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[2014] ZAGPJHC 272
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Cholo v Minister of Safety And Security (03416/2013) [2014] ZAGPJHC 272 (21 October 2014)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 03416/2013
DATE: 21 OCTOBER 2014
In the matter between:
TLOU KLEINBOOI
CHOLO
..........................................................
Plaintiff
And
MINISTER OF SAFETY AND
SECURITY
....................................
Defendant
JUDGMENT
WEINER J:
Introduction
1. The plaintiff, who is a police
officer, claims an amount of R940 000 from the defendant based on an
alleged malicious prosecution
by members of the South African Police
Services (“SAPS”). The plaintiff initially also claimed
damages in respect of
unlawful unrest and detention but this claim
was previously dismissed.
2. The claim relates to the plaintiff’s
arrest and prosecution for involvement in a breaking-in and theft at
the SAPS offices
in Germiston in which precious stones were stolen.
The test for malicious prosecution
3. In order to succeed, the plaintiff
must prove:-
a. That the defendant instigated or
instituted the proceedings against him;
b. That the defendant acted without
reasonable and probable cause;
c. That the defendant acted animo
iniuriandi; and
d. That the prosecution against the
plaintiff has failed.
See Minister of Justice and
Constitutional Development and Others v Moleko
2009 (2) SACR 585
SCA
at [8].
The facts
4. The first investigation officer,
Warrant Officer Fritz (“Fritz”), gave the following
evidence, which is common cause:-
4.1. He acted upon a complaint by a JA
Pretorius, a member of the SAPS, who had opened a case in respect of
an incident of breaking
in at the SAPS offices in Germiston;
4.2. The plaintiff’s motor
vehicle with registration number KDX917GP was identified by a
security guard who was on duty when
the incident occurred. The
security guard made a statement in which the registration number was
contained, and it was ascertained
that the vehicle belonged to the
plaintiff.
4.3. On the 3rd of October 2005 the
plaintiff, who was on duty as a police officer, was asked to report
to the Norwood police station.
4.4. The plaintiff was questioned and
he, with the SAPS, went to the plaintiff’s friend’s,
Daniel Magau’s (Magau),
house where the plaintiff’s
vehicle was parked.
4.5. In the vehicle, at Magau’s
house in Roodepoort, tools and two grinders, and other
“housebreaking” tools were
found.
4.6. The plaintiff was thereafter
arrested.
5. The new investigation officer Meshak
Naohikwa Makhubo (“Makhubo”), testified that:-
5.1. He received a docket with certain
exhibits, which were handed in and registered under the SAP 13.
5.2. The grinder that was found in the
plaintiff’s car was sent for forensic investigation and he
received a report that this
was the grinder used in the breaking in.
The above factors are common cause.
6. The plaintiff, in his particulars of
claim, sets out that on or about the 4th of October 2005 and at or
near Germiston police
station, Inspector Fritz and other servants of
the defendant wrongly and maliciously set the law in motion by laying
false charges
against the plaintiff, that of housebreaking and theft
and illegal possession of precious stones, by giving the following
false
information to the prosecutor:-
6.1. That the plaintiff’s vehicle
was involved or used in the commission of a crime at the premises of
the gold and diamond
unit of the SAPS;
6.2. That the plaintiff was involved in
the breaking in of the premises of such unit and that he stole
precious stones that were
being kept there;
6.3. That when laying these charges and
getting such information, the defendant had no reasonable and
probable cause for so doing,
nor did he or they have any reasonable
belief in the truth of the information given;
6.4. As a result thereof, the plaintiff
was unlawfully detained on the 3rd of October 2005, and released on
bail on or about the
10th of October 2005.
6.5. As a result of the defendant’s
conduct, the plaintiff was prosecuted in the Germiston Magistrates
Court, but was acquitted
on the 23rd of June 2009.
7. In regard to the evidence of Fritz
and the plaintiff, the main factual dispute is whether or not, at the
time Fritz asked the
plaintiff where his vehicle was, the plaintiff
immediately told him that it had been used by his friend, Daniel
Magau (the plaintiff’s
version), or whether, as the defendant
states, it took some two hours before the plaintiff gave this
information. The relevance
of this dispute is that Fritz bases one of
the reasons for the arrest of the plaintiff on the fact that the
plaintiff did not cooperate
by telling them where his vehicle was.
This therefore laid suspicion at the door of the plaintiff. In
addition, it appears that
the plaintiff did not offer any information
as to where he was at the time that his vehicle was used in the
break-in.
8. The plaintiff was not identified at
an identification parade by the security guard. The plaintiff
accordingly relies on the fact
that the police did not have
sufficient evidence to refer the matter to a prosecutor for decision
on whether to prosecute or not,
and in so doing, they used the false
statement of Tshabalala to implicate the plaintiff.
9. According to the plaintiff, the
investigation officer, Fritz, and other members of the SAPS, did more
than one would expect from
police officers, in that they, inter alia,
furnished the prosecutor with a false statement of one Mr. David
Tshabalala (Tshabalala),
which implicated the plaintiff.
10. Alternatively, it is alleged that
Fritz ought to have known that there was no evidence to prove the
plaintiff’s guilt,
because there was no evidence linking the
plaintiff to the crime scene other than the fact that his car was
suspected of being
involved in the crime.
The law
11. In Relyant Trading (Pty) Ltd v
Shongwe
[2007] 1 ALL SA 375
(SCA), the SCA stated the following at
[14]:-
“The requirement for malicious
arrest and prosecution, that the arrest and prosecution be
implemented “in the absence
of reasonable and probable cause”,
was explained in Beckinstrate v Rocher
1955 (1) SA 129
A at 136A-B as
follows:-
‘When it is alleged that a
defendant had no reasonable cause for prosecuting, I understand this
to mean that he did not have
such information as would lead
reasonable man to conclude that the plaintiff had probably been
guilty of the offence charged; If
despite his having such
information, the defendant in shown not to have believed in the
plaintiff’s guilt, the subjective
element comes into play and
disproves the existence, for the defendant, of reasonable and
probable cause.’
12. The plaintiff relies on the
decision of Hawkins J in Hicks v Faulkener
8 QBD 171
, cited with
approval by Gardener J in Waterhouse v Shields
1924 CPD 155
at 162:-
“I should define reasonable and
probable cause to be an honest belief in the guilt of the accused
based upon a full conviction
founded upon reasonable grounds, of the
existence of a state of circumstances, which, assuming them to be
true, would reasonably
lead any ordinary, prudent and cautious man,
placed in the position of the accused, to the conclusion that the
person charged was
probably guilty of the crime imputed.”
13. Further, in Waterhouse (supra) at
168, in dealing with malice and improper motive constituting malice:-
“If a man acts in a grossly
negligent and reckless way, acting in the furtherance of his own
interest without due regard to
the rights of others, and careless as
to whether he interferes with the liberty of another person or not, I
infer that he has been
actuated by an improper motive”.
14. The plaintiff has submitted that
Fritz’s conduct was perpetuated by an improper motive, or that
he must have foreseen
the possibility that he was acting wrongfully,
but nevertheless continued to still act, reckless as to the
consequences of his
conduct and that he therefore arrested the
plaintiff without sufficient evidence linking him to the crime. As
such, he was initiating
the prosecution against the plaintiff, which
might lead to the plaintiff’s right to liberty and dignity
being infringed.
15. The evidence against the plaintiff
upon which the defendant relied was the following:-
15.1. His vehicle was used in the
commission of the offence;
15.2. According to the investigating
officer, it took some two hours before he informed the police where
his vehicle was;
15.3. The implements and tools involved
in the breaking in at the SAPS unit were found in his car;
15.4. Certain cell phone records of the
plaintiff (which were not proved in the case and are not therefore
accepted as the truth
of their contents) were put to the plaintiff in
enquiring whether he was in Germiston on the date in question. The
plaintiff denied
being in Germiston. He however admitted that he had
been asked by investigating officer Makhubo if he had been in
Germiston, and
in evidence he did not explain where he was at the
time in question.
15.5. Makhubo testified that after
further investigation he took a statement in terms of Section 204 of
the Criminal Procedure Act
from Tshabalala who implicated the
plaintiff (Tshabalala was not called to dispute either the taking of
the statement or the truth
of its contents).
16. Makhubo confirmed that he did
object to bail being granted to the plaintiff on the basis that:-
16.1. The plaintiff was a police
officer and there was reason to believe that he might interfere with
the investigation;
16.2. The serious nature of the crime
committed in the police building by police officers;
16.3. The tools and implements that
were found in the plaintiff’s motor vehicle.
17. At the criminal trial, for reasons
totally unknown to this court, and presumably the magistrate court
which heard the trial,
neither Fritz nor Makhubo were called to
testify. Both the security guard and Tshabalala denied the evidence
contained in their
statements. Again for reasons unknown, the matter
was left as such and the accused were acquitted. There was no attempt
by the
prosecution to examine the witnesses on their previous
inconsistent statements, nor was there an attempt by the prosecutor
to call
Makhubo and other witnesses as to the circumstances under
which the statements were taken.
18. Although the claim for unlawful
arrest and detention was dismissed, it forms background to the
malicious prosecution as it is
one of the elements in the chain of
events.
19. In Duncan v Minister of Law and
Order
1986 2 SA 895
A the court held that the police officer must
have reasonable suspicion in terms of Section 40 of the Criminal
Procedure Act. It
is sufficient if the person affecting the arrest
intends to deal with the arrested person under the provisions of
Section 50. It
follows that for the purpose of lawful arrest, it is
sufficient that the person affecting the arrest should do so with the
intention
of conducting further investigation and, depending on the
result of such investigation, to charge or release the arrestee.
Section
40(1)(b) provides that the arresting officer must have a
reasonable suspicion that the suspect had committed an offence
referred
in Schedule 1 of the Act. The test as to whether a
reasonable suspicion could have existed is an objective one –
that of
the reasonable person with the knowledge and experience of a
peace officer, based upon the facts and circumstances then known to
the arresting peace officer.
20. The defendant submitted that on the
evidence of the defendant’s witnesses, more particularly Fritz,
the fact that the
whereabouts of the plaintiff’s vehicle were
concealed from the police for approximately two hours and tools
thereafter being
found in the plaintiff’s vehicle, in an
offence which was considered to be serious involving a police
officer, there was
a reasonable suspicion that the plaintiff had
committed an offence.
21. Further investigation then
conducted by Makhubo, involved the forensic evidence of the grinder
being used in the offence, the
plaintiff’s failure to give a
satisfactory answer in regard to his cell phone being used in the
Germiston area on the date
of the incident, and the statement of
Tshabalala. These together gave him sufficient information to hand
over to the prosecutor,
for the prosecutor to decide whether or not
to prosecute. It is apparent that the prosecutor believed that there
was sufficient
evidence based upon what he received.
22. Tshabalala’s statement is in
very precise detail describing dates, times, various persons by name,
amounts of money, makes
of cars, security codes, etc. He places the
plaintiff on the scene and describes him as a participant in the
planning and execution
of the robbery.
23. Makhubo gave evidence that he had
taken this statement from Tshabalala. Tshabalala was not called by
the plaintiff to dispute
either the taking of the statement or the
contents thereof. Accordingly, one must accept, for the purposes of
this action, that
Makhubo obtained this statement, which he had no
reason to disbelieve, having taken into account the additional
factors set out
in paragraph 15 above, Makhubo believed that there
was sufficient evidence to hand over to the prosecuting authorities
to enable
them to decide whether or not to prosecute.
24. The plaintiff needs to prove, in
regard to the liability of the defendant, that the police officers
did more than one would
expect from a police officer in the
circumstances, in the sense of acting their own interests, against
those of the plaintiff,
and falsifying affidavits. In the present
case, it appears that what the police officers did was to give, what
they believed to
be, a fair and honest statement of the relevant
facts to the prosecutor, leaving it to the latter to decide whether
to prosecute
or not. See Prinsloo and Another v Newman
1975 (1) SA
481
A at 492 C-F and 495A.
25. In this regard, in Minister of
Justice and Constitutional Development and Others v Moleko (supra) it
was held:-
25.1. That the plaintiff has to prove
that the defendant instigated or instituted the proceedings against
him. The plaintiff alleges
that the defendant instigated the
proceedings by providing the officers and the prosecutor with
information that was not a fair
and honest statement of relevant
facts.
25.2. In addition, the plaintiff must
show that the police acted without reasonable and probable cause.
25.3. That the plaintiff acted animus
iniuriandi. The onus is on the plaintiff to prove malice in the form
of intention to injure.
This requires that the defendant/police
officer acted with knowledge that what he was doing was wrongful or
at least that he was
reckless as to the consequences of his conduct.
See Relyant Trading Ltd v Shongwe (supra) para 5 and Minister of
Justice v Moleko
(supra) at para 61 to 65. The plaintiff has failed
to prove this.
25.4.That the prosecution against the
plaintiff has failed.
26. In regard to the first requirement
the plaintiff must show what part the police played in the alleged
malicious prosecution.
As was held in Prinsloo (supra) if the police
officer simply gives a fair and honest statement of the relevant
facts to the prosecutor,
it cannot be held that he has gone further
and actively assisted the prosecution beyond his duty as a police
officer. Having regard
to the statement made by Tshabalala (even
though he reneged on same at the trial) and the other factors
referred to in paragraph
15 above, in my view, there was sufficient
evidence before the police at the time for them to have a reasonable
belief in the matter
and to therefore hand it over to the
prosecution.
27. In dealing with the absence of
reasonable and probable cause, as was explained in Depenstrater v
Rocher and Churnison (supra)
at 136A-B:-
“When it is alleged that a
defendant had no reasonable cause for prosecuting, I understand this
to mean that he did not have
such information as would lead a
reasonable man to conclude that the plaintiff had probably been
guilty of the offence charged;
if, despite his having such
information, the defendant is shown not to have believed in the
plaintiff’s guilt, a subjective
element comes into play and
disproves the existence, for the defendant, of reasonable and
probable cause.” See also Relyant
Trading (Pty) Ltd (supra) at
[14].
28. It follows that a defendant will
not be liable if he held a genuine belief, founded on reasonable
grounds, in the plaintiff’s
guilt. See Relyant Trading (supra)
at [14]. In my view, any reasonable person in the position of both
Officers Fritz and Makhubo,
on the information available to them,
would have had a reasonable suspicion that the plaintiff was involved
in the commission of
the offence.
29. It follows from Beckinstrate v
Rocher (supra), as confirmed in Relyant Trading v Tshongwe (supra)
that a defendant will not
be liable if he or she held a genuine
belief founded on reasonable grounds, in the plaintiff’s guilt.
Where reasonable and
probable cause for an arrest or prosecution
exists, the conduct of the defendant instigating it, is not wrongful.
30. In regard to animus iniuriandi,
this 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.” See Minister of Justice and
Constitutional Development and Others
v Moleko (supra) at [63].
31. In my view, the plaintiff has
failed to prove any of the elements of the offence other than that
the prosecution failed.
32. I do not have to deal with quantum
in view of my decision but the following observations in this regard,
are made:-
32.1. Although the plaintiff claimed
R45 000 in respect of legal expenses, his evidence did not support
this claim. He could not
show any evidence of what he paid, how much
he paid and when he paid. All he could say was that he paid a total
amount of about
R40 000 in cash to the attorney. The attorney was not
called to confirm this.
32.2. The plaintiff claims damages for
emotional and psychological stress but provided no evidence other
than that he was upset/stressed
when he was arrested in front of his
colleagues. There was no medical expert to assess precisely what
emotional stress he had suffered
or at all, and there was no
quantification of this claim at all.
33. In my view, even if he had
succeeded on the merits, he has failed to prove the basis upon which
damages should be awarded, or
the amount thereof.
Accordingly, the following order is
made:-
1. The plaintiff’s action is
dismissed with costs.
WEINER J
Counsel for the Plaintiff: Adv N
Zwane
Plaintiff’s Attorneys:
Manugeni Inc.
Counsel for the Defendant: Adv S
Mathabathe
Defendant’s Attorneys: The
State Attorney
Date of Hearing: 5 August 2014
Date of Judgment: 21 October 2014