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[2018] ZAWCHC 179
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G.C v J.C (born P) and Others (14205/2014) [2018] ZAWCHC 179 (21 November 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 14205/2014
In
the matter between:
G
C
Plaintiff
And
J
C (born P)
First
Defendant
The
Minister of Safety and Security
Second
Defendant
The
National Prosecuting Authority of South Africa
Third
Defendant
JUDGMENT
DELIVERED ON 21 NOVEMBER 2018
BAARTMAN,J
[1]
In this action, the plaintiff claimed damages suffered pursuant to
the laying of alleged false rape, housebreaking and assault
charges
that resulted in his wrongful arrest, detention, malicious
prosecution and defamation. In this judgment, I deal only with
the
merits of the claim.
[2]
On 18 September 2012, the plaintiff’s ex-wife (
first
defendant
) laid charges of housebreaking, rape and assault
against the plaintiff. Members of the South African Police Services
(
SAPS
), represented in these proceedings by the second
defendant, the ‘Minister of Police’, arrested the
plaintiff. The National
Prosecuting Authority (
third defendant
)
proffered criminal charges against the plaintiff but withdrew them on
11 September 2013.
[3]
Prior to their divorce, the first defendant and the plaintiff lived
on the Driefontein farm in the Ceres district. After their
separation, the plaintiff moved into town while the first defendant
and their minor son (
L
) remained on the farm. On 18 September
2012, the first defendant presented with serious injuries to her face
and body sustained
in an attack the previous night. Apparent from the
photographs presented in this matter are the first defendant’s
swollen
and bruised face, bruises on her arms, buttocks, hips and
thighs as well as some lacerations.
[4]
The photographs further depict the former marital home in disarray –
a broken plate, a wall picture hanging skew, a broken
door with the
window smashed and the safety gate dislodged. In addition, a pair of
jeans and a T-shirt were lying on the floor.
[5]
Later that day at 13h40, Doctor Laubscher (
Laubscher
) examined
the first defendant and confirmed the injuries referred to above but
was unable to confirm whether the first defendant
had also been
sexually assaulted. At his insistence, a reluctant first defendant
laid the criminal charges referred to above.
[6]
Late that evening, warrant officer Boer (
Boer
) accompanied by
other SAPS members arrived at the plaintiff’s flat where he was
with his girlfriend, Ms T (
T
). The police arrested the
plaintiff. At the time, T resided in Worcester and was employed as a
waitress at the local casino. The
casino complex has a hotel. The
plaintiff explained that he and T had spent the night of 17 September
at the casino’s hotel
from where they left for Cape Town early
on 18 September.
[7]
The police detained him, although Boer telephonically confirmed that
the plaintiff had been at the casino and hotel the previous
night.
The next day, the police viewed video footage from the casino and
hotel complex which apparently confirmed the plaintiff’s
alibi.
However, the first defendant and her neighbour, Mr P (
P
),
attested to identical affidavits after viewing the same footage and
alleged that the plaintiff was definitely not the person
depicted in
it.
[8]
Although the state opposed bail, the plaintiff secured his release on
bail after an opposed bail application. He appeared in
court for
several postponements until 11 September 2013 when the third
defendant withdrew the charges. Unsurprisingly, the incident
and
subsequent court proceedings were covered in the media.
[9]
It is against that background that the plaintiff alleged that the
first defendant had caused him to be (a) maliciously prosecuted
and
(b) defamed as follows:
(a) ‘…20. …wrongfully
and maliciously intended to instigate criminal proceedings against
[him] and in fact caused
such proceedings to be instituted.
21. First Defendant had no reasonable
or probable cause for doing so, nor did she have any reasonable
belief in the truth of the
information given to the police
officials.’
(b) In respect of the defamation, he
alleged that the first defendant had ‘
wrongful and
defamatory intended to injure Plaintiff in his good name and
reputation;
intended that the false
allegations become known to the general public through court
proceedings and publication in the press;
and succeeded in having the
false allegations become known to the general public through
Plaintiff’s court appearances and
the press coverage…’
Claim
against second defendant
[10]
The plaintiff alleged that the SAPS members who had arrested him had
acted within the cause and scope of their employment with
the second
defendant. His action arose because those officials:
‘
28. …had no reasonable
or probable cause for arresting and detaining [him].
29. by arresting and detaining [him]
[SAPS] caused the prosecution and further detention of Plaintiff.
30. …SAPS officials acted
wrongfully in arresting and detaining [him].’
Claim
against third defendant
[11]
The prosecuting team involved in the plaintiff’s prosecution
acted within the course and scope of its employment with
the third
defendant. The plaintiff’s claim against the third defendant is
based on the allegation that:
‘
32 In opposing Plaintiff’s
application for bail and persisting with [his] prosecution for almost
a year the prosecution acted
without an honest belief founded on
reasonable grounds that such refusal and prosecution was justified.
33.…the prosecution officials
acted wrongfully in prosecuting Plaintiff on false charges.’
The
plea
[12]
The first defendant pleaded that her allegations were true,
alternatively that she held, and still does, the honest belief
that
the plaintiff was the perpetrator of the crimes committed against
her.
[13]
The second and third defendants pleaded that they had acted
reasonably in the execution of their respective constitutional
obligations.
Counter
claim
[14]
On 13 November 2014, the first defendant instituted a counter claim
in which she claimed damages arising from the assault and
rape
allegedly committed by the plaintiff. In April 2017, the first
defendant withdrew her counter claim. The withdrawal was motivated
by
a report from Doctor Panieri-Peter (
Panieri-Peter
), the first
defendant’s treating psychiatrist at the time, in which she
advised that ‘[the first defendant] will be
unable to
meaningfully testify in court in a matter which relates to
[plaintiff]’. That opinion prompted the first defendant’s
legal team to advise her to withdraw her counter claim.
[15]
The plaintiff did not testify; Panieri-Peter, however, did testify.
Below, I deal with the objection to her evidence and the
evidential
value if any thereof.
The
crime scene
[16]
I deal with the evidence to the extent necessary for this judgment
although I have considered all of it. N F (
F
), the first
defendant’s friend, received a call from L at approximately
06h00 on 18 September 2012. L told her that something
terrible had
happened to the first defendant who then came on the phone and asked
F to fetch L. She responded immediately. She
found the house in
disarray and the first defendant naked in bed. She was shivering and
had apparently been assaulted. On a question
from F whether it was
‘him’ (their manner of referring to the plaintiff) who
had assaulted her, the first defendant
‘acknowledged’. F
further said: ‘[first defendant] could really never say
[plaintiff’s] name’. The
first defendant urged F not to
tell anybody about the incident.
[17]
F contacted her husband who collected L. She went to P, the first
defendant’s neighbour referred to above, who contacted
Doctor
Laubscher when the first defendant refused to go to the police. F
accompanied the first defendant to the doctor. Major Luff
(
Luff
)
was the first police officer on the scene and he confirmed the scene
as depicted in the photographs referred to above. He contacted
Boer,
who was in charge of the Sexual Violence and Children’s unit.
[18]
F and the first defendant went back to the scene after the visit to
the doctor where they met Boer. In addition to the other
disturbed
items referred to above, there was wire around the lounge table. Boer
confirmed the condition of the house as depicted
in the photographs,
referred to above.
The
plaintiff’s case
[19]
The plaintiff attributed the breakdown of their marriage to
interference from his in-laws and neighbours. He denied that he
spent
his days either watching television or dressing up for town or the
casino while the first defendant ran the farm. Importantly
in this
matter, the plaintiff denied that the marriage had been characterised
by his abusive and controlling behaviour.
[20]
On 24 July 2012, Cloete J delivered judgment in the divorce action.
The plaintiff was disgruntled about the divorce proceedings,
therefore he arranged to meet the judge president on 18 September
2012 at 10h00. T was to accompany him to Cape Town. She, however,
had
to work on 17 September on a shift ending at 21h00. Therefore, they
arranged to stay at the casino’s hotel on 17 September
and
travel to Cape Town the next morning. The plaintiff said he left
Ceres at approximately 17h30 and arrived in Worcester shortly
before
21h00. He had a light supper and gambled until T completed her shift.
[21]
They then went to reception and booked a room for the evening.
Thereafter, they went to T’s home and collected her clothes.
Back at the hotel, T rested in the room while the plaintiff went back
to the casino until late evening. The next morning, the couple
left
for Cape Town where the plaintiff met the judge president. Thereafter
they spent time in Cape Town and returned to Ceres where
the police
found them. When confronted with the first defendant’s
allegations, the plaintiff produced the hotel receipt as
proof that
he had slept in Worcester the previous night. Nevertheless, he was
arrested and only released on bail 18 days later.
[22]
T confirmed that version. Nevertheless, the police detained and
formally charged him as indicated above. The plaintiff said
that
after Boer viewed the video footage, he accepted the plaintiff’s
alibi.
[23]
The plaintiff said he met Luff, the first policeman to arrive at the
crime scene, in the local Spar after his release. Luff
then told him
that he had lost respect for the first defendant and P as follows:
‘
I was the first one there,
Johnny told me that you placed her on the table, tied her up…I
have 25 years in the police…I
looked at the surface of the
table, it was full of dust,…the glass was outside the house,
not inside,…if you break
the window from outside the glass has
to be inside the house, not outside…I have no more respect for
these two…’
[24]
The plaintiff was recalled and testified that after he had testified,
he met the first defendant as she was driving into the
mall in Ceres.
The plaintiff was driving out. He said that she had looked at him in
a challenging manner, mocking him. He obtained
a video from the
Pick n Pay depicting the first defendant doing some
shopping. He said that she appeared calm after encountering
him.
[25]
T confirmed the plaintiff’s version in material respects. She
started her shift at 18h00 and ended at 21h00. They collected
her
clothes, booked into the hotel and the plaintiff left her in the room
to go back to gambling. At approximately midnight, she
called the
plaintiff. He was at reception and arrived soon after she called.
When the police confronted him, she tried to assist
him as best she
could.
[26]
Prior to the incident, she recalled that after the divorce, the first
defendant had come to the plaintiff’s flat to discuss
the
transfer of a motor vehicle to him. The first defendant returned with
some documents while the plaintiff was running an errand
and left the
documents with her. T said that their conversation was cordial and
that the first defendant had wished her a pleasant
day as she left.
[27]
John Saul (
Sauls
), the plaintiff’s attorney at the time
of his arrest, had represented the plaintiff in domestic violence
related matters
prior to the incident. On 18 September 2012, the
plaintiff contacted Sauls after the police had apprehended him. When
Sauls arrived
at the police station, Boer explained the allegations
against the plaintiff were that between 20h00 and 22h00 the previous
night,
he had attacked and raped the first defendant.
[28]
The plaintiff informed the police that he had spent the night at the
casino hotel in Worcester. He further produced the hotel
receipt from
which it was apparent he had paid with a card. Boer called the hotel
to follow up the plaintiff’s alibi. It
was confirmed.
Therefore, Sauls told Boer that an arrest under the circumstances
would be unlawful. Boer was not convinced.
[29]
Instead, he indicated that he wanted to search the plaintiff’s
flat. The plaintiff agreed. Once at the flat, the police
in the
company of Sauls, the plaintiff and T searched the flat and the
plaintiff’s car. After the search, the police detained
the
plaintiff until his release on bail.
[30]
Sauls spoke to Boer after he had viewed the video footage. Although
Boer did not discuss the footage, Sauls was adamant that
Boer told
him that he had nothing to worry about. Sauls said although the
police had all the evidence at an early stage, which
confirmed the
plaintiff’s alibi, the state still vigorously opposed bail.
[31]
Isaia Goshupelwang (
Goshupelwang
) had been in the security
industry since 1993. At the time of the incident, he had been with
the casino’s security company
for 15 years and security manager
at the casino for 5 years. He described the hotel and casino as two
separate buildings. At the
time, he was responsible for the outside
security cameras. They were monitored around the clock from a central
control room.
[32]
Although he was not responsible for the installation of the cameras,
he was sure that the date and time reflected on the footage
were
accurate. He worked from 08h00 to 17h00 and regularly entered the
control room to check the time and date reflected on the
monitors
against his own. He has never found the cameras out of sync. In
addition, there was a register, an ‘occurrence book’,
in
the control room in which the staff monitoring the cameras record
when they check the system. Any malfunction would have been
reported
to him.
[33]
The plaintiff was a regular at the casino and known to him. The room
the plaintiff booked had no burglar bars and the camera
facing that
window was not working at times relevant to these proceedings.
However, a second camera facing the road would have
detected the
plaintiff leaving the premises. He viewed video footage relevant to
these proceedings and was convinced that the plaintiff
was depicted
on it inside the hotel and casino area as alleged.
Defence
case
The
first defendant’s case
[34]
Laubscher was the part-time district surgeon of Ceres at the time of
the incident. The first defendant was known to him as
a patient from
his private practice. On 18 September 2012, he examined her. She
alleged that the plaintiff had raped and assaulted
her on 17
September 2012 at approximately 22h00. The first defendant had bathed
and changed her clothes prior to the examination.
The doctor
completed the required medical report, J88. The first respondent was
naked during the examination. He recorded the following
injuries:
‘
5. 1x1cm Bruise R nasal bridge,
Ecchymosis, L upper eye lid and swelling and medial L lower lid, 6x8
cm Bruising L upper arm posteriorly
1x1 cm bruise L elbow, 8x
Scratches over L&R back
Bruise 1x2 cm R para-lumbar, 2x
Bruises R scapula [1x2cm & 2x2cm]
2x Bruises R upper arm
posteriorly [6x3cm x2], 2x Bruises both [ASIC Anterior Superior Iliac
Crests] 2x3cm each, Both wrists swollen
and bruised with neuropraxias
to both hands, 15x6cm bruise L upper thigh, 8x5cm bruise L medial
side of the knee, 6x3cm bruise
R knee medially
Both buttocks bruised, [Was anxious
and did not speak much],
8. Assaulted.’
[35]
Laubscher said that the first defendant’s bruising was ‘quite
severe’. He was unable to determine whether
the first defendant
had been sexually assaulted. He said she might have suffered a ‘hard
blow’ to her genital area.
However, her anal area was more ‘red
than normal’.
[36]
Despite her injuries, the first defendant did not want to lay
criminal charges. The first defendant was sure that the plaintiff
would not have left any evidence as he was very meticulous. However,
Laubscher explained that he was ethically bound to report
the matter.
[37]
Tanya Van der Spuy (
Van der Spuy
), a clinical psychologist,
treated the first defendant from 25 July 2012 to 1 October 2012,
after her divorce. Van der Spuy said
that the first defendant had
complained of abuse during the marriage and displayed ‘intense
symptoms of anxiety (which at
times bordered on panic) when
attempting to recall and recount her experience of her relationship
with [plaintiff].’
[38]
Van der Spuy, confirmed her report in which she said the following:
‘…
Prior to the alleged
rape on 17 September 2012 I diagnosed [first defendant] with
Post-traumatic Stress Disorder (
PTSD
). At that time the most
prominent features were severe anxiety symptoms and an almost
complete absence of appropriate effective
response to the experiences
she was recounting (emotional bluntedness), as well as avoidance of
activities and situations reminiscent
of the trauma.…
In my opinion [first defendant]
suffers from Post-traumatic Stress Disorder, the symptoms of which
are consistent with exposure
to severe and ongoing threats to her
physical and emotional safety and integrity.’
[39]
P, a farmer since 2005, initially had a neighbourly relationship with
both the first defendant and the plaintiff. However,
in 2006, the
plaintiff and he had a fall out and never made up. P said that the
first defendant was the farmer, therefore he had
a closer
relationship with her as they shared farming interests.
[40]
He said that the plaintiff mainly watched television and did some
welding – building useless things. He said that the
plaintiff
usually got up at 11h00 and with some amusement indicated that the
plaintiff would then ‘dress well’ for
town. The plaintiff
is Italian and P a South African farmer. I accept that he does not
appreciate the plaintiff’s dress sense.
P recounted incidences
in which the plaintiff was abusive to the first defendant and
concluded that she was afraid of him.
[41]
He confirmed that he had viewed the video footage allegedly depicting
the plaintiff in the casino and hotel on the night of
the attack. He
was adamant that although T was depicted in the footage, the man with
her was not the plaintiff. He deposed to an
affidavit on 27 September
2012 in which he said: (own translation from the Afrikaans)
‘
3. The reasons I say that it
was not the accused:
1.
The person has an entirely different gait
2.
The style, cut and colour of his hair is entirely different
3.
His physique is different
4.
His hand movements are different to what I am familiar with
5.
His forehead appears larger
6.
The facial expressions are different
7.
This person was wearing permanent spectacles which are larger than
the reading glasses which he usually only uses for reading.’
[42]
L P (
P2
), the first defendant’s sister, described the
first defendant as an extrovert and happy person at the time of her
marriage
to the plaintiff in 2004. Initially the plaintiff was also
very friendly – he related tales about his work on the cruise
ships as well as about his family in Italy and Colombia.
[43]
However, shortly after the marriage, things changed for the worse.
The plaintiff became unfriendly and the first defendant
made excuses
for his behaviour and became nervous. The plaintiff would be easily
angered by insignificant things and become red
in his face and
scream. P2 often stayed over at the farm and saw the first defendant
taking responsibility for the physical farming
while the plaintiff
was lying in bed, watching television or gambling. There was no love
lost between P2 and the plaintiff and
she made no attempt to hide her
animosity towards him. She received a telephone call from the first
defendant’s friend informing
her about the attack and further:
‘…
that my sister just
wanted us not to sleep at home…because she had been threatened
by [plaintiff] that he was going to do
something to us. He
specifically told her that he can see the people… through the
brick holes in our wall by my parent’s
house…So we slept
at other places.’
[44]
Mr Braun, primarily the first defendant’s friend, confirmed the
plaintiff’s tendency for idle living while the
first defendant
took responsibility for everything else.
[45]
The first defendant agreed to testify after the plaintiff’s
counsel gave the assurance that the plaintiff would not be
in Cape
Town. On the day, she entered court accompanied by Panieri-Peter and
Ms Hesse, her junior counsel. She hesitantly approached
the witness
stand – she was pulling back while Panieri-Peter and counsel
encouraged her forward. The usher walked up to assist
which seemed to
scare her. Once in the witness box, she responded to my enquiring
about her language of choice as follows: ‘It
doesn’t
matter English or Afrikaans, I can’t – when I get upset I
can’t speak properly.’
[46]
When I tried to pacify her, she responded:
‘
Honestly, I – it’s
not a choice, I can’t talk, words doesn’t come out of my
mouth properly when I’m
upset, it doesn’t come out of my
mouth properly when I’m upset, it doesn’t matter which
language, it’s
just I can’t speak.’
[47]
Mr Olivier SC, the first defendant’s counsel, then asked for
the matter to stand down and indicated that according to
Panieri-Peter, the first defendant was not fit to testify. He
continued: ‘
Can I ask that she stands down, I am going to
call Doctor Panieri-Peter as a witness and perhaps we can attempt at
a later stage.’
[48]
Panieri-Peter was reluctant to testify because she was the first
defendant’s treating psychiatrist but, in the circumstances,
felt obliged to try to assist the court to understand the first
defendant’s reluctance or inability to testify. She said
that
on 17 September 2012, Mr Brand, the facilitator involved in the
contact arrangements between the plaintiff and L, requested
her, as
forensic psychiatrist, to assist the team involved in the contact
arrangements. They arranged to meet the following week.
[49]
However, the first defendant was attacked prior to the meeting and
Panieri-Peter was requested to see the first defendant on
an urgent
basis. On 21 September, she did and has continued to treat the first
defendant to date. She confirmed her report, dated
16 February 2017,
in which she said: ‘
I am in no position to comment on the
facts of the case, other than to say that from a psychiatric
perspective I have no doubt whatsoever
that [first defendant] was
attacked by someone, and that she was utterly terrified for her life
and brutalised both physically
and mentally.’
[50]
She concluded as follows:
‘
6. Regarding the evaluation of
belief, I record the following:
6.1
At no point is it my intention to attempt to usurp the role or
function of the Court in this matter.
6.2
As such, I am in no position whatsoever to pronounce upon the factual
correctness or otherwise of any allegations that have
been made –
in particular, with reference to the attack upon and rape of my
patient.
6.3
That notwithstanding, however, the evaluation of belief very much
forms part of a psychiatric assessment in clinical situations.
Belief
is part of thought process, and the evaluation thereof is part of the
mental state examination conducted by specialist psychiatrists
in
their daily work. Understanding the ideas, thoughts and beliefs of a
person helps make sense of their mental state. Assessing
belief forms
part of the assessment of a psychosis or an abnormal state of mind. I
record the following comments:
6.3.1 Evaluation of belief is
something that involves assessing whether the idea is, firstly,
bizarre or non-bizarre.
6.3.2 Evaluation of non-bizarre
beliefs is more difficult and specialist psychiatrists are trained to
evaluate beliefs in relation
to other factors relating to thought,
such as: (i) form of thinking; (ii) perceptual abnormalities; and
(iii) other signs
or abnormalities of thought.
6.3.3 Ideas held, that are echoed by
the ideas of others, help to determine whether thoughts are
considered delusional or not. Delusions
also usually occur in context
with other abnormalities of thought.
6.3.4 My psychiatric opinion regarding
the beliefs of Ms C, lies, therefore, as part of the evaluation
of thought form and
content, as part of a psychiatric assessment,
that has been done from the time I first met her and has been done
repeatedly throughout
the five years in which she has been my
patient.’
[51]
In an addendum, dated 12 June 2017, she concluded:
‘
18.3 While I am not able to
comment on the facts of the case, I equally have no doubt whatsoever
that Ms C believes the perpetrator
of her rape and attack to have
been her ex-husband. If that cannot be so, then it must have been
that the experience she suffered
on that night was similar in some
ways to other experiences she has suffered, or that there were
aspects of the experience that
caused her to believe it to be so. Ms
C is absolutely terrified of her ex-husband. She was even too
terrified to lay charges at
first. I am told that she was firmly
encouraged to do this by the medical attendant to her physical
injuries. Psychiatrically she
avoids her ex-husband. She is afraid of
him. At no point have I seen signs or symptoms of psychosis, and I am
not of the psychiatric
opinion that her ideas are delusional in
nature. If her beliefs cannot be true, as deemed by the Court, then
it is my psychiatric
view that she has a mistaken belief, rather than
any other psychiatric phenomenon or malicious intent.’
The
second and third defendants’ evidence
[52]
Boer confirmed that he had visited the scene and spoken to F and the
first defendant before he arrested the plaintiff. Boer
obtained the
plaintiff’s address and a photograph from the first defendant.
Before he went in search of the plaintiff, Boer
received the first
defendant’s A1 statement as well as the J88 medical report. He
detained the plaintiff although he had
telephonically confirmed the
plaintiff’s alibi with the hotel in Worcester. On 19 September,
he viewed the footage with constable
Maziza (
Maziza
) both
thought that the plaintiff was depicted in it.
[53]
On 20 September 2012, the plaintiff made his first appearance in the
magistrate’s court where the matter was postponed
to 27
September for further investigation. On 26 September, the first
defendant and P viewed the footage and made identical affidavits
in
which they claimed that the plaintiff was not depicted in the
footage. Boer was adamant that he had reasonable cause to arrest
and
detain the plaintiff.
[54]
The first defendant appointed a private investigator and an attorney,
Mr John Riley (
Riley
), to assist her in this matter. Boer gave
them regular feedback pertaining to the investigation.
[55]
The prosecution similarly alleged that it was acting reasonably in
pursuing the prosecution. Mr Bruiners (
Bruiners
), the
prosecutor in the bail application, cited the seriousness of the
offence and the fact that the first defendant feared for
her life as
reasons for opposing bail. He considered a postponement for 7 days
from date of the plaintiff’s first appearance
for a schedule 6
offence as standard procedure. In his opening address in the bail
proceedings, Bruiners told the court that ‘the
only information
about the time [of the offence] that’s available to the State
at this point was between 20h00 and 06h15’.
However, at
the time, he was aware that according to the J88 medical report, the
first defendant had indicated the time of the
offence as 22h00.
[56]
The matter was referred to the regional court for trial. Mr Daniels
(
Daniels
), a regional court prosecutor, attempted to arrange a
consultation with the first defendant. He was unable to as Riley
requested
that a female prosecutor attend to the matter. Daniels was
concerned about the merits of the matter as he thought the
plaintiff’s
alibi was water-tight. He thought the discrepancy
about the time of the offence should be clarified in a consultation
with the
first defendant. Ms Wagenaar (
Wagenaar
), the regional
court control prosecutor, said that her office made 2 unsuccessful
attempts to consult with the first defendant.
Evaluation
[57]
The plaintiff testified with great emotion. He was adamant that Luff
had told him that the glass had been on the outside of
the house and
that the indications were that the house breaking had been staged.
Curiously, the plaintiff admitted that the first
defendant had
sustained serious injuries as she alleged. He denied that the first
defendant had to bear the brunt of their farming
operation, despite
independent evidence to the contrary. He went to great lengths to
tarnish the first defendant, her family and
the neighbours. He was
often dramatic followed by an emotional display. However, his
evidence that he was at the casino at approximately
20h30 must be
accepted. It is corroborated by the video footage and T’s
evidence. His tendency to exaggerate, however, impacts
on his
credibility.
[58]
I accept that T was a credible witness. She was honest and there is
nothing improbable in her version. I accept that the plaintiff
entered the room with her at approximately 22h00. When he left the
room, he told her that he was going back to the gambling tables.
He
returned later after she called him. Similarly, she gave a clear
account of her interaction with the first defendant and did
not
exaggerate.
[59]
Sauls and Goshupelwang were both credible witnesses. Similarly,
Laubscher was a credible witness who was certain that the first
defendant had been assaulted but not sure about the allegations of
sexual assault. He described her mental state as indicated above;
there is nothing to gainsay it. I accept that the first defendant
told him that incident had occurred at 22h00 on 17 September
2012.
[60]
F gave her evidence in a straightforward manner; she candidly
admitted that the first defendant did not volunteer the identity
of
her attacker. She also admitted that the first defendant took a bath
despite her advice to the contrary.
[61]
Both experts, Van der Spuy and Panieri-Pieter, treated the first
defendant. Their evidence is seen in that light and lacks
the
independence required of an expert. However, their observations of
anxiety and inability to articulate traumatic events involving
the
plaintiff are relevant. These observations were made prior to these
proceedings and I am persuaded that the observations are
reliable.
Laubscher made similar observations. F said that the first defendant
could never really say the plaintiff’s name.
[62]
Both parties relied on the findings of the magistrate, dated 12 May
2011, in a domestic violence matter between them. That
court
described the application as:
‘…
[the plaintiff] seeks
to set aside the order, he consented [to] on the basis that he is in
fact a farmer and the owner of the farms,
that [the first defendant]
rather leave the farm, move to town to look after their 5-year-old
son and let him continue with the
farming activities….’
[63]
That court concluded:
‘…
What further
transpires, in the testimony of [first defendant] is that [the
plaintiff] is obsessively jealous and follows her everywhere
she
goes. …
From the evidence it is clear that
there is no physical abuse towards [the first defendant]. …The
evidence of [first defendant]
is that when the [plaintiff] gets mad
and is verbally abusive towards her, she must rather leave his
premises for fear of being
assaulted by him. She and her child had to
leave the house on occasion to seek refuge with friends due to fear
of being physically
assaulted.
The evidence shows that the
[plaintiff] is mentally and psychologically, emotionally and
verbally…abusive and expresses his
love by sending [first
defendant] sms.
The conduct of the [plaintiff] falls
squarely into the definition of this Act. His conduct is leading to
unwanted stress…harm
to such an extent that [the first
defendant] testified that her hair is starting to fall out and that
she is unable to sleep properly.
She lives in constant fear.
…
[the first defendant] made
out a strong case of family violence towards her as we find in the
Act.’
[64]
The plaintiff relied on the judgment in support of his evidence that
he did not assault the first defendant. However, no reasons
were
proffered why the finding that the first defendant had made out ‘a
strong case of family violence towards her as we
find in the Act’
s
hould be rejected. Curiously, the plaintiff criticised
Panieri-Peter’s reference to first defendant’s
allegations of
‘…terrible things (that) happened to her
before within her marriage’ and ‘horrifying experiences
that
are certainly very congruent with one’s understanding of
domestic violence’. The domestic violence court’s
findings
support the observations.
[65]
The objective findings of symptoms generally associated with anxiety
are persuasive. These findings were made before this litigation
was
launched. Panieri-Peter met the first defendant days after the attack
relevant to these proceedings and her observation on
that occasion is
supported by Laubscher and F. The abusive behaviour which led the
magistrate to conclude that the domestic violence
interdict should
remain in place had a debilitating effect on the first defendant.
[66]
Luff was a credible witness and testified without any hesitation. I
have considered that he has experience in testifying; nevertheless,
I
am persuaded that his version is to be accepted where it differs from
the plaintiff who tends to exaggerate and dramatise. Luff’s
version accords with the probabilities. It follows that I accept that
Luff did not tell the plaintiff that he thought that the
housebreaking was staged.
[67]
Boer was taken to task for the manner in which he executed the
plaintiff’s arrest. I accept that Boer went to arrest
the
plaintiff. Prior to the arrest, he consulted with the first
defendant, F and P and saw the crime scene. He admitted that he
had
confirmed the plaintiff’s alibi in respect of his stay at the
hotel before detaining him but after his arrest. He also
admitted
that he was satisfied that the plaintiff was depicted on the video
footage. Boer was a credible witness.
[68]
The prosecutors, Ms Wagenaar, Mr Bruinders and Mr Daniels, were
credible witnesses. I deal with the criticism of their methodology
below.
Should
the hearsay evidence be allowed?
[69]
The first defendant did not testify; however, her complaint to the
police, the A1 statement, was annexed to her plea. The request
is to
have that statement admitted in terms of
section 3
of the
Law of
Evidence Amendment Act, 45 of 1988
. The section provides:
‘
3. Hearsay evidence – (1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at
criminal or civil proceedings, unless
–
(a)
each party against whom the
evidence is to be adduced agrees to the admission thereof as evidence
at such proceedings;
(b)
the person upon whose
credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence
might entail; and
(vii)
any other factor which should in the opinion of the court be
taken into account,
is of the opinion that such
evidence should be admitted in the interests of justice.’
[70]
These are civil proceedings; the first defendant’s counsel
described the purpose for the admission of the evidence as
follows:
‘…
to describe the
prevailing facts and circumstances during the attack on First
Defendant, most of which, in particular the consequences
of the
attack, are confirmed by other witnesses, with regard to the
condition of the house, Plaintiff’s injuries and her
emotional
state.’
[71]
Mr Potgieter SC, the plaintiff’s counsel who appeared with
Mr Maartens, submitted that the affidavit was before
court and
was referred to in the evidence, therefore there was no reason to
admit it as hearsay evidence. In addition, so the submission
went,
the first defendant’s ‘charade’ in the witness box
should not be confused for anything else.
[72]
Generally, it would be prejudicial for the plaintiff to be unable to
cross-examine the first defendant. I consider that the
plaintiff has
had the first defendant’s affidavit for some time – at
least since 21 October 2014 when the first defendant
filed her plea.
The plaintiff had the opportunity to rebut the allegations and in
fact did so. The plaintiff now accepts that the
first defendant
‘sustained extensive injuries on the night of 17/18 September
2012 on the farm Driefontein, Ceres’.
[73]
As indicated above, on 12 May 2011, in a domestic violence matter,
the magistrate found: (it bears repeating)
‘
The evidence shows that the
[plaintiff] is mentally and psychologically, emotionally and verbally
…abusive and expresses
his love by sending [first defendant]
sms’.
The conduct of the [plaintiff] falls
squarely into the definition of this Act. His conduct is leading to
unwanted stress…harm
to such an extent that [the first
defendant] testified that her hair is starting to fall out and that
she is unable to sleep properly.
She lives in constant fear.’
[74]
It is against that background that the first defendant’s
appearance in the witness box must be viewed. In 2011, she was
already so stressed and scared that she was losing sleep and hair. I
bear in mind that in November 2012, Van der Spuy diagnosed
the first
defendant with post-traumatic stress disorder; her observations at
the time bears repeating;
‘
the most prominent
features were severe anxiety symptoms and an almost complete absence
of appropriate affective response to the
experiences she was
recounting (emotional bluntedness), as well as avoidance of
activities and situations reminiscent of the trauma.…’
[75]
On 18 September 2012, hours after the attack, Laubscher noted that
the first defendant ‘
Was anxious and did not speak much
.’
Soon thereafter, Panieri-Peter made the following observation:
‘
So she was brought to my
offices and really it was not possible to get a history from her. It
was quite clear in the moment that
she was both physically and
mentally extremely unwell at that time…She was trembling and
she couldn’t really speak.’
[76]
Laubscher is an expert and gave credible evidence. I gather from his
evidence that the first defendant was reluctant to lay
criminal
charges. Van der Spuy’s observations were made prior to the
attack but are relevant as they suggest a history of
anxiety in
relation to her relationship with the plaintiff. The criticism
against Panieri-Peter as an expert witness is well founded:
as the
first defendant’s treating psychiatrist for many years, she
must lack the independence required of an expert. However,
that does
not mean that she could not testify about her observations described
above. Laubscher made similar observations days
earlier.
[77]
I noted that the first defendant appeared as if mentally challenged,
like a frightened 16-year-old. After the first defendant
left the
witness box, I enquired whether she had to drive home – I did
not consider that a good idea. I am persuaded that
the first
defendant was too anxious to testify on the day. Mr Potgieter
submitted that if she was unable on the day, which was
not admitted,
she could have testified later and even from outside the court
building. In theory, the submission is irrefutable.
[78]
However, one has to consider the first defendant’s mental state
in May 2011 as indicated in the domestic violence judgment
referred
to above – hair loss and sleep deprivation due to stress. She
has been in therapy since this incident. I have also
considered the
video of the first defendant ably doing her shopping after she
encountered the plaintiff at the entrance to the
shopping complex. Mr
Potgieter submitted that she appeared normal despite having
encountered the plaintiff. The significant aspect
is that the
plaintiff posed no threat to her as he was leaving the complex and
there were people in the mall.
[79]
The symptoms of anxiety were observed only in relation to traumatic
interactions with the plaintiff. In those instances, she
displayed
‘...an almost complete absence of appropriate response to the
experience’. Ordinarily, she was able to function
normally as a
mother and a farmer. I am persuaded that her reaction in the witness
box was not a ‘charade’; instead,
it was a reaction to
the traumatic experiences between her and the plaintiff.
[80]
I have also considered that much of the content of the affidavit has
been corroborated by police officers in the course of
their duty. It
is also not the plaintiff’s case that the assault on the first
defendant was fabricated. I am persuaded that,
in the circumstances
of this matter, it is in the interest of justice to allow the
evidence in terms of
section 3
(1) (c) of the Act. It is
important to bear in mind that the plaintiff dealt with the evidence
sought to be admitted. In the
circumstances of this matter, the
interest of justice trumps the perceived prejudice as the former
represents a legislative prescript,
broad public interest and the
boni mores.
[81]
The first defendant said the following in the affidavit: (own
translation from the Afrikaans)
‘
On Monday, 2012-09-17 at 18h30
she was unsettled because her dogs barked continuously. L went to bed
at 20h00 and she went to check
whether the gate was closed. En route
she met David and Poon Malherbe and told them about the dogs and her
unease. David undertook
to check the gate. I parked the ‘bakkie’,
locked the doors and lit a fire. I had a shower and watch television
where
I fell asleep. I woke up hearing something break. The
television was still on but the fire was out therefore it must have
been
late. I was not afraid as I thought that the wind had blown
something over. I went towards the kitchen because that was where the
noise came from.
The next moment, my ex husband, G,
pushed me against the kitchen table. He wore a very smooth material
jacket and a cap on his head.
I screamed because I got a fright. I
cannot remember what he said in response.
He pulled me down the passage with my
arms behind my back. He trampled on my thighs while I was lying
on the floor. He was
very aggressive. I did not fight back because he
would just have become more aggressive. He ripped my t-shirt off. I
also wore
a shirt which he was unable to tear and, in his attempt, to
tear he choked me. I am unable to recall everything.
When I was on the bench in front of
the fire-place he said that I stole his life. That it was my fault
that he was unable to see
his child. That people treated him as a
criminal. He used to hurt me with sex when he accused me of
something. He had sex with
me. I said nothing.
He had mad eyes. He looked at me as if
he was going out of his mind. I fell off the bench. I saw my cellular
telephone and reached
for it but it fell. He pushed me against the
wood and hit my head against the cement slab. The slab was level with
my hips and
he pushed my head against the slab. He penetrated my anus
with his penis. I tried to get my phone.
It was very chaotic. I fell over the
chair onto the ground onto stiff wire. He dragged me to the table in
the lounge. I was on my
back on the table with my lower limbs hanging
off the table. He choked me. He tried again to have sex with me. He
wore denim that
hurt my legs. I held my legs together. I started to
panic. Something fell off the table and broke. I hoped that somebody
would
hear. I fell off the table and sat on the ground. He tied my
right foot to the right table’s right leg. There was a bundle
of wire on the table. He also tied my right hand with the wire. It
was strange inflexible wire. He struggled to tie me with it.
He tied
both my hands. One hand was tied to the top of the table and the
other to the side of the table. He stared into my face.
I looked
away. He said that he would hurt my little sister if I told anybody
what had happened. He said my parent’s wall
had holes in it and
that he could see through it. He threatened that he would hurt us if
I told anybody.
He left me tied to the table. He left.
He did not come with a motor vehicle. He must have walked to my
house. He could drive to
the house.
I waited a while so that he could go.
Then I called my son. He switched on the light. He gave me my
cellular telephone. I pressed
the cellular buttons with the hand on
the table. I was unable to get my hands together. I gave the phone to
L.
I called F F. L got onto the table to
lift the wire. He struggled. He managed to untie one hand and I was
then able to untie the
other. My son covered me with a blanket while
he struggled to untie the wire. He took a long time to untie me. When
I was freed,
L and I laid on the bed. I waited for my friend. At
approximately 06h45, my friend F arrived on the farm.
F took me to her house.’
Discussion
[82]
Counsel for the plaintiff submitted that the first defendant’s
‘A1 statement was a fabrication insofar as it identified
the
Plaintiff as her attacker, and, by logical inference, …laid
false charges …knowing that they were false, …would
cause…arrest and prosecution…Plaintiff would go to
prison’. That, so the submission went, satisfied the
requirements
for an action based on malicious proceedings and
defamation.
The
applicable legal principles
[83]
The plaintiff bears the onus to
prove on a balance of probabilities that
[1]
:
(a) one or all of the defendants
instituted the proceeding;
(b) in so doing, they acted without
reasonable and probable cause;
(c) acted with malice/
animo
injuriandi
; and that
(d) the prosecution failed.
[84]
The prosecution failed in that
it was withdrawn. It is common cause that the first defendant set the
proceedings in motion when
she laid criminal charges. It is in issue
whether she held ‘a genuine belief founded on reasonable
grounds in the plaintiff’s
guilt.
[2]
’
F’s evidence is important in that it clearly shows that the
first defendant did not intend to lay criminal charges
against
anyone. Neither was she blaming anyone for the attack. It was F who
probed and enquired whether the plaintiff had been
the perpetrator.
[85]
It is also apparent from the first defendant’s A1 statement and
the J88 that she was not sure about the time of the attack.
It must
have been after 20h00 as that is when L went to bed. The first
defendant woke up L after her attacker left and the call
to F
followed shortly thereafter. There is objective evidence that the
first defendant was tied to the table with stiff wire that
injured
her hands and was immobile until L rescued her. If the attack
occurred at 22h00 and lasted for approximately 30 minutes,
the first
defendant must then have waited several hours before calling L.
Although, the condition of her hands suggests that she
was tied for
some time, it cannot with any degree of accuracy be an indication of
the time of the attack. Laubscher said the following
about the injury
to first defendant’s hands:
‘…
Both writs were swollen
and bruised with neuropraxis to both hands. …[an] injury that
you sustain when blood constriction
is stopped or decreased in [an]
area, and you find that you get partial damage to the nervous
function of the hands. …
The hands were so badly squashed, that
the hands were numb and she couldn’t operate them properly
there was decreased power
and, …sensation in her hands [at the
time of the examination]. …my opinion is that she must have
been tied for quite
a while.’
[86]
The possibility of the plaintiff leaving the hotel room after he came
in at approximately midnight was not canvassed with T
nor was she
confronted with the possibility that the plaintiff was not the person
with her in the video footage, although, P testified
that T was with
a third party in the footage. I accept that the plaintiff was the
person with T depicted in the footage. This is
a civil matter; it
must follow that on a balance of probabilities, the plaintiff has
proved that he could not have been the attacker.
[87]
I have considered the first defendant’s condition when F and
Laubscher saw her after the attack. Both confirm that she
did not
want to lay criminal charges. Yet, she ensured that F warned her
family of the plaintiff’s threat against them. So
urgent was
the message that her family did not sleep at their home that night.
The probability of the first defendant deliberately
putting her
family through that trauma just to get at the plaintiff is not borne
out by the evidence. In fact, the evidence indicates
that the first
defendant was likely to avoid unpleasant encounters involving the
plaintiff. This is also borne out by the fact
that she did not
volunteer the identity of her attacker.
[88]
P2 saw the first defendant a day after her family spent the night
with friends due to the presumed threat. She described the
first
defendant as ‘unrecognisable, extremely swollen, pitch black
and blue all over’. Despite being rational and intelligent,
P2
had no hesitation in admitting that she still believed the plaintiff
had been responsible for the attack on the first defendant.
[89]
Mr Potgieter submitted that ‘it is simply not possible that
[first defendant] could be assaulted, abused and spoken to
by another
man for half an hour…and be under the honest impression that
it was her ex-husband’. That submission is
premised on the
5-year marriage that preceded these events. However, the plaintiff’s
counsel rejected that same reasoning
when suggesting that Boer and
Maziza were better placed to identify the plaintiff from the video
footage as they had seen him shortly
before the identification.
[90]
The circumstances under which the identification was made are
important. It was at night, the fire was out, and the first defendant
was surprised by her attacker who wore a cap. She suffered a
horrendous ordeal. L switched the light on when he came into the
room. Therefore, I assume, without finding, that the lighting was
poor at the time of the attack. It is apparent from P2’s
evidence that the first defendant’s family associates the
plaintiff with all or most of the first defendant’s calamities.
F did too. It is apparent from the evidence that the first defendant
does too. I also consider that when he testified, P was still
convinced that the plaintiff was not depicted on the video footage.
Clearly, the first defendant is not the only one, despite the
evidence to the contrary, who believes that the plaintiff was the
perpetrator of the attack on her.
[91]
I accept that when she laid the
charges, the first defendant believed that the plaintiff was her
attacker. In the circumstances
of this matter, that belief was
reasonable. The plaintiff has to prove that the first defendant acted
without ‘reasonable
and probable cause
[3]
.
He did not.
[92]
In the circumstances of this
matter, I am unable to find that the first defendant acted with
malice/
animo injuriandi,
which Swain JA
[4]
described as:
‘
[35] …The defendant must
thus not only have been aware of what he or she was doing in
instituting or initiating the prosecution,
but must at least have
foreseen the possibility that he or she was acting wrongfully, but
nevertheless continued to act, reckless
as to the consequences of his
or her conduct (dolus eventualis). Negligence on the part of the
defendant (or, I would say, even
gross negligence) will not suffice.’
[93]
The evidence simply does not establish that the first defendant
subjectively foresaw the possibility that the plaintiff was
not the
perpetrator of the assault. Quite the opposite. Laubscher’s
evidence bears repeating:
‘
Question by counsel for the
second and third defendant:
…
It seems that she also told
you that it’s her ex-husband…
Answer: I had to extract it from her,
ja…She did not come forth.
…
Ja , she clearly did not
actually want to open a case. …because she felt that, you know
there would be no evidence.
She said the perpetrator was very
meticulous and would not leave any traces….
…
She told me in no unclear
terms that she did not want to open a case.…
And she was scared of the person.’
[94]
Laubscher further explained
that it was difficult to get a history from the first defendant
because she was ‘
very,
for loss of the English word bot
’.
The Afrikaans word ‘bot’ translates
[5]
as ‘blunt, dull, stupid, obtuse, imperceptive, slow-witted,
slow on(in) the uptake, spiritless’. I am persuaded that
the
plaintiff has failed to prove malice/
animo
injuriandi.
In reaching
that conclusion, I have considered that the first defendant did not
testify; however, the objective independent evidence
belies the
presence of malice. It follows that a claim based on defamation can
also not succeed
[6]
.
The
case against second and third defendants
[95]
It was submitted that the magistrate would have released the
plaintiff on bail at his first appearance if Boer had told the
prosecutor that he had confirmed the plaintiff’s alibi through
the video footage, hotel receipts and ‘there [were]
no
objective or independent evidence linking’ the plaintiff to the
incident. The submission went further that Boer should
have informed
the prosecutor that he had the plaintiff’s passport and
therefore he was not a flight risk; there were no indications
that
the plaintiff would interfere with the investigation and he should
have been released on bail with suitable conditions.
[96]
The plaintiff’s counsel
relied on the Zealand
[7]
judgment for the submission that ‘Once the fact of the arrest
and/or detention is pleaded and proved, the defendant(s) must
justify
the breach. If they cannot do that, the unjustified breach …is
sufficient
to establish
unlawfulness for the purposes of (a) delictual action of unlawful or
wrongful detention.’
[97]
Counsel further submitted, that the plaintiff’s claim against
the second and third defendants was: ‘…not
for malicious
legal proceedings but for unlawful arrest, detention and
prosecution.’ Mr Salie SC, who appeared with
Mr Magardie
for the second and the third defendants, conceded that the second
defendant ‘bore the burden of justifying the
plaintiff’s
deprivation of liberty’.
[98]
As indicated above, Boer consulted with the first defendant, who said
that the plaintiff was her attacker – she was seriously
injured. The crime scene depicted a house breaking and a struggle. I
have rejected the suggestion that there were indications that
the
housebreaking was staged. Boer also received the first defendant’s
A1 statement in which the detail of the identification,
without more,
left no doubt as to the identity of the attacker. He also had
Laubscher’s medical report confirming the attack
and the
alleged identity of the attacker. The discrepancy about the time of
the attack would ordinarily be part of the investigation.
In the
circumstances of this matter, it was more urgent once the plaintiff
had disclosed his alibi. However, that does not detract
from the
objective evidence which should be considered when evaluating whether
Boer had just cause to arrest the plaintiff.
[99]
One must bear in mind that the alleged attacker was the complainant’s
ex-husband. The first defendant told Boer that
her attacker had told
her that it was her fault that he could not see his child. The detail
was intimate; the parties were divorced
with one minor child. The
same detail was contained in the affidavit that another police
officer took from the first defendant.
In those circumstances,
without more, Boer was entitled to accept the first defendant’s
identification of her ex-husband
as the attacker. The threat against
the first defendant’s parents and the detail of their home also
suggested familiarity.
[100]
Boer conceded that when
approached, the plaintiff was at home, calm and denied the
allegations against him. Boer arrested him and
took him to the police
station. The plaintiff called Sauls and once he was present, Boer
read the plaintiff his rights again and
detained him. There can be
little doubt that Boer had just cause to arrest the plaintiff at the
time. It was in that process that
the plaintiff provided the receipts
evidencing his stay at the hotel. Boer telephonically confirmed that
the plaintiff had been
at the hotel the previous night. Boer is
criticised for detaining the plaintiff despite the confirmation. The
evidence indicates
that Boer was prepared to follow up the
plaintiff’s alibi. He did not consider that the case against
the plaintiff was doomed
to failure
[8]
.
In the circumstances of this matter, that was a reasonable approach.
[101]
It must be so, because Boer considered that the plaintiff had been
charged with an offence in terms of schedule 6 of the Criminal
Procedure Act 51 of 1977 (
the CPA
). Therefore, Boer considered
that the plaintiff had to appear in court for it to consider his
release or further detention. Section
60(11) (a) of the CPA provides:
‘
Notwithstanding any provision
of this Act, where an accused is charged with an offence referred to
–
(a)
in Schedule 6, the court
shall order that the accused be detained in custody until he or she
is dealt with in accordance with the
law, unless the accused, having
been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that exceptional
circumstances exist which in the
interests of justice permit his or her release.’
(See also
[9]
.)
[102]
It follows that the plaintiff’s
arrest was not unlawful/without just cause, as submitted. The matter
was postponed for 7 days
from the first appearance for further
investigation. I have no problem that the plaintiff’s counsel
took issue with that
postponement. There are indications that the
third defendant assumed simply because the section provides for the
7-day postponement
that it is entitled to it. This is incorrect. A
postponement is not there for the asking. To the extent that there
exists a practice
to misapply the section, the presiding officers
should be astute enough not to mechanically apply the section. Every
postponement
should be properly motivated; this is especially so when
an accused person is kept in custody
[10]
.
[103]
Instead of a routine postponement, it appears the parties had
very specific reasons for the adjournment. Sauls represented
the
plaintiff at his first appearance on 20 September 2012. The matter
was postponed for further investigation. Sauls did not object
or
inform the court of the plaintiff’s alibi. He was silent
although he knew about the hotel receipt and the video footage
that
Boer and Maziza had seen. On 27 September 2012, at the plaintiff’s
second appearance Mr Harmse, the plaintiff’s
new legal
representative, told the court:
‘…
my instructions [are]
that one of the reasons for the seven days [postponement] is for the
state to provide the accused with sufficient
information to
reasonably be placed…in position…to bring a bail
application.’
[104]
In this trial, Boer explained the further investigation as: obtaining
statements from F, L and P and allowing the first defendant
an
opportunity to view the video footage, which she did the day before
the bail application. The prosecutor, Mr Hendricks, did
not testify.
Unlawful
prosecution
[105]
After his first court
appearance, the plaintiff’s detention was at the behest of the
court and lawful
[11]
.
It is common cause that the plaintiff, ‘having been given a
reasonable opportunity to adduce evidence which satisfied the
court
that exceptional circumstances existed which in the interest of
justice permit [his release]’, was released on bail.
[106]
Although the bail application was successful, the plaintiff remained
in custody from 27 September to 2 October 2012. I accept
that in
appropriate circumstances, the defendants’ actions or inaction
might attract liability for that detention. I consider
whether they
opposed bail in circumstances where they should not have or failed to
place ‘all available facts before the
court hearing the bail
application’.
[107]
Boer testified at the bail hearing as follows: (own translation from
the Afrikaans)
‘
The matter involves 2 counts of
rape and housebreaking as well as a violation of a protection order.
He confirmed that the plaintiff
was unemployed and had no previous
convictions. He was an Italian citizen but the police already had his
passport. He still considered
the plaintiff a flight risk. The
offences were serious and the first defendant feared for her life and
that of L. The first defendant
“pertinently” said that
she was afraid of the plaintiff. According to the first defendant,
the plaintiff was on the
farm in breach of a domestic violence
interdict. There is a history of applying for interdicts against each
other between the plaintiff
and the first defendant. One such was an
application alleging assault that was withdrawn.
He then explained the alleged offence,
almost verbatim as per the first defendant’s A1. He said the
first defendant sat bound
to the table for a while before calling L
to free her. But she does not mention specific times because there
was no watch
available. L saw her naked and tied to the table.
He related F and P’s
involvement as indicated above. He described the crime scene as
indicated above and confirmed that the
wire around the table was a
firm type.
He said that rape was a prevalent
offence in the area and that his unit had 165 pending matters at that
stage. He said the first
defendant was extremely traumatised, cried,
injured and that he could see that her body was sore.
In cross examination he said that he
had seen the video footage and was satisfied that the plaintiff was
depicted on it.’
[108]
At the first appearance, the plaintiff was legally represented;
Sauls did not object to the postponement. One would
have expected,
with his knowledge of the alibi, that he would have brought that to
the court’s attention and objected to
the request. Instead the
matter was postponed by agreement.
[109]
In these proceedings, the prosecutor said that he opposed bail
because of the seriousness of the offence. There can be no
doubt that
the offence was serious. The first defendant was in a potentially
life-threatening situation during and after the attack.
She was left
on a farm naked and tied to a table with a sleeping minor child. The
submission that there were no indications that
the plaintiff would
interfere with the investigation or the witnesses is not borne out by
the facts available at the time. Boer
testified that the plaintiff
was in breach of a protection order that prohibited him from entering
the farm. At that stage, the
first defendant persisted with the
allegation that the plaintiff was her attacker and that he was not
the person depicted on the
video. It is correct that the identical
affidavits from P and the first defendant should have moved the
prosecutor to disclose
the fact to the magistrate. Instead, he
thought it should be dealt with at the trial.
[110]
With the benefit of hindsight,
the decision to oppose bail is criticised. The decision must be
viewed in light of the constitutional
guarantee of the right to
freedom, security of person and the right not to be deprived of
freedom arbitrarily or without just cause
[12]
.
The defendants had an obligation to protect these rights in respect
of the plaintiff and the first defendant. In the circumstances
of
this matter, I am not persuaded that the second or third defendants’
representatives, Boer and Bruinders, violated their
obligations to
protect the plaintiff’s rights. There was an attempt to soften
the blow; he was therefore detained at a smaller
facility instead of
the bigger prison. One has to consider that the injury to the first
defendant’s hands suggested that
she had been tied up ‘for
quite some time’ and it was difficult to get a version from
her. Laubscher described her
as ‘bot’. It follows that
the time of the attack could only be ascertained through a further
consultation. It
follows that the unlawful arrest, detention
and prosecution claim must fail.
[111]
I, for the reasons stated above, make the following order. Costs
stand over for later determination.
(a) The plaintiff’s claim
against the defendants is dismissed.
_____________________________
BAARTMAN
J
[1]
Nel v Baloyi 2005 JDR 804 (T) at para 20 ;
Relyant
Trading (Pty) Ltd v Shongwe
2007 (1) All SA 375
(SCA) at para 5.
[2]
Beckenstrater v Rottcher
and Theunissen
1955 (1) SA
129
(A) at 136 A–B.
[3]
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, …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, of
reasonable and probable cause’. See also:
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2006] ZASCA 162
;
[2007] 1 All SA 375
(SCA) at para 14.
[4]
Woji v Minister of Police
2015 (1) SACR 409 (SCA).
[5]
Bilingual Dictionary: Bosman, Van der Merwe, Hiemstra: Eighth,
revised and enlarged edition: P.A Joubert and JJ Spies at page
80.
[6]
The Law of South Africa, Second Edition, Volume 7 at 231 para 235:
‘
Animus iniuriandi
is the description, for the purposes of the law of defamation, of
the concept of intent or
dolus
.
In the present context,
dolus
means the intention to defame the plaintiff with knowledge that such
conduct is unlawful. It includes the state of mind attributed
to a
person who publishes a defamatory statement recklessly, not heeding
whether it may defame another, in other words,
animus
iniuriandi
includes
dolus
eventualis
.’
Footnotes omitted.
[7]
Zealand v Minister of
Justice and Constitutional Development
and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) paras 24–25.
[8]
Duncan v Minister of Law
and Order
1986 (2) SA 805
(A) at 821B–C
[9]
Minister of Police and
another v Zweni
(842/2017)
[2018] ZASCA 97
(1 June 2018).
[10]
De Klerk v Minister
of Police
(329/17)
[2018]
ZASCA 45
(28 March 2018) at 47; ‘…True, in terms of
s60(1) (c) of the [CPA] it was the duty of the magistrate, if the
question
was not raised by the appellant or the prosecutor, to
ascertain from the appellant whether he wished the court to consider
his
release on bail….’
[11]
Zweni judgment at para 10 and
Minister
of Safety and Security & Another v Marius Schuster & Another
(114/2018)
[2018] ZASCA 112
(13 September 2018) at para 14.
[12]
See De Klerk referred to above.