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[2013] ZAECELLC 8
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Tinto v Minister of Police (EL18/2012, ECD 318/2012) [2013] ZAECELLC 8; 2014 (1) SACR 267 (ECG) (15 October 2013)
23
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case no: EL18/2012
ECD 318/2012
Date heard: 9-10, 30 Sept
Date delivered: 15 Oct
2013
In
the matter between
VELILE
TINTO
Plaintiff
Vs
THE
MINISTER OF POLICE
Defendant
JUDGMENT
___________________________________________________________________
PICKERING
J
:
[1]
This is an action based, initially, on defamation, injuria and on
invasion of privacy
in which plaintiff claims the sum of R500 000,00
as and for damages. The defamation claim was jettisoned during
the
course of the trial. With regard to the remaining claims
plaintiff pleaded that the police, including a certain warrant
officer
Smith (“
Smith
”), wrongfully and with the
intent to injure him, “
demanded to search the plaintiff’s
motor vehicle without a search warrant nor just and lawful cause;
said that all lawyers
deal with criminals when the plaintiff
introduced himself as an attorney; and asked what the plaintiff was
hiding when the plaintiff
refused to accede to the search of his
motor vehicle without a warrant.
”
[2]
Plaintiff pleaded further that this conduct “
humiliated and
degraded
” him and “
invaded his constitutional
right to privacy
.”
[3]
Defendant in his plea admitted that Smith did not have a search
warrant when he requested
plaintiff to allow the police to search his
vehicle and admitted further that when plaintiff refused such
permission Smith had
asked him “
why, if he had nothing to
hide, he did not allow his vehicle to be searched.
”
Defendant denied, however, that Smith had “
demanded
”
to search the vehicle and denied that he had said that all lawyers
deal with criminals.
[4]
Defendant pleaded further that Smith had requested plaintiff to allow
the police to
search his vehicle because he held the reasonable
belief that there was an article referred to in
section 20
of the
Criminal Procedure Act, no 51 of 1977
, in his vehicle and believed on
reasonable grounds that a search warrant would have been issued to
him if he had applied
for one but that the delay in obtaining
such a warrant would have defeated the object of the search.
The defendant pleaded
further that after Smith had requested
plaintiff to allow the policemen to search his vehicle, plaintiff had
requested the police
to allow him to drive his vehicle to his office
where it could be searched, but that on arrival at the office,
plaintiff had refused
to allow any search to be conducted.
[5]
Plaintiff is an attorney of this Court, having been admitted as such
during 1999.
He is presently residing and practising in
Pretoria as Velile Tinto and Associates although he also has what he
termed as being
a “
national footprint
” with
offices in Johannesburg, Cape Town, Kwa-Zulu Natal and East London.
[6]
During November 2010 he was practising in East London with his
offices at 5 Pine Park.
His firm at that time was on the panel
of attorneys for Standard Bank, First National Bank (“
FNB”
)
and Nedbank.
[7]
On the morning of 11 November 2010 he was working in his office until
lunch time.
He needed to deposit money at Standard Bank in
Frere Road in the vicinity of the Vincent Park shopping mall.
Before going
there, however, he wished to withdraw money from the ATM
at the FNB which was situated at Vincent Park mall. He
accordingly
proceeded in his red Volkswagen Polo GTi motor vehicle to
the particular section of the mall where, it is common cause,
Nedbank,
FNB and Absa banks are situated.
[8]
He had with him in the car two male passengers. One of the
passengers was a
certain Tamsanqa Mafa, the “
cousin brother
”
of a friend of plaintiff’s who was employed as an attorney in
the office of the State Attorney, Mthatha. The
other passenger
was a friend of Tamsanqa’s. Tamsanqa had come to
plaintiff’s offices to borrow money and plaintiff
intended to
draw cash for this purpose from the ATM at FNB.
[9]
All the parking spaces next to FNB were full. Plaintiff
accordingly double-parked
his motor vehicle but left Tamsanqa in the
driving seat in case his vehicle had to be moved. He withdrew
the money from the
ATM and returned to his vehicle. According
to him he was parked at the mall for no more than 5 minutes.
From the mall
he drove to the Standard Bank in Frere Road. The
parking lot in front of the bank was full and he therefore proceeded
to
the Balfour Park parking lot in the next block where he parked in
front of a shop known as Rama’s. He sent Tamsanqa
to
deposit his money at the Standard Bank whilst he waited in his motor
vehicle. He was still waiting, checking his petrol
slips, when
he noticed a police vehicle park next to him. A policeman, whom
it is common cause was Smith, came up to his
window. Plaintiff
assumed that Smith was admiring his car but, instead, Smith knocked
on his window. He asked plaintiff
what he was doing to which
plaintiff replied that he was “auditing”. Smith
then asked plaintiff where he had
been during the last 30 minutes.
Plaintiff explained to him that he had come from his office via
Vincent Park mall.
Smith then informed plaintiff that he wished
to search the motor vehicle. Plaintiff asked why. Smith
replied that the
police had received a call from Nedbank to the
effect that a silver Mercedes Benz and a brown Jetta were suspected
of being involved
in the planning of a robbery. Plaintiff
pointed out that he was driving a red Volkswagen to which Smith added
“
and a red Polo
.”
[10]
Plaintiff then told Smith that he was a practising attorney. He
produced a card with his
picture on it identifying him as such and he
also showed Smith his identity document. According to plaintiff
Smith then stated
“
I know the lawyers – they are
dealing with criminals.
” He insisted that he wanted
to inspect the boot of the motor vehicle. According to
plaintiff Smith also asked
him what it was that he was hiding by
refusing to accede to his request to search the motor vehicle.
Plaintiff denied, as
was put to him under cross-examination by Mr.
Bloem S.C., who appeared for defendant together with Mr. Mpahlwa,
that Smith had
uttered these words at a later stage at plaintiff’s
offices.
[11]
Plaintiff stated that as a law-abiding professional man he was deeply
insulted by both these
statements which implied, so he said, that he
was not only associating with criminal activities but was himself
involved in such
activities.
[12]
Smith then told plaintiff that he did not have “
all the
time
” which plaintiff construed as meaning that Smith
intended to search the motor vehicle whether or not plaintiff agreed
thereto.
Plaintiff did not want Smith to conduct what would be
an embarrassing search in public. He accordingly told him that
if he
wanted to do anything he could do it at plaintiff’s
offices which were close to Balfour Park. He denied having
requested
to be allowed to drive his vehicle to his offices.
Smith agreed to follow him to the offices. In this regard
plaintiff
also denied that he had agreed that his motor vehicle could
be searched at his offices. He was intending on arrival at the
offices to reason with Smith in the hope that he would accept his
word and abandon his prospective search.
[13] On
the way to the offices he telephoned Mr. Nico du Plessis (“
du
Plessis
”) who was then, according to plaintiff, his
candidate attorney, and told him what had happened. On arrival
du Plessis
was waiting for him outside and spoke to Smith.
Smith was told that if he wished to proceed with the search he should
get
a search warrant. Plaintiff initially denied that it was at
this stage that Smith had asked him what it was that he was hiding.
Under cross-examination, however, he stated that the police
“
continued to ask me what I was hiding.
”
[14]
After some further discussion, plaintiff had a change of heart.
He told Smith that he could
go ahead and search the vehicle, saying
that he had nothing to hide. The police, however, said it was
“
too late
” and left the scene without searching
the vehicle.
[15]
Nico du Plessis stated in his evidence that at the time of the
incident he was in fact a practicing
attorney in the employ of Velile
Tinto and Associates. He is presently a director of Tinto, du
Plessis Incorporated.
He confirmed having been telephoned by
plaintiff who asked him for assistance. At that time du
Plessis’s father was
Deputy Director of Public Prosecutions in
Mthatha. He telephoned his father to reassure himself as to the
circumstances in
which the police could search a motor vehicle
without a warrant. His father duly advised him of the legal
position.
[16]
Plaintiff then arrived in his motor vehicle followed by the police
motor vehicle. Plaintiff
told him what had happened in front of
Rama’s and also stated that whilst at Rama’s he had asked
the police to follow
him to his office. Du Plessis discussed
the matter with Smith and asked what the problem was. Smith
told him that he
believed that plaintiff’s motor vehicle was “
a
suspected vehicle involved in bank robberies.
”
[17]
According to du Plessis he was extremely embarrassed by the spectacle
unfolding in the office
parking lot in front of clients and staff who
had begun peeping out of the windows. He asked Smith whether he
had a search
warrant. Smith replied that he did not. Du
Plessis then told him that they would not consent to a search of the
motor
vehicle without a warrant to which Smith answered that he could
go to court and get one. He told du Plessis, however, that,
as
du Plessis well knew, it would take a long time to obtain one.
Du Plessis replied that, to the contrary, Smith could obtain
one as a
matter of urgency within an hour.
[18] The
discussion continued for, in du Plessis’s estimation,
approximately 20 to 30 minutes.
Plaintiff suddenly told the
police that they could search the motor vehicle. Du Plessis
thought that plaintiff had become
frustrated and tired of the
matter. The police, however, did not search the vehicle but
just left. Du Plessis had no
idea why they should have done so
after having been so insistent about searching but surmised that they
had realized that they
had made a mistake. He denied having
been belligerent or having bullied the police as was put to him by
Mr. Bloem.
[19]
Warrant Officer Smith testified that he had been a policeman since
1988, firstly with the Flying
Squad and then with the Robbery
Response Unit in which latter unit he dealt,
inter alia
, with
bank related robberies and offences.
[20] On
the day in question he was patrolling the city area in his marked
police motor vehicle, together
with two colleagues, when he received
a call from Warrant Officer Boatwright of the Crime Intelligence
Unit. Boatwright informed
him that he had been contacted by Mr.
Webb (“
Webb
”) a former policeman now working for
Coin Security and contracted to Nedbank in East London. It is
not in dispute that
Webb employed a number of informers who were
tasked with observing the people and vehicles in the parking area in
the vicinity
of the banking complex at Vincent Park shopping mall and
with reporting any suspicious behavior to Webb.
[21]
According to Smith the police worked “
in close contact
”
with Webb and the informers and would, on receipt of reports, go out
and check them because, so he said, there had been
numerous robberies
at the banking area of the mall and people were being robbed “
every
single day”
at the banks
.
He described the
banking mall as being a “
high crimes area
”.
[22] He
stated that it was the
modus operandi
of certain criminals to
park their vehicles near the banking area and to then walk backwards
and forwards between the various branches
of the banks, looking for
likely victims, especially those who had withdrawn large sums of
money. If a particular vehicle
was parked in the area for
longer than an hour the informers would keep an eye on its occupants
and, if their conduct was suspicious,
they would then note the
registration letters and number of the vehicle and contact Webb.
[23]
This evidence was not disputed.
[24] On
the day in question Boatwright informed Smith that certain informers
had reported to Webb
that the plaintiff’s motor vehicle, a red
VW Polo GTi, had been observed parked in the banking area of the mall
for “
approximately an hour and a half
” and that,
whilst the driver remained in the vehicle, the other two occupants
had been walking “
backwards and forwards
” to the
vehicle. Smith stated that it was conveyed to him that the
informers “
saw the vehicle parked and two guys walking
backwards and forwards to the car, then they would go to Nedbank and
then they would
come back to the car, then they would go to FNB, then
they would come back to the car, then they will go to the ABSA
branch, so
it was they were commuting between the banks, basically
that in my aspect (sic) they are looking for potential clients,
people
that were drawing out large sums of money.”
He
was given the registration letters and number of the vehicle.
[25]
Smith stated that he did not know the identity of the informers who
had furnished the information
to Webb but said that he had to act
upon the information because the mall was a “
high crimes
area
”. Furthermore, so he said, Webb’s
informers were “
sharp
” and
their
information was correct “
nine times out of
ten.”
He believed, on the strength of that information, that the occupants
of the vehicle had committed or were intending
to commit an offence.
He wished accordingly to search the vehicle for items such as illegal
firearms, bank cards, bank statements
“
that do not fit the
profile, all of that stuff we normally find in the vehicles when we
search, as well as large sums of cash sometimes.
”
[26] He
could not find the red motor vehicle at Vincent Park and accordingly
conducted a grid search
of the area surrounding Vincent Park.
Shortly thereafter he came across the vehicle in question at Balfour
Park where it
was parked alongside Rama’s shop, facing Balfour
Road. He parked his motor vehicle next to the driver’s
side
of the motor vehicle in which plaintiff and one passenger were
sitting. Plaintiff was busy with paperwork.
[27]
Smith knocked on the window and identified himself. He asked
plaintiff where he had been
in the last 30 minutes. Plaintiff
replied that he had come from Vincent Park mall. Smith informed
him that there had
been numerous robberies at Vincent Park and told
him that his motor vehicle had been seen parked there for one and a
half hours.
Plaintiff denied this.
[28]
Plaintiff produced a card identifying himself as an attorney.
According to Smith he then
explained the situation to plaintiff and
asked for permission to search the motor vehicle. In reply
plaintiff asked whether
he could rather follow him to his nearby
offices where he would let them conduct a search. Smith acceded
to this request.
He denied that he had uttered any words to the
effect that lawyers dealt with criminals.
[29]
Although he admitted having asked plaintiff what he was hiding by
refusing to allow the vehicle
to be searched he denied that he had
said this at Rama’s and stated that he had said it whilst at
plaintiff’s offices
after plaintiff had refused to let him
search the vehicle there.
[30] He
then followed plaintiff’s vehicle to plaintiff’s
offices. On arrival du
Plessis came out of the door of the
offices. He was visibly upset and was talking on his cell
phone. According to Smith
he heard du Plessis saying “
your
worship – so they have to have a search warrant.
”
[31]
Smith told du Plessis to calm down. Du Plessis responded that
the police could not come
and search plaintiff’s motor vehicle
without a warrant. Smith was taken aback by what he described
as being du Plessis’s
arrogant attitude. It was at this
stage, according to him, that he asked plaintiff why, if he had
nothing to hide, he would
not allow them to search the vehicle.
[32]
Smith stated that he did not want to apply for a search warrant
because to do so would have taken
a couple of hours. He also
did not want to leave his colleagues alone to guard the motor vehicle
whilst he drove off to apply
for a warrant. He stated that du
Plessis was belligerent and that he had felt “
bullied
”.
Although he believed that plaintiff’s motor vehicle was somehow
concerned with the commission or intended commission
of an offence he
especially wanted to avoid a confrontation as both plaintiff and du
Plessis were attorneys. He decided to
just walk away. He
conceded that in so doing he had not properly carried out his duties
and stated that he felt bad about
this. He denied that
plaintiff had told him that he could search the vehicle.
[33] The
defendant also adduced the evidence of the aforementioned security
official Webb. He
stated that his security firm was contracted
to Nedbank. He confirmed Smith’s evidence that the
banking area at Vincent
Park mall was a so-called crime hotspot,
notorious for what he termed were associated bank robberies. In
order to combat
this he employed a number of reliable informers to
watch the area and to identify possible suspects.
[34] On
11 November 2010 two of his informers advised him that they had
observed a red Volkswagen
GTI with three occupants parked outside
Nedbank for a period of one and a half hours. During this
period the two passengers
would visit FNB and ABSA banks, returning
to the motor vehicle for a few minutes before again going back to the
banks without performing
any transactions whilst there. This
conduct, so he testified, was consistent with the
modus operandi
of criminals preying on innocent visitors to the banks. He
accordingly contacted Boatwright and relayed this information to
him.
[35]
That was the evidence led before me.
[36] I
should state at the outset that, having closely observed plaintiff in
the witness box and having
listened to his testimony, I have no doubt
whatsoever that he was not in any way involved in any nefarious
activity on the day
in question and that his evidence that he had
been parked for no more than 5 minutes at the Vincent Park mall can
be accepted in
preference to the allegations of the anonymous
informers. His evidence in this regard was, in any event, not
seriously challenged
by Mr. Bloem under cross-examination and it is
clear, in my view, that the information given by the informers to
Webb was either
false or gravely mistaken. It is unfortunate to
say the least that both Smith and Webb should have persisted during
their
evidence with their slurs against plaintiff’s character
by stating that they still believed that he had somehow been involved
in the commission or planning of an offence at the Vincent Park mall.
[37] As
will have been seen from the above exposition of the facts there are
a number of issues in
dispute which it is necessary to resolve before
turning to consider the legal principles involved. These
disputes relate
more specifically to plaintiff’s averment that
Smith had stated that all lawyers deal with criminals; where
plaintiff were
when Smith asked him what he had to hide by refusing
to allow a search of the vehicle, the circumstances under which
plaintiff
and the police came to proceed to plaintiff’s
offices, and whether plaintiff had, at his offices finally agreed to
the vehicle
being searched.
[38]
Only one of these conflicting versions can be correct. The onus
is on plaintiff to prove
that his version is the truth. In
order to discharge this onus plaintiff must show by credible evidence
that his version
is more probable and acceptable than that of Smith.
In these circumstances what was said in
National Employers’
General Insurance Co Ltd v Jagers
1984 (4) SA 432
(E) at 440 D –
G is apposite:
“
It seems to me, with
respect, that in any civil case, as in any criminal case, the onus
can ordinarily be discharged by adducing
credible evidence to support
the case of the party on whom the onus rests. In a civil case
the onus is obviously not as heavy
as it is in a criminal case, but
nevertheless where the onus rests on the plaintiff as in the present
case, and where there are
two mutually destructive stories, he can
only succeed if he satisfies the Court on a preponderance of
probabilities that his version
is true and accurate and therefore
acceptable, and that the other version advanced by the defendant is
therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff’s
allegations against the general
probabilities. The estimate of the credibility of a witness
will therefore be inextricably
bound up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then
the Court will accept his version as
being probably true. If however the probabilities
are evenly balanced in
the sense that they do not favour the
plaintiff’s case any more than they do the defendant’s,
the plaintiff can only
succeed if the Court nevertheless believes him
and is satisfied that his evidence is true and that the defendant’s
version
is false.
”
[39] As
I have said above I am satisfied that plaintiff was an entirely
honest witness who was not
in any way involved in any criminal
activities. I am also satisfied that he was, to the best of his
ability, attempting honestly
to recount the circumstances of the
incident. He was, however, an emotional witness, perhaps
understandably so, whose evidence
was at times confused and somewhat
difficult to follow.
[40] Du
Plessis, Smith and Webb were generally good witnesses who made a
favourable impression upon
me.
[41]
With regard to the issue of whether Smith had stated that lawyers
deal with criminals when plaintiff
introduced himself as an attorney,
the probabilities, in my view, if not evenly balanced, tend to favour
Smith’s version.
[42]
Plaintiff’s evidence as to why they moved from the parking lot
in front of Rama’s
shop to his offices was somewhat vague and
confusing, possibly because of plaintiff’s shock at being
confronted by Smith.
Apart from plaintiff’s averments
concerning Smith’s alleged statements the rest of the
discussion at the Rama parking
lot appears to have been relatively
civil in nature. Once plaintiff had expressed his objection
thereto Smith did not insist
on searching the vehicle there and
then. Although plaintiff denied having requested Smith to
follow him to his offices du
Plessis stated to the contrary that
plaintiff told him he had asked the police to do so. In these
circumstances it is, in
my view, improbable that Smith would have
made pejorative remarks about lawyers dealing with criminals at that
stage. He
had no reason to do so. That being so I cannot
find that Smith’s denial of having uttered the words in
question is
false.
[43] In
the light of what I have said above it is also, in my view, more
probable that the statement
admittedly made by Smith as to what
plaintiff had to hide was in fact uttered at plaintiff’s
offices as was testified to
by Smith. He had no reason to make
that statement at the Rama Parking lot. That statement is, in
my view, also consistent
with Smith, who was under the impression
that plaintiff had agreed to the vehicle being searched at the
offices, having become
frustrated once plaintiff had refused him such
leave and having accordingly lost his patience. Furthermore,
plaintiff himself
stated that at his offices the police “
continued
to ask me what I was hiding
” before stating that he could
actually no longer remember this clearly.
[44] The
dispute as to whether plaintiff had eventually agreed to his vehicle
being searched is rather
more difficult to resolve. On the one
hand, plaintiff’s evidence to this effect is corroborated by
that of du Plessis
and is also consistent with plaintiff himself
having lost patience at the lengthy discussion. On the other
hand, as Mr. Bloem
submitted, if consent had been given, it was
improbable that Smith, after having been so insistent on searching
the vehicle would
have spurned such consent and merely left the
scene. The relevance of this issue, so Ms. Da Silva, who
appeared for plaintiff,
submitted, was that it indicated that Smith
did not
bona fide
believe that he had reasonable grounds to
search the vehicle. I will return to this issue hereunder.
[45] Ms.
Da Silva submitted further that Smith’s actions on the day in
question were unlawful
inasmuch as he had no reasonable grounds for
believing that if he were to apply for a search warrant it would be
granted to him.
She submitted, if I understood her correctly,
that in the event of it being found that Smith had no such reasonable
grounds then
his conduct in accosting plaintiff and demanding to
search his motor vehicle constituted an unlawful invasion of
plaintiff’s
right to privacy, despite the fact that Smith had
not actually carried through with a search of the motor vehicle.
[46]
Section 20(b)
and (c) of the
Criminal Procedure Act no 51 of 1977
provide that the State may seize any article:
“
(a)
…
which may afford evidence of the
commission or suspected commission of an offence…; or
which is intended to be used or is
on reasonable grounds believed to be intended to be used in the
commission of an offence.
”
[47]
Section 21
of the Act provides that subject,
inter alia
, to
the provisions of
section 22
, an article referred to in
section 20
“
shall be seized only by virtue of a search warrant issued –
(a) by a magistrate or justice, if
it appears to such magistrate or justice from information on oath
that there are reasonable grounds
for believing that any such article
is in the possession or under the control of or upon any person or
upon or at any premises
within his area of jurisdiction…
”
[48]
Section 22
, with which
section 20
must be read, provides that a
police official may without a search warrant search any person or
container or premises for the purpose
of seizing any article referred
to in
section 20:
“
(a) if the person concerned
consents to such search for and the seizure of the article in
question…; or
(b) if he on reasonable grounds
believes –
(i)
that a search warrant will be issued to him under paragraph (a) of
s
21(1)
if he applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat the object of
the search.
”
[49] In
terms of s14 of the Constitution everyone has the right to privacy,
which includes the right
not to have:
“
(a)
Their person or home searched;
(b)
Their property searched;
(c)
Their possessions seized…
”
[50]
This right to privacy is, in terms of s 36 of the Constitution,
subject to reasonable and justifiable
limitation. In
determining whether an individual’s right to privacy has been
infringed a balance must be struck between
the protection of that
right on the one hand and the State’s constitutionally mandated
task of prosecuting crime on the other.
See:
Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty)
Ltd and Others v Smit NO and Others
,
[2000] ZACC 12
;
2001 (1) SA 545
(CC).
[51] In
Magajane v Chairperson, Northwest Gambling Board and Others
[2006] ZACC 8
;
2006 (5) SA 250
(CC) reference was made in para 70 to
Thomson
Newspapers Ltd v Canada (Director of Investigation and Research,
Restrictive Trade Practices Commission)
[1990] 1 SCR 425
where La
Forest J stated as follows at 508:
“
The suspicions cast on
persons who are made the subject of a criminal investigation can
seriously, and perhaps permanently, lower
their standing in the
community. This alone would entitle the citizen to expect that
his or her privacy would be invaded
only when the State has shown
that it has serious grounds to suspect guilt. This expectation
is strengthened by virtue of
the central position of the presumption
of innocence in our criminal law. The stigma inherent in a
criminal investigation
requires that those who are innocent of
wrongdoing be protected against overzealous or reckless use of the
powers of search and
seizure by those responsible for the enforcement
of the criminal law
.”
[52] In
Thint (Pty) Ltd v National Director of Public Prosecutions and
Others; Zuma v National Director of Public Prosecutions and Others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC) Langa CJ, having stressed the importance of an
understanding of the range of protections for the right to privacy at
the different
stages of a criminal investigation and trial, added at
para 80:
“
Courts must take care that
in ensuring protection for the right to privacy, they do not hamper
the ability of the State to prosecute
serious and complex crime,
which is also an important objective in our Constitutional scheme.
”
[53] See
too:
Magobodi v Minister of Safety and Security and Another
2009 (1) SACR 355
(Tk) where at 358 H Miller J stated that “
the
Courts are duty-bound to critically regard search and seizure
actions, which invariably entail an invasion of privacy, to ensure
that such action was reasonable and justifiable in the
circumstances.”
See too
Ayob and Others v DPP and
Others
[2011] JOL 27349
(GSJ) at para 70 – 71.
[54] I
bear these principles in mind.
[55] In
Toich v The Magistrate, Riversdale and Others
2007 (2) SACR
235
(C) Thring J referred at 243 c – e with approval to the
following comments by Steytler
Constitutional Criminal Procedure
(1998) at 87 – 8:
“
Prior to a search there must
be reasonable grounds for belief relating to three issues:
first, that an offence has been committed,
second, that the articles
sought may afford evidence of the commission of that offence, and
third, that the articles are likely
to be on the premises to be
searched. With regard to the second issue, it has been held
that it is an insufficient standard
merely to ask whether the
articles are only possibly concerned with the offence. On the
other hand the constitutional standard
should not be as high as
whether the articles
will
be used as evidence. The
appropriate test is that set by s 20(b) CPA: articles may be seized
‘
which may afford evidence of the commission or suspected
commission of an offence.
’”
[56] In
the present matter Smith stated that he was given information,
emanating from informers, which
caused him subjectively to suspect
the involvement of the occupants of plaintiff’s motor vehicle
in the commission of an
offence and that he therefore
bona fide
believed on reasonable grounds that the motor vehicle contained
articles which might afford evidence of the commission of that
offence. But, as stated in
Ndabeni v Minister of Law and
Order and Another
1984 (3) SA 500
(D) at 511 D-E, the subjective
belief of the policeman concerned is by the way. In terms of s
20 reasonable grounds must
in fact exist and whether they exist must
be determined objectively.
[57] In
Watson v Commissioner of Customs and Excise
1960 (3) SA 212
(N) Milne J, as he then was, stated at 216 G-H:
“
There can only be reasonable
cause to believe … where, considered objectively, there are
reasonable grounds for the belief…(I)t
cannot be said that an
officer has reasonable cause to believe … merely because he
believes he has reasonable cause to believe
.”
[58] It
is necessary therefore to consider whether Smith’s belief that
a search warrant would
have been issued to him had he applied for
such was based on reasonable grounds and, in this regard, the onus is
obviously on the
State. In considering this issue the fact that
the information given to Smith emanated from informers comes to the
fore.
[59] In
Mabona and Another v Minister of Law and Order and Others
1988
(2) SA 654
(SECLD) Jones J stated at 658 I – 659 D that:
“
Every reasonable policeman
knows that our courts regard the evidence of informers with caution.
Informers are categorized
with accomplices, quasi – accomplices
and police traps as witnesses whose evidence must be subjected to
close and careful
scrutiny before it is accepted at all unless it is
corroborated. The reason is plain. This sort of witness
has a motive
to misrepresent the facts, and he is frequently in a
position to give circumstantial detail which may give his false
implication
of an accused person a misleading ring of truth.
See for example the remarks of Holmes JA in
S v Malinga and
Others
1963 (1) SA 692
(A). The second defendant
ought to be aware of the possible danger of an uncritical acceptance
of the word of an informer,
and, indeed, he agreed with the
proposition put to him in cross-examination that inaccurate or false
information is from time to
time given to the police by informers.
If the courts are cautious about accepting evidence given on oath and
subject to cross-examination,
all the more reason for the police to
be cautious about believing an informer’s unsworn and untested
information. Ordinarily,
a police arrest is based upon a sworn
complaint supported, perhaps, by sworn statements from witnesses.
In the case of an
informer, however, who insists upon anonymity and
whose anonymity is jealously protected by the police, this safeguard
is missing.
The informer makes no formal statement or
complaint. I do not suggest that the police cannot or should
not arrest a suspect
without a warrant in the absence of sworn
statements implicating him. The circumstances of a particular
case may justify
their doing so. But I am of the view that
where no sworn statement is available a reasonable policeman will
less readily
entertain a suspicion.
”
[60] At
660 D – F the learned Judge continued:
“
In evaluating the lawfulness
of the police actions I must bear in mind that at times it is
necessary to strike while the iron is
hot. If swift, effective
action is not taken, but instead ponderous enquiries, suspects may be
forewarned and evidence may
disappear.
”
[61] In
Minister of Safety and Security v Ndiniso
[2007] JOL19534
(SCA) the respondent’s motor vehicle was seized by the police
without a warrant. The police officer
who seized the vehicle
stated that he saw it being driven by a person whom he thought was
too young to “
own the vehicle
” and so he suspected
that there was something amiss. He radioed to the local police
station and asked that the vehicle
registration be checked. He
received a “
report
” from an unidentified person
that the model of the vehicle that he enquired about was different
from the model appearing
on the record of registration. He
suspected, then, that the vehicle had been stolen and might afford
evidence of the commission
of an offence. It was argued by the
State that the belief of the police officer who seized the vehicle
was reasonably held
because of the report which he had received to
the effect that the vehicle model did not match that on the
registration document.
The Court below (Petse J as he then was)
found that the police official’s belief that he would obtain a
search warrant was
not based on reasonable grounds.
[62] On
appeal, Lewis JA stated as follows at paragraph 8:
“
The real difficulty with the
state’s case is that no evidence is proffered by it as to the
nature or the status of the ‘report’
made to Somana [the
police official]; there is no information provided by the State as to
who made the report; what the capacity
and status of the person was;
where the information had been obtained or why it should be regarded
as reliable. There is
a mere assertion that a report indicated
that there was a difference between the model of the vehicle seen by
Somana and its description
on the registration papers. Would
that satisfy the magistrate or judge apprised of an application for a
search and seizure
warrant under section 21? I think not.
No facts were advanced to justify a finding that Somana’s
belief was based
on reasonable grounds.”
[63] In
Sigwebedlana v Minister of Police, (TK,GD)
unreported case no
27/94, dated 10 March 1994, applicant’s motor vehicle was
seized by a Sergeant Qiqimane without a search
warrant on the basis
that “
he had information (from a source or sources which he
declined to disclose because it would involve disclosing evidence to
be led
in a pending criminal case), that the vehicle had been used by
two named suspected robbers, presently facing criminal charges, in
committing a robbery”
and that he therefore reasonably
believed that the vehicle had been used in the commission of the
offence of robbery.
Davies AJ stated as follows in this
regard at p 3 of the judgment:
“
The question then is whether
averments made by Sgt Qiqinane suffice to establish objectively
reasonable grounds for the belief that
the vehicle was used in the
alleged robbery. In my view they do not. The reason put
forward for not giving more details
does not, it seems to me, hold
water. What was required at least was for the sergeant to
allege that the information came
from a reliable source and to
explain in some detail what it was and why it would be contrary to
public policy or the interests
of the administration of justice to
disclose more details. All that he says, in effect, is that it
would interfere with the
administration of justice. On this
first point then I conclude that respondent, who admittedly bears the
burden of proof,
has not shown that the vehicle fell within the terms
of section 20 of the Act.
”
[64] See
too:
Mnyungula v Minister of Safety and Security and Others
2004 (1) SACR 219
(TKH) in which the Court held that the existence of
a reasonable belief was absent because the policeman, who seized the
motor
vehicle in question, had formed his belief on the basis of a
“
tip
” from an unnamed informer to the effect that
the applicant was in possession of a stolen vehicle but thereafter,
despite
becoming aware of the fact that the vehicle‘s chassis
was stamped with letters indicating that it had in fact been
purchased
at a police auction had “
recklessly
”
failed to check this information on the National Traffic Information
System and the police auction register prior to taking
action.
[65] The
Canadian case of
Regina v Zammit
[1993] 15 CRR (2d) 17 is
instructive. At 23 - 24 the following is stated:
“
The factors to be considered
in assessing confidential information as the basis for reasonable
grounds were reviewed in R v Debot
(1986), 26 C.R.R. 275
, 30 C.C.C.
(3d) 207 (Ont. C.A.), affirmed
(1989), 45 C.R.R. 49
,
(1989) 2 S.C.R.
1140
, 52 C.C.C. (3d) 193. In Debot, the informer had identified
all the participants in the drug transaction. He also provided
the name of the supplier, the quantity of drugs to be involved, and
the location where the transaction was to take place.
The
informer had proved to be reliable on at least one previous
occasion. All participants in the transaction were known
by the
police to have had involvement with drugs and two of them had
previous drug-related convictions. Finally, police surveillance
demonstrated what appeared to be a drug deal.
On the basis of this evidence, both
Martin J.A., speaking for this court, and Wilson J., speaking for the
majority of the Supreme
Court of Canada, rejected the conclusion of
the trial judge and concluded that the police had reasonable and
probable grounds to
carry out the search.
In assessing confidential
information as the basis for reasonable grounds, Martin J.A. Stated
at pp 284 – 85 C.R.R., pp. 218
-19 C.C.C.:
‘
Consequently, a mere statement
by the informant that he or she was told by a reliable informer that
a certain person is carrying
on a criminal activity or that drugs
would be found at a certain place would be an insufficient basis for
the granting of the warrant.
The underlying circumstances
disclosed by the informer for his or her conclusion must be set out,
thus enabling the justice to
satisfy himself or herself that there
are reasonable grounds for believing what is alleged. I am of
the view that such a
mere conclusory statement made by an informer to
a police officer would not constitute reasonable grounds for
conducting a warrantless
search or for making an arrest without
warrant. Highly relevant to whether information supplied by an
informer constitutes
reasonable grounds to justify a warrantless
search or an arrest without warrant are whether the informer’s
“
tip
” contains sufficient detail to ensure it is
based on more than mere rumour or gossip, whether the informer
discloses his
or her source or means of knowledge and whether there
are any indicia of his or her reliability, such as the supplying of
reliable
information in the past or confirmation of part of his or
her story by police surveillance. I do not intend to imply that
each of these relevant criteria must be present in every case,
provided that the totality of the circumstances meets the standard
of
the necessary reasonable grounds for belief.’
In the Supreme Court of Canada,
Wilson J. laid down the concerns to be addressed in weighing evidence
relied on by the police to
justify a warrantless search. At pp.
71- 72 C.R.R, p. 215 C.C.C., she said:
‘
In my view, there are at least
three concerns to be addressed in weighing evidence relied on by the
police to justify a warrantless
search. First, was the
information predicting the commission of a criminal offence
compelling? Secondly, where that
information was based on a
“
tip
” originating from a source outside the
police, was that source credible? Finally, was the information
corroborated
by police investigation prior to making the decision to
conduct the search? I do not suggest that each of these factors
forms
a separate test. Rather, I concur with Martin J.A.’s
view that the “
totality of the circumstances
” must
meet the standard of reasonableness. Weaknesses in one area
may, to some extent, be compensated by strengths
in the other two.’”
[66] In
the present matter it is not in dispute that the banking area of the
Vincent Park shopping
mall is a crime “
hot spot
”.
Indeed, it is for this very reason that Nedbank has employed the
services of Webb and that he in turn has employed
a number of
informers.
[67] It
is clear from Smith’s evidence that he was well aware of the
problems relating to the
high incidence of crime at the mall and that
bank associated crimes were an almost daily occurrence. He had
previously worked
with Webb and the informers and he described the
latter as being “
sharp
”, by which he obviously
meant that they were efficient and reliable. He stated that
their information had in the past
been correct “
nine times
out of ten
”.
[68] The
information given to him was not based on mere gossip or rumors nor
was it merely conclusory
in nature. Unlike the information
relied upon in
Sigwebedlana’s
case,
supra
, it
consisted of a detailed report of what can only be described as being
highly suspicious conduct on the part of the occupants
of the motor
vehicle in question, which conduct was consistent with the known
modus operandi
of criminals preying on innocent victims at the
banking mall. This, in my view, serves to differentiate the
situation in
the present case to those which pertained in the
Ndiniso
and
Mnyungula
cases,
supra
.
[69] Ms.
da Silva, however, criticized the failure by Smith to have
corroborated the information by
means of an investigation, such as
checking CCTV cameras at the mall, instead of merely accepting it at
face value. In my
view, however, the information given to Smith
was such that swift, effective action was called for lest the
evidence which was
believed to be in the vehicle disappeared. In
these circumstances the police were, in my view, obliged to act upon
the information
received. Unfortunate as the result may be for the
plaintiff I am satisfied that the plaintiff’s constitutionally
protected
right to privacy was outweighed by the State’s
constitutionally mandated task of combating and prosecuting crime.
[70] Ms.
da Silva submitted further that the fact that Smith did not search
the vehicle, despite plaintiff
having eventually consented thereto,
justified the inference that he had never entertained a genuine
belief that he had reasonable
grounds for being granted a search
warrant.
[71] I
am prepared to accept in this regard that plaintiff did in fact
eventually consent to the search.
His evidence in this regard
was corroborated by du Plessis who had clearly been taken aback by
plaintiff’s sudden decision
to consent thereto.
In my view, however, Smith’s
failure to conduct the search has nothing to do with the issue of
whether, objectively viewed,
he had reasonable grounds at the time of
receiving the information for believing that he would be granted a
search warrant.
In any event, I am satisfied, as
stated above, that Smith did genuinely believe that he had reasonable
grounds to search the vehicle
and that such belief persisted until
after his arrival at plaintiff’s offices. In my view,
despite Smith’s protestations
to the contrary, the
probabilities are that, once at plaintiff’s office premises,
and during the course of his discussions
with du Plessis and
plaintiff, he realized that he was in fact dealing with a reputable
attorney and that his information might
well be wrong. It is
otherwise inconceivable that he would have just walked away. In
this regard, Smith’s claim
that he, an extremely experienced
policeman, felt “
bullied
” by plaintiff and du
Plessis, cannot, in my view, withstand scrutiny. The
probabilities are instead that it was his
realization that his
information might be wrong which caused him to abandon his attempts
to search the vehicle.
[72] Be
that as it may, I am of the view that Smith’s actions were not
reckless or overzealous. Having
regard to the totality of the
circumstances in the case I am satisfied that his conduct meets the
standard of reasonableness and
that the defendant has therefore
discharged the onus of proving that his aforesaid belief was based on
reasonable grounds.
[73]
This conclusion renders it unnecessary to deal with the further
submission by Ms. da Silva to
the effect that, in the absence of
reasonable grounds for his belief, the mere request by Smith to
search the vehicle was an unlawful
invasion of plaintiff’s
right to privacy. I would merely add that the case of
Magobodi
,
supra
, relied upon by Ms. da Silva, is in my view, entirely
distinguishable. There the police were engaged upon a “
fishing
expedition
” with no “
probable cause
”
whatsoever to suspect the involvement of the applicant in any
criminal activity. Miller J stated at 360 F that “
the
mere asking for permission to search in those circumstances
constituted an unjustifiable invasion of privacy.
”
[74] Ms.
da Silva submitted further that in any event the statement admittedly
uttered by Smith to
the effect that why, if plaintiff had nothing to
hide, did he not allow the police to search the vehicle, was
insulting and demeaning
of plaintiff carrying with it, as it did, the
imputation that plaintiff did indeed have something to hide.
For his part Mr.
Bloem submitted that Smith’s question was
superfluous and meaningless and was not injurious in its ordinary
meaning.
Inasmuch as plaintiff had attributed a special meaning
to the words it had been incumbent upon plaintiff to allege and prove
the
circumstances in which the words were said to bear such meaning.
(
Walker v Van Wezel
1940 WLD 66
at 70). This, so Mr.
Bloem submitted, plaintiff had not done.
[75] I
disagree. It is clear, in my view, on a reading of the
particulars of claim in their
entirety, that the special meaning
attributed to the words arose, as pleaded, from “
the context
of the police’s conduct as a whole”
including the
alleged demand to search the plaintiff’s motor vehicle “
without
a search warrant nor just and lawful cause.
”
[76]
Even were I to be wrong in this finding the circumstances in which
the words came to be spoken
by Smith were exhaustively canvassed
during the course of the trial and the special meaning attributed
thereto was clearly proved.
[77]
Plaintiff was lawfully entitled to withhold his consent for the
search to be undertaken.
Once consent had been refused Smith
had two options open to him if he wished to continue with the
search. He could either
have applied for a search warrant,
leaving his two colleagues to guard the vehicle whilst he did so, or
he could have proceeded
to search the vehicle despite the absence of
consent.
[78] It
is clear, however, that he had come to the conclusion at plaintiff’s
offices not to
proceed with either option. As I have said, he
probably did so because of his realization that plaintiff was a
reputable
attorney and that his information might well be wrong.
That being so he should have left the scene. Instead, he gave
vent to his obvious frustration by uttering the gratuitously
insulting remark which, in my view, constituted a violation of
plaintiff’s
dignity. Compare
Ryan v Petrus
2010
(1) SA 169
(E).
[79] In
assessing what an appropriate award of damages would be, it must be
borne in mind that plaintiff
is a well known reputable attorney of
good standing in his community. Furthermore, not only was no
apology forthcoming from
the defendant but Smith maintained in his
evidence that he was still suspicious about the vehicle “
in
the back of my head
.”
[80] On
the other hand I must bear in mind the somewhat overheated
circumstances in which the remark
came to be made and the fact that
no-one other than plaintiff heard it.
[81]
Plaintiff’s claim as initially pleaded by senior and junior
counsel was for damages in
the sum of R500 000,00. As was
submitted by Mr. Bloem this was clearly a grossly inflated and
exorbitant amount especially
when regard is had to the matter of
Raliphaswa v Mugivhi and Others
[2008] ZASCA 17
;
2008 (4) SA 154
(SCA) where
the appellant, the sheriff of the magistrate’s court, had not
only been defamed by the police by being called
a “
tsotsi
”
had also been subjected to an “
invasive and humiliating
search
” done without probable cause. He was awarded
the amount of R25 000,00 as damages.
[82] In
my view, in all the circumstances, an appropriate award of damages
would be one of R5 000,00.
[83] Ms.
da Silva did not contend that, in the event of plaintiff succeeding
in his claim, he should
be awarded costs on the High Court scale.
I am satisfied in the exercise of my discretion that plaintiff should
be awarded
costs on the magistrate’s court scale, such costs to
include the costs of only one counsel.
The following order will issue:
Defendant is ordered to pay the
plaintiff
the amount of R5 000,00.
interest on the said amount at the
legal rate from date of judgment to date of payment,
costs of suit on the magistrate’s
court scale.
___________________
J.D.
PICKERING
JUDGE
OF THE HIGH COURT
Appearing
on behalf of Plaintiff: Adv. Da Silva
Instructed
by: Tinto Ngumle Inc
Appearing
on behalf of Defendant: Adv. Bloem S.C. with him Adv. Mpahlwa
Instructed
by: State Attorney, Mr. Ngwenya