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[2019] ZAECMHC 71
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Funani v National Director of Public Prosecution (1296/2016) [2019] ZAECMHC 71 (5 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO. 1296/2016
Date heard:
16 October 2019
Date
delivered: 05 November 2019
In
the matter between:
SIPHELO
FUNANI
Plaintiff
And
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
Defendant
JUDGMENT
ZONO AJ
INTRODUCTION
[1]
The plaintiff instituted an action for damages against the Minister
of Police for
unlawful arrest and detention on the one hand, on the
other for malicious prosecution against the National Director of
Public Prosecutions
(NPA). In respect of the claim for unlawful
arrest and detention against the Minister of Police the claim was
under two heads,
namely:
(i) Contumelia -
R 100 000-00
(ii) Loss of amenities of
life -
R10 000-00
In respect of the claim
for malicious prosecution against NPA the claim is under two heads
namely:
(i)
Malicious prosecution - R300 000-00
(ii)
Contumelia - R300 000-00
HISTRORY
OF PLEADINGS
[2]
Plaintiff’s pleaded case is that he was unlawfully and
wrongfully arrested and
detained by members of the South African
Police Service on 21 May 2012 and subsequently released on warning to
appear at Ngqeleni
Mgistrate’s Court on 11 June 2012.
He further avers that on 11 June 2012 and at Ngqeleni Magistrate’s
Court
the prosecutor, acting within course and scope of his
employment with the National Director of Public Prosecutions,
wrongfully
and maliciously set the law in motion by laying a false
charge of a breach of a protection order against him without any
reasonable
and justifiable cause. The NPA, when prosecuting the
plaintiff had no reasonable belief in the truth of the information
given
by his wife but nonetheless proceeded with the prosecution
without investigation and with the sole intention of defaming the
plaintiff
which has a resultant effect of injuring his reputation and
dignity. Lastly he avers that, as a result of lack of evidence
the said charges could not be sustained and the plaintiff was found
not guilty and was discharged on 10 September 2012. That
concludes plaintiff’s averments in the Particulars of claim.
[3]
The claim is defended and in so doing on 12 September 2019 the
defendants delivered
their Plea. The defendants aver that a
certain warrant officer Ntshongwane telephonically called the
plaintiff advising him
about the case his wife had opened against him
and the officer arranged to meet with him as he was in Cape Town.
On his return
the plaintiff went to the police station and made a
statement to the police about the incidents of the case. The
docket was
thereafter referred to the prosecutor for decision and a
decision was lawfully taken by the public prosecutor to prosecute the
plaintiff on a charge of having contravened Section 17(A) read with
Section 1
,
7
,
8
and
18
(1) of the
Domestic Violence Act 116 of 1998
in
that the plaintiff breached or contravened a term of a Protection
Order that was confirmed and made final on 30 April 2012.
The
plaintiff was subsequently warned to appear at Ngqeleni Magistrate’s
Court on 11 June 2012. Plaintiff’s case
was postponed on
several occasions until 10 September 2012 when it was finalised.
[4]
On 7 June 2018 the plaintiff effected amendment to his particulars of
claim, in terms
of which he jettisoned the claim against the Minister
of Police for unlawful arrest and detention. All averments
relating
to the claim for unlawful arrest and detention were sifted
out, leaving in the particulars of claim those averments relating to
the malicious prosecution. Effectively what remained was a
claim against the NPA. During trial the only party against whom
the
matter was proceeded with was the National Director of Public
Prosecutions.
IN
COURT
[5]
At trial stage, the dispute between the parties narrowed itself down
to the claim
for malicious prosecution. Shorn of all other evidential
issues, parties pre trial minute dated 3 September 2019 records
Issues
for determination as follows:
The issue for determination
as whether there was probable cause for defendant to prosecute
.
No application for separation of issues was made. Parties
agreed to proceed on both merits and quantum. It was
recorded
that plaintiff bore duty to begin. Only plaintiff led
evidence. After plaintiff led evidence, the plaintiff
closed
its case. The defendant did not lead any evidence. The
matter was argued on the basis of plaintiff’s evidence.
I
shall now turn to deal with plaintiff’s evidence.
[6]
The plaintiff testified that on 5 May 2012 he was at his Ngqeleni
home when his first
wife, Mangwanya Betriece Funani arrived, in the
company of their son, Thozamile. At the time of arrival of the
plaintiff’s
wife and Thozamile, the plaintiff was with the
herder, sitting in the sitting room. It was on a very cold
day. On their
arrival Thozamile left the door opened and the
heater that was the source of warmth in the room was blown by the
cold wind that
was coming through the opened door. Upon
instructing Thozamile to close the door, Thozamile became staborn and
refused to
close the door. Plaintiff instructed Thozamile to
close the door three times but that instruction was never heeded.
The plaintiff consequently stood up to close the door himself.
As the plaintiff was going towards the door, Thozamile grabbed
him
and a struggle ensued as the plaintiff was closing the door,
Thozamile was opening it. The plaintiff gave up and sat
down in
the cold room.
[7]
Sequel to that Thozamile called the police who did not come and as a
result of that
plaintiff’s wife and Thozamile went back to
Mthatha. The plaintiff emphasized that during the whole ordeal
between
Thozamile and him, nothing was said between him and his
wife. As the plaintiff and his wife are not living together,
they
had an appointment to discuss family finances, and the fact that
they left caused him to be confused as he had not achieved the
purpose of the meeting, namely to talk to his wife. He
testified that he is not in good terms with Thozamile, especially
after the plaintiff got married to the second wife. He
testified that Thozamile does not like his second wife and her
children.
He further stated that as he is a man with some
assets, Thozamile is so much concerned and jealousy about that and
does not want
them to be shared. He attributed sour relations
between him and Thozamile to gluttony and greed on the part of
Thozamile.
Thozamile is concerned about the inheritance.
Plaintiff described relations with his wife as sweet. He stated
that
Thozamile badly influenced his first wife against him.
[8]
The plaintiff revealed that there is a protection order against him
in terms of which
his first wife was granted relief in the following
terms:
not to assault, threaten to assault or kill, insult, shout,
harass, intimidate applicant, not to evict or lock out the applicant
from the premises……, not to destroy, damage, sell or
dispose of any items, stock or property without consent of the
applicant.
The court order was obtained on 30 April 2012.
The plaintiff confirmed knowledge of the court order and its terms.
It further transpired that there was a criminal case emanating from
the breach or contravention of the term of a protection order
dated
30 April 2012. It is the aforementioned criminal proceedings
that gave rise to the present proceedings. The plaintiff
is of
a strong view that it is Thozamile who influenced his first wife to
open a criminal case against him. He mentioned
that he at no
stage, contravened a term of the protection order aforesaid.
The plaintiff went on to explain the negative
impact caused by the
opening of the criminal case against him and stated that he suffered
extreme humiliation to his family, neighbours
and fellow
congregants. His dignity was trumped upon. The fact of
being called an accused person stigmatized him.
That concluded
his evidence in chief.
[9]
The counsel for the defendant decided not to cross examine.
Following from the
question from then court, the plaintiff testified
that the prosecutor should have shown that he was wrongly accused and
should
have foreseen that. He should have known that his wife
was being influenced by Thozamile. No basis was laid for that
notwithstanding probe to that effect. The plaintiff thereafter
closed his case. The defendant chose not to call any
witness
and consequently closed its case. It is from this evidence that
I have to determine whether or not the plaintiff
has made out a case
for judgment in his favour both on merits and quantum. Facts
that are common cause and those that are
in dispute were crystalized.
[10]
It became a common cause that the defendant set the law in motion by
instigating or instituting
the criminal proceedings. The
defendant made common cause with the plaintiff that criminal
proceedings against the plaintiff
terminated in plaintiff’s
favour. The plaintiff was altimately found not guilty. I
need not deal any further
with the aforesaid issues, save only when
dealing with the law applicable in this case.
[11]
It is very much in dispute that the defendant acted without
reasonable and probable cause and
with malice.
Damages as they are a consequential requirement of liability, was a
disputed fact.
[12]
An anterior question has to be asked and answered with reference to
applicable legal principles.
Who bears the onus of proof?
What is required to be proved in the light of the facts and nature of
the present case and evidence
already tendered? The basic rules
governing the incidence of the onus of proof have been set out in the
case of
Pillay v Kristine and Another
1949 AD 946
at 941-2.
The three rules are:
“
(a)
If a person claims something from another in a court of law, then he
has to satisfy the court
that he is entitled to it;
(b)
………………………………
(c)
He who asserts, proves and not he who denies, since a denial of a
fact cannot naturally
be proved provided that it is a fact that is
denied and that the denial is absolute.” This is a
general legal principle
generally applicable to matters serving
before a court of law.
[13]
In order to succeed in an action for malicious prosecution
the
plaintiff must show the
following:
(a)
That the defendant instituted or instigated proceedings;
(b)
That the defendant acted intentionally or with animus iniuriandi;
(
c)
That the defendant acted without reasonable and probable cause;
(d)
That the defendant was actuated by an improper motive or
malice;
(e)
That the proceedings terminated in the plaintiff’s favour, and
(f)
That plaintiff suffered damage.
[1]
Amler’s
precedents of pleadings, seventh edition at
page 274 deals
with the incidence of onus of proof as follows: To succeed with
a claim for malicious prosecution, a claimant must allege
and
prove
that
(a)
the defendants set the law in motion – they instigated or
instituted the proceedings;
(b)
the defendants acted without reasonable and probable cause;
(c)
the defendants acted with malice (or animo iniuriandi); and
(d)
the prosecution has failed
[2]
. This put hand paid to the question of onus of proof in the
present case, whether or not parties have agreed, plaintiff
bears
onus of proof.
[14]
I have, in the preceding paragraphs indicated that it was conceded by
defendant’s counsel
during argument that instigation of
criminal proceedings was at the instance of the defendant, and that
the proceedings terminated
in plaintiff’s favour. That
concession accords with the defendant’s plea. Having made
that concession defendant’s
counsel went further and submitted
and that the plaintiff still has a duty to prove to the court that
the defendant, when instigating
the criminal proceedings did that
without any reasonable and probable cause; that the defendant acted
with malice or with the intention
to injure the plaintiff. He
argued strongly that the plaintiff has failed to prove the elements,
and therefore the claim
must fail.
[15]
On the other hand plaintiff‘s counsel seem to have pinned his
faith on the fact that the
plaintiff was acquitted of the criminal
charges against him. He further submitted that the fact of the
acquittal was enough
a proof that the defendant did not have enough
information in the first place and should not have prosecuted the
plaintiff.
That showed, so the argument went, that the
defendant acted without reasonable and probable cause. The
upshot of his submission
is that the plaintiff has succeeded to
prove, by reason of the acquittal, that the defendant acted without
reasonable and probable
cause, and ultimately has proved all the
necessary elements of a claim for malicious prosecution. With
regard to the question
of malice, he submitted that it exists side by
side with the element of acting without reasonable and probable
cause. He
understood, so he argued, the element of malice to be
part of the element of acting without reasonable and probable cause.
[16]
Submissions by counsels depend entirely on whether or not they are
congruent with the evidence
and the law. I may at this stage
state that I had fully set out plaintiff’s evidence
deliberately without sifting salient
facts so that the nature,
quality and its relevance may be viewed objectively side by side with
the applicable law.
[17]
Nowhere in the whole tenor of evidence in chief did the plaintiff
criticise the action and motive
of the relevant member of
prosecution. I say evidence in chief because there was no cross
examination. Absence of reasonable
and probable cause can only
be proved with reference to subjective and objective elements.
Not only must the defendant has
subjectively had an honest belief in
the guilt of the plaintiff, but his or her belief and conduct must
have been objectively reasonable,
as it would have been exercised by
a person using ordinary care and prudence.
[3]
The plaintiff must prove that the proceedings were instituted without
reasonable and probable cause.
[4]
The test is objective in that when it is alleged that a defendant had
no reasonable cause for prosecution it means that he
or she did not
have such information as would lead a reasonable person to conclude
that the plaintiff had probably been guilty
of the offence
charged.
[5]
I was never
referred to any information by the plaintiff that was at the disposal
of the defendant at least at the time of
instigation of the
proceedings. I am unable to objectively say the information at
the disposal of the defendant when criminal
proceedings were
instituted was insufficient as I am not privy to what was or was not
at the disposal of the defendant at the relevant
time. I find
that the plaintiff has failed to discharge a duty rested on him to
prove that the defendant at the relevant
time did not have such
information as would lead a reasonable person to conclude that the
plaintiff had probably been guilty of
the offence.
[18]
With regard to the subjective element, if despite his or her having
such information the defendant
is shown not to have believed in
plaintiff’s guilt the subjective element comes to play and
disproves the existence of the
reasonable and probable cause.
Again it is underscored that it is the plaintiff who bears onus to
prove that this did occur.
It is difficult if not impossible to
prove this element without first have regard and reference to the
first element of absence
of reasonable and probable cause (objective
element). These two elements feed off each other. One
does not exist without
the other. To prove absence of
reasonable and probable cause the plaintiff must prove that the
defendant either did
not honestly believe that the plaintiff was
guilty of the offence charged or if the defendant did have such
belief and even if
he or she held it honestly, that such belief was
not based on information which would persuade a person of ordinary
discretion
and prudence to believe in the plaintiff’s guilt.
The plaintiff did not even attempt to deal in his evidence with the
belief the defendant had when instigating proceedings. I am
unable to discern from plaintiff’s evidence whether or
not
defendant harboured honest belief in the guilt of the plaintiff.
The plaintiff has failed to prove the subjective of
element as well.
The upshot of that failure to prove this element is that the
plaintiff has failed to prove that the defendant
acted without
reasonable and probable cause.
[19]
I turn to deal with plaintiff’s submission that malice does not
have to be proved because
it is part of the absence of reasonable and
probable cause. I disagree. As I have outlined in this
judgment, malice
or improper motive on the part of the defendant is
an independent or standalone requirement of malicious prosecution
claim.
It is incumbent upon the plaintiff to prove that the
defendant was actuated by an improper motive or malice. This
submission
was a manifestation and recognition of plaintiff’s
failure to prove this element. The plaintiff did not seek to
argue
that this element was proved, but only argued that it is piggy
backed by and implied in the requirement of absence of reasonable
and
probable cause. Even if I was wrong in my analysis of
requirement of absence of reasonable and probable cause, plaintiff’s
case would still fail on this point and implied concession.
[20]
Although the expression “
malice
”
is used, the claimant’s remedy in a claim for malicious
prosecution lies under the
actio
injuriarum
and that what has to be proved in this regard is
animus
injuriandi.
[6]
[21]
A person who acts in a gross negligent and reckless manner
,
and does so in
the furtherance of his or her own interest without due regard to the
rights of others and careless as whether he or she interferes
with the liberty of another, will be regarded as having been
influenced by improper motives equivalent to malice.
[7]
If the defendant had any motive other than that of having the
plaintiff convicted he or she was actuated by malice.
The
plaintiff did not in his evidence suggest that the defendant had
motive other than of getting plaintiff arrested. Even
during
argument no suggestion or what so ever was made to that effect.
If plaintiff failed to prove his case against the
defendant who else
should have? It is the plaintiff who must face the consequences
of not having enough evidence to hold
the defendant liable.
[22]
Quite apart from other elements, the plaintiff must prove that the
defendant had the necessary
animus
iniuriandi
.
[8]
Animus
iniuriandi
includes not only the intention to injure but also consciousness of
wrongfulness.
[9]
No
attempt was made both in evidence and in argument that defendant had
intention to injure plaintiff, accompanied by consciousness
of
wrongfulness. Plaintiff’s evidence was devoted to the
squabbles and relations the plaintiff had with his son Thozamile
on
one hand, on the other with his first wife. The remainder of it
was spent on speculation and conjecture. It was
based on no
version of fact that the prosecutor concerned should have known that
plaintiff’s first wife was influenced by
his son Thozamile to
lay criminal complaint against him.
[23]
Plaintiff’s submission that because the plaintiff was acquitted
or found not guilty is
evidence enough to prove that the defendant
acted without reasonable and probable cause is devoid of any merit.
The failure
of a case both in Civil and Criminal proceedings is not
by itself a proof that a party who brought those proceedings acted in
absence
of reasonable and probable cause. To the contrary
authorities show that a person who instigates a prosecution will not
be
liable of the wrong offence.
[10]
The termination of proceedings in plaintiff’s favour is a
requirement on its own, independent of any other, which needs
to be
proved.
[24]
Having found that some requirements have been conceded by the
defendant and others have not been
proved by the plaintiff, a party
on whom the entire onus lie, I find that the concession of other
requirement is not helpful to
plaintiff’s case. The test
of proving requirements is conjunctive and not disjunctive. For
a successful claim
of malicious prosecution plaintiff must prove that
all the requirements are cumulatively in existence. They must
co exits
with each other as they are inextricably linked to or
dependent upon one another for a successful claim of this nature.
Failure
to prove one requirement will lead to a dismissal of
plaintiff’s case. Having found that not all the
requirements of
the claim have been satisfied, I accordingly find
that plaintiff’s claim cannot succeed with costs.
[25]
In the result the following order shall issue.
(a)
Plaintiff’s claim is dismissed with costs.
___________________
A.S
ZONO
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES
For
the plaintiff :
Adv Mhlawuli
Instructed
by :
Mgxaji
Zazaza
Attorneys
MTHATHA
For
the defendant
:
Mr
Mbiko
Instructed
by
: The
National Director of Public
Prosecution
c/o State Attorney
MTHATHA
[1]
The law of South Africa. Vol 15, 2
nd
ad. Part 2 page 195.
[2]
Minister of Justice and Constitutional Development v Moleko 2008(3)
ALL SA 47 (SCA)
[3]
LAWSA (supra) Page 199; Moleko (supra) Page 20.
[4]
Prinsloo and Duette v Newman 1975(1) SA 481(A).
[5]
LAWSA Vol 15 Part2 (supra) Page 201.
[6]
Matshabane v Minister of Police and Another (967/2018;CA99/2018)
[2019] ZAECMHC 63 (4 October 2019)
[7]
Heyns v Venter 2004(3) SA 200(T) at 208 – 209.
[8]
Prinsloo v Newman (supra) at 492; Moaki v Reckitt and Colman
(Africa) Ltd 1968(3) SA 98 (AD) 105.
[9]
LAWSA Vol15 (supra) Page198.
[10]
Sinkwa v Koning Kramer
1994 NPD 321
at 418; LAWSA Vol 15 (supra)
Page 196.