The original column<\/i><\/strong><\/p>\nIt 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.<\/i><\/p>\n
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><\/p>\n
I have a restaurant and it happens from time to time. The diner would often leave his driver\u2019s licence behind and go to an ATM. Or I take his particulars \u2014 credit card number, cellphone number and ID number \u2014 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 \u2014 something that has never been necessary.<\/i><\/p>\n
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?<\/i><\/p>\n
Impossible? No, it is not. Not in our broken and perverted criminal justice system, where miscreants in blue roam the streets.<\/i><\/p>\n
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.<\/i><\/p>\n
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><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
It was one of the most hellish experiences of my life \u2014 something that some law-abiding citizens are exposed to daily.<\/i><\/p>\n
I am writing this article not to lament my own predicament \u2014 which is small compared with others \u2014 but to illustrate how easy it is to fall prey to rogue elements in the SAPS.<\/i><\/p>\n
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><\/p>\n
I am privileged and have a public persona, which others do not have. They are vulnerable and have little recourse.<\/i><\/p>\n
Constitutional law expert Professor Pierre de Vos says: \u201cThe 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.\u201d<\/i><\/p>\n
\u00a0***<\/i><\/p>\n
On 19 November 2019, police commissioner General Khehla John Sitole issued a circular with the headline \u201cInstructions Relating To Arrest And Detention Of Suspects\u201d to each and every policeman and woman in South Africa.<\/i><\/p>\n
He said: \u201cArrest is never an obligation, irrespective of the offence. The decision to arrest must be rational, taking all relevant circumstances into account.\u201d<\/i><\/p>\n
Sitole said that the arrest and detention of a suspect \u201cconstitutes one of the most drastic infringements of the rights of an individual and a member should therefore regard it as a last resort\u201d.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
The commissioner said that arrest and detention is a \u201cserious and humiliating infringement\u201d 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.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
Criminologist Professor Lukas Muntingh says police \u201cgrossly misuse their power\u201d. The problem is twofold: SAPS managers are not enforcing the internal disciplinary code and the NPA \u201cvery rarely prosecutes police officials, especially for human rights violations\u201d.<\/i><\/p>\n
Statistics show that there has been a decline in policemen that have been subjected to disciplinary action, and according to Muntingh this \u201cdoes not bode well for general trust in the state and specifically in the police\u201d.<\/i><\/p>\n
\u00a0***<\/i><\/p>\n
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><\/p>\n
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><\/p>\n
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><\/p>\n
I left my cellphone, keys, and a book on the table where I sat. I had no intention to abscond.<\/i><\/p>\n
The Waterfront \u2014 and I am sure the restaurant as well \u2014 is extensively covered by CCTV cameras that can verify my account.<\/i><\/p>\n
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.<\/i><\/p>\n
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><\/p>\n
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.<\/i><\/p>\n
\u201cWhy are you doing this?\u201d I demanded to know.<\/i><\/p>\n
\u201cWe are charging you with theft,\u201d one of the cops responded.<\/i><\/p>\n
\u201cWhat theft?\u201d<\/i><\/p>\n
\u201cYou stole R1,600.\u201d<\/i><\/p>\n
\u201cFrom whom?\u201d<\/i><\/p>\n
\u201cFrom this man,\u201d said the cop and pointed to the waiter. \u201cYou stole R1,600 from him. And we are charging you.\u201d<\/i><\/p>\n
\u201cI didn\u2019t steal anything from this man,\u201d I responded. \u201cI was on my way to an ATM to get money to pay the restaurant.\u201d<\/i><\/p>\n
The policemen removed everything I had in my pockets and in my wallet, including the R1,000 in cash.<\/i><\/p>\n
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><\/p>\n
I signed various forms, including a \u201cNotice of Rights in Terms of the Constitution\u201d 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><\/p>\n
I received a \u201cPrisoner\u2019s Property Receipt\u201d 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.<\/i><\/p>\n
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.<\/i><\/p>\n
Most importantly, the receipt shows that I did not have my phone or car
\nkeys with me. I had left them behind in the restaurant. You don\u2019t make a
\n\u201cgetaway\u201d without your keys and phone. (The person I was with at the table took my items with her after I was arrested.)<\/i><\/p>\n
One of the policemen mentioned that I had far too much to drink in the restaurant.<\/i><\/p>\n
\u201cIs that a crime?\u201d I asked him. \u201cAnd is that why you have arrested me?\u201d<\/i><\/p>\n
He laughed and said: \u201cNo, you were arrested because you stole money.\u201d<\/i><\/p>\n
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.<\/i><\/p>\n
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><\/p>\n
I had lost my mask during my detention and was only given one the next morning.<\/i><\/p>\n
The cell was filthy and dilapidated and a far cry from my constitutional right to be detained \u201cunder conditions consonant with human dignity\u201d.<\/i><\/p>\n
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.<\/i><\/p>\n
\u00a0***<\/i><\/p>\n
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.<\/i><\/p>\n
On the facts provided, this is not theft. (There is) No appropriation of property and no intention to deprive the owner of the property.\u201d<\/i><\/p>\n
He says the facts point more towards fraud. \u201cBut 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 \u2014 that you were going to pay while not having any intention to do so.\u201d<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
One is that the SAPS measure \u201csuccess\u201d 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.<\/i><\/p>\n
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.<\/i><\/p>\n
Says De Vos: \u201cThere 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.\u201d<\/i><\/p>\n
\u00a0***<\/i><\/p>\n
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\u2019 Court for my first appearance. He reminded me that the cops had 48 hours to bring me before court.<\/i><\/p>\n
The same policeman was back a while later and wanted to know: \u201cAre you that writer?\u201d I said I was.<\/i><\/p>\n
Things changed. My wife was allowed a visit of five minutes, which a policeman said was very unusual.<\/i><\/p>\n
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><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
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><\/p>\n
I was released at midday on Sunday.<\/i><\/p>\n
\u00a0***<\/i><\/p>\n
I reported to the Cape Town Magistrates\u2019 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><\/p>\n
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.<\/i><\/p>\n
By midday, with the sun baking down on the troop of suspects awaiting their court turn, I approached access control. They allowed me in.<\/i><\/p>\n
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.<\/i><\/p>\n
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.<\/i><\/p>\n
In my case, the mediation revolves around the settlement of the bill \u2014 which was already done on Sunday morning.<\/i><\/p>\n
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><\/p>\n
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.<\/i><\/p>\n
At the moment, I am an accused in a criminal case until mediation on 30 March 2021.<\/i><\/p>\n
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\u2019<\/strong><\/i><\/p>\n <\/p>\n
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<\/strong><\/p>\n <\/p>\n
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Investigative journalist Jacques Pauw had the Cape Town restaurant industry abuzz about an opinion piece he wrote in Daily Maverick<\/b> last week about his arrest by the police in the Waterfront in 6 February 2021, \u00a0after 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. \u00a0I and others called for the restaurant and its manager to be named and shamed! \u00a0Restaurant lovers were speculating as to which restaurant it could have been.<\/p>\n