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[2015] ZAECMHC 82
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Phewa v Minister of Safety and Security and Another (2089/12) [2015] ZAECMHC 82 (26 November 2015)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
: MTHATHA
CASE NO. 2089/12
In
the matter between:
MUSAWENKOSI
BRIAN
PHEWA
Plaintiff
And
THE
MININSTER OF SAFETY AND
SECURITY
1
st
Defendant
POLICE
OFFICER (MR
TILE)
2
nd
Defendant
JUDGMENT
GRIFFITHS, J.:
[1] The
plaintiff has sued the defendants for damages arising out of his
arrest and detention. The first defendant is the Minister
of safety
and Security and the second defendant is the arresting officer, one
Warrant Officer Tile. The plaintiff's precise cause
of action is not
clear from the particulars of claim but appears to be based on a form
of malicious legal proceedings in that it
is alleged therein that his
detention was "malicious, unlawful and without probable cause or
reason." It was further
alleged that:
"
The
second defendant improperly used the legal machinery of the state to
deprive the personal liberty of the plaintiff unjustly
and with
malice."
[2] The
facts of the matter are, save for one important exception, common
cause between the parties. Sometime before 5 March 2012
a minor
female of between 15 and 16 years of age laid a charge of rape
against the plaintiff. The matter was investigated by the
second
defendant who, on 4 March 2012, telephoned the plaintiff. The
plaintiff was then in Durban and the second defendant
informed him
that he was to be arrested on this charge. On 5 March 2012 the
plaintiff, accompanied by his attorney Mr. Mhlawuli,
attended at the
offices of the second defendant during the late afternoon. The matter
was discussed and the second defendant duly
completed two forms, one
being a warning statement and the other a form headed "Bail
Information Form". At the end of
the latter form, after having
received information and submissions from the plaintiff and/or his
attorney, the second defendant
as the investigating officer in the
case indicated that he would not oppose bail and recommended that it
should be fixed in the
sum of R1000.
[3]
Resulting from this, Mr. Mhlawuli attempted to arrange for a bail
application to be heard in F court, Mthatha Magistrates’
Court
without success. It is common cause that F court is the court where
unopposed bail applications are apparently heard. The
F court
prosecutor indicated that there was insufficient time to have the
matter heard. He thereafter managed to arrange with a
regional court
prosecutor for the matter to be heard in K Regional Court. He
informed the second defendant of this arrangement.
The second
defendant was apparently dismissive of this as he had never in all
his years as a detective heard of such an application
being heard in
the regional court, and the matter ended there on that day.
[4] On
6 March 2012 the prosecutor of F court was duly furnished with the
criminal docket which she perused. She indicated to the
court that
the bail application was to be opposed and that it was to be
postponed for a formal bail application to be heard in
the court
which dealt with such matters. Ultimately, the matter was adjourned
to 8 March 2012 for such purpose. It appears that
the matter was then
adjourned to 14 March 2012. On both occasions the investigating
officer was not present. The reason for the
adjournment on each
occasion was apparently that the plaintiff's "criminal profile"
was not available. Such criminal
profile referred to documentation to
be obtained from the Local Criminal Record Centre reflecting the
plaintiff’s previous
convictions, or lack thereof, pending
matters and other relevant information. On the 14th, the plaintiff's
evidence in support
of his application for bail was heard by the
court. Thereafter, the case was again adjourned to 19 March 2012.
[5] On
19 March 2012, the investigating officer indicated to the court that
although he had not been able to obtain the criminal
profile of the
plaintiff, he was nonetheless withdrawing his opposition to the bail
and bail was granted in the sum of R1000.
[6] The
only "disputed" factual matter which has relevance to this
case is the evidence of the second defendant to the
effect that when
he attended court on 6 March 2012, and after the prosecutor had
perused the criminal docket which included the
aforementioned "Bail
Information Form", he was informed by her that he was not
entitled not make the decision not to
oppose bail in in a case such
as this as the question of whether or not to oppose bail rested with
her. It appears that it was
her view that this matter was
sufficiently serious, being an alleged rape of a minor girl, for her
to intervene and overrule the
investigating officer’s
opposition to bail. He had to attend another matter in Port Elizabeth
and the prosecutor informed
him that she would contact him in due
course. It was because of this approach of the prosecutor that he
changed his stance and
opposed the bail application based, in
particular, on the fact that he needed the criminal profile in order
to ascertain whether
the plaintiff had been truthful with regard to
his previous convictions, or lack thereof, and pending proceedings
etc.
[7]
This evidence of the second defendant is of crucial importance to
this case because, if it is true, it explains why the second
defendant changed his stance and opposed bail when he had initially
indicated that he would not.
[8] As
I indicated at the outset of this judgment it appears from the
particulars of claim that the plaintiff relied on a form of
malicious
legal proceedings and this stance was indeed confirmed by Mr.
Luzipho, who appeared for him, in argument before me. However
it
appears that the heads of argument put up by Mr. Luzipho contradict
this in that Mr. Luzipho seems in those heads to argue for
a claim
based on the
actio injuriarum
and on what was said by Swain JA in the matter of
Woji
v Minister of Police
[1]
to the effect that a claim would lie against the Minister of Police
in circumstances where there had been a failure on the part
of a
policeman to disclose relevant information to a magistrate hearing a
bail application. He said:
“
The Constitution imposes a
duty on the state and all of its organs not to perform any act that
infringes the entrenched rights,
such as the right to life, human
dignity and freedom and security of the person. This is termed a
public law duty. See Carmichele
v Minister of Safety and Security and
Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2002 (1) SACR
79
CC
(2001 (4) SA 938
;
2001 (10) BCLR 995
;
[2001] ZACC 22)
para 44.
On the facts of this case, Insp Kuhn, a policeman in the employ of
the state, had a public law duty not to violate Mr
Woji's right to
freedom, either by not opposing his application for bail, or by
placing all relevant and readily available facts
before the
magistrate. A breach of this public law duty gives rise to a private
law breach of Mr Woji's right not to be unlawfully
detained, which
may be compensated by an award of damages. There can be no reason to
depart from the general law of accountability,
that the state is
liable for the failure to perform the duties imposed upon it by the
Constitution, unless there is a compelling
reason to deviate from the
norm. Mr Woji was entitled to have his right to freedom protected by
the state. In consequence, Insp
Kuhn's omission to perform his public
duty was wrongful in private law terms."
[2]
[9]
Although such a claim appears not to have been pleaded, I am prepared
to accept that such a claim may be advanced by the plaintiff
more
especially as the defendants bear the onus in this matter to
establish justification for the admitted detention of the plaintiff
from the evening of 5 March 2012 to approximately midday on 19 March
2012. I shall refer to this as "the alternative claim".
[10]
From this, it will become clear as to why the evidence tendered by
the second defendant becomes of importance. If it is accepted,
it
amounts to a reasonable explanation as to why he changed his mind and
opposed the bail application. It also has relevance to
the
alternative claim because it explains why the second defendant
required the matter to be postponed as it was important to obtain
relevant and independent information as to the plaintiff's criminal
record in the form of his criminal profile, which had an obvious
bearing on the question of bail.
[11]
Mr. Luzipho has argued strenuously that I should reject this evidence
of the second defendant. He has submitted that I should
do so on two
bases, firstly, that it was not put to the plaintiff's attorney, Mr.
Mhlawuli, when he testified and secondly, that
the second defendant
was somewhat evasive in his evidence.
[12] As
to the first submission, I beg to disagree. Mr. Qitsi, who appeared
on behalf of the defendants, put two things to Mr. Mhlawuli,
namely
that the investigating officer had, on 6 March 2012, handed the bail
information form to the public prosecutor and that
the second
defendant had been told by the prosecutor about the seriousness of
the case. Mr. Mhlawuli, in both instances, was unable
to dispute this
evidence. It is clear that Mr. Qitsi had been instructed about the
evidence which the second defendant would tender
in this regard but
was somewhat remiss in not taking the matter further by putting to
Mr. Mhlawuli that the prosecutor had further
informed the second
defendant that because it was a serious charge it was her decision as
to whether bail should be opposed or
not. On the probabilities, there
clearly had to be a reason as to why the second defendant changed his
mind, apparently overnight.
It was either because he was a deeply
malicious person who decided for his own ulterior reasons to oppose
bail so as to ensure
that the plaintiff languished in custody simply
because he had a minor dispute with the plaintiff's attorney as to
which court
should hear the application
[3]
,
or the reason given by him. That he acted with malice is so
improbable in all the circumstances bearing in mind that the he had
candidly indicated on 5 March that he would not oppose bail and,
indeed, on 19 March had, despite apparently what the prosecutor
had
advised, again capitulated and withdrawn his opposition even though
he still had not obtained the criminal profile. Such an
injunction
from the prosecutor gives a clear and probable reason for the
investigating officer to change his mind, bearing in mind
furthermore
the fact that there was an onus on the plaintiff in terms of section
60(11)(a) of the Criminal Procedure Act
[4]
to produce evidence "
which
satisfies the court that exceptional circumstances exist which in the
interests of justice permit his or her release
."
[5]
There was also no evidence to gainsay the evidence given by the
second defendant in this regard.
[13]
The investigating officer did appear to be somewhat uncertain about
some aspects but I did not find him to be evasive and his
demeanour
in the witness box did not indicate that he was being untruthful. In
my view, he was a little perplexed about the entire
matter
particularly because of the fact that his initial decision (the
decision of an experienced detective) not to oppose bail
had been
overruled by a prosecutor who probably did not have all that much
experience and his decision was ultimately vindicated
when bail was
subsequently granted. To add insult to injury, he was thereafter
drawn as a second defendant into this matter.
[14] I
am satisfied that the investigating officer was telling me the truth
in this regard and I accept this evidence.
[15] As
I have indicated earlier, once one accepts this as being the truth it
cannot be argued with any force that the second defendant
acted with
malice in opposing the bail application during the period 6 March
2012 to 19 March 2012. If anything, his evidence in
this regard
coupled with the fact that he ultimately withdrew his opposition
despite the injunction by the prosecutor and despite
the fact that he
had not yet obtained the criminal profile of the plaintiff, tends to
indicate the precise opposite.
[16]
What then about the alternative claim? The only basis upon which the
plaintiff could succeed in this regard would be if the
defendants
failed to place sufficient evidence before the court to establish
that the second defendant had failed in his duty by
opposing the bail
application or by misleading the court with regard to relevant
information such as previous convictions and pending
matters. In my
view, the defendants succeeded in establishing that the opposition to
bail for a period of some 14 days was reasonable
in the
circumstances. The main objection raised seems to have been with
regard to previous convictions and pending matters. These
would be
revealed by the criminal profile. The criminal profile, according to
the evidence of the second defendant which was not
seriously
challenged, could not be obtained expeditiously from the Local
Criminal Record Centre as there had been difficulties
with their
systems in this regard resulting in a backlog.
[17]
Mr. Luzipho has argued that the investigating officer ought to have
accepted the plaintiff’s say so in this regard when
he was
interviewed and gave information as to these issues. Again I beg to
disagree. Whatever the second defendant may have thought
of the
plaintiff, experience teaches us that many an accused has attempted
to pull the wool over the eye of an investigating officer
in this and
many other regards. An experienced investigating officer should never
simply accept the accused’s word in this
regard and ought to
verify such information by independent means, such as his criminal
profile.
[18]
Finally, Mr. Luzipho referred me to the case of
Minister
of Safety and Security and Another v Never Ndlovu
[6]
.
This case is clearly distinguishable on a number of counts. In
Ndlovu's case the court found that damages ought to be awarded to
the
respondent in circumstances where a prosecutor had failed to read the
criminal docket which had resulted in the matter being
adjourned and
the respondent being detained in custody. Because it was admitted
that the initial arrest and detention prior to
the matter coming to
court was unlawful, it was found that this unlawfulness was
perpetuated when the prosecutor failed to ensure
a proper evaluation
of the matter before the first court in which the respondent
appeared. In addition, the police officers had
not told the court the
truth with regard to whether or not the respondent was of fixed
abode. The appeal court dismissed the appeal
but, tellingly, it
altered the order of the court
a quo
which had simply ordered the respondent to pay damages (there having
been two respondents, the Minister of Police and the Minister
of
Justice and Constitutional Development) and awarded damages as
against the Minister of Police for the period prior to the matter
coming to court and as against both ministers for the subsequent
period of detention.
[19]
In this matter, not only was the initial detention of the plaintiff
never assailed, but the Minister of Justice
and Constitutional
Development was not joined as a party.
[20]
In the circumstances I am satisfied that the defendants have
discharged the onus resting on them to establish
a justification for
the plaintiff's detention.
Accordingly the plaintiff's claim is dismissed
with costs.
JUDGE OF
THE HIGH COURT
HEARD
ON
: 18 November 2015
DELIVERED
ON
: 26 November 2015
COUNSEL
FOR PLAINTIFF
:
Mr Luzipho
INSTRUCTED
BY
: SR Mhlawuli &
Associates
COUNSEL
FOR DEFENDANTS
:
Mr Qitsi
INSTRUCTED
BY
: State Attorney
[1]
2015 (1) SACR 409 (SCA).
[2]
At paragraph 28. See further on the distinction
between these two causes of action: Sibuqashe v Minister of police
and Another
(unreported Eastern Cape High Court, Bhisho, case No.
527/2011 at paragraphs 4 and 43).
[3]
See in this regard: Van Litzenberg v Louw &
De Beer
(1899) 16 SC 283
at 286 where de Villiers CJ said: "In
order to prove malice some evidence has been led as to previous
quarrels between the
plaintiff and defendant. Really, these quarrels
were of the most trivial description, and amounted to nothing, and
it is wholly
incredible that the defendants would have preferred
these charges by reason of those petty little quarrels."
[4]
No. 51 of 1977
[5]
This applies to offences which fall within
schedule 6 of the Act, it being common cause that the plaintiff was
charged with such
an offence.
[6]
(788/11)
[2012] ZASCA 189
(30 November 2012)