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[2024] ZAFSHC 69
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Rathebe v Minister of Police and Another (583/2021) [2024] ZAFSHC 69 (1 March 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:

NO
Interest
to other Judges:        YES
Circulate
to Magistrates:        YES
Case
No: 583/2021
In
the matter between:
TEBOHO
RATHEBE
Plaintiff
and
THE
MINISTER OF POLICE
First
Defendant
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Second
Defendant
JUDGMENT
CORAM:
NAIDOO J
HEARD
ON:
28 February 2023, 1-3
March 2023, 27-28
November
2023 and 1 December 2023
DELIVERED
ON:
1 MARCH 2024
INTRODUCTION
[1]
The plaintiff’s claims in this matter are for the
recovery of non-patrimonial damages, and are founded
in the
actio
iniuriarum
. He claimed damages against the defendants in two
claims, the first being against the first defendant, the Minister of
Police (the
Minister) for damages he suffered as a result of his
being wrongfully and unlawfully arrested and detained in connection
with a
criminal charge of Rape, and the second claim is against the
second defendant, the National Director of Public Prosecutions
(NDPP),
for damages arising from what he alleges to be malicious
prosecution in respect of such charge. Adv C Zietsman represented the
plaintiff, and Adv PG Chaka represented the defendants.
THE
PLEADINGS
[2]
The plaintiff claims damages, in Claim 1, in
an amount of Four Hundred Thousand Rand (R400 000.00),
together
with interest and costs, for unlawful arrest and detention and in
Claim 2, in an amount of Two Hundred Thousand Rand (R200 000.00)

together with interest and costs, for malicious proceedings, although
it was clear during the trial that he was referring to malicious

prosecution as part of such proceedings. He alleges that on 14 April
2019, and at his home in Qwa Qwa, he was wrongfully and unlawfully

arrested by members of the South African Police Service (SAPS) from
the Makwane Police Station, without a warrant of arrest. The
alleged
charge in respect of which he was arrested was one of Rape. He was
detained at the Makwane police station until 16 April
2019.
[3]
On 16 April 2019, the plaintiff appeared in the Makwane Magistrate’s
Court, where bail was
ostensibly opposed by the police, so the matter
was remanded to 2 May 2019 for a formal bail application. He was
thereafter detained
at the Harrismith Correctional Facility from 16
April 2019 until 15 May 2019. When he appeared on 2 May 2019, the
matter could
not be heard due to “time constraints” and
was remanded to 15 May 2019. On the latter date he was released on
R500.00
bail and made three more appearances in the Makwane
Magistrate’s Court until 29 July 2019, when the NDPP declined
to prosecute
him and the charge against him was withdrawn. At all
material times, the members of SAPS and prosecutors were acting in
the course
and scope of their employment with the first and second
defendants respectively.
[4]
The plaintiff alleges that his arrest was unlawful for a number of
reasons, which in essence,
are that:
4.1
the members of SAPS did not take into account his rights in terms of
section 12 of the Constitution,
Act 106 of 1996 (the Constitution),
and without good cause, arbitrarily deprived him of his freedom.
4.2
the said SAPS members had no grounds to interfere with his
constitutional rights, as he posed no danger
to himself or the
community, he would not have evaded his court hearing, there was no
urgency to justify his arrest by SAPS, they
did not take into account
that he had a known and fixed address, they breached the public law
duty not to violate the plaintiff’s
right to freedom and/or
SAPS breached the plaintiff’s private law right not to be
unlawfully arrested and detained.
[5]
The plaintiff pleaded additionally and/or alternatively that his
arrest was unlawful as the members
of SAPS had no
prima facie
case
and/or reasonable grounds to arrest him.  In the further
alternative, he alleged that the members of SAPS did not exercise

their discretion or did not exercise their discretion properly and
bona fide
, as there was no obligation on them to arrest him,
they did not investigate the matter properly, did not follow up on
the plaintiff’s
explanation and there were no grounds to
suspect that he had committed an offence.
[6]
Further alternative grounds pleaded by the plaintiff were that
members of SAPS who arrested him
did not comply with the prescripts
of their Standing Orders (General) 341 (G). More specifically their
goal was not to investigate
the matter further and/or prevent the
plaintiff from committing any further offences, protect the plaintiff
and/or put an end to
committing an offence.
[7]
With regard to claim 2, the plaintiff
alleged that the members of SAPS wrongfully and maliciously set
the
law in motion by arresting, charging and prosecuting him on the
alleged charge of Rape. The second defendant wrongfully and

maliciously proceeded with the prosecution from 14 April 2019 to 29
July 2019. When he appeared in court on 16 April 2019, bail
was
denied at the instance of the employees of the first and second
defendants, resulting in his further detention at the Harrismith

Correctional Facility. The employees of the first and second
defendants, acting in the course and scope of their employment with

the first and second defendants, continued to prosecute the plaintiff
until the charge against him was withdrawn on 29 July 2019.
The
arrest and prosecution of the plaintiff were actuated by malice
and/or
animo iniuriandi
and/or negligence, as the employees of
the first and second defendants had no reasonable and/or probable
cause for doing so, nor
did they have any belief in the truth of the
information.
[8]
The defendants admit the arrest and detention in April 2019, but deny
that the arrest and detention
were unlawful, as the arresting officer
was a peace officer as described in section 40(1)(b) of the Criminal
Procedure Act 51 of
1977 (the CPA) who had a reasonable suspicion
that the plaintiff had committed an offence in terms of Schedule 1 of
the CPA. The
defendants admit that the arrest was effected without a
warrant of arrest. They also assert that
animus injuriandi
and
malice were absent in the arrest and prosecution of the plaintiff.
The defendants pleaded that, based on the available facts,
there was
a
prima facie
case against the plaintiff, and that, as a
result, there was reasonable cause to arrest the plaintiff. The
second defendant alleged
that members of the Prosecuting Authority
who dealt with the plaintiff’s case acted, at all material
times, impartially,
in good faith and in furtherance of their
statutory powers, duties and functions.  The second defendant
pleaded further that
as new evidence came to light, which exonerated
the plaintiff, the prosecutor declined to prosecute the appellant. He
was not discharged
in terms of section 174 of the CPA, as he alleged.
EVIDENCE
FOR THE PLAINTIFF
[9]
The plaintiff testified and called one witness. His evidence is that
on 14 April 2019, a number
of police vehicles arrived at his home. A
female police officer approached him, while the rest of the police
officials remained
in their vehicles. The police officer, who was
accompanied by the plaintiff’s former girlfriend, M[...],
informed him that
he was being arrested for rape. He said that he had
not seen M[...] for a long time so he could not have raped her. He
was then
informed that it was M[...]’s daughter who was the
complainant. He was thereafter placed under arrest, transported to
the
police station and lodged in the police cells.
[10]
The plaintiff alleged that he was detained in deplorable
circumstances at the Makwane police cells. The cell
was filthy, the
toilet was non-functional, there were no beds. He was given a
“sponge” (which I take to mean a sponge
mattress) and a
dirty blanket which had a bad smell, as well as lice. He was not
given any water, although he was given something
to eat. The
Harrismith Correctional Facility was slightly better, as they slept
on beads which had a sponge mattress, but gangsterism
was a problem
in prison. He was forced to join a gang while in prison to ensure his
own safety.
[11]
The plaintiff’s girlfriend, Moleboheng Veronica Mlangeni
testified that she was with the plaintiff
and left him shortly before
the police arrived. After his arrest she received a call from him
between 8h00 and 9h00, informing
her of his arrest and what the
charge was. Her evidence is that on 30 March 2019, when the plaintiff
is alleged to have raped the
complainant, she was with the plaintiff
at his home, when the complainant arrived in the company of another
child called Momo.
The complainant was sent by the plaintiff’s
sister to fetch a bucket of water. The complainant said she was
hungry and the
witness gave her a burger which they had in the house.
Both children then left. It was therefore impossible for the
plaintiff to
have raped the complainant as she was present with him
on that day. After the plaintiff’s release on bail, she and the
plaintiff
were at a shopping centre when the complainant approached
and asked the plaintiff for R10.00 to buy food, as she was hungry. He

gave her the money.
[12]
The further evidence of this witness is that the prosecutor dealing
with the matter obtained her telephone
number and sent numerous
messages to her attempting to proposition her to have an intimate
relationship with him. He allegedly
said she should leave the
plaintiff as he was in jail and he was not her type. She resisted
such proposition by the prosecutor.
She told the plaintiff about the
prosecutor’s conduct but did not report this to the police or
anyone else, as nobody enquired
about it. She conceded that it was
important information and someone might have been able to help the
plaintiff if she had reported
it. The plaintiff closed his case after
this witness testified.
EVIDENCE
FOR THE DEFENDANT
[13]
The defendants called three witnesses, the arresting officer,
Sergeant Matieho Grace Tshabalala (Sgt Tshabalala),
the investigating
officer, Warrant Officer Rathlapi Daniel Maloka (I/O or Maloka) and
the prosecutor, Rabasuthu Qhojeni (Qhojeni),
who was involved in the
prosecution of the plaintiff. Sgt Tshabalala testified that she is
attached to the Cluster Operational
Command Centre and Tracing Team.
Their cluster includes all the police stations in Phuthaditjhaba. On
the morning of 14 April 2019,
she and her team proceeded to the
Makwane police station and while they were there, they received a
call from Warrant Officer Maloka,
who handles child and rapes cases,
requesting their assistance with a recently opened docket, where the
suspect was known.
[14]
She and her team (12 in all) met Maloka, and he handed her the
docket, with the instruction to arrest the
suspect, being the
plaintiff. She contacted the complainant’s mother, M[...], and
arranged to meet near the latter’s
place of residence. She
interviewed the mother and then the complainant. Sgt Tshabalala
enquired why it took so long to open a
case. M[...] advised that the
schools were closed and the complainant was visiting the plaintiff’s
parental home. The complainant
was also interviewed and she narrated
to Sgt Tshabalala how the rape occurred on 30 March 2019. Thereafter
she requested M[...]
to show her where the plaintiff lived. They took
M[...] with them and she took them to the plaintiff’s house.
[15]
They were met by the plaintiff at his house. Sgt Tshabalala explained
that they were there to arrest him
in connection with a charge of
rape. After she read him his rights, they transported him to the
Makwane police station where he
was booked in and locked in a cell.
They then called Maloka and advised him that the suspect was arrested
and placed in the
police cells, and that the docket he gave them is
at the police station.
[16]
Warrant Officer Maloka, the investigating officer in this matter
testified that he received a call from the
Makwane police station
about a rape matter. He went there and found the complainant and her
mother. He interviewed the complainant
in the presence of her mother,
and wanted to establish if what was written in the statements was
what would be repeated verbally.
The complainant told him that she
had visited the sister of the plaintiff, whose name is Maseponki, and
the latter sent her to
the plaintiff’s house to fetch a bucket
of water. When the complainant arrived at the plaintiff’s
house, he was alone.
He took her to the bedroom and raped her. She
returned to his sister’s house and informed her what had
happened. Maseponki
promised to call the police. The complainant
heard her make a call but did not hear what Maseponki said. The
police never arrived
until that day (13 April 2019), when her mother
realised that something was wrong with her, and took her to the
police station.
[17]
Maloka thereafter took the complainant to the hospital to be
examined, but was unable to get assistance,
as it was the weekend,
and the incident of rape did not happen on that day. He was asked to
return on Monday. He took her back
to the hospital on 15 April 2019,
where she was examined and the medico-legal report (J88) was
completed by the nurse on duty He
testified further that on the day
before that, being 14 April 2019, he received the particulars of the
plaintiff and requested
the Tracing Unit to assist him. He met them
along the way, at a village called Qholaqhwe, where he briefed them
as to what had
to be done, told them that the suspect is a known
person and handed the docket to them. Later that day, the Tracing
Unit called
him to say that the suspect was arrested and thereafter
handed the docket back to him.
[18]
He obtained a statement from the complainant’s mother on 15
April 2019. The plaintiff was charged on
16 April 2024 and made his
first appearance in court on the same day. The state and Maloka were
opposed to bail, as further investigation
into the complainant’s
safety was required. Maloka wanted to ascertain whether or not the
complainant was living in the same
house as the plaintiff, or whether
there was any contact between them. After his investigations revealed
that the complainant was
living with her mother and not the
plaintiff, Maloka was no longer opposed to bail. The matter was
postponed at this point for
Maloka to be cross-examined. When the
matter resumed a few months later, the court was informed that the
plaintiff had in the interim
passed away. The executor of his estate
was substituted as the plaintiff in the matter after the relevant
amendment to the summons
was made.
[19]
It emerged from the cross examination of Maloka that when he received
the docket on 13 April 2019, only the
complainant’s statement
was filed therein. When he handed the docket to Sgt Tshabalala on 14
April 2019, with the request
to arrest the plaintiff, it was still
only the complainant’s statement in the docket. He obtained the
statement of the complainant’s
mother, M[...], on 15 April
2019. Based on the information in the docket, he decided to arrest
the plaintiff on 14 April 2019.
I will deal further with this aspect
later.
[20]
Rabasuthu Qhonjeng (Qhojeng or “the prosecutor”) was the
District Court prosecutor who dealt
with the docket relevant to this
matter since the plaintiff’s first appearance in court on 16
April 2019, until the charge
against him was withdrawn on 29 July
2019. His evidence was that bail was initially opposed on 16 April
2019 as the I/O advised
him that the complainant was the plaintiff’s
daughter and the I/O had concerns for her safety. The matter was
remanded to
2 May 2019 for a bail application. On that day, the I/O
advised the prosecutor that he was no longer opposed to bail, as the
complainant
was no longer close to the plaintiff and had moved to a
village. However, due to “time constraints”, the matter
could
not be heard on 2 May 2019 and was remanded to 15 May 2019. On
the latter mentioned date, bail was fixed in the amount of R500.00.
[21]
The matter was then remanded for further investigation twice more, to
5 June 2019 and 4 July 2019. On the
latter date Maloka obtained the
statement of Maseponki and when the prosecutor received the file, he
requested a remand to 29 July
2019, for a decision by the Regional
Court prosecutor. On that date, the Regional Court prosecutor issued
a
nolle prosequi
directive, instructing the District Court
prosecutor to withdraw the charge against the plaintiff, which was
accordingly done on
29 July 2019.
[22]
The addresses of the plaintiff and the complainant were canvassed
with Qhojeng in cross examination and he
said the information he
obtained from Maloka was that those addresses were very close, being
one street away from each other. He
did not question this or
investigate it for himself because he accepted what Maloka had said.
He also said that he did not believe
Maseponki’s statement, as
she did not corroborate the complainant’s statement and he
believed that she was protecting
the plaintiff. He appeared to be
displeased with the decision of the Regional Court prosecutor not to
continue with the prosecution,
stating that if it were up to him, he
would have continued with the prosecution of the plaintiff. The
defendants closed their case
after this witness testified.
[23]
A matter I should mention is the complaint by the plaintiff
that the first defendant failed to call other members
of the Tracing
Unit to testify about the arrest of the plaintiff. The only purpose
that would have served is to either corroborate
or contradict Sgt
Tshabalala’s evidence regarding the time frames she testified
about, as that was in contention when she
testified. The events
relating to the actual arrest of the plaintiff are not seriously in
dispute. He was not mishandled, assaulted
or otherwise mistreated by
the arresting officers. Nothing material turns on the finer details
of who accompanied him into and
out of the house, who was allowed
into the house, and such like. I do not believe that the failure to
call such witnesses requires
a negative inference to be drawn against
the first defendant.
ISSUES
[24]
The issues to be determined by this court are:
24.1 whether the
plaintiff has succeeded in proving the merits of his claim, in
respect of Count 2;
24.2   whether
the first defendant discharged the onus on him to show that the
arrest of the plaintiff was lawful;
24.3 whether the
plaintiff established a causal link between the actions of the
defendants/their employees and the patrimonial loss
he alleges he
suffered.
24.4   the
quantum in respect of Claim 1 and Claim 2
THE
LAW
and
EVALUATION
[25]
As indicated earlier, the first defendant, admitted that the
plaintiff was arrested without a warrant of
arrest, but denied that
the arrest was unlawful. It is well established in our law that where
the arrest of the plaintiff is admitted,
the deprivation of his
liberty is
prima facie
unlawful and the defendant bears the
onus to prove that the arrest and hence the deprivation of the
plaintiff’s liberty was
justified and lawful. However, in his
closing arguments and in his Heads of Argument, Mr Chaka, on behalf
of the first defendant,
conceded that in the face of the evidence
before court, he could not argue that the police officials, for whose
conduct the first
respondent is responsible and/or liable,
entertained a reasonable suspicion that the plaintiff had committed
an offence in terms
of Schedule 1 of the CPA. This concession relates
to Claim 1, and Mr Chaka requested the court to make an appropriate
finding as
to the lawfulness of the arrest.
[26]
I examine now the conduct of Maloka upon whose instructions the
plaintiff was arrested by Sgt Tshabalala
and the Tracing Unit. He
received the docket on 13 April 2019, and interviewed the plaintiff
on the same day. Her statement was
the only statement in the docket
at the time. Her address was given as No 3[…] Q[…]
Village, near Mozulung shop.
The plaintiff’s address was
recorded, in his warning statement, as 2[…]9 L[…],
Thabong. Maseponki’s address
is reflected on her statement as
2[…]8 Lusaka, Thabong. The complainant’s statement
indicated that she was raped on
30 March 2019, some two weeks prior
to 13 April 2019. It is apparent from a reading of the complainant’s
statement, that
she did not mention that the plaintiff was her
father. In fact, she indicated that she called him “Kopano’s
father”.
Yet Maloka testified that the complainant had informed
him that she went to her father Teboho, to fetch water. He testified
that
he read her statement and noticed that she mentioned several
people, including Maseponki, to whom she reported the alleged rape.
[27]
His further testimony was that he did not attempt to interview any of
the persons mentioned in the complainant’s
statement. There was
no J88 in the docket at that stage, but he decided on 13 April 2019,
to have the plaintiff arrested, on very
bare evidence and without
making any attempt to at least obtain a statement from Maseponki,
which on hindsight, decided the fate
of the prosecution. He testified
that he made many unsuccessful attempts to find Maseponki to obtain
the statement, and concluded
that she was evading him. Tellingly, the
investigation diary in the docket bears no recordal of any attempt by
this witness to
find Maseponki.
[28]
He also testified that when he did obtain her statement, he did not
believe her as he was of the view that
she was protecting her
brother, the plaintiff. He based this conclusion on his impression
that she was evading him, which impression
he could not substantiate,
other than to say that he left messages for her with the neighbours.
In attempting to justify his actions,
he continued to refer to the
plaintiff as the complainant’s father, even though he knew at
least by the time he took the
statement of M[...], that she was the
plaintiff’s ex-girlfriend and that the complainant was not his
child. Maloka further
admitted that he had decided, on the basis of
the complainant’s statement that the plaintiff was guilty and
had to be arrested.
This is one of the reasons he opposed bail. The
other reason was to protect the child, as they lived in the same
area.
[29]
A diligent and objective police officer would have immediately
realised that great caution needed to be exercised when
he was faced
with the evidence of a child in a matter as serious as this, and that
he would have had to gather more evidence to
have, at least, a
prima
facie
case against the plaintiff. The safety of the complainant
was never an issue, and Maloka would have known this if he applied
his
mind diligently to the content of the complainant’s
statement. The plaintiff and his sister Maseponki lived close to each

other, while the complainant and her mother lived far from the
plaintiff’s home. This was clear from the addresses furnished

in the complainant’s statement and that of the plaintiff. He
clearly did not even canvass this aspect with the complainant
or her
mother to satisfy himself of the complainant’s safety. Yet this
was the main reason for opposing the fixing of bail
for the
plaintiff. The reality is that the address of the complainant did not
change at all, and she did not relocate from Lusaka
in Thabong to
Qholaqwe. Maloka failed to conduct any investigations in this matter
between 16 April 2019 (the date of the plaintiff’s
first
appearance in court) and 4 July 2019, when he obtained Maseponkie’s
statement, resulting in the unnecessary and unlawful
detention of the
plaintiff for a longer period.
[30]
It seems that Maloka’s view also tainted and influenced the
minds of the prosecutor, Qhojeng, as well
as the arresting officer,
Sgt Tshabala. Qhojeng, remarkably also believed the plaintiff to be
guilty and did not believe Maseponki’s
statement, despite never
having consulted with her or any other witness, and in spite of the
J88 not alluding to sexual assault
or rape. He was prepared to
continue with the prosecution because he did not believe Maseponki.
Sgt Tshabala, appears to have gone
way beyond the instructions of
Maloka to find and arrest the plaintiff. She was required to fetch
M[...] to point out the plaintiff’s
residence, but ended up
interviewing both the complainant and M[...] to satisfy herself as to
what happened, which was not part
of her duties. She said that
tracing and arresting people are her core functions, and not
investigation. She too indicated that
she did not believe the
plaintiff and referred to the complainant as “the abused”.
[31]
The defence witnesses, in my view failed to impress the court as
diligent, objective and reasonable officers
performing their duties
in accordance with the standard required by law. This is particularly
so in Maloka’s case where his
conduct falls far short of the
requirements of section 40(1)(b) of the CPA, the relevant provisions
of which stipulate that
(1)
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, other than the offence of escaping from lawful
custody;
The
evidence is very clear that Maloka did not have sufficient evidence
upon which to arrest the plaintiff, and hence could not
have
entertained a reasonable suspicion that the plaintiff committed an
offence. His suspicions were far from reasonable and were
clearly
unreasonable, emotional and lacking in objectivity. This is no doubt
the basis upon which Mr Chaka made the concession
that he did I
respect of Claim 1.
[32]
I find accordingly that the arrest of the plaintiff was unlawful and
so was his detention from 14 April 2019
to 15 May 2019.  In view
of Maloka’s conduct, which I have described in the preceding
paragraphs of this judgment, there
was no justification for the
detention of the plaintiff up to the date that he was admitted to
bail. If Maloka had obtained Maseponki’s
statement before
arresting the plaintiff, as he ought to have done, it is clear that
the arrest and detention, and the subsequent
prosecution of the
plaintiff would not have taken place. His failure to perform his
duties properly resulted in the unjustifiable
and unlawful
deprivation of the plaintiff’s liberty. The plaintiff’s
claim in respect of Claim 1 must, therefore, succeed.
[33]
I turn now to deal with Claim 2.  The law relating to a claim of
malicious prosecution is well settled.
The requirements for a
successful claim in respect malicious prosecution, are succinctly set
out by the learned authors in
Amler’s Precedent of
Pleadings, 8
th
Edition, p247
, where they
cite the case of
Moleko
case below:
“
To succeed with a
claim for prosecution, a claimant must allege and prove that:
(a)
the defendants set the law in motion –
they instigated or instituted the proceedings;
(b)
the
defendants acted without reasonable or probable cause;
(c)
the defendants acted with malice (or
animo iniuriandi
);
and
(d)
the
prosecution has failed.”
These
were the guidelines provided by the court in
Minister
of Justice and Constitutional Development & Others v Moleko
2009(2) SACR 585 (SCA)
, which was
applied in the matters of
Minister
of Safety and Security v Lincoln
2020 (2) SACR 262
(SCA)
and by the Full Court in
Minister
of Police and Another v Hoogendoorn
2022 (2) SACR 36
(GP)
[34]
It is a trite principle of our law that a person ought not to be
prosecuted where the minimum evidence upon
which he can be convicted
is absent. I have set out how the conduct of the police officials and
particularly Maloka, which
resulted
in
them setting the law in motion against the plaintiff, without grounds
for doing so. Put differently, they acted without reasonable
or
probable cause.   With regard to malicious prosecution, t
he
test for reasonable and probable cause set out in
Beckenstrater
v Rottcher and Theunissen 1955(1) SA 129 (A)
about
sixty nine years ago still holds relevance today. The court said at
p136 A-B
“
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”.
[35]
The manner in which Qhojeng dealt with the docket is relevant to
assessing whether the Prosecuting Authority
acted with malice or
animus iniuriandi.
I have set out the various remands in this
matter before the charge was withdrawn on 29 July 2019. On each
occasion, it seems that
Qhonjeni was guided by what Maloka said in
respect of further investigation, without, for instance, himself
giving instructions
to guide the investigation. He clearly bought
into Maloka’s view that the plaintiff was guilty and in spite
of evidence that
did not corroborate the complainant’s version,
he indicated that if it were up to him, he would have continued with
the prosecution.
This is very relevant, as it was clearly (and
fortunately for the plaintiff) not up to him.
[36]
In spite of his mindset and belief that the plaintiff was guilty,
there is nothing on record to show that
he deliberately and
maliciously delayed the matter or acted contrary to the requirements
of his position as prosecutor to prejudice
the plaintiff. His mistake
was to rely on untrue and incorrect information from Maloka, which he
did not know at the time was incorrect.
The plaintiff was indeed
legally represented throughout the proceedings, so Qhojeng’s
evidence that the matter was remanded
for more than the required
seven- day period at a time, due to the plaintiff’s legal
representative being unavailable, is
not unreasonable or indicative
of malice. In any event, the presiding officer has the final say in
remanding a matter, which he
does by the exercise of his discretion.
There is no evidence to suggest that Qhojeng played any part in
improperly influencing
the exercise of that discretion by the
presiding officer. It is common cause that Maloka only obtained and
filed the statement
of Maseponki on 4 July 2019. Upon receipt of that
statement, Qhojeng, in spite of his not believing the content
thereof, sought
a remand in order to refer the matter for decision by
the Regional Court Control Prosecutor.
[37]
The decision by the Regional Court Control Prosecutor to have the
charge withdrawn was taken on 29 July 2019,
and the charge was
withdrawn against the plaintiff that same day. The prosecution in
that respect, therefore, failed. As I indicated
earlier, the
plaintiff bears the onus to prove the elements required for malicious
prosecution to be established. With regard to
Claim 2, the conduct of
the employees of the second defendant is relevant. I have set out
Qhojeng’s handling of this matter
and, in my view, although he
appears not to have actively and objectively applied his mind to the
evidence in the docket, and relied
on Maloka’s advice, his
subjective view did not play a part in prolonging the matter. In
accordance with the directives relevant
to his post, the District
Court refers the matter to the Regional Court for a decision as to
whether the prosecution of the plaintiff
would continue. This was
done, as I have indicated, without any undue delay.
[38]
While courts may be
reluctant to limit or interfere with the legitimate exercise of
prosecutorial authority, the discretion of prosecuting
authority to
prosecute is not immune from the intervention of the court where such
a discretion is improperly exercised. In view
of what I have set out
in this regard, the interference of this court in the discretion to
prosecute or the exercise of prosecutorial
authority in this matter
is not warranted. In my view, the plaintiff has not proved the
essential element of malice on the part
of the prosecuting authority,
and Claim 2 must, accordingly fail.
QUANTUM
[39]
The award of damages in cases such as this, lies in the discretion of
the court, which discretion must be
exercised reasonably and fairly,
especially as such damages cannot be calculated in accordance with
any formula or with mathematical
precision. While it may be useful to
consider awards made in previous comparable cases, the circumstances
and merits of each case
must be considered when an award for damages
is made. Our courts have repeatedly pronounced upon the determination
of appropriate
awards of damages. In
Minister of Safety and
Security v Seymour 2006(6) SA 320 (SCA)
, the court held at paras
17 and 20
:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate but they have no higher value
than that”.
and
“
Money
can never be more than a crude
solatium
for
the deprivation of what, in truth, can never be restored and there is
no empirical measure for the loss. The awards I
have referred to
reflect no discernible pattern other than that our courts are
not extravagant in compensating the loss. It
needs also to be
kept in mind when making such awards that there are many legitimate
calls upon the public purse to ensure that
other rights that are no
less important also receive protection.”
[40]
Our courts have emphasised that the interests of both parties must be
fairly balanced and the award for damages
must always be commensurate
with the harm suffered. The Supreme Court of Appeal (SCA) had this to
say in
Minister of Safety and Security v Tyulu 2009(5) SA 85 (SCA)
at para 26:
“
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore
crucial that
serious attempts be made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our
courts should be
astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal
liberty and the
seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law. I readily concede
that it is impossible
to determine an award of damages for this kind of
injuria
with
any kind of mathematical accuracy. Although it is always helpful to
have regard to awards made in previous cases to serve
as a guide,
such an approach if slavishly followed can prove to be treacherous.”
[41]
The parties led no specific evidence in respect of the quantum of
damages. The plaintiff, in the course of
delivering his oral evidence
in court, placed his personal circumstances on record and the
consequences he suffered as a result
of being incarcerated in this
matter. He was 41 years old at the time of testifying at the trial in
this matter in February 2023
and would have been approximately thirty
seven (37) years old at the time of his arrest in 2019. No details
were given of his educational
qualifications. He was married and had
two children, aged 11 years and 1 year respectively. He was
self-employed as a motor mechanic
but lost all his customers when he
was in prison. He tried his hand at scholar transport but that only
worked for a month, after
which parents did not allow their children
to travel with him. He was unemployed since then but no details are
given of the reason
for this or what attempts he made to secure
employment. No details were provided as to what exactly his income
was at the time
of his arrest.
[42]
With regard to his detention, he spent two nights at the Makwane
police station in conditions that I have
described earlier, before
being moved to the Harrismith Correctional Facility after his first
appearance in court, where he was
detained for approximately a month
before being released on bail. It is alleged that he thereafter made
three appearances in court
over a period of two months before the
prosecution decided not to proceed with the prosecution and withdrew
the charge against
him. I have set out the deplorable conditions that
he had to endure at the Makwane police station., and the rigours of
life in
prison. He described how the gangs in prison arm themselves
with weapons made from cutlery and other items they could access.
There
was a constant threat of being stabbed or killed. He also had
to endure the consumption of drugs by inmates, which added to his

stress and trauma.
[43]
With regard to the withdrawal of the charge against him, he testified
that he felt heartsore, because he
wanted the matter to go to trial
so that the truth will be known and he would not be regarded as a bad
person by the community.
Before his arrest, people were friendly to
him, but upon his return from custody, they had changed. If he had a
disagreement with
anyone, they would say he is a rapist, hence he
wanted his name to be cleared. Other adverse consequences of his
being in prison
for a month is that one of his friends used his
vehicle and damaged it. His nephew who was taking care of his house
appropriated
his clothes and was wearing those clothes when he
returned home from prison. I pause to mention that the plaintiff was
very emotional
and cried when talking about the complainant, whom he
regarded as his daughter. He broke down again when describing the
effects
of his incarceration on his life.
[44]
The plaintiff referred to a number of cases on the aspect of quantum
of damages awarded by our courts, one
of which was the matter of
De
Klerk v Minister of Police 201892) SACR 28 (SCA) and 202(1) SACR 1
(CC),
where the Constitutional Court (CC) agreed with the
dissenting judgment of the SCA in which the court found that the
police could
be held liable for the entire period of the claimant’s
detention, including the period of detention after his first
appearance
in court. The CC agreed that an amount of R300 000.00
for approximately 7 days’ detention was appropriate.
[45]
I was also referred to the matter of
Mkwati v Minister of Police
2018 JDR 0021 (ECM)
, where the plaintiff was detained for 32 days
and was awarded damages in the amount of R560 000.00. Although,
it was submitted
on behalf of the plaintiff in this matter that
damages in an amount between R550 000.00 and R650 000.00
should be awarded
in respect of unlawful arrest and detention, Mr
Zietsman conceded that an amount of R400 000.00,  was
claimed in the
summons, and it was not expected of the court to make
an award in a higher amount . I take into account that the plaintiff
is now
deceased and that any award made in his favour will, in
reality, not provide
solatium
to him, but will represent a
claim in favour of his estate. No evidence was placed before this
court with regard to any claims
against the plaintiff’s estate,
and this court must guard against making an award that will amount to
largesse or an award
that will no longer serve the purpose it was
intended to serve. Mr Zietsman made submissions in respect of the
quantum for malicious
prosecution, but it is not necessary to deal
with that in view of my finding that Claim 2 must fail.
[46]
There was also no evidence placed before this court of any serious
physical or medical sequelae to the plaintiff
as a result of his
arrest and detention. It can be accepted that he was traumatised by
his arrest, and subsequent incarceration
at Makwane police station
and at the Harrismith Correctional Facility. It follows that his
freedom was severely curtailed. It appears
that he was not unscathed
by the conditions and circumstances under which he was detained, and
which I detailed earlier. He suffered
emotional distress, was
humiliated and degraded. It can therefore, be accepted that the
conduct and actions of the employees of
the first defendant caused
the plaintiff to suffer damages as a result of the
contumelia
and emotional stress, to which he was subjected.
[47]
It was submitted on behalf of the first defendant that in the event
of the court finding that the arrest
of the plaintiff was unlawful,
it should be held liable for damages only for the period 14 April to
16 April 2019. In view of my
finding that the first respondent should
be held liable for the entire period of the plaintiff’s
incarceration, up to the
time he was released on bail, the proposals
by the first respondent in respect of quantum are inappropriate and
will be disregarded.
In
Seymour
, referred to above, an award
of R90 000.000 was made for five days’ detention; in S
eria
v Minister of Safety and Security 2005(5) SA 130 (C),
R50 000.00
was awarded
in respect of an architect who was detained
overnight.
[48]
On a conspectus of all the evidence, and after considering all the
circumstances of this matter, which I
have detailed, I am of the view
that the plaintiff is entitled to be compensated for the damages he
suffered in respect of Claim
1 in the amount listed in the order that
follows hereafter. With regard to costs, the plaintiff requested the
court to order that
costs of travel and accommodation in respect of
the plaintiff’s legal representatives be paid. These are
matters to be raised
with the Taxing Master and proved to be
reasonable and necessary. The Taxing Master has the discretion to
allow such costs. An
order by this court in those terms would
unnecessarily fetter the discretion of the Taxing Master.
[49]
In the circumstances, I make the following order:
49.1   The
first defendant is directed to pay to the plaintiff, the amount of
Three Hundred Thousand Rand (R300 000)
in respect of the
plaintiff’s claim for unlawful arrest and detention (Claim 1);
49.2 Interest is to be
paid on the said amount from date of summons to date of payment;
49.3   The
first defendant is directed to pay the plaintiff’s costs on a
party and party scale, such costs to include
all costs previously
reserved.
49.4   The
plaintiff’s claim in respect of malicious prosecution (Claim 2)
is dismissed, with no order as to costs
in respect thereof.
S.
NAIDOO, J
On
behalf of Plaintiff:
Adv.
C Zietsman
Instructed
by:
Loubser
Van Wyk Inc
c/o
Jacobs Fourie Inc
158
Zastron Street
Westdene
Bloemfontein
(Ref:P
Venter/Lou7/0041)
On
behalf of Defendant:
Adv
PG Chaka
Instructed
by:
Office
of the State Attorney
11
th
Floor Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:JH
Engelbrecht/66/202100141/P6R)