IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case No.: 1071/2003
In the matter between:
H W STEENBERGEN First Plaintiff
Z J CILLIERS Second Plaintiff
J J A HILLS Third Plaintiff
G J DE BEER Fourth Plaintiff
and
THE MINISTER OF SAFETY & SECURITY Defendant
AND Case No.: 1072/2003
In matter between:
N F VAN ZIJL First Plaintiff
J N MEYER Second Plaintiff
M A MYBURGH Third Plaintiff
and
THE MINISTER OF SAFETY & SECURITY Defendant
_____________________________________________________
JUDGMENT: KRUGER, J
_____________________________________________________
HEARD ON: 6, 7, 8 & 9 JUNE 2006, 5 JULY 2006
_____________________________________________________
DELIVERED ON: 14 JULY 2006
_____________________________________________________
[1] Plaintiffs instituted claims for unlawful arrest and detention,
malicious prosecution and defamation. Two actions were
consolidated, and a rule 33(4) order was made that liability
first be decided. Al the plaintiffs except De Beer were
police officials of Frankfort Police Station. Superintendent
Steenbergen was the Station Commandor and Captain Van
Zijl was head of the detectives.
[2] The following aspects are common cause between the
parties:
2.1 Early in April 2002 all the Plaintiffs were arrested by
employees of the Defendant, acting within the
course and scope of their employment with the
Defendant. The Defendant’s vicarious liability is
uncontested. All the arrests were made without
warrants.
2.2 The Plaintiffs were arrested on the following dates:
2.2.1 Steenbergen, Cilliers and De Beer on 3
April 2002;
2.2.2 Hills, Meyer and Myburgh on 5 April 2002; and
2.2.3 Van Zijl on 8 April 2002.
2.3 All of the Plaintiffs, except Cilliers, were released on
bail on 9 April 2002. Cilliers’ bail was opposed in
the Magistrates’ Court, but a bail appeal to the High
2
Court succeeded and he was ultimately also
released on bail on 17 April 2002.
2.4 Steenbergen, Cilliers and De Beer, who were all arrested on
3 April 2002, appeared in Court the following day, namely on 4
April 2002, but they remained in custody. Eventually all the
Plaintiffs appeared on 9 April 2002.
[3] As far as the claims relating to the unlawful arrest and
detention are concerned, the Defendant pleads that both
the arrest and detention were lawful and were made in
terms of Section 40(1)(b) of the Criminal Procedure Act, 51
of 1977 in that:
3.1 the arresting officer was a peace officer as defined in
the Criminal Procedure Act, and
3.2 the plaintiffs were reasonably suspected of having
committed the offence of murder.
In respect of the claims for malicious prosecution the
defendant pleads that there were reasonable grounds for
the institution of legal proceedings and that such
proceedings were justified.
[4] As to the defamation claim plaintiffs alleged that employees
of defendant published allegations that plaintiffs were
3
criminals and guilty of murder.
Plaintiffs alleged, apart from entries in court record books,
that Provincial Police Commissioner Gaobepe made press
statements to the following effect:
¡°6.1.1.2.1 “We are here to rid the South African Police Service
of people committing crime and abusing their power.”
Sien Aanhangsel “C” hiertoe.
6.1.1.2.2 “I am concerned about such behaviour in the South African
Police Service. We will eventually rid the SAPS of officers who abuse their
power and are involved in criminal activities.” Sien Aanhangsel “D” hiertoe.”
Defendant pleaded that its employees stated that plaintiffs were suspected of
committing the crime of murder, and further that its employees published
the statement to persons who had a duty and right to receive the statement,
and that the statement was true and that its publication was to the benefit of
the public.
[5] The incident which gave rise to the arrest, detention and
prosecution of the plaintiffs was the assault of one, Mzolo
at the river near Frankfort on the 2 nd November 2001.
4
Mzolo made a statement to the police on 16 December
2001, went to see the doctor on 23 rd December 2001, and
died on 27 March 2002.
WITNESSES CALLED
[6] The Plaintiffs called a single witness, namely Van Zijl. In
response the Defendant called the following four witnesses:
6.1 Inspector S E Mbele (“Mbele”). He was the first
police officer that investigated the criminal charge
laid by Mzolo;
6.2 the head of detectives in the Eastern Free State area, Snr
Superintendent Qubushane (“Qubushane”);
6.3 Superintendent S S Moteka (“Moteka”). He was one of the
senior detectives instructed by Qubushane to assist in the
investigation of the matter
6.4 Superintendent R K Mokoena, who was also one of the
senior officers later tasked to assist in the investigation.
INSPECTOR MBELE
[7] He is a member of the South African Police Service
stationed at Villiers. He was the initial investigating officer
in the incident involving the assault on Mzolo. He did not
know how the docket was transferred from Frankfort to
5
Villiers. His commander, Inspector Viljoen, gave him the
docket for further investigation on 20 November 2001. The
alleged assault took place on 2 November 2001 and the
complainant opened a case on 16 November 2001
according to the investigation diary.
[8] Mr. De Beer, who worked for the municipality, was the only
plaintiff named in the diary at that stage. De Beer was also
the commander of the SA National Defence Force
Commando at Frankfort.
[9] Mbele took several witness statements. He went to the
Frankfort Hospital where he took the statement of one Masilo, a
male nurse, who said that Myburgh and De Beer offloaded Mzolo
at the hospital on 2 November 2001.
[10] He also took the statements of Motlaung, Ntlapo and
Elizabeth Mofokeng.
[11] Mbele knew that Myburgh was an inspector in the SAPS and
Frankfort. Myburgh promised to give Mbele a statement. That
statement is in bundle D, at page 8. It is dated 30 March 2002.
[12] Mbele asked Inspector Hills and Sergeant Meyer about the
incident. Both said they would make statements. They did not at
that stage tell him what happened. While he was waiting he got
the news that Mzolo had died.
[13] After having confirmed that Mzolo had died, Mbele again
6
spoke to Hills and Meyer about statements on the 2 nd of
April 2002. At that time they told him they were present
when the incident happened, and would tell him in full what
had happened. The next day he went to Hills and Meyer.
They had already written their statements. At the bottom
Mbele wrote the attestation. Meyer’s statement is
contained at D.4, dated April 3rd 2002 at 11:00 am. The
statement of Hills is at D.1, dated 3rd April 2002 at 15:50.
[14] Mbele phoned Inspector Matthysen, the supervisor at the
Detective Unit at Bethlehem and told him that Mzolo had died.
They agreed that they should change the charge to murder.
Matthysen asked Mbele to go the Bethlehem urgently.
[15] At Bethlehem Mbele saw Qubushane and left the docket
with him. He thought he handed the docket over during the
afternoon of the 2 nd April 2002. He got the statements of
Hills and Meyer later, after he had handed over the docket.
He gave those statements to Moteka. Mbele had told
Moteka that Hills and Meyer had promised to give him
statements.
7
[16] In crossexamination Mbele was asked about the date the
docket was handed over. He confirmed that the entry in
exhibit “E”, the Investigation Diary, at C.10:
“2002/4/4:
Supt Moteka and Mokoena for further investigation. Insp.
Mbele will help in the investigation.”
(Although he could not read the dates, Senior
Superintended Qubushane later confirmed that the date of
the entry was 4 April 2002.)
[17] Immediately below that, there is an entry by Superintendent
Moteka:
“2004/4/4 Docket received for further investigation.”
And below that:
“2002/4/4 The suspects Steenbergen, De Beer and Cilliers
approached on 2002/4/3. Case against them explained, and
there rights explained. The three suspects were arrested and
apprehended in Police Cells”.
Also signed by Moteka.
[18] Mbele said that before any suspects were arrested, the
docket went out of his hands.
[19] Asked why he did not request De Beer for a statement,
8
Mbele said De Beer could be a suspect. It was better to
get all the witness statements before going to De Beer.
Mbele wanted to get all the information and send it to the
DPP so that the DPP could decide on the prosecution. The
previous cases he had investigated where police members
were involved were not serious cases. It had never
happened before in his experience that suspects from
Frankfort were detained at police cells in Qwa Qwa, about
200km away from Frankfort.
[20] When Mbele asked Myburgh for a statement, he was very
cooperative. Myburgh was asked to make a witness statement.
He was under the impression he would be a witness.
[21] In reexamination Mbele testified that if you are of the view
that a suspect’s colleagues might interfere with the
investigation, you detain the suspects at other places than
the place where they are employed in the case of police
officers.
QUBUSHANE
[22] Senior Superintendent Qubushane is the area head of the
9
Detective Services in the SAPD of the Eastern Free State,
stationed at Bethlehem. All detectives in the Eastern Free
State report directly to him.
[23] Qubushane heard about this case from his deputy,
Matthysen, who arranged for the docket to be brought to
him. Qubushane and Mbele went to the Area
Commissioner, whom Mbele briefed on the matter.
Qubushane then appointed Senior Superintendent Moteka
and Senior Superintendent Mokoena as joint investigating
officers. They both arrived the same day. Mbele briefed
them.
[24] Qubushane did not make notes in the Investigation Diary
on that day because he had to attend a meeting in
Bloemfontein and was in a hurry.
[25] Qubushane testified that the next day he was in
Bloemfontein when Moteka told him telephonically he was
going to make arrests. Qubushane informed the Area
Commissioner of that fact.
10
[26] In crossexamination Qubushane stated that he was not
the person who decided to arrest the plaintiffs. He could
not avoid the arrest.
[27] Asked when a police official can make an arrest under
section 40(1)(b) of the Criminal Procedure Act, Qubushane
said, you can arrest if you have enough evidence to secure
a conviction and before a police officer can be arrested the
opinion of the DPP must be sought according to Standing
Order 107 of 5 August 1993.
[28] Both these statements by Qubushane were incorrect.
Section 40(1)(b) requires a “reasonable suspicion”, not
“enough evidence”. Standing Order 107 requires the prior
authority of the DPP for the prosecution not for the arrest.
Standing Order 107 states that at serious offences, police
officials may well be arrested without further ado in
accordance with section 40 of the Criminal Procedure Act.
11
[29] Qubushane said a summons is only issued where the
docket was sent the DPP or Public Prosecutor, who will
then send a summons to be served. As a warning can only
be used where the expected penalty is less than R1 500 up
to 2003, when the amount was increased to R2 500, that
leaves arrest as the only practical option.
[30] Qubushane testified that if the case is not serious, it will be
investigated by the DPP. However, if the case is serious,
and the evidence is there, the member will be arrested,
taken to court. The public prosecutor will postpone the
case and the docket will be sent to the DPP for decision.
[31] It was put to Qubushane that he instructed Moteka to
arrest, which he denied. He also denied that he made up
his mind to arrest before the 3rd of April 2002.
[32] Qubushane said he never regarded the plaintiffs as
persons who would flee and not stand trial.
12
[33] Asked why a warning was not used, Qubushane said in
certain circumstances the instructions do not allow the use
of a warning, also not a summons.
[34] Regarding the question why some of the plaintiffs were
held in Qwa Qwa, Qubushane said he had nothing to do
with that decision. Qubushane said Moteka should be
asked why Cilliers was held at Phuthaditjhaba. Qubushane
could not explain why De Beer (not being a police official)
was also held at Qwa Qwa.
[35] It was put to Qubushane that 16 police vehicles were used,
with 36 police officials to execute the three arrests on the
3rd April 2002. Qubushane said Moteka requested enough
manpower. Qubushane could not dispute that the officials
effecting the arrest had R5 rifles and sharp ammunition.
Qubushane could not explain the need for the backup.
[36] Qubushane testified that on the morning of 3 rd April 2002
13
Mbele brought him the docket. That evidence is clearly
incorrect, because it is an admitted fact that Cilliers,
Steenbergen and De Beer were arrested on the 3 rd of April
2002 all relatively early in the morning.
[37] On the day he saw the docket, Qubushane left for
Bloemfontein at about 11:00, he had a 14:00 meeting in
Bloemfontein. While he was at that meeting, in
Bloemfontein, before 16:00 Moteka telephoned Qubushana
and said he was going to arrest. He did not say when.
[38] The Constitution 35 Notice explaining rights to Cilliers, was
dated 3rd April 2002 at 10h10. According to Mokoena, Cilliers was
the last of the three to be arrested that day. Qubushane could not
explain how Cilliers could have been arrested at 10h10 if Moteka
only told him at 16:00 that he intended effecting arrests.
[39] Portions of an affidavit which Area Commissioner Nkuna
had made in a related urgent application were read to
Qubushane, inter alia where he said that he gave Nkuna a
written report of 3 pages on 26 March 2002, that is, before
3rd April 2002 when according to Qubushane he first saw
the docket. Qubushane could not explain how it was
14
possible that Nkuna could refer to a report written by him
before he had knowledge of the matter.
[40] It was put to Qubushane that Motaka took a rushed
decision to arrest, to which Qubushane replied that that he
did not know what information Moteka had. Qubushane did
say, though, that when the docket was with him, the
information in it was insufficient for arrest.
[41] In reexamination Qubushane was asked whether, in his
office, he is required to decide whether there are grounds
to arrest without a warrant. He said if he had doubt he can
ask the legal officer.
SENIOR SUPERINTENDENT MOTEKA
[42] Moteka is a senior superintendent in the SAPS. He was
called to Bethlehem by Qubushane. He said it could have
been the 2 nd of April 2002, he was not sure. Qubushane
showed him the docket of the case where Mzolo had died.
Qubushane said he wanted Moteka and Superintendent
15
Mokoena to investigate the case. He took the docket back
to Harrismith with him, where he read it. The statements,
he said, implicated police officers. There was also a
witness statement by Myburgh.
[43] Moteka said he arranged with Mokoena to make arrests the
morning after he read the docket. They met at Frankfort
Police Station at 7am and went out to make the arrests.
[44] The basis for the decision to arrest was:
1. They had statements;
2. The statements said that the deceased was assaulted by
approximately six people;
3. De Beer and Cilliers were implicated;
4. They also realised there was a coverup in this case,
because after the deceased had been assaulted and murdered, it
was never reported at the police station.
[45] They arrested Steenbergen, Cilliers and De Beer that
morning and detained them at Qwa Qwa. That was
because there were area arrangements that a police officer
should not be detained at the where he works. The
suspects were officers who were senior to officers working
16
there. After the arrests Mbele brought the statement of
Hills, and the others were arrested.
[46] Moteka set out the sequence of events as follows:
(i) He met Qubushane, left with the docket.
(ii) The next day he arrested three persons.
iii) Then he got further statements.
iv) Then effected other arrests.
[47] Moteka testified that Advocate Giorgi from the DPP’s office
issued an instruction that the charges against Hills,
Myburgh, Meyer and Van Zijl be withdrawn. She wanted to
use Van Zijl as state witness, and instructed Moteka to
obtain his statement. Van Zijl refused to make a statement.
Advocate Giorgi withdrew the case against Myburgh
because she saw nothing which linked him to the charge.
Moteka tried to draw her attention to the fact that there
were statements which place him on the scene. Moteka
also pointed out that Myburgh took Mzolo to hospital, and
that Myburgh gave a false statement, saying that he found
the deceased injured but did not know by whom he had
17
been injured and Myburgh did not report this at the police
station. Moteka said to advocate Giorgi that this was a
coverup or defeating the end of justice. Advocate Giorgi
said there was no statement to show that he gave false
information. She said they could be charged later for
defeating the ends of justice.
[48] In crossexamination Moteka said he arrested Steenbergen
and Cilliers; he was present when Mokoena arrested De
Beer.
[49] Asked whether he made the decision to arrest the three
that day, Moteka said they made the decision together, that
was why they met at Frankfort. It was pointed out to him
that he had testified in chief that he studied the docket and
resolved that the three should be arrested. He said that
was correct. Asked whether he arranged for extra police
reinforcements that afternoon, Moteka said Mokoena made
those arrangements. He thought that Mokoena made the
arrangements for the reinforcements the previous day
18
because when they parted the previous day, there was the
understanding that they would meet the next day.
[50] It was pointed out to Moketa that he had testified that, after
having studied the docket at Harrismith, he decided to
arrest the three. Now his evidence suggested that the
decision to arrest was taken before he left Bethlehem.
[51] Asked under what circumstances a police officer can effect
an arrest without a warrant, Moteka responded that he
could do that if he was satisfied that a crime has been
committed, and does not have time to go and get a
warrant. He said that is stated in the Criminal Procedure
Act.
Counsel wanted to ensure that he understood the answer
correctly and asked
¡°As long as a policeman is satisfied that a crime has been
committed, he can arrest irrespective of the type of crime?”
To which Moteka responded:
“Correct.”
19
[52] When it was put to him that he was completely wrong, he
explained that the confusion might arise from the
translation from Sesotho to English. He said he had
“reasonable suspicion” in mind. He said he had a
reasonable suspicion that those three persons had
committed murder; he took the decision to arrest according
to the Criminal Procedure Act, the Standing Orders cannot
overrule it, they are just administrative; there is nothing
which says he must check the Standing Orders before
arrest; there is no provision in the Standing Orders which
says he must not arrest.
[53] Moteka did not consider applying for a warrant because it
was during the night that he got the docket. Moteka said
Qubushane did not remember correctly, their meeting was
not at 11:00, or 14:00, it was at night. It was at Harrismith,
during the night, when he was studying the docket that he
decided to arrest. He did not phone Qubushane after
studying the docket. Qubushane knew that they were
going to make the arrests.
20
[54] It was put to Moteka that he took a rushed decision to
arrest, to which he responded that a person was dead,
people had to be arrested. He confirmed that he took the
decision to arrest senior police officers after having the
docket in his possession for a couple of hours. He did not
see that as a rushed decision, although the death of Mzolo
had occurred 8 days previously.
[55] Moteka said that after the plaintiffs were in custody, he
requested the court that plaintiffs should not be released
the same day so that he could hold an identity parade. The
suspects were scattered, some of them were on leave, it
was not easy to got them together.
[56] As to the cause of death, Moteka did not have a
pathologist’s report. He had the J88. It did not cross his
mind that the deceased could have died from other causes.
[57] It was put to Moteka that he could have asked the suspects
21
for statements rather than arrest, to which he responded
that most of them had already given statements. When it
was pointed out that as at the 3 rd April 2002 only Myburgh
had made a witness statement, he agreed. He said the
plaintiffs could not be trusted from the beginning, they were
hiding something.
[58] Regarding the place of detention, Moteka said that he was
the one who decided that the men were to be held in Qwa
Qwa. First he said that there were area arrangements that
a police officer should not be held where he works. When
pressed he said he did not investigate the possibility to
detain them at other nearby police stations. He could not
find space at Bethlehem. Asked why not Heilbron, he said
he was not obliged to phone all the other police stations. It
was put to him that Heilbron, Vrede, Warden, Reitz,
Roadside, Cornelia were all closer than Qwa Qwa, which
was about 180km away. He could not dispute that.
[59] De Beer, not a policeman, was also held at Qwa Qwa.
22
Moteka said he held De Beer an Qwa Qwa because he
could not separate him from the others. It was put to him
that those detained in Qwa Qwa were also separated, each
held at a different police station there. The police stations
were close to each other, he said.
[60] Asked whose idea the Task Force for the arrest was,
Moteka said he did not know.
[61] Regarding the question why only 3 of the 6 suspects were
arrested on the 3 rd of April 2002, Moteka replied that the
others were not there. Immediately thereafter he said he
did not look for them at that stage. The third version was
that they only arrested those they could find. They did not
look for the others. Then Moteka said that Mbele had told
him that the others would make statements, he assumed
they would make statements but that he had not received
them yet. That was the fourth version.
[62] Moteka said Mbele had told him what the statements would
23
say, saying who the persons were who assaulted the
deceased. It was put to Moteka that Mbele had said he
knew no details of what Hills and Meyer would say except
that they were at the scene. Moteka responded that if
Mbele had only told him that they were on the crime scene
that would not be enough for him. It does not follow that
because a person is at a crime scene an inference of guilt
can be drawn, he said.
[63] Asked why he did not arrest Myburgh and Hills on the 3 rd,
Moteka said he was waiting for their statements so that he
could see what they say.
[64] From this response it appears that the reason for the arrest
was to obtain statements. The fourth version as to why he
only arrested three on the 3 rd of April was that he would
decide after receiving their statements and other
statements from other witnesses what to do.
[65] Regarding Van Zijl, Moteka was asked what information he
24
had that Van Zijl had committed murder. Moteka
responded that he had the following:
(i) Statements in the docket which said that the
deceased had been assaulted by 6 males;
(ii) Myburgh’s statement which placed him on the scene;
(iii) The statement from a person near the scene who could
identify Cilliers and De Beer;
(iv) The statement of Steenbergen, where he said that
Van Zijl and Cilliers are the persons who assaulted
the deceased.
(v) The statement of De Beer said the same.
[66] The statement of Steenbergen was put to Moteka, and he
was asked to point out where he says that Van Zijl
assaulted the deceased. Moteka agreed that the statement
did not say that.
[67] The statement of De Beer (B.19) was put to Moteka, and
he was asked where it says that Van Zijl assaulted the
deceased. He responded that Van Zijl pushed Mzolo off
the vehicle. It was put to him that De Beer said:
¡°Op pad polisie stasie toe het ek in Vanreenenstraat gery en met my
25
regter kantste spiëel gesien die verdagte lê in die pad. Ek het
stilgehou en teruggestoot en ek het weer die persoon opgelaai. Agter
die bakkie saam met die verdagte was kapt VAN ZIJL, insp
CILLIERS, insp HILLS en sersant MYBURG, supt
STEENBERGEN en sersant MEYER het saam met my
voorgery. Ek het hulle gevra wat te donder dink julle doen
julle. Een van hulle het ges ê hy het afgeval maar ek kon nie
onthou wie was dit gewees nie. Ek het toe gesien verdagte is
baie deurmekaar. Ek het besluit om hom hospitaal toe te vat.
Ons het toe almal die verdagte na die hospitaal geneem.”
[68] Moteka said that was all he had against Van Zijl.
[69] Asked about the case against Meyer, Moteka said he was
an accessory because he was present.
[70] As to Myburgh, Moteka testified the following:
He agreed that he was at the scene. Witnesses say that the deceased was
assaulted by about 6 people. A crime was committed in his presence. He gave false
information at the hospital in that he concealed the crime which had been committed.
If the deceased could not open the case himself, no one would have known what had
happen to him. Those were the grounds on which he believed that Myburgh could be
convicted.
[71] When it was put to Moteka that it was totally unnecessary
26
to arrest, he said it was necessary because of the
seriousness of the offence.
[72] In reexamination Moteka testified that he had read the
statements of Hills, Meyer and Myburgh when the second
arrest were made, and they played a part in making those
arrests.
SUPERINTENDENT MOKOENA
[73] The other investigating officer was Superintendent
Mokoena. He and Moteka got the docket from Qubushane.
They got instructions to proceed. Early the next day he
met Moteka at Frankfort. There were also members of
ACCU, the Area Crime Combating Unit. They arrested
Steenbergen at his house, De Beer as his office, and after
that Cilliers. He said Qubushane arranged for the ACCU;
in crossexamination he however said he did not know, he
thought Qubushane had done so.
[74] In crossexamination, Mokoena said that Mbele only
27
brought the docket; he did not stay with them. It was put to
him that when they left Qubushane they had decided to
make the arrests with which he agreed. Asked whether
Qubushane said they should arrest the next day, he said
Qubushane left that to them.
[75] Asked whether the decision to arrest involved all, he said,
no, it was limited to the 3 who were involved according to
the statements. It was put to him that Moteka had testified
that he decided at Harrismith to arrest all. Mokoena could
not explain that.
[76] As to the reason why the plaintiffs were detained at Qwa
Qwa, Mokoena testified that Moteka had said that was
done because there was enough space at Qwa Qwa.
[77] In response to a question what evidence he had to arrest
Van Zijl for murder, Mokoena responded:
(i) The statement by Meyer;
28
ii) The explanation of De Beer, and
iii) The statement by Steenbergen.
Those three documents.
[78] Mokoena said he never feared that the plaintiffs might
interfere with state witnesses. He also did not regard them
as a flight risk. He said the type of crime did not allow that
a summons be given.
VAN ZIJL
[79] Van Zijl was the only witness for the plaintiffs. During 2001 a
docket landed on his desk where Cilliers and others were the
accused. The charge was assault with intent to do grievous bodily
harm. He read the docket and changed the charge to common
assault. He forwarded the docket to Bethlehem. Subsequently he
got a message to call Qubushane. Qubushane was very angry
about two things:
(i) That he had changed the charge;
(ii) That Cilliers had not been arrested immediately.
[80] Qubushane instructed Van Zijl to arrest Cilliers. Van Zijl
said he was not prepared to arrest Cilliers without a warrant
and according to him there was no reason to arrest Cilliers.
The next day Qubushane arrived at Frankfort and arrested
29
Cilliers without a warrant. Cilliers instituted a claim for
wrongful arrest, for which he was later compensated.
Qubushane made a case of defeating the ends of justice
against Van Zijl because Van Zijl refused to arrest Cilliers.
The DPP declined to prosecute Van Zijl.
[81] It is significant that during his evidence either in chief or in
crossexamination Qubushane did not contest any of these
allegations.
[82] On the 3 rd of April 2002 Van Zijl was in the Kruger Game
Reserve with his family. He got news that Cilliers, De Beer
and Steenbergen had been arrested. On the 4 th of April
2002 Qubushane telephoned Van Zijl, asked where he
was. Qubushane told Van Zijl that other people said he
was at the scene where Mzolo was injured. Qubushane
wanted a statement from Van Zijl. Van Zijl said he first
wanted to speak to his attorney.
[83] The afternoon of the 5 th of April Qubushane called him
30
again. Qubushane told him to return to Frankfort, because
the Commissioner said he had to be arrested. Van Zijl
asked Qubushane whether the people said he had
committed an offence, to which Qubushane replied “No,
they said you were there”. Qubushane said he would send
a vehicle to fetch Van Zijl. Van Zijl promised to return, but
later changed his mind and only returned on Monday the
8th of April 2002.
[84] On the 8 th April 2002 Van Zijl went to Tweeling Police
Station with his attorney. There Mokoena, the investigating
officer, arrested him. The charges were murder and
defeating the ends of justice. Van Zijl was locked up in the
police cells at about 1011am. An identity parade was held
during the afternoon. Van Zijl saw some of the other
plaintiffs. Hills, Meyer and Myburgh went to court but not
Van Zijl because he had not been charged yet. He did not
know why he had not been charged yet.
[85] Later the afternoon, Mokoena came to take Van Zijl’s
31
fingerprints. They told Van Zijl to pack his things, they
were going to Qwa Qwa because Van Zijl was not co
operating. Van Zijl said that he had a constitutional right to
be detained near his family; Van Zijl’s attorney had also
said that to Mokoena previously. Then Mokoena told them
not to take Van Zijl and he remained there.
[86] On the morning of the 9th April 2002 they went to court. All
the plaintiffs got bail except Cilliers. At court Van Zijl got
two documents:
(i) Notice of suspension with immediate effect without
pay;
(ii) Notice to vacate his government house.
[87] After 5 court appearances, the charges against Van Zijl
were withdrawn. He was not reappointed.
[88] The outcome of the case was that all the plaintiffs against
whom the charges had not been withdrawn, were
discharged under section 174 at the end of the State case.
The charge at the trial was culpable homicide, not murder.
32
Not one of the plaintiffs was ever charged with defeating
the ends of justice.
[89] On the defamation claim Van Zijl referred to the particulars of claim and
said nothing further.
LEGAL PRINCIPLES AND EVIDENCE
I. Unlawful arrest and detention:
(a) Legal principles
[90] Unlawful arrest and detention arises when a person has
intentionally and without lawful justification, totally restrained the
personal liberty of another. The onus of proving justification rests
on the defendant (MAY v UNION GOVERNMENT 1954 (3) SA
120 (N) at 124 G – H). All arrests are prima facie illegal, and if the
defendant alleges the existence of reasonable grounds of
suspicion, defendant must prove that (loc cit).
[91] Mr. Notshe, for the defendant with reference to DUNCAN v
MINISTER OF LAW AND ORDER 1984 (3) SA 460 (T)
confirmed on appeal in 1986 (2) SA 805 (A) stressed that
reasonable suspicion is not to be equated with prima facie
proof. Suspicion is a state of conjecture where proof is
lacking.
33
[92] Mr. Van der Merwe on the other hand, says that the
suspicion has to be reasonable.
[93] With reference to CARMICHELE v MINISTER OF SAFETY
AND SECURITY AND ANOTHER 2001 (4) SA 938 (CC)
Mr. Notshe submitted that the police had a duty to protect
the public by detaining persons where appropriate. He
says that if the courts require a high level of suspicion
before an arrest can be made the constitutional objects of
the police may be chilled.
(b) The facts:
[94] Mr. Notshe says the circumstances at the time of the arrest,
from which a reasonable suspicion arose, were the following:
1. A police docket, CAS No. 60/11/01 had been opened
in Frankfort;
2. Prior to the opening of the docket no report of the incident
had been made to the police;
3. Although the police docket was a Frankfort docket it had
found its way to Villiers;
4. Nobody knows how the docket was transferred to Villiers;
5. Dockets are transferred to other stations only if the
matter concerns police officials of that particular
34
station;
6. It was therefore clear at the time that police officials of
Frankfort were involved;
7. At the time of the arrest of plaintiffs the police docket
contained the information which is in Bundle A of plaintiff’s bundle
of documents;
8. Inspector Mbele had interviewed Messrs Hills, Meyer and
Myburgh and all three had undertaken to make written statements
regarding the incident.
[95] The first question to be determined is who decided to
arrest, for it is the suspicion of that person which has to be
assessed (BIRCH v JOHANNESBURG CITY COUNCIL
1949 (1) SA 231 (T) at 239). On the facts of this case I find
that Qubushane took the decision to arrest. That appears
from the evidence from both Moteka and Mokoena that,
when they left Bethlehem on the 2nd April 2002, the
decision to arrest had been taken. That was why the arrest
task force was arranged. There are parts of the evidence
of both Moteka and Mokoena which clearly indicate that the
decision to arrest was made before they left. Moteka, for
instance, says that he did not telephone Qubushane to tell
him that he was going to arrest but Qubushane knew he
was going to arrest. The evidence of Mokoena is to the
35
same effect. I reject the evidence of Moteka that he
decided during the evening at Harrismith to arrest the
persons. Qubushane was a very poor witness. For
example, he gave five different reasons as to why the
persons were detained in Qwa Qwa and not at another
place.
[96] Having decided that the defendants did not give truthful
evidence as to how the decision to arrest was arrived at,
the question arises, why the egg dance? Moteka is now
taking all the responsibility in circumstances where it was at
the very least a joint decision. And not to forget
Qubushane’s evidence that, when he saw the docket, the
same docket on which Moteka decided to arrest, there was
not sufficient evidence to arrest according to Qubushane.
[97] The defendant bears the onus to prove justification for the
arrest. The factual evidence of the defendant as to who
decided to arrest is unreliable, and stands to be rejected.
Apart from that, neither Qubushane nor Moteka was aware
36
of the test to be applied for an arrest without a warrant.
There motive was to arrest because a person had died.
It is not possible to determine whether there was a
reasonable suspicion, because one does not know whose
suspicion to assess. Qubushane was the senior officer who
probably took the decision to arrest. He testified that when he saw
the docket there was not a sufficient basis to arrest.
The docket as at 3 April 2002
[98] At the time when the arrests of Steenbergen, Cilliers and
De Beer were made on 3 April 2002, the docket contained
the following information:
i) The statement by Mzolo, who was assaulted and
died on 27 March 2002. (He would therefore not be
available as a witness). He stated that a number of
persons chased him and assaulted him, and one of
them hit him on the head with a garden fork. He
became unconscious and woke up in hospital. He
mentions no names
ii) Mokgo Neria Masilo , a male nurse at the hospital.
He states that Meyburg and De Beer offloaded
37
Mzolo at the hospital. They told Masilo that they
found the unknown man next to the road, he was
seriously injured.
iii) Daniel Buti Mofokeng : On 2 November 2001 he saw
Mzolo being assaulted by men. De Beer was there.
iv) Puseletso Abram Motloung : On 2 November 2001
Mzolo took a fishing net under a tree. They were
fishing. A bakkie arrived, and men got out of it and
pulled the net, which then broke. They took the net
and ran away, but the bakkie chased them. He will
be able to recognise a person who arrived there in a
Camry motor car, but will not be able to point out
any other person.
v) Michael Nhlapo : He was fishing on the other side to
where Mzolo was. There were five persons drinking
beer, they arrived in a bakkie. One of them pulled
Mzolo's net. At that stage Cilliers was in the water
swimming in a tube. Mzolo won the tugof war for
the net, and put it in a plastic bag. Cilliers got out of
the water and chased Mzolo and the other man.
38
The other men shouted to Cilliers that he must
shoot. They got into their vehicles and chased
Mzolo. The witness knows Cilliers very well. He
will also be able to identify the other men.
vi) Elizabeth Mathapelo Mofokeng : On 2 November
2001 she saw a person being chased. She saw a
bakkie and persons drinking beer. She later heard
it was Mzolo who was being chased. There were
about six persons who assaulted Mzolo, and one of
them hit Mzolo with a garden fork. Two of them
picked him up and dropped him on the ground. She
mentions no names and does not say whether she
will be able to identify any person.
vii) Myburgh : A witness statement was taken from
Myburgh on 30 March 2002. He states that on 2
November 2001 he and De Beer, Cilliers and
Steenbergen were at the river. Cilliers chased a
man on foot, De Beer and Steenbergen drove in the
bakkie. The man that Myburgh was chasing got
away. Myburgh went to the bakkie. When he got
39
there Mzolo was on the back of the bakkie. They
drove to the hospital where they left him.
[99] The arresting officers arrested the three persons whose
names are mentioned in that statement, possibly because
their names appear there. However, that is not Moteka's
evidence. He said on the night of 2 April 2002 he decided
to arrest all the plaintiffs. He did not arrest those who were
on leave and those he could not find. He never said he
only wanted to arrest these three, because Myburgh's
statement gave rise to a reasonable suspicion of their guilt.
The defendant bearing the onus to justify the arrests, it can
only be inferred that the arrests were done with an
improper motive.
[100] The test is objective, and there was not a basis for a
reasonable suspicion to justify the arrests. Two factors
influence this view:
(i) The constitutional rights;
(ii) The manner in which the arrests were effected.
Further, the fact that the plaintiffs were detained at Qwa Qwa
40
shows the real intent which came out during the evidence of
Moteka: the true object of the arrests was to obtain
statements. There was not objectively a basis for a
reasonable suspicion from the evidence. All that they had
was evidence of the persons having been there, and Mzolo
having been assaulted. On that basis there was no reason
to arrest all the plaintiffs without a warrant. The detention at
Qwa Qwa shows that there was an ulterior motive with the
arrests. This is also indicated by the fact that Moteka never
even considered to apply for a warrant.
[101] Standing Order 341 of 13 September 1999 to which
Qubushane was also referred states as follows:
¡°Arrest constitutes one of the most drastic infringements of the
rights of an individual. The rules that have been laid down by the
Constitution, 1996 (Act No. 108 of 1996), the Criminal Procedure
Act, 1977 (Act No. 51 of 1977), other legislation and this Order,
concerning the circumstances when a person may be arrested and
how such person should be arrested, must therefor be strictly adhered
to.
Any reference in this order to “reasonable suspicion/grounds”
must be interpreted to mean that a person will have
41
‘reasonable suspicion/grounds’ to believe or suspect
something or that certain action is necessary if:
a) he or she really believes or suspects it;
b) his or her belief or suspicion is based on certain facts
from which he or she had drawn an inference or
conclusion; and
c) any reasonable person would, in view of those facts, also
have drawn the same conclusion.
...
There are various methods by which an accused’s attendance
at a trial may be secured. Although arrest is one of these
methods, it constitutes one of the most drastic infringements of
the rights of an individual and a member should therefore
regard it as a last resort.
...
A member, even though authorised by law, should normally refrain from
arresting a person if
(a) the attendance of a person may be secured by means of
a summons as provided for in section 54 of the Criminal
Procedure Act, 1977; or ...
....
As a general rule, the object of a arrest is to secure the
attendance of such person at his or her trial. A member may
not arrest a person in order to punish, scare, or harass such
person.”
42
[102] The starting point is a reasonable suspicion that a person
has committed a schedule 1 offence. However, further
investigation may be required before it will be possible to
determine whether the suspects should be charged. Then
arrest can only be made if the police official has reasonable
grounds to believe that the investigation will be hampered
should the person not be arrested (Standing Order 341
paragraph 4(2)(a)). It was not the respondents’ case that
the arrests were made with a view to assist with the
procedure of further investigation.
[103] The Constitution places a high premium on freedom.
Arrest should only be used as means to bring a suspect
before court as a last resort, as is set out in the document
headed: "Instructions relating to the arrest and detention of
suspects" from the National Commissioner of the South
African Police Service, dated 18 May 2005, where the
following is stated:
"6. There are various methods by which an accused's
43
attendance at a trial may be secured. Although arrest is one
of these methods, it constitutes one of the most drastic
infringements of the rights of an individual and should
therefore be regarded as an absolute last resort. It is
expected of a member to always exercise his or her discretion
in a proper manner when deciding whether the presence of a
suspect at his or her trial should be secured through an arrest
or can be ensured in another manner.
7. A member, even though authorised by law to arrest a
person, should normally refrain from arresting the person if
(a) the attendance of that person at his or her trial may be
secured by first completing the investigation and referring
the docket to the public prosecutor to issue a summons
as provided for in section 54 of the Criminal Procedure
Act, 1977; or ..."
[104] In the letter the National Commissioner quotes from the
judgment of Bertelsmann J in LOUW AND ANOTHER V
MINISTER OF SAFETY AND SECURITY AND OTHERS
2004 TPD case No 8835/03:
"What these statements mean is that the police are obliged to
consider, in each case when a charge has been laid for which
44
a suspect might be arrested, whether there are less invasive
options to bring the suspect before the Court than an
immediate detention of the person concerned. If there is no
reasonable apprehension that the suspect will abscond, or fail
to appear in Court if a warrant is first obtained for his/her
arrest, or a notice or summons to appear in Court is obtained,
then it is constitutionally untenable to exercise the power to
arrest."
[105] Section 40(1)(b) has to be interpreted in the light of the
Constitution (Constitution 39(2)). Even if I am wrong in my
finding that there was not a reasonable suspicion to arrest,
the arrests were unlawful because they constituted an
unnecessary intrusion on the liberty of the plaintiffs. This is
especially so because the plaintiffs were not immediately
taken to court and allowed to apply for bail. On the
evidence there was no fear that the plaintiffs would flee or
interfere with state witnesses. The death of Mzolo
occurred three months after the alleged assault, and
causality did pose a problem, yet no medical substantiation
as to cause of death was obtained. There was no need for
the haste with which the arrests were made. The demands
45
of a Constitutional state must be taken into account when
applying the general test set out by Schreiner JA in TSOSE
V MINISTER OF JUSTICE AND OTHERS 1951 (3) SA 10
(A) at 17GH. See RALEKWA V MINISTER OF SAFETY
AND SECURITY 2004 (2) SA 342 (T) par [12], LOUW AND
ANOTHER V MINISTER OF SAFETY AND SECURITY
AND OTHERS (TPD case 8835/03 dated 6 December
2004), and see the support for RALEKWA in Juta's Annual
Survey of SA Law (2004).
[106] The evidence shows that section 40(1)(b) was not applied
in compliance with constitutional values, thereby making
the arrests unlawful.
[107] The question arises, what about the arrests on the 5 th of
April and that of Van Zijl on the 8 th of April 2002? At that
stage statements had been made by the arrested persons
which possibly created a reasonable suspicion and a prima
facie case.
46
[108] However, it would be wrong to allow defendant to rely on
evidence it obtained as a result of its wrongful conduct in
arresting and detaining the first three plaintiffs. A person
cannot justify wrongful conduct by means of information
acquired through other wrongful conduct.
The arrest and detention of all the plaintiffs was unlawful.
II Malicious prosecution:
[109] In order to succeed in an action for malicious prosecution the
plaintiff must prove that the defendant:
(a) set the law in motion;
(b) acted without reasonable and probable cause; and
(c) was actuated by an improper motive (malice).
See PRINSLOO AND ANOTHER v NEWMAN 1975 (1) SA
481 (A) at 491 G – H.
In order to succeed the plaintiffs must show that the
defendant was actively instrumental in the prosecution
(WATERHOUSE v SHIELDS 1924 CPD 155 at 160).
[110] In this case the DPP decided to prosecute De Beer,
47
Cilliers, Steenbergen, Myburgh and Hills and declined to
prosecute Van Zijl. The case against Meyer was
apparently withdrawn earlier. This is recorded in a letter of
the DPP dated 6 August 2002. There was no evidence to
suggest that any one of the defendant’s witnesses or any of
the defendant’s employees actively associated himself with
the prosecution or pressed for a prosecution. This claim
cannot succeed.
III Defamation:
[111] The allegations of defamation flow from the arrests of the
plaintiffs. A separate cause of action has not been made out on
the evidence before me. The events complained about can be
considered by the court dealing with the quantum for the claims for
unlawful arrest and detention.
Costs:
[112] By far the most time in the hearing was spent on the claims
of unlawful arrest and detention – probably 90%.
The most equitable order would be that the plaintiffs are
entitled to 75% of their costs in respect of these
proceedings.
48
Finding and Order:
[113] 1. The arrest and detention of all the plaintiffs was
unlawful.
2. The plaintiffs’ claims for malicious prosecution and
defamation are dismissed.
3. Defendants are ordered to pay 75% of the plaintiffs’
costs to date.
______________
A. KRUGER, J
On behalf of the Plaintiffs: Adv. M. P. van der Merwe
Instructed by:
Lovius Block Attorneys
BLOEMFONTEIN
On behalf of the Defendant: Adv. S.V. Notshe SC
Instructed by:
State Attorney
BLOEMFONTEIN
/em
49