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[2013] ZAECMHC 28
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Mphaleni v Minister of Safety and Security (1495/2007) [2013] ZAECMHC 28 (4 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION : MTHATHA
NOT
REPORTABLE
CASE NO:
1495/2007
In the matter
between :
THOBEKA
MPHALENI
......................................................................................................
PLAINTIFF
and
MINISTER
OF SAFETY AND SECURITY
.........................................................................
DEFENDANT
JUDGMENT
DAWOOD
J:
1.
The Plaintiff herein sues the Defendant for wrongful and unlawful
arrest and detention; humiliation and degradation and contemelia,
and malicious prosecution.
2.
The Plaintiff in her particulars of claim attacked the validity of
the warrant of arrest, on the basis that:-
(a)
The Magistrate issued the warrant without information that the
Plaintiff defrauded the Department of Social Development and/or
any
person; and
(b)
She accordingly sued the second and third Defendant in these
proceedings on the basis that the Magistrate did not have
information
at her disposal which was sufficient to form a
reasonable suspicion that an offence of fraud had been committed,
she had no reasonable
grounds to suspect that the Plaintiff had
committed the offence she was allegedly suspected to have committed.
3.
The Plaintiff also attacked the validity of the warrant on the
basis:-
(a)
that the warrant of arrest was improper because Inspector Ngcikiza
applied for and obtained a warrant of arrest without properly
investigating the allegation against the Plaintiff and without
having sufficient or any information to form a reasonable suspicion
that the Plaintiff committed an offence of fraud but nonetheless
deposed to an affidavit to that effect.
(b)
That Inspector Ngcikiza had no reasonable grounds to suspect that
the Plaintiff had committed the offence he alleged that
the
Plaintiff was suspected of having committed.
4.
The Plaintiff alleged that her arrest and detention was accordingly
without justifiable cause and consequently her arrest and
detention
were wrongful and unlawful.
5.
The Plaintiff was detained for several hours at Wellington prison
and released the following morning on bail in the sum of
R1000-00.
6.
On the 12th of July 2006 Inspector Ngcikiza wrongfully and
maliciously set the law in motion against the Plaintiff by laying
a
false criminal charge of fraud, against her and caused the Plaintiff
to appear in court on several occasions.
7.
The Plaintiff further alleged that Inspector Ngcikiza set the law in
motion against the Plaintiff without probable or reasonable
cause
for doing so and without any reasonable belief in the truth of the
information. He accordingly acted with malice with the
intent to
injure the good name of the Plaintiff. The prosecution failed in
that the criminal charges were withdrawn against the
Plaintiff by
the prosecuting authority.
8.
The Plaintiffs testimony was briefly that:-
(a)
She was arrested in the presence of her child by Inspector Ngcikiza
and placed at the back of the police van on a cold winter
night
without her being shown any documentation and despite her denial
that she was making false claims in respect of non-existent
children
to the Department of Social Welfare, and despite her producing the
birth certificates of her children and grandchildren,
to prove to
him that she did not have any illegal children that were receiving
funds from the State.
(b)
Inspector Ngcikiza worked with the father of one of her children,
Siphiwo Sikuza at the commercial branch offices and she
had seen him
there on the day that she went to drop off the maintenance letter.
(c)
She had not spoken to him on that day but assumed that he had seen
her as well and knew who she was.
(d)
She only spoke to him on the day of her arrest and he made no
mention of the DNA tests. According to her there was something
untoward about the manner the tests were conducted in Mthatha and it
was for this reason that she requested them to be conducted
in East
London.
(e)
She was detained in the cells with 4 other females and did not have
anything to eat that evening as they had already been
given their
food prior to her arrival nor did she eat the following morning as
she did not feel up to it. She did not sleep either
because of the
predicament she found herself in and prayed all night instead. The
cell was in a bad state,
(f)
The toilet was inside the cell and there was no privacy if one
wanted to use the toilet. The toilet was overflowing with faeces
and
there was a horrible stench in the cells* She did not use the
toilet,
(g)
She received 2 disability grants one in respect of Thandokazi who
was asthmatic and the other in respect of Siphokazi who
had been
injured and blinded in one eye,
(h)
She was released before lunch the following day after she was
granted bail at court and taken to Wellington Prison.
(i)
Under cross examination she indicated that she was not shown the
warrant of arrest and only learnt about it at court so paragraph
2.1
of her particulars of claim where it is alleged that inspector
Ngcikiza arrested her with a warrant of arrest is incorrect
and she
does not know how a warrant is applied for.
(j)
Inspector Ngcikiza’s version that was put to her was that:-
(i)
She did not produce any clinical records or birth certificates on
the evening of her arrest. She denied this saying that she
produced
them and he read them using the lamp.
(ii)
Inspector Ngcikiza came to her homestead on a subsequent occasion
and it was then that she produced the clinical records
and birth
certificates. She denied this saying he took the cards on the day of
her arrest but he did go to her homestead whilst
she was in custody
looking for Siphokazj and that also in her presence took Siphokazi
and Thandokazi to Doctor Notywala.
(iii)
It was put to her that he only executed the warrant of arrest on the
day of arrest which she denied saying she gave them
to him all the
medical cards and birth certificates when he asked for illegal
children.
(iv)
It was put to her that he drove a double cab - not a bakkie and she
was put in the passenger seat. She denied this saying
it was a van
that only conveys 2 passengers and is a bakkie without a canopy and
she was made to sit at the open portion, at
the back.
(v)
She also denied that there were female officers present when she was
arrested stating that there were only male officers.
9.
That concluded her testimoney and the Plaintiffs case was closed,
10.
The Defendant after an Application for absolution from the instance
was refused in respect of the Second and Third Defendants
called the
Second Defendant to testily.
11.
Elizabeth Doreen De Waal testimoney was briefly as follows:-
(a)
She is a regional court Magistrate.
(b)
On the 6th of July 2006 an application was made by the prosecutor
who brought a police officer to her.
(c)
The prosecutor said that the officer wanted to apply for a warrant
in terms of section 43 and the application complied with
the
requirements.
(d)
She asked if he read the statements to make certain that he had
information under oath.
(e)
She relied on what Ngcikiza told her that the Plaintiff had
committed fraud without particulars of the fraud being furnished
to
her because all she needed to ascertain is that he had reasonable
suspicion without specifying the essentials of the offence.
(f)
Magistrates are not allowed to have insight into the docket; they
rely upon the integrity of the prosecutor and the police
officer.
(g)
She was extra cautious as she did not want to put people in jail
that should not be there and therefore asked further questions
from
Ngcikiza.
(h)
She believed that the statement made by Inspector Ngcikiza was
correct.
(i)
She expected him to have investigated the fraud against the
Plaintiff and to present the evidence in court and documentary
proof
(j)
She stated that if she had known that there was no evidence that
SASSA had been defrauded, that she would not have authorized
the
warrant and she most certainly would not have authorized on the
basis of information furnished by Sikuza or had she known
that no
investigations had actually been conducted,
(k)
She authorized the warrant on the basis of what he had said to her
and the prosecutor that he had conducted all the necessary
investigations,
(1)
She would have expected him to have applied his mind as to whether
or not to arrest if evidence proved that no offence was
committed,
despite her having issued the warrant, she would have expected him
to use his discretion and not arrest.
(m)
She would not have authorized the warrant if she was aware that the
charge concerned SASSA and no one from SASSA had laid
a charge
against the Plaintiff, nor was there any investigation conducted by
or on behalf of SASSA, nor was any statement or
documents obtained
from SASSA.
(n)
She would not have issued the warrant if she had seen the statement
which concerns a personal issue because Sikuza was prejudiced
and
she would not have authorized any warrant based on information
supplied by him.
(o)
She believed Ngcikiza and authorized the warrant on the belief that
what he said was true.
(p)
She confirms that she was misled by him and would not have
authorized the warrant on the information she now has.
12.
That concluded the defendant's case with no further witnesses being
called.
13.
The Plaintiff was a good witness and readily made concessions. She
was not prone to exaggeration even when describing the
condition of
the prison cells or her sleeping. She did not blame it on the state
of the ceil but rather on her emotional state
of mind. She impressed
me as a good, credible witness who gave her evidence in an honest
forthright manner.
14.
The Magistrate was an objective and impressive witness who willingly
made concessions and was totally honest. Her testimoney
is also
accepted as being truthful and credible.
15.
The Defendant failed to call the arresting officer who was also the
officer who applied for the warrant.
16.
ISSUES
TO BE DETERMINED
16.1.
The first issue is whether or not the Plaintiff has established a
claim against the Second and Third Defendants, that is,
whether she
has established that the Magistrate acted mala fides in authorizing
the warrant which is what she would need to prove
according to the
relevant authorities.
16.2.
The Magistrate in issuing a warrant of arrest must comply with the
provisions of section 43 of the Criminal Procedure Act
which reads
as follows:-
'
(1)
Any magistrate, or justice- may issue a ‘warrant for the
arrest of any person upon the •written application of
an
attorney-generala public prosecutor or a commissioned officer of
police
—
a)
which sets out the offence alleged to hive been committed:
b) which alleges
that such offence was committed within the area ofjurisdiction of
such magistrate or, in the case of a Justice,
within the area of
jurisdiction of the magistrate within whose district or area
application is made to the justice for such warrant,
or where such
offence was not committed within such area of jurisdiction, which
alleges that the person in respect of whom the
application is made,
is known or is on reasonable grounds suspected to be within such
area of jurisdiction; and
(c) which states
that from information taken upon oath there is a reasonable
suspicion that the person in respect of whom the
warrant is applied
for has committed the alleged offence.
(2) A warrant of
arrest issued under this section shall direct that the person
described in the warrant shall be arrested by a
peace officer in
respect of the offence set out in the warrant and that he be brought
before a lower court in accordance with
the provisions of section
50.
(3)
A warrant of arrest may be issued on any day and shall remain in
force until it is cancelled by the person who issued it or,
if such
person is not available
,
by any person vjith like
authority
,
or until it is executed."
16.3.
In May v Union Government
1
,
it was inter alia stated
‘
It is not
necessary for the issuing of the warrant that all the facts
necessary for a conviction be given under oath. It is only
necessary
that reasonable grounds appear from the affidavit. The official
requesting the warrant is not limited to the information
under oath
-when the suspicion is formed. The information under oath must be
assessed in the context of all the facts which have
been determined,
both those under oath and others. The official also does not have to
accept all the information under oath as
true: he or she can accept
some allegations and not others, even doubt them all He or she must
have information under oath and,
from that, in the correct context,
form a reasonable suspicion. ”
16.4.
The bona fide exercise of a discretion by a magistrate or justice of
the peace under this section cannot be assailed in
a court* See
Groenewald v Minister van Justisie
1973 (3) SA 877
(A) at 883H with
reference to Shidiack v Union Government
1912 AD 642
at 651.
Although Groenewald is not folly supported in Prinsloo v Newman
1975
(1) SA 481
(A) at 500C and 505D it is nevertheless confirmed (at
500B-505C) that the discretion the magistrate or justice of the
peace has
to exercise cannot* barring exceptional circumstances, be
questioned in a court.
17.
It is evident from the aforegoing that a Magistrate's discretion,
exercised in good faith, is not justiciable in a court of
law.
18.
In this case the prosecutor that approached the Magistrate to issue
the warrant did not make the application in writing himself
but
instead relied upon the affidavit of a non-commissioned officer
Inspector Ngcikiza and his verbal testimoney to support the
Application*
19.
In Minister of Safety and Security v Sekotho and Another
2
,
contains a discussion on the role of peace officers and the
discretion they hold in respect of an arrest which would, with
respect, finds equal application in determining the discretion of a
Magistrate.
"Harms DP
(Nugent JA, Lewis JA, Bosielo JA and K Pillay AJA concurring)
[34]
These principles are in substance no different from those formulated
A by Innes ACJ in Shidiack v Union Government. Now it
is settled law
that where a matter is left to the discretion or the determination
of a public officer, and where his discretion
has been bona fide
exercised or his judgment bom fide expressed, the Court will not B
interfere with the result Not being a judicial
functionary no appeal
or review in the ordinary sense would lie; and if he has duly and
honestly applied himself to the question
which has been left to his
discretion, it is impossible for a Court of Law either to make him
change his mind or to substitute
its conclusion for his own
,
. . .
There are circumstances
in which interference would be possible and right If for instance
such an C officer had acted mala fide
or from ulterior and improper
motives, if he had not applied his mind to the matter or exercised
his discretion at all, or if
he had disregarded the express
provisions of a statute
—
in
such cases the Court might grant relief. But it would be unable to
interfere with a due and honest exercise of discretion,
even if it
considered the decision inequitable or wrong, ”
20.
The Plaintiff in her testimoney failed to set out any basis upon
which it could be inferred that the Magistrate acted
Mala
fides
, or even that she was aware
that she was arrested on the basis of a warrant of arrest or had
even been shown a warrant of arrest,
21.
The Magistrate testimoney illustrated that she acted upon the
evidence presented to her in the form of an affidavit from the
investigating officer and his verbal testimony and she had no reason
to disbelieve what was contained therein and further confirmed
to
her by the investigating officer and the prosecutor.
22.
The bona fides of the Magistrate was not placed in issue and the
evidence tendered by her supports the contention that she
acted bona
fides.
23.
There is no legitimate basis for rejecting the testimoney of the
Magistrate that she acted properly and prudently in issuing
the
warrant on the information placed before her and that such
information compiled with the provisions of section 43 of the
Criminal Procedure Act.
24.
She had no reason to disbelieve or question the veracity of the
information given to her and she properly acted in accordance
with
that information.
25.
On the basis of the legal proposition, in the absence of mala fides,
the Plaintiff cannot succeed in establishing a claim
against the
Magistrate for the issuing of the warrant.
26.
The Plaintiff has failed to discharge the onus resting upon her to
show that the issuing of the warrant by the Magistrate
was wrongful,
unlawful or mala fides.
27.
The claim against the second and third Defendant accordingly falls
to be dismissed with costs.
28.
The next issue whether or not Inspector Ngcikiza arrest of the
Plaintiff was lawful or unlawful and whether he was responsible
for
the malicious prosecution of the Plaintiff.
i)
The Magistrate in her testimoney indicated that if she had had sight
of the docket and the actual evidence relied upon by the
investigating officer she would not have issued the warrant of
arrest.
ii)
It was evident from the Plaintiff testimoney;-
a)
That she knew the inspector from seeing him with the father of her
child;
b)
That he accordingly worked with Mr Siphiwo Sikuza and this was not
disputed.
c)
That she was arrested despite her telling him that she was not
making any unlawful claims and providing him with proof of the
birth
certificates and the clinical records of the children for whom she
claimed support, as well as her other children.
d)
That no statement from anyone at SASSA was in his docket.
e)
That no document or applications made by the Plaintiff to SASSA were
in the docket
f)
That no complaint was lodged by SASSA against the Plaintiff
iii)
It was further evident from the statement made by Inspector Ngcikiza
on the 6th of July 2006 when he applied for a warrant
of arrest in
connection with an offence of fraud that was apparantly committed on
the 2nd of June 1999 and it was granted on
the 6th of July 2006 but
according to the document he only executed it at 7pm on the 11th of
July 2006.
iv)
His affidavit reads as follows:-
“
/
am
Inspector in the SAPS stationed at the Umtata Commercial Branch ...
I am also an
investigator of this case Mthatha CAS 818/03/2006.
I
made all the
necessary
investigations
and dm to the
statements received which are in
the
docket proved with no reasonable
doubt that Mpahleni Thobeka Cornelia has committed the offence of
fraud.
It
is on these grounds that I apply for the warrant of arrest for
Mphahni Tobeks Cornelia. This statement was made on &h of
My
2006.
"
v)
He made a statement on the
30th of
November 2005
wherein he stated
that Ms Mpahleni was receiving a child support grant with false
information submitted or presented at the office
of Social
Development.
"His
informant told him she received a child support grant for 5
children. One of those children was fraudulently made as
disabled.
The said child is a student at Zimele Junior Secondary School.
The child was
not suffering from any pain or injuries and is always in good health
The
statement obtained from the deputy principal merely indicates that
Thandokazi Mphaleni is not mentally disabled and was fresh
and
healthy and that they would not be able to register any student who
is mentally disabled and they are not authorised to do
so.
"
vi)
Mr Sikhuza made a statement where; he alleged that the Plaintiff
defrauded him by falsely claiming that the child was his
and also
defrauded the Department by alleging that the child was disabled for
whom he was paying maintenance.
vii)
He accordingly wanted his money back from her.
“
I lay a
charge against her by getting my money and defrauding the
Department.”
viii)
This bit seems to have been added in.
ix)
He failed to state where he was employed and in what capacity in
this affidavit.
x)
“
In
Minister of
Safety
v
Sekotho
and Another
3
the court
discusses section 40(1) of the Criminal Procedure Act (arrest
without a "warrant) as opposed to section 43 (arrest
with a
warrant), but the principles seem to be equally applicable. The
Court reaffirmed that an arrest is infraudem legis when
the arrestor
has used a power for an ulterior purpose, but a distinction must be
made between the object of the arrest and the
arrestormotive
-
‘
'object
relevant while motive is not
”
4
xi)
Courts do sometimes
interfere to protect cm injured party against an abuse of power,
example, in those well recognised cases in
which powers, given to
public bodies to be used for certain purposes, are wrongly used by
them to achieve other purposes. See
Sinovich
v
Hercules Municipal Council
1946 AD 783
, To profess to make use of a power which has been given
by statute for one purpose only
,
while in fact using it for a
different purpose, is to act in fraudem legis, see Van Eck and Van
Rensburg v Etna Stores 1947 2
S 984 (A) 998. Thus, where a warrant
of arrest is requested under the pretext that it is acquired for a
legitimate purpose while
in fact the intention is not to use it for
that purpose, but for another unauthorized purpose such person acts
mala fide and
in fraudem legis. See Minister van die SA Polisie
v
Kraatz
1973 3 SA 490
(A) 508
xii)
IN FRAUDEM LEGIS
5
In
fraud of the law
.
“
A
transaction is in fraudem legis when it is designedly disguised so
as to escape the provisions of the law, but falls in truth
within
these provisions” (per 1NNES, CJ in Dadoo Ltd v Krugersdorp
Municipal
1920 AD 547)
, In such cases the important point is “not
the interpretation of the law as the interpretation of the
transaction ”
(ibid 544). See also R v Gillet
1929 AD 364
;
McAdams
v
Fiander’s Trustee and
Bell
1919 AD 227.
as to the principles to be applied in determining
whether a transaction is in fraudem legis, see Commission of Customs
v
Randles Bros and Hudson
1941
AD 369
; Du Plessis v Joubert
1968 1 SA 585
(A) 598; Thorntons
Transportation Ltd
v
Macaulay
1962 1 SA 255
, Van
Eck
v
Etna Stores
1947 2 SA 9S4
(A)
998; Minister van SA Polisie
v
Kraatz
1973 3 SA 490'(A)
507,
See Wills’s Principles of South African Law 6ed 319 436 525.
"
xiii)
In this case it appears that the arresting officer abused his power
and position as a police officer presumably to avenge
a wrong or
perceived wrong to his colleague and not for any lawful purpose and
was accordingly
infraudem legis
.
xiv)
The warrant was obtained for an ulterior motive. The warrant itself
was properly authorised as already indicated and cannot
be set aside
with regard to any deficiencies relating to the bona fldes of the
Magistrate,
xv)
Despite the warrant being issued on a Weekday, he chose to wait
until after hours on a Sunday to execute the same, further
demonstrating his abuse of power by ensuring she could not be taken
immediately upon execution of the warrant and apply for bail.
xvi)
The actions of Inspector Ngcikiza in obtaining the warrant upon
furnishing false information to the Magistrate and executing
the
same clearly constitutes wrongful action and although the warrant
was properly issued his conduct tainted the validity of
the same and
it is on that basis that despite the arrest taking place pursuant to
a warrant of arrest, the arrest by Inspector
Ngcikiza is found to be
unlawful due to his conduct in obtaining and executing it.
xvii)
Fourie
J in Brown and Another
v
Director
of Public Prosecutions and Others
6
had
this to say>
"The
question, however, remains whether the execution of the warrant in
regard to 1SI applicant on 9 May 2008 constituted
a lawful arrest
Put differently, is there merit in the contention of the 1st
applicant that there was no need for the 2nd respondent
to have had
him arrested, as his attendance at Court could have been secured by
less int)*usive measures
,
such as warning or summoning
him to appear in Court on these new charges? In this regard I (sic)
incline to the view that, even
if a warrant for the arrest of
suspect has been lawfully obtained in terms of section 43 of the
Criminal Procedure Act, this
in itself does not justify an arrest to
secure the attendance of the suspect in Court...
Put
differently
the
conduct
of the person effecting an arrest should not constitute
an
abuse of the right given to
such person to effect ike wrest ’'
(emphasis
Mini) ”
xviii)
The Plaintiff in this matter was charged with fraud in that she
wrongfully received social support and made false applications
to
Social Development. This does not appear to have been placed in
dispute at court.
xix)
There was, as already indicated, no statement received from any
member of the Department of Social Development, nor a complaint
from
them, nor any documentary evidence by the contents of the docket,
xx)
Mr Ngcikiza set the law into motion and he was responsible for the
prosecution of the Plaintiff in this case.
xxi)
In
Minister of Safety and Security v
Moleko
7
it was held that the following must be proven:-
In order to
succeed (on the merits) with a claim for malicious prosecution, a
claimant must allege and prove-
a) that the
defendants set the law in motion (instigated or instituted the
proceedings);
b) that (he
defendants acted without reasonable andprobable cause;
c) that the
defendants acted with “malice ” (or animo injunandi);
and
d)
that the prosecution has failed, (in this case
,
of course, Mr Moleko was
acquitted at the end of his criminal trial and requirement (d) need
detain us no further)
the
cases of Rudolph and others
v
Minister of Safety and
Security
8
,
and Minister of Safety and Security v Seymour
9
have discussed this issue as well.
(xxiii)
In this case these requirements have been met having regard inter
alia to the following:-
a)
Ngcikiza instigated the proceedings;
b)
He had no reasonable or probable cause to do so since no
documentation or statement from anyone at Department of Social
Welfare
was obtained to constitute evidence or even a complaint
against the Plaintiff by an authorised official of SASSA.
c)
He obtained the warrant in furtherance of his private agenda and
acted with malice or animus, injuriandi which is illustrated
by the
fact that:-
i)
he obtained the warrant on a week day but chose to execute it after
hours on a Sunday;
ii)
he ignored the Plaintiffs explanation;
iii)
he worked with the alleged father of one of the Plaintiffs children;
and
iv)
He was aware that the father disputed paternity and had made a
statement to him but did not disclose this or base his charges
on
the DNA findings or on her committing fraud viz a viz his colleague.
d)
He thus acted with malice, in that his actions appeared to have been
motivated by seeking retribution for his colleague rather
than any
evidence proving that the Plaintiff defrauded SASSA.
e)
There was no statements in the docket pertaining to SASSA or anyone
from SASSA even on the apparent investigation he had conducted.
f)
The charges against the Plaintiff were eventually withdrawn.
g)
He failed to testify or give any evidence to gainsay the Plaintiffs
version.
h)
Based on the evidence as tendered, the Plaintiff has discharged the
onus resting upon her to establish that despite the warrant
her
arrest by Inspector Ngcikiza was wrongful and unlawful and that her
prosecution was set into motion by him maliciously and
accordingly
that her prosecution which was instigated by him constituted
malicious prosecution.
29.
The First Defendant is accordingly liable to compensate the
Plaintiff for her wrongful arrest and detention and malicious
prosecution.
30.
I have taken due cognizance of the authorities referred to by the
parties on the issue of quantum of damages.
31.
I have also had regard to the impact of the incarceration and
malicious prosecution upon the Plaintiff and the fact that the
Plaintiff was traumatized by the indignities and. awful conditions
of the cells during her incarceration and the inconvenience
of
attending court until the charges were withdrawn.
32.
Having regard to all the relevant facts and considerations an amount
of R75 000-00 is considered appropriate as damages for
the
Plaintiffs unlawful arrest and detention as well as her malicious
prosecution, taking due cognizance of the period of her
incarceration as well as the period it took before charges were
finally withdrawn and the impact these would have had on her.
33.
The matter warrants costs on a high court scale however not attorney
and client costs in my view.
34.
I accordingly make the following order:-
(i)
the Plaintiffs action against the second and third defendant is
dismissed with costs;
(ii)
the first defendant is held liable for the damages suffered by the
Plaintiff for her unlawful arrest, detention and her malicious
prosecution;
(iii)
the first defendant is directed to pay to the Plaintiff the sum of
R75 000-00 as and for the aforesaid damages; and
(iv)
the first defendant is directed to pay the plaintiffs costs of suit.
F.B.A.
DAWOOD
JUDGE
OF THE HIGH COURT
DATE
HEARD: 03 MAY 2013
DATE
DELIVERED: 04 OCTOBER 2013
FOR
THE PLAINTIFF: MR HINANA
PLAINTIFF
ATTORNEYS: CAPS PANGWA
&
ASSOCIATES
SUITE
302, OFFICE 311 AND 312
CITY
CENTRE COMPLEX
YORK
ROAD
MTHATHA
TEL:
047 532 3664
FOR
THE DEFENDANT: MR GAGELA
DEFENDANT’S
ATTORNEYS: STATE ATTORNEY
C/O
THE OFFICE OF STATE ATTORNEY
BROADCAST
HOUSE
94
SISSION STREET
FORTGALE
MTHATHA
REF:
76612/-A1 (MRBEMBE)
1
1954
(3) SA 120
(N) at 125B confirmed in Minister van Polisie v Kraatz
supra at 504H).
2
2011
(5) S.A 367
(SCA) at paragraph 34
3
2011
(5) SA 367
(SCA) (also at
[2011] 2 ALL SA 157
(SCA)) -
4
Ibid,
paragraph 31.
5
Ibid
6
2009
(1) SACR 218
(CPD) at 226 J - 227 C. See also Theobald v Minister of
Safety and Security
2011 (1) SACR 379
(GSJ) at 406 paragraph 320.
7
[2008]
3 ALL SA 47
(SCA) at paragraph 8
8
2009
(5) S A 94
(SCA) (also at [2009] 3 ALL SA 323 (SCA))
9
2006
(6) SA 320
(SCA)