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[2018] ZAECPEHC 64
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Vaaltyn and Others v Minister of Police (481/2016) [2018] ZAECPEHC 64 (18 September 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:
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 [….].
[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:
(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