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IN THE NORTH WEST HIGH COURT, MAFIKENG
In the matter between:
MARITZ DITEBOGO RAYMOND
AND
MINISTER OF POLICE
DATE OF HEARING
DATE OF JUDGMENT
FOR THE APPLICANT
FOR THE RESPONDENT
JUDGMENT
CASE NO: 661/2021
Plaintiff
Defendant
13 NOVEMBER 2024
15 JANUARY 2025
ADV.MAREE
ADV. MKATSHWA
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives via email. The date and time for
hand-down is deemed to be 1 0h00 on 15 January 2025.
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Resultantly, the following order is made:
(i) The defendant is ordered to pay an amount of R350 000.00 to the
plaintiff as damages for unlawful arrest and detention.
(ii) The defendant is ordered to pay interest on the aforementioned
amount of R350 000.00 from date of this judgment until date of
final payment, at the applicable prescribed rate.
(iii) The defendant is ordered to pay the cost of suit, on the High
Court scale, Scale B.
HENDRICKS JP
Introduction
[1] Mr. Ditebogo Raymond Maritz ('plaintiff') instituted an action for damages
against the Minister of Police ('defendant') for unlawful arrest and
detention for the period 08 September to 01 October 2018, on a charge
of stock theft. The defendant bears the onus to justify the lawfulness of
the arrest, as an arrest is prima facie unlawful and an invasion of a
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person's constitutional right to freedom and liberty. The defendant also
bears the duty to begin.
[2] The defendant called Sergeant Metsi ('Metsi') to testify on his behalf. His
evidence are as follows. On Friday, 08 September 2018, he was on duty
with his colleague Constable Kgomotso. He received a call from Mr.
Anton Barnard ('Barnard') who made a report to him that there were
persons slaughtering his mother-in-law's cow on her farm. He and his
colleague then went to the farm. Upon arrival, he found Barnard and his
employees at a half-skinned cow carcass. There was also a man by the
name of Thato Lekame, who was tied with cable ties around his wrists
and feet. He also had a rope tied around his neck and fastened to the
half-skinned cow carcass.
[3] Thato, when asked about what happened, confessed that he and three
other men stole the cow and were busy slaughtering it. Thato was untied
and placed in the police van. Barnard told Metsi that a security officer and
Warrant Officer (W/O) Maritz, a police official, are chasing after the other
suspects that fled the scene. After a passage of time, the security officer
and W/O Maritz arrived at the scene. They were in the company of the
suspects whom they allegedly chased after in hot pursuit. The suspects
were the plaintiff and one Letlabeng. After being questioned, they were
placed inside a van. They were transported to Ganyesa police station
where they were processed. Thereafter they were transported to
Morokweng police station where they were detained on a charge of stock
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theft. They were taken to court the following Monday, 10 September
2018. Metsi was the only witness called by the defendant. The defendant
then closed its case.
[4] The plaintiff testified and made it common cause that he was arrested on
08 September 2018. His sequence as to how the events of the day
unfolded are as follows. He, Thato and Letlobeng were on their way to a
nearby farm in search of employment as farm workers. En route they
decided to take a shortcut and walk through a neighboring farm. This was
a route usually taken by people who were walking on foot and use as a
thorough-fare to get to the other side of the farm. Five other people were
also using this thorough-fare on that day.
[5] Whilst still walking, they saw a motor vehicle branded "Plaaswag"
approaching. A gunshot was discharged from this motor vehicle. They
ran away in different directions. He was followed. Three man, to wit a
caucation and two black men, apprehended him. They tied his hands and
placed him on the back of an Isuzu van. That is not the van branded
"Plaaswag". He was taken to the scene where the cow was slaughtered.
There he found Thato, whose hands and feet were tied and he was tied
with a rope to the cow carcass, that was half-skinned. He tried to explain
his innocence but the police did not want to listen. They were transported
to the police station and ultimately detained. They were taken to court the
following Monday, 10 September 2018, but did not appear as the court
officials had already knocked-off duty. When he re-appeared before
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court, he was informed that the police oppose his release on bail. The
matter was remanded on several occasions. Eventually on 01 October
2018, he was admitted to bail. That concluded the evidence presented
by the plaintiff in his case. No other witness(es) were called and the
plaintiff's case was closed.
[6] Its quite apparent that these are two diametrically opposed and
conflicting versions that cannot both be true. This Court will be guided by
the principles enunciated in the case of Stellenbosch Farmers' Winery
Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA
11 (SCA) at para [5], where the following is stated:
"[5] On the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So too on a number of peripheral areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses; (b) their reliability; and
(c) the probabilities. As to (a), the court's finding on the credibility of a
particular witness will depend on its impression about the veracity of
the witness. That in turn will depend on a variety of subsidiary factors,
not necessarily in order of importance, such as (i) the witness's
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions, (v)
the probability or improbability of particular aspects of his version, (vi)
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the calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness's reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience
or observe the event in question and (ii) the qualitY, integrity and
independence of his recall thereof As to (c), this necessitates an
analysis and evaluation of the probability or improbability of each
party's version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will doubtless be
the rare one, occurs when a court's credibility findings compel it in one
direction and its evaluation of the general probabilities in another. The
more convincing the former, the less convincing will be the latter. But
when all factors are equipoised probabilities prevail."
[7] It is prudent to highlight the fact that it is common cause that the plaintiff
was arrested on 08 September 2018 on a charge of sock theft and
detained until 01 October 2018. The manner of the arrest and the
lawfulness thereof is disputed. Of importance is the fact that the plaintiff
was not arrested at the scene where the half-skinned cow carcass was.
He was apparently apprehended by a Warrant Officer, shearing the same
surname of Maritz, and a security official. After being apprehended, he
was taken to the scene where the half-skinned cow carcass was. His
arrest was therefore at the place where he was apprehended by Warrant
Officer ("W/O") Maritz.
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[8] W/O Maritz was not called to testify. There is therefore no evidence
placed before this Court as to how W/O Maritz affected the arrest on the
plaintiff and how that process unfolded. On the evidence presented by
Metsi, it was accepted by both counsel that Metsi was the arresting officer
and not W/O Maritz. In my view, this is incorrect. The plaintiff's liberty was
removed the minute he was apprehended and not after he was taken to
the scene where the half-skinned cow carcass was. This is critically
important. There is no evidence that the minute the plaintiff was arrested,
W/O Maritz explained his section 35 constitutional rights to him. In my
view, this should have happened. It however does not end there.
[9] When the plaintiff was taken to the scene where the half-skinned cow
carcass was, he was according to Metsi asked for an explanation to
determine whether his explanation was reasonable. According to Metsi
he could not proffer any reasonable explanation. According to the
plaintiff, when he attempted to explain his innocence, he was told to keep
quiet and he reluctantly obliged. He was then transported to the police
station where he was made to sign a 'Notice of Rights' document, which
was not explained to him nor did he read it. He was then detained.
[1 O] It is trite that an arrest can be affected on a suspect who is suspected of
stock theft, without a warrant of arrest been obtained. Section 40 (1) (g)
of the Criminal Procedure Act 51 of 1977, as amended, provide:
"40 Arrest by peace officer without warrant
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(1) A peace officer may without warrant arrest any person -
(g) 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;"
(my own underlining)
[11] Section 2 of the Stock Theft Act 57 of 1959 creates the offence of failure
to give a satisfactory account of possession of stock or produce, in that
any person who is found in possession of stock or produce 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 offence. In terms of section 6 of the Stock Theft Act 57 of 1959,
failure to furnish documents of identification by a person who disposes of
stock to another shall be guilty of an offence.
[12] It need to be emphasized that the plaintiff was not found in possession of
the half-skinned cow carcass. He was not even in the immediate vicinity
of it. The only evidence that was presented about the apprehension of
the plaintiff is that of Metsi. Metsi received a report from Barnard. The
said Barnard was not called as a witness, neither was any of his
employees called as witnesses. Ideally, they would be best suited to
testify and explain the circumstances surrounding the slaughtering and
skinning of the cow. The failure on the part of the defendant to call any
or all of them as (a) witness( es ), are indeed fatal to the defendant's case.
Furthermore, to add to this, W/O Maritz and the security officer who went
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in pursuit of the alleged perpetrators of the crime of stock theft, were also
not called as witnesses to testify on behalf of the defendant. This is
equally fatal to the defendant's case. Undoubtedly, all these witnesses or
any one of them could have enlightened this Court with regard to the
circumstance of the arrest of the plaintiff.
[13] Insofar as any reliance can be placed on the evidence of Metsi, who
claimed to be the arresting officer, the following. Metsi relied on the report
made by one Barnard to him. According to Barnard, his mother-in-law is
the owner of the farm and the cow that was slaughtered. No enquiries
were made about the whereabouts of the owner of the cow. No further
investigations were conducted to determine the wrongfulness of the
slaughtering of the cow. Metsi relied on the say-so of Barnard, who even
allegedly showed him an ear-tag of the cow. The evidence of Barnard or
even his mother-in-law is crucial in this regard.
[14] Metsi's evidence is also lacking as to how he satisfied himself that the
plaintiff was indeed involved in the slaughtering and skinning of the cow,
bearing in mind that the plaintiff was not arrested at the scene. He relied
solely on the report he received from Barnard and conducted no further
investigation of his own. He did not even obtain a written statement from
Barnard or any of his employees, nor from W/O Maritz and the security
officer. No enquiries whatsoever were made as to how the plaintiff was
linked to the slaughtering and skinning of the cow. The fact that Thato
allegedly admitted that they stole the cow and slaughtered it, was also
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not investigated and taken any further. This, once again, is crucial
evidence that was not investigated. No evidence was also tendered by
the investigating officer about the investigations that (s)he conducted in
this matter. Much critism can be levelled against the manner in which this
matter was handled from the initial stage of the arrest of the plaintiff, up
until and including how the trial was conducted.
[15] It is trite law that the following jurisdictional facts must be proven to
substantiate a defence premised on section 41 (1) (g), namely:
(i) the arrestor must be a police officer;
(ii) the arrestor must entertain a suspicion;
(iii) the suspicion must be that the arrestee committed an offence
referred to in section 2 of the Stock Theft Act 57 of 1959;
(iv) the suspicion must be that the arrestee was or is in the unlawful
possession of stock or produce as defined in any law relating to the
theft of stock or produce;
(v) the suspicion must be based on reasonable grounds.
[16] The version of the plaintiff was to a large extend uncontested. His version
is also more probable if regard is had to the probabilities. His evidence is
uncontroverted that he, Thato and Lethobeng were taking a short-cut
using the thorough-fare frequently used, not only by them. At least five
(5) other people were also seen doing the same. This is not disputed.
They were approached and apprehended at a place different from the
scene of crime, where the half-skinned cow carcass was. As to the
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circumstances of his arrest, there was no evidence presented to disprove
his version. Not Barnard nor his employees, W/O Maritz, the security
official or even Metsi's colleague, Constable Kgomotso who
accompanied him, were called to testify. There was no evidence
presented that linked the plaintiff to the commission of the offence. For
example, there was no evidence that his hands or even his clothes were
bloodstained, as can be expected when a cow is slaughtered and half
skinned.
[17] There is also a claim for unlawful detention. No evidence whatsoever was
presented with regard to the lawfulness or otherwise of the detention of
the plaintiff. The plaintiff allege that he was detained following his arrest
on 08 September 2018 at approximately 17h40 and only admitted to bail
on 01 October 2018 at 11 h00. This version is uncontested. So too, is it
uncontested that when he was taken to court on Monday, 10 September
2018, there were no court officials present or on duty and that he was
further detained. Further, that his bail will be opposed. The matter was
remanded on several occasions and he was ultimately admitted to bail
on 01 October 2018. All this is undisputed.
[18] The conditions under which he was detained is also undisputed. It was a
small cell which he shared with other incarcerated persons. The toilet
area does not allow for any privacy, and were dysfunctional at times. The
food that was provided was unpalatable. He could not exercise nor was
any reading material provided to him.
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[19] I am of the considered view that the defendant did not discharge the onus
resting on him to prove, on a balance of probabilities, that the arrest of
the plaintiff was lawful, as enjoined by law. [Section 40 (1) (g)]. No proper
investigations were conducted in the exercise if his discretion by Metsi,
who is believed to be the arresting police officer. Metsi accepted,
unreservedly so, the report made to him by Barnard. None of the other
possible witnesses were questioned by Metsi, as to how the plaintiff was
apprehended and brought to him, before he placed him in the van. Metsi
did not exercise any discretion whatsoever whether or not to arrest the
plaintiff. The plaintiff was, based solely on the report by Barnard,
summarily placed in the police van and later locked-up. The unlawfulness
of the detention of the plaintiff was also unchallenged. In the absence of
any evidence to the contrary, I am satisfied that the arrest and
subsequent detention of the plaintiff was unlawful.
[20] Insofar as quantum is concerned, the plaintiff was detained for twenty
three (23) days. This entire period must be taken into consideration when
determining the amount to be awarded as compensation, as was stated
in De Klerk v Minister of Police 2021 (4) SA 585 (CC). However, the
purpose of compensation is not to enrich the plaintiff but to pay him a
solatium for damages suffered as a result of the unlawful arrest and
detention. The personal circumstances of the plaintiff must be taken into
account. He is 34 years of age, unmarried, the father of two minor
children who are attending primary school. He was employed as a farm
worker. His earnings as a farm worker is however unknown. The
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deprivation of the liberty of a person is very serious. High premiums
should be placed on personal liberty.
See: Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).
[21] I am of the view that an amount of R350 000.00 would be fair, just and
equitable under the circumstances of this case. Insofar as interests are
concerned, it should be awarded from the date of this judgment. Costs
should follow the result and be awarded in favour of the successful
litigant, the plaintiff.
Order
[22] Resultantly, the following order is made:
(i) The defendant is ordered to pay an amount of R350 000.00 to the
plaintiff as damages for unlawful arrest and detention.
(ii) The defendant is ordered to pay interest on the aforementioned
amount of R350 000.00 from date of this judgment until date of final
payment, at the applicable prescribed rate.
(iii) The defendant is ordered to pay the cost of suit, on the High Court
scale, Scale B.
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RD HENDRICKS
JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
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