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[2013] ZAGPPHC 387
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Rautenbach v Minister of Safety and Security and Others (48774/09) [2013] ZAGPPHC 387 (20 November 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
no: 48774/09
Date:
20 November 2013
Not
reportable
Not
of interest to other judges
In
the matter of
PIETER
ABRAHAM RAUTENBACH
…………………………….
Plaintiff
and
MINISTER
OF SAFETY AND SECURITY
……………..
First
Defendant
THOMAS
FOSO MOKGATLE
………………………..
Second
Defendant
PETRUS
PINI MAKGOPELA
……………………………
Third
Defendant
KEALEBOGO
BENEDICT BOHELO
…………………
Fourth
Defendant
JUDGMENT
KEIGHTLEY.
AJ
1.This
is an action for malicious prosecution against the Minister of Safety
and Security and three police officers, being the second
to fourth
defendants. When I refer collectively to “the defendants”
this should be read as a reference to the second
to third defendants.
2.The
plaintiff, Mr Rautenbach, was at the material time the Chair of the
Community Policing Forum (“the CPF”) in Hartbeespoort,
where the events in question took place.The defendants were all
officers in the detective branch at the Hartbeespoort police station.
2.It is
common cause that the plaintiff was arrested on 30 October 2008 and
charged with intimidation and with interfering with
police in the
execution of their duties. The police originally attempted to arrest
the plaintiff on 29 October at a public venue
where he was, together
with the Station Commander of the Hartbeespoort police station,
Senior Superintendent Lebese, addressing
a public meeting of
pensioners. It was only with Senior Superintendent Lebese’s
intervention that the plaintiff was not arrested
then, but was
allowed to present himself at the police station the following day
for the arrest to be effected.
3.The
complainant in the criminal case against the plaintiff was the second
defendant, Detective Mokgatle. It is common cause that
he made the
original statement of complaint in the matter, and that he caused the
docket to be opened against the plaintiff.
4.The
plaintiff was held in custody at the cells at the Hartbeespoort
police station for approximately 2 hours. Members of the press
were
present and at least one photograph of him behind bars was posted on
an internet news site. There was also press coverage
of his arrest
and the charges against him in local newspapers.
5.The
plaintiff subsequently appeared in court four or five times after his
arrest until the charges were withdrawn on 9 April 2009
on the
instructions of the Director of Public Prosecutions (“the
DPP”). This followed representations to the DPP by
the
plaintiff’s attorney. It is common cause that the plaintiff
expended R29 884.80 in legal fees as a result of the charges
that
were brought against him. This amount forms part of his damages claim
for patrimonial loss.
6.In
addition to the statement made by the second defendant, the third and
fourth defendants also made formal statements in support
of the
charges. It was on the strength of these statements that a warrant of
arrest in respect of plaintiff was issued and the
prosecution
commenced.
7.The
plaintiff avers that the charges were based on statements by the
defendants containing allegations that the plaintiff attempted
to
assault the second defendant; he threatened second defendant with
physical violence; he intimidated the second defendant; he
used
violence in an attempt to remove a docket from second defendant’s
possession; and he barged into an office where the
second defendant
was busy interviewing a suspect.
8.In
short, the plaintiff’s case is that the statements made by the
defendants were false,
and that
the charges against the plaintiff were instituted with the defendants
knowing that such statements were false. The plaintiff
avers that the
subsequent criminal proceedings against him were malicious.
9.The
crux of the case therefore turns on this issue and, specifically, on
whether the defendant’s version of the events that
occurred on
22 October 2008, as set out in these statements, is true or, as the
plaintiff avers, false.
10.The
following background facts are relevant to the matter:
10.1.On
22 October 2008 a Mr Jonker attended the Hartbeespoort police station
accompanied by his attorney Mr Loubser.
10.2.Mr
Jonker’s family previously had obtained a protection order
against an ex-boyfriend of their daughter. The ex-boyfriend
had
breached the protection order and the police were called to the
Jonker’s house to arrest him.
10.3.On
the evening of 21 October 2008 Detective Constable Memwe, the
investigating officer, telephoned Mr Jonker to request that
he attend
the police station the following morning. What he did not tell Mr
Jonker on the telephone was that the police actually
intended to
arrest Mr Jonker the following day on a charge of pointing a firearm
at the ex-boyfriend. This was alleged to have
occurred on the evening
that the ex-boyfried had breached the protection order and climbed
over the wall of the Jonker’s
property. Mr Jonker was led to
believe by DC Memwe that he would be providing the police with
further information in the protection
order case. Quite why Mr Jonker
was misled in this manner was never satisfactorily explained when DC
Memwe gave evidence at the
trial.
10.4.When
Mr Jonker and Mr Loubser arrived the next morning they were not
interviewed by DC Memwe but by the second defendant. The
second
defendant made it clear to Mr Jonker that he was actually the suspect
on a charge of pointing a firearm and that the second
defendant
intended arresting him. Mr Jonker and his attorney were
understandably shocked at this news.
10.5.This
prompted Mr Loubser to phone the plaintiff and to request that he
attend the police station in his capacity as Chair of
the CPF.
10.6.The
reason for this request is that the plaintiff had recently put an
advert in the local newspaper altering the public to
the fact that
there had been complaints about the conduct of police officers at the
Hartbeespoort police station. These complaints
were to the effect
that the police officers had threatened to arrest people who were
actually complainants in criminal cases on
spurious charges. The
allegations were that this seemed to be done with the purpose of
extracting bail money and money for lawyers’
fees out of the
complainants when they suddenly found themselves to be facing arrest
as suspects.
10.7.The
advert called on the public to report any such incidents to the
plaintiff, and it gave the plaintiff’s phone number.
I pause to
point out that this case does not turn on whether or not the
complaints of police misconduct were valid or not. However,
for
reasons that will become apparent below, the fact that the complaints
had been made is a relevant factor for purposes of determining
whether the plaintiff has made out a case for malicious prosecution.
10.8.Mr
Loubser contacted plaintiff because in his view the threat to charge
Mr Jonker was spurious and fell into the kind of conduct
to which the
advert referred. Mr Loubser also contacted a local journalist. It is
common cause that she was present at the police
station when the
events in question unfolded.
10.9.It
is common cause that the plaintiff arrived at the police station in
response to this request.
10.10.It
is also common cause that at this stage, the second defendant, Mr
Jonker and Mr Loubser were in what is referred to as
the detective’s
office interviewing Mr Jonker for purposes of his arrest. I shall
refer to it as “the office”.
11.It is
what occurred next that lies at the heart of this case. The court is
faced with two mutually destructive versions of the
events that
followed.
12.The
defendants’ version is that:
12.1.Plaintiff
walked down the passage towards the office complaining and making a
noise.
12.2.He
then entered the office. He was extremely aggressive.
12.3.He
instructed the second defendant to stop the process against Mr Jonker
because he was a well-known member of the community.
12.4.Plaintiff
was pointing his finger at the second defendant, and then he tried to
grab the docket from him. A physical tussle
over the docket ensued.
Fourth defendant and DC Memwe had to intervene to try to push the
plaintiff out of the office. In the course
of this, plaintiff pushed
the fourth defendant on the chest.
12.5.The
officers managed to get the plaintiff out of the office.
12.6.Thereafter,
second and fourth defendants, together with other officers and Mr
Jonker drove to the Total garage owned by Jonker
to collect Jonker’s
firearm from the safe.
12.7.On
their return the plaintiff was waiting in the parking area and once
again he shouted at the second defendant and threatened
him.
12.8.On
the basis of this conduct on the part of the plaintiff, second
defendant laid the charges of intimidation and interfering
with the
police in the execution of their duties against the plaintiff and the
prosecution was set in motion.
13.The
plaintiff’s contrary version is that:
13.1.Plaintiff
indeed attended the police station on the afternoon in question in
response to a call from Mr Loubser.
13.2.He
was accompanied by Mr Van Der Spuy and Mr Kekana, both fellow
committee members of the CPF.
13.3.Plaintiff
did not know precisely what the situation was except that the call
from Mr Loubser was in response to the advert,
and that he understood
from Mr Loubser that a similar incident was taking place at the
police station.
13.4.When
he arrived at the police station, plaintiff, together with his fellow
committee members, first went to see the Station
Commander, Senior
Superintendent, Lebese to tell him about the telephone call he had
received and to ask for someone to accompany
him to the detectives
office. The Station Commander’s response was to the effect that
he did not want to interfere. He said
that the plaintiff should go to
the office via the head of detectives, Captain Dikgang’s,
office.
13.5.Plaintiff
and his fellow committee members did this, and Captain Dikgang
thereafter went ahead of them down the passage to
the detectives’
office.
13.6.When
they got to this office, Captain Dikgang went inside, but plaintiff
did not. Plaintiff could not see into the office as
there were police
officers standing in the doorway.
13.7.Mr
Loubser put his head out of the office door and confirmed that he had
made the phone call to the plaintiff. He told plaintiff
that he would
be out shortly. Plaintiff indicated that he was going down to the
Station Commander's office and would meet him there.
He then left the
area outside the detectives’ office.
13.8.Needless
to say, the plaintiff’s version is in stark contrast with that
of the defendants. He testified that he never
went into the
detectives’ office, he did not give any instructions to the
second defendant to cease the arrest of Mr Jonker.
He says that did
not shout at anyone, make threats, point fingers, or push any
officers. He also testified that he was not involved
in any tussle
over Mr Jonkers’ docket.
13.9.The
plaintiff also avers that there was absolutely no threatening
interaction with the second defendant in the parking lot
when second
defendant and his fellow officers arrived back from Mr Jonker’s
garage.
13.10.The
plaintiff’s case is that the allegations made in the
defendants’ statements in support of the charges against
him
were false. He says that the defendants trumped up the charges
against him because he had placed the advert in the newspaper.
In
addition, he had made a number of formal complaints against the
second defendant and other members of the Hartbeespoort police
station, based on public complaints, and he had requested that a Task
Team be formed to investigate. The plaintiff contends that
this
provided a motive for the detectives to trump up the charges against
him as they were in the frame in terms of the Task Team
investigation.
14.On
this latter point, the defence's initial line of attack was to
suggest that the plaintiff had only laid these complaints and
requested the initiation of the Task Team after the incident of 22
October 2008 and the laying of criminal charges laid against
him. Had
this been the case, it would have removed the possibility of there
being any ulterior motive on the part of the defendants
in laying
criminal charges against the plaintiff. Indeed, it would have
suggested that it was plaintiff himself who had acted out
of malice
and revenge.
15.However,
this line of defence came to nought after the plaintiff tendered
evidence to confirm that the plaintiff’s complaints
process had
indeed been set in motion before the 22 October.
16.It is
clear therefore that this court is faced with two mutually
destructive versions of events: either the defendants’
version
is correct and the plaintiff aggressively tried to
interfere
with the investigation against Mr Jonker, or the plaintiff’s
version is correct and he did no such thing. If the
defendants’
version is correct, and their statements correctly recorded the
incident and the plaintiffs conduct, there can
be no question of any
malicious prosecution. On the other hand, if the plaintiffs version
is correct, then the defendants’
statements were patently
false, and the court will have to find that the proceedings
instituted on the basis of them were wrongful
and unlawful.
17.In
light of the mutually destructive versions, I must make my decision
on the basis of which version is the more probable.
18.As
far as the plaintiff’s evidence before this court is concerned,
he and three additional witnesses testified in support
of his case.
They were Mr Van Der Spuy, Mr Loubser and Mr Jonker.
19.The
evidence of all of these witnesses corroborated that of the plaintiff
in all material respects. They were all clear in their
testimony that
the plaintiff never entered the detectives office and that no
incident such as the one described in the defendants’
statements ever took place. It is common cause that Mr Loubser and Mr
Jonker were present in the office when the alleged incident
took
place and that they could not have avoided observing it, had it
occurred.
20.They
were also clear that no incident took place later in the parking area
either. In this regard, Mr Jonker testified that he
was with the
second defendant the whole time before, on and after their arrival
back from the Total garage, as he was under arrest
at that time and
the second defendant was the arresting officer. He confirms that
during this whole time there was no altercation
between the plaintiff
and the second defendant. Once again, it is common cause that he
could not have avoided witnessing any altercation
if it had taken
place.
21.Mr
Loubser and Mr Jonker both testified that it was the second defendant
who acted unreasonably and aggressively towards them
when he was
charging Mr Jonker. They testified that he had been insistent on
pressing ahead with the charges despite being told
about the fact
that Mr Jonker and his family were the real complainants, and despite
Mr Jonker telling the second defendant that
he did not even have a
firearm in his possession on the night of the alleged incident with
the ex-boyfriend, as the firearm was
stored in the safe at this Total
garage at all times. They testified that the second defendant would
not listen to reason. Mr Loubser’s
evidence was to the effect
that it was this conduct on the part of the second defendant that had
prompted him to phone the plaintiff
as the head of the CPF to alert
him and to request his assistance.
22.The
defence was unable to shake any of the plaintiff’s witnesses in
cross-examination.
The best
the defence could do was to put to them that they were lying and that
the version that the defence witnesses would give
was the true
version if events. The suggestion was also made that Mr Jonker and Mr
Loubser had an interest in supporting plaintiff’s
version.
However, their uncontested testimony demonstrates that neither of
these men knows the plaintiff well at all, and that
they knew him
only as the Chair of the CPF. Mr Jonker took no steps against second
defendant after the charges against Mr Jonker
were withdrawn the
following day, and he testified that the second defendant apologised
to him for his conduct. There does not
appear to me to have been any
reason for either Mr Loubser or Mr Jonker to support the plaintiff’s
case out of any ulterior
motive. Mr Loubser testified that he was
both a prosecutor and a Magistrate before he commenced practising as
an attorney, and
there was no real attempt on the part of the defence
to convince me that Mr Loubser was acting contrary to his duty as an
officer
of the court with extensive experience of court proceedings
by lying in his testimony.
23.The
plaintiffs witnesses came across to the court as being credible
witnesses.
24.Unfortunately
the same cannot be said of the witnesses for the defence. To a man,
they gave evidence that was internally contradictory,
as well as
contradicting the evidence given by the other defence witnesses in
very material respects. They were evasive when pressed
on issues that
were problematic for their version and they had no qualms in adapting
their evidence as they went along in an attempt
to paper over obvious
cracks.
25.As
each new defence witness took the stand the court heard a somewhat
different version of events. For example, the fourth defendant
said
that the whole incident was part of a plot by another officer, Mr
Phego, who he said had used the plaintiff to issue threats
to the
second defendant. There was no evidence to support this, nor did
fourth defendant give any reason why the plaintiff would
have been
willing to be used in this way. Then, when the second defendant took
the stand, he said that the incident was part of
a carefully planned
plot by the plaintiff himself, and he said he knew of no plot by Mr
Phego.
26. The
various contradictions in the defendants’ witnesses’
evidence are too numerous to set out in detail. I highlight
only the
following more significant contradictions:
26.1.Fourth
defendant testified that he was in the detectives’ office from
the time that the plaintiff entered and that he
witnessed the full
events that took place there. He said that he had followed plaintiff
down the passage.
26.2.However,
DC Menwe, the third defence witness, testified that fourth defendant
only came into the office during the wrestling
match over the docket.
He further testified that this took place about 5 minutes after he
and the plaintiff had first entered the
office.
26.3.This
contradiction places in question the veracity of the fourth
defendant’s evidence as to what he saw and heard before
the
tussle over the docket ensued.
26.4.Captain
Dikgang testified that he came into the detectives’ office
within less than a minute of plaintiff leaving his,
Captain Dikgang's
office. He says that he saw plaintiff in the detectives’ office
when he entered.
26.5.However,
DC Menwe testified that Captain Dikgang only came into the Detectives
office after the plaintiff had already left
that office. On his
version, this would have been about 15 minutes after the plaintiff
had first entered the detectives’
office.
26.6.Critically,
this places fundamental doubt on the veracity of Captain Dikgang’s
version that he saw plaintiff in the detectives’
office.
26.7.Furthermore,
the second defendant gives two different versions as to when Captain
Dikgang came into the office. He first testified
that he came in
while he, second defendant, was processing Mr Jonker’s arrest
after coming back from fetching the firearm
at the Total garage.
Later he testified that Captain Dikgang had come into the office
during the earlier incident with plaintiff,
while the fourth
defendant and DC Menwe were trying to push the plaintiff out of the
office. However, Captain Dikgang himself says
he never witnessed any
of the incident that was alleged to have taken place in the office,
and that he simply found the plaintiff
in the detectives’
office and that at that stage everything had looked to be under
control.
26.8.Once
again, we are left doubting both Captain Dikgang’s version and
the second defendant’s version. This doubt
is significant,
bearing in mind that the plaintiff testified that Captain Dikgang
went ahead of him to the detectives’ office
and that although
the Captain entered the office, the plaintiff never did.
26.9.In
addition to the contradictions regarding which of the officers
involved was actually in the office when the plaintiff was
allegedly
interfering in the arrest of Mr Jonker, there are other related
contradictions. So, for example, Captain Dikgang says
he heard no
noise coming from the detectives’ office or from the common
passage outside his and the detectives’ office.
26.10.On
the other hand, fourth defendant testified that plaintiff was
complaining loudly as he walked down the passage towards
the office.
The defence witnesses describe the plaintiff as being aggressive and
making a noise when he was threatening the second
defendant. By all
accounts the struggle over the docket was physical and must have
given rise to a fair amount of noise. Yet, despite
all of this
evidence, Captain Dikgang testified that he never heard any noise in
the passage or from the detectives’ office
at the material time
even though his office was in relatively close proximity to the
detectives office, and he would normally hear
noise coming from
there.
26.11.These
contradictions cannot be reconciled and they place fundamental doubt
on whether the defence witnesses could, in truth,
have witnessed what
they say they witnessed.
27.In
this regard, the second defendant must be singled out as being a
particularly unimpressive witness. I highlight a few examples
to
demonstrate this:
27.1.In
his evidence in chief he was adamant that he had laid the complaint
and opened the docket against the plaintiff on the day
of the
incident, i.e. on 22 October 2008. In cross-examination it was
pointed out to him that the cover page of his statement was
clearly
dated 23 October, being the following day. He was unable to explain
this discrepancy.
27.2.When
it was also pointed out to him that the very statement that he made
to support the laying of charges against the plaintiff
was not
commissioned by a Commissioner of Oaths, he could not explain this
either. The best he could do was to say that he was
in such a state
because of the plaintiff’s alleged conduct that he could not
remember what had transpired before the Commissioner
of Oaths,
although he was adamant he went before one. According to the second
defendant, he was shaking and crying and was in such
a bad way that
he had gone home early. He said that he even had to ask fourth
defendant for his assistance when he took Mr Jonker’s
fingerprints, as he, second defendant, was shaking so much.
27.3.Strangely,
none of the other defence witnesses who were with the second
defendant at the relevant time mentioned that he had
shown any such
signs of distress. In fact, the fourth defendant in particular said
that he did not regard the incident as being
very serious. Fourth
defendant also never mentioned that second defendant was in such a
bad way that he, fourth defendant, had
had to assist him in taking Mr
Jonker’s fingerprints. This is surprising indeed given that it
would be unusual for a police
officer to see his superior reduced to
an emotional wreck by a civilian, and it is unlikely that the fourth
defendant would have
simply forgotten to mention it in his testimony
had it truly been the case. Captain Dikgang also said that he was
satisfied when
he went into the detectives’ office that the
second defendant had everything under control. Had the second
defendant truly
had the kind of emotional reaction that he now claims
to have had, it is highly unlikely that his superior, Captain Dikgang
would
not have noticed it.
27.4.There
is no other reasonable conclusion to draw in this regard than that
second defendant’s reference to his emotional
state was a
convenient explanation concocted by him to try to cover for his
material error in failing to execute a duly commissioned
affidavit
for purposes of instituting charges against then plaintiff.
27.5.The
second defendant’s evidence was such as to leave me in no doubt
that he acted only on the following day, i.e. 23
October 2008, to set
things in motion against the plaintiff, and that he did so as an
afterthought. His later, and clearly untruthful,
evidence was an
attempt to conceal this fact.
27.6.Had
the plaintiff in truth conducted himself as the defendants and the
other defence witnesses described in their statements
and in their
testimony, the reasonable response would have been for them to use
their powers under section 41 (/) of the Criminal
Procedure Act to
arrest the plaintiff on the spot for hindering them in their duties.
At the very least, they would have appealed
to Captain Dikgang, as
their head, to intervene and to take plaintiff in hand. When all the
facts of the case are taken into account,
I cannot accept that they
did not do so simply because, as they suggested, they wanted to act
cautiously.
28.The
full conspectus of the testimony of the witnesses for the defence,
particularly when the material differences in this testimony
is taken
into account, demonstrates that while these witnesses were all
adamant in their assertion that the plaintiff had entered
the office
and conducted himself in the manner described in their various
statements, they were unable to sustain this version
once the details
were placed under the microscope of cross examination.
29.The
discrepancies were so material and so pervasive that they rendered
the defendants’ version completely implausible and
improbable.
What makes it worse is that the defence witnesses were the authors of
their own demise in this regard as it is their
performance in the
witness box that ultimately leads me to reject their evidence on the
contested issues as false.
30.I
find that the plaintiffs version is the more probable. The plaintiff
testified that he raised the issue of the conduct of the
detectives
with both the Station Commander and with Captain Dikgang when
plaintiff and his fellow committee members arrived at
the police
station on 22 October 2008. The arrest of Mr Jonker took place
against the background of a series of complaints that
the plaintiff
had made to the police hierarchy concerning public complaints about
the conduct of the detectives. These complaints
were of a serious
nature, involving alleged corruption on the part of the police
officers. A Task Team was even instituted to investigate.
This must
have been known to the officers involved, who included, inter alia,
the second and fourth defendants, and even Captain
Dikgang, as they
had all been implicated in the complaints. Despite their attempts to
evade admitting that they had knowledge about
these complaints, most
of the defences’ witnesses were forced to concede that they
did.
31.No
doubt, the officers felt aggrieved at having been accused of such
serious misconduct, particularly by the Chair of the CPF
with whom
they had all previously enjoyed a good relationship. When plaintiff
arrived and raised the issue of police misconduct
with the Station
Commander and with Captain Dikgang while the second defendant was
busy interviewing Mr Jonker, this must have
been the straw that broke
the camel’s back.
32.Against
this background, I accept as more probable, the plaintiff’s
version that he did not conduct himself in the manner
described by
the defendants and their witnesses in their statements and in court.
Had he done so, this would have been a pressing
and serious problem
and the reasonable and logical process for all police officers
involved would have been to take immediate action
against the
plaintiff in order to nip the problem in the bud, and to allow them
to continue with Mr Jonker’s arrest without
hinderance.
However, they did not do so.
33.Instead,
it was only long after the alleged threat was already over, on the
following day that the second defendant took steps
to make a
statement and register a criminal complaint against the plaintiff. By
this time, Mr Jonker had already been arrested,
charged and had the
charges withdrawn against him. Tellingly, the second defendant did
this without attesting to an affidavit before
a commissioner of oaths
and without a plausible explanation for his failure to do so. He also
initially falsely stated in his testimony
that he had made the
statement the same day. This was a patent falsehood designed to draw
attention away from the fact that the
criminal charges against the
plaintiff were an unwarranted afterthought.
34.Also
tellingly, third and fourth defendants, and DC Menwe all made
supporting statements only on 24 October. Their statements
were all
written by their colleague, Detective Thsabalala, and commissioned by
him.
35.I
conclude from all of this, and bearing in mind the problems with the
defence witnesses’ evidence I have already dealt
with above,
that the charges against the plaintiff were initiated as a carefully
planned and executed attempt by the defendants
to exact revenge
against the plaintiff for initiating his complaints campaign against
them and their colleagues. The evidence indicates
that it was the
second defendant who took charge of this process, and that the third
and fourth defendants assisted him by providing
supporting statements
in an attempt to substantiate what were essentially false charges and
to obtain a warrant for the plaintiff’s
arrest.
36.In
the circumstances, I accept as more probable the plaintiff’s
case to the effect that the statements made by the second
to fourth
defendants were false and that these defendants made them knowing
that they were false.
37.These
false statements led to the warrant of arrest being issued against
the plaintiff, his subsequent arrest and detention at
the
Hartbeespoort police station for approximately two hours, and to his
prosecution and appearance in court on a number of occasions
before
the charges ultimately were withdrawn.
38.Accordingly
I find that the plaintiff has proved all of the elements of the
delict of malicious prosecution in that the defendants
instituted the
prosecution against the plaintiff; they did so without reasonable and
probable cause and with the requisite animus
iniuriandi. It is common
cause that the prosecution failed.
39.In
the circumstances, the plaintiff succeeds on the merits of his
action.
40.As
regards the issue of quantum, I take into account the following
relevant facts:
40.1.The
presence of an improper and malicious motive on the part of the
defendants in making the false statements against the plaintiff
with
the purpose of seeking revenge against him for his actions as the
Chair of the CPF.
40.2.The
fact that it was police officers themselves who initiated the false
charges against the plaintiff.
40.3.The
disturbing fact that as police officers, the defendants have a
constitutional and civic duty to act as the defenders, and
not the
perpetrators, of the basic rights of civilians and protectors of what
is right and true. In this case, the defendants deliberately
flouted
their obligations in their own interests, and contrary to the public
interest.
40.4.The
fact that the defendants went further and used their false statements
as a basis to obtain a warrant of arrest against
the plaintiff. This
led to his arrest and detention at the police station in
circumstances where his arrest was patently unnecessary
to ensure his
attendance at court.
40.5.The
fact that there was extensive media coverage in the community of the
plaintiff’s arrest and prosecution, including
the dissemination
of a photograph of him behind bars on an internet news site.
40.6.The
fact that the Hartbeespoort community is a relatively small one and
that the plaintiff was well known to the community
as the Chair of
the CPF, and thus as someone who should be dedicated to upholding law
and order and assisting the police.
40.7.In
the circumstances, the false charges not only undermined the
plaintiff’s general standing as a well-known member of
the
community, but fundamentally damaged his standing as the community's
representative in the policing sector. The effect of the
charges was
to accuse the plaintiff of committing a serious breach of what this
position required of him.
40.8.The
length of time that the charges hung over the plaintiff’s head
is also a relevant factor. They were only withdrawn
6 months after
they were initiated and in this time the plaintiff was required to
attend court on a number of occasions.
40.9.It
is also relevant that the defendants took no steps to set matters to
rights with the plaintiff. The charges were only withdrawn
after
representations by the plaintiff to the DPP. In addition, the
defendants insisted on contesting the plaintiff’s claim
all the
way through the court, with the result that he has only finally been
able to clear his name five years after the event
41.The
plaintiff seeks damages in the amount of R150 000. 00. The defendants
suggest that a figure of R 20 000. 00 is more appropriate.
42.I
cannot accept the defendants’ suggestion. In my view the facts
of this case warrant a substantial award and I find the
amended
amount claimed by the plaintiff to be an appropriate measure of
damages in this case.
43.Before
making the order, I wish to record certain instructions to the State
Attorney representing the defendants. The State Attorney
is required
to provide a copy of this judgment to the appropriate authorities
within the Department of Safety and Security and
to request that it
be drawn to the attention of the second to fourth defendants’
superiors. It particular, it should be drawn
to their attention that
these officers were found by this court to have been singularly
unimpressive and lacking in credibility,
and to have maliciously
caused the prosecution of the Chairperson of the Hartbeespoort CPF on
false charges. I trust that this
will have the desired effect and
that appropriate action will be taken against these defendants. I
would particularly recommend
that the first defendant takes active
steps to ensure that second to fourth defendants are held personally
responsible for their
financial obligations as joint and several
debtors under the order. I see no reason why the taxpayer ultimately
should be held
liable to fund this kind of conduct by police
officers.
ORDER
44.I
make the following order:
44.1.The
defendants are directed, jointly and severally, to pay to plaintiff:
44.1.1.The
amount of R29 884.80;
44.1.2.The
amount of R150 000.00;
44.1.3.Interest
on these amounts at the rate of 15.5% a tempora mora;
44.1.4.Costs
of suit, including all costs incurred as a result of the various
postponements and removals from the Roll that occurred
during the
course of the action.
R.M.
KEIGHTLEY AJ
Acting
Judge of North Gauteng High Court
HEARD
ON: 20 NOVEMBER 2013 FOR THE
PLAINTIFF:
ADV. STRAUSS
INSTRUCTED
BY: OLIVIER CRONJE & STIGLINGH
FOR
THE DEFENDANT: ADV. KGATLA
INSTRUCTED
BY: THE STATE ATTORNEY