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[2022] ZAFSHC 234
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Masilo v Minister of Police and Another (205/2020) [2022] ZAFSHC 234 (19 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Case
no.
205/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THUSO
MASILO
Plaintiff
and
MINISTER
OF POLICE
First Defendant
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
Second
Defendant
CORAM: DE
KOCK, AJ
HEARD
ON: 16,
17 and 19 AUGUST 2022
JUDGMENT
BY: DE
KOCK, AJ
DELIVERED: This
Judgment was handed down electronically and by circulation to the
parties’ representatives by e-mail and released to SAFLII.
The
date and time for hand down is deemed to be 11h00 on 19 September
2022
INTRODUCTION:
[1]
The Plaintiff issued summons against the First Defendant based on his
alleged unlawful
arrest and detention. The Plaintiff further
issued summons against the First and Second Defendants based on his
alleged claim
of malicious prosecution. The First and Second
Defendants filed a Plea. In terms of the Plea the Defendants
relied
on
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
,
claiming that the arresting officer Ndaba held a reasonable
belief/suspicion that the Plaintiff had committed a Schedule 1
offence
in order to justify the Plaintiff’s arrest and
detention. It was further pleaded that the members of the SAPS
lawfully
detained the Plaintiff in terms of
Section 39(2)
and (3) of
the
Criminal Procedure Act up
until his release. In respect of
the Plaintiff’s second claim, save for pleading that the
Plaintiff was suspected of
committing a Schedule 1 offence, the
Defendants pleaded a bare denial.
[2]
At the beginning of the action Counsel for the Plaintiff and the
First and Second
Defendants placed the following common cause facts
on record:
2.1
The identity of the Plaintiff;
2.2
Jurisdiction of the Court;
2.3
That the Plaintiff was arrested on the 3
rd of
August 2017
without a warrant of arrest;
2.4
That the members of the South African Police Service were acting in
their employment as employees of the First
Defendant;
2.5
That the Plaintiff has complied with the provisions of
Section 3
of
Act 40 of 2002;
2.6
That the Plaintiff was prosecuted for murder and on 13 August 2019
the Plaintiff was acquitted in terms of
Section 174 of the Criminal
Procedure Act of 2002;
2.7
The Plaintiff was detained until 13 August 2019.
[3]
Counsel for the Plaintiff and the First and Second Defendants place
the following
issues on record that are in dispute:
3.1
Whether the arrest and detention were unlawful;
3.2
Whether the proceedings instituted by the members of the Defendants
were malicious;
3.3
Whether the prosecution was indeed malicious.
[4]
Furthermore the liability of the First and Second Defendants and
quantum of the damages
suffered by the Plaintiff is evenly in
dispute.
[5]
The parties agreed that the onus of proof rest on the First Defendant
in regard to
the claim of unlawful arrest and detention and that the
onus of proof rests on the Plaintiff in relation to the Plaintiff’s
claim for damages due to the alleged malicious prosecution.
[5.1] The
parties legal representatives filed heads of argument on 22
nd
,
24
th
and 26
th
of August 2022, whereafter
judgement was reserved.
EVIDENCE:
The
Plaintiff’s evidence:
[6]
Two witnesses testified on behalf of the Plaintiff’s case.
The Plaintiff
himself as well as one Mr Thabiso Motaung.
Evidence
by the Plaintiff:
[7]
The Plaintiff testified that he issued summons for unlawful arrest
and detention and
malicious prosecution. The Plaintiff
testified that he was arrested on the 3
rd of
August 2017.
The Plaintiff testified that on the 3
rd of
August 2017 at
5 o’clock in the morning the police arrived at his residence
whilst he was still sleeping. He testified
that four police
officers arrived in two vehicles. He further testified that
after the police knocked, he opened the door.
[8]
He testified that the police came there to tell him that they are
arresting him for
murder. He testified that the police did not
want him to talk and did not ask for his name. He was not told
who the
deceased was at his place of residence but only at the police
station. He was dragged by two police officers on the
right-hand
side and the left-hand side to the van. He testified
that he did not know why they dragged him because he was not
aggressive.
He testified that he was handcuffed in the front
and with him in the vehicle which was a double cab was another
person.
[9]
The police vehicles drove around the location with other people being
arrested. The
police had a list according to which they were
arresting members of the community. At the police station
he testified
that he was informed that he was arrested for murder and
nothing further was explained to him. He testified that in the
police
van he asked the police for what he was arrested for and that
the police said that he must not ask many questions. He
testified
that at the police station the arrested persons were
separated and that they were placed directly in the cells. A
day passed
and the following day he was called and charged. He
testified on the first day no fingerprints were taken.
[10]
He confirmed that he was charged with murder. Relating to the
circumstances of the murder,
the Plaintiff testified that his friend
was fighting with the deceased. His friend’s name was
Tseka Tshabalala (“Tseka”).
On 28
or 29
July 2017 a few days before the arrest Tseka was fighting the
deceased. He testified that what prompted Tseka was that
his
brother was fighting with the deceased and Tseka intervened.
This all transpired at a tavern. He testified that the deceased
ran
away and at that stage Tseka’s brother was already injured.
[11]
Tseka’s brother’s friends chased the deceased. He
testified that he and Tseka
then left the shebeen and proceeded to
Tseka’s parental place to report what transpired. After
they explained at Tseka’s
parents’ house they proceeded
to the location where the deceased was residing. They proceeded
to look for Vusi who
was also in the car chasing. Before they
came to the deceased’s place of residence they came across a
lot of people.
They did not see the deceased when they arrived
there. The group of people pointed where the deceased lay.
The deceased
was lying on the ground inside the path where people
used to walk. Tseka proceeded to the deceased and stabbed him.
[12]
He testified that he grabbed Tseka and told him that the deceased’s
person was already
injured. At that stage the deceased was
still alive. He testified that he grabbed Tseka but that Tseka
broke free and
stabbed the deceased. He then went again to
Tseka, grabbed him and spoke to him. They then left the scene.
He
testified that the reason why Tseka stabbed the deceased was
because of the quarrel with his brother. He testified that he
did not know why the deceased was lying on the ground but that he
later learned that the deceased was lying on the ground because
the
group of people already injured him.
[13]
He testified that he did not injure or assault the deceased person.
He testified that he
told the latter events to the police. He
indicated that the police told him that he will tell his story to the
Court.
He testified that he was then detained at the police
station. On 5 August, two (2) days later he was taken to
Court.
He testified that his Legal Aid attorney said that he
must apply to Court for bail. He testified that he was not
given an
opportunity to apply for bail. He testified he went
back to Court approximately fourteen (14) days later and that the
matter
was still postponed with no bail application. He
testified that he struggled to get bail for nine (9) months.
[14]
He testified that after nine (9) months he was informed that bail was
denied. He testified
that the Magistrate at Court told him that
bail was not granted. He further testified that the case was
remanded for investigation
two (2) months after he was denied bail.
The matter was transferred to the Regional Court. For a period
of almost a
year the matter was in the District Court. At the
Regional Court the matter was postponed for further investigation.
[15]
He testified that the matter then proceeded to criminal trial.
His first appearance was
approximately two (2) years later. He
testified that at the criminal trial there was a witness Thabiso
Mokoena who testified
for the State. He testified that he heard
Mokoena’s evidence. He testified that Mokoena explained
that he did
nothing that he was the one reprimanding Tseka and not
the one who stabbed the deceased. He testified that he then
came to
the decision that he was not guilty. He further
testified that the prosecutor did not withdraw the charges. On
13 August
2019 he was acquitted. He was detained from the 3
rd
of
August 2017 up until 13 August 2019. He testified that
no one gave him an opportunity to tell his side.
[16]
He testified that at the police station where he was kept – he
was kept in a separate cell
for two (2) days where there was no water
and electricity and a shortage of blankets. When he was
transferred to Harrismith
prison, he did not have his own cell.
There were approximately twenty (20) inmates in one cell. He
endured this for
approximately two (2) years. He testified that
he was not comfortable with the circumstances and that his mother
passed on
and he could not attend the funeral because he was
incarcerated.
[17]
He further testified that he could not continue to do his odd jobs
and enhance his living.
[18]
During cross-examination the Plaintiff was referred to page 16 of
Bundle C and referred to the
fact that the matter was remanded to the
17
th of
January 2018 for a further bail application due to
time constraints and the Plaintiff was further referred to page 22 of
Exhibit
“C” dated 26
February 2018 in terms
whereof it is noted that bail for Accused no. 1, 2 and 3 were
refused.
[19]
It was put to the Plaintiff on behalf of the First Defendant that the
First Defendant would present
evidence that the Plaintiff was
arrested based upon the affidavit of Thabiso Motaung wherein it was
allegedly stated that the Plaintiff
was identified as a person who
assaulted the deceased. The Plaintiff’s counsel raised an
objection that the affidavit
does not state the aforesaid version and
I accordingly upheld the objection.
[20]
It was put to the Plaintiff on behalf of the Second Defendant that
there was a link to the crime
and that they formed a strong
prima
facie
opinion that the Plaintiff committed this crime. No
further detail was however given, and no link was explained.
[21]
During re-examination the Plaintiff confirmed that he was not
arrested for assault on intimidation.
Second
witness on behalf of the Plaintiff: Thabiso Motaung:
[22]
He testified that he knows the Plaintiff and that they stay in the
same village. He further
testified that he knew that the
Plaintiff was arrested on the 3
rd of
August 2017 and that
the complaint was about murder. He further testified that he
testified for the State in the criminal
trial as he was a witness to
the murder. He testified that the deceased person stabbed Vusi
and that Vusi told the witness
the latter.
[23]
He testified that he saw a group of people that were on a Ford Bantam
chasing the deceased.
He testified this happened around 2
o’clock in the morning. He testified that there was a
group of people and from
the group of people he could identify Tseka
Oupa and the Plaintiff. He testified that in the process Tseka
drew out a knife
and stabbed the deceased. He testified that
the Plaintiff reprimanded Tseka. Tseka then broke loose from
the group
and stabbed the deceased in the back. He testified
that the Plaintiff took Tseka away and they went home. He
testified
that he did see the Plaintiff but that he did not see the
Plaintiff assault the deceased. He only saw the Plaintiff
pulling
Tseka away.
[24]
He testified that he told Ndaba a police officer (CID) who wears
casual clothes what happened
and that he explained to the police
officer that the Plaintiff was trying to reprimand Tseka. He
testified that he did not
tell Ndaba that the Plaintiff assaulted the
deceased. He testified that he explained who killed the
deceased and that he
testified that he saw Tseka opening an Okapi
knife in the process. He testified that he made a statement
when the Plaintiff
was arrested. He testified that when he went
to Court he spoke to the prosecutor at Court. He testified that
he told
the prosecutor that he observed a Ford Bantam with lights
on. He testified that there was a group of people. He
indicated
to the State prosecutor that he observed the deceased lying
down and shaking. He testified that he informed the prosecutor
that in the process Tseka drew out a knife whilst the Plaintiff tried
to reprimand him. In the process Tseka stabbed the
deceased in
his back.
[25]
He testified that he did not tell the prosecutor that the Plaintiff
assaulted or murdered the
deceased. He further testified that
after speaking to the prosecutor he was informed to come to Court.
A month later
he came back to Court. He testified that the
Court asked him to tell what he observed on the scene. He
testified that
he told the Magistrate what transpired. He told
the Magistrate that Vusi came and told him that he was stabbed.
In
the process a group of people exited the tavern and chased the
deceased. When the group of people aligned from the bakkie the
deceased
was lying on the ground. Thereafter Tseka, Thuso and
Oupa arrived.
[26]
He testified that he informed the Court that Tseka stabbed the
deceased and that the Plaintiff
reprimanded Tseka. He
specifically testified that from the Plaintiff’s arrest he told
Ndaba, the State Prosecutor and
the Court the same story and
identified the person who stabbed the deceased. He testified
that he spoke two (2) to three
(3) times to the prosecutor and three
(3) times to the police.
[27]
During cross-examination the witness was asked whether he made a
statement to the police whereto
he answered that did make a statement
after Plaintiff and others were arrested. During cross-examination
the witness was referred
to page 73 of Bundle 3, a statement deposed
to by the witness. The witness was pointed to the date of
2017/07/29 and paragraph
2 of his affidavit which contains the same
date. The witness could however not indicate if he made the
statement on the same
day that the incident took place. On the
Court’s questions he indicated that the incident took place on
the Saturday
but that he did not make a statement on this day.
He was further referred to the affidavit that he testified in
examination
in chief that was dated the 2
nd of
August
2017. It was indicated to the witness that the warning
statement for the Plaintiff was dated the 3
rd of
August
2017. The witness testified that he remembers that he made the
statement and that he was not forced to make the statement
and that
he made the statement voluntarily.
[28]
The witness testified that he confirms paragraph 3 and 4 of the
statement which reads as follows:
“
I saw
that a group of people who left the tavern assaulting the deceased.
Out of the group I could only recognize Mr Oupa
and Mr Thuso because
I know them and know where they stay. After the assault on the
deceased, I then saw Mr Tseka taking
a knife out of his pocket and he
went to the deceased and stabbed him whilst he was lying down, he
then went back again stabbing
him and the deceased was lying on the
floor. I recognized Mr Tseka because I know him and I also know
where he is staying.
”
[29]
During cross-examination the witness was asked why he did not tell
Mr. Ndaba that only Mr Tseka
told him that he must keep whatever he
saw to himself, otherwise he will see what happens to him. The
witness answered that Mr
Ndaba informed him that he will get into
trouble if he makes statements that exonerated the Plaintiff.
During re-examination
he testified that Mr Ndaba said that he must
also say that the Plaintiff was involved.
[30]
The only version put to Mr Motloung by the Defendants was that
members of the First Defendant
arrested the Plaintiff based upon the
statement of Mr Motloung. No version of the Second Defendant
was put to Mr Motloung.
It was not disputed that Mr Motaung on
numerous occasions informed members of the First and Second
Defendants of the non-involvement
of the Plaintiff in the death of
the deceased.
[31]
After the two witnesses the Plaintiff proceeded to close its case.
An application for absolution
from the instance was made. I
dismissed the application for absolution from the instance.
Evidence
on behalf of the Defendant’s case:
[32]
The Defendant called three witnesses.
Evidence
of Sergeant Ndaba:
[33]
He testified that he currently holds the rank of Sergeant. During the
year of 29 July 2017, he
held the rank of Constable, and he was
stationed at Phuthaditjhaba. He testified that on the 29
th
of
July 2017 he was called to attend to a scene where a
deceased person was lying next to the road. He noticed that the
deceased
had stabbed wounds. He asked members of the community
in the vicinity if they could provide any information relating to the
events which led to the death of the deceased. Nobody knew what
happened. He was only informed that there was some
incident at
a nearby tavern which led to the deceased’s death.
[33.1]
Later the morning he went to Zillie’s Tavern.
He enquired
if anyone could provide information. He testified that a person
known as Thabiso Motaung volunteered to assist
him. Mr Ndaba
testified that Mr Motaung informed him that the deceased had a
quarrel with the brother of Tseka and that the deceased
hit the
brother with a bottle. Mr Ndaba testified that Mr Motaung also
informed him that the deceased then left the tavern, a group
of
people chased the deceased, some were in a “
bakkie
”
and Mr Motaung joined the group. Mr Ndaba testified that Mr
Motaung further informed him that when Mr Motaung got
to the
industrial area the deceased was lying on the ground being assaulted
by a group of people and the deceased was on the floor.
Mr
Ndaba testified that Mr Motaung then informed him that Mr Motaung
could identify Thuso and Oupa and saw that Tseka stabbed
the
deceased.
[33.2]
Mr Ndaba
asked if Mr Motaung could assist with the addresses
of the suspects.
Mr Ndaba stated that Mr Motaung said he would but also said he did
not want others to see him assisting the police.
Mr Ndaba
testified that Mr Motaung informed him that on the day following the
incident the suspects told him not to disclose
any information.
Mr Ndaba asked Mr Motaung to come to the police station to make a
statement. Mr Ndaba stated that
the statement that Mr Motaung
made was dated the 29
th of
July 2017. After Mr
Motaung made his statement, he asked Mr Motaung if he could show him
where the suspects reside.
Mr Motaung took him back to the
tavern and arranged that Sergeant Ndaba would return to take Mr
Motaung to point the places of
residence.
[34]
He testified that on the 3 August 2017 he fetched Mr Motaung to show
the addresses. At
first nothing was mentioned of any
discussions between him and Mr Motaung on the 2
nd of
August 2017. Upon a leading question being posed he testified
that Mr Motaung made a second statement on 2 August 2017.
He
testified that he went to Mr Motaung’s residence and took Mr
Motaung to the police station. He required a second
statement
as Mr Motaung’s first statement had insufficient detail.
He wrote the statement as Mr Motaung gave the information.
[35]
In the second statement the witness read paragraphs 3 and 4. Mr Ndaba
in his own words explained
that Mr Motaung saw a group of people
chasing the deceased and Mr Motaung saw a group of people assaulting
the deceased.
He testified that the information was volunteered
by Mr Motaung and that he did not add anything as he at that stage
had no information
as to the events or suspects. Mr Ndaba explained
in his own words with reference to paragraph 4 of the statement that
Mr Motaung
out of the group of people assaulting the deceased
identified Thuso and Oupa and saw Tseka stabbing the deceased.
[36]
Upon being questioned as to what went through his mind whilst reading
the statement, he testified
that a person was murdered, and he wanted
to establish who did it. He stated that if a witness says
persons 1, 2 and 3 were
assaulting another and one of them stabbed
that person he would then have to arrest the suspects based on common
purpose.
He further testified that he is not a medical expert,
and he did not know who killed the deceased and that fingers point to
the
group of people. It appeared to him that the suspects are
known. He testified that in some instances suspects who
committed
crimes run away. Hence, he took Mr Motaung the
following morning to show the suspects’ addresses where they
reside.
He testified that he went early in the morning to
increase the possibility of an arrest.
[37]
On the morning of the 3
rd of
August 2022 he went to the
Plaintiff’s residence. He found the Plaintiff’s
mother in the kitchen and introduced
himself as a police official.
The Plaintiff’s mother went to wake the Plaintiff who was
sleeping. He identified
himself as a police officer and
informed the Plaintiff that he was arrested for murder. He then
informed the Plaintiff of
his rights and placed the Plaintiff in the
police vehicle. He testified that it is a police officer’s
duty not to decide
if a suspect is guilty or not. He simply
looks at the evidence and leaves the rest for the Court. He
formed the view
that the Plaintiff was part of the group that
assaulted the deceased and that he must arrest him.
[38]
After arresting the Plaintiff and the other suspects he proceeded to
the police station. He testified
that he issued each person with
their rights. He further testified that when he arrested the
suspects, they did not dispute
that they were involved in the assault
they just kept quiet. Mr Ndaba testified that he must arrest a
suspect because if
you interview them, they sometimes run away. He
conceded that he only conducted an interview with the Plaintiff at
the holding
cells after his arrest. Mr Ndaba was questioned as to the
process of arrest, when arrest may be effected and whether he applied
his discretion. Mr Ndaba responded that if a complaint is made, a
police officer must arrest. He did not have any other discretion
as
suspects sometimes run away. Mr Ndaba conceded that he could not
provide any alternatives other than arrest. Mr Ndaba testified
that
he did not apply for a warrant because it sometimes takes time and
sometimes suspects run away.
[39]
In cross-examination Mr Ndaba was referred to the statement dated 29
July 2017, which did not
identify any suspects, other than the driver
of the bakkie. Mr Ndaba replied by stating that he confused the
events. It was put
to Mr Ndaba that he could not have discussed any
suspects or any pointing of addresses and hear anything of any
intimidation as
it would not yet have occurred, Mr Ndaba conceded
that he had no information of any suspects on the 29
th
of
July 2017. In cross-examination Sergeant Ndaba was confronted with Mr
Motaung’s version that the second statement dated
the 2
nd
of
August 2017 was in fact only taken on the 3
rd of
August 2017 after the Plaintiff’s arrest. Sergeant Ndaba
was referred to the investigation diary wherein the statement
was
only recorded on the 3
rd of
August 2017. It was
further pointed out that there were duplicate entries in the case
dockets for annexures “A10”
being a notice of rights, and
a second “A10” being Motaung’s second statement.
Mr Ndaba stated that it
was an administrative error and that Mr
Motaung’s statement was only recorded as an entry the next day
because Mr Ndaba had
other duties. It was further in
cross-examination put to Sergeant Ndaba that paragraph 4 of Motaung’s
second statement
does not state that Thuso and Oupa assaulted the
deceased but only that they were identified as part of a group that
was present.
It was further pointed out that the statement
specifically identified Tseka as the person who was stabbed.
[40]
At this stage Sergeant Ndaba became argumentative whilst presenting
his evidence. Sergeant
Ndaba could not identify any specific
act of assault from the statement of Mr Motaung.
[41]
During cross-examination Sergeant Ndaba confirmed that the Plaintiff
did give an explanation
at the holding cells which he did not
consider as being important and failed to record the Plaintiff’s
explanation anywhere
in the docket. He testified that he left
the further process to his colleagues and went to his office to
complete paperwork.
[42]
Sergeant Ndaba testified that he opposed the Plaintiff’s bail
because there might be other
suspects and the community was waiting
for him. Sergeant Ndaba was referred to the bail information
form where he opposed
the bail. He confirmed that the Plaintiff
had a fixed address, that he was easy to trace, that he did not evade
arrest, that
he was cooperative with the police, that he was no
danger to the community and that he will not interfere with the
witnesses, but
still proceeded to oppose bail. He further
conceded that he knew that based upon his recommendation to oppose
bail that the
Plaintiff could be incarcerated. Mr Ndaba could not
remember if he informed the prosecutor that the Plaintiff denied his
involvement,
he answered that they discussed a lot of things. Mr
Ndaba conceded that in the two-year period which passed no other
information
what obtained save for what was in the docket.
Evidence
of Mr Goodman Makanya:
[43]
He testified that during the time of the incident he was the Regional
Court Control Prosecutor
at Phuthaditjhaba Magistrate’s Court.
He was the responsible person in charge of deciding whether matters
were to be
transferred from the District Court to the Regional
Court. He testified that there was also a District Court
Control Prosecutor
involved in matters in the District Court where
the Plaintiff’s case was pending for plus minus a year, when
numerous postponements
occurred and where the bail application was
eventually heard after approximately seven (7) months, before being
transferred to
the Regional Court. He testified that his duties
included reading the docket from the District Court and assisting
with guidance
of the investigating officer. His decision to
continue with the prosecution was based solely upon the statement of
Mr Motaung.
He confirmed that no further evidence was presented
in the almost two (2) years duration of the criminal trial that could
link
the Plaintiff to the alleged offences. The witness attempted to
explain the reason for the long delays and protracted bail
application
and trial. In the latter regard he referred to the notes
of the presiding Magistrate.
[44]
He decided to proceed with the prosecution based upon the statement
of Mr Motaung on a provisional
charge of murder only. He
initially testified that the Plaintiff was charged for additional
offences of robbery and intimidation
but later conceded that this was
incorrect. He apparently only consulted with Mr Motaung after
approximately eight (8) months
after prosecution was initialized and
after a bail application was opposed by the Defendant. He
testified that he gave instructions
to the investigating officer and
the prosecutor to oppose bail.
[45]
In his evidence he stated that all the perpetrators got into a van.
Some assaulted, some
stabbed and some were part of the group.
He stated that the Plaintiff was identified as part of a gang
implicated in murder
and robbery the prosecution was to proceed.
He could not state who of the group fell in which of these categories
and placed
reliance on the affidavit of Mr Motaung. It was
pointed out that Mr Motaung states in paragraph 4 that out of the
group he
could only identify the Plaintiff and Oupa and that he saw
Tseka stabbing the deceased and that no mention was made of any
specific
act of assault wherein the Plaintiff was identified other
than being part of the group. He however insisted that the only
interpretation is that the Plaintiff was part of the group who
assaulted, despite him not being able to state who fell into which
of
the alleged identified categories.
[46]
In cross-examination he confirmed that he reads the docket, makes
entries and provides instructions
to the investigating officer.
He does not consult. Only upon being questioned he then changed
his version to state
that he did indeed consult the investigating
officer and the State’s only witness. He did however not
make any notes
of the alleged consultations. Mr Makanya
was asked whether Sergeant Ndaba informed him of the Plaintiff’s
version
that the Plaintiff was involved in the offence. He
stated that he could not recall but that it would not have made any
difference
as he would not consider it in reaching a decision to
prosecute, because he had a witness who implicated the Plaintiff.
Mr
Mutyaba’s only entry in the docket wherein a consultation
with the witness was requested on the 23
rd of
April 2018,
almost eight (8) months after the arrest and after the bail
application. When requested as to the delay Mr Mutyaba
testified that due to his workload he could not consult before.
Mr Mutyaba could therefore not dispute Motaung’s version
that
he informed the prosecutor from the inception that the Plaintiff was
not involved in the alleged assault and/or murder.
The
next witness Mrs Maponya:
[47]
She testified that she was a Regional Court Prosecutor involved in
the criminal trial.
She confirmed that she was not involved in
the District Court or bail proceedings. No evidence has been
presented from the
Defendants from any prosecutor involved in the
District Court. She testified that she received a docket from
the Control
Prosecutor Mr Mutyaba on 16 May 2018. She read the
docket and satisfied herself with the content. She formed a
prima facie
view to place the matter on the roll. She
testified that when she was satisfied that there was a
prima facie
case then she places the matter on the roll. The matter is
then placed on the roll and postponed for a consultation.
She
testified that she did consult with the witness in this matter
Thabiso. She consulted with Mr Motaung by reading his
statement
in English. She then interpreted the statement in Sotho to him
and then gave him the statement to read himself.
Mr Motaung
apparently confirmed the correctness thereof.
[48]
Later in cross-examination she testified a new
version that apparently Mr Motaung saw the Plaintiff kicking
the
deceased. This was the first mention of any witness of any
specific assault of the Plaintiff on the deceased throughout
the
trial never put to the Plaintiff’s witnesses. When
questioned she was informed by Sergeant Ndaba of the Plaintiff’s
statement that he was not involved in the offence, she replied that
she was not and that it would not have made a difference if
she were
as, it would not have influenced her decision to proceed with the
prosecution. She further testified that Mr Motaung’s
evidence in Court deviated from his statement. He testified
about the incident but in relation to the Plaintiff that he only
saw
the Plaintiff in the group but did not testify that the Plaintiff was
involved in any assault. She further testified
that she did not
consider declaring Mr Motaung a hostile witness and confirmed her
submissions to the Criminal Court as per the
record of the Section
174 proceedings that the State did not oppose the discharge as there
was no evidence linking the Plaintiff
to the murder other than the
fact that he was present as part of the group. She further
confirmed that Tseka was convicted
of murder on the evidence of Mr
Motaung. She further testified that the charges were not withdrawn
after Mr Motaung’s evidence
that the Plaintiff was not
involved.
APPLICABLE
LEGAL PREDEDENT:
[49]
National Employers Mutual General Insurance Association v Gany
1931 AD 187
at 199
it was stated that:
“
Where
there are two stories mutually destructive before the onus is
discharged, the Court must be satisfied that the story of the
litigant upon whom the onus rests is true and the other false.
”
[50]
In terms of
Section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
a peace officer may without a warrant arrest any person whom he
reasonably suspects of having committed an offence referred to
in
Schedule 1 other than the offence of escaping from lawful custody.
[51]
In
Minister of Law and Order and Others v Hurley and Another
1986
(3) SA 568
(A)
it was stated that an arrest constitutes an
interference with the liberty of the 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.
[52]
In
Ngema v Minister of Police 2012 (05081/2011) ZAGPJHC 104 at
para [6]
it was held that:
“
It is
trite that the onus rests on the arresting officer and therefore the
defendant who proves justification for the arrest and
detention
(see: Zeeland v Minister of Justice and Constitutional
Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) at para
[24]
and [25].
The termination of this issue requires me to assess the credibility
of the witnesses.
”
[53]
In
Motsei v Minister of Police, in re: Phefadu v Minister of
Police (6524/12) [2014] ZAGPPHC 567 (23 May 2014)
, it was held
that:
“
[6]
ARREST AND DETENTION
:
6.1
Section 40
of the
Criminal Procedure Act 51 of 1977
provides the list
of offences where police officers may arrest offenders without a
warrant. It states that a peace officer
must entertain a
suspicion that the arrestee committed an offence referred to in
Schedule 1 and that the suspicion must rest on
reasonable grounds.
The rational for the stringent approach is that in most claims for
damages at common law for wrongful
arrest the Courts have always
adjudicated upon the requirement for such claim that the defendant
acted without reasonable and probable
cause for effecting the
arrest. There are a myriad judicial, academic and media reports
about the public disquiet on the
abuse by some peace officers of the
provisions of
Section 14(1)
because they arrest persons merely
because they have ‘the right’ to do so but where under
the circumstances an arrest
is neither objectively nor subjectively
justified.
6.2
The liberty of an individual is constitutionally enshrined in the
right of freedom and security Section 12
of the Constitution of the
Republic of South Africa Act 108 of 1996. This point was
restated by Bertelsman J in Louw v Minister
of Safety and Security
2006 (2) SACR 178
(T) 186 a – 187 e that an arrest is a drastic
measure invading a personal liberty and it must be justifiable
according to
the demands of the Bill of Rights. “[Police] are
obliged to consider in each case when a charge has been laid for
which suspect
might be arrested whether there are no less invasive
options to bring the suspect before the Court that an immediate
detention
of the person concerned
.
“
The Constitution does not
espouse a dispensation of arbitrary deprivation of freedom of
movement and security. The Court authoritatively
cited the case
of Mhaga v Minister of Safety and Security
2001 (2) All SA 534
(Tk),
where the Court held that in a case where a police officer had
arrested and detained a person once the arrest and detention
is
admitted the onus of proving the lawfulness thereof rest on the
State.
6.3
Arrest and detention is prima facie wrongful and unlawful and is
there for the defendant to allege and prove
lawfulness of the arrest
or detention.
See
:
Brand v Minister of Justice
1959 (4) SA 712
(A) at 714.
Minister of
Law and Order v Hurley
1986 (3) SA 568
(A) at 587 to 589
Minister van
Wet & Orde v Matshoba
1990 (1) SA 280
(A)
Stambolie v
Commission of Police
1919 (2) SA 369
(25C)
Lombo v
African National Congress
[2002] 3 All SA 577
(SCA);
2002 (5) SA 668
(SCA) at para [32]
”
[54]
In
Minister of Safety and Security v Sekhoto and Another
[2011] 2
All SA 157
(SCA) at para [28] Harms, DP held:
“
Discretion:
[28]
Once the jurisdictional facts for an arrest whether in terms of
Section 40(1) or in terms of Section 43 are present
a discretion
arises. The question whether there are any constraints on the
exercise of discretion powers is essentially a
matter of construction
of the empowering statute in a manner that is consistent with the
constitution. In other words once
the required jurisdictional
facts are present the discretion whether or not to arrest arises.
The officer, it should be emphasized,
is not obliged to effect an
arrest. This was made clear by this Court in relation to
Section 43 in Groenewald v The Minister
of Justice.
”
[55]
In
State v Lubaxa
2001 (2) SACR 703
(SCA) at para [19]
it was
held that:
“
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
recognized 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
(Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A) at 135 C
– E, and the constitutional protection afforded to dignity and
person of freedom (s 10 and s 12) seems to reinforce
it. It
ought to follow that if a prosecution is not commenced without that
minimum of evidence so too should it cease when
the evidence finally
falls below that threshold that will be pre-eminently be so where the
prosecution has exhausted the evidence
and the conviction is no
longer possible except by self-incrimination.
”
[56]
In
May v Union Government
1954 (3) SA 121
(N)
it was held that
a prosecutor’s function is not merely to have the matter placed
on the roll to then simply be postponed for
further investigation.
A prosecutor must pay attention to the contents of his docket.
A prosecutor must act with objectivity
and must protect the public
interest.
[57]
In
Minister of Justice and Constitutional Development v Moleko
(2008) ZASCA 43
[2008] 3 All SA at 47 (SCA) at para [8]
it was
held:
“
Claim
for malicious prosecution requirements
:
[8]
In order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege
and prove –
8.1
That the defendant set the law in motion (instigated or instituted
the proceedings);
8.2
That the defendant acted without reasonable and probable cause;
8.3
That the defendant acted with malice (or animo iniuriandi), and
8.4
That the prosecution has failed (in this case of course Mr Moleko was
acquitted at the end of the criminal
trial and requirement (d) need
detain as no further).
[11]
With regard to the liability of the police, the question is whether
they did anything more than one would expect
from a police officer in
the circumstances, to give a fair and honest statement of the
relevant facts to the prosecutor, leaving
it to the latter to decide
whether to prosecute or not.
”
[58]
In
Minister of Police and Another v Du Plessis
2014 (1) SACR 217
(SCA)
it was held:
“
[12]
as explained by Harms DP in Sekhoto the relevant decision is no
longer than 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
information furnished to him by the police and decided to proceed
against all the accused, including both plaintiffs
… in my
view the role of the prosecutor in charging suspects is an important
one. The first plaintiff was nothing
other than an innocent
bystander but after arrest he was in the hands of the authorities, he
was reliant upon them to assess the
evidence against him objectively
and competently. His liberty was at stake. If the
decision went against him, he was
then in the hands of the Court in
the sense that the liberty could only be recovered by way of a bail
application. He was
therefore reliant on Mr Pretorius to
conscientiously apply his mind to the docket.
”
[59]
In
Woji v Minister of Police (24) ZASCA 108,
2015 (1) SACR 409
(SCA)
referred to with 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 that the Minister was liable for post-appearance
detention where the wrongful and culpable conduct of the police
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 or through the prosecutor.
[60]
In
S v Mahlangu supra
the Constitutional Court 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. It is the police officer’s duty to apply
his/her mind to the circumstances relating to a person’s
detention including applying his/her mind to the question whether
detention is necessary at all. This information, which must
have been established by the police officer, will enable the public
prosecutor in venturing the Magistrate to have an informed
decision
whether or not there is any legal justification for the further
detention of the person
[61]
In
Bolekwa Nokeke v Minister of Safety and Security and Anther
(case number 1089/07) Eastern Cape Transkei judgment,
delivered
on 9 May 2008 where Plaskett, J said at paragraphs [88] and [94]:
“
[88]
Section 39(3) does not purport to render detentions that follow
unlawful arrests valid. Instead, it operates from
the
presupposition that the arrest will be valid. Understood in
this way, it means that if a person is lawfully arrested
that person
will then be in lawful custody until he/she is lawfully discharged or
released. The converse holds true as well,
if the arrest of the
person is unlawful his/her subsequent detention will also be
unlawful.”
[62]
In
Masilela v Leonard Dingler (Pty) Ltd 2004 (25) ILJ 24 (LC)
,
it was held that:
“
[28]
… it is trite that if a party wishes to lead evidence to
contradict an opposing witness, he should first cross-examine
him
upon the facts that he intends to prove in contradiction, to give the
witness an opportunity for explanation. Similarly,
if the Court
is to be asked to disbelieve a witness he should be cross-examined
upon the matters that it will be alleged make his
evidence unworthy
of credit.
”
[63]
In
Small v Smith
1954 (3) SA 434
(SWA)
, Claasen J said at
[438]:
“…
it
is grossly unfair and improper to let a witness’ evidence go
unchallenged in cross-examination and afterwards argue that
he must
be disbelieved.
”
[64]
In
the President of the Republic of South Africa and Others v
South African Rugby Football Union and Others
2000 (1) SA 1
(CC)
,
it was held that if a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords
in
Brown v Dunn
and has been adopted and consistently followed by
our Courts.
[65]
In
Knoxmani v Minister of Police and Another
(123/2017) [2020] ZAECBHC 27 (13 October 2020)
, the Court held as
follows:
“
[132]
With regard to the claim of malicious prosecution, the plaintiff
bears the onus to allege and prove that the defendants, (through the
persons of Mnonopi and the prosecutors involved) instigated
the
proceedings that in doing so they had no reasonable and probable
cause, that they acted animo iniuriandi, and that the prosecution
failed (69) the first and last elements of this cause of action are
not in contention.
[133]
Reasonable and probable cause in the context of this claim means ‘an
honest belief founded on reasonable grounds that
the institution of
proceedings is justified’ (70) the concept, as stated in
Relyant Trading (Pty) Ltd v Shongwe, (71) involves
a subjective and
an objective component: the requirement for malicious arrest
and prosecution that the arrest and prosecution
be instituted ‘in
the absence of reasonable and probable cause’ was explained in
Beckenstrater v Rottcher and Theunissen
(1955) 1 SA 129
(A) at 136 A
– B as follows:
‘
when
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that it 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 this proves the existence, for the defendant, of
reasonable probable cause. It follows that a defendant
will not
be liable if he/she had a genuine belief founded on reasonable
grounds in the plaintiff’s guilt. Where reasonable
and
probable cause for an arrest or prosecution exists the conduct of the
defendant instigating it is not wrongful. The requirement
of
reasonable and probable cause is a sensible one: “For it is of
importance to the community that persons who have reasonable
and
probable cause for prosecution shall not be deterred from setting the
criminal law in motion against those whom they believe
to have
committed offences, even in so doing they are actuated by indirect
and improper motives.”
[145] In my
view no reasonable and probable cause existed for the police to
charge the plaintiff with robbery with aggravating circumstances
on
the basis that he was complicit with the two perpetrators who
Skenjana described in his statement. At best there might
have
been a reasonable basis to charge him with a contravention of Section
36 of the General Law Amendment Act no. 62 of 1955,
since his vehicle
was found in compromising circumstances in relative proximity to the
stolen cigarettes, assuming an interrogation
into its reasons for
being ‘in possession’ of this stash.
[146] I
believe that Mnonopi must at the very least have foreseen the
possibility that he was acting wrongfully by persisting with
the
prosecution on the charge of robbery with aggravating circumstances
on the supposed premise (not evidence) of a syndicate (which
would
necessarily entail that it would be difficult for the plaintiff to be
released on bail and that he would as a result continue
to be
detained pending the trial) but nevertheless continue to act reckless
as to the consequences of his conduct and the pecuniary
harm to the
plaintiff, thus establishing the necessary element of intent.
[147] The
same applies to the prosecutors. Both would have been expected
to have regard to the contents of the docket and
to have applied
their minds diligently to the question whether there was a reasonable
cause for the prosecution and the minimum
of evidence on which to
mount such prosecution. (74)
[148] In
Singatha and Another v Minister of Police and Another (75) the Court
emphasized the special role of a public prosecutor
in prosecutions to
act with professional integrity:
‘
With
regard to the role of the prosecutor, the plaintiff’s placed
reliance on the decision in Minister of Police and Another
v Du
Plessis where it was held that the prosecutor may not act
arbitrarily. He must act with objectivity and in the public
interest. This means that ‘a prosecutor’s function
is not merely to have the matter placed on the roll to then
simply be
postponed for further investigation. A prosecutor must pay
attention to the contents of his docket. As set
out above, a
prosecutor must act with objectivity and must protect the public
interest. In the present case that was not
done.’ A
prosecutor occupies a special position in relation to the Court and
his paramount duty is to assist the Court
in ascertaining the truth.
In doing so he plays a vital role ensuring due process and the role
of law as well as respect
for the rights of all parties involved in
the criminal justice system.
[149] In
Minister of Police v Du Plessis (76) the Court had especially focused
on the prosecutor’s obligation to exercise
a discretion on the
basis of the information before him/her and the critical position in
which that person stands at the commencement
of a prosecution: ‘[28]
once an arrestee is brought before Court, in terms of s 50 of the
Criminal Procedure Act 51 of 1977
(CPA), the police authority to
detain, inherent in the power of arrest, is exhausted. In this
regard see Minister of Safety
and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA) at para [42]. As pointed out by Campbell, AJ
in the Court below before the Court makes a decision on continued
detention
of an arrested person comes the decision of the prosecutor
to charge such a person. A prosecutor has a duty not to act
arbitrarily.
[77] A prosecutor must act with objectivity and must
protect the public interest [78] …
[150] In this
instance not only was there a lack of the required objectivity on the
part of the prosecutors in carefully assessing
the strength of the
State’s case and its prospects of success in the prosecution,
but Ngxokolo plainly made himself guilty
of putting a spin on that
case that did not exist and could not be reconciled with the contents
of the docket. Whether he
was taken in by what Du Preez averred
in his statement concerning the complainants supposed pointing out of
the plaintiff or not,
we ought to be mindful of the fact that
Skenjana in his statement did not implicate the plaintiff at all.
Further, he should
have been aware that it was dangerous to read into
Maqidlana’s statement the suggestion that he had earlier seen
the plaintiff’s
vehicle in compromising circumstances following
the transporter whilst it was evidently being driven by a man other
than Skenjana
who he was expecting, wearing a mask and speeding by.
Both he and Lande who should have made his own assessment of the
strength
of the State’s case prior to proceeding on trial,
should also in my view have foreseen the possibility that they were
acting
wrongfully by pursuing the prosecution with vigour (thus
prolonging the plaintiff’s detention for as long as the
prosecution
endured) whereas the statement in the docket were in
conflict and the person best placed to identify, the perpetrators as
being
involved in robbery had not implicated him, but nevertheless
continued to act, reckless as to the consequences of their conduct.
[151] this
outcome is however just another incident of the pleaded absence of
reasonable and probable cause to have charged the
plaintiff for
robbery with aggravating circumstances. It simply added to the
inevitable position of the plaintiff that, pending
the determination
of the impugned proceedings, he would have to, and did, remain in
detention for a lengthy period.
[152] In the
premises I am satisfied that the plaintiff has discharged the onus
resting on him to prove his claim of malicious prosecution
against
both defendants who are liable to pay jointly and severally for
damages suffered in respect of contumelia.
[153] In
respect of the issue of damages, firstly in respect of the separate
claim for unlawful detention, the plaintiff was detained
for a period
of three days and a few hours. Mr Kalimashe submitted that an
award of R100 000.00 was adequate solatium for
such deprivation of
his liberty consistent with comparative awards. Such an assertion
cannot be faulted.
[155] In
respect of the plaintiff’s unlawful detention from the period
25 May 2015 when he first appeared before the Reception
Court up to
where he was released subsequent to his acquittal on 20 December
2016, (80) Mr Kalimashe submitted, without any demur
from Mr Frans
that a reasonable award of damages was in the sum of R900 000.00.
He submitted that the plaintiff’s detention
must have brought
unbearable hardship to him and entailed his separation from his
family even over the Christmas period in 2015.
I cannot
disagree. The period of detention was considerably long to have had a
hugely deleterious impact upon his life and sense
of well-being.
[156] As for
the malicious prosecution claimed, Mr Kalimashe submitted that an
amount of R500 000.00 was adequate compensation.
I agree that
this is not an unreasonable award and that it fairly represents the
impairment of his reputation and sense of self-worth.
[157]
Although the claim for malicious prosecution is brought against
defendants alleged to have acted in concert (although not
prayed for
jointly and severally in the particulars of claim). It is clear
from the evidence and Mr Kalimashe’s closing
submissions that
the premise for this claim is that Mnonopi and the prosecutor both
made themselves guilty of their own separate
conduct with which to a
different effect contributed causally to the continued detention of
the plaintiff after his arrest pending
the finalization of the
criminal trial (in turn causing the personality impairment).
”
[66]
In
Rahim v the Minister of Home Affairs
2015 (4) SA 433
(SCA) at
para [27]
the Court stated:
“
The
deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where damages are claimed the extent
of damages
cannot be assessed with mathematical precision. In such cases
the exercise of a reasonable discretion by the Court
and broad
general considerations play a decisive role in the process of
quantification. This does not, of course, absolve, a plaintiff
of
adducing evidence which will enable a court to make to make an
appropriate and fair reward. In cases involving deprivation
of
liberty the amount of satisfaction is calculated by the Court ex
aequo et bono. Inter alia the following factors are relevant:
(i)
Circumstances on a wish to
deprivation of liberty took place;
(ii)
The conduct of the defendants;
(iii)
The nature and duration of the
deprivation.
”
[67]
In
Msongelwa v Minister of Police
2020 (2) SACR 664
ECM
the
Plaintiff spent 158 days in custody. He was also shot during
his arrest. He was awarded a sum of R5 million.
EVALUATION:
[68]
After considering the evidence and the case law stated herein, I came
to the findings as set
out below.
[69]
Mr Ndaba, with specific reference to evidence as outlined herein, did
not apply his discretion.
On Mr Ndaba’s own version he had to
arrest the Plaintiff and he did not have any other discretion as
suspects sometimes run
away. The manner of investigation raises
further concern. The suspects were arrested without
any opportunity
to provide an explanation. Mr Ndaba testified
that he only allows for an explanation after arrest at the holding
cells. This
version correlates with the Plaintiff’s testimony
that he was instructed not to speak after his arrest whilst being
driven
in the police “
bakkie
”.
[70]
There are also administrative issues pertaining to
the docket, a duplication of numbers on evidence, versions
of
suspects not recorded, and apparent late entries in the docket.
Mr Ndaba without sound reasons did not apply for a warrant.
No
further investigation was conducted to link the Plaintiff to the
alleged offence from the Plaintiff’s first appearance
in Court
up until his discharge, despite numerous postponements for further
investigation and the criminal trial proceeding for
two (2) years.
[71]
Mr Motaung’s version was not disputed in cross-examination.
Furthermore, no version
of the Defendants disputing his evidence was
put to him.
[72]
Mr Ndaba’s evidence was that the Plaintiff was a person of
interest because, he was a part
of a group that assaulted the
deceased that is why he arrested him. The latter supports the
fact that the Plaintiff was arrested
simply for being a part of the
group.
[73]
In my view there was no evidence to link the Plaintiff to the death
of the deceased. Furthermore,
despite being informed of the
identity of Mr Tseka who stabbed the deceased and despite being
informed of the Plaintiff’s
version, which Mr Ndaba did not
regard as important, Mr Ndaba persisted with the charge of murder and
opposed the bail application.
[74]
Mr Ndaba opposed the Plaintiff’s bail application for the
reason as set out herein that
“
there might be other suspects
and the community was waiting for him
”. Mr Ndaba was
referred to the bail information form where he opposed the bail.
He on his own version confirmed
that the Plaintiff had a fixed
address, that he was easy to trace, that he did not evade arrest,
that he was cooperative with the
police, that he was no danger to the
community and that he will not interfere with witnesses, but despite
the latter he still proceeded
to oppose bail. Importantly Mr
Ndaba conceded he knew that based upon his recommendations to oppose
bail the Plaintiff could
be incarcerated.
[75]
In my view Mr Ndaba did not form a reasonable suspicion that the
Plaintiff committed the offence
of murder. Mr Ndaba on his own
version arrested the Plaintiff without affording the Plaintiff an
opportunity to proffer an
explanation. Mr Ndaba testified that
once a complaint is made, he must arrest. He therefore did not
apply any discretion
and did not consider any alternatives other than
to arrest. Mr Ndaba confirmed that he did not record the
Plaintiff’s
version and opposed the bail and that he could not
recall if he informed the prosecutor of the Plaintiff’s
version.
Mr Ndaba further conceded that he knew that the
Plaintiff could be incarcerated if bail is opposed.
[76]
Importantly it was not disputed that Mr Motaung informed the members
of the First Defendant that
the Plaintiff was not involved in any
assault or murder on the deceased. Furthermore, no version to
the contrary of the Defendants’
witnesses were put to the
Plaintiff.
[77]
The only conclusion that can be drawn from the evidence before me is
that the Plaintiff’s
arrest and subsequent detention was
unlawful. The First Defendant has not overcome its onus proving
justification for the
arrest and detention and has not shown
compliance with the jurisdictional requirements. As stated
herein it has been conceded
that Mr Ndaba knew the Plaintiff’s
bail could be refused based upon his opposition. The First
Defendant is liable to
compensate the Plaintiff for damages suffered
as a result of his unlawful arrest and detention up until his release
after the Section
174 discharge.
[78]
No evidence was presented by the Defendants of any of the District
Court prosecutors, neither
from the prosecutor attending to the first
appearance nor from the prosecutor attending the opposition of bail,
up until the transfer
of the matter to the Regional Court.
There is thus no evidence before me to justify the institution and
continuation of the
prosecution or opposition to the bail
proceedings. No explanation was proffered from the prosecutor who
attended to the bail proceedings
as to what transpired and why the
State closed its case without calling any evidence. There is
thus no evidence before me
to justify the bail being opposed.
Mrs Maponya testified that she received the docket from the control
prosecutor Mr
Mutyaba on the 16
th of
May 2018. She
read the docket and satisfied herself with the content. She
testified she formed a
prima facie
view to place the matter on
the roll. The matter was placed on the roll prior to
consultation with Mr Motaung. It is
evident that a
prima
facie
view was formed solely on the statement of Mr Motaung,
wherein Mr Tseka is identified as the person who stabbed the deceased
[79]
Mr Mutyaba could not dispute Mr Motaung’s version that he
informed the prosecutor from
the inception that the Plaintiff was not
involved in the alleged assault or murder. In my view and
according to the evidence
before Court Mr Makanya’s decision to
continue with the prosecution was based solely upon the statement of
Mr Motaung.
Mr Makanya’s confirmed that no further
evidence was presented in almost two (2) years duration of the
criminal trial that
could link the Plaintiff to the alleged
offences. It is once again emphasized that Mr Motaung’s
version was uncontested,
and no version was put to Mr Motaung
disputing as to what he testified by informing the police and
prosecutors on various occasions
of the Plaintiff’s
non-involvement.
[80]
When explaining the reason for the long delays in protracted bail Mr
Makanya referred to the
notes of the presiding magistrate. He
however, had no personal knowledge of the delays as he was not
involved as the prosecutor
presenting the State’s case in
Court. He was only responsible for deciding what the charge was
and whether bail should
be opposed. Therefore, no evidence was
presented to justify the continued postponements for further
investigation and delays
in finalizing the bail proceedings in
criminal trial.
[81]
There was no evidence linking the Plaintiff to the murder. A
provisional charge of murder
with common purpose was not introduced,
only murder. On Mr Makanya’s own version he apparently
only consulted with
Mr Motaung approximately eight (8) months after
the prosecution was initialized and after the bail application was
opposed by the
Defendants. Mr Motaung’s statement
unequivocally identifies Mr Tseka as the person who stabbed the
deceased.
[82]
Mr Mutyaba attempted to place the blame of the delay in the
proceedings at the doorstep of the
judiciary. This was,
however, not the Defendant’s pleaded defence and was never put
to any of the Plaintiff’s
witnesses. Mr Mutyaba had no
personal knowledge of the numerous postponements and delays. He
also stated that the judiciary
determines whether bail should be
granted or refused. It is however, evident that no evidence was
tendered to the Magistrate
of the Plaintiff’s denial of being
involved which was within Mr Ndaba’s knowledge and no evidence
was presented from
the State’s sole witness who was
available.
[83]
Mrs Maponya testified that Mr Motaung apparently confirmed the
correctness of his statement.
This evidence was however not put
to Mr Motaung who testified repeatedly that he informed the police,
prosecutor, and the Court
that the Plaintiff was not involved.
Mr Motaung’s version was not disputed, and no version of the
Defendants’
witnesses was put to him. This issue was left
unchallenged in cross-examination, therefor Plaintiff is entitled to
assume that
his and Mr Motaung’s unchallenged testimony is
accepted as correct. Mr Motaung’s version that the
Plaintiff was
not involved in the assault or stabbing was given to
the members of the Second Defendant and was also his evidence in the
bail
proceedings. Mrs Maponya confirmed that Mr Motaung
testified in the criminal proceedings as per his version that the
Plaintiff
was not involved. In my view Mr Motaung’s
version is to be accepted as true.
[84]
No further factual evidence was obtained regarding the circumstances
of the murder. It
was undisputed that Mr Motaung informed the
prosecutor of the innocence of the Plaintiff. In the Section
174 application
the prosecutor informed the Court of the two (2)
years of prosecution that “
Your Worship the State indeed I
went through the evidence and at this stage I do confirm that with
regard to accused 1, it is said
that he was at the scene but at this
stage there is no evidence of his participation to the commission of
the offence.
”
[85]
Considering the content of Mr Motaung’s statement, the absence
of further information,
as well as the uncontested evidence of Mr
Motaung whereby the Plaintiff was exonerated, there was no basis to
proceed with the
prosecution. In my view the prosecutor did not
have such information as would lead a reasonable man to conclude that
the
Plaintiff had probably been guilty of the offence as charged.
[86]
It is highlighted that Plaintiff’s evidence that he was refused
bail is common cause.
The fact that the bail application was
heard and refused is not in dispute.
[87]
In considering the case law referred to in this Judgment, the fact
that Mr Motaung’s version
was not contested, the absence of
evidence implicating the Plaintiff, the manner of the investigations
and arrest, the fact that
bail was opposed and also opposed without
the prosecutor presenting evidence, the unreasonable delays, the
absence of evidence
from the prosecutors involved in the District
Court, the fact that the Plaintiff’s version was not conveyed
to the prosecutors,
the fact that the prosecutors testified that
Plaintiff’s version was irrelevant in reaching their decision
to prosecute,
the fact that Mr Motaung testified in the Criminal
Court as per his version throughout, even leading to the successful
prosecution
of Mr Tseka and the fact that Ms Maponya agreed to the
Section 174 discharge application stating that there is no evidence
that
the Plaintiff was involved other than being at the scene, I find
that the probabilities favour the Plaintiff’s version and
that
the subsequent continued detention and prosecution was thus
unlawful. The members of the Defendants had no probable
cause
to institute and proceed with the Plaintiff’s prosecution on
the charge of murder. They in fact had direct evidence
available to the contrary to prosecute Mr Tseka.
[88]
A reasonable person could not have led to conclude that the Plaintiff
was probably guilty of
the offence as charged. A reasonable
person could not
have
held a genuine belief founded on reasonable grounds in the
Plaintiff’s guilt. I am of the view that the Plaintiff
has proven malice and
animus iniuriandi
. The
Plaintiff was simply prosecuted because he was identified as per Mr
Motaung’s statement as being part
of a group, where the
deceased was assaulted and stabbed. Mr Tseka was identified
from the onset and no charge of assault,
was ever laid against the
Plaintiff.
[89]
No reasonable and probable cause existed for the police to charge the
Plaintiff with murder not
even on the basis that he acted in
furtherance of a common purpose. The investigating officer and
prosecutors should have
foreseen a possibility that they were acting
wrongfully by persisting with the prosecution on the charge of murder
on the supposed
premise (not evidence) of common purpose, but
nevertheless continued to act reckless as to the consequences of
their conduct and
the pecuniary harm to the Plaintiff thus
establishing the necessary element of intent. It is
expected that the members
of the Defendants would have regard to the
contents of the docket and applied their minds diligently to the
question whether there
was reasonable cause for the prosecution and
the minimum of evidence which to mount such prosecution.
[90]
The First and Second Defendant is thus to be held vicariously liable
for the conduct of its members
acting during the course and scope of
their employment.
[91]
The Plaintiff testified regarding the period of his detention as well
as the circumstances.
There is no need to reiterate same here.
In my view the awards as set out in the order that follows are the
appropriate awards
in the circumstances of this matter.
ORDER:
[92]
In the result I grant the following orders against the First and
Second Defendant jointly and
severally, the one paying the other to
be absolved:
1.
Payment of the amount of R 60 000
(Sixty Thousand Rand) in respect of the Plaintiff’s unlawful
arrest which occurred
on the 3
rd
of August 2017 and subsequent detention until the 5
th
of August 2017.
2.
Payment of the amount of R1 000 000.00
(One Million Rand) as a result of the Plaintiff’s continued
unlawful detention
on the 5
th
of August 2017 up until the 13
th
August 2019.
3.
Payment of the amount of R500 000
(Five Hundred Thousand Rand) in respect of the Plaintiff’s
claim for malicious prosecution.
4.
Cost of the suit.
DE
KOCK, AJ
Appearance
on behalf of the Plaintiff
:
Attorney
:
-
Loubser
van Wyk Incorporated.
Counsel
:
-
Advocate
Van Eeden
Appearance
on behalf of the First and Second Defendants
:
Counsel
for First and Second Defendants
:
Attorney
:
-
The
Office of the State Attorney, Bloemfontein.
Counsel
:
-
Advocate
S Motloung.