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[2019] ZAECMHC 35
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Gininda v Minister of Safety & Security (1322/2016) [2019] ZAECMHC 35 (25 June 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO.: 1322/2016
In
the matter between:
JUSTICE
GININDA Plaintiff
And
MINISTER OF SAFETY &
SECURITY Defendant
JUDGMENT
JOLWANA J
Introduction
[1] Plaintiff instituted
an action for damages for unlawful arrest and detention as well as
assault. However, counsel for
the plaintiff indicated at the
commencement of the proceedings that the claim in respect of assault
was being abandoned, and that
only the claim for unlawful arrest and
detention would proceed.
[2] Plaintiff was
arrested by the police without a warrant on 13 October 2015 for
possession of suspected stolen property.
He was detained at
Cofimvaba Police Station until he appeared at Cofimvaba Magistrates’
Court on 15 October 2015 where he
was released on bail.
[3] The defendant
admitted the arrest and detention but the unlawfulness thereof was
denied. Defendant pleaded that plaintiff
was arrested together
with other people as they were suspected of having participated in
the theft of various items of clothing
and foodstuff from various
shops in Cofimvaba. Furthermore plaintiff was allegedly found
in possession of suspected stolen
goods and therefore his arrest was
justified in terms of section 40 of the Criminal Procedure Act 51 of
1977 (the
Criminal Procedure Act). The
pleaded basis in
justification of the detention was that the state needed to do the
necessary investigations for purposes of bail.
The facts
[4] The defendant called
sergeant Walter Mandla Tyalimpi who testified that on 13 October 2015
he was doing patrol duties in town
in Tsomo with sergeant Jojwana and
his other colleagues who were in another vehicle also doing patrols.
He received a call
from his commander instructing him to mount a mini
road block at 40 Junction in Tsomo. He was told that there were
three
cars that were coming from Cofimvaba which were suspected to
have stolen goods.
[5] He then phoned his
colleague sergeant Zonwabele Ntombini who was also doing patrols in
Tsomo in another car asking him to assist
in the road block that he
was going to conduct. The two vehicles proceeded to 40 Junction
which is between Tsomo and Cofimvaba.
They mounted the
roadblock and the first car that appeared was an unmarked police
vehicle from Cofimvaba Police Station which they
knew.
[6] Warrant officer
Maninzi alighted from that vehicle and informed them that the
vehicles which were suspected to have stolen goods
were on the way
behind him. He described the first vehicle that was coming as a
silver grey honda ballade whose registration
number he now no longer
recalls but was given to him by warrant officer Maninzi. Indeed
the vehicle as described to them
by warrant officer Manzini appeared
and they stopped it. It had five occupants including the driver
being two males and three
females. Sergeant Ntombini ordered
the occupants to alight and lie down and they obliged.
[7] Thereafter two other
vehicles appeared being a red polo and a black getz which were also
stopped and their occupants were also
ordered to alight and lie
down. The occupants of all the vehicles were searched and
nothing was found on them. The
vehicles were also searched and
all of them were found to have goods which they suspected to have
been stolen.
[8] The plaintiff was in
the first car, the silver grey honda ballade. In the
plaintiff’s vehicle they found a lot of
goods like body
lotions, toughies shoes and clothing like school trousers which were
new and in bulks and some still had price
tags on them. The
body lotions were still in their original packaging and wrapping.
They were asked to explain the
possession of the goods and they said
the goods belonged to all of them. In other vehicles baby
formula and other goods were
found some of which were also still in
their original packaging. When plaintiff and his passengers
could not give a satisfactory
explanation for the goods and could not
produce proof of purchase they were all arrested for being in
possession of suspected stolen
property.
[9] After arresting the
plaintiff and his passengers as well as the people in the red polo
and black getz vehicles they proceeded
from 40 Junction to Cofimvaba
Police Station. The registration of the goods and the opening
of the cases took sometime as
there were fifteen suspects being five
from each vehicle and all three vehicles had different types of
goods. It was after
17:00 when the arrest took place and they
were taken to Cofimvaba Police Station where the goods were entered
into the SAP13 exhibit
book.
[10] He testified that as
a police officer he was entitled and authorized in terms of
section
40
of the
Criminal Procedure Act to
effect an arrest without a
warrant where evidence could be lost if he applied for a warrant.
The suspected stolen goods were
there and the plaintiff and his
passengers failed to give an explanation or to produce proof of
purchase. While they were
at Cofimvaba Police Station but
before they were detained he also asked them to explain where they
got the goods from as some of
the items still had their tags from Pep
Stores. This was after the manager of Pep Stores at Cofimvaba
had arrived at the
Police Station and confirmed that the goods
belonged to Pep Stores. On this basis he denied that the arrest
and detention
were unlawful.
[11] The detention was
not unlawful because the plaintiff and his co arrestees were made to
appear in court on 15 October 2015 which
was within 48 hours of their
arrest. He also testified that he did not know why they did not
appear in court the following
day after they were arrested.
[12] Under cross
examination he testified that his commander did not tell him how the
theft of the said goods was committed, he
just asked him to assist in
conducting a road block for vehicles that were suspected to have
stolen goods. He did not personally
search the plaintiff nor
did he personally question him. He saw the goods that were
found in plaintiff’s vehicle.
He arrested the plaintiff
and the other people that were arrested for being found in possession
of suspected stolen goods.
[13] It was put to him
that plaintiff would say that he was not arrested by him and that he
had given an explanation to the person
who arrested him. He
testified that he personally arrested plaintiff and all of the other
suspects as they did not give an
explanation for the goods that were
found in their vehicles. He denied that plaintiff had explained
that he had given a lift
to passengers and said such an explanation
was not given to him. At Cofimvaba Police Station they were
asked to stand next
to the car that each person travelled in.
He was satisfied that they were involved in the commission of the
offence as they
all failed to give him an explanation for the
possession of the goods.
[14] He denied that he
arrested the plaintiff and his passengers and other people in the
other cars on instructions from his superiors
and said that he had
sufficient evidence being the goods that were found which led to the
arrest. He testified that warning
them to appear in court was
not an option as at that stage the police did not know where they
stayed and the address that plaintiff
gave still needed to be
verified.
[15] The second witness
for the defendant was Zonwabele Ntombini, a police officer from Tsomo
Police Station. He testified
that on 13 October 2015 he was on
duty doing patrols in Tsomo. He received a call from sergeant
Tyalimpi saying that their
commander, warrant officer Mnqojana was
asking them to assist Cofimvaba police at 40 Junction. There
were vehicles from town
in Cofimvaba which were carrying suspected
stolen goods.
[16] He and sergeant
Tyalimpi proceeded to 40 Junction in two different cars. They
stopped at 40 Junction and waited for the
cars that had been
described to them. A police vehicle arrived first. Later
a silver grey honda ballade which was one
of the suspected vehicles
appeared. They stopped it. Thereafter a red polo vehicle
followed by a black getz vehicle
also appeared which had also been
described to them. Those vehicles were followed by a police
vehicle. The vehicles
were stopped and each had three females
and two males. In the boot of the silver grey honda ballade
they found a lot of goods
which appeared to be from shops.
[17] The goods were still
new and in their packaging. It was clothing, body lotion, baby
formula, soap, shoes and slippers.
They asked for proofs of
purchase which were not produced and no explanation for the
possession of the goods was given. They
informed the occupants
that they had information that those goods had been stolen from
Cofimvaba shops. Sergeant Tyalimpi
told all of them that they
were being arrested for possession of suspected stolen goods as they
failed to produce proof of purchase
or explain how they came to be in
possession of those goods.
[18] The goods were
recorded in the SAP13 register as exhibits. He testified that
the reason for the plaintiff’s arrest
was that they had
received information that there were three cars from Cofimvaba which
had suspected stolen goods. When they
stopped the said vehicles
indeed goods were found and they were not given an explanation as to
where the goods came from.
They did not produce proof of
purchase and the goods were found in the vehicles that had been
described to them. The arrest
was based on the fact that they
suspected the goods to have been stolen.
[19] They told the
plaintiff and the other suspects that their information was that the
goods were suspected to be stolen.
He denied that the arrest of
the plaintiff was unlawful in the circumstances. Under cross
examination he testified that the
female passengers in the silver
grey honda ballade owned up to the goods but the plaintiff did not
distance himself from the goods.
The plaintiff who was the
driver never said anything. He testified that if plaintiff had
given an explanation to his colleagues
that he had merely given a
lift to the other passengers, his colleagues would have told him
about his explanation. The defence
closed its case after this
witness.
[20] The plaintiff
testified that he normally picked up hitchhikers to raise money for
fuel, sometimes at or near PRD building in
Mthatha when he drove to
Cofimvaba or Queenstown. On 13 October 2015 he drove from
Mthatha to Cofimvaba looking for business
opportunities. As he
was leaving Mthatha he picked up four people who were going to
Engcobo and their fare helped him to
put petrol in his car. He
went to a block of flats behind Boxer Super Stores in Engcobo looking
for office space. The
owner of the flats was not there.
He proceeded to Cofimvaba also looking for office space and drove
around town. He
thereafter drove to Capitec Bank to deposit
some money as he had debit orders that deducted on 15
th
.
This is when he received a call from his neighbour Zanele enquiring
about his whereabouts because she knew that he normally
offered lifts
on the Engcobo, Cofimvaba, Queenstown route. He told Zanele
that he was at Capitec Bank and would be going
to Mthatha.
[21] Zanele asked him to
pick her up next to Boxer Super Sores and would get other passengers
for him. After doing his banking
he drove to Boxer Super Stores
where he found Zanele with two ladies and a gentleman. He gave
them a lift and they left for
Mthatha. At 40 Junction on the
way to Mthatha there was a police road block and police stopped him
and pointed firearms at
him. He was dragged out of his vehicle,
assaulted and told to lie down on his stomach. He was
handcuffed and told to
keep quite. The vehicle was searched and
he asked the police what was happening. Police asked who the
owners of the
goods were. He asked them where were the goods
and he was told that the goods were found on the back passenger seat
of his
car.
[22] He testified that
sergeant Tyalimpi was lying to say that the goods were found in the
boot of his car. Everybody except
for himself was told to stand
next to their belongings. The man who had been sitting behind
him took his backpack and the
ladies took their “no problem”
bags. Two of the ladies had been sitting at the back with the
gentleman.
He was placed next to the car and handcuffed.
He was asked where he was coming from and he said he was coming from
Cofimvaba.
Sergeant Tyalimpi was not the one who asked him
questions. He said he only knew Zanele who had phoned him and
had given a
lift to Zanele and the other passengers. The police
officer who questioned him said he was arresting them for possession
of suspected stolen goods. He told that policeman that he only
gave a lift to his passengers. On the way to the police
station
when it was only the two of them in the vehicle, the police officer
asked him again and he gave him the same explanation.
The name
of that officer was Lonwabo and he is the one who arrested him.
[23] That officer asked
him what he did for a living. He told him that he owned a
security company. He installed car
alarms, motorized gates and
electric fences. At Cofimvaba Police Station they were
humiliated in front of the members of
the public and members of the
public were allowed to take their photographs using their
cellphones. They waited at the parking
space at the police
station standing there for three hours. When they asked what
they were waiting for, police said they
were waiting for a manager
from Pep Stores. The manager from Pep Stores eventually
arrived.
[24] Police registered
all the items after which the goods were handed back to their owners
and they were told that they were being
arrested. He asked why
he was being arrested and the police said he would be exonerated by
the ladies in court because if
he was released the ladies could later
say the goods belonged to him. He never saw sergeant Tyalimpi.
They were told
that the police would get stationery from Tsomo Police
Station and the ink for finger prints. He was not allowed to
call
his lawyer. After 21:00 they were told that they would be
detained without being charged because there was no stationery.
[25] The cell in which he
was detained was over crowded, smelly and had no beds or blankets.
At that time he was on medication
which was in his vehicle. In
the middle of the night he asked the police officers who had come to
count them to fetch his
medication from his vehicle and they
refused. On the 14 October 2015 they were detained the whole
day. Police again
came at midnight and again he asked for his
medication and again they refused to fetch it from his vehicle.
On the 15 October
2015 they were loaded in a big truck and taken to a
court cell where they were separated and paperwork for their arrest
was done.
In court he was granted bail of R250.00. On
each court appearance their numbers dwindled until only three of them
were left.
On 11 April 2016 only he and Zanele were left and
charges against them were withdrawn.
[26] Under cross
examination he testified that even in 2015 at the time of his arrest
they were neighbours with Zanele in Mayden
Farm in Mthatha.
When he was arrested he was clapped with an open hand and was kicked
on his face and sustained a minor injury
in the form of a bruise.
He did not know the people in the red polo and black getz vehicles
and was surprised when he saw
the other items that were taken out of
those cars. He was surprised that those vehicles and his
vehicle all had suspected
stolen goods. He never asked Zanele
who had brought those people to his vehicle who they were because she
knew Zanele very
well.
[27] In Cofimvaba he
drove around for less than 30 minutes looking at the set-up of the
town. He never saw the polo and the
getz vehicles when he was
driving around. In his security company business he has four
consultants, two telemarketers, one
receptionist and he is the CEO of
the company. In relation to his personal information that was
recorded by the police, he
testified that police did not ask him
about some of the information that they recorded. For instance
his marital status being
reflected as unmarried and his business
address as being not applicable and him being reflected as
unemployed.
[28] His explanation that
he had given a lift to those people and that what was found in his
car was not his property was not written
anywhere. He told the
police that he would make his statement to his lawyers. He
testified that the signature purportedly
appended by him on SAPS 14A
Notice of Rights in Terms of the Constitution form was not his
signature.
[29] He testified that
the reason he was claiming R400 000.00 in respect of his arrest and
another R400 000.00 for his detention
is that when he was arrested he
was on a mission to make business. He lost business because his
clients could not get hold
of him for three days. He was on
medication and when he came out of detention he had to see doctors
several times.
He had several visits to the doctor but could
not remember how much it cost him as he was in and out of the
doctor’s surgery.
[30] The second witness
for the plaintiff was his neighbour Zanele Sotshongaye. She
testified that on the 13 October 2015
she was in Cofimvaba and needed
a lift to Mthatha. She went to the taxi rank and the taxi had
one passenger. She decided
to go to the hiking spot in front of
Pep Stores opposite Boxer Stores. While waiting for a hike she
thought of a car that
normally gave her a lift when she needed a hike
to Cofimvaba. She phoned the plaintiff who told her that he was
at Capitec
Bank in Cofimvaba. They discussed the lift and the
plaintiff told her to wait for him at the hiking spot.
[31] She saw a male
person who was also hitch hiking to Mthatha as well as two females
who also said they were going to Mthatha.
They all waited there
and plaintiff arrived after about 15 minutes. They all got a
lift from the plaintiff and drove to Mthatha.
They left
Cofimvaba at about 15:15. On the way to Mthatha they saw a man
standing on the white line on the road pointing
a firearm at them
ordering them to get off the road.
[32] Plaintiff was
dragged out of the car and the police told all of them to get out of
the car and lie down. They remained
there on the ground for
about 30 minutes and she could hear the police talking about other
cars that were still coming. When
those other cars arrived
their occupants were also taken out of their vehicles. They did
not know what was going on.
They were all loaded into a police
vehicle and taken to Cofimvaba Police Station.
[33] In Cofimvaba Police
Station they were made to stand in a line in a big open space in
front of the police station. Each
person was ordered to take
their items. She took her purse, the male passenger took his
backpack and each lady took her “no
problem” bag.
The bags were emptied on the ground. A policeman came and asked
who the owner of those items was
and one lady claimed ownership of
the goods. They were taken into a small office in the police
station where they stayed
not knowing what was happening.
[34] They were together
with the plaintiff in that room. They were told that they were
being arrested but were not told the
reason for their arrest.
Police would not allow them to make calls. At some stage they
were loaded into a police vehicle
and taken to Tsomo Police Station.
Tsomo police said they did not want them and were returned to
Cofimvaba Police Station
where they were detained.
[35] Under cross
examination she testified that it was after 21:00 when they were
taken to Tsomo Police Station. She did not
see the plaintiff
being assaulted to 40 Junction because she was far away from him.
She did not see the red polo and black
getz vehicles when they
arrived as she had been made to lie down next to the wheel. She
did not see the police when they
searched the honda ballade, the polo
and the getz vehicles.
[36]
They were never told why they were being arrested, the police only
told them that they were being arrested. When she
asked why was
she being arrested she was told that she would argue the reason for
the arrest in court. When it was pointed
out to her that her
warning statement which she signed shows that they were informed that
the police were investigating theft,
she said they were only informed
at night. After Ms Sotshongaye’s evidence the plaintiff’s
case was closed.
The issues
[37] In respect of
unlawful arrest the plaintiff’s claim is pleaded as follows in
his particulars of claim:
“
On
or about the 13
th
day of October 2015 at Tsomo junction, Tsomo, within the area of
jurisdiction of the Honourable Court, the plaintiff was arrested
without a warrant of arrest by the other members of Cofimvaba Police
Station the South African Police Services whose names and
ranks are
unknown to him. During the arrest the plaintiff was fastened
with police handcuffs at Tsomo junction, Tsomo and
was taken to
Cofimvaba Police Station.”
[38] In respect of
unlawful detention, plaintiff’s claim is pleaded as follows:
“
On
or about the 13
th
day of October 2015 and at Cofimvaba Police Station, Cofimvaba, in
the Eastern Cape Province, the members of the Cofimvaba Police
Station who was and are employed by the defendant wrongfully and
unlawfully detained the plaintiff without any just cause and without
being in possession of warrant of detention. The plaintiff was
detained as from 13
th
October 2015 until 15
th
October 2015. However, he first appeared on the 15
th
October 2015 facing a charge of possession of suspected stolen
properly, and was released on bail of R250.00”
[39] The defendant denied
that the arrest and detention were unlawful and pleaded its defence
as follows:
“
10.2
The plaintiff together
with other people with whom he was arrested participarted in the
theft of various clothing and food item
from various shops at
Cofimvaba in the presence of a member of the South African Police
Service.
10.3
When the plaintiff was
arrested he was found in possession of various clothing and food
items which members of the South African
Police Services reasonably
suspected that he had stolen or had dishonestly obtained.
10.4
The arrest of the
plaintiff without a warrant of arrest was therefore lawful in terms
of
section 40
of the
Criminal Procedure Act no. 51 of 1977
.”
[40] The defence in
respect of unlawful detention is pleaded in part as follows in the
defendant’s plea:
“
11.1
…
.The
defendant avers that the plaintiff was arrested and detained upon
evidence that he had committed the offences for which he
was charged
and for the state to do the necessary investigations for purposes of
bail.
11.2
In further amplification
the defendant avers that the period of detention of the plaintiff was
permissible in law.
11.3
The plaintiff was
detained from 18h50 on the 13 October 2015 and appeared in court on
the 15 October 2015 where bail was granted.
11.4
The defendant denies that
the plaintiff was wrongfully and unlawfully detained without just
cause. The contentions made in
paragraphs 10.2 to 10.4 above
are repeated herein.”
[41] If regard is had to
the particulars of claim it would seem that the claim in respect of
unlawful arrest is based on plaintiff
having been arrested without a
warrant. In other words plaintiff’s basis for the alleged
unlawfulness of his arrest
is the fact that it was effected without a
warrant authorizing the same. There is no other basis pleaded for
this claim.
I will in any event also deal with whether, even if
the arrest was without a warrant, it was in any event justified or
not.
The issue for determination in this matter is whether or
not, the arrest and detention having been admitted, were effected in
a
lawful manner. The onus to justify the arrest and detention
rests upon the defendant.
[42]
In
Minister
of Police and Another v Du Plessis
[1]
the legal position in this regard was stated as follows:
“
[14]
Police bear the onus to justify an arrest and detention.
In
Minister of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(A) 589 E-F the following is stated:
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justice in law.’
[15] Our new
constitutional order, conscious of our oppressive past, was designed
to curb instrusious upon personal liberty which
has always, even
during the dark days of apartheid, been judicially valued and to
ensure that the excesses of the past would not
recur. The right
to liberty is inextricably linked to human dignity. Section 1
of the Constitution proclaims as founding
values, human dignity, the
achievement of equality and the advancement of human rights and
freedoms. Put simply, we as a
society place a premium on the
right to liberty.
[16] In
Zealand v
Minister of Justice and Constitutional Development and Another
2008(2) SACR 1 (CC) (2008(4) SA 458; 2008(6) BCLR 601) para 24 the
following is said:
‘
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily
or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case for the applicant
simply
to plead that he was unlawfully detained. This he did.
The respondents then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.’
[17] Justification for
the detention after an arrest until a first appearance in court
continues to rest on the police. Counsel
for the appellants
rightly accepted this principle. So, for example, if shortly
after an arrest it becomes irrefutably clear
to the police that the
detainee is innocent, there would be no justification for continued
detention.”
[43]
Section 40
of the
Criminal Procedure Act on
which the pleaded justification for the
plaintiff’s arrest is founded provides that:
“
40.
Arrest by peace officer without warrant
(1)
A peace officer may without 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;”
[44] It is not in dispute
that plaintiff was arrest on suspicion of having committed theft.
This appears both in the defendant’s
plea as well as the
relevant docket which had been discovered and furnished to the
plaintiff. Theft for which plaintiff was
arrested is an offence
referred to in Schedule 1 of the
Criminal Procedure Act.
[45
] The evidence of
sergeant Tyalimpi is that the three vehicles that were stopped in
that road block at 40 Junction including plaintiff’s
vehicle
had 15 occupants including drivers. In all three vehicles
suspected stolen goods were found and he arrested all of
them.
The plaintiff’s version is that he was arrested by sergeant
Lonwabo Sisusa. That both Sergeants Tyalimpi
and Sisusa are
police officers is common cause. It is also common cause that
the arrest was effected without a warrant.
The only issue is
whether in the circumstances the arresting officer could have
entertained a reasonable suspicion that plaintiff
had committed
theft.
[46]
In
Mabona
v Minister of Law and Order and Others
[2]
Jones J explained a reasonable suspicion envisaged in
section
40(1)(b)
of the
Criminal Procedure Act in
the following terms:
“
The
test of whether a suspicion is reasonably entertained within the
meaning of
s 40(1)(b)
is objective (
S v
Nel and Another
1980(4) SA 28 (E) at
33H). Would a reasonable man in the second defendant’s
position and possessed of the same information
have considered that
there were good and sufficient grounds for suspecting that the
plaintiffs were guilty of conspiracy to commit
robbery or possession
of stolen property knowing it to have been stolen? It seems to
me that in evaluating his information
a reasonable man would bear in
mind that the section authorizes drastic police action. It
authorizes an arrest on the strength
of a suspicion and without the
need to swear out a warrant, ie something which otherwise would be an
invasion of private rights
and personal liberty. The reasonable
man will therefore analyse and assess the quality of the information
at his disposal
critically and he will not accept it lightly or
without checking it where it can be checked. It is only after
an examination
of this kind that he will allow himself to entertain a
suspicion which will justify an arrest. This is not to say that
the
information at his disposal must be of sufficiently high qualify
and cogency to engender in him a conviction that the suspect is
in
fact guilty. The section requires suspicion but not certainly.
However, a suspicion must be based upon solid grounds.
Otherwise, it will be flighty or arbitrary and not a reasonable
suspicion.”
The analysis of the
evidence
[47] The evidence of
sergeant Tyalimpi was that at 40 Junction he and his colleagues
mounted a roadblock. The first car to
appear was an unmarked
police vehicle which was known to them. Warrant officer Maninzi
alighted from that vehicle and told
them that vehicles that were
suspected to have stolen goods were coming behind him. The
first vehicle was a silver grey honda
ballade. Indeed the said
vehicle as described appeared. They stopped that vehicle and
ordered its occupants to get
out and lie down. There were two
male and three female occupants in the vehicle. Thereafter a
red polo and a black
getz vehicles also appeared which had also been
described. Those two vehicles were also stopped and all the
occupants were
ordered to get out and lie down.
[48] They searched the
occupants of those vehicles and found nothing on them. The
vehicles were thereafter searched and a
large quantity of goods were
found in the vehicles. They suspected that the goods had been
stolen. The plaintiff was
in the first car, the silver grey
honda ballade. In the plaintiff’s vehicle they found a
large quantity of body lotions,
toughies shoes, school trousers and
other items. Some of those items were still wrapped in their
original packaging and some
of them still had price tags. The
plaintiff and his passengers did not produce proof of purchase nor
did they explain the
possession of the goods.
[49] In the other two
vehicles similar goods were also found in large qualities as well and
no proof of purchase was produced.
No explanation was given
about the possession of those goods. On the basis of the goods
found in plaintiff’s vehicle
and the other vehicles with no
proof of purchase or explanation, all occupants of all three vehicles
were arrested for possession
of suspected stolen property. They
were all taken to Cofimvaba Police Station where they were charged
with theft and detained.
It was at about 17:00 when the arrests
were effected.
[50] In his evidence the
plaintiff testified that he should not have been arrested because at
40 Junction where he was arrested
he told the police that he had only
given a lift to his passengers, he had nothing to do with the goods
that were found in his
vehicle. There are a number of problems
with the plaintiff’s evidence. For instance he testified
that his boot
was empty and the police told him that the goods were
found in the rear passenger seats of his car. This makes no
sense because
the amount of goods that were found in his car suggests
that he would have known that his passengers had a lot of goods.
The full details of the goods are clearly stated at page 153 of the
police docket that was discovered in these proceedings.
Some of
those goods were identified by a manager from Pep Stores as belonging
to Pep Stores. Some other items were not identified.
[51] On his own version
plaintiff had four passengers, one passenger in front and three
passengers at the back. It is difficult
to imagine how that
amount of goods could still be in the passenger seats at the back
while the boot was empty. It is more
likely to be true that the
goods were found in the boot of his car as defence witnesses
testified. Plaintiff’s evidence
in many ways was beyond
just contradictions and was simply unbelievable and improbable.
[52] He maintained that
already at 40 Junction he told the police that he had given a hike to
his passengers and had nothing to
do with the goods. Very
strangely, in his warning statement he elected to exercise his right
to remain silent. In his
warning statement it is reflected that
he elected to make a statement to his lawyer. There is nothing
wrong with this election
and indeed it was his right to do so.
However, it is contrary to his version that from the very beginning
before the arrest
he told the police that he just gave a lift to his
passengers. Again the version of the police that he did not
give the explanation
to them which in his evidence he said he gave is
more likely to be true. His evidence about giving any
explanation to the
police does not sit well with him exercising his
right to remain silent. It is more likely that he exercised his
right to
remain silent all the way.
[53] His evidence was not
only self-contradictory and senseless, it also contradicted that of
his witness Zanele Sotshongaye.
Her evidence was also in many
ways self-contradictory and similarly full of not only
inconsistencies but was also incredible.
It is clear that the
goods that were found in plaintiff’s vehicle were such that a
reasonable police officer would suspect
them to have been stolen
unless an explanation was given which was not or proof of purchase
produced which was also not produced.
[54]
If plaintiff’s inconsistent and often contradictory versions
about the same incident needed any confirmation, it can
also be found
in the obligatory letter of demand
[3]
addressed to the defendant right at the early stages of these
proceedings. The letter is dated 8 March 2016 and this is what
the letter reads in regard to the abandoned claim for unlawful
assault:
“
On
or about the 13
th
day of October 2015 and at the place of arrest the members of the
Cofimvaba Police Station are (sic) assaulted our client using
the
sjambok, donkey peer and other dangerous instruments saying that he
is going to tell them the truth in so far as the theft
is concerned.
They further put on him the black plastic denying him an oxygen which
affected our client very much because
he was unable to breath, (sic)
in any way they were trying to kill him because immediately one
denies the other an oxygen she/he
is killing the person. And as
a result of the assault he sustained severe injuries including head
injury which affects him
not to concentrate to anything, trauma and
emotional shock were included.”
[55] In his evidence the
plaintiff testified that he suffered a minor injury which was a
bruise and had already healed when he was
released from detention on
15 October 2015. For that reason he never told his lawyers
about the assault. If he never
told his lawyers about the
assault where they got the details of how he was assaulted becomes
mysterious. This is incredulity
and disingenuousness beyond
description.
[56] This matter calls
for something to be said about the explanation that a person may give
to police officers. I do not
believe that if plaintiff had
given the explanation that he said he gave, police were then obliged
not to arrest him. The
issue is whether, despite his
explanation when the police were confronted with the three cars all
of which contained suspected
stolen goods, the explanation itself did
not need to be evaluated. It must be remembered that the
evidence of the defendant
is that in front of the plaintiff’s
vehicle was a police vehicle unbeknown to the plaintiff and his
friends. Behind
the last vehicle, the black getz was another
police vehicle also unbeknown to the plaintiff or the other cars.
[57]
I do not understand the legal position to be that all that is
required is an explanation and if it is given police must just
accept
it. That is clearly not so and it must necessarily depend on
the facts of each case. The police are entitled
to evaluate the
explanation and may still arrest a suspect if the explanation
proferred still leaves them with a reasonable suspicion
which is all
that is required. I am fortied in this view by the sentiments
expressed by the Constitutional Court in
Minister
of Safety and Security v Van Niekerk
[4]
in which Sachs J said:
“
17.
To my mind the present matter is far from constituting a viable test
case as claimed. On the contrary, it demonstrates
that
the
constitutionality of an arrest will almost invariably be heavily
dependent on its factual circumstances
[5]
.
Nothing in the judgment of the trial Court supports the proposition
that that Court purported to establish a general rule
concerning the
issuing of a warning instead of an arrest. The judgment itself
is based on the notion that the lawfulness
of an arrest is highly
fact-specific. Such conflict as may exist between Louw and
Charles is simply not raised by the facts
of this case.”
[58] This brings me to
the issue of whether having arrested the plaintiff police were
justified in detaining him. The
Criminal Procedure Act provides
as follows regarding procedure after arrest:
“
50.
Procedure after arrest
(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 by his or her
right to institute
bail proceedings.
(c) Subject to paragraph
(d) if such 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 section59 or 59A, he or
she
shall be brought before a
lower court as soon as reasonably possible, but not later than 48
hours after his arrest.”
[59] It is clear that
this section envisages a court appearance as soon as possible after
arrest, which means even on the day of
the arrest. Therefore,
it follows that detaining a suspect and waiting until just before 48
hours expire before bringing
him to court is on its own unlawful
unless justified. In this case it was already after 17:00 when
the arrest took place.
There was no evidence that it was
possible to bring plaintiff before a lower court on the 13 October
2015, the day of his arrest.
[60]
About the 14 October 2015, the following day after the plaintiff was
arrested, under cross examination, sergeant Tyalimpi testified
that
warning the plaintiff to appear instead of detaining him was not an
option because he did not know where plaintiff came from.
He
further said that he was not sure about plaintiff’s place of
residence, however, he, himself did not really know why plaintiff
could not appear in court the following day. For some strange
reason the defendant did not call the investigating officer
to
explain the further detention on the 14 October 2015. This
seems to have been based on the misconstruction of the provision
of
section 50(1)
regarding the appearance of an arrested person within
48 hours. The defendant must realize that
section 50(1)
of the
Criminal Procedure Act and
section 35 of the Constitution
[6]
provide that the arrested person must appear before a lower court as
soon as possible after arrest. This means that even
either on
the day of arrest or the following day if it is not a public holiday
or a weekend.
[61] Section 35(1)(d) of
the Constitution provides as follows:
“
Everyone
who is arrested for allegedly committing an offence has the right –
(d) to be brought before
a 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.”
[62] This means that the
defendant bore the onus to explain the detention from the moment of
detention until the first court appearance.
The appearance
within 48 hours is no justification, without the non-appearance in
court on the 14 October 2015, which was a normal
court day being
explained. Having said that, in this case the evidence placed
before court is that there were 15 arrestees
who were all arrested at
the same time after 17h00 all of whom were detained. On the
evidence of sergeant Tyalimpi he could
not warn the plaintiff to
appear in court on a specific date instead of detaining him because
plaintiff’s details needed
to be verified. Clearly he
would have needed to verify all of the other people’s details.
It seems unlikely that
it could have been possible to do so on the 14
October 2015 for all of them. In fact even the warning
statement of the plaintiff
appears to have been taken at 20:33 on 14
October 2015. I simply cannot see how the plaintiff and the
other arrested persons
could have been made to appear in court
earlier than the 15 October 2015 in the circumstances.
Conclusion
[63] Therefore, both the
arrest and detention of the plaintiff until he appeared in court on
the 15 October 2015 when he was granted
bail were justified.
[64] Accordingly the
following order shall issue:
1. The plaintiff’s
claim for unlawful arrest is dismissed.
2. Plaintiff’s
claim for unlawful detention is dismissed.
3.
Plaintiff is ordered to pay costs of suit.
__________________
M.S. JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel for the
Plaintiff: B.D. FLATELA
Instructed by: M.VELEMBO
ATTORNEYS
MTHATHA
Counsel for Defendant:
S.X. MAPOMA
Instructed by: STATE
ATTORNEY
MTHATHA
HEARD ON: 18 JUNE 2019
DELIVERED
ON: 25 JUNE 2019
[1]
2014(1) SACR 217 (SCA)
[2]
1988(2)
SA 654 (SE) at 658 E-H
[3]
Section
3 of the Institution of Legal Proceedings Against Certain of State
Act 40 of 2002 provides:
“
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless-
(a)
the creditor has given the organ of state
in question notice in writing of his or her or its intention to
institute the legal
proceedings in question; or
(b)
The organ of state in question has
consented in writing to the institution of that legal proceedings-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not
comply with all the requirements set out in subsection (2).
(2)
A notice must-
(a)
within six months from the date on which
the debt became due, be served on the organ of state in accordance
with section 4 (1);
and
(b)
briefly set out-
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are
within the knowledge of the creditor.”
[4]
2008(1)
SACR 56 (CC)
[5]
My emphasis
[6]
Constitution
of the Republic of South Africa, 1996