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[2018] ZAECMHC 60
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Rasmeni v Minister of Safety and Security (1883/2010) [2018] ZAECMHC 60 (30 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
Case
No. 1883/2010
In
the matter between:
PHINDILE
RASMENI
Plaintiff
And
MINISTER
OF SAFETY &
SECURITY
1
st
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTION
2
nd
Defendant
JUDGMENT
JOLWANA
J
Introduction
[1] The plaintiff
instituted action against the first and second defendants alleging
unlawful arrest and detention, assault and
malicious prosecution.
In their plea the defendants denied engaging in any unlawful actions
that culminated in plaintiff
suffering any damages.
Plaintiff’s case
[2] In his particulars of
claim the plaintiff alleged that he was arrested by the police on 10
February 2006 at his home at Qokolweni
Administrative Area, Mthatha
without a warrant of arrest. He was subsequently detained at
Ngangelizwe Police Station from
the 10 February 2006 to the 14
February 2006. The arrest and detention and prosecution related
to the murder of one Mthobeni
Mcengwa (the deceased) and the robbery
of Bongani Ndesi.
[3] The plaintiff
testified that in the morning on the 10 February 2006 between 9:00
and 10:00 he was at his home. Three detectives,
Messrs Dlanaye,
Tile and Zwakala arrested him. They did not tell him why they were
arresting him, they only said there was something
that they wanted to
enquire from him. On arrival at Ngangelizwe Police Station he
was locked in a police cell without being
told the reason for his
arrest and detention.
[4] He recalled that it
was Mr Dlanaye who locked him in the police cells. Shortly
thereafter Mr Tile arrived and handcuffed
him. He was taken to
an office at the back of the police station within the premises.
He found Messrs Dlanaye and Zwakala
in that office. He was
asked why he had killed the deceased. When he denied any
knowledge about the killing of the
deceased the handcuffs were
tightened and Mr Tile stepped on the tight handcuffs. Mr
Dlanaye pulled a plastic bag over his
face thus suffocating him by
tightening it around his neck.
[5] When the plastic bag
was taken off he cried loudly. He was then taken to another
building down the street. The police
continued questioning and
torturing him until he admitted to some knowledge about the crimes.
He was taken back to the holding
cells where he was put in a small
single cell with no carpet. There were light sponges in that
cell but there were no blankets.
The cell had a flushing toilet
but it was dirty.
[6] The following morning
Mr Tile took him from the cells to the office at the back of the
police station where he again found Mr
Dlanaye and Mr Zwakala there.
Mr Dlanaye produced some papers and said he was teaching him how to
make a confession because
on Monday he would be taken to a Magistrate
to make a confession. He was later taken back to the cell.
In the afternoon
Mr Zwakala took him to that office down the street
outside the police station. He found Mr Zondelelo Vuke seated
on a table
with Mr Dlanaye. He already knew Mr Vuke. He
was taken to another office in the same building where he found Mr
Lizo
Ndzamela who was also already known to him. After some
discussions with Mr Ndzamela who seemed to have some information
about
his arrest and promised to pay him R30 000.00 for saying it was
Sikholiwe who shot the deceased and for protecting his vehicle,
he
was taken back to the cells.
[7] On Monday he appeared
at court where the case was postponed. Mr Dlanaye took him to
an office within the court building.
He found two male persons
who introduced themselves as an interpreter and a magistrate
respectively. He was told about his
rights to legal
representation. He told the magistrate that he wanted to speak
to his legal representative. Mr Dlanaye
was then called to take
him away. Mr Dlanaye came and took him back to Ngangelizwe
Police Station.
[8] Mr Dlanaye later took
him to the building down the street where he found Messrs Zwakala and
Tile. He was threatened with
being killed and he apologized for
not confessing to the magistrate. The following morning which
was a Tuesday he was taken
to an office in the Magistrates’
Court building by Mr Dlanaye. They found a male person who
introduced himself as a
Magistrate together with a female person who
introduced herself as an interpreter. It was on this occasion
that he signed
the confession after narrating the story that had been
agreed upon with the police which he had practiced with the police.
[9] He was later fetched
by Mr Dlanaye and he was not tortured again. On Monday the day
of his first appearance in court with
his co accused Sikholiwe Sutuku
and Siyabonga Gcaza, they had been told that they would go to Court B
where they could make formal
bail applications. The case was
then postponed to Wednesday for that purpose.
[10] Indeed on the 15
February 2006 he appeared in Court B. Nothing was said about
bail and the matter was again postponed
to another date. He did
not tell court that he wanted to be released on bail. They were
taken to Wellington Prison
where he was detained for a period of
about a month since his arrest. He was later released on bail
of R500.00.
[11] He later appeared in
the High Court on a charge of murder where he was discharged.
He testified that he should never
have been charged or prosecuted.
The charges grieved him as his rights were unjustifiably violated for
a crime he did not
commit. Even under cross-examination he
maintained that he should never have been arrested or prosecuted as
he did not commit
any offence.
First defendant’s
case
[12] Captain Dlanaye was
called to testify on behalf of the first defendant. He
testified that the identity of the persons
who had committed the
offences he and his colleagues were investigating were not known.
They planted informers to assist
them. They received
information that the plaintiff was involved in the offences. He
came to the conclusion that they
should go and search for the
plaintiff. He, together with warrant officer Zwakala and
warrant officer Notshokovu who has
since passed away went to the home
of the plaintiff. They found him at his home and told him that
they were arresting him
for the murder of the deceased Mthobeli
Mcengwa. They informed him about his constitutional rights
after which they asked
him to come to Ngangelizwe Police Station with
them. At the police station they informed him that he was going
to be detained.
They informed him of his rights before he was
taken to the cells. He was given a copy of the notice of
rights.
[13] For purposes of
interrogation he was booked out of the cells and taken to an office
in the police station. The plaintiff
told them that he
was present when the deceased was killed but it was Sikholiwe who
actually shot the deceased. He
denied that the plaintiff was
assaulted or tortured in any way. The plaintiff signed a
warning statement in which he implicated
himself. He also
voluntarily agreed to make a confession before a magistrate. He
was taken to the magistrate and he
made the confession at once.
Having been arrested on the 10 February 2006 on Friday, confession
was taken on Tuesday the
day after he appeared in court. Both
the arrest and detention were effected in accordance with the law.
[14] Under
cross-examination he testified that the informers informed them that
the plaintiff and Phindile Gcaza were involved in
the murder.
They also told them that the assailants were travelling in a white
cresida. He did not recall when exactly
this information was
given to them by the informers. They did not get any additional
information from the informers because
the informers were very close
to the suspects. [15] They also got some information from Mr
Bongani Ndesi who was a complainant
in the case. He confirmed
that the initial investigating officer was Mr Notshokovu before the
docket was given to him.
He conceded that in his statement Mr
Notshokovu does not say Bongani Ndesi said the plaintiff was involved
in the commission of
the offences and that Bongani Ndesi talks about
two assailants who robbed them.
[16] He confirmed that he
acted and arrested the plaintiff on the information from the
informers exclusively. He testified
that in his statement Mr
Ndesi spoke of two assailants from a white vehicle. He got the
information which led to the plaintiff’s
arrest not on the 9 or
10 February 2006 but before and he did not think of applying for a
warrant of arrest because the suspects
were well known. He knew
that there is an option of arresting with or without a warrant of
arrest. The vehicle said
to have been used in the commission of
the offences belonged to Mr Lizo Ndzamela. They did not arrest
him because he told
them that he had lent the vehicle to Mr Sikholiwe
Sotuku. They searched for the car but could not find it.
He could
not explain why they could not get the registration number
of the vehicle from its owner, Mr Lizo Ndzamela.
Second defendant’s
case
[17] The second
defendant’s witness Mrs Van Wyk testified in respect of the
claim for malicious prosecution. She testified
that she
received the docket containing a statement by a complainant, Bongani
Ndesi. In his statement Mr Ndesi stated that
he was robbed by
two occupants of a vehicle. There was also a statement by the
plaintiff in which he said he was one of the
occupants of the said
vehicle. On the basis of these two statements he concluded that
there was a
prima facie
case to be answered by the plaintiff.
On this basis prosecution was justified and there was no malice.
[18] Under
cross-examination she testified that in the charges preferred against
the plaintiff common purpose was not included.
But in his
statement the plaintiff placed himself at the crime scene even though
there was no unequivocal admission to murder.
She denied that
it was reckless to prosecute the plaintiff. She decided to
prosecute because the docket had a statement by
Bongani Ndesi in
which he said he was robbed by occupants of the vehicle. There
was a deceased person who had been killed
in the incident and there
was the plaintiff’s statement in which he said he was one of
the occupants of the vehicle.
In the circumstances she denied
that the decision to prosecute was not legally warranted. The
defendants closed their cases.
The arrest
[19] It is trite law that
for arrest and detention it is sufficient for the plaintiff to allege
that he was arrested and detained.
Thereafter, the onus shifts
to the defendant who must justify the arrest and subsequent
detention. In this case the first
defendant filed a plea in
which the arrest and detention were admitted but pleaded that they
were lawful. It was argued on
behalf of the first defendant
that the police were entitled to arrest the plaintiff in terms of
section 40
(1) (b) of the
Criminal Procedure Act 51 of 1977
as they
reasonably suspected him of having committed an offence referred to
in Schedule 1, the murder of Mthobeli Mcengwa.
[20] It was submitted
that in the main the justification for the arrest of the plaintiff
was given by Inspector Zwakala, an investigating
officer who
testified in the criminal case. It was submitted that his
evidence in the criminal trial was that he received
information from
informers on 9 February 2006 that one of the perpetrators of the
offences was the plaintiff. This was also
confirmed by a co
accused Siyabonga Gcaza before the plaintiff was arrested.
[21] The difficulty with
the first defendant’s reliance on the evidence given during
criminal proceedings in civil proceedings
is that in this case the
defendant did not call those two witnesses, Inspector Zwakala and the
co accused Siyabonga Gcaza to come
and testify. It was not
explained why they were not called nor was it suggested that the
evidence of Inspector Zwakala in
the criminal record which was
admitted into the civil proceedings was the best evidence available
from him. I find neither
comfort nor justification in placing
reliance on the evidence given by a witness in criminal proceedings
when there is no explanation
why that witness has not been called to
testify in the civil case.
[22] In my view a court
should not easily rely on the record of criminal proceedings to
determine an issue in civil proceedings.
The plaintiff is
entitled to cross examine the witness in the civil proceedings and
test his credibility. At the same time
the accused is entitled
to maintain his silence in criminal proceedings. This, in my
view, immediately exposes the limitations
of the evidence given in
the criminal trial when it is sought to be used in civil
proceedings. For this reason I do not understand
the submission
that Inspector Zwakala’s evidence during the criminal trial was
not refuted. No authority was given
for the proposition that a
party in civil proceeding does not have to call a witness who had
testified during a criminal trial
and that his evidence as contained
in the criminal trial record suffices. I am equally not aware
of any authority for this
submission.
[23] The only witness
called to testify for the first defendant was Mr Dlanaye who was part
of the team of detectives that arrested
the plaintiff. Simply
put, his evidence amounted to no more than that he had information
from informers that the plaintiff
was involved in the offences.
On the basis of that information they proceeded to arrest the
plaintiff without a warrant of
arrest. He did not give evidence
on how that information was verified and found to be reliable.
He did not explain
why, being aware of who was the owner of the
vehicle driven by the assailants, he did not establish its
whereabouts. He did
not explain why he did not ask the owner of
the vehicle for the registration number of the vehicle so that he
could have access
to it for further investigation. He did not
explain the reason for the haste with which the plaintiff had to be
arrested
before the information from the informers could be verified.
[24] This is important
because
section 40
(1) (b) of the
Criminal Procedure Act requires
the
police to act on reasonable suspicion that the plaintiff had
committed an office referred to in Schedule 1. Furthermore
section 13
of the
South African Police Service Act 68 of 1995
places
certain constraints on police officers.
Section 13
reads as
follows:
“
(1)
Subject to the Constitution and with due regard to the fundamental
rights of every person, a member may exercise such powers
and shall
perform such duties and functions as are by law conferred on or
assigned to a police official.
(2) …
(3) (a) A member who is
obliged to perform an official duty, shall, with due regard to his or
her powers, duties and functions,
perform such duty in a manner that
is reasonable in the circumstances.”
[25] It seems to me that
the police acted not only in total disregard of the Constitution but
also ignored completely their own
legislation to which they must be
held to account. In
Lapane v Minister of Police
2015 (2)
SACR 138
at 143 para 28 the court stated that:
“
What
is meant by s13 of the SAPS Act is that all police officers must act
in accordance with the requirements of the Constitution
and in doing
so must have regard to particularly, the fundamental rights of every
person they are dealing with in the course of
their duties.”
[26] Clearly police acted
in total disregard of the rights of the plaintiff and appear to have
regarded those rights as an unnecessary
irritant worthy of being
ignored. It goes without saying that the arrest was unlawful as
no attempt was made prior to the
arrest of the plaintiff to guard
against the possibility of a misinformed informer or a rumour
mongering informer. This possibility
could only be excluded
through informers’ information being subjected to some form of
objective verification so as to conclude
that it was reliable.
Only through this process could police have acted reasonably, even if
it were to turn out that their
conclusions and therefore their
decision to arrest the plaintiff were wrong. In the
circumstances the arrest of the plaintiff
could not have been
lawful. It seems to me that plaintiff was arrested, not on
reasonable suspicion but on suspicion of being
involved in the
commission of the crimes based on the informer’s information.
Detention
[27]
Having found the arrest to be unlawful it should ordinarily follow
that the subsequent detention is unlawful
[1]
.
For the sake of emphasis, I must point out that the onus to justify
the lawfulness of the detention is that of the defendants.
It
has been conceded on behalf of the defendants that the murder for
which the plaintiff was arrested is the one envisaged in Schedule
and
therefore the plaintiff would not have been required to discharge the
onus placed on a bail applicant by
section 60
(11) (b) of the
Criminal Procedure Act.
[28
]
Section 60
(11)
reads as follows:
“
60
(11) notwithstanding any provisions of this Act, where an accused is
charged with an offence referred to –
(a)
in
Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the
law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his
release;
(b)
in
Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he or she is dealt with
in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies
the
court that the interests of justice permit his release.
[29] This concession is
well made as neither
section 60
(11) (a) or (b) are applicable to the
murder charge which is a Schedule 1 offence in this case.
However, it was submitted
that the other charge for which the
plaintiff was arrested was robbery with aggravating circumstances in
which a firearm was used.
This is a Schedule 6 offence and
therefore the provisions of
section 60
(11) (a) are applicable.
Therefore the onus on the granting of bail was on the plaintiff to
adduce evidence which satisfies
the court that exceptional
circumstances existed which in the interests of justice permited his
release.
[30]
The case of the first defendant is that it was up to the accused to
“
pilot
his bail application and discharge the onus of proving the existence
of exception circumstances before he could be granted
bail.”
[2]
For a better and full understanding of the defendants’ case in
this regard I quote the full submission as contained
in defendants’
further supplementary heads of argument:
“
6.
That being the position; when on the date of his first appearance
before court the plaintiff was remanded to the bail court where
he
was to appear two (2) days later, the onus was on him to pilot his
bail application and discharge the onus of proving the existence
of
exceptional circumstances before he could be granted bail. The
duty to bring the bail application and lead evidence first
in support
thereof lied foursquare on him.
7.
7.1 His evidence to the
effect that on that date he did not make any bail application puts
paid to any suggestion that there could
be any fault on the part of
the police or the state for him being remanded in custody on that
date. Having been brought to
court by the police on that date
specifically with the objective of affording him a chance to bring
his bail application, the decision
whether to actually bring the bail
application or not rested exclusively with him. He could not be
forced to do so.
7.2 Having decided not to
bring the bail application the plaintiff’s remand in custody by
the court was in full accordance
with the provisions of
Section 60
(11) (a), which required him to be detained in custody unless and
until he had made a bail application and discharged the onus
on him
to show the existence of the required exceptional circumstances with
regard to the robbery charge.”
[31] The difficulty with
this submission is that it does not account for the detention from
the 10 February 2006, the day of the
plaintiff’s arrest to
Monday the 13 February 2006, the day of the plaintiff’s first
appearance in court. It merely
focuses on the plaintiff having
allegedly failed to apply to be released on bail two days after the
date of the first appearance.
[32] This, in my view, is
not in accord with what I consider to be the trite legal position
that the police must justify the detention
in the first place even
before the first court appearance. It cannot be that because a
person has been charged with an offence
reflected in Schedule 6, that
person must necessarily be detained as a matter of statutory law,
namely
section 60
(11) of the
Criminal Procedure Act.
[33
] More is required of
the police in making a decision that detention is required in the
first place and indeed further detention
is justifiable. That
this is a requirement is a matter of constitutional law. In
this regard the legal position was
fully explained by Tshiki J in
Botha v Minister of Safety and Security and Others
;
January
v Minister of Safety and Security and Others
2012 (1) SACR 305
at
316 para 29 – 31 where the learned judge said:
“
[29]
It is also trite law that in a case where the Minister of Safety and
Security (as defendant) is being sued for unlawful arrest
and
detention does not deny the arrest and detention, the onus to justify
the lawfulness of the detention rests on the defendant
and the burden
of proof shifts to the defendant on the basis of the provisions of s
12 (1) of the Constitution, which provisions
are described in para
[11] of this judgment. These provisions, therefore, place an
obligation on police officials, who are
bestowed with duties to
arrest and detain persons charged with and/or suspected of the
commission of criminal offences, to establish,
before detaining the
person, the justification and lawfulness of such arrest and
detention.
[30] This, in my view,
includes any further detention for as long as the facts which justify
the detention are within the knowledge
of the police official.
Such police official has a legal duty to inform the public prosecutor
of the existence of information
which would justify the further
detention. Where there are no facts which justify the further
detention of a person, this
should be placed by the investigator
before the prosecutor of the case, and the law casts an obligation on
the police official
to do so. In
Mvu v Minister of Safety
and Security and Another
Willis J held as follows:
‘
It
seems to me that, if a police officer must apply his or her mind to
the circumstances relating to a person’s detention,
this
includes applying his or her mind to the question of whether
detention is necessary at all.’
It goes without saying
that the police officer’s duty to apply his or her mind to the
circumstances relating to a person’s
detention, includes
applying his or her mind to the question whether the detention is
necessary at all. This information,
which must have been
established by the police officer, will enable the public prosecutor
and eventually the magistrate to make
an informed decision whether or
not there is any legal justification for the further detention of the
person. The above view
was echoed by Froneman J in
Tobani v
Minister of Correctional Services NO
at 323b-e as follows:
‘
What
I have said thus far about the issue of the unlawfulness of
plaintiffs’ detention is based squarely on the principle
of
constitutional legality. This is a clear case of a public power
being exercised by part of the executive administration
of the State,
namely, in this case, the defendant and the servants in the
Department of Correctional Services. In these circumstances
I
think it is correct to approach the matter at the outset from the
viewpoint of legality. That is what I understand is called
for
in terms of the Constitutional Court’s decision in the
Pharmaceutical
Manufacturers’
case, above, and it appears to me that the pre-constitutional
common-law would have made the same demand, albeit perhaps couched
in
different terms.
In the
Pharmaceutical
Manufacturers’
case Chaskalson P, writing for the full
court, emphasized that the exercise of all public power must comply
with the Constitution
which is the supreme law, and the doctrine of
legality which is part of that law (at paragraph [20]).’
[31] It follows from what
I have stated above that our constitutional provisions referred to
above make it obligatory for police
officers to first establish the
legal justification for the further detention of a person so as to
relay such information to the
public prosecutor and the latter would
then, after applying his mind to the matter, be in an informed
position whether or not to
apply for the further detention of the
person in custody. In my view, and in practice, it is the
police official investigating
the case who should be in a position
to, and must, inform the prosecutor about the strength or otherwise
of his or her case.
Failure by the police officer to apply his
mind in the manner suggested supra, could result in the further
detention being contrary
to the constitutional provisions and liable
to be declared to be unlawful.
[34] It is common cause
that the plaintiff was arrested at his home in Qokolweni on the 10
February 2006 in the morning. He
was thereafter interrogated
and detained and appeared in court on the 13 February 2006. No
evidence on the basis of which
it was sought to justify that initial
detention. The further detention is now sought to be justified
on the provisions of
section 60
(11) (a) of the
Criminal Procedure
Act. In
simple terms the case of the defendants is that a
citizen who is arrested for a Schedule 6 offence faces automatic
detention.
The legal basis for this proposition has not been
given nor is the justification being made on the facts. This
section is
clearly being used to abdicate constitutional
accountability.
[35]
As indicated in the authorities cited above, there has to be same
rational basis for interference with constitutional rights.
I
simply do not think that the defendant can avoid constitutional
responsibility by using legislation arbitrarily. Doing
so would
be like making the Constitution accountable to a statutory provision
when in fact a statute obtains its validity and therefore
its power
from the Constitution
[3]
.
In my view detaining people arbitrarily is invalid and has no legal
justification. There can be no justification without
fact based
evidence. The defendants cannot just refer to the provisions of
section 60 (11) (a) in a vacuum especially where
the onus rests on
them as in this case, to justify the detention at all stages of the
criminal trial.
Malicious prosecution
[36] The evidence of the
plaintiff is that he should never have been prosecuted as he never
committed any offence. It is common
cause that the plaintiff
was charged with murder, robbery with aggravating circumstances,
unlawful possession of a firearm and
unlawful possession of
ammunition. The witness for the second defendant, Ms Van Wyk
testified that when she received the
docket it contained two
statements on the basis of which she decided that prosecution was
justified and on reading those statements
decided to go ahead and
prosecute the plaintiff.
[37] One of those
statements was that of a complainant, Bongani Ndesi in which he said
he was robbed by two occupants of a vehicle.
The second
statement was that of the plaintiff in which he said he was one of
the occupants of the said vehicle. Based on
those two
statements she believed that there was a
prima facie
case
against the plaintiff. Prosecution was justified and there was
no malice for prosecuting the plaintiff, so the evidence
went.
[38] The starting point
must be the two statements referred to above. The statement of
Bongani Ndesi, the complaint was admitted
into the record as exhibit
“E”. In that statement he says in part:
“
3.
On Saturday 24 December 2005 at about 21:15 Mthobeli Mcengwa and
myself were walking on the gravel road from Qokolweni Mission
to
Mahodini Store. As we were walking up the gravel road, a white
sedan car approached from the opposite direction and suddenly
stopped
next to us. The occupants of the vehicle alighted and came
straight to us. They instructed us to lie down and
so we did.
The suspects robbed me of my cellphone Nokia 5210 blue in colour,
cell no. 0733327756, R6.00, khakhi grasshoper
shoes.
4. As we were lying down
the suspects fired two shots as they were both in possession of
pistols. The deceased was busy trying
to loosen the shoe laces
so as to hand over his shoes to the suspects. One of the
suspects fired one shot on the deceased’s
head and killed him.
Thereafter the suspects were speaking Xhosa fluently. Hence it
was dark on the scene, I could
not even recognize the suspects.
I cannot even identify them. The cellphone of the deceased
Mthobeli Mcengwa was not
taken. I could not even identify the
registration plates and type of the vehicle.”
[39] The statement of the
plaintiff is contained in exhibit “A”, captioned record
of confession. The statement
of the plaintiff reads as follows:
“
On
the 24 December 2005 I arrived at a certain tarven called Mahodini.
There I found my friends Sikholiwe and Siyabonga.
They told me
that they were waiting for Lizo so that he could borrow them the
vehicle. Indeed Lizo arrived and at that time
we were consuming
liquor and he took us to his own tavern. On our arrival at the
tarven of Lizo Sikholiwe asked Lizo to borrow
him the vehicle. Lizo
asked Sikholiwe where he was taking the vehicle to & he replied
that he wanted to go home to change his
attire. Lizo gave us
the vehicle and we turned to another tarven where we bought two beers
& we proceeded taking the
direction of Qokolweni.
Our aim to go to
Qokolweni was to look for girls. We did not reach Qokolweni we
turned in a junction taking a direction to
the Great Place.
Sikholiwe was complaining about the fuel saying that he was running
out of the fuel. On the way back
we met two young men.
Another those young men there was the deceased by the name Mthobeli.
Siyabonga told Sikholiwe
that here is a young man who is in love with
my girlfriend who is the mother of my child. We called the
deceased to come
next to the vehicle. When he was close to the
vehicle we opened the doors of the vehicle. Then Sikholiwe
asked from
the deceased what he was wearing and the deceased
responded that he was wearing a pair of shoes.
Sikholiwe further told
the deceased to take off his shoes. The deceased only took off
one shoe but while I was still looking
at that I heard a gun shot.
I noticed that the person who was shooting was Sikholiwe and he was
shooting at the deceased.
I did not notice exactly where he was
shot at his body. Then I become shocked and I entered the
vehicle as I was drunk.
When I was boarding the vehicle I
noticed that the other young man who was going with the deceased was
running away. It was
during night time. We drove the
Cressida at a high speed to the tarven where we were I was shocked
and I also noticed that
Siyabonga was also shocked. We wanted
to alight at the tarven. We did not alight at Mahodini we
proceeded to Lizo’s
shebeen to give him the vehicle.
We arrived at Lizo’s
place and Lizo came out of his house and we were inside his vehicle.
Lizo asked Sikholiwe why he
was still wearing the same attire as he
had told him that he wanted to change his clothing. He told him
that he decided not
to change his clothes. From there Siyabonga
left for Mahodini and we i.e. I and Sikholiwe followed. I then
entered
Mahodini tarven and Sikholiwe went home to sleep. I
remained at the tarven until the following morning. That is
all.”
[40] Whether or not the
decision to prosecute based on these two statements without further
investigation was the correct decision
is irrelevant. The
question is whether based on these two statements on which Ms Van Wyk
decided to prosecute the plaintiff,
she was malicious in doing so as
was suggested by the plaintiff.
[41] The legal position
on malicious prosecution was restated by the Supreme Court of Appeal
in
Minister of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
SCA at 50 where the requirements for malicious
prosecution were stated as follows:
“
[8]
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 (investigated or instituted the
proceedings);
(b)
that
the defendants acted without reasonable and probable cause;
(c)
that
the defendants acted with “
malice
”
(or
anino
injuriandi
);
and
(d)
that
the prosecution has failed.”
[42] All four
requirements must exist for the claim on malicious prosecution to
succeed. In this case the first and the last
requirements are
not in dispute and are in fact common cause. There is therefore no
point in dealing with the facts relating to
these two requirements.
[43] Was there absence of
reasonable and probable cause? At paragraph 20 of the
Moleko
judgment
, Van Heerden JA defined reasonable and probable and
cause as follows:
“
[20]
Reasonable and probable cause, in the context of a claim for
malicious prosecution, means a honest belief founded on reasonable
grounds that the institution of proceedings is justified. The
concept therefore, involves both a subjective and an objective
element.”
[44] I can do no better
than refer to the case of
Minister of Safety and Security NO v
Schubach
(473/13)
[2014] ZASCA 216
(1 December 2014) in which
Zondi JA, writing a judgment of the full court had this to say:
“
[14]
This Court in
Beckenstrater
v Rottcher and Theuniseen
1955 (1) SA 129
(A) at 136A-B set out the test for ‘absence of
reasonable and probable cause’ as follows:
‘
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff’s guilt, a subjective element
comes into play and disproves the existence, for the defendant, of
reasonable and probable cause.’
[15] The test contains
both a subjective and objective element which means that there must
be both actual belief on the part of
the prosecutor and that belief
must be reasonable in the circumstances (J Neethling, JM Potgieter &
PJ Visser
Neethling’s Law of Personality
(2 ed, 2005) at
176).”
[45] The other
requirement is malice or
animus injuriandi
. On this
requirement the learned judge of appeal stated the law as follows in
Moleko
:
“
[64]
The defendant must thus not only have been aware of what he or she
was doing in instituting 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.”
[46] When the decision to
prosecute was made, it was not known whether the plaintiff’s
statement was to be admitted as evidence
against the plaintiff in
terms the
Criminal Procedure Act. What
was important is that
the prosecutor had a statement purportedly in which the plaintiff
mentioned the deceased by his name.
He also placed himself at
the scene of crime and identified the person who fired the fatal shot
at the deceased. In addition
to that the motive for the
shooting is revealed in that the deceased is said to be in love with
the girlfriend of the shooter.
[47] That the prosecution
was unsuccessful does not necessary translate into lack of a
reasonable and probable cause for prosecution.
The fact that in
the statement the plaintiff seems to be identifying somebody else as
the killer may mean that the plaintiff did
not unequivocally admit to
killing the deceased. But still it does not mean that in
subjectively believing as she did, the
prosecutor was malicious.
Whether or not the decision to prosecute in the circumstances was
correct is irrelevant and the
fact that prosecution did not succeed
is of no consequence to the decision that was taken at the beginning
of prosecution.
[48]
It may very well be that with the benefit of hindsight further
investigation would have been a wise thing to do instead of
going
ahead with prosecution. In that sense it could be that
the decision to prosecute was negligently made at that
stage.
Still as the Supreme Court of appeal said in
Moleko
,
negligence, even gross negligence does not translate to malice.
The plaintiff cannot, in my view, succeed on this head of
damages.
On the evidence the case for malicious prosecution has not been made.
[49] The last claim by
the plaintiff relates to his alleged assault by the police who
arrested and interrogated him. The attorney
for the defendant,
Mr Mgxaji advised court that he was no longer proceeding with the
claim for unlawful assault. He advised
court that there mere
say so of the plaintiff is not enough and on this basis this claim of
damages based on assault was being
abandoned. This decision was
correctly made as in any event, the onus to prove the alleged assault
rested squarely and only
with the plaintiff.
[50] This brings me to
the quantum of compensation for unlawful of arrest and detention in
respect of which the plaintiff has been
successful. The
plaintiff testified that he was detained for a period of about a
month after which he was released on bail
of R500.00. He did
not produce any bail receipt or call any other witness to corroborate
his evidence on the period of detention.
In this regard I was
urged to award damages of a period of 30 days for which period the
plaintiff claimed to have been detained.
[51] There are a number
of problems with this submission but I will only deal with two
difficulties. The first one is the
amended particulars of claim
of the plaintiff. At paragraph 6 thereof the following
allegation is made:
“
6.
Subsequent to his arrest the aforesaid plaintiff was detained at
Ngangelizwe Police Cells from the 10
th
February 2006 to 14 February 2006.”
[52] It is noteworthy
that even in the original particulars of claim prior to the
amendment, the same allegation was made in exactly
the same terms.
[53] In addition to that
Mr Mgxaji made an opening address at the commencement of the trial as
follows:
“
M’Lord,
by way of an opening statement the plaintiff, Phindile Rasmeni, in
this matter instituted action proceedings based
on unlawful arrest,
detention and assault as claim A whose genesis was murder allegation
that had occurred on the 24
th
December 2005. And the plaintiff was arrested by the first
defendant’s members on the 10 February 2006 without a warrant
of arrest and detained until the 14
th
February 2006, which arrest and detention the plaintiff will lead
evidence to demonstrate that it was unlawful and during which
arrest
and detention the plaintiff will lead evidence of an assault on him
as having been unlawful and wrongful.”
[54] This is the case
that the defendants pleaded to and came to answer. No legal
basis was laid for the court to find that
the plaintiff was in fact
detained for about a month when that is not the case the defendant
was called upon to answer. The
particulars of claim were not
amended in this regard nor was any evidence led beyond the mere
ipse
dixit
of the plaintiff. In the result the first defendant
is liable to the plaintiff for unlawful arrest and detention from the
10 February 2006 to the 14 February 2006.
[55] In the circumstances
the plaintiff succeeds in his claim in respect of unlawful arrest and
detention against the first defendant
from the 10 February 2006 to
the 14 February 2006. As indicated above no role was
played by the second defendant which
resulted in the plaintiff’s
arrest on the 10 February 2006 and his detention until the 13
February 2006. There is also
no evidence of any role having
been played by the second defendant which resulted in plaintiff’s
further detention from the
13 to the 14 February 2006.
Costs
[56] I was urged on
behalf of the plaintiff to find that this case never required the
services of senior counsel. Even worse
it never needed that
senior counsel should be assisted by junior counsel. Therefore,
so the submission went, the costs consequent
upon the employment of
two counsel should not be allowed. I agree. There was
nothing complicated about this case.
There was no justification
for the employment of two counsel. This is worse that the law
on unlawful arrest and detention,
assault and malicious prosecution
is trite and there is nothing novel or complicated about it as it has
been stated and restated
a number of times before by our courts.
There was also nothing peculiar or complicated about the facts of
this case as would
justify the employment of two counsel.
[57] In the result the
following order will issue:
1. The first defendant is
ordered to pay to the plaintiff an amount of R125 000.00 as and for
damages in respect of unlawful arrest
and detention.
2. The first defendant is
ordered to pay interest on the amount of R125 000.00 to be calculated
at the prescribed rate of interest
from a date 14 days after the date
of judgment to date of payment.
3. The first defendant is
ordered to pay plaintiff’s costs of suit together with interest
thereon, such interest to be calculated
at the prescribed rate of
interest from a date 14 days after
allocatur
to date of
payment.
4. The plaintiff’s
claim in respect of malicious prosecution against the second
defendant is dismissed with costs, save that
the costs of one counsel
only shall be allowed on taxation.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Attorney for the
Plaintiff: SL MGXAJI
Instructed by: MGXAJI &
CO. INCOPORATED
MTHATHA
Counsel for the
Defendant: PHS ZILWA WITH ND NGADLELA
Instructed by: STATE
ATTORNEY
MTHATHA
Heard on: 21 September
2018
Delivered on: 30 October
2018
[1]
In
Minister of
Safety and Security v Tyokwana
2015
(1) SACR 597
at 600, para 12 it was held that “
If
the arrest of the respondent were unlawful it would follow that his
subsequent detention was also unlawful.”
2
Paragraph
6 page 3 of defendant’s further supplementary heads of
arguments
[3]
Section 2 of the Constitution provides that:
“This Constitution is the supreme law of the Republic; law or
conduct inconsistent
with it is invalid, and the obligations imposed
by it must be fulfilled.