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IN THE NORTH WEST HIGH COURT

MAHIKENG

CASE NO.: 1047/14

In the matter between:

SAMUEL KOLOI SELEBOGO                                                                                  Plaintiff

and

THE MINISTER OF POLICE                                                                                Defendant

CIVIL MATTER

 

DATE OF HEARING            :        10 - 12/10/2016

DATE OF JUDGMENT        :        10 February 2017

FOR THE PLAINTIFF         :        Adv. W.A.F. Strydom

FOR THE DEFENDANT      :        Adv. L Tyatya

 

JUDGMENT

 

KGOELE J:

[1] This is an action whereby plaintiff claims damages for the unlawful arrest and detention from the 15^th September 2013 until the 13^th June 2014.  The damages claimed amount to R3 166 948-13 calculated as follows:- R3 000 000-00 for general damages; R90 000-00 for loss of income and R76 948-13 in respect of legal costs.

[2] The defendant pleaded that the arrest and detention which occurred without a warrant of arrest was lawful in terms of section 40(1)(g) of Act 51 of 1977 (CPA) as amended, and further that the plaintiff’s detention after his first appearance in Court was at the instance of the Court and therefore the defendant is not liable for the damages as a result of his further detention.

[3] The defendant called four witnesses in order to prove that the arrest and detention was lawful.  The plaintiff was the only witness that testified in his case.

[4] From the whole evidence that was led in Court the following facts are not in dispute:- That on the 13^th September 2013 there was an auction in Vryburg at which eight (8) stolen goats were identified, by the owner, a certain Mr. Pholoholo, who immediately phoned the Stock Theft Unit Police Lieutenant Colonel Galehose (Galehose), who was a Captain at that time and a Group Commander in the Stock Theft Unit responded to the call and went to the scene of the alleged crime. Galehose met the caller who introduced himself as Mr. Pholoholo who gave him information that whilst at the auction he identified 8 goats that were part of the 30 goats stolen from him on the 29^th August 2013. Mr Pholoholo then pointed out a gentleman by the name of Mr Modiba who brought the goats, intending to sell them at the auction.   Galehose called for a back-up. He was later joined by Warrant–Officer Moimang (Moimang) and Constable Gababoe (Gababoe), who were part of the Stock Theft Unit.   Mr Modiba gave the three police officers information that he bought the goats from the plaintiff. He gave them a document acknowledging that he purchased the goats from Mr Selebogo, ‘the plaintiff’, who in turn signed the document. This document was in terms of section 6 and 8 of the Stock Theft Act.

[5] As a result Mr Pholoholo lodged a formal complaint of stock theft in respect of the 30 goats he lost having identified the 8 goats found at the auction. A police docket was registered and opened. Gababoe was allocated the docket for investigation.   Mr Pholoholo and Modiba gave the police their sworn statements. The section 6 and 8 certificate formed part of the contents of the docket.  On the 15^th September 2013 the three police-officers who on the 13^th went to the auction visited Pomfret where the transaction took place as a follow-up to the information at their disposal. They again met Mr Modiba. He pointed out Mr Elias Sithole as having been present when the goats were delivered. Mr Sithole was interviewed. Mr Modiba showed them where plaintiff could be found. Plaintiff was confronted with the information. Plaintiff agreed that he sold Mr Modiba some goats. Plaintiff was taken to the police pound at Vryburg to see the goats and on seeing the goats impounded at the auction, indicated that they were not the ones he sold to Mr Modiba. He said the goats at the Police pound had a different mark to his. Plaintiff denied having signed the document that Mr Modiba produced at the auction. Plaintiff made a sworn statement about the incident.

[6] On the 15^th plaintiff’s was arrested without a warrant by the three police officers mentioned above, acting within the course and scope of their employment, having been pointed out by one Mr Modiba as a seller of goats found at an auction in Vryburg  and detained in Vryburg. On the 17^th September 2013 plaintiff was brought before Court for his first appearance where the matter was postponed for a bail application. Two bail applications were brought which the Court refused ordering that plaintiff be kept in custody.  He was later released on bail at his bail appeal hearing in this Court.   It is also common cause that plaintiff had four (4) previous convictions and two pending cases for which he was out on bail at the time of his arrest.  Plaintiff was staying in Morokweng and also at Pomfret where the transaction took place.

[7] The issues for determination by this Court were therefore whether the defendant were justified based on reasonable grounds in arresting the plaintiff in terms of section 40 (1) (g) of the CPA and whether his further detention was unlawful.

[8] The evidence that is relevant for the justification by the defendant for the arrest of the plaintiff can be summarised as follows:-Lieutenant-Colonel Galehose testified that he is a Lieutenant Colonel stationed at Vryburg Stock Theft Unit and at the time of this incident he was occupying a rank of Captain.  Mr Modiba on being questioned about the goats gave the police information that he bought the eight alleged stolen goats on the 31^st August 2013 from one Mr Simon Selebogo.  When asked for proof, he produced a signed document as proof and also that he knew his goats by way of earmarks. After Galehose was given the document he inspected it and saw that the transaction pertained to 10 Boerbokke goats whose tattoo number was KCS. He further went on to testify that tattoos are used for small stock and a brand-mark for large stock. He realized as he was inspecting the goats that there was nowhere where the letters KCS was tattooed. It only appeared on the section 6 and 8 certificate. This certificate was written by Mr Modiba and signed by Mr Selebogo at the bottom.  The alleged stolen goats were booked in at the Police livestock pound for safekeeping and further investigations, given the fact that only 8 out of 30 stolen goats were found. Twenty two (22) goats were still missing. A police docket was opened and sworn statements taken from Mr Pholoholo and Mr Modiba.  Mr Selebogo acknowledged that he sold Mr Modiba some goats.  On the basis of his acknowledgement of having sold goats to Mr Modiba, Mr Selebogo was arrested.  He further mentioned that although he read him the Constitutional rights when they were in Pomfret, he did not arrest him at that moment, but Moimang and Constable Gababoe are the ones that arrested him as they are the Officers who left with him. He lastly testified that Mr Selebogo agreed to go with them to Vryburg to identify the impounded goats.

[9] Mr Obakeng Moimang’s evidence is as follows:- He confirmed the fact that during September 2013 he was a Warrant Officer within the South African Police Services stationed in Vryburg stock theft division.  On Sunday the 15^th the witness was one of the three officers who went to Pomfret. When they got there Mr Modiba showed them where Mr Selebogo could be found. Mr Selebogo on being asked about the goats he agreed selling Mr Modiba some goats. He then requested to see the goats that the police had impounded.  They then took Mr Selebogo in their double-cab vehicle back to Vryburg. The witness testified that when they left with Mr Selebogo to Vryburg, the latter was according to him under arrest, particularly in that his Constitutional rights were read out to him by Captain Galehose. The witness testified that Gababoe was the investigating officer. Information at their disposal at the time was that Mr Selebogo had four previous convictions against him and two pending cases of stock theft for which he was out on bail at the time of the commission of the offence in relation to Mr Pholoholo’s goats.  He testified that plaintiff was shown the goats in the presence of Mr Modiba. Mr Modiba stuck to his version that the 8 goats found in his possession were the ones he bought from Mr Selebogo. On the other hand Mr Selebogo was denying that those were the goats he sold to Mr Modiba. They then decided to detain him.  The reasons they decided to arrest and detain him was that; Mr Modiba was a school teacher , a Principal, he was a speculator buying and selling goats and Mr Selebogo did sell some goats to him.

[10] During cross-examination he disputed plaintiff’s Counsel’s contention that the plaintiff was not convicted and the cases pending were minor cases. He indicated further that even if he has not been convicted since 2006, he had a record of conviction and pending cases of stock theft.  The legal representative persisted that the goats were tattooed KCS, and the ones that were found at the auction did not have the tattoo KCS on them. Mr Moimang responded by saying that all they wanted to know was whether Mr Selebogo sold goats to Mr Modiba or not.

[11] Constable Gababoe basically corroborated the evidence of the two previous witnesses about what happened from the auction until they went to the plaintiff.  He further added that Mr Modiba was requested to be present when the goats were shown to the plaintiff. On arrival at the stock theft unit where goats were kept, plaintiff was shown the goats and he denied that those were the goats he sold to Mr Modiba, saying that the goats he sold had a tattoo.  The information that they received was that Mr Modiba completed a document which he did not sign. On the 15^th the same day the police went to take him from Pomfret.  Mr Selebogo made a statement under oath .In the statement he denied the allegations against him. The reason being that the goats he sold to Mr Modiba were not the ones the police were showing him. He then concluded his statement by saying that he did not sign a transaction document (Section 6 and 8 Certificate). Gababoe testified that they were not satisfied about the explanation he gave to them and they decided to arrest and detain him for further investigations. Particularly because 30 goats were stolen from Mr Pholoholo and 8 were recovered, which resulted to the fact that 22 were still missing. In addition Mr Pholoholo said that he had a ram that fathered some of the goats found at the auction .The results of the DNA test proved that the goats found at the auction were indeed some of Mr Phologolo stolen goats.  He testified that plaintiff was detained on the 15^th and appeared in Court on the 17^th September 2013. The case was postponed by Court for a formal bail application. The witness confirmed that Mr Selebogo had several previous convictions and two pending cases of stock theft at the time of his arrest.

[12] On being told during cross-examination that Mr Selebogo is the person who signed the section 6 and 8 certificate and that at no stage did he deny having signed it, his response was that what was written in his statement is what he was told.  He repeated that the plaintiff denied having signed that certificate when he was asked.

[13] Advocate Strydom further told him that plaintiff’s version would be that the tattoo KCS is on the left ear of each goat. The witness insisted that according to Mr Modiba and Eddie Sithole, the goats found on the 13^th were the ones sold by Mr Selebogo. The witness continued his answer by saying that the coincidence was striking that the goats were stolen from Mr Pholoholo on the 29^th August 2013 and two days thereafter some goats were sold to Mr Modiba by the plaintiff.

[14] The witness was asked why he didn’t produce the section 6 and 8 certificate during the bail application, which would have indicated that the marks on the certificate were not found on the goats.  He responded by saying that the contents of the docket were given to State-Prosecutor.  He thus had all the statements and the certificate in his possession. He testified further that he did bring the discrepancy of the marks in the section 6 and 8 certificate to the State Prosecutor. He extended his explanation by saying that in bail application a witness respond to questions asked by the prosecutor and one also testify about previous convictions and pending cases which are more relevant in bail applications.

[15] Tumediso Eddie Sithole testified that he came to know Mr Modiba as a teacher at his school since September 2013 at Pomfret. Mr Modiba was buying and selling stock.  According to him he was in the company of Mr Modiba when plaintiff came and sold 10 goats to him.  He testified that he helped to off load the goats before he left.  According to him there were no other goats in the kraal due to the fact that Mr Modiba ran out of stock.  This is contrary to his witness statement where he said that "when Sam brought the goats some goats were already at the kraal of Mr Modiba".  Once again no description of the goats bought from plaintiff was given by this witness in either his written statement or in Court.

[16] During cross examination he confirmed the fact that he did not see the goats found at the auction and that he did not identify the goats.  He did not identified the goats as being the same goats that were sold to Modiba by the plaintiff.  He testified that they counted the goats when they were off loaded which is contrary to his witness statement.   He further conceded that he cannot say that the goats that were sold by plaintiff to Modiba were the same goats as the ones found at the auction.  In his statement he referred to the fact that on the 9 September 2013 goats were loaded by Mr Twala.  When asked about this, he indicated that Mr Twala is the business partner of Mr Modiba who is residing in Gauteng.  When he was asked which goats were loaded he denied the fact that it could have been the goats sold by plaintiff although there was no basis for him to dispute the fact that it could not have been the goats sold by plaintiff as he did not see which goats were loaded.

[17] Mr Selebogo, the plaintiff, testified that he did sell 10 goats to Modiba.  That his goats were tattooed KSC and that he showed Modiba the tattoo marks on the ears of the goats when he sold these goats.  He also showed him his registration document and that Modiba completed the Section 6 and 8 Certificate.  He sold the goats for R5 050-00 and Modiba told him that he was going to take the goats to Gauteng which fact is also reflected in the Section 6 and 8 Certificate.  According to him his tattoo mark is KSC and not KCS.

[18] He further testified that Modiba inspected the goats and saw the tattoo mark on their ears.  Where-after he requested the brand- mark certificate and completed the Section 6 and 8 Certificate.  He testified that when the police came to him they asked him whether he had sold some goats to Modiba.  He confirmed that he had sold ten goats to him, and thereafter he was arrested.  He testified that he was taken to Vryburg where he saw the goats found in the possession of Modiba.  After seeing the said goats he told the police that they were not the ones that he sold to Modiba and that he did not know those goats.  The police officers replied by again saying that he was under arrest.  He also explained in detail the ear marks that were on his goats.  In this regard a sketch was handed in as exhibit A.

[19] He confirmed his signature on the Section 6 and 8 Certificate and testified that he had never denied that he signed the Certificate.  Further that the difference between his evidence and his warning statement was brought by the fact that most of the things contained therein were not correct and did not reflect what he told the police.  He lastly reiterated that the goats that were found in possession of Mr Modiba were not the ones he sold to him.

[20] During cross-examination plaintiff was asked what he would do if he was in the position of the SAPS members and whether it was necessary for someone to be arrested in a similar case.  Plaintiff replied that if the Section 6 and 8 document and the information regarding the stolen stock were the same he would be arrested.

[21] Advocate Strydom submitted on behalf of plaintiff that plaintiff was a reliable witness and that his evidence should be accepted.  Further that during cross-examination it was never put to the plaintiff that:

· there was a reasonable cause to suspect him of stealing the goats of the complainant; or 

· that the stolen goats found in the possession of Modiba at the auction kraal were the same goats sold by him to Modiba.

According to him it is clear that there was no basis for the arresting officer (whoever that might be) to have had a reasonable cause of suspecting the plaintiff that he was in possession of suspected stolen stock.

[22]In as far as the issue relating to the detention of the plaintiff is concerned, he submitted that the plaintiff's detention from 4 October 2013 (when the first bail application was made) until 13 June 2014 was unlawful.  On this aspect he relied heavily on the remarks found in page 161 paragraph 4, of the record of proceeding regarding the bail Appeal where the Honourable Judge said the following:-

"It is quite surprising that the police found Mr Modiba in possession of stolen stock.  It was not even suspected stolen because now they know that the owner of these goats is such and such a person.  The police did give Mr Modiba a chance to go and fetch this particular document.  He comes with a document which does not support him that he had bought the goats from the accused.  How does it not support him?  He gives a description which does not fit these goats.  The police leave this man and they go to arrest the accused and the accused's defense is very simple and straight-forward.   These are not the goats I sold to you.  Proof thereof is this document he gave me, a copy of which you have.  Mine had a tattoo KCS.  Those goats do not have this tattoo".

[23] He emphasised the fact that during the bail applications in the Magistrate Court it was made clear that the defence of the plaintiff was that the goats found in the possession of Modiba at the auction kraal were not the same goats which the plaintiff sold to Modiba.  Notwithstanding this fact Gababoe never testified during the bail application that there was a discrepancy regarding the Section 6 and 8 Certificate and the goats found in Modiba's possession.  He submitted that by virtue of this omission the plaintiff’s detention from 4 October 2013 until 13 June 2014 was unlawful in that the Court was not placed with all the facts before it made its decision.

[24] The plea of the defendant was based on the defences contained in Section 40(1)(g) and 50(1) (a)(b) and (c) of the CPA.  Section 40 (1) (g) thereof provides that:-

“a peace officer may without a warrant arrest any person whom he 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”

[25] The jurisdictional requirements for a lawful arrest under section 40(1) (g) are trite and has been formulated as follows:-

52.1 That the arrest must be by a peace officer;

52.2 That the arrestor must entertain a suspicion;

52.3 40 (1) (g) the suspicion must be that the suspect was or has been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce.....;

52.4That the suspicion must rest on reasonable grounds.

See also the case of The Minister of Safety and Security v Sekhotho and Another 2011 (1)SACR 315 (SCA) (2011 (5) SA 367 , where Harms DP quoting the case of Duncan v Minister of Law and Order also referred to below stated:-

“For the purpose of paragraph (g) of section 40(1) the suspicion must be that the arrestee was or is in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce….The jurisdictional facts for the other paragraphs of section 40 (1) differ in some respect, but they are not germane for the present purposes”.

[26] As a result of the fact that the arrest and detention of the plaintiff was admitted by the defendants, the onus rested on them to prove that they were lawful.  The main issues before this Court were therefore whether:-

· The requirement relating to the reasonableness of the suspicion have been met;

· The further detention of the plaintiff was lawful.

[27] In the case of Minister of Safety and Security v Sekhotho quoted above it was held in paragraph 6 that:-

“The test whether a suspicion is reasonably entertained within the meaning of section 40(1) (b) is objective S v NeL and Another 1980 (4) SA 28 (E) AT 33H. Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that evaluating his information, a reasonable man would bear in mind that the section authorizes drastic police action. It authorizes an arrest on the strength of a suspicion and without a need to swear out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. The reasonable man will therefore analyze and asses the quality of the information at his disposal critically and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion not certainty. However the suspicion must be based on solid grounds. Otherwise it will be flighty or arbitrary and not reasonable suspicion”.

See also:  Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) AT 658E-H and S v Purcell –Gilpin 1971 (3) 548 (RA)

[28] In the case of National Commissioner of Police and Another v Coetzee 2013 SACR 358 (SCA) at para 14 the Appellate Division held that:-

“The arresting officer is not required to conduct a hearing before effecting an arrest. Whether an arrested person should be released and if so subject to what conditions arises for later decision by another person, and that is the safeguard to the arrestee’s constitutional rights.”

[29] In the case of R v Nkala and Another 1962 (1) SA 248 (SR) it was said that a peace officer wishing to rely on sub-section (1) (b) must show that he investigated the elements of the suspected crime, before a reasonable suspicion can be formed.

[30] In May v Union Government 1954 (3) SA 120 (N) 127 F it was held that there can be no reasonable suspicion unless the facts which are known, and those which are reasonably suspected, establish a crime.

[31] In Duncan v Minister of Law and Order 1986 (2) 805, the case of Shaaban Bin Hussein and Others v Chang Fook Kam and Another (1969) 3 All ER 1627 (PC) was quoted where the following was said:-

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; “I suspect but I cannot prove” Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end”

[32] In Duncan v Minister of Law and Order 1984 (3) SA 460 (T) at 465-6 it was held:-

“The uncertainty can also apply to whether it was the accused who committed or attempted to commit the crime.  It must furthermore be borne in mind that a suspicion can be reasonable even if there is insufficient evidence to establish a prima-facie case against the accused”.

[33] The evidence of all the police officers can in my view be relied upon.  Their evidence corroborated each other on material aspects of this matter.  There were contradictions in as far as who actually arrested the plaintiff.  In my view, these contradictions cannot on its own affect their credibility.   As it will be made clearer later in this judgment the contradictions are immaterial as the police officers were acting as a team.

[34] In our matter, the plaintiff did not dispute the fact that he sold some goats to Mr Modiba.  The police officers went to Mr Sithole who Mr Modiba claimed he was with when the goats were delivered by the plaintiff.  Mr Sithole confirmed that the goats that Modiba went to sell at the auction were those that were brought by the plaintiff although the police did not take him to the auction to identify them.    Although he was not a satisfactory witness as he contradicted his written statement, his evidence does not take the issue of whether the police had reasonable suspicion that an offence was committed any further.  What is important from the facts of this our matter is the fact that the goats that were found with Mr Modiba were all females, white in colour and Boerbokke and befits the description on the Section 6 and 8 Certificate.  The only difference was the tattoo “KCS” which also appears on the Certificate was not there.  It is clear that the police officers took efforts to verify what Mr Modiba was saying to them which were also reflected on the Section 6 and 8 Certificate before taking any action / steps.

[35] The police went further to look for the plaintiff with the aim of enquiring or verifying the averments Mr Modiba made to them where upon the plaintiff confirmed that he sold the goats to Mr Modiba.  It is clear that all of these efforts were done by the police officers to investigate the elements of the suspected crime.  The argument by the plaintiff’s Counsel that they went to plaintiff just to arrest him cannot hold water because the police officers’ evidence is to the effect that upon arrival at plaintiff’s place they started first by asking him about the goats and he admitted having sold them.  The police did not just after this explanation take the plaintiff from his place to the police station and detained him.  They requested him to accompany them to the police pound where the goats were kept with the aim of investigating the matter further so that the plaintiff can be able to see the said goats.  I may pause here to say that if the police officers were at that time having ulterior motives, they could have simply locked him / detained him straight from his place.  In addition, they called Mr Modiba again to be present when they showed the goats to plaintiff to get some form of explanations from the two in the presence of each other.  This is the time when the plaintiff started denying that the goats at the police pound were not the ones he sold to Mr Modiba because his were tattood and those were not.  It is also significant to indicate at this stage that the case docket had by then already been opened and an investigating officer allocated to it.  There is therefore no doubt that the matter was being investigated.  This is not a scenario where the police pounded on the plaintiff and arrested him without investigating the elements of the suspected crime.

[36] The submission by plaintiff’s Counsel that plaintiff was already arrested at the time they took him to the police station and further that the three police officers contradicted themselves as to who actually effected the arrest, cannot in my view assist the plaintiff’s case as well. It is indeed true that Moiemang testified that Galehose is the one that instructed them to arrest plaintiff for further investigation.  Galehose on the other hand said that the investigating officer Gababoe is the one who exercised a discretion to arrest and detain the plaintiff because Galehose did not accompany them to the police station.  Gababoe who was the investigating officer also testified that Galehose arrested the plaintiff and requested them to take him to Vryburg police pound to see the goats.  Although Galehose denied having arrested the plaintiff at the time they were at his place, he vividly said that he requested the two to take him to Vryburg as part of investigation.

[37] It is quite clear that a common threat runs along the evidence of these three police officers, that, they took the plaintiff at that particular time for investigation purposes after listening to what he told them.  What is even important is that all of them when asked during cross-examination they indicated that at that particular time they were justified to do that because of the investigation they did so far, (interviewing the complainant, Mr Modiba and his witness coupled with the plaintiff’s admission) and were still continuing with the said investigation.  Whether he was under arrest for investigations or just taken away for investigation at that particular time is in my view neither here nor there.  I am saying this because the actual detention took place after plaintiff and Mr Modiba met face to face and Mr Modiba insisted infront of the plaintiff that this is the goats that he had bought from him.  This is seen from the following evidence of Gababoe:-

“Because the goats that were sold were Boerebokke, females and white in colour and those that were found on Mr Modiba were same and Mr Eddie Sithole confirmed that they were the one that he loaded to be taken to the auction, we were satisfied that there was a suspicion that the goats were stolen, we then took him to the cells.  We did not believe him when he said that those were not the goals he sold to Modiba. [Own emphasis]

[38] In addition to the reasons he gave above he indicated further that they could not believe the explanation of the plaintiff because during his interview he said that the he sold red/brown and white coloured goats, which were not Boerbokke, when the Section 6 and 8 Certificate which had his signature on which they got from Mr Modiba on the other hand indicated that the goats were all white and were Boerbokke.  According to Gababoe, what made matters worse is that the plaintiff denied having signed the Section 6 and 8 Certificate when it was shown to him.

[39] There is another aspect of Gababoe’s evidence which is also important in this regards.  He testified that at that time they were satisfied that they did the right thing by arresting the plaintiff and detaining him and the purpose of detaining him was that the case was still under investigation because according to the complainant 30 of his goats were stolen and 22 were still missing.

[40] From all of the above, one can simply deduce that it does not come as a surprise that the three police officer did not actually agree who actually effected the arrest as they were working as a team.  That much came out of their evidence that Galehose was their Commander who was giving instructions to them and Gababoe was being mentored by Moeimang.  They all of them formed a suspicion that the plaintiff was at some point in possession of suspected stolen stock from their own-evidence.  Each one of them testified that they will have arrested the plaintiff under the circumstances as police officers.  Their evidence as shown above reveals that the investigations were ongoing from the first day they received a report up until the plaintiff was arrested and detained, and continued thereafter.  The submission that there is no police officer who specifically testified that he was the person who arrested the plaintiff and also on what basis the decision was made to arrest and/or on what reasonable cause did the arresting officer had reasons to believe that he had reasonable grounds to suspect the plaintiff of being or having been in possession of suspected stolen stock does not have merit at all as it puts form over substance.  In fact, the facts in this matter speak for themselves.  

[41] If one looks at the version of the plaintiff it leaves much to be desired.  Not only does the viva voce evidence contradict his written statement, but one cannot discern what his explanation is.  He admitted selling the goats to Modiba but denied that the goats that were at the police pound was the ones he sold to Modiba apparently because they were not having a “KCS” mark which was the same as his.  What is disturbing is that he does not produce his stock book or proof of how was his goats marked.  This proof was not produced during the bail hearing up to and including during this trial despite the fact that he was legally represented at all the times by an Advocate.  Unfortunately all of us including the police, do not know what his tattoo mark is.  Whether it is “KSC” or “KCS” as he on this issue also contradicted himself.  When shown the Section 6 and 8 Certificate he denied signing it in his written statement.  During his evidence in Court he again somersaulted and indicated that he never denied signing it, claiming that the police did not write the correct information regarding what he told them.  Other things that he denied in the statement were:-

· That he did not tell Gababoe that he sold 8 goats;

· That he sold them for R4000-00;

· That he did not say there were three females, and there was also a male one, white in colour.

In his vica voce evidence he said he sold 10 goats and for R5050-00.  What compounds the matter further is that he still repeated that he sold the “Setswana” goats which were red and white in colour which are not “Boerbokke”.  Although this is contained in his statement, the problem is that the section 6 and 8 Certificate that he admitted had been written Boerbokke, which were white in colour and all females.  On the other hand the goats that were at the police pound that are the subject of this matter were all Boerbokke, white in colour, and all females.

[42] My conclusion that one cannot discern what the explanation of the plaintiff is also borne out by the fact that page 109 of the record of the bail application reveals that his statement was never disputed at all.  Pages 117 and 118 of the same record reveal that this statement was also attached to the affidavit of the plaintiff to support his case in the bail application.  Pages 138 line 20 to page 139 the issue of him saying he did not sign the document comes up again.  In fact, the pages show that the same Counsel who is appearing today was using the same statement to argue for him to be released on bail and did so without any modification.  He was reading it into record in page 139.

[43] It is clear that the plaintiff’s credibility is questionable and he continuously built his explanation as and when he is confronted with new information implicating him.  No wonder the police officers did not find his explanation to be a reasonable one.  Part of this difficulty is the paucity of information which he gave during the interview by the police.  As a suspect, he was expected to place before the investigating officer as much relevant information possible to back / support his explanation.  A bare denial would not suffice and if he elected to place less before the police as he did, he should not expect the police to speculate in his favour.  But what he said with regard to the Section 6 and 8 Certificate that he did not sign it at the time the police interviewed him is crucial.  What counts most is what he said to the police at that time and not now during the trial.  Surely a reasonable man under the circumstances which the police found themselves will have formed a suspicion that something did not add up.  The plaintiff agreed selling the goats, when the goats are shown to him he denied that these are the goats he sold.  He also acknowledges the Section 6 and 8 Certificate which both of them agree that it was signed by Modiba, but denies having signed it to the police.  He does not produce this stock book as proof of his ear marks and the Certificate he used to sell these other goats that are not Boerbokke which he described in his warning statement.

[44] Much was said by the plaintiff’s Counsel about Mr Modiba not being called as a witness.  Unfortunately the truth of what happened between plaintiff and Modiba is known by the two of them.  But Mr Modiba’s explanation was at the least supported by the Section 6 and 8 Certificate to a greater extent and an eye witness, and this is the reason proffered by the police why they did not arrest him.  Whether Modiba was to be arrested too does not assist the plaintiff’s case.  The fact remains that plaintiff was reasonably suspected to have been in possession of the same goats previously and could not proffer a reasonable explanation from the facts of this case, which is an offence on its own and entitles the police to arrest him without a warrant.  It is noteworthy to mention that the police did some investigations just before they exercised the discretion to arrest and detain him, as indicated by Gababoe that they were still conducting further investigations which according to case law was justified.  Furthermore, Section 40(1)(b) requires suspicion not certainty.

[45] Criticisms were levelled against Mr Sithole, the eye witness of Modiba that he contradicted himself.   I fully agree that he was not a satisfactory witness.  But unlike the plaintiff, he was frank enough to admit his mistakes.  As indicated previously his evidence did not affect the evidence of the police officers who were the one to form a reasonable suspicion.  Their evidence alone stand uncontroverted.

[46] Furthermore, in the case of The Minister of Safety and Security v Sekhotho and Another 2011 (1) SACR 315 (A) the Appellate Court at paragraph 42 stated as follows;

“While it is clear that the power to arrest may be exercised only for the purpose of bringing the suspect to justice, the arrest is only one step in that process. Once an arrest has been effected, a peace officer must bring that arrestee before court as soon as reasonable possible and at least within 48 hours, depending on court hours. Once that has been done, the authority to detain, that is inherent in the power to arrest is exhausted. The authority to detain the suspect further is then within the discretion of the court.”

[47] Plaintiff was arrested on the 15^th September 2013 and brought before Court on the 17^th September 2013 whereupon his further detention was ordered by a Magistrate for his formal bail application.  It becomes apparent that there arises no issue of the plaintiff not having been brought to Court within the statutory period of 48 hours as provided for in section 50 of the CPA.

[48] Plaintiff’s further contention is that Annexure A, being the Section 6 and 8 Certificate which is the identification and removal certificate for the goats was not brought to the attention of the Court that heard the bail application by the investigating officer.  Advocate Strydom argued that the failure to bring this to the attention of the Court was solely responsible for the continued detention of the plaintiff by the Magistrate Court and the refusal of the two bail applications.  The undisputed evidence of Gababoe is that these documents were part of the docket that was brought to Court at the bail hearings.  The record of proceedings does not depict that Gababoe withheld this information as Counsel for the plaintiff puts it.  His answer to the fact that he did not mention it is that he was led by the prosecutor in what to testify about concentrating much on what needs to be proved in bail hearings.  This submission is ill-conceived because the plaintiff also had an obligation to tender evidence that favoured his case moreso because he was legally represented.  The record of the bail proceeding in the second bail application reveals that Advocate Strydom placed it on record that the contents of the docket were placed in his legal representation possession.  The record further reveals that the Court was alive to this certificate and the fact that Mr Modiba was not called to testify, or arrested.  The Court nevertheless still refused the application for bail for the second time.   The remarks by the Court that heard the Appeal in our Division which the plaintiff’s Counsel also heavily relied upon cannot assist the plaintiff as well.  I am saying this because it is on record that the accused had previous convictions. The record of the bail hearing at the Magistrate Court reveals that this fact contributed in the refusal of the bail application as it was also taken into consideration by the Court of first and second instances.  Page 143 line 20 and 25 of the bail proceeding are important in these regards.

[49] I have no hesitation to conclude that the police officers acted reasonably and justifiably in exercising the discretion of arresting the plaintiff. The arrest was rational and not arbitrary.  A complaint of stock theft was made with the Police. A Police docket was registered in Ganyesa, statements were taken from the owner of the goats Mr Pholoholo and witness Mr Modiba, the livestock speculator. The information was verified by way of independent facts such as the section 6 and 8 certificate and an eye witness. The goats were identified at an auction in Vryburg by the owner.  Mr Modiba pointed at the plaintiff as a person from whom he bought them. Mr Modiba produced a document bearing the plaintiff’s signature as proof that he is the person who sold him the goats. Furthermore, Mr Modiba indicated that he has an eye witness Mr Eddie Sithole , a former student at a school in which he taught who testified that Mr Modiba is a speculator in livestock having been working as a Principal in Pomfret.  The book in which he records his transactions was also produced as confirmation to the police.

[50] Although plaintiff had four previous convictions and pending cases of stock theft, the evidence before Court of these police officers reveal that this was not a reason why they arrested him.  The police were confronted with a bald and an unsubstantiated denial that the goats that were found were not the ones he sold.  Secondly they were also confronted with the fact that he did not sign any document though his signature appeared on the section 6 and 8 certificate. The statement by plaintiff was contemporaneous having been taken down when he was confronted with the prospect of arrest and detention.  At the time of the arrest it was not the duty of the police to be sure that indeed the plaintiff stole the said goats. A mere reasonable suspicion sufficed.  I am thus satisfied that the defendants discharged the onus rested on them that the arrest and detention were lawful.

[51] It is not necessary to deal with the quantum of damages as a result of the conclusion that I had reached above.

[52] Consequently the following order is made:-

52.1  The plaintiff’s claim is dismissed with costs.

 

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A M KGOELE

JUDGE OF THE HIGH COURT

 

ATTORNEYS:

FOR THE PLAINTIFF           :         Abel Bester Inc

                                                          C/O Nienaber & Wissing Attorney

                                                          10 Tillard Street

                                                          MAHIKENG

FOR THE DEFENDANT      :         STATE ATTORNEY

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