SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF

( DIVISION, )

Case Number: 17424/2011

In the matter between:

SAMMY P LEUTLWETSI Plaintiff and

MINISTER OF POLICE Defendant

Delivered: 29 January 2018

JUDGMENT

BOQWANA, J

Introduction 2

[1] The plaintiff instituted an action against the defendant, claiming damages in the amount of R 5 000 000.00, in respect of an alleged unlawful arrest and assault. At the outset, parties advised the Court that the matter will proceed both on merits and quantum.

[2] The quantum claimed comprised:

[2.1] Past loss of earnings – R1 1150.00

[2.2] Future loss of earnings – R8 850.00

[2.3] Past hospital and medical expenses – R10 000.00

[2.4] Future hospital and medical expenses – R12 000.00

[2.5] General damages for pain and suffering, depravation of liberty, loss of amenities of life and shock – R4 758 000.00

[2.6] Contumelia and impairment of dignity – R200 000.00

[3] The plaintiff has since abandoned the claims for past and future loss of earnings, as well as past and future medical and hospital expenses, and reduced the general damages claimed to R378 000.00.

[4] The plaintiff testified in his case and also called three witnesses, namely, Noluthando Sidzumo (‘Sidzumo’), Cheryl MacKlay (‘MacKlay’) and Mandla Sibeko (‘Sibeko’), whilst the defendant called Linda Tolbadi (‘Tolbadi’), Albert Jamjam (‘Jamjam’) and Monde Mfeya (‘Mfeya’).

Plaintiff’s evidence

[5] The plaintiff testified that he was 36 years old and resided at no.[…], NY […], . On Thursday 20 November 2008, sometime after 12:00 in the morning, he was arrested in his room situated outside the main house, in the presence of his girlfriend, Sidzumo, by members of the South African Police Service (‘SAPS’). He testified that whilst he and Sidzumo were sleeping, he heard the door being kicked. It transpired that the door was kicked open by the police who entered the room carrying firearms. The television set in his room was on, but the lights were off. The police entered with torches, which lit up the room. None of them were dressed in police uniforms. Without identifying themselves, they started asking him why he [and others] took “the old age” money. They then put a plastic bag over his head, which they squeezed tight around his face, making it difficult to breathe. Whilst they were doing this, they were kicking him. His girlfriend would have seen what was 3

happening. The plaintiff passed out and when he regained consciousness he was inside a Condor motor vehicle. He was handcuffed, with his hands behind his back. The handcuffs were tight and the police continued to tighten them even further, so as to cause pain. He sustained injuries on his left wrist. He showed a linear blackish scar of less than 5 cm to the Court, which he alleged was the injury caused by the handcuffs.

[6] He noticed that there were other men in the vehicle. There were a lot of police officials present. None of the vehicles were marked as police vehicles and they were white in colour. He was taken to the Bellville South Police Station. Once there he and another person, known as Power, whom he knew as residing at Tambo Square, were taken to a room where they were assaulted by police officials. Power was the first to be handcuffed and they ordered him to stand on his knees. The police put a plastic bag over Power’s head, in the same manner as they had done to the plaintiff when they assaulted him at his home. They then told the plaintiff to watch as they ordered Power to lie on his stomach, whilst they sat on his back holding the plastic bag from behind and tightening it. He could remember two of the officials involved: Tolbadi, the Investigating Officer (who had also been involved in the incident earlier at his house) and a gentleman wearing spectacles.

[7] Whilst Power was on the floor, the plaintiff was also instructed to stand on his knees; however he was not handcuffed, he was told to watch. Even though the plaintiff was not restrained at this point, he was unable to escape, as the exit was blocked by burglar bars. Power then revealed that he [and others] had broken into a place in . The police told the plaintiff to pray. Power was ordered to sit on the chair and was given a drink. The plaintiff was then ordered to lie on his stomach and was tortured in the same manner as Power had been. The torture continued until daybreak, as a result of which he was sore and his hands were swollen, but he did not sustain any bruises. Throughout this ordeal he fainted several times, and was on each occasion revived by having water poured over him.

[8] Thereafter his fingerprints were taken. He and Power were then placed in a cell which was approximately 5 x 8 metres in size and occupied by about 15 people. It had one window with burglar bars. It had mattresses which, at night, they would put together so that everyone could have a place to sleep. He could not sleep as he was in pain.

[9] At around 5 or 6 o’ clock in the morning he informed a police captain that his swollen hands were causing him much discomfort and that he had difficulty eating. The captain indicated that he would investigate, but subsequently informed him that as he had been 4 arrested for a serious matter, the captain could not assist him. No other assistance was forthcoming. His hands improved about three weeks later, while he was detained in Pollsmoor.

[10] On Sunday 23 November 2008 he was interviewed by Investigating Officer Tolbadi and informed that he had been arrested on account of his fingerprints having been found on a Volkswagen Jetta 4. It was alleged that he had driven this vehicle and had provided transport to an unnamed person, who had then committed a robbery. He was charged and his first court appearance was Monday 24 November 2008, with Tolbadi in attendance. In court he was informed of his right to legal representation and was given 7 days to arrange for same. His family and his girlfriend arranged for Ms Sharon Williams (‘Ms Williams’) to represent him. The matter was then postponed for a bail hearing.

[11] Approximately a month later a formal identity parade was held, with Tolbadi and Ms Williams in attendance. It was communicated to him that he had not been identified at the parade. Sometime in early 2009 his bail application was heard, at which point it came to light that the fingerprints in the vehicle were not his, though it was not revealed to him to whom it did belong. The application was postponed again, as it appeared that he had another pending matter in . At this point Ms Williams’ mandate was terminated and Advocate Pienaar stepped in. During a further bail hearing in April 2009, he finally had an opportunity to inform the court of how he was arrested. Bail was granted in the amount of R1000, though he no longer has the bail receipt, as the money was paid back after the case was withdrawn. According to the plaintiff the magistrate wanted to withdraw the matter, saying it had no merits.

[12] The case was sent to Wynberg Magistrate’s Court, where, after several postponements, it was finally withdrawn in 2012. While the State wanted to proceed with the case, none of the nine people in attendance knew him, resulting in the withdrawal. His ordeal has left him traumatised and fearful of the police. He occasionally dreamt of the incident, but was not currently receiving any counselling.

[13] In cross examination the plaintiff testified that while he knew where the Ikwezi Community Centre (‘Ikwezi’) was, as it was close to where he lived in Gugulethu, he did not know anything about a robbery there. On the night of 13 November 2008 while he and his girlfriend were asleep at his home, at approximately 6 to 7 o’ clock, he had been woken by gunshots. He was later informed by some of his family members, who had gone to 5

investigate the gunshots, that there had been a robbery. Furthermore he knew nothing about a white Volkswagen Jetta 4, which had allegedly been hi-jacked in the vicinity of Newlands or Bishops Court prior to the robbery. He stated that he knew Lulama Mpambo (‘Mpambo’) – who was referred to variously as ‘Mpanzo’ and ‘Mpango’ by counsel and other witnesses – as they had grown up together and lived opposite one another. He confirmed that there had not been any animosity between them, but that Mpambo had been untruthful in her statement to the police, as he had not been involved in the robbery and had not given Mpambo a lift on the morning of 13 November. He indicated to the Court that his room in his home was about 6 x 6 metres in size (by object reference in court), but maintained that he knew nothing of measurements.

[14] He denied that the police knocked at his door on the day of his arrest, and maintained that they just kicked the door in. He stated that he would have heard if they had knocked (even if he was asleep). He never saw any flying squad, the presence of which was suggested on behalf of the defendant. When he woke up in his room he was dizzy, there were a lot of people and they were making noise. The police said that the light in the room must be switched on. He was surprised to see himself being lit up by torches and having firearms pointed at him. The police kicked him in his chest and stomach, causing him to be short of breath. They then asked him to stand up from the bed. He seemed to concede that the police did not kick him when he was lying on the bed; they wanted him to get up. He was asked how it was possible that the police could kick him in his chest whilst standing, to which he stated that they kicked him on his feet whilst he was standing. He could not explain how they kicked him in his chest while he was standing, but maintained that he did not know but they kicked him. The police slapped and kicked him in his room.

[15] He conceded that there had been no marks on his face or body from being slapped and kicked. He conceded further that the only things he complained about to the captain were that his hands were sore or swollen because of the handcuffs, and that he had difficulty swallowing because his throat was sore since he had been throttled or strangled.

[16] He seemed to think that he had been handcuffed from past after 12:00 at his home, until dawn, at about past 5 or past 6. When it was put to him that he did not tell the magistrate that he was allegedly assaulted by the police, his answer was that the magistrate never asked him that. It was also put to him that he did not tell the prosecutor that he was assaulted by the police; his answer was that he did not get a chance to speak about that with him. He 6

conceded that whilst he was facing the charges in relation to the attempted robbery at the Ikwezi, he had another pending matter regarding possession of a firearm. The firearm case was subsequently withdrawn.

[17] It was put to him that the case regarding the firearm was withdrawn because the State wanted to centralise the charges, as the firearm was allegedly used to commit several offences stretching from Port Elizabeth to Grabouw, as well as several places in Cape Town, and that that was why Tolbadi opposed bail in the attempted robbery at Ikwezi. The plaintiff testified that he did not know about those facts, but that the case that involved the firearm was run at the same time as the case of the attempted robbery at Ikwezi.

[18] Sidzumo testified that she and the plaintiff were in a relationship from 2006 to 2012 and that they have a 6 year old child together. On 13 November 2008 they were still dating. She first heard about the robbery when police came to the plaintiff’s house. On 13 November 2008, she and the plaintiff were woken up by shots. At the time, she was supposed to go to work. She went outside to go and fetch some water, preparing to take a bath. The plaintiff’s sister and father informed her about the robbery.

[19] The plaintiff then took her to the terminus, since she was going to work. When she arrived at work in Claremont she received three “please call me” messages from the plaintiff’s phone number. She called him to ascertain the reason for the messages. He told her that the police had been at his place and that they wanted to take him to the station, as they alleged he had been involved in a robbery. The plaintiff suggested that she come back from work and accompany him to the police station to confirm that they had been together that night. She did not go to the police station. She phoned the plaintiff again later, who then told her that she did not have to come. She seemed to think that the plaintiff went to the police station with his sister.

[20] She went to the plaintiff’s house and found that the police had kicked the door down. The plaintiff informed her that he had gone to the police station and had been told that the police made a mistake by going to his house.

[21] In regard to the events of 20 November 2008, Sidzumo testified that she had been asleep [at the plaintiff’s home], that the lights had been off, but that the TV was on, as they did not usually switch it off. She was woken up by the doors being kicked in and torches being shone on them. The police had kicked the door open and wanted to know from the 7

plaintiff whether he was known as Sammy. There were a lot police, but she was too shocked to count them. They were wearing normal clothing and some wore bullet-proof vests.

[22] The plaintiff confirmed that he was Sammy. The police did not introduce themselves; they just wanted to know from the plaintiff where the old age pension from the Ikwezi was. When the plaintiff told them that he knew nothing about the money, the police assaulted him by smacking his face and kicking him. There was also one official who had a golf stick with which he hit the plaintiff. At that stage the plaintiff tried to prevent them from hitting him. He had been seated on the bed and they hit him until he fell to the ground, whereupon he was dragged outside. He was powerless to resist, due to having been assaulted. Sidzumo started crying and one of them said “hit this thing”, referring to her.

[23] One policeman kicked her in the stomach and she fell onto the bed. She did not know where they were taking the plaintiff. They dragged him towards the vehicles that they had arrived in. She went up to the gate, but could not see which vehicle they put the plaintiff in, because there were quite a lot of vehicles, most of which were white in colour.

[24] Before he was dragged into the vehicles, the plaintiff’s mouth had been bleeding. When asked whether she saw any injuries on the plaintiff, she demonstrated by placing her hand on her forehead, but she could not recall which side of the forehead the injuries were on. He had also been bleeding around one eye. She had seen these injuries when the plaintiff was being assaulted in the room. She saw the plaintiff again when he appeared in court, at which point he showed her other injuries on his feet. He told her that he also had wounds on his arms. Sidzumo demonstrated with both her hands on her arms. Pointing to her left wrist, she stated that the injury was reminiscent of someone being scratched very severely.

[25] She only saw the plaintiff again when he came back from Pollsmoor, some 5 or 6 months later. He had lost some weight. She became scared of sleeping at the plaintiff’s place, because he would wake up every time he heard the sound of a vehicle.

[26] In cross examination, Sidzumo testified that the plaintiff was also hit with a fist in his face. She could not say for how long the assault went on. The official, who was most involved in assaulting him, was a black gentleman, who wore spectacles. She also could not say whether his bleeding eye was blue or swollen, as she had been scared and shocked, and had been crying. 8

[27] As they dragged him outside, the plaintiff exclaimed “yoh-yoh”, as he was in pain. She put on her trousers and followed them out. She did not think that the plaintiff understood what was happening or that he was conscious when he was outside because he was powerless. She could not speak to the plaintiff because she was also scared, shocked and crying.

[28] When asked if she had seen something like a rubber tube or a rope being used to torture him, she testified that a plastic bag that looked transparent was put onto him. At that point she was not thinking straight and did not look at the time, therefore she could not say how long it took from when the police got into the room to when they took the plaintiff outside, but it was not quick.

[29] She denied that Tolbadi entered the room only after the place was secured by the NIU. She stated that Tolbadi, whom she remembered to be dark, entered with other police. She did not know his identity at the time but got to know later that Tolbadi was the person handling the plaintiff’s case. She did not remember Tolbadi introducing himself as that was 8 years ago. She also did not remember Tolbadi telling the plaintiff the reason for the arrest, but could remember the question “Where is the money of the old age pension?”

[30] It was put to her that her evidence that the police asked where the pension money was, was nonsensical because the robbery was unsuccessful and therefore no money had been stolen.

[31] MacKlay testified that the plaintiff was her younger brother and that she lived in a flat situated next to the plaintiff’s. On the day of the robbery she had heard shots and quickly ran out, to check what was going on. The plaintiff was in his room. The night before he had been in the company of Sidzumo when he came home and after they had heard the shots, she saw Sidzumo. She saw the plaintiff that morning, because when she ran out the plaintiff came with the kettle to go and fetch some water from the tap. She told the plaintiff that she was going to Ikwezi to go and see what was happening. She went to Ikwezi with a lady by the name, Nobuntu. On arrival at Ikwezi they saw a lot of people, who told them about the robbery. They went back home and told the plaintiff of what had happened. The plaintiff and Sidzumo had been sitting in their room and were surprised by their account of the robbery. Sidzumo was about to go to work because she started work at 11 o’clock.

[32] While MacKlay was at her friend’s place, she received a call telling her to come home quickly. When she arrived at home she was told that there had been a lot of police vehicles, 9

but that they had left already. Having been asked to tell the Court what she saw and not what other people told her, she stated that on her arrival at her home there were four private vehicles looking for the plaintiff. The drivers of these vehicles said that they were detectives. They did not say where they were coming from. When they said they were looking for the plaintiff, she called him over the phone and asked where he was. He said he was on his way after dropping Sidzumo off at work.

[33] She and the plaintiff then went to Gugulethu Police Station. When they arrived there, they found the person who was in charge for the day. MacKlay told the official that the plaintiff was being sought after by the police, but they were told that there was no case yet, he could go home. They then went home after which nothing happened.

[34] One Thursday night while they were asleep, police arrived at their home. One of the police was wearing a police uniform, some were wearing jeans and t-shirts and some had bullet proof vests on. They came and kicked the plaintiff’s door open and a lot of them entered the room. As to what happened next she could not say, but she could hear the plaintiff crying. They stayed in that room for a period of almost an hour assaulting the plaintiff. Sidzumo was with the plaintiff inside his room. Police came out of the plaintiff’s room, carrying him. They put him in a vehicle, but she did not know whether the vehicle was white because it was at night.

[35] Having been asked to explain how the plaintiff was being carried, she said that they were dragging him. She did not know whether he had handcuffs on, but his hands were at his back. When asked if he was walking on his own feet, she stated that he was not, they were dragging him. He was put in the police vehicle and then the police left with him. Four days passed without her seeing the plaintiff. They went to look for him at Bellville South police station. They were told that he was there, but that they would not be able to see him, because he was “swollen up”. They eventually saw him at Athlone F Court, but did not have a chance to talk to him. She went to see him at Pollsmoor and he showed her his hands through the glass. There were marks on his hands. He tried to show her his legs, stating that he had marks on his legs from being dragged, but she could not properly see. She met up with him again when he appeared in the Athlone Court. She seemed to think that he stayed in custody between 4 and 6 months.

[36] Sibeko, also known as Power, testified that he was arrested in Tambo Village, , where he resides, for an offence unrelated to the Ikwezi robbery. After arresting 10 him, the police stopped at NY […] Gugulethu, for about 2 to 3 minutes, after which they came back with a person (who later became known to him as the plaintiff). They held this person upside down - with his head facing down and his feet up. The plaintiff’s pants were torn and looked like a skirt. Police were assaulting him as they brought him to the vehicle, which was a kombi. They were swearing at him and also saying to him “…you said you did not know Xhosa…but we told you, you will know Xhosa now.” They then threw the plaintiff inside the kombi. The police were also assaulting others that were inside, that had been arrested, but concentrated more on the plaintiff. They then placed a plastic bag over his head and tightened it, preventing him from breathing. This was all being done quickly. Those arrested were then taken to Bellville South police station. Sibeko was placed in the same room with the plaintiff. The police assaulted them in that room, asking them to tell the truth about robberies that they were allegedly involved in. Sibeko had been arrested in connection with a robbery that took place in Paarden Eiland. There were about eight to ten police in that room, taking turns to hit him and the plaintiff. They also placed the same plastic bags over their heads, suffocating them, while asking the plaintiff about a white Jetta. The plaintiff fainted whilst they were pulling and holding him down. They poured water on him and put the plastic bag back again. They also asked the plaintiff about a robbery at a centre in Gugulethu and about firearms. The plaintiff denied any knowledge of these. This carried on for more than three hours. Sibeko decided to admit to everything, because of the unbearable nature of the assaults. The plaintiff later decided to do the same thing. The assaults then stopped. The plaintiff’s arms were swollen because of the handcuffs. He, however, later stated that the assault took time but he could not say how long. Sibeko, who was dizzy at that stage, was then taken to another cell. Two hours later the plaintiff was placed with him in the same cell. Sibeko and his co-accused were taken to court and the plaintiff was left in the cells. They met again in Pollsmoor and that was the last time he saw the plaintiff.

[37] In cross examination, Sibeko testified that he could not recall whether the plaintiff had been handcuffed when the police brought him to the vehicle, as it was a long time ago. As the police brought the plaintiff to the vehicle, they were assaulting him. At that time, the plaintiff was saying “sorry, sorry”, but he did not know what the plaintiff was saying sorry for. That is when the police made the remark that “we told you that you will be able to speak Xhosa”.

Defendant’s case 11

[38] Tolbadi testified that he was a Captain in the SAPS. He is attached to the Directorate for Priority Crime Investigation (‘DPCI’). In 2008 he was a Constable in the Organised Crime Unit. On 20 November 2008 [later stated to be 21 November 2008], at approximately 12:30 am, he was in Gugulethu conducting a police operation in respect of an incident that happened on 13 November 2008, involving the robbery of a pension pay out at Ikwezi in Gugulethu. The robbery took place at around 7:30 in the morning.

[39] On 20 November 2008 he had received fingerprints linked to a vehicle that was involved in the robbery, a white Volkswagen Jetta. The white Jetta had been reported stolen in the Claremont area and was found abandoned after the robbery. The fingerprints found on a handle of the passenger door belonged to a certain lady - Mpambo - who lived in Gugulethu. As soon as he received the fingerprints report, he informed his commander, Captain Jamjam. Mpambo told him [Jamjam] that she had been walking down a street in Gugulethu early in the morning, when a white Jetta stopped next to her. She opened the door and the driver, by the name of Sammy [Pitso], the plaintiff, asked where the Yellow Door Club was. The Yellow Door Club is opposite the Community Hall where the robbery took place. Mpambo knew the plaintiff. According to Tolbadi their houses were a kilometre apart. Captain Jamjam then obtained a statement from Mpambo.

[40] They then embarked on an operation to arrest the plaintiff, with Jamjam in charge of the operation. They involved the National Intervention Unit (NIU), flying squad and the local police. The function of the NIU is, if there is a dangerous suspect such as in cases of robbery, to secure the premises, open them, arrest the suspect and call the investigating officer. The NIU is not involved in the investigation before or after the operation.

[41] On 21 November 2008 at approximately 12 midnight they went to the plaintiff’s address. There were about 14 uniformed police officers, while Tolbadi and Jamjam wore civilian clothes. As soon as they arrived at the premises, members of the NIU, who were four in number, took the lead. Tolbadi was inside the yard not far from the door. The NIU members knocked and said “Police, open the door” and it was quiet. They knocked again. He does not know how they opened the door. One member was at the door and the other three members went inside the house. Within a second, they called him and Jamjam to come inside. They found the plaintiff sitting on the bed with his hands behind his back, handcuffed. The placing of handcuffs by members of the NIU was normal procedure. Besides the police and the plaintiff, no one else was in the room. He identified himself to the 12

plaintiff by showing his appointment certificate and informed the plaintiff about the arrest and his rights. The plaintiff wore short pants and a T-shirt. He took off the plaintiff’s handcuffs and told him to put on a jacket and long pants. After that he took him to the police vehicle outside. The vehicle was an unmarked Condor. The other police vehicles that accompanied them were marked.

[42] It took approximately two minutes to enter the plaintiff’s room and take him to the police vehicle. The plaintiff was never assaulted in his room. He did not notice any other police officer assaulting the plaintiff. The plaintiff walked to the Condor with him and his hands were at the back as he was handcuffed. There was another person, whose name he could not remember, in the Condor. The plaintiff was taken to Bellville South police station. He processed the suspect by putting him on the books, taking his fingerprints and taking a warning statement. He then detained him and prepared for the court appearance. He did not recall the plaintiff being questioned about the Jetta and the robbery by any of the police officers, as the plaintiff was with him and Jamjam the whole time. He denied that anyone assaulted the plaintiff in any manner alleged, or whatsoever, as the plaintiff was in his presence until he was detained in the cells. It was put to him that an allegation was made by one of the witnesses that the plaintiff was hit with a golf club. He stated that he did not remember anything about a golf club.

[43] After the plaintiff was detained, he took him to the Athlone Court. He could not remember when that was. The plaintiff appeared fine; there were no bruises or scratches on him. He was referred to the occurrence book, where Captain Wessels from Bellville South police station made an entry on 21 November 2008 that upon detention the plaintiff was free from any visible injuries. According to Tolbadi, the charge office commander would not detain him as a suspect if he complained of any injuries. He would ask the Investigating Officer to take him to hospital before he could detain him. If the entry states that the suspect is free of visible injuries, then it shows that there was no complaint.

[44] Tolbadi opposed the plaintiff’s application for bail, but bail was granted. He never made a statement regarding another case that the plaintiff was involved in, as alleged by the plaintiff.

[45] At the time the plaintiff appeared in court, there was another case pending against him, according to his profile, and it entailed, according to his recollection, a firearm. He did not know anything about charges being withdrawn in the case involving the firearm. With 13

regards to the case of robbery, charges were provisionally withdrawn against the plaintiff. According to the prosecutor, Advocate Mfeya, there was a ballistic link: the firearm that was used in the pension pay out robbery in Gugulethu was also used in other robberies in Grabouw, Mitchell’s Plain and the Eastern Cape, or Johannesburg, if he was not mistaken. Mfeya wanted to centralise the cases because of the ballistic link. He wanted all the cases to run together with the Western Cape case.

[46] In cross-examination, Tolbadi conceded that the fingerprints did not link the plaintiff to the vehicle. He also conceded that only the name “Sammy” appears in the statement taken from Mpambo, the name and surname “Pitso Leutlwetsi” do not appear.

[47] He was just eight metres away from the door at the plaintiff’s house when the members of the NIU had gone into the plaintiff’s room. He could not see how they opened the door as they were standing in front of it. In some cases that involve robbery where a firearm was used, NIU would use force to open the door. He conceded that he did not know what happened inside the room when members of the NIU were there, as he was 8 metres away. There is no statement from the NIU pertaining to how they found and handcuffed the plaintiff. According to Tolbadi, this is because they simply enter the house and keep the person under control until the Investigating Officer is called, whereupon he or she would take over. It was only for few seconds that NIU members were alone in the room with the plaintiff. He would have seen if anyone assaulted the plaintiff in his presence, as he was there immediately. He conceded that he was outside the room and could not comment about the allegation that the plaintiff was assaulted inside the room during the period he was not there. He was, however, there quickly thereafter and in his presence, nothing happened. He could not comment on the allegation that the plaintiff’s pants were torn. According to him, the plaintiff walked normally when he was taken to the vehicle and he was not bleeding. He was with the plaintiff the whole time, along with Jamjam and other police officers and the plaintiff was not carried to the vehicle.

[48] It was put to him that the plaintiff was granted bail on 2 February 2009. He testified that he would not dispute that if it was written on the charge sheet. It was put to him also that from the time Mpambo’s statement was obtained, which was 11 o’clock in the morning, there was enough time to obtain a search warrant. To this he responded by saying that the statement was commissioned at 11 o’clock, but he only received it at 3 o’clock in the afternoon, according to his recollection. 14

[49] Mpambo was interviewed by Jamjam in the morning, while he was out of office, following up on other information regarding the robbery case. He got back to the office at 3 o’clock. That is when his commander, Jamjam, told him to activate people in order to arrest the suspect. Jamjam told him that the suspect is dangerous and that they must go and arrest him. They arrested the suspect on the basis of Mpambo’s statement.

[50] After the lunch adjournment, Tolbadi sought to rectify his earlier version by stating that they had received information at night that the suspect was at his house, after which they went and arrested him. During the day they were busy with other things and therefore did not have time to go and apply for a warrant of arrest. Mpambo pointed out the suspect’s address to them. This had not been mentioned during his examination in chief, and his answer to this was that he was not asked.

[51] He also stated that they did not search for firearms at the plaintiff’s house; they simply went there to arrest him. Later he rectified that statement by saying that he and Jamjam searched the plaintiff’s house for the firearm that had been used in the robbery, but found nothing. He added again by saying that the NIU also searched for an illegal firearm. He could not comment as to why it was never put to the plaintiff that his room was searched for a firearm. It was also put to him that the plaintiff never mentioned that his room was searched by the police looking for a firearm. Later on he stated that it was only he and Captain Jamjam who searched the room for a firearm.

[52] The plaintiff was not pointed out, at an identity parade, by a complainant in the robbery matter. A second set of fingerprints, belonging to one Lwandiso Njineli (‘Njineli’), were also lifted from the Jetta after the robbery, but that result only came in 2009. A warrant of arrest was obtained in respect of Njineli, albeit in 2009. Tolbadi’s response to this was that this route was not followed in respect of the plaintiff, because he was not linked with the fingerprints in respect of the vehicles used in the robbery. Mpambo was not arrested because she was questioned and a detailed statement was obtained from her.

[53] They did not have information that the plaintiff was planning to flee, but in a case like that they would act immediately after receiving information, as the suspect could run away. He did not have any reason to believe that if the plaintiff was charged for the offence, he would abscond. He informed the prosecutor that the ID parade was negative, but was not sure was if the plaintiff was in custody before or after the ID parade. He also could not recall the date upon which the matter was withdrawn. The issue of the pending case against the 15

plaintiff came after he was arrested for robbery and not before. They do not summons a suspect of an armed robbery. They never approached the plaintiff at his premises on 13 November 2008 (i.e. the day of the robbery) as stated by his girlfriend and belatedly by his sister.

[54] Jamjam testified that he is a Lieutenant Colonel in the SAPS, stationed at the Provincial Detectives office in Cape Town. He has been in the police service for 29 years. In November 2008 he was a Captain stationed at the DPCI, also known as the Hawks. He knew about the robbery that took place at Ikwezi Centre in Gugulethu on 13 November 2008. He was the staff officer in that section for serious crime investigations and the Investigating Officer was Tolbadi, who is now a Captain. Their commander during that year wa