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[2015] ZAFSHC 33
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Gaobepe v Brits (A79/2013) [2015] ZAFSHC 33 (26 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No.: A79/2013
DATE: 26 FEBRUARY 2015
In the appeal of:
MORANODI JOSEPH
GAOBEPE
.........................................................................................
Appellant
And
CHRISTO
BRITS
..................................................................................................................
Respondent
CORAM: MOLEMELA, JP et JORDAAN, J
JUDGMENT BY: MOLEMELA, JP
HEARD ON: 17 NOVEMBER 2014
DELIVERED ON: 26 FEBRUARY 2015
INTRODUCTION
[1] This is an appeal against the whole
judgment of the Magistrate Court, Bloemfontein (trial court) in which
it found that the
appellant had maliciously prosecuted the respondent
and defamed him, thus rendering him liable for the payment of
damages.
APPLICATION FOR CONDONATION
[2] The appellant brought a substantive
application for condonation of the late prosecution of the appeal,
the late filing of the
record and the late filing of the heads of
argument. The respondent vigorously opposed the granting of
condonation in respect
of all procedural non-compliances on the part
of the appellant and maintained that the appeal had lapsed and ought
not to be re-instated.
[3] It is necessary to set out a brief
background in respect of the procedures to be followed once an appeal
has been noted. In
terms of rule 50(1) of the Rules of Court, an
appeal to the high court against a decision of a Magistrate in a
civil matter shall
be prosecuted within 60 days after noting the
appealing. Rule 50(4)(a) provides that the appellant shall, within
40 days of noting
the appeal, apply to the Registrar in writing and
with notice to all parties for the allocation of a date for the
hearing of the
appeal. Rule 50(7) provides that the record shall
contain a correct and complete copy of the pleadings, evidence and
all documents
necessary for the hearing of the appeal, together with
an index thereof. Rule 49(6)(6) provides that the court to which the
appeal
is made may, on application of the appellant, and on good
cause shown, reinstate an appeal which has lapsed.
[4] It is common cause that judgment
was handed down by the trial court on 24 December 2012. An appeal
was noted on 31 January
2013. The record shows that the appellant
filed a notice in terms of Rule 50(4) on 12 April 2013.
[5] The respondent’s basis for
opposing the granting of condonation is that there had been a
flagrant disregard of rules of
court was in many respects with no
acceptable explanation. The respondent argued that the appellant’s
application was defective
because it confined itself to the late
filing of the record and did not specifically pray for the
reinstatement of the lapsed appeal.
It was further argued that the
appellant’s application failed to deal with prospects of
success and failed to canvass the
element of prejudice. The
respondent pointed out that the record filed was incomplete as the
transcript of the proceedings of
the trial court was filed without
attaching all the documents that formed part of the bundle of
documents that were handed in during
the proceedings at the trial
court. The respondent contended that it would be impossible for the
court to adjudicate on the appeal
without having had the benefit of
perusing the outstanding exhibits, i.e. Nkuna’s statement
(item 7), a psychologist’s
report (item 25) and a newspaper
report (item 26).
[6] As stated before the trial court
delivered it judgment on 24 December 2012, some four and a half years
after the hearing of
the matter. The appellant noted an appeal on 31
January 2013. Proper compliance with the rules would have meant that
the applicant
should have applied for allocation of a hearing date
within 40 days after 31 January 2013, which would be on 12 March
2013. The
record shows that the relevant notice was filed together
with a transcribed record on 13 April 2013. The degree of lateness
in
respect of the prosecution of the appeal is thus a period of about
a month.
[7] The appellant’s counsel
contended that most of the delays on its part were directly linked to
the late delivery of the
judgment. It was pointed out that the
appellant’s litigation had, up to the conclusion of the trial,
been funded by the SAPS
due to the fact that the allegations against
him related to actions he had taken in execution of his duties as the
provincial commissioner
of the SAPS. By the time the judgment was
delivered, the appellant was well into his retirement and was no
longer based in the
Free State and this attorney experienced some
difficulty in contacting him. Furthermore, there had been a change in
the leadership
of the SAPS, with the result that the appellant had to
communicate with different personnel when enquiring whether the SAPS
would
be willing to finance his appeal and this also caused delays.
It was contended that as a result of that long delay, the original
court file was misplaced and the appellant was thus unable to find
the exhibits that were filed. He could only use the documents
that
were still in his attorney’s file. This, according to the
appellant, was the reason why an incomplete record, i.e. a
transcript
without exhibits, was filed.
[8] The two issues in respect of the
application for condonation are (i) whether condonation should be
granted for the late prosecution
compliances, and (ii) whether the
appeal can be re-instated notwithstanding the appellant’s
failure to file a complete record
of the proceedings.
[9] The trial court in its judgment
included a paragraph explaining its inordinate delay in handing down
the judgment. It essentially
attributed the delay to its workload,
lamenting the fact that it functioned in three different courts and
critical of the unacceptable
working conditions in the courts e.g.
the fact that the air conditioners were not in commission for a
period of 4 years. I have
to mention that all the reasons advanced
by the trial court, put together fall far short of a reasonable
explanation for delivering
a judgment four and a half years after the
hearing.
[10] It is trite that the granting of
condonation is not a mere formality. It is an indulgence which should
only be granted when
good cause has been shown. The trite factors
that come to the fore when such an application is considered include
the extent of
the delay, the adequacy of the explanation proffered
for the delay, the applicant’s prospects of success, the
respondent’s
interest in the finality of the judgment and the
prejudice that the parties may suffer as a result of the court’s
decision
to grant or not to grant the application. A court is not
expected to follow a check-list approach when considering the
aforementioned
factors. See Melane v Santam 1962 (4) 531 at 532C;
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company
Ltd 2013 [2] All-SA 251 (SCA) paras 11-13. In
the case of Turnbull-Jackson v Hibiscus Coast Municipality &
others the court
stated as follows:
“In this Court the test for
determining whether condonation should be granted or refused is the
interests of justice. Factors
that the Court weighs in that enquiry
include: the length of the delay; the explanation for, or cause of,
the delay; the prospects
of success for the party seeking
condonation; the importance of the issues that the matter raises; the
prejudice to the other party
or parties; and the effect of the delay
on the administration of justice. It should be noted that although
the existence of prospects
of success in favour of the party seeking
condonation is not decisive, it is a weighty factor in favour of
granting condonation”.
[11] In casu, the record was filed a
mere 12 days after the 60-day deadline. The delay in respect of the
application for allocation
for a hearing date is a period of less
than a month. We are therefore not dealing with a case where there
was a severe delay. With
regards to the appellant’s prospects
of success, I am satisfied that even though the appellant was not
detailed in its averments
pertaining to prospects, this is a case
where the prospects of success can readily be said to be reasonable
when consideration
is paid to the case that was put forward on behalf
of the respondent. A reading of the pleadings and the transcribed
evidence
reveals that the trial court did not confine itself to the
case that was pleaded, by so doing neglecting to take into account
the
purpose of pleadings as set out in a plethora of cases.
[12] The appellant further asserted
that the other reason for the delay in its prosecution of the appeal
was the delay in receiving
clarity form the appellant’s
employer regarding the funding of the appellant’s opposition of
the matter. The one month
delay was apparently caused by the fact
that the leadership of the respondent’s employer changed in the
four and a half months
period between the hearing of the matter and
the delivery of the judgment. The reasons advanced for the late
filing of the record
and the late prosecution of the appeal are
plausible, in my view.
[13] I am also satisfied that this
inordinate delay in the delivery of the trial court’s judgment
contributed significantly
to the appellant’s filing of a
transcribed record without the exhibits and to the lapsing of the
appeal. The respondent
fortunately attempted to reconstruct the
record by filing some of the missing exhibits. This meant that, by
the time the appeal
was argued, the only significant document that
had not been filed was the statement made by Nkuna. Suffice it at
this stage to
mention that it is evident from the transcribed record
that Nkuna’s statement was read into the record during the
trial.
I therefore cannot agree with the respondent’s
submission that this court will not be in a position to properly
adjudicate
the matter without having perused all exhibits that formed
part of the trial court’s record. This decision was not made
lightly
and due consideration was paid to the principles applicable
to an application for condonation.
[14] As I stated before, the inordinate
delay of the trial court contributed largely to the appellant’s
delay in filing the
record and prosecuting the appeal. This
ineptitude on its part should not serve to penalise the appellant.
In the case of Yunman
Engineering CC v Charter
2006 (5) SA 571
at 578
H-J the court held that the High Court has an inherent right to grant
condonation where the principle of justice and fair
play demand it
and where the reasons for non-compliance have been adequately
explained to the court.
[15] It is evident that the appellant’s
attorney also contributed to some delays by failing to paginate and
index the record
and failing to file his heads of argument timeously.
Compliance with the court rules is essential, as was correctly
pointed out
by the court in the case of Grootboom v National
Prosecuting Authority And Another
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) The following remarks made by the court
in that case at para 32 ring true:
“I need to remind practitioners
and litigants that the rules and courts’ directions serve a
necessary purpose. Their
primary aim is to ensure that the business
of our courts is run effectively and efficiently. Invariably this
will lead to the
orderly management of our courts’ rolls, which
in turn will bring about the expeditious disposal of cases in the
most cost-effective
manner. This is particularly important given the
ever increasing costs of litigation, which if left unchecked will
make access
to justice too expensive.”
[16] I am satisfied that despite the
difficulties experienced by the respondents in its preparation of its
heads as a result of
the non-indexing and non-pagination of the
record, the respondent was nevertheless in a position to file
comprehensive heads of
argument. I am therefore of the view that this
court should not adopt an overly technical approach that results in
the dismissal
of an otherwise meritorious appeal purely because of
relatively insignificant procedural non-con compliances. The
prejudice suffered
by the respondent with regards to these
non-compliances was ameliorated by the cost-order made against the
appellant when the appeal
was postponed on a previous occasion.
[17] Another factor that also counts in
the appellant’s favour is that despite the procedural
non-compliances on the part
of the appellant, it had always been
evident that he was pursuing his appeal. Significantly, the notice
of appeal was filed timeously
and the respondent thus became aware of
the appellant’s intentions early in the game. In Palmer v
Goldberg
1961 (3) SA 692
at 701 the court held that “relief
will more readily be granted when there is some deficiency or
irregularity in the noting
or prosecution of the appeal than if no
steps at all were taken in connection with the appeal.” I am
also satisfied that
the degree of lateness in the bringing of the
condonation application of this application for condonation is not
severe and ought
to be condoned in light of the strong prospects of
success.
[18] I am satisfied that all the
circumstances of this case warrant that this court should exercise
its discretion in favour of
the granting of condonation. The
authorities alluded to earlier in this judgment also support such a
conclusion. Condonation is
therefore granted and the appeal is
re-instated.
THE APPEAL
[19] I now turn to the merits of the
appeal. It is apposite to refer to the claim pursued by the
respondent by quoting verbatim
from the particulars of claim. The
relevant parts of the claim are canvased I paragraphs 4 – 9 of
the particulars of claim,
which provide as follows:-
“4. Die verweerder het gedurende
2003 tot Julie 2004 kwaadwillige en onbehoorlike ondersoeke gelas
teen die eiser welke ondersoeke
geen redelike substansie gehad het
nie maar slegs ingestel was uit hoofde van ‘n direkte of
indirekte motief deur die verweerder,
om die eister te benadeel.
5. Die verweerder het hierdie
ondersoeke opsetlik gelas met die bedoeling om die eiser se eer,
waardigheid en professionele status
leed aan te doen.
6. Hierdie opsetlike en kwaadwillige
handeling deur die verweerder was onregmatig.
7. Die verweerder het hierdie
benadeling van die eiser vererger deur die inhoud van sy
ongesubstansieerde ondersoeke wyd te publiseer
sonder inagneming van
nadelige effek op die eer, waardigheid en professionele status van
die eiser.
8. Die kwaadwillige en onregmatige
handeling deur die verweerder is die kosale gevolg van die skade en
nadeel wat die eister gely
het.
9. Die eiser het skade gely in die
bedrag van R99 990,00 (nege en negentig duisende nege honderd en
negentig rand) synde die skending
van sy goeie naam, eer en
profesionele reputasie.
[18] It is common cause that the
appellant had filed a special plea in terms of which he averred that
the trial court had no jurisdiction
to hear the matter due to the
fact that the respondent had wrongly cited him in his personal
capacity for conduct evidently committed
within the scope of the
appellant’s employment. The appellant had asserted that the
respondent ought to have joined the
Minister of Safety and Security
as a party in the matter. He argued that this was more so the case
because the respondent had
made the following concession: “Ons
het meer as een keer gesệ daar is geen dispuut by die eiser dat
mnr Gaobepe [appellant]
in sy amptelike hoedanigheid opgetree het
nie, daar is nie ‘n dispuut daaroor nie.” In the course
of dismissing the
special plea on the basis that the respondent had a
choice as to which defendant to pursue, the trial court remarked as
follows
in its ex tempore judgment. “As indicated by the
plaintiff, to a certain extent they have decided to continue with a
much
weaker matter against the defendant. It is perhaps better for
them to have joined both parties as defendants in this matter but
it
is their choice. They only want to proceed on specific grounds”
(sic). This special plea does not warrant any further
mention in this
judgment as the appellant’s counsel advised the court that the
appellant was no longer persisting with the
appeal against the
dismissal of the special plea.
THE ISSUE
[19] The crisp issue is whether the
respondent succeeded in proving on a balance of probabilities that
the appellant’s decision
to initiate an investigation into the
appellant’s conduct amounted to a malicious prosecution that
entitled the respondent
to payment of damages.
THE LAW
[20] It is clear from paragraph 4 of
the particulars of claim that the claim instituted against the
appellant was one for malicious
prosecution. In the case of Relyant
Trading (Pty) Ltd v Shongwe and the Minister of Safety and Security
Malan, AJA (as he then
was) said the following with regards to a
claim of malicious prosecution:
“5. Malicious prosecution
consists in the wrongful and intentional assault on the dignity of a
person comprehending also his
or her good name and privacy. The
requirements are that arrest or prosecution be instigated without
reasonable and probable cause
and with malice or animo inuriandi …”
It 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. Where reasonable and probable cause for an arrest or
prosecution
exists the conduct of the defendant instigating it is not
wrongful. The requirement of reasonable and probable cause is a
sensible
one: “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”.
[21] In the case of Minister of Justice
and Constitution v Moleko (i) the court order stated that in order
to succeed with a claim
for malicious prosecution, a claimant had to
prove the following: that the defendant set the law in motion
(instigated proceedings);
(ii) that the defendants acted without
reasonable and probable cause; (iii) that appellant was motivated by
malice – animo
inuriandi (iv) that the prosecution has failed.
ANALYSIS
[22] It is common cause that the
appellant and respondent both held legal qualifications and both held
senior positions in the South
African Police Services (SAPS). The
respondent was, during the period 2001 – 2005 the acting senior
provincial head legal
officer. He was, inter alia, responsible for
all civil litigation, labour matters in the department. He was also
responsible
for issuing instructions to junior legal officers
attached to the office of the Area Commissioner. The respondent was,
during
the same period, appointed as the Commissioner of Police in
terms of a fixed term employment contract.
[23] It is not disputed that the
respondent’s tasks included giving written legal opinions
within the department and giving
instructions to the state attorney,
attending consultation with SAPS members, rendering expert legal
support, and attending court.
[24] The provincial office of SAPS was
involved in a number of lawsuits. One of these lawsuits related to
an incident that occurred
in Frankfort, in which police officials
were implicated in the killing of someone. The officers in question
were subsequently arrested
and detained. They were then suspended by
the SAPS. They in turn instituted proceedings for unlawful arrest and
detention against
the Minister of Safety and Security. This case
(“Steenbergen case”) was subsequently heard in the Free
State High Court.
On the date of the hearing of that matter, the
respondent had certain discussions with the respondent’s
counsel. Some officials
of the SAPS who formed part of the team which
gave instructions to the SAPS’s counsel were also present at
the High Court.
Mr Nkuna and Mr Mofokeng were part of this team.
[25] It is clear from the respondent’s
evidence and that of one of his witnesses, Mrs Brits, that at least
one of these officials,
viz superintendent Mofokeng was very unhappy
with the respondent’s involvement in the legal team’s
discussions regarding
the Steenberger matter. The appellant testified
that superintendent Mofokeng and Superintendent Nkuna subsequently
submitted written
statements in terms of which they complained that
the respondent had unduly tried to influence the outcome of the
Steenberger case
by proposing a settlement that was in favour of the
police officers implicated in the assault. He then asked one of his
colleagues
to conduct an investigation into the matter.
[26] The respondent subsequently learnt
about the investigation and directed enquiries to the SAPS head
office demanding to be advised
of the reasons for the investigation.
The SAPS head office in turn wrote a letter to the appellant asking
about the progress of
the investigation, to which the appellant
responded as follows:
“We are convinced that a prima
facie [case] of a grievous misconduct can be made against Senior
Superintendent C Brits. When
he was giving a legal opinion on the
possible suspension of Supt H W Steenberger and Others, instead of
dealing with the case in
such a way that a fair and just decision be
made on the matter, he advocated for the alleged members and not
representing the management
case whatsoever, suggesting that we
should not suspend members … but senior Superintendent Brits
was there and not being
on the side of management but on the side of
the accused persons … Instead of standing the Area
Commissioner by on the
matter he was threatening them of the
consequences which was never the case at the end… I have lost
trust in him and I
am afraid to use him any further for any issue
whatsoever even on litigation matters. I cannot keep on watching my
back always
and for that matter it means that his presence in this
office is of no use because of the broken trust and relationship
between
both of us. I doubt and I don’t think that this will
improve in the near future because he since registered a grievance
and this grievance is appearing for the second time for arbitration
and is still pending, Snr Sup C Brits will continue fighting.”
[27] It is common cause that subsequent
to the afore-mentioned letter, superintendent Nkuna was asked whether
he was prepared to
submit a written statement. He stated that he was
not prepared to make a statement because he was not a complainant in
the matter.
On the 2nd July 2004 the respondent a letter was directed
to the respondent, informing him that SAPS had decided not to
institute
any disciplinary proceedings against him. The respondent
then decided to institute action against the appellant.
[28] The respondent testified during
the hearing and called witnesses. These witnesses testified at
length about the tension and
animosity between the appellant and the
respondent. They also testified about the grievances lodged by the
respondent against the
Minister of Safety and Security over his
non-appointment to a director’s post in the legal department.
The respondent believed
that the letter sent by the appellant to the
SAPS head office was behind the decision to overlook him when the
appointment of a
director was made. The grievance that the respondent
had lodged was subsequently arbitrated and the outcome was in his
favour.
The dispute was referred to the Labour Court and it ordered
that he be retrospectively appointed in that post.
[29] The appellant testified that he
initiated into the respondent’s conduct after received
complaints about his interference
in the consultations regarding the
Steenberger case. He had received these complaints from a certain Mr
Nkuna who was the Area
Commissioner of the Eastern Free State. He had
also received a complaint about the same conduct from a certain
senior superintendent
Mofokeng, who was a legal officer in the
Eastern Free State region. At that stage the appellant was the
provincial commissioner
and the respondent was working at the
provincial office legal service at that stage. The respondent was
occupying a junior post
to that of the appellant.
[30] The appellant in his testimony
stated that Mr Nkuna’s complaint was in the form of an
affidavit dated 10 March 2003.
It is evident from p 308 Volume 4 of
the record that the document in question was one of the documents
that was in a bundle of
documents that served before the trial court.
Parts of this statement were read into the trial court’s
record. In this affidavit
Mr Nkuna is said to have asserted that the
respondent had approached counsel that represented Steenberger and
his colleagues and
had negotiated for an out of court settlement as
well as the immediate reinstatement of the said police officers.
[31] The appellant in his testimony
also read a statement purportedly made by Mr Mofokeng into the
record. This document, too,
was part of the bundle of documents that
served before the court a quo. It is evident from p 313, Volume 4 of
the record that
the document in question was read into the record
without any objection from the respondent’s counsel. In this
document
Mr Mofokeng was alleged to have stated that the respondent
interfered in the high court despite the fact that he did not form
part
of the team that had consulted on behalf of the Minister of
Safety and Security. The following part of Mr Mofokeng’s
statement
was read into the record; “It was surprising why
senior superintendent Brits was attending the hearing and trying to
give
advice which were going to be detrimental to the respondent
[SAPS].”
[32] The appellant testified that it
was at the strength of the two statements made by Mr Nkuna and Mr
Mofokeng, respectively, that
he decided to assign the matter to
senior superintendent Mofokeng for an investigation to be initiated
against the respondent “so
as to ensure that the matter is
addressed and dealt with properly.” He held the view that if he
did not do so, he would have
failed to do his duty and would have
been charged with dereliction of duty. He testified that the
investigation started around
March 2003, within 2 weeks of receipt of
the affidavits in question. The appellant maintained that having
perused that affidavit,
he was of the view that an investigation had
to be conducted.
[33] The respondent averred that the
appellant’s failure to call Nkuna and Mofokeng as witnesses
resulted in him failing to
show that Nkuna and Mofokeng had indeed
made the statements in question and had consequently failed to show
any justification for
initiating or persisting with the
investigation. The appellant’s counsel argued that the
respondent was being disingenuous,
as Mr Nkuna’s affidavit, in
particular, had never been placed in dispute. Having perused the
record, I agree that various
parts of the record suggest that the
existence of a statement allegedly made by Nkuna was not disputed. It
was clear from both
the respondent’s evidence and that of Mrs
Brits that both Mr Nkuna and Mr Mofokeng were dissatisfied with the
respondent’s
participation in the consultations that took place
at the High Court pertaining to the Steenberger case. Significantly,
it is evident
from the record that both Mr Nkuna and Mr Mofokeng’s
statements were part of the respondent’s own bundle of
documents
and that the parties had agreed on the authenticity and the
truthfulness of the documents that were in the bundle. See paras [4]
and [143] of the trial court’s judgment.
[34] The following exchange between the
appellant’s counsel and the respondent, transcribed on p 235 –
238 line 19 of
the record is very significant:
“Q: Looking at the existing
circumstances, more specifically your application or the applicants’
founding papers having
found with an opinion prepared by yourself and
also looking at the statements made by Nkuna and Mofokeng, do you not
think it was
reasonable of the provincial commissioner to then
investigate the matter thoroughly?
A: Soos ek gesê het ‘n
ondersoek is nie ‘n probleem nie. Die manier hoe jy dit doen
dit is waar die probleem
sê en ek het verduidelik wat ek van ‘n
senior persoon of as a persoon sou gedoen het.
Q: Your worship if we can go to
document no. 3 of the bundle of documentation, without wasting the
court’s time you would
confirm with me that this letter was
coming from the deputy national commissioner L Oeloff?
A: Dit is so.
Q: If you can go to the front page of
the letter, you would agree with me that the letter was addressed to
all provincial commissioners.
A: Dit is reg.
Q: So then would you agree with me that
this letter was therefore addressed to the defendant as we, as he was
the provincial commissioner
at that stage?
A: Daardie tyd, ja.
Q: If you look in paragraph 2 of the
letter, if you can read paragraph 2 for me?
A: “An integral part of the right
to manage is the power to prescribe standard of conduct for employees
and to initiate disciplinary
steps against offenders, South African
Police Service Discipline Regulations 1996, adhere to these
principles and that they hold
the national and the provincial
commissioners responsible for maintaining discipline nationally and
in their respective provinces.
Commanders are also required to take
disciplinary steps against members against whom there is reasonable
suspicion that they have
committed misconduct. It is therefore clear
in the context of the South African Police Service that apart from an
inherent responsibility
to maintain discipline, commanders also have
a duty to do so. I intend holding commanders to this duty.”
Q: Would you then agree with me that in
terms of the national commissioner of police in South Africa the
defendant was, as part
of his integral management and powers
prescribed, he was also expected to maintain discipline with the
respective provinces [indistinct]?
A: Natuurlik.
Q: Would you then agree with me that
also, I think it is line no. 4 from the end of that paragraph where
it reads there, I will
read that one. It says there is a reasonable
suspicion that they have committed misconduct. It is in the same
paragraph or it
starts with “commanders.”?
A: Oh ja, now I am with you.
Q: Let me read that for the record:
“Commanders are also required to take disciplinary steps
against members against whom
there is reasonable suspicion that they
have committed misconduct.” Having read the letter and having
ha a better understanding
of the facts that existed on the ground as
far as the defendant was concerned, I am sure you know what facts
were those, the opinion
being found in wrong papers and the defendant
disputing that he had given you the right to give an opinion, that
anyone had been
authorised to give you the right to give an opinion
and having received the complaint as per 7 and 8, being the
affidavits from
Assistant Area Commissioner Nkuna and legal head in
that area, Mofokeng. Now looking on all those factors that existed,
do you
not think there was a reasonable suspicion that you might have
conducted misconduct to the point where the commissioner would have
to investigate that?
A: Daar is twee dinge wat mnr. Qwelane
nou aangeraak het. Die eerste is die gedeelte van “commanders”
wat hy inglees
het, die interpretasie van die paragraaf is dat
‘commanders’ is die direkte “commander” van
‘n “employee”
– in my geval sou dit Mokwaledi
wees. Die tweede aspek is ek het verduidelik dat met hierdie
bewerings op rekord, moes die
proses gewees het – en dit is in
terme van die regulasies – die betrek van die “commander”
van die werknemer
en dat die hantering van hierdie bewerings teen
hierdie senior offisier.
Q: I will come to that point later but
the defendant again, his evidence is in terms of the Act and the
disciplinary regulations
of the SAPS he had an authority, if there is
a suspicion of that nature, to initiate an investigation. Do you
have comments on
that?
A: Enige persoon kan ‘n ondersoek
inisieer of ‘n klagte lê, maar dan skryf die regulasies
voor hoe dit vandaar
af gehanteer moet word.
Q: So then would you agree with me that
the provincial commissioner being the defendant, he had also a right
to initiate an investigation
in the matter?
Solank dit binne die riglyne van die
wet plaasvind, ja.” (My underlining for emphasis).
[35] It is clear from paragraph 4 of
the particulars of claim that the cause of action was that of
malicious prosecution. It is
also clear from various parts of the
record that that is indeed the case that was presented to the court.
The following remarks
made by the trial court are relevant. “As
indicated by the plaintiff, to a certain extent they have decided to
continue with
a much weaker matter against the defendant. It is
perhaps better for them to have joined both parties as defendants in
this matter
but it is their choice. They only want to proceed on
specific grounds”.
[36] It is clear from the authorities
mentioned above, that in order to succeed in his claim for malicious
prosecution, the respondent
would have to show that ‘proceedings’
were instituted. It is common cause that no disciplinary proceedings
were instituted
against the respondent and consequently there was no
‘outcome’ in favour of respondent. Only an investigation
was
initiated at the instance of the appellant. With regards to the
investigation, it is interesting to note that the respondent in
the
exchange quoted earlier in the judgment, acknowledged the need for an
investigation to be initiated. Interesting enough, the
trial court
also acknowledged the need for an investigation to be conducted. I am
of the view that an investigation does not equate
to institution of
proceedings. In paragraph 12 of its judgment, the trial court seems
to have based his conclusion that the investigation
amounted to the
institution of legal proceedings purely from the fact that the
Disciplinary Regulations of the SAPS, in terms of
which the
investigation was initiated, were gazetted. This conclusion has no
legal basis. I am thus satisfied that the respondent
failed to
satisfy the first requirement. As no proceedings were instituted, it
goes without saying that there could not have been
any ‘outcome’
that is in favour of the respondent. This means that he also failed
to satisfy the second requirement.
[37] It is evident from the extract of
the evidence quoted earlier that the appellant was the respondent’s
senior and that
he was entitled to investigate conduct allegedly
committed by his juniors. The respondent conceded that an
investigation was necessary.
On the appellant’s own version,
Mr Mofokeng had expressed dissatisfaction with his involvement in the
Steenberger matter.
[38] As stated before, it was the
respondent who provided the trial court with the affidavit of Area
Commissioner Nkuna and the
statement of superintendent Mofokeng in
its bundle of documents. His counsel then confirmed the status of
the bundle of documents
by stating that both authenticity and
veracity of the contents were admitted. The fact that Mr Mofokeng
indicated in 2004 that
he did not want to make a statement as he was
not a complainant in the matter did not equate to a disavowal of
having made a statement
before. I agree with the appellant’s
counsel that what is important here is whether Mr Nkuna and Mr
Mofokeng made statements
complaining about the respondent’s
conduct. This does not seem to have been in dispute during the
proceedings at the trial
court. My conclusion that this aspect was
not in dispute is fortified by the fact that the respondent, in his
own letter directed
to the information officer, (which letter formed
part of the record), stated as follows: “During June 2002 I
was at court
when this matter was heard. After the proceedings, Snr
Supt Mofokeng and Commissioner Nkuna submitted statements to the
provincial
commissioner alleging that I personally assisted the legal
team of Steenberger.” (My underlining for emphasis).
[39] In the case of Minister of Justice
v Moleko the following was stated with regards to the requirement of
malice:
“Reasonable and probable cause,
in the context of a claim for malicious prosecution, means an honest
belief founded on reasonable
grounds that the institution of
proceedings is justified. The concept there-fore involves both a
subjective and an objective element.
‘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.”
[40] “Malice” was explained
as follows in the case of Rudolph and Others v Minister of Safety and
Security :
“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 claim for
malicious prosecution lies
under the actio injuriarum and that what
has to be proved in this regard is animus injuriandi. See Moaki v
Reckitt and Colman (Africa)
Ltd and Another
1968 (3) SA 98
(A) 1034
at 104E; and Prinsloo and Another v Newman
1975 (1) SA 481
(A) at
492A-B. By way of further 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, I would say, even
gross negligence) will not suffice.’
[Paragraph 64.]”
[41] The requirement for malicious
arrest and prosecution that the arrest and prosecution be instituted
“in the absence of
reasonable and probable cause” was
explained as follows in Beckenstrater v Rottcher and Theunissen :
“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.”
[42] I am satisfied that the evidence
adduced by the respondent does not pass muster in respect of the
requirements mentioned in
the cases alluded to in this judgment. On
the contrary, the extracts of evidence quoted above show that the
appellant had reasonable
and probable cause for initiating the
investigation against the respondent. The trial court seems to have
somehow conflated malice
with motives. The fact that the appellant
subsequently stated there was a prima facie case against the
respondent was obviously
based on the statements made by Mr Nkuna and
Mr Mofokeng, who were very senior members in the SAPS. It would,
under the circumstances,
have been folly for him to summarily
disregard their complaints without investigating the matter. In
particular, paragraph 7 -
9 of Mr Mofokeng’s statement made
serious allegations that of impropriety against the respondent which,
in my view, would
have warranted to be investigated notwithstanding
that the respondent’s duties entailed the giving of legal
advice. This
paragraph is canvassed in paragraph 144 of the trial
court’s judgment and reads as follows:
“7. It was surprising why senior
superintendent Brits was attending the hearing and trying to give
advice which were going
to be detrimental to the respondent.
8. It is further questioned whether
senior superintendent Brits had informed his seniors that he would be
attending the said hearing
and whether his seniors knew that he had
to give some legal assistance to the applicants.
9. According to my observation, senior
superintendent Brits had interest in the matter as such, it can be
said that he was not bona
fide in his approach, as his advice would
have had far-reaching negative results to the administration of the
law and the perception
of the community regarding justice,
particularly that of Frankfort if the applicants were re-instated.”
[43] In my view, the respondent failed
to adduce evidence that showed on a balance of probabilities that the
appellant had no reasonable
and probable cause for initiating the
investigation. This is especially so because the respondent conceded
that an investigation
was necessary and his counsel conceded that the
appellant acted in his official capacity. The appellant that there
was a prima
facie case against the respondent must be taken in its
proper context, namely that statements had been made to the appellant
accusing
the respondent of some impropriety in his involvement in the
Steenberger case, that the respondent in his own letter (attached to
the summons) referred to the statements made by Nkuna and Mofokeng,
and that the appellant made that statement in response to a
specific
enquiry made by the national office of the SAPS. It is clear that Mr
Nkuna’s statement that he would not make a
statement as he was
not a complainant in the case was only made after the appellant had
communicated his belief that there was
a prima facie case. Soon
after Mr Nkuna’s email, the respondent was advised that no
disciplinary steps would be taken against
him. Under such
circumstances, I am satisfied that the respondent failed to prove
malice.
[44] My perusal of the trial court’s
judgment leaves me with the impression that it conflated the
successful outcomes of the
grievances lodged by the respondent
against the SAPS with the dispute it had to resolve and concluded
that the appellant had acted
maliciously towards the respondent.
Little regard was paid to the fact that such arbitration proceedings
were directed at the
department and various officials involved in
staff recruitment and were not directed at the appellant’s
exclusive conduct.
The successful arbitrations against the department
can, in my view, have no bearing on a claim made against the
appellant in his
own personal capacity, as is the case in this
matter.
[45] For the reasons alluded to before,
I am satisfied that the trial court erred in finding that the
respondent had succeeded in
proving its case of malicious
prosecution. The trial court proceeded to make findings that are
related to a defamation claim even
though that was not the case the
appellant was called upon to meet. The trial court clearly failed to
confine itself to the case
that was pleaded and clarified by the
parties during the hearing. That the appellant always understood the
claim to be that of
malicious prosecution only is evident from the
record, which shows that after the closure of the respondent’s
case the appellant’s
counsel applied for absolution from the
instance on the basis that the respondent had not proven a claim of
malicious prosecution
and that he had canvassed matters that related
to a claim of defamation even though same had not been proven. This
clearly constitutes
a material misdirection. Even if it were to be
accepted that the respondent had, in addition to the claim of
malicious prosecution,
also pursued a claim of defamation, then the
same facts that served to show that the respondent had not proven
malice would be
the same facts that would serve to show that the
appellant had refuted the requirement of unlawfulness. In so far as
the trial
court found that the appellant had not discharged that
onus, it erred. The trial court’s findings thus fall to be set
aside.
[46] With regards to costs, I am of the
view that there is no justification for deviating from the ordinary
rule that costs are
to follow the result. In the result the following
order is made:
1. The appeal is upheld with costs.
2. The order of the trial court is set
aside and replaced with the following: “The plaintiff’s
action is dismissed with
costs.”
M. B. MOLEMELA, J
I concur.
A. F. JORDAAN, J
On behalf of the appellant: Mr. D.
S. Qwelane
Instructed by:Qwelane Theron &
Van Niekerk
BLOEMFONTEIN
On behalf of the respondent: Adv. J.
Nortjé
Instructed by: Neuhoff Attorneys
BLOEMFONTEIN