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[2023] ZAECMKHC 13
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Mndela v Amsterdam (CA264/2017) [2023] ZAECMKHC 13 (7 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: CA264/2017
In
the matter between:
ANDERSON
LUMKILE MNDELA
Appellant
and
SEDRICK
SIMON AMSTERDAM
Respondent
JUDGMENT
Bloem
J
1.
This is an appeal
against a magistrate’s award of damages in favour of the
respondent against the appellant for R70 000,
interest thereon
and costs. The appellant and the respondent are correctional
officials employed by the Department of Correctional
Services (the
Department).
2.
In his particulars of
claim the respondent alleged that the appellant wrongfully and
maliciously initiated internal disciplinary
proceedings against him
by giving false information about his alleged involvement in
misadministration, corruption and other acts
of misconduct; that when
the appellant initiated those disciplinary proceedings, he had no
reasonable cause for doing so and he
had no reasonable belief in the
truth of the information given and he did so with the sole intention
of defaming the respondent
and injuring his reputation; that as a
result of the appellant’s conduct, the Department instituted an
investigation against
the respondent; and that the charges preferred
against him in the disciplinary proceedings were withdrawn on 7
February 2007.
The respondent alleged that as a result of the
appellant’s above conduct, he suffered damages in the sum of
R50 000,
in respect of the humiliation and discomfort that he
allegedly suffered and R25 000 for damage to his reputation.
3.
In his plea the
appellant denied that he acted maliciously towards the respondent, as
alleged or at all. He alleged that on
28 August 2004 the Area
Commissioner of the Department, Mr Msenge, instructed him to
investigate and compile a report on the respondent’s
alleged
misadministration, corruption and misconduct. He conducted the
investigation and compiled a report dated 5 November
2004, which was
submitted to Mr Msenge on that same date. In that report he
recommended, based on information gathered during
the investigation,
which information he believed to have been true, that disciplinary
proceedings be instituted against the respondent.
The appellant
pleaded that it was the acting regional commissioner who decided to
institute disciplinary proceedings against the
respondent.
4.
There are two, possibly
three, issues to be decided in this appeal. The first is
whether the appellant, his employer or both
should be held liable.
The second issue is who initiated the proceedings against the
respondent. If the first two issues
are decided in the
respondent’s favour, the third issue is whether R70 000
represents fair compensation for the damage
that the respondent
suffered as a result of the malicious proceedings that the appellant
instigated against him.
5.
It is undisputed that
on Friday, 26 August 2004 the respondent submitted his written
application for leave of absence to the relevant
manager responsible
for leave at the Middelburg Correctional Centre. That manager
approved the respondent’s application
to be on leave from
Monday, 30 August 2004 to Friday, 3 September 2004. For what it
was worth, Mr Msenge approved the application
for leave on either 2
or 4 September 2004. The respondent arranged for a
Mr van Vuuren to act as head of the
Middelburg Correctional
Centre while he was on leave.
6.
When the appellant was
on duty on Saturday, 28 August 2004, he saw, for the first
time, a facsimile dated 27 August 2004,
which was addressed to the
head of the correctional centres at Middelburg, Cradock, Burgersdorp,
Somerset East and Graaff Reinet.
At the time the appellant was
the head of the correctional centre at Cradock while the respondent
was the head of the correctional
centre at Middelburg. The
facsimile was received by the respondent’s office on that
Saturday.
7.
In the facsimile Mr
Msenge forwarded the program of a meeting, to be held at his office
and which those heads were required to attend,
to them. When Mr
Msenge saw that facsimile on that Saturday, he wrote the following on
it for the attention of Mr van
Vuuren, “
Can
you please attend this meeting? If you can’t, can you
send somebody to represent me
.”
8.
It is undisputed that
the respondent did not telephone Mr van Vuuren on that Saturday or on
the Sunday to request him to attend
the meeting and that, when Mr van
Vuuren reported for duty on Monday, 30 August 2004, it was too late
for him or anyone else to
travel to East London to attend the meeting
on behalf of the respondent.
9.
The appellant received
a letter dated 2 September 2004 from Mr Msenge wherein he was
instructed “
to
probe the reasons for the failure of Middelburg correctional centre
to attend the Area Management Board Meeting that was held
on
30 August 2004
”,
to “
investigate
any other malpractice related incidents, which may surface during
your investigation
”
and to finalise the investigation on or before 17 September 2004.
The appellant conducted an investigation and submitted
a report dated
19 November 2004 to Mr Msenge. Attached to the report were all the
written statements and other documents that the
appellant obtained
from the various departmental officials during the investigation.
The appellant did not himself make a
statement to form part of
the report. In that report, the appellant recommended
that disciplinary action be taken against
the respondent and “
that
he be removed from his position of trust as Head
of the Centre as he
can no longer have any firm control over his subordinates. He
must also pay all monies that the Department
lost due to his corrupt
practices
”.
10.
It is common cause that
Mr Msenge approved the appellant’s recommendations. He
forwarded the report, with annexures
thereto and his recommendations,
to the regional commissioner, who also approved the appellant’s
and Mr Msenge’s recommendations
and instructed that
disciplinary action be instituted against the respondent. As it
turned out, the appellant was appointed
as the initiator.
Disciplinary proceedings were in due course instituted against the
respondent. On 22 March 2006
the presiding officer
terminated the disciplinary proceedings against the respondent
because “
the
hearing of Mr Mndela has dragged for more than a year and as such the
charges must fall away
.”
It is against the above factual background that the respondent
instituted an action for malicious proceedings against
the appellant.
11.
Regarding the first
issue, it is trite law that an employer is liable for the delicts of
an employee if such a delict was committed
by the employee while
acting within the course and scope of his employment with his
employer. Whether the appellant
was acting within the
course and scope of his employment with the Department to attract
liability is a factual enquiry.
12.
The appellant was at
all material times an employee of the Department. It was common
cause during the trial before the magistrate
and at the hearing of
the appeal that the appellant performed the investigation on Mr
Msenge’s instruction and conducted
the disciplinary proceedings
against the respondent on the regional commissioner’s
instructions. During cross-examination
the respondent conceded
that, without instructions from either or both of the area and
regional commissioners, he would not have
had authority to
investigate or institute disciplinary proceedings against the
respondent. In other words, absent those instructions,
the
appellant would not have performed his employer’s duties.
Had he refused to either conduct the investigation or
institute the
disciplinary proceedings against the respondent, the appellant could
lawfully have been charged with having refused
to obey a lawful
instruction.
13.
In the circumstances,
it is found that, when the appellant conducted the investigation and
when he instituted the disciplinary proceedings
against the
respondent, he did so while acting within the course and scope of his
employment as employee of the Department.
That much was pleaded
by the respondent, who alleged in his particulars of claim that the
respondent, “
in
his capacity as an employee of the Department of [Correctional
Services] wrongfully and maliciously initiated internal disciplinary
proceedings with the Department of Correctional Services
”
against him. The Minister of Correctional Services would have
been vicariously liable if the respondent established
the
requirements of malicious prosecution. The respondent could
accordingly have institute an action against the Minister
of
Correctional Services, as political head of the Department.
14.
That
does not mean that the appellant could not be sued. If a
defendant intentionally or negligently causes harm to a plaintiff,
he
is personally liable for the damages suffered by the plaintiff.
Flemming DJP held in
Harnischfeger
Corporation and another v Appleton and another
[1]
that that would be the case even if the plaintiff’s employer is
rendered vicariously liable because of the employee’s
conduct.
Such an employee:
“…
does
not cease to be liable because the employer is liable. The
employer is also liable; he is not exclusively liable.
The
relationship between employer and the activity of his employee is a
basis for holding an additional party liable and not a
ground for
absolving the person who actually committed the delict.”
15.
In the circumstances of
this case, if it is found that the respondent satisfied all the
requirements of the claim of malicious prosecution
against the
appellant, the appeal should be dismissed. The appellant would
then be liable as the person who committed the
delict. The first
issue is therefore decided in the respondent’s favour. I
now deal with whether or not the respondent
proved the claim of
malicious prosecution against the appellant.
16.
To
succeed with his claim for malicious prosecution against the correct
defendant, the respondent was required to prove that: (i)
such
defendant set the law in motion (instigated the proceedings) against
him; (ii) such defendant acted without reasonable or
probable cause
when he set the law in motion; (iii) such defendant was actuated by
malice when he set the law in motion; and (iv)
the proceedings that
such defendant set in motion against him, terminated in his (the
respondent’s) favour.
[2]
What needs to be determined in this appeal is whether or not it was
the appellant who set the law in motion against the respondent.
Ms Nel, attorney for the respondent, submitted that the
appellant set the law in motion against the respondent because, had
it not been for his report, disciplinary action would not have been
instituted against him.
17.
The facts are that it
was Mr Msenge who instructed the appellant to investigate the absence
of officials from the Middelburg Correctional
Centre at the meeting
in Cradock on 30 August 2004 and to investigate any other malpractice
which may surface during the investigation.
18.
After the
investigation, the appellant handed the report to Mr Msenge. At
that stage, the appellant left it to Mr Msenge to
decide whether or
not to follow his recommendations. Mr Msenge was required
to consider whether or not each of the findings
that the appellant
had made against the respondent was supported by the contents of the
statements and other documents which were
attached to the report.
Mr Msenge approved the appellant’s recommendations that
disciplinary proceedings be instituted
against the respondent.
The report, with Mr Msenge’s recommendations, was then
forwarded to the regional commissioner.
She was also required
to consider whether or not the report, the contents of the statements
and other documents provided a basis
for disciplinary proceedings
against the respondent. She approved Mr Msenge’s
recommendation that disciplinary proceedings
be instituted against
the respondent. As a result of those recommendations the
appellant was instructed to institute charges
against the
respondent. The respondent was charged with having absented
himself without leave on nine days before 30 August
2004 and that he
allegedly knocked off duty before he was allowed to leave on five
days, “
which
resulted into misuse of your position, maladministration/malpractice
and corruption
”.
(sic)
19.
In
my view, it was Mr Msenge who initiated the investigation, which the
appellant conducted, and it was the regional commissioner
who
initiated the disciplinary proceedings, which the appellant
instituted against the respondent. It was the regional commissioner’s
conduct in respect of the institution of the disciplinary proceedings
that factually caused the respondent to be prosecuted.
[3]
She decided that disciplinary proceedings should be instituted
against the respondent. Had she decided that, based on the
report, statements and other documents, the appellant’s
recommendations were without foundation, she could have ordered that
no disciplinary proceedings be instituted against the respondent.
The appellant might have conducted the investigation and
he
might have instituted the disciplinary proceedings against the
respondent, but he was instructed by his superiors to perform
both
processes. Despite the appellant’s involvement in the
investigation and disciplinary proceedings, the respondent
failed to
prove that any unlawful or wrongful conduct that there may have been
on the part of the appellant factually and legally
caused harm to
him.
[4]
Had the magistrate made
that finding, she would have dismissed the respondent’s claim
against the appellant. In the
circumstances, the submission
that the appellant initiated proceedings against the respondent
cannot be sustained.
20.
Since the appellant was
not the person who set the law in motion against the respondent, the
magistrate should have dismissed his
claim. The appeal must
accordingly be upheld. It is therefore unnecessary to deal with
the third issue, namely the
assessment of the quantum of the
respondent’s alleged damages.
21.
Mr Dala, counsel for
the appellant, submitted that should the appeal succeed, it would be
fair and just to order each party to pay
his own costs. Ms Nel
did not make submissions to the contrary in that regard. In my
view, such a costs order would
be just and equitable.
22.
In the result, it is
ordered that:
1.
The appeal be and is
hereby upheld.
2.
Each party shall pay
his own costs of the appeal.
3.
The magistrate’s
judgment is set aside and replaced with the following:
“
1.
The plaintiff’s action is dismissed.
2.
Each party shall pay his own costs of the action.
”
GH BLOEM
Judge of the High Court
I agree.
SJ CUBUNGU
Acting
Judge of the High Court
For
the appellant:
Mr I Dala, instructed by the State Attorney, Gqeberha and Netteltons
Attorneys, Makhanda.
For
the respondent:
Ms ID Nel of ID Nel, Minnaar and de Kock, Middelburg and Dold and
Stone Attorneys, Makhanda.
Date
of hearing:
27 January 2023.
Date
of delivery of judgment:
7 February 2023.
[1]
Harnischfeger
Corporation and another v Appleton and another
1993 (4) SA 479
(W) at 478C-D.
[2]
Minister
of Justice and Constitutional Development v Moleko
[2008] 3
All SA 47
(SCA) at par 8.
[3]
Lee v
Minister for Correctional Services
2013
(2) SA 144
(CC) at par 38.
[4]
de Klerk
v Minister of Police
2020 (1) SACR 1
(CC) at para 59-60.