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[2023] ZAECMHC 37
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Nompetsheni v Minister of Police and Others (2094/2021) [2023] ZAECMHC 37 (18 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MTHATHA]
CASE NO: 2094/2021
In
the matter between:
KHOLISILE
JOSEPH NOMPETSHENI
PLAINTIFF
and
MINISTER
OF POLICE
1
ST
DEFENDANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
ND
DEFENDANT
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
3
RD
DEFENDANT
JUDGMENT
CENGANI-MBAKAZA AJ
Introduction
[1]
The Plaintiff issued a combined summons against all Defendants, for
damages arising
from an unlawful arrest and detention by a member of
the South African Police Service. According to the Plaintiff, the
claim for
damages is based on delict. Consequently, the Plaintiff
claims payment for the following damages:
(a)
A sum of R5 000 000.00 for unlawful arrest
and detention, impairment of dignity, loss of freedom, deprivation of
his movement, pain,
suffering and psychological trauma.
(b)
The Plaintiff seeks to have an amount of
R800 000.00, for loss of income, from the first, second and
third Defendants, jointly
and severally, the one paying each other to
be absolved.
(c)
Lastly, the Plaintiff demands a payment of
R5 000 000.00 for malicious prosecution from the first,
second and third Defendants,
jointly and severally, the one paying
each other to be absolved.
[2]
At the close of the Plaintiff’s case, the Defendants brought an
application
for absolution from the instance in terms of Rule 39 (6)
of the Uniform Rules of Court.
In this judgment, I
consider it necessary to give a blow-by-blow account of the events
that culminated into this application for
absolution from the
instance.
The Pleadings
[3]
In respect of claim A
[1]
,
the Plaintiff alleges that on or around 11 August 2019, at Mtyu
Administrative Area in Ngqeleni, the first Defendant unreasonably,
unlawfully and without a warrant, arrested him [the Plaintiff].
It
is common cause that the Plaintiff’s claim is premised on
vicarious liability. It is specifically averred that the wrongful
acts were committed by the employees of the first Defendant during
the course of their employment and whilst in execution of his
duties.
[4]
As far as claim B
[2]
is concerned, the Plaintiff asserts that the Defendants, or one or
more of them, knew or anticipated that their conduct would prevent
him from generating advantageous income when they committed the acts
of unlawful arrest and detention and further prosecution against
him.
The Plaintiff further asserts that since the time of his
arrest, he has experienced financial loss and loss of income,
because
of the reputational damage, he will likely continue to experience
significant financial loss in the near future.
[5]
In relation to claim C
[3]
,
the Plaintiff avers that the prosecutor instigated criminal
proceedings against him without reasonable and/ or probable cause
and
in doing so acted with malice or
animo
iniurandi.
[6]
On 11 November 2021, the Defendants filed a plea and made a bold
denial of events
as pleaded. This necessitated the Defendants to file
an amended plea. In the amended plea the Defendants admit that the
Plaintiff
was arrested without a warrant. In amplification thereto,
the 1
st
Defendant avers that police officers opened a case docket to expedite
an arrest emanating from rape charges of a nine-year-old
girl, and
that the offence is the one mentioned in Schedule 1. It is further
pleaded that the arrest was effected in accordance
with the
provisions of Section 40 (1) (b) of the Criminal Procedure Act.
[4]
[7]
The Defendants further deny liability for damages arising from loss
of income due
to reputational damage against the Plaintiff.
[8]
In respect of Claim C, the Defendants specifically plead that the
prosecutor continued
to pursue the prosecution of the Plaintiff based
on the statements made by the state witness. In amplification, the
merits pleaded
are identical to those pleaded in the first claim.
[9]
In a pre-trial conference held on 11 May 2022, the parties agreed
that the Plaintiff
bears a duty to begin, and each party bear the
onus of proof on such aspects where the onus lies with them.
[5]
The parties further agreed that there will be no need for separation
between the merits and quantum. The trial proceeded on the
said
basis.
Plaintiff’s case
[10]
Prior to his arrest, the Plaintiff, a general labourer, was employed
by Xelisile Construction
Company, to repair water pipes. The
Plaintiff’s salary was R4700, 00 per month.
[11]
On 11 August 2019, two police officers arrived at his home. He was
instructed to go to a police
vehicle. The police drove with him and
two minor relatives of his, by the names of S […] and P […]
(‘the two
minor children’) to Ntlaza Hospital. Upon their
arrival at Ntlaza hospital, the two minor children and one police
officer
entered the hospital grounds whilst he was left with one
police officer in the car.
[12]
A police officer informed him that he was a subject of a rape charge.
He categorically denied
the allegation. They were then taken
home.
[13]
On the following day, an investigating officer by the name of
Qolomashe took him to the police
station. From the police station he
was taken to Wellington prison. At the prison, two buccal swabs
were taken from him.
[14]
Although he could not remember his first appearance in court, he was
however certain that he
occasionally attended court proceedings.
During his appearances in court, the Magistrate informed him of his
right to apply for
bail but he relinquished his right on several
occasions.
[15]
The Plaintiff described his incarceration in prison as appalling.
According to him he was kept
in a cramped cell that could hold no
more than seventy-four inmates. He had a fight with another inmate
that left him with a broken
jaw. He was visibly upset when he
testified about his mother who passed away while he was in prison.
The Plaintiff claimed that
he was never told how she died.
Cross-examination
[16]
During cross examination, the following facts were never placed in
dispute,
that:
·
the victim is the Plaintiff’s niece.
·
the alleged child victim positively
identified the Plaintiff as the person who raped her.
·
the two minor children made statements
which implicate the Plaintiff to the commission of the offence.
·
the victim was allegedly raped on 11 August
2019.
·
the doctor who examined the victim on 12
August 2019, noted bruising in the vagina, a bleeding hymen and blood
stains in the underwear.
[17] In addition,
Plaintiff made various crucial concessions:
·
he elected not to bring a bail application.
·
the victim’s statement reveals that
he raped her whilst they were at the forest to collect livestock.
·
he had gone to the forest to retrieve
livestock but denied being in the presence of the victim or that he
sexually assaulted her.
·
given the evidence implicating him as
a perpetrator of the crime, his arrest and detention were justified.
·
considering the nature of the case
and the evidence against him, the State was justified to prosecute
him.
·
his criminal case is still pending at
Ngqeleni Regional Court, his next date of appearance was scheduled
for 23 June 2023.
[18]
With this evidence, the Plaintiff closed his case.
Absolution from
instance
[19]
Following the conclusion of the Plaintiff’s case, the
Defendants’ counsel informed
the court of his preparedness to
request the dismissal of the Plaintiff’s claims.
[6]
The Plaintiff’s counsel, on the other hand, sought an
indulgence to prepare and address the court at a later instance. Both
parties were amenable to submitting written heads of argument and
made an undertaking that there would be no need for further addresses
thereafter.
[20]
The law relating to absolution from the instance is well settled.
The
test for absolution to be applied by a trial court at the end of a
Plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
[7]
in these terms:
“
.
. . (W) hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.”
[21]
Sufficient evidence is sometimes referred to as ‘
prima
facie
evidence’, ‘
prima
facie
proof’ or a ‘
prima
facie
case’.
Prima
facie
evidence is evidence which requires an answer from the other party,
and in the absence of an answer from the other side, it can
become
‘
conclusive
proof’ and
he
(on whom lies the burden of proof completely discharges the burden of
proof)
[8]
.
The Plaintiff has to establish all the elements relating to a
claim to survive absolution because without such evidence
no court
could find for the plaintiff.
[9]
The
court is not compelled to make a credibility determination at this
point unless the witnesses have visibly broken down and it
is obvious
that what they have said is not true.”
[10]
[22]
The court should always take into account that the Defendant has not
yet given evidence and testified. Thus,
the court should not dismiss
the Plaintiff’s evidence unless it is glaringly incredible.
[11]
The parties
‘contentions
[23]
Counsel for the Defendants contends that absolution from the instance
is at this stage justified because
the arresting officer admits that
they acted in terms of Section 40(1) (b) of the Criminal Procedure.
He argues that nothing was
presented to gainsay this point and
further Plaintiff failed to prove the elements of malicious
prosecution. The Defendants submit
further that no basis was laid on
why the third Defendant was sued.
[24]
On the other hand, counsel for the Plaintiff argues that the
application for absolution from the instance
should be dismissed on
the basis that the Defendants who bear the onus to prove that arrest
and subsequent detention were lawful,
presented no evidence to
justify this conduct. It is contended on behalf of the Plaintiff that
the offence of which the Plaintiff
was arrested of falls under
Schedule 6 and not Schedule 1 and therefore this requires that a
warrant of arrest be first obtained
before arrest.
[12]
Therefore, so the argument continues, the police exercised their
discretion to arrest incorrectly. It is further contended that
the
second and the third Defendant allowed the Plaintiff to remain in
custody whilst there was no evidence to convict him. From
the date of
the arrest until the 5
th
of December 2022, there were no DNA results from the docket. The
second Defendant should have requested that the Plaintiff be released
from custody. Alternatively, the third Defendant should have
safeguarded the Plaintiff’s right to liberty by simply striking
the matter off the roll, so he argues.
Applicable Law and
Evaluation
[25]
To settle the arguments raised it is appropriate, to begin with what
the parties must prove on each of the
three claims. I now proceed to
deal with arrest and detention. It is well settled that police
bear the onus to justify arrest
and detention.
[13]
In
Minister
of Law and Order v Hurley & Another
[14]
,
the court remarked as follows,
“
An
arrest constitutes an interference with the liberty of an individual
concerned and it therefore seems to be fair and just to
require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action was
justified in law”
[26] It
is common cause that the arresting officer arrested the Plaintiff
without a warrant. Section 40(1)(b)
of the Criminal Procedure Act
reads,
“
A
peace officer may without a warrant, arrest any person whom he
reasonably suspects of having committed an offence referred to
in
Schedule I, other than offence of escaping from custody”
[27]
The jurisdictional facts for section 40(1)(b) defence were
encapsulated in
Duncan
v Minister of Law and Order
[15]
as follows:
(i)
The arrester must be a peace officer;
(ii)
The arrester must entertain a suspicion;
(iii)
The suspicion must be that the arrestee
committed an offence referred to in Schedule 1; and
(iv)
The suspicion must rest on reasonable
grounds
[28]
In
Mabona
and Another v Minister of Law and Order and Others
[16]
,
Jones J remarked:
“……
It
seems to me that in evaluating his information a reasonable man would
bear in mind that the section authorizes drastic police
action. It
authorises an arrest on the strength of a suspicion and without the
need to swear a warrant, i.e., something which otherwise
would be an
invasion of private rights and personal liberty. The reasonable man
will therefore analyse and assess the quality of
information at his
disposal critically and 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. This is
not to say that the information
at his disposal must be of sufficiently high quality and cogency to
engender in him a conviction
that the suspect is in fact guilty. The
Section requires suspicion but not certainty. However, the suspicion
must be based on solid
grounds. Otherwise, it will be flighty or
arbitrary and not a reasonable suspicion.”
[29] In
the case under consideration, it has been proved that sergeant
Qolomashe was a peace officer, he entertained
a suspicion that the
Plaintiff committed a rape of a minor child. In terms of the
Criminal Procedure Act rape falls under
schedules 1 and 6 of the Act.
Regrettably, counsel for the Plaintiff overlooked this aspect.
[30]
Gleaning from the information that was discovered, the witnesses’
statements, the medical report and
very illuminating concessions made
by Plaintiff, it is justified to infer on a balance of probabilities
that the arrest was based
on solid grounds. I therefore, find that
the jurisdictional facts for arrest were satisfied.
[31]
It is well settled that once the jurisdictional facts for an arrest
are present, discretion arises. The general
requirement is that any
discretion must be exercised in good faith, rationally and not
arbitrarily.
[17]
The point of determination is whether sergeant Qolomashe’s
exercise of discretion was within the confines of the enabling
legislation. It must be borne in mind that a party who attacks the
exercise of discretion where the jurisdictional facts are present
bears the onus of proof. The Supreme Court of Appeal in
Minister
of Safety and Security v Sekhoto
[18]
held:
“
Para
[46]… once the jurisdictional facts have been established it
is for the plaintiff to prove that the discretion was exercised
in an
improper manner. This approach was adopted in Duncan (at 819 B-D) as
being applicable to attacks on the exercise of discretion
under
Section 40(1) (b).
Para [47], All this and
more has already been stated by Hefer JA in Dempsey. I do recognise
that the context was somewhat different
and that he was dealing with
motion proceedings and not trials.
Para [48], As to the
general principles, he said:
Once the jurisdictional
fact is proved by showing that the functionary in fact formed the
required opinion, the arrest is brought
within the ambit of the
enabling legislation and is thus justified. And if it is alleged that
the opinion was improperly formed,
it is for the party who makes the
allegations to prove it.”
[32] In
the present matter, it has already been determined that a rape charge
falls under schedules 1 and 6 of
the Criminal Procedure Act. It is
unfounded for counsel to claim that sergeant Qolomashe improperly
exercised his discretion by
applying an incorrect schedule and
arrested the Plaintiff without first obtaining a warrant for his
arrest. Plainly, this assertion
is not supported by law.
[33]
Moreover, the Plaintiff led no
prima
facie
evidence to prove that sergeant Qolomashe had an ulterior motive or
failed to act logically or arbitrarily in the exercise of his
discretion during the arrest. It is quite discernible from the
Plaintiff’s testimony that the arresting officer followed
the
correct procedures
[19]
and his intention was merely to bring the Plaintiff to justice.
[34]
It is well established that an arrest and detention are separate
legal processes, so much so that while the
arrest may be lawful; the
detention may be unlawful; the fact that both result in someone being
deprived of her or his liberty
does not make them one legal
process.
[20]
Gleaning from the pleadings the issue of arrest and subsequent
detention of the Plaintiff are intertwined. I have already
concluded
that the conduct of the police caused no harm in arresting the
Plaintiff, it then follows that detention was justified.
[21]
[35] No
evidence was laid by the Plaintiff in respect of loss of income
subsequent to his arrest and detention
except for what is contained
in the particulars of claim. The only evidence found before the court
was that he was working at a
construction company and receiving
R4700. 00 a month. It is therefore insignificant to dwell much
on this point and safe
to conclude that I might not find in his
favour on the relief sought.
Malicious Prosecution
[36]
To avoid a ruling of absolution from the instance, the Plaintiff is
required to adduce
prima facie
evidence to prove on a balance
of probabilities that the second Defendant, set the law in motion;
the instigation of the proceedings
was without probable cause; it was
perpetuated by malice; and the prosecution failed.
[37]
It is well established that ‘setting the law in motion’
requires the ‘active
involvement’ of the Defendant in
pursuing the prosecution of the Plaintiff.
[22]
The second Defendant admits having set the law in motion but denies
other elements of the claim.
[38]
In
Minister
of Police v Ayanda Marula
[23]
,
the court remarked that malice and lack of probable cause are two
distinct elements, both of which must be proved, and neither
of which
may exist without the other. The court further referred to
Minister
of Safety and Security v Tyokwana
[24]
,
where the Supreme Court of Appeal dealt with the requirement of
animus (malice). In terms of
Tyokwana,
a Plaintiff is required to prove that the Defendant intentionally
pursued their prosecution despite knowing that there are no
reasonable grounds for doing so. The court held:
“
If
no reasonable grounds exist, but the defendant honestly believes that
either that the plaintiff is guilty, or that reasonable
grounds are
present, the second element of animus iniurandi, namely consciousness
of wrongfulness, will be lacking.”
[39]
A Practical Guide to the Ethical Code of Conduct of Members of the
National Prosecuting Authority
[25]
sets out the role that prosecutors should play in conducting criminal
proceedings on behalf of the state. In terms of the
Code
[26]
,
the prosecutor will proceed only when a case is well founded upon
evidence which is reasonable believed to be reliable and admissible
and will not continue to prosecute in the absence of such evidence.
[40] In
the present matter, the Plaintiff presented no
prima facie
evidence that the prosecution directed her will to prosecute despite
a lack of reasonable and probable grounds to do so. Instead,
when the
docket contents were made known to him in cross-examination, he
conceded that the actions of the prosecutor were justified.
It must
be remembered that as per the discovered documents, the victim
consistently implicated the Plaintiff on a rape charge to
her younger
sister, the schoolteacher, her mother and the police officer. When
the doctor examined the victim on the following
day of the alleged
incident, he noted visible injuries in her genitals. The Plaintiff
never denied the docket contents but simply
averred that he was not
involved in the commission of a rape charge. I conclude that the
evidence presented proves no malice on
the part of the second
Defendant.
[41]
The fact that the matter was struck off the roll at some stage cannot
be equated to failed prosecution. It
is common cause that the rape
charge is pending before a criminal court based on the decision of a
prosecutor to pursue the charges
against the Plaintiff. The last
element for a claim for a malicious prosecution is also lacking.
Claim against the
Minister of Justice and Correctional Services. (third Defendant)
[42]
It has already been established that the Plaintiff was charged with a
schedule 6 offence. The Plaintiff’s
detention after his first
appearance in court was dependent on the Magistrate’s
orders.
[27]
On perusal of the Plaintiff’s particulars of claim, and oral
evidence that was presented I could not find the basis upon
which the
third Defendant was sued. This is also a disquieting feature in the
manner in which the Plaintiff’s case was presented.
In his
heads of argument, counsel for the Plaintiff seems to suggest that
the Magistrate should have removed the matter from the
roll due to
lack of DNA evidence. Counsel’s focus appears to be on
the quantity of evidence that the prosecutor had
when she presented
the Plaintiff before a Magistrate. He seems to overlook the fact that
the quality of evidence at the prosecutor’s
disposal was enough
to withstand the appearance of the Plaintiff before the Magistrate.
[43]
In terms of bail legislation, the court was required to detain the
Plaintiff unless he presented evidence
to show the existence of
exceptional circumstances which in the interest of justice justifies
his release on bail
[28]
.
The Plaintiff testified that he relinquished his right to apply for
bail on more than one occasion until the matter was struck
off roll
due to the absence of witnesses. In summation, the Plaintiff
presented no evidence to prove that the magistrate
who presided in
his case when it was placed on the criminal court’s roll
behaved in an unlawful manner. Having applied my
mind to the evidence
presented by the Plaintiff, I am not persuaded that I could find in
his favour in respect of all claims.
Order
[44] In
the result I make the following order:
1.
The Application for absolution from
the instance is granted in respect of all claims against the
Defendants. The Plaintiff’s
claims are dismissed.
2.
The Plaintiff is ordered to pay
costs.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
APPEARANCES:
Counsel
for the Plaintiff:
Adv
Z. Mqokozo
zolisamqokozo@yahoo.com
Counsel
for the Defendants:
Adv
S.S T Mapekula
No
31 Sisson Street, Fortgale
Instructed
by:
State
Attorney
No
94 Sisson Street,
Mthatha
DATE HEARD:
29 May and 21 June 2023
DATE
DELIVERED:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email. The date and time
for hand-down is deemed
to be 18 July 2023 at 10:00
[1]
Updated
index to Pleadings page 7, At para 5
[2]
Page
12-13 of the updated index bundle, At para 17-18
[3]
Updated
index at page 16 of the particulars of claim, At para 29.
[4]
Act
51 of 1977( the Criminal Procedure)
[5]
Rule
39(13) reads, ‘’ Where the onus of adducing evidence on
one or more of the issues is on the plaintiff and that
of adducing
evidence on any other issue is on the defendant, the plaintiff shall
first call his evidence on any issues in respect
which the onus is
upon him and may then close his case. The defendant, if absolution
from the instance is not granted, shall,
if he does not disclose his
case, thereupon call his evidence on all issues in respect of which
such onus is upon him.’’
[6]
Rule
39(6) of the Uniform Rules provides that at the closure of the case
for the Plaintiff, the Defendant may apply for absolution
from the
instance, in which event the Defendant or an Advocate on his behalf
may address the court and the Plaintiff or an Advocate
on his behalf
may reply. The Defendant or his Advocate may thereupon reply on any
matter arising out the address of the Plaintiff
or his Advocate.
[7]
1976
(4) SA 403 (A)
at
409G – H, see Also
(
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173; Ruto Flour Mills (Pty) Ltd v
Adelson (2)
1958
(4) SA 307 (T)
G
[8]
Marine
and Trade Insurance Co (Ltd) Van der Schyff
1972 (1) SA 26
(A) At
para 39-40
[9]
Osmar
Tyres and Spares CC V adt Security Pty(Ltd)
[2020] 3 All SA 73
SCA
At para 26; Marine & Trade Insurance Co Ltd v Van der
Schyff
1972
(1) SA 26 (A
)
at
37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2).
[10]
See
the discussion in Van Loggerenberg, Erasmus; Superior Court Practice
(Jutastat (e-publications, RS 20, 2022), at d1-530
to D1-531
[11]
Supreme
Service Station v Fox and Goodman (Pty)(Ltd) 1971 (1) ZLR
[12]
Para
34 Plaintiff’s heads of argument
[13]
Minister
of Police and Another v Du Plessis 2014(1) SACR 217 (SCA), At
paras14-17
[14]
1986
(3) SA 568
A AT 589 E-F
[15]
1986
(2) SA 805 (A)
[16]
1988
(2) SA 654 (SE) 658 G-J
[17]
Masethla
v President of the RSA
[2007] ZACC 20
;
2008 (1) SA 566
(CC) At para 23; The Minister
of Safety
and
Security v Sekhoto 2011 (1) SACR 315 (SCA)
[18]
2011
(1) SACR 315 (SCA)
[19]
Procedure
after arrest: Section 50 of the Criminal Procedure Act provides:
’
(1)
(a) Any person who is arrested with or without a warrant for
allegedly committing an offence, or for any other reason, shall
as
soon as possible be brought to a police station or, in the case of
an arrest by a warrant, to any other place which is expressly
mentioned in the warrant’. Section 35 of the Constitution
provides (1) Everyone who is arrested for allegedly committing
an
offence an offence has the right-(1)(d) to be brought before a court
as soon as reasonable possible but not later than –(i)
48
hours after arrest….’
[20]
M
R v Minister of Safety and Security
2016 (2) SACR 540(CC)
at para 39
[21]
Jacobs
v Minister of Safety and Security 2013 JDR 209 (ECG)
[22]
Minister
of Safety and Security v Lincoln
[2020] 3 All SA 341
(SCA) At para
20, Minister of Police v Marula Case No: CA 89/2021, At para 25
[23]
supra
[24]
[2014]
ZASCA 130
;
2015 (1) SACR 597
(SCA) At para 15
[25]
National
Director of Public Prosecutors Ethics- A Practical Guide to the
Ethical Code of Members of the National Prosecuting Authority
[
March 2004],
[26]
Para
1.1.1. (c)
[27]
Minister
of Police and Another v Sipho Zweni, (842/2017) [2018] ZASCA 97(1
June 2018 (not reportable)
[28]
Section
60
(11)(a) of the
Criminal Procedure Act 51 of 1977