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[2018] ZAWCHC 133
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Lincoln v Minister of Safety and Security (A61/2018) [2018] ZAWCHC 133; [2019] 1 All SA 454 (WCC) (15 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A61/2018
REPORTABLE
In
the matter between:
ANDRÉ
EDWARD
LINCOLN
Appellant
And
THE
MINISTER OF SAFETY AND SECURITY
Respondent
Before:
ALLIE et BINNS-WARD et PARKER, JJ
JUDGMENT:
15 OCTOBER 2018
Order
(i)
The appeal is upheld in part and refused in part.
(ii)
The judgment of the court
a quo
is set aside and replaced with
an order in the following terms:
(a)
On the following charges plaintiff has not proved that a malicious
prosecution
ensued without reasonable and probable cause, namely, the
charges relating to drunk driving and fleeing the scene of an
accident.
Consequently, plaintiff’s claim in respect of
malicious prosecution on those counts are dismissed.
(b)
In respect of the remaining charges that plaintiff was charged with
in
the regional court, plaintiff’s claim against defendant
succeeds with costs, such costs shall include the costs of two
counsel.
(iii)
The respondent is ordered to pay the appellant’s costs in the
appeal,
including the costs of two counsel.
ALLIE,
J [PARKER, J CONCURRING, BINNS-WARD, J dissenting):
1.
This is an appeal against the dismissal of the plaintiff’s
claim with costs in the court
a quo.
2.
For the sake of convenience, the parties are referred to as
they were
in the court
a quo
, namely appellant will be referred to as
plaintiff and respondent as defendant.
The
Pleadings
3.
Plaintiff’s cause of action is as follows:
3.1.
Employees of the SAPS, namely Smith, Senekal, Bouwer, Knipe and
Rossouw, acting in the
course and scope of their employment with
defendant, wrongfully set in motion an investigation of plaintiff
without having reasonable
and probable cause to do so nor did they
have a reasonably held belief that there was any merit in the charges
that their investigation
laid the basis for. The said employees were
fully aware of the fact that the information that they obtained was
elicited by coercion
through the threat of prosecution of prospective
witnesses;
3.2.
The said employees’ conduct was so egregious as to evince
patent malice and a preconceived
notion that plaintiff was dishonest
and acted improperly for which notion, they then set about obtaining
support through wrongful
and unlawful means;
3.3.
As a direct consequence of the conduct of defendant’s
employees, plaintiff suffered
damages in the form of
injuria
and patrimonial loss.
4.
Defendant’s plea contains bald disavowals of knowledge
of
plaintiff’s allegations of impropriety by the said employees,
which amounts to a bare denial.
5.
The plaintiff’s reply to defendant’s request for
trial
particulars, which he confirmed as correct during cross examination,
contain the following relevant allegations:
“
THE LACK
OF REASONABLE AND PROBABLE CAUSE FOR PURSUING THE
INVESTIGATION WHERE STATEMENTS WERE NOT MADE VOLUNTARILY:
REFERENCE TO
INDIVIDUAL CHARGES
”
THE RENTAL OF THE
MAZDA 626 & THE AUDI
[Counts 1 – 10]
18.
Count 1 relates to the renting of a Mazda 626 and counts 2 – 10
relate to the renting
of an Audi vehicle for ten months. The
investigators claimed that the Plaintiff rented luxury vehicles [the
Mazda 626 from
Allisa Car Hire and the Audi vehicle from a private
company (Avis)] without the necessary authorization from
Commissioner
Kramer and that he fraudulently applied for extension of
the rental for the Audi on numerous occasions, which caused the SAPS
to
suffer financial loss.
19.
The Plaintiff himself never rented the Mazda 626 or the Audi vehicle
despite having the
right to do so. On 11 September 1996,
Captain van der Westhuizen, who was the person appointed by Fivaz to
assist the Plaintiff
with all logistical and financial needs, placed
a request with the Government Garage for an unmarked vehicle [not a
luxury vehicle]
to be used by the Plaintiff. Since the
Government Garage did not have any reliable vehicles available at the
time, Van der
Westhuizen rented the Mazda 626 vehicle from Allisa Car
Hire.
20.
Van der Westhuizen made it clear to Knipe and Rossouw that:
20.1
She had personally engaged with the Government Garage regarding the
renting of vehicles, and it was not the
Plaintiff who instructed her
to rent a car;
20.2
Although she had been given the ‘Order Book’ by
Commissioner Bosman of the National Office,
who also gave her full
responsibility and accountability to use it, within her discretion,
she in fact never did.
20.3
She did not even attempt to suggest to the Plaintiff that
Commissioners Kramer or Bosman should authorise
the rentals;
20.4
She was solely responsible for the Audi’s renewal notices and
it was she, alternatively her typist,
who had typed the notices,
knowing that the initial contract was intended for Officer Kader who
was from another Unit. The
process entailed extending the
existing contracts by simply informing the Government Garage thereof
after the Mazda had already
been written off by Kader. The
contract that was extended was for the Audi.
21.
Marais is the expert on the procedure for the rental of cars.
He referred to the policy
with the heading:
“
Magtiging:
Gebruik van Spesiale verhuringspakette van Budget Rent a Car en Avis
Rent a Car”
This document is marked
as top-secret. The relevant section reads:
“
Dit beteken dat
agente/berriggewers onder ander luukse motorvoertuie soos BMW’s
en Merceds Benze moet ry om indruk op sindikaatlede
te maak.
Dit is veral belangrik waar agente/beriggewers die sindikate sodanig
geinfiltreer het, dat daar direkte kontak tussen
agente/beriggewers
en sindikaat leiers is. Dit gebeur soms dat luukse voertuie
deel van die maatstaf vorm wat sindikaatleiers
gebruik om mense met
wie hulle kontak het, te evalueer.”
22.
It is therefore clear that the Investigators knew about this policy
as they had consulted
with Marais, and yet still they proceeded with
ten charges relating to the rental of the Mazda (Count 1) and
the Audi
(Counts 2 to 10).
23.
The vehicle rental policy goes as far as to allow for the rental of
cars as exotic as Porches,
depending on how sophisticated the
syndicate or suspect is.
24.
Viljoen made statements to the effect that the Audi charges were
devised by persons who
were jealous of members of the elite
Presidential Task Unit.
25.
The lack of reasonable and probable cause, and the malice and
unlawfulness of the decision
by the Investigators to proceed with the
spurious charges, can be summarised as follows:
25.1
The Plaintiff (being a Unit Commander with the rank of
Director) was fully entitled to rent a car for
an extended period,
without requesting Commissioner Kramer’s permission;
25.2
Despite this entitlement, he in fact never rented a car -
it was rented by van der Westhuizen;
25.3
Even if Kramer’s approval had been required, it would in any
event have been granted.
25.4
PITU had an ‘Order Book’ to rent cars but the
Plaintiff never made use of it;
25.5
Despite everyone involved in the PITU operation being well aware of
the fact that the Mazda 626 and the Audi
had been rented at the time,
not a single concern was raised until the Knipe Investigation made an
issue about it.
SUBSISTENCE AND
TRAVELLING [S & T]
[Counts 11 - 32 and 42]
26.
These are Counts of fraud, alternatively theft. As far as
Counts 11 to 31 are concerned,
it is common cause that the Plaintiff
was stationed in Pretoria but was seconded to Cape Town by President
Mandela to serve as
Commander of PITU.
27.
The crux of the S & T allegations is that the Plaintiff claimed
R111,00 per day for
S & T while he was staying in a safehouse
paid for by the State. Commissioner Kramer of the National
office, however,
stated that the Plaintiff would have been entitled
to stay in a hotel at a cost of up to R9 000,00 per month.
The choice
by the Plaintiff to stay in a safehouse and to claim S &
T (meals and beverage) therefore both saved the SAPS money and
caused the State no prejudice.
28.
Since the Plaintiff had only been a member of SAPS for just over a
year, he was clearly
ignorant as to the full nature and extent of
options available to him, specifically regarding accommodation and S
& T claims.
This is precisely why Van der Westhuizen was
assigned by Fivaz - to handle any of the Plaintiff’s
logistical
or financial issues. The Investigators knew or ought
to have known that Counts 11 – 31 lacked reasonable cause and
therefore they were clearly malicious in their prosecution thereof.
29.
Count 32 relates to a S & T claim during a one-night stay in
Johannesburg, to which
the Plaintiff had travelled on official
business. The booking had been made by van der Westhuizen on
the Plaintiff’s
behalf. The Plaintiff stayed in a
self-catering unit for which the State paid and he claimed R111,00
for meals, which is
a trivial amount in the context of Count 32.
In any event, the Plaintiff ought to have been entitled to this
amount since
his accommodation did not provide any meals.
30.
Count 42, another fraud charge, was withdrawn as it related to
queries from the SAPS which
were later paid.
SAFEHOUSES
[Counts 33 & 34]:
31.
The crux of Count 33 is the allegation that the Plaintiff defrauded
the SAPS by staying
over from time to time in a rented safehouse
situated in Rowenzory road, and not limiting his use of the safehouse
to its sole
intended purpose of briefing and debriefing of witnesses
and informants.
32.
The key point here is that the Plaintiff had been seconded to Cape
Town and it was therefore
the State’s responsibility to see to
his accommodation requirements. He was fairly new in the SAPS
and oblivious to
the safehouse policies. In any event, he did
not rent the safehouse, nor was he charged for doing so. His
only sin
was that he made a statement denying that he had stayed at
the house. Again the Plaintiff was entitled to have stayed at a
hotel costing approximately R9 000,00 per month, incurring
additional S & T claims for daily meals, however he did not.
The Rowenzory flat was considered State accommodation and the
Plaintiff caused no prejudice to the State by staying over on
occasion
when the need arose. He was, after all, embroiled in
an undercover operation at the time. Accordingly, it is clear
that there was absolutely no element of fraud in the Plaintiff’s
actions in this regard.
33.
Count 34 relates to the Higgovale safehouse, in which it was always
common cause that the
Plaintiff had stayed. He moved out of the
house of his own accord into a City Council house in Plumstead
because he was to
infiltrate the ranks of people like Palazzolo, and
various other underground figures, who all were unaware that he was a
member
of SAPS and the Head of a Presidential Task Unit. It was
therefore necessary for the Plaintiff to build a legend of a normal
family man, who lived in an ordinary house, so as not to raise any
suspicion - hence the Plaintiff’s decision
to move
from the luxurious Higgovale house to a City Council house where he
could live with his wife and children for the duration
of the PITU
Investigation.
34.
The monthly rental of the City Council house was significantly lower
than the Higgovale
property so it could never have been reasonable
for the investigators to suspect that its rental was prejudicial to
the State.
In addition, despite the house belonging to the
State, the rent was paid by the Plaintiff out of his own pocket.
THE ZEO GILLIOT
CHARGES
[Counts 35 – 37]
35.
The Investigators alleged that the Plaintiff had committed fraud by
paying two amounts of
R2 000,00 to Gilliot as informer fees to
which she was not entitled. The Investigators further alleged
that Gilliot
had never, in fact, worked for PITU as an informer.
Count 35 related to an alleged fraudulent claim for R2 250,00
for
operational expenses.
36.
The second claim [Count 36] was filed by captain Benn and certified
by Van der Westhuizen.
Accordingly, it was Smith and Benn who
had motivated the claims relating to counts 35 and 36, and not the
Plaintiff.
37.
Count 37 deals with an amount of R2 550,00 which was used for
the infiltration and
for fuel expenses of R50,00. The Plaintiff
initially requested an advance of R10 000,00, which he was paid,
however
he returned R7 450,00 of the advance to van der
Westhuizen since there was no reason for them to stay in Johannesburg
any
longer.
38.
Van der Westhuizen accepted the Plaintiff’s explanation for the
expenditure of the
R2 550,00.
39.
Gilliot also made various conflicting statements during the
Knipe/Rossouw Investigation.
40.
Although Knipe and Rossouw falsely asserted that Gilliiot had never
worked for PITU, Gilliot
in fact deposed to various affidavits in
which she confirmed
the many reports
she had compiled;
the information she had gathered; and the raid where she went
to the house “several times”
in Johannesburg.
41.
Benn is a witness who made nine inconsistent statements to the
Investigators.
THE PRISMAN
FILES
[Count 38]
42.
Count 38 was based on the false premise that a certain informer did
not exist and therefore
the R2 000,00 claim was fraudulent.
The informer was an employee who worked at the office of Prisman
(the attorney
of Palazzolo) where he was mandated by PITU to copy
certain documentation. During the investigation it was
confirmed that
the informer did indeed work in the offices of Prisman
and that he had indeed copied the requested documents.
43.
The Plaintiff believed that he was entitled to act as he did because
he was involved in
a legitimate intelligence-gathering exercise.
A motivated claim for the payment of this particular informer was
submitted
to the National Office and it was ultimately authorised and
paid by a Commissioner Bosman.
44.
Palazzolo paid for the Plaintiff’s travelling and accommodation
expenses when he accompanied
him to Angola. At that stage
Palazzolo was still unaware that the Plaintiff was investigating his
activities. The Plaintiff
submitted a claim to SAPS for these
expenses so he could reimburse Palazzolo once they returned from
Angola. The Investigators
alleged that the claim by the
Plaintiff was a misrepresentation.
45.
It is common cause that the Plaintiff accompanied Palazzolo to
Angola; that the trip
had been approved by Fivaz; and
that the SAPS would have to pay the related expenses. It is
also common cause that
the Plaintiff wrote to Mufamadi (Minister) to
inform him that Palazzolo insisted to pay for this trip.
46.
The Plaintiff explained that, after returning from Angola, he filed
an expenses claim which
was paid by SAPS and which he handed in an
envelope to Palazzollo’s secretary shortly thereafter.
47.
During the investigation, Viljoen’s assessment that the
Plaintiff had in fact reimbursed
Palazollo was based on three
factors: [1] Palazollo filed an affidavit where he
confirmed that he was reimbursed;
[2] He made a video
recording of his consultation with the secretary, who confirmed
receipt of the envelope; [3]
After Palazollo had chased
Knipe away after he approached him to depose to an affidavit, senior
officers from SAPS’ National
Head Office spoke to Palazollo at
La Perla restaurant in Sea Point, where Palazollo again confirmed
that he had been reimbursed
by the Plaintiff. It was only after
the Senior Officers from Pretoria told Palazollo that the Plaintiff
was actually investigating
him and that the Plaintiff was not his
friend - as he believed at the time - that
Palazollo decided to
change his version.
48.
Over the course of eight meetngs, Knipe placed enormous pressure on
Palazollo to deny that
he was ever reimbursed by the Plaintiff for
the Angola trip, in spite of which Palazollo deposed to an affidavit
in which he confirmed
that the Plaintiff had offered to reimburse
him.
49.
Despite the fact that Knipe had instructed Palazollo to make a
statement against the Plaintiff,
he still acknowledged in his
statement to Knipe that the Plaintiff reimbursed him by delivering
the envelope to his secretary
[Toi];
50.
Consultation took place between the prosecutor [Mr Bouwer] and
Palazollo where the
latter admitted that he received the money from
the Plaintiff.
FURNITURE THEFT
[Count 40]
51.
The furniture concerned had been purchased by the SAPS for the
safehouses. When the
Plaintiff moved out of the Higgovale
safehouse to rent the City Council property, for which he paid
himself, it is common cause
that he also removed the furniture and
took it with him.
52.
The Plaintiff was obviously accountable for the furniture, and he was
responsible for the
safe-keeping thereof. It would have been
absurd for him to leave the furniture behind in the Higgovale
safehouse after he
terminated the lease. The Plainiff was
building his legend as an ordinary person in the City Council house,
ostensibly far
removed from an underground Presidential operation.
The fact that he utilised the furniture for the duration of the
undercover
operation clearly does not rationally lead one to suspect
that he intended to permanently deprive SAPS of its ownership
thereof.
53.
In reality, the Plaintiff did not even use all of the furniture
concerned. The contents
in the docket (photos) taken by
the Investigators at the City Council house showed most of the
furniture wrapped in plastic.
It is for that reason that the
Investigators threw in the very skimpy charge of “removing
goods from someone’s
control with the intention of using it
without permission”. It goes without saying that the
Plaintiff himself had lawful
custody and control over the furniture
and that his removal thereof was entirely lawful.
ALVIRA
WILLIAMS-PEARCE
[Count 41]
54.
The Investigators alleged that the Plaintiff fraudulently spent
R2 099,00 of State
funds on a flight ticket from East London to
Cape Town, as well as accommodation expenses for Williams. The
Plaintiff’s
defence was that he intended to recruit Williams as
an informer so as to gather information directly from the office of
Palazollo.
55.
Williams is another witness who was threatened and intimidated by
Rossouw. As a direct
result of Rossouw informing her previous
employer that she would be a witness in the case, she lost her job.
When she started
a new job, Williams confirmed that Rossouw had
threatened that he would come to her “present employment
on 16 October
1998, to once again interfere at my place of work
- I found it as a threat because that is my work, ok, and I
found
it as a threat”
56.
Williams made two written statements to Rossouw.
57.
Rossouw approached her at 08.10 in the morning at her work place and
demanded a statement
from her regarding her interactions with the
Plaintiff, without ever informing her of the allegations which were
being levelled
against the Plaintiff. It was only later, when
Rossouw approached her a further time, that she drafted a more
detailed statement.
During the Investigation she told the
Investigators that, “[she] believe[d] that Mr Lincoln is
not guilty of the charges
against him.”
58.
The motivation for the flight ticket and accommodation is contained
in an information note
addressed to, and later approved by, a
Commissioner Blaauw.
MANGIAGALLI
[Counts 43 - 45]
59.
Count 43 is one of fraud and Count 44 is one of obstructing or
defeating the ends of justice.
It was alleged that the
Plaintiff had permitted the removal of a sentenced prisoner from
Pollsmoor Prison. Count 45 is for
unauthorised removal of a
prisoner in contravention of the Prison’s Act.
60.
Mangiagalli was indeed booked out of Pollsmoor Prison to be used as
an informer with knowledge
of various members of the Italian
underworld who were operating in the Western Cape. It is common
cause that the recruitment
of Mangiagalli was instigated by Captain
Benn and not the Plaintiff. Although the Plaintiff recommended
the recruitment,
it was eventually the Commissioner of Correctional
Services, Pretoria who authorised the removal of Mangiagalli
together
with certain conditions. It is further common
cause, as testified by a Gavin Meyer of the Independent Police
Investigating
Directorate and others, that Mangiagalli was briefed
and accommodated in the official safehouse.
DRUNKEN DRIVING
& LEAVING THE SCENE OF ACCIDENT
[Counts
46 & 47]
61.
The Plaintiff was involved in a collision with two stationary
vehicles while driving the
Audi in Bellevue Road, Oranjezicht on the
morning of Sunday, 27 July 1997.
62.
April, the Plaintiff’s friend who removed him from the scene of
the accident, made
three separate and inconsistent statements to the
Police.
63.
Benn was a section 204 witness. He gave 9 (nine) inconsistent
statements to Knipe
and Rossouw. Benn was threatened with
prosecution if he did not change his statement to incriminate the
Plaintiff.
64.
In a handwritten affidavit Benn also stated that he had not really
spoken to the Plaintiff
because the latter appeared confused.
However, he could not say whether the Plaintiff was under the
influence or whether
he had a knock against the head, but simply that
he was definitely not acting like himself.
65.
Dr Stoffberg is a medical practitioner with 22 years experience.
He saw the Plaintiff
on the 27 July 1997 after the Plaintiff’s
wife had called him twice to tell him that the Plaintiff had been
injured in a
motor vehicle accident.
66.
Stoffberg’s diagnosis was that the Plaintiff was suffering from
shock. He stated
that he was staring in front of him and was
somewhat incoherent. Stoffberg also concluded that the
Plaintiff’s confused
state was the result of concussion.
67.
Importantly, Stoffberg noted that he did not smell any alcohol on his
breath, despite being
in very close proximity to the Plaintiff while
examining his pupils.
68.
Stoffberg sent the Plaintiff to Christian Barnard Hospital for X-rays
and contacted a radiologist
on the same day.”
6.
The court
a quo
refused defendant’s application for
absolution and found that plaintiff had made out a
prima facie
case for defendant to meet at the end of his case.
7.
In the judgment on absolution, the court
a quo
made no finding
on plaintiff’s argument that but for the investigation by the
relevant police officers, there would have been
no dockets for the
prosecuting authority to consider. The court a quo found that at the
end of the plaintiff’s case there
was some merit,
prima
facie
, in that argument.
8.
The court
a
quo
failed
to evaluate the credibility and reliability of the witnesses, Knipe,
Fivaz and Rossouw with reference to the well-established
test
enunciated in
National
Employers' General Insurance Co Ltd v Jagers
[1]
and
SFW
Group Limited v Martell & Kie & Others
[2]
and chose instead to cast them as excellent witnesses.
Grounds
of Appeal
9.
The grounds of appeal are that the court
a quo
erred in the
following respects:
9.1.
Defendant
a quo
(who is the respondent) has a positive duty to
put its version to the plaintiff during cross examination but failed
to do so. Defendant
accordingly failed to challenge plaintiff’s
evidence by putting evidence to plaintiff that could rebut
plaintiff’s
version. Despite this, the court a quo failed to
draw an adverse inference against defendant’s failure to rebut
the plaintiff’s
evidence during the presentation of the
plaintiff’s case;
9.2.
The court
a quo
erred in finding that the plaintiff failed to
adduce evidence concerning the contents of the dockets, which
contents, would assist
the court in determining what objective facts
the investigators had when they decided to investigate appellant
because the dockets
contained the results of the investigation but
not what motivated the commencement of an investigation. Smith made
numerous concessions
that he omitted material facts. Those omissions
would have misled any person who read his report and affidavit.
Plaintiff’s
testimony
10.
Plaintiff discovered that a certain Mr Vito Palazzolo (‘Palazzolo’),
who was allegedly the sixth highest ranking member of the Cosa
Nostra, i.e the Italian Mafia, was allegedly engaged in an unsavoury
relationship with a certain Commissioner of Police and a cabinet
Minister. He reported this information to the Minister of Safety
and
Security at the time, who in turn informed President Mandela. The
President instructed the National Commissioner of Police
at the time,
to facilitate the establishment of the Presidential Investigation
Task Unit (‘PITU’) with plaintiff as
its head and the
unit was to operate outside of the usual chain of command of the SAPS
because of the serious and sensitive nature
of the investigations
that the unit was to undertake. The unit commenced in approximately
June 1996 from Cape Town and it had to
report to the National
Commissioner as well as to the President.
11.
Plaintiff explained although the unit was doing covert work, it
couldn’t
use the secret fund meant for covert operations
because the Commissioner who had a close association with Palazzolo
had access
to information involving the secret fund, hence PITU used
the open fund of the SAPS to fund its activities. Plaintiff used the
example of registration of motor vehicles directly into the names of
the members of the unit. According to plaintiff, it is a practice
to
so register vehicles in covert operations because then if an
ownership trace is done on the vehicles, it wouldn’t be traced
back to the SAPS. Plaintiff alleged that he was charged according to
the finance rules of accountability applicable to overt operations
because the open fund was used whereas in fact the PITU was a covert
structure.
12.
During its investigation, the unit exposed the creation of
counterfeit money,
racketeering and fraud that were being committed
by a police officer. US dollars as well as false matric certificates
and driver’s
licences were being printed in the basement of the
SAPS head office in Pretoria.
13.
The unit also continued with an investigation into an attempted
assassination
plot of President Mandela, which had stalled and the
unit retrieved a handcrafted rifle.
14.
The unit was instrumental in investigating two German nationals who
were ultimately
extradited to Germany.
15.
Plaintiff alleged that the activities of the unit was not welcomed by
certain
members of the SAPS who attempted to obstruct its work and
who resented the unit for allegedly having transgressed into areas of
investigation previously undertaken by other units in the SAPS.
16.
During October 1996, Plaintiff addressed a letter directly to the
deputy President,
the Minister, the National Commissioner and the
Divisional Commissioner complaining about obstruction and
interference by other
SAPS members.
17.
In response to that letter plaintiff met the deputy President and the
Minister
and thereafter the National Commissioner was tasked with
intervening in the conflict.
18.
During July 1997, the plaintiff again wrote to the deputy President
and the
Minister alleging that the investigation into Palazzolo was
being obstructed by a member of the unit, Smith, the Attorney-General
and the anti-Mafia Division of the Italian State Police. He allegedly
believed that Smith may have been recruited by the Italian
Police.
19.
On 15 August 1997, the National Commissioner arranged for plaintiff
to meet
him at his office but plaintiff approached the deputy
President who arranged a meeting which was attended by the National
Commissioner,
the deputy President, one Viljoen and the plaintiff.
The National Commissioner alleged that he had received reports of
serious
irregularities at the PITU and plaintiff complained about
interference. It was agreed that an investigation would be held into
the alleged irregularities in the PITU and that Director Leonard
Knipe would lead that investigation. The deputy President agreed
provided that the investigation was conducted for the correct
reasons.
20.
On 19 August 1997 Bouwer and Senekal produced an Information Note for
the National
Commissioner after having conducted an investigation
into complaints against the PITU. That investigation didn’t
include
consultations with the plaintiff as head of the PITU nor was
the plaintiff advised that he must remedy certain deficiencies found
in the operation of the PITU. In that note, the authors
recommend that: “
The continued existence of the
Presidential Task unit should be considered by top management
.”
21.
Despite that recommendation, on 29 August 1997, the National
Commissioner
addressed a letter to the plaintiff in which the
unit’s mandate and parameters were clearly described. The said
letter does
not terminate the PITU’s mandate.
22.
On 3 October 1997, the Mail and Guardian published an article
alleging that
the PITU was a political unit working outside the SAPS
and that serious charges were being investigated against it on the
instructions of the National Commissioner. The article also referred
to various covert operations being conducted by the PITU.
23.
On 5 October 1997, plaintiff wrote to the National Commissioner
alleging that
certain members of the SAPS revealed the information to
the media and that the leak not only compromised the PITU’s
investigations
but also placed its members and informers in jeopardy.
24.
The National Commissioner responded by instructing that departmental
steps be
taken against plaintiff because he perceived plaintiff’s
letter to be disrespectful and arrogant.
25.
On 11 November 1997, plaintiff wrote to the National Commissioner
complaining
about the failure to pay necessary expenses of the PITU.
26.
On 25 November 1997, the assistant Commissioner in charge of Finance
replied
in a letter in which he authorised payment of the increased
rent for PITU’s offices.
27.
On 18 February 1998, plaintiff was arrested and stood trial in the
Wynberg Regional
Court on 47 charges. He was convicted on 17 charges
and on appeal to the High Court he was acquitted on all charges.
28.
During the cross examination of plaintiff, counsel for respondent
clearly attributed
the commencement of the investigation into
plaintiff’s conduct at PITU to the following: Smith’s
affidavit dated 16
July 1997 and Superintendents Bouwer and Senekal’s
information note dated 19 August 1997. Plaintiff agreed with
respondent’s
counsel’s attribution.
29.
According to the judgment of the court
a quo
, Plaintiff
conceded that the charges involving Mangiagalli; drunk driving and
leaving the scene of an accident; would have been
appropriate to
investigate on the face of it but plaintiff alleged that there was a
hidden agenda to investigate him. In
my view, plaintiff’s
evidence which the court
a quo
correctly quotes at paragraph
80 of its judgment, is not a concession but a consistent allegation
that the investigation on those
counts, as with all the counts, were
motivated by malice.
30.
Zenzile Khoisan testified for plaintiff. He is the journalist who
received a
tape recording that Smith had allegedly made of Knipe in
which the latter is alleged to have stated,
inter alia
that
he’s tired of covert operations and he wishes to bring down the
ANC government. Khoisan said he received the recording
from a
very liable source who held a very senior position. Khoisan said that
he called Smith and played the recording to him. He
asked Smith to
confirm the veracity of the recording, which he did. He asked Smith
why he made the recording and Smith said that
he did so to protect
himself. Khoisan went on to publish articles in the media concerning
the content of the recording and no legal
action was taken against
him for doing so nor was he requested to withdraw the articles nor to
apologise.
Defendant’s
testimony
31.
Knipe testified that the Evaluation Section at SAPS’ head
office usually
investigated alleged irregularities in SAPS’
units. The people at that unit gave him a verbal explanation of what
they saw
as the problems and they gave him a handwritten statement of
Smith which then formed the base document from which he commenced his
investigations.
32.
Knipe said that the Information Note compiled by the people at
Evaluation Services,
namely Superintendents Bouwer and Senekal is
dated 19 August 1997 and Knipe had already received instructions from
the National
Commissioner to investigate in late July or early August
1997.
33.
Knipe said that the docket relating to the charge that emanated from
the motor
vehicle accident in which plaintiff collided with two
parked vehicles was opened at Sea Point police station. Then he went
on to
say that he believed that the docket was kept by Benn who was a
subordinate of plaintiff and he thought that was inappropriate.
When
asked why Benn had the docket, he said he couldn’t recall. He
has a selective memory in that he recalls that Benn had
the docket
but not why. That is clearly an indication that he had the intention
of implying that Benn had the docket because plaintiff
had asked Benn
to act corruptly. Even worse he doesn’t state for a fact the
docket was with Benn but states that he “thinks’
it was.
He was content to venture a guess that is prejudicial to the
plaintiff.
34.
Knipe’s evidence in essence is aimed at placing a larger than
normal investigative
role on the prosecutors during the course of his
investigation.
35.
Knipe clearly made a distinction between operational irregularities
of PITU
and alleged criminal conduct and said that his brief
was to investigate the latter. For example, allegations of the
Morroccans
and Project Quickfall being conducted in an untoward
manner, was meant to be investigated by the Evaluation Unit because
it involved
the operation of PITU. Despite that delineation, Knipe
didn’t consider the following to be operational matters that
ought
to be investigated by the Evaluation Unit: question of whether
Williams was in the process of being recruited; whether the vehicles
used by PITU members were registered in the names of the members for
sound operational reasons and whether it was necessary to
rent a safe
house and use it for residential purposes as part of the building up
of a legend.
36.
Senekal testified that his instruction was to evaluate the PITU’s
administration
and financial claims. He was approached by Smith
shortly after arriving in Cape Town to conduct the evaluation. He
consulted with
Smith on the same day that Smith had left the PITU.
Smith raised many complaints which he believed to be allegations of
criminal
misconduct by plaintiff. He spent two days making notes on
Smith’s allegations and then used his notes to formulate a 70
page affidavit which he wrote out for Smith to sign.
37.
From time to time Senekal used the word investigation instead of
evaluation
and it became evident that Senekal in fact conducted an
investigation albeit, on his own evidence, not thorough in as much as
he
didn’t investigate Smith’s motive for raising the
complaints. At the behest of Smith, he clearly strayed beyond the
instruction of evaluating administrative and financial
irregularities. He eventually handed the results of his investigation
and
his recommendations to the National Commissioner for his
decision.
38.
He harboured some suspicion that Smith was not acting entirely
honestly when
he later met Smith driving a big BMW vehicle which he
said was from Government Garage while Smith was on leave.
Nonetheless, he
used Smith’s affidavit as support for his
investigation.
39.
The preconceived notions of the employees of defendant were overtly
demonstrated
by the utterances of Knipe in the recording made by
Smith; by Knipe’s testimony in the regional court;
by Smith’s
testimony in the regional court concerning Knipe’s
zealous need for Smith to make a further statement setting out more
detail
concerning why he implicated plaintiff and by Bouwer and
Senekal’s method of convincing witnesses to make further
statements
which implicated plaintiff in the prosecution before the
regional court.
40.
Although plaintiff withdrew the claim involving the prosecuting
authority, as
the court
a quo
found that the investigators at
some stage conducted the investigation on the instructions of the
prosecutor, Adv Bouwer, his evidence
is accordingly relevant.
41.
Advocate Bouwer, the prosecutor in the criminal trial held in the
regional court
testified as follows. He said that he was involved in
the investigation by the police only once they produced statements
and he
drove the investigation as he believed in a hands-on approach
of a prosecutor in the investigation by the police. He was also
present
when statements were taken from senior management of the
police in Johannesburg/Pretoria. By contrast, Knipe said that Bouwer
was
involved in the investigation at a very early stage.
42.
Bouwer‘s testimony concerning why he proceeded with the charge
of fraud
based on money that plaintiff was meant to give to Palazzolo
as repayment of the expenses for their trip to Angola is curious. He
said that Palazzolo gave so many contradictory versions and because
Palazzolo was a suspect that the state was investigating, he
decided
not to use him as a witness to support that charge. (The magistrate
however called Palazzolo as a witness.) Bouwer goes
on to testify as
follow
s: “We did not want Palazzolo as a witness. The
problem is, on the
Angola case there is a charge
.
There is a criminal case to answer to
. It
relates to money that he claimed that
in our view on the
evidence was not repaid
.
” (my emphasis). If
Palazzolo was a key witness to the alleged failure to repay him, then
its inexplicable that the investigators,
including Bouwer could have
formed the view that there was a case to answer to and a charge to
bring, when they didn’t intend
calling Palazzolo as a witness.
What that
modus operandi
does demonstrate is an attitude of
throwing as much dirt at plaintiff and seeing what holds up in court.
That is indeed not the
actions of investigators who genuinely
believed there is reasonable and probable cause.
43.
Adv Bouwer said that plaintiff’s counsel was in fact saying
that he and
the other prosecutors involved were incompetent and that
he cherry-picked which evidence to use of state witnesses who
initially
gave exculpatory statements and later gave implicatory
statements. Plaintiff’s allegations in the pleadings and in his
testimony
are not that the investigators were incompetent, but that
they held a pre-conceived notion that he was guilty.
44.
Bouwer expressed extreme dissatisfaction with the reasons of the
appeal court
when it acquitted appellant on all charges. He
challenged the validity of those reasons and persisted with the view
that plaintiff
ought not to have been acquitted.
45.
When dealing with the charge of driving while exceeding the alcohol
limit and
fleeing the scene of the accident, Bouwer relied on the
credibility of the witnesses that implicated the plaintiff by
referring
to the professional status of the witnesses. He said the
following: “
And an advocate comes out and says: this man is
drunk and he gives strong evidence. I know concussion and drunken
driving is close.
There’s a professor in speech therapy- or in
speech at some university who saw him, who smelled him. There were
three, four
witnesses led who said he was intoxicated- either heavily
intoxicated or intoxicated
.”
46.
In fact, Adv Bouwer’s evidence in which he places strong
reliance on witnesses
based on their occupation, profession, status
is also duplicated by counsel for defendant when he refers to the
findings of the
regional court magistrate with reference to the fact
that he was a very senior magistrate, thereby implying his competence
is beyond
reproach. Plaintiff’s counsel also makes the status
of the judges in the appeal an important consideration when he refers
to their findings as being those of very senior judges.
47.
The approach outlined above of elevating people based on their
seniority or
status and of placing less store on others based on
their alleged unlawful/unsavoury activities is a most unsalutary one.
It does
not advance an objective analysis of a person’s
credibility with due regard to the probabilities.
48.
Adv Bouwer said during re-examination that counts 1 to 10 i.e. the
renting of
motor vehicles charges; counts 32 an 34 i.e the use of
safe houses charges; counts 11 to 31 and 32 and 42 i.e. S & T
claims
made by plaintiff were looked at because of the safe houses
charges; count 39 i.e. the Angola trip claim; count 40 i.e. the
removal and use of the furniture charge all arose from complaints
made by Smith.
49.
Adv Bouwer said that Count 41 i.e. the charge of claiming travel and
accommodation
expenses for Williams arose because plaintiff gave an
incorrect motivation for the claim even though Adv Bouwer
acknowledged that
plaintiff‘s testimony was that he had to
protect Williams by not disclosing her true role, namely that
Williams was a witness
instead of saying that she was a potential
source. Bouwer said that plaintiff could have given a broad, generic
motivation without
giving a false one.
50.
Counts 43 to 45 i.e. the release of Mangiagalli from custody charge
arose because
people who Mangiagalli had defrauded, had seen him
driving around as though he was free from custody. Those people
complained and
it was leaked to the media.
51.
Counts 46 and 47 i.e. the driving under the influence of alcohol and
fleeing
the scene of the accident charges arose from a docket being
opened at Cape Town police station.
52.
Former National Commissioner G Fivaz testified that his employment
with the
SAPS ended at the end of 1999. He explained that in terms of
the law, the plaintiff could never have been reporting to the
president
or the deputy president only because they could not be
plaintiff’s commanders. According to him plaintiff had to
account
to him, as National Commissioner but plaintiff clearly didn’t
want to do that so he constantly complained to the deputy president
that he was being sabotaged by sectors of the SAPS and even
investigated by them. He said that the initial mandate given to
plaintiff
was vague so on 29 August 1997, he gave plaintiff a written
mandate which not only spelt out the lines of reporting but also the
accountability procedures that PITU was subjected to as well as who
could authorise inspections of the work and function of PITU.
53.
Fivaz differed from Knipe in that he believed that Knipe was only
asked to investigate
PITU after the meeting between, plaintiff ,
Mbeki, Viljoen and Fivaz whereas Knipe said it was in July 1997, i.e.
before that meeting
took place.
54.
Smith admitted that he was suspicious of the close relationship that
plaintiff
had with Palazzolo and the fact that so many of Palazzolo’s
associates at the nightclubs knew plaintiff although he also admitted
that plaintiff would have been doing intelligence work on those
people before PITU.
55.
The crux of Smith’s dissatisfaction with plaintiff appears to
stem from
the fact that plaintiff didn’t discuss his activities
and plan with Smith and the latter felt that plaintiff wasn’t
doing the work that he was employed to do and therefore he assumed
that plaintiff was colluding with the suspects in their
investigation.
56.
Smith also exhibited a tendency to draw negative conclusions from
unsubstantiated
suspicions. He contradicted himself when he said that
while he and plaintiff was in Italy and Palazzolo called plaintiff,
Palazzolo
was informed by plaintiff that he was in Italy yet he later
said that Palazzolo already knew before he called that they were in
Italy.
57.
Smith blamed Benn for deliberately writing down the wrong address on
the warrant
for the search and seizure of a house in Johannesburg
even though Benn had written a letter expressing regret and
apologising for
his error.
58.
Smith said that Van der Westhuizen deliberately dated her statement
incorrectly
on a date before he left PITU and she couldn’t
have constructed her statement herself because she was Afrikaans
speaking,
hence he believed that she said that Smith intended leaving
the unit before he actually did so that Smith could be held
responsible
for irregularities in the unit.
59.
Smith believed that he had given the original recording that he made
of Knipe
allegedly threatening him to Adv Jacobs. He said that he
made no copy of the recording so he believes plaintiff or his
advocate
made a copy. He claimed to have no recollection of what
Knipe allegedly said in the recorded conversation which became the
subject
of a Mail and Guardian news article.
60.
Smith was presented with Adv Jacobs’ letter to the Bar Council
in which
he stated that the tape was copied with Smith’s
agreement. Smith didn’t remember that the original was ever
returned
to him.
61.
Mr Roussouw testified that at the end of August 1997, he was
Commander of Cape
Town Central detectives at the time of the
investigation into PITU. He was asked by Fivaz to join Knipe in the
investigation.
He admitted that he is part of club 35 but alleged
that it was a social, ‘braaivleis’ club.
62.
He said that the prosecutor became involved in the case when the
dockets were
almost trial ready only.
63.
He investigated the drunk driving case by taking statements from
witnesses who
alleged why they believe plaintiff was drunk. He relied
on those statements because no blood alcohol sample was taken from
plaintiff
at the time of the accident.
64.
He had no knowledge concerning why an open account was used to fund
PITU and
not the secret fund of the SAPS. He didn’t investigate
whether the rules of the secret fund or that of the open account
ought
to apply to PITU. He expressed the view that PITU nonetheless
remains accountable for its claims and conduct.
65.
A final statement was taken from Dr Stoffberg very late and only
after the case
had been running for a while in the regional court.
Evaluation
66.
Smith was neither objective as he had demonstrated in his dispute
with plaintiff;
in his penchant for sharing information with the
Italian authorities; in his inability to understand, believe or trust
plaintiff’s
modus operandi
in building up his legend
when plaintiff befriended known suspects and by his inability to
accept that the requests of the Italian
authorities couldn’t
simply be acceded to if they were in conflict with South African law
and procedure.
67.
It is common cause that plaintiff agreed with the National
Commissioner’s
decision to hold the investigation into PITU.
Plaintiff however didn’t have sight of Smith’s affidavit
and the
information note then. He and the National Commissioner
agreed on the need for an investigation based on different grounds.
The National Commissioner clearly relied on an oral account of the
content of the affidavit while plaintiff couldn’t have
relied
on the affidavit because he hadn’t seen it at that stage.
68.
Plaintiff was questioned during cross examination on the fact that
several complaints
were made that PITU had interfered with the
investigations of other units of the SAPS, such as, the Narcotics
Bureau, Cape Town
Central Police Station’s dockets, the Aliens
Investigation Unit, the Organised Crime Unit and the Syndicate Fraud
Unit. Plaintiff
agreed that he became aware of some complaints.
69.
It is interesting that the Commissioner who was alleged to have an
untoward
relationship with Palazzolo was the head of the Organised
Crime Unit and Smith who had worked in a branch of that unit
previously,
alleged in his affidavit that the Organised Crime Unit
was also dissatisfied with the
modus operandi
of the PITU.
70.
It was then put to plaintiff during cross examination that the
National Commissioner
as the officer who had to account for the
expenses of the PITU to the auditor-general, was justifiably
concerned about the administration
of the PITU. Plaintiff responded
by saying that the Commissioner in charge of finances, Bosman dealt
with the expenditure of PITU
in his affidavit. He also explained that
there was no cause for the National Commissioner to be concerned and
that if he indeed
was concerned, he wouldn’t have issued a
further written mandate enabling PITU to proceed with its work.
71.
Plaintiff’s response to the question that Smith didn’t
admit that
he lied in his statements to the investigators but merely
said that Knipe put him under immense pressure, is that that evidence
of Smith has to be evaluated objectively and not taken on face value.
That response of plaintiff in fact is a call for an evaluation
based
on the probabilities.
72.
To dismiss the bias that plaintiff attributes to defendant’s
employees
as conspiracy theories is to approach the common cause
facts and unchallenged evidence of plaintiff without an appreciation
of
the nuances they raise.
73.
Throughout plaintiff’s testimony there is a consistent refrain
that there
was a hidden agenda driving the decision to investigate
him. In substance, that allegation is one of attributing malice to
the
investigators.
74.
Plaintiff testified during cross examination that the witnesses at
his criminal
trial who lied in their statements to the investigators
would not have admitted in their testimony that they lied. Plaintiff
pointed
out that Zoe Gilliot, Van der Westhuizen, April, Dr
Stoffberg, Benn and Palazzolo all made more than one statement and
they changed
their initial statements from exculpatory to
implicatory. According to plaintiff, that fact ought to lead to the
conclusion that
they were coerced.
75.
In the case of Williams, she said that as a result of the
investigator informing
her employer that she would be a witness in a
criminal trial, she lost her employment and thereafter when the
investigator requested
another statement from her, she complied for
fear that she would lose her new job. According to plaintiff, she
however made an
initial untruthful statement and subsequently made
truthful statements when she realised the impact of her first
statement on plaintiff
after having read in the media that she was a
paid informer in PITU. In her later statements she clearly revealed
more than in
her first statement in as much as she explained in her
later statements that plaintiff arranged a job interview for her with
one,
Robert and then plaintiff explained to her that if she worked
for Robert, she had to keep plaintiff informed of what was happening
in Robert’s office.
76.
A person who found herself in the position of Williams, namely that
she was
being offered a job opportunity on condition that she spies
on her employer would most likely not be very willing to disclose
those
details in her first statement. As Williams said in her
testimony in the regional court, after reading about the criminal
case
against plaintiff in the media, she made her later statement.
Clearly at that stage, she understood the need to disclose that she
was requested to spy on Robert. Plaintiff was asked in the court
a
quo
why he wanted to recruit Williams and his answer was that he
needed someone in Palazzolo’s office that he could trust not to
divulge her spying mission to Palazzolo. While the plan and process
of planting a spy is indeed a sinister one, it clearly falls
within
the ambit of the work of the PITU. However it doesn’t lend
itself to the most probable reasonable inference that Williams
was
not being recruited and that her travel and accommodation was being
paid for by PITU for the dishonest purpose of financially
assisting
her as a friend of plaintiff’s.
77.
Plaintiff testified that he was in the process of recruiting Williams
as an
informant when PITU paid for her trip to Cape Town from
the Eastern Cape, where she lived at the time, for which payment he
was prosecuted.
78.
The investigation into the payment of Williams’ flight and one
night stay
in a Formula1 Hotel is a patent attempt by the
investigators to muddy the water so that it seems deep.
79.
During cross examination, it was put to plaintiff that his counsel
had not,
during the regional court trial, put it to all the witnesses
that he claims were coerced by the investigators, that they were in
fact coerced.
80.
Plaintiff testified at page 559 lines 15 to 24 of the record as
follows in response
in the court
a quo
:
“
M’Lady,
again I say, if that- if that was the line of questioning at the
time, it would have been appropriate. It was not
the line of
questioning what the- the line of questioning was to see where the
inaccuracies were. And I must say, M’Lady,
in the regional
court-in the magistrate’s court in Wynberg, it was not as in
depth as what it is now, we didn’t have
as much knowledge as
what we have now of this case, and where we can see, and where we can
see in terms of even with regards to
the appeal, where things went
wrong in this matter, M’Lady
.”
81.
The action in the court
a quo
was instituted after plaintiff
was acquitted of all charges on appeal to the High Court. Clearly at
the stage of his criminal trial
in the regional court, plaintiff
appears to have chosen different methods of challenging the state
witnesses during their cross
examination. At that stage he faced 47
charges, although he was convicted of only 17 eventually. At that
time, it would not have
been in the contemplation of plainitff nor
that of his legal representative, that he would bring a malicious
prosecution and/or
malicious investigation claim against the
Minister. Plaintiff’s legal representative’s failure to
challenge state witnesses
in the regional court on whether the duress
of the investigators led them to lie, can’t be held against
plaintiff in this
civil suit. To have challenged the witnesses on the
duress and lies aspect would have provided consistency for
plaintiff’s
current allegations of duress of witnesses but the
civil trial in this matter is not an extension of the regional court
trial and
any omission in those proceedings are not definitive of
allegations and counter-allegations in these proceedings.
82.
At the time of his trial, plaintiff’s attempts to place
Williams as an
informant close to Palazzolo had failed because
Palazzolo had been told of plaintiff’s operation against him by
the people
investigating plaintiff.
83.
It is common cause that Benn, April, Van der Westhuizen and Smith
were implicated
in allegations of wrongdoing by the investigators and
offered potential immunity in terms of section 204 of the Criminal
Procedure
Act. According to Knipe, it was fair to warn them of
the consequences of their actions.
84.
The plaintiff’s evidence concerning the resentment expressed by
Knipe,
Rossouw, Smith, Senekal and Bouwer towards the PITU, its work,
modus operandi
and how it was established is not only
uncontested but also confirmed by the views expressed by Smith,
Senekal, Knipe & Rossouw
towards covert units and their views on
the motivation given by PITU for some of the S and T claims.
85.
At the end of plaintiff’s case, his credibility remained
intact. At the
end of the trial, the evidence of defendant did not
impugn plaintiff’s credibility.
86.
It is patently obvious that since the claim for Williams had been
paid without
first being queried, the only way that the investigators
could have established that she wasn’t a witness but a
potential
source, was by consulting with her and taking her
statement.
87.
The investigators would not have done so had Smith not alleged that
she was
a friend of plaintiff’s former wife and that the claim
for her travel and accommodation was a favour for a friend.
88.
The court
a quo
evaluated Smith’s evidence as follows:
“
Observing his
testimony in chief, it became apparent that there was merit in the
plaintiff’s complaint that Smith had an over-inflated
sense of
his own importance… As his cross examination progressed,
Smith’s testimony became riddled with inconsistencies…It
became clear that Smith had embellished various matters concerning
the plaintiff, PITU and its members in his affidavit. …that
he
developed a deep rooted resentment towards plaintiff; and that he
also resented Benn… I have certain reservations that
Smith was
motivated by his professed desire to do the right thing. To my mind
it was more a case of him realising that the chickens
would come home
to roost and that he should take proactive steps to cover himself as
far as he possibly could… It is far
more probable that Smith,
who obviously had an axe to grind with the plaintiff, seized the
opportunity presented by Senekal to
spill the beans and at the same
time make life as difficult as possible for the plaintiff
.”
89.
I agree with the court
a quo’s
finding that Smith’s
complaints against the plaintiff were motivated by considerations
other than a desire to speak the truth.
90.
Smith’s patent omission of exculpatory facts in his affidavit
which formed
the basis of the investigation into plaintiff in
circumstances where Smith knew of the existence of those facts and
neither investigated
their veracity nor referred to them, are
indicative of the motives of Smith.
91.
While an investigator may employ improper motives without necessarily
vitiating
the investigation or subsequent prosecution, in this case,
there existed at the time of the investigation no objectively
rational
basis for holding the suspicion that the plaintiff had
committed all the offences for which he was being investigated, hence
it
can’t be said that they also held a proper motive of wanting
to ensure that plaintiff was convicted of the offences so that
he
could cease his alleged offending misconduct. None of the alleged
offending conduct, other than his relationship with Palazzolo
were
continuing conduct. If their intention was to procure the ceasing of
his relationship with Palazzolo, the prosecution of plaintiff
exposed
the covert nature of PITU’s
modus operandi
and intention
concerning Palazzolo, thereby effectively blowing PITU’s cover.
A charge of corruption between plaintiff and
Palazzolo would have
evinced an intention to stop that relationship from ensuing but no
charge of that nature was brought against
plaintiff.
Judgment
a quo
92.
In its judgment, the court
a quo
found as follows:
92.1.
Plaintiff had failed to prove that the defendant acted with malice or
animus injuriandi
and without reasonable or probable cause;
92.2.
In relying
on
Rudolph
v Minister of Safety and Security
,
[3]
the court found that plaintiff had not established that defendant’s
employees foresaw the possibility that they were acting
wrongfully in
as much as the court didn’t have an opportunity to scrutinise
the contents of the dockets and establish for
itself whether there
was sufficient incriminating material available to justify the
handing over of the dockets to the prosecutor.
92.3.
In relying
on the following extract form the case of
Woji
v Minister of Police
,
[4]
the court
a
quo
found that the defendant’s employees who conducted the
investigation, did no more than what could be expected of police
officers conducting an investigation because they gave a fair and
honest account of relevant facts to the prosecutor:
“
With regard to
the liability of the SAPS, the question is whether Inspector Kuhn did
anything more than one would expect from a
police officer in the
circumstances, namely to give a fair and honest statement of the
relevant facts to the prosecutor, leaving
it to the latter to decide
whether to prosecute or not. See Moleko at paragraph 11
…”
92.4.
In relying
on the following extract from
Minister
of Justice and Constitutional Development v Moleko
,
[5]
the court
a
quo
clearly
saw the plaintiff’s claim against the defendant as
misconceived, in as much as the court held the view that the claim
ought to lie against the prosecutor’s decision to prosecute and
not the police officers who conducted the investigation;
(The
plaintiff having withdrawn his claim against the Minister of Justice
and consequently not relying on any wrongdoing on the
part of the
prosecutor.)
“
[16]
Captain Gwayi testified that he had nothing to do with the decision
to prosecute Mr Moleko – he merely conducted
the investigation
and collected evidence. As far as he was concerned, the
decision to prosecute was ‘the prerogative
of the
National prosecuting Authority’.
[17] Based on
these facts, it is clear to me that Captain Gwayi at all times acted
on the instructions and under the direction
of the office of the
DPP. Neither he nor any other policeman employed by the third
appellant was responsible for the decision
to prosecute the
plaintiff. For this reason alone, I am of the view that the
appeal must therefore succeed insofar as the
third appellant is
concerned.”
92.5.
The court
a quo
found that the plaintiff’s failure to
deal with the full content of the dockets in the criminal case
against him was fatal
to plaintiff’s case. This finding was
made despite plaintiff’s case being understood by the court
a
quo
as being based on the decision to investigate with malice in
mind because the investigators held a preconceived notion that
plaintiff
had committed crimes and then set about trying to support
that notion in a biased manner. The finding is based on the court
a
quo
not having an opportunity to scrutinise the dockets to
establish for itself if there was reasonable and probable cause to
investigate
and refer the fruits of the investigation to the
prosecuting authority;
92.6.
The court
a quo
found that at the end of plaintiff’s
case, his version was largely uncontested;
92.7.
Plaintiff was not interviewed by Knipe and Rossouw until the criminal
case was almost ready for trial and
they must have relied on evidence
other than that which plaintiff presented to the court
a quo
,
to arrive at a decision that there was sufficient incriminating
material to produce to the prosecutor;
92.8.
Plaintiff failed to mention Fivaz in his pleadings as one of the
employees of defendant who allegedly acted
out of malice against him.
It was considered as strange given that plaintiff complained in
correspondence that Fivaz had conspired
against him;
92.9.
Plaintiff adduced no evidence in support of his allegations that
Knipe was involved in the Gugulethu Seven
massacre and the bombing of
Community House;
92.10.
It wasn’t suggested by plaintiff that Knipe was motivated by
malice when he investigated plaintiff’s
claim for an informer’s
fee for a person employed in the office of Palazollo’s
attorney. Instead plaintiff alleged
that many people wanted to know
the identity of the informer and that is why he was charged with a
count relating to that informer’s
fee;
92.11. On
plaintiff’s version Knipe wasn’t responsible for the
Mangiagalli dockets, nor the dockets
relating to drunk driving,
fleeing the scene of an accident, the
crimen injuria
,
disturbing of the peace charges and the attempted murder charges;
Plaintiff didn’t
mention the article in the Mail and Guardian written by Khoisan;
92.13.
Plaintiff didn’t disclose that his legal representatives in the
criminal trial had been given the
tape recording allegedly made of
Knipe that was later allegedly tampered with and given to Khoisan;
92.14.
Bouwer, Knipe, Fivaz and Rossouw were found to be excellent witnesses
while Senekal was found to be a credible
witness.
Probabilities on
allegations of Malice and Animus Injuriandi
93.
I turn now to a consideration of the probabilities concerning whether
the decision
to investigate and to hand the fruits of the
investigation to the prosecuting authority could have been actuated
by malice.
94.
To determine whether Knipe was actuated by malice, the court
a quo
didn’t have to determine that his alleged agenda was
fuelled by the “old guard” wanting to discredit and
remove
the “new guard.” The reason for the alleged malice
or intention to injure does not have to be proved to find that malice
and intention to injure was an integral part of the process that set
the law in motion.
95.
Knipe’s own evidence reveals scepticism towards the PITU. It is
demonstrated
by Knipe’s testimony that the complaints about
alleged irregularities in PITU was why he investigated plaintiff, yet
he failed
to investigate plaintiff’s allegation that PITU was
being interfered with by members of the SAPS who weren’t happy
with its work. If Knipe was indeed as fair-minded, impartial and
professional as he held himself out to be, he would have investigated
plaintiff’s known complaints as well and established the motive
behind the complaints of irregularities in the PITU.
96.
A further example of Knipe’s partiality is his evidence that he
proceeded
to investigate the S & T claims of plaintiff; the safe
house used by plaintiff despite seeing a letter from Assistant
Commissioner
Bosman in charge of finance that those items were
legitimately claimed and used by plaintiff. Knipe’s testimony
that those
investigations may not have formed part of the charges
preferred against plaintiff is untrue because the counts relating to
those
allegations of alleged misconduct were proceeded with in the
regional court.
97.
Knipe attempted to contextualise the threat of prosecution made to
witnesses
by saying that he had a duty to inform them when they broke
the law and that it was fair of him to do so. Knipe appears to have
adopted a selective approach to fairness in as much as he deemed it
fair to “caution” witnesses but not fair to interview
plaintiff early on as part of his alleged investigation into
irregularities at PITU and to “caution” him.
98.
Senekal testified that when investigating a unit, it was protocol to
first inform
the commander of that unit. Plaintiff as the head of
PITU knew only that the unit was being investigated for
irregularities and
not for criminal conduct allegedly perpetrated by
plaintiff.
99.
Senekal saw his function as that of gathering information and not
testing the
veracity thereof.
100.
It became clear that Senekal had commenced from an incorrect premise
when considering certain
expenditure of PITU when he drafted his
contribution to the Information Note.
101.
More pertinently, Smith said that he believed that Operation
Intrique, being the investigation
into Palazzolo conducted by PITU
was a farce and that plaintiff was in effect protecting Palazzolo.
102.
When Knipe testified at a hearing held by Italian judges concerning
the extradition of Palazzolo
he said that he believed that Operation
Intrique which was headed by plaintiff initially, was a false
pretence in that plaintiff
had actually carried out a false
investigation that covered (protected) Palazzolo. Knipe’s view
of the operation was not
supported by the charges that plaintiff
faced in the regional court because he wasn’t charged with
pretending to conduct
a covert operation which was not an actual
operation.
103.
Knipe had the background of a detective, having been stationed in the
old Murder and Robbery
Squad. Knipe‘s perspective of covert
operations was determined by his experience and exposure. Knipe
didn’t demonstrate
an appreciation of the need to keep a prime
suspect in a covert investigation from becoming embroiled in
prosecution for petty
offences when the suspect was being surveilled
and intelligence was being gathered to prove that the suspect is
engaged in far
more serious offences for which he could ultimately be
prosecuted, anymore than Smith did.
104.
Knipe’s views on Operation Intrigue shows that he couldn’t
have approached the investigation
of the PITU with an open mind.
Knipe’s testimony that he was appointed to the investigation
because he was “neutral”
rings hollow in the light of his
views and conduct.
105.
The fact that plaintiff initially had no difficulty with Knipe
conducting the investigation when
he met with the deputy President,
the National Commissioner and Viljoen can’t be held against the
plaintiff because clearly
at that time Knipe had not yet commenced
the investigation and plaintiff conducted himself in a reasonable
manner by agreeing to
Knipe conducting the investigation. At that
meeting, the decision was taken to investigate alleged irregularities
in the PITU and
not plaintiff in particular. When Knipe took the
decision to offer certain other members of PITU immunity subject to
section 204
of the Criminal Procedure Act, he did so with the
intention of implicating plaintiff. Knipe clearly had the intention
to implicate
plaintiff alone for what he allegedly perceived to be
PITU irregularities. He didn’t believe that those perceived
irregularities
could be dealt with as a departmental disciplinary
process because he had every intention to do his level best to ensure
that plaintiff
was prosecuted.
106.
The court
a quo
made the following assumption:
“
The plaintiff
had faced 47 charges and it is fair to accept that there must still
have been sufficient material in those dockets
to assist the court in
determining this essential element of his claim
.”
107.
The court
a quo
provides no reason for the assumption other
than an unexplained notion of fairness.
108.
The court
has to evaluate the credibility of Adv Bouwer, Knipe, Fivaz and
Rossouw with reference to their reliability, consistency
and the
probabilities and not merely determine that they were excellent
witnesses. In
National
Employers General Insurance v Jagers
[6]
the
approach of determining credibility in isolation from probabilities
was dealt with as follows:
“
It does not seem to me to be desirable for
a Court first to consider the question of
the credibility of the
witnesses as the trial Judge did in the present case, and then,
having concluded that enquiry, to consider
the probabilities of the
case, as though the two aspects constitute separate fields of
enquiry. In fact, as I have pointed
out it is only where a
consideration of the probabilities fails to indicate where the truth
probably lies, that recourse
is had to an estimate of relative
credibility apart from the probabilities.”
109.
In my view, the court
a quo
failed to evaluate the credibility
of Knipe, Rossouw, Bouwer & Fivaz with due regard to the
probabilities. The court a
quo
erred in seeking irrefutable
proof of what informed the investigation and prosecution and in
believing that that proof was to be
found in the dockets in
circumstances where plaintiff’s case is that the method of
investigation: i.e. not consulting plaintiff;
not testing the
veracity of Smith’s allegations with due regard to him
being disgruntled about PITU and plaintiff;
taking further statements
from witnesses who initially made statements that absolve plaintiff
and the wide ranging nature of the
investigation which culminated in
the 47 charges, when there already existed not only approval of the S
and T claims but also an
official pronouncement of acceptance of the
categories of expenditure by Commissioner Bosman and an acceptance
of the use
of the immovable property by plaintiff.
110.
In
Woji v Minister of Police
at [33] the Supreme Court of
Appeal set out the requirements for malicious prosecution as follows:
“
Malicious
prosecution
[33] Mr Woji had to
allege and prove that Inspector Kuhn:
(a) Set the law in
motion (instituted or instigated the proceedings)
(b) Acted without
reasonable and probable cause
(c) Acted with malice
(animo injuriandi) and
(d) The prosecution
failed.
See Minister of
Justice and Constitutional Development v Moleko [2008] 3 All SA
47 (SCA) para 8.”
111.
The court a quo found that plaintiff had met the first and last
requirements but not the second
and third requirements.
112.
The requirements of malice and
animus injuriandi
has to be
inferred from the conduct of Smith, bearing in mind that Smith ought
reasonably to have known that the allegations of
fraud that he
levelled against plaintiff as well as the allegation that plaintiff
had colluded with Palazzolo, were false. Despite
that knowledge,
Smith proceeded to depose to an affidavit in which he made those
allegations. The misconduct of Smith was perpetuated
by the
investigators, primarily because of their suspicions which they
failed to test against objective facts and with reference
to the
modus operandi
of a covert unit that was investigating
sensitive matters, namely, allegations of possible criminal activity
between Palazzolo,
a cabinet minister and a high ranking police
commissioner.
113.
In
Minister of Justice and Constitutional Development v Moleko
at
[20] the Supreme Court of Appeal held that there had to have been an
honest belief in the guilt of the plaintiff held on reasonable
grounds to prove reasonable and probable cause.
114.
I am not persuaded that Smith could have had a reasonable and honest
belief in the guilt of the
plaintiff.
115.
If the dockets did indeed contain evidence capable of proving beyond
reasonable doubt that plaintiff
had committed fraud, the state would
have been remiss in not adducing that evidence in the regional court
and in conceding the
merits of plaintiff’s appeal in the
criminal case.
116.
The alleged malice of Smith and the investigators would clearly not
have been found in the dockets
themselves. Malice would have to be
inferred based on what the court
a quo
had been presented with
in the evidence of plaintiff supported by documents that he relied on
and on the candid evidence of Knipe,
Senekal, Rossouw and Smith which
confirm that they held a bias against plaintiff and the PITU and a
lack of appreciation for the
need to be discreet in the submission of
claims for the payment of informants and witnesses. The nuance that
appears to have been
overlooked by the court
a quo
, is
the fact that even if, on the information contained in the dockets,
reasonable and probable cause to prosecute may have been
apparent, it
does not necessarily follow that reasonable and probable cause had
not been contrived.
117.
For the reasons advanced earlier concerning
inter alia
, the
method of investigation; the preconceived notions of the
investigators towards the covert unit initiated by politicians; their
lack of appreciation for the sensitive nature of the work undertaken
by PITU which had access to the open fund of the SAPS
as
opposed to the secret fund and the need to evaIuate by measuring the
defendant’s witnesses’
ipse dixit
that they
conducted the investigation in an impartial and professional manner,
against the probabilities, I find myself unable to
agree with the
court
a quo’s
finding that Bouwer, Knipe, Fivaz and
Rossouw were excellent witnesses.
118.
I am of the view that the probabilities do not favour defendant’s
version that there was
reasonable or probable cause to set the law in
motion for the prosecution of the plaintiff on all counts.
119.
In respect of the count of driving under the influence of liquor and
the count of fleeing the
scene of an accident, plaintiff has not
established a lack of reasonable and probable cause on the part of
defendant.
120.
I am of the view that the appeal should be upheld, in part and it
should be refused in part.
121.
To the extent that plaintiff has been substantially successful, costs
ought to be awarded in
his favour.
122.
The judgment of the court
a quo
should be set aside and
replaced with an order in the following terms:
122.1. On the following
charges plaintiff has not proved that a malicious prosecution ensued
without reasonable and probable cause,
namely, the charges relating
to drunk driving and fleeing the scene of an accident. Consequently,
plaintiff’s claim in respect
of malicious prosecution on those
counts are dismissed.
122.2. In respect
of the remaining charges that plaintiff was charged with in the
regional court, plaintiff’s claim
against defendant succeeds
with costs, such costs shall include the costs of two counsel and the
costs of the appeal.
R.
ALLIE
Judge
of the High Court
PARKER,
J:
I
agree.
M.K.
PARKER
Judge
of the High Court
BINNS-WARD J
(dissenting):
Introduction
123.
I write separately because in the main I take a different view of the
matter from that expressed
in the judgment written by my colleague
Allie J, with which Parker J has agreed.
124.
The appellant instituted an action against the Ministers of Justice
and Police (the latter cited
by the appellation ‘Minister of
Safety and Security’) claiming damages for malicious
prosecution. The Minister
of Justice was sued on the grounds of
his alleged vicarious responsibility for the actions of the
prosecuting authority and the
Minister of Police was joined on the
basis of his alleged responsibility for the acts of the police
officers who prepared and submitted
to the prosecuting authority the
cases in respect of which the appellant was arraigned in the regional
court. The claim against
the Minister of Justice was withdrawn
after the close of pleadings, and the trial in the court a quo
therefore proceeded only in
respect of the claim against the Minister
of Police, who is the sole respondent before us.
125.
At the commencement of the hearing the trial court acceded to a
request by the parties that the
issue of liability should be tried
and determined first, with the matter of how the damages (if any)
should be quantified stood
over for later determination. A
ruling to that effect was made in terms of rule 33(4).
126.
The court a quo adjudged that the appellant had failed to prove his
case on a balance of probabilities
and dismissed the action.
The judgment of the court a quo is reported on SAFLII, sub nom.
Lincoln v Minister of Justice and Constitutional Development and
Another
[2017] ZAWCHC 108
(22 September 2017). With the
leave of the learned judge at first instance, the appellant has come
on appeal from that decision
to the full court.
Factual background
127.
I find it
convenient to begin by contextualising the matter with my own summary
of the factual background to the proceedings at
first instance, as
provided in the evidence at the trial.
[7]
128.
The appellant was an operative in the underground intelligence
network of uMkhonto weSizwe in
the period before the transition to
constitutional democracy in the 1994 general elections. He was
thereafter integrated
into the newly established South African Police
Service (‘the SAPS’) - presumably in terms of
s 5
of
the
South African Police Service Act 68 of 1995
, pursuant to the
‘Rationalisation Proclamation’ defined in
s 1
of the
said Act. His appointment to the SAPS was made in the
relatively senior rank of ‘director’.
129.
In June
1996, the appellant made a presentation to the then President, the
late Mr Nelson Mandela, and the then minister in
the Cabinet
responsible for the SAPS, Mr Sydney Mufamadi, concerning the
desirability of an investigation into the allegedly
nefarious
activities of one Vito Palazzolo, a naturalised South African citizen
said to be a highly placed member of the Italian
mafia, and in
respect of whom the Italian judicial authorities had issued arrest
warrants.
[8]
The appellant
also drew to the attention of the President certain allegations
suggesting the involvement of a Cabinet Minister
and a senior member
of the SAPS in the allegedly corrupt activities of Palazzolo.
It would appear from the evidence that
he had come by this
information in the course of investigative work that he had been
engaged in earlier that year together with
one, Inspector Abraham
Smith.
130.
The
presentation resulted in directions being given under the President’s
hand to the then National Commissioner of the SAPS,
Mr George Fivaz,
to establish what was called the Presidential Investigative Task Unit
(‘the PITU’) under the command
of the appellant, and to
be manned by a complement of police officers chosen by him.
[9]
The PITU was charged with investigating the aforementioned
allegations reported on by the appellant to the President.
These included Palazzolo’s alleged links with ‘the
criminal underworld’ in Cape Town.
131.
The unit’s operations were designated by the codename
‘Operation Intrigue’.
Its activities were
subsequently expanded to include various other apparently sensitive
investigations.
132.
The
evidence adduced at the trial in the court a quo suggested that the
appellant was initially given an unconventionally free hand
in the
management of the PITU’s operations. This was illustrated
by the fact that in the first year or so of the unit’s
operations he reported on its activities directly to then Deputy
President Thabo Mbeki and/or Minister Mufamadi, instead of to
superior officers in the SAPS.
[10]
It also appeared that the PITU was empowered to take over
investigations from other units in the SAPS at will, and commandeer
their dockets for that purpose. This appears to have caused a
degree of tension with senior officers in certain other branches
in
the police force, which led to complaints being made from various
quarters to the National Commissioner. The internal
tension of
which I have made mention may well have been exacerbated by the lack
of trust that the appellant alleges prevailed at
the time between
some officers from the old order South African Police (‘the
SAP’) and those, who like the appellant,
had been integrated
into the newly established SAPS from the freedom fighter
organisations.
133.
Concerned about the effects of the unconventional line of reporting
of the PITU and by the complaints
about the unit that he was
receiving from various sources in the police force, and even from the
then attorney-general, Commissioner
Fivaz summoned the appellant from
Cape Town to attend a meeting with him in Pretoria in August 1997 to
discuss these issues.
In circumstances that are not entirely
clear from the record, but probably as a result of complaints or
concerns conveyed to him
by the appellant, Deputy President Mbeki
intervened to cancel the meeting called by Fivaz and, in its stead,
convene a different
meeting later on the same date at his official
residence, also in Pretoria. This meeting was to be attended by
the Cabinet
minister responsible for policing, the National
Commissioner and the appellant. A certain Inspector Piet
Viljoen of the PITU
also accompanied the appellant to the meeting
with the Deputy President.
134.
Mr Fivaz drew it to the Deputy President’s attention that
there were certain matters
of serious concern concerning the PITU
that he was duty bound to investigate arising out of the reports that
had been made to him.
Some of the reports made to the National
Commissioner had emanated from internal ‘audit’
investigations already set
in train by the police’s Evaluation
Unit represented by Superintendents Bouwer and Senekal. It
became evident that
an important basis for the further investigation
contemplated by the National Commissioner was the content of an
affidavit that
the abovementioned Inspector Smith - who had at that
stage recently resigned from the PITU in disenchantment - had
provided to
Superintendent Senekal.
135.
Smith’s affidavit described a number of alleged irregularities
concerning the appellant’s
use of the PITU. He alleged
that the appellant was in point of fact working in league with
Palazzolo. He also alleged
that the appellant was misusing
state resources; for example, by using a safe house hired by the
state for the accommodation of
himself and his family, as well as
using for his private purposes an upscale model motor vehicle hired
by the unit at state expense.
Smith had concluded his affidavit
with a statement requesting that ‘a comprehensive criminal
investigation be launched against
[the appellant] and those
associated with him’. Fivaz informed the Deputy President
that the contemplated investigation
could give rise to criminal
charges.
136.
Mr Fivaz
also conveyed to the Deputy President his difficulty with the
unconventional system of reporting concerning the unit’s
operations. It bears mention in this regard that very shortly
after the meeting at the Deputy President’s residence,
the
National Commissioner issued a revised mandate for the PITU, which
more clearly delineated the unit’s scope of operation
and line
of reporting.
[11]
137.
The upshot
of the meeting at the Deputy President’s residence was that it
was agreed that an investigation of the PITU could
ensue. There
was some discussion about the appointment of an officer who could be
regarded as impartial to lead the process.
(Then) Director
Leonard Knipe was agreed upon by all concerned, including the
appellant, as the suitable appointee.
(It was not clear at
whose suggestion Knipe was chosen. The appellant suggested that
it was at the suggestion of Inspector
Viljoen,
[12]
whilst Mr Fivaz testified to recalling that it was in fact the
appellant himself who had made the proposal.)
138.
The
investigations led by Mr Knipe ultimately culminated in the
appellant’s arrest in February 1998, and his subsequent
arraignment
on 47 charges in the regional court in Wynberg.
[13]
The investigations were conducted under the close supervision of a
member of the attorney-general’s staff, who later
acted as the
prosecutor in the criminal case. The decision to prosecute was
taken after a detailed review by a deputy attorney-general,
the
attorney-general himself, and finally by the National Director of
Public Prosecutions of the evidence that had been assembled
against
the appellant. The NDPP endorsed the decision to proceed with the
prosecution after entertaining written and oral submissions
from the
prosecuting staff and from the appellant’s side. In the
process it was decided not to proceed on all of the
matters that had
been submitted by the investigators. Some of them were dropped,
and others referred to be dealt with in
internal proceedings within
the SAPS.
[14]
This quite
extraordinary treatment of the decision to prosecute was apparently
on account of the perceived sensitivity of
instituting proceedings
against the commander of a police unit that had been especially
established at the direction of the President.
139.
The charges
brought against the appellant included several counts of fraud, one
of theft, a charge of obstructing or defeating the
ends of justice,
the unauthorised removal of a prisoner from a prison in contravention
of the Correctional Services Act and charges
of drunken driving and
leaving the scene of an accident. As the judge a quo noted,
‘the counts of fraud and theft all
pertained to alleged
financial and related irregularities by the plaintiff within the
unit, in particular his rental of two vehicles
without authority,
claims that he made for subsistence and travel allowances; rental of
two safe houses without the necessary authority,
payment of fees to
three informers, and theft of furniture from a unit safe house. The …
charges of drunken driving and
leaving the scene of an accident arose
from a collision in Higgovale in which the plaintiff was involved
early on the morning of
Sunday, 27 July 1997’.
[15]
140.
After a lengthy trial the appellant was convicted in the regional
court at Wynberg in 2002 on
15 counts of fraud and of drunken driving
and leaving the scene of an accident. He was sentenced to nine
years’ imprisonment
and ordered to pay a certain amount in
money to the state in compensation.
141.
The appellant appealed against the judgment of the regional court.
After several years
delay, the appeal was eventually heard by
Traverso AJP and Le Grange J in 2009. The appeal was
successful, and
the convictions and sentence were set aside. In
the result the appellant was ultimately acquitted and discharged on
all of
the charges upon which he had been tried. The
institution of the civil claim for damages for malicious prosecution
that came
before the court a quo followed three years later, in 2012.
The
essentialia of the case that the appellant had to make in order to
succeed in the court a quo
142.
It was not disputed, correctly so, that in order to succeed in his
action in the court a quo
the appellant had to prove on a balance of
probabilities –
142.1
that
the police officers identified in his claim
[16]
(acting within the course and scope of their employment) set the law
in motion (by instigating or instituting the criminal proceedings);
142.2
that they acted without reasonable and
probable cause;
142.3
that they acted with ‘malice’
(or
animo injuriandi
); and
142.4
that the prosecution has failed.
(See
e.g.
Minister of Justice and Constitutional Development and Others
v Moleko
[2008] ZASCA 43,
[2008] 3 All SA 47
(SCA),
2009 (2) SACR 585
, at para 8 and
Rudolph and Others v
Minister of Safety and Security and Others
[2009] ZASCA 39
,
2009
(5) SA 94
(SCA),
2009 (2) SACR 271
;
[2009] 3 All SA 323
, at para 16.)
143.
I consider that the appeal can be disposed of on a determination of
the narrow question of whether
the appellant satisfied the
requirement of showing that the prosecution had been instituted
without reasonable and probable cause.
The discussion that
follows therefore focuses primarily on that aspect of the case.
The appellant’s
case in the court a quo
144.
Only two witnesses were called in support of the appellant’s
claim at the trial; the appellant
himself and a certain Mr Zenzile
Khoisan. I shall discuss their evidence only to the extent
strictly necessary for the purpose
of this judgment. Any reader
seeking a more comprehensive review of the evidence is referred to
the judgment of the trial
court.
145.
The appellant’s evidence, which is reviewed at length in the
judgment of the court a quo,
traversed the charges that had been
brought against him and his explanations as to why he considered that
there had been no substance
in them. I must confess that I
found some of the explanations difficult to understand. For
example, it was not clear
to me why the appellant should have used
accommodation hired at his instance as safe houses for the PITU for
the accommodation
of his family. I also found it difficult to
understand why the appellant should have been entitled to draw a
subsistence
allowance for living in Cape Town, when it appears that
he had effectively been posted there indefinitely for the purposes of
the
PITU’s operation and had set up house there with his wife
and children. His explanations concerning certain payments
made
to informers and in reimbursement of money expended by Palazzolo in
taking him on a trip to Angola were also rather opaque.
The
appellant testified that some of the allegations concerning the
apparent financial irregularities of which he had been accused
had
arisen out of a lack of appreciation by his accusers that the PITU’s
covert activities were being financed out of the
SAPS open account
instead of - as would ordinarily be the case in such matters - out of
the secret account. According to
him, this was done to keep the
expenditure from coming to the attention of a senior police officer
alleged to be complicit with
Palazzolo, who had access to the
information on the operation of the secret account.
146.
Nothing turns on any of these matters, however, because the question
that the court a quo
had to determine at the end of the trial on
the separated issues was not whether the appellant was innocent of
the charges preferred
against him, but rather whether he had
satisfied all the requirements for his claim of malicious prosecution
on a balance of probabilities.
147.
In addition to giving reasons why he considered himself innocent on
the charges preferred against
him, the appellant testified that in
his opinion Messrs Knipe and Smith had been motivated by malice in
initiating and conducting
the investigation against him. He
made similar allegations against Senior Superintendent Rossouw, who
was Knipe’s principal
assistant in the investigation.
148.
Smith’s malice was attributed by the appellant to Smith’s
resentment at the manner
in which he was given a subsidiary role in
the operations of the PITU, in particular, by being superseded as
second in command
of the unit by a certain Captain Benn who had been
recruited to the unit by the appellant. The appellant also
suggested that
some of the content of the affidavit made by Smith
reflected outside influence by other policemen. That allegation
has to
be seen in the context of the appellant’s evidence that
he had been the target of a number of old order police officers.
149.
There was a very recognisable concurrence between many of the
allegations made in Smith’s
July 1997 affidavit and the nature
of the charges subsequently preferred against the appellant.
The only ones that were not
connected were those arising from a motor
vehicle collision in which the appellant had collided with two
vehicles parked on the
side of Bellevue Road in Higgovale, Cape Town
on 27 July 1997, some two weeks or so after Smith had made the
affidavit.
150.
Knipe’s malicious intent was attributed to his alleged
hostility to the appellant predicated
on the latter’s knowledge
of Knipe’s alleged involvement on behalf of the apartheid era
government in certain unlawful
operations conducted by the Security
Branch of the SAP. In this regard, the appellant alleged that
the Murder and Robbery
Unit of the SAP, to which Knipe had belonged
before the establishment of the SAPS, had played ‘a crucial
role in sweeping
those crime scenes’ to clear them of any
evidence that would link back to the Security Branch. He said
that Knipe had
been ‘a notorious name’ in the Murder and
Robbery unit.
151.
The
appellant acceded in cross-examination to a proposition by the
respondent’s counsel that his case essentially was that
‘[i]t
was the former Apartheid-era policemen who did not want you in the
province, who were malicious, and they contrived
and orchestrated
this process’. In answer to the question ‘Is that
what you are saying?’, the appellant
replied ‘That is
exactly what I am saying, M’Lady’. Later in his
evidence, and consistently with the allegation
he had made in his
particulars of claim, the appellant averred that the police had
procured ‘false statements against the
[appellant] … in
terms of section 204 of the Criminal Procedure Act from junior
officers, informers and other witnesses
who did not want to give
statements on a voluntary basis’.
[17]
152.
In this regard he named the witnesses as Inspector Smith, Captain
Dorothea (‘Thea’)
van der Westhuizen, Mr Anwar
April, Palazzolo, Captain Benn, Ms Zoe Gillot and Ms Alvira
Williams. He
named the same persons as having been threatened
with prosecution by Knipe and Senior Superintendent Rossouw
should they not
make incriminating statements against him. The
appellant also identified the prosecutor in the case, Adv Bouwer
of the
office of the then attorney-general, as having had a malicious
intent to harm him. But his counsel confirmed, in answer to
questions from the trial judge, that the claim was predicated only on
a so-called ‘malicious investigation’ by the
police, and
not on the actions of the prosecuting authority. The appellant
also confirmed in answer to a reiterative question
by the
respondent’s counsel that the aforegoing ‘complaints’
were ‘effectively the basis of [his] cause
of action’,
maintaining that ‘the malice [was] demonstrated by the fact
that these persons were threatened, they were
forced to make
statements against their will and they were made to lie in their
statements’. At another stage of his
evidence, the
appellant conceded that ‘central to his claim’ was his
allegation that Messrs Knipe and Rossouw had behaved
‘improperly
[by] going to witnesses, [and] placing them under pressure to get
then to incriminate [him] falsely’.
153.
Yet, under cross-examination by the respondent’s counsel in the
court a quo the appellant
was constrained to acknowledge that it was
evident from the transcript of the evidence at his criminal trial of
each of the witnesses
whom he alleged had been pressured to make
false statements against him that they had denied being pressured
into making false
statements against him. Indeed, it was shown
that Ms Williams had in fact made a second police statement that
differed
from her first statement in a manner favourable to the
appellant’s case, and that she had done so at the instance of a
friend
of the appellant’s. Those witnesses who had made
one or more contradictory affidavits during the police investigation
explained to the regional court that they had initially given false
statements of their own accord in order to protect the appellant.
They confirmed that the oral evidence that they gave in court was the
truth. The appellant did not call any of them to refute
the
evidence that they had given in the criminal court. Smith and
van der Westhuizen, who testified in the court a quo at
the instance
of the respondent, in point of fact reiterated their earlier denials
that they had been pressured into making false
statements.
Smith confirmed that Knipe had placed him under pressure during the
investigation, but made it plain that the
pressure had not been
directed at leaning on him to make false statements.
154.
It was actually of no moment for the purposes of the appellant’s
claim that a witness statement
may have been procured by the police
by putting the subject under pressure or threatening him or her with
prosecution. The
only things that are material in this regard
are that the police officer does not prevail on the witness to give
false evidence
and that the policeman does not use the statement for
the purposes of initiating a prosecution when he has no reasonable
belief
in the truth of the statement.
155.
In the result, the appellant’s evidence did not establish that
the witness statements procured
by the SAPS were falsely procured or
that their content was contrived. That highlighted the
importance to the appellant’s
case, if he were to be able to
succeed, of putting the content of the police dockets before the
court a quo to show that on their
face the evidence procured by the
police did not make out reasonable and probable cause and that the
police officers concerned
must have appreciated that there was no
valid basis to submit the cases for prosecution.
156.
As it was, the court was given insight into the content of only two
of the dockets - and that
in the course of the cross-examination of
the appellant by the
respondent’s
counsel. As the
discussion of that insight that will follow presently after my
treatment of Mr Khoisan’s evidence will
show, the evidence
concerning the content of those dockets was not helpful to the
appellant’s case.
157.
Mr Khoisan, the third party witness called in support of his claim by
the appellant, was a newspaper
journalist. He had written an
article in the Mail & Guardian newspaper in November 2000, during
the criminal trial against
the appellant, in which allegations were
made that Director Knipe had ‘used his senior position in the
police to intimidate
witnesses and threatened to topple the African
National Congress government’. It included the statement
that ‘
Knipe threatened to “bring
down” the ANC government if it
continued
with a covert operation aimed at exposing senior civil servants and
senior policemen connected to Mafia boss Vito Palazzolo
…
’
158.
Mr Khoisan testified that the basis for his article had been a
tape recording made
by Inspector Smith of an interview that the
latter had had with Knipe in the course of the police investigations
into the PITU’s
activities. He said that he had obtained
the tape from a well-placed ‘very senior’ source (whom he
did not feel
at liberty to identify), and had confirmed its
authenticity with Smith prior to the publication of the story.
He was unable
to produce the tape or say what had become of it.
159.
The court a
quo dealt in some detail with Mr Khoisan’s evidence and found
it to be contradictory and unreliable in certain
respects.
Mr Smith confirmed that he had indeed made a tape of an
interaction with Knipe and stated that he had given
it to the
appellant’s legal representatives during the criminal trial.
Subsequent communications between the appellant’s
counsel in
the criminal trial
[18]
and the
Cape Bar Council bore out Smith’s evidence in that respect.
Smith testified in the court a quo that he had
no recollection that
Knipe had uttered any threats to bring the down the government.
He also denied that he had ever spoken
to Khoisan about the content
of the tape.
160.
In my judgment, Khoisan’s contribution did nothing to cure what
had been lacking in the
appellant’s evidence. It might,
if its veracity were accepted, have served to provide material for
the appellant to
argue that Knipe had been moved by ulterior motives
in the investigation, but it did not in any way advance the
appellant’s
case that there had not been reasonable and
probable cause for the prosecution.
161.
Turning now, as promised, to a consideration of the content of the
two dockets into which the
evidence in the court a quo gave some
insight.
162.
It will be recalled that the appellant was acquitted on appeal on the
charges of drunken driving
and leaving the scene of the accident.
Those charges related to an event that it was uncontested had
occurred. The
appellant had driven the Audi motor vehicle hired
by the PITU that he was using at the time into two parked cars in
Bellevue Road
sometime between 7 o’clock and 8:30 on a
Sunday morning. The impact had been sufficient to dislodge one
of the
wheels of the Audi. In the court a quo the appellant was
taken by the respondent’s counsel in cross-examination to
several of the eyewitness statements in the relevant police docket.
These showed that a number of persons at the scene of
the collision,
including a practising advocate who lived in a house nearby, had
observed on the scene that the appellant had been
unsteady on his
feet and was unable to speak normally immediately after the
collision. Some of the witnesses stated in their
witness
statements that the appellant had smelled of alcohol. Some of
them also described how the appellant had been removed
from the scene
of the collision by someone in a white BMW before the arrival of the
police, who had been called to the scene.
163.
These witnesses had no connection whatsoever - or at least none that
was identified in the evidence
- to Messrs Knipe or Rossouw or
the police force. Their statements, considered together,
certainly made out a prima
facie case for prosecution. It could
not be suggested on the face of it that a prosecution instituted on
the basis of such
evidence would lack reasonable and probable cause.
Yet the appellant contended that it was only after Superintendent
Rossouw
took over the investigation that the case took some
direction. He stated that the terminology used in the witness
statements
to the effect that he had appeared to be strongly under
the influence of liquor indicated the malicious input of Rossouw.
He did not adduce any evidence from the makers of the witness
statements that their content was fabricated or false.
164.
In my
judgment the attempt by the appellant to categorise the charges
brought against him arising out of the incident on Bellevue
Road as
malicious prosecution was risible in the circumstances.
[19]
165.
The only other docket related to the charges preferred against the
appellant that the evidence
in the court a quo gave some insight into
was that concerning the charge of fraud related to the procurement of
an airline ticket
for the above-mentioned Ms Alvira Williams.
Both the statements of Alvira Williams referred to earlier evidenced
prima facie wrongdoing by the appellant that would have justified the
institution of the charge related to the expenditure of state
moneys
on her airfare from East London to Cape Town. Neither of the
statements given by Ms Williams bore out the reason
given by the
appellant in the written requisition for the flight ticket.
166.
The written requisition for the payment of Ms Williams’
airfare, ‘SAP Miscellaneous
Claim Form SAP 174’ was
supported by an ‘information note’ that stated that
Ms Williams was ‘a potential
source’ who could give
valuable information with regards to Operation Intrigue and had
direct knowledge of ‘the key
role players’.
Ms Williams, who was a friend of the appellant’s wife,
stated in her first witness statement
that she had no knowledge of
Operation Intrigue or of ‘role players’. In her
second statement she said that the
appellant had raised the
possibility of employing her as an informer, but it was evident that
no steps had been taken to engage
her in that capacity in the
intervening 5 months between her visit to Cape Town in September
1997 and the appellant’s
arrest in February 1998.
167.
It was irrelevant that the appellant sought to explain himself on the
merits of the charge to
the court a quo, and unnecessary for the
trial judge or this court to express an opinion on the persuasiveness
of his explanation.
The only matter of relevance was whether
the evidence in the state’s possession, assuming that it had
not been falsely procured,
sustained a decision that there had been
just and reasonable cause to prosecute. In my judgment (and
evidently also that
of the then Attorney-General of the Western Cape,
Mr Frank Kahn SC, and the then National Director of Public
Prosecutions,
Mr Bulelani Ngcuka), it did.
168.
More
importantly, however, the exercise that the respondent’s
counsel went through with the appellant in respect of the drunken
driving charge showed - as it was expressly indicated to the
appellant by the respondent’s counsel that it was intended to
-
that any assessment of whether there had been reasonable and probable
cause for the prosecution required a consideration of the
witness
statements in the relevant police dockets. If those statements
made out on their face a basis for the prosecution
(as the content of
the dockets in the driving offences and the Williams matters did),
then it ordinarily would follow that there
would have been reasonable
and probable cause for the institution of proceedings. This
much is illustrated by the following
observation by Cameron JA
in
Murray
v Minister of Defence
2009
(3) SA 130 (SCA),
[20]
at
para. 46: ‘
Prosecution
may be justified if there is a prima facie case, consisting in
allegations, supported by statements and real and documentary
evidence available to the prosecution, of such a nature that if
proved in a court of law through admissible evidence, should result
in a conviction
’.
169.
The position would be different, of course, if the evidence had been
falsely or dishonestly procured,
or the investigators had no belief
in the truth of the witness statements.
170.
The test for absence of reasonable and probable cause was formulated
by Schreiner JA as
follows in
Beckenstrater v Rottcher and
Theunissen
1955 (1) SA 129
(A) at 136A-B:
When
it is alleged that a defendant had no reasonable cause for
prosecuting, … this [means] that he 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 in the plaintiff’s guilt, a subjective element
comes
into play and disproves the existence, for the defendant, or
reasonable and probable cause.
That
formulation has been endorsed in a number of subsequent judgments of
the appeal court; see, for example,
Relyant Trading (Pty) Ltd. v
Shongwe and Another
[2006] ZASCA 162
;
[2007] 1 All SA 375
(SCA)
at para 14,
Maleko
supra, at para 57;
Minister of Safety
and Security v Tyokwana
[2014] ZASCA 130
;
2015 (1) SACR 597
(SCA), at para 14 and
Magwabeni v Liomba
[2015] ZASCA 117
(11
September 2015) at para 10-11.
171.
The test shows that in the context of the current case in
order to prove the lack of reasonable and probable cause the
appellant
had to show –
(i)
that the content of the police dockets submitted by the investigators
to the
prosecuting authority did not contain witness statements
and/or reveal the existence of real and documentary evidence that
would
show a reasonable basis for the institution of a prosecution;
and/or
(ii)
assuming that they did, that the investigators nevertheless
subjectively had no belief
in the truth of such evidence.
[21]
He
failed to do this. For that reason, the trial should, in my
view, actually have ended with an order - as sought by the
respondent
- for absolution from the instance at the end of the appellant’s
case. No prima facie case had been made
out.
172.
Despite being expressly alerted in the cross-examination as to what
would be required if he were
to succeed with his claim, and
notwithstanding that all the dockets had been discovered by the
respondent and made available to
him, the appellant neglected to show
that their content could not sustain the foundation for the bona fide
institution of the criminal
proceedings, nor did he show that the
witness statements and/or documentary evidence in the dockets had
been falsely procured.
There was also no evidence to prove that
the investigators did not believe in the truth of the content of the
witness statements
that they had procured. On the contrary, the
evidence adduced by the respondent through the testimony of Knipe,
Rossouw,
Van der Westhuizen and Smith was to the opposite effect.
173.
In the
circumstances, even assuming in the appellant’s favour that the
persons named in his pleading had acted maliciously
in the relevant
sense of the word (as to which I find it unnecessary to make any
finding), he failed to make out a case.
As Harms JA noted in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
,
2009 (2) SA 277
(SCA),
2009 (1) SACR 361
,
2009 (4)
BCLR 393
,
[2009] 2 All SA 243
, at para 37, ‘
A
prosecution is not wrongful merely because it is brought for an
improper purpose. It will only be wrongful if, in addition,
reasonable
and probable grounds for prosecuting are absent.
’
[22]
Conclusion
174.
In the result, his claim was correctly dismissed by the trial court
and his appeal had no merit.
175.
I would have made the following order:
The appeal is dismissed
with costs, including the fees of two counsel.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
1984 (4) SA 437
(E) at H 440E – H:
[2]
2003 (1) SA 11
(SCA) at [5]; Dreyer v AXZS Industries (Pty) Ltd
2006
(5) SA 548
(SCA) at 558E-G.
[3]
2009(5) SA 94 (SCA) at [18]
[4]
[2015] 1 All SA 68
(SCA) at [34]
[5]
2009(2) SACR 585 (SCA) at [16] and [17]
[6]
supra
[7]
A
more detailed account is given in the judgment at first instance.
[8]
By the time of the trial in the court a quo, Palazzolo was
incarcerated in Italy; it being common knowledge that he was
extradited
there from Thailand.
[9]
See
para. 11 of the judgment at first instance.
[10]
Section
207 of the Constitution, which was adopted on 8 May 1996, provides
that the National Commissioner must exercise control
over and manage
the South African Police Services in accordance with the national
policing policy and under the directions of
the Cabinet member
responsible for policing. Those provisions are reiterated in
s 11 of the South African Police Services
Act 68 of 1995, which
also provides that the National Commissioner is the functionary
responsible for ‘organis[ing] or
reorganis[ing] the Service at
national level into various components, units or groups’.
Section 218 of the Interim
Constitution (Act 200 of 1993) contained
equivalent provisions. Commissioner Fivaz testified that the
appellant had been
directed at the outset to report jointly to
himself and the President, but that the appellant had taken to
bypassing him and
reporting directly to Deputy President Mbeki
and/or Minister Mufamadi.
[11]
See
para 24 of the judgment at first instance.
[12]
Inspector Viljoen was a member of the PITU’s complement with
whom the appellant appears to have been on good terms.
Viljoen
accompanied him to the meeting with Deputy President Mbeki and,
together with the appellant, was admitted to the Deputy
President’s
presence, before Commissioner Fivaz who had been waiting outside,
was called in to join the meeting.
[13]
One of the charges (that in respect of count 42) was withdrawn by
the prosecutor.
[14]
The evidence was to the effect that the internal processes were not
pursued in the end because the appellant had been automatically
dismissed from the SAPS consequent upon his conviction and custodial
sentences.
[15]
In
para 29 of the judgment at first instance.
[16]
Director Knipe, Superintendents Rossouw, Bouwer and Senekal, and
Inspector Smith.
[17]
There
is actually no such thing as a ‘statement in terms of s 204
of the Criminal Procedure Act’. It is
apparent from the
context of his evidence that the appellant’s use of the
expression was intended to refer to the obtaining
of statements from
witnesses who might be expected or required to give
self-incriminating evidence in the course of their testimony
against
the appellant at his criminal trial.
[18]
Different counsel appeared for the appellant in this court and in
the court a quo.
[19]
It
bears mention in this regard that the witness statement of the
medical doctor who was called to the appellant’s house
to
examine him approximately three to four hours after the incident was
amended from the form in which it had originally been
given.
It was apparent from the evidence in the criminal trial to which
reference was made in the court a quo that the
amendment had been
procured at the instance of the member of the Attorney-General’s
office in charge of the prosecution,
not that of any of the
investigating policemen.
[20]
Also
reported at
[2008] ZASCA 44
;
[2008] 3 All SA 66
(SCA);
[2008] 6 BLLR
513
(SCA);
2008 (11) BCLR 1175
(SCA) and (2008) 29 ILJ 1369 (SCA).
[21]
It
would be a good defence for a defendant in a malicious prosecution
case to show that even when the evidence did not objectively
justify
the institution of a prosecution, he reasonably and honestly
believed it did; see
Tyokwana
supra,
at para 15.
[22]
See
also
Maleko
supra, at para 57, citing
Beckenstrater
supra, at 135D-E.