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[2021] ZAGPPHC 418
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Phiri and Others v Minister of Police and Another (51660/2017; 51661/2017; 51663/2017) [2021] ZAGPPHC 418 (3 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 51660/2017
51661/2017
51663/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
3
JUNE 2021
In the matter between:
TSHEPO LUCAS
PHIRI
1
ST
PLAINTIFF
JOHANNES MESIA
PHIRI
2
ND
PLAINTIFF
RICHARD
BALOYI
3
RD
PLAINTIFF
And
MINISTER OF
POLICE
1
ST
DEFENDANT
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTION
2
ND
DEFENDANT
JUDGMENT
MUNZHELELE
A
Introduction
[1]
The first plaintiff, Tshepo Lucas Phiri is claiming damages against
the Minister of
Police arising from arrest and detention by the
Hartbeespoort dam police. The second and third plaintiffs, Johannes
Mesia Phiri,
Richard Baloyi instituted a claim for damages against
the Minister of Police and the National Director of Public
Prosecution arising
from their alleged unlawful arrest and detention
as well as malicious prosecution. At all material times, the police
and the prosecutor
were acting within the course and scope of their
employment when they arrested, detained, and prosecute all three
plaintiffs.
[2]
The crucial questions that call out for
answers are; was the arrest and detention of the first plaintiff
justified in the circumstances?
Secondly, was the arrest and
detention and prosecution of the second and third plaintiff based on
reasonable and justified grounds?
Did the second and third plaintiff
possess the unlicensed firearm and lastly, whether they possessed a
stolen motor vehicle?
Background facts of the
case
[3]
On 9 February 2017 at around 8 pm Mesia
Phiri and Baloyi Richard were arrested. During that night they had
worked overtime until
late in the evening at the chicken farm. Mesia
Phiri asked his brother Tshepo for a car to drive home. His brother
brought the
car and left. Mesia took the car and gave Richard a lift
because they stayed in the same area. Along the way, the police
stopped
them and instructed them to get out of the car and lie down.
They complied with the instructions of the police.
[4]
The police then started to search the car
and found a firearm inside the drawer of the driver’s seat.
Mesia explained to the
police that he did not know that there was a
firearm in the car. He further said that the firearm and the motor
vehicle belonging
to his brother Tshepo. They arrested and detained
them at
Hartebeespoort Dam police
station.
[5]
The police requested a backup. The backup
police went to look for Tshepo, they found him and interrogated him
regarding the firearm
and the motor vehicle which was found driven by
Mesia. He informed the police that the firearm and the motor vehicle
are his properties.
He even gave the police the firearm license and
the motor vehicle documents. They arrested and detained Tshepo for
negligent handling
of a firearm and possession of a stolen motor
vehicle.
[6]
All three were detained from Thursday and
only taken to court on Monday. Mesia and Richard were released on
Friday the 17
th
day
of February 2017 on R500 bail each. Their charge for possession of a
stolen motor vehicle was withdrawn. Because it was found
that the
motor vehicle was bought by Tshepo from Lenasia police station. The
charge for possession of an unlicensed firearm was
postponed waiting
for the ballistic results.
[7]
Tshepo Phiri pleaded guilty to negligent
handling of a firearm. Regarding the charge that his motor vehicle
was stolen, he explained
that he bought the motor vehicle from a
certain white man who had previously reported it to be stolen.
When the police recovered
it, this white man was no longer interested in using it. Then he sold
the vehicle to Tshepo. Unfortunately,
the police at Lenasia police
station did not remove the vehicle from circulation as stolen; it was
still registered as stolen.
He had all the papers for the motor
vehicle and he gave them to the police. At that time he had not yet
registered it into his
name.
[8]
Investigating officer, Gregory Kwadi
confirmed this explanation because he verified it and found it to be
correct. He requested
Lenasia police station to remove the motor
vehicle from the list of stolen motor vehicles. He further made the
court aware that
the firearm belongs to Tshepo Phiri and confirmed
that they were waiting for ballistic results to check if the firearm
was used
to commit an offense somewhere.
[9]
Nicolene Pretorius is employed by the
National Prosecuting Authority and was stationed at Brits Magistrate
as a prosecutor. She
testified that in the first appearance of the
plaintiffs she was the one who screened the docket and found that
there was a prima
facie case upon which the prosecution can proceed
on.
[10]
The defense called police officers Hemelton
Matlala and Kekana Thapelo David who testified that they were
employed by the South
African Police and stationed at Hartebeespoort
dam police station. On the 9
th
February 2017, they were on duty
patrolling around Broederstroom when the Plot Wag Neighborhood Watch
informed them that there was
a Polo VW silver in color with no
registration numbers driving around. They traced and found it at
Pelindaba Mexa, searched it,
and discovered that under the seat of
the driver there was a firearm. They checked the license disk of the
motor vehicle and found
it had expired. This motor vehicle did not
have plate numbers. The police officer phoned the station to check if
this was not a
stolen motor vehicle.
[11]
Indeed, they found it having been
registered as stolen at Lenasia Police Station. Because of this
information, the police decided
to arrest Mesia and Richard. A backup
was called and police officers Mabe and Mokgorotsi came and traced
Tshepo. They found him
and arrested him also for negligent handling
of a firearm because he was the owner of the firearm and the stolen
motor vehicle.
The police arrested all the plaintiffs without a
warrant of arrest.
Arguments by the parties
[12]
Advocate Maluleke on behalf of the first
plaintiff argued that the defendant bears the onus of proving that
the arrest was fair
and justified by the law. He referred the court
to a case of Minister of Law and Order and Others v Hurley and
Another
1986 (3) SA 568
(A) at 589 E-F where it was penned that:
“
It,
therefore, seems to be fair and just to require that the person who
arrested or caused the arrest of another person should bear
the onus
of proving that his action was justified in law.”
[13]
He further argued that Section 40(1) (e)
authorizes the Police to arrest without a warrant if they find the
suspect in possession
of the suspected stolen property. It is worth
mentioning that Plaintiff was not found in possession of the
so-called suspected
stolen property. Further that the offense which
Plaintiff was charged with is not a schedule 1 offense and therefore
an arrest
without a warrant is not justified under the circumstances.
[14]
He contended that the arresting officer who
effected the arrest does not even know what the Provisions of Section
40(1)(a) and (e)
are all about. The only conclusion which may be
drawn is that relying on the above sections was an afterthought in
that it does
not justify why Plaintiff was arrested. He further
contended that negligent handling of a firearm is not a serious
offense which
negated the refusal of bail; the Plaintiff was released
on a warning when he appeared before the court. In conclusion, he
submitted
that the Plaintiffs’ claim should succeed with costs.
[15]
Advocate Makola argued that the second
plaintiff and third plaintiff‘s claims should succeed with
costs.
[16]
Advocate Mashele argued that the Plaintiffs
were lawfully arrested in terms of Section 40(1) (a) and (e) of the
Criminal Procedure
Act 51 of 1977. Section 40 (1) (a) provides that:
(a)
A peace officer may without a warrant
arrest any person
(b)
Who commits or attempts to commit any
offense in his presence
(c)
Who is found in Possession of anything
which the peace officer reasonably suspects to be stolen property or
property dishonestly
obtained and whom the peace officer reasonably
suspects of such a thing?
[17]
She further argued that the first plaintiff
was arrested for committing an offense in the presence of a peace
officer with negligent
handling of a firearm. She contends that in
para 39 of the Sekhoto Judgment it was held that the peace officers
are entitled to
exercise their discretion as they see fit provided
that they stay within the bounds of rationality. The standard is not
breached
because an office exercises the discretion in a manner other
than deemed optimal by the Court. The standard is not perfect so long
as the discretion is exercised.
[18]
She further argued that the second and
third plaintiffs were arrested in terms of Section 40 1(b) and (e)
after they were found
in possession of a suspected stolen motor
vehicle and an unlicensed firearm. Regarding Malicious Prosecution
advocate Mashele argued
that the jurisdictional facts for a
successful prosecution are set out in Minister of Justice and
Constitutional Development &
Others v Moleko as follows:
(a)
That the defendant set the law in motion
(instigated or instituted the proceedings;
(b)
That the defendant acted without reasonable
and probable cause;
(c)
That the defendant acted with malice;(d)
That the prosecution has failed.
[19]
She argued that the prosecutor exercised
her discretion based on the information placed before her as
contained in the docket. The
information before the prosecutor formed
the body of evidence upon which the state shall infer whether a prima
facie case has been
established against an accused. The first and
fourth requirements were not in dispute in that the defendant indeed
set the law
in motion and that the prosecution failed, however, she
submits that the Plaintiff failed to prove that the defendant acted
without
reasonable or probable and probable cause and that the
defendant acted with malice and as a result, thereof the claim for
malicious
prosecution must fail.
Discussion
The arrest and
detention of the first plaintiff.
[20]
Tshepo testified that he never denied the
ownership of the firearm and the motor vehicle when he was questioned
by the police. It
has been argued by advocate Maluleke that after
Tshepo‘s confrontation with the police and his cooperation with
them he should
not have been arrested, the police officers had a
discretion whether to arrest him or not. If they chose to arrest him
they again
had discretion not to detain him. Tshepo did not pose a
threat to the investigations by the police. There was no need to
arrest
or detain him as eluded by the investigating officer in this
case. He gave them all the information they required for the
investigations
regarding the firearm and the motor vehicle.
[21]
Section 35 of the Constitution treats
arrest and detention differently and in two separate subsections. see
Raduvha v Minister of Safety and
Security and Another
[2016] ZACC 24
Bosielo AJ on para 35 said:
“
Everyone
who is
arrested
for
allegedly committing an offense" has specific rights. Subsection
(2), in turn, relates to "everyone who is
detained
,
including every sentenced prisoner” and recognizes its own set
of rights. Section 35(1) and
(2) draws a bright line’
[22]
Section 35(1) provides:
"Everyone who is
arrested for allegedly committing an offense has the right—
(a)
to remain silent;
(b)
to be informed promptly—
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining
silent;
(c)
not to be compelled to make any confession
or admission that could be used in evidence against that person;
(d)
to be brought before a court as soon as
reasonably possible, but not later than-
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the
expiry of the 48 hours, if the 48 hours expire outside ordinary court
hours or on a day
which is not an ordinary court day;
(e)
at the first court appearance after being
arrested, to be charged or to be
informed of the reason
for the detention to continue, or to be released; and
(f)
to be released from detention if the
interests of justice permit, subject to reasonable conditions.”
Section 35(2) provides:
‘
Everyone
who is detained, including every sentenced prisoner, has the
right(a) to be informed promptly of the
reason for
being detained;
(b)
to choose, and to consult with, a legal
practitioner, and to be informed of this right promptly;
(c)
to have a legal practitioner assigned to
the detained person by the state and at state expense, if substantial
injustice would otherwise
result, and to be informed of this right
promptly;
(d)
to challenge the lawfulness of the
detention in person before a court and, if the detention is unlawful,
to be released;
(e)
to conditions of detention that are
consistent with human dignity, including at least exercise and the
provision, at state expense,
of adequate accommodation, nutrition,
reading material, and medical treatment’
[23]
In
Thebus v S
[2003] ZACC 12
Yacob J articulated this
distinction clearly as follows:
"The three
subsections intersect, complement each other, and demonstrate a
logical pattern when viewed from the point of view
of the criminal
justice process that might unfold about a person who is suspected of
having committed an offense. The first step
envisaged is the arrest
of a person for allegedly having committed an offense. That person is
not yet an accused and the arrest
itself does not render him a
detainee entitled to the right set out in subsection (2).’
[24]
The plaintiffs were arrested without a
warrant in terms of section 40 of the criminal procedure act 51 of
1977. This Section 40(1)
provides that:
‘
A
police officer "may" arrest without a warrant any person
who commits or is reasonably suspected of having committed
any of the
offenses specified therein.’
[25]
In Raduvha v Minister of Safety and
Security and Another
[2016] ZACC 24
Bosielo AJ said that”
‘
In
its ordinary and grammatical use, the word "may" suggests
that police officers have a discretion whether to arrest
or not. It
is permissive and not peremptory or mandatory. This requires police
officers to weigh and consider the prevailing circumstances
and
decide whether an arrest is necessary. No doubt this is a
fact-specific inquiry. As the police officers are confronted with
different facts each time they affect an arrest, a measure of
flexibility is necessary in their approach to individual cases.’
[26]
The investigating office Gregory Kwadi
testified that the first plaintiff should not have been arrested in
this case for negligently
handling the firearm. They should have
secured other means of bringing him to court. I agree with him,
especially that he was not
found committing any offense. This is an
offense that has already occurred. The police cannot say that they
found him committing
negligent handling of a firearm or in possession
of a stolen vehicle. They should have investigated what he had told
them and thereafter
when they have found it to be false they secure
his attendants to court through other means. The police officers Mabe
and Mokgorotsie
should have reasoned it out whether to effect an
arrest or not to exercise their discretion to arrest. If they chose
to arrest
they should have asked themselves whether they exercised it
properly as propounded in the case of
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H
or
as per
Sekhoto Minister of Safety and
Security v Sekhoto and Another
[2010]
ZASCA 141
;
2011 (5) SA 367
(SCA) where the court, cognizant of the
importance which the Constitution attaches to the right to liberty
and one's dignity in
our constitutional democracy, held that the
discretion conferred in section 40(1) must be exercised "in
light of the Bill
of Rights".
“
Once
the jurisdictional facts for an arrest . . . in terms of any
paragraph of section 40(1) . . . are present, discretion arises.
The
question of whether there are any constraints on the exercise of
discretionary powers is essentially a matter of construction
of the
empowering statute in a manner that is consistent with the
Constitution. In other words, once the required jurisdictional
facts
are present the discretion of whether to arrest or not arises. The
officer, it should be emphasized, is not obliged to effect
an
arrest.”
[27]
It is trite that arrests curtail a person’s
freedom and traumatizes the arrested person. The impact and
consequences of arrest
on every human being cut deep and have a
long-lasting effect. In Minister of Law and Order V Hurley 1986(3)SA
568(A) at 589E-F
Rabie CJ explained that:
' an arrest constitutes
an interference with the liberty of the individual concerned and
therefore seems fair and just to require
that the person who arrested
or caused the arrest of another person should bear the onus of
proving that his actions were justified
in law’.
[28]
The defendant failed to establish the
fairness of the choice to arrest the first plaintiff in the
circumstances of this case. The
investigating officer also agrees
that the arrest of the first plaintiff was not justified. The police
could have secured his attendants
to court by other means. Because
his arrest was not justified it follows that his detention was also
not justified in the circumstances
of this case.
Arrest and detention of
the second and third plaintiff(the plaintiffs)
[29]
The second and third plaintiffs (the
plaintiffs) were arrested in terms of
Section 40
1
(b) and (e) of the
Criminal Procedure Act 51 of 1977
. In Minister of Law and Order v
Hurley 1986(3) SA 568(A) at 589E-F Rabie CJ explained that:
‘
The
person who arrested or caused the arrest of another person should
bear the onus of proving that his actions were justified in
law’.
[30]
To justify the arrest and detention of the
plaintiffs, the defense must prove that the person who arrested the
plaintiffs was a
peace officer who entertained a suspicion that the
plaintiffs committed a Schedule 1 offense; and that the police had
reasonable
grounds that justify their suspicion. See
Duncan
v Minister of Law and Order
1986 (2) SA
805
(A) at 818 G-H;
Minister of Safety
and Security v
Sekhoto
& Another
2011 (5) SA 367
(SCA) at
para 6.
[31]
The plaintiffs should have been found in
possession of anything which the peace officer reasonably suspects to
be stolen property
or property dishonestly obtained, and whom the
peace officer reasonably suspects of having committed an offense
concerning such
a thing. Therefore the court should decide, firstly,
whether the suspicion held by police officers Mr. Hemelton Matlala
and Mr.
Kekana Thapelo David that the plaintiffs had committed the
offense of possession of unlicensed firearm and possession of
suspected
stolen motor vehicle was based on reasonable grounds.
[32]
In
Mabona and
Another v Minister of Law and Order And Others
1988
(2)
SA 654 (SE) at 658 E-H
Jones J held that:
“
The
test of whether a suspicion is reasonably entertained within the
meaning of s 40 (
1)(b)
and
40(1)( e) is objective…. Would a reasonable man in the second
defendant’s position and possessed of the same information
have
considered that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of conspiracy to commit
robbery or
possession of stolen property knowing it to have been stolen? 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 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 or
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 that will justify an arrest. This is not to say that the
information at his disposal
must be sufficiently high quality and
cogency to engender in him a conviction that the suspect is 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 reasonable suspicion."
[33]
On consideration of the evidence adduced in
this matter, Mr. Hemelton Matlala and Mr. Kekana Thapelo ‘s
decision to effect
an arrest, objectively viewed, does not pass
muster. Mr. Matlala ought to have conducted further investigations
before effecting
an arrest. Section 36 of the General Law Amendment
Act 62 of 1955 provides as follows:-
"Any person who is
found in possession of any goods, regarding which there is a
reasonable suspicion that they have been stolen
and is
unable to
give a satisfactory account of such possession
, shall be guilty
of an offense and liable on conviction to the penalties which may be
imposed on a conviction of theft."
[34]
Mr. Matlala was informed by Mesia that the
firearm and the motor vehicle belonged to Tshepo. Tshepo was
confronted by the police
officers Mr. Mabe and Mokgorotsi with the
explanation given by Mesia and he confirmed the facts on the same
night of the arrest
that the properties were his. He even produced
the license for the firearm and papers for the motor vehicle but the
police did
not release the two plaintiffs. To show that they believed
that the firearm was indeed belonging to Tshepo they even charged him
for negligent handling of a firearm. I find that the explanation
which was given by the plaintiffs as required in terms of the
definition of the offense of possession was satisfactory to such an
extent that the second and third plaintiff should not have
been
arrested that night. The investigating officer also traced the
information mentioned by Tshepo regarding the motor vehicle
and found
it to be correct. This is the information that could have been
obtained also by the police officers before the arrest,
but they
didn't because all they wanted was an arrest. They forgot that
arresting someone who has given a satisfactory explanation
is
arbitrary and that their suspicion should have been canceled when
they found the owner of the firearm and the motor vehicle.
[35]
During the arrest, Mesia informed the
police that he was not aware of the fact that there was a firearm
inside the motor vehicle.
This fact was not disputed by the police.
This means from the beginning the police were well aware that Mesia
did not have the
unlicensed firearm when they arrested him. A person
cannot own something which they do not know that it exists. This was
a clear
indication that Mesia did not have the said firearm. The
police were also told that he was also not aware that the motor
vehicle
was stolen. He knew that these were his brother’s
properties. It is stated in the case of
De
Klerk v Minister of Police
2018 (2)
SACR 28
(SCA) para 11 that in an objectively doubtful situation, the
arresting officer must investigate the circumstances under which the
offense was allegedly committed.
[36]
Another issue is that Section 36 of the
General Law Amendment Act 62 of 1955 does not fall under the schedule
1 offense.
[37]
Another important aspect is that the third
plaintiff was also arrested for the possession of an unlicensed
firearm and possession
of a stolen vehicle but no evidence points to
the joint possession of these items which was adduced in court at
all. Even though
there was no evidence of his possession of the
firearm and possession of a stolen motor vehicle the police arrested
him. The investigating
officer should never assume facts but should
investigate the facts of the case. In this case, the investigating
officer wrongly
assumed that the third plaintiff had an unlicensed
firearm and possession of a stolen motor vehicle without any facts
supporting
that belief. There has been no evidence adduced against
Richard regarding possession of an unlicensed firearm and possession
of
a stolen motor vehicle that links him with the commission of these
two offenses. I turn to wonder what informed the police's suspicion
in the arrest of Richard.
Joint possession of an
unlicensed firearm.
[38]
In
arresting the second and third plaintiffs for group possession of
firearms, the court should follow the requirements laid down
in the
case of S v Nkosi
1998
(1)
SACR
284
(W)
.
The test for establishing liability for the possession of firearms
and ammunition was established in S v Nkosi
1998
(1)
SACR
284 (W)
:
as follows:
'The issues which arise
in deciding whether the group (and hence the appellant) possessed the
guns must be decided concerning the
answer to the question whether
the State has facts from which it can properly be inferred by a Court
that:
(a)
The group had the intention (animus) to
exercise possession of the guns through the actual detector and
(b)
The actual detectors had the intention to
hold the guns on behalf of the group
Only
if both requirements are fulfilled can there be joint possession
involving the group as a whole and the detectors, or common
purpose
between the members of the group to possess all the guns.'
[38]
In
Mbuli
2003
(1)
SACR
97
(SCA)
([2002] ZASCA 78 Nugent JA emphasized that a common intention to
possess a firearm intentionally can only be inferred when the
group
had the intention (animus) to exercise possession of the firearm
through the actual detector and the actual detector had
the intention
to hold the firearm on behalf of the group.
[39]
The Supreme Court of Appeal followed a
similar approach in
Kwanda v
State
2011
ZASCA 50
when it held that:
'The
fact that the appellant conspired with his co-accused to commit
robbery, and even assuming that he was aware that some of his
co-accused possessed firearms for committing the robbery, does not
lead to the inference that he possessed such firearms jointly
with
his co-accused.'
[40]
If Mesia did not possess the said firearm
what then informed the police that Richard had the firearm. Richard
was given a lift by
Mesia and that fact was never disputed by the
defense. The defense failed to prove that there was possession of a
firearm by Mesia
and Richard in this case. They also failed to adduce
evidence of joint possession of the firearm and the motor vehicle by
the plaintiffs.
The defense had an onus to prove that the plaintiffs
had the necessary mental intention (animus) to possess the firearm.
One turns
to be puzzled as to what reasonable grounds they had to
arrest Mesia and Richard regarding the possession of the unlicensed
firearm
and the motor vehicle.
[41]
It was established that the actual
possessor in this regard was Tshepo who was also the owner of the
firearm. He had the intention
to possess the said firearm wherever it
was but it could not be said that he possessed it also for Mesia and
Richard in the circumstances
of this case. The two plaintiffs should
have been aware that Tshepo possesses the said firearm for them.
There is also no evidence
from which it can be inferred that Tshepo
intended to possess the firearm jointly with Mesia and Richard.
[42]
When applying the case of Nkosi(
supra
)
to the facts of this case at hand, there is no evidence from which it
can be inferred that the plaintiffs had the intention to
exercise
possession of the firearms and also that Tshepo had the intention to
possess the firearm jointly with Mesia and Richard.
[43]
From the evidence adduced there was no
evidence at all that warrant the police to arrest let alone without a
warrant. This means
the arrest of the plaintiffs was unlawful in the
circumstances of this case and it follows that the subsequent
detention was therefore
unlawful.
Malicious prosecution of
the second and third plaintiff
[44]
For the plaintiffs to succeed in the claim
for malicious prosecution the plaintiffs have an onus to prove
through evidence that
the requirements for malicious prosecution have
been met. (see Gordon Lloyd Page & Associates v Riviera and
Another 2001(1)
SA 88(SCA) AT 92E 93A. Claude Neon Lights SA LTD v
Daniel
1976 (4) SA 403
v(A) at 409G-H
[45]
The requirements for malicious prosecution
consist of the following:
(a)
Defendant setting the law in motion
(instigated or instituted the proceedings);
(b)
The defendant acting without reasonable and
probable cause;
(c)
The defendant acting with malice (or
animo
iniuriandi
); and
(d)
The prosecution failed.
[46]
It is common cause that the prosecution
proceedings had already commenced in this case at hand. The question
now is whether reasonable
grounds for such commencement of
prosecution existed then. This question can best be answered by the
only reference to the facts
in this case. (see
Minister
of Safety and Security and Another v Schubach
2015
JOL 32615
(SCA)at Para 13).
[47]
The
test for reasonable and probable cause contains both a subjective and
objective element, which means that there must be both
actual beliefs
on the part of the defendant and also that, that belief is reasonable
in the circumstances. This Court in
Beckenstrater
v Rottcher and Theunissen
1955
(1) SA129 (AD) at 136A–B [also reported at
[1955]
1
All
SA
146
(A) – Ed] set out the test for
"absence of
reasonable and probable cause" as follows:
"When it is alleged
that a defendant had no reasonable cause for prosecuting, I
understand this to mean that he did not have
such information as
would lead a reasonable man to conclude that the plaintiff had
probably been guilty of the offense charged;
if despite his having
such information, the defendant is shown not to have believed in the
plaintiff's guilt, a subjective element
comes into play and disproves
the existence, for the defendant, or reasonable and probable cause."
[48]
I, therefore, proceed to consider whether
the evidence supports the allegation that the defendant had a
reasonable and probable
cause when setting the law in motion that
indeed the plaintiffs possessed the unlicensed firearm. The defendant
was incorrect in
believing that there is evidence of possession of an
unlicensed firearm by Mesia and Richard as discussed above regarding
the possession
and joint possession of a firearm.
[49]
A prosecutor exercises discretion based on
the information before her. In
S v
Lubaxa
2001 (2) SACR 703
(SCA)
(2001
(4) SA 1251
;
[2002] 2 All SA 107)
para 19 this court said the
following:
'Clearly, a person ought
not to be prosecuted in the absence of a minimum of evidence upon
which he might be convicted, merely in
the expectation that at some
stage he might incriminate himself. That is recognized by the
common-law principle that there should
be reasonable and probable
cause to believe that the accused is guilty of an offense before a
prosecution is initiated and the
constitutional protection afforded
to dignity and personal freedom (s 10 and s 12) seems to reinforce
it. It ought to follow that
if a prosecution is not to be commenced
without that minimum of evidence, so too should it cease when the
evidence finally falls
below that threshold.'
[50]
Courts are not overly eager to limit or
interfere with the legitimate exercise of prosecutorial authority.
However, a prosecuting
authority's discretion to prosecute is not
immune from the scrutiny of a court that can intervene where such
discretion is improperly
exercised. See generally
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(1) SACR 361
(SCA)
(2009 (2) SA 277
;
2009 (4) BCLR 393
;
[2008] 1 All
SA 197)
Para 37. Indeed, a court should be obliged to, and therefore
ought to, intervene if there is no reasonable and probable cause to
believe that the accused is guilty of an offense before a prosecution
is initiated.”
[51]
In the circumstances, it cannot be said
that the defendant had a reasonable and probable cause for the
prosecution of the plaintiffs.
There was no evidence at all of the
possession yet the prosecutor proceeded with the matter hoping that
if the matter goes for
trial the plaintiffs might incriminate
themselves. She did not have evidence of possession nor joint
possession. Tshepo had already
pleaded guilty to negligent handling
of his firearm by leaving it in his car. But with that information,
she continues to charge
Mesia and Richard. The plaintiff managed to
prove that the prosecution had no probable cause when they set the
law in motion. The
prosecution had failed in this case. Therefore the
prosecution was malicious in proceeding with the matter against the
plaintiffs
without evidence.
[52]
In the results, the following order is made
1.
The Minister of Police is liable to Mr.
Tshepo Lucas Phiri for damages that may be proved.
2.
The Minister of Police must pay Mr. Tshepo
Lucas Phiri's costs.
3.
The Minister of Police and The National
Director of Public Prosecution are liable to Johannes Mesia Phiri and
Richard Baloyi for
the damages that may be proved.
4.
The Minister of Police and The National
Director of Public
Prosecution
must pay Johannes Mesia Phiri, Richard Baloyi ‘s costs.
M.M. MUZHELELE
ACTING JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
On behalf of the first
plaintiff:
Adv. M. T. Maluleke
Instructed
by:
Makula Attorneys, Pretoria
On behalf of the second
and third plaintiffs: Adv. O. P.
Makola
Instructed
by:
Makula Attorneys, Pretoria
On behalf of the
defendants: Adv.
V. Mashele
Instructed
by:
State
Attorney
Date
heard:
10
May 2021
Judgment
electronically delivered:
03
June 2021