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[2020] ZALMPPHC 12
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Mothata and Others v Minister of Police and Others (1676/2015, 1678/2015, 1072/2015, 283/2018) [2020] ZALMPPHC 12 (28 February 2020)
REPUBLIC
OF SOUTH AFRICA
INTHE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE
NO: 1676/2015,
1678/2015,
1072/2015, 283/2018
28/2/2020
In the matter between:
MOTHATA MASHIBA ZACHARIAH
FIRST PLAINTIFF
MABOTJA THABO ALPHEUS
SECOND PLAINTIFF
SEKWADI COLLINS LEKATELA
THIRD PLAINTIFF
RAMAHLAHA BOITUMELO
FOURTH PLAINTIFF
And
MINISTER OF POLICE
FIRST
DEFENDANT
INDEPENDENT POLICE
INVESTIGATIVE DIRECTORATE SECOND
DEFENDANT
EDWARD MAPHETO
THIRD DEFENDANT
NATIONAL
PROSECUTING AUTHORITY
FOURTH DEFENDANT
JUDGMENT
MAKGOBA
JP
[1]
The
Plaintiffs instituted actions for damages arising out of alleged
unlawful arrest and detention of the Plaintiffs by a member
of the
Independent Police Investigative Directorate ("IPID") and
alleged malicious prosecution by members of the National
Prosecuting
Authority ("NPA"). The Third Plaintiff ("Sekwadi")
instituted only a claim for unlawful arrest
and detention and not the
claim for malicious prosecution.
[2]
The
Plaintiffs instituted separate actions under different case numbers.
The four cases were ultimately consolidated and heard together
under
Case no. 1676/2015 at the trial which served before this Court on the
3
rd
,
4
th
, 6
th
and 18
th
February 2020. At the heart of this matter the Court is called upon
to decide whether Plaintiffs' arrest without a warrant was
lawful and
justified in the circumstances and whether the subsequent prosecution
was justified.
[3]
The
following facts are common cause and not disputed:
3.1.
The Plaintiffs are all Police Officers
stationed in Polokwane who after the arrest of one Theophilas Ratau
on 20 May 2013 arrested
the second suspect McDonald Monyela. The
latter led the Police Officers to a certain house in Ladanna,
Polokwane where the deceased,
Onyebuchi lweaku stayed.
3.2.
The Police Officers were in search of a
cellphone that was a subject of a criminal investigation involving
Theophilas Ratau ("Ratau")
and McDonald Monyela
("Monyela"). On their arrival at the house of the deceased
they found the cellphone, placed the
deceased under arrest and placed
him in the Police vehicle, a Quantum Cambi.
3.3.
They drove to the Police Station and on
their arrival the deceased, Onyebuchi lweaku was certified dead. Two
post mortem examinations
were conducted( b y Dr Selatole and Dr
Perumal and the Plaintiffs were subsequently arrested, charged and
prosecuted for the alleged
murder of the deceased.
3.4.
The Plaintiffs were all found not guilty
and discharged by this Court before Baqwa J on 2 December 2014 in
terms of section 174
of the Criminal Procedure Act 51 of 1977
("CPA"). It is against this background that each Plaintiff
instituted the present
action proceedings against the Defendants.
CLAIM 1: UNLAWFUL ARREST AND
DETENTION
[4]
It
is well-established that the onus rests on the arresting officer to
prove the lawfulness of the arrest. This is so because as
Rabie CJ
stated in
Minister of Law and Order &
Others v Hurley and Another
1986 (3) SA 568
(A)
at
589E - F that an arrest constitutes an interference with the liberty
of the individual concerned, and 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.
[5]
In
the present case the arresting officer is Mr Edward Mapheto who
effected the arrests on the Plaintiffs on the 29 May 2013. Mr
Mapheto
was therefore the Defendants' main witness who testified for the
Defendant with regard to the justification of the Plaintiffs'
arrest
and detention.
Factual Matrix
[6]
Mr
Edward Mapheto is a senior investigating officer attached to IPID in
Polokwane. He was assigned the case of the alleged murder
of
Onyebuchi lweaku ("the deceased"). He received a case
docket which contained some statements of his colleagues, Ms
Ramoba
and Mr Mashapu. He interviewed and took the statements of witnesses
being Ratau, Monyela and Mr Miracle Okonye on 23 May
2013. The latter
was found together with the deceased in the house at Ladanna when the
deceased was arrested by the Plaintiffs
on 20 May 2013.He further
attended the post mortem conducted by Dr Perumal and received his
report dated 26 May 2013. On account
of the statements of Ratau,
Monyela and Okoye and the findings of Dr Perumal that the cause of
death is consistent with smothering,
he decided to arrest the
Plaintiffs and charged them with murder of the deceased.
[7]
Mr
Mapheto stated further that he arrested the Plaintiffs on the basis
of the provisional report of Dr Perumal and also on the basis
of the
allegations that the Plaintiffs were visiting Ratau and Monyela in
the police cells and intimidating them not to give information
concerning the deceased's death. He stated that he found it to be in
the interest of justice, given the seriousness of the matter,
to
arrest the Plaintiffs.
He stated that he arrested the
Plaintiffs despite the fact that the initial post mortem conducted by
Dr Selatole stated that the
cause of death was unascertainable
because the report of Dr Perumal, a specialist, indicated that the
death was consistent with
smothering. On the other hand the
statements of the witnesses in the docket indicated that the deceased
was smothered with a tube.
[8]
The
first post mortem report was issued by Dr Selatole on 23 May 2013. Mr
Mapheto testified that he did not have Dr Selatole's findings
at the
time of the arrest. He based his decision to arrest on the post
mortem report of Dr Perumal who did an independent autopsy
on the 24
May 2013. Both post mortem reports described the cause of death as
either unascertainable or no anatomical cause of death.
However both
reports do make mention that asphyxia cannot be ruled out and that
the cause of death was consistent with smothering.
Mr Mapheto
conceded that he informed both pathologists that the deceased was
allegedly tortured and smothered, the information
which he derived
from the contents of the witnesses' statements, that is Ratau,
Monyela and Okoye.
[9]
In
conclusion Mr Mapheto stated that he did not have prior knowledge of
the Plaintiffs and the witnesses including the deceased.
He did not
have any ulterior motive to arrest the Plaintiffs. That the arrest
according to him was based on a reasonable suspicion,
based on the
contents of the docket and his investigations, that the Plaintiffs
have committed an offence of murder. Upon executing
his duty of
arrest of the suspects, he concluded, he handed over the case to the
Director of Public Prosecutions for a decision
whether to prosecute.
[10] This
Court does not find any fault with the evidence of Mr Mapheto. His
testimony is straightforward
and he was able to answer questions
truly and honestly during cross-examination. His credibility as a
witness has not been tarnished
and the Court finds him to be a
truthful and reliable witness.
[11]
It is appropriate that the
evidence regarding the contents of the statements made to Mr Mapheto
by Ratau, Monyela and Okoye as well
as the contents of the two
postmortem reports by Dr Selatole and Dr Perumal be put on record.
After all, these statements and reports
constitute the information
relied on by Mr Mapheto to decide to effect the arrest of the
Plaintiffs. The statements of Ratau and
Maonyela were handed in as
Exhibits "B" and "C" respectively. The post
mortem report of Dr Selatole is Exhibit
"D" and that of Dr
Perumal is Exhibit "E". Okoye's statement was handed in as
Exhibit "L".
[12]
Ratau:
After
his arrest he was put inside the police combi and covered with a tube
over his face. They arrived at a certain house where
the police
alighted with Monyela and went into the house. He remained in the
police combi with one policeman. He heard a sound
of beating but was
not clear as his ears were covered with a tube. After a while the
police who went into the house came back with
an unknown person who
is the deceased. The tube was removed from him. The unknown person
(deceased) was weak and breathing very
hard. His clothes were wet. He
did not know if it was water or urine. The deceased was seated on the
floor inside the combi, rested
his head on the seat and breathing
fast.
The other police officer who was
wearing adidas track suit, grey in colour, took out a pistol and
started to hit the deceased very
hard on the head with the but of the
pistol. He saw the deceased bleeding and his head falling between the
seats. The police officer
pulled him and when he left him the
deceased fell down again.
The police officer who assaulted
the deceased with a firearm went out to Nandos shop and bought 500ml
bottle of water and poured
the water over the deceased but that did
not help. They drove to the police station. At the police station
they alighted the combi
and left him and Monyela inside with the
deceased. The EMS came and certified the deceased dead.
[13]
Monyela:
Inside
the combi were five police officers in civilian clothes, Ratau and
himself. One of them asked him where is the phone and
he said he
forgot it at a Nigerian boy in Ladanna. They said he was lying and
will reveal the truth. They told Ratau to sleep so
that he cannot see
where they were going. They drove to a certain bush outside
Polokwane. On their arrival they stopped the car
at the gate. They
ordered him to alight and he was still handcuffed. They started to
kick him with booted feet on the head and
all over the body. One of
them kicked him on his private parts. He heard one of the police
officers saying he is bleeding from
the ear and they stopped
assaulting him.
They instructed him to take them
to that Nigerian to collect the said cellphone. He pointed out to
them the room of the Nigerian
boy. They entered and found one guy
relaxed on the sponge mattress being alone. He told the police that
this was not the one he
gave the phone. They said this one must
produce the drugs.
The deceased said he does not know
and they said he is lying. They covered his head with a tyre tube.
They started to kick him with
booted feet and they took the handcuffs
from him and handcuffed the deceased from the back. They started to
kick him all over the
body until he fainted. One of them said he
fainted. One of the policemen brought water and poured same over the
deceased and he
was awaken. They started to hit him with a chair all
over his body saying he is playing he will tell the truth.
They ordered him to put the
trouser on and he assisted him to put the trouser on. Then they went
to the combi. The tube was removed
from the deceased. The deceased
was unable to walk properly and two police officers held him both
sides and assisted him to the
combi. They threw him inside the combi
and one of them hit him very hard on the head with the butt of the
pistol. He told them
that this man is dead and they said how do you
know a dead person. They drove away.
While at Nandos police bought
500ml water and poured same over the deceased but he never woke up.
They drove to the police station
and while there, the EMS arrived and
certified the deceased dead.
The police officers involved he
used to see them in town. He can point them out if he can see them.
The deceased never fought with
the police. The police were looking
for drugs which they did not find.
[14]
Okoye:
He
stated that on 20 May 2013 at about 18h30 he was at home with
deceased (Onyebuchi lweaku) who is his cousin busy watching a movie
on a laptop. People knocked, entered and told them that they are
police. They were not in police uniform. On their entry in the
house
they started to beat them without telling them what wrong they had
done. During the assault only one guy concentrated on
him. About four
or five police officers were busy assaulting the deceased with fists
and open hands all over his body. The deceased
was seriously crying
and shouting to them saying you police are killing me. During the
assault on the deceased one police officer
managed to cover his head
with a plastic bag. By that time he managed to run away from the room
and went out. He did not know what
happened in the room during his
absence. Outside he saw a combi parked and suspected that the police
used that combi. He stood
at a distance of about 50m away from the
house and saw those people coming out of the house holding and
helping the deceased to
walk. The deceased was very weak and could
not walk on his own. He did not go back to the house because he was
scared of those
police. He slept at his friend's place around town.
He went back to the house on Wednesday 22 May 2013.
[15]
Dr Selatole Post Mortem Report:
The chief post-mortem findings
made by the doctor on the deceased's body were:
•
Abrasions on elbows, wrists and scalp.
•
Mild subcutaneous bruises over the back.
•
Rib fractures, mild lung contusions.
•
Congested organs with petechial
hemorrhages.
•
Pen-pancreatic hemorrhage, liver
hemorrhage.
As a result of her observations Dr
Selatole came to the following conclusion:
(a)
that death occurred on 2013-05-20
as she was informed prior to her examination and
(b)
that the cause / causes of death
was / were
•
UNASCERTAINABLE
GROSSLY, AWAITING HISTOLOGY AND TOXICOLOGY.
[16]
Dr Perumal Post Mortem Report:
The chief post mortem findings
made by the doctor were:
•
Congested organs.
•
No pathology identified macroscopically
to account for death.
•
No direct trauma to the organs to
account for death.
•
Superficial lacerations of the buccal
mucosa.
•
Bruises in the subcutaneous tissue of
the back.
•
Bruise of liver, pancreas, right hemi
diaphragm and lower lobe of right lung.
•
Historical examination of tissue did not
reveal any natural disease to account for death but revealed
pulmonary oedema.
On the cause of death Dr Perumal
concluded as follows:
As a result of my observation, a
schedule of which follows, from post mortem examination, historical
examination and toxicological
analysis, I concluded: No anatomical
cause of death but is
CONSISTENT WITH SMOTHERING.
Mechanism of death: HYPOXIA
[17]
Given the totality of the evidence as
contained in the witnesses statements and the contents of the two
post mortem reports it remains
to be seen whether a reasonable police
officer or investigator in the position of Mr Mapheto would have
suspected and / or believed
that a crime had been committed which
justified the arrest of the Plaintiffs.
I proceed to set out the evidence
of the Plaintiffs before deciding on this issue.
[18]
All the four Plaintiffs testified and
gave the factual background relating to their arrest, detention and
alleged malicious prosecution.
Their version is basically the same.
All of them were summoned to the offices of IPID in Polokwane on the
29 May 2013 where they
were arrested by Mr Mapheto on a charge of
murder and two counts of attempted murder. They were released on bail
on 21 June 2013
after an entire period of detention for close to 24
days. The Defendants admitted the arrest (without warrant) and
subsequent detention
of the Plaintiffs but allege that the arrest was
lawfully effected in terms of the provisions of Section 40(1)(b) of
the Criminal
Procedure Act 51 of 1977 ("the CPA").
[19]
The Plaintiffs submitted a comprehensive
written representation to the Fourth Defendant (NPA), giving reasons
why the prosecution
is destined to failure. This notwithstanding, the
NPA decided to proceed with the prosecution. The said written
representation
stands as evidence before this Court and same is taken
into consideration in the present proceedings.
[20]
Upon their arrest on 29 May 2013 all the
Plaintiffs gave warning statements to Mr Mapheto explaining their
role in the arrest and
subsequent death of the deceased. Their
statements are exculpatory and obviously in conflict with the
witnesses statements of Ratau,
Monyela and Okoye.
For the sake of convenience I
shall set out hereunder the version presented by the Fourth
Plaintiff, Captain Boitumelo Ramahlaha
which represents the version
of all the Plaintiffs herein.
[21]
Captain Ramahlaha in summary testified
as follows:
21.1.
On
the 20 May 2013 he arrested Ratau and Monyela and Monyela took the
Plaintiffs to the house of the deceased. He instructed the
deceased
to stand up so that he could search the room. He found the stolen
cellphone on the deceased but not the firearm. The said
red cellphone
belonged to a female SAPS member that was murdered. The deceased
resisted arrest and the Plaintiffs used minimal
force to get him
under control. They struggled for approximately 5 minutes and then he
handcuffed the deceased. They went out of
the room and then the
deceased still resisted arrest, slipped and fell on a cupboard. On
their way to the SAPS station the deceased
started gasping for air.
While driving to the SAPS station they called the ambulance. When
they reached the Police Station the
deceased was declared dead.
21.2.
He
received a call on 28 May 2013 and was summoned by Mr Mapheto to be
at the offices of IPID on the 29 May 2013. During interrogations
he
was told that he murdered the deceased. He had to do a warning
statement but realized that there were already contradictions
in the
statements of Monyela, Ratau and Okoye with regard to time frames
which did not correlate with the AVL reports of the police
combi they
drove in.
21.3.
Mr
Mapheto, being the senior investigating officer, never requested the
AVL report (vehicle movement report) during his investigation.
Mr
Mapheto admitted during cross-examination that he knew about the
existence of these AVL reports. According to Captain Ramahlaha
contradictions in the statements of Ratau and Monyela with regard to
their whereabouts during the assault confirms that their evidence
was
not credible.
21.4.
Captain
Ramahlaha testified that he was arrested and detained on the 29 May
2013 in the presence of his colleagues, seniors and
community. There
was no warrant for his arrest. He testified that the arrest was not
executed lawfully and referred to Standing
Order (G) 341 of the SAPS
as well as
Section 40
of the
Criminal Procedure Act. They
were
detained in inhumane circumstances in a police cell which could only
house four people. There was no hot water and no electricity.
They
had to sleep on the floor. They were transported to and from the
Court with common criminals and convicted persons.
[22]
It is common cause that only three
police officers, First, Second and Fourth Plaintiffs went into the
house with Monyela to search
and arrest the deceased. The Third
Plaintiff (Sekwadi) who was the driver of the police combi remained
outside in the vehicle with
Ratau.
[23]
In his evidence Captain Ramahlaha stated
that en route to the Police Station he noticed that the deceased was
wheezing but could
not detect any injuries on the deceased. He
instructed the driver to stop the vehicle and rushed to Nandos shop
to get 500ml bottle
of water with which he sprinkled the deceased in
an attempt to arouse him. He stated further that there was no scuffle
in the combi.
The deceased had abrasions on the elbows and the head
that could have been from the scuffle in the house during the arrest.
He denied that the deceased could
not walk to the police vehicle and had to be assisted. He denied
dragging the deceased to the
vehicle but stated that he held his
pants at the back to lead the deceased to the vehicle.
[24]
In addition to the evidence of Captain
Ramahlaha, the First Plaintiff (Mothata) testified that the deceased
became angry after he
was placed under arrest and minimum force was
used to arrest him. The deceased fell on a cupboard in the sitting
room and they
assisted him to get up and walked to the vehicle. In
the vehicle the deceased sat on the floor of the combi while the
police sat
on the seats. He stated that the injuries sustained by the
deceased might have been sustained when the deceased injured himself.
[25]
The First Plaintiff, Mothata stated that
he was surprised by their arrest because he knew the case to be an
inquest and not a murder
case. He was hurt by the fact that his bail
was opposed. It was put to him that Ratau and Monyela might have lied
to Mapheto in
their statements that resulted in the arrest. His
response was that Mapheto ought to have investigated more.
[26]
The Second Plaintiff (Mabotja)stated
that he did not see the deceased fall on the cupboard in the dining
room. He was told by Captain
Ramahlaha that the deceased fell and he
did not see the scuffle that occurred in the dining room as he walked
ahead of the deceased,
Mothata and Ramahlaha. When it was put to him
that his arrest was due to the statements of Ratau and Monyela (which
might not have
been truthful) he responded that the investigating
officer ought to have investigated the lies told by the witnesses
before arrest
and therefore he was unlawfully arrested.
[27]
My finding with regard to the evidence
of the Plaintiffs is that there were no material contradictions
between them specifically
regarding what happened during the arrest
of the deceased and the subsequent unfolding events. In any event
there is no onus on
them to prove that their arrest was unlawful. The
lawfulness of the arrest will be determined on the question whether
Mr Mapheto,
possessed with the statements of the witnesses, Ratau and
Monyela, reasonably believed that the Plaintiffs have committed an
offence.
Law
Applicable
[28]
Section 40(1)
(b) of the CPA provides
that:
"40
Arrest by peace officer without warrant
(1)
A peace officer may without
warrant arrest any person-
(a)
.......
.. ....
(b) whom he reasonably suspects
of having committed an offence referred to in Schedule 1, other than
the offence of escaping from
lawful custody"
[29]
It is clear from
section 40(1)(b)
that
the following are the essential jurisdictional facts which have to be
present to justify an arrest without a warrant:
(a)
the arresting officer must be a
peace officer;
(b)
the arresting officer must
entertain a suspicion;
(c)
the suspicion must be that the
suspect (arrestee) committed an offence referred to in Schedule 1 ;
and
(d)
the suspicion must be based on
reasonable grounds.
See
Duncan v Minister of Law
and Other
1986 (2) SA 805
(a) AT 818G
-
H; Minister of Safety
and Security v Sekhoto & Another
2011 (1) SACR 315
(SCA) para 6.
[30]
It is trite that the reasonableness of
the suspicion of any arresting officer acting under
section 40(1)(b)
must be approached objectively. The question is whether a reasonable
person, confronted with the same set of facts, would form
a suspicion
that a person has committed a Schedule I offence -
M
v Minister of Safety and Security
2009 (2) SACR 291
(GSJ).
In
Tsose v Minister of Justice
& Others
1951 (3) SA 10
(A)
it was held that the arrest must
be with the intention of bringing the arrestee before Court. An
arrest can still take place lawfully
where the arrestor objectively
speaking, has a reasonable suspicion against the suspect
but
has
still to conduct further investigations after the arrest but before
finally deciding to charge the arrestee.
In
Sekhoto
supra, it was
held that once the jurisdictional facts for an arrest are present, a
discretion whether or not to arrest arises. Where
the exercise of
discretion is questioned, the onus to establish the improper object
of the arrestor will rest on the arrestee.
[31]
The reasonableness of the suspicion of
any arresting officer acting under
section 40(1)(b)
of the CPA must
be approached objectively. The question is whether any reasonable
person, confronted with the same set of facts
would form a suspicion
that a person has committed a Schedule I offence or not. See
Minister
of Safety and Security v Swart
2012 (2) SACR 226
(SCA) at 232. In
Minister of Safety and Security v Linda
2014 (2) SACR 464
(GP)
the
Full Court said the following:
" The question whether the
suspicion of the person effecting the arrest is reasonable must be
approached objectively. A suspicion
inherently involves an absence of
certainty or adequate proof A police officer is not expected to
satisfy himself to the same extent
as
a
Court. A
suspicion can be reasonable despite there being insufficient evidence
for
a
prima
facie case".
In Shabaan Bin Hussein and Others
v ·Chong Fook Kam and Another the Privy Council said:
" Suspicion in its
ordinary meaning is
a
state of
conjecture or surmise where proof is Jac king. "I suspect but I
cannot prove". Suspicion arises at or near the
starting point of
an investigation of which the obtaining of prima facie proof is the
end".
See
also
Minister of
Safety and Seceurity v Magagula (991/2016)
[2007] ZASCA 103.
[32]
In
Duncan
supra, Van Heerden JA said the
following at page 8188:
“
Hence
an arrest under
s
40(1)(b)
of the
present Act is not unlawful where the arrestor entertains the
required reasonable suspicion but intends to make further
enquiries
after the arrest before finally deciding whether to proceed with a
prosecution, provided it is the intention throughout
to comply with
s
50 of the Act”
.
[33]
In the present case it is common cause
that Mr Mapheto who arrested the Plaintiffs is a peace officer. The
arresting officer received
information from Ratau and Monyela that
the Plaintiffs were involved in the commission of the offence. With
this information Mr
Mapheto entertained a suspicion that Plaintiffs
were involved in the murder of the deceased. The question is whether
such a suspicion
is reasonable in the circumstances of this case.
When the peace officer has an initial suspicion, steps have to be
taken to have
it confirmed in order to make it a "reasonable"
suspicion before the arrest is made. This test was succinctly
summarized
in
Mabona v Minister of
Law and Order
1988 (2) SA 654
(SEC)
where
it was established that what is required is suspicion not
certainty.
Such suspicion must make sense
otherwise it is frivolous or arbitrary and not reasonable. Arrests
can therefore take place even
if the arrestor realised that at the
time of the arrest he does not have sufficient proof for a conviction
-
Songono v Minister of Law and Order
1996 (4) SA 384 (SEC).
Reasonableness
of the Suspicion
[34]
In
the present case Mr Mapheto was faced with the following
circumstances before he could arrest the Plaintiffs on the 29 May
2013:
34.1.
Written statements were made to
him by the witnsesses, Ratau, Monyela and Okoye that an assault took
place on the deceased at a
house in Ladanna and en route to the
Police Station.
34.2.
Ratau and Monyela made statements
to the effect that they too were assaulted and smothered with a tube.
34.3.
The post mortem reports of both
Drs Selatole and Perumal revealed that the deceased sustained
injuries like broken ribs, abrasions
on the writs, elbows and scalp.
The deceased also had bruises over the back, suffered mild lung
bruising and haemorrhage around
the pancreas and liver.
34.4.
Although the cause of death could
not be anatomically ascertained, the post mortem report of Dr Perumal
indicates that the deceased's
death is consistent with smothering and
that the mechanism of death is Hypoxia. This conclusion is in the
face of the evidence
of Ratau and Monyela that the deceased was
smothered with a tube.
[35]
In
my view and in the light of the authorities referred to above, it is
not expected of Mr Mapheto to have interrogated or cross-examined
Ratau, Monyela and Okoye in order to obtain certainty that the
deceased was indeed assaulted. He need not believe them, but all
what
was expected from him was to form a reasonable suspicion that there
had been an assault on the deceased. It remained to the
prosecution
to prove in Court that the Plaintiffs were guilty of an offence.
Whether Ratau, Monyela and Okoye told the truth or
lies in their
statements is neither here nor there. It will be asking too much from
a peace officer effecting an arrest to go all
out to establish the
truthfulness of a witness' statement before he can arrest a suspect.
[36]
The
test of whether the suspicion is reasonably entertained within the
meaning of section 40(1)(b) of the CPA is objective. The
enquiry is
therefore: Would a reasonable man in Mr Mapheto's position and
possessed with the same information, have considered
that there were
good and sufficient grounds for suspecting that the Plaintiffs were
guilty of the offence for which he sought to
arrest the Plaintiffs?
In evaluating such information a reasonable man would bear in mind
that the section authorises drastic action.
It authorizes an arrest
on the strength of a suspicion and without the need to issue out a
warrant, that is something which otherwise
would be an invasion of
private rights and personal liberty.
[37]
The
case of
Mabona v Minister of Law and
Order,
supra is instructive in this
regard. Jones J said the following at page 658G - H:
"The reasonable man will
therefore analyse 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 which
will justify an arrest.
This
is not to say that the information at his disposal must be of
sufficiently high quality and cogency to engender in him a conviction
that the suspect is in fact guilty.
However,
the suspicion must be based upon solid grounds )
"
(My underlining)
[38]
Granted, at the prosecution or trial of the Plaintiffs the witnesses
Ratau and Monyela were found to
be untruthful and contradicted
themselves in their evidence. Likewise, the cause of death of the
deceased could not be conclusively
proved on the basis of the
available post mortem reports. This was at the trial where the
witnesses were subjected to an intensive
cross examination. It
cannot be expected of Mr Mapheto to have embarked on such an exercise
when he decided to arrest the
Plaintiffs on 29 May 2013.
Discretion to Arrest
[39] A
peace officer who harbours a reasonable suspicion that an offence was
committed has a discretion
whether or not to arrest the offender. The
discretion whether to arrest or not must be exercised properly.
[40]
In
Minister
of Safety and Security v Sekhoto,
supra,
the Supreme Court of Appeal, per Harms DP made the following remark:
"[28] Once the
jurisdictional facts for an arrest, whether in terms of any paragraph
of s 40(1) or in terms of
s
43 are present,
a
discretion
arises.
_
The question 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
whether or not to
arrest arises. The officer, it would be emphasised, is not obliged to
effect arrest."
"[40]
.....
An official who
has discretionary powers must, as alluded to earlier, naturally
exercise them within the limits of the authorizing
statute read in
the light of the Bill of rights. Where the statute is silent on how
they are to be exercised that must necessarily
be deduced by
inference in accordance with the ordinary rules of construction,
consonant with the Constitution, in the manner decribed
by Langa CJ
in Hyundai."
[41]
It is significant to note further
remarks of Harms DP in
Sekhoto
case
at page 327b - c where he said:
"Once the required
jurisdictional facts are present, the discretion or not to arrest
arise. Peace officers were entitled to
exercise this discretion as
they saw fit, provided they stayed within the bounds of rationality.
The standard was not breached
because an officer exercised the
discretion in
a
manner other than
that deemed optimal by the Court. The standard is not perfection, or
even the optimum, judged from the vantage
of hindsight, and
as
long
as
the choice made
fell within the range of rationality, the standard is not breached."
[42]
Arrest
is one of the methods to secure an accused's attendance at a trial.
It is impossible to lay down hard and fast rules regarding
the manner
in which the attendance of an accused at a trial should be secured.
Each case must be dealt with according to its own
merits. In my view,
and based on the facts of this case, there is no other method that Mr
Mapheto would have used to investigate
the veracity of the
allegations of assault contained in the statements of Ratau, Monyela
and Okoye. Still less could he have ignored
the post mortem findings
that the cause of death was consistent with smothering. I am of the
view that it would have amounted to
a dereliction of duty on the part
of Mr Mapheto had he not arrested the Plaintiffs who faced serious
allegations of murder and
attempted murder. His conduct in effecting
arrest cannot be faulted.
[43]
Having regard to the evidence before
this Court and in the light of the aforesaid authorities , I am
satisfied that a reasonable
suspicion was established and that it was
based on solid grounds. The peace officer, Mr Mapheto investigated
the accuracy of the
information from the witnesses before he acted
upon it. All the witnesses identified the Plaintiffs as the
perpetrators. The discretion
to arrest was properly exercised.
Consequently this Court is convinced that the arrest was lawful.
CLAIM 2: MALICIOUS PROSECUTION
[44]
It is common cause that pursuant to
their arrest and detention the Plaintiffs were charged and prosecuted
for murder and two counts
of attempted murder. They were found not
guilty and discharged in terms of section 174 of the CPA at a trial
in Polokwane before
Judge Baqwa on the 2 December 2014. Against this
backdrop all the Plaintiffs except the Third Plaintiff (Sekwadi)
instituted claims
for malicious prosecution against the Defendants.
[45]
After the Plaintiffs were arraigned and
indicted for murder and attempted murder they, through their legal
representative, made
written representation to the NPA in an effort
to persuade the NPA not to prosecute them. The NPA considered the
Plaintiffs' representation
but declined to withdraw the charges
against them.
[46]
Malicious prosecution consists in the
wrongful and intentional assault on the dignity of a person. The
requirements are that the
prosecution is instigated without a
reasonable and probable cause and with malice or
animo
iniuriandi
. The Defendant will not
be liable if he or she held a genuine belief found on reasonable
grounds in the Plaintiffs guilt.
Factual background
[47]
The Defendants' evidence was given by
Advocates Bethuel Manyuha and Eric Mabapa. Both are attached to the
office of the Director
of Public Prosecutions in Limpopo. Adv Manyuba
is the Deputy Director of Public Prosecutions and Adv Mabapa is the
Senior State
Advocate.
[48]
Advocate Eric Mabapa is the State
Prosecutor who took the decision to prosecute and ultimately handled
the prosecution of the Plaintiffs
at the criminal trial before Baqwa
J. He has been in this career as State Advocate since December 2007.
Amongst his duties are
to study the case dockets and make a decision
whether to prosecute or not. He testified that at the time he took
the decision to
prosecute the Plaintiffs he had before him the
following: Case docket, warning statements of the Plaintiffs, sworn
statements of
Ratau, Monyela and Okoye and post mortem reports of Dr
Selatole and Dr Perumal. According to Adv Mabapa it appeared from the
contents
of the case docket that possible crimes of murder and
attempted murder have been committed and that the Plaintiffs were
linked
to the offences. On the documents before him at that relevant
time, he was convinced that there was a reasonable prospect of a
successful prosecution.
[49]
At the time he took a decision to
prosecute he did not know any of the suspects (Plaintiffs) and had
never met them before. He never
received any complaint against them
and he also did not know all the victims of the offences committed by
the Plaintiffs. He stated
that he had no reason to be biased in
favour or against any of the parties. He stated further that after he
had taken a decision
to prosecute he drew up the indictment and
presented the whole docket and indictment to his senior, Adv Manyuha
for confirmation.
Indeed Adv Manyuha confirmed the decision to
prosecute and signed the indictment. He had the opportunity to
consider the written
representation of the Plaintiffs but he was not
persuaded that his decision to prosecute should be rescinded. In this
regard he
obtained the second opinion of another Senior State
Advocate, Mr Ngobeni, in the absence of Adv Manyuha. In conclusion
Adv Mabapa
stated that he had no reason to harbour any malice in that
prosecution. His duty as a prosecutor is to be objective without
gunning
for a conviction at all costs. His ethical duty, he
concluded, is to present the facts of the State case before Court and
for the
Court to decide on the guilt of an accused person.
[50]
Adv Bethuel Manyuha confirmed that after
Adv Mabapa had taken a decision to prosecute and drawn up the
indictment, the case docket
was brought to him for confirmation or
otherwise. He studied the whole contents of the docket. Dr Perumal's
post mortem report
convinced him that the cause of death was
consistent with smothering, more so that there were statements of
eyewitnesses to the
effect that during the alleged assault the
deceased was smothered with a tube. He stated further that despite
the fact that the
Plaintiffs had stated that they used minimum force
to subdue the deceased, when he considered the post mortem report of
Dr Perumal,
he concluded and was convinced that the Plaintiffs had
used more force than necessary. In his view there was therefore a
prima facie
case
for the Plaintiffs to face the trial in Court.
Adv Manyuha stated that the
contents of the post mortem reports, statements of witnesses, photo
album and the suspects' warning
statements weighed heavily on him
when he confirmed the decision to prosecute. He confirmed that Adv
Ngobeni did consider the written
representation of the Plaintiffs in
his absence.
[51]
The evidence of both Mabapa and Manyuha
is straightforward with no contradictions. They are both truthful and
reliable witnesses
whose versions I accept with no hesitation.
The Law
[52]
Malicious
prosecution consists in the wrongful and intentional assault on the
dignity of a person encompassing his good name and
privacy -
Relyant
Trading (Pty) Ltd v Shongwe & Another
[2006] ZASCA 162
[2007] 1
All SA 375
(SCA) para 5.
To succeed with this claim, a
claimant must allege and prove that:
(a)
the defendant set the law in
motion (instigated or instituted the proceedings);
(b)
the defendant acted without
reasonable and probable cause;
(c)
the defendant acted with malice
(or
animo injuriandi)
and
that
(d)
the prosecution failed.
These requirements were set out in
Minister of Justice and Constitutional Development & Others v
Moleko
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA) para 8;
2009 (2)
SACR 585
(SCA) and later restated in Rudolph
&
Others v
Minister of Safety and Security & Another
[2009] ZASCA 39
;
2009
(5) SA 94
(SCA) para 16.
In
Prinsloo v Newman
1975 (1) SA 481
(AD)
it
was held that the plaintiff has to prove that the defendant
instituted the proceedings without reasonable and probable cause.
The
reasonable and probable cause means an honest belief founded on
reasonable grounds that the institution of the proceedings
is
justified. It was further held that the concept involves both a
subjective and objective elements.
The test of reasonable and
probable cause, in so far as the subjective element and as well as
the objective element is concerned,
is not limited to the factual
situation but extends to the other aspect, namely, whether the facts
(known or suspected) constitute
an offence in law.
In applying the test, each case
must be considered on its merits.
See also
Minister
_of Justice and Constitutional Development & Others v Moleko,
supra, and
Relyant
Trading (Pty) Ltd v Shongwe
supra.
[53]
The requirement for malicious
prosecution that the prosecution be instituted "in the absence
of reasonable and probable cause"
was explained in
Beckenstater
v Rottcher and Theunissen
1955 (1) SA 129
(A) at 136A - B
as
follows:
"When it is alleged that
the 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 offence
charged; if, despite him 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, of reasonable and probable cause."
See also
Minister of Safety and
Security NO v Schubach (437/13)
[2014] ZASCA 216.
[54]
In the light of the aforesaid
authorities, it follows that the defendant will not be liable if he
or she held a genuine belief founded
on reasonable grounds in the
plaintiff's guilt. Where reasonable and probable cause for a
prosecution exists the conduct of the
defendant instigating it is not
wrongful.
[55]
It is of importance to the community
that persons who have reasonable and probable cause for a prosecution
should not be deterred
from setting the criminal law in motion
against those they believe to have committed offences, even if in so
doing they are actuated
by indirect and improper motive. The motive
of defendant is not of any legal relevance.
See:
Beckenstater v Rottcher and Theunissen,
supra
at 1350 - E
and
Relyant Trading (Pty) Ltd v Shongwe,
supra at
para
[14].
[56]
Malice is not a separate element of the
delict and means the intention to injure or
animus
iniuriandi.
Although the expression
"malice" is used, it means in the context of
actio
iniuriarum, animo injuriandi.
Where
relief is claimed by this
actio,
like
in the present case, the plaintiff must allege and prove that the
defendant intended to injure (either
dolus
directus
or
indirectus)
-
Relyant
Trading,
supra at
para
[5].
[58] In
the present case, like in any claim based on malicious prosecution,
the onus is on the Plaintiffs
to prove and show that the Defendants
set the law in motion without reasonable and probable cause and
further that the Defendants
were actuated by malice or had the
intention to injure
(animus injuriadi)
them. I revert to the
facts of this case in order to make this determination.
Application of the Law to the
Facts
[59] The
evidence of both Advocates Manyuha and Mabapa is acceptable in
totality as being honest and truthful.
Both State Advocates took
reasonable steps to determine whether the Plaintiffs as suspects had
a case to answer. They both considered
the witnesses statements, post
mortem reports and the warning statements of the Plaintiffs. Advocate
Mabapa first took the decision
to prosecute and thereafter referred
the matter to Advocate Manyuha for a second opinion and confirmation.
Both of them were convinced
on reasonable grounds that the contents
of the case docket disclosed an offence linked to the Plaintiffs. The
written representation
submitted by the Plaintiffs were considered by
Advocate Mabapa who after such consideration was not persuaded that
the Plaintiffs
were innocent. In the absence of Adv Manyuha, another
Senior State Advocate, Mr Ngobeni considered the representation and
agreed
with Advocate Mabapa that the Plaintiffs had a case to answer.
[60] The
fact that the two main state witnesses, Ratau and Monyela
contradicted themselves at the trial
of the Plaintiffs and were
ultimately found to have lied is immaterial. A trial Court is a
different forum where the credibility
of a witness is tested. The
mechanism of cross-examination at a trial is used to test the
credibility of a witness. This mechanism
is not available to public
prosecutors or members of the NPA when they study the case docket in
order to decide to prosecute an
accused person. One could not have
expected Advocates Manyuha and Mabapa to have interrogated and / or
cross-examined the three
witnesses in order to satisfy themselves
that the witnesses were truthful.
[61]
Regarding the contradictions between Ratau and Monyela, Advocate
Mabapa gave a good explanation thereon
and stated that such
contradictions were not apparent in their written statements. The
contradictions became apparent at cross-examination
during the trial.
There is therefore no way that as the Prosecutor he ought to have
foreseen or foretold that these witnesses would
contradict each other
in Court. When taking the decision to prosecute he believed that
there was a
prima facie
case against the Plaintiffs. In my
view, the two Sate Advocates believed on reasonable grounds that the
contents of the case docket
had sufficient facts which linked the
Plaintiffs to the commission of an offence.
[62]
In
Neethling,
Potgieter and Visser: The Law of Delict 7
th
edition at p 366
-
367
it was said that:
"There is an absence of
reasonable and probable cause for prosecution either
if there are, from an
objective viewpoint, no reasonable grounds for the prosecution, or
if,
where such grounds are in fact present, the defendant does not,
viewed subjectively, believe in the plaintiff's guilt. The
defendant
will thus be acquitted if, on the one hand, there existed reasonable
grounds for prosecution and, on the other hand,
he also believes in
the plaintiff's guilt. The question of whether reasonable grounds
exist may only be answered by reference
to the facts of each
particular case."
Conclusion
[63]
The
summarised facts of this case as presented in the case docket before
the prosecution ensued are that the deceased allegedly
resisted
arrest, minimum force was used to subdue him and was transported to
the Police Station. En route to Police Station he
lost consciousness
and on arrival he was declared dead. Ratau, Monyela and Okoye stated
that the Plaintiffs assaulted and smothered
the deceased with a tube.
The allegations and findings of assault and smothering are supported
by the post mortem reports, in particular
that of Dr Perumal. The
conclusion arrived at by the latter as to the cause of death is that
it is consistent with smothering.
I am of the view that on these
given facts and viewed objectively, any reasonable Public Prosecutor
would have decided to prosecute,
as was done in the present case. The
Plaintiffs' contention that the Prosecutor (NPA) acted without
reasonable and probable cause
is flawed. The element of malice or
animus injuriandi
can also not be established in this case.
The Plaintiffs have failed to discharge the onus of proof in this
regard. Consequently,
the Plaintiffs have failed to make out a case
on a balance of probabilities for malicious prosecution against the
Defendants and
their claims are bound to fail.
ORDERS
[64]
The
following orders are made in respect of claim 1 (unlawful arrest and
detention) and Claim 2 (malicious prosecution):
64.1.
The
Plaintiffs' claims for unlawful arrest and detention are dismissed
with costs.
64.2.
The
First, Second Fourth Plaintiffs' claims for malicious prosecutions
are dismissed with costs.
64.3.
The
costs awarded shall be payable jointly and severally the one paying
the other to be absolved.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 3, 4, 6 &
18 February 2020
Judgment
delivered on
: 28 February
2020
For
the 1
st
, 2
nd
& 3
rd
Plaintiffs : Adv. LA Nkoana
Instructed
: S Rangoanasha Incorporated
For
the 4
th
Plaintiff
: Adv. JJ Hattingh SC
Instructed
:TC Hitge Attorneys
c/o Bosman Attorneys
For
the Defendants
: Adv. TR Masevhe
Instructed
: State Attorney