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[2016] ZAGPPHC 1103
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Maffa v Minister of Safety and Security and Another (17532/2013) [2016] ZAGPPHC 1103 (1 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 11 to 13 October 2016
Case
number: 17532/2013
Date
of judgment: 1/11/2016
In
the matter between:
JOHANNES
MOLAMO
MAFFA
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY First
Defendant
NATIONAL
PROSECUTING AUTHORITY OF SA
Second Defendant
JUDGMENT
BRENNER
AJ
1.
The case in this matter involves damages claims for unlawful arrest
and detention, and malicious prosecution. In the particulars
of
claim, the plaintiff, (referred to below as Johannes Molamo Maffa
("Maffa")), claimed payment from the defendants,
the
Minister of Safety and Security ("the Minister), and the
National Prosecuting Authority of SA ("the NPA"), of
R150
000.00 for past loss of income, R60 000.00 for legal defence fees,
and the sum of R12 000 000.00 for general damages.
2.
The fons et origo of the claims was the arrest of Maffa on Friday, 9
July 2010, at about 21h00, without warrant, on a suspected
offence of
rape of a then three year old girl, B. T. ("B."). B.
was born on [....] 2007. Her mother was one E.
T., ("E."),
whose mother, T. T., ("T."), was in a romantic relationship
with Maffa. T. and Maffa had been living
together at [1....]
Extension […], Soshanguve, for several years before the
arrest.
3.
In the particulars of claim, reference was made to Maffa's subsequent
arrest and detention, for some ten months, after his bail
in the rape
case had been revoked. This had occurred after E. had preferred a
charge of intimidation against him, after alleging
that Maffa had
come to her home and threatened her, this despite the bail condition
in the rape case that he was to refrain from
contacting E. or B..
4.
Before Court, in this trial, in his opening address, Maffa's Counsel
recorded that Maffa's case for damages was confined to his
arrest and
detention on the rape charge, and for his malicious prosecution
consequent upon this charge.
5.
He recorded that Maffa did not persist in a claim for unlawful arrest
and detention, and prosecution, on the intimidation charge.
Maffa did
not testify in chief on the factual circumstances relating to the
intimidation charge and his subsequent arrest and incarceration.
6.
The Court's attention was drawn to the fact that the original police
docket had gone missing at some stage and that attempts
were made to
reconstruct same and to make the reconstituted docket available to
Maffa's legal team. The original docket was ultimately
located in the
drawer of a police liaison officer shortly before trial and copies
were made available to Maffa's legal team. Both
copies of the
reconstructed docket and the original docket were contained in
bundles in the Court file.
7.
The bundles that were produced at the hearing were handed in on the
agreed premise that the documents would serve as evidence
of what
they purported to be without admission of the veracity of their
contents.
8.
It was common cause that Maffa was arrested without warrant, and that
this had occurred in terms of Section 40(1)(b) of the Criminal
Procedure Act, Number 51 of 1977 ("the CPA"). The first
defendant, being the Minister, accepted the onus of proving the
lawfulness of the arrest.
9.
Testimony was led on behalf of the Minister and the NPA. Warrant
Officer William Simon Ramogajana Sekgothe ("Segkothe")
gave
evidence for the Minister concerning Maffa's arrest in July 2010, and
prosecutor Kgakgamatso Letsholo ("Letsholo")
testified for
the NPA about the ensuing prosecution. Maffa testified on his own
behalf.
10.
The complainant in the rape case, E., did not give evidence. This
because, according to the defendants, her and B.’s whereabouts
were unknown. The Court was asked to admit, as an exception to the
hearsay rule, her statements, in terms of Section 34(1)(a) and
(b) of
the Law of Evidence Amendment Act, 45 of 1988 ("the Evidence
Act"). This section provides for the admission of
hearsay
evidence in civil proceedings, and operates in addition to the
admission of hearsay evidence in civil and criminal matters
under
Section 3 of the Evidence Act. I made a provisional ruling that
reference could be made to these statements but indicated
that I
would make a final ruling in my judgment. During the hearing, all
parties referred to these statements in evidence.
11.
I will traverse the chronology of events in unison with the evidence
advanced at the hearing. It is incumbent on me to traverse
in some
detail the circumstances culminating in Maffa's arrest on 9 July
2010, and thereafter, the events germane to his prosecution
on the
rape charge, until it was struck from the roll on 30 September 2011.
12.
It was averred that the alleged rape of B. occurred on Monday 5 July
2010 at about 08h00. The evidence, however, indicated that
this was
highly improbable and that the alleged offence, if it occurred, took
place at some stage between E.'s departure from home
for hospital at
08h00 on 5 July 2010 and 9 July 2010. By 5 July 2010, Maffa and B.’s
grandmother, T., had been living together
for several years at
[1....] Extension [1…], Soshanguve. At this time, B.’s
mother, E., was living nearby in Extension
[...], Soshanguve, in a
separate home. At all material times hereto, neither T. nor E. was
employed.
13.
On Friday, 9 July 2010, at 15h35, E. made a statement under oath, at
the Akasia police station, in which Maffa was implicated
in the
alleged rape of her daughter. Since its contents are germane to
ensuing events, the operative paragraphs are quoted verbatim
below:
"On
Monday
2010107105
at
about
08h00
I
left
my
baby
B.
at
[1…]
Extension [...],
Soshanguve and taken by an ambulance to
Hospital Dr George Mukhari. When
I came back on Thursday, I
never ever say anything on my
child. On 2010/07/09 at
about
11h00, my
child started
crying
and
I asked what is the problem.
My
child
told me that her grandfather took something and put it inside
her vagina
and now its
paining.
I
took the child to Roslyn Clinic for check-up. They checked my child
and told me I must go to the police to open a case. There
is an
infection. I went to Akasia to open a case. That all I can
state."
(my
emphasis)
14.
At about 17h30 on 9 July 2010, a member of the Akasia police phoned
the Ga Rankuwa Cluster Family Violence Child Protection
Sexual
Offences Unit ("the Unit") and spoke to Sekgothe about the
complaint preferred by E.. Sekgothe, Warrant Officer
Maloka
("Maloka") and Constable Motsa ("Motsa") arrived
at the Akasia police station where Sekgothe read her
statement and
asked her certain questions. Sekgothe and Motsa accompanied her and
B. to the Tshwane Medico-Legal Crisis Centre
where B. was examined at
19h15 by Dr S M Luklozi, who completed a Form J 88 and handed same
over to Sekgothe and Motsa.
15.
Dr Luklozi found no injuries on clinical examination, but observed a
"superficial tear at six
o'clocK'
in the posterior
fourchette. The conclusions were:
"Superficial
tear
posterior
fourchette is consistent
with
penetration
or
a stretching force.
(Vaginal discharge sent for testing microscopy in lab)".
16.
On 9 July 2010 at 21h57 Sekgothe deposed to a statement on the
circumstances of Maffa's arrest. It reads:
"....I
am
the
Investigating officer
in
this
case
of
rape. On
the 09/07/2010 Friday,
at
about 17:30,
I
was
officially
on
standby,
duly
accompanied
by Warrant
Officer
Maloka
and
Constable
Motcha.
We received
a
call
from Akasia police station.
We
attended
that
call
and
signed
for
a
docket
of
rape.
At
later
stage
we took
the
child
of 3 year
old
accompanied
by
her
mother
E. T. at
Tshwane
Medical
Legal Clinic
Centre
for
further
examination matter. After the whole
process,
we deliver the complainant back at home Extension [...]
Ga-Rankuwa/Soshanguve.
On our arrival the complainant point
out the suspect he was very known
to her as s.
Mafa
Mdama Johannes
of 38 years
of age.
We
explained
him
about
that
offence
and
his
right.
We then
arrested
him and
detained.
"
17.
On 10 July 2010 at 14h50, Sekgothe deposed to a further statement,
the operative paragraphs whereof read:
".....I
am the investigating officer in this case. On the 09/07/2010, I
received the case of rape at Akasia police station.
The case was
signed at the computer system. I interview the complainant Miss E. T.
who is the biological mother of the victim B.
T. of 3 years old. The
victim will be taken for assessment.
The
suspect
was
known
as
the
stepfather
of
the
complainant. The complainant alleged that
her child B. told her that the
grandfather touched her
vagina. The
complainant examined the child vagina on the spot
and
it
was having
a
bad
smelling.
The
child
was
complaining
about pains and he took
her to the clinic where the nurses were suspecting about sexual
abuse.
We took the child at the hospital for examination.
On our arrival back
we found the perpetrator at his home and
he was arrested. That is all about my statement."
18.Sekgothe
testified that he had been in the police force for 25 years and in
the above Unit for 10 years. His evidence before
Court was consonant
with the above statements made by him on 9 and 10 July 2010. He said
he read the statement of E., asked her
questions about it, and then
he read the Form J88, (completed at 17h15 on 9 July 2010), and saw a
material consistency between
the complaint in the statement and the
findings in the Form J88. He confirmed that the Form J88 was not
completed in the presence
of any police officer.
19.When
the complainant pointed out Maffa (in the home he shared with T. T.),
as the person whom B. referred to as her grandfather,
and B., while
repeatedly crying, pointed to Maffa as her grandfather, Sekgothe said
he was satisfied that there were reasonable
grounds to arrest Maffa
without a warrant, on suspicion of having committed an offence under
Schedule 1 of the CPA
20.
He testified that it was not his function to interrogate B. about the
complaint, including the date, time and place of the alleged
offence,
because she was only 3 years old and this was best left to a forensic
social worker with the necessary skills. This was
commensurate with
standard police procedure and his experience in the field. He
confirmed that he had handled a lot of cases of
rapes involving minor
children, including three year olds.
21.
Sekgothe confirmed that the pointing out by B. was not recorded in
any police statements. Maffa denied that either E. or B.
pointed him
out. Sekgothe conceded that no enquiry was made of E. about the
person or persons in whose custody she had left B.
and whom she had
failed to identify in her first statement. He said he had
assumed that E. would not leave B. with a strange
person.
22.He
said that he never spoke to T. to obtain her version because he left
this to the investigating officer, Maloka, who had passed
away in
2011 or 2012. He was only involved in this case initially from 9 July
2010 to 12 July 2010, when Maloka took over. On the
night of Maffa's
arrest at the latter's home, Sekgothe said he never saw T. at the
house nor was he introduced to her by Maffa.
Under cross examination,
it was put to Sekgothe that he, Sekgothe, had been in a romantic
relationship with E. T. since 2009, and
that Sekgothe had been seen
in the area driving an Isuzu vehicle. He denied this. It was put to
him that T. had indeed met him
on the night of the arrest and that T.
had told him that Maffa did not rape B. and that B. was with her all
the time. Sekgothe
denied that this took place. It was further
suggested to him that at about midnight on 5 July 2010, a friend of
E.'s, one Baby,
(surname unknown), had brought B. to Maffa and T.'s
home. Sekgothe replied that this was at variance with the version
given to
him by E..
23.
After Maloka's death, the case was assigned to Warrant Officer
Pholoana ("Pholoana"), who had since retired. Sekgothe
confirmed that the police docket appeared to contain no record of any
attempts to contact T., to obtain her version of events.
He said that
he left this to the subsequent investigating officer.
24.
On 10 July 2010, at 11h00, Maffa executed a warning statement. He did
not decline to provide any details. He made certain statements,
namely:
"That
I
am
deny with their allegation against me. At
this
moment
I know
the victim of B. T..
I
am
the boyfriend
of her
grandmother
T.
T..
For
a
period
of
eight years.
We
were residing
together
at the abovementioned premises
([1....] Ext [1...] Soshanguve). On
the
09/07/10
at
about
21h00
I
was
at
the
mentioned place,
and
the
police officer
accompanied by the
mother of B. T. came at the house.
At
later stage
I
was amazed
then that officer
alleged
that I
am
the suspect on the case of rape. I
tried to explain but all in vain.
I have been
arrested and
detained
at
Soshanguve
police
station.
I never
sustained
any
injuries
during the arrest.
I
will explain everything
in the eyes of
the l
aw.
At this stage, I would like for extraction of
blood with the purpose of DNA analysis or result. That is all about
my declaration."
(my
emphasis)
25.
In evidence before this Court, Maffa testified that he had been in a
relationship with T. between 2003 and 2012. They were living
together
in July 2010, while E. lived in Soshanguve about two kilometres away
from their home. He had helped T. to set up a tuck
shop business
which ran from 2004 to 2006, with E. helping her mother. But the
venture was unsuccessful. He testified that E. and
B. had arrived in
Soshanguve from Rustenberg in about 2009, and had lived with them for
about eight months before E. found other
accommodation in Soshanguve.
26.
He said that, between 5 and 9 July 2010, he had been working as a
hawker of World Cup soccer flags, t-shirts, caps, umbrellas,
and
other such goods, in Voortrekker Street, Pretoria. He earned between
R3000,00 and R4 000,00 per day at the time. He had been
a hawker
since 1998. His average income was about R400,00 per day. It
escalated over the World Cup period. He would leave home
at about
07h00 and return at about 19h00. On every one of these dates, he
followed the same routine. The home consisted of three
rooms, a
kitchen and two bedrooms.
27.
At the time, he was not on good terms with E. because he had accused
her of stealing his dvd of kwaito music. He alleged that
T. and E.
fought all the time.
28.
At around midnight on 5 July 2010, while in bed with T., they heard a
knock at the door. A friend of E.'s, one Baby, whose surname
was
unknown, handed B. over to T.. She said the baby was crying and
needed to be with her grandmother. T. took B. to the spare
bedroom
where she slept with B.. Maffa slept on his own. This occurred for
the entire duration of B.’s stay with them, until
8 July 2010.
On 6 July 2010, T. fetched clothes for B. and bathed her as she was
dirty. On his return home on 8 July 2010, T. informed
him that E. had
collected B.. Maffa said that B. did not complain of any pains during
this period.
29.
He said he had a good relationship with B., who called him "papa".
He had never bathed her or changed her nappies.
He was never left
alone with B. during the time of her stay with him and T..
30.According
to Maffa, on the evening of 9 July 2010, Sekgothe, E. and B. arrived
at his home where he was accused of raping B..
He said he invited
Sekgothe to speak to T. in the bedroom. They went to T. who informed
Sekgothe that she had been babysitting
B. all along and that nobody
had raped B., and that she would have seen this if it had occurred.
Sekgothe told her she could inform
the Court about this and proceeded
to handcuff Maffa and place him in an Isuzu vehicle. On the way to
the police station, Maffa
averred that Sekgothe suggested a bribe,
asking Maffa how much money he had.
31.
Although he was not the prosecutor at inception of proceedings,
prosecutor Letsholo guided the Court through the contents of
the
docket contained in the bundles before Court so as to reconstruct the
time line of events.
32.
On Saturday, 10 July 2010, T. and Maffa's brother arrived at the
police station. According to Maffa, T. offered to give her
version to
the police but they refused. Maffa conceded that he did not tell the
Court that T. wanted to make a statement. He said
that T. told his
lawyer that she wanted to do so, but he could not explain why his
lawyer had failed to get her statement. He said
that what she told
them just appeared to "fall on deaf ears."
33.
On Sunday 11 July 2010, Maffa was taken to Soshanguve Hospital for
blood tests. On 12 July 2010, following three days in custody,
he
made his first appearance in the Pretoria Regional Court. The case
was remanded to 19 July 2010, when Maffa successfully applied
for
bail of R1 000,00 and was released. Maffa was legally represented by
one Mr Mogale ("Mogale"). Maffa's brother paid
his bail.
Maffa's bail affidavit dated 19 July 2010 is less enlightening than
the contents of his warning statement. when asked
for his reaction to
the merits of the rape charge, he says:
"/
did not commit the offence alleged.
I request
the
Court to release me on bail because
I need to support my
children.
The
victim in this case stays with her mother in another address.
"
34.
A note in the court file concerning the grant of bail provided that
same was granted on condition that Maffa was not to contact
the State
witnesses B. T. and E. T..
35.
Maffa spent 10 days in detention. Maffa testified that, on 19 July
2010, T. obtained a protection order against E. at the Magistrates
Court based on E.'s false allegations against Maffa, and took it to
the Akasia police station for the police to serve it. He was
unable
to produce documentary evidence of this. After Maffa's release, as he
was going home, he heard a whistle in his suburb and
was told by one
Mrs Mathebula that there was a crowd of people at his home, because
the community had been alerted to the rape
charge against him. When
he arrived at his house, he saw E. with her boyfriend. A window pane
had been broken. He did not stay
at home that night but went to
Rosslyn. He later preferred a charge against E. for malicious damage
to property.
36.
Maffa said that he left T. in about 2012. He was now living about
thirty minutes away from their former home, in lnkandla Junction,
Erasmus. According to Maffa, T. passed away in September 2015.
37.By
9 August 2010, E. and B. had moved to another address, being
Extension [...] B, 16560. At 14h43 on 9 August 2010, she preferred
another charge of intimidation against Maffa. She averred that, on 9
August 2010, at about 02h05, while they were asleep, a person
identifying himself as "Maletisha", knocked on her door.
When she opened it she saw her stepfather, Maffa, in the company
of
the person who had knocked at the door. Maffa demanded his TV, to
which she replied that she knew nothing about it. She reminded
him
that the Magistrate had prohibited him from approaching her. Maffa
replied that he now knew where she was staying and intended
to burn
down her shack, with her in it. B. woke up and began to cry. At about
13h00 the same day, Maffa returned and threatened
her again. E.
stated that the owner of the shack was a security guard who worked
night shifts. She no longer felt safe any more
because Maffa now knew
where she was living.
38.
On 11 August 2010, Maffa was arrested on a charge of intimidation. On
the same day, he signed a warning statement in which he
denied the
charge. He admitted having gone to E. T.'s home to ask her if she
knew anything about his TV which was stolen while
he was in custody.
He does not say when he did this. He denies having gone to her home
on 9 August 2010, nor having communicated
with her. He avers that she
had broken into his home. The material sections of Maffa's statement
are quoted:
"'I
deny the
allegations brought against me. I
state
that I went to
the complainants
place (illegible)
for
to
help
me
to
question
the
complainant about any stolen
TV whilst I
was
no bail.
Upon arriving at her place
I asked her
about the stolen
TV and he said to me that he knew nothing
about it.
On
the 9
th
/08/2010 I have never
went to
the complainants place
and have never
communicated with
her
or
threatened
her
in
any
manner.
This
is (illegible) implications.
She
i
s
the one who
has
broke into my house.
I have
reported
the matter at Akasia police station
GAS
51710712010.'
39.
He appeared on 12 August 2010 in the Pretoria North Court. Following
remands on 19 August 2010, 24 and 30 August 2010, on the
last date,
application was made to cancel Maffa's bail. On 24, 30 and 31 August
2010, lawyer Mogale acted for Maffa. On 31 August
2010, the
application to revoke bail was mechanically recorded. Maffa testified
that he and E. testified at the hearing. On this
date, his bail in
the rape case was revoked, and he was placed in custody pending
trial, and the trial was transferred to the Regional
Court.
40.
On the same day, the intimidation charge was withdrawn by the
Pretoria North Magistrates Court with a note "See A377/10".
The uncontested evidence of Letsholo indicated that the intimidation
charge under case A433/10 was withdrawn so as to add same
to the rape
charge under case A377/10, to be heard in the Regional Court, for
hearing on 6 October 2010.
41.
On 13 September 2010, a report was issued by the forensic science
laboratory of the SAPS summarising its results on the swabs
as
"No
semen
was
detected
on
the swabs....
Therefore no
DNA
comparison
will be carried
out.
"
42.
On 6 October 2010, Maffa requested a postponement to secure legal
aid. The case was remanded to 24 November 2010 when the State
applied
for a postponement to secure the reports of a social worker on a
victim statement and an intermediary. On 16 February 2011,
the case
was remanded for further reports. Advocate Dubazane ("Dubazana")
now acted for Maffa, and appeared for him on
all dates save for 2
September 2011 and 19 September 2011. On 18 March 2011, a further
remand was given for the reports to be filed.
On 13 May 2011, a
further remand for Mnisi's report was given until 13 June 2011.
43.
On 13 May 2011, Gracious Mnisi ("Mnisi") had issued a
report on B.. Mnisi was a forensic social worker employed by
the SAPS
in Krugersdorp, and registered with the SA Council for Social
Services Professions in December 2002. She had a Bachelor
degree in
Social Sciences in Social Work Honours in 2003, majoring as a social
worker. Her report states:
"During
the course of my duties, I assessed B. T., a girl of 04 year old, for
the purpose of section 170A act 51 of 1977.
In
my opinion B. will not be able to testify in court because she is
unable to verbalise the alleged incident in a consistent manner.
Reason
Warrant
officer Pholoane has referred the case of B. to the Social worker, to
determine whether the child concerned will be able
to testify in
court.
During
the assessment the child displayed poor referential communication,
she was unable to verbalise the alleged incident, she
only says that
"ntate moholo u ntshwere mopele ka setlhari." When she says
"mopele" she point her private part
with her hand. But
unable to clarify what is "setlhari" and where is the
"setlhari" or how is the "setlhari"
looks even
when anatomical drawings are used."
Her
verbal description of the alleged sexual incident was very limited
and short with not much detail. She was unable to describe
the
quantity and time of the alleged incident. She also mentioned that
her maternal grandmother was with her during the alleged
incident.
But the maternal grandmother is not cooperative.
Therefore,
the child, B., will not be able to testify in court. She can suffer
undue mental stress if she testifies in court of
law."
44.
On 13 June 2011, the prosecution called for a remand for a further
statement from the complainant and for DNA analysis. Matta
was
granted bail of R500,00. From the bail receipt, it appears that the
bail was paid on 27 June 2011 and he was released. On 2
September
2011, the case was remanded to 19 September 2011.
45.
On 19 September 2011, Letsholo became involved as prosecutor for the
first time. He testified that he was sure that he had the
original
docket on this date. He asked for another remand for the report of
the social worker on the need for an intermediary.
Maffa's Counsel
was absent. The case was postponed to 30 September 2011.
46.
On 30 September 2011, both charges of rape and intimidation were
struck from the roll. This because the police docket had gone
missing
and Dubazana, acting for Maffa, asked for the case to be struck from
the roll. The presiding officer reprimanded Letsholo
about the
missing docket and told him to get his house in order. Maffa
testified that Dubazana was paid a fee of R4 000,00 for
his services.
47.
Hereafter, steps were taken by Letsholo in unison with Pholoana to
reconstruct the docket. By some time in 2013, according to
Lethsolo,
most of the contents of the docket had been sourced. Letsholo
testified that the original docket was ultimately located
in the
drawer of liaison officer Warrant Officer Grabert, shortly before
this trial.
48.
On 9 April 2013, Maffa's civil Summons in this case was served on the
Minister and the NPA.
49.
On 15 May 2013, one year and nine months after the case had been
struck from the roll, E. signed another statement concerning
the rape
charge against Maffa. At the time, her statement revealed that she
lived at [1…]Extension [...] B Soshanguve. This
statement was
taken by officer Pholoana in Temba. Because more material detail was
given in this document, its contents are quoted
verbatim below:
"I
state under oath in Setswana translated into English
that I
am
the biological
mother
to
B. T.
who
is
now
6 years
old
and
attending
school at M. Primary
School Block [...] Soshanguve in Grade
1.
I
further state that on 2010/07/09 I reported
a case
on with my
child. B. T. was sexual abused by my mother's
boyfriend
Johannes
Mafa.
On
2010/07/06 I went to George Mkhari Hospital as I was sick and left
my child B. T. who was 4 yrs old by then with my mother T.
T. who was staying with her boyfriend J. M..
I
was
admitted
at
George
Mkhari
hospital
and
discharged
on
2010/07/08.
As
I
was
renting
a
shack around,
I went
to my mother's place
to collect my child
and
as
it
was
already
late,
my
mother
suggested
that
I left
the
child and
that she will bring her the following
day (2010-07-09)
morning.
The
following
day
on
2010-07-09
around
10h00
my
mother
brought
my child.
The
same day after about an hour the child wanted to urinate and she
could not urinate and complained that she
was
having pains
on her vagina.
When
asking her what happened she told me that
her grandfather, referring to J.
M.. was smearing
her with medicine on her vagina.
I
immediately
took
her
to
the
clinic
at
Rosslyn.
The sister just
look
on
her vagina and referred
her to the police
station,
saying that they cannot check her and that was
a
police
case.
I
went to the police
station
(Akasia) same day
2010-07-09
and
a
case
was opened after
we
were taken to the doctor at Pretoria.
The
police then accompanied us to my mother's place and arrested Johannes
Mafa and took him with them to Akasia police station where
he stayed
for about 3 months."
(my
emphasis)
50.
On 24 May 2013, written representations were made to the NDPP (the
NPA), to reinstate the rape charges. Letsholo was unable
to state
whether the NDPP replied to the letter containing these
representations. By then, the second docket had been reconstructed.
He said he did not recall having seen Mnisi's report when he wrote
the letter to the NDPP. He said he saw this for the first time
prior
to this trial. Outstanding requirements mentioned in this letter
included a statement from B., an intermediary report, results
the
discharge referred to in the Form J88, and DNA results. The fact that
Letsholo did not know of the DNA report or the discharge
results is
attributable to the fact that the reconstructed docket was
incomplete.
51.
On 15 July 2013, a psycho social report was issued by probation
officer EM Masebe ("Masebe"), at the behest of the
Pretoria
North Magistrates Court, to establish the desirability of using an
intermediary in respect of the rape complaint involving
B.. A
conspectus of the report reveals that B. never had any form of
relationship with her biological father, who had denied paternity
of
her. In the result, one may safely assume that B. had no relationship
at all with her biological father's parents. E. began
to reside with
another boyfriend, Thabo Masemene since 2009. They had had a child
together, who was apparently five months old
in June 2013. As at June
2013, they were residing at [1…] Ext [1...] B Soshanguve,
52.
In recommending that B. should testify in Setshwana through an
intermediary, Mnisi made the following comments:
"Although
the incident occurred in 2010 the child could recall what transpired.
She was slightly uncomfortable talking about
the incident. This is
further aggravated by the fact that the accused is often seen in the
neighbourhood.
The
incident created tension within the victim's maternal family because
the accused was her grandmother's boyfriend. Her grandmother
gave him
support initially which suggested to her that she did not trust her
granddaughter. Therefore the accused's presence in
court might be too
intimidating for the victim."
53.
Letsholo testified that he remained satisfied that there was a prima
facie, prosecutable case against Maffa by virtue of the
following,
namely:
a.
The statements of E. T.;
b.
The arresting statements of Sekgothe;
c.
The two incidents involving the alleged rape and intimidation;
d.
The contents of the Form J88, which
were consistent
with the statements of E. T.;
e.
The report of Mnisi;
f.
The report of Masebe concerning intermediation;
g.
The seriousness of the alleged offence.
54.
Letsholo opined that the use by B. of the word "setlhari"
in Mnisi's report could mean either "tree" or
"medicine".
He took cognisance of the potential meaning as being "medicine"
or "muti". He conceded,
however, that E. should have been
asked about who she had left B. with when she went to hospital. He
conceded that the police should
have enquired of Maffa about his
whereabouts between 5 and 8 July 2010. He believed that efforts were
made to obtain the statement
of T. but had no record of this in the
docket. He admitted that it was important to have obtained the
version of T. in July 2010.
He still believed that the case could
proceed but that its pursuit was compromised by the inability to
trace E. and B..
55.0n
21 August 2013, Sekgothe applied for the issue of a Form J175 for the
re-arrest of Maffa. It was not implemented owing to
Maffa's pending
civil action. To date, over six years after the alleged incident, the
charges have not been reinstated. But no
decision has been made not
to prosecute Maffa, this according to Letsholo and Sekgothe.
56.
It appears from the docket that at some stage in January 2016,
efforts were made by Warrant Officer Jacob Maphanga to trace
E. at
her given address, to no avail. He made enquiries around the vicinity
but nobody had any idea of where she had gone. It was
mentioned that
she may have relocated to a new address in Soshanguve Extension 14
but no address was given. He had tried to reach
her telephonically,
to no avail. He deposed to an undated statement to confirm this. One
Tshepiso Malema deposed to a statement
on 31 January 2016 is which
she confirmed lawful ownership of stand [1....] Soshanguve Extension
[1...] She confirmed that she
had bought the property from Mrs Tabane
in 2013. It would appear that this was the property occupied by T.
T.. After this, Malema
said that Mrs T. had moved and she had no
knowledge of her whereabouts.
57.
In Court, Sekgothe testified that he went to the Home Affairs office
and the records centre for Extension [1…] on 8 or
9 October
2016 but made no progress. The address he obtained from Home Affairs
was located on 8 October 2016 but E. was not found.
He did not
consider employing tracing agents. Letsholo confirmed in his evidence
that the SAPS had its own tracing unit, which
was not employed in
this case.
58.
I will proceed with my analysis of the evidence.
59.
In the first instance, I will deal with the status of the statements
given by E. and the facts that she gave no vive voce evidence
at
trial. The defendants relied upon
Section 34(1)(b)
of the
Law of
Evidence Amendment Act 45 of 1988
in applying to Court to introduce
the statements into evidence. I am not satisfied that this section
applies. Under this section,
a statement made by a person and tending
to establish that shall be admissible as evidence of the fact if the
person who made the
statement had personal knowledge of the matters
dealt with
and
such person is dead or mentally or physically
unfit to testify or is outside the Republic of South Africa
and
it
is not reasonably practicable to secure his attendance or all
reasonable efforts have been made to do so without success. There
are
two requirements and the former was not met. It was not suggested by
the defendants that E. was dead or mentally or physically
unfit or
outside of the country. Accordingly, this section does not apply.
60.
Nevertheless, I have resolved to admit the statements into evidence
in terms of
Section 3(1)(c)
of the same Act, (which applies to civil
and criminal proceedings), this in the exercise of my discretion to
admit same interests
of justice.
61.
On a conspectus of the facts, I am satisfied that the seven
requirements for doing so have been fulfilled, namely, the nature
of
the proceedings and evidence, the purpose for which the evidence was
tendered, its probative value, the reason for E.'s absence
from
Court, any prejudice to the value, the reason for E.'s absence from
Court, any prejudice to the plaintiff, Maffa, and any
other factor of
relevance. The nature of the proceedings was civil, with the Minister
bearing the onus to prove the lawfulness
of the arrest. The evidence
was tendered to assist in justifying the cause for Maffa's arrest and
was material to the case. It
bore a relatively high probative value
but it did not prove definitive in relation to my findings. It was
one of several indiciae
in the enquiries into unlawful arrest and
malicious prosecution. The reason for the defendants' inability to
trace E. could potentially
be attributable to her fear of him. This
potential fear is borne out by her statement which confirms that
Maffa had gone to her
home in August 2010, and threatened to burn it
down, and this was credible enough to have been believed by the Court
which revoked
Maffa's bail. The prejudice to Maffa in permitting this
evidence was insignificant. E.'s statements were referred to by his
Counsel
during evidence, and Maffa was present in Court to advance
vive voce evidence to controvert her assertions.
62.
Significantly, in a case involving a claim for damages for unlawful
arrest, that of
Minister
of Safety
and
Security and another v
Linda 2014(2)
SACR 464 GP,
evidence was adduced by the arresting officer, the
plaintiff (arrestee) and a witness for the arrestee. None
of
the State witnesses in the criminal case was called to testify.
63.1
will traverse the legal principles applicable to unlawful arrest and
thereafter, those applicable to malicious prosecution,
in unison with
the proven facts in this case.
64.
The cause of action in the arrest is based on the action iniuriarum,
for which general damages may be claimed. Special damages
may be
claimed under the lex Aquilia. In casu, the arrest occurred under
section 40(1)(b) of the CPA. The onus is on the Minister
to prove the
lawfulness of the arrest. Section 40(1)(b) provides: (b) whom he
reasonably suspects of having committed an offence
referred to in
Schedule 1, other than the offence of escaping from lawful custody."
65.
Schedule 1 to the CPA includes, inter alia:
"Rape,
or compelled rape as contemplated in
sections 3
and
4
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively.
Sexual
assault,
compelled
sexual
assault
or
compelled
self-sexual
assault as contemplated
in
section 5
,
6
or
7
of the Criminal Law etc, respectively."
66.
In
Hiemstra's
Criminal
Procedure
Lexis
Nexi's
Issue
9
at
5
7,
the following is
stated:
"In
Duncan v Minister
of Law and Order
1986 (2) SA 805
(A)
@
818 F-H
the jurisdictional facts which
must exist before the power conferred by
section 40 (1) (b) may
be invoked, were set out as follows (1) the
arrestee
must be
a
peace officer,
(2) the peace
officer must entertain
a
suspicion,
(3) it
must
be
a
suspicion
that
the
arrestee
committed
a
Schedule 1 offence
(other than
escaping) and (4) that suspicion must rest on reasonable grounds.
67.
There is no fifth jurisdictional requirement for the arresting
officer to consider whether there are less invasive options to
bring
the suspect before Court. Vide
Minister of Safety
and Security
v Sekhoto and Another
2011
(1
)
SACP 315
(SCA)
par 22
,
where the
SCA overruled the finding that such requirement existed in
Louw
and
Another
v
Minister
of
Safety and Security and Others
2006 (2)
SACP 178
T at
186a-1
87e.
68.
Arrest without warrant was summarised in
Sekhoto
as follows (
vide
Hiemstra
op
cit
at
5-8
):
(i)
the jurisdictional prerequisites for S 40 (1) (b) must be present;
(ii)
the arrester must be aware that he or she has a discretion to arrest;
(iii)
the arrester must exercise that discretion with reference to the
facts;
(iv)
there is no jurisdictional requirement that the investigating officer
should consider using a less drastic measure than arrest
to bring the
suspect before court.
(iv)
there is no jurisdictional requirement that the investigating officer
should consider using a less drastic measure than arrest
to bring the
suspect before court.
69.
"Reasonable grounds" are to be interpreted objectively -
Vide
Duncan
supra
at 814 D Per
Hiemstra op cit 5-8
:
"...
the section
requires
suspicion,
not
certainty. Such
suspicion
must, however,
make
sense, otherwise it is frivolous or arbitrary and not
reasonable.
There must
be
evidence
that
the arresting
officer
formed
a
suspicion
which
is
objectively
sustainable. See
Ralekwa
v
Minister
of
Safety and Security
2004 (1) SACR
131
T
par
1.
”
70.
I will succinctly summarise the salient facts in four cases where
unlawful arrest was established, to illustrate the legal precepts
applicable to same, as distinguishable from cases of lawful arrest.
71.
In
R v Jones
1952(1) SA
327
(EDL)
,
a
report to the police averred that a
woman was hit with a sjambok, causing an open wound. The constable
failed to confirm that the
wound was dangerous as required by
Schedule 1. An allegation of assault with intent to do grievous
bodily harm resulted in arrest
without the officer securing
information that a dangerous wound had indeed been inflicted.
72.
Another example is the arrest in the case of
Olivier
v
Minister
of
Safety
and
Security and
another 2008 (2)
SACR
387
WLD.
The
following occurred: Olivier, a superintendent in the SAPS based
in Heidelberg, was arrested without warrant and detained
for six and
one half hours on a charge of theft alternatively fraud. The charges
were later withdrawn. Another superintendent
(who had received
a call from an unidentified person) had told the arresting
officer, Senior Superintendent Mokoena ("Mokoena"),
that
Olivier had retained certain cigarettes, alcohol, clothing and shoes
seized in another case, instead of incinerating them
or throwing them
down a mine shaft, which was their standard modus operandi. Olivier
had retained five cartons of cigarettes which
lay openly on his desk
in his office but explained to Mokoena that he had done so because he
had to check with the area commissioner
about the manner in which
they were to be disposed of. Following Olivier's arrest, inspections
of his office and home revealed
no evidence of his possession of
these goods. He was released on bail at 20h00 that night. Following a
damages claim for unlawful
arrest, he was awarded damages of R50
000,00.
73.
At p395f of
Olivier
.
the Court remarked:
"The
plaintiff gave an exculpatory explanation which should have alerted
the second defendant (Mokoena) to the real possibility
that the
plaintiff at the time lacked the requisite mens rea for theft or
fraud. Indeed, the second defendant seemed to know very
little of the
requirements of s40(1)(b) where a
peace
officer effects an
arrest
without warrant.""
74.
The Court held that the enquiry must be decided on its own facts but
enunciated certain general principles at p398 d-f:
"This
entails that
the adjudicator
of fact should look
at
the prevailing circumstances
at
the
time
when
the
arrest
was
made
and
ask
himself
the question
"was the
arrest
of
the accused
in
the
circumstances
of
the
case, having regard
to night risk,
permanence
of employment
and residence,
co
operation on
the
part of
the
accused, his
standing
in
the
community or amongst
his
peers,
the strength
or
weakness
of
the
case,
and
such
other factors
which the court may
find relevant,
unavoidable,
justified or the only reasonable means
to
obtain
objectives of
the
police investigation?"
The
interests
of justice
may
also be
a
factor.
"
75.
In
The
Minister
of
Safety
and
Security
v
Tyulu
2009
ZASCA 55
SCA dated 27 May 2009
,
a
48 year old magistrate was arrested on suspicion of being
drunk in public when he walked to a nearby filling station to buy a
soft
drink. The police had been on the lookout for a person whom a
witness, one Hendricks, had identified as being drunk while driving
a
vehicle. Tyulu denied being drunk while walking to the filling
station and denied driving the vehicle at all. A medical report
indicated that Tyulu's blood alcohol content was 0,23g per 100
millilitres, more than twice the legally permissible limit. Tyulu
admitted having consumed six beers at home shortly before going to
the petrol station. The charge that Tyulu was drunk in public
was
under section 154(1)(c) of the Liquor Act 27 of 1989 and
section 40(1)(a) of the CPA was invoked. The drunken driving
offence
was in terms of section 40(1)(f) of the CPA. Hendricks eventually
conceded that he was unsure whether the driver
of the vehicle was
indeed drunk. On appeal it was found that there was no reliable
evidence to prove that Tyulu was found to have
been drunk at all. The
OPP declined to prosecute. Tyulu was released after 15 minutes in
detention. He was awarded R15000,00 on
appeal.
76.
In
Minister
of
Safety
and
Security
and
Jonathan
Daniels v
Johannes
Francois
Swart
2012
ZASCA
16
SCA
22
March
2010
,
Johannes
Swart ("Swart"), a sergeant of 16 years' standing, was
arrested without warrant, under section 40(1)(b) of the
CPA, by a
co-officer, constable Jonathan Daniels ("Daniels"), from
the same police station at De Dooms, on a suspicion
of driving a
motor vehicle on a public road while under the influence of
intoxicating liquor. He spent four and one half hours
in detention.
The charge against Swart was withdrawn the following day after a
blood test revealed that his blood alcohol limit
was below the
permissible limit.
77.
The SCA found that the only basis for Swart's arrest was the evidence
from Daniels that he smelt of alcohol and that Swart's
vehicle had
left the road and landed in a ditch. There was no evidence that he
was unsteady on his feet, that his speech was slurred
that he could
not walk in a straight line or that his eyes were bloodshot. On the
contrary, Swart appeared to have been in full
control of his senses
and spoke in a friendly and coherent manner. See paragraphs 21 and 22
of the judgment. His damages award
of R50 000,00 was confirmed on
appeal.
78.
A significant case in which a claim for damages for unlawful arrest
and assault and malicious prosecution was dismissed on appeal
by a
three judge bench of this division is
Minister of Safety and
Security and another
v
Linda
2014(2)
SACR
464
GP
.
It was based on the arrest by Inspector
Tinyiko Chauke ("Chauke"), an officer of 16 years'
standing, of Mr Beka Linda,
("Linda"), without warrant, for
murder, attempted murder, and rape on 11 August 2004. The arrest was
based on the statements
of three witnesses.
79.
On 11 August 2004, the main witness, Ms Tinyiko Josephinah Mabasa
("Josephinah"), had told Chauke she knew nothing
of the
incident. Chauke obtained statements on 13 August 2004 from Mabasa's
two relatives, Ms Vaidah Mabasa ("Vaidah")
and Ms Constance
Mabasa("Constance"). They confirmed that Josephinah had
arrived home on 11 August 2004 wounded and told
them what happened,
but refused to identify her assailant. On 16 August 2004, on
Josephinah's transfer to a hospital in Limpopo,
she retracted her
prior version and gave a detailed statement implicating Linda. Linda
had raped her and while doing so, noticed
another man watching them.
Linda proceeded to shoot the man, (who was a previous boyfriend of
hers), and the gunshot wounded her
in her abdomen. She had witnessed
the murder, was on the receiving end of attempted murder and had been
raped. As correctly put
in the
Linda
case, at paragraph
33, most right thinking people would have considered Linda, on
the basis of this information, to pose a
potential danger.
80.
Linda testified in his damages trial that, on the morning of the day
after his arrest, he had offered Chauke an alibi, namely,
that he was
at home that evening and had gone out to buy a chicken to cook for
his grandmother. On his arrest, he had first exercised
his right to
silence.
81.
At paragraph 35 of the
Linda
case, the Court
pertinently noted:
"
While an arresting officer may be expected to
assess
the
information at his or her
disposal
critically
before
arriving
at
a
reasonable
suspicion,
it
would be wrong
to
demand
an
evaluation and
determination on
a
balance of
probabilities.
As
stated
earlier,
a
suspicion
by
its
nature
arises
early
in
an investigation;
it precedes
proof
and
may
even
be
less
than
a
prima
facie case.
It is
for
the
court
considering
bail
to
weigh
the probabilities, not
the arresting officer.
"
82.
In
Linda,
the DPP had declined to prosecute, no
prosecution was conducted and the trial court correctly dismissed
Linda's claim for malicious
prosecution. See paragraph 4 of this
judgment.
83.
I turn to the facts in this case. I am mindful of the premise that
the suspicion must be objectively reasonable but does not
require
certainty. It was explained in
Linda at paragraph 21
that suspicion
"inherently
involves
an
absence
of
certainty
or
adequate
proof.
A
police officer
is
not
expected
to satisfy
himself
to
the
same
extent
as
a
court.
A
suspicion
can be reasonable
despite there being
insufficient
evidence for
a
prima
facie
case.
In
Shabaan
Bin
Hussein
and
others
v
Chong
Fook Kam and others
1969 3 All
ER
1626
PC at
1630
,
the Privy
Council said:
"
suspicion
in
its
ordinary
meaning
is
a
state
of
conjecture
or
surmise where proof
is lacking,
I suspect but I
cannot prove.
Suspicion arises at or
near
the
starting
point
of
an
investigation
of
which
the
obtaining
of prima facie
proof
is the end.
"
84.
The critical question to be asked is whether Sekgothe had enough
evidence at his disposal on 9 July 2010 to create reasonable
grounds
for arrest without warrant, which grounds were objectively
sustainable. As demonstrated in the cases of
Jones, Tyulu,
Olivier
and
Swart,
the grounds for arrest
without warrant were tenuous at best, with a lack of reliable,
independent corroboration in most instances.
In casu, the complaint
in E.'s statements was independently supported by a medical expert,
and, together with the identification
of Maffa by E. Sekgothe was
reasonable in acting on this. As indicated in
Linda
,
the evidence does not have to be sufficient enough to sustain a
prosecution without further ado.
85.
Sekgothe was a senior officer with twenty five years' experience in
the police force and ten of those had been spent in the
Unit which
specialised in, inter alia, rapes against minor children. He was an
impressive witness, his evidence being credible
and coherent. He was
well acquainted with the requirements of section 40(1)(b) of the CPA
and knew that he had to have reasonable
grounds for the arrest of
Maffa. He knew that rape was a Schedule 1 offence, and he knew that
some form of independent corroboration
should be obtained in the form
of medical evidence before any arrest took place. He presented as a
competent and conscientious
officer.
86.
He based his decision to arrest Maffa on E.'s statement of what her
three year old daughter had told her about Maffa's sexual
molestation
of her, on the contents of the medical report, the Form J88, which
indicted penetration of the vagina, and on E.'s
pointing out of Maffa
as the "grandfather" of whom B. spoke when B. complained
about what Maffa had done to her. He also
mentioned the fact that B.
had pointed out her grandfather at the time, albeit that he admitted
that this was omitted from his
statement. even assuming B. did not
make the pointing out, this was more than enough evidence on which to
base an arrest without
warrant. Maffa was arrested on the evening of
Friday, 9 July 2010, and brought to Court at the first available
opportunity on the
morning of Monday, 12 July 2010.
87.
In this enquiry, the Court is required to have regard to the
information available to the arresting officer at the time of arrest.
Evidence which comes to light after this does not affect the question
as to what was known to the arresting officer at the date
of arrest.
The officer has to balance incriminating facts against exculpatory
facts. The incriminating facts, namely, E.'s first
statement, the
Form J88, and E.'s pointing out of Maffa as the "grandfather"
of whom B. spoke, were cogent. Sekgothe
denied that Maffa told him on
the night of arrest to speak to T. in the adjoining bedroom. I am
disinclined to believe Maffa on
this allegation. Maffa makes no
mention of this in either his warning statement or bail
affidavit. To compound matters, Maffa,
on his own version, took no
steps to obtain a statement from T. himself.
88.
The exculpatory facts were non-existent, apart from bare denials of
guilt. Objectively speaking, at no stage did T. ever give
a
statement, whether at her own behest, or via the police, or via
Maffa's legal representatives. The latter omission being inexplicable
considering that Maffa was legally represented at most of the
hearings in the rape case, and that he continued to live together
with T. until circa 2012, that is, for two years after the incident.
No effort was made to inform the police about Baby's custody
of B. on
5 July 2010, or about the existence of E.'s boyfriend.
89.
Maffa's warning statement of 10 July 2010 makes no attempt to
establish an alibi which could have been investigated by the police.
He could have informed the police that B. was always in the company
of T. and was never left with him alone. He could have mentioned
that
Baby had B. in her custody until midnight on 5 July 2010. He could
have mentioned that E. had a boyfriend, Thabo Masemene,
who should
have been interviewed. He could have stated that he was working as a
hawker during the relevant period leaving home
at 07h00 and returning
home at 19h00. Maffa also makes no mention of his allegation, in this
Court, that Sekgothe had been in a
romantic relationship with E.
since 2009, and that Sekgothe had been seen in the area driving an
Isuzu vehicle. Maffa also omitted
to mention that Sekgothe suggested
a bribe following Maffa's arrest, asking Maffa how much money he had.
In his warning statement
Maffa avers that he tried to explain but it
"was all in vain". And yet the warning statement
represented his golden opportunity
to do so. Maffa proved an
unreliable witness in several material respects.
90.
He had another opportunity to exculpate himself in his bail
affidavit, when he was legally represented by Mogale. He did not
do
so. On the objective facts, Maffa made no effort to co-operate with
the investigation. He seemed to labour under the impression
that
negative DNA results would constitute absolute exculpation.
91.
It is correct that, post arrest, no DNA evidence linked Maffa with
the sample taken from B.. Irefer to the report of 13 September
2010.
Mnisi indicates in her report of 13 May 2011 that B. was unclear
about her evidence, yet social worker Masebe says on 15
July 2013:
"Although
the
incident
occurred
in
2010
the
child
could
recall
what transpired.
She
was
slightly uncomfortable talking about the incident.
This
is
further
aggravated
by
the
fact
that
the
accused
is
often
seen
in
the neighbourhood."
92.
E.'s first statement contradicts her second statement in a material
respect. In her first statement, she avers
"My child told me
that her
grandfather took something and
put it inside
her vagina and now its
paining".
In her second
statement she says:
"
When asking her
what
happened
she told me that her grandfather, referring to
Johannes Mafa,
was
smearing her with medicine on her
vagina."
93.
None of these facts derogates from the validity of the arrest of
Maffa because this post-arrest evidence was unknown to Sekgothe
on 9
July 2010, and formed part of a continuous investigation which would
only reveal the relevant facts over the passage of time.
They were
patently not ascertainable at the date of arrest. By its very nature,
the enquiry as to reasonableness in the decision
to arrest at a
moment in time is not one which takes account of events ex post
facto.
94.
For the reasons adumbrated above, I find that the arrest of Maffa on
9 July 2010 without warrant was lawful and that his case
for damages
on this ground falls to be dismissed.
95.
I interpose to mention that the SCA in
The Minister of Safety and
Security
v Venter and two others
2011 ZASCA
42
SCA 29
March 2011
mentions the
duty
on a police officer to
investigate a complaint of domestic violence and to collate all
information in connection with it. This in
terms of certain
guidelines published by the Minister of Safety and Security. Where
members of the Brakpan police station had not
assisted in opening a
docket relating to domestic violence against Christa van Wyngaardt's
ex husband, one "Whitey",
the Minister was held liable for
75% of the damages suffered. The apportionment was due to the failure
by the plaintiffs to obtain
a common law interdict against Whitey.
The harm occurred when Whitey arrived at her home with a crossbow and
handcuffs and told
her he was going to kill Venter with a crossbow.
Whitey raped van Wyngaardt and found her boyfriend's gun at the
house. Her boyfriend,
Paul Venter, ("Venter"), on arrival
at the house, was shot in the arm by Whitey and managed to escape.
Whitey committed
suicide two days after his arrest. It is trite law
that this duty on the police is not confined to cases of domestic
violence.
In casu, Sekgothe carried a similar duty.
96.
I turn to the evidence concerning the case for malicious prosecution.
In this case, the Court is enjoined to have regard to
the period
between Maffa's first court appearance on 12 July 2010 and the date
when the case was struck from the roll, being 30
September 2011. In
the result, the Court needs to have regard to the information made
available to the prosecution during this
period.
97.
The requirements of malicious prosecution as mentioned in
Minister
for
Justice and Constitutional Development and others v
Moleko 2009(2)
SACR
585 SCA at
paragraph 8
are all of the following, namely:
a.
The defendants set the law in motion by instigating the proceedings;
b.
The defendants acted without reasonable and probable cause;
c.
The defendants acted with malice or animus iniuriandi; and
d.
The prosecution has failed.
98.
It was established that the prosecution occurred at the instance of
the NPA and that the role of the police was to gather information.
This was corroborated by the evidence of Sekgothe and Letsholo.
99.
I refer to the requirement of "reasonable and probable cause".
I am satisfied that, between 12 July 2010 and 30 September
2011, the
prosecution honestly believed that the proceedings were justified.
The absence of DNA evidence, and the reservations
made about B.’s
reliability in Mnisi's report, did not serve to strengthen the case
against Maffa. However, these facts cannot
be viewed in isolation.
Moreover, the absence of DNA does not entirely negate the prospects
of a successful prosecution. Maffa
gave no information of any
exculpatory nature in his warning statement (or bail affidavit)
despite the fact that he did not decline
to make a statement at all.
He simply gave a bare denial, while rather expediently alleging that
nobody would listen to him, and
without affording the police the
opportunity to investigate what turned out to be his defence to the
charge when this action came
to trial in October 2016. In
Olivier
,
the Court attached weight to the fact that an exculpatory
statement was given by Olivier on arrest, in finding that his arrest
was
unlawful.
100.
To aggravate matters, Maffa was found culpable of breaching his bail
conditions in the rape case by going to E.'s home and
intimidating
her. The Court which revoked his bail, after a full hearing, was
sufficiently satisfied that Maffa had interfered
with an important
State witness. Maffa has claimed no damages for the period he
remained in custody as a consequence, namely, from
31 August 2010
until 30 September 2011.
101.
Letsholo was insistent that the case remained prosecutable but had
not been pursued because of the unknown whereabouts of the
complainant. Sekgothe corroborated this evidence. The case was struck
from the roll because the police docket had gone missing
and for no
other reason. Since the striking off of the case, the report of
Masebe had come to light in which she had indicated
that B. had a
proper recollection of events. The material contradictions in E.'s
statements were, however, cause for circumspection,
but the contents
of the second statement did not entirely retract the contents of the
first. There remained the suggestion of sexual
molestation of some
sort on Maffa's part, a competent verdict in a rape case. There was
no evidence that the NPA has declined to
prosecute.
102.
Concerning the element of malice, I found no evidence to substantiate
this requirement. I am influenced in this regard by the
circumstances
of Maffa's arrest and of the nature of the evidence obtained against
Matta during the overall investigation. I found
a measure of
negligence in the failure of the police to obtain statements from T.
and possibly Baby, and possibly E.'s boyfriend,
but this falls short
of animus iniuriandi. There were several investigating officers in
the matter, and this may have resulted
in further neglect. In any
event, Maffa could have secured T.'s statement even more readily than
the police, based on his relationship
with her and the fact that
their relationship continued even after the incident.
103.
In the final analysis, therefore, Maffa has failed to discharge the
onus of proving a case for malicious prosecution. In argument
before
me, Counsel for the defendants indicated that the defendants did not
persist in claiming a costs order if the plaintiff
was unsuccessful,
owing to his apparent indigence. I accept this concession.
104.
The following order is granted:
a.
the plaintiff's action against the defendants is dismissed;
b.
each party shall pay its own costs of suit.
__________________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances
For
the Plaintiff:
Advocate T Moretlwe
Instructed
by:
Mahlangu Mashoko Inc Attorneys
Counsel
for Defendant: Adv MM Mokodikoa-Chauke
Instructed
by: The
State Attorney