About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 102
|
|
Aoi v Minister of Police and Others (45337/2013) [2016] ZAGPPHC 102 (24 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE:
24 February
2016
CASE NO:
45337/2013
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
AUSTIN
AOI
Plaintiff
and
THE MINISTER OF
POLICE
First Defendant
VAN ROOYEN
AP
Second
Defendant
LUIS
FS
Third
Defendant
BREEDT
AF
Fourth
Defendant
VIVIERS
MJ
Fifth
Defendant
JUDGMENT
MURPHY J
1. The plaintiff has
instituted action against the five defendants in respect of four
causes of action. The first cause of action
comprises a claim for
unlawful arrest in relation to the arrest of the plaintiff by the
fourth and the fifth defendants without
a warrant on 24 March 2011.
The second claim is for an alleged second unlawful arrest, detention
and malicious prosecution in that
it is contended that the second and
third defendants actively fabricated evidence for the purpose of
opening a police docket, obtaining
a warrant of arrest to arrest,
detain and institute proceedings against the plaintiff. The third
claim is one for the impairment
of the plaintiff’s good name
and dignity arising out of the arrests and prosecution. The fourth
claim is one for special
damages for legal fees, travelling and
accommodation costs incurred by the plaintiff for the purposes of
attending court proceedings
in Kimberley.
2. The total amount of
damages sought is in the amount of R3,745 410 made up of R150 000
for the first arrest; R2,5 million
for malicious prosecution; R1
million for defamation; and R95 410 in special damages.
3. The first defendant is
the Minister of Police. The second and third defendants are Captain
van Rooyen and Colonel Luis, police
officers based in Kimberley who
were involved in securing the second arrest of the plaintiff on 31
March 2011. The fourth and fifth
defendants are Warrant Officer
Breedt and Warrant Officer Viviers who effected the first arrest on
24 March 2011.
4. It is common cause
that the defendants bear the onus to show that the first arrest was
lawful, while the plaintiff bears the
onus in relation to the other
claims.
5. The plaintiff
previously served as a member of the South African Police Services
for 32 years. He obtained the rank of Lieutenant-Colonel
and was
commander of various specialised investigating units including the
Murder and Robbery unit, as well as the Vehicle Crimes
unit. He was
discharged from the SAPS in February 2002 on the grounds of
ill-health after it was established that he was suffering
from
Post-Traumatic Stress Disorder. At about the same time he assumed
employment in a group of companies involved in debt collection,
most
of which had the acronym “SWAT” as part of the name of
the company. Some of these companies have been liquidated
or
restructured. At present, and at the time of his arrest, the
plaintiff was the sole shareholder and director of Special Weapons
and Tactic Debt Collection Services (Pty) Ltd. This company performs
debt collection on contracts with customers, some of whom
are banks.
In addition to his debt collection business, the plaintiff rendered
investigation services in co-operation with attorneys
and advocates.
The plaintiff has a law degree and is admitted as an advocate but
does not practice as such.
6. The plaintiff’s
arrest arose from his association with two men: Mr Rudi Strydom and
Mr Wouter Viljoen. Both of these men
were arrested by the Kimberley
SAPS for fraud in February 2011. The offences in question were
extensive frauds against the public
and involved a number of
perpetrators, including Strydom and Viljoen, acting as a syndicate.
The
modus operandi
of the syndicate was to advertise used or
repossessed car sales in the media. It would then invite customers to
deposit monies
in bank accounts opened in the name of fictitious
companies and individuals. The perpetrators would withdraw the money
from the
accounts to share it among themselves, but would fail to
deliver the vehicle to the customer. The basics of the scheme are set
out in a confession made by Viljoen to a magistrate in Kimberley on
28 February 2011, shortly after his arrest. Besides incriminating
himself in the confession (Exhibit Q), Viljoen incriminated various
other persons including Strydom and Mr Roy Lochner. Although
the
confession does not incriminate the plaintiff, it is evident from it
that the plaintiff had some association with Strydom,
Viljoen and
Lochner.
7. The plaintiff in his
own evidence testified that he played a role as a father figure to
Rudi Strydom with whom he socialised
on a regular basis. He was
acquainted with his family and at times assisted him with his
employment. The plaintiff was a little
more circumspect about his
relationship with Viljoen; for good reason. Viljoen has an impressive
criminal record. It was put to
the plaintiff that Viljoen had nine
previous convictions, to which the plaintiff replied that it was
more. Exh Z, being the admission
form of the Kimberley Correctional
Centre, reflects that he has no less than 47 previous convictions.
Whatever the correct position,
Viljoen has lived a life of crime
since the 1980’s. At the time of his arrest in February 2011 he
was on parole and there
were a number of warrants for his arrest
issued by various jurisdictions. It appears from Exhibit Q that from
time to time he received
remuneration as a police informer. It
appears further in Exhibit F, a Kimberley police docket, that in 2004
there were reports
in the media that a statement made by Viljoen was
handed into court in the so-called Boeremag trial in which he sought
to incriminate
some of the accused in that trial on the basis of what
he had overheard them discuss in prison, which the accused claimed
was false
and aimed at obtaining some benefit.
8. The plaintiff
downplayed his relationship with Viljoen, saying initially that he
had met him once on a hunting expedition. However,
it emerged later
in testimony that the association went somewhat further. Viljoen had
visited the plaintiff at his home and the
plaintiff attended
Viljoen’s 40
th
birthday celebration. Moreover, the
plaintiff entrusted two of his weapons to Viljoen to transport them
to Viljoen’s uncle,
a weapon smith in Kimberley, for the
purpose of repair or refurbishment.
9. The plaintiff’s
relationships with Viljoen and Strydom led to his being drawn into
their situation after their arrest in
Kimberley in February 2011.
10. On 8 March 2011
Viljoen and Strydom, appeared in the Kimberley magistrate’s
court and a bail application was made on behalf
of Strydom. Viljoen
asked for his bail application to be postponed to a later date in
order for him to obtain legal representation.
The bail application
proceeded in respect only of Strydom. Captain van Rooyen, the
investigating officer, (the second defendant)
opposed bail on the
grounds that Strydom did not have a fixed residential address or a
fixed employment and that he had and would
interfere with witnesses.
The plaintiff testified on behalf of Strydom and informed the
magistrate that Strydom had an office at
his (the plaintiff’s)
office, that he had work installing security equipment and that
Strydom would be based at the home
of the plaintiff. The magistrate
was not persuaded and denied Strydom bail.
11. The plaintiff
testified that Strydom instructed him to do “ondersoekwerk”
and that he should return to Kimberley
to present additional facts in
another bail application scheduled for 22 March 2011. In the interim
the plaintiff set about obtaining
evidence establishing that Strydom
had fixed addresses, and statements aimed at discounting the
possibility of witness interference.
He returned to Kimberley on 21
March 2011 and testified on behalf of Strydom on 22 March 2011. The
magistrate granted Strydom bail
of R1000 subject to conditions
related to his residence, contact with witnesses and reporting to the
police. The bail application
of Viljoen was postponed to 28 March
2011.
12. According to the
plaintiff, Captain van Rooyen appeared upset about the outcome of the
bail application. This, he maintains,
prompted her to embark upon a
fraudulent process of fabricating evidence against him with a view to
arresting and maliciously prosecuting
him. Captain van Rooyen denied
that she did any such thing. I will revert to this issue more fully
later.
13. On 8 March 2011, Rudi
Strydom introduced the plaintiff to Dennis van Kerrebroeck, who was
also held in Kimberley on charges
of fraud in relation to a diamond
valued at US$ 3,5 million. According to Colonel Luis, the
investigating officer in this matter,
the investigation pertained to
the theft and fraud of the diamond which was mined in Hopetown. The
diamond was discovered in 2008,
and in 2009 van Kerrebroeck (a
Canadian citizen) fraudulently created documents and forged
signatures in relation to the transaction.
Colonel Luis is attached
to the Directorate for Priority Crimes (the so-called Hawks) and a
member of the Anti-Corruption Task
Team in the Northern Cape, in
Kimberley. Van Kerrebroeck was arrested in February 2011 and was held
in the same facility as Strydom
and Viljoen. He ultimately entered
into a plea bargain, was convicted, fined and deported to Canada in
July 2013. Earlier in the
proceedings, van Kerrebroeck asked Luis
whether it was possible to pay somebody to make the case go away. He
further sought to
provide information on corrupt politicians in
exchange for a deal. Van Kerrebroeck was also investigated in
relation to allegations
of fraud pertaining to a gold mining company
in Gauteng. There was some confusion about which court had
jurisdiction in relation
to the various offences resulting in van
Kerrebroeck needing to appear in Randburg and in Kimberley.
14. As mentioned, the
plaintiff met van Kerrebroeck on 8 March 2011 and took instructions
to do certain work for him. The evidence
in relation to the nature of
the instructions and the work undertaken is somewhat vague. The
plaintiff intimated that it related
to van Kerrebroeck’s
business and personal affairs which required attention while he was
incarcerated.
15. On 21 March 2011, the
day before Strydom’s second bail application, the plaintiff met
with Strydom, van Kerrebroeck and
Viljoen at the Kimberley
Correctional Centre. What transpired at this meeting is at the heart
of this case, and forms the subject
matter of a statement made by
Viljoen to van Rooyen, on 23 March 2011, Exhibit C, in which Viljoen
incriminated the plaintiff.
I will discuss its content later.
16. The plaintiff was
remunerated by van Kerrebroeck for the work he performed. Van
Kerrebroeck’s brother, Ian, transferred
an initial payment of
approximately R20 000 directly into the plaintiff’s bank
account during March 2011. The plaintiff
testified that he received
additional payments at a later stage.
17. After Strydom was
granted bail on 22 March 2011, Viljoen asked to speak to the
plaintiff, who consulted with him in the cells
at court. The
plaintiff on account of his association with Viljoen, and the fact
that he had assisted him in the past, was aware
that there were
issued warrants for Viljoen’s arrest and that he was on parole.
He agreed to help Viljoen with his postponed
bail application, but
was not confident that it would be granted and was not sure about
what, if anything, he could do. After consulting
with Viljoen, the
plaintiff left Kimberley together with Strydom and drove back to
Pretoria.
18. On the way back to
Pretoria, the plaintiff received a telephone call from Warrant
Officer Meiring of Villeria police station
who wanted to make an
appointment to inspect his weapons safe as part of the process of
re-licensing his weapons. They agreed that
she would visit his
premises for that purpose on Friday 25 March 2011. The Plaintiff at
that stage was the owner of nine weapons.
19. According to Captain
van Rooyen, she received a telephone call from Viljoen from the
Kimberley Correction Centre on her cell
phone at approximately 15h00
on 22 March 2011. Both the plaintiff and Viljoen maintained that this
was not possible because at
that time Viljoen was consulting with the
plaintiff at the police cells. Viljoen’s version is that it was
impossible to phone
because there are no phones at the holding cells
and he was there from early in the morning until he arrived back at
prison at
18h00. The relevance of this discrepancy, according to the
plaintiff, is that it adds to his version that van Rooyen fabricated
evidence against him.
20. Viljoen and the
plaintiff’s version is contradicted by Exhibit S and Exhibit Z,
the cell register and the computer printouts
of the correctional
centre, which indicate that Viljoen was taken from the court back to
the prison on 22 March 2011 at 14h15 and
was back at prison at 14h35.
These documents are completed in the normal course of events. Both Mr
Jackson, an official at the
prison, and the plaintiff testified that
prisoners may make phone calls in the afternoon. For reasons aligned
with Viljoen’s
general credibility, which I discuss later, I
accept that Viljoen did indeed phone van Rooyen from the prison in
the afternoon
of 22 March 2011.
21. Captain van Rooyen
testified that she returned to her office after Strydom’s bail
hearing. She then received a call from
Viljoen on her cell phone who
asked her to come and see him at the prison as he had information for
her. She checked her phone,
saw that it was 15h00 and decided to
leave it to the next day. She met with Viljoen the following morning
who told her that he
had overheard Strydom and van Kerrebroeck
discussing an arrangement whereby the plaintiff could arrange for van
Kerrebroeck’s
docket in the diamond case to disappear. She
immediately left the prison and went to speak to Colonel Perumal at
the Director of
Priority Crimes in Kimberley. Perumal told her to
speak to the investigating officer, Colonel Luis, who in turn
instructed her
to take a written statement from Viljoen. She returned
to the prison, interviewed Viljoen again and took detailed notes of
his
testimony. She then returned to her office and typed up the
statement, admitted into evidence as Exhibit C. She returned to the
prison, gave the statement to Viljoen, who read through it, deposed
to the truth of its content, initialled each page and signed
it at
the end. Captain van Rooyen then commissioned the statement.
22. Exhibit C has assumed
central importance. It consists of 11 paragraphs which read as
follows:
1.
“
Ek is ‘n
volwasse RSA Burger, met ID nr […], woonagtig te […],
Doringpoort, Pretoria, tans ‘n verhoorafwagtende
te Kimberley
Korrekktiewe Dienste.
2.
Ek verlang om die
volgende verklaring af te lê. Ek verwag geen voordele in ruil
vir die verklaring nie. Ek is nie gedreig
of gedwing om die volgende
verklaring af te lê nie, en doen dit vrywillig.
3.
Op Woensdag 3 Maart 2011
is ek vanaf Kimberley Hofselle na Kimberley Korrektiewe Dienste
oorgeplaas. Toe ek by Korrektiewe Dienste
aankom, is ek in die
Ontvangs aanhoudingssel geplaas saam met Rudi Strydom en Dennis van
Karreabroeck. Rudi en Dennis het gepraat,
en Dennis het vir Rudi
meegedeel dat hy in aanhouding is oor ‘n diamant transaksie.
Rudi het vir Dennis gesê dat hy
‘n gewese kolonel van
Moord en Roof ken, en dat die gewese kolonel, ene André Austin
kan reël dat dossier kan
wegraak, en dat André Austin ook
kan reël dat Dennis borg sal kry, en dat André ook kan
help met die ondersoek
in die diamanttransaksie. Rudi het vir Dennis
gesê dat André Austin al hierdie dinge kan “uit
sort”.
4.
Rudi Strydom het toe
daagliks vir André Austin telefonies geskakel. Ek was
telkemale by as Rudi vir André telefonies
geskakel het. Rudi
het oor die telefoon vir André gesê dat Dennis iemand
soek om sy dossier te laat weg raak, of as
hul nie die dossier kan
laat wegraak nie, reël dat Dennis borgtog sal kry. Rudi het toe
in my teenwoordigheid vir Dennis gesê
dat André Austin
sê as die fondse (geld) reg is, hy (André) sal sorg dat
die dossier weg sal raak, en indien
dit te ingewikkels is, hy sal
reel dat Dennis op borgtog vrygelaat sal word, en dan later sal reel
dat die dossier weg sal raak.
Rudi het toe vir Dennis gesê om
R20 000-00 in André Austin se Trust rekening in te
betaal. André Austin
se besigheid se naam is S.W.A.T.
Services. Rudi het toe verder vir Dennis gesê as iemand navraag
doen oor die R20 000-00
wat in Austin se trust rekening in
betaal is, Dennis moet sê dat die R20 000-00 in betaal is
vir ondersoekwerk wat André
Austin vir hom moet doen. Ek weet
ook dat Dennis telefonies kontak met André Austin gehad het.
André Autin se selfoonnommer
is […].
5.
Rudi het toe by twee
geleenthede vir Dennis gevra of die geld al in betaal is. Die laaste
keer het Dennis vir Rudi gesê dat
sy broer (Dennis se broer)
van Kanada die geld in André se trust rekening inbetaal het.
Dennis het ook by my en Rudi gekom
en gesê dat André
Austin op Maandag 21 Maart 2011 Kimberley toe kom ons te besoek.
6.
Op Maandag 21 Maart 2011
het André Austin ons besoek te Kimberley Gevangenis. André
het toe vir my, Rudi en Dennis
Kentucky gebring. Austin het toe met
Dennis begin praat, en Rudi het vir my gesê da tons vir André
en Dennis moet
los dat hul alleen moet praat.
7.
Later het ek en Rudi weer
terug gegaan na André en Dennis. André het toe ‘n
wit koevert uit sy aktetas uitgehaal
en dit vir Dennis gegee. Dennis
het die koevert se seël gebreek, en ‘n pak dokumente uit
die koevert uit gehaal. Ek
het gesien op die dokumente is ‘n
rooi seël wat omtrent so groot soos ‘n R5 muntstuk is. Ek
het gesien dat op
die dokument 4 handtekeninge van persone is. Daar
was ‘n oop spasie vir nog ‘n handtekening. Dennis het toe
in my teenwoordigheid
sy handtekening op die oop spasie geteken. Ek
het vir Dennis gevra wat se dokumente hy geteken het. Dennis het vir
my gesê
dat al die besigheid wat gedoen word, en reeds gedoen
was in Suid-Afrika nou wettig is, en dat dit nou baie moeilik gaan
wees om
iets teen hom te bewys. Blykbaar is dit ‘n
Internationale Tekenreg dokument.
8.
Voordat André gery
het by Kimberley Korrektiewe Dienste het Dennis aan hom sy sleutel
oorhandig van sy woonstel te Sandton.
Dennis het vir André
gesê om al die elektriese toestelle en sy klere uit die
woonstel te verwyder. Dennis het vir
André verder gesê
om die tweede kamer se kas mooi skoon te maak. Dennis het vir André
gesê om die meubels
en televisie te los in die woonstel, omdat
dit nie sy (Dennis) se eiendom is nie, en daar moet bly.
9.
Ek, Rudi en Dennis was
ook in een sel geplaas. Tydens een van ons gesprekke het Dennis ons
vertel dat hy “deals” maak
met persone van die Kongo. Hy
ontmoet die persone vanaf Kongo in ‘n hotelkamer. Die persone
vanaf Kongo kom verkoop dan ongeslypte
diamante aan Dennis. Dennis
reël dan dat terwyl hy en die persone van Kongo in die hotel
kamer is, persone wat hul as polisiebeamptes
voordoen, die persone
vanaf die Kongo arresteer. Hul lê dan beslag om die ongeslypte
diamante. Hulle laai dan die persone
vanaf Kongo langs die pad af, en
oorhandig dan aan Dennis die ongeslypte diamant. Dennis en Rudi het
toe gepraat en gesê
as Rudi en Dennis op borgtog uit is, moet
hul in samewerking met André Austin aangaan om diamant
transaksies met Kongo persone
te maak.
10.
Ek wens ook verder te
veklaar dat André Austin by sy woning te […], Waverley,
Pretoria, ‘n onwettige R4-geweer
in sy kluis het. André
Austin het ook ‘n kantoor agter sy woning. In sy kantoor het hy
‘n leêrs van Roy
Lochner en Rudi Strydom, met al die sake
waarin hy hul al gehelp het, wanneer hul beskuldigdes in sake was.
11.
Op Woensdag 23 Maart 2011
het ek vir Dennis tydens ontbyt gesien. Hy het baie kwaad gelyk. Ek
het vir hom gevra wat fout is, toe
sê Dennis dat hy telefonies
met André gepraat het, en dat André vir Dennis
meegedeel het dat hy nie op Donderdag
24 Maart 2011 teenwoordig kan
wees as Dennis in die hof gaan verskyn nie. Dennis het toe vir my
gesê dat hy ongelukkig is,
omdat hy reeds die R20 000-00
in André se rekening in betaal het om hom te help met die
diamantsaak. Ek weet ook dat
Dennis telefonies in verbinding met Rudi
Strydom is. Rudi Strydom se selfoonnommer is […].”
23. Captain van Rooyen
was at pains to emphasise the statement in paragraph 2 that Viljoen
did not expect to receive any benefit
for making the statement, had
made it without threat and freely. This, to my mind, seems doubtful.
It is common cause that Viljoen
was released on R1000 bail on 28
March 2011 without presenting any evidence. Captain van Rooyen was
aware that Viljoen was on parole.
She claimed the state advocate
withdrew opposition to bail on the basis that his previous
convictions were more than 10 years old.
I find her explanation
unconvincing and incline rather to the view that Viljoen was indeed
rewarded with bail for his co-operation
and the information provided.
While this raises some question in relation to Captain van Rooyen’s
credibility and the reliability
of her evidence, that alone is not
definitive about the provenance of the information contained in the
statement.
24. Viljoen testified
that after his arrest Captain van Rooyen told him that she would
oppose his bail on the grounds that he was
on parole and there
existed warrants for his arrest from various jurisdictions. He
claimed that he abandoned his bail application
at that stage. But
that does not accord with what he told the magistrate on 8 and 22
March, who postponed the application to allow
him to obtain legal
representation. He initially denied that he spoke telephonically to
Captain van Rooyen on 22 March 2011, then
claimed he was not sure,
said he spoke to her on 27 March 2011 and then eventually elected to
say he phoned her one morning that
week to ask if he was going to get
bail. It should be noted that Exhibit C concludes with the typed name
of Viljoen, below his
handwritten signature, and is dated 23 March
2011 at 17h00. It is safe to conclude that the common cause fact of
his signing the
statement occurred on that day at that time.
25. Viljoen’s
version is to the effect that Captain van Rooyen visited him in
prison on 23 March 2011 at her own instance
and that she confided in
him that she was angry about the fact that Strydom had been able to
get bail because of the plaintiff’s
intervention. He claimed
that he told her she was aware of the plaintiff and that an R4
assault weapon had gone missing while under
his control during his
service with the SAPS. She told him she was keen to lock the
plaintiff up and asked him if he would be prepared
to make a false
statement incriminating the plaintiff in exchange for receiving bail.
If he refused to make a statement she would
also re-arrest his wife
(one of his co-accused), have her bail revoked and their children
placed in care. Under this kind of duress,
Viljoen claims he agreed
to sign a false statement seriously incriminating the plaintiff.
26. Viljoen testified
that Captain van Rooyen jotted down some notes in a pad, left and
later returned with a typed statement, Exhibit
C, which he then
signed without reading it, or it being read back to him, or its
contents being confirmed by him. After he signed
it, so he alleged,
Captain van Rooyen told him she would use it to lock up the
plaintiff. She supposedly said that Colonel Luis
would be pleased and
she could now be expected to be favourably considered for promotion.
27. Captain van Rooyen
denied Viljoen’s allegations. While, as I have said, I doubt
that Viljoen was not offered any inducement
to provide information,
there are a number of factors standing in the way of accepting
Viljoen’s version. Firstly, Viljoen
has an impressive,
long-standing history of fraud and deception. His record alone makes
him a less credible witness. Secondly,
a man who admits to have been
willing to falsely incriminate his friend, the plaintiff, by making a
false statement of elaborate
detail to a senior police official is
innately untrustworthy and unreliable. He knew when making the
statement that he would bring
severely harmful consequences to the
plaintiff, yet, on his own version, he was prepared to do that in
order to secure his release
on bail. He was wholly unperturbed by the
dishonourable nature of his account. But, perhaps most importantly,
the notion that Captain
van Rooyen concocted the story told in the
statement is inherently improbable. The statement contains specifics
of conversations
and events that are truthful and did in fact take
place. Some of the information presented could only have been known
by the plaintiff,
Viljoen, Strydom and van Kerrebroeck. Nobody else
was present at the meeting which both Viljoen and the plaintiff
confirmed had
actually taken place on 21 March 2011. What transpired
during the meeting was only known to the four of them, and hence the
information
in the statement could only have emanated from Viljoen
and no one else. It is thus implausible that Captain Viljoen could
have
concocted the version with the purpose of falsely incriminating
the plaintiff. It gives the lie to Viljoen’s testimony that
nothing in the statement derived from him.
28. The following
information in Exhibit C is undeniably truthful and would not have
been known by Captain van Rooyen. First, that
Rudi Strydom had told
van Kerrebroeck to transfer R20 000 into the plaintiff’s
trust account. Second, that van Kerrebroeck’s
brother did
indeed transfer the funds. Third, the meeting of 21 March 2011 did in
fact take place and that the plaintiff brought
Kentucky Fried Chicken
for the three detainees. Fourth, the plaintiff confirmed he had a
separate consultation with van Kerrebroeck.
Fifth, the plaintiff did
bring documents for van Kerrebroeck, which the latter signed. Sixth,
van Kerrebroeck did give the plaintiff
the keys to his apartment and
instructed him to take certain action in relation to it. Seventh, the
plaintiff was not available
to assist van Kerrebroeck on 24 March
2011 at court. And finally, as will be canvassed more fully later,
although the plaintiff
did not possess an unlawful R4 weapon in his
safe, weapons of questionable legality were found in his safe on 24
March 2011. Furthermore,
the plaintiff admitted that he had assisted
both Roy Lochner and Rudi Strydom in various civil and criminal
matters. Therefore
a very significant portion of Exhibit C is in fact
true and contains information that could not have been known to van
Rooyen on
23 March 2011. In this regard, it should be kept in mind
that Captain van Rooyen had no prior dealings with or information
about
van Kerrebroeck. She had heard about the diamond transaction in
the media but was in no way connected with the investigation. It
was
for that reason that she immediately visited Colonel Perumal and
contacted Colonel Luis after she first spoke to Viljoen and
before
taking his statement. Captain van Rooyen does not work for the Hawks.
And prior to this case she had only a passing acquaintance
with
Colonel Luis.
29. In the result, I
reject the allegation by Viljoen that Captain van Rooyen fraudulently
fabricated Exhibit C. The information
in Exhibit C emanated from
Viljoen and he probably offered it willingly in the hope that it
would assist in his obtaining bail
on 28 March 2011.
30. After Viljoen deposed
to Exhibit C, Captain van Rooyen faxed it to Colonel Luis who wanted
to use it to oppose van Kerrebroeck’s
application for bail at
Randburg on 24 March 2011. After reading the statement, Colonel Luis
contacted Warrant Officer Botes stationed
at the Directorate of
Priority Crimes in Pretoria. He told him that he was in possession of
information incriminating the plaintiff
and was interested in
searching the plaintiff’s premises for the illegal R4 weapon.
They decided that the best way to go
about it would be to get
officers of the provincial task team of the Firearms Unit in Pretoria
to do a normal safety inspection
and to obtain access to the
plaintiff’s gun safe in that fashion. Botes agreed to liaise
with the relevant officers.
31. Warrant Officer Botes
then contacted Warrant Officer Viviers (the fifth defendant) of the
task team, who went the following
day to the plaintiff’s
premises to conduct a safe inspection accompanied by Warrant Officer
Breedt (the fourth defendant).
The plaintiff was a bit taken aback by
their arrival at his premises early in the morning of 24 March 2011
as he had arranged an
inspection for the following day with Warrant
Officer Meiring from Villeria police station. Nonetheless, he
co-operated, consented
to the safe inspection and opened his safe.
Warrant Officer Viviers prior to leaving his office had downloaded
information from
the system which revealed that the plaintiff owned
nine weapons. Three of the weapons were not there. One of them had
been sold
and two of them had been transported by Wouter Viljoen to
Kimberley and were in the possession of his uncle, Mr Kotze, the
weapon
smith. Two other weapons were discovered which did not appear
on the list. Photographs of these two weapons taken during the course
of the trial are contained in Exhibit AP. The one is a 9mm BXP
semi-automatic hand carbine, which in appearance resembles a Uzzi
sub-machine gun. It was recovered from the safe together with 9mm
ammunition. The second is a 12 gauge calibre CW Andrews double
barrel
shotgun, which is probably more than 100 years old.
32. It is common cause
that the plaintiff does not have a license for a shotgun. He claimed
variously that the gun had been de-activated,
was an antique and has
only been used by him as an ornament. He had put it in his gun safe
because he feared it might be stolen
from an outside lapa where it
used to adorn the wall. The firearm was proven by the defendant’s
ballistic expert, Mr Cornelius
Janse van Rensburg, to be a firearm
capable of discharging ammunition. Major Matheus of the SAPS firearms
control unit confirmed
that this firearm was never deactivated by a
weapon smith and that the plaintiff had never been issued with a
deactivation certificate
in terms of the relevant legislation.
33. The plaintiff has
produced a licence for the BXP – Exhibit J. There is some
dispute about when he first produced the license
to which I will
refer later. The license is issued to Oos Vrystaat Invorderaars BK, a
close corporation. The cross-examination
of the plaintiff on this
issue, together with Exhibit M, a certificate issued by the
Commissioner of Companies and Intellectual
Property Commission on 27
February 2015, confirmed that this close corporation still exists but
changed its name on 2 February
2001 to Special Weapon and Debt
Collecting Services CC. The plaintiff is not a member or director of
this close corporation and
never has been. The only member of it is
Mr Richard Barry Nel who was appointed on 28 March 2001. Despite this
cogent and compelling
evidence, the plaintiff sought to obfuscate by
trying to create the impression that the company was one of the SWAT
group which
had been “centralized” and “consolidated”
when he took over part of the business and that such process somehow
justified his being in possession of the weapon without a licence.
34. I am accordingly
satisfied that both these firearms fall within the definition of a
firearm in
section 1
of the
Firearms Control Act 60 of 2000
, and the
shotgun in particular did not fall within the category of exclusion
from the definition provided to deactivated firearms
in
section
5(1)(j)
of the Act. In terms of
section 11
of the Act, the Registrar
must issue a separate licence in respect of each firearm licensed
under the Act. It is common cause that
the plaintiff was not the
holder of a license in respect of the shotgun. It is also more than
probable that the plaintiff was not
in compliance with the provisions
of Chapter 6 of the Act in respect of the BXP semi-automatic. With
the discovery of these weapons
it was established, at least
prima
facie
, that the plaintiff had committed an offence as
contemplated in
section 120
of the Act.
35. During much of his
testimony the plaintiff sought to lay a basis that the visit by
Viviers and Breedt to his premises was part
of the scheme of
malicious prosecution concocted by Captain van Rooyen and Colonel
Luis on the basis of fabricated evidence. He
testified that the
officers told him they were acting on instructions from Kimberley. He
made much of the fact that the search
was conducted on the false
pretence of being a safe inspection. Whatever the case, I do not
think the issue one way or the other
takes the matter further. No
doubt the search would not have been conducted had Colonel Luis not
received Exhibit C and contacted
Warrant Officer Botes. Viviers
testified that at that stage he knew nothing about the Kimberley case
and Botes had not explained
the situation to him beyond telling him
that there was information that there were unlicensed firearms in the
plaintiff’s
safe. Whatever their motivation or the information
at their disposal, the two officers conducted a safe inspection and
unearthed
two weapons which
prima facie
were in the illegal
possession of the plaintiff. They arrested him on that basis and took
him to Villeria police station. Section
40(1)(h) of the Criminal
Procedure Act provides that a peace officer may without warrant
arrest any person who is reasonably suspected
of committing or having
committed an offence under any law governing,
inter alia
, the
possession or disposal of arms or ammunition.
36. I accordingly agree
with counsel for the defendant that the fact that Viviers and Breedt
conducted a safe inspection rather
than obtain a search warrant is
insufficient to infer any malice or illegality on their part.
Section
115(4)
of the
Firearms Control Act provides
that designated officers
may at any reasonable time enter business premises or dwellings for
the purposes of any inquiry or investigation
with the consent of the
owner and without a warrant. The plaintiff consented to the
inspection. The motive for conducting the search
and affecting the
arrest is irrelevant. As our superior courts have held, for just as
the best motive will not cure an otherwise
illegal arrest so the
worst motive will not render an otherwise legal arrest illegal.
[1]
37. The plaintiff
maintained that he showed Exhibit J to Viviers and Breedt and
explained to them the process of centralisation
of the SWAT group
whereby he came to possess the BXP. They denied seeing Exhibit J. A
license in the name of a close corporation
would not have allayed the
suspicion and the fact that he had committed an offence. Likewise his
justifications regarding the shotgun
were equally unmeritorious. The
arrest of the plaintiff was effected on the basis of a reasonable
suspicion that subsequently proved
to be well-founded.
38. The plaintiff was
taken to Villeria police station where he was held and processed. His
legal representative arrived in the
afternoon and somewhat unusually
persuaded the investigating officer to accompany him with the docket
to see the control prosecutor,
Ms Wilsenach, in Pretoria. Ms
Wilsenach entered the following file note (Exhibit C) on the docket:
“
Matter not placed
on the roll: - the attorney Mr Joubert will submit proper
representations to me personally tomorrow – that
needs to be
investigated before a final decision is made to prosecute or not. He
has made verbal representations but will submit
written
representations tomorrow (25/3/11).”
39. The plaintiff and his
legal representation seemed to believe that this file note entitled
him to immediate release. Ms Wilsenach
testified that the mere fact
that a matter is not placed on the roll does not amount to an
instruction to release a suspect. She
also confirmed that she has no
authority until a suspect is charged and brought to court to give the
police instructions to release
a suspect. The plaintiff was formally
charged at about 17h30, was brought to court early the following
morning and was released
without appearing in court.
40. The decision to
detain the plaintiff overnight was taken by Colonel Alberts, the
commander at Villeria police station. He did
so after discussing the
matter with Colonel Luis who faxed him a copy of Exhibit C. Colonel
Alberts was by then aware that Ms Wilsenach
had not placed the matter
on the roll that day, since Constable Sebulela, who had accompanied
Mr Joubert, had told him so. Alberts
had been informed of the arrest
by the plaintiff’s daughter, who is a police officer at
Villeria. He was later informed by
Captain Dubell, a colleague of the
plaintiff’s daughter, about the Kimberley connection. He then
contacted Colonel Luis who
informed him that the plaintiff should not
be released and faxed him Exhibit C. He later received a call from
Adv Lupendo, one
of the control prosecutors, who asked that the
docket be placed before him the next day. Colonel Alberts also
recognised that there
was a
prima facie
case against the
plaintiff in respect of the possession of the weapons. Joubert had
shown him Exhibit J, the licence for the BXP
in the name of Oos
Vrystaat Invorderaars BK, but Colonel Alberts understood that such
did not regularise the possession of the
gun. With that he decided
that the plaintiff should not be released and should be brought
before court the next day. Colonel Alberts’
decision has not
been explicitly challenged and does not form the part of any cause of
action pleaded by the plaintiff. Colonel
Alberts is not a defendant
in the action. Claim 1 is restricted to the arrest by the fourth and
fifth defendants and the continued
detention after the decision by Ms
Wilsenach not to place the matter on the roll. Suffice it to say,
Colonel Alberts was not obliged
to release the plaintiff on the basis
of Ms Wilsenach’s note and on the basis of the information he
had at hand he had a
reasonable suspicion that an arms and ammunition
offence may have been committed.
41. In the premises, I am
persuaded that the defendants have discharged the onus of proving the
lawfulness of the plaintiff’s
arrest on 24 March 2011 and that
Claim 1 falls to be dismissed.
42. Claim 2, 3 and 4
relate to events that followed the plaintiff’s release from
custody on 25 March 2011.
43. The search of the
plaintiff’s premises had established that two of the
plaintiff’s weapons were not in his safe.
His explanation for
their absence was that they had been taken to Kimberley by Wouter
Viljoen for repair work by Kotze, the weapons
smith. Captain van
Rooyen testified that she was instructed by Colonel Luis on 24 March
2011 to visit Kotze to investigate the
matter further. She
accordingly did so and established that the two weapons were indeed
in the possession of Kotze or an associate
of him.
44. On 28 March 2011,
after receiving bail, and at the instance of Colonel Luis, Wouter
Viljoen made another statement to the police
– Exhibit P.
45. Exhibit P reads:
1.
“
Ek is ‘n
volwasse RSA Burger, met id nr […], woonagtig te […],
Hercules, Pretoria, met selfoonommer […],
tans werkloos.
2.
Op 2011-03-23 om 17:00
het ek ‘n verklaring af gelê. Ek wens hiermee ‘n
aanvullende verklaring af te lê.
Ek verwag geen voordele in
ruil vir die verklaring nie. Ek is nie gedreig of gedwing om die
volgende verklaring af te lê
nie.
3.
Op 3 Maart 2011 terwyl
ek, Rudi Strydom en Dennis van Karrebroeck in die Aanhoudingssel van
Ontvangs aangehou is te Korrektiewe
Dienste, Kimberley, het Rudi geld
aan ‘n bewaarder gegee, wat Kaizer genoem word. Rudi het vir
Kaizer gesê dat in ruil
vir die geld ek, Rudi en Dennis in die
Aanhoudingssel te Ontvangs aangehou moet word. Ek, Rudi en Dennis is
toe in die Aanhoudingssel
van Ontvangs aangehou tot op 6 Maart 2011.
Ek weet nie hoeveel geld Rudi vir die Bewaarder gegee het nie. Rudi
het toe vir Kaizer
gesê dat hy ‘n trok vir Kaizer kan
kry, en dat Kaizer dan net die paaiemente kan oorvat.
4.
Op 21 Maart 2011 terwyl
ek, Rudi, Dennis en André Austin by die Regsbesoek Lokaal, te
Korrektiewe Dienste, Kimberley was,
het Dennis van Karrebroeck vir
André Austin gesê dat die swartmense in Thembisa ‘n
probleem is, en dat hul uitgesorteer
moet word. Dit het blykbaar iets
te doen gehad met diamanttransaksies. Dennis het ook vir André
gesê dat hy (Dennis)
‘n aandeelhouer van ‘n
Maatskappy is, die maatskappy se naam is iets met ‘n “Gold”,
en dat Dennis
vir André ‘n deel van die aandele sal gee,
as André vir hom (Dennis), uit die trunk kan kry. André
Austin
het toe ook gesê dat hy gaan reël dat die saak van
Kimberley, oorgeplaas word na Handelstak, Johannesburg. André
sal met ‘n Kaptein Barries Barnard praat om te reël dat
Rudi ‘n 204 Getuie word in die saak, en dank an hul dalk
reël
dat die dossier weg raak.
5.
Gedurende April 2009 het
André Austin vir my ‘n toestemmingsbrief gegee om die
volgende vuurwapens te kan vervoer na
Kimberley:
1 X Haelgeweer
1 X 303 Geweer
1 X 243 Geweer
Ek het die 243 Geweer vir
Gert Kotze gegee, wat hout kolf vervang het. Gert Kotze het die 303
en Haelgeweer na ‘n wapensmid
geneem om metaalwerk te doen.
André Austin is bewus van die feit date k tans op Parool is.
6.
Op 6 geleenthede, datums
onbekend, was ek teenwoordig terwyl André Austin ‘n
R4-aanvalsgeweer oorhandig het aan Roy
Lochner en Rudi Strydom. Die
R4-aanvalsgeweer was in André Austin se kluis te Lawsonsstraat
1330. Rudi en Roy het die R4-geweer
gebruik om te jag. Ek het dan
tydens sulke jag episodes, het ek self die R4 geweer hanteer.”
46. Thus, Viljoen
incriminated the plaintiff further. In addition to the allegations of
conspiracy to commit corruption and defeating
the ends of justice in
Exhibit C, there are further suggestions that the plaintiff had it
within his power to have the case against
van Kerrebroeck transferred
to Johannesburg and to arrange for the docket to disappear. Viljoen
confirmed that he had transported
the weapons to Kimberley and went
on to make additional allegations about the unlawful use and
possession of the R4 rifle. The
plaintiff denies the truth of all the
allegations.
47. Relying on the
statements and the evidence at her disposal, and on the instructions
of Colonel Luis, Captain van Rooyen sought
and obtained a warrant for
the arrest of the plaintiff and Rudi Strydom. At about 01h15 on the
morning of 31 March 2011 the plaintiff
was arrested at his home in
Pretoria by a tactical team and transported by them to Kimberley. The
plaintiff complained during his
testimony about the rough handling he
received in the course of his arrest and transportation. He has
pleaded no distinct cause
of action related to this alleged
mistreatment. Though, if accepted as true, would be of some relevance
to the question of damages.
48. The plaintiff
appeared in the Kimberley magistrate’s court on 1 April 2011.
Captain van Rooyen indicated that any application
for bail would be
opposed. He appeared again on 4 April 2011, 13 April 2011 and 20
April 2011 when he eventually was granted bail.
The reasons for the
postponement were in the first instance the unavailability of the
plaintiff’s counsel (despite the prosecution
being ready to
proceed) and later the unavailability of Colonel Luis. The plaintiff
was incarcerated for 21 days in conditions
that were less than
salubrious. After a number of appearances the charges against the
plaintiff were withdrawn in November 2011.
49. Claim 2 of the
plaintiff’s particulars of claim disclose a composite cause of
action for malicious prosecution, unlawful
arrest and detention. The
allegations are that the second and third defendants wrongfully
instituted a criminal prosecution against
the plaintiff by unduly,
actively fabricated evidence, and opened a police docket and obtained
a warrant of arrest based on that
false evidence. It is then alleged
that the arrest and detention of the plaintiff on this basis were
consequently unlawful. Claim
3 is a claim for the impairment of
reputation and dignity. It is in effect a duplication in that claim 2
and 3 are one cause of
action. The claim for malicious prosecution
encompasses a claim that the plaintiff’s
dignitas
and
fama
were impaired.
50. The onus is on the
plaintiff to prove claim 2 and 3. In order to succeed the plaintiff
has to prove that:
a) the defendants
instigated or instituted a prosecution;
b) the defendants acted
without reasonable or probable cause;
c) the defendants were
actuated by malice or
animo injuriandi
; and
d) the prosecution has
failed.
[2]
51. The plaintiff
contended that the hearsay allegations in Exhibit C and Exhibit P
(the only evidence upon which the warrant of
arrest was issued) could
not constitute reasonable or probable cause for the arrest and
detention. Captain van Rooyen’s reliance
on such a limited
evidentiary basis, it was contended, supported an inference that she
was motivated by malice to prosecute the
plaintiff in retaliation for
the role he had played in obtaining bail for Rudi Strydom.
52. As I have already
held, I do not accept that Captain van Rooyen fabricated Exhibit C.
Viljoen volunteered the information in
that statement most probably
in the hope of obtaining bail. The evidence is insufficient to
conclude that he was encouraged to
supply false information. Viljoen
testified similarly in relation to Exhibit P which he deposed to
after he had received bail.
He denied ever telling Captain Viljoen
anything of the information in paragraphs 3 and 4 of Exhibit P.
Despite it being true that
he had transported the weapons to
Kimberley, he denied that he told Captain van Rooyen and claimed that
she must have obtained
the information from his fiancée. He
denied further that he ever told Captain van Rooyen anything about
the R4 rifle.
53. I reject Viljoen’s
version for similar reasons to those for rejecting his version about
Exhibit C. Viljoen is a wily man
with considerable experience as a
criminal and a prisoner. It is inconceivable that he would have
signed a wholly concocted statement.
He would have understood fully
the implications of doing that. The corroborated truth of some of the
information in the statements
and the probability that Viljoen was
motivated to co-operate to obtain the benefit of bail and other
possible advantages in his
pending prosecutions rule out the
inference that the content of the statements were falsely concocted
by van Rooyen.
54. However, there is no
getting away from the fact that Luis and van Rooyen may have been a
bit over-zealous. Luis gave hearsay
evidence in the bail application
that the plaintiff had been investigated in regard to a R4 rifle that
went missing while under
the control of the plaintiff during his time
at SAPS. There is no evidence to support this. The police do not use
R4 rifles, they
use R5 rifles. Moreover, when he gave that evidence,
he knew that although illegal weapons had been found in the
possession of
the plaintiff, an R5 was not among them. He also gave
incorrect evidence about the theft of a motor vehicle involving the
plaintiff.
Counsel has also alluded to other unsatisfactory aspects
of the testimony of Luis in the bail application suggesting that he
may
have misstated certain facts from which may be inferred malice
and the lack of probable cause. Whatever their merits they are
inconclusive
and ultimately inconsequential.
55. To my mind Luis and
van Rooyen had reasonable and probable cause to suspect that the
plaintiff may have been conspiring to defeat
the ends of justice
because Viljoen’s evidence had been objectively corroborated.
Although a R4 rifle had not been found,
illegal weapons had been
discovered in his safe. It was also confirmed that Viljoen, by virtue
of his having transported the plaintiff’s
weapons to Kimberley,
had knowledge of the plaintiff’s weapons and his weapon’s
safe. Viljoen had hunted with the plaintiff.
He was also aware of the
plaintiff’s association with Roy Lochner, a convicted criminal,
and Rudi Strydom. This knowledge
and insight positioned Viljoen to
know about possible wrongdoing by the plaintiff. If we accept that
Viljoen had furnished much
of the information in Exhibit C and
Exhibit P, which I do, and accepting that Viljoen had knowledge of
the plaintiff’s weapons,
there was unquestionably a duty upon
Luis and van Rooyen to investigate further. The fact that the
plaintiff had been released
in Pretoria did not preclude them from
taking further steps, especially in light of the allegations of
corruption and defeating
the ends of justice. Even more the case in
view of Luis being aware that van Kerrebroeck was minded to pay a
bribe to make the
case against him go away.
56. It must also be kept
in mind that Luis had no prior knowledge of the plaintiff, and was
not involved in Rudi Strydom’s
bail application or the fraud
charges against Viljoen and Strydom. Although it is true that Luis
may have misstated certain hearsay
facts in the bail application of
the plaintiff, he impressed me as an honest and conscientious police
officer who reacted to serious
allegations of corruption and
defeating the ends of justice, which had been partially corroborated.
After briefly meeting Viljoen,
once bail had been granted, he
instructed van Rooyen to obtain a warrant. His lack of personal
knowledge of the plaintiff militates
against any inference of malice
prior to the issue of the warrants by the magistrate.
57. If there was any
malice on the part of any person, it was with Viljoen. It was he who
in effect instigated the prosecution.
The plaintiff conceded that but
for the two statements of Viljoen no prosecution could have been
initiated. In
Lederman
v Moharal Investments (Pty) Ltd
[3]
Jansen JA remarked:
“
When an informer
makes a statement to the police which is wilfully false on a material
particular, but for which false information
no prosecution would have
been undertaken, such an informer “instigates” a
prosecution.”
58. In the premises, it
cannot be held that the second and third defendants instigated the
prosecution with malice. The information
contained in Exhibit C and
Exhibit P corroborated by the proof that Viljoen had knowledge and
insight into the affairs of the plaintiff
and what transpired during
the plaintiff’s visit to the prison on 21 March 2011, were
sufficient to give rise to a reasonable
suspicion that the plaintiff
may have committed an offence sufficient to justify the application
for a warrant of arrest.
59. The lengthy and
complex nature of the trial justified the employment of two counsel.
60. In the premises the
plaintiff’s action is dismissed with costs, such costs to
include the costs of two counsel.
JR MURPHY
JUDGE OF THE HIGH
COURT
Dates
Heard: 11/08/2015,24/08/2015-28/08/2015
and 3/11/2015
Counsel for
Applicant: Adv
JJ Greeff
Instructed
by: Jaap
Venter Inc.
Counsel for
Respondent: Adv
GC Muller SC, Adv MS Mangolele
Instructed
by: State
Attorney, Pretoria
[1]
Tsose v
Minister of Justice and Others
1951 (3) SA 10
(A) at 17G-H; and
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) para 30-31.
[2]
Rudolph
v Minister of Safety and Security
2009
(5) SA 94
(SCA) para 16.
[3]
1969 (1) SA 190
(AD) at 197B-C