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[2018] ZAGPJHC 554
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Mudlauzi v Minister of Police and Another (29235/2016) [2018] ZAGPJHC 554 (11 October 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 29235/2016
In
the matter between:
MULAUDZI
THOMAS
MASHUDU PLAINTIFF
AND
MINISTER
OF
POLICE FIRST
DEFENDANT
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS SECOND
DEFENDANT
JUDGMENT
TWALA
J
[1]
The plaintiff sued the defendants out of this Court for damages
arising out of his arrest and detention by members of the South
African Police Service on the 21
st
of December 2015. The plaintiff was held in detention as he was
prosecuted until he was released on the 1
st
June 2016 when he was found not guilty and discharged by the trial
court.
[2]
The defendants filed their plea to the plaintiff’s particulars
of claim admitting the arrest and detention of the plaintiff
but
alleging that it was lawful and justified. Only the plaintiff
testified in support of its case and the defendant called three
witnesses to testify in its defence.
[3]
This matter came before this Court for determination of the merits
only, the issue of quantum having been postponed sine die
on the
previous occasion. The defendant closed its case after leading the
second witness. However, before the matter was argued,
the defendant
applied for the re-opening of its case to allow a third witness to
testify whom it was alleged is the arresting officer.
The application
was granted but it turned out the witness was not the arresting
officer and his testimony was withdrawn by the
defence.
[4]
The plaintiff testified that he was employed by Diplomat Warehouse as
a dispatch clerk. On the 21
st
December 2015 he was at work and was called by his senior to her
office where he was arrested by members of the South African Police
Service. His senior told him to tell the truth as the police officers
asked her if this is the man they were looking for. Nobody
explained
to him why he was arrested. He was hand cuffed on his back and
bundled into the police vehicle. They drove to a scene
where he found
his employer’s truck parked with other vehicles. The police
officer started assaulting him by pulling a plastic
bag over his face
and pepper spraying into it suffocating him. The police officer
strangled him and he started bleeding from his
mouth, nose and ears.
The police officer kept on saying he must tell the truth whilst
assaulting him. He told the officer that
he knew nothing. The plastic
bag was pulled over his head on three occasions. The police officer
also used some machine to shock
him by placing it under his armpit
and he ended up wetting his pants. He was later taken to the cells in
Sebenza police station.
The T-shirt he was wearing was full of blood.
There were two police officers who were at the counter at Sebenza
police station
and they allocated him an empty cell as requested by
the officers who arrested him. He was kept in that cell with his
hands still
cuffed on his back.
[5]
Later in the afternoon, he was taken to Edenvale police station where
he spent the night. The next day he was interviewed by
Captain Masha
(Masha) whom he told that he knew nothing about the truck hijack.
Masha proceeded to write something and asked him
to sign it. He never
read it back to him nor told him what was contained in the document.
During the interview with Masha, he was
asked for his name and
address which he gave to him (Masha). He made his first appearance in
Court on the 23
rd
of December 2015 and was remanded in custody until the 5
th
of January 2016. He applied for bail on the 5
th
of January 2016 and bail was successfully opposed by the State –
hence he was kept in custody until his release on the 1
st
of June 2016. He was never taken to the doctor for his injuries.
[6]
During cross examination he testified that he informed his attorney
about his injuries and the attorney assured him that he
will inform
the court. On his first appearance the court could not see his
injuries and his blood - stained clothes because he
was seated at the
back. He relied on his attorney to communicate all his problems to
the court. Masha saw that he was injured
and asked him about it
but did nothing further. He was scared to tell any police officer
about the assault on the first day of
his arrest. He knew nothing
about the truck hijacking and had told Masha about that. He did not
know who removed his belongings
from the room he was renting and
living in. He only requested his friend to take his children to his
aunt but not his belongings.
[7]
Detective Sergeant Dalmain David Morris (Morris) testified that he
has been a member of the South African Police Service for
17 years.
He was the investigation officer in the case of a truck hijack in
which the plaintiff was involved. When he interviewed
the plaintiff
on the 21
st
of December 2015, he indicated to him that he would like to confess
to the crime. He immediately stopped the interview for he is
not
qualified to take a confession from an accused and called Masha to
assist. Masha interviewed the plaintiff and recorded the
confession
which he placed in the docket and was submitted to the prosecutor.
The matter was then enrolled for the 23
rd
of December 2015. Since he was going on leave, he handed the
docket to Sergeant Nkosi to assist with the verification of
the
plaintiff’s address for the purposes of bail.
[8]
Under cross examination he was adamant that the plaintiff gave him a
false address as his residential address which turned out
to be that
of the victim. He warned the plaintiff about his rights in terms of
the Constitution before he said he wanted to confess
to the crime. He
would not deal with somebody who has been injured or assaulted by the
police or public without making an entry
in his occurrence book and
reporting to his commander. He did not see any visible injuries on
the plaintiff on that day and he
did not investigate if he was
injured. The plaintiff did not report to him that he had been
assaulted and injured by his arrestors.
He did not know if the
statement read into the record was a confession. Cellphone records
were in the docket but did not implicate
the plaintiff. He read the
confession taken by Masha from the plaintiff before submitting the
docket to the prosecutor but did
not see the address of the plaintiff
on the confession.
[9]
Sergeant Sizwe Patrick Nkosi (Nkosi) testified that he has been a
police officer in the service of the South African Police
Service for
17 years. His involvement in this case was only with regard to the
bail application which was heard on the 5
th
of January 2016 at the request of Morris who was on leave. He first
familiarised himself with the docket and visited the address
of the
plaintiff as provided in the docket on the 4
th
of January 2016 to verify if it was correct. He was told by Lebogang
who lives at the address, […] M Section, Tembisa, that
the
plaintiff is unknown to her and that it is only the victim who lives
at that address. At the bail hearing on the 5
th
of January 2016, he testified that the plaintiff was not known at the
address he gave to the police, therefore opposed that the
plaintiff
be admitted to bail.
[10]
During cross examination he conceded that he was not aware of the
plaintiff’s address as […] E Section Tembisa
and that he
only verified the address which appeared on the docket as […]
M Section Tembisa. He then testified further that
it was his
colleague who verified the address but not himself. However, he could
not explain why in the court hearing the bail
application he
testified that he verified the address and informed the court that
the plaintiff has given the police a false address.
[11]
It is trite law and in terms of the bill of the rights enshrined in
the Constitution of the Republic of South Africa Act, 108
of 1996
that, everyone has the right to freedom and security of the person,
which includes the right not to be deprived of freedom
arbitrarily or
without just cause.
[12]
Section 40 of the Criminal Procedure Act, Act 51 of 1977 (CPA)
provides as follows:
“
Arrest by
peace officer without warrant:
(1)
A
peace officer may without warrant arrest any person –
(a)
Who
commits or attempts to commit any offence in his presence;
(b)
Whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from lawful
custody;
(c)
……………………
.
[13]
In
Van Wyk and Another v The Minister of Police and Another
(A617/15) 2016 ZAGPPHC 942 (17 November 2016)
(Unreported) the
court stated the following:
“
I consider
it to be good policy that the law should be as there stated. An
arrest constitutes an interference with the liberty of
the individual
concerned, and it therefore seems to be fair and just to require that
the person who arrested or caused the arrest
of another person should
bear the onus of proving that his action was justified in law.”
[14]
In
Minister of Safety and Security and Another v Mhlana
2011 (1)
SACR 63
(WCC)
the court stated the following:
“…………
.
In order for a peace officer to be placed in a position to rely upon
s40 (1) (a) it is not necessary that the crime in fact be
committed
or that the arrestee be later charged and convicted of the suspected
offence.”
[15]
In
Scheepers v Minister of Safety and Security
2015 (1) SACR 284
(ECG)
the court said the following:
“
The test
is an objective one and the question to be answered is in our view
whether the arresting officer had direct personal knowledge
of
sufficient facts at the time of the arrest, on the strength of which
it can be concluded that the arrestee had prima facie committed
an
offence in his presence. Stated differently, did the arresting
officer have knowledge at the time of arrest of the arrestee,
of such
facts which would, in the absence of any further facts or evidence,
constitute proof of the commission of the offence in
question. The
aim is not to determine whether the arrested person is guilty of the
offence on which he was arrested. It accordingly
matters not that the
arrestee was not prosecuted or was acquitted at a subsequent trial on
the basis of evidence other than what
the arresting officer had in
his possession at the time when he executed the arrest. An acquittal
simply means that the prosecution
failed to prove the guilt of the
arrested person beyond a reasonable doubt on the evidence available
to it at that time and placed
before the trial court.
To hold otherwise
is, as a matter of public policy, undesirable. It would mean that
knowledge is ex facto attributed to the arresting
officer, of the
facts he did not have actual knowledge of at the time of effecting
the arrest. It requires the search for a balance
between two equally
important aims of public policy, namely the liberty of the individual
on the one hand, and the maintenance
of law and order on the other.
Arrests under s 40 (1) (a) usually take place in circumstances where
prompt and decisive action
is called for, and which is of necessity
founded on the circumstances of the moment, such as public order
offences. The arresting
officer cannot be expected to determine the
guilt of the arrestee in such circumstances in advance, and to hold
otherwise would
unnecessarily discourage peace officers from
arresting offenders who are in the act of committing an offence. The
arrest of a person
in flagrante delicto without a warrant is a
necessary power to effectively maintain order and combat crime and
should not be unduly
curtailed.”
[16]
I am in agreement with counsel for the plaintiff that the only
version before this Court is that of the plaintiff. However,
it is a
trite principle of our law that for judgment to be given for the
plaintiff, the Court must be satisfied that sufficient
reliance can
be placed on his story for there exist a probability that his version
is true.
[17]
There is no evidence before this Court to gainsay that the plaintiff
was arrested and detained without a warrant of arrest
and no
explanation was given to him for his arrest and detention by the two
police officers. I am unable to agree with counsel
for the
defendants that the plaintiff was arrested in terms of s40 (1) (b)
there being a reasonable suspicion that the plaintiff
has committed
an offence. The arresting officer did not testify in this case and
therefore there is no evidence before this Court
as to what
information did he have which led him to arrest and detain the
plaintiff. I am therefore satisfied with the testimony
of the
plaintiff that he was arrested and detained without a warrant of
arrest. The ineluctable conclusion I come to is that the
arrest and
detention of the plaintiff on the 21
st
of December 2015 was wrongful and unlawful.
[18]
I find myself in disagreement with counsel for the plaintiff that the
plaintiff was assaulted by the arresting officers on
his arrest. The
plaintiff was detained in two police stations on the day of his
arrest. In both police stations it is his testimony
that there were
other police officers present other than those who arrested him.
However, he failed to lay a complaint with any
of these officers
about the assault he sustained in the hands of his arrestors. He
alleges that he was wearing his blood stained
t-shirt when he
made his first court appearance on the 23
rd
December 2015 but never alerted the presiding officer to his plight.
He alleges that he informed his attorney who undertook to
take the
matter up with the magistrate, but he never did.
[19]
The unchallenged testimony of Morris is that he does not deal with a
person who was assaulted either by the public or the police
on his
arrest. He never noticed any visible injuries on the plaintiff when
he interviewed him on the 21
st
December 2015. He did not
notice any swelling on his face nor blood stains on the clothes he
was waearing. The plaintiff did not
make any report to him about
being assaulted by the arresting officer nor did he show him any
injuries he sustained in the assault.
[20]
If one has regard to the principles and criteria set out in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martel et Cie &
others
2003 (1) SA 11
(SCA) para 5,
and
especially the unchallenged evidence of Morris and the record of
events, the probabilities are that indeed there was no assault
inflicted on the plaintiff at the time of his arrest. I am of the
respectful view that the police officers would not have risked
public
vilification and assault the plaintiff in public as he alleges. The
irresistible finding I make therefore is that the alleged
assault did
not happen and therefore the plaintiff’s claim in this regard
falls to be dismissed.
[21]
For the plaintiff to succeed in a case of malicious prosecution,
which is the wrongful and intentional assault on the dignity
of a
person encompassing his good name and privacy, the onus is on him to
prove that:
(a) the defendant
set the law in motion (instigated or instituted the proceedings);
(b) the defendant
acted without reasonable and probable cause;
(c) the defendant
acted with malice (or animo injuriandi); and that
(d) the prosecution
failed.
These
requirements were set out by the Supreme Court of Appeal in
Minister
of Justice and Constitutional Development & others v Moleko
[2008] ZSCA 43;
[2008] 3 All SA 47
(SCA) PARA 8
and
were stated with approval in
Minister
of Safety and Security N.O & another v Schubach (437/13) [2014]
ZSCA 216 (1 December 2014).
[22]
I am in agreement with counsel for the plaintiff that the police
failed to investigate and verify the address of the plaintiff
known
as […] E Section, Tembisa as was contained in the statement
recorded by Masha as a confession of the plaintiff on
22
nd
December 2015. This statement was in the police docket when it was
submitted to the control prosecutor for enrolment of the case
on the
23
rd
December 2015. However, Nkosi testified in the bail hearing on the
5
th
of January 2016 that the plaintiff has furnished the police with a
false address and he has verified it himself. He therefore suggested
that the plaintiff should not be admitted to bail. He changed tune
when he testified before this Court that it was his colleague
who
verified the address.
[23]
It is my respectful view that there was absolutely no reason for the
police to verify only the address known as […]
M Section
Tembisa which appeared on the docket but turned out to be that of the
hijacked driver. The police and Nkosi in particular
never bothered to
look at the statement of the plaintiff which was attached to the
docket to verify his address. He did not even
know that there was
such an address on the plaintiff’s statement. The conduct of
Nkosi under the circumstances was, in my
view, malicious and
deliberately intended on the part of the police to mislead the Court
– hence the plaintiff was not admitted
to bail and was only
released on his discharge on the 1
st
June 2016. I am therefore satisfied that the detention of the
plaintiff from the 21
st
December 2015 up to the 1
st
of June 2016 was wrongful and unlawful.
[24]
I am mindful of the salutary duty of the prosecutor to put all the
facts before the Court. However, the prosecutor relies on
the police
to investigate the matter and report to him. The prosecutor was
placed in possession of the docket which had a statement
in which the
plaintiff confessed to his involvement in the commission of the
crime. Suffice it to say that it is irrelevant whether
the said
statement is a confession or not, the document contained information
upon which the prosecution relied in prosecuting
the plaintiff.
It would be an absurdity for this court to accept only the address of
the plaintiff as appearing on the statement
and disregard the rest of
it as suggested by counsel for the plaintiff.
[25]
Counsel for the plaintiff agreed that about 5 prosecutors handled the
case before it was finalised. I am unable to agree with
counsel that
all 5 prosecutors acted maliciously in pursuing the prosecution of
the plaintiff. There is a duty on the prosecution
to ascertain that
it has a proper case against a person by perusing the docket.
However, the failure of the prosecution to notice
that the said
confession does not comply with the requirements of a confession
cannot be said to be malicious. Further, the fact
that the successful
prosecution of the plaintiff failed on a technicality does not in
itself amount to a malicious prosecution.
I hold the view therefore
that the prosecution of the plaintiff in this case cannot be said to
be malicious and the plaintiff’s
claim in this regard falls to
be dismissed.
[26]
It is disturbing to note the manner in which the State Attorney
conducted this case. The case was set down for 4-5 days before
this
Court. However, from the first day, the defendants were not ready to
proceed with this case since they did not have witnesses.
It was
apparent that counsel for the defendants was not properly briefed on
the matter and kept on asking for indulgencies to consult
his
witnesses some of whom never showed up in Court. Counsel for the
defendants was placed in an unenviable position by his clients.
The
lax attitude with which this case was conducted by the defendants
should not be tolerated. It comes at a cost to other litigants
who
have to wait long periods to get trial allocation and have
their matters finalised when litigants like the defendants
keep
playing for more time than to deal with the issues.
[27]
In terms of the practice manual of this Court, these matters go
through the judicial pre - trial where they are certified ready
for
trial. The defendants did not raise any issues about the readiness of
the matter either in the pre-trial between the parties
nor in the
judicial pre-trial before the Judge. I am persuaded by counsel for
the plaintiff that the defendants should be mulct
with a punitive
costs order for their inept attitude in the handling of this case.
[28]
In the circumstances, I make the following order:
I.
The
arrest and detention of plaintiff from the 21
st
December 2015 up until 1
st
June 2016 was wrongful and unlawful;
II.
The
first defendant is 100% liable to compensate the plaintiff for his
damages for the unlawful arrest and detention;
III.
The
first defendant is liable to pay the costs of the action on the scale
as between attorney and client,
IV.
The
plaintiff’s claim for malicious prosecution against the second
defendant is dismissed with costs.
_________________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 11 - 14 September 2018
Date
of Judgment: 11 October 2018
For
the Plaintiff: ADV. G E KERR-PHILLIPS
ADV.
A NAIDOO
Instructed
by: WITS LAW CLINOC
TEL:
011 717 8562
For
the Defendants: ADV. M M ZONDI
Instructed
by: STATE ATTORNEY
TEL:
011 330 7674