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[2014] ZASCA 129
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Minister of Justice and Constitutional Development v X (196/13) [2014] ZASCA 129; 2015 (1) SA 25 (SCA); 2015 (1) SACR 187 (SCA); [2014] 4 All SA 586 (SCA) (23 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 196/13
Reportable
In
the matter between:
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
APPELLANT
DEVELOPMENT
and
X
RESPONDENT
Neutral
citation:
The Minister of Justice and
Constitutional Development v X
(196/13)
[2014] ZASCA 129
(23 September 2014)
Coram:
Lewis, Tshiqi, Wallis and Zondi JJA and Fourie AJA
Heard:
1 September 2014
Delivered:
23 September 2014
Summary:
Delictual claim ─ Duty of prosecutor at bail
hearing ─ Failure to place all relevant information before
court ─
Should have foreseen violent crime of sexual nature
being committed by accused if released ─ negligence established
─
defence based on
s 42
of the
National Prosecuting Authority
Act 32 of 1998
rejected.
ORDER
On
appeal from:
Western Cape High Court, Cape
Town (Yekiso
J sitting as court of first
instance)
The
appeal is dismissed with costs, including the costs of two counsel,
where employed.
JUDGMENT
Fourie
AJA (
Lewis, Tshiqi, Wallis and
Zondi JJA
concurring):
[1]
This is an appeal against the order of the Western Cape High Court,
Cape Town (Yekiso J). The appeal is with the leave of the
court
below. Yekiso J declared the appellant to be liable to the respondent
for the payment of damages arising out of the abduction
and rape of
her five year old daughter. The claim was brought by the respondent
as mother and natural guardian of her minor child
as well as in her
personal capacity. In order to protect the identity of the minor
child, the respondent is cited as X. As explained
below, the court a
quo held the appellant liable by virtue of the negligent conduct of a
public prosecutor in regard to a bail
application hearing in the
magistrates’ court for the district of Ladismith.
[2]
On 11 May 2007 O[…] J[…] S[…] (S[…]) made
his fourth appearance in the Ladismith Magistrates’
Court on a
charge of raping his 12 year old daughter on four occasions during
2006 and 2007. He applied for bail and as the offence
of rape is
listed as a Schedule 6 offence in terms of
s 60(11)
(a)
of the
Criminal Procedure Act 51 of 1977
, he
bore the onus of proving the existence of exceptional circumstances
justifying his release on bail in the interests of justice.
[3]
S[…] was legally represented at the bail hearing and gave
evidence under oath. The investigating officer, Sergeant De
Kock (De
Kock), testified on behalf of the State in opposing the application.
At the conclusion of the hearing the magistrate granted
S[…]
bail, but remanded the matter to 16 May 2007, awaiting proof of an
address at which S[…] would reside when released
on bail. S[…]
was detained in custody.
[4]
On 16 May 2007 the matter was remanded to 29 May 2007 as S[…]
had not yet succeeded in furnishing an acceptable address.
S[…]
remained in custody. On 29 May 2007 the matter was again postponed,
to 15 June 2007, due to S[…]’s continued
inability to
furnish an acceptable address. He was again detained in custody.
[5]
On 15 June 2007 S[…] provided the court with an address in
Ladismith where he could reside upon his release from custody.
The
magistrate found it to be an acceptable place of abode for S[…]
and released him on his own recognisance, subject to
certain
conditions.
[6]
On 9 July 2007 and in the neighbouring town of Oudtshoorn, S[…]
abducted the respondent’s five year old daughter
from her home
and raped her twice. In the trial that followed the commission of
these offences, S[…] was found guilty and
received two
sentences of life imprisonment for the rape of the minor child and a
sentence of five years’ imprisonment for
her abduction. I
should add that, in the same trial, S[…] was also found guilty
and received four sentences of life imprisonment
for the rape of his
own daughter.
[7]
When she was abducted and raped, the minor daughter and the
respondent were residing with the respondent’s fiancé
(the brother of S[…]) at Oudtshoorn. It was during the course
of her relationship with her fiancé that the respondent
met
S[…]. She soon became aware that S[…] was a loafer and
a beggar who would visit his brother whenever he needed
money. It was
during one of these visits that S[…] abducted and raped the
respondent’s minor daughter.
[8]
The respondent maintained that the combined negligent conduct of
members of the South African Police Service and the prosecutor,
who
appeared on behalf of the State at the hearing of the bail
application, caused S[…] to be released on his own
recognisance,
thereby allowing him the opportunity to abduct and rape
her minor daughter. She accordingly issued summons against the
Minister
of Safety and Security (as the first defendant) and the
appellant (as the second defendant), for the payment of damages
suffered
as a consequence of the abduction and raping of her minor
daughter. The defendants defended the action.
[9]
In the event, the trial proceeded before Yekiso J, who ordered that
the issue of liability be determined first. After hearing
evidence
the learned judge declared the defendants liable, jointly and
severally, for payment of such damages as the respondent
may in due
course prove that she has suffered in her personal and representative
capacity. It is only the appellant who has noted
an appeal against
this finding, with the first defendant abiding the judgment of the
court a quo.
[10]
On appeal the appellant submitted that the court below erred in
finding that the prosecutor had negligently failed to execute
his
prosecutorial duties at the hearing of the bail application. The
appellant further contended that the presiding magistrate
erred in
finding that, on the evidence before him, S[…] had discharged
the onus of showing that he should be granted bail.
In addition, the
appellant argued that the court a quo erred in finding that the
respondent had suffered a psychiatric injury or
emotional shock
entitling her to claim damages.
[11]
I should add that, on appeal, the appellant also relied on a new
defence based on s 42 of the National Prosecuting Authority
Act
32 of 1998 (the NPA Act). This defence was first raised in the
application for leave to appeal and Yekiso J granted the appellant
leave to appeal on this ground too.
[12]
I now proceed to deal with the relevant legal requirements for a
delictual claim of this nature.
Wrongfulness
[13]
In a claim, such as the instant, where the conduct complained of
manifests itself in an omission, the negligent conduct will
be
wrongful only if the defendant is under a legal duty to act
positively to prevent the harm suffered by the plaintiff. The
omission
will be regarded as wrongful when the legal convictions of
the community impose a legal duty, as opposed to a mere moral duty,
to avoid harm to others through positive action. See
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA)
para 12 and
Local Transitional Council of
Delmas & another v Boshoff
2005 (5) SA
514
(SCA) paras 18 and 19.
[14]
In
Carmichele v Minister of Safety and
Security & another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC), it was held that, in developing our common law,
as required in terms of s 39(2) of the Constitution, the element of
wrongfulness
for omissions in delictual actions for damages had to be
developed beyond existing precedent, taking into account the rights
to
life, human dignity and freedom and security of the person
(sections 11, 10 and 12 of the Constitution). In particular (para
44),
it was emphasised that there is a duty imposed on the State and
all of its organs not to perform any act that infringes these
constitutional
rights of the person. The Constitutional Court added
that, in some circumstances, there would also be a positive component
which
obliges the State and its organs to provide appropriate
protection to everyone through laws and structures designed to afford
such
protection.
[15]
With regard to the duty of a prosecutor in a bail application
hearing, the Constitutional Court in
Carmichele
said the
following (para 74):
‘
There seems to be no reason in
principle why a prosecutor who has reliable information, for example,
that an accused person is violent,
has a grudge against the
complainant and has threatened to do violence to her if released on
bail should not be held liable for
the consequences of a negligent
failure to bring such information to the attention of the Court. If
such negligence results in
the release of the accused on bail who
then proceeds to implement the threat made, a strong case could be
made out for holding
the prosecutor liable for damages suffered by
the complainant.’
[16]
To this should be added the observation in para 72 of
Carmichele
,
that, although the consideration of bail is pre-eminently a matter
for the presiding judicial officer, the information available
to the
judicial officer can but come from the prosecutor. A prosecutor has a
duty to place before the court any information relevant
to the
exercise of the discretion with regard to the grant or the refusal of
bail and, if granted, any appropriate conditions attaching
thereto.
It follows that a failure to discharge this duty by a prosecutor
constitutes wrongful conduct for purposes of the law
of delict.
[17]
In
Van Eeden v Minister of Safety and Security
(Woman’s Legal Centre Trust As Amicus Curiae)
2003
(1) SA 389
(SCA) paras11-14 it was held that the question whether a
particular omission to act should be regarded as unlawful has always
been
an open-ended and flexible one. This court held that, in
determining the wrongfulness of an omission to act, the concept of
the
legal convictions of the community must now necessarily
incorporate the norms, values and principles contained in the
Constitution.
It was stressed that freedom from violence is
recognised as fundamental to the equal enjoyment of human rights and
fundamental
freedoms and that s 12(1)
(c)
of the Constitution requires the State to protect individuals, both
by refraining from such invasions itself and by taking active
steps
to prevent violation of the right. In particular, it was held that s
12(1)
(c)
of the
Constitution places a positive duty on the State to protect everyone
from violent crime. In this regard reference was made
to the seminal
decision in
Minister of Safety and Security v
Van Duivenboden
2002 (6) SA 431
(SCA) para
20, where this court concluded that, while private citizens might be
entitled to remain passive when the constitutional
rights of other
citizens are under threat, the State has a positive constitutional
duty to act in the protection of the rights
in the Bill of Rights.
[18]
In
Minister of Safety and Security & another v Carmichele
2004 (3) SA 305
(SCA) paras 36-37, it was held that the public law
duty of employees of the State who performed functions on its behalf
to protect
the rights of citizens in terms of the Bill of Rights,
can, in appropriate circumstances, be transposed into a private law
duty
which, if breached, may lead to an award of damages. In this
regard reference was made to the dictum in
Carmichele
(CC)
para 74 regarding the duty of a prosecutor at a bail application
hearing. This court concluded that the position of prosecutors
in
this context can in principle be no different from that of the
police. Therefore, this court held that, unless public policy
considerations point in the other direction, an action for damages
would be the norm.
Negligence
[19]
Fault is a general requirement for delictual liability; in the
instant matter the respondent alleges that the prosecutor was
negligent in the execution of his duties.
[20]
The test for determining negligence was formulated as follows by
Holmes JA in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 E-F:
‘
For the purposes of liability
culpa arises if─
(a) a diligens paterfamilias in the
position of the defendant-
(i) would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial
loss;
(ii) would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take such
steps.’
[21]
As emphasised by Harms JA in
Carmichele
(SCA), para 45, it
should not be overlooked that, in the ultimate analysis, the true
criterion for determining negligence is whether
in the particular
circumstances the conduct complained of falls short of the standard
of the reasonable person. See also
Sea Harvest Corporation (Pty)
Ltd & another v Duncan Dock Cold Storage (Pty) Ltd & another
2000 (1) SA 827
(SCA) para 21.
Causation
[22]
For the respondent to succeed with her claim for damages she has to
prove that there is a causal link between the alleged negligent
conduct of the prosecutor and the damages allegedly suffered by the
respondent and her minor daughter. It is trite that causation
has two
elements, the first being a factual issue, the answer to which has to
be sought by applying the ‘but-for’ test.
As explained by
Harms JA in
Carmichele
(SCA)
para 61, the proper inquiry in this regard is what the relevant
judicial officer, who is factually assumed to make decisions
reasonably, would, on the probabilities, have done had all the
relevant information been put before him.
[23]
The second element of causation is legal causation, namely whether
the wrongful act is linked sufficiently closely or directly
to the
loss for legal liability to ensue or whether, as it is said, the loss
is too remote. See
International Shipping Company Pty Ltd v
Bentley
1990 (1) SA 680
(A) at 700I.
The
application of the legal principles
[24]
At the trial in the high court the respondent gave evidence and
called a clinical psychologist, Ms Lategan, to testify on her
behalf.
De Kock testified on behalf of the first defendant, but no witnesses
were called to testify on behalf of the appellant.
Significantly, the
appellant did not call the prosecutor to give evidence at the trial.
There was accordingly no evidence placed
before the court a quo to
gainsay the evidence of De Kock as to what had transpired between him
and the prosecutor at the hearing
of the bail application.
[25]
De Kock testified that, prior to the commencement of the bail
application proceedings, he had a consultation of approximately
10 to
15 minutes with the prosecutor. The purpose was to apprise the
prosecutor of all the information pertaining to S[…]
and the
reasons why bail should be opposed. De Kock testified that he had
provided the prosecutor with the following information:
a)
That S[…] had five previous convictions,
including one of rape. According to De Kock he had not by then
succeeded in obtaining
the official SAP69 record of S[...], but was
in possession of a printout reflecting S[…]’s previous
convictions, which
he handed to the prosecutor.
b)
That S[…]’s minor daughter, aged 12,
whom he had allegedly raped on four occasions, and her mother, were
opposed to
S[...] being released on bail.
c)
That S[...] was a flight risk.
d)
That he was of the view that S[...] should not be
released on bail and that the members of the community shared his
view.
[26]
In his evidence at the bail hearing, S[...] did disclose that he had
previous convictions, including one for rape and four
or five for
assault. He did not provide any details of the rape conviction and
all that the prosecutor asked him during cross-examination
was how
old the victim of the rape was. S[...] replied: ‘Ek dink 34’.
The prosecutor did not attempt to obtain any
information from S[...]
regarding the circumstances of this rape. Nor did he ask S[...] for
any details regarding his other previous
convictions, particularly
whether the convictions for assault were for common or aggravated
assault and whether any weapons were
used. Inexplicably too, the
prosecutor failed to tender in evidence the printout reflecting
S[...]’s previous convictions.
[27]
Apart from the aforesaid, the prosecutor failed to place the
information referred to in para 25 (c) and (d) above before the
court
for consideration by the magistrate. In addition, the prosecutor did
not consider introducing evidence through De Kock, to
show that the
State had a strong case against S[...] for the rapes of his daughter.
In his evidence before the high court, De Kock
testified that the
complainant’s statement showed that the State did have a strong
case against S[...], but at the bail hearing
no attempt was made by
the prosecutor to introduce this statement in evidence. Nor was any
attempt made to obtain a statement from
the child’s mother to
whom the daughter had reported that she had been raped by S[...].
[28]
In his judgment at the conclusion of the bail hearing the magistrate
was extremely critical of the evidence (or rather the
lack thereof)
presented by the State. This led him to conclude that the State did
not have a strong case against S[...]. The magistrate
was also
critical of the fact that he was not presented with a record of the
previous convictions of S[...] and expressed the view
that De Kock
had not properly prepared for the bail application. In the result the
magistrate concluded that S[...] had discharged
the onus of showing
exceptional circumstances, justifying his release, particularly in
view of his (the magistrate’s) impression
that the State had a
weak case against S[...]. He was granted bail, but as mentioned
earlier, he was only released more than a
month later upon proof of
an address where he could reside. Even in that regard the prosecutor
was at fault. He released De Kock
from attendance and made no
endeavour to investigate the various addresses proffered by S[...] as
being available to him. In fact
none of them were suitable addresses.
[29]
In view of the appellant’s failure to call the prosecutor as a
witness in the subsequent trial before the high court,
there is no
explanation tendered for the prosecutor’s failure to place all
the relevant information, referred to above, before
the magistrate. I
share the view of the learned judge a quo, that, had the prosecutor
placed this information before the magistrate,
it would certainly
have had a material bearing on his decision whether or not S[...]
should be released from custody.
[30]
Apart from the prosecutor’s unexplained conduct at the initial
bail hearing, there is also no explanation for the supine
attitude
adopted by him subsequent to the bail hearing. He had by then been
apprised of the magistrate’s concerns regarding
the paucity of
information put before him, yet, for the period of more than a month
thereafter, while S[...] was still in custody
and appeared in court
on three occasions, the prosecutor took no steps at all to obtain
further information relevant to the question
whether S[...] ought to
be released from custody. I find it particularly disconcerting that
no effort was made by the prosecutor
to obtain and place before the
magistrate the official SAP69 record of S[...], which had in the
meantime been received by De Kock
on 1 June 2007.
[31]
S[...]’s previous convictions spanned the period March 1983 to
January 1999. When convicted of rape in January 1999 he
was sentenced
to seven years’ imprisonment. His criminal record shows that,
while serving his sentence for rape, he was released
on parole, but
was subsequently readmitted to prison on 19 February 2005 to serve
the remaining 330 days of his sentence. This
apparently followed upon
a breach of his parole conditions. He was finally released on 18 July
2005 upon the expiry of his sentence
and during 2006-2007 he raped
his minor daughter on four occasions and then abducted and brutally
raped the respondent’s
five year old daughter. Had S[...]’s
criminal record been presented to the court when it became available
on 1 June 2007,
the magistrate would have been alerted to the real
likelihood of S[...] breaching his bail conditions if he were to be
released
from custody.
[32]
The mere fact that, during his subsequent appearances, S[...] had
difficulty in providing an acceptable address where he could
reside,
ought to have sounded a warning to the prosecutor. This substantiated
De Kock’s initial view, which he had conveyed
to the
prosecutor, that S[...] was a flight risk. S[...] ultimately provided
an affidavit deposed to by a person not known to anyone,
namely one
Flink, who declared that he was prepared to put S[...] up. The
prosecutor accepted the affidavit without any attempt
to have the
suitability of this person and the address established, particularly
in circumstances where the complainant (S[...]’s
daughter) was
residing in the same magisterial district.
[33]
As was stressed in
Carmichele
(CC)
para 74, each case must ultimately depend on its own facts. On the
salient facts detailed above, I have no hesitation in concluding
that
the prosecutor owed the general public, and in particular the
respondent and her minor daughter, a legal duty to take all
reasonable steps to prevent S[...]’s release. The prosecutor
was faced with the possible release of a convicted rapist, accused
of
having raped his 12 year old daughter on four occasions in the recent
past. Apart from being a convicted rapist, S[...] had
a number of
previous convictions for assault, indicating his tendency to resort
to violence. He had no fixed abode and was considered
to be a flight
risk. In these circumstances, the legal convictions of the community
would certainly demand the imposition of a
legal duty requiring the
prosecutor to do everything in his power to prevent S[...]’s
release, by placing all the information
relevant to the exercise of
the discretion with regard to the grant or refusal of bail, before
the magistrate.
[34]
In
Carmichele
(SCA)
para 44, it was emphasised that foreseeability of harm is a factor to
be taken into account in determining wrongfulness. The
greater the
foreseeability, the greater the possibility of a legal duty to
prevent harm existing. A reasonable prosecutor would,
in my view,
have foreseen that, if this potentially violent convicted rapist, who
was now accused of raping his 12 year old daughter
on four occasions,
were to be set free, he would probably be inclined to rape others,
particularly young girls to whom he may have
access. The respondent
and, in particular, her young daughter, were members of the public to
whom this legal duty was owed to protect
their right to be free from
violence perpetrated on them by S[...].
[35]
Turning to the requirement of negligence, a reasonable prosecutor
would, in the prevailing circumstances, undoubtedly have
foreseen the
reasonable possibility that if he or she were to fail to place all
relevant information before the magistrate, S[...]
might be granted
bail. Furthermore, as I have already found in dealing with the
element of wrongfulness, a reasonable prosecutor
would have foreseen
the reasonable possibility of S[...], if released on bail, causing
bodily injury to vulnerable members of the
community, particularly
women and young children.
[36]
I accordingly find that, in the prevailing circumstances, a
reasonable prosecutor would have taken steps to place all relevant
information before the magistrate to prevent S[...] from being
released from custody. The prosecutor failed dismally in his duty
to
take such steps during and subsequent to the bail application
hearing. His failure to do so remains unexplained by virtue of
the
appellant’s failure to call him as a witness at the trial in
the court below. It follows that the prosecutor’s
conduct fell
far short of the standard of the reasonable person and was negligent.
[37]
In considering the requirement of causation I have no doubt that, had
the prosecutor placed all the available relevant information
before
the court at the original bail hearing, or at a subsequent
re-hearing, the magistrate would not have ordered S[...]’s
release, and the resultant abduction and rape of the respondent’s
minor child would not have taken place. In the circumstances
the
requirements for the establishment of both factual and legal
causation have been met.
[38]
As mentioned earlier, it was submitted on behalf of the appellant
that, in any event, the magistrate erred in finding that
S[...] had
on the evidence before the court discharged the onus of showing that
he should be granted bail. In my view, this is
a self-serving
argument which does not assist the appellant. What the respondent has
proved is that, had the prosecutor (as he
was lawfully obliged to do)
placed all the relevant information before the magistrate at the bail
hearing, or at a subsequent re-hearing,
the release of S[...] would
probably have been prevented. Therein lies the negligent dereliction
of duty by the prosecutor and
the question whether or not the
magistrate had erred in granting S[...] bail on the basis of the
incomplete evidence placed before
him, is legally irrelevant.
Section
42 of the NPA Act
[39]
I now deal with the appellant’s belated reliance on s 42 of the
NPA Act. The section reads as follows:
‘
Limitation of liability
No person shall be liable in respect
of anything done in good faith under this Act.’
[40]
This defence was not raised in the appellant’s pleadings.
Counsel for the appellant submitted that it was not necessary
to do
so, as it is a matter of law which has to be considered irrespective
of whether or not it has been pleaded. In fact, counsel
contended, it
is the respondent who bears the onus of proving that the prosecutor
had failed to act in good faith.
[41]
I do not agree. To my way of thinking, s 42 of the NPA Act seeks to
introduce a ground of justification for conduct which is
prima facie
wrongful. Therefore, wrongful conduct that would otherwise give rise
to delictual liability, may be justified and rendered
lawful by
virtue of the statutory immunity conferred in terms of s 42 of the
NPA Act. It is a defence specifically directed at
the wrongfulness
element of delictual liability. It is trite that, in the case of a
defence of this nature, the onus rests on the
defendant (the
appellant in this instance) to plead and prove the defence. See J R
Midgley & J C van der Walt ‘
Delict
’
in
Law of South Africa
2 ed Vol 8, Part I para 86, read with the authorities cited at note
1.
[42]
Apart from failing to plead this defence, no evidence was tendered by
either party in regard thereto. The respondent objected
to the
raising of this new defence on appeal, in that, apart from not being
covered by the pleadings and the evidence, its consideration
at this
late stage involves unfairness to the respondent. See
Cole
v Government of the Union of South Africa
1910
AD 263
at 272 and
Paddock Motors (Pty) Ltd v
Igesund
1976 (3) SA 16
(A) at 23D-F.
[43]
I have no doubt that, had this defence been properly pleaded by the
appellant, the course of the trial would have been fundamentally
different. The appellant as the party bearing the onus of proving
this defence would certainly, if it wished to discharge the onus,
have been bound to call the prosecutor as a witness to demonstrate
his good faith. Apart from calling witnesses in rebuttal, one
can
imagine that the respondent’s legal representatives would have
covered several issues relating to the s 42 defence with
the
prosecutor once he entered the witness box.
[44]
It would certainly be grossly unfair to the respondent if the
appellant were to be entitled to raise the s 42 defence at this
late
stage. Therefore, the interests of justice dictate that the appellant
should not be allowed to do so.
[45]
Further, and in any event, I am of the view that, for the following
reasons, a defence based on s 42 of the NPA Act has no
merit. In
Simon’s Town Municipality v Dews & another
[1992] ZASCA 165
;
1993 (1)
SA 191
(A), a statutory defence of this nature, based upon a
similarly worded statutory provision, namely s 87 of the Forest Act
122 of
1984 (now repealed), was raised. This section read as follows:
‘
No person, including the State,
is liable in respect of anything done in good faith in the exercise
of a power or the carrying out
of a duty conferred or imposed by or
under this Act.’
[46]
Corbett CJ, writing for the court, concluded that the relevant
statutory provision had to be interpreted against the general
background of the law relating to statutory authority as a defence to
a delictual claim. In terms of this defence, conduct which
would
otherwise give rise to delictual liability, may be justified and
rendered lawful by the fact that it consists of the exercise
of a
statutory power. See also
Johannesburg City
Council v Television & Electrical Distributors (Pty) Ltd &
another
1997 (1) SA 157
(A) at 164I-165H.
[47]
However, the learned Chief Justice further emphasised (at 196B-E)
that the person exercising the statutory power is under a
duty to use
due care and to take all reasonable precautions to avoid or minimise
injury to others. The failure to exercise the
statutory power with
due care and without having taken reasonable precautions to avoid or
minimise injury to others, renders the
conduct of the repository of
the statutory power unlawful.
[48]
With regard to s 87 of Act 122 of 1984, it was held (at 196G-H) that
it postulates two requirements for legal immunity: (a)
the act in
question must have been done in good faith, and (b) it must have been
done in the exercise of a power or duty under
the Act.
[49]
As to the requirement of ‘good faith’, it was held (at
196H-I) that it relates to the subjective state of mind
of the
repository of the power and, broadly-speaking, requires that, in
exercising the power, he or she should have acted bona
fide, honestly
and without ulterior motive.
[50]
With regard to the second requirement for legal immunity, Corbett CJ
said the following (at 196J-197A):
‘
As to (b), it seems to me that
the section is clear. The person sought to be held liable must show
that he acted within the authority
conferred by the power in
question. It necessarily follows that if, owing to a failure to
exercise due care or to take reasonable
precautions, he exceeded the
power and acted without authority, he will be unable to establish
requirement (b) and his reliance
on s 87 must fail.’
[51]
I should add that it was held (at 196H and 197C, respectively) that a
person seeking to rely on s 87 bears the onus of establishing
that
his or her conduct falls within the ambit of the section and that the
onus of establishing the requirement of good faith would
also be on
the party claiming immunity.
[52]
Returning to s 42 of the NPA Act and in view of the principles
outlined above, it has to be borne in mind that, in terms of
s 20 of
the NPA Act, the prosecuting authority and accordingly also the
prosecutor involved in this matter are clothed with the
statutory
power to institute and conduct criminal proceedings and matters
incidental thereto on behalf of the State. Where s 42
refers to
‘anything done . . . under this Act’, it by necessary
implication refers to the powers conferred in terms
of s 20 of the
NPA Act. A prosecutor exercising this power and wishing to avail him
or herself of the immunity afforded by s 42
is required to show that
he or she acted within the authority conferred by the power in
question, which, in turn, requires him
or her to have taken all
reasonable precautions to avoid or minimise injury to others. A
failure to do so would render his or her
conduct unlawful and the
reliance on s 42 of the NPA Act would therefore fail.
[53]
Even if it is accepted, without so deciding, that the prosecutor in
this case acted bona fide, it is abundantly clear that
he had failed
to use due care and to take all reasonable precautions to avoid or
minimise injury to the respondent and her minor
daughter. His
negligent failure to place all relevant information before the
magistrate resulted in S[...] being released from
custody, thereby
allowing him the opportunity to abduct and rape the minor child. This
negligent conduct would preclude the appellant
from relying on the
ground of justification created by s 42 of the NPA Act.
Liability
for the respondent’s emotional shock
[54]
I now turn to the appellant’s contention that the respondent
failed to prove that she has suffered a psychiatric injury
or
emotional shock as a consequence of the abduction and rape of her
minor daughter. In my view, there is no merit in this submission.
The
clinical psychologist, Ms Lategan, testified that, subsequent to the
abduction and rape, she treated the child and in the process
observed
the respondent who was always present. Although her main focus was
the welfare of the child, she necessarily had to deal
with both of
them. According to her the respondent has suffered severe
post-traumatic stress as a result of this incident, which
will endure
for the rest of her life.
[55]
The appellant did not present any evidence, expert or otherwise, in
rebuttal. Had it wished to do so all that it needed to
do was to
invoke the provisions of rules 36(1) to (5) but the respondent did
not do so. I therefore agree with Yekiso J that the
respondent has
established the existence of a psychological injury or emotional
shock for purposes of the merits of her claim in
her personal
capacity.
[56]
In the result the appeal falls to be dismissed.
[57]
Finally, with regard to costs, it was submitted on behalf of the
respondent that the appeal has been brought on spurious grounds,
which justifies the granting of a punitive costs order against the
appellant. I do not believe that it can be said that the grounds
of
appeal are spurious. On the contrary, Yekiso J granted appellant
leave to appeal on the basis that a reasonable prospect of
success
exists. In the circumstances a punitive costs order is not justified.
I am, however, of the view that the matter justified
the employment
of two counsel.
[58]
The following order is made:
The
appeal is dismissed with costs, including the costs of two counsel,
where employed.
_________________
P
B Fourie
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant: J van der Schyff
Instructed
by:
Brink
& Thomas, Cape Town
Matsepes
Attorneys, Bloemfontein
For
the Respondent: A de Vos SC (with her A F Schmidt)
Instructed
by:
Johan
Wagener Inc, Oudtshoorn
Webbers,
Bloemfontein