Feni v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | TV Norman J |
| Judgment Date | 26 May 2022 |
| Docket Number | EL462/20 |
| Hearing Date | 05 May 2022 |
| Court | East London Circuit Local Division |
| Citation | 2022 JDR 1469 (ECGEL) |
Norman J:
The plaintiff instituted an action for unlawful arrest and detention in the sum of R500 000,00. The plaintiff was represented by Mr Mhlanti and the defendant by Ms Magadlela. The parties agreed that the defendant bore the duty to begin and to justify both the arrest and the detention.
The following facts are common cause between the parties. On Sunday, 24 November 2019 at approximately 22h00 the plaintiff was arrested by Constable Witbooi who at the time was on patrol duty in the Duncan Village area. Thereafter the plaintiff was detained at the Duncan Village police station until he
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was released on Tuesday, 26 November 2019 at about 12h00 without him appearing before court.
The defendant led the evidence of Constable William Witbooi, a member of the South African Police Services. He testified that:
He has been a policeman for ten years. He is stationed at the Duncan Village Police Station and has been stationed there for the duration of his employment.
On 24 November 2019 he was on duty as a van driver doing patrols together with Constable Mtshizana. At about 22h00 as they were patrolling they were stopped by a young African girl who introduced herself as "L". She told them that she was a victim of rape and had reported the matter to the police the previous year, however, the suspect had not been arrested.
The girl looked young and he formed a view that if the case was reported the previous year then the girl would have been a minor at the time. She told him that she had seen that night the person that raped her.
He enquired from her who accompanied her to go and open a case. She gave them the name of the person that accompanied her as it was somebody that she was staying with. They went to the person that was mentioned to confirm that a case had been opened. They went to the place around Duncan Village. In evidence he was not able to identify the
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place he went to. He did not even recall the name of the person he spoke to. He stated that, that person confirmed that the girl was indeed raped and a case was opened. She also confirmed that she was the person that had accompanied the victim to the police station. They also confirmed the case number which was given to him.
When he was satisfied about what the girl had conveyed to him, he then asked the girl to go and point out the suspect. The girl pointed out an African male, the plaintiff in this case, who was standing next to a red VW Golf vehicle. At that time the VW Golf vehicle was stationery on Florence Street in Duncan Village. He approached the plaintiff and introduced himself as a policeman and plaintiff introduced himself as Siphiwo Feni. He enquired from the girl whether she was sure that was the person who had raped her and the girl indicated that she was certain. Thereafter he asked the plaintiff to accompany him to the police station. The plaintiff drove his vehicle to the police station. Upon arrival at the police station he explained to his Commander what happened. The Commander also asked the girl whether she was certain about the identity of the plaintiff. The girl confirmed that it was the right person. He was then satisfied and then he arrested the plaintiff. The plaintiff was detained.
Under cross-examination by Mr Mhlanti he was asked why he did not get a warrant of arrest before arresting the plaintiff. His response was that he could not
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because the offence had been committed a year ago and he was apprehensive that if he went to obtain a warrant of arrest the plaintiff would have disappeared. He stated that he needed to be sure that there was a case that had been opened before effecting an arrest. He stated that after he had established that there was a case that had been opened he was satisfied that he could arrest the plaintiff.
He recalled that the plaintiff did inform him that he was new in the area because he arrived on 8 September 2019. It was put to him that the plaintiff would also testify that he did advise the police officers at the police station that he was working for the Buffalo City Municipality as a truck driver and that during the period of the commission of the offence he was working for ANCA chickens in Keiskammahoek. Constable Witbooi confirmed that the plaintiff did tell him that he was not in town when the alleged rape incident happened. When asked whether he did not think that there were other methods of securing his attendance at court, his response was that he did not know the suspect and the complainant also did not know him.
Because the incident happened the previous year he thought that it was necessary for him to arrest the plaintiff in order to secure his attendance at court. He did not contact the investigating officer. His response was that in rape cases it is the station that usually informs the investigating officer that there is a suspect that has been arrested. He stated that once he handed over the suspect, he had nothing else to do with him thereafter. He did not know why and how the plaintiff was released.
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It was put to him that the charges were withdrawn against the plaintiff because he was advised by the investigating officer that the person who was a suspect was a foreign national who was speaking English. He responded that he had no comment to that.
He stated that he exercised his discretion and decided to arrest the suspect and secure his attendance at court. He was aware of the other methods of securing attendance. When asked about statistics in relation to drug and gun offences, he answered that indeed there was a practise within the police force in relation to drugs and guns that the statistics for a particular year should be more or less the same as the previous years. He was not sure whether that practise applies to other crimes as well including rape cases. The defendant closed his case.
The plaintiff testified and gave an account of the events of 24 November 2019. He stated that:
On that day he had travelled from his home in Keiskammahoek to Duncan Village where he was staying since he was working in East London. Later on he went to get something to eat and parked his red VW Golf next to a container. He wanted to order wings but was advised that there were many people that had placed orders already. He waited for a long time and decided to go to another container but was also told to wait as the queue was long. He went back to sit in his car and he opened his front windows. As he was seated there, two young girls approached him. One went to the container and one approached him.
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The one who approached him asked him whether he was going to town and he told her that he was not. He told her that he was waiting to order wings. The girl told him that she arrived in Duncan Village on Friday because she had visited her friend and she was rushing to go back home for school. He commented that she was too young to stay away from home the whole weekend and only worry about school on Sunday. He told her that he was still looking for a container to get wings and if he did not succeed he would go to Kentucky Fried Chicken in town.
The girl asked to use his phone and he advised her that he only had R1,39 airtime. She took the phone from the passenger seat. She moved away from the vehicle to make the call. She came back and gave him the phone. Both girls left.
When he realized that he was not getting any joy in placing his order he decided to get them from town. As he was about to move away, he saw a vehicle approaching him. He observed that it was a police van. The policeman introduced himself and indicated to him that he needed some information from him and asked him to follow them. He drove to the police station and parked his vehicle.
When he was inside the police station, he saw the same girls that he was with earlier entering the police station. One of them, who happened to be the one he was talking to, was crying. She pointed at him saying that he
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is the man that had raped her who was in a black Jeep. He indicated to the police that he did not know the girl and did not own a Jeep vehicle.
He told the police that he only arrived in Duncan Village during September 2019 and was new in Duncan Village. He told them that he was working close to the police station. He gave the police the name of his employer. There were female police officers who were heckling him and telling him to sit down and keep quiet.
It was at that point that he looked closely at the girl that was accusing him of rape and realized that she appeared to be under the influence of alcohol. He asked the police officers to use a breathalyser to establish her state of sobriety. He was told to wait for the investigating officer. After a while another officer arrived. He was a tall black officer. He asked him why he was there and he told him that the girl was accusing him of rape. That officer went to speak to the Captain. The Captain did not want the plaintiff to say anything. He did not know what they spoke about and then the officer left. He was then detained. The complainant and her friend also left.
Nobody approached him during the day on Monday, 25 November 2019. During the evening on Monday, another gentleman arrived and indicated that he was going to take a statement as the investigating officer was out of town. He told the plaintiff he was going to take a statement and charge him so that he could appear in court.
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