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[1] The trial in this matter was originally set down for 4 days. A fter an attempt
to postpone same the trial eventually took off on 10 October 2024 and ran
till 18 October 2024 whereafter it had to be postponed to be heard at the
end of term from 9 December 2024 onwards. The reason for the
postponement to 9 December 2024 was the fact that the court infrastructure
could not cope with the immediate continuation of the matter. On 10
December 2024, all evidence was completed and judgment reserved whilst
the parties undertook to file heads of argument by 09h00 on 11 December
2024 but the d efendants counsel could only file their heads of argument
late on 11 December 2024 seeking condonation for filing same late, on the
basis that they underestimated the task. I can see no prejudice to the
plaintiff in condoning same and such order will follow .

[2] The plaintiff will for the sake of convenience be referred to as “Masente”
and the defendant as the “Minister” or “SAPS” as may be convenient.
Masente testified on his own behalf and only called one witness W/Officer
Hlongwane. The Minister called 3 witnesses Cst Rampaeri, Cst Thabethe
and Warrant Officer Lapane an expert in explosives. I will deal with their
evidence below.

The Defendant’s Pleadings and attempts to postpone the matter

[3] Masente sued the Minister for wrongful arrest and detention without lawful
reason and without a warrant having allegedly sold and distributed liquor in
contravention of the Disaster Management Regulations on 1 January 2021
and allegedly having been found in possession of explosives . SAPS is
alleged to have arrested him as aforesaid acting in the course and scope of their duties. He was allegedly detained for approximately 52 hours . The
prosecution declined to prosecute him under the Disaster Management Regulations (on the basis that there was no proof that he was selling liquor)
and he was ultimately charged with the contravention of certain sections of the Prevention and Combating of Corrupt ion Act 12 of 2004. A fter several
appearances in the Benoni Magistrate’s Court the matter was withdrawn. With regard to the latter he claimed that he suffered damages in the amount
3
of R180 000 including loss of dignity, shock and discomfort. This claim was
settled by the Minister’s representatives for an amount of R130 000 despite
the plea in denial and a Court order was made in accordance w ith the
settlement on 10 October 2024.
[4] In addition Masente claim d amages in the amount of R450,000. He
allegedly for security purposes kept monies and expensive stoc k of liquor
(in respect of his father’s business conducted at 1849 Sataba Street in
Daveyton and two o ther premises ) at his residence. At the time of his arrest
members SAPS allegedly removed R450 000 from his house during a raid
of which only R45 000 was booked into the SAPS 13 e xhibit register and
later returned to him. He laid charges of theft and corruption at the Daveyton
police station against the SAPS officers who were involved in his arrest and
the appropriation of the money. It would appear that these charges came to nought. An amount of liquor was also found at his residential address
which SAPS allegedly destroyed but it later transpired that same was not
returned to him. He lodged no claim in respect of the liquor.

[5] When the matter came before me on 8 October 2024 the Minister’s legal
representative had already filed a notice of motion supported by an affidavit
deposed to by Mr MA Lekal a for an application for a postponement sine die .
I should point out that the heading incorrectly refers to Masente as the applicant whilst the Minister was actually the applicant and Masente the
respondent. In the body of the affidavit there is a general reference to
annexures which were never annexed.

[6] Mr Lekal a describes himself as a Legal Admin Officer with his principal
office at Benoni SAPS. Although he is housed at the SAPS Regional office
(Johannesburg) he is responsible for all local police stations within
Johannesburg including the Daveyton police station. He deals with volumes of dockets on a manual basis. He also explains that SAPS is inundated with
a “plethora of summons” issued on a daily basis.

[7] The police officers In these matters are housed at different police stations
and are often assigned to various crime prevention projects which require
4
them to be on the ground outside police stations. As a result it becomes a
mammoth task to have them available for consultations and/or court
attendances due to high pressure work demands which is target driven.
[8] He states that it is almost practically impossible to get hold of relevant police officers swiftly in litigious matters for consultations and that when a request
for a consultation is made on short notice as was the case in the present
matter this task is even more difficult.

[9] Prior to him dealing with the aforesaid request the State Attorney was
dealing with the matter and after 3 quotations were obtained from counsel
in order to determine who should be briefed, the procurement process was
only finalised on 30 September 2024. After SAPS’ counsel was appointed and perused the brief the State Attorney received a memorandum on 3
October 2024 requesting an urgent consultation with the arresting officers
Ramp aeri and Thabethe. The consultation was necessary to assess and to
get a sense of the Minister’s defence to the claim and to amend his plea so
as to have a version before the court. According to this affidavit the plea was at that stage a bare denial with no version.

[10] Adv Mashabela acting for the Minister at this stage tried to reach the Daveyton police station on 3 October 2024 and despite trying two different
numbers only thereafter succeeded in contacting W/ Officer Hlongwane on
his mobile number and enquired if he knew the arresting officers. He also
sent him screenshots of the arresting officers ’ statements. Warrant Officer
Hlongwane undertook to revert to counsel on 4 October 2024. In the event he only reverted on Saturday 5 October 2024 with a voice note that the Cst .
Thabethe he had in mind was not the correct person.


[11] As a consequence counsel called Mr Lekal a on the same day to discuss
the state of the matter and the best possible approach under the circumstances. At this juncture counsel requested instructions to prepare a
substantive application for postponement to which Mr Lekal a agreed.

5
[12] He also tried to contact the said police officers on their mobile phone and
at the Daveyton police station with no success and states that he needed
more time to locate them.
[13] All the aforesaid took place against the backdrop of the State Attorney having been served with a notice of set -down on 23 August 2024 for the
trial to commence on 8 October 2024. This witness also explained that the State Attorney does not brief counsel from the outset and that the state
attorneys’ office is expected to handle all files allocated and manage
litigation until the hearing stage. This left the impression that the State
Attorney alone is to blame for the application for postponement.

[14] On 8 October 2024, the above was relied upon as a basis for a
postponement of the matter by Adv Morare who at this stage appeared for
the Minister. I was informed that she had to step in when for medical
reasons Adv Mashabela had to fall out of the matter on Sunday 6 October
2024.

[15] At the heart of the application is the difficulty that the state attorney’s office
never consult ed any of the witnesses before filing the Minister’s plea, which
amounted to a bare denial. The failure to consult witnesses was not only limited to the period immediately prior to trial but included the period before
filing the plea. In the circumstances it became necessary to explore why no
consultations took place for purposes of filing a plea. In addition Mr
Mthombeni appearing for Masente also required an opportunity to prepare
an answering affidavit whereafter the legal representative of the Minister
would require an opportunity to reply thereto. Mr Nthombeni only received
the application for he postponement during the afternoon on 7 October
2025 and when he was informed that there is a reference to annexures
thereto he immediately caused his office to call for such annexures given
the fact that no annexures were actually annexed.

[16] He received no response to the aforesaid request. This was later clarified
in Mr Lekala’s replying affidavit. When the matter was called before me on
8 October 2025 he had no opportunity as yet to file an answering affidavit to the application. He was given such opportunity whereafter the applicant
6
had to reply thereto. Such affidavits were exchanged and by 10 October
2025 the application papers were ripe.
[17] In my view t he real and underlying cause of the State Attorneys ’ failure to
consult the relevant SAPS witnesses before or after the filing of the plea
seems to have been in part the lack of an ability to communicate effectively
per email coupled with a failure of SAPS to track down such witnesses. I
made it clear that no proper case for a postponement was made out on
paper and t hat I was inclined to refuse same. This led to two officials from
the state attorneys office being called to give oral evidence so as to explain the aforesaid difficulties and also the interaction with Mr Lekal a in more
detail.

[18] These official s explained that the State Attorney’s office is hampered in its
task by the fact that it has no stable email system and this often caused
delays in communicating with SAPS so as to request that witnesses be
tracked down timeously before a plea becoming due and that as a
consequence and to avoid the Minister being placed under bar the practice
developed to file a ”holding plea” with the intention to amend the plea as
soon as the SAPS witnesses are tracked down and consulted. In the
present case this could not be done timeously.

[19] Mr Lekal a was also called by Adv Mor are to explain and elaborate why he
could not find the said witnesses. He testified on 9 October 2024 (before
filing the replying affidavit referred to above). His evidence demonstrated
that he keeps no proper filing system and also fails to diarise dockets in a
systematic way so as to pursue enquiries into the whereabouts of
witnesses. It is clear that his office is run in a chaotic fashion. When I
expressed my disapproval as to the way his office is being run and that a ny
postponement may have to be at the ri sk of him paying the wasted costs
personally he indicated that he might be able to find the relevant witnesses
who then suddenly became traceable and by 10 December 2025 Adv
Mashabela appeared with Adv Morare for the Minister and informed me that
they have been able to consult with Cst. Rampieri and Cst Thabethe. I was
also provided with an amended plea on 10 October 2025 and informed that
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to the extent that Masente claimed damages for unlawful arrest same was
settled for R130 000 and the only remaining issue was whether an amount
of R450 000 was stolen by the police.

[20] Given that the Min ister’s legal representatives tendered the plaintiff’s
wasted costs in respect of the delay in their heads of argument I will
exercise my discretion as to costs in such a way as to only order that the
Minister is liable for Masente’s wasted costs on Scale “B” to the extent that
time was spent on the application for a post ponement and the amendment
of the plea which include the whole of 8 and 9 October 2024 and the
morning of 10 October 2024. Mr Lekala and the officials from the State
Attorney should know that they are being let off lightly.

[21] From a perusal of the pre- trial minute it is clear that same was conducted
on the basis that all witnesses for the Minister are available and it was even
contended that the arrest was lawful. Given that the police witnesses was
not even consulted by that time it is clear that on the part of the Minister,
the particular official from the State Attorney conducted the pre- trial on a
false and deceptive basis. To state in a pre- trial minute that witnesses are
available when you have not been able to obtain them to formulate your
plea or to amend your plea and then to contend on the basis of the docket alone that the arrest was lawful is in my view unacceptable.

The Trial

[22] Ultimately the trial only started on 10 October 2024 at 15h00. After a short
opening address by Mr Mthombeni, Masente took the witness box and
testified that he his 31 years old and resides at 3086 Ndlaka Street Chris Hani Daveyton. He is qualified as a teacher but only worked for one month
as one whereafter he started working in his father’s business . He initially
testified that he conducts a liquor business at 1 849 Chris Hani Extension 4
Daveyton and is a co- owner of the business with his father Mr M Mas ente
but it later transpired that the liquor license of the said premises and 2 other outlets that he manages on behalf of his father were in the name of his
father and that he conducts and manages three taverns on behalf of his
8
father. Given that Masente’s original claim was for loss of money of which
he was the owner Mr Mthombeni caused an amendment to the Masente’s
pleadings to be made in terms whereof Masente amended his particulars
of claim and maintained a claim against the Minister for a similar amount
but now based on his position as a bona fide possessor of the monies
allegedly stolen by SAPS. The M inister ’s legal representatives did not
object to this amendment and the matter proceeded on this basis. The
amended pleadings were filed on 14 October 2024 whilst Masente was still
testifying in chief.

[23] In essence his evidence was that from the time that he was allowed to trade after lockdown from beginning December 2020 to t he end of December
2020 he did not do any banking. He stored the cash proceeds of the trading
period at home in a cupboard. He had no safe at home. The cash was
stored in a green Heineken cooler bag and in a red cooler bag. The green
cooler bag contained R200 and R100 notes amount ing to R400 0000 and
the red cooler bag contained coins, R20 and R50 notes amounting on his
initial evidence to R49000 and later in evidence in chief said to contain
R52 000.

[24] O n 1 January 2022 he was at his residential address and after removing
stock from the trading sites early the morning covering his light delivery van with a sail he arrived home and was unloading same to s tore liquor from
the taverns in a store room at home because he feared that same would be
stolen from the business premises given the fact that a state of lockdown
prevailed.

[25] Whilst he was unloading 3 police vans arrived. His wife called him whilst
she was washing dishes and said 2 of the policem en wanted to speak to
him.

[26] He spoke to one of them in the house who told hm he was suspected of
selling liquor from home. This police man was an Indian man (who later
became known as Cst Rampieri). With him was another black constable
(who later became known as Cst Thabethe). Masente was not told who he
9
allegedly sold liquor to and was informed that they wanted to search the
premises. Masente told them he was packing stock in the storeroom.
[27] According to Masente all the policemen’s badges were turned upside down
and he could not read their names. They also did not introduce themselves.
They searched his vehicle and lifted the sail on the back of the van and
displayed no interest in the remaining amount of beer on the van. They
searched the inside of the van and found some whiskey.

[28] They searched the store room where he was packing the stock and the house. They found no liquor in the house. Cst Rampieri eventually searched
the mai n bedroom and found the cooler bags with the money in the
cupboard. Cst Thabethe was present at this point as well as Masente’s wife.

[29] There was no warrant for purposes of conducting the above search.
Masente was asked where the money came from and he explained that it
came from the liquor business. He was then arrested for selling liquor
during the Covid- 19 period and also for money laundering. The money was
counted in the house in his presence and he was told that he was not
allowed to keep such an amount of money at his house.

[30] After his arrest he was placed in a double cab police van (one of the three
that arrived at his house). He did not refer to it in chief but all the liquor on
the premises was confiscated. Thereafter the three police vans left from his house. It is common cause that Cst Rampieri and Cst Thabethe ultimately
took him to the Daveyton police station.

[31] He was seated in the back of the police van with four other policemen. Cst
Rampieri was driving with one other officer sitting in front and whilst he was
seated behind Cst Rampieri and his hands were cuffed when he was arrested. Two other police officers were sitting with him in the back of the
double cab.

[32] After approximately 10- 15 minutes the vehicle he was in came to a standstill
in an open area known as Alliance and all the police officers alighted and
10
he was left alone in the police van. The officers walked towards the back of
the van he was in. He did not see the other police vehicles there.
[33] After about 45 minutes the officers returned and they proceeded to
Daveyto n police station. Upon his arrival there he was charged with
unlawfully trading in liquor during Covid - 19, Money - laundering, Bribery
and possession of explosives.

[34] He was eventually read his rights after approximately 5 hours . His mobile
phone and the money that was in the red cooler bag was booked in as exhibits into the SAP 13 register. He enquired as to what happened to the
money in the green cooler bag and was merely told by Cst Rampieri that all
monies were booked in at the charge office.

[35] After he came out on bail he made further enquiries and reported the fact that the money in the green cooler bag was never booked in as an exhibit.
This report was made to a Detective Mashebele. This detective could not
find the statement of the arresting officer. Masente never received the
R400 000 back. The detective also never told Masente what steps he took
to find same.

[36] He later established that W /Officer Hlongwane saw a green cooler bag in a
refuse bin outside the police station.

[37] He testified that neither he or his father are Vat Vendors. He could not
produce any proof of a proper book -keeping system. He normally did the
banking. If statements were required he obtained same wit h his father. He
produced a few documents demonstrating business activity in earlier years
but nothing pertinent to the period under discussion. The documents he had
were referred to in his amended particulars of claim as SM 3.3- 3.4 showing
deposits made in favour of SA Breweries at Absa Bank ranging between R60 000- R90 000 with a short period of time in between.

[38] He was cross- examined in-depth on the above and could not improve on
his evidence in chief . It is clear that no proper books were kept other than
a hand record which he stated w as missing after he was released. He was
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asked to produce a stock sheet of the stock in the business at the time of
the loss and was unable to do so. He stated however that he knows the
prices of the various items in stock . Given that he lodged no claim in this
regard this is of no consequence other than demonstrating that there was no proper bookkeeping. He did not produce any documentary proof of
purchases of liquor from his liquor suppliers who included SA Breweries,
Liquor Legends and Makro. He made arrangements with his suppliers after
the loss of the money and paid the amounts he owed, off. No attempt was
made to subpoena the records of any of these companies to prove that such quantities of liquor was purchased prior to the event in question that
could be sold to produce the amount of R400 000 and a further R50 0000.

[39] Under cross -examination he conceded that the confiscated liquor was
returned except for the whiskey. The amount that was in the red cooler bag
was re paid to him by EFT. To the extent that there were references to an
amount of R49 000 to R50 000 in the cooler bag he accepted the
correctness of the amount repaid by SAPS by EFT being R49 880.00.

[40] He laid a charge against the police officers involved. He was cross -
examined about the fact that the statement he made in this regard was after he was released on bail and on 4 January 2022 when the events of his
arrest were still fresh in his mind. In this statement he made no reference
to the fact that W /Officer Hlongwane allegedly saw the empty green cooler
bag outside the police station in a refuse bin. He could not explain why he
did not refer to this in his statement. It was also put to him that W /Officer
Hlongwane would in any event state that he found an empty red cooler bag in the refuse bin and not an empty green cooler bag should he b e called as
a witness. Masente’s answer hereto was that he had no comment hereon.

[41] It was put to him that the fact the police took him to Alliance was on his own
insistence. It was put to him that on the way to Daveyton police station
Masente spoke to an unknown officer on his mobile phone and arranged to
meet him there with the police men who arrested him . Masente denied this
and said that his mobile phone was taken from him upon his arrest.

12
[42] He was also referred to the fact that in paragraph 5 of his statement laying
charges against the police (which statement he allegedly wrote himself) he
said that he was called into the bedroom by his wife Constance and asked by a police officer to take out the money in the wardrobe and did so and
counted out R50 000 which he gave to the police officer. This version
contradicted his evidence in chief. He answered this by saying he knew the
amount was R50 000. He denied counting out the money and giving it to
the police officer. He was also referred to paragraph 6 of this statement .
This paragraph asserts that a police officer instructed that the house be
searched thoroughly and then a police officer found the cooler bag with
R450 000. These two paragraphs are non- sensical when compared with
his evidence in chief .

[43] In re -examination he contended that he did not write the statement of
complaint on which he was cross -examined himself. It was taken down at
Daveyton by a police officer. I asked a question to clarify how many police
officers were in the three police vans that arrived at his house. Masente stated that there were about 12 officers. He also in response to my attempt
to clarify his evidence regarding the issue as to whether only one officer
wrote down his statement stated that when he arrived at Daveyton to lay
charges he found different officers there. He also stated that he did not
check the statement before he signed same and was still in shock.

[44] I allowed further cr oss-examination on this point and it was put to him that
each time an issue is raised with him his statement changes. He was
pertinently asked why he did not tell the court that 2 or 3 officers took down
his statement. His response was that he asked them to take his statement.
When he was pressed to answer the question he said that he did not know
how to answer it.

[45] There after W/Officer Hlongwane was called to testify. In brief he was on duty from 18h00 to 06h 00 the night of 1 January 2021 and was charge office
commander. An elderly man and younger woman arrived and complained about police corruption to the effect that the police arrested Masente and
took two cooler bags with money. He had no personal interest in matter
13
except in as much as corruption was alleged . He noticed a red cooler bag
in a dustbin. He later made a supporting affidavit to the complaint laid by
Masente which referred to the fact that he found the red cooler bag. He also
took charge of the SAP 13 register on the night of the first . He caused the
red cooler bag to be checked into the register and caused statements to be
taken from Masente’s family. He does not recall any conversation with
Masente that evening. In any event he was not on duty in cells. He does
not know Masente personally. But for the fact that some relatives of
Masente came to complain about police corruption and that he found a red
cooler bag in a dustbin his evidence did not take the matter any further.

[46] Thereafter the matter stood down for Mr Mthombeni to obtain instructions
as to Mrs Masente’s availability. He was informed that she cannot go out
and was deployed as a stocktaker at Pick ‘n Pay. After the matter stood
down further he closed the plaintiff’s case . Subsequent thereto he applied
for the reopening thereof which was granted. After the matter stood down
further M r Mthombeni advised me that Masente’s father is on his way to the
Eastern Cape and is not prepared to assist as a witness. I warned Mr
Mthombeni that the failure to call witnesses that are available might lead to
adverse inferences but he then finally closed the p laintiff’s case.

[47] Mr Mashabela thereafter applied for absolution from the instance and
addressed me at length in this regard. At the heart of his argument was the
fact that there was insufficient evidence before me to place the Minister on his defence. Mr M thombeni opposed this application vigorously. I reserved
judgment in this regard overnight and on the morning of 17 October 2024
dismissed this application with costs on scale “B”.

[48] Thereafter Mr Mashabela opened his case with a short address and called Cst Rampieri as his first witness. He testified that he was on duty at
Chloorkop Taxi Violence Patrol when he received information from an
informant that a person was selling liquor illegally during lockdown at an address in Daveyton and shared this information with his partner Cst
Thabethe and 4 other police officers. They proceeded to the address in
14
Daveyton without any search warrant and arrived at Masente’s premises
being the address given to him by the informant.

[49] On his arrival he saw a Nissan bakkie being loaded. He thought that if he
first tried to obtain a search warrant the evidence might be removed. He
stepped onto the premises and walked along a passage to the back where
he knocked on the kitchen door. He requested that a gentlem an who turned
out to be Masente step out and asked him whether he was selling liquor. To his surprise Masente said “yes” whereafter Cst Thabethe joined them
and when Cst Rampieri asked him where the alcohol was Masente said it
is in the storage room and in the house. At this stage, the other police
officers were also in the yard. Cst Rampieri asked him to take him to the
storage room and Masente took him and Cst Thabethe to the storage room
at the back of the house.

[50] The door of the storage room was closed but not locked and Masente opened same for them whereafter Cst Rampieri observed a large amount
of different brands of alcohol. He does not drink himself and cannot identify
the brands. He called for assistance from the other officers to have the
liquor moved to the police vans.

[51] As the liquor was being removed he noticed a packet on t he floor and
peeped into it. He recognised i ts content as 4 blasting cartridges. He is not
an explosives expert but based his observation on his 8 years of experience during which he had exposure thereto. He followed standard procedure and
contacted the Germiston Standby Explosives Unit and spoke to Serg eant
Lapane. Based on the instructions he received from this officer he removed the packet and locked same in his police vehicle. His other colleagues were
still removing liquor from the storeroom. He told Masente to keep record of
the liquor that was removed so as to avoid later allegations that some of it
was stolen by the police.

[52] While still removing liquor he noticed that the bakkie had stickers on the door and observed what looked like liquor inside. He thereafter approached
Masente and asked him who the bakkie belonged to. Masente said that he
15
is the owner. He waited till they were finished with the liquor removal from
the storage room and while the other officers were walking around he asked
Masente regarding the bakkie. He could see no liquor inside the bakkie but
it had a sail over the back and when he lifted it up he saw a lot of liquor. He
asked Masente who the liquor belonged to and Masente said it was his.
The liquor on the bakkie was also confiscated.

[53] Thereafter he and the other officers went to the house. He was asked who else was on the premises when he arrived on the premises and he testified
that Masente’s wife was in the kitchen when he arrived there.

[54] Masente had identified himself as Sibusiso when he initially arrived at the
kitchen door. When they now went to the kitchen he asked Masente’s wife
where the rest of the liquor is and she pointed him to the fridge where he
found a sealed bottle of liquor which was confiscated. He asked Masent e
about any other liquor and was directed to the adjoining sitting room /lounge
where more liquor was found stacked at least a half meter high against the
wall This was also confiscated. Cst Thabethe was with Cst Rampier i at this
point.

[55] Cst Rampieri testified that the quantity of alcohol was too much for one
vehicle and they tried to split it equally between the three vehicles. He then
asked Masente whether there was any more alcohol but Masente said that
was all. Thereafter Cst Rampieri wanted Masente to step outside where he
was going to explain what was now going to happen to him. Cst Rampieri
felt safer outside. They barely started moving outside when Masente stopped. While he was trying to explain to Masente that he was going to
arres t him Masente interjected and asked Cst Rampieri to follow him back
into the kitchen without telling him why. Cst R ampieri followed him into the
kitchen and then Masente placed a weighty black plastic bag in his hand
and stated that he wanted to be released. He did not see where Masente
got the black plastic bag from. Cst Thabethe was just outside the kitchen at
this s tage.

16
[56] He opened the bag in his right hand and found that that it contained notes.
He then said to Masente that he is arresting him for bribery and corruption.
Masente said he should take the bag and release him when he placed the
bag in his hand. Cst Rampieri also informed him that he is under arrest for
possessing explosives and selling liquor during the revised lockdown
period. He then handcuffed Masente with his cuffed hands in front of his
body. As they moved to the police vehicle with the black bag in his ha nd,
Masente’s wife suddenly appeared and wanted to know where I was taking Sibusiso. He told her that Masente was under arrest and they were going
to the Daveyton police station. They got into his police vehicle. They were
just three in the vehicle. He passed the message that they are going to the
Davey ton Police station to the other police vehicles.

[57] In the event they did not go straight to the Daveyton police station. Whilst
in transit Masente phoned another police officer who allegedly wanted to
meet them near a bridge underneath the N12. Presumably, this was the
spot that Masente described as Alliance. Cst Rampieri wanted to see who this person was. When Masente spoke to this person Cst Rampieri could
not follow the conversation because they spoke in another language. When
they got to the spot Cst Rampieri and Cst Thabethe remained in the police
vehicle with M asente whilst so me of the crew of the other two vehicles got
out and came to speak to Cst Thabethe. After they stopped Masente still
pleaded to be released. They waited at this spot for approximately 20 – 30
minutes whereafter Cst Rampieri concluded they are wasting their time and they then proceeded to the Daveyton police station. The unknown police
officer they were waiting for never arrived.

[58] At the police station Cst Rampieri took Masente and together wit h Cst
Thabethe they went inside. He found the W/officer in command of the Client
Service Centre, an elderly gentleman whose name he does not remember
and told him what Masente was arrested for. They made arrangements for
the exhibits to be checked in and he and Cst Thabet he sat down with
Masente and he then counted the money in the black plastic bag. The
money was placed into an exhibit money bag. The black plastic bag he
17
threw into a dustbin. He did not think much of the plastic bag. The money
bag was checked into the SAP 13 exhibit register.

[59] Cst Rampieri opened a docket. At some point the explosive expert S ergeant
Lapane arrived. Cst Rampieri fetched the packet with the explosive material
from his police vehicle and handed it to Sergeant Lopane. Thereafter he
continued with the docket with Cst Thabethe with him. Masente was placed
in the holding cells and he did not see him again that day.

[60] Cst Rampieri was also asked if he was aware of the charges laid by Masente. He testified that he became aware thereof through detective
Ramauro who informed him about it and was the investigating officer. He
never went to court with regard to this case. Mr Mashabela had no further
questions at this stage and I sought to clarify certain aspects of Cst Rampieri’s evidence.

[61] I enquired about Masente’s mobile phone to which he responded it was booked in for downloading in the SAP 13 register – he regarded it as an
exhibit. He testified in answer to one of my questions that he did not dial t he
number of the police man Masente dialled. He also did not confiscate the
mobile phone earlier. I also asked him why he did not request Masente to
dial the number and then spoke to this police officer himself. His answer hereto was that he did not see himself doing that. He also confirmed that
nobody came to the police station to look for them. He regarded it as the task of the investigating officer to track down this unknown officer. He did
not see the need to confiscate the bakkie. He confiscated the liquor and
believed Masente’s when he said there was no more liquor.

[62] The matter was later postponed to 9 December 2024. Mr Mashabela
wanted to lead further evidence in chief as a consequence of one of my
questions. He enquired whether the cell phone was ever down loaded and
Cst Rampieri testified that he enquired from the investigating officer at some
stage who responded that the information was still being downloaded.

18
[63] Thereafter Mr M thombeni commenced an extensive and thorough cross -
examination covering various themes. He asked Cst Rampieri whether he
would sum it up as a good job done by him and his colleagues which Cst
Rampieri confirmed. This while he ended up driving from the scene of the
arrest to a suspicious secluded place at the request of Masente. Cst
Rampieri did not regard it as suspicious to go and stop at a secluded space.
The procedures followed by Cst Rampieri with regard to the explosives were also interrogated on several occasions . Cst Rampieri stuck to his
statement that he followed the instructions he received from Sergeant Lapane and that he himself was not an explosive expert. Cst Rampieri was
also asked whether he is familiar with the LCRC - The Local Criminal Record
Centre in Springs. He did not think of phoning the LCRC to obtain a
photograph of the scene with the explosives. Cst Rampieri stated that he
failed to do this given that the instructions from Sergeant La pane required
no photographs. He was also cross -examined on the SAPS Vehicle
Location report which indicated t hat he was a mere 22 minutes on the
premises of Masente.

[64] Cst Masente regarded this as a long period. It was put to him that in this period he confiscated a lot of liquor, phoned Sergeant La pane to get
instructions regarding the explosives and read Masente his rights after the arrest. The implication was that he tramples on peoples rights and the
Constitution. This was denied by Cst Rampieri. He was also asked what he
should do first when he arrives at a crime scene. When asked whether he
showed Masente’s his appointment card he said no. According to Cst
Rampieri he nevertheless introduced himself properly. He denied that their
names tags were illegible.

[65] He was also cross -examined about his informer and why this person was
not called. Cst Rampieri testified that the informer was a registered informer
identified by a number and could not be called as a witness. The informer
told Cst Rampieri that he purchased alcohol from Masente earlier the same
day. He was also asked whether the checked the lockdown regulat ions.
According to Cst Rampieri he did check Regulation 44(1) of the Revised
19
Lockdown Regulations and his removal of the liquor correlated with same.
He admitted that he himself did not find anybody selling or consuming
alcohol on the day in question. The informer did not give him Masente’s
name but the address.

[66] The aim that day was to verify that Masente was selling liquor which he
admitted. He did not arrest Masente immediately because Masente still had
to point out the liquor. It was his personal decision to first search the storage
room although Masente admitted that there was liquor in the house. Cst Rampieri was cross examined about the size of the house and what he
could see in the house when standing inside. It was suggested that it was
a RDP house. H e said that he could not remember the size of the house.
His evidence in chief was that it was a small house. He was asked if he could see the bedrooms when he was in the house. His answer was that
he could only see walls when in the house . When he stood where the pile
of liquor was against the sitting room wall he could not see the rest of the house. He was also asked whether he did not consider searching other
properties when he found the explosives and to this his response was that
he found liquor and explosives and for him this was enough.

[67] It was pointed out to him that his aim was to search the house and yet he never searched the bedrooms according to his evidence. He was
pertinently asked if he and Cst Thabethe was denying that they searched the bedrooms. He maintained that he did not search further and also denied
finding any cooler bags. He was also asked why he did not search inside
the bakkie . His response was that he did not think he would find anything
inside. He was also asked why he never searched inside the car for explosives. His response hereto was that he was not interested in the
vehicle. The explosives in the storage room was in the l eft corner and not
hidden.

[68] It was put to him that he was in charge (an assertion that is borne out by
his conduct on the premises the day). He denied this and said that W/officer
Napo was in charge. When it was pointed out that there is no statement by
20
W/officer in the docket and I asked him why there was no statement he said
we should ask W/officer Napo the question.

[69] He demonstrated to the court how he handcuffed Masente with his hands in front of him and how Masente could still use his mobile phone while
handcuffed. It became clear that the ability to pull the mobile phone from Masente’s trousers would depend on whether the trousers had pockets in
front as opposed to the side. He could not remember what trousers
Masente wore on the day in question. When pressed on whether the mobile
phone was part of the criminal case he initially said it was not and then later testified he thought it was part of the criminal activity because someone
wanted to interfere in the case.

[70] He was cross- examined as to whether he told anybody about the reason
for the phone being booked in as an exhibit. He insisted that he told a
member at the crime office. This arose because there was no mention
thereof in his statement. He ultimately admitted that he did not tell the
investigation officer that the purpose was to l isten to the conversation
Masente had with the unknown police officer.

[71] He was also cross -examined as to whether they all went into the house of
Masente at Masente’s behest. He stated they all just followed and that
Masente said there was alcohol in the house. He was also cross -examined
as to how many visits there was into the house and he identified two occasions I.e. when they went into the house following Masente and when
he went into the house and Masente placed the black plastic bag into his
hand. He was asked about the size of the kitchen and the fridge. It was not
a bar fridge and was a fridge with two sections. He was also asked why he
threw the black plastic bag in the dustbin. To this he responded that he was satisfied that the money was entered into the SAP 13 register. On the topic
of the explosives he did not know what the expert did with it. He was
unaware of the cooler bag W/officer Hlongwane found in the dustbin.

[72] It was then put to him that he and his colleagues took the one red cooler bag containing the R50, R2o and coins and the other green cooler bag
21
containing R400 000. His response was that he knew only about an amount
of approximately R49 000 and denied that any other monies were taken.
He den ied any knowledge of a red cooler bag from the bedroom. It was put
to him that there were 2 other officers with Masente in the back of the police
van. He said that this statement was wrong.

[73] Thereafter he was re- examined on inter alia the advice he received from
the explosive expert. He testified that the explosive expert wanted to know
whether anything was plugged in. When he advised the expert that
everything was unplugged he was informed not to step on it or put it in a
hot place. T he purpose of the call was to notify the expert about the
explosives found and not to get him to the scene. He could keep it in the police vehicle with the window open. The expert arranged to meet him at
the Daveyton police station. No specific time was agreed. He was also re-
examined on the mobile phone and the fact that there is noting in his statement on this . He was also referred to the SAP 13 register which
reflects an entry to the effect that the mobile phone is booked in for
downloading. See Section 2 on page 70 at the bottom extreme left column
as displayed on Caselines . He could not take the matter any further.

[74] Thereafter Cst Thabethe testified on behalf of the Minister. It is not
necessary to analyse his evidence in great detail. He broadly supports the evidence of Cst Rampieri but contradicts him in critical aspects. The most
critical aspect is whether the bedrooms were searched by the police. He places Cst Rampieri squarely in the search of the bedrooms and states that
he observed the search by Cst Rampieri of the two bedrooms , one bigger
and one smaller. No liquor was found there. He also denies that the dr awers
of the cupboard were searched and that any money was found in any cooler
bags as claimed by Masente. He also observed that Masente’s wife was in
and out of the bedrooms while the search thereof was taking place. He also
observed Masente when the latter went to fetch the black plastic bag with money that ended up in Cst Rampieri’s hands. According to him Masente
fetched it from one of the bedrooms .
22
[75] He also testified that Masente consented to the search of the premises. He
makes no reference to the confiscation of liqu or from the vehicle or from the
sitting room/lounge but mentions that liquor was found in the house. He
specifically mentions the liquor in the fridge in the kitchen. He also testified
that only after the house was also searched were the other police officers
called to come and assist with the loading of the liquor and this context he
mentions the liquor from the vehicle. He did not look into the black plastic
bag himself but testified that Cst Rampieri looked into the bag and said that
Masente was trying to bribe us. He adds that he called W/officer Napo who
told “us” to arrest Masente and to take him to the police station. He testified
that the latter reopened the black plastic bag and that the notes and coins
were shown to him (Cst Thabethe). When the stop took place on the way
to the police station he asked Masente who the policeman was and how far
away he was. Masente did not answer the question as to who this
policeman was and said the man was on his way.

[76] According to Cst Thabethe they arrived at the Daveyton police station about
11h30 – 12h00. He read Masente his rights at the police station. He wrote
his own statement A2 in the docket. He does not know what happened with
the black plastic packet at the police station. Under cross -examination he
stated that he showed his appointment card to Masente on their arrival. He
also stated that he could see Cst Rampieri when the bedrooms were
searched. He stated that the latter searched the wardrobe and around the
bed. When asked what the point was of searching the wardrobe and
drawers he simply said “nothing”. He was asked whether Cst Rampieri was searching not only for liquor but other things as well. He agreed with this
statement. H e denied that 2 cooler bags (red and green) were retrieved
from a wardrobe. He made it clear that he himself could not search because he was the rifleman.

[77] He stated that he had the rifle at all times. He never saw the cooler bags referred to. When he read Masente his constitutional rights at the police
statin he placed the rifle on a table. He explained that only after the
unknown policeman wanted to speak to them did he considered the mobile
23
phone an exhibit. He was asked why they did not wait for the unknown
policeman and answered the question with his own question to the effect
whether the unknown policeman’s conduct was not interference. He did not
count the money. When he wrote his statement he did not state the amount
of money in the black plastic bag. He did not know why the other officers
made no statement.

[78] He could not say where in the storage room the explosives were found. He
testified that Cst Rampieri gave the black plastic bag with money to
W/officer Napo. He could not remember the exact location where this
happened. In re-examination he testified that he received no training how
to deal with a suspect’s mobile phone. He had dealt with mobile phones personally twice before. When asked whether he is allowed to open a
suspect’s mobile phone he stated that would not want to invade a suspect’s
privacy. He di d not follow up the charges laid against them. He never saw
a red or green cooler bag.

[79] Thereafter Sergeant Lapane’s evidence was presented by Ms Morare. He
confirmed that he is an explosive expert and received a call from a person
whose name he could not remember to the effect that explosives were
recovered. On his version the caller told him that he was at Daveyton police
station. He went there and met this person. The explosives were pointed
out to him and booked out to his Germiston office. He t yped up an expert
statement for the docket. He confirmed that the statement in the docket was
his and then detailed the kind of explosives. According to him only
registered blasters are supposed to have same in their possession. He
does not know whether it was destroyed or is in the safe at the Germiston
office. He was cross - examined by Mr M thombeni who inter alia pointed out
that Cst Rampieri contacted him. It was pointed out to him that in his
statement in the docket he did not establish a chain of evidence. He denied
that he ever gave Cst Rampieri advice as to how to deal with the explosives
and stuck to his version that the caller phoned him from Daveyton police
station. He asked the caller why he did not wait for him at the scene of the
crime. He agreed that everything should have been photographed to
24
preserve the evidence. I understood this to mean at the place where same
was found. In re -examination he was referred to the entries he made at
Daveyton when he booked the explosives in and out.

[80] Thereafter arrangements were made for the filing of heads of argument as already set out above and the matter was postponed sine die and judgment
reserved.

Evaluation of the evidence

[81] Masente presented with a poor demeanour and his evidence came across as disjointed. He tried to present himself as co- owner of the business and
only later disclosed that it is his father’s business that lost money and that he merely managed the taverns on behalf of his father.
[82] His is real difficulty is the fact that he did not call any witness such as his
wife to substantiate his version of the events or even his father to substantiate the level of turnover or profit at the time. On the latter the
excuse was that his father did not want to testify given his historic
interaction with the courts of the country. His wife who is a vital eye witness did not want to testify due to her employer refusing to give her off. I warned
Mr Mthombeni that the failure to call witnesses such as Masente’s wife
might lead to adverse inferences and that the use of a subpoena could easily solve her problem with her employer. This notwithstanding neither
Masente senior nor Masente’s wife was called. She is a vital eye witness
on his version. The fact that his father left for the Eastern Cape when he could have made a substantial contribution as to the income generating
capacity of the business did not assist his case either.

[83] The fact that there was no bookkeeping system or a stock sheet available places a massive question mark over the ability of the taverns to have
generated the income of R400 000. The failure to call one of his suppliers
to establish the supply of goods during the period under discussion also counts against him. He claimed that the normal representative of SA
Breweries passed away but this does not mean that somebody else from
25
SA Breweries could not have been subpoenaed duces tecum with the
necessary records of such supply. The same notion applies to his other
suppliers of liquor.

[84] W/officer Hlongwane was a witness wh o answered questions directly and
displayed a good demeanour. Unfortunately, his evidence does not take the
case much further.

[85] Cst. Rampieri was also an unsatisfactory witness. He presented with an
over confident demeanour and conducted himself as if he was in charge. He conced ed that W/officer Napo was actually in charge of the scene of the
crime but hardly ever deferred to the latter on his version. His evidence that the bedrooms were not searched is not borne out by Cst . Thabethe his
buddy who places him squarely in the search of the bedrooms. He is contradicted by the explosives expert as to the issue whether he sought
advice. It is clear that he never followed proper protocol with regard to the
recovered explosives.

[86] Cst. Thabethe was probably the closest to an honest witness among the
two police witnesses on the scene who were called. He nevertheless denied
the presence of the R400 000 in the green cooler bag and the R49 000 –
R50 000 in the red cooler bag. I am des pite all the evidence from these two
witnesses left with my suspicions as to what really transpired on the day in
question. This is not a basis on which I can find for Masente given the
weaknesses in his case.

[87] I have no reason to doubt Sergeant Lapane ‘s evidence except for the fact
that no proper chain of evidence was disclosed in the statement in the
docket or even in court. T his does not mean that he lied as to the
established protocol regarding the recovery of explosives.

[88] I considered the heads of argument filed by Mr Mthombeni on behalf of
Masente. Despite his contentions about informal businesses his arguments do not persuade me. In the circumstances Masente’s claim must fail given
that he had the onus of proving his case.
1 For the Plain
tiff: Mr M thombeni PT MTHOBENI ATTORNEYS
MOBILE NUMBER:082 364 1265
EMAIL :
mthombeniattorneys@telkomsa.net
Tel/Fax No: (011) 421 5619
Mobile No: 082 364 1265
House Number 93
Wooton Avenue
Benoni West
For the Defendant : Adv Mashabela Club Advocates Chambers
Hazelwood
Pretoria
with
Adv A Mo
rare
Instructed by: The State Attorney
Johannesburg,
REF: 0343/22/P67
Mr S MAGCAKINI
Email: SMagcakini@justice.gov.za
Tel N o: (011) 330 7784
Fax: (011) 330 1782