De Jager v Minister of Police and Others (513/2018) [2020] ZAFSHC 91 (2 April 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 513/2018

In the matter between:

NADIA DE JAGER Plaintiff

and

THE MINISTER OF POLICE First Defendant

THE NATIONAL COMMISSIONER OF

THE SOUTH AFRICAN POLICE SERVICE Second Defendant

THE PROVINCIAL COMMISSIONER OF POLICE

FREE STATE Third Defendant

THE STATE ATTORNEY Fourth Defendant

JUDGMENT

CORAM: NAIDOO J

HEARD ON: 20-21 AUGUST 2019; 29 -30 October 2019;

10 December 2019; 28 January 2020

DELIVERED ON: 2 APRIL 2020

INTRODUCTION

[1] The plaintiff sued the defendants for damages she suffered as a result of her being wrongfully arrested and detained in connection

with a criminal charge of being in possession of property suspected to be stolen. Her claim included damages arising from defamation. At the commencement of the trial, the plaintiff indicated that she will no longer proceed against the 2nd to 4th defendants, and the defendants abandoned the special pleas. The first defendant will consequently be referred to as the defendant. In addition, the plaintiff indicated that prayer 2 in the Particulars of claim erroneously reflected an amount of R300 000.00, whereas it should read R250 000.00, and sought the appropriate amendments to the prayers in the Particulars of Claim. The plaintiff also indicated that she will no longer proceed with the claim for loss of enjoyment of amenities of life. The defendant had no objections to the amendments and the Particulars of Claim were amended accordingly. Adv Lubbe represented the plaintiff, and Adv Thompson represented the defendant.

THE PLEADINGS

[2] With regard to her arrest, the plaintiff alleges in her summons, inter alia that she was arrested as a suspect on charges of being in possession of suspected stolen property at or near Koppies in the Free State Province by unknown members of the South African Police Service (SAPS) who are attached to the Koppies Police Station and who effected the arrest without a warrant and without just or reasonable cause.

[3] The plaintiff alleges that she was detained in deplorable circumstances at the Koppies police station and denied access to a

lawyer. She was (presumably) on the same day as her arrest taken to the Koppies Magistrates Court where she was detained

further, while waiting for her matter to be called. The prosecutor thereafter withdrew the charge against her, without her appearing

before the magistrate. She further alleged that her detention was wrongful and unlawful as the arresting officers and other unknown

policemen involved in the investigation, did not investigate the matter properly. If they did they would have ascertained that no grounds existed for the arrest and detention of the plaintiff. They took no steps to ensure that she was released as soon as possible.

[4] With regard to the claim for defamation, the plaintiff alleges that during her arrest and detention and even after her release she was subjected to derogatory remarks by the police, in the presence of friends and members of the public. She lives in a small town and gossip abounded about her arrest. She was humiliated and degraded by being labelled a criminal and unsavoury person who needs to be ousted by the community. Her reputation as a sales person was also tarnished.

[5] The defendant, in his plea, admits that that plaintiff was arrested without a warrant at Koppies by a member of the first defendant,

Warrant Officer Pitso (Pitso), a peace officer as defined in the Criminal Procedure Act 51 of 1977 (the CPA). At all material times,

he held the reasonable belief that the plaintiff committed an offence referred to in Schedule 1 of the CPA and exercised his discretion to arrest the plaintiff in a bona fide, rational and non-arbitrary manner. His only intention was to bring the plaintiff before a court as soon as possible in order for the court to decide on her further detention or release, pending the finalisation of the case against her. The defendant denied all the plaintiff’s other allegations regarding her arrest, detention and defamation.

EVIDENCE FOR THE PLAINTIFF

[6] The plaintiff testified and called five witnesses in support of her case. The plaintiff’s version is that father of one of her children, Jan Steyn, bought a farm just outside Kimberley, at the end of 2014 and she stayed there with her children and Jan Steyn until July 2016. When the farm was purchased, a roll of cable was lying next to a small building on the farm. On 1 October 2016 she, Jan Steyn, her son, nephew and a friend of the boys went back to the farm and fetched this roll of cable, and took it to her mother’s premises in Koppies, where the plaintiff was staying at the time. They also took a pump with them. The intention was to replace the non-functional borehole pump on her mother’s farm with the pump and cable they brought from Jan Steyn’s farm.

[7] They attempted to replace the non-functional borehole pump and cable with those they had brought from the farm, but were unsuccessful. The roll of cable thereafter remained in her mother’s garage until the plaintiff decided to sell the cable. The cable was taken to the business premises of her ex-husband, which is opposite a scrapyard. The plaintiff approached the scrapyard with a length of the cable, indicating her intention to sell the cable. She was requested to obtain a letter or affidavit from the police indicating that she is permitted to sell the cable. That is what took her to the police station with the length of cable

in hand. She was accompanied by her sister in her quest to obtain the required document.

[8] At the police station, the plaintiff alleges that her first point of contact was a policeman by the name of Mr Delport in the charge office. She showed him the cable and requested him to provide her with an affidavit authorising her to sell the cable. He said he would get clearance from the Detectives, which he did, advising that they would enquire from Telkom whether the cable belonged to them or not. He said he would call her later, which he did, and advised that Telkom confirmed that the cable belonged to them. He asked her to come in to the police station to make a statement, and when she said she did not have transport, he came to her home, fetched her and took her to the police station. She made a statement at the police station, after which Delport took her back home.

[9] That same day, Warrant Officer Pitso confiscated the roll of cable from the work premises of her ex-husband. The latter called her and advised that Pitso was on his way to arrest her. She called the Koppies Police Station and requested Deloprt to advise Pitso that she would come to the police station herself. Her mother took her to the police station, and on her way there, she called her lawyer, Nadia Roodt. At the police station she waited for Pitso and her lawyer. It seems her lawyer called a Captain Lategan (Lategan) and after a conversation with her, the lawyer called the plaintiff and requested that she go and see Lategan, which she did. The plaintiff explained to Lategan how she came to be in possession of the cable in question. It seems that Nadia Roodt arranged with Lategan that the plaintiff not be detained in the police cells as she (the plaintiff) had children at home. Lategan was agreeable to the arrangement, but said that they would have to take a sample from the plaintiff for the purpose of DNA testing.

[10] This was done in the office a detective called Koos Lubbe, where police officials and members of the public were walking past and could see what was happening. She asked if she could refuse to do the test and was told that she could not as this was a procedure they adopt when charging someone. She was thereafter asked to come back to the police station the following day so that her details could be recorded and she could be taken to court. Her mother was with her at all times on that day.

[11] The following day, 12 October 2016, she reported to the police station, where her fingerprints were taken in an area where a number of people were standing around. Her mother and lawyer were present. She was then taken to the court which is next door to the police station, by Pitso. Her lawyer, mother and sister were present and accompanied her to court. There Pitso left her in the custody of her lawyer and departed. They were seated near the prosecutor’s office. Her lawyer went into the prosecutor’s office and after a while returned and advised the plaintiff that she could go home. They would contact her and tell her when to come back.

[12] The plaintiff testified that she had worked for Jan Steyn in what appears to be an administrative capacity, and also had her own business selling used cars for people. As a result of this incident, Jan Steyn fired her because she was not focusing on her job. She also lost her job selling cars because people no longer trusted her. She was aware of gossip branding her a thief.

[13] The plaintiff’s sister, Emmarentia Claasens confirmed the plaintiff’s evidence that she accompanied the plaintiff to the police station when the scrapyard requested an affidavit to permit the sale of the cable. She also testified that she was present with the plaintiff, her mother and the lawyer, Nadia Roodt on the morning that the plaintiff was arrested and taken to court. She confirmed in broad terms the plaintiff’s evidence about events that took place that morning at the police station and at court. The plaintiff’s 15 year old son, Jaco de Jager testified and confirmed that the roll of cable in question was brought from the farm of Jan Steyn to the smallholding of the plaintiff’s mother, and he was one of the boys that accompanied his mother and Jan Steyn to fetch the cable from the farm.

[14] The plaintiff’s mother, Gerrie Potgieter, similarly confirmed that the plaintiff and Jan, together with the three boys I mentioned earlier, brought a roll of cable and a submersible pump from Jan Steyn’s farm in order to repair the borehole on her smallholding. She also confirmed that on 11 October 2016, she accompanied the plaintiff to the Koppies police station, that the plaintiff called her attorney, Nadia Roodt, who spoke to Lategan. A short while later, Nadia Roodt called the plaintiff and told her to see Lategan, which the plaintiff did. Ms Potgieter accompanied her into Lategan’s office and while they were there Lategan received a call from Nadia Roodt and a conversation ensued. Thereafter, Lategan took out a packet and tapped it, and informed the plaintiff that a DNA sample would have to be taken. They went into the office of Koos Lubbe for this purpose and a sample was taken from the plaintiff. She confirmed that the next day, she accompanied the plaintiff to the police station, where her fingerprints were taken and she was thereafter taken to court. She, her daughter, Emmarentia and Nadia Roodt accompanied the plaintiff and Pitso to court. She confirmed the plaintiff’s version about events that unfolded at court.

[15] Frik Van Heerden Du Preez (Du Preez) is the plaintiff’s instructing attorney in this matter and practises as an attorney in Roodepoort. All his communication with the plaintiff was by way of electronic mail, as she lived in Koppies (which is approximately 144 kilometres away). She was required to fill in a questionnaire giving details of the matter. Based on the answers provided by the plaintiff, the summons and Particulars of Claim were drafted by Du Preez’s candidate attorney. He checked to see it was correct, and sent it to his correspondent for issuing, without the plaintiff having sight or knowledge of its contents. The summons was issued on 5 February 2018, and the first time that Du Preez met the plaintiff in person was in August 2018, when she signed the Founding Affidavit, in support of an application for condonation for the late filing of the statutory Notice in terms of section 3 of Act 40 of 2002. On that occasion too, the Founding Affidavit was prepared by the candidate attorney and checked by Du Preez. The plaintiff merely “scanned” the document and signed it.

[16] Du Preez further indicated that he was informed of the trial date only three days before the trial was due to commence. He made an appointment for the plaintiff to consult with counsel, but it seems he himself was not present at the consultation. Du Preez testified that he was unaware of Nadia Roodt’s existence until after the trial commenced, and it was only thereafter that he made contact with her.

[17] Nadia Roodt testified that she was part of a Facebook group of legal practitioners who gave advice to the public and the plaintiff was a member of this group. She called the witness late in the afternoon of 11 October 2016 and was informed that the plaintiff was going to be arrested. She then spoke to a female Captain at the police station who agreed that the plaintiff will not be arrested on that day, provided Roodt attended at the police station with the plaintiff the next day. She duly attended at the police station where the plaintiff was arrested by Pitso, who read her rights to her. Thereafter she had to convince him not to detain the plaintiff but proceed immediately to court for a bail application. She and the plaintiff’s mother accompanied Pitso and the plaintiff to court, where Pitso left the plaintiff in her care. They waited outside the prosecutor’s office for a while and then she went in to see the prosecutor. She read a statement by the plaintiff but cannot remember the contents. The prosecutor informed her that there will be no bail application, but he was releasing the plaintiff into her care and will call them if the plaintiff was needed at court. She then left. That concluded the case for the plaintiff.

EVIDENCE FOR THE DEFENDANT

[18] The defendant called five witnesses in support of his case. I will deal with their evidence not in the order they were called but in accordance with the way the events unfolded at the relevant times. Christoffel Lotter Delport (Delport) is a Warrant Officer in the employ of SAPS and stationed at the Koppies police station. On 10 October 2016, he says that the plaintiff approached him in the charge office and requested a sworn statement to enable her to sell copper cable to the scrapyard. He asked where she got the cable and she replied that she got it from her husband in Kimberley. When he asked if she had proof of this, she said she did not. He then took her to Captain Lategan in the Detectives’ office. He denied taking any statement from the plaintiff, indicating that that was the work of the detectives. He also denied that he said to the plaintiff that it should not be a problem to sell the cable as it had no markings on it. Delport further denied that he made any arrangement with the plaintiff to fetch her from her home and take her to the police station or that he took her back home. After he referred the matter to Captain Lategan, he had no further

involvement with the plaintiff.

[19] Theresa Lategan (Lategan) testified that she is a Captain in SAPS and is the Commander of the Detective Branch at the Koppies police station. On 10 October 2016, Warrant Officer Delport, came to her with a piece of cable, and with the plaintiff. Delport told her that the plaintiff seeks an affidavit authorising her to possess and sell the cable. She questioned the plaintiff about where she got the cable and the latter advised her that the cable was lying around on a farm in Kimberley, and her husband brought it from the farm. The plaintiff did not know who the cable belonged to, and Lategan told her that she is not permitted to be in possession of the cable. She advised the plaintiff that she was going to call Mr Erasmus from Telkom to confirm whether the cable belonged to Telkom. She retained the cable, and the plaintiff left with Delport.

[20] Lategan called Mr Erasmus the following morning and he arrived at the police station. She requested Captain (now Lieutenant) Nteso to accompany Mr Erasmus to Judrie Motors (the work premises of the plaintiff’s ex-husband, Machiel Kruger). Erasmus returned after a short while and confirmed that the cable did indeed belong to Telkom. He also advised her that no “ordinary” person is allowed to possess the cable. Erasmus and Nteso left her office and she thought they were going to open a docket.

[21] Later that day Lategan received a call from a lawyer enquiring why her client was arrested in spite of handing herself over at the charge office. Lategan did not know how to answer because she was not aware if the plaintiff was arrested. As she spoke to the lawyer on the telephone, the plaintiff walked into her office accompanied by another female. She was still unaware if the plaintiff was arrested or not, so she called Pitso, and while waiting for him, she called the prosecutor, presented him with the facts and sought his advice about whether the plaintiff could be arrested. The prosecutor advised her that possession could be proved as the plaintiff brought a piece of the cable and her ex-husband had said the cable was hers. The prosecutor also said to Lategan that the plaintiff’s explanation of her possession must be reasonable.

[22] Lategan’s view was that the plaintiff’s explanation to her was not reasonable. The plaintiff had said that she and her husband brought the cable from his farm. She knew that Jan Steyn was not the plaintiff’s husband, but that Gielie Kruger (who has been referred to as her ex-husband) was, and that the farm did not belong to them but to Jan Steyn. Added to that, Erasmus had said that no one was allowed to be in possession of the cable. Therefore, Lategan was of the view that there were sufficient grounds to arrest the plaintiff on a charge of being in possession of suspected stolen property. Lategan testified that she knew the plaintiff and her circumstances, and hence said that she will not arrest and lodge her in the police cells. The arrangement was made that the plaintiff would be processed and would come back the next day to be taken to court. She asked Pitso (who seems to have arrived in her office by then), to take the plaintiff’s fingerprints, warning statement and DNA sample. The arrangement with the plaintiff was not communicated to the plaintiff’s lawyer. She did see the plaintiff the next day, but briefly in the passage.

[23] Daniel Jacobus Erasmus, an employee of Telkom and stationed at Parys, testified that he was called by Captain Lategan on 11 October 2016 to come to Koppies and identify some cable. On arrival he was accompanied by two police officials to Judrie Motors where he was shown the cable. He identified it as the type of above-surface cable used by Telkom. He testified that no person, other than a contractor who has a tender document to prove that he is entitled to be in possession of such cables, was permitted to be in possession of such cables. He was directly involved in matters involving theft of (Telkom) cables, and indicated there were regular thefts of the cable. The estimated value of the cable he identifies was approximately R18 000.00. The cable was taken to the police station and after a few days, he was requested by the police to remove the cable, which he did, and took it back to the Telkom depot in Parys. His further evidence is that he is not involved with installation or replacement of cables, so he is unable to say what happens to old cables. To his knowledge for anyone to be in possession of that type of cable, they would have to produce the necessary paper work.

[24] Molefi Edwin Pitso is the investigating officer in this matter. He testified that he was requested by his Commander, Captain Lategan to investigate the docket. He was called to her office, and found the plaintiff there. Lategan asked him to process the plaintiff. He took her warning statement and then handed her to Sergeant Lubbe, who is trained in harvesting DNA samples. Pitso shares an office with Lubbe, so he left the office closing the door behind him to give the plaintiff some privacy. Thereafter he did some preliminary investigations. When he received the docket on 11 October 2016, he had only three statements in the docket: (1) that of Captain Nteso as the complainant, in which he said that he went to Judrie Motors and that some cable was pointed out to him, which Erasmus identified as the property of Telkom. Machiel Kruger also indicated that the cable belonged to his wife, Nadia; (2) that of Mr Erasmus identifying the cable as the property of Telkom and indicating that no one is permitted to be in possession of the cable and (3) that of Machiel Kruger, indicating that he transported the cable from a plot to his place of work, and that the cable was the property of his wife Nadia (the plaintiff).

[25] Pitso testified that when he took the plaintiff’s warning statement, she refused to give him a statement or explanation of her possession of the cable. She indicated that she will make her statement in court or to her lawyer. At that stage, he formed the reasonable suspicion that she was in possession of property he suspected to be stolen and that she failed to give an explanation to him for such possession. Hence he was of the view that the plaintiff should be arrested and taken to court. He arranged with her to come the following day so that he would take her fingerprints and then take her to court. He denied that she was accompanied by anyone at the time he took her to court, and denied that her attorney was present. He took the complainant to court and handed her to the court orderly present at court.

[26] Siviwe Mdazuke is a prosecutor and was stationed at the Koppies Magistrates Court during the time of this incident. On 11 October

2016, he received a call from Capt Lategan seeking advice on whether a person found in possession of copper cable can be arrested, and advice regarding the explanation given by that person in respect of such possession. The following day, he received the docket, with three statements (which I have referred to above), a warning statement and a statement of rights. He was unable to read the

statements because of poor handwriting. He also noticed that the accused person was a first offender and had gone to the police

station own her own. The investigating Officer informed him that she lives in Koppies and is well known. He concluded that she was not a flight risk and for those reasons decided not to place the matter on the court roll. He informed the court orderly that the plaintiff, and others not being charged, could be released.

[27] The plaintiff was sitting in court on a bench just inside the back door of the court. He noticed some people sitting behind her. He gained the impression that her mother was in court. The process to be followed when a person is released at court is that the orderly has to furnish that person with a release note so that he/she can be accounted for. Mr Mdazuke denied ever seeing the plaintiff’s attorney, Nadia Roodt on that day, or having any conversation with her. He would remember because it was a Wednesday and the court is not busy on that day. He even remembers that the Legal Aid attorney was not in court on that day. In response to a question how he knows the plaintiff, Mr Mdazuke indicated that this was not the first time he saw the plaintiff. Even after this day (12 October 2016) he saw her when she came to court for child-related matters, and on other occasions, in connection with maintenance, as he was the Maintenance Prosecutor for Koppies. The defendant thereafter closed his case.

ISSUES

[28] The issues to be determined by this court are whether:

28.1 the plaintiff has succeeded in proving the merits of her claim;

28.2 the plaintiff established a causal link between the actions of the defendant/his employees and the patrimonial loss she alleges she suffered.

THE LAW

[29] Section 36 of the General Law Amendment Act 62 of 1955 provides as follows:

“36 Failure to give a satisfactory account of possession of goods

Any person who is found in possession of any goods, other than stock or produce as defined in section one of the Stock Theft Act, 1959 (Act 57 of 1959), in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such

possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.”

It is well established in our law that the “reasonable suspicion” is one that the police official/s involved in the arrest of the accused person must objectively form, based on the facts of the matter. The satisfactory account of possession is one to be given to the court. If an explanation is given to the police, it is still in the discretion of the police to decide on the manner in which the accused should be brought before the court. In R v Schmitt 1960 (1) SA 666 (O), the court held as follows:

“The grounds of suspicion must be given in Court by legally admissible evidence to enable the Court to judge whether or not the suspicion

was reasonable; see Magubane v R., 1950 (2) P.H. H.116. The accused can give his 'satisfactory account' at the trial; see R v Armugan, 1956 (4) SA 43. There is no onus on the accused to satisfy the court of the truth of his account. All he has to do is to give an account which may reasonably be true and which, if true, satisfactorily explains his possession. “

[30] Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) makes provision for arrest of a person without a warrant as follows:

“(1) A peace officer may without warrant arrest any person—

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;”

An arrest without a warrant may only be effected where the peace officer entertains a reasonable suspicion that the person he is arresting has committed an offence listed in Schedule 1 of the CPA. With regard to “reasonable suspicion” the court in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) held at p811 I to 812:

“The words "reasonable suspicion" in s 40 may tend to indicate some subjective test to be applied; however, that is not so; the test as to whether "reasonable suspicion" could have existed and did exist, is to be determined by an objective standard, namely that of the reasonable man with the knowledge and experience of a peace officer based upon the facts and circumstances then known to the arresting peace officer.”

[31] The jurisdictional facts necessary to sustain a defence in terms of section 40(1)(b) were set out in Duncan at p818 G-H as follows:

“The so-called jurisdictional facts which must exist before the power conferred by s 40 (1) (b) of the present Act may be invoked, are as follows:

(1) The arrestor must be a peace officer.

(2) He must entertain a suspicion.

(3) It must be a suspicion that the arrestee committed an offence referred to in Schedule 1 to the Act (other than one particular offence).

(4) That suspicion must rest on reasonable grounds.

The court in Duncan went on to say that if the jurisdictional requirements are satisfied, the peace officer may invoke the power

conferred by the subsection, and arrest the suspect. He, therefore, has a discretion as to whether or not to exercise that power, but such discretion must be properly exercised. The general rule is that where the exercise of the discretion is questioned, the onus to

establish the improper object of the arrestor will rest on the arrestee. In other words, where the arrestee alleges that the discretion of the peace officer was improperly exercised, the onus rests on him/her to prove same.

[32] It is an equally well established principle in our law that any arrest and detention is prima facie wrongful. The state (in this case the defendant) bears the onus to allege and prove the lawfulness of the arrest. [See, for example

Minister of Law and Order v Hurley 1986(3) SA 568 (A) and the cases cited therein; Lombo v African National Congress [2002] ZASCA 61 and also cited as [2002] 3 All SA 517 (SCA)]

EVALUATION

[33] In considering the issues for adjudication before this court, it is apparent that the plaintiff led a great deal of evidence to support her explanation of how she came to be in possession of the cable relevant to this matter, and perhaps lost sight of the fact that this is a civil trial and the court is called upon to decide on whether she proved her case as pleaded in her Particulars of Claim. The plaintiff’s version during her testimony in court was in stark opposition to what was pleaded in her summons, for example, she alleged that she was “detained in the Police Station in deplorable circumstances and refused access to a lawyer” This was clearly not the case at all, as her evidence indicates that she was never detained at the police station or anywhere else, and she definitely had access to a lawyer. She also alleged that she was detained further at court while waiting for her matter to be called, which is also not true, on her version.

[34] The further allegation that the prosecutor withdrew the charges against her due to lack of evidence also cannot be sustained in view of the evidence of the prosecutor, Mr Mdazuke, that he required the statements to be presented in a more legible form and that the matter required to be investigated further. It was for these reasons that he did not place the matter on the roll that day. Apart from that the plaintiff was known to him, she lived in the Koppies area and he did not consider her a flight risk, hence he instructed the court orderly to release her and provide her with a release note

[35] The plaintiff was asked where her attorney would have obtained the information regarding the circumstances in which she was detained and that she was denied access to a lawyer. She indicated that she did not tell her attorney that and was not aware of where he got such information. Her attorney, Mr Du Preez, was called to testify and indicated that instructions were obtained from the plaintiff via a questionnaire. No confirmation was obtained from her regarding the correctness of the Particulars of Claim, which were drawn by his candidate attorney. Mr Du Preez alleges that he merely checked the Particulars for correctness and despatched it to his correspondent in Bloemfontein for issue. He did not specify what exactly he checked and how he concluded that the Particulars were correct. Startlingly, he testified that the first time he met the plaintiff was some six months after the summons was issued.

[36] In my view, proper control and management of this matter by Mr Du Preez was lacking. He alleges that his correspondent attorney

informed him of the trial date only three days before the scheduled commencement of the trial. There was clearly little or no preparation

from his side for trial. On his version, there was a consultation with the plaintiff a few days before the commencement of the trial. It is somewhat perplexing that the discrepancies between the plaintiff’s pleaded case and her actual version were not discovered at that stage, or if they were, then it is even more perplexing that no attempt was made to amend the Particulars of Claim. Mr Du Preez’s reasons for not amending the Particulars are, with respect, flimsy.

He indicated that he was not informed that the Particulars should be amended.

[37] When asked why there was an allegation, in the Particulars of Claim, of assault upon the plaintiff, he responded that this was a “cut and paste”. He later said that in the last five years he has dealt with many matters against the Minister of Police and it is possible that the candidate attorney inserted that allegation (presumably from Particulars of Claim pertaining to another matter). There are other aspects of his evidence that indicate that the manner in which this matter was handled, is unsatisfactory, much to the prejudice of the plaintiff. An example is that he only learned of the existence of Nadia Roodt after the trial commenced. His involvement in and management of this matter falls far short of what is expected of an attorney.

[38] I return to the plaintiff’s evidence. She alleged that Warrant Officer Pitso accompanied her to court, and simply left her in the care of her attorney outside the court and returned to his office. In my view, this does not accord with the procedures which must be followed when an accused person is taken to court for his/her first appearance. Pitso testified that he took the plaintiff to court and left her in the care of the court orderly at the court. She was left inside the court room, albeit on a bench at the back of the courtroom. Neither Pitso nor the prosecutor saw any attorney that morning and both deny speaking to Nadia Roodt. The evidence of the plaintiff and Nadia Roodt regarding the latter’s approach to the prosecutor, that she was allowed to read a statement in the docket and was then merely allowed to take an arrested person away also does not accord with the procedures normally followed in courts regarding the handling of arrested persons. The prosecutor’s account of how he dealt with the docket and his instructions to the orderly to release the plaintiff is more probable, in my view. Ms Roodt’s vagueness regarding the events at court also raises doubt about whether she was in fact present at court. She was unable to say what document she read in the prosecutor’s office, nor could she say if the plaintiff accompanied her into the prosecutor’s office.

[39] Mr Lubbe in his Heads of Argument and his oral address in court made much of the plaintiff’s corroborated evidence in many respects. He submitted that the plaintiff’s version must be preferred and accepted over that of the defendant. He referred to the jurisdictional requirements set out in section 40(1)(b) of the CPA, but did not discuss it in relation to, specifically, Pitso’s conduct and whether the defence raised by the defendant was sustainable. He also did not specify how the acceptance of the plaintiff’s version tendered in court supports her pleaded case. He specifically made no submissions as to how the court should deal with version of the plaintiff which was diametrically opposed to her pleaded case.

[40] While it may be so that the certain aspects of the plaintiff’s version were corroborated by her witnesses, most of whom are her family members, her version goes to proof of her possession of the cable that she was attempting to sell, rather than proof of her case as pleaded in the summons. I refer here to the provisions of section 36 of Act 62 of 1955, which I have set out earlier, and which stipulate what must be proved in the criminal trial of a person charged with contravening section 36. The plaintiff alleged that Pitso upon arresting her, expressed the desire to throw her into the cells. It must be borne in mind that this was after he had processed her for court, in accordance with his Commander’s instructions, and as they were departing for court. It is also significant that her mother, sister and lawyer remember those words vividly but were rather vague in other respects, either claiming not to have heard or to have forgotten, for example her mother and sister went to the car park to smoke so were not able to testify to everything that happened at court.

[41] It appears that the plaintiff was attempting to show that Pitso acted mala fides or unjustly in arresting her. I find that to be an improbable notion, when the surrounding circumstances of this matter are considered. The police officials at the Koppies police station appear to know the plaintiff well. Captain Lategan dealt with her extensively in connection with problems relating to the plaintiff’s children. Lategan was a member of the Governing Body of the school which the plaintiff’s children attended. Lategan clearly had detailed knowledge of the plaintiff’s personal life. The manner in which the plaintiff was accommodated by Lategan, where the latter, out of consideration for the plaintiff’s young children, agreed not to arrest her on 11 October 2016 and arranged instead for her to come the next morning for the formalities to be completed and for her to be taken to court, does not speak of someone with ill-will or malicious intent towards the plaintiff.

[42] Similarly Pitso testified that he knew the plaintiff and her mother very well, and attended at their home when the plaintiff had complaints relating to her children. He even went to the school in connection with such problems. It was clearly a cordial relationship as the plaintiff’s mother on occasion gave him spinach to take home. The plaintiff made no specific allegation of male fides in respect of Pitso’s conduct or his actions in relation to this case, nor did she lead any evidence in this regard. It is, therefore, difficult to reconcile what appears to be a cordial relationship between the plaintiff and Pitso, with his alleged desire to throw her into the cells. It is worth pointing out that in her summons the plaintiff alleges that unknown policemen arrested her and unknown policemen were involved in the investigation of this matter. Her version in court completely contradicted this allegation, as she confirmed that

it was only Pitso involved in the arrest and investigation of this matter.

[43] Mr Lubbe argued that the very fact of the plaintiff having been placed under arrest amounted to an unlawful deprivation of her liberty. The arresting officer, Pitso, had other means to bring the plaintiff to court. I do not agree. I deal later with this aspect relating to other means of bringing the plaintiff to court.

[44] With regard to the claim in respect of defamation, the plaintiff alleges that during her arrest and detention and even after her release, she was subjected to derogatory remarks by police officials in the presence of friends and family members. She led no evidence whatsoever in this regard, In fact, on her version, nothing of the sort occurred. Her only complaint in this regard is that the door of the office in which a DNA sample was taken was open and that unknown police officials and members of the public passed by in the corridor. This caused her to be upset (and presumably embarrassed). She claimed that Pitso was present when the sample was taken. Pitso, however, specifically denied this and testified that he had left the office and closed the door behind him. I find no reason to disbelieve him. In this respect, the plaintiff failed altogether in proving that she was defamed in any way.

[45] I turn briefly to deal with the defence proffered by the defendant. As indicated, he admitted that the plaintiff was arrested at Koppies, without a warrant on 12 October 2016 by Pitso. It was also pleaded that, at the time, Pitso was a peace officer as defined in the CPA. The relevant definition reads thus “'peace officer’ includes any magistrate, justice, police official, correctional official….”

A police official is defined thus: ”'police official’ means any member of the Force as defined in section 1 of the Police Act, 1958 (Act 7 of 1958), and 'police’ has a corresponding

meaning;”

There was no dispute that Pitso is a police officer. The defendant also pleaded that at the time of arrest, Pitso held a reasonable belief or suspicion that the plaintiff had committed an offence as referred to in Schedule 1 of the CPA, and that he exercised his discretion to arrest in a bona fide, rational and non-arbitrary manner. At all material times, his only intention was to bring the plaintiff before a court so that the court could exercise its discretion in respect of the further detention or release of the plaintiff. Pitso’s evidence, in my view, clearly demonstrates this.

[46] The defendant in my view established the jurisdictional requirements of section 40(1)(b) of the CPA. The dictum of the court in the matter of Duncan above is apposite. In such a case, Pitso could invoke the power conferred on him by this section to arrest the plaintiff. He had the discretion whether to arrest the plaintiff or not, although such discretion is to be properly exercised. Pitso was assigned as the investigating officer of this matter and as such, he was requested by Lategan, his commanding officer, to process the plaintiff by taking her fingerprints, her warning statement and he DNA sample. He performed part of those duties on 11 October 2016 and, in his discretion, completed the rest on the morning of 12 October 2016. Allied to the “processing” of the plaintiff, he knew that he had to and, in fact, intended to take her to court on completion of the arrest formalities at the police station. Therefore his exercise of his discretion to arrest the plaintiff was not improper. The fact that he took the plaintiff to court within an hour after completing the formalities is indicative

of his intention to bring the plaintiff before a court as soon as possible.

[47] With regard to whether Pitso had a reasonable suspicion that the plaintiff committed an offence referred to in Schedule 1, it must be borne in mind that at the time he elected to arrest the plaintiff, he had before him only 3 statements, that of Captain Nteso, Mr Erasmus and Mr Kruger. The plaintiff declined to make a statement to him, indicating that she would make the statement to court or to her lawyer. On the evidence available to him at that stage, his suspicion that she had committed the offence was reasonable, and his decision to arrest her was logical, bona fides and not arbitrarily made. I pause to mention an issue raised by Mr Lubbe in his Heads of Argument. He submitted that the plaintiff

explained in detail to Lategan her possession of the cable, in the presence of Pitso, so that he would have known what explanantion she gave. Mr Lubbe erred in this submission, as neither the plaintiff nor Lategan testified that Pitso was present. Lategan in fact said that after she had spoken to the plaintiff, she called for Pitso so that he could “process” the plaintiff. Pitso confirmed this, and it was not put to him that he was present during the discussion between the plaintiff and Lategan. I accept that, at that stage, he had no knowledge of the detailed explanation that the plaintiff tendered to Lategan. In any event, even if he had knowledge of her explanation, as a result of his experience as a police officer of 38 years (19 of which he was attached to the Detective Unit), he would have known that it is the court which would ultimately decide on whether the explanation was reasonable. He was not expected to assess the reasonableness of that explanation in exercising his discretion to arrest the plaintiff or not. In my view therefore, the arrest was lawful.

[48] I return to the aspect of alternative methods of bringing the plaintiff to court. Mr Lubbe argued that there were other ways in which Pitso could have brought the plaintiff to court, without specifying which other way he thought would be appropriate. In any event, as the court remarked in the Duncan matter, the general rule is that where the arrestee (the plaintiff in this case) disputes the proper exercise of the arrestor’s discretion, she must prove that it was improperly exercised. The plaintiff did not plead this in her summons, nor was any mention of this made during the trial. Mr Lubbe raised, only in his oral argument and Heads of Argument, the issue that Pitso could have employed another way to have brought the plaintiff to court. This will not avail the plaintiff.

[49] In my view, the defendant has properly established his defence to the plaintiff’s claim (corroborated largely by the plaintiff), in showing that her arrest was lawful, that she was never detained in the police cells or even in the cells at court, and that she was not defamed in any way. In my view, the plaintiff has failed to make out a case for the relief she claims. Having found on the merits, it is not necessary for this court to deal with the issue of quantum. It follows from my finding that the plaintiff has failed to prove her case on the merits, that she has not established a causal link between her arrest and any patrimonial loss.

[50] In respect of costs, the plaintiff asked for an order as per the Particulars of Claim. The defendant asked for a punitive order for costs on the basis that there was no merit in the plaintiff’s claims in respect of unlawful arrest and detention as well as defamation, and that the plaintiff’s action was a waste of time and resources. Mr Thompson submitted that in the event the court finds in favour of the plaintiff, an order for costs on the Magistrates Court scale should be ordered. Mr Lubbe’s response was that no argument was put forward for costs on the Magistrates Court scale. I am not satisfied that the defendant has made a convincing case for a punitive costs order. In view of the order I will make, the issue of costs on the Magistrates Court scale need not be considered.

[51] In the circumstances, I make the following order:

51.1 The plaintiff’s claim in respect of unlawful arrest and detention is dismissed

51.2 The plaintiff’s claim in respect of defamation is dismissed

51.3 The plaintiff is directed to pay the defendant’s costs on a party and party scale

__________________

S. NAIDOO, J

On behalf of Plaintiff: Adv. Lubbe

Instructed by: Spruyt, Lamprecht & Du Preez Attorneys

c/o Mhlokonya Attorneys

Suite 311 – 313 Sunday School Building

Charlotte Maxeke Street

Bloemfontein

(Ref:TG/crs751/crs)

On behalf of Defendant: Adv. Thompson

Instructed by: Ms CE Cawood

Office of the State Attorney

11th Floor Fedsure Building

49 Charlotte Maxeke Street