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Itaoleng v Attorney General (CACLB-061-07) [2008] BWCA 45 (25 July 2008)

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1.       INTRODUCTION

This is an appeal against the judgment of Lesetedi J sitting in the High Court at Lobatse in which he dismissed, with costs, the survivor of two claims brought by the appellant against the respondent, the effective respondent being the Commissioner of Police. The two claims contained in the appellant’s declaration were for defamation and for wrongful and unlawful arrest and detention. The claim for defamation, which from its inception was standing upon wobbly legs, collapsed during the course of the trial in the court a quo and was abandoned by the appellant. The appeal before us, is therefore confined to an assault upon the well reasoned judgment of Lesetedi J on the claim for unlawful arrest and detention.

2.       THE APPEAL

The appeal rested upon two principal pillars. First, that the court a quo “erred in finding that there were contradictions in the evidence of PW1 and PW2.” Particulars of the alleged contradictions are set out in the appellant’s heads of argument. But, in the light of the conclusion to which we have come, they need not be repeated here. Secondly, the appeal was supported upon the peristyle that the appellant’s legal rights were violated because he “was detained for a period exceeding forty-eight (48) hours exceeding the required normal period”, and further, that no reasonable basis existed for the suspicion, which the police allegedly entertained, that the appellant might have been involved in some unlawful manner with the disappearance of a person from his community in circumstances which led them to mount an investigation into the offence of murder.

3.       THE FACTS OF THE CASE

The facts of the case as found by Lesetedi J, which in our judgment he was correct in finding, are to be gleaned from the evidence given at he trial.

4.       From that evidence it is common cause that the appellant was a 55 year old farmer at the time of these happenings who raised livestock including cattle and goats. He is the occupier of a cattle post at Matlalo upon which there is a house which has no indoor toilet facilities. The appellant and his nephew resorted to a section of bush near the goat kraal where they relieved themselves. That spot was estimated by the nephew to be about 100 meters from the appellant’s yard. But, as we shall see presently, the appellant’s evidence suggested that the distance was much greater than that.

5.       The plaintiff’s case, as determined by the trial judge, is that on Wednesday the 20^th day of November, 1997, a posse composed of police officers and members of the public, descended upon his cattle post at Matlalo which is situate at about 30 km from Middlepits and about 90 km from Tsabong. The police informed the appellant that they were investigating the disappearance of a person named Rufus and that, from information which they had received from various sources, they had developed the theory that Rufus, who it was alleged was last seen in the vicinity of the appellant’s cattle post, may have been murdered and buried somewhere. Moreover, said the police, they had received reports that an area of earth under a certain mokala tree situated about 100 metres from his house, had been disturbed giving the impression that something may have been buried there.

6.       The suspicions of the police would undoubtedly have been hightened by the appellant’s fishy response to their queries that several of his goats had been struck by lightening and that he had buried them at the particular spot which was of interest to the police. Common sense, coupled with prudent police practice, demanded that the disturbed area be examined in order to determine what lay beneath the disheveled earth under the mokala tree. The police officers on the spot, however, appeared to lack the authority to conduct what may very well have turned out to be the exhumation of human remains. They therefore had to await further instructions from their superiors.

7.       There is much judicial and academic writing about the meaning of the word “suspicions” as it is used in the context of its reasonableness as an element rendering an arrest lawful or unlawful. One passage which commends itself to emulation and acceptance, is to be found in the judgment of Lord Weir In Aphiri v The Attorney General 1 [2000] BLR 65 at p 68 E-F where he was considering the meaning of suspicion in the setting of section 28 (b) of the Criminal Procedure and Evidence Act, Cap. 08:02, in the phrase “reasonable grounds to suspect.” His authoritative and persuasive dictum reads:

“Suspicion, in my view, must be something more than idle speculation but is far short of a firm conviction that the person had committed the offence. “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.” Shabaan Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626 per Lord Delvin at p 1630C-D. But mere suspicion is not enough. Suspicion founded on instinct or guesswork will not do. The suspicion which forms itself in the mind of the officer must be based on grounds which are capable of explanation and can be said to be reasonable.”

8.       The suspicions of the police in the case before us was based, as the trial judge found, in his own words, on grounds which are capable of explanation and can be said to be reasonable. We are in full agreement with him.

9.       The requisite orders from higher up were not immediately forthcoming. So the police personnel decided, sensibly in my view, to preserve the status quo until they could get word from their senior officers. To this end, they did two things. First they established a camp of sorts near to the mokala tree from which they could maintain surveillance over the suspected burial site as well as the house in which the appellant stayed at the cattle post. This vantage point was no doubt down wind of the area of bush near the goat kraal. Secondly, the police requested that the appellant remain at the cattle post for the time being.

10.      It is common cause that the appellant was not formally arrested. He was not handcuffed. Indeed no physical resistant of any kind was placed upon the appellant. No police officer, or anyone else for that matter, laid hand upon him. Asked by the court where he was between Wednesday 10 a.m. and Friday morning at 4 o’clock, he answered generally “I was at Matlalo cattle post.” Apart from the yard, two houses, one where the appellant slept and one where his nephew slept, formed part of the cattle post complex.

11.      Extrapolating upon his imprecise answer “I was at the cattle post”, and painting the lily, the appellant swore that the police did not allow him to go anywhere saying that he was in their custody and that they were escorting him. He admitted not being handcuffed but claimed that the police told him that he should not go out of the household. Yet he admits, and this is confirmed by his nephew, that he went unaccompanied to the outdoor place of relief where he answered calls of nature. Neither uncle nor nephew testified about the police escorting the appellant from house to bush and back. Nor is there any evidence that the police stood over the appellant as he performed, though the nephew, whose evidence was charactirised by its vagueness, inventiveness and lack of precision, mentioned that the police were standing at a sand dune near the bush whenever the appellant went there for the purposes already described.

12.      One wonders how it came to pass that this nephew, whose story is that because of his uncle’s confinement, he was obliged to shoulder the burden alone of taking care of his uncle’s livestock and giving them water, presumably by taking them down to the river as both he and his uncle say the appellant had done on Wednesday the 20^th of November, could conveniently find himself on hand every time that his uncle felt the pangs of nature and headed for the bush in search of relief.

13.      It is worthy of note that the nephew says that the police told the appellant to remain in the yard on Thursday and not on Wednesday as the appellant testified. Also worthy of note is the testimony of the sole defence witness whose evidence is that while the police remained at their makeshift camp ensuring that the integrity of the burial site was preserved, and awaiting their instructions from Detective Superintendent Makocha about exhumation, the appellant “was moving around freely and sometimes he would go and water his livestock.” The appellant complained that the sole witness for the defence police officer Peter Malaetsa did not give any evidence about several material aspects of the controversy. It is true that the testimony of this witness was unsatisfactory in a number of respects. But the factual deficiencies in what he said and the lacunae in his narrative were amply compensated for in the evidence of the appellant himself and of his supporting witness who was his nephew. The trial judge rightly found that there were material contradictions in the evidence of these two witnesses for the appellant stemming no doubt from the avuncular relationship between them.