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[2011] ZAGPPHC 32
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Swalivha v Minister of Safety and Security (32477/2009) [2011] ZAGPPHC 32 (17 March 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 32477/2009
DATE:
17/03/2011
IN
THE MATTER BETWEEN:
LUFUNO
JUSTICE
SWALIVHA
.................................................................................
PLAINTIFF
AND
MINISTER
OF SAFETY AND
SECURITY
..................................................................
DEFENDANT
JUDGMENT
PRINSLOO.
J
Introduction
and background
[1]
At all relevant times, and particularly during September 2008, the
plaintiff was employed as a security officer by Hlanganani
Protection
Services (Pty) Ltd ("Hlanganani") a security business which
was also duly registered in terms of the Private
Security Industry
Regulation Act 56 of 2001. The principal place of business of
Hlanganani was in Langlaagte, Johannesburg.
[2]
From 21 September 2008 the plaintiff and a number of his colleagues
were deployed at the Mafikeng Campus of the University of
North West
("the university") situated some three kilometres from the
Mmabatho police station in Mmabatho, North West
("the police
station"). There was a period of student unrest and rioting and
the security officers were deployed to assist
the police to protect
the assets and interests of the university. During their period of
deployment the security officers were
accommodated at Lerona Lodge,
Mafikeng ("the lodge").
[3]
On Wednesday 24 September 2008 (a public holiday, namely Heritage
Day) the plaintiff and nineteen of his colleagues were arrested
by
the police at the police station. The charges were said to include
theft alternatively failure to give account of goods suspected
of
being stolen in contravention of section 36 of the General Law
Amendment Act 62 of 1955. In essence, the stolen goods were said
to
be some eight cell phones and one calculator allegedly belonging to
some of the students and allegedly stolen by the security
officers
while they were assisting the police to maintain law and order at the
university during the rioting.
[4]
The plaintiff and his colleagues appeared in court on Friday 26
September 2008 when they applied for bail. The bail application
was
postponed to 3 October 2008.
On
that day bail was granted to the officers in the amount of R500,00
each. The matter was postponed to Friday 28 November 2008
for further
investigation and there were further appearances on 16 February 2009
and 7 April 2009. On the last mentioned date all
the charges were
withdrawn.
[5]
In about May 2009, the plaintiff and his nineteen colleagues
instituted action against the defendant Minister for damages arising
from alleged unlawful arrest and detention. Each action was
instituted under a separate case number.
[6]
When the trial came before me, I was told that only this one matter
under this case number, 32477/2009, would be heard, and
the other
nineteen matters would be held in abeyance, pending the outcome of
this case.
[7]
Before me, Ms Swiegelaar appeared for the plaintiff and Mr Mathibedi,
assisted by Mr Manyaga, appeared for the defendant.
[8]
At the commencement of the proceedings, counsel jointly applied, in
terms of Uniform Rule 33(4), for a separation of issues.
The
quantum
of
the claim would be separated for later adjudication. Only the merits
would come before me for decision. I duly made an appropriate
order.
[9]
Counsel for the plaintiff informed me that the following was common
cause between the parties:
the
arrest on 24 September 2008;
the
detention for the periods mentioned;
the
fact that the arrest was effected without a warrant of arrest;
the
fact that the police officers who arrested the plaintiff and his
colleagues acted within the course and scope of their employment
with the defendant Minister;
the
plaintiff had complied with the formalities prescribed in terms of
the Institution of Legal Proceedings against Certain Organs
of State
Act, 50 of 2002;
the
fact that the defendant bore the
onus
to
prove that the arrest and detention were lawful.
[10]
It was agreed that the defendant would start leading evidence.
The
pleadings
[1
1]
The relevant paragraphs in the particulars of claim read as
follows:
3.
On
24
th
September 2008 and at Mmabatho the plaintiff was arrested without a
warrant by various members of the South African Police Services,
acting within the course and scope of their employment with the
defendant.
At
the time of the arrest the member/s of the South African Police
Services had no reasonable and/or probable cause for doing so
nor did
he/they have any reasonable belief in the proof of the information
given.
5.
Thereafter
the plaintiff was after having been arrested detained from 24
1
September
2008 to 3
rd
October 2008 on which day bail was granted to the plaintiff. On 7
April 2009 all charges were withdrawn against the plaintiff in
the
magistrate's court Mmabatho. ...
7.
As
a result of the aforesaid the plaintiff suffered damages ..."
[12]
With regard to the allegations made in paragraphs 3, 4 and 5 of
the particulars of claim, the only response offered in the
plea is
the following: "
Ad
paragraphs 3 to 5
Save
to admit arrest, the defendant denies the remaining allegations
contained in these paragraphs."
[13]
Bearing in mind the
onus
which
rests on the defendant, this plea is totally inadequate and
excipiable. No exception was noted.
[14]
At the pre-trial conference in September 2010. the plaintiff asked
and minuted the following question:
"The
plaintiff requests the defendant to set out clearly and precisely
their version of how the incident occurred, out of which
this claim
arose?"
[15]
The following answer was furnished and minuted:
"3.2
Arising from the incident: (
note
:
this is the unrest at the university)
3.2.1
a number of students were arrested by the plaintiffs who were
rendering services as referred to above, were taken to the police
station, charges were laid against the students who were arrested and
detained;
3.2.3
a number of students laid criminal charges against the personnel who
were on duty on the day in question ranging from assault
GBH, theft,
inter
alia
of
cell phones, calculators, CD's, wallets containing money and various
cards etc.
3.3
On the 24
th
September 2008, eight cell phones were found in the bus that was
transporting the plaintiffs, a calculator and CD's were found
in the
luggage of one of the plaintiffs. The articles referred to above were
positively identified by the complainants as referred
to in 1.3 as
their belongings which were stolen the previous night in the various
rooms of the students at the university. Based
on the fact that the
plaintiffs were on duty at the university where the identified
articles were stolen, members of the South
African Police Services
had reasonable grounds to arrest, detain and charge the plaintiffs
for allegedly being in possession of
stolen goods."
[16]
With reference to the relevant authorities, the learned author,
Harms, in
Amler's
Precedents of Pleadings
7
th
edition p46 and 47 says the following:
"An
arrest or detention is
prima
facie
wrongful.
It is not necessary, therefore, to allege or prove wrongfulness. It
is for the defendant to allege and prove the lawfulness
of the arrest
or detention."
And:
"Thus,
when police have arrested and detained a person, once the arrest and
detention are admitted the
onus
of
proving lawfulness rests on the State."
[17]
In cases like the present, where the plaintiff was arrested without a
warrant, the provisions of section 40 of the Criminal
Procedure Act,
51 of 1977, ("section 40") come into play. For present
purposes, it is only necessary to quote the provisions
of section
40(1) and the relevant subsections:
"40(1)
A peace-officer may without warrant arrest any person-
(b)
whom he reasonably suspects of having committed an offence referred
to in schedule 1, other than the offence ofescaping from
lawful
custody;
(e)
who is found in possession of anything which the peace-officer
reasonably suspects to be stolen property or property dishonestly
obtained, and whom the peace-officer reasonably suspects of having
committed an offence with respect to such thing."
[18]
Section 36 of the General Law Amendment Act, 62 of 1955, provides as
follows: "Failure to give a satisfactory account
of possession
of goods - Any person who is found in possession of any goods, other
than stock or produce as defined in section
13 of the Stock Theft
Act, 1923 (Act no 26 of 1923), in regard to which there is reasonable
suspicion that they have been stolen
and is unable to give a
satisfactory account of such possession, shall be guilty of an
offence and liable on conviction to the
penalties which may be
imposed on a conviction of theft."
The
evidence
[19]
A number of witnesses testified on behalf of both parties. The trial,
without closing argument, lasted for approximately five
days. Closing
argument was presented in the form of written heads of argument. I
intend limiting the summary of the evidence to
those aspects which
appear to me to be relevant for purposes of adjudication of this
case.
[20]
George Setlhadi is a bus driver in the employ of Atamilang Transport.
On 24 September 2008 he was instructed to transport officers
of the
Hlanganani security services. He left the depot and went to the
lodge. There the police said that he must take the officers
to the
police station. At the depot he also checked if the bus was clean and
the security department also checked the bus before
he left. There
was nothing inside.
[21]
The police escorted them to the police station. On arrival the police
ordered the security officers to get out, each with his
luggage.
After they got out the police got into the bus and found cell phones
in the bus and brought them out. There were two police
officers doing
the searching. He was instructed by his employers at the depot to go
back to work with the bus.
[22]
In cross-examination he said he did not see the police finding the
cell phones. They told him that they had found the phones
between the
seats. He did see the phones. He does not know how many phones there
were neither did the police tell him. There were
no police in the bus
when he was escorting the officers to the police station. He does not
know how many passengers he carried
on that occasion but the bus
takes about sixty five and the bus was
full.
It
may have been sixty passengers but he is not sure.
[23]
The officers had bags and blankets with them as their luggage. He did
not see them carrying anything else apart from bags and
blankets.
[24]
He was not in the bus when the police did the searching. He was
standing outside.
[25]
Katlego Thomas Maleho was a final year law student at the university
in September 2008. On 23 September 2008 at about midnight
he was in
his room in the James Moroka Mixed Residence with his girl friend
Rejoice Molema.
There
was banging and kicking against the door. He opened and about five
security officers entered. He identified them as security
officers
and they were dressed in black trousers with maroon tops carrying
shields and batons. They started assaulting him with
open hands. He
was dragged out of his room. Later he was taken into custody by the
police. He stayed there until Friday the 25
th
when
he was taken to court. He was released on warning and went back to
his room to find that it was damaged. His cell phone was
missing. On
the night when the security officers came his cell phone was lying on
the window-sill. It was later recovered from
the police. He felt that
the security officers had taken his cell phone. Exhibit "A"
is a bundle of documents. "A54"
to "A56" are
photos of cell phones and the calculator lying on a grass lawn next
to and inside three disposable holders
which could be food
containers. His cell phone was identified as one to be seen on "A55".
He did not lay any charges.
In cross-examination he said that he
could not identify the security officers who allegedly assaulted him.
He did not lay any assault
charges either. He was not injured. When
he got back from detention the door of his room was not locked
neither was it guarded.
His girl friend was not there either. It was
put to him that the security officers would deny assaulting any of
the students or
taking their property. It was put to him that at the
time there were sixty security officers assisting the police to
arrest the
students. It was put to him that according to the
plaintiffs, it was the police who effected the arrests of the
students.
[26]
Ipeleng Rejoice Molema was also a student at the university at the
time and the girl friend of the previous witness.
[27]
She, broadly, corroborated the evidence of her boy friend about the
security officers coming in and assaulting him and searching
the
room. At one stage they took her out of the room but later allowed
her to return to the room. At that stage the cell phones
were
missing. She then went to sleep with one of her girl friends. Nothing
apart from their cell phones was missing. She got her
cell phone back
as well. It can be seen on "A56". She first said that she
only saw the phones at the police on Monday
29 September. Later she
said it may have been earlier.
[28]
Siyabulela Ricardo Thembani was also a student at the university. His
door was also banged open and he saw officers in uniforms
consisting
of dark trousers and maroon tops. He was grabbed and pepper-sprayed.
He managed to escape and later went back to his
room to find it in
disarray. Some of his property was missing, including his cell phone.
His Casio calculator with a white sticker
at the back was also
missing. He recovered only the calculator from the police. It can be
seen on "A55". He cannot identify
the people who allegedly
assaulted him. He does not know who stole his goods. It was put to
him that the plaintiffs would deny
assaulting the students or taking
their goods. It was put to him that other local security officers
were also on the scene. This
he could not deny.
[29]
Like the two student witnesses before him, he did not offer any
evidence about the riotous conduct of the students, including
stone
throwing and burning down of parts of the university. When he was
asked whether there was a fire in the library that night,
he said he
was not sure. It was put to him that the plaintiffs would deny having
assaulted anybody or stolen their articles.
[30]
Pheko Jacob Lekena works at the Criminal Record Centre of the
Mmabatho police. "A53" is an affidavit by Inspector
Selefo
stating that the latter had taken the photos to be seen on "A54"
to "A56" and that the "points"
had been indicated
to him by Captain Lcshoe. This witness, Lekena, was only the
Commissioner of Oaths. He did not take the photos
neither did he know
where they were taken.
[31]
Thapelo Ronald Leshoe is a captain in the police. He is
stationed at the Mmabatho Management Information Centre.
He
was not at the university on the night of 23 September. On 24
September he was requested by Colonel Dince to accompany him to
the
lodge. There they found the security officers. Some had eaten and
others were busy eating. The driver of the bus took them
to the
police station and the witness followed in a motor car behind the
bus. He does not remember how many policemen there were.
He was with
Colonel Dince. At the police station Colonel Dince asked him to
search the bus. He would do so with Warrant Officer
Oliphant
("Oliphant"). Oliphant did not testify. He asked the bus
driver to vacate all the passengers from the bus each
with his
luggage. The passengers left the bus and went into a shelter in the
police station. He and Oliphant went into the bus
to do a search. The
bus driver was watching what they were doing. They found some food
parcels. In some food parcels they found
cell phones. Some cell
phones were on top of food parcels and others were underneath the
seats. The food parcels were mainly used
for porridge. They were
disposable containers. Afterwards they searched each bag of each
security officer which had been in the
bus. Nothing was found except
in one bag a calculator and CD's were found. In the bus eight cell
phones were found.
[32]
"A106" is a "drop sheet" given to the police by
Mr Ndou who was in charge of the security officers at the
university.
"A106", the drop sheet, contains the names of twenty two
members of Hlanganani who were allegedly on duty
at the university on
the night of 23 September. He testified about the photos "A54"
to "A56". Oliphant was
the person responsible for pointing
out the articles to the photographer.
[33]
In cross-examination it was pointed out to him that in "A53",
supra,
Selefo
says that he, Leshoe, pointed out the articles and not Oliphant. The
witness said that Selefo may have thought that because
the witness
was present he did the pointing out. Later he said he may also have
done the pointing out. His evidence in this regard
was unconvincing.
His involvement was limited to the search and the pointing out. He
does not know if all the security guards in
the bus were from the
same firm. At the lodge some of the security officers were inside the
bus and others were eating inside the
lodge. He does not know how
many securities there were. He said there may have been less than
sixty. When it was put to him that
there were sixty, he could not
dispute it. Colonel Dince decided that the security officers must be
taken to the police. He did
not receive any complaints from students
about alleged theft. He did not take statements. He saw some of the
officers getting into
the bus carrying food containers. It was put to
him that the driver said he only saw bags and blankets. It was put to
him that
the plaintiffs would say that they were not in possession of
food containers. This he disputed. It was put to him that the bus
driver said that they showed him the cell phones allegedly found in
the bus but he said nothing about food containers. He does not
know
whether the driver saw the food containers. It was put to him that if
they showed the driver the cell phones he must have
seen the food
containers.
[34]
Significantly, the witness was confronted with an affidavit he
made on 24 September. The last two paragraphs read as follows:
"We
escorted the bus to Mmabatho police station. Upon arrival at the
station we decided to search all security members as there
was an
allegation that the students' properties were missing. We requested
all members in the bus to take their luggage on their
way out and
searched them individually.
I
was with Inspector Oliphant when he searched one of the security
members and he found a calculator in his bag. We asked him where
he
got the calculator and he said that he got it during patrol around
the campus lying on the ground."
No
mention whatsoever is made about the cell phones allegedly found in
the bus, let alone the food containers.
When
he was cross-examined as to why he did not say anything about the
cell phones allegedly found in the bus he said "I omitted
to
mention it in the first statement therefore I made it clear in the
second statement." He conceded that it was a very important
issue. When asked why it was necessary to make two statements about
the same incident he said "because I realised after the
first
statement that I had omitted important issues then I made the second
statement".
The
"second statement" is "A412" and "A414".
This is a much more elaborate affair mentioning the eight
cell phones
allegedly found underneath the seats and inside "their food
parcels". There is also mention of the individual
search and the
calculator that was found but here it is added that apart from the
calculator certain CD's were also found on this
particular person.
When this person testified later, he admitted that the calculator was
found on him but denied the CD's.
Another
astonishing feature of this evidence is that the "second
statement" which the witness said he made when he realised
the
omission in the "first statement" has the time 15:00 on 24
September endorsed on it whilst the "first statement"
has a
much later time, 18:55, endorsed on it.
I
consider this evidence to be questionable and unsatisfactory.
[35]
The witness was also asked whether the bus driver was in the bus when
he and Oliphant searched the bus. He said the bus driver
was in the
bus and had specifically been requested by them to be present when
they conducted the search. It was put to him that
the bus driver said
he was outside the bus when they conducted the search, and that he
did not see them actually finding the cell
phones.
[36]
He was asked whether they showed the security officers the cell
phones and the food containers after the search. He said yes
and
their answer was that they had no knowledge about those articles.
This is at odds with the evidence of Dince who said that
they were
not prepared to give any explanation whatsoever. In any event, the
version of the plaintiffs is that the alleged phones
and food
containers allegedly found in the search were not shown to them at
any stage.
[37]
He also confirmed that the security officer in whose possession the
calculator was found, one Difference Mogorosi, who testified
later,
explained that he found the calculator lying on the premises of the
university.
[38]
It was put to him that about sixty security officers were inside the
bus at the relevant time and he conceded that this could
be correct.
[39]
He was also confronted with the fact that on the photos, "A56"
for example, three articles are photographed in one
food parcel. It
appears to be two cell phones and a calculator. He was asked whether
it was his evidence that more than one article
was found in one food
container. He said that he could not remember.
[40]
The following cross-examination then took place (I paraphrase from
my notes):
"So
you say if I am one of sixty passengers in the bus where food
containers were found and three phones that could have been
sneaked
on the bus by any of the passengers then I must give an explanation?
— I did not say it is so and so who took them.
They were asked
if they had any knowledge of the cell phones and they could not
answer. They could not answer? — They said
they did not know
anything about the cell phones.
They
were then arrested? — Yes, it appears so.
Were
you involved in the arrest of the plaintiffs? — Not so.
You
were not involved in the arrest? — That is so.
Who
arrested them? — All this operation was under the control of
Colonel Dince and his members.
Not
all the security officers that were on the bus were arrested? —
I have said I don't know about the arrest."
[41]
It was put to the witness that all the security officers who were on
the bus (some sixty odd) had been involved in the operation
at the
university the previous night when the police were assisted also in
the arrest of the students with the exception of two
female security
officers and not only the twenty two (including the two females)
listed on the "drop sheet" whilst only
twenty of the twenty
two on the drop sheet (barring the females) were arrested. The
witness could not give any satisfactory answer
to this statement. He
said "it could be so I was not involved in the arrest".
[42]
It was put to him that according to the pre-trial minute, and in
answer to a question by the plaintiffs, the defendant stated
that
this witness was also involved in the arrest. He emphatically denied
it.
[43]
It was put to him that it would have been prudent to test the alleged
stolen cell phones for finger-prints. He said he could
not remember
whether that had been done.
[44]
I was not impressed with this witness.
[45]
Baleseng Thapelo is a constable employed by the SAPS at Mafikeng.
This witness gave evidence of a formal nature. He allegedly
witnessed
one of the found cell phones being handed over to one of the
complainants, Rejoice Molema.
[46]
Modisaotsile Simon Dince is a colonel in the police and attached to
the Mafikeng Organised Crime unit. He was on duty on 24
September
2008.
[47]
At about 10:00 he went to the university. There were areas which had
been set alight and doors were damaged and windows were
shattered. He
summoned the local Criminal Record Centre to take photos of the
damaged property. It had been reported to him that
forty nine
students were being detained at the police station. He understood
that the security officers had effected the arrests
and felt that he
needed arresting statements from these arresting officers. He
summoned Captain Leshoe and Oliphant to accompany him to the lodge.
On arrival he found the bus with occupants and others outside eating.
The food was in white food containers as depicted on the
photographs.
They also had bags and blankets. He explained to the security
officers that they had to come to the police station
to make
arresting statements. They agreed. He also got the drop sheet from Mr
Ndou, as described. He spotted some security officers
entering the
bus with food containers. Remarkably, he said that no food containers
were left outside the bus. It is difficult to
understand why he
would, at that stage, have made such a careful observation.
[48]
When they got to the police station he saw some students entering the
area of the Community Service Centre and asked them what
they wanted
and they said they were students at the university and some of them
wanted to open cases for "stolen property,
damaged property, and
assault". He asked them against whom did they want to open the
cases and they said they did not know
against whom but against those
on duty the previous night. He then testified "because I was
concentrating on the issue of
getting statements I asked the students
to get into the CSC to be assisted by the police". Immediately
after giving this evidence,
he said that he asked Leshoe and Oliphant
to tell the security officers to leave the bus and to search the bus
because the students
had alleged that their properties had been lost.
At this stage Dince would not have seen any documentation, complaints
or statements.
According to him, he ordered the search immediately
upon hearing vague allegations about stolen property and at a time
when he
was disinterested in that side of things and more interested
in obtaining the arresting statements.
When
the bus was searched the security officers were outside the bus.
According to Dince, the bus was searched before the security
officers
were individually searched. All the witnesses on behalf of the
plaintiff testified that the individual personal searches
took place
before the bus was searched.
[49]
Dince said that Leshoe and Oliphant came out of the bus carrying
"food parcels". They are the containers which the
officers
had taken into the bus. Some of the food containers had cell phones
inside. He does not remember how many.
[50]
He asked the security officers where the cell phones came from and
what do they know about them and "no one gave me an
answer".
Of course, this is directly at odds with the evidence of Leshoe who
said that the security officers said they knew
nothing about the cell
phones.
[51]
Dince said when there was no response he instructed Leshoe and
Oliphant to search the bags of the security officers and a calculator
was found on one of them. CD's were also found on the same person. It
was a man called Difference.
[52]
When Dince was asked if anything else was found in the search on the
security officers at the shelter he said he thinks cell
phones but he
cannot remember how many. Thereafter he rectified this evidence by
saying that no cell phones were found on them
during the search in
the shelter. This is in line with all the other evidence.
[53]
The following evidence was then led in chief (paraphrasing from my
notes):
"What
happened then? — I talked to the security officers and said
since I originally wanted arrest statements and now
found cell phones
without an explanation, I said they were now under arrest."
In
response to the following leading question: "In terms of the
Constitution the security officers had a right, what was the
situation?" he said that he then warned them of their rights and
explained same to them in terms of section 35 of the Constitution.
This is also denied by the witnesses who testified on behalf of the
plaintiff.
[54]
He was asked in chief
"Who
was responsible for the arrest and detention of the security
officers? — Leshoe and Oliphant whom I had instructed
to arrest
and detain them though I was also involved to explain the rights."
Of course Leshoe denied any involvement and Oliphant
did not give
evidence.
[55]
In chief, Dince was asked whether he made any statement about the
incident. He says he thinks he made a first statement
and then a
further statement. In chief he was asked only to identify a statement
to be found at "A411" and "A413".
It purports to
be an affidavit, although I do not see a signature by the
Commissioner of Oaths. The relevant portion reads as follows:
"At
Lerona Lodge we requested them to come to police station to obtain
their
arrest statements of their students.
Upon
arrival on the station Captain Leshoe and Inspector Oliphant came
with cell phones from the bus of Atamilang company. They
alleges that
they recovered it from the bus where the security officers alighten?
the bus.
According
to Captain Leshoe and Inspector Oliphant those cell phones are
belongs to the securities who are from the bus.
That
is all I can say."
[56]
When asked whether any of the security officers were set free without
being charged, Dince said no. Of course, this is not
correct. Of the
sixty odd security officers, only twenty were arrested and charged.
[57]
Dince confirmed that when he got to the police station with the
security officers ("securities" from now on) he heard
for
the first time, when speaking to the students, about allegations of
theft and assault on the part of the securities.
[58]
Dince insisted that the bus driver remained in his seat behind the
wheel while Leshoe and Oliphant were searching the bus.
Of course,
the driver denied this and said he was outside.
[59]
Dince insisted that the securities remained silent when he asked them
about the cell phones found in the bus. Of course, Leshoe
said that
they denied any knowledge of the cell phones.
[60]
He does not remember whether the man Difference gave an explanation
when the calculator was found in his luggage.
[61]
He confirmed that after the search he decided that the securities
must be arrested and that there was no warrant for the arrest.
When
he was asked why he decided to arrest the securities he said it was
because of the items found in the bus and in the bag of
one of the
securities, Difference. It was put to him that according to the
docket further investigation was done after the arrest.
He said at
that time he was not the investigating officer.
[62]
The reason for his decision to have the securities arrested was
restated as follows in cross-examination: (paraphrasing from
my
notes)
"You
did not go to the charge-office or the CSC to establish if formal
complaints had been laid? — I did not want to
be involved
because they failed to give an explanation of the items found in
their possession. Then you decided to arrest, you
told Leshoe and
Oliphant and they were arrested? — Yes because I could not get
a clear explanation from them they were quiet."
[63]
He was asked on what charge he caused the arrest and detention to be
effected and said that it was section 36 of the General
Law Amendment
Act 62 of 1955. He was also asked about the provisions of section
40(1) of the Criminal Procedure Act,
supra.
He
was asked whether he was aware of the fact that section 40 provides
the arresting officer with a discretion to decide whether
or not to
arrest and said that he was aware of the discretion. He then added
that because the securities were on their way to Johannesburg
and he
first had to get their addresses confirmed he thought it would be
wise and expedient to detain them. The fact that they
were all
employed by Hlanganani was not good enough. It was still for the
police to get the residential addresses of the people
arrested. It
was put to him that he could have asked for the residential addresses
and he replied that in his experience he could
not necessarily rely
on information so obtained. He was asked whether, in exercising his
discretion to arrest, it was of the utmost
importance to know the
residential addresses and he answered in the affirmative. He insisted
that the police had to conduct their
own investigation first into the
residential addresses. It was put to him that he could have called
Difference and asked for his
address. He said it was not important at
that time to ask because when he asked them for an explanation he got
nothing.
[64]
The following was then said in cross-examination (paraphrasing from
my notes): "So you decided that is enough, lock them
up without
asking where they live or without phoning the human resources
department of the company to see if the address corresponds
with that
which they gave to you? — I deemed it not necessary to contact
the company regarding the address. I deemed it fit
to detain them and
then give addresses to the officers and then to confirm the
addresses."
He
carried on to say that in his experience difficulties are encountered
when false addresses are furnished.
[65]
It was put to him that he had to exercise his discretion on the facts
and not on his experience for example in this case they
were all
employed by a registered company and security provider. He answered
that he had no difficulty with the company.
It
was put to him that according to Leshoe, Difference gave an
explanation namely that he had picked up the calculator on campus.
The answer was that he could not remember that.
[66]
The following cross-examination then ensued (paraphrasing from my
notes):
"I
then assume you do not know if that explanation was investigated? —
My only last thing to do was to give instructions
that they be
detained. There is a duty on you as police officer in the exercise of
your discretion to first investigate the explanation
before the
arrest therefore you should first have investigated before arresting?
— There was no one who gave me an explanation.
Can't
you remember if Difference gave an explanation? — I said I do
not remember.
Do
you say that all the securities on that bus were arrested? —
Yes I had a duty list."
[67]
He confirmed that he did not conduct a roll-call with reference to
the drop sheet to single out those whose names appeared
thereon. It
was put to him that the names of two females appeared on the drop
sheet but they were not arrested. He said he did
not go through the
list. "That is why I explain I focused more on the recovered
items and not worry much about the list."
It was put to him that
of the sixty on the bus only twenty were arrested. His answer was
"That is what you say, what I know
is that all who came from the
bus were arrested and detained." It was put to him that the
twenty arrested were all males and
he answered "That is what you
say. I do not remember male or female. All I know they were
securities." He insisted that
those who emerged from the bus are
the ones who were arrested.
It
was put to him that the rest of the sixty (at least thirty eight)
were also on duty at the university on the night of 23 September.
He
answered "That is what you say. I only know of securities who
came from the bus and from whom stolen property was recovered
and
they were detained." It was put to him that all the securities
who were on the campus on 23 September were assisting the
police in
the arrest of the students. He answered that he was concentrating on
the securities whom they had gone to get arrest
statements from and
he did not know anything about who assisted the police. It was put to
him that the total of the securities
in the bus, namely those whom he
went to get arrest statements from were at least sixty. He answered
"You give me the figures,
I was not concentrating on that. I
only concentrated on recovery of suspected stolen property." He
agreed that he was the
one who gave the instruction to arrest and not
Leshoe.
[68]
It was put to him that at least ten policemen were in the bus on the
way from the lodge to the police station. This he denied.
[69]
The version of the plaintiffs was put to him namely that they ate
lunch at the lodge by using proper crockery and porcelain
plates and
cutlery and not disposable food containers. He insisted that they had
food containers. It was put to him that the driver
only saw bags and
bedding and said nothing about food containers.
[70]
He did not know why there was no decision to test the alleged
stolen cell phones for finger-prints.
[71]
Some facts relating to the period of detention after the arrest were
put to Dince towards the end of his cross-examination.
He said he
could not comment because his involvement had ceased by then. I
realise that these facts are probably irrelevant with
regard to the
arrest, but they may have some relevance with regard to the alleged
unlawful detention: at the first appearance after
the arrest, on 25
September, the investigating officer (female officer Leselo) wanted a
postponement for further verification of
addresses and for an
identification parade to be held. It was put to her on behalf of the
plaintiffs that the employer was, if
bail were to be granted,
prepared to monitor them and to take the responsibility for their
duty to report to the police. It was
put to the investigating officer
that the employer would give the police a bus to visit the addresses
for verification. This offer
was made because the investigating
officer claimed that she could not verify the addresses because of a
lack of transport. There
was another offer by the employer to convey
the plaintiffs to Mmabatho for the identification parade and to
secure their attendance
at court. The investigating officer declined
all these offers and said that the police would conduct their own
investigation. The
addresses of all the plaintiffs as appearing on
the docket and as furnished to the police were correct with the
exception of two
where the securities had recently moved. The matter
was then remanded to 3 October. By 3 October no ID parade had been
held and
no verification had been done. By 7 April 2009 when the
charges were
withdrawn no ID parade had been held and no verification of addresses
had been done.
[72]
I was not impressed with this witness. He came across as arrogant and
as someone who thought that he could very much do as
he pleases. He
was also evasive at times. His conduct was akin to that of the
proverbial bull in a China store.
[73]
This concludes the summary of the evidence presented on behalf of the
defendant. [74] I turn to the evidence presented on
behalf of the
plaintiff.
[75]
Paul Mbatha is the area manager for the Vaal region of Hlanganani. He
has been employed there since September 2004. He testified
about the
deployment of the securities at the university. He confirmed that
they were accommodated at the lodge. He testified about
the riots and
the fact that two classes were set alight. Stones and bottles were
thrown at them by the students. The police entered
the residences and
took out the students. Securities assisted them.
[76]
During the morning of 24 September he was also at the university from
about 06:00 to 10:00. Students and community members
were aggressive
towards them. He tried to talk to their leaders. One Khumalo who was
a community leader, insisted they must go
because they take their
children's jobs and were not welcome in the area. When they started
moving out bricks and stones were again
thrown at them. He was hit on
the jaw with a stone. His jaw-bone was broken. He went to the
hospital where they only stopped the
bleeding. He was not admitted.
The police would not accept a charge which he wanted to lay. While he
was at the police station
the securities arrived in a bus as
described earlier. It was the full contingent of the guards from
"both groups". He
was aware that they were taken off the
bus and searched, although he did not witness the search himself
[77]
Tshilidzi Chrisent Luvha has been working for Hlanganani as a guard
since 2007. He was also deployed with his colleagues at
the
university on 23 September 2008. They already arrived on 21
September. They were told that they would be working with the police
and a local security company. On the 23
rd
,
there was a fire started on the campus. When the firemen wanted to
extinguish the fire the students attacked their vehicle.
[78]
As to the operation to clean up the residences, the police started
knocking on doors and some opened. The students were handed
to the
securities who took them outside to the police. Those who refused to
open were pepper-sprayed and pulled out by force.
[79]
When they were transported by bus from the lodge to the police
station the next day there were about ten policemen on board.
At the
police station they were instructed to get off. The driver also got
off. They went to a shelter in the station and there
they were
standing in a queue and searched. His person was also searched. Only
his own cell phone was found on him. All the guards
were searched.
There were about sixty. After the search the police went to search
the bus. Only the police went and they did not
take the securities
with. When they came back from the bus they accused the securities of
being thieves and said they had found
cell phones in the bus. The
witness asked them to produce the cell phones. This did not happen.
The witness asked them why they
did not take finger-prints. They said
they had already touched the cell phones and that he, as a mere
security officer cannot tell
them what to do. He did not see the cell
phones allegedly stolen. Photographs "A54" to "A56"
meant nothing
to him.
[80]
They did not have lunch in food containers such as those appearing on
the photographs. They ate from porcelain plates at the
lodge. He did
not see any food containers being taken on the bus.
[81]
When they were accused of the alleged theft he asked the police to
treat them professionally and take them each for interrogation.
The
guards whose names appeared on the drop sheet were separated from the
others. Before they were arrested they were also accused
of raping
school children and of taking the work of the local children because
they come from Gauteng. He did not rape anybody
neither did he steal
anything. The address he gave was still valid at the time when he
testified. He confirmed that he was then
arrested.
[82]
Humbhlani Robert Sadiki is a security officer working for Hlanganani.
He was also on duty on night-shift on 23 September 2008.
He was not
involved in the arrest of students and did not enter the rooms in the
residence. He did not steal anything.
[83]
Before the arrest on 24 September allegations were made that they
stole cell phones. The cell phones were never shown to them.
[84]
In the bus on the way to the police station from the lodge there were
about sixty of the guards and about ten policemen. They
were searched
after they got off the bus. They were body searched and their bags
were also searched. Nothing was found on him.
[85]
After this search the police went to the bus. They came back accusing
them of the cell phone theft but he never saw the cell
phones. He
confirms that the guards requested them to take finger-prints and
that the reaction was that they were only securities
and could not
tell the police how to do their work.
[86]
He confirmed that not all the securities who were on the bus were
arrested.
[87]
In cross-examination he confirmed that they were accused of being
thieves and rapists and also that they were taking work away
from the
local children.
[88]
Lufuno Justice Swalivha is the plaintiff in this case. He works for
Hlanganani and was also deployed at the university on 23
September
2008. He was on night-shift. He started working at 18:00.
[89]
He testified about the fire that had been started and about the
students throwing bottles and stones at them. He confirmed
the attack
by the students with stones on the fire-brigade.
[90]
At the lodge the next day they had lunch on porcelain plates. They
sat at the table. They were told that they had to go to
the police
station to make statements. In the bus were about ten policemen. The
bus was full of securities. At the police station
they were told to
get off the bus with their own luggage and they were body-searched.
The luggage was also searched. Nothing was
found on him. After the
search they went to search the bus. They did not show them what they
had allegedly found in the bus. He
did not see the objects depicted
on the photos "A54" to "A56". He gave the police
his address when he was arrested.
They never came to verify the
address. No identification parade was held.
[91]
Kabelo Difference Mogorosi also works for Hlanganani. He was also
deployed in September 2008. Before he testified, two certificates
were handed in by agreement between the parties and became "A438"
and "A439". "A438" is the certificate
of
incorporation of Hlanganani and "A439" is a certificate to
the effect that Hlanganani is a duly registered security
service
provider as contemplated in terms of section 21 of the Private
Security Industry Regulation Act 56 of 2001. It was issued
on 20
March 2002.
[92]
Difference testified about what happened at the university. He
confirmed the fire and the fact that the fire-brigade was stoned.
He
never entered the building. The students were taken away by the
police. He did not steal anything on the campus. He worked until
06:00 and then went to sleep at the lodge. On the bus from the lodge
to the police station there were fifty to sixty securities.
There
were also police inside the bus. At the police station they were told
to vacate the bus with their luggage. They were searched.
A
calculator was found in his bag. He said he found it on the second
day when they got to Mafikeng. They arrived on the night of
21
September. While he was on patrol he found the calculator lying in
the grass and kept it for himself. When the calculator was
found
during the search he explained that he had picked it up in the yard.
The police took his name and the calculator. The object
on "A55"
looks like the calculator that he had picked up.
[93]
The police searched the bus after the securities had been searched.
He was arrested and detained until 3 October when he was
released on
bail.
[94]
In cross-examination he denied that the calculator could have been
with the witness Tembani on 23 September because he had
picked it up
the previous day. He also denies that CD's were found on him in
addition to the calculator.
[95]
He confirmed that ultimately all the charges were withdrawn against
him and his colleagues.
[96]
Reverting to the calculator, it is noteworthy that his evidence that
he explained during the search that he had picked up the
calculator
is corroborated by Leshoe in his affidavit "A22" where he
says "we asked him where he got the calculator
and he said that
he got it during patrol around the campus lying on the ground".
[97]
This concluded the evidence presented on behalf of the plaintiff.
Generally, I was impressed with all the witnesses who testified
on
behalf of the plaintiff. Their testimonies struck me as being
straight-forward and honest. They were not discredited in
cross-examination.
Brief
remarks about the legal position
[98]
It is incumbent upon me to pay careful attention to the very recent
decision (not yet reported) of the Supreme Court of Appeal
in
Minister
of Safety & Security v Sekhoto and Another
(131/10)
[2010] ZASCA 141
(19 November 2010).
[99]
In this judgment the law was comprehensively restated in as far as it
concerns claims for damages flowing from alleged unlawful
arrest
without a warrant. The learned Deputy President, HARMS DP,
meticulously revisited the provisions of
section 40(1)
of the
Criminal Procedure Act 51 of 1977
, the jurisdictional requirements
for valid arrest, the discretion vested in the arresting officer and
the question
of
onus.
I
will attempt to identify the crucial aspects which must be considered
for purposes of the present case. I will do so by simply
referring to
the numbered paragraphs in the typed judgment, which I will refer to
as
"Sekhoto".
I
will avoid, as far as possible, repetitive references to all the
authorities considered by the learned Deputy President.
[100]
The jurisdictional facts for a
section 40(1
)(b) defence are that-
(i) the
arrestor must be a peace-officer;
(ii) the
arrestor must entertain a suspicion;
(iii) the
suspicion must be that the suspect (the arrestee) committed an
offence
referred to in schedule 1 (in this case, the provisions of
section 40(1
)(e),
supra,
namely
where the arrestee is found in possession of anything which
the
peace-officer reasonably suspects to be stolen property or
property
dishonestly obtained and whom the peace-officer
reasonably suspects of
having committed an offence with respect to
such thing, will also come
into play); and
(iv)
the suspicion must rest on reasonable grounds -
Sekhoto
paragraph
[6].
[101]
It is trite that the
onus
rests
on a defendant to justify an arrest —
Sekhoto
paragraph
[7],
[102]
A defendant who wishes to rely on the
section 40(1
)(b) defence (or,
as in this case the
section 40(l)(e)
defence) traditionally had to
plead the four jurisdictional facts in order to present a plea that
is not excipiable -
Sekhoto
paragraph
[52], I already pointed out that in the present plea nothing but a
bare denial is to be found, except for what was stated
in the
pre-trial minute. In her heads of argument, counsel for the plaintiff
pointed out that no amended plea was delivered on
behalf of the
defendant. She submitted, correctly in my view, that the defendant's
defence has not been pleaded.
[103]
In a number of recent judgments the courts have sought to introduce
the further ("fifth") jurisdictional fact which
the
arrestor has to prove in order to successfully defend the action.
This amounts to a finding that even if the arrestor believed
on
reasonable grounds that the particular crime has indeed been
committed, the arrest must still be justifiable according to the
demands of the Bill of Rights. The police must consider, in each
case, whether there are no less invasive options to bring the
suspect
before the court than an immediate detention of the arrestee.
Explanations offered by the arrestee before the arrest must
also
first be investigated. See for example
Louw
v Minister of Safety and Security
2006(2)
SACR 178 (T) at 186a-187e and
Minister
of Safety and Security v Sekhoto
2010(1)
SACR 388 (FB), which is the full bench decision of the Free State
court from which the appeal originated which came before
the Supreme
Court of Appeal in
Sekhoto
-Sekhoto
paragraph
[10] to [12].
It
was held that the fifth jurisdictional fact is not part of
section
40(l)(b).
Absent a finding of unconstitutionality of this section,
the courts,
supra,
were
not entitled to read anything into a clear text -
Sekhoto
paragraphs
[23] and [24].
In
coming to this conclusion, the learned Deputy President also took
into account the provisions of
section 12(1
)(a) of the Constitution
in terms of which the Bill of Rights guarantees the right of security
and freedom of the person which
includes the right "not to be
deprived of freedom arbitrarily or without just cause" -
Sekhoto
paragraph
[60].
It
was held that it could hardly be suggested that an arrest under the
circumstances set out in section 40(1 )(b) could amount to
a
deprivation of freedom which is arbitrary or without just cause in
conflict with the Bill of Rights. A lawful arrest cannot be
arbitrary
-
Sekhoto
paragraph
[25].
[104]
Once the jurisdictional facts for an arrest, whether in terms of any
paragraph of section 40(1) or in terms of section 40(3)
(arrest with
a warrant) are present, a discretion arises. It is the discretion
whether or not to arrest. The officer is not obliged
to effect an
arrest. The discretion must be properly exercised. The decision to
arrest must be based on the intention to bring
the arrested person to
justice. It must not rest on some ulterior motive -
Sekhoto
paragraphs
[28] to [31].
[105]
If the discretion has been
bona
fide
exercised
a court will be slow to interfere with the result.
"There
are circumstances in which interference would be possible and right.
If for instance such an officer had acted
mala
fide
or
from ulterior and improper motives, if he had not applied his mind to
the matter or exercised his discretion at all. or if he
had
disregarded the express provisions of a statute - in such cases the
court might grant relief. But it would be unable to interfere
with a
due and honest exercise of discretion, even if it considered the
decision inequitable and wrong."
INNES
ACJ in
Shidiack
v Union Government
1912
AD 642
at 651-652.
Sekhoto
paragraph
[34].
[106]
Because the
dictum
of
INNES ACJ,
supra,
pre-dates
the Bill of Rights it required reconsideration and was qualified when
CHASKALSON P held that the Bill of Rights required
that the exercise
of discretion must also be objectively rational. He said the
following:
"It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not
be arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.
The
question whether a decision is rationally related to the purpose for
which the power was given calls for an objective enquiry.
Otherwise a
decision that, viewed objectively, is in fact irrational, might pass
muster simply because the person who took it mistakenly
and in good
faith believed it to be rational. Such a conclusion would place form
above substance, and undermine an important constitutional
principle."
Pharmaceutical
Manufacturers Association of South Africa: in re Ex parte Application
of President of the RSA
[2000] ZACC 1
;
2000
2 SA 674
, 2000(3) BCLR 241 (CC) paragraphs [85] to [86].
Sekhoto
paragraph
[36].
[107]
The learned Deputy President also, on the same subject, referred to
English authority where the following was stated:
"The
court may not interfere with the exercise of an administrative
discretion on substantive grounds save where the court
is satisfied
that the decision is unreasonable in the sense that it is beyond the
range of responses open to a reasonable decision-maker.
But
in judging whether the decision-maker has exceeded this margin of
appreciation the human rights context is important. The more
substantial the interference with human rights, the more the court
will require by way of justification before it is satisfied
that the
decision is reasonable in the sense outlined above.
"
(Emphasis added.)
Sekhoto
paragraph
[37].
[108]
It remains a general requirement that any discretion must be
exercised in good faith, rationally and not arbitrarily. This
would
mean that peace-officers are entitled to exercise their discretion as
they see fit, provided that they stay within the bounds
of
rationality. An official who has discretionary powers must naturally
exercise them within the limits of the authorising statute
read in
the light of the Bill of Rights -
Sekhoto
paragraphs
[38] to [40].
[109]
Once the jurisdictional facts have been established by the defendant,
it is for the plaintiff to prove that the discretion
was exercised in
an improper manner —
Sekhoto
paragraphs
[46] to [49].
Did
the defendant discharge the
onus
of
proving the jurisdictional facts for a section 40(1)0)) or (e)
defence
?
[110]
To start with, the defence was not pleaded, as it should have been.
[111]
The jurisdictional facts were listed with reference to
Sekhoto
paragraph
[6],
supra.
In
essence, the defendant had to prove that the arrestor entertained a
suspicion, the suspicion had to be that
the
suspect (the arrestee)
committed an offence referred to in schedule 1 or in section 40(1
)(e), in this case, and the suspicion had to rest on reasonable
grounds.
[112]
The opposing versions presented by the plaintiff and the defendant
respectively, were, in most respects, mutually destructive:
the
plaintiff (and his colleagues) denied having stolen anything or
having been in possession of stolen goods. Barring the calculator,
in
respect of which Difference offered an explanation, and it is common
cause that he did so, nothing was found on the plaintiff
or, for that
matter, on his colleagues. No complaints were laid by any of the
students directly implicating the plaintiff or his
colleagues in the
alleged theft. The defendant alleged that there were food containers
with the securities and on the bus and this
is denied by the
plaintiff and his colleagues. The bus driver said nothing about food
containers. He did not see the police finding
the cell phones in the
bus either. He did, however, say that they showed phones to him after
the search. The bus driver did not
see food containers. All he saw
was bags and blankets. The evidence on behalf of the plaintiff that
the securities ate at the table
using proper cutlery and crockery is
undisputed. In his "first statement" which turned out to be
his "second statement"
judging by the time endorsed
thereon, Leshoe said nothing about having found cell phones, let
alone food containers on the bus.
The photographer said that Leshoe
pointed out the purportedly stolen articles and the food containers
to him whereas Leshoe said
that Oliphant did the pointing out.
Oliphant did not testify.
Leshoe
said that Dince effected the arrest and Dince said that Oliphant and
Leshoe effected the arrest.
Dince
said that the securities offered no explanation whatsoever when they
were confronted with the allegation of cell phones having
been found
on the bus whereas Leshoe said that the securities indicated that
they had no knowledge of such cell phones. This evidence
is supported
by the witnesses on behalf of the plaintiff. Their evidence that they
insisted on finger-prints being taken is undisputed.
The
securities testified that there were policemen on the bus escorting
them to the police station. On behalf of the defendant this
was
denied.
[113]
The securities said that the alleged search of the bus took place
after they were personally and bodily searched. On behalf
of the
defendant it was testified that the bus was searched before the
securities were searched.
Dince
said that the securities were confronted with the cell phones that
had allegedly been found on the bus and the securities
said they were
never shown the cell phones.
[114]
As to the question of
onus,
counsel
for the defendant themselves referred me to the case of
National
Employers' General Insurance Co Ltd v Jagers
1984
4 SA 437
(ECD) where the following is said at 440D-G:
"It
seems to me, with respect, that in any civil case, as in any criminal
case, the
onus
can
ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the
onus
rests.
In a civil case the
onus
is
obviously not as heavy as it is in a criminal case, but nevertheless
where the
onus
rests
on the plaintiff as in the present case, and where there are two
mutually destructive stories, he can only succeed if he satisfies
the
court on a preponderance of probabilities that his version is true
and accurate and therefore acceptable, and that the other
version
advanced by the defendant is therefore false or mistaken and falls to
be rejected. In deciding whether that evidence is
true or not, the
court will weigh up and test the plaintiffs allegations against the
general probabilities. The estimate of the
credibility of a witness
will therefore be inextricably bound up with a consideration of the
probabilities of the case and, if
the balance of probabilities
favours the plaintiff, then the court will accept his version as
being probably true. If however the
probabilities are evenly balanced
in the sense that they do not favour the plaintiffs case anymore than
they do the defendant's,
the plaintiff can only succeed if the court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant's
version is false."
In
my view this correctly states the law on the issue. See also
Stellenbosch
Farmers Winery Group Ltd and Another
v
Martell
Et Cie & Others
2003
1 SA 11
(SCA)atl4H-15E.
[115]
As to the question of credibility, I have already expressed
reservations about the credibility and demeanour of the witnesses
Leshoe and Dince. I have also expressed satisfaction with the quality
of the evidence of the plaintiff and his witnesses.
[116]
As to the general probabilities which, according to
Jagers,
supra,
must
be taken into account in order to determine whether the
onus
has
been discharged, the picture appears to be equally bleak for the
defendant; there is no evidence to the effect that the securities
were told, when they were ordered to disembark with their luggage,
that they were going to be searched. On the assumption, therefore,
that they did not know that they would be searched (bearing in mind
that they were told that they were going to the police station
to
furnish arresting statements) the following unlikely occurrence must
have taken place when the order to disembark was given:
some eight
cell phone thieves amongst the sixty odd securities would have
franticly removed the stolen cell phones from their luggage
or their
clothing where it had been hidden and co-incidentally adopted the
same strategy to avoid detection by hiding the cell
phones in their
food containers and thereupon abandoning the food and the cell phones
in the bus. They would have adopted this
strange strategy
instinctively and without comparing notes with one another. Moreover,
on the overwhelming probabilities, they
would not at that stage even
have known that there were complaints about missing cell phones. I
consider this to be a strange and
improbable state of affairs. On the
other hand, there is the version of the plaintiff and his witnesses,
which is uncontested,
that they had lunch at the lodge in more
civilised surroundings sitting at the table using cutlery and
crockery. They testified
that there were no food containers. This
appears to be inherently probable in the circumstances. The bus
driver also did not see
food containers but only saw bags and
blankets. Added to this there is the somewhat unlikely situation of
three cell phones being
photographed in one container, the
photographer saying that Leshoe did the pointing out to him whereas
Leshoe said that it was
Oliphant but Oliphant did not testify. It is
common cause that the suspects were not present at the photograph
cession. The plaintiff
and his witnesses testified that the cell
phones allegedly found in the bus were not shown to them. I see no
reason why, on the
general probabilities, this version should be
rejected. Similarly, the plaintiff and his witnesses testified that
the bus was searched
(or purportedly searched) after the individual
search was conducted on all the securities. I see no reason why this
version should
be rejected on the general probabilities. Moreover,
there is the significant aspect of Leshoe having failed to mention
the discovery
of the cell phones, let alone the food containers in
his "first statement" as already described.
[117]
Absent a finding that the defendant's version is true and the
plaintiffs version is false as required in
Jagers
(which
finding I am not prepared to make, for the reasons mentioned) it
cannot be said that the defendant proved the jurisdictional
facts on
a balance of probabilities namely that the police had a suspicion
that the suspect (in this case the particular plaintiff)
had stolen a
cell phone or had possessed a stolen cell phone without being able to
adequately explain the possession thereof. In
particular, it cannot
be held that the defendant had proved that the suspicion, such as it
was, rested on reasonable grounds.
[118]
To this should be added the fact that section 40(l)(e) requires the
suspect to have been found in possession of the article
suspected to
have been stolen. The same applies to the provisions of section 36 of
Act 62 of 1955 on which Dince said that he relied.
For a conviction
for contravening the last-mentioned provision, the suspect must be
found in possession of the article. The provisions
of that section
must be interpreted restrictively. The suspect must have personal and
direct control over the goods. He must also
be in possession at the
moment that the goods are found by the police - see the discussion by
Snyman
Criminal
Law
fourth
edition on p514-515.
[119]
On the defendant's own version, this was not the case. This is
another reason why it cannot be said that the defendant discharged
the
onus
of
proving that the suspicion, if it ever existed, rested on reasonable
grounds.
[120]
In the light of this finding that the defendant failed to discharge
the
onus
of
proving the existence of the jurisdictional facts, it follows that
the defence cannot be upheld and that the plaintiff must succeed.
[121]
If I am wrong in this conclusion, and if it can be said that the
defendant managed to prove the existence of the jurisdictional
facts,
there must be an enquiry as to whether or not the exercise of the
discretion by Dince or Leshoe and Oliphant to arrest was
objectively
rational as described in
Pharmaceutical
supra,
and
in
Sekhoto,
paragraphs
[34] to [37],
supra.
[122]
I now turn to that enquiry.
Was
the exercise of the discretion to arrest objectively rational?
[123]
To start with, it is not clear whether such a discretion was
exercised at all, let alone rationally, because of the conflicting
evidence. Leshoe said it was Dince and Dince said it was Leshoe and
Oliphant who effected the arrest. I will accept, where Leshoe
said he
had nothing to do with it, that consideration must be given to the
evidence of Dince.
[124]
With regard to the discretion, it was only invited in
cross-examination and Dince was rather vague about it. He also said
that he was guided to a large extent by the fact that the securities
gave no explanation when confronted with the alleged discovery
of the
cell phones. This, of course, is at odds with the evidence of
Leshoe
who said that the securities explained that they had nothing to do
with the alleged discovery and the plaintiff and his witnesses
stating that they also denied any involvement and insisted on
individual interrogation and the taking of fingerprints.
[125]
Returning to the conduct of Dince, it can perhaps be summarised as
follows, on his own version: he arrived at the police station
and his
vehicle was parked some distance away from the bus. He was then met
by a number of students who made broad allegations
about the
securities having stolen their property, assaulted them and so on. At
that stage he was concentrating on having the arrest
statements taken
and he sent the students to the CSC for assistance. Nevertheless, he
ordered Leshoe and Oliphant to have the bus
vacated and searched.
When "food parcels" and cell phones were found, he
confronted the securities who gave no explanation.
The securities
were individually and bodily searched. Nothing was found except the
calculator on Difference. He cannot remember
whether Difference gave
an explanation. At that point he decided that they must all be
arrested (qualified by his evidence that
Leshoe and Oliphant also had
a hand in the decision). He relies on section 36, namely a case that
the plaintiff was in possession
of a stolen cell phone. Of course, on
his own version, this was not the case.
[126]
Against this background, and even on Dince's own version which, of
course, is seriously discredited by the other evidence,
I fail to see
how it can be said that his decision to arrest all the securities can
be said to be objectively rational. Nothing
was found on the
plaintiff or any of the other securities, barring the calculator.
There were only vague suggestions of theft which
he got verbally from
a number of students. He had no insight in any documentary evidence
such as statements or complaints. He did
not even know whether the
cell phones allegedly found were stolen and, if so, by whom and who
the phones belong to. There was no
evidence that all the securities
arrested acted with a common purpose to steal the cell phones. I fail
to see how Dince, in these
circumstances, could seriously have
contemplated that any of the multiple arrestees could successfully be
prosecuted, let alone
the plaintiff as an individual. I have serious
reservations about whether Dince had a
bona
fide
intention
to bring all the securities to justice. His conduct was
ill-considered and appears to have been a spur of the moment show
of
force rather than anything else.
[127]
In my view, the conduct of Dince, and the exercise of his discretion,
if it ever took place, to arrest, cannot be said to
have been
objectively rational as intended by the judgment in
Pharmaceutical.
In
so far as the plaintiff had the
onus
to
prove this, I find that he succeeded in doing so.
Conclusion
[128]
In all the circumstances, and for the reasons mentioned, I have come
to the conclusion that the section 40 defence has not
been proved and
cannot be upheld.
The
order
[129]
I make the following order:
1.
It is declared that the defendant is liable to compensate the
plaintiff for his proved or agreed damages flowing from having
been
unlawfully arrested and detained on 24 September 2008.
2.
The defendant is ordered to pay the costs.
WRC
PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
32477-2009
HEARD
ON: 17-23 SEPTEMBER 2010
FOR
THE PLAINTIFF: Ms SWIEGELAAR
INSTRUCTED
BY: VAN ZYL, LE ROUX & HURTER INC
FOR
THE DEFENDANT: MR MATHIBEDI ASSISTED BY MR MANYAGE
INSTRUCTED
BY: STATE ATTORNEY, PTA