Mgudlwa v Minister of Police and Another (EL 444/2020) [2022] ZAECELLC 25 (8 September 2022)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2022
>>
[2022] ZAECELLC 25
|

|

Mgudlwa v Minister of Police and Another (EL 444/2020) [2022] ZAECELLC 25 (8 September 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 444/2020
In
the matter between:
LUNGA
MGUDLWA
Plaintiff
and
THE
MINISTER OF POLICE
First
Defendant
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS (NPA)
Second
Defendant
JUDGMENT
HARTLE J
Introduction:
[1]
The plaintiff was arrested in East London
on 11 January 2018 by a local police officer, one Cst. José
Royston Fredericks,
and charged with fraud. He appeared on the charge
at the magistrate’s court on 15 January 2018 and was remanded
in custody
pursuant to several further court appearances until his
release on bail on 29 March 2018. On 30 September 2018 he was
acquitted
on the charge and subsequently sued the first defendant for
damages in respect of a claim for unlawful arrest and detention on
claim 1, and both defendants in respect of a claim for malicious
prosecution on claim 2. The claims are collectively in the sum
of six
million rand.
The
pleadings:
[2]
Whilst
admitting the fact of the plaintiff’s arrest, detention, and
prosecution respectively (pursuant to a charge of fraud
having been
laid against him), the defendants denied that the personality
infringements were unlawful or that there had not been
a reasonable
basis to bring him to court.
[1]
It was asserted that not only had the police been looking for him to
charge him with fraud under a docket that had already been
opened
under EL CAS 68/12/2017, but there was also a warrant out for his
arrest at the time in respect of an earlier case against
him under
Midrand CAS 618/09/2012 (“the Midrand warrant”). The
defendants pleaded that by virtue of the fraud charge
(concerning
which offence there was a reasonable and probable indication
appearing from the docket he had committed), and the outstanding

warrant of arrest, they were authorized in law to arrest him; had
exercised their discretion properly in this respect; and were
further
lawfully justified in detaining him.
[3]
Any suggestion that the prosecution was
malicious or lacking a reasonable and probable cause, or otherwise in
breach of the plaintiff’s
constitutional rights or police
standing orders, was also roundly refuted.
[4]
I point out that there was some
misconception regarding the defendants’ plea that suggested
that the primary justification
for the Plaintiff’s arrest and
detention rested on the Midrand warrant, but a closer reading of the
pleading - side by side
with the corresponding paragraphs of the
plaintiff’s particulars of claim, makes it plain that the
existence of the warrant
was merely co-incidental and, as the
evidence ultimately revealed, an unlucky co-incidence for the
plaintiff. The referencing of
it in the particulars of claim recorded
its existence as an objective fact and that it just so happened to
have served as a further
basis to justify the plaintiff’s
arrest and detention.
[5]
The misapprehension regarding the
defendants’ pleaded case was probably due to an absence in it
of any reference to the provisions
of section 40 (1) (b) of the
Criminal Procedure Act, No. 51 of 1977 (“the CPA”) as a
justification for the arrest,
but it emerges from facets of the
pleading making up the whole that the plaintiff’s arrest and
subsequent detention followed
upon a complaint of fraud having been
laid against him in the first instance (the defendants were astute to
note that the value
involved in the fraud case opened against him was
R85 000,00, underscoring its significance as a Schedule 1 offence),
that there
were “reasonable grounds” to arrest him, and a
reasonable and probable indication in the docket that he had
committed
the offence, all of which bring their case within the ambit
of the statutory justification contemplated by section 40 (1) (b) of

the CPA.
[6]
The submission by Mr. Mpakane who appeared
on behalf of the plaintiff that “their defence is warrant of
arrest. Section 40
is not part of their defence” is in my view
therefore fallacious or a misconception. Indeed, the evidence adduced
by the
defendants clearly evinces a reliance on the statutory
justification with the primary offence of fraud (being a Schedule 1
offence)
being top of mind.
The plaintiff’s
testimony:
[7]
The plaintiff testified that he had been
present at his home at [....] N[....] Crescent, Vergenoeg, East
London at about 2pm on
11 January 2018 whilst sitting in the garage
with his cousin. His aunt and two little girls were present.
[8]
The
events which unfolded at home were, on his version, as follows:
Whilst chatting to his cousin two unknown men arrived in a motor

vehicle and came to the open gate of the premises.
[2]
They asked for him by name. He identified himself. One of the men
told him to sit down and pushed him to the corner. The other
man made
a phone call. Five minutes later a police vehicle stopped behind the
visitors’ motor vehicle. A male and a female
police officer, in
uniform, approached him. One of the first duo confirmed to the
approaching officer, concerning him, that “here
is the
suspect”.
[9]
The male police officer took out his
handcuffs, cuffed him and took him to the police vehicle, aided by
one of the other two men
pushing him, where he was put in the back of
the van together with a dog that was in the vehicle. He was driven
directly to the
Fleet Street Police Station where he arrived, still
handcuffed.
[10]
No communication had preceded this turn of
events except him overhearing one of the first pair of men announce
that they had found
the suspect, and him being told by the officer
who cuffed him that he was going to be taken to the Fleet Street
police station.
[11]
At the police station he was taken to a
room where statements are taken. There a police officer grabbed hold
of his neck (“choked
him”) and held his face for a photo
of him to be taken which they threatened to put on Facebook to show
him out to be a fraudster.
[12]
His
personal belongings including his cell phone were taken from him. A
statement was written, and he was given a document concerning
his
rights. He was informed at the police station that he was being
arrested (although not told for what according to him) and
that he
should await the arrival of the investigating officer to charge
him.
[3]
[13]
He
was taken by another officer to a cell where he waited until Friday
night at 10pm (12 January 2017) when he was charged by the
“arresting
officer” (Sic) who he identified as “Mtanda.”
[4]
Then for the first time he claims he was told that he was being
charged for fraud concerning monies owed to Mr. David Benge and
that
he needed to pay him.
[5]
[14]
He
gave the impression in his evidence in chief that Mr. Benge was not
someone he knew although he had a faint recollection of him
as a
supplier of air conditioners.
[6]
He claimed instead to know a Mr. Randell Williams who he explained is
the person he approached to organize air conditioners for
him to do a
tender installation at Buffalo City College. He professed ignorance
regarding what the fraud charge related to or why
he would be owing
Mr. Benge any monies at all. (Unless something was lost in
translation and he meant to suggest that he had no
inkling of the
existence of the complainant or the basis for the charges
at
the time of the arrest
,
his ignorance in the present proceedings was hard to reconcile even
with his own version since he alleged that Mr. Benge surfaced
after
the installation claiming that he (the plaintiff) had not paid him
for the air conditioners that he (Mr. Benge) had supplied
to him. I
will say more about this later.)
[15]
On Monday, 15 January 2017, he appeared in
A Court at the Magistrate’s Court in East London and was
transferred to the bail
court. He was assisted at his request by a
legal aid attorney.
[16]
Bail
was denied and he was taken to the West Bank Prison. A further
appearance ensued on 18 January 2017. Bail was again denied,
and this
stance continued at several further appearances. He was granted bail
on 28 March 2017 which he paid the following day.
He understood from
what the magistrate stated on the last occasion that there was not a
“sufficient” reason why his
request for bail should not
be entertained and bail was set at “not less than
R1 000.00”.
[7]
[17]
He
continued to appear in court on several subsequent dates until he was
told on 30 September 2019 that he was being found “not

guilty”.
[8]
[18]
The rest of his testimony in chief bore
upon his experience of his arrest and detention, which I need not
relate, given the approach
I take herein.
[19]
According to him what he had told the court
upon trial (by way of his defence) is that this was a private matter
between him and
Mr. Williams and did not concern the complainant.
Indeed, in relating his side of the critical events underpinning and
preceding
his arrest, he recorded surprise that Mr. Benge had called
him after the installation to tell him that he had not been paid for

his air conditioners.
[20]
He
claims that he had communicated his astonishment to Mr. Benge that he
had not been paid at a “progress payment meeting”
[9]
to which the latter had called him and Mr. Williams after the
installation and had enquired from him at the meeting how he thought

he got the air conditioners out of his warehouse if not by having
paid for them, albeit through Mr. Williams with whom he had privity

of contract. He averred that this same narrative (including his
after-the-fact realization that Mr. Williams had not paid Mr. Benge

for the hardware supplied) formed the basis for his successful
defence at the criminal trial.
[21]
Asked why he then still gave an undertaking
to pay Mr. Benge if on his version no monies were owed to him, he
explained that he
had found out that Mr. Williams had not paid Mr.
Benge for the air conditioners and because the latter had begun to
threaten him.
He added that he even threatened his children,
indicating that he knew where they were going to school. He stated
that he would
find him and make an example out of him.
[22]
His bizarre explanation why he relented and
agreed to pay Mr. Benge something was explained thus:
“
I’m
not saying I did not owe Dave. I owed him for the aircons that I
know. I did not say I don’t owe for the aircons.
I did owe for
the aircons because I was supposed to have paid for the aircons. And
that I did pay R20 000 and again R25 000 towards
the aircons. All my
proof of payments were saying towards aircons, towards aircons.”
[23]
He
further accepted that he was indeed paid by the College (R165 000.00
on his version) for the job.
[10]
[24]
In response to the comment put to him that
he had not demurred or proffered any such excuse to Mr. Benge when he
met him on 11 January
2018 at his home, he claimed that it would have
been to no good because every time before when he had insisted that
Mr. Williams
had been paid for the both of them so to speak, Mr.
Benge had intimated that he was unconcerned with the personal
dealings between
himself and Mr. Williams.
[25]
He denied that Mr. Benge (who for the first
time under cross examination he acknowledged as being the second
person who accompanied
the private investigator to his home on 11
January 2018) had purportedly pulled him out from under the bed or
that he had hidden
away from him and Mr. Louw when they came to look
for him at [....] N[....] Crescent. He refuted that any cellphone
calls had been
made in his presence to discuss the Midrand warrant or
having any other knowledge about such a warrant. He dismissed the
assertion
put to him that Sgt Fredericks would say (as he did when he
ultimately testified) that he had not been arrested until he got to

the police station. He also refuted Sgt Fredericks’ anticipated
denial that he was handcuffed, adding a further string to
his bow
that in fact he had been cuffed to the back of the van using the
wrist restraints.
[26]
Despite at first having volunteered that he
was arrested at the station and not earlier at his home, he reneged
on his testimony
in this respect, preferring to argue that the fact
of arrest had to be inferred from the moment the handcuffs were
purportedly
placed on him at his home. Later he at least conceded
that he had been told why he had been arrested, although on his
version,
this only happened at the police station contemporaneously
with him being formally charged.
[27]
In short, he gave the impression that he
had been spirited away under a haze of secrecy and silence by
officers who didn’t
even ask him to identify himself until
later at the police station.
[28]
He insisted that he had been unaware until
after bail had been granted to him that there was an outstanding
warrant for his arrest
emanating from Midrand. He further insisted,
despite the Notice of Rights which he signed indicating this and the
fraud charge
as the basis for his arrest, that he was just told to
sign the document. Asked how he could have signed the notice without
being
aware that he was being charged under the heading fraud and
warrant of arrest as the document plainly indicated, he offered a
different
reason, namely that he assumed that the warrant of arrest
alluded to therein was for the fraud case he was being arrested for.
He relented ultimately that it was improbable that he could not have
been aware of the reference to the Midrand warrant when informed
of
his rights, but now claimed that it was because he had signed the
document under duress and without reading what the notice
conveyed
that he had no knowledge thereof.
[29]
Contrary
to the impression given in his testimony in chief he pinned it on Mr.
Benge that he was the one who had insisted at the
police station that
a picture had to be taken of him and put on Facebook and added this
as a further reason why he felt constrained
and under threat by the
latter to sign the notice of rights. He suggested that these
shenanigans on the latter’s part had
probably also conduced to
him being distracted from seeing the SAPS circulation system enquiry
report that suggested that he was
a wanted person if this had
purportedly been shown to him.
[11]
[30]
Regarding the bail proceedings he claimed
to have been resolute in his attempts to obtain bail and denied
abandoning his application
or having thrown in the towel on the basis
of an acceptance on his part, or by his legal representative on his
behalf, that there
was this outstanding warrant for his arrest. His
answer in the present trial, when pressed, was deliberately meant to
avoid any
responsibility for this happenstance or any knowledge of
the warrant for his arrest at all:
“
MR
COLE
:
Well, let us deal with it. The defence, you are represented by
somebody, a legal representative who informs the Court that you,
the
applicant abandon the bail, because you have got an outstanding
warrant in Johannesburg.
MR
MGUDLWA
: I
could not do that. I could not abandon bail, because I have got a
warrant of arrest in Johannesburg. I believe when I have got
a
warrant of arrest it is either you are, they look for you and they
get you and they arrest you. I do not need to abandon bail
because of
that. I did not abandon any bail.”
[31]
Whilst acknowledging that he had been
charged in Midrand by his ex-wife in respect of a domestic violence
incident (and that he
had failed to appear in 2013 albeit he had
submitted a doctor’s note), he could offer no explanation why
his name appeared
on the police system of wanted persons.
The arresting
officer’s testimony:
[32]
Mr. José Royston Fredericks at
the time of trial was a sergeant in the South African Police Service
attached to the East
London Canine Unit. His responsibilities entail
inter alia
the handling of dogs and patrolling the streets.
[33]
On
11 January 2018 he was on patrol duty in the East London area
together with a female colleague, one Cst. Bheqezi. He received
a
call from a private investigator by the name of Mr. Stefan Louw. Mr.
Louw informed him that he had at the request of the complainant
in
respect of the fraud charge traced the plaintiff who was a wanted
suspect in that matter to a house at [....] N[....] Crescent
in
Vergenoeg.
[12]
Mr. Louw
furnished him with the docket reference number as well as the contact
details of the responsible investigating officer,
one Cst. Ngqwazana,
who he called to enquire about the matter. Cst. Ngqwazana confirmed
to him that the person who Mr. Louw had
traced was indeed wanted as a
suspect by the South African Police Service (“SAPS”) but
since he was busy with something
urgent at the time he asked if he
could assist him by going there to confirm that the claimed suspect
was the real person. At his
request he thus proceeded to where Mr.
Louw was present with the plaintiff in an outbuilding adjoining the
main house at [....]
N[....] Crescent.
[34]
He identified himself to the plaintiff as a
police officer and explained the reason for his presence there. At
his request the latter
made his identity card available to him.
[35]
He called Cst. Ngqwazana again and spoke to
him in the plaintiff’s presence on speakerphone. He related the
particulars of
the plaintiff to him. The latter confirmed that the
plaintiff was indeed the person the SAPS were looking for still to be
charged
on the fraud case.
[36]
Additionally, he revealed to him that
according to the South African Police circulation system (“the
circulation system”)
the plaintiff’s details were
reflected there as a wanted person concerning a Midrand case, the
details of which he related
over the phone to him.
[37]
The plaintiff did not argue against or
resist these facts stated concerning himself, but notably dropped his
head at the mention
of the Midrand case.
[38]
Against this background he informed the
plaintiff that it was necessary to proceed with him to the Fleet
Street Police Station to
confirm the information that was at his
disposal. The plaintiff was not handcuffed or placed under arrest at
that stage although
he was put in the police van and taken to the
station.
[39]
Once
at the station he verified with reference to the circulation system
enquiry report that the plaintiff was listed as a wanted
person since
2013. The fact that the information appeared on the SAPS’
circulation system confirmed to him that a warrant
issued way back
then was still alive.
[13]
[40]
He called for the docket in respect of the
fraud case and established from the complainant’s statement
(without a doubt as
far as he was concerned), that the plaintiff had
committed such offence.
[41]
It was only after taking these preliminary
steps that he in fact formally informed the plaintiff that he was
being placed under
arrest. These formalities were attended to in his
absence by Cst. Bheqezi who read and translated the plaintiff’s
rights
to him as a detainee with reference to both the fraud case and
the outstanding Midrand case which he asked her to add. (That the

plaintiff was so warned at 13h25 on 11 January 2018 appears from the
face of the SAP 14A itself.)
[42]
He was clear that the plaintiff could not
have been under any misapprehension as to why he had been arrested,
or as to the existence
of the Midrand warrant of arrest.
[43]
He
explained that he had managed to obtain a hard copy of the Midrand
warrant of arrest on the day of the commencement of the present
trial
and was satisfied that it conformed in all respects to the
information reflected in the circulation system enquiry report.
[14]
Although an original warrant was not to hand at the time, he had
however requested a senior officer present at the station, one

Captain Alexander, to place a copy of the enquiry report in the fraud
docket and he himself informed the investigating officer
of this
detail. (The enquiry report, printed off the system at 13h14 on 11
January 2018 is included in the fraud docket marked
A4, following
after his own arrest statement in the docket which is marked A3.)
[44]
Under cross examination by Ms. Brauns for
the second defendant he confirmed it to be his reasonable belief
(based on what was in
the docket at the time) that the plaintiff’s
arrest had been justified. Since he was not the investigating
officer, he could
not elaborate on why the plaintiff had not been
granted immediate police bail.
[45]
Under cross examination by Mr. Mpakane for
the plaintiff he refuted that it would have been essential to have
had the original Midrand
warrant of arrest to hand before effecting
his arrest. He explained however that it was more than sufficient to
have relied on
the circulation system enquiry report as a reliable
indicator that the old warrant was still alive. He agreed without
hesitation
that he had been unaware of the terms of the warrant
itself.
[46]
He readily conceded that when he had
explained to the plaintiff why he needed to accompany him to the
police station that he had
not exactly given him a choice in the
matter. He agreed that it was perhaps not appropriate to have driven
him in the back of the
van (where the police dog was located in the
closed off dog compartment). He added however that the plaintiff had
willingly climbed
in at the back of the van himself after explaining
to him why it would be necessary to go to the station and he had
opened the
door for him. (It seemed clear that this was the only seat
in the van he could have occupied given that his colleague occupied
the front passenger seat with him.)
[47]
He conceded that his arrest statement gives
the impression that the plaintiff was arrested at [....] N[....]
Crescent already, but
he maintained his standpoint that the arrest
was not formalized until he was able later at the station to confirm
and verify the
details that had been revealed to him. He had however
indicated to the plaintiff at his home that he might have to arrest
him,
thus he suggested to him that he leave his motor vehicle keys
and personal belongings behind.
[48]
As an aside, the time indicated on the
enquiry report (ostensibly when it was generated off the SAPS IT
system) preceded the plaintiff
having been informed of his
constitutional rights by a few minutes, eleven to be exact, giving
objective credence to the sequence
of events claimed by Sgt
Fredericks.
[49]
As for the insinuation that he had not
investigated
the matter before arresting the plaintiff, he pointed out that he had
relied on the “A1” statement in the fraud docket

(together with the oral information furnished to him by the
investigating officer) and was satisfied that his finding of the
plaintiff
was consistent with and part of standard police
investigation. Although he met Cst. Ngqwazana at the station, he
assured the court
that he had “physically read” through
the statement of the complainant himself before taking the decision
to arrest
the plaintiff and that he had felt personally constrained
to detain him, even if the investigating officer elected to release
him
later on. The imperative in this regard was based on his
understanding that the plaintiff had been at large. The complainant
had
indicated in his statement that he had struggled to get hold of
him and the investigating officer also informed him that it was
a
long time that he had been unsuccessfully looking for him. The
further reason was that there was an active warrant against the

plaintiff which confirmed that he had been a wanted person since
2012.
[50]
The A1 statement of Mr. Benge that informed
him that there was a case made out against the plaintiff of fraud and
therefore reasonable
cause to arrest him was ostensibly deposed to on
4 December 2017. He confirmed its contents as follows:
“
On
Friday 2017.07.07 @ 10:00 I was in my office and Lunga Mgudlwa with
the ID number ………. He came to purchase
five
air-conditioners. I then made an invoice of R85 000.
Our
deal was he will pay me when he got paid from the Buffalo City
Campus. I called him and he told me that he hadn’t got
paid
yet. I decided to go to BCC to check and I was given the records that
he had been paid on 24 July 2017. I then called him
again and I
informed him that I know he has been paid. He promised me on 14
September 2017. He doesn’t answer my phone calls
anymore.
On
the 14
September he sent me the proof of payment via
WhatsApp and it shows the name of his company and the money that he
owes, R85 000.
When I check the details it was mine, and correct
as I am using Nedbank. As we are not using the same bank so it
approximately
takes three working days to appear. On the 18 September
I used online banking and to my surprise there was no money, it did
not
went through. I then called him, informing him about this matter
and he said to me he does not know what could be the problem.
On
the 21 September 2017 @ 20 6:20am he sent me a letter by email
apologising about the whole situation. He then promised to pay
on
2.10.2017. When the date he promised to pay on had passed I called
him and started to ignore my phone calls. He then sent me
a message
via WhatsApp promising to pay R70 000 on the 24
November
and the balance after a week. (R15 000). I started a
conversation after that day and he ignored me and he blocked
on
WhatsApp.
This
all happened so far. I did not give anyone a permission to defraud me
so I am requesting the police to investigate this matter.”
[51]
Its
bears mentioning that the entries in the investigation diary, from
the time the complaint was lodged up to the moment of the
plaintiff’s
arrest, reflect that Mr. Benge was interviewed at the crime centre
simultaneously with the lodgment of the FIC
(First information of the
crime) and again the following day when the SAP429 (b) (Status of
Investigation) was provided to him
and that he was ostensibly
involved in finding the plaintiff using the agency of a private
investigation firm.
[15]
An
entry on 5 December 2017 records that he “told (the
investigating officer) that he has triggered the sources that are

going to inform him when the suspect arrives at home.”
[16]
The prevailing instruction from the supervising Captain is to trace
and arrest the suspect. Ostensibly on 3 January 2018 a trace
report
generated at the behest of Christian Botha Investigations CC was
placed on the docket by the investigating officer (marked
B1) who
noted: “suspect to be traced as he is still at large.”
The last entry by the supervising officer prior to the
plaintiff’s
arrest repeated the same instruction, namely “Trace suspect.”
The testimony of the
complainant:
[52]
The complainant, Mr. David Benge, testified
regarding his interaction with the plaintiff. In 2017 one Mr. Randell
Williams had asked
him on the plaintiff’s behalf if he could
supply air conditioners to the latter. Mr. Williams and the plaintiff
himself had
approached him at his business premises a month later
when the plaintiff confirmed to him that he had a tender to install
five
air conditioners at the Buffalo City College campus. It was
understood that Mr. Williams would be doing the installation. The
plaintiff
promised that as soon as he was paid by Buffalo City
College (which was anticipated within a month), he would pay the
witness for
the air conditioners that were valued at R85 000.00
and they were invoiced to him contemporaneously with their delivery
on
site.
[53]
The misrepresentation that he sought to
emphasize (and which formed the basis for the fraud charge in A1) is
that the plaintiff
would pay him as soon as he was paid by the
Buffalo City College which on everyone’s expectation would be
more or less in
a month’s time. He relied on this
misrepresentation to his prejudice by making the air conditioners
available to him in the
meantime without payment having been first
been received for them. The plaintiff’s criminal intent, and
the actual or potential
prejudice caused to him was to be inferred
from the fact that he did not in fact pay him the invoiced amount
even though he established
independently from the dean of Buffalo
City College that the plaintiff had been paid for the job on 24 July
2017 already and quite
ostensibly had had no intention of paying him
for them. That indication, so Mr. Benge testified, was to be gathered
from the fact
that the plaintiff did not keep him in the loop
regarding when he was paid by the college or had concealed from him
the fact that
he had in fact been paid for the job. He further
avoided his phone calls. Then, after he was ultimately cornered and
the lie exposed
that he was still waiting on the College to pay him,
he made an undertaking to pay him on 14 September 2017.
[54]
On this date the plaintiff purported to
send him proof of payment via WhatsApp as if he had settled his
liability to him in full
(a deposit slip reflecting payment of R85
000,00 into his banking account was put up by him) and feigned
surprise when the witness
informed him that the transaction had
instead actually entailed payment of only R85.00 to him. In his
opinion the proof of payment
consciously put up by the plaintiff to
absolve him of liability was a deliberate falsehood. The plaintiff
purported to pass off
as a clerical error the fact that only a sum of
R85,00 had ultimately been transferred. This was followed up by him
apologizing
for the “whole situation” and making a
further tender to pay him on 21 September 2017.
[55]
As far as he was concerned there had never
been an agreement that monies paid by the plaintiff to Mr. Williams
would conduce to
the payment of the amount invoiced by him to the
plaintiff. Indeed, the plaintiff’s arrangement concerning the
installation
of the units supplied by him had nothing to do with Mr
Williams at all.
[56]
He pointed to his bank statement as proof
that on 20 September 2017 there had been a payment by Ikhona-Nayo
(the plaintiff’s
business) to him of only R85.00.
[57]
The matter ended where the plaintiff
blocked him on WhatsApp. The balance owing after the supposed payment
of R85.00 still remained
outstanding.
[58]
He explained that although he would have
been keen to recover what was owing to him by way of civil
proceedings, he ultimately elected
(as he was entitled) to initiate
the criminal complaint against the plaintiff. He employed Mr. Louw to
find him, which culminated
in him being traced to [....] N[....]
Crescent.
[59]
He confirmed that he himself was present
when Mr. Louw went to the plaintiff’s home and pulled him out
from under the bed
in an outbuilding on the premises where he was
hiding. They had been pointed to the room by the plaintiff’s
aunt.
[60]
Sgt. Fredericks arrived directly after that
and took matters further.
[61]
A prosecution ensued. He went to court five
or six times and ultimately related the same story to the magistrate
upon trial. He
was told after the fact that the plaintiff had been
acquitted on the charge of fraud.
[62]
Ironically the impression created about the
witness by the plaintiff, significantly that he had threatened him
and his family and
tried to extort money from him that was not
entitled to on the plaintiff’s version, was never put to him to
deal with or
to refute.
The testimony of Mr
Randell Williams:
[63]
Mr. Randell Williams confirmed his
involvement in the installation of the air conditioners at the
Buffalo City College campus and
the fact that he had introduced Mr.
Benge to the plaintiff as being someone who could facilitate the
provision of the units for
the job. Mr. Benge was fairly well known
to him, and they had a prior relationship.
[64]
Mr. Benge informed him after the
installation that the plaintiff had not paid him for the air
conditioners. This surprised him especially
since he established
independently from a Mr. Klaas at the College that the plaintiff had
already been paid for the job. Indeed,
Mr. Klaas confirmed to him
that he had personally expedited the payment for the tender
immediately after the installation.
[65]
He confirmed that he, the plaintiff, and
Mr. Benge had met at the latter’s office when the matter was
first discussed. This
was before the installation. Once he had
appraised himself of the documentation that evidenced the order, that
the job was for
real and that the Buffalo City College was on board
for the payment, Mr. Benge agreed to supply the units and was happy
to defer
payment for them until after the job was complete based on
the plaintiff’s undertaking given to him that he would be paid

within the month.
[66]
For his part, the plaintiff agreed
separately to pay him for his labour for the installation. He paid a
deposit of R18 000.00
towards this end (this was received on the
same day that the units were delivered) from which he paid Mr. Benge
for the piping,
consumables and other ancillary materials also
acquired from him to enable him to carry out the installation. Later
he received
a further payment of R20 000.00 from the plaintiff
which extinguished the latter’s liability to him in full.
[67]
When the deal went awry, he helped Mr.
Benge to contact the plaintiff through the latter’s brother who
he knew. He heard later
that the plaintiff had given him an
undertaking to pay him from the proceeds of another job that he was
busy with, and that he
had left his driver’s licence card with
him as security. Mr. Benge also related to him how the plaintiff had
led him a merry
dance or had spun him a yarn to the effect that he
had paid him by way of a deposit into his banking account, only to
find out
three days later after the anticipated deposit had cleared
that the amount transferred to him was instead in the paltry sum of
R85.00 only.
[68]
He had challenged the plaintiff about this
transaction who offered as an excuse that a clerk at the bank had
made a mistake by failing
to add a nought or two, or by not
reflecting the proper amount. He instantly discounted this as a ruse.
[69]
As an aside, the most important feature of
the plaintiff’s version, namely that Mr. Williams had caused
all the trouble by
not paying Mr Benge for the air conditioners from
the R45 000.00 he had paid him, was not out to him to deal with.
The testimony of Ms.
Totyi:
[70]
The
second defendant adduced the testimony firstly of Ms. Lindelwa Totyi
who was the district court prosecutor of D Court at the
Magistrate’s
Court, East London, at the time of one of the plaintiff’s early
appearances in court. Her role, so she
explained, was to assist the
court to assess the trial readiness of the matter at the pre-trial
conference and to put the charge
to the plaintiff. She identified the
pre-trial record document completed by her for submission to the
court on 23 March 2018 as
also an extract from the court record
reflecting the plaintiff’s appearance before court on that date
and the fact that he
had pleaded not guilty to the charge without
giving any plea explanation. She referred the court to the J15 (the
face of the charge
sheet) which evidences his plea of not guilty.
[17]
[71]
She explained that at that stage of the
proceedings the pool prosecutors would have advanced the matter along
to A Court after screening
it and considering it prosecution worthy.
By then the complainant would have been consulted with to make sure
he wished to proceed
with the case, the charge sheet would already
have been compiled, and the defence team would also have indicated
their readiness
to go on trial. The plaintiff would at that point
have been asked to plead and have been invited to provide an
explanation for
his plea.
[72]
All the indications from the court record
confirmed to her mind that these processes had been properly
undertaken.
[73]
With reference to the court record she
identified an earlier appearance by the plaintiff on 27 February 2018
when she acted as public
prosecutor. She explained that this would
have been the first date when she received the docket from A Court
from where she would
have been responsible as the trial roll
prosecutor to move it further along on its trajectory.
[74]
As far as she was concerned the pool
prosecutors would already have applied their minds to whether the
prosecution was justified,
and she added her opinion that at the time
she believed that there were “reasonable grounds to ensure that
there was going
to be a prosecution of the … accused at that
stage”. She assured the court that she was never motivated by
malice
in bringing her bit.
[75]
Under cross examination she acknowledged
that at the times when she appeared as public prosecutor, she would
have applied her mind
to the question whether there were reasonable
prospects of a successful prosecution. She added in this respect that
she was satisfied
that she had all the elements of fraud before her,
namely the date, the place, the victim, the misrepresentation, and
the loss
(prejudice).
[76]
She could not agree with the assertion put
to her by Mr. Mpakane that the complainant’s request for
further investigation
recorded in the final paragraph of his police
statement meant that there should have been a tangible investigation
report filed
before the police could have proceeded on the premise
that the investigation was complete. She opined that it was
necessarily implied
from what was contained in the docket as a whole
(including the police investigation diary) that the investigation
requested by
the complainant was duly undertaken.
[77]
As for the plaintiff’s status at the
time, she asserted that he would have been in custody principally on
the basis of the
fraud charge because he had not yet been granted
bail. The fact that the Midrand warrant was outstanding played a
secondary role
to indicate or substantiate that he was a flight risk.
The testimony of Ms.
Shakira Fourie:
[78]
The last witness for the second defendant
was Shakira Fourie who in 2018 was employed at the East London
Magistrate’s court
as a district court prosecutor based in A
Court, also known as “the inception court”.
[79]
She explained the institutional processes
applicable to new cases coming to the inception court. Dockets
brought in from SAPS are
screened by prosecutors in the pool who
decide based on primary documents contained in the docket whether to
enroll the matter
or not. If the decision is taken that there is a
prima facie
case for enrolment, the case makes its way to the inception court.
[80]
The pool is comprised of three or four
prosecutors who apply their minds to whether cases have merit and
decide on related issues
such as bail etc.
[81]
The primary documents aforesaid would have
included the constitutional warning of the accused, the complainant’s
statement
outlining the offence, witness statements, where
applicable, and bail information.
[82]
Given the institutional machinery in place,
it can be accepted, so she explained, that when the docket got to the
inception court
the screening prosecutors in the pool would have
already satisfied themselves as to the existence of an honest belief
that the
institution of the proceedings was justified.
[83]
The A Court prosecutor’s role would
have been to place the matter before court and then to deal with the
issues of legal representation
and bail.
[84]
She confirmed with reference to the court
record that the plaintiff had appeared for the first time on 15
January 2018 when he made
an election to apply for legal aid. She had
informed the court at that juncture that his release on bail was
being opposed. By
cross referencing the bail information sheet and
documentation in the docket she pointed the court to the circulation
enquiry report
showing that the plaintiff had a pending case against
him. The fact of the outstanding Midrand warrant would in her view in
itself
have given her a reason to oppose bail.
[85]
She
referred the court to his list of previous convictions recorded on
the standard SAP 69’s which indicate that he had two
of these
albeit this seemed to have missed the magistrate’s attention on
28 March 2018, no doubt because he was informed
by the plaintiff’s
attorney that he had none.
[18]
[86]
Other negative indicators appearing from
the investigating officer’s information form also persuaded her
(against the red
flags suggested by section 60 (4) of the CPA) that
there was a basis to oppose bail. These entail entries made by the
investigating
officer to the effect that the plaintiff had no fixed
employment; could easily evade arrest if released (this based on the
SAPS
circulation enquiry report); would be difficult to trace; would
interfere with the investigation or intimidate witnesses; might

commit further offences; and should be kept in custody for his own
safety.
[87]
In
her view and upon a consideration of all the relevant indicators she
reached the decision that there was a
prima
facie
case for enrolment of the case in the first place. She also expressed
the opinion that based on the detail recorded in the bail
information
sheet and the fact that the plaintiff has previous convictions, that
this elevated it to a Schedule 5 offence for bail
purposes. (This
observation was self-evidently made with hindsight. It had not
occurred to the second defendant, or at least it
appears it was not
drawn to the attention of the prosecutor at the time of the bail
application that the plaintiff had previous
convictions).
[19]
[88]
Further she was satisfied that there were
reasonable grounds to conclude that “there was guilt on the
part of the (plaintiff)”
in relation to the offence with which
he had been charged.
[89]
She pointed in the criminal court record to
two appearances by the plaintiff in the magistrate’s court on
15 January 2018,
the first to ensure that he was apprised of his fair
trial rights with regard to bail, and the second in the bail court
itself,
to which he was immediately transferred on the first day.
[90]
On 22 January 2018, which is indicated in
the court record as a bail court hearing date, she referred the court
to a significant
entry made by the magistrate to the following
effect:
“
The
accused is present, bail is abandoned, and accused has a warrant in
Jo-Burg and the accused is in custody, remanded in custody
till the
27
th
of February 2018 for further investigation.”
[91]
A further related entry appears on 7 March
2018 in the charge sheet to the following effect:
“
The
applicant is before court, the defence informs the court that the
applicant abandons bail, as applicant has outstanding warrant
in
Johannesburg. Applies for a remand, matter until tomorrow for docket,
as applicant was requisitioned, matter is remanded to
the 8
th
of March 2018 for docket, and investigating officer. Accused in
custody.”
[92]
It is apparent that at both appearances
aforesaid the plaintiff was legally represented.
[93]
She played no role in the second bail
application, but referred the court to an affidavit filed by Cst.
Zukile Mtanda in which he
attests as follows:
“
I
hereby refer to E/L CAS 68/12/2017
[20]
where I opposed bail based on the W/A of Midrand case against the
accused. I then informed the Midrand branch commander but, he
failed
to co-operate. The decision lies upon the court to grant bail as
Midrand detective failed to execute the W/A so I don’t
have
ground to oppose.”
[94]
As an aside It appears from the record on
23 March 2018 that the prosecutor contemporaneously with the handing
in the affidavit
of Cst. Mtanda indicated to the magistrate that bail
was not being opposed. The magistrate noted his submissions to the
effect
that: “it is not in the interest of justice that (the
plaintiff) be kept in custody and that the police did not execute the

warrant as (the plaintiff) was ill when warrant was issued and handed
sick note to the clerk of the court.” All of this
notwithstanding, the magistrate was “not satisfied” with
Mr. Mtanda’s affidavit and remanded the plaintiff for
a bail
application
[95]
Ms. Fourie added her view that despite the
affidavit of Cst. Mtanda, this would have had no bearing on the fraud
case which still
had to be prosecuted.
[96]
She concluded by confirming that her role
as prosecutor would have been to ensure that there was a reasonable
and probable outcome
of a conviction on the fraud charge. She further
assured the court that in carrying out her responsibilities in this
regard she
harboured no malice toward the plaintiff.
[97]
She maintained her view as to a reasonable
case against the plaintiff when Mr. Cole held out to her that the
strength of the State’s
case ostensibly rested on Mr. Benge’s
statement, the further interview with him (confirmed by an entry in
the police diary
to the effect that “complainant interviewed
thoroughly”) and documents cross referenced in his statement
entailing
SMS’s, WhatsApp’s, proof of payment to the
plaintiff’s company by the college, the contentious deposit
slip,
and banking statements etc.
[98]
Under cross examination she noted that she
would also have had regard to the plaintiff’s constitutional
warning statement
from which it would have been apparent that he had
not put up his own side of the story so to speak, since he had
exercised an
election to remain silent. In any event, so she
explained, she did not consider any obligation to rely on information
supplied
by him in making the significant decisions which she did.
[99]
She agreed that she would not have seen the
Midrand warrant but confirmed under re-examination that it was
permissible for her to
rely on the SAPS circulation enquiry report
because it is an official police document.
Evaluation:
[100]
When
there are irreconcilable versions before the trial court it must draw
conclusions on disputed issues based on findings in respect
of the
credibility and reliability of the various witnesses, considered
together with the probabilities.
[21]
[101]
Such a difference exists regarding
the circumstances of the plaintiff’s arrest which impacts on
Sgt Frederick’s claimed
justification for the arrest. In this
regard the plaintiff sought to create the impression by his testimony
that his personality
rights had been infringed without any
justification and in flagrant disregard of his constitutional rights
in almost every respect,
obliging him to challenge the legality
thereof.
[102]
There is a further dispute concerning what
the plaintiff says happened between himself, Mr. Benge and Mr.
Williams. This goes generally
to the plaintiff’s credibility
and reliability as a witness but also impacts on the question whether
there was an absence
of reasonable and probable cause for the
prosecution and whether the prosecuting parties were actuated by
malice. Regarding the
prequel to the complaint of fraud, the evidence
of Mr. Benge was corroborated by the testimony of Mr. Williams and
furthers aligns
in every respect with the objective evidence, namely
what is in the docket (especially the A1 statement and supporting
documentation).
Further of significance in this respect is the fact
that the plaintiff’s version (which suggests to the contrary
that there
was an absence of reasonable grounds for the prosecution
of which Mr Benge and those initiating the prosecution were or should
have been aware) was not even hinted to these two witnesses under
cross examination.
[103]
The third issue concerns whether the
plaintiff abandoned his application for bail on the basis of the
outstanding Midrand warrant.
This aspect too goes to his credibility
generally but also concerns the question whether there was a lawful
basis to justify his
continued detention after his first appearance
in court. His claimed nescience even of the existence of the warrant
is so obviously
at odds with what the criminal court record
indicates, yet he equivocated in condemning the record out of hand as
not being a true
representation of those proceedings. He also claimed
not to have been told upon his arrest that the existence of the
Midrand warrant,
or the fact at least that he was listed on the SAPS
circulation system as a wanted person since 2012, constituted one of
the reasons
for being detained, which flies in the face of what the
SAP14A notice self-evidently records. In these respects, it is just
so
inherently improbable that the plaintiff could have been
blissfully ignorant of the warrant’s existence or its impact.
The
ineluctable inference to be drawn from his absolute rejection of
any knowledge of either is that he hoped to make capital of his

complaint that he had unreasonably been denied bail and that the
defendants had had no justification in prolonging his detention
after
his first appearance in court on the bases upon which they claim his
fate was determined.
[104]
The investigation diary, the SAPS
circulation enquiry report, and the relevant Notice of Rights plainly
speak for themselves and
provide an objective reference point. The
docket and court record also evince on their own how the plaintiff
was dealt with as
a detainee and accused. The plaintiff not having
suggested any basis to challenge their authenticity, they must in my
view be taken
to represent true and accurate records of the docket
and J15 respectively.
[105]
On
the subject of records and what they reveal, what was notably absent
in the present trial was a transcript of the trial proceedings
in the
criminal court which one would have expected the plaintiff to have
provided in order to prove the malicious prosecution
contended for. A
transcript may also have provided a point of reference to compare
what the plaintiff says happened (and what he
claims he told the
magistrate) and what Messrs. Benge and Williams alleged in their
testimony to the contrary. It might also have
indicated why the
magistrate was swayed to acquit the plaintiff on the fraud charge
although the verdict on its own provides no
proof of malice.
[22]
[106]
The
court record which the plaintiff did not seem intent on introducing
into evidence (despite the fact that this would obviously
have
provided the necessary insight into the question why bail was denied
to him until 28 March 2018) indicates that a transcript
was made
available whilst the criminal trial was underway, yet such a
transcript was conspicuous by its absence before this court.
It is
notable in my view that the plaintiff did not even discover the J15
and annexures and Mr. Mpakane placed it firmly on record
when he was
leading the plaintiff that the bail transcript was not going to be
entered into evidence.
[23]
This is to my mind another demonstration of the plaintiff’s
chicanery or obfuscation of the real truth.
[107]
The object of the evidence placed before
this court by the first defendant was not to prove the plaintiff’s
guilt, but to
place into context what the charge against the
plaintiff was about and to justify that, as far as Sgt Fredericks was
concerned,
a reasonable suspicion existed when he arrested the
plaintiff that he had committed a Schedule 1 offence and, insofar as
the second
defendant is concerned, why an honest belief in his guilt
fell to be construed from all the evidence.
[108]
The foundation of the plaintiff’s
defence to the criminal charge of fraud is that Mr. Williams
embarrassed him by not paying
Mr. Benge (who he claimed he had never
met before the installation) so it is fatal in my view that this was
never put to Mr. Williams
when he testified, neither any proposition
to the effect that the fraud charge against him must then have been
entirely trumped
up. (If it were so on the plaintiff’s version
that he had had no dealings with Mr. Benge before the transaction
then self-evidently
this would mean that the latter fabricated the
purported misrepresentation on his part and that the charge had to be
contrived.)
One would have expected some engagement with Mr. Williams
when he testified about the charge being false on this basis, but
instead
it was opportunistically suggested to him that since the
plaintiff had met his obligations to
him
,
it was more natural to treat the absence of the plaintiff’s
payment in all the circumstances as a debt owing which could
be
recovered pursuant to civil processes rather than justifying it as a
criminal deception.
[109]
I indicated above that strangely the
plaintiff appeared to accept, before Mr. Williams had adduced his
testimony, that he must have
owed the complainant something, but the
reason given for his resignation in this respect had its basis in the
fact, according to
him, that Mr. Benge had threatened him and his
children. This was more reason than anything to say to the police
when he was arrested
that Mr. Benge was unlawfully purporting to
extort money from him under the guise that he has misrepresented that
he would pay
him R85 000,00 but instead he kept his silence. It was
also necessary in my view, if the plaintiff hoped that this court
would
believe him, that Mr. Benge should have been challenged under
cross examination in this critical respect. The plaintiff’s

failure to have done so is to my mind another indication that his
version of the events preceding the arrest is a concoction which
he
hoped to pass off to this court as a basis to say that there was
never a reasonable or probable basis to have charged him at
all.
[110]
The
plaintiff simply failed to impress this court as a reliable witness.
He had the gumption to assert in this court too, contrary
to what is
clearly indicated by his SAPS69 records, that he has no previous
convictions, a misrepresentation first made to the
magistrate who
granted him bail.
[24]
[111]
The plaintiff adapted his testimony as the
matter went along and similarly developed hypotheses that were
different than when the
case started. For example, Mr. Mpakane from
the bar and in his closing, argument proposed a theory of a collusion
between Mr. Fredericks
and Mr. Louw arguing that they “deliberately
made sure that the plaintiff is arrested for no good reason”
whereas such
as a case was neither pleaded nor put to the first
defendants’ witnesses when they testified.
[112]
Indeed,
several features of the plaintiff’s exaggerated case were not
put to any of the witnesses to crucially afford them
an opportunity
to counter the plaintiff’s version of the relevant facts,
especially Mr. Benge concerning the supposed threats
he made to
him.
[25]
[113]
He spared no drama in asserting that he had
been handcuffed and arrested at home and had been seen by neighbours
living on his circle
getting into the police van. This was in
contradiction to his evidence in chief that he was in fact only
arrested at the police
station as testified to by Sgt Fredericks,
which on its own would have rendered his claim to have been cuffed
entirely implausible
because there would have been no need to have
restrained him at all. Not only did he go back on his own testimony
given in chief,
but he opportunistically resorted to argue in the end
instead that his arrest at home had to be inferred from the moment
when he
was handcuffed and placed in the back of the van.
[114]
He failed to call his aunt to vouch for him
despite confirming her availability to testify. She was the person
who he suggested
would support his version that he had been
unceremoniously handcuffed and arrested at home without regard to his
rights as a suspect
and a detainee and forced into the van. (She
would also have been able to shed some light on whether he hid from
Messrs. Benge
and Louw and regarding Mr. Benge’s prior
interaction with her to trace him.) The several persons on the circle
where he lives
who allegedly saw him being manhandled and forced into
the van might also have given credence to his implausible version
that his
rights were so egregiously violated. The absence of such
testimony however points ineluctably to the conclusion that they
would
not support his case.
[115]
The defendants’ witnesses to the
contrary made a favourable impression upon this court. Mr. Fredericks
especially impressed
me as an honest witness who did not hesitate to
make concessions that were unfavourable to him. His account was
further quite plausible,
corroborated by Mr Benge’s testimony
regarding the circumstances of his arrest, and supported by the
objective evidence.
[116]
I am inclined to agree with Mr. Cole’s
submission that the plaintiff cannot be believed on any issue of fact
where he is contradicted
by another witness testifying to another
version.
The arrest claim:
[117]
I turn to the question whether Sgt
Frederick’s suspicion was reasonable. The onus in this regard
rests on the first defendant
to establish the statutory justification
impliedly relied upon.
[118]
The
test whether a suspicion is reasonably entertained within the meaning
of s 40 (1)(b) of the CPA is objective.
[26]
In this instance, would a reasonable man in his position and
possessed of the same information have considered that there were

good and sufficient grounds for suspecting that the plaintiff had
committed fraud, a Schedule 1 offence.
[27]
[119]
In
Mabona and Another v Minister of Law and Order and Others
[28]
the court expounded upon the expectation of such a reasonable man
effecting an arrest without a warrant.
“
It
seems to me that in evaluating his information a reasonable man would
bear in mind that the section authorizes drastic police
action. It
authorizes an arrest on the strength of a suspicion and without the
need to swear out a warrant, i.e. something which
otherwise would be
an invasion of private rights and personal liberty.
The
reasonable man will therefore analyze and assess the quality of the
information at his disposal critically, and he will not
accept it
lightly without checking it where it can be checked. It is only after
an examination of this kind that he will allow
himself to entertain a
suspicion which will justify an arrest.”
(Emphasis
added)
[120]
The court went on to state what the
threshold of such an examination is:
“
This
is not to say that the information at his disposal must be of a
sufficiently high quality and cogency to engender in him a
conviction
that the suspect is in fact guilty. The section requires suspicion
but not certainty. However, the suspicion must be
based upon solid
grounds. Otherwise, it will be flighty or arbitrary, and not a
reasonable suspicion.”
[121]
Indeed,
in Duncan v Minister of Law and Order
[29]
the court found that the word “suspicion” implied an
absence of certainty or adequate proof.
[122]
There is no question that Sgt Fredericks
formed his own suspicion. Despite the criticism that he responded to
the call of an outsider
(Mr. Louw) who he happened to know as a prior
colleague, he called the officer indicated by him as the
investigating officer. Mr.
Mpakane’s challenge that something
was amiss in this because the docket reflected Cst. Mtanda as the
assigned investigating
officer was not put to Sgt Fredericks to deal
with in cross examination, but he says this is the person he called
and who happened
to be at the station at the time to check what the
police had on the plaintiff. As it transpired, what Sgt Fredericks
says he was
told effortlessly aligns with what is in the docket and
what the SAPS circulation system confirmed at the time. It might have
caused
concern if Mr. Louw had known about the Midrand warrant
before, but it appears that he had no knowledge of it, neither Mr.
Benge.
It was, just as I suggested above, an unlucky co-incidence for
the plaintiff that the SAPS intel system revealed an added fact about

the plaintiff that Sgt Fredericks was obliged to keep in mind in
responding to the complaint.
[123]
It is plain that when he arrived at [....]
N[....] Crescent, Sgt. Fredericks cautiously adopted police protocol
by explaining who
he was and asking for identification. He called
Cst. Ngqwazana again in the presence of the plaintiff and spoke with
him over the
speaker phone (I assume for the benefit of the plaintiff
which those alleged to be present, including his aunt according to
the
testimony of Mr. Benge ought to have heard) once he had the
identify card of the plaintiff available and was able to glean his
particulars. Even then he did not leap in and make the arrest
although the complainant and an ex-colleague were present and from

their perspective must have been keen to ensure that the plaintiff
did not evade capture. The wanted person enquiry report reveal
on the
SAPS circulation system seems to have been entirely unexpected.
[124]
He explained to the plaintiff what needed
to happen at the police station but also warned him that from what he
knew he might be
arrested so should leave his personal belongings
behind at home. It is unfortunate, as he explained, that he
transported the plaintiff
in the back of the police van (but he was
not restrained, neither under arrest at the time) but delayed his
decision to arrest
until he was able to see for himself and verify
the information at his disposal at the police station which was a
mere ten minutes
away.
[125]
When he arrived there, he was able to
confirm that the plaintiff was a wanted person since 2012, an
objective fact appearing from
the police system which the defendant’s
witnesses all confirmed as an accurate source. He also spoke to Cst
Ngqwazana and
personally read the complainant’s statement in
the docket which confirmed to him that an offence of fraud had been
committed.
This is a known schedule 1 offence. Indeed, the impression
he formed from Mr Benge’s statement was not merely a
prima
facie
view that he had committed the
offence, but, as far as he was concerned, a positive, definite one.
This is not surprising since
an independent read of the complainant’s
A1 statement suggests all the elements of the offence of fraud. The
docket further
confirmed to him that the plaintiff had been evading
detection and arrest on the fraud charge for a while, coupled with
the indication
on the SAPS circulation system that he was wanted as a
fugitive from justice and had been on the lam since 2012.
[126]
There was much criticism from Mr. Mpakane
that there was no obvious indication that the matter had progressed
from a request for
police investigation from Mr. Benge to a case
ready for prosecution. Apart from the fact that almost every A1
statement deposed
by a police officer in this country concludes with
such an expression consonant with a complainant’s desire to
commence a
criminal prosecution, it is obvious that the A1 statement
read with the supporting documentation objectively makes out a
complete
case of fraud replete with the classic elements of the
offence. The missing puzzle was the whereabouts of the plaintiff who
had
now been found. It is not a co-incidence that the second
defendant’s prosecutors similarly found all that was needed in
the
pages of the docket to conclude the same fact, namely that there
was a reasonable indication that the plaintiff had committed fraud

and that there was a reasonable prospect that he would be convicted
of such offence.
[127]
Mr. Benge was also co-incidentally on hand
and his presence and willingness to pursue a prosecution self-evident
from his personal
pursuit of the plaintiff through the agency of a
private investigator, the summonsing of the police to the plaintiff’s
home,
and his abiding presence at the station afterwards.
[128]
Was it essential for Sgt Fredericks to have
detained the plaintiff for the offence?
[129]
The answer to that question obviously
firstly lay in the history of the matter that the plaintiff had
skedaddled and had gone into
hiding, necessitating the complainant to
have engaged the services of a private investigator. Secondly, the
enquiry report indicated
that he was wanted by the police for the
outstanding Midrand warrant. It would have been entirely counter
intuitive for Sgt Fredericks
under these circumstances and for that
moment to have released him under his own recognizances. It was
correct for him to have
left it up to the court to decide. He
explained convincingly why he felt constrained to detain the
plaintiff for then, even if
the investigating officer chose to
release him later on.
[130]
In
a rationality enquiry, the critical enquiry, as suggested by the
Supreme Court of Appeal in Minister of Safety and Security v
Sekhoto
and another,
[30]
should not be
focused on the manner of the arrest but rather the
rationale
for the arrest. The court made this clear when it remarked upon the
limited role of the peace officer in the process of making
an arrest
as follows:
“
While
the purpose of arrest is to bring the suspect to trial the arrestor
has a limited role in that process. He or she is not called
upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or, in some cases a
senior officer).
The purpose of the arrest is no more than to bring the suspect before
the court (or the senior officer) so as
to enable that role to be
performed. It seems to me to follow that the enquiry to be made by
the peace officer is not how best
to bring the suspect to trial: the
enquiry is only whether the case is one in which that decision ought
properly to be made by
a court (or the senior officer). Whether his
decision on that question is rational naturally depends upon the
particular facts
but it is clear that in cases of serious crime –
and those listed in Schedule 1 are serious, not only because the
Legislature
thought so – a peace officer could seldom be
criticized for arresting a suspect for that purpose.”
[31]
[131]
As
in Sekhoto
,
the opinion was formed in the present matter concerning the serious
offence of fraud (co-incidentally involving a considerable
sum of
money) and one in respect of which the legislature has deemed it
proportional to arrest without a warrant.
[32]
Therefore the mere nature of the offence justified the arrest of the
plaintiff for purposes of bringing him to justice.
[132]
Mr. Mpakane suggested that a proper
“investigation” of the matter by Sgt Fredericks would
have revealed that the debt
at the core of the alleged criminal
deception could be recovered by civil process (as was endorsed in the
docket by the supervising
officer after the plaintiff was acquitted)
but Mr. Benge was not bound by such election especially against the
background indicated
by him in his statement that the plaintiff was
ducking and diving and could not be trusted to keep his word.
[133]
In any event the nature of the offence on
its own and the reasonable indication in the docket of a criminal
deception (even if the
elements of debt are established thereby)
warranted the arrest.
[134]
In my view therefore there was nothing
flighty or arbitrary about Sgt. Frederick’s suspicion. He
methodically and painstakingly
went through all the processes before
making the decision to arrest.
[135]
In the result I conclude that he
entertained a reasonable suspicion that the plaintiff had committed
the offence of fraud, which
justified his arrest of the plaintiff
without a warrant under all the circumstances.
The
other legality challenges:
[136]
Having accepted the first defendant’s
version of the events, I find nothing to suggest any constitutional
breach that taints
the validity of the arrest.
[137]
Sgt. Fredericks gave a proper account of
his actions. He meticulously and sensitively took the steps that he
did; there was no disregard
of the plaintiff’s constitutional
rights; and no proven breach of any Police Standing Order. The arrest
(and by implication
the detention after the plaintiff’s first
appearance) was rationally justified and additionally necessary by
reason of that
fact that he was wanted on the SAPS circulation
system.
[138]
Sgt.
Fredericks was not obliged in the unique circumstances to consider a
less invasive means of bringing the plaintiff to justice
and in this
respect, I consequently find no overreach. Peace officers are
entitled to exercise their discretion as they see fit
as long as they
stay within the bounds of good faith and rationality. Indeed, the
standard is not breached because an officer exercises
the discretion
in a manner other than that deemed optional by the court.
[33]
[139]
The plaintiff’s suggestion that the
police did not follow up on his explanation simply falls to be
rejected as having no basis.
He chose not to give any exculpatory
statement. As it turned out, he offered no demur either at his home
or at the police station.
If there ever was a moment to complain that
he didn’t owe Mr. Benge any money at all or that he had been
threatened by him,
this negating the premise of any criminal
misrepresentation at all, the plaintiff should have offered an
exculpatory explanation,
but it is common cause that he did not.
[140]
I
add that there is by parity of reasoning in my judgment above no
reason to find that the plaintiff’s continued detention
after
his first court appearance was unlawful. The first defendant’s
implied defence, consistent with the evidence adduced
by the
defendant parties, is that since the plaintiff’s arrest was
lawfully justified in the first place, it followed that
his ensuing
detention was therefore also lawful.
[34]
[141]
Concerning the first defendant’s
stance adopted in the bail proceedings there appears to have been
good and solid reasons
to oppose bail on the basis of the fraud
charge in respect of which his conviction was reasonably anticipated,
the fact that he
had evaded detention and remained at large and, most
importantly, that he was flagged on the SAPS circulation system to
have been
a wanted person since 2012.
[142]
It
appears by all accounts that Cst. Mtanda responsibly informed the
magistrate ultimately that he could no longer in earnest oppose
bail
once he realized that the co-operation of the Midrand police was not
forthcoming. Mr. Mpakane argued that the delay on the
part of the
Midrand police could not just be obliterated from the equation
because the cited first defendant would include the
officers in
Midrand, but this was certainly not the plaintiff’s pleaded
case that the defendants were required to meet. (It
is a trite
principle that the onus on the first defendant to respond to a
legality challenge can only arise “after the issue
itself has
arisen” on the pleadings.)
[35]
[143]
In any event it could hardly have been the
plaintiff’s case that the fact of the Midrand warrant caused
him any trouble at
all because he flat out distanced himself from any
knowledge of its existence until after his release on bail.
[144]
Not surprisingly however this did not stop
the plaintiff from making capital of the fact that once a basis to
oppose was taken off
the table by Cst. Mtanda he was in fact then
released on bail, as if to suggest that there had been no lawful
basis for his continued
detention before that moment. In reality
however he was dishonest in not disclosing his prior convictions, one
of which would have
resulted in the offence with which he had been
charged being elevated to a schedule 5 offence for bail purposes.
[145]
There
is the further fact that the question concerning whether the
plaintiff was entitled to be released on bail was out of Cst.

Mtanda’s hands so to speak. This is demonstrated by the fact
that even though he and the prosecutor withdrew their opposition
to
bail, the magistrate was not convinced that the plaintiff’s
position was assisted by such a concession.
[36]
[146]
The
plaintiff would obviously only have been entitled to be released if
the interests of justice permitted it, and obviously the
prevailing
circumstances did not mitigate for him at that juncture.
[37]
That is however not something to have laid at the door of the
defendants. The plaintiff was the author of his own misfortune.
The claim for
malicious prosecution:
[147]
The
plaintiff bore the onus resting on him in respect of this claim to
allege and prove that the defendants instigated the proceedings;
that
in doing so they had no reasonable and probable cause; that they
acted
animo
injuriandi
,
and that the prosecution failed.
[38]
The first and last of these elements brook no contention although as
stated above the fact of the acquittal gives the plaintiff
no arrow
in his quiver that on its own proves malice.
[148]
Reasonable
and probable cause in the context of this claim means “
an
honest belief found on reasonable grounds that the institution of
proceedings is justified
”.
The concept involves a subjective and an objective component.
[39]
[149]
Where
reasonable and probable grounds for an arrest or prosecution exists
the conduct of the defendant instigating it is not wrongful.
[40]
[150]
In respect of this element, I am
constrained to find in favour of the defendants that reasonable
grounds existed to prosecute the
plaintiff on the basis of what is
indicated in the docket, supported by the related documentation, and
buttressed by consultations
with Mr Benge, regarding the commission
by him of the offence of fraud.
[151]
Both
Ms. Totyi and Ms. Fourie gave a good professional account of
themselves and cogently justified a reasonable and probable cause
for
the plaintiff’s prosecution. The institutional machinery I
alluded to above was not challenged in any way, yet Mr. Mpakane

argued in closing that their overview of the handling of the
prosecution by the relevant NPA staff constituted hearsay evidence

which fell to be rejected. This too was nothing short of
opportunistic and a misconception as to who bears the onus in respect

of this claim. It would be outrageous to expect each person involved
in the cog to give a personal account of what opinion he or
she
entertained along the way especially where the reasonable cause
speaks for itself from an objective assessment of the documentation

that was before the NPA staff at each juncture. The plaintiff can
hardly wish away what was contained in the docket. It was not
the
duty of the staff to establish whether he had a defence, but whether
there was indeed a reasonable and probable cause for the

prosecution.
[41]
Having regard
to the NPA’s processes and statutory obligations it is fair,
against the objective background, to conclude
that the opinion was
formed and maintained up until the criminal trial that there was an
honest belief entertained by one and all
that there was a reasonable
and probable cause for the prosecution and that nothing had occurred
along the trajectory to have warranted
a deviation from the original
decision to enroll the matter and prosecute the charge to its normal
end.
[152]
As
for the third element, the contemporary approach is that although the
expression “
malice
”
is used, the remedy in a claim for malicious prosecution lies under
the
actio
injuriarum
and what has to be proved is
animus
injuriandi
,
[42]
that is “not necessarily personal spite and ill-will, but any
improper and indirect motive.”
[43]
Absolutely none was suggested to the NPA’s witnesses. Indeed it
is hard to imagine against the objective evidence of what
the A1
statement and related documents foreshadowed that the NPA staff would
not have enrolled and prosecuted the fraud charge
or that they should
have had any misgivings in the plaintiff’s guilt.
[44]
They were simply not shown not to have believed in his guilt which
would have disproved the existence for them of reasonable and

probable cause.
[153]
The plaintiff’s suggestion as to what
transpired in the criminal trial is so improbable as to be rejected
out of hand and
nothing but a red herring.
[154]
In the result I am not satisfied that the
plaintiff has met the burden on him to prove his claim for malicious
prosecution. With
hindsight the second defendant’s application
for absolution in respect of this claim ought to have been
successful, but the
court record that was placed before this court by
agreement between the parties required to be explained and given a
proper context.
[155]
In the premises I issue the following
order:
1.
The plaintiff’s claims are dismissed
with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:

22 February 2022
DATE OF
JUDGMENT:
8 September 2022
APPEARANCES
:
For
the plaintiff: Mr. S Mpakane instructed by T Matu Attorneys care of
Phillip & Mabona Attorneys, East London (ref. Mr. Matu).
For
the first defendant: Mr. S Cole instructed by Frans Attorneys, East
London (ref. Mr. Maritz).
For
the second defendant: Ms. L Brauns instructed by The State Attorney,
East London (ref. Mr. Isaacs).
[1]
A
single plea was filed on behalf of both defendants by the State
Attorney. Closer to trial the second defendant appointed its
own
legal representative and conducted its defence separately from the
first defendant.
[2]
It
became clearer during cross examination that one of these two men
was the complainant himself, Mr. David Benge, and the other
a
private investigator, Mr. Louw, although the plaintiff did not refer
to the latter by his name at all.
[3]
The plaintiff spontaneously related that he was told he was being
arrested at the police station, but later sought to make out
a
different case that he had rather been arrested earlier at his home.
He also suggested that the telling was done by someone
different
than one of the two officers who came to his home.
[4]
He
appeared to confuse the investigation officer with the officer who
he says arrested him.
[5]
The plaintiff created the impression that this charge had come out
of the blue and that he was surprised by the allegations of
fraud
and even by the mere suggestion that Mr. Benge had claimed he owed
him R85 000,00.
[6]
Under cross examination he relented that he knew Mr. Benge and had
in fact met him. He was resolute however that this was only
after
the aircon installation and not before.
[7]
What he failed to disclose in this regard further, according to the
bail transcript that was put up by the defendants, is that
the
magistrate recorded (a) that the defence had informed the court that
he had no previous convictions (he was obliged to concede
in this
court under cross examination by Ms. Brauns who appeared on behalf
of the second defendant that he in fact had two) and
(b) that his
attorney had submitted that the investigating officer had caused
delays and had filed a statement to the effect
that he was not
opposed to bail. All the indications were however that there had
until then been good reason, in the existence
of the Midrand
warrant, to oppose bail but once the police from Midrand were not
forthcoming in cooperating, and the investigating
officer and
prosecutor had correctly relented on this ground, his chances of
being released on bail (on the assumption that he
indeed had no
previous convictions) were substantially improved.
[8]
The
parties were agreed that this was the verdict given upon the
plaintiff’s guilt. No judgment was however produced in
the
present trial.
[9]
His
reference to such a meeting as a progress payment meeting on his
version is bizarre, especially since he maintained that he
owed
nothing to anyone at this stage.
[10]
Evidently he, or rather the company through which he conducted his
business, Ikhona-Nayo. was paid on 24 July 2017 in the sum
of
R175 862.78. This appears from a payment advice that served as
exhibit A5 before the criminal court.
[11]
He stated in this regard that: “I believe I would not have
seen it because what the private investigator and Dave (Mr.
Benge)
were doing, they wanted to take my pictures.”
[12]
Upon
being asked by the court to account for the private investigator’s
presence at 22 Nederberg Crescent, he explained
that the
investigator had related to him that the complainant had requested
him to investigate the matter privately since the
police had never
gotten back to him with any results or information. He had traced
the plaintiff himself using his own resources.
[13]
The
enquiry report was ostensibly generated on 11 January 2018 at 13h14.
It appears in the bundle marked Exhibit A at page 79.
[14]
Against the express objection of the plaintiff that the bench
warrant had not been discovered, it was not admitted into evidence.
[15]
The
parties to the litigation agreed that the docket be admitted as
evidence, without the requirement of formal proof, and that
it was
considered as true and correct save insofar as any document might be
expressly disputed. There was no suggestion that
any document in the
docket fell to be challenged.
[16]
Home
was noted in the first entry in the investigation diary to be at 22
Nederberg Crescent in Buffalo Flats, East London. Mr.
Benge
confirmed in his testimony later on that the plaintiff’s
address was known but that the plaintiff had made himself
scarce at
home. He related further that he had in fact visited the premises
and had asked the plaintiff’s aunt to call
him when he was
home, but evidently to no avail.
[17]
The parties agreed that the court record too be admitted into
evidence without the requirement of formal proof. The plaintiff

never really challenged its correctness.
[18]
The plaintiff’s SAP69 were generated on 24 January 2018 and
reflect two previous convictions. (See A8 in the docket). This

information obviously post-dated the Bail Information Form which is
dated 13 January 2018.
[19]
Schedule
5 refers to “an offence referred to in Schedule 1 – (a)
and the accused has previously been convicted of
an offence referred
to in Schedule 1”. The plaintiff had ostensibly been convicted
before of culpable homicide, an offence
which resorts under Schedule
1.
[20]
This
is the fraud case docket reference.
[21]
National
Employers General Insurance v Jagers
1984
(4) SA 437
(E) at 440 – 441
;
Stellenbosch Farmer’s Winery Group Ltd and Another v Martell
et Cie and Others
2003 (1) SA 11
(SCA) at 14 H – J.
[22]
The answer that suggests itself is that Mr. Williams did not testify
in the criminal court to refute the plaintiff’s accusation

(repeated in the civil trial) that he had purportedly failed to pay
over the monies paid to him to Mr. Benge. Mr. Williams was

unfortunately not drawn on whether he testified in the criminal
trial or not, but the docket reflects that he may have been
subpoenaed for court on 12 August 2019 for the defence case. Given
that he filed a statement on 15 July 2019 (A13) that supports
Mr.
Benge’s version rather than his own, it seems improbable that
the plaintiff would have persisted in calling him.
[23]
See Page 35 of the transcript of the plaintiff’s evidence. Mr.
Cole however interjected that the criminal record would
certainly be
placed before the court when he commenced his cross examination of
the plaintiff.
[24]
As
was noted by Ms. Fourie, if attention had been drawn to the true
state of affairs, it would have been extremely difficult for
the
plaintiff to have met the threshold posed by the provisions of
section 60
(11) (b) of the
Criminal Procedure Act to
secure his
release on bail.
[25]
See
Small v Smith
1952 (3) SA 434
at 438 E – F.
[26]
Minister
of Safety and Security & Another v Swart
2012 (2) SA SACR 226 (SCA) at [20];
S
v Nel & Another
1980 (4) SA 28
(E) at 33H.
[27]
R
v Van Heerden
1958 (3) SA 150
(T) at 152;
S
v Reabow
2007 (2) SACR 292
(E) at 297 c – e.
[28]
1988
(2) SA 654 (E).
[29]
1984
(3) SA 560 (T).
[30]
2011
(5) SA 367 (SCA).
[31]
Sekhoto
Supra
at para [44].
[32]
As was stated in Sekhoto at para [25] it can hardly be suggested
that an arrest under the circumstances set out in
section 40
(1) (b)
of the CPA would amount to a deprivation of freedom which is
arbitrary or without just cause in conflict with the Bill
of Rights.
[33]
Sekhoto
Supra
at par [39].
[34]
See
Section
39(3)
of the CPA which sets out the general legal consequences of an
arrest, although it follows axiomatically that any subsequent

detention which is not sanctioned by the CPA cannot be legalized by
section 39(3).
It is however for a plaintiff to allege and prove why
he or she contends that the detention is not sanctioned by the CPA
thereby
rendering it unlawful. See
Jacobs
v Minister of Safety and Security
(CA
327/2012) [2013] ZAECGHC 95 (23 September 2013) at para [40]. There
was no pertinent case made out by the plaintiff in this
respect that
the defendants were required to meet.
[35]
See
Minister
of Safety and Security v Slabbert
[2010] 2 All 474 (SCA) at [20] – [21].
[36]
See par [94] above.
[37]
Section
35 (1)(f) of the Constitution.
[38]
Minister
of Justice and Constitutional Development v Moleko
2008
(3) SA 47
(SCA) at par 8;
Rudolph
& others v Minister of Safety and Security & another
2009(5) SA 94 (SCA) at par 16;
Minister
of Safety and Security NO v Schubach
[2014] ZASCA 216
at par 11. See also
Moaki
v Reckitt & Colman (Africa) Ltd
1968
(3) SA 98
(A
);
Relyant Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375.
[39]
Moleko
supra
at
53 C.
[40]
Relyant
Trading (Pty) Ltd, Supra,
at
382a.
[41]
Landman
& Others v Minister of Police
1975 (2) SA 155
€ at 156.
[42]
Rudolph
v Minister of Safety and Security
2008 (5) SA 94
SCA at par [18].
[43]
Fyne v African Reality Trust Ltd,
1906 E.D.C. 248
at 257.
[44]
Beckenstrater
v Rottcher and Theunissen
1995 (1) SA 129
(A) at 136A-B.