Investigative journalist Jacques Pauw had the Cape Town restaurant industry abuzz about an opinion piece he wrote in Daily Maverick last week about his arrest by the police in the Waterfront in 6 February 2021, after his credit card payment for the balance of his R1600 restaurant Hill was declined. The article was shared in the Cape Town Restaurants: The Good, Bad, and Nastyyyy Facebook Group, and attracted more than 400 comments, almost all expressing outrage. I and others called for the restaurant and its manager to be named and shamed! Restaurant lovers were speculating as to which restaurant it could have been.
Today Pauw Tweeted a correction and apology to everyone involved, blaming himself for the events.
Pauw’s 360 degree turnaround story of the events sounds suspicious, as if he struck a deal with the Waterfront and the police. As a minimum his reputation as a journalist is severely affected.
‘After my credit card had bounced a few times, I went to an ATM to withdraw money to pay my R1,600 restaurant bill at the V&A Waterfront. The next moment, three policemen pounced on me, grabbed my arms and cuffed my hands as tightly as they could. Two hours later, I was transported to the Table Bay Harbour Police Station, where I was formally charged with theft. CAS 18/2/204 was opened against me’. These were the first words in Pauw’s original article in Daily Maverick.
‘A note from Daily Maverick Ed: Last week Friday Daily Maverick published an opinion column by investigative journalist and author Jacques Pauw after he alerted us to his arrest at the V&A Waterfront in Cape Town. We did so after contacting both the unnamed restaurant involved as well as the police and the V&A Waterfront offering them an opportunity to comment. The restaurant declined to speak to Daily Maverick on the record. Requests for CCTV footage were also declined. We published the comments we did obtain from SAPS and Waterfront as footnotes. We took these steps because Pauw’s column made serious allegations around his arrest, including that the police had stolen cash he had on him and that the restaurant had refused any alternative efforts to settle the bill. We informed the restaurant that we would be publishing Pauw’s column and it was in their interests to give their version of events.
Prior to publication, Daily Maverick interrogated some of the elements in Pauw’s column with him and edited it accordingly where appropriate. Although Pauw admitted he had been drinking, he assured Daily Maverick his version was correct and he pointed to the waiter’s statement to police as corroboration. Once published, we continued our investigation and obtained the CCTV footage.
Pauw issued a statement on Tuesday after meeting with the restaurant and V&A Waterfront management on Monday.
We are publishing Pauw’s latest version of events and apology as a matter of urgency, to put the record straight. We undertake to continue our investigation and update readers if there are any further developments or findings that are at variance with Pauw’s statement.
Pauw’s statement follows:
I wish to correct the mistakes I made in a Daily Maverick column, “I was stunned and dazed when pounced on by police, arrested, jailed and charged with theft”, that appeared last Friday.
I also need to apologise for my actions when I was arrested at the V&A Waterfront on 6 February 2021. I was detained overnight and released at noon the following day on a warning.
On Monday, 8 February 2021, I appeared in the Cape Town magistrate’s court on a charge of theft. I denied this charge at the time, and still do. I maintain that my arrest and detention was unlawful.
On the Wednesday following my court appearance, I wrote a column for Daily Maverick in which I related my experience as I recalled it.
I wrote the column because I was emotional, angry, and humiliated by the entire experience.
The column was published on Friday afternoon.
Upon reflection and additional evidence provided to me, I have realised that there are errors in the column. I now wish to set the record straight.
I had too much to drink in the restaurant and my memory was blurred. The ordeal of the experience of the arrest and having to spend the night in jail compounded my emotional state.
I had a meeting with the restaurant owner and a conversation with a V&A executive this Monday. They showed and explained certain facts to me. I misbehaved and I wish to apologize for my behaviour.
The column in the Daily Maverick created the impression that either the restaurant management, or the waiter that served me, or the V&A Waterfront made a call to the police to have me arrested. It turns out this did not happen. Neither the restaurant nor the Waterfront made any such calls and played no role in my arrest.
The three policemen who arrested me were already at, or near, the venue after attending to an unrelated incident.
They enquired what was going on. In the heat of the moment, I lost my cool and I acted in an impolite manner. My own action played a role in getting me arrested and detained.
I have also now established that the police officers did not take the R1,000 in cash I had with me. I was only provided with the evidence on Monday. I apologise to the three policemen for having said this.
The restaurant owner is busy withdrawing the charge of theft against me as there is no dispute between us. The outstanding bill was paid the Sunday morning prior to my appearance at court as I explained in the column
I must therefore appeal to the public that any backlash against the V&A Waterfront and its restaurants stop. Neither the restaurant nor the V&A Waterfront played any role in my arrest and detention.
I apologise to the restaurant, the V&A Waterfront and the police.
The V&A Waterfront has done much to protect their small and medium-sized businesses – including restaurants – during Covid and subsequent lockdowns, and therefore the organisation is undeserving of the criticism and attacks levelled at them because of my column.
I feel embarrassed about my conduct. In this era of fake news, propaganda and lack of accountability, I must publicly accept responsibility for my own actions and apologise for them. It is the right thing to do.
I also apologise to Daily Maverick readers and its editor for the wrong account of events in the opinion piece. DM‘
‘The original column
It is pay time in a restaurant. The waiter brings the bill. You offer your credit card in the knowledge that there is enough money in your account and that you have used your card that same day to make other purchases.
The bank declines your card, for whatever reason. There might be a glitch at your financial institution, you might have forgotten your pin or whatever else. It is embarrassing, and you must negotiate with the restaurant manager or owner how and when to pay the bill.
I have a restaurant and it happens from time to time. The diner would often leave his driver’s licence behind and go to an ATM. Or I take his particulars — credit card number, cellphone number and ID number — and give him my bank details to do an electronic transfer. Only in cases where a diner ultimately fails to pay might one consider a criminal charge — something that has never been necessary.
Have you ever thought that your card being declined could culminate in you committing a criminal offence? That you are guilty of stealing and that this might land you in a stinking and dirty holding cell where you might have to sit for two days before being trucked to court to appear on a charge of theft?
Impossible? No, it is not. Not in our broken and perverted criminal justice system, where miscreants in blue roam the streets.
On Saturday night at the Cape Town Waterfront, my credit card was declined at an up-market restaurant. When I went in search of an ATM to withdraw money, three policemen pounced on me, cuffed me, and dragged me to a backlit office somewhere in the innards of the Waterfront. They accused me of having stolen R1,600 from the waiter.
Two hours later and in excruciating pain from a thumb that felt as though it had been broken and cuffs eating into my wrists, I was transported to the Table Bay Harbour Police Station, where I was charged with theft, read my rights and thrown into a holding cell.
I was also given a receipt of the belongings that the arresting officers found on me. There was no mention of R1,000 I had in my pocket, which they had taken from me in the backlit room.
It also shows that I did not have either my cellphone or car keys with me when I went in search of an ATM. I had left them behind in the restaurant.
Policemen told me that I would be taken to court sometime on Monday, where I would be formally charged with theft. They refused to listen to any explanation and did not take a warning statement from me.
A mosquito-infested holding cell with three cement bunk beds, a broken shower, a dirty and stinking toilet and a wash basin was to become my home for the next two days.
It was one of the most hellish experiences of my life — something that some law-abiding citizens are exposed to daily.
I am writing this article not to lament my own predicament — which is small compared with others — but to illustrate how easy it is to fall prey to rogue elements in the SAPS.
I have always had enormous empathy and understanding for the many good cops out there who try to keep law and order in a crime-infested and violent country. But there seems to be a growing number of rogue and ruthless cops who target law-abiding citizens to extract bribes, enrich themselves, meet their arrest targets or simply satisfy their sociopathic tendencies.
I am privileged and have a public persona, which others do not have. They are vulnerable and have little recourse.
Constitutional law expert Professor Pierre de Vos says: “The problem of wrongful arrest by the police is widespread. In fact, endemic. But it impacts disproportionately on people who do not have social and economic power or status. The richer and the whiter you are, the less likely that you will be wrongfully arrested.”
***
On 19 November 2019, police commissioner General Khehla John Sitole issued a circular with the headline “Instructions Relating To Arrest And Detention Of Suspects” to each and every policeman and woman in South Africa.
He said: “Arrest is never an obligation, irrespective of the offence. The decision to arrest must be rational, taking all relevant circumstances into account.”
Sitole said that the arrest and detention of a suspect “constitutes one of the most drastic infringements of the rights of an individual and a member should therefore regard it as a last resort”.
He chastised commanders that have issued orders for the unlawful arrest and detention of suspects and said that this is costing the service millions of rands.
Sitole said a person should only be arrested and detained if there is evidence that the accused might disturb the safety of the public or a person, if set free, will attempt to evade his or her trial, will attempt to influence or intimidate witnesses, or will disturb the public order.
The commissioner said that arrest and detention is a “serious and humiliating infringement” upon the freedom of movement of the accused and therefore, where possible, he or she should be released on written warning, written notice, or bail.
The SAPS has, over the past five 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.
Although there are on average 4,500 disciplinary cases reported yearly against policemen, only about 120 police officers are found guilty and pay a fine.
The Independent Police Investigative Directorate (IPID), which is responsible for investigating complaints of alleged criminality and misconduct against police members, has closed 95% of cases without taking any action. Only 4% of cases have resulted in disciplinary action with 2% resulting in sanction.
In 2017, Parliament heard that there were claims totalling R14.6-billion against the police. Most were for unlawful arrest, detention and shootings. This figure has risen to more than R20-billion.
Criminologist Professor Lukas Muntingh says police “grossly misuse their power”. The problem is twofold: SAPS managers are not enforcing the internal disciplinary code and the NPA “very rarely prosecutes police officials, especially for human rights violations”.
Statistics show that there has been a decline in policemen that have been subjected to disciplinary action, and according to Muntingh this “does not bode well for general trust in the state and specifically in the police”.
***
At 6pm on Saturday, 6 February 2021, the waiter brought me my bill of R1,623. The bank declined my credit card twice. I was dumbfounded because I had used the card earlier that day at Exclusive Books and at Pick n Pay. I had also withdrawn R1,000 at an ATM, which I had in my pocket.
I went to the front desk where I spoke to the manager. He also tried to put the card through, but it was declined.
I took the R1,000 out of my pocket and offered it to the manager and waiter as partial payment until I could find the balance. The manager wanted the full amount. I put the money back in my pocket and said to him: I am going to find an ATM to withdraw the balance.
I left my cellphone, keys, and a book on the table where I sat. I had no intention to abscond.
The Waterfront — and I am sure the restaurant as well — is extensively covered by CCTV cameras that can verify my account.
The waiter accompanied me on my way to an ATM, following a few steps behind me. The next moment, three policemen pounced on me, grabbed my arms and cuffed my hands tightly.
Someone in the restaurant must have made a phone call to security or police telling them that I was absconding, even though I had eaten there several times before.
I am not sure how I reacted because I was stunned and dazed. Two policemen each took an arm and with the waiter in tow, hauled me to an office somewhere in the Waterfront. I was told to stand against a wall.
“Why are you doing this?” I demanded to know.
“We are charging you with theft,” one of the cops responded.
“What theft?”
“You stole R1,600.”
“From whom?”
“From this man,” said the cop and pointed to the waiter. “You stole R1,600 from him. And we are charging you.”
“I didn’t steal anything from this man,” I responded. “I was on my way to an ATM to get money to pay the restaurant.”
The policemen removed everything I had in my pockets and in my wallet, including the R1,000 in cash.
Two hours later, I was transported to the Table Bay Harbour Police Station, where I was formally charged with theft of R1,600. CAS 18/2/204 was opened against me.
I signed various forms, including a “Notice of Rights in Terms of the Constitution” which states that I have a right to medical attention. I told four policemen that I suspect that my thumb was broken during the cuffing of my hands and that I needed medical attention. They simply shrugged their shoulders.
I received a “Prisoner’s Property Receipt” of everything I had in my possession when I was arrested. It mentioned a brown wallet with the credit card, an Eskom card, a Pick n Pay card and a Gautrain card.
There was no mention of the R1,000 in cash I had in my pocket. The arresting officers must have stolen it, but I did not say anything then because I was scared.
Most importantly, the receipt shows that I did not have my phone or car
keys with me. I had left them behind in the restaurant. You don’t make a
“getaway” without your keys and phone. (The person I was with at the table took my items with her after I was arrested.)
One of the policemen mentioned that I had far too much to drink in the restaurant.
“Is that a crime?” I asked him. “And is that why you have arrested me?”
He laughed and said: “No, you were arrested because you stole money.”
Throughout this ordeal, I was not asked for an explanation of what happened or for a witness statement. I told several policemen that I wanted to make a statement. No one was interested.
After I had untied my shoelaces I was shown to a dimly lit holding cell. There were three cement bunk beds, a broken shower, a tap and a filthy toilet in the corner one did not dare to use. I was given a blanket. No soap (in the time of Covid). No toilet paper. Nothing.
I had lost my mask during my detention and was only given one the next morning.
The cell was filthy and dilapidated and a far cry from my constitutional right to be detained “under conditions consonant with human dignity”.
I did not sleep. The sound of a holding cell will forever be etched in my mind. It is a cacophony of the high-pitched voices of policemen, doors clanging and the rattle of chains as more suspects are brought in.
***
De Vos says that theft is defined as the unlawful appropriation of property belonging to another with intent to deprive the owner permanently of the property.
On the facts provided, this is not theft. (There is) No appropriation of property and no intention to deprive the owner of the property.”
He says the facts point more towards fraud. “But fraud is the unlawful and intentional making of a misrepresentation that causes actual or potential prejudice to another. Once again, it would be rather difficult to prove intentional misrepresentation — that you were going to pay while not having any intention to do so.”
He says the police should at the very least have established whether there were reasonable grounds to believe that I committed an offence before arresting me.
In 2018 in De Klerk v Minister of Police, the Supreme Court of Appeal confirmed that the arresting officer has a duty to establish the available facts and not to rely exclusively on the say-so of the complainant.
De Vos says there are many reasons the police act in a heavy-handed way and arrest individuals when there are no grounds to do so and/or use excessive force when they make an arrest.
One is that the SAPS measure “success” according to the number of arrests they make. Sometimes there are informal quotas, so police officers go out to make arrests to meet their targets.
There is also a lack of training and authoritarian police culture. Sometimes arrests are made to elicit a bribe or for some other corrupt reason.
Says De Vos: “There is also an argument that police officers face enormous challenges to do their job, are not highly respected by the public and live in fear from dangerous criminals, and thus take out their frustrations on ordinary people who are easily scared to regain a semblance of respect and control.”
***
On Sunday morning, I asked a policeman who stuck his face into my cell what was going to happen. He said that the detective would come in the next day (Monday) to finalise the docket and that I would be taken to the Cape Town Magistrates’ Court for my first appearance. He reminded me that the cops had 48 hours to bring me before court.
The same policeman was back a while later and wanted to know: “Are you that writer?” I said I was.
Things changed. My wife was allowed a visit of five minutes, which a policeman said was very unusual.
An hour or so later, I was ordered out of my cell and taken to an office. A detective sergeant courteously announced that I would be released on a warning. After signing more forms, I insisted on making a statement, which I did and was put on the docket.
I then had insight into the statement made by the waiter after my arrest. He mostly confirmed what I said: that I attempted to pay with my credit card, that it was declined and that I wanted to go to an ATM to get money.
He confirmed that I had offered to pay R1,000 in cash, but that the manager refused to accept it and that I had put it back in my pocket. I turned around and walked towards an ATM.
By his account, there was R1,000 in my pocket when I left the restaurant. After my arrest and according to the police receipt of my belongings, there was no R1,000. That might well be why I was arrested and charged: the money I had on me.
I was released at midday on Sunday.
***
I reported to the Cape Town Magistrates’ Court on Monday. It was chaos. As a result of Covid, suspects must wait outside and are called when their cases come up. It was a Covid trap with some not wearing any masks and others with their masks hanging under their noses.
I saw my detective sergeant entering the building. She told me I must wait. I said to her that my restaurant bill had in the meantime been paid. She said she will make a note of it. She never did.
By midday, with the sun baking down on the troop of suspects awaiting their court turn, I approached access control. They allowed me in.
At 2.30 that afternoon, I appeared before a magistrate in Court 15. The prosecutor told the magistrate that this case was not suitable for a criminal trial, but for mediation.
This is a concept in our law to resolve disputes speedily and out of court. The mediator must explore options of resolving the issue that can expedite the trial or resolve the case. Successful mediation also results in the withdrawal of the charges.
In my case, the mediation revolves around the settlement of the bill — which was already done on Sunday morning.
I spoke to the prosecutor afterwards and he said he was not aware that my restaurant bill had already been paid. I told him that I failed to understand what else there was to mediate between me and the complainant. I did not steal R1,600 from him and he suffered no loss. There was no theft.
I told him that my arrest had prevented me from paying or settling my restaurant bill. He told me to stop acting as though I am the victim.
At the moment, I am an accused in a criminal case until mediation on 30 March 2021.
I will carry the trauma of Saturday night for some time. It has confirmed what most South Africans know: be very, very scared of the men and women in blue. DM’
Chris von Ulmenstein, WhaleTales Blog: www.chrisvonulmenstein.com/blog Tel +27 082 55 11 323 Twitter:@Ulmenstein Facebook: Chris von Ulmenstein Instagram: @Chrissy_Ulmenstein @MyCapeTownGuide
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Perhaps a 180 degree turn?
Perhaps. Very odd state of affairs.
Chris von Ulmenstein
Think I was too cryptic. If Jacques did a 360 degree turn (as you describe) that means he didn’t change his position at all. If I’m walking north and and do a 360 turn and continue walking, I will still be walking north. Whereas a 180 degrees turn means he did a u-turn