About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 518
|
|
Bambela and Another v National Director of Public Prosecutions (7179/2014) [2018] ZAGPPHC 518 (26 January 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 7179/ 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
JIMMY
BAMBELA
1
st
Plaintiff
JOSEPH
MASINDI
2
nd
Plaintiff
versus
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Defendant
JUDGMENT
MPHAHLELE
J:
[1]
The plaintiffs instituted a claim for damages against the defendant
arising from their alleged malicious prosecution by the
defendant.
[2]
At the commencement of the trial, and by agreement between the
parties, the court made an order separating the merits for liability
and quantum in terms of rule 33 (4) of the uniform rules of court and
the matter proceeded on the issue of liability, and the issue
of
quantum stood over for determination at a later stage.
[3]
To succeed with a claim for malicious prosecution, the plaintiffs
must allege and prove that: a) the defendant set the law in
motion b)
the defendant acted without reasonable and probable cause; c) the
defendant acted with malice or
animus iniuriandi;
and d) he
prosecution has failed.
[4]
The defendant conceded that that it set the law in motion and that
the prosecution had failed. The only remaining issues are
whether the
defendant acted without reasonable and probable cause and with
malice.
[5]
The plaintiffs testified in person and the defendant led the evidence
of the State Prosecutor, Ms. Ouma Mahlodi Serite.
[6]
Joseph Masindi, the second plaintiff testified that on 29 July 2011
he was busy working near the first plaintiff's house when
he
approached by three men driving in a private motor-vehicle looking or
the first plaintiff. Upon enquiry, he informed the three
men that the
first plaintiff was staying with his wife and child. The men never
disclosed the reason they were looking for the
first plaintiff. He
informed them the first plaintiff was not home at that moment. The
men then left and indicated that they would
come back later on. On
their return, the men asked for the first plaintiff and he pointed
him (the first plaintiff) out to them.
The men then went into the
first plaintiff's home and thereafter one of the men (one Mafokane)
called him to the first plaintiff's
home. Upon arrival at the first
plaintiff's home, he was informed that he was under arrest and would
be taken to the police station.
After leaving the first plaintiff's
home whilst in the motor vehicle they were informed that they
were arrested in relation
to a charge of rape. The police informed
them that they were pointed out by the community. They were taken
directly to Musina hospital
to draw blood for DNA analysis.
Thereafter they were taken to the police station whereat they were
charged with housebreaking and
rape.
[7]
They made their first appearance in court on 01 August 2011 nd the
matter was postponed for further investigation. They were
oth refused
bail and were ordered to remain in custody. On their sec nd
appearance in court on 08 August 2011, the matter was once
a ain
postponed to 16 August 2011, there was no mention of bail at his
hearing.
[8]
Under cross-examination, he agreed that the matter postponed on 01
August 2011 for the appointment of a Iegal representative
from the
Legal Aid Board and the bail hearing as postponed to 08 August 2011.
The plaintiffs only managed to consult with a lawyer
after 08 August
2011 and bail was only granted on 16 August 2011 without any formal
bail hearing.
[9]
On 16 August 2011, the plaintiffs were granted bail of R1 000-00 each
and the matter further postponed to 07 September 2011.
One of the
bail conditions was for the plaintiffs not to contact to the state
witnesses. The court requested the prosecutor to
furnish the
plaintiffs with the names of the witnesses, in particular the
complainants, for the plaintiffs to fully comply with
the bail
conditions. They waited in vain for the information but nonetheless
the first plaintiff paid the bail money and was subsequently
released.
[10]
The second plaintiff remained behind in the cells for fear of
contravening the conditions of bail. On 07 September 2011 he
advised
the court about his predicament. Nonetheless he paid the money fix d
for bail. On 07 September 2011, the matter was postponed
to 0 January
2012 and subsequently to 05 March 2012; May 2012; 05 June 2012 and
finally to 03 July 2012. The prosecutor indicated
that he was still
waiting for the DNA results. On 03 July 2012 they were advised that
results of the DNA tests did not implicate
them in the commission of
the offences they were charged with and they were released.
[11]
Jimmy Bambela, the first plaintiff, testified that he was arrested on
29 July 2011 by three policemen at his home. He told
the police that
the second plaintiff was his friend. The second plaintiff was nearby
and he pointed him out to the police who then
arrested him as well.
They were taken to draw blood for DNA tests before being taken to the
police station. He corroborated the
evidence of the second plaintiff
regarding the several court appearances, the postponements and the
reasons thereof. Mr. Moropane,
the Legal Aid attorney's request for
the matter to be withdrawn was denied due to outstanding DNA results.
[12]
The first plaintiff testified that the police claimed that community
members informed them that he had committed the offence
of
housebreaking and rape.
[13]
At their first court appearance the plaintiffs asked for bail but
were advised to seek legal representation. They did not have
a lawyer
at their second court appearance on 08 August 2011. Bail as
eventually granted after the prosecutor consulted with the
investigating officer. No formal bail application was held. And they
had no Iegal representative present in court on the day bail
was
granted.
[14]
Ms. Ouma Mahlodi Serite testified that she was a prosecutor at the
Musina Magistrate's Court. She received the docket in this
matter on
01 August 2011. Upon perusal of the contents of the docket, she was
satisfied that the matter was ready to be heard.
She allocate a case
number and enrolled the matter. She spoke to the investigating
officer before enrolling the matter. She addressed
the court
requesting a postponement to a date less than seven days for a bail
application. On both court appearances on 01 and
08 August 2011, the
plaintiffs never applied for bail. She confirmed that the matter was
postponed several times, including on
05 March 2012, as they were
still waiting for the DNA results.
[15]
On 05 January 2012, she erroneously made an entry in the SAPS
investigative diary to the effect that the DNA results were received
but immediately thereafter indicated that the matter was postponed
due to the outstanding DNA results. Under cross - examination,
she
indicated that she was not the one who made the entry of 05 January
2012.
[16]
Ms. Serite testified that she perused the docket to satisfy herseIf
before enrolling the matter. It is important to note that
no evidence
was led as to the contents of the docket she took into consideration.
The contents of the dockets remain, at the time
of Ms. Serit 's
consideration, remain unknown.
[17]
It appear that there was no other evidence other than the DNA
results. The inscription made in the SAPS investigation diary
as
early as on 08 August 2011 read;
"All the witnesses say they
failed to identify the suspects because they were [wore] masks,
kindly establish how two accused
were arrested and who identified
them".
[18]
The matter was on several occasions postponed due to availability of
the DNA results. However, the inscription in the SAPS
diary dated 05
January 2012 reads:
"RESULT DNA! The results were received
from Musina f.c.f. and the letter attached as per A13".
[19]
Another entry made in the diary on 05 May 2012 reveal that the DNA
results had been received and attached on the case docket
but the
matter was thereafter still postponed to later dates for lack of DNA
results.
[20]
As already alluded to in paragraph 4 above, the defendant conceded
that that it set the law in motion and that the prosecution
had
failed. This concession is sufficient proof that the defendant took a
deliberate act to institute the prosecution or set the
law in motion
without the influence of any external
[21]
It is worth noting that the defendant's plea is a bare denial. Based
on the evidence before this court, it is clear that the
defendant
acted without reasonable and probable cause and with malice when it
initiated the prosecution being fully aware that
none of the
witnesses could identify the plaintiffs as perpetrators of the
robbery and rape The defendant was malicious in persisting
with
numerous utile postponements whilst being aware that DNA evidence
failed to link the plaintiffs to the crimes.
[22]
Under the circumstances, I hereby make the following order:
1. The defendant
is liable to pay 100% of the plaintiff's proven or agreed damages
2. The defendant
to pay the costs.
S
S MPHAHLELE
JUDGE
OF THE HIGH COURT,
PRETORIA
For
the plaintiff: Advocate GH Janse van Vuuren
Instructed
by: Erwee Attorneys
For
the defendant: Advocate T Williams
Instructed
by: The State Attorney