C v C and Others (205/2019) [2021] ZASCA 12 (3 February 2021)

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[2021] ZASCA 12
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C v C and Others (205/2019) [2021] ZASCA 12 (3 February 2021)

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SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 205/2019
In the matter between
G[…]
C[…]

APPELLANT
And
J[….]
C[…] (born P[…])
FIRST

RESPONDENT
THE
MINISTER OF SAFETY AND SECURITY                 SECOND

RESPONDENT
THE NATIONAL
PROSECUTING AUTHORITY
OF
SOUTH AFRICA

THIRD

RESPONDENT
Neutral
citation:
C[…]
v C[…] and Others
(Case no
205/2019) [2021] ZASCA 012 (3 February 2021)
Coram:
CACHALIA, VAN DER MERWE, SCHIPPERS,
DLODLO and NICHOLLS JJA
Heard:
20 February 2020
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on 3
February 2021.
Summary
:
Delict – claim for damages for malicious prosecution,
defamation and wrongful arrest and detention
– whether
animus
iniuriandi
and absence of reasonable
and probable cause for malicious prosecution proved – whether
animus iniuriandi
for defamation proved – whether defendant’s failure to
testify reasonable.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Baartman J sitting as court of first
instance):
1
The appeal against the dismissal of the claims against the first
respondent
for malicious prosecution and defamation is upheld with
costs, including the costs of two counsel;
2
The appeal against the dismissal of the claim against the second
respondent
(the Minister) is upheld only to the extent that the
appellant’s detention from the time of the confirmation of his
alibi
on the video material on 19 September 2012, until his
appearance in court the following day, is declared unlawful. Save as
aforesaid,
the appeal is dismissed. The Minister is liable for half
of the appellant’s costs on appeal, including the costs of two
counsel;
3
The appeal against the dismissal of the claim against the third
respondent
(the NPA) is dismissed. Each party is to pay its own costs
on appeal.
4
The order of the court a quo is set aside and replaced with the
following
order:
‘
(a)
The claims against the first defendant are upheld with costs,
including the costs of two counsel;
(b)
The claim against the second defendant (the Minister) is upheld only
to the extent that
the plaintiff’s detention from the time of
the confirmation of his alibi on the video material on 19 September
2012, until
his appearance in court the following day, is declared
unlawful. Save as aforesaid, the claim is dismissed. The Minister is
liable
for the plaintiff’s costs, including the costs of two
counsel;
(c)
The claim against the third defendant (the NPA) is dismissed with
costs, such costs
to be limited to the costs incurred by the NPA as
if on exception.’
JUDGMENT
Cachalia JA (Van der
Merwe and Dlodlo JJA concurring)
[1]
I have read the judgment prepared by my colleagues Schippers JA and
Nicholls JA. I
regret that I am unable to agree with their assessment
of the facts, their treatment of the legal issues, and the
conclusions to
which they have come.
[2]
The appellant was the plaintiff and his erstwhile wife, who is the
first respondent,
was the first defendant in the court a quo. The
Minister of Safety and Security (the Minister) and the National
Prosecuting Authority
(the NPA), who are the second and third
respondents, were the second and third defendants. The plaintiff
claimed damages from:
the first defendant for malicious prosecution
and defamation; the Minister for unlawful arrest and detention; and
the NPA, for
wrongful prosecution.
[3]
The claims arose from a false complaint the first respondent made to
the police, wherein
she alleged the plaintiff had brutally assaulted
and raped her on 18 September 2012. Following her complaint, the
police arrested,
charged and detained him. He was released on bail,
after spending 18 days in custody. The charges were withdrawn a year
later,
on 11 September 2013.
[4]
The plaintiff’s action against the defendants proceeded in the
Western Cape
Division of the High Court (Baartman J), Cape Town, on
20 June 2017. The high court found that the plaintiff had not
assaulted
and raped the first respondent, as alleged. Nevertheless,
it dismissed both the plaintiff’s claims against her on the
ground
that she reasonably believed he had attacked her. The high
court also dismissed the claims against the Minister and the NPA. I
set out the facts pertaining to the claims against the first
defendant, before considering the claims against the Minister and the

NPA. I shall henceforth refer to the appellant as the plaintiff and
the first respondent as the defendant.
The Facts
[5]
The plaintiff and defendant were married in September 2004. They have
one son, ‘L’,
who was born in February 2006. They lived
on a farm, Driefontein, in the district of Ceres, near Cape Town,
until they began living
separately, in December 2009. He moved to the
town and she remained on the farm, with L. They were divorced on 24
July 2012, after
a nine-day divorce trial.
[6]
On Monday, 17 September 2012, at 20h00, the plaintiff drove to the
Winelands Casino
Hotel. He arrived there an hour later, where he
spent the night with his friend, Ms Rowena Titus. They left together
for Cape Town
at 07h00 the following morning, on 18 September 2012.
After attending to their business in the City they returned to his
home at
Ceres, at about 18h00, where they planned to spend the night.
[7]
Unbeknown to the plaintiff, or Ms Titus, another train of events was
unfolding on
the same day. Ms Nicole Faul, a friend of the defendant,
received a call from her at about 06h30. She asked Ms Faul to come to
the farm to collect L. Ms Faul arrived shortly afterwards. L escorted
her upstairs to his mother’s bedroom. Ms Faul found
the
defendant lying naked in bed. She appeared to be shivering and looked
scared. Ms Faul, who testified on behalf of her
friend,
explained that the defendant was reluctant to talk about what had
happened to her, but intimated that her ex-husband was
responsible.
Ms Faul noticed that the house was in disarray and the defendant’s
clothes were strewn all over. There was a
piece of wire tied around
the leg of the dining room-table, the chairs had been knocked over
and there was broken glass on the
floor inside of the back door.
[8]
Ms Faul convinced the defendant to accompany her to her home, where
the defendant
washed and was given a clean set of clothes. According
to Ms Faul, the defendant insisted that no one should know what had
happened
to her. But she agreed to see Dr Laubscher, the district
surgeon, later that day, as Ms Faul had suggested.
[9]
Dr Laubscher examined the defendant at 13h40. He recorded her
injuries, which are
set out in the judgment of the court a quo. He
testified that she told him that the plaintiff had sexually assaulted
her at 22h00,
the previous evening. His examination revealed injuries
consistent with a severe assault, but he found no conclusive evidence
of
any sexual assault. He also testified that she was reluctant to
report the incident to the police, but that he had persuaded her
to
do so.
[10]
Later that afternoon, the defendant made a statement to the police in
which she graphically described
that the plaintiff had assaulted her,
raped her both vaginally and anally, and tied her up on the kitchen
table with a piece of
wire, before leaving. According to the
statement, the incident occurred between 05h00 and 06h00 on the
morning of 18 September
2012, and not at 22h00 the previous evening,
as she had told Dr Laubscher. The statement, described as ‘A1’
in the
record, is reproduced in the judgment of the court a quo. Its
admission as evidence is one of the issues in this appeal.
[11]
Shortly before midnight on the same day, the police arrived at the
plaintiff’s home. He
was with Ms Titus. The police officers
informed him that the defendant had laid charges against him as
described in the statement.
He explained that he was innocent, which
was clear from the fact that he had been elsewhere at the time of the
alleged incident.
This notwithstanding, he was taken into custody and
charged. I set out these facts in more detail later, when dealing
with the
case against the Minister for unlawful arrest and detention.
On 8 August 2014, two years after the incident, the plaintiff issued

summons against the defendant, the Minister and the NPA.
[12]
In response to the claims against the defendant for malicious
prosecution and defamation, arising
from the false allegations
against him, the defendant instructed her attorneys not only to
defend the claim and file a plea, but
also to counterclaim for
damages arising from the alleged assault and rape. The allegations
relied upon for this claim were the
same she had made in her
complaint to the police, two years earlier. Her plea was filed on 21
October 2014 and her counterclaim
on 13 November 2014. Her statement
(A1) was annexed to her plea.
[13]
With the trial date looming, the defendant’s attorneys filed an
expert notice in terms
of rule 36(9) of the Uniform Rules of Court on
17 February 2017, indicating that Dr Larissa Panieri-Peter, a
specialist forensic
psychiatrist, would testify for the defendant.
They attached an expert report from her dated 16 February 2016. It
appears from
the report that Dr Panieri-Peter first consulted with
the defendant on 21 September 2012, four days after the alleged
incident.
The defendant has been her patient since then, and was her
patient during the trial. Dr Panieri-Peter’s brief was to
prepare
expert comment on the basis that the plaintiff had an alibi
that would prove that he could not have attacked the defendant.
[14]
Her report was prepared exclusively from the factual information
provided by the defendant. It
diagnoses the defendant as suffering
from post-traumatic stress disorder (PTSD). The condition, according
to the report, causes
the defendant to develop panic symptoms when
traumatic experiences of her marriage are triggered. The impending
court proceedings
had this effect on her and also caused her to
struggle to focus. The report concludes that the defendant would not
be able to meaningfully
testify in court regarding the incident.
[15]
The report states that it does not comment on the facts of the case –
particularly, whether
the plaintiff was in fact the defendant’s
attacker – but, it conspicuously proffers a sweeping opinion on
both the
key factual and legal issues in the case. In this regard Dr
Panieri-Peter says:
‘
I
. . . have no doubt that Ms C[…] believes the perpetrator of
her rape and attack to have been her husband. If that cannot
be so,
then it must have always been that the experience she suffered on
that night was similar in some ways to other experiences
she has
suffered, or that there were aspects of the experience that caused
her to believe it to be so . . . If her beliefs cannot
be true, as
deemed by the Court, then it is my psychiatric view that she has a
mistaken belief, rather than any other psychiatric
phenomenon or
malicious intent.’
[16]
It thus became apparent to the plaintiff’s attorneys that the
defendant may abandon her
original defence to the claim against her
for malicious prosecution, namely, that the plaintiff had in fact
attacked her, and that
she was preparing an alternative defence based
on this report. They, therefore, requested further particulars as to
whether the
defendant was persisting with her denial that she had
laid false charges against the plaintiff in response to his claim
against
her. They also sought clarity on whether she intended
testifying at the trial, in light of Dr Panieri-Peter’s opinion
that
she would not be able to.
[17]
On 19 April 2017, the defendant’s attorneys replied to the
request for further particulars,
equivocally, stating that she
‘genuinely believed her version (as described in the A1
statement) to be correct’. They
added that in view of Dr
Panieri-Peter’s opinion regarding her ‘current emotional
condition’ (five years after
the alleged attack), it was not
advisable for her to testify. They also withdrew her counterclaim,
which contained the same allegations
of the sexual assault as the
plea. This, almost three years after she had instructed her lawyers
to pursue the action against the
plaintiff. However, the defendant’s
plea that the plaintiff had sexually assaulted her remained, and was
not amended during
the trial. Dr Panieri-Peter filed a supplementary
report on 12 June 2017.
[18]
The defendant also delivered an expert notice and a report prepared
by a clinical psychologist,
Ms Tanya van der Spuy, who was the
defendant’s psychotherapist at the time of the alleged
incident. The report was prepared
on 4 October 2012, five years
before the trial commenced and shortly after the alleged attack on
the defendant. As with Dr
Panieri-Peter’s report the only
factual information at Ms Van der Spuy’s disposal was provided
by the defendant, who
reported that she had ‘experienced
prolonged and severe sexual and emotional abuse’ by the
plaintiff throughout the
marriage. Ms Van der Spuy also diagnosed the
defendant as suffering from PTSD, which, the report read, ‘was
consistent with
exposure to severe and ongoing threats to her
physical and emotional safety and integrity’. The report also
offered an opinion
that the defendant’s ‘fears for her
safety and that of her child [were not] fabricated or irrational’.
[19]
The high court’s treatment of the evidence of both Dr
Panieri-Peter and Ms Van der Spuy
is also strenuously disputed in
this appeal. The trial commenced on 20 June 2017.
[20]
The plaintiff testified, and, in light of the defendant’s plea
that he had attacked her,
was compelled to adduce evidence to prove
his alibi. After closing his case and the defendant’s
witnesses, including the
experts, had testified, the defendant’s
counsel informed the court, on 5 December 2017, following seven days
of evidence,
that they would attempt to call her to testify. She
arrived at court but, having spent less than two minutes on the
witness stand,
informed the judge, on Dr Panieri-Peter’s
advice, that she was unable to continue. The matter then stood down.
[21]
When the trial resumed on 20 March 2018, counsel informed the court
that the defendant remained
unable to testify. No attempt was made to
provide her testimony on another date or in another manner, through
an intermediary or
from another venue, to obviate the need to testify
in the plaintiff’s presence. In the result, the defendant did
not testify
and the plaintiff was denied the right to cross-examine
her on the central issues in the case: the false allegations giving
rise
to his prosecution and her state of mind at the time of the
alleged incident.
The
evidence
[22]
There is no dispute that the parties had a destructive marriage,
which ultimately led to their
separation and divorce. The plaintiff’s
evidence was that he had never physically or sexually abused the
defendant, and that
the charges against him regarding the violent
sexual assault were false.
[23]
The plaintiff referred to the proceedings in the Magistrate’s
Court in 2010, when the defendant
had applied for an interim
protection order against him under the Domestic Violence Act 116 of
1998 (‘the domestic violence
proceedings’). In her
testimony then, on 24 April 2010, she said that he had verbally
abused her, sometimes in the presence
of friends and relatives, which
affected her and L. But she was emphatic that he had never assaulted
her. In subsequent proceedings,
on 12 May 2011, when the plaintiff
sought to set aside the interim order unsuccessfully, the court
accepted that there had been
no physical abuse. The defendant’s
evidence then was contrary to what she had told both Dr Panieri-Peter
and Ms Van der Spuy
about his alleged physical and sexual abuse of
her.
[24]
By the end of the trial, there was no dispute that the plaintiff had
not entered the defendant’s
home or attacked her as alleged in
her statement to the police, her pleadings and throughout the trial.
His alibi, that he was
at the hotel in Worcester with Ms Titus, was
proved beyond any doubt. The defendant’s pleaded defence was,
therefore, undeniably
false.
[25]
Faced with this difficulty, which the defendant’s lawyers had
apparently anticipated, they
sought to make the case that she
honestly believed the plaintiff had attacked her on 18 September
2012, while steadfastly not admitting
that he had in fact not done
so. The apparent building block for this defence was that she was
suffering from PTSD at the time
of the alleged attack. To support
this defence they called in aid primarily the evidence of Ms Van der
Spuy and Dr Panieri-Peter.
[26]
Ms Van der Spuy testified that she began seeing the defendant on 25
July 2012, a day after her
divorce. She saw the defendant eleven
times, between then and 3 October 2012. Her report was prepared
the following day. Surprisingly,
it does not refer to the alleged
events of 18 September, which one would have expected it to. Ms Van
der Spuy confirmed the
findings of PTSD. Among the symptoms the
defendant exhibited was anxiety, which sometimes bordered on panic.
The defendant was
unable to give a coherent account of the
difficulties and traumatic incidents during her marriage. One of the
reasons she gave
Ms Van der Spuy for this difficulty was that she
feared the plaintiff would retaliate.
[27]
Ms Van der Spuy continued to see the defendant until June 2013, after
the alleged incident. She
confirmed that the defendant had not
mentioned that the plaintiff had attacked her on 18 September 2012,
and that she had no independent
evidence or proof pertaining to any
alleged sexual and physical abuse during the marriage.
[28]
Dr Panieri-Peter testified on 5 December 2017. The defendant
consulted her for the first time
on 21 September 2012, a few days
after the alleged incident. She observed the defendant as overtly
injured, struggling to walk,
and obviously distressed.
[29]
Dr Panieri-Peter increasingly became worried about the defendant’s
safety. There were times,
she testified, when the defendant was
stable, especially when there were no ‘legal issues’ and
she was very happy.
But, she continued: ‘whenever there’s
a legal matter of any nature she is triggered into post-traumatic
stress’.
She also diagnosed the defendant with PTSD, which she
described as an anxiety disorder, not a psychotic disorder.
[30]
Dr Panieri-Peter testified that before coming to court on that day (5
December 2012), she met
with the defendant at counsel’s
chambers. The defendant was afraid of seeing or hearing that the
plaintiff was present. As
they entered the court, Dr Panieri-Peter
continued, the defendant wanted to run away. She was actually sick.
This is typical
of people with PTSD: they have a ‘fight-and-flight’
response, which, Dr Panieri-Peter explained: ‘no-one
can
malinger’.
[31]
In response to a question from the court as to why the defendant had
resisted the State withdrawing
charges against the plaintiff, Dr
Panieri-Peter provided an incoherent response, without specifically
answering the question. She
testified further that even though she
had not seen the video, which proved that the plaintiff was elsewhere
on the night of the
alleged attack, she had raised the matter with
the defendant. The defendant’s response was that she did not
care what was
on the video; she knew that the plaintiff did this to
her. As her psychiatrist, Dr Panieri-Peter simply assured the
defendant that
she understood her; it was not her role to question
her. The evaluation of her belief, which, according to
Dr Panieri-Peter
was what this case was about, was that her
husband perpetrated the attack on her. It bears emphasis that despite
the plaintiff’s
objection to the admissibility of this evidence
the court allowed it without ruling on the objection.
[32]
Although Dr Panieri-Peter had not read the evidence in the domestic
violence proceedings she
admitted, under cross-examination, that she
became aware of the fact that the defendant had previously denied any
physical and
sexual abuse before preparing her report. Despite being
aware of this she did not include this information in her report. The
reason
for omitting it, she testified, implausibly, was that the
report would have become ‘long-winded’.
[33]
Dr Panieri-Peter was also unaware that the defendant had participated
fully in the divorce proceedings
in May 2012, and was cross-examined
by the plaintiff over several days, without demur. In fact, the
plaintiff’s undisputed
testimony was that she was confident –
even playful and sarcastic – when answering his questions.
Neither was Dr Panieri-Peter
aware that after the divorce proceedings
the defendant went to the plaintiff’s apartment, twice, to
attend to administrative
matters. Nonetheless, she insisted that the
defendant did not want to be part of ‘these legal proceedings .
. . she just
wants to be free of her ex-husband and the fear she has,
the terror. . . [t]hat fear can’t be malingered’.
[34]
Perhaps, the most extraordinary part of her Dr Panieri-Peter’s
evidence was her admission
that she had not read the statement (A1)
that the defendant had made to the police, the veracity of which was
one of the central
issues in this case.
[35]
Under cross-examination by the plaintiff’s counsel, Dr
Panieri-Peter grudgingly accepted
that as the defendant’s
treating psychiatrist, she was not an independent expert. She was,
therefore, unable to offer an
opinion on the factual disputes in the
case, nor what had happened on 18 September 2012 at the defendant’s
home. Dr Panieri-Peter
further admitted that, in preparing her
report, particularly in relation to the alleged physical or sexual
assault abuse during
the marriage, she had not read the defendant’s
evidence in the domestic violence proceedings. She also conceded,
after being
pressed under cross-examination, that she was unable to
say, as a fact, that at the time the defendant made her statement to
the
police on 18 September 2012, she held a ‘subjective belief’
that her husband had attacked her. And, further conceded,
as she had
to, that this fact finding exercise was the function of the court,
not hers, as her patient’s psychiatrist. She
was, therefore,
unable to offer an opinion as to the defendant’s state of mind
at the time of this incident.
[36]
The other witnesses, who testified on behalf of the defendant,
described other incidents where
the plaintiff was verbally abusive
towards the defendant. Their evidence, referred to in the judgment of
the high court, bear little
relevance to the disputed issues in this
appeal. I shall nonetheless deal with this evidence briefly when
considering the high
court’s reasoning.
The findings of the
court below
[37]
The high court found that the plaintiff proved that he was not
responsible for the alleged attack
on the defendant. It nevertheless
concluded that: the defendant reasonably believed the plaintiff was
her attacker; that the plaintiff
had not proved that the defendant
had acted without reasonable or probable cause when she laid charges
against him or that she
acted
animo
iniuriandi
. It followed that the claim
for defamation also had to fail. The court was also persuaded that
the defendant was ‘too anxious
to testify on the day’.
Before examining how these conclusions were reached it is necessary
to set out the law pertaining
to malicious prosecution and
defamation.
Malicious prosecution
and defamation
[38]
The cause of action in a claim for malicious prosecution is the
actio
iniuriarum.
To establish this claim 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 (c)
acted with malice (
animo
iniuriandi
)
ie with intent to injure the defendant in his good name; and (ii)
that the prosecution failed.
[1]
[39]
Reasonable and probable cause means an honest belief founded on
reasonable grounds that the prosecution
was justified. This imports
both an objective element (reasonable grounds) and a subjective
element (honest belief).
[2]
Animo
iniuriandi
in
this sense means that the defendant, aware that no reasonable grounds
for the prosecution exist, nonetheless initiates the proceedings.
If
reasonable grounds are absent but the defendant honestly believes
that the plaintiff is guilty or that there are reasonable
grounds,
wrongfulness is lacking. This would also occur in the event of a
mistake on the part of the defendant.
[3]
[40]
The onus to prove these requirements rests on the plaintiff. Where a
defendant is proved to have
initiated a prosecution without
reasonable grounds, it does not follow that she acted dishonestly,
nor does it necessarily imply
that she did so
animo
iniuriandi.
[4]
However, in the absence of any other evidence the natural inference
is that the plaintiff has established both. The defendant thus
bears
an evidential burden to rebut this inference regarding her state of
mind, including any mistake that would exclude her liability.
[41]
In an action for defamation the plaintiff must prove that the
defendant intentionally published
the defamatory material. Having
done so, the plaintiff is assisted by a presumption of wrongfulness
and that the defamation was
done intentionally.
[5]
The defendant is thus saddled with a full onus to establish either
some lawful justification or excuse, or the absence of
animus
iniuriandi.
If
the defendant is unaware of the wrongfulness of her defamatory
publication because she honestly believes that her conduct was

lawful, consciousness of wrongfulness, an essential element of
intent, is missing. The honest belief would therefore rebut the

presumption of
animus
iniuriandi
and
thereby exclude intent.
[6]
[42]
In the present matter, however, the defendant’s defence to the
claim for defamation is
that she honestly believed that her attacker
was her husband when she published the defamatory material of and
about him, not that
the publication was lawful on some other basis,
for example truth and for the public benefit, in respect of which she
would bear
the onus. Thus, once the plaintiff establishes a prima
facie case, ie that the defendant published the defamatory statement
about
him to a third party, this casts an evidential burden on the
defendant to adduce evidence as to her state of mind, as with the
case of malicious prosecution.
[7]
The high court’s
reasoning
[43]
I have, with respect, found it almost impossible to glean any clear
reasoning to support the
trial judge’s findings and
conclusions.
[44]
In regard to the evidence of Ms Van der Spuy and Dr Panieri-Peter,
the court acknowledged that
their evidence ‘lacks the
independence required of an expert’. However, it continued,
their ‘observations regarding
her anxiety and inability to
articulate traumatic events’ involving the plaintiff are
relevant, and were supported by both
Dr Laubscher and Ms Faul. There
was further evidence, the court said, arising from the domestic
violence proceedings in 2011, of
the plaintiff’s abusive
behaviour towards the defendant and ‘objective findings of
symptoms generally associated with
anxiety’. The court
concluded that it was, therefore, ‘persuaded that the . . .
defendant was too anxious to testify
on that day [and] that her
reaction in the witness box was not a “charade”: instead
it was a reaction to the traumatic
experience between her and the
plaintiff’.
[45]
In regard to the court’s finding that the defendant reasonably
believed that the plaintiff
was responsible for the alleged attack,
the court seems to have found support for its conclusion from three
sources: First, from
the evidence of the defendant’s sister, Ms
L[…] P[…], who, the court observed, ‘had no
hesitation in
admitting that she still believed’ that he was
responsible. She also believed, the court continued, as did other
members
of the defendant’s family, that the plaintiff was
associated ‘with all or most of the [defendant’s]
calamities’.
Second, the testimony of Mr Prins, who knew the
parties well, but had fallen out with the plaintiff in 2006. He was
convinced that
the person depicted on the video at the hotel together
with Ms Titus, who it is common cause was in fact the plaintiff, was
not
the plaintiff, but someone else. His belief that the plaintiff
was responsible for the attack, therefore, lent credence to her
belief. Third, the court perplexingly ‘assume[d], without
finding, that the lighting was poor at the time of the attack’.

Implicit in this assumption was that the defendant was unaware of who
attacked her, and, therefore, reasonably believed it was
the
plaintiff.
[46]
In regard to the finding that the plaintiff had not shown that the
she acted
animo iniuriandi
,
the court said that the evidence did not establish that she
‘subjectively foresaw the possibility that the plaintiff was

not the perpetrator of the assault’. The court found support
for this conclusion in Ms Faul’s and Dr Laubscher’s

testimony that she was reluctant to lay a charge, and from Dr
Laubsher’s observation that she was somewhat taciturn when
he
examined her after the incident. The high court thus concluded that
the ‘objective independent evidence [therefore] belies
the
presence of malice’.
No admissible evidence
of sexual assault
[47]
As I have said, the court a quo correctly held that the plaintiff had
not attacked the defendant
on 18 September. To overcome the
difficulty that there was no evidence of any attack, the defendant
sought to lead other evidence
to establish this. To this end she
applied to the court to have her the A1 statement admitted as
evidence in terms of
s 3
of the
Law of Evidence Amendment Act 45 of
1988
. The section provides:
‘
3.
(1) Subject to the provisions of any other law, hearsay evidence
shall not be admitted as evidence at criminal or civil proceedings,

unless –
…
(c)
the court, having regard to –
(i) the nature of the
proceedings;
(ii) the nature of the
evidence;
(iii) the purpose for
which the evidence is tendered;
(iv) the probative value
of the evidence;
(v) the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a
party which the admission of such evidence might entail; and
(v) any other factor
which should in the opinion of the court be taken into account,
is
of the opinion that such evidence should be admitted in the interests
of justice.’
[48]
Having found that the defendant was unable to testify on 5 December
2018 because of her ‘mental
state’ the high court
admitted the contents of the A1 statement as evidence at the
conclusion of the defendant’s case.
It justified this on the
ground that:
‘
[M]uch
of the content of the [statement] has been corroborated by police
officers in the course of their duty. It is also not the
plaintiff’s
case that the assault on the [defendant] was fabricated . . . It is
in the interests of justice to allow the
evidence in terms of
section
3(1)
(c)
of
the [Law of Evidence Act]. It is important to bear in mind that the
plaintiff dealt with the evidence sought to be admitted.
In the
circumstances of this matter, the interests of justice trumps any
perceived prejudice [to the plaintiff].’
[49]
This was the sum total of the high court’s reasoning for
admitting the statement as evidence.
It dismissed the plaintiff’s
objections to the admissibility and weight of the evidence. It is
apparent from the prominence
given to the A1 statement in the
judgment of the court a quo that its admission was pivotal to the
court’s findings.
The admission of
hearsay evidence in terms of s 3(1)
(c)
[50]
Generally, a decision on the admissibility of hearsay evidence is one
of law. An appeal court
may, therefore, overrule a decision of a
lower court if it considers it wrong.
[8]
In deciding whether to admit evidence in terms of s 3(1)
(c)
a
court must have regard to the six interrelated factors set out
therein. For present purposes, the nature, purpose and probative

value of the evidence, its possible prejudice to the other party,
and, also the reason for the absent witness not testifying assume

particular significance.
[51]
In
The
South
African Law of Evidence
[9]
the authors say the following concerning the nature of the hearsay
evidence sought to be admitted:
‘
Since
the person upon whose credibility the probative value of the evidence
depends is, in the case of hearsay evidence, not subjected
to the
curial devices designed to identify, assess and eliminate those
aspects of the evidence that render it potentially unreliable,
it is
important for a court to (a) understand what the potential dangers
are; (b) consider the extent to which those dangers actually
arise in
the case before it; and (c) identify factors that tend to reduce or
even eliminate those dangers. Only then will a court
be in a position
to determine the extent of the prejudice caused to an adversary by
the denial to that party of the benefit of
those devices . . .’
[52]
In
Law
of Evidence
,
[10]
in a similar vein, the authors state the following:
‘
The
crucial consideration is to what extent the value of the evidence
depends on the credibility of the absent witness and also
to what
extent the dangers of relying on the evidence are outweighed by
indications of reliability.’
The
authors add that the factors a court may have regard to in this
analysis are (a) the relationship between the absent witness
and the
other party; (b) a possible motive for making a false allegation; (c)
the circumstances under which the absent witness
made the hearsay
statement, and (d) the extent to which the hearsay evidence is
corroborated by other evidence.
[53]
In regard to the purpose of the hearsay evidence sought to be
adduced, the evidence is more likely
to be admitted if it is for a
‘compelling reason’ rather than for a doubtful or
illegitimate purpose.
[11]
The
fact that its purpose is ‘direct, not oblique and its
attainment depends not on speculative inference . . . but squarely
on
the reliability of the hearsay’ will weigh in favour of its
reception.
[12]
[54]
The factors that weigh crucially in this analysis, and which are
usually considered together,
are the probative value or cogency of
the evidence weighed against the prejudicial effect that its
reception may have on the other
party. In this regard both the
strength and the weakness of the evidence must be considered and also
the extent or degree of prejudice
the other party may suffer by being
denied the right to cross-examine the absent witness upon whose
credibility the probative value
of the evidence depends.
[13]
[55]
Finally, the reason the absentee witness does not testify must also
be examined closely. The
fact that the witness is incapacitated or
fears reprisal if she testifies may, in conjunction with the other
factors, weigh in
favour of admitting the evidence.
[14]
[56]
It is evident from the high court’s judgment that it failed to
appreciate and consider
the requirements for the admission of
evidence in terms of s 3(1)
(c)
.
The statement, admitted as evidence, was made by the defendant, whose
marriage with the plaintiff had ended in an acrimonious
divorce. She
had a strong motive to falsely implicate him in an unspeakable crime.
Yet, the trial court showed no awareness of
the danger of admitting
the statement. The defendant’s allegations against her husband
in the statement were indisputably
false, as the high court was
compelled to accept. The hearsay evidence had no probative value at
all. Its admission to the plaintiff’s
prejudice was, and is,
obvious.
[57]
Having had to endure the false allegation that he had sexually
assaulted his erstwhile wife in
the most brutal manner, he was denied
the opportunity to cross-examine her regarding her state of mind when
these events were alleged
to have unfolded. Among the questions she
would have had to answer concerned: the discrepancy in the time, of
about eight hours,
when the alleged incident took place as she had
reported separately to Dr Laubscher and to the police; how she could
have mistaken
the identity of the attacker, who she had observed
closely during the attack and who, she alleged, knew her intimate
family details;
why she had told Ms Van der Spuy and Dr Panieri-Peter
that her husband had physically and sexually abused her during the
marriage,
contrary to her evidence in the domestic violence
proceedings; and why she had not mentioned the attack to Ms Van der
Spuy, during
her consultation on 3 October 2012, two weeks after the
incident, when she had made similar false allegations regarding
physical
and sexual abuse previously.
[58]
The high court’s observation that the plaintiff had ‘dealt
with the evidence’
by responding to the allegations against him
is no answer to the prejudice he suffered by not being able to test
the defendant’s
version. Yet, the judge admitted the statement
in terms of s 3(1)
(c)
in
the interests of justice, because in her view, this outweighed what
she dismissed as the ‘perceived prejudice’ to
the
plaintiff.
[59]
It is also difficult to understand how the judge could have concluded
that ‘much of the
content of the affidavit [had] been
corroborated by police officers in the course of their duty’.
Apart from the investigating
officers, who testified regarding the
condition of the defendant’s home on the morning after the
incident, they did not corroborate
any material aspect of her
statement. On the contrary, the evidence adduced by the police
corroborated the plaintiff’s alibi.
[60]
Regarding the reason for her failure to testify, the court accepted
that the defendant was ‘too
anxious to testify’. And,
that her failure to testify was ‘not a charade’ but a
response to her anxiety in relation
to her interactions with the
plaintiff. But, even if we accept this conclusion, (which I do not as
I deal with later), I consider,
having regard to the other
requirements for the admission of hearsay evidence of this nature,
that there was no compelling reason
for its admission. On the
contrary, it was obviously used to bolster the speculative inference
that the defendant honestly believed
that the plaintiff was
responsible for the attack on her. In the circumstances, the court
erred by admitting the statement as evidence.
It ought to have been
disregarded for what it was: inadmissible hearsay evidence.
The court’s
treatment of the expert witnesses
[61]
Ms Van der Spuy’s evidence concerned her diagnosis, made five
years before the trial commenced,
that the defendant suffered from
PTSD. Dr Panieri-Peter was treating the defendant at the time of the
trial and made the same diagnosis.
They attributed her condition to
the abusive relationship with the plaintiff. Dr Panieri-Peter went
further, stating in her report
that the defendant ‘believes the
perpetrator of her rape and attack to have been her ex-husband’
even ‘if that
cannot be so’. But she accepted that this
fact finding exercise was a function of the court, not hers. She also
claimed that
the defendant’s PTSD was triggered by ‘legal
issues’ with her husband, which meant that she was not able to
‘meaningfully’
testify, in her defence.
[62]
Despite the plaintiff having objected to the admissibility of their
evidence the court made no
ruling on the objection, and evidently
attached considerable weight it. However, apart from their testimony
that the defendant
was diagnosed with PTSD, which was not an issue
between the parties, their testimony about what the defendant had
told them regarding
any physical abuse by her husband, that was
uncorroborated, also ought to have been rejected as inadmissible
hearsay evidence.
Critically, their testimony drew no evidential link
between defendant’s PTSD on the one hand, and her alleged
belief regarding
her husband’s culpability or her state of mind
at the time of the alleged attack, on the other. There was none
because it
was accepted during the trial that PTSD is an anxiety
disorder, not a psychotic disorder. The latter condition, not the
former,
may cause symptoms of delusional thinking, hallucination and
detachment with reality.  Despite this, the court appears to
have decided the case on the basis that a link was established, even
though she made no explicit finding in this regard.
The court a quo’s
reliance on other evidence
[63]
It is difficult to understand how the fact that Ms Faul, Ms L[…]
P[…] and other
members of the defendant’s family, who
all bore considerable
animus
against the plaintiff, and also believed that the plaintiff had
attacked the defendant, was at all relevant to the defendant’s

belief. The high court’s reasoning is illogical. It reasons as
follows: A believes X is the attacker. B and C also believe
X is the
attacker. Therefore, A’s belief that X is the attacker is
reasonable. Similarly, the fact that Mr Prins, who
was also
ill-disposed to the plaintiff, wrongly believed that the plaintiff
was not the person identified on the hotel video footage,
provided no
basis to support this reasoning either.
[64]
But the most extraordinary ‘finding’ appears from this
statement in the judgment
of the high court:
‘
I
assume without finding that the lighting was poor at the time of the
attack.’
What
the court appears to have done here was to make a finding, which it
called an assumption, that the lighting was poor. It thus
found
support for the conclusion that the defendant reasonably – but
mistakenly – believed that the plaintiff was her
attacker. I
find it incomprehensible that the defendant could reasonably have
been mistaken that her husband was her attacker because
the lighting
was poor. There was no evidence regarding the state of visibility
where the alleged incident occurred. It is quite
clear from the
content of her statement to the police, which I have found was
inadmissible, that the plaintiff, not anyone else,
attacked her. The
statement describes the plaintiff as having ‘mad eyes’
and that ‘he stared into my face’.
It continues: ‘he
said that he would hurt my little sister if I told anyone what had
happened. He said my parent’s
wall had holes in it and that he
could see through it . . .’ There is no suggestion that she did
not see her attacker due
to the poor lighting or that anyone else
other than her husband would have been aware of her ‘little
sister’ or the
holes in her parent’s wall. There is thus
simply no room for the assumption that the lighting was poor, much
less for the
assumption to be used as a basis to conclude that the
defendant’s belief was mistaken, but reasonable. Accordingly,
the plaintiff
proved on a balance of probabilities that the defendant
had had no reasonable or probable cause to institute legal
proceedings
against him.
Animus
iniuriandi
[65]
In regard to the finding that the plaintiff had not shown that she
acted
animo iniuriandi
,
the court said that the evidence did not establish that she
‘subjectively foresaw the possibility that the plaintiff was

not the perpetrator of the assault’. The court found support
for this conclusion in both Ms Faul’s and Dr Laubscher’s

testimony that she was reluctant to lay a charge, and from Dr
Laubsher’s observation that she was taciturn when he examined

her after the incident. The judge thus concluded that the ‘objective
independent evidence [therefore] belies the presence
of malice’.
[66]
These findings are unsustainable. As I have pointed out earlier, once
it is found that there
was no reasonable or probable cause for
initiating the prosecution and defaming the plaintiff, the defendant
attracted an evidential
burden to rebut the natural inference that
she acted
animo iniuriandi.
In
the absence of any evidence from her as to her state of mind, or any
other admissible evidence, she faced an almost insurmountable
hurdle
to rebut this inference. The fact that she may have been reluctant to
lay charges initially does not alter the fact that
when she did, she
knew the charges were false. And, having laid the charges, she and
her attorneys were in constant contact with
the investigating
officers to assess their progress with the investigation. There is no
suggestion that she sought to withdraw
the charges at any time.
[67]
Furthermore, she persisted with the false claim and also
counterclaimed in the civil action against
the plaintiff based on the
same false allegation, only to withdraw the counterclaim during the
trial, five years after having laid
charges. Her plea that her
husband had attacked her was never withdrawn. The court a quo’s
finding in regard to the absence
of
animo
iniuriandi
was, therefore, also
incorrect.
The defendant’s
failure to testify
[68]
Dr Panieri-Peters’ opinion regarding the defendant’s
failure to testify clearly weighed
with the high court, but was also
of little value. She testified on behalf of her patient and not as an
independent witness who
was able assist the court with this issue,
which required a close examination of the facts. Dr Panieri-Peter was
simply not familiar
with the facts. Her central thesis was that
whenever ‘legal issues’, as she described it, arose with
the plaintiff
it triggered a ‘fight-or-flight’ reaction,
which was consistent with PTSD. But, she was unable to explain why,
if this
was so, the plaintiff was able to, and did, testify in both
the domestic violence proceedings and the subsequent divorce
proceedings,
despite suffering from PTSD. The high court’s
judgment does not deal with this at all.
[69]
The plaintiff also testified, after being recalled at the end of the
defendant’s case,
that two months after her aborted testimony,
she passed him at a shopping mall, without showing any signs of being
terrified. He
produced a video recording from the shopping mall to
support his testimony. The court dismissed this evidence on the
flimsy basis
that the plaintiff posed no threat to her at the time.
But what the court again disregarded was the obvious point that there
was
no threat to her at all in the court building where court
officials were present, and where she was supported by her lawyers
and
her psychiatrist.
[70]
The high court also ignored the plaintiff’s evidence that the
defendant twice visited his
home, after the divorce, to attend to
administrative matters, which also makes the reason for her failure
to testify – being
terrified of the plaintiff –
implausible.
[71]
In addition, having accepted the plaintiff’s submission that
the defendant could have testified
on another day, and at a venue
other than the court building, the court’s reasoning for
finding that she was too anxious
to testify holds no water.
[72]
The most plausible and obvious explanation for the defendant having
been too anxious to testify,
if she was, was that she must have
realised, and in the absence of any other acceptable evidence, did
realise, that she would
not be able to explain the false charge
against her husband. Her failure to testify, therefore, ought to have
attracted an adverse
inference against her,
[15]
instead of allowing her the opportunity to escape liability for
falsely accusing the plaintiff of a most heinous crime.
[73]
I conclude, therefore, that the high court erred in dismissing the
plaintiff’s claims for
malicious prosecution and defamation
against the defendant.
The claims against the
Minister of Police and the NPA
[74]
The plaintiff’s case against the Minister was that the police
officers had arrested and
detained him unlawfully, and in so doing
caused his further prosecution and detention. His complaint against
the NPA was for having
opposed his release on bail and persisting
with the prosecution despite there being no reasonable grounds for
doing so. The high
court dismissed these claims. The relevant facts
are set out hereunder.
[75]
Following the defendant having laid charges against the plaintiff on
18 September 2012,
Captain Boer, Detective Masiza and two other
police officers arrived at the plaintiff’s home late that
evening. Ms Titus
was with him at the time. They took him into
custody. Captain Boer had the defendant’s statement to the
police and Dr Laubscher’s
report in his possession. He had
also visited the alleged crime scene earlier and seen it in a state
of disarray.
[76]
At the Ceres police station Captain Boer informed him that he was
under arrest on several counts,
including rape, assault and
housebreaking. Captain Boer and Detective Masiza questioned him
regarding his whereabouts the previous
evening and early that
morning. He told them that he was at a casino, at a hotel in
Worcester in the company of Ms Titus. He produced
a hotel receipt to
confirm this. He also explained that they had slept over at the
hotel.
[77]
The plaintiff was allowed to phone his lawyer, Mr Sauls, at about
midnight. He arrived at the
police station soon afterwards. Upon his
arrival Captain Boer phoned the hotel and received confirmation that
the plaintiff had
been there. Captain Boer reported the call to Mr
Sauls, who responded by telling him that in these circumstances the
arrest was
unlawful. Captain Boer did not answer.
[78]
Captain Boer then returned to the plaintiff’s home, accompanied
by him and Mr Sauls.
He conducted a search and returned to the
police station where the plaintiff was detained. Mr Sauls then left.
[79]
Later that morning, on 19 September, Captain Boer and Detective
Masiza drove to the hotel, where
they viewed the video footage, which
confirmed the plaintiff’s alibi. As Captain Boer put it: ‘I
looked at the footage
M’Lady and what I saw . . . was Mr C[…]
on the video’. They then returned to the police station and
charged
the plaintiff.
[80]
When asked, under cross-examination, whether he had considered
releasing the plaintiff in light
of the video material, Captain Boer
answered that he had not because ‘there was still an
investigation to be done’.
‘Look’, he continued,
‘he was charged, he had to appear in court’. The
implication was that the court,
not he, would determine whether to
release him.
[81]
The plaintiff remained in custody and appeared in the Magistrates’
Court on 20 September,
during the afternoon. Mr Sauls was
present. The State requested the court to postpone the case for seven
days, until 27 September,
for a bail application, which Mr Saul did
not oppose. He applied only for his client to be held at the police
cells, and not to
be transferred to prison. The application was
granted.
[82]
The plaintiff appeared in court on 27 September. He was represented
by counsel. The evidence
in the bail application was heard over two
days, but was not completed. It was then postponed for a further a
week, to 5 October,
when the evidence was finalised. The state
opposed the plaintiff’s release on bail on the grounds that:
the offences were
serious; the defendant feared for her life; and
that the plaintiff was a flight risk.
[83]
It is, however, common cause that Captain Boer testified at the bail
hearing that both he and
Detective Masiza confirmed that the
plaintiff was depicted on the hotel video footage. The plaintiff and
Ms Titus also testified
to support his alibi. There is no suggestion
that the State presented any false evidence against the plaintiff or
improperly sought
to resist his release. The bail application,
therefore, succeeded and he was released on bail. The plaintiff
appeared in court
several times thereafter, when the matter was
postponed, on each occasion, without demur. The State withdrew the
charges against
him a year later, on 11 September 2013.
The case against the
Minister
[84]
The high court held that the plaintiff’s arrest and detention
was justified, though its
reasoning is unclear. It seems to have
found that it was reasonable for the police to arrest and detain him
because of the seriousness
of the allegations, despite his denial,
because the alibi still had to be investigated. And further, that
once he was charged with
an offence in terms of schedule 6 of the
Criminal Procedure Act 51 of 1977 (the CPA), only a court could order
his release on bail
in terms of s 60(11)
(a)
,
if he adduced evidence which satisfied the court that there were
exceptional circumstances justifying this.
[85]
The high court, however, conflated the grounds for the arrest and the
detention. These are separate
processes, involving two distinct
decisions: the decision to arrest and the decision to detain. The
purpose of an arrest is to
bring a suspect to trial. It is not the
arresting officer’s function to determine whether the arrested
suspect ought to be
detained pending the trial. That is the role of
the court. However, where a senior officer, such as Captain Boer,
arrests a suspect
on a serious charge listed in Schedules 1 or 6, he
must decide whether to release the suspect immediately or detain him
until a
court determines the issue. Whether or not the decision to
detain the suspect pending his appearance in court is rational and
thus
lawful must be determined on the facts of the case, including
the seriousness of the crime alleged to have been committed.
[16]
[86]
But the seriousness of the crime is not conclusive. To take an
obvious example: an arresting
officer has information that X
committed a serious crime and he resides at a particular address. The
police arrive at the address
and ask him to confirm his name, which
he does. He is then arrested and taken to the police station. When
questioned further it
transpires that the arrested person is not X,
but another person bearing the same name. In other words the arrest
was as a result
of a mistaken identity. It is hardly lawful or
rational to detain him further only because he was arrested for a
serious crime.
It follows that while an arrest may be lawful a
detention following an arrest may not be.
[17]
[87]
An arrest and detention is prima facie wrongful. It follows that the
defendant must prove the
lawfulness of the arrest and detention. The
power to arrest without a warrant is conferred by s 40(1)
(b)
of the CPA.
[18]
An arresting
officer must show that in effecting an arrest he entertained a
suspicion based on reasonable grounds. Whether or not
there are
reasonable grounds must be determined objectively.
[88]
It was contended on behalf of the plaintiff that the arresting
officer was obliged to investigate
the plaintiff’s exculpatory
explanation of his alibi before arresting him. It is unclear from the
evidence whether the plaintiff
was formally arrested at his home or
later at the police station. I shall, however, assume in his favour
that he was under arrest
from the time he left his apartment, in the
company of Captain Boer and his colleagues. It is apparent from the
evidence that the
decision to arrest him was made before the police
arrived at the plaintiff’s home on the evening of 18 September
2012. I
accept, too, that he immediately provided an alibi.
[89]
There was, however, no obligation on the police to there and then
investigate the alibi in the
circumstances of this case. It would
have been irresponsible and arguably negligent not to have taken him
into custody until they
had properly investigated his alibi. Captain
Boer was armed with sufficient information to reasonably suspect the
plaintiff to
have committed serious offences. The jurisdictional fact
for a lawful arrest under s 40(1)
(b)
– a suspicion based on reasonable grounds – was clearly
present. The arrest was, therefore, unquestionably lawful.
[90]
This is not the end of the matter. The Minister had to establish the
legal justification for
the plaintiff’s further detention, at
least until his first court appearance. The police could not, as is
often incorrectly
assumed, simply continue to detain him until he was
brought to court. For, as this court said in
Minister
of Police and Another v Du Plessis
:
[19]
‘
[I]f
shortly after an arrest it becomes irrefutably clear to the police
that the detainee is innocent, there would be no justification
for
continued detention.’
[91]
It was clear from Captain Boer’s evidence that he gave no
consideration to releasing the
plaintiff, even after it had become
clear from the video material that the plaintiff was at the casino.
The plaintiff had shown
him the hotel receipts; the hotel confirmed
this when he had phoned to check the alibi, and there was no doubt in
his mind and
Detective Masiza’s that he was the person in the
video. So, when Captain Boer returned from the hotel after viewing
the video
material, which conclusively proved the plaintiff’s
alibi, there was simply no longer any justification to continue his
detention.
[92]
I accept that there were matters that still required investigation,
as Captain Boer testified.
But the alibi had been confirmed. It is
hardly a justification to hold a suspect until every aspect of the
case is fully investigated.
It is clear from Captain Boer’s
evidence that, he believed, wrongly, the plaintiff had to be charged
and detained until he
appeared in court. In the circumstances, the
Minister did not discharge the onus to justify the detention
following confirmation
of the video footage. I thus hold that the
court a quo erred in finding that the detention for this further
period (until his appearance
in court) was lawful.
[93]
In regard to his further detention, that is, after his appearance in
court on 20 September
2012 until his release on 5 October 2012,
the plaintiff also sought to hold the Minister liable. The police
were however not responsible
for his detention following his first
court appearance. He was remanded in custody with the consent of his
attorney. It was not
pleaded, nor was there any suggestion in the
evidence, that the police improperly procured his further
detention.
[20]
The Minister
is, therefore, not liable for the plaintiff’s continued
detention, at the court’s instance, for the period
20 September
until 5 October.
The case against the
NPA
[94]
The plaintiff’s third and final claim is against the NPA. His
particulars of claim alleged
that the prosecution acted wrongfully in
opposing his bail application and persisting with the prosecution on
false charges for
almost a year ‘without an honest belief
founded on reasonable grounds’ that the opposition to bail and
the prosecution
were justified. The pleaded case differs from the
cause of action for malicious prosecution, which requires a plaintiff
to allege
and prove, the intention to injure (
animus
iniuriandi
) in addition to the absence
of reasonable and probable cause, the other requirements being that
the defendant instituted the proceedings
and that the prosecution
failed.
[95]
Counsel for the plaintiff was unable refer to any authority where the
existence of a claim as
pleaded was recognised in our law, and I have
not been able to find any. The best he could do was produce the
reference to ‘wrongful
legal proceedings’ in Amlers
Precedents and Pleadings.
[21]
Examples of wrongful legal proceedings cited there include the
attachment or execution of property and arrest without a valid
warrant. The author points out that these cases have two special
features: first, the defendant must prove the lawfulness of the

execution or arrest, and secondly, the absence of
animus
iniuriandi
is
not a defence.
[96]
If a South African court is to recognise a claim for wrongful
prosecution it would have to be
properly pleaded and argued. The NPA
pleaded a bare denial. It ought to have raised an exception to the
particulars of claim on
the ground that it did not disclose a cause
of action. That would have brought an end to this claim.
[97]
The appeal against the high court’s order dismissing this claim
must thus fail.
Conclusion
[98]
In summary, the appeal against the order of the high court dismissing
the claims for malicious
prosecution and defamation against the
defendant succeeds, as does the appeal against the Minister, but only
in respect of the
unlawful detention of the plaintiff from the time
the police confirmed his alibi on the video recording on
19 September, until
his appearance in court the following day.
The appeal against the dismissal of the plaintiff’s claim
against the NPA fails.
The defendant and the Minister of Safety and
Security are declared liable to the plaintiff for such damages as he
may prove against
them.
[99]
In regard to costs, the defendant is liable for the plaintiff’s
costs in the court a quo
and on appeal. The plaintiff’s success
against the Minister was limited to the unlawful detention for one
day. I, therefore,
consider that the Minister should be liable for
only half of the plaintiff’s costs in this court.
[100]
In regard to the dismissal of the claim against the NPA, I consider
that the plaintiff should be liable only for
the costs against it in
the court a quo as if it had taken exception to the particulars of
claim. The claim did not disclose a
cause of action. The NPA should
have raised an exception to it. That would have brought an end to
this claim. Instead, the NPA
led much irrelevant evidence to oppose
the claim. And, the court a quo decided the case on the basis of this
evidence, even though
there was no cognisable legal claim. In the
circumstances, the plaintiff should only be liable for the costs of
the NPA as if on
exception, and not for any other costs. In this
court each party is liable for its own costs.
[101]   The
following order is made:
1
The appeal against the dismissal of the claims against the first
respondent
for malicious prosecution and defamation is upheld with
costs, including the costs of two counsel;
2
The appeal against the dismissal of the claim against the second
respondent
(the Minister) is upheld only to the extent that the
appellant’s detention from the time of the confirmation of his
alibi
on the video material on 19 September 2012, until his
appearance in court the following day, is declared unlawful. Save as
aforesaid,
the appeal is dismissed. The Minister is liable for half
of the appellant’s costs on appeal, including the costs of two
counsel;
3
The appeal against the dismissal of the claim against the third
respondent
(the NPA) is dismissed. Each party is to pay its own costs
on appeal.
4
The order of the court a quo is set aside and replaced with the
following
order:
‘
(a)
The claims against the first defendant are upheld with costs,
including the costs of two counsel;
(b)
The claim against the second defendant (the Minister) is upheld only
to the extent that
the plaintiff’s detention from the time of
the confirmation of his alibi on the video material on 19 September
2012, until
his appearance in court the following day, is declared
unlawful. Save as aforesaid, the claim is dismissed. The Minister is
liable
for the plaintiff’s costs, including the costs of two
counsel;
(c)
The claim against the third defendant (the NPA) is dismissed with
costs, such costs
to be limited to the costs incurred by the NPA as
if on exception.’
________________
A CACHALIA
JUDGE
OF APPEAL
Schippers
and Nicholls JJA (Dessenting)
[102]
The appellant, Mr G[…] C[…], an Italian citizen, met
the first respondent, Ms J[…] C[…],
in 2000 when they
worked overseas on a cruise liner. She was a waitress and the
appellant, a senior waiter. Ms C[…] is his
junior by 23 years.
They were married in South Africa in 2004 and have a son, born on 20
February 2006. They left life at sea and
in 2005 bought the farm,
Driefontein, in Ceres in the Western Cape (the farm), where they
lived together until 2012.
Prior to the
marriage, Ms C[…] was an extrovert, joyful, carefree, and
happy. She changed drastically after her marriage
to the appellant,
due to his controlling behaviour and the verbal abuse, trauma and
fear to which he subjected her. Her health
deteriorated and in July
2012 she was diagnosed as suffering from Post-traumatic Stress
Disorder (PTSD). Unsurprisingly, the marriage
ended in divorce in
July 2012 and Ms C[…] continued to live on the farm with their
son. The appellant moved to a house in
Ceres.
[103]
On 17 September 2012 the farmhouse in which Ms C[…] lives was
broken into and she was viciously attacked,
tied up with ‘brick
force’ wire and sexually assaulted. After the attack she could
no longer live and work on the farm
and moved to Ceres. In a
statement to the police she identified the appellant as the
perpetrator and he was arrested on charges
of housebreaking and rape.
Subsequently his alibi that he was at a hotel with his girlfriend on
the night in question was confirmed,
and the charges against him were
withdrawn. He sued Ms C[…] for damages in the sum of R500 000
for malicious prosecution
and defamation; and the second respondent,
the Minister of Safety and Security (the Minister), for damages for
unlawful arrest
and detention. In his claim for damages against the
third respondent, the National Prosecuting Authority (the NPA), he
alleged
that ‘the prosecution officials acted wrongfully’
in prosecuting him on false charges. In respect of the latter claims,

the appellant sought an order that the respondents (including Ms
C[…]) be held liable, jointly and severally, for payment
of an
amount of R3 565 000.
[104]
The Western Cape Division of the High Court, Cape Town (the high
court) dismissed the appellant’s claims.
The court (Baartman J)
accepted that when Ms C[…] laid the charges, her belief
that the appellant was her attacker
was reasonable; and held that he
had failed to prove that she acted without reasonable and probable
cause regarding the claim for
malicious prosecution. The court
concluded that the appellant had also failed to prove the requisite
intent (
animus iniuriandi
),
in relation to both malicious prosecution and defamation. The
appellant’s claims for unlawful arrest and detention, and

‘wrongful prosecution’ were also dismissed, essentially
because the criminal case was initially postponed for seven
days by
agreement, and thereafter as a result of the appellant’s bail
application. The claim for ‘wrongful prosecution’
was
dismissed, seemingly on the basis that the appellant’s
detention was at the behest of the court. The appeal is with the

leave of the high court.
The facts
[105]
Between the evening of 17 September 2012 and the early hours of
18 September 2012, Ms C[…] was savagely
attacked and
sexually assaulted in her home on the farm. She made a statement to
the police at 16h45 on 18 September 2012
in which she described
the attack (the A1 statement). The trial court admitted the A1
statement as evidence in terms of s 3(1)
(c)
of the Law of Evidence Amendment Act 45 of 1988 (the Evidence
Amendment Act), because Ms C[…] was in no state to testify,

despite an attempt to do so.
[106]   In the
A1 statement Ms C[…] described the break-in at her home, and
the brutal attack on her person, as
follows:
‘
On
Monday 2012.09.17 at 18:30 my dogs were barking terribly and crying
it is not normal. I was restless the whole time. My little
son . . .
fell asleep at approximately 20:00 in my bed. I had closed the door
with the dogs inside.
I then took a drive to
see if I can observe anything and whether the gate was closed. I
encountered Dawid Malherbe and Poon Malherbe
along the road. I told
them that the dogs were barking. Dawid then said that he will be on
the lookout to see if they observe anything.
He said that they would
close the gate.
I parked the bakkie and
went inside again. I locked my front door. The back door was not
locked but the door was stuck as the wood
swells in winter. The door
has a security gate in front of it and that was locked. The door has
a sliding bolt on it.
I lit a fire and sat down
on the couch in front of the fire. I took a shower later and then
fell asleep in front of the TV. I woke
up with the noise of something
breaking. The television was still on. The fire was out so it must
have been late already. I was
not afraid because I thought it was the
wind that blew something down. I got up and went to the kitchen
because that was where
the noise came from.
I walked down the passage
and the next moment my ex-husband, G[…], knocked me against
the kitchen table. He wore a jacket
made of very smooth material. He
had a small cap on his head. I screamed because I got a fright. I
can’t remember what he
said to me.
He dragged me down the
passage with my arms behind my back. He stomped on my buttocks on the
floor in the passage. He stood on me.
He was very aggressive. I did
not fight back as he only becomes madder. He tore my T-shirt off my
body. I had a sports vest on.
The vest would not tear. He choked me
when he was trying to get it off.
Parts of it I can’t
remember.
I was then on the couch
in front of the fireplace. He said to me that I stole his life. He
told me it was my fault that he could
not see his child. People treat
him like a criminal. It was his habit of hurting me with sex when he
accuses me of things. His
pants were half-way down to his knees. I
did not have pants or underclothes on. I can’t remember when he
took it off. He
then pushed his erect penis into my vagina. It hurt a
lot because I was lying on the small couch. He was standing and
lifted my
legs and pulled it towards his lower body. He lifted me up
so that my lower body rested on the arms of the couch.
I did not talk back at
all. He had mad eyes. It appeared to me as if he was going to lose
his mind. I fell off the couch. I saw
my cell phone lying there. I
tried to get hold of it, but my phone fell to the ground. He pushed
me down there where the wood is
stacked. He knocked my head against
the cement slab. I was standing. He then bent me forwards on the
cement slab so that my head
rested on it. The slab was at the same
time level as my hips, my hip bones hit against the slab. He held my
head down on the slab.
He then pushed his erect penis into my anus
from behind. I tried to get hold of my phone but I could not.
It was very confusing. I
fell over a chair. I fell on the ground onto wire that looks like
netting. He then dragged me to the table
in the dining room. I was
lying with my back on the table, the lower part of my body was
hanging down off the table. He choked
me. He tried to have sex with
me again. He wore denims and it hurt my legs. I pressed my legs
together. I became panicky. Something
fell off the table and broke
and a chair fell over because the table moved. I was hoping that
someone would hear. I fell off the
table and sat on the ground. He
tied my right foot to the right leg of the table. There was a bundle
of wire on top of the table.
He also tied my right hand with the
wire. It was strange stiff wire which could not be bent. He struggled
to tie it. He tied both
my hands. My one hand was tied to the top of
the table and the other hand tied on the side of the table. He stared
into my face.
I looked away. He then said that if I told anyone about
what happened he would hurt my little sister. He then said my
parents’
wall has holes in it and he can see through them. He
threatened me that he would hurt us if I told anyone.
He left me tied up like
that to the table. He then left. He did not use a vehicle. He must
have walked to my residence. He can’t
drive up to the
residence. I waited a while until he was gone. I then called my
little son. He switched on the light. He gave me
the cell phone. I
pressed the button with the hand that was on the table. I could not
get my hands together. I gave the cell phone
to [my son].
I
telephoned Nicole Faul. [My son] climbed on the table to lift the
wire up for me. He struggled a lot. He managed to free one of
my
hands and I could then free my other hand. My son covered me with a
small blanket while he was struggling to loosen the wire.
He took a
long time to untie the wire. [My son] and I lay down on the bed once
I was freed. I waited for my friend. My friend Nicole
arrived at the
farm at approximately 06h45.’
[107]
Ms Nicole Faul, a social worker and Ms C[…]’s friend,
testified that she went to the farm immediately
on receiving the
call. She found Ms C[…] lying naked in bed, shocked, scared
and shivering. Her left eye and lip were blue
and swollen. She asked
Ms C[…] if it was ‘him’, meaning the appellant. Ms
Faul said that Ms C[…] could
never say his name. Ms C[….]
said ‘yes’. She told Ms Faul not tell anybody about the
attack as then ‘it
will go away’. As Ms Faul checked on
Ms C[…]’s son, she noticed that the house was in
disarray. She picked up
a torn shirt belonging to Ms C[…],
whose clothes were all over the place. Her jeans were on the floor.
There was wire tied
around the leg of the dining room table, the
chairs had been knocked over and there was broken glass on the inside
of the back
door.
[108]
Ms Faul managed to convince Ms C[…] to come home with her,
where she had a bath and was given clean clothes.
Ms C[…]
insisted that no one should know what had happened to her. She
refused to report the matter to the police, or see
a doctor. At Ms
Faul’s insistence she reluctantly agreed to be examined by
Dr Laubscher, the local district surgeon,
after Ms Faul told him
what had happened. The appellant accepted Ms Faul’s evidence:
she was not cross-examined at all.
[109]   Dr
Laubscher, a part-time district surgeon since 1987, saw Ms C[…]
at 13h40 on 18 September 2012.
When asked why the examination
was not done at a provincial hospital, Dr Laubscher replied: ‘The
patient did not want to
open a case’. As to her emotional state
at the time of the examination, Dr Laubscher said:
‘
She
did not speak much. She was totally withdrawn, and very anxious, and
very quiet. Was it easy or was it difficult to get out
of her as to
what happened to her? --- It was difficult. She did not want to
speak.’
[110]
Dr Laubscher concluded that Ms C[…] had been severely
assaulted and having regard to the extent of her
injuries, they were
not self-inflicted. She had sustained multiple bruises and abrasions
to her face and her whole body. Both her
wrists were swollen and
bruised. Her hands were badly compressed and numb. Dr Laubscher
said that she suffered neuropraxis
or partial nerve damage to both
hands as a result of being tied up for a considerable period. He
could not come to a firm conclusion
concerning vaginal or anal
penetration; it could not be proved neither disproved. However, Ms
C[…] sustained bruising of
the clitoris, para-urethral folds,
labia minora, labia majora and buttocks, and abnormal redness around
the anal ring.
[111]
It is clear from Dr Laubscher’s evidence that Ms C[…]
was adamant that she did not wish to report
the assault to the police
or speak about it. She felt that no evidence would be found because
the perpetrator was meticulous. Dr
Laubscher struggled to get the
identity of perpetrator from her, in his words, ‘I had to
extract it from her’. Ultimately,
Dr Laubscher persuaded Ms
C[…] to make a statement to the police, after he informed her
that he was ethically bound to report
a sexual assault to the police.
According to his medical report, Ms C[…] indicated that the
time of the attack was 22h00
on 17 September 2012. However, there is
no evidence in the record to indicate that this is correct. Further,
Dr Laubscher testified
that given the severe assault and her
emotional state, one could not rely on the time periods stated by
Ms C[…].
[112]
It was not disputed that prior to the attack on 17 September 2012, Ms
C[…] had been diagnosed as suffering
from PTSD by Ms Tanya van
der Spuy, a clinical psychologist. Ms C[…] had been referred
to her for psychotherapy to assist
her in coping with the impact of
her divorce and the events that led up to it. She had consulted with
Ms C[…] 11 times between
25 July 2012 and 1 October 2012. The
diagnosis of PTSD was made in the second consultation in July 2012
and based solely on information
gathered prior to the attack. Ms Van
der Spuy said that Ms C[…] did not at any stage inform her
that the appellant was her
attacker and had she been so informed, she
would not have arrived at a different conclusion.
[113]   Ms Van
der Spuy testified that Ms C[…] presented as a traumatised
person, and that she was clearly anxious
during the very first
session. She said:
‘
[T]here
were visible signs of anxiety. For example, she talked very fast; she
didn’t complete her sentences; she would stutter
and stammer.
She was very restless in her sessions, so there was a lot of physical
agitation. She was not able to sit still for
long. She would often
get up in the session or ask if she can go get water. She would
sometimes leave, and tell me that she was
feeling nauseous and she
needed to go to the bathroom, which wasn’t in my office. She
trembled at times. Sometimes, when
topics were difficult for her to
talk about, she would go red in her face and she would ask to leave.
She would end sessions early
and she couldn’t continue. That
was apparent from early on in our sessions.’
[114]
Ms Van der Spuy went on to say that this normally happened when Ms
C[…] spoke about sensitive topics, trauma
or abuse. She found
it very difficult to discuss anything concerning the appellant or
even mention his name. This, Ms Van der Spuy
said, was part of PTSD:
anxiety and emotional distress when speaking about memories, images
and thoughts which the patient constantly
tries to avoid. She
ascribed Ms C[…]’s condition to trauma, not wanting to
confront fearful memories and the fear
of being overwhelmed. Ms C[…]
wanted it to appear to others that she was fine, but she was not
coping. Ms Van der Spuy attributed
Ms C[...]’s condition solely
to her relationship with the appellant.
[115]
A consistent theme in Ms Van der Spuy’s evidence, was Ms C[…]’s
inability to give a coherent
or chronological narrative of events, in
particular in relation to traumatic incidents. Ms Van der Spuy
considered that this was
dissociative amnesia, a criterion for PTSD.
It is a defence mechanism for the body to cope with trauma. She
recalled Ms C[…]
resorting to this coping mechanism when
referring to the safe (kluis) incident.  As explained below,
this was an incident
during which Ms C[…], her son and others
were forced to seek refuge in a walk-in safe in the home of Mr
Lodewyk Prins, a
neighbouring farmer, as a result of the appellant’s
abusive conduct.
[116]
The trauma and abuse inflicted upon Ms C[…] by the appellant,
referred to by Ms Van der Spuy, was confirmed
by Ms L[…] P[…],
Ms C[…]’s younger sister. She spent considerable time
with them and said that the appellant’s
relationship with Ms
C[…] had deteriorated drastically and quickly. Ms P[…]
painted a bleak picture of a marriage
becoming increasingly
emotionally abusive. The appellant’s behaviour became erratic,
he would be extremely angry one moment,
in her words, ‘with
veins popping and screaming’, and the next, behaved as if
nothing had happened. Ms C[…]
became nervous (which she
had never been previously), started making excuses for his behaviour
and did everything to try and keep
the peace.
[117]   Ms P[…]
also confirmed what Ms C[…] had related to Ms Van der Spuy
concerning the appellant’s
emotional abuse regarding their son.
As a baby he suffered from colic and cried a lot. The appellant often
shouted at Ms C[…]
to keep the child quiet and leave the room;
as Ms P[…] put it, ‘he couldn’t deal with the
crying baby’.
For this reason, Ms C[…] and the child
often stayed for periods of time with Ms P[…] and her family
in Stellenbosch.
Ms P[…], like other witnesses, flatly
rejected the appellant’s claim that he had done all the
farming. She said:
‘
I
do not agree with this at all, my sister did all the physical labour
even with [the child] being born and having to take care
of the baby,
[who] had to go with her while she drove hours and hours a day to go
deliver hay bales. She also did all the physical
work on the farm
regarding the harvest. [The child] as a toddler had an actual hole in
his head where the hair was missing from
just sitting in the driver’s
baby seat the whole day from very early in the morning until very
late at night while he had
to be with my sister, she taking care of
the baby and doing all the work, doing all the deliveries by herself
while he was lying
in bed watching TV or lying on the couch, watching
TV or gambling at Grand West.’
[118]
Ms P[…] said that as an extrovert, it was important for Ms
C[…] to interact with neighbours and
the farming community in
the Ceres area. This upset the appellant and when members of the
farming community visited them, he was
anti-social and remained in
bed watching television. When she turned 30, Ms C[…] wanted to
host a party at the farm. The
appellant was not in favour of this.
[119]
As time went by Ms P[…] observed that her sister became a
shadow of her former self, she became more anxious,
scared and
worried. On one occasion Ms P[…] was at the farm with the
appellant, who was doing nothing. Ms C[…]
was working late
that night and the child was with her. She called Ms P[…]
‘very worried’ and asked her to put
a pizza in the oven
for the appellant, before he became angry because there was no
dinner. The appellant himself testified that
Ms C[…] ‘treated
him like a king’.
[120]
In 2008 Ms P[…] found Ms C[…] lying alone on a cold
bathroom floor on the farm. She had been lying
there all night after
suffering a miscarriage. The appellant, who had called her family to
advise them of her condition, did not
take her to hospital. Ms P[….]
said that Ms C[…] was extremely ill, ‘very scared and
very nervous’, and
had been working every day in that condition
until she started bleeding in the car one day. She was afraid that
the appellant ‘was
going to freak out’.
[121]
Ms P[…] said that Ms C[…] was stressed about her
situation, and that she ‘was working really
hard at trying to
keep everything peaceful but it was becoming impossible’. She
was disappointed and ashamed of what her
life had become and had too
much pride to tell her parents that her life was a nightmare. Ms P[…]
herself (then 19 years
old) was worried but felt that there was
nothing that she could do, except to spend time with her sister and
help take care of
the child.
[122]   Between
December 2009 and January 2010, the appellant stalked Ms C[…]
at her family’s holiday house
in Onrus on multiple days by
driving past it numerous times, parking outside the house and staring
through the windows; and standing
in the street and staring at Ms
C[…]. This, Ms P[…] said, was ‘very unnerving and
very, very scary’.
He also telephoned Ms C[…] repeatedly
at the farmhouse at night (up to 40 times), which forced Ms C[…]
to disconnect
her landline. On another occasion, and in breach of a
family violence interdict, the appellant walked directly to the table
at
a restaurant at which Ms. P[…], Ms C[…] and their
son were having lunch and smilingly told them to stop accusing him
of
things. Ms P[…] said that her sister was ‘very scared
and freaked out’, and that the boy was ‘very
stressed out
and scared as well’. They left the restaurant immediately.
[123]
Ms P[…] was informed of the attack on Ms C[…] by the
latter’s friend, who advised her that
she and her parents
should not sleep at home that night because the appellant had
threatened to harm them. The A1 statement records
that the appellant
said that if Ms C[…] told anyone about what happened he would
hurt her little sister; that her parents’
wall ‘had holes
in it and he can see through them’; and that he would hurt her
family if she told anyone. For this
reason Ms P[…] and her
mother did not sleep at home that night (her father was out of town
on business). The next morning
she went to Ms C[…] in Ceres,
whom she described as ‘unrecognisable, extremely swollen, pitch
black and blue all over’.
[124]
Evidence of the appellant’s abusive behaviour was also given by
Mr Prins, a neighbour and farmer who has
lived in Ceres all his life.
He knew the C[…] since they started farming in Ceres in 2005.
He said that Ms C[…] was
very afraid of the appellant, who had
no respect for her. Ms C[…] ran an oat hay farm. The hay was
cut into bales and delivered
to horse farms in Somerset West, Strand
and Paarl. Mr Prins witnessed Ms C[…] doing all the work,
including standing
on a truck, loading bales and delivering them.
This prompted Mr Prins’ father to make his tractor and workers
available to
Ms C[…] so that she could load the bales on to
the truck. Since they acquired the farm, Mr Prins said that he never
saw
the appellant farming or doing any work related to farming.
Instead, he would usually get up at 11h00, dress-up and leave for
town.
[125]   Mr
Prins recalled an incident on a Friday night at 20h30 when the
appellant telephoned him, asking for help because
Ms C[…] had
taken ill. When Mr Prins and his wife went to the farm, the appellant
insisted that Ms C[…] first pay
the workers and transport them
to an informal settlement some 12 km away, before she could go to
hospital. Mr Prins effectively
ignored him and took Ms C[…] to
hospital immediately, whilst her son went with his wife to their
farm. Mr Prins and his
wife were also present in 2010 when the
appellant stalked Ms C[…] at their holiday home in Onrus, some
180 km from Ceres.
The appellant took photographs of Ms C[…]
and three couples sitting on a deck, and screamed that he wanted to
see her and
the child. He left after Ms C[…] called the
police.
[126]
On another occasion, Mrs Prins fetched Ms C[…] who slept at
their home that night. She had walked out on
the appellant, who
telephoned Mr Braun, a family friend, the next day to inform him of
this. Mr Braun testified that the appellant
was upset because his
wife and son had left him which he said was due to
the influence of her family and neighbours. The appellant spoke about
guns in
the house that belonged to his father-in-law and said that he
did not know what he was going to do.
Mr
Braun, worried that somebody could get hurt, immediately called Ms
C[…] and informed her that the appellant was ‘in

distress’. Ms C[…] hurriedly terminated the conversation
when she realised that the appellant was driving towards
the Prins
farm. Out of caution that the appellant might be armed, Mr Prins, Ms
C[…], her son and others, took refuge in
the walk-in safe.
When he got to the house, the appellant banged on various doors and
windows for 20 to 30 minutes, shouted that
he knew that Ms C[…]
was there, and demanded to see her. Ms C[…] contacted the
police who arrested the appellant
later that evening. This evidence
by both Mr Braun and Mr Prins went unchallenged.
[127]
On the morning after the attack Mr Prins accompanied Ms Faul to Ms
C[…]’s house. He said that her
left eye was bruised and
her lips were swollen. She was very afraid, her hands were shaking
and she did not realise what was being
said to her as she was in
shock. The place, he said, looked like a crime scene. The door was
broken and there were broken plates
and glass lying around. The
safety gate was broken and lying against a wall. Ms C[…]’s
trousers and shirt were lying
on the floor. Chairs were lying around
and there was brick force wire tied to a leg of the table. Captain
Boer, the investigating
officer, confirmed the observations of Mr
Prins.
[128]   The
appellant however testified that Ms C[…]’s version that
she had been assaulted whilst lying on
her back on a table, or tied
up with wire, was ‘nonsense’. After he had been released
on bail, he encountered Captain
Michael Luff, a detective stationed
at Ceres, at a supermarket who allegedly told him that he was first
at the crime scene where
Ms C[…] ‘alleged she was
raped’. Captain Luff allegedly said that nobody had been on the
table, it was full
of dust. He even suggested that the housebreaking
had been staged and supposedly said:
‘
I’ve
been doing this job for 25 years . . . nobody can fool me, if you
break the window from outside the glass has to be inside
the house,
not outside . . .’
[129]
The appellant went on to say that Captain Luff repeatedly told him,
‘do what you have to do . . . I have
no more respect for these
two’, meaning Ms C[…] and Mr Prins. Captain Luff
was called to give evidence on behalf
of the Minister. He and Captain
Kriel were the first police officers at the scene that morning. He
denied the appellant’s
assertions. Captain Luff testified that
it was clearly a crime scene and he immediately summoned members of
the sexual and child
protection unit to the scene. He concluded that
the person who broke in must have known the house because the middle
window close
to a barrel lock (to open the door from the inside) had
been broken. That person knew the precise location of the barrel lock
and
how entry to the house could be gained. The appellant did not
persist with this story.
[130]
The appellant denied that he banged on the doors and windows of Mr
Prins’ house demanding to see Ms C[…].
He said that he
went there because he had seen Mr Prins and Ms C[…] having
wine in the garden earlier that day and wanted
to see his son. He had
only ‘knocked’ on the doors and windows. Mr Prins’
stepdaughter indicated that the child
was sleeping and he left. As to
farming, the appellant testified that he usually got up at 11h00 to
work on the farm after working
all night on machines, and that he
delivered bales of oat hay to customers. He denied that he was
emotionally and verbally abusive.
He said that Ms C[…] shouted
at him in front of his friends, threw a plate at him and was ‘out
of control’.
Ms C[…], he said, ‘was the abusive
party in the family’, started ‘bullying’ him after
they bought
a second farm and is a ‘violent person’.
[131]   It is
common ground that in 2011 the appellant unsuccessfully attempted to
set aside the protection order. The
magistrate made the following
findings, the gist of which the appellant confirmed in his evidence
in the high court:
‘
What
further transpires, in the testimony of Mrs C[…] [is] that the
applicant is obsessively jealous and follows her everywhere
she goes.
He follows her to church and waits for her at the vehicle, until the
church services are finished. He then gets verbally
abusive . . . He
follows her to various . . . restaurants and also gets verbally
abusive also in front of friends and relatives
and strangers,
afterwards he expresses love and affection for her by way of letters
and emails and sms’s, only to repeat
[this conduct] the
following . . . week.
. . . [H]e even followed
her to her parent’s holiday home in Onrus [where] she and her
son and some friends try to relax on
weekends. He took pictures of
the house, the people and the vehicles parked in the driveway.
The applicant admits that
he was there. He was parked in the public road. He testified that his
presence there was purely coincidental.
I do not think so. From
the evidence presented, even though it is single witness evidence, I
am of the opinion that Mr C[…]
did follow his wife. His
presence at the beach house and all the other things plaintiff
mentioned, is not purely by accident. It
is a pattern that he follows
and he stalks her. One does not bump into the same person by accident
on so many occasions.
. . .
The
conduct of the complainant/applicant falls squarely in the definition
of the Act. His conduct is leading to unwanted stress
[and] harm to
such an extent that Mrs C[…] testified that her hair is
starting to fall out and that she is unable to sleep
properly. She
lives in constant fear.’
[132]
The appellant confirmed that in his application to set aside the
protection order, Ms C[…] had testified
that she could not
cope with the way he intimidated her by screaming at her, which was a
grave assault on her personality (although
he did not physically
assault her). He conceded that whilst the protection order was in
place he had sent many unwanted sms’s
and letters to Ms C[…]
in which he expressed his love for her, and that she had made it
clear that she did not want his
affection. The appellant also
conceded that she tried to have a civil relationship with him for the
sake of their son, which he
misunderstood, rendering the protection
order necessary; and that the magistrate was correct (in refusing to
set aside the protection
order). He further conceded that that he had
travelled from Ceres to Onrus where he took pictures of Ms C[…]
at her
family’s holiday home; that his actions had scared her;
and that for this reason alone, the protection order had to remain
in
place.
[133]
The appellant’s defence to the criminal charges was an alibi.
In sum, he testified as follows. He had an
appointment to see the
Judge President at the high court on 18 September 2012 to ask for a
re-trial of his divorce. He spent the
night at the Golden Valley
Casino (the casino) in Worcester with his partner, Ms Rowena Titus, a
young employee who worked there.
He left his house in Ceres around
19h30 on 17 September 2012 and arrived in Worcester at 20h45. On
his return to the casino
he went to the bar where he watched a
horserace and spoke to people until Ms Titus finished working at
22h00. They then checked-in
at the hotel which forms part of the
casino, after which he took Ms Titus home to get clothes for the
following day. On their return
to the hotel he left Ms Titus in the
room, went to gamble and returned alone around midnight. He did not
leave the room until the
following morning when they left for Cape
Town. He met with the Judge President on 18 September 2012, after
which they spent the
day in Cape Town and returned to the appellant’s
house in Ceres later that evening.
[134]
Ms Titus, who commenced a romantic relationship with the appellant in
July 2012, testified that she met him after
she had finished work at
21h00 on 17 September 2012. They fetched her clothes in Worcester but
she did not know what time they
got back to the hotel after doing so.
The appellant then left her in the hotel room, said he was going to
gamble and returned shortly
after midnight. She could not say where
he was during that time. They slept at the hotel that night. She fell
asleep at 03h00 the
next morning and got up at 06h00. They spent the
day in Cape Town.
[135]
It is common ground that the police went to the appellant’s
home on the night of 18 September 2012 and took
him to Ceres police
station. Ms Titus accompanied him. According to Captain Boer, he was
arrested at home. The appellant claimed
that he was arrested at the
police station. Nothing however turns on this. At the station the
appellant said that he had slept
at the hotel and produced a receipt
for his accommodation. He called his attorney, Mr John Sauls, who
arrived later and informed
the police that the arrest was unlawful
given his client’s alibi.
[136]
On 19 September 2012 and in the presence of Mr Sauls, the appellant
was informed of his constitutional rights.
He was detained in the
police cells and Ms Titus returned to his home. The appellant
appeared in court on Thursday 20 September
2012. The case was
postponed to 27 September 2012 for further investigation, without
objection by Mr Sauls.
[22]
The
appellant remained in custody.
[137]
Captain Boer testified that in the afternoon of 18 September 2012, he
was informed of the incident at the farmhouse
by Captain Kriel, a
female officer who had taken Ms C[…]’s statement. They
met at the scene of the crime with a police
photographer and
fingerprint expert. He interviewed Ms C[…] who told him what
had happened, basically in accordance with
the A1 statement. Captain
Boer said that she could not state the time of the housebreaking,
save to say that it was late when it
happened.
[138]
Captain Boer was clear that what he had witnessed was a very serious
crime scene (‘baie ernstige misdaadtoneel’).
The security
door on the outside of the back door had been ripped from its hinges.
A middle window of the back door had been broken
using a brick
wrapped in a small blanket, found on the scene. There was broken
glass well to the inside of the back door, which
showed that the
window had been smashed from the outside. The inside of the house was
in disarray. A kitchen cupboard door was
lying on the floor, a
picture was hanging skew, a shoe was lying in the passage, a pair of
jeans containing a belt was behind a
couch and brick force wire was
tied around two legs of the table. Captain Boer’s observations
of the scene were not disputed,
save that it was suggested to him
that the dogs and the child must have been alerted by the commotion.
[139]
Captain Boer said that he arrested the appellant at home on the night
of 18 September 2012. This was after
he had observed the crime
scene, and interviewed Ms C[…] who identified the appellant as
her attacker and gave him a photograph
of him. When he arrested the
appellant, Captain Boer had already obtained the A1 statement and the
medical report by Dr Laubscher.
[140]
Captain Boer promptly investigated the case, including the
appellant’s alibi. On 19 September 2012 he obtained
Ms Faul’s
statement as well as a statement from the appellant’s son, then
six years old, in the presence of a social
worker. On the same day
later in the afternoon Captain Boer and Constable Masiza viewed video
footage at the casino, relating to
the night of 17 September 2012 and
the morning of 18 September 2012, between the hours of 22h00 and
7h30. Captain Boer testified
that the person in the footage looked to
him like the appellant. He also thought that it was Ms Titus in the
footage of the morning
of 18 September 2012.
[141]
Mr Goshupelwang, the security manager of the casino testified on
behalf of the appellant. He said that the footage
of 17 September
2012 showed a person at 22h00 in a passage at the main entrance of
the casino; at 22h23 at the reception desk at
the hotel; at 23h17 in
the same passage entering the casino; at 23h18 walking across the
parking area between the hotel and the
casino, towards the casino;
and at 23h20 again at the reception desk of the hotel. In the footage
of 18 September 2012 at 07h21,
Mr Goshupelwang identified the
same person and a woman in a passage of the hotel leading to and from
the rooms, on the first
floor.
[142]
The evidence disclosed that the hotel comprises only two floors: a
ground and first floor. There were no burglar
bars at a certain
section on the first floor and somebody occupying the appellant’s
room could jump through it on to the
ground floor. The CCTV camera
which would have recorded a person leaving through the window and
getting down to the ground level,
was not working at the time. The
camera on the driveway entrance to the casino was of such quality
that it would not pick up the
face or facial features of a person
entering or leaving the casino. Mr Goshupelwang conceded that the
police had looked only at
footage where it was possible to see the
appellant, and that the footage did not show that the appellant had
been on the premises
of the hotel or the casino throughout the
relevant surveillance times, ie between 22h00 on 17 September and
07h30 on 18 September
2012.
[143]
On 26 September 2012 Ms C[…] and Mr Prins (whose statement was
obtained on 20 September 2012) separately
viewed the video footage.
Captain Boer told them that he thought that the appellant appeared in
the footage. They made affidavits
in which they stated that the
person in the footage was not the appellant, inter alia, because the
person walked differently, had
a different hairstyle, his build and
facial features were different and he wore glasses permanently.
[144]
On 27 September 2012 the appellant brought an application to be
released on bail. He was represented by counsel.
He was charged with
offences contemplated in Schedule 6 to the Criminal Procedure Act 51
of 1977 (the CPA). He thus had to satisfy
the court that there were
exceptional circumstances which, in the interests of justice,
permitted his release.
[23]
Captain Boer handed the affidavits of Ms C[…] and Mr Prins
concerning the video footage of the casino to the prosecutor.
He
testified in the bail application that he and Constable Mazisa both
thought that the person in the footage looked like the appellant.
The
bail hearing continued on 28 September and on 5 October 2012 the
appellant was released on bail subject to certain conditions.
He
appeared on four more occasions before the charges against him were
withdrawn on 5 June 2013.
The high court’s
findings
[145]
The trial ran for 15 days in the high court. Its findings may be
summarised as follows. The appellant testified
with great emotion and
had a tendency to exaggerate and dramatise, which impacted
(adversely) on his credibility. He denied that
Ms C[…] had to
bear the brunt of the farming operation despite independent evidence
to the contrary. He went to great lengths
to tarnish her character
and those of her family and neighbours. Captain Luff, whose evidence
the court accepted, did not inform
the appellant that the
housebreaking at the farm had been staged.
[146]
The observations by Ms Van der Spuy and Dr Panieri-Peter concerning
Ms C[…]’s anxiety and inability
to articulate
traumatic events involving the appellant were made prior to this
case. These observations were reliable and were
underscored by the
evidence of Dr Laubscher and Ms Faul.
[147]
The appellant relied on the magistrate’s finding in his
application to set aside the protection order, that
he did not
physically assault Ms C[…]. There was no reason why the
magistrate’s finding that Ms C[…] had made
out a strong
case of family violence as defined in the
Domestic Violence Act 116
of 1998
,
[24]
had to be
rejected. The magistrate found that the appellant had mentally,
psychologically, emotionally and verbally abused Ms C[…]
that
led to unwanted stress and harm to her; and that he expressed his
love for her by sending her sms’s. This abusive behaviour
had a
debilitating effect on Ms C[…].
[148]
It is against the background of the facts stated above that Ms C[…]’s
conduct in the witness box
had to be viewed. In 2011 she was already
so stressed and scared that she was losing sleep and hair. Prior to
the attack on her
in 2012, Ms Van der Spuy diagnosed her as suffering
from PTSD. Dr Laubscher testified that hours after the attack Ms C[…]

was anxious and did not speak much. The trial Judge noted that
Ms C[…] appeared as if mentally challenged, like a
frightened 16-year-old; that she was too anxious to testify; and that
she was in no state to drive home. Her conduct in the witness
box was
not a ‘charade’, but a reaction to the traumatic
experiences between her and the appellant.
[149]   As
stated earlier, the high court considered that it was in the
interests of justice that the A1 statement be
admitted as evidence in
terms of s 3(1)
(c)
of the Evidence Amendment Act. The court’s
reasons were the particular circumstances of the case, more
specifically, much
of the content of the A1 statement had been
corroborated by the police, the appellant had dealt with the
statement, and the assault
on Ms C[…] was not fabricated.
[150]
The court accepted that on a balance of probabilities, the appellant
had proved that he was not the attacker.
Both Ms Faul and Dr
Laubscher confirmed that Ms C[…] did not want to lodge a
criminal complaint. She ensured that her family
was warned of the
appellant’s threat to harm them and they slept elsewhere. She
was surprised by her attacker who wore a
cap, it was night, the fire
was out and the lighting apparently was poor. Ms Pienaar and Ms Faul
believed that the appellant was
the attacker because all her
calamities were associated with him. Mr Prins was not convinced that
it was the appellant in the video
footage of the casino. In the
circumstances, the court concluded that Ms C[…]’s belief
that the appellant was her
attacker was reasonable. As already
stated, he failed to prove absence of reasonable and probable cause
and
animus iniuriandi
,
and his claims were accordingly dismissed.
[151]
The high court concluded that the appellant’s arrest and
detention was lawful. The crime scene depicted
a housebreaking and a
struggle. Captain Boer was in possession of the A1 statement which
identified the appellant as the perpetrator
of the crimes and there
was just cause for his arrest. Captain Boer acted reasonably by
investigating the appellant’s alibi
and after confirming that
he had been at the casino on 17 September 2012, did not consider that
the case was doomed to failure.
Further, the appellant had been
charged with offences envisaged in Schedule 6 of the CPA and Captain
Boer considered that he had
to appear in court to determine whether
or not he should be released. On 20 September 2012 the case had been
postponed for seven
days without objection by the appellant’s
attorney. Thereafter the case was postponed so that the appellant
could bring a
bail application.
[152]
The issues in this appeal, in our view, are whether the high court
was correct in holding that the evidence did
not establish: (a) that
Ms C[…] had acted
animo
iniuriandi
in relation to both the
claims for damages for malicious prosecution and defamation; (b) that
she acted without reasonable and
probable cause when laying the
criminal charges; and (c) that the appellant’s arrest and
detention was wrongful. We turn
now to consider these issues.
Malicious prosecution
[153]
For present purposes, only the requirements of fault (
animus
iniuriandi
)
and wrongfulness (the absence of reasonable and probable cause) are
relevant in relation to the claim based on malicious prosecution.
In
Relyant
Trading v Shongwe
,
[25]
this Court restated these requirements as follows:
‘
Malicious
prosecution
consists in the wrongful
and intentional assault on the dignity of a person comprehending also
his or her good name and privacy.
The requirements are that the
arrest or prosecution be instigated without reasonable and probable
cause and with “malice”
or
animo
iniuriarum
. Although the expression
“malice” is used, it means, in the context of the
actio
iniuriarum
,
animus
iniuriandi.
In
Moaki
v Reckitt & Colman (Africa) Ltd and Another
Wessels JA said:
“
Where
relief is claimed by this actio the plaintiff must allege and prove
that the defendant intended to injure (either
dolus
directus
or
indirectus
).
Save to the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into account
in fixing the
quantum of damages, the motive of the defendant is not of any legal
relevance
.”
. . .
The
requirement for malicious arrest and prosecution that the arrest and
prosecution be instituted “in the absence of reasonable
and
probable cause” was explained in
Beckenstrater
v Rottcher and Theunissen
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.”
It
follows that a defendant will not be liable if he or she held a
genuine belief founded on reasonable grounds in the plaintiff's

guilt.
Where
reasonable and probable cause for an arrest or prosecution exists the
conduct of the defendant instigating it is not wrongful.  The

requirement of reasonable and probable cause is a sensible one: “For
it is of importance to the community that persons who
have reasonable
and probable cause for a prosecution should not be deterred from
setting the criminal law in motion against those
whom they believe to
have committed offences, even if in so doing they are actuated by
indirect and improper motives”.'
[154]
Counsel for the appellant submitted that Ms C[…] had decided
to falsely accuse him of housebreaking and
sexual assault and acted
thereon; and that she could have testified but elected not to do so,
which warranted a negative inference
against her since she was
required to discharge an evidentiary burden relating to her state of
mind at the relevant time. The objective
evidence, so it was
submitted, shows that ‘she could not and did not have an honest
and rational belief’ that her attacker
was the appellant.
[155]
Two preliminary points are required to be made at the outset. The
first is that the issue as to whether Ms C[…]
had wilfully and
falsely set the machinery of the law in motion against the appellant,
had to be decided on the basis of circumstantial
evidence. In
Ocean
Accident and Guarantee Corporation Ltd v Koch
[26]
Holmes JA approved the following dictum in
Govan
v Skidmore
:
[27]
‘
[I]n
finding facts or making inferences in a civil case, it seems to me
that one may, as Wigmore conveys in his work on
Evidence
,
3
rd
ed., para. 32, by balancing probabilities, select a conclusion which
seems to be the more natural, or plausible, conclusion from
amongst
several conceivable ones, even though that conclusion be not the only
reasonable one.’
Holmes
JA went on to say that ‘plausible’ was used ‘in the
connotation which is conveyed by words such as acceptable,
credible,
suitable’.
[156]
Recently, in
Kruger
v National Director of Public Prosecutions
,
[28]
a majority of the Constitutional Court affirmed this approach,
specifically in relation to malicious prosecution. Froneman J said:
‘
Lack
of reasonable and probable cause and with intent to injure will
almost invariably have to be proved by inference from other,

secondary, facts. This will be done by assessing whether the facts
presented in evidence lead to the probable conclusion that the

prosecution took place without reasonable and probable cause and with
intent to injure. The factual evidence that, taken together,
proves
the absence of reasonable and probable cause plus
animus
injuriandi
will vary from case to case.
It is impossible to state a general legal rule by which factual
evidence is necessary as proof of
these ultimate legal requirements.’
[157]
The second point – which the appellant ignores – is the
presumption that a trial court’s factual
findings are correct
in the absence of demonstrable error. To overcome this presumption,
an appellant must convince the appellate
court on adequate grounds
that the trial court’s factual findings were plainly wrong. If
the appellate court is merely left
in doubt as to the correctness of
a factual finding, then it will uphold it. It is only in exceptional
circumstances that an appellate
court will interfere with the trial
court’s evaluation of oral evidence, in the light of the
advantages enjoyed by the trial
court of seeing, hearing and
appraising the witnesses.
[29]
[158]
In this regard, the dictum by Lewison LJ in
Fage
UK Ltd v Chobani UK
,
[30]
is instructive, and in our opinion applies with particular force to
factual findings made by a judge after a long trial, as in
the
present case:
‘
Appellate
courts have been repeatedly warned, by recent cases at the highest
level, not to interfere with findings of fact by trial
judges, unless
compelled to do so. This applies not only to findings of primary
fact, but also to the evaluation of those facts
and to inferences to
be drawn from them . . . The reasons for this approach are many. They
include
i  The expertise of
the trial judge is in determining what facts are relevant to the
legal issues to be decided, and what those
facts are if they are
disputed.
ii  The trial is not
a dress rehearsal. It is the first and last night of the show.
iii Duplication of the
trial judge’s role on appeal is a disproportionate use of the
limited resources of an appellate court,
and will seldom lead to a
different outcome in an individual case.
iv In making his
decisions the trial judge will have regard to the whole of the sea of
evidence presented to him, whereas an appellate
court will only be
island hopping.
v The atmosphere of the
courtroom cannot, in any event, be recreated by reference to
documents (including transcripts of evidence).
vi
Thus even if it were possible to duplicate the role of the trial
judge, it cannot in practice be done.’
[159]
The high court’s findings that the appellant had mentally,
psychologically, emotionally and verbally abused
Ms C[…],
which had a debilitating effect on her and caused her to suffer
unwanted stress and harm; and that part of this
abuse was his sending
of unwelcome sms’s expressing his love for her, are
unassailable in our view. On this score the appellant
stands
convicted out of his own mouth. He conceded that the protection order
had to remain in place, because of his unwanted sms’s
and love
letters and his stalking of Ms C[…]. The magistrate refused to
set aside this order on account of his verbal and
emotional abuse,
stalking and the fact that she lived in constant fear. He also
conceded that his stalking had frightened Ms C[…].
[160]
The finding that Ms Van der Spuy’s observations were reliable
concerning Ms C[…]’s anxiety
and her inability to
articulate traumatic events involving the appellant, is likewise
unassailable. In our opinion, nothing turns
on the fact that Ms C[…]
did not give this evidence, or that Ms Van der Spuy did not obtain
‘collateral evidence’
as was put to her in
cross-examination, for the simple reason that there was ample
independent evidence – in most instances
unchallenged –
of the appellant’s cruelty, and the abuse, trauma and fear to
which he subjected Ms C[…]. A few
examples will suffice. The
appellant left Ms C[…] alone on a cold bathroom floor all
night after she had suffered a miscarriage.
He refused to tolerate
his own son’s colic as a result of which Ms C[…] and the
child often had to stay over at her
family’s home. He expected
to her to work, despite being ill, from early in the morning until
sometimes 22h00 at night. The
appellant conceded that when he married
Ms C[…] she was friendly and an extrovert, and that she had
changed. This change
was drastic and swift after her marriage, even
before the birth of their son, from being happy to becoming very
anxious and scared.
[161]
Ms Faul said that Ms C[…] could not say the appellant’s
name, something that Ms Van der Spuy had
also observed. Mr Prins said
that Ms C[…] was ‘very, very afraid’ of the
appellant. The appellant refused to
take her to hospital one night
when she clearly needed it and insisted that she first transport
their workers to an informal settlement.
Mr Prins ended up taking her
to hospital, where she was admitted that night. Then there is the
unchallenged evidence of Mr Braun
concerning the appellant’s
threat after Ms C[…] had left him, that there were guns in the
house on the farm and that
he did not know what he was going to do.
He went to the home of Mr Prins where, in breach of the protection
order, he banged against
the windows and doors for at least 20
minutes, demanding to see Ms C[…]. She was forced to take
refuge in a walk-in safe.
[162]
Ms Van der Spuy’s conclusion that Ms C[…] presented as a
person who had been exposed to severe trauma,
and that there was no
trauma that she experienced unconnected to her relationship with the
appellant, was entirely justified. Her
diagnosis of PTSD cannot be
faulted, particularly because it was based solely on evidence gained
prior to the attack on Ms C[…],
who had not even told her that
the appellant was the attacker. The high court’s finding on
this aspect is obviously correct.
Further, Ms Van der Spuy testified
that having regard to the consistency of Ms C[…]’s
presentation (of the symptoms
of PTSD) across time and over context,
her psychological and physical symptoms were not feigned. This
evidence was neither challenged
nor contradicted.
[163]
However, counsel for the appellant submitted that it was clear that
the purpose of Ms Van der Spuy as a witness
‘was not to give
[an] expert opinion on any issue relevant to the case, but to
manoeuvre hearsay evidence by First Defendant
into the trial record,
since she was not going to testify in the trial because of her
“current emotional condition”’.
This submission is
both astounding and wrong. First, the so-called purpose of her
evidence, or that it was irrelevant, was never
put to Ms Van der Spuy
in cross-examination. The Constitutional Court has said that the
precise nature of an imputation against
a witness must be made ‘so
that it may be met and destroyed’, particularly where the
imputation depends on inferences
drawn from other evidence at the
trial.
[31]
Second, the fact
that Ms C[…] at the relevant times suffered from PTSD, solely
as a result of her relationship with the
appellant, was highly
relevant to the issues in dispute. And third, the submission is at
odds with the undisputed evidence of Ms
Van der Spuy that Ms C[…]’s
symptoms were not feigned, and it suggests, regrettably, that the
attempt to get her to
testify (she was in the witness box) was a
stratagem designed to deceive the trial court.
[164]
It is beyond question that Ms C[…] suffered severe trauma at
the time of the attack. The gross violation
of her dignity, privacy,
the sanctity of her home and her physical integrity must have been a
terrifying experience, given her
fragile emotional state. She
sustained serious injuries: multiple bruises and abrasions of her
face and her whole body; swelling
and bruising of her wrists, and
partial nerve damage of both hands; and extensive bruising of her
private parts. It was a brutal
and savage attack and she was left
naked, alone and tied to a table with brick force wire for a
considerable period of time, evidenced
by the nerve damage to her
hands. This is consistent with the evidence. Ms C[…] had to
wait for her six-year-old son to
wake up so that he could untie her.
Ms Faul received the telephone call at approximately 06h30 on
18 September 2012, and said
that she could hear Ms C[…]
telling her son not to hurt her (as he was untying her). And the
charge sheet stated that the
crimes were committed between 17 and 18
September 2012, in the bail proceedings the State alleged between
20h00 and 06h15.
[165]   Ms Van
der Spuy’s evidence as to the effect of the attack on Ms C[…],
given that she was suffering
from PTSD, was similarly not challenged
nor contradicted. She said:
‘
Well
. . . it would be compounding the trauma and the damage that was
already there. The psychological damage would be – trauma
on
top of trauma, and it would be worse . . . I would predict a worse
picture.’
[166]
In these circumstances, and quite apart from her reluctance to lay
criminal charges, the appellant contends that
Ms C[…] had
decided to falsely and deliberately accuse him of housebreaking and
sexual assault, and set the law in motion
against him. The contention
strains credulity. Worse, he testified that according to Captain
Luff, Ms C[…] had not been
assaulted or tied up with wire; and
that the broken glass through which entry to the farmhouse had been
gained was outside, not
inside the house, suggesting that there had
been no housebreaking or assault. All of this, as the appellant put
it, was ‘nonsense’.
And this, when he and his legal
representatives would have seen the affidavits of Ms Faul, Mr Prins,
Captain Boer and the medical
report by Dr Laubscher (filed in the
crime docket) from which it was clear that Ms C[…] had been
the victim of serious crimes.
The alternative of course, is that the
housebreaking had been ‘staged’ and the serious injuries
sustained by Ms C[…],
self-inflicted! This proposition needs
merely to be stated to be rejected.
[167]
The inference is inescapable that the appellant fabricated the
Captain Luff story to bolster his theory –
it is nothing more
and unsustainable on the evidence – that Ms C[…]
had falsely and intentionally instituted
his prosecution on charges
of housebreaking and rape. But this was not the only fabrication by
the appellant. His version of the
safe incident at the home of Mr
Prins may safely be rejected as false. It is no coincidence that when
the police arrested him at
the farm that night on charges of domestic
violence, they asked him whether there were guns in the safe and
there and then telephoned
Ms C[…]’s father, who
confirmed that he owned those guns. The appellant’s evidence
that Ms C[…] was ‘abusive’,
‘violent’
and had bullied him, is risible. Ms C[…] was afraid of the
appellant and always tried to please him.
She bore the brunt of the
farming operations. Mr Braun said that whenever he went to the farm,
Ms C[…] was the one working,
preparing dinner, cleaning and
doing everything. Little wonder then, that the high court found that
the appellant was prone to
exaggerate and dramatise, which negatively
impacted his credibility. This finding also is incontestable.
[168]
Ms Faul said that Ms C[…] was shocked, scared and shivering.
Given her PTSD, this was ‘trauma on
top of trauma’. When
Ms Faul asked her what had happened, she did not say anything. From
the outset, Ms C[…] did not
wish to lay criminal charges. It
was Ms Faul who asked her if it was ‘him’. She answered
affirmatively but told Ms
Faul not to ‘tell anybody anything,
and it will go away’. She did not want to report the
housebreaking and assault
to the police. She kept on saying that if
they kept quiet, ‘everything would go away’. She did not
want to go to a
doctor. It was only at Ms Faul’s insistence
that she agreed to be examined by Dr Laubscher. Mr Prins said that Ms
C[…]
was very afraid, shaking and in shock. When she was
spoken to, she did not realise what was being said.
[169]
Likewise, Dr Laubscher testified that Ms C[…] was very
anxious, quiet and totally withdrawn. It was difficult
to establish
from her what had happened. She did not want to speak. She did not
want to make a case. It was only when Dr Laubscher
informed her that
he was duty-bound to lay charges if she did not, that she made the A1
statement to the police. All of this evidence
was unchallenged. And
contrary to the appellant’s assertion, there was objective
independent evidence of Ms C[…]’s
state of mind at the
material times.
[170]
On the appellant’s theory, the most plausible, credible or
readily apparent inference to be drawn from these
facts, is that Ms
C[…] well knew that the appellant was not her attacker, but
decided to falsely instigate a prosecution
against him for the
crimes. And it follows logically from this theory, that in her
traumatised state after the brutal attack on
her, Ms C[…] had
the wherewithal to engineer a massive deception on the very people on
whom she called for help. Her statements
to Ms Faul that the attack
should be kept quiet and it would go away, that she did not want to
report the attack to the police
and her reluctance to go to a doctor,
were all part of the deception. So too, the warning to her family of
the appellant’s
threat to harm them, and the so-called charade
concerning her inability to give evidence.
[171]
What is more, on this theory Ms C[…] had everybody fooled! Ms
Faul said that she asked whether it was ‘him’
because Ms
C[…] had often spoken about the appellant and the things he
had done. Ms Faul believed her and concluded that
the appellant was
the attacker. Mr Prins observed that Ms C[…] was in shock and
did not realise what was being asked or
said. Dr Laubscher was
adamant that Ms C[…] did not want to report the matter to the
police. Ms Pienaar and her mother acted
on the appellant’s
threat to harm them and went to sleep elsewhere. Ms C[…]
certainly could never have predicted the
reaction of these witnesses.
On the proven facts the appellant’s theory is simply
unsustainable: it is fanciful and absurd.
[172]
The submission that Ms C[…]’s inability to give evidence
was a ‘charade’ is yet another
example of an attack on
the trial court’s findings in the absence of demonstrable
error. The finding that Ms C[…]’s
inability to testify
had to be viewed in the light of the appellant’s mental,
psychological, emotional and verbal abuse of
her, and her anxiety and
inability to articulate traumatic events involving him, cannot be
faulted. The trial Judge concluded that
Ms C[…] was unable to
testify after she had observed her in the witness box, and after
assessing the evidence of Dr Panieri-Peter,
including the factual
evidence concerning Ms C[…]’s inability to testify.
[173]
The facts speak for themselves. Ms C[…] could not stay in
counsel’s office. She left a number of
times. She vomited. On
her way to court she stopped a number of times and said she was going
to be sick. She would not go through
the security entrance and felt
boxed in. She wanted to flee from the courtroom, was shaking and got
sick on the way out. The Judge
said to Dr Panieri-Peter: ‘I
don’t quite understand how you would have been able to explain
to me what I saw today
. . . She looked like a frightened
16-year-old’. The Judge observed that Ms C[…] appeared
as somebody who was mentally
challenged. She had to be given
medication and an attorney had to drive her home. Dr Panieri-Peter
said that it was an extremely
traumatic experience for her to be in
court and that what had been witnessed were the symptoms of PTSD.
[174]
These events, which are symptomatic of PTSD, are entirely consistent
with Ms Van der Spuy’s evidence.
When asked by the
appellant’s counsel whether there was any change in Ms C[…]’s
condition after the rape incident,
she replied that the most
significant change was that she was more anxious and her avoidance to
deal with trauma or any topic related
to the appellant had escalated.
Given these facts, yet again unchallenged, the appellant’s
contention that Ms C[…]’s
inability to testify was a
‘charade’, is startling. There is no basis to interfere
with the high court’s finding
on this aspect. It is plainly
correct.
[175]
What all of this shows, is that the facts on which the appellant
relied at the trial, and on which he relies in
support of his basic
ground of appeal, namely that Ms C[…] falsely and
intentionally identified him as the attacker, are
matters which the
trial Judge took into account in reaching her conclusion. The
appellant has failed to demonstrate that the findings
of fact by the
trial court were plainly wrong. In our view the court’s
findings and reasoning regarding the appellant’s
failure to
prove absence of
animus iniuriandi
are sound. His claim was rightly dismissed on this ground.
[176]
The appellant’s failure to prove that Ms C[…] did not
have reasonable and probable cause to institute
the prosecution may
be dealt with briefly. The test for reasonable and probable cause
contains both a subjective and objective
element: a defendant must
subjectively believe that the plaintiff probably committed the crime;
and that belief must be objectively
reasonable.
[32]
Whether there were reasonable grounds for the prosecution depends on
the facts of the particular case.
[177]
There is no evidence showing that when she made the A1 statement,
Ms C[…] knew or should have known
that the appellant
could not have been her attacker. Thus, there is no factual basis for
such a finding. Further, she could not,
and did not, know of the
appellant’s alibi defence. So, it cannot be said that when she
instigated the prosecution, she did
not believe in the appellant’s
guilt and thus acted without reasonable and probable cause.
[178]
There can be no question, in our opinion, that at the relevant time
Ms C[…] held an honest belief that
the appellant was her
attacker. That much is clear from all the persons she spoke to
immediately after the attack. Dr Laubscher
said that she did not want
to lay charges because the appellant was meticulous, would leave no
traces of evidence and for these
reasons, Ms C[…] thought it
unnecessary to go through all the examinations concerning a sexual
assault This explains why
she had a bath contrary to Ms Faul’s
advice. As we have found, none of this was a deception on the part of
Ms C[…].
[179]
Consistent with her belief that the appellant was the attacker, Ms
C[…] made an affidavit that the person
who appeared in the
video footage was not the appellant. She filed a counterclaim for
rape and assault. She hired a private investigator,
a former
policeman, to ensure that the police investigation was conducted
properly. She instructed attorneys to put pressure on
the NPA to
properly investigate the criminal case as she was concerned that
nothing was being done to rebut the appellant’s
alibi. When no
progress was being made, she asked that a female prosecutor be
appointed to deal with the case.
[180]
In this regard, it must be emphasised that these steps taken by Ms
C[…] are consistent with reasonable
and probable cause for a
prosecution. Where it is shown that a defendant has knowledge of the
plaintiff’s allegation of a
defence, the defendant may still
reasonably decide that the plaintiff is probably guilty of the crime
because she is convinced
that the defence is not good, or even if she
is uncertain of the defence.
[33]
[181]
Ms C[…]’s belief that the appellant was the attacker was
reasonable in the circumstances. According
to the A1 statement, the
attacker did not use a vehicle. He must have walked to the house and
could not drive up to it. This fact
was known to somebody familiar
with the house. It is buttressed by the evidence of Captain Luff. The
manner in which the house
was broken into indicated that the attacker
had knowledge of the house and knew exactly where the barrel lock was
located on the
back door, in order to gain access.
[182]
Aside from this, the particular circumstances of this case cannot be
over-emphasised. As the high court found,
it was a horrendous attack.
On the evidence, Ms C[…] was suffering from PTSD and unable to
give a coherent or chronological
narrative of events, specifically in
relation to traumatic incidents. Thus, her utterance, ‘Parts of
it I can’t remember’
in the A1 statement, should come as
no surprise. On the appellant’s theory, this too, was a
deception. The attack happened
at night (or in the early hours of the
morning), the fire was out and Ms C[…] was surprised by her
attacker who wore a cap.
Mr Prins was convinced that it was not Mr
C[…] depicted on the video footage. Like Ms C[…], both
Ms P[…] and
Ms Faul associated the appellant with all or most
of Ms C[…]’s calamities, and she was not the only one
who believed
that the appellant was the attacker. Once again, it
cannot be said that these findings by the high court are demonstrably
wrong.
[183]
In our view, a proper conspectus of the evidence does not lead to the
plausible or probable conclusion that the
prosecution was instigated
without reasonable and probable cause. Having regard to the adverse
credibility findings in respect
of the appellant, more specifically,
his denial of his abuse of Ms C[…], and the Captain Luff story
that the housebreaking
had been staged and there was no sexual
assault, this is not one of those rare cases where ‘a court’s
credibility findings
compel it in one direction and its evaluation of
the general probabilities in another’.
[34]
There is no reason to disturb the high court’s finding that the
appellant failed to prove wrongfulness.
[184]
The appellant failed to prove wrongfulness or
animus
iniuriandi
concerning his claim based
on malicious prosecution. It follows that the high correct was
correct in dismissing his claim for damages
for defamation.
Wrongful arrest and
detention
[185]
The pleaded case against the Minister was that the police officers
had no reasonable or probable cause to arrest
and detain the
appellant and that by doing so, they caused his further prosecution
and detention. Before us it was argued that
the arrest itself, the
appellant’s detention until his first court appearance, and
thereafter his detention until his release
on bail, were all
unlawful.
[186]   The
appellant was arrested without a warrant. The jurisdictional
requirements for an arrest without a warrant
under s 40(1)
(b)
of the CPA are well settled:
‘
1)
The arrestor must be a peace officer.
2)
He must entertain a suspicion.
3)
It must be a suspicion that the arrestee committed an offence
referred to in
Schedule1 to the Act (other than one particular
offence).
4)
That suspicion must rest on reasonable grounds.’
[35]
Once
these requirements are established the arresting officer has a
discretion to arrest, which must be exercised rationally.
[36]
As Harms DP said in
Sekhoto
:
[37]
‘
A
number of choices may be open to him, all of which may fall within
the range of rationality. The standard is not perfection, or
even the
optimum, judged from the vantage of hindsight - so long as the
discretion is exercised within this range, the standard
is not
breached.’
[187]
In this regard, the appellant has again failed to show that the high
court’s factual findings were plainly
wrong, or as Lord Reed
put it in
Henderson
v Foxworth Investments Ltd
,
[38]
‘the decision under appeal is one that no reasonable judge
could have reached’. When the appellant was arrested, Captain

Boer had reasonable grounds to suspect that he had committed offences
referred to in Schedule 6 to the CPA. He had witnessed a
crime scene
which depicted a housebreaking, a struggle and the use of brick force
wire. Ms C[…] identified the appellant
as the perpetrator both
in the interview with Captain Boer and the A1 statement. Captain Boer
was in possession of Dr Laubscher’s
medical report confirming
that Ms C[…] had been severely assaulted. The mere nature of
the offences of which the appellant
was suspected – which
carried potential sentences of life imprisonment – justified
his arrest to enable a court to
exercise its discretion as to whether
he should be detained or released pending his trial and if so, on
what conditions.
[39]
[188]
In these circumstances, it cannot seriously be argued, as counsel for
the appellant did, that the police should
‘investigate
exculpatory explanations offered by the suspect before they can form
a reasonable suspicion for the purpose
of executing a lawful arrest’.
Unsurprisingly, no authority was cited for this submission. Captain
Boer was not called upon
to decide whether the appellant ought to be
detained pending a trial.
[40]
Neither was he required to conduct a hearing before arresting the
appellant.
[41]
[189]
There is also no merit in the appellant’s argument that Captain
Boer should not have arrested him, given
his alibi and the different
times at which the attack was alleged to have occurred. In the
medical report it was stated as 22H00
on 17 September 2012,
whereas in the A1 statement it was recorded as having taken place
between 18H00 on 17 September and
06H00 on 18 September 2012. For
this argument the appellant relied on this Court’s judgment in
De
Klerk v Minister of Police
.
[42]
The reliance on
De
Klerk
is misplaced. The latter case is distinguishable on the facts: there
the arresting officer failed to establish the seriousness
of the
injury and wrongly assumed that a Schedule 1 offence had been
committed. The arrestee who attacks the exercise of the discretion

where the jurisdictional facts are present, bears the onus to prove
that the discretion was not properly exercised.
[43]
The appellant failed to discharge this onus.
[190]
As to the appellant’s detention before his first appearance in
court, it was submitted that he should have
been released after
Captain Boer and Constable Mazisa had viewed the video footage at the
casino on 19 September 2012. According
to the appellant, these
officers came to see him at the police cells after they had viewed
the footage and told him that ‘he
had nothing to worry about’.
They allegedly saw the appellant shaking hands with the manager and
playing blackjack, on the
footage. The appellant then asked to be
released, but Captain Boer allegedly refused because they were
‘receiving pressure
from the high people of Cape Town’.
This was false. Captain Boer denied seeing the appellant in the cell
on 20 September
2012 and his allegations are not borne out by the
video footage tendered in evidence.
[191]
Aside from this, it cannot be said that Captain Boer’s actions
after viewing the video footage were unreasonable.
He testified that
he had never seen the appellant prior to arresting him, and was in
possession of evidence that pointed to the
appellant as the
perpetrator of serious offences. In the circumstances, it was not
unreasonable for Captain Boer to have required
further corroboration.
He asked Ms C[…] and Mr Prins to view the footage. They
deposed to affidavits on 27 September
2012 in which they stated that
the person in the footage was not the appellant. In addition, the
police were also awaiting telephone
records and the results of
forensic tests. Given these facts, Captain Boer could not be expected
to decide where the truth lay.
And if he was not required to conduct
a hearing before arresting the appellant, then in our view,
a
fortiori
, was there no duty on him in
the particular circumstances to decide whether the appellant’s
alibi was reasonably possibly
true. That is the function of a trial
court.
[192]
For these reasons, the appellant’s reliance on this Court’s
decision in
Minister
of Police v Du Plessis
,
[44]
in support of the argument that after the video footage had been
seen, his continued detention was unlawful, is misplaced. The
facts
in that case are wholly distinguishable.
[193]
The high court’s finding that the appellant’s detention
after his arrest was lawful, similarly cannot
be faulted. It is clear
from the evidence that the purpose of his arrest was to bring him
before a court, for it to decide whether
he should be detained
pending his trial.
[45]
Section
59 of the CPA precluded his release on bail before his first court
appearance.
[46]
He was
lawfully remanded in custody at his first appearance where he was
charged with offences contemplated in Schedule 6 to the
CPA. He was
then required to establish on a balance of probabilities that there
were exceptional circumstances which, in the interests
of justice,
permitted his release on bail.
[194]   At his
first appearance the appellant was represented by his attorney, Mr
Sauls, who was at the police station
shortly after the arrest, and
was aware of the appellant’s alibi. Mr Sauls did not object to
the postponement of the case
for seven days, for the purpose of
further investigation. The case was again postponed to 27 September
2012 at the request of the
defence. The appellant was then
represented by counsel who informed the magistrate that the purpose
of the postponement was for
the State to provide the appellant with
information to enable him to bring a bail application. That
application was brought on
27 September 2012 and continued until the
appellant was released on bail on 5 October 2012.
[195]
On the facts, the question of liability on the part of the police for
any court- sanctioned detention does not
arise.
[47]
In any event, no such case was pleaded or established in evidence. It
was not the appellant’s case that Captain Boer committed
a
separate delict, or that he gave false evidence that led to a refusal
of bail, or resulted in the appellant’s court-sanctioned

detention. On the contrary, in the bail application Captain Boer
testified that he thought that the person in the relevant video

footage was the appellant. And in his evidence Mr Sauls said that
Captain Boer had testified openly and honestly in the bail
proceedings,
in which the prosecution had led his evidence
objectively. It follows that the claim for unlawful detention prior
to the appellant’s
first appearance in court and until his
release on bail, must fail.
[196]
What remains is the claim against the NPA. The appellant alleged that
the prosecution ‘acted wrongfully’
in prosecuting him on
false charges, by opposing his bail application and persisting with
the prosecution without an honest belief
founded on reasonable
grounds. This claim is misconceived. It is clear from what is stated
above that for a defendant to incur
delictual liability for
instituting a prosecution, the plaintiff must prove that the
defendant acted intentionally (
animo
iniuriandi
). In his claim against the
NPA, the appellant did not plead that the prosecution acted
intentionally; neither was this established
in evidence. There are
persuasive public policy considerations for the requirement of
animus
iniuriandi
. To impose delictual
liability on the prosecution every time a case is withdrawn for lack
of evidence would result in considerable
harm to the administration
of justice.
Conclusion
[197]   For the
above reasons we would make the following order:
The
appeal is dismissed with costs, including the costs of two counsel.
_________________
A SCHIPPERS
JUDGE
OF APPEAL
_________________
C H NICHOLLS
JUDGE
OF APPEAL
APPEARANCES:
For the
Appellant:               T
D Potgieter SC (with
him J Janssen)
Instructed
by:                      Michalowsky

Geldenhuys & Humphries, Cape Town
Lovius
Block Inc, Bloemfontein
For the
First
Respondent:   J W Olivier SC (with him A Heese)
Instructed by:
Bill

Tolken Hendrikse Inc, Cape Town
Phatshoane
Henney Attorneys, Bloemfontein
For the Second and Third
Respondents
:
M Salie SC (with him S Magardie)
Instructed
by:

The State Attorney, Cape Town
The
State Attorney, Bloemfontein
[1]
Minister
of Safety and Security v Lincoln
(Case
no 682/19)
[2020] ZASCA 59
(5 June 2020) para 20.
[2]
Prinsloo
and Another v Newman
1975
(1) SA 481
(A) 495G-H.
[3]
Neethling,
Potgieter Visser
Law
of Delict
5
ed at 318.
[4]
Compare
Moaki
v Reckitt & Colman (Africa) Ltd and Another
1968
(3) SA 98
(A) at 105B-C.
[5]
14(2)
Lawsa
3 ed para 122.
[6]
Neethling,
Potgieter Visser
Law
of Delict
(op.cit
fn.3) at 316;
Borgin
v De Velliers and Another
1980
(3) SA 556
(A) at 571F-G;
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre intervening as Amicus Curiae)
[2011]
ZACC 4
;
2011 (3) SA 374
(CC) para 85.
[7]
Compare
Moaki
(above
fn 4) at 105G-106A.
[8]
See
generally C W H Schmidt & H Rademeyer
Law
of Evidence
[Issue
17 Lexis Nexus] 18.4.3 and the cases cited therein.
[9]
D
T Zeffert & A P Paizes
The
South
African Law of Evidence
2
ed at 401.
[10]
C
W H Schmidt & H Rademeyer (op cit fn 8) at 18.4.3.2.
[11]
D
T Zeffert and A P Paizes (op cit fn 9) at 407.
[12]
S
V Ndhlovu and Others
2002
(2) SACR 325
(SCA) para 44.
[13]
C
W H Schmidt & H Rademeyer (op cit fn 8) at 18.4.3.4 and
18.4.3.6.
[14]
Ibid
at 18.4.3.5.
[15]
S
v De Oliveira
1993
(2) SACR 59
(A) at 65A-C, with reference to the cautionary words of
Schreiner JA in
R
v Mohr
1944
TPD 105
at 108.
[16]
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA);
[2010] ZASCA 141
;
2011 (5) SA 367
(SCA) para 44.
[17]
LTC
Harms
Amler’s
Precedents of Pleadings
9 ed LexisNexis at 53.
[18]
‘
40.
A peace officer may without warrant arrest any person –
(a) . . .
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1 .
. .’
[19]
Minister
of Police and Another v Du Plessis
[2013]
ZASCA 119
;
2014 (1) SACR 217
(SCA) para 17.
(
Footnotes
omitted.)
[20]
Woji
v Minister of Police
[2014]
ZASCA 108; 2015 (1) SACR 409 (SCA).
[21]
See
LTC Harms
Amler’s
Precedents and Pleadings
(op
cit fn 17 at 257 and the cases cited there).
[22]
Section
50(6)
(d)
of
the
Criminal Procedure Act 51 of 1977
provides:
‘
The
lower court before which a person is brought in terms of this
subsection, may postpone any bail proceedings or bail application
to
any date or court, for a period not exceeding seven days at a time,
on the terms which the court may deem proper and which
are not
inconsistent with any provisions of this Act, if-
(i)
The court is of the opinion that it has
insufficient information or evidence at its disposal to reach a
decision on the bail application;
(ii)
. . .
(iii)
. . .
(iv)
. . .
(v)
It appears to the court that it is
necessary in the interests of justice to do so.’
[23]
Section
60(11)
(a)
of
the
Criminal Procedure Act 51 of 1977
provides:
‘
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to–
(a)
in Schedule 6, the court shall order
that the accused be detained in custody until he or she is dealt
with in accordance with
the law, unless the accused, having been
given a reasonable opportunity to do so, adduces evidence which
satisfies the court
that exceptional circumstances exist which in
the interests of justice permit his or her release.’
[24]
Domestic
violence is defined as follows:
‘
domestic
violence’
means-
(a)
physical
abuse;
(b)
sexual
abuse;
(c)
emotional,
verbal and psychological abuse;
(d)
economic
abuse;
(e)
intimidation;
(f)
harassment;
(g)
stalking;
(h)
damage
to property;
(i)
entry
into the complainant's residence without consent, where the parties
do not share the same residence; or
(j)
any
other controlling or abusive behaviour towards a complainant,
where
such conduct harms, or may cause imminent harm to, the safety,
health or wellbeing of the complainant.’
[25]
Relyant
Trading (Pty) Ltd v Shongwe
2007 (1) All SA 375
(SCA) paras 5 and 14, footnotes omitted.
[26]
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A) at 159D.
[27]
Govan
v Skidmore1952
(1)
SA 732 (N). See also
AA
Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) at 614G.
[28]
Kruger
v National Director of Public Prosecutions
[2019] ZACC 13
;
2019 (6) BCLR 703
(CC) para 79.
[29]
R
v Dhlumayo and Another
1948
(2) SA 677
(A) at 705-706;
Sanlam
Bpk v Biddulph
2004
(5) SA 586
(SCA) para 5;
Roux
v Hattingh
[2012]
ZASCA 132
;
2012 (6) SA 428
(SCA) para 12;
Bee
v Road Accident Fund
2018
(4) SA 366
(SCA) para 46.
[30]
Fage
UK Ltd & Anor v Chobani UK Ltd & Anor
[2014] EWCA Civ 5
para 114; approved recently in
Perry
v Raleys Solicitors
[2019] UKSC 5
para 52.
[31]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) para 63.
[32]
Minister
of Justice and Constitutional Development and Others v Moleko
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA) para 8; J Neethling, J M
Potgieter and P J Visser
Law
of Personality
2 ed (2005) at 176.
[33]
Van
der Merwe v Strydom
1967 (3) SA 460
(A) at 468F-G.
[34]
Stellenbosch
Farmers’ Winery Group and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) para 5.
[35]
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H;
Minister
of Safety and Security v Sekhoto
and Another
[2010]
ZASCA 141
; 2011 (5) SA 367 (SCA).
[36]
Minister
of Safety and Security v Magagula
[2017]
ZASCA 103.
[37]
Sekhoto
fn 14 para 39 and the cases cited therein.
[38]
Henderson
v Foxworth Investments Ltd
and
Another
[2014] UKSC 41
para 62.
[39]
Sekhoto
fn
14 para 44.
[40]
Sekhoto
fn
14 para 44.
[41]
National
Commissioner of Police and Another v Coetzee
[2012] ZASCA 161
;
2013 (1) SACR 358
(SCA) para 14.
[42]
De
Klerk v Minister of Police
[2018] ZASCA 45
;
[2018] 2 ALL SA 597
(SCA) para 11.
[43]
Sekhoto
fn 14 para 49.
[44]
Minister
of Police and Another v Du Plessis
[2013] ZASCA 119
;
2014 (1) SACR 217
(SCA) where it was held that
although the arrest was unlawful, the arrestee’s continued
detention was unlawful as a telephone
could have corroborated his
alibi.
[45]
Sekhoto
fn 14 para 44.
[46]
Section
59(1)
(a)
of the CPA provides:
‘
An
accused who is in custody in respect of any offence, other than an
offence referred to in Part II or Part III of Schedule 2
may, before
his or her first appearance in a lower court, be released on bail in
respect of such offence by any police official
of or above the rank
of non-commissioned officer, in consultation with the police
official charged with the investigation, if
the accused deposits at
the police station the sum of money determined by such police
official.’
[47]
See
in this regard
Zealand
v Minister of Justice and Constitutional Development
and
Another
[2008]
ZACC 3
,
2008 (4) SA 458
(CC);
De
Klerk v Minister of Police
[2019] ZACC 32
,
2020 (1) SACR 1
(CC);
Woji
v Minister of Police
2015 (1) SACR 409
(SCA); and
Mahlangu
and Another v Minister of Police
[2020] ZASCA 44
(SCA);
2020 (2) SACR 136
(SCA).