Van Alphen v Minister of Safety and Security (8245/07) [2011] ZAKZDHC 25 (31 May 2011)

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[2011] ZAKZDHC 25
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Van Alphen v Minister of Safety and Security (8245/07) [2011] ZAKZDHC 25 (31 May 2011)

IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No : 8245/07
In
the matter between :
Robert
van Alphen
….............................................................................................
Plaintiff
and
The
Minister of Safety and Security
…..............................................................
Defendant
Judgment
Lopes J
[1] In 1879 W S Gilbert and Sir Arthur
Sullivan wrote a song for their new comic opera ‘Pirates of
Penzance’ which contained
the following lines :-
‘
When
constabulary duty’s to be done, to be done,
a policeman’s lot is not a happy
one …’
[2] Not much has changed in the
interim as General Booysen, the policeman in this matter, found out.
He arrested the plaintiff on
the 19
th
April 2006 on a
charge of aiding and abetting the escape of a prisoner in custody.
After a number of court appearances, the charges
were withdrawn
against the plaintiff on the 18
th
August 2006, and the
plaintiff now sues for damages in the sum of R1 543 000.
[3] The plaintiff’s claims are
for :-
his wrongful arrest and detention;
and
the wrongful and malicious
prosecution of him on a charge of aiding and abetting the escape of
a prisoner in lawful custody.
[4] The history of the matter may be
summarised as follows :-
during 2006 the plaintiff was
employed as a sales manager by Caxton Newspapers;
working under him was Johanna
Adrianna Mostert (“Mostert”), a sales person for the
Pietermaritzburg Auto Dealer -
a motoring supplement in the
Pietermaritzburg Sun;
Mostert had been under the plaintiff
since the beginning of 2006, and had introduced her boyfriend, one
Jacques du Plessis (“du
Plessis”), to the plaintiff;
during March of 2006, du Plessis was
arrested and detained at the Pinetown Police Station on a charge of
the hijacking of a motor
vehicle;
Mostert then became involved in a
plan with two police officers from the Pinetown Police Station
namely Inspector Maxwell Khumalo
(“Inspector Khumalo”)
and Inspector Simphiwe Welcome Nthetha (“Inspector Nthetha”)
in order to assist
du Plessis to escape from custody;
to this end Mostert smuggled a gun
into the police cells and gave it to du Plessis;
an incident occurred on Sunday the
9
th
April 2006 when du Plessis held a policeman hostage.
In the ensuing events, two policemen were shot and wounded, and du
Plessis
was shot dead by a police sniper;
Mostert had been called to the police
station on the night in question, and the plaintiff went there to
assist her after the incident.
He had previously been made aware of
the escape plan by Mostert, but had allegedly not accorded it any
credibility. Part of what
Mostert had told him was that du Plessis
was in fact none other than Casper Kruger (“Kruger”),
who had been implicated
in the assassination of Samora Machel. He
had also worked for the notorious CCB. In the early 1990s, he had
been convicted of
the murder of three persons, and was subsequently
sentenced to death. He had escaped from Leeukop Prison and had been
on the
run at the time that he was arrested for the hijacking of the
motor vehicle by the Pinetown police;
the next day the plaintiff made a
statement to a member of the Pinetown police, one Inspector Bhengu,
who recorded the statement
in writing. In that statement the
plaintiff set out what he knew of the matter;
Mostert was questioned by members of
the South African Police on, inter alia, the 11
th
April
2006, and on the 15
th
April 2006 she deposed to a
statement setting out her involvement in the escape plan;
relying on the statement of Mostert,
and allegedly in complete ignorance of the fact that the plaintiff
had made a statement to
Inspector Bhengu, General Booysen arrested
the plaintiff on the 19
th
April 2006;
the plaintiff then appeared in court
on five occasions until the 18
th
August 2006 when the
charges against him were withdrawn.
[5] In answer to the plaintiff’s
claim for wrongful arrest, the defendant pleaded that General Booysen
was a peace officer
as defined in the Criminal Procedure Act, 1977
(“the Act”), and that he reasonably suspected the
plaintiff of having
committed an offence referred to in Schedule 1 of
the Act, namely conspiring or attempting to aid and abet du Plessis,
also known
as Kruger, to escape from lawful custody.
[6] With regard to the plaintiff’s
claim for wrongful and malicious prosecution, it is alleged that he
was prosecuted without
reasonable and probable cause on the charge of
aiding and abetting the escape of Kruger. The defendants have simply
denied the
allegations in the plaintiff’s particulars of claim
save for the allegation that the charges were withdrawn against the
plaintiff
on the 18
th
August 2006.
[7] The plaintiff was the only person
who testified in support of his claim. He testified that he was
employed as the sales manager
of Caxton Newspapers. He had
approximately seven reporters or photographers under his supervision.
Although Mostert was stationed
at the office of Caxton Newspapers in
Pinetown her job involved the Pietermaritzburg Auto Dealer. Mostert
started working under
the plaintiff’s guidance at the beginning
of 2006. Early in 2006 the plaintiff had been introduced to Mostert’s
fiancé,
one Jacques du Plessis. The plaintiff understood that
du Plessis worked for a sundecking company.
[8] Early in 2006 the plaintiff
received a phone call from Mostert to say a family member or friend
had been murdered in Krugersdorp,
and that she wanted to attend the
funeral. The plaintiff’s wife suggested inviting Mostert and du
Plessis over for lunch
before they went to Johannesburg on the Sunday
evening. They all had lunch together and that was the only time that
du Plessis
ever visited the home of the plaintiff. The plaintiff had
met du Plessis on previous occasions when he had come to the offices
of Caxton Newspapers to fetch Mostert.
[9] One Saturday evening in March of
2006, Mostert phoned the plaintiff and said that du Plessis had been
arrested on a charge of
hijacking, and was detained in the Pinetown
police cells. She told the plaintiff it was a lie, and that a woman
who had a personal
vendetta against her had laid a charge against du
Plessis, who was not guilty. The next day Mostert asked the plaintiff
to accompany
her to the Pinetown Magistrates’ Court to offer
her moral support, and to lend her money for bail for du Plessis.
They went
to court but du Plessis was not granted bail.
[10] Later on, and because she had no
transport having had a car accident, Mostert asked the plaintiff to
take her to Westville
Prison to visit du Plessis. He took her there
but she was unable to see du Plessis because visiting hours were
over. This was the
day after the bail hearing.
[11] A few weeks later du Plessis’s
attorney phoned the plaintiff and said that he wished to have the
plaintiff testify on
du Plessis’s behalf as to the time the
plaintiff saw du Plessis fetching Mostert from the office on the day
of the alleged
hijacking. The plaintiff went to the Pinetown
Magistrates’ Court, and met du Plessis’ attorney, who
asked him to confirm
that du Plessis had picked up Mostert after 6pm.
As the plaintiff was adamant that it had to have been before 5.15pm,
du Plessis’s
attorney told him that he would not be needed as a
witness.
[12] On Friday 7
th
April
the plaintiff, in anticipation of du Plessis having been granted bail
the day before, enquired from Mostert at work whether
she and du
Plessis had been for dinner the previous night in celebration.
Mostert replied that du Plessis did not get bail because
they could
not confirm his identity number and she told him that du Plessis did
not know his identity number or his date of birth.
Obviously
perplexed by this answer, the plaintiff asked Mostert if they were
hiding anything. Later that afternoon Mostert came
into the
plaintiff’s office, closed the door behind her and closed the
blinds so that they could not be seen by the other
members of staff
on the sales floor. She said she had serious things to discuss with
him, and asked if she could lock the office
door, which the plaintiff
refused to allow her to do.
[13] Mostert then told the plaintiff
that du Plessis was in fact a man called Kruger who was one of the
people responsible for assassinating
Samora Machel and that he had
belonged to various underground organisations including the CCB. He
had murdered three persons at
Emmerentia Dam and had been convicted
of their murder. She maintained he had been framed in this regard,
and that she had documents
to prove that fact. The plaintiff did not
believe the story related to him by Mostert. He said this was because
she had previously
told him that du Plessis had millions of rands in
a bank account which he could not access because his previous
girlfriend would
be able to track him down. He clearly viewed her as
someone with a penchant for invention and exaggeration.
[14] Mostert then told the plaintiff
that Kruger was going to escape from the Pinetown police cells with
the help of an Inspector
Maxwell Khumalo and another police officer.
Later that day when he had returned home, the plaintiff’s wife
suggested to him
that they have a braai with friends. This was to
include Quinton Ferreira (“Ferreira”) a photographer who
worked under
the supervision of the plaintiff.
[15] The plaintiff then phoned various
friends and they arrived. When Ferreira arrived he had a parcel with
him which he referred
to as ‘the pram’. He said the pram
had come from Mostert who had asked him to deliver it to the
plaintiff. The plaintiff
then telephoned Mostert and asked her what
the pram was. She laughed and said it was a bag of clothes for Kruger
for his use after
he had escaped from gaol. She asked the plaintiff
if he minded whether Kruger came to his house to pick up the bag of
clothes after
his escape. The plaintiff told her that it was
ridiculous to think that he would get involved in such a venture, and
said that
she must fetch the bag of clothes or he would return it
immediately.
[16] Mostert said that the plaintiff
should leave the bag of clothes with her children, and Ferreira
accompanied him to her apartment.
When he stopped in the parking lot
outside the apartment he told Ferreira to carry the bag of clothes up
to Mostert’s flat,
and jokingly said that he did not want his
fingerprints on the bag. He said that he had joked in this way
because he did not believe
the story to be real.
[17] As they were leaving, Mostert
pulled into the parking lot and thanked the plaintiff for being
honest by saying that he did
not wish to be involved. She then asked
if he would speak to Kruger on a cellphone which he did. Kruger
thanked him for not getting
involved. The plaintiff and Ferreira then
left.
[18] On the Sunday morning, the
plaintiff recalled a conversation on the occasion when Mostert and
Kruger had visited them, and
one of Mostert’s children had
referred to him as ‘Casper the friendly ghost’.
Connecting this with what Mostert
had subsequently told him, the
plaintiff asked Ferreira to connect his computer to the Internet. He
found a number of articles
on the Internet referring to Kruger as a
person who had sued the prison services for bad food which he had
received in the C-Max
prison.
[19] On that Sunday night after
Ferreira had gone home, the plaintiff and his wife discussed the
matter and his wife was extremely
nervous about the situation.
Shortly after 11pm Mostert phoned in tears saying that du Plessis had
killed himself and could he
go to the Pinetown Police Station to
help. Because of his wife’s concerns, the plaintiff asked
Ferreira to go with him and
fetched him at his home. Because he was
still sceptical about the version of events given to him by Mostert,
he unsuccessfully
tried to phone the Pinetown Police Station, and
then phoned Durban Central Police Station. He asked if they knew
about an incident
at the Pinetown Police Station which they
confirmed. When he and Ferreira arrived there, they went to the front
desk where a chaplain
asked him if he was Robert van Alphen. He
confirmed his identity and was taken through to see Mostert. She gave
him a hug and whispered
into his ear that he should help her get out
of the Pinetown Police Station. The chaplain told the plaintiff that
Kruger had taken
hostages, two police officers had been shot, and
Kruger had been shot by a police sniper.
[20] Realising that all he had been
told was probably true, the plaintiff said that he wanted to talk to
a senior police officer.
He was sent a young police officer and they
sat in an interview room where the plaintiff related to him what had
happened on the
Friday. It was clear to him that the police were
totally unaware that du Plessis was in fact Kruger. The policeman
asked the plaintiff
to bring in the articles he had seen on the
Internet. The plaintiff then left Mostert at the police station and
went home. The
next day he printed out as many articles as he could
find, and returned to the police station, but the police officer he
had seen
the night before was off duty. He asked to speak to a senior
superintendent. He had to translate the documents for the senior
superintendent,
because she could not speak Afrikaans which was the
language in which the articles had been written. She asked him for a
statement
and he made one to Inspector Bhengu.
[21] Later, the plaintiff was phoned
by Inspector Bhengu who asked him to arrange a work meeting in his
office with Mostert, so
that they could arrest her. The plaintiff did
this and she came to his office where the South African Police
officers were waiting
for her. They questioned her about her visits
to the Pinetown Police Station and the food which she had given to
Kruger. When questioned,
Mostert refused to give up the name of the
South African Police members who assisted her. The plaintiff told her
that she might
as well do so because he had already told the police.
She then confirmed to them the names of Inspector Khumalo and
Inspector Nthetha.
The plaintiff then left the meeting and Mostert
was arrested.
[22] On the next Wednesday, the 19
th
April 2006, the plaintiff was in his office when the group editor
phoned him and said that police officials were there to see him.
They
came to the plaintiff’s office via the sales floor and General
Booysen introduced himself. He said that they were there
to arrest
him and asked who Quinton Ferreira was. The plaintiff told them, and
he phoned Ferreira who came to his office. As he
arrived, a member of
the police pushed Ferreira up against a filing cabinet and they then
cable-tied the hands of both the plaintiff
and Ferreira behind their
backs. When the plaintiff was first told he was being arrested he had
started laughing, asking General
Booysen what he had to do with the
matter. They did not inform him of the charge initially, but said he
was involved with the Kruger
affair. He was not asked to explain
anything, and did not resist the arrest. He and Ferreira were then
taken out through the front
door of the business. They were driven to
the Serious and Violent Crimes Unit at Cato Manor where the
cable-ties were cut and they
were told to go and sit separately on
the grass outside, and that they could smoke.
[23] Whilst there, General Booysen and
Inspector Mostert (now Warrant Officer Mostert) stood talking to him,
asking him questions
about what he knew of the matter. At some stage
Warrant Officer Mostert pushed him against a police vehicle and asked
him about
the gun, of which the plaintiff denied any knowledge.
Warrant Officer Mostert said that he would hit the plaintiff’s
head
through a car window if he did not tell the truth. The plaintiff
responded by saying that he would lay charges if Warrant Officer

Mostert touched him again. Things then calmed down but the plaintiff
was asked again and again about the gun.
[24] At some stage during the
questioning General Booysen asked the plaintiff about what happened
on the Friday evening. He told
General Booysen, but omitted to
mention the fact that he and Ferreira had gone to the Spar on the way
when returning the bag of
clothes to Mostert. It became clear to the
plaintiff that Ferreira had told the police this. General Booysen
then said that he
was lying and that Warrant Officer Mostert was to
charge him.
[25] The plaintiff then asked whether
he could phone his wife. He felt humiliated and scared. Warrant
Officer Mostert then said
that they had telephoned Steve Thomas his
boss, and arranged for him to bring bail money so that the plaintiff
did not go to gaol.
They told the plaintiff that if he co-operated
they would withdraw the charges against him.
[26] They were then taken inside the
police station where they saw Inspector Khumalo and Inspector Nthetha
being questioned. Ferreira
was told to take the plaintiff’s car
back to the office. Inspectors Khumalo and Nthetha were then
handcuffed, but Warrant
Officer Mostert told Inspector Peter George
(now Warrant Officer George), the investigating officer, not to
handcuff the plaintiff
because they knew what was going on. The three
of them were then put into an Isuzu double cab and the plaintiff sat
against the
door at the back. Whilst proceeding along the freeway
Inspector George spoke to a lady, whom the plaintiff later
established was
from the Mercury newspaper, and said that she must be
at the back entrance of the court at a certain time.
[27] Because of complaints by the
other two prisoners as to why they were handcuffed and the plaintiff
was not, the Isuzu vehicle
pulled off inside the yellow line on the
freeway and the plaintiff was asked to get out, whereupon he was
handcuffed. When they
arrived at court, Inspector George indicated to
the photographers who the plaintiff was, and they ran next to the
motor vehicle.
When he alighted from the motor vehicle the plaintiff
saw the photographers running towards him and he ran into the
entrance of
the holding cells. Inspector George called him back but
he refused to return. Photographs were taken by the journalists
present
and the plaintiff was escorted to the holding cells.
[28] In the holding cells the
plaintiff spoke to Inspector Khumalo whom the plaintiff did not know
until he was told his name. Inspector
Khumalo asked him what his
involvement was and he said that he had no involvement in the matter.
They sat in the holding cells
for a few hours and were then taken up
to court for a few minutes during which time the plaintiff was
released on R2 000 bail.
He was told not to communicate with State
witnesses and to report to the police on Mondays and Fridays. His
bail had been apparently
prepaid by Steve Thomas.
[29] The plaintiff thereafter made a
number of appearances when the matter was remanded from time to time
until the 18
th
August 2006, when the charges against him
were withdrawn.
[30] The plaintiff stated that after
his initial arrest, he had attempted to set up numerous meetings with
General Booysen and Warrant
Officer George, who had told him that he
would not be charged further and that the charges would be withdrawn.
[31] On his last appearance in court
the magistrate had asked Warrant Officer George who the plaintiff
was, and he had replied that
he was under the impression that the
plaintiff knew that the gun was in the bag which Mostert had smuggled
into Kruger’s
cell. Subsequently the plaintiff spoke to General
Booysen about the statement in court, which had been made by Warrant
Officer
George, and they realised that they were two different bags,
and the charges were thereafter withdrawn.
[32] The plaintiff retained an
attorney who charged him approximately R40 000 for representing him.
He said that the arrest had
had a dramatic effect on his life. In
addition to having his photograph in the press, his name and work
were mentioned approximately
three to four times per month in the
press. His name was also mentioned on television.
[33] Attention was then drawn to a
number of press reports concerning the matter, which are contained in
Exhibit A. One report at
page 159 of Exhibit A records that :-
‘
According to
information from a source known to the Witness, Kruger obtained a
firearm from van Alphen but police are not willing
to release any
details. It is believed he smuggled it in with food that he brought
to Kruger who was in custody for a hijacking
two months ago.’
This article had been written by a
journalist, Nivashni Nair, who told the plaintiff that she could not
disclose the source of her
information, but that it was a police
officer. This demonstrated the same confusion evidenced by Warrant
Officer George when he
spoke to the magistrate at the last hearing
attended by the plaintiff.
[34] The plaintiff’s employment
also suffered. He deals with clients every week, and a number of them
questioned him as to
what had happened. Some of them did not wish to
deal with him any longer. He said that this created very bad
repercussions in his
workplace. In addition, as a result of the
allegations, his wife left him. At some stage Inspector George
subpoenaed the plaintiff
to give evidence and when he heard that the
plaintiff’s wife had left him, he offered to speak to her. The
plaintiff declined
the offer. Because of the exposure which he
received in the media, any person who searches for the plaintiff’s
name on the
Google search engine would find the media references to
him. They cannot be deleted and therefore endure. Finally, the
plaintiff
said that although his work was initially affected, matters
had soon sorted themselves out.
[35] Relevant aspects of the
cross-examination of van Alphen by counsel for the defendant were as
follows :-
the plaintiff believed at all times
that Mostert was a person prone to exaggeration, and for that reason
he did not believe her
story initially;
had he taken the effort to do so, the
plaintiff could have established that what Mostert told him was
probably true. However,
he was adamant that his view was simply one
of disbelief;
by the Friday night before the
incident in question, the plaintiff began to suspect that the escape
plan might be real. By the
Sunday night he had done the research on
the Internet and he then regarded what Mostert had said as confirmed
by the incident
at the Pinetown Police Station;
the plaintiff was of the view that
the clothing had been sent to him by Mostert because she believed he
would be sympathetic and
help them. This was because he had always
assisted her in the past. He was emphatic that he did not agree to
help her in this
instance;
Warrant Officer George asked the
plaintiff to sign a warning statement which appeared from pages 110
and following in the docket,
in Exhibit A. The plaintiff said this
statement was never read to him, nor did he have time to read it
himself;
the plaintiff was adamant that he was
subpoenaed, and went to the Pinetown Magistrates’ Court, and
was interviewed by the
public prosecutor in relation to the criminal
prosecution of the two policemen. This was emphatically denied by
counsel for the
defendant;
the plaintiff was also adamant that
he was interviewed by Warrant Officer Mostert of the Crime and
Violence Unit after his arrest,
and that Warrant Officer Mostert
told him that he was being charged in order to make sure that he
told the truth. This was also
denied by the defendant’s
counsel;
it was put to the plaintiff that both
Warrant Officer George and General Booysen would deny being mistaken
about which bag had
been handled by the plaintiff. The plaintiff was
adamant that they had in fact been mistaken and there had been a
communication
between them to this effect. Later in his
cross-examination, counsel for the defendant put to the plaintiff
that Warrant Officer
George would say that he recalls that he may
have given evidence about the bag, and thought he had been wrong, in
believing that
the plaintiff had carried the bag with the firearm;
counsel for the defendant also put to
the plaintiff that Warrant Officer George and General Booysen would
deny knowing about the
Bhengu statement. The plaintiff was adamant
that they did because he said he had mentioned it to Booysen at the
time of his arrest
in his office. Later when he had been processed
by Warrant Officer George he had repeatedly said that he had spoken
to Nico and
gone on the Monday night and spoken to the senior
superintendent. Later he had given a statement to Bhengu at the
Pinetown Police
Station. The plaintiff also said that he had told
Warrant Officer Mostert about this.
[36] The plaintiff’s case was
then closed.
[37] The defendant called three
witnesses, the first of whom was General Johan Wessel Booysen. He
testified that in 2006 he had
been a director, but was now a
brigadier general. He was in charge of all the Serious and Violent
Crimes Units in KwaZulu-Natal.
These units dealt with serious crimes
involving attacks on SAP officers and other serious crimes allocated
by the Commissioner
of Police. They had been called in on the
Pinetown incident because two officers had been shot and wounded and
Kruger had been
fatally wounded.
[38] General Booysen said that Mostert
had become a s 204 witness after a statement had been taken from her
by Captain Smith. That
statement was taken on the 15
th
April 2006 at the Cato Manor offices of the Serious and Violent
Crimes Unit. General Booysen said that he was not in possession
of,
or aware of, the minutes of the meeting of the 11
th
April
2006. These minutes appear in Exhibit A from page 93 onwards, and
record a question and answer session between Mostert and
a number of
police officers. He was also unaware of the docket which had been
opened at the Pinetown Police Station (CAS number
375/04/2006) which
contained the statement made by the plaintiff to Inspector Bhengu. He
said that he had seen it for the first
time on the day on which he
testified in this trial.
[39] General Booysen said he had
decided to arrest the plaintiff because it was clear from the
statement of Mostert that there had
been interaction between her,
Kruger and the plaintiff. He also considered as significant her
statement that the plaintiff initially
agreed to keep the bag of
clothes in his possession which were delivered to him. He felt that
the plaintiff had only later reneged
on the agreement because he had
been fearful of his wife. He had also considered the fact that
Mostert had asked the plaintiff
to use his phone, from which she had
phoned Kruger, and thereafter given the phone to the plaintiff who
had then also spoken to
Kruger. He said there was enough to
reasonably suspect that the plaintiff was assisting Kruger to escape.
[40] General Booysen denied that when
he had arrested the plaintiff at his office the plaintiff had said
that he had made a statement
to Inspector Bhengu. General Booysen
said if that had been said to him he would have been interested to
compare it with what the
plaintiff had said after he was arrested. He
said that if he had to make a decision on the evidence today he would
still arrest
the plaintiff. General Booysen conceded that although it
did not happen, ideally any information which had been taken down by
members
of the South African Police, should have been conveyed to him
for his consideration prior to making a decision as to whether or
not
to arrest the plaintiff. He regarded the statement which was made to
him, in an interview by Ferreira, as being corroborative
of the
statement of Mostert. What he regarded as significant about
Ferreira’s evidence was that :-
Mostert had said to him when she gave
him the bag of clothing that he should not ask questions about it
and that the plaintiff
knew what was in the bag;
the plaintiff had asked him what the
‘parcel’ was and he had said that the ‘parcel’
had come from Mostert,
after which the plaintiff kept quiet.
As a result of this General Booysen
formed the view that the plaintiff was not telling the truth.
[41] When asked by counsel for the
defendant what had happened at the Cato Manor offices after the
plaintiff was arrested, General
Booysen said that he could not really
recall, and simply related what he would have done. He did, however,
deny having instructed
Warrant Officer Mostert to interrogate the
plaintiff. He did not see Warrant Officer Mostert or anyone else
mistreat the plaintiff.
Nor were there any complaints made to him in
that regard.
[42] In reply to a question by the
court, General Booysen conceded that it was possible that Warrant
Officer Mostert had interviewed
the plaintiff outside the building.
He also said that Warrant Officer Mostert had been involved in the
matter because he had gone
along with him to arrest the plaintiff.
This was on the basis of his going along as “manpower”,
without actually being
part of the investigation. He was unable to
say whether or not Warrant Officer Mostert repeatedly questioned the
plaintiff about
the firearm and the plaintiff’s role in
obtaining the firearm. He simply said that that was not done in his
presence.
[43] General Booysen stated that part
of his motivation for arresting the plaintiff had been the fact that
the plaintiff had omitted
to mention the fact that he and Ferreira
had visited the Spar on their way to the Pinetown Police Station on
the night of the incident.
This had been told to General Booysen by
Ferreira.
[44] When asked by counsel for the
defendant whether the plaintiff had been processed by Warrant Officer
George, General Booysen
appeared not to be able to remember and said
that he would have told Warrant Officer George to do so. He was also
unable to remember
the process by which the plaintiff was given bail,
saying that the plaintiff’s boss had agreed to put up the bail.
[45] General Booysen was unable to
remember saying that the plaintiff should not be handcuffed when he
was driven away from the
Cato Manor offices to the Pinetown
Magistrates’ Court. He confirmed that from time to time he had
been told by Warrant Officer
George that the plaintiff wanted to see
him, and eventually the plaintiff had given a written statement to
Warrant Officer George.
General Booysen was unable to recollect
whether this statement was given a long time after the charges were
withdrawn or not.
[46] With regard to the meetings with
the plaintiff, General Booysen said there was only one such meeting.
He said bail was not
discussed, in any event, to the best of his
recollection. He did however say that had he corrected Warrant
Officer George, with
regard to the role of the plaintiff in being
associated with the bag in which the gun was smuggled into Kruger’s
cell, however,
he would not have done so in the presence of the
plaintiff and his attorney.
[47] General Booysen said that it was
true that at the initial stages the plaintiff’s attorney had
offered him as a State
witness to the police. He conceded that they
had established that the firearm originated in Gauteng and was in no
way connected
to either Ferreira or the plaintiff.
[48] General Booysen was referred to
the investigation diary entry at Exhibit A page 165 dated the 8
th
May 2006, recording a meeting at his office with the plaintiff and
Warrant Officer George. Having read the entry, which records
that the
plaintiff had arrived with two black eyes and that Warrant Officer
George had expressed the view that the plaintiff was
‘trying
his monkey tricks here and I am not interested in his proposition’,
General Booysen said that he could remember
the incident.
[49] General Booysen conceded that
there was pressure from the media to provide information about
accused persons, but said that
he would have taken a dim view of, and
launched disciplinary proceedings against, any officer who connived
with the press to allow
them to obtain information and take
photographs, etc.
[50] General Booysen was of the view
that because of :-
the Pinetown Police Station incident
when Kruger was killed;
the s 204 statement made by Mostert;
and
the interview with Ferreira;
that they had enough to arrest the
plaintiff and to present a case to the prosecution.
[51] General Booysen was then
cross-examined by Mr de Beer for the plaintiff who recorded that
Warrant Officer George had arrived
at the home of the plaintiff the
previous evening and had asked him about the whereabouts of his wife.
General Booysen said that
he knew about this because at 12 noon on
the previous day he had been told by legal services that this matter
was in the High Court.
He had had a brief discussion with the
defendant’s counsel and was told that the plaintiff claimed
damages based partly on
the fact that the arrest had compounded the
problems with his ex-wife, leading to his divorce. General Booysen
had then asked Warrant
Officer George to see if he could locate the
plaintiff’s ex-wife to confirm if that was so. Warrant Officer
George had phoned
him later that evening and said he had been to the
address where he thought he could find her and that the plaintiff and
Ferreira
had come to the gate. Warrant Officer George had then left
the premises and General Booysen told him that they would locate the

plaintiff’s ex-wife elsewhere.
[52] General Booysen said that Warrant
Officer George had gone to the plaintiff’s home because that
was the last known address
of the plaintiff’s ex-wife. It was
put to him by Mr de Beer that it was improper during the progress of
a civil case to have
the investigating officer visit the plaintiff.
General Booysen said that visiting the plaintiff might be
inappropriate but tracing
his ex-wife was not. When it was put to him
that the parties were both represented, General Booysen said that if
he had had to
ask the plaintiff where his wife was, the plaintiff
could have misled him or contacted his ex-wife. Mr de Beer placed on
record
that as a result of the visit the plaintiff had thought he
would be arrested and was traumatised by the experience.
[53] Relevant aspects of General
Booysen’s cross-examination were :-
that although he had not seen the
statement made to Inspector Bhengu, had he done so it would have
made no difference to his decision
to arrest the plaintiff;
General Booysen could not dispute or
confirm that the plaintiff had gone to the Pinetown Police Station
to give a statement which
was made to Inspector Bhengu voluntarily;
General Booysen conceded that at the
time of the incident the South African Police were unaware that du
Plessis was in fact Kruger,
and accepted that the plaintiff had
exposed the true identity of du Plessis. He added that that is
exactly what he would have
done had he been in the shoes of the
plaintiff because it was something which would have come out anyway.
He characterised it
as an attempt by the plaintiff to cover his own
tracks. It was put to him that it was stated in the statement made
to Inspector
Bhengu that the plaintiff had returned the bag of
clothing and that that was not the action of someone who was aiding
and abetting
Kruger. General Booysen conceded that that would be the
case if the statement were true. He disputed that the return of the
clothes
was an act of dissociation;
it was clear from his
cross-examination that General Booysen regarded the plaintiff’s
actions as being those of a person
who was pre-empting a case
against himself. He said he appreciated the fact that Mostert was an
accomplice and that her evidence
should have been approached with
caution;
General Booysen placed reliance on
the fact that, according to Mostert, the plaintiff had agreed to
‘help’ Kruger.
He appeared to have understood the
reference to ‘help’ in the statement as meaning ‘help
to escape’.
This was despite the fact that Mostert said the
plaintiff gave this undertaking after he refused to help in the
escape plan;
when it was put to General Booysen
that Ferreira had fetched the clothing from Mostert, and that this
was a factor inconsistent
with the plaintiff’s involvement,
General Booysen stated that it appeared to him that Ferreira was
also involved;
General Booysen said that any
surprise exhibited by the plaintiff when he was arrested was a
surprise at having been found out
and not disbelief at being
arrested;
when it was put to General Booysen
that he had been accompanied by Warrant Officer Mostert when he
arrested the plaintiff he then
stated that he was not sure if
Warrant Officer Mostert was there at the time of the arrest,
although Captain van Tonder was;
General Booysen could offer no real
explanation as to why he never confronted the plaintiff with the
allegations at the Cato Manor
Police Station. He firstly said it was
not a conducive place to interview a witness, and later said that he
could not do so in
his office because Ferreira was there. However,
he had already made the decision at that stage to arrest the
plaintiff, and had
done so;
in reply to why he had arrested the
plaintiff, General Booysen said he had done it in order to get him
before a court, and to
interview and interrogate him. He said it had
been necessary to arrest him because the plaintiff worked with
Ferreira, and they
could have had time to concoct a story;
General Booysen was of the view that
the plaintiff did not mention the incident about visiting Spar on
the way to the Pinetown
Police Station because he wanted to distance
himself from discussions about the bag of clothes. He found it
significant that
he had kept quiet when Ferreira told him about the
bag.
[54] In re-examination he emphasised
that any impression that the docket would be revived for a final
decision to be made by the
public prosecutor, in relation to the
continued prosecution of the plaintiff, should be dispelled. General
Booysen expressed the
view that the public prosecutor still had to
make a decision about the continued prosecution against the two
members of the South
African Police.
[55] A significant aspect of this part
of the evidence was that General Booysen gave the impression that at
first he thought that
the prosecution of the plaintiff should be
re-considered by the National Director of Public Prosecutions. When
it became clear
that that might be viewed as an oppressive step in
this litigation, he backed down completely, and then said that there
was no
intention of continuing the prosecution against the plaintiff.
[56] The next witness for the State
was Warrant Officer George who had been an inspector at the time of
the incident. He had been
in the police services for 25 years and was
attached to the Serious and Violent Crimes Unit.
[57] Warrant Officer George testified
that he had processed the plaintiff and was not at any stage told
about the docket and the
statement which had been made to Inspector
Bhengu. He said that Inspector Bhengu had used the contents of the
docket he had opened
at the Pinetown Police Station, as information
for the inquest docket.
[58] In contradiction to the evidence
which had been given by the plaintiff, he said that the plaintiff’s
fingerprints must
have been taken. He appeared to have no
recollection of having done so or having instructed anyone to do so.
[59] With regard to the statement made
by the plaintiff and the signed documents appearing at Exhibit A
pages 110 to 114, Warrant
Officer George maintained that he had
informed the plaintiff about his constitutional rights and that the
plaintiff had signed
the document. He conceded that he had got the
impression that the plaintiff wanted to assist the police.
[60] When asked whether Steve Thomas,
the plaintiff’s boss, had contacted him regarding the bail, he
simply recalled that
some white gentleman who had an interest in the
plaintiff, had contacted him. He denied having handcuffed the
plaintiff on the
way to the Pinetown Magistrates’ Court or
having spoken to any journalists in the car, or having pointed out
the plaintiff
to journalists, all of which had been testified to by
the plaintiff. Warrant Officer George however, conceded that people
were
anxious about the case and that it had generated public
interest.
[61] Warrant Officer George thought
that at some stage there had been a meeting with General Booysen and
the plaintiff’s attorney.
Although he had made the
investigation diary entry at Exhibit A page 161, (recalling that the
plaintiff’s attorney had proffered
to the police a statement by
the plaintiff), he could not recall seeing a copy of any statement on
the 23
rd
April 2006, the day of that entry.
[62] Warrant Officer George conceded
that at a bail hearing he had told the magistrate that the plaintiff
had been involved with
the bag in which the gun had been smuggled. He
said that was an error on his part, and he had not realised that
there was another
bag. He could not recall whether he ever pursued
that avenue. He could also not recall having spoken to General
Booysen about it,
or that General Booysen phoned him and corrected
him. He said that he did realise that there had been a
misunderstanding. In reply
to a question from the court, Warrant
Officer George conceded that he had thought all along that the
plaintiff had had something
to do with the bag which contained the
firearm.
[63] Warrant Officer George said that
during the internal investigation into the conduct of the two police
members, Mostert had
given evidence, but that the transcripts of that
hearing had been lost. The trial against the two police officers had
been stopped
because the transcripts were not available and the
dockets had to be re-submitted to the senior public prosecutor, after
the transcripts
were found. They were eventually located and given to
the senior public prosecutor where the docket had remained for a
considerable
length of time.
[64] It was put to Warrant Officer
George that he had approached the plaintiff and said he wanted to
subpoena him. Warrant Officer
George said that he could not remember
having issued the plaintiff with a subpoena. He said if there was a
subpoena issued, the
original would have been given to the plaintiff,
and a copy of it would have been stored in the police docket and
should be there.
It was then put to him that there was no record of
any subpoena in both the police dockets. Warrant Officer George said
that there
would have been a record in the investigation diaries
referring to the subpoena had it been issued. It would have referred
to either
a J32 or subpoena in respect of the plaintiff.
[65] Warrant Officer George denied
having offered to phone the plaintiff’s wife and tell her that
he was innocent, and he
said he never expressed an opinion of the
plaintiff’s innocence.
[66] Warrant Officer George was
referred to Exhibit A pages 110 to 114, the warning statement signed
by the plaintiff at Warrant
Officer George’s insistence. He
claimed that he had read it out aloud to the plaintiff and that the
plaintiff had then read
through it. He said that the documents had
been generated by a computer.
[67] It was put to him by the court
that the original documents must have appeared the same way the
documents appearing in Exhibit
A appear – i.e. - to a large
extent indecipherable. This is clearly because they are documents
which were photostatted and
there was a problem with the photostat
machine. That can clearly be seen on all of the pages. What is
significant is that the handwriting
of Warrant Officer George and the
plaintiff’s statement taken down by Warrant Officer George
appear clearly from the documents
in Exhibit A. Clearly, the original
documents were indecipherable. Warrant Officer George conceded that
the original documents
must have been like that, but maintained that
because he knew the documents he had been able to read them to the
plaintiff. This,
of course, in no way deals with his evidence that
the plaintiff had read them. The original documents were produced by
counsel
for the defendant and it was seen that the originals were as
illegible as were the copies in Exhibit A pages 110 to 114.
[68] Warrant Officer George testified
that the plaintiff had appeared in court on five occasions, the 2
nd
May 2006, the 17
th
May 2006, the 30
th
June
2006, the 6
th
October 2006 and the 18
th
October
2006 when the charges against him were withdrawn. In reply to
questions by the court, Warrant Officer George conceded that
it was
unfair to have asked the plaintiff to sign documents such as those at
Exhibit A pages 110 to 114, and to rely on them. Warrant
Officer
George referred in the original docket to a notation made by General
Booysen, after he had finished giving evidence, that
no steps
whatsoever were to be taken in the future against the plaintiff. This
was in the context of the docket being returned
to the senior public
prosecutor for decision.
[69] Warrant Officer George then
conceded that in fact a subpoena had been served on the plaintiff and
that he had signed the mode
of service.
[70] Mr de Beer then cross-examined
Warrant Officer George and significant aspects thereof are :-
Warrant Officer George said that he
knew that the plaintiff and his wife were no longer together, but
had gone to his house during
the trial because he did not know that
she was no longer resident there. He eventually contacted her and
spoke to her telephonically
the next day. It was put to him by Mr de
Beer that he had said to the plaintiff’s ex-wife that the
police knew that she
had been in communication with the plaintiff
because they had tapped his cellphone. He denied this;
despite what had gone before, Warrant
Officer George reiterated that he had read the statement at Exhibit
A pages 110 to 114 to
the plaintiff line by line, and that it had
taken between eight and ten minutes. He said that he would still
have read the plaintiff’s
rights to him despite the fact that
the plaintiff had said in his statement that he would not make a
statement then but would
only make one later. Warrant Officer George
denied that the purpose of the arrest had been to get the plaintiff
to make a statement;
Warrant Officer George said that he
had made the statement at Exhibit A page 165 that the plaintiff was
‘up to his monkey
tricks’ and that the prosecution could
continue, because he had got the impression that the plaintiff was
delaying things.
He had formed that impression because the plaintiff
had not yet made a statement;
with regard to the taking of the
plaintiff’s fingerprints, Warrant Officer George was adamant
that his fingerprints should
have been taken although he had no
recollection of having done so. He said that he was unable to locate
any record of the plaintiff’s
fingerprints and denied that
there could have been a mistake and the plaintiff’s
fingerprints may not have been taken;
Warrant Officer George denied that
the plaintiff had not been handcuffed when they left the Cato Manor
office to go to the Pinetown
Magistrates’ Court. He disputed
that he had stopped on the way to handcuff the plaintiff because of
complaints made by
the other two accused;
Warrant Officer George conceded that
he had used his cellphone on the way to the Pinetown Magistrates’
Court but it had
not been to any reporters. He denied having said to
anybody that they should meet them at the back entrance of the
Court. He
was unable to comment how it could be that the press were
waiting for their vehicle when it arrived at the Pinetown
Magistrates’
Court. He simply said that the press must have
done some research somewhere. He conceded that this was a high
profile case and
that a photograph of him together with the accused
appeared in the media (Exhibit A page 256);
Warrant Officer George conceded that
there was a misunderstanding about whether or not the plaintiff had
been involved in the
smuggling of the firearm into the cell of
Kruger;
Warrant Officer George was unable to
say how the confusion regarding the two bags was resolved.
[71] The last witness for the defence
was Warrant Officer Paul Mostert who testified that he had been
employed in the South African
Police Services for 33 years and had
been attached to the Serious and Violent Crimes Unit at Cato Manor
for 14 years. He said that
he had made the statement which appeared
at Exhibit A pages 123 to 124. In that statement he recorded that he
had been present
at the arrest of Inspector Khumalo. He arrested the
other police member Inspector Nthetha, and then took him to the Cato
Manor
Police Station, where he handed him over to Warrant Officer
George.
[72] Warrant Officer Mostert denied
emphatically that he had accompanied General Booysen to arrest the
plaintiff and Ferreira at
their workplace. He said that he had gone
directly to Newlands East to arrest Inspector Nthetha some time after
10.10am, and had
not been with General Booysen and the others at
approximately 11am, when they had arrested the plaintiff. He had no
idea where
the Highway Mail offices were.
[73] Warrant Officer Mostert said that
on arrival back at the Cato Manor office he noticed that General
Booysen and other members
were already there. He said that the
plaintiff before court was standing at the side of the building. He
had handed over the person
he had arrested to Warrant Officer George.
He had had no access to the docket and no reason to interview the
plaintiff. He had
no knowledge of the fact that the plaintiff had
been allowed to stand outside at the Cato Manor office and smoke.
[74] Warrant Officer Mostert said that
he had no recollection of the plaintiff’s allegation that he
had repeatedly asked the
plaintiff about the gun. He then said that
that did not happen. He denied having discussed the merits of the
case with the plaintiff
at any stage. He also denied having pushed
the plaintiff against a car and having threatened to push his head
through the window
of a car. He also denied having told Warrant
Officer George that he should not handcuff the plaintiff. He said
that he had no other
role in the case.
[75] In cross-examination Mr de Beer
for the plaintiff drew attention to the size of Warrant Officer
Mostert who was 1,98m tall,
and weighed 130 kilograms. He denied that
he had accompanied General Booysen to provide a physical presence at
the arrest of Ferreira
and the plaintiff. He said that he had seen
the plaintiff standing in the area between the two offices at Cato
Manor and he had
been standing on the grass near the braai area. He
said that the plaintiff was just standing there and he could not
recall whether
he was handcuffed. When further asked why he could
recollect this incident after five years he said it had been his
birthday, the
plaintiff’s hair was whiter than it is now, and
that the plaintiff had had a pink shirt on.
[76] The defendant then closed its
case.
[77] Dealing with the credibility of
the various witnesses and the probabilities, I deal firstly with the
plaintiff. The arrest
of the plaintiff was something which had
clearly rankled with him, and which he deeply resented. It was clear
from his demeanour
when giving evidence that he had been hugely
embarrassed by his arrest and appearances in court. It is also clear
that because
of the effect which the prosecution had had on him, the
plaintiff would have had every reason clearly to recollect all the
events
which occurred. Being arrested and having to appear in court
on a charge of a serious crime is a rare event in the lives of most

people. This gave the plaintiff every reason to remember in detail
all the things that happened to him.
[78] The plaintiff came across as an
honest witness. He gave his evidence in a forthright, and sometimes
indignant, manner. His
indignation stemmed from the attitude of the
police and their failure properly to investigate his involvement
prior to, and after,
his arrest. The plaintiff also made concessions
in his evidence where it appeared to be reasonable to do so.
[79] In particular the plaintiff’s
evidence with regard to the fact that he did not initially believe
what he was told by
Mostert has the ring of truth about it. Anyone
who relates tales of someone who was involved in the murder of Samora
Machel, involvement
in the CCB and the murder of three people in
Gauteng, as well as an elaborate prison escape using the assistance
of police officials,
can only be expected to encounter a great deal
of scepticism.
[80] It is true that by the Friday
before the incident, when the bag of clothes were delivered to the
home of the plaintiff, he
should have suspected that far more was
afoot than he had initially believed. Certainly, by late Sunday
afternoon, after he had
investigated the matter on the Internet, he
realised that there was more to the story of Mostert than he
believed. At that stage
he discussed the matter with his wife who was
clearly concerned with the possible ramifications of the plaintiff
having anything
to do with Mostert.
[81] It was significant that the
plaintiff was tackled in cross-examination with two aspects in
particular :-
that a subpoena had been issued
requiring him to be a witness. It was put to him by counsel for the
defendant that no subpoena
existed in the court files. This of
course turned out not to be the case as the subpoenas were later
found and Warrant Officer
George testified that he had in fact been
responsible for issuing them;
that the fingerprints of the
plaintiff had not been taken by the police. Warrant Officer George
was adamant that they must have
been, and therefore were, taken.
However the defendant was unable to produce any evidence, which
Warrant Officer George said
must exist, that the plaintiff’s
fingerprints were taken.
[82] Although these aspects are not
significant in the greater scheme of the case, they point to the fact
that the plaintiff’s
recollection of matters was accurate and
that his persistence in sticking to his story in cross-examination
was justified, at least
to the extent of these issues.
[83] The evidence which the plaintiff
gave of his arrest and subsequent treatment at the Cato Manor Serious
and Violent Crimes Unit
also has the ring of truth about it. There
was certainly nothing inherently improbable in what he said and
looking at his version
on its own and in the light of the
cross-examination to which he was subjected, there would appear to
me, to be no basis not to
accept the basic content of his evidence.
[84] The defence witnesses on the
other hand, stand on a different footing. It was clear from the
evidence of General Booysen that
:-
he only became aware that the trial
was proceeding on the second day of the trial at approximately 12
noon;
in the preceding five years since the
incidents had occurred he had not had occasion to be involved in the
matter, and had not
applied his mind to the matter whatsoever. This
was clearly demonstrated in the fact that the prosecution against
the two policemen
had not been proceeded with by the State. This was
a matter which he clearly found unacceptable, as evidenced by his
referral,
at the end of the trial, of the docket to the senior
public prosecutor for re-evaluation; and
that he had not paid any attention to
the matter in the intervening period was also evident from the fact
that the matter had
laid with the senior public prosecutor for a
considerable period of time, probably more than a couple of years,
and nothing had
been done.
[85] General Booysen, and this applies
to the other State witnesses as well, clearly therefore did not have
the same motivation
as the plaintiff for remembering the events which
unfolded. This was clearly evidenced by the failure of General
Booysen to recollect
many of the events which took place. I do not
make this observation as a criticism of his credibility. Given the
amount of work
which he would have inevitably have done in the
interim, together which his very narrow involvement in the arrest of
the plaintiff
and the subsequent events, he clearly would not have
had as much reason as the plaintiff to recall the events which
occurred.
[86] The essential areas where the
evidence of General Booysen was in conflict with that of the
plaintiff were :-
the circumstances of the arrest of
the plaintiff at the offices of Caxton Newspapers trading as the
Highway Mail. The plaintiff’s
version is that his response to
his arrest was one of disbelief as he regarded himself as a witness.
General Booysen did not
have an independent recollection of what the
plaintiff said, and most of his evidence appears to have been based
on his re-construction
of events based on the documents which were
given to him, when he was told that the matter was proceeding;
that General Booysen was told by the
plaintiff that he had made a statement to Inspector Bhengu at the
Pinetown Police Station.
Once again General Booysen did not have an
independent recollection of this. He did say he thought that
unlikely, because if
the plaintiff had told him that he had made a
previous statement, he would have wanted to compare that statement
with what he
was saying at the time of his arrest. It may well be
that there was some misunderstanding in this regard and it is
entirely possible
that the plaintiff communicated to both General
Booysen and Warrant Officer George that he had made a statement to
Inspector
Bhengu, but they believed that that statement had only
been a verbal one. It does seem unlikely that General Booysen would
have
ignored a written statement if he had known that it existed.
The fact that he did not know it existed seems most likely to have

been due to a misunderstanding in the communications between the
plaintiff and the police officials at the time of his arrest.
It
seems to me that it would have been a natural and probable thing
that the plaintiff told General Booysen of the statement
he made to
Inspector Bhengu.
the plaintiff’s evidence with
regard to the involvement of Warrant Officer Mostert was not
something which was contradicted
in any material way by General
Booysen, because he was, on his own version, not present at the
times when the plaintiff alleged
his exchanges with Warrant Officer
Mostert took place;
the plaintiff’s evidence also
conflicted with General Booysen in relation to the meeting which
took place between the plaintiff
and General Booysen, at which the
plaintiff complained about the fact that Warrant Officer George had
alleged at the bail hearing
that the plaintiff had been involved in
the smuggling of the firearm into the cell of Kruger. General
Booysen had only a vague
recollection of the events of that meeting,
contenting himself with the explanation that he would not have
corrected Warrant
Officer George’s impression in front of the
plaintiff and his attorney. That may well be his attitude now, but
the events
in this matter took place five years ago and General
Booysen’s inability clearly to remember what occurred at a
particular
meeting, well after the arrest of the plaintiff, is
perhaps not surprising;
General Booysen interpreted the
statement made by Mostert to include a suggestion that the plaintiff
would have assisted Kruger
with his arrest after clearly having told
Mostert he would have nothing further to do with it. This is not a
reasonable interpretation
of the statement of Mostert.
[87] Whilst accepting the credibility
of General Booysen as a witness, there is an aspect of his evidence
which calls for comment.
He came into this matter at approximately 12
noon on the second day of the trial after not having had contact with
the matter for
a number of years. He clearly formed the view, which
he expressed in his evidence, that he still held the belief that the
plaintiff
had committed a crime and should have been arrested.
Indeed, I gained the clear impression from his evidence that he
initially
thought the matter should be referred back to the public
prosecutor for a final decision on the plaintiff’s involvement.
It was only when it was pointed out that such a step would result in
inherent prejudice to the plaintiff after such a long time,
and would
appear to be an intimidatory tactic during the running of the civil
trial, that he backed down and said that the State
would no longer
proceed against the plaintiff. This was confirmed by the entry which
he made in the investigation diary of the
docket after the conclusion
of his evidence.
[88] The evidence of Warrant Officer
George suffers from some of the same problems as General Booysen.
Warrant Officer George was
clearly of the view that the plaintiff had
participated in the smuggling of the firearm into the cell of Kruger,
and this view
persisted for a considerable period of time after the
arrest of the plaintiff. It no doubt clouded his thinking as the
investigating
officer in the ongoing conduct of the State in this
matter. The origin of his confusion appears to have been an
interpretation
of the initial statement, made in Afrikaans by
Mostert, which Warrant Officer George either incorrectly interpreted
or had been
misinterpreted to him. With regard to the issue of the
subpoena to the plaintiff, and the matter of the plaintiff’s
fingerprints,
for the reasons I have set out above, I prefer the
evidence of the plaintiff.
[89] The evidence of Warrant Officer
George also conflicted with that of the plaintiff with regard to the
taking of the statement
which appeared in Exhibit A from pages 110 to
114. The plaintiff’s version was that the documents had been
written out by
Warrant Officer George and that he had been asked to
sign them, without having had the documents read to him, or having
had a chance
to read them himself. Warrant Officer George testified
that he had read the documents to the plaintiff and that the
plaintiff had
had a chance to read them himself before signing them.
However, when Warrant Officer George first gave his evidence he
clearly
did not appreciate the significance of the gaps which appear
on the documents which were contained in the court bundle. It was
clear from the writing which was superimposed on the documents that
the original documents had been as indecipherable as the court
copies
were. Although Warrant Officer George may have known the contents of
the documents very well, as he said he did, I find
it most unlikely
that he would have read the documents out to the plaintiff in the
state they were. I find it most improbable in
the extreme that the
plaintiff would have read them or would even have tried to do so.
There is no indication that the plaintiff
would have had a previous
familiarity with the documents, and the illegibility of large
portions of the originally printed documents
was such that he would
not have been able to work out what was stated on them. On balance
therefore I would prefer the evidence
of the plaintiff in this
regard.
[90] Indeed it is a sad indictment of
the administrative functions of the police that documents such as
these were used in an official
capacity and relied upon by police
officials in their investigations. Warrant Officer George himself
conceded that it was appalling
that anyone should be asked to sign
documents in the condition that one finds Exhibit A pages 110 to 114.
[91] I am mindful of the fact that
Warrant Officer George only came into the matter as the investigating
officer after the arrest
of the plaintiff, and therefore his evidence
is not material to the initial arrest of the plaintiff, but rather to
his treatment
thereafter.
[92] Of all the witnesses for the
State, and on his own evidence, Warrant Officer Mostert had the least
reason to remember the circumstances
of the plaintiff’s arrest
and his involvement therein. He flatly denied having been to the
plaintiff’s business premises
at the time he was arrested. This
evidence is contradicted by the plaintiff and by General Booysen who
said that he had taken Warrant
Officer Mostert along with him for
‘manpower’. Warrant Officer Mostert was also responsible
for the arrest of at least
one of the two policemen who were arrested
for complicity in the attempted escape of Kruger. Whilst I accept
that the statement
made by Warrant Officer Mostert as to where he was
on the morning when the plaintiff was arrested, this may to some
extent be seen
as a contradiction to the evidence of the plaintiff
and General Booysen, but this matter was not fully explored at the
trial. The
various possible explanations as to the apparent
contradiction were not investigated. In all the circumstances I would
prefer the
evidence of the plaintiff and General Booysen above that
of Warrant Officer Mostert.
[93] Warrant Officer Mostert also
denied having treated the plaintiff roughly at the Cato Manor offices
of the Serious and Violent
Crimes Unit. He denied having continuously
interrogated the plaintiff about the gun. Given the general confusion
which appears
to have reigned in this regard (except perhaps in the
mind of General Booysen) the plaintiff’s evidence has the ring
of truth
about it.
[94] In my view Warrant Officer
Mostert’s evidence was substantially undermined by the reason
he gave for remembering the
plaintiff before court as the person whom
he had seen at Cato Manor offices. The evidence was that he had had
nothing whatsoever
to do with the plaintiff, and had merely seen him
standing there as he had passed by with the other accused. His reason
for remembering
the plaintiff was allegedly that the plaintiff was
simply standing there, the date on which it happened was the
witness’s
birthday, the plaintiff’s hair was whiter than
it is now, and he had a pink shirt on. This evidence given by Warrant
Officer
Mostert clearly appeared to be an afterthought. I do not
accept it. Warrant Officer Mostert purports to have recollected
seeing
a man he saw for no more than a few seconds five years
previously, simply because it was his birthday! I regard this as
grossly
improbable. Given the number of accused persons with whom
Warrant Officer Mostert must have been involved in the intervening
five
years, there seems no reason whatsoever for him to have recalled
the plaintiff in such detail when he was not an accused with whom

Warrant Officer Mostert, on his own version, was involved.
[95] In all the circumstances I have
no hesitation in preferring the evidence of the plaintiff above that
of Warrant Officer Mostert.
[96] In assessing the evidence of
General Booysen in this matter there is an important consideration
which I have borne in mind.
He relies in large measure on the
statements taken by the police from the witness Mostert. It is clear
that she was not only an
active participant in the bid to assist
Kruger to escape, but she also did not tell the police the whole
truth from the outset.
This is evident from a perusal of the minutes
of the meeting which was held on the 11
th
April 2006,
which appear from pages 93 to 108 of Exhibit A, and the more
comprehensive and revealing statement which she made on
the 15
th
April 2006. That evidence is all in the nature of hearsay evidence.
If the defendant wanted to rely on the evidence of Mostert,
they
should have called her as a witness. This is not only because the
defendant wishes to rely upon contradictions between what
was stated
by Mostert and the version of the plaintiff, but also because of the
general problems which surround statements taken
by police officials.
[97] It is notorious that these
statements are written by police officials in a style which police
officers are trained to record
statements. They record what is stated
by a witness in response to prompts or questions by the police
official concerned. This
makes accepting the veracity of everything
that is stated in those documents difficult. In addition, Mostert was
a s 204 witness
and clearly had a motive to involve others, if for no
reason other than to dilute her own involvement in the matter.
[98] In order to establish his claim
for wrongful arrest, the arrest or detention of the plaintiff is
regarded in our law as
prima facie
wrongful, and the defendant
bears the onus of proving the lawfulness of his arrest. The plaintiff
need only establish that he was
arrested and detained. That much is
common cause in this matter. What is in dispute is whether General
Booysen’s arrest fell
within the ambit of sub-s 40(1)(b) of the
Act, 1977 which provides :-
‘
(1)(a) A
peace officer may without warrant arrest any person –
…
whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than
the offence of escaping from
lawful custody;”
[99] Schedule 1 to the Act includes :-
‘
any
conspiracy, incitement or attempt to commit any offence referred to
in this Schedule.’
Included in the Schedule is :-
‘
escaping
from lawful custody, where the person concerned is in such custody in
respect of any offence referred to in this Schedule…’
The offences listed in Schedule 1
include robbery and theft. The conduct of Kruger clearly fell within
either or both those offences
and accordingly any conspiracy,
incitement or attempt to assist him in escaping would fall within the
ambit of Schedule 1.
[100] In order to determine whether or
not the arrest was justifiable, it is necessary for the defendant to
establish :-
(a) that the arrestor was a police
officer;
(b) that the arrestor entertained a
suspicion;
(c) that the suspicion must be that
the arrestor committed an offence referred to in Schedule 1; and
(d) that the suspicion must rest on
reasonable grounds.
See
Minister of Safety and Security
v Sekhoto
1022(1) SACR 315 (SCA) paras 5 – 7
(neutral citation (131/10) [2010] All
ZASCA 1 141 1 (19 November 2010) paras 5 – 7).
[101] It is common cause, as indeed
was confirmed by the evidence, that General Booysen was the arresting
officer, that he was a
police officer who entertained a suspicion
that the plaintiff had committed an offence referred to in Schedule 1
of the Act. It
was the reasonableness of that decision that was in
dispute. In assessing the conduct of General Booysen, I am aware of
the difference
between the jurisdictional facts which are required to
be established and the discretion which General Booysen was entitled
to
exercise once the jurisdictional requirements were satisfied.
[102] In the light of all this
evidence and my views on the witnesses, it is now necessary for me to
decide whether or not the conduct
of General Booysen in arresting the
plaintiff was reasonable in the circumstances. I do this on the
assumption that the offence
with which the plaintiff was charged was
one falling within the first Schedule to the Act. This was accepted
by counsel for both
parties, and the basis upon which the plaintiff
argued its case.
[103] General Booysen’s evidence
was that he relied solely upon the statement of Mostert in arresting
the plaintiff. He did
not have access to either the minutes of the
meeting of the 11
th
April 2006, nor the statement which
the plaintiff made to Inspector Bhengu at the Pinetown Police Station
the day following the
incident.
[104] In interpreting the statement of
Mostert, General Booysen relied upon the following :-
that Mostert had sent a parcel of
clothing to the plaintiff’s home. This is a circumstance
which, in my view, is not indicative
of the involvement of the
plaintiff. I say this because it is clear from the evidence of the
plaintiff that he was of great assistance
to Mostert during her
employment under his supervision. His uncontradicted evidence was
that he had assisted her on a number
of occasions and she clearly
looked to him both as a friend and superior who would assist her.
This is further evidenced by :-
(i) her requests to him to assist in
loaning her the necessary money for the release of Kruger on bail
(and in this regard it should
be remembered that she was a fiancée
of Kruger;
(ii) the taking of her to the
Westville Prison to visit Kruger when her car was unavailable;
(iii) the fact that his wife had been
compassionate towards her when a relative had been shot dead and had
been instrumental in
inviting her to lunch, etc.
It is equally possible that Mostert
simply assumed that the plaintiff would be sympathetic towards her,
and would help her;
General Booysen also relied on the
fact that Ferreira had told him that when he had told the plaintiff
about the bag of clothes,
the plaintiff had not known what was in
it. When Ferreira had told the plaintiff, in reply to the
plaintiff’s enquiry that
the bag of clothes had come from
Mostert, the plaintiff had kept quiet. General Booysen clearly
regarded this as a significant
indicator of the fact that the
plaintiff knew what was in the bag of clothes and had made a
pre-arrangement with Mostert to assist
in the escape of Kruger. In
my view this was also not a reasonable assumption. I say this
because reliance was placed on a statement
made by Ferreira who did
not give evidence at the trial. A written statement taken by General
Booysen in Afrikaans and recorded
in English, was placed before the
court. The silence of the plaintiff should not reasonably have been
interpreted as an indication
of guilt in the circumstances. I
appreciate in this regard that the members of the South African
Police are not obliged to interrogate
an accused person prior to
arresting him provided that they have a reasonable belief that he
should be arrested for a Schedule
1 offence. That the plaintiff’s
failure to further interrogate Ferreira on the contents of the bag
was probably innocent,
is reinforced by his own evidence that he
telephoned Mostert immediately to discuss the matter with her. I do
not believe that
it is reasonable to infer from his silence that he
had guilty knowledge of the escape, in the sense that he had
previously agreed
to participate in it;
General Booysen also relied upon the
fact that Ferreira had told him that he and the plaintiff had gone
to the Spar on the way
to return the bag of clothes to Mostert, and
the plaintiff had not referred to this. General Booysen clearly
interpreted this
as the plaintiff being untruthful. The plaintiff’s
version was that he had simply forgotten about that part of what
they
had done and in any event regarded it as insignificant, because
they had simply gone to Spar to pick up supplies on the way to
the
home of Mostert. General Booysen said that he viewed this as an
attempt by the plaintiff to distance himself from the conversation

regarding the bag. In my view this was not a reasonable
interpretation of the plaintiff’s conduct because the reason

for going to the Spar was not disputed, nor was it disputed that the
Spar was on the way to the home of Mostert. There would seem
to be
no point in distancing himself from the conversation about the bag
when on his own evidence he had spoken to Ferreira about
the bag
when Ferreira told him it had come from Mostert;
combining these factors with what had
happened at the Pinetown Police Station on the Sunday night, General
Booysen formed the
view that Mostert was telling the truth and,
despite the fact that she was a s 204 witness, decided to arrest the
plaintiff.
[105] In my view, and for the reasons
set forth above it was not reasonable in the circumstances for
General Booysen to have arrested
the plaintiff. It did not follow
that simply because of what had taken place on the Sunday night, read
together with the suggestions
of Mostert and Ferreira as contained in
their statements, that the plaintiff was previously involved with
Mostert and had agreed
to the plan.
[106] Indeed, in Mostert’s own
statement she states that the plaintiff had sought to distance
himself from the plot and had
returned the bag of clothes to her, a
factor which was confirmed by Ferreira, who himself took the bag of
clothes into Mostert’s
flat. That is hardly consistent with the
plaintiff having actively agreed to participate in the planned escape
of Kruger. Indeed
it flies in the face of any suggestion that he had
previously agreed to take part. The fact that Mostert may have
believed that
the plaintiff would assist her and Kruger because of
his previous helpfulness adequately explains the plaintiff’s
conduct.
[107] In all the circumstances, I find
that on a balance of probabilities, it was not reasonable for General
Booysen to have arrested
the plaintiff, and the plaintiff must
succeed in claim 1. As far as it is necessary to do so, I record that
I do not base my decision
upon the improper exercise by General
Booysen of the discretion which he had once the jurisdictional facts
were satisfied. In my
view the fourth jurisdictional fact was not
satisfied. I should also make it clear in arriving at my conclusion,
I place no reliance
on the fact that General Booysen did not see the
statement taken from the plaintiff by Inspector Bhengu. I do so
because I do not
believe that it is necessary for me to consider what
General Booysen would have done had he been apprised of that
statement. The
fact is that when he made his decision he did not know
about it. It could therefore have played no role in deciding whether
or
not his decision was reasonable.
[108] In order to substantiate his
claim for malicious prosecution the plaintiff was required to prove
that:-
(a) the servants of the defendant set
the law in motion – i.e. instigated or instituted the
proceedings; and
(b) the defendants acted without
reasonable and probable cause; and
(c) the defendants acted with malice
(or
animo iniurandi
); and
(d) the prosecution has failed.
See
Minister for Justice and
Constitutional Development v Moleko
2009(2) SACR 585 (SCA), para
8
[109] It is common cause that the
prosecution was set into motion by the arrest of the plaintiff by
General Booysen and the further
processing by Warrant Officer George
at the instance of General Booysen. It is common cause that the
prosecution failed because
the charges were withdrawn against the
plaintiff. The initial act of General Booysen in arresting the
plaintiff was unreasonable.
The continued conduct of the prosecution
against the plaintiff until the charges were withdrawn appear to have
been at the instance
of both General Booysen and Warrant Officer
George. In this regard I refer to the Occurrence Book entry which
appears at Exhibit
A page 161 where, on the 23
rd
April
2006 he stated ‘No decisions are been made at this stage
regarding him and we are still proceedings.’ On the
8
th
May 2006 Warrant Officer George was still of the opinion that the
plaintiff ‘must be prosecuted’.
[110] Although the docket was given to
the public prosecutor from time to time for the purpose of the
remands, no consideration
of the matter and the charges to be levied
against the plaintiff appear to have been considered by the public
prosecutor. This
is further evidenced by the fact that no charge
sheet was ever given to the plaintiff, nor was he ever asked to
plead.
[111] With regard to the continued
prosecution of the plaintiff until the withdrawal of the charges,
General Booysen appears to
have relied upon the involvement of, and
input given to him by, Warrant Officer George. It is clear that
Warrant Officer George
was confused about the role which the
plaintiff allegedly played in the attempted escape of Kruger. It is
clear that until the
matter was clarified by the plaintiff when he
met with General Booysen, some considerable period after his initial
arrest, Warrant
Officer George believed that the plaintiff was
actively involved in the smuggling of the firearm into the cell of
Kruger. I have
no doubt that this contributed to the fact that the
State persisted in the allegations against the plaintiff.
[112] General Booysen and Warrant
Officer George must have appreciated the possibility that the
plaintiff was innocent. This can
be seen in the evidence of the
plaintiff and, indeed, the statement of Mostert. Yet they continued
with the prosecution of the
plaintiff in their zeal for a conviction.
In my view the continued prosecution of the plaintiff until the
charges were withdrawn
was unlawful. I am accordingly of the view
that the plaintiff should succeed in claim 2.
[113] With regard to the quantum of
damages suffered by the plaintiff, no evidence was led with regard to
any loss of earnings.
The quantum of the damages which he has
suffered may accordingly be seen under the following heads :-
wrongful arrest for which he claims
R500 000;
wrongful and malicious prosecution in
the sum of R500 000; and
damages for
iniuria
in the sum
of R500 000.
[114] No evidence has been led with
regard to the quantum of his other damages. Although he referred to
his legal fees no proper
evidence regarding this was led, and I
accordingly do not consider them.
[115] Given the circumstances of the
plaintiff’s arrest, I am of the view that justice would be
served were the defendant
to pay him the sum of R75 000 for the
wrongful arrest.
[116] Given the treatment which the
plaintiff received after his arrest and the continued prosecution of
him by the members of the
South African Police, I am of the view that
the sum of R75 000 would also be a just recompense for his malicious
prosecution.
[117] Given the treatment of him
during, and immediately after, his arrest the circumstances of his
continued prosecution, his embarrassment,
the damage done to him in
his job, and the public humiliation of appearing in the press and
having his name mentioned on television
on the occasions of the
continued adjournments of the matter, I am satisfied that he should
be paid the sum of R50 000 for the
iniuria
. I am also
satisfied that the defendant should pay interest on the total sum of
R200 000 from the date of service of the summons
being the 31
st
July 2007, together with costs. I am not satisfied that the conduct
of the police officials was such that those costs should be
ordered
on an attorney and own client scale.
[118] In the circumstances I make the
following order :-
the defendant is directed pay the sum
of R200 000 to the plaintiff;
the defendant is to pay interest on
that amount calculated at the rate of 15.5% per annum from the 31
st
July 2007; and
the defendant is directed to pay the
plaintiff’s costs of the action.
Date of hearing : 11
th
May
2011
Date of judgment :31
st
May
2011
Counsel for the plaintiff : A de Beer
SC (instructed by John Dua Attorneys)
Counsel for the defendant : J Nxusani
(instructed by the State Attorney)