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[2018] ZAECMHC 32
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Qwaba v Minister of Safety and Security (CA&R58/2017) [2018] ZAECMHC 32 (12 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. CA&R58/2017
In
the matter between:
MCEBISI
QWABA
Appellant
and
MINISTER
OF SAFETY AND
SECURITY
Respondent
JUDGMENT
MBENENGE
JP:
Introduction
[1]
This appeal, serving before this Court with the leave of the Supreme
Court of Appeal after the court
a
quo
[1]
had dismissed the appellant’s action and the resulting
application for leave to appeal, concerns a claim for damages
allegedly
suffered consequent upon an unlawful arrest, detention and
malicious prosecution of the appellant and other 5 local men whose
details
are of no relevance for purposes of this judgment.
[2]
In a nutshell, the appellant and the 5 local men were arrested by
members of the South African Police Service (the Service),
one of
whom was Constable Maqangwana, acting in the course and scope of
their authority as members of the Service, who suspected
them/the
arrestees of having assaulted, with intent to do one Situtwana
Ntanjana (Situtwana) grievous bodily harm, on 25 December
2015.
Those arrested were thereupon detained at Libode Police Station and
appeared in court after the police had opened a
police docket setting
in motion the process of their being prosecuted on a charge of
assault with intent to do grievous bodily
harm. In the course
of time, however, the charges were withdrawn.
The
pleadings
[3]
Aggrieved by the conduct of the police allegedly meted out to him,
the appellant launched two separate actions before the Court
a
quo
citing the Minister of Safety and Security in a nominal capacity as
defendant. The one action was launched on 13 September
2010
with the appellant averring that the arrest and detention had been
wrongful and unlawful,
inter
alia,
in that it had been “
without
reasonable suspicion and justifiable cause
”.
In the same action there was also a quest for the recovery of damages
for assault.
[2]
The
respondent defended this action denying the assault and seeking to
justify the arrest by contending that the appellant
had been
“
arrested
and detained … in terms of section 40 of the Criminal
Procedure Act, 1977 (Act 51 of 1977
).”
[4]
The appellant also launched a further action during December 2010
seeking damages for malicious prosecution.
[3]
He couched the claim as follows:
“…
the
members of the South African Police Services (
sic
)
whose names are unknown to the [plaintiff] wrongfully and maliciously
set the law in motion against the [plaintiff] on false criminal
charges of assault with intent
to
do bodily injuries
(
sic
).”
(The emphasis is my mine.)
[5]
He further alleged that:
“
In pursuit of
the assault charges aforesaid members of the South African Police
Services (sic):
5.1 opened a
police docket under case 200/12/2009;
5.2 placed a
docket before a member of the prosecuting authority in
Libode for a decision on whether
or not to prosecute the plaintiff;
5.3 [caused]
the plaintiff to [appear] before Libode Magistrate’s Court on
several occasions up until the said criminal
charges were withdrawn
on 19 October 2010.”
[6]
The respondent denied the allegations and pleaded, in amplification,
that:
“
2.1.1 The
defendant avers that on or about 24
th
December 2009, the late Situtwana Ntanjana … laid a charge of
assault with intent to do grievous bodily harm against his
assailants
one of whom happened to be the plaintiff.
2.1.2 The plaintiff
and other local boys (assailants) were apprehended by local men,
taken to the homestead of the deceased and
tied with a rope.
2.1.3 Members of the
defendant were called to the said homestead and the said suspects
including the plaintiff were duly arrested,
detained and subsequently
appeared before the Magistrate at Libode on charges of assault.
2.1.4 The defendant
contends that the prosecution aforesaid was with reasonable and
probable cause in the circumstances.
2.1.5 Save as
aforesaid, each and every allegation contained herein is denied as if
so herein traversed and the plaintiff put to
the proof thereof.”
[7]
By order of court granted on 24 November 2011, the two actions
referred to above were consolidated and thenceforth proceeded
as one
action under case no. 2075/2010.
Pre-trial
proceedings
[8]
The consolidated action became the subject of the usual pre-trial
proceedings. At a pre-trial conference held on 30 March
2015
the parties agreed that at trial stage the court would be called upon
to determine the following issues:
“
1 The
lawfulness or otherwise of the plaintiff’s arrest on 25
December 2009 and his subsequent detention.
2 Whether or not the
arrest and detention had the consequence contended for in paragraph 6
of the plaintiff’s particulars
of claims.
3 Whether in
consequences of his arrest and detention the plaintiff suffered
damages as specified in paragraph 8 of the plaintiff
particulars of
claim.
4 Whether the claim
for assault was properly instituted against the defendant.
5 Whether
plaintiff’s sustained past and future and medical expenses.
6 Whether by reasons
of the alleged conduct of the defendant, plaintiff suffered damages
as stipulated 13.1 to 13.2 of the plaintiff’s
particulars of
claim.
7 The defendant’s
liability to compensate plaintiff for damages in the amount claimed
or some other amount.
8 Whether there was
any malice on the part of the police official when the plaintiff was
prosecuted.”
[9]
The parties further agreed to separate the issues of liability and
quantum
. They further recorded, in the relevant minutes
of the conference, that there would be no dispute regarding the duty
to begin
and the onus of proof in relation to the issues adumbrated
above. The respondent conceded that it bore the duty to adduce
evidence first and the onus to justify the arrest and resulting
detention, whilst the appellant conceded bearing the onus of proof
and the duty to adduce evidence first in relation to the assault and
malicious prosecution claims.
[10]
It also came to pass that the matter became the subject of judicial
case flow management which, at the opportune stage, yielded
an order,
issued pursuant to the parties’ agreement, setting out the
issues for determination as being the following:
“
1.1 That the
court will be called upon to determine whether the plaintiff’s
arrest and detention on 25 December 2009 were
justified in terms of
the law.
1.2 The court will
be called upon further to determine whether the plaintiff was
assaulted or not by the members of the South African
Police Services
or assaulted in the presence of the members of South African Police
Services.
1.3 Whether the
claim for assault was properly instituted against the defendant.
1.4 That court will
be called upon to determine whether the prosecution of the plaintiff
by members of the South African Police
Services (
sic
) was
malicious or not.”
The
trial before the court a quo
[11]
Even though it was, in terms of rule 39(13) of the Uniform Rules of
Court,
[4]
incumbent on the
appellant to adduce evidence first, the matter proceeded on the basis
that, because “
the
[respondent] admits the arrest and detention of the [appellant] on
the 25
th
of December 2009
”,
it stood to reason that “
the
[respondent bore] the duty to begin to justify the lawfulness of the
arrest
.”
[5]
Nothing, during the respondent’s opening address, was said
about the assault and malicious prosecution claims.
[12]
Apart from the testimony of Vuyani Ntanjana, the brother of the
victim, whose testimony is immaterial for present purposes,
Constable
Maqangwana, the arresting officer, was called to testify in
justification of the arrest and resulting detention of the
appellant.
[13]
Constable Maqangwana had been on duty at Libode Police Station on 25
December 2009. She and Constable Geswint were part
of “
a
van crew
”, attending to and receiving complaints.
They received a report from Warrant Officer Bambeni that a certain
adult male
had been stabbed by certain young men at Moyeni location.
They drove to Moyeni location and, upon arrival there, saw, next to a
livestock kraal, about six young men lying on their backs, tied with
ropes around their legs and wrists. The appellant was
one of
these young men.
[14]
After they had introduced themselves as members of the Service,
Vuyani Ntanjana reported that the six young men had attacked
them the
previous night. In the course of that they had stabbed
Situtwana. The ropes on the alleged culprits were thereupon
loosened at the instance of the police.
[15]
Constable Maqangwana and Vuyani Ntanjana entered the house leaving
Constable Geswint guarding the alleged culprits lying by
the kraal.
Inside the house, Situtwana reported that they had been on their way
to their home when the six young men attacked
and assaulted them.
He (the constable) saw that Situtwana had sustained a wound above his
eye. Situtwana stated that
one of the assailants had
remonstrated with the others stating that they should stop the
assault because the victim was somebody
else’s father. He
(Situtwana) also said he identified that voice as having been that of
one of the assailants.
The assailants he mentioned were
“
Codesa
”, “
Kuhle
” and “
a
young man from the Qwaba family
”. As they were
leaving the house, a young man who appeared aged between 15 and 16
years old brought a knife, stating
that Situtwana had been stabbed
therewith and that it had been retrieved from the Qwaba residence.
The police took possession
of the knife.
[16]
Constable Maqangwana informed the alleged culprits that Situtwana was
accusing them of having attacked and stabbed him the
previous night.
Because none of the alleged culprits responded to the accusation, she
arrested them. She thereupon
explained their rights to them.
She observed that the suspects’ wrists were swollen, and they
walked with a limp.
The suspects were conveyed to the police
station and detained after their details had been entered in various
police registers.
On the following day they were charged by
Warrant Officer Dlakavu. They thereupon appeared in court and
were released on
bail.
[17]
Under cross-examination Constable Maqangwana said she did not depose
to a statement concerning what had been narrated to her
as she lacked
stationery. After the docket had been submitted to the
prosecutor she was, according to her, no longer able
to depose to any
statement. She also confirmed that she arrested the plaintiff
and his companions on the strength of what
she saw and what she had
been told. She had observed that Situtwana had been stabbed
above his eye and bore a wound that
was “
plus / minus three
centimetres
”. The arrest, she said, had also been
made on the strength of Situtwana’s statement. She had
taken the
decision to effect the arrest “
because there was a
reasonable suspicion that an offence had been committed, because
these people had been mentioned by Situtwana
as his assailants and
Situtwana also had suffered an injury
…”
[18]
The sworn statement of Situtwana was handed in during Constable
Maqangwana’s cross-examination. Insofar as is relevant
hereto, the statement reads:
“
On Thursday
the 24
th
day of December 2009 at about 22h00 I was on the way together with my
brother, we met a group of a/males these adult males were
7 (seven)
when we met them they talk but I did’nt heard what they said,
they divide into two group the others assaulting
my brother and the
others come straight to me I ask them what are they doing on adult
male drew a knife silver and black and stab
me in the face near the
eye of the right hand side. After he stab me they ran away.
Kuhle Makhosonke one of the gang
identify my brother and told his
friends that is the father of Vuyo and they stop what done to us.
On 2009-12-25 when I
wake up I sent my child to call Makhosonke, when Makhosonke arrived I
asked them what they done to us and he
explain the name of adult
males they were going together and stab me during the night. I
sent someone to call the parents
together with their child, they came
immediately, they point the one who stab me is Luxolo Bangani.
Me and brother told them
to bring the knife that they used to stab
me. The knife arrive in the presence of the police officials.
I want to lay
a charge against Luxolo Bangani, Makhosonke Kuhle,
Bangani Gwedeza, Mcebisi Qwaba, Mabhudi Magaqana and Masibulele Zondi
and Nyenyani
Masiwakhe (Guava) Guava ran away and he will be
arrested.” Sic.
[19]
Constable Maqangwana was asked why she had arrested all the alleged
culprits if only Luxolo had been implicated as having been
the one
who had stabbed Situtwana. She said she arrested all of them
because they all participated in the attack; a knife
had been
recovered and Situtwana had been injured. She sought to conduct
further investigations so as to establish who had
actually stabbed
Situtwana.
[20]
Asked why the arrest had been without a warrant she said:
“…
in
terms of section 40(1) a person can be arrested if that person had
committed an offence even without a warrant… because
assault
GBH had been committed and injuries were inflicted and … an
offence had been committed because the victim sustained
injuries…
which is a serious offence in terms of Schedule 1.”
[21]
The following excerpt from the transcript reveals what eventuated
when questions were posed to elicit, from Constable Maqangwana,
what
eventually became of the assault GBH case:
“
Mr Gagela
:
Eventually what became of the case?
Court
:
Does it matter?
Mr Gagela
:
Sorry, M’Lady?
Court
:
Does it matter, does it have any impact on the …
(intervention).
Mr Gagela
:
There is a claim of malicious prosecution here.
Court
:
There is a claim of malicious prosecution? I was
under
the impression that the defence – the defendant
here
is the Minister of Safety and Security …
(intervention).
Mr Gagela
:
As the Court pleases.
Court
:
And if you pursue a claim of malicious prosecution
you
definitely cannot pursue it against that Minister.
Somebody
else must come and … (intervention).
Mr Gagela
:
As the – in other words, it’s a misjoinder. As the
Court pleases, M’Lady.
Court
:
Yes, I see on the papers it’s only the Minister of
Safety and Security.
Mr Gagela
:
That’s correct, M’Lady. That is correct.
Court
:
I don’t know what would happen to that claim of
malicious prosecution if it is
pursued.
Mr Gagela
:
As the Court pleases, M’Lady.
Court
:
I’m not saying I’m dealing away with it now, but I
don’t know if the Minister
of Safety and Security
would
be able to decide on whether to prosecute or
not,
whether that decision lies with him.
Mr Gagela
:
With the police?
Court
:
With the Minister of Safety and Security.
Mr Gagela
:
Yes, as the Court pleases, M’Lady.”
[22]
Elsewhere, the transcript reads:
“
Mr Nabela
:
So plaintiff will tell this honourable Court that
the
proceedings … (intervention).
Court
:
Mr Gagela is up, Mr Nabela.
Mr Gagela
:
M’Lady, I’m having a problem with this question
in
the sense that when I read the pleadings there’s
no
citation of the National Prosecution Authority.
An
institute which prosecutes … (intervention).
Court
:
Whatever it is worth, Mr Gagela, I was also under
that
impression that there’s no citation of the NPA
and
we also looking at the papers the claims are
two
here it’s unlawful arrest and unlawful
detention.
Mr Gagela
:
As the Court pleases.
Court
:
Claim A and B.
Mr Gagela
:
As the Court pleases.
Court
:
And as to whether the proceedings what
continued
or not what happened at the time of
their
arrest and then what happened after the
time
of – the crucial time of the arrest.
Mr Gagela
:
As the Court pleases, M’Lady.
Court
:
Cannot be material to what happened at the time
of
the arrest”.
[23]
Towards the conclusion of the trial, the following ensued:
“
Mr Nabela
:
M’Lady, we have had discussions with my
colleague.
Court
:
Yes?
Mr Nabela
:
That the issue of assault we will abandon it
and
we will be left with only the arrest,
detention
and the malicious prosecution.
Court
:
Malicious prosecution is it part of the
summons?
Mr Nabela
:
It is, M’Lady. There is a case, M’Lady, case
…
(intervention).
Court
:
Let me see. Let me see there are two claims
as
far as I’m concerned here. Claim A that is
now
unlawful arrest. Claim B detention. And
it
doesn’t go further than that.
Mr Nabela
:
I understand why we are confusing, M’Lady.
M’Lady,
there is Case No 2609/10 which was
then
consolidated to Case No 2075/10. The
bundle
– the defendant’s bundle of documents.
Court
:
Right?
Mr Nabela
:
At page 8 of it there’s a … (intervention).
Court
:
I seemed to have missed that one. Yes?
Mr Nabela
:
Yes, M’Lady. So I think … (intervention).
Court
:
I seemed to have missed that one. Yes?
Mr Nabela
:
Yes, M’Lady. So I think … (intervention).
Court
:
So you are abandoning assault?
Mr Nabela
:
Only the assault, M’Lady.”
Order
of the Court a quo and reasons therefor
[24]
The parties addressed the Court
a quo
on 08 June 2016, and an
order dismissing the action with costs with reasons to follow, if or
when requested, was granted on 09
June 2016.
[25]
In its reasons for the order the Court
a quo
pronounced that
“
[t]he only issue for determination was the lawfulness or
otherwise of the plaintiff’s arrest
.” It went
on to state that “
[a]lthough the issue of malicious
prosecution was argued during trial, it was not part of the
plaintiff’s claim
.”
[26]
The reasoning of the Court
a quo
in relation to the
appellant’s arrest and detention reads:
“
Relevant for
the purposes of this judgment is that assault where serious injury is
sustained forms part of the offence listed under
Schedule 1.
The arrest without a warrant would be lawful, if at the time of the
arrest, the arresting officer had a reasonable
belief that the
Plaintiff had committed a schedule 1 offence. The Defendant had
to show not only that the arresting officer
suspected that Plaintiff
of having committed an offence, but that he must have reasonably
suspected Plaintiff of having committed
a schedule one offence.
It was evident from constable
Maqangwana
’
s
evidence that having obtained the aforesaid statements wherein the
plaintiff was implicated in the assault on Situtwana Ntanjana
who
sustained a serious injury therefrom, she then decided to arrest the
plaintiff. Clearly the police were then entitled
to arrest the
plaintiff in terms of
section 40(1)(b)
of the
Criminal Procedure Act
No. 51 of 1977
. For this reason the plaintiff’s claim
must be dismissed.
In
the result I find that the arrest and subsequent detention of
plaintiff were lawful.”
The
appeal
[27]
At the heart of this appeal is the question whether Constable
Maqangwana was entitled without a warrant to arrest the appellant
who
was suspected of having committed assault GBH. A further issue
falling to be determined is whether the court
a quo
was
correct in not pronouncing on the malicious prosecution claim and
finding that the claim was not before it for determination.
These issues are dealt with
seriatim
.
Was
the arrest justified?
[28]
It was argued, on behalf of the appellant, that assault GBH was not
one of the offences contemplated in
section 40(1)(b)
of the
Criminal
Procedure Act 51 of 1977
and in respect of which it is permissible to
arrest a suspect without a warrant. On behalf of the respondent
it was argued
that on the facts of this case there were sufficient
bases for concluding that the appellant had committed an assault in
which
an injury had been inflicted, within the meaning and
contemplation of
section 40
(1)(b). In support of this
contention mention was made of the fact that the wound had been
inflicted above the victim’s
eye; it was a deep wound that bled
profusely and necessitated medical intervention and suturing; and the
degree of force with which
it had been inflicted suggested that the
intention had been to cause the victim “
a serious wound and
/ or grievous bodily harm
”.
[29]
Section 40(1)(b)
around which the respondent is dancing and skirting
provides that a peace officer may, without a warrant, arrest a person
whom
s/he reasonably suspects as having committed an offence referred
to in Schedule 1, other than the offence of escape from lawful
custody. Schedule 1 makes no mention of assault with intent to
do grievous bodily harm, but an “
assault when a dangerous
wound is inflicted
.”
[30]
The respondent’s plea refers to “
section
40
”
as having been the section that was invoked by the arresting
officer. Besides being not specific as to the relevant
subsection, the plea makes no mention of the infliction of a
dangerous wound. During her testimony, Constable Maqangwana
made mention of a 3 cm wound, without stating what steps were taken,
prior to the arrest, to ascertain the nature and extent of
the
wound. Only upon such ascertainment would she have been
properly placed in a position to objectively conclude that the
wound
was one likely to endanger life or the use of a limb or organ.
[6]
[31]
The following remarks by Shongwe ADP in
De
Klerk v Minister of Police
[7]
are
apposite:
“
What is clear
is that the arresting officer relied on the statement by the
complainant and the J88 only, when she made the decision
to arrest.
Clearly, seen objectively, that was insufficient. The arresting
officer failed to investigate further the
circumstances of the
assault itself, whether the wound was inflicted intentionally or
whether it came about accidentally during
the scuffle. The
nature and the seriousness of the wound was never investigated.
The arresting officer wrongly assumed
that the assault was committed
with intent to do grievous bodily harm and that the offence is listed
in Schedule 1. Arrest
without a warrant in these circumstances
was not lawfully permissible. In my view the respondent failed
to establish the
jurisdictional facts, in particular that the
appellant committed an offence referred to in Schedule 1. I
find that the appellant
succeeded to prove that the discretion was
exercised in an improper manner.”
[8]
[32]
More light on the subject at hand is shed by Rogers AJA (with Leach
JA concurring in the minority judgment) in the
De
Klerk
case
[9]
when he says:
“…
[the
arresting officer] did not testify that she held the suspicion that
the appellant had inflicted a “dangerous wound.”
The suspicion she held was that the appellant had committed assault
with intent to cause grievous bodily harm. The suspicion
justifying a warrantless arrest in terms of
Section 40(1)(b)
is not
an abstract reasonable suspicion but an actual suspicion. If
the arresting officer did not hold the relevant suspicion,
it is
irrelevant that such suspicion – if it had been held –
would have been a reasonable one.”
[10]
[33]
The remarks quoted above apply with equal force in
hoc casu
,
for Constable Maqangwana did not exercise her discretion in relation
to whether the victim had sustained ‘
a dangerous wound
’.
She seems to have been content that the offence that the appellant
had been suspected of committing fell within the
purview of
section
40
(1)(b) without further ado. For all we know, the wound in
question might have been a superficial one posing no threat to life
or the use of a limb or organ. Accordingly, she failed to
establish the relevant jurisdictional factor namely, that
the victim
had committed a Schedule 1 offence. The finding by the court
a
quo
that the victim had in fact “
sustained a serious
injury
” does not find support from the evidence. The
discretion to arrest the appellant was, in my view, exercised
improperly.
The arrest and detention claim ought to have been
successful and the court
a quo
erred in not so finding.
Is
there a claim for malicious prosecution?
[34]
It now remains to consider the correctness or otherwise of the
finding of the court
a quo
that malicious prosecution “
was
not part of the plaintiff’s action
” resulting in the
court’s failure to determine this claim. The record
reveals, to the contrary, that the claim
was properly before the
court and very much extant. As already pointed out, the claim
for malicious prosecution had been
consolidated with the claims for
unlawful arrest and detention and assault. Moreover, the
pre-trial conference minutes
and the relevant case flow management
order defining the aspects that the parties were required to deal
with upon trial also pertinently
drew attention to the fact that
issues arising from this claim fell to be determined as well.
[35]
Nor would it have been correct for the court
a
quo
to
have jettisoned the malicious prosecution claim purely by reason
thereof that the National Prosecuting Authority (who had
self-evidently
not been joined in the action) is the only appropriate
functionary to sue in a malicious prosecution suit. Such
reasoning
would be fallacious. At the risk of stating the
obvious, nothing precludes a plaintiff even from citing a mere
informer (ordinarily
a lay person)
[11]
,
as opposed to the police or prosecutor concerned “
where
[the] informer makes a statement to the police which is wilfully
false in a material particular, but for which false information
no
prosecution would have been undertaken
”
and in so doing “
instigates
a prosecution
.”
[12]
In this instance the citation of the respondent as being the
instigator appears to my mind to have been deliberate and cannot be
eschewed on the basis of a perceived non-joinder of the National
Prosecuting Authority.
[36]
The malicious prosecution claim, having been not withdrawn or
abandoned, was alive, and remains so. The court
a quo
erred in finding that the claim was not part of the plaintiff’s
action.
[37]
Counsel were
ad idem
that the outstanding malicious
prosecution claim falls to be referred back to the court
a quo
for proper determination. That is indeed the proper course to
follow.
Costs
[38]
The appellant has been successful in the appeal. Costs ought to
follow the result. The question whether costs should
be on the
magistrate’s court scale or not can best be determined once the
court has pronounced on the
quantum
on all claims that
eventually succeed. It appears to me to be convenient that
quantum
be determined by the court
a quo
together with the remaining
claim of malicious prosecution to avoid a duplicity of trials.
It is perhaps unfortunate that
the parties agreed to a separation of
quantum from merits in the first instance because evidence on
quantum
is invariably (although there are exceptions) inextricably bound up
in the minutiae of a plaintiff’s entire experience of
the
arrest. Indeed, it is from the nuanced narrative given in this
respect that one gleans the real impact to the arrestee and
the
offence occasioned to him or her by the delict. The
parties in this instance however did not ventilate themselves
on this
aspect either before the court
a quo
or this court.
Order
[39]
In the result, I make the following order:
39.1 The appeal is
upheld with costs.
39.2 The order of
the court
a quo
is set aside and replaced with one in the
following
terms:
“
(a)
The plaintiff’s claim for wrongful arrest and detention
succeeds.
(b)
Costs incurred to date shall stand over for determination at
quantum
stage.”
39.3 The action
insofar as it relates to the malicious prosecution claim is
referred back to the court
a
quo
for
determination.
________________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
HARTLE
J:
I
agree.
________________________
B
HARTLE
JUDGE
OF THE HIGH COURT
KUNJU
AJ:
I
agree.
________________________
V
KUNJU
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellant:
Z Z
Matebese SC (with him
M
X Shibe)
Instructed
by: Caps Pangwa and Associates Attorneys
Counsel
for the respondent:
F S Gagela
Instructed
by: Mgweshe Ngqeleni Inc Attorneys
MTHATHA
Date
heard: 25 May 2018
Date
judgment delivered: 12 June 2018
[1]
Per
Mjali J.
[2]
The
appellant claimed that he had been kicked with booted feet on his
legs and chest and all over his body, and that handcuffs
were unduly
tightened around his wrists.
[3]
An
explanation was tendered at the hearing of the appeal that a
separate action for malicious prosecution was issued because the
charge for which the appellant had been arrested was withdrawn
after
the initial action was launched. This does not explain why a
separate claim for malicious prosecution could not just have
been
added to the initial action and may constitute a reason why the
costs of the second action should be disallowed or limited.
I,
however, make no pronouncement in this respect.
[4]
The rule
provides:
“
(13)
Where the onus of adducing evidence on one or more of the issues is
on the plaintiff and that of adducing evidence on any
other issue is
on the defendant, the plaintiff shall first call his evidence on any
issues in respect of which the onus is upon
him, and may then close
his case…”
[5]
This
is extracted from the opening address made on behalf of the
respondent.
[6]
R v Jones
1952 (1) SA 327
(E) at 332 D-F
[7]
(329/17)
[2018] ZASCA 45
(28 March 2018)
[8]
Compare:
Mneno v
Minister of Police,
unreported
decision by Hartle J (ECD Bhisho, Case No.: 647/2013 delivered
on 14 June 2016);
Goliath
v Minister of Police,
unreported
decision by Bloem J concurred in by Schoeman J (ECD Grahamstown,
Case No.: CA107/2017 delivered on 14 November
2017)
.
[9]
Supra
[10]
Supra
,
para [22] (c).
[11]
As against
public functionaries.
[12]
Madnitsky
v Rosenberg
1949
1 PH J5 (W) at 15.