- August 30, 2022
- |Concise Law Reports (CLR), Delict
DECLICT – UNLAWFUL ARREST – DEFENCE RAISED IN TERMS OF SECTION 40(1) OF CPA; TWO MUTUALLY DESTRUCTIVE VERSIONS – UNCONTRADICTED EVIDENCE NOT NECESSARILY TRUE
The police received a call about housebreaking and that a TV was stolen at about 03h00 on 19 November 2018. They drove to the scene of the crime and in a street near the house where the housebreaking was reported, they saw a red motor vehicle with two men standing outside the vehicle and turned into that street. When they approached the vehicle, the two men jumped into the vehicle and sped off. The police chased the motor vehicle and tried to stop the vehicle with their lights but only managed to do so when they were parallel to the vehicle.
The three plaintiffs were asked to exit the vehicle and the vehicle was searched. Upon opening the boot of the vehicle, the police discovered a small flat-screen television, and the plaintiffs could not give a satisfactory answer in respect of its ownership. They took the plaintiffs to the house where the breaking was reported to confirm whether the television found in the boot was the one that was reported stolen and discovered that it was not the stolen television.
The police patrolled the area and followed the footprints they found at the scene of the crime to the street where they saw the red car parked earlier before they fled the scene. They found the television that was reported stolen behind a wall where the two men were standing earlier. They further found that the shoe print of the second plaintiff matched the shoe prints found at the scene of the crime. The plaintiffs were subsequently arrested and charged.
The charges against the plaintiffs in the magistrate court were later withdrawn by the second defendant as a prima facie case could not be established. The plaintiffs brought an action in which they claimed from the first defendant damages in the amount of N$1 500 000 each for their alleged unlawful arrest and detention and N$500 000 each against the second defendant for malicious prosecution.
Defendants deny the claim, in that the arrest was effected in terms of s 40 (1) of the Criminal Procedure Act 51 of 1977 in that a reasonable suspicion on reasonable grounds existed that the plaintiffs might have committed the crime at the time of the arrest.
HANS-KAUMBI AJ considered the matter and held that:
- Based on the evidence by the arresting officer, reasonable suspicion was formed because, when he saw the plaintiff’s vehicle speed off when they saw the police vehicle; when he found a TV in their possession and the ownership of which they could not explain, the presence of housebreaking implements, and the fact that the shoe prints of the second plaintiff matched the shoe prints found at the scene of the crime.
- The arresting officer based on the evidence available, used his discretion to arrest the plaintiffs as he deemed it necessary at the time.
- The subsequent detention was lawful as the plaintiffs were brought to a court within a period of 48 hours and were subsequently detained in terms of an order by a Magistrate in terms of section 50 of the Criminal Procedure Act.
- Further, it is necessary not to deal with the claim in respect of malicious prosecution as it flows naturally from the lawful arrest and detention, and that the prosecution in this regard could not have been malicious.
As a result, the plaintiff’s claims were dismissed with costs.
David v Minister of Safety and Security NAHCMD 30 August 2022