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[2019] ZAKZPHC 49
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Buthelezi v Minister of Police and Others (D7472/2013) [2019] ZAKZPHC 49 (30 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO: D7472/2013
In the
matter between:
PATRICK BUTHELEZI
Plaintiff
and
MINISTER
OF
POLICE
First Defendant
MINISTER
OF JUSTICE
Second Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Third Defendant
DIRECTOR
OF PUBLIC PROSECUTIONS, KWAZULU-NATAL
Fourth Defendant
ORDER
(a) The plaintiff’s
detention from 22 November 2011 until 14 December 2012
is found to be
unlawful.
(b) The first and
third defendants are jointly and severally liable to compensate
the plaintiff for such damages as may be agreed or proved in respect
of his unlawful detention from 22 November 2011 until 14 December
2012, the one paying the other to be absolved.
(c) The first and
third defendants are jointly and severally liable, the one paying
the
other to be absolved, for the plaintiff’s costs of suit.
JUDGMENT
Chetty J:
[1] The
plaintiff, Patrick Buthelezi, an educator and currently occupying
the
position of Acting Deputy Principal at a public school, instituted
action against the defendants, being the Minister of Police,
Minister
of Justice, the National Director of Public Prosecutions and the
Director of Public Prosecutions for KwaZulu-Natal, arising
from his
arrest and detention on a charge of rape of a nine year old learner
at the school where he was teaching in 2011. The plaintiff
was
arrested on 21 November 2011 after presenting himself at the
Bhekithemba Police Station, having been informed that the police
had
visited his school, looking for him. He brought a formal bail
application on 29 November 2011. On 12 December 2011 a judgment
was handed down by the presiding magistrate in which bail was refused
on the grounds that the plaintiff failed to meet the threshold
of
exceptional circumstances in as much as he was charged with a
Schedule 6 offence in terms of the Criminal Procedure Act 51 of
1977
(the CPA). The learner is referred to in this judgment by her first
name, Mbali, to protect her identity.
[2] Following
the refusal of bail, the plaintiff remained incarcerated until
the
conclusion of his criminal trial on 14 December 2012 when he was
eventually acquitted of the charges against him.
[3]
In his action for damages, the plaintiff contends that the
investigating
officer assigned to the case, Warrant Officer
Mathengela, failed to bring to the attention of the court certain
“unsatisfactory
features” in the evidence of the
complainant amongst others that her statement to the police,
including the first report
made by the complainant, was
preceded by a beating from her guardians. Only thereafter, and
at the prompting from her
aunt, did the complainant implicate the
plaintiff as the person who had raped her. It was further
contended that the
arresting officer and the investigating
officer, in collusion with the prosecutor assigned to oppose the bail
application,
all knew of the existence of these facts, yet withheld
them from the court hearing the bail application. Crucially, the
plaintiff
alleges that the police and the prosecutor, Ms Peramal,
were privy to all of the statements forming part of the police docket
at
the bail application. They were aware that a fellow teacher at the
school, Ms Mkhize, whom the learner alleges witnessed the incident
(or part thereof) in the classroom, had deposed to a statement
indicating that she saw no such thing. Despite the exculpatory nature
of the statement, its contents were not placed before the court at
the bail application. As a result, the plaintiff alleges that
the
police failed to investigate the matter properly and that the
prosecutor (and the police) failed in their public law duty to
disclose evidence in their possession at the bail hearing, with the
effect that the court was misled, resulting in the plaintiff
being
refused bail.
[4] In their
plea the defendants deny that the police failed in their duty
to the
plaintiff, contending that the investigation officer had a reasonable
belief that the plaintiff had committed a serious
crime and that his
legal representative had the opportunity, through cross-examination
at the bail application to inform the presiding
magistrate of any
unsatisfactory features in the evidence of the complainant. .
[5] I should
say at the outset that the drafters of the defendants plea appeared
to misinterpret the plaintiff’s case which is that the
defendants employees had a duty to disclose information in their
possession to the court, which information was restricted to them
alone as neither the plaintiff nor his attorney had access to
the
police docket at the stage of the bail application. The latter could
not have been able to bring out such facts out in cross-examination
of the State witnesses. The defendants’ further contend that in
light of the serious allegation against the plaintiff, the
investigating officer was obliged to arrest him and that he had no
duty to decide on the innocence or guilt of the plaintiff. It
is also
denied that Ms Perumal breached her duty in any way.
[6]
The plaintiff takes no issue with his arrest per se, in light of the
serious
allegations levelled by the complainant, in the context of a
medical report which confirmed that she sustained injuries consistent
with sexual penetration and that she was a minor.
[7] It was
agreed between the parties in terms of Uniform rule 33(4) that
the
matter would precede on the basis of a separation of the merits from
quantum. The sole issue for determination, and on which
the parties
agreed, is whether or not the detention of the plaintiff from 22
November 2011 until 14 December 2012 was lawful. In
essence, the
plaintiff contends that the investigating officer Warrant Officer
Mathengela and/or the prosecutor Ms Perumal failed
to bring to the
attention of the presiding magistrate certain vital information which
caused the court to refuse the plaintiff
bail, resulting in his
continued detention for almost 11 months.
[8] At the
commencement of the trial, counsel for the parties handed in a
signed
statement of admissions directed at shortening the duration of the
trial. The following admissions are recorded:
(a) That the
complainant in the rape case against the plaintiff was nine years old
at the time of the incident and a learner at the school in Umlazi,
Durban at which the plaintiff was employed as an educator.
(b) That the
complainant reported the matter in the company of her guardian to the
police on the evening of 17 November 2011.
(c) As a result of the
complaint, the plaintiff handed himself over to the police
on 21
November 2011.
(d) The plaintiff
applied for bail which was opposed by the State. The application
for bail was refused.
(e) It is admitted by
the defendants that the investigating officer, the police
and the
prosecutor together with the Prosecution Authority, owed a duty of
care to the plaintiff.
[9] The
evidence presented by the parties spanned several weeks over almost
two years
and included several witnesses. The plaintiff introduced
into evidence the transcript of proceedings at the bail application
and
the rape trial at which the plaintiff was acquitted on all
counts. None of this is placed in dispute by the defendants. Both
parties
made reference to the transcript in their examination of
their respective witnesses and the transcripts were accepted as a
record
of the respective proceedings. I do not intend the repeat the
detail of the evidence presented by each witness. This is a matter
of
record. The issue, informed by the facts, largely pertains to whether
the duty of care which the defendants employees owed the
plaintiff,
was breached, giving rise to liability.
[10] The defendant called five
witnesses, the first of which was Constable Ndlovu who stated
that
she had been informed that a case of rape of a minor had been opened
at the police station and that the suspect was an educator
at
Isidingo School in Umlazi. After reading the docket she proceeded to
conduct an interview with the complainant and the principal
of the
school. Ndlovu also confirmed taking a statement from the
complainant.
[11] The suspect, being the
plaintiff, could not be immediately located. However, presumably
after news spread that he was being sought; a person purporting to be
the brother of the plaintiff called Constable Ndlovu and
made
arrangements for the plaintiff to hand himself over at the Umlazi
police station. The plaintiff arrived at the police station
where his
rights were explained to him, as well as the charges, after which he
was arrested and detained.
[12]
Under cross-examination, Constable Ndlovu admitted that she had taken
a statement from
Ms N Mkhize, a teacher at the school which the
complainant attended, and where the plaintiff taught. Ndlovu
confirmed that the
complainant informed her that Ms Mkhize had
witnessed the alleged rape. However, when Ndlovu consulted with Ms
Mkhize, the latter
denied that she had witnessed any such incident.
Ndlovu conceded that she had no reason to disbelieve Ms Mkhize. She
went
on to state that Ms Mkhize had probably changed her version
because she may have been fearful for her life as she taught in the
same school as the plaintiff. It was pointed out to the witness that
this conclusion was based entirely on speculation and without
any
factual basis. It was further put to the witness that it was her duty
as a police officer to bring to the attention of the
court the
contents of the statement made by Ms Mkhize. Ndlovu accepted the
correctness of the proposition but attempted to avoid
the
issue by stating that she was
not the officer who dealt
with
the bail application. In addition, she conceded that in the course of
the investigation, the conduct of a complainant,
particularly that of
a child in a case of sexual assault, after the alleged incident, is a
relevant factor to take into account.
She further stated that she was
aware that Mbali had been crying when she got home on the day of the
incident, and that Mbali’s
aunt informed her that Mbali had
given differing explanations for her crying. Eventually, only after
questions were put to her
did she inform her aunts that she had been
raped.
[13] Constable Ndlovu further
testified that she had taken a statement from Ms Thembeka Ngubane,
to
whom the first report of the rape had been made by the complainant.
It is particularly important because in her statement, Ngubane
stated
that she noticed the complainant acting strangely on the night of 16
November 2011, and that she was crying in bed. On enquiring
why she
was crying, the child first said that her head was paining which
later changed to a pain in her stomach. Mbali then changed
her
version saying that he was sick at school and had a headache.
[14] Ngubane’s statement
further states that she continued to interrogate the complainant
until the latter informed her that her class teacher had touched her
while she was asleep in the class. As the complainant was
not
forthcoming with further information as to what precisely took place,
even suggesting that she was crying because other children
had hit
her at school, according to Miya, her sister Ngubane threatened to
hit the complainant with a stick. In her statement,
Ngubane confirms
that because she could not get a clear answer from the complainant as
to what was the reason for her crying, she
hit her twice with a belt,
after which she put her onto the bed and inspected her vagina,
noticing that it was swollen.
[15] After further questioning of
the complainant, the latter revealed that while the other
children
were playing outside her classroom, she fell asleep inside and was
awoken by her teacher (the plaintiff) touching her,
after which he
put her onto the desk, took her panties off and had sexual
intercourse with her. According to Ngubane’s statement,
the
complainant informed her that another teacher at the school saw the
incident and informed her that she was going to remove
her from the
plaintiff’s classroom.
[16] The version set out in
Ngubane’s statement accords largely with the statement
which Constable Ndlovu took from Miya, who was present when Ngubane
hit the complainant with a belt, forcing the complainant to
divulge
what had taken place at her school.
[17] Constable Ndlovu was
referred in her cross-examination to the evidence of Miya at the
criminal trial, where the latter confirmed in her testimony that upon
the complainant being asked what was wrong with her, the
complainant
initially stated that the plaintiff had touched her on her shoulder,
to which Miya responded that there was nothing
inappropriate
with such action. In her testimony at the criminal trial, Miya stated
that the complainant refused to divulge what
had happened to her
until she (Miya) asked the question “Did your teacher rape
you?” to which the complainant responded
in the affirmative.
She went on to explain that he made her lay on top of the desk while
he undressed himself and lay on top of
her. Crucially, in her
testimony, Miya also stated that the complainant informed her that Ms
Mkhize, had seen the incident, and
removed the complainant to her
class.
[18] Constable Ndlovu testified
that the evidence which Miya had given in the criminal trial
was
similar, although not exactly the same, as set out in her statement.
Ndlovu accepted however that she had been informed that
before Mbali
could make the allegation of having been raped, that Mbali’s
aunt had given her a hiding with a belt.
[19] Under cross-examination the
witness confirmed that the plaintiff surrendered himself to
the
police, being an indication that he would not evade trial. There was
no evidence to suggest that he would be likely to commit
a serious
offence while on bail and the witness confirmed that there were no
reasons why the interests of justice would not permit
the release
from detention of the plaintiff based on any of the reasons set out
in ss 60(4) and (5) of the CPA.
[20]
Constable Ndlovu accepted that because of the serious nature of the
offence, the onus was
on the plaintiff to show exceptional
circumstances in order to be released on bail, and that in crossing
that threshold; the strength
of the State’s case was an
important consideration. In this regard it bears noting that s 60(11)
of the CPA provides
for the following:
‘(11) Notwithstanding any provision of this Act, where an
accused is charged with an offence referred to-
(a)
in Schedule 6, the court shall order that the accused be
detained in custody until he or she is dealt with in accordance with
the
law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which
satisfies the court
that exceptional circumstances exist which in the interests of
justice permit his or her release;
(b)
in Schedule 5, but not in Schedule 6, the court shall order
that the accused be detained in custody until he or she is dealt with
in accordance with the law, unless the accused, having been
given a reasonable opportunity to do so, adduces evidence
which
satisfies the court that the interests of justice permit his or her
release.’ (My emphasis)
[21] The second witness called by
the defendants was Zandile Octavia Dladla, the maternal grandmother
of Mbali. She confirmed that the child presently lives with her as
her mother (the witnesses’ daughter) died in 2005. She
confirmed that on 17 November 2011 she received a call from either
Thembeka or Miya, the aunts of Mbali, who informed her that
something
had happened to Mbali. On her arrival she was informed by Mbali that
she had been raped by her teacher at school, referring
to the
plaintiff. The child was thereafter taken to the hospital on 17
November 2011 but could only be seen the following day as
there were
no doctors available. The child was examined by a doctor the
following day and a DNA sample was taken. The doctor, according
to
the witness, confirmed after examining the child that there had been
penetration of the child’s vagina. The witness confirmed
that a
letter, signed mainly by members of the child’s family, had
been submitted to the police in opposition to bail being
granted to
the plaintiff. It was not clear whether the petitioners were
people related to the complainant, or whether this
was presented as a
petition from the community in general. Mrs Dladla confirmed that
after taking the child to hospital she reported
the matter to the
principal at the child’s school as the child was in the middle
of completing her examinations. She also
explained that the child was
afraid of returning to school.
[22] Under cross-examination Mrs
Dladla confirmed that she did not attend the bail application
of the
plaintiff but admitted that she spoke to a newspaper reporter after
the plaintiff’s appearance in court. She confirmed
the contents
of the newspaper article in which she informed the reporter that
something had been troubling Mbali at school for
the past two weeks
and that she had been temperamental when other children tried playing
with her, and she kept on crying at night.
Counsel for the plaintiff
submitted in argument that this must have been sufficient to create
doubt as to the correctness of the
child’s version that she had
been raped by the plaintiff on 16 November 2011, whereas on the
information presented
to her grandmother she had been troubled at
school for at least two weeks before the incident. It was argued that
in light of the
medical examination not being able to find any fresh
tears of the child’s hymen, there was some doubt that the
sexual assault
could have taken place on the date when the child said
it was committed.
[23] Mrs Dladla further confirmed
the contents of her version to the reporter that the child
informed
her that another teacher at the school appeared when the ‘disgraceful
act’ was being committed. This would
presumably would be
consistent with the report by the child that a teacher, Ms Mkhize,
arrived on the scene at the time when she
was being raped and removed
the child to her class. The report reflects that the teacher who
supposedly witnessed the incident
was no longer willing to testify
(presumably in favour of the State) at the criminal trial and that
the school principal and his
deputies were apparently shocked at the
allegation against the plaintiff, someone whom they trusted as a
teacher.
[24] The next witness for the
defendants was Warrant Officer Mathengela who testified that
he is
from the Brighton Beach police station and was assigned as the
investigating officer to this case. He was assigned the case
by his
superior, Captain Khanyile, who briefed him on the matter. He
confirmed that he had received instructions to pick the plaintiff
up
and take him to Prince Mshiyeni hospital to have a blood sample taken
the purpose of DNA analysis.
[25]
Mathengela stated that he had read the statements of the witnesses
which were taken by
Constable Ndlovu and that he had visited the
child’s school where the alleged rape is said to have taken
place. The instructions
which he had received from his superior were
to oppose the bail application of the plaintiff. This was similar to
the advice given
to him by Constable Ndlovu, on the basis that the
plaintiff was charged with a Schedule 6 offence in terms of the CPA.
The charge
against the plaintiff was that of rape of a person under
the age of 16 and thus being a Schedule 6 offence in terms of s
60(11)(
a
) of the CPA. As such, an accused facing such a charge
bears the onus of establishing on a balance of probabilities that
exceptional
circumstances exists, which in the interests of justice,
permits his release. In such a case, proof by an accused that he or
she
will probably be acquitted can serve as ‘exceptional
circumstances’. On the other hand, the strength of the State’s
case is relevant to the existence of ‘exceptional
circumstances, where the court will have to weigh the competing
versions.
In this regard the witness confirmed that his opposition to
bail was based on the fact that the victim was a nine-year-old child,
the interest of the community in being protected from such crimes,
the fact that the suspect was a teacher and that if he were
released
on bail, there was a risk that he himself would be harmed by the
community. In addition, he stated that at the plaintiff
knew the
child victim.
[26] On the above grounds,
Mathengela was instructed to oppose the bail application of the
plaintiff, although he conceded under cross-examination in this court
that the plaintiff was not considered as a flight risk in
as much as
he reported to the police station once he heard that the police were
looking for him. Moreover, it was also put
to him in this court
that at the time of the bail application, the complainant had
relocated to eManzimtoti and had transferred
to a new school. As
such, there was no threat posed to her or the other State witnesses.
The witness was however insistent
that he deposed to an
affidavit which he handed to the prosecutor in which he opposed bail
and in which he stated that he feared
for the safety of the
complainant and the State witnesses. Although he alluded to the
reasons for this fear in his affidavit (to
which no reference is made
in the transcript of the magistrate’s judgment on bail) he was
unable to explain in this court
what those fears were premised on.
[27]
Mathengela appeared to be motivated to oppose bail based on the age
of the complainant
and the fact that she made a report of the
incident on the day on which it occurred. As regards the latter
aspect, it was
put to him that there is some doubt
as to when the incident occurred in light of the statement by the
complainant’s
grandmother that the child had been upset for two
weeks prior to disclosing the incident. He also placed emphasis on
the J88, disputing
that its findings were ‘neutral’. It
was not certain at the bail hearing what had become of the DNA
analysis following
a blood sample taken from the plaintiff. It later
emerged that the analysis was inconclusive as no traces of the
plaintiff’s
DNA could be found on the child’s clothing.
[28] The witness then testified
that the persons present in the gallery during the bail hearing
were
interrupting the proceedings and were ordered by the court to remain
silent or face removal. This version was later disputed
under cross-
examination with reference to the transcript of the bail proceedings,
which appeared to reflect that the proceedings
were held in camera in
light of the age of the complainant. While there is a discrepancy
over this aspect of his evidence, I do
not consider it material to
the outcome which I reach.
[29] Mathengela confirmed that
when he gave evidence opposing bail, the prima facie evidence
against
the plaintiff was that the medical report (J88) indicated that
“
something had happened to the child
”, in other
words that the findings were consistent with penetration. He stated
that he had informed the court of his reasons
for opposing bail (as
set out above), in addition to there being some uncertainty as to
whether the plaintiff had been previously
arrested for an offence,
and whether he had any children of his own, for which he was
responsible. Under cross-examination
the investigating officer
conceded that the plaintiff informed him that he had previously been
arrested on a charge relating to
a boycott, but this was later
withdrawn. Despite knowledge of this, when he testified, Mathengela
gave the impression at the bail
application that the plaintiff had a
prior record of criminal conduct. Mathengela also informed the court
that members of the public,
who were teachers and had presumably come
to court to support the plaintiff, had intimidated him outside court.
Despite the objection
from the plaintiff’s attorney as to the
relevance of the incident, the state prosecutor joined issue with the
investigating
officer, stating the following:
“One
of the grounds which the State is going to oppose it, that there is
going to be interference from either the people supporting
the
applicant or his family with the investigation itself…..”.
The Court overruled the objection and allowed evidence from
Mathengela on how he had been intimidated and felt threatened by
members
of the plaintiff’s family, and that he regarded
the plaintiff’s brother as being un-cooperative in his
investigations.
Despite his vigorous opposition to bail, he attempted
to adopt a neutral stance informing the court that the decision
whether or
not to grant bail rested with the Court.
[30] The witness further informed
the magistrate at the bail application that he had obtained
a
statement from a teacher at the child’s school which he
described as a “
defensive statement
”. In this
court, the witnesses described the statement as being “
very
short”
. Under cross-examination on this aspect of his
evidence, Mathengela stated that he viewed the statement as
‘defensive’
because Ms Mkhize had made reference to the
plaintiff having assaulted a witness. No such reference could be
found anywhere in
her written statement. In essence, Mathengela
considered that Mkhize would be an “
unco-operative
”
witness despite the fact that in the bail application he gave the
impression that she was a material witness to the alleged
rape.
[31] The investigating officer
was subjected to a lengthy and arduous cross- examination by
the
plaintiff’s counsel who based his questions on the reasoning of
the Supreme Court of Appeal in
Woji v Minister of Police
2015
(1) SACR 409
(SCA) and as the plaintiff was not challenging the
lawfulness of his arrest, the focus of the cross-examination was
directed entirely
on the evidence presented (or not presented)
by the State to the magistrate presiding over the bail application.
Mr
Singh
who appeared for the plaintiff read to the
witness the following excerpt from
Woji
which states the
following:
‘[19] The basis for Mr Woji's claim was that the magistrate, in
refusing to grant bail, acted upon the information supplied
by Insp
Kuhn. It was alleged that Insp Kuhn owed a duty to Mr Woji to
properly investigate the crime and bring to the attention
of the
prosecutor and the magistrate at the bail
hearing, information which was
relevant
to the exercise by the magistrate of
his discretion. It was alleged that Insp Kuhn
had failed to discharge
this duty, which resulted in the magistrate ordering the continued
detention of Mr Woji. His detention
was accordingly unlawful. The
minister, whilst conceding that this duty rested upon Insp Kuhn,
denied its breach. The minister
alleged that Insp Kuhn had made it
clear to the magistrate what the nature and strength of the
prosecution's case against Mr Woji
were and that he could identify Mr
Woji in the video footage.’
[32] The essence of the
cross-examination was directed at the manner in which the
magistrate’s
discretion was exercised in arriving at her
decision to refuse bail. As I understood the plaintiff’s
case, the
magistrate’s discretion would have been based on the
information presented to her by the State through the prosecutor and
the witnesses called. The contention by the plaintiff is that
by withholding certain vital information from the court,
the
defendants employees or agents breached their constitutional duty
owed to the plaintiff, and had this information been disclosed,
the
likelihood was that the plaintiff would have been released on bail.
[33]
Having canvassed the above statement in
Woji
it was put to the
witness that as a police officer he had a legal duty to properly
investigate crime and bring to the attention
of the court information
which would be relevant for the magistrate to exercise his/her
discretion. The witness was somewhat evasive
in answering the
question, stating that his duty was to hand over statements to the
prosecutor, who in turn would then hand over
information to the
defence counsel. The investigating officer stopped short of stating
that his obligation as a police officer
was to bring all the
information at his disposal to the attention of the magistrate, with
whom the decision rested whether to grant
bail. It is also apparent
from the evidence of this witness that he was not willing to accept
any blame that attached to his failure
of placing relevant
information before the court. Instead he attempted to place blame
on the prosecutor. There was also a
suggestion by the investigating
officer that he had handed in an affidavit to court during the course
of the bail proceedings in
furtherance of his opposition to bail.
There is no record of this document in the transcript. The impression
I gained from this
witness’s evidence is that he was reluctant
to accept responsibility for the nature of the evidence which he
presented to
the court, seeking to confine himself simply to those
facts which were incriminating of the plaintiff.
He
did not fully disclose to the court that the crucial witness
whom the complainant alleges to have witnessed the rape, did not
corroborate
the version of the complainant, knowing that the defence
would not have been entitled to copies of witness statements at the
time
of the bail hearing. He was simply content with the scenario
that he handed the docket to the prosecutor, after which it was her
responsibility to pose questions to him as a witness.
[34] The witness was further
cross-examined in relation to the first report which he testified
was
one of the grounds which he relied on to form a prima facie view that
bail should be opposed. As set out above, the report
made by the
complainant to her aunt was only done after the complainant was
threatened with a hiding. According to his testimony
in this court,
the witness stated that the child implicated her teacher (the
plaintiff) before being threatened with a hiding.
This version is not
supported by any of the statements by Ms Ngubane or Ms Miya.
[35] The investigating officer
conceded in his testimony that only admissible evidence is allowed
in
court, and not evidence which is made under threat or punishment. It
was clear from the evidence of the earlier State witnesses,
Ms Miya
and Ms Ngubane, that the complainant was reluctant to divulge to her
aunts’ why she was crying. She offered
different
explanations to them. It was only after she was asked whether her
teacher had raped her that she replied in the affirmative.
When
questioned in this regard, the investigating officer simply stated
that he did not tell the court of the contents of
the
statements by Ms Ngubane and Ms Miya. He simply informed the court
that there had been a first report. His explanation as to
why he did
inform the court of the contents of the statement is that he was
never asked the question.
[36] As an experienced police
officer, I found this aspect of the witness’s evidence
unconvincing in as much as he ought to know that where a question is
put to a complainant, particularly a child in a rape case,
which is
suggestive or leading of a particular answer, the response will
certainly not be admissible in court.
[37]
There was lengthy cross-examination as to whether the complainant
informed her aunts that
she had been touched on her upper body and
whether this was cause for a charge of rape to be laid against the
plaintiff. These
are matters which were relevant to the criminal
trial court which acquitted the plaintiff on all counts. Although the
plaintiff’s
counsel submitted that it is a factor to be
considered in the plaintiff’s claim against the defendants, I
am of the view
that it is not a material consideration. Not every
contradiction in either the testimony of witnesses or from their
written statements
is decisive of a claim. What is important is that
the investigating officer was aware or ought to have been aware at
the time of
the bail application that the child had given a number of
different explanations for her crying, until she was threatened with
a hiding, and after being asked leading questions, stated that the
plaintiff had raped her. He also conceded that he did not interview
other children in Mbali’s class despite the statement of the
grandmother that the child had been crying and was upset for
a while
before the incident, nor did the investigating officer question
the complainant of what had happened after the incident.
[38] The witness was unable to
dispute that this evidence was never placed before the magistrate
at
the bail hearing and was non-committal as to whether this would have
influenced her assessment of the State’s case against
the
plaintiff. He steadfastly maintained that he had conducted a proper
investigation into the matter despite the cross-examination
revealing
several shortfalls. Mathengela was also unable to refute the
contention that the complainant’s grade was writing
examinations on 16 November 2011, the date of the alleged rape. If
so, the argument followed, that the rape could not have
taken
place at the date and time when the complainant alleges it to have
occurred. This again throws light on possible doubt in
the evidence
of the aunts and the version of the complainant.
[39] Mathengela stated in his
evidence that the statements in the docket where placed before
the
prosecutor and it was therefore her duty to ask the relevant
questions to place the necessary facts before the court.
His
evidence was typified by evasiveness and a shifting of blame.
This is evident from his evidence in the bail hearing when
he was
asked:
‘Sir,
what is your view on the applicant being granted bail today? …
I don’t have a right to not grant
the accused the bail,
but I’ll leave that to the hands of the court. What I’m
here for is to present the evidence
here in court, the reason
why I was opposing bail.
You are
opposing bail? …. I don’t feel that he should be granted
bail.’
[40] The witness went on the add
at the bail application that he did not trust the plaintiff
referring
to his concern about the plaintiff’s physical address and as to
whether he had children of his own or whether he
was a guardian of
his brother’s children. Neither of these factors, in my view,
would have justified the opposing of bail.
[41] It bears noting that when
Mathengela gave evidence at the bail hearing he related to the
court
the version of the complainant as set out in her statement. He made
no mention of the allegation of rape surfacing only after
the
complainant had been threatened with a hiding. Moreover, he had
already been aware that the teacher, Ms Mkhize, was not going
to
corroborate the version of the complainant. Despite this, Mathengela
gave the following evidence to the court:
‘And
then another teacher came, your worship, which was Ms Mkhize who is a
teacher from the next-door class, who enquired
from the accused as to
what he is doing and he stated that he did not do anything and then
that Ms Mkhize told the victim that
next year she’ll be in her
class, not to be in Mr Buthelezi’s class.
Are you
saying that the teacher is an eyewitness to what happened or did she
arrived when everything was over or what is her position?
---
Your
worship, as far as the victim is concerned, that teacher was able to
rescue the victim. And have you obtained a statement from
the teacher
yet?
Your
worship, as I’ve said that on the weekend of the 16
th
and the 18 I wasn’t available but
Constable Ndlovu there is a statement that she filed, your
worship, but when you look at that statement it looks more as
defensive’
.
[42]
His testimony at the bail application strongly suggests that while he
was aware that Ms
Mkhize was more likely to be a defence witness
based on her statement, Mathengela gave the impression that she was
an eye witness
to the alleged rape. When the magistrate made her
ruling to refuse the plaintiff bail, she paraphrased Mathengela’s
evidence
in the preceding paragraph concerning Ms Mkhize as having
witnessed the incident. In the bail application, when he was
questioned
whether the complainant had made her statement under
duress Mathengela denied that this had been the case, despite having
sight
of the statement that the child implicated the plaintiff upon
threat of a beating. In this regard too, the magistrate accepted the
version of Mathengela that the complainant had made a first report to
her two aunts on the same evening as when the incident occurred.
The same treatment was given to his evidence regarding the J88 and
the conclusion that penetration had taken place. Based on the
above
factors alluded to, and all of which were testified to by the
investigating officer, the magistrate reached the conclusion
that the
State’s case could not be said to be “non-existent or
subject to serious doubt”. The court accordingly
concluded that
no exceptional circumstances had been shown to exist justifying the
release of the plaintiff on bail.
[43] The next witness for the
defendants was Ms J Perumal, who testified that she had been
in the
employ of the National Prosecution Authority since 2004 and had been
assigned to deal with the plaintiff’s bail application.
She
perused the docket, including the statements of the complainant and
her aunts, and the J88 prepared by the medical doctor who
confirmed
that there had been sexual penetration of the complainant. In
addition, Perumal was satisfied that the child had been
assessed by a
prosecutor in the Umlazi District Court who confirmed that the child
was a competent witness. In short, the prosecutor
was satisfied that
there were sufficient grounds for her to oppose the bail application
of the plaintiff and that there were grounds
for a successful
prosecution. As the charge against the plaintiff fell under Schedule
6 of the CPA, the onus was on the accused
to prove that bail should
be granted. She confirmed that the bail application was heard on 29
November 2011 and that the magistrate
issued a ruling refusing bail
on 12 December 2011. She stated that she was unaware that the
complainant had been beaten by her
aunt prior to making a statement
implicating the plaintiff. As far as she was aware, “everything”
had been placed before
the magistrate, who subsequently denied bail.
[44] Under cross-examination the
witness stated that the investigating officer informed the
magistrate
hearing the bail application that a statement had been taken from Ms
Mkhize, but that this was a “defence statement”.
She
confirmed that the investigating officer did not bring to the
attention of the court that Ms Mkhize disputed the child’s
version that she (Ms Mkhize) had walked in while the plaintiff was in
the process of raping the complainant. The prosecutor conceded
that
it was not the task of the investigating officer to decide whether or
not to bring this information to the attention of the
court, but
rather a decision which properly must be left in the hands of
the court.
[45] She conceded that the
affidavit of the teacher, Ms Mkhize, was never handed into court
nor
were its contents placed on record. When asked why she had not
brought the contradiction in the statement of the child and
that of
Ms Mkhize to the attention of the court, the prosecutor offered the
explanation that she was of the view that the plaintiff
was going to
lead evidence on this point. In essence, the prosecutor appeared to
be of the view that she was under no obligation
to put such evidence
before the court as this was for the plaintiff to do so. To compound
matters, in the course of the bail application
the plaintiff appeared
to have formulated the view that the State intended calling a teacher
from his school to testify in this
matter against him. When
questioned on this aspect, it was put to the prosecutor that she did
not do anything to dispel this impression
which had been created,
while at the same time accepting that it was her duty to inform the
court of the evidence, the strength
and weaknesses of the State’s
case, in order to ensure that a just decision is reached.
[46] The prosecutor further
testified that she had not been aware that the child complainant
had
been threatened with a beating before she made a statement
implicating the plaintiff. She conceded in hindsight, that such
information should have been disclosed to the court. She also
conceded that the different explanations given by the child
as to why
she was crying was relevant information which would have impacted on
the credibility of the complainant in so far as
the allegation of
rape is concerned. This information was not brought to the attention
of the court.
[47] Despite the shortcomings in
the prosecutorial process alluded to above, the prosecutor
maintained
that she did not associate herself, either inadvertently or
advertently with the investigating officer’s conduct,
in
failing to bring the relevant and necessary information to the
attention of the magistrate presiding at the bail application.
[48]
When questioned as to the reasons why she was determined to oppose
bail Ms Perumal said
that some of the teachers at the school had
threatened the investigating officer and this was one of the reasons
which motivated
her to oppose bail. She did however concede that
there was nothing to suggest on the evidence before her that the
plaintiff had
in any way associated himself with
those persons who may have been intimidating the
investigating
officer. A further factor which influenced her decision
was that the plaintiff had handed himself over to the police four
days
after the police had initially sought him out. She was of the
view that the plaintiff should have handed himself over immediately.
She however could not dispute that by arrangement between the
plaintiff and the arresting officer, he was allowed to remain at
large until he reported to the police station on 22 November 2011.
[49] The prosecutor further
stated that she had no idea at the time of the bail application
that
the child’s grandmother had given an interview to the
newspapers in which she had stated that the child had been having
an
emotional problem two weeks prior to the incident. When this scenario
was put to her, in the context of the J88 not specifying
that there
were any fresh tears to the child’s hymen, she still did not
concede that this would have created doubt as to
the credibility of
the child that she had been raped on the same day when she reported
the incident to her aunts. Despite all of
this, the prosecutor
maintained that she believed that the State had a strong case against
the plaintiff.
[50] It bears noting that
following the charge laid against the plaintiff, a DNA analysis
was conducted to ascertain whether any traces of the plaintiff’s
DNA could be found on the clothing items of the complainant.
. The
analysis concluded that there was no evidence to link the plaintiff
to having sexually assaulted the complainant. The DNA
analysis only
appears to have come to the plaintiff’s attention in August
2012, after which he had already spent close on
to nine months
in custody.
[51] The prosecutor conceded that
she did not bring to the attention of the defence counsel
the
contradictory statements which she knew or ought to have known of in
her docket. Again, despite the evidence in her possession,
the
prosecutor submitted to the court that the State had an
overwhelmingly strong case against the plaintiff.
[52]
It was only after a lengthy cross-examination did the prosecutor, in
response to questions
posed from the bench, concede that with
hindsight the statement of the fellow teacher at the plaintiff’s
school, Ms Mkhize,
ought to have been brought to the attention of the
magistrate, together with fact that the child had been threatened
with a beating
before implicating the plaintiff. Ms Perumal further
accepted that had this information being brought to the attention of
the magistrate;
it could have influenced her decision. I interpreted
this response to mean that the magistrate could have come to a
different conclusion
on bail. Finally, Ms Perumal stated that “
if
she had more time
”, she could have asked the investigating
officer to carry out further investigations”. She seemed to
suggest, without
saying so, that due to the work pressure on her as a
prosecutor, if she had the luxury of more time to prepare for the
bail application,
she may have asked for the matter to be adjourned
for further investigations to be done. Finally, and to her credit, on
reflection
of what had been put to her in cross-examination by the
plaintiff’s counsel, Ms Perumal accepted that she may
inadvertently
have misled the court by not placing certain
information before it.
[53] The last witness called by
the defendants was Magistrate Bothma who presided over the
bail
application of the plaintiff. Under cross-examination the Magistrate
conceded that her judgment in the bail application was
based on the
evidence before her at the time and she was accordingly restricted to
these facts alone.
[54] The plaintiff then
testified, who at the time was employed as a Deputy Principal and
Head of Department at a public school. He confirmed that the
complainant’s family visited his school on Friday, 18 November
2011 to report an incident which had allegedly taken place on
Wednesday, 16 November 2011. On Monday 21 November 2011 the plaintiff
stated that he handed himself over to the police and made an
appearance in court the following day. His bail application was heard
on 29 November 2011 and judgment was eventually handed down on 12
December 2011. The plaintiff remained in custody awaiting trial,
and
was eventually acquitted on14 December 2012.
[55]
The plaintiff’s evidence was largely consistent with that which
he gave at his bail
application and at his criminal trial, which
resulted in an acquittal. He confirmed the transcripts of both of
these proceedings,
which were admitted into evidence by consent of
the parties. He described the scene where the alleged rape took place
in his
classroom, which featured a broken door as
well as broken windows, with a
pedestrian
path alongside. The incident is alleged to have
taken place during a lunch break when other learners would have
been
playing outside the classroom. Given the setting of where the
incident is alleged to have taken place, the suggestion from the
plaintiff is that someone would have easily seen or heard what was
taking place in the classroom, particularly if the complainant
cried
during the ordeal. There was also some doubt as to the time when the
complainant said the incident had allegedly taken place,
in as much
as the plaintiff says he would have been on lunchbreak at the time,
and that would have been from 09h00 to 10h00, and
not at midday when
the incident is said to have taken place.
[56] In relation to the J88 which
indicates that the complainant informed the doctor that she
had been
penetrated by a male teacher, without a condom, the plaintiff pointed
out that a DNA analysis had been conducted, which
failed to find any
traces of semen on the clothing items of the complainant. In so
far as his incarceration after having
been refused bail, the
plaintiff stated that he attempted to appeal against the decision of
the magistrate but this application
did not proceed as he had run out
of funds. He further stated that his application for legal aid was
turned down due to his employment
status as a teacher. This is
corroborated by a notation by the magistrate in the court file. He
also denied that he had any particular
friendship with his colleague,
Ms Mkhize, who failed to support the version of the complainant as an
eyewitness to the alleged
rape.
[57] Under cross-examination he
stated that it was only during the criminal trial that it had
been
revealed that the complainant had implicated him as the alleged
perpetrator, after she had been threatened or had received
a hiding
from her aunt. The plaintiff further stated that he had initially
been informed that a teacher at the school had witnessed
the incident
involving himself and complainant. He did not approach Ms Mkhize to
testify on his behalf as she had been identified
as a State witness.
It emerged also that only in July 2012 did it become known that Ms
Mkhize would no longer be called by the
state, and was made available
as a witness to the defence. The plaintiff confirmed that he had done
everything possible to try
to secure his release on bail, and that he
had acted with due speed and diligence in the circumstances.
[58] The plaintiff called Ms
Mkhize as a witness. She confirmed that she was employed as an
educator at the same school as the plaintiff at the time of the
alleged rape of the complainant, whom she had also known as a learner
at the school. She categorically denied that she had seen the
plaintiff in a compromising position with the complainant or in the
act of raping the learner. She stated plainly that she had never seen
such an incident and that she had made a statement to the
police to
this effect, possibly around 18 November 2011. This is important as
her statement would have been in the police docket
at the time of the
bail application. This is no doubt correct, as the investigating
officer in his evidence at the bail application
referred to it as a
‘
defensive
’ statement without revealing to the
court exactly why he formulated that view.
[59] Ms Mkhize further indicated
that she had no idea why the child would have falsely implicated
the
plaintiff in such an incident. It is significant that nothing
was put to Ms Mkhize during her cross-examination
suggesting
that she may have been unduly influenced or threatened by the
plaintiff or members of his family to alter her evidence
to exonerate
the plaintiff.
[60] This concluded the evidence
of the parties, after which the matter was adjourned to 29
March 2019
for the purpose of argument and the submission of heads of argument.
[61] It is not in dispute that
the defendants bear the onus to prove that the detention of
the
plaintiff was lawful. Both the investigating officer and the
prosecutor at the bail application testified that they were bound
by
a duty to act fairly and lawfully to the plaintiff and to respect his
rights, including that of liberty. It was submitted
in argument
by the plaintiff’s counsel that contrary to such duty, both the
investigating officer and the prosecutor failed
to disclose to the
presiding magistrate hearing the bail application of the contents of
Ms Mkhize’s statement; that the first
report by the complainant
to her aunt was inadmissible because of the existence of the
knowledge that the implication of the plaintiff
only arose after the
complainant was threatened with a beating; that the investigating
officer failed to carry out certain investigations
including the
interviewing of the children in the complainant’s class and
that the complainant gave conflicting explanations
to her aunts as to
why she was crying.
[62] In light of this, it was
submitted by Mr
Singh
that had the magistrate been in
possession of all of these facts, she probably would have granted the
plaintiff bail. In fact, in
response to a question posed by the Court
to the prosecutor at the conclusion of her evidence, Ms Perumal
conceded that with
hindsight and knowledge of all of the facts
which emerged at the trial, the affidavit of Ms Mkhize should have
been brought
to the attention of the magistrate together with the
revelation that the child had been beaten or threatened with a
beating before
implicating the plaintiff. In her words, she perhaps
may have “inadvertently” misled the court.
[63] I am in agreement with the
submission that if these facts had been placed before the magistrate
a different scenario would have presented itself to the court. Taking
into account that in terms of s 60(11) of the CPA, where
the onus
rests on the accused to satisfy the court that it is in the interests
of justice that he be released on bail, the omitted
facts would have
militated against the supposed strength of the State’s case
against the plaintiff. There would have been
‘question marks’
over the credibility of the child’s version that the plaintiff
was the perpetrator of the rape,
particularly if the court hearing
the bail application was made aware of the circumstances under which
the first report was made
and that a material witness to corroborate
the version of the single child witness had distanced herself from
the allegations made
by the child.
[64] It was submitted by Ms
Khuzwayo
on behalf of the defendants that the denial by
Ms Mkhize that she saw the plaintiff either raping or in a
compromising position
with the child is not “decisive” as
“it is known that witnesses are threatened which could have
been the reason
why she denied having witnessed the incident”.
This denial of the incident, it was contended, must be weighed
against the
fact that neither the prosecutor, the investigating
officer nor the arresting officer had any doubt that the child
had identified the plaintiff as the rapist.
[65]
The approach of the prosecutor was based entirely on what had been
placed before her by
the investigating officer. There is nothing
before the court to suggest that Ms Peramal made any
attempt to obtain
additional information regarding
the offence or attempted to secure corroboration for the
State’s case.
In fact, when questioned at the end of her
evidence, the prosecutor conceded that if she had more time she would
have asked for
the matter to be further investigated.
[66] I find no basis for the
submission that Ms Mkhize was threatened. Firstly, it suggests
that
Ms Mkhize was threatened to change her version. This is entirely
based on speculation, only because her version did not suit
the ends
of the prosecution and the investigating officer. Second, there is no
evidence to suggest that Ms Mkhize ever changed
her version. She was
consistent from the outset that she never witnessed the incident as
alleged by the child. The contention that
she was threatened to
tailor her version and her evidence to suit the plaintiff is
unfounded and a serious indictment
on the character of the witness.
This was also never put to the witness when she gave evidence.
[67] While counsel for the
defendants’ devoted much attention in her written submissions
to the aspect of malicious prosecution, this was not the case of the
plaintiff. The plaintiff made it clear from the outset that
the
allegation against him, concerning a child of nine years old, was
serious to justify an arrest and prosecution of the perpetrator.
The
plaintiff’s case is that after the allegations had been
levelled against him, the State prosecutor and the investigating
officer, not necessarily acting in collusion, had failed in their
public law duty to bring material facts to the attention of the
court
which could have cast a completely different complexion on the
strength of the State’s case against the plaintiff.
In this
regard the plaintiff relied on
Woji
where the
Investigating Officer testified that he had identified the Woji as a
robber after viewing a video recording. That identification
proved to
be erroneous. The court said the following at para 28:
‘The
Constitution imposes a duty on the state and all of its organs not to
perform any act that infringes the entrenched rights
such as the
right to life, human dignity and freedom and security of the person.
This is termed a public law duty. See
Carmichele v Minister of
Safety and Security and another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 44. On the facts of this
case Inspector Kuhn, a policeman in the employ of the state, had a
public law duty not to violate
Mr Woji’s right to freedom,
either by not opposing his application for bail, or by placing all
relevant and readily available
facts before the magistrate. A breach
of this public law duty gives rise to a private law breach of Mr
Woji’s right not to
be unlawfully detained which may be
compensated by an award of damages. There can be no reason to depart
from the general law of
accountability that the state is liable for
the failure to perform the duties imposed upon it by the
Constitution, unless there
is a compelling reason to deviate from the
norm. Mr Woji was entitled to have his right to freedom protected by
the state. In consequence,
Insp Kuhn’s omission to perform his
public duty was wrongful in private law terms. See
Minister of
Safety and Security and another v Carmichele
2004 (3) SA 305
(SCA) paras 34-38 and 43.’
[68] The investigating officer,
who was a key witness for the defendants, did not make a good
impression on the court. As stated earlier, he tendered to be
evasive, non-committal about answers and sought to avoid or deflect
responsibility for matters falling within his knowledge and
authority. In my view, he withheld evidence which would have been
crucial for the court hearing the bail application to assess the
strength of the State’s case. His explanations for these
omissions, in light of his public law duty, are simply unconvincing.
I am of the view that he was probably driven to oppose bail
because
of public sentiment over the serious nature of the allegations. The
plaintiff was sacrificed to satisfy the need to make
an early arrest
and keep the offender behind bars, despite the paucity of evidence
against him even at the time of the bail application.
The situation
confronting the police was not made any easier by the first report
made by the complainant. Despite the seriousness
of the allegations
following the sexual assault on a nine year old child, the police
ought to have investigated the matter more
thoroughly before making
an arrest, and even while the plaintiff was in custody awaiting his
bail application. The investigating
officer was content to rest on
the version of the complainant, which was uncorroborated. The
plaintiff was eventually vindicated
when he was acquitted, but by
this time he had spent more than a year in custody.
[69] The plaintiff had been held
in custody from 22 November 2011 until his release on 14 December
2012. It was argued that this period also included
detention pursuant to a lawful order of the magistrate, and any
detention found to be unlawful should take this factor into account.
I am not persuaded by this argument as it had been intention
of
the investigating officer from the outset to oppose bail and he was
instrumental in withholding vital evidence from the court.
[70] There is no basis for a
finding of liability against the second and fourth defendants.
It is
only the first and third defendant’s employees who were
instrumental and responsible for the plaintiff not being
granted bail
in circumstances where he should have.
[71] I am satisfied that the
plaintiff has established his case on liability, on a balance
of
probabilities, against the first and third defendants only.
Order
[72]
In the result, I issue the following order:
(a)
The
plaintiff’s detention from 22 November 2011 until 14 December
2012 is found to be unlawful.
(b)
The
first and third defendants are jointly and severally liable to
compensate the plaintiff for such damages as may be agreed
or proved
in respect of his unlawful detention from 22 November 2011 until 14
December 2012, the one paying the other to be absolved.
(c)
The
first and third defendants are jointly and severally liable, the one
paying the other to be absolved, for the plaintiff’s
costs of
suit.
Chetty J
Appearances
For the Plaintiff
:
Mr V Singh
Instructed
by:
Viren Singh & Company
239 Mathews Meyiwa Road
Greyville, Durban
Ref:
V SINGH / cj/ B256
Tel:
031 312 8866
For
the Defendants :
Adv. N Z Kuzwayo
Instructed
by:
State Attorney (KZN)
6
th
Floor, Metropolitan Life Building
391 Anton Lembede Street, Durban
Tel:
031 365 2544
Ref:
M
Hlope / 32 / 002415/13/B/P26
Dates of hearing
18 - 20 November 2015; 29 March 2017; 25 October
2017;
13 – 14 March 2019, 29 March 2019
Date reserved:
29
March 2019
Date delivered:
30
July 2019