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Mosothwane v Attorney General (CVHGB-000818-11) [2013] BWHC 30 (1 April 2013)

MMB Advocates > Uncategorized  > Mosothwane v Attorney General (CVHGB-000818-11) [2013] BWHC 30 (1 April 2013)

Mosothwane v Attorney General (CVHGB-000818-11) [2013] BWHC 30 (1 April 2013)

personal/private details of parties or witnesses have been
redacted from this document in compliance with the law




01 APRIL 2013

In the matter




capacity of the Botswana Government)

Mr. Attorney O.
Bvindi for the Plaintiff1

Mr. Attorney B.G
Mosweu for the Defendant11



1. The Plaintiff
claims against the Defendant the following:

(a) Damages for
malicious prosecution in the sum of P100,000.00;

(b) Damages for
unlawful arrest and detention in the sum of P200.00;

(c) PI5 000.00 being
compensation for the Plaintiffs bull which died while in police

(d) Interest thereon
at the rate of 10% from the date of judgment to the date of full and
final payment;

(e) Costs of suit

2. In the minute
singed by the parties on 26th August 2011, the partied agreed as


5.1 Plaintiff was
arrested and detained at Mochudi Police Station.

5.2 Plaintiff was
charged with stock theft.

5.3 Plaintiff
appeared at Mochudi Magistrates’ Court for mention on two
occasions. A trial date on the second mention date
was set.

5.4 On the date of
the trial charges against the Plaintiff were withdrawn completely.”

3. The above agreed
facts were repeated at paragraph 5 of another minute of the meeting
of the parties filed on 21 September 2011.
The agreed facts were
repeated at paragraph 3 and subparagraphs thereunder of the parties
final pre-trial draft order, which was
incorporated into the final
pre-trial Order. The issues for determination were set out at
paragraphs 1 to 2.4 of the draft order,
which was also adopted by the
court as reproduced below:


1.1 Whether or not
there was unlawful arrest and detention of the Plaintiff hy the
Botswana Police;

1.2 Whether or not
there was malicious prosecution of the Plaintiff by the Defendant;

1.3 Whether or not
the Defendant is liable for the death of the Plaintiff’s bull
in its custody;

1.4 Whether or not
the Plaintiff is entitled to damages, and if so, the quantum of such


2.1 Whether or not
there was reasonable and probable cause of the arrest and detention
of the Plaintiff by the Botswana Police;

2.2 Whether or not
there was reason to prosecute the Plaintiff and whether or not such
prosecution was actuated by malice;

2.3 Whether or not
the Defendant is responsible for the death in its custody of the
Plaintiff’s bull;

2.4 Whether or not
the Plaintiff suffered damages as a result of the above events or at
all. ”

4. The 3rd claim, in
respect of a dead bull should really have been disposed off during
the pleading stage. However, I inherited
the matter when a trial date
had already been set and I had hoped that the Plaintiff will amend
his declaration but this was not

5. The Plaintiff
pleaded, in respect of the bull, as follows:

“13 The bull
in question was seized by the Police as part of their investigations.
Attached hereto and marked Annexure “El
” is the
application for an order in terms of section 57 of the Criminal
Procedure and Evidence Act, Cap 08:02 by Constable
Matlhaku on 27th
January 2010. The application confirms that the bull, as shown in
Annexure “E2” which is a description
of the property
seized, was seized on 22nd. The Judicial officer granted the order on
27th January 2010.

14 It is also
apparent from the same form that the judicial officer granted the
order for the bull to be burnt after its death.
It goes without
saying that the bull perished while in police custody, that since the
State could not give back the bull to the
Plaintiff at the conclusion
of the proceedings, he has to be compensated for same.

15 Plaintiff sourced
three quotations for the bull. The quotations are attached and marked
“FI”, “F2” and
“F3” respectively.
The Plaintiff has chosen the lowest quote of PI 5 000.00 as the one
for which to base his claim
on. ”

6. Pleaded in this
fashion, it is quite obvious that the Plaintiff has failed to
disclose any cause of action. There is no allegation
that the
Defendant was at fault in the death of the impounded bull. For the
Plaintiff to succeed, he must allege and prove wrongfulness
on the
part of the Defendant. In my opinion it must be alleged that the
death of the bull is attributable to the unlawful and/or
acts of the Defendant.

7. The Plaintiff in
giving evidence did not go beyond what was pleaded and was content
that the bull died in the custody of the
police and that by virtue of
that death he is entitled to compensation. This cannot be enough in a
delictual claim. The Plaintiff
went further to rely on two quotations
for the price of different breed of unspecified age and weight, being
a Brahman bull valued
at PI8 000.00 and a Simmental bull valued at
P20 000.00. The two quotations were obtained on 19 May 2010 when the
dispute between
the parties in respect of the Tswana bull arose in 22
January 2010. No evidence was put before the court as to how the
price was
arrived at. In the circumstances, the Plaintiffs claim C
should have collapsed at the close of the Plaintiffs case. See Maun
Development Trust (Pty) Ltd t/a Yokohama Car Sales &
Fitment Centre & Another 2008 (1) BLR 393 (CA) at 396 to 398;
Mosinyi S. Ntobedzi V Selebaleng Thupa & Another CCF 340/2001 at
pages 9-12.

8. The Defendant
adduced expert evidence which could not be effectively challenged. I
am satisfied with the expertise and experience
of the Defence Witness
no. 1, Evans Monowe (PW1), who is a retired employee of the Ministry
of Agriculture, who possesses a Certificate
in Animal Health and
Production from Botswana Agricultural College. This witness has
worked for the government until he retired
after a period of 10 years
when he ventured into a business of operation of an abattoir and
butchery. He examined the bull in question
and diagnosed that it
suffered from jaundice, attributable to failure to excrete urine and
extreme stress. The witness testified
that given the clinical signs
observed the life of the animal was limited, and indeed it died
within 12 hours of examination. It
was these negative vital signs
that prompted the witness to call the police, who then impounded the
animal but it was found dead
the following day.

9. Now, coming to
the second claim, unlawful arrest and detention, it is the Plaintiffs
case that the police had no reason whatsoever
to arrest and detain
him as he adequately explained how he came into possession and
ownership of the bull in question. He said
he bought the animal
whilst it was young and still a calf from Benny Lebotse and as proof
of the purchase he produced a document
marked Exhibit PI issued by
the Lentsweletau Customary Court on 5 January 2007, which document
was accepted by the police on Monday
25 January 2010 and caused them
to release him from custody. It is common cause that the Plaintiff
was arrested and detained on
Friday 22 January 2010.

10. The Plaintiff
faults the police for refusing to take him to his home to produce the
evidence of ownership, and further for refusing
to accept Exhibit PI
on presentation by his wife on Friday 22 January 2010 after working
hours and on Saturday on the basis that
the officers then in charge
of the case were off duty.

11. The documents,
“Exhibit PI” is reproduced below:

COURT Box 44













12. On the face of
that document it is clear that it does not purport to be a sale
agreement or evidence of passage of ownership
between Benny Lebotse
and the Plaintiff, who signed therein as a witness, to the former,
who is stated as the owner of the animals
therein stated.

13. The Plaintiff
further relied on a statement he gave the police as constituting a
reasonable explanation of the alleged suspicion
in respect of the
bull. The suspicion included Plaintiffs new brand mark, a newly
severed ear, which was viewed as destruction
of an earmark for what
by all standards was an adult bull. The other features included the
failure by the Plaintiff to register
the bull for the purpose of
sale. In short the Plaintiff explained that his bull got astray
before it was branded and only recovered
after several years when it
was old whereon he branded it in December 2009. What looked new ear
marks and defacing of ear marks,
he attributed to an attack upon the
bull by his dogs which allegedly bite the ears of the bull.

14. The Plaintiff
called two of his alleged neighbours as witnesses but these did not
add any value at all as their evidence was
encored on what the
Plaintiff told them, namely, that he bought the animal in question
from Benny Lebotse. The Plaintiffs 1st witness,

LEBEKO, (PW2) went
as far as to contradict the Plaintiff in so far as he said he found
the Plaintiff with the police at his home
on 22 January 2010. It is
common cause that the Plaintiff was arrested on 22 January 2010 at
the kraal of Evans Monowe and was
detained until his release on 25
January 2010.

15. The defence
called three witnesses, two of whom are the Investigating Officer who
arrested the Plaintiff and a Police Prosecutor
who prosecuted the
Plaintiff. The first to testify is EVANS MONOWE, (DW1), who was
offered to buy the bull in question. PW1 had
had previous business
dealings with the Plaintiff. According to him the plaintiff just
dropped off the bull at his kraal without
his authorisation on 19
January 2010. The witness said they were supposed to meet the
previous day but the Plaintiff failed to
show up.

16. On the 19
January 2010 he and the Plaintiff agreed, over the telephone to meet
at the Customary Court (Kgotla) to have the animal
cleared by the
police but the Plaintiff did not turn up. According to DW1, the
Plaintiff gave various conflicting statements about
his whereabouts
and ultimately there was breakdown of communication with the phone
either off air or ringing without being answered.

17. DW1 said the
following day he was phoned by one of his employees who was concerned
that the bull appeared sick. Upon proceeding
to his kraal and
examining the animal, he found it to be in a life threatening
condition. Fearing that the animal might die in
his possession and
realizing the suspicious circumstance under which it was brought,
namely, the fact that it was not registered
or cleared by the
customary court police as was the practice, the defaced ear marks and
a new brand mark, he contacted the police.

18. The second
defence witness, DISTANCE RAMONOBANE THOWANE (DW2), responded to the
complaint. DW2 also observed that the bull had
just recently been
branded, the ear marks were defaced and the animal appeared unwell.

19. Upon the arrival
of the Plaintiff, DW2 questioned him but according to him, the latter
could not give any satisfactory explanation.
DW2 was convinced that
the Plaintiffs answers were evasive. For instance on being asked who
of his neighbours knew the bull, he
is alleged to have said the
mother of the bull died sometime back.

20. DW2 decided to
conduct further investigations given his observations of the bull and
the inconsistent answers given by the Plaintiff.
He said he feared
that the Plaintiff might interfere with the investigations and
accordingly decided to detain him.

21. I had the
opportunity to observe all the witnesses who testified. I was not
impressed by the Plaintiff at all. On many occasions
he would not
answer simple questions which require a yes or no answer. I got the
impression that he is an evasive witness and clearly
unreliable. This
is a man who knew a well established practice of registering animals
at the Customary Court for purposes of sale
or change of ownership
yet he set out to sell a bull without following the known procedure.
Even upon being called to do so, he
avoided the same for several
days. He tendered to the police as proof of ownership of the bull, a
document which only showed that
he was a witness that Benny Lebotse
was the owner of described animals. I am not in any doubt that a true
owner would have directed
the police to the people who knew the
animal including the herdboy.

22. I found the
witnesses called by the defence more reliable. Each one of such
witnesses gave simple and straightforward answers
and they were
willing to make a concession where one was due.

23. I am satisfied
that the police had a reasonable cause for arresting the Plaintiff
and so is his detention. In Botswana livestock
form the bedrock of
the rural economy and many families are dependant on it. The threat
to the economy of the rural people of this
land has been recognised
by Parliament by introducing enhanced penalties for stock theft. I
reproduce section 3,4,7 of the Stock
Theft Act, CAP. 09:01.

“3. (1) Any
person who steals any stock or produce, or receives any stock or
produce knowing or having reason to believe it
to be a stolen stock
or produce, shall be guilty of an offence and, notwithstanding the
provisions of any other written law, shall
be sentenced for a first
offence to a term of imprisonment for not less than five years or
more than 10 years without the option
of a fine, and for a second or
subsequent offence to a term of imprisonment for not less than seven
years or more than 14 years
without the option of a fine.

4. In any
proceedings, where it is proved to the satisfaction of the court that
a person –

(a) was found in
possession of any stock or produce reasonably suspected of being

(b) was found in
possession of any stock or produce of which the brand or ear marks or
numbers, or other identification marks have
been altered, disfigured,
obliterated or tampered with in any manner;

(c) was found in
possession of any forged documents of sale or ownership, identifying
the stock or produce and the person from whom
it was obtained, and
from which such person can be traced;

(d) was found in
possession of any forged documents of sale or ownership in
relationship to any stock or produce.

7. Any person who
knowingly tampers with, alters, or assists in tampering with,
alteration of any brand or ear mark on stock or
produce so as to, or
be likely to, conceal or disguise the identification of such stock or
produce shall be guilty of an offence
and liable to a fine of P5 000,
or to imprisonment for three years, or both.”

24. It shall be
noted that in terms of Section 4 (b) that upon being proved that a
person was in possession of any stock of which
the brand or ear mark
have been disfigured or tampered with in any manner the person is
presumed to be guilty of theft of the stock
unless he proves
otherwise. The Plaintiff falls within the catch of this provision. It
is common cause that the ear marks of the
bull were disfigured or
tampered with, and the police were not satisfied with the
explanations therefor. This alone justified the
arrest and detention
of the Plaintiff so that his story may be verified.

25. Section 4 (c) of
the Stock Theft Act is also relevant to the consideration of this
matter to the extent that the Plaintiff relied
on Exhibit PI to
establish ownership.

That document is not
a bill of sale and the Plaintiff has not established other
satisfactory evidence of ownership of the bull,
and has not given the
whereabouts of the alleged Benny Lebotse such that the police could
trace him.

26. The Stock Theft
Act also provides in Section 8 for seizure of suspected stolen stock
and arrest of persons in possession of
stock reasonably suspected to
have been stolen:

“1) Any police
officer may, without a warrant, arrest and search any person found,
or suspected of being, in possession or
charge or control of any
stock or produce if he believes, on reasonable grounds, that the
stock or produce is stolen, whether or
not that person has stolen the
stock or produce himself, or received it knowing or having reason to
believe that the stock or produce
to be stolen, or has assisted in
stealing the stock or produce, and may seize the stock and produce
and any documents relating
to it.

(2) A police officer
who has arrested any person or seized any stock or produce in
accordance with the provisions of subsection
(1), shall as soon as
possible take that person and that stock or produce, as the case may
be, and any documents seized relating
to the stock or produce, to the
nearest police station.

(3) Without
prejudice to subsections (1) and (2), whenever any justice of the
peace, police officer 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 stolen stock
or produce, such justice
of the peace, police officer, 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 which he reasonably
suspects to have been stolen
he may without warrant arrest such
person and shall as soon as possible convey him and the stock or
produce so found to a police
station or charge office

27. I am satisfied
that DW2 had reasonable basis for arresting and detaining the
Plaintiff, and that accordingly his actions find
protection under
Section 8 subsections 1 and 2 of CAP. 09:01. It was not unreasonable
for DW2 to suspect that the bull was stolen
given its fresh brand
mark and the absence of an old brand mark given the age of the bull,
the new ear marks and the tampered with
ear mark. The position
adopted by DW2 is justified when one further looks at the provisions
of Section 9 of CAP 09:01, which provides:

“(1) Any
person (including any auctioneer or agent) who sells, barters, gives
or in any other manner disposes of any stock
to any other person
shall, at the time of delivery to such other person of the stock so
sold, bartered, given or disposed of, furnish
such other person with
a document (hereinafter called a “document of identification”)-

(a) stating-

(i) his full name
and address and, if the stock was sold, bartered, given or disposed
of on behalf of some other person, also the
name and address of such
other person;

(ii) the full name
and address of the person to whom the stock was sold, bartered, given
or disposed of;

(b) certifying that
such stock is his property or that he is duly authorized by the owner
thereof to deal with or dispose of it.

(2) No person to
whom any stock has been sold, bartered, given or otherwise disposed
of and to whom a document of identification
is required to be
furnished in terms of subsection (1) shall take delivery of such
stock without obtaining such document at the
time of delivery.

(3) Any person to
whom a document of identification has been furnished in terms of
subsection (1) shall retain it in his possession
for a period of at
least one year.

(4) Any person may
within the period referred to in subsection (3) demand an inspection
of such document, and upon such demand the
person having possession
of such document shall produce it for inspection to the person making
the demand.

(5) Any person who-

(a) contravenes any
provision of this section;

(b) contravenes any
provision of subsection (4); or (c) wilfully makes any false
statement in a document of identification shall
be shall guilty of an

(6) Any person who
delivers any stock to an auctioneer or agent for the purpose of sale
or disposal in any other manner, shall,
for the purposes of this
section, be deemed to have disposed of such stock to such auctioneer
or agent. ”

28. Section 9 (1) of
CAP. 09:01 places a duty on sellers of stock to give sellers a
document of identification setting out the full
particulars and
addresses of both the seller and buyer or other parties to the
transaction, and further certifying his or her entitlement
to dispose
of the said stock. Likewise in Section 9 (b) of the same Act, the
buyer or other person to whom the stock is given is
barred from
taking the stock without the document of identification.

29. In the same
spirit the other provisions of the Stock Theft Act such as Sections
10 and 11 are meant to minimize stock theft
and to regulate dealings
in stock so as to ensure certainty of ownership and ease
identification of stock. Section 10 prescribes
for public sale of
stock and puts stringent conditions for private sales. Section 11
deals with movement of stock by other persons
other than owners
thereof, and prescribes a removal certificate.

30. The Plaintiff
did not produce, either to the police or the Court, any of the
prescribed documents to show ownership or the purchase
of the bull.
In my opinion had he done so, the police would have had no cause
whatsoever to arrest and detain him. The Plaintiffs
failure to
produce a document of identification prescribed in Section 9 of CAP.
09:01 makes him guilty of offence pursuant to Section
9 (5) of CAP.

31. In the
circumstances, I am not satisfied that the Plaintiff has proved his
case in respect of the unlawful arrest and detention,
and his claim B
must accordingly fail.

32. On his 1st claim
on malicious prosecution it is the contention of the Plaintiff that
after he handed the police the document
marked Exhibit PI and giving
the police a comprehensive statement marked Exhibit P2, the police
were totally unjustified in proceeding
to arraign him. He is of the
opinion that the police were motivated by malice and had no probable
cause for so acting.

33. The Plaintiffs
believe that his prosecution was malicious is informed by the fact
that the prosecutor withdrew the case on the
day of the trial with
prejudice to the state on account of insufficiency of evidence. The
record of the proceedings before the
Magistrate Court on page 4 shows
the following:

Prosecutor: I do confirm my appearance in this matter which is
scheduled for commencement of trial today. We are however
unable to
commence the trial. We are making an application to withdraw the
charges against the accused due to insufficient evidence.
therefore apply for a withdrawal under section 150 (4) of the
Criminal and Evidence Act with prejudice to the State.”

34. Later on, at
pages 5 and 6 of the record, it is recorded:

Prosecutor: We have thoroughly inspected our evidence and we came to
the conclusion that we could not secure a conviction.
So we made an
application in terms of Section 150 (4) of the Criminal and Procedure
and Evidence Act for a withdrawal and the accused
wanted his lawyer
to say something.

Defence Attorney:
Since the application has been made with prejudice to the State we
have no reason to object to the application.
As such we have no
problem with the application.

Court: Upon the
reasons advanced by the prosecution and upon the application made by
the prosecution, the application to withdraw
the matter under section

(4) of the Criminal
Procedure and Evidence Act is granted with prejudice to the State.
The accused is discharged”

35. Section 150 (4)
of the Criminal Procedure and Evidence Act CAP. 08:02, relied upon by
the prosecution to withdraw the charge
with prejudice to the state

“Arty person
who has once been called upon to plead to any indictment or summons
shall, except as is specifically provided
in this Act or in any other
law, be entitled to demand that he be either acquitted or found

Provided that in a
magistrate’s court, by leave of the court and for reasons to be
stated on the record of the proceedings,
the prosecution may withdraw
the case at any time before the close for the case for the
prosecution, in which case the accused
person shall be discharged
without prejudice to his being charged again for the same offence;
the prosecutor may withdraw the case
at any time after the close of
the case for the prosecution before judgment by leave of the court
and for reasons to be noted on
the said record in which case the
accused shall be acquitted and discharged. ”

36. In terms of the
proviso to Section 150 (4) of CAP 08:02 the prosecution can withdraw
the charges against the accused person
at any time before the close
of its case, in which event the accused person will be entitled to a
discharge without prejudice to
the right of the state to recharge the
accused person. However, if the withdrawal, is done after the close
of the state case, the
accused person is entitled to acquittal and
cannot be recharged on the same charge and facts. It is quite clear
to me that the
prosecutor misunderstood the provisions of Section 150
(4) of CAP 08:02 and confused the Magistrate who nevertheless reached
proper conclusion by simply discharging the accused person instead
of acquitting him as the import of the phrase “with prejudice”

would entail. See The State V Seeletso 1991 BLR 195 (HC); Busi V The
State [1997] BWCA 9; 1997 BLR 69 (CA) at 74.

37. In explaining
her actions and motivation as the lead prosecutor, ANASTACIA MOGALE,
(DW3) acknowledges that when she prosecuted
the Plaintiff she
believed that there were good prospects for successful prosecution
having regard to the evidence of new brand
marks, the alteration of
ear marks and conflicting explanations allegedly given by the
suspect. However, when she finally reviewed
the evidence in
particular, document marked Exhibit PI, she thought the accused
person had positively proved the acquisition and
ownership of the
bull in question. She stated that she acted in good faith in charging
the Plaintiff and only withdrew the charges
because she believed that
she could not secure a conviction. Drawn to the contents of the
document marked Exhibit PI which effectively
records that the owner
of the animals listed was Benny Lebotse and the Plaintiff as a mere
witness, DW3 conceded that she was misled.
DW3 was further asked to
read the provisions of Section 150 (4) of CAP. 08:02 and to state
whether or not it entitled her to withdraw
the criminal proceedings
with prejudice to the state at that stage of the proceedings. She
again accepted that she had misunderstood
the provisions of the law
in question.

38. Whilst the
prosecuting police officer clearly exhibited total ignorance of the
law relating to stock theft and elementary rules
relating to
withdrawal of charges, there is no evidence that she was actuated by
malice in preparing charges against the Plaintiff
and arraigning him.
It seems to me that she acted with all honesty and immediately she
formed an opinion that the evidence was
insufficient she withdrew the
charge. However, the withdrawal of the charge in itself does not
suggest that there was no evidence
upon which a reasonable court
could convict the Plaintiff on a preferred charge or some other
lesser charge.

39. I have already
pointed out the presumption that would have weighed heavily upon the
Plaintiff on the basis of the facts that
are common cause, the
branding of an adult bull; the tempered ear marks and the sale of a
bull without a the necessary documents
of identification. The
document that the Plaintiff relied upon as evidencing his acquisition
of the animals raised more suspicion
than what it was intended to do.
I am firmly convinced, on a balance of probabilities, that the police
had a reasonable and probable
cause to prosecute the Plaintiff.

40. I have therefore
come to the conclusion that the Plaintiffs three claims have not been
proved and must consequently fail. I
accordingly make the following

(a) The Plaintiffs
action is dismissed.

(b) The Plaintiff
shall bear costs of suit.




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