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[2019] ZAKZDHC 33
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Gumede v Minister of Safety and Security (AR230/2018) [2019] ZAKZDHC 33; [2020] 1 All SA 188 (KZD) (19 July 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO.
5571/2007
In the matter between:
BHEKI TREASURE GUMEDE
PLAINTIFF
and
MINISTER OF SAFETY AND SECURITY
DEFENDANT
O R D E R
The plaintiff’s
claim is dismissed with costs, such costs to include any reserved
costs.
J U D G M E N T
Henriques J
Introduction
[1]
In this action, the plaintiff seeks damages from the defendant
arising from an unlawful
arrest, detention and assault by members of
the South African Police Services (SAPS) which is alleged to have
occurred on 23 September
2006.
[2]
At the commencement of the trial, I issued an order in terms of
uniform rule 33(4),
by consent, directing that the trial proceed
solely on the aspect of liability.
Common
cause facts
[3]
The following facts are common cause, alternatively are not disputed:
(a)
The plaintiff was employed at SBV Services (Pty) Ltd (‘SBV’)
as a protection
officer in the cash-in-transit department.
(b)
On 23 September 2006 at approximately 08h00 at the Montclair Shopping
Centre, the plaintiff
was the subject of an armed robbery.
(c)
The plaintiff was seated in the driver’s seat of an SBV motor
vehicle at the
time, which was parked at the Montclair Shopping
Centre.
(d)
During the course of the armed robbery, the SBV vehicle was hijacked
with the plaintiff
inside and it was subsequently abandoned near the
Montclair Shopping Centre. The plaintiff’s crew, who were made
up of one
Katlego, the Standard Bank custodian; R T Zondi (‘Zondi’),
the rifleman and Thulani Ngcobo (‘Ngcobo’), the
team
leader, were left behind at the Montclair Shopping Centre.
(e)
Cash in the sum of approximately R3.9 million was stolen during the
course of the robbery.
(f)
Apart from the SBV vehicle which was subsequently recovered, the
monies stolen were
never recovered.
(g)
Neither the plaintiff nor any of his crew were subsequently charged
criminally for the offence
although shortly after the armed robbery,
the plaintiff’s employer suspected him of being involved. It is
also common cause
that a few days after the incident, the plaintiff
sought medical help at Victoria Hospital and that he became intensely
suicidal.
[4]
The defendant denies that the plaintiff was arrested and assaulted
but admits that
the policemen, as employees of SAPS, acted within the
course and scope of their employment and consequently that the
defendant
is vicariously liable for the actions of the said
employees.
Issues
[5]
The following issues are to be determined:
(a)
Whether or not the plaintiff was arrested without a warrant by
members of the SAPS on 23
September 2006;
(b)
Whether the plaintiff was detained at the Cato Manor Police Station
at the instance of the
defendant’s employees for a period of
ten hours;
(c)
Whether, whilst in custody, he was unlawfully assaulted for a period
of two hours
by the defendant’s employees by,
inter alia
:
(i) stripping
him
naked;
(ii) tying his arms behind
his
back to a chair and tying his legs to a chair;
(iii) covering his face and head
with
a nylon stocking thus obscuring his vision;
(iv) suffocating him with
a wet
rubber tube by wrapping it around his face;
(v) striking him with
rubber tubing on his body.
Onus
[6]
As the defendant denied the arrest, detention and assault, the
plaintiff had the duty
to begin and the onus of proof. The plaintiff
testified and was the sole witness.
The Evidence
[7]
Various exhibits were handed in during the course of the trial, some
of which may
be referred to during the course of this judgment. He
testified that on 23 September 2006, on his arrival at work at
approximately
05h00, his supervisor Eddie du Preez (‘Du Preez’)
informed him of the rounds he had to do for the day. The
plaintiff
then proceeded going through the checklist in respect of
the SBV vehicle he would be driving. On the day in question, he
was the appointed driver of the SBV vehicle, and his crew consisted
of Zondi who was his rifleman and carried an LM6, and Ngcobo
who was
the team leader. Ngcobo’s role was to ensure the safety
of the custodian, Katlego, who was an employee of Standard
Bank, as
he entered and left the various sites with the monies to be deposited
and collected. The two of them would be seated at
the back of the
vehicle.
[8]
After completing the checklist for the SBV vehicle he would be
driving, to check for
any defects, he handed the checklist to Du
Preez. He testified that he had previously reported that there
was a problem with
the locking mechanism of the sliding door of the
vehicle in that it did not lock. In normal circumstances, if
the locking
mechanism of the sliding door had been functioning
properly, it would mean that the plaintiff as the driver of the
vehicle would
be the only person who would be able to unlock the
vehicle from the inside. The SBV vehicle he described as an E20 taxi
which had
had its seats removed. There were only two single
seats for Ngcobo and Katlego to sit on.
[9]
Katlego had the key for the vault as well as the trunk in which the
money was stored
and was the only one who could open the vault and
the trunk containing the money. The vehicle had metal railings
on the inside
which made it bulletproof. The handle of the
sliding door enabled the locking mechanism, and provided it was in
working order,
prevented the sliding door from being opened from the
outside. The windows of the vehicle were tinted so one could
not see
in and out of the vehicle and in one part of the window there
was a hole through which the occupants of the vehicle could shoot
to
protect themselves.
[10]
After leaving the SBV offices in Greyville the plaintiff proceeded to
the first round which was
at the Montclair Shopping Centre. He
drove to the upper parking level as instructed by the team leader,
Ngcobo, who was responsible
for deciding where to park and for
determining the safest place for the vehicle. On their arrival
at the upper parking level,
Ngcobo alighted from the vehicle to do
reconnaissance to ensure that it was safe to alight from the
vehicle. Zondi also alighted
from the vehicle and stood outside
it to protect them and keep watch.
[11]
The plaintiff and Katlego remained in the vehicle and Katlego
prepared the monies inside the
vault to place it in the bag to load
the ATM. Ngcobo realised that the pedestrian gate that they
used to enter the premises
was still locked as it was early. He
reported this to them by means of his two-way radio. Ngcobo
returned to the vehicle
and instructed the plaintiff to proceed to
the entrance of the mall. On Ngcobo’s instructions, the
plaintiff parked
the vehicle with the mall on his left-hand side and
Ngcobo alighted from the vehicle and did reconnaissance to see if it
was safe
for them to exit the vehicle. Zondi similarly exited
the vehicle and stood outside to guard them whilst they were in the
vehicle.
[12]
Ngcobo reported that it was all clear and safe for them to exit the
vehicle. Katlego then
left the vehicle with the monies to load
the ATM. At the mall they did this on two occasions without
event. When Ngcobo
had taken the last bag and proceeded into
the mall, after approximately five minutes, the plaintiff who was
seated in the vehicle
heard the noise of glass breaking. This
was after Ngcobo had reported they were finished inside the mall and
were making
their way back to the vehicle. The plaintiff
noticed the barrel of a gun being stuck through the hole and pointed
at him.
[13]
The plaintiff was instructed to look up so he did not look at the
person’s face but observed
two persons entering the back of the
vehicle through the sliding door. One of the persons could
reach the communication system
and tried to disarm it. The
second person was trying to open the vault. The plaintiff was
then pointed at with a 9
mm firearm and told to drive the vehicle.
He was told to drive fast and whilst doing so the person pointed the
firearm at
him which enabled him to notice that the 9 mm firearm
being pointed at him was his own firearm which he had been issued
with
earlier on in the day.
[14]
After approximately one kilometre, the person instructed him to stop
the vehicle and it was then
that the plaintiff observed that they
were being followed by a silver Toyota bakkie. The
vehicle was a similar colour
as the escort vehicles utilised by SBV
and the plaintiff initially thought it was an escort vehicle of SBV.
However, the
driver of the silver bakkie stopped his vehicle,
alighted from it and came and assisted the two assailants to remove
the trunk
and the vault from the back of the SBV vehicle and place it
in the silver bakkie.
[15]
The plaintiff was left inside the vehicle with the doors open and the
silver bakkie and its occupants
left the scene. The plaintiff
was alone in the vehicle without a cell phone as he was not allowed
to carry one whilst on
duty. He was shocked and alighted from
the SBV vehicle noticing that his firearm had been taken away by the
assailants.
The plaintiff on realising that he was alone tried
to flag down oncoming vehicles to seek assistance.
[16]
After a while a white vehicle driven by a female police captain
stopped. The driver of
the vehicle approached the plaintiff and
asked him what had happened. The plaintiff testified that he
had difficulty speaking
to her and narrating to her what had
transpired in a coherent fashion. He was hysterical and crying
at the time. She
gave him water to drink which he did. He
observed her telephone the police. The plaintiff estimated that
the police arrived
after approximately ten minutes. After a
while he noticed an SBV vehicle arrive on the scene and Etienne Botha
(‘Botha’)
from SBV alight from the vehicle.
[17]
The plaintiff was approached by policemen who were dressed in uniform
and who asked him for a
description of the suspects’ vehicle.
He told the policemen that he did not see the suspects clearly but
the plaintiff
was in such a state that he could not speak to them
coherently. He informed them of the direction which the vehicle
had driven
off in and that he did not know the identity of the
suspects. Whilst at the scene he was approached by a white
policeman
with a notepad who started asking him questions.
[18]
One of the policemen instructed another policeman by the name Mbatha
to take him to the Cato
Manor Police Station. On arrival at the
police station he was approached by one of the white police officers
who informed
him that he ‘must talk’. They entered
an office and he noticed Katlego, Zondi and Ngcobo. After
waiting
in the office for a short while Botha arrived and took them
to the SAPS provincial office. They waited there for
approximately
45 minutes and were thereafter led to a boardroom where
he and his colleagues were subjected to a polygraph test.
Thereafter,
Botha took him back to the Cato Manor Police Station at
approximately 12h30. A white police officer called him into an
office
on his arrival at the Cato Manor Police Station. There
were a number of policemen also busy with his colleagues. He
was told that he must talk and tell them what had happened.
[19]
He was unable to do so as he was still traumatised from his ordeal.
The white policeman intervened
and said the following: ‘If you
don’t want to talk, then you will shit’. Another police
officer, by the name
of Nzama, was also present. The plaintiff
testified that the white police officer instructed him to remove his
clothing and strip
until he was naked. A chair was brought for
him to sit on and before he could sit down a white police officer
came in with
a bucket full of water and a tube and a pantyhose.
His hands were tied behind his back onto the chair, as were his
legs.
The white police officer said to him:
‘
We
are here for you to tell us the truth, and after the treatment that
you will be getting, you’ll be watched for you to give
a sign
by clicking or by stamping your foot down and this will be an
indication that you are now wanting to tell the truth.’
[1]
[20]
The plaintiff testified that the unknown police officer held the
pantyhose over his head and
Nzama had immersed the tube in water and
held the tube over his face so that it was blindfolding him and
covering his nose and
his mouth so that he could not breathe.
Nzama was standing and holding his knee against the back of the chair
so as to balance
the chair so that the plaintiff would not fall.
The white police officer who sat opposite him kept on telling him
that he
had to click to indicate that he was prepared to tell them
what had transpired. The plaintiff testified that whilst in
this
room the questions started. He described the situation as
everyone asking questions at the same time.
[21]
He testified that at the time there were other policemen who were
present but some distance away
in the same room. The questions
that were asked repeatedly of him related to where the money was, who
took the money, whether
he knew the suspects, how much money was
taken and where the suspects had gone with the money. The
plaintiff testified that
the questions kept on being repeated over
and over and as they were being repeated the persons questioning him
were getting louder
and louder and talking to him all at the same
time. As the questions intensified so too did the pulling of
the tube and the
pantyhose around his nose and mouth. Because
the plaintiff could not breathe he then complied and clicked his
fingers and
stamped his foot to indicate that he wanted to talk.
[22]
The plaintiff testified that he did this in order that he could catch
his breath but after a
while the assaults began again and he felt
himself falling to the floor. The white police officer then put
his foot on top
of his chest and kept on saying: ‘Talk’.
When he told the policemen that he did not know what they were
talking
about and he did not know the identity of the robbers the
process kept on being repeated. After a while his only
recollection
was urinating and defecating. The white police
officer then left the room and he remained in the room with Botha and
a black
police officer who then approached him and removed the
tube and pantyhose and said to him that he must tell them the truth.
One of the police officers asked him to provide an explanation as how
the robbers were able to open the vehicle from the outside.
[23]
He informed them that the locking mechanism on the vehicle was faulty
and as a consequence the
sliding door could be opened from the
outside. In addition he told them that Botha from SBV was aware
of this. Botha
who was present was asked to confirm this and he
did so and he informed them that the door had been defective and
reports had been
received about the door and the defective locking
mechanism. After a while Botha left the room and the white
policeman re-entered
the room. The plaintiff was left sitting
on the chair and they ate food in front of him. He was not
offered any food
or water even though he requested water on a number
of occasions.
[24]
For a long while the plaintiff just sat there waiting for them and at
approximately 16h45 he
left their offices. His hands were untied and
he untied his feet and after a while the white police officer came in
and poured
water into the bucket and gave him a mop and Handy Andy
and told him to clean up the room especially where he had messed.
He cleaned the floor properly and dressed into his uniform and sat on
the lawn outside. The police officers left him and
entered into
an office and at that stage his manager, Du Preez, fetched him and
they drove to the SBV offices in Greyville.
Whilst on the way
to Greyville, Du Preez received a telephone call and he then asked
the plaintiff for his car keys and his cell
phone. The
plaintiff handed over his car keys. On their arrival at the
Greyville offices, Du Preez took the keys and
went to his vehicle and
opened it. Nzama was already there waiting for them.
Nzama confiscated the plaintiff’s
Nokia 6820 which was inside
the plaintiff’s vehicle, and whilst they stood at the vehicle
Nzama informed him of his name
and rank and told the plaintiff that
if he heard anything more about the incident he was to contact him
and inform him thereof.
[25]
The plaintiff testified that he climbed into the passenger seat of
his vehicle and slept.
He noticed a colleague of his, Tsietsi,
arrive and Tsietsi drove him home as he was unable to drive. A
day or two after the
incident, the plaintiff testified that he
attended the Victoria Hospital where he was admitted and subsequently
seen by Doctors
Moolla and Mansoor, a psychiatrist. He was
admitted in hospital until his discharge on 29 September 2006.
That concluded
the case for the plaintiff.
[26]
The first witness for the defence was Du Preez, an employee of SBV
Services (Pty) Ltd SBV, which
provides security guard services for
cash in transit. . He testified that he is currently employed
by SBV as a Logistics
Manager but at the time of the incident he was
employed as the Chief Protection Officer. His duties would be
to schedule
the work for the day and assign crew to attend to the
respective runs; in other words he would manage the day-to-day
operation
of the business. This would ensure that persons were
allocated to particular vehicles as well as being issued with the
necessary
equipment according to the company’s minimum standard
operating procedures.
[27]
In 2006 he was the plaintiff’s supervisor and he confirmed that
he was at home in the morning
at the time the incident occurred when
received a telephone call from his offices advising him of the armed
robbery. He then
travelled to the offices. He confirmed that
the vehicle which the plaintiff described was a Toyota Combi which
had two sliding
doors, one is the normal standard outside sliding
door and on the inside there is an armoured sliding door. The
lock is manufactured
in such a way that when one closes the door it
automatically locks. The crew men would carry the key for the
outside locking
mechanism. On the vehicles’ dashboard, located
near the driver, there were two buttons, one that would unlock the
normal
outside sliding door, and the other that would unlock the
inside armoured sliding door.
[28]
In the event of both the buttons not working one could still manually
operate the doors without
comprising the security of the vehicle.
To manually override the outer sliding door you have a pin that goes
into the door
and when you unlock it, it pops up. You would
lift the pin and you would be able to open the outer sliding door
from the
inside. The armoured sliding doors also have the same
locking mechanism that could be disengaged with the button and if the
button
did not work there was a lever on the inside that one could
lift up and push the handle outside which would slide open the
armoured
door. The handle on the armoured door was on the
inside.
[29]
He confirmed there was nothing separating the front portion of the
vehicle where the driver and
his passenger sat from the back of the
vehicle. The armoured door and the normal sliding door were
accessible to any of the
passengers seated in the vehicle and in
front of the vehicle. The driver could, whilst seated in the
driver’s seat,
basically turn his body to the left and lean
back and would have access to both the armoured door and the outside
sliding door.
[30]
On 23 September 2006, his second-in-charge would have checked the
vehicle to see that it was
operating. In addition the driver of
the vehicle would also have to check the vehicle to ensure that the
minimum security
requirements were met. He confirmed that he
last checked the vehicle on Friday, 22 September 2006 and it could
not be so
that both the sliding door and the armoured door were not
operational. He also indicated that he disputed the plaintiff’s
evidence that on the day of the robbery the normal sliding door and
armoured sliding door were not operational. He indicated
that
each vehicle is inspected after a robbery to make sure that the
vehicle has been dispatched with the minimum security requirements.
Had the company inspected the vehicle and found that it did not meet
the minimum required security standards, then he and his
second-in-charge would have been dismissed from their positions.
[31]
He confirmed that a security guard performing their duties is allowed
to take company issued
equipment and is not allowed a cell phone or a
radio. The only person who would be entitled to have a cell
phone would be
the Standard Bank custodian in the vehicle who was not
employed by SBV who would have a cell phone issued to him by the
bank.
[32]
He confirmed that as part of the employment contract with SBV and at
management’s discretion,
employees may be required to take
polygraph examinations. He confirmed that in respect of this
incident, the polygraph examination
was arranged by management and
the examiner was not employed by SBV. He indicated that he was
not aware of which company
undertook the specific polygraph tests
emanating from this incident but knew that the examiner who conducted
the polygraph was
Vic Panday who is not employed by SBV.
[33]
Although he was not present at the time the polygraph tests were
conducted he was informed by
management that two of the three staff
members, had failed the polygraph examinations, and that the
plaintiff was one of those
who had failed. He testified that
his involvement on the day of the incident was to act as a driver. He
was asked to leave
his home and go to his office to be on standby to
receive further instructions. From his office he thereafter was
instructed
to go to the Serious and Violent Crime Unit in Cato
Manor. He was informed by Botha that the staff had to attend
polygraph
examinations. Botha left with the plaintiff to go to
the polygraph examination and Du Preez waited for one of the other
staff
members to complete his statement with SAPS and then took him
to the SAPS provincial office for his polygraph examination.
[34]
By the time of Du Preez’s arrival with the other employee at
the SAPS provincial office,
the plaintiff had completed his polygraph
examination and Du Preez was then asked by Botha to return the
plaintiff to the Serious
and Violent Crime Offices at Cato Manor.
When he arrived at Cato Manor with the plaintiff, the third SBV
employee had completed
his statement. He then left the
plaintiff at the Cato Manor police offices and took the third
employee to the SAPS provincial
office for his polygraph
examination.
[35]
He confirmed that after the employees had conducted their polygraph
examinations he was responsible
for travelling with them to SAPS
offices in Cato Manor and thereafter returning them to the SBV
offices after the interview with
the police. He testified
that when he returned to the Cato Manor Police Station to transport
the plaintiff back to
Greyville, he found the plaintiff standing
outside one of the offices. Du Preez not speak to the plaintiff on
their way back to
Greyville and neither did the plaintiff speak to
him.
[36]
He also indicated that as someone who travelled with the plaintiff in
the vehicle there was nothing
untoward about the plaintiff – he
had no smell or odour indicating that he had been incontinent of
faeces. On their
arrival at the SBV offices at Greyville he
dropped the plaintiff off at road level. He then proceeded to
the building where
they park their vehicles and when he returned to
his office he noticed the plaintiff sitting inside his own vehicle.
One
of the fellow employees of the plaintiff took him home.
[37]
He indicated that he could not remember having taken the plaintiff’s
keys to the plaintiff’s
private vehicle and opening it.
In addition he confirmed that no disciplinary steps were taken
against the plaintiff as there
was insufficient evidence to hold an
internal disciplinary enquiry. He confirmed that a few days
after the incident, he was
advised that the plaintiff was admitted to
hospital and was being treated for depression. The plaintiff
then went on temporary
medical board and thereafter on full medical
board. The plaintiff subsequently resigned from the company.
[38]
Regarding the other two employees he confirmed that nothing
transpired in relation to Ngcobo
as there was no evidence whatsoever
against him. The third employee involved in the incident,
Zondi, who also failed his
polygraph examination, was regarded as a
‘high-risk employee’. Someone is described as a
‘high-risk employee’
if it appears that they pose a risk
to the company in that there is a possibility that they may collude
with robbers to rob the
company or that they would wilfully not
follow security procedures which would ultimately cause a loss to the
company.
[39]
High-risk employees are managed on a day-to-day basis and they are
not allocated duties that
involve them coming into contact with huge
amounts of money. During cross-examination he confirmed that
for the period of
2004 to 2006 there was a spate of armed robberies
specifically involving SBV vehicles. He indicated that his
involvement
with the police on the crime scenes would be to establish
whether any internal security procedures had been breached. He
indicated that the Serious Violent and Crime Unit in Cato Manor was
involved in the investigation of these spate of armed robberies.
[40]
He confirmed that when the vehicle arrived back at the premises he
had inspected it to establish
that everything was okay. The
window of the sliding outer door had been broken out. During
cross-examination a statement
from the senior of the SBV team,
Shange, was put to him in relation to the problems experienced by the
SBV vehicle involved in
the robbery. He confirmed that that
report recorded that the override button that was normally used to
open the sliding armoured
door was not working and had to be opened
by the driver at the door himself. Du Preez indicated that this
was not a problem
as regardless of whether the two buttons work on
the dashboard, the door can still be locked and still be opened
manually on the
inside by the driver.
[41]
In response to questions from the court, he confirmed that even
though some employees may have
failed the polygraph test, they do not
regard them as suspects but rather as high-risk employees. This
is because they leave
the investigation to the SAPS. He also
confirmed that at all times Botha was standing with him whilst the
plaintiff was being
interviewed by the policemen. They were
outside on the tarred driveway and not inside.
[42]
Jan Johannes Eugene Van Tonder (‘Van Tonder’) testified
that on 23 September 2006
he was employed as a Captain in the SAPS
attached to the Organised Crime Unit, Cato Manor. On the day of
the incident he
received a call from radio control informing him of a
cash-in-transit robbery of an SBV vehicle which had occurred at the
Montclair
Shopping Centre. He was informed that the SBV vehicle
was subsequently recovered near the Spar at the Yellowwood Park
Shopping
Centre. After informing other SAPS members on standby
duty with him of the incident, he proceeded to the Yellowwood Park
Shopping Centre and on his arrival established who the plaintiff was.
[43]
During his initial interview with the plaintiff, he informed him that
he was the driver of the
SBV vehicle which had been hijacked from the
Montclair Mall and that he had been taken at gunpoint to the
Yellowwood Park Shopping
Centre where the vehicle was abandoned.
He proceeded to take a detailed statement from the plaintiff based on
what he had
informed him at the time.
[2]
According to an entry in his pocket book, he was at the scene
for approximately two hours from 08h30 to 10h30. Thereafter
he
returned to the Cato Manor Police Station as he had an arrangement
with Mr Smith from the Fidelity Guard group about a possible
cash-in-transit robbery at the Wardkiss hardware store at Sydney
Road.
[44]
He proceeded to the Wardkiss hardware store in Sydney Road and
monitored the pick up by Fidelity
Guards. He had left the Cato
Manor Police Station and returned just before 12h00. On his
return he busied himself with
administrative duties and at
approximately 13h00 the SAPS team that had attended the SBV armed
robbery scene arrived and interviewed
witnesses. At the time
Botha of SBV had informed him that some employees had failed a
polygraph test earlier on and
that SBV needed the assistance of the
police to question them. Among the employees whom Botha
informed him had failed
the polygraph test was the plaintiff.
[45]
He described the Cato Manor Organised Crime offices at the Cato Manor
Police station as open
plan with two offices. The investigating
officer occupied an office on one side and his was on the other side
next to it
with a space in between the two offices. Inspector
Nzama was the appointed investigating officer in the matter.
Initially
the persons present at the time of the interview were ,
police officers Nzama, Makhanya, MacInnes, Reserve Constable Coomb
and himself and Botha, who arrived some time later. At
the time of the interview the employee was seated in the chair
and an
officer sat at a desk taking notes. The rest of the SAP members
were in chairs in a circle around the witness in close
proximity to
the plaintiff.
[46]
Van Tonder testified that all persons including investigators had
access to the plaintiff’s
statement and asked him to repeat his
version. At the time if any one person noted any discrepancies
they would question
the plaintiff about this and ask him for
clarification. Questions were posed to the plaintiff by all
SAPS members present
but not all at once and not all at the same
time. He testified that the purpose of the questioning
was to obtain clarity
as to what had transpired. The interview
process involving all three employees lasted until approximately
15h30. All
employees were interviewed and he could not recall
the exact amount of time spent on the interview with the plaintiff.
Van Tonder
testified that Botha was present for most of the Interview
with the plaintiff.
[47]
He indicated that they asked the plaintiff questions and at times he
recalled becoming annoyed
with the plaintiff as it appeared that the
plaintiff was not replying and not being very co-operative. He
confirmed that
at some point in time he vented his frustration by
raising his voice to the plaintiff and informing him to tell the
truth.
At 15h30 the plaintiff was released and it appeared to
him as though there was nothing wrong with the plaintiff although he
did
recall that the plaintiff had claimed that he had been
assaulted. He did not observe any members present assaulting
the plaintiff
and denied that he had at any stage assaulted the
plaintiff.
[48]
He testified that on his arrival at the scene when he initially
interviewed the plaintiff, he
did not gain the impression that the
plaintiff was distraught or upset. He observed the plaintiff as
being calm and the plaintiff
provided him with a detailed statement.
This was after the plaintiff had initially briefly informed him what
had transpired
and he asked the plaintiff to explain what exactly had
occurred.
[49]
He testified that at all times during his initial interview of the
plaintiff he questioned the
plaintiff for the purposes of taking down
a detailed witness statement. At all times during his
interaction with the plaintiff,
the plaintiff conversed with him in
English and did not express any difficulty in doing so. He at
all times considered the
plaintiff to be a witness and not a
suspect. It was for this reason that he did not warn him of his
constitutional rights.
He had asked the plaintiff if he was
prepared to make a statement and the plaintiff indicated he had no
difficulty in doing so
and proceeded to do so.
[50]
Botha, who is employed as an ATM Manager for SBV Services, KZN
Region, confirmed that at the
time of the incident he was a member
the Tactical Support Unit. The unit exists within SBV and
provides support on the road
to SBV employees in the KZN area.
On the morning of 23 September 2006 his office advised him of the
incident which occurred
at the Montclair Shopping Centre.
Because he was the manager of the unit he attended at the shopping
centre. The vehicle
was responsible for replenishing the
Standard Bank ATMs. On his arrival at the shopping centre he
met with the crew of the
SBV vehicle who were on the scene.
They advised him briefly of what had transpired and informed him that
the SBV motor vehicle
and cash had been hijacked. A short while
later he was advised on the radio that the SBV vehicle was recovered
near the Spar
at the Yellowwood Park Shopping Centre.
[51]
He proceeded to the Yellowwood Park Shopping Centre and estimated
that he arrived between between
08h30 and 08h45. On his
arrival, the SAPS were already on the scene and he recollected seeing
Van Tonder and other SAPS officers.
He also observed the SBV
vehicle parked on the pavement with the plaintiff inside the
vehicle. He interacted with the plaintiff
and asked him what
transpired as he was the only employee in the vehicle who could
inform him of what had occurred as the other
members of his crew were
left behind at the Montclair Shopping Centre and were not in the
vehicle at the time of the hijacking.
[52]
He testified that the plaintiff was very reluctant to speak, was
overly calm and uncooperative
in telling him what had occurred.
He did recall that the plaintiff informed him that he had been
assaulted by his assailants
and abducted by them. He did not
notice any visible injuries to the plaintiff and neither did the
plaintiff request any medical
assistance at the time. As a
consequence of the plaintiff’s reluctance to cooperate, he was
very upset as the plaintiff
had full control of the vehicle and cash
and it appeared that the plaintiff was reluctant to come forth and
provide them with an
explanation as to what had occurred. He
confirmed that he did not spend more than one and a half hours at the
secondary scene.
[53]
He then proceeded to the Cato Manor Police Station after arrangements
had been made for the plaintiff
and other members of his crew to be
taken there by management. On his arrival there, he instructed
persons to arrange for
a polygraph test to be conducted on the
employees. There was no officer available at the SBV offices to
conduct the polygraph
test and he consequently sourced a board room
at the provincial offices of the SAPS. He was responsible for
transporting
the plaintiff and his crew members to the provincial
SAPS offices for a polygraph test to be conducted.
[54]
The polygraph tests took place from approximately 11h00 and each test
lasted approximately 45
minutes to an hour per member of the crew.
The plaintiff and his entire crew were subjected to a polygraph
test. The
plaintiff and two members of his crew failed the
polygraph test and it was apparent that there were discrepancies in
the statements
taken from them as to how the incident occurred.
In addition an explanation was required in order to ascertain how it
was
that the assailants were able to access the SBV vehicle, hijack
it and steal the money.
[55]
He testified that after he had transported the plaintiff and his crew
members who failed the
polygraph test to the Cato Manor Organised
Crime offices at the Cato Manor Police station, they were interviewed
by members of
the SAPS in his presence as well as other SBV employers
were present. He sought the assistance of SAPS to ascertain
exactly
what had transpired. He corroborated Van Tonder’s
evidence as to how the plaintiff and other employees were seated in
the room. He confirmed they were questioned repeatedly
regarding what they had said in their statements and what they
subsequently
said during the course of questioning. He
confirmed they were questioned repeatedly and that it was a heated
exchange.
In his view, it was similar to a verbal
interrogation. Everyone present asked questions.
[56]
He testified that the plaintiff’s attitude at the time was that
he refused to disclose
any information and it was thus unclear as to
how the assailants were able to access the SBV vehicle which the
plaintiff was in
control of. The questioning of all three
employees lasted a few hours and although he could not recall exactly
what time
the questioning and interviews finished, he estimated that
it was by either 15h00 or 16h00.
[57]
All employees including the plaintiff were treated in exactly the
same way and were what he termed
‘cross-questioned’.
Questions were heated and when it became obvious that they were not
going to get answers
to their questions all three employees including
the plaintiff were taken back to the SBV offices in Greyville and he
returned
to his offices in Westmead.
[58]
He confirmed that during the questioning session the plaintiff was
extremely uncooperative but
did not complain or ask for anything.
He confirmed that what concerned him was that after perusing the
statements it was
unclear as to how the robbers were able to open the
door. He testified that the door did not open from the outside
and only
the plaintiff who was seated inside the vehicle had access
to open and close the doors. Even if the locking mechanism on
the door was faulty, and had been reported, there were two options
open to the plaintiff. The SBV vehicle could still be used
and
the driver would ensure that the door was locked from the inside
which would involve the plaintiff simply leaning over and
stretching
back and locking the door from the inside. Alternatively,
another vehicle could be utilised.
[59]
He disputed that the plaintiff was detained against his will and or
assaulted. He testified
that they needed answers and sought the
assistance of the SAPS members of Cato Manor. He agreed that the
plaintiff was inundated
with questions in loud voices. He
disputed that the plaintiff was denied food or water or requested
anything. He testified
that had the plaintiff indicated he
wanted anything it would have been provided. He also confirmed
that at the time of this
incident there were a number of
cash-in-transit robberies which were taking place and he was
extremely frustrated with the conduct
of the plaintiff as the
plaintiff was uncooperative and repeatedly avoided answering
questions.
[60]
He said that normally a driver in the situation like the plaintiff
would explain what transpired
to allow SBV to take steps to further
the investigations and try and apprehend the robbers and more
importantly recover the money.
What also concerned him was that
there were security measures in place for SBV purposes and also for
insurance purposes.
Should the insurance company find any
negligence or failure to comply with internal procedures then the
insurance company would
not cover the loss of the money that was
stolen. He confirmed that he could not recall if Van Tonder was
in possession of
the plaintiff’s statement and indicated that
even though he was aware the plaintiff made a detailed statement to
Van Tonder,
he had not seen it. He regarded the plaintiff as
the prime suspect because of his conduct.
[61]
Nzama confirmed that he was the investigating officer in the matter,
and was stationed at the
Cato Manor Organised Crime Unit at the
time. He was on-call on the day in question and received
notification of a robbery
and hijacking at the Montclair Shopping
Centre. On his arrival at the Montclair Shopping Centre at
approximately 10h00, he
saw members of the SAPS Montclair present and
noticed that the area had been cordoned off. After speaking to
the members
of the SAPS Montclair, he was apprised of the hijacking
and robbery of the SBV vehicle. He had also been informed that
the
vehicle had been recovered in Yellowwood Park and after
interviewing the persons present at the scene at the Montclair
Shopping
Centre he proceeded to the Montclair Police Station to
register the docket. After registering the docket he then
proceeded
to the offices at Cato Manor and arrived just before
13h00.
[62]
He prepared the docket and started making entries and reports.
Whilst doing so, Botha of
SBV arrived with three employees and sought
their assistance to question these employees as they had failed their
polygraph tests.
Van Tonder was inside his office and Botha
handed the plaintiff over to Van Tonder. They thereafter all
proceeded into an
open plan space and sat down at a table. They
were joined by the members of the SAPS present and Botha and
all sat
in a circle and started questioning the employees. All
the employees present were witnesses to the incident and they wanted
to establish information relevant to the investigation from them.
Nzama corroborated Botha and Van Tonder’s evidence
in relation
to the layout of the offices and how they sat at the time of
interviewing the employees.
[63]
He confirmed that the employees were questioned about the incident by
all the SAPS members that
were present. The plaintiff only
answered some of the questions but did not answer other questions
posed to him. He
confirmed that Van Tonder had taken a
statement from the plaintiff and was questioned about the contents of
the statement to clarify
the aspects that were not clear. He
confirmed that on his arrival at the offices, Botha had informed him
that all three employees
had failed their polygraph test and the
purpose of questioning them was to establish and verify what they had
said during the interviews
when compared to their statements to see
if they could provide any further information to assist in the
investigation to enable
SBV as well as SAPS to establish precisely
what had occurred.
[64]
He confirmed that the plaintiff and other employees were treated as
witnesses and not as suspects.
The focus of the process was a
fact-finding process and the purpose was to compare what was said in
their statements and what emanated
from their answers to the
questions posed to them. He testified that the plaintiff’s
statement had been taken from
him soon after the incident and in the
area where the SBV vehicle had been abandoned. The plaintiff
was probably still frightened
and traumatised by what had
transpired.
[65]
Because a huge amount of money was involved it was important to
verify the plaintiff’s
version and to establish exactly what
had transpired. He confirmed that he could not recall the exact
time the interview
of the plaintiff concluded and the plaintiff
looked okay. The interview was conducted in English as the
plaintiff could speak
and understand English well and he did not
indicate that he had a problem communicating with them in English.
The plaintiff
was a witness and not a suspect and in consequence
thereof his rights were not explained to him at any stage. He also
confirmed
that Botha was present during the interview with the
plaintiff.
[66]
That then was the evidence of the defendants.
Submission
of the parties
[67]
Mr
Naidu,
who appeared for the plaintiff, submitted that the
plaintiff cooperated at the outset with the police in the
investigation.
He had been handed over to SAPS members at the
Cato Manor Organised Crime Unit by his employees and was
interrogated. He
submitted that even though the evidence of the
police officers who testified was that they regarded the plaintiff as
a witness
and not as a suspect, Botha’s evidence was clear.
He regarded the plaintiff due to his uncooperativeness as the ‘prime
suspect’ and did not regard him as a witness.
[68]
According to Botha’s evidence what transpired at the Cato Manor
Organised Crime offices
was an interrogation and the plaintiff was
treated as a suspect. He was believed to be complicit in the
crime and the purpose
of their interrogation, according to Mr
Naidu
,
was to cause the plaintiff to implicate himself in the commission of
the offence.
[69]
In addition he submitted that all the defence witnesses confirmed
that the plaintiff’s
constitutional rights were not explained
to him and he was not told that he could leave at any stage.
For all intents and
purposes the plaintiff was treated as a suspect.
The purpose of the questioning was to extract a confession from the
plaintiff.
He submitted that on the evidence the plaintiff was
in the custody of the police at the police station for approximately
three
to four hours. Even though it was possible that the
actual questioning process may have been shorter, it is clear that
the
plaintiff was detained for a period of time until such time as he
and the other employees who had failed the polygraph test, were
taken
back to the Greyville offices of the SBV.
[70]
He submitted that even though the plaintiff was a single witness his
version when compared with
that of the defence witnesses was more
probable. He submitted that when the evidence presented is
viewed holistically, the
plaintiff was in essence tortured and there
can be no doubt that he was assaulted by the members of the SAPS in
the presence of
SBV employees. He was never informed that he
was a witness and that was at liberty to leave whenever he wanted
to.
He submitted that what corroborates the plaintiff’s
version is the fact that despite the plaintiff having provided a
detailed
statement, no satisfactory explanation was given during
cross-examination of the defence witnesses as to why it was necessary
to
obtain further clarification regarding the contents thereof. At
the conclusion of his submissions Mr
Naidu
handed up a draft
order.
[71]
Mr
Kisten,
who appeared for the defendant, submitted that
there was a factual dispute and as such the matter fell to be
determined based on
the credibility of the respective witnesses.
The court needed to decide the matter having regard to the test laid
out in
Stellenbosch Farmers’ Winery Group Ltd & another
v Martell et Cie & others
2003 (1) SA 11
(SCA). If one
had regard to the plaintiff’s particulars of claim specifically
the allegations contained in paragraphs
6(a) to (e), the plaintiff
did not plead that he was struck on his body. This was a
crucial aspect which was missing from
his evidence when he testified
and it affects his credibility as a witness. If one accepts
that he was a single witness to
the event and has regard to the
J88
[3]
,
there was no record of a single mark to the plaintiff’s body.
This must affect his credibility as a witness and furthermore
the
reliability of his evidence regarding the assault.
[72]
Having regard to the plaintiff’s evidence in relation to what
transpired during the alleged
assault,
[4]
the plaintiff testified that whilst he was being assaulted with the
tube placed over his head, Nzama held the back of the chair
so that
it would not fall. The plaintiff testified that the pantyhose
was tied such that he was blindfolded. The question
thus arises
as to how the plaintiff would have been aware that it was Nzama
holding the chair if he could not see his assailants.
He
submitted that the plaintiff’s version was contrived.
[73]
In addition, the evidence of all the defence witnesses was
consistent. Van Tonder, Botha
and Nzama confirmed what
transpired. All the defence witnesses were clear that no
assault or ill-treatment of the plaintiff
occurred. Even though
they regarded him as a witness and the questioning of the plaintiff
and the other employees was vigorous
and they were shouting, this did
not mean that the plaintiff was tortured. In addition the
reliability of the evidence of
the defence witnesses must be seen
against the fact that they conceded certain aspects during their
evidence. Here he specifically
referred to the evidence of Van
Tonder and Botha that they became frustrated and angry with the
plaintiff regarding his failure
to cooperate and fully explain what
had transpired. They felt that he was not being forthright and
honest as to what occurred.
[74]
It was argued that nothing can be said to be wrong with this
approach, and their apparent frustration
in light of Botha’s
evidence regarding the uncertainty of whether the insurance company
would pay out for the loss of the
cash was reasonable. There
was also nothing wrong with the fact that, given the prevailing
circumstances and the undisputed
evidence regarding the number of
cash-in-transit robberies that had occurred at the time, and the
evidence of Van Tonder as to
what transpired in relation to Fidelity
Guards on the morning of the incident SBV sought the assistance of
SAPS. In essence
this was to enable SBV as well as SAPS to find
out exactly what had transpired.
[75]
Mr
Kisten
argued that the evidence of the defendant’s
witness was clear and unchallenged. Had the plaintiff wanted
anything to
eat or drink he could have asked for it and it would have
been provided to him. He submitted that the plaintiff’s
version
was improbable and contrived and the evidence of the
defendant’s witnesses ought to be accepted when viewed in light
of the
test in
Stellenbosch Farmers Winery
.
Consequently, he submitted that the action ought to be dismissed with
costs.
[76]
Subsequent to the hearing of the matter and in preparation of the
judgment and having regard
to the oral submissions made by the
respective parties’ legal representatives, it became apparent
that neither of the parties
had addressed me on certain authority
which I encountered during the course of research in preparation of
the judgment.
[77]
In consequence thereof an email was despatched on 28 January 2019 to
the respective parties requesting
them to file supplementary heads of
argument dealing with aspects not canvassed during their
address as well as the
authority referred to in my
correspondence. These submissions were to be made by 27
February 2019. Only the plaintiff
complied with such request on
22 February 2019 and submitted written heads of argument.
[78]
Since the defendant’s attorneys of record, the State Attorney,
failed to comply with such
written request, follow up emails were
dispatched to the offices of the State Attorney, specifically the
attorney dealing with
the matter, Mr Bhagwan. A response was
received by my registrar, Ms Matthewson from his offices on 3 April
2019, subsequent
to two further email reminders being dispatched by
her. He indicated that the trailing email as well as the email
of January
2019 had only come to his attention in April 2019.
[79]
He indicated he would discuss the contents thereof with counsel and
revert. He subsequently
reverted requesting a copy of the
transcript of the proceedings and my registrar responded indicating
that he should liaise with
the plaintiff’s attorneys of record
for the transcript.
[80]
Since the email of 4 April 2019, the defendant has not provided any
written submissions and neither
has there been any indication when
such submissions would be filed. Consequently, I have no
alternative but to finalise the
judgment in the absence of any
written representations or a request to make oral representations by
the defendant.
[81]
In doing so I have considered the following further written
submissions of the plaintiff. Mr
Naidu
in these further
written submissions indicates the following:
(a)
that at the scene of the robbery on 23 September 2006, at
approximately 08h30, the plaintiff
was ‘interrogated’ by
Van Tonder which culminated in an affidavit being deposed to by the
plaintiff while the parties
were still at the scene of the robbery.
The plaintiff was so ‘interrogated’ at a time when he had
been through
a traumatic experience. Immediately after being so
interrogated and deposing to the affidavit on the instructions of Van
Tonder,
the plaintiff was taken by Mbatha to the Cato Manor Police
Station;
(b)
the affidavit which the plaintiff had deposed to was a witness
statement and it was never
asked of him whether he was willing to be
taken to the police station;
(c)
the plaintiff did not have freedom of movement at the Cato Manor
Police Station and
after a about two hours he was taken by Botha for
the polygraph test which was conducted by a member of the SAPS
[5]
at
the provincial offices of the SAPS in Durban;
(d)
after the polygraph test he was taken back to the Cato Manor Police
Station and was interrogated
by a group of police officers as well as
his employers from about 12h30 to 04h45;
(e)
the suggestion by the defendant that the plaintiff was questioned as
a witness is unsustainable
as the plaintiff had already been
questioned at the scene of the crime by the police and had deposed to
an affidavit indicating
exactly how the robbery had occurred;
(f)
when Du Preez testified, he gave the impression that he did not know
what was happening
inside the Cato Manor Police Station as both he
and Botha were outside. However, according to both Botha and
Van Tonder,
Botha was inside and present in the room when the
plaintiff was being interrogated;
(g)
the plaintiff was never informed that he could remain silent, nor
were his constitutional
rights explained to him;
(h)
the purpose of the interrogation appeared to be geared towards the
plaintiff implicating
himself, hence the reason why it lasted for
four hours;
(i)
from the time the plaintiff was interviewed by Van Tonder at the
scene until
the time he left Cato Manor Police Station later that
afternoon he did not eat or drink anything and neither was he offered
anything
by the police officers;
(j)
although the plaintiff was never formally charged, it is for these
reasons that
the plaintiff submits he was arrested, detained and
interrogated and that such arrest and detention was unlawful;
(k)
the plaintiff’s version in relation to the assault must be
accepted as the defendant’s
witnesses were not at all honest.
Analysis
[82]
I pause now to consider the aspect of what constitutes an arrest.
The Oxford South African
Concise Dictionary 2ed (2010) defines an
arrest as ‘to seize (someone) by legal authority and take them
into custody’.
Arrest
[83]
Section 39 of the Criminal Procedure Act 51 of 1977 (‘the CPA’)
deals with the manner
and the effect of an arrest. The section
reads as follows:
‘
(1)
An arrest shall be effected with or without a warrant and, unless the
person to be arrested
submits to custody, by actually touching his
body or, if the circumstances so require, by forcibly confining his
body.
(2)
The person effecting an arrest shall, at the time of effecting the
arrest or immediately
after effecting the arrest, inform the arrested
person of the cause of the arrest or, in the case of an arrest
effected by virtue
of a warrant, upon demand of the person arrested
hand him a copy of the warrant.
(3)
The effect of an arrest shall be that the person arrested shall be in
lawful custody
and that he shall be detained in custody until he is
lawfully discharged or released from custody.’
[84]
An arrest involves the restriction of an individual’s freedom.
Section 12(1)(
a
) of the Constitution provides that:
‘
Everyone
has the right to freedom and security of the person, which includes
the right-
(a) not to be
deprived of freedom arbitrarily or without just cause.’.
How must an arrest be
executed?
[85]
Normally contact with a person’s body or person is a
prerequisite for a valid arrest.
The physical touching of a
person to be arrested can be dispensed with only where the suspect
unambiguously subjects himself to
the person attempting to arrest
him. A person’s conduct can support an inference that he
submits to being taken into
police custody. That would be the
case for example where a person readily accompanies the police and
climbs into their vehicle
in order that he be taken to the police
station.
[6]
[86]
Whether or not an arrest is lawful is closely connected to the facts
of each matter. Once
the defendant admits an arrest or a
plaintiff proves an arrest, then the onus to prove that an arrest was
lawful rests on the arresting
officer.
[7]
An arrest effected with the intention not to bring a person before a
court at all, and for other reasons will not be a lawful arrest,
for
example the intention to intimidate and inconvenience a person to
desist from illegal activities is not sufficient to constitute
a
lawful arrest. However, if the person effecting the arrest
intends to bring the arrested person before a court to be tried
and
convicted, the arrest will be lawful. Consequently, it would
appear that even the most reprehensible motive does not
render
unlawful an arrest carried out with the correct intention.
[8]
[87]
In
Tsose v Minister of Justice & others
1951 (3) SA 10
(A)
at 17C-D, Schreiner JA, in following the reasoning in
MacDonald v
Kumalo
1927 EDL 293
at 301 stated the following:
‘
If
the object of the arrest, though professedly to bring the arrested
person before court, is really not such, but is to frighten
or harass
him and so induce him to act in a way desired by the arrestor,
without his appearing in court, the arrest is, no doubt,
unlawful
’.
[88]
In
Rex v Mazema
1948 (2) SA 152
(E) said the following at 154:
‘A person is under arrest as soon as the police assume control
over his movements.’
In that matter it was contended that
the appellant had been detained for purposes of an investigation and
that consequently he
had not been arrested. The court per
Hoexter J held that there is no difference between detaining someone
for purposes of
investigation and detaining someone on suspicion
where no specific charge has yet been formulated against him.
[89]
It appears that the question as to whether or not the police assumed
control over a person with
the intention to arrest is a factual one.
It appears that a similar view was adopted in
Khan v S
2010
JOL 25782
(KZP) para 12 where Swain J said the following:
‘
On
the facts of this case it cannot be said that the police at the
relevant time had assumed control over the movement of the appellant
. . . with the intention to arrest her’
.
However
should the police take a person into custody and treat them as a
suspect for purposes of questioning, such would not be
an arrest.
[90]
The purpose of an arrest has been described as being to bring a
suspect to trial, although the
arrestor has a limited role in that
process.
[9]
In the
Minister of Safety & Security v Sekhoto & another
[2011] 2 All SA 157
(SCA) para 28 the court was of the view that once
the ‘required jurisdictional factors are present’ then
the discretion
whether to arrest a suspect arises. The court
held that the decision to arrest must be based on the intention to
bring the
arrested person to justice and that one must distinguish
between the object of the arrest and the arrestor’s motive. In
this
regard, it was held that:
‘
the
validity of an arrest is not affected by the fact that the arrestor,
in addition to bringing the suspect before court, wishes
to
interrogate or subject him to an identification parade or blood tests
in order to confirm, strengthen or dispel the suspicion’
.
[10]
[91]
The court also held that it is a general requirement that any
discretion must be exercised in
good faith, rationally and not
arbitrarily.
[11]
In considering the distinction that must be drawn between the object
of an arrest and the arrestor’s motive
[12]
,
the court considered the remarks by Schreiner JA in the decision of
Tsose v Minister of Justice & others
1951 (3) SA 10
(A) at
17. Our courts have held that even if the motivation for
detaining or arresting a person is malicious, but the
intention is to
bring the arrested person before a court to be tried and convicted,
the arrest will be lawful. Consequently,
even the most
reprehensible motive cannot render unlawful an arrest which is
carried out with the correct intention, see
Tsose
at 17.
[92]
What constitutes detention? Section 50 of the CPA deals with this and
the period in which a person
may be detained. The sections read
as follows:
'(1)
(a)
Any
person who is arrested with or without warrant for allegedly
committing an offence, or for any other reason,
shall as soon as
possible be brought to a police station or, in the case of an arrest
by warrant, to any other place which is expressly
mentioned in the
warrant.
(b)
A person who is in detention as contemplated in paragraph
(a)
shall, as soon as reasonably possible, be informed of his or her
right to institute bail proceedings.
(c)
Subject to paragraph
(d)
,
if such an arrested person is not released by reason that —
(i) no charge
is to be brought against him or her; or
(ii) bail is not
granted to him or her in terms of section 59 or 59A,
he
or she shall be brought before a lower court as soon as reasonably
possible, but not later than 48 hours after the arrest.
(d)
If the period of 48 hours
expires —
(i) outside
ordinary court hours or on a day which is not an ordinary court day,
the
accused shall be brought before a lower court not later than the end
of the first court
day;
. . .
(6)
(a)
At
his or her first appearance in court a person contemplated in
subsection (1)
(a)
who —
(i) was
arrested for allegedly committing an offence shall, subject to this
subsection and section 60 —
(aa)
be
informed by the court of the reason for his or her further detention;
or
(bb)
be
charged and be entitled to apply to be released on bail; . . .
.'
[93]
This section must be read together with the provisions of section
35(1)(
d
), (
e
) and (
f
) of the Constitution, which
read as follows:
'(1)
Everyone who is arrested for allegedly committing an offence has the
right —
.
. .
(d)
to
be brought before the court as soon as reasonably possible, but not
later than —
(i) 48 hours
after the arrest; or
(ii) the
end of the first court day after the expiry of the 48 hours, if the
48 hours
expire outside ordinary court
hours or on a day which is not an ordinary court day;
(e)
at
the first court appearance after being arrested, to be charged or to
be informed of
the reason for the detention
to continue, or to be released; and
(f)
to
be released from detention if the interests of justice permit,
subject to
reasonable
conditions.'
[94] In
Mashilo & another v
Prinsloo
2013 (2) SACR 648
(SCA) para 13, the Supreme Court of
Appeal held that s 50(1)(
d
) of the CPA was intended to ‘extend
the 48-hour outer limit during which an arrested person could be
detained’ and
obliges police to bring a person to court as soon
as is reasonably possible.
[13]
[95]
The question which arises for determination in this matter in light
of the defendant’s
plea and defence is whether the plaintiff
has been ‘deprived of his freedom’ in any way with the
intention to assume
control over his movements. Once the
plaintiff establishes that he has, then the onus shifts to the
defendant to show that
the deprivation of freedom was not arbitrary
and was justified. See in this regard
Minister of Safety &
Security and Another v Swart
2012 (2) SACR 226
SCA para 19.
[96]
In addition the lawfulness of an arrest or the deprivation of
individual freedom of movement
is closely connected to the facts of
each situation. In
Minister of Safety & Security v Van
Niekerk
2008 (1) SACR 56
(CC) para 20 the court held the
following:
‘
I
conclude therefore that nuanced guidelines already exist. In
the circumstances it would not be desirable for this court
to attempt
in an abstract way divorced from the facts of this case, to
articulate a blanket, all-purpose test for constitutionally
acceptable arrests. As the guidelines themselves underline, the
lawfulness of an arrest will be closely connected to the
facts of the
situation
.’
[97]
The purpose of an arrest is to ensure that a person is taken to
court, in
Minister of Safety & Security v Sekhoto
, after
considering the jurisdictional facts for an arrest without a warrant,
the Supreme Court of Appeal held that the decision
to arrest must be
based on the intention to bring an arrested person to justice.
[98]
An arrest or a detention will be unlawful if the purpose thereof is
to force or compel a suspect
to make a warning statement and not to
secure his attendance in court. In such an instance the
detention or arrest is utilised
to force a suspect to abandon their
rights to silence in violation of s 35(3)(
h
) of the
Constitution(
Ramphal v Minister of Safety and Security
2009
(1) SACR 211
(E)
para 11).
[99]
But if the person effecting the arrest is a peace officer, and he
entertains a reasonable suspicion
that a person has committed a
Schedule one offence, it is not necessary that he intends to
bring the arrested person before
a court in order to charge him. It
is sufficient in such circumstances to intend to detain the suspect
in order first to investigate
the case and then, depending on the
result of the investigation, to either bring him before a court to be
charged or release him.
This qualification of the general rule on the
one hand results from the element of uncertainty implicit in the
concept of ‘suspect’
in s 40(1)
(b)
of the CPA
.
On the other hand, it must be seen in the context of the rewording of
s 50 of the CPA.
[100]
In contrast with its predecessors, s 50 of the CPA contemplates the
possibility of the release of a suspect after
detention if further
investigation has revealed no proof to substantiate a
prima facie
case against the suspect (
Duncan v Minister of Law and Order
1986
(2) SA 805 (A)
819H–820E). However, should the
person effecting the arrest not intend to bring the detainee before a
court at all, and arrests
him exclusively for other reasons, the
arrest will not be lawful for purposes of s 40(1)
(b) (Duncan v
Minister of Law and Order
1984
(3) SA 460 (T)
465
et seq
).
[101] If, however, despite such malicious motivation, the
person effecting the arrest intends to bring the arrested
person
before a court to be tried and convicted, the arrest will be lawful.
[102] The question to be decided in this matter is a
factual one, namely whether on the facts of this matter the police
assumed control over the plaintiff and consequently arrested the
plaintiff, detained him and assaulted him.
[103]
There appears to be a factual dispute based on the evidence tendered,
namely the evidence of the plaintiff when
considered against that of
the defendant’s witnesses. In assessing the evidence
tendered, the credibility of witnesses
and their reliability and
probabilities are apposite. To assess the evidence of a witness
the court held per Zulman JA in
Santam Bpk v Biddulph
2004 (5)
SA 586
(SCA) para 10 the following:
‘
The
proper test is not whether a witness is truthful or indeed reliable
in all that he says, but whether on a balance of probabilities
the
essential features of the story which he tells are true
.’
[104]
In this matter having regard to the evidence of all the witnesses,
there are irreconcilable factual disputes.
To resolve apparent
irreconcilable factual disputes, the test was formulated by Nienaber
JA in
Stellenbosch Farmers’ Winery Group Ltd & another v
Martell Et Cie
& others
2003 (1) SA 11
(SCA) para 5 as
follows:
‘
To
come to a conclusion on the disputed issues a court must make
findings on
(a)
the
credibility of the various factual witnesses;
(b)
their reliability;
and
(c)
the
probabilities. As to (
a
),
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the
witness.
That in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i)
the witness’
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in
his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own
extracurial statements or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre
and cogency of his performance compared to
that of other witnesses testifying about the same incident or
events. As to (
b
),
a witness’ reliability will depend, apart from the factors
mentioned under (
a
)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality,
integrity and
independence of his recall thereof. As to (
c
),
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of (
a
),
(
b
)
and (
c
)
the court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in another
.’
[105]
In my view, the difficulty which faces the plaintiff is the
following. At the time of his initial interview by
the police where
he was ‘dropped off’ by the thieves, he was not a
suspect. A statement was taken from him at that
scene and he was
released into the custody of his employer. It was only after he and
his fellow employees were interviewed by his
employer that suspicions
were entertained as to his alleged involvement. These were suspicions
of his employer not the police.
It was only after he and his
co-workers failed the polygraph tests that they were then taken to
the police to be further interviewed.
This was at the behest of the
plaintiff’s employer.
[106]
The witnesses for the plaintiff’s employer testified that among
the concerns they had was whether the insurance
company would pay
given the circumstances in which the robbery occurred. The further
assistance of the police was sought by the
plaintiff’s employer
to inter alia clarify how the robbery occurred. This was not only in
relation to the plaintiff but also
his crew. The plaintiff and his
crew were transported to the police station by his employer.
[107]
From the evidence presented, the plaintiff willingly accompanied his
employer to the police station. He was not
arrested or detained nor
were any charges put to him. From the evidence presented he could
have asked to leave at any stage. The
evidence and the probabilities
favour this version as on the plaintiff’s version, after the
interview, he was allowed to
leave the room and waited outside on his
own within view of the police officers. This is inconsistent with his
version as to what
transpired but consistent with the version of the
defence witnesses.
[108]
In addition, one would have expected him to have reported this
assault immediately after he was released if in
fact it did occur.
The evidence of Du Preez was that the plaintiff travelled back to the
SBV offices in Greyville with him in complete
silence. On the
plaintiff’s version Du Preez had taken his car keys from
him and on their arrival handed these to Inspector
Nzama. Nzama
removed the plaintiff’s cell phone from the plaintiff’s
vehicle. The plaintiff remained in his vehicle
until he was driven
home by a colleague. Once Nzama and Du Preez had left and on the
arrival of his colleague, he was alone with
him and there was nothing
which prevented him from reporting this assault or what had
transpired at the Cato Manor Organised Crime
offices to the colleague
who drove him home.
[109]
What is also surprising about the plaintiff’s conduct is that a
few days after the incident he was hospitalised.
He then applied for
temporary medical boarding and then full medical boarding. Why do
this if he was assaulted by the police in
the presence of his
employer? Why remain in their employment and interact with them after
the “incident” if on his
version they were present
throughout? What is also noteworthy is that his crew were taken to
the police station and interviewed
in a similar fashion as the
plaintiff, yet none of them instituted proceedings against the
defendant nor complained about the conduct
of members of the
defendant and or their employer.
[110]
On the facts of this matter the plaintiff voluntarily provided an
initial statement at the scene, and, at that
stage it was a witness
statement. Subsequently, he attended a polygraph test at the
instance of his employer, which he and
some of his crew failed.
He voluntarily accompanied his employer to the offices of SAPS where
he was questioned.
On the probabilities the
plaintiff was treated as a suspect at this stage as the assistance
was sought of SAPS by his employer
to find out what exactly had
transpired. His employer was concerned that apart from failing
the polygraph test, the plaintiff’s
response to questions
raised more questions than answers as to how in fact the robbery
occurred.
[111]
In my view although the witnesses did not specifically say so the
plaintiff’s employer considered him a
suspect and based on
this, so did the police. He was interviewed at the police
station and not arrested as there was no evidence
to support that he
was arrested. He was not issued with a SAP14 A, and he was not held
in the police cells. The interaction between
the plaintiff and the
defendant’s officers was limited to purposes of questioning and
when it became clear that there was
no evidence against him in order
for him to be charged for the commission of the offence, he was
released. As such, on the totality
of the evidence, the plaintiff was
not arrested nor detained.
[112]
Turning now to the assault. There is no evidence apart from the
testimony of the plaintiff that he was assaulted.
TheJ88 that was
completed revealed nothing untoward nor did the plaintiff submit to
an examination by a medical practitioner at
the time of his admission
to hospital a few days after the incident. In addition neither did he
deem it appropriate to lay criminal
charges against the members in
question nor did he deem it prudent to lodge a formal complaint with
the Independent Police Investigative
Directive(IPID).
[113]
He did not testify to sustaining any injuries as a consequence of the
alleged assault and most notably his evidence
of how the assault
occurred does not accord with the pleadings. In the particulars of
claim it was pleaded that he was assaulted
inter alia
by means
of ‘striking him with rubber tubing on his body’. When he
testified, the plaintiff did not testify that he
was struck with
rubber tubing on his body. On the probabilities, given the pleadings
that he was struck on his body one would have
expected him to have
sustained visible injuries.
[114]
In addition the plaintiff’s version in relation to where
precisely he was questioned is in conflict with
that of the
defendant’s witnesses. If an assault had taken place then
the questioning would not have taken place in
the open plan office in
full view of all the policemen as well as other persons present where
there was ease of access. In addition
on the plaintiff’s
version after he was questioned he was allowed to leave the room and
sit outside and await for transportation
back to his employers
offices. Such conduct is inconsistent with his version that he
was assaulted.
[115]
On the probabilities the plaintiff was not arrested or detained nor
was he assaulted. Even if I am incorrect in
reaching the conclusion
that he was not detained, then at worst for the defendant he was held
as a suspect for questioning and
when it became evident that there
was no evidence against him he was then released and transported by
his employer back to the
SBV offices in Greyville. In the result on
the probabilities the plaintiff has not discharged the onus of
proving that he was arrested,
detained and assaulted by members of
the defendant.
Costs
[116]
In my view there is no reason to depart from the usual rule in
relation to costs and given that the plaintiff
has been unsuccessful
in the action against the defendant, costs ought to follow the result
and include any reserved costs.
Conclusion
[117] In the
result the following order will issue:
The plaintiff’s
claim is dismissed with costs, such costs to include any reserved
costs.
Henriques J
CASE
INFORMATION
APPEARANCES
Counsel for
the Plaintiff
: Advocate K
Naidu
Instructed
by
: M B
Gumede & Associates
14 B Salmon Grove Chambers
407 Anton Lembede Street
Durban
Ref:
Tel: (031) 305 3824/5
Fax: (031) 304 9657
Email:
mbgumede@telkomsa.net
Counsel for
the Defendant
: R R
Kisten
Instructed by
: State
Attorney (KZN)
6
th
Floor Metropolitan Life Building
391 Anton Lembede Street
Durban
Ref: 12/6675/07/G/P23MP
Dates of Hearing
: 4 &
5 August 2014;
7 September 2016;
15 March 2017;
3, 4 & 5 May 2017;
8 May 2017.
Plaintiff’s
written Submissions
: 27
February 2019; 3 April 2019;
4 April 2019.
Date
of Judgment
: 19 July
2019
[1]
Transcript lines 8-12 page 27.
[2]
See Exhibit ‘C’ page 27.
[3]
Exhibit ‘B’, page 26.
[4]
Transcript, lines 4-5, page 29.
[5]
The undisputed evidence was that the polygraph tests were conducted
by Vic Panday not a member of SAPS.
[6]
Theobald v Minister of Safety and Security & others
2011
(1) SACR 379
(GSJ) para 292.
[7]
Minister of Safety and Security & another v Swart
2012
(2) SACR 226
(SCA) para 19.
[8]
Tsose v Minister of Justice & others
1951 (3) SA 10
(A)
para 17;
Minister of Safety and Security v Sekhoto & another
2011 (1) SACR 315
(SCA) para 31.
[9]
Minister of Safety & Security v Sekhoto & another
[2011] 2 All SA 157
(SCA) para 44.
[10]
Minister of Safety & Security v Sekhoto
para 31.
[11]
Minister of Safety & Security v Sekhoto
para 38.
[12]
Minister of Safety & Security v Sekhoto
para 31
[13]
Mashilo & another v Prinsloo
2013 (2) SACR 648
(SCA) para
15.