Minister of Justice and Constitutional Development and Others v Moleko (131/07) [2008] ZASCA 43; [2008] 3 All SA 47 (SCA) ; 2009 (2) SACR 585 (SCA) (31 March 2008)

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[2008] ZASCA 43
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Minister of Justice and Constitutional Development and Others v Moleko (131/07) [2008] ZASCA 43; [2008] 3 All SA 47 (SCA) ; 2009 (2) SACR 585 (SCA) (31 March 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 131/07
Reportable
In the matter between:
THE MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT ...
First
appellant
THE DIRECTYOR OF PUBLIC PROSECUTIONS
...
Second Appellant
THE MINISTER OF SAFETY AND
SECURITY
...
Third Appellant
and
SEKELE MICHAEL MOLEKO
...
Respondent
Coram
:
Farlam
&
Van
Heerden JJA et Kgomo AJA
Heard:
12 March 2008
Delivered:
31 March 2008
Summary: Malicious
prosecution – requirements for –– act or omission by magistrate
in the exercise of his judicial functions
–section 60(11)(a) of
Criminal Procedure Act 51 of 1977 –release on warning of persons
charged with Schedule 6 offences without
any evidence being led.
Neutral
citation: This judgment may be referred to as
Minister
for Justice & Constitutional Development v Moleko
(131/07)
[2008] ZASCA 43 (31 March 2008)
JUDGMENT
VAN HEERDEN JA:
Introduction
The
respondent, Mr Moleko, instituted an action for damages in the
Transkei High Court against the Minister for Justice and
Constitutional
Development (the first appellant), the Director of
Public Prosecutions (DPP) (the second appellant) and the Minister of
Safety
and Security (the third appellant) based on his alleged
malicious prosecution by the defendants. By agreement between the
parties,
the trial in the court a quo was confined to the merits of
the claim, with the question of quantum standing over for later
determination
if necessary.
Matthee AJ
held that Mr Moleko had established that he was the victim of a
malicious prosecution and that, as a result of such
prosecution, his
dignity and self-respect were impaired. The learned judge ordered
the first and third appellants (the two Ministers)
to pay the costs
of the matter, jointly and severally. The present appeal comes
before us with leave of this court granted on petition.
(A further
claim by Mr Moleko, based on his alleged unlawful arrest, was
dismissed by the trial court and no cross-appeal has been
noted
against that part of the judgment.)
Mr
Moleko is a magistrate at Engcobo in the Eastern Cape. On 16 January
2002 whilst he was presiding as a magistrate, a case involving
three
persons accused of armed robbery and ‘hijacking’ came before
him. Two of the accused (accused no’s 2 and 3) were in
custody
after they had previously been refused bail by another magistrate at
Engcobo in October 2001, after a fully-fledged bail
hearing. Accused
no 1, who appears to have been arrested shortly before the other
two, had been released by Mr Moleko on bail of
R500, with the
agreement of the control prosecutor, Mr Nogcanzi, on 13 September
2001, without any evidence being led.
The
other two accused were due to appear in court on 16 January 2002 in
order for them to bring a renewed bail application based
on new
facts. However, on that day, only one of them appeared in court, the
other apparently being ill and in hospital. The defence
attorney, Mr
Songo, thus informed the prosecutor, Mr Mgudlwa, that he would
request a postponement for hearing of the bail application
and a
suitable date was set. According to Mr Mgudlwa, the State was at
that stage ready to proceed to trial and was awaiting a
date in the
regional court.
From
the record before Mr Moleko, it appeared that the two accused had
been in custody since their arrest in September of the previous
year. The matter had been postponed on a number of occasions since
the accused first appeared in court. When Mr Mgudlwa called
the
matter, Mr Moleko expressed his displeasure at the fact that accused
no’s 2 and 3 had been in custody since September 2001
and
intimated that he was intent on releasing them on warning. According
to Mr Mgudlwa, he expressly informed Mr Moleko that the
accused were
charged with Schedule 6 offences and of the provisions of
s 60(11)(a)
of the
Criminal Procedure Act 51 of 1977
.
1
He also allegedly drew Mr Moleko’s attention to the fact that the
previous bail application by the two accused had been rejected,
that
the investigation had been completed and that the matter was ready
to be postponed for a regional court date, but for the
fresh bail
application which had been arranged for that date (16 January 2002).
In the event, however, Mr Moleko granted the request
for a
postpone­ment to a specified date, but ordered the release on
warning of both accused until such date.
The
State immediately brought an urgent appli­cation in the Transkei
High Court to review and set aside Mr Moleko’s order
releasing the
accused on warning. On 25 January 2002, the High Court issued a rule
nisi
, which rule was confirmed four days later, setting aside
Mr Moleko’s earlier order. This led to the re-arrest of the two
accused
and the sub­sequent decision by the DPP to prose­cute
Mr Moleko for ‘defeating the course of justice in contravention
of
section 40(a)
and/or (c) of the Transkei Penal Code, 1983, read with
sections 17 and 32 of the Transkei Penal Code’.
2
In the charge sheet it was alleged that Mr Moleko –
‘
(…) did unlawfully, with the
intent to defeat and/or obstruct and/or prevent the course of justice
and
mala fide
,
commit an act to wit
Releasing an accused person, charged with offences in
terms of Schedule 6 of Act 51 of 1977, on warning contrary to the
provisions
of Section 60 of Act 51 of 1977 and/or;
Releasing an accused person on warning without receiving
evidence contrary to section 60(11)(a); and/or
Failing to implement the relevant provisions of section
60 of Act 51 of 1977 after he had been informed that it was
applicable.’
At his
subsequent trial in the regional court, Mr Moleko was eventually
acquitted of the charge. This gave rise to his claim for
damages for
malicious prosecution which forms the subject of the present appeal.
Claim for malicious prosecution: requirements
In
order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove –
that
the defendants set the law in motion (instigated or instituted the
proceedings);
that the defendants acted without reasonable and probable cause;
that the defendants acted with ‘malice’ (or
animo
injuriandi
);
3
and
that
the prosecution has failed. (In this case, of course, Mr Moleko was
acquitted at the end of his criminal trial and requirement
(d) need
detain us no further.)
Ad (a) – Instigation or institution of proceedings
The
trial judge dealt with the first requirement rather perfunctorily,
finding that it was clear ‘that various servants of the
appellants
were all involved in setting the law in motion which led to the
prosecution of the plaintiff’. According to the trial
judge, he
understood counsel for the appellants to have conceded this point.
Leaving
aside the fact that the court cannot be bound by an incorrect
concession by a litigant with regard to a legal issue, it
was
sub­mitted before us that the trial judge erred in failing to
have regard to the fact that the prosecution occurred at
the
instance of the DPP and that the role of the police was merely to
gather relevant information.
With
regard to the liability of the police, the question is whether they
did anything more than one would expect from a police officer
in the
circumstances, namely to give a fair and honest statement of the
relevant facts to the prosecutor, leaving it to the latter
to decide
whether to prose­cute or not.
4
On
behalf of
the third appellant (the Minister of Safety and
Security), a certain Captain Gwayi (attached to the Serious Violent
Crimes Unit
based in Mthatha) testified that, as a result of a
report (‘in the nature of a complaint’) by one of his
subordinates, Inspector
Didiza, he went to Engcobo on 17 January
2002 to investigate the events giving rise to the complaint.
Inspector Didiza’s complaint
related to the abovementioned
incident on 16 January 2002. Captain Gwayi interviewed the public
prosecutor involved (Mr Mgudlwa)
and also spoke to the senior public
prosecutor (Mr Nogcantsi) and to the Chief Magistrate. He was told
that Mr Moleko was on leave.
Mr Mgudlwa ‘echoed’ Inspector
Didiza’s complaint about how Mr Moleko had released two accused on
warning despite the fact
that they were charged with Schedule 6
offences which ‘required an enquiry about bail to be heard’. Mr
Mgudlwa informed him
that he was going to report the matter to the
DPP in Mthatha.
It is
important to note that the case docket in this matter (about which
more later) contains two affidavits deposed to by Captain
Gwayi,
both of which refer to a letter (what he calls ‘an official
correspondence’) written by him to ‘both the Local Prosecutor
and Magistrate of Engcobo . . . appealing for the review of Mr
Moleko’s decision /ruling of releasing the robbery accused on
warning’. This letter, dated 17 January 2002, also forms part of
the case docket (as document B.1). It is addressed by Captain
Gwayi
to the Chief Magistrate and the Control Prosecutor of the Engcobo
Magistrate’s Court and purports to be a formal complaint
against
‘the judicial officer, Mr Moleko’. In this letter, Captain Gwayi
recounts the report given to him by Inspector Didiza
regarding the
incident on 16 January 2002 during which Mr Moleko had released on
warning two persons charged with Schedule 6 offences
without hearing
any evidence and ‘without making any enquiries to other role
players who are very conversant with the merits
of the case nor
referring to the court record that was [available] to him as to what
the reasons for such “elongated” detention
were’. He also
stated that the ‘other role players’ (referring to the public
prosecutor (Mr Mgudlwa), the investigating officer
(Inspector
Didiza) and the defence attorney (Mr Songo) ‘were more than ready
to proceed with the formal bail application but
he (Mr Moleko)
simply [shouted] everybody down’. Captain Gwayi asked for answers
to a series of questions posed in the letter
and requested the
addressees of the letter to treat it seriously. There is no
indication in the case docket or in the record that
either the chief
magistrate or the control prosecutor ever responded to this letter.
Captain
Gwayi eventually received an instruction from Mr Lusu, the Head of
the Office of the DPP in Mthatha, to investigate the
matter. He
therefore returned to the Engcobo Magistrate’s Court on 5 February
2002, that being the day on which, according to
his information, Mr
Moleko was due to return from his leave. He informed Mr Moleko of
the nature of the charges which were being
investigated against him,
first at the Magistrate’s Court and thereafter at the police
station opposite the court. At the request
of Mr Moleko, he agreed
to continue the interview on 7 February 2002 at Mr Moleko’s
office.
On 7
February 2002, Captain Gwayi met with Mr Moleko at the Engcobo
Magistrate’s Court and informed him of the allegations against
him
and of his constitutional rights. Mr Moleko elected to make a
‘warning statement’ and wrote it out himself. Captain Gwayi
issued Mr Moleko with a ‘provisional summons’ for trial,
provisional in the sense that the matter had to be returned to the
office of the DPP for further instructions. The Captain filed Mr
Moleko’s warning statement in the case docket which was thereafter
submitted to the office of the DPP for a decision. On 19 February
2002, the DPP’s office informed Captain Gwayi of its decision
to
prosecute Mr Moleko and the latter was then arraigned for trial at
the regional court in Mthatha.
Captain
Gwayi testified that he had nothing to do with the decision to
prosecute Mr Moleko – he merely conducted the investigation
and
collected evidence. As far as he was concerned, the decision to
prosecute was ‘the prerogative of the National Prosecuting
Authority’.
Based
on these facts, it is clear to me that Captain Gwayi at all times
acted on the instructions and under the direction of the
office of
the DPP. Neither he nor any other policeman employed by the third
appellant was responsible for the decision to prosecute
the
plaintiff. For this reason alone, I am of the view that the appeal
must therefore succeed in so far as the third appellant
is
concerned.
As far
as the first appellant, the Minister for Justice and Constitutional
Development, is concerned, the
National Prosecuting Authority Act 32
of 1998
provides that the Minister exercises final responsibility
over the national prosecuting authority established in terms of s
179
of the Constitution, but only in accordance with the provisions
of that Act (s 33(1)). Thus, the National Director of Public
Prosecutions
(NDPP) must, at the request of the Minister, inter alia
furnish her with information in respect of any matter dealt with by
the
NDPP or a DPP, and with reasons for any decision taken by a DPP,
‘in the exercise of their powers, the carrying out of their duties
and the performance of their functions’ (ss 33(2)(a) and (b)).
Furthermore, the NDPP must furnish the Minister, at her request,
with information regarding the prosecution policy and the policy
directives determined and issued by the NDPP (ss 33(2)(c) and
(d)).
However, the prosecuting authority is ‘accountable to Parliament
in respect of its powers, functions and duties under this
Act,
including decisions regarding the institution of prosecutions’ (s
35(1)). It is therefore clear that the Minister (the first
appellant) is not responsible for the decision to prosecute Mr
Moleko and the appeal must also succeed as far as the first
appellant
is concerned.
It follows that the remaining
requirements are only relevant insofar as they concern the potential
liability of the DPP.
Ad (b): Absence of reasonable and probable cause
Reasonable
and probable cause, in the context of a claim for malicious
prosecution, means an honest belief founded on reasonable
grounds
that the institution of proceedings is justified. The concept
there­fore involves both a subjective and an objective
element
5
–
‘
Not
only must the defendant have subjectively had an honest belief in
the guilt of the plaintiff, but his belief and conduct must
have
been objectively reasonable, as would have been exercised by a
person using ordinary care and prudence.’
6
Mr
Moleko was charged with defeating or obstructing the course of
justice. The essential elements of this crime at common law
7
are
described by JRL Milton
South
African Criminal Law and Procedure
Vol
II
Common
Law Crimes
3ed
(1996) as follows (p 102):
‘
Defeating
or obstructing the course of justice consists in unlawfully doing an
act which is intended to defeat or obstruct and which
does defeat or
obstruct the due administration of justice.’ (
Footnote
omitted.)
It
is immaterial whether the alleged conduct has merely a tendency to
defeat or obstruct the course of justice or is capable of
defeating
or obstructing the course of justice.
8
Counsel
for the appellants pointed out that the
actus
reus
which
forms the basis of a charge of defeating or obstructing the course
of justice may take a number of different forms,
9
and
contended that the unlawful and unprocedural release by a judicial
officer of an accused person may fall within the type of
conduct
which may be characterised as defeating or obstructing the course of
justice. For the purposes of this judgment, I will
assume in favour
of the appellants that this proposition may well, in appropriate
(and, it is to be hoped, rare) circumstances,
indeed be correct.
In
determining whether or not the decision by the DPP to prosecute Mr
Moleko amounted to malicious prosecution, it must also be
remembered
that, in the relevant charge sheet,
10
the
State alleged that Mr Moleko had acted ‘with the intention to
defeat and/or obstruct and/or prevent the course of justice
and
mala
fide
’
.
11
Ms
Neveling, the Senior State Advocate in the office of the DPP in
Mthatha who took the ultimate decision to prosecute Mr Moleko,
testified that at the time she took this decision, she had before
her the following documents:
the case docket, a copy of which was, by agreement between the
parties, handed in to the court a quo at the conclusion of the
trial;
12
the ‘warning statement’ by Mr Moleko, which formed part of the
abovementioned docket; and
affidavits
by Mr Mgudlwa and by Inspector Didiza (both of whom were present in
court on 16 January 2002), which affidavits were
used in support of
the urgent application (launched in the Transkei High Court on 24
January 2002) to set aside Mr Moleko’s
order of 16 January 2002
releasing the two accused on warning.
13
According
to Ms Neveling, she also had before her at that time an affidavit by
the interpreter who was on duty in the Engcobo Magistrate’s
Court
at the time the incident took place on 16 January 2002.
14
However, as this affidavit was only deposed to on 15 May 2002 and
her decision to prosecute was taken by no later than 19 February
2002, this was clearly not the case.
Ms
Neveling testified further that her office has a manual produced by
the National Prosecuting Authority (NPA), containing policy
directives for all NPA employees dealing with,
inter alia
,
the making of decisions whether or not to prosecute. This NPA policy
manual contains specific provisions dealing with judicial
officers.
In her words:
‘
[W]e
have to treat those matters with the utmost tact and . . . we have
to be obviously very sure when we take decisions against
judicial
officers. But also the penal code [the Transkei Penal Code, 1983]
section 17 . . . [a]lso has a specific provision in
this regard . .
. the judicial officers will not be held responsible or liable for
acts or omissions committed by them in the execution
of their duty
if that omission or act was committed
bona
fide
. . . . [T]hat
was obviously also one of the considerations that I had to take into
account in deciding whether to prosecute or
not.’
Ms
Neveling stated that it appeared from the case docket that a
possible crime of defeating the ends of justice had been committed
and that Mr Moleko was ‘linked to that offence’
.
On
the documents before her at the relevant time, she was convinced
that there was a reasonable prospect of a ‘successful prosecution’
of Mr Moleko:
‘
It
was in my view from the affidavits before me, and even from the
warning statement made by Mr Moleko himself. . . clear that there
[was] definitely evidence of
mala
fides.
I
made a decision on the 19 of February to charge him with defeating
the ends of justice’
.
At the
time of making her decision, Ms Neveling did not know (and did not
know of) Mr Moleko, had never had any dealings with him,
and had
never received any complaints about him.
Under
cross-examination, it was put to Ms Neveling that, once the Transkei
High Court had on 29 January 2002 set aside Mr Moleko’s
order, it
was not necessary for the DPP to prosecute him. Her response was as
follows:
‘
.
. . I disagree with that. It is our duty . . . I had the statements
the affidavits under oath in my possession and from that it
was
clear that a crime had been committed. It’s our duty then to make
decisions on those kind of things. As I have said we had
to take
into consideration also the circumstances surrounding that. From the
affidavit . . . it was clear that there [was]
mala
fides
. That we had
to make a decision to prosecute.
Not
only for that specific case, but also to prevent any other further
cases like that happening
.’
(Emphasis added.)
It appears from Ms Neveling’s evidence that, in concluding that Mr
Moleko had acted in bad faith, she had relied on three aspects
of
the ‘evidence’ before her at the time:
Mr Moleko had released the two accused, including the one in
hospital, despite the ‘fact’ that he had been informed by the
prosecutor that they were charged with Schedule 6 offences and that
they had previously been refused bail by another magistrate.
She
also relied on the fact that, in his warning statement, Mr Moleko
had said that he was ‘a seasoned magistrate, implying thereby
. .
. that he knows the Criminal Procedure Act.’
Mr Moleko had said to the accused who was in court on the relevant
day ‘that he is being punished by the State without being
found
guilty’. From this she had ‘gained the impression’ that Mr
Moleko had already made up his mind to release the accused
from
custody.
She
had also ‘gained the impression’ that Mr Moleko was ‘in
principle against’ all accused persons being held in custody.
As
regards point (c) above, Matthee AJ pointed out in his judgment (in
my view correctly) that no evidence was led to support this
opinion
and that it was ‘puzzling how she could arrive at this opinion in
the light of her evidence that she ‘did not know
the Plaintiff [Mr
Moleko] and had previously never received any report about him’.
Ms
Neveling’s evidence as a whole makes it clear that her decision to
prosecute Mr Moleko for the crime of defeating or obstructing
the
course of justice was not based
only
on the fact that he had,
in contravention of
s 60(11)(a)
of the
Criminal Procedure Act,
released
the two accused on warning without any evidence being
heard. When asked by the court a quo how she drew the distinction
between
a judicial officer acting inconsistently with the
Criminal
Procedure Act and
hence irregularly (or ‘just making a bad legal
decision’), on the one hand, and acting with
mala fides
, on
the other, she responded as follows:
‘
[M]y
understanding of the difference is that once you have established
whether he has acted irregularly is then to establish whether
it was
a
bona fide
mistake, or whether there
[was]
mala fides
involved in that specific
action. So . . . my understanding is that the irregular acting comes
first, and once that has been established,
then you establish
whether it was a
mala
fide
act,
or whether it was a
bona
fide
mistake
if I can put it that way.’
In this regard, Ms Neveling also
testified that:
‘
I
think the factors that I have mentioned to your Lordship those
factors definitely indicated
mala
fides
to
me . . . I think if it was merely a bad mistake, once the correct
facts were brought to his attention he would have acted differently
. . . both the fact that the bail had already been refused, as well
as the fact that it was a Schedule 6 offence. . . if he made
a
mistake on one of the two. In my opinion that would still be
understandable. But the correct facts were brought to his attention,
and despite that he still released them. . . I think also in the
warning statement it was never Mr Moleko’s version that he made
just a mistake that he wasn’t aware. I was in possession of his
warning statement when I made the decision.’
According
to Ms Neveling, Mr Moleko’s version was that:
‘
[I]n
his warning statement he said that he agreed that he
released
them out on bail
.
That it was a Schedule 6 offence,
he
was aware of the fact that it was Schedule 6 offences
.
But that he had the interest of the accused at heart, as some
accused had previously died in Butterworth in holding cells at court
. . . He also referred to the fact if I remember correctly, to the
effect that the police and the Prosecutors lied to him. . .
that
accused are being punished . . .
[T]hat
explanation coupled with what happened in court on that day to me
indicated
mala
fides
.’
(
Emphasis added.)
There
are several serious factual inaccuracies in the abovequoted portions
of Ms Neveling’s evidence. First, Mr Moleko did
not
state
in his warning statement that he was aware of the fact that Schedule
6 offences were involved. On his version as set out
in the warning
statement –
‘
.
. . the Public Prosecutor brought such a bulky roll after 4.00 pm
and I was refusing to take such cases and he appealed to me
just do
the “Remands” and as such [there was no] time to read the
records of such cases due to [the] lateness of [the] hour
. . .
[a]fter all I did not know that such cases were at any stage heard
[by] or brought [before] any particular magistrate . .
. I also
[did] not undermine any rulings previously given by Mr Nangu [the
magistrate who had dismissed the previous bail application
by
accused no’s. 2 and 3] as I was not even aware that a ruling
regarding this case was ever given the other way.’
This
version, together with the fact that Mr Moleko referred to the case,
in his warning statement, as ‘case no. 851/2001 (Engcobo)
being a
charge of Robbery [not
armed
robbery] – three counts’,
should in my view certainly have alerted Ms Neveling to the
reasonable possibility that, at the time
Mr Moleko decided to
release the two accused on warning, he was
not
aware of the
fact that the charges against the accused were Schedule 6 offences
or that a bail application previously brought by
the two accused
before another magistrate had been refused.
It is
true that, at the time Ms Neveling made her decision to prosecute,
she had ‘in front of’ her the affidavits deposed to
on 24
January 2002 by Mr Mgudlwa and by Inspector Didiza in support of the
abovementioned urgent application to the Transkei High
Court. In his
‘founding affidavit’, Mr Mgudlwa stated the following:
‘
I called the matter and as I was
about to inform the first respondent [Mr Moleko] of the
arrangements, he addressed the second respondent
[accused no. 2],
enquiring from him whether he had been in custody since his arrest
in September [2001]. As the second respondent
replied in the
affirmative, the first respondent became infuriated . . . The first
respondent then said that the prosecutor and
police are punishing
the second respondent without being found guilty . . .
Mr Songo [the defence attorney for both accused]
attempted to explain the position to the first respondent but was
prevented by
the first respondent who ordered the immediate release
of the second respondent as well as the release of the third
respondent
[accused no. 3] in his absence . . .
I
informed the first respondent that the second and third respondents
are charged with Schedule 6 offences and that they had to
show
exceptional circumstances to the court before release. I also drew
his attention to the fact that the previous bail application
by the
respondents was refused. I further informed the first respondent
that all investigation had been finalised and the matter
was ready
to be postponed for a regional court date, but for the application
for bail which had been arranged for that day, to
wit 16 January
2002. The first respondent did not give any attention to my
submissions.’
In his
‘supporting affidavit’, Inspector Didiza stated that he had read
the affidavit deposed to by Mr Mgudlwa, and that he
confirmed the
‘the contents thereof as being true and correct as [he] was
present in court at all material times’. He further
stated that
‘[t]he crimes committed by the second and third respondents are of
an extremely serious nature’.
While
these affidavits supported Ms Neveling’s evidence to the effect
that Mr Moleko
was
informed by the prosecutor that the
accused were charged with Schedule 6 offences and that a previous
application for bail had
been rejected by another magistrate, there
were also other documents in the case docket before her (quite apart
from Mr Moleko’s
warning statement referred to above – about
which more later), which should have alerted her, as a reasonable
senior state advocate
in her position, that these affidavits did not
necessarily reflect what had happened on 16 January 2002 fully
and/or with complete
accuracy. So, for example, the case docket also
contained (as document A.2) a so-called ‘Sworn Declaration’ by
Mr Mgudlwa (although
it was not in fact made under oath). The
relevant parts of this statement read as follows:
‘
The
presiding officer, Mr Moleko,
mero
motu
enquired from
accused no. 2 if he had been in custody since September 2001. Upon
receiving a response in the affirmative he became
angry saying that
the prosecutor and the police are punishing him before he is found
guilty by the court, that it is the duty of
the State to expedite
the matter. He then ordered that the accused person be released on
warning. He actually ordered that he must
right away leave the court
room. He said this is something that he can’t allow unless he does
not know why he is here in the
first place. He went on to say it
would otherwise be better for him to leave the service.
I
tried my level best to reason with him,
stating
that in this matter we are only awaiting a date in the Regional
Court. I also pointed out that
the offence is
quite serious.
I told him that a formal bail
application was moved by Mr Songo before Mr Nangu and that the State
succeeded in refusing bail.
All my pleas fell
on deaf ears.
’ (Emphasis added.)
The
case docket that Ms Neveling had at her ‘disposal’ at the time
she made the decision to prosecute also contained another
affidavit
deposed to by Inspector Didiza on 24 January 2002 (document A.3 in
the docket), viz the same date as that upon which
Inspector Didiza
deposed to his abovementioned supporting affidavit. In the former
affidavit, the following relevant passages appear:
‘
On the 2001-12-20 the case was
postponed to the 2002-01-16 for [a] bail application, the accused
were supposed to give new facts.
On the 2002-01-16 all parties were
present except one suspect who was at hospital for medication. This
case is at regional court
for trial; at district court it was just
for bail application.
The prosecutor called the case and the attorney
appeared for accused no. 2 and no. 3. Then he addressed the court
explaining that
he was not going to proceed with [the] bail
application.
Before giving the reasons, the
magistrate Mr Moleko ordered him to sit down.
The
magistrate asked . . . the accused whether [he was] in custody for .
. . a long time and [he] agreed. The same question was
asked to the
prosecutor.
The prosecutor tried to explain what was happening
to the case since the arrest of the accused until 2002-01-16.
Without listening
to the PP, the magistrate ordered him to sit down
. . .
The magistrate said that police and public prosecutor
were punishing the suspects before being found guilty by the court
of law.
He said he would not allow their conduct. He said he would
be failing in doing his job if he allowed the conduct [cited] above.
He attacked the police and the public prosecutor in a [bad] manner.
. .
He
ordered the suspects to go out on warning. No bail conditions were
given to them. Necessary administration was not done on the
release
of suspect because Mr Moleko was very angry. The police and public
prosecutor were betrayed by the magistrate to the suspects
and the
public.’
To
return to Mr Moleko’s warning statement, Ms Neveling, on her own
evidence, also had regard to this statement before making
her
decision to prosecute Mr Moleko. As appears from the extracts from
her evidence quoted above, she testified that, in this warning
statement, Mr Moleko said that he was aware of the fact that the
accused were charged with Schedule 6 offences and that –
‘
in
spite of that he ordered the accused to be released
not
even on warning.
To
be released without hearing any evidence’.
(Emphasis
added.)
Once
again, this evidence is incorrect in two material respects. First,
as indicated above, nowhere in his warning statement does
Mr Moleko
state that he was on the relevant date aware of the fact that the
accused were charged with Schedule 6 offences. Second,
Mr Moleko did
not
order the accused to be released without a warning. Under
cross-examination, it was put to Ms Neveling that Mr Moleko had
testified
that he had given the two accused a date upon which they
had to return to court. She replied that, as far as she could
remember,
this was not the case. However, she later testified, in
response to questions posed by Matthee AJ, that Mr Moleko had indeed
‘released
the accused on warning’.
The
handwritten record of the proceedings in the case against the three
accused is contained in the case docket (as document B.4)
and was
thus also before Ms Neveling at the time she made her decision to
prosecute. From this handwritten record, unfortunately
sketchy
though it is,
15
it appears that on 16 January 2002, Mr Moleko released accused no’s
2 and 3 from custody and at the same time warned them to
appear
before the Engcobo Magistrate’s Court on 11 February 2002, the
date to which he postponed the matter. It also appears
from the
handwritten record for 13 September 2001 that accused no.1, who was
charged with the same offences as accused nos. 2 and
3, was on that
date released on bail of R500, without any evidence being led. The
handwritten notes for both 13 September 2001
and 16 January 2002 are
in the same handwriting (thus obviously that of Mr Moleko). On the
other hand, the handwritten record of
the proceedings in respect of
the previous bail application brought in October 2001 by accused
no’s 2 and 3, including the arguments
advanced by the defence
attorney on 5 October 2001 in support of the bail application and
the response by the public prosecutor
(again Mr Mgudlwa), are in a
different handwriting altogether.
The
fact that it was evident from the case docket that one of the three
accused persons, all of whom were charged with the same
Schedule 6
offences, had previously been released on bail of R500, without any
evidence being led, should in my view reasonably
have alerted Ms
Neveling, as a senior state advocate, to the need to make further
enquiries as to precisely what had happened in
the criminal case up
to 16 January 2002. She did not do so.
As
already stated, Ms Neveling testified that she considered Mr
Moleko’s warning statement before taking her decision to prosecute
him. (It is unfortunately necessary, for the purposes of this
judgment, to quote from this warning statement in some detail.) The
statement (dated 7 February 2002) contains the following relevant
passages:
‘
On the day in question ie
16/01/2002 I was in the normal execution of my duties as a
Magistrate at Engcobo Magistrate’s Court.
Among the cases which I
presided over, there also was a case no. 851/2001(Engcobo) being a
charge of Robbery – 3 counts.
The accused were called in . . . and it appeared that,
from the explanation from the Prosecutor Mr Mgudlwa that one accused
person
was in absentia, due to [his] being extremely sick and
therefore only one accused person appeared before court on that day
. .
.
I personally made enquiries further about the
convalescence of that absentee whether he was in . . . police
custody or whereabouts
[he was] and the Public Prosecutor gave a
confusing answer by saying he does not know where the sickly accused
person was. As a
Presiding Judicial Officer, I was greatly concerned
when the Accused could not stand . . . trial and the Public
Prosecutor could
not give a direction. I further asked the Public
Prosecutor as to what he wanted the Court to do if he did not know
the whereabouts
of such an extremely sick accused person.
It is at this stage that both the Public Prosecutor Mr
Mgudlwa and the Accused’s Legal Representative Mr Songo both stood
up to
make explanations . . . the Court ended up not clear as to
what was really taking place.
I asked Mr Mgudlwa further as to why this case was . .
. not ready to be taken for trial as it appeared that [the] Accused
persons
had been . . . incarcerated [since their arrest]. He then
told me that he did not have the Police Docket with him. I further
told
Mr Mgudlwa the PP of my concern for the long dragging [out of]
the case and with no indication as to when it would be tried . .
.
I then told the Public Prosecutor that, I would come to
the rescue of the State as I do not want people to die in the hands
of the
Police. I further [said] that the Public Prosecutor does not
. . . indicate whether the Accused (absentia) was either
hospitalised
or where he was. I further asked as to when did the man
(Accused) become sick; whether the Police have taken him to a
Doctor; where
is the Doctor’s certificate. All the details that
were asked by the Court (myself) to Mr Mgudlwa were unanswered as he
did not
know.
The Public Prosecutor (Mr Mgudlwa) was extremely
confused. Then I told the Prosecutor that, lest the man (Accused)
dies in the hands
of the State, I am remanding the Accused on
warning so that the relatives could engage in taking the man
[Accused] for medical
attention as a matter of [urgency] . . .
Due to such . . . confusion that was brought [about] by
the Public Prosecutor, I therefore stated that as soon as all the
questions
asked . . . are cleared [up] to the court, then the
“Prison Stay” can always be re-arranged.
My
action of the day was not in bad faith at all but was directed at
the welfare of both the State and that of the Accused person.
. . .
Responding to the allegations of . . . defeating the
ends of justice, I was not at all acting to commit such crimes. . .
I remember
that when telling the Prosecutor about the plight of
Accused that die in the hands of the State, I quoted to him the
incident of
Butterworth, where a prisoner died in Court lock-up
cells.
As
a Magistrate, I feel that my actions were appropriate and aimed at
the welfare of the Accused and to safeguard the State . .
. The
Public Prosecutor was not helpful at all towards the court about
things which needed clarity as he (the Public Prosecutor)
was just
confused.’
(Emphasis added.)
On Ms
Neveling’s own evidence, the documents referred to above were
before her when she took her decision to prosecute Mr Moleko.
As
illustrated, these documents contained various allegations which
were contradictory in many important respects. This being so,
I am
of the view that Ms Neveling should reasonably have been aware of
the very real possibility that,
if
Mr Mgudlwa had indeed
informed Mr Moleko
16
that the two accused were charged with Schedule 6 offences, that
they had to show exceptional circumstances to the court before
release, and that a previous bail application brought by them had
been refused, Mr Moleko’s ‘anger’ and ‘fury’ was such
that
he simply did not hear this. Indeed, Mr Mgudlwa himself said, in his
earlier statement referred to above, that ‘all [his]
pleas fell on
deaf ears’.
Moreover,
Inspector Didiza, in the other affidavit (not his ‘supporting
affidavit’) to which he deposed on 24 January 2002,
alleged that
when Mr Mgudlwa tried to explain to Mr Moleko what had happened in
the criminal case from the time of arrest of the
accused up to 16
January 2002, Mr Moleko ordered Mr Mgudlwa to sit down ‘without
listening to him’.
This
very real possibility that, during the incident in question, Mr
Moleko – who was variously described as having been ‘infuriated’,
‘very angry’ and ‘very disturbed’ upon being informed by
accused no 2 that he and accused no 3 had been incarcerated since
their arrest in September 2001 – is further borne out by what
Captain Gwayi said in his abovementioned letter of complaint dated
17 January 2002 (document B.1 in the case docket). To reiterate,
Captain Gwayi stated that, although Mr Mgudlwa, Inspector Didiza
and
the defence attorney Mr Songo ‘were more than ready to proceed
with the formal bail application’, Mr Moleko was not prepared
to
listen to anybody and ‘simply [shouted] everybody down’.
Upon
reading Mr Moleko’s warning statement, Ms Neveling knew that Mr
Moleko was adamant that he had
not
acted in bad faith on the
day in question, but that all his actions had been taken in the
interests of ‘the welfare of the accused
and to safeguard the
State’. As appears from the extracts quoted above, Mr Moleko twice
expressed his concern that accused no.
3 – who, he said, was
‘extremely sick’ according to the explanation given to him by Mr
Mgudlwa – might ‘die in the hands
of’ the State. He also
referred to an incident at Butterworth, where ‘a prisoner had died
in the Court lock-up cells’. Ms
Neveling herself testified to the
effect that:
‘
.
. . in his warning statement he said . . . that he had the interest
of the accused at heart, as some accused had previously died
in
Butterworth in holding cells at court’.
It is
quite clear from her evidence that, although aware of these serious
allegations made by Mr Moleko, Ms Neveling made no queries
in this
regard prior to taking her decision to prosecute him. She testified
that she had not been informed of, nor was she aware
of, a problem
of overcrowding in cells in Engcobo, or of (to use the words of
Matthee AJ during the trial) ‘some sort of decision
locally to try
and address that issue . . . that people not be kept in custody for
too long’. However, she conceded that she
was aware of a big
national campaign to address the problem of overcrowding in prisons,
to reduce the number of awaiting-trial
prisoners and the ‘number
of cases and backlogs on rolls’. This national campaign included
the area under her jurisdiction.
In
respect of the requirement of ‘absence of reasonable and probable
cause’ for Mr Moleko’s prosecution, counsel for the appellants
submitted that Matthee AJ had in effect based his judgment upon a
‘central consideration of judicial independence’. Counsel
contended that the learned judge seemingly elevated this principle
to ‘an almost immutable rule’.
In the
relevant part of his judgement, Matthee AJ stated as follows:
‘
Section
1(c)
of Act 108 of 1996 (hereafter “the constitution”) makes it
clear that the rule of law is one of the cornerstones of the
constitution.
Central to the implementation of the rule of law is
the role of judicial officers. Section 165 of the constitution makes
this role
clear. If judicial officers are to perform the duty set
out in section 165(2) it goes without saying that they
inter
alia
must
be free from any fear whatsoever that they might be arrested and/or
prosecuted as a result of them performing their judicial
duties,
even where their application of the law is completely wrong. (This
obviously cannot exempt judicial officers from criminal
prosecution
where for example they have accepted a bribe to make a certain
finding.) This principle is so fundamental and obvious
that anything
submitted contrary to it only needs to be stated to be rejected.
Sections 165(3) and 165(4) of the constitution emphasises
that there
is a special responsibility on all organs of state to help judicial
officers perform their constitutional duties.’
To my
mind, this is too strongly stated. It is correct that the
independence of the judiciary is enshrined in s 165 of the
Constitution,
the relevant subsections of which provide as follows:
‘
(1) The judicial authority of the
Republic is vested in the courts.
(2) The courts are independent and subject only to the
Constitution and the law, which they must apply impartially and
without fear,
favour or prejudice.
(3)
No person or organ of state may interfere with the functioning of
the courts.’
These
provisions make it clear that, whilst the courts are independent,
they are nevertheless subject to the Constitution and the
law. A
discussion of the principle of judicial independence, as enshrined
in the Constitution, is certainly not necessary for the
purpose of
this judgment. Suffice it to say that, in
De Lange v Smuts NO
,
17
the Constitutional Court (per Ackermann J) stated that –
‘
Judicial
officers enjoy complete independence from the prosecutorial arm of
the State and are therefore well-placed to curb possible
abuse of
prosecutorial power.’
So
too, in
Van Rooyen v The State
,
18
Chaskalson CJ stated that:
‘
In
deciding whether a particular court lacks the institutional
protection that it requires to function independently and
impartially,
it is relevant to have regard to the core protection
given to all courts by our Constitution, to the particular functions
that
such court performs and to its place in the court hierarchy.
Lower courts are, for instance, entitled to protection by the higher
Courts should any threat be made to their independence. The greater
the protection given to the higher Courts, the greater is the
protection that all courts have.’
Referring
specifically to the magistrate’s courts, Chaskalson CJ pointed
out
19
that ‘magistrates are entitled to the protections necessary for
judicial independence, even if not in the same form as higher
Courts.’
20
All
this being so, however, the provisions of s 165(2) of the
Constitution
21
compel the conclusion that the fundamental principle of judicial
independence cannot simply be equated with a principle of immunity
of judicial officers from criminal prosecutions for all acts and/or
omissions in the exercise of their judicial functions, irrespective
of the circumstances of the individual case. It goes almost without
saying that the criminal prosecution of judicial officers for
such
acts and/or omissions will – and must – remain an extraordinary
and exceptional step. Any decision by the office of the
DPP to
prosecute a judicial officer must be taken with the utmost caution,
due regard being had to the fundamental principle of
judicial
independence, but also to the related principle that judicial
officers are subject to the Constitution and the law and
thus cannot
be completely immune from criminal prosecution,
in appropriate
cases
, for their acts and/or omissions in the exercise of their
judicial functions.
In
Relyant Trading (Pty) Ltd v Shongwe
,
22
this court stated the following:
The
requirement for malicious arrest and prosecution that the arrest and
prosecution be instituted “in the absence of reasonable
and
probable cause” was explained in
Beckenstrater
v Rottcher and Theunissen
[1955
(1) SA 129
(A) at 136A-B]
as
follows:
“
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information
as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having
such information, the defendant is shown not to
have believed in the plaintiff’s guilt, a subjective element comes
into play and
disproves the existence, for the defendant, of
reasonable and probable cause.”
It
follows that a 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 an arrest or
prosecution exists the conduct of the defendant instigating it is

not wrongful. The requirement of reasonable and probable cause is a
sensible one: “For 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 whom they believe to have committed offences, even if
in so doing they are actuated by indirect and improper motives”
[see
Beckenstrater v Rottcher and Theunissen
at 135D-E].
23
(Footnotes omitted.)
In
this case, Ms Neveling – although by her own admission aware of
the provisions of s 17 of the Transkei Penal Code, 1983, and
of the
‘utmost tact’ and caution required in making any decision to
prosecute a judicial officer for something done or omitted
in the
exercise of his or her judicial functions
24
– did
not
in my view exercise the requisite ‘ordinary
care and prudence’
25
in making the decision to prosecute Mr Moleko.
It
would appear that Ms Neveling did not even ascertain whether Captain
Gwayi had received any response, from either the chief magistrate
or
the control prosecutor of the Engcobo Magistrate’s court to his
abovementioned letter dated 17 January 2002
26
(document B.1 in the case docket) before deciding to prosecute Mr
Moleko. Her decision was taken by no later than 19 February 2002,
just more than one month after the date of the incident (16 January
2002) forming the subject of the subsequent prosecution.
It can
hardly be said that,
objectively
, Ms Neveling took such
reasonable measures as could be expected of someone in her position
to inform herself fully of what had
happened on 16 January 2002 and
whether this provided ‘reasonable and probable cause’ for Mr
Moleko’s prosecution. This means
that Mr Moleko in my view
discharged the
onus
of proving absence of reasonable and
probable cause and thus satisfied the second requirement of a claim
for malicious prosecution.
Ad (c)
‘Malice’ or
animus injuriandi
In the
Relyant
case,
27
this court
28
stated the following in regard to the third requirement:
Although
the expression “malice” is used, it means, in the context of the
actio
iniuriarum
,
animus
iniuriandi
.
In
Moaki
v Reckitt & Colman (Africa) Ltd and another
Wessels
JA said:
“
Where
relief is claimed by this
actio
the
plaintiff must allege and prove that the defendant intended to injure
(either
dolus
directus
or
indirectus
).
Save to the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into account in
fixing the
quantum
of
damages, the motive of the defendant is not of any legal relevance.”
’
In so
doing, the Court decided the issue which it had left open in
Lederman v Moharal Investments (Pty) Ltd
29
and again in
Prinsloo v Newman,
30
namely that
animus injuriandi
, and not malice, must be proved
before the defendant can be held liable for malicious prosecution as
injuria
.
31
Animus
injuriandi
includes not only the intention to injure, but also
consciousness of wrongfulness:
‘
In this regard
animus
injuriandi
(intention)
means that the defendant directed his will to prosecuting the
plaintiff (and thus infringing his personality), in the
awareness
that reasonable grounds for the prosecution were (possibly) absent,
in other words, that his conduct was (possibly) wrongful
(consciousness of wrongfulness). It follows from this that the
defendant will go free where reasonable grounds for the prosecution
were lacking, but the defendant honestly believed that the plaintiff
was guilty. In such a case the second element of
dolus
,
namely of consciousness of wrongfulness, and therefore
animus
injuriandi
, will
be lacking. His mistake therefore excludes the existence of
animus
injuriandi
.’
32
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at
least have foreseen the possibility that he or she was acting
wrongfully, but nevertheless continued to act, reckless as to
the
consequences of his or her conduct (
dolus eventualis
).
33
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.
34
In
this case, I am of the view that Mr Moleko did prove
animus
injuriandi
on the part of the DPP. Ms Neveling clearly intended
to prosecute Mr Moleko and was fully aware of the fact that, by so
doing,
he would in all probability be ‘injured’ and his dignity
(‘comprehending also his . . . good name and privacy’)
35
in all probability negatively affected. Despite this knowledge, she
took the decision to prosecute without making any of the enquiries
which cried out to be made, thus acting in a manner that showed her
recklessness as to the possible consequences of her conduct.
Costs
It
follows that the appeal by the second appellant must fail, while the
appeal by the first and third appellants succeeds. In this
regard,
counsel for the appellants conceded that, if this were the outcome
of this appeal, then the second appellant must be held
liable for Mr
Moleko’s costs.
Conclusion
I would therefore make the
following order:
The appeal by the first and third appellants succeeds.
The appeal by the second appellant is dismissed.
The second appellant is ordered to pay all the costs of the
appeal.
Paragraph
5 of the order of the court a quo to the effect that ‘the first
and third defendants jointly and severally are liable
for the
costs of the matter’ is set aside and replaced with the
following:
‘
The
second defendant is liable for the costs of the matter.’
B J VAN HEERDEN
JUDGE OF APPEAL
Concur:
FARLAM JA
KGOMO AJA
1
Section
60(11)(a) provides that:
‘(11) Notwithstanding any provision of this Act, where an accused
is charged with an offence referred to â€“
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.’
(The effect of this subsection is discussed by
the Constitutional Court in
S v
Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC) paras 61 to 65.)
2
Section
17 reads as follows:
‘Except as expressly provided by this
Code, no judge or other judicial officer shall be criminally liable
for anything he has
done or omitted in good faith in the exercise of
his judicial functions, even if the act so done was in excess of his
judicial
authority or if he was bound to do the act omitted.’
In terms of s 40 of the Code:
‘
Any person who –
accuses any person falsely of any crime or does anything to
obstruct, prevent, pervert or defeat the course of justice; or
. . .
obstructs or in any way interferes with or knowingly prevents the
execution of any legal process, civil or criminal, shall be
guilty
of an offence’.
3
See
Relyant Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA)
para 5, referring to
Lederman v Moharal Investments (Pty) Ltd
1969 (1) SA 190
(A) at 196G–H;
Thompson v Minister of Police
1971 (1) SA 371
(E) at 373F-H and J Neethling, JM Potgieter &
PJ Visser
Neethling’s Law of Personality
2 ed (2005) pp
124-125 (see also pp172-173 and the authorities there cited). Cf 15
Lawsa
(
sv
‘Malicious Proceedings’ by DJ
McQuoid-Mason) (reissue, 1999 para 441; François du Bois (General
Editor)
Wille’s Principles of South African Law
9 ed (2007)
pp 1192-1193; LTC Harms
Amler’s Precedents of Pleadings
6
ed (2003) p 238-239.
4
Prinsloo
& Another v Newman
1975 (1) SA 481
(A) at 492C–F and 495A.
See also 15
Lawsa
op cit
para 445.
5
Prinsloo
v Newman
at 495H and the cases referred to therein. See further
Relyant Trading (Pty) Ltd v Shongwe
para 14.
6
15
Lawsa op cit
para 449 and the authorities there cited. See
also
Wille’s Principles of South African Law
pp 1193-1194.
7
Which
for the purposes of this case are clearly the same under s 40 of the
Transkei Penal Code (see note 2 above).
8
JRL
Milton
op
cit
p
117
.
9
JRL
Milton
op cit
pp 118 et seq and the authorities there cited.
10
The
wording of which is quoted in
para 6 above.
11
Emphasis
added.
12
The
docket did not form part of the record and copies thereof were only
furnished to this Court on 4 March 2008 at the request of
the
presiding judge.
13
These
affidavits and the Notice of Motion with which they were filed were
contained in the docket, but also formed part of the record
before
Matthee AJ.
14
Copies
of w
hich also did not form part of the record and
were only furnished to this Court on 26 February 2008 at the request
of the presiding
judge.
15
In
view of the fact that the magistrate’s courts are courts of
record.
16
As
Mr Mgudlwa stated under oath in his abovementioned ‘founding
affidavit’.
17
[1998] ZACC 6
;
1998
(3) SA 785
(CC) para 63
18
2002
(5) SA 246
(CC) para 23.
19
Para
28.
20
See
also
Travers v National Director of Public Prosecutions
2007
(3) SA 242
(T) paras 20
et seq
and the numerous authorities
there cited.
21
Quoted
in para 54 above.
22
[2007]
1 All SA 375
(SCA) para 14.
23
See
also 15
Lawsa op cit
paras
449-450 and 452;
J Neethling, JM Potgieter & PJ Visser
Neethling’s Law of Personality
2 ed (2005) pp 176-179 and
the authorities cited by these authors.
24
See
para 26 above.
25
See
15
Lawsa op cit
para 449 and see also para 452.
26
P
ara
13 above.
27
Para
5.
28
Referring
to
Heyns v Venter
2004 (3) SA 200
(T) para 12 at 208B;
Moaki
v Reckitt & Colman (Africa) Ltd
1968 (3) SA 98
(A) at 104A-B
(see also 103F-104A); Neethling et al
op cit
124-125 (see
also 179-182).
29
1969
(1) SA 190
(A) at 196G-H.
30
1975
(1) SA 481
(A) at 491H-492B.
31
But
cf 15
Lawsa op cit
para
455;
Wille’s Principles of South
African Law
1194-1196 and Harms
op
cit
pp 238-239.
32
Neethling
et al p 181.
33
See
Heyns v Venter
paras
13-14.
34
See
Relyant Trading
para
5; but cf
Heyns v Venter
para
14 at 209C-H.
35
See
Relyant Trading
para 5.