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[2014] ZASCA 216
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Minister of Safety and Security N.O. and Another v Schubach (437/13) [2014] ZASCA 216 (1 December 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:
437/13
In
the matter between:
THE MINISTER OF
SAFETY
AND SECURITY N.O.
…....................................................................................
FIRST
APPELLANT
THE DIRECTOR OF
PUBLIC
PROSECUTIONS N.O.
…..............................................................
SECOND
APPELLANT
and
LEONARD
CHARLES
SCHUBACH
.........................................................................
RESPONDENT
Neutral
citation
:
Minister
of Safety and Security NO v Schubach
(437/13)
[2014] ZASCA 216
(1 December 2014)
Coram:
Navsa ADP, Shongwe, Zondi JJA and
Schoeman and Meyer AJJA
Heard:
14 November 2014
Delivered:
1 December 2014
Summary:
Malicious prosecution – what
plaintiff must prove – plaintiff prosecuted on a number of
charges including those for
which there was no basis –
assessment of damages – Prosecuting Authority – Powers
and duties – s
42 of
National Prosecuting Authority
Act 32 of 1998
not applicable where powers unlawfully exercised.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Kruger AJ sitting as court of first
instance):
1.
The appeal is upheld to the extent reflected in the orders that
follow.
2.
The respondent is ordered to pay the appellants’ costs of the
appeal, including the costs of two counsel.
3.
The order of the court below is set aside and replaced with the
following order:
‘
(a)
The first and second defendants are ordered jointly and severally,
the one paying the other to be absolved, to pay the plaintiff
a sum
of R10 000.
(b)
The first and second defendants are ordered to pay interest at the
rate of 15.5 per cent
a tempore morae
from date of summons to
date of payment.
(c)
The first and second defendants are ordered jointly and severally,
the one paying the other to be absolved, to pay the plaintiff’s
costs of suit.’
JUDGMENT
Zondi
JA
(Navsa ADP, Shongwe JA and
Schoeman and Meyer AJJA concurring):
[1]
This is an appeal against the judgment and order of the North Gauteng
High Court, Pretoria (Kruger AJ) upholding the respondent’s
claim arising from an alleged malicious prosecution and awarding him
damages. The appeal is with the leave of that court.
[2]
The respondent, Mr Leonard Charles Schubach, held the rank of Colonel
in the South African Police Service. He was the commanding
officer of
the Escort Unit of the SAPS, which unit was responsible for escorting
money for the South African Reserve Bank to various
destinations in
the country. As a result of information received from an informer
various firearms and ammunition including weapons
owned by the
respondent, his wife and third parties as well as flares or
explosives used by members of the SAPS for operational
purposes were
found in a walk-in safe at the offices of the Escort Unit on 14 March
2005 over which the respondent exercised control.
The weapons,
ammunition and explosives were seized and the respondent was arrested
for the unlawful possession of firearms and
ammunition despite his
explanation that the firearms and ammunition found were all licensed
and owned by either him, his wife or
third parties for whom they were
kept in safe custody and that the rest of the weapons and explosives
were either found or owned
by the SAPS.
[3]
Notwithstanding his explanation, the respondent was arrested for the
unlawful possession of all the firearms and ammunition
and was
detained at Pretoria Central Police Station until 15 March 2005. On
that date the respondent appeared in court where he
was released on
R3000 bail. In due course the second appellant, the Director of
Public Prosecutions (DPP), charged the respondent
with possession of
unlicensed firearms and ammunition, prohibited firearms and
explosives in contravention of the Firearms Control
Act.
[1]
The
respondent made representations to the DPP in an attempt to persuade
the DPP not to prosecute him.
[4]
In the representations the respondent contended that his possession
of the following set of firearms was not unlawful:
4.1 A firearm which
had been issued to him by his employers, the South African Police
Service (SAPS), as a service firearm;
4.2 Firearms which
were licensed to him and to his wife;
4.3 Firearms which
were recovered by members of the police diving unit in Roodeplaat Dam
and kept in a police safe pending investigation;
4.4 Firearms which
he had kept in the police safe on behalf of his friend, Mr van der
Merwe, who had bought them from Mr Storm;
and
4.5
Weapons which he held in safe custody for his friend, Mr Kruger, who
owned a security company. These weapons were to be collected
from him
in due course by Mr Kruger’s business associate.
[5]
The DPP considered the respondent’s representations and on the
basis of his explanation decided not to prosecute him on
charges
relating to his own and wife’s firearms. The DPP added a charge
against the respondent relating to the explosives
that were also
found in the safe. At the same time the DPP instructed the Senior
Public Prosecutor not to charge the respondent
for firearms in
respect of which he and his wife held licences and to forward the
explosives to the forensic laboratory for analysis
before the
commencement of the trial. But the DPP’s instruction was
ignored and the respondent was nevertheless prosecuted
also in
respect of the firearms owned by him or his wife that were licensed.
In due course the respondent was arraigned at the
Pretoria Regional
Court, but was acquitted of all the charges.
[6]
The respondent instituted action in the North Gauteng High Court
against the appellants for damages sustained as a result of
what was
alleged to be an unlawful arrest and malicious prosecution. The basis
for his claim against the first appellant, the Minister
of Safety and
Security (the Minister), was that the arresting police officers
wrongfully and maliciously laid false charges against
him, first by
providing false information that he was in unlawful possession of
prohibited firearms, ammunition and explosives;
secondly, by falsely
representing that he was not authorised to be in possession of the
firearms, ammunition and explosives; and
thirdly, by falsely
representing that he was unlawfully in possession of his own and
service firearms.
[7]
The allegations underpinning the damages claim against the DPP are
that ‘[d]ie lede in diens van die Tweede Verweerder
het geen
gronde gehad om te glo dat die besonderhede verskaf deur die Eerste
Verweerder die waarheid is nie’. When the trial
commenced in
the court below the respondent abandoned his claim for damages for
unlawful arrest and detention against the Minister,
but persisted
with his claim against the DPP and the Minister in respect of the
malicious prosecution.
[8]
Kruger AJ who heard the matter found that the prosecution of the
respondent on the charges relating to the possession of explosives,
his service pistol and the firearms and ammunition owned by him or
his wife was not based on reasonable and probable cause and
was
malicious.
[9]
In relation to the balance of the charges, namely those relating to
the firearms which the respondent kept for safe keeping
on behalf of
Mr van der Merwe and Mr Kruger, and those which were recovered from a
nearby dam, Kruger AJ found that there was a
reasonable and probable
cause to prosecute him on those charges and that the prosecution was
not malicious.
[10]
With regard to the amount of damages, Kruger AJ awarded the
respondent R120 000 for general damages and R93 000 for
the
legal costs he had incurred in defending the legal proceedings
terminated in his favour. He ordered the appellants jointly
and
severally, the one paying the other to be absolved, to pay the
respondent for the damages and costs of suit. The appellants
appeal
against the findings and the order of Kruger AJ as set out above.
[11]
The requirements for a successful claim for malicious prosecution as
set out by this Court in
Minister for Justice and Constitutional
Development v Moleko
[2008] 3 All SA 47
(SCA) para 8 were
restated in
Rudolph & others v Minister of Safety and Security
& another
2009 (5) SA 94
(SCA) para 16:
‘
(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.’
See
also
Moaki v Reckitt & Colman (Africa) Ltd
1968 (3) SA 98
(A);
Relyant Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA).
[12]
It is not in dispute in this matter that the DPP instituted the
criminal proceedings against the respondent and that those
proceedings were terminated in his favour (
Thompson v Minister of
Police
1971 (1) SA 371
(E)). What the DPP challenged is the court
below’s finding that its decision to prosecute the respondent
on some of the charges
was without reasonable cause and malicious.
Counsel for the DPP submitted that the court below erred in its
finding that the DPP’s
decision to prosecute the respondent on
those charges was malicious, but not malicious on others. He argued
that, as the decision
to prosecute constitutes a single intent and a
single act, its reasonableness had to be evaluated in its entirety,
and it was thus
wrong to conduct such an evaluation separately since
it is inconceivable that the prosecutor would have a malicious intent
for
one set of charges and not for the other; he either has malicious
intent (
animo injuriandi
) or not.
[13]
I disagree with the DPP’s contention. The set of charges are
discrete and have to be considered separately in determining
the
absence of reasonable and probable cause. Considerations pertaining
to the one set of charges cannot be transposed onto the
other. In
other words, the fact that there was a reasonable and probable cause
to prosecute on one set of charges has no effect
on the outcome of
the enquiry in relation to the other set of charges. This is so,
because the question whether reasonable grounds
for the prosecution
exist is answered only by reference to the facts of each case.
[14]
This Court in
Beckenstrater v Rottcher and Theunissen
1955 (1)
SA 129
(A) at 136A-B set out the test for ‘absence of
reasonable and probable cause’ as follows:
‘
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]
The test contains both a subjective and objective element which means
that there must be both actual belief on the part of
the prosecutor
and that that belief must be reasonable in the circumstances (J
Neethling, JM Potgieter & PJ Visser
Neethling’s Law of
Personality
(2 ed, 2005) at 176).
[16]
It is common cause that there was no probable cause to prosecute the
respondent on the charges relating to the firearms and
ammunition for
which he and his wife had licences because the DPP had given
instructions that those charges had to be withdrawn.
The prosecution
on these charges was malicious.
[17]
With regard to the charges relating to explosives and a service
pistol, Ms Meintjies, who testified for the DPP, explained
in
relation to the former that ‘daardie klagte was aanvanklik nie
gestel nie, maar by heroorweging het Mnre Mashile and Ngobeni
besluit
maar daar moet so ‘n klagte wees en ek kon nie daarmee fout
vind nie’, and secondly she reasoned that the fact
that the
respondent had these items in the same safe as other items was
sufficient for her to conclude that there was unlawful
possession. It
is difficult to understand her first explanation having regard to the
fact that she had, on 2 October 2006, instructed
the Senior Public
Prosecutor to send the explosives ‘to forensic science
laboratory for forensic report before the commencement
of the trial’
and her evidence was that she had no knowledge of what happened
thereafter because she did not follow it up.
Moreover Mr Hartell’s
statement (the arresting officer), which I assume formed part of the
material placed before the DPP
on the basis of which a decision to
prosecute was taken, makes no reference to the explosives. There is a
reference to explosives
in a statement in the docket, but it is not
clear if it had anything to do with his decision to arrest the
respondent. All that
he said in his statement is that he arrested the
respondent ‘for being unlawfully in possession of firearms and
ammunition’.
Neither of them testified in the court below.
[18]
Ms Meintjies’ latter explanation goes to show that there was no
reasonable and probable cause to prosecute the respondent,
bearing in
mind that the explosives and the service pistol were found in a
police safe and are used by the police. In these circumstances
there
can be no basis for the contention that the DPP’s decision to
prosecute the respondent on those charges was based on
reasonable and
probable cause. Also the court below’s conclusion that the
respondent’s prosecution on those charges
was malicious cannot
be faulted. The ineluctable inference to be drawn is that those
responsible for initiating the prosecution
against the respondent on
the charges under consideration were aware of what they were doing in
initiating the prosecution and
foresaw the possibility that they were
acting wrongfully, but they nevertheless acted, reckless as to the
consequences of their
conduct (
dolus eventualis
). See:
Rudolph & others v Minister of Safety and Security &
another
2009 (5) SA 94
(SCA) para 18.
[19]
In its heads of argument the DPP raised, and relied on, s 42 of the
National Prosecuting Authority Act 32 of 1998 (the Act)
as the basis
for its denial that its prosecution of the respondent was malicious.
This section provides that ‘[n]o person
shall be liable in
respect of anything done in good faith’ under the Act. The
DPP’s argument therefore was that, since
the Senior Public
Prosecutor acted in good faith in prosecuting the respondent, he
cannot be liable for the damages suffered by
the respondent. It was
contended that this section creates a legal immunity in favour of a
person who in good faith exercises a
power conferred under the Act
even in cases where that person is negligent. This argument was not
raised in the appellant’s
pleadings, but was only raised when
the application for leave to appeal was made. It was not persisted
with in oral argument before
us.
[20]
In my view, s 42 does not protect the officials of the National
Prosecuting Authority who in the performance of their duties
under
the Act exercise act maliciously from civil liability. The s 42
defence relates to a bona fide mistake. In the instant matter
the
DPP’s decision to prosecute the respondent on some of the
charges was malicious, which conduct by its very nature negates
bona
fide. The DPP’s s 42 defence must therefore fail. Furthermore,
it has not been established that the prosecutors involved
in this
matter have taken all reasonable precautions to avoid or minimize
injury to the appellant and the DPP’s s 42 defence
must
therefore fail. In
The Minister of Justice and Constitutional
Development v X
(196/13) [2014] SASCA 129 (23 September 2014)
para 52, Fourie AJA said the following:
‘
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 minimize 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.’
[21]
With regard to damages, there is no doubt that the respondent was
entitled to damages for both injury to personality and pecuniary
loss
suffered (
Law v Kin
[1966] 3 All SA 84
(W);
1966 (3) SA 480
(W) at 483), but the question is whether the amount of damages
awarded to him was justified. The former are awarded as a solatium
under the
action injuriarum
, while the latter constitute
compensation under the
actio legis aquilia
.
[22]
As regards the quantum of damages the court below awarded damages in
the amount of R120 000 for injury to the respondent’s
personality rights and R93 000 for the legal costs he incurred
in defending the criminal proceedings in the regional court
and
seeking the setting aside in the high court of the first appellant’s
decision to suspend him without pay. Counsel for
the DPP contended
that the damages awarded were excessive having regard to the fact
that the respondent abandoned his claim for
damages arising out of
unlawful arrest and detention, that his criminal trial in any event
proceeded in respect of the charges
for which there was reasonable
and probable cause to prosecute and furthermore that there was no
evidence to support his claim
for R93 000. I agree with the
DPP’s counsel. An amount of R93 000 for legal costs should
not have been awarded
in the absence of proof that those costs were
in fact incurred. The evidence adduced by the respondent in support
of that claim
is very vague, flimsy and devoid of substance. Although
the respondent claimed to have spent R93 000 on legal costs he
admitted
that ‘ek het geen bewyse daarvoor nie’. In
any event it is unknown how much of the legal costs he allegedly
expended
related to that part of the case in respect of which there
was probable cause to prosecute and in relation to representation
connected
to his challenge in the high court against his suspension
from his duties as a police officer.
[23]
As regards the award of R120 000 the court below, in my view, erred
in failing in its assessment of damages to take into account
the fact
that the respondent’s prosecution on charges relating to the
other weapons was based on reasonable and probable
cause and not
malicious. In other words, the infringement of the respondent’s
rights was not wrongful as his prosecution
on those charges was based
on reasonable grounds. The appellant would in any event have been
arrested in respect of the charges
for which there was probable
cause, spent time in custody and faced the prosecution. These
facts were ignored
by the court below. The damages were thus
assessed at an amount too generous. A reasonable amount in my
view would
be an amount of R10 000.
[24]
In the result I make the following order:
1.
The appeal is upheld to the extent reflected in the orders that
follow.
2.
The respondent is ordered to pay the appellants’ costs of the
appeal, including the costs of two counsel.
3.
The order of the court below is set aside and replaced with the
following order:
‘
(a)
The first and second defendants are ordered jointly and severally,
the one paying the other to be absolved, to pay the plaintiff
a sum
of R10 000.
(b)
The first and second defendants are ordered to pay interest at the
rate of 15.5 per cent
a tempore morae
from date of summons to
date of payment.
(c)
The first and second defendants are ordered jointly and severally,
the one paying the other to be absolved, to pay the plaintiff’s
costs of suit.’
______________
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellants: E M Coetzee SC (with him Marisa Barnard)
Instructed
by:
State
Attorney, Pretoria
State
Attorney, Bloemfontein
For the Respondent:
G C Muller SC
Instructed
by:
Du
Toit Attorneys, c/o Opperman Attorneys, Pretoria
Honey &
Partners, Bloemfontein
[1]
Firearms Control Act 60 of 2000
.