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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

 

CASE NO. 5571/2007

In the matter between:

 

BHEKI TREASURE GUMEDE                                                                      PLAINTIFF

 

and

 

MINISTER OF SAFETY AND SECURITY                                             DEFENDANT

 

O R D E R

 

The plaintiff’s claim is dismissed with costs, such costs to include any reserved costs.

 

J U D G M E N T

 

Henriques J

 

Introduction

[1]        In this action, the plaintiff seeks damages from the defendant arising from an unlawful arrest, detention and assault by members of the South African Police Services (SAPS) which is alleged to have occurred on 23 September 2006. 

[2]        At the commencement of the trial, I issued an order in terms of uniform rule 33(4), by consent, directing that the trial proceed solely on the aspect of liability.

 

Common cause facts

[3]        The following facts are common cause, alternatively are not disputed:

(a)       The plaintiff was employed at SBV Services (Pty) Ltd (‘SBV’) as a protection officer in the cash-in-transit department.

(b)       On 23 September 2006 at approximately 08h00 at the Montclair Shopping Centre, the plaintiff was the subject of an armed robbery.

(c)        The plaintiff was seated in the driver’s seat of an SBV motor vehicle at the time, which was parked at the Montclair Shopping Centre.

(d)       During the course of the armed robbery, the SBV vehicle was hijacked with the plaintiff inside and it was subsequently abandoned near the Montclair Shopping Centre. The plaintiff’s crew, who were made up of one Katlego, the Standard Bank custodian; R T Zondi (‘Zondi’), the rifleman and Thulani Ngcobo (‘Ngcobo’), the team leader, were left behind at the Montclair Shopping Centre.

(e)       Cash in the sum of approximately R3.9 million was stolen during the course of the robbery.   

(f)        Apart from the SBV vehicle which was subsequently recovered, the monies stolen were never recovered. 

(g)       Neither the plaintiff nor any of his crew were subsequently charged criminally for the offence although shortly after the armed robbery, the plaintiff’s employer suspected him of being involved. It is also common cause that a few days after the incident, the plaintiff sought medical help at Victoria Hospital and that he became intensely suicidal.

 

[4]        The defendant denies that the plaintiff was arrested and assaulted but admits that the policemen, as employees of SAPS, acted within the course and scope of their employment and consequently that the defendant is vicariously liable for the actions of the said employees.   

 

Issues

[5]        The following issues are to be determined:

(a)       Whether or not the plaintiff was arrested without a warrant by members of the SAPS on 23 September 2006;

(b)       Whether the plaintiff was detained at the Cato Manor Police Station at the instance of the defendant’s employees for a period of ten hours;

(c)        Whether, whilst in custody, he was unlawfully assaulted for a period of two hours by the defendant’s employees by, inter alia:

            (i)         stripping him naked;

            (ii)        tying his arms behind his back to a chair and tying his legs to a chair;

            (iii)       covering his face and head with a nylon stocking thus obscuring his vision;

            (iv)       suffocating him with a wet rubber tube by wrapping it around his face;

            (v)        striking him with rubber tubing on his body.

 

Onus

[6]        As the defendant denied the arrest, detention and assault, the plaintiff had the duty to begin and the onus of proof. The plaintiff testified and was the sole witness.

 

The Evidence

[7]        Various exhibits were handed in during the course of the trial, some of which may be referred to during the course of this judgment. He testified that on 23 September 2006, on his arrival at work at approximately 05h00, his supervisor Eddie du Preez (‘Du Preez’) informed him of the rounds he had to do for the day.  The plaintiff then proceeded going through the checklist in respect of the SBV vehicle he would be driving.  On the day in question, he was the appointed driver of the SBV vehicle, and his crew consisted of Zondi who was his rifleman and carried an LM6, and Ngcobo who was the team leader.  Ngcobo’s role was to ensure the safety of the custodian, Katlego, who was an employee of Standard Bank, as he entered and left the various sites with the monies to be deposited and collected. The two of them would be seated at the back of the vehicle.

[8]        After completing the checklist for the SBV vehicle he would be driving, to check for any defects, he handed the checklist to Du Preez.  He testified that he had previously reported that there was a problem with the locking mechanism of the sliding door of the vehicle in that it did not lock.  In normal circumstances, if the locking mechanism of the sliding door had been functioning properly, it would mean that the plaintiff as the driver of the vehicle would be the only person who would be able to unlock the vehicle from the inside. The SBV vehicle he described as an E20 taxi which had had its seats removed.  There were only two single seats for Ngcobo and Katlego to sit on. 

[9]        Katlego had the key for the vault as well as the trunk in which the money was stored and was the only one who could open the vault and the trunk containing the money.  The vehicle had metal railings on the inside which made it bulletproof.  The handle of the sliding door enabled the locking mechanism, and provided it was in working order, prevented the sliding door from being opened from the outside.  The windows of the vehicle were tinted so one could not see in and out of the vehicle and in one part of the window there was a hole through which the occupants of the vehicle could shoot to protect themselves. 

[10]      After leaving the SBV offices in Greyville the plaintiff proceeded to the first round which was at the Montclair Shopping Centre.  He drove to the upper parking level as instructed by the team leader, Ngcobo, who was responsible for deciding where to park and for determining the safest place for the vehicle.  On their arrival at the upper parking level, Ngcobo alighted from the vehicle to do reconnaissance to ensure that it was safe to alight from the vehicle.  Zondi also alighted from the vehicle and stood outside it to protect them and keep watch.   

[11]      The plaintiff and Katlego remained in the vehicle and Katlego prepared the monies inside the vault to place it in the bag to load the ATM.  Ngcobo realised that the pedestrian gate that they used to enter the premises was still locked as it was early.  He reported this to them by means of his two-way radio.  Ngcobo returned to the vehicle and instructed the plaintiff to proceed to the entrance of the mall.  On Ngcobo’s instructions, the plaintiff parked the vehicle with the mall on his left-hand side and Ngcobo alighted from the vehicle and did reconnaissance to see if it was safe for them to exit the vehicle.  Zondi similarly exited the vehicle and stood outside to guard them whilst they were in the vehicle.  

[12]      Ngcobo reported that it was all clear and safe for them to exit the vehicle.  Katlego then left the vehicle with the monies to load the ATM.  At the mall they did this on two occasions without event.  When Ngcobo had taken the last bag and proceeded into the mall, after approximately five minutes, the plaintiff who was seated in the vehicle heard the noise of glass breaking.  This was after Ngcobo had reported they were finished inside the mall and were making their way back to the vehicle.  The plaintiff noticed the barrel of a gun being stuck through the hole and pointed at him. 

[13]      The plaintiff was instructed to look up so he did not look at the person’s face but observed two persons entering the back of the vehicle through the sliding door.  One of the persons could reach the communication system and tried to disarm it.  The second person was trying to open the vault.  The plaintiff was then pointed at with a 9 mm firearm and told to drive the vehicle.  He was told to drive fast and whilst doing so the person pointed the firearm at him which enabled him to notice that the 9 mm firearm being pointed at him was his own firearm which he had been issued with earlier on in the day. 

[14]      After approximately one kilometre, the person instructed him to stop the vehicle and it was then that the plaintiff observed that they were being followed by a silver Toyota bakkie.   The vehicle was a similar colour as the escort vehicles utilised by SBV and the plaintiff initially thought it was an escort vehicle of SBV.  However, the driver of the silver bakkie stopped his vehicle, alighted from it and came and assisted the two assailants to remove the trunk and the vault from the back of the SBV vehicle and place it in the silver bakkie.

[15]      The plaintiff was left inside the vehicle with the doors open and the silver bakkie and its occupants left the scene.  The plaintiff was alone in the vehicle without a cell phone as he was not allowed to carry one whilst on duty.  He was shocked and alighted from the SBV vehicle noticing that his firearm had been taken away by the assailants.  The plaintiff on realising that he was alone tried to flag down oncoming vehicles to seek assistance.

[16]      After a while a white vehicle driven by a female police captain stopped.  The driver of the vehicle approached the plaintiff and asked him what had happened.  The plaintiff testified that he had difficulty speaking to her and narrating to her what had transpired in a coherent fashion.  He was hysterical and crying at the time.  She gave him water to drink which he did. He observed her telephone the police.  The plaintiff estimated that the police arrived after approximately ten minutes.  After a while he noticed an SBV vehicle arrive on the scene and Etienne Botha (‘Botha’) from SBV alight from the vehicle.

[17]      The plaintiff was approached by policemen who were dressed in uniform and who asked him for a description of the suspects’ vehicle.  He told the policemen that he did not see the suspects clearly but the plaintiff was in such a state that he could not speak to them coherently.  He informed them of the direction which the vehicle had driven off in and that he did not know the identity of the suspects.  Whilst at the scene he was approached by a white policeman with a notepad who started asking him questions.

[18]      One of the policemen instructed another policeman by the name Mbatha to take him to the Cato Manor Police Station.  On arrival at the police station he was approached by one of the white police officers who informed him that he ‘must talk’.  They entered an office and he noticed Katlego, Zondi and Ngcobo.  After waiting in the office for a short while Botha arrived and took them to the SAPS provincial office.  They waited there for approximately 45 minutes and were thereafter led to a boardroom where he and his colleagues were subjected to a polygraph test.  Thereafter, Botha took him back to the Cato Manor Police Station at approximately 12h30.  A white police officer called him into an office on his arrival at the Cato Manor Police Station.  There were a number of policemen also busy with his colleagues.  He was told that he must talk and tell them what had happened. 

[19]      He was unable to do so as he was still traumatised from his ordeal. The white policeman intervened and said the following: ‘If you don’t want to talk, then you will shit’. Another police officer, by the name of Nzama, was also present. The plaintiff testified that the white police officer instructed him to remove his clothing and strip until he was naked.  A chair was brought for him to sit on and before he could sit down a white police officer came in with a bucket full of water and a tube and a pantyhose.  His hands were tied behind his back onto the chair, as were his legs.  The white police officer said to him:

‘We are here for you to tell us the truth, and after the treatment that you will be getting, you’ll be watched for you to give a sign by clicking or by stamping your foot down and this will be an indication that you are now wanting to tell the truth.’[1]

 

[20]      The plaintiff testified that the unknown police officer held the pantyhose over his head and Nzama had immersed the tube in water and held the tube over his face so that it was blindfolding him and covering his nose and his mouth so that he could not breathe.  Nzama was standing and holding his knee against the back of the chair so as to balance the chair so that the plaintiff would not fall.  The white police officer who sat opposite him kept on telling him that he had to click to indicate that he was prepared to tell them what had transpired.  The plaintiff testified that whilst in this room the questions started.  He described the situation as everyone asking questions at the same time. 

 

[21]      He testified that at the time there were other policemen who were present but some distance away in the same room.  The questions that were asked repeatedly of him related to where the money was, who took the money, whether he knew the suspects, how much money was taken and where the suspects had gone with the money.  The plaintiff testified that the questions kept on being repeated over and over and as they were being repeated the persons questioning him were getting louder and louder and talking to him all at the same time.  As the questions intensified so too did the pulling of the tube and the pantyhose around his nose and mouth.  Because the plaintiff could not breathe he then complied and clicked his fingers and stamped his foot to indicate that he wanted to talk.

[22]      The plaintiff testified that he did this in order that he could catch his breath but after a while the assaults began again and he felt himself falling to the floor.  The white police officer then put his foot on top of his chest and kept on saying: ‘Talk’.  When he told the policemen that he did not know what they were talking about and he did not know the identity of the robbers the process kept on being repeated.  After a while his only recollection was urinating and defecating.  The white police officer then left the room and he remained in the room with Botha and a black police officer who then  approached him and removed the tube and pantyhose and said to him that he must tell them the truth.  One of the police officers asked him to provide an explanation as how the robbers were able to open the vehicle from the outside. 

[23]      He informed them that the locking mechanism on the vehicle was faulty and as a consequence the sliding door could be opened from the outside.  In addition he told them that Botha from SBV was aware of this.  Botha who was present was asked to confirm this and he did so and he informed them that the door had been defective and reports had been received about the door and the defective locking mechanism.  After a while Botha left the room and the white policeman re-entered the room.  The plaintiff was left sitting on the chair and they ate food in front of him.  He was not offered any food or water even though he requested water on a number of occasions.

[24]      For a long while the plaintiff just sat there waiting for them and at approximately 16h45 he left their offices. His hands were untied and he untied his feet and after a while the white police officer came in and poured water into the bucket and gave him a mop and Handy Andy and told him to clean up the room especially where he had messed.  He cleaned the floor properly and dressed into his uniform and sat on the lawn outside.  The police officers left him and entered into an office and at that stage his manager, Du Preez, fetched him and they drove to the SBV offices in Greyville.  Whilst on the way to Greyville, Du Preez received a telephone call and he then asked the plaintiff for his car keys and his cell phone.  The plaintiff handed over his car keys.  On their arrival at the Greyville offices, Du Preez took the keys and went to his vehicle and opened it.  Nzama was already there waiting for them.  Nzama confiscated the plaintiff’s Nokia 6820 which was inside the plaintiff’s vehicle, and whilst they stood at the vehicle Nzama informed him of his name and rank and told the plaintiff that if he heard anything more about the incident he was to contact him and inform him thereof. 

[25]      The plaintiff testified that he climbed into the passenger seat of his vehicle and slept.  He noticed a colleague of his, Tsietsi, arrive and Tsietsi drove him home as he was unable to drive.  A day or two after the incident, the plaintiff testified that he attended the Victoria Hospital where he was admitted and subsequently seen by Doctors Moolla and Mansoor, a psychiatrist.  He was admitted in hospital until his discharge on 29 September 2006.  That concluded the case for the plaintiff.

[26]      The first witness for the defence was Du Preez, an employee of SBV Services (Pty) Ltd SBV, which provides security guard services for cash in transit.  . He testified that he is currently employed by SBV as a Logistics Manager but at the time of the incident he was employed as the Chief Protection Officer.  His duties would be to schedule the work for the day and assign crew to attend to the respective runs; in other words he would manage the day-to-day operation of the business.  This would ensure that persons were allocated to particular vehicles as well as being issued with the necessary equipment according to the company’s minimum standard operating procedures.

[27]      In 2006 he was the plaintiff’s supervisor and he confirmed that he was at home in the morning at the time the incident occurred when received a telephone call from his offices advising him of the armed robbery.  He then travelled to the offices. He confirmed that the vehicle which the plaintiff described was a Toyota Combi which had two sliding doors, one is the normal standard outside sliding door and on the inside there is an armoured sliding door.  The lock is manufactured in such a way that when one closes the door it automatically locks.  The crew men would carry the key for the outside locking mechanism. On the vehicles’ dashboard, located near the driver, there were two buttons, one that would unlock the normal outside sliding door, and the other that would unlock the inside armoured sliding door.  

[28]      In the event of both the buttons not working one could still manually operate the doors without comprising the security of the vehicle.  To manually override the outer sliding door you have a pin that goes into the door and when you unlock it, it pops up.  You would lift the pin and you would be able to open the outer sliding door from the inside. The armoured sliding doors also have the same locking mechanism that could be disengaged with the button and if the button did not work there was a lever on the inside that one could lift up and push the handle outside which would slide open the armoured door.  The handle on the armoured door was on the inside. 

[29]      He confirmed there was nothing separating the front portion of the vehicle where the driver and his passenger sat from the back of the vehicle.  The armoured door and the normal sliding door were accessible to any of the passengers seated in the vehicle and in front of the vehicle.  The driver could, whilst seated in the driver’s seat, basically turn his body to the left and lean back and would have access to both the armoured door and the outside sliding door. 

[30]      On 23 September 2006, his second-in-charge would have checked the vehicle to see that it was operating.  In addition the driver of the vehicle would also have to check the vehicle to ensure that the minimum security requirements were met.  He confirmed that he last checked the vehicle on Friday, 22 September 2006 and it could not be so that both the sliding door and the armoured door were not operational.  He also indicated that he disputed the plaintiff’s evidence that on the day of the robbery the normal sliding door and armoured sliding door were not operational.  He indicated that each vehicle is inspected after a robbery to make sure that the vehicle has been dispatched with the minimum security requirements.  Had the company inspected the vehicle and found that it did not meet the minimum required security standards, then he and his second-in-charge would have been dismissed from their positions. 

[31]      He confirmed that a security guard performing their duties is allowed to take company issued equipment and is not allowed a cell phone or a radio.  The only person who would be entitled to have a cell phone would be the Standard Bank custodian in the vehicle who was not employed by SBV who would have a cell phone issued to him by the bank.

[32]      He confirmed that as part of the employment contract with SBV and at management’s discretion, employees may be required to take polygraph examinations.  He confirmed that in respect of this incident, the polygraph examination was arranged by management and the examiner was not employed by SBV.  He indicated that he was not aware of which company undertook the specific polygraph tests emanating from this incident but knew that the examiner who conducted the polygraph was Vic Panday who is not employed by SBV. 

[33]      Although he was not present at the time the polygraph tests were conducted he was informed by management that two of the three staff members, had failed the polygraph examinations, and that the plaintiff was one of those who had failed.  He testified that his involvement on the day of the incident was to act as a driver. He was asked to leave his home and go to his office to be on standby to receive further instructions.  From his office he thereafter was instructed to go to the Serious and Violent Crime Unit in Cato Manor.  He was informed by Botha that the staff had to attend polygraph examinations.  Botha left with the plaintiff to go to the polygraph examination and Du Preez waited for one of the other staff members to complete his statement with SAPS and then took him to the SAPS provincial office for his polygraph examination.

[34]      By the time of Du Preez’s arrival with the other employee at the SAPS provincial office, the plaintiff had completed his polygraph examination and Du Preez was then asked by Botha to return the plaintiff to the Serious and Violent Crime Offices at Cato Manor.  When he arrived at Cato Manor with the plaintiff, the third SBV employee had completed his statement.  He then left the plaintiff at the Cato Manor police offices and took the third employee to the SAPS provincial office for his polygraph examination. 

[35]      He confirmed that after the employees had conducted their polygraph examinations he was responsible for travelling with them to SAPS offices in Cato Manor and thereafter returning them to the SBV offices after the interview with the police.   He testified that when he returned to the Cato Manor Police Station to transport the plaintiff back to Greyville, he found the plaintiff standing outside one of the offices. Du Preez not speak to the plaintiff on their way back to Greyville and neither did the plaintiff speak to him. 

[36]      He also indicated that as someone who travelled with the plaintiff in the vehicle there was nothing untoward about the plaintiff – he had no smell or odour indicating that he had been incontinent of faeces.  On their arrival at the SBV offices at Greyville he dropped the plaintiff off at road level.  He then proceeded to the building where they park their vehicles and when he returned to his office he noticed the plaintiff sitting inside his own vehicle.  One of the fellow employees of the plaintiff took him home. 

[37]      He indicated that he could not remember having taken the plaintiff’s keys to the plaintiff’s private vehicle and opening it.  In addition he confirmed that no disciplinary steps were taken against the plaintiff as there was insufficient evidence to hold an internal disciplinary enquiry.  He confirmed that a few days after the incident, he was advised that the plaintiff was admitted to hospital and was being treated for depression.  The plaintiff then went on temporary medical board and thereafter on full medical board.  The plaintiff subsequently resigned from the company. 

[38]      Regarding the other two employees he confirmed that nothing transpired in relation to Ngcobo as there was no evidence whatsoever against him.  The third employee involved in the incident, Zondi, who also failed his polygraph examination, was regarded as a ‘high-risk employee’.  Someone is described as a ‘high-risk employee’ if it appears that they pose a risk to the company in that there is a possibility that they may collude with robbers to rob the company or that they would wilfully not follow security procedures which would ultimately cause a loss to the company.

[39]      High-risk employees are managed on a day-to-day basis and they are not allocated duties that involve them coming into contact with huge amounts of money.  During cross-examination he confirmed that for the period of 2004 to 2006 there was a spate of armed robberies specifically involving SBV vehicles.  He indicated that his involvement with the police on the crime scenes would be to establish whether any internal security procedures had been breached.  He indicated that the Serious Violent and Crime Unit in Cato Manor was involved in the investigation of these spate of armed robberies. 

[40]      He confirmed that when the vehicle arrived back at the premises he had inspected it to establish that everything was okay.  The window of the sliding outer door had been broken out.  During cross-examination a statement from the senior of the SBV team, Shange, was put to him in relation to the problems experienced by the SBV vehicle involved in the robbery.  He confirmed that that report recorded that the override button that was normally used to open the sliding armoured door was not working and had to be opened by the driver at the door himself.  Du Preez indicated that this was not a problem as regardless of whether the two buttons work on the dashboard, the door can still be locked and still be opened manually on the inside by the driver.

[41]      In response to questions from the court, he confirmed that even though some employees may have failed the polygraph test, they do not regard them as suspects but rather as high-risk employees.  This is because they leave the investigation to the SAPS.  He also confirmed that at all times Botha was standing with him whilst the plaintiff was being interviewed by the policemen.  They were outside on the tarred driveway and not inside.

[42]      Jan Johannes Eugene Van Tonder (‘Van Tonder’) testified that on 23 September 2006 he was employed as a Captain in the SAPS attached to the Organised Crime Unit, Cato Manor.  On the day of the incident he received a call from radio control informing him of a cash-in-transit robbery of an SBV vehicle which had occurred at the Montclair Shopping Centre.  He was informed that the SBV vehicle was subsequently recovered near the Spar at the Yellowwood Park Shopping Centre.  After informing other SAPS members on standby duty with him of the incident, he proceeded to the Yellowwood Park Shopping Centre and on his arrival established who the plaintiff was.

[43]      During his initial interview with the plaintiff, he informed him that he was the driver of the SBV vehicle which had been hijacked from the Montclair Mall and that he had been taken at gunpoint to the Yellowwood Park Shopping Centre where the vehicle was abandoned.  He proceeded to take a detailed statement from the plaintiff based on what he had informed him at the time.[2]  According to an entry in his pocket book, he was at the scene for approximately two hours from 08h30 to 10h30.  Thereafter he returned to the Cato Manor Police Station as he had an arrangement with Mr Smith from the Fidelity Guard group about a possible cash-in-transit robbery at the Wardkiss hardware store at Sydney Road. 

[44]      He proceeded to the Wardkiss hardware store in Sydney Road and monitored the pick up by Fidelity Guards.  He had left the Cato Manor Police Station and returned just before 12h00.  On his return he busied himself with administrative duties and at approximately 13h00 the SAPS team that had attended the SBV armed robbery scene arrived and interviewed witnesses.  At the time Botha of SBV had informed him that some  employees had failed a polygraph test earlier on and that SBV needed the assistance of the police to question them.  Among the  employees whom Botha informed him had failed the polygraph test was the plaintiff.

[45]      He described the Cato Manor Organised Crime offices at the Cato Manor Police station as open plan with two offices.  The investigating officer occupied an office on one side and his was on the other side next to it with a space in between the two offices.  Inspector Nzama was the appointed investigating officer in the matter.  Initially the persons present at the time of the interview were  , police officers Nzama, Makhanya, MacInnes, Reserve Constable Coomb and himself and Botha, who arrived some time later.   At the time of the interview the employee was seated in the chair and an officer sat at a desk taking notes.  The rest of the SAP members were in chairs in a circle around the witness in close proximity to the plaintiff.

[46]      Van Tonder testified that all persons including investigators had access to the plaintiff’s statement and asked him to repeat his version.  At the time if any one person noted any discrepancies they would question the plaintiff about this and ask him for clarification.  Questions were posed to the plaintiff by all SAPS members present but not all at once and not all at the same time.   He testified that the purpose of the questioning was to obtain clarity as to what had transpired.  The interview process involving all three employees lasted until approximately 15h30.  All employees were interviewed and he could not recall the exact amount of time spent on the interview with the plaintiff. Van Tonder testified that Botha was present for most of the Interview with the plaintiff.

[47]      He indicated that they asked the plaintiff questions and at times he recalled becoming annoyed with the plaintiff as it appeared that the plaintiff was not replying and not being very co-operative.  He confirmed that at some point in time he vented his frustration by raising his voice to the plaintiff and informing him to tell the truth.  At 15h30 the plaintiff was released and it appeared to him as though there was nothing wrong with the plaintiff although he did recall that the plaintiff had claimed that he had been assaulted.  He did not observe any members present assaulting the plaintiff and denied that he had at any stage assaulted the plaintiff. 

[48]      He testified that on his arrival at the scene when he initially interviewed the plaintiff, he did not gain the impression that the plaintiff was distraught or upset.  He observed the plaintiff as being calm and the plaintiff provided him with a detailed statement.  This was after the plaintiff had initially briefly informed him what had transpired and he asked the plaintiff to explain what exactly had occurred. 

[49]      He testified that at all times during his initial interview of the plaintiff he questioned the plaintiff for the purposes of taking down a detailed witness statement.  At all times during his interaction with the plaintiff, the plaintiff conversed with him in English and did not express any difficulty in doing so.  He at all times considered the plaintiff to be a witness and not a suspect.  It was for this reason that he did not warn him of his constitutional rights.  He had asked the plaintiff if he was prepared to make a statement and the plaintiff indicated he had no difficulty in doing so and proceeded to do so.

[50]      Botha, who is employed as an ATM Manager for SBV Services, KZN Region, confirmed that at the time of the incident he was a member the Tactical Support Unit.  The unit exists within SBV and provides support on the road to SBV employees in the KZN area.  On the morning of 23 September 2006 his office advised him of the incident which occurred at the Montclair Shopping Centre.  Because he was the manager of the unit he attended at the shopping centre.  The vehicle was responsible for replenishing the Standard Bank ATMs.  On his arrival at the shopping centre he met with the crew of the SBV vehicle who were on the scene.  They advised him briefly of what had transpired and informed him that the SBV motor vehicle and cash had been hijacked.  A short while later he was advised on the radio that the SBV vehicle was recovered near the Spar at the Yellowwood Park Shopping Centre.

[51]      He proceeded to the Yellowwood Park Shopping Centre and estimated that he arrived between between 08h30 and 08h45.  On his arrival, the SAPS were already on the scene and he recollected seeing Van Tonder and other SAPS officers.  He also observed the SBV vehicle parked on the pavement with the plaintiff inside the vehicle.  He interacted with the plaintiff and asked him what transpired as he was the only employee in the vehicle who could inform him of what had occurred as the other members of his crew were left behind at the Montclair Shopping Centre and were not in the vehicle at the time of the hijacking.

[52]      He testified that the plaintiff was very reluctant to speak, was overly calm and uncooperative in telling him what had occurred.  He did recall that the plaintiff informed him that he had been assaulted by his assailants and abducted by them.  He did not notice any visible injuries to the plaintiff and neither did the plaintiff request any medical assistance at the time.  As a consequence of the plaintiff’s reluctance to cooperate, he was very upset as the plaintiff had full control of the vehicle and cash and it appeared that the plaintiff was reluctant to come forth and provide them with an explanation as to what had occurred.  He confirmed that he did not spend more than one and a half hours at the secondary scene.

[53]      He then proceeded to the Cato Manor Police Station after arrangements had been made for the plaintiff and other members of his crew to be taken there by management.  On his arrival there, he instructed persons to arrange for a polygraph test to be conducted on the employees.  There was no officer available at the SBV offices to conduct the polygraph test and he consequently sourced a board room at the provincial offices of the SAPS.  He was responsible for transporting the plaintiff and his crew members to the provincial SAPS offices for a polygraph test to be conducted.

[54]      The polygraph tests took place from approximately 11h00 and each test lasted approximately 45 minutes to an hour per member of the crew.  The plaintiff and his entire crew were subjected to a polygraph test.  The plaintiff and two members of his crew failed the polygraph test and it was apparent that there were discrepancies in the statements taken from them as to how the incident occurred.  In addition an explanation was required in order to ascertain how it was that the assailants were able to access the SBV vehicle, hijack it and steal the money.

[55]      He testified that after he had transported the plaintiff and his crew members who failed the polygraph test to the Cato Manor Organised Crime offices at the Cato Manor Police station, they were interviewed by members of the SAPS in his presence as well as other SBV employers were present.  He sought the assistance of SAPS to ascertain exactly what had transpired.  He corroborated Van Tonder’s evidence as to how the plaintiff and other employees were seated in the room.  He confirmed they were questioned repeatedly regarding what they had said in their statements and what they subsequently said during the course of questioning.  He confirmed they were questioned repeatedly and that it was a heated exchange.  In his view, it was similar to a verbal interrogation.  Everyone present asked questions. 

[56]      He testified that the plaintiff’s attitude at the time was that he refused to disclose any information and it was thus unclear as to how the assailants were able to access the SBV vehicle which the plaintiff was in control of.  The questioning of all three employees lasted a few hours and although he could not recall exactly what time the questioning and interviews finished, he estimated that it was by either 15h00 or 16h00.

[57]      All employees including the plaintiff were treated in exactly the same way and were what he termed ‘cross-questioned’.  Questions were heated and when it became obvious that they were not going to get answers to their questions all three employees including the plaintiff were taken back to the SBV offices in Greyville and he returned to his offices in Westmead.

[58]      He confirmed that during the questioning session the plaintiff was extremely uncooperative but did not complain or ask for anything.  He confirmed that what concerned him was that after perusing the statements it was unclear as to how the robbers were able to open the door.  He testified that the door did not open from the outside and only the plaintiff who was seated inside the vehicle had access to open and close the doors.  Even if the locking mechanism on the door was faulty, and had been reported, there were two options open to the plaintiff.  The SBV vehicle could still be used and the driver would ensure that the door was locked from the inside which would involve the plaintiff simply leaning over and stretching back and locking the door from the inside.  Alternatively, another vehicle could be utilised.

[59]      He disputed that the plaintiff was detained against his will and or assaulted.  He testified that they needed answers and sought the assistance of the SAPS members of Cato Manor. He agreed that the plaintiff was inundated with questions in loud voices.  He disputed that the plaintiff was denied food or water or requested anything.  He testified that had the plaintiff indicated he wanted anything it would have been provided.  He also confirmed that at the time of this incident there were a number of cash-in-transit robberies which were taking place and he was extremely frustrated with the conduct of the plaintiff as the plaintiff was uncooperative and repeatedly avoided answering questions. 

[60]      He said that normally a driver in the situation like the plaintiff would explain what transpired to allow SBV to take steps to further the investigations and try and apprehend the robbers and more importantly recover the money.  What also concerned him was that there were security measures in place for SBV purposes and also for insurance purposes.  Should the insurance company find any negligence or failure to comply with internal procedures then the insurance company would not cover the loss of the money that was stolen.  He confirmed that he could not recall if Van Tonder was in possession of the plaintiff’s statement and indicated that even though he was aware the plaintiff made a detailed statement to Van Tonder, he had not seen it.  He regarded the plaintiff as the prime suspect because of his conduct.

[61]      Nzama confirmed that he was the investigating officer in the matter, and was stationed at the Cato Manor Organised Crime Unit at the time.  He was on-call on the day in question and received notification of a robbery and hijacking at the Montclair Shopping Centre.  On his arrival at the Montclair Shopping Centre at approximately 10h00, he saw members of the SAPS Montclair present and noticed that the area had been cordoned off.  After speaking to the members of the SAPS Montclair, he was apprised of the hijacking and robbery of the SBV vehicle.  He had also been informed that the vehicle had been recovered in Yellowwood Park and after interviewing the persons present at the scene at the Montclair Shopping Centre he proceeded to the Montclair Police Station to register the docket.  After registering the docket he then proceeded to the offices at Cato Manor and arrived just before 13h00.   

[62]      He prepared the docket and started making entries and reports.  Whilst doing so, Botha of SBV arrived with three employees and sought their assistance to question these employees as they had failed their polygraph tests.  Van Tonder was inside his office and Botha handed the plaintiff over to Van Tonder.  They thereafter all proceeded into an open plan space and sat down at a table.  They were joined by the  members of the SAPS present and Botha and all sat in a circle and started questioning the employees.  All the employees present were witnesses to the incident and they wanted to establish information relevant to the investigation from them.  Nzama corroborated Botha and Van Tonder’s evidence in relation to the layout of the offices and how they sat at the time of interviewing the employees.

[63]      He confirmed that the employees were questioned about the incident by all the SAPS members that were present.  The plaintiff only answered some of the questions but did not answer other questions posed to him.  He confirmed that Van Tonder had taken a statement from the plaintiff and was questioned about the contents of the statement to clarify the aspects that were not clear.  He confirmed that on his arrival at the offices, Botha had informed him that all three employees had failed their polygraph test and the purpose of questioning them was to establish and verify what they had said during the interviews when compared to their statements to see if they could provide any further information to assist in the investigation to enable SBV as well as SAPS to establish precisely what had occurred.

[64]      He confirmed that the plaintiff and other employees were treated as witnesses and not as suspects.  The focus of the process was a fact-finding process and the purpose was to compare what was said in their statements and what emanated from their answers to the questions posed to them.  He testified that the plaintiff’s statement had been taken from him soon after the incident and in the area where the SBV vehicle had been abandoned.  The plaintiff was probably still frightened and traumatised by what had transpired. 

 [65]     Because a huge amount of money was involved it was important to verify the plaintiff’s version and to establish exactly what had transpired.  He confirmed that he could not recall the exact time the interview of the plaintiff concluded and the plaintiff looked okay.  The interview was conducted in English as the plaintiff could speak and understand English well and he did not indicate that he had a problem communicating with them in English.   The plaintiff was a witness and not a suspect and in consequence thereof his rights were not explained to him at any stage. He also confirmed that Botha was present during the interview with the plaintiff.

[66]      That then was the evidence of the defendants.          

 

Submission of the parties

[67]      Mr Naidu, who appeared for the plaintiff, submitted that the plaintiff cooperated at the outset with the police in the investigation.  He had been handed over to SAPS members at the Cato Manor Organised Crime Unit by his employees and was interrogated.  He submitted that even though the evidence of the police officers who testified was that they regarded the plaintiff as a witness and not as a suspect, Botha’s evidence was clear.  He regarded the plaintiff due to his uncooperativeness as the ‘prime suspect’ and did not regard him as a witness. 

[68]      According to Botha’s evidence what transpired at the Cato Manor Organised Crime offices was an interrogation and the plaintiff was treated as a suspect.  He was believed to be complicit in the crime and the purpose of their interrogation, according to Mr Naidu, was to cause the plaintiff to implicate himself in the commission of the offence.

[69]      In addition he submitted that all the defence witnesses confirmed that the plaintiff’s constitutional rights were not explained to him and he was not told that he could leave at any stage.  For all intents and purposes the plaintiff was treated as a suspect.  The purpose of the questioning was to extract a confession from the plaintiff.  He submitted that on the evidence the plaintiff was in the custody of the police at the police station for approximately three to four hours.  Even though it was possible that the actual questioning process may have been shorter, it is clear that the plaintiff was detained for a period of time until such time as he and the other employees who had failed the polygraph test, were taken back to the Greyville offices of the SBV.

[70]      He submitted that even though the plaintiff was a single witness his version when compared with that of the defence witnesses was more probable.  He submitted that when the evidence presented is viewed holistically, the plaintiff was in essence tortured and there can be no doubt that he was assaulted by the members of the SAPS in the presence of SBV employees.  He was never informed that he was a witness and that was at liberty to leave whenever he wanted to.  He submitted that what corroborates the plaintiff’s version is the fact that despite the plaintiff having provided a detailed statement, no satisfactory explanation was given during cross-examination of the defence witnesses as to why it was necessary to obtain further clarification regarding the contents thereof. At the conclusion of his submissions Mr Naidu handed up a draft order.

[71]      Mr Kisten, who appeared for the defendant, submitted that there was a factual dispute and as such the matter fell to be determined based on the credibility of the respective witnesses.  The court needed to decide the matter having regard to the test laid out in Stellenbosch Farmers’ Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA).  If one had regard to the plaintiff’s particulars of claim specifically the allegations contained in paragraphs 6(a) to (e), the plaintiff did not plead that he was struck on his body.  This was a crucial aspect which was missing from his evidence when he testified and it affects his credibility as a witness.  If one accepts that he was a single witness to the event and has regard to the J88[3], there was no record of a single mark to the plaintiff’s body.  This must affect his credibility as a witness and furthermore the reliability of his evidence regarding the assault.

[72]      Having regard to the plaintiff’s evidence in relation to what transpired during the alleged assault,[4] the plaintiff testified that whilst he was being assaulted with the tube placed over his head, Nzama held the back of the chair so that it would not fall.  The plaintiff testified that the pantyhose was tied such that he was blindfolded.  The question thus arises as to how the plaintiff would have been aware that it was Nzama holding the chair if he could not see his assailants.  He submitted that the plaintiff’s version was contrived.

[73]      In addition, the evidence of all the defence witnesses was consistent.  Van Tonder, Botha and Nzama confirmed what transpired.  All the defence witnesses were clear that no assault or ill-treatment of the plaintiff occurred.  Even though they regarded him as a witness and the questioning of the plaintiff and the other employees was vigorous and they were shouting, this did not mean that the plaintiff was tortured.  In addition the reliability of the evidence of the defence witnesses must be seen against the fact that they conceded certain aspects during their evidence.  Here he specifically referred to the evidence of Van Tonder and Botha that they became frustrated and angry with the plaintiff regarding his failure to cooperate and fully explain what had transpired.  They felt that he was not being forthright and honest as to what occurred.

[74]      It was argued that nothing can be said to be wrong with this approach, and their apparent frustration in light of Botha’s evidence regarding the uncertainty of whether the insurance company would pay out for the loss of the cash was reasonable.  There was also nothing wrong with the fact that, given the prevailing circumstances and the undisputed evidence regarding the number of cash-in-transit robberies that had occurred at the time, and the evidence of Van Tonder as to what transpired in relation to Fidelity Guards on the morning of the incident SBV sought the assistance of SAPS.  In essence this was to enable SBV as well as SAPS to find out exactly what had transpired.

[75]      Mr Kisten argued that the evidence of the defendant’s witness was clear and unchallenged.  Had the plaintiff wanted anything to eat or drink he could have asked for it and it would have been provided to him.  He submitted that the plaintiff’s version was improbable and contrived and the evidence of the defendant’s witnesses ought to be accepted when viewed in light of the test in Stellenbosch Farmers Winery.  Consequently, he submitted that the action ought to be dismissed with costs.   

[76]      Subsequent to the hearing of the matter and in preparation of the judgment and having regard to the oral submissions made by the respective parties’ legal representatives, it became apparent that neither of the parties had addressed me on certain authority which I encountered during the course of research in preparation of the judgment. 

[77]      In consequence thereof an email was despatched on 28 January 2019 to the respective parties requesting them to file supplementary heads of argument dealing with  aspects not canvassed during their address  as well as the authority referred to in my correspondence.  These submissions were to be made by 27 February 2019.  Only the plaintiff complied with such request on 22 February 2019 and submitted written heads of argument.

[78]      Since the defendant’s attorneys of record, the State Attorney, failed to comply with such written request, follow up emails were dispatched to the offices of the State Attorney, specifically the attorney dealing with the matter, Mr Bhagwan.  A response was received by my registrar, Ms Matthewson from his offices on 3 April 2019, subsequent to two further email reminders being dispatched by her.  He indicated that the trailing email as well as the email of January 2019 had only come to his attention in April 2019.

[79]      He indicated he would discuss the contents thereof with counsel and revert.  He subsequently reverted requesting a copy of the transcript of the proceedings and my registrar responded indicating that he should liaise with the plaintiff’s attorneys of record for the transcript. 

[80]      Since the email of 4 April 2019, the defendant has not provided any written submissions and neither has there been any indication when such submissions would be filed.  Consequently, I have no alternative but to finalise the judgment in the absence of any written representations or a request to make oral representations by the defendant.

[81]      In doing so I have considered the following further written submissions of the plaintiff. Mr Naidu in these further written submissions indicates the following:

(a)       that at the scene of the robbery on 23 September 2006, at approximately 08h30, the plaintiff was ‘interrogated’ by Van Tonder which culminated in an affidavit being deposed to by the plaintiff while the parties were still at the scene of the robbery.  The plaintiff was so ‘interrogated’ at a time when he had been through a traumatic experience. Immediately after being so interrogated and deposing to the affidavit on the instructions of Van Tonder, the plaintiff was taken by Mbatha to the Cato Manor Police Station;

(b)       the affidavit which the plaintiff had deposed to was a witness statement and it was never asked of him whether he was willing to be taken to the police station;

(c)        the plaintiff did not have freedom of movement at the Cato Manor Police Station and after a about two hours he was taken by Botha for the polygraph test which was conducted by a member of the SAPS [5]at the provincial offices of the SAPS in Durban;

(d)       after the polygraph test he was taken back to the Cato Manor Police Station and was interrogated by a group of police officers as well as his employers from about 12h30 to 04h45;

(e)       the suggestion by the defendant that the plaintiff was questioned as a witness is unsustainable as the plaintiff had already been questioned at the scene of the crime by the police and had deposed to an affidavit indicating exactly how the robbery had occurred;

(f)        when Du Preez testified, he gave the impression that he did not know what was happening inside the Cato Manor Police Station as both he and Botha were outside.  However, according to both Botha and Van Tonder, Botha was inside and present in the room when the plaintiff was being interrogated;

(g)       the plaintiff was never informed that he could remain silent, nor were his constitutional rights explained to him;

(h)       the purpose of the interrogation appeared to be geared towards the plaintiff implicating himself, hence the reason why it lasted for four hours;

(i)         from the time the plaintiff was interviewed by Van Tonder at the scene until the time he left Cato Manor Police Station later that afternoon he did not eat or drink anything and neither was he offered anything by the police officers;

(j)         although the plaintiff was never formally charged, it is for these reasons that the plaintiff submits he was arrested, detained and interrogated and that such arrest and detention was unlawful;

(k)        the plaintiff’s version in relation to the assault must be accepted as the defendant’s witnesses were not at all honest.

 

Analysis

[82]      I pause now to consider the aspect of what constitutes an arrest.  The Oxford South African Concise Dictionary 2ed (2010) defines an arrest as ‘to seize (someone) by legal authority and take them into custody’.

 

Arrest

[83]      Section 39 of the Criminal Procedure Act 51 of 1977 (‘the CPA’) deals with the manner and the effect of an arrest.  The section reads as follows:

‘(1)       An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body.

(2)        The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.

(3)        The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.’

[84]      An arrest involves the restriction of an individual’s freedom. Section 12(1)(a) of the Constitution provides that:

‘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.’. 

 

How must an arrest be executed?

[85]      Normally contact with a person’s body or person is a prerequisite for a valid arrest.  The physical touching of a person to be arrested can be dispensed with only where the suspect unambiguously subjects himself to the person attempting to arrest him.  A person’s conduct can support an inference that he submits to being taken into police custody.  That would be the case for example where a person readily accompanies the police and climbs into their vehicle in order that he be taken to the police station.[6]

[86]      Whether or not an arrest is lawful is closely connected to the facts of each matter.  Once the defendant admits an arrest or a plaintiff proves an arrest, then the onus to prove that an arrest was lawful rests on the arresting officer.[7] An arrest effected with the intention not to bring a person before a court at all, and for other reasons will not be a lawful arrest, for example the intention to intimidate and inconvenience a person to desist from illegal activities is not sufficient to constitute a lawful arrest.  However, if the person effecting the arrest intends to bring the arrested person before a court to be tried and convicted, the arrest will be lawful.  Consequently, it would appear that even the most reprehensible motive does not render unlawful an arrest carried out with the correct intention.[8]

[87]      In Tsose v Minister of Justice & others 1951 (3) SA 10 (A) at 17C-D, Schreiner JA, in following the reasoning in MacDonald v Kumalo 1927 EDL 293 at 301 stated the following:

‘If the object of the arrest, though professedly to bring the arrested person before court, is really not such, but is to frighten or harass him and so induce him to act in a way desired by the arrestor, without his appearing in court, the arrest is, no doubt, unlawful’. 

 

[88]      In Rex v Mazema 1948 (2) SA 152 (E) said the following at 154: ‘A person is under arrest as soon as the police assume control over his movements.’  In that matter it was contended that the appellant had been detained for purposes of an investigation and that consequently he had not been arrested.  The court per Hoexter J held that there is no difference between detaining someone for purposes of investigation and detaining someone on suspicion where no specific charge has yet been formulated against him.

[89]      It appears that the question as to whether or not the police assumed control over a person with the intention to arrest is a factual one. It appears that a similar view was adopted in Khan v S 2010 JOL 25782 (KZP) para 12 where Swain J said the following:

‘On the facts of this case it cannot be said that the police at the relevant time had assumed control over the movement of the appellant . . . with the intention to arrest her’.

 

However should the police take a person into custody and treat them as a suspect for purposes of questioning, such would not be an arrest. 

 

[90]      The purpose of an arrest has been described as being to bring a suspect to trial, although the arrestor has a limited role in that process.[9]  In the Minister of Safety & Security v Sekhoto & another [2011] 2 All SA 157 (SCA) para 28 the court was of the view that once the ‘required jurisdictional factors are present’ then the discretion whether to arrest a suspect arises.  The court held that the decision to arrest must be based on the intention to bring the arrested person to justice and that one must distinguish between the object of the arrest and the arrestor’s motive. In this regard, it was held that:

‘the validity of an arrest is not affected by the fact that the arrestor, in addition to bringing the suspect before court, wishes to interrogate or subject him to an identification parade or blood tests in order to confirm, strengthen or dispel the suspicion’.[10]

 

[91]      The court also held that it is a general requirement that any discretion must be exercised in good faith, rationally and not arbitrarily.[11] In considering the distinction that must be drawn between the object of an arrest and the arrestor’s motive[12], the court considered the remarks by Schreiner JA in the decision of Tsose v Minister of Justice & others 1951 (3) SA 10 (A) at 17.   Our courts have held that even if the motivation for detaining or arresting a person is malicious, but the intention is to bring the arrested person before a court to be tried and convicted, the arrest will be lawful.  Consequently, even the most reprehensible motive cannot render unlawful an arrest which is carried out with the correct intention, see Tsose at 17.

[92]      What constitutes detention? Section 50 of the CPA deals with this and the period in which a person may be detained.  The sections read as follows:

'(1)(a)   Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.  

 (b)    A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.

(c)     Subject to paragraph (d), if such an arrested person is not released by reason that — 

(i)   no charge is to be brought against him or her; or

            (ii)  bail is not granted to him or her in terms of section 59 or 59A,

he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.

(d)     If the period of 48 hours expires —

          (i)   outside ordinary court hours or on a day which is not an ordinary court day, the            accused shall be brought before a lower court not later than the end of the first court           day;

             . . .

   (6) (a)   At his or her first appearance in court a person contemplated  in subsection (1)(a) who —

            (i)   was arrested for allegedly committing an offence shall, subject to this subsection and section 60 —

   (aa)   be informed by the court of the reason for his or her further detention; or

                   (bb)   be charged and be entitled to apply to be released on  bail; . . . .'

 

[93]      This section must be read together with the provisions of section 35(1)(d), (e) and (f) of the Constitution, which read as follows:

   '(1) Everyone who is arrested for allegedly committing an offence has the right —

   . . .

(d)  to be brought before the court as soon as reasonably possible, but not later than —

(i)   48 hours after the arrest; or

                     (ii)   the end of the first court day after the expiry of the 48 hours, if the 48 hours       expire outside ordinary court hours or on a day which is not an ordinary court day;  

              (e)   at the first court appearance after being arrested, to be charged or to be      informed of the reason for the detention to continue, or to be released; and   

              (f)   to be released from detention if the interests of justice permit, subject to        reasonable conditions.'

 

[94]      In Mashilo & another v Prinsloo 2013 (2) SACR 648 (SCA) para 13, the Supreme Court of Appeal held that s 50(1)(d) of the CPA was intended to ‘extend the 48-hour outer limit during which an arrested person could be detained’ and obliges police to bring a person to court as soon as is reasonably possible.[13]

 

[95]      The question which arises for determination in this matter in light of the defendant’s plea and defence is whether the plaintiff has been ‘deprived of his freedom’ in any way with the intention to assume control over his movements.  Once the plaintiff establishes that he has, then the onus shifts to the defendant to show that the deprivation of freedom was not arbitrary and was justified. See in this regard Minister of Safety & Security and Another v Swart 2012 (2) SACR 226 SCA para 19.

[96]      In addition the lawfulness of an arrest or the deprivation of individual freedom of movement is closely connected to the facts of each situation.  In Minister of Safety & Security v Van Niekerk 2008 (1) SACR 56 (CC) para 20 the court held the following:

‘I conclude therefore that nuanced guidelines already exist.  In the circumstances it would not be desirable for this court to attempt in an abstract way divorced from the facts of this case, to articulate a blanket, all-purpose test for constitutionally acceptable arrests.  As the guidelines themselves underline, the lawfulness of an arrest will be closely connected to the facts of the situation.’  

 

[97]      The purpose of an arrest is to ensure that a person is taken to court, in Minister of Safety & Security v Sekhoto, after considering the jurisdictional facts for an arrest without a warrant, the Supreme Court of Appeal held that the decision to arrest must be based on the intention to bring an arrested person to justice.

[98]      An arrest or a detention will be unlawful if the purpose thereof is to force or compel a suspect to make a warning statement and not to secure his attendance in court.  In such an instance the detention or arrest is utilised to force a suspect to abandon their rights to silence in violation of s 35(3)(h) of the Constitution(Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) para 11).

[99]      But if the person effecting the arrest is a peace officer, and he entertains a reasonable suspicion that a person has committed a Schedule one  offence, it is not necessary that he intends to bring the arrested person before a court in order to charge him. It is sufficient in such circumstances to intend to detain the suspect in order first to investigate the case and then, depending on the result of the investigation, to either bring him before a court to be charged or release him. This qualification of the general rule on the one hand results from the element of uncertainty implicit in the concept of ‘suspect’ in s 40(1)(b) of the CPA. On the other hand, it must be seen in the context of the rewording of s 50 of the CPA.

[100]   In contrast with its predecessors, s 50 of the CPA contemplates the possibility of the release of a suspect after detention if further investigation has revealed no proof to substantiate a prima facie case against the suspect (Duncan v Minister of Law and Order 1986 (2) SA 805 (A) 819H–820E). However, should the person effecting the arrest not intend to bring the detainee before a court at all, and arrests him exclusively for other reasons, the arrest will not be lawful for purposes of s 40(1)(b) (Duncan v Minister of Law and Order 1984 (3) SA 460 (T) 465 et seq).

[101]   If, however, despite such malicious motivation, the person effecting the arrest intends to bring the arrested person before a court to be tried and convicted, the arrest will be lawful.

[102]   The question to be decided in this matter is a factual one, namely whether on the facts of this matter the police assumed control over the plaintiff and consequently arrested the plaintiff, detained him and assaulted him. 

[103]   There appears to be a factual dispute based on the evidence tendered, namely the evidence of the plaintiff when considered against that of the defendant’s witnesses.  In assessing the evidence tendered, the credibility of witnesses and their reliability and probabilities are apposite.  To assess the evidence of a witness the court held per Zulman JA in Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) para 10 the following:

‘The proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story which he tells are true.’

 

[104]   In this matter having regard to the evidence of all the witnesses, there are irreconcilable factual disputes.  To resolve apparent irreconcilable factual disputes, the test was formulated by Nienaber JA in Stellenbosch Farmers’ Winery Group Ltd & another v Martell Et Cie & others 2003 (1) SA 11 (SCA) para 5 as follows:

‘To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.  As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness.  That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.  As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof.  As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues.  In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.  The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another.’

[105]   In my view, the difficulty which faces the plaintiff is the following. At the time of his initial interview by the police where he was ‘dropped off’ by the thieves, he was not a suspect. A statement was taken from him at that scene and he was released into the custody of his employer. It was only after he and his fellow employees were interviewed by his employer that suspicions were entertained as to his alleged involvement. These were suspicions of his employer not the police. It was only after he and his co-workers failed the polygraph tests that they were then taken to the police to be further interviewed. This was at the behest of the plaintiff’s employer.

[106]   The witnesses for the plaintiff’s employer testified that among the concerns they had was whether the insurance company would pay given the circumstances in which the robbery occurred. The further assistance of the police was sought by the plaintiff’s employer to inter alia clarify how the robbery occurred. This was not only in relation to the plaintiff but also his crew. The plaintiff and his crew were transported to the police station by his employer.

[107]   From the evidence presented, the plaintiff willingly accompanied his employer to the police station. He was not arrested or detained nor were any charges put to him. From the evidence presented he could have asked to leave at any stage. The evidence and the probabilities favour this version as on the plaintiff’s version, after the interview, he was allowed to leave the room and waited outside on his own within view of the police officers. This is inconsistent with his version as to what transpired but consistent with the version of the defence witnesses.

[108]   In addition, one would have expected him to have reported this assault immediately after he was released if in fact it did occur. The evidence of Du Preez was that the plaintiff travelled back to the SBV offices in Greyville with him in complete silence. On the plaintiff’s version Du Preez  had taken his car keys from him and on their arrival handed these to Inspector Nzama.  Nzama removed the plaintiff’s cell phone from the plaintiff’s vehicle. The plaintiff remained in his vehicle until he was driven home by a colleague. Once Nzama and Du Preez had left and on the arrival of his colleague, he was alone with him and there was nothing which prevented him from reporting this assault or what had transpired at the Cato Manor Organised Crime offices to the colleague who drove him home.

[109]   What is also surprising about the plaintiff’s conduct is that a few days after the incident he was hospitalised. He then applied for temporary medical boarding and then full medical boarding. Why do this if he was assaulted by the police in the presence of his employer? Why remain in their employment and interact with them after the “incident” if on his version they were present throughout? What is also noteworthy is that his crew were taken to the police station and interviewed in a similar fashion as the plaintiff, yet none of them instituted proceedings against the defendant nor complained about the conduct of members of the defendant and or their employer.

[110]   On the facts of this matter the plaintiff voluntarily provided an initial statement at the scene, and, at that stage it was a witness statement.  Subsequently, he attended a polygraph test at the instance of his employer, which he and some of his crew failed.  He voluntarily accompanied his employer to the offices of SAPS where he was questioned.    On the probabilities the plaintiff was treated as a suspect at this stage as the assistance was sought of SAPS by his employer to find out what exactly had transpired.  His employer was concerned that apart from failing the polygraph test, the plaintiff’s response to questions raised more questions than answers as to how in fact the robbery occurred.

[111]   In my view although the witnesses did not specifically say so the plaintiff’s employer considered him a suspect and based on this, so did the police.  He was interviewed at the police station and not arrested as there was no evidence to support that he was arrested. He was not issued with a SAP14 A, and he was not held in the police cells. The interaction between the plaintiff and the defendant’s officers was limited to purposes of questioning and when it became clear that there was no evidence against him in order for him to be charged for the commission of the offence, he was released. As such, on the totality of the evidence, the plaintiff was not arrested nor detained. 

[112]   Turning now to the assault. There is no evidence apart from the testimony of the plaintiff that he was assaulted. TheJ88 that was completed revealed nothing untoward nor did the plaintiff submit to an examination by a medical practitioner at the time of his admission to hospital a few days after the incident. In addition neither did he deem it appropriate to lay criminal charges against the members in question nor did he deem it prudent to lodge a formal complaint with the Independent Police Investigative Directive(IPID).

[113]   He did not testify to sustaining any injuries as a consequence of the alleged assault and most notably his evidence of how the assault occurred does not accord with the pleadings. In the particulars of claim it was pleaded that he was assaulted inter alia by means of ‘striking him with rubber tubing on his body’. When he testified, the plaintiff did not testify that he was struck with rubber tubing on his body. On the probabilities, given the pleadings that he was struck on his body one would have expected him to have sustained visible injuries.

[114]   In addition the plaintiff’s version in relation to where precisely he was questioned is in conflict with that of the defendant’s witnesses.  If an assault had taken place then the questioning would not have taken place in the open plan office in full view of all the policemen as well as other persons present where there was ease of access. In addition on the plaintiff’s version after he was questioned he was allowed to leave the room and sit outside and await for transportation back to his employers offices.  Such conduct is inconsistent with his version that he was assaulted.

[115]   On the probabilities the plaintiff was not arrested or detained nor was he assaulted. Even if I am incorrect in reaching the conclusion that he was not detained, then at worst for the defendant he was held as a suspect for questioning and when it became evident that there was no evidence against him he was then released and transported by his employer back to the SBV offices in Greyville. In the result on the probabilities the plaintiff has not discharged the onus of proving that he was arrested, detained and assaulted by members of the defendant. 

 

Costs

[116]   In my view there is no reason to depart from the usual rule in relation to costs and given that the plaintiff has been unsuccessful in the action against the defendant, costs ought to follow the result and include any reserved costs.

 

Conclusion

[117]   In the result the following order will issue:

 

The plaintiff’s claim is dismissed with costs, such costs to include any reserved costs.

Henriques J

CASE INFORMATION

 

APPEARANCES

Counsel for the Plaintiff                              :           Advocate K Naidu

 

Instructed by                                                 :           M B Gumede & Associates

14 B Salmon Grove Chambers

407 Anton Lembede Street

Durban

Ref:

Tel: (031) 305 3824/5

Fax: (031) 304 9657

Email: mbgumede@telkomsa.net

 

 

Counsel for the Defendant                         :           R R Kisten

 

Instructed by                                                 :           State Attorney (KZN)

6^th Floor Metropolitan Life Building

391 Anton Lembede Street

Durban

Ref: 12/6675/07/G/P23MP

                                                                          

Dates of Hearing                                          :           4 & 5 August 2014;

7 September 2016;

15 March 2017; 

3, 4 & 5 May 2017;

8 May 2017.

 

Plaintiff’s written Submissions                   :           27 February 2019; 3 April 2019;

                                                                                 4 April 2019.

 

Date of Judgment                                        :           19 July 2019

 

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