After my bank card had bounced a number of occasions, I went to an ATM to withdraw cash to pay my R1,600 restaurant invoice on the V&A Waterfront. The following second, three policemen pounced on me, grabbed my arms and cuffed my arms as tightly as they might. Two hours later, I used to be transported to the Desk Bay Harbour Police Station, the place I used to be formally charged with theft. CAS 18/2/204 was opened towards me.
It’s pay time in a restaurant. The waiter brings the invoice. You provide your bank card within the information that there’s sufficient cash in your account and that you’ve got used your card that very same day to make different purchases.
The financial institution declines your card, for no matter cause. There is perhaps a glitch at your monetary establishment, you might need forgotten your pin or no matter else. It’s embarrassing, and you need to negotiate with the restaurant supervisor or proprietor how and when to pay the invoice.
I’ve a restaurant and it occurs occasionally. The diner would usually depart his driver’s licence behind and go to an ATM. Or I take his particulars — bank card quantity, cellphone quantity and ID quantity — and provides him my financial institution particulars to do an digital switch. Solely in instances the place a diner in the end fails to pay may one contemplate a prison cost — one thing that has by no means been essential.
Have you ever ever thought that your card being declined may culminate in you committing a prison offence? That you’re responsible of stealing and that this may land you in a stinking and soiled holding cell the place you might need to sit down for 2 days earlier than being trucked to court docket to seem on a cost of theft?
Unimaginable? No, it’s not. Not in our damaged and perverted prison justice system, the place miscreants in blue roam the streets.
On Saturday evening on the Cape City Waterfront, my bank card was declined at an up-market restaurant. After I went seeking an ATM to withdraw cash, three policemen pounced on me, cuffed me, and dragged me to a backlit workplace someplace within the innards of the Waterfront. They accused me of getting stolen R1,600 from the waiter.
Two hours later and in excruciating ache from a thumb that felt as if it had been damaged and cuffs consuming into my wrists, I used to be transported to the Desk Bay Harbour Police Station, the place I used to be charged with theft, learn my rights and thrown right into a holding cell.
I used to be additionally given a receipt of the belongings that the arresting officers discovered on me. There was no point out of R1,000 I had in my pocket, which they’d taken from me within the backlit room.
It additionally reveals that I didn’t have both my cellphone or automobile keys with me after I went seeking an ATM. I had left them behind within the restaurant.
Policemen informed me that I might be taken to court docket someday on Monday, the place I might be formally charged with theft. They refused to hearken to any rationalization and didn’t take a warning assertion from me.
A mosquito-infested holding cell with three cement bunk beds, a damaged bathe, a grimy and stinking rest room and a wash basin was to turn out to be my residence for the subsequent two days.
It was some of the hellish experiences of my life — one thing that some law-abiding residents are uncovered to each day.
I’m writing this text to not lament my very own predicament — which is small in contrast with others — however for example how straightforward it’s to fall prey to rogue parts within the SAPS.
I’ve all the time had monumental empathy and understanding for the various good cops on the market who attempt to maintain regulation and order in a crime-infested and violent nation. However there appears to be a rising variety of rogue and ruthless cops who goal law-abiding residents to extract bribes, enrich themselves, meet their arrest targets or just fulfill their sociopathic tendencies.
I’m privileged and have a public persona, which others would not have. They’re susceptible and have little recourse.
Constitutional regulation professional Professor Pierre de Vos says: “The issue of wrongful arrest by the police is widespread. In truth, endemic. Nevertheless it impacts disproportionately on individuals who would not have social and financial energy or standing. The richer and the whiter you’re, the much less possible that you can be wrongfully arrested.”
On 19 November 2019, police commissioner Basic Khehla John Sitole issued a round with the headline “Directions Relating To Arrest And Detention Of Suspects” to every policeman and girl in South Africa.
He mentioned: “Arrest is rarely an obligation, regardless of the offence. The choice to arrest should be rational, taking all related circumstances into consideration.”
Sitole mentioned that the arrest and detention of a suspect “constitutes some of the drastic infringements of the rights of a person and a member ought to due to this fact regard it as a final resort”.
He chastised commanders which have issued orders for the illegal arrest and detention of suspects and mentioned that that is costing the service tens of millions of rands.
Sitole mentioned an individual ought to solely be arrested and detained if there’s proof that the accused may disturb the security of the general public or an individual, if let loose, will try and evade his or her trial, will try and affect or intimidate witnesses, or will disturb the general public order.
The commissioner mentioned that arrest and detention is a “critical and humiliating infringement” upon the liberty of motion of the accused and due to this fact, the place potential, she or he ought to be launched on written warning, written discover, or bail.
The SAPS has, over the previous 5 years, paid an estimated R1.5-billion in civil claims for wrongful arrest. In 2019 alone, the cops coughed up R535-million for wrongful arrest.
Though there are on common four,500 disciplinary instances reported yearly towards policemen, solely about 120 law enforcement officials are discovered responsible and pay a positive.
The Unbiased Police Investigative Directorate (IPID), which is answerable for investigating complaints of alleged criminality and misconduct towards police members, has closed 95% of instances with out taking any motion. Solely four% of instances have resulted in disciplinary motion with 2% leading to sanction.
In 2017, Parliament heard that there have been claims totalling R14.6-billion towards the police. Most had been for illegal arrest, detention and shootings. This determine has risen to greater than R20-billion.
Criminologist Professor Lukas Muntingh says police “grossly misuse their energy”. The issue is twofold: SAPS managers usually are not implementing the interior disciplinary code and the NPA “very not often prosecutes police officers, particularly for human rights violations”.
Statistics present that there was a decline in policemen which have been subjected to disciplinary motion, and in response to Muntingh this “doesn’t bode effectively for normal belief within the state and particularly within the police”.
At 6pm on Saturday, 6 February 2021, the waiter introduced me my invoice of R1,623. The financial institution declined my bank card twice. I used to be dumbfounded as a result of I had used the cardboard earlier that day at Unique Books and at Choose n Pay. I had additionally withdrawn R1,000 at an ATM, which I had in my pocket.
I went to the entrance desk the place I spoke to the supervisor. He additionally tried to place the cardboard by means of, nevertheless it was declined.
I took the R1,000 out of my pocket and provided it to the supervisor and waiter as partial cost till I may discover the stability. The supervisor needed the complete quantity. I put the cash again in my pocket and mentioned to him: I’m going to seek out an ATM to withdraw the stability.
I left my cellphone, keys, and a guide on the desk the place I sat. I had no intention to abscond.
The Waterfront — and I’m positive the restaurant as effectively — is extensively lined by CCTV cameras that may confirm my account.
The waiter accompanied me on my technique to an ATM, following a number of steps behind me. The following second, three policemen pounced on me, grabbed my arms and cuffed my arms tightly.
Somebody within the restaurant will need to have made a cellphone name to safety or police telling them that I used to be absconding, regardless that I had eaten there a number of occasions earlier than.
I’m not positive how I reacted as a result of I used to be shocked and dazed. Two policemen every took an arm and with the waiter in tow, hauled me to an workplace someplace within the Waterfront. I used to be informed to face towards a wall.
“Why are you doing this?” I demanded to know.
“We’re charging you with theft,” one of many cops responded.
“You stole R1,600.”
“From this man,” mentioned the cop and pointed to the waiter. “You stole R1,600 from him. And we’re charging you.”
“I didn’t steal something from this man,” I responded. “I used to be on my technique to an ATM to get cash to pay the restaurant.”
The policemen eliminated every thing I had in my pockets and in my pockets, together with the R1,000 in money.
Two hours later, I used to be transported to the Desk Bay Harbour Police Station, the place I used to be formally charged with theft of R1,600. CAS 18/2/204 was opened towards me.
I signed varied types, together with a “Discover of Rights in Phrases of the Structure” which states that I’ve a proper to medical consideration. I informed 4 policemen that I think that my thumb was damaged throughout the cuffing of my arms and that I wanted medical consideration. They merely shrugged their shoulders.
I acquired a “Prisoner’s Property Receipt” of every thing I had in my possession after I was arrested. It talked about a brown pockets with the bank card, an Eskom card, a Choose n Pay card and a Gautrain card.
There was no point out of the R1,000 in money I had in my pocket. The arresting officers will need to have stolen it, however I didn’t say something then as a result of I used to be scared.
Most significantly, the receipt reveals that I didn’t have my cellphone or automobile
keys with me. I had left them behind within the restaurant. You don’t make a
“getaway” with out your keys and cellphone. (The individual I used to be with on the desk took my gadgets along with her after I used to be arrested.)
One of many policemen talked about that I had far an excessive amount of to drink within the restaurant.
“Is crime?” I requested him. “And is that why you could have arrested me?”
He laughed and mentioned: “No, you had been arrested since you stole cash.”
All through this ordeal, I used to be not requested for a proof of what occurred or for a witness assertion. I informed a number of policemen that I needed to make a press release. Nobody was .
After I had untied my shoelaces I used to be proven to a dimly lit holding cell. There have been three cement bunk beds, a damaged bathe, a faucet and a grimy rest room within the nook one didn’t dare to make use of. I used to be given a blanket. No cleaning soap (within the time of Covid). No rest room paper. Nothing.
I had misplaced my masks throughout my detention and was solely given one the subsequent morning.
The cell was filthy and dilapidated and a far cry from my constitutional proper to be detained “below circumstances consonant with human dignity”.
I didn’t sleep. The sound of a holding cell will ceaselessly be etched in my thoughts. It’s a cacophony of the high-pitched voices of policemen, doorways clanging and the rattle of chains as extra suspects are introduced in.
De Vos says that theft is outlined because the illegal appropriation of property belonging to a different with intent to deprive the proprietor completely of the property.
“On the details offered, this isn’t theft. (There’s) No appropriation of property and no intention to deprive the proprietor of the property.”
He says the details level extra in direction of fraud. “However fraud is the illegal and intentional making of a misrepresentation that causes precise or potential prejudice to a different. As soon as once more, it will be moderately troublesome to show intentional misrepresentation — that you just had been going to pay without having any intention to take action.”
He says the police ought to on the very least have established whether or not there have been affordable grounds to consider that I dedicated an offence earlier than arresting me.
In 2018 in De Klerk v Minister of Police, the Supreme Court docket of Attraction confirmed that the arresting officer has an obligation to determine the accessible details and to not rely solely on the say-so of the complainant.
De Vos says there are various causes the police act in a heavy-handed manner and arrest people when there aren’t any grounds to take action and/or use extreme power after they make an arrest.
One is that the SAPS measure “success” in response to the variety of arrests they make. Generally there are casual quotas, so law enforcement officials exit to make arrests to satisfy their targets.
There’s additionally an absence of coaching and authoritarian police tradition. Generally arrests are made to elicit a bribe or for another corrupt cause.
Says De Vos: “There’s additionally an argument that law enforcement officials face monumental challenges to do their job, usually are not extremely revered by the general public and stay in worry from harmful criminals, and thus take out their frustrations on abnormal people who find themselves simply scared to regain a semblance of respect and management.”
On Sunday morning, I requested a policeman who caught his face into my cell what was going to occur. He mentioned that the detective would come within the subsequent day (Monday) to finalise the docket and that I might be taken to the Cape City Magistrates’ Court docket for my first look. He jogged my memory that the cops had 48 hours to deliver me earlier than court docket.
The identical policeman was again some time later and needed to know: “Are you that author?” I mentioned I used to be.
Issues modified. My spouse was allowed a go to of 5 minutes, which a policeman mentioned was very uncommon.
An hour or so later, I used to be ordered out of my cell and brought to an workplace. A detective sergeant courteously introduced that I might be launched on a warning. After signing extra types, I insisted on making a press release, which I did and was placed on the docket.
I then had perception into the assertion made by the waiter after my arrest. He principally confirmed what I mentioned: that I tried to pay with my bank card, that it was declined and that I needed to go to an ATM to get cash.
He confirmed that I had provided to pay R1,000 in money, however that the supervisor refused to just accept it and that I had put it again in my pocket. I rotated and walked in direction of an ATM.
By his account, there was R1,000 in my pocket after I left the restaurant. After my arrest and in response to the police receipt of my belongings, there was no R1,000. That may effectively be why I used to be arrested and charged: the cash I had on me.
I used to be launched at noon on Sunday.
I reported to the Cape City Magistrates’ Court docket on Monday. It was chaos. On account of Covid, suspects should wait outdoors and are known as when their instances come up. It was a Covid lure with some not sporting any masks and others with their masks hanging below their noses.
I noticed my detective sergeant getting into the constructing. She informed me I have to wait. I mentioned to her that my restaurant invoice had within the meantime been paid. She mentioned she is going to make a remark of it. She by no means did.
By noon, with the solar baking down on the troop of suspects awaiting their court docket flip, I approached entry management. They allowed me in.
At 2.30 that afternoon, I appeared earlier than a Justice of the Peace in Court docket 15. The prosecutor informed the Justice of the Peace that this case was not appropriate for a prison trial, however for mediation.
It is a idea in our regulation to resolve disputes speedily and out of court docket. The mediator should discover choices of resolving the problem that may expedite the trial or resolve the case. Profitable mediation additionally leads to the withdrawal of the fees.
In my case, the mediation revolves across the settlement of the invoice — which was already finished on Sunday morning.
I spoke to the prosecutor afterwards and he mentioned he was not conscious that my restaurant invoice had already been paid. I informed him that I failed to grasp what else there was to mediate between me and the complainant. I didn’t steal R1,600 from him and he suffered no loss. There was no theft.
I informed him that my arrest had prevented me from paying or settling my restaurant invoice. He informed me to cease performing as if I’m the sufferer.
In the meanwhile, I’m an accused in a prison case till mediation on 30 March 2021.
I’ll carry the trauma of Saturday evening for a while. It has confirmed what most South Africans know: be very, very frightened of the women and men in blue. DM
Replace: On Friday Pauw was as a consequence of lay a cost on the police station after which submit his affidavit to the IPID for illegal arrest, assault and theft.
The V&A Waterfront’s Senior Operations Supervisor, Deon Sloane, declined remark. “The matter is being handled by SAPS at Desk Bay Police Station (Copied in on e-mail) because it’s sub judice and we might request all additional requests to be directed to them.
When requested if Day by day Maverick may view the CCTV footage, he mentioned the matter was sub judice.
SAPS Western Cape spokesperson Federick van Wyk responded: “The accused was arrested for theft whereby he allegedly couldn’t pay for his invoice on the restaurant. A warning assertion was obtained from him and he was launched on a warning to seem in court docket. The case has been postponed to 2021-03-30.”
The restaurant proprietor declined to remark. The title of the restaurant has not been disclosed as Pauw’s grievance is towards the police, not the restaurant.
Editor’s be aware: Day by day Maverick made extra impartial enquiries so as to add different voices to Pauw’s story. No person was prepared to go on file on the time of publication.