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[2022] ZAECMKHC 112
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Minister of Police v Marula (CA 89/2021) [2022] ZAECMKHC 112 (29 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA 89/2021
In
the matter between:
MINISTER
OF
POLICE
APPELLANT
and
AYANDA
MARULA
RESPONDENT
JUDGMENT
MBENENGE JP and
KRÜGER AJ:
Introduction
[1]
This is an appeal against a judgment delivered by the Regional
Magistrate’s
Court, King Williams Town
[1]
in which the merits of a claim for malicious prosecution were decided
in favour of the respondent.
[2]
At the commencement of the hearing, condonation was granted for the
late prosecution
of the appeal and its reinstatement by the
appellant, and for the respondent’s late delivery of his heads
of argument.
[3]
To avoid confusion, reference will be made to the parties as they
were in the Regional
Court; the respondent, Ayanda Marula as ‘the
plaintiff’, and the appellant, the Minister of Police as ‘the
defendant’.
Background
[4]
It was not in dispute that the plaintiff, in the company of three
friends, drove to
Ndlovini Township on 26 February 2013 to confirm an
arrangement about the payment of money to them by the deceased and
two others.
At Ndlovini, one of the friends, Odwa Mhlaba,
[2]
stabbed the deceased with a knife, causing his death. Mhlaba reported
to the South African Police Service
[3]
on the same day that he had stabbed the deceased. He was arrested
later that day. Two days later, he admitted in writing to having
stabbed the deceased, adding that he had been acting in self-defence.
[5]
On 27 February 2013, the plaintiff deposed to a statement regarding
the incident to
Warrant Officer Tweni.
[4]
He admitted having been in the company of Mhlaba and others and
having travelled together to and from
Ndlovini
in his vehicle on 26 February 2013 but recorded that he neither
stabbed the deceased nor witnessed the stabbing.
[6]
The plaintiff was arrested for, and charged with, the murder of the
deceased by Tweni,
on 5 March 2013. He appeared with his co-accused,
including Mhlaba, in court on the same day on a charge of murder. The
matter
was postponed, and the plaintiff thereupon detained by order
of the court.
[7]
On 15 March 2013, the plaintiff was released on bail. Some months
later, after several
court appearances, on 22 November 2013, the
murder charge against the plaintiff was withdrawn.
In the Regional Court
[8]
The plaintiff testified that Tweni arrested him, despite knowing that
he was not responsible
for the death of the deceased. According to
the plaintiff, Tweni informed him that he and the prosecutor decided
that Mhlaba’s
companions, including him, must be arrested.
Tweni displayed a negative attitude towards him. He did not want to
listen to him
and arrested him despite his explanation that he did
not kill the deceased. The plaintiff further testified that Tweni
told him
that the deceased was his (Tweni’s) herdsman and that
they were from the same locality.
[9]
Tweni testified that he was the investigating officer in the criminal
matter concerning
the murder of the deceased. He received the
relevant docket on 27 February 2013 and collected witness
statements, from among
others, the plaintiff. The prosecutor, after
the first appearance of Mhlaba in the district court on a charge of
murder, and after
reading the statements in the docket, instructed
him to arrest the men who were with Mhlaba at the scene of the crime.
This included
the plaintiff. The prosecutor expressed the view that
Mhlaba’s companions may have been involved in the commission of
the
offence and instructed him to arrest and charge them as
co-accused with Mhlaba. Based on this instruction, Tweni proceeded to
arrest
the plaintiff. Tweni conceded to knowing, at the time of the
arrest, that the plaintiff did not kill the deceased. He denied that
the deceased was his herdsman.
The impugned judgment
[10]
The Regional Court was seized with a claim for malicious prosecution
against the SAPS. From the
record, it was evident that the
plaintiff’s claim for wrongful arrest and detention against the
defendant was withdrawn at
the commencement of the trial as it had
prescribed.
[11]
Relying on
Qwaba
v Minister of Safety and Security
,
[5]
the Regional Magistrate held that it was appropriate for a claim for
malicious prosecution to be instituted against the Minister
of
Police. This was in response to Tweni’s evidence that he acted
on the instruction of the prosecutor. That evidence
as well as
the defendant’s argument that decisions regarding prosecution
fell exclusively in the domain of the National Prosecuting
Authority
[6]
were rejected, with
the Regional Magistrate finding that, by placing reliance on the
authority of the NPA to institute criminal
prosecutions, the
defendant attempted to escape liability for malicious prosecution.
[12]
From that premise, the Regional Magistrate held that the arrest and
the prosecution of the plaintiff
were intertwined. Since an arrest
without a warrant may be carried out by a peace officer who has a
reasonable suspicion that a
person committed a Schedule 1 offence,
[7]
it was held that an arresting officer in the position of Tweni ought
to have taken steps to confirm his suspicion as reasonable
before
arresting the plaintiff. Based on that finding, the Regional
Magistrate focused the subsequent enquiry on the defendant’s
justification for the plaintiff’s arrest.
[13]
The absence of a written instruction to Tweni in the investigation
diary resulted in the Regional
Magistrate concluding that Tweni did
not receive an instruction from the prosecutor.
[8]
Even if an oral instruction had been given, she held, Tweni arrested
the plaintiff without justification, knowing that he was innocent.
As
such, it found that the defendant set the law in motion without
reasonable and probable cause. This triggered the malicious
prosecution of the plaintiff which ended in the withdrawal of the
charge against him, resulting in it being concluded that the
plaintiff successfully proved his claim against the defendant.
The parties’
contentions
[14]
The appeal is predicated on two contentions namely, that the Regional
Court erred in finding
that Tweni set the law in motion against the
plaintiff and that he did so with malice.
[15]
Mr
Petersen
, for the defendant, submitted that the plaintiff
failed to discharge the burden of proof on a balance of probabilities
and that
the Regional Magistrate conflated the requirements for
claims based on unlawful arrest and malicious prosecution. He
highlighted
that the plaintiff failed to provide any evidence that
Tweni played an active role in pursuing his prosecution. Such
evidence,
it was submitted, was required since the authority to
prosecute rests constitutionally and statutorily with the NPA.
[16]
In respect of malice, it was contended on behalf of the defendant,
that there was no evidence
of the plaintiff proving malice on the
part of Tweni. In this regard, Mr
Petersen
referred to the
uncontested evidence of Tweni that he acted on the instruction of the
prosecutor to arrest the plaintiff. In particular,
in instructing
Tweni to arrest Mhlaba’s companions, the prosecutor considered
that the companions could have been co-conspirators
who had a case to
answer; Tweni honestly believed that the plaintiff had a case to
answer when he arrested him as directed. This
was bolstered by
Tweni’s evidence that he had hoped the plaintiff would be
convicted of murder.
[17]
Mr
Mduna
, for the plaintiff, submitted that the defendant did
not provide any justification for Tweni’s arrest of the
plaintiff whom
he knew to be innocent. Mr
Mduna,
however,
conceded that the plaintiff and not the defendant bore the onus to
prove all the requirements for a claim based on malicious
prosecution.
The law
[18]
In
Minister
of Justice and Constitutional Development & Others v Moleko
,
[9]
the requirements for an action for malicious prosecution were stated
as being that-
(a)
the defendant sets the law in motion (instigated or instituted the
proceedings);
(b)
the defendant acted without reasonable and probable cause;
(c)
the defendant acted with “malice” (or
animo
injuriandi
); and
(d)
the prosecution failed.
[19]
The Constitutional Court confirmed these requirements in
Kruger
v National Director of Public Prosecutions
.
[10]
[20]
The impugned judgment is supine regarding how the plaintiff had
established that Tweni acted
without reasonable and probable cause.
Reference is made in the judgment to
Waterhouse
v Shield
[11]
insofar as it defines ‘reasonable and probable cause’.
Without any elaboration and application of the law to the facts
of
this case, the Regional Magistrate concluded:
‘
The
facts are largely common cause, that there was not even . . .
prima
facie
evidence linking the plaintiff
with the offence of murder. In all [probability], this whole
exercise was malicious hence
the case was subsequently withdrawn
against the plaintiff.’
[21]
However, no issue is raised on appeal regarding the finding of
absence of reasonable and probable
cause. In the view taken of this
matter, nothing hinges thereon.
[22]
Therefore, at issue in this appeal is whether the Regional Court was
correct in finding that
requisites (a) and (c) had been established,
which we now turn to consider.
Did Tweni set the law
in motion?
[23]
The concept of ‘instigation’ has been said to be one of
some complexity.
[12]
[24]
In
Lederman
v
Moharal Investments (Pty) Ltd
[13]
the
then Appellant Division underscored the question of causality that
must be considered in a claim for malicious prosecution.
It held:
‘
In
the present instance, however, as will appear, the enquiry inherent
in the concept “set the law in motion”, “instigate
or institute the proceedings”, is the causing of a certain
result i.e. a prosecution, which involves the vexed question of
causality. This is especially a problem where, as in most instances,
the necessary formal steps to set the law in motion have been
taken
by the police and it is sought to hold someone responsible for the
prosecution. Amerasinghe, Aspects of the Actio Iniuriarum
in Roman
Dutch Law, recognises that “the problem is essentially one of
causation” and suggests (at p 20):
“
The
principle is that where a person acts in such a way that a reasonable
person would conclude that he (i.e. the defendant) is
acting clearly
with a specific view to a prosecution of the plaintiff and such
prosecution is the direct consequence of that action,
that person is
responsible for the prosecution.”’
[25]
In
Minister
of Safety and Security v
Lincoln
,
[14]
the Supreme Court of Appeal referred, with approval, to a judgment of
the Victoria Supreme Court in
Skrijel
v Mengeler
,
[15]
where Nettle J explained that ‘setting the law in motion’
requires ‘active involvement’ of the defendant
in
pursuing the prosecution of the plaintiff.
[26]
Tweni’s evidence was that the prosecutor formed the view that
Mhlaba’s companions
could be co-conspirators, despite the
statements in the docket, including the witness statement of the
plaintiff. The prosecutor
instructed Tweni to arrest the plaintiff
and the other companions, which Tweni accepted and acted upon. Tweni
testified that he
had no authority in respect of the decision to
prosecute.
[27]
There is nothing strange about an investigating officer taking
instructions from a prosecutor
in conducting investigations into a
criminal matter. The taking of instructions in these circumstances is
consistent with the law;
in terms of section 179 of the
Constitution,
[16]
the
authority to institute criminal proceedings vests in the NPA.
Section
20
of the
National Prosecuting Authority Act 32 of 1998
, confers the
power contemplated in
section 179(2)
and all other relevant sections
of the Constitution to institute and conduct criminal proceedings on
behalf of the State; to carry
out any necessary functions incidental
to instituting and conducting such criminal proceedings; and to
discontinue criminal proceedings,
on the Prosecuting Authority. The
Code of Ethics for Public Prosecutors
[17]
also sets out important provisions in this regard. Paragraph 1.1.1(c)
of the Code provides that in the institution of criminal
proceedings,
the prosecutor will proceed only when a case is well-founded upon
evidence reasonably believed to be reliable and
admissible and will
not continue with a prosecution in the absence of such evidence.
Also, according to paragraph 1.2.1(c) of the
Code, the prosecution
must have regard to all relevant circumstances and ensure that
reasonable enquiries regarding evidence are
made, irrespective of
whether these enquiries are to the advantage or disadvantage of the
alleged offender.
[28]
In
Moleko,
[18]
Van Heerden JA found that the police officers in that matter did no
more than ‘at all times [act] on the instructions and
under the
direction of the office of the DPP’. The learned judge of
appeal concluded that the police officers, in taking
instructions
from the prosecutor and carrying them out, played no role in the
decision to prosecute the plaintiff. No difference
is discernible
between the conduct of the officers in
Moleko
and that of Tweni.
[29]
The plaintiff failed to prove that Tweni set the law in motion
against him. There was no evidence
before the Regional Court of
Tweni’s active involvement in pursuing his prosecution. Nor was
there any evidence of Tweni
having acted with a specific view to a
prosecution or that the prosecution was the direct consequence of
that action. He merely
carried the instruction of the prosecutor and,
being no decision-maker himself, is not to blame, especially if
regard is had to
the fact that the prosecutor was, constitutionally
and statutorily, better placed to decide on who ought to stand trial
for the
murder of the deceased.
[30]
The reliance by the Regional Magistrate on
Qwaba
in response to what it saw as ‘passing the buck’ was
misplaced. The relevant
dictum
in
Qwaba
[19]
reads:
‘
Nor
would it have been correct for the court a quo to have jettisoned the
malicious prosecution claim purely by reason thereof that
the
National Prosecuting Authority (who had self-evidently not been
joined in the action) is the only appropriate functionary to
sue in a
malicious prosecution suit. Such reasoning would be fallacious. At
the risk of stating the obvious, nothing precludes
a plaintiff even
from citing a mere informer (ordinarily a lay person), as opposed to
the police or prosecutor concerned.’
The passage does no more
than clarify that a claim for malicious prosecution could be
instituted against the member of the executive
responsible for
policing, or even a lay person. It was never the case of the
defendant that a claim for malicious prosecution against
it was not
competent.
[31]
From that incorrect premise, the Regional Magistrate proceeded to
conflate the requirements,
but more pertinently the onus applicable
in relation to claims based on wrongful arrest and malicious
prosecution, respectively.
Deprivation of liberty through arrest is
prima
facie
wrongful, and the onus is on the arrestor to justify the conduct.
[20]
[32]
In all these circumstances, the Regional Court erred in finding that
Tweni set the law in motion.
There remains to consider the issue
whether malice was proven to exist on the part of Tweni.
Malice
[33]
In the context of the
actio
iniuriarum
‘malice’ means
animus
iniurandi
.
[21]
[34]
In
Moaki
v Reckitt & Colman (Africa) Ltd and Another
,
[22]
Wessels JA held:
‘
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.’
[35]
Moleko
[23]
also elaborates as follows regarding the expression ‘malice’:
‘
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 consequence of
his or her conduct (
dolus eventualis
).
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.’
[36]
Malice and lack of probable cause are two distinct elements, both of
which must be proved, and
either of which may exist without the
other.
[24]
[37]
It is as well to refer to
Minister
of Safety and Security v Tyokwana
,
[25]
where
the Supreme Court of Appeal dealt with the requirement of
animus
[26]
(malice)
which requires a plaintiff to prove -
‘
.
. . that the defendant, while being aware of the absence of
reasonable grounds for the prosecution, directs his or her will to
prosecuting the plaintiff. If no reasonable grounds exist, but the
defendant honestly believes either that the plaintiff is guilty,
or
that reasonable grounds are present, the second element of
animus
iniuriandi
, namely consciousness of
wrongfulness, will be lacking.’
[38]
No evidence was placed before the Regional Court that Tweni directed
his will to the prosecution
of the plaintiff, even if it were to be
accepted that Tweni knew that the plaintiff was not the person who
stabbed the deceased.
Furthermore, the mere assertion of the
plaintiff that Tweni displayed a negative attitude towards him does
not mean that the plaintiff
succeeded in demonstrating consciousness
of wrongfulness. In fact, the evidence that Tweni acted on the
instruction of the prosecutor
and shared his concern that the
companions could in fact be co conspirators of Mhlaba was in no
way refuted.
[39]
The excerpt from the impugned judgment referred to in paragraph 20,
makes it demonstrably clear
that there was, regrettably, lack of
appreciation for the duty cast on the plaintiff to prove each element
of the delict with evidence.
The lack of
prima facie
evidence
linking the plaintiff to the murder and the subsequent withdrawal of
the criminal proceedings against the plaintiff do
not, in and by
themselves, equate to malice.
[40]
There rested an evidentiary burden on the part of the plaintiff to
prove malice, which the plaintiff
failed to do. Once again, the
Regional Magistrate erred in finding that there was malice on the
part of Tweni.
Conclusion
[41]
In sum, the plaintiff failed to discharge the onus placed on him to
prove the requirements for
a claim based on malicious prosecution on
a balance of probabilities. The
Regional
Magistrate ought to have found as much and erred in not doing so. The
appeal must, therefore, succeed.
Order
[42]
The following order shall, therefore, issue:
(a)
The appeal succeeds, with costs.
(b)
The order of the Regional Court is set
aside and replaced with the following:
‘
The
plaintiff’s claim is dismissed with costs
.’
______________________
S M MBENENGE
Judge
President of the High Court
______________________
R KRüGER
Acting
Judge of the High Court
Appearances:
On behalf of the
Appellant:
F Petersen
Instructed by:
The State Attorney
Gqeberha
c/o
Yokwana Attorneys
Makhanda
On behalf the Respondent:
M T Mduna
Instructed by:
B
Nduli Attorneys
East
London
c/o Mgangatho Attorneys
Makhanda
Date
heard: 11
November 2022
Date
delivered:
29
November 2022
[1]
Hereinafter
conveniently referred to as ‘the Regional Court’ and
used, interchangeably, with ‘the Regional Magistrate.’
[2]
Hereinafter
referred to as ‘Mhlaba’.
[3]
Hereinafter
referred to as ‘the SAPS’.
[4]
Hereinafter
referred to as ‘Tweni’.
[5]
[2018]
ZAECMHC 32 para 35.
[6]
Hereinafter
referred to as ‘the NPA’.
[7]
Section
40(1)
(b)
of the
Criminal Procedure Act 51 of 1977
.
[8]
Ibid.
[9]
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA);
2009 (2) SACR 585
(SCA)
para 8.
[10]
[2019] ZACC 13
;
2019 (6) BCLR 703
(CC) para 48. See also
Minister
of Safety and Security v Lincoln
[2020]
3 All SA 341
(SCA) para 20, relying on
Lederman
v Moharal Investments
(
Pty
)
Ltd
1969
(1) SA 190
(A) at 196H,
Moleko
para
8 and
Woji
v Minister of Police
[2014]
ZASCA 108
;
2015 (1) SACR 409
(SCA) para 33.
[11]
1924 CPD 155.
[12]
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2006] ZASCA 162
;
[2007] 1 All SA 375
(SCA) para 9.
[13]
Above
fn 10 at
197 A-F; also see
Heyns
v Venter
2004 (3) SA 200
(T) at 206F-207A;
Prinsloo
and Another v Newman
1975(1) SA 481 (A) at 492 C-G.
[14]
Above
fn 10 para
28.
[15]
[2003]
VSC 270
para 199.
[16]
The
Constitution of the Republic of South Africa, 1996.
[17]
National Director of Public Prosecutors Ethics –
A
Practical Guide to the Ethical Code of Conduct of Members of the
National Prosecuting Authority
(March 2004).
[18]
Above
fn 9 para 11.
[19]
Above
fn 5 para 35.
[20]
J
Neethling and JM Potgieter
Law
of Delict
(8
th
ed) (2020) at 397 fn 109 and the authorities cited therein.
[21]
Above fn 15 para 5.
[22]
1968
(3) SA 98
(A) 104B-C.
[23]
Above fn 9 para 64.
[24]
Francois Du Bois
et
al
Willie’s
principle of South African law
(9
th
ed) (2007) at 1194. Compare,
Miazga
v Kvello Estate
(2008)
282 (DLR 4
th
)
1 at 3, where the Supreme Court of Canada held:
‘
In
order for the to be a finding of malicious prosecution the trial
judge must be able to find an influence of malice from both
an
absence of reasonable and probable cause and other evidence of
malice or improper purpose.’
[25]
[2014] ZASCA 130
;
2015
(1) SACR 597
(SCA) para 15.
[26]
Relyant
Trading
para
5. This was confirmed in
Moleko
para 61-64.