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[2006] ZASCA 162
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Relyant Trading (Pty) Ltd. v Shongwe and Another (472/05) [2006] ZASCA 162; [2007] 1 All SA 375 (SCA) (26 September 2006)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case
no: 472/05
In
the matter between:
RELYANT
TRADING (PTY) LIMITED APPELLANT
and
S
P SHONGWE FIRST RESPONDENT
MINISTER
OF SAFETY & SECURITY SECOND RESPONDENT
_______________________________________________________________
Coram:
CAMERON, NUGENT, MLAMBO JJA
et
COMBRINCK, MALAN AJJA
Date
of hearing: 7 September 2006
Date
of delivery: 26 September 2006
Summary: Liability
for wrongful arrest and malicious prosecution – grounds for –
reasonable and probable cause
Neutral Citation: This
judgment may be referred to as Relyant Trading (Pty) Ltd v Shongwe
[2006] SCA 111 RSA
JUDGMENT
________________________________________________________________
MALAN AJA/…
MALAN
AJA:
[1] This is an appeal
with the leave of this court against a judgment and order of Legodi J
upholding the claims of the plaintiff,
Mr Shongwe, against the
appellant trading as ‘Geen and Richards’, arising out of
his arrest, detention and prosecution
and awarding damages to him.
The claims against the second respondent (the ‘Minister’)
were dismissed. Mr Shongwe does
not appeal that outcome and abides
the decision of this court regarding Geen and Richards’ appeal.
This appeal therefore concerns
the liability of Geen and Richards
only.
[2] The claims have not
been elegantly pleaded but it is nonetheless clear, and that was the
basis upon which the matter was argued
in this court, that two
separate claims were pleaded. The third claim was dependent on the
success of either of the first two claims,
but it need not be
considered for reasons that will become apparent. The main claims
were for damages for wrongful arrest, and for
malicious prosecution.
These are two quite separate causes of action, each having its own
discrete elements, but the pleadings tend
to attribute some of the
elements of one cause of action to the other, and in any event do not
accurately reflect the elements of
the respective causes of action.
It is no doubt because the claims were inaccurately pleaded that the
court a quo fell into the same
error of incorrectly attributing
elements of one cause of action to the other.
[3] The
claims arise from events that occurred after a person who called
himself Mr Makgabo purchased a computer from Geen and Richards.
On 30
May 2002 Makgabo negotiated with Ms Mahlangu, a salesperson employed
by Geen and Richards, to purchase the computer, provided
her with his
identity document, an illegible copy of which was made, details of
his employment, residential address and next of kin,
and paid a
deposit. Ms de Beer, a credit manager of Geen and Richards, confirmed
these particulars and approved the hire purchase
agreement which was
concluded on the next day. The computer was duly delivered and signed
for at the address provided. Makgabo, however,
failed to make payment
of any of the instalments and had left the residential address
provided by him. The employment particulars
proved to be false and
Geen and Richards reported the matter to the police. On 24 August
2002 a fraud docket was opened and a warrant
for the arrest of
Makgabo was obtained. On 26 August 2002 Mahlangu observed Mr Shongwe
passing the Geen and Richards store; convinced
that he was the
purchaser, Makgabo, she approached Ms de Beer and pointed out Mr
Shongwe to her. They followed him and enquired about
his identity.
They had a discussion, the particulars of which are in dispute, and
Mr Shongwe informed them that he would return to
their store with his
identity document to prove that he was not Makgabo. He returned later
that morning only to be arrested by Inspector
du Plessis and taken to
the police station where he was handed over to Inspector Sishange,
the investigating officer, who interviewed
him and caused him to be
detained. Mr Shongwe appeared in court on 28 August 2002 but was
released on bail on 4 September 2002. Charges
against him were
withdrawn on 2 December 2002 without reference to either Ms Mahlangu
or de Beer.
[4]
Wrongful
arrest
consists in the wrongful deprivation of a person’s liberty.
Liability for wrongful arrest is strict, neither fault nor awareness
of the wrongfulness of the arrestor’s conduct being required.
1
An arrest is
malicious
where
the defendant makes improper use of the legal process to deprive the
plaintiff of his liberty.
2
In both wrongful and malicious arrest not only a person’s
liberty but also other aspects of his or her personality may be
involved,
particularly dignity.
3
In
Newman
v Prinsloo and another
4
the
distinction between wrongful arrest and malicious arrest was
explained as follows:
‘
[I]n wrongful
arrest . . . the act of restraining the plaintiff’s freedom is
that of the defendant or his agent for whose action
he is vicariously
liable, whereas in malicious arrest the interposition of a judicial
act between the act of the defendant and apprehension
of the
plaintiff, makes the restraint on the plaintiff’s freedom no
longer the act of the defendant but the act of the law.’
[5]
Malicious
prosecution
consists in the wrongful and intentional assault on the dignity of a
person comprehending also his or her good name and privacy.
5
The requirements are that the arrest or prosecution be instigated
without ireasonable and probable cause and with ‘malice’
or
animo
iniuriarum
.
6
Although the expression ‘malice’ is used, it means, in
the context of the
actio
iniuriarum
,
animus iniuriandi
.
7
In
Moaki v
Reckitt & Colman (Africa) Ltd and another
8
Wessels
JA said:
‘
Where
relief is claimed by this
actio
the plaintiff must allege and prove that the defendant intended to
injure (either
dolus directus
or
indirectus
). Save to
the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into account
in fixing the
quantum
of damages,
the motive of the defendant is not of any legal relevance.’
There
is a suggestion in the judgment of the court below that the effect of
the decision in
National Media Ltd and others v
Bogoshi
9
has been to introduce negligence on
the part of the defendant as a sufficient basis for a claim for
malicious prosecution but that
mistakes the effect of
Bogoshi
and in my view is not correct.
[6] To
succeed in an action based on wrongful arrest the plaintiff must show
that the defendant himself, or someone acting as his
agent or
employee deprived him of his liberty.
10
Generally, where the defendant merely furnishes a police officer with
information on the strength of which the latter decides to
arrest the
plaintiff the defendant does not effect the arrest.
11
[7] The
evidence shows that Geen and Richards reported the alleged offence,
summoned the police and pointed out Mr Shongwe as the
purchaser. Du
Plessis’ evidence stands undisputed. He stated that he provided
assistance to the detective branch on 24 August
2002 and received a
telephone call from Geen and Richards concerning theft. He met Ms de
Beer, took a statement from her, opened
a docket and received the
hire purchase agreement as well as a copy of the identity document of
Makgabo. Two days later he received
a further call from Geen and
Richards that the person who had committed the offence was present in
the store. He went to the store
but did not find him and, on receipt
of another call, returned and spoke to Ms Mahlangu who pointed out Mr
Shongwe to him as the
person who had committed the alleged offence.
Inspector Du Plessis thereupon warned and arrested him.
[8] The
judge in the court a quo upheld the claim for wrongful arrest on the
basis that the employees of Geen and Richards ‘instigated’
the arrest and prosecution. However, a claim for wrongful arrest can
succeed only if it can be said that the defendant, or his or
her
agent, effected the arrest. On the evidence the claim for wrongful
arrest against Geen and Richards must fail because the arrest
was
effected by the police, and not by Geen and Richards or their
employees.
[9] In holding Geen and
Richards liable in respect of the claim for malicious prosecution the
judge a quo accepted that the laying
of a definite charge may be
sufficient to create liability and added that by pointing out Mr
Shongwe to the police Geen and Richards
had instigated the arrest,
detention and prosecution. The concept of ‘instigation’
is one of some complexity,
12
but the statement Ms de Beer made to the police on 24 August 2002 in
which Mr Shongwe was not implicated is a fair statement of the
facts
and amounts to no more than an honest recordal of the facts submitted
by a complainant in a criminal matter. Whether Ms Mahlangu’s
pointing out of Mr Shongwe as the culprit, amounted to an
‘instigation’ is a different matter and need not be
resolved.
Liability for malicious prosecution depends not only on an
‘instigation’ but also on the absence of reasonable and
probable
cause and the presence of the
animus
iniuriandi
.
This involves an inquiry into the state of mind of the employees of
Geen and Richards, in particular, of Ms Mahlangu, and the grounds
for
that state of mind.
[10] The judge a quo
questioned the reliability of Ms Mahlangu as a witness whom he
thought was very talkative and not directly answering
questions. Ms
Mahlangu’s evidence concerning her statement to the police was
criticised and, finally, the court a quo remarked
that she ‘could
reasonably not have satisfied herself of the identity of the
plaintiff without having had a look at the plaintiff’s
identity
document which she demanded earlier that morning before she
identified the plaintiff to the police as the culprit.’
[11] I do not share the
judge a quo’s assessment of Ms Mahlangu’s evidence. She
interviewed Mr Shongwe on 30 and 31 May
2002. On the first day she
had a conversation of some thirty minutes with him; took his
particulars and demonstrated the computer
to him. He sat in front of
her, they conversed, she questioned him and jotted down his answers.
She could observe what he looked
like and what kind of person he was.
On the second day when he came to pay the deposit he spent between
fourteen and twenty minutes
with her. She, being a salesperson, was
trained to know her customers and preferred to address them by name
when they entered the
store. She did so when he turned up at the
store on the second occasion. She also sold clothes and could
familiarise herself with
the physical appearance of a customer and
could visualise how he or she looked. Ms Mahlangu clearly had
sufficient opportunity to
familiarise herself with the face and
physical aspects of the purchaser who resembled Mr Shongwe. She knew
that the matter had been
reported to the police on 24 August 2002. On
the day of his arrest she saw Mr Shongwe walking past the store and
identified him as
the purchaser. She called Ms de Beer and they
rushed after him. He denied that he was Makgabo. Mr Shongwe, when
confronted by Ms
de Beer and Mahlangu, denied that he was Makgabo but
his protestations were discarded: he furnished them with his cheque
book and
at least one account card. Although his name did not appear
on his cheque book it appeared on the card. This did not impress Ms
Mahlangu
as she knew that people often carried cards belonging to
others. Thereafter he told them that he was going to the Department
of Labour
where he was employed. He returned to the store only to be
pointed out by Ms Mahlangu and arrested.
[12] In criticising Ms
Mahlangu’s evidence the court a quo found that she was
uncertain about the identity of Mr Shongwe when
first confronting
him. This finding is based on Ms de Beer’s evidence that
Mahlangu had said to her that she ‘thought’
that Mr
Shongwe was the purchaser. Although this is correct I do not find any
uncertainty in the testimony of Ms Mahlangu about her
identification
of Mr Shongwe. In fact she persisted with her allegations that Mr
Shongwe committed the offence even at the trial.
Nor did Ms de Beer
give the impression that Ms Mahlangu was uncertain about her
identification: had she been, De Beer said, they
would not have
followed Mr Shongwe. The judge a quo also referred to Ms Mahlangu’s
asking Mr Shongwe whether he was Isaac Makgabo,
and concluded that
some uncertainty was thereby suggested. However, the fact that she
called him Isaac or Isaac Makgabo suggests
rather that she indeed
recognised him as the purchaser. In any event, it seems a sensible
way to address him. Nothing turns on the
way Mr Shongwe was addressed
ie whether as Isaac (as testified by Ms Mahlangu and Mr Shongwe) or
as Isaac Makgabo (as stated by Ms
de Beer). The court a quo also
placed some emphasis on the fact that Geen and Richards’
employees allowed Mr Shongwe to leave
on the understanding that he
would return to the store with his identity document. This, the court
said, indicated that they did
not or could not have believed that he
was the purchaser. I am not convinced that the employees had any
other option: they were alone
confronting Mr Shongwe and could not
detain him. Whether Mr Shongwe had given his cell number to Geen and
Richards’ employees
as he testified is in dispute. The
employees stated he undertook to return to the store with his
identity document but that he never
gave them his telephone number.
He, on the other hand, testified that he was telephoned by Ms
Mahlangu to whom he had given his telephone
number and told to come
to the store. In this respect, I find the evidence of Geen and
Richards’ employees more likely: they
had a brief encounter
with Mr Shongwe and did not have the means to write down any number
that might have been given to them. It
seems more probable that Mr
Shongwe returned to the store of his own accord to protest his
innocence. There is certainly no basis
for describing the evidence of
Geen and Richards’ employees in this regard as ‘speculative’
as the court a quo
did.
[13] Too much should not
be made of Geen and Richards’ denial in their plea that its
employees had identified Mr Shongwe as
the purchaser and had informed
the police that they could not do so. The allegations in the plea, it
seems, relate primarily to the
charge laid by Ms de Beer on 24 August
2002. The latter’s evidence is that she was unable to identify
Mr Shongwe as the person
who had defrauded her employer. Despite the
court a quo’s criticism of her evidence and its description of
it as a ‘fishing
expedition’ I can find no reason to
fault her testimony. Moreover, Ms Mahlangu was hardly cross-examined
as to the statements
contained in Geen and Richards’ plea and
no adverse inference against her can be drawn in this respect.
Nothing turns on the
fact that she may have been talkative when
giving evidence. Furthermore, she could in the circumstances not
have verified Mr Shongwe’s
identity document because he never
produced it: production of this document would in any event have
yielded nothing because Makgabo
in all likelihood used a false one to
defraud Geen and Richards. Nor can the conclusion that she honestly
believed that Mr Shongwe
was the person who had defrauded her
employer be questioned by some or other difference between her
evidence and that of Inspector
du Plessis.
[14] 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
Beckenstrater
v Rottcher and Theunissen
13
as
follows:
‘
When it is alleged
that a defendant had no reasonable cause for 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
plaintiff’s 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 plaintiff’s
guilt.
14
Where reasonable and probable cause for an arrest or prosecution
exists the conduct of the defendant instigating it is not wrongful.
15
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.’
16
[15] The court a quo
found that it had not been shown that reasonable and probable cause
was present. I do not consider that this
conclusion is correct. I
have already dealt with Mr Shongwe’s returning to the store
after his confrontation with Mss de Beer
and Mahlangu, the main
consideration on which the judge a quo based his finding. Where the
evidence of Ms Mahlangu is concerned the
inference that she honestly
believed in Mr Shongwe’s guilt and lacked any intention to
injure him is unavoidable. Her belief
that he was the person involved
in defrauding Geen and Richards is based on two interviews she had
with him where she had ample opportunity
to observe and evaluate him.
She was well trained to form an opinion of her customers and, when
she observed him passing the store,
acted promptly in accordance with
her belief. Any reasonable person in her position and on the
information available to her
17
would have concluded that Mr Shongwe was probably the person who
committed the offence concerned. Accordingly, I find that Mr Shongwe
did not show that Geen and Richards acted without reasonable and
probable cause.
[16] In its notice of
appeal Geen and Richards stated that in respect of the claims for
wrongful arrest and malicious prosecution
the court a quo should have
found (‘at worst for Geen and Richards’) that Geen and
Richards and the Minister were jointly
and severally liable. The same
contention is advanced in Geen and Richards’ heads of argument.
However, neither at the trial
nor in this court was it argued that
the Minister should have been held liable together with Geen and
Richards (there is no appeal
by the first respondent). Geen and
Richards’ plea contains no statement to that effect. The
Minister was represented during
the hearing of the appeal and it was
submitted in argument on his behalf that Geen and Richards should be
ordered to pay his costs
on appeal. The Minister’s heads of
argument, however, contain no such request and in my view, although
Geen and Richards’
attempt to procure the imposition of joint
and several liability on the Minister on appeal was misbegotten, the
Minister’s
decision to appear on appeal cannot in fairness be
ascribed to Geen and Richards. In the circumstances there is no
justification
for ordering Geen and Richards to pay the Minister’s
costs of appeal.
[17] The following order
is made:
The appeal is upheld
with costs;
Paragraphs 1, 2, 3 and 4
of the order of the court a quo are set aside and replaced with the
following:
‘
The plaintiff’s
claims against the second defendant are dismissed with costs.’
FR Malan
Acting Judge of Appeal
CONCUR:
CAMERON
JA
NUGENT
JA
MLAMBO
JA
COMBRINCK
AJA
1
Smit v Meyerton Outfitters
1971 (1) SA 137
(T) 139D;
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) 154E-157C;
Tödt
v Ipser
1993 (3) SA 577
(A) 586F-587C;
Donono v Minister of
Prisons
1973 (4) SA 259
(C) 262B.
2
Thompson and another v Minister of Police and another
1971
(1) SA 371
(E) 373E-G.
3
Jonathan Burchell
Personality rights and freedom of expression.
The modern actio iniuriarum
(1998) 353ff.
4
1973 (1) SA 125
(W) at 127H.
5
Heyns v Venter
2004 (3) SA 200
(T) 208B.
6
Thompson & another v Minister of Police & another
1971
(1) SA 371
(E) 373F-H;
Lederman v Moharal Investments (Pty) Ltd
1969 (1) SA 190
(A) 196G-H.
7
Heyns v Venter
above 208EF;
Moaki v Reckitt & Colman
(Africa) Ltd and another
1968 (3) SA 98
(A) 104A-B; and see the
discussion in J Neethling JM Potgieter and PJ Visser
Neethling’s
law of personality
2 ed (2005) 124-5.
8
1968 (3) SA 98
(A) 104B-C.
9
1998 (4) SA 1196
(SCA). The court also relied on
Marais v Groenewald en ‘n ander
2001 (1) SA 634
(T).
10
Smit v Meyerton Outfitters
1971 (1) SA 137
(T) 140D-E;
Cohen
v Benjamin
(1885) 4 SC 99
102-3.
Rini v Carr
1921 EDL 239
appears to have been a case of wrongful arrest: although the police
actually made the arrest, the defendant was responsible for
it.
Graham JP said at 241: ‘The defendant was acting in his
capacity as assistant superintendent of the location, and was
making
this raid with the object of arresting persons who in his opinion
were not authorised to be in particular huts, and with
the object of
collecting hut tax and revenue.’ See the discussion by
Chittharanjan Felix Amerasinghe
Defamation and other aspects of
the actio iniuriarum in Roman-Dutch law (In Ceylon & South
Africa)
(1968) 239-243 (referred to as Amerasinghe
Defamation
).
11
Birch Johannesburg City Council
1949 (1) SA 231
(T) 238-9;
Cohen v Benjamin
(1885) 4 SC 99
;
Rini v Carr
1921 EDL
239
241;
Rademeyer v Van der Merwe
(1895) 12 SC 450 453.
12
Lederman v Moharal Investments (Pty) Ltd
above 197A-F;
Prinsloo and another v Newman
1975 (1) SA 481
(A) 492C-G;
Heyns v Venter
above 206F-207A and see the discussion in
Neethling’s law of personality
173-6; Amerasinghe
Defamation
239ff.
13
1955 (1) SA 129
(A) 136A-B.
14
Prinsloo and another v Newman
1975
(1) SA 481
(A) 498H-499C;
Fyne v African Realty Trust Ltd
(1906) 20 EDC 248
256;
Ramakulukusha v Commander, Venda National
Force
1989 (2) SA 813
(V) 844J–845B;
Madnitsky v
Rosenberg
1949 (1) PH J5 (W) 14.
15
Neethling’s law of personality
178.
16
Beckenstater v Rottcher and Theunissen
above 135D-E.
17
Cf
Madnitsky v Rosenberg
1949
1 PH J5 (W) 14-15.