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[2016] ZAGPPHC 1256
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Hoogendoorn v Minister of Police and Another (58534/2012) [2016] ZAGPPHC 1256 (11 November 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE NO:
58534/2012
DATE DELIVERED:
17/11/16
IN
THE MATTER BETWEEN
INA
HOOGENDOORN
Plaintiff
and
MINISTER
OF
POLICE
First Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
Second Defendant
JUDGMENT
VAN NIEKERK, AJ
INTRODUCTION:
[1]
Plaintiff
is an adult female and housewife, who was born on the 13
th
of March 1961 and who was arrested and detained on a charge of fraud
which was later withdrawn against the Plaintiff, and as a
result of
which the Plaintiff instituted action against the First Defendant as
well as the Second Defendant pursuant to an alleged
unlawful arrest
and detention as well as an alleged malicious prosecution. The First
Defendant is the Minister of Police in his
official capacity, who is
vicariously liable for the conduct of members of the South African
Police Service and the Second Defendant
is the National Director of
Public Prosecution, in his official capacity, who is vicariously
liable for acts and omissions by prosecutors
in the scope and course
of their duties.
[2]
The
action stems from an incident where the Plaintiff, her husband Mr
Kryn Hoogendoorn, and the Plaintiff's son, Mr Juan du Plooy
(who is
the stepson of the Plaintiff's husband) was arrested by Lieutenant
Colonel Maleka of the West Rand Organised Crime Unit
of the South
African Police Service on Thursday the 4
th
of November 2010 on charges of fraud, which resulted in the
Plaintiff's detention until the 12
th
of November 2010 when the Plaintiff was released on bail, and
whereafter the charge of fraud was withdrawn against the Plaintiff.
[3]
In essence, the Plaintiff's claims
consist of the following:
[3.1] A
claim for damages based on an averment that the arrest of the
Plaintiff on the 4
th
of November 2010 without a warrant of
arrest by members of the Special Commercial Unit and subsequent
detention until the 12
th
of November 2010 was unlawful and
in respect of which the Plaintiff pleaded in the Plaintiff's amended
particulars of claim as
follows:
"On
or about 4 November 2010 the Plaintiff was arrested without a warrant
of arrest by members of the Special Commercial Crime
Unit who failed
in effecting the arrest to have formed an opinion as to the
commission of a crime alternatively, if such opinion
had been formed
it was improperly formed."
[3.2] A
claim for damages based on an averment that the First and Second
Defendants wrongly and maliciously
set the law in motion by arresting
the Plaintiff for alleged fraud, without a reasonable or probable
cause for doing so, nor having
any reasonable belief in the truth of
the information at their disposal, as a result of which the Plaintiff
was charged and detained
for alleged fraud from the 4
th
of
November 2010 until the 12
th
of November 2010 whereafter
the case against the Plaintiff was withdrawn.
[4]
The
Defendants' plea admits the facts relating to the arrest and
detention of the Plaintiff, but denies that the arrest and detention
was unlawful and in respect of which the following is pleaded:
"8.4
The basis of this suspicion at the time of arrest was, inter alia,
that the fruits of a fraudulent
transaction or transactions in which
a certain Mr Kryn Hoogendoorn was involved with, was deposited into
the personal bank account
of the Plaintiff."
[5]
In
terms of an agreement between the parties the issue relating to the
merits of the Plaintiff's claims was decided first and separately
in
terms of the provisions of Rule 33(4) from the issue relating to the
quantum
of
damages, and an order to that effect was made during the course of
the trial. This judgement therefore deals with the merits
of the
Plaintiff's claims for damages against the First and Second
Defendants on the issues as defined in the pleadings.
EVIDENCE BEFORE THE COURT:
[6]
The
Plaintiff testified during the trial, and called as supporting
witnesses her husband to whom she was married at the time of
the
arrest, her son, as well as Mrs Christie du Plooy who is the wife of
her son who testified. On behalf of the Defendants the
investigating
officer Lieutenant Colonel Maleka was called as a witness and
thereafter the prosecutor of the Protea Magistrate's
Court, Soweto,
Mrs Danette van Schalkwyk, testified.
[7]
For purposes of this judgement, it is
necessary that certain factual findings must be made. Whereas the
Plaintiff and the three
witnesses called on her behalf materially
collaborated each other's evidence, the versions offered on various
issues by the two
witnesses called on behalf of the Defendants
differed, not only from the evidence adduced on behalf of the
Plaintiff but also from
each other. It is therefore necessary to make
a credibility finding as far as the witnesses are concerned.
[8]
The Plaintiff was an impressive witness and I have no hesitation in
accepting the
version of the facts as testified by the Plaintiff. My
impression of the Plaintiff in the witness box was that of an
unassuming,
non-confrontational and rather withdrawn kind of person,
and at no stage during her evidence in chief or cross-examination did
the Plaintiff contradict herself, nor did she attempt to avoid any
questions, and where she was unsure of an answer she indicated
same.
I was similarly impressed by the evidence of Mrs Christie du Plooy,
in respect of whom I made similar observations in the
witness box
than that of the Plaintiff, and I have no reason to reject any of the
evidence of this witness. The evidence of Plaintiff's
husband as well
as the evidence of Plaintiff's son, Mr du Plooy, similarly cannot be
rejected as it stood the test of cross-examination
and in all
material respects these four witnesses supported each other's
versions of the events.
[9]
Unfortunately, the same cannot be found
regarding the witnesses called on behalf of the First and Second
Defendants. Lieutenant
Colonel Maleka's evidence was fraught with
inconsistencies and during cross-examination it was put to Lieutenant
Colonel Maleka
by Counsel acting on behalf of the Plaintiff that he
"tailored"
his
evidence, which, in my opinion, is a most appropriate description of
this witness's evidence. Lieutenant Colonel Maleka
inter
alia
confidently testified that
in his presence the attorney acting on behalf of Plaintiff and her
other two co-accused, during the proceedings
in the Protea Regional
Court on 8 November 2010, offered that Mr du Plooy would repay an
amount of RS0 000.00 to the complainant
in the fraud case, and that
proof of a transfer of funds on behalf of Mr du Plooy to the
complainant was handed in to the presiding
Magistrate in Court,
whereas this evidence was clearly fabricated and also rejected as
being untrue by the prosecutor involved
in this transaction (which
will be referred to morefully
infra)
as having taken place in the
office of the Chief Prosecutor, without Lieutenant Colonel Maleka
being present. This is but one example
of numerous snippets of
factual fabrications on the side of Lieutenant Colonel Maleka, with
which the second witness called on
behalf of the Defendants did not
agree when it was put to her in cross-examination that such evidence
of Lieutenant Colonel Maleka
was led. Apart from the aforesaid,
Lieutenant Colonel Maleka gave a version regarding material issues
which was never put to either
the Plaintiff or any of the witnesses
called on her behalf, and when questioned about the fact whether or
not he gave such instructions
to Counsel acting on behalf of the
Defendants, he affirmed that he in fact did so. Having regard to the
importance of those issues,
it is highly improbable that Counsel
acting on behalf of the Defendants would not have put that version to
the Plaintiff and the
only inference to be drawn is that, also in
this respect, Lieutenant Colonel Maleka blatantly attempted to
mislead the Court.
[10]
I
further have no hesitation in dismissing any evidence by the second
witness called on behalf of the Defendants, being the prosecutor
referred to
supra,
insofar
as it differs from the evidence of the Plaintiff and the witnesses
called on her behalf. This witness failed to answer questions
directly, but rather resorted to provide elaborate detail as to the
reason for an answer, often failing to answer the pertinent
question,
and constantly attempted to qualify answers so as to present herself
in a more favourable light. Even when this witness
was eventually
constrained during cross examination as well as questions from
the Court to make a concession, she would refuse
to do so and
attempted to argue her way out of the predicament. Evidence of the
Plaintiff relating to the conduct of this witness
during her
interaction with the Plaintiff during the Plaintiff's court
appearances exhibits a highhanded approach tantamount to
bullying
tactics and my impression of this witness in the witness box
confirmed this.
[11]
Bearing the aforesaid in mind, the
factual evidence can be summarised as follows:
[11.1] A certain Mr de
Villiers
["the complainant"]
and Plaintiff's husband
was involved in business transactions regarding the sale and resale
of fuel and gas. At the same time, during
or about 2009, the
Plaintiff's husband entered into an adulterous relationship with a
family member of Mr de Villiers, and towards
the middle of 2010 this
relationship proverbially turned sour, resulting in the mistress
making an anonymous telephone call to
the Plaintiff who then
discovered the existence of the relationship. Plaintiff's husband
confessed to her, and they decided to
proceed with the marriage
relationship as before, having being married for in excess of 20
years at that stage. According to the
evidence of the Plaintiff's
husband, the mistress did not take kindly to the fact that the
relationship between her and the Plaintiff's
husband was terminated.
This then led to a strained relationship between the Plaintiff's
husband and De Villiers;
[11.2] The
Plaintiff's husband, who is a qualified Chartered Accountant,
resigned from his employment at
Nedbank approximately 17 years ago
and in order to curtail banking fees, suggested to the Plaintiff that
they continue to operate
a banking account of the Plaintiff. This led
to a situation where a cheque account at First National Bank opened
while Plaintiff
was still employed in the name of the Plaintiff, was
utilised solely by the Plaintiff's husband for his personal and
business transactions,
and a savings account which was coupled to
this cheque account, also at First National Bank, was operated by the
Plaintiff. The
Plaintiff, being a housewife, had no need for a cheque
account any longer, was in possession of a bank card, and monies were
deposited
into the savings account from time to time by the
Plaintiff's husband being the sole breadwinner from the cheque
account to the
savings account which the Plaintiff then utilised for
household necessities. The Plaintiff had no access to the bank
statements
of the cheque account, as this was sent per e-mail to the
computer of the Plaintiff's husband, and Plaintiff further testified
that she at all relevant times trusted her husband and that there was
no need to question his
modus
of operation of this
cheque account. Into this cheque account an amount of approximately
7000 US Dollars were deposited on a monthly
basis at a certain time,
being income earned by the Plaintiff's husband from a foreign
company. The Plaintiff was telephonically
contacted by the Reserve
Bank prior to these deposits and that is the end all of her
involvement with this cheque account. From
this cheque account
certain of the parties' household expenses were paid, including
rental of their accommodation and personal
expenses of the
Plaintiff's husband;
[11.3] The
Plaintiff's son conducts business as a financial adviser and entered
into an agreement with the
Plaintiff's husband in terms whereof
commission earned by Plaintiff's son on referrals by Plaintiff's
husband would be shared between
them and for which purpose
Plaintiff's son paid an amount of RS0 000.00 into the account
operated by Plaintiff's husband. The policy
in respect of which this
commission transaction took place was shortly thereafter cancelled by
the client, resulting in Plaintiff's
son having to repay commission
earned by him, and whereafter at the request of Plaintiff's son,
Plaintiff's husband deposited the
amount of RS0 000.00 into the
account of the Plaintiff's son, being repayment of the commission
referred to
supra;
[11.4] On
Thursday, the 4
t
h
of November 2010, the Plaintiff's husband received a telephonic call
from the son of the erstwhile mistress, who requested the
Plaintiff's
husband to assist him with certain VAT issues and requested to meet
the Plaintiff's husband at a filling station in
Broadacres, West
Rand. The Plaintiff's husband proceeded to meet this person, a
certain Mr Nichols, at the filling station and
upon arrival there,
after entering the shop to purchase something and returning from the
shop, Lieutenant Colonel Maleka and
another
member of the SAPD approached the Plaintiff's husband and informed
him that he was being arrested for fraud. Mr Nichols
simply lured
Plaintiff's husband to this filling station on a pretext in order to
facilitate the arrest by Lieutenant Colonel Maleka.
The Plaintiff's
husband was handcuffed and then requested to indicate where the
Plaintiff could be found. Plaintiff's husband complied
and Lieutenant
Colonel Maleka and his colleague drove Plaintiff's husband to the
residence which Plaintiff occupies with her husband,
followed by
another police car;
[11.5] At
the Plaintiff's residence she was informed by Lieutenant Colonel
Maleka that she was arrested
for fraud, and Lieutenant Colonel Maleka
then requested the Plaintiff and her husband to indicate where their
son Juan du Plooy
could be found. Again they complied with this
request. Arriving at the residence of Plaintiff's son, he was
similarly informed
that he was being arrested for fraud. At the time
of his arrest his wife, his wife Christie was attending a choir
practice and
she rushed home. She was shocked and at that stage 8
months pregnant. Mr du Plooy requested Maleka if he had a warrant,
whereupon
Maleka replied that he did not
"need"
a warrant;
[11.6] All
three witnesses testified that they were informed by Lieutenant
Colonel Maleka that they were
being arrested for fraud and
notwithstanding their requests, no further information relating to
the charges were given by any of
the policemen involved. All the
witnesses confirmed that there were four police officers present,
with two police vehicles, and
this was also confirmed by Lieutenant
Colonel Maleka. It is also common cause that all these arrests were
effected without a warrant
of arrest;
[11.7] The
arrests were effected in the late afternoon and all three suspects
were held in a police cell
at the Krugersdorp Station of the South
African Police Services overnight. The next day, approximately
midday, warning statements
were obtained from them and they were
required to sign documentation that their rights were explained to
them. In the meantime,
an attorney was instructed by a family member
of Mrs Christie du Plooy, and upon request by this attorney he was
informed that
it was not possible to proceed to the Magistrate's
Court for purposes of a bail application in the light of the fact
that there
was some or other function at the Magistrate's Court that
afternoon being the Friday afternoon of 5 November 2010;
[11.8] The
three accused were then held at the Krugersdorp holding cells and on
Monday, the 8
th
of November 2010 transported to the Protea Regional Court by
Lieutenant Colonel Maleka. The Plaintiff was placed separately from
her husband and son in a trial awaiting facility at this Court, and
the lawyer previously instructed consulted
inter
alia
with
Plaintiff's husband and son, and had discussions with the State
Prosecutor referred to
supra,
but not with
Plaintiff. Plaintiff testified that all relevant times she was
completely in the dark as to the reason for her arrest,
but that she
was assured by her husband that
"everything
will be sorted out"
and
Plaintiff's husband testified that he suspected that his arrest was
as a result of the involvement of Mr de Villiers and his
erstwhile
mistress and that he informed all parties that the issue involved
himself and Mr de Villiers, that his wife and son had
nothing to do
with the issue, and that he would sort it out;
[11.9]
Shortly before the lunch adjournment of the Court on 8 November 2010
the three accused were fetched
from their respective holding cells
and taken to the Court. Their interaction with the prosecutor, Mrs
van Schalkwyk was, to say
the least, unpleasant. She accused the
Plaintiff's husband of being involved in a
"syndicate",
she indicated
she had a thick file compiled on them, that she was investigating
them for fraud in excess of R3 million, and threatened
that she would
have them locked up in the Diepkloof Prison for a long time. Shortly
after they were brought to Court, the Court
adjourned for lunch and
the attorney then informed them that the prosecutor informed the
attorney that, if monies allegedly owing
to Mr de Villiers is repaid
to Mr de Villiers, the charges will be withdrawn. An amount of R175
000.00 was mentioned. Plaintiff's
husband testified that he simply
did not have that amount of money readily available;
[11.10] The Plaintiff's
daughter in law, who was 8 months pregnant, was present at Court and
in a severe emotional state.
Plaintiff's son requested the prosecutor
whether he could be released and thereafter a
"deal"
was made in the
office of the Chief Prosecutor, Mr Lambrechts, brokered by the
prosecutor Mrs van Schalkwyk, to the effect that
the Plaintiff's son
pay to Mr de Villiers an amount of RS0 000.00 whereafter the charges
against Plaintiff's son would be dropped.
During these
"negotiations",
Mrs van
Schalkwyk was in telephonic contact with the complainant, Mr de
Villiers. The brother of Plaintiff's husband then proceeded
to a bank
in Krugersdorp and effected a transfer of funds to the account of Mr
de Villiers, the account particulars of which was
supplied to the
parties by Mrs van Schalkwyk, and
rushed
back to Court with the documentary proof of transfer into the account
of Mr de Villiers. Upon inspecting this document, the
prosecutor Mrs
van Schalkwyk dropped the charges against Plaintiff's son. Prior to
the time when this
"agreement"
was entered
into, Mrs van Schalkwyk was informed of the commission transaction
between the Plaintiff's son and the Plaintiff's husband
in terms
whereof the R50 000.00 was paid into the account of the Plaintiff's
son by the Plaintiff's husband and she was therefore
aware of the
fact that it was the version of Mr du Plooy that he is not guilty of
any fraud;
[11.11] Unfortunately, the
same fate did not befall the Plaintiff who was then detained at the
Diepkloof Sun City prison from
the 8
th
of November 2010 until the 8
th
of November 2010 when a bail application was launched on her behalf
and she was released on bail of R10 000.00 and other conditions.
The
bail application was launched on the 10
th
of November 2010 in the light of the fact that a date for such bail
hearing had to be arranged between the prosecutor and the attorney
acting on behalf of the Plaintiff. Although Mrs van Schalkwyk
conceded during cross-examination that she, at all relevant times,
believed that the Plaintiff did not pose a flight risk, that she had
no other evidence against the Plaintiff save for the bank
statements
of the account in the name of Plaintiff where the funds were paid in,
no investigation or effort was made by her or
by the Magistrate to
determine whether or not it would be in the interest of justice that
the Plaintiff be released in terms of
the provisions of Section
60(11)(1)(b) of the Criminal Procedure Act. It was clearly the
attitude of Mrs van Schalkwyk that the
onus
rested
squarely on the Plaintiff to apply for bail and, failing such an
application by the Plaintiff or an attorney acting on her
behalf,
that the Plaintiff should remain under arrest in prison;
[11.12] On the 19
th
of November 2010 the charge against the Plaintiff was withdrawn.
After numerous appearances over a protracted period of time, the
Plaintiff's husband eventually pleaded guilty to fraud and received a
suspended sentence. He explained that he simply ran out of
funds as
each appearance cost him R20 000.00 in legal fees, and insisted that,
given a fair and reasonable opportunity, he would
have been able to
prove his innocence. Whether that is so or not, is irrelevant for
purposes of this action;
[11.13] Lieutenant Colonel
Maleka testified that his involvement was as a result of the fact
that, during or about September
2010, and whilst at the same Court,
he was called into the office of the Chief Prosecutor, Mr Lambrechts,
and introduced to a certain
Mr de Villiers (the complainant) who was
sitting in the office with Mr Lambrechts. Lieutenant Colonel Maleka
testified that it
was explained to him by the Chief Prosecutor that
he should investigate a charge of fraud against the Plaintiff's
husband and was
handed four statements deposed to by four different
persons, one of them being De Villiers, which implicated the
Plaintiff's husband
in fraud. In each of these statements it was
stated that the Plaintiff's husband instructed certain parties to
deposit monies into
two different account numbers, and on a follow up
it was discovered that these account numbers belongs to the Plaintiff
and her
son respectively. The one account is the cheque account in
Plaintiff's name which her husband utilised, and the other account is
that of her son where the commission transaction funds were paid in;
[11.14] Lieutenant Colonel
Maleka obtained copies of the account statements and returned to the
Court whereupon the prosecutor
Mrs van Schalkwyk made an inscription
in the investigation diary on the 3
rd
of November 2010 which reads:
"I've
read all the relevant documents and am of the opinion that
Hoogendoorn +
the wife + stepson can be arrested for fraud. Please effect
same."
Underneath this,
in the investigation diary, Lieutenant Colonel Maleka on the 3
rd
of November 2010 wrote
"Your
instructions are noted and shall comply with."
Although
he reluctantly did so, Lieutenant Colonel Maleka eventually conceded
that he regarded same as an instruction to arrest
and acted on such
instruction and as a result thereof effected the arrest of the three
accused the following day;
[11.15] During
cross-examination Lieutenant Colonel Maleka conceded that, in his
opinion, the mere fact that the bank accounts
where the funds were
deposited in were in the names of the Plaintiff and her son
respectively, such fact did not constitute fraud
by the Plaintiff or
her son. On the other hand, Mrs van Schalkwyk who, according to her
evidence is an experienced prosecutor of
long standing, insisted that
those facts alone constituted adequate grounds for an arrest on a
charge of fraud. When asked whether,
in her opinion, those facts if
proven at the trial without any other facts, would lead to a finding
that the Plaintiff and her
son would be found guilty of the charge of
fraud, she answered that it would constitute a
prima
facie
case
of fraud against them which they would have had to answer.
This
reasoning
by a self-acclaimed experienced and seasoned State Prosecutor is, to
say the least, astounding;
[11.16] When asked why a
less drastic measure of obtaining the presence of the Plaintiff at
Court than an arrest without a
warrant could not have been effected,
Mrs van Schalkwyk answered that the provisions of Section 60(11) of
the Criminal Procedure
Act provides no discretion and that the
procedure of arrest had to be followed. She proceeded to attempt to
convince the Court
that, because of Section 60(11), there is no
discretion afforded to the arresting officer. Again, this is a clear
misstatement
of the law and authorities in relation thereto, and the
only inference that can be drawn therefrom is that either Mrs van
Schalkwyk
is wholly incompetent to be employed in the responsible
position of State Prosecutor with it's constitutional
responsibilities
or simply attempted to mislead the Court;
[11.17] When asked about the
"agreement"
regarding the
payment by the Plaintiff's son to Mr de Villiers, and after it was
pointed out to Mrs van Schalkwyk that she was aware
of the fact that
the Plaintiff's son relied on a legally enforceable contractual
obligation by his stepfather to repay to him the
amount of RS0 000.00
and that he was, through the procedure employed, in an extremely
precarious situation and repaid monies which
he believed was due and
owing to him over to a third party to whom he had no legal
obligation, she responded by saying that it
is
"sy
weergawe"
(his
version) thereby clearly implicating that she does not understand the
gravity of the injustice to Mr du Plooy nor does she
believe his
version, although she was constraint to admit that she had no reason
not to believe him;
[11.18] In the evidence in
chief of Mrs van Schalkwyk she testified that she attempted to broker
a situation where so-called
"restorative
justice"
could
be effected to the complainant. It is however clear that the
"agreement"
regarding the
payment of the RS0 000.00 referred to
supra,
was not
effected in terms of Section 300 of the Criminal Procedure Act 51 of
1997, nor was it done in terms of the guidelines by
the Department of
Justice regarding
"restorative
justice".
Mrs
van Schalkwyk, pointed out that the Department of Justice introduced
various measures to control the procedure known as
"restorative
justice"
including
the requirement of a proper documentatory recordal of these
transactions in order to curtail abuses which have taken place
in
this respect.
In
casu,
there
was no recordal of this
"transaction"
anywhere and
especially not in Court.
[11.19] I regard the
modus
operandi
of
the parties concerned on behalf of the State to engineer a situation
where an accused, who has a
bona
fide
defence,
to the knowledge of the State, is literally blackmailed into paying
over to a third party in respect of whom he has no
legal obligation
to do so, an amount of money relating to a transaction between that
party and someone else in order to procure
his release from detention
after having spent 4 nights and 5 days in detention, in the presence
of his wife who is 8 months pregnant
and extremely emotional and
shocked, without proper adherence to the provisions of Section
35(1)(f) of the Constitution as pronounced
upon in various
Constitutional Court judgements which places an obligation on those
officiaIs in this respect, as a blatant dereliction
of duty. This
factor will
[11.18] In the evidence in
chief of Mrs van Schalkwyk she testified that she attempted to broker
a situation where so-called
"restorative
justice"
could
be effected to the complainant. It is however clear that the
"agreement"
regarding the
payment of the R50 000.00 referred to
supra,
was not
effected in terms of Section 300 of the Criminal Procedure Act 51 of
1997, nor was it done in terms of the guidelines by
the Department of
Justice regarding
"restorative
justice".
Mrs
van Schalkwyk, pointed out that the Department of Justice introduced
various measures to control the procedure known as
"restorative
justice"
including
the requirement of a proper documentatory recordal of these
transactions in order to curtail abuses which have taken place
in
this respect.
In
casu,
there
was no recordal of this
"transaction"
anywhere and
especially not in Court.
[11.19] I regard the
modus
operandi
of
the parties concerned on behalf of the State to engineer a situation
where an accused, who has a
bona
fide
defence,
to the knowledge of the State, is literally blackmailed into paying
over to a third party in respect of whom he has no
legal obligation
to do so, an amount of money relating to a transaction between that
party and someone else in order to procure
his release from detention
after having spent 4 nights and 5 days in detention, in the presence
of his wife who is 8 months pregnant
and extremely emotional and
shocked, without proper adherence to the provisions of Section
35(1)(f) of the Constitution as pronounced
upon in various
Constitutional Court judgements which places an obligation on those
officials in this respect, as a blatant dereliction
of duty. This
factor will
be
considered
infra
when dealing
with the issue of malice regarding the prosecution.
UNLAWFUL
ARREST- LEGAL REQUIREMENTS:
[12]
In
Minister of Safety and Security v
Sekhoto & Another 2011(1) SA CR 315 (SCA)
at
paragraphs [6] and [21] it was held that the jurisdictional facts
which must exist before the power to arrest a suspect without
a
warrant in terms of
Section 40(1)(b)
of the
Criminal Procedure Act 51
of 1977
may be invoked are:
[12.1]
The arrestor must be a police officer;
[12.2]
The arrestor must entertain a suspicion that the arrestee committed
an offence
referred to in schedule 1 of the
Criminal Procedure Act;
>
[12.3]
The suspicion must rest on reasonable grounds.
[13]
In
Louw
& Another v Minister of Safety and Security & Others 2006{2}
SA CR 178 (T)
at 183 J to 184 D
it was held that, for a reasonable suspicion for purposes of a lawful
arrest without a warrant, the arresting
officer must investigate any
exculpatory explanation offered by the suspect.
[14]
The test whether or not reasonable
grounds exist for a suspicion, is an objective test and was
formulated as follows:
"In
evaluating this information any reasonable man would bear in mind
that the section authorises drastic police action The
reasonable man
will therefore analyse and assess the quality of the information at
his disposal critically, and he will not accept
it lightly or without
checking it where it can be checked. It is only after examination of
this kind that he will allow himself
to entertain a suspicion which
will justify an arrest the section requires suspicion but not
certainty. However, the suspicion
must be based on solid grounds.
Otherwise it will be flighty or arbitrary, and not a reasonable
suspicion."
[Vide: Minister of Safety
and Security v Sekhoto & Another 2011 [1] SA CR 315 (SCA)]
[15]
In casu,
it
was the evidence of Lieutenant Colonel Maleka that he effected the
arrests on the instruction of Mrs van Schalkwyk. He therefore
did not
apply his mind to the issue as set out in the
Sekhoto
judgement and the passage
therein quoted
supra.
Apart
from this, on his own evidence he did not believe that the simple
fact that the monies were paid into the account of the Plaintiff
constituted fraud. This evidence of Lieutenant Colonel Maleka clearly
extinguishes any defence which the First Defendant may have
had to
the Plaintiff's case in this regard. Bearing in mind that it is trite
law that the
onus
rests
on the Defendant to prove lawfulness once it is established that the
Plaintiff was arrested, on the evidence of Lieutenant
Colonel Maleka
the First Defendant dismally failed in this respect.
MALICIOUS
PROCEEDINGS:
[16]
The
requirements for a successful claim for malicious proceedings as set
out in the
Minister of Police v
Schubach 2015 (JOL) 32615 (SCA)
a
re:
[16.1] The
law was set in motion;
[16.2] In
setting the law into motion the party acted without a reasonable
and/or probable cause;
[16.3]
There was malice;
[16.4] The
prosecution failed.
[17]
From
the available facts it is clear that the law was set in motion by
employees of both the First Defendant and Second Defendant.
The
Plaintiff was formally charged with fraud pursuant to her arrest for
fraud.
[18]
A
prosecutor has a duty not to act arbitrarily but with objectivity and
in protection of the public interest.
Vide: Carmichael v Minister
of Safety and Security
&
Another,
Centre for Applied Legal Studies Intervening, 2002 (1) SA CR 79 (CC)
par. 72
In
Democratic
Alliance v President of the RSA
&
Others 2002(1) ALL SA 243 (SCA)
it
was held:
"Despite
the variety of arrangements in prosecutors' offices, the public
prosecutor plays a vital role in ensuring due process
and the rule of
law as well as respect for the rights of all the parties involved in
the criminal justice system. The prosecutors'
duties are owed
primarily to the public as a whole but also to those individuals
caught up in the system, whether suspects or accused
persons,
witnesses or victims of crime. Public confidence in the prosecutor
ultimately depends on confidence that the rule of law
is obeyed."
[19]
Mrs van Schalkwyk, when confronted with
the issue that she had only available the bank statements of the
Plaintiff into which funds
were paid, was quick to respond that this
created by a
"suspicion"
in
her and therefore she proceeded with the charge of fraud, due to the
fact that it may later have transpired that the Plaintiff
may also
had been involved in the fraudulent dealings. She speculated as to
whether or not the Plaintiff may have been involved
in the business
of her husband, without having any factual basis to do so. The cogent
answer to this reasoning of Mrs van Schalkwyk
is to be found in
State
v Lubaxa 2001(2) SA CR 703 (SCA)
at
paragraph 19 where it was held that:
"Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely
in the expectation
that at some stage he might incriminate himself. That is recognised
by the common law principle that there should
be 'reasonable and
probable' cause to believe that the accused is guilty of an offence
before a prosecution is initiated ......
and the constitutional
protection afforded to dignity and personal freedom
(section 10
and
section 12)
seems to reinforce it.
It ought to follow that if a
prosecution is not to be commenced without that minimum of evidence,
so too should it cease when the
evidence finally falls below that
threshold."
[20]
Nine days after the release of the
Plaintiff on bail, the charge against her was dropped. Between the
time that she was initially
arrested on the 4
th
of November 2010 until the time that the charge was dropped on the
19
th
of November 2010, no facts transpired which even remotely could have
been construed as supporting evidence that the Plaintiff had
any
dealings with the complainant or made any false representation to the
complainant. Once again, the conduct of Mrs van Schalkwyk
does not
stand up to proper legal scrutiny. There simply was no reasonable
ground to charge the Plaintiff with fraud.
[21]
Malice can only be inferred from the
available facts. Towards the end of the evidence of Mrs van
Schalkwyk, she made an emotional
plea to the Court stating that she
never had any
"kwade gevoelens"
and simply acted in the scope of her
duty. On the available evidence I have no hesitation in rejecting
this plea of Mrs van Schalkwyk,
for the following reasons:
[21.1] A
prosecutor with many years of experience such that of Mrs van
Schalkwyk, in a system which is overburdened
with cases to such an
extent that the rolls of the Courts are congested to a stage where
this problem is in the public domain and
regularly addressed as an
issue for concern on a political and administrative level renders it
simply unexplainable why a prosecutor
would assist a member of the
public as speedily and efficiently as Mr Lambrechts and Mrs van
Schalkwyk did assist the complainant
by employing the State mechanism
and the provisions of the
Criminal Procedure Act to
achieve nothing
more than debt collection, resorting to the blackmail techniques
referred to
supra.
The only inference which can be made
from this, is one of malice;
[21.2] The fact
that Mrs van Schalkwyk failed to comply with her duty towards the
Plaintiff as pronounced in the
judgements referred to
supra,
failed to respect the constitutionally enshrined rights of
the Plaintiff in terms of Section 12(1) of the Constitution, but was
prepared to allow a middle aged lady and her son to be locked up on
request of a member of the public on charges in respect of which
no
evidence existed can only infer malice;
[21.3]
However, the evidence of the Plaintiff, her husband and her son to
the effect that Mrs van Schalkwyk
initially threatened them and then
made it known that they will be released on paying the amount of R175
000.00 to Mr de Villiers,
as well as the
"transaction"
conducted in the office of Mr Lambrechts referred to
supra,
is a clear indication of the abuse of the process of the
Criminal Procedure Act to
achieve a result in favour of someone else
and not that for which purpose the State machinery and especially the
Criminal Procedure Act should
be employed for namely the bringing to
justice of criminals. This is clearly malicious.
[22] As
far as the requirement that the prosecution must fail is concerned, I
hold that this does not require
that the trial against the Plaintiff
should have proceeded and that a finding of not guilty should have
been recorded but includes
the withdrawal of a charge which was
unreasonable brought. To argue otherwise, would be illogical.
COSTS:
[23] I
cannot find any reason why the Defendants should not be ordered to
pay the Plaintiffs costs. Although
the conduct of the officials in
the employ of the First and Second Defendants warrant a punitive
order for costs, this was not
sought by the Plaintiff. I have
considered ordering the two officials referred to
supra
to
pay the costs of the Plaintiff in their personal capacities, in line
with the principles as set out in
Coetzee v National
Commissioner of Police
&
Others 2011{2} SA/
227 GNP, para. 60-101.
The two officials concerned were
however not party to this litigation and not represented herein and
to order them to pay the costs
would negate the
audi alteram
partem
rule. The Registrar of this Court will be requested to
forward this judgement to the Defendants cited in this action for
their respective
consideration and application of any internal or
disciplinary measures which they deem fit.
WHEREFORE I MAKE AN ORDER IN THE
FOLLOWING TERMS:
[1]
It is declared that the arrest and
detention of the Plaintiff from 4 November 2010 until 10 November
2010 was unlawful and Plaintiff
is entitled to claim damages from the
First Defendant in consequence;
[2]
It is declared that the prosecution
instituted against the Plaintiff in terms whereof the Plaintiff was
charged with fraud was malicious
and Plaintiff is entitled to claim
damages from First- and Second Defendants, jointly, in consequence;
[3]
It is ordered that the First and Second
Defendants pay the Plaintiff's costs of the separated issue in
respect of the merits on
the scale as between party and party;
[4]
The Registrar is requested to forward
this judgement to the First Defendant and the Second Defendant for
consideration of any disciplinary
or other measures against the
officials referred to herein.
VAN
NIEKERK AJ
11
November 2016