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[2015] ZAECBHC 32
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Sibuqashe v Minister of Police and Another (527/2011) [2015] ZAECBHC 32 (22 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE HIGH
COURT, BHISHO)
CASE NO: 527/2011
In the matter between:
KANYA
LANGLEY SIBUQASHE
Plaintiff
and
MINISTER
OF POLICE
First
Defendant
DIRECTOR
OF PUBLIC PROSECUTION
Second
Defendant
JUDGMENT
MBENENGE J:
Background
[1]
In the afternoon of 5 June 2009, at about 17h00, Mr Lwazola
Christopher Macklein (Macklein), a
resident of NU 17, Mdantsane, fell
victim to an armed robbery. On this fateful day, he had been
visiting his girlfriend at
NU1, Mdantsane, driving an Avis hired
car. He alighted from the car after parking in front of the
yard to his girlfriend’s
place. Whilst knocking at the
door to his girlfriend’s flat three suspicious looking men,
wielding firearms, appeared
in the scene ostensibly enquiring about
the whereabouts of “
Alfred.
” Macklein was
still engaging them on the purpose of their visit when these men
suddenly demanded the keys to the car
he was driving, which he
surrendered. He was thereupon subjected to a search, with the
strangers finding out where his firearm
was. He had none in his
possession. His wallet and cellphone were taken away from him.
A fourth strange man appeared
in and joined the scene.
[2]
Macklein was caused to board the car, which his captors drove to the
outskirts of Berlin, a small
town outside of Mdantsane Township.
As the car was being driven, the captors were openly discussing, in
Macklein’s
hearing, how he was to be killed. One of the
captors, referred to as “
Maximum,
” volunteered to
execute the plan. They drove till they reached an open area in
the vicinity of Mqongweni Locality,
just beyond Berlin. He was
directed to alight from the car, and to crawl on his knees, which he
did. He observed that
the spot they were on was a bridge.
The captors told him to say his last prayer. When he was
preparing for that,
Maximum
, who had all the while been
pointing a firearm at him, was distracted whilst requesting his
companions to supply him with hand
gloves. Macklein took
advantage of the distraction and dived over the bridge. Upon
landing on hard ground below the
bridge he initially felt dizzy.
After he had regained composure, and with the aid of a
passerby, Macklein resorted to nearby
houses and eventually got to be
at Berlin police station. The police at Berlin took him to
Mdantsane NU1 police station.
That, in a nutshell, is the
doleful tale of how Macklein got to be in but escaped the jaws of
death.
[3]
In no time, thereafter, the tentacles of the law had engulfed at
least one of the captors, who
got to be arrested and detained at
Cambridge police station in connection with the robbery, after
Macklein had laid a robbery complainant.
The Avis hired car was
also recovered. The robbery became the subject of
investigations by members of the South African Police
Service (the
Service), with Constable Bhenguza (Bhenguza) taking the lead in the
investigations. It was during the course
of those
investigations that the plaintiff was arrested in the afternoon of
Saturday, 6 June 2009 and subsequently detained at
NU1 police station
holding cells. The plaintiff ended up facing charges of robbery
and kidnapping, which were, in the course
of time and after the
plaintiff had appeared in court on diverse occasions, withdrawn.
Introduction
[4]
The plaintiff now seeks to recover damages from the defendants, sued
in their official capacities.
The particulars of the
plaintiff’s claim is not a model of clarity. Claim A is
predicated on the allegation that
the police “
had
no reasonable or probable cause to arrest the plaintiff
”
,
which classifies that part of the action as one for malicious arrest
and detention, a cause of action clearly distinct from unlawful
arrest and detention.
[1]
Claim B has been couched as being for loss of income, whilst claim C
is for malicious prosecution.
[5]
During his address, at the commencement of the trial, Mr Simoyi, who
appeared for the plaintiff,
referred to claim A as being for
“
unlawful
arrest and detention.”
The
incongruity emerging from what is alleged in the pleadings and what
was stated in the opening address made me enquire from Mr
Simoyi as
to precisely what the nature of claim A is.
[2]
The plaintiff, through Mr Simoyi, committed himself to a claim for
unlawful arrest and detention, adding that the detention
claim was
being pursued in consequence of the Court finding that the arrest was
unlawful. On further debating the matter
with Counsel,
consensus was reached that the claim for loss of earnings was more a
matter to enquire into at quantum stage.
[6]
At the instance of both parties, the issues of liability and quantum
were separated, with liability
falling to be dealt with first and the
issue of quantum standing over for determination at a later stage, in
terms of rule 33 (4)
of the Rules of Superior Court Practice.
[7]
The defendant is resisting the action. It has been pleaded that
the arrest of the plaintiff
without a warrant occurred in terms of
section 40(1)(b) of the Criminal Procedure Act
[3]
in that the plaintiff had been reasonably suspected of having
committed Schedule 1
[4]
offences
namely, robbery and kidnapping. The resulting detention, so it
has been pleaded, was lawful, having been a sequel
to a lawful arrest
and, on subsequent occasions, by virtue of a court order. It
has further been pleaded that the members
of the Service concerned
did not set the law in motion in that the decision to arraign the
plaintiff on charges of robbery and
kidnapping was taken by a member
of the National Prosecuting Authority based on documents enclosed in
the docket, acting in good
faith, with the police having played no
role at all in taking that decision.
[8]
It is to the evidence tendered by the parties and their witnesses
that one must now turn before
a pronouncement on the issues at hand
can be made.
Evidence
[9]
The plaintiff testified that on Saturday, 6 June 2009, between 15h30
and 16h00, he just parked
his motor vehicle, a BMW, outside of Spar
Supermarket at NU 1, Mdantsane. He went into the supermarket to
transact, and in
no time emerged therefrom and returned to his car.
When about to start his car, two armed policemen hurriedly approached
him after blockading his way. The police were in civilian gear,
but drove a marked vehicle. They ordered the plaintiff
to get
out of his car and board the rear of the van they were driving.
At this point members of the public rallied around
the scene, curious
and looking on to see what was happening. The crowd did not
seem friendly towards the police. The
police uttered no word
and drove to NU1 police station with the plaintiff put into the back
of the van.
[10]
Upon arrival at the police station Bhenguza informed the plaintiff
that he was under arrest for an armed
robbery that was said to have
taken place at NU 3, Mdantsane, involving the hijacking of a car on
the previous day, 5 June 2009,
at around 17h00 and 18h00. The
plaintiff immediately denied involvement in the alleged robbery,
stating that at the time
the alleged robbery occurred he had been at
Pullins Store, King William’s Town, where he worked. He
testified that
he informed Bhenguza that he had knocked off duty at
around 18h00. According to the plaintiff Bhenguza said there
was no
need for the plaintiff to give a long explanation as he
(Bhenguza) was in possession of information sufficiently pointing to
his
involvement in the robbery. Bhenguza said he had been
informed that the plaintiff, referred to as “
Ma-Gents
”,
had been involved in the robbery. The information was said to
have been sourced out by a certain young man, Athenkosi
Faltein
(Faltein), who had already been arrested and detained for his
involvement in the robbery. The plaintiff’s request
that
arrangements be made for Athenkosi to see him, lest there was
mistaken identity, was not heeded by Bhenguza. Another
policeman, whose name turned out to be Maja, also tried persuading
the plaintiff to own up the robbery, to no avail.
[11]
Maja left the police station bent on verifying some information
relative to the robbery and indicating that
if, in the interim, he
satisfied himself about the plaintiff’s involvement in the
offence the plaintiff would be incarcerated.
On his return,
Maja said there was no need for them to take him to Faltein for the
verification sought by the plaintiff as he (Maja)
had gained
sufficient information of the plaintiff’s involvement in the
robbery. The plaintiff said Maja had called
him by name
(“
Khaya
”) during their interaction. The
plaintiff later established that Maja knew him as they used to drive
similar BMW cars,
which they used to take to the same service station
for fixing. Before being locked up, the plaintiff requested the
police
to arrange for the safe keeping of his car, which was done.
[12] On
the following morning, testified the plaintiff, he overheard a voice
calling him out by name from outside
the cells where he had been
detained. He went to the cell door, which was unlocked.
He saw three people, two in civilian
attire and the other in police
gear conversing among themselves. He was the subject of the
conversation. One of these
men required to know from the other
whether the plaintiff was the one who had robbed him, which was
answered in the negative, with
the man to which the question was
directed stating that he knew the persons who robbed him and that the
one that had been pointed
to him (the plaintiff) was not the one.
[13]
The plaintiff appeared in court on the following day, Monday 8 June
2009. He made means to meet
Faltein. During that
meeting, which occurred in the court’s holding cells, Faltein,
upon seeing the plaintiff, denied
that he had told the police that
the plaintiff was Ma-Gents and that he (the plaintiff) had been
involved in the robbery.
The plaintiff urged Faltein to inform
the Magistrate accordingly when the matter was being dealt with.
When the matter was
called the accused (at that stage the plaintiff
and Faltein) was informed that the case would be postponed for a bail
hearing.
The plaintiff said he raised his hand and informed the
Magistrate that he had been arrested together with persons who
mistook him
for a “
Ma-Gents
”. He was stopped
from advancing this contention, with the Magistrate indicating that
the contention raised was a matter
for another day.
[14]
Approximately a week thereafter, Faltein and the plaintiff appeared
in court. This time a further co-accused,
Andisiwe Mgweshe, had
been added. According to the plaintiff, Mgweshe, too, denied
that the plaintiff had been involved in
the robbery. The
plaintiff urged both Mgweshe and Faltein to inform the court that he
had no complicity in the robbery.
The matter was once again
postponed for a bail hearing, with the plaintiff having since secured
the services of a legal representative.
[15]
Subsequent thereto, the plaintiff met Bhenguza and informed him that
his co-accused were exculpating him
from involvement in the robbery.
Bhenguza responded that he would arrange for an identification parade
to be held.
The outcome of the parade would determine the fate
or fortune of the plaintiff.
[16]
The identification parade was eventually conducted at Wesbank
Correctional Centre on 26 June 2009.
Faltein and the plaintiff
were part of the parade. Macklein entered the parade room and
pointed at Faltein and the plaintiff
as having been the persons that
robbed him.
[17] In
the interim, a fourth person affectionately known as “
Maximum
”
was arrested in connection with the robbery. The plaintiff made
means to see Maximum. Upon seeing the plaintiff,
Maximum, too,
denied that the plaintiff had been involved in the robbery, saying he
knew who the real culprit was. Maximum
pledged to inform the
court that the plaintiff had not been involved in the robbery.
The plaintiff conveyed this information
to Bhenguza, but that, too,
fell on deaf ears.
[18]
After the bail proceedings had been conducted and concluded, charges
that the plaintiff had faced were withdrawn,
due to insufficiency of
evidence.
[19]
When the plaintiff was being cross examined it was put to him that
Faltein had told Bhenguza that he did
not know Ma-gents, but that
Ma-Gents was the owner of a white BMW that had been burnt and got to
be parked at Yako’s garage
in Mdantsane. The plaintiff
conceded that it might be possible for one referring to Ma-Gents as
having been the owner of
a BMW that was burnt and parked at Yako’s
garage to be understood as referring to him.
[20] It
was further put to the plaintiff under cross examination that Faltein
had told Bhenguza that he (Faltein)
together with a person known as
Ma-Gents, another known as Andisiwe and another known as Maximum had
committed the robbery and
hijacking. Faltein had described
Ma-Gents as being the owner of the white BMW that had been burnt and
parked at Yako’s
garage. It was further put to the
plaintiff that Bhenguza had told Faltein that he knew the owner of
the BMW that had been
burnt and parked at Yako’s garage.
On 6 June 2009, Bhenguza saw the person he believed to be Ma-Gents
and whose car
had been burnt and parked at Yako’s garage.
That was the upshot of the version of the police on the strength of
which
the plaintiff was suspected of committing the subject robbery.
[21]
Macklein was the next to be on the witness stand. He testified
to how he suffered at the hands of his
captors, who robbed him of the
car he had hired from Avis. The encounter with the captors is
dealt with more fully in the
background part of this judgment.
After Macklein had reported the robbery to the police at NU1 police
station Constable Maja
(Maja) accompanied him homeward on the same
night of the incident.
[22] In
the morning of 6 June Maja returned to Mackein’s place and
picked him up to NU1 police station to
pursue further investigations
in connection with the robbery. Macklein said he next
interacted with the police on Sunday
7 June, after Maja picked him up
in the same morning. They drove to NU1 police station. On
arrival there he was led
to the back of the holding cells.
Whilst he stood not far from the door leading to the cells a
policeman who had been talking
to Bhenguza called out the plaintiff.
He did not know the plaintiff’s name, but knew him by sight as
he used to see
him driving his BMW. He was asked if he could
point out the person who had robbed him. This was answered in
the affirmative.
Meanwhile the plaintiff had been caused to be
within view. He was asked what he had seen from where he had
been standing.
He said he had seen a person that had been
caused to appear whom he did not know.
[23]
Macklein’s testimony also related to an identification parade
held with a view to affording him the
opportunity to identify his
captors. Macklein said on that day he was picked up by
Mazitshana and Kwenene from his workplace
at 13h00 having been
invited to the parade which was scheduled for 14h00. He was
taken to Westbank Correctional Centre.
On arrival there he was
handed over to a certain prison warder. The parade proceeded.
He first identified Faltein.
He thereafter also pointed out the
plaintiff. He said during discussions he had with Bhenguza he
had been instructed to point
out the plaintiff so as to link him to
the name Ma-Gents. He said he had not agreed to doing that, but
eventually succumbed
to doing it due also to a mysterious call he had
received from a certain lady who claimed to be the plaintiff’s
girl friend
who had gotten to be in possession of his (Macklein’s)
cell phone number. He had requested Bhenguza to investigate
this, but at the time the parade was being conducted nothing had been
unleashed regarding how she got to be in possession of Macklein’s
cellphone number.
[24]
Macklein further testified that after he had pointed out the
plaintiff he raised his hand, turned towards
Mr Mdalana who was
conducting the parade, and informed him that he had erred in pointing
out the plaintiff as having been Ma-Gents.
He told Mdalana he
had been instructed by Bhenguza to point out the plaintiff.
[25]
Under cross examination, Macklein was not able to explain why his
version and that of the plaintiff regarding
what occurred at the
parade differed. Macklein’s evidence that he informed
Mdalana that he erred in pointing out the
plaintiff as having been
one of the robbers did not accord well with that of the plaintiff.
He was hard put to explain this
incongruity.
[26] It
was further put to Macklein that the parade had taken place in the
morning, and not in the afternoon,
but Macklein maintained that it
had taken place in the afternoon, yet there was ample documentary
evidence pointing to the parade
as having been conducted in the
morning.
[27]
Upon the closure of the plaintiff’s case, Bhenguza was called
to testify. He was the investigating
officer in the related
criminal case. He resigned from the Service and is now pursuing
a career in business. The relevant
docket was allocated to him
on 6 June 2009. He thereafter received information that there
were suspects who had already been
incarcerated in connection with
the subject robbery at Cambridge police station. He was also
informed that the car of which
the complainant had been robbed had
also been recovered.
[28]
When the docket was received the only statement that had been
enclosed therein was that of Macklein who recounted
how he had fallen
into the hands of robbers. Bhenguza said he proceeded to
Cambridge police station. One of the persons
he interviewed
there was Faltein. Faltein owned up the robbery and implicated
“
Ma-Gents
”, “
Maximum
” and a
certain Mayende (Mgweshe) as having been involved in the commission
of the robbery. Faltein further said Ma-Gents
was owner of a
BMW that was burnt and got to be parked at Yako’s garage.
Bhenguza said he told Faltein that he knew
the owner of that BMW by
sight, but did not know who his name was. Faltein was booked
off the cells and went along with Bhenguza
to point out where Mgweshe
stayed. As they drove past Yako’s garage in Mdantsane,
Faltein pointed to the garage saying
Ma-Gent’s burnt BMW had
been parked there. Later on, the same day, so Bhenguza
testified, he spotted the person he
knew to be the owner of the BMW
that had been burnt and parked at Yako’s garage at the Highway
taxi rank near Spar.
The person spotted was the plaintiff.
Bhenguza ordered the plaintiff to get out of the car. At that
stage, a mob attended
upon the scene. The police felt unsafe.
They drove away with the plaintiff in the van to the police station.
[29] On
arrival at the NU1 police station Bhenguza informed the plaintiff
that he was being arrested for alleged
involvement in a robbery that
was said to have taken place at NU3, Mdantsane. Bhenguza warned
the plaintiff of his constitutional
and legal rights. According
to Bhenguza, the plaintiff denied involvement in the robbery, and
sought permission to contact
his legal representative. Bhenguza
got to know the plaintiff’s real name when a police docket was
being opened.
Bhenguza further asked if it would be correct for
one to describe him as having been the owner of a BMW that was burnt
and parked
at Yako’s garage. The plaintiff answered this
in the affirmative. After Bhenguza had informed the plaintiff
that
there was information to the effect that the plaintiff had been
one of the culprits involved in the robbery, the plaintiff did not
say much. Bhenguza said he asked the plaintiff further
questions but could not recall what those questions were about.
[30]
Bhenguza denied that he ever interacted with the plaintiff on Sunday
7 June 2009. The plaintiff appeared
in court on diverse
occasions thereafter. The decision to oppose bail was taken by
the public prosecutor. He played
no role in taking the
decision. He also testified that Maja played no role in
conducting investigations relative to the criminal
case. The
person described as having been the owner of the burnt BMW was said
to be “
Ma-Gents
”. The plaintiff denied being
“
Ma-Gents
”.
[31]
After the parade had been conducted, Bhenguza enclosed the statement
embodying the parade results in the
docket which he handed over to
the prosecutor.
[32]
During the ensuing bail proceedings one of the co-accused testified
that “
Ma-Gents
” had similar features with the
plaintiff, but the two were not the same person. When Bhenguza
confronted Macklein with
this information, Macklein said he was
doubtful that the plaintiff had been one of the culprits.
Bhenguza informed the prosecutor
of this.
[33]
The only time that the plaintiff mentioned that he had been at his
place of employment at Pullins when the
robbery occurred was,
according to Bhenguza, when the plaintiff gave testimony during the
bail proceedings. On the strength
of this information, Bhenguza
proceeded to Pullins Store and spoke to the store Manager, who
confirmed that the plaintiff had infact
been an employee there.
The Manager could, however, not assist regarding the time at which
the plaintiff had knocked off
on the day of the robbery. When
Bhenguza was called to testify during the bail proceedings he stated
that in light of these
revelations it would not be safe to continue
detaining the plaintiff, pending the finalisation of the case, but
despite that stance
the Magistrate refused to grant the plaintiff’s
bail application. When further investigations were being
conducted,
it emerged that there was a person who actually knew who
“
Ma-Gents
” was. A statement was obtained
from this person. The plaintiff and Magents turned out to have
been two different
persons all together. This resulted in
charges being withdrawn against the plaintiff.
[34]
Constable Maja was the next to testify. He is stationed at the
East London Vehicle Investigation Section,
and is a member of the
Service. During the time in question he was stationed at the
East London (Fleet Street) police station.
He got information
that a hired vehicle had been the subject of hijacking. Having
been furnished with the details of the
driver of the hired vehicle he
called the driver and fixed an appointment to see him. They met
and he eventually interviewed
the driver who was the complainant in
the robbery case. On a subsequent occasion he went to pick up
the complainant from
his home arranging for the complainant to meet
Bhenguza.
[35]
Maja was present when Faltein was being interviewed by Bhenguza.
He testified that Faltein provided
names of three persons with whom
he committed the robbery. “
Ma-Gents
” was mentioned
as having been one of the culprits, described as “
a person
who was tall in height
” and “
white in
complexion.
” He was said to have “
a beard
”
that is “
black and white
”, and referred to as “
the
owner
or driver of that BMW which was burnt down and parked at
Yako’s garage.”
Maja said he knew the driver of
the BMW by sight only. He however denied ever interacting with
the plaintiff in any
significant way. He also denied having
been part of the police who were at the holding cells on 7 June.
[36]
Mdalana also testified. He is a member of the Service stationed
at NU1 police station. He conducted
the identification parade
at which Faltein and the plaintiff were pointed out by Macklein.
All the processes preceding the
holding of the parade were followed
and, according to Mdalana, the parade was regular and proper for all
intents and purposes.
The parade was held at 09h00 on the day
in question, and not in the afternoon. According to him parades are
not held after 12h00.
He denied that Macklein ever brought to
his attention that he had erred when pointing out the plaintiff as
one of the culprits.
[37] Ms
Cikizwa Grace Maqhiza, a prosecutor and member of the National
Prosecuting Authority, was another of the
defendants’ witnesses
who testified. She is stationed at the Regional Court,
Mdantsane. She conducted the related
bail proceedings wherein
the State opposed the plaintiff’s application for bail.
The bail application commenced on
9 June 2009. She associated
herself with the decision of the Regional Court Control prosecutor
that bail be opposed.
The decision was based on the statement
of Macklein pointing to the robbery having been committed and the
circumstances surrounding
the same. Macklein had alleged, in
the statement, that he could identify his captors, and did infact
identify the plaintiff
during an identification parade subsequently
conducted. She said she was also influenced by the content of
Faltein’s
confession, in so far as it implicated a “
Ma-Gents
”
as one of the culprits. Ma-Gents had been described as a person
who owned a BMW that was burnt and parked at Yako’s
garage.
She also took into account the statement deposed to by Bhenguza
wherein it was mentioned that the plaintiff, according
to Bhenguza,
fitted that description.
[38]
Notwithstanding the fact that Bhenguza testified that the case of the
State against the plaintiff was weak
because Macklein was no longer
certain about the plaintiff’s identity, Ms Maqhiza pursued the
opposition to the bail application.
She did not agree with
Bhenguza regarding the weakness of the State case, this so because
there was no stage at which Macklein
had said he erred when
identifying the plaintiff at the parade. She last dealt with
the matter at bail proceedings stage.
[39]
Even though Ms Maqhiza did not take the decision to prosecute, made
by Ms Khukhula on 8 June 2009, she nevertheless
associated hersely
therewith, on 17 June 2009 when she postponed the case for a formal
bail hearing.
[40] Ms
Maqhiza conceded that as on 8 June 2004 there was nothing linking
“
Ma-Gents
” to the plaintiff’s name, Khanya
Sibhuqashe. She, however, believed that there was a
prima
facie
case against the plaintiff when the case fell on her hands
namely, Faltein’s confession mentioning the bodily features of
the person who was with him when he committed the robbery; the fact
that the person described was said to have been the owner of
the BMW
that was burnt and parked at Yako’s garage and Bhenguza’s
statement that he knew the person fitting that description
[41]
The last person to testify in these proceedings was Sabelo
Kwayimani. He, too, is a prosecutor.
He postponed the
plaintiff’s case when the matter was dealt with for the first
time in Court, on 8 June 2009. The case
was postponed because
the State had not been ready at the time to entertain the plaintiff’s
bail application. Beyond
that, Mr Kwayimani had no involvement
in the case.
[42] At
the conclusion of the trial the parties reached agreement that when
the decision to prosecute was taken
the information serving before
the prosecutor was that contained in the docket as on 8 June 2009
(A1, A8 and A9 statements in the
docket).
The issues defined
[43]
The plaintiff elected not to augment and pursue his claim for the
period during which he was detained by
virtue of a court order on the
basis of the existence and breach of a duty of care on the part of
the members of the Service concerned
and those of the National
Prosecuting Authoring who were involved in deciding to prosecute
him.
[5]
The relevant
portion of the plaintiff’s particulars of claim reads:
“
7.
The aforesaid Constable Benguza and the unknown policemen referred to
in paragraph
6 above, had no reasonable or probable cause to arrest
and detain the plaintiff, in particular:
7.1
They failed to investigate and obtain relevant information from
relevant sources regarding
the Plaintiff’s explanation that he
was not at the scene of crime at the time of the commission of the
offence of robbery
and kidnapping, alternatively they were negligent
in the conduct of such investigation;
7.2
They had a legal duty to investigate the Plaintiff’s alibi
before arresting and detaining
him;
7.3
Had they performed their duties in accordance with their legal duty,
they would have established
that the Plaintiff was not involved in
the commission of the offence in question;
7.4
Their failure to perform their duty in terms of their legal duty,
alternatively, their negligent
performance of such duty resulted in
the arrest and detention of the Plaintiff; and
7.5
Their conduct was wrongful and unlawful in the circumstances.
8.
The Plaintiff remained in custody until 28 September 2009 when all
the charges
against him were withdrawn.”
[44]
The allegations made by the plaintiff, quoted above, make it plain
that the plaintiff’s challenge to
the alleged failure on the
part of the police to exercise a duty of care was made in pursuit of
the claim founded on malicious
arrest and detention, which, as
already pointed out, was abandoned.
[45] As
already pointed out above, the plaintiff was content to pursue his
claim for unlawful detention based
purely on the contention that, in
the event of it being found that the arrest was unlawful, it should
follow that the resulting
detention was unlawful.
[46]
The issues thus falling to be determined are whether the arrest of
the plaintiff without a warrant was justified;
whether the resulting
detention was unlawful; and whether the plaintiff has made out a case
for malicious prosecution against the
first defendant. As
against the second defendant, the claim for malicious prosecution was
pursued in the alternative only.
Arrest and
detention
[47]
The plaintiff was arrested whilst occupying the driver’s seat
of his car, before setting out to leave
the NU1 shopping complex.
He was informed of the cause of his arrest. Bhenguza testified
that the mob that rallied
around at the scene of the arrest was not
friendly towards the police, with the result that the police felt
unsafe. It is
common cause that, upon arrival at NU1 police
station, the plaintiff was informed of the cause of his arrest.
The issue I
raised
mero motu
regarding whether in those
circumstances the arrest had complied with section 39 (2) of the CPA
was therefore allayed.
[48]
Because it is common cause that the robbery and kidnapping are
Schedule 1 offences and that the plaintiff’s
arrest had been
without a warrant, the crucial question falling to be determined is
whether the suspecion harboured by Bhenguza
before effecting the
arrest rested on reasonable grounds. The answer to that
question calls for a scrutiny of the facts surrounding
the arrest.
[49]
According to the plaintiff, when he was being informed of the reason
for his arrest, he immediately denied
having been involved in the
commission of the offence and raised an
alibi
, pointing to the
fact that he had been at his place of work and knocked off at 18:00
on the day in question. He also said
he had requested Bhenguza
to facilitate a meeting whereby Faltein would be caused to see him,
being hopeful that, upon seeing him,
Faltein would tell Bhenguza that
he (the plaintiff) was not
Ma-Gents.
[50]
Bhenguza’s version, on the other hand, was that he only got to
know that the plaintiff had been at
work on the day in question, much
later, during the related bail proceedings.
[51]
Ms Da Silva, who appeared for the defendants, argued that the
plaintiff’s version should be rejected
in its entirety as he
was not a trustworthy witness. According to her, the version of
Bhenguza that no
alibi
was
raised at arrest stage should be preferred. That approach does
not find support from the juridical approach to contradictions
between two witnesses. The aim is not always to prove that the
one version is truthful and the other not. Even in a
detailed
version there may be portions of evidence blurred by error or loss of
memory, or even dishonesty. In any event,
nothing requires me
to reject a witnesses’ evidence in its entirety because he has
been shown not to be truthful in some
other respect.
[6]
[52]
The probabilities overwhelmingly favour the plaintiff’s version
regarding how Bhenguza interacted with
the plaintiff when the latter
was being arrested. The plaintiff was eventually proven as
having been at his place of work
in King William’s Town on the
day of the robbery committed at Mdantsane. He had no reason to
conceal that when he was
being arrested. On the contrary, it
was important, and indeed the logical thing for him to exculpate
himself at the outset.
[53]
Bhenguza’s evidence on this aspect is plagued by fragility.
He was questioned regarding whether
he ever established the real name
of Ma-Gents. His answer was woefully lacking. The
relevant portion of the record
reads:
“
Mr
Simoyi
Lets
look at what happened on the day of your arrest. You had the
name of the person only known by Athenkosi as Magents? ---
Yes.
And you had the
information that the BMW of his Magents was burnt and was parked at
the garage? --- Yes
Okay the question I am
putting to you Mr. Benguza is that you did not establish the
information or the real name of this Magents?
Court
Do
you understand the question? --- Yes I did try to establish
from him who this Magents was.
Mr
Simoyi What name did you
get? --- He said he did not know the real names.
You did not get
information where this Magents was staying? --- He did not know
where he stayed.”
[54]
The version of Bhenguza with regards to how he interacted with the
plaintiff at arrest stage reveals further
shortcomings:
“
Did
he tell you where he was at the point when the offence in question
was be committed? Did he tell you? --- He did
not tell me
M’Lord.
Did you ask him?
--- I did ask him.
What did he tell you?
--- He said he did not say where he was. He simply said to me
he wanted to have his own attorney
and this thing, he does not know
about this thing that there...
You see I want to be sure
here again. The question is did you ask him and the answer is
yes I did. When you asked him,
what did he tell you?
Where did he say he was? --- He said he did not recall where he
was otherwise he wanted his own
attorney.”
[55]
The plaintiff’s testimony that he had requested to be linked up
with Faltein, lest Faltein had been
mistaken as to the identity of
the person he had referred to as Ma-Gents and who was involved in the
commission of the offence,
was not challenged.
[56] I
am, in the circumstances, satisfied that at the time of his arrest,
the plaintiff did inform Bhenguza of
where he (the plaintiff) had
been on the day the robbery was committed, but Bhenguza did nothing
to investigate the facts surrounding
the alibi, having merely
satisfied himself that the plaintiff had been the same person as the
Ma-Gents who was allegedly involved
in the robbery.
[57]
It is trite law that police officers who purport to act in terms of
section 40(1)(b) of the CPA should investigate
exculpating
explanations offered by a suspect before they can form a reasonable
suspicion for the purposes of a lawful arrest.
[7]
It is expected of a reasonable man to analyse and assess the quality
of the information at his disposal critically and not
to accept it
lightly or without checking it where it can be checked. It is
only after an examination of this kind that he
will allow himself to
entertain a suspicion which will justify an arrest.
[8]
[58]
Bhenguza testified that he received information from Faltein who was
the plaintiff’s co-accused in
the related criminal case that a
Ma-Gents
was involved in the robbery and kidnapping. Faltein
described this person to Bhenguza as having been the person who used
to drive a white BMW which had been burnt and get to be parked at
Yako’s garage in Mdantsane. Bhenguza said he knew
the
person who used to own the burnt BMW by sight, not by name. When
Bhenguza met the person he believed to be the owner
of the BMW on 6
June 2009 he arrested him. That person was the plaintiff.
[59]
Bhenguza did nothing to find out about the residential address of
Ma-gents from any source. He never
established the real name of
Ma-gents. He did not know the name of the plaintiff, but only
knew a person whose BMW was said
to have been burnt and parked at
Yako garage. He also never established the residential address
of the plaintiff. Therefore,
the true identity of who Ma-gents
is, was not adequately investigated.
[60]
Had Bhenguza entertained the plaintiff’s version and conducted
the necessary investigation he would
have realised that the plaintiff
had not committed any crime and that, therefore, he was not liable to
be arrested.
[61]
The information Bhenguza possessed prior to the arrest of the
plaintiff ought not, objectively viewed, to
have culminated in the
harbouring of a reasonable suspicion. In any event, the
information had been sourced out by a co-accused
who had confessed to
committing the robbery. On the facts of this case it was not
available to Bhenguza to rely on the confession
to form a reasonable
suspicion on the strength of which the plaintiff was arrested and
detained. The very person who is said
to have implicated the
plaintiff in a confession is the one whom the police refused to let
the plaintiff meet at a very crucial
stage of the investigations.
[62]
In the circumstances, the plaintiff’s arrest and resulting
detention were not justified. On the
authority of
Isaacs
v Minister van Wet en Ander
[9]
the unlawfulness of the plaintiff’s detention ceased when he
appeared for the first time in court and the Magistrate issued
an
order for his continued detention.
[63]
I am mindful of
Minister
of Safety & Security v Tyokwana
,
[10]
where it was held:
“
[W]hat
was decided in
Isaacs
is
that the prior lawful arrest of a person is not a prerequisite to the
provisions of s50 (1) of the CPA coming into effect. Put
differently, it was held that the fact, that the person may have been
arrested unlawfully does not preclude him or her from being
remanded
lawfully in terms of s 50(1) of the CPA. However, what was
not held in
Isaacs
is
that an arrested person’s continued detention, by virtue of an
order of court remanding him or her in custody in terms
of s 50 (1)
of the CPA , will automatically render such continued detention
unlawful. This was not the issue that the court
in
Isaacs
was
called upon to adjudicate.”
[11]
[64]
The Supreme Court of Appeal went on to pronounce that whether the
orders of the Magistrate remanding an accused
in custody and refusing
him bail rendered his subsequent detention lawful or not has to be
answered with regard to the perculiar
facts of each case. After
highlighting the duty resting on a policeman, who has arrested a
person for the purpose of having
him or her prosecuted, to give a
fair and honest statement of the relevant facts to the prosecutor,
the court concluded:
“
In
my view the respondent has shown that the circumstances in which the
appellant’s employees instigated and persisted with
his
prosecution amounted to an unjustifiable breach of s 12(1)(a) of the
Constitution. This is sufficient to establish delictual
liability on the part of the appellant for the full period of the
respondent’s detention from 2 October 2007 to 20 July
2009.”
[12]
[65]
The first defendant was not called upon to meet a case of delictual
liability founded in the manner pleaded
in the
Tyokwana
case.
In any event, the facts of the instant case differ remarkably
from those in the
Tyokwana
case.
Malicious
prosecution
[66]
In
Minister
for Justice & Constitutional Development v Moleko
[13]
the
requirements for the successful launch for a malicious prosecution
claim were set out as being−
(a)
that the defendants set the law in motion (instigated or instituted
the proceedings;
(b)
that the defendants acted without reasonable and probable cause;
(c)
that the defendants acted with “
malice
” (or
animo
injuriandi
); and
(d)
that the prosecution has failed.
[14]
[67]
The criminal charges the plaintiff had been facing were withdrawn due
to insufficiency of evidence on 28
September 2009. It is on
that day that the plaintiff was released from custody, after bail had
been refused by the Magistrate
on a previous occasion.
[68]
Therefore, on the facts of this case, the last requisite that must be
proven in a malicious prosecution claim
ought not to present any
difficulty. It is trite law that the proceedings terminate in
the plaintiff’s favour where
the plaintiff is acquitted or the
Director of Public Prosecutions declines to prosecute.
[69] It
now remains to consider whether the plaintiff has established the
rest of the requisites of malicious
prosecution against first
defendants. This issue is dealt with under various sub-topics.
Was the law set in
motion?
[70]
Upon the arrest and detention of the plaintiff, Bhenguza opened the
relevant police docket. He was not present
in court when the
plaintiff appeared for the first time on 8 June 2009. He was
also not present in court when the matter
was dealt with for the
second time. Nor did Bhenguza ever interact with the public
prosecutor when the decision to prosecute
the plaintiff was being
taken. Beyond this point, other than arranging for the identification
parade to be held, Bhenguza next
featured in the matter during the
bail proceedings.
[71]
It has been contended on behalf of the Service that Bhenguza merely
gave a fair and honest statement of the
facts to the prosecutor
leaving it to the prosecutor to decide whether to prosecute or not
and that, therefore, Bhenguza did not
instigate the proceedings.
There is indeed clear judicial authority for the proposition
that where a policeman gives a fair
and honest statement of the facts
to the prosecutor to decide whether to prosecute or not the policeman
does not in so doing instigate
the proceedings.
[15]
[72]
In my view, given the dereliction of duty on the part of Bhenguza as
pointed out above,
[16]
this
case cannot be classified as one involving a policeman who has given
a fair and honest statement of the facts to the prosecutor.
Withholding crucial information does not constitute a fair and
honest statement. Had he informed the prosecutor that
the
plaintiff had proposed that further investigations supportive of his
alibi be conducted and the possibility of a mistaken identity
ruled
out by causing Faltein to meet the plaintiff, the plaintiff would, in
all probability, not have been charged by the prosecution.
Without reasonable and
probable cause
[73]
From the above synopsis, can it be said that Bhenguza acted with
reasonable and probable cause? It
is expected of the defendant
to possess sufficient facts known to the defendant from which a
reasonable man could have concluded
that the plaintiff had committed
the offence in question.
[17]
The defendant is expected to have taken reasonable measures to
discover the facts upon which he based his conclusion that
the
plaintiff was guilty of the offence. Where, as here, the
defence is an alibi, and there was a risk of mistaken identity,
it
was incumbent on the investigating officer to have taken reasonable
measures to discover the facts as proposed by the plaintiff
and to
have informed the prosecutor of those measures when passing on the
docket for the taking of a decision. In my view,
Bhenguza’s
failure to engage the prosecutor who took the decision that the
plaintiff should be prosecuted constituted an
instigation of criminal
proceedings against the plaintiff without reasonable and probable
cause.
Malice
[74]
It is trite law that a person who acts in a grossly negligent and
reckless manner, and does so in the furtherance
of his own interest
without due regard to the rights of others and careless as to whether
he interferes with the liberty of another,
will be regarded as having
been influenced by improper motives equivalent to malice.
[18]
The conduct of Bhenguza already dealt with above points to him as
having been actuated by malice when he failed to investigate
exculpating explanations offered by the plaintiff and did not inform
the prosecutor of those explanations. In light of this
finding,
and regard being had to the fact that the second defendant is an
alternative defendant in the malicious prosecution claim,
I need not
enquire into second defendant’s liability or otherwise for this
claim.
[75] In
light of the aforegoing, the first defendant is also liable in
damages to the plaintiff for malicious
prosecution.
Costs
[76]
The plaintiff has been victorious against first defendant. In
the circumstances of this case it is
reasonable that the unsuccessful
defendant should bear the costs of the action. The plaintiff’s
step of suing both
defendants in one action was reasonable, having
been informed by rule 10(3) of the Uniform Rules of Court.
[19]
Had the plaintiff not sued both defendants there might have been a
risk of a multiplicity of actions. In any event,
to a large
degree, both defendants made common cause of the defence to the
action; there was no conflict of interest between these
defendants,
hence they were represented by the same counsel.
Order
[77] In
the result, the following order is made:
(a)
The first defendant is held liable to the plaintiff in proven or
agreed damages consequent upon
the plaintiff’s-
(i)
arrest by members of the South African Police Service on 06 June 2009
and the plaintiff’s
resulting detention from 06 June 2009 to 08
June 2009; and
(ii)
malicious prosecution from 08 June 2009 to 28 September 2009.
(b)
The quantum of damages to which the plaintiff is entitled shall be
determined on a date to be
arranged with the Registrar of this Court.
(c)
The first defendant shall pay the costs of the action incurred thus
far.
S M MBENENGE
JUDGE OF THE HIGH
COURT
Plaintiff’s
Counsel:
Mr
Simoyi (instructed by Messrs Msesiwe Vapi Inc.)
Defendant’s
Counsel:
Ms
Da Silva (instructed by the Bhisho State Attorney)
Heard on:
13 August 2015
Delivered on:
22 October
2015
[1]
As to
the difference between these two delicts, see Joubert
LAWSA
(first
reissue) Vol 15 para 479 at 297.
[2]
The
following remarks by Nugent JA in
Makahanya
v University of Zululand
(2010)(1)
SA 62 (SCA) para [31] at p72 B-C are Apt:
“
Sometimes
the right that is being asserted might be identified expressly.
At other times it might be discoverable by inference
from the facts
that are alleged and the relief that is claimed. And if there
is any doubt a court might simply ask the
litigant to commit himself
or herself to what the claim is before the court embarks upon the
case.”
[3]
51 of
1977 (the CPA).
[4]
Schedule 1 of the CPA.
[5]
Such
a claim would have been based on decisions like
Woji
Minister of Police
[2014]
ZASCA 108
,
Minister
of Safety and Security v Du Plessis
[2013]
ZASCA 128
and
Singatha
and Another v Minister of Police and Another
[2015]
ZAECBHC 19, wherein it was found that the existence of a detention
order does not preclude a determination of the legality
of the
manner in which the court exercised its discretion in granting that
order, and that on conduct, including an omission,
which constitutes
a breach of a public law duty may render the plaintiff’s
detention unlawful for purposes of a delectial
claim for damages.
[6]
See
S
v Oosthuizen
1982
(3) SA 571
(T) at 249, where the court held:
“
The
argument on behalf of the accused would seem to be this: the
evidence of Broodryk is contradicted (whether by other witnesses,
or
by himself in this trial, or by himself in previous statements);
ergo
his
evidence should be rejected. The conclusion is a
non
sequitur.
There
is no reason in logic why the mere fact of a contradiction, or of
several contradictions, necessarily leads to the rejection
of the
whole of the evidence of a witness.”
[7]
Louw and Another v
Minister of Safety and Security and Others
2006
(2) SACR 178
(T);
Liebenberg
v Minster of Safety and Security
[2009]
ZAGPPHC 88 (18 June 2009).
[8]
Mabona
and Another v Minister of Law and Order and Others
1988
(2) SA 654 (SE).
[9]
1996 (1) SACR 314
(A) at
321I – 322C.
[10]
2015
(1) SACR 597 (SCA).
[11]
Ibid
at [38].
[12]
Ibid
at [44].
[13]
[2008]
3 All SA 47 (SCA).
[14]
Ibid
at 50d-f.
[15]
Waterhouse v Shields
1924
CPD 155
at 160; see also
Funda
v The Minister of Safety and Security
[2010]
ZAECMHC 5.
[16]
See
above paras [56] – [58].
[17]
Ochse
v King William’s Town Municipality
1990
(2) SA 855
(E) at 858.
[18]
Hooper
v Moore and Varty
1921
NPD 105
;
RL
Weir and Co v De Lange
1970
(4) SA 25
(E) at 29 and
Ramakulukusha
v Commander, Venda National Force
1989
(2) SA 813
(V) at 845.
[19]
Harrington
v Transnet Limited
2010
(2) SA 479
at 496H – 497A;
Rabinowitz
and Another NNO v Ned-Equity Insurance
1980
(3) SA 415
(W) at 419G – 420A; and
Parity
Insurance Co. Ltd v Van den Bergh
1966
(4) SA (A) 461 at 481F – H.