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[2014] ZASCA 130
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Minister of Safety and Security v Tyokwana (827/13) [2014] ZASCA 130; 2015 (1) SACR 597 (SCA) (23 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No:
827/13
Reportable
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY
..................................................................
APPELLANT
and
VUYOLWETHU
TYOKWANA
...................................................................................
RESPONDENT
Neutral
citation:
Minister
of Safety and Security v Tyokwana
(827/13)
[2014] ZASCA 130
(23 September 2014)
Coram:
Brand, Tshiqi, Saldulker JJA and
Fourie and Mathopo AJJA
Heard:
25 August 2014
Delivered:
23 September 2014
Summary:
Delictual claim ─ Unlawful
arrest, detention and malicious prosecution ─ Police aware that
no evidence available upon
which the respondent could be successfully
prosecuted ─ Police failed to inform prosecutor and the court
of lack of evidence
─ As a result the appellant refused bail
and remanded in custody until acquittal 22 months later ─
Detention unlawful
and in breach of right to freedom in terms of s
12(1)
(a)
of the Constitution ─ Orders of
magistrate not rendering detention lawful ─ Appellant liable to
compensate respondent
for full period of detention.
ORDER
On
appeal from:
Eastern
Cape High Court, Grahamstown (Sandi J sitting as court of first
instance)
The
appeal is dismissed with costs, including the costs of two counsel,
where employed.
JUDGMENT
Fourie
AJA (
Brand,
Tshiqi, Saldulker JJA and Mathopo AJA
concurring):
[1]
This is an appeal against the part of the order of the Eastern Cape
High Court, Grahamstown (Sandi J), declaring the appellant
liable to
compensate the respondent for such damages as he may have suffered as
a consequence of his unlawful arrest, detention
and subsequent
malicious prosecution by members of the South African Police Service
(the SAPS), acting within the course and scope
of their employment
with the appellant. The appeal is with the leave of the court a quo.
[2]
On 2 October 2007 the respondent, a 19-year old male, as well as
Messrs Hanise and Bokisa, washed motor vehicles at the Kenton-on-Sea
police station as part of their community service sentences. One of
the vehicles was a police vehicle which had been allocated
to Warrant
Officer Kani (Kani) of the Kenton-on-Sea police. In the course of the
afternoon, Kani arrested the respondent for the
theft of his (Kani’s)
firearm which had allegedly been stolen from the cubbyhole of Kani’s
vehicle. The respondent
denied any involvement in the theft of the
firearm, but was detained in the cells at the Kenton-on-Sea police
station.
[3]
On 4 October 2007 the respondent appeared in the local magistrates’
court, represented by an attorney. A plea of guilty
was tendered on
his behalf on three counts, ie the theft of a firearm; the unlawful
possession thereof and the unlawful possession
of fifteen rounds of
ammunition. He was convicted and the case was postponed to 19 October
2007 for sentence. The magistrate ordered
the respondent’s
further detention. On 19 October 2007 the respondent’s attorney
withdrew and the case was postponed
to 5 November 2007 at the request
of the respondent’s new attorney, to enable him to obtain
instructions. The magistrate
ordered the respondent’s further
detention.
[4]
On 5 November 2007 the respondent’s new attorney applied, in
terms of s 113(1) of the Criminal Procedure Act 51 of
1977 (the
CPA), for the correction of the respondent’s plea of guilty to
one of not guilty, on the basis that ‘beskuldigde
beweer hy was
beïnvloed om skuldig te pleit en omdat hy bang was’. The
magistrate recorded a plea of not guilty, postponed
the case to 6
November 2007, and ordered the respondent’s further detention.
On the latter date a further postponement was
ordered, to 19 December
2007, with the respondent to remain in custody.
[5]
On 19 December 2007 the magistrate refused the respondent’s
application for bail and the matter was remanded for trial
with the
respondent to remain in detention. It is not evident what the cause
of the subsequent delay was, but the trial only commenced
on 20 July
2009, when the respondent was acquitted on all charges.
[6]
On 1 October 2009 the respondent issued summons against the appellant
for the payment of damages suffered as a consequence of
the events of
2 October 2007 and their aftermath. The action was defended and it
was ordered that the issue of liability be determined
first. In the
event, the trial proceeded before Sandi J. The heads of damages
comprising the respondent’s claim are set out
hereunder.
Wrongful
and unlawful assault
[7]
The nature of the assault perpetrated on the respondent by different
members of the SAPS at Kenton-on-Sea is detailed in the
particulars
of claim. In its plea the appellant denied any assault on the
respondent. However, at the commencement of the trial,
the appellant
formally admitted that:
‘
On
2 October 2007 and at the Kenton-on-Sea police station warrant
officer Kani hit the plaintiff on his head thereby causing the
injuries on his head and the bruising on his shoulders as listed in
the J88 that Sister Rijkers prepared on 11 October 2007.’
[8]
In her J88 medical report Sister Rijkers, who examined the respondent
on 2 October 2007, noted three lacerations on the right
side of his
head, one on the left side of the head, four on the forehead and two
at the back of the head. All of these lacerations
were sutured. In
addition, she noted bruising on both shoulders in the post-scapula
area, as well as a slight swelling of the left
knee.
[9]
I should add that, in his evidence in the high court, Kani explained
that he hit the respondent with a broomstick on the head,
while the
respondent testified that Kani, inter alia, used a knobkierie to
assault him. In view of the appellant’s admission
that the
respondent had been assaulted it is not necessary, for present
purposes, to dwell on this issue. I will in due course
in evaluating
the evidence, refer to the nature and extent of the assault
perpetrated on the respondent.
Wrongful
and unlawful arrest
[10]
It is common cause that Kani, acting within the course and scope of
his employment with the appellant, arrested the respondent
on 2
October 2007, without a warrant of arrest. As justification for the
arrest the appellant relies on s 40(1)
(b)
of the CPA, which
provides that a peace officer, such as Kani, may without warrant
arrest any person whom he reasonably suspects
of having committed an
offence referred to in Schedule 1 of the CPA. The crime of theft is
one of the offences listed in Schedule
1. To succeed with this
defence the appellant is required to establish that Kani entertained
a suspicion based on reasonable grounds
that the respondent had
committed a Schedule 1 offence.
[11]
Suspicion, by definition, means absence of certainty. As was
explained in
Minister of Law and Order v Kader
1991 (1) SA 41
(A) at 50H, it ‘is a state of conjecture or surmise where proof
is lacking. . . . Suspicion arises at or near the starting
point of
an investigation of which the obtaining of prima facie proof is the
end’.
Wrongful
and unlawful detention
[12]
If the arrest of the respondent was unlawful it would follow that his
subsequent detention was also unlawful. However, the
appellant
submitted that such unlawful detention would, in any event, have
ceased on 4 October 2007, when the magistrate ordered
the
respondent’s further detention. Alternatively, the appellant
submitted that, if it is found that the respondent’s
detention
remained unlawful even after 4 October 2007, such unlawful
detention ceased on 19 December 2007 when the magistrate
dismissed
the respondent’s application for bail.
Malicious
prosecution
[13]
It is common cause that Kani, acting within the course and scope of
his employment with the appellant, instigated the criminal
proceedings against the respondent. The prosecution failed upon the
acquittal of the respondent on 20 July 2009. To succeed with
the
claim for malicious prosecution, the respondent has to prove the
absence of reasonable and probable cause for the prosecution
and that
Kani instigated the legal process with malice or
animo iniuriandi
.
See
Minister for Justice and Constitutional Development v Moleko
2009 (2) SACR 585
(SCA) para 8.
[14]
With regard to the absence of reasonable and probable cause for the
prosecution, the following was said in
Beckenstrater v Rottcher
and Theunissen
1955 (1) SA 129
(A) at 136A-B:
‘
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff’s guilt, a subjective element
comes into play and disproves the existence, for the defendant, of
reasonable and probable cause.’
[15]
In
Relyant Trading (Pty) Ltd v Shongwe and Another
[2007] 1
ALL SA 375
(SCA) para 5, this court held that, ‘although the
expression “malice” is used, it means, in the context of
the
actio iniuriarum
,
animus iniuriandi
’. In this
regard
animus iniuriandi
means that the defendant, while being
aware of the absence of reasonable grounds for the prosecution,
directs his or her will to
prosecuting the plaintiff. If no
reasonable grounds exist, but the defendant honestly believes either
that the plaintiff is guilty,
or that reasonable grounds are present,
the second element of
animus iniuriandi
, namely consciousness
of wrongfulness, will be lacking. See J Neethling, J M Potgieter
and P J Visser Neethling’s
Law of Personality
2ed (2005)
at 125 and
Moaki v Reckitt and Colman (Africa) Ltd and Another
1968 (3) SA 98
(A) at 105B-C.
[16]
In
Minister for Justice and Constitutional Development v Moleko
,
supra, at para 64, this court said the following with regard to the
element of
animus iniuriandi
:
‘
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as to
the consequences of
his or her conduct (
dolus
eventualis
).’
Discussion
[17]
In his order, Sandi J declared the appellant liable to pay the
respondent’s damages ‘in respect of assault, unlawful
arrest, detention and malicious prosecution’. As I have earlier
indicated, the appeal is not directed at the order in respect
of the
assault perpetrated on the respondent. With regard to the detention
of the respondent, it is not clear from the order whether
the learned
judge a quo held the appellant liable for the entire period of the
respondent’s detention. However, the court
a quo subsequently
clarified this aspect when granting the appellant leave to appeal,
inter alia, on the ground whether or not
the appellant is liable for
the respondent’s ‘entire period of detention’
.
[18]
At the outset, it is necessary to emphasise the finding of the court
a quo that Kani, who was the only witness to testify on
behalf of the
appellant, was a poor witness whose evidence falls to be rejected. A
reading of the record illustrates the unreliability
of Kani as a
witness. In fact, the submission on behalf of the respondent that he
was a serial liar, is fully justified. Not only
was his evidence
riddled with untruths and improbabilities, but he persisted in
changing his ground and when confronted with material
discrepancies
in his evidence, he habitually resorted to the feeble excuse of
having been ‘under stress’. Also, the
appellant has not
attacked the credibility of the respondent and his witnesses,
especially where their evidence differs from or
is contradicted by
Kani.
[19]
It is not necessary to analyse Kani’s evidence in any great
detail to illustrate his unreliability, but the following
instances
may be highlighted:
(a)
In his police statement Kani denied having assaulted the respondent.
This denial was repeated in the appellant’s pleadings.
However,
when faced with objective evidence of Kani’s vicious assault
upon the respondent, it was, at the onset of the trial,
admitted that
the respondent had been assaulted.
(b)
Kani belatedly admitted to having inflicted the injuries reflected in
the J88 medical report of Sister Rijkers, but in evidence
denied any
further assault upon the respondent. However, during
cross-examination, he conceded that, in addition to the ten sutured
lacerations identified by Sister Rijkers, the respondent had
sustained at least three other lacerations which had to be sutured,
as well as an abrasion under the left eye.
(c)
In his evidence in the magistrates’ court, Kani testified that
the respondent had told him (Kani) that he had been injured
in an
assault in the township, while the injuries to the respondent’s
head and face were occasioned by Kani himself. To this
should be
added the evidence of the respondent that Kani had instructed him to
give this false version in his evidence to the magistrate.
(d)
Kani’s evidence as to the absence of extensive bloodstains on
the respondent and his clothing, is gainsaid by the undisputed
evidence of the respondent’s parents and the witness Fogarty.
(e)
Kani’s version as to the events which gave rise to the charge
which he preferred against the respondent, is so improbable
that it
can safely be rejected out of hand. He also changed and adapted this
version whenever it suited him during his evidence.
In particular, it
is difficult to extract a coherent version of Kani’s regarding
the chronology and timing of the events.
(f)
On Kani’s version he locked and activated the alarm of his
vehicle when he went into his office, yet the respondent is
alleged
to have removed Kani’s firearm from the cubbyhole of the locked
vehicle with the alarm inexplicably and improbably
failing to go off.
However, when testifying in the magistrates’ court, Kani said
that he had left the vehicle open to enable
the inside to be cleaned.
(g)
Kani’s version of the alleged pointing out of the firearm by
the respondent is not only seriously unconvincing, but contradicted
by the statements obtained from Hanise and Bokisa. In his written
statement and in the official occurrence book, Kani recorded
that his
firearm was found ‘under the seat’ in the toilet, but
according to his testimony in the high court, it was
found under the
outlet pipe leading to the wall of the toilet.
[20]
It follows from the aforegoing, that there is barely any aspect of
Kani’s evidence that remains unscathed, with the result
that it
is incapable of credence and was correctly rejected by the court a
quo.
[21]
In his evidence the respondent denied all knowledge of the alleged
theft of Kani’s firearm. He described the vicious
assault upon
him by Kani and other members of the police, in an attempt to coerce
him to admit to the theft of the firearm. In
his warning statement he
expressly stated ‘ek het nie die vuurwapen gesteel nie’.
[22]
When testifying, the respondent gave a graphic account of the
prolonged assault to which he was subjected by Kani and at least
three other members of the SAPS stationed at Kenton-on-Sea. He was
dealt numerous blows to the head with Kani’s knobkierie;
he was
forced to the ground on two occasions with the policemen then
stomping and standing on his chest and neck; he was hit with
a police
baton; he was kicked in the area of his genitals and his testicles
were forcefully squeezed; he was hit with a fist which
caused a wound
to his eye; his eyes were sprayed with pepper spray; he was hosed
down with cold water; he was forced into a scalding
hot shower;
boiling water was poured over his feet, and so the sad tale
continued. There is no reason to doubt this evidence of
the
respondent, as Kani’s admission that he had dealt the
respondent 14 blows to the head and the evidence of the respondent’s
parents, serve as corroboration of the vicious assault perpetrated on
him.
[23]
The respondent was detained in the police cells, with Kani continuing
to put pressure on him to admit to the theft of the firearm.
On the
morning of his first appearance in the magistrates’ court, Kani
convinced the respondent that he should plead guilty,
by promising
the respondent that he would then let him go free. Kani, however,
reneged on this undertaking. Kani accompanied the
respondent to the
magistrates’ court where he (Kani), ironically, was on duty as
the court orderly.
[24]
Apart from the forced admission of guilt extracted from the
respondent by viciously assaulting him, the appellant relies on
information obtained by Kani from Hanise and Bokisa, prior to the
respondent’s arrest, that they had seen the respondent
removing
the firearm from Kani’s vehicle. Hanise deposed to an affidavit
to that effect at 16h20 on 2 October 2007, while
Bokisa deposed to a
similar affidavit the next day. However, the evidence strongly
suggests that the police (and in particular
Kani) obtained this
evidence from Hanise and Bokisa by forceful means.
[25]
It is recorded in the occurrence book kept at the Kenton-On-Sea
police station, that at 17h35 on 2 October 2007 the respondent
and
Hanise were booked into the cells while ‘both have various
wounds on body and head, sustained before detention’.
There is
no suggestion in the evidence that the respondent or Hanise had
sustained any injuries prior to their detention on 2 October
2007. On
the contrary, the overwhelming probability is that they sustained
their respective injuries during the course of the afternoon
of 2
October 2007, at the Kenton-On-Sea police station, after Kani had
established that his firearm was missing.
[26]
The answer as to the cause of the injuries sustained by the
respondent and Hanise, was provided by Hanise in his evidence at
the
trial in the magistrates’ court, namely:
‘
Hulle
(the police) het ons aanhoudelik aangerand, vir die hele dag, want
hulle vra vir ons waar die vuurwapen is. . . . Ons sê
vir hulle
dat ons nie kennis dra van die vuurwapen nie.’
This
evidence was confirmed by the respondent in his testimony in the high
court, as well as the contents of two subsequent affidavits
deposed
to by Hanise and Bokisa, in which they confirmed that their injuries
were caused by the police assaulting them, in their
quest to find
someone to blame for the disappearance of Kani’s firearm.
[27]
I should add that, in his evidence in the magistrates’ court,
Hanise denied seeing the respondent steal the firearm.
Furthermore,
Hanise and Bokisa have subsequently sued the appellant for the
payment of damages suffered as a consequence of injuries
sustained by
virtue of being assaulted by members of the Kenton-On-Sea police.
Therefore, the overwhelming probability is that
the information and
affidavits initially obtained from Hanise and Bokisa, blaming the
respondent for the theft of Kani’s
firearm, were extracted from
them by forceful means by Kani and his fellow police officers.
[28]
At all material times, Kani was aware that Hanise and Bokisa had been
subjected to assaults in order to obtain their co-operation
to
provide statements falsely implicating the respondent. He was also
aware that any admission or pointing out by the respondent
was only
brought about by the continuous brutal assaults perpetrated on him.
In these circumstances, the court a quo correctly
concluded that the
appellant had failed to establish that Kani did, at the time of the
arrest of the respondent, entertain a suspicion
based on reasonable
grounds that the respondent had committed a Schedule 1 offence.
Therefore, the arrest was unlawful.
[29]
In instigating the prosecution of the respondent, Kani was fully
aware of the absence of any credible evidence linking the
respondent
to the theft of the firearm. Yet, he submitted a false statement
denying any assault and duress on the respondent, while
failing to
inform the presiding magistrate that the respondent had been
subjected to a brutal and sustained assault by the police
and that
his visible injuries were in consequence of this assault. In fact, he
persuaded the respondent to provide a false version
as to the origin
of his injuries to the magistrate. In these circumstances, Kani was
not only aware of the absence of reasonable
grounds for the
prosecution, but could not have had any honest belief that the
respondent was guilty. Yet, he wrongfully persisted
with and actively
encouraged the prosecution of the respondent, reckless as to the
consequences of his conduct.
[30]
In the court a quo, Kani conceded that, when Hanise and Bokisa
deposed to their later affidavits on 9 October 2007, it was
clear
that their initial statements, implicating the respondent, were
false. He conceded that they were the only two witnesses
who could
implicate the respondent in the criminal case against him for the
theft of the firearm, yet he took no steps to advise
the prosecutor
that, in the circumstances, there was no point in pursuing the
prosecution against the respondent. In view thereof,
his instigation
of the respondent’s prosecution and his perpetuation thereof,
was malicious.
[31]
This brings me to the issue of the respondent’s detention. The
authority of the police to detain a person is inherent
in the power
of arrest. Therefore, if the arrest is unlawful, the resultant
detention is similarly unlawful. What remains to be
considered is
whether or not the appellant ought to have been held liable for the
full period of the respondent’s detention,
from 2 October 2007
to 20 July 2009.
[32]
The appellant contends that the unlawful detention of the respondent
ceased when the magistrate ordered his further detention.
In this
regard the appellant relies on the judgment in
Isaacs v Minister
van Wet en Orde
1996 (1) SACR 314
(A), in which this court found
that a detainee’s continued detention pursuant to an order of
court remanding him in custody
in terms of s 50(1) of the CPA, was
lawful notwithstanding the fact that it had followed upon his
unlawful arrest.
[33]
In the court a quo, Sandi J relied on the decision in
Mthimkhulu &
another v Minister of Law and Order
1993 (3) SA 432
(E), where
Nepgen J held as follows at 438C-F:
‘
In
any event, I do not see how the mere fact that the further detention
of the plaintiffs occurred pursuant to an order made by
the
magistrate in terms of section 50(1) of Act 51 of 1977 can render
such detention lawful where the arrest, which resulted in
such
detention being ordered, was unlawful. The prior arrest of a person
is a prerequisite to the provisions of the subsection
coming into
effect. If such arrest is unlawful, it is not a valid arrest.
Whatever occurs pursuant to such arrest is therefore,
in my view,
invalid and unlawful.’
However,
in
Isaacs
at 323I-J, this court held that the dictum in
Mthimkhulu
at 438C-F was wrongly decided.
[34]
In his judgment, Sandi J acknowledged that he was aware of the
judgment in
Isaacs
, but added ‘I think that this
judgment has been overtaken by the Constitution and other judgments’.
The learned judge
did not elaborate on this view. As submitted on
behalf of the appellant, the judgment in
Isaacs
has not been
overruled by the Constitutional Court or this court.
[35]
In
Isaacs
the appellant was wrongfully arrested and he
contended, relying on the above dictum in
Mthimkhulu
, that,
whatever occurs pursuant to an unlawful arrest, is invalid and
unlawful. Therefore, the argument went, the subsequent detention
of
the appellant by virtue of an order of court remanding him in custody
in terms of s 50(1) of the CPA, was similarly unlawful.
[36]
E M Grosskopf JA, writing for the court in
Isaacs
, defined the
crucial issue which had to be decided, as follows at 321g:
‘
Die
wesentlike vraag vir beslissing is dus of die appellant se
onregmatige inhegtenisneming die gevolg gehad het dat sy aanhouding
ingevolge die landdros se bevel van 22 Februarie ook onregmatig was.’
At
322g the learned judge of appeal summarised the submission on behalf
of the appellant, as follows:
‘
Sy
betoog is ‘n jurisdiksionele een. Dit lui soos volg. Artikel
50(1) geld alleen ten opsigte van iemand wat “in hegtenis
geneem” is. Hierdeur word bedoel n regsgeldige
inhegtenisneming. Waar daar geen geldige inhegtenisneming was nie,
kan art
50(1) nie toegepas word nie. Die verdere aanhouding en alles
wat daarop volg is dan net so ongeldig as die oorspronklike gepoogde
inhegtenisneming.’
[37]
The learned judge of appeal further held as follows at 323h-i:
‘
Ek
meen dus dat waar art 50(1) praat van iemand wat “in hegtenis
geneem” is, dit nie beperk is tot ‘n regmatige
inhegtenisneming nie. Dit sluit iemand in wat, in ‘n gepoogde
uitoefening van arrestasie-bevoegdhede, onder die arresteerde[r]
se
beheer gebring is. Dit volg dat die aanval op die landdros se
regsbevoegdheid in die onderhawige geval ongegrond is en dat die
bevel vir die verdere aanhouding van die appellant binne sy
regsbevoegdheid geval het en geldig was. Die blote feit dat die
appellant
se inhegtenisneming onregmatig was, kan nie daaraan afdoen
nie.’
[38]
To summarise, what was decided in
Isaacs
, is that the prior
lawful arrest of a person is not a prerequisite to the provisions of
s 50(1) of the CPA coming into effect.
Put differently, it was held
that the fact that the person may have been arrested unlawfully, does
not preclude him or her from
being remanded lawfully in terms of s
50(1) of the CPA. However, what was not held in
Isaacs
, is
that an arrested person’s continued detention by virtue of an
order of court remanding him or her in custody in terms
of s 50(1) of
the CPA, will automatically render such continued detention lawful.
This was not an issue that the court in
Isaacs
was called upon
to adjudicate.
[39]
I believe that the question whether the orders of the magistrate
remanding the respondent in custody and refusing him bail,
rendered
his subsequent detention lawful or not, has to be answered with
regard to the peculiar facts of this case. The salient
facts are:
(a)
Kani knew that there was simply no evidence upon which the respondent
could be successfully prosecuted. He was aware that the
initial
statements of Bokisa and Hanise were obtained under duress and were
false. He was also aware that the respondent, who had
been subjected
to a serious and sustained assault at the hands of the police, did
not tell the truth to the magistrate, but, at
Kani’s
insistence, misinformed the court as to the theft of the firearm and
the origin of his injuries.
(b)
The investigating officer, Warrant Officer Muller, was similarly
aware of the subsequent statements of Bokisa and Hanise, recanting
their original version, as well as the fact that the respondent had
laid a charge of assault against Kani. He failed to bring this
crucial evidence to the attention of the prosecutor or the
magistrate.
(c)
Kani and Warrant Officer Muller recommended that bail for the
respondent be opposed, by completing a bail information form in
which
material untruths were recorded regarding the question whether the
respondent would stand his trial or constitute a flight
risk.
(d)
Due to Kani and Muller’s failure to inform the prosecutor
and/or the magistrate of the true facts, the latter were not
given a
proper opportunity to apply their minds to the question whether or
not the respondent should be remanded in custody or
be granted bail.
Had the prosecutor and the magistrate been apprised of all the
relevant facts and circumstances, it is inconceivable
that the
prosecutor would have permitted the prosecution to proceed, or that
the magistrate would have refused bail.
(e)
The prosecution of the respondent and its perpetuation, particularly
at the instance of Kani, was malicious and aimed at depriving
the
respondent of his liberty. It constituted a wrongful and improper use
of the court process to deprive the respondent of his
liberty.
[40]
It has often been stressed by our courts, that the duty of a
policeman who has arrested a person for the purpose of having
him or
her prosecuted, is 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. See
Prinsloo and another v Newman
1975 (1) SA 481
(A) at 492G and 495A and
Minister for Justice and
Constitutional Development v Moleko
, supra, at para 11. In
Carmichele v Minister of Safety and Security and another
[2001] ZACC 22
;
2001
(4) SA 938
(CC) para 63, it was held that the police has a clear duty
to bring to the attention of the prosecutor any factors known to them
relevant to the exercise by the magistrate of his discretion to admit
a detainee to bail.
[41]
It brooks no argument that Kani, as well as Muller, failed dismally
to give a fair and honest statement of the relevant facts
to the
prosecutor and to bring all the relevant circumstances under the
attention of the magistrate. On the contrary, they wilfully
distorted
the truth, thereby misleading the prosecutor and the magistrate with
the result that the respondent was remanded in detention
and refused
bail, and remained in custody until his acquittal on 20 July 2009.
[42]
In considering the respondent’s delictual claim for damages
pursuant to his wrongful detention, it is clear that his
constitutional right to freedom and security of the person, as
enshrined in s 12 of the Constitution, was unjustifiably and
unreasonably
violated by the employees of the appellant, and in
particular by the malicious conduct of Kani. Section 12(1)
(a)
of the Constitution guarantees everyone the right to freedom and
security of his or her person, including the right not to be deprived
of his or her freedom without just cause.
[43]
In
Zealand v Minister of Justice and Constitutional Development
[2008] ZACC 3
;
2008 (4) SA 458
(CC), a claim for delictual damages for
wrongful detention was considered and it was held that the detention
of the plaintiff for
the entire period of his incarceration was
unlawful, in that s 12(1)
(a)
of the Constitution was
unjustifiably and unreasonably violated. In
Zealand
the
continued detention of the plaintiff also followed upon court orders
remanding him in custody. At para 52 the constitutional
court
concluded as follows:
‘
I
can think of no reason why an unjustifiable breach of s 12(1)
(a)
of the
Constitution should not be sufficient to establish unlawfulness for
the purposes of the applicant’s delictual action
of unlawful or
wrongful detention.’
[44]
In my view, the respondent has shown that the circumstances in which
the appellant’s employees instigated and persisted
with his
prosecution, amounted to an unjustifiable breach of s 12(1)
(a)
of the Constitution. This is sufficient to establish delictual
liability on the part of the appellant for the full period of the
respondent’s detention from 2 October 2007 to 20 July 2009.
[45]
It follows that the appeal falls to be dismissed. With regard to the
costs of the appeal, this is a matter which justified
the employment
of two counsel.
[46]
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: G H Bloem SC
Instructed
by:
The
State Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
For
the respondent: I Smuts SC (with him G Dugmore)
Instructed
by:
N
N Dullabh & Co, Grahamstown
Symington
& De Kok, Bloemfontein