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[2022] ZAFSHC 240
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Miya v Minister of Police and Another (248/2020) [2022] ZAFSHC 240 (13 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 248/2020
Reportable:
NO
Interest
to other Judges: YES
Circulate
to Magistrates: YES
In
the matter between:
MAKOELE
ENOCH MIYA
Plaintiff
and
THE
MINISTER OF POLICE
First
Defendant
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Second
Defendant
JUDGMENT
CORAM:
NAIDOO
J
HEARD
ON:
15,16
and 18 March 2022. Heads of Argument filed 4 May 2022
DELIVERED
ON:
13 SEPTEMBER 2022
INTRODUCTION
[1]
The plaintiff’s claims in this matter are founded in the
actio
iniuriarum
, which is action for the recovery of non-patrimonial
damages. The plaintiff sued the defendants for damages he suffered as
a result
of his being wrongfully and unlawfully arrested and detained
in connection with a criminal charge of Rape. His claim included
damages
arising from what he alleges to be malicious prosecution in
respect of such charge. After the defendants closed their case, the
plaintiff applied for an amendment to his Particulars of Claim as
follows:
The
amount of R250 000.00 reflected in paragraph 11 to be amended to
read R450 000.00; the amount of R250 000.00
in prayer 1, on
page 10, be amended to read R450 000.00; the amount of
R150 000.00 in paragraph 15, be amended to read
R250 000.00.
The defendants had no objections to the amendments and the
Particulars of Claim were amended accordingly. Adv
C Zietsman
represented the plaintiff, and Adv PS Mphuloane represented the
defendants.
THE
PLEADINGS
[2]
The plaintiff claims damages, in
Claim 1, for unlawful arrest and detention and in Claim
2, for
malicious proceedings, although it was clear during the trial that he
was referring to malicious prosecution as part of
such proceedings.
After the amendment referred to earlier, the plaintiff claims an
amount of R450 000.00- in respect of claim
1, and R250 000.00
in respect of claim 2. He alleges that on 13 March 2019, and at his
home in Qwa Qwa, he was wrongfully
and unlawfully arrested by members
of the South African Police Service (SAPS) from the Namahadi Police
Station in Phuthaditjhaba,
without a warrant of arrest. The alleged
charge in respect of which he was arrested was one of rape. He was
detained at the Namahadi
police station.
[3]
The following day, on 14 March 2019. He appeared in the
Phuthaditjhaba Magistrate’s
Court, where bail was ostensibly
opposed by the police, so the matter was remanded to 20 March
2019 for a formal bail application.
He was thereafter detained at the
Harrismith Correctional Facility from 14 March 2019 until 20 March
2019. On the latter date he
was released on R500.00 bail and made
seven more appearances in the Phuthaditjhaba Magistrate’s Court
until 19 September
2019, when the charge against him was withdrawn.
At all material times, the members of SAPS and prosecutors were
acting in the
course and scope of their employment with the first and
second defendants respectively.
[4]
The plaintiff alleges that his arrest was unlawful for a number of
reasons, which
in essence, are that:
4.1
the members of SAPS did not take into account his rights in terms of
section 12 of the Constitution, Act 1006
of 1996 (the Constitution),
and without good cause, arbitrarily deprived him of his freedom.
4.2
the said SAPS members had no grounds to interfere with his
constitutional rights, as he posed no danger to
himself or the
community, he would not have evaded his court hearing and he was in a
position to explain that he did not commit
rape.
[5]
The plaintiff pleaded additionally and/or alternatively that his
arrest was unlawful
as the members of SAPS had no
prima facie
reasonable grounds to arrest him. In the further alternative,
he alleged that the members of SAPS did not exercise their
discretion
properly or at all, as there was no obligation on them to arrest him,
they did not investigate the matter properly and
there were no
grounds to suspect that he had committed a crime.
[6]
With regard to claim 2, the
plaintiff alleged that the members of SAPS wrongfully and maliciously
set the law in motion by arresting, charging and prosecuting him on
the alleged charge of rape. When he appeared in court on 14
March
2019, bail was denied at the instance of the employees of the first
and second defendant, resulting in his further detention
at the
Harrismith Correctional Facility. The employees of the first and
second defendants, acting in the course and scope of their
employment
with the first and second defendants, continued to prosecute the
plaintiff until he was found not guilty and discharged
in terms of
section 174 of the Criminal Procedure Act 51 of 1977 (the CPA). The
arrest and prosecution of the plaintiff were actuated
by malice
and/or
animo iniuriandi
and/or negligence, as the employees of
the first and second defendants had no reasonable and/or probable
cause for doing so, nor
did they have any belief in the truth of the
information.
[7]
It is common cause that this matter has its genesis in the arrest and
detention of
the plaintiff in 2013 on a charge of rape. He was
detained for four days after that arrest and thereafter released at
court, without
appearing before a magistrate. The defendants admit
the arrest, detention and prosecution in March 2019, but deny that it
was without
probable cause, and allege that the arrest was in terms
of a warrant of arrest. The defendants also relied on section
40(1)(b)
of the CPA as a defence. I will deal further with this
later. They denied the claim of malicious proceedings.
EVIDENCE
FOR THE PLAINTIFF
[8]
The plaintiff testified and called his brother, Tumelo (Tumelo) Miya
as a witness.
The latter confirmed his version that members of SAPS
came looking for the plaintiff at the home where they both resided,
assaulted
and arrested them both. Tumelo, like the plaintiff also
testified that no warrant was produced prior to arresting the
plaintiff.
The plaintiff and his brother were taken to different
police stations. The plaintiff said that although the police had a
file in
their possession, they did not show him the contents but
simply informed him that they were looking for him as he had been on
the
run since 2013, and that there was also another person that they
were looking for. He was detained firstly at Namahadi police cells
and then transferred to Harrismith Correctional Facility after his
first appearance in court. He remained in custody for
seven
days before bail was fixed in the amount of R500.00.
[9]
The plaintiff alleges that he was detained in deplorable
circumstances at the Namahadi
police cells. The cell was filthy, the
toilet was non-functional, there were no beds. He was given a
“sponge” (which
I take to mean a sponge mattress) and a
dirty blanket which had a bad smell, as well as lice. He was not
given any water, although
he was given something to eat. The
Harrismith Correctional Facility was better. His evidence is that
when he appeared in court
on 20 March 2019, no evidence was led. The
magistrate simply informed him that he was not guilty or “something
like that”.
He was told that the case is being dismissed. It
was suggested to him that the charge was withdrawn, which he agreed
with.
[10]
I should perhaps mention that about six months after his release in
2013, the plaintiff visited
the Investigating Officer (I/O), Warrant
Officer (W/O) Molefe as he needed written confirmation that the
matter against him was
not proceeding. Molefe advised him that the
charge was withdrawn, and provided him with a letter to this effect.
The plaintiff
required this letter for purposes of an appeal relating
to his work as a security officer. He thereafter worked in the
security
industry, seemingly as a security guard from 2013 to 2014.
He then relocated to KwaZulu Natal, where he worked until 2016, and
left there after he was shot. After his arrest in 2019, he had no
contact with Molefe, the I/O. The plaintiff closed his case after
Tumelo testified.
EVIDENCE
FOR THE DEFENDANT
[11]
The defendants called three witnesses, The I/O, Molefe, and two
prosecutors, Goodman Langelihle
Makhanya (Makhanya) and Lefa Victor
Rathaba (Rathaba), who were involved in the prosecution of the
plaintiff. On the third day
of trial and while Molefe was under
cross-examination, the first defendant conceded the merits in respect
of Claim 1. It seems
that an offer of settlement was made but not
accepted, so the matter proceeded. The court was therefore, required
to adjudicate
only the issue of quantum in respect of Claim 1. The
plaintiff’s case in respect of Claim 1 hinged on the absence of
a lawful
and properly issued warrant of arrest, hence rendering his
arrest unlawful. In view of the first defendant’s concession in
respect of Claim 1, it is unnecessary for me to deal in any detail
with the merits or evidence surrounding the warrant of arrest.
I will
deal with such evidence, if necessary, later in this judgment.
[12]
It is perhaps useful to deal with the facts of the matter leading to
the arrest of the plaintiff
in 2013 in order to properly
contextualise the evidence given in respect of the present matter. In
the 2013 matter, the two female
complainants in that matter who were
scholars, were walking in the street at approximately 21h45, when
they were accosted by unknown
males. The one complainant, Mavis
Qothelo (Qothelo), said there were three men but the other
complainant, Puleng Mbele (Mbele),
said there were four. Both of them
ran away but the assailants caught up with them. Mbele said two of
them approached her and robbed
her of her mobile telephone, while the
other two chased her friend, Mavis, and took her towards a graveyard.
She ran away and sought
help from the police. Qothelo said that the
two who chased her robbed her of her mobile telephone and then pulled
her to a graveyard,
where they both raped her at knifepoint.
Thereafter they took her schoolbag and its contents and left. She
went to a nearby house
for help and ultimately met the police on the
street. The suspects were not found at that time.
[13]
The two complainants subsequently made further statements to Molefe
who was the I/O. Mbele said
that she pointed out suspect number one
to the police, while Qothelo said that she told her father who raped
her, and he knew accused
number 2 very well. Her father pointed out
accused 2 to the police. When regard is had to the docket in that
matter, the plaintiff
in this matter is accused 1 and accused 2 is
someone called Monaheng Lucky Mofokeng. There is no discernible date
on Qothelo’s
statement, and an extremely poorly written date on
Mbele’s statement. Molefe in cross-examination said that the
date appeared
to be 14 January 2014. He said Qothelo’s
statement was taken on a different day to the one on which Mbele’s
statement
was taken. Therefore, the police would have known at least
since 14 January 2014 that Mbele, who was not the person who was
raped,
identified the plaintiff as her assailant. The plaintiff was
not charged with robbery, but with rape. Molefe testified that he was
not aware that Mbele was not raped and that the plaintiff was not
charged with robbery.
[14]
Makhanya is currently a Senior Public Prosecutor. During 2019, he was
a Regional Court Control
Prosecutor stationed at Phuthaditjhaba, and
one of his functions was to screen dockets to establish that a crime
has been committed,
that a perpetrator has been identified and
whether a defence has been furnished. In this matter there was more
than one perpetrator
and DNA evidence was required. Despite a number
of requests for such evidence, it was not forthcoming. He saw no
prospects of success
in this matter and decided on, 11 June 2019, to
stop the prosecution by issuing a
nolle prosequi
. He testified
that this was his only his involvement with the docket in the matter.
He indicated under cross-examination that he
did not consult with the
previous prosecutor or the I/O before he took the decision to
nolle
the docket. One of the main reasons for that decision was the lack of
prima facie
evidence against the plaintiff, being DNA evidence
linking him to the rape charge. He also conceded that the state’s
case
against the plaintiff did not improve from the date he was first
arrested in 2013 to the date of his second arrest in March 2019.
[15]
Rathaba has been a District Court prosecutor since 2009 and currently
working in the Sesing Magistrate’s
Court which falls under the
jurisdiction of the Phuthaditjhaba Magistrate’s Court. He was
the prosecutor who dealt with the
plaintiff’s matter in court
on 20 March 2019, and was unable to remember if he dealt with the
matter on the plaintiff’s
first appearance, when the matter
would have been screened by the Control Prosecutor and enrolled for
court. However, having been
referred to the docket and charge sheet,
he noted that he was the prosecutor on the first appearance, and said
that he would not
dispute that he dealt with the matter on that day.
Given the nature of the charge, namely rape, the common practice is
not to set
bail on the first appearance but to remand it for seven
days for further investigation and for a formal bail application,
which
was done in this matter.
[16]
Rathaba did not contact the I/O but wrote a note in the investigation
diary of the docket requesting
him to be present for the formal bail
application. He testified that the I/O filed a statement saying he
does not oppose bail,
hence there was no need to meet with him. He
also could not comment on whether the DNA sample was taken from the
plaintiff, despite
numerous requests in the investigation diary to do
so. He confirmed that DNA results were important in order to
prosecute a rape
matter, but that it sometimes took long to receive
these results, with the result that the matter would be struck from
the court
roll. The defendants closed their case after this witness
testified.
ISSUES
[17]
The issues to be determined by this court are:
17.1
whether the plaintiff has succeeded in proving the merits of his
claim, in respect of Count 2;
17.2
whether the plaintiff established a causal link between the actions
of the defendant/his employees and the patrimonial loss
he alleges he
suffered.
17.3
the quantum in respect of Claim 1 and Claim 2
THE
LAW
and
EVALUATION
[18]
As indicated earlier, the first defendant conceded liability in
respect of Claim 1, making it
unnecessary to embark upon the legal
position in respect of unlawful arrest. I will deal with the law
relating to a claim of malicious
prosecution. Both counsel correctly
referred to the requirements for a successful claim in respect
malicious prosecution, as cited
by the learned authors in
Amler’s
Precedent of Pleadings, 8
th
Edition, p247
,
from the
Moleko
case below:
“
To
succeed with a claim for prosecution, a claimant must allege and
prove that:
(a)
the Defendants set
the law in motion – they instigated or instituted the
proceedings;
(b)
the
Defendants acted without reasonable or probable cause;
(c)
The Defendants acted
with malice (or
animo
iniuriandi
); and
(d)
The
prosecution has failed.”
These
were the guidelines provided by the court in
Minister
of Justice and Constitutional Development & Others v Moleko
2009(2) SACR 585 (SCA)
,
which was applied in the matters of
Minister
of Safety and Security v Lincoln
2020 (2) SACR 262
(SCA)
and by the Full Court in
Minister
of Police and Another v Hoogendoorn
2022 (2) SACR 36
(GP)
[19]
It was expected of the defendants to call the two complainants in the
matter in respect of which
the plaintiff was charged with rape, to
shed light on how the plaintiff came to be pointed out and to whom
such pointing out was
made, as well as Constable Tshabalala, who
arrested the plaintiff. No explanation was forthcoming as to why they
did not do so.
In his Heads of Argument, Mr Mphuloane indicated that
the arresting officer was dismissed from his employment with the
first defendant
and his whereabouts are unknown. No mention was made
of the two complainants. It is well settled in our law that failure
to call
available witnesses can lead to the negative inference being
drawn, depending on the circumstances of the case, that calling such
witnesses may have uncovered facts which are unfavourable to his case
or may have damaged his case.
[20]
This case is a good example of poor and ineffectual police
investigation and a failure by the
relevant prosecutor/s to read the
docket properly and apply his/her mind to the evidence in the docket.
Molefe, the I/O, in spite
of being a police officer for many years,
specialising in sexual offence cases, displayed a worrying lack of
understanding, or
ignorance, of the evidence gathered and
particularly whether there were grounds to arrest the plaintiff in
the first place. The
initial statements of Mbele and Qothelo do not
identify of their assailants. Almost a year later Molefe obtained
statements from
them identifying their assailants, without any
details of how they were able to make such identification, to whom
Mbele had pointed
out the plaintiff or how the father of Qothelo
pointed out accused 2 to the police. There was absolutely no follow
up investigation
done as a result of the two later statements. Molefe
conceded that he was not aware that Mbele was not raped
[21]
The initial statements were in the docket since February 2013.
Mbele’s second statement
was obtained, seemingly, on 14 January
2014, and Qothelo’s statement presumably around the same time
but, according to Molefe,
on a different day. Molefe did not even
take the trouble to ensure that these statements were properly
commissioned. A similar
situation applies to his own statement made
in respect of his non-opposition to bail, which is not dated or
commissioned. When
asked whether this statement applied to the
plaintiff’s 2013 or 2019 appearance in court, he could not say,
a further
example of shoddy police work on the part of an
ostensibly experienced police officer. In spite of clear evidence
that the plaintiff
was not identified by Qothelo as one of her
rapists but by Mbele as one of the assailants who robbed her of her
mobile telephone,
Molefe pushed forward with a charge of rape against
the plaintiff. His obtaining a warrant of arrest in October 2014,
which was
executed by Constable Tshabalala in 2019, is a further
indication that the employees of the first defendant set the law in
motion
against the plaintiff, without grounds for doing so. In
addition, he conceded that the warrant, which bore the names of both
accused,
had been altered by deleting the name of accused 2, after
the magistrate had authorised the warrant of arrest, such deletion
having
been done without the authority of the magistrate.
[22]
When the defective and unlawful warrant of arrest which, formed part
of the docket, was exposed
in cross-examination, Molefe conceded that
his altering the warrant of arrest by deleting the name of accused 2,
was “a huge
mistake” for which he was at fault. He also
conceded that the plaintiff was arrested on a defective warrant of
arrest, and
that his address appears at the top of the warrant, an
address he knew since 2013, raising the question why it was necessary
to
have a warrant of arrest authorised. There appears to have
been no attempt to secure his attendance at court by one of the
other
less drastic means allowed in law, for example a notice to appear in
court or a summons. This is no doubt the reason
that the first
defendant capitulated on the third day of trial, while Molefe was
being cross-examined, and conceded liability in
respect of Claim 1. I
am satisfied that the plaintiff has shown that there was no probable
cause for the employees of the first
defendant to have arrested him
for a second time in March 2019.
[23]
I turn now to deal with the conduct of the employees of the second
defendant. Rathaba was the
prosecutor dealing with the docket on the
plaintiff’s first appearance on 14 March 2019. He noted that
that the plaintiff
was charged with rape, and as is the practice, he
remanded the matter for seven days to 20 March 2019, for further
investigation
and for a formal bail application. He requested the I/O
to be present in court for the bail application. The I/O ostensibly
filed
a statement indicating that he was not opposed to bail, so that
when the plaintiff appeared in court on 20 March 2019, bail was
set
and he was released. It was clear that Rathaba did not consider the
contents of the docket fully, as he testified that his
involvement
started only on 14 March 2019. He baldly declared that the remand
from 14 March 2022 to 20 March 2022 was to gather
more evidence, and
DNA evidence was part of the further investigation. When it was put
to him that even after the plaintiff was
arrested in 2019, no DNA
samples were collected from him. His response that it happens that a
matter is struck from the roll, pending
receipt of DNA results.
[24]
It was clear that he either missed the point completely, that no DNA
sample was taken from the
plaintiff, and therefore no results would
be forthcoming, or he realised the predicament he was in and simply
gave a very generalised
answer. I am inclined to agree with the
proposition put to Rathaba that he had no idea of what the contents
of the docket were,
because he did not read the docket. Therefore
there was no probable or reasonable cause for the continued detention
of the plaintiff
from 14 March to 20 March 2019. Even if one were to
accept that in a busy District Court, the prosecutor dealing with
first appearances
has little time to study an entire docket, given
the large number of dockets he/she has to read, and he/she therefore
accepts that
if the matter has been enrolled, the Control Prosecutor
would have read the docket and made the informed decision to continue
to
prosecute the plaintiff, it begs the question whether the Control
Prosecutor did in fact read the docket
[25]
Rathaba’s evidence is that the docket would be sent to him
after it had been screened by
the Control Prosecutor, who is expected
to read the entire docket and decide whether to enrol the matter or
not. The history of
the various remands, together with the numerous
entries in the investigation diary requesting DNA samples to be
collected, ought
to have triggered a careful reading of the docket,
and particularly the statements made by the two complainants. If the
docket
had been read, it would have been clear to the Control
Prosecutor that no DNA samples were collected, and instructions would
have
been given for such to be done, in view of the arrest of the
plaintiff, seemingly for this purpose. This was not done.
[26]
As indicated, Makhanya’s evidence is that he was involved for a
short while on 11 June
2019, read the docket and saw no prospects of
a successful prosecution and endorsed the docket with the
nolle
prosequi
decision. When he was confronted with the fact that the
plaintiff was allegedly pointed out by the robbery complainant
(Mbele)
and not the rape complainant (Qothelo), Makhanya attempted to
justify the persistence with the prosecution on a charge of rape by
asserting that the complainants were attacked by a group of four men
and that even though they split up and chased the two complainants,
they were acting with common purpose and therefore, the plaintiff
could be charged with rape. He was unable to answer satisfactorily
when it was pointed out that the charge sheet makes no mention of
common purpose, but, in fact, pointedly alleges that the plaintiff
raped the complainant, Qothelo. The distinct impression gained from
his evidence is that he saw that there were no DNA results
and, based
on that, he concluded that there was no prospect of a successful
prosecution.
[27]
It appears that it was completely lost on Makhanya that a DNA
reference sample was never taken
from the plaintiff, and therefore,
there could never be a DNA result. It seems to have dawned on him
during cross-examination that
the complainant in the robbery matter
identified or pointed out the plaintiff as one of her assailants, and
not the complainant
in the rape charge. It is a trite principle of
our law that a person ought not to be prosecuted where the minimum
evidence upon
which he can be convicted is absent.
In
S
v Lubaxa
2001 (2) SACR 703
(SCA);
(2001 (4) SA 125
,
the
court said the following at para 19:
'…Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely
in the expectation
that at some stage he might incriminate himself. That is recognised
by the common-law principle that there should
be reasonable and
probable cause to believe that the accused is guilty of an offence
before a prosecution is initiated and the
constitutional protection
afforded to dignity and personal freedom (s 10 and s 12) seems to
reinforce it. It ought to follow that
if a prosecution is not to be
commenced without that minimum of evidence, so too should it cease
when the evidence finally falls
below that threshold…'
The
test for reasonable and probable cause set out in
Beckenstrater v
Rottcher and Theunissen 1955(1) SA 129 (A)
about sixty eight
years ago still holds relevance today. The court said at p136 A-B
“
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff's guilt, a subjective element
comes into play and disproves the existence, for the defendant, of
reasonable and probable cause”.
[28]
The plaintiff bears the onus to prove these requirements and an
evidential burden rests upon
the defendant to rebut the inference
regarding its state of mind, in order to escape liability.
While
courts may be reluctant to limit or interfere with the legitimate
exercise of prosecutorial authority, the discretion of prosecuting
authority to prosecute is not immune from the intervention of the
court where such a discretion is improperly exercised. It is
not in
dispute in this matter that the employees of the first defendant
instituted proceedings against the plaintiff by charging
him and
bringing him before the court. From what I have set out above, it is
clear that his arrest was based upon a defective and
unlawful warrant
of arrest, and on evidence that falls far short of the threshold
referred to in
Lubaxa
above.
[29]
The
prosecution in this matter was based upon the same deficient evidence
and incorrect facts as the arrest, and despite being under
a duty to
ensure that the interests of justice and the rights of people are
protected, the prosecuting authority in this matter
failed to
exercise its discretion properly to ensure that the plaintiff’s
Constitutionally protected rights were not violated.
I am satisfied
that there was no reasonable and probable cause to arrest and
prosecute the plaintiff in this matter, and that in
persisting with
the prosecution in this matter, the conduct of the prosecution was
wrongful. I am, consequently, of the view that
the plaintiff has
satisfied the requirements to succeed in his claim for malicious
prosecution.
[30]
There is one further matter that requires mention. After the parties
closed their respective
cases, the court postponed the matter to 11
May 2022 for closing arguments. Mr Zietsman suggested that the
parties prepare written
Heads of Argument to assist the court. The
matter was discussed and the court indicated that if it found the
written Heads sufficient,
there would be no need for oral arguments,
and the court would advise the parties accordingly upon receipt of
the Heads. They agreed
that both Heads of Argument would be filed by
25 April 2022, and the court recorded that accordingly, but did not
make an order
to this effect. The plaintiff’s Heads were filed
a week later, on 4 May 2022. The defendants appear to be labouring
under
the misapprehension that the court set time frames for the
parties to file Heads of Argument and ordered accordingly.
[31]
There was a discussion in court and the parties agreed amongst
themselves on the timeframes for
the filing of such Heads. The
defendants took up the surprisingly strong position, in their Heads
of Argument, that they were prejudiced
by the “plaintiff’s
blatant failure” to comply with the court’s order, and as
such the plaintiff’s
conduct should be “condemned/not
condoned at all costs”. The court was implored to disregard the
plaintiff’s
Heads of Argument. The plaintiff, for his part,
offered no explanation to the court for the late filing of his Heads.
He was not
obliged to as there was no court order to this effect. He
indicated in his supplementary Heads of Argument that he will furnish
an explanation if required to do so. The defendants did not mention
the issue of the late filing of the Heads of Argument, nor
did they
pursue their request that the plaintiff’s Heads be disregarded.
I will take it, therefore, that they had abandoned
this request.
[32]
The award of damages in cases such as this, lies in the discretion of
the court, which discretion
must be exercised reasonably and fairly,
especially as such damages cannot be calculated in accordance with
any formula or with
mathematical precision. While it may be useful to
consider awards made in previous comparable cases, the circumstances
and merits
of each case must be considered when an award for damages
is made. Our courts have repeatedly pronounced upon the determination
of appropriate awards of damages.
In Minister of Safety and
Security v Seymour 2006(6) SA 320 (SCA) at paras 17 and 20:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate but they have no higher value
than that”.
and
“
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.”
[33]
Our courts have emphasised that the interests of both parties must be
fairly balanced and the
award for damages must always be commensurate
with the harm suffered. The Supreme Court of Appeal (SCA) had this to
say in
Minister of Safety and Security v Tyulu 2009(5) SA 85 (SCA)
at para 26:
“
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed solatium
for his or her injured feelings. It is therefore
crucial that
serious attempts be made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our
courts should be
astute to ensure that the awards they make for such infractions
reflect the importance of the right to personal
liberty and the
seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law. I readily concede
that it is impossible
to determine an award of damages for this kind of
injuria
with
any kind of mathematical accuracy. Although it is always helpful to
have regard to awards made in previous cases to serve
as a guide,
such an approach if slavishly followed can prove to be treacherous.”
[34]
The parties led no evidence in respect of the quantum of damages but
addressed the issue in their
respective Heads of Argument. The court
was left to gather the sketchy information about the plaintiff that
was mentioned in his
evidence. He was 31 years old at the time of
testifying at the trial in this matter in May 2022, and would have
been twenty eight
(28) years old at the time of his arrest in 2019.
No details were given of his educational qualifications. He was
employed as a
security officer but currently appears to be working as
a vendor. No details were provided as to what exactly he sells, what
his
income was at the time of his arrest or what his current income
is.
[35]
From his evidence, it is apparent that he worked as a security guard
until 2016, when he was
shot. No details are given as to what he did
between 2016 and 2019, or when he started his business as a vendor.
With regard to
his detention, he spent one night at the Namahadi
police station in conditions that I have described earlier, before
being moved
to the Harrismith Correctional Facility after his first
appearance in court, where he was detained for seven (7) days before
being
released on bail. It is alleged that he thereafter made seven
appearances in court over a period of six (6) months before the
prosecution
decided not to proceed with the prosecution. Although it
was pleaded in the summons that he was discharged in terms of section
174 of the CPA on 19 September 2019, no such evidence was led and it
was common cause that a
nolle prosequi
was issued by the
second defendant on 11 June 2019. The plaintiff testified that he was
advised that the case against him was dismissed
or withdrawn, but
neither party explained why the plaintiff was required to appear in
court until 19 September 2019.
[36]
I mention that a perusal of a copy of the charge sheet and record of
proceedings in the Magistrate’s
Court, it is apparent that on
20 March 2019 and after bail was set, the matter was remanded to 16
April 2019 for further investigation.
On 16 April 2019, the matter
was remanded to 6 June 2019, again for further investigation. On 6
June 2019, the plaintiff did not
appear in court. A warrant of arrest
was authorised and his bail was provisionally forfeited to the state.
The matter was remanded
to 27 June 2019 for final cancellation of
bail, on which date the plaintiff was still absent from court and his
bail was finally
forfeited to the state. Then strangely, a further
appearance sheet, dated 9 June 2019, was filed after that of the 27
June 2019,
indicating that the plaintiff appeared in court of his own
accord, and explained that he was in custody in another matter on 6
June 2019.
[37]
The warrant of arrest appears to have been cancelled and an indemnity
letter furnished to the
plaintiff, presumably to furnish to any
police officer who attempted to arrest in terms of the warrant of
arrest. The matter was
then remanded to 19 September for the docket
to be requested. On 19 September 2019, the charge against the
plaintiff was withdrawn.
Rathaba was the prosecutor on 9 June 2019,
when the warrant of arrest, was cancelled as well as on 19 September
2019 when the charge
against the plaintiff was withdrawn. These
aspects were never raised by the plaintiff, and the court is in the
dark as to why the
plaintiff was made to appear in court for almost 3
months after the decision not to prosecute him. It appears to be
another example
of ineptitude on the part of the employees of the
first and second defendants.
[38]
The plaintiff referred only to the matter of
De Klerk v Minister
of police 201892) SACR 28 (SCA) and 202(1) SACR 1 (CC),
where the
Constitutional Court (CC) agreed with the dissenting judgment of the
SCA in which the court found that the police could
be held liable for
the entire period of the claimant’s detention, including the
period of detention after his first appearance
in court. The CC
agreed that an amount of R300 000.00 for approximately 7 days’
detention was appropriate. It was submitted
on behalf of the
plaintiff in this matter that an amount of Between R350 000.00
and R400 000.00 would be a fair and just
award for unlawful
arrest and detention and an amount of between R175 000.00 and
R200 000.00 a fair amount for malicious
prosecution.
[39]
There was also no evidence placed before this court of any serious
physical or medical sequelae
to the plaintiff as a result of his
arrest and detention. It can be accepted that he was traumatised by
his arrest, which was preceded
by an assault upon him. It followed
that his freedom was severely curtailed. It appears that he was not
unscathed by the conditions
and circumstances under which he was
detained, and which I detailed earlier. He suffered emotional
distress, was humiliated and
degraded. The evidence of the plaintiff
and his brother with regard to his arrest was not disputed, nor was
his evidence regarding
the effect of his arrest and detention upon
him. It can therefore, be accepted that the conduct and actions of
the employees of
the first and second defendants caused the plaintiff
to suffer damages as a result of the
contumelia
and emotional
stress, to which he was subjected.
[40]
It was submitted on behalf of the defendants that an appropriate
amount of damages in respect
of unlawful arrest and detention would
be R60 000.00. In respect of malicious prosecution, it was
argued that the claim relevant
thereto should be dismissed with
costs, but if the court finds that the plaintiff had succeeded in
proving his claim then an amount
if R90 000.00 would be a fair
award. The first defendant referred
to the matter of
Mvu
v Minister of Safety and Security and Another 2009(6) SA 86 (GSJ)
,
as support for his contention that R60 000.00 is a fair award. I
note that the actual amount of the award in Mvu was R30 000.
Mr
Mphuloane on behalf of the defendants also referred to several other
matters . In
Tyulu
referred to above, an award of R50 000.00 was made in respect of
a magistrate who was detained for a few hours. In
Seymour
,
also referred to above, an award of R90 000.000 was made for
five days’ detention; in S
eria
v Minister of Safety and Security 2005(5) SA 130 (C),
R50 000.00
was awarded
in
respect of an architect who was detained overnight
[41]
The defendants also referred to two matters emanating from this
Division and which were heard
together by my brother Molitsoane J on
23 October 2021 and in which judgment was delivered on 17 January
2022. These are the matters
of
Motlogeloa
Eric Choane v Minister of Police + 1, Case number 2606/2018 and Thabo
Monaheng
v Minister of Police + 1 Case number 1823/2019.
Both
plaintiffs sued for damages in respect of unlawful arrest and
detention as well as malicious prosecution. The court awarded
damages
in respect of Choane, in the amount of R80 000.00 (against the
Minister of Police) for his arrest and three days’
unlawful
detention before his first appearance and R350 000.00 (against
the National Director of Public Prosecutions - NDPP)
for
approximately ten months’ detention after his first appearance.
He was awarded R50 000 for malicious prosecution
(against the
NDPP). Monaheng was awarded
R80 000.00
(against the Minister) for three days’ unlawful arrest and
detention before his first appearance in court
and R220 000
(against the NDPP) for detention after his first appearance. He was
awarded R50 000.00 (against the NDPP)
for malicious prosecution.
[42]
The plaintiff in this matter pleaded that he suffered general and
special damages in respect
of
contumelia
, emotional stress and
trauma, loss of amenities of life and legal fees. No evidence in
respect of the latter two heads of damages
was led. The plaintiff
said that he was assaulted at the time of his arrest and he was
“swollen” as a result. No medical
evidence was tendered
nor was it canvassed with him whether he sought medical assistance
for his alleged injuries. With regard
to emotional damages, he
testified that he is afraid to approach women for fear that he will
be charged with rape. He also testified
to not feeling good about
this experience that he endured and that he felt “disheartened”.
It appears that he was legally
represented during his appearances in
court after his release on bail.
[43]
It was argued on behalf of the first defendant that he was not liable
for claim 2 (malicious
prosecution) and cannot be held jointly and
severally liable. When regard is had to the Particulars of Claim, the
plaintiff did
in fact plead that the employees of the first and
second defendant set the law in motion against him without reasonable
and probable
cause. I have set out the reasons that I made such a
finding.
[44]
On a conspectus of all the evidence, and after considering all the
circumstances of this matter,
which I have detailed, I am of the view
that the plaintiff is entitled to be compensated for the damages he
suffered in respect
of Claim 1 and Claim 2 in the amounts listed in
the order that follows hereafter. With regard to costs, the plaintiff
requested
that the court order that costs of travel and accommodation
in respect of the plaintiff’s legal representatives be paid.
These are matters to be raised with the Taxing Master and proved to
be reasonable and necessary. The Taxing Master has the discretion
to
allow such costs. An order to that effect would unnecessarily fetter
the discretion of the Taxing Master.
[45]
In the circumstances, I make the following order:
The
first and second defendants are jointly and severally liable to pay
to the plaintiff, the following amounts, the one paying,
the other to
be absolved:
45.1
Two Hundred and Fifty Thousand Rand (R250 000) in respect of the
plaintiff’s claim for unlawful arrest and
detention;
45.2
One Hundred and Fifty Thousand Rand (R150 000.00) in respect of
the plaintiff’s claim for malicious prosecution;
45.3
The defendants are directed to pay the plaintiff’s costs on a
party and party scale, such costs to include the
costs of 19 August
2021.
S.
NAIDOO, J
On
behalf of Plaintiff:
Adv.
C Zietsman
Instructed
by: Loubser
Van Wyk Inc
c/o
Jacobs Fourie Inc
158
Zastron Street
Westdene
Bloemfontein
(Ref:P
Venter/Lou7/0021)
On
behalf of Defendant: Adv
PS Mphuloane
Instructed
by: Ms
RD Canham
Office
of the State Attorney
11
th
Floor Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:b66/202000154/P14M)