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[2021] ZAGPPHC 287
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Malebe-Themba and Another v Minister of Safety and Security and Others (58693/12) [2021] ZAGPPHC 287; 2021 (2) SACR 233 (GP) (10 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
CASE
NO: 58693/12
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SANDRA
MALEBE-THEMA
FIRST PLAINTIFF
DAPHNE
MOORGHIA-PILLAY
SECOND PLAINTIFF
and
THE
MINISTER OF SAFETY AND SECURITY
FIRST
DEFENDANT
BALAKRISHNA
NAIDU
SECOND
DEFENDANT
LIEUTENANT-GENERAL
KRUSE
THIRD
DEFENANT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 10 May 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
1.
An American financier once coined the phrase: ‘
No good deed
goes unpunished,’
and if ever there was a phrase more
appropriate to describe the trouble which has befallen the two
plaintiffs’ before this
court, it would be this phrase.
2.
In the present action the plaintiffs’ had instituted a
delictual damages claim, against the Minister of Safety and Security
and two of its employees for their unlawful arrest and detention,
which occurred on 11 May 2011 and their subsequent malicious
prosecution which followed.
3.
Pursuant to their arrest they were detained on the same day
and stood
trial until their discharge in terms of section 174 of the Criminal
Procedure Act, Act 51 of 1977.
4.
The facts in the present matter are largely common cause between
the
parties, save for the lawfulness or otherwise of the arrest, the
malicious prosecution and the quantum of damages to be awarded
to the
plaintiffs in the event of them being successful.
5.
In brief, their arrest occurred pursuant to the execution of
warrants
of arrest in relation to events which took place some two years prior
on 29 May 2009. At the time of their arrest the
plaintiffs were
employees and members of the South African Police Service (SAPS).
They were both arrested and detained on 11 May
2011 by members of the
SAPS on allegations of fraud. The first plaintiff was arrested at
about 11h40 whilst at home and the second
plaintiff was arrested
later the same day at about 12h00, whilst on duty. As such they were
arrested at places which were known
by the arresting officers and as
mentioned some two years after the alleged incident.
6.
Subsequent to their arrest, the plaintiffs were charged and
tried for
committing the offence of fraud. The specific allegations were that
they fraudulently used Police funds to hold a birthday
celebration
for the Police Divisional Commissioner, Khomotso Phahlane, on the
same day that a scheduled meeting was also arranged.
7.
At the
conclusion of their criminal trial, they were acquitted in terms of
the provisions of s 174 of the Criminal Procedure Act
[1]
(‘
the
CPA’
)
and as a result of their acquittal, they claim that their arrest,
detention and prosecution were unlawful and malicious.
DISPUTED ISSUES
8.
The issues that this Court was called upon to determine were
the
following:
8.1.1
Firstly, whether the plaintiffs’ arrest was lawful or unlawful;
8.1.2
secondly, if the Police are guilty of malicious prosecution of the
plaintiffs; and
8.1.3
thirdly, if any of the above are proven what would be an appropriate
quantum
for any of the proven damages suffered by the
plaintiffs.
8.1.4
In determining the above, this court as such had to make a finding
that the event on 29 May 2009 was indeed
a feedback session at the
end of term and not a birthday party, which happened to coincide with
the birthday of the Divisional
Commissioner JK Phahlane.
DEFENCES
9.To
the pleaded case the defendants denied that their actions were
unlawful and malicious, and that the plaintiffs have suffered
the
alleged damages. They rely on the following grounds for defending the
action:
9.1
Firstly, that the Police arrested the plaintiffs in execution of a
lawfully
issued warrant of arrest by the relevant authority (i.e. a
Magistrate). As such the arrest warrant had to be executed by them;
9.2
secondly, the prosecution of the plaintiffs was based on the advice
and at the
instance of the relevant authority that is legally
bestowed with the powers to conduct public prosecutions, i.e. the
National Director
for Public Prosecutions (‘
the NDPP’
).
They therefore, deny that they maliciously set the law in motion as
the decision to prosecute was taken by the prosecution, who
has not
been cited in these proceedings.
ONUS
10.
In the present matter the defendants carried the
onus
to prove
that the arrest of the plaintiffs was lawful. It is the case for the
defendants that the plaintiffs were lawfully arrested
in the lawful
execution of an arrest warrant that was legitimately issued by a
Magistrate.
11.
As far as the plaintiffs claim for malicious prosecution, the
plaintiffs carried such
onus
. In order to succeed in this
claim, they carried the
onus
to prove the following:
(a)
that the defendants set the law in motion-they instigated or
instituted
proceedings;
(b)
the defendants acted without reasonable and probable cause;
(c)
the defendants acted with malice and
(d)
that the
prosecution has failed.
[2]
EVIDENCE
PRESENTED BEFORE THE COURT
12.
General Phahlane gave evidence on behalf of the plaintiffs’.
At the time he was the Commanding Officer of
the first
plaintiff and also her friend whereas, the second plaintiff was his
personal assistant. He testified that at no time
did anybody ask his
opinion on the matter and in respect of the allegations against the
plaintiff’s and he further testified
that no internal
investigation was held that he knew of or that the he was a part of.
The witness also testified as to the quality
of characters of the
plaintiffs and confirmed that they both have never been accused of
any wrong doing in the SAPS, let alone
capable of the fraud that they
were accused of. During cross-examination, he conceded that he did
not know anything about the surprise
party which had been arranged by
them. Secondly, he conceded that the celebration did take place
during official hours. Furthermore,
that the Police brass band was
booked not for the alleged feedback meeting as scheduled, but for
playing a birthday song for him.
Furthermore, he conceded that it was
common cause that the only programme on the day was that for his
birthday, which had the police
logo and a picture of him, but that he
had no knowledge as to who had arranged for the programme.
13.
Both plaintiffs also testified before this court and their testimony
to a great extent had overlap as far as the circumstances
under which
the surprise birthday party was arranged by them to coincide with a
scheduled divisional feedback session. Both plaintiffs
also testified
as to the circumstances of their arrest and the time spent in the
cells until their ultimate release on their own
recognizance later
that evening at around 19h00 as the bail set could not be paid at
that time. The cross-examination did not seriously
challenge their
evidence placed before this court.
14.
On behalf of the defendants, Captain Christiaan Herbst gave evidence.
In short his testimony was the following. He is a member
of the South
African Police Service for the past 32 years, currently stationed at
the Head Office Police Academy and a member of
the Police brass band.
In relationship to the subject matter, he testified that an
application was directed for the band to perform
at a birthday
function on 29 May 2009 and that this birthday celebration was
arranged for Commissioner Phahlane. The booking was
recorded in their
books as is the procedure. This request was acceded to and on the day
in question they had performed at the function
between 08h00 and
10h00. He was unable to recall as to whether any meeting was also
scheduled for the same day. As per the specific
request like any
other, the band performed and remained present at the venue until all
the high-ranking officials had left. During
his attendance that
morning, he had not observed that any meeting had also taken place.
15.
The second defendant Balakrishna Naidu (“
Naidu”
)
also testified before this court. It was his testimony that he is a
former and now retired member of South African Police Service,
and
held the rank of Colonel stationed at Organized Crime Unit in
Pietermaritzburg. On 10 October 2010 he was appointed by then
Lt
General Dramat, to investigate the complaint of fraud concerning
members of the SAPS who had organised a birthday celebration
for
General Phahlane using state funds. Upon such appointment he was
informed that this birthday party was held during office hours.
He
gave evidence that not only was he the investigating officer but that
he also carried out the arrest in respect of the two plaintiffs.
Prior to being appointed to investigate the case, the plaintiffs were
unknown to him. During his investigation, and in the process
of
interviewing a number of witnesses, he established, that the second
plaintiff applied for funds to be used towards catering
for a
feedback meeting which was to be held on 29 May 2009. Instead
however, what was to be a formal meeting, turned out to be
a birthday
celebration for Commissioner Phalane. To confirm that the event was
indeed a birthday celebration, he referred to an
e-mail dispatched by
the second plaintiff
[3]
addressed
to Captain Roberts inviting him and other officers to the celebration
of the Divisional Commissioner’s birthday
celebration scheduled
for 29 May 2009. The invitation is contrary to all allegations that
the plaintiffs had organised a feedback
meeting, as if it was, he
testified that minutes would have been recorded of the meeting, if
indeed a meeting was held as per the
proposed agenda.
[4]
Upon his investigation having been concluded, he then proceeded to
place the matter before the Director of Public Prosecutions
and upon
a decision received from the Director of Public Prosecutions to
charge the plaintiffs’ with fraud, he then proceeded
to apply
for a warrant of arrest in respect of both of them. The said warrants
were authorised on 10 May 2011 and the following
day he carried out
these warrants. In the process of executing the warrants, the first
plaintiff was arrested at her house and
dressed in civilian clothes
when the arrest was carried out. During her arrest she was not
handcuffed and transported from her
residence in an unmarked police
vehicle. The second plaintiff however was at work and arrested whilst
in her uniform. She was requested
to remove her epaulettes and
allowed to change into civilian clothes as per her request before
they were both taken to court. She
too was also not handcuffed and
transported in an unmarked police vehicle. At the court their
fingerprints were taken, their details
entered into the registers and
thereafter they were placed inside the police cells until they were
eventually released later that
same evening on their own
recognisance.
ANALYSIS
16.
As mentioned
supra
,
the defendants carried the
onus
to prove the lawfulness of the arrest. Their pleaded case were that
the plaintiffs were lawfully arrested in accordance with warrants
of
arrest duly, authorised by the relevant authority and this after the
matter was thoroughly investigated and upon advise received
on the
prospect of conviction form the National Director of Public
Prosecutions.
[5]
17. In the present matter
it is common cause that Colonel Naidu was not only the investigating
officer, but also the arresting officer,
together with the third
defendant and that when an application was made for the authorisation
of warrants of arrest to be authorised,
that his statement under oath
was utilised for such warrants of arrest to be authorised.
18. In
casu
, no
evidence was placed before this court by the defendants, that the
attendance of the plaintiffs before a criminal court could
not have
been secured or obtained in any other manner other than for the
defendants to have applied for the authorisation of a
warrant to
secure their attendance before court.
19. It is common cause
that the arrest of the plaintiff’s were made some two years
after the ‘alleged’ transgression
and under circumstances
where at least one of them at the time was still in the employ of the
South African Police Service and
where both their addresses were
known to the police. If the purpose of an arrest, is to secure the
attendance of the plaintiffs’
before a court, no evidence was
placed before this court on behalf of the defendants, as to the
reasons why their attendance could
not have been secured, through a
drastic and invasive manner, such as through the issuing of a summons
to appear.
20. On the evidence
presented, the defendants have also not rebutted the evidence
presented by the plaintiffs that for the day in
question, the cake,
decorations and programme was not paid for out of the funds of the
first defendant and that the police brass
band had performed on the
29 May 2009. Further, that there was nothing untoward with this
request, as in the past, similar requests
had been directed to the
band and that they gladly assisted when so requested.
21. The day, as
mentioned, also happens to be the birthday of Commissioner Phahlane,
and it is the same day that a feedback session
was also scheduled and
an agenda prepared and circulated prior to such session.
22. It was also not
rebutted by the defendants, that for these types of meetings, and as
in the past, there always had been catering
arranged, in respect of
which prior application for funding was made. As such the benefit
derived from the catering on the day,
was by all the members present
at such gathering and employed by the first defendant and not per se
exclusively by only the two
plaintiffs before this court. It thus
begs the question that if the application for funding for the
catering was procedurally not
permissible, why authorisation for such
funding would have been approved.
23. The inescapable
conclusion to be made, is that for one or other nefarious reason, the
relationship between the plaintiffs and
Commissioner Phahlane, seems
to point to the real reason why the plaintiffs were targeted for
their noble actions and nothing else
and that no criminal conduct
could be attributed to their actions. As such it could come as no
surprise that the ensuing criminal
prosecution had failed.
24. On the unlawfulness
thus of the arrest, I therefore conclude that the defendants had
failed to establish on a balance of probability
that some
justification existed for the arrest of the plaintiffs and Colonel
Naidu having been the investigating officer, it must
have been his
complaint that resulted in the ensuing prosecution. On his own
evidence he had investigated the matter for almost
6 months, and thus
he had ample opportunity to do so and yet he failed to interview
Commissioner Phahlane and failed to have regard
to the internal
findings conducted and reduced in a report regarding the incident in
question as undertaken by the third defendant.
25. On his own evidence
he was unable to place before this court reasonable and probable
grounds to have instigated and initiated
the proceedings and his
failure to have regard to the findings of the internal report
prepared by the third defendant and to obtain
all possible evidence
on the matter from all potential witnesses, pointed to malice on his
part. It is common cause between the
parties, that the subsequent
prosecution was in the favour of the plaintiff. As such this
court is as a result thus satisfied
that the plaintiffs have
discharged their
onus
on a balance of probability to prove
malicious prosecution on the part of the defendants.
26.
In assessing the appropriate
quantum
to be awarded to the plaintiffs previous caselaw has alluded to
various factors which a court has to consider in determining an
appropriate award to be awarded to the plaintiffs. These factors
include the circumstances of the deprivation, the conduct of the
defendants, the social standing of the plaintiffs, the nature and
duration of deprivation of their freedom. Importantly, is that
each
case should be determined on its own merits and that previous caselaw
should only be used as a guide under the circumstances.
[6]
27.
In applying these factors to the matter at hand, both the plaintiffs
were prominent ranking members in the South African Police
Service.
At the time of their arrest the incident in question had occurred
some two years prior and as previously mentioned the
arrest of the
second plaintiff was carried out on a day that she was on duty. It
cannot be contended that the entire experience
had not been a
humiliating experience for both of them. Not only was the second
plaintiff required to remove her epaulettes on
the day that the
arrest was carried out, but she was in uniform and had asked to
change into civilian clothes in order to save
her the embarrassment
of appearing in court whist dressed in her uniform. Both plaintiffs
were arrested shortly before midday.
They were first taken to the
office of the National Inspectorate and detained and later only taken
to court. At the court they
were fingerprinted and thereafter placed
inside a police holding cell. Albeit that a significant low amount in
bail was set for
them, they were released on their own recognizance
prior to the bail money having been paid by them as the office where
the bail
money had to be paid, by then had closed.
28.
This entire experience must have been a traumatizing, humiliating and
embarrassing experience and for that they must be adequately
compensated for the offending conduct on the part of the defendants.
29.
The submission made by counsel for the defendant that the arrest was
carried out in a dignified manner, as none of the plaintiffs
were
handcuffed during the arrest and that they were taken to court
speedily, does not minimize the unsavoury experience of having
been
arrested.
30.
Having therefore regard to the totality of the
evidence presented before this court, and having considered
comparable awards having
been made in the past, I conclude to award
the plaintiffs’ the following respective awards:
a.
Claim for Malicious prosecution R 100 000 each;
b.
Claim for Unlawful Arrest and Detention R 50 000 each;
c.
Claim for legal fees expanded: R 19 850 (first plaintiff)
and R
22 000 (second plaintiff) respectively.
COSTS
31.
As the plaintiffs are the successful parties in these proceedings,
and in exercising my discretion, the costs should follow
the result.
ORDER
32. In the result the
following order is made:
32.1
The first second and third defendants, are ordered to pay the first
plaintiff jointly and severally the one paying the other
to be
absolved an amount of R 169, 850.00 together with interest at the
prescribe rate from 10 May 2021, to date of payment.
32.2
The first, second and third defendants, are ordered to pay the second
plaintiff jointly and severally the one paying the other
to be
absolved an amount of R 172, 100.00 together with interest at the
prescribe rate from 10 May 2021, to date of final payment.
32.3 The first, second
and third defendants are further ordered to pay the first and second
plaintiffs’ costs of suit, including
costs of counsel on a high
court party and party scale.
C.J.
COLLIS
JUDGE
OF THE HIGH COURT
Appearances
Counsel for the
Plaintiffs
: Adv. M. De
Meyer
Attorney for the
Plaintiffs
: De Meyer
Attorneys
Counsel for the
Defendants
: Adv. S. Mathabathe
Attorney for the
Defendants :
Office of the State Attorney:
Pretoria
Date of
Hearing
: 20-22 November 2019, 09-10
December
2020; 19 January 2021
Date
of Judgment
: 10 May 2021
Judgment
transmitted electronically.
[1]
Act
No. 51 of 1977.
[2]
Minister of Justice and Constitutional Development and Others v
Maleko
[2008] 3 All SA 47
(SCA) ,
2009 (2) SACR 585
(SCA).
[3]
Court
Bundle Volume 3 p 297-298.
[4]
Court Bundle of documents Volume 2 p 175.
[5]
Court Bundle Exhibit A para 12.2 and 15.2 Defendant’s Amended
Plea.
[6]
Minister
of Safety and Security v
Seymore
2007 (1) All SA 558
(SCA)