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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO:  1372/2014

Reportable: No

Circulate to Judges: No

Circulate to Magistrates: No

Circulate to Regional Magistrates: No

In the matter between:

OUPANYANA JOHNSON MOLAODI                                                    Plaintiff

and

THE MINISTER OF POLICE                                                             Defendant

 

DATE OF HEARING : 30 NOVEMBER 2016

DATE OF JUDGMENT : 15 DECEMBER 2016

COUNSEL FOR THE PLAINTIFF : MR. GURA

COUNSEL FOR THE DEFENDANT : MS. SEBEKEDI

 

JUDGMENT

 

HENDRICKS J

 

INTRODUCTION

[1] This is an action for damages as a result of the alleged wrongful arrest and detention of the Plaintiff by members of the South African Police Services (“SAPS”) without a warrant on allegations of stock theft. The merits and quantum are separated and this Court is called upon to only determine liability, if any, on the part of the Defendant.

It is alleged that on two occasions to wit, 21 September 2012 and 17 October 2012 respectively, the Plaintiff was arrested by Warrant Officer Nko without a warrant and detained. He was accused of having committed stock theft. It is alleged that the arrest and detentions were unlawful.

[2] The Defendant pleaded that the arrest and detention was lawful and couched the plea in the following terms:

“8.1 The arrest and detention were justifiable in that the offence of Stock Theft was committed by the Plaintiff and arrested in that regard.

8.2 The Plaintiff committed an offence which warranted an arrest and subsequent detention in accordance with Section 40 (1)(a) of the Criminal Procedure Act 51 of 1977.

8.3 The Plaintiff could not provide the arresting officer with a satisfactory account of where he obtained the cattle nor proof ownership thereof and kept on changing his versions nor follow the procedure as specified in terms of Section 7 of the Animal Identification Act 6 of 2002 regarding the brand mark found on such cattle further evidence in this regard will be adduced in court.”

The lawfulness or otherwise of the arrest and detention is therefore the crux of the dispute that this Court is called upon to adjudicate.

[3] The evidence presented can be succinctly summarized as follow:

Warrant Officer Nko, a member of the South African Police Services (“SAPS”) attached to the Stock Theft Unit received information that the Plaintiff had in his possession cattle of which he is not the owner. This prompted him to investigate and verify the report he received. He went to where the cattle of the Plaintiff were and found his headboy. Thereafter, he proceeded to the Plaintiff’s house where he found the wife of the Plaintiff. He was informed that the Plaintiff was in Mahikeng town. He telephonically contacted the Plaintiff and it was arranged that they should meet. He and the Plaintiff proceeded to the Plaintiff’s kraal. He asked the Plaintiff whether all the cattle in the kraal was his whereupon the Plaintiff responded in the affirmative. He then specifically asked about a cow and a calf, which was not marked (either earmarked or brandmarked). This cow was in the kraal of the Plaintiff and therefore in possession of the Plaintiff for more than a year – it even calved whilst being in the Plaintiff’s possession. No satisfactory explanation was advanced as to how the Plaintiff came to be in possession of the cow (and calf).

[4] According to the Plaintiff and his wide this was a stray cow who happened to be one day amongst their cattle at the grazing field and who, on its own, came to the kraal. For more than a year, this cow grazed with their cattle and came to the kraal at night. The cow even calved during this period. According to the Plaintiff, he reported it to Mr. Makoka, a member of the Stock Theft Unit of SAPS. Upon being asked whether the Plaintiff did report the stray cow to him, Mr. Makoka denied it. The Plaintiff was arrested and taken to court within the stipulated period of 48 hours. This constituted the first arrest of 21 September 2012.

[5] Whist investigating and following up leads about a case of Stock Theft which was reported at Ottoshoop, information led to the arrest of one Rurak. Rurak and his girlfriend was interrogated by Warrant Officer Nko. They implicate the Plaintiff in the commission of the offence.  Eartags were also discovered and Rurak’s girlfriend said that it was the Plaintiff who removed it from the ears of the cattle that were stolen in Ottoshoop. The Plaintiff was confronted and interrogated about this information. He and Rurak blamed each other for the commission of this offence. This led to the arrest of the Plaintiff on 17^th October 2012. The Plaintiff was taken to court within the specified time period of 48 hours. Bail was not granted to the Plaintiff seeing that this was the second similar offence committed soon after he was released on bail after being arrested on 21 September 2012.

[6] The onus to proof that the arrest was lawful is on the Defendant. It is well established that the onus rests on the arresting officer to prove the lawfulness of the arrest. This is so because, as Rabie CJ stated in Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589E – F:

“An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”

[5] Section 40 (1) (a), (b) and (g) of the Criminal Procedure Act 51 of 1977, as amended, states:

“40 Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person-

(a) who commits or attempts to commit any offence in his presence;

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

(c) …

(d) …

(e) …

(f) …

(g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;

(h) …”

[6] Section 9 of the Stock Theft Act 57 of 1959 states:-

“9. Arrest and search without warrant:-

(1) Any person may, without warrant, arrest any other person upon reasonable suspicion that such other person has committed the offence mentioned in section two or four.

(2) Whenever any justice of the peace, policeman, or owner, lessee or occupier of land reasonably suspects that any person has in or under any receptacle or covering or in or upon any vehicle any stock or produce in regard to which an offence has been committed, such justice of the peace, policeman, owner, lessee or occupier may without warrant search such receptacle or vehicle and remove such covering, and if he thereupon finds any stock or produce in regard to which he reasonably suspects an offence to have been committed, he may without warrant arrest such person and seize such vehicle or receptacle and shall as soon as possible convey such person and the stock or produce so found and the vehicle or receptacle so seized to a police station or charge office.

[7] In Naidoo v Minister of Police 2016 (1) SACR 468 (SCA) the following is stated in paragraphs [40] and [41]:

[40] And, as was explained by Van Heerden JA in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G – H, once the jurisdictional requirements of the section are satisfied, the peace officer may, in the exercise of his discretion, invoke the power to arrest permitted by the law. However, the discretion conferred by s 40(1) of the CPA must be properly exercised, that is, exercised in good faith, rationally and not arbitrarily. If not, reliance on s 40(1) will not avail the peace officer.

[41] It is now settled that the purpose of the arrest is to bring the arrestee before the court for the court to determine whether the arrestee ought to be detained further, for example, pending further investigations or trial. (See Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) (2011 (5) SA 367; [2011] 2 All SA 157; [2010] ZASCA 141) paras 30 – 31.) Thus it goes without saying that an arrest will be irrational and consequently unlawful if the arrestor exercised his discretion to arrest for a purpose not contemplated by law.”

See:  Mvu v Minister of Safety and Security 2009 (2) SACR 291 (GSJ).

Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at  

page 818G – H;

Minister of Safety and Security v Sekhoto and Another  2011 (1) SACR 315 (SCA) (2011 (5) SA 367) at paragraph [6].

[8] In MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) it was held:

“[42] Section 40(1) of the CPA states that a police officer 'may', and not 'must' or 'shall', arrest without a warrant any person who commits or is reasonably suspected of having committed any of the offences specified therein. In its ordinary and grammatical use, the word 'may' suggests that police officers have a discretion whether to arrest or not. It is permissive, and not peremptory or mandatory. This requires police officers to weigh and consider the prevailing circumstances and decide whether an arrest is necessary. No doubt this is a fact-specific enquiry. As the police officers are confronted with different facts each time they effect an arrest, a measure of flexibility is necessary in their approach to individual cases. Therefore, it is neither prudent nor practical to try to lay down a general rule and circumscribe the circumstances under which police officers may or may not exercise their discretion. Such an attempt might have the unintended consequence of interfering with their discretion and, in the process, stymie them in the exercise of their powers in pursuit of their constitutional duty to combat crime.

[43] As s 40(1) grants police officers a discretion whether to arrest, the two courts should have gone further in their evaluation of the evidence to determine whether the facts justified an arrest. This is so because an arrest is a drastic invasion of a person's liberty and an impairment of their rights to dignity, both of which are enshrined in the Bill of Rights.

[44] In other words, the courts should enquire whether, in effecting an H arrest, the police officers exercised their discretion at all. And if they did, whether they exercised it properly as propounded in Duncan or as per Sekhoto where the court, cognisant of the importance which the Constitution attaches to the right to liberty and one's own dignity in our constitutional democracy, held that the discretion conferred in s 40(1) must be exercised 'in light of the Bill of Rights'.

[45] Although both the High Court and full court traversed the discretion embedded in s 40(1), as  elucidated in Sekhoto, in their respective judgments - they did not appropriately evaluate the facts to B determine if the arrest were justified.

[46] As far back as 1986, the Appellate Division (now the Supreme Court of Appeal) enunciated the correct legal approach in Duncan as follows:

'If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, ie, he may arrest the suspect. In other words he then has a discretion as to whether or not to exercise that power … No doubt the discretion must be properly exercised.'

This salutary approach was confirmed in Sekhoto as follows:

‘Once the jurisdictional facts for an arrest … in terms of any paragraph of section 40 (1) … are present, a discretion arises. The question whether there are any constraints on the exercise of discretionary powers is essentially a matter of construction of the empowering statute E in a manner that is consistent with the Constitution. In other words, once the required jurisdictional facts are present the discretion whether to arrest or not arises. The officer, it should be emphasised, is not obliged to effect an arrest.'

[Emphasis added.]

[47] Having established that police officers are not obliged to effect an arrest, despite all the jurisdictional facts being present, the next questions arise: what amounts to a proper exercise of discretion? Does the Bill of Rights have an impact on the common-law understanding of how police discretion should be exercised? These are the questions that the paragraphs which follow seek to address.”

[9] As far as the first arrest of 21 September 2012 is concerned, it is common cause that the Plaintiff is the owner of the cattle kraal in which the stray cow and the calf were found. It is common cause that the cow does not belong to the Plaintiff and that it was in the Plaintiff’s possession for more than a year. It even calved during this period. Although the Plaintiff did not brandmark it as his cow it is clear that he did nothing to report it to the police – a procedure that he was well aware of. He was therefore in possession of the cow and calf which does not belong to him.

[10] Much have been made during cross- examination of Warrant Officer Nko that he did not exercise his discretion whether to arrest the Plaintiff or not. The following actions of Warrant Officer Nko need to be taken into account:

· He received information about a cow in the kraal of the Plaintiff that does not belong to him.

· He went to the Plaintiff’s kraal and only found his headboy.

· He went to the Plaintiff’s house where he found the Plaintiff’s wife.

· She phoned the Plaintiff who was in town.

· Nko went to town to meet with the Plaintiff and accompanied him to his kraal.

· He asked the Plaintiff if all the cattle belong to him, to which the Plaintiff responded in the affirmative.

· The cow and calf were then pointed out and the Plaintiff was questioned about it.

· The Plaintiff was adamant that there was no duty upon him to report the stray cow.

· No satisfactory explanation was advanced as to how the Plaintiff came to be in possession of the cow and calf.

· Nko then formed a suspicion that the cow may be stolen.

· The Plaintiff said that he informed a erstwhile colleague of Warrant Officer Nko namely Mr. Sello Makoka about the cow.

· Nko contacted Mr. Makoka to verify this information. Mr. Makoka denied any knowledge about what the Plaintiff allege he told Mr. Makoka.

· Nko then arrested the Plaintiff.

[11] Based on the aforementioned, it is quite apparent that Warrant Officer Nko conducted his investigations first and foremost before he affected the arrest of the Plaintiff. To this end he even asked Mr. Makoka to verify the reasonableness of the Plaintiff’s version and obtain a statement from Mr. Makoka. As a result of the fact that the Plaintiff failed to give a satisfactory explanation as to how he came to be in possession of the cow and had it for such a long period of time without reporting it to the police, Warrant Officer Nko formed the reasonable suspicion that the Plaintiff was in possession of stock (cow and calf) to which he cannot afford an acceptable and reasonable explanation. The Plaintiff’s arrest was therefore lawful. It is common cause that the Plaintiff was detained on the Friday and was taken to court on the Monday- within the 48 hour period – whereupon he was released on bail. No case has been made that the detention was unlawful.

[12] With regard to the second arrest, it is clear that Warrant Officer Nko had information that the Plaintiff was part of a group or syndicate that committed stock theft in Ottoshoop. He impounded three (3) cattle and made enquiries about it. Information at his disposal implicate the Plaintiff in the commission of the offence of stock theft. Amongst others was the Plaintiff also implicated by a fellow suspect and the girlfriend of this suspect. When interrogated, the Plaintiff and his fellow suspect implicated each other in the commission of the offence of stock theft. The Plaintiff was amongst others implicated as the person who removed the ear tags from the cattle, which Warrant Officer Nko found. Based on the information at his disposal and after considerable investigations being conducted, Warrant Officer Nko arrested the Plaintiff. This was the second arrest following closely on the first arrest of 21 September 2012 for which the Plaintiff was still out on bail. I am of the view that based on the evidence at his disposal, Warrant Officer Nko acted reasonable and did not exercise his discretion to arrest capriciously. In my view, the arrest was lawful based on the investigations conducted.

[13] The subsequent detention of the Plaintiff for a period of 23 days was under security. According to Warrant Officer Nko within a period of 48 hours after his arrest, was the Plaintiff taken to court. Warrant Officer Nko did not oppose bail but it was obvious to the prosecution that the Plaintiff was arrested again within the period during which he was released on bail. This does not mean that his detention was unlawful. There was a valid reason for his detention after he was taken to court within the specified time limit. I am of the view that the detention of the Plaintiff was lawful under the circumstances. He was not detained for any ulterior motive.

[14] In the result, I am of the view that the arrest of the Plaintiff on both occasions (21 September 2012 and 17 October 2012) was lawful. So too, was the detention that followed upon both these arrests lawful. In the premises, the Plaintiff’s action should to be dismissed with costs.

 

ORDER

[15] Consequently, the following order is made:

(1) The Plaintiff’s claim for unlawful arrest and detention on both 21 September 2012 and 17 October 2012 is dismissed.

(2) The Plaintiff is ordered to pay the costs of this action.

 

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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