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[2018] ZAECPEHC 63
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Vaaltyn and Others v Minister of Police (481/2016) [2018] ZAECPEHC 63; [2018] 4 All SA 534 (ECP) (18 September 2018)
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:
SHANLEY
VAALTYN FIRST
PLAINTIFF
ELZITANIO
LUIGI VAALTYN
SECOND PLAINTIFF
DANAVIAN
BAARTMAN
THIRD
PLAINTIFF
MAURICE
LIBALOUW DECEMBER
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- DANAVIAN BAARTMAN:
[7]
The Third Plaintiff,
Mr
Danavian Baartman
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 Baartman
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
Baartman
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
Baartman
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
Baartman
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
Baartman
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
Baartman
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
Baartman
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
Baartman
denied
this and confirmed that only a single version had been conveyed to
the police officers.
[19]
Mr
Baartman
further
confirmed that when the police officers had requested details as to
the identity of the owner of the vehicle, the second
plaintiff,
Elizitanio
Vaaltyn
,
the brother of the first plaintiff gave the nickname of the owner to
the police.
Mr
Baartman
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
Baartman
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
Baartman
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 Baartman
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- SHANLEY VAALTYN
:
[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,
Elizitanio
and Diego
,
at 41 Penguin Street, Rosedale, Uitenhage.
[24]
The first plaintiff submitted that on the evening of his arrest, he
and his brother
Elizitanio
Vaaltyn
,
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
Maurice
December.
Maurice
December
opened
the bonnet of the vehicle and the third plaintiff,
Danavian
Baartman
,
removing the battery. The third plaintiff then handed the battery to
Elizitanio
Vaaltyn
,
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
Vaaltyn
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
Vaaltyn
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,
Elizitanio
Vaaltyn
,
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,
Elizitanio
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
Vaaltyn
agreed
that the decision to remove the valuables from the motor vehicle,
including the battery was agreed to by all the plaintiffs.
Mr
Vaaltyn
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
Vaaltyn
that
the driver of the vehicle, would attend court and deny that he had
given permission to anyone to look after his vehicle.
Mr
Vaaltyn’s
reply
was that he had no comment. Under cross examination,
Mr
Vaaltyn
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
Danavian Baartman
,
who confirmed that the police officers had made such inquiry.
Mr
Vaaltyn
further
confirmed that the second plaintiff had explained to the police
officers that they were safekeeping the battery for a friend.
Mr
Vaaltyn
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
Vaaltyn
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
Vaaltyn
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
Vaaltyn
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
Danavian
Baartman
and
Shanley
Vaaltyn,
by
sight, as they resided in the same encompassing area.
Mr
Simon
denied
the submission that
Mr
Vaaltyn
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
Vaaltyn’s
submission
that he had requested
Mr
Vaaltyn
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
Shanley Vaaltyn
,
was a minor. He placed
Mr
Vaaltyn
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
Vaaltyn
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
Vaaltyn’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
Vaaltyn’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
Vaaltyn
,
who was a minor at the time, without a parent being present. He
attended upon the residential address of
Mr
Vaaltyn,
to
approach his parents, but was unable to locate
Mr
Vaaltyn’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 Baartman
and
Mr Vaaltyn
,
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
Vaaltyn
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
Vaaltyn
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
Vaaltyn
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
Vaaltyn
by
Ms
Ntsepe
for
the defendant,
Mr
Vaaltyn
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
Baartman,
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
Baartman
and
Mr
Vaaltyn
,
failed to impress me as credible witnesses. Their version of events
is simply improbable in the light of the above issues.
Mr
Baartman
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
Vaaltyn’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
Vaaltyn
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
Vaaltyn,
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
Vaaltyn
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:
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