About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 117
|
|
Magwabeni v Liomba (198/2013) [2015] ZASCA 117 (11 September 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 198/2013
DATE: 11
SEPTEMBER 2015
Not Reportable
In
the matter between:
GEORGE
MAGWABENI
.............................................................................................
APPELLANT
And
CHRISTOPHER
LIOMBA
.......................................................................................
RESPONDENT
Neutral
citation
:
Magwabeni
v Liomba
(198/13)
[2015] ZASCA 117
(11
September 2015)
Coram:
Cachalia, Majiedt and Zondi JJA
Heard:
28 August 2015
Delivered:
11 September 2015
Summary:
Delict - Malicious prosecution –
requirements restated - whether plaintiff proved prosecution
initiated without reasonable
and probable cause and with malice.
ORDER
On
appeal from:
Limpopo
Local Division, Thohoyandou (Kganyago AJ sitting as court of first
instance):
1
The appeal is upheld with costs including the wasted costs occasioned
by the postponement of the appeal on 10 March 2014;
2
The order of the court a quo, as it relates to the defendant, is set
aside and replaced with the following order:
‘
The
plaintiff’s claim is dismissed with costs.’
JUDGMENT
Zondi
JA
(Cachalia and Majiedt JJA
concurring)
:
[1]
This appeal, with the leave of this Court, is against the judgment of
the Limpopo Local Division, Thohoyandou (Kganyago AJ)
finding the
appellant (‘the defendant’) liable for damages for
malicious prosecution. It arose from a complaint that
he had lodged
against the respondent (‘the plaintiff’) with the South
African Police Service, which was followed by
the latter’s
arrest and detention. The plaintiff was charged following the
complaint, but the charges were subsequently withdrawn
and he was
released after having spent a week in detention.
[2]
Following the withdrawal of charges against him the plaintiff
instituted two separate actions in the court a quo, one against
defendant and the other against the Minister of Police (‘the
Minister’). The basis of his claim against the defendant
was
predicated upon the allegation that the defendant had wrongfully and
maliciously set the law in motion by laying a false charge
of ‘theft
/fraud/trespassing’ with the Thohoyandou police. The plaintiff
alleged that the defendant had no reasonable
or probable cause for
doing so, and that he had maliciously conveyed this false information
to the police. The claim against the
Minister was for his ‘unlawful’
arrest and detention. The two actions were consolidated. The action
against the Minister
was dismissed. The plaintiff does not appeal
that outcome. This appeal by the defendant therefore concerns only
the adverse finding
against him.
[3]
The plaintiff’s evidence was that he was an electrical
contractor, working for the defendant, who ran a hotel business
in
Thohoyandou. He rented premises from the defendant. A dispute arose
between them and on 13 December 2008 the defendant informed
him by
letter that he was terminating his services and that he had to vacate
the premises by 15 December 2008. The plaintiff refused
to do so
because, according to him, he had not been paid for his work. On the
morning of 17 December 2008 a large contingent of
police officers
accompanied by the defendant arrived at the premises and accused him
of illegally occupying it. They told him that
they were there to
assist the defendant to evict him from the premises. Despite his
protestations he was handcuffed, bundled into
a police van and taken
to the police station.
[4]
There he was charged with malicious injury to property relating to
damage to the defendant’s electrical distribution-box
and
water-pump. He appeared before a magistrate the following day, and
was remanded in custody. A few days later the defendant
accompanied
by a police official, came to the prison and handed him a peace order
dated 18 December. At his next court appearance
on 23 December the
charges were withdrawn and he was allowed to leave.
[5]
The defendant’s evidence was that on 17 December, he received a
report that his hotel was on fire. He proceeded to the
hotel and on
arrival detected a smell of smoke. His employee, Ms Stella Zwitwano
Mathoma was standing at the distribution box.
It was open; the wires
had been removed and burnt, and the water-pump was damaged. He
suspected that the plaintiff was responsible
for the damage because
apart from himself, the plaintiff, with whom he was embroiled in a
conflict, was the only person who had
access to the distribution box.
[6]
In his statement to the police following upon his complaint, he
stated that he desired ‘further police investigation’
concerning the damage to his property. He also stated that the
plaintiff had fraudulently compiled invoices, stolen items and
connected the DSTV to his room without his permission. When asked
whether he had requested the police to arrest the plaintiff, he
insisted that he had not; he only wanted their assistance to evict
him, because he was refusing to leave. He also sought
and
obtained a peace order from the magistrates’ court on 18
December which he believed the police required to effect the
eviction.
[7]
Captain Tshivhuyahuvhi testified on behalf of the Minister. His
evidence was that while patrolling the area he received a complaint
regarding malicious damage to the defendant’s property. When
he, together with nine other police officers, arrived at the
property
the defendant was present. He showed them the damage to the wires in
the distribution box and to the water-pump. They
then arrested the
plaintiff and informed him that the charge was malicious damage to
property. When asked whether his purpose was
to evict the plaintiff,
at the defendant’s behest, he denied this.
[8]
The question before the court a quo was whether the defendant had
initiated the prosecution of the plaintiff maliciously. In
upholding
the plaintiff’s claim the court a quo held, first, that the
institution of criminal proceedings against the plaintiff
by the
defendant was not based on any reasonable suspicion, but rather on a
statement made by his employee, Ms Mathoma. And since
she was not
called to testify, what she had said to the police was inadmissible
as evidence. Secondly, it accepted the plaintiff’s
evidence
that his arrest had more to do with the defendant’s attempt to
evict him rather than the damage to his property.
It reasoned that
the defendant was aware that the plaintiff ‘. . . did not
damage his property, but wanted to use the State
machinery in order
to evict [the plaintiff].’ It therefore concluded that the
defendant had acted maliciously in initiating
the prosecution against
the plaintiff. It is against these findings that the appeal
is directed.
[9]
Malicious prosecution consists in the wrongful and intentional
assault on the dignity of a person encompassing his good name
and
privacy.
[1]
To
succeed with this claim, a claimant must allege and prove that:
(i) the defendant
set the law in motion (instigated or instituted the proceedings);
(ii) the defendant
acted without reasonable and probable cause;
(iii) the defendant
acted with malice (or
animo injuriandi
); and that
(iv) the prosecution
failed.
These
requirements were set out by this Court in
Minister
of Justice and Constitutional Development & others v Moleko
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA) para 8 and later restated
in
Rudolph & others v Minister of
Safety and Security & another
[2009] ZASCA 39
; (5) SA 94 (SCA) para 16. See also
Moaki
v Reckitt and Colman (Africa) Ltd & another
1968 (3) SA 98
(A).
[10]
This Court in
Beckenstrater v Rottcher and Theunissen
1955 (1)
SA 129
(AD) at 136A-B set out the test for ‘absence of
reasonable and probable cause’ 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 a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff’s guilt, a subjective element
comes into play and disproves the existence, for the defendant, or
reasonable and probable cause.’
[11]
The test contains both a subjective and objective element, which
means that there must be both actual belief on
the part of the
defendant and also that that belief is reasonable in the
circumstances (J Neethling, J M Potgieter and P J Visser
Neethling’s
Law of Personality
2 ed (2005) at 176).
[12]
The pleadings in this matter call for comment. The plaintiff’s
particulars of claim allege that the defendant
maliciously set the
law in motion by laying a false charge of ‘theft/fraud/trespassing
. . .’ with the police, which
gave rise to his arrest and
detention. There is no allegation of malicious injury to property,
even though he was, despite the
defendant’s protestations,
permitted to lead such evidence at the trial. However, the issue was
fully ventilated and we will
decide the appeal on this basis.
[13]
Another difficulty with the plaintiff’s cause of action was
that there is no allegation that the prosecution
had failed, which
rendered the pleading excipiable.
[2]
But
it was clear from the evidence that the prosecution had terminated
and the defendant’s counsel was prepared to accept
this.
[14]
I therefore proceed to consider whether the evidence supports the
allegation that the defendant set the law in
motion by falsely
accusing the plaintiff of trespassing on his property or of damaging
the electrical wires in the distribution
box and the water-pump. Put
another way, did he make statements to the police regarding these
allegations without an honest belief
founded on reasonable grounds
that they were true. This analysis involves an enquiry into the
defendant’s state of mind when
he lodged his complaint against
the plaintiff.
[15]
The evidence shows that there was a dispute between the parties,
which led the defendant to terminate the plaintiff’s
service
contract and to give him an eviction notice to vacate the premises he
was renting. The plaintiff refused to leave believing
that he was
entitled to stay until the dispute regarding the amount that was
owing to him was settled. At the same time the defendant
discovered
that the electrical wires and a water-pump on his property had been
damaged. And after Ms Mathoma informed him that
she had seen the
plaintiff near the electricity distribution box, he inferred that the
plaintiff was the person responsible for
the damage.
[16]
He testified that he went to the police because he believed that they
would help him with the eviction and he made
a statement to the
effect that he desired an investigation regarding the damage to his
property, for which he believed the plaintiff
was
responsible. The police, who went to the property, saw the damage,
and the statement they subsequently obtained from
Ms Mathoma
confirmed this.
[17]
The defendant was incorrect in his belief that the police could help
him evict the plaintiff from his property,
even though he appeared to
believe genuinely that the plaintiff was unlawfully refusing to move
from the property. This was a civil
dispute for which he should have
gone to court to obtain an eviction order, rather than solicit the
assistance of the police in
this cause. But this does not mean
that he had no honest belief in the truth of the allegations he made
against the plaintiff
regarding the trespassing and the damage to his
property.
[18]
Once he had placed the allegations before the police they ought to
have investigated the case properly before merely
arresting the
plaintiff as Captain Tshivhuyahuvhi incorrectly believed was his
duty. But the fact that the police acted hastily
and possibly
unlawfully in effecting the plaintiff’s arrest does not carry
with it the implication that the defendant instituted
the proceedings
without honestly believing that the allegations against the plaintiff
were true.
[19]
In the circumstances it cannot be said that the defendant had no
reasonable and probable cause for the prosecution
of the plaintiff,
much less that he was malicious in instituting the investigation
against him. In his mind he honestly believed
that he had a case for
trespassing against the plaintiff when the latter refused to vacate
his premises upon the termination of
the lease. And regarding the
case of malicious injury to property, he believed that the plaintiff
was responsible because, apart
from him, the plaintiff was the only
person who had keys for, and access to, the distribution box. And the
information conveyed
to him by Ms Mathoma, whilst only
circumstantial, confirmed his belief. In short, his belief was
founded upon an honest, though
probably mistaken, belief that the
plaintiff had damaged his property. The court a quo erred therefore
in holding that the plaintiff
had proved that his prosecution was
malicious.
[20]
The next aspect to consider is the order that was made by this court
on 10 March 2014 in terms of which the plaintiff’s
erstwhile
attorneys, Erwee Attorneys, were called upon to show cause why they
should not be ordered to pay de bonis propriis the
wasted costs
occasioned by the postponement of the matter caused by their alleged
failure to comply with rule 16(4) of the Uniform
Rules of Court. This
rule provides that where an attorney acting in any proceedings for a
party ceases so to act, he shall forthwith
deliver notice thereof to
such party, the registrar and all other parties. It now appears that
the plaintiff’s erstwhile
attorneys served and filed with the
registrar of Limpopo High Court, Thohoyandou a notice of withdrawal
as the plaintiff’s
attorneys of record on 31 May 2013,
presumably before the appeal was placed on roll on 10 March 2014. I
am therefore satisfied
that the plaintiff’s erstwhile attorneys
complied with Rule 16(4) of the Uniform Rules of Court. But this
finding does not
absolve the plaintiff from liability for the wasted
costs for the postponement.
[21]
Finally, the court wishes to extend its gratitude to Mr Nel and Mr
Mofokeng from Bloemfontein Justice Centre who
appeared on behalf of
the plaintiff following the withdrawal of his erstwhile attorneys.
[22]
In the result the following order is made:
1
The appeal is upheld with costs including the wasted costs occasioned
by the postponement
of the appeal on 10 March 2014;
2
The order of the court a quo, as it relates to the defendant, is set
aside and replaced
with the following order:
‘
The
plaintiff’s claim is dismissed with costs.’
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: M S Sikhwari
Instructed
by: Mathobo Rambau & Sigogo Inc, Thohoyandou
c/o
Matsepes Inc, Bloemfontein
For the
Respondent: P W Nel (with him L M A Mofokeng)
Instructed
by:
Legal Aid SA,
Bloemfontein Justice Centre
[1]
Relyant
Trading (Pty) Ltd v Shongwe & another
[2006] ZASCA 162
[2007] 1 All SA 375
(SCA) para 5.
[2]
Thompson
& another v Minister of Police & another
1971
(1) SA 371
(E) at 375.