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[2021] ZAECPEHC 15
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Stuurman v Minister of Police and Another (1836/2019) [2021] ZAECPEHC 15 (9 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case No.: 1836/2019
Date Heard: 25-27 January
2021
Date Delivered: 9 March
2021
In the matter between:
MARIO
STUURMAN
Plaintiff
and
THE
MINISTER OF POLICE
First
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Defendant
JUDGMENT
POTGIETER AJ:
[1]
The plaintiff has instituted action
against the Minister of Police, being the first defendant, and the
National Director of Public
Prosecutions (“NDPP”), being
the second defendant, for damages in the sum of R50 000 in respect of
unlawful arrest
and detention during the period 28-29 June 2018
against the first defendant only (claim 1) and R750 000 in respect of
unlawful
detention during the period 29 June 2018 to 6 December 2018
against both defendants (claim 2).
[2]
The action is defended by both of the
defendants.
[3]
The claim arose from the arrest
without a warrant of the plaintiff, together with a relative Bramwill
Stuurman, on charges of dealing
in and the possession of drugs, as
well as an illegal firearm and ammunition on 28 June 2018 at 604
Slinger Street, Arcadia, Humansdorp.
The material common cause
facts can be briefly set out as follows. The plaintiff was
detained for approximately 20 minutes
at the Humansdorp Police cells
immediately after his arrest and was then transferred to the
Jeffrey’s Bay Police cells where
he was held overnight and
taken to the Humansdorp Magistrate’s Court where he appeared on
29 June 2018. The plaintiff
was remanded in custody at St
Albans Prison until 6 July 2018 to enable him to obtain legal
representation. He was represented
by a Legal Aid attorney on 6
July 2018 and the matter was postponed to 11 July 2018 for a formal
bail application. The Legal
Aid attorney withdrew on 11 July
2018 and plaintiff’s new attorney arranged for a formal bail
application to be heard on
16 July 2018. On the latter date the
bail application was proceeded with. The plaintiff deposed to
an affidavit in
support of the application and the investigating
officer, Warrant Officer Hofman deposed to an affidavit opposing the
granting
of bail. The matter was fully argued and the
magistrate gave judgment on the same day refusing bail. There
was no appeal
against the refusal of bail or a renewal of the bail
application. The matter was postponed in the Humansdorp
District Court
on a few occasions and was subsequently transferred to
the Humansdorp Regional Court on 8 October 2018 and postponed to 26
October
2018. The plaintiff remained in custody at St Albans
Prison until the matter was finalised on 6 December 2018 when
Bramwill
Stuurman (accused no. 1) pleaded guilty on count 2 being in
possession of drugs and count 1 (possession of an unlicensed firearm)
was withdrawn against him. Both charges were withdrawn against
the plaintiff and he was released from custody.
[4]
While two special pleas were raised
with regard to statutory notice of the action, these were not pursued
and the matter proceeded
in respect of both the merits and the
quantum at the trial. The arrest of the plaintiff without a
warrant and his subsequent
detention were admitted by both the
defendants in the plea, but the unlawfulness thereof was disputed.
[5]
The police relied upon the provisions
of sections 40(1)(a), 40(1)(b), alternatively 40(1)(h) of the
Criminal Procedure
Act, 51 of 1977
(“CPA”)
as justification for the arrest and initial detention of the
plaintiff until 29 June 2018. They pleaded
that the subsequent
detention was lawfully ordered by the presiding magistrate over whose
actions they had no control and for which
they cannot be held
liable. The police specifically denied that there was any
causative nexus between any alleged unlawful
conduct on their part
and the subsequent judicial detention of the plaintiff.
[6]
The defence pleaded by the NDPP
largely coincided with the defence of the police. In addition,
it was denied that the NDPP
breached any duty it had or that it acted
in any of the improper ways as pleaded in the Particulars of Claim,
in dealing with the
prosecution of the plaintiff from his first
appearance on 29 June 2018 until the matter was finalised on 6
December 2018.
The specific grounds relied upon by the
plaintiff in this regard more fully appear from paragraphs 13 and 14
of the particulars
of claim and are,
inter
alia
, based on the
averment that the relevant prosecutors failed to acquaint themselves
with the contents of the police docket and determine
that there was
no justification for the continued detention of the plaintiff, failed
timeously to withdraw the charges and ensure
the plaintiff’s
release or to inform the magistrate that there were no facts
implicating the plaintiff together with related
alleged breaches of
these pleaded legal duties.
[7]
The plaintiff testified and called no
witnesses. Warrant Officer Frank Jantjies, the arresting
officer, was the only witness
who testified on behalf of the
defendants. While much of the evidence is not really in
contention there is one matter which
was extensively addressed in
argument and which, on the submission of Mr Swarts who appeared on
behalf of the plaintiff, was the
central issue in the case and was
dispositive of the matter. This related to a dispute concerning
the evidence of Warrant
Officer Jantjies that there were mandrax
tablets lying on a coffee table in the sitting room close to where he
arrested the two
accused. This was denied in his testimony by
the plaintiff. In my view, Mr Swarts attached too much
significance to
this issue more particularly his submission that if
there were no drugs on the coffee table, Warrant Officer Jantjies
could not
have formed a reasonable suspicion that the plaintiff was
either dealing in or was in possession of drugs. (He did not
expressly
concede that the converse would apply if the drugs were in
fact lying on the table, namely that the reasonable suspicion would
then have been established.) He submitted that Warrant Officer
Jantjies was mendacious, had concocted this version to boost
the case
against the plaintiff, that the plaintiff was telling the truth and
that the court should find that there were no mandrax
tablets on the
table and in the result uphold the plaintiff’s case. In
order to determine this issue which resulted
from the mutually
destructive versions of the plaintiff and Warrant Officer Jantjies, I
proceed to deal with the evidence in somewhat
more detail than I
would otherwise have done given my view that the matter is in any
event capable of being decided upon the remaining
uncontentious
evidence without reference to this issue.
[8]
A further issue which requires
attention arose between the parties during the trial and was
canvassed during argument. This
concerned the nature of the
court proceedings when the criminal trial was postponed, especially
at the plaintiff’s first
appearance. Mr Swarts contended
that the proceedings at the first appearance was akin to a “
reception
court
”
which
resulted in a violation of the plaintiff’s fundamental rights
for which both the defendants are liable. This issue
is
pertinent to claim 2, namely damages for unlawful detention from the
first court appearance on 29 June 2018 until the charges
were
withdrawn against the plaintiff on 6 December 2018. I proceed
to deal with the evidence presented at the trial.
[9]
The plaintiff testified that the
house at 604 Slinger Street belonged to his aunt, Lorna Grootboom.
The latter is actually
his mother’s cousin. In addition
to the main brick building there is also a corrugated iron
outbuilding on the premises
which is occupied by his cousin Jenovin
Grootboom, the son of Ms Grootboom. On the day of his arrest he
called at the property
because he was busy performing building work
on the outbuilding of Jenovin. He is not a qualified
bricklayer, but his father
taught him how to build. He was
accompanied by his cousin, Bramwill Stuurman, who was to assist him.
[10]
There was insufficient building sand
and Jenovin went to look for transport to buy sand. When
Jenovin left he locked the security
gate on the main entrance to the
outbuilding with padlocks while the plaintiff and Bramwill were
inside the outbuilding.
It was while they were locked inside
waiting for Jenovin that the police arrived and removed the padlocks
on the security gate
with a bolt cutter. The police entered and
searched him and found nothing in his possession. It should be
added that
at a later stage he confirmed that approximately R300 was
in fact found in his pocket by a detective who placed the money back
into his pocket. He was searched again at the police station
and the money was confiscated. It was maintenance money
for his
child. Bramwill was also searched and the police found a
matchbox in his pocket containing 10 mandrax halves (this
being
mandrax tablets that were cut in half). They were both
immediately handcuffed. The police proceeded to search
the
structure and found various items of drugs and dagga as well as a
firearm. He heard the police saying “Bingo”
when
these items were found and he asked what game was being played.
One of the police officers, Lee-André Msinga
came out of
Jenovin’s bedroom with the firearm. Plaintiff protested
with the Captain that Msinga was handling the firearm
without
gloves. I revert to this aspect when I deal with the evidence
of Warrant Officer Jantjies who indicated that he had
found and
handled the firearm on the scene and not Msinga. I should also
add that according to the search warrant at pages
13-14 of the police
docket (exhibit “A”), five officers including Constable
Lee-André Ketteldas (not Msinga)
and Warrant Officer Jantjies,
were authorised to assist Captain Wagenaar to execute the warrant.
There was no Msinga amongst
the officers identified in the search
warrant. In response to one of the police officers who informed
him, as he was being
led to the police van, that he would be charged
he remarked that the officer was mad in his head (“mal in sy
kop”).
Both he and Bramwill were placed in the police van
and transferred to the Humansdorp Police cells where they were kept
for approximately
20 minutes in a dirty cell and were transferred to
the Jeffrey’s Bay Police cells which were cleaner. He
refused to
sign a notice of rights form and informed the police that
he knew nothing about drugs and refused to sign for things he did not
know about.
[11]
He indicated to the court that
Jenovin locked them inside the outbuilding because he did not want
the plaintiff to be able to go
outside and to start drinking because
Jenovin knew if he starts drinking he does not stop. This
explanation should be seen
in the light of the undisputed evidence of
Warrant Officer Jantjies (dealt with below) that there are three
entrances to the structure,
namely the locked main entrance, a door
leading to the main house akin to a back door/kitchen door, and
another door leading to
the tap.
[12]
Plaintiff further testified that the
next morning, 29 June 2018 he and Bramwill were transported from
Jeffrey’s Bay to the
Humansdorp Magistrate’s Court where
they were detained in the court holding cells and then taken to
court. They were
approximately five or six persons in the
dock. When their case was called he and Bramwill stood up while
the other persons
in the dock remained seated. The magistrate
just said that there was a postponement for 7 days to 6 July 2018 for
legal representation
and that they will remain in custody. The
other persons in the dock then appeared and the magistrate told them
the same things.
[13]
The prosecutor did not tell the
magistrate where the drugs were found or that no firearm was found on
him. He was detained
at St Albans Medium A Prison until his
next court appearance.
[14]
They appeared on 6 July 2018 and
again no information was provided to the magistrate about the
whereabouts of the drugs or firearm.
The matter was postponed
to 11 July 2018 and again to 16 July 2018 when the formal bail
application was heard by the magistrate.
He deposed to an
affidavit for purposes of the bail application. They were
represented by Ms Barnard at the bail hearing.
The magistrate
refused bail. Ms Barnard later withdrew as their attorney on 10
September 2018.
[15]
After each remand he was detained at
St Albans Prison under very adverse conditions. He was not
aware of the drugs and firearm
that were found by the police and he
did not live at the place where the items were found. He was
humiliated by his arrest
because members of the public took
photographs while he was being arrested and published them on social
media.
[16]
Under cross-examination he confirmed
that he was acquainted with the arresting officer, Warrant Officer
Jantjies and that there
was no bad blood between them. He had
three previous convictions, namely two for assault and the remaining
one for possession
of drugs and he was disqualified to own a
firearm. He contended that his arrest was unlawful because
neither the drugs nor
the firearm was found in his possession.
These items were found in the outbuilding. No money was found
in the outbuilding.
At the time of their arrest he and Bramwill
were the only people in the outbuilding. He denied that they
were in charge of
the outbuilding when they were arrested. He
surprisingly indicated presumably to support his contention that they
were not
in charge of the outbuilding, that he would have done
nothing to stop a stranger from entering the outbuilding and taking
Jenovin’s
possessions.
[17]
The police found him in the lounge
and he stayed there throughout the period that the police searched
the structure. When
the police arrived the burglar gate at the
main entrance was locked but the door was standing open.
Jenovin had earlier locked
the burglar gate and left to look for
transport to buy building sand. He denied that he or Bramwill
locked the security gate
when the police arrived and indicated that
the police came running to the door with a bolt cutter and removed
the padlocks from
the gate. The police ordered them to sit
still. He denied that the police had to use a bolt cutter
because he and Bramwill
refused to open. He indicated that they
could not open the gate which resulted in the police using the bolt
cutter.
There was a table in the lounge where they were but
there was nothing on the table. He specifically denied that
there were
drugs on the table. The police found drugs in the
bedroom. He told the police that he did not live there and was
waiting
for the owner and that he was busy with building work at the
property. This was the truth which he believed would save him
from arrest and he had no problem to disclose this to the police.
When he was confronted with his warning statement to the
investigating officer in which he gave no version and stated that he
would speak in court, he said that he did this because the
police had
no reason to arrest him. When it was put to him that the
arresting officer denied that he said that he was doing
building work
at the property, he said that the arresting officer was not telling
the truth.
[18]
He confirmed that the drugs and
firearm were placed into forensic bags inside the structure.
The dagga, mandrax, tik and the
firearm were each placed into a
separate bag. He expressed the view that a somewhat obscure
photocopied photograph at page
127 of the police docket (exhibit
“A”), depicted the bare hands of officer Msinga holding a
firearm and a magazine.
When it was put to him that the firearm
was recovered by Warrant Officer Jantjies and that the latter was
wearing gloves when handling
the firearm, he responded that the
person on the photograph referred to above, was not wearing gloves.
It should be indicated
that it is well-nigh impossible for me to
discern whether the person on the photograph was wearing gloves or
not given the extremely
poor quality of the black and white
photocopy. This issue was, however, clarified in the evidence
of Warrant Officer Jantjies
who identified the photograph and
confirmed that it depicted him holding the firearm and magazine and
that he was wearing gloves
at the time.
[19]
When confronted with his evidence
that no money was found inside the outbuilding he indicated that the
money was found on him.
As pointed out, he had testified that a
detective found approximately R300 in his pocket and placed it back
into his pocket.
He was searched again at the police station
and the money was confiscated. In this regard Warrant Officer
Jantjies testified
that he and Constable Ketteldas were the only
officers in civilian clothes while the rest of the officers were in
full uniform.
It is a known fact that detectives are dressed in
civilian clothing, and not in uniform, when they are on duty.
Warrant Officer
Jantjies in fact indicated that he searched both the
plaintiff and Bramwill inside the outbuilding and that he found money
in the
plaintiff’s pocket which he confiscated. It is not
in contention that R570 in total was confiscated. In this
regard the photograph at page 117 of the police docket (exhibit “A”),
depicts a matchbox, tablets, notes and coins.
Warrant Officer
Jantjies testified that all the photographs were taken inside the
outbuilding. There can be no doubt in the
circumstances that it
was Warrant Officer Jantjies that searched the plaintiff and found
the money in his pocket. It was
most likely the fact that he
was dressed in civilian clothes that led to the plaintiff referring
to the officer that searched him
as a detective.
[20]
It was put to him that the first time
the police became aware of his version that he was at the property in
question in order to
do building work, was when he filed his bail
affidavit at the bail hearing on 16 July 2018. Paragraph 22 of
the affidavit
stated as follows:
“
I
intend pleading
NOT
guilty
to the charge against me. I do not wish to disclose the basis
of my defence at this stage and will do so at the trial.
I have
been in custody since 28
th
June
2018. I also want to submit that the state does not have a
strong case against me as on the date of the alleged incident
I was
at my aunt’s home assisting them with building of which (sic)
extension of their house. The police arrived on
the scene
handcuffed me while I was outside the house. After they
handcuffed me they want to search my aunt’s house
and my
cousin’s room. They found the drugs and gun in my
cousin’s room while I was handcuffed outside.
The said
property does not belong to me and the drugs and gun was found in my
cousin’s room. I had no control over
the said property
and it does not belong to me.”
[21]
The plaintiff responded that upon
their arrest, the police asked him what he was doing at the property
and he gave the same explanation
to them. It was further put to
him that after the police became aware of the above version in the
bail affidavit they approached
Ms Lorna Grootboom, the owner of the
property and took a statement from her which appeared at page 43 of
the police docket.
He could not explain why Ms Grootboom
indicated in her statement that she had no builders on her property
and that she did not
know the persons who were arrested at the
property.
[22]
He stated that he was certain what
happened at his first appearance. The magistrate just said that
the case was postponed
for 7 days for legal representation and they
were told to stand down. He was referred to the form appearing
at page 12 of
the bail proceedings (exhibit “B”) that
recorded what transpired at the first appearance on 29 June 2018.
The
form indicates that when their right to legal representation was
explained, the plaintiff, being accused no. 2 indicated that he
wanted his own attorney, while Bramwill indicated that he wanted to
apply for a Legal Aid attorney. The matter then stood
down for
the latter application. When the matter resumed a Legal Aid
attorney, Ms van Wyk appeared for Bramwill who was accused
no. 1.
The magistrate’s notes indicated as far as they are legible, in
respect of the plaintiff as follows:
“
L
Swarts is prok. 2: dui so aan”.
[23]
It appears from the note that the
plaintiff was conveying the details of his attorney to the
magistrate. The form furthermore
indicated that the right of
the accused to apply for bail in terms of
section 60
of the
Criminal
Procedure Act was
explained and they both elected to bring a bail
application. The matter was postponed to 6 July 2018 for a
formal bail application
and the accused were remanded in custody.
It is common cause that the plaintiff was charged with a Schedule 5
offence and
that the provisions of
section 60(11)(b)
of the
Criminal
Procedure Act applied
which obliged the plaintiff to be detained in
custody unless he adduced evidence that satisfied the court that
there were exceptional
circumstances permitting his release in the
interests of justice. In response to what had been recorded on
the form by the
magistrate, the plaintiff indicated that he does not
know a Ms van Wyk and that he and Bramwill always had the same
attorney.
He confirmed that the right to apply for bail was
explained to them and that they elected to bring a bail application
and were
remanded in custody until 6 July 2018.
[24]
The plaintiff confirmed that at his
first appearance the docket contained the statement by the arresting
officer, Warrant Officer
Jantjies (A1), the search warrant for the
property together with supporting statements from an officer of the
crime Intelligence
Unit and a police informer confirming that drugs
were sold at the property by Jenovin who made use of two runners
(A2), the notice
of constitutional rights form in respect of the
plaintiff which he refused to sign (A4), the plaintiff’s
warning statement
containing no version and indicating that he will
speak in court (A6), the SAP13 register listing all confiscated
items/exhibits
(A7) and the enquiry on firearm status indicating that
the confiscated firearm was licenced to a Mr Ngalavu of Queenstown.
Plaintiff also confirmed that none of these items exonerated him.
[25]
The record of the remands contained
in exhibit “B” indicates that an attorney, Mr Hofmann
(presumably from Legal Aid)
appeared on behalf of the accused on 6
July 2018 and was standing in for another attorney and that the
matter was on that occasion
postponed to 11 July 2018 for a formal
bail application. On 11 July 2018 the Legal Aid attorney who
appeared on that occasion
(the name is illegible) withdrew because
the accused had appointed a private attorney, Ms Barnard who was
present at court.
After the matter stood down, it was postponed
to 16 July 2018 for a formal bail application. This was
confirmed by Ms Barnard.
Both the accused were remanded in
custody. The plaintiff confirmed that the formal bail
application that was brought on 16
July 2018 was refused. He
was represented at the time by Ms Barnard.
[26]
In re-examination the plaintiff
stated that no keys to the property where he was arrested, were found
in his possession. He
could not move in or out of the
outbuilding because Jenovin had locked the security gate. The
detective had placed the money
back into his pocket after he was
searched inside the outbuilding. The firearm was found in
Jenovin’s bedroom.
He was doing building work for Jenovin
and was never identified as a runner nor was he aware that Jenovin
was the primary dealer.
In response to a question from the
court, the plaintiff confirmed that drugs were being sold at the
property. I proceed to
deal with the testimony of Warrant
Officer Jantjies.
[27]
Warrant Officer Jantjies testified
that he has 23 years’ service in the police. He is
stationed at Humansdorp and is
attached to the Visible Policing
Unit. At the time of the incident in issue in this matter he
was attached to the Crime Prevention
Unit.
[28]
On the morning in question, being 28
June 2018 he was part of a police operation, effectively a drug raid,
under the command of
Captain Wagenaar. He attended a parade
where the officers who participated in the operation were briefed by
Captain Wagenaar
who indicated that there was a search warrant to be
executed at 604 Slinger Street, Arcadia in Humansdorp. The
information
was that drugs were being sold at the premises by Jenovin
Grootboom alias Noeyi who also utilised two runners to sell the
drugs.
He knew the dealer Jenovin, but did not know who the
runners were. The police knew that Jenovin sold drugs at the
premises.
Warrant Officer Jantjies had previously effected
arrests at the premises of people who had bought drugs there.
[29]
There were approximately 8-10
officers involved in the search under the command of Captain
Wagenaar. Only he and Constable
Ketteldas were wearing civilian
clothes.
[30]
The main house on the property is
built with bricks while there was a wooden outbuilding, with its own
entrance attached to the
main house. Upon their arrival Captain
Wagenaar spoke to Ms Lorna Grootboom, the owner of the property and
obtained her permission
to search the premises. He, Constable
Ketteldas, Warrant Officer Meyer and Sergeant Rademeyer then moved
towards the entrance
to the outbuilding. As they approached he
saw people inside the structure. There was a security gate that
was locked
with padlocks and a wooden door that was standing open but
was closed from the inside as they approached. He did not see
who closed the door. He made himself audible and indicated that
he was a police officer, had a search warrant and that the
occupants
should open the door. When there was no response they used a
bolt cutter to remove the padlocks and entered the
structure.
They found the plaintiff and another male (later identified as
Bramwill Stuurman) standing near to a coffee table.
There were
different mandrax tablets on the table. There was also a large
blade that is used to cut mandrax tablets with
on the table. It
entered his mind that the two males were dealing in drugs. He
told them that he had a search warrant
and requested to search them
which they agreed to. They were standing in front of him and he
proceeded to search Bramwill
Stuurman first. He found a
matchbox containing mandrax wrapped in foil in his pocket. He
confiscated the mandrax and
then searched the plaintiff. He
found cash on the plaintiff and confiscated it. A total of R570
was confiscated.
He informed them both of their rights and that
he was arresting them for dealing in drugs. Bramwill did not
respond.
The plaintiff said that he did not know about the
drugs but gave no explanation about the cash. The plaintiff
never alleged
that it was money for maintenance for his child and he
never said that he was busy with building work on the premises.
Warrant
Officer Jantjies saw no construction in progress at the
premises. He also never placed the cash back into the
plaintiff’s
pocket. He handcuffed both of them and
proceeded to search the premises in their presence. There was
only one bedroom,
a type of dining room, no separate kitchen and a
toilet. He searched the whole structure in the presence
of the plaintiff
and Bramwill. He found a firearm with two
rounds on the wardrobe in the bedroom and a packet of tik in another
wardrobe.
He was wearing white gloves and he was holding the
firearm and magazine in his hands on the photograph on page 127 of
the docket.
It was not Warrant Officer Msinga who was holding
the firearm and magazine.
[31]
Constable Ketteldas found loose dagga
in toilet pipes and there were also loose tik straws.
Photographs were taken of the
items inside the structure. These
were the photographs filed in the docket. All the items were
collected and placed
in forensic bags and removed to the police
station together with the two arrestees.
[32]
He issued notices of rights for both
arrestees. Bramwill signed his form, but the plaintiff refused
to sign. He again
gave the plaintiff a full explanation of the
procedure but the plaintiff still refused to sign. He handed
the copy of the
unsigned form to the plaintiff. He placed both
of them in the police cells at Humansdorp and was subsequently
instructed
to transfer them to the police cells at Jeffreys Bay.
He had no further contact with either of them. He found the
explanation
of the plaintiff that he knew nothing about the drugs
unacceptable and did not believe the plaintiff. Given the
circumstances,
it was clear in his view that drugs were being sold at
the premises.
[33]
He confirmed under cross-examination
that he knew that the plaintiff could be detained due to what he had
said in his statement.
He indicated that all the photographs
filed in the police docket were taken by Captain Wagenaar inside the
structure. The
drugs were found in different places inside the
structure. All the items were collected and were confiscated.
[34]
He testified that the padlocks on the
security gate were locked from the inside. In response to
questions from the court,
he indicated that he did not see the locks
physically being locked but it was only the plaintiff and Bramwill
inside the structure.
On further cross-examination he testified
that he heard a noise inside the structure while they were removing
the padlocks with
a bolt cutter. This sounded as if the
occupants were trying to get away. There were three entrances
to the outbuilding,
namely the main entrance where the police
entered, a door leading to the main house akin to a kitchen or back
door and a third
door leading to the tap. The latter door was
standing ajar when they entered the structure. He disagreed
with the proposition
of Mr Swarts that the suggestion made no sense
that the occupants were trying to run away because if they did they
must have returned
given the fact that the police found them in the
lounge near the main entrance. He indicated that the property
was cordoned
off by the police.
[35]
He furthermore confirmed that he made
his statement within a few hours of the arrest when the events were
still fresh in his memory.
When it was put to him that there
was no mention in his statement of the drugs on the coffee table, he
indicated that he made a
mistake and forgot to refer to this.
He agreed that this was an important aspect. It was put to him
that Constable
Ketteldas also did not mention in his statement that
there were mandrax on the coffee table. He responded that this
was what
indeed happened and he just forgot to deal with it in his
statement. He had nothing against the plaintiff who was unknown
to him. He confirmed that there was no photograph of the table
with the drugs in the police docket and indicated that he
did not
take the photographs. All the drugs found inside the premises,
including those found on the coffee table, were confiscated
and
booked in. There was only one table inside the structure.
He denied that dagga was found outside the structure.
[36]
When the plaintiff’s version
was put to him, Warrant Officer Jantjies indicated that the plaintiff
never said that Jenovin
had gone to fetch building sand or that the
plaintiff was doing building work on the premises. There was in
any event no
construction work in progress at the premises. He
confirmed again that the plaintiff said he knew nothing about the
drugs.
He cannot say whether the drugs belonged to Jenovin but
it was found inside the structure which was under the control of the
plaintiff
and Bramwill at the time. To his mind the plaintiff
and Bramwill were the two runners, although they were nowhere
specifically
identified as such. He came to this conclusion on
all the circumstances and it was logical that they must have known
what
was going on at the premises. As indicated, the plaintiff
confirmed that he knew drugs were being sold at the premises.
Warrant Officer Jantjies also denied again that the money that was
found in the plaintiff’s pocket was put back into his
pocket or
that the plaintiff said that it was maintenance money. He did
not know whether the plaintiff was related to Ms
Grootboom, the owner
of the property. He disagreed with the proposition that there
was no basis for a reasonable suspicion
justifying the plaintiff’s
arrest and indicated that he had every right to arrest the plaintiff
under the prevailing circumstances.
[37]
In re-examination he reiterated that
at the briefing session before the raid, they were told that there
were two runners at the
premises. When they found two males
inside the locked premises, one in possession of drugs and the other
of money, he formed
the suspicion that they were the runners.
All the details of the confiscated items were recorded in the SAP13
register at
pages 30-33 of exhibit “A” (the police
docket). A total of 29 items, including the firearm and cash,
were booked
into the SAP13 register.
[38]
Before proceeding to deal with the
two disputed issues, it is necessary to set out the applicable legal
position. It is trite
that the first defendant bears the onus
of justifying the arrest and initial police detention until the
plaintiff appeared in court
on 29 June 2018. This is common
cause between the parties (cf
Mahlangu
and another v Minister of Police
2020
(2) SACR 136
(SCA) para [6] and the authorities collected in footnote
10;
Minister
van Wet en Orde v Matshoba
1990
(1) SA 280
(A) at 284H-I;
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 821A-C;
Minister
of Police v Du Plessis
2014
(1) SACR 217
(SCA) at para [17]).
[39]
Once a lawful arrest is effected it
brings the provisions of section 39(3) of the CPA into play.
The subsection provides that
an arrest has the effect that the
arrested person shall be in lawful custody and shall be detained in
custody until lawfully discharged
or released from custody. The
provisions of section 50(1)(c) of the CPA also become applicable and
allow for the arrestee
to be detained for 48 hours before being
brought to court.
[40]
It is not in contention that the
plaintiff was brought to court within 48 hours of his arrest.
It thus follows that if his
arrest was lawful, his period of police
detention would also be lawful. I now turn to the issue of the
arrest.
[41]
As indicated, the first defendant
relied on the provisions of section 40(1)(a), (b) or (h) of the CPA
as justification for the arrest
of the plaintiff. These
subsections provide as follows:
“
A
peace officer may without a warrant arrest any person-
(a)
who commits or attempts to commit
any offence in his presence;
(b)
whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than the
offence of escaping from lawful
custody;
...
(h)
who is reasonably suspected of committing or having committed an
offence under any law governing
the making, supply, possession or
conveyance of intoxicating liquor or of dependence – producing
drugs or in the possession
or disposal of arms or ammunition”.
[42]
Although sections 40(1)(a) and (h)
were both also raised as justification for the plaintiff’s
arrest, the thrust of the case
and the arguments were directed at
section 40(1)(b) which I now turn to. It is trite that once the
jurisdictional facts set
out in section 40(1)(b) have been satisfied
a peace officer may invoke the powers set out in the section.
The jurisdictional
facts are that (i) the arrestor must be a peace
officer; (ii) the arrestor must entertain a suspicion; (iii)
the suspicion
must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1; and (iv) the suspicion must rest
on reasonable
grounds (
Duncan
v Minister of Law and Order
supra
at 818G-H;
Minister of Safety
and Security v Sekhoto
2011
(5) SA 567
(SCA) at para [6]). It is the requirement that the
suspicion must rest on reasonable grounds that was contested at the
trial.
The remaining requirements were not in real contention.
I will accordingly only consider this requirement with regard to the
arrest. In the process I will also deal with the disputed issue
concerning whether or not there were drugs on the coffee
table.
I turn to this issue next.
[43]
The informative guidelines and
principles in resolving factual disputes set out in
Stellenbosch
Farmers’ Winery Group Ltd v Martell et CIE
2003 (1) SA 11
(SCA) at para [5] are
particularly apposite in deciding the disputed issue concerning the
drugs on the coffee table. The
court indicated that in order to
come to a conclusion on disputed issues findings must be made on (a)
the credibility of the various
factual witnesses; (b) their
reliability; and (c) the probabilities.
[44]
The court in
National
Employees General Insurance Limited v Jaggers
1984
(4) SA 427
(E) at 440D-G held as follows with regard to mutually
destructive versions:
“…
where
the onus rests on the plaintiff as in the present case and where
there are two mutually destructive stories, he can only succeed
if he
satisfies the Court on the preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding
whether that
evidence is true or not the court will weigh up and test the
plaintiff’s allegations against the general probabilities.
The estimate of the credibility of the witness will therefore be
inextricably bound up with a consideration of the probabilities
of
the case and, if the balance of probabilities favours the plaintiff,
then the Court will accept his version as being probably
true.
If, however, the probabilities are evenly balanced in the sense that
they do not favour the plaintiff’s case
any more than they do
the defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied
that his evidence is true
and that the defendant’s version is false.”
[45]
I proceed to evaluate the versions of
the respective witnesses with regard to the drugs on the coffee table
mindful of the approach
set out in the above authorities as well as
the fact that the first defendant bears the onus of justifying the
arrest.
[46]
Warrant Officer Jantjies’ clear
evidence was that there were drugs on the coffee table. This
was part of a quantity
of drugs found in various places inside the
structure. His testimony was consistent in this regard.
He was strenuously
cross-examined by Mr Swarts on this issue but he
never contradicted himself or deviated from his version in any
material respect.
The plaintiff was not known to him and he had
no reason falsely to implicate the plaintiff. He showed no
hostility towards
the plaintiff or an inclination wilfully to
prejudice the plaintiff. His explanations are reasonable in the
circumstances
that it was an oversight on his part not to refer to
the coffee table in his statement and that he cannot account for the
fact
that there was no photograph of the drugs on the coffee table
filed in the police docket. He has made a good impression in
general in the witness box and has not left the impression that he
was prepared to deliberately tell an untruth to prejudice the
plaintiff’s case. He had no personal interest in the case
and he did not stand to lose anything should the plaintiff
be
successful in his damages claim. His version that there were
drugs and a blade that is used to cut mandrax tablets lying
on the
table, is supported by the fact, which is common cause, that drugs
were being sold at the premises. The police confiscated
a
number of mandrax halves, some in the pocket of Bramwill, inside the
structure. There were also quarter mandrax tablets
confiscated
which probably point towards the form in which the mandrax tablets
were being sold either as quarter or half or full
tablets obviously
at differing prices. It is probable in the circumstances that
the table was being used to cut up the mandrax
tablets.
[47]
The version of Warrant Officer
Jantjies that there were drugs on the coffee table accordingly in my
view coincide with the probabilities.
The plaintiff on the
other hand did not make a favourable impression as a witness.
His version is unsatisfactory in various
respects. He attempted
to show that his presence at the property was for innocent purposes.
His version that he came
to do building work at the property is
contradicted by both Ms Lorna Grootboom, the owner of the property as
well as Warrant Officer
Jantjies. Ms Grootboom indicated in her
police statement that there were no builders at the property while
Warrant Officer
Jantjies testified that he saw no building work in
progress at the property. On the plaintiff’s version he
was already
engaged in the building work prior to the day of his
arrest. It entailed replacing the corrugated outline of the
structure
with brick and mortar. I have no hesitation in
accepting Warrant Officer Jantjies’ version that there was no
evidence
of such construction taking place at the premises. I
also reject the plaintiff’s version that he had informed the
police
on the scene that he was on the premises in order to do
building work there. I accept Warrant Officer Jantjies’
version
that the first time the police learned about the plaintiff’s
allegation that he was engaged in building work on the premises
was
when the plaintiff filed his affidavit in the bail application.
This is supported by the fact that a statement was taken
from Ms
Lorna Grootboom shortly after this affidavit was filed by the
plaintiff. It is inconceivable that the police would
not have
verified the plaintiff’s version there and then with Ms
Grootboom who was present when the raid was effected. It
is unlikely
that the police would have waited until after the bail application
before approaching Ms Grootboom in order to verify
the plaintiff’s
version.
[48]
Furthermore, the plaintiff’s
version that he was related to Ms Grootboom and that he was engaged
in building work for her
son, was contradicted by the statement that
she did not know the persons who were arrested at the premises.
It is common
cause that the plaintiff was at all material times
inside the structure, also when he was arrested. His statement
in the
extract from his bail affidavit quoted in paragraph [20] above
that he was outside when the police handcuffed him and found the
drugs and firearm inside Jenovin’s room, is patently
untruthful.
[49]
A further unsatisfactory aspect of
the plaintiff’s evidence is his allegation that Jenovin had
locked himself and Bramwill
inside the outbuilding while Jenovin had
gone to buy building sand. He indicated that the
reason for this unusual
conduct was that Jenovin wanted to ensure
that the plaintiff would not leave and go and start drinking.
This explanation
becomes senseless in the light of the undisputed
evidence of Warrant Officer Jantjies that there were two further
entrances to
the structure and that the entrance that led to the tap
was standing ajar when the police entered the structure.
Jenovin
must obviously have been aware of the two remaining entrances
and that by only locking the security gate he would not have ensured
that the plaintiff cannot leave and go and start drinking. The
plaintiff’s version in this regard is clearly mendacious
in my
view.
[50]
It is furthermore highly unlikely
that the Plaintiff would without demur have allowed himself to be
locked up in premises where
he knew drugs were being sold.
Plaintiff is not a credible or reliable witness and his version does
not accord with the probabilities.
[51]
I accordingly find the evidence of
Warrant Officer Jantjies that there were drugs on the coffee table to
be true and reject the
denial by the plaintiff in this regard as
false.
[52]
It follows in my view that there were
reasonable grounds for the suspicion of Warrant Officer Jantjies that
the plaintiff and Bramwill
were the two runners and that they were
dealing in and were in possession of drugs justifying their arrest
without a warrant in
terms of section 40(1)(b) of the CPA. The
evidence in this regard is overwhelming. Bramwill had drugs on
his person
and the plaintiff was in possession of cash of various
denominations. There were drugs on the coffee table in their
immediate
vicinity and quantities of drugs were found inside the
structure. They did not respond to the request of the police to
open
the premises. An innocent third party would have informed
the police immediately that he cannot open up because he was locked
in by the owner who has the keys. They waited instead for the
police to remove the padlocks with a bolt cutter. Their
behaviour constituted more than sufficient grounds for Warrant
Officer Jantjies to conclude that they were part of the drug selling
operation. In view of the conclusion I have come to there is no
need to deal with possible justifications of the arrest in
terms of section 40(1)(a) or (h).
[53]
In the result I find that the
plaintiff was lawfully arrested.
[54]
Insofar as the judicial detention of
the plaintiff from 29 June 2018 to 6 December 2018 is concerned, it
is of fundamental importance
that the magistrate’s remand
orders are not being impugned in these proceedings. The
magistrate has neither been joined
as a party nor faced any claim in
these proceedings. The remand orders accordingly had binding
effect until set aside and
therefore remained valid. (
Mahlangu
supra
para [17].)
[55]
The remand orders were the factual
cause of the plaintiff’s judicial detention. The police
can nevertheless incur liability
for damages for unlawful detention,
notwithstanding the fact that the court has ordered such detention.
Examples are the
matters of
De
Klerk v Minister of Police
2020
(1) SACR 1
(CC) [“
De
Klerk”]
and
Woji v Minster of
Police
2015 (1)
SACR 409
(SCA) [“Woji”].
De
Klerk
dealt with
the situation of a “
reception
court
”
where
the case of the plaintiff in that matter was postponed simply as a
matter of routine. He was remanded in custody without
any
further ado on his first appearance without any consideration having
been given as to whether he should be released on bail
or otherwise.
His arrest was unlawful and the police knew that he would be remanded
in custody and would not receive bail
at his first appearance
although they did not oppose the granting of bail. The case was
withdrawn before the next appearance.
The majority of the court
held that the issue to be decided was causation, namely whether the
arresting officer at the time of
unlawfully arresting the plaintiff,
foresaw his continued detention by the court at his first appearance
as a consequence of his
unlawful arrest. The arresting officer
confirmed as much. The court found that on the facts of the
case the initial
unlawful arrest was sufficiently closely linked to
the judicial detention to warrant the liability of the police, i.e
that it was
the legal cause of the harm. What happened in the
reception court was not “
an
unexpected, unconnected and extraneous causative factor
”
also referred to a
novus
actus interveniens
(
De
Klerk supra
para
[81]).
[56]
In
Woji
the case dealt with
a further instance where the police would incur liability for
judicial detention. In this instance unlawful
conduct of the
police, unrelated to a lawful arrest, intended to influence the
decision to release the accused on bail, resulted
in bail being
refused where bail would otherwise have been granted but for such
unlawful conduct. The facts were that the
plaintiff was
lawfully arrested for robbery and remanded at his first appearance
for a bail application. The investigating
officer falsely
alleged at the bail hearing that the plaintiff could be identified as
one of the robbers on video footage of the
incident. As a
result, bail was refused. The charges were withdrawn against
the plaintiff after the prosecutor viewed
the footage and ascertained
that the plaintiff could not be identified as one of the robbers.
The police were held liable
for the unlawful conduct of the
investigating officer which constituted a separate delict from the
arrest. As was stated
in
Mahlangu
supra
:
“
[25]
Thus, if pleaded properly, the police will incur liability for
wrongful conduct subsequent to
an arrest, whether lawful or unlawful,
which caused a detained person to be deprived further of his liberty
after the first court
appearance, until that unlawfulness could be
corrected.”
[57]
In the present matter the onus was on
the plaintiff to prove that the remand orders stood to be impugned.
No attempt has been
made to do so. These orders were thus valid
and binding and caused the continued detention of the plaintiff which
cannot
be ascribed to any of the defendants. In order
nevertheless to establish liability on the part of the defendants,
the plaintiff
had to prove wrongful conduct on their part which
caused the further judicial detention of the plaintiff. The
plaintiff dismally
failed to do so. It is clear from the facts
set out above that this was not an instance of a “
reception
court
”
where
the defendants failed to bring material information to the attention
of the remand court which would have resulted in the
release of the
plaintiff. The second disputed issue accordingly has to be
decided in favour of the defendants. In this
case the plaintiff
had to remain in custody unless he could satisfy the requirements for
his release on bail. The bail application
was brought as soon
as circumstances permitted and there were no undue delays in this
regard. The bail application was dismissed
and plaintiff never
appealed this decision or brought a new bail application. As
indicated, the magistrate’s
orders are not being impugned in
these proceedings. There was accordingly clearly no wrongful
conduct on the part of the
defendants that caused the further
judicial detention of the plaintiff.
[58]
It follows that there is no basis
upon which the judicial detention of the plaintiff could be
assailed. The claim in this
regard (claim 2) falls to be
dismissed. I have already indicated that the arrest and police
detention of the plaintiff were
lawful. The claim in the latter
regard (claim 1) similarly falls to be dismissed.
[59]
In the result I make the following
order:
“
The
plaintiff’s claims are dismissed with costs.”
D O POTGIETER
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For
Plaintiff:
Mr L Swarts, instructed by Swarts Attorneys,
Korsten, Port Elizabeth
For Defendant:
Adv V Madokwe instructed by the State Attorney, Port Elizabeth