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[2022] ZAECMKHC 121
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Groves v Minister of Police and Another (CA28/2021) [2022] ZAECMKHC 121 (4 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CA 28/2021
In
the matter between:
ROBERT
ANDREW GROVES
Appellant
and
THE
MINISTER OF POLICE
First Respondent
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
Second Respondent
JUDGMENT
RUGUNANAN,
J
[1]
Arising from conduct occasioned by their officials, acting as they
did
in the course and scope of their employment, the respondents were
suited as vicarious defendants in a civil action instituted by
the
appellant as plaintiff in the court
a quo
in which action he
claimed damages against the respondents jointly and severally for:
(i)
“
Claim one: malicious, alternatively wrongful and unlawful
arrest and detention”
; and
(ii)
“
Claim two: wrongful, false and malicious prosecution”
.
[2]
The action proceeded to trial in the regional court, Gqeberha, and in
a judgment delivered on 11 December 2020 the magistrate dismissed the
plaintiff’s claims with a costs order on a scale as
between
attorney and client. The appeal to this court is against the whole of
the judgment and order and is postulated on a diatribe
of some 50
grounds of appeal. Quite simply, an intelligible formulation is that
the magistrate erred in her evaluation of the evidence
on the onus
issue.
[3]
A common
attribute among claims for malicious arrest, and wrongful arrest is
that they are based on the
actio
iniuriarum
.
They are however distinct as was succinctly enunciated in
Newman
v Prinsloo and Another
[1]
as follows:
“
Stated shortly,
the distinction is that in wrongful arrest, or false imprisonment, as
it is sometimes called, the act of restraining
the plaintiff’s
freedom is that of the defendant or his agent for whose actions he is
vicariously liable, whereas in malicious
arrest the interposition of
a judicial act, between the act of the defendant and the apprehension
of the plaintiff, makes the restraint
on the plaintiff’s
freedom no longer the act of the defendant but the act of the law.
The importance of the distinction is
that, in the case of wrongful
arrest, neither malice nor absence of justification need be alleged
or proved by the plaintiff, whereas
in the case of malicious arrest
it is an essential ingredient of the plaintiff’s cause of
action, which must be alleged and
proved by him, that the defendant
procured or instigated the arrest by invoking the machinery of the
law maliciously.”
[4]
In a claim
based on malicious arrest, it is essential for the plaintiff to
allege and prove that the defendant acted maliciously
and without
reasonable and probable cause. The same applies to an action based on
malicious prosecution (see
Thompson
and Another v Minister of Police and Another
[2]
)
though, in addition, it is required of a claimant to allege and
prove: that the defendant set the law in motion, and that the
prosecution failed.
[3]
Where
reasonable and probable cause for an arrest or prosecution exists the
conduct of the defendant instigating it is not wrongful
(see
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA) at paragraph [14]).
BACKGROUND
AND EVIDENCE
[5]
This is a case of mistaken identity to which there is a temporal
dimension.
As is required for both claims, the appellant has pleaded
the necessary averments of malice and the absence of reasonable and
probable
cause, but the inquiry into the determination of proof of
these elements is necessarily directed at the state of affairs at the
time of events leading to his arrest, detention and prosecution. On
the alternative to claim one, where the first respondent has
pleaded
that the appellant was arrested on the strength of a warrant of
arrest but the arresting officer having testified that
he was unaware
that he had a discretion to arrest, the inquiry is directed at
whether lawfulness has been established. The requirement
of
lawfulness also applies in respect of justifying the appellant’s
detention following his arrest and subsequent appearances
in court.
[6]
The scope
of these issues renders it unnecessary to regurgitate all the
evidence in the appeal record.
[4]
Counsel who conducted the trial (being those who appeared before us),
aside from an air of condescension, had an appetite for repetition.
The record demonstrates notable instances for long-windedness and
imprecision in formulating objections, and in other instances
for
speculating on issues affecting cross-examination which, in sum,
indubitably inflated the record. Their manifest antagonism
for each
other did little to ensure the decorum of the proceedings. It is
incumbent upon adversaries in litigation to demonstrate
collegial
courtesy towards each other and to maintain deference for the
presiding officer. The record speaks for itself.
[7]
A
convenient starting point begins with the real evidence of video
footage recorded covertly by Constable Jacobus Zaayman in the
performance of an undercover operation on 7 September 2016 at certain
residential premises in Sapphire Street
[5]
which the appellant described as a “
house-shop
and a shebeen”
[6]
(“the premises”). On that day Zaayman purchased a white
substance identified as mandrax. The operation was authorised
under
section 252A
of the
Criminal Procedure Act 51 of 1977
. It is
mentioned that on 8 September 2016, Zaayman presented himself at the
premises for the second time and purchased “
tik”
in addition to mandrax. It is not seriously disputed that, on the
version of the first respondent, the footage recorded by Zaayman
on
the second occasion served as evidence for an additional
investigation docket being opened and a further charge for dealing
in
drugs being preferred against the appellant for which a second
warrant of arrest was obtained. This footage was not presented
as
evidence during trial and for present purposes, this judgment (as in
the trial) will focus on events flowing from 7 September
2016. On
that day Zaayman, purchased three mandrax tablets
[7]
(colloquially known as “
vollas”
[8]
)
through a window of the premises while the appellant, clad in a red
T-shirt,
[9]
stood in the yard at
the driver’s side of a BMW motor vehicle. It is not disputed
that the footage, as recorded, does not
present a clear
identification of the appellant.
[10]
[8]
On the
pleadings the appellant’s case commences with his arrest in the
early hours of 26 September 2016 which he alleges was
effected
without a warrant. When the police gained entry to the premises,
among them Detective Constable William Dietrich and Captain
Kriel, he
was informed that there was a warrant for his arrest but could not
recall the name of the officer who addressed him.
He enquired as to
the whereabouts of the warrant but was rebuffed and told to dress
warmly and get his medication.
[11]
He observed that the police did have papers with them.
[12]
He was not given a reason for his arrest
[13]
and was placed into the back of Captain Kriel’s vehicle and
escorted to the Mount Road police station after a female suspect
was
arrested along the way. At the police station he was handed a
document and was told to sign it. When he read the document it
disclosed the reason for his arrest, more specifically the charge of
dealing in drugs. He was taken to court and while detained
in the
court cells, at which time he was consulting with his legal
representative, the prosecutor Ms Liesel Landman, walked by.
His
legal representative approached her and requested his release on bail
- adding that he (the legal representative) could vouch
that the
appellant did not have any other cases against him. According to the
appellant, Ms Landman merely indicated that she needed
to verify this
information.
[9]
The appellant confirmed his first appearance before a magistrate on
28 September
2016 on which date the matter was postponed to 3
October 2016 for a formal bail application. He appeared in court on 3
October
2016 and while standing in the dock, Ms Landman approached
him urging him to plead to the charge due to the revelation in the
video
footage of his transaction with a policeman. He declined to do
so, and the case was then postponed to 6 October 2016 due to the
unavailability of his profiles. For her
part Ms
Landman denied
approaching the appellant; he was legally represented and it was
unnecessary for her to communicate directly with
him. On 6 October
2016 he was granted bail in the amount of R2 000 and was released the
same day. The charge against him was withdrawn
on 30 May 2018.
[10]
On viewing
the footage which had been procured by his legal representative the
appellant stated that he was able to recall the events
of 7 September
2016. He confirmed that he was standing at the driver’s side of
the BMW vehicle while wearing a red T-shirt
but sought to distance
himself from any indication that he had knowledge that drugs were
sold from the premises, or that Zaayman
had purchased them through
the window.
[14]
Despite his
protestations to the contrary (correctly rejected by the trial
court), he eventually made concessions consistent with
the admissions
extrapolated from the video footage of 7 September 2016 in
particular, that he was not easily identifiable in the
footage.
[15]
[11]
Backtracking
to events prior to the appellant’s arrest begins with Zaayman’s
deployment from his station in George and
his arrival in Gqeberha on
6 September 2016. On that date he met up with his handler and was
presented with the photograph of the
target person from whom the
purchase would be made. The target identified in the photograph, and
from whom the drugs would be acquired
[16]
was Robert Groves, the appellant. Zaayman estimated that it had taken
him less than two minutes to study the photograph to enable
him to
precognise the target.
[17]
Although it was disclosed to him during the briefing session that the
target had a brother, no photograph to this effect was put
before
him.
[18]
Zaayman narrated that
he was given cash and was escorted at night and shown the premises
where the transaction would be made. On
the day in question, while
equipped with a camera the size of a button attached to his
shirt
[19]
, he observed a
person wearing a green cap standing inside the premises at a window
overlaid by mesh wire
[20]
. The
window was barred from the outside. Albeit that the evidence
indicates that other persons were present at the scene, they
were not
identified and their respective roles are inconsequential to the
events that subsequently unfolded.
[21]
[12]
Zaayman
observed the BMW and the person in a red T-shirt standing outside the
vehicle. While approaching the window Zaayman asked
the person
wearing the green cap for three
vollas
,
at which point the person in the red T-shirt, who was approximately
2,5 metres away
[22]
, enquired
inter
alia
if
he was a policeman. Zaayman responded in the negative - at which
point the person told him to “
go
stand there”
[23]
,
suggesting by implication, the window. Due to the presence of a dog
between them, Zaayman did not pay much attention to the person
in the
red T-shirt; he was fixated on the dog and simultaneously the window
where the drugs were to be purchased.
[24]
[13]
On
returning to the safehouse, Zaayman, believing that he made the
purchase from the target, met with the investigating officer
Detective Constable William Dietrich to whom he reported this. They
watched the video footage on the screen of a small device linked
to
the video camera. Zaayman attributed the identity of the appellant,
and hence the name Robert Groves, to the person at the window
without
the slightest inclination that the person in the red T-shirt who
stood beside the BMW, was the appellant. Until that point
in time
Zaayman did not know that the person at the window from whom the
mandrax was purchased was the appellant’s brother.
Some three
years later
[25]
during a
consultation session after the appellant instituted action for
damages, only then did the appellant’s name and identity
become
known to him. This had also become apparent to him during the conduct
of the trial consequent to admissions drawn from the
video footage,
and the appellant’s evidence that there was a facial
resemblance between himself and one of his brothers.
[14]
Following
the report to Dietrich, Zaayman deposed to a statement under oath
which had been taken down by Dietrich. Zaayman returned
to his
station in George and had no further involvement in the arrest,
detention nor in the prosecution of the plaintiff.
[26]
[15]
Dietrich is
a member of the organised crime unit which specialises in the
investigation of gang related activities. He investigated
the matter
in which Zaayman implicated the appellant, as also the numerous other
matters for which arrests were made during the
course of operation
“
Fiyela
”
(dealt with below). He was not involved in the briefing and induction
of Zaayman – this was done by the handler.
[27]
He confirmed that Zaayman was tasked to purchase drugs at the
specified premises and from the specific target person. When Zaayman
had later met up with him and handed over the drugs, he was able to
identify them as mandrax due to their distinctive odour. After
having
viewed the footage with Zaayman, he obtained a statement from
him.
[28]
[16]
Dietrich
stated that the footage was viewed in real time on a small device
[29]
- and merely for establishing that a transaction occurred
[30]
at the specified premises
[31]
.
The footage disclosed that money was handed over and drugs were
received.
[32]
This was also
confirmed by Zaayman.
[33]
From
that perspective Dietrich was satisfied that a transaction had been
concluded.
[34]
But insofar as
Zaayman’s statement identified the name of the appellant as
Robert Groves, the target, this information was
proffered by
Zaayman.
[35]
Dietrich conceded
that when he first viewed the footage he could not identify the
appellant. He explained that the recording was
“
quite
shaky”
[36]
but since Zaayman was familiar with his brief
[37]
he accepted Zaayman’s identification under oath
[38]
and so formed the view that the appellant was a suspect
[39]
.
Although Dietrich had previous knowledge of the identity of the
appellant, that in July 2016 the appellant was arrested for being
in
possession of a stash of 49 mandrax tablets found in the glove
compartment of his wife’s motor vehicle, and that there
was a
previous episode of a drug transaction at the premises, also recorded
in video footage which showed the appellant being present
but not
involved in the transaction
[40]
,
the evidence indicates that Dietrich examined the footage - not with
a view to conducting an identity assessment - but rather
to establish
that a transaction had been concluded in which money was exchanged
for drugs.
[17]
In the
events that followed, and on the basis of the statement by Zaayman,
Dietrich, believing the appellant to be a suspect, obtained
a warrant
for his arrest - the purpose of which was to bring him before
court.
[41]
The warrant was
authorised and issued on 23 September 2016.
[42]
[18]
In the
course of an operation codenamed “
Fiyela”
conducted in the early hours of 26 September 2016, the appellant was
arrested at 01h50 at the aforementioned premises. Approximately
24
other suspects variously located in the district
[43]
were arrested during the operation. The appellant was arrested by
Warrant Officer Peter Swanepoel who commanded one of several
police
task teams that were dispatched during the operation. In a briefing
session prior to the commencement of the operation the
details of the
implicated cases were communicated to the task officers of various
police units that were involved in the operation.
[19]
The
objective of the operation was to arrest (i.e. “
take
down”
)
the identified suspects.
[44]
Each of the units involved in the operation had a team leader or
commander who was to effect the arrest. Dietrich handed to Swanepoel
a package containing
inter
alia
the
warrant of arrest.
[45]
Digressing briefly, it is noted from the magistrate’s
assessment of the evidence that she reasoned that the appellant’s
arrest was not an isolated event. This is evaluated with regard to
the purpose and exigency of the operation which, from what emerges
below, assumes relevance to Swanepoel’s evidence on whether he
exercised a discretion in arresting the appellant.
[20]
Following
his arrest the appellant was detained at the Mount Road Police
Station. The evidence indicates that Dietrich was not present
at the
premises at which the appellant was arrested and was deployed in a
separate unit during the conduct of the operation. He
was not in
favour of the appellant’s release on bail. This is signified by
his entry in the docket “
no
bail until profiles and 69s verified”
.
[46]
He explained that the appellant was kept in detention since the
investigation team needed to verify whether he had prior cases
that
related to the matter for which he was arrested.
[47]
He acknowledged that the presiding magistrate before whom the
appellant would appear was vested with the discretion to decide
whether or not a valid reason existed to refuse bail.
[48]
On the information available to Dietrich, pertinent to which was the
material incorporated in the
section 252A
application, the appellant
was classified as a gang member.
[49]
In addition, Dietrich had personal knowledge that the appellant had
been involved in previous cases.
[50]
He intended to verify this information by resort to the appellant’s
profiles and SAP69s. For these reasons he was not swayed
by the
appellant’s favourable responses indicated on his bail
information form. In short, it is readily apparent that Dietrich
could not accept them uncritically without checking them. Upon the
investigation docket being referred to the prosecutor Ms Liezel
Landman, for the appellant’s first appearance in court on 28
September 2016, she took note of the recommendation by Dietrich.
[51]
The detail contained in her evidence is traversed elsewhere in this
judgment where the questions of malice and the absence of reasonable
and probable cause are addressed.
[21]
At a
subsequent stage Dietrich was contacted by the regional court
prosecutor Mr Mark Drieman. Dietrich was informed that the video
footage, on being viewed by the appellant’s legal
representatives, disclosed that the appellant was not the target
person
who sold the drugs to Zaayman.
[52]
Following this disclosure, Dietrich met with Drieman. He could not
recall the date of the meeting. The footage was viewed on a
larger
device. The replay was in still motion and occurred frame by
frame.
[53]
Relying on his
previous knowledge of the appellant’s identity and appearance,
Dietrich identified the appellant as the person
who wore the red
T-shirt.
[54]
He concluded that
the mandrax was not purchased from the appellant but deduced
nonetheless that the appellant facilitated the transaction
when he
said to Zaayman, “
gaan
staan daar” -
the
implication being to stand near the window of the premises.
[55]
He thus formed the view that in facilitating the transaction the
appellant committed the offence of dealing in drugs.
[56]
This was further informed by Dietrich’s knowledge acquired from
a previous undercover investigation involving the appellant’s
brother, that drugs were indeed sold from the premises and that the
premises were owned by the appellant’s father.
[57]
[22]
Swanepoel
confirmed that he arrested the appellant on a warrant of arrest that
indicated a charge of dealing in drugs. Entry was
gained to the
premises through forceful means after efforts at knocking on the door
and calling out for the occupants did not elicit
a response.
[58]
Prior to the arrest he identified himself to the appellant and
explained the reason for his presence.
[59]
He informed the appellant that he was in possession of a warrant of
arrest and a search warrant.
[60]
He exhibited these documents to the appellant.
[61]
He explained the appellant’s constitutional rights to him and
arrested him on the aforementioned charge.
[62]
On the face of the warrant he certified, in manuscript, the
appellant’s arrest on the relevant date (26 September 2016) and
at the relevant time (01h50). He did this in the presence of the
appellant.
[63]
En route to the
police station, a further arrest was made, and in the course of the
operation numerous other suspects were arrested
by the various task
teams. On arrival at the station he once again informed the appellant
of his rights and issued him with a “Notice
of Rights in terms
of the Constitution” which they both signed. Thereafter the
appellant was detained. Swanepoel maintained
that he arrested the
appellant on the authority of the warrant and the purpose of the
arrest was to ensure that the appellant be
brought before court.
[64]
He stated that he was not aware that he had a discretion to effect
the arrest.
[65]
[23]
Ms Liesel
Landman, was the prosecutor who dealt with the police investigation
docket when the appellant first appeared in court
on 28 September
2016. She read the docket and determined that there was a
prima
facie
case against him. Her determination was based on the affidavit by
Zaayman. In addition, the contents of the docket revealed that
photographic material of the identity of the appellant was shown to
Zaayman. For these reasons she accepted that his identification
of
the appellant as the person from whom mandrax was purchased, was
credible.
[66]
She did not have
prior knowledge of the appellant’s identity
[67]
and did not view the video footage. This would have been done in the
presence of and in consultation with Zaayman in preparation
for the
criminal trial.
[68]
She viewed
the footage in the course of consultations in preparation for giving
evidence in the trial court. Given that the footage
did not present a
clear identification of any of the persons therein, she maintained
that even if she viewed it at the time of
the appellant’s first
appearance, her decision to place the matter on the court roll would
not have been affected since she
had concluded, for reasons already
stated, that there was a
prima
facie
case.
[69]
Even though the
issue of the appellant’s identity in the footage was resolved,
she contended (as did Dietrich) that the appellant
facilitated the
transaction and committed the offence of dealing in drugs
[70]
for which he could still be charged.
[24]
On 28
September 2016 the appellant’s case was remanded to 3 October
2016 for obtaining his profiles and SAP 69s and for a
formal bail
application. At his first appearance, the appellant was legally
represented by an attorney and it was agreed with the
latter, who
raised no objection, that the matter be remanded. This was not
disputed by the appellant
[71]
nor did he dispute that the reason for the postponement was disclosed
to the presiding magistrate who raised no issue therewith.
[72]
Although the legal representative did inform Ms Landman that the
appellant had no previous convictions, she was reluctant to
uncritically
accept his word since she needed to independently
ascertain the appellant’s status from the required
documentation in order
to make a proper decision regarding the
question of bail.
[73]
In her
experience it often occurs that accused persons do not disclose their
previous convictions, even though they are under a
legal duty to do
so but would at a later stage lay claim to the excuse that they had
forgotten.
[74]
[25]
On 3
October 2016, the unavailability of the required documentation
occasioned a further postponement until 6 October 2016, on which
date
Ms Landman received the appellant’s profiles. Absent any
indication of previous convictions or pending cases, she issued
instructions that the appellant be released on bail fixed in the sum
of R2 000.
[75]
Her
instructions were attended by another prosecutor and the appellant
was released on bail. On both occasions, 28 September 2016
and 3
October 2016 Ms Landman maintained that the magistrate had no
difficulty granting the remands for the reasons stated.
[76]
ARREST AND DETENTION
(UNTIL FIRST COURT APPEARANCE)
[26]
It is
clearly established that the power to arrest may be exercised only
for the purpose of bringing a suspect to justice and that
the arrest
is only one step in that process.
[77]
Once an arrest has been effected the suspect must be brought to court
as soon as reasonably possible and at least within 48 hours
(depending on court hours). It is trite that the
onus
rests on a defendant to justify the arrest and detention. A failure
to establish that the arrest was lawful will result in the
detention
being unlawful. In argument the appellant advanced the following
grounds in support of the contention that his arrest
and detention
were unlawful: (i) the arresting officer failed to exercise a
discretion before arresting him; (ii) a warrant of
arrest was not
produced despite demand, nor was it shown to him, and (iii) he was
not brought to court as soon as reasonably possible.
Failure
to exercise a discretion
:
[27]
At one
level, Swanepoel’s evidence clearly indicates that he was not
aware that he was vested with a discretion to effect
the arrest. At
another level he stated that he would have arrested the appellant
even if he knew he had a discretion because the
appellant faced
charges relating to dealing in drugs.
[78]
The evidence indicates that he evaluated this against the
consideration that the appellant was not charged with possession of
drugs. The arrest was intended to ensure the appellant’s
appearance in court, and as previously mentioned he attended a
briefing
session and was undoubtedly aware of the purpose and
exigency of the operation.
[28]
In these
circumstances it is the substance of the evidence that assumes
relevance in the inquiry as to the lawfulness of the arrest
rather
than the mere concept of the word ‘discretion’. Swanepoel
was cognisant that he was engaged in an operation;
his decision to
arrest hinged on the seriousness of the offence and the intention to
bring the appellant before court. He was not
ambivalent about this.
His evidence signifies that he applied his mind before arresting the
appellant and his decision to do so
was rational. The approach
adopted herein finds support in
Zweni
v Minister of Police and Another
[79]
in which Malusi AJ (as he then was) stated the following:
“
Harry may not
have been aware of discretion as a concept. He struck me as not being
a knowledgeable or sophisticated police officer.
An example is that
in his 11 years’ experience he had never applied for a warrant
of arrest. In my view the court needs to
look beyond mere concepts
but at the substance. He clearly applied his mind before arresting
the plaintiff. His decision hinged
on the identification of the
plaintiff.”
[29]
In so far
as the appellant sought reliance on
Domingo
v Minister of Safety and Security
[80]
,
and
Qunta
v Minister of Police
[81]
,
for contending that the failure to exercise a discretion by itself
rendered the arrest and detention unlawful, it is apposite
to quote
further from
Zweni
(
supra
):
[82]
“
I am obliged to
distinguish the present matter from
[these cases].
Both …
cases … are distinguishable from the present case on the
facts. In both
[cases]
it was clear no thought was given to
the arrest by the arresting officer. The facts in this matter are
quite different as outlined
above. As such I may depart from the
precedent in these two cases.”
[30]
While these sentiments are echoed in this judgment it is appropriate
to briefly distinguish
the cases relied on by the appellant.
Domingo
concerned an arrest authorised by a warrant. The arresting officer
was unaware of a standing order that cloaked him with a discretion
if
he believed on reasonable grounds that on conviction the person to be
arrested would be met with a fine not exceeding a gazetted
amount.
The standing order was not considered by the arresting officer, hence
the observation by Malusi AJ in
Zweni
that “
no
thought was given to the arrest”
. In
Qunta
it was
found that it was improbable that the plaintiff, on being confronted
by an allegation of theft of household items, would
have voluntarily
submitted himself to arrest without protesting that the items were
his property and without pointing them out
to the arresting officer.
Here again, “
no thought was given to the arrest”
.
[31]
In the present scenario, despite his ignorance, Swanepoel did apply
his mind to the arrest.
Failure
to produce warrant on demand
:
[32]
Moving onto
the appellant’s pleaded case that he demanded a copy of the
warrant,
section 39(2)
of the
Criminal Procedure Act places
an
obligation on a person effecting an arrest by virtue of a warrant, to
hand the arrested person a copy of the warrant upon demand.
A refusal
to comply renders the arrest unlawful.
[83]
In terms of the section, Swanepoel was under no obligation to hand
over a copy of the warrant unless the appellant demanded it.
The
evidence indicates that the warrant of arrest and the search warrant
was exhibited by Swanepoel to the appellant, and that
the endorsement
by Swanepoel on the arrest warrant was done in the presence of the
appellant. No evidence indicating that the appellant
demanded a copy
of the warrant was led. Plainly, the case pleaded for him is not
supported by the evidence. The only conclusion
to be drawn from the
evidence is that the warrant of arrest was shown to the appellant and
that he was thereupon arrested in accordance
therewith.
Failure
to be brought before a court as soon as reasonably possible
:
[33]
The particulars of claim read as follows:
“
17
Plaintiff’s initial detention and incarceration in police
custody from the 26
th
of September 2016 to the 28
th
of September 2016, was malicious, alternatively wrongful, unlawful
and without reasonable and probable cause, in that
inter alia
:
…
He was not
brought before a court of law as soon as reasonably possible as he
could and should have been brought before court on
the same day of
his arrest and detention, alternatively, on the next day.”
[34]
A preliminary observation is that the pleading is couched in bald
terms that do not in
any way suggest when “on the same day”
or “the next day” it would have been reasonable for the
appellant
to have been brought before court, nor are material facts
pleaded in support of malice. It is contended for the appellant in
heads
of argument that the first respondent failed to lead evidence
as to why the appellant was not brought to court on the same day of
his arrest, in particular, considering the fact that he was arrested
in the early hours of 26 September 2016 and the fact that
the
investigation was complete at the time of his arrest and detention;
alternatively he should have been brought to court on 27
September
2016.
[35]
Dietrich
testified that it was not possible to have ensured that the appellant
along with all the other suspects could have been
brought before
court within the time-frame contended for by the appellant, given the
number of arrests that were made, the number
of cases that had to be
processed, and he being the only investigating officer. Absent the
specific facts on which the appellant
predicates his allegation, it
would be untenable to have expected Dietrich, without more, to have
effectively dealt with the issue,
as pleaded. It bears mentioning
that despite the appellant being notified of his constitutional
rights, indications that he demanded
to be taken to court either on
the day of his arrest or the day thereafter are significantly
non-existent. This must be evaluated
against his evidence indicating
that his wife contacted his attorney either at the time of his arrest
or soon thereafter. Legal
representation was thus accessible to
facilitate the right to apply for bail. Any criticism or inference
that Dietrich’s
conduct might have been, malicious or
deliberately obstructive
[84]
would be speculative. On the evidence, the only plausible conclusion
is that the appellant was brought to court as soon as reasonably
possible. Whereas the first respondent has discharged the onus of
justifying the appellant’s detention that followed upon
his
arrest, the appellant has not done so for proving that his detention
was malicious.
DETENTION AFTER FIRST
APPEARANCE, AND MALICIOUS PROSECUTION
[36]
Once the
suspect is brought before court
[85]
the authority of the police to detain, which is inherent in the power
to arrest, is exhausted and it is the role of the court to
determine
whether the suspect ought to be detained pending trial.
[86]
In that process the police have a limited role to play,
[87]
save for a duty to bring to the attention of the prosecutor any
factors known to them relevant to the exercise by the court of
its
discretion to admit the suspect to bail.
[88]
[37]
In relation to the appellant’s detention after first
appearance, and his claim for
malicious prosecution, the particulars
of claim are replete with allegations that the respondents’
officials acted maliciously
and without reasonable and probable
cause. The evidence on record brings into focus the conduct of
Dietrich and Ms Landman.
[38]
Whereas malice requires proof of an intention to injure (see
Rudolph
v Minister of Safety and Security
2009 (5) SA 94
SCA at paragraph
[18]), lack of reasonable and probable cause requires proof that the
proceedings (or conduct of the defendant/s)
were initiated without an
honest belief based on reasonable grounds of justification.
[39]
When it is
alleged that a defendant had no reasonable cause for a prosecution
(or for an arrest
[89]
), it
means that a defendant did not have such information as would lead a
reasonable person to conclude that the plaintiff had
probably been
guilty of the offence charged; and if despite having such information
the defendant is shown not to have believed
in the plaintiff’s
guilt, a subjective element becomes operative which disproves the
existence of reasonable and probable
cause (see
Beckenstrater
v Rottcher and Theunissen
1955 (1) SA 129
(AD) at 136 A-B). Put otherwise, a defendant will not
be liable if he/she genuinely believed on reasonable grounds in the
plaintiff’s
guilt (
Relyant
Trading supra
at paragraph [14]).
[40]
Dietrich
had first opportunity to view the video footage obtained by Zaayman
when the latter reported to him once the transaction
on 7 September
2016 had been concluded. Dietrich conceded that could not identify
the appellant and because the footage was
unstable, he relied on
Zaayman’s identification given under oath.
[90]
Hence he engendered a belief that the appellant was a suspect
[91]
.
Although Dietrich had previous knowledge of the identity of the
appellant he examined the footage to establish that a transaction
had
been concluded in which drugs were traded for money. Significantly,
Dietrich did not, at the relevant time, have knowledge
that Zaayman
had mistakenly identified the appellant as the person from whom drugs
were purchased, nor did Dietrich have a suspicion
to the contrary.
His ignorance of Zaayman’s mistake persisted throughout the
course of events which included the appellant’s
first and
second appearances in court until his (i.e. Dietrich’s)
ultimate meeting with Drieman. All the way through there
is no
indication in the evidence to suggest that Dietrich’s state of
mind was influenced by improper purpose or that he knowingly
or
recklessly relied and acted on mistaken information. As a matter of
fact, he acted on the basis that there was direct evidence
of a
transaction involving the sale of drugs. In these circumstances the
appellant’s allegation of malice is not supported
by the
evidence or the probabilities; nor can it be seriously contended that
there was an absence of reasonable and probable cause
in the sense
that Dietrich did not engender an honest belief based on reasonable
grounds, that the appellant was guilty.
[41]
On receipt of the docket prior to the appellant’s first
appearance, Ms Landman formed
the view that there was a
prima
facie
case against the appellant. She acted objectively and
independently. She used her own discretion in making that
determination.
Her reasons therefor are incorporated in the summary
of her testimony dealt with in the preceding paragraphs of this
judgment and
are essentially informed by similar considerations that
influenced Dietrich. Crucial for establishing the requisites of
malice
and the absence of reasonable and probable cause is evidence
indicating that she had knowledge of the identity of the appellant
at
the time of receipt of the investigation docket, and/or that she was
aware of Zaayman’s mistake on the identity issue,
and that this
persisted throughout her involvement in the matter. Such evidence is
significantly lacking and is not supported by
the probabilities.
[42]
In the appellant’s apparent contention that his remand on 28
September 2016 and again
on 3 October 2016 was precipitated by
malice, it is of course a fact that on both occasions he was remanded
in detention. The detention
orders, however, were issued at the
instance of the presiding magistrate who is not an employee of either
of the respondents. What
bears emphasis is that the remand on 28
September 2016 was by agreement and, in our view, did not constitute
a wrongful and improper
use of court process to deprive the appellant
of his liberty. The further remand on 3 October 2016 was certainly
not anything arbitrary
– there was a legitimate reason and it
read persuasively with the magistrate.
[43]
As with Dietrich, there is no scope for contending that Ms Landman
knowingly or recklessly
relied and acted on mistaken information nor
can it be seriously contended that there was an absence of reasonable
and probable
cause in the sense that she did not engender an honest
and reasonable belief in the guilt of the appellant.
[44]
Where the appellant has failed to prove malice and the lack of
reasonable and probable
cause it is considered unnecessary to deal
with the remaining requirements for purposes of his claim for
malicious prosecution.
CONCLUSION
[45]
The
magistrate’s judgment reflects that she holistically considered
the evidence without disregarding issues affecting the
onus. In her
assessment of the evidence she was cognisant that the parties’
presented mutually destructive versions and sought
guidance from
dicta
in cases
inter
alia
such as
National
Employers’ General Insurance Co Ltd v Jagers
[92]
for weighing up the parties’ respective versions and in
determining which version is acceptable and which version falls to
be
rejected. In summary, we are unable to fault the magistrate’s
factual findings as to her conclusion of the preferred version
and
the credibility of the witnesses who supported it.
[46]
A final aspect of the magistrate’s judgment pertains to costs.
Quoting directly from
her judgment, she states: “
The glaring
conclusion that the court arrives at is that the plaintiff’s
case was orchestrated to substantiate a successful
civil claim”.
The reasons informing that finding are fully ventilated in her
judgment. We are not persuaded that she erred in her conclusion
and
find no reason to interfere therewith.
[47]
In the result the appeal is dismissed with
costs.
S.
RUGUNANAN
JUDGE
OF THE HIGH COURT
I
agree.
M.
MAKAULA
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Appellant:
M. Du Toit
Instructed
by
Peter
Mackenzie Attorneys
c/o
N.N. Dullabh & Co
5
Bertram Street
Makhanda
(Ref:
Mr. Dullabh)
Tel:
046-622 6611
For
the Respondents: F.
Petersen
Instructed
by
The
State Attorney (Gqeberha)
c/o
Lulama Prince Attorneys
87
High Street
Makhanda
(Ref:
Mrs L. Prince)
Tel:
061 416 4214
Date
heard:
10 September 2021
Date
Delivered:
04 May 2022
[1]
1973
(1) SA 125
(W) at 127h-128A
[2]
1971
(1) SA 371
(ECD) at 373F-H
[3]
Woji
v Minister of Police
2015 (1) SACR 409
(SCA) at 419f
[4]
S
v Zondi
2003 (2) SACR 227
(W) at 242h
[5]
Examination
in chief Zaayman, Transcript volume 4, 2:3-6
[6]
Cross-examination
Appellant, Transcript volume 2, 18:12-13
[7]
Examination
in chief Zaayman, Transcript volume 4, 3:1
[8]
Cross-examination
Appellant, Transcript volume 2, 1:21-25
[9]
Examination
in chief Zaayman, Transcript volume 4, 6:17-25, 16:13-15, and 17:6-8
[10]
Exhibit
A in Trial Bundle
[11]
Examination
in chief Appellant, Transcript volume 1, 20:1-6
[12]
Cross-examination
Appellant, Transcript volume 3, 28:16-20
[13]
Examination
in chief Appellant, Transcript volume 1, 23:12-13
[14]
Cross-examination
Appellant, Transcript volume 1, 45:23-46:11, and 55:6-56:4
[15]
Cross-examination
Appellant, Transcript volume 2, 77:24-78:4
[16]
Cross-examination
Zaayman, Transcript volume 4, 24:5-14
[17]
Cross-examination
Zaayman, Transcript volume 4, 26:6 and 27:4-5
[18]
Cross-examination
Zaayman, Transcript volume 4, 24:17-21
[19]
Cross-examination
Zaayman, Transcript volume 4, 31:7-12
[20]
Cross-examination
Zaayman, Transcript volume 4, 41:1-9
[21]
Cross-examination
Zaayman, Transcript volume 4, 28:23-29:1-5
[22]
Examination
in chief Zaayman, Transcript volume 4, 9:5
[23]
Examination
in chief Zaayman, Transcript volume 4, 9:14-22; 12:8-15
[24]
Examination
in chief Zaayman, Transcript volume 4, generally 7-20:7-12; also
Cross-examination Zaayman, Transcript volume 4, 26:15-17
[25]
Cross-examination
Zaayman, Transcript volume 4, 37:3-4
[26]
Re-examination
Zaayman, Transcript volume 4, 80:17-21
[27]
Examination
in chief Dietrich, Transcript volume 3, 44:12-22
[28]
Examination
in chief Dietrich, Transcript volume 3, 36:10-21
[29]
Examination
in chief Dietrich, Transcript volume 3, 56
[30]
Examination
in chief Dietrich, Transcript volume 3, 55:7-9
[31]
Examination
in chief Dietrich, Transcript volume 3, 55:12-13
[32]
Examination
in chief Dietrich, Transcript volume 3, 55:7-9 and
Cross-examination, Transcript 3, 132:15-16
[33]
Cross-examination,
Dietrich Transcript 3, 132:20-24
[34]
Examination
in chief Dietrich, Transcript volume 3, 42:3-6, and 55:7-9
[35]
Examination
in chief Dietrich, Transcript volume 3, 42:7-11; 44:23-25
[36]
Examination
in chief Dietrich, Transcript volume 3, 61:10
[37]
Examination
in chief Dietrich, Transcript volume 3, 55:25
[38]
Examination
in chief Dietrich, Transcript volume 3, 42:16-21; and 55:24-56:2
[39]
Examination
in chief Dietrich, Transcript volume 3, 45:10-24
[40]
Magistrate’s
judgment volume 7 at 17
[41]
Examination
in chief Dietrich, Transcript volume 3, 45:22-46:1
[42]
Cross-examination
Dietrich, Transcript volume 3, 106:5-10
[43]
Examination
in chief Dietrich, Transcript volume 3, 46:10-19
[44]
Examination
in chief Swanepoel, Transcript volume 5, 3:7-15
[45]
In
fact there were two warrants of arrest; the second one related to
the events of 8 September 2016
[46]
Magistrate’s
judgment volume 7, 7
[47]
Examination
in chief Dietrich, Transcript volume 3, 47:4-24
[48]
Examination
in chief Dietrich, Transcript volume 3, 49:9-18
[49]
Examination
in chief Dietrich, Transcript volume 3, 48:3-19 and 174
[50]
Examination
in chief Dietrich, Transcript volume 3, 63:4-12
[51]
Examination
in chief Dietrich, Transcript volume 3, 48
[52]
Examination
in chief Dietrich, Transcript volume 3, 50:7-13
[53]
Examination
in chief Dietrich, Transcript volume 3, 56
[54]
Examination
in chief Dietrich, Transcript volume 3, 56-57
[55]
Examination
in chief Dietrich, Transcript volume 3, 57-58
[56]
Examination
in chief Dietrich, Transcript volume 3, 58:14-23
[57]
Examination
in chief Dietrich, Transcript volume 3, 65-67
[58]
See
s48
of the
Criminal Procedure Act 51 of 1977
, as amended
[59]
Examination
in chief Swanepoel, Transcript volume 5, 7:17-19
[60]
Examination
in chief Swanepoel, Transcript volume 5, 7:21-22
[61]
Examination
in chief Swanepoel, Transcript volume 5, 9:10-15
[62]
Examination
in chief Swanepoel, Transcript volume 5, 7:24-8:17
[63]
Examination
in chief Swanepoel, Transcript volume 5, 8:18-22
[64]
Examination
in chief Swanepoel, Transcript volume 5, 17:10-14
[65]
Cross-examination
Swanepoel, Transcript volume 5, 48:23-25
[66]
Examination
in chief Landman, Transcript volume 6, 4:4-22, and 6:15-21
[67]
Cross-examination
Landman, Transcript volume 6, 20:11-21
[68]
Cross-examination
Landman, Transcript volume 6, 25:18-22
[69]
Examination
in chief Landman, Transcript volume 6, 6:12-7:1
[70]
Examination
in chief Landman, Transcript volume 6, 10:25-11:10
[71]
Cross-examination
Appellant, Transcript volume 2, 67:14-16
[72]
Cross-examination
Appellant, Transcript volume 2, 68:19-69:19
[73]
Examination
in chief Landman, Transcript volume 6, 13:11-25
[74]
Re-examination
Landman, Transcript volume 6, 105:1-8
[75]
Cross-examination
Landman, Transcript volume 6, 75:10-76:8
[76]
Examination
in chief Landman, Transcript volume 6, 16:1-11
[77]
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 367
(SCA) at paragraph [42], and
Minister
of Police v Bosman & Others
(1163/2018)
[2021] ZASCA 172
(9 December 2021) at paragraph [13]
[78]
Re-examination
Swanepoel, Transcript volume 5, 58-59
[79]
(2629/2013)
[2016] ZAECPEHC 65 (4 October 2016) at paragraph [31]
[80]
(CA
429/2012 [2013] ZAECGHC 54 (5 June 2013)
[81]
(CA
114/2012) [2013] ZAECGHC 53 (5June 2013)
[82]
At
paragraph [33]
[83]
Theobald
v Minister of Safety and Security and Others
2011 (1) SACR 379
(GSJ) at paras [293-294]
[84]
compare
Minister
of Police v Ndaba and Others
(A553/2014) [2016] ZAGPPHC 277 (6 May 2016);
Mashilo
and Another v Prinsloo
2013 (2) SACR 648 (SCA)
[85]
In
terms of
section 50
of the
Criminal Procedure Act 51 of 1977
, as
amended
[86]
Sekhoto
supra
at
384A; also
Minister
of Police and Another v Du Plessis
2014 (1) SACR 217
(SCA) at paragraph [28]
[87]
Sekhoto
supra
at 384A
[88]
Minister
of Safety and Security v Tyokwana
2015
(1) SACR 597
(SCA) at paragraph [40]
[89]
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA) at paragraph [14]
[90]
Examination
in chief Dietrich, Transcript volume 3, 42:16-21; and 55:24-56:2
[91]
Examination
in chief Dietrich, Transcript volume 3, 45:10-24
[92]
1984
(4) SA 437
(E) at 440D-G. See too
Mabona
& another v Minister of Law and Order & others
1988 (2) SA 654
(SE) at 662C-F;
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell et Cie &
others
2003 (1) SA 11
(SCA) para 5;
Dreyer
& another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) para 30.