Mabona and Another v Minister of Law and Order and Others

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 29 July 1987
• Citation: 1988 (2) SA 654 (SE)
• Hearing Date: 19 April 1986
• Court: South Eastern Cape Local Division

Jones J:

This is an action for damages for alleged unlawful arrest, D imprisonment and assault. The plaintiffs initially proceeded by way of separate summonses. However, their causes of action arise out of the same background facts, their pleadings are almost identical, and the parties rely to a large extent upon the same witnesses. Their actions were accordingly consolidated in terms of Rule 11.

E The plaintiffs are both middle-aged married women. It is common cause that in the early hours of Friday, 1 July 1983 they were both arrested at their homes in Zwide township, Port Elizabeth, and taken into police custody. They were both interrogated at the offices of the Port Elizabeth murder and robbery unit of the South African police. F Thereafter the first plaintiff was detained in the police cells at the Swartkops police station in Port Elizabeth until almost 20h30 on Saturday, 2 July 1983. The second plaintiff was detained at the Baakens Street police station in Port Elizabeth until 21h30 on 2 July 1983. They both allege that they were assaulted during the course of their interrogation, and that their arrest and detention was without lawful G justification. The second, third, fourth, fifth, sixth and seventh defendants admit that they were members of the group of policemen who were present when the plaintiffs were arrested. Some of them admit that they were present when they were interrogated, but the allegations of assault are denied. It is also not disputed that the six policemen were acting in the scope of their employment as servants of the first H defendant at the time. The second defendant was in command, and he has accepted responsibility for the arrest and detention. Indeed, at the conclusion of the trial, counsel for the plaintiffs conceded that he had not made out a case against the other five policemen on this claim, and that they were entitled to be absolved from the instance with costs. The issues which I must determine are, firstly, whether the arrest and I detention of the plaintiffs was unlawful, and, if so, the quantum of damages to which they are entitled from the first and second defendants; and, secondly, whether the plaintiffs were assaulted as they allege, and, if so, the quantum of their damages from the defendants who are proved to be responsible.

The onus of proving the lawfulness of the arrest and detention rests upon the first and second defendants (Matlou v Makhubedu 1978 (1) SA 946 (A) J ;

Jones J

Botha v Lues 1983 (4) SA 496 (A) at 502; Visser v Minister van Polisie 1983 (2) PH J34 (O)). They seek to discharge this onus by relying upon the protection afforded by s 40(1)(b) of the Criminal Procedure Act 51 of 1977 in respect of the arrest, and s 50 of the Act in respect of the detention. Section 40(1)(b) reads as follows: A

'A peace officer may without warrant arrest any person - B

...

(b)

whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.'

According to the pleadings the plaintiffs were arrested because the defendants reasonably suspected that they had been involved in a C conspiracy to commit a robbery which took place on 16 May 1983 at the premises of the Kempston Road branch of the Standard Bank in Port Elizabeth or that they had received money stolen in the course of the robbery, knowing that it had been stolen. The further particulars to the plea add that the second defendant had received information that the plaintiffs were in possession of money which was stolen in the course of D the robbery or that they knew where it was.

A conspiracy to commit robbery and the crime of receiving stolen property knowing it to have been stolen are both offences mentioned in Schedule 1. The second defendant is now a captain in the South African police and was at the time the senior officer in command of the Port E Elizabeth murder and robbery unit. He is a peace officer. The section therefore authorises the arrest of the two plaintiffs without warrant, provided that the second defendant reasonably suspected them of having been involved in the conspiracy to rob the Standard Bank on 16 May 1983 or else of being in possession of the money stolen during the robbery, F knowing it to have been stolen.

The crucial issue in the wrongful arrest claim, then, is whether the second defendant entertained a reasonable suspicion that the plaintiffs had committed one or other of the offences referred to in the pleadings. The second defendant's evidence on this issue must be analysed in detail. He testified about the armed robbery at the Standard Bank on 16 May 1983. As I understand his evidence, it was the practice of a firm G known as United Dairies to deposit a considerable amount of money - in this instance approximately R70 000 with the Standard Bank at Kempston Road, Port Elizabeth on or about the sixteenth day of each month for payment of staff salaries. The money was brought to the bank by armed security guards employed by United Dairies using a vehicle which was H parked in the backyard of the bank's premises. The guards were admitted to the bank itself just before it opened its doors to the general public. On 16 May 1983 five armed robbers wearing masks attacked the security guards in the yard behind the bank and robbed them of about R70000. They made their getaway in a private vehicle which they subsequently burnt. The murder and robbery unit launched an immediate I country-wide investigation. However, they had pitifully few leads. The robbers are still at large, the case remains unsolved and police investigations continue. On 30 June 1983 the second defendant received a telephone call from an informer who advised that he had information which would help with the investigations. He arranged to meet the J informer, but the informer did not keep the

Jones J

A appointment. Later that morning the informer telephoned again, a second appointment was arranged, and this time he met with and spoke to the second defendant. The informer told the second defendant that a large amount of money was hidden in the first plaintiff's house, that the first plaintiff knew the second plaintiff, that the second plaintiff was also aware of the money hidden in the first plaintiff's house, and that B the second plaintiff was employed at United Dairies and could possibly have passed information about the banking of the money on to the robbers. The informer had not seen the money himself but he had been told by the plaintiffs of its presence at the first plaintiff's house. It was on the strength of this information that the second defendant C arranged for members of his unit to proceed the following morning to the plaintiff's homes to conduct a thorough search there, and to arrest them.

The second defendant's evidence on this leg of the case was not challenged or contradicted. It contains no inherent improbabilities. On the contrary it provides a plausible reason for the actions of the D police on the morning of 1 July 1983. The second defendant explained that the police frequently obtain this sort of lead or information from informers, and that it was his duty to follow it up. I accept his evidence. There can be no doubt that he was given information which caused him subjectively to suspect the plaintiffs of involvement in the robbery. The question is whether his suspicion was reasonable. The test E of whether a suspicion is reasonably entertained within the meaning of s 40(1)(b) is objective (S v Nel and Another 1980 (4) SA 28 (E) at...