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[2010] ZAFSHC 95
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Nienaber v Minister of Safety and Security (A290/09) [2010] ZAFSHC 95 (23 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A290/09
In
the matter between:-
LAMBERTUS
HENDRIK NIENABER
…...........................
Appellant
and
MINISTER
OF SAFETY AND SECURITY
…....................
Respondent
_____________________________________________________
CORAM:
H.M. MUSI, JP
et
MOLEMELA, J
et
MTHEMBU, AJ
_____________________________________________________
HEARD
ON:
14 JUNE 2010
_____________________________________________________
DELIVERED
ON:
23 SEPTEMBER 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
Introduction
[1] This is an appeal
against a judgment of Ebrahim, J wherein the learned Judge dismissed
with costs the appellant’s claim
for damages for unlawful
arrest and detention. The appeal is with leave of the court
a quo
.
The appellant sued the Minister of Safety and Security (the
respondent) in his capacity as member of cabinet with responsibility
over members of the South African Police Service.
Factual background
[2] The facts giving rise
to the appellant’s claim are briefly that in the evening of 24
April 2003 the appellant was arrested
by members of the South African
Police Service stationed at the Virginia police station on charges of
kidnapping and rape. He was
kept in police custody for the night and
brought before court the following day on 25 April 2003 when he was
released on bail.
Subsequently the charges against him were
withdrawn. The arrest had been without a warrant. The appellant’s
arrest followed
upon a complaint laid at the Virginia police station
by a 15 year old African girl who was accompanied and supported by
her parents.
[3] In laying the
charges, the complainant gave details of what had happened to her,
which are set out in a written police statement
handed in at the
trial as exhibit “G”. It is important to give an outline
of the salient features thereof. She reported
that on 22 April 2003
she had been walking from her home in Virginia to the shops when she
came across a white man who had parked
his motor vehicle next to the
road with two black men standing outside it. As she was about to
pass, the two black men confronted
her, threatened her with a knife
and forced her into the white man’s motor vehicle. She was
driven to an unknown destination
(suspectedly Welkom) where she was
taken into a house. The two black men then disappeared leaving her
alone with the white man
who then locked the doors and kept her in
that house up to the 24
th
April 2003 when he drove her
back to where she had been kidnapped and dropped her off. Throughout
the period of her captivity in
the unknown house, her captor had
repeatedly raped her, day and night. She said that she would point
out the culprit if she were
to see him and gave a description of his
physical features. She had taken down the registration number of the
vehicle in which
she was transported and gave this to the police (BHC
289 FS) and said it was a red bakkie. She estimated the age of the
suspect
at 30. A computer check done by the police confirmed that the
vehicle with the registration number provided by the complainant is
a
red Ford bakkie and it is common cause that it belonged to the
appellant.
The claims
[4] Now the appellant
initially claimed damages in the separate amounts of R100 000,00 each
for unlawful arrest, unlawful detention
and malicious prosecution
arising out of the same incident. However, the claim for malicious
prosecution was abandoned at the trial,
so that only the claims for
unlawful arrest and detention remain. The appellant contended that
his arrest had been unlawful on
the ground that it transpired without
a warrant in circumstances where the arresting officer did not have
reasonable grounds to
suspect that the appellant had committed an
offence. A dispute also arose at the trial as to which police officer
actually effected
the arrest. With regard to the unlawful detention
claim, the critical averment was that the appellant had provided the
police officers
who questioned him after his arrest with an alibi,
which they had verified. It was argued that in these circumstances
there had
been no justification for the appellant’s detention
overnight.
The applicable law
[5] It is trite that for
an arrest without a warrant to be lawful the requirements of
section
40
of the
Criminal Procedure Act, 51 of 1977
, must be complied with.
In casu
, the applicable provision of
section 40
is subsection
1(2) which provides that any police officer may arrest without a
warrant any person whom he reasonable suspects of
having committed an
offence referred to in schedule 1 to the Act. It is also trite that
once the fact of arrest has been established,
the onus rests on the
arresting authority to show that it was lawful.
In casu
, this
means that the onus was on the respondent to show that there had been
compliance with the requirements of
section 40(1)(b)
, in particular,
that the arresting officer had reasonable grounds to suspect that the
appellant had committed a schedule 1 offence.
In this regard, it is
common cause that the charges against the appellant related to
schedule 1 offences. What is in dispute is
the existence or absence
of a reasonable suspicion that the appellant had committed such
offences.
The issues
[6] The court
a quo
was called upon to decide four issues. First, which police officer
should in law be regarded as having effected the arrest. Was
it
Inspector Pretorius or Inspector Monyane? If it was found that the
arresting officer was Inspector Pretorius that would be the
end of
the respondent’s defence, because on the undisputed evidence
Pretorius was not possessed of any information which
could have
provided a basis for the relevant suspicion. If the arrestor was
Inspector Monyane, the second and all important question
arises
whether he could have had a reasonable suspicion that the appellant
was the culprit. Third, whether the appellant’s
detention was
justified in view of the alibi he had provided. Fourth, whether the
arresting officer should have adopted a less
drastic method of
securing the attendance of the appellant before court.
[7] The court
a quo
ruled that Monyane was the arresting officer and that it had been
shown that he had a reasonable suspicion that the appellant had
committed the offences. The court
a quo
further decided that
the appellant’s detention had been justified, his alibi
notwithstanding. On the question of whether
the arresting officer
should have adopted a less invasive method of securing the attendance
of the appellant in court, the court
a quo
decided that the
circumstances of this case justified the arrest method. The appellant
has challenged all these findings, which
means that the same issues
confront us in this appeal.
Who was the arrestor?
[8] I deal first with the
question of who in law arrested the appellant. This dispute arises
from the fact that whereas it was Monyane
who took the decision to
arrest the appellant, it was Pretorius who physically touched the
appellant pronouncing him arrested.
Now, Monayne testified that he
was aware that he was going to arrest a white man and that in his
experience conflicts often arise
when a black police officer has to
arrest a white suspect and for that reason he thought it prudent to
have a white officer present.
He also said that he does not know
Afrikaans and needed Pretorius to explain the suspect’s rights
in his language. Significantly
Pretorius did not accompany Monyane to
the scene. It is only after Monyane had located the appellant’s
house by the presence
of the red bakkie, pointed out by the
complainant, that he called Pretorius. Pretorius’ role was
confined to informing the
appellant that he was being arrested,
physically touching him and explaining to him his constitutional
rights. This was all done
in Monayane’s presence and it is
undisputed that from there Monyane took over. Pretorius then took his
way and did not even
accompany the suspect to the police station. It
is Monyane who transported the appellant to the police station and
handed him over
to the investigating officer, Inspector Deysel.
Consistent with the fact that it was Monyane who had gone out to
arrest the appellant
it is he who handed in an affidavit to the
investigating officer setting out the circumstances surrounding the
arrest. This affidavit
was handed in at the trial and appears at page
375 of the record.
[9] For his submission
that Pretorius, rather than Monyane, should have been found to be the
arrestor, Mr. Snellenburg, for the
appellant, placed much reliance on
the one concession Monyane made under cross-examination, that it was
Pretorius who arrested
the appellant. But this evidence should be
viewed in its proper context. It is an isolated statement that runs
against the grain
of Monyane’s whole evidence. The thrust of
his evidence was that it was his mission to arrest and that he had
called Pretorius
merely to assist him. The main reason he gave for
this is legitimate. It is rooted in the racial policies of the past
where black
officers in the old police force were prohibited from
arresting white people. It is a historical practice that did not
vanish overnight
with the advent of the constitutional order in South
Africa. Monyane may not have admitted it, but it is not inconceivable
that
many black police officers who served in the old South African
Police Force would still be apprehensive of arresting white people.
The second reason Monyane gave, based as it was on language
considerations, was equally valid. In my view, when Monyane said that
he did not arrest the appellant, he was merely conveying that he did
not physically touch him. Viewed in this context, he was not
saying
that he did not, in law, arrest the appellant.
[10]
Mr. Snellenburg also sought to rely on the English case of
RAISSI
v METROPOLITAN POLICE COMMISSIONER
[2009]
3 All ER. In this case the arresting officer had acted on the orders
of a superior in effecting an arrest, but did not himself
possess the
information giving rise to a reasonable suspicion that the suspect
had committed the relevant offences, relying instead
on the
assumption that his superior possessed the necessary information. It
was held that the arrestor must himself have reasonable
grounds for
suspecting that the suspect had committed the relevant offences and
could not rely on information not within his knowledge.
Now,
there is no doubt that the principle laid down in
RAISSI
is equally applicable in our law. Compare
RALEKWA
v MINISTER OF SAFETY AND SECURITY
2004 (1) SACR 13
,
2004 (2) SA 342
(TPD) at 347 H. The point, however,
is that it is not relevant to the present inquiry of whether the
arrestor was Monyane or Pretorius.
[11]
The court
a quo
endorsed the submission made by Mr. Madlanga, who represented the
respondent in the trial and in this appeal, to the effect that
Pretorius was acting as an agent of Monyane when arresting the
appellant. I agree with Mr. Snellenburg that there is no place for
the concept of agency in the law relating to unlawful arrest.
However, the less said about it the better in view of the fact that
in this appeal Mr. Mdlanga made no reference whatsoever to such
concept, let alone relying on it. Instead he argued that in
performing
the physical act of touching the appellant and explaining
his rights, Pretorius was merely assisting Monyane and that such act
of assistance did not detract from the fact that Monyane was the
arrestor. There is merit in this submission.
[12]
I can see no reason either in logic or common sense why a policeman
possessed of the information giving rise to a reasonable
suspicion
that a suspect has committed a schedule 1 offence should not be able
to seek the assistance of a colleague to effect
an arrest.
In
casu
, the evidence and objective
facts point to Monyane being the arrestor. He had asked Pretorius to
assist him and all that the latter
did was to touch the appellant and
explain his constitutional rights. This was done in Monyane’s
presence and as soon as
that was done, Monyane took over. I may point
out that
section 39
of the
Criminal Procedure Act dealing
with how an
arrest is to be effected, contains nothing that debars a policeman
from assisting a colleague during arrest and it
can be inferred from
subsection 1 thereof that the act of touching a suspect is not a
prerequisite for a valid arrest. It cannot
therefore be said that
because Monyane did not physically touch the appellant, he could not
be the arrestor.
Section 49(1)
of the
Criminal Procedure Act
specifically
recognises that the arresting officer may be assisted by
another officer. I therefore agree with Mr. Madlanga that at the very
least Monyane and Pretorius together arrested the appellant and as
long as one of them had the requisite reasonable suspicion, then
the
provisions of
section 40
have been complied with. In the event, I
hold that Monyane was the arresting officer.
The
issue of reasonable suspicion
[13]
The next question is whether Monyane had reasonable grounds for
suspecting that the appellant had committed the relevant offences.
This calls for a brief overview of Monyane’s evidence. His
evidence can be divided into three parts. The first part comprises
what the complainant allegedly told him and which was captured in the
complainant’s written statement, but excluding two
aspects,
namely, a description of the physical features of the suspect and an
estimate of his age. The second part comprises what
the complainant
allegedly told him at the police station, but which does not appear
in the complainant’s statement. The third
part comprises the
evidence of how Monyane found the appellant’s place and what
transpired there. I have already given a
summary of what is contained
in the appellant’s statement. I need only mention that in her
statement the complainant described
the suspect as tall, slender with
a sharp nose and short light brown hair and further that he was about
30 years old, aspects that
Monyane did not know about.
[14]
In relation to the second part, Monyane testified that the
complainant told him that prior to the day of the abduction, the
suspect had approached her proposing to have sex with her and that he
even offered her R200,00 which she declined. Further that
she knew
the street where the suspect stayed and will be able to direct the
police thereto.
[15]
In the third part, Monyane testified that he decided to go and arrest
the suspect, following complaints that nothing was being
done about
the case. He first telephoned the investigating officer Deyzel
telling her that he had new information and wanting to
know whether
he could go and effect the arrest. The latter gave him the green
light. Monyane had already obtained a computer printout
containing
the particulars of the owner of the red bakkie, which would obviously
contain the owner’s address. He, however,
said that he did not
disclose this information to the complainant, but rather relied on
the latter to guide him to the suspect’s
street. Once this was
found, he drove slowly and in the process the complainant spotted the
red bakkie and they stopped in front
of the gate of the premises in
which the bakkie was. He then telephonically summoned Pretorius to
the scene and they together entered
the premises. The appellant was
present in the yard and when the complainant saw him, she became
hysterical telling Monyane that
this was the culprit. She also
pointed to the t-shirt that the appellant was wearing and stated that
he had been wearing the same
shirt when committing the offences. The
appellant was asked who the owner of the bakkie was and he confirmed
that it was his. It
is the same bakkie with registration number BHC
289 FS that the complainant had given to the police. The appellant
was arrested
and Monyane took him to the police station where he
handed him over to the investigating officer. He submitted to
Inspector Deyzel
an affidavit as the arresting officer, which was
handed in as exhibit “H”.
Submissions
and assessment of the evidence
[16]
Now the appellant challenged the judgment of the court
a quo
essentially on the basis that the trial judge erred in finding that
the respondent had discharged the onus resting on him to prove
the
lawfulness of the arrest. This challenge rested on two grounds. The
first was premised on the argument that the arrestor was
Pretorius
and that since he was not possessed of any information providing any
basis for a reasonable suspicion that the appellant
was the culprit,
the requirements of
section 40
had not been complied with. It was
pointed out that Pretorius did not even testify. This ground
obviously falls away in view of
my conclusion that Monyane was the
arrestor. The second and alternative ground was that the information
at Monyane’s disposal
was not sufficient to found a reasonable
suspicion that the appellant had committed the offences. Now in his
heads of argument
and oral argument, Mr. Snellenburg took issue with
several aspects of Monyane’s evidence and questioned his
credibility as
a witness.
[17]
Mr. Snellenburg referred to the fact that Monyane did not write down
what the complainant told him and pointed to the fact
that important
information allegedly given to him does not appear in the
complainant’s statement. Counsel argued that if
the complainant
had disclosed the information comprising the second part to referred
to above, it should have featured in the written
statement. Counsel
suggested that Monyane fabricated the story. Indeed the record
reveals that Mr. Snellenburg extensively questioned
Monyane on his
failure to record what the complainant had told him and the
implications thereof.
Mr.
Snellenburg also criticised Monyane for not reading the complainant’s
statement before embarking on the mission to arrest
and submitted
that this was a serious default, because had he read the statement,
Monyane would have realised that the complainant
may have been making
a mistake in pointing out the appellant given that the appellant was
much older than the person described
in the statement.
[18]
In my view, Monyane satisfactorily explained why he did not record
what the complainant told him. It was not disputed that
sexual and
related offences were handled by a unit of specially trained
detectives and once Monyane had heard the complainant’s
story
he immediately contacted Deyzel, who promptly came to the police
station, interviewed the complainant, wrote down her statement
and
opened a docket. Moreover on his evidence, Monyane was not even in
charge of the charge office. Nothing turns on the fact that
he did
not write down what the complainant told him.
[19]
The difficulty I have with Monyane’s evidence relates to the
additional information not captured in the complainant’s
written statement. It can be accepted that it was not disclosed to
Deyzel when she interviewed the complainant, because it is very
important information which the investigating officer would not have
missed. I say this because a glance at exhibit “G”
reveals that Deyzel went about meticulously in recording the
complainant’s statement. It would appear that she recorded all
the essential information that the complainant gave her. It is more
likely that this additional information was provided later
after
Deyzel had already interviewed the complainant and left the police
station. Monyane himself hinted at this. He testified
that he told
Deyzel telephonically that he had new information when seeking her
permission to arrest. But when asked under cross-examination
what was
the new information, he became somewhat evasive and said that in fact
it was not new information as such. But I do not
see why he would
fabricate the story that the suspect had approached the complainant
earlier and proposed a sexual relationship
and also that the
complainant knew the street where the suspect stayed. This evidence
is consistent with the fact that the suspect
had waylaid the
complainant along the road she used when going to the shops. The
suspect must have seen the complainant before.
Besides, it is
undisputed that the appellant’s place is not far from the
complainant’s home. It is more likely that
this additional
information was given after Deyzel had taken the complainant’s
statement.
[20]
Mr. Snellenburg also questioned the reliability of Monyane’s
evidence that he was directed to the appellant’s place
by the
complainant. This criticism is based on the fact that Monyane already
was armed with the computer information disclosing
the particulars of
the owner of the red bakkie and counsel submitted that it is more
likely that Monyane relied on that information
to get to the
appellant’s home. I think there is merit in this submission. If
Monyane had said that he had relied on the
computer generated
information to get to the appellant’s place and that when he
got there, the complainant immediately recognised
the red bakkie and
subsequently pointed out the complainant as the culprit, that would
have made better sense, but to say that
he was directed thereto
street by street by the complainant, is not convincing, to say the
least.
[21]
The criticism relating to failure to read the complainant’s
statement before deciding to arrest the suspect, loses sight
of the
fact that Monyane did not have the docket in which that statement
would have been placed. At any rate, the age given by
the complainant
was no more than an estimation and did not necessarily mean that the
suspect was a young person. Nor could Monyane
be faulted for assuming
that the complainant would have told Deyzel the same story told to
him.
[22]
The discrepancies in Monyane’s evidence, do not, in my view,
detract from his credibility and the reliability as a witness.
The
court
a quo
observed him in the witness box and although it
did not make any definite credibility findings, it clearly believed
him and accepted
his evidence. I am not persuaded that the court
a
quo
was wrong in accepting his evidence and finding that he had
reasonably suspected that the appellant was the culprit. The
following
factors compel this conclusion:
(a)
The thrust of what Monyane says the complainant told him was also
told to Deyzel as the written statement, exhibit “G”,
shows. One critical point emerging from the statement is that the
complainant had all the opportunity to observe her abductor and
rapist and would thus have been in a position to point him out and,
importantly, she said so to both Deyzel and Monyane.
(b)
She gave not only a description of the motor vehicle that the culprit
drove, but also its registration number as well. Monyane’s
evidence that the complainant recognised this bakkie when she saw it
in the appellant’s yard, is undisputed and it is common
cause
that it is the appellant’s bakkie.
(c)
There is no dispute that the complainant pointed out the appellant to
Monyane as the culprit. The dispute relates to how the
pointing out
came about. The appellant’s version is that she pointed him out
only after he (the appellant) had been asked
about the ownership of
the bakkie. His evidence in this regard is rather bizarre and wholly
unconvincing. He claimed that the complainant
spoke Xhosa (a language
that he understands) when pointing him out, saying “Nguye lo”.
Yet the evidence is undisputed
that this was a Sotho speaking girl
from Lesotho who throughout communicated with Monyane in Sesotho. The
appellant also said that
the complainant pointed him out by nodding
her head. How he saw the nodding is not clear, given that he
testified that it was dark
as the streetlights were not functioning.
The appellant confirmed that Monyane confiscated the shirt that he
was wearing, which
corroborates Monyane’s evidence that the
complainant had said that the appellant was wearing the same shirt
when allegedly
committing the offences.
(d)
Monyane handed in an affidavit to the investigating officer as he was
required to do in terms of police regulations. That affidavit
contains the salient facts of what happened at the scene of arrest
and is consistent with Monyane’s version of events thereat.
(e)
In a nutshell, there was no doubt that serious schedule 1 offences
had been committed (at any rate it was not seriously disputed,
if at
all, that the complainant had been kidnapped and raped) and the
appellant was pointed out as the suspect consistent with
the
complainant’s earlier statement that she would point out the
suspect.
The
discretion to arrest
[23]
There is now ample authority for the proposition that the power to
effect a warrantless arrest in terms of
section 40(1)
of the
Criminal
Procedure Act entails
the exercise of a discretion, for the provision
does not say that a police officer
must
arrest but rather that he/she
may
arrest. This means that a police officer
acting in terms of the section has a choice whether to arrest or
adopt one or the other
milder methods of bringing the suspect before
court. It has been held that the statement made by Schreiner JA in
TSOSE v MINISTER OF JUSTICE AND OTHERS
1951 (3) SA 10
(A) at 17A to the effect that
“there
is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective...”
can no longer be valid in view of
the fact that the Constitution entrenches human rights, which include
the right to dignity and
freedom. This requires that less evasive
methods of procuring the attendance of the suspect in court should be
considered and adopted
where the circumstances of the case,
objectively viewed, require it. Where the circumstances do not
justify the more drastic method
of arrest, then the arrest would be
unlawful. See
RALEKWA v MINISTER OF SAFETY
AND SECURITY
,
supra
;
LOUW AND ANOTHER v MINISTER OF SAFETY AND
SECURITY AND OTHERS
2006 (2) SACR 178
(T);
GELLMAN v MINISTER OF SAFETY AND
SECURITY
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(WLD);
SERIA
v MINISTER OF SAFETY AND SECURITY AND OTHERS
2005
(5) SA 130
(CPD). In
MINISTER OF SAFETY AND
SECURITY v SEKHOTO AND ANOTHER
2010 (1)
SACR 388
(FB) a full bench of this court came to a similar
conclusion.
[24]
I now turn to consider whether
in casu
the discretion to
effect a warrantless arrest rather than either issuing a summons or
simply warning the appellant to appear in
court, was properly
exercised. But before doing so, it is necessary to make a few
observations. First, some of the judgments referred
to above, have
laid down various guidelines to be followed by a police officer
contemplating effecting an arrest in terms of section
40. Now
guidelines will always be helpful in doing what they are meant to do,
provide guidance. They cannot, however, be elevated
to the status of
hard and fast rules of law and instances are conceivable where they
may not have been observed, yet the arrest
may still be justified.
The nature and gravity of the alleged offence will also play an
important role. The bottom line is that
each case must be decided on
its particular facts and circumstances. Compare
MINISTER OF
SAFETY AND SECURITY v VAN NIEKERK
2008 (1) SACR 56
(CC);
[2007] 10 BCLR 1102
par. [17]. As was said in
MINISTER OF
SAFETY AND SECURITY v SEKHOTO AND ANOTHER
,
supra
, at
398g the inquiry in this regard is
fact specific
.
[25]
Second, it has to be borne in mind that whilst the Constitution
entrenches human rights and mandates the courts to interpret
and
apply all laws in conformity with its precepts and to promote its
spirit and values, it also recognises that there are instances
where
violation of the rights of citizens may be justified. Arrest
invariably entails a violation of human rights and yet it is
specifically authorised by section 35(1) of the Constitution, which
provides that persons may be arrested for having “allegedly
committed an offence”. The provision also stipulates conditions
meant to minimise its negative impact on the affected rights.
It
stipulates
inter alia
that the arrested person must be brought
before a court as soon as possible but not later than 48 hours after
the arrest.
Section 40
of the
Criminal Procedure Act must
be viewed
in the context of these constitutional provisions. This means that
once an arrest has been effected properly in terms
with this
provision, it becomes a justifiable violation of rights and is
lawful. The Constitution recognises arrest as a necessary
and
unavoidable violation of the affected rights. With respect, it cannot
therefore be right to say that
“
When
effecting an arrest, a police official must make basic enquiries to
ensure that constitutional rights will not be infringed
by an
arrest.
”
(
MINISTER
OF SAFETY AND SECURITY v SEKHOTO AND ANOTHER
,
supra
,
at 401d.)
[26]
Third, the inquiry into this issue of whether this or that method
should have been employed and indeed the whole issue of whether
there
was a reasonable suspicion that the arrested person had committed the
relevant offences, should not be tainted by the
ex
post facto
knowledge that the
arrested person was probably innocent or innocent, for that matter.
The inquiry should objectively focus on
the information that was
available at the time of arrest and the circumstances then
prevailing.
[27]
In the hearing of this matter this issue was argued as part of the
broader argument relating to whether there were reasonable
grounds
for suspecting that the appellant was the culprit. Mr. Snellenburg
argued that it should have been clear to the arresting
officer that
the appellant was an elderly person with a fixed place of residence
and that had he made proper inquiries the arresting
officer would
have found that the appellant posed no danger to anybody and that he
would not abscond. Counsel further submitted
that no reason was given
why a warrant of arrest was not first obtained and that at any rate
the appellant could have been issued
with a summons or simply warned
to appear in court. He submitted therefore that the arrest had been
unlawful on this basis.
[28]
I am no persuaded that the arresting officer did not properly
exercise his discretion in arresting the appellant. This matter
is,
on the facts, distinguishable from cases such as
RALEKWA
,
GELLMAN
and
SEKHOTO
,
supra
.
Here we have strong
prima
facie
evidence of commission of very serious schedule 1 offences and there
was a strong basis for suspecting that the appellant
was the
perpetrator. The appellant was unknown to the police and they could
not be expected to simply rely on his co-operation.
Moreover, the
charges were of a very sensitive nature, involving as they do,
serious allegations of abuse of a girl child with
racial
connotations. The police would be justified in wanting to avoid the
negative public perceptions that would follow if a suspect
in such a
case were to be seen to be treated with kid gloves. Moreover, the
information at the disposal of the arresting officer
marked the
suspect as a danger to the community. It must also be borne in mind
that Monyane intended to hand over the appellant
to the investigating
officer, who would obviously conduct further investigations. Arrest
pending further investigations is permissible.
See
DUNCAN
v MINISTER OF LAW AND ORDER
1986 (2) SA 805
(A)
.
The circumstances of the case justified immediate arrest and
detention.
Detention
[29]
Much was made in argument of the fact that the appellant disclosed an
alibi to the investigating officer Deyzel and her superior
Captain
Strydom during the appellant’s interrogation. He said that
during the period when the complainant was allegedly held
hostage and
raped at an unknown destination, he had been at work and this was
confirmed by his superior and a colleague with whom
he had travelled
to and from work in the relevant period. It was contended on behalf
of the appellant that this had called for
his immediate release from
detention. Furthermore, the appellant had alleged that he was
impotent and therefore could not have
committed rape and he had told
his captors that his doctor would confirm this. Counsel for the
appellant argued that this further
intimation should have been enough
to warn the police that they were dealing with a case of mistaken
identity and should have released
the appellant.
[30]
In my view, the explanation given by Captain Strydom in this regard
is plausible. It is basically that alibis can be concocted
and that
even if an alibi seems plausible it is not prudent for a police
officer to simply let a suspect go on the basis thereof.
In
casu
, Strydom said that he had the
complainant’s statement wherein she not only gives a
description of the culprit but also says
that she will be able to
point him out. He also had the affidavit of the arresting officer
which disclosed that the complainant
pointed out not only the vehicle
that her captor had driven, the registration number of which had been
given to the police, but
importantly also pointed out the appellant
himself as the perpetrator. In my view, Strydom’s attitude that
it was not up
to him but rather the court to decide where the truth
lied was justified. Besides, it can be accepted that the
interrogation proceeded
into the middle of the night and the
appellant was to be brought to court the following morning, well
within the 48 hours stipulated
by the Constitution.
[31]
A further factor to take into account is that further investigations
had to be conducted, including DNA tests, the results
of which had to
be awaited. This is an important consideration because a positive DNA
result would have had a strong impact on
the appellant’s alibi.
It is important to note that the court
a quo
saw and observed
the appellant in the witness box and it remarked that the appellant’s
physical features fit the complainant’s
description of the
culprit. It may be that Deyzel and Strydom also made a similar
observation which would explain their reluctance
to act on the
appellant’s alibi.
Conclusion
and order
[32]
I come to the conclusion that the appeal ought to be dismissed and
the following order is made:
The
appeal is dismissed with costs.
____________
H.M. MUSI, JP
I concur.
________________
J.B. MTHEMBU, AJ
On
behalf of appellant: Adv. N. Snellenburg
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of respondent: Adv. M.R. Madlanga SC
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp