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[2011] ZAGPPHC 149
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Charton and Others v Drive Control Services (Pty) Ltd and Others (40439/06) [2011] ZAGPPHC 149 (27 May 2011)
NOT REPORTABLE
IN THE HIGH COURT of
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
Case No:40439/06
DATE:27/05/2011
In
the matter between:
NOBEL
SEAN
CHARTON
...................................................................................
1
st
PLAINTIFF
CHONYANE
JOHANNES
MMONENG
...............................................................
2
nd
PLAINTIFF
PYOOS,
CHRISTOPHER
PATRICK
....................................................................
3
rd
PLAINTIFF
ROBERTS,
SELWYN
...........................................................................................
4
th
PLAINTIFF
CONDICE,
ALLISSIN
TERRY-ANNE
....................................................................
5
th
PLAINTIFF
LEE,
LUNA
VIRGINIA
..........................................................................................
6
th
PLAINTIFF
ABRAHAMS,
THERESA
PHOEBE
.......................................................................
7
th
PLAINTIFF
ROBERT
ZOHRA
…..............................................................................................
8
th
PLANTIFF
SEBOLA,
JOSIAMODIKOE
…..............................................................................
9
th
PALINTIFF
And
DRIVE
CONTROL SERVICES (Pty)
Ltd
.....................................................
1
ST
RESPONDENT
FOURIE,
JOHANNES
HERMANUS
............................................................
2ND
RESPONDENT
THE
MINISTER OF SAFETY AND
SECURITY
............................................
3
rd
RESPONDENT
CAPTAIN
J.D.
ENGELBRECHT
...................................................................
4
th
RESPONDENT
JUDGMENT
MAVUNDLA
J.
[1]
The
claims of the plaintiffs against the defendants are for alleged
unlawful arrest and unlawful prosecution. By agreement an order
in
terms of Rule 33
(4)
of
the High Court the issues regarding merits ad quantum were separated
and quantum related issues were postponed
sine
die.
The
matter proceeded on merits related issues.
[2]
It is common cause that all the plaintiffs were in the employ of the
first defendant. The second defendant has at all relevant
times acted
in the course and scope of his employ with the first defendant. The
fourth defendant at all relevant times acted in
the course and scope
of his employ with the third defendant.
[3]
It is common cause that the plaintiffs were arrested consequent to
the second defendant having preferred theft charges against
them. The
plaintiffs allege that the information furnished by the second
defendant to the police against them was false and that
the
defendants had no reasonable cause to do so, neither did they have a
reasonable belief that the information was true. They further
allege
that the arrest was unlawful. They further allege that their
subsequent prosecution was malicious.
[4]
The second defendant acted with the course and scope of his employ
with the first defendant. The fourth defendant acted within
the scope
and course of his employ with the third defendant.
[5]
The first and second defendants denied any wrongdoing and pleaded
that the criminal charges were brought against the plaintiffs
subsequent to internal investigation and found that the plaintiffs
wee involved in the theft of some computer stock.
[6]
The arrest of the plaintiffs is not in dispute. It is not for the
plaintiff to prove that the arrest was wrongful. It is for
the
defendants to prove that the arrest was justified and lawful, vide
Cele
v Minister of Safety and Security
1
;
Mhaga v Minister of Safety and Security
2
;
Lombo v African National Congress
3
.
[7]
In Mhaga v Minister of Safety and Security (supra) at 538b-g it was
held that an arrest without a warrant is lawful if the arresting
officer at the time of the arrest had a reasonable belief that the
plaintiff had committed a schedule 1 offence. The arrest remains
lawful if circumstances exist demanding the arrest to bring arrested
person to court, even if his appearance at court could have
been
secured by means of a subpoena.
4
[8] In respect of
malicious arrest and prosecution, the plaintiff bears the onus of
proving all the elements of action iniuriarum,
vide Van Der Merwe v
Strydom
5
;
Rudolph v Minister of Safety & Security
6
.
[9]
The arrest of the plaintiffs, their subsequent prosecution and
withdrawal of the charges against them was common cause. For
the
plaintiff to succeed with the malicious prosecution claim, they must
prove, inter alia, that the defendants, could not have
reasonably
believed that the plaintiffs have possibly committed the offence
accused of, secondly that the defendants in instituting
the
prosecution were moved by improper motive and had no reasonable
cause. If the plaintiffs fails in proving that the defendants
acted
unreasonably then they cannot succeed; vide Van Der Merwe v Strydom
at 467C-
[10]
In Rudolph v Minister of Safety & Security,
7
Mokgoathleng J cited the following:
"...In Beckenstrater
v Rottcher and Theunissen
1985 (1) SA 129(A)
at 136A- elements for
malicious arrest and prosecution, that the arrest and prosecution was
instituted in the absence of reasonable
and probable cause was
categorises as follows: to have believed in the plaintiffs guilt, a
subjective element comes into play and
disprove the existence, for
the defendant, of reasonable and probable cause.'
[11]
I attentively listened and observed all the persons who testified in
this matter. I have a deem view of the plaintiffs as witnesses,
they
did not cut a good impression at all. The plaintiffs wanted to make
believe that they did not know why and when they were
arrested. They
professed their innocence of any wrong doing. They also professed to
have been coerced or tricked or not knowing
what they were signing,
when they signed their resignation from the employ of the first
defendant, or statements admitting their
involvement in the theft. My
general impression of all the plaintiffs is that they were pathetic
witnesses. They were subjected
to polygraph testing by their employer
in connection with the rampant stock theft the plaintiffs were all
involved in.
[12]
On the contrary, the witnesses of the defendants, without singling
any one of them, were impressive witnesses. I did not gain
the
impression that they were hell bent in perverting the truth to their
advantage. They made concession where necessary but steadfastly
insisted in the essence of their defence. The essence of the defence
of the first and second defendants is that there was a reasonable
suspicion to believe that all the plaintiffs were involved in the
commission of theft of grand magnitude, running into several
thousand
rand, which required further investigation by the police.
[13]
The evidence presented by the defendants shows that the plaintiffs
were colluding with one another in committing thefts of
the stock in
the first plaintiff's business. The plaintiffs were presented by an
independent company Secura Data of evidence that
implicated the
plaintiffs in the thefts. Statements made by the plaintiffs as well
as an undercover operative seemingly implicated
the plaintiffs in the
scheme of theft. The investigation by the first and second defendant
revealed that the thefts involved enormous
amounts. Presented with
all the material emanating from their investigation, it is
understandable that the first and second defendant
believed that the
plaintiffs were involved in the crime of theft which warranted that
charges be preferred charges against with
the police. Indeed, I would
not have accepted the first defendant and the second defendant,
presented with all the material presented
to them, not to report this
to the police, as they did. In my view, there was enough material
that raised suspicion on the part
of the first and second defendants
implicating the plaintiffs, justifying that they prefer charges
against them.
[14]
I further accept the evidence of the second defendant that, once he
reported to the police what their investigation has revealed,
he
arranged with the fourth to show him the plaintiffs at the first
defendant's premises. Once all the plaintiffs who were present
at
work on the day of arrest, reported at dispatch area, he mentioned
their names to the fourth defendant, he left it to the defendant
to
effect the arrest. I further accept his evidence that he was not
driven by any malice when he reported the matter to the police
as he
believed that the plaintiffs were guilty of theft from the first
defendant's business. He further had nothing to do with
the
subsequent prosecution of the matter. He denied that he was driven by
any malice. This fact, in my view is borne out by the
fact he was
prepared to have the plaintiffs back at work, although not all of
them came back.
[15]
The fourth defendant concedes that, there was no warrant of arrest,
when the plaintiffs were arrested. He, however, stated
that the
because of the nature of the complainant and the magnitude of the
amounts running into several thousand of rand involved,
he believed
that the matter did not require procurement of a warrant of arrest,
but immediate arrest and further investigation
later. He accepted
that the offence complained of fell within schedule 1 and a
reasonable suspicion that the plaintiffs were guilty
of the charges
accused of.
[16]
It is trite that once an arrest has been affected, it is for the
prosecutors to decide whether the arrestee be charged or not.
It is
not necessary that investigations be first completed before an arrest
is effected. Investigations would invariably proceed
well even after
an arrest. In my view, it was not necessary that the fourth defendant
should have first completed his investigation
before effecting an
arrest. The defendant also testified that he believed that the
plaintiffs had committed a schedule offence
which they were guilty
of. He further stated that once the arrest was effected, further
prosecution was a matter within the discretion
of the prosecutor.
[17]
Having regard to the totality of the evidence that has been led in
this case, the impressions the witnesses have made on me,
I am
satisfied that the plaintiffs have not discharged the onus resting on
them to prove that the defendants did not have reasonable
cause to
believe that the plaintiffs committed the offence of theft; and that
they did not believe the truthfulness of the allegations
against
them; that in instituting the complainant, the arrest and subsequent
prosecution the defendants were motivated by malice;
and that the
defendants acted unreasonably. I am also satisfied that the
defendants have discharged on a balance of probability
the onus
resting on them to show that there was a reasonably suspicion,
premised on the material placed before them, that the plaintiffs
were
guilty of the offence of theft at a grand scale from the first
defendant's premises, and that they reasonably believed the
information that was at hand at the time that the plaintiffs were
involved in the thefts. I am equally satisfied that the defendants
acted reasonably in preferring charges against the plaintiffs, in
causing the arrest of the plaintiffs, and their subsequent
prosecution.
[18]
In the premises, I make the following order:
1.
That the claims of all the plaintiffs are dismissed;
2.
That the plaintiffs are jointly and severally, the one paying the
others to be absolved, to pay the defendants' costs on party
and
party scale, which shall include the fees of senior counsel and two
counsel where applicable.
N.MJVJANDLA
JUDGE
OF THE HIGH COURT
DATE OF JUDGMENT :
27/05/2011
PLAINTIFFS'ATT: MINNAAR INC
PLAINTIFFS'
S ADV : MR. P.M. VAN RYNEVELD WITH MR. G. JACOBS
1
ST
& 2
ND
DEFENDANTS' ATT : BEZUIDENHOUT VAN ZYL INC
1
ST
& 2
ND
DEFENDANTS'ATT : MS. ADELE DE WET SC 3
RD
& 4
TH
DEFENDANTS'
ATT : STATE ATTORNEY
3
RD
& 4
TH
DEFENDANTS' ATT : MR. A. PIETERSE
1
2007
3 ALLS A 365
(D).
2
2001
(2) ALL SA534.
3
2002
(5)
SA
668
(SCA)
para32.
4
Vide
Tsose v Minister of Justice and others
1951
(3) SA 10
(A) atl 7G-H.
5
1967
(3)SA460 (A) 467.
6
[2007]
3 ALL SA 271
(T).
7
(supra)
at
285 para [123].