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2023
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[2023] ZAFSHC 488
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Ramabanta v Minister of Police and Another (A16/2023) [2023] ZAFSHC 488 (14 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A16/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
KHOTSO
JULIUS RAMABANTA
Appellant
and
THE
MINISTER OF
POLICE
1
st
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Respondent
JUDGMENT
BY
:
MHLAMBI J,
et
LOUBSER, J
et
CHESIWE, J
HEARD ON:
06 OCTOBER 2023
DELIVERED ON:
14
DECEMBER 2023
[1]
This is an appeal against the whole judgment and orders of a single
judge in terms of which the appellant’s
two claims for unlawful
arrest and detention, on the one hand, and, malicious prosecution, on
the other, were dismissed with costs.
The appeal came before this
Court on special leave granted by the Supreme Court of Appeal.
[2]
Both the appellant and the respondent were late with their filing of
the notice of appeal and heads of argument
respectively. No issue was
taken in this regard and the necessary condonation was granted.
[3]
The appellant stated in its particulars of claim in respect of the
first claim that on 27 February 2023,
he was wrongfully and
unlawfully arrested and detained on a count of murder under CAS
number: Mangaung 297/02/2019 and appeared
in the Bloemfontein
Magistrate’s Court on 01 March 2023 when the case was postponed
to 20 March 2023 for a formal bail application.
He was kept in
custody. During the bail proceedings, the prosecutor informed the
court that he was withdrawing the charges against
him. He was
released from custody having spent 22 (twenty-two) consecutive days
in custody.
[4]
The investigating officer and arresting officers were employees of
the first respondent and acted within
the course and scope of their
employment with the first respondent. The appellant suffered damages
in the amount of R1 100 000.00
as a result of such
misconduct.
[5] On
or about 01 February 2019, and at the Bloemfontein Magistrate’s
Court, the second respondent’s
employees set the law in motion
and initiated the prosecution against the appellant for the alleged
offence of attempted murder.
The bail was initially opposed by the
state but eventually relinquished when the state withdrew the charge
against the appellant.
The appellant was deprived of his liberty
before the withdrawal of the charge. The second respondent’s
employees acted within
the course and scope of their employment with
the second respondent. The appellant suffered damages as a result in
the amount of
R1 016 000.00.
[6]
The appeal was based on various grounds and the following findings of
the court a quo were under attack:
6.1
that
Constable Squire (the arresting officer) had a reasonable suspicion
that the appellant had committed an offence of attempted
murder, and
as such, the arresting officer was justified to arrest him;
[1]
6.2
that Mr De Vries ( the prosecutor) in the employ of the second
respondent had reasonable and probable cause
to prosecute the
appellant for an offence of attempted murder based on the doctrine of
common purpose.
[2]
[7]
In its judgment, the court a quo, having
considered various authorities to which it was referred,
[3]
asked the question: whether a reasonable man in constable Squire’s
position and possessed with the same information, have
considered
that there were good and sufficient grounds in formulating a
reasonable suspicion that the plaintiff committed the offence
of
attempted murder. To answer this question, the court regarded as
objective facts at the disposal of Constable Squire that he
was
approached by the complainant who showed him a piece of paper
containing a case number and police stamp; that he was shot in
both
legs; showed his gunshot wounds and that the perpetrators were known
to him.
[4]
[8]
The court held the view that in the mind of the
constable, the complainant was shot in common purpose and
the
appellant could have been part of this plan to shoot the complainant,
bearing in mind that the plaintiff was walking alongside
the
outstanding suspects and was present when the complainant was shot.
The doctrine of common purpose establishes that where
two or more
people agree to commit a crime, each will be responsible for the acts
of the others that fall within their common purpose
or design. In the
present matter, constable Squire’s suspicion could not be
deemed unreasonable simply because the appellant
did not play an
active role in the shooting.
[5]
[9]
The court accepted that the complainant never said
that he was shot by all three suspects but mentioned a
firearm
and that before effecting the arrest, constable Squire did not
further probe the complainant’s account of how
the shooting
happened, more so that the plaintiff indicated to him that he did not
shoot the complainant.
[6]
According to constable Squire, the appellant freely told him that he
did not shoot the complainant, an “
utterance
”
that convinced him that he was indeed at the right place as the
appellant confirmed the complainant’s version that
he was shot
at by known perpetrators.
[7]
[10]
In
Duncan
v Minister of Law and Order
,
[8]
to which the court referred, a peace officer that effects an arrest
without a warrant in terms of
section 40(1)(b)
of the
Criminal
Procedure Act 51 of 1977
must entertain a suspicion that the arrestee
committed an offence referred to In Schedule 1 to the Act and that
suspicion must
rest on reasonable grounds. In Ingra
m
v Minister van Justisie
,
[9]
the test as to whether the words “reasonable suspicion”
could have existed and did exist, is to be determined by an
objective
standard, namely that of the reasonable man with the knowledge and
experience of a peace officer based on the facts and
circumstances
then known to the arresting officer. In
Mabona
v Minister of Law and Order and Others,
[10]
the reasonable man is stated to analyse and assess the information at
his disposal critically. He will not accept it lightly or
without
checking it where it can be checked. It is only after an examination
of this kind that he will allow himself to entertain
a suspicion
which will justify an arrest. What is required is suspicion and not
certainty. However, the suspicion must be based
on solid grounds.
[11]
Constable Squires was accompanied by the complainant to the
appellant’s address where he pointed him out. The appellant
admitted to knowing the complainant but denied having shot him. It is
not clear in which respect did the court find that the complainant’s
version was corroborated materially by the appellant. The fact that a
fellow traveller decides to shoot another person, does not
impute his
culpability to the other traveller. Consequently, the conclusion that
constable Squire analysed and assessed the quality
of the information
at his disposal and formulated a suspicion based on reasonable
grounds is incorrect.
[11]
What
we have is the constable’s acquiescence in the relief that he
must be at the place when he heard and was convinced by
the
appellant’s “
utterance
”
that he did not shoot the complainant. What is strange is that,
despite the appellant and the complainant being at the same
place and
giving conflicting versions, the constable failed to check these
versions before effecting the arrest.
[12]
I do not agree with Ms Merabe’s contention that the
court a quo clearly applied an objective test in assessing
the
reasonable suspicion harboured by constable Squire.
[12]
The reasonable man will analyse and assess the information at his
disposal critically and will not accept it lightly. The suspicion
must be based on solid grounds.
[13]
Mr Mazibuko correctly pointed out that the arresting officer did not
assess and analyse the information given to him by the complainant
critically. Furthermore, the factual findings did not justify a
conclusion that the appellant acted in common purpose with his
brother.
[13]
The requirements for a successful malicious prosecution are
clear. It is common cause that the prosecution was initiated
against
the appellant and that it was terminated. The question that arises is
whether the second respondent acted without reasonable
and probable
cause and animo injuriandi. In other words, was there an honest
belief founded on reasonable grounds that a prosecution
was
justified. The court a quo was of the view that Mr De Vries, the
prosecutor, had an honest belief in the guilt of the appellant
when
the matter was placed, based on the doctrine of common purpose.
[14]
This view was based on the testimony of Mr De Vries, who took the
ultimate decision to prosecute the appellant, that at the time
he
took this decision, he had access to the docket that indicated that
the appellant and other suspects were part of a group of
known men
who shot the complainant. The appellant was present at the scene and
he concluded that there was a common purpose.
[15]
On the strength of this information, he was clearly convinced that
there was enough reasonable and probable cause to believe that
the
appellant acted in common purpose with the suspects at large.
[16]
[14]
Mr Mazibuko pointed out that Mr De Vries’ reasons for
the withdrawal of the charges were recorded as follows in
the
investigation diary:
“
-From
A1 it appears that he was shot by Rorisang and not Mahashe and this
Accused is Mahashe.
-Insufficient evidence
to argue common purpose.
-Insufficient
evidence to proceed at this stage.
-Charges
withdrawn.”
[15]
He submitted, and correctly so, that the prosecution against
the appellant was initiated on insufficient evidence and
on the basis
of which the prosecution could not secure a conviction. The court a
quo erred in concluding that the second respondent
had reasonable and
probable cause which entailed an honest belief founded on reasonable
grounds that the institution of the proceedings
was justified. I
agree. In the premises, the appeal should succeed in respect of both
claims.
[16]
The appellant described the terrible conditions he had to
endure while he was kept in custody in both the Mangaung Police
Station and the Grootvlei Prison. The cells were overcrowded, the
blankets stank, as a non-smoker he was stuck in cells filled
with
smokers and the food was sparse. When he received food from the
outside, the other inmates would fight over his food. He could
not
sleep properly because the place was infested with lice and
parasites. As a result of his incarceration, he lost his job and
the
premises he rented. He is a Lesotho citizen and earned income in the
amount of R300.00 fortnightly as a plasterer at U-Office.
He was
unmarried but had a ten-year old child.
[17]
Mr Mazibuko submitted that the appellant was deprived of his
liberty at the hands of the first respondent for a period
of
forty-eight hours and twenty days for malicious prosecution at the
hands of the second respondent. Even though the awards of
the other
courts are not binding, they served as important guidelines and he
referred me to a few which were helpful.
[17]
Having considered all these authorities and circumstances, I am
satisfied that the following compensation is appropriate:
17.1
Payment of the amount of R70 000.00 in respect of claim 1 and R
650 000.00 in respect of the second.
[18]
It is trite that the successful party is entitled to the costs which
shall include the costs before the court a quo and the
costs of
appeal.
[19]
The following order ensues:
Order:
19.1
The appeal succeeds.
19.2
The first and second respondents are ordered to pay compensation to
the appellant as follows:
19.2.1 An amount of
R70 000.00 in respect of claim 1; and
19.2.2 An amount of
R650 000.00 in respect of claim 2.
19.3
The respondents are to pay the appellant’s costs which shall
include the costs before the court a quo and the costs of
appeal.
JJ MHLAMBI, J
I concur.
LOUBSER, J
I concur.
CHESIWE, J
Counsel
for the applicant:
Adv
MS Mazibuko
Instructed
by:
Mazibuko
& Wesi Incorporated
Regus
Business Centre
Brandwag
Bloemfontein
Counsel
for the respondent:
Adv.
K Nhlapho-Merabe
Instructed
by:
State
Attorney
Fedsure
House
Bloemfontein
[1]
Paras
49 and 53 of the judgment.
[2]
Paras
70,71 and 75 of the judgment.
[3]
Para
43 of the judgment.
[4]
Para
44 of the judgment.
[5]
Para
49 of the judgment.
[6]
Para
45 of the judgment.
[7]
Para
46 of the judgment.
[8]
1986(2)
SA 805 (A) at 805 G-H.
[9]
1962
(3) SA at 229G-230A.
[10]
1998
(2) SA 654
(SE) at 658E-H.
[11]
Para
53 of the judgment.
[12]
Para
20-24 of the Respondents’ heads of argument.
[13]
Mabona,
supra.
[14]
Para
74 of the judgment.
[15]
Para
70 of the judgment.
[16]
Para
71 of the judgment.
[17]
De
Klerk v Minister of Police
2021 (4) SA 585
(CC); Brits v Minister of
Police
[2021] ZASCA 161
; Motladile v Minister of Police
2023 (2)
SACR 274
(SCA).