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2012
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[2012] ZAGPPHC 9
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Modibedi and Another v Minister of Safety & Security and Others (14060/2010) [2012] ZAGPPHC 9 (13 January 2012)
NOT
REPORTABLE
IN
THE HIGH OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No: 14060/2010
DATE:13/01/2012
In
the matter between:
GOERGE
TSHEGOFATSO
MODIBEDI
........................................................
FIRST PLAINTIFF
KENNETH
TSWANE
................................................................................
SECOND PLAINTIFF
AND
THE
MINISTER OF SAFETY &
SECURITY
..............................................
FIRST DEFENDANT
CAPTAIN
HEYDENRYK
…...................................................................
SECOND
DEFENDANT
INSPECTOR MASIELA
….........................................................................
THIRD
DEFENDANT
JUDGMENT
RANCHOD
J
[1]
The Plaintiffs seek to have the defendants held jointly liable for an
alleged unlawful arrest of the plaintiffs at "Pick
n Pay Store,
Mall @ Reeds, Weirda Park, Pretoria" on 16 April 2009.. The
first defendant is sought to be held vicariously
liable as employer
of the second and third defendants, who made the arrests. It should
be noted at this early stage that the plaintiffs
sue for an alleged
unlawful arrest only - not for their detention as well. It was agreed
between the parties at the pre-trial meeting
on 20 April 2011 that
the sole issue to be determined was whether the arrest of the
plaintiffs by the second and third defendants
was lawful or not.
[2]
It was determined at the commencement of the trial that the
defendants had the duty to begin and accordingly the second and
third
defendants testified for the defence.
[3]
The defendants do not dispute - indeed it is common cause that the
plaintiffs were arrested without a warrant.
Section 40
(1) of the
Criminal Procedure Act 51 of 1977
provides as follows:
"(1)
a peace officer may without a warrant arrest any person -
(a)
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1 of the Act."
The
defendants contend that the arrest was in accordance with the
relevant section of the Act.
[4]
On 10 April 2009, being Good Friday - a public holiday - the burglar
alarm at the Pick n Pay branch at the "Mall @ Reeds"
was
triggered. On inspection thereafter it was found that R152, 000.00 in
cash was stolen from within a safe on the premises. However,
there
was no forced entry or a break-in but it was found that an emergency
exit door at the back of the premises was open. This
door could be
opened only from the inside. The plaintiffs were in possession of a
set of keys to gain access to the premises. This
was in accordance
with Pick n Pay's arrangement that two of the managers were, on a
weekly rotational basis, to open and close
the doors for business and
to allow entrance to and exit from the premises after business hours
by cleaners and by employees for
the purpose of re-stocking shelves.
The key holders were called first and second key-holders
respectively. The entrance door has
two locks. The one manager would
have the key to the one lock and the other manager the key for the
second lock. This ensured that
both managers had to be there together
to open the door. Between them they also had three keys for internal
doors leading to the
room where there is a large safe for which they
also had keys. Within the large safe was a smaller so -called "drop"
safe. The alarm was activated or deactivated by the senior of the two
of them - in this instance by the first plaintiff.
[5]
The alarm system was linked to Chubb Alarms (Chubb) which monitored
it and would contact the two individuals and certain other
managers
according to a pre-determined arrangement which it is not necessary
to elaborate upon further for purposes of this judgment.
When the
alarm was triggered on 10 April, Chubb informed the store manager, Mr
David Denyschen, who in turn informed Mr Modibedi,
the first
plaintiff.
[6]
Mr Denyschen testified that Mr Modibedi went to investigate together
with the second plaintiff and thereafter called him to
inform him
that there was a break-in at the store. He went to the premises and
found both plaintiffs there together with a guard
from Chubb. There
was no forced entry but the back door, which could only be opened
from the inside, was open. It was the emergency
exit. None of the
several doors leading to the offices and the safe (which were all
open) were broken, nor their locks. The large
safe was open as well.
The drop safe was still closed but an approximately ten centimetre
grinding mark was visible on it. Several
cashiers' money-bags had
been left inside the large safe with the cash takings that were in
them at the close of business the previous
day. That money, about one
hundred and thirty- eight thousand rands, was missing as were the
hard drives (including external hard
drives) of computers which
contained recordings from approximately forty (40) security cameras.
(It is common cause between the
parties that the amount involved is
R152 000.00 but nothing hinges on this for the purposes of this
judgment.) He further testified
that as the first and second key
holders respectively that week it was the plaintiffs' duty to ensure
that all doors were locked
and the alarm activated when the store was
closed.
[7]
Denyschen then testified about the circumstances leading to the
arrest of the plaintiffs. He said almost a week after the burglary,
on 16 April 2009, a police captain (later confirmed to be Captain.
Heydenryk, the second defendant) and the investigating officer
in the
case, Inspector Masiela, the third defendant, came to the scene and
had a consultation with him. They asked for the plaintiffs.
He called
plaintiffs to the office. The police arrested the plaintiffs, and
informed them of the reason for their arrest. He testified
further
that the police told the plaintiffs to inform their families of the
arrest. Plaintiffs were handcuffed and the police led
them on the way
out of the store when staff members of Pick n Pay prevented the
police from taking away the plaintiffs. The police
returned to the
office with the plaintiffs and took off the handcuffs. An argument
ensued for about an hour between the shop stewards
and the police
officers. The shop stewards questioned why he, Denyschen, was not
arrested as well and also about why the plaintiffs'
cell phones were
confiscated. Ultimately the officers left but they did not take
plaintiffs with them. When plaintiffs were first
led with their hands
cuffed behind their backs, they had to walk past a number of the
tills where customers were standing as well
as cashiers manning the
tills.
[8]
Under cross examination he testified that at the time of the arrest,
which was at about 16:00pm there were many customers in
the store
although he could not say how many. The store had about one hundred
and forty Pick n Pay employees, including casual
workers, of which
about one hundred were on duty that day.
[9]
Denyschen gave a written statement to the police on 16 April shortly
before the plaintiffs' arrests.
[10]
Captain Heydenryk testified that he had had a meeting with various
officials of Pick n Pay and its security managers as well
as
Denyschen on the morning of 16 April 2009. Denyschen related to him
what had happened on 10 April. That afternoon he took a
written
statement from him and thereafter decided to arrest the plaintiffs.
[11]
He gave a number of reasons why he decided to arrest the plaintiffs.
He determined that the plaintiffs were experienced managers
and of
importance to him was that they were the only key holders at the
relevant time and he had been told that the duplicate keys
were at
Pick n Pay's head office. His investigations revealed that the key
holders had to abide by a code of conduct in terms of
which they were
not permitted to allow anyone else to be in possession of the keys.
He was also informed that only the plaintiffs
could allow access to
the shop on the relevant weekend .He established that there was no
forced entry but the fire-escape door
was open. The door could be
opened only from the inside. He further established that a lock to
the door had been tampered with
in such a manner that although the
door couid be closed it was possible to simply push it open. The safe
door had also not been
forced open. He was informed that according to
Chubb the alarm activation showed that the burglary took place within
a period of
about eight minutes, that is, from 21:54 pm to 22:04 that
night.
[12]
One of the reasons he decided to arrest the plaintiffs was the fact
that they were the only ones who had the keys to the premises.
Another was the fact that the plaintiffs knew that on two days of the
year, Good Friday and Christmas Day, Pick n Pay did not open
for
business. The staff, including cleaners left the premises in the
morning of these two days after completing night shift. It
was the
plaintiffs who had attended to letting staff out last on Good Friday
morning. He was also suspicious of the fact that the
fire escape door
was open in circumstances where the seal of the door had been broken
from the inside of the premises for it to
be left open.
[13]
As part of its security measures Pick n Pay had a secret camera
monitoring the roof. Heydenryk's information was that only
managers
of Pick n Pay knew of this camera. During the burglary an attempt was
made to remove that particular camera. The attempt
failed but the
camera had stopped working. Another camera outside the shop which
monitored the fire exit door was also not in working
order on the
relevant night.
[14]
Heydenryk said he determined that it was a so-called "inside
job" .All these facts and that the plaintiffs had the
keys to
both the main entrance and the safe, made it necessary, urgent, and
reasonable to arrest the plaintiffs in terms of
s40
of the
Criminal
Procedure Act. He
said the purpose of the arrest was to question the
plaintiffs and thereafter decide whether to charge them. After
questioning them
if he was of the opinion that there was enough
evidence he wouid have the suspects taken to court.
[15]
Heydenryk and the third defendant then arrested the plaintiffs.
Heydenryk says the plaintiffs were detained from 16:14 pm to
16:24 pm
that is for ten minutes when they were released as a result of the
protest by the employees of Pick n Pay. He explained
that the arrest
of the plaintiffs took place only six days after the burglary, that
is on 16 April 2009 because that is when the
meeting with Pick n Pay
and its own security staff took place and he was informed of the
results of the lie detector tests by Pick
n Pay. He was told that the
plaintiffs had failed the lie detector tests whilst a number of other
staff members had passed it.
[16]
It was put to Heydenryk in cross examination that the plaintiffs will
say that investigating officer Masiela, was opposed to
arresting the
plaintiffs. Heydenryk denied it. Under cross examination, Masiela
also denied that he was opposed to arresting the
plaintiffs.
[17]
Under cross examination Heydenryk substantially repeated what he said
in his evidence-in-chief as to the reasons for the arrest
and the
suspicions on which it was based.
[18]
Constable Masiela substantially confirmed what Heydenryk had said as
to their suspicions which led to the arrest and detention
of the
plaintiffs. I need not repeat it here. However, he testified that
when the handcuffs were removed from the plaintiffs' hands
they were
told that they were released.
[19]
Both defence witnesses made a good impression on the court. I am of
the view that they were reliable and truthful witnesses.
There were
no material contradictions in their evidence more especially with
regard to the events leading to the arrest of the
plaintiffs.
[20]
Mr Modebedi testified that when he was arrested and handcuffed he was
told of the reason for his arrest. He was of the view
that he should
not have been arrested without the police having conducted further
investigations. He testified that at the branch
of Pick n Pay where
he was employed there were a number of people who had been key-
carriers or key-holders over the years. More
pertinently in any one
week there would be three different teams of key holders. This does
not avail the plaintiffs as the burglary
took place during the night
when they were the key-holders.
[21]
Mr Modebedi stressed that the emergency exit door could only be
opened from the inside of the shop with keys which were housed
in a
sealed container near the door. Neither of the keys the plaintiffs
had could open that door. It was the receiving manager's
duty,
accompanied by the security guard, to check that the door was
properly shut when the store was closed. The receiving manager
on
that day was one Derrick. He took issue with the fact that neither
Derrick nor the security guard was arrested. In my view,
this too was
does not avail the plaintiffs. The question is whether the arresting
officers had formed a suspicion about the plaintiffs
that was
reasonable in the circumstances. Further investigations may have been
necessary depending on the outcome of the questioning
of the
plaintiffs.
[22]
Mr Modibedi testified that after the handcuffs were removed he was
not told that he was free. It was only when he left the
store more
that an hour later that he realised he was no longer under arrest.
[23]
Under cross examination Mr Modibedi agreed that the burglary was a
so-called inside job. He also agreed that the perpetrators
had to
have inside knowledge of where the money was kept; how to get to
where the safes were; that in fact there was money there
on the night
in question and the operation and location of the cameras. He also
confirmed that all the locks of the doors and security
gates leading
to the large safe were functioning properly after the burglary and
that it was he and the second plaintiff who had
the keys to all the
relevant doors and large safe.
[24]
Mr Modibedi, crucially, conceded under cross examination, that when
the second and third defendants concluded it was an inside
job it was
not unreasonable of them to suspect the persons who had the keys to
all the relevant doors of being involved in the
burglary. He
testified further that he could not fault the police if they formed
that suspicion.
[25]
In Minister of Safety and Security v Sekhoto and Another
2011 (5) SA
367
(SCA) at [6] quoted with approval the dictum in Duncan v Minister
of Law and Order
1986 (2) SA 805
(A) at 818G-H that in order for a
section 40(1 )(b) defence to succeed, the following jurisdictional
facts must be present:
25.1
the arrestor must be a peace officer;
25.2
the arrestor must entertain a suspicion;
25.3
the suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1; and
25.4
the suspicion must rest on reasonable grounds.
[26]
Schedule 1 of the Act provides:
"Any
offence, except the offence of escaping from lawful custody ... the
punishment wherefore may be a period of imprisonment
exceeding six
months without the option of a fine."
It
is common cause or not in dispute that the theft of the R152 000.00
falls within the ambit of Schedule 1. It is aiso not in dispute
that
the second and third plaintiffs were acting in the course and scope
of their employment with the first defendant.
[27]
What is in issue is whether at the time the plaintiffs were arrested,
the second defendant entertained a reasonable suspicion
that the
plaintiffs had committed a Schedule 1 offence. Reasonableness is to
be determined objectively. The circumstances giving
rise to the
suspicion must be such as would ordinarily move a reasonable person
to form a suspicion that the suspect has committed
an offence
referred to in Schedule 1. (See R v Van Heerden
1958 (3) SA 150
(T)
at 152.) In Duncan (supra) at 465H-I it was held that a reasonable
suspicion connotes an absence of certainty and adequate
proof.
[28]
I have set out the evidence of Captain Heydenryk in some detail as it
was ultimately his decision to arrest the plaintiffs
and Constable
Masiela assisted in effecting the arrests. Given the fact that the
Plaintiffs had the keys to the premises and the
safe and other doors
at the relevant time and that no forced entry had taken place, it was
in my view not unreasonable for Heydenryk
to suspect that the
plaintiffs were involved in the commission of the offence. As I said
earlier, even the first plaintiff conceded
this under cross
examination.
[29]
It is so that even after he was satisfied that a reasonable suspicion
existed that the plaintiffs had committed a Schedule
1 offence,
Heydenryk had discretion whether or not to arrest the plaintiffs. He
explained that the element of surprise is often
important to gather
evidence hence he took possession of the plaintiffs' cellular phones
to investigate calls made to and from
them. In my view, Captain
Heydenryk acted on the facts before him and exercised his discretion
reasonably and properly.
[30]
In Sekhoto (supra) it was held at [25] by the Supreme Court of Appeal
that:
"It
could hardly be suggested that an arrest under the circumstances set
out in section 40 (1) (b) could amount to deprivation
of freedom
which is arbitrary or without just cause, in conflict with the Bili
of Rights. A lawful arrest cannot be arbitrary.
And an unlawful
arrest will not necessarily give rise an arbitrary detention. The
deprivation must, according to Canadian jurisprudence,
at least be
capricious, despotic or unjustified." (Reference to footnotes
omitted.)
[31]
In Louw and Another v Minister of Safety and Security and Others
2006
(2) SACR 178
(T) at 186a-b the learned Judge sought to introduce a
fifth jurisdictional fact and said:
"I
am of the view that the time has arrived to state as a matter of law
that, even if a crime which is listed in Schedule 1
of Act 51 of 1977
has allegedly been committed, and even if the arresting officers
believe on reasonable grounds that such a crime
has indeed been
committed, this in itself does not justify an arrest forthwith."
This
view has now been rejected in Sekhota as been an unwarranted
additional jurisdictional fact.
[32]
In all the circumstances, I am of the view that the defendants have
succeeded in discharging the onus upon them to prove on
a balance of
probabilities that the arrest without a warrant of the plaintiffs was
lawful.
[33]
The plaintiffs claim is dismissed with costs.
N.
RANCHOD
JUDGE
OF THE NORTH GAUTENG HIGH COURT
For
the Plaintiff :Mr KP Seabi (Attorney)
instructed
by :KP Seabi Attorneys,
PRETORIA
For
the Defendants :Adv. SS Maakane
Instructed
by :State Attorney,
PRETORIA