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[2023] ZAFSHC 122
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Ditsele and Others v Minister Of Police and Another (805/2019) [2023] ZAFSHC 122 (21 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
CASE NO.: 805/2019
Reportable: yes/no
Circulate to other
Judges: yes/no
Circulate to
Magistrates: yes/no
In the matter between:
EDWARD
DITSELE
First
Applicant
FREDDY
SELLO MOHLALA
Second
Applicant
TSHEPO
HOPE MASHAMAITE
Third
Applicant
and
THE
MINISTER OF POLICE
First
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Second
Respondent
As
consolidated with:
CASE
NO.: 3131/2019
In
the matter between:
ANDREW
THAPELO HESIE
Applicant
and
THE
MINISTER OF POLICE
First
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Second
Respondent
Coram:
Opperman,
J
Hearing:
14
April 2023
Delivered:
21
April 2023. The judgment was handed down electronically by
circulation to the parties’ legal representatives by email and
release to SAFLII on 21 April 2023. The date and time for hand-down
is deemed to be 21 April 2023 at 15h00
Judgment:
Opperman, J
Summary:
Application
for leave to appeal – civil trial – claims for illegal
arrest in terms of
section 40
of the
Criminal Procedure Act 51 of
1977
and malicious prosecution by the State
Order:
21 April 2023
1.
The applications for leave to appeal are
dismissed in regard to all the applicants and in total.
2.
The applicants to carry the costs of the
applications for leave to appeal.
JUDGMENT
APPLICATION
FOR LEAVE TO APPEAL
INTRODUCTION
[1]
The judgment
a
quo
was introduced with emphasis of
the fact that our legal system sets great store by the liberty of an
individual. The decision to
arrest must be reasonable and rational.
In addition; that our
constitutional
reality is the same when prosecution is instituted in a criminal
court of law. Liberty is not only physical freedom;
it is to be free
and protected from malignant, harmful and defamatory persecution. It
is the atmosphere in which this application
will also be adjudicated.
[2]
The
application for leave to appeal is ostensibly
[1]
based on the notion that the applicants were illegally arrested and
prosecuted on the facts of the case; this should have been
the
finding of the court
a
quo
.
[3]
During the oral argument for leave to appeal counsel for the
applicants conceded that
there is not any evidence before court as to
the factors that existed on which the senior of Ms. Smith (the
prosecutor that conducted
the trial on behalf of the second
respondent) instructed her to proceed with prosecution. The
respondents carried the onus to show
the malice in the decision to
prosecute; they did not adduce any evidence except for the version of
Ms Smith that she was instructed
to proceed. This only leaves the
issue of arrest. I will nonetheless address the issue of prosecution
as well.
[4]
It is imperative that the principles applicable for successful
prosecution, conviction
and the admissibility of evidence during
trial are not conflated or confused with the principles that prevail
when arrest is brought
about.
[5]
If the police may not arrest on the facts that prevailed in this
case, that are common
cause and on occasion undisputed; then law and
order will fail. These are the facts:
1.
The four
plaintiffs
[2]
were found in possession of thousands of rands worth of alcohol at a
Sechaba Chisa Nyama, a popular drinking and party venue in
Bloemfontein.
2.
The place was packed with people and it was even more so because of
the
Macufe Festival that was on that weekend when the plaintiffs were
there and before their arrest.
3.
The alcohol was on the back of a bakkie whereupon the plaintiffs were
sitting
with the flap open. This, according to the testimony of
Hesie, the fourth plaintiff in the trial, and the evidence of the
arresting
officers; Moloi and Haarmeier. Hesie testified that they
sat on the back of the vehicle at Sechaba. The wind and rain caused
them
to move into the cabin of the bakkie.
4.
Three of the plaintiffs came from Soweto and one of the plaintiffs
was
from Bloemfontein. The alcohol belonged to two of the plaintiffs;
the one a tavern owner and the other a whiskey collector. They
produced receipts on different occasions to prove their ownership but
it did not take the alleged sale of the liquor any further.
It proved
their ownership.
5.
The version of the plaintiffs on why they brought the copious amount
of
alcohol to Bloemfontein is vague. The one version is that they
were going to meet some more friends and intended to distribute it
among them. The other is that it was for a family gathering. It is
improbable that the two plaintiffs were going to hand out the
valuable and substantial amount of alcohol free of charge;
specifically, the expensive alcohol such as the whiskey. In addition
to the alcohol, a substantial number of drinking glasses were on the
bakkie.
6.
The bakkie, a double cab Volkswagen Amarok, belonged to Mashamaite,
the
third plaintiff.
7.
Strangely and against the version of the plaintiffs that they did not
engage
in any retail or sale of the liquor; it is an undisputed fact
that a cash float was found in the cabin of the bakkie. It is, among
others, depicted on page 114 of Exhibit A in a photo taken by the
police. It consisted of:
14x R10.00 notes,
R345.00 worth of R5.00
coins,
1x torn in half R10.00
note,
3x R100.00 notes,
8x R20.00 notes,
4x R200.00 notes,
6x
R50.00 notes,
there were some torn R20.00 notes also
confiscated.
8.
The inventory of the alcohol is the following:
18x Smirnoff 1818 Citrus
Flavour 750ml bottles,
12x Smirnoff 1818
Original 750ml bottles,
10x SKYY Vodka 750ml
bottles,
12x Absolute Vodka 750ml
bottles,
12x Singleton Whiskey
750ml bottles,
12x Amarula 750ml
bottles,
12x Henessy Cognac 750ml
bottles,
7x Krone Borealis Vintage
750ml bottles,
2x Courvoisier Cognac
750ml bottles,
1x Remy Martin Cognac
750ml bottle,
1x J & B 12 years
Whiskey 750ml bottle,
1x Johnnie Walker Blue
Label 750ml bottle,
1x Glenfiddich 15 years
old Whiskey 750ml bottle,
1x Glenfiddich 18 years
old Whiskey 750ml bottle,
1x box with 12 Johnny
Walker drinking glasses and 9 Bell’s drinking glasses,
25 white and 46 coloured
drinking glasses.
9.
The cash slips entered into evidence by agreement between the parties
show
alcohol to the value of R1299.00, R4299.35 and R12391.60.
(Exhibit M)
10.
Hesie testified that he saw the “hawkers’ bag”
depicted at page 107 of
the photo album Exhibit A (the “Blue
Everest” bag wherein the dagga was found), with the alcohol on
the back of the
bakkie at the time he joined the other three
plaintiffs at Sechaba.
11.
In the meanwhile, Moloi, a police official in the South African
Police Service received
a call at 12pm, on the day of the arrest,
from an informant that liquor was sold from the bakkie of the
plaintiffs.
12.
The informant has become deceased before this trial commenced. In
terms of the Biyela -
case hearsay evidence is admissible for the
arrestor to form a reasonable suspicion. Moloi also did not want to
disclose the identity
of the informant to the prosecutor; this to
protect the informant.
13.
Moloi immediately requested the Crime Intelligence Unit (CIU) to put
the bakkie at Sechaba
under surveillance. The information from them
was that it seemed as if there was liquor being sold from the
vehicle. He accepted
the suspicion and observations of the
unidentified member of the CIU unit and acted according to that
information.
14.
The CIU unit of the police were not willing to expose the identity of
the undercover agent
or let her testify in the trial. This was to
protect her safety and their projects.
15.
Moloi compared the information from the informant to that of the
undercover unit and it
was similar. They observed the plaintiffs
sitting on the back of the bakkie with the alcohol. He called “10111”
for
backup and they converged on the scene.
16.
There were approximately 7 police officers. It was around 16h00. It
is the evidence of both
Moloi and Haarmeier that the back flap of the
bakkie was open, the alcohol displayed and the plaintiffs were seated
on the back.
This is disputed by the plaintiffs but was the evidence
on which the prosecuting authority had to make their decision and the
veracity
of which had to be tested in court.
17.
The bakkie was indeed loaded with alcohol and a later search produced
dagga, money in different
denominations and some torn notes, and
drinking glasses.
18.
One of the police officers on the scene indicated that the situation
at Sechaba were becoming
volatile. There were many people gathering
around the scene and for the safety of everybody; the public, police
and plaintiffs
they decided to move the plaintiffs and the vehicle to
the police station. It is also known protocol among police that
suspects
must be cuffed for their own safety and that of the police
when taken into custody.
19.
The police officers testified that there is a difference between
taking a person into custody
and arresting the person. They did not
arrest the plaintiffs there and then because they wanted to search
the bakkie and make further
inquiries. They did not arrest on a whim
but took care to gather information.
20.
At the police station the female officer located dagga packed in
“bankies” in
the bakkie. The officer testified that in
her many years of experience with the arrest of perpetrators for
dagga she came to know
that “bankies” are used for the
sale of dagga. This elevated the suspicion of illegal activities by
the plaintiffs.
Crucial is that not one of the plaintiffs wanted to
declare to whom the bag belongs that the dagga was found in. At the
time of
the arrest and when the decision was taken to prosecute this
issue was unexplained.
21.
The search of the bakkie occurred with the permission of the owner
and in his presence.
22.
The dagga was later weighted in the presence of Mashamaite and it was
found to be 96 grams.
He personally signed the “Dagga
Certificate” on 8 October 2016 (Exhibit B).
23.
The plaintiffs were arrested and their constitutional rights were
explained and certificates
in terms of section 35 of the Constitution
were handed to them which they signed. (Exhibits C, D, E and G)
24.
It is common cause that the plaintiffs were incarcerated until their
first appearance and
that the conditions in the police cells were not
good. They were traumatised by the experience. The plaintiffs were
detained from
the 8
th
of October 2016 until the 11
th
of October 2016, whereafter they were granted bail of R400.00. The
48-hour incarceration limit was adhered to.
25.
Counsel for the defendants is correct where he pointed out in their
heads of argument that
Mashamaite stated during cross examination in
the trial:
15.1.26.
When defendant’s version put to him(sic), he stated that he
understands the position the police
took. He further stated it is the
job of the police to do law and order.
15.1.27.
When the process of arrest, investigation and prosecution was put to
him he agreed with it.
15.1.28.
He signed the dagga certificate and gave the alcohol slips to Cst
Raboroko.
26.
He is also correct that Mohlala made the same concession that the
police must do their work:
In re-examination he
testified the following:
25.1.
He understands that the police should investigate and they were
supposed to arrest him to investigate
a suspect.
27.
It is common cause, as the plaintiffs pleaded and testified, that
they were detained until
11 October 2016, when they were released on
bail. Plaintiffs pleaded that they were prosecuted until 16 March
2017.
28.
The evidence is that the Court struck the matter from the roll due to
unreasonable delays.
According to the evidence recorded the witnesses
were not at court. Numerous appearances occurred. It is incorrect
that the prosecutor
withdrew the charges on 16 March 2017. The J15
Charge Sheet (Exhibit T) indicates the matter was struck from the
roll.
29.
The plaintiffs were summoned to again appear in Court on 13 July
2017. This, on account
of the second defendant’s decision to
re-institute prosecution. After five more appearances, the plaintiffs
were discharged
on 6 December 2017 in terms of
Section 174
of the
Criminal Procedure Act, 51 of 1977
.
30.
The prosecutor that testified did not want to continue with
prosecution but her senior instructed
prosecution after they
re-evaluated the evidence. They have a statutory right and obligation
to do so. The reason for the prosecutor’s
hesitance to
prosecute is that there were no eyewitnesses to the crimes.
31.
None of the witnesses for the defendants witnessed the sale of liquor
or dagga.
32.
The plaintiffs did not possess a licence to deal in liquor and could,
consequently, not
produce one at the scene or when they were formally
arrested or during the trial.
33.
The legal process of arrest and detention was complied with.
34.
The plaintiffs were represented by Legal Aid: South Africa and later
by privately mandated
counsel.
35.
The statements of Captain Haarmeier, Sergeant Moloi and Constable
Raboroko depict a
prima facie
case. Their evidence during the
trial
in casu
caused
a prima facie
case for arrest. If
they did not act, they might have been accused of neglecting their
duties in the circumstances of the case.
36.
The dagga was found in the bakkie and the four plaintiffs arrested in
the bakkie was
prima facie
in possession of the dagga. They
denied knowledge of the dagga and the evidence had to be tested by
way of a trial. It is not probable
that not one of the plaintiffs had
knowledge of the dagga. It would not have been prudent for a
Prosecuting Authority to accept
the word of the accused in the
circumstances of the case and without a trial.
37.
The sale or not of the liquor also had to be tried and tested by way
of a criminal trial.
The word of the plaintiffs could not just be
accepted in the face of the amount of liquor, the dagga, the
circumstances prevailing
at the scene, the drinking glasses and money
float that were indicative of distribution of the alcohol, the
information of the
informer, the information from the Central
Intelligence Unit and the nonsensical denial of the knowledge of the
dagga.
38.
The one plaintiff was a tavern owner and it was his business to sell
liquor. The likelihood
that the owners of the liquor will give
thousands of rands worth of liquor away free of charge seems highly
improbable and implausible.
The plaintiff kept the fact that he was a
tavern owner from the police.
39.
Vital is the pleadings of the first defendant dated 23 September 2019
in the case with which
the prosecuting authority went on trial and
represented the case against all the plaintiffs.
AD PARAGRAPH 8.1
7.1 The contents
hereof is denied. The plaintiffs were requested to accompany the
police officers to the nearest police station,
being the Mangaung
Police Station, as it was too risky and dangerous to conduct a search
of the plaintiff’s co-accused’s
vehicle where it was
parked.
7.2 The plaintiffs
were not placed under arrest at the scene, but were placed under
arrest once a thorough search of the
vehicle, with the consent of the
plaintiff’s co-accused, was conducted. Dagga and copious
amounts of alcohol were found in
the plaintiff’s co-accused’s
vehicle.
7.3 the
plaintiff’s co-accused admitted that the vehicle with
registration number DZ[....] belonged to him and, after
the voluntary
search was conducted, the plaintiff’s co-accused admitted that
the bag in which the dagga was found was his.
He thereafter signed a
certificate acknowledging that the dagga was weighed in front of him
and that it was 96 grams.
7.4 One of the
plaintiff’s co-accused admitted to selling of the liquor
without a license.
7.5 The plaintiff
and his co-accused acted with common purpose in that they all had a
hand in the illegal sale of liquor
and dagga.
40.
The judgment of the Court
a quo
that caused the finding in
terms of
section 174
of the
Criminal Procedure Act was
not placed
before this Court. The reason(s) for the finding was depicted in the
entrance by the prosecutor in the diary of the
docket and addressed
to the investigating officer (Exhibit L in this case).
2017/12/6
IO
174 on both counts for al
4 Accused.
Reasons
1.
SN1 Mr. Moloi conceded that he did not see the exchange.
2.
There were a lot of people around that had interaction with the
bakkie.
3.
Conceded that for it could be for own (sic); we arrested him solely
due to the fact that
accused made admissions, but this was not in his
statement.
4.
Court found trial (sic) there was no evidence on which to convict ito
the dealing in liquor
case.
5.
Possession of dagga
·
Could not prove anyone had control due to the fact that witnesses
conceded
that a lot of people were there and only assumes it belonged
to the accused and was on the bakkie.
·
Capt Haarmeyer was consulted for the trial but her version was also
different
from that of the first witness & different from which
she wrote in her statement. She would not have assisted the state’s
case.
·
Other eye witnesses were not provided to state to aid the case even
though
such was requested. Matter was finalised.
41.
To issue summonses or notices on 8 October 2016 would have been risky
because three of the
plaintiffs resided in Soweto and their addresses
were not confirmed. One of the plaintiffs misrepresented the fact
that he is the
owner of a tavern. The alcohol and dagga seized were
of substantial value and amounts.
42.
To conclude:
In order to prove that the arrest was
lawful, the defendants had to and did prove that:
(i)
the arresting officer
was a peace officer;
(ii)
the arresting officer
entertained a suspicion;
(iii)
that the suspect to
be arrested committed an offence referred to in Schedule 1 (or in
this instance; in terms of
section 40(1)(h)
,
who is reasonably suspected of
committing or of having committed an offence under any law governing
the making, supply, possession
or conveyance of intoxicating liquor
or of dependence-producing drugs
,
…);
(iv)
the suspicion rested on reasonable grounds.
43.
The case against the plaintiffs was not without merit on
paper.
The evidence against the plaintiffs were
legally sufficient to justify prosecution.
THE LAW
[6]
I restate the prevailing law that was depicted
a quo
. In
Biyela v Minister of Police
(1017/2020) [2022] (1 April
2022)
ZASCA 36
noted that the standard of a reasonable suspicion for arrest
is very low.
[34] The standard of a
reasonable suspicion is very low. The reasonable suspicion must be
more than a hunch; it should not be an
unparticularised suspicion. It
must be based on specific and articulable facts or information.
Whether the suspicion was reasonable,
under the prevailing
circumstances, is determined objectively.
[35] What is
required is that the arresting officer must form a reasonable
suspicion that a Schedule 1 offence has been committed
based on
credible and trustworthy information. Whether that information would
later, in a court of law, be found to be inadmissible
is neither here
nor there for the determination of whether the arresting officer at
the time of arrest harboured a reasonable suspicion
that the arrested
person committed a Schedule 1 offence.
[36] The arresting
officer is not obliged to arrest based on a reasonable suspicion
because he or she has a discretion. The discretion
to arrest must be
exercised properly…
[7]
Section 38 of the
Criminal Procedure Act 51 of 1977 (CPA) prescribes the methods of
securing attendance of accused in court:
(1)
Subject to section 4 (2) of the Child
Justice Act, 2008 (Act No. 75 of 2008), the methods of securing
the
attendance of an accused who is eighteen years or older in court for
the purposes of his or her trial shall be arrest, summons,
written
notice and indictment in accordance with the relevant provisions of
this Act. [Sub-s. (1) substituted by s. 4 of Act
No.
42 of 2013.]
[8]
Section 39 of the CPA
prescribes the manner and effect of arrest:
(1)
An arrest shall be
effected with or without a warrant and, unless the person to be
arrested submits to custody, by actually touching
his body or, if the
circumstances so require, by forcibly confining his body.
(2)
The person effecting
an arrest shall, at the time of effecting the arrest or immediately
after effecting the arrest, inform the
arrested person of the cause
of the arrest or, in the case of an arrest effected by virtue of a
warrant, upon demand of the person
arrested hand him a copy of the
warrant.
(3)
The effect of an arrest shall be that the person
arrested shall be in lawful custody and that he shall be detained
in
custody until he is lawfully discharged or released from custody.
[9]
Section 40 of the CPA prescribe arrest without a warrant as is
relevant to this case;
and it is clear that:
40. Arrest by
peace officer without warrant.
(1) A peace
officer may without warrant arrest any person—
(a)
who commits or attempts to commit any offence in his presence;
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule
1, other than the offence of escaping from lawful
custody;
(h) who is
reasonably suspected of committing or of having committed an offence
under any law governing the making,
supply, possession or conveyance
of intoxicating liquor or of dependence-producing drugs or the
possession or disposal of arms
or ammunition; …
[10]
Before now and as far back as on 19 November 2010, Harms JP, Nugent
JA, Lewis JA, Bosielo JA and K
Pillay AJA in the matter of
Minister
of Safety and Security v Sekhoto and Another
2011 (1) SACR 315
(SCA) concluded that
section 40
of the
Criminal Procedure Act 51 of
1977
is not unconstitutional.
[11]
The parameters or “jurisdiction” for a lawful arrest are:
[31]
In order to prove that the arrest was lawful, it must be proven that:
(i)
the arresting officer
was a peace officer;
(ii)
the arresting officer
entertained a suspicion;
(iii)
that
the suspect to be arrested committed an offence referred to in
schedule 1;
[3]
(iv)
the
suspicion rested on reasonable grounds.
[4]
[12]
The Sekhoto - case categorically denounced a fifth jurisdictional
requirement that arrest will be unlawful
if a less invasive option
exists such as summons or written notice:
[21] The four express
jurisdictional facts for a defence based on
s 40(1)(b)
have been
set out earlier, but to repeat the salient wording: 'a peace officer
may without warrant arrest any person whom
he reasonably suspects of
having committed an offence referred to in Schedule 1'. Schedule 1
offences are serious offences.
[22] With all due respect
to the different High Court judgments referred to, applying all the
interpretational skills at my disposal
and taking the words of Langa
CJ in
Hyundai
seriously, I am unable to find
anything in the provision which leads to the conclusion that there
is, somewhere in the words,
a hidden fifth jurisdictional fact. And
because legislation overrides the common law, one cannot change the
meaning of a statute
by developing the common law.
[13]
In defending a claim for unlawful arrest, the four jurisdictional
facts set out in
section 40(1)(b)
or, here also, 40(1)(h) of the
CPA must be pleaded. It was done in the instance as will be pointed
out hereunder.
[14]
The Sekhoto - case ruled that once the required jurisdictional facts
were present the discretion whether
or not to arrest arose. Harms, JP
set some margins; not a
numerus clausus
, to the reasonable
suspicion - discretion:
1.
Peace officers are entitled to exercise this discretion as they
see fit, provided they stayed
within the bounds of rationality.
2.
This standard is not breached because an officer exercised the
discretion in a manner other than
that deemed optimal by the court.
3.
The
standard is not perfection, or even the optimum, judged from the
vantage of hindsight, and, as long as the choice made fell
within the
range of rationality, the standard is not breached.
[5]
4.
It is clear that the power to arrest is to be exercised only for the
purpose of bringing the suspect
to justice; however, the arrest is
but one step in that process.
5.
The arrestee is to be brought to court as soon as reasonably
possible, and the authority to detain
the suspect further is then
within the discretion of the court.
6.
This discretion is subject to a wide-ranging statutory structure
and, if a peace officer were
to be permitted to arrest only when he
or she was satisfied that the suspect might not otherwise attend the
trial, then that statutory
structure would be entirely frustrated. To
suggest that such a constraint upon the power to arrest is to be
found in the statute
by inference is untenable.
7.
The arrestor is not called upon to determine whether or not a suspect
ought to be detained pending
trial; that is for the court to
determine, and the purpose of an arrest is simply to bring the
suspect before court so as to enable
it to make that determination.
8.
The enquiry
to be made by the peace officer is not how best to bring the suspect
to trial, but only whether the case is one in which
that decision
ought properly to be made by the court. The rationality of the
arrestor's decision on that question depended upon
the particular
facts of the case, but it is clear that in cases of serious crimes,
such as those listed in Schedule 1, an arrestor
could seldom be
criticised for arresting a suspect in order to bring him or her
before court.
[6]
[15]
The Biyela
- case confirmed the above and ruled that the evidence or suspicion
considered by the officer
need
not
be based on information that would subsequently be admissible in a
court of law.
[7]
Information regarded by the arresting officer
may
be hearsay evidence.
[16]
Malicious
prosecution is characterized by malice or intend to do harm.
Whether
a prosecution is wrongful or unlawful depends on whether there was a
reasonable and probable cause coupled with the
animus
iniuriandi
of the defendant in instigating, initiating or continuing it.
[8]
[17]
Under Section 179 of the Constitution, 1996
and the
National Prosecuting Authority Act, 1998
, the National
Prosecuting Authority has the power to institute criminal proceedings
on behalf of the State and to carry out any
necessary functions’
incidental to institution of criminal proceedings. Section 179 of the
Constitution places the decision
to prosecute within the sole power
of the Prosecuting Authority.
[18]
The
Directives or Code of Conduct
[9]
promulgated in terms of the National Prosecuting Act, 1998, demand
that prosecutors shall, among others:
1.
Perform their duties fairly, consistently
and expeditiously.
2.
Perform their duties fearlessly and
vigorously in accordance with the highest standards of the legal
profession.
3.
They shall give due consideration to
declining to prosecute, discontinuing criminal proceedings
conditionally or unconditionally
or diverting criminal cases from the
formal justice system; particularly those involving young persons,
with due respect for the
rights of suspects and victims, where such
action is appropriate.
4.
In the institution of criminal proceedings;
proceed when a case is well-founded upon evidence believed to be
reliable and admissible,
and not continue a prosecution in the
absence of such evidence.
5.
They must ensure that, throughout the
course of the proceedings, the case shall be firmly but fairly and
objectively prosecuted.
6.
They must consider the views, legitimate
interests, and possible concerns of victims and witnesses when their
personal interests
are, or might be, affected, and endeavor to ensure
that victims and witnesses are informed of their rights, especially
with reference
to the possibility, if any, of victim compensation and
witness protection.
7.
They shall safeguard the rights of accused
persons, in line with the law and applicable international
instruments as required in
a fair trial.
8.
A prosecutor must examine proposed evidence
to ascertain if it has been lawfully or constitutionally obtained and
shall refuse to
use evidence which is reasonably believed to have
been obtained through recourse to unlawful methods which constitute a
grave violation
of the accused person's human rights and particularly
methods which constitute torture or cruel treatment.
[19]
In
Kubeka v The Minister of Police and Another
(63675/2016)
[2022] ZAGPPHC 298 (4 May 2022) Collis, J ruled and confirmed that:
[30] …
To succeed with a claim for malicious prosecution a claimant must
allege and prove that (i) the defendants
set the law in motion, they
instigated and instituted the proceedings; (ii) they acted without
reasonable and probable cause; (iii)
they acted with malice, and (iv)
the prosecution failed.
[20]
Okpaluba,
[10]
after scrutiny of the South African law, case law and international
principles, emphasized that:
…
the requirement
of reasonable and probable cause plays such a central role in an
action for malicious prosecution that the success
of such an action
depends largely on there being a lack of reasonable and probable
cause for the prosecution among the other three
requirements. The
presence or absence of reasonable and probable cause more or less
dictates whether or not there is any basis
for the prosecution and
leads the way to the inquiry as to whether there was malice or
improper purpose on the part of the prosecutor.
Again, whether or not
the defendant lacked reasonable and probable cause to instigate,
initiate or continue the prosecution depends
ultimately on the facts
and information carefully collected and objectively assessed, on
which the prosecutor based his/her belief
that the plaintiff was
guilty;
it is
not
the probability that those
facts would secure a conviction.
Yet the prosecutor is faced with
the difficulty in that his/her conduct in this regard is subject to
both the subjective and objective
tests. In evaluating the material
that is available to him/her arising from the investigations, the
objective sufficiency of the
material must be considered by the
prosecutor and assessed in the light of all the facts of the
particular case. In effect, his/her
belief must be honestly held and
founded on reasonable grounds, such that would lead a reasonable
person in his/her position to
hold a similar belief. It essentially
requires the plaintiff to establish a negative, rather than for the
defendant to prove the
existence of reasonable and probable cause.
(Accentuation added)
THE
CLAIMS
[21]
The cases of the first three plaintiffs were consolidated with that
of the fourth plaintiff. In this
case the litigation instituted
against the Minister of Police and the National Director of Public
Prosecutions, as per t
he amended claim dated 25
October 2022, is based on the following:
6.
The First and Second
Defendants’ offices and principle place of business are
situated in the jurisdiction of the above-mentioned
Honourable Court.
AD
CLAIM 1 – AD UNLAWFULL ARREST AND DETENTION
7.
7.1 On the 8
th
of October 2016 at Manguang Township the Plaintiffs were wrongfully
and unlawfully arrested by unknown Police members who at the
time of
the arrest was in service of the Manguang SAPS.
7.2 The
aforementioned arrest was effected at Manguang without a Warrant of
Arrest.
8.
8.1 The
Plaintiffs was thereafter transported to the Manguang Police Station
and detained at the instance of the arresting
and investigating
police officers at Manguang SAPS holding cells without a Warrant of
Detention.
8.2 The
Plaintiffs was charged under Manguang Police Case Docket under CAS
111/10/2016 on alleged charges of dealing
in Dagga and dealing of
alcohol without a license.
8.3 On the
11
th
of October 2016 the Plaintiff’s appeared in the
Manguang Magistrate’s Court and was released on bail of R400.00
each.
8.4 The
Plaintiffs was thus detained at the Manguang Police Station holding
cells from the 8
th
of October 2016 until the 11
th
of October 2016.
9.
At all relevant times the
aforesaid members of the First Defendant were acting within the cause
and scope of their employment as
employees of the First Defendant.
10.
The arrest of the
Plaintiff was unlawful in the fact that:
10.1 The members of the
Manguang SAPS respectively did not take into account the Plaintiffs’
rights in terms of article 12
of the Constitution, Act 106 of 1996,
(herein after called “the Constitution”)
10.2 The Plaintiffs was
arbitrarily and without good cause deprived from his freedom.
10.3 That the members of
the Manguang SAPS had no grounds to interfere with the Plaintiff’s
Constitutional rights, by that:
10.3.1 The
Plaintiffs did not pose any risk to the community.
10.3.2 The
Plaintiffs would not have evaded the court hearing.
10.3.3 That
the members of the Manguang SAPS had no grounds to believe that the
Plaintiff would harm himself or any
other person of the public.
10.3.4 That
the Plaintiffs was in condition and/or had the will to refute the
allegations against them and/or did explain
to the members of the
Manguang SAPS that they did not deal with Dagga and selling alcohol
without a license but the members did
not take it into consideration;
10.3.5 That
the members of the Manguang SAPS had no urgency towards the arrest of
the Plaintiffs.
10.3.6 That
the members of the Manguang SAPS did not take into consideration
whether the Plaintiffs had a known and
fixed residence.
AND/OR
ALTERNATIVE:
11.
The arrest of the
Plaintiffs was unlawful due to the fact that the members of the
Manguang SAPS had no
prima facie
and/or reasonable grounds to
arrest the Plaintiffs.
AND/OR
ALTERNATIVE:
12.
The arrest of the
Plaintiffs was unlawful due to the fact that the members of the
Mangaung SAPS did not exercise their discretion
and/or did not
exercise their discretion properly by:
12.1 There
was no obligation on the members of the Manguang SAPS to arrest the
Plaintiff as there were no evidence confirming
that they were selling
either Dagga or alcohol to members of the public.
12.2 That the
members of the Manguang SAPS did not investigate the matter properly
and did not follow up the Plaintiffs’
explanation and proof
that all these items found in their possession relating to alcohol
was purchased by them and all purchase
orders were given to the
arresting officers.
12.3 That
there were no grounds to suspect that the Plaintiffs had committed an
offence.
12.4 That the
members of the Manguang SAPS did not exercise their discretion
properly and
bona fide
.
13.
As a result of the
unlawful arrest and detention, the Plaintiffs suffered general and
special damages in the sum of R450 000.00
each for:
13.1
Depriving of the Plaintiff’s freedom;
13.2
Contumelia;
13.3
Emotional stress and psychological trauma;
13.4
Embarrassment suffered by the Plaintiff by keeping him in holding
cells and being arrested in front of members
of the public and
colleagues;
13.5 Legal
fees.
The
amount of R450 000.00 each is a global amount for the Plaintiffs’
general and special damages.
AD
CLAIM 2 – AD MALICIOUS PROCEEDINGS
14.
14.1 On the
11
th
of October 2016 at or near Manguang, the members of
the Manguang SAPS wrongfully and maliciously set the law in motion by
arresting
and charging the Plaintiffs on the charge of possession of
Dagga and dealing in alcohol.
14.2 The
Plaintiffs on the 11
th
of October 2016 appeared in the
Manguang Magistrate’s Court on the abovementioned charges
whereafter the Plaintiff were released
on bail of R400.00 each after
the matter was remanded for further investigation.
14.3 The
unknown member of the Second Defendant alternatively the Public
Prosecutor continued to prosecute the Plaintiffs
on the
aforementioned charges and the Plaintiffs appeared in Court on six
different occasions regarding this particular matter.
14.4 On the
16
th
of March 2017 the Public Prosecutor decided to
withdraw the charges against the Plaintiffs due to a lack of evidence
and possible
successful prosecution.
14.5 The
Plaintiffs were then again Summons to appear in Court on the 13
th
of July 2017 as the unknown member of the Second Defendant decided to
re-institute the prosecution.
14.6 After
five more appearances the matter was set down for trial the 6
th
of December 2017 against the Plaintiffs but was subsequently
discharged in terms of Section 174.
15.
When laying these charges
against the Plaintiffs the members of the Manguang SAPS and members
of the National Prosecuting Authority
had no reasonable and/or
probable cause for doing so nor did they have any reasonable belief
in the truth and information and charges
initiated, but the arrest
and prosecution who were rather acuted by malice and/or
animo
iniuriandi
.
16.
At all relevant times the
aforementioned members were acting within the course and scope of
their employment as employees of the
First Defendant as members of
the Mangaung SAPS and the Second Defendant as members of the National
Prosecution Authority.
17.
As a result of the
foregoing the Plaintiffs suffered general and special damages in the
sum of R400 000.00 each for:
17.1
Contumelia;
17.2
Emotional stress and psychological trauma;
17.3 Loss of
amenities of life;
17.4 Legal
fees;
17.5
Travelling and hotel expenses.
The
amount of R400 000.00 each is a global amount for the
Plaintiff’s damages.
STATUTORY
REQUIREMENTS:
16.(sic)
Notices in terms of
Section 3 of Act 40 2002 was forwarded to the 1
st
and 2
nd
Defendants by the Plaintiffs, which Notice is annexed hereto and
marked
Annexure “A”.
Notwithstanding demand, the
Defendants have refused and/or neglected to pay the amount.
WHEREFORE
the Plaintiffs prays for judgment against the First and Second
Defendants for:
AD
CLAIM 1:
1.
Payment of the sum of R450 000.00 each;
2.
Mora interest at the rate of 10,25% per annum in terms of the
Prescribed Rate of Interest Act, No 55 of 1975
, calculated from date
of summons until date of payment;
3.
Cost of suit;
WHEREFORE
the Plaintiffs pray for judgment against the First and Second
Defendants, jointly and severally for:
AD
CLAIM 2:
1.
Payment of the sum of R400 000.00 each;
2.
Mora interest at the rate of 10,25% per annum in terms of the
Prescribed Rate of Interest Act, No 55 of 1975
, calculated from date
of summons until date of payment;
3.
Cost of suit;
[22]
The charges against the plaintiffs were for the illegal sale of
liquor and the illegal possession of
dagga.
THE
LAW: APPLICATION FOR LEAVE TO APPEAL
[23] The above
brings me to the test that must be applied when an application for
leave to appeal is considered:
1.
I
do not agree that the bar was raised with the promulgation of the
Superior
Courts
Act 10
of
2013
.
[11]
2.
The
right to appeal is, among others,
managed by the application for leave to appeal. It may not be abused
but the hurdle of an application
for leave to appeal may never become
an obstacle to justice in the post-constitutional era. Access to
justice is access to justice.
3.
The words
“would” and “only” in the current legislation
caused some to view that the bar for granting leave
to appeal has
been raised.
[12]
All it in reality articulates is that the matter must be pondered in
depth and with careful judicial introspection and care. There
must be
a sound, rational basis for the conclusion that there are prospects
of success on appeal and another Court would come to
another
conclusion.
[13]
4.
The final word was spoken in the Supreme Court of
Appeal in
Ramakatsa and others v African
National Congress and another
[2021]
JOL 49993
(SCA) in March 2021:
[10]
Turning the focus to the relevant provisions of the
Superior Courts
Act (the
SC Act), leave to appeal may only be granted where the
judges concerned are of the opinion that the appeal would have a
reasonable
prospect of success or there are compelling reasons which
exist why the appeal should be heard such as the interests of
justice.
This Court in Caratco, concerning the provisions of section
17(1)(a)(ii) of the SC Act pointed out that if the Court is
unpersuaded
that there are prospects of success, it must still
enquire into whether there is a compelling reason to entertain the
appeal. Compelling
reason would of course include an important
question of law or a discreet issue of public importance that will
have an effect on
future disputes. However, this Court correctly
added that "but here too the merits remain vitally important and
are often
decisive". I am mindful of the decisions at High Court
level debating whether the use of the word "would" as
oppose
to "could" possibly means that the threshold for
granting the appeal has been raised.
If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly,
if there are some other compelling
reasons why the appeal should be
heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates
a dispassionate decision based on the
facts and the law that a court of appeal could reasonably arrive at a
conclusion different
to that of the trial court. In other words, the
appellants in this matter need to convince this Court on proper
grounds that they
have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.
(Accentuation added)
5.
The
fact remains that
the
judicial character of the task conferred upon a presiding officer in
determining whether to grant leave to appeal is that it
should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the ineluctable correctness
of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct to an appellate Court.
[14]
CONCLUSION
[24] There does not
exist a reasonable prospect of success on appeal, that another court
would come to another conclusion
on the facts of this case or some
other compelling reason why the appeal should be heard.
[25]
ORDER
1.
The applications for leave to appeal are
dismissed in regard to all the applicants and in total.
2.
The applicants to carry the costs of the
applications for leave to appeal.
M
OPPERMAN, J
APPEARANCES:
For
the applicants:
ADVOCATE
C ZIETSMAN
Magnolia
Chambers, Pretoria
Instructed
by: Jacobs
Fourie Attorneys,
Bloemfontein.
For
respondents:
ADVOCATE
K NAIDOO
Chambers,
Free State,
Bloemfontein
Instructed
by: State
Attorney, Free State,
Bloemfontein
[1]
In his Heads of Argument counsel for the respondents in paragraph
1.1 correctly noted that: “Neither the application for
leave
to appeal nor the heads of argument set out the causes of complaints
in a lucid and logic manner.”
[2]
The applicants in this application for leave to appeal are also
referred to as the plaintiffs.
[3]
Or in this instance; read with the terms of section
40(1)(h): “…
who is reasonably suspected of committing or of having committed an
offence under any law governing
the making, supply, possession or
conveyance of intoxicating liquor or of dependence-producing drugs,
…”
[4]
Biyela
supra
and also see
Duncan
v Minister of Law-and-Order
1986
(2) SA 805
(A) at 818G – H.
[5]
Sekhoto
supra
at paragraphs [28] and [39] at 327b–c and 330e.
[6]
Sekhoto
supra
at
paragraphs
[42] to [44] at 331
c–
332
a
.
[7]
Biyela
supra
at paragraphs [
33]
and [35].
[8]
Okpaluba, C.,
Reasonable
and probable cause in the law of malicious prosecution: A review of
South African and Commonwealth decision,
PERIPELJ 2013 (16)1 241- 279 at 241.
[9]
https://www.npa.gov.za/npa-code-conduct
accessed on 21 January 2023.
[10]
Supra
at 279. Also see
Mdhlovu
v National Director of Public Prosecutions
(677/2018) [2022] ZAMPMBHC 36 (24 May 2022).
[11]
Moloi
and Another v Premier of the Free State Province and Others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021).
[12]
Moloi
and Another v Premier of the Free State Province and Others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021),
Hans
Seuntjie Matoto v Free State Gambling and Liquor Authority
4629/2017[ZAFSHC]
8 June 2017,
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency (SOC)
Ltd
2021 JDR 0273 (FB).
[13]
17.
Leave to appeal. —
(1)
Leave to appeal may
only be given where the judge or judges concerned are
of the opinion
that—
(a)
(i) the
appeal would have a reasonable prospect of
success; or
(ii)
there is some other compelling reason why the appeal should be
heard,
including conflicting judgments on the matter under
consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16 (2) (a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the parties.
[14]
Shinga
v The State and another (Society
of
Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae); S v
O'Connell and others
2007
(2) SACR 28
(CC
).