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[2016] ZAGPPHC 831
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Mahlakoane v Minister for Safety and Security and Others (A628/2012) [2016] ZAGPPHC 831 (8 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A628/2012
DATE:
8/9/2016
In
the matter between:
MAHLAKOANE
.
FANNIE
.
PATRICK
.................................................................
APPELLANT
And
MINISTER
.
FOR
.
SAFETY&
SECURITY
............................................
FIRST
RESPONDENT
INSPECTOR
CT
MASHEGO
........................................................
SECOND
RESPONDENT
INSPECTOR
.
SEKATANE
.................................................................
THIRD
.
RESPONDENT
APPEAL
JUDGMENT
RAULINGA
J.
Introduction
[1]
The appellant appeals against the part of the judgment and order of
the Court a quo of the 9 December 2011, leave having been
granted by
the Court a quo.
[2]
In his combined summons the appellant claimed damages for unlawful
arrest and detention, malicious prosecution and unlawful
search
without a warrant. Appellant also submitted that the respondents
should pay costs of the trial on a scale as between attorney
and
client.
[3]
At trial, parties agreed to separate merits from quantum in terms of
Rule 33.4 of the Rules of this Court.
[4]
The Respondents bore the duty to begin and the onus of proving the
lawfulness of the arrest and the search of appellant's house
and
premises on a balance of probabilities and that the appellant in turn
bore the onus (if
prima facie
case would have been made by the
respondents) to prove that he is entitled to succeed on the merits.
[5]
In its judgment the Court a quo made the following order:
"1.
That the plaintiff's claim on unlawful arrest be and is hereby
dismissed.
2.
That the plaintiff's claim for unlawful detention be and is hereby
upheld.
3.
That the plaintiff's claim for malicious prosecution be and is hereby
dismissed.
4.
That each party to pay its own costs"
CONDONATION
[6]
When the matter was called, the appellant prayed that he be granted
condonation for the late filing of his practice note and
heads of
argument and extending the time periods accordingly for missing the
filing date by four days.
[7]
The delay was occasioned by the untimely death of the previous
attorney of the appellant.
[8]
The application was not opposed by the respondents and we accordingly
granted same.
FACTUAL
BACKGROUND
[9]
On 1O November 2004 the appellant was subjected to a search on his
house, arrest and detention without a warrant in respect
of an
alleged offence of buying and receiving stolen goods from one Obed
Kukuku Khoza ("Khoza"). After search at his
home, he was
charged and detained at the Acornhoek police station by inspector
Mashego, second respondent for a different and more
serious offence
of house-breaking and theft.
[10]
No stolen goods were found by the second respondent in the search he
conducted on appellant's house.
[11]
It is common cause between the parties that the charges of
house-breaking and theft against the appellant were ultimately
withdrawn on 25 February 2005 when the appellant was freed.
[12]
In his testimony, the second respondent conceded that there was no
factual basis for him to arrest, charge and detain the appellant
for
the offence of house-breaking and theft. The second respondent in
cross-examination also conceded that Mr. Mahlakoane's arrest
and
detention were unfair and not lawful.
ARGUMENT
BY THE PARTIES
[13]
The appellant submits that it was common cause before the
Court
a
quo
that the evidence and version of the respondent's witness
before the
Court
a
quo
was in direct conflict with and
completely contradicted the version of the respondents as was
asserted to and set out in the relevant
statement attached to the
pre-trial minute of 9 December 2010. Furthermore, that it is common
cause that under cross- examination
the second respondent conceded
that his arrest and detention of the appellant 'were unfair and
unlawful.'
[14]
It is also the submission of the appellant that, it is trite that
every allegation of fact in the appellant's combined summons
which is
not stated in the respondents' plea to be denied or to be admitted,
had to be deemed admitted, and if any explanation
or qualification of
any denial is necessary, it had to be stated in the respondents'
plea.
[15]
Insofar as it concerns malicious prosecution, the appellant submits
that the sentiments and findings of the
Court
a
quo
are
materially flawed and not supported by the evidence which served
before the Court and the law. Furthermore it was argued that
Court
a
quo
misconstrued the meaning and application of the
requirements of instigating or instituting proceedings and that of
malice for purposes
of proving a claim for malicious prosecution.
[16]
On the issue of costs the appellant submits that the
Court
a
quo
did not properly direct itself on such facts and the law
and consequently failed to judicially exercise its discretion on the
issue
of costs and the scale thereof.
[17]
It is therefore the contention of the appellant that based on these
submissions the
Court
a
quo
ought to have found in
favour.
[18]
On the other hand, the respondents submit that, once the
jurisdictional facts for an arrest in terms of any of the paragraphs
of section 40(1) are present, discretion arises. In the instant case,
the second respondent acted lawfully when he arrested the
appellant.
Further, that, where a matter is left to the discretion of a public
officer or where his/her discretion has been
bona
fide
exercised or his judgment
bona fide
expressed, the Court
would not interfere with the result. The Court can only interfere in
circumstances in which a public officer
acted ma/a
fide
or
from ulterior improper motives, if he had not applied his mind to the
matter or exercised his discretion at all, or if he had
disregarded
the express provision of a statute.
[19]
Regarding the issue
malice,
the respondents submit that the
second respondent was not actuated by an indirect or improper motive.
Instead he had a reasonable
or probable cause for instituting the
proceedings when he charged the appellant with house breaking and
theft. This was despite
the fact that the second respondent knew that
according to Khoza, he (Khoza) was the one who committed the offence
of house breaking
and theft.
[20]
Insofar as concerns the costs, the respondents submit that the
appellant was unsuccessful in his claims against the respondents
and
his success was only limited to the further detention beyond 48 hours
within which the appellant should have appeared before
Court.
[21]
It is on this basis that the respondents are of the view that the
Court a quo
didn't err in its findings and the order.
JURISDICTIONAL
FACTS
[22]
In terms of section 40(1 )(a) of the Criminal Procedure Act 51 of
1977 ("the Act'), a peace officer is granted authority
to arrest
without warrant a person who commits or attempts to commit a crime in
his presence. Such authority is limited to crimes
already completed
and attempts to commit crimes. Accordingly, the mere intention to
commit a crime, or actions which, although
suspicious, do not amount
to such an attempt, are not sufficient for an arrest in terms of
section 40(1 )(a) (see, Du Toit et al
- Commentary on the Criminal
Procedure Act [Service 55, 2015] 5-9).
[23]
The jurisdictional facts necessary for an arrest under section 40(1)
(b)
are the following:
(i)
The arrestor must be a peace officer,
(ii)
He must entertain a suspicion.
(iii)
It must be a suspicion that the arrestee committed an offence
referred to in Schedule 1 to the Act (other than one particular
offence).
(iv)
That suspicion must rest on reasonable grounds.
Duncan
v Minister of Law and Order 1986(2) SA 805 AD
at 818 G - H. See
also
Sekhoto
2011 (1) SACR 315
(SCA) at 320 h
-
321 a.
UNLAWFUL
ARREST AND DETENTION
[24]
I deal with both unlawful arrest and detention conscious of the
outcome arrived at by the
Court
a
quo
when it ordered
that the appellant was entitled to relief only insofar as his
detention beyond the 48 hours was concerned. In my
view, this did not
cover the period from the date of his detention up to the time the 48
hours expired.
[25]
In this respect the appellant submits that the
Court
a
quo
erred by holding that the respondents have discharged the
onus
of proving that the plaintiff's arrest and detention was lawful
in terms of section 40(1) (b).That accordingly the
Court
a
quo
misconstrued the law regarding the concept of
animus
injuriandi
and onus of proof in cases involving unlawful arrest
and detention.
[26]
In
Whittaker v Roos and Bateman, Morant v Roos
and Bateman
1912
AD 92
at 130
-
131,
the Court held per
Solomon J that it is not necessary in order to find that there was an
animus
injuriandi
to prove any ill-will or spite on the
part of the defendants towards the plaintiffs...This
dictum
was
approved in
Minister
of Justice v Hofmeyer 1993(3)
SA
131
AD at 155 I
-
J and 156A,
in which
Hoexter
JA
writing for the full bench held that a
plaintiff in a claim for unlawful arrest and detention was not in law
required to allege
and prove the presence of
animus injuriandi,
an
intention to injure or an awareness of unlawfulness. In fact, as was
further stated in the Whittaker case (supra) at 131 '....
and it is
quite immaterial what the motive was or that the object which the
defendants had in view was a laudable one....' It seems
to me that we
have in the present case, all the requisites which are necessary to
found an action of
injuria.
[27]
One is alive to the fact that the common cause facts which were
presented before the
Court a quo
showed that the reason for
the search and arrest of the appellant on 10 November 2004 was that
he was suspected of having bought
and received stolen goods from the
second respondent's informant, one Khoza. The goods were however not
found in the appellant's
possession or his house. I agree with the
submission of the appellant that there was no evidence at all that
the appellant bought
or received stolen goods. Also, the second
respondent's informant, Khoza did not implicate the appellant in
relation to the offence
of house-breaking and theft. Similarly the
complainant in her written statement which served before the
Court
a quo
which was confirmed by the second respondent in his
evidence did not implicate the appellant in any manner.
[28]
Interestingly, in his evidence, the second respondent admitted that
the offence of buying and receiving stolen goods is different
from
the offence of house-breaking and theft and that he had neither a
factual basis nor justification to charge and detain the
appellant
for either of the offences, but nonetheless decided to charge and
detain the appellant for the latter offence. In fact
as I said, the
second respondent conceded that the detention and arrest of Mr.
Mahlakoane were unfair and not lawful.
[29]
I am therefore with the appellant in his submission that the
Court
a
quo
should have found, in respect of the claim for
unlawful arrest, that the second respondent had conceded that the
arrest was not
lawful, and that in any event had no evidence to
support or to continue to entertain a suspicion that the appellant
had made himself
guilty of the offence of buying and receiving stolen
property and that the fact that the second respondent charged the
appellant
with house breaking and theft was relevant and material to
the question whether the respondents discharged the onus on them of
proving and justifying the basis of the arrest and detention of the
appellant on 10 November 2004.
[30]
Flowing from the fact that the arrest of the appellant was unlawful,
it follows that equally the detention of the appellant
from the 10
November 2004 up to and beyond the expiry of 48 hours is also
unlawful.
SEARCH
WITHOUT A
WARRANT
[31]
I part ways with the appellant in his argument that the
Court
a
quo
ought to have found in his favour that the search was
unlawful, on the basis that the respondents in their plea did not
admit or
deny or confess and avoid the allegations by the appellant
that the search on his house and premises was without a warrant (and
thus unlawful), nor did they state any facts upon which they rely in
respect of the appellant's claim arising from the search.
[32]
Disappointing as it is, that the respondents do not traverse the
issue of the search without a warrant in their heads of argument,
that does not strengthen the case for the appellant at all.
[33]
Section 22 of the CPA provides as follows:
"A
police official may without
a
search warrant search any person
or container or premises for the purpose of seizing any article
referred
to in section 20:
(a)
if the person concerned consents to such search for and
the
seizure of the article in question, or if the person who may consent
to the search of the container or premises consents
to such
search and seizure of the article in question,
or
(b)
if he on reasonable grounds
believes-
(i)
that a search warrant will be issued to him
under paragraph
(a) of section 21(1) if he applies for
such warrant and,
(ii)
that the delay in obtaining such warrant would defeat the object
of the search".
[34]
The evidence tendered by the respondents through the second
respondent during the trial is that, on the 10 November 2004, the
second respondent proceeded to the home of the appellant and found
his sister. At the time the appellant was not present and as
a
consequence he didn't search the premises. The premises were later
visited in the presence of the appellant who granted the second
respondent permission to search, which yielded no positive results.
As gleaned from the record the second respondent stated that
if the
appellant stated:" ... had he refused us permission, we would
not have been in a position to visit the premise".
[35]
It is therefore clear that the appellant consented to the search
without a warrant, which covers the second respondent under
subsection 22(a). Otherwise the second respondent could have been
covered by subsections (b) and (c).
MALICIOUS
PROSECUTION
[36]
The respondents object to the contention of the appellant that the
second respondent acted wrongfully and had been reckless
as to the
possible consequences of his conduct and accordingly acted
animus
injuriandi.
They aver that the second respondent had reasonable
suspicion that the appellant had committed the offence with which he
was charged
on the basis of the information which was at his
disposal. In support of their argument, the respondents refer to the
decision
in
Prinsloo and Another v Newman
1975(1) SA 481
(A) 499 A
-
C
in which it was found that a defendant will
not be liable if there exist, objectively, reasonable grounds for the
prosecution and
he or she, subjectively believed in the plaintiff's
guilt.
[37]
In
Rudolph v Minister of Safety & Security & Another
2009(5) SA 94 (SCA) page 99 para 16,
the Supreme Court of Appeal
("SCA") stated that requirements for successful claims for
malicious prosecutions have most
recently been discussed in
Minister
of Justice & Constitutional Development v
Moleko
[2008] 3
All SA 47
(SCA) at para [8]
as follows:
"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
injuriand
1),
and
(d)That
the prosecution has failed.
[38]
Further, in the
Rudolph
case(supra)
the SCA in the
course of explaining the requirement of malice, as the appellant puts
it, assisted in providing clarity on the meaning
and applications of
the first requirement and in that regard the SCA opined "the
malice"
must be that of the person responsible for
initiating the prosecution against the appellants. In this case, the
appellants were
formally charged with contravening the Gatherings Act
on Saturday 19 July 2003 by members of the SAPS at the Pretoria Moot
Police
Station. It would appear that this is the stage at which the
proceedings were initiated. Although Capt Bekker's police statement
was made only on 18 August 2003, it is safe to assume that the member
of SAPS who charged the appellants did so, on the basis of
the
information furnished to him or her by the arresting officer ..."
[39]
One can safely say that the approach now adopted by the SCA is that,
although the expression
'malice'
in a claim for malicious
prosecution lies under the
actio injuria
rule and that what
has to be proved in this regard is
animus injuriandi.
[40]
In his article, Professor Chuks Okpaluba, Nelson Mandela University -
"Reasonable and Probable Cause in the Law of Malicious
Prosecution - A Review of South African and Commonwealth Decisions",
opines that, it is not every prosecution that is concluded
in favour
of the accused person that necessarily leads to a successful claim
for malicious prosecution. So much depends on the
absence of a
reasonable and probable cause, the defendant in instigating,
initiating or continuing the prosecution.
[41]
It was held in
Newman v Prinsloo
(supra) at 127H that in
wrongful arrest the act of restraining the plaintiff's freedom is
that of the defendant or his agent for
whose action he is vicariously
liable, whereas in malicious arrest the interposition of a judicial
act between the act of the defendant
and apprehension of the
plaintiff makes the restraint of plaintiff's freedom no longer the
act of the defendant but the act of
the law. See also
Relyant
Trading
(Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA)
para
4. On the other hand
Van
Rooyen AJ
in Heyns v Venter
2004(3)
SA
200(T)
at 208 B held that malicious
prosecution consists in the wrongful and intentional assault on the
dignity of a person comprehending
also his or her good name and
privacy. The requirements are that the prosecution be instigated
without reasonable and probable
cause. And with
"malice"
or
animo iniuriandi.
Thompson v Minister of Police
1971(1) SA 371 E
and 373 F-H. See also
Moaki v Reckitt and
Colman (Africa) Ltd 1968(3) SA 98(A) 104 8-C.
[42]
Another important distinguishing factor between reasonable suspicion
to arrest and the requirement of reasonable and probable
cause in the
law of malicious prosecution, is the factor of proof. In malicious
prosecution the burden of proof is on the plaintiff,
.who must show
that all four elements developed by the courts over the years are
present. In an action for wrongful arrest, on
the other hand, the
burden is always on the defendant to justify the arrest and detention
and he/she must prove in defence that
he/she had reasonable suspicion
as grounds to arrest as one of the four statutory jurisdictional
facts in terms of section 40(1)(b)
of the CPA. The four
jurisdictional facts which the defendant must plead were restated by
the SCA in
Minister of Safety
and Security Sekhoto
2011(1) SACR 315 (SCA) para
6.
[43]
Professor Okpalupa (supra) refers to cases in English common law,
which apart from false imprisonment or malicious prosecution
also
deal with a tort of abuse of process. This is distinct from the
"shameful misuse of coercive power or a gross abuse of
power".
Attorney General of Trinidad and Tobago v Ramanoop
2005 2 WLR
132
(PC). But like malicious prosecution, the abuse of process
concerns misuse and abuse of the criminal process. Both of them deal
with the deliberate and malicious use of the officer's position for
ends that are improper and inconsistent with the public duty
entrusted upon the officer - See
Hill v Hamilton
-
Wantworth
Regional Police Services Board
2007 SCC 41
;
2007 3 SCR 129
para 182. Similary,
the same sentiments were expressed in the Australian case of
Zreika
V State of New South Lakes
2011 NSW
667 para 134. In my
view, this is an indication that there are no parallels between our
law and foreign law.
[44]
Having said this, I now revert to
Moleko and Rudolph
(supra).
In
Moleko,
the SCA concluded that the
animus injuriandi
includes not only the intention to
injure,
but also
consciousness of wrongfulness. Further, that the defendant must thus
not only have been aware of what he or she was doing
in instituting
or initiating the prosecution, but must at least have foreseen the
possibility that he or she was acting wrongly,
but nevertheless
continued to act, reckless as to the consequences of his or her
conduct
(
do/us eventualis).
[45]
In arriving at its conclusion in Rudolph (supra) the SCA continued
and said the following:
"19.
The respondent's argument as set out in paragraph 14 above is
misconceived. The 'malice' must be that of the person responsible
for
irritating the prosecution against the appellants. In this case the
appellants were formally charged with contravening the
Gatherings Act
on Saturday 19 July 2003 by members of the SAPS at the Pretoria Moot
Police Station. It would appear that this is
the stage at which the
proceedings were inititated. Although Capt Bekkers' Police statement
was made only on 18 August 2003, it
is safe to assume that the member
of the SAPS who charged the appellant did so on the basis of the
information furnished to him
or her by the arresting officer ... by
no stretch of the imagination could this 'demonstration' be regarded
as a 'gathering' within
the meaning of the Gatherings Act.
20.
In this case, there can be no question that the person who charged
the appellants was aware of the fact that, by so doing the
appellants
would in all probability be 'injured' and their dignity
('comprehending also...[their] good name and privacy') in all
probability negatively affected. Knowing that the 'gathering' in
question comprised only eight persons, the police member concerned
must at the very least have foreseen the possibility that no offence
in terms of the Gatherings Offence Act had been committed
and that in
charging the appellant with a contravention of that Act, he or she
nevertheless continued so to act, reckless as to
the possible
consequences of his or her conduct. In our view, he or she thus acted
animo injuriandi.
This being so, the appellants proved the
requirements of malicious prosecution and their claim in this regard
should have succeeded."
[46].
The appellant correctly submits that in the present matter, the
second respondent's evidence was clearly that the information
he had
was that the appellant bought and received stolen goods from one
Khoza and he had arrested the plaintiff for that reason
or offence.
The second respondent's informat, Khoza and the complainant in her
statement did not implicate the appellant of having
been involved in
the offence of house breaking and theft and the appellant informed
the second respondent that he never bought
or received any stolen
goods from Khoza. Further that, the second respondent concluded that
there was a difference between the
offences of house-breaking and
theft on the one hand and receiving stolen property on the other. To
make matters worse, the second
respondent concluded in his evidence
that the arrest and detention of the appellant by him "were
unfair and not lawful".
[47].
It is my considered view, that it was at that stage when it became
apparent that there was no case against the appellant that
the second
respondent ought to have refrained from arresting, charging and
detained the appellant on the offence of house
breaking and
theft. The appellant was detained until 15 November 2004 when he was
released on bail.
[48].
As a consequence thereof, the
Court a quo
on the basis of the
dictum in
Rudolf,
ought to have found and concluded that the
second respondent acted wrongfully and had been reckless and
accordingly that the second
respondent had acted
animo injuriandi.
Therefore, the
Court
a
quo
erred and materially
misdirected itself both in law and fact in finding and concluding to
the contrary.
COSTS
AND SCALE THEREOF
[49].
To the extent that the appellant has succeeded substantially in the
appeal and the respondents insisted on the opposition
thereof even in
circumstances where they had no leg to stand on, the respondent must
be mulcted with costs.
ORDER
[50].
In the result I make the following order:
1.
The appeal is upheld in part and dismissed in part.
2.
The order of the Court a quo is set aside and replaced by the
following:
2.1
The plaintiff's claim for unlawful arrest and detention is upheld
2.2
The plaintiff's claim for malicious prosecution is upheld.
2.3
The plaintiff's claim for unlawful search is dismissed.
2.4
The first respondent is ordered to pay the costs of the trial and the
appeal (on the attorney and client scale).
____________________
TJ
RAULINGA
JUDGE
OF THE HIGH COURT
I
agree
_____________________
MF
LEGODI
JUDGE
OF THE HIGH COURT
I
agree
_____________________
WCR- PRINSLOO
JUDGE
OF THE HIGH COURT
APPEARANCES
Attorneys
for the Appellant
..........
: Tshishonga
Mundalamo Incorporated
Counsel
for the Appellant
...........
: Adv G
Shokoane SC
Attorney
for the Respondent
.......:
The State
Attorney
Counsel
for the Respondent
.....
: Adv T B Hutamo
Date
of Judgment
.......................
: