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[2020] ZAWCHC 77
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Khumalo v Minister of Police and Another (17132/15) [2020] ZAWCHC 77; 2021 (1) SACR 551 (WCC) (29 July 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 17132/15
In
the matter between
SANDILE
KHUMALO
PLAINTIFF
AND
MINISTER OF
POLICE
1
ST
DEFENDANT
DIRECTOR OF PUBLIC
PROSECUTIONS
2
ND
DEFENDANT
JUDGMENT
THULARE AJ
[1]
Plaintiff’s action against the defendants is for unlawful
arrest, subsequent detention and malicious prosecution. The
defendants denied the unlawfulness of the arrest and detention and
denied that there was no reasonable and probable cause to institute
the prosecution. The merits and quantum were separated and the trial
proceeded for the determination of liability on the merits
only.
[2]
On 21 February 2014 at around 16H00 Mboneni Andrew Sifuba reported a
crime to the SAPS in Plettenberg Bay. He had been stationed
as a
Security Guard by Prime Security at Checkers at around 01H50 that
morning. After a routine patrol and whilst around the steps
next to
the Coffee shop, he heard a banging sound and went to inspect. He saw
four men and one female running up the stairs around
Kodak store. He
noticed that one of the males was big or fat wearing a pink cap and
the female was wearing a tracksuit with two
pink stripes and was
about 1,6m. The female was carrying a black bag and the group got
away. He went back to Kodak store and noticed
that the door was
forced open and broken, and he saw the broken glasses. He could see
that some items had been removed from the
store but could not say
what it was. He reported this to his company immediately. A docket
was opened and allocated CAS 277/02/2014
on the police case
management system. His statement was filed as A1. The docket was
handed in as part of the record of these proceedings
as an exhibit
bundle. The list of the stolen items was subsequently received by the
police from the Kodak store Manager and amounted
to a loss of R182
070-00.
[3]
On 7 March 2014 the plaintiff walked on Kodak shop to have photos
developed. He handed the necessaries over, paid for the development
and waited. The police arrived at the shop. He could see the eye and
head gestures by the shop assistants amongst themselves and
to the
police and he was arrested. He was told about a video footage which
formed the basis of his arrest and charges of housebreaking
with
intent to steal and theft against him. He denied the allegations and
told the police that it was his first visit in Plettenberg
Bay. He
appeared before court in the district court. He was about to proceed
with a bail application when he was informed that
there were further
charges to be put against him and he abandoned his bail application.
His case was transferred to the Regional
Court. The charges against
him were withdrawn after he spent almost a year in prison.
[4]
Vincent Windvogel was an employee of Kodak store at the time that the
plaintiff was arrested. In his testimony before this court,
he had no
recollection of what was said or done on 7 March 2014. He could not
recall seeing the plaintiff. He could not say that
the person who
appeared on the photos provided to this court as exhibits was the
plaintiff. There had been a housebreaking at the
store and it was
captured by video cameras. The store manager had downloaded that
footage onto Windvogel’s phone.
[5]
According to the affidavit he deposed to the police a day after the
arrest, filed as A4 in the docket, he is the one who caused
his
colleague, Henie, to call the police to the store on 7 March 2014.
This was the day the plaintiff was arrested. In that affidavit,
he
had said that he was with two of his colleagues inside the Kodak
store, one of which was Hennie. He saw three men inside the
store and
had recognized two of them as those captured on the video footage
during the housebreaking and theft. He had another
look at the video
on his phone and saw that the two men in the store were the same
persons as those on the video. It was
on that basis that he
caused that the police were called and the plaintiff was arrested. He
had identified the plaintiff as one
of the persons who was on the
video footage that captured the housebreaking and theft. Plaintiff
was the one, on the video footage,
who first tried to force the door
open. If he saw the person who was arrested again he would be able to
recognize him.
[6]
John Nomdoe was a detective warrant officer in the South African
Police Service stationed in Plettenberg Bay. He received the
call and
drove to Kodal store. Windvogel pointed out the plaintiff to him and
reported that the plaintiff was one of those who
broke into the shop.
Windvogel also showed him photos on his phone and he could see that
the plaintiff was identical to the person
on the photos on
Windvogel’s phone. He arrested the plaintiff for the
housebreaking and theft. There were other photos which
he saw at the
shop, which were enlarged photos of those on Windvogel’s phone.
Windvogel was with two of his colleagues who
worked inside the store.
[7]
Nomdoe recognized the plaintiff by his physical features being his
built. These features were that he was tall, slender with
long legs,
small ears in comparison to how tall he is, the shape of his head and
slightly sharp nose. He made the comparison on
a combination of all
the physical features and not one striking feature. Nomdoe knew that
there was video footage but did not view
it.
[8]
The plaintiff wanted to make a call from a Samsung phone. Nomdoe
prevented him from doing so, and confiscated the phone. Nomdoe
asked
the plaintiff as to that phone’s ownership. The plaintiff said
it was his. Upon circulation at the police station,
Nomdoe determined
that the cellphone was stolen from Oudsthoorn and reported and CAS
69/11/2013. Nomdoe confiscated the phone and
added a further charge
of unlawful possession of stolen property against the plaintiff. The
background check of the plaintiff on
the criminal record system
indicated about ten pending cases with four having warrants of arrest
issued for failure to attend court.
[9]
Henriette Breedt was the prosecutor who dealt with the matter on the
first appearance in Plettenberg Bay. There was a
prima
facie
case
against the plaintiff. There was evidence under oath, that an offence
had been committed. There was evidence under oath by
Nomdoe and
Windvogel linking the plaintiff to the commission of the offence.
There was evidence under oath there was a video available
as evidence
on the question of the identity of the plaintiff. The plaintiff had
previous convictions and it was a schedule 5 offence.
She opposed the
plaintiff being granted bail. The matter was transferred to Knysna
for a formal bail application when the plaintiff
indicated that he
wanted to bring a formal bail application.
[10]
The contents of the docket and the charge sheets were admitted into
the record by agreement between the parties. From a reading
of the
docket, there was outstanding evidence in that the entries by the
investigating officer and the Detective Branch Commander
on the C
part of the docket, which is the investigation diary, indicated that
the Local Criminal Record Centre report was outstanding.
In other
entries, especially on the one dated 10 March 2014, the impression
left by the Branch Commander’s entry, which reads
that
“fingerprints results outstanding”, created an impression
that there were fingerprints lifted from the scene of
the
housebreaking and theft.
[11]
The plaintiff made his first appearance on 10 March 2014 in
Plettenberg Bay. Breedt argued for the further investigation and
further detention of the plaintiff pending investigation and trial.
She only dealt with the matter when it was in Plettenberg Bay.
The
matter was moved from Plettenberg Bay to Knysna on the same day of
first appearance to enable the plaintiff to proceed with
his bail
application. At Knysna the matter was postponed to 20 March 2014 for
the formal bail application. The plaintiff abandoned
his bail
application on 20 March 2014 when he learnt about further charges
intended to be brought against him. The matter was on
the same date
of abandonment referred back to Plettenberg Bay where it was
postponed to 5 May 2014 for further investigation. On
5 May 2014
Breedt argued for the postponement of the matter to 6 June 2014 for a
Regional Court date. That day, 5 May 2014, was
the last day she had
the docket with her. She only dealt with the matter until 6
June 2014 when the matter was postponed
for the intake into the
Regional Court to 16 July 2014.
[12]
From 16 July 2014 to 17 July 2014, when the matter was ultimately
transferred to the Regional Court for appearance on 14 August
2014
different prosecutors dealt with the matter. There is no entry on the
docket which indicate that Noyi, who prosecuted on 16
July 2014 or
Goloda, who prosecuted on 17 July 2014 ever had the docket at any
stage. Breedt testified that she did not have the
docket on 6 June
2014. The charge sheet of 16 July 2014 recorded that Noyi addressed
the magistrate and told him that there is
no Regional Court date
available. The docket could not be traced and that was the reason for
the request for the postponement.
It means Noyi did not have the
docket that day. There is no indication that Goloda had the docket
either. If they had it, there
is no entry of their industry on the
investigation diary.
[13]
Lawrence Ntlabati was the detective sergeant in the SAPS who
investigated the theft at Vivido shop in Plettenberg Bay, the
second
docket. Sophie Spies had done stock control on the morning of 01
November 2013 in the shop. In the afternoon she had attended
to three
unknown black men who had shown interest in some jewellery. It was
only after they had left the shop that she had noticed
that three
diamond rings were stolen. On checking the video footage, it was
discovered that the rings were removed whilst she was
distracted
during her interaction with the men.
[14]
Ntlabati received the video footage from what the police call the
“war room” on 17 March 2014. He was viewing the
pictures
when Nomdoe, his colleague in the detective unit who also saw the
pictures, told him that the person matching the tall
guy in the
photos was in prison. Nomdoe was referring to the plaintiff. Ntlabati
went to prison and identified the plaintiff as
the person on the
photo. It was the shape of the plaintiff’s head, the ears which
are smaller than an average person’s
ears, his short sharp
nose, his big hands, the area between his waist and knees, his
complexion, his height and his long legs.
He conceded that the
plaintiff’s nose was not as sharp as the nose of the person on
the photos on which he relied. The video
footage reflected an
incorrect date. The Vivido case was added as an additional
charge to the charge that Nomdoe was already
investigating against
the plaintiff. The investigating officer himself, who is the person
linking the plaintiff to the crime through
a photograph, conceded the
differences of the person on the photo and the person of the
plaintiff.
[15]
The first page of the record of proceedings before the Regional
Magistrate, MP Fourie, went missing. Be it as it may, the plaintiff
made his first appearance before the Regional Magistrate on 14 August
2014 according to the charge sheet. It is unknown what the
magistrate
was told. The available record indicated that the plaintiff appeared
on 9 September 2014 and the matter was postponed
to 25 September 2014
by agreement and the further detention of the accused was ordered.
Strangely, the magistrate recorded that
bail was formally refused. It
is not clear who told the magistrate this simple untruth.
[16]
On 25 September 2014, the Regional Court Prosecutor, J Erasmus, told
the court that the fingerprints were lifted and that the
video
material was available. The matter was postponed to 26 January 2015
for further investigation with possible trial dates indicated
as 3,11
and 12 February 2015. On 26 January the matter was postponed to the
next day for the docket and the investigating officer.
On 27 January
2015 the prosecutor, K Barnard, informed the court that she had
called the investigating officer who indicated that
he had arranged
for the video material and that the Prosecution would strive to avail
it the following week, and further that they
would keep contact with
the defence including with the fingerprints evidence. The matter was
postponed to 3, 11 and 12 February
2015 for trial. On 3 February 2015
the charges against the accused were withdrawn.
[17]
Following the decision of the prosecutors, the matter was transferred
to Regional 1, George for appearance on 14 August 2014
for trial.
Indications on records titled “Regional Court Notice, George”
dated 26 August 2014 are that the matter was
on that day postponed
for follow-up work and set down for 25 September 2014 as a
provisional trial date. By 9 September 2014 the
prosecutors were
still aware that the fingerprint reports and the report from the war
room were outstanding. They were aware that
the investigation was not
complete. Be it as it may, the regional court prosecutors set the
matter down for trial for 3 February
2015. By 26 January 2015 they
still did not have the copies of the video footage and the photo
albums. What is worse, is that the
evidence of Nomdoe and Ntlabati,
the two investigating officers, was that the last time they heard of
the matters and had the dockets,
was when they submitted the dockets
to Breedt in the district court in April 2014. The next time they
both heard anything about
the case or saw any instructions on the
docket for purposes of investigation was after the cases were
withdrawn in March 2015.
[18]
Julian Le Roux is the Regional Court Co-ordinating Prosecutor in
George. He told the court that a docket and a copy of the
charge
sheet would be sent from the district court to the Regional Court
Prosecutor when the investigation is complete. If according
to the
Regional Court Prosecutors the investigation is incomplete, the
necessary entries are made in the investigation diary and
the docket
is sent back to the investigation officer. If the investigation is
complete, the matter is enrolled on the regional
court roll. The
plaintiff’s case was allocated a date on the regional court
roll on 14 August 2014.
[19]
The docket was kept by the prosecutors for safe keeping, under his
control and a covering letter was sent to the investigating
officer
with instructions from the prosecutor after each appearance. He kept
the docket because there would be nothing more for
the investigating
officer to do because the investigation would be complete. This
explains why there would be no instructions in
the investigation
diary. He received both dockets complete with still photos relating
to both charges. The evidence according to
him was sufficient. He did
not see the plaintiff at the time that he screened the docket.
[20]
Barnard called him to discuss the matter with him on the trial date
in March 2015. It was decided to provisionally withdraw
the case
against the plaintiff. The investigation of the matter was
interrupted by the civil claim. There was no information or
instruction in the investigation diary between 28 April 2014 and 31
March 2015 due to the fact that the docket was in his possession.
Any
instructions from the prosecutor to the investigating officer would
have been recorded on a covering letter. The first time
that he
became aware of the existence of the other two witnesses who were in
the Kodak shop at the time of plaintiff’s arrest
was when
Barnard informed him on 3 February 2015. If he had become aware
earlier, he would have requested their statements.
[21]
The investigation diary of the housebreaking and theft charge makes a
telling reading. The still photos of the break-in were
made and were
handed to the investigating officer on 21 February 2014 and were
filed by him in the docket. Of all the photos there
is only once
close-up photo of the person the State alleged was the plaintiff. The
photo itself is not clear enough. In his entry
of same date the
investigating officer already mentions that the LCRC report was
outstanding with reference to fingerprints lifted
on the scene, and
that the CD of the video footage of the break-in would be sent to
what the SAPS call the “war room”
in Cape Town. The
officer commanding detectives also made these observations in his
note to the Public Prosecutor before the first
appearance of the
plaintiff. In fact, it is Captain Klein who on that date, 10 March
2014, suggested to the investigating officer
some investigation into
the possibility of holding a formal identity parade to determine if
the security officer may identify the
plaintiff as one of those
involved in the crime.
[22]
The video footage was given to the war room on 17 April 2014.
According to the SAPS, this was to help in the development of
the
photos to enhance identification of the suspects through the photos.
The results of the fingerprints as well as the photos
from the war
room on the video footage were not yet received back from the war
room when the investigating officer, Nomdoe, last
saw the docket when
it was submitted to the public prosecutors on 28 April 2014.
[23] The next entry
thereafter was the entry of 31 March 2015 when a prosecutor gave
instructions to him to guide the investigation
and it reads:
“
IO
(1)
Were
any fingerprints lifted on the scene and compared?
(2)
There
were two colleagues in the shop who assisted A1 on the day that the
accused was apprehended, please obtain their statements.
(3)
After
above queries had been complied with please send docket back for
decision.
Postea: Matter was
prov. Withdrawn.”
[24] In
Minister of
Safety and Security v Lincoln
(Case No 682/19)
[2020] ZASCA 59
(5
June 2020] it was said at para 20:
“ …
In
order to succeed in a claim for malicious prosecution a plaintiff
must establish that:
(i)
The
defendant:
(a)
Set
the law in motion (instituted or instigated the proceedings);
(b)
Acted
without reasonable and probable cause; and
(c)
Acted
with malice (or
animo
injuriandi);
and
(ii)
That
the prosecution failed.”
[25]
The police did not do anything more than to investigate the matter
and compile the evidence. Thereafter the police left it
to the
prosecutors to act on the prosecutors’ own judgment. The
exercise of the discretion by the Prosecutors and their decision
to
institute the criminal prosecution of the plaintiff, in both the
District and the Regional Courts, was the decision of the prosecutors
alone. It was for the prosecutors to assess all the material before
them in the dockets and allow themselves to be led thereby
in their
ultimate decision. There is no evidence that Nomdoe or Nhlabati
actively sought to persuade the Prosecutors to prosecute
the
plaintiff. I am not persuaded that there is a case against the
Minister of Police. In my view, the plaintiff had not
prima
facie
established the absence of reasonable and probable cause for the
arrest and detention by members of the SAPS. Both Nomdoe and Nhlabati
were peace officers, who entertained a suspicion that the plaintiff
committed an offence and the suspicion was based on reasonable
grounds [
Minister
of Safety and Security v Sekhoto
2011
(1) SACR 315
(SCA) .
[26] At para 45 of the
Lincoln
judgment it was said:
“…
Objectively
reasonable and probable cause can only be gleaned from an analysis of
the contents of the dockets. It involved the weighing
up of the
evidence favourable to Lincoln against that incriminating him and
testing the averments contained therein against the
objectively
established facts and the real evidence contained in the docket.”
The
dockets were discovered and used in the trial, and the court was able
to listen to the prosecutors identifying the evidence
therein
contained which justified their decisions. The court was able to
consider the dockets as a whole and obtained a full picture
of what
happened for purposes of its assessment.
[27]
The court has to assess whether the prosecutors, objectively viewed,
had reasonable grounds to believe that a prosecution of
the plaintiff
was justified. In my view, Breedt was the only effective prosecutor
in this case. She read the docket, considered
the law, and made a
decision on the matter, to wit, further investigation. At the time,
the fingerprints and the war room results
were outstanding. Until the
decision by the Regional Court Prosecutors for the remand of the
matter to 16 July 2014 for the intake
of the matter in the Regional
Court, her decision to postpone for further investigation and to
argue for the further detention
of the plaintiff and his prosecution
was sound.
[28]
There is no indication and no evidence before me that Noyi or Goloda
had the docket or even read it. It seems to me that the
two were
legally qualified, duly delegated information transmitters or
super-graced messengers wearing gold-embroidered National
Prosecuting
Authority black gowns. The power to decide was taken away from them
by the management systems of the National Prosecuting
Authority which
were in place in Knysna and George. Their primary duty had been
reduced to be to parrot before magistrates what
prosecutors in
offices said. They did not read the docket, consider the law or make
any decision on the matter involving the plaintiff,
yet they appeared
before a magistrate under the pretext that they were public
prosecutors and addressed the magistrate as such.
The DPP is silent
on these issues.
[29]
Since Nomdoe submitted the docket on 28 April 2014, the dockets had
always been with the prosecutors and were never returned
to the
investigating officers. The investigating officer, Nomdoe, never had
any guidance on the investigation of the matter from
the prosecutors
since the docket was sent to court in April 2014 until he received it
back after the charges were withdrawn on
15 March 2015. In fact, sad
as it may sound, Nomdoe received better guidance from the senior
management of the SAPS on the investigation
of the matter, than from
the Regional Court Prosecutors in George.
[30] If Le Roux is to be
believed, the plaintiff’s matter would not, by the Regional
Courts Prosecutors of George’s
own alleged standards, been
placed on the Regional Court roll. In my view, had any of the
Regional Court Prosecutors, including
Le Roux, read the docket when
it was submitted for their decision by Breedt after 5 May 2014, they
would have known that the investigation
was not complete and that the
matter was not ready for trial. Paragraph 5 of Windvogel’s
affidavit reads:
“
5
Ek het toe vir een
van my kollegas naamlik Henie ingelig om die polisie te skakel en ek
het toe die ander se foto’s gehou
tot W/O Nomdoe opgedaag het.”
[31]
For Le Roux to suggest that the Regional Court Prosecutors were not
aware, until 3 February 2015, that Windvogel was with colleagues
in
the shop when the plaintiff was arrested, was simply untrue unless
they did not read the docket. In my view, it is only a person
who did
not read the docket before 3 February 2015 who can lay claim to that
excuse. Le Roux’s testimony was that had he
been aware, he
would have sought that those statements be obtained. The inescapable
conclusion is that he and the Prosecutor who
appeared in court did
not read Windvogel’s statement. They also did not read the
investigation diary, for they would have
been aware that the LCRC
report on the fingerprints were outstanding and that the results of
the video footage from the “war
room” were also
outstanding.
[32]
Against this background, it was irrational for Le Roux or the
Prosecutor who appeared in court to conclude that the investigation
was complete and that the matter was ready for trial as at 16 July
2014. The photo relied upon which was in the docket at the time
was
not clear. Be it as it may, the picture was visible sufficient enough
for a reasonable prosecutor to observe that the shoulders,
ear lobes,
nose and the hairline of the person on the picture did not match that
of the plaintiff who stood in the dock. Where
reliance was placed on
the photograph, as in this instance, the facts upon which Windvogel
relied to conclude that it was the plaintiff
depicted, should lead a
reasonable observer of the photograph to the same conclusion.
[33]
The person on the picture had broader shoulders and his earlobes were
bigger, longer and more pointed at the top- end than
those of the
plaintiff. The person on the picture had a long pointed nose whilst
that of the plaintiff is broader and flatter.
The person on the
picture’s hairline starts far later on his forehead than the
plaintiff’s. Sitting with the picture
before you and looking at
the plaintiff, one finds it difficult to understand how a prosecutor
would conclude that it was evidence
of identity of the plaintiff
sufficient to put the plaintiff on trial. The Regional Court
Prosecutors in George, as regards the
photos, if they ever viewed
them, acted robot-like. They acted purely on the strength of the
existence of the photos without applying
their deemed independent
mind thereto. I agree with the police management in their
instructions to Nomdoe that this is one matter
where an identity
parade was necessary as regards the security officer who was on duty
at the time of the break-in.
[34] In
Minister for
Justice and Constitutional Development and Others v Moleko
2009
(2) SACR 585
(SCA) at para 63-64 it was said:
“
[63] Animus
injuriandi includes not only the intention to injure, but also
consciousness of wrongfulness:
'In this regard
animus
injuriandi
(intention) means that the defendant directed his will to prosecuting
the plaintiff (and thus infringing his personality), in the
awareness
that reasonable grounds for the prosecution were (possibly) absent,
in other words, that his conduct was (possibly) wrongful
(consciousness of wrongfulness). It follows from this that the
defendant will go free where reasonable grounds for the prosecution
were lacking, but the defendant honestly believed that the plaintiff
was guilty. In such a case the second element of
dolus,
namely of consciousness of wrongfulness, and therefore
animus
injuriandi
,
will be lacking. His mistake therefore excludes the existence of
animus injuriandi.'
[64]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.”
[35]
The Prosecutor(s) who appeared in court before the District Court on
16 and 17 July 2014 and in the Regional Court between
14 August 2014
and 3 March 2015 were identified. They were inexplicably not called
to testify in support of the DPP’s case.
There was no
suggestion that any of them were not available to testify. The
inference that they would not support the DPP’s
case is
justified. There was no reason for the prosecutors not to ensure that
no enrollment in the Regional Court for trial happened
until there
was reliable and credible evidence found to support the identity of
the plaintiff as the perpetrator of the crime.
[36]
The time has arrived for the DPP to trust Prosecutors who appear
before magistrates in the courts. They must be returned from
well-decorated glorified messengers to duly delegated legal
professionals with the authority of the State to read dockets, apply
their mind thereto against the background of the applicable law, and
decide on such matters. Office-based Managers should also
return to
their space which includes to train and guide, assess
work-performance, promote service standards and quality control,
enhance effective management and promotion of effective utilization
of resources and other related leadership duties. Accused persons
languishing in jail for long periods of time on matters before the
magistrates courts in particular, and the nation of the Republic,
deserve that.
[37]
On 17 July 2014, when the matter was postponed to 14 August 2014 for
trial in the Regional Court, the decision was not well-founded
upon
evidence reasonably believed to be reliable as regards the identity
of the plaintiff. The decision to enroll the matter in
the Regional
Court was not taken with care, and its profound consequences for the
plaintiff were not considered [
A
Practical Guide to the Ethical Code of Conduct for Members of the
National Prosecuting Authority
].
The decision to keep the docket in the safe because there was nothing
more for the investigating officer to do because the investigation
was complete, and consequently no instructions could be written in
the investigation diary of the docket was not based on the available
evidence and cannot be reasonable under the circumstances. There was
sheer dereliction of duty on the part of the prosecution.
[38]
The authority to decide to institute criminal proceedings in the
Regional Court envisages drastic action which carries the
invasion of
rights and liberties. It requires an analytical mind and a critical
assessment of the available evidence as to its
quality and cogency.
The evidence presented to the Regional Court Prosecutors in George on
17 July 2014 was the same evidence considered
on 3 March 2015, upon
which a decision was reached that the matter was not trial ready, and
if the instructions then given in the
investigation diary are
contextualized, for want of evidence as regards the identity of the
plaintiff as the perpetrator. The decision
to enroll the matter in
the Regional Court for trial from 17 July 2014 and the decision of
the Prosecutors in George to argue for
the detention of the plaintiff
between 17 July 2014 and 3 March 2015 was arbitrary.
[39]
In my view the plaintiff proved
animus
injuriandi
on the part of the DPP. Le Roux and the Prosecutors in the Regional
Court of George clearly intended to prosecute the plaintiff
fully
aware of the fact that, by so doing, he would in all probability be
'injured' as regards his privacy and liberty. The decision
to enroll
the matter in the Regional Court and to keep the plaintiff in custody
was not based upon evidence reasonably believed
to be reliable to put
the plaintiff on trial. The continued detention of the plaintiff
whilst there was no reliable evidence on
his identity as the
perpetrator and there was no continued investigation done in regard
thereto infringed on his liberty. With
this knowledge, Le Roux and
the prosecutors in the Regional Court in George took the decision to
prosecute him without making any
of the enquiries which cried out to
be made. They were reckless as to the possible consequences of their
conduct.
[40] For these reasons I
find in favour of the plaintiff against the second defendant, the
Director of Public Prosecutions, in his
claim for malicious
prosecution and detention from 17 July 2014 to 3 March 2015.
The
Registrar of the High Court is ordered to cause a copy of this
judgment to be served on the Director of Public Prosecutions,
Western
Cape Province, for her attention.
No cost order is made in
respect of First Defendant.
The Second Defendant to
pay the costs.
…………………………………………
.
DM THULARE
ACTING
JUDGE OF THE HIGH COURT