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[2015] ZAECBHC 35
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Sibuqashe v Minister of Police and Another (527/2011) [2015] ZAECBHC 35 (22 October 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. 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. 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 in that the plaintiff
had been reasonably suspected of having committed Schedule
1 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.
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.
[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. 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.
[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 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, 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.”
[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.”
[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 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.
[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.
[72] In
my view, given the dereliction of duty on the part of Bhenguza as
pointed out above, 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. 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. 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. 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