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[2011] ZAGPPHC 104
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Beukes v Minister of Safety and Security (26865/2009) [2011] ZAGPPHC 104 (15 June 2011)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 26865/2009
DATE:
15/06/2011
IN
THE MATTER BETWEEN:
BRAAM
BEUKES
......................................................................................................
PLAINTIFF
AND
THE
MINISTER OF SAFETY AND
SECURITY
...................................................
DEFENDANT
JUDGMENT
KOLLAPEN,
AJ
[1
] In this action the plaintiff seeks damages against the defendant
arising out of the plaintiffs arrest at Bronkhorstspruit on
29
September 2007. his subsequent detention at the police cells in
Bronkhorstspruit until 4 October 2007 as well as the prosecution
initiated by employees of the first defendant which ultimately
resulted in the plaintiffs acquittal on 26 March 2009.
[2]
The plaintiff alleges that his arrest in respect of the charge of
murder was unlawful if regard be had to the requirements of
section
40(1 )(b) of the
Criminal Procedure Act 51 of 1977
and that his
subsequent detention was similarly unlawful. In addition the
plaintiff avers that the prosecution in respect of the
murder charge
initiated on 30 September 2007 was malicious.
[3]
The defendant denies that the arrest and detention was unlawful or
that the prosecution was malicious and disputes the quantum
of the
damages allegedly suffered by the plaintiff.
Issues
in dispute
(1)
Was the arrest of the plaintiff lawful or unlawful?
(2)
Was the prosecution of the plaintiff by the defendant malicious?
(3)
The quantum of the plaintiffs damages.
Background
and facts
[4]
The plaintiff, a business man of Pretoria, conducts his own business
in the area of fleet management monitoring but is also
engaged on a
part time basis as a disc jockey. The plaintiff was employed on a
regular basis by the Jo Jo's Pub in Bronkhorstspruit
as a DJ where he
worked for approximately three years on Fridays and Saturdays. On 28
September 2007 there was an incident in the
pub which resulted in the
death of a person known as Mr Deacon who was allegedly assaulted
during the course of the evening in
the pub and who was pronounced
dead as a result of injuries sustained during the course of the
assault.
[5]
It is common cause that the plaintiff was arrested during the morning
of 29 September 2007 by members of the South African Police
stationed
at Bronkhorstspruit and held in custody until his appearance in the
Bronkhorstspruit Magistrate's Court on 1 October
2007 when the matter
was postponed to 4 October 2007 and on which date the plaintiff was
released on bail. It is also common cause
that on 30 September 2007
members of the South African Police formally charged the plaintiff
with murder and that he made various
court appearances in pursuance
of the said charge ultimately resulting in his acquittal on 26 March
2009 in the Bronkhorstspruit
Magistrate's Court.
[6]
The plaintiffs version of the events leading to his arrest was that
while on duty at approximately 12:00pm on the evening of
28 September
2007 he was alerted to an incident which was happening in the night
club by a young lady who appeared to be hysterical.
She pulled him by
his hand to a section of the night club where he witnessed a male
person holding another male person against
the wall. He attempted to
separate them which he did successfully and then as he approached the
person who was standing against
the wall the person suddenly fell
forward. The plaintiff attempted to catch him in order to break his
fall and put him down on
the floor of the discotheque. At that stage
and as he withdrew his arms from the body of the fallen person he
noticed that his
hands were full of blood whereupon he panicked
having regard to his fear that he may have been at risk of contacting
the HIV virus.
He immediately went into the bathroom where he was
busy for approximately ten minutes in an attempt to wash the blood
off his hands.
When he returned from the bathroom the person who had
fallen had been removed from the scene. The plaintiff went home and
the next
day was summoned by an unknown person to come to
Bronkhorstspruit where he was arrested. The plaintiffs version was
that apart
from attempting to intervene in the fight that was ensuing
in the night club and attempting to assist the person who was in the
process of falling he was not involved in any manner whatsoever in
any attack on the deceased and his only intervention in the
proceedings of the evening relative to the death of the deceased was
his attempt to separate the fighting parties and to assist
the person
who subsequently died.
[7]
The plaintiff conceded in cross-examination that objectively speaking
it would appear from his intervention that he may have
had some
involvement in the incident and that objectively speaking the
presence of blood on his hands would suggest a level of
involvement
as well but denied that such levels of involvement were sufficient to
sustain a basis of his involvement in the murder
of the deceased. The
plaintiffs further testimony was that the conditions of detention
under which he was held fell considerably
short of the minimum
standards required by law. The cells were filthy and overcrowded, the
food was not palatable and the ablution
and washing facilities were
hardly consistent with human dignity. It is accordingly the
plaintiffs contention that his arrest on
29 September 2007 was
unlawful as well as his subsequent detention and that when he was
charged on 30 September 2007 for the offence
of murder it initiated a
prosecution that was malicious and that had no reasonable prospect of
succeeding.
On
behalf of the defendant the investigating officer Warrant Officer
Mawelela testified that he was on stand-by duty on the night
of 28
September 2007 when he received a report of a person who had died at
the Bronkhorstspruit hospital. He subsequently discovered
that there
was a fight at the Jo Jo's tavern and also testified that during the
course of the evening and the early morning he
received numerous
reports and information regarding the incident. When he arrived at Jo
Jo's tavern during the morning of 29 September
2007 he observed spots
of blood on the wall close to the area where the DJ would have set up
his apparatus and that it was clear
to him that the floors and the
wall of the tavern had been washed after the incident. He also
testified that he received information
from one Mr Riaan Nieuhoff a
former traffic officer in the Bronkhorstspruit area that the
plaintiff and one Diedericks were involved
in the attack on the
deceased. During the course of the morning the plaintiff and
Diedericks arrived on the scene and were placed
under arrest, taken
into custody and then charged with murder on 30 September 2007. It
also appears that certain witness statements
were taken during the
early hours of the morning of 29 September 2007 in particular from
one Dorah Kgapahle as well as from Ms
Sharon Fourie. Further
statements from other witnesses were taken later that day and on
subsequent days. Warrant Officer Mawelela's
view was that when he
arrested the plaintiff and subsequently decided to charge him he was
satisfied that there was a reasonable
basis to suspect the
involvement of the plaintiff in the murder of the deceased. It
warrants mention that after the arrest of the
plaintiff his wife
brought in clothing and shoes that the plaintiff had been wearing on
the previous evening and Warrant Officer
Mawelela testified that he
saw blood stains on both the clothes and the shoes which confirmed
his initial view that indeed it was
the plaintiff who was involved in
the assault and subsequent death of the deceased.
[8]
It warrants mention that Warrant Officer Mawelela's testimony with
regard to the time sequence of when the statements of s Kgapahle
and
Ms Fourie were taken was less than satisfactory. His initial
testimony was that the statements while reflecting the time as
being
taken during the early hours of the morning were in fact taken
sometime during the afternoon of 29 September 2007. However
he
conceded that indeed the statements of Sharon Fourie and Dorah
Kgapahle would probably have been taken during the early hours
of the
morning and prior to the arrest of the plaintiff and Mr Diedericks.
It also warrants mention that the manner in which Warrant
Officer
Mawelela recorded the sequence of events and his failure to depose to
an arrest statement was also viewed as unsatisfactory
in ensuring a
proper paper trail and a proper recording of his observations and his
actions during the course of his investigation.
[9]
Notwithstanding this he was adamant that the information that was
available to him on the morning of 29 September 2007 provided
a
reasonable basis for him to form the conclusion that indeed the
plaintiff was involved in the assault and the death of the deceased
and that his subsequent decision to charge the plaintiff was also
based on information which in his view provided a reasonable
basis to
conclude that there was a good prospect of a conviction in the event
of a prosecution.
The
Law
[10]
Section 40(l)(b)
of the
Criminal Procedure Act 51 of 1977
provides
that: "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."
In
Duncan v Minister of Law & Order
1986 2 SA 805
(AD) at 818G-H the
Appellate Division concluded that in order to be able to rely on the
protection of section 40(1 )(b) it must
be established that-
(a)
the person who effected the arrest was a peace-officer;
(b)
he must have entertained a suspicion;
(c)
it must be a suspicion that the arrestee committed the offence
referred to in Schedule 1 of the Criminal Procedure Act; and
(d)
the suspicion must rest on reasonable grounds.
In
this matter the core issue in dispute and for determination is
whether the arrest of the plaintiff was based on a suspicion that
rested on reasonable grounds.
[11]
In Mabona & Another v Minister of Law & Order and Others
1988
2 SA 654
(SE) at 658E-F JONES, J described the test referred to in
section 40(1 )(b) and the process by determining whether it was met
as
follows:
"Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there
were good and
sufficient grounds for suspecting that the plaintiffs were guilty of
conspiracy to commit robbery or possession of
stolen property knowing
it to have been stolen?"
[12]
In determining the reasonableness of a suspicion what is required is
a thorough and critical assessment and evaluation of all
the relevant
and available information by the arresting officer at the time of the
arrest. Of course what is not required is the
wisdom of hind-sight
but clearly on the other hand the suspicion has to be based on
reasonable grounds.
[13]
In Duncan (supra) the Court relied with approval on the dicta of Lord
Devlin in Shabaan Bin Hussein and Others v Chong Fook
Kam &
Another
[1969] 3 AER 1627
(PC) at 1630 that:
"Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; 'I suspect but I cannot prove'.
Suspicion arises at
or near the starting point of an investigation of which the obtaining
of prima facie proof is the end."
The
formulation of Lord DEVLIN was endorsed and adopted by the SCA in
Powell NO & Others v Van der Merwe NO & Others
2005 5 SA 62.
CAMERON JA (as he then was) relied on the dicta of Lord DEVLIN to the
effect that-
"another
distinction between reasonable suspicion and prima facie proof. Prima
facie proof consists of admissible evidence.
Suspicion can take into
account matters that could not be put in evidence at all ...
Suspicion can take into account also matters
which, although
admissible, could not form part of a. prima facie case."
It
is accordingly clear that while prima facie proof may satisfy the
requirements of section 40(1 )(b), what is required is not
prima
facie proof but a suspicion resting on reasonable grounds and that
lack of proof may not in itself preclude the formation
of such a
suspicion that the law requires.
Did
such a reasonable suspicion exist when the plaintiff was arrested?
[14]
On the plaintiffs testimony the following appears not to be in
dispute:
(a)
the plaintiff interacted with Diedericks and the deceased even if it
was on the plaintiffs version an attempt to bring an end
to the
altercation;
(b)
the plaintiff would have been seen handling the deceased and would
have been seen leaving the discotheque floor and entering
the
bathroom with blood on his hands;
(c)
the plaintiff would have spent ten minutes in the bathroom, exiting
at the time when the deceased's body was already removed
from the
disco floor.
On
the basis of this alone there would be a reasonable basis for anybody
to at the very least reasonably suspect some involvement
on the part
of the plaintiff in the incident and at worst that he was involved in
some way in the attack on the deceased. In addition
and on the
information available to the investigating officer the following
emerges. He had received information during the course
of the morning
of 29 September 2007 from Mr Nieuhoff that the plaintiff and Mr
Diedericks were involved in the attack on the deceased
which led to
the death of the deceased. This testimony is corroborated to some
extent by an entry in the investigation diary on
29 September 2007
which reads as follows:
"
1. Suspects identified and arrested as per Braam and Johan.
2.
Eye-witness is identified as Riaan wie is 'n vorige munisipaliteit
verkeer van Kungweni Bronkhorstspruit."
[15]
In addition to this the inspection of the scene by the investigating
officer revealed that indeed what appeared to him to be
blood spots
were close to the area where the plaintiff undertook his work as a
DJ. The totality of this information it was argued
would certainly
constitute a reasonable basis for the arresting officer to form the
suspicion of the involvement of the plaintiff
in the attack on the
deceased.
It
was argued on behalf of the plaintiff that if the arresting officer
had regard to the statement of Sharon Fourie that was available
at
the time of the arrest which was exculpatory of the plaintiff and
taken together with the plaintiffs exculpatory version it
would raise
doubts whether in fact there was a reasonable suspicion. If one has
regard to the statement of Sharon Fourie then it
is clear from her
statement that all she was able to testify to was seeing the deceased
fall from where he was standing. She says
in her statement she saw
him suddenly collapse and some of her customers helped to put him on
the back of Mr Vorster's bakkie.
If regard is had to this statement
then it is strange that if she was observing the deceased she would
have observed the deceased
involved in a fight/scuffle which was the
evidence of the plaintiff. She would have observed the plaintiff
intervening to end the
assault and she would have also observed the
plaintiff assisting the deceased as he fell to the floor. It is
indeed strange that
her statement does not allude to any of the
events deposed to by the plaintiff and accordingly the value that
such a statement
would have in the determination of whether in fact
there was a reasonable suspicion would in my view be very limited and
accordingly
it would be unreasonable on the basis of the
unsatisfactory and the incomplete statement of Sharon Fourie to form
the conclusion
that indeed the plaintiff was not involved in the
incident whatsoever which the statement seeks to suggest, somewhat
contrary to
the testimony of the plaintiff. Her statement to the
extent that it seeks to exclude any involvement of the plaintiff
raises more
questions than it provides clarity.
Another
issue which requires consideration in the totality of all the facts
and information is the apparent inconsistency in the
conduct of the
plaintiff on the evening of 28 September 2007. While his initial
intention was to assist the deceased by preventing
him from falling,
he then abandons all attempts to assist the deceased when he observes
blood on his hands and remains in the bathroom
for an inordinately
long ten minutes. His latter conduct is hardly consistent with the
actions of someone who sought to assist
and prevent harm to the
deceased. His statement as well as that of Ms Fourie, both of which
are exculpatory in nature, must accordingly
be approached with a
measure of caution for the reasons I have offered.
[16]
While a written statement from Nieuhoff was not obtained on 29
September 2007 because he had urgent commitments to attend to
as he
was a long distance truck driver, it would not have been unreasonable
for the arresting officer to have placed some reliance
on Nieuhoffs
oral statement implicating the plaintiff. Nieuhoff after all was a
former peace officer and relying on what he had
made available to the
arresting officer would not in my view be unreasonable. The fact that
Nieuhoffs later statement submitted
some time in December does not in
any way implicate the plaintiff is hardly relevant. What is relevant
is what was before the arresting
officer at the time and at the time
what was available to him was Nieuhoffs communication that the
plaintiff and Diedericks were
involved in the attack on the deceased.
This as indicated earlier is borne out by the entry in the
investigation diary that the
witness has been identified as Riaan.
Coupled with the blood on the scene, the blood spots on the wall in
the proximity where the
plaintiff worked would in my view be
sufficient to form a reasonable suspicion of the involvement of the
plaintiff in the murder.
[17]
I accordingly am satisfied that the defendant has discharged the onus
of proving that the arrest of the plaintiff was lawful.
The
malicious prosecution
[18]
On the basis that a reasonable suspicion existed at the time of the
arrest, subsequent to the arrest the investigating officer
came into
possession of the clothing and the shoes of the plaintiff which
appeared to him at first sight to have blood on it which
would have
fortified his initial suspicion of the involvement of the plaintiff
and which then led to his subsequent decision to
charge the
plaintiff.
[19]
In order to prove that the prosecution was malicious it would have to
be shown amongst other things that the defendant acted
without
reasonable and probable cause and acted with malice. The requirements
for such a malicious prosecution in my view have
not been met in this
matter. From the evidence of Warrant Officer Mawelela it is clear
that when he charged the plaintiff on 30
September 2007, he honestly
believed the plaintiff was involved in and guilty of the murder and
this belief was based on the information
he had gathered and was
available to him. Even if it can be said it was a mistaken belief, I
am satisfied that it was a belief
he honestly held. In Rudolph &
Others v Minister of Safety & Security & Another
2009 5 SA 94
at para [18] the court dealt with the requirement of malice and in
this regard referred to with approval the dicta of the SCA in
Minister of Justice & Constitutional Development v Moleko 2008(3)
All SA 47 where the court said the following relevant to
malice:
"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). Negligence on the part of the
defendant (or, I would say, even
gross negligence) will not suffice."
The
court in Moleko (supra) in dealing with the requirement of malice
took the view that what was required was animus injuriandi
and relied
in this regard on the exposition by Neethling in Law and Delict (5th
ed) that:
"In
this regard animus injuriandi (intention) means that the defendant
directed his will to prosecuting the plaintiff (and
thus infringing
his personality), in the awareness that reasonable grounds for the
prosecution were (possibly) absent, in other
words, that his conduct
was (possibly) wrongful (consciousness of wrongfulness). It follows
from this that the defendant will go
free where reasonable grounds
for the prosecution were lacking, but the defendant honestly believed
that the plaintiff was guilty.
In such a case the second element of
dolus, namely of consciousness of wrongfulness, and therefore, animus
injuriandi, will be
lacking. His mistake therefore excludes the
existence of animus injuriandi."
In
the present matter it could hardly be said that Warrant Officer
Mawelela acted with the recklessness that would ordinarily be
required in satisfying the requirement of animus injuriandi. For the
reasons already given he was possessed of sufficient information
which in my view would militate against the position that he acted
without reasonable and probable cause. In addition it was a
view he
honestly held which in itself would exclude the existence of animus
injuriandi. For these reasons the claim in respect
of malicious
prosecution must also fail.
[20]
In the circumstances I make the following order: The plaintiffs claim
is dismissed with costs.
N
J KOLLAPEN
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
26865-2009
HEARD
ON: 19
th
and 20
th
April 2011
FOR
THE PLAINTIFF: Advocate Geber
INSTRUCTED
BY: Loubser Van Der Walt Imcorporated
FOR
THE DEFENDANT: Advocate Makanja
INSTRUCTED
BY: The State Attorney