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[2013] ZAGPPHC 88
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Rusike v Minister of Police (52960/09) [2013] ZAGPPHC 88 (2 April 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE No: 52960/09
DATE:02/04/2013
In
the matter between:
MUTANDWA RUSIKE
….................................................................
Plaintiff
And
MINISTER OF POLICE
…................................................................
Defendant
JUDGEMENT
MOLOPA-SETHOSA
J
The
Plaintiff in this matter, Mutandwa Rusike (“Plaintiff1) has
instituted an action against the Minister of Police (“Defendant”)
for damages for alleged unlawful arrest and detention on 30th August
2008 at Middelburg by members of the South African Police
Service
(“SAPS”).
At
the commencement of trial, by agreement between the parties, the
court was informed that the Plaintiff was no longer persisting
with
his claim for loss of earnings, and that if the court were to find in
favour of the Plaintiff that the arrest was unlawful,
the Plaintiffs
award of damages should only be for two days of detention for the
unlawfulness of the arrest and detention.
The
Defendant led the evidence of Megiel Jacobus Ehrens Botha (“Botha”).
He testified that at the time of arresting
the Plaintiff he was in
the employ of the South African Police Services (“SAPS”).
That he was in service of SAPS for
23 years and that at the time he
arrested Plaintiff, he held the rank of Inspector and was stationed
at the Middleburg Detective
Branch. At the time he gave evidence
herein he was no longer in the employ SAPS.
He
testified that on Saturday 30 August 2008, he received a docket on
theft of a truck and fraud of a diesel; that he read the
complainant’s statement and also interviewed the complainant
one Naidoo (“Naidoo”); and that the complainant informed
him that he could not reach the Plaintiff on his/Plaintiff s cellular
phone. He then went with the complainant Naidoo to where
the truck
was. That the Naidoo identified the truck to him and pointed out the
Plaintiff to him as the person/suspect who had stolen
his truck/had
unlawful possession of his truck for some days; that he/Botha then
arrested the Plaintiff as the suspect. That for
the reasons set out
herein he exercised his discretion in terms of section 40(1 )(b) and
arrested the Plaintiff without a warrant.
He
testified that from information by Naidoo, the truck in question was
with the Plaintiff for a few days; that he exercised his
discretion
to arrest the Plaintiff because the Plaintiff was found in possession
of the truck in question [after Naidoo had laid
a charge of theft
against him], and the Plaintiff also handed him/Botha the keys to the
said truck.
He
further testified that he arrested the Plaintiff according to
section
40
(1) (b) of the
Criminal Procedure Act 51 of 1977
, as amended (“the
Act”), which gave him, as a peace officer, the right to arrest
a suspect without a warrant if there
was a prima facie case against
the suspect. That theft is a serious offence, and he arrested the
Plaintiff at the time in terms
of
section 40
(1) (b) of the Act based
on a reasonable suspicion that the Plaintiff has committed a schedule
1 offence, based on the complainant
Naidoo’s allegation, and
that since he found the Plaintiff in possession of the said truck and
the Plaintiff gave him the
keys to the said truck, he arrested him
without a warrant.
He
testified that when he arrested the Plaintiff he warned him of his
constitutional rights according to section 35 of the Constitution
Act
108 of 1996. Further that he warned the Plaintiff in English because
he/ Plaintiff said that he understood English, and that
the Plaintiff
spoke English well.
Asked
why did he not just take the Plaintiffs statement and release him on
warning to appear in court the next court day, he testified
that he
did not do that because the Plaintiff was not a South African
Citizen, and that at that stage he had no fixed address,
i.e. the
Plaintiff could not give him a fixed address.
He
further testified that on Monday 1 September 2008 the Plaintiff was
taken to court so that his address could be investigated,
and for
bail application. That the Plaintiffs bail was refused and he was
detained further because the Prosecutor was convinced
that he should
not be released.
He
testified that at the time of arresting the Plaintiff there was no
other way that he could have secured the Plaintiffs presence
at court
under the circumstances; further that he contends that he acted
correctly and lawfully under the circumstances.
Under
cross examination he stated that as far as he knows, when the
Plaintiff appeared in court on 1 September 2008, he was not
granted
bail; that the matter was remanded to another date.
He
further stated that he was not present in court when the Plaintiff
appeared in court in December 2008; further that he is not
aware that
charges were withdrawn on 29 May 2009 and that he was not in court on
the said day.
Asked
if he was handling the case at the particular time when the Plaintiff
appeared in court on 1 September 2008, December 2008
and May 2009, he
stated that he was not handling the case; further that he/Botha did
not appear in court on 1 September 2008, that
he was not present.
That subsequent to the Plaintiffs arrest he/Botha did not appear in
court on the dates on which the matter
was remanded.
He
reiterated that he interviewed the complainant, Naidoo; that the said
Naidoo informed him that he stays somewhere in Durban;
further that
though he/Botha did not know and/or was not sure of what type of
business Naidoo does, he learnt that the business
of
Naidoo/complainant has got something to do with transport because
Naidoo owns trucks. That he established from Naidoo that he/Naidoo
was in Middelburg looking for his truck.
He
stated that he does not know that Naidoo does some business and/or
mining business in Middleburg, which he stated he cannot dispute,
but
that all he knows is that Naidoo was a complainant in his case and
that he was just investigating the case.
He
further stated that he did not know that Naidoo transports coal to
Eskom power stations in Middleburg and Witbank. That he knows
that
Naidoo owns trucks, but that he did not know what Naidoo was
transporting with the said trucks; further that he would not
dispute
that Naidoo transports coal with the said trucks.
Asked
if Naidoo told him that he/Naidoo and the Plaintiff had a
relationship, he stated that when he interviewed Naidoo, Naidoo
told
him that the Plaintiff worked for him and that Plaintiff was a driver
of one of his trucks; that Naidoo did not tell him that
the Plaintiff
kept one of the trucks with him because he/Naidoo came and opened a
case of theft of the truck against the Plaintiff.
Put
to him that the Plaintiff was employed by Naidoo as a driver of the
truck and that he/PIaintiff kept the truck with him, he
stated that
he cannot dispute that the Plaintiff worked for Naidoo and that they
had a relationship, but that the complainant/Naidoo
came and opened a
case of theft, which meant that the Plaintiff had no right to keep
the truck in question with him.
He
stated that he can’t remember that the complainant/Naidoo told
him where the Plaintiff lived.
Asked
if he could dispute that the Plaintiff stayed in Middelburg at the
mine inside the truck, he stated that when he/Botha asked
the
Plaintiff where he stayed the Plaintiff told him that he was a
Zimbabwean and that he did not have a fixed address.
He
stated that he arrested the Plaintiff outside the Middleburg police
station in front of the police station at around 13H55; that
the
Plaintiff came to the police station with the said truck and he does
not know how the Plaintiff came there. That when he arrested
the
Plaintiff the complainant/Naidoo was also at the police station and
that Naidoo pointed the Plaintiff/suspect out to him.
Asked
if he could dispute that the Plaintiff and the complainant Naidoo had
agreed to meet at the police station on 30 August 2008
because they
had a dispute regarding Plaintiffs wages which had not been paid by
Naidoo for four (4) months, he stated that he
cannot say as he was
not present [when they allegedly agreed]. That he did not know what
dispute they had; but that a criminal
case was opened by the
complainant Naidoo and he had to investigate the case.
He
stated that the complainant never mentioned to him that on the day in
question they [Naidoo and the Plaintiff] had agreed to
meet at the
police station, where the complainant would pay Plaintiff his wages
and take his truck.
Put
to him that the Plaintiff did not steal the truck as he/Plaintiff was
living in the truck where the complainant was operating
business, he
stated that he disputes that because the complainant opened a case of
theft of that truck against the Plaintiff in
the morning on the same
day [30 August 2008]. He reiterated that he interviewed the
complainant/Naidoo who pointed out the suspect/Plaintiff
to him. That
when he interviewed the complainant Naidoo, he did not disclose to
him that he and the Plaintiff had a dispute alleged
by the Plaintiffs
counsel.
Put
to him that the Plaintiffs version is that the complainant was
avoiding him, not taking his calls and went to open a case of
theft
fully knowing that the truck was with the Plaintiff and that
he/Naidoo knew exactly where the Plaintiff was, he stated that
is not
what Naidoo told him; that Naidoo told him that the Plaintiff had
disappeared with his truck. That he cannot testify to
the reason why
the complainant failed to appear in court on all the occasions as a
result of which the case was withdrawn and that
it is only the
complainant who can testify to why he did not attend to court.
That
concluded the case for the Defendant.
For
the Plaintiff, Mutandwa Rusike, the Plaintiff himself testified.
He
testified that he is a Zimbabwean national living in Zimbabwe; that
he came to South Africa [on the day of the trial] specifically
for
this case and that for that purpose he was staying in Tembisa.
He
testified that when he was arrested on 30 August 2008 he was staying
at Vostalian mine in Middleburg. That at the time he was
employed by
Mr. Naidoo and was working at the mine; that they were contracted to
the mine.
He
testified that he was a driver, driving the truck that carried coal
from the mine to Majuba power station, and that his salary
was RI0
000. 00 per month; further that he started working for Naidoo in May
2008.
He
testified that he was staying at the mine, that he kept the truck at
the mine and that he slept in the said truck, that the truck
was his
home.
He
testified that they were working 24 hrs a day, they were two drivers
and they stayed in that truck. That the truck was staying
at the
mines and if it did not have a job to do it was parked in Middleburg.
He
testified that he and Naidoo had a good relationship but that Naidoo
did not pay them their salaries. That he worked for Naidoo
for almost
three (3) months and he never paid him in any single month.
He
further testified that he tried to engage Naidoo as to why he did not
pay him and Naidoo, in the first month when he asked for
his salary
said that the mine did not pay him; the second month again he said
that they did not pay him, and on the third month
his [Plaintiffs]
supervisor told him that he was paid and that the mine had paid
Naidoo.
He
testified that he then asked Naidoo for his salary and Naidoo said
that he was coming to the mine, but he did not come. That
it was on a
Friday [when he asked about his salary], and they did not have job to
do at the mines that day so they went to park
the truck in
Middleburg.
He
testified that on the Saturday morning [30 August 2008] he went back
to the mines to see if there were jobs to do, and when he
arrived
there, the mine security officers informed him that Naidoo had phoned
and had said that he/Plaintiff must hand over the
truck keys to the
mine security.
He
testified that he then told the security officers that he was not
going to give them the keys (i.e. he refused to give them the
keys to
the truck), stating to them that Naidoo himself must come and fetch
the truck keys from him and pay him his salary because
he/Naidoo was
the one who employed him and gave him the said keys. Further that the
security officers then informed him that it
was an instruction from
their boss, but that he refused to give them the keys; that
they/security officers then wanted to take
the keys from him by
force, and seeing this he then drove off to Hendrina police station
[on the other side of Middleburg]; that
the mine where they operated
was between Hendrina and Middleburg.
He
testified that at the Hendrina police station, he told them the story
[pertaining to the salary dispute between him and Naidoo]
and that
they told him that it was a labour issue; that he must go and report
it at the Middleburg Labour offices.
He
further testified that when he left Hendrina police station he got
into the truck and he was phoned by the people from tracker
asking
him where he was taking the truck to; he told them that he was at the
Hendrina police station. They said that his boss/Naidoo
reported to
them that he was running away with the truck, that he told them that
he was not running away with the truck but that
he was at Hendrina
police station to report that Naidoo had instructed the mine security
officers to take the truck away from him
while he/Naidoo did not pay
him his salary.
He
further testified that the tracker personnel then put the phone on
conference mode where all three (3) could speak, i.e. himself,
Naidoo
and the tracker personnel, and they told Naidoo that he/Plaintiff
says that he/Naidoo did not pay him for three (3) months;
that Naidoo
said that he did not have a problem to pay him, that he/Plaintiff
must go to the mine and he will pay him there and
take the truck.
He
testified further that he drove back to the mine and waited for
Naidoo for four (4) hours, but that he/Naidoo did not come, that
instead he/Naidoo sent one Paul who was servicing the truck to come
and take the truck. That he/Plaintiff then phoned the tracker
people,
as they had agreed with the tracker people that if Naidoo did not
come he must phone and tell them. That the tracker people
again
called Naidoo and they talked to him and he said that he/Plaintiff
must go to the workshop with Paul, that he was coming
there. They
went to the workshop and waited there for him for over an hour. Paul
called him and he/Naidoo said that the Plaintiff
must go to the
Middleburg police station to meet him there so that he would pay him
his salary, and the police would see that he
has paid him.
He
further testified that since Middelburg is in town they could not go
there with the truck; they thus parked the truck at Paul’s
yard
and drove with Paul’s van to the police station.
He
testified that when they got to the reception at the Middelburg
police station on the Saturday, 30 August 2008, they saw Naidoo;
that
Naidoo then called a police officer and pointed to him/Plaintiff and
said this is the ‘guy’, i.e. the suspect;
that the police
officer then arrested him.
He
testified that he stayed in custody until December 2008; that he
first appeared in court on Monday 01 September 2008 when the
matter
was postponed for further investigation and for bail application.
He
further testified that he appeared in court approximately 10 to 11
times before the charges were withdrawn. That every time he
appeared
in court the case was remanded for further investigation; and that
the complainant/Naidoo never came to court on all the
days that
he/Plaintiff appeared in court.
He
testified that on the last day of his appearance, in May 2009 he was
called in and the prosecutor informed him that the case
was withdrawn
and that he must go collect his passport. Further that the
complainant Naidoo was not present in court on the day
the matter was
withdrawn.
He
reiterated that when he arrived at the police station at Middleburg,
Naidoo was there, and that he was pointed out to the police
by
Naidoo.
He
testified that he did not explain his side of the story to the
arresting police officer nor to any police officer; further that
he
did not make any statement because the police officers just said to
him that he was arrested for fraud, theft and driving a
vehicle
without the owner’s consent and that they then gave him a sheet
with charges and told him to sign the said sheet.
That he then signed
the sheet in question.
He
testified that he did not steal Naidoo's truck, that Naidoo gave him
the truck; he was the one in charge of the truck because
he was the
driver thereof. That Naidoo had given him permission to drive the
truck when he employed him to drive the said truck;
he was thus
surprised when Naidoo said that he had stolen it.
He
testified that the arrest pained him a lot because he worked for
three months and Naidoo did not pay him his salary; that when
he went
to him to claim his money, he/Naidoo made the police arrest him and
the police did not ask him to tell his side of the
story to verify if
he had a case to answer or not; they just arrested him and he stayed
in prison for three (3) months; that when
he went to Middleburg
police station he thought that the police were going to him help,
instead they arrested him.
He
testified that he was called to the police station by Mr. Naidoo who
said that he must come and meet him there.
Under
cross examination he stated that he thought that the police were
going to help him to get his money/salary from Naidoo because
he had
a problem with Naidoo.
He
stated that he did not want to give keys to the mine security because
he was not employed by the mine but by Naidoo, and that
they were
dealing directly with their boss/Naidoo not with the mine. That
therefore when the mine security came to him to take
the truck he
would not give them the keys as no one was supposed to take the truck
from him except Naidoo, the person who had employed
him.
He
disputed that his plan was to keep the truck until after Naidoo had
paid him his salary, stating that Naidoo never came to him
to fetch
the truck keys, but that he sent people to come and fetch the said
keys.
He
stated that Naidoo went to all the trouble of calling Tracker stating
that he had stolen the truck because he/Naidoo did not
want to pay
him his salary. That Naidoo reported to tracker that he had stolen
the truck because he wanted to avoid paying him
his salary; and that
up until the day of the trial Naidoo had not paid him a cent.
He
reiterated that it was not his plan to keep the truck until Naidoo
had paid him his salary; that he just could not hand over
the truck
keys to the mine security and/or anyone if not told by Naidoo
himself. That it is not true what Naidoo reported to the
Tracker
people that he had stolen the truck. That when the tracker people
spoke to him and Naidoo, they all agreed that they were
going to meet
at Hendrina and he would give/hand over the truck to Naidoo and not
to anyone else.
He
disputed that Naidoo could not get hold of him and/or that he
attempted to get hold of him because he had disappeared with the
truck, stating that the tracker people had managed to find him
because it was Naidoo who had given them his/Plaintiff s number.
That
Naidoo went to all the trouble of reporting him to tracker and to the
police because he did not want or was avoiding paying
him his salary.
He
stated that after the Hendrina police station told him to go to the
Labour Court as this was labour issue, he did not go to the
CCMA
because when the tracker people called him they, with Naidoo, had
agreed that they would meet at the mine where Naidoo would
come and
pay him, but that Naidoo never showed up.
He
reiterated that Naidoo pointed him to the police and said this is
‘the guy’. He disputed that Botha arrested him
on
information from Naidoo and that therefore he acted lawfully, stating
that Botha never listened to his side of the story. That
he was never
even asked or given a chance to give an explanation.
He
disputed that he ever mentioned to the police officer/Botha that he
would talk in court; stating that he was merely given documents
written in Afrikaans to sign and they were not explained to him. That
he would not have said that he will talk in court because
he did not
even have a lawyer, or money to pay a lawyer.
He
stated that the truck was his home; that he stayed in it while at his
work place. He used it as his house because he did not
get housing.
Put
to him that Botha’s arrest was lawful, and based on reasonable
suspicion/ grounds that he/Plaintiff had committed a crime;
he stated
that he does not think that the arrest was lawful because if Botha
had asked him to explain why he was taking the truck
he/Botha would
have seen what the reason was. That he was working for Naidoo who had
never fired him and that the truck was his
responsibility; further
that Naidoo did not look for him otherwise he would have found him at
the mine, where he was.
He
stated that he agreed that the complainant/Naidoo misled the police;
stating however that Botha was wrong [in arresting him]
because he
used misleading facts without even asking facts from him to see if
the facts he was given [by Naidoo] were true/correct
or not; that
that meant that automatically there was negligence from the police.
That
concluded the evidence of the Plaintiff, and the evidence pertaining
to the w'hole matter.
It
is common cause that the only issue to be decided by the court is the
wrongfulness of the arrest; and to this extent the Defendant
bears
the onus to prove the lawfulness of the arrest.
From
the evidence and submissions by Defendant’ counsel it is clear
that the Defendant contends that the Plaintiff was arrested
on the
complainant/Naidoo’s allegation that there was a theft of his
truck; that the complainant/Naidoo had laid a charge
of theft of the
said truck against the Plaintiff, which formed the basis of
Plaintiffs arrest by Botha; and that the arrest was
reasonable in
terms of section 40 (1) (b) of
Criminal Procedure Act 51 of 1977
, as
amended (“The Act”), which authorises a police officer to
arrest without a warrant on reasonable suspicion that
a person has
committed a schedule 1 offence. It is common cause that theft is a
schedule 1 offence.
The
onus is thus on the Defendant to prove on a balance of probabilities
that Botha’s arrest of the Plaintiff on 30 August
2008 was
reasonable and lawful.
From
the facts and evidence before court it appears that the only role
played by Botha was in arresting the Plaintiff on 30 August
2008, and
this after Naidoo, the complainant had laid a charge of theft of his
truck and fraud of diesel against the Plaintiff;
and according to
Botha the truck in question was found in the possession of the
Plaintiff, the Plaintiff even gave Botha the keys
to said truck.
Looking
at the entire evidence of the Plaintiff it is mainly based on the
salary dispute between the Plaintiff and the complainant
Naidoo. It
was never disputed that basis upon Botha arrested the Plaintiff
emanated from criminal charges laid by the complainant
Naidoo against
the Plaintiff, and that in fact the Plaintiff was pointed out to
Botha by Naidoo as the suspect.
The
Plaintiff corroborates Botha’s evidence that when he/Plaintiff
arrived at the police station at Middleburg, Naidoo, the
complainant
was there, that Naidoo then called a police officer and pointed to
him/Plaintiff and said this is the guy, i.e. he/Plaintiff
was pointed
out to Botha as the suspect by Naidoo, as a result of which Botha
arrested the Plaintiff.
He/Plaintiff
testified that when they got to the reception at the Middelburg
police station on the Saturday, 30 August 2008, they
saw Naidoo; that
when he went to him to claim his money he/Naidoo made the police to
arrest him. Clearly the Plaintiff himself
recognises it is actually
Naidoo who instituted criminal proceedings against him and that the
police officer, Botha, acted at the
instance of the complainant.
Botha
testified in his evidence that on the day in question he was given a
docket to investigate; that there was a complainant’s
statement
and that he further interviewed the complainant Naidoo who informed
him amongst others that the Plaintiff had stolen
his truck. Naidoo
pointed the Plaintiff to him as the suspect in question, he found the
Plaintiff, who gave him keys to the truck
in question, in possession
of the said truck.
The
Plaintiff, in his evidence in chief testified that since Middelburg
is in town they could not go to Middelburg with the truck
and that
they thus parked the truck at Paul’s yard and drove with Paul’s
van to the police station. Something strange
about this evidence is
that it was never disputed in cross examination of Botha that the
Plaintiff never brought the truck to the
police station! Earlier in
his evidence the Plaintiff testified that when the truck in question
herein was not operating at the
mines they would park it in
Middelburg, which is contrary to his evidence that since Middelburg
is in town they could not go to
Middelburg with the truck. From the
contradictions in his evidence herein, the Plaintiff seems not to be
entirely truthful in this
regard, it was never disputed in cross
examination the Plaintiff was in possession of the
truck
in issue herein when Botha arrested him after Naidoo had laid a
charge of theft against him.
Botha
testified that based on the facts before him he arrested the
Plaintiff after explaining his section 35 constitutional rights
to
him. That he spoke in English with the Plaintiff and that the
Plaintiff spoke English well, [which I may confirm from his evidence
in court].
This
was never disputed in cross examination, nor was it ever put to Botha
that his arrest of the Plaintiff was unlawful. It was
also never put
to Botha in cross examination that Plaintiff never stated on the
warning statement, page 63 of the bundle, that
he would make his
statement in court. Only during his cross examination did the
Plaintiff state that the police officers spoke
to him in Afrikaans
and he did not understand, that he was merely given documents to sign
not knowing what was in those documents.
This was never put to Botha.
Surely
Plaintiffs counsel had all the documents before trial and he clearly
consulted with the Plaintiff prior to trial, as he put
Plaintiffs
version to Botha during cross examination. If indeed the police
officers and/or Botha spoke to the Plaintiff in Afrikaans
as alleged
by the Plaintiff, Botha would surely have been confronted with this
crucial aspect by Plaintiffs counsel.
Botha
testified that the Plaintiff did not have a fixed address, thus he
could not just release him on warning. The Plaintiff himself
testified that he stayed in the truck and that the truck in question
was his home. Actually it was also never disputed during cross
examination that when Botha asked the Plaintiff during the arrest
where he stayed the Plaintiff told him/Botha that he did not
have a
fixed address. It was actually put to Botha that the Plaintiff stayed
in a truck at the mines. That cannot be termed a fixed
address for
purposes of bail or warning. It could thus not be a question of Botha
merely taking a warning statement from the Plaintiff
and releasing
him to appear in court on a specified date.
From
all the evidence before court it does seem, however, that there were
labour issues between Naidoo, the employer and the Plaintiff,
the
employee, pertaining to the payment of Plaintiffs salary and
retention of the truck by Plaintiff in lieu of payment of his
salary
by Naidoo. This labour issue is between Naidoo and the Plaintiff.
Botha testified that Naidoo never disclosed to him that
he and the
Plaintiff had some labour issues/disputes.
If
there is a person who may have laid false charges against the
Plaintiff knowing very well that there were issues to be resolved
between him and the Plaintiff, it is Naidoo. The Plaintiff himself
stated in his evidence that, Naidoo is the one that misled the
police
officers and/or Botha. From the evidence it has not been shown that
Botha was privy to such information and/or party to
Naidoo’s
conduct.
As
far as Botha is concerned a genuine charge of, amongst others, theft
of a truck was laid against the Plaintiff and the said truck
was
indeed found in the possession of the Plaintiff who gave Botha the
keys to the truck in contention herein after Naidoo had
pointed the
Plaintiff to Botha as the suspect in question.
Botha
testified that as theft is a schedule 1 offence, he exercised his
discretion in terms of section 40(1 )(b) of the Act, which
provides
that a peace officer may without a warrant arrest any person-
(b)
whom he reasonably suspects of having committed an offence
referred
to in Schedule 1
It
has been held in Duncan v Minister of Law and Order 1986
(2)
SA 805 (A) at 818G-H that the jurisdictional facts for a section 40(1
)(b) defence are that:-
i.
the arrestor must be a peace officer;
ii.
the arrestor must entertain a suspicion
iii.
the suspicion must be that the suspect (arrestee) [the Plaintiff in
this case] committed an offence referred to;
From
all the facts set out herein it is clear that the Botha satisfies the
jurisdictional facts aforesaid. He/Botha is a police
officer; he
entertained
a suspicion; Naidoo had laid a charge against the Plaintiff and had
even made a statement pertaining thereto; The Plaintiff
was found in
possession of the truck Naidoo alleged him to have stolen, after
Naidoo had laid the charge, and he/Plaintiff even
gave Botha the keys
to the truck in question.
There
is no shred of evidence by the Plaintiff which indicates in anyway
that in arresting him Botha acted unreasonably and unlawfully
arrested him. In fact it is clear that Naidoo, the complainant may
have maliciously laid false charges against the Plaintiff because
of
the labour issues they had, but Botha and/or the police officers
cannot be said, on the facts before court, to have been in
cahoots
with Naidoo. Further the Defendant cannot be held responsible for
Naidoo, a private person’s conduct, malicious or
otherwise.
Objectively,
looking at all the facts and on the totality of the evidence before
this court I am satisfied that the Defendant has
proved, on a balance
of probabilities that the arrest of Plaintiff was lawful and
reasonable under the circumstances.
In
the result the Plaintiffs claim is dismissed with costs.
_______________________________
L
M MOLOPA - SETHOSA J
JUDGE
OF THE HIGH COURT