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[2014] ZASCA 37
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Macrae and Another v S (93/2013) [2014] ZASCA 37; 2014 (2) SACR 215 (SCA) (28 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 93/2013
In
the matter between:
COLIN
MACRAE
....................................................................................................
First
Appellant
THEONY
ELIZABETH
MACRAE
..................................................................
Second
Appellant
and
THE
STATE
.................................................................................................................
Respondent
Neutral
citation:
Macrae v State
(93/2013)
[2014] ZASCA 37
(28 March 2014)
Coram:
MHLANTLA and WALLIS JJA and MOCUMIE AJA.
Heard
:
24 March 2014
Delivered
:
28 March 2014
Summary:
Criminal law and procedure – baboon –
seizure in terms of ss 20 and 21 of the Criminal Procedure Act 51 of
1977 (CPA)
– obligations of police in respect of seized animal
– theft – requirements – defeating or obstructing
administration
of justice – fair trial where accused not
represented – duties of prosecutor restated.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Webster J, Mngqibisa-Thusi J concurring, sitting on appeal
from the Magistrates’ Court):
The
appeals are upheld and the convictions and sentences on all counts
are set aside
JUDGMENT
Wallis
JA
(
Mhlantla
JA and Mocumie AJA concurring
)
[1]
This is a case about a baboon. By all
accounts, until it apparently met an untimely end, the baboon behaved
impeccably. The saga
has involved a trial in the district court over
four days, an appeal to the full court of the North Gauteng High
Court, a petition
to this court and then this appeal. The expenditure
of time and effort and the costs to the public purse and the
appellants, Dr
and Mrs Macrae, have been considerable. Those include
emotional costs, because for seven and a half years the trial and
their convictions
for defeating or obstructing the administration of
justice and theft of the baboon have hung over their heads. And all
this was
caused by a bureaucratic insistence by the officials of the
Gauteng Directorate Nature Conservation that the baboon be removed
from their possession, where it is common cause it was being properly
cared for. The irony of the situation is that, so we were
informed
from the bar, after the baboon was handed to these officials at the
end of the trial in the district court, it was placed
in a shelter
where it appears to have burned to death in a fire. Had it remained
with the Macraes there is no reason to believe
that it would now be
anything other than hale and hearty. To understand how all this came
about it is necessary to trace the history
in a little detail.
[2]
The
story commences on 10 October 2006, when Mrs Coetzee and Mrs Boshoff,
both nature conservation officers employed by the Directorate
Nature
Conservation of the Gauteng Department for Agriculture, Conservation,
Environment and Land Affairs (the Directorate), found
the baboon and
three ant bears in cages on the property of a Mr Lourens in
Hammanskraal. Mrs Boshoff had earlier obtained a search
warrant from
a magistrate. As only a police official can execute a search
warrant,
[1]
Inspector Grobler of
the South African Police Service (SAPS) accompanied the two nature
conservation officers. The ant bears required
urgent veterinary
treatment at the Johannesburg Zoo, but neither that zoo, nor the
Pretoria Zoo, could accommodate the baboon and
the conservation
officers had not brought sufficient transport crates with them to
carry the baboon safely to the Emerald Zoo,
some 370 kms away in
Vanderbijlpark. Instead it had to be transported in a makeshift
crate.
[3]
As a result of this difficulty Mrs Coetzee
contacted Mrs Macrae, the second appellant, who, together with her
husband, Dr Macrae,
the first appellant, operated a game lodge under
the name Horseback Africa, and asked if they would take the baboon.
The Macraes
had a zoo licence entitling them to be placed in
possession of the baboon and already had a domesticated baboon,
called Jessica.
Mrs Macrae agreed to take the seized baboon and later
that day Mrs Coetzee handed it over to Dr Macrae at the game lodge. I
will
return to the conversation between Mrs Coetzee and Mrs Macrae in
due course.
[4]
The baboon was handed to Dr Macrae, in the
presence of Inspector Grobler, and Mrs Coetzee completed and signed a
document on the
stationery of the Directorate and headed “Certificate
of Handover to Institution’. It identified Horseback Africa as
the institution and recorded that:
‘
I
HEREBY HANDOVER ACCORDING TO TREASURY APPROVAL FROM GAUTENG
PROVINCIAL GOVERNMENT: DIRECTORATE NATURE CONSERVATION THE
UNDERMENTIONED
ANIMAL … TO THE HORSEBACK AFRICA ZOO …’
The
document identified the animal as the baboon and recorded that it had
been seized that day at Hammanskraal.
[5]
Thus far there was no problem. That only
arose the following day when Mrs Hugo, the Assistant Director:
General Investigations in
the Directorate informed Mrs Coetzee that
she had made a mistake in leaving the baboon with the Macraes and
that she would need
to recover it. In the result over the next few
days there were some exchanges between officials of the Directorate
and the Macraes
over the baboon, with the officials demanding its
return and the Macraes contending that it was now theirs.
[6]
On 18 October 2006 this dispute culminated
in Mrs Boshoff and Mrs Eloff, also a nature conservation officer; a
private vet and,
for some unexplained reason, a representative of a
group that deals with elephants; together with Inspector Grobler and
two other
SAPS officers attached to the flying squad, going to
Horseback Africa’s premises to retrieve the baboon. After the
convoy
arrived a confrontation ensued, with Dr Macrae asserting that
the baboon was now theirs and claiming that in the absence of a
warrant
their presence on his property was unlawful. The officials
and the police pushed past him and went to the animal cages, where
they
found Jessica, the other baboon, but not the one they sought. It
had apparently gone for a walk with the Macraes’ son. Tempers
became somewhat heated and in blunt terms Dr Macrae told the
officials and police to leave his property. Instead, Inspector
Grobler,
at the request of Mrs Boshoff, arrested him for obstructing
the administration of justice. According to her she did so because he
would not hand over the baboon or tell them where it was. Mrs Macrae
returned at this stage and tried to intervene in her husband’s
arrest, eventually removing the keys from the ignition of the SAPS
vehicle. This led to her also being arrested.
[7]
Dr and Mrs Macrae were then charged in the
district court at Cullinan with three counts. The first was that they
were both guilty
of ‘obstructing/defeating the
administration of justice’ by refusing to hand over the baboon
to Inspector Grobler
and the nature conservators, ie Mrs Boshoff; by
ordering them to leave the premises and by refusing to disclose the
whereabouts
of the baboon. The second count was directed at Mrs
Macrae alone and was one of ‘attempted obstructing/defeating
the administration
of justice’. The allegation was that she had
refused to hand over the baboon and had grabbed the keys of the SAPS
vehicle
and refused to give them back. Thirdly they were both charged
with the theft of the baboon. The magistrate found them guilty on
those three charges and imposed wholly suspended sentences in respect
of all of them. An appeal to the Gauteng North High Court,
Pretoria
failed and this further appeal is with the leave of this court.
[8]
Throughout the course of this dispute the
Macraes have steadfastly maintained that once Mrs Coetzee handed the
baboon to them it
became theirs, subject only to their being obliged
to produce it as an exhibit at any trial of Mr Lourens, insofar as
that might
become necessary, and to make it available for any
forensic purpose related to any charges against Mr Lourens. They also
accepted
that, if at the end of any such trial the court ordered that
the baboon be returned to Mr Lourens they would return it. No
criticism
was directed at their ability to care properly for the
animal and it was not suggested that they would not co-operate with
the
police, the Directorate and the prosecution service in the
conduct of any trial. Nor was it suggested that by leaving the baboon
in their care this would place the animal or any trial at risk.
[9]
One wonders in those circumstances why it
was thought necessary to interfere with the perfectly satisfactory
arrangements that had
been put in place for the care of the baboon.
The answer is that Mrs Hugo, the Deputy Director of the Directorate,
took the view
that it was contrary to some unspecified treasury
regulations to allow it to remain with the Macraes. Her view was that
the baboon
had to be kept at a treasury-approved zoo pending the
trial, because there was a court case pending, and thereafter, if the
baboon
was forfeited to the State, a decision would be made about its
future. This was why she instructed Mrs Coetzee to retrieve the
baboon and why she was, throughout her dealings with the Macraes,
obdurate that the baboon could not remain with them. It is why
she
instructed Mrs Boshoff to go and fetch the baboon on 18 October 2006.
Mrs Coetzee and Mrs Boshoff for their part adopted the
approach that
the baboon was state property and therefore that the Macraes were
obliged to hand it over on demand to them as the
appropriate
functionaries of the state.
[10]
At
the outset it is necessary to note two points. The first is that, as
all three charges depended on the failure to hand over the
baboon,
there was an improper splitting of charges and an improper
duplication of convictions.
[2]
The second is that at no stage in these proceedings has there been
any attempt to place before any of the courts seized of the
case,
either the relevant provisions of the Nature Conservation Ordinance
12 of 1983 (Transvaal) under which the baboon was seized
in the first
place, or the alleged treasury regulations on which Mrs Hugo relied
in giving instructions that the baboon be removed
from the Macraes.
[11]
So far as the court can ascertain from its
research baboons are listed in Schedule 8 to the Ordinance as
‘problem animals’
and as such are dealt with in Chapter
5, which provides in s 56(1) that if they are found outside a
nature reserve or national
park, they are deemed to be vermin or
animals that cause damage. As such they are liable to be hunted.
Possession of a baboon without
a permit is prohibited under
s 66(1)
(b)
of the Ordinance. That appears to justify the seizure of the baboon,
but it hardly means that it was likely to be an exhibit at
a trial.
After all, if, as presumably was the case, Mr Lourens did not have a
permit to be in possession of the baboon it is hard
to see how the
presence of the baboon could be relevant at his trial for unlawful
possession of the baboon. There was accordingly
no practical reason,
relating to any prosecution of Mr Lourens, for removing the baboon
from the Macraes.
[12]
Because the treasury regulations were not
placed before the trial court or this court we have no way of knowing
whether Mrs Hugo
was correct in her interpretation of them. Her
officers thought that an animal seized under a search warrant became
the property
of the state and had to be handed over for that reason.
That view was plainly wrong in law. The baboon was owned by Mr
Lourens
and would not cease to be his property unless and until it
was forfeited to the state in terms of s 112(1)
(a)
(i)
of the Ordinance. I can understand that the treasury regulations
would deal with the care of state property, but the baboon
was not
state property. If therefore they were applicable it must have been
on some other basis.
[13]
Mrs Hugo did not expressly endorse the view
that the baboon was state property, but said that, because the baboon
was an exhibit
in a pending court case, it had to be held at a
designated zoo. As pointed out earlier it was unlikely that the
baboon would be
needed as an exhibit at the trial, but, even if it
was, the Macraes were willing and able to make arrangements for it to
attend.
Furthermore the police, in the guise of Inspector Grobler,
and not the conservation officers from the Directorate, had seized
the
baboon under a warrant issued in terms of the CPA and were
obliged to deal with it in terms of the CPA. Indeed the argument for
the State in this appeal depended upon the correctness of that
proposition. In those circumstances, it would be unusual, to say
the
least, for treasury regulations issued at a provincial level to
dictate how the police, who function at a national level of
government, were to perform their statutory functions. It follows
that there is every reason to doubt whether Mrs Hugo was correct
in
her understanding of the regulations and whether her actions
consequent upon that understanding were justified.
[14]
Turning to the merits of the convictions,
on the assumption that the issues already discussed can be
disregarded, as they have been
throughout the case’s
peregrinations through the court system, all the charges faced by the
Macraes arose from their failure
to hand the baboon to Mrs Boshoff on
18 October 2006. Even if they were obliged to do so, I
think that on the evidence
their refusal was entirely bona fide and
based on their belief that, subject to the outcome of Mr Lourens’
criminal trial,
the baboon was theirs. That conclusion suffices to
exclude the possibility of their having acted with any criminal
intent and justifies
their acquittal on all of the charges. My
reasons for thinking this are briefly as follows.
[15]
Mrs Macrae testified that when Mrs Coetzee
telephoned her on 10 October and asked if they could accommodate
the baboon she
asked whether they would like a mate for their baboon,
Jessica. That evidence finds support in Mrs Coetzee’s evidence
that
she told Mrs Macrae that after Mr Lourens’ trial, there
was a possibility they could make the baboon available to the Macraes
as a companion for Jessica. The terms of the handover document were
also definitive and not qualified in any way. Mrs Coetzee tried
to
suggest that she qualified it by saying that the arrangement was
temporary, but that was refuted by both Dr and Mrs Macrae,
as well as
their daughter who was present. Their evidence was barely challenged
in cross-examination.
[16]
Furthermore Mrs Macrae said that she
specifically asked whether they needed to amend their existing zoo
permit to include the new
baboon, or whether they needed to record it
as a drop off, and was told by Mrs Coetzee that neither step was
necessary. It would
suffice to say that the magistrate made no
credibility findings against the Macraes and accordingly Mrs Macrae’s
evidence
on this point must be accepted. However, it is supported by
the probabilities. They had previously experienced problems with
officers
from the Directorate and Inspector Grobler over Jessica and
would have been careful to ensure that procedures were correct on
this
occasion. Then there was Mrs Coetzee’s statement in which
she recorded that she had left the baboon with the Macraes ‘Tot
na die hofsaak’ (Until after the court case). In addition she
testified that it was only the following day, when she went
into the
office that Mrs Hugo told her that she had made a mistake and must
retrieve the baboon. That mistake can only have been
that she had
handed the baboon to the Macraes on a permanent basis. Furthermore
the evidence of Mrs Hugo on this point is not wholly
satisfactory.
She had been present when the baboon was seized and was a party to
the arrangement that it be taken and left with
the Macraes. If at the
time she had believed that this was a purely temporary arrangement
for a day or two until alternative arrangements
could be made, it
would be surprising had she not made that clear to both Mrs Coetzee
and Inspector Grobler. Instead her epiphany
appears to have come when
she returned to the office and consulted both the regulations and her
superior in regard to the disposition
of the baboon.
[17]
Lastly on this aspect of the case, if Mrs
Hugo thought that the baboon had been left temporarily with the
Macraes, it is unclear
why she would have told Mrs Coetzee that she
had made a mistake. That would not have been true if this had in fact
been a temporary
arrangement as an emergency measure. Instead one
would have expected her to make a routine enquiry about when Mrs
Coetzee proposed
to collect the baboon and which zoo she intended
taking it to. In my view, weighing the evidence as a whole the
probabilities favoured
the version of the Macraes in regard to the
circumstances in which the baboon was handed to them. At the trial
much was made of
an e-mail Mrs Macrae sent to Mrs Hugo, after Mrs
Coetzee contacted her on 11 October and said that procedures had not
been followed
in handing the baboon to them. However, read in
context, that was nothing more than an attempt by Mrs Macrae to
assist Mrs Coetzee
and Mrs Hugo to get their paperwork in order. It
did not undermine her evidence concerning the basis upon which the
baboon was
delivered to them.
[18]
Having said that the question remains
whether it is correct that the Macraes were under an obligation to
hand the baboon to Mrs
Boshoff on 18 October as she demanded. If
there was no obligation to do so, then the demand was unlawful; Dr
Macrae’s approach
that they were not welcome on his property
was entirely justified; and, because he was acting within his rights
in refusing to
hand over the baboon in response to an unlawful
demand, his arrest was unlawful. Mrs Macrae’s actions in
seeking to come
to his assistance were also lawful and her arrest
unlawful.
[19]
Starting,
as one must, with the charge of theft it was based on the proposition
that the baboon was ‘the property or in the
lawful possession
of Nature Conservation
[3]
and/or
M Boshoff’. However, that was incorrect. Inspector Grobler
seized the baboon, not Mrs Boshoff or Mrs Coetzee. Having
seized it
she was under an obligation in terms of s 30
(c)
of
the CPA either to retain it in police custody, which was not a
practical option, or to ‘make such other arrangements with
regard to the custody thereof as the circumstances may require’.
That is precisely what she did on the advice of Mrs Hugo
(who was
present when the animal was seized) and Mrs Coetzee. She took it to
the Macraes, who were undoubtedly able to care for
it and placed it
in their custody. It is clear that they understood that there was a
potential for there to be a criminal trial
at which the baboon might
need to be produced and that they were aware that unless the baboon
was forfeited to the State, it would
have to be returned to Mr
Lourens. Inspector Grobler had therefore discharged her statutory
obligations. The baboon was in appropriate
safe custody and available
to the police for the purposes of the prosecution of Mr Lourens to
the extent that was necessary.
[20]
The baboon was neither the property of, nor
in the lawful possession of, either ‘Nature Conservation’
or Mrs Boshoff.
It had been in the lawful possession of Inspector
Grobler and she had placed it in the lawful possession of the
Macraes. It had
never been in the possession of the nature
conservation officers. However, Mrs Hugo and the other officials from
the Directorate
were plainly of the view that it was for them to
dispose of the baboon as they deemed appropriate, subject to their
understanding
of the treasury regulations. They were the people who
decided to recover the baboon from the Macraes. They were the ones
who demanded
its return. They were the ones who organised to go to
the Macraes’ property on a mission to recover the baboon. They
organised
for the two officers, Mrs Boshoff and Mrs Eloff, to be
accompanied by a vet, Inspector Grobler and the two flying squad
officers.
On arrival there they were the ones who demanded that the
baboon be handed over. In all this Inspector Grobler played at most a
supporting role. Her own evidence was that the decision of what to do
with the baboon ‘is not for me to make’. Her
complete
subordination to the nature conservation officers is summed up in the
following passage from her evidence:
‘
I
act on what they tell me. If they say the baboon must be taken there
so that they can make a decision on where the baboon must
go, then I
am not going to question that.’
[21]
This entirely misconceived the legal
position. It was Inspector Grobler who had seized the baboon and it
was her responsibility
to make arrangements for its custody pending
any criminal trial. That is why I am doubtful whether the treasury
regulations on
which Mrs Hugo relied in fact had any application to
this situation. As it was for Inspector Grobler to decide where and
in what
circumstances the baboon was to be kept, she, or one of her
colleagues in the SAPS, was the only person who was entitled to
remove
it from the Macraes and then only in circumstances where the
exigencies of the criminal process required it. What she was not
permitted
to do was to take instructions from a third party in the
form of the officials of the Directorate Nature Conservation as to
the
disposal of the baboon.
[22]
I have no doubt that it is correct, as
submitted by Mr Luyt, who appeared for the State, that Inspector
Grobler was entitled to
seek the advice of those officials as to a
suitable place to have the baboon cared for pending a criminal trial.
That is what rendered
the handover to the Macraes lawful. However,
when it came to the removal of the baboon, Inspector Grobler was not
acting on the
advice of the conservation officers about the care of
the baboon, but was assisting them to comply, as they thought, with
treasury
regulations that may or may not have had any application to
the situation. Her purpose was to satisfy their bureaucratic wishes,
not to act in terms of the powers she had under s 30
(c
)
of the CPA. She simply went along with Mrs Boshoff’s request
that she accompany them on the operation to retrieve the baboon
without enquiry. The fact that she took two colleagues from the
flying squad with her shows that they intended a show of force
to
back up the conservation officers in retrieving the baboon.
Tellingly, when she was being cross-examined by Mrs Macrae, she
was
asked why the baboon needed to be removed from the Macraes and the
magistrate interposed:
‘
I
do not think that is relevant to her in terms of whether it was
removed or not, so to her it might not mean anything. She is a
police
officer who has been called up to say: “Help us to go there”.’
The magistrate went
on to say:
‘
Whether
it is removed or not, it is none of her business.’
Notwithstanding
her claimed familiarity with the provisions of the CPA Inspector
Grobler did not demur at this intervention from
the court or assert
that she had in fact exercised any independent judgment in regard to
caring for the baboon.
[23]
The end result is that the charge of theft
was utterly misconceived. The baboon was not, and never had been,
either owned by or
in the lawful possession of either ‘Nature
Conservation’ or Mrs Boshoff. In those circumstances Mr Luyt
accepted that
the conviction for theft could not stand. Of course,
once the demands made by Mrs Boshoff for the return of the baboon
lacked a
legal foundation so did the arrest of Dr Macrae for refusing
to hand it over. Mrs Macrae’s intervention to try and assist
her husband was likewise not unlawful and her arrest also lacked any
legal foundation. It follows that the appeals must succeed
and their
convictions and sentences must be set aside.
[24]
There
is, however, a further ground on which the appeals would in any event
have to have succeeded. The Macraes chose to represent
themselves at
the trial, notwithstanding the magistrate’s suggestion that
they secure legal representation. However, once
that was the case,
the magistrate was under a special duty to ensure that they had a
fair trial. When asked whether they had in
fact had a fair trial, Mr
Luyt’s response was: ‘Not really.’ That concession
was undoubtedly correct. The problems
commenced at the outset when
they were confronted with charges improperly separated
[4]
and continued when Dr Macrae was invited to cross-examine the first
witness Mrs Coetzee. The magistrate did not explain the purposes
of
cross-examination or draw his attention to the need to put to
witnesses where his and his wife’s version of events differed
from theirs. This was highly relevant for the following reasons.
[25]
I have already mentioned that, when the
nature conservation officers found the animals with Mr Lourens, they
did not have the means
to transport the baboon for any distance and
they needed to deal with it quickly. That is why the Macraes were
approached. Of vital
importance in that regard is what they were told
when approached. I have dealt with this in paras 15 to 17. The
prosecutor challenged
Mrs Macrae’s evidence on her conversation
with Mrs Coetzee. She asked her why this evidence had not been put to
Mrs Coetzee.
The magistrate then intervened to say that he had
underlined this evidence, as a matter not put to the earlier witness.
He did
the same again when Mrs Macrae testified that when the baboon
was handed over she asked if there was anything further that had to
be done, either to amend their existing permit or to register the
animal as a drop off and was told that nothing more was necessary.
He
said that this was the third time this had occurred. However, as Mrs
Macrae had not been warned of the need to put disputed
matters to
witnesses that was blatantly unfair of him, as was the
cross-examination by the prosecutor. It was even more unfair
in view
of the fact that in crucial respects Mrs Coetzee’s evidence
corroborated that of Mrs Macrae.
[26]
It was a central plank of the defence being
raised by the Macraes that what happened when the baboon was dropped
off with them was
in accordance with past practice in other cases
where nature conservation officers seized animals. However, when Dr
Macrae asked
that the documents bearing on such cases be disclosed to
him, the magistrate explained that he would only adjudicate on what
happened
on the incident on 18 October. For the same reason he did
not accede to the request that Dr Macrae be furnished with the
affidavit
by Mrs Boshoff when she applied for the search warrant.
Every time either Dr Macrae or Mrs Macrae tried to deal with these
matters
the magistrate told them that it was not relevant because he
was only concerned with the events of 18 October. That was wrong
and it prevented the Macraes from advancing their defence properly.
[27]
There
were problems in other respects. At the end of his evidence the
magistrate questioned Dr Macrae at length and his questions
cover 10
pages in the record. That was inappropriate. Dr and Mrs Macrae’s
daughter was called to give evidence and the magistrate
was quick to
say that he must not put answers in her mouth and that he could not
put questions to his own witness.
[5]
Mrs Coetzee’s statement was clearly material as were the
statements of other conservation officials. Yet the magistrate made
no attempt to ensure that they were made exhibits. All that he did
was to tell them that they should not cross-examine on a statement,
without first proving its authenticity, which was a bizarre
proposition bearing in mind that the statements would have been
furnished
to the Macraes by the prosecution. When Dr Macrae sought to
cross-examine Mrs Boshoff on what was in Mrs Eloff’s statement
he stopped him from doing so, on the ground that Mrs Eloff was not
going to be called as a witness. That too was clearly wrong.
On other
occasions, such as the one mentioned in para 18 above, he cut short
legitimate cross-examination.
[28]
The
above more than suffices to demonstrate that the Macraes did not have
a fair trial and that the concession by Mr Luyt was well-founded.
What is inexplicable in those circumstances is why he in this court,
and his predecessor in the full court, did not make that concession
at the outset. Instead the office of the Director of Public
Prosecutions not only pursued the prosecution, but defended the
conviction
in the full court and resisted leave to appeal being
granted to this court. The concession was only forthcoming at the end
of Mr
Luyt’s argument. It needs to be stressed once again that
the duty of prosecutors is not to secure a conviction at all costs
or
to defend convictions once obtained. Their duty is to see that so far
as possible justice is done. As Jones J expressed it in
S
v Fani
:
[6]
‘
The
object of criminal proceedings in our law has never been to secure a
conviction at all costs. The duty of the prosecution is
to present
all the facts in an objective and fair manner so as to place the
court in a position to arrive at the truth.’
Where
an appeal is being argued one expects the prosecutor to do so in an
objective and fair manner and, if satisfied that the conviction
is
flawed, to draw that to the attention of the court, particularly
where the flaw goes to the heart of the fairness of the trial
at
which the accused person was convicted.
[29]
Before concluding it is necessary for me to
say that the course of events in this case is a classic instance of
bureaucratic overreach.
Whatever the merits of Mrs Hugo’s
concerns it was clear that there was a genuine disagreement with the
Macraes over the status
of the baboon. That did not warrant sending a
convoy including three armed police officers and a vet with a gun to
dart the animal
to collect the baboon. The image is redolent of an
American police drama rather than a dispute over the impact of
treasury regulations
on the care and custody of a baboon. The
behaviour of Mrs Boshoff in demanding that Dr Macrae hand over the
baboon was calculated
to put his back, up as it did. There was no
attempt to engage in a courteous fashion with the Macraes and resolve
their concerns.
Throughout, the conservation officials, starting with
Mrs Hugo, obdurately insisted that they were entitled to the baboon
and demanded
that it be given to them. On the day in question they
were supported by an implicit threat of force from the police. Their
approach
was to assert that they were entitled to the baboon and
insist that Dr Macrae submit to their demands. It seems reasonably
clear
that if the baboon had been in one of the cages they would have
taken it forcibly.
[30]
The conservation officers knew that Dr
Macrae would resist their demands and were aware of his basis for
doing so. If there was
some real and pressing need for them to
retrieve the baboon they could have approached a court on notice for
a suitable order.
If the matter was urgent that could be accommodated
within the ordinary court processes. Then their entitlement to the
baboon would
have been tested in the appropriate way. Instead, they
resorted to force and wound up arresting two perfectly peaceable
citizens
for no good reason, the arrest in Mrs Macrae’s being
preceded by Inspector Grobler grabbing her by the collar and shaking
her while screaming at her. That is not the kind of conduct we expect
of our public officials. When that conduct was sought to
be made the
subject of a criminal charge the prosecutor, or her appropriate
superior, should have exercised a sensible discretion
and declined to
prosecute. Had they done so, this case, which does no credit to the
conservation officers and police involved or
to the prosecution
service that has pursued it to this court, would have been still
born.
[31]
The appeals are upheld and the convictions and sentences on all
counts are set aside.
M J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellant: S J
Maritz SC
Instructed by:
J P A Venter, Menlo
Park, Pretoria and
Symington
& De Kok, Bloemfontein
For
respondent: P C B Luyt
Instructed
by:
Director
of Public Prosecutions
Pretoria
and Bloemfontein.
[1]
Section 21(2) of the Criminal Procedure Act 51 of 1977 (the CPA).
[2]
Maseti
v S
[2014]
1 All SA 420
(SCA) para 3.
[3]
I assume that by ‘Nature Conservation’ the person who
drafted the charge had in mind the Directorate Nature Conservation
or the provincial department of which it formed a part and that this
was simply sloppy drafting.
[4]
The magistrate should have intervened to remedy this at the outset.
S
v Makazela
1965 (3) SA 675 (N).
[5]
The magistrate also told him that he could not object to the
questions being put to Mrs Macrae even though the purpose of the
objection was to correct a factual error on the part of the
prosecutor.
[6]
S
v Fani and others
1994
(3) SA 619
(E) at 621I-J.