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[2016] ZAGPPHC 787
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Matukane v National Prosecuting Authority of South Africa (55530/2011) [2016] ZAGPPHC 787 (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
Case
No: 55530/2011
DATE:
26/8/2016
In
the matter between:
SIPHO
MATUKANE
….......
Plaintiff
and
NATIONAL
PROSECUTING AUTHORITY OF
SOUTH
.
AFRICA
Respondent
JUDGMENT
HF
JACOBS, AJ:
[1]
On Friday 24 September 2010 the plaintiff was arrested and detained
at Musina on suspicion of illegal possession of a firearm
and
ammunition. In his possession he had a Lorcin 9mm Parabellum pistol
and ammunition. He also had a licence to possess that firearm.
It was
an old order
"green licence"
issued to him on 15 May
2001. At the time of the plaintiffs arrest a new licensing system for
firearms was being implemented in
South Africa. I will deal in
more detail with the statutory provisions applicable to licence
applications at that time presently.
At this stage it would suffice
to mention that by September 2010 the holder of a firearm in South
Africa had to apply for the renewal
of an old order firearm licence.
On application for the renewal of a licence the new licence could not
be issued immediately by
the Police Service. In terms of the
prevailing legislation an existing licence would be valid provided
that the holder thereof
can produce proof in the form of a document
issued by the SAPS that he or she had applied for renewal of his or
her old order firearm
licence.
[2]
When the plaintiff was arrested he did not present proof of
application for the renewal of his firearm licence.
[3]
The plaintiff was thereafter detained from the time of his arrest on
24 September 2010 until his release on 6 October 2010,
11 days later.
[4]
On Monday 27 September 2010 the plaintiff was brought before the
Magistrate's Court at Musina and charged for the possession
of a
firearm and ammunition without holding a licence, permit or
authorisation in terms of the
Firearms Control Act, 60 of 2000
. The
plaintiff did not apply for bail and remained in custody until his
release 6 October 2010 after Warrant Officer Van Vuuren,
the
designated police officer in terms of the
Firearms Control Act (DPO
),
the previous afternoon at 16h00, made an entry or was instrumental in
the making of an entry in the investigation diary to the
effect that
"he does not see anything wrong on the side of the
plaintiff'.
[5]
The plaintiff later instituted action against the defendant for
payment of R809 000.00 being an amount inclusive of R9 000.00
for
loss of income and R800 000.00 for
contumelia
and related
infringements of his person.
[6]
When the matter was called counsel for the defendant alleged,
inter
alia,
that the plaintiff was not present on the day and that the
matter cannot proceed. The plaintiff's counsel, however, assured me
that
he is ready to proceed with the action and would be in a
position to proceed with the evidence in the absence of the
plaintiff.
[7]
The plaintiff at some stage (before the hearing commenced) delivered
an amended particulars of claim. The defendant, I was told
by counsel
for the plaintiff, did not bother to amend its plea following the
amendment to the particulars of claim. In the defendant's
plea it
admitted that the plaintiff was arrested and that his arrest was
unlawful. The defendant however denied liability and denied
all the
factual allegations contained in the particulars of claim made in
support of liability of it as Prosecuting Authority.
[8]
What I was unaware of when the plaintiff called his first witness was
that the plaintiff also instituted action against the
South African
Police Service for the unlawful arrest and detention of the
plaintiff. During evidence of Mr Du Plessis, a witness
called by the
plaintiff, and argument, it appeared that the claim of the plaintiff
against the South African Police Service
for his arrest and
detention had been settled between the plaintiff and the South
African Police Service. I will return to this
aspect later in this
judgment.
[9]
The only witness called during the proceedings was Mr Du Plessis,
the State Prosecutor in the employ of the defendant
at Musina
responsible for the keeping of the docket. Mr Du Plessis was not
personally involved in the prosecution or the later
withdrawal of the
charge against the plaintiff.
[10]
After Mr Du Plessis had testified, counsel for the plaintiff applied
from the Bar for a separation of the merits and the quantum
of the
claim in terms of
Rule 33(4).
I granted the application after which
the plaintiff closed his case. The defendant thereupon closed its
case without calling further
evidence.
[11]
It was common cause from the outset as recorded in the
pre-trial
conference that the plaintiff
bears the
onus to prove on a balance
of
probability
its claim
pleaded
in the
form
of
one
based
on
malicious
proceedings.
To succeed
with a claim for malicious prosecution a
claimant
must allege and prove that: (1) the defendant set the law in motion
or stated differently that
it
instigated or
instituted
the
proceedings;
(2) that
the
defendant acted without
reasonable
and probable cause; (3) that the defendant acted with malice or the
required
animus
iniuriandi;
and
(4) that the prosecution eventually failed.
[1]
The plaintiff's cause of action was formulated as follows:
[2]
“
7
“
The
prosecutor, alternatively prosecutors, who were employed
by
the defendant and conducting their duties at or in regard to
the Musina
Magistrate's
Court,
Limpopo
Province,
set the law
in
motion by instituting criminal proceedings against the plaintiff on
a
charge of possession of an unlicensed firearm as from his first
appearance in court and continued the prosecution of the plaintiff
until the Head Control Prosecutor at Musina Magistrate's
Court
declined to continue the prosecution of the plaintiff on or around 11
October
2010
when
the
charge
against
the
plaintiff
was withdrawn
and
the
prosecution
effectively
terminated
in the plaintiff's favour.
8.
The
said prosecutor(s) was/were at all relevant times acting within the
course and scope of their employment as prosecutor(s) with
the
defendant.
9.
The
prosecutor(s) who dealt with the case of the plaintiff and who had,
at all relevant times, had control over and access to the
contents of
the relevant police docket regarding the plaintiff's case and who
dealt with the plaintiff from time to time during
his court
appearances:
9.
1 were aware
that
no
objectively
reasonable
grounds
or justification existed
for
the
prosecution
of
the
plaintiff, alternatively
they failed
in
his/her/their
duty to
acquaint
himself/herself/themselves with the contents of the relevant police
investigation docket from which it would have been
obvious that there
were no objectively reasonable grounds or justification
for
the prosecution of the plaintiff and
the continued
detention of the
plaintiff,·
9.2
did not act with an honest belief, founded on reasonable
grounds,
that the institution
of the
criminal
proceedings against the plaintiff
was
justified;
9.3
accordingly, did not subjectively have an honest belief in
the guilt
of
the
plaintiff
and
his/her/their
conduct
was
not objectively reasonable, as would have
been exercised by
a
person(s) using ordinary care and
prudence;
9.4
accordingly further, failed to take such reasonable measures
as could be expected of someone in his/her/their position
to
inform himself/herself/themselves fully with the facts of the case
against the plaintiff and whether those facts
provided
reasonable and probable cause
for
the
plaintiffs prosecution;
9.5
therefore acted without reasonable and probable cause
for
the plaintiff's
prosecution;
9.6
failed in his/her/their duty to timeously withdraw the charge
against the plaintiff;
9.7
failed in his/her/their duty to inform the presiding
officer(s) timeously that there was no objectively
reasonable justification
for
the
plaintiff's
continued
prosecution
and detention
for
the
alleged
offence
of
possession
of an unlicensed
firearm;
9.8
in
any
event,
failed
in
his/her/their
duty
to
ascertain independently
that no objectively reasonable
grounds or justification existed
for
the
continued
detention
of the
plaintiff;
9.9
failed to take steps to ensure that the plaintiff was
released from detention as soon as
possible.
10.
At
all material times, the said prosecutor(s) acted with animus
injuriandi. He/she/they intentionally directed his/her/their will
to
prosecuting the plaintiff in the awareness that reasonable grounds
for the prosecution were absent and that his/her/their conduct
was
wrongful. He/she/they was/were fully aware that, by prosecuting the
plaintiff, he would in all probability be injured in his
corpus and
dignitas.
11.
Alternatively,
the said prosecutor(s) had foreseen the reasonable
possibility
that he/she/they was/were wrongfully and
that
his/her/their conduct could reasonably possibly injure the
plaintiff
in
his corpus and dignitas.
He/she/they however
reconciled
himself/herself/themselves with that possibility and nevertheless
continued to act, regardless of the consequences of
his/her/their
conduct, namely the reasonable
possibility that their conduct could
injure the plaintiff as
aforesaid.
11.1
The reasonable possibility that the plaintiff could be injured
as
aforesaid by the conduct of the said prosecutor(s) was
not too
remotely removed for delictual liability to be
attracted
on the part of the
defendant.
12.
The
reasonable person in the position of the said prosecutor(s) -
12.1
would foresee the reasonable possibility of
his/her/their
conduct injuring the plaintiff in his
person or property and
causing him patrimonial loss;
and
12.2
would take reasonable steps to guard against
such
occurrence;
and
12.3
the prosecutor(s) failed to take such
steps.
13.
There
existed no valid reason why the said prosecutor(s) would
or
could not have taken such reasonable steps."
[12]
When the plaintiff was brought before Court on 27 September 2010 and
charged as mentioned earlier he could not produce proof
that he made
application for renewal of his old order licence. During
cross-examination of Mr Du Plessis it was suggested by counsel
for
the plaintiff that the defendant (and its staff) must have had
knowledge of a judgment of the High Court declaring old order
licences as valid pending applications for renewal of those licences.
It was suggested by counsel for the plaintiff that on authority
of
that judgment the old order licence remained valid even in the
absence of proof of an application for renewal of that licence
and
that the defendant's staff should have been aware thereof and should
not have prosecuted the plaintiff. I requested counsel
for the
parties to supply me with a copy of the judgment referred to.
[13]
The Prosecuting Authority in South Africa is a statutory
institution
provided for
in Chapter
8 of the
Constitution
of the
Republic of
South Africa, 1996. Section 179 of the Constitution affords the
Prosecuting Authority with the power and authority to
institute
criminal proceedings on behalf of the State and to carry out any
necessary functions
incidental
to instituting criminal proceedings and provides for promulgation of
national legislation
to ensure
that the Prosecuting Authority exercises its functions without fear,
favour
or
prejudice.
[3]
The
National
Prosecuting
Authority
Act
32 of
1998 was
promulgated to give effect to section 179 of the Constitution.
Our
Courts have
recognised the professional independence of the staff of the
National
Prosecuting
Authority.
[4]
[14]
On the authorities cited it is clear that the National Prosecuting
Authority, regionally represented in terms of applicable
legislation,
is obliged to exercise its functions without fear, favour or
prejudice. When the defendant's staff were faced with
the information
that the plaintiff was arrested as aforesaid and unable to prove that
he had applied for the renewal of his 2001
firearm licence his
possession of the licence was
prima facie
in contravention of
the
Firearms Control Act, 60 of 2000
and more in particular
section
24
thereof. Under the circumstances the South African Police Service
was entitled to detain the plaintiff until he was brought to Court
on
Monday 27 September 2010. There was
prima facie
evidence
available to the prosecutor at the Musina Magistrate's Court to
prosecute the plaintiff on 27 September 2010 which the
defendant's
staff did. The plaintiff was at liberty to produce proof of his
application for renewal of his firearm licence and
to apply for bail
on the 2th of September 2010. He chose not to do so. The plaintiff, I
was told from the Bar, is at present serving
a prison sentence in the
Pretoria Central Prison and his attorney has been unsuccessful in
applying for his requisition to Court.
[15]
In my view the plaintiff's prosecution on 27 September 2010 was not
unlawful and in the absence of an explanation by the plaintiff
why he
failed to apply for his release on bail at the time and to explain
the reasons for his failure to produce proof of an application
for
the renewal of his licence constitute a fatal hiates in the
plaintiff's case.
[16]
For the plaintiff to succeed with a claim based on malicious
proceedings or malicious prosecution requires proof of the absence
of
reasonable and probable cause on the part of the defendant, the onus
of which the plaintiff attracted with the formulation of
its
particulars of claim. The plaintiff also failed to prove any
animus
iniuriandi
on the part of the defendant.
[17]
In my view the plaintiff failed to lead evidence that establishes a
claim for malicious prosecution.
ORDER:
The
defendant is absolved from the instance with costs.
___________________
H
F JACOBS
Date:
26 August 2016
MATUKANE
V NATIONAL PROSECUTING AUTHORITY OF SA_JUOGMENT
[1]
Minister of Justice & Constitutional Development & Others v
Moleko
2009 (2) SACR 585
(SCA); Minister of Safety & Security
N.O. v Schubach
[2014] ZASCA 216
; Rudolph & Others v Minister of
Safety and Security 2009 (5) SA 94 (SCA).
[2]
Plaintiffs amended particulars of claim pp 18-22 of the pleadings
bundle.
[3]
Sections 179(1) - (4) of the Constitution.
[4]
S v Yengeni
[2005] ZAGPHC 117
;
2006 (1) SACR 405
(T); Moussa v S & Another
[2015] 2
All SA 565
SCA; Pikoli v President of the Republic of South Africa &
Others
2010 (1) SA 400
GMP; Democratic Alliance v President of the
Republic of South Africa & Others
2012 (1) SA 417
(SCA);
Democratic Alliance v President of the Republic of South Africa &
Others
2013 (1) SA 248
(CC).