane nobody told Mr Peter
about it. Mr Peter
and Ms Silikhane were both working in the charge
office but she did not say anything to him. If they called Colonel
(then Captain)
Sibanda he did not know, but they should have called
him and it was for him to call Mr Sibanda.
49.
It was put to Mr Peter that the plaintiffs will
say their pocketbooks were taken from them on arrest. He did not know
anything about
that. However this was not put to the arresting
officer Mr Hicks.
50.
According to Mr Peter even if the two sectors are
small it was not expected that different teams would cross into the
other sector
unless they were called for backup.
51.
He said that he did not see any of the plaintiffs
interviewing the civilians who were brought to the station. They were
left there
and then fetched. They were not interviewed at the
station.
52.
Sgt Baloyi was also issued with a vehicle. If he
had received any reports from the plaintiffs he did not report to Mr
Peter.
53.
The fourth plaintiffs’ vehicle went outside
of the two sectors, but Mr Peter did not receive any report from them
about why.
Lieutenant-Colonel
Sibanda
54.
Mr Sibanda was a Captain at the time and was the
Acting Station Commander at Langlaagte. He has been in the Police
Service about
30 years and was a captain for 9 years. He was the duty
officer on the date in question.
55.
He was telephoned at about 5.30 am and informed
about a truck, and went to the scene. He got there at around 6. He
found the third
and fourth plaintiffs at the scene. He remembers
someone from RTT being there but he does not remember names. He was
the first
person to arrive there.
56.
Mr Mathebula, the third plaintiff, showed him the
jammer in the front of the truck and also showed him the truck parked
outside
on the street. He also showed him the driver of the outside
truck who had come there to load goods. He would not say it was
normal
that he would only be informed at 5.30 when the truck had been
discovered four hours earlier. He should have been called earlier.

There was no detective there, there was no one from “LCRC”
which deals with certain cases – they should have
been there
because there was a jammer.
57.
The truck had registration numbers, but Mr
Mathebula said he did not know if it had been stolen despite the
jammer. I told him I
would come and see if there is something wrong.
58.
There were two people arrested in Mr Sibanda’s
presence on the day. Mr Mathebula told him he was holding them until
I could
say whether he should arrest them or not. He also said he
only saw the jammer after he had called Mr Sibanda.
59.
He does not know why the witnesses from RTT only
saw two police officers there, he definitely arrived before them.
However
he could not find his car before they arrived in the
photographs taken from the video footage. They could have seen
officers taking
things out of the boxes, but he did not see it, he
did not see everything.
60.
Mr Sibanda did not instruct the plaintiffs to
load the boxes on to the trucks which was the plaintiffs’
version. They told
him on the telephone they wanted to take the truck
to the police station and he told them to wait there for him first.
He
did not instruct them to load the boxes.
61.
Once Mr Sibanda saw the jammer he told them not
to tamper with the scene, and they got the scene cordoned off. He
then called in
the relevant role players – Captain Sina and the
“Trio Team” who work with serious crimes, the “LRC”

who take fingerprints, the “PIU”, the Provincial
Investigation Unit and the cluster duty officer. That is the
procedure
when there is a truck hijacking. Once the Trio Team and
Captain Sina arrived he handed over to them to continue the
investigation.
62.
Mr Sibanda did not notice anyone at the scene
wearing new takkies. He was shown a photograph but did not recall
anything like that.
But he knows photographs and fingerprints were
taken. He does not remember if he was told that Banda and Simba had
been taken to
the police station earlier. He did see the video
footage with a police vehicle entering and leaving the scene. But he
could not
see the call sign and registration.
63.
The security guards from Stellar Park which was
across the road from the scene informed the police that they had seen
the police
unloading boxes from the truck on the scene but we could
not see that on the footage. Statements were taken from them
immediately
in their guardroom.
64.
Mr Sibanda was taken through the photographs
which should a vehicle arriving. At one point there were two vehicles
and then one.
At one point a police vehicle entered the property and
the gate was closed. Mr Sibanda said that whether this was normal
would
depend on the reason the gate was closed.
65.
Mr Sibanda was taken to the statement of one of
the Stellar Park security guards, a Mr Khumalo who said that he saw
the police van
with brown boxes at the back, he walked past the scene
when the gate was open and saw similar boxes in the truck, and later
saw
the van return empty.
66.
Mr Sibanda was aware that the plaintiffs
were arrested for theft but was not fully aware of all the details
because he did not do
the arrest or the paperwork. He was aware that
the goods recovered were handed over to RTT at the scene rather than
at the police
station because there were too many to take back. As
far as he was aware the correct procedure was followed before they
were handed
back and the SAP299 was filled in but he did not know by
whom. He also does not recall the dates on which they appeared. He
does
not know about the robbery charge. But the charge is up to the
investigating officer and prosecutor.
67.
Mr Sibanda had heard that the plaintiffs also
called Ms Silikhane at the station (Client Services Centre). He could
not remember
exactly what the plaintiffs had told him but when put to
him in cross examination he said it came back to him that they had
told
him people had run away when they arrived and that one person
had dropped a Zambian driver’s licence and some bank cards.

These items were booked in terms of the proper procedure.
68.
However the plaintiffs ought to have called the
relevant roleplayers before they carried on at the scene. Mr Sibanda
agreed that
not following these procedures in itself is not criminal
conduct, although it may be misconduct leading to a disciplinary
hearing.
He did not know of anything found in the plaintiff’s
possession that might have been stolen.
Mr
Maharaj
69.
Mr Maharaj dealt with this matter having received
representations for the withdrawal of the charges. He was not the
prosecutor attending
to the trial in the Johannesburg Magistrates
Court. He obtained the docket from the investigating officer. He
realised that although
there was a
prima facie
case against the plaintiffs, the matter was
not ready for trial, and recommended that charges be provisionally
withdrawn against
all four plaintiffs.
70.
There were still some essential investigations
that needed to be carried out to strengthen the case enough so that a
conviction
was more likely. For example they needed the cellphone
records of the plaintiffs.
71.
In his view for a schedule 5 offence and the
value of the alleged theft, whether it was R9 million or R3.2
million, would mean that
bail on first appearance would have been
unlikely. The plaintiffs would have had to bring a formal
application.
72.
He was not aware of the ID parade that had been
suggested but knew that they were also attempting to use facial
recognition software
on the video footage. This did not happen in the
end because the footage could not be enhanced enough.
73.
According to Mr Maharaj it was reasonable that
the charges and the issues such as whether there will be a parade or
not change,
depending on developments and also different
investigation officers and different prosecutors, because each would
use their discretion.
It would be normal to oppose bail for further
investigation to avoid interference.
74.
It does not inherently matter whether a suspect
or accused person is a police member or not, it depends on the merits
of the case.
However a police member would have intrinsic knowledge
of the facts so it may be prudent to oppose bail until investigations
are
at an advanced stage, particularly if the person is going back to
work at the same place.
75.
The basis on which he concluded that there was a
prima facie
case was
that on the merits there were many anomalies in how the scene was
dealt with. They apparently removed items without cataloguing
them,
there was no senior officer, they did not call the owner of the
property, they did not cordon the area off, items were removed
from
the boxes. The fact that a senior officer was called at 5.30 does not
normalise all of that.
76.
According to Mr Maharaj he was able to see from a
picture that the police van was loaded with goods. He looked at the
photographs
as well as the statements and noted that the security
guard from Stellar Park had seen the van going to and fro with
boxes.
He was adamant that this is not how a crime scene is
dealt with especially one of that magnitude.
77.
It was put to him that in one statement the guard
said he saw something in the back of the van but could not quite make
out what
it was, but in another he said he could see the brown boxes.
Mr Maharaj said that in his view it was not a contradiction but an

elaboration. He thought it was ludicrous to suggest that there was no
prima facie
case.
78.
It was not unusual that the matter was withdrawn
more than once, this happens with many criminal cases. It is also not
unusual for
the charges to change as an investigation progresses. The
charge only becomes important when the accused is asked to plead to
it.
79.
Mr Maharaj was aware that Mr van der Merwe had
pursued his own investigation and had shared information with the
police, having
tracked down the suspects who hijacked the truck. He
was not aware of the truck driver having arrived at the scene that
morning
and not pointing out the plaintiffs.
80.
Mr Maharaj did not believe that the investigation
displayed anything which led to a conclusion that it was malicious
and that his
colleagues had failed to apply their minds. In his
opinion they acted prudently in the circumstances. He would also have
enrolled
the matter had the matter been his.
Mr
van der Merwe
81.
Mr van der Merwe is a risk manager at RTT which
is a courier company. He deals with all crime related issues, losses
and damages
and does the investigations. The company transports stock
for clients from distribution centres to depots using trucks carrying

between one and eight tons. A 15m container travelling from Cape Town
to Johannesburg had gone off grid on the evening of 28 October
2015,
that is the tracking system had stopped updating, and Mr van der
Merwe got a call at about 05h30 on 29 October to say it
had started
updating again. He was given the co-ordinates and went there. He knew
the driver was Joseph but did not know where
he was.
82.
A jamming device has a number of aerials and is
connected to a 12 volt battery. It jams signals for about a 25 metre
radius.
83.
When he arrived there he found the vehicle parked
in the yard. The back door of the container was open. The
registration number
of the horse was FLM687FS. He arrived around
06h15 when Mr Bellingan was there already and the police. There were
a number of cars
outside, and also an Isuzu 8 ton truck.
84.
When he went inside the property he found a
marked vehicle inside the premises and boxes lying everywhere, they
were brown with
purple security tape. The boxes were for TFG, the
Foschini Group, and were mostly for Sportscene, a division of
Foschini that distributes
sportswear. The labels on the boxes did not
say what was inside, one would have to scan the barcode to see what
was inside without
opening it. Most of the boxes were opened and
empty.
85.
He introduced himself to the police and also took
some pictures of the scene and the jammer. After he noticed that the
police were
there doing their work, he went across the road to see if
there was any footage because he noticed a camera at Stellar Park
opposite.
The captain was there with him when he viewed some footage
in the guardhouse. He then got a memory stick, copied it, and handed

it to the police. This was at about 09h00.
86.
When he went back to the scene, the LCRC had been
there to process the crime scene already and they started packing up
the empty
boxes into another 12 ton truck to take them to the
warehouse. Later they found Joseph and interviewed him at RTT.
87.
Mr van der Merwe confirmed that Joseph came to
the crime scene but said he intervied him at his office. The police
took his statement
at the crime scene and also later in more detail.
88.
Mr van der Merwe personally loaded the boxes with
some assistance. They were told that they could take them. He went
back to the
police station the same day and was told that information
from the AVL was that the two vehicles of the plaintiffs had been at
the scene. He was at the police station for about four hours and did
not participate in the interviews of others. His supervisor
and
police officials did most of the questioning. He had to leave the
boardroom where the interviews were done. The first he knew
the
details of the hijacking was when he interviewed Joseph.
89.
Mr van der Merwe then took the court through the
video footage which was displayed in court. It was also handed up on
a memory stick.
The truck arrived at the premises at 23h32. A small
Hyundai delivery vehicle arrived at 23h42, went inside and left again
at 00h03.
The 8 ton truck arrived at 00h05 and waits outside. At
00h11 the security guard comes outside and speaks to the driver.
90.
There is quite a bit of activity from the time of
the truck arriving until about 00h40. This includes someone doing
something on
the wheel of the 8 ton truck on the street.
91.
The hijacked truck begins manoeuvring back and
forth at 01h20 and is still moving when the police arrive at 01h23.
They are shown
to be interested in the 8 ton truck.
92.
The security guard comes out to the police and
the police get out of the vehicle. The hijacked truck is still inside
with its hazards
on. The police go into the premises with the
security guard. The truck is still moving. Then at 01h27.56 people
start jumping over
the fence. One runs and another walks away.
93.
At 01h46 two people emerge and get into the
police vehicle. They drive off. They return at 01h52. The left front
light is not working.
One person gets off and goes to the gate and
the vehicle enters.
94.
At 02h02 the Stellar Park security guard flashes
his light at the gate. Then the police vehicle exits again. Until now
the truck
driver of the 8 ton has remained in his truck. He then
approaches the van, speaks to someone in it, it drives off and he
gets back
into the truck.
95.
The police van returns at 02h13. It exits again
at 02h20. In the intervening time flashlights can be seen moving
inside the premises.
It returns at 02h30. The driver opens the gate
himself. At 02h36 the van exits again. This time both lights are
working. It is
back at 02h48, and leaves again at 02h53. A police
vehicle arrives at 03h02 and exits at 03h07. It has its lights off as
it leaves.
It returns at 03h26 and leaves at 03h49.
96.
At 04h11 what appears to be another vehicle
arrives because a different light is not working. It exits at 04h18
with both lights
working. A vehicle arrives at 04h25 and enters. As
it gets later and brighter, there are more cars and people going
past. It can
be seen that there is some activity and people are
brought in from the street to help with what Mr van der Merwe
believes is the
loading of empty boxes into the truck. He says all
the boxes found on the truck were empty.
97.
It is possible to see boxes and someone moving
with boxes in the police’s presence at 05h09. At 05h10 a
policeman comes outside
and is on his phone. He takes a passer-by
inside with him at 05h11. Mr van der Merwe believes the policeman had
to come outside
the property to be out of the radius of the jammer.
98.
While the policeman is standing by the gate
people can be seen inside the property. There is also someone in the
truck. It can be
seen that boxes are being thrown in.
99.
At 05h13 a policeman comes outside and walks up
and down the street. A police vehicle approaches with only the left
hand light working.
Another police vehicle exits the property. The
two vehicles stand next to each other with the one policeman in
between. The two
vehicles drive off separately by 05h17, but the one
policeman is still outside on the telephone.
100.
People can be seen moving boxes until around
05h30. A police vehicle arrives at 05h32. It goes further into the
property in front
of the hijacked truck. Mr van der Merwe says he saw
the tracks of this movement later.
101.
A policeman and the driver of the 8 ton truck
emerge and are standing by the truck talking. The driver gets into
the truck and then
comes out and they cross back to the scene. This
is at about 05h39 and then the gate is closed again.
102.
A number of people leave at 05h41. A police
vehicle exits at 05h44. There is something in the back of the vehicle
but it cannot
be seen clearly what it is.  At 05h53 it can be
seen that there is still activity with the boxes. This is after the
jamming
device turned off and also after Mr Mathebula says he called
Mr Sibanda. Mr Sibanda arrives in a Nissan Tiida at 05h58. Another

police vehicle arrives and parks on the verge. The Tiida parks next
to the police vehicle.
103.
Another police vehicle arrives and enters the
property. There is still movement with the boxes at 05h59.  That
vehicle leaves
at 06h06. The other police vehicle moves into the
driveway. Mr Bellingan arrives at 06h07, someone else at 06h12 and
then there
are a number of arrivals. Mr van der Merwe in the midst of
these.
104.
Mr van der Merwe stated that it was the first
time he saw a scene looking like this. He has not before seen
contents removed from
the boxes.
105.
Mr van der Merwe produced pictures of the scene
that he had taken, there was no objection from the plaintiffs. They
show the back
of the truck and boxes piled up, as well as tyre tracks
in front of the truck. There is a picture of the cabin of the truck,
the
jammer is behind the front seat and still connected to the
battery. The photographs show that some boxes still had items in
them.
106.
When Mr van der Merwe arrived at the scene the
captain told them to leave because they were busy working.
107.
He said that they claimed a total loss of R9
million because nothing was left except a few bits and pieces.
The Hyundai could
not have taken all the goods, it was there for too
short a time. A truck is not sent until it is full. He conceded there
was no
way of knowing where the truck was before it arrived at
Stellar Avenue.
108.
The Isuzu truck was still there when Mr van der
Merwe left so he does not know if it was really damaged or if it was
fixed before
it left.
109.
Mr van der Merwe conceded he did not get footage
of what happened after the police arrived, or get testimony from the
person who
had been on duty at Stellar Park, he said that was the
police’s job.
110.
When it was put to Mr van der Merwe that the
boxes loaded back into the truck were full boxes, he said they only
found empty boxes
or boxes with a few units in them. Mr van der Merwe
could not explain where the invoices and inventory for the contents
of the
truck were. He said they had been provided to the police
later. At the scene only the manifest was handed over.
111.
It must be noted that although Mr van der Merwe
speculated at times when explaining the video footage about what was
happening,
and what it meant, the footage itself and the times of
events are not at issue.
THE
PLAINTIFF’S CASE
Constable
Mathebula (before video footage)
112.
Mr Mathebula was the plaintiff’s first
witness. He is the third plaintiff. He began his testimony before Mr
van der Merwe
adduced the video testimony but was recalled to deal
with Mr van der Merwe’s testimony.
113.
Mr Mathebula has been a member of the SAPS since
2007.
114.
He was arrested in the early hours of the morning
of 30 October 2015, along with the other three plaintiffs. He signed
the notice
of rights at about 01h35 that morning. It said that he was
charged with theft. 30 October was a Friday and the first appearance

in court was on Monday 02 November. At that first appearance they
were charged with robbery with aggravating circumstances. This
was
the hijacking. They were told they would not get bail. They were sent
to Johannesburg Prison for seven days. On the second
appearance,
after seven days, they were told there would be an ID parade relating
to the hijacking. They were then sent to Brixton
for a week because
the parade was to be held there. They then went back to court and got
bail the following day at a different
court. By that stage the charge
was now only theft.
115.
He was not aware of a charge of defeating the
ends of justice.
116.
On the night in question Mr Mathebula was driving
the vehicle in Sector 2 and was accompanied by Mr Nghonyama. The
shift is from
18h00 to 06h00 although they start at 17h45. Shifts
occurred in cycles of four days – two day shifts followed by
two night
shifts. This was the first of two night shifts.
117.
On their patrol he and Mr Nghonyama noticed a
truck parked in the road at Stellar Avenue. It was a large white
truck and a spare
wheel was leaning against its side together with a
metal pipe or rod. He thought perhaps it had a puncture. According to
him he
used to work with trucks and that is what gave him this idea.
However he could not tell what kind of truck it was. He later
testified
that there was no puncture, the wheel and rod were there to
make it look like there was.
118.
They stopped near the truck, facing it, and heard
voices on their left hand side, and alighted. He thought this was
around 2am.
They heard some noise and went to see, they found a large
gate and a high wall. They opened the gate which was not locked and
as
they entered the yard people started running away. He and his
colleague split up, chasing different people. There were at least
six
people.
119.
He then heard his colleague calling him, and he
went towards him. He found Mr Nghonyama near the wall looking very
dirty. He had
also heard a gunshot. A person had jumped out of a
truck on the property and he and Mr Nghonyama started fighting and
when Mr Mathebula
arrived the man had just jumped over the wall.
120.
Mr Nghonyama’s firearm had fallen during
the scuffle and he could not see where it had fallen so they both
started looking
for it. After they found it they discovered that the
person who jumped over the wall had left behind his t-shirt which had
come
off in the scuffle. They also found a purse with a bank card and
a driver’s licence. It was a high wall the same height as
the
wall at the front of the property.
121.
The two policemen then came across the caretaker
or security guard of the premises, Mr Banda. They started to question
him. They
had already assessed the place and looked around so now had
to ask what was going on since people ran away and the truck driver

had run away. There were also another two trucks parked inside. The
rear doors of the trailer of the first truck on the premises
out of
which the driver had jumped were open. It was empty, there was
nothing there. There were some cardboard boxes scattered
on the
ground, some were open. So they then asked Mr Banda what was
happening as they were walking to the front of the truck. Mr

Nghonyama got into the truck and found a phone there, and told him he
had found one. Mr Banda told them the people had asked to
come in to
open the goods. They asked him who owned the goods and he could not
say, so they knew they had a “situation”.
122.
They then decided to take Mr Banda with them and
drive around to the back to see if perhaps the driver would see them
and come to
them. They all then got into the police vehicle and drove
around past a squatter camp to the back of the property. They saw a
person
who Mr Banda identified as the driver, they called but he ran
away. They went back to the scene and saw a person approaching the

truck on the street. Mr Banda said he was the driver of that truck on
the street.
123.
Mr Mathebula told the driver through the window
to get into his truck and stay there. They then went back inside the
premises. He
had to use his vehicle’s lights because it was
dark. He then said that his crew member, Mr Nghonyama had remained at
the
yard and he had to tell him what had happened.
124.
They then spoke further to Mr Banda but he told
them nothing. Mr Mathebula then took him to the police station. He
told him he was
arresting him because he was not telling the truth.
It is not clear why he did not in fact arrest him. He did not know
the time.
It was possibly between half past two and three am. Mr
Banda sat in the front seat beside him as they drove to the station.
125.
He said that people sometimes change their mind
when they are at the station. At the station Mr Banda told him that
people asked
him to let them offload the goods but he could not give
their particulars. He had sometimes seen them but he did not know
them.
126.
Mr Mathebula said that he parked outside the
Client Services Centre and spoke to Mr Banda in the parking lot. They
did not go inside.
Mr Peter’s version was untrue. Mr Mathebula
asked Mr Banda two or three questions at the station, and then they
went back
to the scene where Mr Mathebula explained to Mr Nghonyama
that Mr Banda could not give me suitable answers. He found Mr
Nghonyama
with the driver, Mr Simba, who he had cuffed. He had been
at the station only about ten minutes. There were some other SAPS
members
there in the charge office.
127.
The gate of the premises was closed while they
had been away. When they returned he drove in to the premises and
closed the gate.
There were boxes there and if the gate was open
someone may just see a box and take one. Mr Nghonyama had arrested Mr
Simba and
he was seated inside.
128.
There were countless boxes on the property. Some
were open, there were some bags and some goods had been put in bags.
There were
many things lying on the ground. Mr Simba had been
handcuffed because he had wanted to go away. He said he had been sent
by his
boss to load boxes onto his truck. He did not know where his
boss was. Mr Mathebula then decided to take Mr Simba to the police

station to question him, leaving Mr Nghonyama and Mr Banda behind. He
put Mr Simba at the back of his vehicle. He wanted to take
him to the
police station to show him he was serious. He also spoke to him in
the driveway outside the Client Services Centre.
129.
Mr Simba said he was given an address to go to to
load the boxes. He did not know where they were from. Mr Mathebula
asked him to
phone his boss to come to the station. His boss came on
the phone and asked to speak to him, Mr Mathebula cannot remember his
name.
Mr Mathebula asked him to come to the station with the
invoices. He said he was coming. He said he stays in Amalgam. Mr
Mathebula
told him that if he did not come then he would address the
driver and book the boxes. He said he was coming. Mr Mathebula was at

the station with Mr Simba for only about ten minutes. The drive
between the scene and the station was about four minutes.
130.
While they were back at the scene Mr Mathebula
asked Mr Simba to call his boss again and he again said he was
coming. He asked Mr
Simba if he knew where his boss stayed and he
said in Production Road. So they went out again, to see if Mr Simba
could point out
the boss’s place. He did not do so. They went
back to the scene.
131.
This was
according to him the fifth time they entered. They then decided to
start loading the goods on the truck because when one
finds goods
there is a suspicion they have been stolen from another place. Before
doing that Mr Mathebula phoned the Client Services
Centre. He spoke
to Constable Silikhane. He called on the landline 011 473 6219.
Constable Silikhane was the commander.
[1]
Constable Silkhane said he would call the station commander and get
back to Mr Mathebula. But Mr Mathebula decided to call the
station
commander, Mr Sibanda, himself. He thought it was after four. Mr
Sibanda said that they should load the goods on the truck
and book
them at the station.
132.
There were a lot of boxes. The truck was almost
full because they loaded so many boxes. While they were loading, Mr
Banda then said
to him there was a jamming device. He then showed Mr
Mathebula it was there in front of the truck between the driver’s
seat
and passenger seat, connected to a battery. Mr Mathebula had
seen a different kind of jammer before. It was then that he thought

the truck had been hijacked. There were perhaps between thirty and
fifty boxes still on the ground, some were torn open.
133.
Mr Mathebula then phoned Mr Sibanda again to say
that they found a jamming device and they think the truck was
hijacked. Mr Sibanda
then said he was coming to the scene. After he
arrived Mr Mathebula “briefed him” and Mr Sibanda said
the scene must
be cordoned off and role players called to the scene.
134.
Mr Mathebula was very surprised that he was
charged with the theft of 337 boxes because he did not know how they
came to the number.
The boxes had according to him been loaded on to
the truck and moved from the scene without counting. Mr Mathebula had
handed the
scene over to Detective Goodgall when he arrived but he
continued to assist him.
135.
According to Mr Mathebula Mr Bellingan had not
told the truth. Mr Sibanda arrived first at the scene. Then Mr
Bellingan arrived
and Mr Mathebula went and introduced himself but Mr
Bellingan did not want to speak to him. He then told him it was their
truck
and it had been hijacked and a case had been opened.
136.
Mr Mathebula said that Mr Sibanda arrived at
something past five, then the RTT people. Then other police units and
role players
who had been called by Mr Sibanda. Mr Mathebula spoke to
Mr van der Merwe when he arrived and showed him the phones they had
found
and the two suspects but he did not want to listen to him.
137.
Mr Matlou and Mr Maluleke, the first and second
plaintiffs were only passing, they never entered the premises. They
came to the
scene around a quarter past five while Mr Mathebula was
speaking to Mr Sibanda on the road (on the phone). They asked him if
he
was alright and he said he was and they went away. He did not tell
them what was happening because his life was not in danger and
he had
already contacted people who would assist him. He would only seek
backup when his life is in danger or when a housebreaking
or robbery
is in progress.
138.
Mr Mathebula said that after Mr van der Merwe
arrived the driver who had been hijacked also arrived and “they”
were
introduced to him, he did not say by whom. The driver identified
the truck and said he had been hit on the head with a firearm and
his
phone taken. Mr Mathebula showed him the phone from the truck but it
was not his. This was much later between 08h00 and 10h00,
there were
lots of people there by then. He would have pointed them out if they
had been the robbers.
139.
RTT then brought another truck and took the boxes
away. They then decided to arrest Mr Banda and Mr Simba for
possession of suspected
stolen goods. So they took them to the
station and charged them and opened a case. They saw them when they
were in Johannesburg
Prison but not after that.
140.
After Mr Mathebula and Mr Nghonyama had arrested
Mr Banda and Mr Simba they were asked to remain at the station
because the complainant
(RTT in the person of Mr van der Merwe) was
not satisfied. They were asked by a number of people what happened.
Colonel Sithole
from the PIU told them he was happy with their
success at discovering the truck and arresting two suspects. However
they were told
to stay even until their shift was to begin the next
night. They called them individually to a boardroom where a number of
people
were there asking questions. Mr van der Merwe said they have
them on footage stealing but Mr Mathebula never saw that footage. He

saw it first on Carte Blanche that December.
141.
They were eventually arrested on the morning of
30 October at about 01h30. They had been on the go for over thirty
hours and it
was twenty four hours since they had discovered the
truck.
142.
According to Mr Mathebula if you find a truck and
stolen goods you must take it to the police station and book it
there. That is
the procedure.
143.
They had a disciplinary hearing at which they
were acquitted of misconduct but this was much later.
144.
Mr Mathebula was taken to his vehicle log and
explained that he had gone out of his sector before discovering the
crime scene at
something past 12, to go an look at a car he wanted to
buy in a garage. After discovering the crime scene he only went out
of the
Sector to go to the police station and to go to Production
Road.
145.
When they were arrested they were still in their
uniform and were taken to Sophiatown in their uniform. It was very
painful being
a policeman and being detained with criminals. The
prosecutors and the charges kept changing and he did not know why.
146.
According to Mr Mathebula it was not true that
one of the suspects (Mr Simba) were wearing brand new shoes in his
presence as Mr
Bellingan testified. When Mr Bellingan arrived Mr
Simba and Mr Banda were in the van. And nobody put on takkies in
front of Mr
Mathebula. He conceded that Mr Simba may have been
wearing them all along and agreed that Mr Goodgall had identified the
takkies
worn by Mr Simba. He denied that he permitted Mr Simba to
take the shoes because he assisted Mr Mathebula in looting. He also
denied
that it was “payment” for helping reload the
boxes.
147.
Mr Mathebula’s explanation for not noticing
that Mr Simba was wearing shoes that resembled the goods was that it
was not his
duty to notice, it was the detective’s duty to
notice, and anyway Mr Mathebula had been concentrating on the goods
rather
than on Mr Simba.  He said he did not fill in the SAP13
when Mr Simba was arrested. He had already handed over to Mr Goodgall

by then and it was Mr Goodgall’s responsibility.
148.
According to Mr Mathebula he did his preliminary
investigation between 01h20 and 06h00 to follow the information and
make the right
decision, and then by 06h00 everyone was there.
In the preliminary investigation he discovered that the truck had
been hijacked
and the alleged owner did not come and two suspects
were arrested. He ascertained that the truck had been hijacked when
he saw
the jamming device at 05h30 when Mr Banda showed it to him.
Only Mr Nghonyama had seen inside the truck and Mr Mathebula did not

know about the jammer until it Mr Banda showed it to him. He said
that the fact that he did not do something did not mean he did
not do
his work of the preliminary inspection. He could not explain how Mr
Banda went from being extremely uncooperative to being
so
co-operative that he then showed Mr Mathebula the jamming device.
149.
Despite
that he was adamant that they had been investigating the truck and
the boxes for five hours. He later said they were loading
boxes for
five hours.
[2]
150.
According to Mr Mathebula Mr Sibanda was not
telling the truth when he said he did not tell them to load the
boxes, and when he
said that he told them to stop tampering and to
put tape around the scene. He said Mr Sibanda could not have told him
that since
he, Mr Mathebula, told him about the scene. He said that
when Mr Simba and Mr Banda said in their statements that another
person
told them to stop loading this meant Mr Mathebula not Mr
Sibanda. He stated that Mr Bellingan could not have seen him
tampering
because he could not have been tampering in Mr Sibanda’s
presence.
151.
Both Mr Banda and Mr Simba’s statements
were consistent that they were made to wait at the police station for
some time, and
were then brought back to the scene forced to load
boxes until others arrived and told them to stop. Mr Simba states
that he enquired
about who offloaded the boxes. Mr Mathebula did not
agree.
152.
Mr Mathebula said that he co-operated with the
investigators the whole day of 29 October and then decided not to
co-operate only
after he was “given his rights”. That is
why he said he would give his statement to the court. However this
was not
put to any of the defendants’ witnesses.
153.
He could not tell them where the boxes were
because he did not know. These were senior people but he did not know
them.
154.
In cross examination he also said that he went
out numerous times to the station and also to Production Road. He
denied that he
had said it had been four times or five times. He also
said he had to go and check if Mr Simba’s boss had arrived and
perhaps
to go to the toilet.
155.
On being shown the vehicle log and photographs he
said that he did not remember whether he had been away from the scene
for about
an hour. It also showed that he had been to Production Road
more than once.
156.
He did not report the loss of the pistol or that
there was a gunshot because he thought it was not important. He then
said that
Mr Sibanda was informed and it was up to him to report it.
157.
On being asked in cross examination why he took
Mr Banda with him to go and look for the driver of the hijacked truck
he said that
because Mr Banda had told him that there was a jammer on
the truck there must have been a conversation between Mr Banda and
the
driver of the hijacked truck and so he may be able to point him
out, also if the driver did not have his shirt he could be pointed

out.
158.
He said that even though he spent very little
time at the crime scene, because he was busy driving around doing his
preliminary
investigations, it was fine because his crew (Mr
Nghonyama) was at the scene. However at some point Mr Nghonyama was
also driving,
this was before they found the scene and again at about
05h15. He said that nevertheless someone was always at the scene.
Anyway
he says that he went to different places each time he went
out, the squatter camp, Production Road and the police station.
Mr
Mathebula (after the video footage)
159.
Mr Mathebula testified that he opened the police
van at the back to put Mr Simba inside because Mr Simba wanted to go.
Mr Mathebula
then went to talk to Mr Nghonyama about Mr Simba and Mr
Simba started banging on the side of the van from the inside. Mr
Mathebula
then let him out and asked him what was the problem and he
said his boss had phoned him and he was at Production Road so Mr
Mathebula
said they would go there. They then rushed off to go there,
but Mr Mathebula had forgotten to close the door of the ban so Mr
Simba
closed it. He then got in. He was sitting in the passenger
seat. This incident was at 04h17.
160.
Mr Mathebula reiterated that the boxes they
loaded on the truck were not opened and had goods inside. There were
also some on the
ground that were empty and opened. Only full boxes
were loaded, empty boxes were piled up.
161.
Mr Mathebula confirmed that he had got people off
the street to help. This was for full boxes not empty boxes.  He
then said
that “we” loaded the full boxes from the
hijacked truck to the second truck that RTT brought. Mr Goodgall
completed
the SAP299 but Mr Mathebula had seen it when it was handed
over.
162.
The truck outside on the street was driven away
by the owner – there was nothing wrong with it.
163.
Mr Mathebula testified that the lights on the
vehicle they were using were problematic. If they are on dim only one
goes on and
if on bright both go on.
164.
When Mr Mathebula and Mr Nghonyama were at the
police station later on Mr van der Merwe came to them while they were
in the car
and made them switch the lights on and off and on to
bright and off.
165.
Mr Mathebula accepts that he went in and out of
the premises 9 times. He does not know how many of those times he was
with Mr Simba.
He said that sometimes he was with him and sometimes
not. When Mr Simba made phone calls he left him at the premises.
166.
Mr Mathebula conceded that when the incident with
the open door occurred at 04h17 his narration is not consistent with
the video
since the vehicle does not slow down for someone to get in
after the door is closed as he described. However he later said that

it happened as he says.
167.
He insisted that he had already provided an
adequate explanation for his trips. He also repeated that he was busy
with the boxes
that is why he did not concentrate on the truck.
However he also conceded that he was away from the premises a lot.
168.
He also denied that he had said he was trying to
find Simba’s boss. He concentrated more on the truck outside
than the one
inside because he said you still had to check a truck if
it was used in the commission of the crime. This was despite the fact
that the truck inside was clearly connected to the boxes which he had
testified he thought were suspicious.
169.
Mr Mathebula testified under cross examination
that they took 19 minutes when they first arrived to search and
secure the scene
because they were doing their job.
170.
Mr Mathebula insisted that he was correct to
bring people in off the street to load boxes. He said it was his
crime scene so he
could do that. He compared it with asking a woman
on the street to help search a female suspect if you thought she had
drugs on
her. He denied that inviting outsiders in was allowing
tampering with the crime scene.
171.
Mr Mathebula could not explain under
cross-examination why he was outside the crime scene while civilians
were inside loading boxes.
In re-examination he said that Mr Sibanda
had called him for directions.
172.
Mr Mathebula says they took 19 minutes when they
first arrived to search and secure the scene. However there was no
evidence of
them having secured the scene. His evidence was that they
surprised people who were running away, Mr Nghonyama’s gun went

off in a scuffle, and he found Mr Nghonyama looking dirty. They then
found Mr Banda and he went out with him.
Mr
Nghonyama
173.
Mr Nghonyama was asked to explain the incident of
the open door. He said that after Mr Simba told them his boss had
found and that
his boss was somewhere at Production Road, Mr
Mathebula started leaving with the door open. Mr Simba then jumped to
close the door.
There was nothing inside. This did not explain how Mr
Simba then got into the vehicle which moved off immediately.
174.
Mr Nghonyama testified that he had found the
drivers licence and bank cards, a Samsung cellphone and a jamming
device. But he did
not book the things, Constable Goodgall did. The
items were handed to him at the scene.
175.
Mr Nghonyama confirmed that they found the Isuzu
truck parked on the road. He said that he checked the wheels of the
truck and they
were not damaged. There was no one in the truck when
they first arrived.
176.
When they entered the premises he saw boxes on
the ground, some were open and there were loose items all over the
yard, such as
Nike and Puma takkies, jeans and squeeze bottles.
He does not know why squeeze bottles were not on the charge.
177.
He saw someone alight from the horse of the truck
on the premises, and that person ran away. There were all sorts of
other people
who also started to run. Mr Nghonyama started chasing
the driver and fired a warning shot. There were perhaps six or seven
other
people.
178.
Mr Nghonyama caught up with the driver, started
to wrestle, and called Mr Mathebula. He caught hold of the driver’s
shirt
and it remained in his hands when the driver jumped over the
wall. Mathebula arrived after the person had run away. The firearm

had fallen to the ground. They looked for it and found it. This took
about a minute not more.
179.
Mr Nghonyama remained on the premises when Mr
Mathebula and Mr Banda left. They were going to the police station.
The scene could
not be left unattended. Mathebula was going to the
station to interrogate the driver because people tended to give
information
more easily at the station.
180.
Mr Nghonyama then found Mr Simba outside. He
could not remember all the details of what happened. He also drove in
the morning hours.
He knows that sometimes Mr Mathebula left alone
and sometimes with Mr Simba. He was trying to find Mr Simba’s
boss.
181.
Mr Nghonyama went alone in the van to the police
station, and also to the garage for airtime and to Production Road to
monitor.
It was a short road. They were monitoring it to see if Mr
Simba’s boss was there.
182.
Mr Nghonyama denies that he was stealing
anything.
183.
When Mr Mathebula and Mr Banda were gone the
first time, Mr Nghonyama was inside and heard the engine of the truck
outside. Mr Simba
was putting the spare wheel back in the truck. Mr
Nghonyama instructed him to switch off and go with him into the
premises. This
was some time just after 02h00. He questioned him and
was told that the truck was there to fetch the boxes. When Mr
Mathebula came
back he told him what had happened.
184.
Mr Banda and Mr Simba did not give satisfactory
information so Mr Nghonyama and Mr Mathebula decided to phone the
station. Then
Mr Mathebula got hold of Mr Sibanda who told them to
load the boxes on the truck. So the four of them started loading
boxes and
later on got some passersby to assist. The boxes were not
empty. Most of them had something inside although they were opened.
The
empty boxes were left as they were. Some boxes were sealed.
185.
When they finally stopped loading the truck was
three quarters full. There were still some sealed boxes on the
ground. They stopped
loading when Mr Banda came and told them there
was a jammer. Mr Sibanda then also arrived. Mr Bellingan could not
have seen them
interfering with the boxes.
186.
Mr Nghonyama confirmed that they arrested Mr
Simba and Mr Banda for possession of stolen goods. They were both
taken to Brixton
because there are no cells at Langlaagte.
187.
When they went back to Langlaagte they were told
not to leave because Mr van der Merwe was not happy. So they stayed
until they
were arrested on the morning of 30 October.
188.
When he was asked what happened at the scene he
told them. He was questioned for thirty or forty minutes.
189.
He confirmed Mr Mathebula’s evidence about
the various appearances, charges and the ID parade that did not
happen.
190.
When Mr Matlou and Mr Maluleke drove past they
stopped and the four started to chat. Mr Mathebula and Mr Nghonyama
did not tell
them about the crime scene because by then Mr Sibanda
was on his way.
191.
It is only necessary to seek backup when your
life is in danger. There was no danger.
192.
Mr Nghonyama made a statement in case 208 which
was the case against Mr Banda and Mr Simba. He did not make a
statement in case
number 213 which was the case against the
plaintiffs. His statement is commissioned by Mr Mathebula and Mr
Mathebula’s is
commissioned by Mr Nghonyama.
193.
Mr Nghonyama had reported the warning shot to his
commanders that is why he did not put it in his statement. He also
did not put
in his scuffle with the driver because he did not think
it was important to put everything in.
194.
It was put to him that Mr Simba’s truck had
to have had something wrong with it because it did nothing for almost
an hour
after it got there before he and Mr Mathebula arrived. He
said that the plan had been for Mr Simba’s truck to enter the
premises
after the hijacked truck had left. It had definitely not
been broken.
195.
Mr Nghonyama also asserted that the many trips
were part of their investigation, they were trying to find Mr Simba’s
boss.
In addition he himself went to the police station to use the
toilet. He also went to buy airtime at the garage. On being asked
what else he investigated, he maintained that he was following
information given by Mr Simba and Mr Banda. Apart from going to look

for Mr Simba’s boss he could not remember what other
investigations they did. While inside the property, his
investigations
were concentrating on the boxes because he thought
they could have been stolen from somewhere.
196.
Mr Nghonyama did not think there was anything
suspicious about Mr Simba’s truck. The only suspicious thing
for him about the
hijacked truck was the jammer which was found in
the morning. He did not know what a jammer was before it was pointed
out to him.
And at some point they started to load, even though they
had not investigated the truck itself. He stated like Mr Mathebula
that
if you find boxes you have to take them in with the suspects.
197.
He does not know the time Mr Sibanda was called.
Mr Mathebula called Mr Sibanda and he said that Mr Sibanda said they
must load
the boxes. The loading started at around 04h18, and he did
not know what time Mr Sibanda was telephoned. He only knows what Mr
Mathebula told him about having phoned Mr Sibanda and having been
told to load. He only discovered what a jammer is when the guy
from
RTT told him what it was.
198.
He was charged with the other plaintiffs for
theft of 337 boxes with a value of R3.2 million. He does not know why
the AVL for the
vehicle in which the first and second plaintiffs was
often in the same vicinity as he was in and at similar times. He did
not see
them when he was driving. It was put to him that the vehicle
of Mr Baloyi the sergeant also on duty that night was in the vicinity

of Stellar Avenue at about 02h15 so they could have had help if they
needed it. But they did not ask for help because they wanted
to do
their own investigation in person. He did not know why these other
vehicles would have been in his sector.
199.
Mr Nghonyama stated that since he found the boxes
he had to investigate them.
200.
A statement from Mr Simba’s boss was put to
him which he said he was unaware of. Mr Tumeko, Mr Simba’s boss
said he
lived in Bedfordview, not near the area at all. Mr Nghonyama
said that this was the owner of the truck and which was not the same

as the boss, despite the fact that the statement said that Mr Tumeko
employed and paid Mr Simba. That morning they had been looking
for
the boss because they had to follow up the information given to them.
They did not phone control to ask for information from
the licence
disc and plates. Although they could have done and that would have
been “investigation”.
201.
Mr Nghonyama said that his pocket book had been
taken by the people who arrested him, and the same with the other
plaintiffs. However
he did not write in it. He would have written in
it later.
Constable
Glaxton Goodgall
202.
Mr Goodgall was at the time of the incident a
detective and had been since 2009. At the time he gave evidence he
was doing “crime
prevention”. He had previously consulted
with the defendants’ counsel but was not called by the
defendants. He had
been the detective on standby attending to crime
scenes around Langlaagte. He would have seven days on and seven days
off, and
in the seven days on shift would investigate all crime
scenes in that time.
203.
Mr Goodgall was called to the scene by the charge
office on the morning of 29 October. He was called at some time
between 07h30
and 08h00. Mr Mathebula and Mr Nghonyama were at the
scene. He found a horse and trailer parled inside with clothing lying
around
and open boxes of clothing items such as sneakers and jeans
scattered all over the yard branded TFG. The horse and trailer had a

Free State registration. Mr Goodgall called the photographer to the
scene.
204.
Mr Goodgall saw a suspect wearing shoes similar
to the ones in the yard and asked him about them, and he said he took
them and exchanged
them with his while he had been taking boxes. Mr
Goodgall then also found the suspect’s takkies which were a
different brand,
and the suspect confirmed. He got the photographer
to photograph the suspect with the new and the old shoes.
205.
Some people from RTT were there but he did not
know how. Mr Goodgall and  the team proceeded to process the
scene and handed
over the remaining stock in the yard and the
trailer. He does not know how many boxes. There was clothing
everywhere and in all
the boxes. There were also empty boxes and
sealed boxes. There were also boxes in the trailer. The boxes in the
trailer were still
sealed.
206.
One of the trailer doors was closed and one was
open. Not many boxes had been taken out, maybe a metre’s
length. The trailer
was packed to the roof. They had to take the
truck to the pound since it was hijacked so he told the person from
RTT that they
had to bring another truck to take the stock, which
they did and the stock was transferred, We could not book the stock
in at the
station because we had nowhere to store it. The boxes were
not empty.
207.
There was too much to count so they referred to
the truck manifest and assumed that what was there was what was left.
It is not
clear what this meant. There were some loose items which
could not be repacked. They agreed on a number of what was taken out.
Nobody knew exactly what was missing. They did not count the boxes
while transferring them because some items were loose. And snice
the
stock had been recovered they thought it was less important to
itemise.
208.
The R3.2 million in the charge sheet was an
estimate. No calculations were done.
209.
According to Mr Goodgall Mr Mathebula told him
that Mr Simba and Mr Banda had been arrested but did not tell him
that they had assisted
Mr Mathebula and Mr Nghonyama to load boxes.
Nor did Mr Mathebula tell him that he had originally wanted to remove
the truck from
the premises.  He did not know what Mr Sibanda
had said. Nor had Mr Mathebula told him how long he spent on the
crime scene.
He just said they had had to chase a lot of suspects. Mr
Goodgall first saw the suspects when Mr Mathebula showed them to him
in
the back of the police van. He did not know what happened to Mr
Banda and Mr Simba later, because the docket was taken from him
at
the station.
210.
Mr Goodgall said that if he came upon a scene
like the one at issue who would ascertain if it was a scene of crime
and if it was
would not touch anything until the relevant role
players arrived. That is the normal procedure but he can’t say
precisely
because they had to use their discretion. He would have
reported the scene immediately if he had found it and found the
things
scattered as they were.
Constable
Matlou
211.
Mr Matlou is the first plaintiff. He was the
driver of the vehicle with call sign LL23. He was with Mr Maluleke
the second plaintiff.
They had been posted to patrol Sector 1 on the
same shift as the third and fourth plaintiffs.
212.
At the time when the two police vehicles were on
the street, at about 05h15, he had been driving on Stellar Avenue and
saw Mr Mathebula
on the street. He stopped to greet him. Mr Mathebula
did not tell him anything. They only greeted each other. Mr Matlou
then continued
driving, he was patrolling. Only the left hand
headlight was working on his vehicle. It had been that way for quite
a while. He
was on Stellar Avenue only just after 5 in the morning.
Just before he left Mathebula he saw another vehicle. He carried on
patrolling,
stopped somewhere to buy cakes and continued. He then
reported to the station for the end of the shift. He never entered
the crime
scene.
213.
Mr Matlou went home after his shift to sleep. He
came back to report for the next night shift and he and Mr Maluleke
were posted
together to Sector 2. They went on patrol. They were then
called back by the charge office. When they arrived back Mr Peter
told
them they were wanted in the board room. They had to wait
outside the boardroom. There were a number of members inside
including
Captain Sina who was the head of the detective section. Mr
Matlou and Mr Maluleke were questioned separately.
214.
Mr Maluleke was asked if he had been to the crime
scene and he said he knew nothing about the crime scene. When he was
told where
it was he said he only passed there just after five and
greeted Mr Mathebula in passing. He says he asked them about the AVL
(vehicle
log) and they told him it was still being printed.
215.
Mr Maluleke went in after Mr Matlou. After that
they were all called in and told they were being arrested for theft
of some boxes
of clothing. The arresting officers took their
insignia, their belts, firearms, handcuffs, pocket books, wallets and
any loose
items. Mr Maluleke did not remember everything. They were
handcuffed and verbally abused, and pushed into separate cars and
taken
to Sophiatown.
216.
Mr Matlou’s lawyer made representations to
court and as a result the charges were withdrawn. But the four of
them were always
together in court.
217.
The vehicle logs were put to Mr Matlou in cross
examination. They showed that his vehicle was idling in one place for
35 minutes,
between 03h05 and 03h40. He things it was at the time
that he was tired so he went to the station to go and rest. His
colleague
could not drive the vehicle because he had no
authorisation.
218.
During that time Mr Mathebula’s vehicle was
at the same place within 0.0004 minutes latitude, which is very
close. He does
not recall seeing them, they may have been driving
past each other. However the log shows that the speeds of the
vehicles were
0km/h. They were parked near one another between 03h19
and 03h23, a period of four minutes. There is one entrance to the
police
station and there are many parking bays. He may not have
noticed them. Mr Matlou also said that he would not say he did not
see
them.
219.
He does not think Mr Mathebula would have brought
stolen goods to the police station.
THE
APPLICABLE LAW
220.
The plaintiffs and defendant were
ad
idem
about the legal test to be applied. It
is not whether there was a
prima facie
case
made out, or whether the defendant is at this stage able to prove the
plaintiff’s guilt, either on a balance of probabilities
or
beyond a reasonable doubt. It is whether, at the time of the arrest
and prosecution, there was objectively a reasonable suspicion
that
the plaintiffs committed the offence.
221.
In terms of section 40(1)(b) of the Criminal
Procedure Act 51 of 1977, ("the Act") as amended:
A
peace officer may without a warrant arrest any person whom he
reasonably suspects of having committed an offence referred to in

Schedule 5, other than the offence of escaping from custody.
222.
The test is
objective, that is it must be shown that there were objective grounds
for the suspicion.
[3]
Once the
suspicion arises there is a discretion to arrest the suspect.
[4]
223.
As far as malicious prosecution is concerned, the
plaintiffs have to prove that the defendants
223.1.
set the law in motion;
223.2.
acted without reasonable and probable cause;
223.3.
acted with malice or
animo
injuriandi
, and
223.4.
that the prosecution had failed.
224.
Simple
negligence on the part of the defendants would not suffice.
[5]
225.
The
standard of proof in these proceedings is the balance of
probabilities. The court has to evaluate the probability or
improbability
of the parties’ versions and determine whether
the party which bears the
onus
has discharged that
onus
.
[6]
ANALYSIS
Wrongful
arrest
226.
It is necessary to separate the consideration of
the third and fourth plaintiffs from the first and second plaintiffs.
There was
very little evidence put forth by the defendants regarding
the first and second plaintiffs. I deal first with the third and
fourth
plaintiffs.
227.
In my view the defendant has shown that there was
sufficient basis on which to found a reasonable suspicion that the
third and fourth
plaintiffs had committed theft of goods from the
truck at 36 Stellar Road. The primary basis for this is the video
footage, and
the manner in which the crime scene was dealt with, as
well as the admitted statements. Adding to this the evidence of the
third
and fourth plaintiffs themselves, it was riddled with
inconsistencies, contradictions and improbabilities. Some examples of
this
are:
227.1.
Mr Mathebula first said he went to the police
station with Mr Banda and Mr Nghonyama and then that Mr Nghonyama did
not go with
them.
227.2.
Mr Mathebula said he called Mr Sibanda twice but
this was not put to Mr Sibanda. It was also put to Mr Hicks that Mr
Mathebula only
called Mr Sibanda after finding the jamming device.
227.3.
Mr Mathebula testified that when he was on the
phone at 05h17 when Mr Matlou’s vehicle went past, he was
calling Mr Sibanda
about the jamming device, and Mr Sibanda told him
to stop loading the truck. However it is only after this that they
starting getting
people in off the street, ostensibly to help them
load.
227.4.
Mr Mathebula and Mr Nghonyama both stated that
the correct procedure at the crime scene was to load stolen goods and
take them to
the station without any photographs or analysis being
done. This was gainsaid not only by the defendants’ witnesses,
but
also by Mr Goodgall.
227.5.
Mr Mathebula testified that they only got
suspicious of hijacking on being shown the jamming device. Before
that they were only
suspicious of the boxes, not of the truck on
which the boxes were found. This is highly improbable.
227.6.
Mr Mathebula alleged that the outcomes of his
four hour long “preliminary investigation” was that they
found the jammer,
and arrested suspects. However none of this
happened in the four hours before the jamming device stopped
functioning.  He
was unable to say with any clarity what had
happened and what his many trips were for.
227.7.
Mr Mathebula also said that they had been loading
boxes for four hours, although he also testified that they only
started loading
boxes after he allegedly phoned Mr Sibanda the first
time, at some time after 04h00. If Mr Sibanda told them to stop
loading when
he called him at about 05h17, then they were only
loading boxes for an hour.
227.8.
According to Mr Mathebula the people who had run
away when the police first arrived were able to unload more boxes
than the third
and fourth plaintiffs were able to load on, although
the third and fourth plaintiffs were there much longer.
227.9.
Mr Mathebula said they opened sealed boxes to see
what was inside, because that was the only way to do an
investigation. However
this was inconsistent with there being a
number of empty boxes on the site.
227.10.
Mr Mathebula and Mr Nghonyama contradicted one
another regarding when and how often Mr Nghonyama drove the vehicle.
227.11.
Mr Nghonyama found it necessary to leave a crime
scene to go and buy airtime for no particular reason, which in my
view is highly
improbable.
227.12.
Mr Mathebula in chief never mentioned going back
to the police station to check on Mr Simba’s boss. He said they
phoned him
again from the scene. Later he tried to justify his many
trips by saying he went to the police station to check if Mr Simba’s

boss had arrived.
227.13.
Mr Mathebula and Mr Nghonyama said they told Mr
Sibanda about the pistol going off but this was not put to Mr
Sibanda.
227.14.
In cross examination Mr Mathebula says that when
driving near the squatter camp they found the driver of the truck
parked outside
(Mr Simba) but in chief he said that they found him in
the street when they came back from driving around the squatter camp.
Later
he said that the original version was correct. He also said
that because the security officer (Mr Banda) told him there was a
jammer
on the truck which it would indicate there was a conversation
between the inside truck driver and Mr Banda because he’d left

his shirt he may be identifiable, which was why he took Mr Banda with
him to look for the driver of the hijacked truck. This is

inconsistent with him only learning of the jamming device after
05h00.
227.15.
After the video footage was shown Mr Mathebula
said he was outside on the phone at 04h17 because Mr Sibanda had
called him asking
for directions. This had not been part of his
version nor was it put to Mr Sibanda. In addition, this was before Mr
Sibanda had
allegedly been told of the jamming device and decided to
come to the scene.
227.16.
Mr Nghonyama contradicted Mr Mathebula in that Mr
Mathebula said the boxes loaded were full and sealed while Mr
Nghonyama said they
were opened and had something inside.
228.
These are only some of the more obvious
contradictions, improbabilities and inconsistencies. As I have said,
even without that,
the video evidence coupled with the nature of the
scene discovered by the “role players” who arrived after
the jammer
was allegedly discovered, as well as the admitted
statements of the security guards and Mr Simba and Mr Banda, was in
my view sufficient
to raise a reasonable suspicion that the third and
fourth plaintiffs had been involved in the theft.
229.
As far as the first and second plaintiffs were
concerned, the only really suspicious circumstance was the 35 minutes
they spent
at the station during which time the third and fourth
plaintiff’s vehicle was very close by for four minutes. The
defendant
has not attempted to show this court any evidence against
them to found a reasonable suspicion.
230.
I am therefore not satisfied that the defendant
has discharged its
onus
regarding
the first and second plaintiffs.
Malicious
Prosecution
231.
As I have stated above the test for malicious
prosecution is entirely different. The plaintiffs bear the
onus
.
Also it was not suggested that a finding of unlawful arrest must
necessarily lead to a finding that the prosecution was malicious,

although it would be relevant to the inquiry, in particular whether
there was reasonable and probable cause.
232.
In my view the plaintiffs have done almost
nothing to attempt to discharge their
onus
and
establish the elements of a malicious prosecution. In particular
there was no effort to establish malice or an
animus
injuriandi
. As far as the first and second
plaintiffs are concerned, it can be assumed that the prosecution
lacked reasonable and probable
cause. However without more I cannot
assume that there was malice. There was not even an attempt to show
that the difference in
their cases was brought to anyone’s
attention. At best the plaintiffs have shown some negligence on the
part of the defendants
in the prosecution and this is insufficient.
Damages
233.
Having
found that the first and second plaintiffs have established that
their arrest was unlawful, I must make some award of damages.
No
evidence or argument was submitted in this regard. However this is
not fatal.
[7]
234.
The plaintiffs have claimed an amount of R2
million each, in my view this is excessive. Having done a survey of
various awards made
in recent years it is my view that an amount of
R700 000 each is sufficient compensation for having been
arrested. This takes
into account that they were police officers,
arrested in view of their colleagues, and incarcerated with criminals
for 17 days.
Their dignity was infringed in addition to their
freedom.
CONCLUSION
235.
For these reasons I make the following order:
(1)
The claims of the third and fourth plaintiffs are
dismissed with costs.
(2)
The claims of the first and second plaintiffs for
malicious prosecution are dismissed with costs.
(3)
The claims of the first and second plaintiffs for
unlawful arrest succeed.
(4)
The first defendant is to pay each of the first
and second plaintiffs an amount of R700 000, together with
interest at the
rate of 10.5% from the date of judgment.
(5)
The first defendant is to pay the first and
second plaintiffs’ costs associated with the unlawful arrest
claim.
____________________________
S.
YACOOB
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for Plaintiff: M Mthombeni
Instructing
Attorneys: TN Ramollo Inc Attorneys
Counsel
for the Defendant: Ms TP Bokako
Instructing
Attorneys: State Attorney, Johannesburg
Date
of hearing: 27 August 2019 – 6 September 2019, 19 September
2019
Date
of judgment: 04 June 2020
[1]
It was
unclear whether Constable Silikhane was male or female.
[2]
It was
actually four hours but the question put to him was five hours.
[3]
Olivier
v Minister of Safety and Security and Another
[2008] ZAGPHC 50
;
2008
(2) SACR 387
(W)
[4]
Minister
of Safety and Security v Sekhoto and Another
2011 (1)
SACR 315
(SCA) at [28]
[5]
Minister
for Justice and Constitutional Development v MOleko
2009
SACR 585
(SCA) at [64]
[6]
Stellenbosch Farmers’
Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) [5]
[7]
Maphoto v The Minister Of
Police
2019 JDR 1675 (GJ)