Duncan v Minister of Law and Order

• Jurisdiction: South Africa
• Judge: Van Dijkhorst J
• Judgment Date: 17 February 1984
• Court: Transvaal Provincial Division
• Hearing Date: 17 February 1984
• Citation: 1984 (3) SA 460 (T)

Van Dijkhorst J:

The fête at the Bryanston High School was marred by an ugly incident. This caused a chain reaction which culminated in the plaintiff's claim for damages on behalf of his minor son, Noel Duncan, on the grounds of unlawful arrest.

D At approximately 18h45 on Saturday 15 May 1982 one of the parents, Mr Ruhsmann, and his son were attacked by youths apparently under the influence of alcohol or drugs. Four adolescents walking abreast approached them on a path. One bumped into Ruhsmann, causing him to stumble. One of the youths turned around, said something and then knocked him to the E ground. Another in a white T-shirt hit the son, knocked him to the ground and then kicked him. The assault on Ruhsmann was nearly lethal. His larynx was fractured, the thyroid cartilage being split down the middle-line from top to bottom. The assailants, who could not be identified by Ruhsmann or his son, departed.

F Public uproar ensued: The incident was given considerable press and radio coverage. Schools considered cancelling scheduled fêtes, and allegations were made that it was no longer safe on the streets.

As can be expected considerable pressure was brought to bear on the Randburg police, who had to bring the culprits to justice. This was no easy task and many fruitless hours were spent G following useless clues up blind alleys.

On 17 June 1982 Detective Warrant Officer Esterhuyse took over the docket for investigation. On that same day at 11h00 Detective Warrant Officer Bronkhorst received an anonymous telephone call from a young female as a result of a newspaper H report. She gave him the registration number of a white Toyota panel van, GHN 761 T, saying that those responsible for the assault on Ruhsmann at the fête had driven away in that vehicle. She alleged that she had seen the assailant of Ruhsmann driving that particular van recently, nearly knocking down a girl on a bicycle. She had then taken the registration number.

I Warrant Officer Bronkhorst instructed Detective Sergeant Wiid to follow up this lead.

By means of the police computer he ascertained that the registered owner of the panel van was one Friedland of the Alberton area. Friedland told him that he had sold the vehicle to one Ochse. Friedland

Van Dijkhorst J

A was asked about his own whereabouts on 15 May 1982. He gave an explanation, which was checked and found to be satisfactory.

Wiid then went to a shop in Commissioner Street, Johannesburg, where Ochse worked. He had identikit photographs of three suspects with him. Ochse was a White male of 17 years who resembled one of the photographs. Ochse told Wiid that on 15 B May 1982 he had no longer been in possession of the panel van, having sold it to a friend of his, Noel Duncan. In respect of his movements on 15 May 1982 he gave an alibi. He pointed out to Wiid the house of Noel Duncan and was thereafter taken to the police station. In front of Duncan's house the van was parked.

C On the way to the police station Ochse had made mention of the fact that Noel Duncan had informed him that he had been involved in a fight at the Bryanston High School. This information was repeated to Bronkhorst. In a statement taken on 18 June 1982 Ochse gave the following version:

"Noel Duncan took possession of the vehicle on 30 March 1982. D During May 1982 Noel entered the shop where I work and he discussed payment with me for the car. During our conversation he mentioned in slang that him and buddies, I presume, had a fight at a fête. He did not say where the fête was and I was also not interested as I only wanted my money and I don't even know the guy well."

E After handing Ochse over to Bronkhorst at the Randburg police station, Wiid, on instructions of the latter, made a preliminary scouting trip to ascertain whether in fact Noel Duncan lived at the house which had been pointed out by Ochse and whether he was at home. Still on 17 June 1982 at approximately 21h00 Bronkhorst, Wiid and Detective Sergeant Lemmer went to the house of the Duncans. Bronkhorst's intention F was to question Noel Duncan to ascertain whether he had in fact been involved in the assault on Ruhsmann and to obtain more information. He suspected him of having been one of the assailants.

At this stage he had the following information:

1.

The anonymous telephone call that the Toyota panel van G GHN 761 T had been seen at the fête and that its driver had been one of the assailants of Ruhsmann. This information would of course be inadmissible evidence in court.

2.

The fact that the Toyota panel van was the property of Noel Duncan at the relevant date.

3.

A description by Ochse of Noel Duncan which to a large H extent agreed with one of the identikit photos. This information would have no evidential value in court as the identikit photos were not accurate.

4.

The statement by Ochse that Noel had told him that he had been involved in a fight at a fête.

I There are disputes whether four or three policemen came to the house of the Duncans, who opened the door, what charge was allegedly investigated, whether Lemmer made certain uncivilised remarks and in which vehicle Noel Duncan was taken to the police station. These disputes are not relevant for my present purposes. The following facts are either common cause or on the probabilities clearly established.

Van Dijkhorst J

After having identified himself and having introduced his A colleagues, Bronkhorst entered the Duncan home and went to the bedroom where the plaintiff, Noel's father, had indicated the conversation between Noel and the police should take place. Bronkhorst proceeded to question Noel about the assault on Ruhsmann at the Bryanston High School fête on 15 May 1982. It was made clear to Noel that he was suspected of having been one B of the assailants. Noel informed him that he was the owner of the Toyota panel van standing in front of the house. He also informed him that on the day of the fête in the late afternoon he had been at the school with the van, and that he knew about the assault. At this stage the plaintiff intervened and forbade him to say anything further. Noel complied. Bronkhorst C thereupon told him that should he refuse to answer he would have no alternative but to arrest him. Noel persisted in his refusal and was thereupon arrested.

Bronkhorst stated in Court that his initial suspicion that Noel was one of the assailants...