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[2011] ZAGPPHC 186
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Mziza and Another v Minister of Police (A565/2010) [2011] ZAGPPHC 186 (27 September 2011)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: A565/2010
DATE:27
September 2011
In
the matter between:
SUNNY
KLEINBOY
MZIZA
..................................................................................
First Appellant
AGNES
MATLOU
...........................................................................................
Second Appellant
and
MINISTER
OF
POLICE
...........................................................................................
Respondent
JUDGMENT
HEADNOTE
Appeal
- absolution - wrongfully issuing ticket - can be considered as
malicious prosecutioning if warranted by the circumstances
- issuing
of ticket setting process in motion - process can be legal or
wrongful or malicious.
GOODEY
AJ:
(Reference
is made to the parties' heads of argument. This is acknowledgement
thereof).
[1]
INTRODUCTION:
(1.1)
The Appellants instituted action against the Respondent in the
Seshego Magistrate's Court for three claims or causes of action.
(1.2)
The particulars are as follows:
1.2.1
In the first claim the appellants claimed payment of the amount of R6
700,00 (six thousand seven hundred rand) in respect
of - money stolen
from the First and Second Appellants shop. In this regard the
Appellants allege that on/about the 27th April
2007 the respondent's
employees, one Superintendent Mukwebu, and other employees of the
respondent who are to the appellants unknown
forced the first
appellant's employee, the second appellant, from the shop or tavern
to accompany them to her residential place.
The respondent's
employees were aware that the second appellant was the only attendant
at such tavern and they failed to give her
the opportunity to lock
the said tavern. At the time when the police officers left with the
second appellant to her residential
place, the tavern was left
unattended and as a result an amount of R6 700.00 was stolen;
1.2.2
In the second claim the appellants claimed payment of the amount of
R20 000,00 (twenty thousand rand) in respect of - damages
as a
consequence of unlawful arrest, alternatively unlawful deprivation of
freedom. In this regard the Appellants allege that that
on the 27th
April 2007 one Superintendent Mukwebu, and other employees of the
respondent who are to the appellant unknown arrested
alternatively
kidnapped the second appellant in that they forced her to accompany
them to her residential area to provide them
with her identity
document;
1.2.3
In the third claim the appellants claimed payment of the amount of
R11 000,00 being for malicious prosecution in that the
respondent
maliciously prosecuted the second appellant and causing her to be
publically humiliated.
(1.3)
The facts in this case can briefly be summarized as follows:
1.3.1
The appellants are the owners of a bottle store with a general dealer
adjacent thereto. (At least the first appellant is the
owner and the
second appellant the employee of the first appellant);
1.3.2
On about the 27th April 2007 the respondent's employees, one
Superintendent Mukwebu, and other employees of the respondent
who are
to the appellants unknown forced the first appellant's employee, the
second appellant, from the shop or tavern to accompany
them to her
residential place. The respondent's employees were aware that the
second appellant was (so she says) the only attendant
at such tavern
and they failed to give her the opportunity to lock the said tavern.
At the time when the police officers left with
the second appellant
to her residential place, the tavern was left unattended and as a
result an amount of R6 700.00 was stolen;
1.3.3
The second appellant was, as aforesaid, forced to be taken to her
home in order to fetch her ID document;
1.3.4
The second appellant was also issued a ticket (based on a
non-existing law) for allegedly not having a license to sell liquor
to be consumed outside the said premises;
1.3.5
She (second appellant) never appeared in court, though she initially
(through the ticket) was summoned to do so.
[2]
AD: CONDONATION:
(2.1)
The Appellants also lodged a substantive application for condonation
in order to prosecute the appeal.
(2.2)
I am of the view that this aspect has properly been explained and
that it should be granted.
(2.3)
The following order is thus made:
"The
Appellants application for condonation is granted."
[3]
THE LAW:
(3.1)
Arrest and detention:
3.1.1
The onus is on the Defendant. In this regard HARMS:
Precedents of
Pleadings (2nd Ed) says the following on page 46:
"Wrongfulness:
An arrest or detention is prima facie wrongful. It is not necessary,
therefore, to allege or prove wrongfulness.
It is for the Defendant
to allege and prove the lawfulness of the arrest or detention."
3.1.2
HARMS says on page 47:
"Thus,
when police have arrested and detained a person, once the arrest and
detention are admitted the onus of proving lawfulness
rests on the
State"
(My
emphasis)
(3.2)
Malicious proceedings:
3.2.1
HARMS says on page 273:
"Cause
of action: The cause of action of a claim for damages caused by
malicious criminal or civil proceedings is the actio
iniuriarum. The
Plaintiff bears the onus in respect of all the elements of the
delict, including that of animus iniuriandi."
3.2.2
HARMS on page 275:
"Wrongful
legal proceedings: A claim for malicious legal proceedings differs
materially from one based on wrongful legal proceedings.
Examples of
wrongful legal proceedings include attachment or execution of
property or an arrest which is wrongful because it took
place without
a writ or warrant. These cases have two special features: first, the
Defendant must allege and prove the lawfulness
of the execution or
arrest and, second, the absence of animus iniuriandi is no defence,"
(My emphasis)
(3.3)
Absolution:
3.3.1
ERASMUS: Superior Court Practice at B1 - 292/293:
"At
the close of the case for the Plaintiff." It is to be noted that
where the Defendant adduces his or her evidence first,
either because
he or she bears the burden of proof or because, by reason of an
admission or presumption, the duty to adduce evidence
is on him or
her, there can be no question of absolution from the instance being
granted, if the Defendant fails to discharge the
burden of proof or
the duty to adduce evidence, the proper order would be judgment for
the Plaintiff." (My emphasis)
"When
absolution from the instance is sought at the close of the Plaintiffs
case, the test to be applied not whether the evidence
established
what would finally be required to be established but whether there is
evidence upon which a court, applying its mind
reasonably to such
evidence, could or might (not should, or ought to) find for the
Plaintiff...
In
deciding whether absolution should be granted at the close of the
Plaintiff's case, it must be assumed that in the absence of
very
special considerations, such as the inherent unacceptability of the
evidence adduced, the evidence is true."
3.3.2
HARMS defined the test for absolution in Gordon Lloyd Page &
Associates v Rivera & Another 2001 (1)SA88 (SCA):
This
implies that a Plaintiff has to make out a prima facie case - in the
sense that there is evidence relating to all the elements
of the
claim - to survive absolution because without such evidence no court
could find for the Plaintiff (Marine & Trade Insurance
Co Ltd v
Van der Schyff
1972 (1) SA 26
(A) at 37G - 38A; Schmidt Bewysreg 4th
ed at 91 - 2). As far as inferences from the evidence are concerned,
the inference relied
upon by the Plaintiff must be a reasonable one,
not the only reasonable one (Schmidt at 93). (My emphasis)
3.3.3
In Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958 (4)
SA 307
(T) at
309, Boshoff J stated the following:
"If
the evidence tendered by the Plaintiff is not only not convincing,
but actually found by the trial Court to be an utter
fabrication...
or, if it be a fact that is too vague and contradictory to serve as
proof of the question in issue,,. then it would
be evidence on which
a reasonable man would not find, and the Court would be perfectly
justified in granting absolution from the
instance at the close of
the case for the Plaintiff.
Prima
facie evidence is defined as evidence requiring an answer, or
evidence that will be conclusive if the opponent does not adduce
an
answer in rebuttal."
(3.4)
Thus it is clear from the aforesaid:
3.4.1
When there is an arrest or detention the onus to prove lawfulness is
on the Defendant.
3.4.2
In order for the State to bear the onus, arrest or detention must
have been admitted or proved.
3.4.3
In the case of malicious proceedings, the Defendant must prove the
lawfulness of the arrest.
3.4.4
If the onus is on the Defendant, there is no room for absolution at
the end of the Plaintiff's case.
3.4.5
It must be assumed (as to absolution) that the evidence is true.
[4]
IN CASU:
(4.1)
Only the Appellants evidence is before the Court.
(4.2)
Absolution on all three claims were granted at the close of
Appellants' case.
[5]
ARGUMENT ON BEHALF OF THE PARTIES:
(5.1)
The first claim:
5.1.1
In this regard the Appellants submit in paragraphs 5.1, 5.2 and 5.4
of their heads:
"5.1
With regard to the first claim, it is submitted that the Honourable
Magistrate erred in finding that there was no evidence
to
substantiate that an amount of R 6700.00 existed in the relevant shop
at the time of the incident.
5.2
The common cause fact are, it was testified on behalf of both the 1st
and 2nd appellant that an amount of R6700.00 was present
in the shop
at the time of the incident, that the same amount was stolen and that
the event transpired whilst the Respondent's
employees were with the
2nd Appellant.
5.4
The testimony of both appellants was the same with regard to the
amount, and evidence was further led that receipts for the
amount was
in fact available, even though not at court. The fact that reference
to such receipts were made by both witnesses, even
though the
documents were not at court, shows that the evidence is not vague or
contradictory. It also shows that theft of the
amount is a reasonable
inference, even though it might not be the only reasonable inference
based on the evidence and facts before
Court."
5.1.2
The Respondent submits in this regard (in paragraph 6, 7 and 8 inter
alia as follows):
"However
when one analyses his testimony It Is apparent that when the R6
700.00 allegedly disappeared he was nowhere at the
shop. In fact even
before the question of the disappearance of the R6 700.00 was raised
the first plaintiff had already left the
shop. The first plaintiff
correctly states that when he came back Agnes told him that the
police were harassing her, she even lost
her money. As far as this
claim is concerned the first plaintiff's evidence sheds no light as
to the disappearance of the R6 700.00,
if the said amount indeed
disappeared in the first place. His lawyer correctly indicates to the
first plaintiff that "Ok,
that is hearsay."
See:
page 32 at par 25 of the record"
7.1
Whilst Superintendent Mukwevo was busy requesting her identity
document she followed at the counter where she was
working.
He even stood behind the counter behind the second plaintiff
requesting the second plaintiff to give him the identity document;
See:
page 53 at par 1-10 of the record
7.2
when Superintendent Mukwevo found her at the counter the money was
over there and he was harassing her and according to her
he might
have seen the money.
See:
page 56 at par 1- 5 of the record"
"8.
When
one carefully analyses the evidence of the second plaintiff there is
nowhere in her testimony where she says she saw Superintendent
Mukwevo taking the money. In fact when specifically asked whether she
saw Superintendent Mukwevo taking that money she correctly
conceded
that she never saw him with her naked eyes taking the money but that
Superintendent Mukwevo was with her at the counter."
(5.2)
The second claim:
5.2.1
The Appellants submit in paragraph 6.1 to 6.3 of their heads:
"6.1
With regard to the second claim, it is submitted that the Honourable
Magistrate erred in finding that the 2nd Appellant
was not at the
very least unlawfully deprived of her freedom. No evidence was led on
behalf of the Respondents employees and as
such the Appellants'
version was never disputed by contrary evidence.
6.2
As is clear from the Honourable Magistrate's judgement, only the
question of whether an arrest was made was considered.
6.3
The 2nd Appellant's testimony was clearly to the effect that she was
harshly grabbed, pulled and forced into a police vehicle
without
being lawfully arrested and with the only intent being to obtain an
identity number."
5.2.2
The Respondent submits inter alia in paragraph 9 of his heads:
"The
second plaintiff on the second claim alleges that she was arrested or
abducted by the police. But during cross-examination
following
important questions were put to her and the answers thereto:-
"So
you were arrested on the day in question? No this, they just said
they want the identity document. And you agree with me
that is not a
wrongful arrest? They want it by force, I was saying I do not have
it".
See:
page 103 at par 25 of the record"
(5.3)
The third claim:
5.3.1
In this regard the Appellants argue as follows in paragraph 7 of
their heads:
"7.1
With regard to the third claim, it is submitted that the Honourable
Magistrate erred in finding that there was no basis
for malicious
prosecution, as the 2nd Appellant was never in fact called to testify
in open court.
7.2
To be successful in a claim for malicious prosecution, the following
would have to be proven, as set out in Ochse v King William's
Town
Municipality
1990 (2) SA 855
(E) at 857.
7.2.1
That the Respondent's employee instigated or instituted the
prosecution;
7.2.2
That in so doing he was acting without reasonable and probable cause;
7.2.3
That he was actuated by an improper motive (malice);
7.2.4
That the proceedings terminated in the 2nd Appellant's favour.
7.3
No reference is made to a requirement that a person must physically
and actually appear in court for a claim for malicious prosecution
to
be valid. It is thus on this basis that the 2nd Appellant's
prosecution for an alleged transgression of a section of an act,
which has in fact been repealed, cannot be interpreted in any manner
other than malicious prosecution, unless the Respondent's
employees
in fact testified to the contrary, which never occurred.
7.4
With regard to the requirements for malicious prosecution, the
Respondent's employees were clearly the instigators of the
prosecution,
that such prosecution was in fact without reasonable or
probable cause, that according to the evidence led by the 2nd
Appellant
the Respondent's employees acted with malice, and that the
prosecution terminated in favour of the 2nd Appellant.
7.5
It is clear that the Honourable Magistrate, on the evidence before
court, erred in not finding that a reasonable person could
find in
favour of the 2nd Appellant." (My emphasis)
5.3.2
The Respondent submits in paragraph 10 inter alia as follows:
"The
second plaintiff alleged that she was maliciously prosecuted. She
however conceded that she never appeared before court
going through
the normal criminal court proceedings. The presiding magistrate also
posed a very important question to Mr Smit.
In simple he asked him
that if a traffic officer issues you with a fine ticket for violating
a traffic rule but it later transpires
that such fine ticket was
wrongly issued, can we say that the person who was wrongly Issued
with the fine ticket was maliciously
prosecuted.
See:
page 124 of the record
The
second plaintiff was simply issued with a ticket and not prosecuted.
Even if one was to agree that issuing of a fine ticket
falls within
the meaning of prosecution the question still needs to be answered as
to whether there was any element of malice on
the part of the
police?"
(My
emphasis)
[6]
DISCUSSION:
(6.1)
Ad: First Claim - R6 700,00:
6.1.1
There is no prima facie evidence that there was R6 700,00 present in
the shop - see par 5.1.2 above.;
6.1.2
The fact that they (appellants) did not produce receipts in Court,
but testified that same were available, is very suspicious.
They are
dominus lites and should have realized the importance of the
receipts.
6.1.3
The testimony of the Second Appellant that when Superintendent
Mukwevo "found" her at the counter the money was
over there
and he was harassing her and according got her he might have seen the
money, calls for no explanation. It is so improbable
that it can only
be regarded as false or farfetched.
6.1.4
Counsel on behalf of the appellants conceded that there is no
evidence as the money ever being in the shop or having been
stolen as
alleged.
6.1.5
In view of the aforesaid, I am of the opinion that the appeal should
be dismissed.
(6.2)
Ad: Second Claim - unlawful deprivation of freedom:
6.2.1
There is at least prima facie evidence (paragraph 5.2.2 above) that
the identity document was wanted by force, with the prima
facie
evidence that the Second Appellant was forced to be taken home to
fetch it, resulting in her being deprived of her freedom.
6.2.2
That being the case, the onus is on the Respondent in which case
absolution can never be granted.
6.2.3
However, if I am wrong as to the onus (paragraph 6.2.3) then the
evidence of the Second Respondent (paragraph 6.2.1) that
she was
forced home, warrants a reply, in which case absolution should also
have been refused.
6.2.4
Consequently, I am of the opinion that the appeal should be upheld in
this regard.
(6.3)
Ad: Third claim - malicious prosecution:
6.3.1
In this instance it is not a requirement that a person must
physically appear in Court - see paragraph 5.3.1 above.
6.3.2
The issuing of the ticket sets the process in motion and may be
opposed in Court.
6.3.3
Since the issuing of the ticket which sets the process in motion (and
leads to the principle that it may be opposed in Court)
it can either
be legal, wrongful or malicious.
6.3.4
In the latter instance the onus is on the Respondent to allege and
proof the lawfulness thereof in which case absolution is
not
possible.
6.3.5
Fact is that a ticket was issued.
6.3.6
Even if I accept in favour of the Respondent that the issuing was
merely wrongful (as the ticket was based on an incorrect
law) then
the prima facie evidence (which I must accept as true as find same
not inherently false or farfetched) an answer is called
for.
6.3.7
In view of the aforesaid, this ground should also be upheld.
(6.4)
In the premises, I make the following order:
"1.
The appeal is upheld with costs.
2.
The Magistrate's order is substituted with the following:
"The
Defendants application for absolution is refused with costs."
GOODEY
AJ
I
agree
MABUSE
J
Date
of hearing: 13/09/2011
Date
of Judgment: 23/09/2011
On
behalf of the Appellants:
ADV
HANNO STEYN - BROOKLYN CHAMBERS
JOHAN
KRIEK ATTORNEYS -
PRETORIA
Tel:
012 803 4719
On
behalf of the Respondent
ADV
MG MASHABA - 082 860 9949
THE
STATE ATTORNEY PRETORIA