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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 SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

                                                                                                                                                 

         CASE NO: AR 393/2019

                                                                                                          REPORTABLE

In the matter between:

 

VELAPHI NGEMA                                                                                                  Appellant                                                                                                   

                                                                                                                                                         

and

 

MINISTER OF POLICE                                                                                    Respondent

 

                                                   

ORDER

 

The appeal is dismissed with costs.

JUDGMENT

                                                                                                  Delivered on: 03 July2020

 

Ploos Van Amstel J (Olsen J concurring)

[1]        The appellant in this matter was arrested at the Durban North police station on 6 July 2015, and detained in a police cell. The charge was a contravention of s 97 (5) of the National Credit Act 34 of 2005 (the NCA). He was taken to court the following day, where the charge against him was withdrawn. He later instituted an action for damages against the Minister of Police, claiming that both the arrest and detention were unlawful. The matter went to trial before a magistrate at Durban, who upheld the defence that the arrest and detention were lawful and dismissed the claim with costs. The appellant contends in the appeal before us that this finding should be set aside and replaced with an award of damages in his favour.

 

[2]        The background of the matter is as follows. On 1 May 2015 an employee of WesBank, one Munyai, laid a charge against the appellant with the South African Police Service in Johannesburg, of contravening s 97(5)(b) of the NCA. Munyai was employed by WesBank as an investigator relating to fraud, theft and related matters. He stated in his affidavit to the police that he was investigating a matter concerning the appellant, who had purchased an Audi motor vehicle in May 2009 from McCarthy Audi in Umhlanga Rocks, with the transaction being financed by WesBank. He said it was suspected that a fraud had been committed because no payments were received on the account. He further said that the bank had contacted the appellant on his cell phone. The appellant refused to say where the vehicle was, and said he was not prepared to surrender it. The bank sent a notice in terms of section 97 of the NCA to the address provided by the appellant in his application for finance, which was 174 Redberry Park, Mount Edgecombe, Phoenix, 4068. This elicited no response from the appellant, and he made no contact with the bank. The bank obtained an order from the High Court in Pietermaritzburg for the return of the vehicle. The warrant was issued on 30 May 2014. The sheriff was not able to execute it as neither the appellant nor the vehicle could be found. Munyai contended that the appellant had defrauded WesBank as he had purchased the vehicle with the intention not to pay for it. He said the vehicle was nowhere to be found and this constituted theft.  He requested further police investigation in the matter.

 

[3]        The docket was transferred from Johannesburg to the Durban North Police Station, and handed to Detective Warrant Officer Gordon Pillay for investigation. Having perused the docket he phoned Munyai and discussed the matter with him. Munyai confirmed that they had not been able to trace either the appellant or the motor vehicle and that they regarded the motor vehicle as having been stolen.

 

[4]        It is relevant to mention that on the cover of the docket the ‘Nature and description of the offence’ was reflected as a contravention of s 97(5) (b) of the NCA. Somewhat confusingly the ‘Method used’ was reflected as theft by fraudulent means. It appeared from Munyai’s affidavit that the statement that no payments had been received on the account was not correct as the purchase price was R286 437 and the arrears R129 643. The arrears represented about twenty-six instalments, which in terms of the agreement were R4950 per month.

 

[5]        Pillay established that the appellant no longer lived at the address which he had provided to the bank. He managed to trace him to his new place of residence at [….]. He asked the appellant’s wife to tell him that he wanted to see him, and left his details. On Monday, 6 July 2015, the appellant went to the Durban North police station, where he was interviewed by Pillay.

 

[6]        Pillay testified that he explained to the appellant that WesBank had laid a charge against him, and that he needed to find the motor vehicle. He said the appellant was reluctant to disclose where it was. He discussed the matter with a senior officer and then placed the appellant under arrest. The document in the docket which recorded the explanation of his rights reflects that he had been informed that the charge against him was a contravention of s 97(5) of the NCA. On the way to the police cells Pillay said to the appellant that the bank only wanted either the motor vehicle or the settlement figure. The appellant then told him that the vehicle had been in a collision and was at Clark and Kent, panel beaters in Durban.

 

[7]        Pillay went to Clark and Kent and took the appellant with him. The motor vehicle was removed from there and taken to the Durban North police station. He detained the appellant and took him to court the following day. The charge was withdrawn there, after his father-in-law had paid the outstanding balance to WesBank.

 

[8]        In the trial court the respondent contended that the appellant was lawfully arrested pursuant to s 40(1) (b) of the Criminal Procedure Act 51 of 1977 (the CPA). This section provides that a police officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in schedule 1, other than the offence of escaping from lawful custody. Counsel for the appellant initially argued before us that a contravention of s 97(5) did not fall under schedule 1 and that the arrest was therefore unlawful. This contention overlooked the reference in schedule 1 to ‘Any offence… the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine’. In terms of s 161 of the NCA a person who is convicted of a contravention of s 97(5) may be sentenced to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment. The offence in question therefor did fall under schedule 1 of the CPA. In the course of argument before us this became common cause.

 

[9]        I should nevertheless refer briefly to Rudolph & others v Minister of Safety and Security & another 2009 (5) SA 94 (SCA), on which reliance was placed in the appellant’s heads of argument. In Rudolph the appellant had been arrested on a charge of contravening provisions of the Regulation of Gatherings Act 205 of 1993. The learned judges of appeal referred to a finding by the trial judge that the arresting officer was ‘not unreasonable in entertaining a suspicion that a crime listed in Schedule 1 …was being committed’. They then say that this apparent reliance on s 40 (1)(b) of the CPA ‘…was clearly incorrect, in that a contravention of the Gathering Act is not one of the offences listed in Schedule 1’. In terms of that Act the offence for which the appellant had been arrested could result in a fine or imprisonment for twelve months, or both such fine and imprisonment.

 

[10]      It appears, with respect, that in Rudolph the attention of the SCA was not drawn to the provision in schedule 1 to which I have referred, nor to the decision in Areff v Minister van Polisie 1977 (2) SA 900 (A), in which the history of the provision was traced.

 

[11]      In any event, the statement in Rudolph to which I have referred was obiter, in that we are not dealing with the Gatherings Act, and the SCA held that no offence had been committed in that the group had consisted of only eight persons.

 

[12]      Returning to the present matter, it was not necessary for the respondent, in seeking to justify the arrest, to show that the appellant had in fact contravened s 97(5). All he had to show was that the arresting officer reasonably suspected the appellant of having committed that offence.

 

[13]      In terms of s 97 the appellant was obliged to inform WesBank of any change concerning his residential or business address, the address of the premises where the vehicle was ordinarily kept and the name and address of any other person to whom possession of the vehicle had been transferred. The offence created in s 97 (5)(b) is committed where a consumer knowingly acts in a manner contrary to s 97 with intent to frustrate or impede a credit provider exercising rights under the Act or a credit agreement.

 

[14]      The appellant denied that he was evasive when Pillay asked him where the vehicle was. He said he told him at the outset that it was with Clark and Kent. His evidence was contradictory in this regard. In his evidence in chief he said that after he introduced himself to Pillay in his office, Pillay said he had gone to the appellant’s house ‘because of the Audi’. The appellant said he then explained to Pillay where the car was. Under cross examination he said Pillay arrested him without asking him about the whereabouts of the vehicle. I prefer Pillay’s evidence as far as this issue is concerned. If the appellant had divulged the whereabouts of the vehicle right at the outset there would have been no reason for Pillay to go and consult a senior officer. The likelihood is that he would have proceeded to Clark and Kent straightaway and taken the appellant with him. The only other matter in dispute was whether or not the appellant had notified the bank of his change of address. The appellant testified that he had, but did not produce any documentary evidence of this. It must be plain that had he notified the bank of his new address the bank and the sheriff would have had no difficulty in tracing him and the vehicle. In any event, as I have said, the issue was not whether the appellant had contravened the provisions of s 97(5), but whether Pillay had a reasonable suspicion that he had.

 

[15]      Pillay’s approach to the matter was straightforward. When he was asked in his evidence why he arrested the appellant he said according to Munyai the appellant would not disclose where the vehicle was, he had failed to notify the bank of his new residential address and he was not paying for the vehicle. In addition, when Pillay initially asked him about the whereabouts of the vehicle he would not disclose this. In those circumstances it can safely be accepted that Pillay had a reasonable suspicion that the appellant had contravened the provisions of s 97(5). It was not the appellant’s case, either at the trial or before us, that the arrest was nevertheless unlawful on the basis that Pillay had exercised his discretion to arrest the appellant improperly. The onus to prove this would have rested on the appellant, and is not an easy case to make where schedule 1 is involved. See in this regard Minister of Safety and Security v Sekhoto & another 2011 (5) SA 367 (SCA).

 

[16]      The appeal is dismissed with costs.

 

           

 

Ploos van Amstel J

 

 

 

 

 

 

Appearances:

 

For the Appellant                          :           M. Sibisi                                                        

Instructed by                                 :           Mbele, Dube & Partners

                                                      :           c/o Mkhulise Attorneys

:          Durban

                                                                                                                                                                                   

                                                                       

 

For the Respondent                      :           S.H Zondi

Instructed by                                 :           State Attorney KZN

                                                      :           Durban         

                                                                       

Date Judgment Reserved             :           19 June 2020

                                                                                                   

Date of Judgment                         :          03 July 2020

           

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