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1985
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[1985] ZASCA 12
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Peer v Minister of Police (321/82) [1985] ZASCA 12 (28 March 1985)
OMAR F PEER
APPELLANT
and
MINISTER OF POLICE
... RESPONDENT
Case No. 321/82 mp
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE
DIVISION)
In the matter between:
OMAR F PEER
Appellant
and
MINISTER OF POLICE
Respondent
CORAM:
JANSEN, ACJ, JOUBERT, VILJOEN , HOEXTER et HEFER, JJA
HEARD:
7 March 1985
DELIVERED
: 28 March 1985
JUDGMENT
Hoexter, JA,
In the late afternoon of Thursday 6 March 1980
five
2.
five members of the South African Police in plain clothes entered a
two-roomed flat in Vrededorp, Johannesburg, conduc= ted a search
therein and
removed certain goods therefrom. The flat was the home of an attorney, Mr Omar
Farouk Peer, the appellant in this appeal.
The appellant conducted his practice,
which consisted mainly of criminal work, from an office in Marshalltown. During
the Rand Easter
Show the appellant also ran a restaurant at the showgrounds. The
appellant lived at the flat with his wife, to whom I shall refer
as "Mrs Peer".
I shall refer jointly to the appellant and Mrs Peer as "the plaintiffs". Also
living at the flat was Mr Abdool Peer,
a nephew of the appellant. For the sake
of brevity I shall refer to the nephew by his first name. Abdool was an articled
clerk in
an accountant's office and a university student.
When the police entered the flat and began their search only Abdool was at
home. The plaintiffs
arrived
3.
arrived soon afterwards, however, whereupon an alterc took place between the
appellant and one or more of the policemen. The upshot
of the matter was that
the police arrested both plaintiffs and removed them to the Jepp Street Charge
Office where they were detained
in the for some hours before being released.
Following the events aforementioned the tiffs (each in his or her own right)
sued the Minister Police, the respondent in this appeal,
for damages. their
particulars of claim the plaintiffs alleged that had been dealt with unlawfully
by the policemen conerned and
that the latter were servants of the respondent a
at the time within the course and scope of their employment Each plaintiff
claimed
damages in respect of (1) alleged unlawful entry of the flat and seizure
of goods and (2) alleged unlawful arrest and detention.
There was a
further
alleged.....
4.
alleged assault upon him by the police. This claim was not pressed at the
trial. The plaintiffs' claims were resisted by the respondent.
The trial Judge
(MELAMET, J) gave judgment in favour of Mrs Peer in respect of her claim for
unlawful arrest and detention of her
person for which she was awarded damages in
the sum of R2 500. Absolution from the instance was ordered on all the
appellant's claims
against the respondent. The respondent was ordered to pay 60%
of Mrs Peer's costs. The appellant appeals against the trial Court's
order of
absolution in respect of the appellant's claims described in (1) and (2) above.
On behalf of the appellant it is contended
that in respect thereof the trial
Court erred in not granting judgment with costs in favour of the appellant.
The background to the police search of the plaintiffs' flat on 6 March 1980
may be shortly sketched. In Charlton Terrace, Doornfontein,
Johannesburg,
there
lived
5.
lived a man called York who, according to the evidence adduced at the trial
on behalf of the respondent, was a buyer of stolen property
such as jewellery,
television sets, crockery and cutlery. Such stolen goods were sold to York at
the aforementioned address by, among
others, two young housebreakers and thieves
named Douglas and Rathbone, former fellow-inmates of a reformatory, who were
working
in league. In due course the law caught up with Douglas and Rathbone.
They were arrested, tried and convicted on some sixteen counts
of housebreaking
and theft. In such criminal proceedings the appellant acted as the attorney for
Douglas and Rathbone and the appellant
was paid for such services by York. After
their arrest but before they stood trial, Douglas and Rathbone co-operated with
the police
and pointed out to the police not only the houses where they had
committed their crimes but also certain addresses where they had
disposed of the
goods so stolen
by
6. by them. One such address was that of York in Charlton Terrace. At
the time Major J C de Klerk was the officer in charge of the
C I D at the Jeppe
Police Station. the strength of the disclosures made to the police by Douglas
and Rathbone, Major de Klerk caused
York's home Charlton Terrace to be kept
under observation and the movements of people going to and from the said address
be noted.
The policeman primarily responsible for such surveillance was Det Sgt
P J Cronje, but watch was kept various members of the Force
including Cronje
himself, (later Major) Labuschagne, two Detective Sergeants res named Enambiya
and Schoeman, and constable Mohale.
were suddenly brought to a head when Sgt
Schoeman reported to Major de Klerk his belief that some of the persons so
observed had
become aware that the police were following them. This development
caused de Klerk to issue an instruction to the policemen concern
to carry out
searches at the various addresses. The entry
into....
7.
into and the search of the appellant's flat took place pursuant to the
instruction so given by Major de Klerk. The five policemen
who entered and
searched the appellant's flat were Det Sgt Cronje, Det Sgt Nagel, Det Const
Schoeman and two constables named Whitehead
and Parsons. Nagel had not taken any
part in the surveillance carried out at York's home but he was the senior police
officer of
the party who entered and searched the flat.
In his plea the respondent raised the following defences to the claims of the
plaintiffs. In response to the claims based on the entry
into the plaintiff's
flat and the seizure of their goods, the respondent denied that the entry was an
unlawful one. The respondent
alleged that permission so to enter had been given
to the policemen concerned by Abdool. In the alternative, so ran the
respondent's
plea:-
"5.2.2. The
8.
"5.2.2 The said five policemen, on reasonable grounds and
bona fide
,
believed that:
5.2.2.1 the crime of theft or of con=
travening section 36 or 37 of
Act 62 of 1955 was being committed or would probably be committed or that
arrangements for the commis= sion of such crimes were made
in the said premises;
and
5.2.2.2 goods which could lead to the proo
of or which were contemplated
to
be used in the commission of the
said crimes were kept in the
said
premises;
and
5.2.2.3 a warrant, as contemplated in
section 25(1) of Act 51 of
1977
(as amended), would have been
issued if applied for;
and
5.2.2.4 the delay caused by an application
for such warrant would
have
defeated the purposes thereof."
For the reasons set forth in paragraph 5.2.2 of the plea, quoted above, the
respondent likewise pleaded that the seizure of the plaintiffs'
goods had been a
lawful seizure
in
9. in terms of Act 51 of 1977.
Affecting paragraph 5.2.2 of the respondent's plea the plaintiffs requested
the following further parti= culars:-
"(a) Did each of the said policemen so believe? If not, which of them had
such belief?
(b)
What were the said grounds?
Full parti= culars are requested of the factual basis for the belief and the
inferences to which it gave
rise.
(c)
Upon
what grounds was it believed that a delay would have defeated the purpose of
such warrant?"
In response to the above request' the
respondent answered as
follows:-
"(a) Each of the policemen did so believe.
(b) A certain Douglas and Rathbone were
'engaged' in a wave of housebreaking and were bringing stolen property to the
home of one York, obviously for distribution.
The police kept surveillance on the place of abode of York and noted who were
frequent visitors to this address which is in Doornfontein.
One
10.
One such frequent visitor was the First Plaintiff (the appellant).
(c) On the 6th day of March late in the after= noon the police became aware
of the fact that the said York had realised that he was
being kept under
surveillance.
It was therefore realised that the homes
of all suspects should be immediately searched
before the stolen goods would be removed."
In response to the claims based on the arrest and detention of the plaintiffs
the respondent pleaded that such arrest and detention
had been lawful for the
following
reasons:-
"8.2.1 The said policemen were peace officers as contemplated in section 40
of Act 51 of 1977 (as amended);
and
8.2.2 The said policemen, on reasonable grounds
and
bona fide
,
suspected the Plaintiffs
of having committed the First Schedule
offence of
theft.
Alternatively
8.2.3 The Plaintiffs were in possession of the
said goods which the said
policemen on
reasonable grounds believed to be stolen
property
11.
property or goods obtained in a dishonest manner and the said policemen on
reasonable grounds suspected the Plaintiffs of having committed
the crimes of
theft or contravention of sections 36 or 37 of Act 62 of 1955 in respect
thereof."
Affecting paragraph 8.2.2 of the respondent's plea certain further
particulars were sought and furnished. The appellant wished to
know which of the
policemen had suspected the plaintiffs of having committed theft and on what
grounds they had formed the suspicion.
The respondent replied that each
policeman had so suspected. As to the grounds for the suspicion the respondent
repeated his earlier
averments (already quoted above) in regard to Douglas,
Rathbone and York and the appellant's frequent visits to York's home. In
addition
thereto the respondent set forth as grounds for the suspicion
that:-
"(i) there
12.
" (i) there was a television set in the
bedroom which had no aerial and no plug;
(ii) under the bed there were 8 cardboard boxes which could not be seen save
by getting right down to look under the bed. The contents
were stainless steel
teapots, coffee pots,sugar pots, milk jugs, gravy holders, salt and pepper pots
and one whole cardboard box
full of knives and forks.
These were far in excess of the normal
requirements of a household and were
very suspiciously hidden away and were
not being used;
(iii) the suspicions were aggravated by the fact that no explanation for the
possession was forthcoming and was in fact on direct
questioning refused."
So much for the pleadings as amplified by particulars. I turn to the
evidence. At the trial Abdool, Mrs Peer and the appellant testified
in support
of the plaintiffs' claims. On behalf of the respondent the following witnesses
were called: Warrant-officer (formerly
Sergeant) Cronje; Det Sgt (formerly
constable) Schoeman; Douglas; Rathbone; Major de Klerk; Major (formerly Captain)
Labuschagne;
and
13. and Det Sgt Nagel. In the judgment of the Court below the
testimony of each and every witness in the case is set forth
in great detail. It is unnecessary to do so again in the
judgment of this Court. For the purposes of the appeal it
will be enough
to indicate in very broad outline some of
the more significant parts of the
evidence.
At the time when the police were keeping their
watch on York's house the
appellant was the driver of a beige
BMW motor car ("the BMW") with the
registration number NGL 1231.
The BMW was registered not in the appellant's
name but in the
name of one Moolla who lived in Glencoe. Cronje told the
trial
Court that he noticed the BMW at York's house on a number
of
occasions. A grey Volkswagen motor car was seen regularly at
York's
house and was often followed by the police. On one
occasion, so testified
Cronje, he followed the Volkswagen to the
appellant's address. There were
four people in the car, inclu=
ding the appellant. The appellant was not then
known to Cronje.
The Volkswagen stopped at the appellant's address where
the
appellant alighted from the car. According to Schoeman he saw
the
appellant at the same address on two or three occasions.
Douglas ......
14. Douglas testified that upon his discharge from a reformatory he was
introduced to York and that he joined a gang of criminals
who stole and sold stolen goods to York. According to
Douglas he went regularly to York's home. On two or three
occasions he had seen the appellant at York's house; but he had not been
introduced to the appellant. On this part of the case
the appellant in his evidence told a very different story. He
told the
trial Court that so far from visiting it he did not
even know where York's
house was; and therefore, so said the
appellant, the BMW was never at York's
house.
The incoming reports of the policemen keeping
observation at York's house
were collated by Captain
Labuschagne who was the second-in-command of the
Jeppe Police
Station. Cronje was the investigating officer in the case
against Douglas and Rathbone. Major de Klerk instructed Cronje
to take statements from witnesses with a view to applying for a search
warrant when the need therefor should arise. When Schoeman
reported to de Klerk
his suspicion that the persons being observed had become aware of this fact de
Klerk decided
that time was of the essence. De Klerk was an experienced
officer I
who
15.
who had been in the Police for thirty years. In his evidence in chief he
described his state of mind and the reasons prompting his
decision to order
immediate searches in the following words -
"Het u ondervinding in die tyd opgedoen ten
opsigte van die handelswyse van ontvangers
van gesteelde goedere? - Ja, Edele, ons
weet dat volgens Wet moet jy horn in besit kry
Nou, toe sersant Schoeman nou sê dat die
mense het nou bewus geword dat hulle onder observasie gehou word, het ek toe
almal bymekaar geroep en ek het toe besluit dat aangesien
dit nou duidelik is
dat hulle van ons observasie bewus is, en omdat ek bang was dat hulle van die
gesteelde eiendom wat ons vermoed
het, hulle besit, kon verwyder, het ek toe
opdrag gegee dat ons onmiddellik die verskillende adresse moet besoek en
deursoek en dan
kyk of ons gesteelde eiendom kry.
As u byvoorbeeld sou gewag het om 'n lasbrief in die hande te kry, wat,
volgens u mening, sou
gebeur het? - Wel, dit was laat in die middag en
dit sou definitief baie tyd geneem het om op daardie stadium 'n lasbrief te
bekom. Dan sou dit die doel van deursoeking heeltemal
belemmer het.
Hoekom? - Omdat hulle dan genoeg tyd sou
gehad het om die gesteelde eiendom te verwyder."
Turning
16.
Turning from the events leading up to Major de Klerk's instruction that the
appellant's flat be searched to the search itself, there
is, save in one minor
respect, no dispute as to the nature and condition of the goods found by the
police in the flat. Under a bed
in the front room of the flat the police
discovered eight cartons full of crockery and cutlery. In the next room there
was found
a portable television set. The dispute relates to whether or not the
television set was in regular use at the time. Abdool and the
plaintiffs claimed
that the television set was in daily use. The policemen, and more particularly
Schoeman, who carried the set away,
testified that its electric cord was not
fitted with a plug and that the set was covered in dust. A more fundamental
conflict is
presented by the rivalling versions of the plaintiffs and Abdool on
the one hand, and on the other hand that of the policemen, as
to the
circumstances surrounding the search,
and
17.
and more especially in regard to the issues (1) whether Abdool gave his
permission to the search; (2) what was said or not said by
the plaintiffs and
the policemen respectively; and (3) in what manner the appellant comported
himself.
Abdool denied that he gave the policemen permission to search the flat. In
the judgment of the Court
a quo
the effect of the police testimony on
this issue is accurately summed up in the following words -
".. the aggregate of the evidence on behalf of the defendant is that the said
Abdool Peer did not actively object to the searching
of the flat, although he
was unhappy about the said conduct."
According to Abdool one of the policemen told him that they were detectives
and that they were looking for stolen property. This was
said to him before the
arrival of the appellant. The evidence shows that at a stage in
the
18.
the search after the police had discovered the eight cartons under the bed in
the front room, Mrs Peer entered the flat. At that juncture
the appellant was
reading a newspaper outside the flat in the car in which the plaintiffs had come
home. Abdool said that he went
down to the car and reported to the appellant
that some white people were searching the flat, but that he could not recall
whether
he told the appellant that the searchers were detectives and that they
were searching for stolen property. Upon the entry of Mrs
Peer into the flat,
and in response to a request by the police, Mrs Peer handed over to them the key
of her wardrobe in order that
they might examine its contents. The police
thereupon searched the wardrobe and removed her belongings therefrom. Mrs Peer
testified
that the policemen told her that they were looking for stolen goods;
but she added that she omitted to convey this information to
the appellant when
he came into the flat very shortly afterwards. When the police were removing the
television
set,
19.
set, so Mrs Peer said in her evidence, she told the: she had an invoice for
the set but that the invoice Glencoe. She maintained further
that she explained
police that the crockery and cutlery in question ha, bought for use at the Rand
Show; and that they had in respect
of these goods. On the other hand Cronje the
trial Court that when he had asked Mrs Peer for explanation in regard to the
property
found by the police she had referred them to the appellant, saying "Ask
husband - these are his goods." Nagel's evidence was to the
same effect. Cronje
denied that Mrs Peer said goods in question had been bought for use at the
Rand
According to the appellant he was summoned from his car outside the flat by a
shout from Abdool he got to the doorway of the front
room of the flat found
Cronje. Cronje informed him "that he's the police
and they're searching the
flat". The appellant says he
reacted...
20.
reacted to this information by asking Cronje whether the police had a search
warrant and whether he could produce proof of his identity
as a policeman. What
happened then was described by the appellant in his evidence in chief in the
following words:-
"He (Cronje) was in the process of taking out his identity document from his
shirt pocket, when somebody from the next room rushed
me, rushed from the next
room and pushed me out of the doorway, gripped my arm at the back and virtually
carried me down, out of
the courtyard, down the stairs and into a yellow police
van, beige I think it was. whilst I was being taken down, I was being hit
in the
back, I was being punched in the back."
In cross-examination it was put to the appellant that Cronje had tried to
tell him that they were looking for goods suspected to have
been stolen, but
that the appellant had simply shouted him down by repeatedly demanding
production of a search warrant. The appellant
denied this. He further said that
he had been quite calm when he was
frog-marched
21.
frog-marched down the stairs. Abdool likewise testified. that the appellant
never shouted or screamed; and that as far as he (Abdool)
knew, the appellant
was not asked by the police for an explanation in regard to the cutlery. Abdool
also said that when the appellant
inquired whether Cronje had a search warrant
one of the men in the search party rushed out, punched the appellant on the
back, and
carried him away. According to Mrs Peer the police simply refused to
listen to the plaintiffs. She told the trial Court that when
the appellant asked
the police to produce a search warrant and to identify themselves "they just
held him and pushed him down the
stairs." The police hit the appellant on the
back "and they didn't give him a chance to talk or anything."
In his evidence Cronje said that the contents of the cartons were similar to
the stolen goods involved in several of the cases concerning
Douglas and
Rathbone
investigated
22.
investigated by him. The condition of the television set and the
cartons concealed under the bed led him to suspect that these were
stolen
property. Upon the appellant's arrival at the flat, so testified Cronje, the
appellant was hostile and aggressive. The appellant
began by shouting at the
police. When Cronje produced his certificate of appointment the appellant
brushed it aside as being meaningless
and demanded a search warrant. The
appellant said that he was an attorney and that he was not prepared to produce
any documents.
When Cronje told the appellant that if he failed to give an
explanation for his possession of the goods in question he would have
to arrest
the appellant, the latter said "Do what you like". According to Cronje, Nagel
came from outside to support him. Nagel said
that he was going to arrest the
appellant because he could not explain his possession of the goods.
According
23.
According to Nagel the position of the cartons under the bed led him to
suspect that their contents were stolen property. Upon the
appellant's arrival
he shouted in rage and demanded the production of a search warrant from Cronje.
When the latter pointed out the
goods under the bed the appellant simply carried
on screaming. The appellant said that he was an attorney and that he would take
the matter further. Nagel further testified that he told the appellant that the
appellant and his wife were obliged to explain the
presence of the goods on
their premises, but that the appellant shouted him down. Nagel said he then
decided to arrest the appellant.
He arrested both the appellant and Mrs Peer in
the front room of the flat. The decision to arrest both plaintiffs was solely
his,
said Nagel. He arrested Mrs Peer because she could not or would not give an
explanation as to the possession of the goods. Her only
response was to say "Ask
my husband." The
appellant
24.
appellant would not walk, so testified Nagel, and accordingly he put his arms
round the appellant, carried him out of the flat and
put him in the van.
From Schoeman's evidence it appears that he played a minor role in the
search. According to him the man who took the initiative was
Nagel. From the
condition of the television set and the quantity of cutlery and crockery
discovered in the flat Schoeman said he
thought that these might have been
stolen goods. Also according to this witness the appellant displayed animosity
towards the police.
Shortly after the arrival of Mrs Peer at the flat Schoeman
went downstairs. Upon his return to the flat he heard an argument between
Cronje
and Nagel on the one side and the appellant on the other. Nagel demanded an
explanation from the appellant. Schoeman says
he saw Nagel putting his arms
around the appellant and carrying him out of the flat. He did not see Mrs Peer
being arrested.
To
25.
To complete the chronicle brief reference should be made to certain
developments following upon the arrest of the plaintiffs. To the
first of these
the appellant alone testified. The appellant told the trial Court after he had
ordered and consumed some food in the
cell, a white man in plain clothes entered
his cell and inquired of the appellant who had instructed him to act for Douglas
and Rathbone.
The appellant replied that his questioner did not have to bring
him to the cells in order to find that out. His questioner then left.
The
further developments are mainly common cause. At about 8 pm a conversation took
place between the appellant and Cronje. In the
course thereof the appellant
offered to take Cronje to his (the appellant's) office and there to produce to
him documentary proof
of the appellant's ownership of the goods found by the
police at the flat. What induced the appellant to make this offer appears
from
the following passage in the appellant's evidence in chief in which he
described
26.
described his conversation with Cronje on this occasion:-
" if I was alone here, I would have told
you: Look come and see me in the morning, but my wife is here and that's why
I'm going to now
I mean, if you want to, I will take you
to my office and I can show you the invoices and
whatever you want to know
about "
Cronje accepted the offer and shortly afterwards the appellant, Cronje and a
constable went by car to the appellant's office where
the appellant showed
Cronje various documents including two cheques drawn by the appellant in favour
of an auctioneer; and a portion
of a receipt reflecting the purchase of goods
similar to those seized during the search of the flat. In addition the appellant
produced
a written catering contract concluded between him and the Witwatersrand
Agricultural Society. From the appellant's office the party
proceeded to a shop
in central Johannesburg where the appellant pointed out certain furniture, being
portion of the goods bought
from the auctioneer aforementioned, required by the
appellant for his catering at the Rand Show. The party then
returned
27.
returned to the Jeppe Police Station. There Cronje telephoned his officer who
instructed him to release the plaintiffs. The plaintiffs
were then allowed to go
home.
Against the above summary of the main evidence in the case, and before
examining the trial Court's findings of fact, it is necessary
here to indicate
what impressions some of the chief witnesses on either side created upon the
mind of the learned Judge who listened
to and observed them. In regard to Abdool
the judgment of the Court below points out that he was a witness who not only
conceded
to harbouring feelings of hostility towards members of the S A P but
whose evidence in fact betrayed such an attitude. The trial
Court noted that in
his evidence Abdool "minimised any lack of co-operation" on the part of the
appellant. The demeanour of Mrs Peer
was not found to be unsatisfactory but the
learned Judge nevertheless noted that she had - understandably perhaps -
coloured
28.
coloured her evidence to the extent of presenting the actions of the
appellant in the best possible light. The appellant did not make
a good
impression upon the trial Court. Of this witness the learned Judge remarked that
-
".. he was loquacious and used such loquacity
to avoid or evade answering questions put to him."
And again:
" in the witness box he created the
impression of being an excitable person who would stand on what he considered
to be his rights."
Cronje, Nagel and Schoeman all impressed the trial Court
as hesitant witnesses who were lacking in candour.
Dealing first with the plaintiff's claims based on the alleged unlawful entry
into the flat and seizure of goods, the trial Court
pointed out in its judgment
that in the light of all the evidence it could hardly be suggested that Abdool
had expressly consented
to the search by the
police .
29.
police. The learned Judge found it unnecessary to consider the validity of
the defence of consent raised by the respondent. However,
on the respondent's
alternative defence to the first claim the trial Court came to the conclusion
that the respondent had proved
on a balance of probabilities -
"that Major de Klerk was justified in terms of
section 25(3) of Act 51 of 1977 in ordering
that the premises be entered and searched."
It must be borne in mind, of course, that in paragraph 5.2.2 of his plea the
respondent sought to rely not on any belief entertained
by Major de Klerk, but
on a belief alleged to have been held by each of the five policemen who made up
the actual search party. Commenting
on this feature of the case the learned
Judge expressed the following view of the matter -
"This is not the justification claimed in the pleadings, but on the other
hand, this is an issue which was fully canvassed in the
trial, and if an
amendment was sought it would have been granted."
I
30.
I pause here to say that a reading of the record of the proceedings clearly
reveals that at the trial neither side sought narrowly
to confine this part of
the case to the pleadings; and that the issue in question was in fact thoroughly
explored. In argument before
this Court counsel for the appellant wisely did not
contend that the appeal should be confined strictly to the pleadings. In
upholding
the respondent's defence based on the provisions of sec 25(3) of Act
51 of 1977 the trial Court rejected as untrue the appellant's
denial that he had
ever visited York's home. In this connection the learned Judge remarked:-
"It is stretching coincidence to breaking point that the cream BMW motor car
with the regi= stration number noted and described by
Sergeant Cronje, is that
of first plaintiff, although not registered in his name. There is the evidence
of Warrant Officer Cronje
and Sergeant Schoeman, that the car was seen at the
house of York on two or three occasions, and the witnesses are certain that they
saw the first plaintiff at the car - as also the car, outside the residence.
There is also the evidence of Douglas that he saw the
first plaintiff
at
31. at the house of York in discussion with York."
The trial Court further concluded that on the facts before them the police
had reasonable grounds for believing that the appellant's
visits to York were in
connection with the latter's criminal activities as a receiver of stolen
property.
Calling attention to the unfavourable impression of Cronje and Schoeman as
witnesses formed by the trial Court, counsel for the appellant
vigorously urged
upon us that the learned Judge had erred in that he had failed to subject to
critical examination the evidence of
these two witnesses on the crucial point
whether the appellant had ever been seen at York's house. I do not think that
the judgment
of the Court below is open to attack on this score. The blemishes
and contradictions in the testimony of Cronje and Schoeman appear
from the full
exposition of the evidence in the trial Court's judgment and need not here
be
recounted
32.
recounted. Suffice it to say that, more particularly in the case of Cronje,
his explanation of the striking similarity between his
written statement and the
written statements of other police witnesses recorded by him, and his evidence
in regard to a further document
of which he was the author and which was very
properly made available at the trial by the respondent's counsel to counsel for
the
appellant, reflect seriously upon the credibility and reliability of Cronje.
It is to be noticed, however, that Cronje's evidence
was sharply criticised by
the learned Judge in that part of his judgment dealing with the claims based on
the arrest and detention
of the plaintiffs, and it is, I think, very unlikely
that when the trial Court considered whether the respondent had discharged the
onus
of establishing the alternative defence raised by the respondent to
the claims based on entry and search of the flat, the defects
in the evidence of
Cronje and Schoeman would not have been present
to
33.
to the mind of the learned Judge. In any case the evidence of Cronje
and Schoeman in regard to the presence of the appellant at York's
house not only
gains support from the evidence of Douglas in this connection but is
significantly fortified, I consider, by the probabilities
arising from the
feature of the case to which the learned Judge alludes, namely, that the BMW was
not registered in the name of the
appellant. Cronje was nevertheless able to
supply Captain Labuschagne with the address of the man who was the driver of the
BMW.
In the course of his judgment the learned Judge observed that if the
appellant or the BMW had never been seen at the house of York
it would be
difficult to imagine a reason for the search of the flat by the police. In
argument counsel for the appellant suggested
as a possible explanation for the
search the fact that the appellant was acting as the attorney for Douglas and
Rathbone. Accepting
for the purposes of argument the truth of the appellant's
evidence as to the question addressed to him when he was in the cell at
the
Jeppe Police Station by an unidentified white person,
the
34.
the evidence as a whole, and more especially the testimony of Major de
Klerk., in my opinion excludes such an explanation as a reasonable
possibility.
Having given due attention to all the arguments advanced by counsel for the
appellant on this part of the case I am
not persuaded that the learned Judge was
wrong in concluding that the respondent had established on a balance of
probabilities that
Major de Klerk not only entertained the requisite subjective
belief in terms of sec 25(3) of Act 51 of 1977, but that such belief
was
furthermore based on grounds which were objectively reasonable.
I turn to the appellant's claim based on his arrest and detention by the
police. The trial Court ap= proached this question by considering
what sort of
goods had been stolen by Douglas and Rathbone and what sort of goods were found
by the police in the appellant's flat.
The learned Judge concluded that against
the background of facts known to the police, and in the absence of any
explanation
by
35.
by the appellant, the suspicion on the part of the police that the goods
discovered by them in the flat were stolen property was a
reasonable suspicion.
There is, in my view, no good reason for disturbing this finding by the trial
Court. I should add, perhaps,
that in my opinion the conclusion reached by the
Court below appears to be well-founded whether or not the portable television
set
found in the flat was in daily use. The learned Judge resolved this disputed
issue of fact in favour of the police. The fact that
a television set may be in
daily use, viewed in isolation, does not serve as an indication that its
possessor has come by it honestly.
However, little turns on the point. Pointing
out that the police had found eight cartons of unused cutlery under a bed in
circumstances
exciting suspicion, the learned Judge in his judgment further
remarked -
"This would have been sufficient justification of the entry into the flat and
the removal of the goods."
I
36.
I find myself in complete agreement with the above statement of the
position.
It is common cause that during his confrontation with the police in the flat
the appellant did not in fact give any account of his
possession of the goods in
question. The version of the appellant and his witnesses is that he was given no
opportunity so to explain.
The version of the police is that the appellant was
invited to explain his possession of the goods but that he obdurately refused
to
do so. The crucial question, therefore, is whether or not the appellant was
asked to give an account of his possession of the
goods.
Mention has already been made of the fact that in dealing with this part of
the case the Court
a quo
was critical of Cronje's qualities as a witness.
Having cited examples of the defects in Cronje's evidence the learned
Judge
37.
Judge proceeded to comment adversely on the testimony of four of the other
main characters involved in the search of
the flat -
"Criticism can, with justification, be levelled also against the evidence
given by Sergeant Nagel and Sergeant Schoeman. Criticisms
can be levelled with
justification against the evidence of first plaintiff (the appellant) and Abdool
Peer."
Bearing in mind the poor calibre of these five witnesses
and the natural
proclivity of Mrs Peer to present the conduct
of the appellant in a
favourable light, it is not a matter for
surprise that the trial Court sought
to answer the question
whether or not the appellant had been asked by the
police to
give an account of the goods by an appraisal of the
proba=
bilities in the case. The learned Judge's assessment of
the
probabilities is reflected in the passages from his judgment
quoted below
-
"It is contended that in view of the fact that the first plaintiff (the
appellant) was in a
position
38.
position to give a satisfactory account of his possession of the articles,
that it is highly improbable that he was given the opportunity
to explain the
presence of such goods. This might well be, but on the other hand, on his own
evidence he only agreed to give an explana=
tion as to the ownership of the
goods later that night because his wife had been incarcerated and he felt bad
about her being detained
in prison.
Another factor against the police not having given the first plaintiff (the
appellant) an opportunity of explaining the presence of
such goods, is the fact
that both Abdool Peer and second plaintiff (Mrs Peer) were admittedly asked for
an explanation. It is common
cause that this was the position, and if it was
done in their case, why was it not done in the case of first plaintiff (the
appellant)?
The probabilities would appear to be in favour of the version of the
policemen, that first plaintiff (the appellant) did not give
the policemen an
opportunity of having a discussion with him, but that he shouted them down in
demanding what he considered to be
his rights, the production of a search
Warrant."
And again:
" I am of the opinion that the probabilities
favour the version of the policemen, that first plaintiff (the appellant)
came into the flat in
an
39.
an aggressive frame of mind, determined to demand and get production of a
search Warrant, and in pursuit of this aim, was not prepared
to co-operate with
the policemen. He did not have regard to the provisions of Section 36 of Act 62
of 1955, and in the course of
his evidence in this court, professed to not
knowing that failure or neglect to furnish a reply was in itself an offence.
The probabilities are that first plaintiff (the appellant) was so incensed,
and so wrapped up with his demand for the production of
a search Warrant that he
overlooked the conse= quences of failing to reply to the questions of the South
African Police. The probabilities
are that he refused to communicate with them
until they had produced a search Warrant."
On behalf of the appellant it was submitted that the police version as to the
alleged shouting by the appellant was an inherently
improbable one. An important
factor, however, in the assessment of the probabilities in regard to the
appellant's reaction to the
police search is the whole personality of the
appellant. Quite apart from the evidence of the policemen a perusal of the bare
record
of appellant's
own
40.
own evidence in the Court below conveys an impression that he is an impetuous
and volatile individual much given to garrulity. In
the estimation of the trial
Judge, by whose impressions as to the demeanour of the appellant we must also be
guided, the appellant
was an excitable person likely to stand on what he
considered to be his rights. Having regard to the particular sort of individual
that the appellant would appear to be and bearing in mind the particular
circumstances in which the appellant found himself at the
time of the police
search, the argument that the police version of his unruly and vociferous
behaviour runs counter to the probabilities
cannot, in my opinion, be sustained.
Then it was said that the appellant's version was rendered more probable by the
fact that at
the time of the search Nagel believed that a search warrant had in
fact already been obtained. . In my view this fact is not really
helpful in
deciding whether or not the appellant was asked by the police to give an account
of his possession of the goods in question.
It
41.
It was further contended in argument that an inference adverse to the
respondent should be drawn from his failure to call as witnesses
the remaining
two members of the search party, Constables Parsons and Whitehead, who were
available and had in fact been present
at Court during the trial. In all the
circumstances of the present case it does not seem to me that any inference
adverse to the
respondent should be drawn from such failure. The respondent
called to testify on the issue in question the three senior policemen
in the
party, one of whom was the policeman who had taken the decision to arrest the
appellant and Mrs Peer. In my opinion the respondent
was entitled to rest his
defence to the plaintiffs' claim on this part of the case upon evidence which he
considered adequate to
enable him to discharge the burden of proof which he
bore.
The trial Court in my view correctly held that the appellant was found in
possession of goods reasonably
suspected
42.
suspected of having been stolen. If the appellant was required to give an
account of his possession and he refused to do so then Nagel
was legally
entitled to arrest and detain him. On appeal all the findings of the learned
Judge in respect of this part of the case
were subjected to minute and critical
scrutiny. Notwithstanding the full argument addressed to us by counsel for the
appellant I
remain unpersuaded that the trial Court erred in dismissing also the
appellant's claim based on his arrest and detention.
The appeal is dismissed with costs including the costs of two counsel.
G G HOEXTER, JA
JANSEN, JA )
JOUBERT, JA ) concur
VILJOEN, JA )
HEFER, JA )