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[2016] ZAGPPHC 394
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Sithole v Minister of Police and Another (63897/2011) [2016] ZAGPPHC 394 (27 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
63897/2011
DATE:2016/05/27
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
In the matter between:
JOYCE
SITHOLE
PLAINTIFF
and
MINISTER
OF
POLICE
1
st
DEFENDANT
NATIONAL
DIRECTOR
2
nd
DEFENDANT
OF PUBLIC
PROSECUTION
JUDGEMENT
MALI J
[1]
The plaintiff, an unemployed mother of two minor children residing at
Magana Village in Malumelele in the Province of Limpopo
instituted a
claim against the defendants. The claim is for for damages arising
from unlawful arrest and malicious prosecution
respectively. The
plaintiff was arrested on 13 October 2010 and she first appeared in
Court on 14 October 2010. The claim against
the first defendant has
been settled between the parties at R50 000.00
[2]
It is common cause that the plaintiff was arrested on an alleged
charge of theft of money amounting to R430.00. The money was
allegedly stolen at Tinyiko Primary School ("the school").
The said money belonged to one Tintswalo Grace Mashaba. It
was in her
handbag in a classroom at the school.
[3]
The plaintiff was detained at Malamulele Police Station and was
released on 25 October 2010.
[4]
The issue to be determined is whether there was malicious prosecution
and as a result damages sustained.
[5]
In
Minister
of
Justice and
Constitutional
Development
v
Moleko
[2008] 3 All SA
47
(SCA) paragraph 8 it is stated;
"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 (instigated or instituted the proceedings);
(b)
that
the
defendants
acted
without reasonable
and probable
cause;
(c)
that
the defendants
acted
with malice
(or animo
injuriandi);
and
(d)
that
the prosecution
has
failed."
[6]
Reasonable and probable cause has been defined as follows by Hawkins
J in
Hicks
v Faulkener
(8.0.B.D. 171), cited
with approval by Gardiner J in
Waterhouse
v
Shield
1924 CPD
155
AT
162:
"I
should define reasonable and probable cause to be an honest belief in
the guilt of the accused based upon a full conviction,
founded upon
reasonable grounds, of existence of a state of circumstances, which,
assuming them to be true, would reasonably lead
any ordinary prudent
and cautious men, placed in the position of the accused, to the
conclusion that the person charged was probably
guilt of the crime
imputed"
[7]
In
Mthimkhulu
and
Another
v
Minister
of
Law
and
Order
1993(3) SA
432
at
4400,
it was held: 'The deprivation of personal
liberty has consistently been regarded by our courts as a serious
injury.'
[8]
The plaintiff is the only witness who testified. She stated that at
the time of her arrest she was earning a government grant,
which she
still did at the time of the trial. This is because she is suffering
from epileptic fits. She was arrested on 13 October
2010 and appeared
in court on 14 October 2010 when she was remanded in custody until 25
October 2010. The plaintiff further testified
that on her arrival at
the police station she was searched by police officers and no money
was found in her possession. She stated
that she was detained in a
cell with 6 (six) other females. The conditions of the cell were not
good because the cell and the toilets
were dirty. They all slept on
sponge mattresses with dirty blankets. The light in the cell was on
throughout the night, resulting
to the plaintiff's disturbed sleep.
She stated that she did not apply for bail on 14 October 2010, On 25
October 2010 when she
was released she was not told the reasons for
her release. The plaintiff stated that she could not follow the
proceedings and did
not inform the magistrate thereof. According to
her version she stated "
I felt in my heart
not
to ask".
[9]
The plaintiff stated that during the time of her detention she ate
pap and tea for breakfast, for lunch pap and soup and for
dinner pap
and soup for the entire 12 (twelve) days of her detention. The food
was small in quantity and did not provide enough
nutrition. The
plaintiff further testified that she was able to take her medication
as required.
[10]
Under cross examination the plaintiff stated that she did not enter
the classroom at the school despite that the statement
referred to
annexed in the docket as A4 was signed by her.
[11]
The second defendant called Mr Thapelo Mkhuwane, the state prosecutor
("prosecutor"). The prosecutor stated that
on 14 October
2010 he received a docket with the statement of one Tintswalo Grace
Mashaba, the complainant. Amongst other statements
there was an SAP
299 signed by the plaintiff indicating that the money was found on
her. He stated he also looked at the plaintiff's
statement wherein
she did not deny going to the school and that in her statement she
did not state the name of the money lender
known as Mashonisa. He
said that based on the above grounds he found that there was a case
for the plaintiff to answer and then
enrolled the matter for
prosecution.
[12]
The prosecutor premised his reasonable belief on the plaintiff's
statement, wherein she had admitted going to the school together
with
a certain Ms Mashaba. It transpired that the Ms Mashaba, with whom
the plaintiff had a discussion, was one Ms Kate Mabel Mashaba
and not
Ms Tintswalo Mashaba the complainant. In the statement she stated
that subsequent to the meeting with Ms Mabel Mashaba
she went to
Malamulele. She went there to a certain gentleman who is in the
business of money lending, commonly known as Mashonisa.
She borrowed
an amount of R700.00, and Mashonisa made a record of the loan. Ms
Mabel Mashaba in her statement categorically states
that she never
saw the plaintiff entering the classrooms and confirms having a
discussion with her.
[13]
The prosecutor testified that he did not arange bail for the
plaintiff as the Investigating Officer informed him that he suspected
that the plaintiff was mentally disturbed. He then decided that the
plaintiff was a candidate for mental observation, however he
did not
refer her, instead the plaintiff was remanded in police custody for
12 (twelve) days. On 25 October 2010 the Senior Prosecutor
withdrew
the case against the plaintiff.
[14]
Under cross examination the prosecutor conceded that he did not refer
the plaintiff for mental observation as he was only going
to complete
the relevant forms on 25 October 2010. He further conceded that what
he understood to be a confession by the plaintiff
at page
19, SAP 299
was the recording of the plaintiff's own money upon her detention not
the money allegedly stolen.
[15]
The prosecutor further stated that he remanded the plaintiff in
custody for further investigations, specifically to have the
school
children's statements obtained. In fact the prosecutor contradicts
himself as he had earlier stated that he remanded the
plaintiff in
custody for referral to mental observation. In fact in the charge
sheet there is no entry by the presiding officer
pertaining to mental
observation; whilst there is a clear entry that the plaintiff's
rights were explained to her.
[16]
However under cross examination the prosecutor conceded that there is
no investigation diary on the docket proving that the
matter was
remanded for purposes of obtaining statements from the school
children. It appears that the prosecutor had to have the
plaintiff
detained at all costs. I cannot see what else can be so reckless and
malicious more so than the decision of the prosecutor,
a professional
in the execution of his duties in applying the law.
[17]
I now turn to whether the plaintiff has proved the case of malicious
prosecution. As indicated above the prosecutor's reason
to enrol the
matter for prosecution is based on hearsay. The hearsay being the
complainant's statement who categorically stated
that she did not
witness anyone taking her money. She only relied on the information
of the school children.
[18]
One of the reasons the prosecutor stated that he believed that the
plaintiff had a case to answer is because she did not name
the said
Mashonisa. This is rather concerning that the prosecutor saw it
appropriate to base his decision to prosecute on hearsay
pointing to
the nameless children. The saying that
"what's
good
for
the
goose
is
also good
for
the gander"
finds application here.
[19]
There can be no question that the prosecutor was aware of the fact
that when he instituted prosecution and remanded the plaintiff
in
custody, by so doing, the plaintiff would in all probability have had
her freedom violated and her dignity negatively affected.
On the
prosecutor's own version the plaintiff was mentally disturbed, the
prosecutor could have foreseen that subjecting her to
detention she
would have been injured. The second defendant's case is that there
was no intention on the part of the prosecutor
to injure the
plaintiff's integrity because he did not know the plaintiff at all.
My view is that malice cannot always be driven
and or motivated by
the knowledge of the person whom the prejudicial or malicious act is
attended upon.
[20]
Having regard to the above detention of the plaintiff for the alleged
referral for mental observation and or whatever reason
that suited
the prosecutor then was arbitrary and unfair. There was no reason for
her not to be released on 14 October 2010, despite
the prosecutor's
submission that the plaintiff did not ask to be released on bail. The
plaintiff is not a sophisticated person,
and that can be expected
with her undisputed level of education being standard 4 or grade 6.
She is very soft spoken and appears
to be withdrawn. There is no
reasonable man who would have expected her to apply for bail on her
own volition.
[21]
As was found in
Rudolph and Others v Minister of Safety and
Security
and another
2009
(5)
SA
94
(SCA)
page 101 paragraph
20; "in the present matter the second defendant nevertheless
continued to act, reckless as to the possible
consequences of his
conduct. The prosecutor thus acted with
animo
injuriandi."
[22]
Having regard to the above the plaintiff has succeeded to prove the
requirements of malicious prosecution.
QUANTUM
[23]
As regards the quantum for damages, the plaintiff claims an amount of
R150 000.00. Willis J's clarion call to make the quantum
of damages
awarded in unlawful deprivation of liberty cases commensurate with
the importance of the right to liberty was cautiously
followed in
Olgar
v
The
Minister
of
Safety
and
Security
2008
(JDR
15821E)
at para 16, where
the judge held that:
'In
modern South
Africa
a
just
award
for
damages for
wrongful
arrest and
detention should express
the
importance of
the
constitutional
right to individual
freedom,
and
it
should
properly take
into
account
the
facts
of
the case,
the
personal
circumstances of
the
victim,
and
the
nature, extent
and degree
of
the
affront
to
his
dignity
and
his
sense
of
personal worth. These
considerations
should
be
tempered
with
restraint
and
a
proper
regard
to the
value of
money, to avoid the notion of an extravagant distribution of wealth
from what Holmes J called the "horn of the plenty",
at the
expense of the defendant.'
[24]
When determining the quantum of damages to be awarded for unlawful
deprivation of liberty, courts are essentially being asked
to balance
the interests of the litigant and those of the public purse. There is
nothing unusual in courts playing this role. What
is notable,
however, in my opinion, is that courts often lean heavily in favour
of protecting the public purse and thereby fail
to pay sufficient
attention to the constitutional rights of the litigant before court.
This would seem to emanate from the
obiter
dictum
of Holmes J in
Pitt
v Economic Insurance
Co.
Ltd
1957(3)
SA
284
(D) at 287E -
F,
where the
judge, in relation to the assessment of damages, opined:.
'I
have
only
to add
that
the
court
must
take
care
to see
that
its
award
is
fair
to
both
sides
-
it
must
give just
compensation to
the
plaintiff, but
must
not pour
our
largesse
from the horn of plenty
at the
defendant's
expense.'
[25
] In the
Minister of Safety and Security v Tyulu 2009(5) SA 85
(SAC)
at 930 -
F
Bosielo AJA, in my view
correctly, held as follows with regard to assessing quantum:
'It
is
therefore
crucial
that
serious
attempts
be
made
to ensure
that
damages
awarded are commensurate
with the injury
inflicted.
However,
our courts should
be
astute
to
ensure
that
the
awards they
make
for
such
infractions reflect the
importance of
the
right to
personal liberty and the
seriousness with which
any
arbitrary
deprivation
of
personal
liberty
is
viewed
in
our law.
I readily
concede
that
it
is
impossible
to
determine
an
award
of
damages
for
this
kind
of
iniuria
with
any
kind
of
mathematical accuracy.
. . .
The
correct
approach is to
have
regard to
all
the facts of
the
particular
case
and to determine
the quantum
of
damages
on such
facts.'
[26]
As was held in
Minister
of
Safety
and
Security
v
Seymour
2006
(6) SA
320
(SCA)
[2007]
1 ALL
SA
558
paragraph 17 in the assessment of general damages the facts of
the particular case must be looked at as a whole. There the court
dealt with the case of a 63 year old man who had been unlawfully
arrested and detained for five days. He was awarded damages in
the
amount of R500 000 by the trial court, but the award was reduced to
R90 000 on appeal.
[27]
It is trite law that no two cases are always similar since it is
difficult to find a comparable matter that is in all fours
in respect
of the facts. Past decided comparable cases, although often useful,
merely serve as guidelines. The need to adjudicate
each case on its
own particular merits was always present. In the present matter the
plaintiff who was detained for 12 (twelve)
days was afforded the
opportunity to take her medication, despite taking the medication on
almost empty stomach. In Rudolph the
period of detention was one
night and he was sick but was allowed medication The Court considered
an amount of R50 000 appropriate.
It has to be borne in mind that
this award was made in 2009.
[28]
Furthermore
in
casu
the plaintiff could not
attend to her minor children for 12 (twelve) days. She had to endure
the harsh conditions of being incarcerated
for no apparent reason. In
this regard I find that an amount of R170 000 is the appropriate
award.
[29]
In the result judgment is granted in favour of the plaintiff as
follows:
29.1
The first defendant is ordered to pay the plaintiff damages in the
amount of R50 000.
29.2
The second defendant is ordered to pay the plaintiff damages in the
amount of R170 000.
29.3
Interest on each of the above amounts will run at the prescribed rate
as from the date of judgment
29.4
The second defendant is ordered to pay the costs of suit.
________________________
N.P. MALI
JUDGE OF
THE HIGH COURT
Counsel for the
Plaintiff:
Mr
G Muller SC
Instructed
by: Loubser
van der Walt Inc.
Counsel for the
Defendant:
Ms K Ramaimela
Instructed by:
The
State Attorney
Date of Hearing:
29
February 2016
Date of Judgment:
27
May 2016