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[2023] ZAKZPHC 106
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Mdletshe N.O and Another v Minister of Police (AR 135/2022) [2023] ZAKZPHC 106 (23 June 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 135/2022
In
the matter between:
CEDRICK
SAKHILE MDLETSHE N.O.
FIRST APPELLANT
(ESTATE
LATE SIPHELELE MDLETSHE)
SMANGA
TEMBE
SECOND APPELLANT
and
THE
MINISTER OF POLICE
RESPONDENT
ORDER
On
appeal from: Durban Magistrates' Court:
1.
The appeal is upheld;
2.
The judgment of the court a quo is set aside; and replaced with the
following
order: Judgment is granted in favour of each of the
plaintiffs in the sum of R400 000 together with interest at the rate
of 10.5%
per annum a tempore morae from date of demand to date of
final payment;
3.
Costs of suit including costs of the appeal.
JUDGMENT
ZP
Nkosi J (Kruger J concurring)
Introduction
[1]
The appeal is against the judgment of the magistrate, Durban Court,
dismissing the
appellants' claims for malicious arrest and detention
on the basis that such claims were out of time, alternatively for
failure
to deal with the merits of the claims for malicious arrest
and detention in her final judgment. The appeal is also against the
dismissal of the malicious prosecution claim.
Background
[2]
The appellants instituted action (in the amount of R400 000 each)
against the respondent
for malicious arrest and detention and
malicious prosecution out of the Durban Magistrates' Court, on 23
March 2017. The appellants
further claimed for interest at the rate
of 10.5% from the date of demand to the date of final payment and
costs of suit.
[3]
The claims are a sequelae to the arrest and detention of the
appellants on 25 November
2010. Both appellants were arrested by
unknown members of the South African Police Services at their
respective homes in KwaMashu
Township. The appellants were known to
each other and grew up together in the KwaMashu Township area. It
appears that both appellants
were identified and implicated by their
co-accused, one Sibusiso Ngcobo ("Ngcobo"), who had
committed an offence of housebreaking
in the Mayville area.
[4]
On 28 November 2010, and while in custody for the aforementioned
charge, the appellants
were approached by one Detective Erasmus
("Erasmus") who informed them that they were being arrested
together with Ngcobo,
and that they would also be charged for an
offence committed in Amanzimtoti. Erasmus further told the appellants
that he heard
that the offence was committed in Amanzimtoti by males
from the KwaMashu area and that they would be charged (under
Amanzimtoti
CAS 272/10/2010) for the offences of housebreaking,
robbery and attempted sexual assault.
[5]
Both appellants were then charged and brought to court on the
following day, where
they were informed by the court that they would
not be released on bail because they were charged with Schedule 6
offences. The
appellants were then subjected to a criminal trial in
respect of the aforesaid offences.
[6]
In the criminal trial, Erasmus, Ngcobo, and the complainant, a white
female, one L[...]
P[...] testified against the appellants. Both
appellants were found not guilty and discharged on 29 July 2016.
Civil
trial history
[7]
The issues of liability and quantum were not separated in the trial.
The plaintiffs
(appellants) adduced oral evidence in support of their
claim while the defendant (respondent) failed to do so.
[8]
Instead, the respondent filed three special pleas, namely:
(a)
non-compliance
with s 3 of the Institution of Legal Proceedings against Certain
Organs of State Act ("the Act");
[1]
(b)
prescription of the malicious arrest and detention claim; and
(c)
the court's jurisdiction to entertain the claim.
The
pertinent one for purposes of this case is (b), which was to the
effect that the appellants' claim of malicious arrest and detention
had prescribed.
[9]
It was the appellants' contention (to the prescription plea) that
prescription began
to run from the date of the termination of the
proceedings in their favour, on 29 July 2016.
And
it was so because the appellants' causes of action are based on
malicious arrest and detention as well as malicious prosecution.
[10]
Thus, it is further submitted by the appellants that the
prescribed notice in terms of
s 3 of the Act was sent timeously, on 7
December 2016; and was received and acknowledged by the respondent on
15 December 2016.
The special plea on the court's jurisdiction was
settled by the parties and thus requires no further determination.
[11]
On the remaining special pleas, the learned magistrate ruled (in a
rather mysterious, distorted
and confusing fashion) as follows:
[2]
'Action
arose in 28 November 2010.
Having
given the notice in terms of Section 3 of the Institution of Legal
Proceedings against certain organs of State on 7 December
2017, that
being outside the prescribed period of six months, I found that the
section has been complied with and the subsequent
issue of summons in
respect of wrongful arrest and detention is also outside the
prescribed period of three years.
Accordingly,
the plaintiffs' action against the first and second respondents for
wrongful arrest are out of time.
It
follows therefore that both actions against the defendant are
DISMISSED WITH COSTS.
The
plaintiff may only proceed with their further claim based on
malicious arrest - detention and malicious prosecution.'
[12]
The confusing ruling prompted the discussion which ensued between the
appellants' counsel and
the bench in which it was indicated that the
appellants did not claim for wrongful arrest and detention but for
malicious arrest
and detention. With the learned magistrate still
sounding confused, she further compounded the mystery when she
concluded the discussion
by stating:
[3]
'...
did you listen to my judgment? In as far as there is unlawful and
wrongful arrest and detention, that one would have prescribed.
But
because malicious arrest and prosecution - I mean and detention and
prosecution are continuous proceedings, that part of it
has not
prescribed.'
And
after further engagements, she concluded by saying:
[4]
'I
will revisit that and when I do my full judgment at the end of the
matter. I may correct that if I find that you are right in
what you
are saying.'
[13]
Unfortunately, and to the detriment and prejudice of the appellants'
case, the confounding ruling
was never revisited in the final
judgment as promised. Instead, the learned magistrate proceeded as
though she had, in her earlier
ruling, dismissed the appellants'
claim of malicious arrest and detention and only allowed malicious
prosecution to be proceeded
with.
[5]
[14]
The learned magistrate concluded, on the conspectus of evidence
adduced that:
(a)
there was insufficient evidence before the court, which justified a
finding that the respondent
acted without reasonable and probable
cause; and
(b)
no evidence was placed before the court to justify any conclusion
that there was
animo iniuriandi
on the part of the respondent.
The learned magistrate then made an order granting absolution from
the instance in favour of the
respondent, with each party to pay its
own costs.
lssue(s)
[15]
The main issue in this appeal is whether or not the court a quo
misdirected itself in dismissing
the appellants' claims (a) of
malicious arrest and detention on the basis that they were out of
time; and (b) of the malicious
prosecution on the basis of
insufficient evidence. And if so, whether this court is at large to
consider the questions of quantum,
interest and costs.
Malicious
arrest and detention - the applicable law
[16]
In
Law
of Delict
[6]
under the caption 'Malicious deprivation of liberty' the learned
authors aptly state:
'Unlike
the wrongful deprivation of liberty, where the result complained of
must have been caused without justification by the defendant
himself
or some person acting as his agent or servant, the conduct in the
case of malicious deprivation of liberty takes place
under the
guise of a valid judicial process
. The defendant makes improper
use of the legal machinery of the state, either through a policeman
acting on his own discretion
or through a valid warrant, in depriving
the plaintiff of his liberty. The actual deprivation of liberty is
consequently not carried
out by the defendant himself or by his
servant or agent, but by the machinery of the state through a valid
judicial process.
As
a result, the plaintiff will have to prove the following in order to
succeed in an action based on the malicious deprivation
of liberty:
that the defendant instigated the deprivation of liberty; that the
instigation was
without reasonable
and
probable cause
;
and that the defendant acted
animo iniuriandi
. These
requirements are similar to those for
malicious prosecution
.
Note that if a criminal prosecution results from the deprivation of
liberty, the plaintiff will also have to prove that the prosecution
failed before he will be able to succeed in an action based on the
malicious deprivation of liberty.' (Footnotes omitted).
[17]
In
Thompson
and Another v Minister of Police and Another
[7]
which case is on all fours with this case, it was held:
[8]
'In
claims based on malicious arrest, malicious prosecution or malicious
execution, however, it has been held that it is essential
for the
plaintiff to allege and prove that the defendant acted maliciously
and without reasonable and probable cause (see
Hart v Cohen
,
16 S.C 363)
; Estate
Logie v Priest
, 1926 A.O. 312 at p.315;
Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(AD)
at p. 135;
Van Der Merwe v Strydom
1967 (3) SA 460
(AD) at p.
467).'
[18]
The court further held:
[9]
'In
an action based on malicious prosecution it has been held that no
action will lie until the criminal proceedings have terminated
in
favour of the plaintiff. This is so because one of the essential
requisites of the action is proof of a want of reasonable and
probable cause on the part of the defendant, and while a prosecution
is actually pending its results cannot be allowed to be prejudged
by
the civil action. (
Lemue v Swartbooi
, supra at p. 407). The
action therefore only arises after the criminal proceedings against
the plaintiff have terminated in his
favour or where the
Attorney-General has declined to prosecute. To my mind the same
principles must apply to an action based on
malicious arrest and
detention where a prosecution ensues on such arrest, as happened in
the present case. The proceeding from
arrest to acquittal must be
regarded as continuous, and no action for personal injury done to the
accused person will arise until
the prosecution has been determined
by his discharge. (
Bacon v Nettleton
,
1906 T. H. 138
at pp 142
- 3).
From
this it follows that the plaintiff's cause of action in respect of
the alleged malicious arrest and detention in the present
case, can
only have arisen on the judgment of this Court allowing the appeal
against their conviction in the magistrate's court,
i.e. on 29th
April, 1969. This means that, in giving notice to the second
defendant on 20th September, 1968 and issuing summons
on 25th
October, 1968, they were complying with the provisions of sec. 32 of
Act 7 of 1958...'
[19]
In
Nel
and Another v Minister of Safety and Security and Others
[10]
the plaintiffs were arrested on 28 January 2003. They were charged
and prosecuted and were discharged on 1 April 2004. The defendant
took special pleas, inter alia, that the plaintiffs failed to
commence their action within six months after the cause of action
had
arisen in terms of the Act and the matter had prescribed in terms of
the Prescription Act ("the Prescription Act")
[11]
as the summons had been served on 9 May 2006 after a period of three
years. The presiding judge, with reference to
Thompson
v Minister of Police
[12]
held:
'[19]...from
the above, it follows that the plaintiffs' claim in respect of the
alleged malicious arrest and detention became due
on April 1, 2004,
the date on which they were discharged.'
[20]
The court held:
'[20]
The plaintiffs gave notice in terms of section 3 of Act 40 of 2004 in
a letter dated 17th September 2004 which was received
by the first
defendant on 28th September 2004. Quite clearly, notice was given
within a period of six (6) months from the date
on which a debt
became due. The plaintiffs, undoubtedly, acted within a prescribed
period. The result is that the defendant's first
special plea must
fail.'
And
the court further held:
'[21]
The summons commencing the plaintiff’s action was issued on the
21st April 2006, and served on the defendants on 24th
April 2006, 8th
May 2006 and 9th of May 2006, respectively.
This
was approximately two (2) years from the date on which a debt became
due, that is, April 1, 2004. The plaintiffs acted within
a prescribed
period of three (3) years. Therefore, the second special plea must
also fail.'
[21]
From the foregoing, it is abundantly clear that the learned
magistrate was wrong in her findings
on the special pleas, and should
have held that:
(a)
the appellants cause of action of malicious arrest and detention,
started on their discharge
on 29 July 2016; and
(b)
since the respondent had received notice in terms of s 3 of the Act,
on 15 December 2016,
within six months and summons having been served
on 11 April 2017, the appellants had complied with all the
requirements. Therefore,
her findings, being an infraction, must be
set aside.
[22]
Since the legal requirements for claims based on malicious arrest and
detention are similar to
those for malicious prosecution, it appears
to me that the former would have suffered the same fate as the latter
according to
the learned magistrate's assessment and reasoning of the
facts placed before her. Therefore, a correct analysis and assessment
of the facts presented to her during the trial needs to be made in
order to establish whether or not her findings are assailable,
bearing in mind the onus which rested on the appellants.
[13]
Evaluation
[23]
It is undeniable that Erasmus set the law in motion, on 28 November
2010 when he arrested and
charged the appellants at the Durban
Central Police Station (under Amanzimtoti CAS 272/10/2010) for
housebreaking with intent to
rob and robbery and contravention of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act.
[14]
Once a charge is laid, the prosecution has begun.
[15]
[24]
The following emerged from the appellants' evidence which remained
unchallenged:
(a)
Erasmus stated to the appellants at the time of their arrest that he
would arrest them for
an Amanzimtoti case the reason being that he
did not want or like males from KwaMashu and had heard that the
offences had been
committed by males from the KwaMashu area. Erasmus
further stated that he wanted them to rot in jail and did not want
them to be
released on bail;
[16]
and
(b)
this was reiterated in the second appellant's evidence who stated
that Erasmus said that
he had heard that the offences had been
committed by people from KwaMashu and he was going to charge them for
those offences because
people from KwaMashu caused a lot of trouble
in the Amanzimtoti area. He further stated that he (Erasmus) would
ensure that they
would rot in jail and would not get bail.
[17]
[25]
In
Beckenstrater
v Rottcher and Theunissen
[18]
the court stated, in relation to the requirement of absence of
reasonable and probable cause, that:
[19]
'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;'
[26]
In
Ramakulukusha
v Commander, Venda National Force
[20]
the court stated in this regard as follows:
[21]
'Insofar
as the absence of "reasonable and probable cause" is
concerned... Plaintiff did not have to produce more than
slight
evidence of this (see
Pyett
v Francis
(1907) 28 NLR 194
at 200), and defendant had to show that its
servants had good grounds for their belief in the truth of the
accusation against plaintiff
which they failed to show...'
[22]
[27]
In this regard, and viewed from the perspective of the appellants'
evidence it seems to me, on
a prima facie level, that Erasmus
displayed unhindered prejudice towards males from KwaMashu for the
reasons he mentioned to them
at the stage of their arrest. Erasmus
seems to have undertaken a personal crusade against men from KwaMashu
in the matter being
investigated and charged the appellants based on
little to no evidence to support the charges and failed to show good
grounds for
his belief.
[28]
In
Trust
Bank of Africa Ltd v Senekal
[23]
the court stated thus:
[24]
'To
the same effect as the opinion of Bloch, J, in
R v Mantell
,
1959 (1) SA 771
(C), that prima facie evidence if unanswered would
justify men of ordinary reason and fairness in affirming the question
which
the party upon whom the onus lies is bound to maintain (at p.
775). How far the defendant's evidence need to go in order to answer
a prima facie case depends upon the facts of each particular case.
Whilst no onus of proof is cast on him, he must adduce evidence
sufficient to destroy the prima facie proof and thus prevent such
proof from ripening into conclusive proof (
Arthur v Bezuidenhout
and Mieny,
1962 (2) SA 566
(AD) at p. 575, (
Salmons v Jacoby
,
1939 AD 588).
Merely to cast suspicion on the correctness of the fact
or facts prima facie established and mere theories or hypothetical
suggestions
will not avail the defendant; the defendant's answer must
be based on some substantial foundation of fact (
Arthur's
case, supra at p. 575),
Nicholls & Whitelaw
,
N.O. v
Akoo
,
1948 (4) SA 197
(N),
R v Chizah
,
1960 (1) SA 435
(AD).'
[29]
The appellants' evidence contained prima facie proof of the
allegations made against Erasmus.
Since there was no evidence that
was tendered on behalf of the respondent, such evidence went
unchallenged and thus became conclusive.
The learned magistrate
should therefore have found that the appellants had proved the
absence of reasonable and probable cause
on the part of the
respondent.
[30]
In
Pyett
v Francis
it was stated that:
[25]
'The
second question, as to the defendant's honest belief in the case he
laid before the Magistrate, is closely connected with the
third - was
the defendant actuated by an indirect motive in preferring the
charge, and both these questions have to be considered
in arriving at
the conclusion whether there was malice. In De Villiers on
Injuries
(p. 207), it is said: "The absence of probable and reasonable
cause, will, as a rule, be an ingredient assisting the Court
in
arriving at a conclusion whether
animus iniuriandi
was present
or not" ... It has been held in English cases that want of
reasonable and probable cause may be equivalent to
malice - that, the
latter may be inferred from the former...'
[31]
In
C v C
and Others
[26]
the Supreme Court of Appeal stated as follows:
'[66]...
As I have pointed out earlier, once it is found that there was no
reasonable or probable cause for initiating the prosecution
and
defaming the plaintiff, the defendant attracted an evidential burden
to rebut the natural inference that she acted
animo iniuriandi
.
In the absence of any evidence from her as to her state of mind, or
any other admissible evidence, she faced an almost insurmountable
hurdle to rebut this inference... '
[32]
It is not sufficient for a defendant to merely deny
animus
iniuriandi
,
he/she must allege and prove the factual basis for the absence of
animus
iniuriandi
.
[27]
[33]
According to the appellants' unchallenged evidence referred to
hereinbefore, they were arrested
for no reason other than the fact
that they were from KwaMashu and that Erasmus had heard that the
offences, for which he charged
them, had been committed by the "boys"
who were causing trouble in the Amanzimtoti area. As alluded to
above, Erasmus
seems to have undertaken a personal crusade against
men from KwaMashu whom he believed were responsible for the high
crime rate
in Amanzimtoti area without, I venture to say, information
as would lead a reasonable man to conclude that the appellants had
probably
been guilty of the offence charged.
[34]
Even if I am wrong in my assessment or deduction of Erasmus's state
of mind, the fact of the
matter is that the respondent did not give
evidence as to his (Erasmus's) actual state of mind. Thus, the
conclusion that Erasmus
was actuated by malice, is unavoidable.
Malicious
prosecution
[35]
As adumbrated herein earlier, all the authorities referred to under
malicious arrest and detention,
apply with equal force with malicious
prosecution as the requirements/elements of these causes of action
are the same. In regard
to this claim the learned magistrate held
that the first appellant's evidence was that there were a number of
detainees from KwaMashu
who were charged with the first appellant
after Ngcobo had pointed them out.
[28]
In truth, throughout his evidence in chief and under
cross-examination the first appellant never testified at all that
there were
other detainees from KwaMashu other than the three of them
that were charged.
[36]
I have also discerned from the record of the proceedings that she
actually misdirected herself
on a host of other facts/findings which
I mention below:
(a)
in holding against the appellants that no explanation why Ngcobo, who
was also from KwaMashu,
was left out as he was also arrested and
charged by Erasmus. The actual reason why only the three (the
appellants and one Mxolisi
Khumalo) were charged was never disclosed
since Erasmus was never called to testify.
[29]
In any event it is evident that Ngcobo was used by the State to
testify for it in the criminal trial;
(b)
in holding that the first appellant's evidence was that, on the
following day he appeared
in court, where he was granted bail which
was fixed at R2 000. And that he was taken to Westville Prison
because he did not have
bail money and his mother paid the amount
seven days later and he was released, accordingly, there was no
sufficient evidence before
the court which justified a finding that
the respondent acted without reasonable and probable cause.
[30]
On the contrary, the true version given by the first appellant is
that he appeared in court in connection with the offences for
which
Erasmus charged him on the following day. He applied for bail and he
did not get bail and the reasons furnished to them was
that they were
facing Schedule 6 offences. After the refusal of bail, he reapplied
for it in September 2011 and it was granted
in the sum of R2 000 and
he paid it and was then released. There is no reference on record of
the first appellant's mother and
seven days in any context
whatsoever;
[31]
(c)
in holding that the second appellant's evidence to the effect that
upon interacting
with Erasmus and the second appellant having
confirmed that he was from KwaMashu, and that Erasmus charged him for
housebreaking,
robbery and attempted sexual assault, that such
evidence alone was not sufficient for the court to reach the
conclusion that the
respondent acted without reasonable and probable
cause.
[32]
In the absence of
evidence contradicting the second appellant on this score, the
learned magistrate should have held that such
evidence became
conclusive;
(d)
in holding that just because the appellants appeared in court and
were warned of the seriousness
of the charges against them, that the
criminal trial proceeded, that the complainant and Erasmus testified
and that the prosecutor
was never called to testify in order to show
that there was no malice, accordingly, no evidence was placed before
the court to
justify the conclusion that there was
animo
iniuriandi
on
the part of the respondent
[33]
and that the appellants failed to discharge the onus on the balance
of probabilities and thus it could not be said that the respondent
had no reasonable and probable cause much less malice in instituting
the proceedings.
[34]
The court
should have held that the unchallenged evidence of the appellants as
to the reasons for their arrests and charging, which
must be accepted
as the truth, in the absence of a challenge by the respondent, was
sufficient to infer malice on the part of the
respondent.
Alternatively, that on the face of such evidence, the respondent
failed to discharge its evidential burden.
[35]
[37]
The learned magistrate was not privy to the contents of the
complainant's and Erasmus's evidence
in the criminal trial. She thus
misdirected herself in concluding that their testifying signaled the
presence of reasonable and
probable cause and absence of malice. In
my view, the appellants had established a prima facie case and did
not need the evidence
of the prosecutor.
Legal
causation
[38]
In
De
Klerk v Minister of Police
[36]
the Constitutional Court held:
'[47]
….liability should be determined in accordance with the
principles of legal causation, including
constitutionally infused
considerations of public policy'.
It
further held earlier in the judgment that:
'[25]
"Legal causation" is concerned with remoteness of damage.
This entails an enquiry into whether the wrongful act
is sufficiently
closely linked to the harm for the liability to ensue'. (Footnote
omitted.)
[39]
In
Mahlangu
and Another v Minister of Police
[37]
the Constitutional Court cited with approval the case of
Botha
v Minister of Safety and Security and Others
;
January
v Minister of Safety and Security and Others
[38]
where it was stated:
'[30]
This, in my view, includes any further detention for as long as the
facts which justify the detention are within the knowledge
of the
police official. Where there are no facts which justify the
further detention of a person, this should be placed by
the
investigator before the prosecutor of the case, and the law casts an
obligation on the police official to do so.'
[39]
[40]
In
Shabalala
v Minister of Police
[40]
the court held:
'[27]
It is not disputed that the servants of the defendant caused the
institution of the prosecution of the plaintiff in the matter
in
casu
. The prosecution was based on the same information relied
upon for the unlawful arrest. It therefore follows that there was no
reasonable or probable cause to prosecute the plaintiff. At that
stage, more importantly, the servants of the defendant were aware
that neither the victims of the robbery nor the CCTV footage could
link the plaintiff to the robbery. Despite this, the defendant
proceeded to instigate the prosecution of the plaintiff, regardless
of the consequences of its conduct. In acting as it did, it
acted
animo injuriandi
.'
[41]
The court continued:
'[29]
After the plaintiffs first appearance on 29 April 2016, the
Magistrate postponed the case on numerous occasions until it was
subsequently withdrawn by the state. The defendant's counsel argued
that the further detention of the plaintiff from 29 April 2016
up to
28 June 2016, when the plaintiff was denied bail, and the further
detention up to 2 March 2017, constituted an intervening
event that
cannot be attributable to the defendant. It was argued that the
defendant should not be liable for the further detention.
[31]
In the absence of the investigating officer's testimony at the bail
hearing, the only inference to be drawn is
that the investigating
officer opposed the release of the plaintiff on bail, notwithstanding
the weak evidence available against
the plaintiff.'
[42]
The conduct of the respondent in this matter, after the arrest, is to
be carefully scrutinised
to assess whether the full truth was brought
to the court's attention for purposes of the consideration of the
bail application.
[43]
In the matter of
Minister
of Safety and Security v Tyokwana
[41]
the police also failed to fairly bring the full facts before the
court. The Supreme Court of Appeal stated that:
'[41]...
Kani, as well as Muller, failed dismally to give a fair and honest
statement of the relevant facts to the prosecutor and
to bring all
the relevant circumstances under the attention of the magistrate. On
the contrary, they wilfully distorted the truth
thereby misleading
the prosecutor and the magistrate, with the result that the
respondent was remanded in detention and refused
bail, and remained
in custody until his acquittal on 20 July 2009.
…
[43]
In
Zealand v Minister of Justice and Constitutional Development
and Another
[2008] ZACC 3
;
2008 (2) SACR 1
(CC)
(2008 (4) SA 458
;
2008 (6) BCLR
601
, a claim for delictual damages for wrongful detention was
considered and it was held that the detention of the plaintiff for
the
entire period of his incarceration was unlawful, in that s
12(1)(a) of the Constitution was unjustifiably and unreasonably
violated....
[44]
In my view, the respondent has shown that the circumstances in which
the appellant's employees
instigated and persisted with his
prosecution amounted to an unjustifiable breach of s 12(1)(a) of the
Constitution. This is sufficient
to establish delictual liability on
the part of the appellant for the full period of the respondent's
detention from 2 October
2007 to 20 July 2009.'
[44]
A similar approach was followed recently by the Constitutional Court
in the matter of
Mahlangu
and Another v Minister of Police
.
[42]
The Court referred to the matter of
Woji
v Minister of Police
,
as well as the matter of
Zealand
,
and stated:
'[33]
In
Woji
, the SCA followed
Zealand
. It held that the
Minister was liable for post-appearance detention, where the wrongful
and culpable conduct of the police had
materially influenced the
decision of the court to remand the person in question in custody.
Its reasoning effectively means that
it is immaterial whether the
unlawful conduct of the police is exerted directly or through the
prosecutor.
…
[44]
If we are to give meaning to freedom as a foundational value of our
Constitution and to the right
to freedom and security of the person,
we cannot allow the police to deprive people of their freedom by so
simple a stratagem as
behaving in the egregious manner in which they
did here, and then lying low and keeping quiet to see if anything
will come to the
rescue of the victims of their nefarious deeds. If
we allow that to happen, then police - like they did before the
advent of our
democracy - will continue to ride roughshod over the
freedoms of our people. So, generally in circumstances like the
present, public
policy dictates delictual liability must attach, lest
we find ourselves in the situation where freedom as a constitutional
value
and the right to freedom and security of the person are
devalued.
[45]
The unlawful continued concealment by the police, of the fact that
the confession was obtained
illegally, therefore provides the
applicants with a basis for holding the Minister delictually liable
for the full detention period...'
(Footnote omitted.)
[45]
In
De
Klerk v Minister of Police
[43]
the Constitutional Court stated as follows:
'[83]
The Minister of Justice and Director of Public Prosecutions might be
jointly and severally liable with the Minister of Police,
but it is
sufficient for one of them to be sued for their proven delict for the
applicant to succeed. A plaintiff may elect to
sue only one person
whose delict caused her harm, even if another person's independent
delict also caused that same harm. It is
not obligatory that
all
joint wrongdoers be sued in the same action. Where all joint
wrongdoers have not been sued, a court is not barred from determining
the liability, if any, of the party or parties before it... '
[46]
Erasmus charged the appellants with serious offences of housebreaking
with intent to rob and
robbery and sexual offences falling under
Schedule 6 in terms of s 60 (11) of the Criminal Procedure Act,
[44]
which places the onus on the accused person to prove the existence of
exceptional circumstances, which in the interest of justice
warrant
his/her release on bail. Erasmus must have foreseen, and by inference
did foresee that the appellants would not be released
on bail as they
also faced a charge of housebreaking, which fell under Schedule 1,
where ordinarily, the applicant for bail is
entitled to be released
and the onus is on the State to prove otherwise.
[47]
The undisputed evidence of the appellants is that Erasmus informed
the appellants that he would
ensure that they would not get bail and
would 'rot' in jail. The inference is inescapable that Erasmus never
brought to the attention
of the prosecutors and/or judicial officers
who were involved in the criminal proceedings against the appellants
that the charges
at best were weak or at worst were fabricated by him
with the help of Ngcobo who was possibly coerced and found himself
under duress
to point the appellants as his partners in crime. I say
so because the criminal proceedings against the appellants never went
beyond
the State's case which strongly suggests that the State's case
had all along been a weak and hopeless one.
[48]
Hence, the appellants remained in custody for almost ten months. I
hold the view that the respondent
should be held liable for the
entire period of detention of the appellants, commencing on 28
November 2010 up to their release
in September 2011.
Quantum
[49]
Having found that the respondent is liable for malicious arrest or
deprivation of liberty and
malicious detention and malicious
prosecution, it appears it would be appropriate, just, and convenient
that the court should also
determine the quantum of damages for the
injuries suffered by the appellants. No objection to the fixing of
damages has been raised/voiced
by any party to the appeal. A remittal
to the trial court to determine the damages would simply involve
needless delay and additional
costs. More so in this instance where
extensive arguments/submissions in regard to quantum have been
submitted.
[45]
Malicious
arrest and detention
[50]
In Visser and Potgieter's
Law
of Damages
[46]
under the heading
'Unlawful
and malicious deprivation of liberty or arrest'
the learned authors state:
'A
distinction is made between "false imprisonment" or
"wrongful arrest" and "malicious imprisonment"
or
"malicious arrest" as forms of infringement of physical
freedom. However, in all these delicts the amount of satisfaction
is
assessed in terms of the same basic factors.
In
deprivation of liberty the amount of satisfaction is in the
discretion of the court and calculated ex aequo et bone. Factors
which can play a role are the circumstances under which the
deprivation of liberty took place; the presence or absence of
improper
motive or "malice" on the part of the defendant;
the harsh conduct of the defendants; the duration and nature (eg
solitary
confinement or humiliating nature) of the deprivation of
liberty; the status, standing, age, health and disability of the
plaintiff;
the extent of the publicity given to the deprivation of
liberty; the presence or absence of an apology or satisfactory
explanation
of the events by the defendant; awards in previous
comparable cases; the fact that in addition to physical freedom,
other personality
interests such as honour and good name as well as
constitutionally protected fundamental rights have been infringed;
the high value
of the right to physical liberty; the effects of
inflation; the fact that the plaintiff contributed to his or her
misfortune; the
effect an award may have on the public purse; and,
according to some, the view that the actio iniuriarum also has a
punitive function.'
(Footnotes omitted).
[51]
In
Masisi
v Minister of Safety and Security
[47]
the court said:
'[18]
The right to liberty is an individual's most cherished right, and one
of the foundational values giving inspiration to an
ethos premised on
freedom, dignity, honour and security. Its unlawful invasion
therefore strikes at the very fundament of such
ethos. Those with
authority to curtail that right must do so with greatest
circumspection, and sparingly...'
In
this case, the arrest and detention were found to be malicious and
detention lasted for four hours. Damages were awarded in the
amount
of R65 000.
[52]
In
EA
and Others v Minister of Police
[48]
the arrest and detention were found to be malicious and lasted for 16
hours. Damages were awarded in the amount of R250 000.
[53]
In
Sikhumbuzo
Mfanafuthi Mthethwa v The Minister of Police
[49]
the plaintiff was in custody for 42 days and was awarded damages in
the amount of R30 000 in the Magistrates' Court, Ntuzuma. On
appeal,
the Durban High Court (per Ploos van Amstel J with Hadebe J
concurring), granted the full amount claimed i.e. R200 000
for
unlawful arrest and detention.
[54]
In
Stayela
Bhekinkosi Ngubane v Minister of Safety and Security and Another
[50]
the court granted damages in the amount of R400 000. The plaintiff
was detained for approximately 44 days.
[55]
In
Sinovuyo
Godlo v Minister of Police
[51]
the plaintiff was detained for 64 days. He was awarded damages in the
amount of R650 000.
[56]
In
Onwuchekwa
v Minister of Police and Another
[52]
the plaintiff was detained for 44 days. He was awarded damages in the
amount of R600 ooo.
[57]
In
Lebelo
v Minister of Police
[53]
the plaintiff was detained for 101 days. Damages in the amount of
R500 000 was awarded.
[58]
In
Phasha
and Another v Minister of Safety and Security
[54]
the plaintiffs were arrested and detained for a period of 301 days
and 305 days. And they were awarded R930 000 and R730 000 in
damages
respectively.
[59]
In
Buthelezi
v Minister of Police and Others
[55]
the court found (per Chetty J) that there was malice in the
plaintiffs detention and awarded damages in the amount of R1,6
million.
[60]
The first appellant testified about the nature of his incarceration,
his experiences whilst in
custody and his personal circumstances.
[56]
The second appellant also testified about the nature of his
incarceration, his experiences whilst in custody and his personal
circumstance.
[57]
[61]
The appellants spent almost ten months in custody. I consider that
the full amount claimed to
be deserved.
Malicious
prosecution
[62]
In
Law
of Damages
,
[58]
the learned writers had this to say in assessing damages for
malicious prosecution:
'Satisfaction
is assessed ex aequo et bone. Factors influencing the amount are, for
example, the seriousness of the crime
for which the plaintiff
was prosecuted and the severity of the penalties in the case of a
conviction; the period of incarceration;
the period during which the
charge hung over the plaintiffs heads; despite the plaintiffs
acquittal, persistence by the defendant
in the charge originally
preferred against the plaintiffs; the fact that the charge had not
been withdrawn but proceeded with until
the plaintiff was acquitted
at the end of the State case; malice on the part of the defendant;
"that plaintiff has the right
to be compensated for personal
insult, indignity, humiliation and... inevitable defamation";
the absence of an apology on
the part of the defendant; and previous
awards in comparable cases (taking inflation into account).'
(Footnotes omitted).
[63]
In
Rautenbach
v Minister of Safety and Security and Others
[59]
the plaintiff appeared four to five times in court and charges were
withdrawn after six months. Damages were awarded in the amount
of
R150 000. The plaintiffs arrest received media coverage as the
plaintiff was a Chairperson of a Local Community Police Forum.
[64]
In
Sithole
v Minister of Safety and Security and Another
[60]
the plaintiff was arrested on 13 October 2010 and remained in custody
until the charges were withdrawn on 25 October 2010. Damages
were
awarded in the amount of R170 000.
[65]
In
Sikhumbuzo
Mfanafuthi Mthethwa v The Minister of Police
[61]
the magistrate awarded damages in the amount of R20 000 for malicious
prosecution that lasted for three months. On appeal, the
High Court
held that such an amount was inadequate and awarded the full amount
of R200 000.
[66]
Recently, in
Gumbi
v Minister of Police
[62]
the court (per Lopes J) awarded an amount of R570 000 for malicious
prosecution. The plaintiff appeared 19 times in court and his
case
attracted media publicity.
[67]
The appellant's prosecution is exceptionally different to the cases
cited above in that the serious
charges hung over their heads for
almost six years with each facing the minimum sentences of 15 years'
imprisonment. I am of the
view that they deserve the full amount (as
claimed) of R200 000 each under this head.
Interest
[68]
The Prescribed Rate of interest Act
[63]
as amended in April 1997 states that interest on illiquid claims,
like this one, runs from the date of service of a demand or summons
whichever date is the earlier. Prior to this amendment interest ran
from the date of judgment.
[64]
[69]
In
Drake
Flemmer and Orsmond Inc and Another v Gajjar
[65]
the court aptly stated as follows:
'[63]
The legislature exercised that policy choice by inserting s 2A into
the Interest Act with effect from 11 April 1997. That
section
provides that interest at the prescribed rate runs on an unliquidated
debt from the date on which payment was claimed by
service of a
demand or summons, whichever is the earlier...'
[66]
[70]
In
Net v
Minister of Safety and Security
[67]
the court (the single judge) had awarded interest to run from the
date of judgment. The matter was taken to the full bench which
held:
'[12]...The
default position of the Act is that the amount of every unliquidated
debt as determined by any court of law shall bear
interest at the
prescribed rate a tempore mora, unless a court of law orders
otherwise. Where a court deviates from this position,
an order that
it may make, must appear just in the circumstances of that case. If
Du Plessis, J wanted to deviate from this position
he should have
given reasons in his judgment why it was just and equitable to do so.
This he did not do lt seems to me more
a matter of oversight on
the part of my brother Du Plessis J, than anything else.'
[71]
In
Sikhumbuzo
Mfanafuthi Mthethwa v Minister of Police
[68]
where the magistrate had awarded interest from the date of judgment,
on appeal the court held:
'[14]...
It will be appropriate for interest to run from the date of the
service of the summons as contemplated in section 2A (2)
(a) of the
Act. The magistrate seems to have overlooked this provision when she
awarded interest from the date of her judgment.'
[69]
[72]
At the time of the institution of these proceedings the interest rate
was 10.5%. Interest rates
have fluctuated over the years; however,
the following legal principle applies:
[70]
'The
rate prescribed under ss (2) at the time when interest begins to run
governs the calculation of interest. The rate is fixed
at that time
and remains constant. Subsection (1) does not provide for the rate to
vary from time to time in accordance with adjustments
made to the
prescribed rate by the Minister of Justice in terms of ss (2). The
fact that the Minister may from time to time prescribe
different
rates of interest therefore has no effect on the rate applicable to
interest which has already begun to run.'
[73]
The default position is clear as a matter of law, namely that
interest runs from the date of
service of a demand or summons
whichever is earlier, not unless the court is asked to exercise its
discretion in terms of s 2A
(5) of the Prescription Act to deviate
from the default position. 'Plainly, if parties wish certain facts
and circumstances to
be weighed in the exercise of such a discretion
they must establish them.'
[71]
[74]
In my view, there are no facts or circumstances (and none have been
established) in this matter
to justify a deviation from the default
position of the rate of interest. More so, in this case where the
respondent was well aware
that it could not defend the appellants'
claims on their merit.
Order
[75]
Wherefore, the following order shall issue:
1.
The appeal is upheld;
2.
The judgment of the court a quo is set aside; and replaced with the
following
order:
Judgment
is granted in favour of each of the plaintiffs in the sum of R400 000
together with interest at the interest rate of 10.5%
per annum a
tempore morae
from date of demand to date of final payment;
and
3.
Costs of suit including costs of the appeal.
Z
P Nkosi J
Kruger
J
Case
information
DATE
OF HEARING:
3
MARCH 2023
DATE
JUDGMENT HANDED DOWN:
23
JUNE 2023
FOR
THE APPELLANTS:
MR T.
NDLOVU
(Instructed
by THAMI NDLOVU
&
COPMANY
C 642
Amanzimtoti Road KwaMashu
c/o M
H Mathonsi & Associates
151
Pietermaritz Street
Pietermaritzburg
Email:
mmathonsi@telkomsa.net
Tel:
083 593 7214
Ref:
TN / tn / CVL 732)
FOR
THE RESPONDENT:
MR D.
PILLAY
(Instructed
by STATE ATTORNEY:
KWAZULU-NATAL
6th
floor, Metropolitan Life Building
391
Anton Lembede Street
Durban
c/o
Cajee Setsubi Chetty Inc
195
Boshoff Street
Pietermaritzburg
Tel:
031 306 2448
Ref:
A Essa/ B Enoch)
[1]
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002.
[2]
Record, Volume 1, page 48 line 19-page 49 line 6.
[3]
Record Volume 1, page 50 lines 19-22.
[4]
Ibid page 52 lines 15-19.
[5]
Volume 2, page 98 lines 1-40.
[6]
Neethling and Potgieter
Law
of Delict
8 ed (2020) at 398-399.
[7]
Thompson
and Another v Minister of Police and Another
1971 (1) SA 371
(E).
[8]
Ibid at 373F-G.
[9]
Ibid at 375A-D.
[10]
Nel and
Another v Minister of Safety and Security and Others
(1686/2006)
[2008] ZAFSHC 88
(28 August 2008).
[11]
Prescription Act 68 of 1969
.
[12]
Thompson
and Another v Minister of Police and Another
1971 (1) SA 371 (E).
[13]
Gordon
Lloyd Page and Associates v Rivera and Another
2001
(1) SA 88
(SCA) at 90G-H;
Minister
for Justice and Constitutional Development and Others v Moleko
2009
(2) SACR 585 (SCA).
[14]
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
.
[15]
See
Kroomen
v Lobascher
(1903) 13 CTR 674;
Lederman
v Moharal Investments (Pty) Ltd
1969 (1) SA 190
(A) at 197;
Waterhouse
v Shields
1924 CPD 155
at 160,;_and Rudolph and Others v Minister of Safety
and Security and Another
2009 (2) SACR 271
(SCA) para 19
[16]
Record, Volume 1, page 63 lines 9-18.
[17]
Ibid page 81 lines 18-25; page 82 lines 1-5.
[18]
Beckenstrater
v Rottcher and Theunissen
1955 (1) SA 129 (A).
[19]
Ibid at 136A-B.
[20]
Ramakulukusha
v Commander, Venda National Force
1989 (2) SA 813
(V).
[21]
Ibid at 844I-845A.
[22]
In
Pyett
v Francis
(1907) 28 NLR 194
at 200 the court stated the following: 'It is not
enough that the defendant believed in the truth of his accusation:
he must
show good ground for his belief.'
[23]
Trust
Bank of Africa Ltd v Senekal
1977 (2) SA 587 (W).
[24]
Ibid at 5938-E.
[25]
Pyett v
Francis
(1907) 28 NLR 194
at 199-200.
[26]
C v C
and Others
(205/2019)
[2021] ZASCA 12
(3 February 2021).
[27]
Mdhlovu
v Natal Director of Public Prosecutions
[2023] 1 All SA 458
(MM) para 21 (with reference to
Ramsay
v Minister van Polisie
1984 (1) SA 802
(A) at 802A-C;
Jansen
van Vuuren and Another NNO v Kruger
[1993] ZASCA 145
;
1993
(4) SA 842
(A) at 856A-857G).
[28]
Record, Volume 2, page 102 lines 34-40.
[29]
ibid page 102 lines 40-41; page 103 lines 1-3.
[30]
Ibid page 103 lines 4-9.
[31]
Record, Volume 1, page 64 lines 1- 2.
[32]
Record, Volume 2, page 103 lines 10-18.
[33]
Ibid page 103 lines 32-40.
[34]
Ibid page 104 lines 1-5.
[35]
See
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) paras 61-63;
Brits
v Minister of Police and Another
(759/2020)
[2021] ZASCA 161
(23 March 2021) para 5.
[36]
De
Klerk v Minister of Police
2021 (4) SA 585 (CC).
[37]
Mahlangu
and Another v Minister of Police
2021 (2) SACR 595
(CC) para 40.
[38]
Botha v
Minister of Safety and Security and Others; January v Minister of
Safety and Security and Others
2012 (1) SACR 305 (ECP).
[39]
Also see
Singatha
and Another v Minister of Police and Another
(284; 285/2012) [2015] ZAECBHC 19 (26 March 2015) paras 42, 43 and
45.
[40]
Shabalala
v Minister of Police
(2017/12111) (2021] ZAGPJHC 598 (3 November 2021).
[41]
Minister
of Safety and Security v Tyokwana
2015 (1) SACR 597 (SCA).
[42]
Mahlangu
and Another v Minister of Police
2021 (2) SACR 595 (CC).
[43]
De
Klerk v Minister of Police
2021 (4) SA 585 (CC).
[44]
Criminal Procedure Act 51 of 1977
.
[45]
Neethling
v Du Preez and Others; Neethling v Weekly Mail and Others
[1994] ZASCA 133
;
1995 (1) SA 292
(A) at 297-298.
[46]
Visser and Potgieter's
Law
of Damages
3 ed (2012) at 545-548, para 15.3.9.
[47]
Masisi
v Minister of Safety and Security
2011 (2) SACR 262
(GNP).
[48]
EA and
Others v Minister of Police
(14/41567) (2019] ZAGPJHC 9 (12 February 2019).
[49]
Sikhumbuzo
Mfanafuthi Mthethwa v The Minister of Police
,
unreported judgment of the High Court of South Africa,
KwaZulu-Natal, Durban, Case Number: AR 186/2019 (28 July 2020).
[50]
Stayela
Bhekinkosi Ngubane v Minister of Safety and Security and Another
,
unreported judgment of the High Court of South Africa,
KwaZulu-Natal, Durban, Case Number: 4113/2008.
[51]
Sinovuyo
Godlo v Minister of Police
,
unreported judgment of the High Court of South Africa, KwaZulu
Natal, Durban, Case Number: 8631/2007 (4 July 2017).
[52]
Onwuchekwa
v Minister of Police and Another
(58581/11) [2015] ZAGPPHC 919 (28 August 2015).
[53]
Lebelo
v Minister of Police
(25300/2016) (2018] ZAGPPHC 69 (28 February 2019).
[54]
Phasha
and Another v Minister of Safety and Security
(15751/09) (2015] ZAGPPHC 1117 (1 November 2016).
[55]
Buthelezi
v Minister of Police and Others
(D7472/2013) (2021] ZAKZDHC 20 (2 August 2021).
[56]
Record, Volume 1, page 69 lines 11-25; page 70 lines 1-25; and page
71 lines 1-9.
[57]
Ibid page 84 lines 19-25; page 85 lines 1-25; page 86 lines 1-25;
and page 87 lines 1-2.
[58]
Visser and Potgieter's
Law
of Damages
3 ed (2012) at 550 para 15.3.11.
[59]
Rautenbach
v Minister of Safety and Security and Others
(48774/09) [2013] ZAGPPHC 387 (20 November 2013).
[60]
Sithole
v Minister of Safety and Security and Another
(63897!2011)
[2016] ZAGPPHC 387 (27 May 2016).
[61]
Sikhumbuzo
Mfanafuthi Mthethwa v The Minister of Police
,
unreported judgment of the High Court of South Africa,
KwaZulu-Natal, Durban, Case Number: AR 186/2019 (28 July 2020).
[62]
Gumbi v
Minister of Police
(07156/2016) [2022] ZAKZDHC 17 (1 April 2022).
[63]
Prescribed Rate of interest Act 55 of 1975.
[64]
See
SA
Eagle Insurance Co Ltd v Hartley
[1990] ZASCA 106
;
1990 (4) SA 833
(A) at 841C-842B.
[65]
Drake
Flemmer and Orsmond Inc and Another v Gajjar
2018 (3) SA 353 (SCA).
[66]
Also see
Khulani
Springbok Patrol (Pty) Ltd v Marine Schoon
,
unreported judgment of the High Court of South Africa,
Pietermaritzburg, Case Number: AR 789/2005 (29 September 2006).
[67]
Nel v
Minister of Safety and Security
(A1009/2010) (2012) ZAGPPHC 188 (22 August 2012)
[68]
Sikhumbuzo
Mfanafuthi Mthethwa v The Minister of Police
,
unreported judgment of the High Court of South Africa,
KwaZulu-Natal, Durban, Case Number: AR 186/2019 (29 July 2020).
[69]
Also see
Minister
of Safety and Security v Sipho Emmanuel Mzizi and Others
,
unreported judgment of the High Court of South Africa, Kwa-Zulu
Natal, Pietermaritzburg, Case Number: 656/13 (4 February 2015)
para
22.
[70]
Davehill
(Pty) Ltd and Others v Community Development Board
1988 (1) SA 290
(A) at 301A-B.
[71]
Adel
Builders v Thompson
2000 (4) SA 1027
(SCA) para 15.