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

1 Section 21(2) of the Criminal Procedure Act 51 of 1977 (the CPA).

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.

2 Maseti v S [2014] 1 All SA 420 (SCA) para 3.

[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 Conservation3 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

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.

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

4 The magistrate should have intervened to remedy this at the outset. S v Makazela 1965 (3) SA 675
(N).

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

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.

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

6 S v Fani and others 1994 (3) SA 619 (E) at 621I-J.

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.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  31 March 2014

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Macrae v State
Dr and Mrs Macrae operate a game lodge. On 10 October 2006 a
conservation officer, from the Directorate Nature Conservation in
Gauteng, asked them if they would take a baboon that had been seized by
the police, in conjunction with the Directorate, under a warrant issued in
terms of the Criminal Procedure Act. They agreed to do so and the
baboon was handed to them in terms of a document headed ‘Certificate of
Handover to Institution’ and signed on behalf of the Directorate by the
conservation officer. The reason for approaching them was that no public
zoo was available to take the baboon.
The following day a senior official in the Directorate told the
conservation officer that she had made a mistake in handing the baboon
to the Macraes, as in terms of certain treasury regulations it should have
been placed in a zoo approved by the treasury. There followed some
exchanges between the officials of the Directorate and the Macraes, in
which the officials demanded the return of the baboon and the Macraes
maintained that it had become their property, subject to the outcome of
criminal proceedings against the person from whom it had been seized.
On 18 October an official, Mrs Boshoff, arranged for a party
including two conservation officers, a vet, a third party, the police officer

who had originally seized the baboon and two members of the flying
squad, to proceed in convoy to the Macraes’ property in order to retrieve
the baboon. They found that the baboon had gone for a walk and Dr
Macrae challenged their right to take the baboon. This resulted in Dr
Macrae, and thereafter his wife, Mrs Macrae, being arrested. They were
both charged with theft of the baboon and with defeating or obstructing
the administration of justice. They were convicted in the magistrates’
court after a four day trial and their appeal to the Gauteng North High
Court failed.
The SCA today set aside their convictions and sentences on all
counts. It held that they had bona fide believed that the baboon had been
given to them and that this negated any criminal intention on their part. In
any event, they had not stolen the baboon. There was a misapprehension
by the conservation officers as to their rights in relation to the animal. It
was for the police to deal with the animal once it had been seized and
they had made perfectly acceptable arrangements for its care pending the
criminal trial. Instead the police had co-operated with the conservation
officers to recover the baboon for bureaucratic reasons unconnected with
the requirements of the Criminal Procedure Act. Furthermore the
Macraes had not had a fair trial and on that ground also the convictions
could not stand.