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2023
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[2023] ZAFSHC 7
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Delport v Minister of Police of the Republic of South Africa and Others (927/2015) [2023] ZAFSHC 7 (27 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 927/2015
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MORNE
GRANT DELPORT
Plaintiff
and
THE
MINISTER OF POLICE OF THE REPUBLIC OF
SOUTH
AFRICA
1
st
Defendant
EMBRENDSCHIA
BUTLER
2
nd
Defendant
NATIONAL
PROSECUTING AUTHORITY OF
SOUTH
AFRICA
3
rd
Defendant
HEARD
ON:
07 SEPTEMBER 2022
CORAM:
MATHEBULA,
J
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 27 JANUARY 2023.
The date and time for hand-down is deemed to be 27 JANUARY 2023 at
10H30.
[1]
The plaintiff claims damages against the defendants for malicious
prosecution. This
action is a sequel to his arrest and subsequent
prosecution on fraud, common assault and assault with intent to do
grievous bodily
harm charges. His legal woes lasted a lengthy period
of five (5) years to come to finality. On 6 June 2013 the learned
District
Magistrate Nikamanzi acquitted him and made scathing remarks
that the third defendant had “decimally failed to prove the
guilt of the accused beyond reasonable doubt on both count 1, 2, 3
and 4”.
[1]
This appears to
be a typo error and I presume he meant “dismally”.
Reading the record in context, he found the evidence
presented before
him on behalf of the State being of poor quality to sustain a
conviction.
[2]
The four requirements that must be alleged and proved by the
plaintiff in a claim
of this nature are trite.
[2]
In this particular matter two questions require determination.
Whether the third defendant acted without reasonable and probable
cause; and whether the third defendant acted with malice. The other
two are common cause and need not be proved. It is also common
cause
that all officials involved in decision-making were acting within the
cause and scope of their employment at all material
times.
[3]
The plaintiff is forty-nine (49) years old and married with one (1)
child. His current
rank is that of a Warrant Officer attached to the
Vispol Division of the South African Police Service. He has been a
policeman
for a period of thirty (30) years. At the moment he is
responsible for the investigation of firearms, police clearances and
filing
of reports in such matters.
[4]
The core facts that formed the
basis of his claims are as follows. The plaintiff stood
trial on one
(1) charge of common assault, two (2) charges of assault with intent
to do grievous bodily harm and one (1) charge
of fraud in the
Magistrate’s Court, Bloemfontein. It was alleged that the
offences occurred on 8 and 15 November 2008 as
well as 23 April 2009.
The common thread on charges involving physical violence is that he
assaulted one Mr Pierre Wilbers, Mrs
Cornelia and Mr Marius Olivier
with fists displaying pure intention to injure them. Evidence to
sustain these charges was in the
form of sworn affidavits deposed to
by the complainants. It is the lack of particularity and
contradictions therein that the plaintiff
alleges that his
prosecution was tainted with malice and was from the beginning devoid
of reasonable and probable cause.
[5]
Before turning to the evidence in the assault charges and decision to
prosecute, it
is necessary to deal with the charge pertaining to
fraud. The plaintiff was involved in a motor collision with the
daughter of
the complainant Mrs Cornelia Olivier. He pursued a claim
to recover damages in the Small Claims Court, Bloemfontein. The main
allegations
were that the plaintiff in an effort to prove damages to
his motor vehicle handed quotations from AAA Panel-beaters for
R11,402.39
and R10,964.92 respectively. On the strength of these
documents, the Commissioner of the Small Claims Court granted
judgment of
R7,000.00 in his favour. The turning point is that the
plaintiff patently knew that the total damages he suffered amounted
to R9.01.
Therefore, he committed fraud in the circumstances.
[6]
Of the four charges levelled against the plaintiff, the fraud charge
is the most bizarre.
The charge was put to him and he was asked to
plead to it. The prosecution did not lead even a morsel of evidence
to prove it.
The learned District Magistrate dealt with it in one
sentence and found no need to dwell into it. It was a total
capitulation on
the part of the third defendant when it comes to this
charge.
[7]
I now turn to the events surrounding the assault charges which
prompted the decision
to charge him.
[3]
Prior to the commencement of the trial, Mr P. Wilbers had already
deposed to the withdrawal statement that he does not wish to
continue
with his case against the plaintiff.
[4]
The third defendant represented by Advocate S. Giorgi declined to
accept it. Instead he was forced and coaxed to continue with
the
matter much to his chagrin. The reason advanced by her for denying Mr
P. Wilbers his wishes was to truncate what she perceived
to be a
pattern. This can hardly be considered to be a fair and just reason
to prosecute.
[8]
The prosecution against him on other charges was equally problematic.
The plaintiff
was charged of the assault of mother and son pair of
Mrs Cornelia and Mr Marius Olivier. The two (2) deposed to the
affidavits
about the events of 8 November 2008 on 15 December 2008.
They recounted how the plaintiff assaulted them with fists and even
cracked
the jaws of Mrs Cornelia Olivier.
[9]
There were also other statements deposed to by independent witnesses
which disavowed
the allegations made by the complainants. In his
statement Mr David Eduard Oosthuizen made it pertinently clear that
the policeman
(referring to the plaintiff) did not assault the young
man (Marius Olivier). This is contained in his statement dated 22
December
2008. Mrs Leana Vorster also made a statement about her
conversation with Mrs Cornelia Olivier. The latter confirmed to her
that
the plaintiff is not the one who broke her jaw. Her statement
was commissioned on 10 December 2010. All these statements were at
all material times part of the dockets. There can be no talk that
different prosecutors were unaware of them.
[10]
Despite the third defendant being in possession of these statements,
the deponents were not called
as witnesses. There is no cogent
reason(s) advanced why the State proceeded with the trial in that
manner. Neither was there a
reconsideration of continued prosecution
which faced a monumental setback at that stage. Clearly there was no
prima facie
evidence upon which prosecution would be
justified. The main allegations which formed the case against him
were already disavowed
by other witnesses. This aspect was correctly
conceded by Advocate S. Giorgi that there was an obligation on the
prosecutor to
refer the matter back to her for reconsideration. The
clearest example of them all was the statement of Mrs Lize Drake that
she
did not see any assault.
[11]
The decision and responsibility to institute criminal proceedings on
behalf of the State is vested
on the third defendant. This makes the
role of a prosecutor an important one in the quest to administer
equal justice in accordance
with the prescripts of the Constitution
of the Republic. In a recent decision, the Supreme Court of Appeal
buttressed this point
in the following manner: -
“
Prosecutors
play a critical role in the criminal justice system in response to
crime. They generally represent the authority of
the State in
ensuring that perpetrators of crime are held accountable for their
actions and in that way communicate a strong message
to the community
that crime will not be tolerated. In line with the burden of proof
that rests on their shoulders, it is essential
that they meticulously
ensure that the matters that they bring before courts have been
properly investigated and when that has
been done, ensure that the
evidence is properly presented in court. Sadly, what follows is a
model of the very opposite and depicts
a picture of a matter that was
badly investigated and badly prosecuted”.
[5]
[12]
Prosecutors do not operate in a vacuum in the exercise of the powers
vested in them by the law.
One of the important tools in the
decision-making process is the Prosecution Policy which tabulates the
factors to be considered
when evaluating evidence. It is the case for
the defendants that the third defendant followed it to the latter.
The point raised
is that there is a difference between the decision
to prosecute and the manner the trial was conducted. The argument is
that there
was no malice in taking the decision because it was done
according to the prescripts of the law.
[13]
Prosecutors are expected to be conscientious in the manner that they
approach their task. Primarily
because their actions may pose a
serious encroachment on the civil liberties of those who are
subjected to court proceedings which
should not be. Given the
important role they play, they must also inspire confidence in the
criminal legal system. They need to
act above board without bias,
with an independent mind and fearless commitment to the cause of
justice. It will be plain wrong
to proceed with a matter in order to
appease a nagging complainant against what the courts have repeatedly
stated about their role.
The same can be said where the prosecutor
considers irrelevant issues in his/her decision whether to prosecute
or not.
[14]
It was submitted on behalf of the plaintiff that the decision to
prosecute did not measure up
to the test found in
Beckenstater v
Rottcher and Theunissen
. The court explained the test in the
following terms: -
“
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”.
[6]
[15]
It is a cornerstone principle of our legal system that a prosecutor
must not act arbitrarily,
he/she must instead always act in the
interests of the community. The court has emphasized the perception
and knowledge that prosecutors
should possess before proceeding to
prosecute.
[7]
In her oral
evidence, Advocate Giorgi stated that she took the decision to
prosecute in order to arrest a particular pattern. This
is a flimsy
and illogical reasoning. Even if one has good intentions to stem the
tide against certain acts of criminality, it does
not mean the
principles underpinning such prosecution must be forsaken. The test
is the existence not only of a
prima
facie
case
but that there is a reasonable and probable cause to prosecute. The
J88 on Mr Marius Olivier did not show any injuries. There
was no
medical evidence to be considered by the learned District Magistrate.
On the evidence that was available, it was apparent
that it did not
meet the threshold of the test. The case against him was a
non-starter.
[16]
Even before the trial commenced, there were contradictory statements
in the dockets which negated
prosecution. She conceded that even if
she did not gain sight of the same, her colleague should have
referred the matter to her
in changed circumstances.
[17]
The other piece of evidence that stood out is the manner in which a
witness was forced to testify.
It is self-evident that Mr P. Wilbers
signed a withdrawal statement. This was deemed unacceptable and he
was told in no uncertain
terms that he must present himself before
court. There are no reasons given to him why his withdrawal statement
was declined. It
is not enough to simply hold the position that it is
the prerogative of the third defendant to prosecute or not. Such a
stance
is irrational if other factors are not considered at all. The
evidence of Advocate S. Giorgi that she did not know the plaintiff
does not take the matter any further on this point. Surely there must
have been a name attached to the pattern she wanted to turn
around.
This lends credence to the existence of malice on the part of the
prosecution. Not only was the intention there but also
consciousness
of wrongfulness existed.
[18]
That the prosecution proceeded in a way oblivious of the set
requirement, is also found in the
manner the fraud charge was
handled. It was a monumental failure. No evidence was led and it
cannot be said that she was not aware
of the inherent weaknesses in
their case. Regardless they proceeded with the unmeritorious charges.
[19]
It is my considered opinion that the plaintiff has proved his case on
balance of probabilities
against the third defendant.
[20]
This brings me to the issue of the appropriate quantum to be awarded.
Strangely the legal team
of the defendants did not deal to any
significant extent with the issue of quantum for damages. Perhaps
they were so certain about
their case that they deemed it unnecessary
to dwell in the issue that is not worth it. The criminal proceedings
took a long time
before they could be finalised. There can be no
doubt that the plaintiff was subjected to prolonged period of
uncertainty and stress.
According to the medico-legal reports filed,
which are uncontested, he suffers from depression, chronic
post-traumatic stress disorder
and anxiety.
[21]
The onus rests on the plaintiff to prove quantum as well. The
approach in determining the appropriate
award is a flexible one and
not adherence to strict rules. In matters of this nature, I must
apply my discretion guided by the
principles of law considering broad
generalisations and what I consider fair in the circumstances.
Counsel for the plaintiff referred
me to a long list of comparative
cases to serve as a baseline. The cases relied upon do not have
similar facts to the matter on
hand.
[22]
The submission made is that the appropriate award should be the sum
of R500,000.00. The sole
fact relied on seems to be the severity of
the failed prosecution on his career and personal life. The main
point is that all this
is undisputed. I agree with the submissions
advanced on behalf of the plaintiff. The counsel for the defendants
was steadfast on
the point that the claim must be dismissed. He made
no meaningful contribution on this aspect. My view is that the amount
of R400,000.00
with costs will be a fair and reasonable award given
the circumstances. I also took into consideration the fact that other
legs
of the claim were jettisoned and no longer pursued.
[23]
There seems to be no reason to depart from the general principle.
Costs must follow the outcome
in this matter.
[24]
The following order is made: -
24.1. Judgment in favour
of the plaintiff against the third defendant in the sum of
R400.000.00 with interest thereon at the applicable
rate from the
date of this judgment to date of payment.
24.2. Costs of suit on a
party and party scale.
M.A.
MATHEBULA, J
On
behalf of the Plaintiff:
Adv. H.E. De La Rey
Instructed
by:
Peyper Botha Attorneys
BLOEMFONTEIN
On
behalf of the defendants:
Adv. L Bomela
Instructed
by:
State Attorney
BLOEMFONTEIN
\TKwapa
[1]
Page
325 of the Paginated Papers.
[2]
Minister
of Justice and Constitutional Development and Others v Moleko
2008
(3) All SA 47
(SCA) at para 8.
[3]
Page
47(a) and (b) of the Paginated Papers.
[4]
Page
63 of the Paginated Papers.
[5]
Zwelithini Maxwell Zondi v The State (1232/2021
[2022] ZASCA 173
(7
Novemver 2022) at para 1. See also: Makhetha v Minister of Police
and Another
2020 ZAFSHC 207
; Patel v National Director of Public
Prosecutions and Others 2018 (2) SACR 420 (KZD).
[6]
1955 (1) SA 129
(A) at 136A-B.
[7]
Patel
v National Director of Public Prosecutions and Others
supra
.