Robiyana v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BR Tokota J
• Judgment Date: 26 July 2022
• Court: East London Circuit Local Division
• Hearing Date: 05 July 2022
• Docket Number: 423/18

Tokota J:

Introduction:

[1]

The plaintiff instituted an action against the defendant claiming payment of R600 000.00 for damages arising from the alleged unlawful arrest and detention. The parties agreed that liability be separated from quantum of damages, and an order to that effect in terms of Rule 33(4) of the Uniform Rules of Court was accordingly made.

2022 JDR 2146 p2

Tokota J

Therefore, at this stage, the Court has to determine the issue of liability only. The claim is resisted by the defendant.

Factual matrix:

[2]

Avis Car Rental is conducting a business of hiring out its vehicles to the general public. The vehicles that are hired at its branch in East London airport are parked in front of the airport. Other vehicles are parked at the back yard. These are said tobe vehicles with minor dents having been slightly damaged.

[3]

Between 1 and 2 May 2017 it was discovered in the morning that thirty tyres were stolen from the vehicles that are kept at the back yard. The police were called and they responded. They visited the crime scene. Fingerprint experts lifted finger prints from the vehicles whose tyres were stolen.

[4]

Sergeant Myeki (Myeki) was allocated the docket as the investigating officer in the matter. He received the docket on 3 May 2017. Upon receipt of the docket he visited the crime scene where he interviewed the complainant. There was no clue about the suspects and the docket was archived.

[5]

On 25 May 2017 the fingerprint expert compared the scene of crime prints, marked LCRC 33/5/2017 with the linked impression fingerprint image of suspect Monwabisi Robiyana and found the prints to be corresponding with the his left middle finger. The expert came to the conclusion that both prints belonged to the same person.

2022 JDR 2146 p3

Tokota J

[6]

On 19 July 2017, Myeki got the docket back and started working on it. On 25 July 2017 he received a fingerprint link from the Local Criminal Record Centre, East London. The plaintiff's finger print was linked to one of the vehicles from which the tyres were stolen.

[7]

On 4 August 2017 at about 3h15 am, Myeki together with his colleagues visited the house of the plaintiff. They found the plaintiff at his house. Myeki introduced himself and informed the plaintiff of the purpose of his visit. He enquired from the plaintiff if he had been to Avis, at any stage, and the plaintiff replied in the negative. The plaintiff informed Myeki that he had never been to Avis car rental and had never worked there. Myeki informed the plaintiff of the theft from Avis and that his finger print was linked to one of the vehicles from which the tyres were stolen. He asked him to explain how it happened that his finger print was found there and warned him of his rights. In his warning statement the plaintiff is recorded as having said: "I deny the allegations against me. I never went to Avis nor work (sic) or steal at Avis premises. I drive a taxi as my work. I do not do crime. That's all I wish to state."

[8]

Myeki was not satisfied with the response from the plaintiff and concluded that he must have been involved in the theft of the tyres. He asked him where the tyres were. The plaintiff denied any knowledge of tyres. Myeki informed him of his constitutional rights and arrested him. The plaintiff was arrested on 4 August 2017 and appeared in Court on the following week on Monday, 7 August 2017 on which day he was released on bail. The case against the plaintiff was subsequently withdrawn by the State on his third appearance.

2022 JDR 2146 p4

Tokota J

[9]

The evidence of the plaintiff was mainly the denial of the allegations against him. He testified that what was written in the warning statement was all that he said to Myeki. However, he testified further that Myeki mentioned the name of his friend Myataza and that reminded him of the fact that, at some stage, he accompanied Myataza who was hiring vehicles, to collect or drop the vehicles at Avis. Myataza was not called as a witness.

[10]

The defence of the defendant was that Myeki arrested the plaintiff on reasonable grounds of suspicion of having committed an offence referred to in schedule 1 of the Criminal Procedure Act 51 of 1977 (the Act). Myeki was therefore entitled to arrest him without a warrant in terms of section 40(1)(b) of the Act.

Discussion:

[11]

Section 40(1)(b) provides:

'A peace officer may without warrant arrest any person -

(a) . . .

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

The jurisdictional facts for a section 40(1)(b) defence are that (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and

2022 JDR 2146 p5

Tokota J

(iv)

the suspicion must rest on reasonable grounds. [1]Myeki is a peace officer; theft is a Schedule 1 offence.

[12]

The sole enquiry in the matter is whether Myeki reasonably suspected the plaintiff of having committed theft at the time he arrested him at his house on 4 August 2017. As was said by Lord Devlin in Shaaban Bin Hussien and Others v Chong Fook Kam and Another [2] :

'Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; "I...