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[2015] ZAGPPHC 201
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Linde v Minister of Police and Another (61509/12) [2015] ZAGPPHC 201 (14 April 2015)
IN THE HIGH COERT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case no. 61509/12
DATE: 14 APRIL 205
In the matter of:
CAREL PETRUS
LINDE
....................................................................................................
PLAINTIFF
And
THE MINISTER OF
POLICE
.................................................................................
IST
DEFENDANT
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
....................................................................................................
2ND
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)