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[2014] ZAWCHC 76
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Mawu and Another v Minister of Police (15465/2009) [2014] ZAWCHC 76; 2015 (2) SACR 14 (WCC) (14 May 2014)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
REPORTABLE
Case
Number: 15465/2009
DATE:
14 MAY 2014
In the matter
between:
THOBEKA
MAWU
.............................................
First
Plaintiff
SISEKA
ALI
...................................................
Second
Plaintiff
And
MINISTER OF
POLICE
.....................................
Defendant
JUDGMENT
DELIVERED ON 14
MAY 2014
ZONDI, J:
[1] The plaintiffs
claim damages from the defendant on the ground that they were
unlawfully arrested and detained by the police
officers acting within
the scope of their employment with the defendant. Their claim arises
out of their respective arrests, both
of which were without warrant,
on Thursday, 26 February 2009 in Khayelitsha and their subsequent
detention at Bellville South police
station cells until Monday, 2
March 2009 when the charges against them were withdrawn. The
plaintiffs contend that their arrests
and detention were unlawful.
The defendant defended the action and invoked the provisions of s 40
(1) (b) of the Criminal Procedure
Act 51 of 1977 (“the Act”)
to justify the lawfulness of the plaintiffs’ arrests and their
subsequent detention.
[2] At the start of
the trial,, the parties requested the Court to direct that the issues
of merits and quantum be separated in
terms of rule 33 (4) of the
Rules of Court; and that the only question to be decided by this
Court be that of the merits. It was
so ordered.
[3] The first
plaintiff (“Ms Mawu”) is a 34 year old female. She
resides at Old C…. Roads, N……,
Cape Town. She
was arrested on 26 February 2009 at about 23h00 by reason of the fact
that she is the registered owner of a black
Toyota Yaris sedan (“the
vehicle”) with registration letters CA 16……..
which the police suspected to
have been used in the commission of a
crime of a house robbery in Welgemoed, Bellville, earlier on that day
at about 21h00. It
is common cause that at the time of her arrest she
had parked the vehicle at her friend’s house (Nomfazwe). She
took the
police to Nomfazwe’s house. It is further common cause
that after the arrest the police searched Mawu’s vehicle and
her house and seized certain items. But none of those items could be
linked to the crime for which she was a suspect.
[4] As regards the
second plaintiff (“Ms Ali”), it is common cause that she
is Mawu’s friend and she is also 34
years of age. Her house is
about six houses away from Ms Mawu’s place. On the day in
question, she has been at Mawu’s
house at about 14h30 until
late in the afternoon when she and her friend drove to town. When she
returned home at about 23h00 after
having spent some time with her
friend in town, she saw the police vehicle standing in front of
Mawu’s house. Concerned about
Mawu’s safety, she took a
turn at her house with a view to ascertaining if she was not in
trouble. When she was arrested
she had just arrived at Mawu’s
house. They were both arrested on 26 February 2009 and detained in
Bellville South police
station. They were so detained until they were
released on Monday, 2 March 2009 when the charges against them were
withdrawn.
[5] It is clear from
this brief factual background that the arrests and detention of the
plaintiffs are not in dispute. What is
disputed is the lawfulness or
otherwise of these arrests and detention. The onus of justifying the
arrests and detention of the
plaintiffs therefore lies on the
defendant. (Zealand v Minister of Justice and Constitutional
Development and Another
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) paras 24 and 25; Rudolph
and Others v Minister of Safety and Another
2009 (5) SA 94
(SCA) para
14).
[6] The plaintiffs
testified regarding their arrests and the defendant presented the
evidence of the arresting officer, Inspector
Van Zyl (“Van
Zyl”) and Mr Tanswell Louw (“Louw”) to justify the
lawfulness of the arrests and detention
of the plaintiffs.
[7] Ms Mawu is the
registered owner of the relevant vehicle. She uses the concerned
vehicle for the purposes of transporting for
reward school children
to and from school and this is what she did in the morning of the day
in question. According to Ms Mawu
besides her friend, Xoliswa she is
the only person who drove her vehicle on 26 February 2009. After
doing her morning rounds she
parked the vehicle in her yard until at
about 13h00 when she went to fetch children from school. Having done
so, she parked the
car in her yard until at about 16h00 when she took
it to a car wash place which is located within the walking distance
from her
house. She left the vehicle at the car wash and walked back
home. Some two hours later at about 18h00 she collected it from the
car wash.
[8] Ms Mawu also
testified about the get-together she had at her place on the day in
question. She and her group of friends including
Ms Ali had a braai
at her place during the day. To entertain her guests she played music
from her vehicle which she parked in her
yard. This was the case
until one of her guests brought his vehicle into Ms Mawu’s
yard. Thereafter, music was played from
that vehicle. She then drove
her vehicle out of her yard and parked it on the street as her yard
is too small to accommodate more
than one vehicle. At about 22h00 she
decided to drive her vehicle and park it at her friend’s garage
as she was concerned
about its safety. Her male friend, called Siya
accompanied her to the friend’s house. After parking the
vehicle at her friend’s
house, which is about two blocks away
from her house, Ms Mawu and her male companion walked back home.
[9] Shortly
thereafter, the police including Inspector Van Zyl arrived at her
house. They asked her if she was Thobeka, about the
ownership of a
vehicle which was in her yard and about the whereabouts of her
vehicle. She confirmed that she was Thobeka and informed
them her
vehicle was at her friend’s house. During this exchange Ms Mawu
noticed that one of those police carried a piece
of paper in his hand
on which particulars of her vehicle were written. She was asked to
take them to where her vehicle was parked
which she did. Siya
remained behind. As she walked out of her house, Ms Ali arrived. She
asked Ms Ali to get the house keys from
Siya and locked up the house.
While at Nomfazwe’s house, two other police officers arrived in
a police van. Ali was at the
back of the police van.
[10] According to
Mawu, she did not know why she was arrested because her enquiries
were simply ignored by her arrestors. From Nomfazwe’s
place,
Mawu and Ali were conveyed to Nyanga police station and thereafter to
Bellville South police station where they were charged
and detained.
It was only at that stage that she was informed of the reasons for
her arrest.
[11] During
cross-examination, her testimony was that she drove her vehicle to
Nomfazwe at about 21h30 and the police arrived at
her house at about
22h00. She conceded that her earlier testimony that she went to
Nomfazwe at 22h00 must have been a mistake.
She denied that her
vehicle was used in the commission of armed robbery at Welgemoed at
about 21h00 contending that it could not
have been there because it
was parked in front of her house at the relevant time. She could not
deny that the police came to her
house at about 23h00 because she did
not check time. She denied that she refused to co-operate with the
police when they asked
her about the whereabouts of her vehicle.
[12] Ali confirmed
that when she arrived at Mawu’s house at about 23h00, Mawu was
being escorted by the police out of the
premises. At the same time,
she saw two other police officers on the premises leaving Mawu’s
house with Siya. They took Siya
to the police van which was parked in
front of Mawu’s house. It was the first time that she met Siya
on the day of the incident.
Mawu asked her to get the house keys from
Siya and lock up the house. At that stage Siya was in the police van
sitting between
the driver and the passenger. Ali approached Siya and
requested the keys from him. Siya got out of the vehicle and after
giving
Ali the keys he fled the scene. The police gave chase and
fired a warning shot but they were unable to arrest Siya. When they
later
returned to the house they arrested Ali and conveyed her to
Nomfazwe’s house where Mawu was with Van Zyl, Smit and
Wolmarans.
Ali was not told why she was arrested despite her
enquiries. This was only disclosed when she was later charged at
Bellville South
police station. She was informed that she was charged
with defeating the ends of justice and armed robbery.
[13] During
cross-examination, she was referred to her police statement in which
she had mentioned that she arrived at Mawu’s
house at 23h00.
She said the time she gave was just an estimate. She denied that she
orchestrated the escape of Siya from the police
custody.
[14] The defendant
presented the evidence of Van Zyl and Louw to justify the lawfulness
of the plaintiffs’ arrests and detention,
in other words why
Van Zyl exercised his discretion by arresting the plaintiffs. Van Zyl
arrested the first plaintiff in connection
with the armed robbery
which was committed at 22 Q….. Street, W……..,
B……………...
On 26 February 2009 at
about 21h10 he received a report through the control room of the
armed robbery at 22 Q……
Street, W……. and
according to the report a dark grey Toyota Yaris with registration
letters CA 1………..
was seen at, and sped away
from, the scene of the crime. Further investigation revealed that the
vehicle concerned was registered
in the name of Mawu. Armed with this
information Van Zyl accompanied by Captain Wolmarans and Smit
proceeded to Mawu’s house
In Khayelitsha. On his way to Mawu’s
place he stopped at Nyanga police station and requested the police
escort as he was
not familiar with Khayelitsha area. Two policemen
escorted him to Mawu’s house. They arrived at Mawu’s
place at about
23h00. A vehicle was parked inside the premises but it
did not match the description of the vehicle he was looking for. His
further
investigation in the area revealed that the suspected vehicle
was parked at a certain address. He proceeded to that address. He
looked over the wall and saw it. He climbed over the wall to have a
proper look at it. According to his observation, the vehicle
appeared
to have been recently driven. Having ascertained the whereabouts of
the vehicle Van Zyl then drove back to Mawu’s
place.
[15] Mawu opened the
door for Van Zyl and his two colleagues and let them in. According to
Van Zyl he introduced himself to Mawu
and explained the purpose of
his visit. He asked Mawu about the whereabouts of her vehicle at
21h00. She failed to co-operate and
on further probing Mawu offered
to accompany them to where the vehicle was parked. Mawu was with a
male person in the house. Van
Zyl asked the two police from Nyanga
police station, who had accompanied him to Mawu’s place, to
take the male person into
the police van while Mawu was taking him to
where her vehicle was parked. As Van Zyl and Mawu left the house, Ali
arrived and he
overheard Mawu asking Ali to lock up the house and
keep the keys.
[16] After it was
confirmed that the vehicle concerned belonged to Mawu, Van Zyl asked
Smit to drive it back to Mawu’s house
which he did. Upon their
arrival at Mawu’s house it was reported to Van Zyl that the
male suspect (Siya) had escaped and
Ali was responsible for the
escape. Van Zyl arrested Ali.
[17] Van Zyl’s
cross-examination by Ms Mziba on behalf of Ali revealed that
according to Van Zyl’s information, two
male suspects were
involved in the robbery. He suspected that a driver of the getaway
vehicle could have been a female. He conceded
that he failed to
mention in his statement that Ali was arrested for the escape of
Siya. The omission was a mistake on his part,
he stated.
[18] The witness was
referred to the police incident report relating to the house robbery
in connection with which the plaintiffs
were arrested in which the
colour of the vehicle concerned is indicated as blue. He was unable
to explain as to why that description
was given.
[19] Mr Louw is the
witness who phoned the police and provided them with the details of
the vehicle concerned. According to him,
the vehicle he saw on the
day in question when he arrived home shortly after 20h00 was a
dark-grey Toyota Yaris. He was adamant
that the vehicle he saw was
greyish in colour, definitely not black. He testified that he had
sufficient time to observe it. He
stopped his vehicle behind it with
his vehicle lights shone on it. He conceded that in his police
statement he did not mention
the registration letters of the relevant
vehicle. This was because he could not independently recollect its
registration letters.
He assumed that the police were already aware
of the identity of the registered owner of the vehicle concerned. He
did not rule
out the possibility that the police official who
received his call might have taken down the registration numbers
incorrectly.
[20] Section 40 (1)
(b) of the Act, upon which the defendant relies for its defence,
empowers a peace officer to arrest without
a warrant any person. It
provides as follows:
“(1) A peace
officer may without warrant arrest any person-
(a) …
(b) whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from
lawful custody.”
[21] In Duncan v
Minister of Law and Order
1986 (2) SA 805
(A) at 818 G-H Van Heerden
JA held that that the jurisdictional facts which must exist before
the power conferred by s 40 (1) (b)
may be invoked are: first, the
arrestor must be a peace officer; secondly, he must entertain a
suspicion; thirdly, it must be a
suspicion that the arrestee
committed an offence referred to in Schedule 1 to the Act and
fourthly, the suspicion must rest on
reasonable grounds.
[22] The test
whether a peace officer “reasonably suspects” a person
having committed an offence within the ambit of
s 40 (1) (b) is an
objective one. The test is not whether a police believes that he has
reason to suspect, but whether, on an objective
approach, he in fact
has reasonable grounds for his suspicion. The test as set out in
Duncan was endorsed by Rabie CJ in Minister
of Law and Order and
Others v Hurley and Another
1986 (3) SA 568
(A) at 579 H and later
adopted by Harms DP in Minister of Safety and Security v Sekhoto and
Another
2011 (1) SACR 315
(SCA) para 6. See also Minister of Safety
and Security and Another v Swart
2012 (2) SACR 226
(SCA) para 17.
[23] Once these
jurisdictional requirements are met, a discretion whether or not to
arrest arises. In other words, the officer is
not obliged to effect
an arrest (Sekhoto para 28). He has a discretion whether or not to
effect the arrest and that discretion
must be exercised judicially.
In general the power to arrest must be exercised within the limits of
s 40 (1) (b) read in the light
of the Bill of Rights. It is necessary
to emphasise that the decision to arrest must be based on the
intention to bring the arrested
person to justice, (Duncan at 820 D).
[24] The onus is on
the defendant to justify the lawfulness of the arrest. This is so
because an arrest constitutes as it does an
interference with the
liberty of the individual concerned and the person who caused the
arrest of another person should bear the
onus of proving that his
action was justified in law (Minister of Law and Order v Hurley and
Another 1986 (3) SA 568 (A) at 589
E-F).This was the law prior to the
adoption of a Bill of Rights and the position has not changed since
its adoption although that
right is now expressly provided for in s
12
1
of the Constitution which guarantees everyone the right to freedom
and security including inter alia a right not to be deprived
of
freedom arbitrarily or without just cause and not to be detained
without trial. It provides both substantive and procedural
protection. See Woolman et al Constitutional Law of South Africa 2ed
at 40-26. This dual protection afforded by s 12 (1) was articulated
by O’Regan J in Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at para 145:
“[145] In my
view, freedom has two interrelated constitutional aspects: the first
is a procedural aspect which requires that
no one be deprived of
physical freedom unless fair and lawful procedures have been
followed. Requiring deprivation of freedom
to be in accordance with
procedural fairness is a substantive commitment in the Constitution.
The other constitutional aspect of
freedom lies in a recognition
that, in certain circumstances, even when fair and lawful procedures
have been followed, the deprivation
of freedom will not be
constitutional, because the grounds upon which freedom has been
curtailed are unacceptable.”
[25] It is common
cause in relation to Mawu that she was arrested without a warrant by
Inspector Van Zyl, a peace officer on the
suspicion that her vehicle
was used in the commission of a crime of armed robbery. As regards
Ali the facts relating to her arrest
are in dispute. Her evidence,
which is corroborated by Mawu, is that she was arrested at the scene
by the two police from Nyanga
police station who had been told by Van
Zyl to guard Siya while he together with two other police was away
with Mawu. This version
is disputed by Van Zyl. According to him, he
arrested Ali when he later returned to the scene with Mawu because
she “covered
up for the owner of the vehicle and she assisted
the suspect to escape”. That factual dispute needs to be
resolved as its
resolution is necessary for the determination of the
issues which arise in this matter, namely the lawfulness of the
arrest and
detention of Ali. The lawfulness of her arrest depends
inter alia on the rank of her arrestor as well as the reason for her
arrest.
I will return later to this aspect when I deal fully with the
evidence relating to the arrest and detention of Ali.
[26] The real
dispute is about the reasonableness of the suspicion on which a
decision to arrest was made.
[27] In Duncan (at
818H – 819B) the Court considered the nature of powers
conferred by s 40 (1) (b) on a peace officer once
the jurisdictional
facts are established. It pointed out that the peace officer has a
discretion as to whether or not to exercise
the power to arrest. It
held that once the jurisdictional facts are established, it is for
the plaintiff to prove that the discretion
was exercised in an
improper manner. This approach was endorsed and adopted by the Court
in Sekhoto (at para 46) as being the correct
approach and it
explained why the plaintiff bears the onus to show that the
discretion to arrest was not properly exercised. This
was explained
as follows (at para 50):
“…It
cannot be expected of a defendant, … to deal effectively, in a
plea or in evidence, with unsubstantiated
averments of mala fides and
the like, without the specific facts on which they are based being
stated. So much the more can it
not be expected of a defendant to
deal effectively with a claim — as in this case — in
which no averment is made,
save a general one that the arrest was
'unreasonable'. Were it otherwise, the defendant would in effect be
compelled to cover the
whole field of every conceivable ground for
review, in the knowledge that, should he fail to do so, a finding,
that the onus has
not been discharged, may ensue. Such a state of
affairs, said Hefer JA, is quite untenable.”
[28] It was
submitted by Mr Godla on behalf of Mawu that the test whether a
suspicion is reasonably entertained within the meaning
of s 40 (1)
(b) is objective. He argued that a reasonable man in the position of
Van Zyl and possessed of the same information
– colour of the
vehicle and the gender of suspects – would not have considered
that there were good and sufficient
grounds for suspecting that Mawu
had participated in a crime of armed robbery. He pointed out that Van
Zyl should have first verified
the information before arresting the
plaintiffs by removing the vehicle for further investigation and by
getting more information
from Louw relating to the occurrence at the
crime scene. He submitted that Van Zyl’s failure to verify
information on which
he acted, rendered the arrests of the plaintiffs
unlawful. For this proposition he referred to an unreported judgment
in the matter
of Lindile Mbotya v Minister of Police (1122/10) [2012]
ZAECPEHC 43 para 25 (10 July 2012) in which a dictum in Mabona and
Another
v Minister of Law and Order and Others
1988 (2) SA 654
(SE)
at 658 E – H was quoted with approval.
[29] He pointed out
that in the present matter the information at the disposal of Van Zyl
was that two black male suspects fled
the scene in a dark grey Toyota
Yaris with registration number CA 169976. He accordingly submitted
that it was unreasonable for
Van Zyl to arrest the plaintiffs who
were both females and did not have a grey Toyota Yaris.
[30] Lindile Mbotya
v Minister of Police also concerned the lawfulness of the arrest
effected in terms of s 40 (1) (b) and the issues
for consideration in
that case (at para 4 of the judgment) were inter alia whether on the
facts the arrestor had formed a reasonable
suspicion that the
plaintiff had committed an offence falling under Schedule 1 of the
Criminal Procedure Act and
whether he applied his mind properly in
exercising his discretion to arrest the plaintiff. In considering the
issues which were
before it the Court adopted the following approach
(at para 25) quoting with approval the dictum in Mabona supra at 658
E –
H:
“It seems to
me that in evaluating his information, a reasonable man would bear in
mind that the section authorises drastic
police action. It authorises
an arrest on the strength of a suspicion and without the need to
swear out a warrant, ie something
which otherwise would be an
invasion of private rights and personal liberty. The reasonable man
will therefore analyse and assess
the quality of the information at
his disposal critically, and he will not accept it lightly or without
checking it where it can
be checked. It is only after an examination
of this kind that he will allow himself to entertain a suspicion
which will justify
an arrest. This is not to say that the information
at his disposal must be of sufficiently high quality and cogency to
engender
in him a conviction that the suspect is in fact guilty. The
section requires suspicion not certainty. However the suspicion must
be based on solid grounds. Otherwise it will be flighty or arbitrary,
and not a reasonable suspicion.”
[31] To the extent
that it is suggested that this passage is authority for the
proposition that for a reasonable suspicion to be
formed the quality
of the information upon which the arrestor acts must be analysed and
assessed and that acting on the information
the quality of which has
not been subjected to scrutiny will render an arrest unlawful, I
disagree. I am unable to find anything
in the provision of
s 40
(1)
(b) which leads to the conclusion that this is the requirement. A
lawful arrest in terms of
s 40
(1) (b) can be made upon a reasonable
suspicion. And in Duncan v Minister of Law and Order
1984 (3) SA 460
(T) at 465 H the word “suspicion” was defined as meaning
an absence of certainty and of adequate proof. The Court went
on to
refer to the remarks of Lord Devlin in the Privy Council in Shaaban
Bin Hussien and Others v Chong Fook Kam and Another
[1969] 3 ALL ER
1626
at 1630 in which the word “suspicion” in its
ordinary meaning “was defined as a state of conjencture or
surmise
where proof is lacking;
I suspect but I a
cannot prove. Suspicion arises at or near the starting point of
investigation of which the obtaining of prima
facie proof is end”.
[32] Van Dirkhorst J
in Duncan held that the grounds for a suspicion are not limited to
facts which can be proved in Court. He pointed
out that a reasonable
suspicion could also conceivably be formed where a person has been
seen at the scene of a crime and upon
being questioned gives a false
alibi or refuses to answer questions.
[33] I do, however,
recognise that there may be a tension between the need to combat
crime and the right of the citizens not to
be deprived of their
liberty. As was correctly pointed out by Van Dijkhorst J in Duncan at
466D – F):
“The power of
arrest without a warrrant is a valuable means of protecting the
community. It should not be rendered impotent
by judicial
encrustations not intended by the Legislature. On the other hand the
law is jealous of the liberty of the subject and
the police in
exercising this power must be anxious to avoid mistaking the innocent
for the guilty. They often have to act on the
spur of the moment with
scant time to reflect, but they should keep an open mind and take
notice of every relevant circumstance
pointing either to innocence or
to guilt.”
[34] On the other
hand, Mr Jacobs SC for the defendant submitted that the circumstances
under which the plaintiffs were arrested
justified a reasonable
suspicion. This submission was founded upon the following facts:
34.1 A dark grey
Toyota Yaris bearing registration letters CA 169976 was seen at the
scene of the crime on 26 February 2009 at about
21h00.
34.2 Mawu was the
registered owner of a black Toyota Yaris bearing similar registration
letters;
34.3 There was no
suggestion that Mawu’s vehicle had been reported stolen at the
relevant time;
34.4 When Mawu was
asked about the whereabouts of her vehicle at the relevant time she
refused to co-operate and lied about time.
In this regard it was
submitted by Mr Jacobs that Mawu’s vehicle could not have been
parked at her friend’s house at
21h30 because, he argued, when
Van Zyl touched its bonnet at 23h00 it was still warm and the person
at whose house the vehicle
was parked told Van Zyl that it was parked
“just now”.
34.5 Mawu also gave
conflicting versions as to where the car keys were when asked by Van
Zyl to produce them;
34.6 After arresting
Mawu, when Van Zyl searched her car he found two cellphone chargers
and a small Sony Playstation. He found
a Nokia cellphone and a wrist
watch in the house. When Mawu was asked about ownership of these
items she said they did not belong
to her.
[35] Mr Jacobs
accordingly submitted that on these facts Van Zyl had to arrest Mawu
and there was no duty on him to have obtained
collateral information
before doing so. An analysis of Van Zyl’s evidence is necessary
in order to assess the correctness
of Mr Jacobs’ submissions.
The question is whether these facts, to which Mr Jacobs referred,
are sufficient to establish
the jurisdictional requirements for a
valid arrest in terms of s 40 (1) (b) of the Act, if so, whether Van
Zyl properly exercised
his discretion when he decided to arrest the
plaintiffs.
[36] It is apparent
from Van Zyl’s testimony that he could not have taken a
decision to arrest Mawu when he confronted her
about the whereabouts
of her vehicle. He took a decision to arrest her when he later
returned with Mawu to her house from her friend’s
house. This
is borne out by Van Zyl’s assertion that he arrested Mawu
because she lied about the whereabouts of her vehicle
at the relevant
time and she had items in her car and in her house which she said did
not belong to her.
[37] With regard to
the first ground on which Van Zyl relied for his decision to effect
the arrest, it is not correct that Mawu
lied about the whereabouts of
her vehicle at the relevant time. Her evidence was that it had been
parked in front of her house
until she went to park it at her
friend’s house at about 21h30 – 22h00. As to the second
ground, namely that certain
items were found in her car and in her
house which she said did not belong to her, it could not have served
as a valid reason on
which to found a reasonable suspicion. This is
so because at the time of the arrest of Mawu, Van Zyl did not know
what goods were
stolen from the victim. He had not received a
statement from the victim. One cannot draw a possible inference of
untruthfulness
from the fact that she disavowed ownership of the
relevant items bearing in mind that on a day in question she had a
party at her
house and a reasonable possibility exists that those
items belonged to some of her guests who might have forgotten to take
them
with when they left.
[38] Moreover, when
Van Zyl proceeded to Mawu’s house the information he had in his
possession was that a dark grey Toyota
Yaris with registration
letters CA 169976 was used in the commission of an offence. He was
therefore looking for a dark grey Toyota
Yaris with registration
letters CA169976. He did not find a dark grey Toyota Yaris but found
a black Toyota Yaris albeit with similar
registration letters. That
discrepancy should have alerted him to the possibility that this was
not the vehicle he was looking
for and should not have for that
reason arrested Mawu. It is correct that there are similarities in
terms of make and registration
letters between the vehicle he was
looking for and Mawu’s vehicle. But he should have investigated
the discrepancy to verify
his information because such discrepancy
weakened the inference of a possible involvement of Mawu’s
vehicle in the commission
of the relevant crime. A reasonable
possibility existed that Mawu’s vehicle’s registration
letters were duplicated
by unknown persons for the purposes of
committing the crime in question. In my view, a reasonable policeman
would no longer have
good grounds of suspicion, and he would not have
arrested Mawu. The information he thus far had could not serve as a
basis on which
to arrest Mawu; it was sufficient for the purposes of
conducting further investigations.
[39] There are also
serious contradictions in Van Zyl’s evidence which in my view
render his evidence less reliable. In his
statement he made shortly
after the arrest of the plaintiffs Van Zyl stated:
“Om 23:00
spreek ek die eienaar van Toyota Yaris Reg. CA 16……. by
haar woning te 2…. Be….. H……
Nyanga. Sy
wys my haar voertuig uit en kon nie aan my verduidelik wie vroeer
haar voertuig gery het nie. Mev Mawu wou geen samewerk
verskaf nie.”
[40] This version is
inconsistent with his testimony. It was not his evidence that he had
asked Mawu to tell him who drove the vehicle
concerned at the
relevant time. His evidence, which is consistent with Mawu’s
version, is that he asked her about the whereabouts
of her vehicle at
21h00 on 26 February 2009.
[41] I accept Mawu’s
version that at a time of her arrest she was not informed why she was
required to account for the whereabouts
of her vehicle. Her version
is consistent with her warning statement in which she said: “I
didn’t know what was happening,
no one explained to me or read
my rights to me”. Her version also finds corroboration in Ali’s
evidence. She testified
that when she saw Mawu being escorted by the
police out of the house she asked her what was happening and Mawu’s
response
was that she did not know.
[42] Had Van Zyl
explained to her why he was interested in knowing of the whereabouts
of her vehicle Mawu would in all probability
have told him where her
vehicle was and why she had taken it to her friend’s house.
His failure to inform Mawu of the nature
of the allegations against
her deprived her of the opportunity to provide information which Van
Zyl was bound to consider in deciding
whether or not to arrest her.
In the circumstances, I find that the defendant has failed to show
that the arrest of Mawu was lawful.
Her subsequent detention which
followed upon her arrest was similarly unlawful.
[43] It is also not
clear why Mawu’s warning statement, on the basis of which she
was later released on 2 March 2009, was
only taken on 28 February
2009, some two days after her arrest. In light of the fact that her
release was secured as a result of
what she stated in her warning
statement, it is reasonable to infer that had her warning statement
been obtained before 28 February
2009, it would have been clear to
Van Zyl and/or Inspector Uys (the investigating officer) that her
detention was not necessary
at all. In the circumstances, I find that
the suspicion entertained by Van Zyl was not a reasonable suspicion.
It therefore follows
that her arrest is not justified by s 40 (1)
(b), and hence that it was unlawful. Her subsequent detention is
accordingly also
unlawful.
[44] I turn now to
consider the lawfulness of Ali’s arrest. There is a dispute as
to why, when and by whom she was arrested.
Her version is that she
was arrested by the two police officers from Nyanga police station
for having been responsible for the
escape of Siya from custody. She
says after her arrest she was taken to where Mawu was. This version
is denied by Van Zyl. According
to his testimony, he arrested her at
Mawu’s house for armed robbery and for the escape of Siya. He
was informed by the two
police officers, whom he had asked to keep
guard of Siya, that Ali was responsible for Siya’s escape.
Ali’s version
that she was arrested for the escape of Siya by
the two policemen who had remained behind at Mawu’s house, is
corroborated
by Mawu’s evidence. In her (Mawu) warning
statement, she mentioned that while at her friend’s place, the
said two police
officers joined them with Ali in the van. Mawu was
also put in the same van. It is clear therefore that Van Zyl could
not have
physically arrested Ali at Mawu’s place. I find that
Ali’s version that her arrest was effected by the two police
officers
from Nyanga police station at Mawu’s place is
probable. On Van Zyl and Mawu’s versions, Ali was asked to lock
up the
house while Mawu took Van Zyl to where the vehicle was. Van
Zyl’s testimony makes it clear that Ali could not be considered
a suspect at that stage. On Van Zyl’s version after locking up
the house, there would have been no reason for Ali to have
remained
at Mawu’s place with the two policemen from Nyanga. She would
have gone to her house which is not far from Mawu’s
house. Van
Zyl would not have found her at Mawu’s house when he later
returned with Mawu. According to Mawu’s warning
statement when
they returned at her house after having been at her friend’s
house Van Zyl wanted to search her house. Mawu
obtained the house
keys from the policeman who had taken their possession from Ali after
her arrest and she opened the house for
Van Zyl. It was not disputed
that Mawu got the keys, with which she opened the house, from the
policeman concerned. Ali’s
version that she was arrested by the
two policemen from Nyanga police station is more logical and
reasonable whereas Van Zyl’s
version is not.
[45] I therefore
find that Ali was arrested by the two policemen from Nyanga police
station. As they were not called to testify
to justify the lawfulness
of Ali’s arrest, I conclude that Ali’s arrest was
unlawful. It is not suggested by the defendant
that the two policemen
were not available to give evidence regarding the arrest of Ali. The
defendant’s failure to call them
as witnesses in my view leads
naturally to the inference that it feared that their evidence would
expose facts unfavourable to
it (Elgin Fireclays Ltd v Webb
1947 (4)
SA 744
(A) at 750; Brand v Minister of Justice and Another
1959 (4)
SA 712
(A) at 715F). The defendant bears the onus to prove the
lawfulness of the arrest. (Gleneagles Farm Dairy v Schoombee
1949 (1)
SA 830
(A) at 840). I agree with Ms Mziba’s submission that Van
Zyl’s evidence does assist the defendant in discharging the
onus as he did not arrest Ali. It is not his evidence that he
instructed the two policemen from Nyanga to arrest Ali in which case
his evidence on why he gave such instruction would have been
sufficient to justify the lawfulness of the arrest. But on the
evidence
he did not arrest Ali nor did he give instructions for her
arrest. It follows therefore that Ali’s arrest and detention
were
unlawful.
[46] In the result,
the following order is made:
1. The defendant is
liable to the plaintiffs for the damages they each suffered as a
result of their unlawful arrest on 26 February
2009 and their
subsequent detention.
2. The defendant is
ordered to pay the plaintiffs’ costs.
D H ZONDI
JUDGE OF THE HIGH
COURT
1
“
12
Freedom and security of the person
(1)
Everyone has the right to freedom and security of the person, which
includes the right-
(a) not
to be deprived of freedom arbitrarily or without just cause;
(b) not
to be detained without trial;
(c) to
be free from all forms of violence from either public or private
sources;
(d) not
to be tortured in any way; and
(e) not
to be treated or punished in a cruel, inhuman or degrading way.”