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[2015] ZAGPPHC 186
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Linde v Minister of Police and Another (61509/12) [2015] ZAGPPHC 186 (14 April 2015)
IN
THE HIGH COERT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. 61509/12
DATE:
14/4/2015
In
the matter of:-
CAREL
PETRUS LINDE
…....................................................................................
PLAINTIFF
and
THE
MINISTER OF POLICE
…....................................................................
1
ST
DEFENDANT
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
.....................
2
ND
DEFENDANT
JUDGMENT
1.
Plaintiff’s
causes of action against the defendants are twofold: First, a claim
for wrongful and unlawful arrest against First
Defendant and,
secondly, a claim against the First and Second Defendants for
malicious prosecution. The particulars appear from
the pleadings and
need not be repeated.
2.
At the commencement of
proceedings the Plaintiff applied for a separation of issues in terms
of Rule 33(4). After having heard argument,
I granted the application
and ordered that the issues pertaining to liability and quantum,
respectively, be separated, that the
trial would continue regarding
the issue of liability only, and that the issue of quantum be
postponed sine die. Costs were to
be in the cause.
3.
Plaintiff practices as
an environmental specialist in Pretoria. As such he, inter alia,
often, and in the course of his practice,
lodges applications for
land use approvals, new developments, and the like, with the relevant
state departments, on behalf of clients.
On 29 April 2009 the
Plaintiff filed a rectified application for environmental
authorisation in terms of the
National Environmental Management Act,
1998
, for a proposed township establishment, with the Limpopo
Department of Economic Development (“the Department”). In
so doing, the Plaintiff acted on the instructions of one Mr. Botha (a
Town Planner), who, in turn, acted for the developer of the
proposed
township, a certain Mr. Bornman. The purpose of the application was
to obtain the necessary “Record of Decision”
from the
Department.
4.
Full particulars
regarding the history of the application appear from the statement by
Ms. Rodgers, an employee of the Department,
as that statement appears
at page 60-61 of Bundle “C”.
5.
The approval of the
application for obtaining the required Record of Decision (“ROD”),
was taking up too much time for
the liking of Mr. Botha and the
latter’s client. Mr. Botha (acting upon the advice of one Mr.
Joubert), thereupon instructed
the Plaintiff to contact a certain Mr.
Norman Mathebula who, according to the information that Botha had
obtained, was a former
official of the said department and who,
moreover, had the necessary “contacts” within the
department and also the
“know-how” to speed up the
process of obtaining the ROD. Botha provided the Plaintiff with the
necessary information
regarding the contact details of Mathebula and
also said that the client was willing to pay Mathebula’s fee
for the work
to be done by him. Plaintiff thereupon contacted
Mathebula with the request that he should see to it that the process
for approval
be speeded up. The nature of the work to be performed by
Mathebula has been described by witnesses as being that of a “foot
soldier” who “knocks on doors” to make enquiries
and hence exert pressure on departmental officials.
6.
Towards the end of May
2008 Mathebula informed the Plaintiff that the ROD had been issued.
Mathebula personally brought the ROD
to Plaintiff in Pretoria and was
paid R5000 by Plaintiff for his services. The alleged ROD furnished
by Mathebula to Plaintiff
appears at p. 50 and further, of Bundle
“C”. The covering letter to the alleged ROD appears on
page 49 of Bundle “C”.
As part of the alleged ROD, and at
p. 77 of Bundle “C”, the particulars of an alleged “site
visit’ appear.
The relevance of the particulars encapsulated in
both the covering letter and the alleged “site visit” are
dealt with
infra.
7.
Plaintiff couriered the
said documentation to Botha, who resides in Potchefstroom.
8.
By October 2008 the
Department suspected that fraud had been committed with regard to the
issuing of the alleged ROD. Mr. Lucky
Moja, a member of the so-called
“Green Scorpions”, was tasked to investigate the matter.
Eventually, the Department
gave notice to Botha and his principal as
per the letter dated 17 August 2009 (Bundle “C” p. 98-99)
that no development
of the proposed township may take place.
9.
On 20 November 2009 Mr.
Lucky Moja took a statement from Mr. Botha – Bundle “C”
page 94-97. In the statement Mr.
Botha explains how it came about
that the services of Norman Mathebula had been obtained, and with
what purpose. Mr. Botha also
confirmed that Plaintiff had acted upon
Botha’s instruction when the former contacted Mathebula and
obtained his services
for the purposes as foresaid.
10.
In his evidence in
Court Botha also said that upon receipt of the documentation from
Mathebula, and prior to sending the documentation
to him, Plaintiff
had mentioned to Botha that the former had some concerns regarding
the contents of parts of the documentation
provided by Mathebula,
that he had taken it up with Mathebula and that the latter had
promised to attend to Plaintiff’s queries.
11.
Also during July 2009
Mr Moja contacted the Plaintiff and inter alia informed the latter
that he, Moja, suspected that fraud had
been committed regarding the
issuing of the alleged ROD. At Moja’s insistence Plaintiff
provided the former with an “overview”
of his involvement
in the process, inclusive of how Mathebula had become involved.
12.
In January 2010
Plaintiff was approached by the investigating officer, Lieut-Col
(then Captain) Shiburi. The latter requested a
statement from
Plaintiff. Plaintiff, however, responded that he was only willing to
provide a statement in the presence of his
lawyer. Such a statement
was later provided by Plaintiff, after having consulted his lawyer.
However, on 4 May 2010 Plaintiff received
a call from Shiburi during
which the latter informed him that the State Prosecutor had decided
to prosecute him and that Plaintiff
should present himself at the
Sunnyside Police Station to be arrested. Due to certain personal
circumstances Plaintiff was only
in a position to attend at the
Police station the following day, 5 May 2010, where he presented
himself to Shiburi at approximately
2pm and was formally arrested by
Shiburi. The “Constitutional Warning” signed by Plaintiff
appears at p 54 of Bundle
“C”.
13.
Having been arrested
Plaintiff was taken to the holding cells where his fingerprints were
taken. Subsequent thereto, Shiburi granted
Plaintiff bail of R1000
which was duly paid by Plaintiff. According to Plaintiff he spend
some three hours (i e from approximately
2-5pm) at the Police Station
before being granted bail and allowed to leave.
14.
Plaintiff thereupon
appeared in Court on 6 May 2010 and 24 May 2010 (when the case was
postponed on each occasion) and again on
29 July 2010. During these
appearances, Mathebula appeared as accused number one and Plaintiff
as accused number two. At none of
these appearances was any charge
brought against or put to Plaintiff. In fact, at no stage did he ever
receive a formal charge
sheet regarding any alleged charges against
him. At the Court appearance on 29 July 2010 Mathebula pleaded
guilty. The charge against
Mathebula inter alia reads that he
was guilty of fraud in that he pretended to Linde (the Plaintiff)
and/or Hannes Botha
“that the Environmental Authorisation of a
township development document was issued/authorised by the department
of Environmental
Affairs, to the prejudice or potential prejudice of
Environmental affairs and/or Hannes Botha.” In his Plea
Explanation to
his plea of guilty (p 37-38 of Bundle “C”)
Mathebula stated as follows: “I did unlawfully and
intentionally
defraud, gave out and pretend to carel petrus Linde and
Hannes Botha that the Environmental Authorisation of a township
development
is issued and authorised by the Dept.of Environmental
Affairs.” Consequently, Mathebula was found guilty and the
trials were
separated.
15.
Subsequently, Plaintiff
appeared again in Court on 9 September 2010, 9 November 2010 and 24
November 2010, when the case against
Plaintiff was withdrawn.
16.
When testifying on
behalf of First defendant Shiburi persisted that the fraud he
suspected Plaintiff of having committed, was fraud
against Botha. In
essence, Shiburi based his suspicion in this regard on the following
facts which were at his disposal, pursuant
to the investigation of
Moja: First, false letterheads of the Department were used: secondly,
the signatures of the “authorised”
signees on the ROD
were probably falsified. In addition Shiburi added that his suspicion
was aroused because of the referral in
the ROD (the first paragraph
thereof at p 79 of Bundle “C”) to the Environmental
Conservation Act of 1989, whereas
the actual application was launched
in terms of the
National Environmental Management Act of 1998
, as
well as the fact that all three of the “attendants” to
the “site visit” referred to at p 79 could probably
not
have been present at a site meeting at that particular time and date.
According to Shiburi he suspected that Plaintiff must
have been aware
of these facts and that the latter, nevertheless, presented the
alleged ROD as an authentic document to Botha and
hence committed
fraud against Botha. Shiburi did not rely on Plaintiff having
committed fraud against the Department, only against
Botha.
17.
The State Prosecutor in
the Court where Plaintiff and Mathebula appeared as co-accused, Mr
Makhuvha, testified on behalf of the
Defendants. In essence, he
persisted that the reason for Plaintiff being prosecuted was that the
latter committed fraud against
the Department; in other words, that
Plaintiff was in cahoots with Mathebula in committing fraud against
the Department. This (so
he reiterated) was the case despite the
contents of Mathebula’s Plea Explanation in which the latter
stated that he had acted
fraudulently against , inter alia, the
Plaintiff, as has been quoted supra.
WRONGFUL
ARREST
18.
In
Duncan
v Minister of Law and Order
1986
(2) SA 805
(AD) at 814 D-E the following was said: “It was also
common cause that the question whether a peace officer ‘reasonably
suspects’ a person having committed an offence within the ambit
of s 40(1)(b) of the Act is objectively justiciable. And
it seems
clear that the test is not whether a policeman believes that he has
reason to suspect, but whether, on an objective approach,
he in fact
has reasonable grounds for his suspicion.” Given the
circumstances of the arrest in this instance, it is trite
that the
onus rests on the defence to justify an arrest:
Minister
of Law and Order v Hurley
1986
(3) SA 568
(AD) at 589E-F.
19.
The first three of what
are usually referred to as the four jurisdictional facts necessary
for a lawful arrest, were present in
this instance: see
Minister
of safety and Security v Sekheto and Another (unreported)
131/2010
ZASCA 141 (19 November 2010) par [6]. The only question to be decided
is whether reasonable grounds (in the sense as referred
to in
Duncan
supra), can be said
to have been present. When deciding the issue, and in addition
to what has already been referred to regarding
the facts which
preceded the arrest, the following are also relevant. It was Botha
who requested Plaintiff that the services of
Mathebula (who was
unknown to Plaintiff) should be obtained for purposes of “speeding
up” the process at the Department,
and at a fee to be provided
by Botha or his client. Plaintiff was merely the “go-between”
in that regard. Those facts
appear from Botha’s statement made
to Moja. Having been placed in possession of the alleged ROD by
Mathebula and prior to
forwarding same to Botha, Plaintiff did inform
Botha that he had some concerns regarding certain issues pertaining
to the ROD,
that he had taken those up with Mathebula, and that the
latter had undertaken to attend to Plaintiff’s concerns. These
constitute
objective facts which, had they been taken into
consideration by Shiburi, clearly would have gainsaid any suspicion
of Plaintiff
having had the intention to defraud Botha. In addition,
the likelihood of Plaintiff having been in cahoots with Mathebula in
the
latter’s defrauding of the Department is negligible and
highly improbable. It would have been utterly stupid for someone in
Plaintiff’s position to have intended to present Botha (from
whom he regularly received instructions to launch similar
applications)
with a falsified ROD or an ROD concerning which he had
doubts, and believe that his unprofessional conduct would go
undetected.
20.
In coming to that
conclusion I need not revert to questions such as the following:
what influence (if any) did Plaintiff’s
initial decision
not to adhere to Shiburi’s request to provide him with a
statement had on Shiburi’s decision to arrest?
Or, was an
arrest really justified or could Plaintiff’s presence at Court
have been obtained in a different way? The objective
facts, as
alluded to in the previous paragraph, clearly show that no reasonable
grounds for the arresting officer’s suspicion,
in fact,
existed: there were no grounds that would or could constitute a
reasonable suspicion that Plaintiff had intended to defraud
Botha.
Hence, from the very outset the premise on which Shiburi based his
actions against Plaintiff was flawed: at the very least
a simple
enquiry with Botha regarding Plaintiff’s attitude regarding
possible flaws (which may have amounted to fraudulent
action) forming
part of the ROD, could have cleared up the incorrect suppositions
upon which Siburi based his intended charge against
Plaintiff.
21.
In my view wrongful and
unlawful arrest, as pleaded, has been proven by Plaintiff.
MALICIOUS
PROCEEDINGS
22.
The requirements for
malicious prosecution are conveniently set out in
Minister
for Justice and Constitutional Development & others v Moleko
[2008] 3 All
SA 47
(SCA)par 8 as follows: “In order to succeed on the merits
with a claim for malicious prosecution, a claimant must allege and
prove; (a) that the defendants set the law in motion (instigated or
instituted the proceedings); (b) that the defendants acted
without
reasonable and probable cause; (c) that the defendants acted with
malice (or animus iniuriandi, and; (d) that the prosecution
has
failed.”
23.
In the present case it
is evident that the defendants set the law in motion to prosecute
Plaintiff. Regarding the issue of reasonable
and probable cause, I
have already held that a simple enquiry by Shiburi would have
resulted in the conclusion that Plaintiff,
in no way, intended to
defraud Botha (as was Shiburi’s reason for instituting legal
proceedings against Plaintiff). Hence,
Shiburi could not have had an
honest belief founded on reasonable grounds, that the institution of
proceedings was justified: the
objective facts (as alluded to) point
to the absence of reasonable grounds: no ordinary care and prudence
had been exercised by
him. In addition, the State Prosecutor intended
to charge Plaintiff for fraud committed against the Department
whilst, clearly,
no reasonable grounds for such a charge ever
existed. Hence, reasonable and probable cause was absent.
24.
The third requisite
requires more intensive scrutiny. In
Moleko
supra it was said
that either dolus directus or dolus indirectus must be proven [61]
and that “...the defendant directed his
will to prosecuting the
plaintiff...in the awareness that reasonable grounds for the
prosecution were (possibly) absent, in other
words, that his conduct
was (possibly) wrongful (consciousness of wrongfulness). It follows
from this that the defendant will go
free where reasonable grounds
for the prosecution were lacking, but the defendant honestly believed
that the plaintiff was guilty.
In such a case the second element of
of dolus, namely consciousness of wrongfulness, and therefore animus
injuriandi, will be lacking.
His mistake therefore excludes animus
injuriandi.” [63] It was further held that where a defendant
has foreseen the possibility
that he was acting wrongfully but
nevertheless continued to act, reckless as to the consequences of his
act, then dolus eventualis
was established. In that case the fact
that the defendant would “...in all probability be ‘injured’
in his dignity...”
but still taking the decision to prosecute
him “...without making any of the enquiries which cried out to
be made...”
showed recklessness which constituted dolus
eventualis. [65]
25.
I am of the view that
Shiburi’s conduct, as has been alluded to herein before,
amounts to recklessness, as he also failed
to make enquiries which
“cried out to be made”. The same reasoning as in
Moleko
finds application.
Also, I hold that Shiburi did not honestly believe that Plaintiff was
guilty (i e of defrauding Botha). The facts
at Shiburi’s
disposal simply did not allow for such a belief. But even if I am
mistaken in holding such, there is another
reason why Shiburi’s
motivation for allegedly having believed that Plaintiff had defrauded
Botha is unacceptable. That reason
is that I do not believe Shiburi
when he says that Plaintiff was in cahoots with Mathebula to an
extent where the former intended
to defraud Botha. In this
regard his evidence while testifying was unconvincing and reluctant.
I gained the distinct impression
that he was grasping at straws in
order to justify his own conduct. I hold that I cannot rely on his
evidence in this regard.
26.
Regarding the conduct
of Makhuvha acting on behalf of Second Defendant, the situation was
even worse: he commenced and proceeded
with a prosecution for which
the known facts did not render any support viz for fraud committed by
Plaintiff as against the Department.
Despite the terms in which
Mathebula’s Plea Explanation were couched and despite him
having pleaded guilty and, moreover,
despite Mathebula having
admitted to also having defrauded Plaintiff, those facts did not
serve as any deterrent for Second Defendant:
on the contrary, the
prosecution of Plaintiff was proceeded with for another two court
appearances before eventually being withdrawn.
27.
In my view, therefore,
all the requisites for malicious prosecution have been satisfied and
proven.
28.
I make the following
order:
It
is held that First Defendant is liable to Plaintiff for wrongful and
unlawful arrest;
It
is held that First and Second defendants, jointly and severally, are
liable to Plaintiff for malicious prosecution.
Costs
of suit thus far to be costs in the cause.
..........................................................................
T
J KRUGER (AJ)