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[2016] ZAECBHC 5
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Moyakhe v Minister of Police of the Government of South Africa and Others (597/2010) [2016] ZAECBHC 5 (28 April 2016)
IN THE H
IGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 597/2010
Heard on: 17 November
2015
Delivered on: 28 April
2016
In
the matter between:
LUBAMBO
MOYAKHE
Plaintiff
And
MINISTER
OF POLICE OF THE GOVERNMENT
OF
SOUTH AFRICA
First
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Defendant
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third
Defendant
JUDGMENT
MAKAULA
J
:
[1]
The plaintiff issued summons against the defendants for a claim of
unlawful arrest and detention
and malicious prosecution. On 4
August 2014 the plaintiff withdrew the claim for unlawful arrest
tendering the costs incurred
by the defendants. The matter
proceeded before me in respect of malicious prosecution.
[2]
The plaintiff alleges in his particulars of claim that he was
arrested on 5 July 2009 and appeared
in court on 8 July 2009.
The relevant paragraph reads:
“
upon
appearing before the magistrate for the first time, the said police
(officer(s) acting in concert with the prosecutor at the
time
proceeded to unlawfully, wrongfully and without any justifiable
and/or probable cause, oppose the granting of bail in respect
of
plaintiff as a consequence of which plaintiff was unlawfully detained
until 2 July 2010 when charges were withdrawn against
(359 nights),
due to insufficient evidence.”
(sic)
[3]
The defendants denied that the plaintiff was maliciously prosecuted.
[4]
The parties agreed in the Rule 37 minute and sought an order before
me that the issue of liability
be determined separately from the
issue of quantum in terms of Uniform Rule 33(4). I granted the
order.
[5]
The plaintiff testified that he was arrested on 5 July 2009 on the
allegations of rape and murder
(the offences)
. The
police officer who arrested him referred to him as Lubabalo.
The plaintiff showed him his identity document and
told him that he
was Lubambo and not Lubabalo. Initially the investigating
officer told him that he was arresting him for
rape and assault of
Nomthandazo Tikolo
(the deceased).
He ordered him to
take off the clothes he was wearing and detained him. The
plaintiff covered himself with a blanket.
After a while, the
investigating officer came back to the police cells and informed the
plaintiff that the charge he was facing
was no longer assault but
murder.
[6]
The following morning the investigating officer fetched him from the
police cells. He took
him to his home. The investigating
officer took from the plaintiff’s home a ‘hood’, 2
jackets and a pair
of jean. On the third day, he was charged
and taken to court. A day after the plaintiff’s
appearance in court,
the plaintiff was taken to a clinic where blood
samples were taken from him.
[7]
Subsequent to that, the plaintiff applied for bail. Bail was
refused by the magistrate.
The plaintiff appeared in court on
regular basis. Various reasons would be advanced for the
continued postponement of his
case ranging from that the court was
waiting for his blood results, the docket was missing, the court was
awaiting the decision
of the Director of Public Prosecutions etc.
The case against him was eventually withdrawn on 2 July 2010.
[8]
The plaintiff testified that it was apparent that his arrest had no
legal or factual basis.
The plaintiff testified further that at
the time of his arrest, he was the Secretary of South African
National Civic Organisation
(SANCO),
a Deacon in his church in
charge of youth affairs and also a member of a School Governing Body
(SGB).
[9]
Under cross-examination, the plaintiff stated that he heard that the
deceased, before her death,
had made a written statement which
implicated him. Plaintiff further heard that a certain Tikolo
who implicated him in the
commission of the offences died subsequent
to the plaintiff’s arrest.
[10]
The plaintiff confirmed that Unathi Delihlazo’s statement
corroborated the statement submitted by the
deceased which implicated
him.
[11]
The plaintiff conceded under cross-examination that his arrest was
lawful but at the same time alleging that
it was malicious because
the police officers should have investigated his alibi first before
arresting and refusing that he be
granted bail.
[12]
The plaintiff testified further that when bail was refused, he did
not appeal because his legal aid representative
had advised him that
a fresh bail application would have to be made. It transpired
that no fresh bail application was brought.
[13]
Bulumko Msele testified that he represented the plaintiff during the
time he applied for bail in Dimbaza
magistrates’ court.
The plaintiff was charged with rape and murder. Various reasons
were advanced by the investigating
officer for opposing bail, chief
of which were:
13.1
that the state had a strong case against the plaintiff;
13.2
that there was plaintiff’s jacket which had blood stains.
[14] He
further testified that he advised the plaintiff not to appeal against
the refusal of bail and should await
the DNA results. The case
of the plaintiff was taken over by a colleague in the legal aid
office.
[15] Mr
Sishuba applied for absolution from the instance arguing that the
plaintiff had failed to make out a
prima facie
case in respect
of malicious prosecution.
[16]
Uniform Rule 39(6) provides that a defendant may at the close of the
case for the plaintiff apply for absolution
from the instance.
The test applicable is akin to the test applied in criminal cases in
terms of Section 174 of the Criminal
Procedure Act
[1]
which provides:
“
Accused
may be discharged at close of case for prosecution
174
If, at the close of the case for the
prosecution at any trial, the court is of the opinion that there is
no evidence that the accused
committed the offence referred to in the
charge or any offence of which he may be convicted on the charge, it
may return a verdict
of not guilty.”
[17]
In
Claude
Neon Lights (SA) Ltd v Daniel
[2]
,
Miller AJA said the following about the test for absolution from the
instance:
“
.
. . when absolution from the instance is sought at the close of
plaintiff’s case, the test to be applied is not whether
the
evidence led by the plaintiff establishes what would finally be
required to be established, but whether there is evidence upon
which
a court, applying its mind reasonably to such evidence could or might
(not should, nor ought to) find for the plaintiff (Gascoyne
v Paul
and Hunter,
1917 TPD 170
at page 173; Ruto Flour Mills (Pty) Ltd v
Adelson (2), 1958(4) SA 307 (T).”
[18]
In
Minister
of Safety & Security NO & Another v Schubach
[3]
,
Zondi JA restated the requirements for a successful claim for
malicious prosecution as set out in
Minister
of Justice & Constitutional Development v Moleko
[4]
as follows:
“
(a)
that the defendants set the law in motion (instigated or instituted
the proceedings);
(b)
that the defendants acted without reasonable and probable cause;
(c)
that the defendants acted with malice (or
amino injuriandi
);
and
(d)
that the prosecution has failed. ”
[19]
The requirements in
(a)
and
(d)
above
have been established by the plaintiff. The plaintiff had to
allege and prove that the defendants instituted the proceedings
without reasonable and probable cause as required in
(b)
above. Reasonable and probable cause means an honest belief
founded on reasonable grounds that the institution of proceedings
is
justified. The concept involves both a subjective and an
objective element.
[5]
Similarly in
Beckenstrater
v Rottcher & Theunissen
[6]
,
Schreiner JA said the following:
“
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 subject element
comes
into play and disproves the existence, for the defendant, of
reasonable and probable cause.”
[20] In
the instant matter it has been conceded by the plaintiff that the
defendants had in their possession a
statement from the deceased
which implicated him and also a corroborating statement from one
Unathi Delihlazo. Furthermore,
the plaintiff has admitted that
Tikolo who had since passed away implicated him in the commission of
the offences. Based
on these and other admissions by the
plaintiff, I cannot find that the plaintiff has established
prima
facie
evidence that the defendants acted without reasonable and
probable in preferring the charges against him. On the
admissions,
especially the statements which implicated the plaintiff,
it cannot be said that the defendants were not justified in
instituting
the proceedings.
[21]
Dealing with the requirement that the defendants must have been
actuated by malice as stated in
(c)
above, Wessels JA in
Moaki
v Reckitt & Colman (Africa) Ltd & Another
[7]
said the following:
“
Where
relief is claimed by this
actio
the plaintiff must allege and prove that the defendant intended to
injure (either
dolus directus
or
inderectus
).
Save to the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into
account in fixing the
quantum
or
damages, the motive of the defendant is not of any legal relevance.”
[22] I
agree with this statement and cannot find that the plaintiff has
established a basis upon which a reasonable
person could find that
the defendants were malicious in prosecuting the plaintiff.
[23] I
am unable on the face of the evidence presented by the plaintiff to
find that he has established
prima facie
evidence upon which a
reasonable person could find for him on the malicious prosecution
claim.
Consequently, the
following order shall issue:
(a)
Absolution from the instance is
granted with costs.
M MAKAULA
JUDGE OF THE HIGH
COURT
Appearances
:
Plaintiff:
Adv
Mapoma
instructed by
Messrs
Magqabi Seth Zitha Attorneys
c/o
Sigabi & Associates
5
Arthur Street
KING
WILLIAM’S TOWN
1
st
,
2
nd
& 3
rd
Defendants:
Adv
Sishuba
instructed by
State
Attorney
c/o
Shared Legal Services
32
Alexandra Road
KING
WILLIAM’S TOWN
[1]
Act 51 of 1977
[2]
1976 (4) SA 403
(A) at 409G-H
[3]
[2015] JOL 32615
(SCA) para 11
[4]
[2008] ZASCA 43
;
2008 (3) ALLSA 47
SCA
[5]
Prinsloo
& Another v Newman
1975 (1) SA 481
(A) at 495H
[6]
1955 (1) SA 129(A)
at 136A-B
[7]
1968 (3) SA 98
(A) 104B-C