Mokabatlhobolo v Minister van Polisie (1141/2015) [2016] ZANWHC 62 (1 December 2016)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 1141/2015

Reportable: No

Circulate to Judges: No

Circulate to Magistrate: No

Circulate to Regional Magistrates: No

In the matter between:

JAKOBA JAMES MOKABATLHOBOLO Plaintiff

and

MINISTER VAN POLISIE Defendant

DATE OF HEARING : 17 & 18 OCTOBER 2016

DATE OF JUDGMENT : 01 DECEMBER 2016

COUNSEL FOR THE PLAINTIFF : ADV. STRYDOM

COUNSEL FOR THE DEFENDANT : ADV. SEBOKO

JUDGMENT

HENDRICKS J

INTRODUCTION

[1] This is an action for damages allegedly suffered as a result of unlawful arrest and detention. Plaintiff’s claim is for an amount of three (3) hundred thousand rand (R300 000.00) for pain and suffering, contumelia and unlawful detention.

THE FACTS

[2] The facts can be succinctly summarized as follows:

Mr. David Kegalalwe is a part-time cattle farmer. During March 2015 he had fifteen (15) head of cattle. As he is in fulltime employment at Ganyesa Hospital, he only kraal his cattle over weekends. During the weekend of 14 March 2015 all his cattle were there. However, during the following weekend (21 March 2015) he discovered that twelve (12) of his cattle went missing. He searched in vain for his cattle between 21 and 23 March 2015. On 24 March 2015 he went to the police station to report the lost cattle.

[3] In the meantime, Sgt. Setatwe, the police officer who is also the investigating officer in this case, received information about stolen cattle. He went to investigate at the farm of Mr. Haarman. Mr. Haarman referred him to Mr. Tippie Janse van Rensburg, the foreman on the farm, who bought cattle from the Plaintiff on 20 March 2015. Sgt. Setatwe obtained statements from both these witnesses. He also established from Colonel Mathe, that the brand mark on three (3) of the four (4) cattle that Mr. Tippie Janse van Rensburg said he bought from the Plaintiff, is that of Mr. Kegalalwe. Mr. Kegalalwe was contacted and he went with Sgt. Setatwe the following day to the farm of Mr. Haarman at Jakkalskop, where he positively identified three (3) of his cattle. These cattle were identiied by their marks. Mr. Tippie Janse van Rensburg had pointed out the very same cattle plus one (1) unmarked young calf as the cattle that he bought from the Plaintiff. Upon conclusion of the investigations, Sgt. Setatwe went to the Plaintiff’s house. He was accompanied by Cst. Maswe. It was at approximately 7 pm that night when the Plaintiff was arrested.

[4] The following averments is made in the amended particulars of claim as to why it is alleged that the arrest was wrongful and unlawful:

“5. Die arrestasie en aanhouding van die Eiser deur Konstable Setatwe was onregmatig deurdat hy:

5.1 nie redelike gronde gehad het om die Eiser te verdink van die pleeg van ‘n bylae 1 misdryf nie;

5.2 nie besef het dat hy ‘n diskresie gehad het om die Eiser sonder ‘n lasbrief te arresteer of nie te arresteer nie;

5.3 nagelaat, geweier en/of versuim het om voormelde diskresie uit te oefen, alternatiewelik behoorlik uit te oefen;

5.4 nagelaat, geweier en/of versuim het om by die Eiser of ander persone navrae te doen ten einde te bepaal of daar gronde bestaan het om die Eiser te arresteer aldan nie;

5.5 op ‘n arbitrêre wyse en sonder behoorlike gronde die Eiser gearresteer het; en

5.6 vanweë voormelde inbreuk gemaak het op die reg van die Eiser om nie op ‘n arbitrêre wyse of sonder gegronde rede van sy vryheid ontneem te word nie soos verskans in Artikel 12 (1)(a) van die Grondwet;

5.7 geweet het, alternatiewelik, redelikerwys moes geweet het dat daar geen redelike en objektiewe gronde of regverdiging bestaan het vir die aanvanklike arrestasie en verdere aanhouding van die Eiser nie;

5.8 deur verdere ondersoek sou kon vasgestel het dat daar geen rede of regverdiging bestaan het vir die verdere aanhouding van die Eiser nie, maar geweier en/of versuim het om sodanige ondersoek te doen;

Hy versuim het om te verseker dat die Eiser vrygelaat word uit aanhouding so spoedig redelik moontlik.”

THE LAW

[5] The plea was based on a defence contained in section 40 (1) (b) and (g) of the Criminal Procedure Act of 1977, alternatively, The Stock Theft Act 57 of 1959. Section 40 of the Criminal Procedure Act 51 of 1977 (“CPA”), as amended, provides:-

“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;

(c) …

(d) …

(e) …

(f) …

(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;

(h) …”

Amongst the Schedule 1 offences to which Section 40 (1)(b) refers are listed “theft, whether under the common law or a statutory provision.”

[6] Section 9 of the Stock Theft Act 57 of 1959 (“the Stock Theft Act”) provides that:-

“9. Arrest and search without warrant:-

(1) Any person may, without warrant, arrest any other person upon reasonable suspicion that such other person has committed the offence mentioned in section two or four.

(2) Whenever any justice of the peace, policeman, or owner, lessee or occupier of land reasonably suspects that any person has in or under any receptacle or covering or in or upon any vehicle any stock or produce in regard to which an offence has been committed, such justice of the peace, policeman, owner, lessee or occupier may without warrant search such receptacle or vehicle and remove such covering, and if he thereupon finds any stock or produce in regard to which he reasonably suspects an offence to have been committed, he may without warrant arrest such person and seize such vehicle or receptacle and shall as soon as possible convey such person and the stock or produce so found and the vehicle or receptacle so seized to a police station or charge office.

This means that a reasonable suspicion of contravening the Stock Theft Act affords grounds for arrest without a warrant.

[7] It is clear from Section 40(1) (b) of the CPA that the following are the essential jurisdictional facts which have to be present to justify an arrest without a warrant:

(a) the arresting officer must be a peace officer;

(b) the arresting officer must entertain a suspicion;

(c) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and

(d) the suspicion must be based on reasonable grounds.

There is no jurisdictional requirement that the arresting officer should consider using a less drastic measure than arrest to bring the suspect before court.

See: Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at page 818G – H;

Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) (2011 (5) SA 367) paragraph 6.

[8] In Naidoo v Minister of Police 2016 (1) SACR 468 (SCA) the following is stated in paragraphs [40] and [41]:

[40] And, as was explained by Van Heerden JA in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G – H, once the jurisdictional requirements of the section are satisfied, the peace officer may, in the exercise of his discretion, invoke the power to arrest permitted by the law. However, the discretion conferred by s 40(1) of the CPA must be properly exercised, that is, exercised in good faith, rationally and not arbitrarily. If not, reliance on s 40(1) will not avail the peace officer.

[41] It is now settled that the purpose of the arrest is to bring the arrestee before the court for the court to determine whether the arrestee ought to be detained further, for example, pending further investigations or trial. (See Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) (2011 (5) SA 367; [2011] 2 All SA 157; [2010] ZASCA 141) paras 30 – 31.) Thus it goes without saying that an arrest will be irrational and consequently unlawful if the arrestor exercised his discretion to arrest for a purpose not contemplated by law.”

[9] Reasonable grounds for the arrest are interpreted objectively and must be of such a nature that a reasonable person would have a suspicion. The section requires suspicion not certainty. The arrest grounds must be reasonable from an objective point of view. There must be evidence that the arresting officer formed a suspicion which is objectively sustainable. Such suspicion must, however, make sense otherwise it is frivolous or arbitrary and not reasonable. Because it is trite that the reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) must be approached objectively, the question is whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a Schedule 1 offence.

See: Mvu v Minister of Safety and Security 2009 (2) SACR 291 (GSJ) (2009 (6) SA 82).

[10] It is well established that the onus rests on the arresting officer to prove the lawfulness of the arrest. This is so because, as Rabie CJ stated in Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589E – F:

“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.”

THE DISPUTE

[11] It is apparent that the issue to be decided is whether the peace officer had reasonable grounds for the arrest. Both sections 40 (1) (b) and (g) of the CPA are applicable in this case. As a result therefor it requires the objective standard of the reasonable person. There must be a reasonable suspicion or presumption which means that an objective standard is applied to the conduct of the peace officer. There is also factual prerequisites to section 40 (1) (b) of the CPA. The suspicion not only has to be reasonable but must apply to an offence which is listed in Schedule 1. Theft, either at common law or statutory theft is listed in Schedule 1. So too, does section 40 (1) (g) of the CPA find application.

[12] The real dispute in this case revolves around the question whether the requirements of the reasonableness of the suspicion, have been met. The following actions of the arresting officer, Sgt. Setatwe, need to be taken into consideration:

· He received information from an informer about the cattle on the farm of Mr. Haarman.

· He went to the farm of Mr. Haarman to enquire from him about the cattle that he bought.

· Mr. Haarman referred him to Mr. Tippie Janse van Rensburg, the foreman, who is the person who actually bought the cattle.

· Mr. Tippie Janse van Rensburg informed the arresting officer that he bought the cattle from the Plaintiff and he even provided the permit that the Plaintiff gave to him.

· The cattle was pointed out to the arresting officer, Sgt. Setatwe, by Mr. Tippie Janse van Rensburg.

· The said cattle was inspected by the arresting officer and it was determined that the brandmarks on the said cattle does not correspond

with the permit that Mr. Tippie Janse van Rensburg said he obtained from the Plaintiff.

· Sgt. Setatwe, contacted Colonel Mathe to verify the brandmarks on the cattle.

· The brandmarks on three (3) of the cattle fit the description of the brandmark of Mr. David Kegalalwe.

· Mr. Kegalalwe had laid a complaint that some of his cattle went missing.

· Statements were obtained from Mr. Tippie Janse van Rensburg and Mr. Haarman.

· The arresting officer, Sgt. Setatwe, went to Mr. David Kegalalwe and asked him to accompany him to the farm of Mr. Haarman.

· At the farm of Mr. Haarman, the complainant Mr. Kegalalwe positively identified three (x3) of his cattle. This is the very same cattle that Mr. Tippie Janse van Rensburg said he bought from the Plaintiff.

· In his statement, Mr. Haarman states that he met the Plaintiff along the road earlier that morning. The Plaintiff was driving a bakkie which was pulling a trailer with cattle on it. The Plaintiff had a puncture on one of the wheels of the trailer.

· Mr. Haarman inspected the cattle on the trailer.

· Upon inspection of the cattle Mr. Haarman found that the brandmarks on the cattle which were loaded onto the trailer does not fit the description of the cattle on the permit.

[13] Taking all the abovementioned factors into account, I am of the view that the suspicion formed by the arresting officer, Sgt. Setatwe is reasonable. Any reasonable person confronted with the same set of facts would form a suspicion that the Plaintiff who had presented the permit and who had supplied the cattle, has committed the Schedule 1 offence of theft read with the provisions of Section 40 (1) (b) of the CPA. It does however not end there. As alluded to earlier on in this judgment, Section 40 (g) of the CPA also find application. In terms of this section, a peace officer (which Sgt. Setatwe is) may without a warrant arrest a person 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 as described in the Stock Theft Act 57 of 1959. Section 1 of the Stock Theft Act defines “produce” as meaning:

“the whole or any part of any skins, hides or horns of stock, and any wool, no hair or ostrich feathers.

and “stock” means:

any horse, mule, ass, bull, cow, ox, heifer, calf, sheep, goat, pig, poultry, domesticated ostrich, domestic game or the carcass or portion of the carcass of any such stock”.

[14] Based on the information at his disposal, the arresting officer, Sgt. Setatwe, had good reason to suspect that the Plaintiff had been in the unlawful possession of the cattle (as stock), which suspicion was reasonable. Therefore both in terms of Section 40 (1) (b) and (g) of the CPA were the arresting officer, as a peace officer, (Sgt. Setatwe), entitled to arrest without a warrant.

CONCLUSION

[15] I am therefore of the view that Plaintiff’s action must be dismissed. I can think of no plausible reason why costs should not follow the result. Plaintiff’s claim was for an amount which falls within the jurisdiction of the Regional Court to which

Magistrate’s Court scales of costs apply. No reason was advanced why this action was instituted in this Court (High Court).

The practice of instituting claims in the High Court which falls within the jurisdiction of the Magistrate Court or the Regional Court must be discouraged.

ORDER

Consequently, the following order is made:

1. Plaintiff’s claim is dismissed with costs.

2. Such costs to be taxed on the High Court Scale.

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG