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[2014] ZAGPPHC 295
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Stemar v Minister of Police and Another (4789/2012) [2014] ZAGPPHC 295 (16 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 4789/2012
DATE:
16 MAY 2014
In the matter
between:
KEVIN
STEMAR
............................................................................................................
Plaintiff
And
THE MINISTER OF
POLICE
................................................................................
1st
Defendant
THE NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
............................
2nd
Defendant
JUDGMENT
MATOJANE, J
Introduction
[1] This is a claim
for damages consequent upon an alleged unlawful arrest, unlawful
detention and malicious prosecution.
The plea is based on a
defence contained in s 40(1)(b) of the Criminal Procedure Act of 1977
(the Act), which provides for an arrest
by a peace officer without a
warrant of arrest.
[2] It is common
cause that plaintiff was arrested by employees of the first
defendant, acting within the course and scope of their
employment
with the South African Police Service, without a warrant of arrest on
28 November 2010 on a charge of a rape of a minor
child. Plaintiff
was subsequently taken to court and his bail application was refused.
The matter was remanded on numerous
occasions until if was
finalised on the 25 October 2011. The plaintiff was discharged
at the end of the state’s case.
The pleadings
[3] Claim 1 is the
claim arising from the alleged unlawful arrest. The plaintiff’s
particulars of claim as amended states:
“5.1 On or
about 28th November 2010 at or near the plaintiff’s permanent
place of residence; he was arrested without
a warrant by members of
the Jabulani Police station on the alleged charges of rape.
5.2 The plaintiff
was thereafter detained at the Jabulani Police Station at the
instance of the said arresting officers and various
other Policemen
until the plaintiff appeared in the Johannesburg Magistrate Court on
the 1st of December 2010.
5.3 The policemen
as aforesaid acted at all relevant times within the scope of their
employment with the First and Second Defendant;
5.4 As a result of
Plaintiff’s unlawful arrest and detention, Plaintiff suffered
damages in the amount of R150 000.00.”
[4] The defendant
admits the arrest but pleads that the arrest and the ensuing
detention was lawful in terms of
section 40(1)(b)
of the
Criminal
Procedure Act 51 of 1977
in that a charge of rape had been laid
against the plaintiff by the complainant who had pointed out
plaintiff as the perpetrator.
[5] Claim 2 is the
claim based on malicious prosecution. The claim is formulated
as follows in the particulars of claim:
“6. On or
about the 28th of November at the Plaintiff’s permanent place
of residence, the defendants wrongfully and
maliciously set the law
in motion by:
6.1 Charging the
plaintiff with rape; and
6.2 By insisting
that plaintiff be detained without bail without any evidence to
warrant criminal charges or plaintiff’s
detention When charging
and prosecuting the plaintiff, the first and second defendants had
no reasonable and or probable cause
for doing so, nor did they have
any reasonable belief and / or evidence in the truth of the
information at their disposal.”
[6] Because the
first defendant bore the onus of proving that the police’s
actions were justified in law, defendant testified
first. The
first defendant led the evidence of the complainant’s
stepmother, Mrs Ngubane, a witness to whom complainant
made the first
report about the alleged rape and the State Prosecutor. The
defendant also applied to have the statements
by the investigating
officer and the arresting officer both of whom had since died to be
admitted into evidence as an exception
to the hearsay rule. I
provisionally granted the application.
The evidence
[7] Ntombifikile
Ngubane, complainant’s stepmother testified that her sister,
Jeanette had sent complainant, who was then
15 years old, to a local
shopping centre to buy hairpieces on Sunday at about 10am.
Complainant took a long time to return
from the shops; Mrs
Ngubane went to look for complainant and reported the matter to the
police when she did not find her at the
shopping centre. Complainant
arrived home shortly after she herself got home at about 4pm.
Jeanette was the first to
inform her that complainant had been
raped. After inspecting the complainant, she and Jeanette went to the
street and flagged down
a passing police vehicle and reported the
rape. She requested the police to first take them to the
residential flat where
the alleged rape took place as complainant had
informed her that she knows the place. On arrival at
plaintiff’s flat,
the police knocked at the door, plaintiff
opened and complainant pointed plaintiff out as the person who raped
her. Under
cross-examination it was pointed out to her that in
her statement to the police she stated that a neighbour broke the
door and
two men were found inside the flat. She stated further
that neighbour managed to catch one of the suspects. She
replied
that there must have been a mistake as they found plaintiff
alone in the flat.
[8] The evidence of
Jeanette Zulu is to a large extend the same as that of Mrs Ngubane
except for the fact that she did not witness
the arrest. She
testified that she stopped a passing police car and told the police
that a child who was in the premises
had been raped. She walked
to the police station and was not present when plaintiff was
arrested.
[9] The third state
witness was Mrs Cheryl Slack, who is employed by the National
Director of Public Prosecution as a regional court
prosecutor; she
testified that based on her perusal of the complainant’s
statement, statement by the arresting officer, the
doctor’s
report and statement by other witnesses she was satisfied that the
state had a prima facie case and proceeded with
the prosecution of
the plaintiff despite the fact that the DNA report excluded the
plaintiff as the donor of the semen found in
the complainant’s
panties.
[10] She conceded
under cross-examination that the complainant’s statement was
not commissioned and was not dated. It
was suggested to Mrs
Slack that upon receipt of the DNA evidence confirming that plaintiff
was not linked to the alleged rape,
the state should have withdrawn
charges against the plaintiff and accordingly plaintiff’s
continued detention became unlawful
and malicious. She
testified that at the request of plaintiff’s legal
representative, they approached the senior prosecutor
to discuss the
matter. Based on the fact that the complainant was a minor and
that her mother corroborated her version and
the medical evidence
indicated signs of vaginal penetration having taken place and that
the complainant was able to point out the
scene of the alleged crime
and identify plaintiff as the perpetrator, she came to a conclusion
that the state had a prima facie
case even if the DNA report
indicated otherwise. She further stated that the plaintiff who
was represented could have brought
another bail application on new
facts as the defence was furnished with the DNA analysis report.
Plaintiff’s
evidence
[11] The plaintiff
for his part testified that the police arrested him at his home on
the 28 November 2010 until the 1 of December
2011 when he was
discharged. He had been to a hip-hop session the previous day
where he was performing and selling t-shirts.
The session
started on Saturday at 2 pm and ended on Sunday morning. When
he got to his flat he sat with his friends and
they all went to sleep
at 9:30 am. At about 11am his friend, Siyabonga came to visit
him in the company of the complainant.
They sat with him until he
again fell asleep. Later Siyabonga woke him up to tell him that
he was leaving, he fell asleep
again. Hours later he was woken
by a knock at the door when the police ordered him to open the door.
[12] The police
asked permission to come in and one of the policeman said that there
were other people outside. The policeman brought
them in. Complainant
was among the people who were brought inside the flat, the policeman
asked complainant if plaintiff was the
person who raped her,
plaintiff was then handcuffed. The police went with complainant
into the bedroom and came out with
his friend who was also
handcuffed. Plaintiff told the police that he did not know
complainant and took police to Siyabonga’s
house where they
found the security gate locked. His bail application was
refused. He was incarcerated for the full
period while the
matter was brought before court and remanded on numerous occasions
and ultimately placed for plea and trial on
the 25 November 2011,
when he was discharged at the end of the state’s case.
Discussion
[13] Section
40(1)(b) of the Act provides as follows:
“(1) A peace
officer may without warrant arrest any person-
(a) …;
(b) whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from
lawful custody;
(c) …”
[14] In order to
succeed in a defence based on section 40(1)(b) of the Act the
defendant is required to establish:
(i) that the
arrestor is a peace officer;
(ii) that the
arrestor in fact entertained a suspicion;
(iii) that the
suspicion which he held was that the suspect (the arrestee) had
committed an offence which is referred to in
Schedule 1 (not being
the offence of escaping from lawful custody); and
(iv) that the
suspicion rests upon reasonable grounds.
(See Duncan v The
Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H.)
[15] It is not in
dispute that Warrant Officer Tleane was in fact a peace officer as
defined in the Act nor that rape of a minor
is an offence referred to
in Schedule 1 of the Act. What falls to be decided is
accordingly whether Warrant Officer Tleane
entertained a suspicion
that the plaintiff had raped the minor child and whether reasonable
grounds existed for such a suspicion.
It is clearly established
on the evidence of Mrs Ngubane and Zulu that their only source of
information about the alleged rape
is the complainant herself. The
plaintiff’s unchallenged evidence under oath is that he told
the police that complainant
came with his friend, Siyabonga at his
flat. Mrs Ngubane in her statement to the police, when the
events were still fresh
in her mind stated that a neighbor broke the
plaintiff’s door and two men were found inside the flat. She
stated that
a neighbor managed to catch one of the suspects.
Complainant on the other hand stated that the front door
neighbor heard
her screams, came and broke the door open and found
her on the bed naked and one suspect ran away and the other locked
himself
in the bedroom.
[16] The requirement
that the arrest be made only on probable cause, in my view, requires
that an arrest without a warrant must
stand on firmer grounds than
mere suspicion, the arresting officer has a duty to exercise due
diligence in making sure that the
person arrested and detained is
actually the perpetrator otherwise, law-abiding citizens will be left
at the mercy of the officer’s
whim. In my view, the
particularity of the information on which a warrant of arrest may be
issued cannot be less stringent
than where a warrant is absent; the
question therefore in this case is whether the arresting officer
could, on the information
before him, have procured a warrant of
arrest of the plaintiff. I think that no warrant would have
been issued on the evidence
then available. The arresting
officer never bothered to interview and obtain a statement from
Siyabonga who it appears played
a role in the commission of this
alleged rape.
[17] Section
40(1)(b) does not require direct evidence but requires of an
arresting officer to hold a suspicion and that such suspicion
should
rest upon reasonable grounds. The above factors, in my opinion,
do not constitute very strong circumstantial evidence,
which would
found a reasonable suspicion that plaintiff raped the complainant.
In the circumstances I consider that the defendants
have not
established all the jurisdictional facts required to justify an
arrest in terms of section 40(1)(b) of the Act.
[18] Section 39(3)
states “The effect of an arrest shall be that the person
arrested shall be in lawful custody and he shall
be detained in
custody until he is lawfully discharged or released from custody”.
This section pre-supposes that an
arrest will be valid. If the arrest
of a person is unlawful, his or her subsequent detention will also be
unlawful. Du Toit
et al 5-5 (note 17). The claim based on
unlawful arrest and detention must accordingly succeed. That
leaves claim 2.
I turn to deal with it.
Claim 2: Malicious
Prosecution.
[19] In order to
succeed in a claim for malicious prosecution the plaintiff is
required to establish that:
(a) The defendant
set the law in motion by instigating or instituting legal
proceedings;
(b) The defendant
acted without reasonable and probable cause;
(c) The defendant
acted with malice;
(d) The prosecution
has failed.
See Minister of
Justice and Constitutional Development v Moleko
2008 All SA 47
(SCA).
[20] It is common
cause that the law was set in motion as envisaged above and plaintiff
was discharged at the end of the state’s
case after a year.
What remains to be established is whether defendants acted without
reasonable and probable cause with
animo iniuriandi. At
paragraph 6.2 of his Particulars of claim, plaintiff alleges that
defendants acted “wrongfully
and maliciously” by charging
the plaintiff with rape and insisting that plaintiff be detained
without bail without any evidence
to warrant criminal charges or
plaintiff’s detention.
[21] I now proceed
to determine whether plaintiff has established absence of reasonable
and probable cause with animo iniuriandi.
In Relyant Trading
(Pty) Ltd v Shongwe
[2007] 1 ALLSA 375
(SCA) para 14 the court set
out the test to be applied as follows:
“The
requirement for malicious arrest and prosecution that the arrest and
prosecution be instituted in the absence of reasonable
and probable
cause was explained in the Beckenstrater v Rottcher and Theunissen
[1955 (1) SA 129
(A) at 136 A-B] as follows:
"Where it is
alleged that a defendant had no reasonable cause of prosecuting, I
understand this to mean that he did not have
such information as
would lead a reasonable man to conclude that the plaintiff had
probably been guilty of the offence charged;
if despite his having
such information, the defendant is shown not to have believed in the
plaintiffs guilt, a subjective element
comes into play and disproves
the existence, for the defendant, of reasonable and probable
cause."
“It follows
that a defendant will not be liable if he or she held a genuine
belief founded on reasonable grounds in the
plaintiffs guilt. Where
reasonable and probable cause for an arrest or prosecution exists the
conduct of the defendant instigating
it is not wrongful. The
requirement of reasonable and probable cause is a sensible one: for
it is of importance to the community
that persons who have
reasonable and probable cause for a prosecution should not be
deterred from setting the criminal law in
motion against those whom
they believe to have committed offences, even if in so doing they
are actuated by indirect and improper
motives, [see Beckenstrater v
Rottcher and Theunissen 135 D- E]"
[22] It follows
that not only must the defendant have subjectively had an honest
belief in the guilt of the plaintiff, but his
or her belief and
conduct must have been objectively reasonable, as would have been
exercised by a person using ordinary care and
prudence. Mrs
Slack testified that she had the contents
of the docket at
her disposal, she relied on the information conveyed to her by Mrs
Ngubane, Mrs Zulu,(the latter two can only
tell her what they were
told by complainant) the complainant and the medical report.
The belief of the state prosecutor,
in my view, could not have been
objectively reasonable because complainant was a single witness
regarding the alleged rape and
her evidence is unsatisfactory in all
material respects. It is perhaps important to note and to ask the
question as to why the
state prosecutor opposed plaintiff’s
application for bail in the light of such contradictory statements in
the docket and
also why after receiving the DNA analysis report that
excluded plaintiff as the donor of the semen found on complainants
panties,
the state did not withdraw charges against the plaintiff.
Finally why was the case postponed eleven times for further
investigations
without the state realising that it did not have a
strong case and having plaintiff released on bail.
[23] By her own
admission, the Mrs Slack consulted with the complainant on the date
of the trial, had she consulted with the complainant
and other
witnesses earlier when the matter was postponed, and instructed the
investigating officer to obtain a statement from
Siyabonga, she would
have realized that the vague suspicions and allegations by the
complainant and other witnesses could not be
transformed into
probable cause.
[24] Pre-trial
detention unquestionably involves a serious deprivation of individual
liberty and must be justifiable according to
the demands of the Bill
of Rights. That the defendant’s case was based on shaky
grounds is borne out by the fact that
the case had to be postponed in
court eleven times for further investigations over a period of a
year. In my view, the defendants
were obliged to consider, each
time that the matter was postponed for further investigation, whether
there is a reasonable apprehension
that the plaintiff will abscond or
fail to appear in court if released on bail. In the
circumstances of this case, it was
in my view, constitutionally
untenable for the magistrate to have allowed so drastic an invasion
of the plaintiff’s personal
liberty by agreeing to so many
postponements when charges could have been withdrawn and plaintiff
recharged when the defendants
were ready to proceed with the
prosecution. To summarise, I find that defendants acted without
reasonable and probable cause with
animo iniuriandi.
Hearsay evidence
[25] The defendant
brought an application in terms of section 3 of Act 45 of 1988 for
the admission of hearsay evidence emanating
from the statements of
the investigating officer and the arresting officer both of whom have
since died. The plaintiff opposed
the application on the basis
that he will be prejudiced in his case as such evidence cannot be
subjected to cross-examination to
test whether it is trustworthy.
[26] Section 3 of
Act 45 of 1988 sets out clear rules in regard to the admission of
hearsay evidence. It reads:
“3(1) Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil
proceedings, unless:
(a) each party
against whom the evidence is to be adduced, agrees to the admission
thereof as evidence at such proceedings;
(b) the person upon
whose credibility the probative value of such evidence depends,
himself (or one can read herself in there as
well), testifies at such
proceedings, or;
(c) the court having
regard to
(i) the nature of
the proceedings;
(ii) the nature of
the evidence;
(iii) the purpose
for which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence might entail; and
(vii) any other
factor which should in the opinion of the court, be taken into
account,is of the opinion that such evidence should
be admitted in
the interests of justice.”
[27] It is necessary
to first determine whether the statements by the investigating
officer and the arresting officer are, indeed
hearsay evidence. The
Act in section 4 clearly defines hearsay evidence and reads as
follows:
“For the
purposes of this section, hearsay evidence means evidence, whether
oral or in writing,
the probative value of
which depends upon the credibility of
any person other than the person giving
such evidence.”
Based on this
definition, it is clear that the statements are in fact hearsay
evidence as per definition. I must therefore,
determine whether
the evidence is to be admitted in terms of section 3.
SECTION 3(1)(a):
[28] The defendant
does not agree to the admission of the hearsay evidence as evidence
in these proceedings.
SECTION 3(1)(b):
[29] It is common
cause that “the persons upon whose credibility the probative
value of the evidence depends”, have
since passed away.
SECTION 3(1)(c):
[30] What remains is
for this Court to decide whether such evidence should be admitted in
the interests of justice. Section
3(1)( c) sets out seven
factors and circumstances to be considered in deciding whether such
evidence should be admitted. Many of
the factors are also
interlinked:
(i) THE NATURE OF
THE PROCEEDINGS:
This is a civil
trial in which the issue to be decided is whether the police officers
had reasonable grounds for arresting the plaintiff
without a warrant.
(ii) THE NATURE OF
EVIDENCE:
The nature of the
evidence on the face of the statements made by the two officers is
not difficult to establish. In his statement
warrant officer
Tleane corroborates the evidence of Mrs. Ngubane that Mrs. Ngubane
stopped him as he was doing patrol duties and
was informed that
complainant had been raped at Jabulane flats. He arrested
plaintiff after complainant had pointed him out.
At the time of
his arrest, plaintiff was with his friend, Siyabonga who was not
arrested despite complainant’s allegation
that she was abducted
and raped by two males. There can be no doubt that there are
significant dangers and, therefore, also real
prejudice to the
plaintiff in admitting such evidence. The plaintiff told the police
that complainant came to his flat in the company
of Siyabonga,
plaintiff will not be afforded an opportunity to test the
credibility of the statement made by the arresting officer
that
complainant told him that Siyabonga was asleep when plaintiff was
raping her. The role, if any of Siyabonga cannot be ignored,
Mrs.
Ngubane in her statement said a neighbour caught one suspect who was
fleeing and complainant also stated that another suspect
fled. The
plaintiff would not be able to subject such evidence to through
cross-examination
(iii) THE PURPOSE
FOR WHICH THE EVIDENCE IS TENDERED:
It is clear that the
evidence is sought to be admitted in order to dispense with the
requirement to establish the jurisdictional
facts required by
section 40(1)(b) of the Act. This evidence is decisive in that it is
the only evidence relied upon by the defendants
to prove that the
employees of the defendants reasonably suspected that plaintiff
committed an offence referred to in Schedule
1.
(iv)
THE PROBATIVE VALUE OF THE EVIDENCE:
The statements are
of limited probative value. The arresting officer confirms the
evidence of Mrs Ngubane and Mrs Zulu that they
told him that
complainant had been raped and that he arrested the plaintiff. The
statement does not reinforce the other evidence
about what happened
at the time of plaintiff’s arrest. Both Mrs Ngubane and
complainant have different versions about the
role of Siyabonga at
the time plaintiff was arrested. Most importantly, the statement does
not explain on what basis did the arresting
officer reasonably
suspect that plaintiff raped the complainant apart from the say so
of the minor complainant.
(iv) THE REASON WHY
THE EVIDENCE IS NOT GIVEN BY THE PERSON UPON WHOSE CREDIBILITY THE
PROBATIVE VALUE OF SUCH EVIDENCE DEPENDS.
The reason is
obvious. The authors of the statements are deceased.
(v) ANY PREJUDICE
TO A PARTY WHICH THE ADMISSION OF SUCH EVIDENCE MIGHT ENTAIL.
In dealing with the
other relevant factors, I have already indicated that
plaintiff will be prejudiced by the admission
of the evidence of the
arresting officer. The prejudice to plaintiff in respect of the
other statement by the investigating
officer lies in the fact that
plaintiff cannot elicit favourable concessions from the evidence by
the investigating officer that
he traced the neighbour and the
later told the investigating officer that he knows nothing about
alleged rape. The plaintiff
will further be denied an
opportunity to challenge the evidence by the
investigating officer that he was subsequently
told that the person
who rescued complainant was taken by the police and was released at
the police station. The contents
of the two statements are not
capable of being clarified or even amplified without the testimony
of the two officers.
(vi) ANY OTHER
FACTOR WHICH SHOULD, IN THE OPINION OF THE COURT, BE TAKEN INTO
ACCOUNT:
The evidence
contained in the two statements do not establish the jurisdictional
facts for a section 40(1)(b) defence.
[31] After
considering all the relevant factors, I find that the evidence of the
two officers should not, in the interest of justice,
be admitted as
evidence against the plaintiff in terms of the provisions of section
3(1)(c) of the relevant Act.
[32] In summary, my
conclusion is that the defendants have failed to discharge the onus
that rest on them to justify the arrest
of the plaintiff, accordingly
both claims by the plaintiff succeeds.
[33] I turn now to
the question of quantum to which the plaintiff is entitled as a
result of his unlawful arrest and malicious prosecution.
I have
had regard to the fact that plaintiff, who is presumptively an
innocent man, has been in custody for a period of a year
awaiting
trial where there was no probable cause to believe that he had
raped the complainant. The burden of a prolonged
pre-trial
detention is substantial where it is as a result of deliberate
violation of persons basic constitutional rights.
That
plaintiff’s family relationships and source of income has been
impaired is beyond question. It cannot be denied
that
plaintiff’s feeling of self-respect was impaired by being
falsely accused of raping a minor child and having to appear
in court
on eleven occasions when the matter was postponed. In these
circumstances, I am of the view that damages in the
amount claimed
are appropriate to assuage plaintiff’s violated constitutional
rights. I am also of the view that it
is not fair for the
plaintiff to be put out of pocket for seeking to right a wrong
committed against him when his constitutional
rights were violated in
this manner, accordingly a punitive costs order is called for.
Costs and the
order
[34] The following
order is made
(a) Claim 1: The
defendants are ordered jointly and severally to pay the plaintiff
the amount of R100 000.00.
(b) Claim 2: The
defendants are ordered jointly and severally to pay plaintiff the
amount of R350 000.00.
(c) Interest on the
abovementioned amounts at prescribed rate from the date of summons
to date of payment.
(d) The defendants
are further ordered jointly and severally to pay plaintiff’s
costs on an attorney and client scale.
K E MATOJANE
JUDGE OF THE HIGH
COURT