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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: 1743/2015

In the matter between:

SEABELO KENNETH SETLHARE                                              Plaintiff

And

MINISTER OF POLICE                                                                Defendant

CIVIL TRIAL

GURAJ

DATE OF HEARING                                 29 JANUARY 2020

DATE OF JUDGMENT                              07 MAY 2020

FOR THE PLAINTIFF                                ADV G.V MAREE

FOR THE DEFENDANT                            ADV P.M MAAKE

JUDGMENT

GURA J.

Introduction.

[1]              The plaintiff sued the defendant for unlawful  arrest  and detention by members of the South African Police Services. The defendant admitted that the arrest was without a warrant of arrest, hence, the onus to prove the legality of the arrest rested on the defendant. Three witnesses testified on behalf of the defendant being Mr. Andreas Modiri ("Modiri"), Sergeant  Santi  and  Sergeant Mokgatlhe. Only the plaintiff gave evidence.

Factual background.

[2]              What follows now is the evidence of Modiri. As at the time of this incident, Modiri wanted money to buy a vehicle from the plaintiff. He and the plaintiff ttren thought of a plan how they could raise for themselves money. They finally settled on this plan: they would falsely promise people work (employment)  at  the  Harmonie Kalkhout Mine at Kraaipan, upon payment of a certain amount. This means that anyone who had been promised employment,  would have to pay a certain amount of money. In this plan,  Modiri's  role was to recruit job seekers, take their personal particulars and collect' money from them. The plaintiff's role on the other hand would be to pretend to be the H.R officer at the mine. Once Modiri had recruited candidates, plaintiff would then phone these people to confirm the deal of employment. In the meantime, the two men (Modiri and the plaintiff) would share the stolen money.

[3]               It was on Saturday when Modiri went to one of their "clients", a Mr. Steve Ditire. The latter wanted employment at Harmonie mine. After Modiri had informed him of the scheme, he was interested and accordingly gave Modiri his identity numbers and R3 500.00 cash. Subsequent to that, on a Sunday, Ditire gave Modiri R3000.00 cash. Modiri then gave Ditire the plaintiff's number and Ditire called and talked to the plaintiff who masqueraded as a Harmonie mine HR officer. In fact, he (the plaintiff) told Ditire in that phone conversation that he was an HR officer at Kalkhout Harmonie mine. The total amount of money which Ditire had given them up to that stage was R6 500.00 .

[4]               On a separate date, 2 June 2015, Modiri and the plaintiff drove to Ditire's house. They travelled in the plaintiff's motor vehicle,  a Datsun 1400 bakkie. The reason for this visit was that  subsequent   to Modiri's visit there, Ditire had sent some identity numbers to the two (Modiri and plaintiff). These were identity numbers  of  people who also wanted to take part in this irregular employment scheme. Besides, they (Modiri and plaintiff) had already collected some money from other prospective employees, apart from Ditire.

[5]                When the two arrived at Ditire's house on 2 June 2015, the plaintiff parked the vehicle outside the premises. Modiri and the plaintiff then agreed that only the plaintiff would enter Ditire's house. The plaintiff remained inside the bakkie outside Ditire's yard.

[6]                After entering the house, Modiri asked Ditire where were the identity numbers which he (Ditire) had given him previously.  Ditire responded by saying they were in his hand. Modiri approached him  in order to take the said identity numbers. Suddenly,  Ditire got  hold of Modiri. He grabbed him from behind with both of his (Modiri) arms. He wanted his R6 500.00 back because the date on which he was supposed to start "working" at Harmonie mine had already passed, and the plaintiff's phone was off whenever Ditire called him.

[7]               Modiri confirmed that he and the plaintiff had just switched off their cell phones. He stated that the sim cards they had been using on their cell phones were not their original sim cards. What  they  did was to buy sim cards from the shop which is operated by a Bangladesh citizen. They then bought these sim cards and  they used them in their cell phones when deceiving people. What they finally did after taking money fraudulently from people, they took out the Bangla sim cards from their phones. They then put back  into their phones, their original sim cards. They bought these Bangla sim cards without giving the seller any form of identification or proof of residence for RICA purposes.

[8]               Back to Ditire's house. Some three people joined Ditire and they locked Modiri inside Ditire's garage. This is a garage, I think, which forms   part   of   the   house   at   Mr.   Ditire's   premises.  Later   two constables, Senti and Motheletsi, found him in that garage. The police warned him that he was under arrest and they asked him where was the HR officer. Just as he was about to answer, Ditire interjected and said the HR officer had fled in his 1400 bakkie. Modiri testified that it is true that when he was grabbed initially and apprehended by Ditire and three men, the "HR officer" (plaintiff) ran into his vehicle and drove off.

[9]                Modiri then told the police that the alleged HR officer is Kenneth Setlhare, and he had fled with his vehicle to Setlhwatlhwe. He told the police that he knew where the plaintiff stayed. He then told the police about the job they had promised Ditire and the R6 500.00 which they had taken from him. Finally, he told them that he knew how the police could get plaintiff. The police had already received his phone numbers which they then compared with the phone numbers of the HR officer which Ditire had. Modiri then phoned the plaintiff whilst he was still with the police and told him that he had managed to escape from Ditire's house. Modiri asked him to come and fetch him (Modiri). The plaintiff said he had no petrol whereupon Modiri managed to organize five liters of petrol for the plaintiff. The latter then told Modiri that he was coming.

[10]            The police with Modiri then met the plaintiff in front of Mrs. Molefe's shop. They stopped him. The police asked the plaintiff if he knew Modiri. He did not reply. Instead, plaintiff asked Modiri why should he involve him in this. Modiri told him that he (plaintiff) had left Ditire's premises running away and that is why he (Modiri) had been arrested for something he did not do. The plaintiff thereafter did not say anything to Modiri until at the police station.

[11]            Arriving at the police station, they were kept in the Community Service Centre (CSC). The plaintiff then started to threaten Modiri and insisted that he should absolve him (take him out) of this matter. Sonti reprimanded him.

[12]             Before this case which involves Ditire as the victim, Modiri and the plaintiff were involved in a similar matter where they had defrauded one Rama. In that matter, the current plaintiff's family advised them to pay back Rama's money.

[13]           Modiri and plaintiff were detained at Madibogo police cells. When they appeared in court, Ditire wanted his money back. Their attorney advised them (Modiri and plaintiff) to pay him back the money. Modiri's father then paid Ditire his R6 500.00  back.  Plaintiff promised to pay back the money to Modiri's father but he never kept his promise. After Ditire's money was refunded to him, the case against plaintiff and Modiri was withdrawn at Setlagole Court.

[14]           Under cross-examination, Modiri testified as follows: during May 2015, Modiri asked plaintiff if he did not have a motor car for sale. The latter confirmed that indeed he had a car for sale. As a result of those discussions Modiri paid R1000.00 to the plaintiff being part payment towards the purchase of this car. The two men then entered into a written agreement about the car sale. Modiri explained that in fact, the R1000.00 payment was for the injectors of this car. Up to now, Modiri testified, plaintiff never bought the said car injectors for which R1000.00 had already been paid. In the trial bundle No. 1, Modiri confirmed that the written agreement he referred to was the one which starts on page 4 of the trial bundle. It pertains to the sale of the Ford Escort car. He confirmed further that he is the one who wrote down this agreement. When he went to plaintiff's residence to fetch the Ford Escort, he found that it had no injectors. He then paid this R1000.00 to plaintiff to purchase the injectors with the understanding that the said R1000.00 would be reckoned as part of the purchase price of the car. Apart from the injectors, this car had no wheels also. It could also not start, it was just stationary. Plaintiff ended up owing Modiri R1000.00 because he never delivered the Ford Escort as agreed upon. Despite that, he refuses to refund Modiri of his R1000.00. Modiri  says  despite this, he is not angry with him (plaintiff).

[15]          Sergeant Sonti was the second witness. His evidence is to the effect that on 15 June 2015, whilst he was on patrol with Sergeant Motheletsi, they received a report from Setlagole Police Station that the community had apprehended Modiri. By then, they (the police) were already looking for Modiri in connection with two other cases. Indeed they found Modiri held by Ditire and community members. They arrested Modiri after Ditire had reported to them that he had taken R6000.00 from him. Sonti is not sure about the exact amount.

[16]           On the way to the police station, Modiri said he was not "working" alone in cheating people. He said he was working with Setlhare (plaintiff) to defraud people. He actually said they were working together to take money from people. He said they were promising people jobs upon payment of money. He was the one who would meet with the job seekers and collect money from them. Modiri told the police that the people would call the plaintiff who would then pretend to be an HR officer. Afterwards, the two of them would share the money. He had gone to Ditire's house with the plaintiff who subsequently fled the scene.

[17]           Ditire, who was also travelling with the police in the police car, told them that plaintiff was there also, outside his house waiting for Modiri and that the latter is the one who stealthily signaled him (plaintiff) to run away.

[18]        On their way to the police station, Modiri communicated with the plaintiff through the cell phone. The police then decided to go to plaintiff's house with Modiri. They proceeded to Setlhwatlhwe village. They came upon the plaintiff along the road. They asked him to go along with them to the police station to talk since Ditire did not want to open a case against them. They drove to the plaintiff's house where he left his motor vehicle. He then joined the police in their car and they drove to the police station.

[19]            At the police station it was Santi, Motheletsi, Ditire and his wife as well as Ditire's son or nephew. The two suspects, Modiri and the plaintiff were also present. In the presence of the plaintiff, Modiri said he was working with him in defrauding people. Plaintiff kept on threatening to assault Modiri asking him why did he involve him in this case. Plaintiff was actually denying any wrongdoing with Modiri.

[20]             Ditire then said he did not want to open a case, all he wanted  was  his money back. Further, Ditire and his son (or nephew) said they now recognize the voice of the plaintiff as that of the HR officer he spoke to over the phone.  Modiri took out R1 200.00 cash and gave   it to Ditire promising to withdraw the other money at a later stage. Apparently, they had taken R7 800.00 from Ditire. After  Ditire  and his son had said they recognized the plaintiff with is voice, he (plaintiff) became less hostile. As these people were still there, one Mr. Machabeng arrived, complaining to the police that Modiri had defrauded him. Machabeng told the police that whilst he was busy talking to Modiri, he talked to someone who pretended to be a supervisor at the mine. Ditire then decided to open a case and the two suspects were handed to the police at the CSC to be charged. Modiri's problem he said, was that plaintiff had taken more money compared to him yet at the end, he (Modiri) had to pay back the money alone.

[21]           The evidence which emerged under cross-examination of Sonti follows. Sonti wrote down his statement about one month after this incident of the arrest of the two suspects, Modiri and plaintiff. Sonti is the one who took down Ditire's statement on 2 June 2015, the day of arrest of the two suspects. Ditire's statement does not reflect that he (Ditire) had told the police that he had seen plaintiff outside his house and further it does not state that Ditire told the police it was actually Modiri who, stealthily, signaled plaintiff to run away from Ditire's premises. On page 8 of trial Bundle 1, Ditire, in his statement to the police, he never met plaintiff physically. Modiri did tell the police about the written agreement between him and plaintiff and he even showed Sonti this agreement.

[22]            Sergeant Mokgatlhe was the last witness for the defendant. On 2 June 2015 she was on duty at Setlagole Police Station at the CSC (charge office). Sonti brought four people to her and told her that the two of them were suspects and the other one was a complainant. Sonti told her: 'This gentleman is Mr. Ditire, he came to lay a charge of theft and fraud". He then said the other one (fourth person) was also opening a case of fraud. Constable Selepe opened the case where Mr. Machabeng was the complainant whilst Mokgatlhe  opened the one where Ditire was the victim.

[23]            After taking down Ditire's statement, Sonti showed her the two gentlemen, saying one of them was Mr. Setlhare and the other Mr. Modiri. At that stage, Ditire then said he recognized plaintiff with his voice because from time to time, they had talked together over the phone. Sergeant Mokgatlhe (by then a constable), explained to the two suspects that they were under arrest for theft and fraud. She deemed it essential to arrest them because they had committed a Schedule 1 offence. She also exercised her discretion to arrest them based on the allegations which were being made by Modiri. These are then all the reasons why she decided to arrest them. She explained their rights and thereafter each signed his Notice of Rights document.

[24]           Under cross-examination, Mokgatlhe said she never asked the plaintiff for his version. Later in her evidence however, she testified that she told the two suspects that if they had anything to say, they would do that in Court. She reiterated that she decided to arrest and detain plaintiff so that he could appear in court when he is needed; secondly, he was facing a charge of fraud and theft, being Schedule 1 offences. She concluded by saying again that she based her decision to arrest on the version of Modiri. In re-examination, because Adv. Maree for the plaintiff had cross-examined the witness on the Notice of Rights ' contents, Adv. Maake for the defence asked Mokgatlhe if she did show paragraph 3(a) of the Notice of Rights to the plaintiff. She confirmed. She then read the said paragraph 3(a) into the record and this document became exhibit "A" before Court. Paragraph 3(a) of the Notice of Rights reads:

" 3  As an arrested person for  alleged  commission  of  an  offence, you have the following rights:

(a)   you have the right to  remain  silent  and  anything  you  say  may be recorded and may be used as evidence against you. "

[25]           What follows is the plaintiff's account of these events. He was arrested on the 2nd and released on the 15th June 2015. He knows Modiri since the day they met at the filling station in Setlagole on 17 May 2015. Modiri was on his way to Sekgwakgwe  on that day and he asked for a lift from the plaintiff who was travelling in a Datsun 1400 bakkie. The plaintiff had just got a new job by then and he was supposed to start working at Black Rock mine, Kuruman, Northern Cape. During their trip, Modiri indicated that he wanted to buy a car whereupon the plaintiff told him that he had an old Ford Escort car which he was offering for sale for R10 000.00. He invited Modiri to come along to see the vehicle.

[26]           Indeed, Modiri did come to plaintiff's residence in the company of a lady. He was interested in buying the car. He paid a deposit of R1000.00 for it. An agreement in writing was then drafted by him (Modiri). This is the document on page 4 of the first trial bundle. The agreement was that if he was unable to pay the balance  in cash, then he would pay it by giving plaintiff three cattle or more. This sale agreement is dated 18 May 2015. This is the date of the sale agreement. As regards the car condition, it was just fine but it had few faults- it could not start and it had punctured wheels. The car would have been able to move but for the flat tyres. Modiri never came back to pay the balance of the purchase price. From 18 May 2015 up to 2 June 2015, there was no interaction between these two men (Modiri and plaintiff).

[27]           When plaintiff met Modiri for the first time on 2 June 2015, he (Modiri) was travelling with the police in a police van. On that occasion, it was now the second time in his life to meet Modiri. On the third time that plaintiff met Modiri was on the day of his arrest, 2 June 2015. On that date, Modiri phoned telling plaintiff that he had his money. He said he had all the balance which he owed. He then asked plaintiff to meet him half way from his (plaintiff's) home, a distance of about eight kilometers from plaintiff's residence. Plaintiff drove to the said place in order to collect Modiri. He drove past Mr. Molefe's shop, then an oncoming car from the front flicked its headlights to him. After he (plaintiff) had stopped, Modiri came to him; he came from a police van. The police car did not have any SAPS marks or colours. Its occupants were however detectives.

[28]            Constable Sonti (currently a Sergeant) instructed plaintiff to leave his car there. When asked why, Sonti told him they would talk at the police station. Upon plaintiff's request, he drove his bakkie and parked it at his residence . From there, he travelled with the police to the police station. Modiri and Ditire were also in the police vehicle but it was plaintiff's first time to see the latter. Modiri appeared to have been assaulted.

[29]           Sonti asked plaintiff where was Ditire's money. His response  was that he knew nothing about it. He (plaintiff) then told them about his agreement with Modiri, about the sale of his father's car to fV1odiri. The latter never gave plaintiff any  stolen  money,  either from Ditire or from anyone else.

[30]            After he was charged, plaintiff was detained in a dirty police cell at Setlagole Police Station. The towels were dirty and the cell itself had some faeces. The cell did not have a toilet. It was a roofless cell. The cell corner was smelling. He was kept there for three to four hours. He was later transferred to Madibogo Police Station and the total inmates in the cell there were fifteen. At times they did not have water in the cell which had an offensive smell. Plaintiff and Modiri were kept in different police cells.

[31]           At least there was a toilet in Madibogo police cell although there was no privacy when one uses the toilet, since there is no wall which divides the toilet with the other inmates. Again in this cell, at times there was no water and the toilet smell would be unbearable. The plaintiff was allocated no blankets in the cell except a sponge. The inmates gave him some blankets. He slept on one sponge and used one blanket during the month of June. It was cold. The plaintiff was very offended by being detained under those conditions. New inmates were assaulted but plaintiff was not beaten because he offered them cigarettes. He spent two weeks in detention and was released on 14 June 2015 around 15H00, after his mother had paid bail.

[32]           The plaintiff is a 39 year old unmarried male with four children, aged 19, 16, 13 and 7 years. It is his mother who took care of these children when he was in detention. Plaintiff is currently working in Katu in a timber mine. After his release from detention, people called him a thief. He has no trust any longer in the police. The plaintiff  says he does not know if Modiri paid Ditire's money back. On 2 June 2015 he was already working at Black Rock mines with a salary of R13 000.00 per month. He was scheduled to become an operator - operating a 777 machine equipment. After his release from police cells, Black Rock mine refused to take him back, saying he has a criminal record. He then spent three years without employment.

Legal principles.

[33]             The duty of a cross-examiner was reiterated  in the case of President of the Republic of south Africa v South  African Rugby Football Union and Others 2000 (1) SA 1 (CC) at para 61 as follows:

"The institution of cross examination not only constitutes a right, it also imposes certain obligations.  As a general  rule it is essential  when it is intended to suggest  that a witness is not speaking the truth on a particular point, to direct the witness 's attention to the fact  by questions put in cross examination showing that the imputation is intended  to be made and to afford the witness an opportunity, while still in the witness­ box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross examination, the party calling the witness is entitled to assume that the unchallenged witness 's testimony is accepted as correct. "

[34]              The cross-examination of Modiri by the plaintiff's Counsel was concentrated on the written sale agreement of the Ford Escort car between Modiri and the plaintiff. It was put to Modiri that the plaintiff was not part of the plan to defraud and steal from people. However, the finer details of what Modiri testified about in relation to the morning of 2 June 2015 at Ditire's place, no attempt was made to challenge that under cross-examination. Modiri testified that he phoned the plaintiff and told him that he must come to fetch him because he had escaped from Ditire's house. Modiri testified that plaintiff's response was that he had no petrol. Modiri then organized five litres of petrol for the plaintiff in order for him (plaintiff) to come and fetch Modiri. All this evidence by Modiri was not challenged under cross-examination. The Court was therefore denied the opportunity to listen to Modiri's response on these issues had he been questioned.

[35]           Section 40 (1)(b) of the Criminal Procedure Act, 51 of 1977

provides:

" A peace officer may without warrant arrest any person ... (b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody."

[36]           In the matter of Stemar v The Minister of Police and Another (4789/2012) [2014] ZAGPPHC 295 (16 May 2014), the Court inter alia held that:

An arresting officer has a duty to exercise due diligence to ensure that the person arrested and detained is actually the perpetrator otherwise law-abiding citizens will be left at the mercy of the police.

"[16] The requirement that the arrest be made only on probable cause, in my view, requires that an arrest without a warrant must stand on firmer grounds than mere suspicion, the arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the perpetrator otherwise law-abiding citizens will be left at the mercy of the officer's whim. "

[37]           In the matter of Nqweniso v Minister of Safety and Security (2267/2010) [2012] ZAECGHC, the  Court,  referring  to the  matter of Mabona v Minister of Law 1988 (2) SA 654, inter alia held that:

"In Mabona and  Another v Minister  of Law and Order and Others 1988 (2) SA 654 (SE) at 658F-H, Jones J set out with his usual clarity the approach to be adopted in considering whether the arrestor 's suspicion was reasonable:

It would seem to me that in 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  the 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 analyse and assess the quality of the information at his disposal critically,  and he will not only 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  but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion. ''

[38]            In the matter of Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178) (TPD) 183J-184D, the Court inter alia held that:

" An arrest without a warrant is a drastic means of initiating a prosecution or securing the accused attendance in court. Police officers who purport to act in terms of section 40 (l)(b) should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of a lawful arrest."

[39]            In the matter of Matebese v Minister of Police (2224/2017) [2019] ZAECPEHC 37 (18 June 2019), the Court held that:

"[28] It is trite that police officers purporting to act in terms of section 40 (I)(b) of the Act should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of lawful arrest.            It is expected of a reasonable person to analyse and weigh the quantity of information available critically and only thereafter, and having checked what can be checked, will he form a mature suspicion that will justify on arrest."

Evaluation.

[40]             Modiri testified that he shared all the proceeds of fraud with plaintiff. Later he said that he gave plaintiff all this money because he was paying for the purchase of the Ford Escort. He contradicted himself again in relation to the contents of the written agreement between the two of them. lnfact, the contents of the document contradicted what he said was written in the paper. His evidence in cross­ examination is that the written sale agreement relates to the sale of the Ford Escort car and the injectors. When the written agreement was read into record, it became clear that it talked about the car sale only. It said nothing about the injectors. These contradictions relating to the sale of the car and purchase of the injectors are not so material because the said sale of the car is totally unconnected with the alleged fraud case.

[41]             Modiri has been criticised as a witness by the plaintiff's Counsel on the ground that he concealed the alleged sale agreement of the Ford Escort in his evidence in chief. I do not think he concealed that aspect. Defendant's Counsel  did not lead him to testify in that area. In any case, as I have already  said, the sale of the Ford Escort  car is not one of the facta probanda in this case. It will be seen therefore that Modiri contradicted himself mainly around the contents of the sale agreement document. As stated earlier, these are peripheral issues which do not  affect the credibility  and reliability  of Modiri  as a witness. Throughout on 2 June 2015, his explanation to the police from the time when they found him at Ditire's house up to the police station - his account was consistent with what he had earlier stated. Even before this Court, he did not deviate from his version of 2 June 2015, which he gave the police.

[42]           I am aware that I am dealing with a self-confessed thief ad fraudster. For that reason I have approached his evidence cautiously. There is no evidence that he has been convicted of any of these fraud cases as at the date when he testified before me, I had the advantage of observing him for a long period of time in the witness box when he testified. I keep in mind that he testified towards the end of the year 2019 about the incident of 2015, June the 2nd . Some of the contradictions in his testimony are attributed to this lapse of a period of more than four years before he could testify. Despite that he is a self-confessed deceiver, who lied to people, cheating them to part with their hard earned money, I am satisfied that he is an honest and reliable witness . He has no grudge against the plaintiff. Their relationship has always been normal. The Court therefore is satisfied that he is a truthful witness.

[43]            Sonti testified that neither he nor Motheletsi arrested the plaintiff. On the other hand, Mokgatlhe confirmed that she is the one who took the decision to arrest and detain the two suspects. This evidence by Mokgatlhe that she is the one who carried out the arrest and detention, goes against the defendant's plea that it was Sonti and Motheletsi who arrested and detained the plaintiff. Mokgatlhe was vague when asked if she ever gave the plaintiff chance to voice his defence to the allegations against him. Finally, she agreed that she never gave him that chance. She however referred the Court to paragraph 3 (a) of the Notice of Rights which she read over to the plaintiff. Paragraph 3 (a) states inter alia that whatever the suspect says will be written down and may be used against him later.

[44]             Mokgatlhe testified that she exercised her discretion to arrest and detain (i) based on the version of Modiri, (ii) the offence of fraud appears in Schedule 1, and (iii) so that the suspect may appear in Court when he is needed.

[45]             The version of the plaintiff is a total opposite of the testimony  of Modiri. There are clear contrasts  in the account  of these two men.  . In this regard, the approach which the Court  has to adopt, was  set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell ET CIE and Others 2003 (1) SA 11 at 14I-1SE

" On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute, which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows: To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses, (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance such as (i) the witness ' candour and demeanor in the witness­ box,· (ii) his bias, latent and blatant , (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), {iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed  issues. In the light of its assessment  of (a), (b) and (c)  the  court  will  then,  as  a  final   step,   determine   whether  the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail."

[46]             The version of the plaintiff in brief: he met Modiri only twice before the day of their arrest (2 June 2015). He (plaintiff)  first met Modiri  at a garage in May 2015 when he (Modiri)  asked  for  a lift from him to go to Setlhwatlhwe. Subsequent to that day, Modiri came with a lady to plaintiff's parental home to see the Ford .Escort. He was happy with the car and paid R1 000.00 deposit, promising to come shortly, to pay the balance in either cash or through cattle. Modiri never  came back to plaintiff since that day. He never paid the balance  of the purchase price on the car. Next, on the third occasion when they met, it was on 2 June 2015 when Modiri was with the police. If plaintiff's version is true, then Modiri's conduct of suddenly  implicating him falsely in such serious crimes is  unusual.  When these men parted on the day when Modiri  paid R1 000.00  deposit for the car, he was happy with the deal, said the plaintiff.  It is this very same man who was happy with the deal - sale of the Ford Escort, who now totally somersaults to lie about an innocent  man, the plaintiff. What made Modiri to change?

[47]            Modiri gave a very detailed account how the offences were committed. He even disclosed cases in which he was involved in respect of which he had not yet been charged of as at the morning of June 2, 2015. He detailed how false sim-cards were used to defraud people. It is not disputed by anyone that Modiri defrauded the people as he alleged. The only issue was and is still is: who is the man who played the role of a mine HR officer. Before Sonti and Motheletsi and the others at the police station, Ditire and either his son or nephew told the police, in the presence of plaintiff that they now recognized his voice as the same voice of the person who had telephonically professed to be the HR officer. This averment was not challenged in cross-examination of Sonti and it was also not dealt with by the plaintiff in his evidence in chief. On this same issue of the plaintiff's voice, Mokgatlhe told Court that after the suspects and complainants were handed over to her at the CSC to charge them, Ditire said that he recognized the voice of the plaintiff as the voice of the same mine HR officer with whom he had spoken over the phone. In cross-examination of Mokgatlhe, this aspect was not challenged. Equally so, again the plaintiff did not deal with this allegation (i.e. either deny or confirm it) in his evidence. There is no evidence to the effect that immediately after Ditire claimed to recognize plaintiff's voice, that he challenged Ditire there and then. This Court therefore accepts that twice at the police station, before different police officials, Ditire implicated plaintiff in his presence without any denial on his part. My view is that innocence would have spoken denying the allegations instantaneously. This the plaintiff did not do.

[48]            On the positive side for the plaintiff is that he did not contradict himself in his evidence. This, notwithstanding, I find his version that Modiri falsely implicated him to be highly improbable. It is my view that not only is the plaintiff's denial (of complicity in the fraud with Modiri) improbable but it is a straight forward lie. There is no reason why Modiri would have decided to implicate him falsely. He had no reason to do so. It is not denied that Modiri did not defraud people alone; he had a partner, the HR officer. The Court finds that the said HR officer is the plaintiff.

Conclusion.

[49]            With this finding in mind, was Mokgatlhe then justified to arrest and detain the plaintiff without a warrant under these circumstances? My answer to this is yes. The plaintiff had been threatening Modiri with assault in the presence of the police and also at the police station; if he were to be released, he would have posed a threat against people apart from Ditire. So the police were in all probability still going to investigate further charges against these two men. It is not easy to detect fraudsters especially who use false or non-existent cell numbers, to defraud people. It was therefore essential to arrest and detain the plaintiff as Mokgatlhe did. The Court finds therefore that the arrest and detention of plaintiff was not unlawful. He is therefore not entitled to any damages from the defendant.

Order.

[50]            Due to the aforesaid reasons, the plaintiff's claim is dismissed with costs.

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Plaintiff:NIENABER & WISSING

10 Tillard Street

MAHIKENG

(018) 381 0098

Ref: C NIENABER/SD/BN6740

For the Defendant: STATE ATTORNEY

1st Floor, East Gallery

Mega City Shopping Complex MMABATHO

Ref: 1138/18/P6

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