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[2022] ZAFSHC 359
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Mokoena v Minister of Police:Republic of South Africa and Another (1582/2019) [2022] ZAFSHC 359 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1582/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MPHO
DOCTOR
MOKOENA
Plaintiff
And
MINISTER
OF POLICE: REPUBLIC OF SOUTH AFRICA
First Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS:
(NDPP)
Second Defendant
JUDGMENT
BY:
C REINDERS, ADJP
HEARD
ON:
13 JUNE 2022
DELIVERED
ON:
13 DECEMBER 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 16h30 on 13 DECEMBER
2022.
[1]
On 09 April 2019 Mr Mpho Doctor Mokoena (the plaintiff) instituted
action for unlawful
arrest and detention, and malicious prosecution
against the Minister of Police (first defendant) and National
Director of Public
Prosecutions (second defendant, “NDPP”),
claiming an amount of R2 500 000.00 (jointly and severally) being
damages
in respect of
contumelia,
embarrassment, impairment of
his dignity, reputation and humiliation.
[2]
In the matter at hand the first defendant admitted to the arrest and
subsequent detention
of the plaintiff, but pleaded that it was
justified because the arresting officer had a reasonable suspicion
that plaintiffs had
made themselves guilty of an offence as referred
to in Schedule
1 Act 51
of 1977, namely rape of a minor girl child.
[3]
The plaintiff claims damages
within two categories. In the first category plaintiff alleges
in his
particulars of claim that he was wrongfully and unlawfully arrested
on a charge of rape (without any reasonable grounds)
and detained on
18 May 2017 without a warrant by the arresting officer, a member of
Tweeling South African Police Service acting
within the course and
scope of his employment as an employee of the first defendant.
Plaintiff remained so detained at the Frankfort
Correctional Services
until his acquittal on 05 September 2018.
[4]
The second category relates to a claim for damages for malicious
prosecution in that
the defendants wrongfully and maliciously set the
law in motion by detaining and charging the plaintiff on a charge of
rape, in
circumstances where there was lack of a reasonable and
probable cause.
[5]
The matter was placed before me for adjudication in respect of the
merits of the case
only at this stage, with the determination of
quantum to stand over for later adjudication in the event that the
court finds in
favour of the plaintiff.
[6]
The first defendant disputed the unlawfulness of both the arrest and
subsequent detention.
More specifically, reliance is placed on s
40(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) [which
stipulates that a
peace officer may without a warrant arrest any
person “
whom he reasonably suspects of having committed an
offence referred to in Schedule 1 …”
].
[7]
First defendant pleaded that:
“
6.1
The arresting officer was a peace officer as defined in Act 51 of
1977.
6.2 On
or about 2 May 2017 a case of rape under CAS 07/05/2017 was opened at
Tweeling Police Station.
6.3 During
preliminary investigations the members of the first defendant
discovered that the plaintiff had fled to
Soweto in Gauteng.
6.4 The
plaintiff was traced and on or about 18 May 2017 the plaintiff was
lawfully arrested and detained for the above
offence.
6.5 The
plaintiff was lawfully detained at the Mafube Police Station from
approximately 14h30pm on the 18 May 2017
until approximately 7h40am
on the 19 May 2017 when he was taken to the Frankfort Magistrate
Court.
6.6 The
plaintiff first appeared in the Frankfort Magistrate Court on the 19
May 2017.”
[8]
In its plea the second defendant denied that the prosecution of the
plaintiff was malicious
and wrongful, and pleaded as follow:
“
14.1 A criminal
case of rape (of a minor) was opened against the plaintiff.
14.2 The statement
of the complainant linked the plaintiff to the rape; the plaintiff
was the uncle of the complainant.
14.3 The decision
to prosecute the plaintiff was taken in good faith in that there
existed a reasonable possibility and belief
that the plaintiff might
be found guilty of rape.
14.4 There was
therefore reasonable and probable cause to prosecute the plaintiff
for rape.
14.5 The members of
the second defendant did not act with malice or
animus iniuriandi
or with the intention to defame the plaintiff.
14.6 The members of
the second defendant carried out their duties as imposed on them with
the necessary skill and diligence
as required.
14.7 The second
defendant admits that the plaintiff was acquitted of the charges
against him.”
[9]
The first defendant bore the onus of proving that the said arrests
were lawful. In
Duncan
v Minister of Law and Order
[1]
it was held that:
“
The so-called
jurisdictional facts which must exist before the power conferred by s
40(1)(b) of the present Act may be invoked,
are as follows:
(1)
The arrestor must be a peace officer.
(2)
He must entertain a suspicion.
(3)
It must be a suspicion that the arrestee committed an offence
referred to in Schedule 1
to the Act (other than one particular
offence).
(4)
That suspicion must rest on reasonable grounds.”
[10]
Langa CJ in
Zealand
v Minister of Justice and Constitutional Development and Another
[2]
stated as follows:
“
The constitution
enshrines the right to freedom and security of the person, including
the right not to be deprived of freedom arbitrarily
or without just
cause, as well as the founding value of freedom… the
respondents then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.”
[11]
In
Duncan
supra
reference was made to
Ingram
v Minister of Justice
[3]
where the test to be applied was stated as follows:
“
The words,
“reasonable suspicion” in s 40 may tend to indicate some
subjective test to be applied; however, that is
not so; the test as
to whether “reasonable suspicion” could have existed and
did exist, is it to be determined by an
objection standard, namely
that of the reasonable man with the knowledge and experience of a
peace officer based upon the facts
and circumstances then known to
the arresting peace officer.”
[12]
The crucial question to be asked is stated as follows in
Mabona
and Another v Minister of Law and Order and Others
[4]
:
“
Would a reasonable
man in the second defendant’s position and possessed with the
same information have considered that there
were good and sufficient
grounds for suspecting that the plaintiffs were guilty of conspiracy
to commit robbery or possession of
stolen property knowing it to be
stolen? The reasonable man will therefore analyse and assess the
quality of the information at
his disposal critically, and he will
not accept lightly or without checking it where it can be checked. It
is only after an examination
of this kind that he will allow himself
to entertain a suspicion which will justify an arrest. This is not to
say the information
at his disposal must be of sufficiently high
quality and cogency to engender in him conviction that the suspect is
in fact guilty.
The section requires suspicion but not certainty.
However, the suspicion must be based upon solid grounds.”
and
further
[5]
“
The test of
whether a suspicion is reasonably entertained within the meaning of
s
40(1)(b)
of the
Criminal Procedure Act 51 of 1977
is objective.
[13]
In
Nxomani
v Minister of Police
[6]
it was held that:
“
reasonable grounds
are interpreted objectively and must be of such a nature that a
reasonable person would have had a suspicion.
The arrester’s
grounds must be reasonable from an objective point of view. When the
peace officer has an initial suspicion,
steps have to be taken to
have it confirmed in order to make it a “reasonable”
suspicion before the peace officer arrests.”
[14]
Moreover, the quality and source of the arresting officer’s
information is to be considered
critically.
[7]
[15]
When instituting a claim against the National Director of Public
Prosecution for malicious prosecution,
a plaintiff must convince the
court on a balance of probabilities that the NDPA prosecuted a
plaintiff without reasonable and probable
cause.
[16]
In
Minister
of Constitutional Development and Others v Moleko
[8]
the requirements to succeed with such a claim, which must exist
cumulatively, was set out:
“
a.
that the defendants set the law in motion (instigated or instituted
the proceedings);
b.
that the defendant acted without reasonable and probable cause;
c.
that the defendant acted with malice (or
animo iniuriandi
); an
d.
that the prosecution has failed.”
It
was common cause between the parties that the first and fourth
requirements existed, thus the dispute centred around the second
and
third requirement.
[17]
The test to be applied by prosecutor before instigating prosecution
against an accused, namely
reasonable and probable cause, is set out
in
Patel
v National Director of Public Prosecutions and Others
:
[9]
“
A
prosecutor exercises discretion on the basis of the information
before him or her. In
S v Lubaxa
this Court said the following:
"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."”
[18]
The plaintiff personally testified and the defendant called the
arresting officer (Sergeant BE
Nakane) and the prosecutor (Me AM De
Beer). In respect of the plaintiff’s evidence it might be noted
that he denied any involvement
in the commission of the crimes
instituted in the regional court and it was common cause that he was
arrested on 08 May 2017, later
tried and acquitted. His evidence did
not suggest any altercations before the arrest with Mr Nakane nor
with Me De Beer who made
the decision to proceed with the
prosecution.
[19]
Mr Nakane confirmed that he arrested the plaintiff. Before the arrest
he did not know the plaintiff
and he arrested the plaintiff simply
because he was executing his lawful duty. He arrested the plaintiff
without a warrant but
did so in terms of
s 40(1)(b)
of the CPA which
authorises a peace officer to arrest any person when the peace
officer reasonably suspects such a person of having
committed an
offence in terms of Schedule 1. In
MR
v Minister of Safety and Security and Another
[10]
it was held that the section confers a discretion upon the arresting
officer. The court noted that it is “neither prudent
nor
practical to try to lay down a general rule and circumscribe the
circumstances under which police officers may or may not exercise
their discretion. Such an attempt might have the unintended
consequence of interfering with their discretion and, in the process,
stymie them in the exercise of their powers in pursuit of their
constitutional duty to combat crime”.
[20]
Mr Nakane, before arresting the plaintiff, had in his possession the
statement of the complainant
identifying the plaintiff as the
perpetrator. In particular, he obtained the J88 report by Dr GJ
Gronum dated 03 May 2017 and which
indicated in para [5] thereof that
the complainant was sexually assaulted and sodomised. The report
therefore corroborated the
complainant’s version that she was
sodomised. That this information was in his possession could not be
disputed or at least
seriously disputed. Sgt Nakane testified that he
considered the available evidence and realised that it was a serious
offence.
An additional factor in the sergeant’s mind was that
the plaintiff knew from 02 May 2017 that the police was looking for
him but not only failed to present himself, but left his abode. He
traced the plaintiff and in those circumstances decided to arrest
the
plaintiff. In as far as the arrest therefore is concerned the
sergeant was satisfied that he was entitled to arrest the plaintiff
in view of the authority granted to the sergeant in terms of
s
40(1)(b).
Having listened to these evidence and in the absence of any
other evidence I cannot find that the arrest was either unlawful or
malicious.
[21]
Very much the same may be said about the evidence of Me de Beer.
There was no suggestion that
she had any personal vendetta with the
plaintiff. Her testimony was that she carefully considered the
versions of the witness’
statements and her decision to
prosecute was solely based on the evidence available in the police
docket. She applied her mind
and came to the conclusion that the
prosecution should proceed. In
casu
the onus rested on the
plaintiff to convince me on a balance of probabilities that the
second defendant had no reasonable or probable
cause for the
prosecution or at least no such cause to continue with the
prosecution and/or that the second defendant did not have
any
reasonable belief in the truth of the information at her disposal.
The evidence tendered by second defendant rather convinces
me
otherwise.
[22]
It therefore follows that the plaintiff’s claim against neither
of the defendants can be
sustained in my view.
[23]
Wherefore I make the following order:
1.
The plaintiff’s claims against the defendants are dismissed
with costs.
C
REINDERS, AJDP
On
behalf of the plaintiff:
Adv ID Masako
Instructed by:
Matlho Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
and 2
nd
defendants:
Adv ND Khokho
Instructed by:
State Attorneys
BLOEMFONTEIN
[1]
1986 (2) SA 805
(A)
[2]
2008 (4) SA 458 (CC)
[3]
1962 (3) SA 225
(W) at 229 G-230A
[4]
1988 (2) SA 654
(SE) at 658 E-G
[5]
Ibid
656 B-D
[6]
(123/2017) [2020] ZAECBHC 27 (13 October 2020) at [109]
[7]
De
Klerk v Minister of Police
at paragraph 11;
Mvu
v Minister of Safety and Security
2009 (6) SA 82
(GSJ) at 90A
[8]
2009 (2) SACR 585
(SCA) at para [8]
[9]
2018 (2) SACR 420
(KZD) at para [23]
[10]
(CCT151/15)
[2016] ZACC 24
;
2016 (2) SACR 540
(CC) at para
[42]