Rudolph and Others v Minister of Safety and Security and Others (380/2008) [2009] ZASCA 39; 2009 (5) SA 94 (SCA) ; 2009 (2) SACR 271 (SCA) ; [2009] 3 All SA 323 (SCA) (31 March 2009)

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[2009] ZASCA 39
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Rudolph and Others v Minister of Safety and Security and Others (380/2008) [2009] ZASCA 39; 2009 (5) SA 94 (SCA) ; 2009 (2) SACR 271 (SCA) ; [2009] 3 All SA 323 (SCA) (31 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 380/2008
PETRUS
JOHANNES RUDOLPH
….......................................................................
First Appellant
WENTZEL
LAUBSCHER
….......................................................................
Second Appellant
MARTHINUS
ANDRIES VAN DER WALT
….......................................................................
Third Appellant
and
THE MINISTER
OF SAFETY AND
SECURITY
….......................................................................
First
Respondent
THE MINISTER
OF CORRECTIONAL
SERVICES
….......................................................................
Second
Respondent
Neutral
citation:
Rudolph
v Minister of Safety and Security
(380/2008)
2009] ZASCA 39
(31 March 2009)
Coram:
Farlam,
Mthiyane, Brand, Lewis and Van Heerden JJA
Heard:
9
March 2009
Delivered:
31
March
2009
Summary: Claim
for damages ─ Arrests and detention of appellants unlawful as no
offence committed in the presence of peace officer
─ Prosecution of
appellants malicious ─ Requirement of ‘malice’ considered in
the context of
animus
injuriandi
held to have been met ─ Substantial damages awarded on appeal.
___________________________________________________________
ORDER
On appeal
from:
Transvaal
Provincial Division (Mokgoatlheng AJ sitting as court of first
instance)
1 The appeal
succeeds with costs, the costs to be paid by the first respondent.
The order of the court a quo is set aside and replaced
with the
following order:
‘
1. Judgment
is granted in favour of the first plaintiff as follows:
(a) (i) against
the first and second defendants jointly and severally, the one paying
the other to be absolved, for payment of damages
in the sum of R100
000 in respect of claim 1;
(ii) against the
first defendant for payment of damages in the sum of R50 000 in
respect of claim 2;
(iii) against
the first defendant for payment of damages in the sum of R50 000 in
respect of claim 3.
(b) Interest on
each of the above amounts will run at the prescribed rate
a
tempore
morae
(from 5 April 2007) to date of payment.
(c) The first
defendant is ordered to pay the costs of suit.
2. Judgment is
granted in favour of the second plaintiff as follows:
(a) (i) against
the first and second defendants jointly and severally, the one paying
the other to be absolved, for payment of damages
in the sum of R100
000 in respect of claim 1;
(ii) against the
first defendant for payment of damages in the sum of R50 000 in
respect of claim 2.
(b) Interest on
each of the above amounts will run at the prescribed rate
a
tempore
morae
(from 5 April 2007) to date of payment.
(c) The first
defendant is ordered to pay the costs of suit.’
___________________________________________________________
JUDGMENT
MTHIYANE and VAN
HEERDEN JJA (FARLAM, BRAND and LEWIS JJA concurring):
[1] This is an
appeal from a judgment of the Pretoria High Court (Mokgoatlheng AJ)
dismissing with costs three claims instituted
by the appellants
against the respondents, in which they claimed damages arising out of
their alleged unlawful arrest, detention
and malicious prosecution.
The appeal is with the leave of the trial judge.
[2] The first
claim arises out of the unlawful arrest of the first appellant on 18
July 2003 near Capital Park in Pretoria and the
subsequent unlawful
detention of both appellants. Both were taken to Pretoria Moot Police
Station (via Wonderboompoort Police Station)
and detained in a police
cell until 21 July 2003. On that day they appeared before a
magistrate where they were granted bail of
R500 each. Although a
member of the first appellant’s group, the second appellant was
apparently not arrested, as will be discussed
in more detail below.
[3] When the
appellants tendered payment of bail at the magistrate’s court on
the afternoon of Monday 21 July 2003, the prisoner’s
friend was not
available to receive bail money. The appellants were then removed to
the Pretoria Central Prison. At the prison
the appellants again
tendered payment of bail in vain; there, too, nobody was prepared to
receive payment of it.
[4] The
appellants remained in custody until the following day, viz Tuesday
22 July 2003, having been arrested on the previous Friday.
Although
their bail was paid at 08h30, they were only released at 12h00. They
were therefore detained from about 17h00 on the Friday
until
approximately midday on the Tuesday.
[5] After
several appearances in the magistrate’s court, the charge against
the appellants was withdrawn by the State in January
2004.
[6] The second
claim, for damages for malicious prosecution, is based on the fact
that the members of the South African Police Service
(SAPS) brought
false charges against the appellants, in that the former had neither
evidence, nor reason to believe, that the appellants
had committed
any offence; that they acted with ‘malice’, and that the charges
were subsequently withdrawn.
[7] The third
claim arises out of the first appellant’s arrest by Captain Ngobeni
near Rayton on 26 July 2003, on a charge of
sedition. The first
appellant was thereafter taken (via Cullinan Police Station) to
Mamelodi Police Station, where he was detained
in a police cell. On
28 July 2003 he appeared before a magistrate on a charge of
contravening the provisions of an administrator’s
notice in respect
of the unauthorised display of placards or flags next to a public
street.
[8] The arrests
and detention of the appellants are not in dispute. What is disputed
is the lawfulness or otherwise of these arrests
and detention. In
argument, counsel for the first respondent contended that, in
relation to the arrest of 18 July 2003 and subsequent
detention, an
offence was committed in the presence of one Captain Bekker. A
similar argument was advanced in respect of the arrest
and detention
of the first appellant by Captain Ngobeni on 26 July 2003.
[9] As to the
claim for damages arising out of the alleged malicious prosecution of
the appellants, the sole issue is whether the
appellants proved that
members of SAPS acted with ‘malice’.
[10] Captain
Bekker gave evidence for the first respondent in relation to the
events of 18 July 2003. She testified that, after
receiving a report,
she went to the Low Water Bridge in Capital Park where she found
eight persons: four adults and four children.
The first and second
appellants, the first appellant’s wife and Mr M A van der Walt
(nominally the third appellant, who did not
pursue his appeal before
us) formed the adult component of the group and the rest were
children. Upon arrival she informed them
that their assembly was an
unlawful gathering as they did not have the requisite permission to
hold it. The first appellant enquired
who she was and, after she had
identified herself, he gave her his full names, his ID number and the
name of the political organisation
of which he formed part. Captain
Bekker then asked if they had permission to hold the gathering and
when, none was produced, she
asked them to disperse. The first
respondent refused and maintained that they were in law entitled to
be there.
[11] Captain
Bekker then gave the group 15 minutes to disperse. The deadline came
and went and Captain Bekker was compelled to extend
it by a further
10 minutes. The extended time did not have the desired effect and, an
hour or so after the deadline, the first
appellant and his group were
still on the scene.
[12] After
consulting with a Captain Sithole and a SAPS legal adviser, one Mr
Nel, Captain Bekker arrested the first appellant for
contravening the
provisions of the Regulation of Gatherings Act 205 of 1993 (‘the
Gatherings Act’). As already indicated, the
second appellant was
also told to accompany the police to the police station, but it would
appear that he was not actually arrested.
He testified that he had
not been arrested, but had accompanied the police voluntarily.
Captain Bekker also said that she only
arrested the first appellant.
[13] The court
below accepted that the appellants had held an unlawful gathering in
contravention of the provisions of the Gatherings
Act in that they
did not have the required permission. The trial judge appears to have
accepted also that the arrest without a
warrant was effected in terms
of
s 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
1
In addition, the learned judge held that Captain Bekker was ‘not
unreasonable in entertaining a suspicion that a crime listed
in
Schedule 1 of the
Criminal Procedure Act was
being committed’. This
apparent reliance on
s 40(1)(b)
of the
Criminal Procedure Act
>
2
was clearly incorrect, in that a contravention of the Gathering Act
is
not
one of the offences listed in Schedule 1.
[14] The onus of
justifying the arrests and detention of the appellants lies upon the
first respondent. See
Zealand
v Minister of Justice and Constitutional Development
.
3
In concluding that the appellants had committed an offence, the court
below clearly erred. The first appellant and his group were
only
eight in number and the Gatherings Act proscribes an assembly of more
than 15 persons in a public place without permission.
The first
appellant and his small group did not constitute a ‘gathering’
within the meaning of that Act. In section 1, a ‘gathering’
is
defined as follows:
‘“
gathering”
means
any assembly, concourse or procession of more than 15 persons in or
on any public road as defined in the Road Traffic Act,
1989 (Act 29
of 1989), or any other public place or premises wholly or partly open
to the air . . .’.
There was
therefore no evidence of a ‘gathering’, no offence had been
committed in the presence of Captain Bekker, and the first
respondent
accordingly failed to discharge the onus of proving that the arrest
of the first appellant on 18 July 2003 without a
warrant and the
subsequent detention of both appellants in a police cell at the
Pretoria Moot Police Station were justified.
[15] As regards
the detention of the appellants at the Pretoria Central Prison
between the time of their arrival there in the late
afternoon of
Monday 21 July (at which time bail was tendered and should have been
accepted by the prison authorities), and the
release of the
appellants on bail the following day at about midday, counsel for the
respondents did not seriously contend that
this period of detention
could be justified. In our view, therefore, the second respondent
must be held liable for this period
of unlawful detention. Counsel
for the appellants submitted that, should this appeal succeed, both
respondents should be held liable
for the damages in respect of claim
1, but that the first respondent should be ordered to pay all the
costs. This submission was
not disputed by counsel for the
respondents and appears to be a practical one.
[16] We will now
deal with the appellants’ claim for damages for malicious
prosecution (claim 2). The requirements for successful
claims for
malicious prosecution have most recently been discussed in
Minister
of Justice & Constitutional Development v Moleko
4
as follows:
‘
In
order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove ─
that
the defendants set the law in motion (instigated or instituted the
proceedings);
that
the defendants acted without reasonable and probable cause;
(c) that
the defendants acted with “malice” (or
animo
injuriandi
);
and
that
the prosecution has failed.’
As already
indicated, in so far as this claim is concerned, requirements (a) (b)
and (d) above are not disputed by the respondents.
[17] Counsel for
the respondent was content to pin his colours to the mast solely in
respect of requirement (c), arguing in this
regard that it had not
been established that Captain Bekker had acted with malice. It was
submitted that, because Captain Bekker
had sought legal advice before
effecting an arrest, malicious prosecution had not been established.
[18] The
requirement of ‘malice’ has been the subject of discussion in a
number of cases in this court. The approach now adopted
by this court
is that, although the expression ‘malice’ is used, the claimant’s
remedy in a claim for malicious prosecution
lies under the
actio
injuriarum
and
that what has to be proved in this regard is
animus injuriandi.
See
Moaki v Reckitt & Colman (Africa) Ltd & another
5
and
Prinsloo & another v Newman
.
6
By way of further elaboration in
Moleko
it
was said:
‘
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as to
the consequences of
his or her conduct (
dolus
eventualis
).
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.’ (Para 64).
[19] The
respondent’s argument as set out in para 14 above is misconceived.
The ‘malice’ must be that of the person responsible
for
initiating the prosecution against the appellants. In this case, the
appellants were formally charged ─ with contravening
the Gatherings
Act ─ on Saturday 19 July 2003 by members of the SAPS at the
Pretoria Moot Police Station. It would appear that
this is the stage
at which the proceedings were initiated. Although Captain Bekker’s
police statement was made only on 18 August
2003, it is safe to
assume that the member of SAPS who charged the appellants did so on
the basis of the information furnished
to him or her by the arresting
officer, viz that there were only eight persons (four adults and four
children) gathered at the
scene of the supposed ‘illegal
gathering’. By no stretch of the imagination could this
‘demonstration’ be regarded as a
‘gathering’ within the
meaning of the Gatherings Act.
[20] In this
case, there can be no question that the person who charged the
appellants was aware of the fact that, by so doing,
the appellants
would in all probability be ‘injured’ and their dignity
(‘comprehending also . . . [their] good name and privacy’)
7
in all probability negatively affected.
8
Knowing that the ‘gathering’ in question comprised only eight
persons, the police member concerned must at the very least have

foreseen the possibility that no offence in terms of the Gatherings
Act had been committed and that, in charging the appellants
with a
contravention of that Act, he or she was acting wrongfully. He or she
nevertheless continued so to act, reckless as to the
possible
consequences of his or her conduct. In our view, he or she thus acted
animo
injuriandi
.
9
This being so, the appellants proved the requirements of malicious
prosecution and their claim in this regard should have succeeded.
[21] We turn to
the third claim based on the unlawful arrest of the first appellant
by Captain Ngobeni on 26 July 2003 and his subsequent
unlawful
detention. It is not disputed that the first appellant was arrested
for sedition on 26 July 2003. There was, however,
simply no evidence
that the first appellant had committed this offence.
[22] Captain
Ngobeni’s evidence was that, upon his arrival at the scene, he
found more than 100 people. They were carrying banners
with the words
‘Vryheid vir die Boerevolk’, ‘May 1902 women and children
killed’, ‘Stem vir die doodstraf’, ‘Mbeki
flies high while
hungry children die’ and ‘Democratic right to Freedom of speech,
no to police state’. The sentiments displayed
on the banners do not
by themselves suggest that the first appellant was advocating
unlawful insurrection. Captain Ngobeni’s
explanation as to what the
banners meant showed a complete lack of insight and can hardly be
accepted as having founded a reasonable
belief that the offence of
sedition was being committed.
[23] Another
shortcoming in Captain Ngobeni’s evidence is the extent to which it
is contradicted by his police statement. In that
statement he did not
mention that upon his arrival he found 100 persons on the scene. On
the contrary, he said that he noticed
‘two males standing next to
the banners and flags’ and that, when he told them to ‘stop and
pack their belongings’, they
‘refused by sitting down on their
chairs while some other members of the public [came] and signed some
documents on their tables’.
This version tied up with the evidence
given by the first appellant and is at variance with Captain
Ngobeni’s testimony during
the trial.
[24] Captain
Ngobeni’s evidence was that the purpose of the gathering was to
overthrow the government. On the contrary, the established
facts
indicate that what the appellant was involved in was no more than a
peaceful protest. He stood there collecting donations
from persons
who were supportive of his beliefs and policies. The petition that he
was asking people to sign stated that the person
signing supported
‘die Orde Boerevolk se poging om
deur
middel van onderhandeling
ons vryheid te verkry’ and further that, ‘in
die
proses van onderhandeling
,
ook in gesprek getree sal word met ander organisasies waarvan die
huidige Suid-Afrikaanse regering deel is of deel kan uitmaak’

(emphasis added in both instances). There was nothing seditious about
his conduct or utterances. It is probable that Captain Ngobeni
was
annoyed by his conduct or by the tone of the placards, but such is
the democratic society in which we find ourselves. It behoves
us to
be tolerant even of views which may seem unpalatable.
[25] The court
below found that Captain Ngobeni was justified in effecting the
arrest without a warrant. It bears noting that the
offence of
sedition is indeed one of the offences listed in Schedule 1 to the
Criminal Procedure Act. It
is not, however, at all clear whether the
trial court applied
s 40(1)(a)
or s 40(1)(b) of the Act (or both) in
coming to the conclusion that the arrest was lawful. As no offence of
sedition was committed,
s 40(1)(a) is clearly not applicable.
Moreover, as it can hardly be said that Captain Ngobeni
reasonably
suspected the first appellant of committing sedition, the arrest also
cannot be justified under s 40(1)(b). It follows that the
arrest was
unlawful and that the trial court was wrong in concluding otherwise.
[26] As regards
the quantum of damages, the first and second appellants claimed
payment of R100 000 each in respect of claim 1 and
R50 000 each in
respect of claim 2. The first appellant also claimed R100 000 in
respect of claim 3. Counsel for the respondent
did not contend that
the damages claimed were excessive. It needs to be pointed out at the
outset that the award of damages is
by no means an easy task. The
ever-changing value of money makes reference to previous decisions
not altogether helpful. As was
stated in
Minister
of Safety and Security v Seymour
,
10
in the assessment of general damages the facts of the particular case
must be looked at as a whole. There the court dealt with
the case of
a 63-year-old man who had been unlawfully arrested and detained for
five days. He was awarded damages in the amount
of R500 000 by the
trial court, but the award was reduced to R90 000 on appeal. This
court considered that the plaintiff had had
free access to his family
and doctor throughout his detention at the police station and that he
had suffered no degradation beyond
that inherent in being arrested
and detained. It also considered that, after the first 24 hours, the
plaintiff had spent the remainder
of his detention in a hospital bed
at a clinic and that, although the experience had been traumatic and
distressing, it warranted
no further medical attention after his
release.
[27] Although
the imprisonment of the appellants in the present matter was somewhat
shorter that that in the
Seymour
case (viz for four nights and three days), the humiliating conditions
to which they were subjected makes their case more serious
than that
of the plaintiff in
Seymour
.
The appellants were arrested and detained under extremely unhygienic
conditions in the Pretoria Moot police station. The cell
in which
they were held was not cleaned for the duration of their detention.
The blankets they were given were dirty and insect-ridden
and their
cell was infested with cockroaches. The shower was broken and they
were unable to wash. They had no access to drinking
water. Throughout
their detention the first appellant, who suffers from diabetes, was
without his medication. They were not allowe
to receive any visitors,
not even family members. The first appellant later wrote a letter to
the Commissioner of Police complaining
about the conditions of their
detention. As regards the last night of their detention, viz the
night spent in the Pretoria Central
Prison, there is no evidence
regarding the conditions under which they were detained. Both
appellants testified, however, that
their reputations had been
negatively affected by the detention ─ as the first appellant put
it, ‘in our country a jail bird
is a jail bird’ ─ and the first
appellant also stated that his illness had been aggravated by his
period of detention.
[28] After his
arrest on 26 July by Captain Ngobeni, the first appellant was taken
to Mamelodi police station and detained there
for two nights and one
full day (from about 18h00 on Saturday 26 July 2003 to about 08h00 on
Monday 28 July 2003). The conditions
were little better than at the
Pretoria Moot Police Station. He was made to sleep on a small coarse
mattress in a freezing cell
and was not even provided with a blanket
on the first night. It was only on the Sunday that his wife was
allowed to visit him and
bring him his medication and a sleeping bag.
[29] Counsel for
the respondent advanced no argument in respect of the amounts of
damages claimed. However, in our view, there can
be no doubt that the
indignity to which the appellants were subjected merits substantial
damages. For the arrest and detention
of the appellants in respect of
the first claim, we consider that an award of R100 000 each (as
claimed) would be appropriate.
Similarly, in respect of claim 2
(malicious prosecution), the amount of R50 000 damages claimed by
each appellant is appropriate.
As regards claim 3 (the second
unlawful arrest and detention of the first appellant), although the
conditions of detention were
most unsatisfactory, it would appear
that they were not as bad as in respect of the first claim. Moreover,
the period of detention
was considerably shorter. An appropriate
award in respect of the third claim is R50 000.
[30] In the
result the appeal succeeds with costs, the costs to be paid by the
first respondent. The order of the court below is
set aside and
replaced with the following order:
‘
1. Judgment
is granted in favour of the first plaintiff as follows:
(a) (i) against
the first and second defendants jointly and severally, the one paying
the other to be absolved, for payment of damages
in the sum of R100
000 in respect of claim 1;
(ii) against the
first defendant for payment of damages in the sum of R50 000 in
respect of claim 2;
(iii) against
the first defendant for payment of damages in the sum of R50 000 in
respect of claim 3.
(b) Interest on
each of the above amounts will run at the prescribed rate
a
tempore
morae
(from 5 April 2007) to date of payment.
(c) The first
defendant is ordered to pay the costs of suit.
2. Judgment is
granted in favour of the second plaintiff as follows:
(a) (i) against
the first and second defendants jointly and severally, the one paying
the other to be absolved, for payment of damages
in the sum of R100
000 in respect of claim 1;
(ii) against the
first defendant for payment of damages in the sum of R50 000 in
respect of claim 2.
(b) Interest on
each of the above amounts will run at the prescribed `rate
a
tempore
morae
(from 5 April 2007) to date of payment.
(c) The first
defendant is ordered to pay the costs of suit.’
____________________________
KK MTHIYANE
JUDGE
OF APPEAL
____________________________
BJ
VAN HEERDEN
JUDGE OF APPEAL
Appearances:
For Appellant: G
C Muller
M B
Matlejoane
Instructed
by:
Coetzer
Attorneys Pretoria
Azar &
Havenga Bloemfontein
For
Respondent: B R Tokota SC
K Mokotedi
Instructed
by:
The State
Attorney Pretoria
The State
Attorney Bloemfontein
1
Section
40(1)(a) reads as follows:
‘
(1)
A peace officer may without warrant arrest any person ─
(
a)
who commits or attempts to commit any offence in his presence’.
2
Section
40(1)(b) reads as follows:
‘
(1)
A peace officer may without warrant arrest any person ─
.
. .
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule1’.
3
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) paras 24 and 25.
4
[2008]
3 All SA 47
(SCA) para 8.
5
1968
(3) SA 98
(A) at 103G-104E.
6
1975 (1) SA 481
(A) at 492A-B.
7
Relyant
Trading (Pty) Ltd v Shongwe & another
(2007) 1 All SA 375
(SCA) para 5.
8
See
also the
Moleko
case para 65.
9
See the passage from the
Moleko
case para 64, quoted in para 17 above.
10
2006
(6) SA 320
(SCA) para 17.