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[2023] ZAECQBHC 20
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De Bruin and Another v Minister of Police N.O and Another (849/2018;895/2018) [2023] ZAECQBHC 20 (28 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO. 849/2018
895/2018
In
the matter between:
GIDEON
DE BRUIN
First plaintiff
NEVILLE
PETERSON
Second plaintiff
and
MINISTER
OF POLICE
N.O.
First defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second defendant
JUDGMENT
LAING J
[1]
This is an
application for absolution from a claim for damages. The plaintiffs
brought three claims against the defendants: wrongful
and unlawful
arrest and detention; wrongful and unlawful assault; and unlawful
prosecution.
[1]
The third and
final claim forms the subject of the defendants’ application.
The
plaintiffs’ case
[2]
The plaintiffs pleaded that police officers arrested them on 4 June
2017
in Cannon Street, Kariega (Uitenhage). They alleged that the
officers in question assaulted them prior to the arrest and again at
the police station in Church Street, before detaining them in a
holding cell. The plaintiffs appeared in the Magistrates’
Court
on 6 June 2017, whereafter they were released. The criminal
proceedings were postponed on several occasions before charges
were
withdrawn on 13 July 2017.
[3]
In his particulars of claim, the first plaintiff alleged that the
officers
wrongfully and unlawfully set the law in motion by laying
charges of common assault against him and opening an investigation
docket.
He averred that the officers and the state prosecutor
assessed the docket and ought to have known that there was no
prima
facie
case against him and that the charge should have been
withdrawn. He alleged that they owed him a duty of care in that
regard. The
continued prosecution, he said, amounted to wrongful,
unlawful and negligent conduct, the result of which being that he
suffered
damages in the sum of R 400,000.
[4]
The second plaintiff’s particulars of claim were almost
identical.
However, he also made the averment that the state
prosecutor proceeded against him without reasonable and probable
cause and that
he or she, and the officers in question, acted
animo
iniuriandi
. He, too, claimed damages in the sum of R 400,000.
[5]
It is necessary to pause and mention that the second plaintiff’s
particulars of claim were amended after the defendants had raised an
exception. They argued, at the time, that the second plaintiff’s
claim failed to disclose a cause of action based on malicious
prosecution. No exception was raised in relation to the first
plaintiff’s
particulars.
First
defendant’s case
[6]
The first defendant admitted that police officers opened a docket to
facilitate
the prosecution of the first plaintiff but denied the
remaining allegations. He pleaded that the charges against the first
plaintiff
were withdrawn because of a mediation process initiated by
the latter’s attorneys, which culminated in the first
plaintiff’s
having apologised to the officer involved, Sgt Eric
Kriedemann. He denied liability for the damages claimed.
[7]
Similarly, the first defendant denied liability for the damages
claimed
by the second plaintiff. His plea was essentially the same as
that in relation to the first plaintiff.
Second
defendant’s case
[8]
The second defendant pleaded that the relevant state prosecutor had
proceeded
with the prosecution of the first plaintiff on the strength
of the statements submitted by Sgt Kriedemann and Const Ntsikelelo
Roman. She averred that the state prosecutor had provided the first
plaintiff’s attorneys with copies of the contents of the
docket
and that the matter had been remanded for trial on 25 August 2017.
[9]
Before the trial commenced, the above attorneys requested that the
matter
be considered for mediation. The complainant, Sgt Kriedeman,
agreed thereto, which led to the first plaintiff’s offering an
apology for the assault, which was accepted. The charges were
withdrawn. Consequently, the second defendant denied liability for
the first plaintiff’s claim for damages.
[10]
The second defendant’s plea to the second plaintiff’s
claim was almost identical.
Likewise, she denied liability.
Trial
proceedings
[11]
The matter went to trial on all three of the plaintiffs’
claims. Whereas the plaintiffs
led a considerable amount of evidence
regarding the assault and the events leading to their arrest and
incarceration, very little
was advanced in relation to the
prosecution of the criminal charges.
[12]
To complicate the matter, there was confusion as to the legal basis
for the plaintiffs’
claims. This needs to be discussed further.
Issues
to be decided
[13]
Both plaintiffs indicated in their particulars that their third and
final claims were for
unlawful prosecution. On closer examination,
each of the claims appears to be a delictual action for damages,
alleging wrongful
and negligent conduct on the part of the
defendants. There are, however, also faint traces of a claim for
damages arising from
malicious prosecution. This is especially so in
relation to the second plaintiff’s claim.
[14]
In argument, counsel for the first defendant pointed out that there
is a difference between
a claim for unlawful prosecution and one for
malicious prosecution. The plaintiffs seem to have conflated the
concepts. The court
is inclined to agree.
[15]
The confusing nature of the pleadings attracted an exception to the
second plaintiff’s
particulars. It is unclear why this was not
done regarding the first plaintiff, although it may have had
something to do with the
management of the respective cases prior to
their consolidation. Notwithstanding the subsequent amendment of the
second plaintiff’s
particulars, it can well be contended that
both sets of particulars remain vague, embarrassing, and lack the
averments necessary
to sustain a cause of action, as contemplated
under the provisions of rule 23 of the Uniform Rules of Court
(‘URC’).
It is unfortunate that this issue was not dealt
with conclusively either before the close of pleadings or before the
commencement
of trial. The difficulties posed by the confusing nature
of the pleadings manifested themselves in the parties’
arguments,
where aspects of both unlawful and malicious prosecution
were addressed.
[16]
In the end, it is left to the court to decide merely what has been
placed before it. The
chief issue for determination is whether the
application for absolution succeeds.
Legal
framework
[17]
Under rule
39(6) of the URC, a defendant may apply for absolution from the
instance at the close of the plaintiff’s case.
In
Carmichele
v Minister of Safety and Security and another
,
[2]
the Constitutional Court confirmed
[3]
that the test to be applied is that set out by the erstwhile
Appellate Division in
Claude
Neon Lights (SA) Ltd v Daniel
,
[4]
where Miller AJA held:
‘
when absolution
from the instance is sought at the close of plaintiff’s case,
the test to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which a Court,
applying its mind
reasonably to the evidence, could or might (not should or ought to)
find for the plaintiff.’
[5]
[18]
To avoid a
ruling of absolution from the instance, the plaintiff is required to
adduce
prima
facie
evidence or proof, which must be assumed to be true unless there are
clear indications to the contrary.
[6]
The court is not required to make credibility findings at this stage,
except where the witnesses have palpably broken down and
where it is
clear that what they have stated is not true.
[7]
[19]
This, briefly, is the framework that is relevant to the present
matter. We proceed now
to apply the principles.
Application
of the principles to the facts
[20]
It is
necessary, before embarking upon an assessment of the plaintiffs’
claims, to point out the obvious: the
prima
facie
evidence or proof presented by the plaintiffs must sustain the cases
pleaded in their particulars. This requires us, at the outset,
to
return to the question of what exactly comprises the basis of each of
the plaintiffs’ respective claims. To that effect,
both
plaintiffs have relied on unlawful prosecution.
[8]
Unlawful
prosecution
[21]
The
Constitutional Court, in
Carmichele
,
[9]
was prepared to develop the common law to recognise a claim for
damages brought by a third party regarding the negligent conduct
of a
prosecutor. The position was affirmed more recently in
Minister
of Justice and Constitutional Development v X
,
[10]
where the Supreme Court of Appeal awarded damages to a mother and her
five-year old daughter because of a prosecutor’s failure
to
have taken reasonable steps to prevent the release of a convicted
rapist. The law does not seem to have reached a stage of development,
however, where an accused person in criminal proceedings can be
awarded damages for ordinary negligence on the part of the
prosecuting
authority or delegated officials.
[22]
In
Matshego
v Minister of Police
,
[11]
the court considered a claim arising from the plaintiff’s
arrest and prosecution on a charge of rape. In his amended
particulars,
the plaintiff alleged that:
‘
The defendant
alternatively the prosecutor in charge of alternatively handling the
prosecution of the plaintiff failed to properly
consider the
complaint of the rape complainant and the available evidence when he
decided to proceed with the prosecution of the
plaintiff
alternatively to oppose the plaintiff’s application for
bail.’
[12]
[23]
The court interpreted the claim to be that the Director of Public
Prosecutions had negligently
failed to appreciate that the state’s
case had such slender prospects of success that it ought not to have
been allowed to
proceed or that it would have been inimical to the
interests of justice for the state to have opposed the granting of
bail. There
were two components to the plaintiff’s case:
wrongful arrest and negligent prosecution. In relation to the latter,
Tuchten
J went on to hold as follows:
‘
This cause of
action was not known to our common law, which recognised in this
field only the delict of malicious prosecution, a
claim which arises,
all other things being equal, when the defendant sets the criminal
law in motion against a plaintiff while
knowing full well that the
prosecution cannot succeed… Counsel submitted… that our
law had recognised the delict
of negligent prosecution… I do
not read any of these cases as developing the common law so as to
create the delict of negligent
prosecution. In the absence of
authority binding on me, I view such a development of the common law
as undesirable. It would have
a harmful effect on the administration
of the criminal law if prosecutors ran the risk of being held liable
in damages if they
honestly applied their minds to the question
whether a case should be withdrawn at the first appearance of the
accused in court
and negligently decided that the case should not be
withdrawn. In the vast majority of cases and nearly all, if not all,
serious
cases, further investigation is required after the first
appearance of the accused in court before the case is ready for
trial.
Recognising the delict of negligent prosecution would require
a prosecutor to anticipate the outcome of the investigation. It would
also enable an accused person to place pressure on a prosecutor by
suggesting personal liability or damage to the prosecutor’s
career prospects if the case were allowed to continue past the first
appearance in court. In short, a prosecutor who ran the risk
of being
held liable for negligent prosecution would find it difficult to
carry out his duties without fear as required under section
176(4) of
the Constitution.’
[13]
[24]
The same principles can be said to apply when, as in the present
matter, the case has reached
trial stage. Recognising a claim for
damages because of the negligent prosecution of an accused person
would require the prosecutor
to anticipate the outcome of the trial
itself.
[25]
Similarly,
in
Minister
of Police v Gombakomba
,
[14]
a full bench considered the first respondent’s claim for
damages arising from his arrest and prosecution for the
transportation
of contraband cigarettes. The first respondent, a
Zimbabwean citizen, claimed for loss of income by reason of a bail
condition
that had required him to surrender his passport, pending
the finalisation of criminal proceedings. The court observed that:
‘
As to the second
claim, it was conceded by counsel for the respondents in the hearing
before us that the basis for the second claim
was that the
representative of the second appellant took too long to determine
that the state could not succeed in the prosecution
of the first
respondent. This amounts to the contention that the second appellant,
through his representative, the local prosecutor,
was negligent. As
counsel readily conceded, in our law negligent prosecution does not
give rise to a delictual claim on the part
of an accused person and
this second claim could not succeed.’
[15]
[26]
The law
appears not to have arrived at a point where the ordinary negligence
of a prosecutor would give rise to a claim for damages
on the part of
an accused person.
[16]
There would be obvious and sound policy considerations behind a
court’s reluctance to develop the law to that extent, which
would seem to hamper or unfairly constrain a prosecutor in the
effective fulfilment of his or her role. Consequently, in the present
matter, the plaintiffs’ reliance on a cause of action based on
unlawful (negligent) prosecution is misplaced.
[27]
The usual route available to the plaintiffs would be a cause of
action based on malicious
prosecution, i.e. the
actio iniuriarum
.
The implications thereof for the present matter will be discussed in
the paragraphs that follow.
Malicious
prosecution
[28]
As a
starting point, there is a clear distinction between a claim for
malicious prosecution and one for wrongful legal proceedings.
An
example of the latter would be the attachment or execution of
property without a valid writ; another example would be an arrest
without a warrant. The defendant would be required to prove the
lawfulness of the attachment or execution, or the arrest, and would
not be able to rely on the absence of
animus
iniuriandi
.
[17]
The present matter does not pertain to wrongful legal proceedings.
[29]
The
elements of a successful claim for malicious prosecution were
confirmed in
Minister
of Justice and Constitutional Development v Moleko
,
[18]
where Van Heerden JA held as follows:
‘…
In order
to succeed (on the merits) with a claim for malicious prosecution, a
claimant must allege and prove–
(a) that the
defendants set the law in motion (instigated or instituted the
proceedings);
(b) that the
defendants acted without reasonable and probable cause;
(c) that the
defendants acted with “malice” (or
animo iniuriandi
);
and
(d)
that the
prosecution has failed.’
[19]
[30]
It was common cause, in the present matter, that there had been an
altercation between
the plaintiffs and two police officers. It was
also common cause that Sgt Kriedemann’s statement had formed
the basis for
charges of common assault against the plaintiffs. It
was not disputed that the statement had been accompanied by those of
Const
Roman and two other officers. It was, furthermore, common cause
that the proceedings had culminated in a mediated outcome, whereby
the plaintiffs had apologised and agreed not to assault Sgt
Kriedemann in the future.
[31]
To the above, the plaintiffs vehemently denied that either of them
had assaulted Sgt Kriedemann.
They alleged, moreover, that they had
entered mediation proceedings and concluded the subsequent agreement
under duress, without
legal representation.
[32]
Counsel for
both defendants argued that the plaintiffs failed to produce any
evidence to support a cause of action based on malicious
prosecution.
The court, having considered the record in detail, tends to agree.
Whereas the plaintiffs presented a detailed description
of the
circumstances that led to their arrest and detention, they did not
advance any material facts to demonstrate that the police
officers
involved, and the prosecutor, had lacked an honest belief, based on
reasonable grounds, that the instigation or institution
of
proceedings was justified.
[20]
Similarly, the plaintiffs failed to demonstrate that the defendants
had the intention to injure them, whether in the form of
dolus
directus
or
indirectus
.
[21]
[33]
Of more
concern, however, is the nature of the cause of action for the
plaintiffs’ third and final claims. Besides the problems
created by the paucity of the plaintiffs’ evidence regarding
the above claims, the court is drawn back, ineluctably, to the
difficulties posed by the cases that they pleaded. There are hints of
the
actio
iniuriarum
in each of the claims, even more so in relation to the second
plaintiff’s amended particulars. However, when reduced to their
essence, the claims reveal a delictual cause of action based on
unlawful (negligent) prosecution.
[22]
[34]
At the very
commencement of trial, counsel for the plaintiffs addressed the court
and explained that the third and final claims
were for damages
arising from malicious prosecution. Counsel for the first defendant
immediately took issue with this and contended
that the claims were
based on unlawful prosecution. Importantly, counsel for the
plaintiffs merely acknowledged the point, without
disputing the
contention made. She proceeded further in accordance with the cases
pleaded in her clients’ particulars, viz.
unlawful prosecution.
Later in the proceedings, counsel for the first defendant started his
cross-examination of the first plaintiff
by reminding the latter that
he had sued for damages arising from unlawful prosecution. Counsel
for the plaintiffs never challenged
this assertion. In her heads of
argument, moreover, counsel for the plaintiffs expressly disavowed
reliance on malice, indicating
instead that the plaintiffs’
cases were based on the unlawfulness of the defendants’
conduct.
[23]
[35]
In
Minister
of Safety and Security v Slabbert
,
[24]
Mhlantla JA observed that:
‘…
The
purpose of the pleadings is to define the issues for the other party
and the court. A party has a duty to allege in the pleadings
the
material facts upon which it relies. It is impermissible for a
plaintiff to plead a particular case and seek to establish a
different case at the trial. It is equally not permissible for the
trial court to have recourse to issues falling outside the pleadings
when deciding a case.
…
There are,
however, circumstances in which a party may be allowed to rely on an
issue which was not covered by the pleadings. This
occurs where the
issue in question was canvassed fully by both sides at the
trial.’
[25]
[36]
The above principles apply in the present matter. The plaintiffs’
pleadings, as imperfect
as they may be, were not designed to support
claims for malicious prosecution. Instead, as plaintiffs’
counsel made clear
at the start of the trial and confirmed in
argument, the claims were based on unlawful prosecution. This was the
case which the
defendants were called upon to meet. It is not
permissible for this court to entertain anything to the contrary,
especially where
nothing to that effect was apparent from the
plaintiffs’ evidence.
Relief
and order to be made
[37]
The plaintiffs’ claims were based on unlawful (negligent)
prosecution. The courts
have indeed considered delictual claims for
damages arising from the negligence of a prosecutor, as already
discussed. Whereas
the courts have recognised that damages may be
awarded to third party victims of such negligence, the case law
indicates that the
courts are not (yet) prepared to entertain claims
brought by an accused person for damages suffered because of the
ordinary negligence
of the prosecutor.
[38]
The same
appears to be true in relation to the ordinary negligence of police
officers. In
AK
v Minister of Police
,
[26]
the Constitutional Court held the police liable for damages caused by
negligent investigative work, but this court has been unable
to
locate any authority for the assertion that the police can be held
liable for damages arising from unlawful (negligent) prosecution,
as
opposed to malicious prosecution.
[27]
The case law has, in contrast, long recognised claims for damages
arising from wrongful arrest and detention, for which the
actio
iniuriarum
is available as a cause of action.
[39]
Consequently, the third and final claims in the present matter, as
pleaded, do not give
rise to a proper cause of action against the
defendants. It is possible that a more vigorously pursued exception
would have dealt
decisively with the issue at a far earlier stage.
[40]
To the extent that the plaintiffs may have been able to overcome the
above difficulties,
they nevertheless failed to place sufficient
facts before the court to sustain claims for malicious prosecution.
Neither of the
plaintiffs advanced any
prima facie
evidence or
proof to demonstrate that the defendants had lacked reasonable and
probable cause and that they had acted with malice
against them.
[41]
Ultimately, there is no evidence upon which this court, applying its
mind reasonably, could
or might find for the plaintiffs regarding
their third and final claims. The costs must follow the result.
[42]
The following order is made:
(a)
the application for absolution from the instance, brought by the
first
and second defendants, respectively, against the first and
second plaintiffs’ claims for unlawful prosecution (claim no.
3), are granted; and
(b)
the plaintiffs are held liable for the defendants’ costs,
jointly
and severally, in the event of one paying the other to be
absolved.
JGA
LAING
JUDGE
OF THE HIGH COURT
For
the plaintiffs:
Adv
Du Toit, instructed by Lessing, Heyns & Van der Bank Inc.,
Gqeberha.
For
the first defendant:
Adv
Madokwe, instructed by the Office of the State Attorney, Gqeberha.
For
the second defendant:
Adv
Makiwane, instructed by the Office of the State Attorney,
Gqeberha.
Date
of submission of heads of argument:
06 December 2022.
Date
of delivery of judgment:
28 March 2023.
[1]
The
nature of the claim regarding ‘unlawful prosecution’ has
given rise to some confusion, as will be discussed below.
For the
moment, this and the remaining claims are described as they appear
in the plaintiffs’ particulars.
[2]
2001
(10) BCLR 995 (CC).
[3]
At
paragraph [26].
[4]
1976
(4) SA 403 (A).
[5]
At
409G-H. See, too,
Gordon
Lloyd Page & Associates v Rivera
2001 (1) SA 88
(SCA), at 92E-93A; and
Jacobs
v Minister of Justice
2022 (2) SACR 569
(SCA), at paragraph [3].
[6]
Atlantic
Continental Assurance Co of SA v Vermaak
1973
(2) SA 525
(E), at 527C-D.
[7]
Siko
v Zonsa
1908
TS 1013
;
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958 (4) SA 307
(T); and
Gafoor
v Unie Versekeringsadviseurs (Edms) Bpk
1961 (1) SA 335
(A), at 340D-E. In general, see the discussion in
Van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat epublications, RS 20, 2022), at D1-530 to D1-531.
[8]
A
more accurate description would be ‘negligent prosecution’.
The case law, however, does not appear to be consistent
in the use
of the term.
[9]
See
n 2,
supra
.
[10]
2015
(1) SA 25 (SCA).
[11]
2015
JDR 2275 (GP).
[12]
At
paragraph 2.
[13]
At
paragraphs 24-26.
[14]
2016
JDR 0662 (GP).
[15]
At
paragraph 4.
[16]
It
is possible that there could eventually be development in this
direction. See
Heyns
v Venter
2004 (3) SA 200
(T), at 208-9, where the court recognized a claim
based on gross negligence, as discussed in Neethling and Potgieter,
Law
of Delict
(LexisNexis, 2010), at 345, n 255.
[17]
See
the discussion under ‘Malicious and wrongful legal
proceedings’ in Harms,
Amler’s
Precedents of Pleadings
(LexisNexis, 9ed, 2018).
[18]
[2008]
3 All SA 47 (SCA).
[19]
At paragraph [8].
See,
too,
Minister
of Safety and Security NO v Schubach
[2014] ZASCA 216.
[20]
Prinsloo
v Newman
[1975]
2 All SA 89 (A).
[21]
Moaki
v Reckitt and Colman (Africa) Ltd and another
[1968]
3 All SA 242
(A), at 246.
[22]
The
term, ‘negligent prosecution’, is preferable and more in
alignment with the treatment of the subject in case law.
Nevertheless, ‘unlawful prosecution’ will continue to be
used for purposes of the judgment, to reflect the language
of the
plaintiffs’ pleadings.
[23]
Curiously,
counsel for the plaintiffs referred, in argument, to
Rudolph
and others v Minister of Safety and Security and another
2009
(5) SA 94
(SCA) and to
Korkie
v Minister of Police
2022
JDR 0178 (ECG), which pertain to claims based on malicious
prosecution.
[24]
[
2010]
2 All SA 474 (SCA).
[25]
At
paragraphs [11] to [12].
[26]
[2022]
ZACC 14.
[27]
In
Palmer
v Minister of Safety and Security
2001 JDR 0444 (W), Horn J awarded damages against the police for
unlawful prosecution. The grounds for the decision (
ratio
decidendi
)
were, however, clearly based on the elements of a claim for
malicious prosecution.