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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: 580/2015

In the matter between:

MARTINS BUTI MBYIYA                                                                       Plaintiff

And

MINISTER OF SAFETY AND SECURITY                                             Defendant

JUDGMENT

DJAJE J

Introduction

[1]        The Plaintiff in this matter is claiming for damages which allegedly arose as a result of unlawful arrest and detention by the members of the South African Police Services acting within their scope of employment with the Defendant. The Defendant pleaded that the arrest and detention were lawful as there was a suspicion that the Plaintiff committed an offence. As a result the Plaintiff was detained at the Itsoseng police station from 10 January 2015 until 12 January 2015. The matter proceeded on both merits and quantum.

Evidence for the Defendant

[2]        Mrs Sophia Mabote was a complainant in a case involving a missing horse. She testified that in 2013 she lost one of her five horses which had a brand mark of ‘RSL’ and an earmark on the left ear. It was a grey horse. During September 2014 she received information from one of her neighbours, Thabo and Selepe that her grey horse was seen at the farm of the Plaintiff after confirming her brand mark. In the first week of December in 2014 Selepe came to fetch her and they went to the Plaintiff’s farm. At the farm they informed Plaintiff that they were there to see him about the horses. Mrs Mabote recognised her grey horse amongst the horses that were on the Plaintiff’s farm. Plaintiff indicated that he bought the said grey horse from one Makasa/Sane and that it was his horse. The matter was reported to the police and on 10 January 2015 Warrant Officer Kgakgane went to the Plaintiff’s farm with Mrs Mabote. Plaintiff refused that the grey horse identified by Mrs Mabote as hers, should be loaded by the police. He explained to the police that the horse was his as he had bought it from Makasa/Sane and showed the police a document that he indeed bought the horse from Makasa.

[3]       According to Mrs Mabote, after the horse was loaded the Plaintiff informed Kgakgane that if the horse is taken he would rather be arrested. As the Plaintiff was not co-operative Mrs Mabote then decided to lay charges against him with Kgakgane. Plaintiff then came with a spade and took the soil underneath the tyres of the police vehicle and put it in a plastic bag. He then voluntarily got into the police vehicle and they all proceeded to the police station. In April 2015 she received her grey horse back from the police and at a later stage sold it. It was her evidence that she was able to recognise the horse with its brand mark of ‘RSL’.

[4]        Warrant officer Kgakgane was the arresting officer and confirmed that on 10 January 2015 he was at the Plaintiff’s farm with Mrs Mabote. He had received a call from Selepe about a horse belonging to Mrs Mabote at the Plaintiff’s farm and the Plaintiff was refusing to give the horse to its owner. Kgakgane was just requested by Selepe to assist as there were no charges laid at that point. Before going to the farm Kgakgane first went to Mrs Mabote to check her brand mark certificate and iron. He proceeded to the farm with his colleague in a truck. At the farm Mrs Mabote pointed out her horse to Kgakgane. Kgakgane inspected the horse and did find the brand mark that matches that of Mrs Mabote’s certificate and iron. Kgakgane then went onto his laptop to verify if indeed the said brand mark belongs to Mrs Mabote. The system revealed that the brand mark was indeed registered under Mrs Mabote. He explained to the Plaintiff and the Plaintiff informed him that the horse was bought from one Mr Sane.

[5]        Kgakgane inspected the document showed to him by the Plaintiff as proof of purchase. He then informed the Plaintiff that the said document was not a proper purchase document as it did not refer to a brand mark, there was no date of sale and no address of the seller. As such he could not accept that document as proof that the horse was bought from Sane. Kgakgane requested Plaintiff to allow Mrs Mabote to take the horse as no charges were laid at that point and Plaintiff refused. The Plaintiff argued with Kgakgane insisting that the horse was his. Plaintiff refused to co-operate and Mrs Mabote decided to open a case immediately. The Plaintiff insisted that if the horse is taken away he would rather be arrested. The Plaintiff’s rights were explained and he was arrested for unlawful possession of stock without a warrant of arrest.

[6]       At the police station the Plaintiff was detained for him to appear in court on Monday. The horse was taken to the pound to enable further investigations to be carried out. Kgakgane explained that the reason for arresting the Plaintiff was because he was refusing with an exhibit which would have disappeared if left in his care. The docket was taken to the prosecutor on 12 January 2015 and the prosecutor required more investigations to be done before the matter could be enrolled.

[7]        Kgakgane conducted investigations in the matter by visiting Mr Sane who allegedly sold the horse to the Plaintiff. Sane confirmed having sold the said horse to the Plaintiff but could not explain about the brand mark. The prosecutor in April 2015 then decided that the matter could not be prosecuted. At that time the Plaintiff had already been released on warning on 12 January 2015. Kgakgane testified that the prosecutor instructed him to release the horse to the person whose brand mark appears on it. The horse was then given to Mrs Mabote.

Evidence for the Plaintiff

[8]        The Plaintiff testified that the horse in issue arrived at his farm with other horses two years before Mrs Mabote enquired about it. According to the Plaintiff there are people who came to his farm looking for their horses but because they had no money to pay him they decided to pay him with some of their horses. One of those people was Mr Makhasa Sane who told Plaintiff that the grey horse was his. At that time the said horse had two brand marks on it but none of them was the one of Mrs Mabote as she identified it. Makhasa did not have money to pay the Plaintiff for the horse having been on his farm for over two years and decided that the Plaintiff should buy the horse from him and deduct his costs. Plaintiff testified that he paid Makhasa an amount of R250-00 for the said horse. Makhasa then gave Plaintiff a purchase letter that he sold the horse to him.

[9]        After sometime Mrs Mabote arrived at the Plaintiff’s farm with police officers enquiring about the grey horse. The horse was inspected and the brand mark on it was FC. Mrs Mabote left with the police after seeing the brand mark of FC. They all came back and informed Plaintiff that they went to verify the brand mark at the police station and it is not Mrs Mabote’s mark. They all left having advised Mrs Mabote to leave the horse alone as it was not hers. In January 2015 Mrs Mabote came back to the farm with Kgakgane, Selepe and Thabo. Mrs Mabote informed them that the grey horse was not hers but Kgakgane did not want to listen and loaded the horse on a truck together with other horses. According to the Plaintiff, Kgakgane did not want to listen to him and insisted that he was taking the horse despite Mrs Mabote telling him that the horse was not hers. Plaintiff gave Kgakgane the letter from Makhasa that he bought the horse but Kgakgane ignored it and arrested the Plaintiff for theft. He testified that Kgakgane forced him into the vehicle and he was taken to the police station and released on 12 January 2015 without having appeared in court.

[10]      The control prosecutor for Itsoseng Magistrates Court, Mr Motlhajwa testified that he received the docket from Kgakgane where the Plaintiff was a suspect. In his view there was no prima facie case against the Plaintiff as there was a statement that the horse suspected to be stolen was bought by the Plaintiff from somebody else. He then made a decision that the matter not be enrolled as there was no prima facie case against the suspect being the Plaintiff. He requested the police officer Kgakgane to obtain the statement of the person who sold the horse to the Plaintiff. During cross examination Motlhajwa conceded that the purchase letter from Mr Sane had no selling price, no brandmarks and no date of sale. However, despite the absence of such information he decided that there were two people involved in a sale and there were no prospects of success to prosecute the Plaintiff.

[11]      The Plaintiff’s wife, Mina Mbyiya confirmed that the grey horse was bought by her husband from Mr Sane for R250-00 and it had his earmarks.  She signed the purchase letter on behalf of the Plaintiff. According to her on the day of the arrest, Kgakgane did not obtain a statement from Mrs Mabote and he ignored the purchase letter shown to him by the Plaintiff. She corroborated the evidence of the Plaintiff that Mrs Mabote insisted that the horse was not hers in the presence of the police.

[12]      The Plaintiff called Mr Moses Morakile who is employed at the North West pound. He was on duty at the pound when Kgakgane brought the grey horse. The brand mark that he saw on the horse was FC. During cross examination he testified that he could not properly see 3 letters on the horse as it was late when the horse was brought in.

[13]      It is not disputed that the Plaintiff was in possession of the grey horse in this matter and was arrested and detained from 10 January 2015 to 12 January 2015. The issue to be determined is whether the arrest and detention were unlawful.

Submissions

[14]      In its plea the Defendant raised the defence of section 40 (1)(g) of the Criminal Procedure Act 51 of 1977 in contravention of section 2 read with section 6 of the Stock Theft Act 57 of 1959. In essence that the Plaintiff was in unlawful possession of stock as defined in the Stock Theft Act and was not able to give a satisfactory account of such possession. It is the Defendant’s case that Mrs Mabote clearly identified the grey horse as hers by its brand mark of ‘RSL’. This she did on two different occasions when she visited the Plaintiff’s farm with Selepe and then with the police. Kgakgane also identified the brand mark on the horse and verified in the identification system that it indeed belonged to Mrs Mabote.

[15]      The Defendant submitted that no reliance could be placed on the purchase letter provided by the Plaintiff as proof that the horse was bought from Mr Sane. The contents of the said document stated as follows in Setswana:

            “Ke le Rre Isaack Sane ke rekeseditse Rre Mbyiya Buti pitse e molora go setse R250, 00. (I Mr Isaack Sane sold to Mr Mbyiya Buti a grey horse the balance is R250, 00)

                                   I.D. No 560[…]

                                   Ke tsa ga Rre Sane Isaack.

                                  (That of Mr Sane Isaack)

                                  I.D No. 661[…]

                                  Ke tsa ga Rre Mbyiya Buti”

                                 That of Mr Mbyiya Buti)

[16]      The Defendant criticised the purchase letter for not having the full names of the seller and full address. Further that there was no purchase price stated, no brand marks or earmarks of the animal sold and importantly that there was no date of sale. The submission made was that this document does not comply with the provisions of section 6 of the Stock Theft Act. As a result after the Plaintiff refused to cooperate with the police and Mrs Mabote having opened a case of her missing horse, Kgakgane had no option but to arrest the Plaintiff without a warrant of arrest for unlawful possession of stock.

[17]      Mr Motlhajwa was criticised for not having applied his mind properly to the facts presented to him especially the letter which was purported to be a purchase agreement. The Defendant argued that the horse was rightfully returned to Mrs Mabote as it was positively identified by her and corroborated by Kgakgane. The evidence of Morakile was criticised in that he testified that he could not see the third letter properly as the horse was brought in late. Again that the Plaintiff could not give a satisfactory account of his possession of the said horse. The Defendant concluded that the Plaintiff failed to make a case based on a claim for unlawful arrest and detention.

[18]      In contention the Plaintiff argued that Kgakgane should have verified the status of the purchase letter with Mr Sane before effecting the arrest and only after that determination was done, then he would have exercised his discretion. As a result it is the Plaintiff’s case that the Defendant failed to show that the suspicion entertained by Kgakgane that the Plaintiff’s possession of the horse was unlawful, was objectively sustainable. Therefore arguing that the Defendant cannot raise the defence of section 40 (1) (g) of the Criminal Procedure Act. It was further argued that Kgakgane testified that had the Plaintiff cooperated and returned the horse to Mrs Mabote, he would not have arrested him. The argument was thus that the arrest of the Plaintiff was not done to bring him before court but to compel him to surrender the horse to Mrs Mabote. This then made Kgakgane guilty of misusing his powers as a police officer.

Law

[19]      Section 40 (1) (g) of the Criminal Procedure Act 51 of 1977 states that:

“40. Arrest by peace officer without warrant

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

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

[20]      Section 2 of the Stock Theft Act provides that:

“2 Failure to give satisfactory account of possession of stock or produce

Any person who is found in possession of stock or produce in regard to which there is reasonable suspicion that it had been stolen and is unable to give a satisfactory account of such possession shall be guilty of an offence.”

[21]      Lastly section 6 of the Stock Theft Act states:

“6 Document of identification to be furnished by person who disposes of stock

1.    Any person (including any auctioneer, agent or market master who sells, barters, gives or in any other manner disposes of any stock to any other person shall at the time of delivery to such other person of the stock so sold, bartered, given or disposed of, furnish such other person with a document (herein called a document of identification)-

(a)  Stating-

(i)            His full name and address and, if the stock was sold, bartered, given or disposed of on behalf of some other person, also the name and address of such other person;

(ii)          Such particulars in regard to such stock as may be required to be stated therein in terms of any regulation made under section sixteen;

(iii)         The full name and address of the person to whom the stock was sold, bartered, given or disposed of;

(iv)         The date on which the stock was sold, bartered, given or disposed of;

2.    ….

3.    ….

4.    ….

 

5.    Any person who-

 

(a)  Contravenes or fails to comply with any provision of section;

(b)  Fails to comply with any demand made under subsection (4); or

(c)  Wilfully makes any false statement in a document of identification,

Shall be guilty of an offence.”

[22]      The onus rests on a defendant to justify an arrest. See Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589 E-F.

[23]      In Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC) par 24, the court stated that:

“The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of liberty, whatever form it may have taken.”

Analysis

[24]      It is common cause that on 10 January 2015 the Plaintiff was found in possession of a grey horse at his farm. He was subsequently arrested as Mrs Mabote identified the said horse as belonging to her. The Plaintiff was detained and released from custody on 12 January 2015 without appearing in court. According to the Plaintiff the arrest was unlawful as the horse was bought from Mr Sane. On the other hand Mrs Mabote testified that she identified the horse with the brand mark ‘RSL” which is her registered brand mark. Kgakgane who was the arresting officer testified that indeed the brand mark on the said horse was ‘RSL’ which he verified from the identification system as that of Mrs Mabote. Mrs Mabote indicated that her horse went missing for two years and she was told by Selepe and Thabo that it was seen at the Plaintiff’s farm. She went to the farm and that is where she was able to identify her horse.

[25]     When the police attended at the farm there was no complaint or charges laid by Mrs Mabote of her missing horse. It was only when the Plaintiff refused to give the horse to her that she laid charges. As soon as the charges were laid the Plaintiff was then arrested for being in unlawful possession of stock. The Plaintiff gave an account of his possession which was found to be unsatisfactory. The basis for that conclusion was that there was no compliance with section 6 of the Stock Theft Act. The letter that was shown to Kgakgane as the purchase letter does not have the date of sale, purchase price, brand mark of the horse being sold and no address of the seller. Section 6 of the Stock Theft Act regards absence of such information as an offence committed. The section is applicable to ‘any person who sells’ to ensure that the document furnished to the buyer contains the information as stated in the section. At subsection 5 it is stated that any person who does not comply with the provisions of the section shall be guilty of an offence.

[26]      At the time the Plaintiff furnished the police with the purchase letter as proof of ownership, Kgakgane realised that there was no compliance with section 6 of the Stock Theft Act and disregarded the said letter. In essence this meant that the basis of the explanation by the Plaintiff was not satisfactory. Kgakgane could not accept that letter as proof that the horse was indeed bought from Mr Sane when there were no details as required by law. A closer look at the said letter does not give a full description of the horse sold to the Plaintiff. There are no identifying marks in the document to explain which horse is being sold to the Plaintiff. There are further no specifications about the price and how it would be paid. The Plaintiff explained that Mr Sane could not pay him the expenses of having the horse at his farm and that was the reason why the horse was sold to him. It has not been explained by the Plaintiff how much he spent on the said horse and how his expenses were calculated. All that stands in the letter is the balance of R250-00. The letter on its own does not provide sufficient proof that the horse was indeed bought from Mr Sane. To add more salt to the wound, Kgakgane testified that Mr Sane when showed the picture of the horse indicated that he did sell the horse to Plaintiff but was unable to give an explanation about the brand marks. The Plaintiff did not dispute this evidence or call Mr Sane to testify.

[27]      Kgakgane testified that faced with the situation on the day in question, and the explanation given by Plaintiff for possession of the horse being unsatisfactory, he had to exercise his discretion and arrest the Plaintiff. The argument by Plaintiff that Kgakgane after been given the letter should have investigated the matter first and not arrest the Plaintiff cannot stand. At the time the explanation was given it was found to be unsatisfactory. Kgakgane also testified that if he did not remove the horse from the Plaintiff’s farm on that day, there was a possibility that it would have disappeared.

[28]      Mrs Mabote testified that she went to the Plaintiff’s farm the first time with Selepe and Thabo. On that visit the Plaintiff did not show them the letter as proof that he bought the horse from Mr Sane. It was only when Kgakgane was present that the Plaintiff produced the letter. This is found to be a strange conduct by the Plaintiff if indeed the sale had taken place before Mrs Mabote arrived at the farm with Selepe and Thabo.

[29]      The Plaintiff insisted that the horse was his but he could not give the brand mark that was on the horse when it arrived at his farm. There was no evidence by the Plaintiff of his registered brand mark and whether the one of ‘FC’ was indeed his brand mark or that of Mr Sane. The only conclusion that can be drawn in this matter is that the horse did not belong to the Plaintiff as no satisfactory account of possession could be given. On the other hand there is the evidence of Mrs Mabote and Kgakgane that the brand mark on the horse was that of Mrs Mabote. There can be no weight attached to the evidence of Morakile because he indicated that he could not see the brand mark on the horse clearly as it was late when the horse was brought in at the pound.

[30]     Section 40(1) (g) of the Act requires that the arresting officer can arrest without a warrant if there is a reasonable suspicion that the suspect is in unlawful possession of stock. In this matter the Plaintiff was in possession of a horse which is defined as stock. The said horse was identified by Mrs Mabote as belonging to her. The Plaintiff was not able to give a satisfactory account of such possession. In the result Kgakgane in arresting the Plaintiff complied with the requirements of section 40 (1) (g) of the Act.

[31]      In assessing the evidence in its totality the arresting officer in this matter acted lawfully in arresting the Plaintiff and detaining him until his release. The Plaintiff’s claim for unlawful arrest and detention stands to be dismissed.

Costs

[32]      It is trite that costs follow the result and as the Plaintiff is unsuccessful he should be ordered to pay costs of suit.

Order

[33]     Consequently, the following order is made

1.    The Plaintiff’s claim is dismissed.

2.    The Plaintiff is ordered to pay the costs of suit.

_________________________

J T DJAJE

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING                           :  19, 20 & 21 AUGUST 2019

JUDGMENT RESERVED                  :    11 OCTOBER 2019   

DATE OF JUDGMENT                      :    05 DECEMBER 2019

COUNSEL FOR THE PLAINTIFF           ADV ZWIEGELAAR

COUNSEL FOR THE DEFENDANT  :    ADV. M. MMOLAWA

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