Coetzee v National Commissioner of Police and Others

• Jurisdiction: South Africa
• Judge: Du Plessis AJ
• Judgment Date: 11 October 2010
• Counsel: JR Bauer for the applicant. TP Kruger for the respondents.
• Docket Number: 70261/2009
• Court: North Gauteng High Court, Pretoria

Du Plessis AJ:

Introduction and background

[1] This application was urgently brought on the basis that an arrest was E unlawful and that I should release the applicant in terms of the common law. I will deal with the law applicable to this matter later.

[2] The applicant filed an affidavit by his attorney, Mr Riaan Meyer, with me during the evening of Sunday 15 November 2009, wherein he stated that he had requested from the investigating officer in the matter why bail F was refused to the applicant. The specific investigating officer apparently put the phone down on him and was of no assistance. The Pretoria West Police Station did not answer their telephone and, after having contacted the flying squad, the applicant's attorney, Mr Meyer, was also again put through to the Pretoria West Police Station. Mr Meyer also stated in his affidavit to me that the applicant was to be transferred to the Atteridgeville G Police Station during that evening.

[3] The applicant's wife, Ms Hester Maria Coetzee, also filed an affidavit, drafted on short notice, in terms of which she stated that the applicant had been employed for the previous twelve months at ABI Olifantsfontein and that he earns approximately R7000 per month. She H said that she had been married to the applicant for 22 years and that they had been resident in Jan Niemand Park, Pretoria, since 1993. They have two children and the value of their house is approximately R500 000. They also own two vehicles. She stated that the applicant has no passport. She stated that the Tshwane Metro Police apparently I attempted to stop the applicant, whereafter the applicant explained to them that he would stop at the nearest police station. Thereafter a number of vehicles of the Tshwane Metro Police apparently forced the applicant's vehicle off the road, after which he was arrested by the Metro Police and taken to the Pretoria West Police Station. There he was apparently charged and held. Mr Meyer also gave oral evidence before J

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A me on Sunday 15 November 2009. He testified that the applicant was arrested at approximately 17h00 for alleged negligent and reckless driving. He and his wife were apparently returning from Hartebeespoort Dam when the Metro Police indicated to the applicant to stop. He then told them that he would stop at the nearest police station.

B [4] The attorney testified that, in his experience, for such a transgression as was alleged to have been committed, a person is normally fined by the Metro Police, alternatively, if he is arrested, the South African Police Service (SAPS) is in a position to grant bail (publicly known as police bail). Mr Meyer testified that he tried to call an off-duty prosecutor, but C that he was told that it was not a Schedule 7 criminal offence (in terms of the Criminal Procedure Act 51 of 1977), and, for that reason, the State prosecutor could not assist. This is so because the SAPS is entitled to grant bail under these circumstances, and they would normally do so.

[5] Superintendent Malema, who was not on duty at the time, but who D is the station commissioner for the area, was contacted telephonically and he arrived at the hearing on Sunday evening. He also gave evidence. He said that he had no knowledge of the matter but that there was confusion about the powers of the SAPS and the Metro Police pertaining to arrests, in respect of the new traffic offence system called 'AARTO'.

E [6] I then issued a rule nisi in the terms referred to below, which rule nisi was issued late on the Sunday evening, after much trouble and inconvenience. I requested to be furnished with the name of the station commander of the Pretoria West Police Station, who was on duty the evening of 15 November 2009, as well as the name of the investigating officer of the applicant. I also ordered that the respondents should F provide reasons why the investigating officer and the station commander should not be held personally liable for costs of the application. I also ordered the immediate release of the applicant.

[7] Further affidavits were then filed by the parties, whereafter the matter was finally argued. I required full reasons why the applicant was not G given bail or granted the opportunity of paying a fine by the SAPS after having been arrested, and as to who should pay the costs of the application. The station commander, the Metro policeman, the investigating officer, and the commander responsible that evening for charging persons and granting bail, eventually appeared before me, and they were all represented by the State Attorney and counsel. They were joined as H respondents and had the opportunity to file affidavits and be represented.

[8] The applicant, Mr Coetzee, filed an affidavit in which he explained what had happened, according to him. He stated in the affidavit that he and his wife, as well as his son and the son's girlfriend, visited I Hartebeespoort Dam. He stated that, on their way back, he saw a person who waved at him walking into the road. He was not persuaded that it was a Metro policeman and he decided to continue driving. The Metro Police followed him and indicated to him that he should pull off the road. His son indicated to them that they should follow him to the nearest police station, where he thought it would be safe to stop. He states that J he was scared that, as has happened often recently, the persons were not

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real Metro policemen, but rather robbers, and he wanted to safeguard his A wife and his son's girlfriend. When he stopped at the said robot he noticed a person from the other vehicle following him, getting out of the vehicle with a pepper-spray can. He said that he was not prepared to be assaulted and he decided to drive on through the red robot. This is apparently part of the complaint of reckless and negligent driving against him. B

[9] Further on, approximately four to six vehicles of the Metro Police pulled him off the road. The door of his vehicle was pulled open, he was forcibly pulled out of the vehicle and his arm was twisted behind his back. The person who pulled him out then told him that he was going to C be arrested. He was not told the reason for the arrest. He was then taken to the Pretoria West Police Station where he was held. He was then given a SAPD 14A form which indicated that he was to be prosecuted for the following:

'Failed to comply with instruction of traffic officer, crimen injuria and D driving unlicensed and unregistered motor vehicle.'

(There was no mention of negligent and reckless driving.) He provided the court with copies of his motor vehicle registration number and the licence documents. The allegation that he was driving an unlicensed and unregistered motor vehicle is therefore not correct. There was never a E basis for the allegations. He further denies any allegation of crimen injuria and explained why he did not comply with the instructions of the traffic officer. A telephone number was given to his wife, of the so-called 'investigating officer'. This is the number that the attorney had phoned. The person on the other side refused to identify himself and simply F indicated telephonically that he refused bail. This was also confirmed in the evidence of the attorney, Mr Meyer. At that stage Mr Meyer had not known that it was the number of the Metro policeman. It appeared in court for the first time that this telephone number was actually the telephone number of the Metro police officer who had arrested the applicant, and not the telephone number of any SAPS investigating G officer.

[10] An affidavit was filed by a detective, Constable Mandla Steven Ntsweni. He is the appointed SAPS investigating officer in the matter. He stated that the matter was allocated to him on the Monday morning of H 16 November 2009 after I had already ordered the release of the accused. He states that at the time the application had been made to court no investigating officer had been appointed. He confirmed that the telephone number that was given to the wife of the applicant was the telephone number of the Tshwane Metro police officer, Constable Frans Moosa Sivayi, who was responsible for the arrest of the applicant on I 15 November 2009.

[11] The deponent then, in my view, quite brazenly, stated that the applicant made out no case on the papers that served before me on Sunday evening, 15 November 2009, for interference by the court. He said that there was no reason or special circumstances why the applicant J

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A should have been released. He also disavows any question of the applicant, his family or his attorney asking for bail.

[12] He states that the Metro policeman Sivayi informed the applicant of his constitutional rights, and that the applicant at no stage, according to Sivayi, sought bail or his release from detention. That is directly B controverted by the applicant, his wife and the attorney. The evidence is clear that Sivayi indicated himself that he had refused bail and that the applicant, his wife and the attorney were at all relevant times under the impression that Sivayi was an officer of the SAPS, that he was the investigating officer, and that he had the power to decide on bail or C release.

[13] The deponent also then annexed the SAPS 10 occurrence book and attempted to justify his allegation that no bail was ever asked for, by stating that it was not written into the SAPS 10 occurrence book. He also stated that he had perused the statements in the crime docket, that the D applicant refused to comply (which indicates that the applicant refused to comply with an instruction to stop), that the Metro police had followed him for quite a distance, that he had crossed several red robots, that he refused to stop, and that he was then forced to...