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[2013] ZAKZDHC 55
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Sithole v Minister of Safety and Security and Others (7882/2003) [2013] ZAKZDHC 55 (11 October 2013)

In the KwaZulu-Natal High
Court, Durban
Republic of South Africa
Case No : 7882/2003
In the matter between :
Siphiwe Rodgers Sithole
.......................................................................................
Plaintiff
and
The Minister of Safety
and Security
..........................................................
First
Defendant
Alex Mahlasela Chiliza
........................................................................
Second
Defendant
M D Mngadi
.
............................................................................................
Third
Defendant
Mr Thabethe
.
.........................................................................................
Fourth
Defendant
Mr Cele
.....................................................................................................
Fifth
Defendant
The Minister of Justice
and Constitutional Development
.........................
Sixth
Defendant
___________________________________________________________________
Judgment
___________________________________________________________________
Lopes J
[1] The plaintiff in this
action, Siphiwe Rodgers Sithole, was a police officer employed by the
South African Police Services. He
has sued the defendants in various
combinations and for various amounts on the basis of the following
claims :
(a) his wrongful arrest
on the 8
th
January 2002 by the second, third, fourth and
fifth defendants;
(b) an assault upon him
committed by the third defendant Warrant Officer Mngadi, also
committed on the 8
th
January 2002;
(c) the malicious
prosecution of the plaintiff on a charge of housebreaking and/or
theft on or about the 20
th
May 2004 instigated and/or
conducted by employees of the sixth defendant, the Minister of
Justice and Constitutional Development,
without any reasonable or
probable cause;
(d) a claim for damages
arising from the fact that the plaintiff suffered from post-traumatic
stress disorder as a result of the
circumstances arising in the
claims for wrongful arrest, assault and malicious prosecution.
[2] I granted an order in
terms of Rule 33(4) separating the issues of liability and quantum.
This judgment accordingly deals only
with the question of the
liability of the defendants on the claims for wrongful arrest,
assault and malicious prosecution.
[3] It is useful to set
out the history of the matter which emerges from the evidence of the
plaintiff’s first witness.
(a) Siyabonga Moloi (also
known as Siyabonga Zulu, but to whom I shall refer as ‘Mr
Moloi’) was unemployed and visiting
the Workshop Shopping
Centre in December of 2001. He approached two police officers one who
was in uniform and the other one who
was not. He asked them if they
could assist him in finding work. One of them introduced himself as
‘Sithole’ and said
that he could assist. He told Mr Moloi
to meet him the next day at the second gate at C R Swart Square
Police Station in Durban;
(b) Mr Moloi duly arrived
at C R Swart Square the next day and met ‘Sithole’ who
asked him to assist in loading some
goods into a vehicle. Next door
to C R Swart Square Police Station is a block of flats which is used
as housing for police officials
(‘the police barracks’).
‘Sithole’ took Mr Moloi to flat number 203 in the police
barracks and opened the
door to that flat with keys. At that time
there were a lot of other police officers walking up and down. Goods
were pointed out
to Mr Moloi which he then loaded into a motor
vehicle indicated by ‘Sithole’;
(c) when he had done so,
he told ‘Sithole’ that he was leaving to go to QwaQwa and
‘Sithole’ offered to
take him to the taxi rank. He was
paid R200 for the services which he had performed. At the behest of
‘Sithole’, Mr
Moloi took with him to QwaQwa, a bag which
‘Sithole’ said he would uplift from Moloi in QwaQwa in a
few days time.
To this end they exchanged telephone numbers. Moloi
returned to QwaQwa with the bag;
(d) on the day after New
Year’s Day Mr Moloi was telephoned by ‘Sithole’ who
said that he was on his way. However
‘Sithole’ did not
arrive. At about 7 o’clock in the evening a number of police
officers arrived where Mr Moloi
was staying in QwaQwa. They included
the second defendant, Warrant Officer Chiliza;
(e) the police officers
accused Mr Moloi of having stolen goods from flat number 203 and
arrested him. In doing so they also assaulted
him. He showed them the
bag he had been given by ‘Sithole’ which apparently
contained items such as court stamps, police
stamps and extracts from
police documents;
(f) Mr Moloi was asked by
Chiliza to namethe person who had given him the bag, and he said that
he had introduced himself as ‘Sithole’;
(g) Mr Moloi was then
taken to the QwaQwa Police Station and thereafter to C R Swart Square
Police Station. At C R Swart Square
Police Station he was asked to
make a statement which he did. He signed a sworn statement before
Warrant Officer Mngadi, the third
defendant who had been appointed as
the investigating officer in the theft case;
(h) Mr Moloi appeared in
court on two occasions, the first time on his own, and on the second
occasion he was joined in the dock
by the plaintiff. Mr Moloi
maintained that the plaintiff was not the policeman who had
introduced himself to him at the Workshop
as ‘Sithole’
and told that to the police officers who administered the court, and
he tried to tell that to the prosecutor,
who would not speak to him.
Eventually the charges against Mr Moloi were withdrawn and he was
released from prison;
(i) in 2004 the charges
were reinstated and Mr Moloi again appeared with the plaintiff. This
time he was persuaded to testify as
a witness against the plaintiff
in terms of
s 204
of the
Criminal Procedure Act, 1977
. However, when
he came to testify he experienced an anxiety attack and was unable to
utter more than a sentence or two in evidence.
The trial was then
abandoned;
(j) Mr Moloi was later
called as a witness in a disciplinary enquiry held at C R Swart
Square Police Station against the plaintiff.
Prior to the
re-institution of the charges, Mr Moloi was visited in prison by a
Captain Sookdhoo who was conducting disciplinary
proceedings against
the plaintiff in relation to the theft. He told Captain Sookhdoo that
Warrant Officer Chiliza had told him
to mention the names Siphiwe
Rodgers Sithole in relation to the person who had instructed him to
offload the goods from the flat
next to C R Swart Square Police
Station. This was contained in an affidavit dated the 29
th
February 2003 (the date is obviously incorrect).Mr Moloi told the
disciplinary committee that the plaintiff was not the ‘Sithole’

he had met at the Workshop.
[4] It was common cause
between the parties that :
(a) flat 203 from which
the goods were taken at the police barracks was occupied by the
second defendant, Warrant Officer Chiliza
(b) a person named
Mokoenanyana Dankie Mokoena (‘Mr Mokoena’) saw some of
the items which had been contained in the
bag taken to QwaQwa by Mr
Moloi, and believing them to be stolen, had contacted a person who
was identified on a video cassette
in the bag, and asked for details
of the person depicted in the wedding ceremony contained on the video
cassette;
(c) it transpired that
the wedding depicted was that of Warrant Officer Chiliza and his
bride, and when he came to know of these
facts, Warrant Officer
Chiliza together with other police officers drove up to QwaQwa and
arrested Mr Moloi. At the time the police
authorities would not allow
the investigating officer, Warrant Officer Mngadi to go up to QwaQwa,
and Warrant Officer Chiliza did
so at his own expense.
[5] In this judgment I
shall refer to the various police officials by the ranks which they
held when they testified.
[6] The plaintiff’s
caseconsisted of four witnesses, Mr Moloi, Warrant Officer Haynes,
Captain Sookdhoo and the plaintiff
himself.
[7] Warrant Officer Henry
Eli Haynes testified that he had worked with both the plaintiff and
Warrant Officer Chiliza. He had been
working at the grille at the
Durban Magistrates’ Court on the 10
th
January 2002
when the plaintiff appeared at court. On that day he saw Warrant
Officer Chiliza calling the names of the prisoners
that were to be
returned to Westville Prison. This was at approximately lunchtime.
Warrant Officer Chiliza also called out the
name of the plaintiff .
Having given the evidence that Warrant Officer Chiliza called out the
name of the plaintiff, Warrant Officer
Haynes then said that he was
inside his office when the names were called, and that was done
outside his office, and he was unable
to comment on the way in which
the name of the plaintiff was called out.
[8] In his evidence he
clearly sought to distance himself from being able to testify as to
the manner in which Warrant Officer Chiliza
had called out the name
of the plaintiff. This had formed part of the plaintiff’s case
because it was suggested that the
name of the plaintiff had been
called out as ‘Siphiwe Rodgers Sithole, a policeman’ in a
very loud voice although the
plaintiff was standing directly in front
of Warrant Officer Chiliza. The clear suggestion was that this was
done in order that
other prisoners would become alerted to the fact
that the plaintiff was a policeman, with rather obvious consequences
if the plaintiff
was thereafter to be conveyed to Westville Prison in
the prison van together with other prisoners. Warrant Officer Haynes
was even
unable to remember whether the plaintiff was returned to
Westville Prison after the lunch adjournment or whether he went back
to
court.
[9] Captain Sookdhoo
testified that he knew the plaintiff and was the disciplinary officer
in an internal disciplinary investigation
against the plaintiff. He
testified that he commissioned a statement made byMr Moloi, and in
that statement Mr Moloi said that
he was asked by Warrant Officer
Chiliza to implicate the plaintiff.
[10] Captain Sookdhoo
said that he had gone to Westville Prison together with the plaintiff
in order to enable the plaintiff to
identify Mr Moloi. Thereafter, in
the absence of the plaintiff, Captain Sookdhoo had written down the
statement by Mr Moloi alleging
that he had been forced to implicate
the plaintiff by Warrant Officer Chiliza.
[11] The plaintiff
himself testified that he had returned to his room at the police
barracks (room 202) after visiting the doctor,
having had an X-ray on
his right leg which he had injured when involved in a motor vehicle
collision. Whilst in the room he heard
a knock and upon answering the
door, it was kicked open hitting him on the forehead and he fell on a
chair injuring his right thigh.
Warrant Officer Chiliza and
Inspectors Thabethe and Cele then entered, shouting at him. They
searched through his possessions looking
for items belonging to
Warrant Officer Chiliza. According to the plaintiff he was abused by
these police officers who swore at
him and demanded that he show them
certain items. They confiscated his service weapons, as well as a 9
mm pistol for which he held
a private licence. They also took
possession of his police handcuffs and his cellphone.
[12] It was suggested by
the plaintiff that at some stage Warrant Officer Chiliza picked up
his television set which he said he
was going to keep in compensation
for the other items which had been stolen from him by the plaintiff.
Inspector Cele prevented
Warrant Officer Chiliza from doing so. They
then arrested the plaintiff and took him outside where many people
were standing laughing
at the plaintiff. He was not allowed to take
his crutches, and was taken to C R Swart Square in a white Golf motor
vehicle. After
several hours at the police station he was then booked
out by Warrant Officer Mngadi, the investigating officer, who took
the plaintiff
to the Phoenix Police Station. On the way there, and at
or near the Gateway turnoff, Warrant Officer Mngadi, apparently
irritated
by the continual questions put to him by the plaintiff,
stopped the motor vehicle and assaulted the plaintiff by kicking his
left
thigh. The plaintiff was then taken to the Phoenix Police
Station where, despite objections from the Indian police officers
there,
he was kept overnight on the instructions of the Phoenix
Police Station commander, Director Mpethe.
[13] The next day the
plaintiff was taken to C R Swart Square where his fingerprints were
taken. That night he was taken to the
Durban North Police Station and
kept there. The next day he appeared in court, and he was told by the
magistrate that he was charged
with housebreaking. The prosecutor
sought to oppose bail because, apparently, another charge was to be
added to those which the
plaintiff was facing at that stage.
According to the plaintiff, this had been after Warrant Officer
Chiliza had whispered to Warrant
Officer Mngadi and Warrant Officer
Mngadi had spoken to the prosecutor.
[14] The plaintiff
maintains that when the prisoners were to be returned to Westville
Prison, his name was called out by Warrant
Officer Chiliza loudly,
even though he was standing just in front of Warrant Officer Chiliza.
He was placed in a police van with
other prisoners who robbed him of
his money. They had apparently claimed that they had been given a
knife by Warrant Officer Chiliza,
and that the intention was that
they would stab the plaintiff with the knife. The plaintiff was then
detained at Westville Prison
for approximately two weeks until his
release on bail on the 22
nd
January 2001.
[15] It was common cause
that the charges were eventually withdrawn by way of a letter from
the Director of Public Prosecutions
dated the 6
th
June
2002. The letter declining to prosecute the plaintiff recorded that
Mr Moloi was to be prosecuted on charges of housebreaking
with intent
to steal and theft and possession of an unlicenced firearm. On the
2
nd
September 2003 a summons and particulars of claim were
served in this action.
[16] The plaintiff also
testified to the fact that he had accompanied Captain Sookdhoo to
Westville Prison in order to point out
Mr Moloi, and that Captain
Sookdhoo had taken a statement from Mr Moloi at Westville Prison, and
a copy was handed to the plaintiff.
[17] Some time
thereafter, and during or about 2004 the plaintiff was summoned to C
R Swart Square Police Station by Captain Maphanga.
When he arrived at
C R Swart Square Police Station, Captain Maphanga took the plaintiff
over to the Durban Magistrates’ Court
where the plaintiff was
told he was being charged with housebreaking and bail was set at
R2 000.
[18] Thereafter Mr Moloi
was persuaded to testify against the plaintiff as a
s 204
witness,
but was unable to do so because when he started his evidence, he
experienced an anxiety attack and was unable to testify.
The charges
were consequently withdrawn against the plaintiff.
[19] It was put to the
plaintiff in cross-examination that his then attorney had
subsequently written a letter to the Minister of
Safety and Security,
the first defendant in the action, in February 2003. In that letter
it was alleged that the plaintiff was
assaulted by Sergeant Chiliza
on the 8
th
January 2002. The plaintiff’s explanation
for this was that when he was in his room in the police barracks and
the police
officers arrived, as a result of the door being kicked he
had fallen onto a chair. It was then pointed out that in the summons
it was only ever claimed that Warrant Officer Mngadi had assaulted
him. The plaintiff then said that that assault referred to the

assault near the Gateway turnoff on the way to the Phoenix Police
Station. In his evidence he then denied that Warrant Officer
Chiliza
had assaulted him. He described his attorney’s letter as a
mistake.
[20] The plaintiff also
testified that Warrant Officer Mngadi had made him sign a blank
interview statement. He said he had done
so after arguing with
Warrant Officer Mngadi about doing so.
[21] That was the case
for the plaintiff.
[22] Warrant Officer
Chiliza testified that on the 18
th
December 2001 he had
left his flat (room 203) in the South African Police barracks next to
C R Swart Square and had returned to
his home. Upon returning four
days later he found that a number of items had been stolen from his
room. Those items included a
television set, a video recorder with
video cassettes containing scenes of his wedding, a hifi set and
certain clothing. He had
later received information via an informer
as to the whereabouts of his possessions in QwaQwa. He had proceeded
to QwaQwa where
he had found Mr Moloi and recovered a number of his
items which had been stolen. He had been given various names by Mr
Moloi as
fitting the person who had told him to remove the items from
Warrant Officer Chiliza’s room. Those names included Siphiwe

Sithole.
[23] Warrant Officer
Chiliza also testified that the plaintiff was his neighbour in the
South African Police barracks. He said that
in December 2001 the
plaintiff was staying in the barracks although he did not wear a
uniform. Warrant Officer Chilizawas told
by Mr Moloi that he had met
one ‘Sithole’ at the Workshop and that he wasthe one who
was not wearing a uniform, had
been limping, and had promised to give
Mr Moloi a job.
[24] Warrant Officer
Chiliza described the functions he was required to perform as a court
orderly as follows :
fetching prisoners from
the grille and taking them to the particular court they were to
appear in;
after the court
proceedings taking the prisoners back down to the grille;
during the tea
adjournment and at lunchtime, he would take the prisoners down to
the grille so that they could have their meal
and the prisoners who
had completed their appearance in court would be taken by vehicle
back to Westville Prison;
he would assist in the
calling out of the names of the prisoners as they were required to
get into the vehicle to take them to
Westville Prison;
he was one of the
drivers who was authorised to drive State vehicles conveying
prisoners to Westville Prison.
[25] Warrant Officer
Chiliza denied that he had called out the name of the plaintiff in
the manner suggested by the plaintiff and
he also denied having given
the prisoners in the prison van a knife with which to stab the
plaintiff. He also denied having told
the prisoners that they could
do what they liked with the knife.
[26] Under
cross-examination Warrant Officer Chiliza admitted that he had had a
problem with the plaintiff, because he did not appreciate
the fact
that the plaintiff brought girlfriends to wait in Warrant Officer’s
Chiliza’s room. This was because it caused
friction between
Warrant Officer Chiliza and his wife. He had also been worried about
an incident when the plaintiff had opened
his door and stood there
naked. Warrant Officer Chiliza was worried at the time that his wife
would see the plaintiff naked. He
said that despite the fact that he
did not wish to be friends with the plaintiff, he was civil towards
the plaintiff. Warrant Officer
Chiliza went to QwaQwa because Warrant
Officer Mngadi who was the investigating officer at that stage, was
refused permission by
his superiors to go to QwaQwa. Warrant Officer
Chiliza had been praised by his superiors for his actions on his
return from QwaQwa.
Under cross-examination Warrant Officer Chiliza
reiterated that Mr Moloi had mentioned the name of the plaintiff and
said that
he lived in a room next door to Warrant Officer Chiliza’s
room.
[27] Warrant Officer
Chiliza suggested that Mr Moloi was changing his evidence when he
said in court that the person who had undertaken
to help him at the
Workshop was wearing a police uniform. Warrant Officer Chiliza
maintained that during that period the plaintiff
was working at the
Workshop but that he was not aware whether he was on duty or not on
the day in question.
[28] Warrant Officer
Mngadi, the third defendant, then testified. He was appointed
investigating officer in the matter of the theft
of the items from
the room of Warrant Officer Chiliza. The case had been allocated to
him by Captain V Moodley and he had no part
in that allocation.
[29] Warrant Officer
Mngadi testified that on a particular Friday, Warrant Officer Chiliza
had come to him and told him that he
had received information from
QwaQwa that some of his goods had been found there. This information
had come via Mr Mokoena. Warrant
Officer Mngadi’s commander had
then refused him permissions to go to QwaQwa because he was on call
duty over the weekend.
He then agreed with Warrant Officer Chiliza
that he, Warrant Officer Chiliza, would go to QwaQwa to fetch the
goods. When he returned
from QwaQwa, Warrant Officer Chiliza had
brought back a suspect, Mr Moloi, as well as his goods. Warrant
Officer Mngadi had then
taken a statement from Mr Moloi. Mr Moloi had
read the statement through and then signed it. They both signed each
page of Mr Moloi’s
statement. Warrant Officer Mngadi said that
he had asked Mr Moloi to sign alongside the places in the statement
where a word had
been scratched out or corrected. A perusal of the
statement shows that this was done in about half a dozen places.
[30] In that statement Mr
Moloi set out how he had come into possession of the items recording
that the person to whom he had spoken
at the Workshop had identified
himself as Siphiwe Rodgers. He said that when he had returned home
and opened the bag, he had found
various items including video
cassettes and two firearms, and he had locked the firearms away.
[31] Warrant Officer
Mngadi then spoke to the senior prosecutor and made a sworn statement
that Mr Moloi had implicated the plaintiff
who stayed in the room
next to Warrant Officer Chiliza. He requested that a warrant of
arrest be issued. That was subsequently
done on the 8
th
January 2002.
[32] Warrant Officer
Mngadi then proceeded to Room 202 at the police barracks accompanied
by Warrant Officer Cele, the fifth defendant,
and Warrant Officer
Thabethe, the fourth defendant. They knocked at the door which, after
some time, was opened by the plaintiff.
They explained to him why
they were there and they asked Warrant Officer Chiliza to see if any
of his goods were present in the
flat. He denied any suggestion that
the door had been kicked open thereby injuring the plaintiff. He also
denied that Warrant Officer
Chiliza had purported to claim a
television set belonging to the plaintiff as compensation for his
goods. He did however say that
the two had argued to the extent where
it was necessary for the other police officers to intervene between
them. Until the time
of the arrest Warrant Officer Mngadi had a good
relationship with the plaintiff. He knew nothing of the relationship
between the
plaintiff and Warrant Officer Chiliza.
[33] Warrant Officer
Mngadi said that at the stage when the plaintiff was arrested he was
walking normally. When he had returned
to C R Swart Square Police
Station, Warrant Officer Mngadi received instructions from his
commander that he should move the plaintiff
to another police station
i.e. not one where he had been working. His commanding officer had
been the late Colonel Mabaso. Warrant
Officer Mngadi then confirmed
an entry from the C R Swart Square occurrence book recording at
6.10pm that ‘suspect out to
place of safekeeping’ which
entry was signed by Warrant Officer Mngadi. The suspect is recorded
in the note as being ‘Siphiwe
R Sithole’.
[34] Warrant Officer
Mngadi said that he then took the plaintiff to the Durban North
Police Station but the cells were full. He
then took him from there
to the Phoenix Police Station. He took the plaintiff along with him
into the premises at each police station
because he did not want to
leave him alone because he had not been handcuffed. They were
travelling in a small sedan motor vehicle.
He denied having stopped
the vehicle along the road to any reason, and denied having assaulted
the plaintiff.
[35] Warrant Officer
Mngadi said that prior to the plaintiff being admitted to the police
cells at the Phoenix Police Station he
had been asked by the officers
there whether or not he was injured. An entry was made to the effect
that the plaintiff was free
from injury and a copy of the Phoenix
Police Station occurrence book was adduced in evidence which recorded
that the plaintiff
was ‘searched and lodged in cells free of
injuries’. Warrant Officer Mngadi and a police officer from the
Phoenix Police
Station signed that occurrence book entry.
[36] Warrant Officer
Mngadi testified that the plaintiff was then detained at the Phoenix
Police Station overnight and he fetched
him the next day so that he
could be charged and taken to court which occurred on the 10
th
January. On that day the matter was adjourned for a bail hearing.
[37] The next witness for
the defendants was Valerie Jean Mellis, who during June of 2003 and
early 2004, was employed by the National
Prosecuting Authority as a
senior public prosecutor in Durban. Ms Mellis compiled the warrant of
arrest application in respect
of the plaintiff on the 20
th
May 2004. Ms Mellis was referred to a letter addressed to the senior
public prosecutor by the Director of Public Prosecutions querying
the
re-prosecution of the plaintiff notwithstanding paragraph 9 of a
circular issued by the Director of Public Prosecutions. Ms
Mellis
responded to this letter pointing out that she had discussed the
contents of the docket with the public prosecutrix, Ms
K Shazi, and
had agreed with her representations to charge the plaintiff. She had
applied for a warrant of arrest because of the
difficulties which Ms
Shazi explained to her had been experienced by the investigating
officer in securing the plaintiff’s
attendance at court.
[38] Ms Mellis recorded
that she was thereafter approached by an attorney acting for the
plaintiff who wanted to know why the plaintiff
had been re-charged in
the light of an affidavit purported to have been made by Mr Moloi
exculpating the plaintiff. Ms Mellis again
consulted with Ms Shazi
and recorded in a letter dated the 6
th
December 2004 that
it was the intention of the State to challenge the admissibility of
the affidavit exonerating the plaintiff.
She concludes the letter by
reiterating her opinion that the decision to prosecute the plaintiff
was a correct one, both in substance
and procedure.
[39] In cross-examination
Ms Mellis reiterated that she had applied for the warrant of arrest
because it had been stated to her
that the police were unable to
contact the plaintiff. In circumstances where a charge is withdrawn
against an accused and it is
decided to prosecute him thereafter, the
accused would be contacted and told to appear. They would then be
informed of the charges
they would face, and be given an SAPS 496
document telling them when to appear in court again.
[40] Ms Mellis was unable
to recall whether the investigating officer, Warrant Officer Mngadi,
had made an affidavit prior to her
applying for the warrant of
arrest, or whether the practice requiring that to have taken place
only came into effect later. Ms
Mellis had no independent
recollection of the circumstances upon which the decision to
re-charge the plaintiff was based. It was
pointed out to Ms Mellis
that the consideration that Mr Moloi would be used as a
s 204
witness
as a justification for re-charging the plaintiff was not new and had
existed as early as the 10
th
February 2002. Ms Mellis
conceded that that matter appeared to have been previously
considered, but was uncertain whether or not
it had been pursued. She
stated that the decision at that stage would have gone to the
Director of Public Prosecutions because
the plaintiff was a
policeman.
[41] Although Ms Mellis
had no independent recollection of the circumstances upon which the
recommendation to arrest the plaintiff
was made, she did not believe
that the exculpatory statement shown to her and which was made by Mr
Moloi, would have been fatal
to the State case in circumstances where
the State had decided to challenge the admissibility of that
affidavit. She denied that
the decision to prosecute the plaintiff
had been a malicious one because there had been no new evidence
available to the prosecution.
Ms Mellis reiterated that her decision
was made on legal grounds.
[42] The next witness for
the defence was Mr Mark Erskine Dyson who was a Senior Public
Prosecutor in the employ of the State from
1996. He was referred to a
letter which he had written on the 21
st
September 2004
recording that he had the authority to, and did authorise the
prosecution of, the plaintiff in the above matter.
Mr Dyson no longer
works for the State and he practices as an independent legal
consultant.
[43] His recollection of
the facts underlying the letter of the 24
th
September 2004
were very vague, but he said that Ms Shazi had approached him asking
for advice on the prosecution of the plaintiff.
Ms Mellis had not
been available on that day but Mr Dyson said that he agreed with the
instructions given by Ms Mellis.
[44] This matter had
arisen because the plaintiff’s counsel had maintained that the
Senior Public Prosecutor’s office
had no authority to change
the decision of the Director of Public Prosecutions not to prosecute
the plaintiff.
[45] Mr Dyson maintained
that he did have authority in terms of the circulars from the
Director of Public Prosecutions to recharge
the plaintiff. He asked
Ms Shazi to give his letter to the counsel acting for the plaintiff.
In November of 2004 Mr Dyson had been
shown the letter from the
Director of Public Prosecutions querying the authorisation of the
prosecution of the plaintiff, and he
replied in detail to that letter
on the 2
nd
December 2004. In his reply, Mr Dyson refers to
the circular from the Director of Public Prosecutions authorising him
to make the
decision which he did to prosecute the plaintiff. On the
11
th
January 2005, and pursuant to the correspondence
referred to above, the Director of Public Prosecutions addressed a
letter to the
plaintiff’s attorneys indicating that both Mr
Dyson and Ms Mellis had acted properly in the matter.
[46] The last witness for
the defence was Khumbuzile Shazi a senior State advocate with the
office of the Director of Public Prosecutions
in Durban. At the time
this matter arose she was a public prosecutrix in the Regional Court.
She was responsible for writing a
letter dated the 5
th
November 2004 to the Director of Public Prosecutions in response to
the same letter of the Director of Public Prosecutions of the
5
th
November 2004 which had been dealt with by both Ms Mellis and Mr
Dyason as set out above.
[47] When Ms Shazi took
over the docket, it occurred to her that no-one had properly
considered the option of making Mr Moloi a
s 204
witness against the
plaintiff. On the instructions of the Director of Public Prosecutions
she approached Ms Mellis who agreed with
Ms Shazi’s approach
that the plaintiff should be re-charged. Ms Shazi then instructed the
investigating officer Warrant Officer
Mngadi to issue and serve the
plaintiff with a warning to appear in court (an SAP 496 document).
Weeks went by and Warrant Officer
Mngadi told her that the plaintiff
refused to accept the warning. It was pursuant to this that she spoke
to Ms Mellis and the warrant
of arrest was authorised. The matter
came before the magistrate Mr Hahn who considered the point
in
limine
raised by the defence counsel that there was no authority
to charge the plaintiff. He accepted the State’s explanation
and
the trial continued.
[48] Ms Shazi said that
she had first seen the exculpatory affidavit deposed to by Mr Moloi
suggesting that he had been coerced
into naming the plaintiff as a
participant in the housebreaking, when it was given to her by Mr
Tembe who was acting for the plaintiff
at that stage.
[49] On the day of the
trial Ms Shazi called Mr Moloi and his legal representative Mr Mkhize
to her office. She showed Mr Moloi
the exculpatory affidavit and it
was confirmed by him. She asked him about the circumstances under
which the statement was made
and Mr Moloi told her that whilst he was
in prison he was visited by a gentleman accompanied by the plaintiff
and that he had been
threatened to make a statement. Ms Shazi was of
the view that she could challenge the validity of the statement
because it had
been made under duress. She said that if Mr Moloi had
indicated to her that he stood by the contents of the exculpatory
statement,
she would have re-considered his
s 204
status as that
would have meant that Mr Moloi was recanting his previous statement
regarding the involvement of the plaintiff.
In those circumstances
she would not have continued with the prosecution against the
plaintiff, which would have been destined
to fail.
[50] Ms Shazi maintained
that before the trial Mr Moloi was very co-operative telling her that
the plaintiff had threatened him.
Mr Moloi was aware of his status
and whilst on bail he used to check in with the investigating officer
Warrant Officer Mngadi from
time to time. On one occasion when he
could not do so he got hold of Ms Shazi herself.
[51] On the date of the
trial Ms Shazi led the evidence of the complainant first. Mr Moloi
then took the witness stand and was warned
in terms of
s 204
of the
Criminal Procedure Act that
he was required to answer questions put
to him honestly and frankly and that if he did so he would be
discharged from prosecution.
Thereafter Mr Moloi started
hyperventilating in the witness stand and was in obvious distress.
The matter was stood down and paramedics
were called. Because of the
anxiety attack which Mr Moloi had experienced, the matter was rolled
over for the next day, when Mr
Moloi returned with a medical
certificate saying he was suffering from anxiety. He said he could
not continue giving evidence.
[52] On the next day, the
23
rd
August 2005 Mr Moloi resumed his evidence and when Ms
Shazi tried to start his evidence, Mr Moloi started vomiting. Ms
Shazi believed
he was vomiting blood and the magistrate stopped the
trial. At the insistence of the magistrate Ms Shazi spoke to her
superiors
and decided not to continue with the evidence of Mr Moloi.
She closed her case and the plaintiff was acquitted in terms of
s 174
of the
Criminal Procedure Act, 1977
.
[53] It was suggested to
Ms Shazi in cross-examination that the question of whether or not Mr
Moloi should have been used as a
s 204
witness had previously been
considered. Ms Shazi replied that someone had considered it, but not
someone in the department of the
Director of Public Prosecutions who
had made a decision in that regard. An undated document was shown to
Ms Shazi which became
Exhibit ‘E’ in the trial. The
document suggested that Mr Moloi be used as a state witness against
the plaintiff. It
was suggested that that was a document which would
have been produced by the public prosecutor and sent to the Director
of Public
Prosecutions. Ms Shazi replied that the document did not
look like something which had been produced by a prosecutor because
all
such documents are produced on letterheads (and this document was
not!). As this document contained the South African police force

number of the plaintiff, she surmised that the document was probably
the work of a police officer and not something submitted to
the
Director of Public Prosecutions for consideration.
[54] Ms Shazi also
recorded that the probability that the plaintiff had been involved in
the housebreaking was much greater than
the probability of Mr Moloi
being able to do the housebreaking in a South African Police compound
on his own. This was particularly
so where there was no forced entry.
This she said was reinforced by the fact that Mr Moloi had been
caught trying to open a window
at premises in the compound on a later
occasion.
[55] Ms Shazi was
cross-examined at length on the timing of the decision to re-charge
the plaintiff and the fact that it was unnecessary
for a warrant of
arrest to have been issued against him. It transpired, however, from
the evidence that the warrant of arrest was
never executed and the
plaintiff responded to the request of Colonel Maphanga to come to
court. All the evidence regarding the
issue of a warrant of arrest
during 2004 is only relevant insofar as it may demonstrate malice on
the part of the officials of
the sixth defendant. I deal with that in
due course.
[56] When the cases for
the defendants were closed, Mr
Tembe
, who appeared on behalf
of the plaintiff applied to re-open the plaintiff’s case. After
listening to argument I permitted
him to do so.
[57] Siyabonga Moloi was
then re-called and testified to the following aspects :
he denied that he had
ever called Ms Shazi to tell her that he was unable to locate the
investigating officer but wanted to report
to her of his
whereabouts;
he denied that he had
ever told Ms Shazi that he had been forced to make the exculpatory
affidavit – this was a reiteration
of his earlier evidence;
he reiterated that he
had had a meeting with Ms Shazi and Warrant Officer Chiliza in her
office. He denied ever having had a meeting
with Ms Shazi where his
legal representative Mr Mkhize was present. Mr Moloi said that he
saw Mr Mkhize for the first time when
he was in the cells.
[58] Captain Feros Dawood
Ebrahim was then called on behalf of the plaintiff. He testified that
between 2001 and 2002 he was working
with the plaintiff. He was
recently contacted to check the police leave records in order to
establish whether the plaintiff was
on duty for the period between
December of 2001 and January of 2002. Captain Ebrahim testified that
according to the records the
plaintiff was booked off sick from
September of 2001 to the end of March 2002, a period of 199 days. He
confirmed that during that
period the plaintiff would have been
allowed to continue residing at the police barracks. He confirmed
that this would have been
the case even though he had been injured.
He was unable to comment on the proposition put to him that the
plaintiff was not bedridden
during that period.
[59] The plaintiff’s
case was then closed. No further evidence was led on behalf of the
defendants.
[60] Having recorded the
evidence led on behalf of the parties, it now falls to me to assess
the value of that evidence. Dealing
with the evidence of Mr Moloi, I
do not believe that it would be appropriate to accept his evidence on
any aspect save where it
is corroborated by others. I say this
because :
he was clearly a party
to the theft of the various items from the flat of Warrant Officer
Chiliza;
he gave no adequate
explanation for the fact that he was asked to take a bag of
belongings to QwaQwa with him and to keep them
there until they were
fetched by the person he identified as ‘Sithole’;
the contradiction
between his evidence that he was never tempted to, nor did he look
into, the bag whilst it was in his possession
to ascertain the
contents, whereas his statement clearly shows that he did so. It is
wholly improbable in any event that he did
not do so. Clearly the
contents of the bag came to the attention of the informer who is
referred to as Mr Mokoena – so
much so that he was able to
identify the person who had made the video recording of Warrant
Officer Chiliza’s wedding and
was able to contact him thereby
ensuring that Warrant Officer Chiliza was alerted to the whereabouts
of his goods. That much
is common cause between the parties;
the improbability that
Mr Moloi would have taken the bag in all innocence is accentuated
when one considers that the bag was not
very large and was taken
from the vehicle into which some of the stolen items were placed by
Mr Moloi. There was clearly room
in that vehicle to have carried the
bag conveyed by Mr Moloi to QwaQwa. An additional factor to be
considered is that Mr Moloi
was going by taxi to QwaQwa;
a further improbability
is that Mr Moloi would have been paid the sum of R200 for doing what
he did for the person who identified
himself as ‘Sithole’.
This is because on the evidence of Mr Moloi the job was one which,
relatively speaking, took
no time at all, and involved very little
effort on his part;
in his evidence-in-chief
Mr Moloi said that when the police officers arrived at the place he
was residing at in QwaQwa he told
them that the stolen goods were
given to him by a police officer whose name was ‘Sithole’.
He showed them the bag
he had received from Sithole. He was then
again asked for the name of the person, this time by Warrant Officer
Chiliza and he
said, in relation to the police officer who had sent
him, ‘He explained himself to me as Sithole’.
[61] The evidence of
Warrant Officer Haynes, insofar as it purports to bolster the case of
the plaintiff, is not helpful. What he
does confirm is that Warrant
Officer Chiliza was at the grille on the day that the plaintiff first
appeared in court and assisted
in calling out the names of the
prisoners including that of the plaintiff. However, Warrant Officer
Haynes himself contradicted
this evidence by saying that Warrant
Officer Chiliza called out the names of the prisoners including that
of the plaintiff, but
then went on to say he was in the office when
the names were called and could not hear this being done.
[62] The evidence of
Captain Sookdhoo is useful inasmuch as he was the person who
commissioned the affidavit by Mr Moloi to the
effect that he had been
asked by Warrant Officer Chiliza to implicate ‘Sithole’.
He had gone to Westville Prison for
that purpose and had been
accompanied by the plaintiff in doing so. The alleged purpose of the
plaintiff accompanying Captain Sookdhoo
was to point out and ensure
the correct identification of Mr Moloi. I shall, for the purposes of
this judgment, accept the evidence
of Captain Sookdhoo. I do not
believe it to be contentious, and insofar as it supports the
plaintiff’s case, it establishes
the formalities of the
affidavit deposed to by Mr Moloi recanting his earlier evidence.
[63] The plaintiff was
not, in my view, an impressive witness. The fundamental basis of his
case is that the person who identified
himself as ‘Sithole’
to Mr Moloi was not the plaintiff. It was some other person and that
was established by the fact
that Mr Moloi himself says so. The
suggestion throughout the plaintiff’s case is that another
person by the name of ‘Sithole’
introduced himself to Mr
Moloi and set him up to assist him in stealing items from the flat of
Warrant Officer Chiliza. There is
no indication as to who this person
could be. Various suggestions which were put to witnesses about other
persons by the name of
‘Sithole’ who did or did not
reside at the single quarters from time to time, but those
suggestions were vague and
uncorroborated. The suggestion that there
was another person other than the plaintiff who introduced himself at
the Workshop shopping
centre to Mr Moloi and who gave him access to
Warrant Officer Chiliza’s room does not fit with the
probabilities or the evidence.
[64] The plaintiff also
maintained that, after he was assaulted by Warrant Officer Mngadi, he
had been placed in the cells at Phoenix
Police Station. He made no
effort to draw his assault or injuries to the attention of the other
police officers even after Warrant
Officer Mngadi left the premises.
[65] The plaintiff
testified that he had signed an interview statement in blank at the
insistence of Warrant Officer Mngadi. This
recorded that he had
sustained no injuries. I find both these suggestions wholly
improbable. As an experienced police officer the
plaintiff was
clearly aware of the danger of his conduct in regard to both these
incidents, and I cannot believe that he would
have acted as he said
he did.
[66] With regard to his
first claim, that the second, third, fourth and fifth defendants
wrongfully and maliciously arrested him
without any reasonable and/or
probable cause, his evidence does not establish the case which he
pleaded. Firstly there is no evidence
that either the fourth or fifth
defendants, Warrant Officer Thabethe or Warrant Officer Cele were
involved in the issue of the
warrant of arrest for the plaintiff in
January of 2002. This was in fact stated by Ms
Lange
who
appeared for the defendants at the outset of the trial and confirmed
by Mr
Tembe
who appeared for the plaintiff.
[67] With regard to the
second and third defendants it is clear from the evidence that :
Warrant Officer Chiliza
was the person whose goods were stolen;
he was informed of the
report made by Mr Mokoena, the informant, in QwaQwa;
he recovered his goods
from Mr Moloi in QwaQwa;
Mr Moloi himself
testified that he was told that the person who told him to remove
the goods from Warrant Officer Chiliza’s
flat was one
‘Sithole’;
Mr Moloi then deposed to
an affidavit before Warrant Officer Mngadi. In the affidavit which
Mr Moloi admitted signing, he stated
that the person who had
introduced himself as ‘Sithole’ was not in uniform and
that he had a limp. This conforms
to the evidence of the plaintiff,
although not to the evidence of Mr Moloi as he testified in court;
In the affidavit deposed
to by Mr Moloi he confirmed that they had gone to the room of
Warrant Officer Chiliza which was next
to the flat of the plaintiff.
[68] In those
circumstances I have no doubt that there was reasonable and probably
cause to charge the plaintiff with the housebreaking
which took place
at the flat of Warrant Officer Chiliza.
[69] With regard to the
involvement of Warrant Officer Mngadi on Count 1, it is clear that he
was appointed the investigating officer
in the housebreaking case by
his superiors. He only became involved when Mr Moloi was returned to
C R Swart Square Police Station
in Durban after he had been arrested
in QwaQwa and the goods recovered.
[70] Warrant Officer
Mngadi testified that he had taken a statement from Moloi and gave
various reasons why he thought Moloi was
competent to read through
the statement himself. He pointed out that in the statement Mr Moloi
had initialled various alterations
made by him in the statement. When
he was cross-examined Warrant Officer Mngadi reiterated that he had
personally given the statement
to Mr Moloi to read. He said that Mr
Moloi was a graduate from the KwaZulu-Natal Technicon and he found it
easier to give him the
statement to read himself. This was not
disputed by the plaintiff’s legal representative.
[71] In cross-examination
Warrant Officer Mngadi was clear that at all stages Mr Moloi knew
that he was talking about the plaintiff.
This was in answer to the
suggestion that the name Siphiwe Rodgers Khumalo was only mentioned
in Mr Moloi’s statement and
not Siphiwe Rodgers Sithole.
However there is no doubt on the evidence of Mr Moloi, which was
corroborated by Warrant Officer Chiliza,
that Mr Moloi mentioned the
name Sithole when he was arrested in QwaQwa. Warrant Officer Mngadi
also said that there were two statements
taken from Mr Moloi and in
one of them he had mentioned Sithole. This was not disputed. In
cross-examination this turned out to
be a reference to a statement
made before Warrant Officer Mngadi by Mr Moloi in which he said that
he had been handed an envelope
by ‘Sithole’ on which was
written ‘S R Sithole’.
[72] It is clear from the
affidavit of Warrant Officer Mngadi that he applied for a warrant of
arrest for the plaintiff on the basis
of the information he had been
given. In my view his conduct in this regard was reasonable. Probable
cause clearly existed against
the plaintiff and in the circumstances
I find that there is no substance in claim 1.
[73] With regard to claim
2 the evidence of the plaintiff is that he was assaulted on the 8
th
January 2002 on the freeway close to the turnoff to the Gateway
shopping centre. The only evidence in this regard is that of the

plaintiff himself which is contradicted by the evidence of Warrant
Officer Mngadi who denies all the allegations of assault. With
regard
to the assault, no J88 document was adduced to evidence any injuries
to the plaintiff. In addition, and when the plaintiff
was placed into
the cells at the Phoenix Police Station, the occurrence book recorded
that he was free of injuries. Had he been
assaulted, as a policeman,
I believe he would have insisted in an occurrence book entry
recording his injuries at the Phoenix Police
Station. In this regard
he was in the presence of other officers and any influence which
Warrant Officer Mngadi would have had
over him would have been
watered down. This was more particularly so when Warrant Officer
Mngadi left the premises of the Phoenix
Police Station, and the
plaintiff was left alone there together with other policeman from the
Phoenix Police Station.
[74] The plaintiff’s
claim with regard to the assault is further contradicted by the fact
that on the 14
th
February 2003 his then attorneys Ngubane
& Partners addressed a letter to the first defendant alleging
that on the 8
th
January 2002 the plaintiff had been
assaulted by Warrant Officer Chiliza. Notice was then given to the
Minister that a claim for
R3 million for damages would be
instituted against him.
[75] The version of
events as given by the plaintiff with regard to the trip from C R
Swart Square in Durban to the Phoenix Police
Station is weakened by
the improbabilities of his version. Warrant Officer Mngadi testified
that he took the plaintiff firstly
to the Durban North Police Station
but was unable to have him kept overnight there because the cells
were full. It was for that
reason that he proceeded to the Phoenix
Police Station. The plaintiff could have obtained evidence that, as
he suggested, there
had been no visit to the Durban North Police
Station on the day he was arrested. There was no suggestion that any
attempt had been
made to obtain that evidence.
[76] In all the
circumstances I am not persuaded that the plaintiff has established
his claim of assault on a balance of probabilities.
[77] With regard to claim
4, the malicious prosecution of the plaintiff in 2004, the
defendants’ evidence largely relies upon
that of the
prosecutrix Ms Shazi. In my view Ms Shazi gave her evidence in a
clear and detailed manner, and she was ready to make
concessions
where they were warranted. When her evidence is viewed together with
that of Ms Mellis and Mr Dyson, it seems clear
that serious
consideration was given by the prosecution staff to the
re-institution of the charges against the plaintiff. The suggestion

by Mr Moloi that he had, immediately prior to the trial, told Ms
Shazi that he intended to repeat what was in the exculpatory
affidavit he had testified to before Captain Sookdhoo was clearly
untenable. As pointed out by Ms Shazi it is wholly improbable
that
she would, having been told that Mr Moloi intended to give evidence
which would demonstrate the innocence of the plaintiff,
have
proceeded with the trial and sought to lead him as a
s 204
witness
when, on the version of Mr Moloi he was going to give evidence
totally undermining the State’s case.
[78] Indeed, although Mr
Tembe
suggested in cross-examination that Ms Shazi had acted
maliciously in re-charging the plaintiff, no basis whatsoever was
laid save
for the suggestion that she had colluded with Warrant
Officer Chiliza. She denied this, and I have no reason to doubt her
denial.
[79] In
Rudolph
and Others v Minister of Safety and Security and Another
2009 (5) SA 94
(SCA) the court said :
‘
[16]
…
The requirements for
successful claims for malicious prosecution have most recently been
discussed in
Minister of Justice and
Constitutional Development v Moleko
[2008] 3
All SA 47
(SCA) para 8 as follows :
“
In
order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove –
that the defendants set
the law in motion (instigated or instituted the proceedings);
that the defendants
acted without reasonable and probable cause;
that the defendants
acted with ‘malice’ (or
animo injuriandi
); and
that the prosecution has
failed.”
As already indicated,
insofar as this claim is concerned, requirements (a), (b) and (d)
above are not disputed by the respondents.
…
[18] The requirement of
“malice” has 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
actio injuriarum
and that what has to be proved in
this regard is
animus injuriandi
. See
Moaki v Reckitt and
Coleman (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. By way of further elaboration in
Moleko
it
was said :
“
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as to
the consequences of
his or her conduct (
dolus
eventualis).
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.” [Paragraph 64.}’
[80] On a balance of
probabilities therefore the evidence of the defence witnesses
regarding the re-instatement of the charges against
the plaintiff
must be accepted and there is accordingly no merit in the suggestion
of a malicious prosecution.
[81] As the plaintiff’s
claims 1, 2 and 4 have failed, his claim 5which is for damages for
the medical conditions from which
he suffered, allegedly as a result
of those claims, cannot succeed.
[82] In the circumstances
I make the following order :
The plaintiff’s
claims are dismissed with costs.
Date
of hearing : 4
th
September 2013
Date of judgment : 11
th
October 2013
For the Plaintiff : T A
Tembe (instructed by Ngubane & Partners Inc)
For the Defendant : N D
Lange (instructed by the State Attorney)