Tinto v Minister of Police

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 15 October 2013
• Citation: 2014 (1) SACR 267 (ECG)
• Docket Number: EL18/2012
• Counsel: A Da Silva for the plaintiff. GH Bloem SC (with M Mpahlwa) for the defendant.
• Court: Eastern Cape Division

Pickering J:

[1] This is an action based, initially, on defamation, injuria and on B invasion of privacy, in which plaintiff claims the sum of R500 000 for damages. The defamation claim was jettisoned during the course of the trial. With regard to the remaining claims plaintiff pleaded that the police, including a certain Warrant Officer Smith (Smith), wrongfully, and with the intent to injure him, 'demanded to search the plaintiff's C motor vehicle without a search warrant nor just and lawful cause; said that all lawyers deal with criminals when the plaintiff introduced himself as an attorney; and asked what the plaintiff was hiding when the plaintiff refused to accede to the search of his motor vehicle without a warrant'.

[2] Plaintiff pleaded further that this conduct 'humiliated and degraded' him and 'invaded his constitutional right to privacy'. D

[3] Defendant in his plea admitted that Smith did not have a search warrant when he requested plaintiff to allow the police to search his vehicle, and admitted further that when plaintiff refused such permission Smith had asked him 'why, if he had nothing to hide, he did not allow his E vehicle to be searched'. Defendant denied, however, that Smith had 'demanded' to search the vehicle and denied that he had said that all lawyers deal with criminals.

[4] Defendant pleaded further that Smith had requested plaintiff to allow the police to search his vehicle because he held the reasonable F belief that there was an article, referred to in s 20 of the Criminal Procedure Act 51 of 1977, in his vehicle and believed on reasonable grounds that a search warrant would have been issued to him if he had applied for one, but that the delay in obtaining such a warrant would have defeated the object of the search. The defendant pleaded further that, after Smith had requested plaintiff to allow the policemen to search G his vehicle, plaintiff had requested the police to allow him to drive his vehicle to his office where it could be searched, but that, on arrival at the office, plaintiff had refused to allow any search to be conducted.

[5] Plaintiff is an attorney of this court, having been admitted as such during 1999. He is presently residing and practising in Pretoria as Velile H Tinto and Associates, although he also has what he termed as being a 'national footprint', with offices in Johannesburg, Cape Town, KwaZulu-Natal and East London.

[6] During November 2010 he was practising in East London, with his offices being at 5 Pine Park. His firm at that time was on the panel of I attorneys for Standard Bank, First National Bank (FNB) and Nedbank.

[7] On the morning of 11 November 2010 he was working in his office until lunchtime. He needed to deposit money at Standard Bank in Frere Road in the vicinity of the Vincent Park Shopping Mall. Before going there, however, he wished to withdraw money from the ATM at the FNB J

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A which was situated at Vincent Park Mall. He accordingly proceeded in his red Volkswagen Polo GTI motor vehicle to the particular section of the mall where, it is common cause, Nedbank, FNB and Absa banks are situated.

[8] He had with him in the car two male passengers. One of the B passengers was a certain Tamsanqa Mafa, the 'cousin brother' of a friend of plaintiff who was employed as an attorney in the office of the State Attorney, Mthatha. The other passenger was a friend of Tamsanqa. Tamsanqa had come to plaintiff's offices to borrow money and plaintiff intended to draw cash for this purpose from the ATM at the FNB.

C [9] All the parking spaces next to FNB were full. Plaintiff accordingly double-parked his motor vehicle, but left Tamsanqa in the driving seat in case his vehicle had to be moved. He withdrew money from the ATM and returned to his vehicle. According to him he was parked at the mall for no more than five minutes. From the mall he drove to the Standard Bank D in Frere Road. The parking lot in front of the bank was full and he therefore proceeded to the Balfour Park parking lot in the next block where he parked in front of a shop known as Rama's. He sent Tamsanqa to deposit his money at the Standard Bank whilst he waited in his motor vehicle. He was still waiting, checking his petrol slips, when he noticed a police vehicle park next to him. A policeman, whom it is common E cause was Smith, came up to his window. Plaintiff assumed that Smith was admiring his car, but, instead, Smith knocked on his window. He asked plaintiff what he was doing, to which plaintiff replied that he was 'auditing'. Smith then asked plaintiff where he had been during the last 30 minutes. Plaintiff explained to him that he had come from his office F via Vincent Park Mall. Smith then informed plaintiff that he wished to search the motor vehicle. Plaintiff asked why. Smith replied that the police had received a call from Nedbank to the effect that a silver Mercedes-Benz and a brown Jetta were suspected of being involved in the planning of a robbery. Plaintiff pointed out that he was driving a red Volkswagen, to which Smith added 'and a red Polo'.

G [10] Plaintiff then told Smith that he was a practising attorney. He produced a card with his picture on it identifying him as such, and he also showed Smith his identity document. According to plaintiff Smith then stated: 'I know the lawyers — they are dealing with criminals.' He insisted that he wanted to inspect the boot of the motor vehicle. H According to plaintiff Smith also asked him what it was that he was hiding by refusing to accede to his request. Plaintiff denied, as was put to him under cross-examination by Mr Bloem SC, who appeared for defendant together with Mr Mpahlwa, that Smith had uttered these words at a later stage at plaintiff's offices.

I [11] Plaintiff stated that, as a law-abiding professional man, he was deeply insulted by both these statements which implied, so he said, that he was not only associating with criminal activities, but was himself involved in such activities.

[12] Smith then told plaintiff that he did not have 'all the time', which J plaintiff construed as meaning that Smith intended to search the motor

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vehicle whether or not plaintiff agreed thereto. Plaintiff did not want A Smith to conduct what would be an embarrassing search in public. He accordingly told him that if he wanted to do anything he could do it at plaintiff's offices which were close to Balfour Park. He denied having requested to be allowed to drive his vehicle to his offices. Smith agreed to follow him to the offices. In this regard plaintiff also denied that he had B agreed that his motor vehicle could be searched at his offices. He was intending on arrival at the offices to reason with Smith in the hope that he would accept his word and abandon his prospective search.

[13] On the way to the offices he telephoned Mr Nico du Plessis (Du Plessis) who was then, according to plaintiff, his candidate attorney, C and told him what had happened. On arrival Du Plessis was waiting for him outside and spoke to Smith. Smith was told that if he wished to proceed with the search he should get a search warrant. Plaintiff initially denied that it was at this stage that Smith had asked him what it was that he was hiding. Under cross-examination, however, he stated that the police 'continued to ask me what I was hiding'. D

[14] After some further discussion, plaintiff had a change of heart. He told Smith that he could go ahead and search the vehicle, saying that he had nothing to hide. The police, however, said it was 'too late' and left the scene without searching the vehicle. E

[15] Nico du Plessis stated in his evidence that at the time of the incident he was in fact a practising attorney in the employ of Velile Tinto and Associates. He is presently a director of Tinto Du Plessis Incorporated. He confirmed having been telephoned by plaintiff who asked him for assistance. At that time Du Plessis' father was Deputy Director of Public F Prosecutions in Mthatha. He telephoned his father to reassure himself as to the circumstances in which the police could search a motor vehicle without a warrant. His father duly advised him of the legal position.

[16] Plaintiff then arrived in his motor vehicle followed by the police motor vehicle. Plaintiff told him what had happened in front of Rama's and also stated that whilst at Rama's he had asked the police to follow G him to his office. Du Plessis discussed the matter with Smith and asked what the problem was. Smith told him that he believed that plaintiff's motor vehicle was 'a suspected vehicle involved in bank robberies'.

[17] According to Du Plessis he was extremely embarrassed by the H spectacle unfolding in the office parking lot in front of clients and staff who had begun peeping out of the windows. He asked Smith whether he had a search warrant. Smith replied that he did not. Du Plessis then told him that they would not consent to a search of the motor vehicle without a warrant, to which Smith answered that he could go to court and get one. He told Du Plessis, however, that, as Du Plessis well knew, it would I take a long time to obtain one. Du Plessis replied that, to the contrary, Smith could obtain one as a matter of urgency within an hour.

[18] The discussion continued for, in Du Plessis' estimation, approximately 20 – 30 minutes. Plaintiff suddenly told the police that they could search the motor vehicle. Du Plessis thought that plaintiff had become J

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A frustrated and tired of the matter. The police, however, did not search the vehicle, but just left. Du Plessis had no idea why they should have done so after having been so insistent about searching, but surmised that they had realised that they had made a mistake. He denied having been belligerent or having bullied the police as was put to him by Mr Bloem.

B ...