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McNaband Others v Minister of Home Affairs NO and Others (I2852/05) [2007] NAHC 50 (12 July 2007)

.RTF of original document

CASE NO.: I 2852/05
MALCOLM McNAB & OTHERS –vs– MINISTER OF HOME AFFAIRS N.O. & OTHERS
ANGULA, AJ
12/07/2007


SUMMARY


 UNLAWFUL ARREST AND DETENTION
Arrest without warrant by a peace officer. Peace officer to prove that he/she had reasonable grounds for suspicion that the person arrested had committed a Schedule 1 offence.
Held: Peace officer had proved on a balance of probabilities that he had reasonable grounds for suspicion.
CONSTITUTION
Unlawful denial or violation of fundamental rights or freedoms. Plaintiffs held in small, overcrowded and poorly-ventilated cell; filthy, cockroached and lice infested cell; caused to relieve himself in full view of other detainees.
Held: Such conditions degrading and inhuman and in violation of arrested persons' fundamental rights.
PLEADINGS
Cause of action arising from unlawful violation or denial of fundamental rights. Claim for award of monetary compensation in terms of Articles 25(3) and 25(4) of the Constitution to be specifically pleaded. Particulars of claim lacked the necessary averment to sustain the claim. No basis for the relief claimed.
Held: Plaintiffs' cause of action not specifically and properly pleaded to sustain the relief based on the provisions of Articles 25(3) and 25(4) of the Constitution. Claim based on violation of fundamental rights dismissed with costs.






CASE NO. I 2852/05
IN THE HIGH COURT OF NAMIBIA
In the matter between:
MALCOLM McNAB
First Plaintiff
GARETH RAY McNAB
Second Plaintiff
JON ALLEN
Third Plaintiff
DONOVAN PLATT
Fourth Plaintiff
ALOYSIUS YON
Fifth Plaintiff
And
THE MINISTER OF HOME AFFAIRS N.O.
First Defendant
DETECTIVE CONSTABLE SCOTT
Second Defendant
DETECTIVE SERGEANT THEUNISSEN
Third Defendant
CORAM:
ANGULA, A.J.
Heard on:
8.11.2005; 9.11.2005; 10.11.2005; 15.11.2005
Delivered on:
12.07.2007


JUDGMENT
ANGULA, A.J.:
[1]     
The plaintiffs instituted an action against the defendants for damages on the grounds that they were arrested by the first and second defendant without a warrant and detained at the Windhoek Police Station from 3rd April 2003 to about 10th April 2003. In the alternative they alleged that the arrests violated or denied their constitutional fundamental right not to be subjected to arbitrary arrest or detention; their right to personal liberty and freedom of movement; and their right to human dignity. Each plaintiff claimed an amount of N$200 000.00 plus interest at the rate of 20% per annum from date of judgment to date of payment, plus costs of suit.
[2]     
In their Plea, the defendants admitted that the plaintiffs were arrested without warrants by the second and third defendants; that the first plaintiff was arrested on 3rd April 2003 while the rest of the plaintiffs were arrested on 4th April 2003. They denied that the arrests were unlawful and pleaded that the plaintiffs were arrested in terms of section 40 (1)(b) of the Criminal Procedure Act, 1977, as amended. Section 40 (1)(b) reads as follows:
"A peace officer may without warrant arrest any person who he reasonably suspects of having committed an offence referred to in schedule 1, other than the offence of escape from lawful custody."
[3]     
The defendants pleaded that the plaintiffs were arrested on reasonable suspicion of having committed an offence referred to in Schedule 1 of the Criminal Procedure Act in that they were suspected of having sold stolen ultra phones or equipment of Siemens Namibia to Telecom Namibia. The selling of stolen goods is a Schedule 1 offence. The defendants further pleaded that the Plaintiffs appeared before a court within 48 hours, which court ordered their further detention until 10th April 2003 pending a formal bail application.
[4]     
It is common cause that the second and third defendants are police officers, and as such peace officers as contemplated by section 40 (1)(b) of the Criminal Procedure Act.
[5]     
The issue for determination before me is whether the second and third defendants reasonably suspected that the plaintiffs had committed the offence of selling stolen ultra phones or equipment of Siemens to Telecom Namibia. Ordinarily, the onus of proving or justifying the arrests rests on the defendants. It was, however, agreed between the parties that the plaintiffs would commence to lead evidence. The evidence of the plaintiffs can be summarised as follows:
Evidence on behalf of the Plaintiffs
[6]      Most of the facts were common cause. It is common cause that the first plaintiff was arrested on the evening of 3rd April 2003 by the third defendant accompanied by the second defendant and by Nico Smith, a private detective who had been instructed by Siemens to investigate the allegations of theft of the ultra phones by the defendants. Both the second and third defendants hold the rank of adjutant in the Namibian Police Force. I will refer to them by their surnames. It is common cause that Scott and Theunissen did not have a warrant of arrest when the first plaintiff was arrested and also subsequently when the rest of the plaintiffs were arrested. It is also common cause that all plaintiffs were members of Iikuti Trade and Investment Holdings CC ("Iikuti").
[7]      First plaintiff testified that he had been employed by Siemens for about ten years, from 1993 to March 2003. He was internally charged with theft concerning the ultra phones and a disciplinary inquiry was instituted against him, however the charges were withdrawn whereafter he decided to resign.
[8]      He testified that during 2002 the plaintiffs decided to register Iikuti Trade and Investment Holdings CC, a close corporation with the purpose of conducting business in Angola. The business in Angola did not materialise, so the focus was directed into Namibia. One of the businesses they focused on were to tender for Telecom Namibia business. He testified that they were awarded a tender to do repairs on Telecom Namibia devices and to provide them with thirty-five (35) units of ultra phones, which they did.
[9]      He further testified that one Erasmus who was also charged with them had previously also been employed by Siemens for about five years and that they worked together but in different departments.

[10]     Early on the evening of Friday, 3rd April 2003, Theunissen and Scott called at the house of the first plaintiff. The police officers introduced themselves and told the first plaintiff that they were investigating a case of theft of ultra phones from Siemens. They enquired about the first plaintiff's wife's membership in Iikuti. He informed them that she was not involved in Iikuti dealings but that he was the one dealing with the business affairs of Iikuti. After the police officers had interrogated him for about two hours, they asked him to accompany them to the house of the fifth plaintiff. The fifth plaintiff was not at home. The first plaintiff was taken to the police station where he was locked up. The following morning, i.e. 4th April 2003, at about 07h00 the first plaintiff was taken to Scott's office where he found the rest of the plaintiffs together with their legal representative, Mr Jan Wessels. He was advised by his lawyer with regard to his right not to make a statement. He signed a warning statement in which he chose to remain silent. During the weekend, i.e. Saturday and Sunday, they were interrogated by Scott and Theunissen. On Monday, 7th April 2003, they were taken to the Windhoek Magistrates Court. Their case was postponed to another date for further investigation and pending formal bail application. He was released on bail on Friday, 11th April 2003. The charges against them were later withdrawn on 28th May 2003. Subsequent thereto they were served with summons whereby they were charged with the same offence, however those charges were again withdrawn on 27th January 2004.
[11]     During cross-examination the first plaintiff confirmed that his wife was a registered member of Iikuti, however he dealt with all the activities relating to the business of Iikuti. For instance, he had signing power together with other members of Iikuti with regard to the business' cheques. The second plaintiff, Gareth McNab, was his brother who acted as managing director and managed the daily activities of Iikuti. The third and fourth plaintiffs from time to time dealt with quotations and tenders. Another member of Iikuti, one Tuliki, was not that involved except during the time when they were exploring business in Angola. The business office of Iikuti was situated at the house of the fifth plaintiff in Pionierspark, Windhoek.
[12]     First plaintiff confirmed that during December 2002 he submitted two invoices to Telecom Namibia in respect of thirty-five ultra phones supplied by Iikuti to Telecom Namibia. He further confirmed that Iikuti carried out repairs of ultra phones for Telecom Namibia during or about December 2002 and in respect of which VAT invoices were submitted to Telecom Namibia in January 2003. He testified that he is a qualified telecommunications technician and that he received his training at Siemens in Germany; that his brother, Ray McNab, is a mechanical engineer; that the fourth plaintiff, Donovan Platt, was working at the Polytechnic of Namibia as a lecturer in information and communication; and that the fifth plaintiff is a retired trade unionist.
[13]     According to him, the seven ultra phones were repaired by Erasmus who was at the time employed by Siemens as a technician; however Erasmus worked as a consultant to Iikuti in which capacity he repaired the ultra phones for and on behalf of Iikuti for supplying to Telecom Namibia. He explained that the way they operated was that Telecom Namibia would inform them that it had broken or faulty ultra phones and the plaintiffs would then collect the phones and take them to Erasmus for repair. At times Erasmus also picked up ultra phones at Telecom Namibia for repair. Iikuti would then pay Erasmus for his work.
[14]     He confirmed that the police warning statement was read to him, which contents he confirmed; that he was informed by the police that they were investigating a case of theft of ultra phones from the Siemens stores; that he elected not to make a statement to the police. The warning statement was taken on 4th April 2003. He was questioned about the origin of thirty-five ultra phones they had sold to Telecom Namibia, whereby he explained that the ultra phones were originally supplied by Siemens to Telecom Namibia; Telecom Namibia sent them to Siemens for repair but they were considered by Siemens to be beyond repair; they were therefore bound to be thrown away. He testified that Erasmus told them that he was repairing those ultra phones in his free time. They (Iikuti) paid Erasmus N$1000 per unit for the repair. Iikuti then sold the repaired units to Telecom Namibia.

 [15]     It was put to him that according to Siemens' stock there were ninety-seven ultra phones and that the thirty-five units that were sold to Telecom Namibia were, according to their serial numbers, from those ninety-seven new ultra phones; and that this information was passed on to the police officers who arrested them. He confirmed that although Iikuti had received a quotation from the company in the USA which had supplied ultra phones to Siemens, Iikuti never went as far as buying ultra phones from that company in the USA. He confirmed that the police officers had informed him that evening that they were going to arrest him for alleged theft of the ultra phones. He further confirmed that at the time he made the deal with Telecom Namibia regarding the ultra phones he and Erasmus were still employed by Siemens.

[16]     The first plaintiff confirmed that he knew that Mr Langmaak of Siemens had laid a complaint with the police regarding the stolen ultra phones; that he knew that Langmaak had made a statement on 2nd April 2003 and that one Rodrigues, also employed by Siemens, had made a statement to the police on 28th March 2003 regarding the stolen ultra phones; that a lady by the name of Sowden had also made a statement on 27th March 2003 regarding the stolen ultra phones; and finally, that Erasmus had made a statement on the afternoon of 3rd April 2003 at about 19h30. He further confirmed that the contents of the statements implicated the members of Iikuti as having stolen ultra phones from Siemens. He further confirmed that when the police officers arrived at his house that evening they questioned him about the ultra phones. It was put to him that Siemens was the sole supplier of ultra phones, to which he responded that that was not correct since their close corporation was also in a position to source ultra phones from somewhere else. He did not specify where.
[17]     The second plaintiff, Gareth Ray McNab, testified that he is an engineer with a B.Sc Engineering Systems qualification; that he is a civil contractor and is the brother of the first plaintiff; that he was also a member of Iikuti. On 3rd April 2003 he attended a tender meeting held at Telecom Namibia where private detective Smith was introduced as a consultant to Telecom Namibia. However, it transpired later that Smith had been approached by Siemens to investigate the theft of ultra phones. Later that evening the members of Iikuti gathered at fifth plaintiff's house for a meeting to review the events of the day, in particular their meeting at Telecom. During the meeting Erasmus' wife telephoned and informed the fifth plaintiff that Erasmus was being questioned by Scott and Smith at the Siemens offices. Later on in the evening, second plaintiff received information that Scott was looking for him.
[18]     Second plaintiff went on to describe the condition of the cells in which they were held, that they were roaming with cockroaches; that he felt humiliated and that he could not sleep. He confirmed that Iikuti repaired ultra phones for Telecom and that it provided thirty-five units of ultra phones to Telecom Namibia. He testified that on a certain date he had collected ultra phones from Telecom Namibia because Erasmus could not do it himself.
[19]     The second plaintiff was cross-examined about the warning statement taken by Scott regarding the investigation of the theft of ultra phones from Siemens. He confirmed the contents of the statement. He confirmed further that he had chosen not to make a statement; that he learned later that Langmaak had laid a charge of theft of ultra phones of Siemens. Regarding the thirty-five units supplied to Telecom Namibia, he testified that his understanding was that Telecom Namibia needed to be supplied with ultra phones. However, Siemens could not supply the ultra phones so Erasmus offered to Iikuti to rebuild or repair the units which were written off by Telecom Namibia so that Iikuti could supply the ultra phones to Telecom Namibia. According to his understanding it was Erasmus who supplied the spare parts and also did the repairs in respect of ultra phones. The contents of the statements of Langmaak and Rodrigues were put to him. It was put to him that the ultra phones which were traced at Keetmanshoop and Gobabis were part of the ninety-seven ultra phones which went missing from the Siemens stores. According to him Iikuti had received a letter from a company by the name of TXR in the USA that they would be able to supply ultra phone spare parts to Iikuti. It was put to him that the police were in possession of a statement by Sowden of Telecom Namibia, taken on 27th March 2003, dealing with five ultra phones found at Telecom Namibia stores at Keetmanshoop, the serial numbers of which corresponded with the serial numbers of the thirty-five units. He responded that he had no knowledge of that. It was further put to him that the statement of Erasmus which was taken on 3rd April 2003 at around 17h00 implicated all members of Iikuti as having been involved in the theft of ultra phones from Siemens. Again, he did not dispute that statement. He confirmed Erasmus' statement that the VAT invoice in respect of the thirty-five units delivered to Telecom was issued under the name of Iikuti. It was further put to him that at the time he was arrested the police were in possession of the report of the investigation carried out by Nico Smith. He confirmed that, however, he went on to say that in his view the police did not correctly investigate the allegations. He confirmed that on the date he was arrested he voluntarily went to the police station and surrendered himself. The report compiled by Nico Smith was then handed in evidence as an exhibit.
[20]     The third plaintiff, Jon Allen, testified that he is the marketing manager of New Start Voluntary Counselling and Testing Centre. He confirmed that during the evening of 3rd April 2003 while attending a meeting, they received a phone call from Erasmus' wife who informed him that Erasmus was being interrogated by Nico Smith and Scott at the Siemens offices. He testified further that the following morning they went to the office of Mr Wessels, their lawyer, and from his office they walked to the Windhoek police station. At the police station Scott then explained to them why they were being sought the previous night. Prior to going to the police station they had been advised by their lawyer not to make statements. He testified that in the course of the day he was interrogated by Scott and Theunissen on separate occasions; that he signed the warning statement late that afternoon. At around 18h00 they were taken to the holding cells where they were locked up for the weekend. He described in detail the appalling conditions in the holding cells. He confirmed that they were released on bail on 11th April 2003.
[21]     During cross-examination he confirmed that the repairs of the ultra phones were done by Erasmus as a consultant for Iikuti. He confirmed that he knew about the thirty-five ultra phones supplied by Iikuti to Telecom. He identified the VAT invoices submitted by Iikuti to Telecom. As to the origin of the units, he testified that Erasmus was essentially the middle man who supplied the units to Telecom. He testified that his understanding was that the units were made up from spare parts which had been declared obsolete or unusable by Telecom; furthermore that according to his understanding the spare parts never came from Siemens; they were in the possession of Erasmus in his private workshop at home. His understanding was further that Erasmus worked on or repaired the ultra phones during his spare time outside his employer's setup. According to him, that arrangement was acceptable to him. He testified that he had concerns or questions about the legitimacy of the proposal by Erasmus due to the fact that at that time Siemens was the sole supplier of ultra phones and the sole service provider for repairs of the ultra phones. However, based on the assurance from Erasmus and the report by Malcolm McNab after his inspection of Erasmus' workshop at his house, and which inspection confirmed that Erasmus was doing the repair work after hours and which further confirmed that Erasmus possessed the expertise, they accepted the proposal or the arrangement.
[22]     He confirmed further that after his release from detention and during the preparation of this trial, he became aware that Scott and Theunissen were in possession of statements which implicated them in the theft of Siemens ultra phones. Commenting on the statement by Langmaak that Siemens was the sole supplier of ultra phones, he conceded that that might have been the position up to the point of the tender issued by Telecom; however, according to him after or during the tender Siemens was no longer the sole provider because Iikuti became a supplier to Telecom through Erasmus who was rebuilding and repairing the units for Iikuti.
[23]     Erasmus' statement was put to the third plaintiff in which Erasmus had stated that the ultra phones came from Siemens; that he removed some casings and components to build the thirty-five units which were supplied to Telecom Namibia; that all the plaintiffs knew that he got the thirty-five units from Siemens and that they were satisfied with the arrangements. He responded that that was not the case because they were assured by Erasmus that the units were coming from his workshop.
[24]     The fourth plaintiff, Donovan Mervin Platt, testified that he is a lecturer at the Polytechnic of Namibia. He basically confirmed what had been testified by the other plaintiffs; the receipt of the news about the arrest of Erasmus and Malcolm McNab; their reporting to the police station on Friday morning; their interrogation by the police officers; that he did not give a statement; their being arrested and locked up; the conditions in the cells; and ultimately being granted bail. Regarding their arrest, he was of the view that, having regard to the information in the police officers' possession, the police officers did not give much thought or proper attention to the information; and that had they done so they would have realised, or formed a doubt, that the plaintiffs were not involved in the alleged theft of ultra phones.
[25]     During cross-examination he was questioned about the thirty-five ultra phones delivered by Iikuti to Telecom Namibia. He testified that his understanding was that they were rebuilt by Erasmus from spare parts which were the property of Erasmus, however, he did not know how the units were put together by Erasmus. According to him, it had never been stated that the spare parts were obtained from Siemens. His understanding of computer matters was that it is possible to source electronic spare parts from anywhere in Windhoek and build something new out of such parts. His thinking was that the same would apply to spare parts for ultra phones. According to him, even if Siemens might have been the sole supplier of ultra phones there was a company in the United States of America (TXR) which also supplied the ultra phones; however, Iikuti did not proceed to order ultra phones from that company since the tender by Telecom Namibia to supply the said phones was called off because of the investigation which gave rise to their arrest.
[26]     The fifth plaintiff, Aloysius Frederick Yon, testified that he is a retired trade unionist, now a pensioner. He likewise confirmed the events leading to their arrest as testified by his co-plaintiffs. He testified that he did not give a statement but only a warning statement; that he asked Scott why they were being arrested whereupon Scott informed him that he was being suspected of theft of ultra phones; he stated that during the meeting called by Slenter of Telecom where Nico Smith was present he had realised that Iikuti's tender was posing a threat to Siemens and that Siemens was employing underhand tactics to eliminate Iikuti as a competitor; that that was the reason Siemens caused them to be arrested and detained so that Siemens would get the tender. He described the appalling conditions in the detention cells; and their ultimate release on bail.

[27]     He testified that Iikuti obtained the ultra phones from Erasmus and that the latter told them that he had built them from obsolete boxes that were discarded by Telecom. According to him Erasmus had told them that he supplied the thirty-five ultra phones to Telecom, invoiced Telecom and thereafter received a cheque from Telecom, which cheque was made payable to Iikuti; that they paid Erasmus from that money. He conceded that the information which was in possession of the police officers Erasmus implicated him and other members of Iikuti of having stolen the ultra phones.
Evidence on behalf of the Defendants
[28]     The first witness for the defendants was Gunther Langmaak, managing director for Siemens, Namibia. He testified that he became suspicious that there was theft of ultra phone units and unauthorised repairs being done, as a result of which he enlisted the services of Nico Smith. The investigation lasted for about three weeks which established that criminal activities were being perpetrated, whereafter Nico Smith contacted the police on his behalf. The investigations revealed that Iikuti was doing repairs on the ultra phone units. According to him nobody could do the repairs on his own because to repair the units required complicated repairing equipment; that through investigation they managed to establish that a number of units were stolen from Siemens and delivered to Telecom; that they verified the stolen units with reference to their serial numbers. With regard to the thirty-five units, Langmaak went on to explain that apart from the test equipment which they got from the United States of America they had also received a number of spare parts referred to as 'turn-up spares' that were part of the contract. In respect of those spare parts they had a list of equipment detailing exactly the serial number of each unit. Using the serial number, they were able to identify the units which were found at Telecom's offices at Gobabis, Keetmanshoop and Windhoek. In turn, those units could be traced back, with reference to serial numbers, to the stock in the Siemens stores. It was meant to be backup spare parts. With the assistance of Telecom Namibia they eventually managed to establish that before Iikuti delivered the ultra phone units to Telecom Namibia there had been no stock of ultra phones at Telecom Namibia. According to him, the units which were supplied by Iikuti were from Siemens which were ultimately deployed by Telecom Namibia to their offices in Keetmanshoop, Gobabis and Windhoek. The serial numbers of the thirty-five units were part of the batch of the ninety-seven new units. He disputed the plaintiffs' evidence that the units were assembled from redundant units. In this respect he explained that the only instance when a unit is scrapped is for instance if the whole PC board is for instance struck by lightning; once that happened, no one else can use it; furthermore, if units are rebuilt it must be reprogrammed with special equipment to accept the serial number which is used by Telecom Namibia to activate the units on Telecom Namibia's network. He confirmed that the units that were repaired at the Siemens workshop were the property of Telecom Namibia. However, the ninety-seven units were in a separate store at Siemens and they were left as backup. Furthermore, that the thirty-five units supplied by Iikuti to Telecom Namibia were part of the ninety-seven back-up units; they were not intended to be replaced with those units from Telecom Namibia which needed repair.
[29]     The next witness for the defence was Adjutant Clifford Theunissen. He testified that he was in charge of the investigation regarding the theft of ultra phones from Siemens. He was instructed by his commanding officer to make contact with private investigator Nico Smith. A formal charge had been laid through the statement by Rodrigues of Siemens. Later the same month he met Smith who was with Langmaak. Smith gave him a typed statement by Langmaak and he confirmed its contents with Langmaak. Due to the fact that he was busy with a court case he assigned his junior, Scott, to assist him with the preliminary investigation. On the evening of 3rd April 2003 he joined Scott and Smith who were at that time interrogating Erasmus. By that time Erasmus had already made two statements.
[30]     Theunissen confirmed that he commissioned the first statement by Erasmus on the evening of 3rd April 2003. The second statement by Erasmus was confirmed the following morning at the police station. He stated that late that night of 3rd April 2003 he was in possession of the statements by Erasmus, Langmaak, Rodrigues and Sowden; that it was on the basis of information contained in those statements that he decided to arrest Erasmus and Malcolm McNab that night. He arrested Malcolm McNab because although he was not a shareholder, Malcolm had told him that his wife was not involved in Iikuti's business dealings. He testified that the following morning when the other members of Iikuti reported themselves at the police station he informed them that he had been looking for them the previous night because their close corporation, Iikuti, had sold ultra phones to Telecom Namibia which Siemens claimed were stolen from their stock. He took their warning statements in which they chose not to make a statement.
[31]     During cross-examination by Mr Brandt for the plaintiffs, Theunissen confirmed that the docket was opened on 3rd April 2003 although the statements had been taken by Smith a few days before that date. He had already received the statements of Rodrigues and Sowden from Smith before 3rd April 2003. He received the statement by Langmaak on the evening of 2nd April 2003 which he commissioned at the offices of Nico Smith. He confirmed that he took the warning statement of Erasmus on that Friday evening after Erasmus had been arrested. He further stated that after he had received Langmaak's statement he went to the Siemens offices to collect further supporting documents from Rodrigues. It was then that Rodrigues explained to him how the serial numbers of the thirty-five units recovered were utilised to identify the units.
[32]     Adjutant Scott testified that he was requested by Theunissen to assist him with the investigation of theft of ultra phones from Siemens. He stated that he was present when Erasmus made his first statement; that at first Erasmus denied any knowledge about the phones; that later Erasmus broke down and started crying, whereupon he requested Scott to excuse them so that he could speak alone to Smith because the two had been together in the police force and that Erasmus felt comfortable to talk to Smith alone. He testified that when Theunissen joined them that evening he briefed him about the status of the investigation; that they went to McNab's house and started questioning McNab's wife about the stolen phones; that her explanation was that although her name appeared as a member she did not deal with the affairs of Iikuti but that her husband did; that they interrogated McNab for about two hours. He confirmed that after they left McNab's house they proceeded to Yon's house but there was nobody at Yon's house. From Yon's house they went to Gareth McNab's house; the latter was not at home either. From Gareth's house they went to the police station where Erasmus and McNab were arrested by Theunissen. He testified that Erasmus and Malcolm McNab were arrested earlier that evening because there was a prima facie case that linked the plaintiffs to the theft of ultra phones based on the information contained in the statements. He explained, with respect to prima facie, that according to the information in the statements the ultra phones which had disappeared from the Siemens stores were later found to have been delivered to Telecom Namibia by Iikuti, which units were bearing serial numbers of the units which were supposed to be in the Siemens stores. He confirmed that the following morning they interrogated the plaintiffs and took warning statements. According to him, Erasmus' statement confirmed the suspicion. It was on that basis that Erasmus was arrested. According to him the first plaintiff also made certain admissions during questioning which confirmed their suspicion. As far as Erasmus was concerned he would have been arrested with or without his statement.

 [33]     After Scott's evidence Mr Swanepoel closed the case for the defence.

[34]     The legal position is very clear: that the defendants bear the onus to establish on a balance of probabilities that they had reasonable grounds for their suspicion that the plaintiffs had committed the offence of theft, which is a Schedule 1 offence. The test for the existence or otherwise of a reasonable ground for suspicion is determined by an objective test.
"As has been pointed out above, the onus was on the appellant to establish on a balance of probability that he had reasonable grounds for his suspicion. In this regard, it may be useful to refer to the remarks of JONES, A.J.P., in Rosseau v. Boshoff, 1945 C.P.D. 135, where the learned Judge said at p. 137:
"I think I may further state that when one comes to consider whether he had reasonable grounds one must bear in mind that, in exercising these powers, he must act as an ordinary honest man would act, and not merely act on wild suspicions, but on suspicions which have a reasonable basis."

The test is an objective one, and as was said in R. v. van Heerden 1958 (3) S.A. 150 (T) at p. 152E:
"the grounds of suspicion must be those which would induce a reasonable man to have the suspicion."