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[2017] ZAGPPHC 172
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Potgieter v Minister of Police and Another (80233/2014) [2017] ZAGPPHC 172 (20 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 80233/2014
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
WELMA
RICKA
POTGIETER
Plaintiff
and
MINISTER
OF
POLICE
First
Defendant
JACQUES
FERREIRA
Second
Defendant
JUDGMENT
C
R JANSEN, AJ
[1]
In
this matter the plaintiff sues the first and second defendants for
damages based on the alleged malicious prosecution of the
Plaintiff.
[2]
Merits
and quantum were separated for purposes of this trial and therefore
only the issue of liability is to be decided.
[3]
The
plaintiff is a warrant officer in the South African Police Service
and has 25 years’ service in the police. At the
time of
the trial, she was stationed at the Ogies detective branch. At the
time the prosecution was instituted in December 2000,
she was
stationed at the Witbank detective branch.
[4]
The
second defendant is a colonel in the counter intelligence section of
the South African Police based in Mpumalanga. He was similarly
stationed at the Witbank detective branch in December 2000 and was at
all relevant times the investigating officer in the prosecution
against the plaintiff.
[5]
In
terms of the pleadings, it is alleged that the second defendant
unlawfully and maliciously set the law in motion against the
plaintiff on 15 December 2000. The second defendant (to
whom I shall refer to as Ferreira) had the Plaintiff charged
with
theft, corruption and defeating the ends of justice. The charges
related to the presumed theft of a murder docket and the
attempted
sale of the docket to the murder accused in that case.
[6]
After
35 court appearances, spanning over a period of 12 years, the
plaintiff was eventually acquitted of all charges. The plaintiff
was
in fact discharged after the State’s case in terms of
section
174
of the
Criminal Procedure Act 51 of 1977
.
[7]
For
the Plaintiff to succeed in her claim, she must prove the following:
7.1
that
Ferreira set the law in motion against her in the sense that he
either instigated or formally instituted the proceedings;
7.2
that
there existed no reasonable or probable cause to set the law in
motion;
7.3
that
Ferreira acted with malice; and
7.4
that
the prosecution ultimately failed.
[1]
[8]
The
facts which gave rise to this most unfortunate saga started in
December 1999. At the time, Ferreira was investigating
a charge
of murder against one Petronella van der Merwe and, as such, the
relevant case docket was under his control and kept at
his office at
the Witbank Police Station.
[9]
At
the time, Ferreira held the rank of captain in the detective branch.
The Plaintiff was also stationed at the Witbank detective
branch but
in a different section than that which Ferreira was in.
[10]
The
Plaintiff was in command of a separate section of the branch and did
not work on the same dockets as Ferreira.
[11]
On
31 December 1999, Ferreira received information that the murder
docket against Van der Merwe had been stolen and that someone
was
attempting to sell it to Van der Merwe. As a result of this
information, Ferreira had to interrupt his plans to go on
leave for
the New Year’s weekend and returned to his office to follow up
on the lead.
[12]
An
arrangement was set up between the informant and the person
attempting to sell the docket to meet at some point to effect the
transaction. Before proceeding with his informant to the place
arranged, Ferreira contacted a colleague of his who was on
duty and
requested him to check whether the docket was, in fact, missing.
His colleague, a Sergeant Masanga, could not find
the docket.
[13]
Later
that afternoon, Ferreira arrested a person in respect of the theft of
the docket. However, the person was not found
in possession of
the docket although, when arrested, he acted very suspiciously as he
attempted to destroy the sim card in his
phone. This person was
later identified as one Johan Malan.
[14]
As
things turned out, the docket did arrive at the next court appearance
early in January 2000. However, the docket appeared
to have
been mishandled and appeared crumpled.
[15]
Although
there is no direct evidence as to how the docket was returned to its
rightful place in the system which sees the dockets
move from the
police station to the court, it is obvious from other evidence that
the docket was in fact stolen, and was returned
into the system
before the next court date.
[16]
Johan
Malan became the first accused in the subsequent prosecution in the
matter of theft of a docket, corruption and defeating
the ends of
justice.
[17]
Ferreira
investigated the phone calls that Johan Malan had made. The
investigation led him to the then spouse of the plaintiff,
a Mr
Hennie van Loggerenberg. Malan had made a number of phone calls
to Van Loggerenberg during the relevant period
leading up to the
events of 31 December 1999. Ferreira later learnt that the
plaintiff and Malan’s spouse were acquaintances.
[18]
On
the evidence led during this trial, the above information can be
considered to be common cause or not seriously in dispute.
From
a later statement that Van Loggerenberg made, when he became a
section 204
witness for the State, it is clear that the docket was in
fact stolen and that he and Malan had been involved in the theft and
the later attempts to sell the docket.
[19]
It
is, however, at this point, where the involvement of Van Loggerenberg
was established, that the further facts in this matter
become
seriously in dispute.
[20]
The
disputed facts become further complicated by the animosity between
the plaintiff and Ferreira.
[21]
The
first events relevant in this matter relate to the arrest and initial
release of Malan. Malan was arrested on a Friday.
Ferreira was already on leave and at the point of leaving on
vacation. He had to return to duty as a result of the information
received in respect of the stolen docket. After the arrest of
Malan on 31 December 1999, he then left and opened only a “skeleton
docket”. This simply means that he did not fill in the
usual A1 arresting statement as complainant and arresting officer
in
the case.
[22]
The
time arranged for Malan’s appearance in court exceeded the
constitutionally and statutorily determined time period of
48 hours.
As Malan and Van Loggerenberg had been acquaintances, and as we later
know, also accomplices, it was natural for
Malan’s wife to make
enquiries about his detention with the plaintiff. The latter two were
also acquaintances.
[23]
When
the 48 hours expired after the weekend, the plaintiff arranged with
one of her seniors that Malan be released. Malan
was, of
course, entitled to be released at that point as his continued
detention was unlawful.
[24]
However,
it should be noted that the plaintiff made no effort to contact
Ferreira about the release of Malan. It is this small,
but
important fact which started the animosity between the plaintiff and
Ferreira which neither of them made any attempt to defuse
at any
stage.
[25]
It
is at this stage that I wish to point to certain unfortunate aspects
of the plaintiff’s evidence. She was extremely
dogmatic
and subjective in the presentation of her evidence.
[26]
This
was not only true in respect of the release of Malan, but in respect
of a whole range of other issues which were in dispute.
She
refused to acknowledge that Ferreira had real reason to be upset with
the release of Malan and, more particularly, that he
had not been
contacted. The plaintiff’s only reply to this was a very
rule bound retort that the 48 hours had expired
and that she was
entitled to release Malan. The fact that her personal
relationship with Malan would create suspicions she
simply rejected
as unreasonable. The contrary is true. Ferreira’s
unhappiness about the fact that a colleague
did not even inform him,
let alone discuss with him, the release of Malan, accords with one’s
general experience of police
practices.
[27]
The
same stubbornness and unreasonableness continued in respect of a
number of other issues. The Plaintiff refused to accept,
even
15 years after the initial events and with the benefit of all the
evidence gathered since then, that the docket had, in fact,
been
stolen. She continued during this trial to assert that the
docket had possibly just simply been misplaced within the
police
station. This evidence of hers is simply not acceptable and it
shows her extremely unreasonable interpretation of
the facts.
[28]
She
also continued to defend her refusal to have her fingerprints taken
when requested to do so by Ferreira. She refused to
acknowledge
that her stance was unreasonable even though it could technically be
defended. She also refused to accept that
this simply further
fuelled the suspicions that Ferreira had against her.
[29]
Her
evidence that the docket could have been handled and uplifted by any
of the detectives in the branch is simply also not acceptable.
It is clear that Ferreira and his three colleagues, who worked in the
one office, considered themselves to be the only persons
with lawful
access to the dockets in their office.
[30]
The
fact that Van Loggerenberg’s fingerprints were later positively
linked to fingerprints on the docket should have led the
plaintiff to
change her stance dramatically. She should have realised at a
very early stage that there were very real reasons
to suspect her
husband of involvement, and that these suspicions would eventually
lead to her being suspected as well.
[31]
It
also did not help the cause of either plaintiff or Ferreira that
their seniors appeared to deal with the matter in a most inept
manner. The station commander should have given clear direction
in this matter and plaintiff’s direct in command should
have
been more assertive in ensuring that plaintiff co-operated with the
investigation of Ferreira. Instead, both of these senior
officials
seem to have avoided the conflict between plaintiff and Ferreira.
[32]
Plaintiff,
during her evidence, was quick to describe herself as a victim of
Ferreira’s malice, and stressed how this seriously
affected her
for a period of 12 years. At the same time, she did not
hesitate to make completely unsubstantiated allegations
against
Ferreira, such as that he had intimidated and threatened witnesses.
After all these years, it should have been clear to
her that these
allegations or suspicions had no basis. Again, this is all evidence
of her unreasonable subjectivity.
[33]
Ultimately,
however, this matter does not deal with the overly subjective and
unprofessional behaviour of the Plaintiff. It
concerns the
issue whether there was a reasonable basis for prosecuting the
Plaintiff and whether Ferreira was actuated by malice.
It is
the behaviour and the state of mind of Ferreira that must be at the
centre of the considerations here.
[34]
For
the reasons I give below, I am of the view that Ferreira at some
point during the investigation lost his professional objectivity
and
was, in fact, ultimately actuated by malice. It all resulted
from the personal animosity between himself and plaintiff.
[35]
Why
the matter against the plaintiff was not investigated by an external
independent division of the SAPS, which deal with alleged
corruption
of members, is not quite clear from the evidence. Such a unit
does exist as was confirmed by Ferreira. The
present matter is
a good example of why allegations of corruption against police
officials should not be investigated by members
attached to their own
divisions or police stations. The necessity for external
investigation mostly relates to the fact that
the police will be
suspected of covering up for each other and would not apply the
necessary professional integrity to their investigations.
[36]
However,
the contrary is also true as this case illustrates. A police officer
could also be the victim of personal animosity between
him/herself
and another officer stationed at the same branch. As this case
illustrates, office politics can reach dangerous levels.
The facts of
this case clearly show that animosity between members of the same
unit or division can also lead to injustice and
the loss of integrity
in investigations.
[37]
Very
early on in the investigation it became clear that Ferreira held
suspicions against plaintiff. These suspicions were
justified
and certainly deserved further investigation and attention.
However, Ferreira became entangled in the personal
animosity between
him and plaintiff and it is clear that he eventually shut his mind to
all the exculpatory facts.
[38]
Ferreira
eventually presented a statement to the prosecuting authorities for
purposes of a decision which contained seriously misleading
factual
assertions. There is no doubt that was done intentionally and with a
view of securing a prosecution against the plaintiff.
[39]
Ferreira
made a number of statements during the course of the investigation.
It is not necessary to analyse all of them.
What needs analysis
is statement A47 in the docket. This is the statement which was
eventually presented to the prosecuting
authorities as a summary of
the evidence in the docket.
[40]
There
are a number of factual allegations in this statement that need
particular attention.
[41]
Ferreira
is very meticulous in the statement in analysing the phone calls made
between Malan and Van Loggerenberg and a number of
other persons
involved. There is no doubt that an analysis of paragraphs 3 to
10 of this statement clearly shows that Malan,
Van Loggerenberg and
one De Fourtier were in contact with each other on various
occasions between the period 24 and 31 December
1999 and the
suspicions drawn from the exchange of these calls were well founded.
[42]
In
the statement, Ferreira does not miss the opportunity to rehash the
issues relating to the initial release of Malan. He
does not
hesitate to make the factual assertion that Johan Malan and the
Plaintiff were good friends. This, in itself, is
a serious
overstatement of the facts. Plaintiff knew Malan as an
acquaintance of her husband and she had had personal contact
with
Malan and his wife. However, to describe them as “goeie
vriende” is not accurate.
[43]
In
paragraph 23 of this statement, Ferreira asserts that only a
detective of the Witbank branch could have known when the docket
had
to be returned into the system. It is obvious that Ferreira
wanted to create the impression that only a detective of
the Witbank
branch could have had access to the docket and would have known how
to remove it and return it into the system.
[44]
To
the outside observer, this fact would appear to be conclusive in
respect of creating the link between the theft of the docket
and the
plaintiff as the only detective in the branch who had a close link,
albeit a personal one, with the persons who did in
fact steal the
docket.
[45]
These
statements by Ferreira are unfortunately not a fair and honest
presentation of the facts. He completely omits to state
that he
was aware of the fact that Van Loggerenberg had, on a number of
occasions, been at the detective branch at Witbank.
He
accompanied the Plaintiff to work, especially when she worked after
hours or during weekends. Whatever the propriety may
be of
family members accompanying a detective to his or her offices, the
fact of the matter is that this fact was known to Ferreira.
He
acknowledged this during evidence.
[46]
This
issue goes further than just the presence of Van Loggerenberg at the
detective branch. Ferreira attempted to create the
impression
that the office where he and his three colleagues worked was
generally locked. However, he conceded that the office
was
often left open. This was confirmed by Warrant Officer Dumeleni
who also testified in the matter. In fact, from
his evidence,
it would appear that the office was generally left open and that
there wasn’t always someone in the office.
[47]
It
is clear from the facts that Van Loggerenberg would, in fact, have
had access to the office and could have removed the docket.
These are extremely important facts which the prosecutor should have
been made aware of.
[48]
Despite
the criticism that can be levelled against the plaintiff’s
evidence, this criticism relates to her reaction to her
prosecution
and this litigation. She otherwise appears as a person who takes her
police work very seriously. Her character and
years of service in the
SAPS make it extremely unlikely that she would have been involved in
the theft and sale of a case docket.
Ferreira should have factored
this into his thinking. It would have opened up his mind to all the
exculpatory facts of the case.
[49]
Also,
the manner in which Ferreira deals with the fingerprint reports in
the statement to the prosecuting authorities is most unfortunate.
The fingerprint reports which were returned by Warrant Officer Luus,
who also testified in court, was to the effect that
Van Loggerenberg’s
fingerprints were positively identified
on the docket and that, in respect of the plaintiff, her fingerprints
can be excluded from
those found on the docket.
[50]
During
her evidence, Luus was also very clear in stating that absolutely no
inference can be drawn from any of the fingerprints
lifted from the
docket as far as plaintiff is concerned.
[51]
Luus
did, however, confirm a conversation which she had with Ferreira
after she had done her analysis. She confirmed that
she
informed Ferreira that three points of similarity had been found with
one of the small fingers of the Plaintiff.
[52]
Apart
from the fact that Luus had trouble distinguishing between very basic
concepts, such as “probabilities”, “certainties”
and terminology such as “beyond reasonable doubt”, she
did confirm that no inferences can be made against plaintiff
from her
evidence.
[53]
Ferreira
was quite assertive in respect of the fingerprint evidence in his
statement to the prosecuting authorities. He stated
the fact
that there were three points of similarity found on the docket which
accords with the one small finger of the plaintiff.
But Luus said
nothing of this in her report, she only mentioned this in an informal
discussion. She made it clear in her evidence
that no inference can
be drawn from these observations.
[54]
It
is well-known that seven points of similarity are needed in our
criminal law to make any finding beyond reasonable doubt.
The
problem in this matter is what fingerprint analysis showing less than
seven similarities can be used to form a reasonable suspicion.
[55]
To
some extent one must rely on one’s own experience of expert
evidence in this regard. It is not only the similarity
between
fingerprints that is relevant. Unexplained differences are also
relevant. In addition, it is not a simple exponential
numerical
calculation to be made to assess how much more probable four points
of similarity is as opposed to three points of similarity.
[56]
Fingerprint
analysis is often described as an art and is most certainly a science
where experience is essential. It is the
spatial relationship
between the friction ridges, the shape of the curves and their
intersections that must be given a qualitative
evaluation. Even in
this day and age of automated biometric recognition, forensic
fingerprint analysis is done by experts, not
computers.
[57]
I
am mindful of the fact that no expert evidence in regard to the
theory of fingerprint analysis was presented in this matter. Luus
was
very unclear on these aspects. However, what is clear in this matter
is that the report of Luus was to the effect that the
fingerprints
were described as “nie identies gevind”. Luus was
unfortunately very unclear about what these words
mean. She
confirmed that she was not satisfied with the wording used in the pro
forma documents of the SAPS. From her
evidence as a whole, I
gather that she testified that plaintiff’s fingerprints must be
considered as excluded rather than
regarding the analysis as only
inconclusive.
[58]
In
any event, it may be that Ferreira’s statement in this regard
had no real influence on the prosecutor making the decision.
To
some extent, it must be accepted that the prosecutor would be
acquainted with the general principles to be applied in respect
of
fingerprint analysis.
[59]
What
is important is that the manner in which the evidence is presented is
evidence of Ferreira’s approach to the matter.
He
certainly tried to give every bit of evidence a slant prejudicial to
the plaintiff.
[60]
The
manner in which the prosecution and Ferreira dealt with
Van Loggerenberg as a state witness is also telling.
Ferreira
was instrumental in getting Van Loggerenberg to break ranks
with his co accused and to become a state witness.
[61]
I
believe the probabilities strongly favour a finding that Ferreira was
actuated by malice against the plaintiff in this regard.
The
State had a solid case against Van Loggerenberg. There was simply no
way in which he could explain away his fingerprints on
the docket.
[2]
[62]
Van
Loggerenberg obviously had more than sufficient incentive to lie and
to become a
section 204
witness. As it would appear to have
turned out, Van Loggerenberg was a disastrous witness. This led
to the ultimate
demise of the State’s case as acknowledged by
Ferreira. At the time of the trial, plaintiff and Van Loggerenberg
were no
longer married.
[63]
The
fact that Van Loggerenberg’s statement implicates the plaintiff
also does not assist the defendants. Apart from
the fact that
the content of his evidence should have been viewed with suspicion,
his
section 204
statement was only obtained many years after the
prosecution had been initiated. It could, therefore, not have
formed the
basis of any reasonable suspicion at the time when the
prosecution was initiated.
[64]
What
I find most unacceptable in Ferreira’s A47 statement is the
impression that he tries to create that De Fortier was phoned
by some
unknown person from Witbank police station on 31 December. When
paragraphs 9 and 10 of the statement are read together,
it would
appear that Ferreira is trying to convey to the reader that he only
made the calls from the police station between 15:04
and 15:34, but
not the one at 14:45. This impression which he attempts to create in
his statement is not just misleading, it is
downright false. From the
chronology of events it is highly unlikely that the person who stole
the docket did so in the afternoon
of the 31
st
of December. The first call was made 19 minutes before the second. It
is highly probable that Ferreira also made the first one.
[65]
As
a result, I have come to the conclusion that Ferreira, at some point
during the investigation, lost his objectivity and failed
to act with
the professionalism required of a police official. Such
objectivity and professionalism are central to the actions
of members
of the police force.
[66]
I
further find that Ferreira’s work was more than just sloppy.
In fact, it was quite meticulous. Unfortunately,
much of the
meticulousness was maliciously aimed at creating a case against the
plaintiff.
[67]
His
presentation of the case to the prosecutors was not fair and honest
in all respects. He clearly wanted to sway the prosecutors
in favour
of a prosecution and he did so by including misleading statements in
the A47 statement. His actions therefore fall within
the requirements
of having set the law in motion as described in the
Prinsloo
v Newman
-case
(
supra
)
[3]
,
and also as having been motivated by malice.
[68]
Had
the facts also been fairly assessed, it would have been apparent that
the plaintiff’s lack of co-operation had nothing
to do with a
fear of being exposed, but rather with the animosity between her and
Ferreira. Her actions in releasing Malan qualify
even less as
suspicious behaviour. There is nothing that links her with the
probable theft by Van Loggerenberg of the docket. It
is simply a
vague suspicion based on her personal relationship with Van
Loggerenberg and Malan, coupled with the access that she
had as a
detective. Considering the facts of this case, which were known to
Ferreira at the time, this does not constitute probable
cause.
[69]
It
is common cause that the prosecution ultimately failed.
[70]
Vicarious
liability of the first defendant follows naturally from these facts.
[71]
As
a result, the Plaintiff’s claim should be upheld and I
therefore make the following order:
1.
It
is declared that the defendants are liable to compensate the
plaintiff for the malicious prosecution of plaintiff under case
docket number CAS 1028/12/1999 (Witbank), Magistrate’s Court
Case No SHG 114/09.
2.
Defendants
are to pay Plaintiff’s legal costs, jointly and severally, in
respect of the separated hearing regarding the merits.
3.
The
remaining issues concerning quantum of damages are postponed
sine
die
for later determination.
____________________
C
R JANSEN AJ
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
Heard
on
:
23 and 24 August 2016; 28 November to 1 December 2016
Date
of judgment
:
20 April 2017
Counsel
for the Plaintiff:
CP
Wesley
Counsel
for the Defendants:
A
Thompson
[1]
See
Prinsloo and another v Newman
1975 (1) SA 481
(A) at
491H,
Minister for Justice and Constitutional Development v
Moleko
[2008] 3 All SA 47
(SCA) at para [8];
Rudolph and
Others v Minister of Safety and Security and Another
2009 (5) SA
94
(SCA) at paras [16] to [18].
[2]
At the time of the trial, Hennie van Loggerenberg had undergone
gender re-assignment and is then referred to in the record as
Jeanin-Lee Xena van Loggerenberg.
[3]
ftn 1 above, at p492 A-H and p495 A.