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[2022] ZAMPMBHC 36
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Mdhlovu v National Director of Public Prosecutions (677/2018) [2022] ZAMPMBHC 36; [2023] 1 All SA 458 (MM) (24 May 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT, MBOMBELA)
CASE
NUMBER:
677/2018
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED:
YES
24/05/2022
In
the matter between: -
SIJOYI
ROBERT MDHLOVU
Plaintiff
and
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Defendant
J
U D G M E N T
DATES
OF HEARING: 22 FEBRUARY 2022; 23
FEBRUARY 2022; 2 MARCH 2022
DATE
OF JUDGMENT: 24 MAY 2022
SIEBERHAGEN
AJ:
[1]
The plaintiff, Mr Sijoyi Robert
Mdhlovu, a regional court prosecutor for the Nelspruit (Mbombela),
Mpumalanga region, instituted
an action for damages in this court
against the National Director of Public Prosecutions (“
NDPP
”)
based on his alleged malicious prosecution by the defendant acting,
as a common cause fact, through its employees who acted
within the
course and scope of their employment with the defendant.
[2]
By agreement between the parties, pursuant
to an application in terms of Uniform Rule of Court 33(4) at the
commencement of the
trial, the trial before me was confined to the
merits of the claim, with the question of quantum standing over for
later determination.
THE PLEADINGS
[3]
The
plaintiff’s particulars of claim reveal inattentiveness, but it
can be gleaned therefrom, as amplified by the submissions
by
Mr Meintjies on behalf of the plaintiff when I at the
commencement of the trial during the parties’ application for
a
separation of issues (in terms of Uniform Rule of Court 33(4))
sought clarity thereon, that the plaintiff’s claim
is based on
the
actio
iniuriarum.
[1]
In the particulars of plaintiff’s claim the plaintiff claims
R1 800 000.00 as follows:
[2]
-
“
9.
As a result of the
malicious prosecution, plaintiff suffered damages as follows:
9.1
R250 000.00 - being costs for future loss of income.
9.2
R550 000.00 - loss of promotion and/or advancement prospect.
9.3
R1 000 000.00
for contemelia,
[3]
good name, reputation, publication in the media and emotional trauma,
suffered as a result of the unlawful prosecution.
10.
Defendant
was unduly influenced to institute prosecution against the plaintiff,
in so doing acting with an animus injuriandi and
did not act upon a
proper consideration of all the evidence to sustain the charges
proffered against the plaintiff.”
(
sic
)
The
actio
iniuriarum
is a remedy for the compensation of damages caused to the person of a
plaintiff and the concomitant impairment of his/her
dignitas
.
It does not extend to compensation for future loss of income (the
basis whereof is to be found in the
actio
legis aquiliae
)
[4]
or “publication in the media” (which will properly resort
under an action for defamation, under the
actio
iniuriarum
,
but there is only one action in the hands of the plaintiff that the
injury committed can give rise to
[5]
),
as claimed by the plaintiff, but it need not be considered for
reasons that will become apparent.
[4]
The
plea, equally perfunctory, displays a misconception of the law
[6]
in that the defendant
inter
alia
pleaded:
[7]
-
“
5.3.2
The defendant avers that he lawfully
set the law in motion against the plaintiff and there
was sufficient
prima facie evidence of the commission of offences by the plaintiff
in the docket and the prosecutor acted reasonably
with probable cause
in proffering criminal charges against the plaintiffs in the
circumstances.
5.3.3
The defendant had an honest
belief upon deciding to prosecute that the plaintiff was
guilty of
the offences that he had been charged with.”
[8]
(sic)
THE ISSUES
[5]
In
order to succeed, on the merits, with a claim for malicious
prosecution, a plaintiff must prove:
[9]
-
[i] that the defendant
set the law in motion, i.e. instigated or instituted the
proceedings;
[ii]
that the defendant acted without reasonable and probable
cause;
[iii]
that the defendant acted with “
malice
” or
animus
iniuriandi
; and
[iv]
that the prosecution has failed.
[6]
The facts in this matter are common cause
and, on the pleadings and the evidence, what were in issue before me
are whether: -
[i] the defendant acted
with reasonable and probable cause; and
[ii]
the defendant acted with “
malice
” (or
animo
iniuriandi
).
In
this case, it was not in dispute that: -
[a] the defendant
set the law in motion (instigated the prosecution of the plaintiff);
and
[b]
the defendant instigated the prosecution against the plaintiff on the
alleged basis that “… there was
sufficient
prima
facie
evidence of the commission of offences by the plaintiff in the docket
and the Prosecutor acted reasonably with probable cause in
proffering
criminal charges against the plaintiffs in the circumstances”;
[10]
[c]
the prosecution has failed (the plaintiff was discharged on all the
charges against him, on 30 August 2017,
in terms of
section 174 of the Criminal Procedure Act
[11]
at his criminal trial which commenced on 29 August 2017 in
the Nelspruit Regional Court).
[12]
THE FACTS
[7]
The
plaintiff, Mr Mdhlovu, who bore the onus, testified as a sole
witness, and on behalf of the defendant testified Sergeant
B Nkambule
[13]
and the
Deputy Director of Public Prosecution, Mpumalanga (“
DDPP
”),
[14]
Adv Moonsamy. There is no need to, and I do not, make any
credibility findings in respect of these witnesses.
[8]
Moreover, the proven facts are either
common cause, or not in dispute. Except for the facts that I find
relevant from this evidence,
and where necessary to evaluate the
evidence, I will not deal with the evidence of each witness in
detail.
[9]
I
will, for the sake of continuity and chronological order,
[15]
deal with the facts in accordance with its different stages. The
first dealing with the facts pertaining to the events that gave
rise
to the charging of the plaintiff, the second relating to the steps
taken in the investigation of the charge laid by the defendant
against the plaintiff, the third the decision to proceed with
prosecution against the plaintiff and, the fourth, the failure of
the
prosecution.
FACTS AND
CIRCUMSTANCES THAT LED TO THE CHARGE
[10]
The plaintiff, a regional court prosecutor
with almost 26 years’ experience, on or about 12 June 2015
dealt with,
inter alia
,
two police case dockets investigated by the investigating officer,
Sergeant Nkambule, of the specialised Trio Unit, Nelspruit,
relating
to serious crimes involving
inter alia
armed robbery, a firearm and attempted murder (in four, respective,
“linked-cases”).
[11]
The plaintiff testified that: -
[11.1]
He was a regional court prosecutor in
Nelspruit with almost 26 years’ experience, when he received
two case dockets from the
South African Police Services (SAPS);
[11.2]
In the course of his duties as a prosecutor
he, during the morning of 12 June 2015, still in his
office, pointed out to
the investigating officer, Sergeant Nkambule,
that the matter, under CAS246/05/15, was not trial ready for reason
that the “chain
evidence had been broken” in relation to
the identification of the firearm that linked the four, respective,
cases, and after
Sergeant Nkambule has left his office, he later
during the day in court withdrew the charges in the matter;
[11.3]
He was, at the time, of the view that the
matter was not trial ready due to insurmountable contradictions in
the facts caused by
the lack of proper identification of the firearm
by the forensic investigation department in Pretoria of the SAPS;
[11.4]
It became apparent to him that Sergeant
Nkambule was not satisfied with his action and laid a complaint
against him for alleged
breach of the “agreement” that
they reached earlier that morning;
[11.5]
He was, as a prosecutor, mandated, to take
decisions in his discretion for the management of the cases that he
put before court;
[11.6]
Though there was no duty upon him to
consult anyone before withdrawing a matter, he did discuss these
matters with the control prosecutor,
Mr David Mashego,
before withdrawing the matter;
[11.7]
He
was not aware of any unwritten rule of practice in Mpumalanga that in
matters of a serious nature the prosecutor must first discuss
the
matter with the senior prosecutor before withdrawing it, as suggested
by Adv Moonsamy and exhibit “B” (a letter
wherein
the senior prosecutor, Nelspruit, Ms K M Mashapa,
confirmed that she did not grant the plaintiff permission
to withdraw
the matter in certain case numbers Nelspruit CAS29/07/2015 &
Nelspruit CAS30/07/2015);
[16]
[11.8]
Later on, an attorney and manager directed
to him by the Deputy Director of Public Prosecutions’ (“
DDPP
”)
office, approached him to make a representation before he would be
charged criminally. He elected not to make any representations
as in
his view he had done nothing wrong;
[11.9]
More than a year later, he was arrested at
his office on 26 October 2016, taken to the Nelspruit
police station where
he was charged, brought before court where he
was granted bail, and all of that occurred in the presence of his
colleagues and
other personnel working in the same office. He felt
humiliated by this arrest and being brought to court whilst in
custody;
[11.10]On
29 August 2007 he appeared for his trial wherein he was on the
30
th
of
August 2017 found not guilty and discharged in terms of
section 174 of the Criminal Procedure Act;
[17]
[11.11]In
his view his prosecution was malicious, which caused him discomfort
and humiliation at his work for having to “… look
behind his back …”. He, further, experienced
tension and a palpable atmosphere at work causing him to eventually
request to be transferred to Nkomazi Court for colleagues were
viewing him differently at Nelspruit where he was prosecuted in
the
same court wherein he acted as prosecutor;
[11.12]When
he withdrew the charges, he did so in terms of the prosecutor’s
policy manual
[18]
and took
decisions, as he was required to do, within his discretion. He had no
agreement or arrangement with the investigating
officer in the
matter, could not be influenced by the views of the investigating
officer before independently taking decisions
on the merits appearing
from case dockets and, in any event, the decisions that he took did
not affect the final outcome of the
matter;
[11.13]There
was no criminal conduct on his part and he was not afforded a
disciplinary hearing;
[11.14]He
was not aware of the decision, or the reasons therefor, by
Adv Moonsamy, resulting in his arrest and prosecution.
[12]
Sergeant Nkambule was, understandably,
upset for he, who struck me as an astute policeman who approached the
serious matters that
he investigated with genuine devotion, reported
what he regarded as a “breach of agreement” by the
plaintiff, the plaintiff
having earlier on the 12
th
of June 2015, according to him, undertaken to postpone the case
(under CAS246/05/15) for further investigation. He, consequently,
reported the “breach” to his superior officer with a view
of action to be taken against the plaintiff. However, Sergeant
Nkambule’s disappointment does not render the actions by the
plaintiff wrongful or unlawful.
[13]
The
plaintiff testified that he acted within his discretion as a
prosecutor, in accordance with the “National Prosecuting
Authority of South Africa - Policy Manual”.
[19]
The plaintiff testified that he exercised his discretion in
accordance with the policy carefully, and because of the “break
in the chain evidence” and the, ultimate, failure of the
correct firearm having been properly linked pursuant to forensic
investigation by the Forensic Department of SAPS, Pretoria, and that
because of this lack of evidence, and contradictory facts,
it would
have been non-sensical to prosecute the case any further at that
stage. He, further, testified that given the same facts,
in the same
circumstances, he would have exercised his discretion exactly the
same (in his words, even an inexperienced prosecutor
would not have
prosecuted the matter), and that for these reasons he, at the time of
being charged, elected not to accept the invitation
to make
representations before being criminally charged.
[14]
It
might be apposite, for the benefit of Sergeant Nkambule, and other
interested parties, such as the victims in those serious cases
where
the charges had been withdrawn in the instance, to be reminded of the
following
dicta
by Slomowitz AJ in
S
v Khubeka:
[20]
-
“
The
rule that the State is required to prove guilt beyond a reasonable
doubt had on occasion been criticised as being anomalous.
On the
other hand, the vast majority of lawyers (myself included) subscribe
to the view that in the search for the truth it is
better that guilty
men should go free than that an innocent man should be punished. More
especially is this so in capital cases.
It should be borne in mind,
however, that a court seeks to do justice not merely to the accused
but to society as a whole. If then
the police do not fully and
properly investigate crimes, especially of the type with which I am
here concerned, as a result of
which insufficient evidence is made
available to the prosecution and in consequence put before the court,
guilty men will go free,
not because of the existence of the rule to
which I have referred, but simply because cases have been
inadequately investigated.
The consequence will be that the
administration of justice will fall into disrepute.”
Moreover,
the fact that the plaintiff (prosecutor) withdrew the charges at the
time, did not mean that the case could not come before
court again;
indeed, thereby the risk “… and in consequence put
before the court, guilty men will go free, …”
was
averted and upon proper further investigation he or the next
prosecutor would have been put in a better position to successfully
prosecute the case. As it turned out, it seems that these cases, for
unclear and unexplained reasons, did not come before the appropriate
court again.
INVESTIGATION OF THE
COMPLAINT AGAINST PLAINTIFF
[15]
Adv Moonsamy is known to this court as an
officer of the court with the highest repute. However, it would
appear that in the circumstances
of this matter she got carried away
by her sense of duty as influenced by a general adoption of the
presupposition that corruption
and fraud should be “stamped
out” in the Mpumalanga Province. Which approach in itself, of
course, cannot be criticised,
but should as this case demonstrates
always be approached and implemented with circumspection.
[16]
The detailed facts, which I regard
relevant, appearing from the evidence of Adv Moonsamy, are: -
[16.1]
Adv Moonsamy was appointed as the Deputy
Director of Public Prosecutions, Mpumalanga (“
DDPP
”)
during October 2015 and less than a month thereafter received
the complaints and case dockets, concerning the conduct
of the
plaintiff in the regional court on 12 June 2015, when he
withdrew the charge in one matter and did not oppose
bail in the
other in the alleged “
breach of
the agreement”
earlier that day
with Sergeant Nkambule, from Captain Nkwanyana on 6 November 2015.
It is necessary to interpose in order
to observe that these case
dockets, and their contents, despite the obvious pivotal importance
thereof, have not been produced
nor adduced into evidence by the
defendant.
[16.2]
Adv Moonsamy was at pains to state that she
carefully considered the matter, because the plaintiff was “… one
of their own …”, meaning that he, at the time,
functioned under her auspices in the lower courts, and, further,
that
she, as a measure of extra caution, has had the case documents
concerning the complaints against the plaintiff considered
by five
further professional personnel (including, advocates, the senior
State prosecutor and members from her office).
[16.3]
She, after receipt of the complaints and
case dockets, requested the input from
inter
alia
the senior prosecutor,
Mr Van Heerden, and the senior public prosecutor for the
Nelspruit Magistrates’ Court, Ms Mashapa,
but having not
received proper input from them, she considered the contents of the
case dockets, made recommendations thereon to
the DPP, and after
having received the comments of the DPP on 28 December 2015,
she elected to have the plaintiff prosecuted
on charges of fraud and
defeating or obstructing the administration of justice.
[16.4]
The “motivation” for her
recommendation to the DPP is contained in an internal memorandum by
her to the Director of
Public Prosecutions, North Gauteng Division,
dated 15 December 2015, which reads as follows: -
“
MOTIVATION
I have gone through
the case dockets as well as annexures A1 and A2, which are
self-explanatory, and I am of the view that the Prosecutor
must be
prosecuted on
TWO (2) COUNTS OF DEFEATING THE ENDS OF JUSTICE
.
We have heard at the
recent PEEC meeting with the judge-president, the Honourable Justice
Mlambo, that there are huge concerns relating
to corruption on the
part of Prosecutors in the Mpumalanga province.
It is incumbent that
we send out a message that the NPA has a zero tolerance approach to
corruption. And although one is unable
to prove corruption herein,
the dockets as well as annexure “E” contain evidence that
has the hallmark of corrupt tendencies.”
In my
view, this “motivation” by Adv Moonsamy on the 15
th
of December 2015 underscores the subjective element
[21]
of her decision to prosecute.
[22]
[16.5]
She had this view notwithstanding the fact
that in the same memorandum she expressed the view that “The
Prosecutor must be
prosecuted on
two (2)
counts of defeating the ends of justice
”,
and, further, indicated to the Director of Public Prosecutions, North
Gauteng Division, that it would not be possible to
prove corruption
on the evidence contained in the dockets that she forwarded to him.
[16.6]
In reply to Adv Moonsamy’s
memorandum, the Director of Public Prosecutions, Gauteng Division,
Pretoria (the “
DPP
”),
on the 28
th
of
December 2015 addressed a letter to her, wherein he remarked as
follows: -
“
1.1
I am in
agreement that there appears to be a prima facie case against
Robert
Ndhlovu on 2 counts of fraud, alternatively defeating or obstructing
the administration of justice.
1.2
The following further investigation must be completed before
a final
decision regarding prosecution is made:
1.2.1 The warning
statements of Robert Ndhlovu pertaining to both dockets opened
against him must be obtained;
1.2.2 The statement of
the senior prosecutor must be filed in the case dockets; and
1.2.3 Affidavits must
be obtained from the respective magistrates who completed the
relevant J15 charge sheets, confirming that
Robert Ndhlovu was the
prosecutor who withdrew the matters and the contents noted on the
respective J15 charge sheets.
1.3
You are hereby authorised to dispose of the matter as you deem fit,
but the case dockets may be submitted to this office again for
further guidance if so required.”
DECISION TO PROCEED
WITH THE PROSECUTION
[17]
On the evidence of Adv Moonsamy
relating to her decision to prosecute, the following facts were
established: -
[17.1]
She, on receipt of the letter, dated 28
December 2015, by and on behalf of the DPP, Gauteng Division,
Pretoria, and despite being
in disagreement with the DPP’s view
that the case dockets (CAS29/7/2015 and 30/7/2015) provided
sufficient grounds for instituting
charges on two counts of fraud,
elected to issue an instruction for the prosecution of the plaintiff
on charges of fraud and, in
the alternative, the crime of defeating
or obstructing the administration of justice.
Although she in answer to
able, courteous, cross-examination by Mr Meintjies on behalf of
the plaintiff, at first, attempted
to indicate that it had been on
the instruction of the DPP that she issued the instruction for
prosecution on the charges of fraud,
she eventually conceded that she
exercised her discretion to instruct prosecution of the plaintiff on
charges of fraud and, in
the alternative, charges of obstructing and
defeating the administration of justice.
[17.2]
In
answer to a pertinent question, Adv Moonsamy stated that it was
not necessary for her to have had sufficient evidence before
her to
show that the prosecution of the plaintiff had a reasonable and
probable cause, and that it had only been necessary for
her to have
had established that there had been a
prima
facie
case
against the plaintiff. This amounts to a material misconception of
the law.
[23]
[17.3]
She, when considering the plaintiff’s
actions, did not regard the compromised chain of evidence and lack of
identification
of the firearm which had been retrieved (a Star
pistol) in contradiction to the firearm entered into the SAP13
register (a Star,
Taurus) aggravated by a further contradiction in
respect of the firearm forensically analysed (a Norinco) which had
been the crucial
exhibit linking the four dockets, as a factor which
had been duly considered by the plaintiff when taking his decision to
withdraw
the charges. The distinct impression gained from her
evidence in relation thereto, is that she realised these
discrepancies for
the first time when she was confronted with it
during cross-examination.
[17.4]
Nothing (in the form of the contents of the
case dockets concerning the plaintiff, considered by Adv Moonsamy),
was put before
me, on behalf of the defendant, establishing
reasonable and probable cause to prosecute the plaintiff. Indeed,
Adv Moonsamy
testified that in her view it was not necessary for
her to have had reasonable and probable cause to institute the
prosecution
and all that she had to establish was whether a
prima
facie
case could be established from
the information and evidence considered by her. Even if she was
correct, which she was not, neither
she nor the defendant adduced any
evidence whereon she made her decision. The high water mark of
her evidence was that she
resolved that, on the contents of the case
dockets put before her, a
prima facie
case against the plaintiff existed.
It
requires to be pointed out that, during this portion of
Adv Moonsamy’s testimony, she attempted to refer to
documents
contained in a file that she brought with her to the
witness stand (without it being disclosed to me or Mr Meintjies
on behalf
of the plaintiff), and upon my raising the inadmissibility
thereof with Adv Ngumane, on behalf of the defendant, and his
mere
stating “… I am in the hands of the court
M’Lord …”,
[24]
I requested him and Mr Meintjies to see me in chambers, where I
invited him to do whatever advised, and procedurally and regularly
required, to have, whatever documents Adv Moonsamy was referring
to, admitted properly. However, except for adhering to my
direction
that I would not allow her to refer to any documents not properly
discovered or to refresh her memory without a proper
foundation
having been laid therefor, he didn’t attempt to adduce the
documents or any other evidence in that regard.
Moreover, I don’t
need to consider whether Adv Moonsamy had sufficient evidence
before her that enabled her to have had
established that she had
reasonable and probable cause to initiate the prosecution, because
she says that she did not establish
it to the extent. On the facts,
therefore, she did not consider the existence or not of reasonable
and probable cause.
PROSECUTION FAILED
[18]
It
is common cause that the prosecution failed, and the learned
magistrate discharged and acquitted the plaintiff in terms of
section 174
of the Criminal Procedure Act.
[25]
I am not influenced, or bound by the reasons for his discharge of the
plaintiff in the criminal matter, and, in any event, do not
find it
necessary to refer thereto. Of importance, in that procedure, is that
the record thereof reflects that the prosecutor acting
on behalf of
the State, Adv Pudikwabekwa, conceded that the plaintiff should
have been called before a disciplinary hearing
as opposed to
criminally charged.
THE LAW
Actio iniuriarum
[19]
“
Generaliter
iniuria dicitur omne quod non iure fit”
(in
general one understands under the
iniuria
anything committed unlawfully).
[26]
Though not as wide an action anymore as enacted by Caesar Iustinianus
I (527-565), the
actio
iniuriarum
(as developed in Roman law, Roman-Dutch law and recepitated in South
African law) is still the action protecting the rights entrenched
in
the Bill of Rights as contained in sections 10 (human dignity),
12 (freedom and security) and 14 (privacy) of the Constitution.
A
claim based on the violation of any of these rights must not be
founded on the constitutional right, for in our constitutional
order
no sharp line can be drawn between the actions for claims for
injuries to reputation (
fama
and
dignitas
concerning the individual’s own sense of self-worth, and
including a variety of personal rights, for example, privacy),
[27]
and the cause of action should be pleaded on the elements sustained
by the
actio
iniuriarum
.
[20]
The
actio
iniuriarum
is a cause of action whereby a plaintiff can claim for injuries to
her person, dignity or reputation, where the injury is committed
wrongfully and with the
animus
iniuriandi
[28]
(intentionally).
[29]
[21]
It
is not sufficient for a defendant to merely deny
animus
iniuriandi
;
she must allege and prove the factual basis for the absence of
animus
iniuriandi
.
[30]
Malicious prosecution
[22]
Malicious
prosecution is an abuse of the process of court by intentionally and
wrongfully setting the law in motion on a criminal
charge.
[31]
In order to succeed in an action for malicious prosecution, a
plaintiff must prove: -
[22.1]
that
the defendant instituted or instigated the proceedings;
[32]
[22.2]
that
the defendant acted intentionally or with
animus
iniuriandi
;
[33]
[22.3]
that
the defendant acted without reasonable and probable cause;
[34]
[22.4]
that
the defendant was actuated by an improper motive or malice;
[35]
[22.5]
that
the prosecution has failed or has been terminated in the plaintiff’s
favour;
[36]
and
[22.6]
the
plaintiff suffered damages.
[37]
[23]
The
locus
classicus
on the requirements for the delict of malicious prosecution, is the
judgment by the Supreme Court of Appeal in
Minister
for Justice and Constitutional Development v Moleko
,
[38]
and a clear statement of the law, with due deference to Ledwaba DJP,
in regard to the test to be applied by the prosecutor,
i.e. “reasonable and probable cause”, before
instigating prosecution against an accused, is set out in
Patel
v National Director of Public Prosecutions and Others
.
[39]
The statement of the law, and principles laid down, in these two
judgments, are not only of significant guidance, but make it clear
that the applicable legal principles can now be regarded as settled
law.
[24]
On
what were in issue before me,
[40]
I shall refer to these judgments where they deal with “reasonable
and probable cause” and “malice” (or
animo
iniuriandi
),
only.
[25]
In
respect of the requirement of malice, Ledwaba DJP stated
thus:
[41]
-
“
[21]
To determine whether there was malice or not, it will be worth
recalling what
the Supreme Court of Appeal said when it dealt with
the duty of the prosecutor in Minister of Police and Another v Du
Plessis:
10
‘
A
prosecutor has a duty not to act arbitrarily. A prosecutor must act
with objectivity and must protect the public interest. In
S v Jija
and Others
1991 (2) SA 52
(E) at 67I-68B the following appears:
‘
I
must also mention that the court had an uneasy feeling that state
counsel had misconceived his function. It appeared to the court
from
the nature of his address and attitude that he regarded his role as
that of an advocate representing a client. A prosecutor,
however,
stands in special relation to the court. His paramount duty is not to
procure a conviction but to assist the court in
ascertaining the
truth (R v Riekert
1954 (4) SA 254
(SWA) at 261D-G; R v Berens
[1865] EngR 42
;
[1985] 176 ER 815
at 822). See also R v White
1962 (4) SA 153
(FC); R
v Tapera
1964 (3) SA 771
(SRA); S v Van Rensburg
1963 (2) SA 343
(N);
R v M
1959 (1) SA 434
(A) at 439F.’
[22]
In Democratic Alliance v President of the Republic of South Africa
and Others
11
this court, after a discussion concerning
prosecutorial independence in democratic societies, quoted, with
approval, the following
part of a paper presented at an international
seminar by Mr James Hamilton, then substitute member of Venice
Commission and Director
of Public Prosecution in Ireland:
‘
Despite
the variety of arrangements in prosecutor’s office, the public
prosecutor plays a vital role in ensuring due process
and the rule of
law as well as respect for the rights of all parties involved in the
criminal justice system. The prosecutor’s
duties are owed
primarily to the public as a whole but also to those individuals
caught up in the system, whether as suspects of
accused persons,
witnesses or victims of crime. Public confidence in the prosecutor
ultimately depends on confidence that the rule
of law is obeyed.’
We should all be
concerned about the maintenance and promotion of the rule of law.
Given increasing litigating involving the NDPP,
these principles
cannot be repeated often enough. We ignore them at our peril.
[23]
A prosecutor exercises discretion on the basis of the information
before him
or her. In S v Lubaxa
12
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 (Beckenstrater
v Rottcher and
Theunissen
1955 (1) SA 129
(A) at 135C-E), 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.’
[24]
Courts are not overly eager to limit or interfere with the legitimate
exercise
of the prosecutorial authority. However, a prosecuting
authority’s discretion to prosecute is not immune from the
scrutiny
of a court which can intervene where such discretion is
improperly exercised. See generally National Director of Public
Prosecutions
v Zuma.
13
The following was held
in Du Plessis:
14
‘
Indeed
a court should be obliged to and therefore ought to intervene if
there is no reasonable and probable cause to believe that
the accused
is guilty of an offence before a prosecution is initiated.’
[25]
The second defendant should have been satisfied that there was
reasonable
and probable cause, not just a prima facie case against
the plaintiff. The prosecutor should interrogate the docket in its
entirety
and apply his/her mind properly before taking a decision.
Again, if I accept the version of Ms Nxele, it implies that
Adv Noko
was not a credible witness and she fabricated the
evidence. The defence failed to call the officer who commissioned
Ms Nxele’s
statement, so that he could testify if the
complainant understood the content her statement, and confirm the
truthfulness thereof.”
[26]
In
Relyant
Trading (Pty) Ltd v Shongwe and Another
[42]
the Supreme Court of Appeal stated the following in regard to the
requirement of “malice” of
animus
iniuriandi
: -
“
Although
the expression ‘malice’ is used, it means, in the context
of the actio iniuriarum, animus iniuriandi. In Moaki
v Reckitt &
Colman (Africa) Ltd & another, Wessels JA said:
‘
Where
relief is claimed by this actio the plaintiff must allege and prove
that the defendant intended to injure (either dolus directus
or
indirectus). Save to the extent that it might afford evidence of the
defendant’s true intention or might possibly be taken
into
account in fixing the quantum of damages, the motive of the defendant
is not of any legal relevance’.”
With
reference to this passage in the
Relyant
Trading
case,
Van Heerden JA, in
Minister
for Justice and Constitutional Development v Moleko,
[43]
stated the following: -
“
[62]
In doing so,
the court decided the issue which it had left open in Lederman
v
Maheral Investments (Pty) Ltd
29
and again in Prinsloo and Another v Newman,
30
namely that animus iniuriandi, and not malice, must be proved before
the defendant can be held liable for malicious prosecution
as
injuria.
31
[63]
Animus injuriandi includes not only the intention to injure,
but also
consciousness of wrongfulness:
‘
In
this regard animus injuriandi (intention) means that the defendant
directed his will to prosecuting the plaintiff (and thus infringing
his personality), in the awareness that reasonable grounds for the
prosecution were possibly absent, in other words, that his conduct
was (possibly) wrongful (consciousness of wrongfulness). It follows
from this that the defendant will go free where reasonable
grounds
for the prosecution were lacking, but the defendant honestly believed
that the plaintiff was guilty. In such a case the
second element of
dolus, namely consciousness of wrongfulness, and therefore, animus
injuriandi, will be lacking. His mistake therefore
excludes the
existence of animus injuriandi.’
32
[64]
The defendant must thus not only have been aware of what
he or she
was doing in instituting or initiating the prosecution, but must at
least have foreseen the possibility that he or she
was acting
wrongfully, but nevertheless continued to act, reckless as to the
consequences of his or her conduct (dolus eventualis).
33
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.
34
[65]
In this case, I am of the view that Mr Moleko did prove animus
injuriandi on the part of the DPP. Ms Neveling clearly intended to
prosecute Mr Moleko and was fully aware of the fact that,
by so
doing, he would in all probability be ‘injured’ and his
dignity (‘comprehending also his … good
name and
privacy’)
35
in all probability negatively affected.
Despite this knowledge, she took the decision to prosecute without
making any of the enquiries
which cried out to be made, thus acting
in a manner that showed her recklessness as to the possible
consequences of her conduct.”
CONCLUSION
[27]
There can be no doubt that both the
requisite objective and subjective elements in respect of
Adv Moonsamy’s
animus
iniuriandi
were present in this matter.
Particularly so, when regard is being had to her memorandum to the
DPP wherein she expressly recorded
that a charge of corruption would
not have been sustainable against the plaintiff. Further, on the
defendant’s version (and
“a lack of evidence” that
might have supported a more benevolent inference), the defendant did
not have reasonable
and probable cause.
[28]
I find that the plaintiff proved on a
balance of probabilities that Adv Moonsamy acted with
animus
iniuriandi
, and that the defendant
failed to prove the defence raised in the pleadings.
[29]
I, accordingly, find for the plaintiff that
the defendant is liable to the plaintiff, under the
actio
iniuriarum
, for the damages caused to
the plaintiff’s personality and
dignitas
through his malicious prosecution by the defendant.
[30]
There
is no reason why the ordinary rule, that costs should follow the
result, should not be applied.
[44]
ORDER
[31]
The following order is made: -
1.
The defendant is to pay the plaintiff any such amount, as the
plaintiff
might be able to prove, as compensation for damages to his
person and
dignitas
caused through his malicious prosecution
by the defendant.
2.
The defendant shall pay the plaintiff’s costs.
P
SIEBERHAGEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION (MAIN SEAT, MBOMBELA)
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 2022 at 10:00.
APPEARANCES:
For
the plaintiff: Mr
Meintjes
Instructed
by:
Meintjies & Khoza Attorneys, Nelspruit
For
the defendant:
Adv Ngumane
Instructed
by:
The State Attorney, Pretoria
c/o
Marivate Attorneys, Mbombela
[1]
A cause of action of
considerable antiquity - vide
Institutiones
Iustinianus
,
697 (
Codex
Iustinianus, Liber IV Tituli III - IV
),
as recepitated in South African law. Mr Meintjies, in the written
heads of argument submitted on behalf of the plaintiff, confined
the
plaintiff’s claim to the
actio
iniuriarum
.
No attempt was made to prove any other kind of loss.
[2]
Particulars
of claim, §
9
and 10.
[3]
Incorrectly spelt in the
particulars of claim as “
contemelia”
.
[4]
Moaki
v Reckitt & Colman (Africa) Ltd & Another
1968 (1) SA 702
(W.L.D.) at 704E [confirmed on appeal
1968 (3) SA 98
(A)];
Jansen
van Vuuren & Another N.N.O. v Kruger
[1993] ZASCA 145
;
1993 (4) SA 842
(A) at 849A-D.
[5]
Le
Roux & Others v Dey
2010 (4) SA 210
(SCA) at [21] - [23]; confirmed on appeal
2011 (2)
SA 274
(CC).
[6]
By pleading a conclusion
that the existence of a
prima
facie
case warranted a prosecution, whilst the law requires more - see
Patel v
National Director of Public Prosecutions and Others
(
infra
)
at [23] [25]. Even, if I should conclude that the
plea sustains a valid defence, which I do not, I cannot ignore
the
fact that the evidence on behalf of the defendant does not support
the assertions pleaded, and, moreover, contradicts it.
[7]
Incorrectly numbered under
paragraph 7, as paragraph 5.3.2, in the defendant’s amended
plea, dated 23 August 2018 - evidently because of a mere
carrying over thereof from paragraph 5 of the defendant’s
notice of intention to amend, dated 23 August 2018.
[8]
The evidence of Adv
Moonsamy on behalf of the defendant, that I deal with later in
this
judgment, contradicts these assertions in the plea and she was
insistent that she took the decision to prosecute (and not
“the
Prosecutor” or the DPP) based on her view that there existed a
prima
facie
case for the prosecution of the plaintiff. This she testified in
answer to a pertinent question enquiring from her whether she
should
not have had a reasonable and probable cause for instigating the
prosecution.
[9]
Amerasinghe
Defamation and other aspects of the actio iniuriarum in Roman-Dutch
law
(in Ceylon & South Africa) [1968], referred to as
Amerasinghe
Defamation
,
at 239;
Lederman
v Moharal Investments (Pty) Ltd
1969 (1) SA 190
(A) at 196G-197F;
Thompson
and Another v Minister of Police
1971 (1) SA 371
(E) at 373F-374F;
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2007] 1 All SA 375
(SCA) at [5];
Minister
for Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA) at [8] [also reported at
2009 (2) SACR 585
(SCA)];
Patel
v National Director of Public Prosecutions & Others
2018 (2) SACR 420
(KZD) at [5];
Khumalo
v Minister of Police and Another
2021 (1) SACR 551
(WCC) at [34];
Malebe-Thema
and Another v Minister of Safety and Security and Others
2021 (2) SACR 233
(EP) at [10].
[10]
The defendant’s amended plea,
dated 23 August 2018, § 5.3.2.
[11]
Act 51 of 1977.
[12]
Judgment, by regional court
magistrate, Mr Jonker, case number RC61/2017, in the
Magistrates’
Court for the Regional Division of Mpumalanga
held at Mbombela.
[13]
The investigating officer in
Nelspruit CAS246/05/15 in respect of which case the plaintiff, on
or
about the 12
th
of June 2015, withdrew the charges against the accused therein,
contrary to an alleged agreement between him and Sergeant
Nkambule,
which “breach of agreement” appears to have been the
spark that set fire to the events causing him to have
laid a
complaint against the plaintiff.
[14]
At the time that she took the
decision to instigate proceedings which gave rise to this suit.
[15]
Patel
v National Director of Public Prosecutions & others (supra)
at [3].
[16]
Her letter, significantly, does not
address the Nelspruit CAS246/05/15 matter, forming the subject
matter of the present suit; moreover, the reference to her letter
constituted hearsay and the contents thereof have not been
sought to
be proven by the defendant.
[17]
No 51 of 1977.
[18]
National Prosecuting Authority of
South Africa Policy Manual, clauses 3 - 4, affording a prosecutor
a
wide discretion, without which, in my view, prosecutors in our lower
courts would not be able to perform their duties to ensure
a proper
functioning of those courts that are, already, functioning under
severe constraints.
[19]
The determination and observance
whereof is mandatory in terms of section 179(5)(a) - (d) of the
Constitution, and appears to have been observed in the instance.
[20]
1982 (1) SA 534
(WLD) at 538G - 539A.
[21]
Minister
for Justice and Constitutional Development v Moleko
(
supra
)
at [20].
[22]
She, ultimately, took the final
decision, and on 8 September 2016 gave the instruction for the
plaintiff to be charged criminally on charges of fraud and defeating
or obstructing the administration of justice.
[23]
Patel
v National Director of Public Prosecutions and Others
(
supra
)
at [25].
[24]
A mediocre approach ever so often
resorted to in recent times by counsel when faced with difficulties
in properly presenting their clients’ cases.
[25]
Act 51 of 1977.
[26]
Institutiones
Iustinianus
,
Liber
IV Tituli
IV
,
translated by A C Oltmans, 4
th
reprint, 1967, H D Tjeenk Willink & Zoon N.V. -
Haarlem, Amsterdam at 225.
[27]
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at
[27]
.
[28]
Moaki
v Reckitt & Colman (Africa) Ltd & Another
(
supra
)
at 704E;
Bennett
v Minister of Police
1980 (3) SA 24
(C) at 34H;
Dendy
v University of Witwatersrand, Johannesburg
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) at
[27]
;
2007 (5) SA 382
(SCA) at [15] - [16];
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 575
(SCA) at [9].
[29]
Dolus
eventualis
is sufficient. See
Heyns
a Venter
2004 (3) SA 200
(T) at [13] - [14];
Minister
for Justice and Constitutional Development v Moleko (supra)
at [64].
[30]
Ramsay
v Minister van Polisie
1981 (4) SA 802
(A) at 820A-C;
Jansen
van Vuuren v Kruger
[1993] ZASCA 145
;
1993 (4) SA 842
(A) at 856A - 857G.
[31]
LAWSA, 2
nd
edition, vol 15, part 2, § 315.
[32]
Lederman
v Moharal Investments (Pty) Ltd
(
supra
)
at 197;
Heyns
v Venter (supra)
at [8];
Amerasinghe,
C F Defamation and other Aspects of the Actio Iniuriarum in
Roman-Dutch law
,
Colombo Lake House 1968 at 20.
[33]
Prinsloo
v Newman
1975 (1) SA 481
(AD) at 492;
Lederman
v Moharal Investments (Pty) Ltd (supra)
at
196.
[34]
Beckenstrater
v
Rottcher
& Theunissen
1955 (1) SA 129
(AD) at 135;
Heyns
v Venter (supra)
at 211.
[35]
Amerasinghe
(supra)
at
55-56.
[36]
Thompson
and Another v Minister of Police and Another
1971
(1) SA 371
(E) at 375.
[37]
If the plaintiff is successful, he
will be entitled to damages for both injury to personality
and
pecuniary loss suffered. See
Heyns
v Venter (supra)
at 213-214. Compensation for damages caused by injury to the
personality, will be awarded as a
solatium
under the
actio
iniuriarum
,
whilst compensation for pecuniary loss will be under the
actio
legis Aquiliae
.
However, a plaintiff has only one action for compensation under the
actio
iniuriarum
- see
Le
Roux and Others v Dey (supra)
at [21] - [23]. In the instance, the plaintiff confined his
claim to the
actio
iniuriarum
.
[38]
Supra.
[39]
Supra.
[40]
§ [6] above.
[41]
Patel
v National Director of Public Prosecutions and Others (supra)
at [21] - [25].
[42]
Supra
at [5].
[43]
Supra
at
[62] - [65].
[44]
Treatment
Action Campaign v Minister of Health
2005
(6) SA 363
(TPD) at 371C-E.