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[2015] ZAGPPHC 428
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Ley v Xstrata Coal South Africa (Pty) Limited and Others (38012/2013) [2015] ZAGPPHC 428 (19 May 2015)
IN THE
HIGH
COURT
OF
SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE NO: 38012/2013
DATE: 19/5/2015
IN
THE MATTER
B
ETWEEN:
JAMES
GREGORY
LEY
PLAINTIFF
AND
XSTRATA
COAL SOUTH AFRICA
(PTY)
LIMITED
FIRST DEFENDANT
BAREND
CHRISTOPHER DE WET
SECOND DEFENDANT
JUDGMENT
KOLLAPEN
J:
I.
The plaintiff issued summons against the defendant seeking damages in
the amount of R7 million in respect of what the plaintiff
alleges is
the instigation of a malicious prosecution against him by the second
defendant, who the plaintiff alleges was at all
relevant times,
acting in the course and scope of his employment with the first
defendant.
2.
Both defendants oppose the claim.
3.
The plaintiff and Mr Samuel Mthimunye testified in the plaintiff s
case, while Mr Barend de Wet, the second defendant, and Mr
Frank
Richards testified for the defendant.
FACTS
4.
The plaintiff was employed by the first defendant as a Plant
Superintendent at the South Witbank Coal Mine, where he was
responsible
for safety and production. He had been continuously
employed by the first defendant from 1989 until 2011, except for a
period of
about two years when he was employed elsewhere.
5.
During December 2010 arrangements were underway for the receipt
and installation of fabricated offices on the property, and the
installation was scheduled for the 26th or 27th of December 2010.
Ground maintenance would have to precede the installation and
this in
broad terms required the removal of existing concrete and bricks, and
the preparation of the ground.
6.
It is common cause that an order for this work was signed by the
first defendant on or about the 26th of November 2010, appointing
Coal Lite Engineering CC ('Coal Lite) to undertake the work.
7.
It is not in dispute that the plaintiff was requested on or about the
18th of December 2010 by one Mr Voges, his senior supervisor,
to
assist and to ensure that the work was completed. The plaintiff then
became involved and requested an entity known as Fraser
Alexander to
assist with the work. At the time, Fraser Alexander was already doing
work for the mine and was on site. It appears
that most of the work
in respect of the ground preparation was completed by Fraser
Alexander, not Coal Lite.
8.
After completion of the work Coal Lite prepared an invoice for R85
900 (plus VAT). Ms Melissa Bosch of Coal Lite took the invoice
to
Frank Richards in the engineering section of the first defendant on
Friday the 7th of January 2011 for his signature, which
was a
requirement before payment could be effected. Richards refused to
sign as he was of the view that Fraser Alexander had done
some of the
work and no provision had been made for them to be paid.
9.
On Monday the 10th of January 2011, the plaintiff accompanied by Ms
Bosch, and Mr Jan van Rooyen of Fraser Alexander, went to
Richards'
office and the plaintiff informed Richards that there was a
sub-contracting arrangement between Coal Lite and Fraser
Alexander
and that Coal Lite would arrange to pay Fraser Alexander. Richards
then approved the request for payment, which was then
effected.
10.
The issue of the existence or otherwise of the sub-contracting
arrangement is at the core of determining this matter.
11.
The plaintiff s stance is that he was informed of the supposed
sub-contracting arrangement by Bosch and he simply communicated
this
to Richards in the presence of Bosch and van Rooyen. His stance was
therefore that the second defendant who instigated the
charge
I
prosecution had no reasonable or probable cause to believe that
the plaintiff was guilty of fraud.
12.
The stance of the defendant is that there was no sub-contracting
arrangement and the plaintiff misled Richards into believing
that
such an arrangement was in place. In doing so, this led to the
prejudice of the first defendant, who paid Coal Lite for work
it did
not do. The first defendant was also required to pay Fraser Alexander
for some of the work it did and this amounted to some
R8 288-00. It
appears the money paid to Coal Lite was later recovered, but not much
turns on this. The second defendant's stance
is that he was justified
in taking the matter to the police.
13.
The plaintiff went through a disciplinary hearing and was found
guilty and dismissed on the basis of a dishonest practice in
relation
to the supposed Coal Lite
I
Fraser Alexander
sub-contracting arrangement.
14.
The plaintiff was also put on trial for fraud in the Kriel
Magistrate's Court and in the end he was acquitted.
15.
The defendant's stance is that following investigations and
interviews it conducted regarding payments to Coal Lite, it obtained
statements from Bosch, van Rooyen and Richards which indicated the
following:
•
The
plaintiff had appointed Fraser Alexander to do certain work m
connection with the ground preparation;
•
There
was no sub-contracting arrangement agreed upon between Coal Lite and
Fraser Alexander and it was the plaintiff who suggested
that Bosch
and van Rooyen go along with the sub-contracting 'arrangement';
•
Although
Richards refused to sign Coal Lite's invoice on the 7th of January
2011, this changed by the 10th of January 2011 after
the plaintiff
told him that a sub-contracting arrangement existed.
16.
In this regard even though Richards conceded that he would have been
justified in continuing to refuse to sign the invoice as
sub-contracting was not provided for in the order to Coal Lite, his
evidence was that he signed as a result of the plaintiff s
intervention.
THE
LAW
The
requirements
in a claim for malicious
prosecution
17.
In order to succeed on the merits with a claim for malicious
prosecution, a claimant must allege and prove:
i.
That the defendants set the law in motion (instigated or
instituted the proceedings);
ii.
That the defendants acted without reasonable and probable cause;
iii.
That the defendants acted with 'malice' (or
animo injuriandi);
and
iv.
That the prosecution has failed.
(See
Minister
for
Justice
and
Constitutional
Development
and
Others v
Sekele
Michael Moleko
(131/07)
[2008] ZASCA 43
(31 March 2008)).
Instigating
the prosecution
18.
What is required is more than simply reporting the facts to the
police but is instead what our Courts have described as 'being
actively instrumental in the prosecution of the charge'. In
LEDERMAN
v MOHARAL
INVESTMENTS
(PTY.)
LTD
1
969
(
1
)
SA
1
90
(A. D.),
the Court approved of the following
dicta
in
Waterhouse v Shields
1924 CPD 155
as reflecting the true
position of the law:
'The
first
matter
the plaintiff has
to prove
is
that
the
defendant
was actively
instrumental
in the
prosecution
of the charge.
This is a
matter more
difficult
to prove in South
Africa,
where prosecutions
are
nearly always
conducted
by
the
Crown,
than
it
is
in
England, where
many
cases are left to the private
prosecutor. Where a
person
merely gives
a fair
statement of the
facts
to the
police,
and leaves it to the latter to take such
steps
thereon
as
they
may
deem fit,
and
does
nothing
more to identify himself with the
prosecution,
he is not responsible,
in
an action for
malicious
prosecution,
to a
person whom the
police
may charge. But
if
he
goes
further, and
actively
assists
and
identifies
himself
with
the prosecution,
he may be held liable.
'The test
...is whether the defendant
did
more than tell the detective th
e
facts
and
leave him to act on his own
judgment'.
(at
page 197)
19.
From the evidence of the second defendant it is clear that beyond
reporting the matter to the police and sharing with the latter
the
information he had gathered in the form of witness statements, he had
taken the view that the plaintiff had committed a crime
and sought
his prosecution. I am satisfied that under these circumstances the
second defendant had identified himself with the
prosecution and went
beyond simply sharing the facts at his disposal with the police. This
is clear from his statement where he
takes the view that
'Greg Ley
had
no right or
permission
to
act
in
the
way
he
did. We request
SA
Police investigation
and prosecution
in
this case.'
20.
I am satisfied that the plaintiff has on a preponderance of
probabilities proved this requirement.
Acted
without
reasonable
and probable
cause
21.
In
Minister for Justice
and
Constitutional Development and
Others
v Sekele Michael Moleko
(supra)
,
the Court characterised this requirement as follows:
'Reasonable and
probable cause,
in the context
of a
claim
for malicious prosecution, means
an
honest
belieffounded
on reasonable
grounds
that
the
institution
of
proceedings
isjustified.
The concept
therefore
involves
both
a
subjective
and
an
objective element
(see
Prinsloo & Another v Newman
1975 (1) SA 481
(A) -
'Not
only
must the defendant have subjectively
had an
honest belief
in
the guilt
of
the plaintiff,
but
his
belief
and
conduct
must
have
been
objectively
reasonable,
as
would
have
been
exercised by
a
person using ordinary
care and
prudence.
'
(see
15
Lawsa
1999 para 449 and the authorities there cited and
also
Wille
'sPrinciples
of South
African
Law
pp 1193-1194)
22.
In this regard the evidence of the second defendant was that he
placed reliance on the statement of three people namely Bosch,
van
Rooyen and Richards, all of which pointed in the direction that the
plaintiff had not only come up with the idea of a sub-contracting
arrangement but was instrumental in convincing Richards about its
existence. This was certainly key in overcoming Richards's initial
reluctance and refusal to sign and approve the request for payment.
23.
In cross-examination it was never suggested to de Wet that he should
have doubted the reports made to him by Bosch, van Rooyen
and
Richards nor was it suggested that what he did was motivated by a
desire to cause harm or injury to the plaintiff or that he
dealt in
an unfair manner with the investigation that he was tasked with.
24.
On the other hand it is difficult to understand the plaintiff
intervening by advising Richards that a sub-contracting arrangement
existed. He had not appointed Coal Lite but in fact had requested
Fraser Alexander directly to undertake the work. If this was
so then
how could there conceivably have been a sub-contracting arrangement
between Coal Lite and Fraser Alexander when the plaintiff
according
to his own evidence, had approached Fraser Alexander directly. In
addition his involvement in the matter has not been
adequately
explained. If all he did was to convey to Richards what Bosh had told
him, then it begs the question as to why his intervention
was
necessary. If Richards had a problem with signing off the invoice,
then it was up to Bosch and van Rooyen to convince him otherwise,
and
not the plaintiff.
25.
There are other objective indications of an absence of malice on the
second defendant's part. These include that investigations
of this
kind fell within his normal duties, and that he had no relationship
with the plaintiff other than sharing a common employer.
26.
In
MOLEKO
(supra) the Court dealt with the requirement
of
animus injuriandi
as
follows (at paragraph 63):
'Animus
injuriandi
includes not only the intention to
injure, but also consciousness of wrongfulness:
'In
this
regard
ammus injuriandi
(intention)
means
that
the defendant
directed
his will to
prosecuting
the
plaintiff
(and thus infringing his
personality),
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
do/us,
namely
of consciousness of
wrongfulness,
and therefore animus injuriandi, will
be
lacking.
His
mistake
therefore
excludes
the
existence
of
animus injuriandi. '(see
Neethling, Potgieter and Visser (2005)
(Neethling's Law
of
Personality.
2nd Ed.) p. 181))
27.
In
RUDOLPH AND
OTHERS v
MINISTER
OF SAFETY AND SECURITY AND
ANOTHER
2009
(5) SA 94
(SCA)
,
the Court in dealing with this requirement said (at l OOE-G):
'The requirement
of 'malice
' has
been
the
subject
of
discussion
in
a number of cases in this court. The approach now adopted
by this court is that, although
the expression
'malice' is used, the claimant's remedy in a clai
m
for
malicioius prosecution
lies under the
actio
injuriarum
and
that what
has
to
be proved in this regard
is
animus injuriandi ...By
way offurther
elaboration in
Moleko it
was said:
'The
defendant
must thus not only have been aware of what he or
she
was
doing
in
instituting
or
initiating
the prosecution,
but
must
at
least
have foreseen
the possibility that
he
or
she
was
acting
wrongfully,
but nevertheless continued
to
act, reckless as
to
the
consequences
of
his
or
her
conduct
(dolus eventualis).
Negligence on
the
part
of
the
defendant
(or
would
I
say,
even gross
negligence)
will not
suffice).
(see
MINISTER
OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
v
MOLEKO
[2008]
3 All
SA
47
(SCA)
at paragraph 64)
28.
In my view it could hardly be said that following his investigations
and in particular the consultations he had with Bosch,
van Rooyen and
Richards, de Wet did not have reasonable and probable cause in
approaching the police. In addition it could not
be said that he
acted with the required
animus
- it was never suggested
or indeed argued that he did.
29.
In the circumstances it must follow that the plaintiff has not proved
the requirements of the absence of reasonable and probable
cause nor
the necessary
animus
injuriandi.
The claim must
accordingly fail.
ORDER
30.
The claim is dismissed with costs.
N
KOLLAPEN
JUDGE
OF THE HIGH
COURT
OF SOUTH
AFRICA
38012/2013
HEARD
ON: 13, 14 & 15 APRIL 2015
FOR
THE PLAINTIFF: ADV. S B JACOBS
INSTRUCTED
BY: B. J. MTSHALI ATTORNEYS (ref: BJM/NAM/L10521) FOR THE DEFENDANT:
ADV. H VAN DER MERWE
INSTRUCTED
BY: FLUXMANS INC. (ref: J Antunes/X23/121141) (correspondents - GROSS
PAPADOPULO & ASSOCIATES)