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[2017] ZAGPPHC 13
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Mahlangu v Minister of Police (66326/2010) [2017] ZAGPPHC 13; [2017] 5 BLLR 528 (GP); (2017) 38 ILJ 1749 (GP) (25 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
25/1/17
Case
No: 66326/2010
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
JABULANI
JAMES
MAHLANGU
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
JUDGMENT
D
S FOURIE, J:
[1]
The plaintiff instituted action against the defendant for payment of
R625 000.00 on the ground of malicious proceedings. At
the
commencement of the trial it was agreed between the parties that a
legal issue relating to the plaintiff's cause of action
should be
separated from all other issues and that a finding in this regard be
made before any evidence is presented.
[2]
The question to be decided has been formulated as follows:
"Whether the
disciplinary proceedings as envisaged by the South African Police
Service Disciplinary Regulations fall within
the ambit of malicious
proceedings as
a
cause
of action, assuming that all the elements of the delict are present."
In
terms of the provisions of Rule 33(4) an order was made that this
issue be separated from all other issues and that the other
issues be
postponed
sine die.
THE
PLEADINGS
[3]
The relevant paragraphs of the plaintiff's amended particulars of
claim read as follows:
·
On or about 20 February 2009 at Sunnyside
Police Station General Nkomo and/or other unknown members of the
defendant wrongfully
and maliciously set the law into motion by
instigating the laying (of)
a
false
charge of assault with the intention to cause grievously bodily harm
against the plaintiff;
·
When the charge was laid and the false
information given the mentioned General Nkomo and/or other unknown
members of the defendant
had no reasonable or probable cause for
doing so nor did they have any reasonable belief in the truth of the
information given;
·
As
a
result
of General Nkomo's and other unknown members of the South African
Police's conduct the plaintiff
was
suspended from 24 March 2009 to 31st July 2009 without any
remuneration.
·
As
a
further
result of General Nkomo and the other unknown members of the South
Africa Police's conduct the plaintiff was charged departmentally
on
28 July 2009 which was wrongful, malicious (and) without probable
cause;
·
On 26 August 2009 the charges were withdrawn
against the plaintiff due to the fact that there was no evidence.
[4]
In the plea it is admitted that a charge of assault with the intent
to cause grievous bodily harm was laid against the plaintiff;
that
the plaintiff was suspended without remuneration for the period 25
March 2009 to 30 July 2009; that the plaintiff was departmentally
charged; and that the charge against the plaintiff was withdrawn.
THE
REGULATIONS
[5]
I was referred to the South African Police Service Discipline
Regulations promulgated under section 24(1) of the South African
Police Service Act No 68 of 1995 (published in
Government Notice
R643 on 3 July 2006). These regulations make provision for
conduct that may warrant disciplinary action as listed in regulation
20, that an employee may be charged for misconduct in accordance with
these regulations and certain sanctions which may be imposed
in terms
of regulation 15. It also provides for a procedure in conducting a
disciplinary hearing which includes the leading of
evidence by both
parties and the questioning of witnesses.
[6]
Regulation 15 provides for certain sanctions which may be imposed
after a finding of misconduct. These sanctions include, for
instance,
counselling, a written warning or dismissal. In terms of regulation
20 an employee will be guilty of misconduct if he
or she, among other
things, commits any common law or statutory offence. Regulation 17
provides for a right of appeal against a
finding or sanction and the
procedure to be followed in that regard.
[7]
It is common cause that the plaintiff was charged departmentally in
terms of these regulations after a notice to appear at a
disciplinary
hearing was served on the plaintiff in terms of regulation 12(2) and
(3). According to the "particulars of the
charge" the
plaintiff was charged with misconduct for contravening regulation
20(z) in that he committed "a common law
or statutory offence
namely assault GBH".
DISCUSSION
[8]
It was contended on behalf of the plaintiff that the disciplinary
proceedings as envisaged by these regulations fall within
the ambit
of malicious proceedings as all the elements for such a cause of
action have been pleaded, assuming that the plaintiff
would be able
to prove all of them. It was also submitted that this cause of action
is not limited to malicious criminal
or civil proceedings, but
that it also includes disciplinary proceedings established by
statute.
[9]
Counsel for the defendant submitted that malicious prosecution is an
abuse of the process of the Court by intentionally and
wrongfully
setting the law in motion on a criminal charge or in civil
proceedings. It was therefore contended that this cause of
action is
limited to malicious criminal or civil proceedings instituted in a
court of law and does not include disciplinary proceedings
as relied
upon by the plaintiff.
[10]
The cause of action for a claim for damages caused by malicious legal
proceedings is the
actio iniuriarum
(Wille's
Principles of
South African Law,
9th Ed, p 1192, and also
Lederman v Moharal
Investments (Pty) Ltd
1969 (1) SA 190
(A) at 196H). In order to
succeed with a claim for malicious prosecution, a claimant must
allege and prove:
·
that the defendant set the law in motion
(instigated or instituted the proceedings);
·
that the defendant acted without reasonable
and probable cause;
·
that the defendant acted with "malice"
(or
animo injuriand1);
and
·
that the prosecution has failed.
(Minister
for Justice
&
Constitutional
Development v Moleko
[2008] 3 All SA 47
(SCA)
par 8).
[11]
With regard to the requirement that the defendant must have set the
law in motion (or instigated the proceedings) it is pointed
out by
the learned authors of
Wille's Principles of South African Law
(supra,
p 1193) that in the case of civil proceedings the record
of the civil suit speaks for itself as to the identity of the person
who
instituted the proceedings. Criminal proceedings, on the other
hand, are instituted in the name of the State and consequently to
render a particular person liable for malicious prosecution it must
be proved that such person in fact instigated the proceedings,
or
that he was actively instrumental in the prosecution of the charge.
With regard to the requirement that the prosecution has
failed the
same authors (p 1196) again refer to criminal or civil proceedings
which were terminated in favour of the plaintiff.
In
Thompson
&
Another v Minister of Police and Another
1971 (1) SA 371
(ECD)
at 375A-B it is also pointed out that in an action based on malicious
prosecution no action will lie until the criminal proceedings
have
terminated in favour of the plaintiff.
[12]
The question is whether disciplinary proceedings are included in the
proceedings referred to above? Counsel for the plaintiff
was unable
to refer me to case law where this issue was considered and decided
pertinently. However, it is necessary to refer to
some of the
judgments he quoted as authority.
[13]
In
Nxuba Municipality
&
Another v Tshingana
(CA227/07)
[2008] ZAECHC 97
the plaintiff relied on malicious prosecution as his
main cause of action. Prior to the hearing of the appeal notice was
given
to the parties to address the Court on whether a claim for
malicious prosecution exists in our law where there has been no
criminal
prosecution or civil proceedings, but only a disciplinary
inquiry in an employment relationship. According to the judgment (par
3) neither counsel could provide any authority for such a claim in
our law. As it was not necessary to decide this issue, it was
assumed
(without deciding) that such a claim may exist in our law.
[14]
In
Mandela v Amsterdam
(CA102/2010) [2010] ZAECGHC 72 the
appellant relied on malicious prosecution as a cause of action with
regard to internal disciplinary
proceedings instituted against him by
the Department of Correctional Services. The issue was whether the
plaintiff's claim had
prescribed. The Court had to determine the date
upon which the appellant's cause of action arose. When concluding
that the claim
did not prescribe, it was not necessary for the Court
to also consider the question whether malicious prosecution as a
cause of
action also includes the institution of disciplinary
proceedings.
[15]
I was also referred to the case of
Mabusela v The Minister
of Safety and Security
(67322/10) [2015] ZAGPPHC 801 where the
plaintiff instituted action against the Minister of Police based on
malicious prosecution
of disciplinary proceedings which had been
instituted against him. The issue was whether the plaintiff was
entitled to condonation
in terms of section 3(4) of Act 40 of 2002
for the late service of the prescribed statutory notice. Although the
Court regarded
it necessary to consider whether the plaintiff has a
reasonable prospect of success, it was not ceased with the issue
referred
to above. Legodi J specifically pointed out (par 12) that a
reasonable prospect of success in the main action should not be dealt
with "as if one is dealing with the trial".
[16]
Counsel for the defendant referred me to English case law for the
proposition that disciplinary proceedings are excluded "from
the
tort of malicious prosecution" and that this tort was only
restrictively extended to special instances of the abuse of
civil
proceedings
( Gregory (A.P.) v Portsmouth City Council
[2000] UKHL 3
;
[2000]
1 All ER 560).
It was contended that, having regard to this case, the
cause of action for a claim for damages caused by malicious
proceedings
should not be extended in our law to the institution of
disciplinary proceedings. In the
Gregory
decision the House of
Lords stated that a distinctive feature of the tort of malicious
prosecution is that the defendant has abused
the coercive powers of
the state (p 565a-b) and that this tort does not extend to
disciplinary proceedings (p 566h and p 570f-g).
[17]
What reliance should be placed on foreign law as a persuasive source?
The learned authors Neethling, Potgieter & Visser
(Law of
Delict,
7th Ed, p 4) point out that in the English law a
casuistic approach is followed where the law of delict consists of a
group or set
of separate delicts (or torts), each more or less with
its own rules. The aggrieved party may thus only render the
wrongdoer
liable if his conduct satisfies all the requirements of a
specific delict. They then proceed as follows (p 5):
"It is
self-evident that
a
legal
system embracing general principles of delictual liability is able to
accommodate changing circumstances and new situations
more easily
than one that adopts
a
casuistic
approach, since the latter approach requires the constant creation of
new delicts
...
while
general principles, because of their flexibility and pliancy, need
only be adapted or applied in
a
new
way
...
The South
African Law of delict, unlike the English law of torts, has therefore
been able to recognise and protect individual interests
(such
as
privacy and the goodwill of
a
corporation) which have only come to the fore
in modem times".
[18]
Van der Walt & Midgley
(Principles of Delict,
3rd Ed, p
30, par 23) also point out that the essential characteristic of the
South African law of delict is that it is founded
on general
principles of liability. They explain as follows:
"This is the
product of
a
long
historical evolution. In this respect it differs fundamentally from
the English law of torts which, despite the unifying force
and
influence of the concept of negligence, is still basically
a
casuistic system. The South African law of
delict is therefore not
a
random
collection of miscellaneous, unrelated
wrongs, but
a
detailed
body of principles, rules and concepts
founded on historically-developed broad basis
of liability
...
The
influence of English law has not changed or replaced the basic
foundations of the law of delict. Although English law has certainly
contributed to the superstructure of the South African law of delict,
it is still founded on the principles and concepts of Roman
and
Roman-Dutch law."
[19]
In
K v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC)
the Constitutional Court had to consider the scope of vicarious
liability under our law. It was pointed out by O'Regan J (par
34)
that there can be no doubt that it will often be helpful for our
Courts to consider the approach of other jurisdictions to
problems
that may be similar to our own. This approach was explained as
follows (par 35):
"It would seem
unduly parochial to consider that no guidance, whether positive or
negative, could be drawn from other legal
systems grappling with
issues similar to those with which we are confronted. Consideration
of the responses of other legal systems
may enlighten us in analysing
our own law, and assist us in developing it further. It is for this
very reason that our Constitution
contains an express provision
authorising Courts to consider the law of other countries when
interpreting the Bill of Rights. It
is clear that in looking to the
jurisprudence of other countries, all the dangers of shallow
comparativism must be avoided. To
forbid any comparative review
because of those risks, however, would be to deprive our legal system
of the benefits of the learning
and wisdom to be found in other
jurisdictions."
[20]
In
Sanderson v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC) the Constitutional Court had to consider the meaning of the two
phrases "within a reasonable time" and "after
having
been charged" as they appeared in section 25(3)(a) of the
repealed interim Constitution. With regard to comparative
research
Kriegler J said the following (par 26):
"In this context
I wish to repeat
a
warning
I have expressed in the past. Comparative research is generally
valuable and is all the more so when dealing with problems
new to our
jurisprudence but well developed in mature constitutional
democracies. Both the interim and the final constitutions,
moreover,
indicate that comparative research is either mandatory or advisable.
...
Nevertheless the
use of foreign precedent requires circumspection and acknowledgement
that transplants require careful management.
Thus, for example, one
should not resort to the
Baker
test or the Morin approach without recognising that our society and
our criminal justice system differ from those in North
America."
Our
Constitution also authorises recourse to foreign legal systems when
interpreting the Bill of Rights (section 39(1)(c)) and to
refashion
and develop the common law in order to promote the spirit, purpose
and objects of the Bill of Rights ( subsection (2)).
[21]
In our law, the
actio iniauriarum
is available where a
defendant has wrongfully and intentionally injured the bodily
integrity, dignity or reputation
(corpus, dignitas
or fama) of
the plaintiff (Wille's
Principles of South African Law, supra,
p
1166). Because malicious prosecution is an
iniuria,
it has
been stated that the personality aspect involved here is primarily
fama
or good name (Neethling, Potgieter & Visser,
Law
of Personality,
2nd Ed, p 182, par 3.1.2.5). However, it must
also be remembered that the different personality interests often
overlap and therefore
no sharp line can be drawn between these
injuries to personality rights.
[22]
In
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) the Constitutional
Court had to consider the law of defamation (which is also based on
the
actio iniuriarum)
in South Africa. O'Regan J pointed out
(in par 27) that in the context of the
actio iniuriarum,
our
common law has separated the causes of action for claims for injuries
to reputation (fama) and
dignitas
(dignity).
Dignitas
concerns the individual's own sense of self-worth, but included
in the concept are a variety of personal rights including, for
example,
privacy. The fact of there not being a sharp line between
the different forms of
iniuria,
appears from the following
dictum (par 27):
"In our new
constitutional order, no sharp line can be drawn between these
injuries to personality rights. The value of human
dignity in our
Constitution is not only concerned with an individual's sense of
self-worth, but constitutes an affirmation of the
worth of
human-beings in our society. It includes the intrinsic worth of
human-beings shared by all people
as
well
as the individual reputation of each person built upon his or her own
individual achievements. The value of human dignity in
our
Constitution therefore values both the personal sense of
self-worth as well as the public's estimation of the worth or
value
of an individual."
[23]
The right to human dignity is entrenched in section 10 of the
Constitution. It provides that everyone has inherent dignity
and the
right to have their dignity respected and protected. Taking into
account that the
actio iniuriarum
is a flexible remedy in our
law, as well as the constitutional framework for the protection of
personality rights in South Africa,
one should avoid the danger to
apply a strict dogmatic approach with regard to the different forms
of a personality infringement
which may be suffered by a plaintiff.
Therefore, the injury to personality suffered by a plaintiff as a
result of malicious prosecution
should not be confined to
fama
or
good name, but may also include, depending on the circumstances, an
infringement of the plaintiff's
dignitas
or dignity.
[24]
Having regard to all these considerations it appears to me that a
Court, when considering the responses of other legal systems
in a
matter like this, should avoid an uncritical adoption of foreign law
principles. The consideration of foreign precedent is
encouraged, but
the use thereof requires circumspection. It may be followed insofar
as those principles are not in conflict with
our well established
legal principles, taking into account (in a matter like this), the
general principles of our law of delict,
their flexibility and our
constitutional order.
[25]
When considering the
Gregory
case against this backdrop, it
appears that the question on appeal was whether the tort of malicious
prosecution is in law capable
of extending to the malicious
institution of domestic disciplinary proceedings by a local authority
against a councillor. The allegation
was that Mr Gregory had abused
his position as a councillor by using confidential knowledge gained
as a councillor for his personal
advantage. It was decided by the
House of Lords that the enquiry must proceed from the premise of the
law as it stands. The tort
of malicious prosecution in English law is
narrowly defined (p 565e). When considering the argument for a
development of the law,
it was pointed out that any extension of the
tort of malicious prosecution would have to take account of a number
of other torts
which are capable, depending on the circumstances, of
protecting the complex of interests of an individual damaged by
disciplinary
proceedings. The first is the tort of defamation which
serves to protect the reputation of individuals. The second tort to
be considered
is malicious falsehood (p 569g-j). It was then
concluded, taking into account the existence of other closely related
torts, that
the extension of the tort of malicious prosecution would
destroy "the simplistic case that there is no alternative
remedy"
(p 570e-f).
[26]
The facts in the case before me are different. A formal charge of
assault with the intent to do grievous bodily harm was laid
against
the plaintiff at the Sunnyside police station. The plaintiff was then
charged departmentally with misconduct for having
committed "a
common law or statutory offence". These are serious allegations
of a criminal nature formulated as a charge
in terms of the
Regulations. This charge (assault with intent to do grievous bodily
harm) as an offence can, depending on
the circumstances, constitute
an
iniuria
where not only the
fama
or good name, but
also the dignity of the person concerned are infringed. It is
therefore difficult to accept, from a principle
point of view, that a
plaintiff can suffer this kind of harm only when he or she was an
accused in criminal proceedings, but not
also in disciplinary
proceedings of this kind.
[27]
The fact that these proceedings were not instituted in a court of law
should also not be a decisive factor. In an action for
malicious
prosecution no action will lie until criminal proceedings have
terminated in favour of the plaintiff, but a refusal by
the Director
of Public Prosecutions to prosecute (before criminal proceedings have
been instituted in a court of law), is sufficient
( Thompson
&
Another v Minister of Police and Another, supra, 373 and 375
).
This is a flexible approach which illustrates that, depending on the
circumstances of each case, the requirement of "setting
of the
law in motion" should not in all matters be confined to criminal
proceedings instituted in a court of law, although
this is usually
the case.
[28]
The plaintiff was charged departmentally in terms of the Regulations
promulgated under
section 24(1)
of the
South African Police Service
Act. In
addition to so-called "primary" legislation, such
as legislation made by Parliament, there is also subordinate
legislation
in the form of regulations. Both
section 101(3)
and
section 140(3) of the Constitution refer to regulations in the
context of subordinate legislation. There can be no doubt that
the
plaintiff was charged departmentally in terms of a (statutory) law
promulgated in the form of subordinate legislation as opposed
to, for
instance, a domestic code of conduct which came into existence by
agreement only.
[29]
Taking into account that a formal charge of a criminal nature was
laid against the plaintiff at the South African Police, that
a
(statutory) law regulating disciplinary proceedings with regard to
this charge (as set out in the regulations) was then set in
motion,
that these proceedings were unsuccessful and assuming that all the
other elements of the delict are also present (as I
am required to do
according to the formulation of the legal question in paragraph 2
above), why should disciplinary proceedings
of this nature be
excluded from malicious proceedings as a cause of action? I am of the
view that the strict approach of the law
of torts as pronounced in
the
Gregory
case, if applied in this case, will inhibit the
flexible manner in which the general principles of our law should be
applied in
a matter like this. It will also not properly take into
account the ability to accommodate changing circumstances or new
situations,
as demonstrated in this matter, according to the general
principles of our law of delict, more particularly the
actio
iniuriarum,
within the framework of our Constitution. I am
therefore not convinced that I should follow the English law of torts
in this case.
[30]
Having regard to all the considerations referred to above, I conclude
that the disciplinary proceedings instituted against
the plaintiff on
28 July 2009, as provided for in the South African Police Service
Discipline Regulations of 3 July 2006 (R643),
fall within the ambit
of malicious proceedings as a cause of action. It is important to
bear in mind that not all disciplinary
proceedings are of a similar
nature. It should therefore be pointed out that I have attempted to
apply the law as it is found to
be, or should be, in the case before
me, without suggesting that it should necessarily also apply to all
other cases of disciplinary
proceedings.
ORDER
In
the result I make the following order:
1.
It
is declared that the disciplinary proceedings instituted against the
plaintiff on 28 July 2009, as provided for in the South
African
Police Service Discipline Regulations of 3 July 2006 (R643), fall
within the ambit of malicious proceedings as a cause
of action;
2.
The defendant is ordered to pay the costs of the
trial which was set down for hearing on 12 to14 September 2016.
__________________
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
Date:
25
January 2017