About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 193
|
|
Mofokeng and Others v Minister of Police and Another (3953/2019) [2022] ZAFSHC 193 (24 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3953/2019
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
THIEHO
WILLIAM MOFOKENG
1
st
Plaintiff
JACOB
SAOANA LETUKA
2
nd
Plaintiff
MAQAESA
OSIAH SEHLAKO
3
rd
Plaintiff
TLADINYANE
DAVID TLALE
4
th
Plaintiff
and
THE
MINISTER OF POLICE
1
st
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
2
nd
Defendant
CORAM:
MTHIMUNYE,
AJ
HEARD
ON:
26,
28
JANUARY, 22 MARCH & 26 MAY 2022
DELIVERED
ON:
24
AUGUST 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 13:00 on 24 August 2022
Introduction
[1]
This is a delictual claim against the Minister of Police and the
National
Director of Public Prosecutions for an alleged unlawful
arrest, unlawful detention and malicious prosecution respectively.
This
claim was brought by four plaintiffs viz Thieho William
Mofokeng, Jacob Saoana Letuka, Osiah Sehlako Maqaesa and David Tlale
Tladinyane.
Thieho William Mofokeng, the first plaintiff, has since
become deceased and Counsel for the plaintiffs, at the onset,
requested
that Mr Mofokeng’s claim be postponed
sine die
pending the finalisation of his deceased estate. The matter proceeded
in respect of the second, third and fourth plaintiffs, to
whom I
refer throughout this judgment as the plaintiffs, unless the context
indicates otherwise.
[2]
The plaintiffs were arrested at different times
viz
12 May
2013, 23 May 2013 and 5 May 2014 and were collectively charged with
murder, attempted murder, robbery with aggravating circumstances
and
housebreaking with intent to steal and theft. At their first
appearance they were all denied bail in the lower court. Their
case
was subsequently moved to this court where they again applied for
bail in February 2017. The second and third plaintiffs were
granted
bail whilst the fourth together with one Thabang Makoko Mmaki
(“Mmaki”), who was the first accused were denied
bail.
All of them were subsequently discharged by my brother Mathebula J in
terms of Section 174 of the Criminal Procedure Act
51 of 1977 (“the
CPA”).
[3]
On 27 August 2019, the Plaintiffs issued summons suing the Minister
of
Police and the Director of Public Prosecutions for Unlawful
Arrest, Detention and Malicious Prosecution respectively, claiming a
total of R4 000 000.00 (Four Million Rand) for
contumilia
,
emotional stress and psychological trauma, loss of amenities of life,
loss of income, and general damages.
[4]
At the beginning of the trial, the parties agreed that the
Plaintiff’s
case be dealt with first and that there would be no
separation between merits and quantum. This court was ceased with
making a
determination on both. The plaintiffs have also prayed for
costs for the duration of this trial in the event that this court
finds
in their favour. For this reason, I deem it necessary provide a
chronological history of this matter prior to summarising the
evidence.
[5]
The hearing was set down to commence on 25 January 2022, on which day
both Counsels requested that the matter be stood down to 26
th
January 2022 as the plaintiffs’ Counsel had just received the
records of the bail proceedings and needed time to read through.
[6]
The matter was then heard on 26
th
and 28
th
January 2022 at the end of which the plaintiffs closed their case. It
was then postponed to 22
nd
, 23
rd
and 25
th
March 2022 for the defendant’s case. Although the defendants
had stated that they would call three (3) witnesses; on 22
nd
March 2022 they called only one (1) witness and closed their case. By
agreement from both Counsels, the court then directed the
plaintiffs
to file their heads of argument by 4
th
April 2022 and the
defendants by 8
th
April 2022. A date for arguments would
be communicated to both parties once both heads have been filed.
[7]
Heads of argument were finally filed by the Plaintiff’s on 25
th
April 2022 and by the Defendants on 03
rd
May 2022. To both
Counsels I am most grateful as I refer to their heads in this
judgment. Following some logistical glitches, arguments
were finally
heard on 26
th
May 2022, at which stage this judgment was
then reserved. I deemed this explanation important as Counsel for the
plaintiffs has
asked this court for costs for the 6 days that were
allocated for the hearing of this matter, notwithstanding that the
last two
days were not utilised.
[8]
I now turn to deal with the summary of evidence. The second
plaintiff,
Mr Letuka Jacob Saona, testified that on Saturday 3
rd
May 2014, he was herding his father’s sheep in the veld when
two police vans arrived between 11:00am and 13:00pm. A number
of
police officers, including a Mr Mohale, alighted the vehicles and
pointed firearms at him, demanding that he lies down, which
he did.
They handcuffed him, put him in the van and drove him to Namahadi
Police Station. They did not ask him his name, neither
did they give
him any information about who they were and why they were
arresting him, neither did they inform him of his rights.
[9]
It was at the Police Station that they asked him his name, registered
him, removed his shoe laces and belt and took him to a cell which he
shared with ten other people. The cell had no water and the
toilet
was not flushing. As a result, they could only pass urine but were
not able to empty their bowels. He slept on the cement
floor for two
days.
[10]
At the time of his arrest he was taking lessons to obtain a Code 14
Drivers Licence and
attempting to upgrade his matric results to gain
entrance to a college. As a result of the arrest he did not go to
college neither
did he obtain his Driver’s licence.
[11]
He was charged on Sunday 4
th
and appeared in court on
Monday 5
th
May 2014 for the first time where he was
represented by a practitioner from the Legal Aid of South Africa. It
is only in court
that he was informed that he was arrested for
murder, attempted murder and other charges. The matter was postponed
to the following
day i.e. 6 May 2014 where he was then joined with
other accused including the first, third and fourth plaintiffs who
had been arrested
in 2013. Other than the fourth plaintiff who is his
brother, he did not know the other co-accused in the criminal trial.
[12]
On the next appearance, he applied for bail which was opposed by the
first and second defendants,
resulting in bail being denied on the
basis that he was a flight risk. After the bail was denied he was
taken to Harrismith Correctional
Services. In February 2017 he,
together with the co-accused brought a second bail application and he
and the third plaintiff were
granted bail whilst two others,
including the fourth plaintiff were denied.
[13]
On 20 June 2017, he was discharged in terms of section 174 of the
CPA. He stated that he
was very hurt and regrets the time wasted
whilst he was in prison. After his release, no one
ever
approached him to explain or apologise for what happened.
[14]
Under cross-examination, he confirmed that he was arrested a year
after his brother,
who is the fourth plaintiff. Counsel for
the defendants put it to him that if police wanted to arrest him for
nothing, they would
have arrested him together with his brother.
Counsel for the Defendant further contended that at the time of
arrest, Mr Saoana
was informed of his rights and the reason for his
arrest as his signature appears on the warning statement and that he
had asked
to speak in court. In this regard he referred him to his
warning statement where he stated that the police had told him he was
arrested because he was a suspect in a murder case. Mr Saoana denied
this and explained that when he signed the warning statement,
he was
never told what it was, neither was he ever given details of the
murder charges and whom he had murdered. He signed the
paper because
he was instructed to do so but no one explained to him what he was
signing.
[15]
The third plaintiff, Mr Maqaesa Osiah Sehlako testified that in 2013
he was working as
a builder and was also doing deliveries for people
who bought building materials from the warehouse. On 12 May 2013 at
about 15:00pm,
as he was driving home, police officers Messrs Mohale
and Tsotetsi stopped his vehicle and asked to search it. They then
told him
they were arresting him for murder. When he asked what
murder he was told they would talk at the police station.
[16]
Without informing him of his rights, he was handcuffed, put in the
police car and taken
to Namahadi Police Station. Nothing more was
said. At the police station he was put in a cell where he stayed for
two days before
he was charged for murder. When he asked for details
on this murder, he was told he will speak in court. His first
appearance was
on 15
th
May 2013, the third day after he
was arrested.
[17]
From the day of his arrest, he was kept in a cell which he shared
with 6 other people.
The cell was filthy and had a toilet that did
not flush as there was no water. He was given a torn brown blanket
and sponge to
sleep on the floor. The shower was not working. They
were given 5 litres of water to bath with and 10 litres to flush the
toilet
with.
[18]
On 15 May 2013, he appeared with the first and the fourth plaintiffs
and were charged with
Murder and House breaking. He was represented
by an attorney from Legal Aid who informed him that they should bring
a bail application
in seven days. After the first appearance he was
taken to Kroonstad correctional services and was brought back to
appear after
about 7 days when the matter was remanded for further
investigations. At the subsequent appearance, he applied for bail
which was
opposed by the defendants and was refused on the basis that
he was a flight risk.
[19]
After a while at Kroonstad correctional services, he was moved to
Harrismith
correctional services. He appeared a number of times. In
February 2017 after the matter was moved to this court he, together
with
the second, the fourth plaintiff and one Thabang Makoko Mmaki,
who was the first accused applied for bail. He and the third
plaintiff
were granted bail, whilst the fourth plaintiff and Mr Mmaki
were denied. On 20 June 2017 he was acquitted in terms of Section 174
of the CPA. After his release, no one approached him to explain or
apologise for what happened.
[20]
At the time of his arrest, he was staying in his house with his
partner and their child,
who at that stage was crawling. He was the
breadwinner for his family. Upon return from prison, his partner had
died, and the child
was staying with his aunt in Harrismith. His
house had been vandalised and he had to ask for shelter from
relatives. This has hurt
him deeply. In 2018 he was able to take his
child back and they now live together.
[21]
Under cross examination, he was asked how he knew the other
co-accused. He explained that
he did not know the first plaintiff, he
met him for the first time when they were in the cells and appearing
in court. He knew
the fourth plaintiff from selling sheep at Savemor
as he used to load and deliver sheep for his customers. He did not
know Makoko
at all and had never interacted with him before. He met
him for the first time in the dock in court.
[22]
Under cross-examination, he stated that Messrs Mohale and Tsotetsi
assaulted him and others
in the police cells telling them to agree to
the murder. To this day he has a pain on his knee. Counsel for the
defendant’s
put it to him that he had been assaulted by members
of the community because they believed he was the one terrorising the
community.
In response, he confirmed that he was assaulted by the
community but that passed. He did not terrorise the community, they
assaulted
him when the police dropped him off as that created an
impression that he was the culprit. He even laid charges against
members
of the community who assaulted him and he did inform his
Legal Aid attorney of all this.
[23]
The Defendants’ Counsel under cross examination put it to the
third plaintiff that
he was informed of the reason for arrest and all
charges as he confirmed same on his warning statement dated 31 May
2013 where
his signature, which he confirmed was his, appeared. The
third plaintiff explained that he did not even know what a warning
statement
was, he was just told to sign without anything being
explained to him.
[24]
Although it is common cause that the second and third plaintiffs were
granted bail in February
2017, I consider it prudent to mention
herein that the actual date of bail was never mentioned in the
papers, nor during evidence.
Neither was it stated in Counsel’s
heads of argument. This court could not find bail receipts in the
dockets or any document
submitted to the court. For this reason, the
date bail was granted to the second and third plaintiff is referred
to only as February
2017.
[25]
The fourth Plaintiff, Mr Tladinyane David Tlale testified that on 23
May 2013 he was sleeping
at home with his brother, the second
plaintiff, when a number of police officials, including Mr Mohale
arrived in the early hours
of the morning. The police woke him up,
handcuffed him and told him they would talk to him at the police
station. His brother had
to help him put his shoes on since he was
already handcuffed. He was taken to Namahadi Police station. He left
his brother there
and only saw him after a year when he himself was
arrested.
[26]
On arrival at the police station, the police decided to drive back
home with him, got inside
his rooms and collected an amplifier he had
borrowed two days before his arrest from the first plaintiff, who is
now deceased.
He had borrowed the amplifier from the first plaintiff
because his music system was damaged and his intention was to return
it
after his was fixed. They never told him the relevance of the
amplifier other than saying it belonged to the first plaintiff.
[27]
Back at the Police Station, he was given some paper to sign without
any explanation of
what it was. Only in the cells did one inmate tell
him that those were his rights. He cannot read Afrikaans or English
and no one
explained the document to him.
[28]
The cell he was kept in, which he shared with 7 or 8 other people who
were unknown to him,
was filthy and smelly. He slept sitting on the
floor as he was given no blankets to sleep in. The toilet was blocked
and did not
flush. Everyone had to relieve themselves in front of
others. There was no privacy. There was no water to wash hands. They
were
given some pieces of bread to eat.
[29]
On Saturday 25 May 2013, two days after his arrest, Mr Mohale told
him to sign another
document and when he asked what it was he was
told he would talk in court and was threatened with beatings if he
did not sign.
His first appearance was on 27
th
May 2013
where he appeared jointly with the first and third plaintiffs, whom
he knew. He lived in the same neighbourhood with the
first plaintiff
and he is the one who had loaned him the amplifier. He knew the third
plaintiff from delivering livestock for customers.
In court he
remembers hearing a charge of murder, amongst others. He also was
represented Legal Aid. They asked for bail and were
told the matter
is remanded for seven days. Thereafter each time they tried to
request bail they were told the detective was not
available. It was
approximately a year later when the bail application was heard and
was opposed by the defendants. Bail was denied
on the basis that he
was a flight risk per Mr Mohale’s opposing testimony at the
bail application. His first bail application
was in the lower court
and the second in the high court three years later, both were denied.
He was detained from arrest to 20
June 2017 when he was discharged.
[30]
After the first appearance he was detained at Kroonstad Correctional
Services for a year,
and thereafter he was moved to Harrismith
Correctional Services until 20 June 2017 where he was discharged in
terms of
Section 174
of the
Criminal Procedure Act. He
did not
testify at the trial, only police officers testified but none of them
told the court what he did wrong, including the prosecutor.
[31]
Upon his release, he found all his livestock stolen and had to start
life afresh. No one
approached him to apologise or explain. In prison
he was traumatised as there were always fights. He is hurt and
aggrieved.
[32]
During cross-examination, Counsel for the defendant attempted to put
it to the fourth plaintiff
that the amplifier was stolen from the
complainant, this statement was withdrawn when Counsel for the
plaintiff objected and explained
that in the criminal trial, the
finding was that there was no nexus between the stolen amplifier and
the one that was collected
by the police from the fourth respondent’s
house, to which Counsel for the defendants conceded.
[33]
At the end of each plaintiff’s evidence, Counsel for the
defendants put it to them
individually that in the criminal trial,
the prosecutor and the defence attorney had agreed that the offences
they were charged
with fell under Schedule 6 therefore the reason
they were refused bail was because they failed to adduce evidence to
the existence
of exceptional circumstances allowing him to be
released on bail. The plaintiffs individually stated that they were
never made
aware of this as their legal representatives never
discussed it with them.
[34]
Mr Lefa Victor Rathaba was the defendants’ sole witness. He
testified that he was
the prosecutor in the case from the plaintiffs’
first appearances until the matter was transferred to the High Court.
The
plaintiffs were facing charges of Murder, Attempted Murder,
Possession of Unlicensed Firearm, Housebreaking with intent to steal
and theft.
[35]
He said he and Mr Mokhachane, the Legal Aid Attorney representing the
plaintiffs agreed
that the charges fell under Schedule 6. The
plaintiffs thus bore the onus to prove the existence of exceptional
circumstances allowing
them to be released on bail, which onus they
failed to discharge hence the bail was denied. When asked for clarity
in terms of
this agreement he said there was no objection from the
Plaintiff’s representative that the charges were serious and
they
fell under Schedule 6. They also agreed that the State had a
prima facie
case.
[36]
He stated that after their first appearances, the plaintiffs we
detained in terms
of the court order. The matter was subsequently
transferred to the High Court and he believed it was for trial as
bail had already
been denied. He was not aware that they were granted
bail by the High Court.
[37]
Although in evidence in chief he said he had prosecuted the case
until it was transferred
to this court, under cross examination, he
said whilst the case was being remanded in the District court, there
were instances
where the prosecutors were being rotated so there may
have been appearances he was not part of.
[38]
When asked about his reasons for enrolling the docket for
prosecution, he said it was the
Control Prosecutor is the one who
took the decision to enrol the docket and charges against the
plaintiffs after screening the
documents and reading the dockets. He
was not part of this decision but only received the docket after it
was enrolled.
[39]
Under cross-examination, he conceded that it was the State that
proposed that the bail
application and charges should fall under
Schedule 6 and the defence agreed. When asked what would the State
have done had the
defence refused he said the State would have
persisted and proceeded on Schedule 6. When it was put to him that
the plaintiffs
had testified that they were never consulted by their
representative on Schedule 6, he said he did not know about that.
[40]
Counsel for the plaintiffs asked if he was aware that there were at
least seven (7) dockets
on the case. He said he could not recall.
When asked if he had read the dockets and complainants’
statements and found therein
a link to the second, third and fourth
plaintiffs, Mr Rathaba was silent for a notable time before he said
he believes so.
[41]
He referred to the witness statement where a certain ‘Moetsuwa’
and his aliases
were identified and described as ‘Lesotho
Nationals’. Noting that none of the plaintiffs were ‘Moetsuwa’
he said what linked them was that they were ‘Lesotho
nationals’. When told that of the three plaintiffs before
court,
only one i.e. the fourth plaintiff is a citizen of Lesotho, he
said he could not dispute that. Counsel for the plaintiffs put it
to
him that there was nothing in the complainants’ statements
linking the plaintiffs to the offenses with which they were
charged
hence they were discharged by the criminal court after finding no
evidence against them. In a resigned manner, he pointed
out that an
acquittal can occur for a number of reasons.
[42]
Mr Rathaba further said the other link was the firearm that was found
in possession of
the plaintiffs. When informed that the gun was found
from Thabang Makoko Mmaki (“Mr Mmaki”) who was the first
accused
in the criminal matter and is not part of the plaintiffs
before court he just said ‘ok’.
[43]
During re-examination, Mr Rathaba was referred to Mr Mmaki’s
warning statement where
he stated that he was with Maseru, Tladinyana
and Kaetsane when they committed a series of offences. In re-cross
examination which
I allowed since new averments were made during
re-examination, Counsel for the plaintiff’s put it to Mr
Rathaba that there
were issues of admissibility with the implication
of an accused by a co-accused and he could not dispute that. When
asked why he
did not refer to this statement under the first
cross-examination, Mr Rathaba waffled and could not remember which
documents he
read when preparing for criminal trial against the
plaintiffs.
[44]
The evidence of the plaintiffs corroborated each other’s
versions in many respects
e.g. not being told of their rights at the
time of arrest and reasons thereof, being forced to sign documents
without any explanations,
the conditions of the cells where they were
kept and their knowledge and non-knowledge of each other when they
were in custody
and meeting in court. None of the plaintiffs that
testified contradicted themselves or avoided answering any question.
They were
all calm, honest, reliable and I found them to be credible
witnesses.
[45]
The defendants’ witness on the other hand was cagey and
evasive. He could not remember
the documents and critical information
pertaining to why the plaintiffs were prosecuted and where he could
remember, he shifted
the blame either to the Control Prosecutor or
the court. Although he confirmed being the prosecutor throughout the
case until it
was referred to the High Court, he took no
responsibility for any oversight or error that could be attributable
to the prosecution
in respect of what transpired in the criminal
matter. It was clear that he either did not read the dockets or did
not bother to
apply his mind thereto when he did. For him to concede
that the link to the plaintiffs was that they were Lesotho nationals
when
only one of them was shocking. It became clear from his
testimony that from the onset of the criminal investigations there
was
no link or evidence against the plaintiffs to justify them being
charged. His evidence did not do much for the defendant’s
case
other than appear to be trying very hard to hide their remiss work
and shift the blame.
[46]
I will now deal with the issue of the arrest. At the end of the
Plaintiff’s case,
Counsel for the defendants brought it to the
court’s attention that the issue of arrest was not properly
pleaded in the Plaintiff’s
papers in that the Particulars of
claim contained no claim for arrest. He pointed out that although the
arrest itself is not in
dispute, at the time the action was brought,
the claim pertaining thereto had prescribed. Counsel for the
plaintiffs conceded that
they would have a challenge with
prescription if a special plea was brought by the defendants. In the
result the plaintiffs abandoned
the claim for unlawful arrest.
[47]
For purposes of completeness, it is noteworthy that the plaintiffs
were arrested between
12
th
May 2013 and 3
rd
May
2014. The defendants admit that the plaintiffs were arrested without
a warrant or arrest. Their first appearances were between
14 May 2013
to 5
th
May 2014. Summons were issued on 27
th
August 2019, five years after the arrest took place.
[48]
Notwithstanding prescription, Counsel for the plaintiffs requested
this court to make an
advisory finding on the lawfulness of the
arrest as this might have an effect on the claim for unlawful
detention. I do not agree
with Counsel for the plaintiffs in this
regard, the lawfulness or otherwise of the arrest does not
necessarily render the subsequent
detention unlawful or otherwise.
This point was dealt with by the Appellate Division in
Isaacs v
Minister van Wet en Orde
1996 (1) SACR 314
(A)
as follows:
“
So I believe that where
section
50(1)
speaks of someone who is “arrested”, it is not
limited to a lawful arrest. It includes someone who, under an attempt
to exercise the power of arrest, was brought under the arrestor’s
control…”
[39] The Appellate
Division thus concluded that competence afforded by
s 50(1)
of the
Criminal Procedure Act was
not dependent on the prior arrest being
lawful. It found that a detainee’s continued detention pursuant
to an order of court
remanding him in custody in terms of
s50
(1) of
the
Criminal Procedure Act may
be lawful, even though the detention
followed from an unlawful arrest.
[49]
Also, in my view, the concession that the claim arising from
the arrest has prescribed
puts the issue to rest. In any event the
arrest itself is not in dispute. It escapes this court why it should
be burdened with
making a ruling on the lawfulness of an issue that
is not before it. For this reason, I will make no finding on the
lawfulness
of the arrest.
[50]
I now turn to deal with the plaintiffs’ detention. The
plaintiffs claim that their
detention was unlawful and that the
Defendants were responsible for the detention and as such must be
held liable for damages.
The Defendants on the other hand have
contended that the detention was in terms of
Section 50(1)(a)
of the
Criminal Procedure Act and
was thus lawful.
[51]
It must be clarified that there are two distinct periods of detention
the lawfulness and
the liability of which this court is called upon
to determine. The first being from the date of the plaintiffs’
arrest to
first appearance; and the second one is from the first
appearance to the date of release be it on bail or on discharge.
[52]
With regards to the first period of detention, much as it is trite
that the first period
of detention cannot be separated from arrest as
one is as a result of the other, it is inarguable that these are two
different
claims and they arise at different times. A claim for
arrest arises on arrest whilst a claim for detention arises on
release and
the plaintiffs were released between February and 20 June
2017 respectively. I accept that when summons was issued, the claim
for
the first period of detention had not prescribed.
[53]
The defendants have further argued that the plaintiffs did not plead
pre and post first
appearance detention with sufficient particularity
neither was there an amendment to establish this claim. On reading
the papers,
I established that on 29 June 2021 the plaintiffs filed
their notice of amendment in terms of
Rule 28(10)
and their amended
summons and particulars of claim on 14 July 2021. In my view, the
amendment clearly articulated the basis of
the claims for detention
and malicious prosecution. I must therefore dismiss the defendant’s
contention in this regard.
[54]
The defendants have further argued that the plaintiffs were charged
with Schedule 6 offences,
and they bore the onus to adduce
exceptional circumstance allowing them to be released on bail in
accordance with
Section 60(II)(a)
of the CPA. They failed to
discharge this onus hence bail was denied. As a result thereof, the
defendants submit, their further
detention was as result of a court
order and they as such cannot be held liable.
[55]
It is trite that the onus to prove the lawfulness of the detention
rests on the defendants
–
Zealand v Minister of Justice and
constitutional Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC).
In
Mahlangu and Another v Minister of Police
[2021] ZACC 10
;
2021 (7)
BCLR 698
(CC)
at
para 22
the Constitutional Court held
“
It follows that in a claim
based on the interference with the constitutional right not to be
deprived of one’s physical liberty,
all that the Plaintiff has
to establish is that the interference has occurred. Once this has
been established, the deprivation
is prima facie unlawful and that
the defendant bears an onus to prove that there was justification for
the interference. In this
matter, the arrest was not in dispute; it
was therefore common cause that the Respondent bore the onus to prove
the lawfulness
thereof.”
[56]
The Plaintiffs claim that the defendants had no reasonable and/or
probable cause for laying
charges against them nor did they have any
reasonable belief in the truth of the information at their disposal
and the charges
so initiated. The defendants argue that the detention
of the plaintiffs post the first appearance was in terms of the court
and
that bail was refused due to the failure by the plaintiffs to
adduce exceptional circumstances for them to be released on bail.
On
this basis, they deny liability for detention of the plaintiffs.
[57]
Evidence which was undisputed by the defendants was led to the effect
that the third plaintiff
was arrested on 12 May 2013 and only
appeared in court on 15 May 2013. Similarly, that the fourth
plaintiff was arrested on 23
May 2013 and brought before court on 27
May 2013. Counsel for the plaintiff argued the third and fourth
plaintiffs were brought
to court outside of the statutory 48-hour
period for their first appearances and has asked the Court to make a
finding in this
regard. This aspect was never pleaded and as rightly
argued by Counsel for the defendants, no claim can arise from the
Heads of
argument. For this reason, I will make no such finding.
[58]
The defendants’ contention that the plaintiff’s detention
post first appearance
was as a result of a court order and as such
cannot be held liable necessitates some interrogation. The
plaintiffs’ bail
application was opposed by the defendants on
the basis that they were a flight risk, and was denied on that basis.
It has been
stated that them being branded a flight risk was because
they were ‘wrongfully’ perceived to be Lesotho nationals.
This baseless conclusion has been discussed under evidence and
requires no further condemnation. Even prior to having to contend
with the defendants in a fight for bail, the plaintiffs had to cross
a hurdle of being charged with Schedule 6 offences and thus
bearing
the onus of convincing the court to grant bail. This was despite the
fact that there was no link between them and the offences
they were
charged for. It was clear from the evidence of the witness for the
defendants that he did not apply his mind to the contents
of the
docket. In
Minister of Police and Another v Du Plessis
2014 (1)
SACR 217
(SCA)
, the court, in para 12, the Supreme Court of
Appeal addressed the influence of the defendants in the decision to
further detail
the plaintiffs and held:
“…
As explained by Harms
DP in Sekhotho’s case, the relevant decision is no longer that
of the police but of the court. But before
the court’s decision
comes the decision of the prosecutor to charge each accused. Mr
Pretorius was the prosecutor, he studied
the information furnished to
him by the police and decided to proceed against all the accused,
including both plaintiffs. He had
no basis for proceeding against the
first plaintiff”.
[59]
In
Woji v Minister of Police
[2014] ZASCA 108
;
2015 (1) SACR 409
(SCA),
referred to in approval by the Constitutional Court in
Mahlangu and Another v Minister of Police (CCT 88/20)
[2021] ZACC
10
;
2021 (7) BCLR 698
(CC);
2021 (2) SACR 595
(CC),
the Supreme
Court of Appeal dealt with the liability arising out of such
influence and held:
“
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 if through the prosecutor”
In
S v Mahlangu (supra)
the Constitutional Court, in para 18 held
that:
“
Although the lawfulness or
otherwise of a court order for an arrested person’s judicial
detention depends primarily on the
conduct of the prosecutor and/or
magistrate, the police can incur liability for damages for detained
persons being denied their
freedom after their appearance before a
court, notwithstanding the court having ordered such detention”
[60]
As stated in the foregoing paragraphs, Mr Rathaba had no basis for
proceeding against the
plaintiffs in this matter. Yet he did so, as a
result the plaintiffs were in detention for years. They were denied
bail on the
information provided by members of the first defendant
that they were flight risks, which assertion by the defendants was
without
substance. I am persuaded that in this case, causality
between the conduct of the police officials and further detention of
the
plaintiffs has been established for the defendants to be held
liable for the plaintiff’s detention post first appearance as
per
De Klerk v Minister of Police
2018 (2) SACR 28
(SCA) and
2020
(1) SACR 1
(CC)
.
[61]
I now turn to consider the claim for malicious prosecution. The onus
to prove malicious
prosecution rests with the plaintiffs. To this
end, the plaintiffs must prove that (1) the defendants set the law in
motion (instigated
or instituted the proceedings); (2) the defendants
acted without reasonable and probable cause; (3) the defendants acted
with ‘malice’
(or
animo inuriandi)
; and (4) the
prosecution has failed. These requirements were laid out in
Minister
of Justice and Constitutional Development and Others v Moleko
2009
(2) SACR 585
(SCA) ([2008]
3 All SA 47
;
[2008] ZASCA 43)
para 8.
[62]
A submission was made by Counsel for the plaintiffs for this court to
consider the judgment
by Mathebula J in terms of which he granted the
plaintiffs a discharge in terms of
Section 174
of the CPA. The
Defendants objected to this on the basis that it is an opinion that
has no bearing on these proceedings and is
excluded based on the
Hollington v Hewthorn Rule, which precludes the court to rely on
criminal conviction in subsequent civil
proceedings. In terms of this
rule, a finding of a criminal court has no probative value in
subsequent civil action as such inadmissible
as evidence. The
plaintiffs argued that the Hollington rule applies in subsequent
civil proceedings following a criminal conviction
which is not the
case
in casu
.
[63]
In my view this is relevant is as far as proving the second and the
fourth requirements
for malicious prosecution i.e. that the
defendants acted without reasonable and probable cause, and that the
prosecution failed.
For this reason, it is my considered view that
the judgment by my brother Mathebula J is, to the extent that it
proves the above,
is one of the relevant factors and as such I have
taken it into consideration. It is important to mention that an
acquittal in
itself, does not necessarily mean the arrest and the
detention were unlawful. The test for lawfulness of a prosecution is
a
prima facie
case whereas the test for an acquittal in terms
of
Section 174
of the
Criminal Procedure Act is
whether or not there
is before court, evidence upon which a reasonable person / court may
convict. So the arrest may have been
lawful and the State could as
well have had a
prima facie
case and still fail to present
evidence to secure a conviction, in which case the accused would be
acquitted.
[64]
I now consider the questions to be satisfied for the plaintiff to
prove malicious prosecution.
It cannot be denied that by arresting,
detaining and instituting proceedings against the plaintiffs, the
defendants set the law
in motion.
In casu,
on the basis of the
evidence presented before me, I am persuaded the State had no
prima
facie
case against the plaintiffs in the first place. It is
common cause that the prosecution failed. The plaintiffs were
discharged.
One outstanding element that I must now consider is
whether or not the defendants acted with malice ‘
animo
iniuriandi’
.
[65]
In
Minister of Police and Another v Du Plessis
2014 (1) SACR 217
(SCA)
, the court dealt with the prosecutors and arresting
officers who fail to apply their minds to the docket
and stated that where such conduct leads to further prosecution after
it was clear that there were no reasonable of a successful
prosecution, it amounts to a failure of justice and accordingly can
be regarded as malicious proceedings. In para 12, the court
stated:
“
As explained by Harms DP in
Sekhoto’s case the relevant decision is no longer that of the
police but of the court, but before
the court’s decision comes
the decision of the prosecutor to charge each accused. Mr Pretorius
was the prosecutor, he studied
the information furnished to him by
the police and decided to proceed against all the accused, including
both plaintiffs. He had
no basis for proceeding against the first
plaintiff.”
[66]
In
Patel v NDPP
2018 (2) SACR 420
, Ledwaba DJP dealt with the
issue of malicious prosecution and prosecutorial authority and in
para 24 stated:
“
[24] Courts are not
overly eager to limit or interfere with the legitimate exercise of
the prosecutorial authority. However,
a prosecuting authority’s
discretion to prosecute is not immune from scrutiny of a court which
can intervene where such discretion
is improperly exercised.”
…
[27] A prosecutor should
assess whether there sufficient and admissible evidence to provide a
reasonable prospect of
successful prosecution, otherwise the
prosecution should not commence…”
[67]
Having regard to the evidence of the Plaintiffs as well as of the
Defendant, I am persuaded
that from the very onset, there was no link
between the plaintiffs and the alleged offences for which they were
arrested, detained
and prosecuted. The witness for the defendants
told this court at some point that the only link was that they were
Lesotho nationals
which turned out not to be true in respect of the
two plaintiffs. Had the prosecutor applied his mind to the contents
of the docket,
he would not have commenced with the prosecution, let
alone drag it for years whilst the plaintiffs remained in custody.
[68]
The second plaintiff was detained post first appearance from 05 May
2014 to February 2017;
the third plaintiff was detained post first
appearance from 15 May 2013 to February 2017 whilst the fourth
plaintiff was detained
from 27 May 2013 to 20 June 2017. During all
these times, there was nothing new that had not been there at the
onset of the prosecution.
The defendants could and should have halted
the prosecution earlier, but persisted to the end, with not a shred
of evidence implicating
the plaintiffs until the plaintiffs were
acquitted following an application in terms of
Section 174
of the
CPA, which application is brought at the end of the state’s
case. I am satisfied that, on the balance of probabilities,
the
defendants acted with
animo iniuriandi
and a claim for
malicious prosecution has been proven.
[69]
In the assessment of damages, I have been guided by the Supreme Court
of Appeal in
Minister of Safety and Security v Seymour
2006 (6) SA
320
(SCA) 326
at para 17 and 20:
“
[17] The assessment of
awards of general damages with reference to awards made in the
previous cases is fraught with difficulty.
The facts of a particular
case need to be looked at as a whole and a few cases are directly
comparable…
…
[20] Money can never be
more than a crude
solatium
for the deprivation of what, in
truth, can never be restored and there is no empirical measure for
the loss. The awards I have
referred to reflect no discernible
pattern other than that our courts are not extravagant in
compensating the loss. It needs also
to be kept in mind when making
such awards that there are many legitimate calls upon the public
purse to ensure that other rights
that are no less important also
receive protection.”
[70]
It is an established principle that the longer the detention, the
more the courts are inclined
to grant a holistic award for damages
rather than a day-by-day consideration. In
Minister of Safety and
Security v Augustine
2017 (2) SACR 332
, the Supreme Court of
Appeal at para 25 stated that the amount to be awarded for general
damages is not susceptible to precise
calculation but arrived at in
the exercise of a broad discretion.
[71]
The individual impact of the arrest, detention and prosecution must
be taken into account.
The plaintiffs have testified on the
conditions they were subjected to in the cells where they were
initially kept as well as the
trauma they had to endure in prison.
These need not be repeated herein.
[72]
I now turn to deal with the issue of costs. The Plaintiffs have asked
for costs including
costs of the two days on which the matter was not
heard. They have argued that the defendants never informed them that
they will
no longer call 3 witnesses but only 1. As a result, they
have booked the accommodation for the three days i.e. 22
nd
,
23
rd
and 25
th
March 2022. The principles
to awarding costs are trite. They are firstly that unless expressly
otherwise enacted, the granting
of costs falls within the discretion
of the court; secondly that generally, costs follow the result, i.e.
they are awarded in favour
of the successful litigant. A cost order
in favour of the successful party is further to ensure that the
successful litigant is
not out of pocket in respect of expenses
caused to him or her by the losing party’s approach to
litigation –
Nel v Waterberg Landbouwers Kooperatiewe
Vereeniging
(1949) AD 597
at 608.
[70]
Counsel for the plaintiffs requested costs including costs of
accommodation for the two days
that were not used i.e. the 22
nd
and 25
th
of March 2022. In exercising my judicial
discretion, I am not convinced that granting these costs would be
appropriate. I hold
a view that the plaintiffs’ counsel would
have been able to cancel the accommodation and recoup the costs,
especially because
the matter was finalised just before lunch on day
one of the final three days. Similarly, with travelling arrangements,
flight
tickets could have been moved forward. In any event
plaintiff’s counsel would still have to back to Gauteng
regardless of
when the matter would have been finalised. For this
reason, I am not inclined to grant the travelling and accommodation
costs for
the 23
rd
and 25
th
March 2022.
[71]
In the result, I make the following order:
1.
The claim in respect of the First Plaintiff is postponed
sine die.
2.
The defendants shall pay to the plaintiff’s the following
amounts as compensation:
3.
Second Plaintiff
3.1.
An amount of R1 300 000.00 (One Million Two Hundred Rand)
for the entire
period of detention.
3.2.
An amount of R250 000.00 (Two Hundred and Fifty Thousand) for
malicious prosecution.
4.
Third Plaintiff
4.1.
The third Plaintiff, an amount of R1 400 000.00 (One
Million Four Hundred
Rand) for the entire period of detention.
4.2.
An amount of R250 000.00 (Two Hundred and Fifty Thousand) for
malicious prosecution.
5.
Fourth Plaintiff
5.1.
An amount of R1 400 000.00 (One Million Four Hundred Rand)
for the entire
period of detention.
5.2.
An amount of R250 000.00 (Two Hundred and Fifty Thousand) for
malicious prosecution.
6.
The defendants shall pay interests at the applicable legal rate on
the said amount
from 14 (fourteen) days
from
the date of judgment t
o the date of payment.
7.
The defendants shall pay the plaintiffs’ agreed or taxed costs,
including
costs of Counsel, travel and accommodation for 4 days.
D.P.
MTHIMUNYE, AJ
Appearances:
For
the Plaintiffs :
Adv.
C
Zietsman
Pretoria Society of Advocates
Instructed
by
Loubser Van Wyk
Inc
For
the Defendants :
Adv.
L
Bomela
Bloemfontein Society of Advocates
Instructed
by
Office of the State
Attorney
Bloemfontein