About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2017
>>
[2017] ZAGPJHC 368
|
|
Kiviet v M and Others (1361/2012) [2017] ZAGPJHC 368 (8 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 1361/2012
Not
reportable
Not
of interest to other judges
Revised.
8
September 2017
In
the matter between
JOSEPH
KIVIET
PLAINTIFF
and
CONSTANCE
M.
FIRST
DEFENDANT
MONGEZI
M.
SECOND
DEFENDANT
MINISTER OF
POLICE
THIRD
DEFENDANT
NATIONAL PROSECUTING
AUTHORITY
FOURTH
DEFENDANT
Delict - Claim
for damages against the defendants arising from alleged unlawful
arrest, detention and malicious prosecution –
evidence adduced
analysed - plaintiff’s arrest and detention - legal principles
applicable restated - reasonable suspicion
requirement in
s 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
- Held: the plaintiff’s
arrest and detention not unlawful - arresting officer exercised his
discretion to arrest the plaintiff
for a purpose contemplated by law
- Malicious prosecution -acquittal of plaintiff – resulting
from uncertainties having arisen
upon the trial court’s
evaluation of the complainant’s version in court - acquittal
did not follow upon a state
case that was doomed to failure
right from the outset – absence of malice or animus injuriandi
- claims dismissed with costs.
JUDGMENT
VAN
OOSTEN J:
Introduction
[1]
In this action
the plaintiff claims
damages against the defendants arising from alleged unlawful arrest,
detention and malicious prosecution.
Background
[2]
It is common cause between the parties that the plaintiff was
arrested on 18 January 2010 at Klipspruit, Soweto, by Constable
Mathebula, who was and still is stationed at the Kliptown police
station, without a warrant for his arrest, on an alleged charge
of
rape. It is not in dispute that Cnst Mathebula was at all relevant
times acting within the course and scope of his employment
with the
third defendant. The plaintiff was detained at Kliptown police
station and charged with the rape of a 6 year old girl
(the
complainant). On 20 January 2010 the plaintiff, under the name
Vuyisile Joseph Kiviet, appeared in the Protea Regional Court
for the
first time. He applied for but was denied bail. The trial after
numerous postponements eventually commenced on 25 October
2010. The
plaintiff pleaded not guilty to the charge preferred against him
which was rape in contravention of
sec 3
read with other sections of
Act 32 of 2007. The State called the following 4 witnesses to
testify, the complainant (who testified
through an intermediary), her
mother Ms M., Ms Nhlangwini, a nurse at Baragwanath Hospital, who has
since passed away, and Dr Natvarjal,
a medical practitioner, who had
examined the complainant on 18 January 2010 at 23h00, in respect of
which a J88 medical examination
form was completed with the
conclusion ‘Wide gaping hymen is relevant with sexual
penetration’. The plaintiff, who
was legally represented,
testified in his own defence. On 22 November 2010, the plaintiff was
acquitted. By that time he had spent
306 days in prison. The
transcript of the proceedings in the criminal trial, including the
judgment of the Regional Magistrate,
is before me.
The
present action
[3]
The present action was instituted on 17 January 2012. The third and
fourth defendants raised a special plea based on the plaintiff’s
non-compliance with s 3 of Act 40 of 2002, but the plaintiff sought
and was granted condonation by this court for the late filing
of a
written notice in accordance with s 4(1) of the Act. The defence
raised by the third defendant in regard to the alleged unlawful
arrest is based on the provisions of s 40(1)(b) of the Criminal
Procedure Act 51 of 1955 (the CPA), which requires for an arrest
without a warrant to be lawful, that the arresting officer must hold
a reasonable suspicion that the plaintiff had committed the
crime
alleged.
[4]
The third defendant correctly assumed the duty to begin with the
leading of evidence in regard to the alleged unlawful arrest
and I
indicated to counsel that, for practical reasons, the duty would
encompass also leading evidence in respect of the alleged
malicious
prosecution.
[5]
During the course of the trial counsel for the plaintiff informed me
that the plaintiff’s case against the second defendant
was
withdrawn.
[6]
The defendants called four witnesses to testify: first, the first
defendant who is the mother of the complainant (Ms M.), second,
Cnst
Mathebula, the arresting police officer, third, Inspector November,
the investigating officer in the criminal case and lastly,
Mr Martin,
who acted as the prosecutor in the criminal trial. In response
thereto the plaintiff testified as well as his uncle,
Rueben Kiviet.
The
evidence on behalf of the defendants
[7]
The facts of this matter as related by Ms M., can be summarised as
follows. In September 2009 Ms M. became aware of urine incontinence
with the complainant which was confirmed in a report made to her by
the teachers of the Don Pre-school which her child attended
at the
time. She took her child to Dr Mutwadi without any significant result
and thereafter, on 18 January 2010, to the Pimville
Clinic for a
medical examination. At the clinic they were referred to the
Baragwanath Hospital. There the complainant was clinically
examined
and she thereafter received counselling by Anna Nhlangwini. Sister
Anna, as she was referred to in the evidence, informed
Ms M. and her
husband that the complainant had disclosed to her that she had been
raped by one Chimpie, which it is common cause
is one of the
plaintiff’s nicknames. Sister Anna then advised them to open a
case of rape against the plaintiff and they
proceeded home.
[8]
The plaintiff was referred to in the documents before me and in the
evidence by the name Vuyisile, as well as his nicknames
Chimpi or
Chimpanzi. The plaintiff was well-known to the M. family since 2003,
after they had moved to Pimville: the plaintiff
lived in the same
street and indeed became like their own child in the M. household in
being cared for and, he, in turn, assisting
them with various tasks
and household chores.
[9]
Having arrived home from the hospital Ms M. still in a state shock
finding it hard to come to terms with the news she had received,
eventually decided to confront the plaintiff with the facts and
forthwith started searching for him. He was not at home but she
eventually found him at a nearby house where he was washing a car.
She asked him what he had done to her child. The plaintiff responded
that he had done nothing to the child. She then proceeded to assault
him. She returned home, phoned the police and informed them
that the
plaintiff had raped her child.
[10]
The police arrived shortly thereafter while she was in the street (M.
street) and holding the complainant, who was crying,
in her arms.
Members of the community started gathering around them and they
became aggressive. The plaintiff approached them from
his house. Ms
M. pointed the complainant out to the police and added that the
complainant had been raped by the plaintiff. The
complainant in turn
also pointed to the plaintiff and accused him of having raped her.
The plaintiff was arrested and loaded into
the back of the police
van. Ms M. likewise proceeded to the police vehicle and took up the
front passenger seat whereafter they
all proceeded to the Kliptown
police station where the plaintiff was put into the cells.
[11]
Cnst Mathebula confirmed the evidence of Ms M. relating to the
arrival, presence and conduct of the police at the scene, on
all
material aspects. He together with a crew member, whose name he was
unable to recall, were on patrol duty in a police vehicle
in the
Pimville area, when they received a radio report concerning a rape.
Having been given the street name and house number in
Klipspruit,
they proceeded there.
[12]
Upon their arrival in Mosolodi street, they encountered a crowd of
people and they were directed to where Ms M. was standing,
holding
the complainant in her arms. Both Ms M., who appeared aggressive, and
the complainant pointed the plaintiff out as the
person who had raped
the complainant. The plaintiff was on the scene and he was ‘fully
convinced’ that the plaintiff
was the suspect. The plaintiff
confirmed that it was alleged that he had raped the complainant. He
explained the plaintiff’s
Constitutional rights to him and
arrested him. Because they feared for his safety the plaintiff was
locked into the back of the
police van and they, together with Ms M.,
who was sitting in the left front passenger seat, proceeded to the
Kliptown police station.
[13]
Inspector November testified concerning the investigation diary
forming part of the documents in the criminal case docket and
the
steps taken by him in complying with the instructions given to him as
the investigating officer, from the date the docket was
allocated to
him, on 19 January 2010, onwards. Lastly, Mr Martin related the
events from the time of having received the case docket
on the
morning of the trial. He studied the docket and consulted with the
state witnesses. He firmly held and throughout maintained
the view
that the State had a ‘solid’ case and proceeded with the
prosecution of the plaintiff, who, much to his dismay,
was eventually
acquitted.
The
plaintiff’s version
[14]
The plaintiff confirmed that on the day of his arrest Ms M.
confronted him in the yard at the house where he was washing a
car.
She was together with the second defendant, her son, who dragged him
out of the yard to the side of the street and started
beating him. He
continuously asked why he was beaten to which Ms M. eventually
responded in accusing him of having raped her daughter.
The plaintiff
was lying on the ground, jumped up and ran to the house of his uncle,
Rueben Kiviet. The front door was opened and
he went inside. Two
members of the SAPS arrived and they spoke to Rueben. Rueben called
the plaintiff to point out the house of
Ms M. to the police. He did
so and asked to sit in the back of the police van as he was afraid of
Ms M. assaulting him. The police
spoke to people outside the police
van and Ms M. arrived and sat in the front of the van. They then
departed to the police station
where he was put in the cells.
[15]
The last witness to testify was Rueben Mongezi Kiviet. He confirmed
the version of the plaintiff in regard to the plaintiff’s
arrival at his house and the plaintiff hiding in his house until the
police arrived. He observed blood on the plaintiff’s
face. The
police took the plaintiff away to point out the house of Ms M. and
advised the plaintiff that he was entitled to open
a case of assault.
He added that the allegation of the plaintiff having raped was made
by members of the crowd who had gathered
outside his house in the
yard.
The
plaintiff’s arrest and detention
The
legal principles applicable
[16]
It is trite that the deprivation of a person’s liberty, such as
arrest and detention at the hands of the police, is
prima facie
unlawful. In
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993(3) SA 131(A) 153D-E, the then Appellate Division (per Hoexter
JA) held:
‘
The
plain and fundamental rule is that every individual's person is
inviolable. In actions for damages for wrongful arrest or
imprisonment
our Courts have adopted the rule that such infractions
are
prima
facie
illegal.’
[17] In an action for wrongful arrest
and detention, a plaintiff only bears the onus of proving the arrest
and detention. Recently,
in
Relyant Trading (Pty) Ltd v Shongwe
and another
[2007] 1 All SA 375
(SCA) the Supreme Court of Appeal
(per Malan AJA) reiterated this position as follows (par 6):
‘
To
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself, or someone acting as his agent
or
employee deprived him of his liberty.’
[18] In
Minister of Justice v
Hofmeyr
(
supra
) the court further held ‘Once the
arrest or imprisonment has been admitted or proved it is for the
defendant to allege and
prove the existence of grounds in
justification of the infraction.’ This pronouncement was in
approval of the earlier decision
in
Minister of Law and Order and
others v Hurley and another
1986 (3) SA 568
(A) where the Court
(
per
Rabie CJ) stated as follows (589D-E):
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law.’
[19]
In
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H, Van Heerden JA explained that once the
jurisdictional requirements of s 40(1)(b) of the Criminal Procedure
Act 51
of 1977 (the CPA), are satisfied, the peace officer may, in
the exercise of his discretion, invoke the power to arrest permitted
by the law. However, the discretion conferred by s 40(1) of the CPA
must be properly exercised, that is, exercised in good faith,
rationally and not arbitrarily. If not, reliance on s 40(1) will not
avail the peace officer.
[20] The reasonable
suspicion requirement in s 40(1)(b) was dealt with by Jones J in
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) 685E-G where the learned judge stated that the test as to
whether an arresting officer held a reasonable suspicion is an
objective enquiry involving the question whether a reasonable person
in the position of the arresting officer and possessed of the
same
information would have considered that there were good and sufficient
grounds for suspecting that the person to be arrested
was guilty of
the Schedule 1 offence alleged. He also stressed that, in this
enquiry, it must be borne in mind that what is required
is suspicion,
not certainty, albeit that the suspicion must be based on solid
grounds (see also
Raduvha
v Minister of Safety and Security and Another
[2016] ZACC 24
para
[40] – [44]).
[21] While dealing with the legal
principles I consider it convenient at this stage, to refer to three
judgments heavily relied
upon by counsel for the plaintiff, who
submitted that they are on all fours with the present matter in
support of the argument
that the plaintiff was unlawfully arrested.
The facts those cases dealt with are clearly distinguishable from the
facts of the
present matter. I shall briefly refer to each judgment.
First, in
Stemar v Minister of Police and Another
(4789/2012)
[2014] ZAGPPHC 295 (16 May 2014) Matojane J, in regard to a claim
based on unlawful arrest without a warrant, found
for the plaintiff,
as the facts of the matter
and
the evidence adduced before
him, in particular in regard to the identity of the perpetrator, ‘do
not constitute very strong
circumstantial evidence, which would found
a reasonable suspicion that plaintiff raped the complainant’.
The learned judge
did not set out the reasons for the finding which
in my view, in any event, appears to me to be open to some doubt. The
second
judgment relied on is by Tuchten J, in
Matshego v Minister
of Police and Another
(Case no 68353/2013) (Gauteng, Pretoria, 19
October 2015) which clearly deals with an entirely different factual
matrix
. There the arresting officer in his evidence made no
mention that he held a suspicion at all but merely adopted the
approach that
he was under an obligation to arrest merely on the
basis of having been in possession of a written statement directly
implicating
the plaintiff in the crime of rape. The learned judge
held that absent a suspicion, the arrest cannot be justified under s
40(1)(b)
of the CPA. Thirdly, and lastly, I was referred to the
judgment of Pakati J, in
Booi v Minister of Safety and Security
(1402/08)
[2014] ZANCHC 1
(28 February 2014). In that case the
arrest on charges of murder and rape was effected solely on the
strength of the information
obtained from an informer which the
learned judge held was insufficient to found a reasonable suspicion
(see also my judgment on
similar facts, in
Ndevu v Minister of
Police
(GLD case no 34444/2011, delivered on 15 August 2016).
The
law applied to the facts
[22]
The plaintiff pleads that the arrest was unlawful and that he was
wrongfully and unlawfully detained, in regard to which the
following
allegations are pleaded:
‘
11.
The detention of the plaintiff from 18 January 2010 to 22 November
2010 was wrongful and unlawful in that:
11.1
Inspector November and/or other unknown policemen involved in the
purported investigation of the matter against the plaintiff:
11.1.1
knew, alternatively, ought to have known that no reasonable or
objective grounds or justification existed for either the
arrest of
the plaintiff or his subsequent and continued detention;
11.1.2
could have ascertained, by the taking of simple investigative steps,
that no such grounds or justification existed, but failed
to take any
such steps;
11.1.3
failed in his/her/their duty to inform the relevant public
prosecutor/s dealing with the matter that there were no
such grounds
or justification and indeed no objective facts reasonably linking the
plaintiff to the alleged crime of rape;
11.1.4
failed to take any steps whatsoever to ensure the plaintiff was
released from detention as soon as possible.’
[23]
The facts of this matter are dispositive of the pleaded allegations.
It is undisputed that Ms M. summoned the police and reported
to them
the rape of which she had been informed that very morning. I accept
the evidence of Ms M. that, as materially corroborated
by Cnst
Mathebula, the plaintiff, who was known to them and lived in the same
street, was pointed out at the scene as the perpetrator,
by both the
complainant and Ms M..
[24]
The plaintiff’s denial that he had raped the complainant is of
no moment. The plaintiff, in my view, was an unsatisfactory
witness
who clearly attempted in his evidence to steer clear from any facts
which may remotely implicate him in the commission
of the crime.
Counsel for the plaintiff contended that the arresting officers were
in duty bound to there and then conduct a further
investigation
before arresting the plaintiff. As referred to above, all that was
required is a reasonable suspicion based on solid
grounds, not
certainty. It cannot be expected of the arresting officer, as counsel
for the plaintiff would have it, to investigate
each and every
possible aspect relating to the crime before an arrest is made. On a
conspectus of all the prevailing circumstances
at the scene, the
arresting officer, I find was entitled to and did form a reasonable
suspicion sufficient to justify the arrest
of the plaintiff.
[25]
As regards the
continued detention of the plaintiff, this was a matter for the court
to decide. Insofar as this may be of any relevance,
I am satisfied
that Inspector November, upon being appointed the investigating
officer, was in possession of sufficient information,
consisting of
the statements of the complainant, Ms M., as well as the J88 medical
report, warranting the detention of the plaintiff
and further
investigation with a view of pursuing the prosecution of the
plaintiff. It is now settled that the purpose of the arrest
is to
bring the arrestee before the court, for the court to determine
whether the arrestee ought to be detained further, for example,
pending further investigations or trial (see
Minister
of Safety and Security v Sekhotho & Another
[2010]
ZASCA 141
;
2011 (5) SA 367
paras 30-31;
Minister
of Safety and Security and Another
2011
(5) SA 367
(SCA) para 42). The plaintiff’s arrest and detention
accordingly was not unlawful and the arresting officer, I hold,
exercised
his discretion to arrest the plaintiff for a purpose
contemplated by law.
Malicious
prosecution
[26]
The plaintiff’s case regarding this claim is pleaded as
follows:
‘
12. The prosecutor or
prosecutors, whose identities are unknown to the plaintiff, who had
control over the relevant police
docket and who dealt with the
plaintiff from time to time during his several court appearances
until he was released after his
acquittal on 22 November 2010:
12.1
Failed in his/her/their duty to acquaint himself/herself/themselves
with the contents of the relevant police investigation
docket from
which it would have been obvious that there were no reasonable
grounds or justification for the continued detention
of the
plaintiff;
12.2
failed in his/her/their duty to timeously withdraw the charge against
the plaintiff;
12.3
failed in her/her/their duty to inform any of the presiding
magistrates expeditiously that there were no objective facts
reasonably
linking the plaintiff to the alleged crime of rape;
12.4
failed in his/her/their duty to ascertain independently that no
reasonable grounds or justification existed for the continued
detention of the plaintiff;
12.5
failed to establish from the investigating officer of the case, all
facts which would justify further detention of the plaintiff;
12.6
failed to take any steps to ensure that the plaintiff was released
from detention as soon as possible.’
[27]
The sole issue in regard to the plaintiff’s claim based on
malicious prosecution is whether the requirement of malice
has been
proved. What has to be proved is this regard is
animus injuriandi
(see
Rudolph and Others v Minister of Safety and Security and
Others
2009 (5) SA 94
(SCA) para 18). In
Relyant Trading (Pty)
Ltd v Shongwe
[2007] 1 ALL SA 375
(SCA) para 14, the Supreme
Court of Appeal in regard to the requirement of absence of reasonable
and probable cause, held:
‘
[14] The requirement for
malicious arrest and prosecution that the arrest and prosecution be
instituted ‘in the absence of
reasonable and probable cause’
was explained in
Beckenstrater
v Rottcher and Theunissen
[1955
(1) SA 129
(A) 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 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.’
It follows 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. The requirement of reasonable and
probable cause is a sensible one: ‘For it is of importance to
the community that
persons who have reasonable and probable cause for
a prosecution should not be deterred from setting the criminal law in
motion
against those whom they believe to have committed offences,
even if in so doing they are actuated by indirect and improper
motives.’
[Footnotes
omitted]
[28]
In this case Mr Martin received and studied the case docket and
consulted with the state witnesses on the morning of the trial
commencing. All the information in the case docket is before this
court. Upon this court’s consideration thereof Mr Martin’s
view that the State indeed had a ‘solid’ case against the
plaintiff, cannot in any way be faulted. It is not a requirement
that
the State should have a perfect or irrefutable case as was in effect
contended for by counsel for the plaintiff. Nor is the
prosecutor
required to usurp the role of the Magistrate or Judge in deciding
whether reasonable and probable cause for continuing
with the
prosecution exists. Solid as a case may appear to be on paper and
even so after consultation with witnesses, it does not
guarantee a
conviction, as this case clearly shows. Aspects such as
cross-examination of witnesses are amongst the numerous unforeseen
variables that determine the outcome of a case. The acquittal of the
plaintiff followed upon uncertainties having arisen upon the
trial
court’s evaluation of the complainant’s version in court.
The acquittal did not as counsel for the plaintiff
sought to suggest,
follow upon a state case that was doomed to failure right from the
outset.
[29]
Nothing has been put before this court to show or even suggest malice
or
animus injuriandi
(
Minister for Justice and
Constitutional Development and Others v Moleko
(131/07)
[2008]
ZASCA 43
(31 March 2008);
[2008] 3 All SA 47
(SCA) para 61-64).
[30]
For these reasons I conclude that the plaintiff’s claims must
fail.
[31]
In the result the following order is made:
1.
The
plaintiff’s claims are dismissed.
2.
The
plaintiff shall pay the costs of the action.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
ADV JMV MALEMA
PLAINTIFF’S
ATTORNEYS
PADI INCORPORATED
COUNSEL
FOR 3
RD
& 4
TH
DEFENDANTS
ADV M GUMBI
3
rd
& 4
th
DEFENDANTS
ATTORNEYS
THE STATE ATTORNEY
DATES
OF HEARING
4, 5, 6 & 7 SEPTEMBER 2017
DATE
OF JUDGMENT
8 SEPTEMBER 2017