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IN THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

[1]    REPORTABLE: YES/NO

[2]    OF INTEREST TO OTHER JUDGES: YES/NO

[3]    REVISED.

 

CASE NO: 51024/2012

19/9/2019

 

In the matter between:

 

U.N.MANUNGA                                                                                                      Plaintiff

 

and

 

MINISTER OF POLICE                                                                                       Defendant

JUDGMENT

 

LOUW, J

[1]         The plaintiff was arrested without a warrant by members of the South African Police Services (SAPS) on 9 October 2009 in terms of s 40(1)(g) of the Criminal Procedure Act 51 of 1977 (the CPA). He was detained in custody until 13 October 2009 whereafter he was released on bail by the court. Section 40(1)(g) provides the following:

 

"A peace officer may without a warrant arrest any person who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any Jaw relating to the theft of stock or produce."

 

[2]         The plaintiff alleges that at the time of his arrest, the members of the SAPS, acting within the course and scope of their employment, had no reasonable cause for arresting him or did not have any reasonable belief in the information provided. He alleges in the alternative that the members of the SAPS did not exercise their discretion property in the circumstances. The plaintiff pleads that the arrest was unlawful and claims damages from the defendant in the amount of R200 000.00.

[3]         The defendant's plea is that the plaintiff's arrest in terms of s 40(1)(g) was lawful as he was reasonably suspected of having stolen and/or being in unlawful possession of stock as defined in the Stock Theft Act 57 of 1959.

[4]         The plaintiff testified that he was the manager of the Belgrave furniture store in Elliott at the time of his arrest. A few months before his arrest, he had bought a cow from one Wilile Tobi by exchanging his motorcar for the cow. He had come to know Tobi as a client of the furniture shop. Tobi asked him to let him know if he heard of anyone wanting to buy cattle. One day, two people came into the shop and spoke to him about cattle. He said he could not remember their names. He confirmed that one of the persons was Vuyani Ntoyapi as indicated on the police docket and to whom I sell refer as Vuyani. He said the other person was the driver. He told them about Tobi and gave them Tobi's phone number. They subsequently returned and said that they had spoken to Tobi and that they had managed to get the money for the cattle they wished to purchase. They requested the plaintiff to accompany them to collect the cattle.

[5]         The plaintiff said that he then accompanied them to show them the place where and the person from whom he had also bought a cow. The name of the driver was Lulu Mkhulekhaya, to whom I shall refer as Lulu, from whom, the plaintiff said, Vuyani had hired a truck. The truck was in fact a Ford Cortina bakkie with a trailer . They then drove to the farm Kromdraai where the plaintiff had collected the cow which he had previously bought, where they found Tobi. The plaintiff said that he gave Tobi and the others space to talk, and that he didn't hear what was said. Three head of cattle, which were heifers, were then loaded onto the trailer. The plaintiff said that he saw Tobi handing over a piece of paper or a receipt, whereafter they drove off in the direction of Elliott which was some 35 to 40 km away.

[6]         On their way to Elliott, the bakkie broke down. Lulu said that he knew that the gearbox of the bakkie was causing trouble, but that he had a spare gearbox at home. The plaintiff said that he had to get back to work and Lulu then asked him to go to Elliott and to tell the people at home to bring the spare gearbox to him. The plaintiff then hitchhiked to Elliott and went to his place of work to arrange transport. He asked the furniture shop's driver to take the spare gearbox with the shop's bakkie to where the Ford bakkie had broken down. He accompanied the driver because he knew where the broken down bakkie was standing.

[7]         On their arrival, he found people standing around the bakkie and another vehicle on the opposite side of the road. He inquired what was wrong. One of the people, who he said were farmers, asked him where they had got the cattle from. He said to the farmer that they had been bought on the farm Kromdraai. The farmer then said that he should stay there as the police were on their way. The plaintiff said that they then took the gearbox off the furniture shop's bakkie . The driver returned to the shop with the bakkie.

[8]         Two policemen then arrived on the scene. It is common cause that they were Capt. Madelisa and warrant officer du Plessis and that they arrived in a Land Cruiser bakkie. The plaintiff said that the two police officers first spoke to the farmer. He then met the policemen in the middle of the road. The captain said that the cattle were stolen. Plaintiff says that he then said no, and asked the purchaser to show them the receipt. He did not say whether the receipt was shown. He said that the police repeated that the cattle were stolen and that he then said "Why are we wasting time, let's go to the guy where the cattle were bought".

[9]         The plaintiff says that the captain then put him inside the Land Cruiser which was then driven by W/0 du Plessis. He sat between the two police officers and Vuyani sat on the back of the Land Cruiser. He wasn't sure whether the driver was also at the back. On their arrival at Tobi's house, the driver stopped at the gate and hooted. The plaintiff says that he then said that they should run to the house because Tobi had earlier said that he was going somewhere. When they got close to the door of the house, Tobi tried to run away but the plaintiff grabbed him. They took him back to the Land Cruiser where the captain asked him where he had got the cattle from. Tobi said that he had made a mistake because he had stolen the cattle.

[10]      The plaintiff testified that they then drove to the police station where a statement was taken from him by a police officer named Kanyile. He told Kanyile that he was worried that the cow which he had previously purchased from Tobi was also stolen. Kanyile said that they would go and check. The plaintiff, Vuyani and the driver Lulu were then put in a cell. Tobi was put in another cell. The next day, which would have been Saturday, 10 October 2009, W/0 du Plessis took the plaintiff from the cell and said that he should show them where this cow was. Another policeman accompanied them in the Land Cruiser which pulled a trailer. According to the plaintiff, they stopped at the gate of his parents' home and that he called his mother and requested her to bring the receipt which he had received for the cow, which he said he showed to the police officers. His mother said that the cow was on the communal grazing area. They drove around the communal grazing area until they found it. The policemen confirmed that the cow was stolen and the plaintiff then said that they should load it. The cow was loaded onto the trailer and they drove back to Barkly East where the plaintiff was put back into the cell.

[11]      All four arrestees were taken to the magistrates' court on Tuesday, 13 October 2009 where Tobi pleaded guilty to stealing the cattle. The plaintiff and the other two were granted ball of R500 each.

[12]      The plaintiff testified that he had to go back to court on numerous occasions for a period of almost a year. At some point he decided to come to Pretoria for a better job and resigned from the furniture store. He was again arrested while in Pretoria on a warrant of arrest for failing to appear in court in Barkly East. He said that when he appeared in court, the magistrate looked at the docket and said that "the case was finished" and gave instructions that arrangements be made for the plaintiff to be returned to Pretoria.

[13]      The plaintiff confirmed in cross-examination that he was aware that a person had to have documents for cattle. He said that this was the reason why Tobi gave him a document for the cow which he bought. With regard to the three heifers, he confirmed that the police asked him for a document. He said that the buyer Vuyani had a document and that he saw him giving it to the police. He further said that Vuyani told him that the document was a receipt, but that he did not check it.

[14]      The plaintiff was further asked why he had gone with Vuyani and Lulu. He said that it was because he expected them to give him something like R500 or R300. He said in re-examination that no amount was mentioned. It was put to him that the gearbox for the Ford Cortina only arrived later. His answer was that he took it there.

[15]      It was put to the plaintiff that Tobi did not try to run away, to which he answered that he did try but that W/0 du Plessis grabbed him. This is contrary to his evidence in chief that he was the one who grabbed Tobi.

[16]      In terms of s 6(1) of the Stock Theft Act any person who sells stock to any other person shall, at the time of delivery of such stock to such other person, furnish such other person with a document stating his full name and address, the required particulars in regard to such stock, the full name and address of the person to whom the stock was sold and the date on which the stock was sold. He must also certify that such stock is his property or that he is duly authorised by the owner thereof to deal with or dispose of it. In terms of s 6(2), no person to whom any stock has been sold shall take delivery of such stock without obtaining such document at the time of delivery. Section 8(1) provides that no person shall drive, convey or transport any stock of which he is not the owner on or along any public road unless he has in his possession a so-called removal certificate issued to him by the owner of such stock or the duly authorised agent of such owner in which the particulars specified in subsections (a) to (g) are provided.

[17]      The first witness for the defendant was Capt. Madelisa. He has served in the SAPS for 38 years, the last 14 of which he has been the stock theft commander in Barkly East. He testified that on 9 October 2016, he received a call from a Mr. Arno Hechter, a farmer in the Langkloof area, who told him that he had identified three of his heifers on a trailer being towed by a broken down Cortina bakkie. Capt. Madelisa proceeded with W/0 du Plessis in a Land Cruiser bakkie to the reported area, which was past Mr. Van Hechter's farm on the R58 road. W/0 du Plessis was the driver of the bakkie.

[18]      On their arrival on the scene, they met Mr. Hechter who showed them the three heifers on the trailer. There were three persons sitting inside the Cortina bakkie. Mr. Van Heerden confirmed that the heifers on the trailer were his and that he had not sold them to anyone or loaded them. He said that the heifers had tattoo marks in their ears. W/O du Plessis then inspected the ears and found Mr. Hechter's tattoo marks.

[19]      Capt. Madelisa then questioned the driver Lulu about the circumstances of Mr. Hechter's animals being on his bakkie. Lulu said that he was transporting the animals on behalf of Vuyani. Capt. Madelisa then also questioned Vuyani, who said that he had bought them from the plaintiff. The captain then asked the plaintiff about the circumstances. The plaintiff said that he had bought the cattle from Mr. Welile Tobi at Kromdraaai. The captain then asked the plaintiff for the necessary documentation. No documentation was produced. The plaintiff referred Capt. Madelisa to Tobi and said that he was the person who had sold the stock.

[20]      Capt. Masilela said that he, W/0 du Plessis and the three occupants of the Cortina then proceeded in the Land Cruiser to Kromdraai. He wanted to get the correct story on the farm as the three occupants were not providing satisfactory answers, the one pointing to the other. The captain and du Plessis sat in front and the other three at the back. Mr. Hechter remained behind.

[21]      On their arrival at the farm, the plaintiff directed them where to stop. W/O du Plessis then walked towards the house, which was about 500 m away, on his own. He returned with Tobi. The captain proceeded to interview Tobi who denied that he knew anything about the sale of the cattle. All of them, including Tobi, then returned to where the cattle had been left behind. Capt. Madelisa there explained to them that Mr. Hechter had not sold the cattle to anyone or given permission for the cattle to be transported and that the three occupants and Tobi had no documentation to prove ownership. He proceeded to arrest all of them in terms of s 41(1)(g) of the CPA. He testified that he could also have arrested them in terms of the Stock Theft Act as they did not give a satisfactory account of the stock suspected to be stolen. Section 2 of the Stock Theft Act provides that any person who is found in possession of stock in regard to which there is a reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession shall be guilty of an offense.

[22]      The captain then transported them to the police station. W/O du Plessis remained behind with the Cortina as it formed part of an exhibit and could not be left there. He was not sure how they got the vehicle going, but Lulu had said that they were waiting for someone to come from Elliott with parts for the vehicle.

[23]      It was put to Capt. Madelisa in cross-examination that because Tobi decided to shoulder the blame, the prosecution withdrew the charges against the others. The captain said that it was not true that Tobi took the blame from the outset. He said that Tobi denied the sale of the stock, wanted to have a lawyer and said that he would make a statement in court. Capt. Masilela also denied that the parts for the broken down bakkie were brought before he arrived on the scene. He said that he picked up from one of the occupants that someone was coming from Elliott with parts.

[24]      Capt. Madelisa was asked in cross-examination what was unsatisfactory about the plaintiff's explanation that the real culprit was Tobi whose name he had said rang a bell as someone who was involved in stock theft. His answer was that no one was taking responsibility of the circumstances surrounding the stolen cattle on the trailer. No one said, for example, "I bought the cattle and here is a receipt for the cattle". Tobi denied any involvement, so there was no account of the possession of the stolen cattle. It was put to the captain that the plaintiff had testified that Tobi had on more than one occasion said that he was the guilty person. The captain answered that the plaintiff was either mistaken or untruthful or was misleading the court.

[25]      It was put to Capt. Madelisa that, at the time when he decided to arrest the plaintiff, he did not apply his mind properly and that the facts on which he arrested the plaintiff did not amount to a reasonable suspicion. This was denied by the captain.

[26]      At the end of Capt. Masilela's cross-examination and re-examination, I referred him to the third paragraph of his handwritten statement deposed to on 30 October 2009 in which he said the following:

 

"Unathi (the plaintiff) then led us to a farm called Kromdraai where he identified Welile Tobi as the person who sold him the three cattle."

 

Capt. Masilela confirmed that that was what the plaintiff told him. He was then asked by counsel for the plaintiff whether the reference to "him" did not refer to Vuyani. His answer was that, in the context of the statement, the cattle were bought by the plaintiff, that he did not make a mistake in what he wrote and that this amounted to an unlawful transaction in respect of Mr. Hechter's cattle. I agree that the statement cannot be read in the manner suggested by plaintiff's counsel.

 

[27]      Warrant officer du Plessis was the next witness who testified for the defendant. He has 28 years service in the SAPS, 27 of which have been in the Stock Theft Unit. His evidence corroborated the evidence of Capt. Madelisa in all material respects. He said he was listening while the captain was questioning the three occupants of the Ford Cortina bakkie in the Xhosa language. He said that he did not speak the language fluently but that he could help himself. He testified that the captain asked the driver who the owner of the cattle was. The driver said it was the passenger on the left­ hand side. The plaintiff was sitting in the middle. The passenger on the left­ hand side said he was a potential buyer from the plaintiff. The plaintiff then said that he had obtained the cattle from a person by the name of Wilile in Kromdraai. W/O du Plessis was unsure whether the plaintiff said that he had bought the cattle. His understanding was that the plaintiff said that he had a deal with Wilile.

[28]      W/O du Plessis confirmed that he and the captain then drove to Kromdraai with the three occupants of the Cortina bakkie sitting at the back of the Land Cruiser. He said that they stopped at Kromdraai alongside the road and that the captain then watched over the three while he went on foot on his own to a farm stall which was about 500 m away. This is where he got hold of Welile Tobi. Tobi's house was near the farm stall. He took Tobi to the Land Cruiser where the captain questioned him about the cattle. Tobi was not willing to talk and denied everything. The captain instructed him to get onto the back of the Land Cruiser and they drove back to the scene. There he also denied everything and was also not able to produce any documentation. The captain then arrested everyone and left with the plaintiff, Vuyani and Tobi. W/0 the du Plessis stayed behind with the driver of the Cortina bakkie who said that someone was bringing a gearbox for the bakkie.

[29]      W/O du Plessis testified that the plaintiff told him the next day or on the Monday that he had exchanged a vehicle for a cow from Tobi. The plaintiff told du Plessis that the cow was in Dordrecht. Du Plessis took the plaintiff there and confiscated the cow. The plaintiff had no documentation for the cow.

[30]      In cross-examination, W/0 du Plessis denied that the plaintiff accompanied him when he went to find Tobi after they had stopped alongside the road at Kromdraai. He said that he would not have taken the plaintiff with him as the plaintiff was not a police officer and that he would also not have taken another suspect with him as the plaintiff or Tobi could then have run away. All three suspects were left with Capt. Madelisa.

[31]      W/0 du Plessis was asked in cross-examination whether he knew where the plaintiff's residence in Dordrecht was. His evidence was that he did not know where it was, that the plaintiff said that he would take him there but that they went straight to the commonage where the cow was found. They did not go to the house.

[32]      It was put to W/O du Plessis that he would not know if a gearbox for the Cortina bakkie arrived. His answer was that he would, as he had waited with the driver until the gearbox arrived with a bakkie belonging to the Belgrave shop. He did not know the person who drove the bakkie who just dropped the gearbox off and left. The name of the Belgrove shop appeared in red on both doors of the bakkie.

[33]      In reply to questions by the court, W/0 du Plessis said that the driver of the bakkie installed the gearbox which had been brought from Elliott. The old gearbox had already been removed by him. They then drove to the police station in Barkly East.

[34]      The jurisdictional requirements for a lawful arrest under section 40(1)(g) are that the arrest must be made by a peace officer; that the arrestor must entertain a suspicion; that the suspicion must be that the suspect was or has been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce; and that the suspicion must be based on reasonable grounds.[1] The issue in the present matter is whether Capt. Madelisa, having regard to the circumstances and information at his disposal, entertained a reasonable suspicion that the plaintiff was in unlawful possession of stock as contemplated in s 41(1)(g) of the CPA.

[35]      In Mabona and Another v Minister of Law and Order[2] the court said the following:

"The test whether a suspicion is reasonably entertained within the meaning of section 40(1)(b)[3] is objective (S v Ne/ and Another 1980 (4) SA 28 (E) at 33H). Would a reasonable man in the second defendant's position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that evaluating his information, a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without a 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 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 not certainty. However the suspicion must be based on solid grounds. Otherwise it will be flighty or arbitrary and not reasonable suspicion."

 

[36]      The information at the disposal of Capt. Masilela was that the cattle were positively identified as belonging to Mr. Hechter; that the driver Lulu told him that the cattle had been bought by Vuyani; that Vuyani said that he had bought the cattle from the plaintiff; that the plaintiff said that he had bought the cattle from Tobi; and that none of them was in possession of the documentation required in terms of ss 6 and 8 of the Stock Theft Act. It is significant that the plaintiff in his evidence did not deny that he told Capt. Masilela that he had bought the cattle from Tobi. He also did not dispute the statement by Vuyani that he (Vuyani) had bought the cattle from the plaintiff. He also did not tell the captain that he had only accompanied Vuyani and the driver to show them the place where he himself had previously bought a cow. His evidence was simply that when the captain said that the cattle were stolen, he said "no, why are we wasting time, let's go to the guy where the cattle were bought. "

[37]      The captain then decided to go to the place where the plaintiff said the cattle had been bought. This he obviously did to check whether or not the cattle had been lawfully sold by Tobi. He was, however, unable to obtain any information from Tobi who refused to speak to the police.

[38]      Capt. Madelisa and W/O du Plessis were both rigorously cross­ examined, but stood their ground. I found them both to be reliable and honest witnesses. It was not suggested on behalf of the plaintiff that they were untruthful. The plaintiff, on the other hand, contradicted himself with regard to his involvement in the transaction. He at first indicated that he had no involvement and only facilitated the introduction of Vuyani to Tobi whilst later saying that he expected to receive something out of the deal. His evidence about fetching the gearbox from Elliott and delivering it before the police arrived cannot be true. If it were true, it would not have been necessary for W/0 du Plessis to remain on the scene with the driver Lulu until the gearbox arrived. W/0 du Plessis would then also not have seen and be able to identify the furniture shop's bakkie.

[39]      On the information available to Capt. Masilela, the reasonable man would, in my view, have had a reasonable suspicion that all three occupants of the Cortina bakkie were in unlawful possession of the three heifers. That being the case, the onus to prove that the discretion was improperly exercised was upon the plaintiff. [4]The plaintiff failed to discharge that onus.

[40]      It was submitted on behalf of the plaintiff that in view of the information provided to Capt. Mabelisa by the driver Lulu that he was contracted by Vuyani to transport the cattle and that Vuyani said that he had bought the cattle from the plaintiff, the plaintiff did not have the intention to possess the cattle. The submission ignores the evidence of Capt. Madelisa that the plaintiff told him that he, the plaintiff, had bought the cattle, which evidence the plaintiff did not dispute and which evidence I accept.

[41]      In the result, the plaintiff's claim is dismissed with costs.

 

 

 

Counsel for plaintiff: Adv. W J Dreyer.

Instructed by: Van Zyl le Roux Inc., Pretoria.

 

Counsel for defendant: Adv. M Barnard.

Instructed by: The State Attorney, Pretoria.

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