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[2018] ZAGPJHC 220
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Maphophe v Minister of Police and Another (8192/2016) [2018] ZAGPJHC 220 (31 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 8192/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
MAPHOPHE,
MANTSENA FRANCIS
Plaintiff
And
MINISTER
OF POLICE
1
st
Defendant
THE
NATIONAL PROSECUTING AUTHORITY
2
nd
Defendant
JUDGEMENT
SENYATSI
AJ
INTRODUCTION
1.
This is
a claim for wrongful arrest and malicious prosecution by the
first and the second defendants respectively.
2.
The claim
arises following a shooting incident on 21 August 2014 in
Johannesburg during which one Mogale Lesufi ("Lesufi") who,
subsequently, turned the gun on himself shot the Plaintiff's wife at
a point blank range.
3.
The Plaintiff
was arrested and charged with illegal possession of a
firearm and defeating the ends of justice.
FACTS
4.
The Plaintiff
and his wife were estranged as at 21 August 2014 and
lived in separate residences. On weekends, they would get together
and spend
time at the Plaintiff's residence. They were working for
the same employer, being Mutual and Federal Insurance Company.
5.
On the 21 August 2014, the Plaintiff and his wife left work after
17h00 together to her residence in order to go and fetch her car,
a
Ford Fiesta. The vehicle was parked in the basement parking of her
residence. Upon arrival at the basement parking, both of them
climbed
into the vehicle, the Plaintiff in the driver's seat and his wife in
the passenger seat.
6.
As the Plaintiff was about to reverse the car, he had a knock on the
glass of the left front passenger door. He looked to his left
and
recognised the person known to him as Lesufi who was also their
colleague at Mutual and Federal Insurance Company. His wife
climbed
out of the vehicle, closed the door and engaged in a conversation
with Lesufi. It appeared that his wife was not happy
and he observed
that due to the manner they were both talking to each other.
7.
Lesufi
had a plastic bag with him. Lesufi reached the inside of the
bag and took out a red t-shirt. He unwrapped t-shirt and took out a
firearm. He then pointed the gun at his wife's head, pulled the
trigger and shot her point- blank where after he turned the gun
on
himself. They both fell.
8.
After
his wife was shot, frightened as he was, the Plaintiff climbed
out of the car, ran around and tried to look for help. The first
help
that he tried to engage was a motor car coming into the basement, but
the occupants thereof ignored him and drove away. He
ran to the top
of the basement and called 911. The operator explained to him that an
ambulance and the police would be dispatched
to the scene of the
shooting.
9.
He went back
to the basement to check on his wife and saw that she
was still alive. He wanted to put her inside the vehicle to take her
to the
top of the basement to be in a position to assist the
ambulance staff to get his wife to hospital as soon as possible.
10.
Before doing so, he took the gun from
Lesufi, as he did not know
whether Lesufi was still alive or not. He was afraid that should
Lesufi still be alive, he could wake
up and maybe shoot at him or his
wife.
11.
He took hold of the gun by using
the red t-shirt, wrapped the gun in
the t-shirt again, and placed it·in the back of the Fort
Fiesta in the rear passenger
part. He then put his wif·e
inside the car and proceeded to the top of the basement to wait for
the ambulance and the South
African Police Services ("SAPS").
12.
Upon arrival of the ambulance
and the SAPS, his wife was attended to
whilst he was kept away from the scene. He explained to the police
officers Mabunda and
Manganyi, who attended to the scene, as to what
happened. He explained that he was not the shooter and the
circumstances under
which the shooting incident happened. He also
pointed out the gun to them in the car where after the police took
possession thereof.
13.
He then took them down to the
basement and showed them the deceased.
An investigating officer who had arrived at the scene was once again
explained the full
circumstances as highlighted above then
accompanied him.
14.
His wife was taken to the hospital.
but he was not allowed to
accompany her, as the investigation had to be finalized on the scene.
His hands were swiped to test for
gunshot residue. Police then
escorted him to the hospital. On the way to hospital, the plaintiff
was in the police car and a second
police official drove in the Ford
Fiesta.
15.
At the hospital, the police managed
to interview his wife who was
fully awake. She corroborated the Plaintiff's evidence. This evidence
was also not contested by the
Defendants in cross-examination.
16.
The police took down a statement
from the Plaintiff being Exhibit 26
("A2") of the police case docket on the 21 August 2014 and
were in possession of
all facts contained therein at that time.
17.
After the police, officials had
visited the hospital and confirmed
the facts surrounding the shooting they left the Plaintiff with his
wife. The Plaintiff returned
home that night leaving his wife in
hospital for further treatment.
18.
The Plaintiff was phoned by a
police official on 24 August 2014 and
asked to present himself at the Johannesburg Central Police Station
the following morning.
On 25 August 2014, the Plaintiff presented
himself as agreed to the Police Station prior fo going to work.
19.
Upon arrival at the police
station, he was subjected to further
interrogation by the investigating officer; Mr Selate ("Selate").
A second statement
was demanded from him in the form of a warning
statement. He was then arrested for the crime of possession of an
illegal firearm
and defeating the ends of justice.
20.
At the time of effecting arrest,
Selate relied only on the affidavit
of the Plaintiff. The affidavits of the two fellow police officers
who went to the scene of
the shooting were only commissioned on the
26 August 2014. Before the arrest, Selate had obtained information
from the police officers
at the scene through their statements that
the Plaintiff had come into possession of the firearm by taking the
firearm from the
deceased.
21.
Selate did not know the requirements
for arrest under the Firearms
Control Act or defeating the ends of justice. He does not know the
difference between defeating the
ends of justice and obstructing the
ends of justice. This was clearly demonstrated during
cross-examination.
22.
Selate is of the view that when a person
disarms another who is
endangering the lives of third parties that it would constitute an
offence, which would justify an arrest,
and that such person is in
unlawful possession of a firearm.
23.
The arrest was effected on the 25th
August 2014 . There is
contradiction in this regard in that Selate alleges that the arrest
only took place on 25th August 2014
and that the Plaintiff did no
spend any time in prison prior to his appearance in Court. The
evidence of the Plaintiff was not
challenged under cross-examination
that the arrest took place on 25th August 2014. Selate's version that
the arrest was effected
on 26th August 2014 was never put to the
Plaintiff during his evidence in cross-examination. It is therefore
accepted by this Court
that the arrest was effected on 25th August
2014
24.
After his arrest, the Plaintiff
was placed in a holding cell and
taken to Court on 26 August 2014. Before his appearance in Court, the
Case docket was given to
the Chief Control Prosecutor, Mr Masimula
("Masimula") at the Johannesburg Regional Court who was
called as a second
witness for the Defendants.
25.
At the time when he took
a decision on behalf of the Second Defendant
to prosecute the Plaintiff on the crimes in the case docket, Masimula
had before him
the affidavit of the Plaintiff and the affidavits of
the three police officials, being Exhibits 5-11 and 12-27. From these
statements,
it is clear that no offence had been committed as the
facts highlighted by the Plaintiff are corroborated in all other
affidavits
by the police officers. Objectively considered, it is
clear that the affidavits do not show the committal of any offence as
contemplated
in the Firearms Control Act or defeating the ends of
justice.
26.
Selate argued that he was in possession
of evidence objectively
suggesting the commitment of a crime by the Plaintiff. The basis of
his conclusion on behalf of the Defendants
was that it would not be
possible for a person who had turned the gun on himself to be alive.
He concluded that the Plaintiff should
therefore have known that the
assailant was dead and therefore had no reason to fear for his live
and remove the firearm. No objective
evidence was adduced suggesting
that the Lesufi was dead at the time when the Plaintiff removed the
firearm from him.
27.
The Plaintiff appeared in Court
on 26 August 2014 and the case was
remanded to 5 September 2014. He was remanded in custody and was
given bail on 5 September 2014.
The case was remanded to 15 October
2014 and thereafter to 27 October 2014 when all charges were
withdrawn against the Plaintiff
and a
no/le prosequi
certificate
was issued on the basis that there were no reasonable prospect of
successful prosecution.
28.
In his plea, First Defendant
pleaded that the Plaintiff was arrested
without a warrant in accordance with the provisions of
section
40(1)
(6) of the
Criminal Procedure Act 51 of 1977
based on
Selate's reasonable suspicion that the Plaintiff had committed an
offence contemplated in Schedule 1 of the Act relating
to unlawful
possession of firearm defeating the ends of justice.
29.
The Second Defendant pleaded
that the decision to institute the
criminal charges was based on the statements contained in the docket
and that the institution
of such proceedings was
prima
facie
lawful.
30.
As already stated, the First
Defendant called Selate to testify on
its behalf Selate investigated whether the Plaintiff had a firearm
licence or not. He conducted
the search by checking the Central
Firearm Register using the Plaintiff's identity number for possible
firearm licence.
31.
The outcome of the investigation confirmed
that the Plaintiff did not
have a licence to possess a firearm. It was on that basis that when
the Plaintiff came to the police
station, he was arrested and charged
as herein before stated.
32.
Masimula testified that he is
the Regional Court Control Prosecutor
responsible for taking decisions on whether to institute proceedings
or not. He was given
the case docket and considered the statements
therein. He arrived at a conclusion that the Plaintiff had charges to
answer. He
was cross-examined on whether under the circumstances he
thought the Plaintiff intended to possess the firearm for his
benefit.
It was also put to him during cross-examination that if the
cross-examiner were to disarm the witness who was shooting at a
crowd,
would the cross-examiner then be in illegal possession of the
firearm to which Masimula answered in the affirmative.
ISSUES
FOR DETERMINATION
33.
The issues for determination
can be summarised as follows:-
33.1.
Whether the arrest and detention of the Plaintiff were justified;
33.2.
Whether the institution of criminal proceedings by the Second
Defendant was prima facie lawful.
LEGAL
PRINCIPLES
34.
In order to succeed with a claim
for unlawful arrest and detention
the Plaintiff must prove wrongfulness and
animus iniuriandi
against the First Defendant.
35.
Concerning
wrongfulness, it is trite law that an arrest or detention is
prima
facie
wrongful
and unlawful. It is not necessary therefore to allege or prove
wrongfulness or unlawfulness. It is for the first defendant
to allege
and prove the lawfulness of the arrest and detention.
[1]
36.
In
the instant matter, the onus is on the First Defendant to prove that
the arrest was a result of the commission of a crime in
the presence
of the peace officer.
[2]
37.
Section 40(1)
(b) of the
Criminal Procedure Act 51 of 1977
provides that, "a
peace officer may without
a
warrant
arrest any person whom he reasonably suspects of having committed an
offence referred to in Schedule 1
". Counsel for the First
and Second Defendants, Mr Gxogxa, submitted that the First Defendant
relied on this section to effect
the arrest. For reasons that will be
provided later, I do not find any factual support for reliance on the
section to justify the
arrest of the Plaintiff.
38.
It
is trite law that personal liberty weighs heavily with our courts. A
balance has to be found between the right to individual
liberty on
the one hand, and the avoidance of unnecessary restriction of the
authority of the police in the exercise of their duties
on the other
hand.
[3]
39.
In
Minister
of Safety and Security v Glisson
[4]
it
was held that when the factors are taken into an account to effect a
balancing act, the scales in a democratic constitutional
society
would fall on the side of individual liberty.
40.
In
determining whether the police officer had reasonable grounds to
suspect that a suspect has committed on offence, Jones J held
as
follows in
Mabona
and Other v Minister of Law and Order
[5]
.
:-
"Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there
were sufficient
grounds for suspecting that the plaintiffs were guilty of conspiracy
to commit robbery or possession of stolen
property knowing it to have
been stolen? It seems to me that in evaluating this information a
reasonable man would be in mind that
the section authorises drastic
police action. It authorises an arrest on the strength of a suspicion
and without the need to swear
out a warrant, i.e. something which
otherwise would be an invasion of private rights and personal
liberty. 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 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 on solid grounds.
Otherwise, it will be flighty or arbitrary, and not a reasonable
suspicion."
41.
The
suspicion must be realistic and well founded, having regard to the
circumstances of the particular case.
[6]
42.
Having regard to the circumstances
of this case, I am not persuaded
that Selate had reasonable suspicion that an offence had been
committed.
The
Plaintiff did not hide the firearm. He told Mabunda and Manganyi, the
two police officers upon their arrival at the scene of
the shooting,
that he had removed the firearm from the deceased. He explained fully
the genuine fear for his life and the life
of his wife who had just
been shot on the head point blank. He pointed out the firearm to the
two police officers. After they had
verified the statement by the
Plaintiff from his wife at hospital, the two officers were satisfied
that no offence had been committed.
This is the reason they did not
arrest the Plaintiff. In my view, there was a reasonable explanation
as to why the Plaintiff took
possession of the firearm. Any
reasonable police officer would not decide to arrest the Plaintiff
under those circumstances let
alone charge him.
43.
I find the explanation by Selate that
the removal of the firearm from
the deceased amounted to illegal possession of a firearm and
defeating the ends of justice to be
unreasonable and without legal
and factual basis. He was therefore not protected by
Section 40(1)(b)
of the
Criminal Procedure Act of 1977
. In my view, he abused his
authority and failed to realize the difficult circumstance the
Plaintiff found himself. The traumatic
experience of observing his
wife been shot.
44.
The fact
that the Plaintiff did not have a firearm licence was
irrelevant because even if he had one, that licence would not have
been for
the firearm used in the shooting. The inquiry into whether
or not the Plaintiff had a firearm licence had no bearing whatsoever
to the decision to charge the Plaintiff. To charge a man with the
crimes Selate did, whilst his wife was lying in hospital due
to
injuries sustained by her shooting by the deceased, defies logic and
the inescapable conclusion is that the arrest was wrongful.
45.
One of the requirements for success
in the claim of wrongful arrest
is an intention to injure or an awareness of unlawfulness. The
decision to arrest the Plaintiff
was taken by Selate the day he
received the case docket.
46.
In
dealing with the intention to injure as a requirement, Hoexter JA
made the following remark in
Minister
of Justice v Hofmeyr
[7]
:-
"The
possibility that in the case of certain forms of injuries involving
wrongful constraints on personal liberty the wrongdoer's
legal
liability might exist even in the absence of his appreciation of the
wrongful nature of his injurious act has been explicitly
recognised
by this Court. In
Ramsay v Minister van Polisie en Andere 1981(4)
SA 802(A)
Botha AJA (with whom the remaining members of the Court
concurred) agreed with the order appearing at the end of the
judgement of
Jansen JA but was at pains to dissociate himself from
certain observations in regard to
aminus injuriandi
in the
judgement of Jansen JA At 818E-H Botha AJA said the following:
'Hy
aanvaar, na aanleiding van die posissie by laster, dat
aminus
injuriandi,
wat onregmatigheid bewussyn verg; in die algemeen 'n
element is van alle inbreuke op die personlikheid wat injuria gemerk
word.
Ek aanvaar dit nie. Ek laat die moonlikheid oop dat daar a
bepaalde vorme van injuria die eise van regsbeleid aanspreeklikheid
kan bestaan in die afwesigheid kan onregmatigheid bewyssyn by die
dader. In die waarheid word my benadering onderskraag deur die
huidige stand van die regspraak. Dit val nie te betwyfel nie dat daar
in die regspraak, veral in die Transvaal, oar in tydperk
van jare met
betrekking to sekere vorms van
injuria
'n stand punt
ingeburger is wat beteken dat by sek re
injuria
onregmatigheids
bewassyn by die dader geen voorvereiste vir annspreeklikheid is nie.
besonderhede in te gaan nie.' Ek hoef nie daaroor
op
47.
It
is also trite law that an honest belief in the legality of the arrest
or detention is also no defence.
[8]
Since no submission has been made for the First Defendant that Selate
had honestly believed that the Plaintiff had committed an
offence, I
will not make any determination safe to say that the First Defendant
would in all probabilities not have been able to
persuade this Court
had that argument been brought forward.
48.
As
regards the malicious prosecution by the Second Defendant, in order
to succeed with the claim of malicious prosecution , a claimant
must allege and prove that:-
[9]
a)
the Defendant set the law
in motion (instigated
or instituted the proceedings);
b)
the Defendant acted with reasonable and probable cause;
c)
the Defendant acted with malice or
(animus injuriand t) ;
and
d)
the prosecution has failed.
49.
It
is common cause that the decision to prosecute was taken by Masimula,
as a Regional Control Prosecutor for the Second Defendant.
It is also
common cause that the prosecution was not persisted with and that a
no/le
prosequi
certificate
was issued on 27 October 2014 stating that there was no reasonable
prospect of success where after all charges were
withdrawn.
50.
In
Waterhouse
v Shield
[10]
Gardiner J defined the reasonable and probable cause as follows:-
"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 existence of the state of circumstances,
which, assuming them to be true, would reasonably
lead to an ordinary
prudent and cautious men, placed in the position of the accused, to
the conclusion that the person charged
was probably guilty of the
crime imputed."
51.
Reasonable and probable
cause in the context of a claim for malicious
prosecution, means an honest belief founded on reasonable grounds
that the institution
of proceedings is justified. The context
involves both a subjective and an objective element.
52.
Not
only must the Defendant have subjectively had an honest belief in the
guilt of the Plaintiff, but also his belief and conduct
must have
been objectively reasonable, as would have been exercised by a person
using ordinary care and prudence.
[11]
53.
In the instant case, the Plaintiff
was charged with two crimes of
illegal possession of firearm and defeating the ends of justice. In
all the charges, the intention
by the Plaintiff ought to have been
considered on the face of the sworn statements by the police officers
at the scene and the
Plaintiff. In light of the fact that the
Plaintiff had clearly explained the reasons for the removal of the
firearm from the deceased
and disclosed that information to the two
police officers who attend the scene of shooting and pointed out the
firearm to them
clearly, he could not have intended to unlawfully
possess the firearm. He did not remove the firearm from the deceased
Lesufi to
keep it for himself. He removed it with the intention of
ensuring his personal safety and that of his wife who had just been
shot.
That ought to have been clear to Masimula if he had properly
applied his mind to the statements in the docket before him.
54.
The offence of defeating the
ends of justice presumes that had the
Plaintiff not moved the firearm from the deceased, the Second
Defendant would have charged
him with crime. The question is what
crime the Plaintiff would have been charged for and convicted. The
answer is clearly no charge
would have been preferred against the
Plaintiff. Therefore, the charge of defeating the ends of justice had
no probable cause to
be preferred against the Plaintiff.
55.
When Masimula testified
on behalf of the Second Defendant and his
failed dismally to explain to this Court how he came to charge the
Plaintiff with the
two charges. He simply stated in his evidence that
when he read the statements, and was satisfied that a
prima facie
case had been made for charges to be pressed. Masimula was
evasive and rude to counsel for the Plaintiff. He refused to answer
some
of the questions put to him and had to be reminded that he was
not only a witness but also an officer of this Court who ought to
know better, what is expected of a witness. He clearly overplayed his
role as a Regional Control Prosecutor as he made a comment
that in
his view "law is law" and that is why decided to charge the
Plaintiff with the offences that form the subject
of this action.
56.
It became clear during Masimula's evidence
that he did not apply
himself properly to the statements contained in the case docket in
front of him. He offered no reasonable
explanation for his decision
to prosecute. Absent of such explanation, I am left with no option
but to find that his decision was
done with the intention to injure
the Plaintiff.
57.
If Masimula had applied his mind reasonably
to the statements before
him in the case docket, he would have been aware that the Plaintiffs
wife was in hospital being treated
for gunshot injuries to her head.
He would have become alive to the fact that the Plaintiff removed the
gun from the deceased in
an honest belief that the deceased may wake
up and shoot him or his wife. Masimula would have realised that there
was no intention
feeom the Plaintiff to appropriate the firearm for
himself and that the proposed charges were factually and legally
without merit.
58.
I have considered in full the
circumstances of this case and I am
satisfied the Plaintiff has made out a case against the First and
Second Defendants.
59.
I now consider the quantum of
damages suffered by Plaintiff.
60.
It is clear to me that Masimula's
decision to prosecute was based on
the discussion he had with Selate. Both of them failed to appreciate
the statements by the Plaintiff
and the two police officers who
attended the scene of the shooting. They were both insensitive to
the fact that the Plaintiffs
wife was lying in hospital fighting for
her live and needing the support of the Plaintiff.
61.
In the instant case, I am satisfied
that the Plaintiff has clearly
proven
animus injunandi
on the part of both Defendants.
62.
The award of dames is a matter of discretion
by this Court. In
awarding the damages, I have considered the time spent in custody and
the fact that the Plaintiff was denied
his personal right not to be
subjected to unlawful arrest and denied freedom of liberty. I am
alive to the fact that the damages
award will be paid out of the
State coffer. Consequently, the quantum on the award, which I
consider to make, is what I deem to
be appropriate in the
circumstances of the instant case.
ORDER
63.
In the circumstances, the following order is made:
a)
Judgment is entered in favour of the Plaintiff for R180 000 against
both Defendants
jointly and severally, the one paying the other to be
absolved.
b)
Interest on the aforesaid amount at the rate of 9% per annum
calculated from
the date of judgement to date of payment.
c)
Costs of suit on a party and party scale.
M
L SENYATSI AJ
ACTING
JU GE OF THE HIGH COURT
FOR
PLAINTIFF:
Mr. B BOOT
INSTRUCTED
BY
ADAMS
& ADAMS, PRETORIA
FOR
FIRST & SECOND
Mr. A GXOGXA
DEFENDANTS:
STATE ATI ORNEY, PRETORIA
[1]
See Brand v Minister of Justice 1959(4) SA 712 (A) at 714; Minister
of Law and Order v Hirley
1986 (3) SA 568
(A) at 587-10 589;
Minister of Law and Order v Matshaba 1990 (1) SA 280 (A).
[2]
See R v Henkins 1954(3) SA 560(c); R v Folkus 1954(3) SA 442 (SWA);
Tsose v Minister of Justice and Others 1951(3) SA 10 (A)
at 18.
[3]
See Olivier v Minister of Safety and Security and Another 2009(3) SA
434(WLD)
[4]
2007(3) SA 78(E)
[5]
1988 (2) SA (E) 654
at 658E.
[6]
See Mabona and Another v Minister of Law and Order
supra.
[7]
1993(3) SA 131("A") AT 154j-155a.
[8]
Tsose v Minister of Justice 1951(3) SA 10(A) AT 18; Ramsay v
Minister of Police 1981(4) SA 802(A) at 818.
[9]
See Minister of Justice Constitutional Development v Moleko 2008(3)
ALL SAR47SCA
[10]
1924 CPD 155
at 162
[11]
See LAWSA par 449