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[2011] ZAECPEHC 34
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Hash and Others v Minister of Safety and Security (2499/2009, 2500/2009, 2501/2009) [2011] ZAECPEHC 34 (2 August 2011)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.: 2499/2009
2500/2009
2501/2009
Date Heard: 25 May 2011
Date Delivered: 2 August 2011
In
the matter between:
GARTH
HASH
…......................................................................................
First
Plaintiff
ALLAN
KETTELDAS
…......................................................................
Second
Plaintiff
JUNAINE
DU PREEZ
…..........................................................................
Third
Plaintiff
and
THE
HONOURABLE MINISTER OF
SAFETY AND SECURITY
….......................................................................
Defendant
JUDGMENT
EKSTEEN
J:
[1] The plaintiffs herein claim
damages from the defendant for their alleged wrongful and unlawful
arrest and detention and for
malicious prosecution. Initially the
plaintiffs each issued separate summonses in identical terms. The
actions have now been consolidated.
[2] The plaintiff’s were
arrested together on 1 July 2007 by Warrant Officer Els, a member of
the South African Police Services,
without a warrant, and detained on
a charge of robbery with aggravating circumstances. They appeared
before a magistrate in Uitenhage
on this charge on the 4
th
of July 2007 and the matter was remanded to 11 July 2007. The
magistrate ordered that the plaintiffs be held in custody. On 11
July
the plaintiffs were released on bail and the matter was further
remanded to 24 August 2007. On the latter date all charges
against
the plaintiffs were withdrawn the summonses referred to above
followed.
[3] The defendant admits the arrest
but pleads that the arrest and the ensuing detention was lawful in
terms of section 40 of the
Criminal Procedure Act, 51 of 1977 (the
Act).
[4]
The evidence
Warrant Officer Els testified that he
is a member of the South African Police Services and during 2007 he
was attached to the Special
Task Team at the Specialised Crime Unit
which had been set up specifically to address vehicle hijackings, and
especially the hijacking
of Volkswagen lease vehicles in Port
Elizabeth and Uitenhage. He was at home in Port Elizabeth on the
evening of 1 July 2007 when
he received a phone call from
Superintendent Fourie. Superintendent Fourie, who is now deceased,
was the officer commanding the
Special Task Team. Fourie advised that
an armed robbery had occurred at the Sports Complex of Volkswagen in
Uitenhage where new
motor vehicles are kept. Fourie requested Els to
proceed to the Sports Complex.
[5] Els says that he proceeded along
the N2 towards Uitenhage. As he was approaching the Stanford Road
turnoff, still in Port Elizabeth,
he received a further call from
Fourie whom he presumed was now at the scene of the alleged crime.
Fourie advised that he should
be on the look-out for a vehicle in
which the suspects were alleged to be travelling. He described the
vehicle, an old whitish
Mercedes-Benz with no number plates and
indicated that there could possibly be six brown male suspects in the
vehicle. As Fourie
gave the description of the vehicle Els noticed a
vehicle which matched the description approaching from the direction
of Uitenhage.
He turned around and followed this vehicle which turned
into Stanford Road and later into the direction of Durban Road.
[6] Els activated the siren of his
vehicle, a white Opel Astra, and put his blue light on. As the
Mercedes-Benz came to an intersection
the driver stalled the vehicle.
Els jumped from his vehicle with his firearm directed at the Mercedes
and instructed the driver
not to restart the vehicle and the
occupants to remain in the vehicle with their hands raised so that he
could see them. They obeyed
and Els waited for backup to arrive
whilst he continuously kept the vehicle under the cover of his
firearm. These events, Els says,
occurred at about 23h45.
[7] Once the backup arrived, in the
form of other members of the Task Team, they instructed the occupants
of the vehicle to alight
one by one and to lie down on the tar road.
There were five persons, all brown men, in the car and the plaintiffs
were the back
seat passengers of the vehicle. The driver of the
vehicle was one Byron Klink and the front seat passenger one Faruk
Cesar. When
the occupants were removed from the car the vehicle was
searched. In the vehicle a number of black heavy duty cable ties,
some
two-way tape and bolt cutters were found and approximately half
a dozen loose motor vehicle registration plates in the boot. Fourie
also arrived at the scene during these events. Fourie confirmed that
he was satisfied that the Mercedes-Benz was in fact that suspected
vehicle. Els then arrested the plaintiffs for the armed robbery of
which Fourie had advised him. Upon affecting the arrest the
plaintiffs were taken to the Uitenhage Police Station where they were
detained. None of the aforegoing evidence has been placed
in dispute.
[8] Els states that in his experience
as an armed robbery detective cable ties such as those found in the
vehicle are frequently
used to constrict a person’s movements
at a crime scene by tying a person’s hands behind his back. He
acknowledged
that cable ties could be used for other purposes, such
as a temporary measure to fix parts of motor vehicles, but says that
he
saw no sign of such repairs on the Mercedes-Benz vehicle.
[9] Two-way tape, he says, is often
used as an easy manner to effect the quick change of registration
plates on vehicles. He testified
further that the vehicles parked at
the Sports Complex are new vehicles which are not registered. Where
such a vehicle is removed
it is likely to attract the immediate
attention of the authorities. By the application of registration
plates vehicles are not
as readily detected as unregistered. Bolt
cutters, he says, are used to cut padlocks, gates and other forms of
restriction so as
to gain access to premises.
[10] These features, together with the
plaintiffs occupying the suspected vehicle, led Els to suspect that
the plaintiffs had committed
the armed robbery which had allegedly
occurred at Volkswagen. Els says the “situation fell in (with)
that of what transpired
at the Volkswagen crime scene, and as a
result thereof I effected the arrest”.
[11] In cross-examination it was
suggested to Els that he had been advised at the time of the arrest
by the plaintiffs and by Cesar
and Klink that the plaintiffs had been
at the “Clubhouse”, an established in Salsonville, all
evening and that they
had merely obtained a lift with Cesar and
Klink. Els consistently denied that any explanation of this nature
had been proffered
at the time of the arrest nor was it ever
suggested to him at any other time.
[12] Els made a favourable impression
upon me as a witness. He gave his evidence in a forthright manner and
with confidence. Whilst
his evidence is not beyond criticism I am
unable to fault his demeanour. I am mindful, however, of the fact
that he is an experienced
police official and probably a regular
witness familiar with the witness box and court procedure.
[13] Warrant Officer Coleman of the
South African Police Services, Uitenhage testified that he was the
shift commander of his group
in the police on the night in issue. At
approximately 11 o’clock that evening he got a call and
proceeded to the Sports Complex
of Volkswagen where a robbery had
allegedly occurred. He was the first police official on the scene
although a number of security
officers had already arrived. On
arrival he found the front gate still locked. The gate was duly
opened by cutting the lock with
bolt cutters and he was afforded
entry. Inside the premises he was advised that certain security
officers were still tied up in
the guardhouse. There he found the
officers with their hands tied behind their backs with cable ties.
After freeing them he conducted
interviews with them and took a
statement from,
inter alia
, one Malgas.
[14] Back at the police station
Coleman opened the docket and made the first entries in the
investigation diary, which was handed
in in evidence. He recorded
therein what he had been told at the scene by Malgas and others. He
recorded,
inter alia
, as follows:
“
2.
Plaasgevind te V/W Sportkompleks te Peter Searlestraat Uitenhage.
3. Verdagtes: ± vier onbekende
kleurlingmans – twee te voet en twee in wit Mercedes-Benz m/v –
geen registrasienommer
nie.
4. Modus operandi: twee verdagtes hou
wagte besig, terwyl ander twee verdagtes (te voet) op perseel kom,
dreig wagte met vuurwapen
en maak hulle vas met cable ties.
5. ...”
[15] The evidence of Warrant Officer
Coleman was similarly not seriously challenged.
[16] Two of the security officials
employed by G4 Security, one Malgas and one Kwanini, who were on duty
at the Sports Complex on
the evening in question testified.
[17] Malgas testified that during the
evening of 1 July 2007 at approximately 22h25 a white Mercedes-Benz
vehicle approached the
gate at the Sports Complex where Volkswagen
vehicles are kept. At first he thought it was his supervisor and
Kwanini approached
the gate to open it. When Malgas observed the
vehicle he realised that it was not their supervisor. He recalled
Kwanini and he
moved out himself to investigate. There were two
persons in the car – the driver and a front seat passenger.
[18] When Malgas approached the front
seat passenger alighted and spoke to him. He asked for one Jordaan to
whom he had allegedly
loaned money. Jordaan was not working that
evening and Malgas advised that they should approach him at his home.
It appears from
his evidence that this conversation continued for
approximately 20 minutes. When the person again got into the car the
vehicle
drove off and Malgas turned back to his post. Malgas says
that he had entered the guardhouse reflecting on the conversation and
he realised that something was not right. As a result of his
suspicion he again left the guardhouse and called out to one Fortuin,
also a security officer, who manned a guard tower a short distance
from the gate. Fortuin confirmed that the vehicle had disappeared
from his sight. Malgas called Fortuin to the main guardhouse and he
duly complied. As Fortuin and Malgas rounded the corner of
the
guardhouse he observed a stranger inside the premises at the opposite
corner of the guardhouse wearing green trousers. Malgas
immediately
alerted the main security office and advised of the unauthorised
persons on the property at the Sports Complex asking
for backup. The
man with the green trousers retreated. These events Malgas says
occurred approximately 10 minutes after the Mecedes-Benz
had moved
off.
[19] Having reported the presence of
intruders he entered the guardhouse, however, as he entered he was
grabbed from behind with
a firearm pushed to his head by another
intruder, apparently already inside the guardhouse. Malgas, Kwanini,
who was inside the
guardhouse and Fortuin were all tied up with their
hands behind their backs with cable ties as they were made to lie
facedown on
the floor. As they lay there the intruders demanded the
keys of the Volkswagen motor vehicles. When Malgas advised that the
keys
of the motor vehicles were not kept on the premises and that he
only had the keys of the front gate, they took the keys of the
entrance gate to the premises which were lying on the table. They
also took a packet of Peter Stuyvesant cigarettes. At that time
the
Reaction Unit arrived and the intruders left.
[20] Kwanini confirms the material
features of the evidence of Malgas which occurred in his presence. He
states, however, that after
Malgas decided to approach the
Mercedes-Benz vehicle himself at the gate he returned to guardhouse.
It was a while later that he
saw Malgas being held by the shoulder
with a gun to his head in the guardhouse. He is accordingly unable to
comment on the events
which had occurred outside in the interim.
[21] Neither the evidence of Malgas
nor that of Kwanini in respect of the aforesaid events
i
s
seriously in dispute. Both of them made a favourable impression as
witness. None of the members of the Reaction Unit who had allegedly
arrived at the approximate time that the intruders fled were called
to testify.
[22] Detective Warrant Officer Victor,
a policeman of 23 years experience was the investigating officer. He
says that he was on
standby on the evening in question. He was
summoned to the scene of the crime where he arrived just after
midnight. The security
guards were still on the scene and a number of
members of the South African Police Services were already on the
scene. At the scene
he was advised that a robbery had allegedly
occurred and that the guards had been tied up with cable ties. He
found the cable ties
at the scene which had allegedly been used. He
also noted footprints which he thought may have been left by the
robbers. Photographs
were also taken of the scene.
[23] The following morning Victor was
appointed as the investigating officer. He says that he had sight of
the cable ties which
Els had handed in and which had been found in
the vehicle at the time of the arrest. They were similar in size,
width, colour and
manufacture to those found on the scene which had
been used to tie up the security guards. During the course of the
following day
Victor interviewed the plaintiffs and warning
statements were minuted from them. He considered that there was
sufficient evidence
to justify their further detention and to charge
them. He admits that he formally charged the plaintiffs. I pause to
mention that
it is admitted on the pleadings that members of the
police set the law in motion against the plaintiffs.
[24] The investigation diary which, as
recorded above, was handed in as evidence, records an entry on 3 July
2007, the day prior
to the first appearance, by Colonel Ferreira,
which reads as follows:
“
PP:
1. Case for first appearance pleads.
2. Remand for seven days to hold
ID-raid pleads.
3. No bail.”
[25] Colonel Ferreira was not called
to testify, however, Victor concedes that he had conveyed to Ferreira
his views on the merits
of the case and the extent of the evidence
which may possibly have influenced Ferreira. He admits too that he
met with the public
prosecutor on 3 July 2007 to discuss the
investigation. An entry in the investigation diary on 3 July 2007 by
the prosecutor, Mr
Kleynhans, which reads as follows, confirms this:
“
Mnr OB
1. Reël vir ID parade so gou as
moontlik.
2. Stel vas of die
sigarette waarop beslag gelê was aan die wag behoort.
Reël
dan vir vingerafdrukke.
3. Doen ID op motorvoertuig.“
[26] The perception which Victor held
of the evidence and that which he had been told at the seen is that
it revealed that the plaintiff’s
had been arrested in the
vehicle which had been seen at the gate of the Sports Complex by
Malgas at the approximate time of the
robbery and in which he
understood that the suspects had fled. He also perceived that their
clothing and appearance matched that
given of the suspects.
[27] I pause to mention that it is not
in dispute that Cesar and Klink were indeed at the Sports Complex
that evening in the white
Mercedes-Benz in which the plaintiffs were
arrested and it is apparent that they were indeed the two persons who
engaged Malgas
in conversation. This much is clear from the case put
on behalf of the plaintiffs.
[28] Victor was cross-examined
extensively in regard to his perceptions of the case. He says that he
had regard not only to what
Els had written in his statement but also
what he had been told at the scene. Victor was, however, at pains
repeatedly to say,
notwithstanding the admission on the pleadings
that members of the police set the law in motion, that although he
informed the
prosecutor of his perceptions of the evidence the
decision on whether or not to prosecute was that of the prosecutor,
not his.
[29] It is common cause that the
plaintiffs appeared before the magistrate on the 4
th
of
July 2007 and the matter was remanded with the plaintiffs held in
custody until 11 July. An identify parade was duly held on
10 July
2007 and the security guards, including Malgas, were unable to
identify any of the plaintiffs as role players in the robbery.
Indeed, during the trial, Malgas testified positively that he
certainly did not see any one of the plaintiffs on the scene that
night.
[30] I pause to mention that Victor
was not in all respects a satisfactory witness. During the course of
his evidence he at one
stage sought to suggest that he thought that
the first plaintiff was in fact the owner of the Mercedes-Benz
vehicle. This was later
convincingly dispelled with reference to the
registration papers. His entry in the investigation diary relating to
the description
of the plaintiffs clothing does not accord in all
respects with that noted by Els at the arrest. Notwithstanding the
shortcomings
in his evidence I did not gain the impression that he
was dishonest in his account of the events. I am not able to
criticise his
demeanour as a witness.
[31] Each of the plaintiffs testified
in their own defence. Each of the three plaintiffs testified that
they had been at the “Clubhouse”,
a social establishment
situated, as I have recorded above, in Salsonville. They contend that
during the evening they had consumed
some alcohol together and at
some stage Cesar and Klink had arrived at the “Clubhouse”
in the white Mercedes motor
vehicle. After joining their company for
a short while Cesar and Klink left indicating that they had some
business to conclude
in Uitenhage. Cesar and Klink were accordingly
absent for some period before they ultimately returned again to the
“Clubhouse”.
Not long after their return to the
“Clubhouse” the two of them indicated their intention to
leave. The plaintiffs requested
a lift home with Cesar and Klink and
there request was favourably received. The five of them therefore
proceeded to depart from
the “Clubhouse”, however, as
they were leaving a sixth person, unknown to any of the plaintiffs,
stopped the vehicle
and also requested a lift home. This individual
the plaintiffs say was known to Cesar. Again his request was well
received and
the six persons departed in the Mercedes-Benz from the
“Clubhouse”.
[32] The plaintiffs all testified that
Cesar and Klink then proceeded to Extension 28 in Bloemendal where
this stranger was dropped.
Thereafter they proceeded towards Port
Elizabeth and so it was that they encountered Warrant Officer Els.
[33] The plaintiffs testified that
each of them had protested from the outset that they knew nothing of
the armed robbery and that
they had merely requested a lift. They
testified too that Klink and Cesar confirmed this version, however,
Els, they say, would
not heed their protestations and responded
simply by saying “Ag man, julle sal mos nou sê …
julle was nie daar
gewees nie, almal sê gewoonlik so”. In
this manner they were arrested. The plaintiffs too made a favourable
impression
in evidence.
[34] Ms Geswindt, the plaintiffs’
attorney of record testified in respect of the events of 4 July 2007.
She says that she
was instructed to apply for bail. She approached
the prosecutor in the postponements court who advised that he had not
yet received
the docket as it was still in possession of the senior
public prosecutor, one Kleynhans. He did however inform her that he
had
been advised that the investigating officer would seek a
postponement for seven days in order to hold an identification parade
and would accordingly oppose an application for bail. Kleynhans
confirmed this to her.
[35] In these circumstances she
advised the plaintiffs that the matter would be postponed for seven
days and when the matter was
called and the prosecutor indicated that
the State was opposed to bail and requested a postponement for seven
days in order to
hold an identity parade she did not object. Ms
Geswindt says that it is her experience that if the State requests a
postponement
for seven days and opposes bail they will always get it
and therefore she thought there was no point in her seeking to move
for
bail. She says that she did not at that stage have insight into
the docket and that it was only in 2008 after she requested a copy
of
the docket for purposes of the present trial that she was aware of
the content thereof. This was so, she says, as usually the
defence
only gets access to the docket when the matter is ready for trial.
The matter never came to trial because the charges were
withdrawn.
[36] Finally, Ms Van Vuuren, the first
plaintiff’s life partner testified that Victor had attended at
her home in the early
hours of the morning on 2 July 2007 to advise
of the plaintiff’s arrest and to seek a new set of clothes for
the plaintiff.
[37]
Wrongful and unlawful arrest
In their Particulars of Claim (as
amended) the plaintiffs allege the said arrest, without a warrant, by
members of the South African
Police Service acting within the course
and scope of their employment. They then each proceed to allege as
follows:
“
5. Members
of the South African Police Services, acting within the course and
scope of their employment with the defendant deprived
the plaintiff
of his freedom and wrongfully and maliciously set the law in motion
by arresting the plaintiff on 1 July 2007 without
having had
reasonable and probable cause for so doing and by proceeding to
formally charge and detain the plaintiff.
6. The members of the South African
Police Services, acting as aforesaid, wrongfully and unlawfully and
without having had reasonable
and probable cause for doing so
continued with criminal proceedings and/or caused such proceedings to
be continued with against
the plaintiff on an alleged charge of armed
robbery.
7. The plaintiff was held in custody
in the Uitenhage Police Station, until 4 July 2007, at which date the
plaintiff appeared at
the
Magistrate’s
Court, Uitenhage, on an alleged charge of armed robbery.
8. The said criminal proceedings
against the plaintiff was remanded to 11 July 2007 under case
reference B1977/07, Uitenhage CAS
10/07/2007 (“the case”),
and it was ordered that the plaintiff should remain in custody,
despite the plaintiff having
requested to be released on bail.
8(a) In having ordered as aforesaid
the presiding magistrate acted on the information supplied by the
members of the South African
Police Services (“the officers”)
within the course and scope of their employment with the defendant.
8(b) The officers owed a legal duty to
the plaintiff to prevent the plaintiffs wrongful and unlawful
detention.
8(c) The officers breached this legal
duty in that they:
(i) failed to inform the prosecutor
that there is no direct evidence linking the plaintiff to the
commission of the crime as it
was duty bound to do;
(ii) failed to properly investigate
the alleged crime and/or the plaintiffs alibi as provided to it by
the plaintiff during or about
2 July 2007;
(iii) failed to protect the
Constitutional rights of the plaintiff.
8(d) The conduct of the officers as
set out herein above was wrongful and negligent, alternatively
negligent in that they failed
in one or more respects as set out
above.”
[38] The Particulars of Claim are not
a model of clarity and appears to me to conflate the actions for
wrongful and unlawful arrest,
on the one hand, and malicious arrest
on the other. The distinction between these causes of action was
considered in
Newman v Prinsloo and Another
1973 (1) SA
125
(W) where Margo J stated on p. 127H-128A as follows:
“
Stated
shortly, the distinction is that in wrongful arrest, or false
imprisonment, as it is sometimes called, the act of restraining
the
plaintiff's freedom is that of the defendant or his agent for whose
actions he is vicariously liable, whereas in malicious
arrest the
interposition of a judicial act, between the act of the defendant and
the apprehension of the plaintiff, makes the restraint
on the
plaintiff's freedom no longer the act of the defendant but the act of
the law. The importance of the distinction is that,
in the case of
wrongful arrest, neither malice nor absence of justification need be
alleged or proved by the plaintiff, whereas
in the case of malicious
arrest it is an essential ingredient of the plaintiff's cause of
action, which must be alleged and proved
by him, that the defendant
procured or instigated the arrest by invoking the machinery of the
law maliciously. “
[39] This formulation was more
recently approved in
Relyant Trading (Pty) Limited v Shongwe
and Another
[2007] 1 All SA 375
(SCA). In this case the
arrest was effected without a warrant. Malicious arrest and detention
does not arise in these circumstances
and malice is irrelevant.
Whilst a wrongful and unlawful arrest can be relied upon in the
alternative to a claim for malicious
arrest the two causes of action
should, as a matter of pleading, be pleaded separately (compare
Tödt
v Ipser
1993 (3) SA 577
(A) at 587A-C). The averments made in
the Particulars of Claim, are, however, in my view adequate to cover
a claim for wrongful
and unlawful arrest (compare
Tödt
supra
at 587A-C. See also
Newman v Prinsloo
supra
at 128G-H). In the present case Ms
Potgieter
correctly advised at the commencement of the trial that the
plaintiffs rely only on a wrongful and unlawful arrest. I shall
accordingly
approach the plaintiffs’ claims on this basis.
[40] It is now firmly established that
an arrest and detention is
prima facie
unlawful. It follows
that once the arrest and detention is admitted, as it is in the
present case, that the defendant bears the
onus to establish that the
arrest was lawful. The defendant in the present case relies on the
provisions of section 40(1)(b) of
the Act as a justification for the
arrest. The defendant contends that Warrant Officer Els, being a
peace officer as defined in
the Act, was entitled to arrest the
plaintiffs as he reasonably suspected the plaintiffs of having
committed an offence of robbery,
same being an offence referred to in
Schedule 1 of the Act.
[41] Section 40(1)(b) of the Act
provides as follows:
“
(1) A peace
officer may without warrant arrest any person-
(a) …
(b) whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than the
offence of escaping from
lawful custody;
(c) …”
[42] In order to succeed in a defence
based on section 40(1)(b) of the Act the defendant is required to
establish:
(i) that the arrestor is a peace
officer;
(ii) that the arrestor in fact
entertained a suspicion;
(iii) that the suspicion which he held
was that the suspect (the arrestee) had committed an offence which is
referred to in Schedule
1 (not being the offence of escaping from
lawful custody); and
(iv) that the suspicion rests upon
reasonable grounds.
(See
Duncan v The Minister of
Law and Order
1986 (2) SA 805
(A) at 818G-H.)
[43] It is not in dispute that Els was
in fact a peace officer as defined in the Act nor that robbery is an
offence referred to
in Schedule 1 of the Act. What falls to be
decided is accordingly whether Els entertained a suspicion that the
plaintiffs had committed
robbery with aggravating circumstances and
whether reasonable grounds existed for such a suspicion.
[44] In respect of the first question,
whether Els held a suspicion, the Supreme Court of Appeal has
repeatedly quoted with approval
the passage in
Shaaban Bin
Hussien and Others v Chang Fook Kam and Another
[1969] 3 All
ER 1626
(PC) at 1630c where the following is stated:
“
Suspicion in
its ordinary meaning is a state of conjecture or surmise where proof
is lacking; “I suspect, but I cannot prove”.
Suspicion
arises at or near the starting point of an investigation of which the
obtaining of
prima
facie
proof is the end.”
(Compare
Duncan
supra
at 819I-J;
Minister of Law and Order v Kader
1991 (1)
SA 41
(A) at 50H-I; and
Isaacs v Minister van Wet en Orde
[1995] ZASCA 152
;
[1996] 1 All SA 343
(A) at 348.)
[45]
Els was summoned from his home at
approximately 23h25 on the evening in question by Superintendent
Fourie who advised that an armed
robbery had occurred at the Sports
Complex of Volkswagen in Uitenhage where unregistered new vehicles of
Volkswagen are stored.
He was advised on route, again by
Superintendent Fourie that he should be on the look out for an old
whitish Mercedes-Benz without
number plates in which six brown male
suspects where thought to be travelling. Whilst still talking to
Superintendent Fourie Els
saw a vehicle approaching from the
direction of Uitenhage which matched the description perfectly. He
turned around and followed
the vehicle ultimately stopping the
vehicle and apprehending the occupants. I do not think it probable
that there would be many
vehicles at that hour matching the
description and bearing no registration plates travelling from
Uitenhage towards Port Elizabeth.
I consider that Els’s
conclusion that this may well be the vehicle to which Superintendent
Fourie referred was a reasonable
one. Inside the vehicle were five
brown men. Although the number of occupants did not match the report
entirely, the complexion
of the persons did. When the vehicle was
searched after it had been brought to a stop approximately six loose
registration plates
were found in the boot of the vehicle. In
addition a number of black cable ties, some two-way tape and bolt
cutters were found
in the car. Els states that these items are items
which in his experience are frequently used in motor vehicle
robberies. Although
Els may not have known at this time what had
allegedly taken place he knew that the alleged robbery had occurred
at Volkswagen
where new vehicles were stored. He says he suspected
that the occupants of the car had indeed perpetrated the reported
robbery.
[46] Although no firearm was found in
the vehicle I have little hesitation in holding, on the evidence,
that Els did indeed hold
a
bona fide
subjective suspicion that
the plaintiffs had committed the robbery. The contrary was not
suggested to him.
[47] I turn to consider whether
reasonable grounds to support this suspicion existed. It is clearly
established on the evidence
of Malgas and Kwanini that robbery with
aggravating circumstances had been committed. Malgas had been held up
at gunpoint, the
guards had been tied up with cable ties and the keys
of the new vehicles had been demanded. When these keys were not
forthcoming
the keys to the gate giving access to the premises were
taken. Although he did not at the time of the arrest know all these
details
Els had been advised of this robbery. The report came to him
from a senior police officer and I consider that such a report
constitutes
reasonable grounds for him to believe that such a robbery
had occurred, as indeed it had.
[48] It is not clear from the evidence
what the source was of the information that Fourie relayed to Els.
From the evidence of Malgas
it seems probable that it may have been
obtained from one of the members of the reaction team who arrived on
the scene at approximately
the time that the robbers fled. I need
not, however, speculate on this issue. It is common cause that the
white Mercedes-Benz in
which the plaintiffs were travelling had been
at the Sports Complex at Volkswagen that evening. It emerges clearly
from the evidence
of the plaintiffs themselves and the case put to
Malgas that it was indeed Cesar and Klink who had approached Malgas.
This vehicle
was present at the Sports Complex at approximately the
time when the robbery occurred. It emerges from the evidence of
Malgas that
the vehicle had approached the Sports Complex in
Uitenhage at approximately 22h25 whereafter the occupants thereof had
engaged
Malgas in conversation for approximately 20 minutes. The
robbery occurred shortly thereafter. The vehicle was confronted by
Els
in Port Elizabeth at approximately 23h45. In the circumstances
within an hour of the commission of the robbery the plaintiffs were
found in Port Elizabeth to be passengers in the vehicle which had
been present at the robbery in Uitenhage.
[49] It is readily apparent from the
evidence of Malgas that the intention of the robbery was directed at
removing some of the new
registered vehicles at the complex, hence
the demand for the car keys made by the robbers. The Sports Complex
serves as a storage
depot for such cars. The discovery of loose
registration plates in the boot and two-way tape in the car, Els
says, further stimulated
his suspicion. I consider that this factor
would reasonably found a suspicion that the occupants of the car had
committed the offence.
[50] It was repeatedly suggested to
Els in cross-examination that two-way tape could be utilised for any
other purpose. That he
fairly conceded. I do not however consider
that the mere fact that this item could be utilised for other
purposes serves to detract
from the reasonableness of the suspicion
of a police officer particularly where it is viewed in conjunction
with the unrelated
registration plates found in the boot of the
vehicle.
[51] Els states that cable ties are
frequently used in robberies to restrict person’s movements.
Whilst the evidence does
not reveal that Els knew at the time of the
arrest that the security guards had been tied up with cable ties this
fact illustrates
the realism of Els’s suspicion. Indeed it
transpired in due course, as emerges from the evidence of Victor that
the cable
ties found in the motor vehicle were of the same size,
width, colour and manufacture as those used to tie up the security
guards.
[52] Ms
Potgieter
, on
behalf of the plaintiffs, argues that neither Els nor Fourie had any
“direct evidence” linking the plaintiffs to
the alleged
crime and therefore they ought not to have arrested the plaintiffs. I
do not understand section 40(1)(b) of the Act
to require “direct
evidence”. What is required of an arresting officer is that he
should hold a suspicion and that
such suspicion should rest upon
reasonable grounds. A suspicion, per definition, as set out above, is
an unproven surmise. In order
to meet the requirement of section
40(1)(b) such surmise must of course rest upon reasonable grounds. In
the present instance,
on the evidence, it cannot be gainsaid that the
plaintiffs were present in the motor vehicle which had been at the
scene where
an armed robbery had occurred at a Volkswagen storage
depot less than an hour prior to the apprehension of the plaintiffs.
In addition
a number of items found in the vehicle were of a nature
which may reasonably be utilised in the execution of such a robbery.
These
factors, I think, constitutes very strong circumstantial
evidence which, in my view would found a reasonable suspicion.
[53] Much was made in
cross-examination of the plaintiffs’ alleged communication to
Els, which Els denies, that they had merely
obtained a lift in the
vehicle. Even accepting that such a communication was made I do not
consider that in itself would be sufficient
to displace the
reasonable suspicion held by Els.
[54] It is further argued that the
evidence of Malgas and Kwanini on oath does not support any
reasonable suspicion that the white
Mercedes or any of the plaintiffs
were connected to the crime. I do not agree. As aforesaid it cannot
be gainsaid, nor was the
contrary suggested in evidence, that it is
the same vehicle and that it was Cesar and Klink who attended at the
gate of the Sport
Complex and occupied Malgas with their enquiry
about one Jordaan. Immediately upon the departure of this vehicle
Malgas, a trained
security guard, was suspicious of their conduct.
The robbery ensued a few minutes later. Malgas testified on oath that
he concluded
at the time that the vehicle was part of the event. I
have little hesitation in finding that the events to which Malgas
testified
gives rise to a reasonable suspicion that this motor
vehicle formed an integral part of the execution of the crime. That
is what
Malgas conveyed to Coleman immediately after the events. When
the items found in the vehicle are added to these facts I do not
think that Els can be faulted for having suspected that the occupants
of the vehicle had participated in the crime.
[55] In the circumstances I consider
that the defendant has established all the jurisdictional facts
required to justify an arrest
in terms of section 40(1)(b) of the
Act.
[56] In cross-examination Els was
repeatedly confronted with the plaintiffs alleged statements to him
at the time of the arrest
that they had been at the “Clubhouse”
all evening and it was suggested that Els ought to have investigated
this, and
other events, before resolving to arrest the plaintiffs. It
was suggested to him that had he done so he may have decided not to
carry out the arrest. This strikes at his exercise of his discretion
whether or not to arrest.
[57] It is now well established that
an arrest and detention must be both constitutionally and statutorily
justified. (See
Minister of Correctional Services v Kwakwa
[2002] 3 All SA 242
(SCA); and
Mistry v Interim Medical and
Dental Council of South Africa
and Others
1998
(4) SA 1127
(CC).)
[58] Once the jurisdictional facts set
out in section 40(1)(b) of the Act have been satisfied, as I have
found that they have, a
peace officer may invoke the power set out in
the section, i.e., he may arrest the suspect. He has a discretion
whether or not
to exercise that power. (See
Duncan
supra
at 818H-J.) Where a plaintiff seeks to attack the manner
in which that discretion has been exercised in circumstances where
the
jurisdictional facts referred to above have been satisfied, he
bears the onus of proof.
See
Minister
of Safety and Security v Sekhota and Another
[2010] JOL 26465
(SCA) at para [49].
[59] In the
Sekhota
case
Harms JA referred with approval to the approach to onus set out by
Hefer JA in
Minister of Law and Order v Dempsey
1988
(3) SA 19
(A). Harms JA states, with reference to Hefer JA’s
judgment in
Dempsey’s
case, as follows at para
[50]:
“
It cannot be
expected of a defendant, he said, to deal effectively in a plea or in
evidence with unsubstantiated averments of
mala
fides
and the like, without the specific facts upon which they are based,
being stated. So much the more can it not be expected of a
defendant
to deal effectively with a claim (as in this case) in which no
averment is made, save a general one that the arrest was
“unreasonable”. Were it otherwise, the defendant would in
effect be compelled to cover the whole field of every conceivable
ground for review, in the knowledge, that should he fail to do so, a
finding that the onus has not been discharged, may ensue …”
[60] Where it is sought to attack the
manner in which a discretion to arrest has been exercised, whether on
constitutional or common
law grounds, it is incumbent upon the
plaintiff to raise the issue in his pleadings and to plead facts upon
which the attack is
based. In the present matter the issue has not
been raised and no averments are contained in the pleadings which
might reasonably
have led to an anticipation that it would be an
issue in the trial. I do not consider that the issue arises in the
present matter.
[61] Before me Ms
Potgieter
argues that this shortcoming in the pleadings is not fatal as the
issue has been fully ventilated in evidence and “the officers
were given the opportunity to answer all these aspects”. I do
not agree.
[62] In
South British Insurance
Company Limited v Unicorn Shipping Lines (Pty) Limited
1976
(1) SA 708(A)
at 714G Holmes JA considered when it would be competent
for a court to pronounce upon matters not raised in pleadings. He
stated
as follows:
“
However, the
absence of such an averment in the pleadings would not necessarily be
fatal if the point was fully canvassed in evidence.
This means fully
canvassed by both sides in the sense that the court was expected to
pronounce upon it as an issue.”
[63] It is not sufficient for the
plaintiff to deal with an issue in cross-examination, no matter how
thoroughly it is dealt with.
What is required is that the issue
should be fully canvassed by both sides. In the present case I do not
think that the defendant
ever anticipated that the plaintiff was to
raise this issue. When Els was called to testify in chief he was not
led on any issue
relating to the exercise of his discretion. I do not
think that it was possible to canvas the issue as no indication is
given in
the pleadings of the facts upon which such attack would be
based. It is clear to me that it is not a matter upon which the
defendant
had consulted with Els and it was not anticipated that he
would be required to meet such a case. In the circumstances I do not
consider that this is a case where it can be said that both parties
have fully canvassed the issue of the exercise of his discretion.
[64] The plaintiffs’ case in
respect of wrongful and unlawful detention on the pleadings is that
the detention was unlawful
because the arrest was affected without
reasonable and probable cause. It was not the plaintiffs’ case,
in the alternative,
that if the arrest was lawful the detention
became unlawful at some stage thereafter, but prior to their
appearance in court. This
notwithstanding, Ms
Potgieter
argues that the plaintiffs were not brought before court within the
48 hours as envisaged in section 50(1)(c) of the Act. If this
is
correct then it follows that the detention of the plaintiffs would
have been unlawful from the moment the 48 hours lapsed until
at least
the plaintiffs appeared in court.
[65] The factual basis for this
argument is common cause. The argument relates to an interpretation
of section 50 of the Act. In
the circumstances I consider that the
argument is open to the plaintiffs.
[66] The plaintiffs were arrested at
approximately 23h45 on Sunday evening 1 July 2007. Forty eight hours
calculated from the time
of their arrest lapsed at 23h45 on the
evening of Tuesday 3 July 2007. They first appeared in court on
Wednesday 4 July 2007.
[67] Section 50(1)(c) reads as
follows:
“
(c) Subject
to paragraph (d), if such an arrested person is not released by
reason that-
(i) no charge is to be brought against
him/her; or
(ii) bail is not granted to him/her in
terms of section 59 or 59A, he shall be brought before a lower court
as soon as reasonably
possible, but not later than 48 hours after his
arrest.”
[68] These provisions are, as appears
from the section, subject to the provisions of section 50(1)(d). The
relevant portion of section
50(1)(d) provides as follows:
“
(d) If the
period of 48 hours expires-
outside ordinary court hours or on a
day which is not an ordinary court day, the accused shall be brought
before a lower court
not later than the end of the first court day.
...”
[69] A court day as defined in the Act
is a day upon which the court in question normally sits and ordinary
court hours means from
09h00 until 16h00 on a court day.
[70] Ms
Potgieter
relies
for her argument on
Prinsloo v Nasionale Vervolgingsgesag en
Andere
2011 (2) SA 214
(GNP) where Du Plessis AJ held that on
a proper interpretation of section 50(1)(d) of the Act an arrested
person must, if the 48
hours within which he must in terms of the
section be brought before a court expires outside normal court hours,
or on the day
which is not a normal court day, be brought before a
court during and not later than the end of the first court day after
his arrest.
On an acceptance of this interpretation the plaintiffs
had to be brought before a court on the first day after their arrest,
i.e.,
Monday, 2 July 2007.
[71] I find myself unable to agree
with this interpretation of the section. Section 50 requires a
detainee to be brought before
a court “as soon as reasonably
possible, but not later than 48 hours after his arrest.” The
section does not entitle
the police to detain a person for 48 hours
in every instance – he is to be brought before a court as soon
as reasonably possible.
When it is reasonably possible would depend
upon all the circumstances of each case. However, irrespective of
circumstances, subject
only to section 50(1)(d), he must be brought
before the court before the lapse of 48 hours. The 48 hours
accordingly stipulates
the maximum period which is permitted, subject
to section 50(1)(d). Section 50(1)(d)(i) provides a qualification to
the maximum
time limit in circumstances where the period expires
either outside of the normal court hours or on the day on which the
court
does not normally sit. In such circumstances he may appear “on
the first day”. When reference is had to the remainder
of
section 50(1)(d) it is apparent that in each instance a limited
extension to the period of 48 hours is granted. I consider that
the
proper interpretation of section 50(1)(d)(i) is that where the 48
hour period expires outside of court hours or on a day on
which the
court does not normally sit and it has not been reasonably possible
to bring the detainee before a court sooner, the
detainee is required
to be brought before a court on the first day after the expiry of the
48 hours. Any other interpretation of
the section appears to me to
give rise to absurd results which I do not think that the Legislature
could have envisaged. In the
present instance, by way of example, it
would mean that the plaintiffs would have had to be brought before a
court before 16h00
on Monday, 2 July 2007, i.e., the deadline
provided would be reduced to just more than 16 hours notwithstanding
that the entire
Tuesday, 3 July 2007 still falls within the 48 hours
limit stipulated.
[72] In the circumstances I am unable
to uphold this argument. The plaintiffs did appear on the first court
day after the lapse
of 48 hours as required by section 50. No case
has been made on the pleadings or in the evidence that it was
“reasonably
possible” to have brought them before court
prior to their actual appearance.
[73] The case in respect of wrongful
and unlawful arrest does not, however, end there. On the pleadings
(as amended) and the plaintiffs
allege that their detention after 4
July 2007, albeit by order of court, is unlawful. The basis for this
argument is contained
in paragraph 8 of the particulars of the
plaintiffs’ claim as set out above. It is conceded in argument
that the further
detention of the plaintiffs after 4 July 2007
occurred on a warrant of detention issued by the magistrate, as is to
be expected
in circumstances where the magistrate has ordered the
further detention.
[74] I have referred above to the
distinction between wrongful and unlawful arrest and detention and
malicious arrest and detention
as formulated by Margo J in
Newman’s
case and approved by the Supreme Court of Appeal in the
Relyant
Trading
case. The distinction, Margo J said, was that in the
case of wrongful and unlawful arrest the act of restraining the
plaintiff’s
freedom is that of the defendant or his agent. In
the case of malicious arrest there is an interposition between the
act of the
defendant and the apprehension of the plaintiff. This
makes the restraint of the plaintiff’s freedom no longer an act
of
the defendant (or his agent) but an act of the law. (See
Newman
supra
p. 127H.)
[75] It is for this reason that where
an arrest is carried out on an warrant issued in the proper form by a
duly authorised official
the existence of the warrant affords the
arresting officer a complete defence to a claim for wrongful and
unlawful arrest. (See
Divisional Commissioner of SA Police,
Witwatersrand Area, and Others v SA Associated Newspapers Limited
and Another
1966 (2) SA 503
(A); and
Prinsloo v
Newman
1975 (1) SA 481
(A) 492
.)
[76] By parity of reasoning, where an
accused person is brought before a magistrate by the prosecuting
authority and the magistrate
orders that he be detained in custody
his further detention is an act not of the arrestor (or the
investigating officer) but of
the law. This appears to be reinforced
by the recent decision of
Minister of Safety and Security v
Sekhota
supra
where Harms JA states as follows:
“
[42] While
it is clearly established that the power to arrest may be exercised
only for the purpose of bringing the suspect to justice
the arrest is
only one step in the process. Once an arrest has been effected the
peace officer must bring the arrestee before court
as soon as
reasonably possible and at least within 48 hours (depending on court
hours). Once that has been done the authority to
detain that is
inherent in the power to arrest has been exhausted. The authority to
detain the suspect further is then within the
discretion of the
court.”
[77] It matters not whether the
initial arrest was lawful or not (see
Isaacs v Minister van Wet
en Orde
supra
at 349f-350g). One of the objectives of
such a first appearance before a court is to enable the accused
person to raise a dispute
as to whether there is sufficient evidence
against him to justify his further detention. This is a matter on
which the magistrate
is called to exercise a discretion. (See
Isaacs
supra
at p. 350d-e.) In this case the events before the
magistrate appear from the evidence of Ms Geswindt. The plaintiffs
were represented
in the proceedings. The prosecutor indicated to the
magistrate that the investigating officer was opposed to the grant of
bail
and requested a postponement for 7 days for an identity parade
to be held. On behalf of the plaintiff no objection was raised
apparently
because Ms Geswindt was of the view that an objection at
that stage would normally not succeed. I do not think that these
circumstances
can detract from the fact that the magistrate was
called upon to exercise a discretion. He performed that function and
determined
that the matter should be remanded with the plaintiffs
held in custody.
[78] In all the circumstances I
consider that the further detention of the plaintiffs after 4 July
2007 occurred by “an act
of the law” (to adopt the
terminology of Margo J,
supra
). That being so, the defendant
can only be liable if he, or an agent for whose conduct he is
vicariously liable, set the law in
motion,
animus
iniuriandi
to obtain such a warrant of a detention. Suffice it to say at
this stage that the fault required to succeed in such a claim is
dolus
. Negligence, as alleged in paragraph 8 of the
Particulars of Claim, as amended, and argued on behalf of the
plaintiffs will not
suffice. (See
Minister of Justice and
Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA)
para [64].)
[79] In this
regard considerable emphasis was placed in cross-examination and in
argument before me on Victor’s communications
with Kleynhans,
the public prosecutor. It was put to Victor that the warrant of
detention came about because Victor had conveyed
to Kleynhans that in
his view a
prima
facie
case had been
established. In this, it is argued, he was negligent. He had advised
Kleynhans that he believed that sufficient evidence
existed by virtue
of the fact that the plaintiffs had been arrested in the vehicle
which had been seen to be fleeing from the scene
of the crime and
that the description of the plaintiffs dress and complexion matched
the true state of affairs. To the extent that
some of the factors
relied upon by Victor do not appear from the statements contained in
the dockets Victor testifies that he relied
not only on the content
of the dockets but also inferences which he drew from Els’s
statement and on what he had been told
by witnesses at the scene.
[80] The criticism of Victor in this
regard is, in my view, overstated. In
Rex
v Patel
1944 AD 511
at
519 Feetham JA said:
“
A detective,
when discussing with a public prosecutor the evidence which is
available, or which may be required for the purpose
of supporting a
prosecution in any given case, may naturally and properly indicate
his view as to the value of any evidence obtained
or likely to be
obtained, and the prospect of success in proving a charge by means of
such evidence; in doing so he is exercising,
or seeking to exercise,
influence which his official position gives him a legitimate
opportunity of exercising, and is thus performing
an act in his
official capacity and in the exercise of his official functions,
though he may not be discharging any duty specifically
imposed upon
him by law, or obeying any direction expressly given to him by his
superiors in respect of the execution of his office.
In the
circumstances, it seems to me that an investigating officer is
entitled to express his views to the prosecutor on whether
or not an
offence has been committed.”
(See also
Prinsloo and Another v
Newman
supra
at 494H.)
In any event, as set out above,
negligence on the part of Victor will not suffice.
[81] If however the plaintiffs succeed
in their claim for malicious prosecution then it seems to me to
follow that the detention
after 4 July 2007 would also be unlawful.
[82] To summarise the findings thus
far: the defendant has succeeded in establishing the jurisdictional
facts required to justify
an arrest in terms of section 40(1)(b) of
the Act; the manner in which the arresting officer exercised his
discretion does not
arise on the pleadings nor has it been fully
canvassed by both sides in evidence; the plaintiffs were brought
before a magistrate
within the period envisaged in section 50 of the
Act; and by virtue of the plaintiffs having been detained after 4
July 2007 by
a warrant ordered by the magistrate at the request of
the prosecutor no claim founded in negligence of the investigating
officer
can succeed.
[83]
Malicious
prosecution
I turn to consider the plaintiffs
claim for malicious prosecution. In order to succeed in a claim for
malicious prosecution the
plaintiff is required to establish that:
(a) the defendant set the law in
motion – they instigated or instituted the proceedings;
(b) the defendant acted without
reasonable and probable cause;
(c) the defendant acted with malice
(or
animo iniuriandi
); and
(d) the prosecution has failed (see
Minister of Justice and Constitutional Development v Moleko
supra
).
[84] In a claim of this nature the
plaintiff bears the onus in respect of all elements of the delict,
including
animus iniuriandi
. See
Beckenstrater v
Rottcher and Theunissen
1955 (1) SA 129
(A) 135-136; and
Van
der Merwe v Strydom
1967 (3) SA 467
(A) at 467. That the
servants of the defendant set the law in motion as envisaged above is
admitted on the pleadings. It is similarly
not in dispute that all
charges were withdrawn against the plaintiffs. The first and fourth
requirements are accordingly established.
What remains to be
determined is whether the defendants acted without reasonable and
probable cause and with
animus iniuriandi
.
[85] Each of the plaintiffs have
alleged at paragraphs 17 of their Particulars of Claim that the
defendant acted “unreasonably,
without probable cause,
animo
iniuriandi
, was actuated by improper motive and/or acted with
gross negligence in the criminal proceedings as instituted against
the plaintiff
…” . I have stated above that negligence
will not suffice. Neither will gross negligence. In the Supreme Court
of
Appeal in the
Moleko
case
supra
, at para [64]
it was said:
“
The
defendant must thus not only have been aware of what he/she was doing
in instituting or initiating the prosecution, but must
at least have
foreseen the possibility that he/she was acting wrongfully, but
nevertheless continued to act reckless as to the
consequences of his
or her conduct (
dolus
eventualis
).
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.”
Negligence is accordingly irrelevant
for purposes of the present proceedings.
[86] Not every prosecution which is
concluded in the favour of the accused constitutes a malicious
prosecution. It is in every instance
incumbent upon the plaintiff to
establish an absence of reasonable and probable cause. It is not
necessary that a watertight case
must already be contained in the
docket at the time the law is set in motion. Reasonable and probable
cause means an honest belief
founded on reasonable grounds that the
institution of proceedings is justified. The concept involves both a
subjective and an objective
element. (See
Beckenstrater v
Rottcher and Theunissen
supra
at p. 136B and
Prinsloo
and Another v Newman
supra
at 149H.) In
Beckenstrater
Schreiner JA, at p. 136A-B, says:
“
When it is
alleged that that the defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have
such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged;
if despite
his having had such information, the defendant is shown not to have
believed in the plaintiff’s guilt, a subjective
element comes
into play and disproves the existence, for the defendant, of
reasonable and probable cause.”
[87] Victor testified that he charged
the plaintiff. He was the investigating officer. He had the content
of the docket at his disposal
and, he states, he had further
information which had been conveyed to him by witnesses at the scene.
It was known at that stage
that an armed robbery had occurred. I have
dealt above with the evidence of Malgas and the time frame of the
events. It appears
accordingly that the robbery occurred at
approximately 23h00 on the evening of 1 July 2007, or shortly prior
thereto at Uitenhage.
At approximately 23h45 the white Mercedes
vehicle was apprehended by Els at the Stanford Road turnoff in Port
Elizabeth. The plaintiffs
were all passengers in the vehicle. It
follows that a very brief period had lapsed from the time that the
vehicle had been seen
at the Sports Complex in Uitenhage to the time
that it was apprehended in Port Elizabeth.
[88] Victor had at his disposal two
warning statements taken from the plaintiffs and from Klink, the
driver of the motor vehicle.
Klink in his statement admits that he
and Cesar proceeded to the premises of Volkswagen and there Cesar had
spoken to security
at the gate. He states that they had waited at the
gate for approximately 10 minutes. On the totality of the evidence I
consider
that there was every reason for Victor to believe, as it
transpires, correctly, that the motor vehicle which had drawn up to
the
gate where Malgas had been engaged in conversation was the same
vehicle in which the plaintiffs had been apprehended.
[89] It is true that the plaintiffs
had all indicated that they had merely received a lift from the
“Clubhouse” with
Cesar and Klink and that Klink confirmed
same. Victor testifies that he had serious doubts about the veracity
of this explanation.
Given the time frame of the events as they
appear from the docket which was in Victor’s possession, the
relatively brief
period which had lapsed from the time when the
robbery is alleged to have occurred in Uitenhage to the time of the
arrest in Port
Elizabeth, I do not think that Victor’s doubts
were unreasonable. I think that Victor may justifiably have had every
anticipation,
on what was known at that time, that the plaintiffs may
be pointed out at an identification parade. Of course, once the
result
of the identity parade was known the position changed.
[90] I have
referred earlier to the significance of the articles found in the
vehicle at the time of the arrest and the inferences
which might
reasonably have been drawn from such a discovery. In all these
circumstances I am of the view that the plaintiffs have
not succeeded
in proving on a balance of probability that the information before
Victor at the time, prior to the identity parade, was
insufficient to lead a reasonable man to conclude that the plaintiffs
had
probably committed an offence of robbery with aggravating
circumstances. No evidence exists on which it may be found that
Victor
in fact did not believe in the plaintiffs’ guilt.
[91] In the circumstances the
plaintiffs’ case must fail for a want of proof that the
information before Victor was insufficient
to lead a reasonable man
at that stage, prior to an identification parade being held, to hold
an honest belief that the institution
of proceedings was justified.
Put differently, the evidence does not, in my view, establish an
absence of reasonable and probable
cause.
[92] In the result, the plaintiffs’
claims are dismissed with costs.
______________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv
Potgieter
instructed by Carol Geswindt Attorneys, Port Elizabeth
For Defendant:
Adv
Naran
instructed by the State Attorney, Port Elizabeth