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[2019] ZAECELLC 29
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Bellochum v Minister of Police (EL699/2018) [2019] ZAECELLC 29 (29 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO EL699/2018
NOT
REPORTABLE
In
the matter between:
SUNEEL
BELLOCHUM
Applicant
And
MINISTER
OF
POLICE Respondent
JUDGMENT
NQUMSE
AJ:
[1]
On 27 December 2014 members of the South African Police Service
(SAPS) under the Directorate
for Priority Crimes Investigations also
known as the Hawks, pounced on the plaintiff (also a police officer)
arresting him for
extortion and corruption.
[2]
Following that arrest, the plaintiff is now suing the Minister of
Police for damages
for unlawful arrest and detention.
[3]
At the commencement of the trial the parties applied formally to the
court for an
order to separate merits from quantum and for the matter
to proceed on merits only. Their request was granted and an
order
made to that effect. In the result the only issue that
was left for determination by the court was the lawfulness or
otherwise
of the arrest and detention of the plaintiff.
[4]
It is common cause that the plaintiff was arrested on 27 December
2014 without a warrant.
The onus to justify the legality for
the arrest and the duty to begin rested on the defendant. It is
also common cause that
the police were acting within the course and
scope of their employment as members of the SAPS when they arrested
the plaintiff.
The parties further agreed that a sworn
statement deposed to by Mr Ali Mohammed a Pakistani National
(hereinafter referred to as
the complainant) which was part of the
trial bundle of the plaintiff be accepted as a true statement of the
said Pakistani National
without the necessity to call the
Commissioner of Oaths, Mr Gaika for his confirmation thereof.
It was further agreed that
the bank deposit slip of Capitec Bank in
the amount of R9 000 contained in the plaintiff’s trial
bundle is a true reflection
of a deposit made by the plaintiff into
the bank account of the beneficiary reflected thereon.
[5]
In its plea the defendant admits that the plaintiff was arrested on
the aforementioned
date near a parking lot in Oxford Street in East
London without a warrant. Defendant denied that the arrest was
wrongful
and / or unlawful. It relies on the provisions of
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[6]
In amplification of its denial the defendant pleaded that the
arresting officer entertained
a suspicion that the plaintiff had
committed and was in the process of committing the crimes of
extortion and corruption.
The laying of charges of extortion
and corruption against the plaintiff by the complainant led the
police officers to believe that
the plaintiff had committed the
offences levelled against him.
[7]
As propounded in Duncan v Minister of Law and Order
[1]
justification of a warrantless arrest where reliance is on
section
40(1)(b)
of the
Criminal Procedure Act,
[2
]
the following jurisdictional facts must exist.
1.
The arrestor must be a peace officer.
2.
He must entertain a suspension.
3.
It must be a suspicion that the arrestee committed an offence
referred to in Schedule 1 to the
Act.
4.
The suspicion must rest on reasonable grounds.
[8]
Pursuant to its duty to begin, the defendant led the evidence of
Zonisele Mavikela.
He testified that he is a warrant officer
attached to the Organized Crime Unit in East London. On 27
December 2014 he received
a telephone call from a certain Captain
Siko of the Fleet Police Station. Captain Siko informed him
that the complainant,
who was at the charge office, had opened a case
of extortion and corruption against the plaintiff. He rushed to
the Fleet
Street Police Station and upon his arrival there, was
furnished with a docket which had already been opened against the
plaintiff.
After he had read the complainant’s statement
in the docket coupled with his interview of the complainant, he
gained an impression
that the plaintiff had committed the offence of
extortion. Whilst still at the Police Station he was joined by
his colleague
W/O Mosia. They took the complainant along to
their offices where another colleague of theirs, W/O Rooy, was
waiting for
them. Rooy suggested that their senior, Captain
Buys be called. Upon the arrival of Captain Buys they explained
to
him what was happening and he was furnished with the police docket
to read.
[9]
During their interview of the complainant he informed them that he is
a Pakistani
National who delivers tobacco and other items to shops
around East London. He further informed them that the truck
that he
uses to deliver his consignment of tobacco was stopped by a
police officer who turned out to be the plaintiff. The
plaintiff
accused him of selling illicit tobacco. The plaintiff
further made threats that if he did not want his truck and
consignment
to be confiscated, he must pay an amount of R30 000.
After having been given an opportunity to raise the amount that
was
demanded, he succeeded to collect R27 000 which he paid over to
the plaintiff. The plaintiff further allowed
him to get
the remaining R3 000 which he succeeded to raise and which was in his
possession when they interviewed him.
[10]
He further testified that they took the R3 000 notes from the
complainant and made photocopies
albeit
not for the full
amount due to the machine that jammed. Whilst they were busy
photocopying the money, the plaintiff was calling
the complainant
constantly on his cellphone demanding the outstanding amount of R3
000. He suggested to Captain Buys that
the crime intelligence
unit be involved and a trap set up. Captain Buys refused his
suggestion on the basis that the suspect
was in a hurry to get this
money from the complainant. Instead, Captain Buys took out his
personal recording device, and
showed it to complainant and also gave
him instructions on how to use it.
[11]
He further testified that after the complainant had been shown how to
operate the device, he
together with W/O Mosia got into the back of
the panel van of the complainant and drove to McDonalds at Fleet
Street, a meeting
spot that had been arranged between the complainant
and the plaintiff. Upon arrival at that spot, the complainant
alighted
from his vehicle and walked across Oxford Street to the car
of the plaintiff. He and Mosia followed from behind and saw
when
the complainant entered the plaintiff’s vehicle.
However, when they got to plaintiff’s vehicle both the
complainant
and the plaintiff alighted from it. That time both
Captain Buys and Rooy also arrived. They informed the plaintiff
that there was a complaint against him and that they were police from
the Hawks. They sought permission to search his vehicle,
which
he gave. Rooy searched his vehicle and found in the ashtray an
amount of R3 000 some of which bore the same serial
numbers of the
money they had photocopied.
[12]
He also testified that before they took the plaintiff to their
offices, he offered an explanation
that he was collecting the money
from the complainant on behalf of his friend who was in
Pietermaritzburg. As proof thereof
he showed them a Capitec
Bank deposit slip which reflected a deposit amount of R9000. He
never followed up on this information
until 11 March 2016. He
took two cellphones from the plaintiff and referred them to Cyber
Crime Section for downloading of
their data. Whilst they were
successfully downloaded, nothing seemed to turn from that
information. A few days later,
he discovered that the recording
device did not function properly and he did not know what eventually
happened to it since it was
taken by Captain Buys.
[13]
Under cross-examination he conceded that after a year and a half
since the arrest of the plaintiff
and until the decision of the
prosecutor to decline to prosecute, there had been no other piece of
evidence that implicated the
plaintiff. He further conceded
that in all the four statements he had made, he never mentioned that
he read the complainant’s
statement that was in the docket.
Neither was it mentioned anywhere in his statement that he
interviewed the complainant
before effecting the arrest of the
plaintiff. He did not mention that he formed the suspicion
after reading the complainant’s
statement or after he had
interviewed him.
[14]
He agreed that if he had read the complainant’s statement which
made mention of plaintiff’s
name he would have known that the
plaintiff was also a police officer since he knew him before the
incident. When he was
asked why he did he not investigate the
matter first or issue summons for the plaintiff who was well known to
him to attend court,
he said the offence was serious and the
complainant was being robbed at that moment. He also conceded
that even though the
complainant confessed to paying a bribe to save
his truck and the illicit tobacco from being confiscated, he let him
free and did
not arrest him for being an accomplice. He also
conceded that he never went immediately to verify to the shop owners
who
borrowed the complainant the R27 000 in order to verify the
information that was given by the complainant. Neither did
he
think of calling them telephonically. He denied that their
operation was a trap and accordingly there was no need to seek
the
approval of the Director of Public Prosecutions.
[15]
He testified that they photocopied the money in order to obtain
concrete evidence against the
plaintiff and that the use of the
recording device was to strengthen and support the evidence of the
police. He denied that
he heard the plaintiff when he was
saying to Captain Buys, that he was glad for the recording which
would prove his innocence.
[16]
He also stated that he was not aware as to who placed the money in
the ashtray of plaintiff’s
vehicle. Neither did he know
what was discussed between the plaintiff and complainant whilst they
were in the plaintiff’s
vehicle.
[17]
When he was asked why he did not call the friend of plaintiff on
whose behalf he was collecting
the money, he said, whilst he
accepting that he should have called the plaintiff’s friend, he
could also not advance any
reason for his failure not to do so.
He, however, agreed that had he done so, it might have caused them to
discuss the matter
with the plaintiff rather than to arrest him
immediately.
[18]
He also could not refute the version put to him that the plaintiff
was requested by his friend,
a certain Mr Jogger from
Pietermaritzburg, to collect his money from the complainant. He
also could not refute that the complainant
had confirmed to
plaintiff’s friend that he was in possession of the said money
and ready to meet with the plaintiff at Nandos
in order to hand it
over to him. He also did not dispute that the only time the
plaintiff made a call to the complainant
was after 16h00 when the
plaintiff could not see the complainant at their meeting spot as per
information that was recorded in
the tracker profile of plaintiff’s
vehicle. When he was also confronted with the complainant’s
statement that
it had no mention of a threat to confiscate
complainant’s vehicle and its consignment, he said that is what
had been told
by the complainant.
[19]
Captain Raymond Buys also testified. He is attached to the
Hawks. In the afternoon
of 27 December 2014 he was contacted by
Warrant Officer Rooy who requested his assistance in relation to an
operation involving
an alleged commission of corruption or
extortion. In response to that call, he went to their offices
and upon his arrival
there found W/O Mavikela, W/O Mosia, W/O Rooy as
well as the complainant.
[20]
After they reported to him what had happened, he interviewed the
complainant and also read his
statement that was in the docket.
The complainant informed him that he was stopped by the plaintiff
whilst driving his panel
van. The plaintiff informed him that
he was transporting illegal cigarettes. The plaintiff further
demanded an amount
of R30 000 failing which he would report him
to people who dealt with the so-called illegal cigarettes. The
complainant
further informed him that he managed to organize an
amount of R27 00 from friends and gave it to the plaintiff.
They also
exchanged contact details for him to be able to advise the
plaintiff as soon as he was in possession of the outstanding balance
of R3 000.
[21]
He further testified that whilst busy assisting W/O Mavikela in
making photocopies of the R3
000 notes, he overheard a telephonic
conversation between the complainant and the plaintiff. In that
communication the plaintiff
was demanding the amount of R3 000 from
the complainant.
[22]
He denied that their operation was a trap. He instead referred
to it as a “control
delivery procedure”, which excludes
the element of enticement that is normally found in undercover
operations. In support
of this contention he referred to a
similar situation that was discussed in the case of
Lachman
, a
judgment of the Supreme Court of Appeal. He contended strongly
that he had no need to apply for a
section 252A
approval from the
Director of Public Prosecutions, especially given the time
constraints then prevailing which made it impossible
to make all the
necessary arrangements that were required for a trap. He
decided to make use of his private recording device
which he placed
in the console of the complainant’s panel van for the purpose
of capturing the transaction that was to take
place and to take a
video footage thereof.
[23]
He further testified that the complainant together with his wife and
their two children left
with the panel van to the meeting spot,
between Nandos and McDonalds, whilst W/O Mavikela and W/O Mosia
boarded the back of the
panel van. He and Rooy followed in an
unmarked police vehicle. Upon their arrival at the scene they
parked their vehicle
next to a checkers building which is separated
by the Fleet Street from Nandos and McDonalds. The complainant
parked his
vehicle and between Nandos and McDonalds.
Complainant alighted from his vehicle walked and to the plaintiff’s
vehicle which was parked between Buffalo City Municipality parking
area and KFC. W/O Mavikela and W/O Mosia also followed
the
complainant and walked towards the plaintiff’s vehicle.
When he approached the plaintiff he enquired from the complainant
about the recording device. He found it in the possession of
complainant and he handed it over to him. At that time
Rooy and
Mavikela were searching the plaintiff’s vehicle and they found
the money that bore serial numbers that matched the
photocopied notes
they had made.
[24]
He further testified that upon the plaintiff seeing what was
happening, he remarked and said
he had done nothing wrong and the
video footage that was taken would assist him in proving his
innocence. However, he contends
that the events caused him to
form an opinion that the plaintiff committed and was still continuing
to commit offences of corruption
and extortion.
[25]
When they returned to their offices he discovered that the recording
device was only able to
record the events from when the complainant
left their offices up until the time he reached Nandos and McDonalds,
and thereafter
it was blank and with no audio recording.
[26]
Under cross-examination it was put to him that in the disciplinary
enquiry against the plaintiff
he was adamant that he got involved in
the arrest of plaintiff during the morning whereas the statement of
the complainant was
obtained only in the afternoon of that day.
He said that he realised the mistake he made in the disciplinary
hearing and
his memory was refreshed after he read the statement of
the complainant. He conceded that he did not have an
independent
recollection of the events when he testified at the
hearing. In that regard his testimony at the hearing was
false.
He admitted that nowhere in their police statements is
it mentioned that the docket was already available when they
interviewed
the complainant. He also could not explain the
entry in the docket which indicated that the only time they received
the docket
from Fleet Street police station was at 20:20 in the
evening, more particularly according to him he had read it earlier.
[27]
When asked why he did not mention in his statement the recording and
footage that was found in
the recording device
albeit
up to
Nandos, he said it was because the information that was recorded did
not incriminate the plaintiff. He also conceded
that the
plaintiff’s reaction that he was glad for the recording was not
consistent with someone caught in a trap.
He also accepted that
when W/O Mavikela was furnished with the contact details of the
plaintiff’s friend who was in Pietermaritzburg,
it was expected
of him to call that friend immediately. He also conceded that
when the plaintiff alighted from his vehicle
shouting and beckoning
the plaintiff to his vehicle, plaintiff’s actions were not
consistent with a person who was about
to commit the crime of bribery
as suggested.
[28]
He could not offer a reply to the assertion that the plaintiff
believed that he deleted the recordings
from the device only because
it exonerated the plaintiff from any wrong doing. He also said
he did not know why the complainant
was not treated as a suspect
seeing that he was in possession of a consignment containing illegal
cigarettes. He confirmed
that had been given the deposit slip
he would have phoned for verification. If it turned out to be a
proof of what the plaintiff
was claiming, the arrest could or could
not have followed since it would have required W/O Mavikela to
reconsider the situation.
[29]
At the closing of the defendant’s case, the plaintiff elected
to close its case and not
to testify.
[30]
Mr Swartbooi for the defendant argued that whilst it may be accepted
that this is a matter in
which more could have been done by the
police he, however, invited the court to consider the totality of the
evidence and to find
that the circumstances that prevailed in this
matter justified the reasonable suspicion that was held by the police
that an offence
of corruption or extortion had been committed.
He further submitted that the failure of Captain Buys to obtain the
section 252A
approval for a trap was of no consequence given the
urgency within which the police had to act. He further
submitted that
the actions of Captain Buys should be seen as
reasonable under the circumstances.
[31]
Mr Taljaard for the plaintiff argued that the defendant failed to
discharge its onus to prove
that there were reasonable grounds to
form a suspicion that the plaintiff had committed or was about to
commit an offence under
Schedule 1 to the
Criminal Procedure Act.
He
further argued that the two sources of information
viz
, the
contents of the docket and the interview of the complainant, was not
sufficient information to actuate the suspicion relied
upon. He
further argued that the chronology of events pointed to the fact that
at the time the police interviewed the complainant,
they were not in
possession of the docket. They only became in possession of the
docket in the evening after the plaintiff
had been arrested.
The information at the disposal of the police, so he argued, was
insufficient to result in a reasonable
suspicion.
[32]
In
Minister
of Law and Order v Hurley and Another
[3]
it was stated that “an arrest constituted an interference with
the liberty of the individual concerned, and it therefore
seems fair
to require that the person who arrested or caused the arrest of
another person should bear the onus of proving that
his action was
justified.”
[33]
In
Duncan
[4]
the court stated that the suspicion that must be held, in order to be
a reasonable one, must be objectively sustainable in the
sense that
it must rest on reasonable grounds.
[34]
I agree fully with counsel for the defendant that this is a matter
where before the arrest of
the plaintiff, a lot could have been done
by the police officials without any difficulty. It bears
mentioning that a few
out of a number of things could have been done
by the police to assist them in their evaluation of the evidence and
assessment
of its quality.
[35]
According to the police the complainant informed them that he was
stopped by the plaintiff for
dealing in illegal tobacco. After
a demand was made for him to pay a bribe, he was allowed by the
plaintiff to leave with
his panel van with the consignment of illegal
tobacco. Not only is this account improbable. The very
police failed
to enquire from the complainant if he was in fact
dealing with illegal tobacco and whether he was carrying illegal
tobacco in his
panel van. Had this issue been canvassed, it is most
likely that the complainant would have confirmed that he was indeed
dealing
with illicit tobacco and his consignment was illegal
tobacco. Alternatively, he could have given a response denying
that
he was dealing in illicit tobacco and was therefore not in
possession of same. If that was the case, the police would have
had to ask him why he got into the trouble of raising an amount of
R30 000 if he was not carrying illegal tobacco and was
not
dealing with same.
[36]
The further lack of the police to assess the evidence at their
disposal is more demonstrated
when regard is had to the affidavit of
Mohammed Amir Hossain who is one of the friends who assisted the
complaint with the amount
of R27 000. Mr Hossain’s
affidavit that was deposed to on 23 January 2015 was discovered and
formed part of the plaintiff’s
trial bundle which was handed
into evidence by agreement. The relevant parts of the affidavit
are paragraphs 4, 5, 6 and
10.
[37]
In paragraph 4 he states “On Saturday 2014-12-27 at approx.
(sic)
10h00 I was at my place of employment, I was met by my
supplier Mr Mohammed Ali. He had just arrived from Johannesburg
driving
a white mini truck. He introduced me to his wife and
children whom was sitting inside the truck and he came and sat inside
the shop.
(sic)
Mr Mohammed Ali supplies our business
with bulk sweets, biscuits and other items.”
[38]
In paragraph 5 he states “On this day and approximately 11h00
time
(sic)
Mr Mohammed Ali approached me and asked for the
money of the purchased stock I requested he wants as I gather the
money.
(sic)
I notice
(sic)
Mr Mohammed Ali was
walking in and out the shop and was shouting on the phone.”
[39]
In paragraph 6 he states “He then came to the side of the
counter where we counted the
money together.
He was
complaining about someone that sent a person to collect money from
him.
I counted the R27 000,00 together with Mr
Mohammed Ali. I then placed the money in three bank plastic
packets,
containing of R9000,00 each . . .” (my own
emphasis)
[40]
In paragraph 10 he states “. . . when I was in the office I was
together with Mr Mohammed
Ali, his wife and the policeman. This
policeman asked me if I could speak English properly and I said no
but broken English.
Mr Mohammed Ali wife
(sic)
said that
she will translate for me but she can’t speak Bengali and she
is a South African Xhosa. So we spoke in English.
At
that moment Mr Mohammed Ali said to me in Urdu that I must say, I
gave him R30 000,00 as that’s what he gave in his
statement
(sic
)
. When the police asked
my statement I also said that it was R30 000,00 that I gave to
Mr Mohammed Ali.
Although the truth is that I gave him
R27 000,00
.” (my own emphasis)
[41]
In light of the affidavit of Mr Hossain, it is clear that had the
police contacted Mr Hossain
upon them being furnished with his
details by the complainant, they would have noticed the apparent
discrepancies between the account
given by the complainant and the
one given by Mr Hossain. Particularly on the aspect when
complainant said to Mr Hossain,
someone had been sent to collect
money from him. This account corroborates the plaintiff who
informed the police that his
friend had sent him to collect money
from the complainant. It is also curious to note the amount of
R9 000 mentioned in the
affidavit of Mr Hossain if regard is had to
the deposit slip of the same amount that was furnished by the
plaintiff to W/O Mavikela
and his colleagues by the plaintiff.
[42]
What I also find remarkably glaring are the apparent discrepancies
between the statement made
by the complainant and what he told W/O
Mavikela. According to W/O Mavikela the complainant told him
that whilst he was driving
his sprinter bus he was stopped by police
at Buffalo Street. After he was stopped he was informed that he
was dealing in
illegal cigarettes and his vehicle as well as its
consignment would be confiscated unless he paid an amount of R30 000.
[43]
Whereas according to the statement of the complainant which is
alleged to have been in the docket
when he was interviewed, it gives
a different account of events. In the statement the complainant
said, he had parked his
vehicle at Gilwell Street next to Alimacar
Supermarket. Whilst he was inside a certain shop, the plaintiff
appeared and asked
for the driver of the sprinter bus in which his
wife and two children were passengers. In response to the
plaintiff he advised
him that he was the driver of the sprinter bus.
Thereafter he was informed that he was going to be arrested for
possession
of illegal cigarettes. The statement further alleges
that the plaintiff informed the complainant that he would be
investigated
by officials from South African Revenue Services and was
likely to be detained for a number of days and as a result he would
lose
his business.
[44]
The statement states further that the complainant went back inside
the shop and after he explained
to Mr Amiri the shop owner as to what
was happening, he gave him R27 000 and gave it to the plaintiff
who was waiting for
him outside.
[45]
What is patently absent from the plaintiff’s statement is the
allegation that the plaintiff
had threatened to confiscate his
vehicle as well as his consignment. Also, no mention is made
that he was stopped by the
plaintiff whilst driving his vehicle at
Buffalo Street. Instead, according to his statement, his
vehicle was parked next
to a shop at Alimacar Supermarket.
[46]
It is also worthy to note that the statement of Mr Hossain differs
from that of the complainant.
According to Mr Hossain’s
statement he was not informed by the complainant that that he was
being harassed by the plaintiff
who was demanding a bribe.
Instead, he was complaining about “someone” who had sent
a person to collect money
from him.
[47]
It has also to be borne in mind that according to the complaint, when
he encountered the plaintiff,
his wife and 2 children were in his
sprinter bus. However, no attempt had been made by W/O Mavikela
or his colleagues to
obtain a statement from the wife to confirm what
had been reported by the complainant. This in my view was an
obvious thing
to do by the police before effecting the arrest.
[48]
In
Mabona
[5]
Jones J dealing with a reasonable suspicion held:
“
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
authorises drastic police action. It authorises 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 quality and cogency to
engender in him a conviction that the suspect is in fact guilty.
The
section requires suspicion but not certainty. However, the
suspicion must be based upon solid grounds. Otherwise, it
will
be flighty or arbitrary, and not a reasonable suspicion.”
[49]
The remarks in
Mabona
,
were amplified further by Mbenenge J (as he then was), in
Sibuqashe
v Minister of Police
[6]
where he stated:
“
It is trite law
that police officers who purport to act in terms of section 40(1)(b)
of the CPA should investigate exculpating explanations
offered by a
suspect before they can form a reasonable suspicion for the purposes
of a lawful arrest. It is expected of a
reasonable man to
analyse and assess the quality of the information at his disposal
critically and not to accept it lightly 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”
[50]
In this matter the suspect tendered an explanation in the form of a
Capitec bank deposit slip.
He also furnished them with details
of the friend for whom he was collecting the money. None of
this information was investigated
and assessed to aid the police in
forming a suspicion to arrest. This failure is exacerbated
further by the failure of the
police to obtain a statement from the
wife of the complainant who was present at all material times when
this incident occurred.
[51]
In
Mhaga
v Minister of Safety & Security
[7]
Zilwa AJ after considering what was said in
Bobbert
v Minister of Law and Order
1990 (1) SACR 404
(C) and
R
v Van Heerden
1958
(3) SA 150
(T) at 152, the learned Judge remarked as follows:
“
From the
aforegoing cases it emerges clearly that the requirement that the
reasonable belief on the part of the arresting officer
must be that
the arrestee has committed a schedule 1 offence, before he can be
arrested without a warrant, is of paramount importance.
This
clearly implies that before plaintiff’s arrest by Inspector
Duma can be clothed with legality, it must be shown, not
only that
Inspector Duma suspected plaintiff of having committed an offence,
but that he must have reasonably suspected plaintiff
of having
committed a schedule 1 offence”.
[52]
From the facts in this matter, the plaintiff’s arrest by the
police officers, W/O Mavikela
and his team, cannot be clothed with
legality. It is my view that the police have failed to analyse
critically the information
at their disposal which was ostensibly the
complainant’s statement only. Nothing prevented the
police from obtaining
information which was readily available and
reachable. Such as the information of Mr Hossain who borrowed
the complainant
the amount of R27 000 and to make a telephonic
call to the plaintiff’s friend who was in Pietermaritzburg.
[53]
In the absence of credible information that could have been easily
ascertained in order to assist
the police to satisfy the requirements
as envisaged in section 40(1)(b) of the CPA, I am unable to find that
their suspicion was
based on reasonable grounds.
[54]
In the result I find that the plaintiff’s arrest and resulting
detention were unlawful.
________________
V
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Appellant:
Adv. D J Taljaard
Instructed
by:
N N Dullabh & Co
c/o
M A Fredericks & Associates
7
Gately Street
Southernwood
EAST
LONDON
Ref:
Mr MA Fredericks / BEL2 / 0001
For
the Respondent:
Adv. S J Swartbooi
Instructed
by: The
State Attorneys
Old
Spoornet Building
17
Fleet Street
EAST
LONDON
Ref
892/15-P14 (Mrs Mbombo)
Date
Heard:
26
– 28 August 2019
Judgment
Delivered:
29
October 2019
[1]
1986
(2) SA 805
(A) at 818 G-H
[2]
Act
51 of 1977
[3]
Minister
of Law and Order v Hurley and Another
1986 (3) 586 (A) at 589 E – F.
[4]
Supra
[5]
Mabona
and Others v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658 E – H.
[6]
Sibuqashe
v Minister of Police and Another
527/2011 [2015] ZA ECBHC 32 (22 September 2015) at para 57.
[7]
2001 (2) All SA 534
(Tk).