Nontsele v Minister of Police and Another (643/2016) [2021] ZAECMHC 29 (12 August 2021)

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[2021] ZAECMHC 29
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Nontsele v Minister of Police and Another (643/2016) [2021] ZAECMHC 29 (12 August 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.:     643/2016
Date
of hearing:    09 October 2020
Date supplementary heads filed:  16 October 2020
Date circulated to the parties
:   12 August 2021
In
the matter between:
MABHASO
NONTSELE
Plaintiff
And
MINISTER
OF POLICE
First Defendant
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Second Defendant
JUDGMENT
MAJIKI
J:
INTRODUCTION:
[1]
The plaintiff sued the two defendants in their nominal capacities for
wrongful arrest and detention as
well as malicious prosecution.
PLEADINGS
[2]     It is necessary to
transcribe the allegations made by the plaintiff in his particulars
of claim.
‘
9.
The
plaintiff was held in detention from the 8
th
of December 2013 until the 19
th
of May 2015, namely a period of 550 days.
10.
In effecting the said wrongful and unlawful
arrest and detention of the plaintiff, the aforesaid arresting
officer:
10.1
invoked the power to arrest for a purpose
not contemplated by the legislature; and
10.2
invoked
the power of arrest, to frighten and harass the plaintiff, by
punishing him through arrest and detention, and
10.3
invoked the power to arrest for an ulterior
purpose, and
10.4
arrested the plaintiff without ever considering any explanation
or statement from the plaintiff,
setting out his innocence in
connection with the alleged crimes and in particular that there was
no evidence against the plaintiff:
and
10.5     acted
without taking into consideration the facts conveyed to them by the
plaintiff at the time of his
arrest and
10.6
acted without critically analysing any
information at their disposal, before arresting    the
plaintiff and
10.7
acted without considering alternative and
less dramatic means of securing the attendance of the plaintiff at
court and
10.8
acted without considering whether the
detention of the plaintiff was necessary at all and, in particular
without considering:
10.8.1
whether the plaintiff was a flight risk and
10.8.2
whether the plaintiff would interfere with
witnesses and
10.8.3
whether the plaintiff would hamper
investigation and
10.8.4
whether the plaintiff was of fixed abode
and could be easily traced.
10.9
acted in a way which ignored the
plaintiff’s constitutional rights as enshrined in the Bill of
Rights and the Constitution, and
contrary to the presumption of
innocence of the plaintiff and
10.10   acted without
exercising a discretion to arrest in a fair and
balanced
manner and
2.11   failed to exercise
their discretion properly in that the plaintiff should never have
been arrested at all, had the
arresting officer taken due account of
all the above circumstances and
2.12   acted in arresting
and detaining the plaintiff in circumstances where there was no
urgency to so arrest him and where
investigations were still
underway.
11
The police officials who acted as
investigating officers in the charge levelled against the plaintiff,
and the State Prosecutors in
Lady Frere Magistrate’s Court, whose
full and further particulars are unknown to the plaintiff, owed the
plaintiff a duty of care:
11.1
to assess the strength of the State’s
case against the plaintiff and to determine whether there existed a
prima facie
case against the plaintiff and
11.2
to ensure that the charges and proceedings
against the plaintiff were    dealt with by them in
accordance with law
and in accordance with the dictates of justice
and
11.3
to ensure that the plaintiff not be
detained in custody, or that his detention in custody not be
extended, where no
prima facie
case existed against the plaintiff and
11.4
not to seek the imposition of bail if no
prima facie
case against the plaintiff had been recorded and
11.5
to place before the court during the
process of all court appearances and remands, and whilst determining
the issue of bail in respect
of the plaintiff, all relevant
information including information as to the strength and weaknesses
of the State’s case against
the plaintiff, and information in the
plaintiff’s favour relating to the complete lack of evidence,
alternatively, insufficient
evidence against the plaintiff which
would be highly relevant to the granting of bail and the continued
prosecution of the plaintiff.
12
On the 3
rd
of February 2014, and at the Lady Frere Magistrate’s Court, the
members of the South African Police Services, whose names are
presently
unknown to the plaintiff, together with the prosecutor, Ms
S Maarman, who dealt with the case on that day, opposed the granting
of
bail to the plaintiff, and did so maliciously in concert, well
knowing that no
prima facie
case existed against the plaintiff at that time or at all.
13
The wrongful arrest and detention and
malicious prosecution of the plaintiff took place in Lady Frere,
within the area of jurisdiction
of the above Honourable Court.
CLAIM 2: MALICIOUS PROSECUTION
14
During December 2013, the said members of
the South African Police Services set the law in motion against the
plaintiff by laying
a false charge of rape against the plaintiff,
when they:
14.1
had no reasonable or probable cause for doing so
and
14.2
were actuated by malice and
14.3
had no evidence whatsoever that the
plaintiff had been involved in such a crime.
15.1
On the 19
th
of May 2015, the charge of rape against the plaintiff was withdrawn,
he having been spent 550 days in unlawful detention.
15.2
The charge of rape was again re-instated against the plaintiff on the
15
th
of July 2015, when the matter proceeded to the Regional Court in Lady
Frere, on which occasion the plaintiff was found not guilty
and
discharged in terms of section 174 of the Criminal Procedure Act.
16.  As a result of the
plaintiff’s malicious prosecution aforesaid, he suffered general
damages in respect of contumelia in
the sum of R200 000.00, by
virtue of the fact that:
(i)
the plaintiff was paraded before Court in
view of the public on all occasions when his matter came to court and
was remanded and
(ii)
the plaintiff was presented as a common
criminal on each such occasion.’
[3]
The special plea of non-joinder of the complainant and the minister
of justice and correctional services,
persisted with by the first
defendant at the commencement of trial, was dismissed on the basis
that they did not have direct and
substantial interest which would
prejudice them if they were not joined.
[4]
In his plea the first defendant averred that the plaintiff was
initially removed by the arresting officer
from his home to the
police station because the members of the community were angry and
wanted to harm him.  He could not be
questioned in the presence
of such people.   After he was questioned, he was arrested,
and a charge of gang rape of K[...]
S[...] (K[,,,]) was laid against
the plaintiff and two others.
[5]
The first defendant averred that “the eye witness and the
complainant
was highly intoxicated.”
Therefore, she could not give valid consent to sexual intercourse.
The complainant was also
reported to be mentally challenged.
The plaintiff was arrested in order to have access to his clothes and
search for evidence,
without him knowing, he was suspected of being
part of the people who committed rape.
[6]
Further, the first defendant pleaded
“
The
case opened against the plaintiff was not less a serious offence like
shoplifting where means of security the attendance of the
accused
person may be less dramatic, here we are talking about very serious
offence … all these factors justify the action that
was taken …”
[7]
The second defendant denied that the state prosecutors acted
maliciously in prosecuting the plaintiff.
It said the
plaintiff’s warning statement, other state witnesses’ statements
and the medical record, known as J.88 were considered
by the
prosecutor. Consequent thereto, two state witnesses were interviewed,
thereafter a
prima facie
case to prosecute the plaintiff was established.  Further the
opposition of bail by the state prosecutors was in line with the
law.
The onus was on the plaintiff to demonstrate that he was a candidate
to be released on bail.
EVIDENCE
[8]
In the plaintiff’s case, only the plaintiff testified.
The
plaintiff testified that at the time of his arrest he did odd jobs
assisting builders. He left school after he failed standard
eight.
He was arrested on 8 December 2013 in the afternoon by sergeant
Njotini at his home, in the presence of his mother.
Other two police
officers arrived at the time he was about to be taken away.
[9]
Sergeant Njotini advised her that she was arresting him for the rape
of K[,,,]. He told her that he knew nothing
about the rape of
K[,,,].  Sergeant Njotini told him that he would explain that at
the police station.  According to him,
he only knew K[,,,] from
the locality. He found one Konono in a van driven by sergeant Njotini
with K[,,,] and her sister at the
back of the van, with no canopy.
He was arrested together with Konono and one Kwanda.  They were
all taken to the police
station by the other two police.
[10]
He said on 6 December 2013 he attended a pre-circumcision event of
local boys from the afternoon until the following
day.  Kwanda
and Konono were also present.  Although he had been drinking he
remained conscious of what was happening around
him, throughout.
There were many people but he did not see K[,,,]. He never spoke to
her or had sexual intercourse with her.
[11]
He was next visited by sergeant Njotini after a day or two. She
minuted a statement from him, he was speaking
IsiXhosa and he was not
aware of what she wrote.  His understanding of english language
is generally poor, the statement was
not read back to him. He signed
it because he was not aware that he could refuse to sign, or that he
could choose to remain silent,
it was his first time to have a brush
with the law. He was also informed of the charges, then. A saliva
swab was taken from him in
about eight days of his detention.
[12]
On the 4 February 2015 he applied for bail and it was refused.
The prosecutor did address court but that was
not interpreted to
IsiXhosa. He continued to go to court until he was released on 19 May
2015. However, on 20 May 2015 sergeant Njotini
took him to the police
station and to court again. He was warned to appear again on 15 July
2015.
[13]
On 15 July 2015 his trial was proceeded with, the witnesses
testified, K[,,,] stated that she knew nothing about
the crime. He
was then discharged.
[14]
He said the arrest hurt him.  He lost weight and has never
regained it.   He was detained in a communal
cell, its
toilet had no door. He and his inmates had to block the view of the
toilet with a sponge mattress.  Sometimes there
would be no
water to flush the toilet.  They slept on the sponge mattresses
on the floor, with no pillows.  In Lady Frere
the winter season
is always very cold and windy. They sat on a cement bench.  His
view did not extend beyond the cell, the windows
were high. Other
inmates were smoking, he is a non-smoker. He contacted tuberculosis.
They would go without meals and would be told
that they had been
forgotten. Breakfast was served between 09h00 and 10h00 which made
things difficult for those who took medication,
like him. The inmates
would fight with each other over food.
[15]
His lover also broke up with him saying he was a rapist. He also felt
bad because the members of the community
viewed him as a rapist. His
mother’s health also deteriorated. She used to attend court.
When he appeared in court on 2 October
2014 he realised that he was
unable to lift up his right leg.  He was taken to Glen grey
hospital, his leg became worse he felt
sharp needle like pains and he
could not put it down.
[16]
In cross examination he said, he did not know what information was in
possession of sergeant Njotini when she came
to arrest him, he did
not see any of the statements in her possession. He was also not
aware that on the day of his arrest there
were people who were angry,
asking why the suspects were not arrested and saying if they were not
removed, they would deal with them.
He also did not know that such
was one of the investigating officer’s reasons for opposing his
release on bail, together with the
fact that, there was information
that he threatened state witnesses.  He said at his home he was
only with his mother, no one
threatened to interfere with her in her
duties. There were also no crowds when the police fetched Kwando.
[17]
He disputed that he told sergeant Njotini that he had consensual
sexual intercourse and a love relationship with
K[,,,]. He said he
had denied that he had sexual intercourse with K[,,,].  He had
denied so even to Nophendule Sogiba, a member
of K[,,,]’s family.
Nophendule assaulted him and chased him away. He left his shirt in
the room he had been with the boys.
He did tell sergeant Njotini
about that, that may be the reason why it was contained in the
warning statement. He said he took off
his shirt because he was
feeling hot. He said he knew nothing about the state K[,,,] was
reportedly in, the next morning, that of
having torn jeans and
wetness.  He admitted that the two police officers who took them
to the police station, gave them documents.
That was after the
police officers had explained what was contained in the documents,
however, he did not understand the explanation.
They took the
documents with to the detention cell, the inmates used them for
smoking. He never admitted that he committed the offence
to the said
officers.  The notice of rights in terms of the Constitution is
recorded to have been signed by the plaintiff at
16h50 on 08 December
2013.
[18]
He said he never made a phone call from K[,,,]’s phone which was
reportedly stolen, he also never took the said
phone to K[,,,]’s
mother. He said when Sindiswa met him, half naked in his upper body,
on the passage, he was from the room with
the boys. He denied that he
was leaving the room where K[,,,] was, allegedly being raped by other
two persons. He said he could not
deny that there were items found in
the room where the rape took place, including a shirt.
[19]
At the end of the state case, Ms Nhantsi, counsel for the second
respondent applied for absolution from
the instance of the second
respondent. She said no
prima facie
case had been made against the second respondent. The plaintiff had
not alleged and proved the elements of a claim for malicious
prosecution. The application was successfully opposed. The court was
of the view that were averments in the particulars of claim
and
evidence had been led upon which the court might find for the
plaintiff in respect of the claims against the second defendant.
[20]
Two (2) witnesses testified on behalf of the first defendant. Captain
Silwana testified in relation to the bail proceedings.
He said
he was told in the morning of the day that he went to court that, he
had to stand in for the investigating officer, who was
away when the
bail application was heard. He was not involved in the matter.
He said sergeant Njotini told him that she was
opposing bail because
the applicants were not safe in their community, people wanted to
kill them; that an eyewitness had been threatened
with assault by the
applicants and finally, that the complainant was very drunk during
the commission of the offence.  Sergeant
Njotini asked him to
present those in court, as her reasons for opposing the bail
application, on her behalf.  He had no personal
information
about those.
[21]
He said he never read the docket, it was brought to court during the
bail hearing.  If there had been a suggestion
of a place where
the plaintiff and his co-accused could have been safe, he would not
have opposed their release.  He also did
not know which accused
had threatened to assault a state witness.  He conceded that he
was obliged to inform the prosecutor
about a weakness in the state
case.
[22]
Sergeant Njotini’s testimony related to the arrest and reasons for
opposing the release of the plaintiff on bail.
She said she had
fourteen (14) years experience.  On 8 December 2013, she was
handed with a docket in the matter.  It contained
the
complainant’s statement, the J88 with the doctor’s conclusions,
that the injuries of the victim were consistent with sexual
offence.
She proceeded to the village to follow up on the matter.  Next
to the gate of K[,,,]’s home there were men
armed with bush knives
and sticks, looking furious.  They surrounded the van she was
driving and started to hit it.  She
explained that she was there
to meet K[,,,] in relation with a criminal matter.
[23]
The people asked where the police had been, they said if the police
were unable to do their work, the people would
do it for the police.
The police van she had called for, as back up, arrived.  Both
vans left to look for the suspects.
There were community
members where they found Konono as well.  They wrestled with the
police over Konono, but did not succeed.
They proceeded to the
plaintiff’s home.  They found community members standing
outside his home.  She shouted the plaintiff’s
name, she told
him to rush, and that she would like to hear from him, at the police
station.  They rushed to the third suspect’s
home, they got
there ahead of the community members who were causing commotion.
[24]
They got to the police station, she left the suspects as she wanted
to meet the witnesses first.  K[,,,] confirmed
what was in her
statement, that she had been drunk at a relative’s home.  She
was woken up by Sindiswa.  Sindiswa showed
her that her
trousers’ zip was torn.  There was a male sleeping next to
her.  Sindiswa told her that she was raped by
three (3) men,
including one who lied next to her, Konono.  The other one was
Mjozana and another was unknown.  She also
realised that she had
fluids in her underwear.  She knew nothing about what could have
happened to her.  Her cellphone
was missing.  Her mother
told her that she received a phone call from Mjozana, using K[,,,]’s
phone.  Sergeant Njotini
said she did not remember how K[,,,]’s
cellphone was recovered.
[25]
Sindiswa confirmed what was contained in her statement as well.
She said she saw the plaintiff on his way out
of the room where
Konono was raping K[,,,].  The plaintiff was naked in his upper
body.  Sergeant Njotini said Sindiswa’s
statement was of
substance in relation to the charge of rape.  She went back to
the police station.  She met the three
(3) suspects,
individually.  She told them of the allegations against them.
The plaintiff said K[,,,] had consented to
sexual intercourse with
him.  They drank together and he kept her cellphone.
Sergeant Njotini told him that K[,,,] was
too drunk to consent and
that they were related.  The plaintiff said he was also drunk.
She told him that he was under
arrest.  She said she critically
analysed the information that was infront of her and formulated a
reasonable suspicion that
he had committed the offence.  He was
advised of his constitutional rights.
[26]
She said she charged the plaintiff on 9 December 2013 after she had
advised the plaintiff of his legal right relating
to the minuting of
a warning statement, the plaintiff elected to make one.   The
warning statement appears to have been
signed at 19h40 on 9 December
2013.  She said she detained the plaintiff because his life was
in danger.  Further, he was
charged of a schedule 6 offence.
She gave instructions that the plaintiff’s bail be opposed on the
basis stated by the previous
witness.  She was of the opinion
that he would interfere with the state witnesses, if he were to go
back to his locality.
She also considered him to be a flight
risk because of the seriousness of the case against him.
[27]
She said she had no duty to interrogate the strength of the case,
that was the court’s duty.   Also,
she had no duty to
disclose the strength and weakness of the state case.  She
disclosed all the information she had and handed
the docket to the
prosecutor.  She sent the DNA samples for testing.  Even
though the results were available on the system
on 14 March 2014, she
did not access them electronically and was also not advised of their
outcome, despite her constant follow up,
until they were dispatched
to her in hard copy.
[28]
After the bail was denied she never considered that it was necessary
to pursue the reconsideration of bail.
She was also not
approached in that regard.  After 2015 she did not re-arrest the
plaintiff.  She was also not present
in court, after the
plaintiff got ill.
[29]
In cross examination she confirmed that she gave the instructions
contained in the plea, that the plaintiff was arrested
because the
community was angry at the suspects and would harm them, if they were
not arrested.  The reason of keeping all of
them in detention,
was in order to protect them.  She said it was not her
instructions that she needed the suspects’ clothes
for purposes of
DNA testing.
[30]
She confirmed that, in her statement, she said the victim’s
statement did not make a strong case.  Further,
it said her
decision to arrest was made after the statement of Sindiswa, the
eyewitness was obtained.  She conceded that her
own statement
did not say that Sindiswa said she saw the plaintiff having sexual
intercourse with or that she saw Konono raping K[,,,]
and putting his
pennis in his trousers, as she had testified.  She also conceded
that Sindiswa was not an eyewitness in the
case against the
plaintiff.  She said in the light of the fact that Sindiswa
stated that, nothing occurred in her mind when
she saw the plaintiff
half naked, sergeant Njotini may have omitted to record her line of
thoughts in her statement. She in fact
thought that, after Sindiswa
saw Konono raping K[,,,], Sindiswa must have subsequently concluded
that the plaintiff also raped K[,,,].
She conceded that she omitted
to record Sindiswa’s words, ‘I did not ask Mabhaso why he was
like that, (naked on top)
as I
was not expecting anything
(brackets mine).    Nonetheless, sergeant Njotini said
she was able to place the plaintiff on the scene.
[31]
She said she regarded herself as having had sufficient evidence
against the plaintiff, regardless of the fact that
it was two (2)
other people that were seen having sexual intercourse with K[,,,] and
not the plaintiff.   She said the
consent alleged by the
plaintiff would be disproved because the victim was drunk. The
doctor’s report also confirmed injuries consistent
with sexual
assault. The reading of the J88 reveals that ureteral orifice was
noted to be red ++ and swollen and that erosion, increased
friability
and discharge were present. The cervix and the posterior fourchette
were also red, among others.   She said
she was also going
to obtain samples for DNA testing.
[32]
Sergeant Njotini confirmed that she asked the plaintiff about being
seen half naked, he said he was hot.   She
said that was a
lie, there were not many people there.  She also conceded that
she did not enquire of where exactly Sindiswa
met the plaintiff.
During criminal trial Sindiswa had said that he was on the verandah
stretching. She said she was told by
Sindiswa that she crossed paths
with the plaintiff at the verandah.  She did not specify that
because she had seen the verandah,
it was closeby.
[33]
She said she would not wait for DNA results before effecting arrest
because those take long to be available.
Further in a gang rape
DNA did not usually point at more than one (1) person, if it came
back positive, anyway.  When she was
taken through the warning
statement, it became clear that she did not communicate or complete
the
pro-forma
form correctly.  Most importantly, the plaintiff had said he did
not understand the allegation against him.  She said she
thought
he meant that he denied the allegation.  He had also elected to
have an attorney provided for him, however the statement
was minuted
without one being provided to him.  Sergeant Njotini said the
election was made with regard to court attendance.
It was also
pointed out to her that she did not mark any of the elections of
rights made by the plaintiff.  Further, the
statement was
exculpatory, in nature, in that it raised a defence of consent. She
disputed that for that reason, she was supposed
to investigate
further, according to her, the victim was drunk and could not
consent.
[34]
With regard to opposing bail she said she had no duty to find an
alternate address for the plaintiff.  It was
the duty of his
lawyers to forward such.  She said she was not told that the
plaintiff had forwarded an alternate address of
his grandmother in
Bronkospruit, otherwise she would have verified it and would not have
opposed his bail application. She had not
seen the record of the bail
proceedings. She said she informed the prosecutor that the victim was
very drunk, she did not know that
the magistrate was not made aware
of that, early on, by the prosecutor.  She also advised the
prosecutor of the DNA results
on the same day of receiving the
results.  During cross examination she said she was reminded by
the note in her diary of the
date on which she attended to the
prosecutor, it was on 7 August 2014.  She specifically repeated
that she had no duty to disclose
to the prosecutor or court the
weakness of the state case. She said she never charged the plaintiff
about the theft of the cellphone
because it had already been
returned.
[35]
She said she would not warn a suspect in a rape case.  The
plaintiff could run to any place within the country,
even if he had
no international passport,  she took into account that he was
staying with the victim in the same area, he could
intimidate the
witnesses and disturb the investigations.  Captain Silwana was
the one who brought the information that witnesses
were threatened
and she was of the view that investigation would be interfered with.
According to her the bail conditions would not
address such.
[36]
Two witnesses testified on behalf of the second defendant, Miss
Maarman who enrolled the matter and attended to bail
proceedings.
Mr Buso testified about main trial and how the prosecution failed.
Both of them denied that the plaintiff’s
prosecution was
malicious.  Ms Maarman and Mr Buso had nine (9) and twenty two
(22) years experience as prosecutors, respectively.
Mr Buso was
attached to the Lady Frere sub cluster at the time the matter was
before court. Currently he is in the office of the
deputy director of
prosecutions, Mthatha.
[37]
Ms Maarman specifically stated that the plaintiff was neither
arrested and detained by the members of second defendant
nor did he
make such allegations against the second defendant.  He was
brought to court within the prescribed forty eight (48)
hours, on 10
December 2013.  She said she is the one who received the
plaintiff’s docket and had it enrolled.  She said
she
considered the statements in the docket and concluded that there was
evidence of all the elements of rape, that is, unlawful
and
intentional sexual penetration, without consent.
[38]
She repeated what was contained in Sindiswa’s statement, in
particular  that the plaintiff’s warning statement
contained
an admission which placed him on the scene of crime.  Further,
K[,,,] said she was very drunk, she cried and her pants
were torn.
Such was not consistent with consensual sexual intercourse. It was
also unlikely that K[,,,] was the plaintiff’s
lover, had she been,
he would have not allowed others to have sexual intercourse with her,
as well.  The J88 corroborated one
of the allegations in the
docket, it noted injuries consistent with rape.  She was then of
the view that there was a
prima facie
case against the plaintiff.   Mr Buso as well said, in the
circumstances of this case, he would have also enrolled the
matter.
[39]
She said an admission, even if eventually inadmissible at trial, is
capable of being taken into account for purposes
of enrolment.
The bail application, was opposed.  The plaintiff and his
co-accused put up affidavits which did not profer
their versions.
They bore the onus to prove exceptional circumstances justifying
their release on bail.  She could not
recall what the state
disclosed on the merits of the case.  The investigating officer
was not available.  She also did
not have the police docket.
However, she told the court that if it was satisfied that it was in
the interests of justice to admit
them to bail, they may be released.
Mr Buso agreed with her that it would have been difficult for Ms
Maarman to explain the state
case, without a docket.
[40]
She did not agree that K[,,,]’s statement did not implicate the
plaintiff.    She also said Sindiswa
had fluids in her
underwear.  She said, in circumstances where the applicants in a
bail application were legally represented
and had not said the case
against them was weak, or disclosed the basis of their denial of the
charges, she did not consider herself
as having a duty to go into the
merits of the case and disclose weakness in the state case, unless
the court enquired into that.
She also said she did not
disclose that the complainant did not know what had happened, because
she was going to rely on circumstantial
evidence. She did not regard
it as necessary at that stage to tell the court even about the said
fact, that she was going to rely
on circumstantial evidence.   Mr
Buso conceded that weaknesses in the state case, like, the reliance
on circumstantial
and hearsay evidence and not having a positive DNA
results, had to be disclosed, promptly, at the earliest opportunity
in the case.
[41]
She said later, on 6 February 2014 the police docket came, she
considered it as to whether there were grounds to oppose
bail.
She placed the nature of the evidence that would be led during trial,
which in her view was a strong
prima
facie
case.  Ultimately, she left it to court to make the decision
about whether to grant bail or not.  The court also had to
decide on the threats on the plaintiff and the victim.  Despite
having considered that conditions could be attached to their
release
on bail, the life threats had an impact on the weight that was
supposed to be taken into account in determining whether their
release was in the interest of justice.
[42]
She said plaintiff did not testify, in order to state that he would
have been safe at an alternate address.
She did not think of
asking his legal representative about that.  She said despite
the fact that the plaintiff had a fixed address,
she considered him
to be a flight risk because of the strength of the evidence against
him.
[43]
She disputed that by charging the plaintiff she kept the law in
motion against the plaintiff, after the police had
initially set the
law in motion.  She denied that the prosecutors were negligent
in the application of the law.  She said
she ascribed the fluids
on the victim and the tear in her trousers on the plaintiff because
he had admitted sexual intercourse.
[44]
She said during trial, if admissible, she could use an exculpatory
statement.  She would support it with other
evidence that proved
the case, against the plaintiff, in spite of the exculpatory part of
consent in the statement.  Consent
would have been countered by
the victim’s drunkenness.  That the plaintiff said in his
warning statement, he did not understand
the charge, she thought he
was denying the charge and that would be capable of being challenged
during trial. That was not a serious
flaw for purposes of the
determination of bail.  The fact that he had requested a state
attorney and still had a statement minuted
without one, did not call
for her to ignore what he had deposed to, about the facts of the
case.
[45]
Mr Buso testified that the docket was brought by him, after he had
intervened and engaged the seniors of sergeant
Njotini.  He
found Ms Maarman in court, he could not disturb her because she was
in trouble with the court about the unavailability
of the
investigating officer. The matter was allocated to the regional court
sometime in 2014.  Eventually, in June 2015 he
enrolled the
matter for trial.  At that stage there was strong circumstantial
evidence of gang rape against the plaintiff.
His analysis of
available evidence was similar with that of Ms Maarman.
Further, he said he consulted with state witnesses
and his view of a
strong case was fortified.  More information came out from the
witnesses, for example, Sindiswa said as she
was entering the room
where the rapes allegedly took place, the plaintiff was coming out of
the said room.  She had seen his
two co-accused, actually in the
act.  The investigating officer also confirmed that information.
[46]
He said things changed during trial, unexpectedly. Sindiswa
contradicted herself, she omitted testifying about things
she had
said in consultation, she seemed lost and uninterested.  The DNA
result was negative. The warning statement could not
be admitted.
It was made before a constable and the rights had not been clearly
explained.  However, if the preliminary
formalities had been
done correctly, it would still pass the test of having been made
freely and voluntarily.  All along he
had been confident about
his case against the plaintiff.  Even in his address to court at
the end of the state case he said,
if the court would be questioning
why the matter was enrolled in the first place, the answer would have
been that he was in an unfortunate
situation in that the information
he had, was not tendered in court, by the same witness he obtained it
from.
[47]
According the Mr Buso the DNA result came to his attention after the
trial had already started, in June 2015.
This is despite the
fact that according to sergeant Njotini she had furnished the results
to the prosecutor on 7 August 2015.
He said he had no personal
vendetta against the plaintiff.  He submitted there was no gross
negligence in the prosecution of
the plaintiff.  He said gang
rape is a schedule 6 offence which attracts long term imprisonment.
It is a serious offence.
The plaintiff had to wait in jail, for
him to be released, he had to show exceptional circumstances
justifying his release.
[48]
The issues for determination in relation to arrest and detention
against the first defendant are whether Sergeant
Njotini had a
reasonable suspicion to have the plaintiff arrested.  Further,
whether the plaintiff’s continued detention was
justified.
With regard to the second defendant, whether the prosecutors were
negligent in the plaintiff’s prosecution during
the hearing of the
bail application and or in further prosecution of the plaintiff and
therefore liable for his damages.
[49]
In argument Mr Cole, counsel for the plaintiff, submitted that
sergeant Njotini, in the first place, was confused,
she imputed the
allegations of Konono being seen raping the victim as being relevant
to the plaintiff.  Sindiswa’s statement
did not implicate the
plaintiff, so was that of the victim.
UNLAWFUL
ARREST AND DETENTION
[50]
It is common cause that Sindiswa was not an eyewitness to and did not
directly implicate the plaintiff with rape.
However, according
to the arresting officer, circumstantial evidence linked him to the
commission of the crime.  Sergeant Njotini
said she verified
what was contained in the statements. She said, initially she had a
weak case.  Sindiswa’s interview was
satisfactory with regard
to the allegations against the plaintiff.  When asked by the
court, she said she formulated the reasonable
suspicion that the
plaintiff committed the offence, after she interviewed Sindiswa.
Sergeant Njotini said she concluded that, despite
the fact that
Sindiswa did not suspect anything before she entered the room,
subsequent to witnessing the rape by Konono, Sindiswa
must have
associated the plaintiff’s being half naked and coming out of the
room with the rape. Sindiswa placed him on the scene.
[51]
The removal of the plaintiff for his own safety is disputed.
That would account for entire period from when
he was taken away
until the time sergeant Njotini said she effected the arrest.
According to the plaintiff he was told that
he was being arrested of
the rape of K[,,,], which he denied.  He was told he would
explain at the police station.  The
plaintiff said his statement
was minuted the following day.  Sergeant Njotini said she
interviewed the plaintiff but charged
him the following day, because
it was already late.  It is not in dispute that the plaintiff
was questioned before a decision
to arrest was made.  What is
disputed is the actual moment, whether it was before he got to the
police station or it was at
the police station together with outcome
of that questioning.
[52]
Arrest is
prima facie
unlawful.  It infringes rights to personal liberty.  In
Duncan v Minister of Law and Order
1986 (2) SA 805
at 818 H-I the Court said that once the peace officer
has on reasonable grounds entertained a suspicion that the arrestee
committed
an offence, she may properly exercise a discretion whether
to arrest or not.  The test for the reasonable suspicion is
objective.
[53]
Even though the plaintiff denied in oral evidence that there were
many people when he was arrested, in his particulars
of claim he had
pleaded that it was in full view of the members of the public.
H Further, he could not deny that there were
many people at K[,,,]’s
homestead.  According to sergeant Njotini she had to call for a
backup because the people were angry.
The probabilities in this
regard favour sergeant Njotini, in that, initially, she took the
plaintiff in order to protect him and
interview him, away from the
said people.
[54]
The statement of K[,,,] naming the plaintiff’s nickname or the fact
that Sindiswa implicated the plaintiff, was
confirmed by Sindiswa in
a subsequent interview.   Sindiswa’s further statement
which stated that, she met the plaintiff
half naked, on the way out
of the room she was about to enter where she witnessed the rape, was
what sergeant Njotini exercised her
discretion to arrest the
plaintiff on.  The suspected offence was gang rape, she said
they do not issue warning for such offences,
the suspects would be
released by court.
[55]
The plaintiff’s being half naked had to be contrasted with the
explanation that he was feeling hot.  Constable
Njotini said
there were not many people in the room he had been. Unfortunately, it
was not established whether the shirt the plaintiff
left in the said
homestead was the one that was retrieved from the room where the
victim was raped.  However, circumstantially,
in cannot be said
it was unreasonable to associate his being half naked with what was
happening in the room he was suspected of having
been seen coming
from.  He was also named in K[,,,]’s statement.  In the
criminal trial, during the evidence of K[,,,],
he was referred to
with his nickname.  In this court when the issue of the nickname
was clarified, no objection was recorded.
In addition to what
was in the statements, sergeant Njotini said her suspicions and that
the case was no longer weak were fortified
after the interview with
Sindiswa.  Further, despite the fact that the manner in which
the plea was drafted is not a model one,
however, from the averment
repeated paragraph 6 above, it does appear that the plaintiff was
arrested to secure his attendance in
court.   I am
therefore satisfied that after formulating the reasonable suspicion
that he had committed the offence, sergeant
Njotini exercised her
discretion to arrest him to secure his attendance in court on a
charge of a serious offence.  She said
she could not warn him to
attend because of the nature of the offence. Indeed, it does appear
that the said decision would not have
been within the power of a
junior police officer. Sergeant Njotini had to take the plaintiff to
court for it to make a determination
whether the plaintiff should be
detained or released.
[56]
In my view the onus resting on the defendant for the arrest of the
plaintiff has been discharged.  I am of the
view that, the
arrest at that stage was not unlawful, it met the requirements of
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[57]
In the particulars of claim it is averred that no
prima
facie
case existed against the
plaintiff.  The plaintiff did not testify regarding the
enrolment of the matter.  In that regard
it is apposite to quote
what was said in
S v Lubaxa
2001 (4) SA 1251
SCA.   The Court dealt with the exercise
of discretion in
section 174
of
Criminal Procedure Act applications
.
At paragraph 19 the Court stated:
“
Clearly
a person ought not to be prosecuted in the absence of a minimum
evidence upon which he may be convicted.  That is recognised
by
the common-law principle that there should be a ‘reasonable and
probable’ cause to believe that the accused is guilty of an
offence
before prosecution is initiated.”
[58]
In my view, both Mr Buso and Ms Maarman’s evidence about whether
there was a
prima facie
case against the plaintiff, at least, upon the enrolment of the
matter cannot be faulted.  It has been transcribed at length
above.  At this stage, the warning statement was also part of
the record.  The warning statement refers to 6 December at
02h00.  I accept that 6 December was the date when the event
started, 02h00 refer to early hours of the 7
th
December.   It is consistent with the time the plaintiff
said he was at the ceremony.  The preliminaries that the
plaintiff was not properly taken through with, would have been
relevant to the issue  of admissibility of the statement
at trial.  Ms Maarman explained that she thought that when the
plaintiff said he did not understand the charges, he meant that
he
was denying the charge.  What he said in the statement mattered
for enrolment purposes.
[59]
Further, immediately following the first appearance no evidence was
tendered about further appearances until the hearing of the
bail
application.  The issue is of existence of
prima
facie
case has been linked to the
opposition of the plaintiff’s application for bail. This relates to
both defendants, regarding the
information placed before court by the
first and second defendants, during the hearing of the bail
application.
EXTENDED
DETENTION
[60]
With regard to the bail proceedings on 3 February 2014, the landscape
changed, in my view.  The pleaded case
of negligence also
appears from paragraph 11 of the particulars of claim, contrary to
the submissions by Miss Nhantsi. Regarding
evidence on the said
negligence, the plaintiff said the prosecutor’s address would not
be interpreted to IsiXhosa. However, Ms
Maarman testified at length
about what presentations she made when she opposed the bail
application.  Those became common cause.
[61]
In
Carmichelle v Minister of
Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC).  At paragraph 72 D-E therein it was
stated:
‘
However,
prosecutors have always owed a duty to carry out their public
functions independently and in the interests of the public.
Although
the consideration of bail is pre-eminently a matter for the presiding
judicial officer,
the
information available to the judicial officer can but come from the
prosecutor. He or she has a duty to place before the court
any
information relevant to the exercise of the discretion with regard to
the grant or refusal of bail and, if granted, any appropriate
conditions attaching thereto.’
[62]
In bail proceedings, it is true that the plaintiff bore the onus to
prove exceptional circumstances justifying his
release on bail.
However, the magistrate was not advised that the state was to rely on
circumstantial evidence; that the complainant
had no version, the
reference to the plaintiff was based on hearsay evidence, that the
DNA result was still outstanding and that
the plaintiff’s statement
was exculpatory and had compliance problems.
[63]
Ms Maarman relied on the unavailability of the police docket for her
inability to place what was contained therein.
That had little
to do with the plaintiff.  Sergeant Njotini, even in her
absence, had to ensure that she had a contingency plan
in place,
regarding the taking of the docket to the prosecutor and any other
issue the prosecutor would have wanted to confer with
the police
about.  Indeed, it transpired that the conference was necessary,
when the police said they were ignorant about the
issue of existence
of alternate address. Mr Buso eventually managed to get it, Ms
Maarman could have also done what Mr Buso did.
[64]
The court in
Carmichelle
,
supra, at paragraph 73 implores us to take the challenges the
prosecutors face, especially in the lower courts.  However, in
circumstances where Ms Maarman had said, in circumstances where the
plaintiff was represented, she would only disclose the weakness
of
the case, if the court enquired about such, it is difficult to
imagine that she would have done more, in an effort to bring relevant
information to the attention of the court.   She also said
it was a schedule 6 offence, the plaintiff had to discharge
the onus
regarding exceptional circumstances and then the magistrate would
make the determination.  She had no regard of the
fact that the
determination would be made by the magistrate, after she or he had
been armed with all relevant information.
[65]
At paragraph 74 in
Carmichelle
,
supra, the court said that there seems to be no reason, in principle,
why a prosecutor who has reliable information should not be
held
liable for the consequences of negligent failure to bring such
information to the attention of the court. After the police docket
had been brought to Ms Maarman, her testimony was that she disclosed
information about the
prima facie
case against the plaintiff only, and not the weaknesses in the case.
Another difficulty relates to what the basis of the information
about
threats by the plaintiff to the state witnesses was.  Captain
Silwana, who sergeant Njotini said she obtained it from
testified
that, he did not have knowledge about the said threats. The
plaintiff’s being a flight risk was based on the seriousness
of the
offence.  For that reason, the magistrate had to be informed of
the weaknesses in the case.  Conditions could have
also been
imposed to address concerns about fleeing.
[66]
Further, his detention to protect the plaintiff had been addressed by
the option of realising him to his grandmother’s
address, a fact
that both captain Silwana and sergeant Njotini said they did not know
about.  Sergeant Njotini said she would
have verified it and
would not have opposed the bail application.  Captain Silwana
said so as well.  That information was
with the prosecutor’s
knowledge, contained in the plaintiff’s affidavit, she ought to
have informed the police about it.
[67]
Further, she had to disclose to the magistrate all weaknesses about
reliance on circumstantial hearsay evidence so
that the magistrate
properly exercise the discretion relating to the granting of bail.
The plaintiff, amongst others had stated
that he was going to plead
not guilty to the charge, even though he did not elaborate.
[68]
In
Minister of Justice and
Constitutional Development v X
(196/13)
[2014] ZASCA 129
(23 September 2014) at paragraph 18, 21, 29 and 36
the court laid the basis for and concluded that information that was
not disclosed
to the magistrate had a bearing in the decision of
whether or not to release the appellant on bail.  The court
found that conduct
to have been wrongful and negligent.
[69]
The further detention of the plaintiff continued until 19 May 2015.
The DNA results were available on 14 March
2014.  Ms Njotina
said she received the results on 7 August 2014.  She said she
informed the prosecutor on the same date.
Again according to
Carmichelle’s
case, supra, when that information was not passed through, the Court
could not exercise its discretion with regard to further detention
or
granting of bail, at any stage after the initial refusal of the
application. The plaintiff had no way of having knowledge about
that
information.
[70]
In my view, in the circumstances of the present case, a reasonable
magistrate armed with all that relevant information
would most
probably not have remanded the plaintiff in custody on 6 February
2014 and even more so, after the DNA results came forth.
With
regard to causation, the harm suffered by the plaintiff as a result
of his detention would not have occurred but for that conduct
of the
police and the prosecutors.  Their conduct was the direct cause
of his continued detention.
MALICIOUS
PROSECUTION
[71]
In order for the plaintiff to succeed in a claim for malicious
prosecution he had to allege and prove that the defendants
set the
law in motion against him; the proceedings were without reasonable
cause; with malice and the proceedings were terminated.
In
G
[…] C […] and another v Minister of Safety
and Security and another
(case no 205/2019) [2021] ZASCA012 delivered on 3 February 2021 at
paragraph 24, the court in the majority judgment addressed averments
relating the prosecutor’s allegedly wrongful conduct in the
opposition of a bail application.  Its finding there, in my
view,
indicates that even with regard to that complaint, the cause of
action is malicious prosecution.
[72]
The plaintiff’s particulars of claim made the relevant allegations
for malicious prosecution against the first
defendant only.  In
order to make a case for malicious prosecution the plaintiff is
required to allege and prove the elements
of delict against
the second defendant.
[73]
Section 20
of National Prosecuting Authority Act provides:
‘
(1) The power, as contemplated in
section 179 (2) and all relevant sections of the Constitution, to –
(a)
institute and conduct criminal proceedings
on behalf of the State;
(b)
carry out any necessary functions
incidental to instituting and conducting such criminal proceedings;
and
(c)
discontinue criminal proceedings, vests in
the prosecuting authority and shall, for all purposed, be exercised
on behalf of the Republic.’
[74]
The role of the police in initiating the criminal proceedings cannot
be faulted in the light of what has already
been analysed with regard
to existence of a
prima facie
case.  That role ended and the rest of the prosecution was
pursued by the prosecutors, after they were handed with all the
information
relating to the matter.  The fact that the
prosecutors decided that they had a strong case until midway the
trial was not dependant
on what they were told by the police.
Mr Buso said he interviewed his main witness, Sindiswa.  It may
well be that he
failed to scrutinise the compliance issues with
regard to warning statement, and was erroneously not furnished with
DNA results.
However, he said he was confident of his witness
until the witness showed signs of loss of interest in the witness
box.  I am
therefore not of the view that, during the period the
police officers were actively involved in the proceedings, there was
probable
cause for the plaintiff’s initial prosecution.
[75]
I am also of the view that the claim of malicious prosecution was not
instituted against the second defendant, whose
officers were
responsible for the prosecution of the plaintiff.  It is
therefore not necessary to interrogate the conduct of
the prosecutors
any further.
RESULT
[76]
In the circumstances, the plaintiff succeeds in his claim for
unlawful detention from the date of the refusal of
bail to the date
of his release.  In respect of the said period the first
defendant is held liable for the police officer’s
failure to
discharge their legal duty to verify and place all relevant
information before court for the proper exercise of the courts
discretion whether to grant or refuse bail.
QUANTUM
[77]
The quantum that was persisted with, during the hearing relates to
arrest, detention and malicious prosecution.
The quantum that
requires determination therefore is in respect of successful claim of
detention from 6 February 2014 to 19 May 2015.
The plaintiff
claimed R2 million rand for the period from 7 December 2013.
During argument a sum of R4 million rand was suggested
for the entire
period of detention.  The actual period for which the defendants
have been held liable for should discount some
sixty one (61) days,
preceding the finalisation of the bail application.
[78]
In
Rahim v The Minister of Home Affairs
2015 (4) SA 433
(SCA) at paragraph 27 the court stated:
‘
The deprivation of liberty is
indeed a serious matter.  In cases of non-patrimonial loss where
damages are claimed the extent
of damages cannot be assessed with
mathematical precision.  In such cases the exercise of a
reasonable discretion by the court
and broad general considerations
play a decisive role in the process of quantification.  In cases
involving deprivation of liberty
the amount of satisfaction is
calculated by the Court
ex aequo et
bono
.
Inter
alia
the following factors are relevant
(i)
circumstances under which the deprivation
of liberty took place;
(ii)
the conduct of the defendants; and
(iii)
the nature and duration of the
deprivation.’
[79]
In
Minister of Safety v Tyulu
2009 (5) SA 85
(SCA) paragraph 26 the Court said:
‘
In the assessment of damages for
unlawful arrest and detention, it is important to bear in mind that
the purpose is not enrich the
aggrieved party but to offer him or her
some much-needed s
olatium
for his or her injured feelings.  It is therefore crucial that
serious attempts be made to ensure that the damages awarded are
to
ensure that the damages awarded are commensurate with the injury
inflicted.  However, our courts should be astute to ensure
that
the awards they make for such infractions reflect the importance of
the right to personal liberty and the seriousness with which
any
arbitrary deprivation of personal liberty is viewed in our law.
I readily concede that is it impossible to determine an
award of
damages for this kind of
injuria
with any kind of mathematical accuracy.  Although it is always
helpful to have regard to awards made in previous cases to serve
as a
guide, such an approach if slavishly followed can prove to be
treacherous …’
[80]
The plaintiff was kept in police cells throughout his detention,
those are designed for short transitional stay.
It was very
cold in winter.  He sat on a cement bench and slept on cement
floor.  Food was scarce, inmates fought over
it.  It was
particularly difficult for him as the problem in his leg caused his
movement to be slow.  Even when he received
his ration it was
not timeous, and posed challenges in as far as it concerned the
taking of his medication.  He shared a communal
cell with
smokers, whilst he was a non-smoker.  He had no outside view.
He was hurt, because upon his release, members
of the community
called him a rapist.  He also lost his lover.  I also
consider that he had to contend with being unwell
during his
incarceration.
[81]
I have had regard to previous awards, in particular
Msongelwa
v
Minister
of Police
2020 (2) SACR 664
(ECM) the
plaintiff spent 158 days in custody, he was also shot at during his
arrest.  He was awarded a sum of R5 million. In
Zealand
v Minister of Justice and Constitutional Development
2009 JOL 23423
(SE), the plaintiff spent extended detention of four
(4) years ten (10) months after the success of the appeal.  On
29 October
2008 the award therein was R2 million.  In the
circumstances of this case, I regard the sum of (One million six
hundred thousand)
R1 600.000.00 as an appropriate award for the
relevant damages in this matter.
In
the result
1.
The first defendant is hereby ordered to
pay the plaintiff damages in the sum of (One million six hundred
thousand) R1 600.000.00
in respect of the period of extended
detention from 6 February 2013 to 19 May 2014.
2.
The first defendant is hereby ordered to
pay interest on the said amount at the prescribed rate from the date
of judgment to the date
of payment.
3.
The first defendant is hereby ordered to
pay costs of suit relevant to the claim of unlawful detention.
4.
The first defendant is hereby ordered to
pay interest at the prescribed rate from fourteen (14) days from the
date of taxation to
the date of payment.
B   MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiff        :
Mr S H Cole
Instructed
by

:
Messrs Magqabi Seth Zita Incorporated
No. 9 St Georges Road
Southernwood
EAST LONDON
c/o  Messrs Keightley Sigadla
Incorporated
60 Cumberland Street
MTHATHA
Counsel
for the 1
st
defendant     :
Mr P Dukada
Instructed
by

:
The State Attorney
Broadcast House
Sisson Street
Fortgale
MTHATHA
Counsel
for the 2
nd
defendant         :
Ms  N
O Nhantsi
Instructed
by                                    :
National Director of Public Prosecutions
MTHATHA