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[2021] ZAGPJHC 370
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Coetzee and Others v Minister of Police and Another (13356/2019) [2021] ZAGPJHC 370 (21 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13356/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
DATE:
21/5/2021
In
the matter between:
JIMMY
HENRY COETZEE
First Plaintiff
THEMBA
NKUKWANA
Second Plaintiff
FEZEKA
ROSE
MAPELELE
Third Plaintiff
SOLOMON
KGATLE
Fourth Plaintiff
PATRICIA
MOSAE
Fifth Plaintiff
SIPHELELE
MATEISE
Sixth Plaintiff
MOTHOKO
SITILE
PHILLIPPE
Seventh Plaintiff
MPHUTHUMENI
NOMNA
Eighth Plaintiff
ZONO
TOSHO
Ninth Plaintiff
THOBILE
REJOICE
NDIMA
Tenth Plaintiff
NUZUKO
SYLVIA KANI N.O.
EXECUTRIX
Eleventh Plaintiffs
AUBREY
MOJALEFA
Twelfth Plaintiff
PHUMELELE
NKANI
Thirteenth Plaintiff
and
MINISTER
OF
POLICE
First Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second Defendant
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 21 May 2021
SENYATSI
J:
[1]
This is a claim for damages
arising from an alleged wrongful arrest by members of the South
African Police Services and malicious prosecution by the National
Prosecution Authority.
[2]
The arrest, which took place on 29 March 2015 and 15 May 2015 was as
a result of an
incident that took place on 27 March 2015. On the
latter date, it is alleged that a community councillor, Mr Velile
Gladstone Zide
(“Zide”), and his companions were
allegedly assaulted by a group of people during a community meeting
at a sports grounds
in Eden Park.
[3]
With the exception of the first plaintiff, the rest of the plaintiffs
voluntarily
presented themselves to the police, the plaintiffs were
subsequently detained and several charges were preferred against
them.
[4]
The plaintiffs contend that the police officers failed to properly
investigate the
matter prior to taking the decision to arrest them.
In the alternative, they contend that the police officers failed to
exercise
reasonably their discretion under the circumstances.
[5]
The plaintiffs were criminally charged with, amongst others, public
violence and attempted
murder. The charges were later withdrawn by
the Senior Public Prosecutor on 2 July 2018. The plaintiffs
furthermore contend that
the officials of the second defendant failed
in performing their duties or neglected to reasonably apply their
minds to the contents
of the docket which indicated that the State
had no
bona fide
case against them and this failure rendered
the prosecution malicious.
[6]
The first issue for determination is whether the plaintiffs’
arrest was unlawful
owing to the absence of an arrest warrant and
whether the arresting officers formed a reasonable suspicion that the
plaintiffs
had committed Schedule 1 offences of assault where serious
injury was sustained by the complainant. The second issue is whether
the second respondent engaged in the malicious prosecution of the
plaintiffs.
[7]
The common facts are that on 27 March 2015 the complainant (“Zide”)
and
his companions were assaulted by a group of people at a community
meeting. Zide and his companions had to be rescued by metro police
and he subsequently laid criminal charges against the assailants. The
police arrested the first plaintiff two days later. The other
plaintiffs were arrested on 15 May 2015 following their voluntary
submission to the police station and were taken to court. In
the
main, before their arrest, warning statements were taken from them
days before their arrest.
[8]
Once the arrest is admitted as in this case, the onus rests on the
defendants to show
that the arrest and detention of the plaintiffs
were lawful. First to testify on behalf of the defendants was
Detective Constable
Mntungwa (“Mntungwa”). He testified
that he was on duty on 28 March 2015 and was given a docket the
complainant of
which was Zide.
[9]
Mntungwa proceeded to the complainant’s residence as he knew
him. Upon arrival,
he noted that Zide was seriously injured and had
suffered a
fractured left arm and a head injury
.
He interviewed him about the incident and the names of the suspects
mentioned in the docket. Zide told him that he knew some of
the
suspects, especially the first plaintiff.
[10]
Mntungwa also testified that he knew the first plaintiff and where he
resided. He later stated
that the first plaintiff no longer resided
at his home due to alleged disputes with his sister.
[11]
On 29 March 2015 Mntungwa spotted the first plaintiff as he was
walking the street in Eden Park.
He approached him in his police
vehicle and invited him to enter upon which he was arrested for
assaulting Zide. He explained to
the first plaintiff his
Constitutional rights and took him to Eden Park Police station where
he was detained.
[12]
The second witness for the defendants was Detective Constable
Ramoshebi (“Ramoshebi”).
He was allocated the docket of
Zide and assigned to conduct further investigations around the
incident. The docket was only given
to him during April 2015. His
commander Captain Mbuyisa (“Mbuyisa”), now deceased, was
personally involved in the case.
The latter arranged with the
suspects to report to the Eden Park Police Station for their warning
statements to be taken.
[13]
Ramoshebi took some witnesses' statements and warning statements from
the plaintiffs and a further
statement from the complainant, Zide. He
was of the view, so he testified, that the plaintiffs were
sufficiently linked to the
assault of Zide to stand a criminal trial.
[14]
Ramoshebi was called by his commander, the late Mbuyisa on 15 May
2015 to assist in the arrest
of the second to thirteenth plaintiffs.
The purpose of the arrest was to take them to court. Other detectives
were also asked to
come and assist with the arrests as there was a
significant number of suspects. Furthermore, the plaintiffs were
charged, and outstanding
warning statements were taken.
[15]
During cross-examination, Ramoshebi and Mntungwa were challenged on
whether they understood the
Constitutional rights of the suspects.
Mntungwa, under cross-examination, testified that the first plaintiff
appeared in court
within the time period allowed in terms of the law.
It is further the defendants version that the first plaintiffs’
arrest
took place on Sunday, 29 March 2015, and that he appeared in
court on Monday, 30 March 2015.
[16]
Zide also testified and explained in detail how he
was chased by a group of people at the community meeting
held at a
sports ground in Eden Park and gave details of how he was pelted with
stones and the specific role played by the first
plaintiff. He stated
that he laid criminal charges against the assailants and provided
names of the suspects to the police.
[17]
The principles on whether a police officer can arrest someone without
a warrant of arrest
is regulated by s40(1)(b) of the Criminal
Procedure Act No: 51 of 1977 (“the CPA”)which provides as
follows:
“
40 Arrest by a
peace officer without a warrant
(
1) A peace officer
may without a 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;".
It
is therefore undoubtful that the police are allowed to arrest any
person without a warrant provided their conduct is within the
purview
of this section.
[18]
In dealing with the principles established s 40 of the CPA the Court
held in
Minister
of Safety and Security and Another v Linda
[1]
the Court held as follows:
“
The question
whether the suspicion of the person effecting the arrest is
reasonable must be approached objectively. A suspicion
inherently
involves an absence of certainty or adequate proof. A police officer
is not expected to satisfy himself to the same
extent as a Court. A
suspicion
can be reasonable
despite there being
inefficient evidence for a prima facie case.”
I
will add that each case depends on its own facts.
[19]
In
Minister
of Law and Other v Dempsey
[2]
, of the Court held as
follows:
"Once the
jurisdictional fact is proved by showing that the functionary, in
fact, formed the required opinion, the arrest is
brought within the
ambit of the enabling legislation and is thus justified. And if it is
alleged that the opinion was improperly
formed, it is for the party
who makes the allegation to prove it. There are in such a case two
separate and distinct issues, each
having its own onus (Pillay v
Krisha and Another 1946 at p 53). The first is whether the opinion
was actually formed; the second,
which only arises if the onus on the
first has been discharged or if it is admitted that the opinion was
actually formed, is whether
it was properly formed.”
Having
regard to the fact that there was a case of assault on Zide under
investigation, that the names of the suspects were given
to the
police by the complainant; that Mntungwa and Ramosheba had access to
the docket, and both police officers had interviewed
Zide, it is not
unreasonable to accept that they formed a reasonable suspicion that
the suspects mentioned in the docket were linked
to the crime. I am
therefore of the respectful view that the
onus
for justifying
the arrest has been discharged by the first defendant.
[20]
The plaintiffs testified about the circumstances leading to their
arrests. The first plaintiff,
Mr Coetzee (“Coetzee”) was
first to testify and testified as follows, on 27 March 2015 he was
not present at the meeting
held at the sports ground in Eden Park. It
is his evidence that he was approached by a police officer on 29
March 2015 while returning
from church and was invited into a police
vehicle and arrested. He was taken to Eden Park Police station where
he was charged with
assault with the intent to do grievous bodily
harm. His testimony in this regard accorded with the testimony of
Mntungwa.
[21]
The first plaintiff, however, could not demonstrate how he believed
that the arresting officer
was not justified in arresting him. His
name was mentioned by Zide as one of the suspects who assaulted him.
Consequently, I hold
the view that he failed to show that the opinion
formed by the arresting officer was improper.
[22]
It is the third plaintiff, Fezeka Mapelele’s testimony that the
twelfth plaintiff Mr Nkani
informed her that the police had been
looking for her without success and wanted her to report to the
police station. She presented
herself at Eden Park Police Station on
5 May 2015 and provided her statement regarding the events of 27
March 2015. She was arrested
without a warrant on 15 May 2015 at
Palmridge Magistrate Court. She testified that she was arrested
together with her husband the
twelfth plaintiff. She further stated
that on the day in question she came to the rescue of Zide who was
being attacked by the
mob.
[23]
I have not found sufficient evidence from the third plaintiff that
the arresting officers did
not have a reasonable suspicion that she
was linked to the offence for which she was charged.
[24]
The fourth plaintiff to testify was Mr Solomon Kgatle. He was
employed as a painter and was working
on 27 March 2015. He testified
that he started work from 7 am until 5 pm. He testified that he was
not present at the community
meeting. He presented himself at the
police station on 7 May 2015 where he provided his warning statement.
He could not deny that
he was mentioned as a suspect. I, therefore,
find that he could not prove that the police did not have a
reasonable suspicion that
he was linked to the offence.
[25]
The tenth plaintiff, Thobile Ndima testified that she was
present at the said community
meeting on the day of the incident. She
testified that she went home when the assault on Zide took place. She
also could not deny
that she was identified as a suspect following
the police investigation. The police, therefore, were justified in
arresting her.
[26]
The twelfth plaintiff, Mr Aubrey Mapelele also testified. He was
working at Brackendowns and
only returned to Eden Park around 16h:30
on the day of the incident. Upon his arrival at home, his wife was
not there, and as he
did not have the house keys in his possession so
he went to look for her. He was also invited to the police station to
give a warning
statement and was arrested at the Palmridge
Magistrates Court. He did not deny that his name appeared on the list
of suspects.
The police were justified in arresting him.
[27]
The seventh plaintiff, Mr Phillip Sitile Motheko testified that he
was not present at the meeting
on 27 March 2015. He testified that
Zide mentioned his name because they were not on good terms owing to
the alleged unlawful allocation
of the RDP houses that Zide had made.
He did not deny his name was mentioned on the list of suspects. He
gave a warning statement
to the police on 14 May 2015 was
subsequently arrested. He was granted bail on 11 June 2015 and paid
an amount of R500. His
arrest was consisted with the list of suspects
in the docket.
[28]
The fifth plaintiff, Ms Patricia Mosae testified that she resided in
Eden Park West. On the day
in question, she was at the sports ground
where the community meeting took place. She testified that she saw
Zide run towards her
house which is close to the sports grounds. Zide
was being chased by a group of people. Some days later whilst she was
at a local
health clinic she received a call from a female police
officer who invited her to report to the police station. She gave her
warning
statement on 7 May 2015 and was arrested on 15 May 2015 where
she appeared before a court on the same day. She denied that she was
involved in the assault of Zide.
[29]
The second plaintiff Mr Themba Nkukwana testified that during, March
2015 he resided at Greenfields
and not Eden Park. He knew Zide as a
ward councillor in Eden Park and Greenfields. He denied the assault.
He was arrested between
13 and 14 May 2015 and attended court on 15
May 201. He gave his statement on 13 May 2015. He contended that he
was not informed
of his constitutional rights and was made to sign
papers without explanation. He failed to adduce evidence to support
his contention
that the arrest was not justified.
[30]
The eighth plaintiff Mr Mphuthumenni Nomna testified that he lived in
Eden Park- West and was
a member of the ANC and that he knew Zide as
a ward councillor. He was present at the meeting on 27 May 2015 where
Zide held a
pre-meeting with his own people before addressing the
community. He testified that on the day Zide had pointed a finger at
the
first plaintiff. He further pointed out that Zide and the first
plaintiff were not on good terms. Zide insulted the first plaintiff
and said he was uneducated and that is when the commotion started. He
followed the crowd chasing Zide as ran to a neighbouring
shack. He
protected Zide from further assault whilst inside the shack. He gave
a warning statement on 26 April 2015. He went to
the police station
on 15 May 2015 and was arrested and taken to Court. He paid R500 bail
on 11 June 2015. His name was also on
the suspects' list and the
police were therefore justified to arrest him.
[31]
I will now deal with the issue of the alleged malicious prosecution.
As already stated the plaintiffs
aver in their particulars of claim
that the officials of the second defendant failed or neglected to
reasonably apply their minds
to the contents of the docket which
indicated that the State had no bona fide case against them.
[32]
Mr Dwera, a Senior Public Prosecutor testified that the second
defendant was not actuated by
malice or improper motive when the
matter was placed on the roll. He stated that the charge of public
violence and attempted murder
were of serious nature. During his
testimony, Dwera demonstrated his intimate knowledge and
understanding of the matter. He testified
that the charges were based
on the statement made by Zide. Upon analysis of the statement it
became clear to him that additional
charges had to be added.
[33]
Dwera stated that the case was provisionally withdrawn against the
plaintiffs as the presiding
officer did not want a postponement on
the grounds that the plaintiffs had a right to a speedy trial. It
also became clear during
Dwera’s testimony that there had been
several postponements of the matter due to reasons such as the
unavailability of defence
counsel for the plaintiff, unavailability
of some of the plaintiffs, and even the presiding officer. Dwera
stated that as the number
of the plaintiffs was significant and that
there were represented by different legal representatives, it was
difficult to consolidate
their diaries and find dates that were
suitable to each one of them. Some of the legal representatives had
been briefed by the
Legal Aid Board and political parties, their
availability became a significant reason for the postponement of the
trial. He denied
that the State was the chief cause of the delays.
[34]
When confronted with the note written by the investigating officer
which ended with the inscription
“
nolle prosequi
”,
he replied that the investigative officer is not the one making such
determination.
[35]
Dwera testified that on the day the matter was withdrawn, he was on
leave. He stated that the
other public prosecutors were not allowed
to withdraw the charges without consulting him as this was a matter
that he dealt with.
He unequivocally stated that the provisional
withdrawal of the matter did not bring an end to the criminal
charges.
[36]
The principles on malicious prosecution are trite in our law. For the
plaintiffs to succeed in
an action for malicious prosecution, they
must prove all the requirements set out in
Minister
of Safety and Security v Lincoln
[3]
where the Court held as follows:
“…
In
order to succeed in a claim for malicious prosecution a plaintiff
must establish that:
(i)
The defendant:
(a)
Set the law in motion (instituted or instigated the
proceedings);
(b)
Acted without reasonable and probable cause; and
(ii)
That the prosecution failed”
[37]
While there may be a measure of overlap between the first three
requirements, they remain separate
elements of the cause of action,
and the plaintiff beard the onus to establish each distinctly.
[4]
[38]
Having regard to the totality of evidence led by all the Plaintiffs,
I am of the view that they
have all failed to prove the first
requirement. The law was not set in motion by the second defendant,
but by Zide when he laid
charges of assault which on the reading of
the statement by Dwera, resulted in additional charges being
preferred against the plaintiffs.
Our law permits for charges to be
provisionally withdrawn and there is nothing strange about such
withdrawal. It is my view that
this action was ill-conceived and
completely unnecessary.
[39]
The plaintiffs were also required to prove the second requirement
that the defendant acted without
reasonable and probable cause. This
requirement was not proved. When Dwera considered the content of the
docket and the J88 recording
injuries sustained by Zide, as an
independent public prosecutor, he acted reasonably and with probable
cause by adding other serious
charges. He had nothing to gain for
doing discharging his constitutional mandate on behalf of the second
defendant.
[40]
The third requirement that the second defendant acted with malice has
not been proved. No evidence
was led by the plaintiffs in that
regard.
[41]
The other requirement to prove that prosecution has failed has also
not been proved. The plaintiffs
contend that “
nolle
prosequi
” as inscribed by the investigating officer in his
notes implies that prosecution has failed. This is further from the
truth
for reasons already given.
[43]
The Court in
Beckenstrater
v Rottecher & Theunissen
[5]
described malice as an improper or indirect motive. The requirement
for malice is intended to ensure that liability not to be imposed
where a prosecutor places the matter on the roll by reason such as
incompetence inexperience, poor judgment, lack of professionalism,
laziness, recklessness, honest mistake, or negligence.
[6]
[44]
It is clear from Dwera’s evidence that when he received the
docket and studied the docket,
he decided to add a charge of
attempted murder over and above the public violence charge. He also
testified that there were statements
filed by other complainants. His
decision to add charges is consistent with his duties by virtue of
his office.
[46]
Having considered the totality of the evidence before this court I am
of the view that the plaintiffs
have failed to prove their claim on
malicious prosecution.
ORDER
The
following order is made:
(a)
The claims are dismissed with costs
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 20 January 2021
Date
of Judgment: 21 May 2021
1
st
,
3
rd
, 4
th
, 10
th
, 11
th
, and
12
th
Plaintiff’s Counsel:
Instructed
by: NJ Belcher Attorney
2
nd
,
5
th
, 6
th
, 7
th
, 8
th
, and
9
th
Plaintiff’s Counsel: Adv Madyibi with Adv
Buthelezi
Instructed
by: Mangxola Attorneys
Defendant’s
Counsel: Adv Zwane
Instructed
by: The State Attorney
[1]
2014 (2) SACR 464
at para [21]
[2]
1988
(3) SA 19
(A) at 37B -39F
[3]
[] 3 All SA 341 (SCA); 2020 (2) SACR
[4]
See Minister of Safety and Security v Lincoln, supra para [21]
[5]
1955 (1) SA 129 (AD) at 134
[6]
See Maoki v Reckitt & Colman (Africa) Ltd and Another
1968 (3)
SA 98
(A) at 104B-C