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[2010] ZASCA 97
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De Beer v Minister of Safety and Security (356/09) [2010] ZASCA 97 (3 September 2010)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
356/09
In the
matter between:
No precedential significance
RUSSEL
BRENT DE BEER Appellant
and
MINISTER OF SAFETY AND SECURITY Respondent
Neutral citation:
De Beer v Minister of Safety and Security
(356/09)
[2010] ZASCA 97
(3September 2010)
Coram:
Harms
DP, Nugent, Lewis and Bosielo JJA and K Pillay AJA
Heard: 19
August 2010
Delivered 3 September 2010
Summary:
Appeal against dismissal of action for malicious
prosecution: decision of high court confirmed: reasonable belief that
offence committed
and no animus injuriandi on part of police.
ORDER
On appeal from North Gauteng High Court (Pretoria) (Mavundla J
sitting as the court of first instance):
The appeal is dismissed with costs including those of two counsel
where so employed.
JUDGMENT
LEWIS JA ( HARMS DP, NUGENT AND BOSIELO JJA AND K PILLAY AJA
concurring)
[1] The appellant, Russel de Beer, was a cannabis farmer at the
Kameeldrift farm near Rustenburg. He purported to cultivate cannabis
(known generally as dagga) for research purposes in terms of a permit
acquired by the Agricultural Research Centre. It came to
the
attention of police in the area (at the Assen police station) that he
was growing cannabis plants and they were informed that
he was
selling dagga.
[2] Inspector Westmaas, the branch commander of the Assen police
station, who had been informed that De Beer was growing dagga
on the
farm, and whose informant claimed to have bought some from him, was
told that the appellant claimed to be operating in terms
of a permit.
He thus tried to establish whether a permit to cultivate dagga did
exist and whether permits of this nature were ever
issued. His
research yielded no information.
[3] Westmaas duly obtained a search warrant from a magistrate and
visited the appellant’s farm with fellow officers on 9
February
2004. I shall describe the events on that day more fully in due
course. Suffice it to say for the moment that De Beer
could not
produce a permit, and Westmaas arrested him and took him to the Assen
police station. He was charged with contravening
various provisions
of the
Drugs and Drug Trafficking Act 140 of 1992
and was detained
overnight. On 10 February 2004 De Beer was released on bail. He
appeared six times in court thereafter but eventually
a permit –
of which more later – was found and the charges against him
were withdrawn a year later.
[4] De Beer instituted action against the respondent for malicious
prosecution, claiming damages in respect of legal expenses incurred
and for damages suffered as the result of the unlawful conduct of the
police responsible for arresting and charging him. The North
Gauteng
High Court (Mavundla J) dismissed the action, finding that the
respondent had shown that there were reasonable grounds
justifying
Westmaas’s suspicion that De Beer was committing an offence and
that he was not activated by malice (having no
animus injuriandi).
The appeal to this court is with the leave of the trial court.
[5] The questions to be determined on appeal are whether Westmaas
acted without probable cause and animo injuriandi; and if so,
the
quantum of damages. The latter was not considered by the high court
since it found that no wrong had been committed by the
police. I
shall deal first with probable cause: whether Westmaas reasonably
believed that De Beer was acting in contravention of
the Act by
cultivating dagga.
[6] When Westmaas and his colleagues arrived at De Beer’s farm
they were shown the dagga plants which were growing openly
on the
farm: De Beer explained that his activity was legitimate because he
had a permit. He was experimenting with hemp for various
commercial
purposes, he said. He did not have a permit on the farm but showed
Westmaas a file (referred to as a book as well) reflecting
‘research’
done from 2000 to 2001.
[7] De Beer informed Westmaas that he should contact a Dr Joubert at
the Agricultural Research Centre who would explain the nature
of the
permit. Dr Joubert proved to be uncontactable that day. Westmaas took
advice from the local police legal adviser who also
made enquiries.
While attempts were made to find out more about the permit Westmaas
started to count the dagga plants and also
searched the premises. He
found dagga seed in a bath, and dagga leaves in containers in the
kitchen and in a variety of other places.
Photographs of all these
things were taken and were exhibits at the trial. The premises did
not appear to him to be a research
centre, and he suspected that no
permit existed.
[8] This suspicion was supported when he found an envelope addressed
to a person overseas: it contained cardboard protecting dagga
seeds.
Westmaas, who had initially been under the impression that the
alleged permit was for the cultivation of cannabis, was confused
by
De Beer’s assertions first that he was growing it for
commercial purposes, but later that the farm was a research facility.
Other than the book relating to 2000 and 2001 there was no evidence
at all that any research was being conducted on the farm or
in the
farmhouse. It was conceded that it was reasonable for Westmaas to
have believed that no research was being conducted on
the farm.
[9] Eventually, when the legal adviser was unable to establish
anything about the existence of a permit he advised Westmaas to
arrest De Beer and charge him. It is noteworthy that De Beer appeared
to make no effort to contact anyone who could enlighten the
police,
but did contact a journalist – a ‘dagga activist’.
[10] Westmaas duly arrested the appellant, who, as I have said, was
released the following day on bail. And the charges were withdrawn
months later when a permit to conduct research, issued to the
Agricultural Research Centre by the Department of Health, was found.
Although on the face of it the permit appeared to have expired, it
subsequently transpired that at the time of the arrest it had
in fact
been in existence. Whether De Beer was complying with its terms (‘to
create a gene pool of well adapted cultivars
. . . for hemp
production’) is irrelevant to the question whether Westmaas
reasonably believed that De Beer’s activities
were criminal.
[11] In considering this question the trial court dealt
comprehensively with all the evidence, including the photographs of
the
plants and the premises in which dagga seeds and leaves were
stored, and concluded that Westmaas had indeed had a reasonable
suspicion
that offences were being committed. Its conclusion in this
regard cannot be faulted.
[12] The second question is whether the respondent, through Westmaas,
acted animo injuriandi. Again, the high court concluded that
this was
not the case. Any police officer, the court said, faced with evidence
of possession of dagga in substantial quantities,
would have been
irresponsible had he not effected an arrest.
[13] Where a plaintiff sues for malicious prosecution he must prove
malice in the form of intention to injure. It is trite that
this
requires that the defendant acted with knowledge that what he was
doing was wrongful or at least that he was reckless as to
the
consequences of his conduct. (See, most recently,
Relyant Trading
(Pty) Ltd v Shongwe & another
[2007] 1 All SA 375
(SCA) para
5;
Minister for Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA) paras 61 to 65 and
Rudolph v Minister of
Safety and Security
2009 (5) SA 94
(SCA) para 18.)
[14] There was no evidence at all that Westmaas had acted with
knowledge that his conduct was unlawful. On the contrary: he
believed,
reasonably, that De Beer was contravening the law and that
he had a duty to arrest and charge him. Furthermore, he acted on the
advice of the police legal adviser. Both of them had made concerted
attempts to establish whether De Beer was in fact acting lawfully.
When they could not do so they considered that there was a duty to
arrest De Beer. Malice (animus injuriandi) was certainly absent.
Even
recklessness could hardly be claimed given the efforts made to
ascertain whether De Beer was correct in asserting that he
had a
permit to grow hemp for commercial purposes. De Beer himself did not
assist in this regard: nor did his wife or father who
were present.
[15] De Beer’s argument that Westmaas acted over-hastily and
should have made greater efforts to find the permit does not
bear
scrutiny. Westmaas had made attempts before visiting the farm to
establish whether there was a permit. On the day of the arrest
he
tried to contact Dr Joubert, at De Beer’s suggestion, in vain.
The legal adviser’s attempts to do so were also futile.
And in
the end the permit was produced only four months after the arrest.
[16] The trial court found correctly that there was no animus
injuriandi – and therefore no malicious prosecution. The action
was in my view correctly dismissed.
[17] The appeal is dismissed with costs including those of two
counsel where so employed.
_____________
C H Lewis
Judge of Appeal
APPEARANCES
APPELLANTS: E C Labuschagne SC
Instructed by Adams & Adams,
Pretoria
Naudes Attorneys , Bloemfontein.
RESPONDENTS: F A Ras (with him M B Maltejoane)
Instructed by The State Attorney,
Pretoria The State Attorney, Bloemfontein.