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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”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 1109/14

In the matter between:-

GABORONE LESLEY MEREYOTLHE                                                                 Plaintiff

And

MINISTER OF POLICE                                                                               Defendant

JUDGMENT

GUTTA J.

A.        INTRODUCTION

[1] Plaintiff, Mr Gaborone Lesley Mereyotlhe instituted an action with 3 claims against the Minister of Police for inter alia the following:

1.1 Claim 1:     Loss of Income

Plaintiff claims damages for loss of income in the amount R650 000.00 suffered as a result of his Nissan bakkie with registration number  [...] and his diesel trailer with registration number [...] having being unlawfully and without a warrant of seizure, seized by the police for a period of 26 months at the rate of R15 000.00 per month in respect of the bakkie and R10 000.00 per month in respect of the trailer which he had leased to Mr Lephoro for that period.

1.2       Claim 2: Loss of Income

Plaintiff claims damages for loss of income in the amount of R280 000.00 suffered as a result of his trailer [...] having being unlawfully and without a warrant of seizure, seized by the police for a period of 28 months at the rate of R10 000.00 per month which he had leased to Mr Lephoro for that period.

1.3       Claim 3: Unlawful Arrest and Detention

Plaintiff claims damages in the sum of R700 000.00 for his unlawful arrest and detention. He alleged that he was arrested without a warrant on the 13 August 2013 at Hartebeesfontein and released on the 20 August 2013.

B.         PLEADINGS

[2] Defendant in its plea denied liability and alleged inter alia as follows:

2.1       Claim 1

“4.1     Defendant has no knowledge that plaintiff leased his van (bakkie) and trailer to one Mr Lephoro, does not admit same and puts plaintiff to the proof thereof;

4.2       Defendant pleads that the said Lephoro was part of the syndicate involved in obtaining fuel fraudulently from various garages by filling it in the trailer referred to in paragraph 3 and 10 of  Plaintiff’s Amended Particulars of Claim with counterfeit and/or “cloned” fuel cards.

4.3       Defendant avers that on 21 March 2012, a white Nissan bakkie and a yellow tanker trailer were impounded from Lephoro by warrant office Willem Stefanus Jacobus Erasmus near Setlagole as they had been used in the commission of the aforesaid fraudulent activity during October 2011 at a certain garage in Vryburg.

4.4       Defendant pleads that at the time they were impounded by warrant officer Erasmus on 21 March 2012, the bakkie had false registration numbers [...] whilst its licence disc showed registration number [...].

4.5       Defendant avers further, that on enquiry from Nicolaas Johannes Kriegler, a Fraud Manager at Wesbank, warrant officer Erasmus was informed that counterfeit and/or “cloned” fuel cards were used to fill in diesel in the trailer at Setlagole garage once on 15 March 2012 and twice on 17 March 2012.

4.6       Defendant pleads that the vehicles were kept as exhibits as they were used in the commission of fraudulent activities.

4.7       Save as aforesaid, the remainder of the allegations herein contained are denied as if specifically traversed and plaintiff is put to the proof thereof.

8.2       Defendant pleads that plaintiff’s aforesaid vehicles were impounded as they were used in the commission of fraudulent activities, namely using counterfeit and/or “cloned” fuel cards in filling in diesel in his various vehicles”.

2.2       Claim 2

“11.1   The contents hereof are denied.

11.2   Defendant pleads that plaintiff’s Nissan bakkie with registration numbers [...] and a yellow tanker trailer with registration numbers [...] and not  [...] were impounded by warrant officer Marius Bloem and constable Alfred Moloi on 24 November 2011 and not during December 2011 as alleged by plaintiff.

11.3   Defendant pleads further that the said vehicles were impounded by the said police officers as they were used in the commission of fraud by using counterfeit and/or “cloned” fuel cards in filling the said trailer with diesel at Vryburg garage on 13 October 2011 and 18 October 2011 respectively.

13.     Defendant pleads that the criminal case referred to herein was not disposed of during January 2012 but avers that the case was provisionally withdrawn during March 2012 when the case docket was referred to the Director of Public Prosecutions for decision, which decision is still pending”.

2.3       Claim 3

“17.1   Defendant denies that plaintiff was arrested without a warrant and pleads that plaintiff was arrested on a warrant of arrest by warrant officer Leghae together with Galetlelewe on 13 August 2013 at Hartebeesfontein and not at Delareyville and was detained at Delareyville Police Station and not at Ottosdal police cells.

17.2    Defendant denies that the arrest and detention of plaintiff was unlawful and puts plaintiff to the proof thereof.

17.3    Defendant pleads that plaintiff was released on bail on 19 August 2013, that the case was struck off the roll on 12 May 2014 and pleads further that the case docket was later taken to the said Director of Public Prosecutions on 20 May 2014 for decision, which decision is still pending.

18.1     Defendant pleads specifically that the said arrest and detention were lawful in terms of the lawfully issued and executed warrant of arrest.

18.2     Defendant pleads further that plaintiff was arrested on a warrant of arrest on a reasonable suspicion of committing or having committed an offence of fraud under Schedule 1 of the Criminal Procedure Act 51 of 1977, to wit, fraud”.

[3] The parties agreed that plaintiff has the duty to begin as defendant alleged that plaintiff was arrested with a warrant of arrest.

C:        EVIDENCE

[4] Mr Gaborone Lesley Mereyotlhe (Plaintiff) under claim 1 and claim 2 said he is the sole shareholder of Moonlight Trackings and part of his business was to hire his vehicles. He concluded written contracts with all his clients who hired his vehciles. In 2011, he rented his Nissan Hardbody with registration number [...] and a trailer with registration number [...] to one Mr Johannes Lephoro (Lephoro). Lephoro was arrested while driving his Nissan vehicle and the trailer in Vryburg and the police confiscated the vehicle and trailer. Plaintiff went to the Vryburg police station and produced the vehicle’s registration documents and his identity document (ID). The police only released the Nissan vehicle and not the trailer. Lephoro was released on bail. Lephoro’s case was subsequently withdrawn. The police returned the trailer to him on the 20 June 2014.

[5] He said on the 21 March 2012 he hired the same Nissan Hardbody vehicle with another trailer with registration number [...] to Lephoro. He produced three contracts concluded with Lephoro in January, February and March 2012. Mr Lephoro was arrested while driving from Mafikeng to Taung and the vehicle and trailer were confiscated. He approached the police and produced the documents to prove ownership of the vehicle and his ID document. The police informed him that they would not release his vehicle and trailer until Lephoro’s case was finalised.

[6] In 2012 his lawyer addressed a letter to the police requesting that they release the vehicle but they failed to do so. They told him they would only release the vehicle once Lephoro’s case was finalised. His vehicle and the trailer were not used as evidence against Lephoro. He was not charged in respect of the vehicle and trailers nor was he called as a witness. He said he lost income during the period that his trailers and vehicle were confiscated. The vehicle was released in June 2014.

[7] In respect of claim 3, he said he was arrested at Hartebeesfontein on the 13 August 2013 and released on the 20 August 2013 at Delareyville. He was arrested by Inspector Legae and Officer Galetlhobogwe in Hartebeesfontein on fraud charges. They told him they have a warrant for his arrest but they were unable to produce it. They opened the docket and told him there was footage, a photograph implicating him and they were arresting him based on the footage. He told them that they are arresting the wrong person and he will sue the Minister of Police. They took him to Delareyville Police Station where he again requested the warrant of arrest but the police still didn’t produce it. He saw the warrant of arrest for the first time when he consulted his legal representative. The warrant had a date stamp of the 19 October 2007 and a line was drawn through it. It referred to fraud committed by plaintiff on the 10 May 2012. He denied committing any offence in May 2012.

[8] He was referred to a statement made by one Jeanette Moleme (Moleme), a cashier who mentioned that the driver of a gold brown vehicle with registration number [...] had purchased diesel and the driver of a white Toyota bakkie with registration number [...] fetched the diesel. Plaintiff said he does not have motor vehicles with those registration numbers. He was also referred to a statement by one warrant officer Roelof Johannes Herbst (Herbst), the investigating officer of two fraud cases committed on the 5 May 2012 and the 10 May 2012 who said the suspect was driving a BMW with registration number [...] which vehicle is registered in plaintiff’s name. Plaintiff confirmed that registration number [...] was the registration number for his Gold BMW and said Herbst’s statement did not corroborate with Moleme’s statement concerning the registration number of the vehicle. 

[9] Under cross examination, plaintiff said the first lease agreement with Lephoro was on 9 January 2012 and the last agreement was on 9 April 2012. He said he entered into a lease agreement with Lephoro in November 2011, but he could not find the contract as he does not have a good filing system. He said he didn’t ask Lephoro about the charges against him because Lephoro paid him in advance and at the time he didn’t suffer a loss. His concern was to recover his vehicles. He was questioned why in March 2012 he again leased his bakkie and trailer to Mr Lephoro when he knew that Lephoro was arrested for theft of diesel. He said as a businessman you make mistakes and this was not the first incident. He leased to Mr Lephoro in 2012 because Lephoro convinced him that the same thing that happened in Vryburg of theft of diesel will never happen again. Lephoro told him that he was collecting used diesel and he believed him.

[10] He admitted that one Molose Frans Ratana leased his vehicle and was also arrested in Roodepoort for theft of diesel.  It was put to him that a criminal case was also opened in Kimberly in 2011 because his bakkie and trailer filled diesel using cloned/counterfeit cards. He said he was not aware of this.  He was also questioned about one Obuseng Lazarus Moitoi (Moitoi) and he confirmed that Moitoi worked with Lephoro collecting used oil. He said he was not aware that Moitoi was also arrested for filling diesel using a cloned card while driving plaintiff’s Nissan bakkie in Vryburg. Plaintiff said when his bakkie was seized the driver was Lephoro and not Moitoi. He was aware that Lephoro was convicted and sentenced in respect of the Setlagole case where he filled the vehicle using cloned cards.

[11] Plaintiff was shown the charge sheet, where Moitoi was charged with Lephoro in November 2011 and the keys to the vehicle were found in Moitoi’s possession. He was referred to a statement and an affidavit made by Lephoro. At this stage, the Court, provisionally accepted the hearsay evidence of Lephoro as counsel for defendant informed the Court, that Lephoro was going to be called to testify. Lephoro was later not called as a witness. Accordingly it is not necessary for this Court to refer to the evidence relating to the affidavit or statements by Lephoro as it constitutes hearsay evidence. 

[12] Plaintiff testified that most of the vehicles people hired from him were used to deliver used oil to ‘Old Oil Man’. Monies for the used oil was paid into his account as payment had to be made to someone who had a registered address and a bank account number. He had an agreement with his clients that monies would be paid by ‘Old Oil Man’ into his bank account and he would take a percentage from the money as interest, and pay the balance to the men who hired the vehicles. Plaintiff was questioned about a bank statement he discovered and asked to point out instances where money was paid into his account which he paid to Lephoro. He replied that he has two business accounts and the account he used to receive payment for used oil delivered was his First National Bank account (FNB) because ‘Old Oil Man’ was banking with FNB, while the discovered statement was his Absa Bank account. When asked to produce the FNB account, he replied that the account was closed. When it was put to him that he could retrieve copies of the statements from the bank, he replied that he tried in 2014 but was unable to retrieve copies from the bank. He said there was no clause in the lease agreement relating to ‘Old Oil Man’ because not every person who leased his vehicle delivered oil to ‘Old Oil Man’. Also the lease contracts were drafted before the Oil Man came into the picture.

[13] It was put to him that his vehicles were confiscated for having been used in fraudulent transactions by filling his vehicle using clone or counterfeit cards, that instead of collecting used oil, they committed fraud, he replied that, that was their choices. He denied that Lephoro was employed by him to collect diesel using clone cards, or that he paid him a salary. It was put to him that the police were justified in keeping the vehicles as exhibits in terms of the law.

[14] Under claim 3, plaintiff admitted that he was arrested on the 13 August 2013 at Hartebeesfontein where he appeared as the accused. He denied that he approached the police and said they approached him when he was on his way to his vehicle and they announced that they were arresting him. He denied asking the police officers whether he could talk to them so they don’t arrest him because he has businesses in Pretoria. He said he has businesses in Johannesburg not Pretoria. He agreed that he asked them if he could park his vehicle at a female relative in Digane.

[15] He said he went alone to the police station and denied going there with people who run a tow service. It was put to him that when the police seized the vehicle on 21 March 2012, the police found his identity document in the vehicle. He replied that it may be possible but when he collected his things from the police, he was not given his identify document.

[16] The first witness for defendant was Marius Bloem (Bloem). He is a member of the South African Police for 24 years. On the 24 November 2011 he was contacted by one Sakkie Bernard (Bernard) of Engen garage concerning a suspicious vehicle that was standing at the entrance of the Taxi rank in Vryburg. He and Officer Erasmus proceeded to the taxi rank and found a white Nissan bakkie and a trailer. The Nissan bakkie registration number was [...] and the trailer was [...]. Constable Moloi (Moloi) arrived in another vehicle. He inspected the vehicle and observed that the disk registration differed from the vehicle’s registration number as the registration was GP and the disk was NW. Bernard said the vehicle was possibly involved in car fraud as he was contacted by Mr van der Merwe from Wesbank to be on the look out for this vehicle. He tested the registration numbers of the trailer and the vehicle and found that they belong to plaintiff. Moitoi was pointed out as the suspect. Moitoi initially denied having anything to do with the vehicle but when searched the vehicles keys were found in his possession. He drove the vehicle to the police station where he registered vehicle and trailer in the SAP13. Moitoi was arrested.

[17] Willem Stefanus Jacobus Erasmus (Erasmus) is a member of the SAP for 28 years stationed in Vryburg. He testified in respect of both claim 1 and 2. In respect of the incident of the 24 November 2011, he said he was contacted by Bernard the owner of Engen garage in Vryburg. Bernard reported that the vehicle that is suspected of being involved in theft of diesel using fraudulent cards was on the corner of Moffat and Mark Street. He went to the Engen garage with Bloem and Moloi and found the vehicle parked there. Bernard gave him a photograph of the vehicle with the trailer and tanker which was handed to him by Westbank who are investigating fraud of diesel. Bloem found the keys to the vehicle in Moitoi’s possession and opened the vehicle. Moitoi said he was given a lift by the owner who gave him the keys for safekeeping. He searched the vehicle in his presence and found several petrol receipts, cash slips and deposit slip from Absa Bank. Under the passenger seat, he found a blue bag containing 5 registration number plates. Three plates had registration numbers [...] and two were [...]. There was also a money bag, with 2 Nedbank cards, and plaintiff’s ID and an appointment card.

[18] People from Nedbank arrived and confirmed that the Nedbank card was fraudulent and that the cards were involved in two transactions where diesel was fraudulently stolen. Moitoi was arrested. The vehicle and the trailer were confiscated and handed over to SAP 13. It was put to him that it is common cause that the white Nissan bakkie was returned to plaintiff on the 4 January 2012. He replied that it was irregularly handed back to plaintiff.

[19] In respect of the second incident of the 21 March 2012, he said he was attending a stock theft case. While driving he observed a bakkie that did not have a registration number in front of the vehicle. It also had a trailer with no number plate. The driver was Lephoro. The disk was the same as the previous vehicle in 2011. The registration number on the back of the vehicle was [...] which was not the same number that appeared on the disk. There was another person with Lephoro who jumped out of the vehicle and ran away. He searched the vehicle in Lephoro’s presence and found another registration number plate under the mat on the passenger’s side, [...] which correlated with the number on the disk. The bakkie had a cover where he found a pump which is used to pump diesel from one vehicle to another. He contacted Mr Kruger from Westbank who confirmed that there were illegal transactions done at a garage in Setlagole. The owner of the Setlagole garage also confirmed that the vehicle was involved in fraudulent transactions at the garage and she was opening a case at the police station. He took Lephoro and the vehicle to Vryburg.

[20] Thereafter he went to the garage at Setlagole where he met Kriegler and Meyer who showed him the video clips. From the video clips it was the same vehicle doing the transaction and it was the same vehicle from the previous occasion which was returned to plaintiff, but with a different trailer. On his return to the police station, he found that the false number plate had been removed. The police officer on duty informed him that plaintiff was there and took photographs of the vehicle. When he searched the vehicle he found bank deposit slips and the keys for a room at a Lodge. They received permission from the owner of the Lodge to enter the room to look for evidence. Lephoro was arrested. The next morning he went to the station where he found a tow truck vehicle next to the vehicle and plaintiff was screaming at him and threatening to take his vehicle. All the property found at the Lodge including plaintiff’s ID was entered in the SAP13. The next day plaintiff laid a charge of theft of R40 000.00 from his room. The case was declared nolle prosequi. On the 23 May 2014, Lephoro was found guilty and sentenced to approximately 5 years imprisonment.

[21] Under cross examination he was questioned why he said the Nissan bakkie was irregularly handed back to plaintiff. He replied that the vehicle was handed back to plaintiff by a member of Organised Crime, Captain Bogotile. Captain Bogotile received money from plaintiff which money was deposited into his account. Bogotile and another officer were found guilty of taking bribes.

[22] The next witness was Roelof Johannes Herbst (Herbst), a member of the SAP at Delareyville for 26 years. He applied before the 19 October 2012 for plaintiff’s warrant of arrest. He referred to his affidavit dated 8 October 2012 in support of the warrant of arrest, J50 in the case of Delareyville 46/05/12, committed on 5 May 2012 Besiesvlei CAS 8/05/12, committed on 10 May 2012. He explained that the top half of the warrant is signed by the public prosecutor after receiving his application for a warrant to the magistrate. The bottom part is the actual warrant which is issued by the magistrate. The magistrate signed on the 19 October 2012. This warrant was in respect of the offence committed on the 10 May 2012.

[23] He was asked to explain that the warrant is dated 19 October 2012 but the prosecutor’s date stamp is 19 October 2007. He replied that this was probably an administrative error as the offence was committed in 2012. He said after the warrant was issued, it was booked in the docket in part A3 for the investigating officer to enforce. Initially he was the investigating officer and he applied for the warrant but he was ill for a long time and it was transferred to Galetlhobogwe. In respect of the line that ran across the page, he explained that after the accused is arrested with the warrant, the magistrate draws a line across it which signifies that the warrant was executed and should not be executed again. He said both the Besiesvlei and Delareyville cases are running concurrently and are with the DPP.

[24] Under cross examination he conceded that the warrant only refers to CAS 46/05/12, the Delareyville case and the inscription of the date when the  offence was committed, namely 10 May 2012 refers to the Biesiesvlei case. He replied that both dockets for the Delareyville and Biesiesvelei were inside one another and it was an administrative fault. It was the prosecutor Mr Lottering’s fault.

[25] He deposed to an affidavit wherein he stated that he was the investigating officer for two fraud cases, namely Delareyville CAS 46/05/12 and Biesiesvlei CAS 08/05/2012 committed on the 5 May 2012 and 10 May 2012. In both cases the suspect was driving a golden brown BMW with registration number [...] and paid for 1400 litres of diesel with a cloned card belonging to a client of Wesbank. The vehicle is registered in plaintiff’s name. Plaintiff’s address was visited several times but he could not be found. A J50 warrant of arrest was needed to arrest the suspect. He said he acted on Jeanette statement when he went to Court to issue the warrant of arrest. The registration on the golden BMW was false. The correct registration [...] which he used to apply for the warrant was used at Vermaas on the 10 May. Registration number [...] was a false registration in the Biesiesvlei case. They had footage of the vehicle with registration number [...].

[26] He was referred to the investigation diary where it was noted that on the 29 August 2013, Jeanette Moleme failed to identify plaintiff. He replied that even though he was not identified it did not mean that he was not involved as it was the same vehicle with the same modus operandi in Biesiesvlei and Delareyville and in Biesiesvlei the registration of the gold BMW was not false. He said in Delareyville, the CCTV camera only shows the vehicle and not the face of the person and Jeanette was not able to identify the person at the parade. The complainant in Bieseisvlei could identify the person. Both the Delareyville and Biesiesvlei cases are running concurrently but plaintiff was charged with the Delareyville case. He said plaintiff’s case was not withdrawn but struck from the roll as the investigation was not finalised.

[27] Under cross examination he admitted that plaintiff was arrested for the Delareyville case. He was questioned why he didn’t state in his statement that the BMW had a false registration. He replied that in his statement he used the correct registration number to get the plaintiff’s details. When he wrote the statement he didn’t think of putting the false registration number as it was not relevant because it belonged to an innocent person.

[28] The next witness was Tebogo Joseph Galetlhobogwe. He is a member of the SAP for 9 years. He said on the 13 August 2013, he was the investigating officer and was in possession of a warrant of arrest for plaintiff. On the 13 August 2013, he and Officer Lekgae went to Hartebeesfontein with the warrant of arrest which he identified in the discovered documents. At Hartbeesfontein Court, the prosecutor confirmed that plaintiff was on the list of persons to appear. He and Lekgae waited in the unmarked police vehicle, Nissan Hardbody. While waiting, a gentleman appeared and asked them if they are police officers from Delareyville. He introduced himself as the plaintiff. They introduced themselves as police officers from Delareyville and produced the J50 warrant of arrest and said they were there to arrest him as he was a suspect in a case that was opened. He confirmed his name and identity number and explained his constitutional right to him. Plaintiff said he wanted to leave his vehicle in Hartebeesfontein Township. They followed him to the township where he left the keys to his vehicle. On their way to Delareyville, plaintiff told them he is a businessman and build RDP houses and can’t they leave him and talk. He told him that they were not interested. He drove to Delareyville where plaintiff was charged and detained. Plaintiff was taken to Court on the same day of his arrest. He said the line that appears across the warrant is drawn by the magistrate and means that the person was arrested. He denied that when they arrested plaintiff they showed him a photograph. He said they only had the warrant of arrest. He confirmed that the warrant was issued on the 19 October 2012 and executed on the 13 August 2013 and they arrested plaintiff as his name appears on the warrant.

[29] Under cross examination, he said he was not in possession of the docket when he arrested plaintiff, only the J50. The docket was in his office. He denied that plaintiff asked him for a copy of the warrant and he was unable to produce it. He further denied showing plaintiff footage (photo). He bore no knowledge to any photographs in the bundle of documents. He said there was a previous investigating officer who because of ill health could not continue. As the first investigating officer couldn’t finish the case, the docket was closed and it went to the docket store and the photographs were already compiled according to the A8. When he arrested plaintiff, it was his second day on the case and he did not peruse the docket. When he went to arrest plaintiff, his commander was opening the docket from the docket store. Previously he didn’t physically have the docket, he only looked in the system. He admitted that he didn’t say in his arresting statement that he showed plaintiff the warrant. The statement states that he was in possession of a warrant of arrest. He said plaintiff and Legae could confirm that he showed plaintiff the warrant.

[30] Itumeleng Legae, an officer in the SAP for 14 years testified that on the 13 August 2012, Galetlhobogwe asked him to accompany him to Hartebeesfontein to execute a warrant of arrest. He was in possession of a J50. At Hartebeesfontein they met a prosecutor who confirmed that plaintiff was to appear in Court. They returned to their vehicle where a man approached and asked them if they are police officers from Delareyville. He identified himself as the plaintiff. Galetlhobogwe informed him that a warrant for his arrest was issued against him. Galetlhobogwe showed him the J50 and explained his rights which include, rights to an attorney, right to remain silent etc. Plaintiff said he wanted to leave his vehicle at the Hartebeesfontein location. They followed him there where he left his vehicle. On the way plaintiff asked to talk and said he was building houses in Alexandra. They did not entertain him. In Delareyville, Galetlhobogogwe wrote the notice of rights and detained plaintiff.

D.        SUBMISSIONS

[31] Counsel for plaintiff Mr Strydom, in respect of Claim 1 and Claim 2 said inter alia the following:

31.1      The two vehicles in claim 1 were taken into possession by the police without a warrant of seizure in terms of Section 20 of Criminal Procedure Act (CPA). Despite plaintiff giving the police, proof of ownership of the vehicles, they unlawfully refused or neglected to hand over the particular Nissan bakkie and trailer to plaintiff. The criminal case against Lephoro was completed on the 23^rd of May 2014, which is not in dispute.

31.2      After Erasmus confiscated the bakkie and trailer in March 2012, plaintiff requested the return of the vehicles, but the police refused saying that they want to use it as evidence. The Nissan bakkie and the trailer were not used as evidence in the criminal case against Lephoro. There is no documentation that these items were handed into the Court as exhibits and there was no Order of Court directing that the vehicle and two trailers should be handed back to plaintiff.

31.3      Plaintiff is entitled to reimbursement. The police could have used Section 30 and Section 31 to return the two trailers and the Nissan bakkie to plaintiff. They maliciously refused to do so and they never used these article as exhibits in the case against Lephoro, in spite of the request from plaintiff himself and/or his attorney.

31.4      The defendant also had the opportunity to dispose of the vehicles in terms of Section 34 of the CPA. Where circumstances so require the presiding officer may order the release of the article to the owner, even before the case has been disposed of in terms of Section 34(1) and (6). This type of application will succeed when the article is no longer needed at the trial by either party to the proceedings.

31.5      The mere fact that the two trailers and the Nissan bakkie were handed back to the plaintiff undoubtly prove the fact that he was not implicated in the crime committed by Lephoro and that the Nissan bakkie and two trailers were held unlawfully by the police, whereas they could have handed it back to the plaintiff. If the defendant needed the vehicle and two trailers, certain conditions should have applied to have it available during Lephoro’s trial.

[32] Mr Strydom with regard to claim 3 said the following;

32.1      Plaintiff alleges that he was arrested without a warrant of arrest, whilst the defendant pleaded that he was arrested with a warrant of arrest. Galetlhobogwe stated that he showed the warrant of arrest to the plaintiff, whereas he is contradicted by Legae, who stated that he showed plaintiff the warrant of arrest.

32.2      Both Legae and Galetlhobogwe testified that they did not take the docket with them. Hence they did not know what was going on in the docket, and therefore they could not form a reasonable suspicion of whether plaintiff should be arrested or not, and that they only acted as agents of Herbst.

32.3      Defendant didn’t call Jeanette Moleme who made the only sworn statement in an effort to connect plaintiff with the alleged crime in case 46/05/2012. She is also the person who could testify that at the particular garage there was a CCTV and she had the opportunity to identify the person on the photo. An identification parade was held, and she failed to identify plaintiff.

32.4      Herbst made a false affidavit when he applied for a warrant of arrest. In his evidence, he said he was the investigating officer and he identified plaintiff’s vehicle as a gold brown BMW with registration number [...]. Jeanette Moleme, in her sworn statement said, that the registration number of the BMW is [...]. The only reasonable inference for this discrepancy, is that Herbst evidence, and his affidavit, is intentionally false. There is no evidence in the docket that the witness saw the vehicle with registration number [...]. The police already knew that the vehicles which were used in Vryburg, were registered in plaintiff’s name and therefore it was easy for Herbst to make a false statement that the vehicle that Moleme saw, was a gold brown BMW with registration number [...] and not [...].

32.5      On probabilities, it is clear that when plaintiff was arrested, the warrant of arrest was not shown to him after he requested it, and he was only shown the CCTV footage. Section 39(2) of the CPA, Act 51 of 1977, depends on circumstances of each case. The facts in the present case are that Legae and Galetlhobogwe, did not comply with the requirements in terms of Section 39(2) of the CPA. Further they acted as agents of Herbst and by their own evidence could not have formed a discretion whether there was a reliable suspicion that plaintiff committed a crime as alleged in the warrant of arrest, because they did not have any insight into the docket as such and under the circumstances could not have formed a discretion with regard to this suspicion. A police official who arrests, must himself have a reasonable suspicion. In this case the police officials did not know whether a crime was committed by plaintiff, and they only arrested as agents for somebody else. 

32.6      Herbst’s suspicion was, irrational and based on falsified facts concerning the registration number of the BMW. He already, prior to plaintiff’s arrest, formed the suspicion which is not based on objective facts. The only facts he had was the CCTV footage and the sworn statement Moleme and neither of them could identify the plaintiff.  Herbst’s discretion as well as the two other police officials were exercised irregularly because relevant considerations were ignored and decision to arrest was in fact irrational.

[33] Counsel for the defendant, Mr Mmolawa submitted inter alia that on the evidence tendered by the defendant in respect of claim 2, the police were justified in impounding plaintiff’s bakkie and trailer as they were being used for unlawful purpose in that Moitoi and Lephoro were arrested on 24 and 28 November 2011 respectively for fraud committed at Barnard’s garage where plaintiff’s bakkie and trailer were used to obtain fuel/diesel by means of counterfeit/”cloned” fuel cards. The bakkie and the trailer were seized, impounded/confiscated by the police on 24 November 2011 as they had been used in the commission of fraudulent activity. Moitoi and Lephoro were charged with fraud.

[34] In respect of claim 1, Mr Mmolawa submitted inter alia that Plaintiff’s vehicle was again seized on 21 March 2012 by Erasmus, this time being driven by Lephoro. It was impounded for having being used to obtain diesel once more by means of counterfeit fuel cards at Setlagole garage. Lephoro used plaintiff’s vehicle with a different trailer to obtain diesel fraudulently at Setlagole garage on 15 March 2012 and on 17 March 2012 respectively. He was charged with the offence of fraud, convicted on 23 May 2014 and sentenced to five (5) years imprisonment.

[35] Mr. Mmolawa further submitted that:

35.1    On the facts presented to the Court, the police were not expected to do more than what they did. The police were not expected to obtain seizure warrants before they impounded them. It is not in each and every case that a seizure warrant should first be obtained before the article used in the commission of the offence be seized, impounded or confiscated. On the totality of all the facts before this Court, the police were justified to act as they did in terms of the provisions of Section 20 and 22 of the Criminal Procedure Act 51 of 1977.

35.2    When Lephoro saw Erasmus turning and driving towards him, he drove away from where he had parked the vehicle in an effort to run away. In order to stop him, Erasmus put his blue lights on and sounded the siren. This conduct is consistent with that of a person who knew that the police were looking for him as he was committing offences. It would have been naïve and absurd to expect Erasmus under those circumstances to have obtained seizure warrant first.

[36] Under claim 3, Mr Mmolawa submitted the following:

36.1    Under this claim, plaintiff’s case is simply that he was arrested on 13 August 2013 at Hartebeesfontein court without a warrant of arrest.

36.2    It has never been the plaintiff’s case that his arrest with a warrant was unlawful. This appears for the first time in his heads of argument as an alternative argument that if it is found that he was arrested with a warrant, his arrest must be declared unlawful. Plaintiff cannot be heard to say he was arrested without a warrant, and at the same time somersaults to say that if his arrest was effected by means of a warrant, then his arrest was unlawful. Plaintiff cannot have his cake and it too.

36.3    Herbst evidence was simply that he applied for the warrant of arrest as plaintiff bought diesel fraudulently at two different garages in Delareyville and Biesiesvlei. Plaintiff drove a golden BMW using false registration number, being [...] whilst the correct registration number [...] was used at Biesiesvlei garage. He said the reason that necessitated the issuing of the warrant of arrest was due to the fact that even though they knew plaintiff’s address, that address was visited several times by the investigating officers and by Legae and Galetlhobogwe and plaintiff was never found at the address. Legae and Galetlhobogwe, corroborated each other in all material respects concerning what happened on 13 August 2013.

E.         ISSUES FOR DETERMINATION

[37] The issues for determination are the following:

37.1     In claims 1 and 2, whether plaintiff’s Nissan bakkie and the two trailers were lawfully seized or impounded by the police.

37.2     In claim 3, whether plaintiff was arrested with or without a warrant.

F.         THE LAW

[38] Section 20 of the CPA 51 of 1977 (the Act) provides as follows:

“20      State may seize certain articles

The State may, in accordance with the provisions of this chapter, seize anything (in this chapter referred to as an article)

a)       which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

b)       which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or

c)       which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.”

[39] Section 20 contains the general power of the State to seize certain articles in order to obtain evidence for the institution of a prosecution or the consideration of instituting such prosecution. Section 20 is very wide and intended to assist the police in their investigations of a criminal case. An article may only be seized under section 20 by virtue of a warrant issued in terms of section 21 with the exception provided in subsection 22, 24 and 25. Section 24 and 25 are not applicable as they relate to the search of premises and the power of the police to enter premises.

[40] Section 22 of the Act provides as follows:

“22      Circumstances in which article may be seized without search warrant.

A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20.

a)       if the person concerned consents to such search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or

b)       if he on reasonable grounds believes:-

(i)       that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he applies for such warrant; and

(ii)       that the delay in obtaining such warrant would defeat the object of the search”.

[41] In some instances it is necessary to search and seize immediately or urgently and the procedure of obtaining a warrant on information on oath will defeat the object of the search. Section 22 makes the search and seizure without a warrant lawful under certain circumstances.

[42] Section 30 of the Act: Disposal by police official of articles after seizure. This section makes provision for articles specifically perishable goods and stolen property seized under section 20 to be dealt with in a specific way by the police official who seized the article.

[43] Section 31 of the Act: Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings.

Under section 31, an applicant is entitled to the return of goods and the onus is on the state to prove on a balance of probabilities that the possession is unlawful. Cloonara v Minister of Law and Order 1992(1) SACR 239 (W).  

[44] Section 33: Articles to be transferred for purposes of trial:

“(1)      If criminal proceedings are instituted in connection with any article referred to in Section 30(c) and such article is required at the trial for the purposes of evidence or for the purposes of an order of Court, the police official charged with the investigation shall, subject to the provisions of subsection (2) of this section, deliver such article to the clerk of the Court where such criminal proceedings are instituted.

(2)        If it is by reason of the nature, bulk or value of the article in question impracticable or undesirable that the article should be delivered to the clerk of the Court in terms of subsection (1), the clerk of the court may require the police official in charge of the investigation to retain the article in police custody or in such other custody as may be determined in terms of Section 30(c).

[45] Section 34: Disposal of articles after commencement of criminal proceedings:

“(1)      The Judge or Judicial Officer presiding at criminal proceedings shall at the conclusion of such proceedings, but subject to the provisions of this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in Section 33.

(a)       be returned to the person from whom it was seized, if such person may lawfully possess such article; or

(b)       if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

(c)       if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

[46] The ambit of the protection provided under Section 22 has to be interpreted with reference to the Constitution of the Republic of South Africa, 1996 (the Constitution). The right not to have ones property searched and ones possessions seized is part and parcel of the right to privacy in terms of Section 14(b) and (c)  of the Constitution.

[47] In Magobodi v Minister of Safety and Security and Another 2009(1) SACR 355 (TK) the Court held that it had a constitutional duty to critically regard search and seizure and to ensure that such actions were reasonable and justifiable in the cricumstances.

[48] In S v Mayekiso en ander 1996(2) SACR 298(C) it was decided that a policeman’s belief in terms of Section 20(b) that the magistrate would grant him a search warrant must be based on reasonable grounds. The exercise of such belief is to be judged objectively on all the facts before the Court and the onus rests on the state to prove that reasonable grounds existed at the time when the police acted without a search warrant.

[49] Whether the suspicion or belief in terms of section 20 was reasonable or whether reasonable grounds required in Section 22(b) were present is an objective question which will be answered on all the facts before the Court. Ndabeni v Minister of Law and Order and Another 1984(3) SA 500D. The official will have to show that reasonable grounds existed at the times when he decided to act without a warrant.

[50] In Mbutuma v The MEC for Safety and Security of the Eastern Province 1998(1) SACR 367 (TDK) the Court held that where vehicles were seized in terms of Section 22(b) and where such vehicles were seized after an inspection revealed that the engine and chassis numbers were falsified, the fact that the numbers were tampered with constituted grounds for a reasonable belief that the motor vehicle had been stolen and such vehicle afforded evidence of the commission of theft.

[51] Once it appears that an article seized under Section 20 and as envisaged under Section 30(C) is not to be used at a future trial it must be returned to the person from whom it was seized. Ndabeni v Minister of Law and Order and Another supra.

[52] In Tsiane v Minister of Safety and Security and Another 2004(1) SACR 470(T) there was an application under Section 22 for the return of a vehicle by the owner, which was not in his possession at the time it was seized. The Court held that the initial seizure, although it took place upon reasonable grounds that the vehicle was stolen, took place three years ago and the three years lapsed without criminal proceedings relating to the vehicle being brought. The situation was held to be unjustifiable and it was ordered that the vehicle be returned to the applicant.

[53] In Choonara v Minister of Law and Order 1992(1) SACR 239(W), Kuper AJ held that Section 31 had to be read as an adjunct to Section 20 and that both Sections were aimed at facilitating the investigation and proof of some offence with which the article confiscated was connected, but that the state had to act with reasonable expedition in instituting criminal proceedings. Where time taken to investigate had become so extended as to constitute an act oppressive of the rights of the applicant without offering any real prospect of further advance by the state in the investigation and where the respondent had not shown that the applicant could legally possess the vehicle, it had to be returned to him.

G.        EVALUATION

[54] The common cause facts in claim 2 are the following:    

54.1    Moitoi and Lephoro were arrested on 24 and 28 November 2011 respectively for fraud committed at Barnard’s garage where plaintiff’s bakkie and trailer were used to obtain fuel/diesel by means of counterfeit/”cloned” fuel cards.

54.2    The fraud was committed on 13 October 2011 and 18 October 2011 respectively.

54.3    Moitoi and Lephoro were charged with fraud.

54.4    The bakkie and the trailer were registered in plaintiff’s name.

54.5    Plaintiff’s bakkie and the trailer were seized by the police on 24 November 2011 as they had been used in the commission of fraudulent activity.

54.6    Plaintiff’s bakkie was returned on the 4 January 2012.

58.7      Plaintiff’s trailer was returned with the other vehicles that were seized in claim on the 20 June 2014.

[55] Bloem and Erasmus were in my view credible witnesses. They corroborated each other’s evidence in material respects as set out more fully herein below:

(a)     On the 24 November 2011, plaintiff’s vehicle was observed at a taxi rank in Vryburg. Bernard of Engen garage contacted them and informed them that the vehicle was possibly involved in fraud of diesel as Mr van der Merwe of Westbank told him to look out for the vehicle.

(b)     Bernard handed Erasmus a photograph of the vehicle with a trailer which he said was given to him by Westbank who are investigating fraud of diesel.

(c)      The Nissan bakkie’s registration number was [...] and the trailer was [...]. Bloem tested the registration number and found that it belonged to plaintiff. On checking the bakkie, he realized that the licence disc on the vehicle differed from the registration number on the vehicle. According to Bloem, the registration number on the licence disc was NW whilst the one on the bakkie was GP.

(d)     The driver of the vehicle, Moitoi, initially claimed not to have had anything to do with the vehicle. He further said he had been given a lift by the owner of the vehicle. However when he was searched, he was found in possession of the keys to the vehicle which they were able to start.

(e)      On searching the vehicle, Erasmus said he found many petrol receipts, cash slips and deposit slips. In a bag under the passenger’s seat he found five loose registration number plates, three of which bore registration numbers [...] and the other two number plates bearing registration numbers [...]. He also found a plastic money bag which contained two Nedbank petrol cards, and plaintiff’s ID and appointment card. He said some of the deposit slips showed money having been deposited into Moitoi’s account.

(f)       Erasmus said the people from Nedbank arrived and said the cards were fraudulent and those cards were involved in two transactions where diesel was fraudulently stolen.

(g)     Moitoi was arrested and the vehicle and trailer were confiscated and handed to SAP 13.

(h)      Erasmus under cross examination also said the Nissan Bakkie was irregularly handed back to plaintiff in January 2012 by Captain Bogotile who received money from plaintiff which money was deposited into his account. Bogotile and another officer were found guilty of taking bribes.

[56] When considering the common cause facts as well as the evidence of Bloem and Erasmus supra, then I am of the view that the seizure of plaintiff’s trailer was reasonable and justifiable and that reasonable grounds existed to seize the trailer without the warrant.

[57] In respect of Claim 1, the following are objective facts:

57.1    Within two months after plaintiff’s vehicle was returned to him, it was again used in the commission of fraudulent activity. Plaintiff’s vehicle was again seized on the 21 March 2012 by Erasmus, driven by Lephoro.

57.2    Erasmus testified that the registration number on the back of the Nissan was [...] which was different to that on the licence disk. It was a false number plate. When he searched the vehicle he found another number plate [...] which correlated to the one on the disk. At the back of the bakkie there was a pump which is used to pump diesel from one vehicle to another.

57.3    Erasmus contacted Mr Kruger of Westbank who confirmed that there were illegal transactions done at the service station in Setlagole. The owner of the service station confirmed this. He took Lephoro and the vehicle to Vryburg police station.

57.4    Thereafter Erasmus went to the Setlagole service staion where the owner showed him the video clip where he observed the same vehicle that was involved in the illegal transaction.

57.5    On his return to the police station, he found the false number plate on the Nissan bakkie had been removed and he was informed that plaintiff was there and took photographs of the vehicle.

57.6      Plaintiff’s vehicle and trailer was impounded as it was used to obtain diesel by means of counterfeit fuel cards at Setlagole garage. Lephoro used this vehicle with a different trailer to obtain diesel fraudulently at Setlagole garage on 15 March 2012 and on 17 March 2012 respectively. He was charged with the offence of fraud and convicted on 23 May 2014 and sentenced to five (5) years imprisonment.

57.7      Plaintiff conceded under cross examination that his vehicles were used to fill diesel fraudulently at Vryburg, Setlagole, Delareyville, Biesievlei and another one at Roodepoort on 31 October 2011, then driven by one Fatana.

57.8    Plaintiff and his attorney were informed that his vehicles would be returned when the case against Lephoro was finalised.

57.9    The case against Lephoro was finalised on the 23 May 2014 and the vehicle and trailers returned to plaintiff on the 20 June 2014.

[58] As stated supra, Erasmus was in my view a credible witness whose evidence was not contradicted in any material respect under cross-examination. Plaintiff on the other hand was a poor witness who did not make a good impression on the court. He was evasive under cross examination and gave long answers to questions posed in cross examination that were difficult to understand. Frequently he blamed his attorneys when confronted with questions that he could not answer. There were several loose threads to plaintiff’s evidence that did not tie together which include the following:

58.1    Plaintiff alleged that he leased his Nissan Hard body and the trailer to Lephoro in 2011 but he was unable to produce the written lease agreement.

58.2    Plaintiff knew that Lephoro was arrested for fraud involving his vehicle in 2011 but he hired his vehicle again to Lephoro two months later.

58.3    Plaintiff was questioned why the lease agreement concluded in March 2012 between him and Lephoro in respect of the Nissan vehicle did not include the trailer. Plaintiff initially did not answer the question and after the questioned was posed again, plaintiff replied that he leased the trailer in February 2012 in terms of a written agreement and Lephoro may have requested plaintiff to extend the lease of the trailer. Plaintiff was not certain.

58.4      Plaintiff initially testified that Lephoro drove the vehicle in 2011 and he didn’t know Moitoi. Under cross-examination he admitted that he knew Moitoi and admitted that Moitoi was with Lephoro in the vehicle when he was arrested in 2011. He was shown the docket and it was put to him that Moitoi and Lephoro were arrested for fraudulent activities on the 13 and 18 October 2011. He said this was outside his knowledge.

58.5    There was no reasonable explanation why plaintiff’s ID and appointment card were found in a money bag in plaintiff’s vehicle which vehicle plaintiff had hired to Lephoro and was driven by Moitoi in 2011.

58.6    There was no explanation why the keys to the Lodge where he was staying was found in his vehicle in 2012 which vehicle he had leased to Lephoro.

58.7    The suspicious circumstances surrounding the false number plate being removed from plaintiff’s vehicle when plaintiff was in the vicinity taking photographs.

58.8    Plaintiff was unable to produce any bank statements to prove that monies received from ’Old Oil Man’ were paid out to people who hired his vehicles and who delivered used oil to ‘Old Oil Man’.

[59] When plaintiff’s vehicles were seized on 24 November 2011 and 21 March 2012, his vehicles had already been used in the commission of the offences at Vryburg on the 13 and 18 October 2011 and at Setlagole on 15 and 17 March 2012 respectively. Erasmus testified that after he had seized the bakkie and the trailer from Lephoro, he booked them in the SAPS 113 register. He was acting in terms of Section 33 of the Act as they were required at the trial for the purpose of evidence. In terms of Section 34, the vehicles were returned to plaintiff at the conclusion of Lephoro’s trial, on 20 June 2014. Lephoro was convicted and sentenced on 23 May 2014.

[60] The fact that plaintiff’s vehicles and trailers were not used in the criminal case does not detract from the reasonableness of the seizure. Further plaintiff’s vehicle and trailer were released to him after Lephoro’s criminal case was finalised as expressed to both plaintiff and his legal representative by the police officer after it was seized. Accordingly reasonable grounds were present that justified Erasmus seizing the vehicle and trailer without a warrant in terms of the provisions of Section 20 and 22 of the Criminal Procedure Act 51 of 1977 as they were used for fraudulent purpose or activities.

[61] Under Claim 3, plaintiff’s case is that he was arrested on 13 August 2013 at Hartebeesfontein court without a warrant of arrest. Therefore the issue for determination is whether plaintiff was arrested without a warrant or not. I agree with counsel for the defendant that it was not pleaded in the alternative that if plaintiff was arrested with a warrant then it must be declared unlawful as the police officer did not form a discretion that plaintiff committed the crime referred to in the warrant of arrest. Plaintiff also did not apply to amend his particulars of claim. Accordingly this issue is not considered herein.

[62] Herbst applied for plaintiffs’ warrant of arrest as plaintiff allegedly bought diesel fraudulently at two different garages in Delareyville on 5 May 2012 and at Biesiesvlei on 10 May 2012. He said the reason that necessitated the issuing of the warrant of arrest was due to the fact that even though they knew plaintiff’s address, that address was visited several times by the investigating officers and by Legae and Galetlhobogwe and plaintiff was never found at that address.

[63] Herbst testified that plaintiff drove a golden brown BMW when he filled diesel at Delareyville and Biesiesvlei. At Delareyville garage, his vehicle used a false registration number, being [...] while the correct registration number [...] was used in his vehicle at Biesiesvlei garage. The correct registration number revealed that plaintiff was the owner of the vehicle. Plaintiff’s registration number appeared on the disk in the Delareyville case and it was the same registration number on the vehicle in the Biesiesvlei case. Herbst was a good witness who didn’t contradict his evidence and was in my view a credible witness. He provided a reasonable explanation why he used plaintiff’s registration number to apply for a warrant as he could not use a false registration number that belonged to an innocent person. Further he conceded that the date, 10 May 2012 was wrongly inserted in the warrant in relation to Delareyville CAS 46/05/2012. He attributed this mistake to the prosecutor who inserted the 10 May 2012 in the warrant due to the fact that the dockets for both cases at the time he applied for the warrant were running concurrently. He further acknowledged that the date of the prosecutor’s date stamp was incorrect and this was an administrative error. This error can be gleaned from the common cause facts that the incident only occurred in 2012. This court accepts the explanation proferred by Herbst.

[64] Legae and Galetlhobogwe corroborated each other’s evidence in all material respects concerning the events that occurred on 13 August 2013. I am of the view that they were reliable and credible. They spoke honestly and confidently and did not contradict each other. Mr Strydom submitted that they contradicted each other in that Galetlhobogwe said he showed plaintiff the warrant while Legae said he was the one who showed plaintiff the warrant. The fact is they were together when the warrant was shown to plaintiff. 

[65] It is improbable that Legae and Galetlhobogwe would both arrest a wrong person who was identified in a photograph, which person coincidentally turned out to be the plaintiff. The probabilities are that they arrested plaintiff because he confirmed his names and identity number as appeared on the warrant. Further there is no evidence to prove that plaintiff Legae and Galetlhobogwe acted as agents of Herbst. This was also not pleaded as is not plaintiff’s case.

[66] Both Legae and Galetlhobogwe testified that after Plaintiff was arrested he wanted to talk to them and told them that he is a businessman so they would leave him. The probabilities are that plaintiff attempted to engage in discussion with Legae and Galetlhobogwe in an attempt to persuade them not to arrest him. One can infer that he mentioned his businesses in an attempt to bribe them. This behaviour is consistent with the evidence of Erasmus who said plaintiff paid Captain Bogotile to release his vehicle.

[67] Plaintiff sought to rely on technicalities to challenge the warrant of arrest, which was not the plaintiff’s case. Plaintiff’s case was that he was arrested without a warrant. The technicalities that plaintiff sought to rely on include inter alia that:

(1)            The line drawn across the warrant. A reasonable explanation was provided that the magistrate draws the line after the warrant is executed.

(2)            The incorrect date that appears on the warrant. This is clearly an administrative fault as it is not disputed that the crimes were committed in 2012.

(3)            The fact that Herbst used plaintiff’s registration number to issue the warrant of arrest. Herbst provided a reasonable explanation why he used plaintiff’s registration number. It is not disputed that plaintiff’s correct registration number appeared on the disk and that the registration plate was false.

[68] Furthermore defendant’s version that plaintiff’s vehicle was used to fill diesel in Delareyville and Biesiesvlei is more probable because of the following: 

68.1    On both occasions a golden brown BMW vehicle was used. Plaintiff is the driver of a golden BMW.

68.2    At Biesiesvlei the BMW had a false registration number and the correct registration number which correlated with the disc was found under the seat of the vehicle. This registration number was registered in plaintiff’s name.

68.3    In Delareyville, the golden brown BMW used to fill diesel fraudulenty had the correct number plate which was registered in plaintiff’s name.

[69] When considering the evidence in totality, then I am of the view that plaintiff was arrested on the 13 August 2013 in terms of a valid warrant of arrest.

ORDER

[70] In the result,

1.      Plaintiff’s claims 1, 2 and 3 are dismissed with costs.

________________

N. GUTTA

JUDGE OF THE HIGH COURT

 

APPEARANCES

 

DATE OF HEARING                                        :  23 OCTOBER 2017

DATE OF JUDGMENT                                    : 07 DECEMBER 2017

ADVOCATE FOR PLAINTIFF                          : ADV STRYDOM

ADVOCATE FOR DEFENDANT                     : ADV MMOLAWA

 

ATTORNEYS FOR APPLICANT                       :  VAN ROOYEN TLHAPI WESSELS INC

                                                                           (Instructed by: Abel Bester Inc.)

                                                                          

ATTORNEYS FOR RESPONDENT                   :  STATE ATTORNEY

                                                                        

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