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[2014] ZAGPPHC 35
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Mashifane and Another v Minister of Police and Another (25669/2011) [2014] ZAGPPHC 35 (25 February 2014)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case Number:
25669/2011
Date: 25 February 2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter between:
MMANAKO FENCE
MASHIFANE
..........................................................
1
ST
PLAINTIFF
MORRIS
DIALE
.....................................................................................
2
ND
PLAINTIFF
and
MINISTER OF
POLICE
.....................................................................
1
ST
DEFENDANT
NATIONAL COMMISSIONER
OF THE
SOUTH AFRICAN POLICE
SERVICES
..........................................
2
ND
DEFENDANT
JUDGMENT
MOLEFE, J:
[1] In this action the
plaintiffs seek damages against the defendants arising out of their
arrest at Marble Hall on 30 November
2010, their subsequent
detention, assault and malicious prosecution initiated by the
employees of the defendants, which ultimately
resulted in the
plaintiff’s case being withdrawn on 21 December 2010. The claim
is based on the principle of vicarious
liability of the first
defendant for the actions of the police officials acting in the
course and scope of their employment.
The second defendant is
cited mainly for the reason that she is the chief accounting officer
of the first defendant.
[2] The second plaintiff
has, subsequent to the issuing of the summons died and his case was
abandoned by the legal representative
acting on his and the first
plaintiff’s behalf. For convenience, when I refer to the
“plaintiff” this
should be read as a reference to the
first plaintiff.
[3] The plaintiff alleges
that his arrest in respect of the charge of murder was unlawful if
regard be had to the requirements
of
section 40
(1) (b) of the
Criminal Procedure Act 51 of 1977
, and that his subsequent detention
and assault were similarly unlawful. In addition, the plaintiff
avers that the prosecution
in respect of the murder charge was
malicious.
[4] The defendants deny
that the arrest and detention were unlawful or that the prosecution
was malicious and dispute the assault
and the quantum of damages
allegedly suffered by the plaintiff.
Issues in
dispute
i)
Was the
arrest and detention of the plaintiff lawful or unlawful?
ii)
Was the
plaintiff assaulted whist in detention?
iii)
Was the
prosecution of the plaintiff by the defendant malicious?
The quantum of the
plaintiff’s damages.
Common Cause
Facts
[5] The plaintiff was
arrested on 30 November 2010 at Marble Hall, Limpopo Province on
charges of murder and appeared in court
on 1 December 2010. The
matter was postponed on a couple of occasions. Plaintiff’s
arrest followed after the
murder of Sello Madileng (‘the
deceased’) who was shot and killed on 7 November 2010.
[6] The arresting
officer, Warrant Officer Mokgomogane was appointed as the
investigating officer and case docket Motetema CAS
65/11/2010 was
opened.
[7] No formal complaint
of assault, torture or injuries was made by the plaintiff at the
police station or at Court whilst in
detention and after he was
released.
[8] During the
investigation of the case, Warrant Officer Mokgomogane obtained a
statement from Andries Madileng (“Andries”)
on 7 November
wherein he could not identify the deceased’s killers. On
29 November 2010, Andries made the second
statement to Warrant
Officer Mokgomogane wherein he alleged that the plaintiffs were
responsible for the killing of the deceased.
He stated that the
plaintiffs wanted to shoot him and that he hit the second plaintiff
on the head with a bottle in his attempt
to escape being killed.
[9] On 1 December 2010
before the plaintiffs’ first appearance, he and the second
plaintiff were pointed out by Andries
on an identification parade as
the deceased’s killers.
[10] The docket with all
the evidence and witnesses’ statements were presented to the
prosecutor at Motetema Court on 1
December 2010 and he decided to
prosecute the plaintiffs.
[11] During his
investigations Warrant Officer Mokgomogane obtained a statement from
a nurse Joyce Thobejane on 8 December 2010,
regarding the head injury
treatment to the second plaintiff. This statement was also presented
to the prosecutor and indicated
that the second plaintiff was
innocent of the murder. The case was later withdrawn in court against
the plaintiffs.
[12] The plaintiff’s
version of the events leading to his arrest was that in the early
hours of Sunday 7 November 2010 he
and 3 other persons (including the
second plaintiff) left a tavern to go to Leeuwfontein. On their way,
two male persons informed
them that there is a person lying on the
road ahead. They indeed found a person on the road and cellphone
torch was used to light
the person. They identified him as the
deceased who the plaintiff knew very well as they were neighbours.
The plaintiff used
his cellphone and phoned Sinky Malapane, the
deceased’s son and Prince Madileng, the deceased’s
nephew. The plaintiff
also telephoned the police.
The plaintiff remained at
the scene with the second plaintiff until the police arrived.
Andries Madileng arrived at the
scene and the plaintiff heard him
telling the police that the deceased was killed by one Sibi
Mananyetso.
[13] On 20 November 2010,
Warrant Officer Mokgomogane came to the plaintiff’s home and
the plaintiff voluntarily gave a
statement to him on how they
discovered the deceased on 7 November 2010. On 29 November
2010, the plaintiff met with Warrant
Officer Mokgomogane who was with
the second plaintiff and he informed them that if they did not assist
him in the murder case
he will arrest them.
On 30 November 2010, the
plaintiffs agreed to meet with Warrant Officer Mokgomogane next to
the KFC at Marble Hall. Mokgomogane
was with another officer Phoku
and they were arrested. They were put at the back of the police
Nissan hardbody vehicle with no
canopy, foot cuffed and each cuff
tied to the vehicle. The police drove to Spar Supermarket in Marble
Hall where they bought
food whilst the plaintiff remained at the back
of the vehicle, where they were seen by many people who knew them.
[14] The police drove to
the plaintiffs’ place of employment where the officers told the
security officers to report that
the plaintiffs have been arrested.
They were taken to Motetema Police Station where the plaintiff was
taken to a thatched-roofed
structure, where he was assaulted. His
hands were cuffed and put over his bended knees. A ± 1 meter
long wooden plank
was placed between the back of both his knees and
the inside of both his elbows and he was lifted and placed in the
space between
two tables with the plank on both ends of the tables.
He was then pushed so that his hanging body would swing, causing him
a
great deal of pain. The two officers, Mokgomogane and Phoku told
him to tell the truth about the person who killed the deceased.
The
officers left him in the structure and he was crying out loudly due
to the pain. Constable Mabitsela, who is known to the
plaintiff came
into the room and told him that he will call Mokgomogane and Phoku to
release him. After a while, Mokgomogane
and Phoku came back and
released him from the tables and the cuffs. He was taken to the cells
where he was detained. He was rescued
by Constable Mabitsela who
ordered the officers to stop the assault.
[15] Plaintiff showed to
the Court some marks on his wrists, allegedly from the hand cuffs
during the assault. His stay in the
cells was bad and he was
ill-treated by the other inmates. To him the most painful aspect was
having been accused and to face
a charge for murder which he did not
commit. His dignity was degraded by the murder charge.
[16] The Plaintiff
conceded under cross-examination that he neither reported the assault
to anyone nor did he lay a charge for
the assault against the police
officers allegedly involved. He also did not receive medical
treatment for his injuries. He denied
under cross-examination that he
was arrested at a farm where he was hiding to evade the arrest. It is
plaintiff’s contention
that his arrest on 30 November 2010 as
well at the subsequent detention were unlawful and that when he was
charged on 1 December
2010 for the charge of murder, it initiated a
prosecution that was malicious and that had no prospects of
succeeding.
[17] On behalf of the
defendants, Warrant Officer Mokolobetsi Johannes Mokgomogane
testified that he was the investigating officer
in the murder case of
Sello Madileng. He acted on the evidence he collected during his
investigation and based on the testimony
by Andries Madileng in his
second statement, he arrested the plaintiff. On 30 November 2010, he
received information that plaintiffs
were about to flee and were at a
taxi rank in Marble Hall. He arrested the plaintiff in order to take
him to court for the court
to decide whether he was guilty.
He testified that he had
no reason to doubt the evidence of Andries Madileng and presented all
the available evidence in the docket
to the prosecutor for decision
on the prosecution of the matter. He does not decide to prosecute as
it was the function of the
prosecutor.
He denies any allegation
of assault and stated that no complaints regarding assault and/or
injuries were ever made by the plaintiff.
He did not know the
plaintiff prior to the incident.
[18] Warrant Officer
Mokgomogane conceded under cross-examination that he failed to ask
the plaintiff where he got the deceased’s
relatives number as
he (plaintiff) phoned them to come to the murder scene. He however
denied that his failure to consider the
statement made by Sinky
Malapane made his suspicion unreasonable. He further conceded that he
failed to obtain any clarifying
statement from Andries Mabileng when
there were contradictions between his two statements.
Warrant Officer
Mokgomogane’s view is that when he arrested the plaintiff and
subsequently decided to charge him, he was
satisfied that there was a
reasonable basis to suspect the involvement of the plaintiff in the
murder of the deceased.
[19] Constable Moloko
Jeffrey Mabitsela was the defendant’s second witness and in his
testimony he denies that he knew the
plaintiff and that he ever
witnessed any assault by the police officers as claimed by the
plaintiff. He stated that should
he have witnessed such assault
by his colleagues, he would have stopped it and reported it to his
superiors. It warrants
mention that Constable Mabitsela’s
testimony was not disputed.
Unlawful Arrest
and Detention
[20] Regarding the
unlawful arrest and detention, the plaintiff pleaded that his arrest
and detention were unlawful in that it
was effected without a warrant
and did not comply with the laws regulating arrest without a warrant
and furthermore that it was
effected arbitrarily. There can be no
doubt that the crime of murder, that was investigated and for which
the plaintiff was arrested
is serious and is described in Schedule 1
of the Criminal Procedure Act
[1]
(‘The Act’).
Section 40 (1) (b) of the
Act provides that:
“
A peace
officer may without a warrant arrest any person –
a) - - - - - - - - -
b) whom he reasonable
suspects of having committed an offence referred to in schedule 1,
other than the offence of escaping from
lawful custody.”
This section provides for
the jurisdictional facts required in a defence for a lawful arrest.
These facts were amplified in
Duncan v Minister of Law &
Order
1986
(2) SA 805
(AD) at 818 G – H.
In this case the Appellate Division concluded that in order to be
able to rely on the protection of section 40 (1) (b), it must
be
established that:
a) the person who
effected the arrest was a peace-officer;
b) he must have
entertained a suspicion;
c) it must be a
suspicion that the arrestee committed the offence referred to in
Schedule 1 of the
Criminal Procedure Act; and
d) the suspicion must
rest on reasonable grounds.
[21] An arresting officer
is required to form a reasonable suspicion of a commission of an
offence before arresting an individual,
which arrest effectively
deprives the individual of his liberty. The burden to prove that the
arrest was justified and not wrongful
rests upon the defendant:
Minister of Law and Order and Others v Hurley and Another
1986(3) SA 568 (A) 589 E-F;
Minister
of Safety and Security v Sekhoto
2011 (1) SACR 315
AT 321 par 7.
[22] The question whether
Warrant Officer Mokgomogane had a reasonable suspicion in the
circumstances that plaintiffs committed
the offence must be
considered by taking into account that;
“
Suspicion in
its ordinary meaning is a state of conjecture or surmise where proof
is lacking; ‘I suspect but I cannot prove’.
Suspicion arises at or near the starting point of an investigation of
which the obtaining of prima facie proof is the end”.
See
Shabaan
Bin Hussien and Other v Chong Fook Kam and Another
[2]
as referred to with approval in
Duncan
v Minister of Law and Order (supra)
.
[23] The arresting
officer in this case had the two conflicting statements made by
Andries Madileng at his disposal; in the first
statement, Andries
testified that he received a call from the deceased informing him
that a Sibi Monanyetso was fighting with
him. Visibility was bad and
Andries could not see the persons who were with the deceased and did
not talk to them. In the second
statement Andries implicated the
plaintiffs in the killing of the deceased and even spoke to them. He
even hit the second plaintiff
with a bottle on the head at close
range.
Plaintiff admitted that
he was at the scene where the deceased was killed and even telephoned
the deceased’s relatives after
finding the deceased lying on
the ground.
[24] When considering
whether the suspicion was reasonable, it must be objectively clear
that a reasonable man in the circumstances
wherein the arresting
officer finds himself would have suspected that the plaintiff had
committed the offence. See
R v Van Heerden
1958 (3) SA 150
(T) at 152 D-E
.
[25] For the purposes of
this case, it is not disputed that Warrant Officer Mokgomogane is a
peace officer, he entertained a suspicion
and the murder
investigation is a schedule 1 offence. What is in dispute is whether
he formulated a reasonable suspicion from
the statements made to him
that the plaintiff was involved in the murder of the deceased.
Warrant Officer
Mokgomogane testified that he arrested the plaintiffs on the strength
of the second statement made by Andries.
He held the view that the
fact that the plaintiff phoned the deceased’s relatives from
the scene of the incident was that
the plaintiff stole the deceased’s
cellphone and obtained the relatives’ numbers from the stolen
cellphone. He also
relied on the fact that the second plaintiff had
an injury on his head, which in his view matched with Andrie’s
testimony
in the second statement that he hit him with a bottle on
his head.
On his own version, he
took a statement from the nurse at the local clinic on 8 December
2010 and the nurse testified that she
treated the second plaintiff
for injuries on the head on 6 November 2010, prior to the murder of
the deceased. When the
nurse’s statement was submitted to
the prosecutor, the prosecutor withdrew charges against the
plaintiffs.
[26] In
Mabona v
Minister of Law and Order
1988 (2) SA 654
EC at 658 E-G
,
Jones J stated the following regarding section 40 (1) (b) of the Act:
“
It authorizes
an arrest on the strength of a suspicion and without the need to
swear out a warrant, i.e. something which otherwise
would be an
invasion of private rights and personal liability. The
reasonable man will therefore analyze and assess the
quality of the
information at his disposal critically, and he will not 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”.
[27] It is my view in
this case that Warrant Officer Mokgomogane failed to analyze and
assess the quality of the information at
his disposal critically
before the arrest. He also failed to check it; he only took a
statement from the nurse after he had arrested
the plaintiffs. Two
contradictory statements were made by the main witness and the
arresting officer failed to verify the truth
by a clarifying
statement from the witness. He failed to verify from the plaintiff
where he got the cellphone numbers of the
deceased’s relatives
and to verify the statement made by Sinky Malapane. Had he taken the
nurse’s statement prior
to the arrest, he could have avoided
the arrest. This, in my view was a dereliction of duty by Warrant
Officer Mokgomogane. It
is my view therefore that the suspicion that
the plaintiff was involved in the murder was not based on reasonable
grounds.
Unlawful Assault
[28] The onus of proving
that the plaintiff was assaulted rests on the plaintiff.
When considering whether the plaintiff
proved the alleged assault by
the police officers, the evaluation must depend largely upon the
evaluation of the evidence, inferences
from other facts and upon the
probabilities. See
Union Spinning Mills (Pty) Ltd v
Paltex Dye House (Pty) Ltd and Another
2002 (4) SA
408
(SCA) at par 24.
[29] The plaintiff gave a
detailed account on how he was assaulted and demonstrated to the
court that he still bears the marks
of the injuries. The plaintiff
however failed to lay a charge of assault against the arresting
officers, especially after the
charge was withdrawn against him. He
never reported the assault to the magistrate, and his attorney did
nothing to ensure that
he got medical treatment.
Both Constable Mabitsela
and Warrant Officer Mokgomogane denied the assault. Although
Constable Mabitsela denied that he knew
the plaintiff nor that he
ever witnessed the alleged assault, his testimony was not disputed by
the plaintiff.
[30] In this regard, the
Court is now faced with mutually destructive versions and credibility
of the witnesses and the probabilities
play an important role.
On the evaluation of evidence I am not persuaded on a balance of
probabilities, that the plaintiff
has proved that he was assaulted by
the members of the defendants.
Malicious
Prosecution
[31] The essentials of a
successful claim of malicious prosecution were aptly stated by van
Heerden AJ in
Minister
for Justice and Constitutional Development v Moleko
[3]
and
the following has to be alleged and must be proven:
“
a) that the
defendants set the law in motion (instigated or instituted the
proceedings;
b) that the
defendants acted without reasonable probable cause;
c) that the
defendants acted with “malice” (or animus injuriandi);
and
d) that the
prosecution has failed”.
[32] Malice has been
described in
Rudolph
v Minister of Safety and Security
[4]
by
Mthiyane AJ and Van Heerden AJ as follows:
“
The
requirements of ‘malice’ have been the subject of
discussion in a number of cases in this court. The approach
now
adopted by this court is that, although the expression ‘malice’
is used, the claimant’s remedy in a claim
for malicious
prosecution lies under the action injuriarum and what has to be
proved in this regard is animus injuriandi. See
Moaki
v Reckitt and Colman (Africa) Ltd and
Another
[1968
(3) SA 98
(A) at 103 G-104 E]; and
Prinsloo
and Another v
Newman
[1975 (1) SA 481
(A) at 492 A-B]
”
.
[33] Warrant Officer
Mokgomogane acted in accordance with his authority by arresting the
plaintiff, (even without reasonable suspicion)
and brought him to
court. It was the Prosecuting Authority that decided to charge the
plaintiff. The court remanded the matter
and the plaintiff was held
in custody pending the finalization of the matter.
[34] The requirement of
malice has in my view not been met in this matter. It is clear
from the evidence of Warrant Officer
Mokgomogane that when he charged
the plaintiff on 30 November 2010, he honestly believed that the
plaintiff was involved in and
guilty of murder and this belief was
based on the information he had gathered. Even if it can be
said that it was a mistaken
belief, I am satisfied that it was a
belief he honestly held.
The court in
Moleko
(
supra)
in dealing with the requirement of malice took
the view that what was required was animus injuriandi and relied in
this regard
on the exposition by Neethling in
Law and Delict
(5
th
Ed) that:
“
In this regard
animus injuriandi
(intention)
means that the defendant directed his will to prosecuting the
plaintiff (and thus infringing his personality), in
the awareness
that reasonable grounds for the prosecution were (possibly) absent,
in other word, that his conduct was (possibly)
wrongful
(consciousness of wrongfulness). It follows from this that the
defendant will go free where reasonable grounds for
the prosecution
was lacking, but the defendant honestly believed that the plaintiff
was guilty. In such a case the second element
of dolus, namely
consciousness of wrongfulness and therefore, animus injuriandi, will
be lacking. His mistake therefore excludes
the existence of animus
injuriandi”.
[
35]
In the present case it could hardly be said that Warrant Officer
Mokgomogane acted with the recklessness that would satisfy
the
requirement of
animus
injuriandi
.
He honestly held a view that prosecution would succeed, which in
itself would exclude the existence of consciousness of wrongfulness.
Furthermore he never knew the plaintiff prior to this case. For these
reasons the claim in respect of malicious prosecution must
also fail.
Quantum of
Damages
[36] When assessing
damages in matters such as the present, the evaluation of the
personal circumstances of the plaintiff, the
circumstances around the
arrest and the nature and duration of the detention is taken into
account
[5]
. The testimony of the
plaintiff about his personal experiences and conditions that
prevailed in the police cells and what effect
the arrest had on him
is also taken into account. The plaintiff was 27 years old when he
was arrested for 21 days. Due to his
arrest he lost his job as a farm
worker. His stay in the cells was unbearable as he was ill-treated by
the other inmates.
[37] The purpose of an
award for general damages in the context of the matter such as the
present, is to compensate the claimant
for deprivation of personal
liberty and freedom and as well as the mental anguish and distress.
In
Minister of
Safety and Security v Tyulu
2009 (5) SA 85
(SCA)
at par 26
Bosielo AJA (as he was then)
emphasized that the primary purpose is “
not to enrich the
claimant but to offer him or her some much-needed solatium for his or
her injured feelings”.
[38] Although the
determination of an appropriate amount of damages is largely a matter
of discretion, some guidance can be obtained
by having regard to
previous awards made in comparable cases. Defendant’s
Counsel
[6]
referred me to the
relevant comparisons made in
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 326 A-D:
“
The following
awards also provide some indication of how other courts have viewed
incursions upon personal liberty (they are
by no meaning exhaustive
of the cases that have confronted the issue). In
Solomon
v Visser and
Another
,
a 48 year-old businessman who was detained for seven days, first in
a police cell and then in a prison, was awarded R4000 (R136
000). In
Areft
v Minister van Polisie
,
this court awarded a 41 year old businessman who was arrested and
detained for about two hours R1000 (R24 000). In
Liu
Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino
,
a businessman who was unlawfully detained for about three hours was
awarded R12000 (R16978). In
Manase
v Minister of Safety and Security and Another
,
in which a 65 year old businessman was unlawfully detained for 49
days, incarcerated at times with criminals, the sum of R90 000
(R102 000) was awarded. In
Seria
v Minister of Safety and Security and Others,
a professional man who was arrested and detained in a police cell
for about 24 hours, for a time with a drug addict, was awarded
R50 000 (R52 000). Money can never be more than a crude solatium
for the deprivation of what in truth can never be restored
and there
is no empirical measure for the loss”.
[39] Having regard to the
circumstances of the arrest, the duration of the detention, the
personal circumstances of the plaintiff,
the awards made in previous
comparable cases, I deem R200 000-00 to be a just and fair
amount of damages. Costs should
follow the cause.
[40] In the result, I
make the following order:
i) The plaintiff’s
actions against the defendants for unlawful arrest and detention
succeeds;
ii) the plaintiff’s
actions against the defendants for unlawful assault and malicious
prosecution are dismissed;
iii) the defendants
are ordered to pay the plaintiff an amount of R200 000-00 for
the unlawful arrest and detention;
iv) interest on the
amount a tempore morae at the rate of 15,5% per annum from the date
of service of the summons to date of
payment;
v) the defendants are
ordered to pay the plaintiff’s costs of suit.
D.S. MOLEFE
JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
on behalf of plaintiff :
Mr.
B E Mthimunye
Instructed by:
Masombuka and Mthimunye Attorneys
Counsel
on behalf of defendant :
Adv.
S J Coetzee
Instructed by : State
Attorneys
Date Heard: 25, 26, 27
November 2013
Date Delivered : 25
February 2014
[1]
Act 51 of 1977
[2]
[1969] 3 ALL ER 1627
(PC) at 1630
[3]
[2008] 3 ALL SA 47
(SCA) p 50 d-f
[4]
2009 (5) SA 94
(SCA) at 100 e-g
[5]
See Ngcobo v Minister of Police
1978 (4) SA 930
(D) at 935 B-F
[6]
Adv. S J Coetzee