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[2018] ZAKZDHC 17
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Patel v National Director of Public Prosecutions and Others (4347/15) [2018] ZAKZDHC 17; 2018 (2) SACR 420 (KZD) (13 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(KWA-ZULU
NATAL LOCAL DIVISION, DURBAN)
CASE
NO: 4347/15
DATE:
13/06/2018
In the matter between:
THE
HONOURABLE MR JUSTICE CHIMANLAL
NORATAM
PATEL
PLAINTIFF
and
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS FIRST
DEFENDANT
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
KWA-ZULU
NATAL SECOND
DEFENDANT
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT THIRD
DEFENDANT
LINDIWE
NXELE
FOURTH DEFENDANT
SOPHIE
MOIPONE DINA
NOKO
FIFTH DEFENDANT
JUDGMENT
LEDWABA,
DJP:
INTRODUCTION
[1]
The plaintiff, the Honourable Mr Justice Chimantal Noratam
Patel, the former Judge President of the Kwa-Zulu Natal High Court
Division,
instituted an action for malicious prosecution against the
five (5) defendants jointly and severally claiming an amount of R3
000
000.00 (three million rand) being damages in respect of
contumelia,
embarrassment, impairment of his dignity,
reputation and humiliation.
[2]
The five (5) defendants,
viz,
The National
Director of Public Prosecutions (NDPP), first defendant, The Director
of Public Prosecutions Kwa-Zulu Natal (DPP),
second defendant,
Minister of Justice and Constitutional Development (Minister of
Justice), third defendant, Lindiwe Nxele (Nxele),
fourth defendant,
Sophie Moipone and Dina Noko (Advocate Noko), fifth defendant) are
defending the action and are represented by
The Office of the State
Attorney.
SUMMARY
OF THE BACKGROUND EVIDENCE
[3]
The background facts which I regard relevant to the
plaintiff's action, are divided into two sections to avoid
duplication and to
provide continuity in the timeline of events. The
first section consists of the facts pertaining to the day of the
incident and
circumstances that led to the charge laid against the
plaintiff while the second section consists of the steps taken in the
investigation
of the charge by the first and second defendants, the
decision to proceed with prosecution and then finally the decision to
withdraw
the charge.
[4]
During the civil proceedings the plaintiff testified and
called two witnesses, Ms Morar and Ms Marais, to support his claim.
The
defence called three witnesses, Ms Nxele, Advocate Noko and
Advocate Cyril Selepe, the last two being in the employ of the second
defendant.
[4.1]
Facts and circumstances that led to the
charge:
[4.1.1]
On 22 October 2013, when the plaintiff arrived in his office after
dealing with the opposed motion roll in Court, he discovered
there
was no paper available for use in the printer. He enquired from his
Registrar, Ms Devika Roma, known as Morar (hereinafter
referred to as
Ms Morar) why there was no paper in his office printer. Ms Morar
replied that she had requisitioned the required
stationery on 10
October 2013, from the fourth defendant, Ms Nxele, but stated that
Mrs Nxele had not yet informed her whether
the stationary was ready
for collection. Ms Morar stated that she had in the interim been
borrowing stationery from her colleagues.
The plaintiff was concerned
that he had not been informed that there was a shortage of paper and
testified that had he known that
the Court lacked stationery, he
would have made the necessary intervention. He instructed Ms Morar to
enquire about the status
of the outstanding stationery.
[4.1.2]
Ms Morar, after leaving the plaintiff's chambers, tried to phone Mrs
Nxele to follow up on the stationery she requisitioned
but Mrs Nxele
was not available at the time
and she left a message
with
Ms Charmaine Zamile Mkhize (Ms Mkhize), who works in the office of Ms
Nxele.
[4.1.3]
Later that morning Ms Nxele returned her call and informed her that
the stationery had been ready for collection, from the
day after the
requisition was made. Ms Morar testified that during the course of
their telephone conversation, Ms Nxele screamed
at her and asked her
why she had told Ms Mkhize that she, Ms Nxele, was incompetent. Ms
Morar then complained to the plaintiff
about how Ms Nxele spoke to
her on the phone. The plaintiff instructed her to inform Ms Karlien
Marais (Ms Marais), the Court Manager,
to come to his office with Ms
Nxele.
[4.1.4]
The meeting the plaintiff requested then took place in the
plainitff's chambers and present was the plaintiff, Ms Marais,
Ms
Morar and Ms Nxele. There are differing versions of what transpired
there and in particular what the plaintiff is alleged to
have said
and how it was understood by those present.
Ms
Nxele testified that when Ms Marias, Ms Morar and herself entered the
plaintiffs chambers the plaintiff was seated behind his
desk and
before they could sit down the plaintiff suddenly started shouting at
her and said,
"what nonsense
is
this who gave you the
right to shout at my secretary (Ms Morar)?"
She then decided
to first greet the plaintiff who just instructed her to sit down.
[4.1.5]
She further stated that Ms Morar explained to the plaintiff that when
she enquired from Ms Nxele about the stationery, she
responded in a
rude manner. The plaintiff shouted at her again and pointed fingers
at her and said
"nonsense,
trash, rubbish and that she was useless"
without
giving her an opportunity to respond or put forward her version.
Later when she tried to explain what transpired between
Ms Morar and
herself, the plaintiff continued shouting at her and told her that he
is running a busy office. She explained to the
plaintiff that it was
Ms Morar's responsibility to collect the stationery; it was not her
duty to tell Ms Morar that the stationery
is ready and she was not
prepared to do the job of Ms Morar because they were both employed by
the Department of Justice. She further
testified that she believed
that the plaintiff shouted and insulted her because she was a black
woman who was defenceless and he
would have behaved differently if
she was a man.
[4.1.6]
I interpose to mention that in the Trial Bundle
[1]
,
the memorandum of the second defendant, dated 7 January 2014, states
that Ms Marias indicated that the plaintiff spoke in a raised
voice
and did not allow the complainant, Ms Nxele to speak. However, Ms
Nxele in her statement to the police stated that the plaintiff
shouted at her.
[4.1.7]
The plaintiff testified that when Ms Marias and Ms Nxele entered his
chambers, they sat down and he spoke to them about
the
importance of the Court being run efficiently. According to the
plaintiff he told Ms Nxele that it is not acceptable
for her to shout
at his secretary. Ms Nxele stated that she wants to respond and
the plaintiff gave her a chance to respond.
Ms Nxele denied shouting
at Ms Morar and she further said that Ms Morar is not her boss. He
then asked her who is her boss and
she responded by saying it is the
Department of Justice. He angrily raised his hands and said
"do
I have to cope with this rubbish?"
Ms
Nxele retorted and said
"do
you call me rubbish?"
He
denied that when he said rubbish he was referring to her
personally and Ms Marais informed Ms Nxele that the plaintiff
was not
referring to her when he mentioned the word
"rubbish".
[4.1.8]
He enquired of Ms Nxele whether she understood the English language
and directed that her appointment file should be made
available to
him so that he could check it. In assessing the situation in the
meeting held in the plaintiff's chambers it seems
clear that
emotions were running high , in particular on the part of the
plaintiff and Ms Nxele .In addition it is also clear
that the word
'rubbish'
was used by the plaintiff. What is in dispute is the
context within which the word was used. I am also mindful in a
society such
as ours with a diversity of languages there is always
scope for misunderstanding and misinterpreting language.
That
being the case it does appear that the plaintiff was angry and I do
think that his questioning of Ms Nxele's
ability
to speak English was unwarranted in
that it unnecessarily
called into question her
competence and ability to do her work.
[4.1.9]
The plaintiff further testified that he had an open door policy with
staff members to discuss issues negatively affecting
the efficient
operation of the Court. He further stated that on some previous
occasions when he was faced with related issues with
the staff
members, he was frustrated when some of the staff said that they were
not accountable to him, as the Head of the
Court, but to the
Department of Justice.
[4.1.10]
On 24 October 2013, Ms Nxele reported the incident of what happened
in the plaintiff's chambers
to the
Office of The Public
Service
Association and also laid a charge of
crimen injuria
against
the plaintiff on 25 October 2013, at the Durban Central Police
Station.
[4.1.11]
On 25 October 2013, a journalist phoned the plaintiff about the
criminal charge laid against him. The plaintiff informed
the
journalist that he was not aware of any criminal charge against him
and he advised the journalist to contact Ms Marais to obtain
further
details of what actually transpired before publishing anything. An
article was nevertheless published in the Sunday Times
Newspaper on
27 October 2013, under the headline "Case
Against Leading
Judge".
The key issue in dispute and around which
much of this action revolves, is whether the plaintiff referred to Ms
Nxele as being
'rubbish and
useless' or whether he used the
word
'rubbish'
to describe his unhappiness about the state of
affairs that related to the stationery and the dispute that evolved
around it. It
is matter I will return to.
[4.2]
Facts pertaining to the investigation by the second and
third
defendants
the
decision to prosecute and the decision to withdraw the
charge.
[4.2.1]
On 28 October 2013, Ms Mkhize and Mrs Boniwe Lillian Ethel Mdunge (Ms
Mdunge), who also works in Ms Nxele's office, deposed
to statements
to the South African Police concerning the communication exchanged
with Ms Morar on 22 October 2013 and the report
they made to Ms
Nxele. On the 28 October 2013, Ms Nxele lodged a grievance about the
plaintiff's conduct with the Department of
Justice. Ms Marais and Ms
Morar also deposed to statements to the police regarding the events
of the 22 October 2013..
[4.2.2]
On 29 October 2013, the plaintiff addressed a letter to the Chief
Justice of the Republic of South Africa and implored him
to
investigate the matter of the criminal charge against him.
[4.2.3]
On 30 October 2013, Major-General Balaram Naidoo and Brigadier Isaiah
Jabulani Zikhali obtained a warning statement from
the plaintiff.
[4.2.4]
Advocate Noko testified that she received the docket from the police
during November 2013. She perused it and recalled that
it contained
the statements of Ms Nxele, Ms Morar, Ms Marias and the plaintiff.
She gave it to her colleague, Advocate Selepe on
17 October 2014,
almost a year after the alleged incident, to read, comment and to
give his opinion. Advocate Selepe informed her
that he thought there
was a
prima facie
case against the plaintiff.
[4.2.5]
Advocate Noko further testified that she personally interviewed Ms
Nxele, Ms Morar and Ms Marais on 26 November 2013. She
said she
started preparing her memorandum in January 2014 before the matter
was referred to the first defendant. In the memorandum
she summarised
the facts, referred to some decided cases and her conclusion was that
"there are reasonable prospects of success in the case and
had decided to prosecute."
She further testified that
because the plaintiff was a Judge President she sought advice from
the first defendant as to the process
that should be followed before
commencing with the prosecution.
[4.2.6]
It is clear from the contents of the memorandum of Advocate Noko that
in the statements of Ms Marias and Ms Nxele there
are contradictions
that related to how the plaintiff gesticulated with his hands or
allegedly pointed at Ms Nxele when he spoke.
Ms Morar and Ms Marais
both testified that when they were in the plaintiff's chambers the
discussion commenced after
they sat down. Both testified that they
did not hear the plaintiff referring to Ms Nxele as nonsense, trash,
rubbish and useless,
as alleged by Ms Nxele. Importantly, the
contents of their statements to the police do not confirm or
corroborate Ms Nxele's version
on this crucial aspect which as I have
indicated is not only central to these proceedings but would have
been material in any proposed
prosecution of the plaintiff. They also
said plaintiff did not shout and his voice was loud as he normally
talks in a loud voice.
noted during the plaintiff's testimony
that he speaks in a loud voice.
[4.2.7]
In my view, the duty of a prosecutor is to carefully consider all the
versions of the witnesses, statements and determine
whether the
contradictions therein are material or not before a decision to
prosecute is made.
[4.2.8]
Advocate Selepe testified that he received the docket from Advocate
Noko but he said it was in August 2014 and he was of
the view that
there was a
prima facie
case against the plaintiff. He
said he was involved in the case again when he prepared the summons
to be served on the plaintiff.
The summons was issued on 22 October
2014 and was served on the plaintiff on the same day.
[4.2.9]
The plaintiff told the Court that the service of the summons on was
effected on Diwali, which is one of the most auspicious
occasions in the Hindu religion and his view was
that it was intended to humiliate him on this special day because
he
is a member of the Hindu religion. Advocate Selepe however testified
that he did not know that 22 October 2014 was Diwali day.
[4.2.10]
I interpose to state that there is no entry or recording in the
docket or in Advocate Noko's memorandum to the first defendant,
that
she discussed the matter with Advocate Selepe. While I do not
suggest that there was a legal duty on her to record same,
my view is
that in a matter where criminal conduct is imputed against a senior
official it would have been prudent for Advocate
Noko would have
recorded the date and the opinion of Advocate Selepe in the docket. I
have some doubt as to whether Advocate Selepe
was in fact given the
docket to comment on its contents.
[4.2.11]
Advocate Noko testified that she gave Advocate Selepe the docket in
October 2014 but Advocate Selepe said he received the
docket in
August 2014. Considering the chronology, Advocate Noko could not have
given the docket to Advocate Selepe in October
2014, before it went
to the first defendant. The docket was sent to the first defendant in
August 2014 hence the recommendation
was made to Advocate Ramaite SC,
who was instructed by the first defendant to investigate the matter
further.
[4.2.12]
Importantly, Advocate Noko did not comment or note in her memorandum
that she consulted with Ms Morar nor Ms Marais, in
respect of the
contradictions in the three statements, regarding the insulting
statement(s) allegedly made by the plaintiff. It
is clear that the
version recorded in the memorandum of Advocate Noko, after she
consulted with Ms Nxele on 13 November 2013, differs
in certain
respects with the contents of the plaintiff's statement to the
police dated 25 October 2013, regarding at which
stage the alleged
insulting word were uttered after they entered the plaintiff's
chambers.
[4.2.13]
About a year later in October 2014 (the first defendant informed the
second defendant that) after several correspondence,
further
statements taken from witnesses and further reports were compiled,
that Ms Nxele did not accept the suggestion of an informal
mediation
process. The first defendant informed the second defendant that the
plaintiff should be prosecuted on a charge of
crimen injuria
and that it would not be improper if the plaintiff were to be
given the option of paying an admission of guilt fine - this however
was not reflected in the summons.
THE
LEGAL FRAMEWORK AND EVALUATION OF THE EVIDENCE
[5]
The
requirements to prove a claim for malicious prosecution were
discussed
in
Minister of Justice and Constitutional Development v Moleko
[2]
as follows:
"In order to
succeed (on the merits) with
a
claim for malicious
prosecution,
a
claimant must allege and prove
-
(a)
that the defendants set the law in motion (instigated or
instituted the
proceedings);
(b)
that the defendants acted without reasonable and probable
cause;
(c)
that the defendants acted with malice (or animo injuriandi);
and
(d)
that the prosecution has
failed."
The
requirement of "malice" has been the subject of discussion
in a number of cases in this court. The approach now adopted
by this
Court is that, although the expression "malice" is used,
the claimant's remedy in a claim for malicious prosecution
lies under
the injuriarum and that what has to be proved in this regard is
animus injuriandi.
See
Moaki v Reckitt and Colman
(Africa)
Ltd
and Another
[3]
and
Prinsloo
and Another v Newman
[4]
.
By
way of further
elaboration
in
Moleko
[5]
it was said:
"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). Negligence on
the part of the defendant (or,
I
would say, even gross
negligence) will not suffice".
[6]
What
triggered the prosecution of the plaintiff was the act of Ms Nxele
preferring a charge of
crimen
injuria
against
the plaintiff. In her first statement
[6]
to the police dated 25 October 2013, it is recorded that she
said the following:
"..
.As we were
approaching the Judges (sic) table where he was seated the Judge
started shouting at me saying what nonsense is this
who gave you the
right to shout at my secretary. On our arrival to him
I
greeted
him his answer was sit down....
...After Roma
finished, the Judge started shouted (sic) at me insulting me pointing
fingers at me in front of Marais and Roma calling
me all sort of
names, nonsense, trash, rubbish and how useless I am. The Judge never
gave me
a
chance to tell my side of my story. Then I asked him
if he was going to listen to my side of my story.
I
could see
that he was concluded about me he said yes talk. I told
the Judge what happened. After that the Judge
kept on shouting at me
saying that his office is very busy. I told the Judge that I
will not serve his secretary, we are
all employed by the department
of
justice..."
[7]
After the Office of the NDPP received the first memorandum
from Advocate Noko it instructed a team led by Advocate Ramaite SC to
prepare a memorandum on the matter before deciding on whether the
plaintiff should be formally charged. The team investigated the
matter further and recommended as follows:
"[29.1]
It is submitted that the NDPP should first of all liaise with the
Office of the Chief Justice in order to determine whether
this
complaint
against
Mr Patel should not
rather (and more appropriately) be dealt with by means of the
disciplinary processes of the Judicial Conduct
Committee.
[29.2] If the
abovementioned option does not materialize, then it should be
considered to initiate an Informal Mediation process.
[29.3] Failure to
reach an amicable solution during an Informal Mediation process,
a
prosecution should be instituted. It would not be improper
to allow the accused to pay an admission of guilt in these
circumstances."
[8]
The first defendant wrote to the second defendant to inform
her that for the matter to be dealt with through disciplinary process
of the Judicial Conduct Committee and the complainant, Ms Nxele,
should lay a complaint with the Judicial Conduct Committee. The
NDPP
further requested the OPP to ascertain whether Ms Nxele will be
amenable to follow the recommended alternative dispute resolutions
and to explain the benefits thereof.
[9]
An important feature in this matter is what transpired
following the recommendation made by the first defendant regarding
mediation
and the views of Ms Nxele on the issue and how this
impacted on the final decision taken to prosecute the plaintiff .
There appears
to be some uncertainty as to whether Ms Nxele was
opposed to mediation or insisted on the prosecution of the
plaintiff..
[10]
During cross examination Advocate Noko was ambivalent
about the conclusion of the prosecution team appointed
in
November 2014 and sought to distance herself from its conclusion.
Advocate Noko said she was not persuaded by the recommendation
of the
prosecution team and she would have persisted in prosecuting the
plaintiff but for the fact Ms Nxele later asserted that
she did not
consider that her
dignitas
was impaired by the use of
the word
"rubbish"
which she attributed to the
plaintiff.
[11]
It is interesting that when Ms Nxele testified in court she
insisted that the alleged utterance impaired her dignity but she told
the prosecution team that alleged words uttered by plaintiff did not
have an impact on her dignity. Furthermore Advocate Noko insisted
that Ms Nxele wanted the matter to go to Court but Ms Nxele testified
that she wanted to have a face to face discussion with the
plaintiff.
As I indicated that in the meeting held in the plaintiff's chambers
the emotions were high, in my view Advocate Noko
should have
considered this aspect before taking a decision to prosecute. It is
not surprising that there are material contradictions
in the versions
of Ms Nxele.
[12]
It should be noted that Ms Nxele consulted with Advocate Noko
again on 15 September 2014, in Pietermaritzburg. In the affidavit she
signed on 15 September 2014, she states that Advocate Noko explained
to her the contents of the letter dated 7 January 2014, that
she
wrote to the NDPP, her recommendation and the response from the NDPP.
Her response was that she wanted to see justice done
and if it's
true that no one is above the law the plaintiff must deal with the
allegations against
him
in a Court of law.
[7]
[13]
However
in the affidavit
[8]
made by
Brigadier Isiah Jabulani Zikhali on or after 12 November 2014,
it is recorded that:
"On 2014-11-12
the complainant was called to DPP's in Durban for consultation. The
complainant was interviewed in my presence
by advocate Khuzwayo,
advocate Sibeko and Durban SPP. The contents of NDPP's letter were
explained to the complainant by advocate
Sibeko. The response from
the complainant was that she misunderstood advocate Noko when she
consulted her in Pietermaritzburg.
The complainant stated that she
thought she was going to be excluded from the process of mediation
and that the Judge would be
called alone. The complainant elected to
follow the mediation process."
[14]
It should further be noted that on 15 August 2014, the NDPP
addressed a letter to Advocate Noko and advised her about the advice
of the Office of the Chief Justice. In the letter
dated 11 August 2014, addressed to the NDPP, the Office of
the Chief
Justice,
inter alia,
said the following:
"While I find the
proposal that the matter would best be dealt with by the Judicial
Conduct Committee, the challenges I have
is that I cannot initiate
that process. The complainant or someone on her behalf and with her
consent would have to depose too
an affidavit initiating the
lodgement of
a
complaint against Patel, JP.
If the NDPP or someone
attendant, see she is agreeable to it, and follow on his behalf could
bring this option to her attention
and she is agreeable to it and
following through on it the, JGC would then have the jurisdiction to
deal with the matter.
[16]
Advocate Noko testified that on 15 September 2014, when she
consulted with Ms Nxele, she advised her about the recommendation of
Advocate Ramaite SC and that from the Office of the Chief Justice. Ms
Nxele was not amenable to follow the alternative dispute
resolution
and she noted in her memorandum about Ms Nxele the following:
"My
response to this matter is that I want justice being done. If it is
true that there is no one who is above the Jaw,
the Judge must be
brought before the court and answer the allegations."
[17]
It is further important to mention that when Ms Nxele
testified she said she told Advocate Noko that if the
plaintiff
apologised she would not have insisted that
the criminal case should proceed. However, this is not recorded in
her
affidavit of 15 September 2014, or in the affidavit of the
Brigadier Zikali. When Ms Nxele testified she denied that she was
informed
about alternative dispute resolutions which she would have
acceded to. Advocate Noko in her testimony, insisted that Ms Nxele
wanted
the matter to go to Court but Ms Nxele however, testified,
that she told Advocate Noko that she wanted to have a face to face
discussion
with the plaintiff.
[18]
On 15 September 2014, Advocate Noko addressed a memorandum to
the NDPP wherein she informed him that the complainant was not
amenable
to following an alternative dispute resolution mechanism and
therefore declined the advice. She then requested the NDPP for his
advice on the way forward.
[19]
On
23 September 2014, the NDPP addressed a letter
[9]
to the Office of The Chief Justice and informed the Chief Justice
that the complainant was not willing to participate in the
disciplinary
process of the Judiciary Conduct Committee. As a result
thereof, he directed that the plaintiff must be prosecuted on a
charge
of
crimem
injuria
and
that it would not be improper to allow the plaintiff to pay an
admission of guilt fine.
[20]
On even date, another letter was addressed to Advocate Noko by
the NDPP wherein he stated that:
"I have decided
that Mr Patel must be prosecuted on
a
charge of
crimen
injuria.
I have also decided that it would not
be
improper to allow the accused to pay an admission of guilt fine."
[21]
To
determine whether there was malice or not, it will be worth recalling
what the Supreme Court of Appeal said when it dealt with
the duty of
the prosecutor in
Minister
of Police and Another v Du Plessis
[10]
"... A
prosecutor
has a duty not to act arbitrarily. A prosecutor must act with
objectivity and must protect the public interest. In S
v Jija and
Others
1991 (2) SA 52
(E) at 671-688 the following appears:
"/
must also mention that the Court had an uneasy feeling that State
counsel had misconceived his function. It appeared to the Court
from
the nature of his address and attitude that he regarded his role as
that of an advocate representing a client. A prosecutor,
however,
stands in a special relation to the Court. His paramount duty is not
to procure a conviction but to assist the Court in
ascertaining the
truth (R v Riekert
1954 (4) SA 254
(SWA) at 2610-G; R v Berens
[1865] EngR 42
;
[1985]
176 ER 815
at 822). See
also R v White
1962 (4)
SA 153
(FC); R v Tapera
1964 (3) SA 771
(SRA); S v
Van Rensburg
1963 (2) SA 343
(N); R v M
1959 (1) SA 434
(A) at 439F."
[22]
In
Democratic
Alliance v President of the Republic of South Africa and Others
[11]
this Court, after a discussion concerning prosecutorial independence
in democratic societies, quoted, with approval, the following
part of
a paper presented at an international seminar by Mr James
Hamilton, then substitute member of Venice Commission
and Director of
Public Prosecution in Ireland:
"Despite the
variety of arrangements in prosecutor's office, the public prosecutor
plays
a
vital role in ensuring due process and the rule of law
as well as respect for the rights of all the parties involved in the
criminal justice system. The prosecutor's duties are owed
primarily to the public as
a
whole but also to those
individuals caught up in the system, whether as suspects or accused
persons, witnesses or victims of crime.
Public confidence in the
prosecutor ultimately depends on confidence that the rule of law is
obeyed."
We
should all be concerned about the maintenance and promotion of the
Rule of Law. Given increasing litigation involving the NDPP,
these
principles cannot be repeated often enough. We ignore them at our
peril.
[23]
A
prosecutor exercises discretion on the basis of the information
before him or her. In
S
v Lubaxa
[12]
this Court said the following:
"Clearly
a
person ought not to be prosecuted in the absence of
a
minimum
of evidence upon which he might be convicted, merely in the
expectation that at some stage he might incriminate himself.
That is
recognised by the common law principle that there should be
"reasonable and probable" cause to believe that the
accused
is guilty
of an offence before
a
prosecution is
initiated and the constitutional protection afforded to dignity and
personal freedom (s 10 ands 12) seems to reinforce
it. It ought to
follow that if
a
prosecution is not to be commenced without
that minimum of evidence, so too should it cease when the evidence
finally falls below
that threshold."
[24]
Courts are not overly eager to limit or interfere with the
legitimate exercise of the prosecutorial authority. However, a
prosecuting
authority's discretion to prosecute is not immune
from the scrutiny of a Court which can
intervene
where
such
discretion
is
improperly
exercised.
See
generally
National
Director of
Public
Prosecutions v
Zuma
[13]
•
The following was held in
Minister
of
Police
and Another v Du Plessis
[14]
:
"Indeed
a
court should be obliged to and therefore ought to intervene if
there is no reasonable and probable cause to believe that the accused
is guilty of an offence before
a
prosecution is initiated."
[25]
The second defendant should have been satisfied that there was
reasonable and probable cause not just a
prima facie
case
against plaintiff. The prosecutor should interrogate the docket in
its entirety and apply his/her mind properly before taking
a
decision. Again, if I accept the version of Ms Nxele, it implies that
Advocate Noko was not a credible witness and she fabricated
the
evidence. The defence failed to call the officer who
commissioned Ms Nxele's statement, so that he could testify if the
complainant understood the content of her statement and confirm the
truthfulness thereof.
[26]
Crucially, in my view, when the plaintiff was summoned he was
not informed about an opportunity to pay a fine as recommended by the
first defendant. Advocate Noko could not give a satisfactory answer
as to why the directive by the first defendant that the plaintiff
be
given the opportunity to pay an admission of guilt fine was not
implemented.
[27]
A prosecutor should assess whether there is sufficient and
admissible evidence to provide a reasonable prospect of a successful
prosecutor, otherwise the prosecution should not commence. According
to the DPP's Prosecution Policy Code of Conduct, Guidelines
and
Directing under the heading: When the role of the prosecutor is
described, it is stated that:
"Prosecutors must
at all times act in the interest of the community.......
Members of the
Prosecution Authority must act importantly and in good faith. They
should now allow their judgment to be influenced
by factors such as
their personal views regarding the nature of the offence or the race,
ethnic or nature of the offence or the
race ethnic or national
origin, sex, religious beliefs, political views or sexual orientation
of the victim, witness or the offender''
When
regard is had to the evidence that was before the first and second
defendants before the decision to prosecute was taken there
must have
been considerable doubt with regard to the version and understanding
of Ms Nxele with regard to what was said. Ms Nxele
would have been a
single witness and in this regard the first and second defendants
would also have had to be satisfied that her
evidence would have
passed the threshold of being satisfactory in all material respects.
For the reasons already given there would
clearly been doubt about
that which in turn would seriously question whether it could be said
that there was reasonable and probable
cause to prosecute at the time
the decision was taken.
[28]
After summons was served on the plaintiff, a prosecuting team
comprising of Advocate E Khuzwayo, GP Sibeko and Maimane, was
appointed
by Advocate Noko. The team consulted extensively with the
complainant and the witnesses, formed a view and addressed a
memorandum
to Advocate Noko, wherein they recommended as follows:
"We are thus
recommended that an informal mediation be done in this matter and the
prosecution not be continued with against
the accused. Should the
state continue to pursue with the prosecution of this matter, we
would be prosecuting maliciously especially
since we have considered
all the merits and the merits of the matter and we are aware that
there no reasonable prospects of success.
It is our beliefs that were
opening a door to a civil claim being levelled against us especially
since we are now aware of the
material contradictions. See
Minister of Justice and Constitutional Development v Moleo
[2008] 3 ALL SA 47
(SCA)
and
Minister of Police and Another v
Du Plessis
2014
(1) SA 217
(SCA).
We are not persecutors but we are Prosecutors who should
strive at all times to prosecute without, fear or prejudice which
our
vision guides us to do. We are not only guided by the Vision and
Mission statement in the decision
making process as well as
"integrity.
Having noted the contradictions and despite this proceeding with a
prosecution in the matter impedes on our integrity.
It is also recommended
that the DPP consult with the NDPP on the issues raised."
[29]
The prosecuting team had a meeting with Advocate Noko and
informed her that Ms Nxele no longer regarded the alleged words
uttered
by plaintiff as having an impact on her dignity and that she
wanted mediation to be held. The matter against the plaintiff was
formally withdrawn on 11 December 2014, when plaintiff appeared in
Court.
[30]
As pointed above Ms Nxele's version in the written statements
she made and her version when she testified in Court is full of
material
contradictions and inconsistences. Her version
further contradicts the version of Advocate
Noko on certain material aspects. Argumentative. Under
cross examination she
was
evasive and
[31]
I need to further consider whether on the facts of this matter
it can be said that the first defendant mainly relied on the
memorandum
of the second defendant in arriving at her decision to
sanction the decision of the second defendant. In my view, the first
defendant
should have carefully considered the statements in the
docket before he sanctioned the decision of the second defendant to
prosecute
the plaintiff. The first defendant did not testify to
explain how they arrived at a decision to sanction prosecution.
[32]
There is no doubt that Advocate Noko was acting within the
course and scope of her duties with the second defendant. I do not
think
that she should be personally liable. There is no evidence
implicating the third defendant, the Minister of Justice and
Constitutional
Development.
[33]
The second defendant did not inform the plaintiff about an
alternative to pay a fine and she further testified that mediation,
as
directed by the first defendant and recommended by the prosecution
team, has not been pursued. Advocate Noko was not a good witnesses
and she did not, in my view, execute the duties reasonable expected
from a Director of Public Prosecution. She gave long-winded
and
argumentative answers when she testified.
[34]
A
s the
prosecution team correctly found, in my view, there was no reasonable
prospect of a successful prosecution. The plaintiff
and his witnesses
were credible witnesses and their evidence is acceptable. I think the
plaintiff also proved on the balance of
probabilities that the first,
second and fourth defendants acted with
animo injuriandi.
QUANTUM
[35]
The assessment of an award for damages is not an easy task.
The Court needs to carefully consider the facts and circumstances of
the case before it, the aggravating and mitigating conduct of the
defendants, the position of the plaintiff and the decided cases
for
guidance.
[36]
The plaintiff was the Judge President of the KwaZulu-Natal
High Court and was a few years from retiring with an unblemished
record
of service to the judiciary and the legal profession. His
evidence on these aspects has not been challenged.
[37]
The incident was widely publicised in the media and he had to
appear in Court on two occasions as an accused. After the
charge
was laid it took about thirteen
(13)
months before the charge was withdrawn. During this time the prospect
of being prosecuted would have been hanging over his
head.
[38]
No meaningful attempts were made to pursue alternative dispute
resolution methods like mediation by the second defendant before she
referred the matter to the first defendant. When the plaintiff was
summoned to appear in the Criminal Court he was not given an
option
to pay an admission of guilt as it was recommended by the first
defendant.
[39]
The Plaintiff testified that the preferring of a charge of
crimen injuria
and the decision that he should be
prosecuted impaired his dignity, reputation and embarrassed him. As a
Judge his duty is to dispense
justice but he was required to appear
in a Criminal Court as an accused after the second defendant and the
first defendant decided
to prosecute him. The matter was highly
publicised in the newspapers.
[40]
I need to however, point out that the service of the summons
on the plaintiff on Diwali day was not malicious and not intended to
embarrass him as a member of the Hindu religion.
[41]
I also need to state that before the first decision to
prosecute was made by Advocate Noko, she could have involved a team
of senior
state advocates to assist her with the investigation of the
matter. Advocate Noko sanctioned a further investigation by the
prosecution
team about a year after the charge was laid against the
plaintiff.
[42]
In the assessment of damages I will also take into
consideration that it is still the second defendant that decided to
establish
a prosecution team ad withdraw the charges before the trial
could commence.
[43]
The defendant's counsel submitted that the appropriate damages
to be awarded is an amount or R150 000.00 (one hundred and fifty
thousand rand) to R200 000.00 (two hundred thousand rand). I
disagree. The defendants were aware that the case involves a
senior
Judge. That is the reason why two sets of senior state
prosecutors were later involved to seek their views in assisting
the
first and second defendants. The failure by Advocate Noko to pursue
mediation is, in my view, an indication that she
was intent on
seeing the matter being heard in a Criminal Court. According to
Advocate Noko mediation was not an important way
to resolve this
matter because even when the civil trial was heard about three years
after the prosecution team recommend it, it
had not yet taken place.
[44]
Having regard to the circumstances of this case and having
considered previous awards that I was referred
to during the argument I think the amount of R900
000.00 (nine hundred thousand rand) is fair and reasonable
damages
suffered by the plaintiff.
[45]
The plaintiff's counsel sought a punitive cost order against
the defendants. In exercising my judicial discretion, I am not
satisfied
that a punitive cost order would be appropriate. Each
party were represented by two counsel and costs of two counsel is
justified.
I
make the following order against the first, second and fourth
defendants jointly and severally:
1.
Payment of the sum of R900 000.00 (nine hundred thousand rand
only);
2.
Interest at the rate of 10% per annum with effect from the
date of judgment to date of payment;
3.
Costs of suit on a party and party scale and the costs shall
include costs of two senior counsel.
_________________
A
P LEDWABA, AJ
APPEARANCES:
FOR
PLAINTIFF: ADV. V I GAJOO SC and ADV R J SALMON SC
INSTRUCTED
BY: NORTON ROSE FULBRIGHT ATIORNEYS, DURBAN
FOR
DEFENDANTS: ADV M KHOZA SC and ADV. D MTSWENI
INSTRUCTED
BY:THE STATE ATTORNEY
DATE
OF HEARING:
5 - 9 DECEMBER 2016
3 - 7 APRIL 2017
DATE
OF JUDGMENT:
13
JUNE
2018
[1]
See Trial Bundle page 20.
[2]
[20081
3 All SA 47
(SCA) par 8
.
[3]
1968
(3) SA 98
(A) at 103-104
.
[4]
1975
(1) SA 481
(A) at 492 A B
.
[5]
At
par 64.
[6]
See Trial Bundle page 8A
[7]
See
page 70 of the Trial Bundle
.
[8]
See
page 70 of the Trial Bundle
.
[9]
Letter
from NDPP addressed to Office of the Chief Justice dated 23
September 2014
.
[10]
2014
(1) SACR 217
(SCA) at par 28
.
[11]
2012
(1) SA 417
(SCA) at par 82
.
[12]
2001
(2)
SACR
703
(SCA) at par
19
.
[13]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
.
[14]
Supra
at
par 31
.