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[2018] ZAECPEHC 50
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S.V and Others v Minister of Police (481/2016) [2018] ZAECPEHC 50 (23 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NUMBER: 481/2016
DATE HEARD:
20/08/2018-23/08/2018
DATE
DELIVERED: 18/09/2018
In
the matter between:
S
V
FIRST
PLAINTIFF
E
V
SECOND
PLAINTIFF
D
B
THIRD
PLAINTIFF
M
D
FOURTH
PLAINTIFF
and
THE
MINISTER OF
POLICE
DEFENDANT
JUDGMENT
NAIDU
AJ:-
INTRODUCTION:
[1] This is an action for
damages wherein which the plaintiffs seek damages arising out of
their alleged unlawful arrest and detention
by employees of the
defendant being members of the South African Police Service.
BACKGROUND
[2]
It is common cause that on the late evening of the 14
th
November 2014 and into the early hours of 15
th
November 2014, and at or near Maduna and Rosedale Streets, Rosedale,
Uitenhage, the plaintiffs were arrested by members of the
South
African Police Services and later detained in pursuance of such
arrest.
[3]
The third plaintiff was detained at the Kamesh Police Station from
the early hours of the Saturday the 15
th
November 2014, until his release from detention at the Uitenhage
magistrate’s Courts on the Monday morning of the 17
th
November 2014.
[4]
The first plaintiff was detained at the Uitenhage Police Station at
Church Street, Uitenhage, and was released into the care
of his
mother, one
Mrs
Meyer
a few hours
later on the 15
th
November 2014.
[5] It is submitted on
behalf of the plaintiffs that their arrest and detention was wrongful
and unlawful.
[6] The defendant submits
that the members of the South African Police Services, who effected
the arrest, were acting in terms of
section 40(1)
of the
Criminal
Procedure Act 51 of 1977
, in that the plaintiffs had been suspected
in the commission of a crime, and that their subsequent arrest and
detention was lawful.
THE PLAINTIFFS CASE
THE THIRD PLAINTIFF’S
CASE- D B:
[7]
The Third Plaintiff,
Mr
D B
testified that
at the time of the incident, he was 18 years old.
[8]
He submitted that on or about the late evening of the 14
th
November 2014, and proceeding into the early hours of the following
morning being the 15
th
November 2014, he and the fourth defendant were on their way to
Rina’s Tavern
,
in 24
th
Avenue, Rosedale, Uitenhage. On the way to the tavern, they met the
first and second plaintiffs who requested them to wait with
them as
they were looking after a car. The first and second plaintiffs are
known to him as they all reside in the same area.
[9]
Mr B
confirmed
that the vehicle which was being cared for by the first and second
plaintiffs was a ‘’Red Fox’’.
The first
plaintiff had advised them that the owner of the vehicle had gone to
obtain fuel for the vehicle and had requested him
and his brother,
the second plaintiff, to look after the vehicle whilst he obtained
such fuel.
[10]
He submits further that he and his fellow plaintiff’s waited
for about one and a half hours when they decided to remove
the
battery of the vehicle and other valuables they could find in the
vehicle for safe keeping as the driver of the vehicle had
not
returned. The fourth plaintiff opened the bonnet of the car from the
inside of the vehicle. The third plaintiff then removed
the
attachments of the battery and removed the battery, and handed over
same for the second plaintiff to carry.
Mr
B
confirmed that it
was the group’s intention to take the battery to the home of
the first and second plaintiff for safe keeping.
[11]
Whilst on their way to the second plaintiff’s home, and when
they were approximately ten meters away from the vehicle,
they saw
members of the South African Police Services approach them.
Mr
B
then submitted
that the group of their own accord and volition, approached the
police persons in the vehicle. He confirmed that
three police members
were present, a black male officer, a coloured male officer, and a
coloured female officer. They then approached
the police officers and
advised them as to the circumstances of them carrying the battery. It
was the second plaintiff that attempted
to inveigle the police
officers as to the seemingly innocent circumstances of their
possession of the battery, however his assiduous
attempts were
seemingly brushed aside by the police officers, who advised the group
that it appeared that they were up to no good.
[12]
Mr B
submitted further, that being unswayed by the explanation of the
second plaintiff, one of the police officers, the black male officer,
then slapped the second plaintiff. They were then advised that they
were all being arrested for the theft of the battery. They
were
placed in the back of a demarcated police van. They were not taken
immediately to a police station, but the police officers
drove around
for about half an hour, before they were taken to the Kamesh Police
Station.
[13]
At the Kamesh Police Station, they were all taken into a room, where
they were questioned by a police officer. They were requested
to
provide their names and addresses, which they did. The police officer
then took him and the second and fourth plaintiffs to
the cells,
where they were detained.
[14]
Mr B
then testified that there were three to four other men in the cells,
who summarily searched them upon their entrance into the cell,
and
were questioned whether they had any monies on them. The third
plaintiff confirms that he was scared and felt bad. He testified
further that the men in the cell looked rough and had tattoos
depicting them to be affiliated to the ‘’
26’’
gang
.
[15]
Regarding the conditions inside the cell, the third plaintiff
submitted that the mattresses were thin and the blankets were
infested with fleas. He further confirms having received visits from
his parents over the particular weekend.
[16]
On the morning of the 17
th
November 2014, he was taken to the Uitenhage magistrate’s
court, where the charges against him and his fellow plaintiffs
were
withdrawn.
[17]
Under cross examination by
Ms
Ntsepe
, for the
defendant,
Mr B
admitted, that his fellow plaintiffs never actually advised him as to
the identity of the owner of the vehicle. He further admitted
that he
had agreed to assist the first and second plaintiffs in removing
valuables from the vehicle, including the battery. It
would appear
that the battery was the only object of value.
[18]
It was also put to
Mr
B
that various
versions of how he and his fellow plaintiffs came to be in possession
of the battery, were given to the police officers
present at the
scene.
Mr B
denied this and confirmed that only a single version had been
conveyed to the police officers.
[19]
Mr B
further confirmed that when the police officers had requested details
as to the identity of the owner of the vehicle, the second
plaintiff,
E V
,
the brother of the first plaintiff gave the nickname of the owner to
the police.
Mr
B
conceded he was
unable to provide the name and home details of the owner of the
vehicle. He further replied in the affirmative
to
Ms
Ntsepe’s
submission that the police officers at the scene could not take them
to the address of the owner as none of the plaintiffs were
able to
provide such details.
[20]
Mr B
also conceded that it would appear suspicious that they were unable
to provide details of the owner of the vehicle. He also confirmed
that his rights were explained to him upon his arrest by the police.
[21]
Mr B
further admitted that at his court appearance, he and his fellow
plaintiffs had entered into a mediation agreement with the State,
that he was part of the negotiations. He further admitted that
according to the mediation agreement there was no indication that
the
owner of the vehicle had consented to them removing the battery, or
to look after same.
[22] It was further put
to
Mr B
that at no stage did he convey his version of events
on record, in terms of his warning statement. The witness conceded
that this
was indeed so.
THE
FIRST PLAINTIFF’S CASE- S V
:
[23]
The first plaintiff confirmed that at the time of the incident he was
17 years old and that he was residing with his mother
and two
brothers,
E and D
,
at […] P. Street, Rosedale, Uitenhage.
[24]
The first plaintiff submitted that on the evening of his arrest, he
and his brother
E V
,
being the second plaintiff herein, had decided to attend upon
Rina’s
Tavern
, in order to
consume alcohol. They had proceeded to walk to the tavern, when they
came across a vehicle that appeared to be stuck.
The vehicle was
described as being a ‘’Red Fox’’. The driver
of the vehicle was sitting in the vehicle
and when he saw them, he
got out and summarily requested them to look after the vehicle.
[25]
The driver of the vehicle had requested them to look after the
vehicle as he intended to purchase fuel for the vehicle.
[26]
The first plaintiff confirmed that he and his brother had waited at
the aforesaid vehicle for more than a half hour when the
third and
fourth plaintiffs arrived. He is acquainted with the third and fourth
plaintiffs as they reside in the same area. He
then beseeched them to
wait with him and his brother. After waiting almost two hours, and
the driver of the vehicle having not
returned, they decided to remove
the valuables from the vehicle for safe keeping. The intention was to
store any valuables at his
home.
[27]
He further confirmed that the group had assented to this plan, with
the fourth plaintiff
M
D.
M
D
opened the bonnet
of the vehicle and the third plaintiff,
D
B
, removing the
battery. The third plaintiff then handed the battery to
E
V
, the second
plaintiff herein to carry, and they began to walk away from the
vehicle.
[28]
It was then submitted that when the group was approximately 10 meters
away from the vehicle, a police vehicle approached them.
The police
stopped and climbed out, and the group approached the police
officers. The second plaintiff placed the battery on the
ground and
advised the police officers of the circumstances of their possession
of the battery, that they were merely holding on
to the battery for
safe keeping. The police officers were disinclined to believe the
submissions made and advised them that they
were up to no good, and
they were consequently going to arrest them.
[29]
It is further submitted that the second plaintiff once again
attempted to explain their possession of the battery to the police
officers, however they refused to listen. It was further submitted
that they were ‘’rough’’ with the second
plaintiff, and in fact slapped him.
[30]
Mr V
further submits that he and his fellow plaintiffs were all then
loaded into the back of a police van, and after travelling around
for
approximately 20 minutes, they were all taken to the Kamesh Police
Station.
[31]
At the police station they were placed in a room where they were
interviewed by certain police officials and their personal
details
were requested. A male and female police officer were present in the
room. After they were interviewed,
Mr
V
submitted that he
was once again placed in the police van and he was then taken to the
Uitenhage Police Station in Church Street,
Uitenhage.
[32]
At the police station, he was placed alone in a dusty cell. He
remained in the cell until he was released into the care of
his
mother later the afternoon of the same day. He confirmed that both he
and his mother were instructed to attend court on the
Monday, the
17
th
November 2014 at 08h30.
[33]
After his release, he and his mother attended upon the Kamesh Police
Station, in order to visit his brother,
E
V
, but were advised
that visiting hours were over. They then attended upon the Police
Station the following day to visit the second
plaintiff. During this
visit,
E
advised
them that the name of the owner of the car was one ‘’Bunny’’.
His mother later recalled who ‘’Bunny’’
was
and where he resided.
[34]
The first plaintiff and his mother later on the same day attended
upon ‘’Bunny’’ at his home in the
area known
as ‘’Gerald Smith’’ in Uitenhage. It was here
that the first plaintiff recognised ‘’Bunny’’
as the person that had been driving the vehicle on the evening in
question. ‘’Bunny’’ was then requested
to
accompany them to the Kamesh Police Station; he declined to go with
them. The first plaintiff and his mother then returned home.
[35]
The first plaintiff then submits that on the morning of the court
appearance, being the 17
th
November 2014, he and his mother collected ‘’Bunny’’
from his home and took him with them to court, where
‘’Bunny’’,
withdrew the charges against him and his fellow plaintiffs.
[36]
Upon cross examination by
Ms
Ntsepe
for the
defendant,
Mr V
agreed that the decision to remove the valuables from the motor
vehicle, including the battery was agreed to by all the plaintiffs.
Mr V
further submitted that he and his brother were acquainted with the
driver of the vehicle on the evening in question, as the driver
was a
friend of his sister’s husband.
[37]
It was then put to
Mr
V
that the driver
of the vehicle, would attend court and deny that he had given
permission to anyone to look after his vehicle.
Mr
V’s
reply was
that he had no comment. Under cross examination,
Mr
V
also denied that
the police officers had at any stage inquired as to how they had
obtained the battery. It was put to him that
this contradicted the
version of
Mr D B
,
who confirmed that the police officers had made such inquiry.
Mr
V
further confirmed
that the second plaintiff had explained to the police officers that
they were safekeeping the battery for a friend.
Mr
V
also conceded
that they were unable to provide the police officials with the name
and address of the owner or driver of the vehicle
that had requested
them to take care of the vehicle.
[38]
Mr V
further conceded under cross examination, that he could not remember
whether he had advised the police official that had taken
down his
warning statement, that he had stated in such statement, that he did
not wish to make a statement and that he would ‘’speak
at
court’’. He further conceded that since he could not
recall, he could not dispute that he had in fact made such
statement.
Mr V
had no comment as to why he did not advise the police official taking
down his statement, that the plaintiffs were innocent, and
had been
merely looking after the property of a friend.
[39]
Mr V
also had no comment when it was put to him that the reason the
charges were withdrawn against the plaintiffs at court, were due
to a
mediated settlement agreement arranged by the state between the owner
of the battery and themselves, and not as a result of
their
innocence, and that they had in fact signed said agreement.
[40] One
Mr Mkhululi
Solomon
a messenger for the Plaintiffs legal representatives
firm, testified regarding circumstances that allegedly prevailed
during the
course of these proceedings. I do not consider
Mr
Solomon’s
evidence germane to the present matter.
Mr
Le Roux on behalf of the Plaintiffs then closed their case.
THE DEFENDANT’S
CASE:
THE EVIDENCE OF MR LEE
WAYNE SIMON:
[41]
Mr Simon
confirmed that he was a resident of the suburb ‘’Gerald
Smith’’ in Uitenhage, and that he knew the two
plaintiffs
that testified, namely
D
B
and
S
V,
by sight, as
they resided in the same encompassing area.
Mr
Simon
denied the
submission that
Mr V
had made, that he was a family friend.
[42]
Mr Simon
testified that on the 14
th
November 2014, he had attended upon a local tavern. He decided to
leave and was on his way home when the vehicle he was driving
ran out
of fuel. He had then left the vehicle at the corner of Maduna and
24
th
Avenue, which is common cause is in Kamesh, Uitenhage and decided to
walk home.
Mr Simon
conceded that he was unsure as to whether the windows of the vehicle
were open or whether he had in fact locked the vehicle when
he
decided to walk home.
[43]
Mr Simon
further confirmed that he had not left anyone to attend to the
vehicle, and specifically denied
Mr
V’s
submission that he had requested
Mr
V
to look after the
vehicle. According to him there were no people in the vicinity of the
area where the vehicle had come to a stop.
He further confirmed that
he and his brother attended to returning to the scene to collect the
vehicle, on the following day being
the 15th November 2014. At the
area where the car had been parked, he was asked by a certain old man
as to whom the owner of the
vehicle was. He replied that he was the
driver of the vehicle.
[44]
He was then advised by the old man that certain young boys had been
arrested regarding the vehicle, and for removing the battery
from the
vehicle. He was advised to attend upon the Kamesh Police Station to
make further enquiries. He attended upon the Kamesh
Police Station,
and confirmed that the battery of the vehicle he had been driving had
indeed been taken.
Mr
Simon
denied giving
the
Plaintiffs
permission to look
after the battery.
[45]
Mr Simon
further confirmed that on the morning of the 17
th
November 2014, he attended upon the Uitenhage magistrate’s
court for the matter, and had signed the mediation agreement as
complainant. He reiterated that he was not interested in court
proceedings and merely wanted the return of the vehicle’s
battery.
[46] Under cross
examination by
Mr Le Roux
for the plaintiffs,
Mr Simon
confirmed he had not laid criminal charges against the plaintiffs nor
was he interested in pursuing the matter in court. He merely
wanted
the return of the vehicle’s battery.
Mr Simon
further
conceded that he was under the influence of alcohol on the evening.
When the vehicle had run out of petrol, he got out
and decided to
walk home as he just wanted to sleep. He knew he could fetch the
vehicle the following day. The balance of
Mr Le Roux’s
cross examination of
Mr Simon
related to an incident preceding
the trial of the matter and as mentioned above, which incident I do
not consider germane to the
issues to be determined upon by this
Court.
THE
EVIDENCE OF CONSTABLE NTSIKILELO ROMAN
:
[47]
Constable Roman
confirmed that he was a member of the South African Police Services
with seven years’ experience. He further confirmed that
on the
14
th
November 2014, he was stationed at the Kamesh Police Station in
Uitenhage, and was on duty with his partner
Constable
Hardy
, patrolling
the Kamesh area. They were in 24
th
Avenue Kamesh, Uitenhage when they came upon a group of males
walking, 1 of the males was carrying an object.
[48]
Constable Roman
testified further that he and his partner approached the group in a
marked police vehicle and when the group had caught sight of
them,
the person carrying the object dropped same, and the group continued
walking. As they approached the group, one of them ran
away. They
then decided to investigate. They stopped the group and advised them
as to the reason for them being questioned.
Constable
Roman
then
questioned the person who had been carrying the object as to what it
was. He was advised by the person, that it was a battery
that he was
keeping safe for a friend. They then went to the point where the
battery had been dropped, and it was confirmed that
the object had
indeed been a battery. He confirms that it was a ‘’Willard
battery’’.
[49]
Constable Roman
testified further that he question the person as to the identity and
the address details of the friend for whom it was alleged
the battery
was being kept safe for. The person could not provide such details.
The group had argued amongst themselves and one
of the four suspects
then was overheard to have said, ‘’
Eke
het jou gese ons moes nie die ding gedoen het nie.’’
The group then took him and his partner to a vehicle that had been
parked in 24
th
avenue, Kamesh, Uitenhage. He identified the vehicle as a Red
Volkswagen.
[50]
Constable Roman
confirmed further that he had contacted his radio control to try and
assist in identifying the owner of the vehicle, however their
computer systems were down, and he was unable to obtain such
information. He requested the group again to provide the details of
the friend that had allegedly given them permission to look after the
vehicle; one of the group submitted that the owner was in
the tavern.
When he requested that they all go to the tavern, the group once
again could not provide details.
Constable
Roman
again
requested the name, address and cellular phone number of the owner of
the vehicle from the group, but yet again received
no reply from
them. He then advised them that as they could not provide the
necessary details, he had no choice but to arrest them.
He explained
the reason for their arrest, as being for being in possession of
suspected stolen property, and he further explained
their
constitutional rights to them.
[51]
Upon receiving personal details of the suspects, he ascertained one
of them, in this regard,
Mr
S V
, was a minor.
He placed
Mr V
in his vehicle being a VW Golf. He summoned another police vehicle to
assist, and the remaining 3 suspects were placed in this
vehicle. The
suspects were taken to the Kamesh Police Station, where they were
formally interviewed, and the docket was administered.
The
administering of the docket comprised the completion of various
documentation, including completion of the suspects warning
statements.
[52]
Constable Roman
further confirmed that as
Mr
V
was a minor, he
was taken to the Uitenhage Police Station, where they had provision
for a cell for minor suspects.
Constable
Roman
further
confirmed that he duly completed the annexure SAP 583(d), attached as
part of Exhibit ‘’B’ ’which
is a document
entitled ‘’
Written
Report on Failure to Notify a Parent, Guardian or Appropriate Adult
of Arrest of Child.’’
He
advised that this was completed as he had unsuccessfully attempted to
contact
Mr V’s
parent at the given address of 41 Penguin Street, Rosedale,
Uitenhage, this despite having attended upon the given address
personally
with no-one opening the door. He further confirmed that he
was not provided with the telephonic contact details for
Mr
V’s
parent.
[53]
Under cross examination by
Mr
Le Roux
, it was put
to
Constable Roman
that upon apprehending the group of plaintiffs, he should have
interviewed them one at a time.
Constable
Roman
submitted
that the group had begun arguing amongst themselves. He also
confirmed that if the plaintiffs had submitted that they
had provided
a single version explaining their possession of the battery, then
same was a lie.
[54]
It was further established under cross-examination by
Mr
le Roux
, that
Constable Roman
and the police members present on the evening had firstly taken the
plaintiffs to the respective addresses they provided, in order
to
confirm such addresses. Being unable to confirm the addresses, the
plaintiffs were then taken to the Kamesh police station.
Constable
Roman
then made a
further attempt to verify the addresses of the plaintiffs, and on the
second attempt, was largely successful.
[55]
Constable Roman
further confirmed that he was aware that so-called ‘’
police
bail’’
could be granted but that was a decision the assigned investigating
officer in the case would make, and not himself.
[56]
Upon re-examination by
Ms
Ntsepe, Constable Roman
confirmed that he had arrested the four plaintiffs for being in
possession of presumably stolen goods. He confirmed that the factors
that informed his decision to arrest the plaintiffs were:
(1) The time the offence
had been committed, being the early hours of the morning;
(2) That a fifth member
of the group had run away;
(3) The person that had
been carrying the battery had dropped same once they had caught sight
of the police;
(4) That the plaintiffs
were unable to provide a reasonable explanation for their possession
of the battery, and that upon being
advised that they were looking
after the battery for a friend, they were unable to provide the name
or address of the friend;
(5) Furthermore, that one
of the plaintiffs in the group had remarked whilst being questioned,
‘’
Ons moes nie die ding gedoen het nie.’’
THE EVIDENCE OF
ZWANDILE MICHAEL MAGAJANA:
[57]
The witness confirmed that he was a sergeant in the South African
Police Services, attached to the detective unit, and had
joined the
force in the year 2002.
[58]
He confirmed that case docket 417/11/2014, being the case docket of
the plaintiffs, had been allocated to him. He confirmed
that he
received the docket on the Saturday morning being the 15
th
November 2014. He also confirmed that he read the docket and noted
that the plaintiffs had been charged for being in possession
of
presumably stolen property and that one of the plaintiffs was a child
(a minor).
[59]
Sergeant Magajana
,
confirmed further that he then attended to confirming the residential
addresses of the plaintiffs. He then set about formally
charging the
plaintiffs. He was aware that he could not charge
Mr
V
, who was a minor
at the time, without a parent being present. He attended upon the
residential address of
Mr
V,
to approach his
parents, but was unable to locate
Mr
V’s
parents
at the address provided. He then returned to the police station, and
charged all four of the plaintiffs as he was unwilling
to delay the
matter any further, as the plaintiffs had to attend court.
[60]
Sergeant Magajana
further confirmed that he then attended upon having the plaintiffs
sign their warning statements, and they all confirmed that they
understood their rights, were unwilling to make any statement
regarding their defence and instead had chosen to ‘’
speak
in court.’’
The plaintiffs in their evidence never denied this.
[61] In cross examination
by
Mr Le Roux
, it was placed to
Sergeant Magajana
that
the offence the plaintiffs had been charged with, was not a serious
offence.
Sergeant Magajana
disputed this submission and
advised that in matters where persons are charged with being in
possession of presumably stolen property,
and in the absence of a
reasonable explanation for being in such possession of such property,
that in his experience, having regard
to the area wherein which the
offence took place being a so-called coloured area, there were many
cases where it was discovered
that a greater crime such as murder or
theft of a motor vehicle had preceded the possession of the
presumably stolen goods.
THE PLAINTIFFS
PLEADINGS:
[62] The Plaintiffs case
in essence is that their arrests were unlawful and consequently their
subsequent detention was also unlawful.
If I find the arrests to have
been lawful then I should give consideration in reviewing the
decision not to grant bail and construe
such decision to be
unreasonable and unlawful in the circumstances.
THE DEFENDANTS
PLEADINGS:
[63] The Defendant’s
case is anchored on two grounds:
(a) That the arrest and
detention of the plaintiffs were not unreasonable and unlawful as it
was effected in terms of Section 40(1)
of the Criminal Procedure Act
51 of 1977;
(b) That the plaintiffs
had been lawfully arrested in terms of Section 36 of the Criminal Law
Amendment Act 61 of 1955.
LEGAL PRINCIPLES
APPLICABLE:
[64] It is trite that the
deprivation of a person’s liberty, such as arrest and detention
at the hands of the police, is
prima facie
unlawful. In
Minister of Justice v Hofmeyr
[1993] ZASCA 40
; 1993(3) SA 131(A)
153 D-E,
the then Appellate Division (per Hoexter JA) held:
‘’
The
plain and fundamental rule is that every individual’s person is
inviolable. In actions for damages for wrongful arrest
or
imprisonment our Courts have adopted the rule that such infractions
are prima facie illegal.’’
[65]
In
Relyant
Trading (Pty) Ltd v Shongwe and another
[2007] 1 All SA 375
(SCA)
(per Malan AJA) held:
‘’
To
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself or someone acting as his agent
or
employee, deprived him of his liberty.’’
[66] Further, in
Minister
of Law and Order and Others v Hurley and Another 1986(3) SA 568 (A)
the Court at 589D-E, (per Rabie CJ)
stated as follows:
‘’
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person
should bear the onus of proving that his action
was justified in
law.’’
[67]
In the present matter before me, it was somewhat strange that the
parties had agreed at the outset that the onus to begin fell
on the
plaintiffs. This however can in no way divest the defendant of its
onus as set out in the plethora of cases of similar ilk.
[68]
The Defendant’s defence to the allegations is two-fold. The
Defendant firstly submits that in terms of
Section 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
, the police officer who effected
the arrest of the plaintiffs, were acting within the ambit of this
particular section.
[69]
Section 40(1)
(a) if
Act 51 of 1977 provides:
‘’
(1)
A peace officer may without warrant arrest any person-
(a)
Who commits or attempts to commit
any offence in his presence;
(b)
…
..’’
[70]
The reasonable suspicion requirement in Section 40(1) was dealt with
by Jones J in
Mabona
and Another v Minister of Law and Order and Others 1988(2) SA 654
(SE) at 685E-G,
where the learned Judge stated in essence that the test as to whether
an arresting officer held a reasonable suspicion is an objective
one.
He also stressed that in this enquiry, it had to be borne in mind
that what is required is suspicion, not certainty, albeit
that the
suspicion must be based on solid grounds. This principle was also
affirmed in
Raduvha
v Minister of Safety and Security and Another [2016] ZACC para 40-44.
[71]
The Defendant further relies upon Section 36 of the Criminal Law
Amendment Act 61 of 1955, which states:
‘’
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 one of the Stock Theft Act 57 of 1959, in regard
to which there is a reasonable suspicion 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.’’
EVALUATION OF THE
EVIDENCE:
[
72]
Having regard to the evidence as a whole, it is trite that there are
two mutually destructive version of events.
[73] In having regard to
the version of the plaintiffs,
Mr B
and
Mr V
, the
following issues arise:
(a)
The plaintiffs
inexplicably were unable to provide
Constable
Roman
and his
partner at the scene, with the name and address of the driver of the
vehicle. This despite the fact that
Mr
V
submitted that he
and his brother were aware of the identity of the driver of the
vehicle as one ‘’Bunny’’,
and that he was a
friend of their sister’s husband;
(b)
Having been unable to
provide the police officers at the scene with the necessary identity
and address details of the driver of
the vehicle, how were the
plaintiffs going to return the battery to the driver of the vehicle?
(c)
The plaintiffs
submissions that they had decided to look after the vehicle of a
person whom they did not know, and had in fact,
on their own version
of events had looked after the vehicle for hours before deciding to
remove the valuables from the vehicle
for safe-keeping, is
improbable;
(d)
Furthermore counsel for
the plaintiffs failed to put to
Constable
Roman
that the
plaintiff person carrying the battery on the evening in question, had
never dropped the battery as alleged by
Constable
Roman
. This to my
mind is essential as it elucidates the
animus
of the plaintiffs.
Had their actions been
bona
fide
, there would
have been no reason to drop the battery upon sighting the police
officers;
(e)
On cross-examination by
Ms Ntsepe
,
as to
Constable
Roman’s
submission that one of the plaintiffs had exclaimed ‘’
Ons
moes nie die ding gedoen het nie,’’
Mr V
instead of disputing same curiously remarked that he had no comment;
(f)
Furthermore, pursuant
to their arrest and detention, at no stage do the plaintiffs provide
Sergeant Magajana
with the details of the driver of the vehicle, being
Mr
Simon
. It was in
fact never even put to
Mr
Simon
, by counsel
for the plaintiffs that
Mr
Simon
was indeed
the ‘’Bunny’’ that
Mr
V
had been
referring to;
(g)
The plaintiff further
failed to provide
Mr
Magajana
with their
version of events regarding their purported innocent possession of
the battery, and chose to state in their warning
statements that they
would ‘’speak in court’’. No reasonable
explanation is provided for this. On cross-examination
of
Mr
V
by
Ms
Ntsepe
for the
defendant,
Mr V
conceded that as he could not dispute that he did in fact advise the
police official that he would speak in court;
(h)
At their first
appearance at court, it is not disputed that the plaintiffs had
entered into a mediation agreement with the State
and
Mr
Simon,
being the
driver of the vehicle, to the extent that the charges against them
would be withdrawn upon the return of the vehicle’s
battery to
Mr Simon
.
At no stage did any of the plaintiffs protest their innocence to the
State, and willingly entered into the mediation agreement;
(i)
In terms of the
mediation agreement, it is trite that the agreement stated that the
owner of the battery did not give any persons
permission for the
battery to be removed. This was agreed to and signed by the
plaintiffs. In cross examination,
Mr
B,
confirmed that
he agreed to the above assertion as being correct;
(j)
The mediation agreement
is destructive to the version of events as postulated by the
plaintiffs.
[74]
Both plaintiffs called to testify, namely
Mr
B
and
Mr
V
, failed to
impress me as credible witnesses. Their version of events is simply
improbable in the light of the above issues.
Mr
B
conceded under
cross-examination that it would indeed look suspicious to the police
that they were unable to provide the relevant
details of the driver
of the vehicle to them. Furthermore the time that they were
approached by the police being 01h10, would also
give rise to
suspicion, to which he agreed to.
[75]
Mr V’s
evidence was interspersed with submissions that he simply had no
comment to certain submissions being put to him by counsel for
the
defendant. A case in point being when
Ms
Ntsepe
put to him
that the police officer would testify that he overheard one of the
plaintiffs remark at the scene of the offence, ‘’
Ons
moes nie die ding gedoen het nie,’’
Mr V
submitted he had ‘’no comment.’’
[76]
Having regard to the evidence on behalf of the defendant, firstly
that of
Constable
Roman.
His evidence
related to the actual arrest of the plaintiffs. I found his evidence
to be clear and concise regarding his suspicions
of the plaintiffs on
the evening in question. His evidence was never disputed to the
extent that his suspicions regarding the plaintiffs
were unreasonable
and unjust. The only issue raised by
Mr
Le Roux
for the
plaintiffs was the fact that it only emerged under cross examination
that the plaintiffs were first taken to their respective
home
addresses to confirm same, before being taken to the Kamesh Police
Station. This
Constable
Roman
explained
that at times the chronology of events is out of order. His evidence
was never contradicted in any form.
[77]
Sergeant Magajana’s
evidence related to the plaintiffs’ detention in the police
cells until their appearance at court on the Monday the 17
th
November 2014. It is common cause that
Mr
V,
the first
plaintiff was released on warning and into the care of his mother on
the Saturday, the 15
th
November 2014.
Mr Le
Roux
in his closing
argument inveigled me to view
Sergeant
Magajana’s
evidence as being poor and the basis for such submission was that
Sergeant
Magajana’s
reasoning for not releasing the plaintiff’s on police bail was
irrational and based on generalizations of the area and the
occupants
of such area. I do not hold with this submission.
[78]
It was not disputed that
Sergeant
Magajana
was an
experienced police officer with numerous years of experience. His
explanation for not releasing persons arrested for being
in
possession of presumably stolen goods is reasonable. According to his
understanding of Section 36 offences, once a person has
been arrested
in terms of the section, and has failed to provide a reasonable
explanation for being in such possession, the act
states that person
‘’shall be guilty of an offence..’’, having
regard to this, as well as the fact that
in his experience Section 36
offences are more often than not coupled with more serious offences
preceding the actual possession
of the goods, he does not grant
police bail or release accused persons on warning for such offences.
He would not oppose bail but
would rather the public prosecutor make
such decision to release the accused persons on bail or not. I do not
find this rationál
to be unreasonable.
[79] While certain
aspersions may be cast on
Mr Simon’s
evidence due to his
state of inebriation at the time of the incident, when cognizance is
had to the evidence as a whole, his submission,
that he gave no-one
permission to look after the vehicle or to remove the battery of the
vehicle is corroborated by the uncontroverted
evidence of the
mediation agreement.
Mr Simon
readily made concessions due to
his state of inebriation and confirmed that he was not interested in
pursuing criminal charges;
he merely wanted the vehicle’s
battery back.
Mr Simon
had no reason to contrive his evidence
and I accordingly accept same to the extent that he had not requested
the plaintiffs to
look after his vehicle, nor did he provide them
with permission to remove the battery from the vehicle.
APPLICATION OF THE LAW
TO THE FACTS:
THE ISSUE OF UNLAWFUL
ARREST
[
80]
As stated in the case of
Mabona
above, the test to determine whether an arresting officer’s
suspicion of an accused person/s and subsequent arrest is reasonable,
entails an objective enquiry involving the question whether a
reasonable person in the position of the arresting officer and
possessed
of the same information would have considered that there
were good and sufficient grounds for suspecting that the person to be
arrested was guilty of the alleged offence.
[81] Having regard to the
facts set out above and by the first and third plaintiffs own
concessions that their conduct on the evening
in question could be
construed as being suspicious, there is only one reasonable
conclusion that can be drawn, and that is that
Constable Roman’s
suspicion of the plaintiffs on the evening in question was
reasonable, and that he had properly applied his discretion to arrest
the plaintiffs in the circumstances. I accordingly find that the
plaintiffs arrest to have been lawful.
THE ISSUE OF UNLAWFUL
DETENTION
[82]
Having determined the arrest of the plaintiffs to have been lawful,
the Court must now consider whether the first plaintiff’s
detention until his release into the care of his mother a few hours
after his arrest to have been unreasonable, and whether the
continued
arrest of the remainder of the plaintiffs until their release from
the Uitenhage magistrate’s court on the Monday
morning of the
17
th
November 2014, was unreasonable.
[83]
In determining this issue the evidence of
Sergeant
Magajana
, becomes
integral to such determination.
Sergeant
Magajana
confirmed
that in matters where an accused person has been arrested in terms of
Section 36 of Act 62 of 1955, due to the fact that
the possibility
exists that the possession of the presumably stolen property could be
an extension of a greater crime, he does
not grant so-called ‘’
police
bail’’
,
or release such accused on warning, and would rather have the public
prosecutor make such decision.
[84]
Section 59(1)
(a) of
the
Criminal Procedure Act 51 of 1977
provides:
‘’
An
accused who is in custody in respect of any offence, other than an
offence referred to in
Part II
of
Part III
of Schedule 2
may
(
my emphasis
),
before his or her first appearance in a lower court, be released on
bail in respect of such offence by any police official of
or above
the rank of non-commissioned officer, in consultation with the police
official charged with the investigation, if the
accused deposits at
the police station the sum of money determined by such police
official.’’
[85]
From the above it is clear that the
investigating officer in a matter has a discretion as to whether to
release an accused before
his first appearance at a lower court.
[86] In
Shidiack v
Union Government
1912 AD 642
at 651-652
, Innes ACJ held:
‘’
Now
it is settled law that where a matter is left to the discretion or
the determination of a public officer, and where his discretion
has
been bona fide exercised or his judgment bona fide expressed, the
Court will not interfere with the result. Not being a judicial
functionary no appeal or review in the ordinary sense would lie; and
if he has duly and honestly applied himself to the question
which has
been left to his discretion, it is impossible for a Court of Law
either to make him change his mind or to substitute
its conclusion
for his own…There are circumstances in which interference
would be possible and right. If for instance such
an officer had
acted mala fide or from ulterior 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 or wrong.’’
[87]
The above principles have been confirmed by our Courts.
[1]
[88]
Applying the above principles to the facts, I cannot find that
Sergeant Magajana’s
decision in not granting so-called ‘’
police
bail’’
to be capricious or
mala
fide
in any way,
nor could counsel for the Plaintiffs evince any evidence of an
ulterior motive on the part of
Sergeant
Magajana
in not
releasing the second, third and fourth plaintiffs before their court
appearance on the Monday morning. Regarding the first
plaintiff,
Mr
V
who was a minor
at the time, it is apposite that he was released a few hours after
his arrest once
Sergeant
Magajana
had
managed to contact his parent.
[89]
In the circumstances I cannot find the detention of the plaintiffs to
have been unlawful.
[90]
Regarding
Ms
Ntsepe’s
issue of
locus
standi
in respect
of the second and fourth plaintiffs that did not testify, I do not
deem it necessary to make a determination on this
issue in view of my
findings.
[91] In the premises I
make the following order:
(i)
The Plaintiffs claims
are dismissed with costs.
__________________________
V NAIDU
ACTING JUDGE OF THE HIGH
COURT
Appearances:
For Plaintiff: Adv le
Roux instructed by Lessing Heyns Keyter & Van der Bank Inc, Port
Elizabeth
For Defendant: Adv Ntsepe
instructed by the State Attorney, Port Elizabeth
[1]
Groenewald
v Minister van Justisie 1973(3) SA 877 (A); Ulde v Minister of Home
Affairs and Another 2009(4) SA 522 (SCA) para 7