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[2020] ZAGPJHC 16
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Mahlaba and Another v Minister of Police and Another (12876/2018) [2020] ZAGPJHC 16 (31 January 2020)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 12876/2018
In the matter
of:
GABA
MANDLENKOSI MAHLABA
First
Plaintiff
VUSIMUZI
DERRICK MBULI
Second
Plaintiff
and
MINISTER OF
POLICE
First
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Defendant
JUDGMENT
BESTER
AJ
[1]
The plaintiffs sued the
first defendant for damages flowing from an alleged unlawful arrest
and subsequent unlawful detention, and
the first and second
defendants, jointly and severally, for damages flowing from alleged
malicious prosecution.
[2]
On 10 July 2016 the
plaintiffs were arrested by members of the South African Police
Services (“the SAPS”) without a
warrant.  They
remained in custody after their first court appearance until they
were granted bail, on 26 August 2016 and
22 August 2016
respectively.
[3]
The plaintiffs were
charged with robbery with aggravating circumstances, but on 4 August
2017 they were both found not guilty and
discharged in terms of
section 174 of the Criminal Procedure Act, Act 51 of 1977 (“the
CPA”).
[4]
The
first defendant bears the onus to show that the arrest was lawful.
It pleaded that the arrests were lawful in that they
were made in
compliance with section 40(1)(b), alternatively section 40(1)(e), of
the CPA.  The plaintiffs bore the onus on
the balance of the
issues.  Despite the provisions of rule 39(13)
[1]
,
the parties agreed that the defendants would present their evidence
first.
The
defendants’ evidence
[5]
Sergeant Seipone
Archibold Thutlwa testified that he is, and in July 2016 was,
employed as a member of the SAPS at the Soweto Flying
Squad (the
Police Emergency Services) in Protea, Soweto.  He was one of the
two arresting officers.  The other arresting
officer, Constable
Thoja George Motumo, has passed away since the arrest.
[6]
Sergeant Thutlwa
testified that he and Constable Motumo were patrolling the area of
White City, Jabavu, Soweto on Sunday, 10 July
2016, in a marked
police vehicle.  They received a telephone call from the SAPS
Crime Intelligence Unit (“Crime Intelligence”)
around
17:45, advising them that information had been received that two
African males were in the process of stripping a stolen
motor vehicle
at a property situated at 763A Mlangeni Street, White City.
They were patrolling nearby at the time and they
reached the property
within a few minutes.
[7]
Upon their arrival,
Constable Motumo entered the property through a gate, ahead of
Sergeant Thutlwa, and ran around the building,
out of Sergeant
Thutlwa’s sight.  He heard Constable Motumo shout ‘stop!’.
Immediately thereafter an African
male came running from where
Constable Motumo had disappeared, and Sergeant Thutlwa arrested him
as he tried to exit the property
at the gate.  Another African
male ran in the direction of an outside toilet on the premises, but
he was arrested by Constable
Motumo.  Once they had handcuffed
the two plaintiffs, they reported the arrest.
[8]
At the back of the house
on the property was a partly disassembled red Isuzu KB 250 bakkie.
The arresting officers made enquiries
as to the status of the motor
vehicle from Crime Intelligence.  They were informed that the
vehicle had been reported stolen
four days earlier, and that a case
docket had been registered at Lenasia Police Station.  Sergeant
Thutlwa testified that
he had not seen the plaintiffs at or near the
motor vehicle parts, but he was told by Constable Motumo, immediately
upon the arrest
of the two plaintiffs, that he had seen the two
plaintiffs busy stripping the motor vehicle when he came around the
building. This
was also the evidence of Constable Motumo in his
affidavit contained in the docket.
[9]
The plaintiffs did not
offer any explanation for their attempt to run away, or for the
presence of the motor vehicle parts on the
property.  The first
plaintiff told Sergeant Thutlwa that he resided at the property.
There was nobody else at the property
at the time.
[10]
The plaintiffs were
arrested on suspicion of being in possession of a stolen vehicle, on
the basis that Constable Motumo saw them
stripping the motor
vehicle.  They did not have time to obtain a warrant, because
they had to act immediately upon the information
received from Crime
Intelligence.  Sergeant Thutlwa was of the view that the
opportunity to catch the plaintiffs in the act
of stripping the
vehicle would have been lost if they had tried to obtain a warrant
first.
[11]
After more police
officers and a breakdown recovery vehicle were called to the
property, in order to procure the removal and storage
of the motor
vehicle, Sergeant Thutlwa and Constable Motumo took the plaintiffs to
Moroka Police Station.
[12]
On the way to the police
station sergeant Thutlwa asked who the owner of the vehicle is.
The first plaintiff told him that
the vehicle was brought to the
property by “boys from Zola”. At Moroka Police Station
the plaintiffs were processed
and detained.
[13]
Sergeant Martin Johnson
Molokwane testified that he was the initial investigating officer of
the case against the plaintiffs.
At the time he held the rank
of constable and was stationed at Moroka Police Station.  He was
no longer the investigating
officer by the time that the case went to
trial.
[14]
Sergeant Molokwane
testified that he received the docket on Monday, 11 July 2016, that
is, the day after the arrest.  He interviewed
the plaintiffs,
then completed and had them sign Statements Regarding Interview with
Suspect.  It seems that the two plaintiffs
signed one another’s
statement.
[15]
The plaintiffs refused to
provide an explanation for having been at the premises with the
stolen vehicle, and told Sergeant Molokwane
that they will provide
their explanations to a court.  This is also what was recorded
in the statements regarding his interviews
of the plaintiffs.
[16]
Sergeant Molokwane
obtained details of the case regarding the stolen vehicle, and
learned that the docket, at Lenasia Police Station,
was one for armed
robbery with aggravating circumstances, a firearm having been used in
the robbery of the vehicle.  He obtained
the details of the
docket, contacted the complainant and accompanied him to the police
pound, where the complainant identified
the parts as being from his
stolen vehicle.
[17]
Later that day the
plaintiffs also agreed to have DNA samples taken, although this was
not done by Sergeant Molokwane.
[18]
The next morning, on
Tuesday, 12 July 2016, Sergeant Molokwane took the plaintiffs to
court, where he handed over the docket to
the prosecutor.
[19]
It appears from the
investigation diary that the investigation was a meagre exercise.
Sergeant Molokwane’s primary focus was
on obtaining details of
possible previous offences committed by the plaintiffs, in order to
consider whether they should be granted
bail.  These records
only became available by 22 August 2016.  Sergeant Molokwane was
unable to explain why this took
more than a month.  This seems
to be the only reason why the plaintiffs were continuously remanded
without bail.
[20]
There being no record of
pending cases against or previous convictions of the second
plaintiff, he was released on R4 000,00
bail on 22 August 2016.
However, there was a pending case against the first plaintiff for
robbery of a motor vehicle. His
bail application was postponed to 26
August 2017, when Sergeant Molokwane informed the prosecutor that the
pending case had been
withdrawn, and the first plaintiff was also
released on R4 000,00 bail.
[21]
Apart from the attempt to
obtain records of previous convictions and pending cases against the
plaintiffs, the only other effort
to move the investigation forward
evident from the investigation diary, was the prosecutor’s
requests that an identification
parade be held.  However, as was
evident from his statement in the docket, the complainant was adamant
that he was unable
to identify his assailants.  As a result, no
identification parade was held.
[22]
When prompted, Sergeant
Molokwane testified that he had not visited the scene of the robbery
or the property where the stolen vehicle
was recovered.  He also
did not attempt to obtain fingerprints from the motor vehicle parts,
and none were taken at the time
when the vehicle was impounded.
[23]
The defendants’
third witness was the prosecutor, Mr Themba Trevor Tshabalala.
He testified that he had been preceded
by other prosecutors in the
matter, and that he only started dealing with the case once it had
been enrolled for trial. Mr Tshabalala
did not decide whether the
plaintiffs should be prosecuted.  This was the duty of the
senior prosecutor who, he testified,
had to do so at hand of the
contents of the docket.
[24]
It was decided that the
case was prosecutable, on the basis that the plaintiffs were found in
possession of the motor vehicle four
days after the complainant had
been robbed at gun point.
The
first plaintiff’s evidence
[25]
The first plaintiff
testified that, at the time of his arrest, he resided in Lawley, at
his girlfriend’s parental home.
No one was occupying the
house at 763A Mlangeni Street, which was his parental home.
However, two tenants resided in the
yard in two shacks.  They
were both single males.  The one was a motor mechanic by the
name of Carlos, and the other,
whose name he could not recall,
repaired computers.
[26]
On Sunday, 10 July 2016,
he went to his parental home in the late afternoon to check on the
property and the tenants, as was his
habit.  Upon his arrival,
he found vehicle parts strewn over the back yard of the property.
This surprised him, because
there is insufficient space there to work
on a motor vehicle.
[27]
At that time, the second
plaintiff, a friend with whom he grew up on that same street, arrived
at the property.  The second
plaintiff knocked at the shack
occupied by the man who repaired computers, but there was no answer.
The second plaintiff
left, and the first plaintiff went to the
outside toilet.  Afterwards, on his way to a tap to wash his
hands, the first plaintff
heard that the second plaintiff was talking
to people, and he then saw the second plaintiff with a male and a
female police officer.
The male officer told him not to run
away, and then handcuffed both of them.  The officers made a
call to enquire about the
vehicle parts, and then told the plaintiffs
that the parts belonged to a motor vehicle that had been stolen a few
days earlier.
The police officers did not search the house or
the shacks, and they did not ask the plaintiffs any questions.
[28]
After they had been
arrested, two more police officers arrived on the scene.
Sergeant Thutlwa was one of the new arrivals.
The first plaintiff
testified that he overheard the arresting officers telling the
newcomers that they were about to ‘knock
off’ and that
they were handing the plaintiffs over to the newly arrived officers.
The plaintiffs were asked whether they
wanted to go to the police
station before a vehicle arrived to pick up the parts, but they told
the officers that they did not
know the law and did not know whether
they should do so.
[29]
The plaintiffs thought it
was best to keep quiet as to who the vehicle might belong to, because
whatever they told the police officers
made the officers angry.
[30]
The second crew of
officers took the plaintiffs to a police station before the the motor
vehicle parts were removed from the property.
However, first
the police officers forced them to move all the motor vehicle parts
to the gate.  On arrival at the police
station, they were locked
up in a cell, and the police officers told them that they can give
their explanations to the court.
Later he said that the
officers asked them what they were doing at the property, and they
said that they were not doing anything.
[31]
When asked whether there
was any reason not to tell the police that the car may belong to
Carlos, he responded that the plaintiffs
were not given a chance to
talk to the police officers; at another point he said the reason was
that he had not been sure that
Carlos brought the vehicle to the
property.  It ‘came to his mind’ that, because
Carlos was a mechanic, he may
know why this vehicle was at the
premises.
[32]
Upon being asked during
cross-examination whether he told the police that the vehicle could
belong to Carlos, he answered in the
affirmative, stating that he did
so after they were arrested.  He then reconsidered and said that
he did not tell the police
officers but that he told his lawyer.
It was unclear whether this was a reference to the lawyer who
represented him in the
criminal trial, or in these proceedings.
[33]
Also during
cross-examination, the first plaintiff offered that when the second
crew of police officers arrived, he told them that
there was a
mechanic living at the property and “a computer man”.
However, he says he could not say to whom the
motor vehicle belong,
it could have been either of them.
[34]
When asked why he had
provided his home address as the Mlangeni address, whilst he was
residing in Lawley, the plaintiff said that
he informed the police
officers that he was residing in Lawley.  When he pointed out
that the Mlangeni street address was
recorded as his residential
address, he stated that he would always provide that address as his
residential address, even when
he opens a bank account, because he
did not regard the Lawley address as his home.
[35]
The first plaintiff
testified that three police officers arrived to take their
fingerprints, take photographs and otherwise process
them.  No
one identified themselves as the investigating officer, and he does
not recall that he was given a warning statement.
The officers
told them that whatever they wanted to say, they should say in court.
[36]
He denied that he told
any of the officers that the vehicle was brought to the property by
“boys from Zola”.  He
also denied that he ever told
the police officers that he will only give his explanations in
court.
[37]
The plaintiffs spent two
nights in the holding cells and were taken to court on Tuesday, 12
July 2019.  They did not say anything
during the hearing and
were remanded.  Nothing was said about bail, and they were taken
to Johannesburg prison.  Thereafter
they had several court
appearances, some of them by video conference from the prison, and
each time they were remanded again.
[38]
The plaintiffs asked the
Magistrate on the second appearance for an identity parade, but the
Magistrate told them that they did
not have the right to ask, because
they were criminals.  At one of their appearances, the
plaintiffs asked for a lawyer, and
they were again remanded, pending
the appointment of a lawyer by Legal Aid.
[39]
Ultimately, the second
plaintiff was granted bail.  The first plaintiff was told that
he had to remain in custody because he
had another pending case.
However, a few days later, when the investigating officer could not
bring proof of the other case,
he was also released on bail.
The
second plaintiff’s evidence
[40]
The second plaintiff
testified that on the day of the arrest, he went to the property,
which he referred to as “Gaba’s
place” (a reference
to the first plaintiff), to look for his friend Hector, who repairs
computers and stayed in a shack in
the yard.  He bumped into the
first plaintiff at the property. They were not close friends.
He did not know whether
the first plaintiff lived at the property.
[41]
As there was no answer at
Hector’s shack, he left.  As he was opening the gate to
leave the property, he met a male and
a female police officer.
The female officer told him to turn back with them.  Upon his
question what they were doing
there, she told him that they were
going to check the yard.  He explained to her that he was not
staying at the property and
that he was just there looking for his
friend.
[42]
As they entered the
backyard, they saw the first plaintiff coming from the direction of
the toilet.  The male police officer
told the plaintiffs that
they were under arrest.  When the second plaintiff asked the
reason for the arrest, he was told that
the plaintiffs knew the
reason.  He informed the police officers that he had to go home
because he had to give his mother’s
medication to her.
However, this request was refused.  He insisted that he was not
given a reason why he could not leave.
[43]
The police officers asked
the first plaintiff to whom the vehicle parts belong, and the he
pointed a finger towards the shacks.
The second plaintiff again asked
the female police officer to accompany him to his house so that he
can give his keys to his parents
and tell them what was happening,
because his mother was sick.  The male officer, however, refused
and told him that he had
to first explain the presence of the vehicle
parts, which they could not do. They were then told to move the parts
to the gate,
after which they were handcuffed.
[44]
They were then taken to
Moroka Police Station, where he gave his address and keys to one of
the female volunteers at the police
station, with the request to take
the keys home to his parents and tell them what had happened, which
she apparently did.
The plaintiffs were thereafter locked up in
a cell.
[45]
He also testified that
Sergeant Thutlwa only arrived on the scene after the plaintiffs had
already been handcuffed.  He said
that he never heard any of the
officers who arrived at the scene calling for anyone to ‘stop’.
[46]
Several police officers
arrived on the Tuesday and took DNA samples.  Subsequently they
called the first plaintiff out a few
times and spoke with him alone.
The second plaintiff does not know what they discussed.  He
asked the first plaintiff
what the police spoke to him about, but the
first plaintiff told him that he only knows that the whole matter
pertained to the
motor vehicle parts that were found at the
property.  When he asked the first plaintiff who the motor
vehicle parts belonged
to, he said they belonged to the motor
mechanic.  When asked why he did not insist that the first
plaintiff tell this to the
police officers, he explained that they
were told that they should only give their explanation once they have
a lawyer.
[47]
The second plaintiff was
adamant that the police officers did not speak to him at all.
He testified that, if he had been asked,
he would have told them that
he only went to the property to see Hector, and that he had not been
involved with the vehicle.
[48]
They were then taken to
court, where they for the first time met the investigating officer,
Constable Molokwane.  Thereafter
they were remanded on various
occasions.  They were refused bail on each occasion because the
investigating officer had not
finished the investigation.
[49]
By their fourth
appearance, Legal Aid had made an attorney available to them.
[50]
When confronted with why
the plaintiffs did not explain to the police officers that they were
not in possession of the motor vehicle
parts, he explained that the
male police officer who arrested them told them that whatever they
had to say they could say at the
police station.  When pointed
out to him that he did not tell his side of the story at the police
station, he said the lady
who made an inventory of personal property
handed in by them (such as their belts) told him that it was only her
duty to write
down the property and nothing else.  He says there
was no other opportunity to tell their story.  The police
officers
at the police station told them that they had to give their
explanation in court.
[51]
He denied that he was
ever interviewed by the investigating officer and reiterated that the
investigating officer only came to them
for the first time when they
made their first court appearance, where he told them that he would
investigate the matter.
Assessing
the evidence
[52]
The plaintiffs’
versions and the defendants’ version of events are
irreconcilable in material respects, including:
a)
The plaintiffs insist
that they were not arrested by Sergeant Thutlwa and Constable Motumo,
but by a male officer called Vusi and
an unidentified female officer.
b)
The plaintiffs insist
that they were not caught in the act of disassembling the vehicle by
Constable Motumo.
c)
The first plaintiff
denies that they were asked whose vehicle it was, and both plaintiffs
deny that the first plaintiff offered
the explanation to the police
officers that the vehicle was brought to the property by “boys
from Zola”.
d)
The plaintiffs insist
that they only met the investigating officer, Sergeant Molokwane, at
court, and not the day before, as he
testified.
[53]
The
technique generally employed by courts faced with irreconcilable
versions has been set out in
Stellenbosch
Farmers’ Winery Group
.
[2]
It requires a court to make findings on the credibility and
reliability of the factual witnesses, and the probabilities.
[54]
The plaintiffs’
denial that Sergeant Thutlwa and Constable Motumo were the arresting
officers requires particular scrutiny.
Several factors throw serious
doubt on the credibility of the plaintiffs’ version on this
issue.
[55]
The identity of the
arresting officers was placed in dispute for the first time when the
plaintiffs gave evidence. There was no
suggestion of this during the
cross-examination of any of the defendants’ witnesses. At the
very least, this version ought
to have been put to Sergeant Thutlwa.
[56]
In
President
of the RSA
[3]
the Constitutional Court emphasised the need to provide a witness
with an opportunity to answer to any challenges to the truthfulness

of his evidence.  A witness is entitled to deny the challenge,
to call corroborative evidence, to qualify the evidence or
to explain
the contradictions relied upon.  If a point in dispute is left
unchallenged in cross-examination, the Constitutional
Court remarked,
the party calling the witness is entitled to assume that the
unchallenged witnesses’ testimony is accepted
as correct.
[57]
The cross-examination of
Sergeant Thutlwa’s implicitly accepted the truth of his
evidence that he and Constable Motumo were
the arresting officers. He
was challenged on matters such as that he could not reasonably have
formed the view that an offence
was committed by the plaintiffs.
There was no
caveat
that any line of questioning assumed the truth of his evidence only
for purposes of the questioning.
[58]
This is not a case where
counsel omitted to put a version to a witness. The plaintiffs’
version that was put to Sergeant Thutlwa
included matters such as the
nature of the entrance to the property. It was put to Sergeant
Thutlwa that a roller shutter door
gave access to the property, and
not a gate as he testified. He denied this version.
[59]
The parties agreed at the
outset that the bundle of documents handed in was to be accepted into
evidence, with no challenge to the
contents thereof. Essentially, the
bundle contained the docket in the criminal matter against the
plaintiffs.
[60]
The
parties further also agreed that the affidavits forming part of the
case docket against the plaintiffs in the withdrawn criminal
matter
(and included in the documents bundle), shall be accepted as evidence
in the trial.
[4]
Again, this was
done without any reservation as to the truthfulness of any part of
that evidence.
[61]
When the plaintiffs were
challenged with the fact that their counsel did not put this version
to the defendants’ witnesses,
they both responded that they
would not know what the reason was for that omission.
[62]
In
De
Lacy
[5]
the Supreme Court of Appeal explained:
“
[35] The process of
inferential reasoning calls for an evaluation of all the evidence and
not merely selected parts. The inference
that is sought to be drawn
must be ‘consistent with all the proved facts:  if it is
not, then the inference cannot be
drawn’
[6]
and it must be the ‘more natural, or plausible, conclusion from
amongst several conceivable ones’
[7]
when measured against the probabilities.”
[63]
It seems to me that the
more natural or plausible conclusion is that the plaintiffs
fabricated substantial elements of their evidence,
especially the
version that two unidentified police offers were the arresting
officers. In the result, I find that the plaintiffs
are not credible
and reliable witnesses.
[64]
Although counsel for the
plaintiffs submitted that the defendants’ witnesses should not
be believed, he was unable to establish
a basis for the argument. I
am satisfied that the defendants’ witnesses testified frankly
and honestly. There is also no
reason to doubt the credibility of
their evidence, which corresponds with the documentary evidence.
[65]
I therefore proceed to
assess the validity of the plaintiffs’ claims as measured
against the evidence presented by the defendants’
witnesses.
Was
the arrest unlawful?
[66]
The
Constitutional Court confirmed the requirements for a claim for
unlawful arrest and detention in
De
Klerk
[8]
:
“
A claim under the
actio
iniuriarum
for unlawful arrest and detention has specific
requirements:
(a)
the plaintiff must establish that their liberty has been interfered
with;
(b)
the plaintiff must establish that this interference occurred
intentionally.  In claims for unlawful arrest, a plaintiff
need
only show that the defendant acted intentionally in depriving their
liberty and not that the defendant knew that it was wrongful
to do
so;
(c)
the depravation of liberty must be wrongful, with the onus falling on
the defendants to show why it is not; and
(d)
the plaintiff must establish that the conduct of the defendant must
have caused, both legally and factually, the harm for which

compensation is sought.”
[67]
It is common cause
between the parties that the requirements set out in (a) and (b) were
met.
[68]
The plaintiffs’
claim for unlawful arrest was premised on them having been arrested
for “hijacking and robbery”.
The first defendant
pleaded that the arresting officers had reasonable suspicion that the
plaintiffs had committed the offences
of robbery, theft or possession
of stolen property, and that the arrest was lawful in terms of
section 40(1)(b), alternatively
section 40(1)(e), of the CPA.
[69]
The relevant portions of
section 40 of the CPA provide that:
“
(1) A peace officer
[9]
may without warrant arrest any person –
…
(b) whom he reasonably suspects
of having committed an offence referred to in Schedule 1, other than
the offence of escaping from
lawful custody;
…
(e) who is found in possession of
anything which the peace officer reasonably suspects to be stolen
property or property dishonestly
obtained, and whom the peace officer
reasonably suspects of having committed an offence with respect to
such thing;
…”
[70]
Sergeant Thutlwa
testified that the plaintiffs were arrested on suspicion of being in
possession of a stolen vehicle.  This
aligns with the late
Constable Motumo’s statement, the entry in the Occurrence Book
(SAPS10, also known as the “OB”)
for the Moroka Police
Station on the night of the arrest, and the entry on the cover of the
case docket.
[71]
Schedule
1 to the CPA includes the offence of receiving stolen property
knowing it to have been stolen.  This crime is committed
when a
person unlawfully (thus without lawful cause) and intentionally
(which requires knowledge that the goods are stolen property)

receives stolen property into his possession.
[10]
[72]
The plaintiffs did not
challenge the evidence that the partly disassembled motor vehicle
found at the property by the arresting
officers had been stolen a few
days earlier.  Sergeant Thutlwa verified this information on the
scene of the arrest.
In the statement by the late Constable
Motumo, he had confirmed that he found the arrestees busy stripping
the motor vehicle. There
is no evidence that any other person was at
the property at the time.
[73]
In
my view it was reasonable for the arresting officers to conclude that
the plaintiffs had direct personal control over the motor
vehicle and
could therefore be considered in possession of the vehicle.
[11]
The further evidence by sergeant Thutlwa that the plaintiffs
attempted to run away, and the fact that they did not give a
reasonable
explanation for being in possession of the vehicle,
established reasonable grounds
[12]
for
the suspicion that the plaintiffs were in possession of the vehicle
knowing it to be stolen.
[74]
I therefore conclude that
the arresting officers were entitled to act in terms of section 40(1)
of the CPA.
[75]
Once
the jurisdictional requirements of section 40 were satisfied, the
arresting officers had a discretion as to whether or not
to exercise
the power to arrest, which must be properly exercised.  The
exercise of the discretion was however not an issue
on the
pleadings.  The plaintiffs, who had to raise the issue either in
their summons or in a replication,
[13]
did not do so.
[76]
The
issue was briefly touched upon when the plaintiffs’ counsel
posed the proposition to Sergeant Thutlwa that it had not
been
necessary to arrest the plaintiffs in order to bring them before
court. However, the issue was not fully ventilated at the
hearing of
the matter.  In the result, it cannot be said that the issue was
canvassed to the extent that it amounted to an
agreement to include
it as one of the issues to be decided between the two parties.
[14]
[77]
In
the result, the plaintiffs’ claim for unlawful arrest should be
dismissed.
[15]
[78]
If
the exercising of the discretion was an issue to be decided between
the parties, I conclude that it was properly exercised.
In this
regard, I keep in mind that the onus to establish that the discretion
was not properly exercised, rests on the plaintiffs.
[16]
[79]
The
decision to arrest must be based on the intention to bring the
arrested person to justice.
[17]
In
Sekhoto
[18]
the Supreme Court of Appeal explained as follows:
“
This would mean that
peace officers are entitled to exercise their discretion as they see
fit, provided that they stay within the
bounds of rationality.
The standard is not breached because an officer exercises their
discretion in a manner other than
that deemed optimal by the Court.
A number of choices may be open to him, all of which may fall within
the range of rationality.
The standard is not perfection or
even the optimum, judged from the vantage of hindsight – so
long as the discretion is exercised
within this range, the standard
is not breached.”
[80]
The
plaintiffs suggested that there were less onerous ways in which to
procure their attendance at trial, and it was thus not necessary
to
arrest them. In this regard, the Supreme Court of Appeal said the
following in
Sekotho
[19]
:
“
While the purpose of
arrest is to bring the suspect to trial, the arrestor has a limited
role in that process.  He or she is
not called upon to determine
whether the suspect ought to be detained pending a trial.  That
is the role of the court (or
in some cases a senior officer).
The purpose of the arrest is no more than to bring the suspect before
the court (or the
senior officer) so as to enable that role to be
performed.  It seems to me to follow that the inquiry to be made
by the peace
officer is not how best to bring the suspect to trial:
the enquiry is only whether the case is one in which that decision

ought properly to be made by a court (or the senior officer).
Whether his decision on that question is rational naturally
depends
on the particular facts, but it is clear that in cases of serious
crime – and those listed in Schedule 1 are serious,
not only
because the legislature thought so – a peace officer could
seldom be criticised for arresting a suspect for that
purpose.”
[81]
When asked if there was a
less invasive manner in which to have brought the plaintiffs before
court, Sergeant Thutlwa responded
that it was the Flying Squad’s
duty to arrest a person who committed a crime, and that it was for
the detectives to decide
whether suspects should be released or not.
He was not sure in which schedule to the CPA the offence of being in
possession
of stolen goods appears. However, he held firm in his view
that an arrest without a warrant may be made in the circumstances he

described. On the evidence of Sergeant Thutlwa, the plaintiffs
attempted to escape arrest.  On the first plaintiff’s
own
evidence, he did not reside at the address that he gave to the police
officers as his residential address.
[82]
In the circumstances the
arresting officers have acted within reason when they arrested the
plaintiffs. The plaintiffs have not
put up any evidence to show why
the exercise of the discretion by the arresting officers was not
properly exercised.
[83]
In the result, the
plaintiffs’ claim for unlawful arrest should also for this
reason be dismissed.
Was
the detention unlawful?
[84]
The plaintiffs pleaded
the arrest and detention as two separate claims.  They pleaded
that the detention of the plaintiffs
at the instance of the police
officials was wrongful on several grounds.  Firstly, they
contended that it followed upon an
unlawful arrest.  I have
already found that the arrest was lawful.
[85]
They further pleaded that
the police officers took longer than necessary to process them
administratively.  On the evidence,
that contention cannot
withstand scrutiny, and was not pressed by the plaintiffs’
counsel in closing argument.  It is
clear that the plaintiffs
were arrested late afternoon on the Sunday, that the investigating
officer and other officers took all
the required steps to process the
arrestees during the course of the Monday, and that they were taken
to court on Tuesday morning,
which was the earliest opportunity in
the circumstances.
[86]
The plaintiffs further
claimed that senior police officials should have exercised their
discretion to release the plaintiffs on
warning or on bail in terms
of sections 56 or 59 of the CPA respectively, but, prudently, did not
persist with these arguments.
Section 56 allows for a written notice
to appear in court in lieu of an arrest only in the case of offences
that will lead on conviction
to a sanction of no more than a fine up
to R1000.  Section 59 allows for a senior police officer to
grant bail for offences
other than those appearing in Part II and
Part III of Schedule 2 to the CPA, which includes the offences of
robbery, theft, receiving
stolen property knowing it to have been
stolen.  The offences of which the plaintiffs were suspected,
did thus not allow for
the application of either section 56 or 59.
[87]
As
pointed out above, with reference to
Sekotho
[20]
,
the police officers do not play a role once they have caused the
plaintiffs to appear before a court.  Their detention after
the
first appearance is therefore not an aspect to be considered with
regard to the first defendant’s conduct.  In any
event, no
such allegations have been made.  This case is distinguishable
from the matter of
De
Klerk
[21]
,
where the Constitutional Court found that the arrest was unlawful,
and that it was foreseeable by the police officer who made
the
unlawful arrest that the arrestee will be merely remanded for seven
days without further inquiry, so that the seven day detention
after
the first court appearance was causally linked to the unlawful
arrest.
[88]
In the result, the
plaintiffs’ claim for unlawful detention should be dismissed.
[89]
Although it seems to me
that much could be said about the delay in granting bail to the
plaintiffs, no claim was pleaded against
the second defendant for
unlawful detention.
Was
the prosecution malicious?
[90]
In
Kruger
[22]
the Constitutional Court approved of the formulation of the elements
for an action for malicious prosecution by the Supreme Court
of
Appeal in
Moleko
[23]
:
“
In order to succeed (on
the merits) with a claim for malicious prosecution, a claimant must
allege and prove –
(a)
that the defendants set the law in motion (instigated or instituted
the proceedings);
(b)
that the defendants acted without reasonable and probable cause;
(c)
that the defendants acted with ‘malice’ (or
animo
injuriandi
); and
(d)
that the prosecution has failed.”
[91]
The plaintiffs pursued a
claim for malicious prosecution against both defendants.  It is
necessary to consider these claims
separately.
[92]
The
first question that must be considered is whether the police
officials set the law in motion against the plaintiffs, in the
sense
of having instigated or instituted the proceedings.  Evidently,
they did not institute the proceedings.  As to
whether they
instigated the proceedings “
the
question is whether they did anything more than one would expect from
a police officer in the circumstances, namely to give
a fair and
honest statement of the relevant facts to the prosecutor, leaving it
to the latter to decide whether to prosecute or
not”
.
[24]
[93]
The arresting officers
were not involved in the matter beyond the arrest. Sergeant
Molokwane, the investigating officer, presented
the available
evidence to the prosecutor, and pointed out to the prosecutor that
the complainant could not identify his assailants.
There is no
evidence that any of the police officers did anything other than what
was expected of them.
[94]
The plaintiffs’
claim for malicious prosecution against the first defendant must
therefore fail on the first leg of the test,
namely they did not
instigate the prosecution.
[95]
The second defendant
instituted the proceedings, and the plaintiffs were unsuccessfully
prosecuted.  It must thus be considered
whether the second
defendant acted without reasonable and probable cause, and whether it
acted with
animo
injuriandi
.
[96]
In
Moleko
[25]
the Supreme Court of Appeal explained the concept of reasonable and
probable cause as follows:
“
[20] 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 concept therefore
involves both a subjective and an objective
element –
‘
not
only must the defendant have subjectively had an honest belief in the
guilt of the plaintiff, but his belief and conduct must
have been
objectively reasonable, as would have been exercised by a person
using ordinary care and prudence.’”
[26]
[97]
The
requirement to show that the prosecution was instituted ‘
in
the absence of reasonable and probable cause
’
was explained by the Supreme Court of Appeal on several occasions,
including in
Beckenstrater
[27]
:
“
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
probably cause.”
[98]
In
Relyant
[28]
the
Supreme Court of Appeal added:
“
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 for 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.’”
[99]
The
plaintiffs were prosecuted for robbery of a motor vehicle with
aggravating circumstances, in that a firearm was used.
Robbery
consists of the theft of property, by unlawfully and intentionally
using violence to take the property from another, or
threats of
violence to induce the possessor of the property to submit to the
taking of the property.
[29]
[100]
The senior prosecutor had
the following available upon which to decide whether or not to
prosecute the plaintiffs, and for which
crimes:
a)
Constable Motumo’s
evidence that he found the plaintiffs stripping the motor vehicle;
b)
Sergeant Thutlwa’s
evidence, that the two plaintiffs were found on the same property as
the disassembled motor vehicle, that
they tried to flee when the
police officers arrived on the scene, and that they did not give a
reasonable explanation for their
possession of the vehicle; and
c)
the complainant’s
evidence, that the stripped vehicle belonged to him, that he was
robbed of the motor vehicle at gunpoint,
but that he could not
identify his assailants.
[101]
The only evidence that
linked the plaintiffs with the robbery were thus that they were found
in possession of the stolen motor vehicle
four days after the
robbery, and that they are African males, as were the assailants.
[102]
The
prosecutor, Mr Tshabalala, testified that the prosecution was based
on the plaintiffs having been found in possession of the
stolen motor
vehicle four days after it had been hijacked. The prosecution thus
exclusively relied upon what is often referred
to as the ‘doctrine
of recent possession’.  The inference that a person found
to be in possession of recently
stolen property is the thief or the
robber can only be drawn as the only reasonable inference where the
nature of the goods stolen
and the time lapse between the robbery and
the discovery of the goods in that person’s possession lend
themselves to such
a finding.
[30]
[103]
The
Supreme Court of Appeal explained in
Mothwa
:
[31]
“
Courts have repeatedly
emphasised that the doctrine of recent possession must not be used to
undermine the onus of proof which always
remains with the state.
It is not for the accused to rebut an inference of guilt by providing
an explanation.  All that
the law requires is that having been
found in possession of property that has been recently stolen, he
gives the court a reasonable
explanation for such possession.”
[104]
When
a court considers whether or not to draw the inference, it must have
regard to factors such as the length of time that passed
between the
possession and the actual offence, the rareness of the property, and
the ease with which the property can or is likely
to pass to another
person.
[32]
Common place
property such as motor vehicles are easy to trade and can change
hands easily.
[33]
[105]
In
Mothwa
,
[34]
the appellant was arrested at the Skilpadsnek border post with
Botswana, three days after the vehicle that he intended to cross
the
border with had been robbed at gunpoint in Soshanguve. The Court
found that the inference that the appellant was one of the
robbers
was not the only reasonable inference that could be drawn. However,
the fact that the appellant gave a plausible explanation,
and
registration papers in line with his explanation, weighed heavily
with the Court. Each matter must be determined on its own
facts.
[106]
In my view, the sparse
evidence available to the prosecution could not lead the reasonable
person to conclude that the plaintiffs
were probably guilty of the
armed robbery.
[107]
Mr Tshabalala testified
that it is usual to charge an accused with robbery where a
complainant cannot identify his assailant, if
the accused was found
in possession of the stolen vehicle within a short period after the
robbery, because a charge for possession
of a stolen vehicle is a
competent verdict under a robbery charge in terms of section 36 of
the CPA.
[108]
Section 260 of the CPA
provides that, if the evidence on a charge of robbery does not prove
the offence of robbery, but the offence
of receiving stolen property
knowing it to have been stolen, or an offence under section 36 or
section 37 of the General Law Amendment
Act 62 of 1955, the accused
may be found guilty of that offence.  Section 264 of the CPA has
similar a provision in respect
of a charge of theft.
[109]
On a charge of receiving
stolen property knowing it to have been stolen, section 265 similarly
provides that if an offense under
section 37 of the General Law
Amendment Act is proven, the accused may be so found guilty.
[110]
Section 36 of the General
Law Amendment Act provides that:
“
Any person who is found in
possession of any goods, other than stock or produce as defined in
section one of the Stock Theft Act,
1959 (Act 57 of 1959), in regard
to which there is a reasonable suspicion that they have been stolen
and is unable to give a satisfactory
account of such possession,
shall be guilty of an offence and liable on conviction to the
penalties which may be imposed on a conviction
of theft.”
[111]
Section 37 of the same
Act provides that:
“
(1)(a) any person who in
any manner, otherwise than at a public sale, acquires or receives
into his or her possession, from any
other person stolen goods, other
than stock or produce as defined in section 1 of the Stock Theft Act,
1959, without having reasonable
cause for believing at the time of
such acquisition or receipt that such goods are the property of the
person from whom he or she
receives them or that such person has been
duly authorised by the owner thereof to deal with or to dispose of
them, shall be guilty
of an offence and liable on conviction to the
penalties which may be imposed on a conviction of receiving stolen
property knowing
it to have been stolen except insofar as the
imposition of any such penalty may be compulsory.
(b) In the absence of evidence to
the contrary which raises a reasonable doubt, proof of such
possession shall be sufficient evidence
of the absence of reasonable
cause.”
[112]
In my view, the evidence
available to the prosecution could lead the reasonable person to
conclude that the plaintiffs were probably
guilty of one of these
offences. However, it remained unlawful to have charged them with the
more serious crime of robbery, for
which the prosecution did not have
reasonable grounds.
[113]
What
remains is the question of whether the prosecution for robbery took
place with
animus
injuriandi
.
In
Relyant
[35]
the Supreme Court of Appeal approved of the concept as set out in
Moaki
[36]
:
“
Although the expression
‘malice’ is used, it means, in the context of the
actio
iniuriarum
,
animus injuriandi
.  In Moaki v Reckitt &
Coleman (Africa) Limited and Another Wessels JA said:
‘
Where
relief is claimed by this
actio
the plaintiff must allege and
prove that the defendant intended to injure (either
dolus directus
or
indirectus
).  Save to the extent that it might afford
evidence of the defendant’s true intention or might possibly be
taken into
account in fixing the quantum of damages, the motive of
the defendant is not of any legal relevance.’”
[114]
In
Moleko
[37]
the Court approved of the concept of
animus
injuriandi
as explained in Neethling
et
al
[38]
:
“
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
.”
[115]
Thus
a defendant must at least have foreseen the possibility that he or
she is acting wrongfully, but nevertheless continued to
act, reckless
as to the consequences of his or her conduct – negligence would
not suffice,
dolus
eventualis,
at a minimum, is required.
[39]
Indeed, the National Prosecuting Authority Act
[40]
,
which authorises the powers and duties of prosecutors, specifically
provides in section 42 that no person shall be liable in respect
of
anything done in good faith under that Act.
[116]
The senior prosecutor who
made the decision to prosecute did not testify. From the evidence of
Mr Tshabalala, I am satisfied that
the prosecution did not appreciate
that the “catch all” approach of proceeding with the
robbery charge, because it
encompasses the lesser charges for which
there were reasonable grounds to believe the plaintiffs are guilty,
was wrongful. It intended
to prosecute for all the possible offences
in one trial, with the same evidence. I conclude that the prosecution
did not prosecute
the plaintiffs for robbery with the intention
(
dolus eventualis
)
to injure them.
[117]
In the circumstances I
find that the plaintiffs did not prove that the second defendant
acted with
animus
injuriandi
.
Order
[118]
The plaintiffs’
claims are dismissed, and the plaintiffs are ordered to pay the
defendants’ costs, jointly and severally.
______________________________________
A
Bester
Acting
Judge of the High Court of South Africa
Gauteng
Local Division, Johannesburg
Heard:
8, 9, 10 and 11 October 2019
Judgment:
31 January 2020
Counsel
for the Plaintiffs: Adv Thole
Instructed
by: MG Mali Attorneys Incorporated
Counsel
for the Defendants: Adv Bokako
Instructed
by: The State Attorney, Johannesburg
[1]
Uniform Rule of Court 39(13) provides that:
“
Where the onus of
adducing evidence on one or more of the issues is on the plaintiff
and that of adducing evidence on any other
issue is on the
defendant, the plaintiff shall first call his evidence on any issues
in respect of which the onus is upon him,
and may then close his
case.  The defendant, if absolution from the instance is not
granted, shall, if he does not close
his case, thereupon call his
evidence on all issues in respect of which such onus is upon him.”
[2]
Stellenbosch Farmers’
Winery Group Limited & Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) in [11].
[3]
President of the
Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) in [61] to [65].
[4]
Uniform Rule of Court 38(2) provides that:
“
The witnesses at the
trial of any action shall be orally examined, but a court may at any
time, for sufficient reason, order that
all or any of the evidence
to be adduced at any trial be given on affidavit or that the
affidavit of any witness be read at the
hearing, on such terms and
conditions as to it may seem meet:  Provided that where it
appears to the court that any other
party reasonably requires the
attendance of a witness for cross-examination, and such witness can
be produced, the evidence of
such witness shall not be given on
affidavit.”
Uniform
Rule of Court 37(6)(i) makes it clear that the parties may agree on
the production of proof by way of an affidavit in
terms of Rule
38(2).
[5]
South African Post
Office v De Lacy
2009
(5) SA 255
(SCA) in [35].
[6]
R v Blom
1939
AD 188
at 202 – 203.
[7]
Ocean Accident and
Guarantee Corporation Limited v Koch
1963
(4) SA 147
(A) at 159 B – D.
[8]
De Klerk v Minister of
Police
[2019] ZASCA
32
in [14] (footnotes omitted).
[9]
Section 1 of the CPA provides that ‘peace officer’
includes any police official.
[10]
See
inter alia
CR Snyman
Criminal Law
6
th
ed. p 512 para 1.
[11]
S v Essack
1963 (1) SA 922
(T) at 924 A – B.
[12]
Duncan v Minister of
Law and Order
1986
(2) 805 (A) at 818 F/G – H.
[13]
Minister of Safety &
Security v Sekhoto
2011 (1) SACR 315
(SCA) in [57].
[14]
Mastlite (Pty) Ltd v
Stavracopoulos
1978
(3) SA 296
(T) at 299 D – E;
EC
Chenia & Sons CC v Lamé & Van Blerk
[2006] ZASCA 10
;
2006
(4) SA 574
(SCA) in [13] to [15].
[15]
Sekhoto
supra
in [57].
[16]
Duncan supra
at 819 A – B;
Sekhoto
supra
in [45] to
[57].
[17]
Sekhoto supra
in [30].
[18]
Sekhoto supra
in [39].
[19]
Supra
in [44].
[20]
Supra
in [44].
[21]
De Klerk v Minister of
Police
[2019] ZACC32.
[22]
Kruger v National
Director of Public Prosecutions
[2018] ZACC 13
in [48].
[23]
Minister for Justice
and Constitutional Development v Moleko
2009 (2) SACR 585
(SCA) at [8].
[24]
Minister of Justice
and Constitutional Development v Moleko
2009
(2) SACR 585
(SCA) in [11].
[25]
Supra
in
[20].
[26]
Quoting from LAWSA Volume 15 para 449.
[27]
Beckenstrater v
Rottcher and Theunissen
1955 (1) SA 129
(A) at 136 A – B, quoted with approval in
Relyant Trading (Pty)
Ltd v Shongwe
[2007]
1 All SA 375
(SCA) in [14] and
Moleko
supra
in [57].
[28]
Relyant supra
in [14], quoting from
Beckenstrater
supra
at 135 D –
E.
[29]
See
inter alia
CR Snyman
Criminal Law
6
th
ed. p 508 para 1.
[30]
S v Mavinini
2009 (1) SACR 523
(SCA) in [6];
Zwane
and Another v S
[2013]
ZASCA 165
(27 November 2013) in [11].
[31]
Mothwa v S
(124/15)
[2015] ZASCA 143
(1 October 2015) in [10].
[32]
S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 C – G;
Mothwa
supra
in [8].
[33]
Mothwa supra
in [9].
[34]
Supra
.
[35]
Supra
in [5].
[36]
Moaki v Reckitt &
Coleman (Africa) Ltd
1968 (3) SA 98 (A).
[37]
Supra
in [63].
[38]
J Neethling, JM Potgieter & PJ Visser
Neethling’s
Law of Personality
2
nd
ed. (2005) p 181.
[39]
Molek
o
supra
in [64].
[40]
Act 32 of 1998.