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[2016] ZAWCHC 52
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Nogwebele v Minister of Police and Another (824/2014) [2016] ZAWCHC 52; 2016 (2) SACR 662 (WCC) (12 May 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 824/2014
DATE:
12 MAY 2016
REPORTABLE
In
the matter between:
MNINIZO
NOGWEBELE
..........................................................................................................
Plaintiff
And
MINISTER
OF
POLICE
................................................................................................
First
Defendant
DIRECTOR
OF PUBLIC
PROSECUTIONS
..........................................................
Second
Defendant
JUDGMENT: 12
MAY 2016
HENNEY
J
Introduction
[1] On 27 June 2013,
the Plaintiff was arrested at his home near Gugulethu in the Western
Cape on a charge of rape, where after
he was detained at the
Gugulethu Police Station for 4 days before appearing in court on 1
July 2013. After bail was refused on
17 July 2013, he was detained
for a period of four (4) months and two (2) weeks at Pollsmoor prison
up until his release on 11
November 2013, when the charges were
withdrawn against him.
[2] As a result of
this, the Plaintiff instituted this action against the Defendants.
Adv Godla appeared for the Plaintiff
and Adv Mayosi appeared for the
First and Second Defendants.
[3] The Plaintiff’s
case is that on 27 June 2013 he was wrongfully and unlawfully
arrested by the South African Police Services
(SAPS) on allegations
of rape. He was further unlawfully deprived of his liberty for 4 days
before he appeared in court.
[4] The Plaintiff
further alleges that after he was formally charged at his first court
appearance on 1 July 2013, members of the
Second Defendant whilst
fully presented with the facts and allegations leading to his arrest
and detention decided to prosecute
him without any just cause. That
on the Second Defendant’s insistence and exercising their
discretion to oppose bail, and
on the recommendation of the First
Defendant, his application to be released on bail was refused by the
court.
[5] He further
alleges that on 11 November 2013 after having been incarcerated at
Pollsmoor prison for a period of four months and
two weeks the
charges were withdrawn against him due to insufficient evidence.
[6] The Plaintiff’s
main submissions are these. There was no reasonable and or probable
cause in law, justifying his arrest
and detention, and accordingly,
such arrest and detention is unlawful. Further there was no
reasonable and probable cause for his
prosecution and accordingly his
prosecution is malicious because the proceedings were instigated,
without such reasonable and probable
cause. The members of the Second
Defendant acted with
animo injuriandi
and the prosecution
failed.
[7] The members of
the First and Second Defendant at all material times acting within
the course and scope of their employment thus
rendering the First and
Second Defendant vicariously liable for their member’s wrongful
and unlawful conduct.
[8] As a direct
result of their unlawful actions, the Plaintiff alleges that he
suffered damages in the amount of R800 000,00.
He
therefore holds them liable to compensate him for damages.
First and Second
Defendants’ Plea
[9] The First
Defendant denies that the arrest and detention of the Plaintiff were
wrongful and unlawful. The First Defendant
further avers that
the detention of the Plaintiff was justified and in accordance with
the provisions of the Criminal Procedure
Act 51 of 1977 (“the
CPA”).
[10]
The Second Defendant insofar as the allegations made by the Plaintiff
is applicable to it avers that the prosecution of the
Plaintiff for
rape was justified and there was reasonable and probable cause for
doing so. It further avers that it was justified
to oppose the
Plaintiff’s release on bail, as the Plaintiff was charged with
a Schedule 6 offence. The Second Defendant
further states that
the application for bail was refused after the Plaintiff failed to
satisfy the court that exceptional circumstances
justified his
release on bail.
[11]
The Second Defendant further alleges that on 11 November 2013, the
charges against the Plaintiff were withdrawn because the
alleged
victim, a five year old girl was not ready to participate in the
matter.
Separation
of Issues
[12]
The parties at the outset of the trial agreed that the merits and
quantum be separately adjudicated in terms of Rule 33(4)
of the
Uniform Rules of Court.
The
Evidence
[13]
In addition to testifying himself, the Plaintiff also called [M…..]
[N….] to testify on his behalf. The
following witnesses
testified for the First and Second Defendants, which I will mention
in chronological order although the evidence
was not pleaded in such
an order: Constable Vetman (“Vetman”), Dr Roy
Chunga, Mr Deon Ruiters (“Ruiters”)
and Mrs Thandi
Peter-Varoyi (“Peter-Varoyi”).
[14]
The Plaintiff’s testimony, in summary, is as
follows. In the early hours of 27 June 2013, at
approximately 05:00am,
he was arrested on a charge of rape by members
of the First Defendant at his place of residence in Barcelona,
Gugulethu.
The two policemen were accompanied by a child who
alleged that he raped her. The mother of the child was also
present.
[15]
During the time of the alleged incident, he operated a spaza shop
from his house. At first, the policemen told him that
the child
was there to collect her change because she bought bread at the shop
the previous day. He then replied that on
the previous day he
was not on duty in the shop but his son was. He called his son,
but the policeman said he was joking
and said that he was there about
a rape. When he enquired about the rape, the policeman pointing
to the child and said: “
You raped that small child
”.
When this allegation was made, his son informed the policemen that he
(the son) was with his father (the Plaintiff)
the whole day -
the day they alleged he raped the child. Thereafter, he was
arrested and taken to the Gugulethu Police
Station.
[16]
According to the Plaintiff, the child did not say anything in his
presence. At the police station, the police asked him
what he
knew about the rape and he told them that he did not have anything to
do with these allegations. He was arrested
on the Thursday and
only appeared in court on the Monday. He applied for bail but
it was refused. He further testified
that he told the police
that he sent his son, [S…..] to the shop to buy some beans and
that his son’s friend [(M….]
[N….], his witness)
remained with him in the shop and they played pool. The son was
not even away for 3 minutes.
[17]
The Plaintiff stated that he remained at his house the whole day
until about 17h00 when he attended a community meeting and
this he
conveyed to the investigating officer at the time of his arrest.
In cross-examination the plaintiff confirmed that
he knows the victim
and her mother. He also confirmed that the child referred to
him as “
Mkhaya
”, because he comes from the same
area in the Eastern Cape as the child’s father. He denied
that on the morning
of his arrest, when the child came with the
police, that he spoke to the child and said to her “
Is it
again you my child?
” He further denied that the child
pointed him out, but rather stated that it was the police officer who
said that he
raped the child.
[18]
He confirmed that his son told Vetman that they were in each other’s
company the whole day when it was alleged that he
had raped the
child. Vetman asked his son whether his son was not sent to the shop
to buy samp and beans during that time when
the child was there.
He further testified in answer to a question by Adv Mayosi that the
policeman did not know him and that
he cannot say if the police would
know who he is without being pointed out.
[19]
He admitted that he never told Vetman at the time of his arrest about
the friend of his son who was present at the time the
child came to
the shop on the previous day. He only mentioned this fact in
his bail application. He also did not call
his son’s
friend to testify at his bail hearing.
[20]
[M...] [N….] [(“N….”)] testified on behalf
of the Plaintiff and said he is a friend of the Plaintiff’s
son, [S….]. He heard about the allegations of rape made
against the Plaintiff. These allegations came to his
attention
the day after he had spent the day at the Plaintiff’s place -
that being the day he said it is alleged that
the Plaintiff
raped someone. He was in the presence of the Plaintiff for a
period of between 10 – 11 hours. He
only left the house
of the Plaintiff round about 6 – 7pm that evening.
Throughout this time, they were playing pool.
At one stage
[S….] went to the shop to buy beans and he was alone with the
Plaintiff at his house. The Plaintiff was
thus not alone during
this time. He is not aware and it cannot be that someone could
have been raped during this time.
The
Plaintiff closed his case after the evidence of this witness.
[21]
The evidence of the First Defendant is set out as follows. Constable
Vetman a police officer attached to the Nyanga Family
Violence, Child
Protection and Sexual Offences Unit (“Nyanga FCS”) of the
South African Police Station since 2007,
was called to testify.
Part of his duties is to investigate rape cases.
[22]
On 26 June 2013 he received a complaint about the rape of a 5 year
old child. On arriving at the Gugulethu Police Station
he found
the little girl accompanied by her mother and aunt. The
Plaintiff did not object and consented to the hearsay evidence
of the
mother as presented by Vetman in terms of the provisions of
s3(1)(a)
of the
Law of Evidence Amendment Act 45 of 1988
[1]
.
According to Vetman, the mother told him that earlier in the day when
she wanted to wash her child at her private parts;
the child told her
that she had already washed her private parts. The mother
however proceeded to wash the child’s
private parts, and the
child pulled away.
[23]
She asked the child what was wrong and the child told her that she
cannot tell because she was scared and she thought her mother
would
hit her. The child eventually told the mother what happened,
which is - she went to the shop to buy some chips;
the
owner of the shop invited her to come into the shack through a side
door; after entering the shack, he took off his pants,
took off
her panties, got on top of her and put his penis into her vagina.
The child then told the mother she cried because
it was painful.
He thereafter told her to put on her clothes, and she took her chips
and left.
[24]
Vetman said that on the insistence of the child, he had a private
conversation with her and she confirmed what the mother told
him
except that the child also mentioned that when she came into the
shack, he (the owner) put her onto the bed and thereafter
committed
the sexual act with her. At that time his son was not there.
When she cried, he left her and told her to
put on her clothes.
Vetman testified that he took a statement from the mother as well as
the child. After which he
took the child to the Thuthuzela Care
Centre at GF Jooste Hospital. She was examined by Dr Chunga who
recorded his findings
on a J88 form that was earlier handed in as an
exhibit. Dr Chunga also gave Vetman a sexual evidence
collection kit which
he sent to the police’s forensic
laboratory. Dr Chunga confirmed that the child had sustained injuries
to her vagina.
[25]
Vetman and his superior officer decided that as a result of the
evidence and information they had at their disposal to execute
an
arrest the next morning. He had no Warrant of Arrest because at
that stage he based his suspicion that a crime had been
committed on
the statement of the child, the statement of the mother and the
medical evidence which he had at his disposal.
On 27 June 2013,
accompanied by his colleague, Warrant Officer Kappes, as well as the
mother and the child, he went to the house
of the Plaintiff to affect
an arrest. When they arrived at his house, the Plaintiff opened
the door. When the Plaintiff
saw the little girl, he said to
her “Are you back again?” He told the Plaintiff
that he is from the police and
asked the child who it was that did
the things to her. She then pointed at the Plaintiff, after
which she went to hide behind
her mother.
[26]
Vetman testified that he did not point out the Plaintiff to the
child. After the identification, he informed the Plaintiff
that
he is arresting him on a charge of rape and explained his rights.
At that stage the Plaintiff’s son came forward
and said that he
cannot arrest his father for rape because it did not happen,
whereupon Vetman asked him if he was not sent to
go and buy samp and
beans. This was confirmed by the Plaintiff’s son, but
said he was only sent to go buy beans.
Vetman then told him
that he would come back to take a statement from him at a later
stage. He later asked the child to show
him where the incident
took place.
[27]
The
Plaintiff did inform him that he did not do
anything. He proceeded to take the Plaintiff statement, which he read
out to him and
he asked the Plaintiff to confirm it as correct, which
the Plaintiff then signed. Vetman further testified that he
took the
Plaintiff to draw blood samples. The Plaintiff also asked
him about bail and said that he was worried that his wife will find
out
that he was arrested for the rape of a child, and he said to him
that this will be a problem in his marriage. The Plaintiff never
told
him that on the day that the alleged rape took place that he was with
his son and a friend of his son, playing pool.
According to
Vetman, if he had been told about this, he would have followed it up
by taking a statement from the friend of the
son.
[28]
On Monday, 1 July 2013, the Plaintiff appeared in court for the first
time. During the Plaintiff’s bail application on
17 July 2013,
Vetman testified that he was not present in court as the prosecutor
had asked him to wait outside. He testified that
he was opposed to
bail being granted to the Plaintiff. As one of his main reasons was
that the community would not have approved
of bail being granted to
him and he was afraid that should the Plaintiff be released, his life
might be in danger. He was also
afraid that the Plaintiff may abscond
to the Eastern Cape where his wife stayed.
[29]
Even though he did not testify in the bail application, bail was
ultimately refused by the court. The prosecutor later requested
him
to bring the child to her for a consultation. He also had to find out
from the laboratory about the DNA test that was undertaken.
In
November 2015, he received a call from the prosecutor Mrs.
Peter-Varoyi who informed him that she sat with the child in
consultation
and the child told her what happened but she had to
withdraw the case for a short while because the child was not ready
for court.
He was told that the case will be re-enrolled after a
period of approximately two years. In this time, according to his
understanding,
the child is supposed to go for counseling after which
the docket will have to go back to court to consider whether the
prosecution
against the Plaintiff would be reinstituted. This,
however did not happen because the docket went missing. He also
subsequently
found out that after analyzing the forensic material,
the forensic laboratory could not find any DNA result.
[30]
Vetman said that the arrest of the Plaintiff on the alleged rape of
the child was based on a statement he obtained from the
mother and
the child, as well as the J88 statement from the doctor who examined
the child. In cross-examination he further elaborated
that the
Plaintiff was described by the mother and the child as the person who
was the owner of the shop. He was satisfied in his
mind that after
the child and the mother pointed out the Plaintiff that he was the
owner of the shop who was allegedly to have
raped the child. The
child explained to him and pointed out the place where the rape took
place the previous day prior to the arrest
of the Plaintiff.
The child could however not explain the exact time it took place.
[31]
Further during cross-examination he confirmed that he only asked the
son of the Plaintiff if he was not sent out to go buy
samp and beans
just to verify the version of the child who told him that when
the incident took place the son was sent out
by the Plaintiff to go
buy samp and beans. It is also for this reason that when he saw a pot
of samp and beans on the stove in
the Plaintiff’s house, he
called out the photographer to take photographs thereof. He did not
ask the son how long he was
gone. He only wanted to confirm whether
it was consistent with the child’s version at that time.
[32]
During the arrest of the Plaintiff, the Plaintiff’s son never
told him that there was a friend with them who played pool
with his
father and him. He was also never asked by the prosecutor to follow
up this allegation made by the accused during the
bail application -
that at all times when the Plaintiff’s son was gone; this
friend was with the Plaintiff at the house.
If this information was
given to him, he would have followed it up. However, even if he had
this information, he would still have
arrested the Plaintiff. The
reason being, as he said earlier, that there was a complaint that the
child was raped and it was never
alleged that the rape took place
where the pool table was.
[33]
In his testimony he revealed that the shack has three doors leading
to the outside and the pool table was in a different room
than the
one which the child had shown him where the rape had allegedly taken
place. He denies that he did not act reasonably and
that he did not
have all the information on which he based his decision to arrest the
Plaintiff.
[34]
He denied that the child did not point out the Plaintiff and he was
the one who said to the Plaintiff that he is arresting
him on a
charge of rape. He also disagrees that the Plaintiff’s son was
the one who opened the door at the time when they
came to arrest the
Plaintiff. He was persistent in his evidence that he could remember
the child also referred to the Plaintiff
as “
Mkhaya
”
and “[
T….]i
” even though it was not
contained in the statement he made or in the statement of the child.
Vetman was adamant that he did
not make a mistake about the identity
of the Plaintiff based on the information and the pointing out that
was given to him by the
child and the mother. He was aware of the
fact that the child said that she was given a free packet of chips
after the rape, even
though it was not mentioned in the child’s
statement.
[35]
Dr Roy Chunga also testified on behalf of the Defendants. He is a
medical doctor employed with the Department of Health. At
the time of
him giving evidence he was employed at the Mitchell’s Plain
Hospital since 2014, after GF Jooste Hospital closed
down. This
witness is in possession of a degree of Bachelor of Medicine and
Bachelor of Surgery obtained from the University of
Zambia in 1999.
He also obtained a Diploma in Forensic Medicine from the College of
Medicine of South Africa in 2011. During
2013, he was employed at
Thuthuzela Care Centre at GF Jooste Hospital where he would examine
victims of sexual assault and rape.
[36]
He was referred to a bundle of documents which he compiled at the
time of his examination of the child. This bundle of documents
can be
found on page 42 up to and including page 68 of the record. This is a
set of documents that they would compile and hold
in safekeeping when
the child or a victim of sexual abuse reports to Thuthuzela Care
Centre. These documents deal with the criminal
matter which is the
subject of this case where it was alleged that the Plaintiff sexually
assaulted the child concerned. Among
these documents was a so-called
form, a copy of the criminal case docket as well as the statement of
the child.
[37]
According to the J88, he examined the child on 26 June 2013 at 23h55
and after examining the vagina of the child concluded
that there was
evidence of a sexual assault on the child. This evidence was not
disputed by the Plaintiff and needs no further
discussion.
[38]
Mr Deon Ruiters was the next witness called. He was called by
the Second Defendant. This witness testified that he was
appointed as
a Prosecutor in the Sexual Offences Court at Wynberg. He is also a
Thuthezela Case Manager. He deals with matters
that emanates from the
Nyanga FCS where the victims have received treatment at GF Jooste
Hospital. These cases would usually go
through the Wynberg court. He
was responsible for the screening of cases during June 2013 up to the
end of that year. He cannot
remember the specific case due to the
tremendous caseload he dealt with, which would be in the order of 80
cases per month. He
however had sight of the documents relating to
this matter and after having seen it he identified that this was one
of the matters
he had dealt with.
[39]
Upon receiving a docket, he would acquaint himself with the facts to
determine whether there is a
prima facie
case. In this
particular case, he came to such a conclusion after having read all
the statements, the J88 as well as the Arresting
Officer’s
Statement. Once this is done he will summarise the facts of the case
on a Roneo Form and give this to the Prosecutor
who will be dealing
with the bail application in order for him or her to inform the
Magistrate about the facts during the bail
application.
[40]
In concluding whether there is a
prima facie
case he would
determine whether an offence was committed, and upon coming to such a
conclusion in this case, he would have read
the victim’s
statement to ascertain on the facts whether a sexual offence had been
committed. For this particular case, he
referred to Exhibit “C”
on page 62, which is the statement of the child as well as the
statement of the mother.
He furthermore testified that there
must have been some other evidence to identify the assailant because
in the statement of the
child, the person who allegedly raped her was
being referred to as the shop owner. The child identified the person
described as
the shop owner as the one that put his penis in her
vagina.
[41]
He also had a look at the J88, and would have determined the identity
of the culprit by having regard to the statement of the
investigating
officer. After that he would make additional entries in the docket
wherein he would give further instructions to
the investigating
officer regarding outstanding aspects such as acquiring DNA reports.
He would also instruct the investigating
officer to follow up on any
issue raised during the bail proceedings for example to investigate
the possibility of an alibi witness.
In his experience, in most cases
the investigating officer would be present in court during the bail
proceedings. It would be most
unusual for the investigating officer
not to be present. After having been shown a copy of the charge sheet
that was handed in
as exhibit, he identified the handwriting on the
side of the J15 as that of his colleague Ms Kellerman who made the
entry “charge
withdrawn”.
[42]
On a perusal of the charge sheet and the case record as can be seen
on page 20 (of the record) it states that the investigation
of this
case was completed but consultation still needed to take place. As
can be seen on page 21 (of the record) a warrant of
liberation had
been issued on 11 November 2013 once the matter had been withdrawn by
Miss Kellerman after having discussed this
with Mrs Peter-Varoyi.
According to Ruiters the prosecution against the accused did not fail
and the reason for the withdrawal
was a result of the fact that the
victim was not ready to testify during the trial. When this happens
the prosecutor will make
an entry into the investigating diary of the
docket wherein a date usually after a period of 6 to 12 months is
given to the investigating
officer in which it would indicate that
the prosecution against the accused should be re-instituted.
[43]
He revealed that there is no policy or procedure in place to regulate
this practice. It is based on an ad hoc working relationship
between
the prosecutor and the police concerned. In cross-examination,
he testified that if an issue of an alibi is raised
during the bail
application the prosecutor would usually instruct the investigating
officer to follow up such an allegation. If
a witness would refer to
an accused by more than one name, the prosecutor would ordinarily
follow-up such information. It was not
known to him whether there was
any DNA evidence in this particular case.
[44]
Ruiters stated that for him to have made a decision to proceed with
the case he would have had sufficient information to identify
the
accused. In his opinion he still had a
prima facie
case even
if he had the information about a possible alibi. He also conceded
that had the Plaintiff in this matter not instituted
these
proceedings, this matter would have fallen through the cracks. He
couldn’t explain why this matter was not re-enrolled
for
prosecution. According to him, the National Prosecuting Authority has
no policy or procedure in place to regulate and deal
with further
possible prosecutions in matters like these where the case was
withdrawn due to the fact that the child was not ready
to testify in
court. They do not keep a copy of the docket after they sent the case
back to the police.
[45]
The next witness for the Second Defendant was Mrs Thandi
Peter-Varoyi. She testified that she is a Magistrate at the
Wynberg Court and was appointed to this position on 15 April 2015.
From 15 June 2013 until the end of 2013 she was employed as
a
prosecutor at the Wynberg Magistrate’s Court. She cannot recall
the facts of this particular case but testified however
that if she
would be given the docket it would assist her to remember the facts
of this case. Due to the caseload she would also
not have an
independent recollection thereof.
[46]
She had sight of the documents relating to this matter which are the
J88, the statement of the child and the mother, as well
as the charge
sheet. She cannot dispute the evidence of Vetman and Ruiters that she
may have dealt with this matter. She confirmed
the evidence of
Ruiters that usually in matters like these, the bail application
would be dealt with in the bail court and the
docket would be perused
by the sexual offences prosecutors. Upon receiving such a docket,
they will arrange for a consultation
with the child usually after the
matter has been postponed by the bail court in order to have such
consultation concluded before
the next date. The matter would
be dealt with in the bail court. Thereafter she would give the date
of the consultation to
the investigating officer and also give
him/her instructions to follow-up.
[47]
She testified that the purpose of the consultation with the victim is
to prepare the child for trial and when making such an
assessment she
will look at: the age of the child; determine whether the child can
differentiate between a truth and a lie; ascertain
whether the child
would know the consequences of the truth and the importance thereof.
She will do this by asking the child questions
such as if he or she
knows the different colours. This is in order to establish whether
the child knows the difference between
a truth and a lie. She was
referred to page 20 of the record where it states that the
investigation is complete and she explained
that this meant that she
was satisfied that the investigation in this case was complete and
the matter is then ready to be referred
to trial.
[48]
After being referred to the words “matter W/D victim not ready”
on page 17, she explained that this decision was
taken because she
noticed the child was 5 years old and, according to her, this means
that the child did not pass the competency
tests which would mean
that the child is not ready testify in an open court. At that stage,
the matter was in the District Court
when she made the recommendation
to the Senior Public Prosecutor to withdraw the case. This did not
mean that the matter was permanently
withdrawn against that
particular accused. It is common practice that she would then
instruct the investigating officer to bring
this case back to court
after a year or two. According to her, this does not mean that the
prosecution has failed and if it was
such a case, she would rather
have stated that there was no prospect of a successful prosecution.
[49]
In regards to the statement of the child, wherein the child did not
name the alleged perpetrator, she said that children of
that age
would identify people by description rather than by name. The
complainant or child would usually identify the person
to the mother
or in the presence of the police or to the policeman who will be
affecting the arrest. It was clear to all from the
statements of the
mother and child who the person was that allegedly raped the child.
The child said it was the shop owner and
she would have clarified
this during the consultation. She however does not have an
independent recollection whether she indeed
clarified it with the
child.
[50]
She stated that even if there was a witness that said they were
present with the Plaintiff on the day of the alleged rape,
she would
still have proceeded with the prosecution because she would not have
found any reason for this child to lie. She would
also have proceeded
with the prosecution even if there was an absence of DNA linking the
perpetrator. If there was DNA of another
person she would have taken
it up with the child in order to ascertain whether this child was
raped by another person and if so,
she still would have proceeded
with the prosecution. If however, the child insisted that it was only
one person, she would have
withdrawn the matter.
[51]
After having been referred to page 62 of the record where the child
at paragraph 4 of the statement says that she doesn’t
know the
difference between right and wrong she will then have embarked on an
enquiry where she would for example ask the child
that if something
is white and someone would say it is red, would it be right or wrong.
If the child would then give the correct
answer then she should be
able to ascertain whether the child would be able to distinguish
between right and the wrong.
[52]
This was all the evidence that was given during the course of the
trial. I will now evaluate the evidence and also the legal
questions
involved.
Evaluation
[53]
It is common cause that the Plaintiff was arrested on Thursday
morning, 27 June 2013 by members of the South African Police
Services, acting within the course and scope of their employment on
the suspicion of the rape of a minor child. After affecting
the
arrest, the Plaintiff was taken to Gugulethu Police Station where he
was detained until his first appearance at Wynberg Magistrates
Court
on Monday, 1 July 2013. At which point he was formally charged with
rape under case number 4/655/13.
[54]
He applied for bail on 17 April 2013, which was refused. He
remained in custody until his release from prison on 11 November
2013, when the charges against him were withdrawn. Regarding the
Plaintiff’s claim for unlawful arrest, it is trite that
once
the First Defendant has admitted the arrest, the onus shifts to him
to prove the lawfulness thereof. As far as the claim of
malicious
prosecution is concerned, the onus to prove this claim resides with
the Plaintiff.
[55]
Before dealing with the applicable legal principles underlying the
claims of unlawful arrest and detention as well as malicious
prosecution, the court will first proceed with the evaluation of the
evidence in order to make proper factual findings against
which it
will evaluate the legal principles underlying the claims.
[56]
Firstly, I will deal with the evidence of the Plaintiff and his
witness. The Plaintiff did not impress this court as a witness.
He was evasive and vague, particularly when he was questioned about
whether he had told the police at the time of his arrest that
his
son’s friend, [N…..], was present at his house during
the time the child alleged that she was raped. In his evidence
in
chief, he emphatically said that he indeed informed them at the time
of his arrest that during the time which the child said
she was raped
this witness was present. However later during cross-examination he
changed his version and said that he never told
the police about this
witness being present at the time the child alleged she was raped.
[57]
After a long struggle and persistent evasiveness, he conceded that he
only told this to the court during his bail application.
The
Plaintiff further informed the court that the police accused him of
rape and arrested him without him being pointed out by
the child. He
said Vetman was lying when he told the court that the child had
pointed him out. He could however not explain
why the police
would bring the child with them to arrest him if the child did not
point him out. He could also not explain how
the police would have
arrested him if they did not beforehand know who he was. In answer to
this, he speculated that the mother
and the child may have told the
police before the time it was him.
[58]
Regarding the evidence of the witness [N....], it is clear that at
the time of his arrest the plaintiff he did not mention
to the police
that this witness was present on the previous day. This evidence
therefore was not available to Vetman to consider
at the time of the
arrest and does not take the matter any further regarding the
lawfulness of the arrest.
[59]
I will now deal with the evidence as presented by the First and
Second Defendants. Vetman made a favourable impression on the
court
as a witness. There was also nothing in his evidence which the court
would consider improbable. He was severely criticized
during
cross-examination as to why he did not mention the name of the
Plaintiff in the statements of the mother and that of the
child. I
find this criticism unfounded, especially in the light of the fact
that it was clear, not only to him, but also
to the Plaintiff that
the child and the mother knew who the Plaintiff was.
[60]
There could have been no uncertainty in the mind of the child, the
mother as well as Vetman as to who the child alleges was
the person
who raped her. It is also for this reason that I find the version of
Vetman to be more probable than that of the Plaintiff
- where he said
that the child and the mother took him to the house of the Plaintiff
and the child pointed out the Plaintiff as
the person who she alleged
raped her. He was also criticized that he did not follow-up the
allegation that [N…..] was present
at the time that the child
alleged she was raped. In answer to this, he said that the place
which the child pointed out as to where
she was raped was in a
separate room and not where there was a pool table. In
addition, he was not aware that the Plaintiff
said that this witness
was present during the rape, because he was not informed of this by
the prosecutor who dealt with the bail
application.
[61]
Vetman stated that there are 3 doors leading out of this house and
the pool table could have been in one of those rooms. The
only person
that said he was present when the child was allegedly raped was the
Plaintiff’s son. He was particularly
interested in that
allegation because the child told him that the rape had taken place
when the Plaintiff sent his son to buy samp
and beans. This witness
further came across as very confident and sure of himself. He also
did not contradict himself or was seen
to be misleading the court.
There is therefore no reason to disbelieve the evidence of this
witness.
[62]
The other witnesses who testified for the First Defendant did not
take this matter any further. The evidence of the witnesses
for the
Second Defendant, Ruiters and Mrs Peter-Varoyi was also not
heavily disputed by the Plaintiff. Their evidence
was that
although they did not have an independent recollection of this case,
they were merely there to explain the process and
procedure which
were in place which prosecutors would use when a person is arrested
for the rape and sexual assault involving a
child victim.
[63]
They said it was common practice for them to withdraw cases against
perpetrators, if after the consultation, it was clear to
them that
the child would not be able to testify in court due to their age and
lack of maturity. Also taking into account
their lack of
understanding of what it means to take the oath or be admonished to
tell the truth as required by law. According
to them, this does not
mean that there was no
prima facie
case against a person
accused of rape or sexual assault of the child. It just meant that
they could not proceed at that stage with
the prosecution, which
would result in a withdrawal of the charges against an accused.
[64]
The procedure they would undertake would be that once the matter was
withdrawn, to request the Investigating officer to re-enroll
the case
after a period of between 6 or 12 months, where after they would
re-assess the child’s ability to testify. It does
not mean that
the prosecution has failed or that there is no case against the
perpetrator. What it means is that the child is not
mature enough to
understand what it means to testify in court and would not be able to
withstand the rigors of such testimony.
[65]
Coming back to the arrest of the Plaintiff, it is clear on the
evidence of Vetman which I find probable, credible and convincing,
that he formed a reasonable suspicion that the Plaintiff had
committed rape, a Schedule 1 offence. In coming to such a conclusion,
it is clear that the First Defendant was satisfied that on the
objective and undisputed evidence – the statements under oath,
J88 medical report confirming injuries to the vagina consistent with
blunt trauma and the pointing out of the Plaintiff by the
child –
to affect the arrest of the Plaintiff.
[66]
With regards to the identification of the Plaintiff, it was clear
that the child said that she was raped by the shop owner
whom she
referred to as “
Mkhaya
”. The Plaintiff in
his evidence confirmed that he is the shop owner and that he is known
as “
Mkhaya
” by the child because the father of the
child comes from Butterworth, which is the same area from which he
comes. Furthermore,
Vetman testified that on the morning of 27 June
2013, he took the mother and the child to the Plaintiff’s house
because he
did not know where Plaintiff lived and he did not know the
Plaintiff. Only the mother and child knew who the Plaintiff was.
[67]
Further, the child indeed pointed out the Plaintiff as the alleged
perpetrator and as said earlier, I find Vetman’s version
regarding the pointing out as credible and plausible. The Plaintiff’s
version on the other hand regarding the circumstances
of his arrest
falls to be rejected as improbable. The court is convinced that the
First Defendant has shown overwhelmingly that
on the available
evidence, that the arrest of the Plaintiff was lawful and that he had
allegedly committed the offence as accused
of. The effect of such
arrest therefore was that the Plaintiff was in lawful custody and
lawfully detained until he was lawfully
discharged or released from
such custody.
Malicious
Prosecution
[68]
I will now deal with the question whether the prosecution of the
Plaintiff was malicious. In order to succeed with his claim
against
the Second Defendant for malicious prosecution, the Plaintiff must
prove that: (a) the Second Defendant set the law in
motion which
means that they instigated the proceedings; (b) the Second Defendant
acted without reasonable and probable cause;
(c) the prosecution has
failed.
[69]
Regarding the first requirement, it is clear that after the arrest of
the Plaintiff, the prosecutors in the service of the
Second
Defendant, based on the available evidence, proceeded to institute
the prosecution against the Plaintiff. The Second Defendant
called
the prosecutors in their service as witnesses to explain the process
as to how a decision is made to prosecute an accused
charged with a
sexual offence involving a child. This evidence was not disputed.
[70]
The second requirement which the Plaintiff must prove, is that the
Second Defendant acted without reasonable and probable cause.
The
Plaintiff relied on the dictum of
Relyant
[2]
to argue that the Defendant had no reasonable or probable cause for
the prosecution because they did not have such information
as would
lead a reasonable man to conclude that the Plaintiff had probably
been guilty of the offence charged. The argument is
further based on
the fact that the Plaintiff in court during the bail proceedings,
explained that he had an alibi which could be
confirmed by both his
son and his son’s friend [N…….], which was never
followed up by both Defendants. Ordinarily
this would have been
followed up by the Public Prosecutor by instructing the Investigating
officer to do so.
[71]
Notwithstanding this fact, the Defendants pursued the prosecution
against the Plaintiff. According to the Plaintiff, this fact
could
have raised the suspicion that someone else could have been
responsible for the rape of a child and not him. This fact shows
that
there was an absence of a reasonable and probable cause.
According to
Neethling,
Potgieter and Visser
[3]
:
“
There
is an absence of reasonable and probable cause for the prosecution
either (i) if there are, from an objective viewpoint, no
reasonable
grounds for the prosecution, or (ii) if, where such grounds are in
fact present, the defendant does not, viewed subjectively,
believe in
the plaintiff’s guilt. The defendant will thus be acquitted if,
on the one hand, there existed reasonable grounds
for the prosecution
and, on the other hand, he also believes in the plaintiff’s
guilt. The question of whether reasonable
grounds exist may
only be answered by reference to the facts of each particular case.
The facts must then reasonably, or according
to the reasonable
person, indicate that the plaintiff probably committed the crime.”
[72]
In this regard, both the Plaintiff and the Defendant relied on the
dictum of
Beckenstater
v Rottcher and Theunissen
[4]
where the court held as follows:
“
When it
is alleged that a Defendant had no reasonable cause for prosecuting I
understand this to mean that it did not have such
information as
would lead a reasonable man to conclude that the Plaintiff had
probably been guilty of the offence charged; if,
despite his having
such information, the Defendant is shown not to have believed the
Plaintiff’s guilt, a subjective element
comes into play and
disproves the existence, for the Defendant, of a reasonable and
probable cause
”.
[73]
Coming back to the facts of this case, it is clear that at the time
of the arrest and before the Plaintiff’s appearance
in court on
1 July 2013, the following evidence was presented to the Prosecutor
who dealt with this matter:
(a)
A statement under oath of the minor child;
(b)
A statement under oath of the mother;
(c) The statement
of the Plaintiff’s son which confirmed that he had been sent
away to another shop which confirms the version
of the child that the
son was sent to the shop by the Plaintiff in the time the alleged
rape took place;
(d) The statement
of the Plaintiff;
(e) The J88
medical report confirming the vaginal injuries to the child;
(f) The evidence
of Vetman stating that the child pointed out the Plaintiff;
(g) Vetman’s
statement regarding the crime scene, more especially, the bedroom
where the incident is alleged to have taken
place.
[74]
According to Ruiters, he considered the contents of the docket in
order to establish whether there was a
prima facie
case to
institute criminal proceedings against an accused. At that stage, he
was of such a view. In my view, viewed objectively,
if regard is to
be had to the contents of the docket, reasonable grounds existed for
the prosecution.
[75]
Returning to the Plaintiff’s allegation that a possibility of
an alibi was raised at the time of him giving evidence
during the
bail application and the prosecution proceeded with the case against
him notwithstanding the fact that they had such
knowledge. It must be
remembered that at the time when Ruiters made his decision, no such
evidence existed. This allegation was
also not conveyed to Vetman at
the time of the arrest of the Plaintiff and was raised for the first
time on 17 July 2013, after
a decision had already been made to
proceed with the prosecution against the Plaintiff. Ruiters as
well as Peter-Varoyi who
subsequently dealt with the docket could not
have been aware of this allegation because they were not the
prosecutors who dealt
with the bail application. They, in any event
held the view that even if they were aware of this allegation, they
would have followed
it up but enough grounds existed to proceed with
the prosecution, notwithstanding this allegation. There was enough
evidence to
prove a
prima facie
case.
[76]
The mere fact that an accused person raises the possibility of an
alibi during the bail application and at the early stages
of a
prosecution, does not mean that the Defendants, more especially the
prosecutors on reasonable grounds could not have believed
in the
Plaintiff’s guilt, given the totality of the evidence which
they had at their disposal. Objectively speaking, even
if there was
evidence of an alibi which the Plaintiff at that stage did not reveal
at the time of his arrest, such evidence was
countered or gainsaid by
strong evidence of identification by the minor child and her mother,
who the Plaintiff admits was known
to him.
[77]
There could therefore have been no doubt in the mind of the arresting
officer as well as the prosecutors that the person who
was identified
as the alleged rapist was the Plaintiff and no one else. If
this was raised later in the criminal trial, it
would have been up to
the court dealing with the criminal case to decide which version
should be preferred. That is in the
nature of a criminal trial
where an accused person is free to raise any defense. If the
criminal court in the later trial
believes it to be reasonably
possibly true, such person will be acquitted. On the other
hand, if it is rejected and the State
has proven its case beyond
reasonable doubt on the evidence as presented and which was initially
contained in the docket, such
person will be convicted. The
mere fact that a person raises a defense or presents evidence
thereof, does not mean there
is no reasonable or probable cause for a
prosecution. If this is to happen, then most prosecutions would
be regarded as malicious.
[78]
This fact alone, and weighed up in light of all the evidence, would
not in my view have been sufficient grounds on which the
Defendants
could not have believed in the guilt of the Plaintiff and in no way
could lead to the conclusion on this knowledge that
the Plaintiff was
innocent. I therefore find that the Plaintiff has failed to
show that his prosecution was without reasonable
or probable cause.
[79]
This brings me to the next requirement which is the presence of
malice or
animus
injuriandi
.
For the Plaintiff to succeed in proving this requirement, it must
show that the Defendant intended to injure (either
dolus
directus
or
dolus
indirectus
).
In
Relyant
[5]
the court held that
animus
injuriandi
,
and not malice, is to be proved before the Defendant can be found to
be liable for malicious prosecution as it includes not only
the
intention injure.
[80] In
Moleko
[6]
,
t
he
court held that
animus
injuriandi
includes not only the intention to injure but also consciousness of
wrongfulness:
“
In
this regard animus injuriandi (intention) means that the defendant
directed his will to prosecuting the plaintiff (and thus infringing
his personality), in the awareness that reasonable grounds for
prosecution were (possibly) absent, in other words, that his conduct
was (possibly) wrongful (consciousness of wrongfulness). It follows
from this that the defendant will go free where reasonable
grounds
for the prosecution was lacking, but the defendant honestly believed
that the plaintiff was guilty. In such case the second
element of
dolus, namely consciousness of wrongfulness, and therefore, animus
injuriandi, will be lacking. This mistake therefore
excludes the
existence of animus injuriandi”.
The
court went on to set a very high threshold for the Plaintiff to prove
this element in that it held further that “negligence
on the
part of the defendant (or, I would say, even gross negligence) will
not suffice
.”
[7]
[81]
I agree with the submissions of the Second Defendant that the
Plaintiff has failed to prove this element of the delict.
There
is no evidence before the court that the prosecutors in the service
of the Second Defendant were willful – i.e. that
the
prosecution of the Plaintiff in the awareness that reasonable grounds
for his prosecution did not exist.
[82]
The
last
requirement to sustain a claim for malicious
prosecution is that the prosecution against the Plaintiff has failed.
It is not clear
on what evidence the Plaintiff basis its argument
that the prosecution against him has failed. The Plaintiff in a
rather muddled
submission, argued that due to the fact that there is
a lack of DNA evidence which links the Plaintiff with the rape, shows
that
the prosecution has failed. In a different submission he
argued that the evidence of Ruiters and Peter-Varoyi as to the
reasons
why the case was withdrawn against the Plaintiff is not based
on any evidence but on assumptions they made. The court
therefore
has to in favour of the Plaintiff find that there was no
justifiable or rational reason for the withdrawal of the case against
the Plaintiff.
[83]
I do not understand this argument because it is clear and as
indicated on the charge sheet that the matter was withdrawn against
the Plaintiff because the victim, referring to the child witness, was
not ready. I cannot accept that the evidence of Ruiters and
Peter-
Varoyi to be mere assumptions as to why this case could not proceed.
It was never disputed that the matter was withdrawn
by the
prosecutors due to the fact that the child witness was not ready to
testify in court. These submissions were made due to
the fact that
these witnesses did not have an independent memory or recollection of
this particular case, but it failed to take
into consideration that
these witnesses testified that this is the procedure they would have
followed on a daily basis in dealing
with a prosecution where a child
is a victim of a sexual offence. Furthermore, these witnesses were
able to testify as to what
would have happened after having had
regard to the documents placed before them.
[84]
The submission, therefore, is without merit. I agree with the
submission of the
Second Defendant that the Plaintiff must
prove that the criminal proceedings were terminated in his favour.
What happened in this
matter is that the criminal proceedings against
the Plaintiff were temporarily terminated. It was not settled
by an acquittal
or a withdrawal thereof on the merits. It was always
the intention to institute the proceedings against the Plaintiff. The
reason
for the withdrawal of the matter at that stage against the
Plaintiff is eminently reasonable and rational, which is that in this
particular case and many other cases like these, where a sexual
offence is committed against a minor child, special circumstances
has
to be taken into consideration to ensure a successful prosecution
against perpetrators. This needs a lot of pre-trial preparation
of
such a child. This pre-trial preparation often involves an arduous
and painstaking task that requires a lot of patience, understanding
and expertise, not only from the prosecutor dealing with such a case
but also the investigating officer and other professionals.
Given the
nature of the offence which is the rape and violation of the physical
integrity and dignity of a child who usually needs
to be protected
against the alleged perpetrator, the police are under an obligation
to arrest such a person if reasonable grounds
exist, as happened in
this case.
[85]
This however, does not mean that the prosecution would be in a
position to place that evidence of such a young child before
court by
means of
viva voce
evidence which it is required to do in
terms of the provisions of the CPA. This in turn, means that the
child is to understand
the nature and the importance of the oath, or
where applicable, the ability to affirm his or her evidence, or it
must be determined
whether the child is not able to understand the
nature and importance of the oath and whether such evidence may be
given in criminal
proceedings without taking the oath or making the
affirmation.
[86]
According to the evidence of Peter-Varoyi this is exactly what they
were trying to achieve in cases like these. The child witness
also
needs to be prepared for the harsh adversarial system wherein he or
she will be required to testify in a court of law, as
well as being
subjected to the rigors of cross-examination. According to her, and
on this court’s understanding of the functioning
of these
courts, it more than often happens that the child victim of a sexual
offence would not have the ability to testify in
court due to
immaturity and lack of understanding. And it often happens that
the child would not be able to understand what
it means to take the
oath or affirmation or to distinguish between a truth and a lie. Even
though in terms of the provisions of
the CPA
[8]
the evidence of a child witness must be delivered in camera or by
means of close circuit television, a one sided screen and with
the
assistance of an intermediary.
[87]
It also often happens that the child witness lacks sufficient mental
and psychological development to meet the challenges of
testifying in
open court which is often a hostile and unwelcoming environment even
for the most seasoned and experienced witnesses.
These were the
reasons proffered by the Second Defendant for the withdrawal, which I
find imminently reasonable and justifiable.
[88]
Should prosecutors therefore not be given the opportunity to deal
with matters involving children in this manner, it will lead
to a
situation where perpetrators of sexual offences against children
would be acquitted and set free, if such children are not
properly
prepared to give evidence against perpetrators in sexual offences
courts. Under such circumstances, when perpetrators
are arrested and
the prosecutions are not malicious, can the State or the Second
Defendant be held liable by the alleged perpetrator
when it was
always the intention to prosecute such individuals, where they have
such evidence, but where the child witnesses lacked
the maturity and
ability to testify and present it to a court on the basis that the
prosecution failed, surely not. The Constitutional
Court
[9]
as per Ngcobo J (as he then was) said the following about the child
witness which is equally important in this case:
“
The
constitutional issues at stake here concern children who are
complainants of sexual offences. They are some of the most vulnerable
members of society. They are not parties to the proceedings, but they
have constitutional rights: the right to have their best
interests to
be considered is of paramount importance in matters concerning them.
Their status as non-parties severely limits,
if not eliminates, their
ability to vindicate their rights in those proceedings where
they are called upon to testify. This
makes them doubly vulnerable.
They have to depend, for the vindication of their rights, on others,
including courts before whom
they testify. The constitutional issues
at stake here are therefore important, and affect the administration
of justice
.”
[89]
To deal with cases of children who are victims of an alleged sexual
offence in this manner caters for their special needs and
would serve
their best interest as required by the constitution. Where the
circumstances of the child dictates that the matter
be withdrawn
provisionally, it was for a reasonable, rational and a legitimate
purpose. Therefore such a withdrawal cannot be regarded
as a failed
prosecution for the purposes of proving a malicious prosecution by a
Plaintiff. The Plaintiff given these circumstances,
failed to
prove that the prosecution has failed against him, which resulted in
the withdrawal of the case.
[90]
In the result therefore, I make the following order:
“
That
the claims against the First and Second Defendants are dismissed with
costs
”.
R.C.A. HENNEY
Judge
of the High Court
[1]
Section 3(1)(a)
of
Law of Evidence Amendment Act reads
inter alia as
follows:
“
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil
proceedings,
unless-
(a) each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;”
[2]
Relyant
Trading (Pty) Ltd v Shongwe and another
[2007]
1 ALL SA 375
(SCA).
[3]
J Neethling & JM Potgieter
Neethling-Potgieter-Visser
Law of Delict
(7
th
ed 2015) at p 366-367.
[4]
1955 (1) SA 129
(A) at 136.
[5]
Relyant
n
2 above at para 5.
[6]
Minister
of Justice and Consitutional Development v Moleko
[2008]
3 ALL SA 47
(SCA) at para 63.
[7]
Moleko
n
5 above at para 64.
[8]
Sec
153
,
170A
,
158
(5). See also the directives not yet gazetted in
terms of the Criminal Law (Sexual Offences and Related Matters)
Amendment
Act in relation to the application of s170A as well as 153
and 154.
[9]
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
2009
(7) BCLR 637
(CC) at para 200.