Minister of Police and Another v Mafa and Another (A170/2013) [2017] ZAGPPHC 522 (26 May 2017)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

26/05/2017

CASE NO: A170/2013

Reportable: No

Of interest to other judges: No

In the matter between:

MINISTER OF POLICE FIRST APPELLANT

WARRANT OFFICER MPHUTI SECOND APPELLANT

AND

M.L. MAFA FIRST RESPONDENT

M.S.J. NJATI SECOND RESPONDENT

JUDGMENT

RABIE, J

1. This is an appeal, by leave of the trial court, against the judgement and order of the trial court on 13 December 2012 awarding an amount of R 200,000, 00 in damages to each of the respondents, as plaintiffs, against the appellants jointly and severally, in respect of their unlawful arrest and detention by members of the first appellant. I shall hereinafter referred to the first appellant as "the appellant".

2. The respondents issued summons against the appellants claiming damages arising from their arrest on 21 June 2010 and their detention untill 27 October 2010 when charges against them were withdrawn in the Magistrates' Court.

3. In their Plea the appellants denied liability, inter alia, on the basis that there existed reasonable and/or justifiable grounds upon which the arrests of the respendents were based.

4. At the commencement of the trial the court was informed that the sole issue to be adjudicated was the question whether, as envisaged in Section 40 (1) (b) of the Criminal Procedure Act, 1977, the suspicion of the arresting officer that the two respondents had indeed committed the crime of armed robbery, was a reasonable suspicion.

5. From the pleadings as well as the aforesaid statements to the trial court and the manner in which the trial was conducted the issue which the court had to decide was thus whether, at the time of the arrest, which occurred without a warrant of arrest, the suspicion of the arresting officer, Detective Constable Fouche, that the respondents had committed a Schedule 1 offence, was based on reasonable grounds.

6. The relevant facts which culminated in the arrest and detention of the respondents were briefly as follows. During the morning of 21 June 2010 an armed robbery was committed at the Castle Corner Bar in Sinoville, Pretoria. Two robbers entered the premises, held the personnel up at gunpoint and robbed an amount of approximately R 6000, 00 and certain movable items. During the course of the robbery two other perpetrators kept guard on the outside of the premises and another waited in a getaway car.

7. The premises as well as the area outside were covered by CCTV Cameras which captured the events. It showed the actions of the perpetrators and from the footage it could be seen that one person wore a red jacket with a Ferrari badge on it as well as a baseball cap. The other persons wore so-called "beanies" on their heads. The footage also showed the getaway car which could be identified as a Ford Laser. The registration numbers of the vehicle was not visible on the footage but it could be seen that the

hubcaps of the vehicle were not the standard issue hubcaps but specially manufactured hubcaps which were referred to at the trial as "aftermarket" hubcaps.

8. Detective Fouche described the events which he found after he arrived on the scene as well as during the arrest of the respondents. At the scene of the crime the owner of the premises showed the CCTV footage to him and the other policeman present and it was downloaded onto Fouche's computer. The owner indicated that he would download the footage and that the investigating officer could collect it from him at a later stage. Fingerprints were also taken from the scene.

9. After the event Detective Fouche contacted several of his informers. He informed them that he was looking for suspects who robbed the Bar and who were travelling in a white Ford Laser with aftermarket hubcaps. He also gave them a description of more or less what he could see on the CCTV footage. When asked about this he stated that he can remember from the footage that one of the robbers was "a little but tall and slender" and that another of the suspects had "a little bit of a round face, was well-built". He also described the jacket of one of the perpetrators which had the Ferrari badge on the back.

10. According to detective Fouche he was contacted by one of his informers a few days later who told him that he had to go to the Island Tavern in Mamelodi East, a suburb of Pretoria, and that there were two persons in the tavern that were driving a Ford Laser with aftermarket hubcaps and that they also fit the description that he gave to them.

11. Detective Fouche summoned assistance and went to the Island Tavern. It was in the early morning hours of Friday 2 July 2010. In front of the tavern they found a Ford Laser motor vehicle that looked similar to the one on the CCTV footage and which had similar hubcaps. Detective Fouche opened his laptop and again looked at the CCTV footage of the robbery and then proceeded into the tavern.

12. He testified that after entering the tavern he asked a general question of who the owner of the white Ford Laser is. Two persons stood up and he introduced himself as a police officer and asked them to step outside with him. Outside he and these two persons, which were the respondents, looked at the CCTV footage on his computer. According to him the respondents looked the same as two of the persons on the footage and had the same build, same height and same features. He added that some of the other police members with him at the time and who also looked at the footage were also convinced that they were exactly the same suspects that were on

the CCTV footage. In respect of the clothing the one suspect which was described as tall, also had a baseball cap on which looked

similar to the one that he was wearing on the CCTV footage.

13. According to detective Fouche he then asked the respondents about their whereabouts on the day of the robbery but they could not answer him. He then informed them that he was going to arrest them for the robbery as can be seen, and as they saw, on the CCTV footage. He informed the respondents of their rights and detained them at the Mamelodi East Police Station.

14. After the detention of the respondents detective Fouche had nothing more to do with the matter as it was then being handled by the Investigating Detectives of the branch he was working at.

15. The respondents were brought before court on Monday 5 July 2010. The first respondent applied for bail but it was refused. The second respondent never applied for bail. The matter was remanded a number of times. During this time an identity parade was held but none of the respondents was identified by the two witnesses who attended the identity parade. I should add that according to Detective Fouche there was mention of a third person, Mr M.J. Wheeler, who had stated to the police that he would be able to identify the robbers but for some reason this person did not attend the identity parade. The end result was that the prosecutor issued a certificate of nolle prosequi and the respondents went free. This occurred on 27 October 2010.

16. According to detective Fouche the appellants fitted the descriptions and there was a good resemblance between the respondents and persons on the CCTV footage and that he was convinced that they were actually the persons depicted on the footage. This was supported by the fact that the vehicle depicted on the footage was the one found in possession of the respondents. He was therefore satisfied that he could arrest the respondents on the count of robbery.

17. The respondents had a slightly different version of the events of the night of their arrest. There were a number of discrepancies in their evidence which were noted by the trial court. According to the first respondent Detective Fouche entered the premises of the Bar and ordered all of the approximately eight persons inside to lift their hands against the wall whereafter he searched them and told them to take their seats again. He then called the first respondent to the outside of the bar where he showed him the CCTV footage on his laptop computer and told the first respondent that one of the persons was him. According to the first respondent he disputed that it was him on the footage but they nevertheless took his finger prints and he was handcuffed and placed in the police van. Later the second respondent was also placed in the police vehicle. He testified that the second respondent was unknown

to him.

18. The first respondent also stated that when he said that he was not the person on the CCTV footage the police officials who were present all said that it was in fact him on the footage.

19. The second respondent admitted that he is the owner of the Ford Laser motor vehicle found outside the bar where he was arrested. He confirmed the evidence of the first respondent as to what happened inside the bar after Detective Fouche had entered. He added, however, that the first respondent was called and told that he was one of the persons on the footage on the laptop computer which one of the policeman had. The second respondent was then handcuffed. I must add that although the second respondent denies that the CCTV footage was shown to him, his evidence supports the evidence of Detective Fouche who testified that both the respondents were taken outside and shown the footage on the computer at the same time as he would not have been aware of it if he had not been with the first respondent when he was shown the footage on the computer. This evidence is in conflict with the evidence of the first

respondent that he was taken out first, shown the footage and then placed in the police vehicle, all prior to the second respondent

being taken from the bar. According to the second respondent he was arrested for the reason that the police said that his vehicle was at the scene of the robbery. This was denied by Detective Fouche.

20. A last aspect that may be referred to is that Detective Fouche as well as the first respondent testified that the respondents were sitting next to each other in the bar when Detective Fouche entered. According to the second respondent this was not the case.

21. In her judgement the trial Judge came to the conclusion that she was faced with two irreconcilable factual versions on the issue, which I presume is the issue of whether Detective Fouche had a reasonable suspicion which allowed him to arrest the respondents. The trial court consequently analysed the evidence and found the first respondent to be a good witness who did not contradict himself. She found that the second respondent was not a satisfactory witness in all respects in that there were discrepancies in his testimony and also false evidence in respect of certain aspects. She however found that even if he was not truthful and reliable in all aspects, the essential features of his version was on a balance of probabilities true and that their evidence corroborated each other.

22. On the other hand, the trial court found the evidence of Detective Fouche was highly improbable, and that consequently no reliance could be placed thereon and that it had to be rejected.

23. Although I am of the view that the differences in the evidence between Detective Fouche, on the one hand, and the respondents, on the other hand, are of no real relevance to the issues to be decided in this case, I nevertheless deem it necessary to refer to the basis upon which the trial court rejected the evidence of Detective Fouche.

24. The trial court found that there were no discrepancies in the evidence of Detective Fouche. Yet, the trial court found his evidence of how he arrested the plaintiffs to be highly improbable and thus unreliable. Consequently, so the trial court found, the appelant failed to discharge the onus which rested on him.

25. I think it is necessary to firstly refer to the reasons why the trial court came to this finding before referring to the real issue the court had to decide and the issue of onus.

26. In respect of the aforesaid improbabilities which the trial court found, the following may be said. Firstly, the trial court found it improbable that when Detective Fouche enquired about the owner of the motor vehicle, two people stood up and claimed to be the owners of the motor vehicle. This finding by the trial court is contentious. Firstly, Detective Fouche did not testify that two people claimed to be the owner of the vehicle. His evidence was that one of the two persons said that he was the owner of the vehicle. Secondly, the exact words used by Detective Fouche in his question who the owner of the vehicle was, were not established and neither was it established that he was referring to, and was understood to be referring to, legal ownership in the vehicle. If he had for instance asked "who's Ford car is outside the bar?", or words to that effect, there is nothing improbable that both the respondents would have responded by standing up if they had arrived in the car.

27. Secondly, the trial court found it improbable that Detective Fouche did not even enquire who of the two was the real owner, but just arrested both of them. This finding is not supported by the facts. As mentioned before one of the persons did mention that he was the owner of the vehicle. Furthermore, both of them were arrested for the reason that Detective Fouche identified them on the CCTV footage. It was never the evidence of Detective Fouche that he arrested the respondents for the sole reason that they

both reacted to his question. Before he went into the bar, he looked at the footage on his computer again. After he had taken the

respondents out to his vehicle, he looked at the footage again, this time in their presence. According to Detective Fouche it was as a result of what he saw on the footage that he identified the respondents as the robbers and that as a result thereof he arrested

them.

28. Thirdly, the trial court found it improbable that people who had recently been involved in a robbery and had used the vehicle outside the bar for that purpose, would readily stand up and own up to the fact that the motor vehicle was their vehicle. I fail to see any improbability in Detective Fouche's evidence in this regard. Firstly, the robbery occurred some 11 days prior to the events in the bar, which is quite a long time. Secondly, there was no evidence to suggest that the respondents would have connected the question of Detective Fouche with the events which took place 11 days earlier. Thirdly, it would hardly have served any purpose if the respondents had denied any knowledge of the vehicle. They probably knew, if they had thought about it, that the police would be have been able to establish their connection with the vehicle very easily.

29. Fourthly, the trial court found it improbable that Detective Fouche would not have confiscated the baseball cap which the first respondent was wearing at the time of his arrest if that baseball cap had been similar to the one on the CCTV footage. This aspect was not taken up with Detective Fouche when he testified and no conclusion can consequently be drawn in respect of this issue.

30. Fifthly, the trial court found it improbable that if the people arrested were the same ones who were on the CCTV footage, why the police did not provide the prosecution with that footage immediately. Firstly, it is not altogether clear from the evidence when the police who investigated the matter further, obtained the footage from the owner of the bar and when such footage was handed to the relevant prosecutor. But even so, the later actions or inaction of other members of the SAPS and/or the relevant prosecutor can hardly reflect negatively on the evidence of Detective Fouche. It was common cause, after all, that he had not been involved

with the matter subsequent to the arrest of the respondents.

31. Sixthly, the trial court found Detective Fouche's evidence improbable for the reason that if the respondents were the people on the CCTV footage, why were they not easily identified at the identification parade. This, in my view, is another non sequitur. Firstly, it is not known how long after the robbery the identification parade was held. Secondly, there can be a myriad of reasons why the two persons who attended the identification parade failed to point out the respondents. It may in this regard be mentioned that according to Detective Fouche, one of the respondents was one of the persons who remained outside the premises during the robbery. Thirdly, it is significant that Mr MJ Wheeler who had indicated that he would be able to identify one of the robbers who had a firearm when he sees him again, was not called to attend the identification parade. Fourthly, whatever the situation regarding the identification parade, it can hardly be used as a yardstick for the truthfulness and reliability of the evidence of Detective Fouche. Those witnesses had to rely on their memories after having seen the robbers probably for a very short length of time, during a moving scene and under very stressful circumstances. On the other hand, Detective Fouche studied the CCTV footage on a number of occasions and was therefore probably in a much better position to identify the robbers.

32. Having regard to the aforesaid I cannot agree with the finding of the trial court that the evidence of Detective Fouche has to be rejected as unreliable because of the improbability thereof.

33. But despite the above, I am of the view that the trial court misdirected itself by deciding the issue between the parties with reference to the aforesaid probabilities. It cannot be doubted that Detective Fouche effected the arrest of the respondents based on the fact that he identified them as two of the persons appearing on the CCTV footage of the robbery. It was this identification which caused Detective Fouche to suspect the respondents of having committed the Schedule 1 offence of robbery with aggravating circumstances. Before I refer to the relevant facts it is necessary to look at the provisions of Section 40 (1) (b) of the Criminal Procedure Act, Act 51 of 1977, more closely.

34. Section 40 (1) (b) provides as follows:

"40 Arrest by peace officer without warrant

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

(a) …

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody; "

35. In Duncan v Minister of Law and Order 1986 (2) SA 805 (A), the court found the jurisdictional facts for a section 40(1)(b) defence to be that (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and (iv) the suspicion must rest on reasonable grounds.

36. It is trite that the onus rests on a defendant to justify an arrest. In Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A), Rabie CJ stated:

"'An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law."

37. In respect of the question whether a peace officer "reasonably suspects", van Heerden JA stated the following in Duncan versus Minister of Law and Order (supra) at p 814D:

"It was also common cause that the question whether a peace officer "reasonably suspects" a person of having committed an offence within the ambit of s 40 (1) (b) of the Act is objectively justiciable. And it seems clear that the test is not whether a policeman believes that he has reason to suspect, but whether, on an objective approach, he in fact has reasonable grounds for his suspicion (cf Watson v Commissioner of Customs and Excise 1960 (3) SA 212 (N) at 216; R v Van Heerden 1958 (3) SA 150 (T) at 152; Wiesner v Molomo 1983 (3) SA 151 (A) at 159)."

38. In Botha v Lues 1983 (4) SA 496 (A) at p 503C Corbett JA, as he then was, found in respect of a similar inquiry as follows:

"Die enigste vraag is dus of respondent redelike gronde gehad het om appellant daarvan te verdink dat hy toe onder die invloed van bedwelmende drank of verdowingsmiddels was. Die Hof a quo het die toets soos volg gestel (te 695G):

"Die vraag is slegs of, volgens suiwer objektiewe maatstaf, en inaggenome al die tersaaklike feite en omstandighede, 'n redelike man sodanige gronde van verdenking sou gekoester het om, verstaanbaar, tot uitoefening van sy arrestasiebevoegdheid oor te gaan."

Daar is myns insiens geen fout met hierdie uiteensetting van die toets te vind nie."

39. As mentioned before the issue between the parties was indeed whether there existed reasonable grounds for Detective Fouche to form a suspicion as envisaged in section 40 (1) (b) at the time that he arrested the respondents that they had committed the robbery in question. The test, as enunciated above, was thus whether objectively, on the facts before the court, a reasonable person would have formed the required suspicion in the circumstances of the case.

40. In applying this test to the facts of the present case it is, firstly, common cause that Detective Fouche's suspicion was based on what he saw on the CCTV footage. According to his evidence he noted the features and the special features of the vehicle as well as the appearance of the robbers.

41. In respect of the vehicle he testified that from the CCTV footage he could identify the Ford Laser vehicle, white in colour, with unique aftermarket wheel caps, greyish in colour. These features were identical to the vehicle outside the bar where he arrested the respondents and which belonged to one of the respondents.

42. In respect of the identity of the robbers certain portions of Detective Fouche's evidence were the following: on page 15 he testified that

"Outside (the bar) we again watch the video footage and the two guys that were standing next to us had the same description that was on the video, same build, same height, same features. Even the police members that were with me also had a look at the video and they were also convinced that it was exactly the same suspects that were on the video footage."

43. Also on page 15 he testified in respect of the clothing as follows:

"Only on the clothing, the one suspect that was tall and also a baseball cap on which was looking similar to the one that was on the CCTV footage. I asked him about the whereabouts of the day of the mentioned crime that happened at Castle Corner and at that stage they could not answer me. I then informed them that I'm going to arrest them for the business robbery. And also informed them that there was video footage which they also saw at the scene where I arrested them."

44. On page 16 the following was testified:

"Now the two suspects that you arrested, in the video footage, where did they feature? --- The one was also on the porch, outside the tavern and the other one was standing, he was going to the driver's, he was actually going to the driver's side of the vehicle".

45. On page 17 the following was testified as to the contents of a previous written statement by Detective Fouche which reads as follows:

"Ek het toe na die Paradise Island toe gegaan en het toe daar 'n wit Ford Laser soortgelyk aan die voertuig wat ek op soek was na, en aangetref. Binne in die tavern het ek die verdagtes opgemerk wat aan die beskrywing voldoen. Wal ook op die video opname van die roof toneel uitken. Ek het toe die twee verdagtes genader en het toe na die video opname gekyk en toe vir die verdagtes in kennis gestel dat ek hulle arresteer vir die gewapende roof by Castle Corner in Montana. .... Op grond van die feit wat ek waargeneem het op die video opname. En die ooreenkoms tussen die verdagtes en die toneel wat ek bygewoon het met die video opname se beeld materiaal het ek 'n goeie ooreenkoms tussen die verdagte en die, wat ek gearresteer het en die verdagte op die toneel was."

46. On page 22 the following was testified:

"So, and you say one of the accused in this instance was inside the Castle Corner, was one of the persons who went inside and robbed the place? --- According to what I saw on the video footage yes."

47. It is clear from the evidence of Detective Fouche that he could identify the respondents as two of the persons in the CCTV footage and that it was for this reason, together with the identification of the Ford Laser vehicle, that he arrested the respondents.

48. It was never put to Detective Fouche that he would not have been able to accurately identify the respondents as being two of the persons depicted in the CCTV footage. The relevant CCTV footage was furthermore not placed before the trial court by any of the parties. There is consequently no evidence before the court to show that it was not reasonable of Detective Fouche to suspect the two respondents of being two of the persons depicted on the footage.

49. There is furthermore no indication from the evidence that Detective Fouche did not have proper regard to the CCTV footage before he arrested the respondents as being two of the persons depicted on the footage. In fact, Detective Fouche got the footage downloaded on his personal computer, studied the contents thereof and on the basis thereof advised his informers of what he was interested in. Furthermore, prior to entering the bar where the respondents were arrested, he again studied the CCTV footage on his computer and did so again in the presence of the respondents after they had exited from the bar and before he arrested them. In my view these are not the actions of a police official who disregarded the evidence at his disposal and who arrested persons arbitrarly and without just cause. These are the actions of a police official who studied the evidence at his disposal, applied his mind thereto and satisfied himself that based on such evidence, he was arresting the right persons.

50. Consequently, in my view, the appellant has proved on a balance of probabilities all the jurisdictional facts required by section 40 namely that the arrestor, Detective Fouche, was a peace officer; that the arrestor entertained a suspicion; that the suspicion was that the suspects, the respondents, committed an offence referred to in Schedule 1; and that the suspicion rested on reasonable grounds. Consequently, Detective Fouche, on an objective approach, had reasonable grounds for his suspicion and was thus entitled, in terms of section 40, to arrest the respondents.

51. Reference was made during the debate in this court of the discretion exercised by Detective Fouche to arrest the respondents. In my view, however, the question whether the exercise of the discretion to arrest the respondents was lawfully made, was not an issue between the parties either in the pleadings or during the trial in the court a quo.

52. But even if I were to be wrong in this regard I am nevertheless satisfied that on the facts before this court there was no question that Detective Fouche's decision to arrest the respondents on the night in question can for any reason be found to be unlawful. In the matter of Minister Of Safety And Security v Sekhoto And Another 2011 (5) SA 367 (SCA) the court discussed the discretion which arises once the jurisdictional facts for an arrest, whether in terms of any paragraph of section 40(1) or in terms of section 43, are present. In such a case, where the jurisdictional facts are present, a discretion arises and the police officer is not obliged to effect an arrest.

53. In Duncan v Minister of Law and Order (supra) at p 818 the court found that the grounds on which the exercise of such a discretion can be questioned are narrowly circumscribed. Furthermore that the onus is on the arrestee to prove the unlawfulness of the exercise of the discretion. As stated before the unlawfulness of the exercise of the discretion to arrest the respondents was not an issue between the parties and no evidence was presented in that regard. Consequently no more needs to be said about this issue.

54. That brings me to the issue of the detention of the respondents. In the pleadings the respondents merely referred to their arrest and detention, and I shall assume in their favour that they have pleaded that such arrest and detention were unlawful. The clear impression from the pleadings is that the unlawfulness of the detention follows as a result of the unlawfulness of the arrest. Nothing was pleaded in addition to support the claim that the detention was unlawful. Furthermore, as I have stated above, the agreement between the parties at the commencement of the trial was that the only issue to be decided by the court was the issue of the reasonable suspicion of the arresting officer at the time of the arrest of the respondents. Furthermore, it was common cause that the Minister of Justice and Constitutional Development, as the relevant authority responsible for the actions of the prosecuting authority, was not a party to the proceedings.

55. In her judgement the trial Judge, however, made a number of findings regarding the prosecution of the matter as well as the actions and responsibilities of the police investigating the matter. In the judgement the trial court found that the "tardiness of the police is the cause of the plaintiffs being detained for so long, in this instance. The investigating officer failed to provide the prosecutor with the information at his disposal". In support of this finding the trial court referred to certain of the notes in the investigating diary, certain of the requests of the prosecutor, certain aspects of the identification parade and other such matters and found that the police failed to relay certain information to the prosecutor. The trial court found that there was no need for the case to be postponed for investigation as was done as the information was already available to the police

but that they had failed and/or neglected to provide such information to the prosecutor. The trial court found that at all material times the police knew that they did not have evidence against the respondents and that they had misled the prosecutor. Consequently, so the trial court held, the Magistrates' Court did not have the full information when exercising its discretion to further detain the respondents. In the result the trial court found that the defendants are consequently liable for the full period of the detention of the respondents.

56. The trial court, in my view, was not entitled to adjudicate the aforesaid issues relating to the conduct of the police in the prosecution of the matter after the respondents' first court appearance for the simple reason that same were not pleaded by the plaintiffs and was never intended to be issues which the trial court had to adjudicate. In any event, there was no evidence, or at least sufficient evidence, placed before the court to have come to the aforesaid findings. There was, for example, no evidence as to the nature and extent of the investigation into the offences which had been perpetrated by at least five persons and not only by the two respondents. There was also no evidence regarding the available evidence against the respondents and also no evidence

regarding the actions of the prosecutor and the investigating officer and the matters they would have discussed.

57. The only information which came before the trial court arose from the cross examination of Detective Fouche when he was confronted with certain statements relating to the prosecution of the case. Detective Fouche was not in a position to accurately and comprehensively reply to such statements for the simple reason, as was common cause, that he was not involved in the further investigation and prosecution of the matter.

58. Furthermore, as a result of the manner in which the respondents' case was pleaded and also as a result of the basis upon which the trial was conducted, the first and second appellant never had the opportunity to present their case to the trial court in respect of the aforesaid issues found against them. As mentioned before, according to the pleadings and the manner in which the trial was conducted, the unlawfulness of the detention of the respondents would have depended on a finding that the arrest was unlawful, and on nothing more. The trial court was accordingly never entitled nor in a position to make the aforesaid findings and to come to the conclusion that the appellants are liable to compensate the respondents for their detention.

59. In the result the appeal should succeed and the order of the court a quo should be set aside. As far as costs are concerned there is no reason why costs should not follow the event.

60. In the result the following order is made

1. The appeal succeeds and the order of the court a quo is set aside and replaced with the following order: "The plaintiffs' claim is dismissed with costs which costs shall be paid by the plaintiffs jointly and severally".

2. The respondents are ordered to pay the appellants' costs of the appeal jointly and severally.

___________________________

C.P. RABIEJUDGE OF THE HIGH COURT

I agree

_________________________

N. RANCHODJUDGE OF THE HIGH COURT

S.P. MOTHLEJUDGE OF THE HIGH COURT