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[2018] ZAWCHC 166
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Dlaza v Minister of Police and Another (4697/2016) [2018] ZAWCHC 166 (30 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 4697/2016
In
the matter between:
KHANDIKHAYA
AMOS
DLAZA Plaintiff
and
MINISTER
OF
POLICE First
defendant
DIRECTOR
OF PUBLIC
PROSECUTIONS Second
defendant
Date
of hearing: 4 -6 September 2018; 13-15 November 2018
Date
of judgment: 30 November 2018
JUDGMENT
SAVAGE
J
:
Introduction
[1]
The
plaintiff, Mr Khandikhaya Amos Dlaza, instituted a claim in delict
for damages against the Minister of Police, as first defendant,
and
the Director of Public Prosecutions, as second defendant, arising
from his alleged unlawful arrest, detention and malicious
prosecution. The trial proceeded on the merits only, merits and
quantum having been separated for adjudication in terms of Rule
33(4)
of the Uniform Rules of Court.
[2]
The
undisputed facts are that the plaintiff was arrested on 19 October
2013 by Constable Dumisani Ndzabela, a member of the South
African
Police Service (SAPS), without a warrant, for the alleged rape and
assault of a minor male child, with whom he lived together
with a
number of other members of his family, in Site B, Khayelitsha. The
arrest followed a complaint of rape and assault having
been made
against the plaintiff and his mother, Ms Anna Dlaza, to the
Khayelitsha police by a neighbour. After the child had been
removed
from the home, Constable Ndzabela was told by the investigating
officer to meet the complainant at the house where she
would point
the plaintiff out for him to be arrested. After the plaintiff was
pointed out by the complainant and identified by
her as the person
against whom she had laid a charge of the rape and assault of a child
with the police, the plaintiff was arrested
by Constable Ndzabela and
thereafter detained at the Khayelitsha police cells until his first
court appearance on 21 October 2013.
He was refused bail and remained
in custody until his release on 12 June 2015.
[3]
On
19 September 2015 the charges against the plaintiff were withdrawn
after the prosecutor determined that, despite counselling
received,
the child remained unable to testify in the matter and that he would
be exposed to secondary trauma if he was required
to do so.
Pleadings
[4]
The
plaintiff’s pleaded case was that after his first court
appearance, his matter was remanded for seven days when he brought
a
bail application which was denied “
at
the special instance and request of the first defendant
”
.
The particulars of claim continued:
‘
9.
Once bail was denied, Plaintiff was then taken to Pollsmoor Prison
where he remained in further detention until his release on
12 June
2015.
10.
The members of the Second Defendant whilst fully presented with facts
and allegations leading to Plaintiff’s arrest and
detention and
exercising their discretion and on recommendations of the members of
the First Defendant, decided to prosecute the
Plaintiff.
11.
After a period of more than 1 year 9 months in Pollsmoor Prison,
Plaintiff was released on 12 June 2015 and the charges against
Plaintiff were withdrawn due to lack of evidence.
12.
Plaintiff was wrongfully and unlawfully detained in custody at
Pollsmoor Prison and deprived of his liberty for a period of
1 year 9
months at the instance of the said members of the First Defendant and
the Second Defendant whose full and further particulars
are to the
Plaintiff unknown.
13.
There was no reasonable and/or probable cause in law justifying
Plaintiff’s arrest, detention and malicious prosecution,
accordingly his arrest and detention was wrongful and unlawful.
14.
When the members of the Second Defendant decided to prosecute
Plaintiff, there was no reasonable or probable cause for prosecution,
accordingly his prosecution was malicious for the following reasons:
14.1
The proceedings were instigated;
14.2
Without reasonable and probable cause;
14.3
By member of the Second Defendant who acted with animo injuriandi;
and
14.4
The prosecution failed.
15.
At all relevant times hereto the members of the First and Second
Defendants were acting within the course and scope of their
employment and/or furthering the interest of their employees thereby
rendering the First and Second Defendants vicariously liable
for
their members’ wrongful and unlawful conduct.
16.
As a direct result of the First and Second Defendants and/or their
members’ actions Plaintiff suffered damages in the
amount of R2
000 000,00 (two million rand) being damages for unlawful and wrongful
arrest and detention, deprivation of liberty,
discomfort, shock,
malicious prosecution, loss of dignity and
contumelia
.
17.
In the premises, the First and Second Defendants are jointly and
severally liable to compensate the Plaintiff for damages suffered,
the one paying the other to be absolved.
’
[5]
The
defendants denied the claims of unlawful arrest, detention and
malicious prosecution. It was pleaded that the plaintiff had
been
lawfully arrested and detained by Constable Ndzabela, a police
officer acting in the course and scope of his duties as a member
of
the first defendant on charges of rape and assault in accordance with
the provisions of s 40(1)(b) read with s 40(1)(q) of the
Criminal
Procedure Act 51 of 1977 (‘CPA’) and that reasonable
grounds existed for the arrest of the plaintiff.
[6]
Section
40(1)(b) and (q) state that:
(1)
A
peace officer may without warrant arrest any person-
…
(b)
whom he reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping
from
lawful custody; …
(q)
who is reasonably suspected of having committed an act of domestic
violence as contemplated in
section 1
of the
Domestic Violence Act,
1998
, which constitutes an offence in respect of which violence is an
element.
[7]
Section
1
of the
Domestic Violence Act
116
of
1998
defines “domestic violence” to mean
(a)
physical
abuse;
(b)
sexual abuse; …
where
such conduct harms, or may cause imminent harm to, the safety, health
or wellbeing of the complainant.
[8]
The
defendants pleaded that the plaintiff was, following his arrest,
lawfully detained until his first court appearance on 21 October
2013, in terms of
s 50(1)
of the CPA, with his bail application seven
days later refused by the Magistrate’s Court.
[9]
The
plea continued that members of the second defendant decided to
prosecute the plaintiff based on the available facts at the time,
with it denied that the first defendant had recommended that the
second defendant prosecute the plaintiff. The allegations of rape
and
assault were investigated, with it revealed that the minor child
lived with his grandmother and the plaintiff in Site B, Khayelitsha.
The minor child was assessed and medically examined and found to be
traumatised, with injuries consistent with the allegations
and
complaint. It was denied that the charges against the plaintiff were
withdrawn on 18 September 2015 due to a lack of evidence.
Rather, it
was pleaded that the minor child was found, after assessment, to be
in need of further psychological counselling and
was not able to
testify in court against the plaintiff. It was therefore denied that
there was no reasonable or probable cause
for prosecution or that the
prosecution was malicious.
[10]
Admitting
that the members of the defendants acted at all relevant times in the
course and scope of their employment, it was denied
that they had
acted unlawfully, wrongfully or maliciously against the plaintiff or
that they were liable to compensate the plaintiff
for damages
suffered, all of which were denied. Since the plaintiff was legally
represented at all relevant times it was pleaded
that he “could
and should have mitigated his damages” by
inter
alia
appealing the judgment of the Magistrate’s Court to refuse
bail; bringing a further bail application for his release pending
the
finalisation of criminal charges against him; and/or applying for the
matter to be struck from the roll in terms of
s 343A(3)(c)
of the
CPA.
[11]
In
the pre-trial minute signed by the parties prior to the commencement
of the trial it was agreed that having admitted the plaintiff’s
arrest and detention, the defendants bear the onus to establish that
such arrest and detention was lawful. The plaintiff, it was
agreed,
was to bear the onus of proof in relation to the malicious
prosecution claim.
[12]
An
attempt was made by the parties to both clarify and narrow the areas
of dispute between them in a joint minute signed during
the course of
the trial. This document recorded that the matter would proceed on
the basis that it was agreed that:
‘
1.
The Plaintiff’s allegation that he wrongfully and unlawfully
arrested and detained in based solely on the contention that
the
Plaintiff was arrested without a warrant.
2.
The Plaintiff’s claim for damages arising out of his alleged
wrongful and unlawful arrest on 19 October 2013 and detention
until
his first appearance in court on 21 October 2013 is confined to the
first defendant.
3.
The Plaintiff’s allegations that he was unlawfully detained
from the date of his first appearance in court on 21 October
2013 to
the date of his release and malicious prosecution are based solely on
the contentions that:
3.1
The Second Defendant upon studying the docket upon the initial
receipt thereof from the investigating officer should have realised
that the State had a weak case against the Plaintiff;
3.2
The First Defendant should consequently not have opposed the granting
of bail;
3.3
The Second Defendant should consequently have withdrawn all the
charges against the Plaintiff and facilitated his release from
custody;
3.4
The Second Defendant failed to properly apply its mind to the
contents of the police docket relevant to the Plaintiff’s
criminal case and in so doing failed to properly exercise its
discretion.
4.
The Plaintiff bears the onus as well as the evidentiary burden of
proving that the prosecution against him was malicious
…
.’.
Unlawful
arrest claim
[13]
It
is trite that an arrest is
prima
facie
wrongful and unlawful and that it is for the first defendant to prove
it lawful. In
Minister
of Safety & Security v Sekhoto (Sekhoto),
[1]
with reference to
Duncan
v Minister of Law and Order (Duncan),
[2]
it was stated that:
‘…
the
jurisdictional facts for a s 40(1)(b) defence are
that (i) the arrestor must be a peace officer; (ii) the arrestor
must
entertain a suspicion; (iii) the suspicion must be that the suspect
(the arrestee) committed an offence referred to in Schedule
1; and
(iv) the suspicion must rest on reasonable grounds.’
[14]
Once
the required jurisdictional facts for an arrest are present the
discretion then arises whether or not to arrest the suspect. That
discretion must be properly exercised
within
the bounds of rationality
,
with
the grounds on which it can be questioned being narrowly
circumscribed.
[3]
As
stated in
Sekhoto
:
‘
(t)he
standard is not breached because an officer exercises the discretion
in a manner other than that deemed optimal by the court.
A number of
choices may be open to him, all of which may fall within the range of
rationality. The standard is not perfection or
even the optimum,
judged from the vantage of hindsight — so long as the
discretion is exercised within this range, the standard
is not
breached.’
[4]
[15]
The
first defendant’s case is that the arrest of the plaintiff was
lawful in terms of s 40(1)(b) read with s 40(1)(q) of the
CPA in that
the arresting officer was a peace officer and that he entertained a
reasonable suspicion that the plaintiff had committed
rape, which is
both a Schedule 1 offence and is an offence which falls within the
ambit of s 40(1)(q).
[16]
Although
the parties had apparently sought to narrow the dispute pertaining to
the unlawful arrest claim in the joint minute to
that the plaintiff’s
arrest had been affected without a warrant, from the approach taken
in evidence and argument it is apparent
that the plaintiff disputed
that Constable Ndzabela as the arresting officer held a suspicion on
reasonable grounds that
a Schedule 1 offence or incident of
domestic violence had been committed by the plaintiff, with it
disputed that he had exercised
his discretion to determine whether he
should arrest the plaintiff or not.
[17]
The
reasonableness of the suspicion of any arresting officer must be
approached objectively, with the question being whether a reasonable
person, confronted with the same set of facts, would form a suspicion
that a person has committed a schedule 1 offence
.
[5]
In
Mvu
v Minister of Safety and Security
[6]
it was stated:
‘
The
fourth requirement, i.e. that the suspicion must rest on reasonable
grounds, is objectively justiciable: '. . . the test is
not whether a
policeman believes that he has reason to suspect, but whether,
on an objective approach, he in fact has reasonable
grounds for his
suspicion'.
[7]
[18]
In
Mabona
v Minister of Law & Order
[8]
the Court noted that:
‘
The reasonable man will
therefore analyse and assess the quality of the information at his
disposal critically, and he will not
accept it lightly or without
checking it where it can be checked. It is only after an examination
of this kind that he will allow
himself to entertain a suspicion
which will justify an arrest. This is not to say that the information
at his disposal must be
of sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The
section requires
suspicion but not certainty. However, the suspicion
must be based upon solid grounds. Otherwise, it will be flighty or
arbitrary,
and not a reasonable suspicion.’
[19]
In
argument it was submitted for the plaintiff that the investigating
officer could not delegate the statutory obligation created
for the
arresting officer in terms of s 40(1)(b). While it is the person
undertaking the arrest who must harbour the reasonable
suspicion,
[9]
with reference to
Minister
of Justice v Ndala
[10]
there has historically been some judicial support for the view that a
peace officer who orders a subordinate to effect an arrest
is
actually the person who takes the arrestee into custody, although the
subordinate is the person who physically complies with
the
requirements of the arrest. In
Bhika
v Minister of Justice & Another
[11]
,
with reference to
Ndala
(supra)
and
Birch
v Johannesburg City Council,
[12]
where
a subordinate undertook an arrest on the instructions of his senior,
the act of arrest was found to be that of the senior.
[20]
However,
in
Ralekwa
v Minister of Safety and Security (Ralekwa)
[13]
the power to arrest was considered against the backdrop of the
Constitution with it found that s 40 provides no protection
to a
police officer who did not form his own suspicion but relied on the
opinion of somebody else.
[14]
It appears to me that the approach in
Ralekwa
is not only constitutionally compliant but accords with the wording
of section 40(1)(b) that a peace officer may arrest any person
“
whom
he reasonably suspects of having committed
”
a Schedule 1 offence. This is so in that the use of the word “
he
”
is clearly, on a plain reading of the provision, a reference to the
peace officer who is arresting the suspect. The result
is, it seems
to me, that the statute requires that for purposes of s 40(1)(b) it
is the arresting officer who must hold the reasonable
suspicion.
[21]
There
is a clear distinction in the wording of s 40(1)(b) and s 40(1)(q) in
that the latter provision states that a peace officer
may arrest any
person “
who
is reasonably suspected of having committed an act of domestic
violence
”.
Since the sub-section does not expressly state, in the manner
of s 40(1)(b), that it is the arresting officer who
is to hold the
reasonable suspicion, I accept that s 40(1)(q) may notionally be
capable of an interpretation that if someone other
than the arresting
officer, such as the investigating officer for example, has
sufficient information before him or her to allow
such reasonable
suspicion to be formed, a subordinate may arrest the suspect on his
or her behalf. However, leave rational action
by state functionaries
and leave against the arbitrary application of the law, an
interpretation of s 40(1) which is more consonant
with the
Constitution in my mind is one which requires an arresting officer,
whether acting in terms of sub-section (b) or (q),
to him or herself
hold a reasonable suspicion that an offence of the nature
contemplated in either sub-section has been committed
to warrant the
arrest of the suspect. In such circumstances, the view I take is
that, whether in terms of s 40(1)(b) or (q), it
is for the first
defendant to prove that the arresting officer held a reasonable
suspicion sufficient to justify the lawful arrest
of the plaintiff
without a warrant.
[22]
The
test to determine whether the suspicion held by the arresting officer
is reasonable is an objective one
[15]
and a suspicion might be reasonable even if there is insufficient
evidence for a
prima
facie
case against the arrestee.
[16]
The facts show that the complainant identified and pointed the
plaintiff out to Constable Ndzabela as the suspect against
whom she
had laid a charge of the rape of a minor child, and assault. She
provided the case number for her report of this complaint
to the
police, which accorded with the case number provided by the
investigating officer. She informed Constable Ndzabela of the
circumstances surrounding her report of the matter to the police,
that she had noticed the child walking strangely and the fact
that
the minor child had identified the perpetrator to be the plaintiff,
with whom he lived. Constable Ndzabela had been informed
by the
investigating officer that the complaint had been made by the
complainant, that he was investigating the matter and had
formed the
view that the plaintiff should be arrested. The plaintiff did not
dispute that he had been identified by the complainant
as the suspect
in the rape case reported and confirmed that he was aware of the
nature of complaint made against him and it was
not in dispute that
the investigating officer, who had attended at the plaintiff’s
house previously to remove the minor child,
had requested Constable
Ndzabela to arrest the plaintiff.
[23]
From
his evidence it is apparent that Constable Ndzabela, had regard to
the nature and quality of the information at his disposal,
including
the seriousness of the Schedule 1 crime of rape of a minor child
which the plaintiff was alleged to have been committed.
His evidence
was that he was satisfied that the complainant was a sober-minded
person who had, having engaged with the child, reported
the matter to
the police. She was able to identify and point out the plaintiff as
the suspect, who did not dispute that he had
been accused of the rape
of the child by the complainant.
[24]
It
was argued for the plaintiff that the fact that the arresting officer
had not had sight of the docket had the result that he
could not have
formed a reasonable suspicion against the plaintiff. Furthermore, had
the police sat down and let the plaintiff’s
mother explain, in
the manner she stated in her evidence she had asked of the police,
the explanation which would have been given
would have “possibly
influenced the arresting officer’s decision”.
[25]
I
am satisfied on the facts of this matter that the arresting officer
obtained the relevant information from the investigating officer,
the
complainant and the plaintiff, that he was able to assess the quality
of the information he had obtained and, with it determined
by him
that the complainant was of sober mind, he entertained a suspicion
that the plaintiff had committed a serious Schedule 1
crime which
warranted his arrest. This was not an arbitrary or flighty suspicion
arrived at without due regard to the information
at his disposal but
that viewed objectively the suspicion arrived at was reasonable. From
the information before him the arresting
officer was able to consider
facts placed before him which provided solid grounds for a suspicion
that the plaintiff had committed
the offence of which he was accused.
There was no obligation on the part of the arresting officer to sit
down to be provided with
an explanation favourable to the plaintiff
when he had before him a complainant who had pointed out the suspect
as the person who
was alleged to have committed a serious violent
crime of a sexual nature against a minor child. From the information
before him
he was able to determine that reasonable grounds existed
to arrest the plaintiff.
[26]
It
is trite that the
purpose
of arrest is to bring a suspect to court for trial within the
parameters of the Constitution and the applicable criminal
law
.
In exercising his discretion to arrest the plaintiff, the arresting
officer had a number of choices may be open to him. His election
to
arrest the plaintiff, inform him of the reason for his arrest and
take him to the police station for the matter to be processed
further
there cannot be faulted. It was a decision which fell within the
range of reasonable decisions available to him having
regard to the
seriousness of the crime alleged, the interests of society and the
identification of the plaintiff by the complainant.
In exercising his
discretion in the manner he did, I am satisfied that the arresting
officer acted rationally and lawfully.
[27]
It
follows for all of these reasons that the first defendant has
successfully proved that the arrest of the plaintiff without a
warrant was lawful and the plaintiff’s claim of unlawful arrest
against the first defendant cannot succeed.
Unlawful
detention
[28]
The
plaintiff’s claim in relation to his unlawful detention for the
period from 19 October 2013 until his first appearance
in court on 21
October 2013 is one against only the first defendant.
[29]
As
a rule, every interference with physical liberty is wrongful in the
absence of a ground of justification. The wrongful deprivation
of
liberty as a form of
iniuria
consists in a person being deprived of physical freedom without
justification. The deprivation of liberty is to be determined
objectively with it for the plaintiff to prove that the defendant, or
a person acting on his or her behalf, was responsible for
it. In
S
v Dlamini; S v Dladla & others; S v Joubert; S v Schietekat
[17]
it was stated that –
‘
Section
35(1)(f) in its context, makes three things plain. The first is that
the Constitution expressly acknowledges and sanctions
that people may
be arrested for allegedly having committed offences and may for that
reason be detained in custody. The Constitution
itself therefore
places a limitation on the liberty interest protected by s 12. The
second is that notwithstanding a lawful arrest,
the person concerned
has a right, but a circumscribed one, to be released from custody
subject to reasonable conditions. The third
basic proposition flows
from the second, and really sets the normative pattern for the law of
bail. It is that the criterion for
release is whether the interests
of justice permit it.
’
[30]
Following
his arrest, the plaintiff was detained until his first appearance in
Court, which occurred within the period prescribed
in s 35(1)(d) of
the Constitution. Since his arrest was lawful and the period of his
detention until his first appearance in court
was constitutionally
compliant, the first defendant successfully proved that the
plaintiff’s detention for such period was
lawful. No
claim against the first defendant can consequently succeed in respect
of this period of detention.
[31]
The
plaintiff claimed that he was unlawfully detained from 21 October
2013 to the date of his release and that his application for
bail was
denied “at the special instance and request of the first
defendant
”
.
In the joint minute filed the plaintiff’s case was recorded to
be that the first defendant should not have opposed the granting
of
bail and the second defendant failed to determine that the State had
a weak case against the plaintiff and thereafter release
him from
custody.
[32]
As
made clear in
Sekhoto
,
it is
the
court that holds the discretion to order the release or further
detention of an arrested person. This requires a judicial evaluation
to determine whether it is in the interests of justice to grant bail
or not. The a
rresting
officer is not called upon to determine whether the suspect ought to
be detained pending a trial since this is the function
of the court,
although he may provide evidence to the court with regards to whether
there are facts which support the granting
of bail or not.
[33]
No
evidence was placed before this Court to support the plaintiff’s
contention that the plaintiff was detained from 21 October
2013 at
the instance of the first defendant. It was the court which
determined on 21 October 2013 until his release in June 2015
that the
plaintiff should be held further in custody.
[34]
From
the judgment of the Magistrate’s Court in the plaintiff’s
bail application dated 10 March 2014 it is also not evident
that the
members of the first defendant opposed the release of the plaintiff
on bail, although concerns about the plaintiff’s
safety if
released given that the attitude of the community was reflected in a
petition handed up by the investigating officer
in which the release
of the plaintiff was strongly opposed.
[35]
The
court had regard to the interest of justice in the matter having
regard to the provisions of s 60(4) of the CPA. It noted that
the
evidence available regarding the rape charge, included that “there
are clear signs of anal sexual penetration of the
child” with
forensic evidence indicating that male DNA was found on the specimens
collected from the child by the doctor.
Given “the strength of
the State’s case”, with “nothing to suggest that
the State has a weak case”,
together with factors such as the
interests of justice, the absence of exceptional circumstances and
the likelihood that his release
from custody would disturb the public
order and undermine public peace and security, bail was refused.
[36]
It
follows that the first defendant has discharged the onus to prove
that the plaintiff was lawfully detained at the instance of
and on
the order of the court for the period from 21 October 2013 until his
release. The plaintiff’s claim that he was unlawfully
detained
at the instance of the first defendant for such period cannot
therefore succeed when it was the court which took the decision
to
order the further detention of the plaintiff and not the first
defendant. The plaintiff’s claim of unlawful detention
against the first defendant for this period must therefore fail.
[37]
The
plaintiff’s claim of unlawful detention for the same period
against the second defendant is based on the contention that
the
second defendant failed to apply its mind properly to the contents of
the police docket in that it should have realised that
the State had
a weak case against the plaintiff on studying the docket when it was
received initially from the investigating officer;
and that the
second defendant should have exercised its discretion properly to
withdraw all the charges against the plaintiff to
facilitate his
release from custody. For the same reasons as the claim of unlawful
detention against the first defendant for the
period from 21 October
2013 fails, the claim against the second defendant also must fail.
The court ordered the continued detention
of the plaintiff for this
period. When bail was refused in 2014, the court found there to be
nothing to suggest that the State’s
case was weak.
[38]
The
second defendant put up evidence of the docket which served before
the prosecutor from which it was apparent that on 19 October
2013
statements were collected from the complainant and the minor child in
which the plaintiff was identified as the alleged perpetrator
of the
rape. In addition, the J88 completed by the medical doctor recorded a
finding of anal sensitivity on examination of the
child.
[39]
I
am satisfied that having regard to the material before me that the
second defendant cannot be criticised for having regard to
material
contained in the docket, or for its decision not to withdraw the
charge against the plaintiff until September 2015.
The further
detention of the plaintiff as ordered by the court remained an order
of the court and the detention for this period
was consequently
lawful. The plaintiff was at liberty to pursue the steps available to
him, which included to appeal any order,
pursue a further bail
application or make representations that the charges be withdrawn.
The failure to do so did not impact on
the lawfulness of his
detention which was by order of the court. In these circumstances I
am satisfied that the defendants have
discharged the onus to prove
that the detention of the plaintiff was lawful. It follows that the
plaintiff’s claim against
the first and second defendants
relating to his detention from 21 October 2013 until his release
cannot succeed.
Malicious
prosecution
[40]
The
plaintiff’s claim of malicious prosecution against the second
defendant is that the second defendant “on recommendations
of
the members First Defendant, decided to prosecute Plaintiff
”
,
that there was no reasonable and/or probable cause for the
prosecution, which was malicious as the proceedings were instigated
without such reasonable or probable cause by members of the second
defendant who acted with
animo
injuriandi
and the prosecution failed. In the joint minute signed the plaintiff
contended that the malicious prosecution claim was based on
the
failure of the second defendant to apply its mind to the contents of
the police docket and to exercise its discretion properly
so as to
realise that the State had a weak case against the plaintiff; and
that had it done so this would have led to the withdrawal
of the
charges against the plaintiff and his release from custody. It was
agreed that it was for the plaintiff to prove that his
prosecution
was malicious.
[41]
It
was pleaded for the second defendant that the plaintiff was
prosecuted “
based
on the available facts at the time
”
but denied that members of the first defendant recommended to the
second defendant that the plaintiff be prosecuted. The
allegations
were duly investigated, with it revealed that the victim was residing
with the plaintiff and the victim’s grandmother
at the same
residential address at the time. The victim was medically examined
and found to be traumatised, with injuries consistent
with the
complaint; and, after assessment, was found to need psychological
counselling. When the minor child was found not to be
able to
withstand testifying on 18 September 2015, the prosecutor decided to
withdraw the charges against the plaintiff. It was
therefore denied
that there was no reasonable or probable cause for the prosecution of
the plaintiff, or that the prosecution was
malicious.
[42]
In
order to succeed leave as is his claim of malicious prosecution, the
plaintiff must prove that the second defendant set the law
in motion
by instigating the prosecution against him; acted with malice
(or
animus
injuriandi,
for
which purpose
dolus
eventualis
will
suffice); acted without reasonable and probable cause; and the
prosecution failed.
[18]
There
is no dispute that the second defendant set the law in motion insofar
as it instigated, in the sense that it instituted,
the prosecution of
the plaintiff in court. There is also no dispute that the rape charge
against the plaintiff was withdrawn and
has not to date been
re-instituted. To this extent, there is no dispute that the
prosecution of the plaintiff did not proceed.
In issue is whether the
second defendant acted with malice and without reasonable and
probable cause in this regard.
[43]
The
absence of
reasonable
and probable cause exists where, viewed objectively, there exist no
reasonable grounds for the prosecution, or if there
do, the defendant
does not, viewed subjectively, believe in the plaintiff’s
guilt. This requires regard to be had to the
facts of the case, with
the facts reasonably indicating that the plaintiff probably committed
the crime.
[19]
[44]
In
Rudolph
v Minister of Safety and Security
[20]
it was stated in relation to the requirement of malice that what has
to be proved is
animus
injuriandi
in
the manner set out in
Minister
of Justice and Constitutional Development v Moleko,
[21]
namely
that:
‘
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.”
[45]
The
evidence for the defendants was that a case manager at the Sexual
Offences and Community Affairs Unit of the Thuthuzela Centre
at
Khayelitsha Hospital and who is based at the Khayelitsha Magistrate’s
Court, Ms Audrey Phiri, examined the docket in the
matter in which
she found the complainant’s statement, the victim statement and
the J88 medical report. From the contents
of the docket it was
apparent that a criminal complaint of rape and common assault had
been made by the complainant on 18 October
2013 against the plaintiff
and his mother. On 19 October 2013 a statement was obtained from the
complainant from which it was apparent
that she had seen the minor
child walking strangely and that he had told her he had been raped by
“bhuti”. When asked
whether by this he meant the
plaintiff, the child replied “yes”. On investigation by
the complainant it was found that
the child’s anus was
“reddish”. The child begged her not to tell anyone
because he was concerned his grandmother
would assault him. A
statement was obtained on 19 October 2013 from the minor child in
which he indicated that the plaintiff had
raped him by inserting his
penis into the child’s anus. The J88 medico-legal examination
report recorded that the child had
the imprint of a shoe on his
shoulder blade which the doctor recorded to be suggestive of being
held down with a boot or a shoe,
that he was dirty with stained
underpants, that he was crying and withdrawn and that he experienced
“extreme tenderness on
insertion of rectal swab”. The
statement of a further witness dated 18 October 2013 confirmed the
report of the complainant.
The investigating officer deposed to a
statement in which he stated that the forensic crime kit obtained
from the doctor was booked
into the SAP13 register for despatch to
the forensic science laboratory.
[46]
Ms
Phiri signed the relevant docket before it went to court, indicating
that once the docket is at court the prosecutor guides police
in
gathering information, with an investigation diary recording the
steps taken. Prosecutor Mr Heinrich Solomon screened the docket
and
decided to enrol the plaintiff’s matter on the court roll
having concluded, based on the information contained in the
docket,
that there was a strong case against the plaintiff and certainly a
prima
facie
one for him to answer. His evidence was that he would not have placed
the matter on the court roll if it there were no prospects
of a
successful prosecution in the matter. It remained however for the
court to determine the matter, including any challenges
to issues
such as identification or related to the medical evidence. Mr Solomon
in evidence denied that there had been a malicious
prosecution of the
plaintiff and indicated that no representations were made to have the
charge withdrawn and no further particulars
were requested by the
defence.
[47]
Prosecutor
Ms Elana Bester testified that she interviewed the child in September
2015, who was so emotionally traumatised that he
could not speak,
even with an interpreter. She stated that it was clear to her that
the child was still in need of counselling
and unable to testify
about the incident and, to avoid his exposure to further secondary
trauma, the charge was provisionally withdrawn
against the plaintiff.
[48]
It
was contended for the plaintiff in argument that his claim of
malicious prosecution turned on the fact that the second defendant
had acted with malice and did not assess the evidence to determine
whether probable cause existed to justify the prosecution of
the
plaintiff. There was however no substantial challenge by the
plaintiff to the evidence tendered regarding the claim of malicious
prosecution on behalf of the second defendant. The result is that the
evidence of the two prosecutors and Ms Phiri stands to be
accepted as
both credible and reliable accounts as to the basis for the
prosecution.
[49]
Having
regard to the evidence as a whole and in the light of the applicable
legal principles, I am not persuaded that the plaintiff
has
discharged the onus of proving that the second defendant or its
members acted with malice (even on the basis of
dolus
eventualis
)
and without reasonable and probable cause in its prosecution of the
plaintiff. Both prosecutors and Ms Phiri indicated that they
had
regard to the relevant facts as contained in the docket before the
matter was placed on the court roll. There is no evidence
that they
failed to take reasonable care to inform themselves of the true state
of affairs. There is also no basis on which to
reject their evidence
that the material contained in the docket indicated a
prima
facie
case against the plaintiff. It follows that on the evidence before
this Court there is no basis to support a finding that the second
defendant or members of his office acted with malice (or
animus
injuriandi,
for
which purpose
dolus
eventualis
will
suffice) or that they acted without reasonable and probable cause in
prosecuting the plaintiff. For these reasons the
plaintiff’s
claim of malicious prosecution cannot succeed.
[50]
Since
the plaintiff has not succeeded in his action, there is no reason why
costs should not follow the result.
Order
[51]
In
the result, an order is made as follows:
1.
The
plaintiff’s claims against the first and second defendant are
dismissed with costs.
_______________________
K
M SAVAGE
Judge
of the High Court
Appearances
:
For
plaintiff: Mr Z Bobotyana
Instructed
by Godla & Partners
For
defendants: Mr JJ Moses and thereafter Mr J van der Schyff
Instructed
by the State Attorney
[1]
2011
(5) SA 367
(SCA) (2011 (1) SACR at para 6.
[2]
1986
(2) SA 805
(A)
at 818G-H.
[3]
Sekhoto
(supra)
at
para 30.
[4]
Sekhoto
(supra)
at
para 39.
[5]
Minister
of Safety & Security v Swart
2012 (2) SACR 226
(SCA) at para 20 with reference to
Mvu
v Minister of Safety and Security
2009
(2) SACR 291 (GSJ); 2009 (6) SA 82.
[6]
2009
(2) SACR 291
(GSJ)
(2009 (6) SA 82
at 298C.
[7]
See
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 814D-E. See also
Minister
of Law and Order and Others v Hurley and Another
1986
(3) SA 568
(A) at 579F-G; and
Minister
of Law and Order and Others v Pavlicevic
1989 (3) SA 679
(A) at 684G.
[8]
1988
(2) SA 654
(SE) at 658G-H.
[9]
Moses
v Minister of Safety and Security
[2015]
ZAGPJHC 35 at para 6.
[10]
1956
(2) SA 777
(T) at 780.
[11]
1965
(4) SA 399
(W) 400G.
[12]
1949
(1) SA 231 (T) 238.
[13]
2004
(1) SACR 131 (T).
[14]
Op
cit
at
paras 11, 12 and 14.
[15]
Mvu
v Minister of Safety and Security & Another
2009 (2) SACR 291
(GSJ) at para 9
[16]
Duncan
v Minister of Law and Order
1984 (3) SA 460
(T) at 465-6
[17]
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) at para 6
[18]
Woji
v Minister of Police
[2015]
1 All SA 68
(SCA)
at para 33;
Rudolph
v Minister of Safety and Security
2009
(5) SA 94
(SCA)
at para 16 and
Minister
van Polisie v Van der Vyver
[2013] SASCA 39 at para 21.
[19]
Neethling,
Potgieter and Visser
Law
of Delict
7th
Ed. at pp 366-367.
[20]
At
para 18.
[21]
[2008]
3 All SA 47
(SCA) para 8.