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[2015] ZAGPPHC 100
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Du Toit and Another v Sebakeng (A997/13) [2015] ZAGPPHC 100 (26 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE NO: A997/13
DATE: 26 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between
DU TOIT, S.J.H
…...............................................................................................
1
st
APPELLANT
PREMIER FOODS
LTD
....................................................................................
2
nd
APPELLANT
and
SEBAKENG, SELEKA
NELSON
........................................................................
RESPONDENT
JUDGMENT
MUDAU, AJ
[1]
The respondent, Mr Sebakeng, instituted an action for damages in the
Pretoria Magistrates’ Court against Mr Du Toit (the
first
appellant) and Premier Foods Ltd (the second appellant), based on his
alleged malicious prosecution by the appellants. The
trial in the
court a
quo
dealt
with the merits of the claim as well as the question of quantum. The
trial court held that Mr Sebakeng had established that
he was the
victim of a malicious prosecution and that, as a result of such
prosecution;
“
all
the elements of the delict”
had
been proven and awarded the respondent R90 000-00 claimed as well as
costs. The learned magistrate ordered the appellants to
pay the costs
of the matter. The issue in this appeal is whether the respondent had
discharged the onus of proof on a balance of
probabilities.
FACTUAL BAGROUND
[2] It is common
cause that on 25 January 2005 the respondent was arrested without a
warrant by members of the South African Police
Services, acting in
the course and scope of their employment, on suspicion of having
committed theft. The arrest followed a complaint
by the 1
st
appellant, to the police, that a package of 3KG wheat flour had been
stolen from the 2
nd
appellant’s premises. The
respondent was detained for 3 days before his 1
st
appearance at court. The respondent was charged with theft. Upon his
release on warning, the matter was postponed from time to
time until
the charge was withdrawn by the prosecutor after the magistrate had
refused a postponement for the docket, which was
not at court. On the
occasion that the charge was withdrawn against the respondent, the
state witnesses (including the 1
st
appellant) were at
court.
[3] At the trial in
the court below regarding this matter, it was the respondent’s
version briefly that he was employed by
a company named Suburban and
seconded to the 2
nd
appellant’s premises as a
painter. He earned R1200-00 per month. On the day of his arrest and
by 4 PM, he had finished work.
He was on his way out when he was
stopped by the security guard at the exit point. The 1
st
appellant was telephoned by the security guard and asked to come to
the scene. A packet of wheat which he allegedly stole was pointed
out. It is his version that he never stole any wheat. During
cross-examination, he conceded that the 1
st
appellant and
he had no grudges against each other. He further conceded that he had
since lost his job with Suburban after a disciplinary
hearing.
[4] In his defence
the 1
st
appellant testified essentially as follows. At the
time of the respondent’s arrest, he worked for the 2
nd
appellant's branch in Waltloo, Pretoria, as acting manager. He was
contacted telephonically by the Suburban services contract manager,
Mr Pitzer, who informed him that one of his ( Pitzers’s)
employees was caught by the security people at the gate. He went
to
the scene where he found the security guard and the respondent. The
respondent’s carry bag was on the floor. Inside the
bag was the
respondent’s overall. Underneath the overall was the packet of
wheat flour that according to the security guard,
the respondent took
out of their premises.
[5]
When he questioned the respondent why he took the packet, the
respondent explained that he wanted “to
go
and make pap or bake something’’.
When
the respondent was told that he had no permission to do so, the
respondent more or less got aggressive with his tone. The police
were
called and as a result, the respondent was arrested.
[6] On the day that
the charge was withdrawn, the trial magistrate apologised to him and
the security guard that the system had
failed them. Further, that,
they could reinstate the charge if the docket could be found. The
magistrate also informed the respondent
that he was lucky that the
system failed the witnesses. During cross-examination, the 1
st
appellant denied a suggestion put to him that the charge against the
respondent was withdrawn because there was no prima facie
case.
THE APPLICABLE
LAW
[7]
Malicious prosecution consists in the wrongful and intentional
assault on the dignity of a person comprehending also his or
her good
name and privacy
(Heyns
v
Venter
2004
(3) SA 200
(T)
208B). The requirements are that the arrest or prosecution be
instigated without reasonable and probable cause and with ‘malice’
or
animo
iniuriarum
(Thompson
& another v Minister of Police & another
1971
(1) SA 371
(E)
373F-H;
Lederman v
Moharal Investments (Pty) Ltd
1969
(1) SA 190
(A)
196G-H.) Although the expression ‘malice’ is used, it
means, in the context of the
actio
iniuriarum, animus iniuriandi
(Heyns
v Venter
above
208EF;
Moaki v
Reckitt & Colman (Africa) Ltd and another
1968
(3) SA 98
(A)
104A-B; and see the discussion in J Neethling JM Potgieter and PJ
Visser
Neethling’s
law of personality
2
ed (2005) 124-5).
[8] In order to
succeed with a claim for malicious prosecution, a claimant must
allege and prove -
(a) that the
defendants set the law in motion (instigated or instituted the
proceedings);
(b) that the
defendants acted without reasonable and probable cause;
(c)
that the defendants acted with ‘malice’ (or
animo
injuriandi),-
and
(d) that the
prosecution has failed. [In this case, of course, it is common cause
that Mr Sebakeng’s charge was withdrawn
due to the
unavailability of the docket].
[9]
It accordingly follows that a defendant will not be liable if he or
she held a genuine belief founded on reasonable grounds
in the
plaintiff’s guilt (
Prinsloo
and another
v
Newman
1975
(1) SA 481
(A)
498H-499C;
Fyne v
African Realty Trust Ltd
(1906)
20 EDC 248
256;
Ramakulukusha v
Commander, Venda National Force
1989
(2)
SA
813
(V)
844J-845B;
Madnitsky
Rosenberg
1949
(1) PH J5 (W)
)
Where reasonable and probable cause for an arrest or prosecution
exists the conduct of the defendant instigating it is not wrongful
(
Neethling’s
Law of Personality
178).
[10]
The requirement for malicious arrest and prosecution that the arrest
and prosecution be instituted ‘in the absence of
reasonable and
probable cause’ was explained in
Beckenstrater
v Rottcher and Theunissen
(1955
(1) SA 129
(A)
136A-B) by Malan J as follows:
“
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff’s guilt, a subjective element
comes into play and disproves the existence, for the defendant, of
reasonable and probable cause. ”
This
requirement is sensible:
“
For
it is of importance to the community that persons who have reasonable
and probable cause for a prosecution should not be deterred
from
setting the criminal law in motion against those whom they believe to
have committed offences, even if in so doing they are
actuated by
indirect and improper motives."
(Beckenstater
v Rottcher and Theunissen
above
135D-E); and
Relyant
Trading (Pty) Ltd. v Shongwe and Another
(472/05)
120061
IASCA
162:
Í20071
1 All SA 375
(SCA)
(
26
September 2006).
EVALUATION
[11]
It is clear from the facts in this case that the 1
st
appellant had set the law in motion when he called for the police.
The learned trial magistrate found that in doing so, the 1
st
appellant had no reasonable and probable cause in setting the law in
motion. However, this is not supported by the probabilities
of this
case in that according to the 1
st
appellant the respondent’s bag contained what was alleged to be
the stolen item. Consideration being had to the statement
attributed
to the respondent (above at para 5) that he was
“
going
to make pap or bake something”,
which
was never seriously challenged during cross-examination, there is no
support therefore that the 1
st
appellant did not act on reasonable grounds and with an honest
belief, with regard to the respondent’s guilt when he set
the
law in motion. In this regard, and in my view, the trial magistrate
misdirected himself.
[12]
By the respondent’s own version, the 1
st
appellant bore no grudge against him. A proper reading of the record
in this matter does not suggest that the appellants acted
with
‘
malice’
(or
animo injuriandi).
In
the contrary, the record shows that the 1
st
appellant and the security guard, who stopped, searched and found the
allegedly stolen item attended at the respondent’s
trial at all
relevant times until the magistrate refused a postponement for the
docket. On the probabilities, it would seem to
me that this was a
conduct by witnesses who wanted to see justice done.
[13]
The last aspect with regard to the required elements that, the
prosecution has failed should not detain us longer than it is
necessary. The respondent was not acquitted on the merits of the
trial as the charge was simply withdrawn for the reasons indicated
above (at para 6). Neither was this a
nolle
prosequi
on
the part of the prosecution authorities. In Lemeu v Zwartbooi
(1896
13 SC 403
at
405
)
De Villiers CJ stated the position as follows with regards to the
results (of a pending prosecution):
“
cannot
be allowed to be prejudged by the civil action, but as soon as the
Attorney- General, in the exercise of his quasi-judicial
function
,
has decided not to
prosecute, there is sufficient determination of the original
proceedings to allow the civil action being tried".
(Also
alluded to by Foxcroft J in
Els
v
Minister of Law
and Order and Others
1993
3 All SA
467
(C
,)).
[14]
The following was stated in
Thompson
& Another v Minister of Police & Another
1971
(1) SA 371
ECD
at
375 A - C:
“
In
an action based on malicious prosecution it has been held that no
action will lie until the criminal proceedings have terminated
in
favour of the plaintiff. This is so because of the essential
requisites of the action is proof of a want of reasonable and
probable cause on the part of the defendant, and while a prosecution
is actual pending its result cannot be allowed to the prejudged
by
the civil action (Lemue v Zwartbooi, supra at p 407). The action
therefore only arises after the criminal proceedings against
the
plaintiff have terminated in his favour or where the Attorney-General
has declined to prosecute. To my mind the same principles
must apply
to an action based on malicious arrest and detention where a
prosecution ensues on such arrest, as happened in the present
case.
The proceedings from arrest to acquittal must be regarded as
continuous, and no action personal injury done to the accused
person
will arise until the prosecution has been determined by his
discharge”. (Bacon v Nettleton,
1906
T.H. 138
at dp 142-3)
.
[15]
In argument before us, counsel for the respondent contended that the
withdrawal of the charge under these circumstances where
nothing has
been done since the withdrawal should constitute termination of
prosecution. Termination is described in the Oxford
English
dictionary, “as
the
action of putting an end to something or bringing something to a
close”.
Whereas,
“end (in time) means
“
cessation,
close, conclusion".
It
also includes
“
outcome”
or
“
result”.
[16]
Mhlantla JA put it aptly in Mashinini and Another v S
2012
(1) SACR
604
(SCA)
at
para [15] where the following is stated:
“
It
is a well-known fact that the State is dominus litis. After the
police have concluded their investigations, the docket is given
to
the prosecutor. He or she gains access to all documents and
statements in the docket. Based on this, he or she decides on which
charge(s) to prefer against an accused person. The latter plays no
role in this critical choice by the prosecutor. It follows that
any
wrong decision regarding the choice of an appropriate charge(s)
cannot be put at the accused person's door
”
(I
may add,
the
complainants and in this case, the
appellants’
door
).
[17]
It is trite that a prosecutor has a duty to prosecute a matter if
there is a prima facie case and if there is no compelling
reason for
refusal to prosecute. In this context therefore,
“
prima
facie case
”
means
the following: the allegations, as supported by statements and where
applicable combined with real and documentary evidence
available to
the prosecution, are of such a nature that if proved in a court of
law by the state on the basis of admissible evidence
the court should
convict (Freedom Under Law v National Director of Public Prosecutions
& others
2014
(1) SA 254
(GNP);
2014 (1) SACR 111
(GNP):
[20131
4 All SA 657
(GNP).
[18] As correctly
pointed out by the magistrate seized with the criminal trial, the
charge could be reinstated if the docket was
traced. In my view, and
on this aspect alone, the trial court in this matter misdirected
itself in finding that all the prerequisites
or elements for the
damages claimed have been met. The conclusions by the court below in
this regard are not supported by the facts.
Neither are they
supported by the relevant legal principles referred to above (at para
8). The criminal proceedings that were instituted
against the
respondent in the criminal court were not terminated in his favour.
The withdrawal of the matter is not akin to an
acquittal or the
termination of the matter against him. They may be sound reasons why
the matter has not been enrolled again. It
is not necessary for this
court to embark on a speculating exercise.
[19] Because of the
conclusions arrived below, it is not necessary to deal with the
aspect of the award.
CONCLUSION
[20] For the
foregoing reasons, it follows that the appeal falls to be upheld. In
the result, the following order is proposed:
1. The appeal is
upheld.
2. The order of the
court a quo is set aside and replaced with the following order:
2.1 The respondent’s
claims against both defendants are dismissed with costs’.
MUDAU TP
ACTING JUDGE OF THE
HIGH COURT
I agree and it is so
ordered.
KOLLAPEN J
JUDGE OF THE HIGH
COURT
Date of hearing: 19
February 2015
Date of judgment: 26
February 2015
Appearances
:
For the appellants:
Adv J Rust
Instructed by:
Maluleke, Msimang and associates
For the respondent:
Adv A Louw (SC)
Instructed by:
Madiba Attorneys