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[2012] ZAGPPHC 12
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Mahlangu v Minister of Safety and Security and Others (32531/2001) [2012] ZAGPPHC 12 (9 February 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 32531/2001
DATE:09/02/2012
In
the matter between
JOSEPH
BUTI
MAHLANGU
......................................................................................
PLAINTIFF
And
MINISTER
OF SAFETY AND
SECURITY
.......................................................
1st DEFENDANT
RICHARDS
LEKOTWANA
MKWANYANE
......................................................
2nd
DEFENDANT
KENNETH
MABUSU
.......................................................................................
3rd
DEFENDANT
JUDGMENT
MSIMEKI,
J
[1]
The Plaintiff brought an action for damages that he allegedly
suffered against the first, second and the third Defendant's based
on
malicious prosecution and unlawful arrest and detention.
[2]
Mr M. F. Ackermann represented the Plaintiff while Mr M. Mphaga
represented the Defendants.
BRIEF
FACTS
[3]
The thrust of the action is contained in paragraphs 7 and 8 of the
Plaintiffs particulars of claim. In paragraph 7 the Plaintiff
alleges
that the second and third Defendants, during January 2001, unlawfully
and intentionally and without reasonable cause whilst
acting within
the scope of their duties set the law in motion against him by laying
false charges of corruption and interference
and hindering the second
Defendant in the exercise of his police duties at Kwa-Mhlanga by
furnishing the following false information
to wit:
1.
That the Plaintiff in a corrupt manner had released a certain Nissan
1400 bakkie to one Sophie Lindiwe Nsidi which is obviously
Msibi.
2.
By alleging that the Plaintiff had no grounds when he so acted.
3.
The Plaintiffs said action was questionable and corrupt.
In
paragraph 8 the Plaintiff avers that the second and the third
Defendants had no reasonable grounds for laying such charges against
him and that they also had no reasonable belief in the truthfulness
of the information. The Plaintiff alleges that the second and
third
Defendants obtained a J50 warrant of arrest which led to his arrest
and detention. He was later released on warning. The
case was
withdrawn against the Plaintiff on 27 March 2001. The Plaintiff
further alleges that he. as a result of the arrest and
detention,
suffered general damages in the amount of R200.000-00 for contumelia,
deprivation of liberty and inconvenience. The
Defendants, in their
response to
paragraph 7 of Plaintiffs particulars of claim, admit
that a police docket - KwaMhlanga
Masl79/01/2001,
indeed, was opened against the Plaintiff on charges of corruption and
that the second Defendant was the complainant
in the said docket.
They plead further that the local Prosecutor applied for the warrant
of arrest based on the information at
his disposal and that they are
not liable for the alleged damages.
THE
ISSUES
[4]
The issue is whether Plaintiffs evidence supports the claim based
either on malicious prosecution or unlawful arrest and detention.
[5]
It is incumbent upon the Defendants to prove the lawfulness of the
Plaintiffs arrest. The Plaintiff has to prove all the other
elements.
COMMON
CAUSE FACTS
[6]
These are that:
1.
The Plaintiff released a motor vehicle that was impounded by the
second and the third Defendants to one Lindiwe Msibi Mahlangu;
2.
The application for the J50 warrant was made by the Senior Public
Prosecutor before a magistrate at Kwa Mhlanga magistrate court;
3.
The Plaintiff was arrested on the strength of the J50 warrant;
4.
The Plaintiffs arrest resulted from his releasing the said motor
vehicle to Lindiwe Msibi Mahlangu.
[7]
To succeed with a claim of malicious prosecution the Plaintiff must
prove that:
1.
The second and third Defendants set the law in motion i.e. they
instituted the prosecution or instigated it.
2.
The second and third Defendants acted without reasonable and probable
cause.
3.
The second and third Defendants were prompted by improper motive or
malice.
4.
The proceedings against the Plaintiff were . terminated in his
favour.
It
is contended on behalf of the Defendants that while the Plaintiff was
charged with the onus to prove the above elements to be
entitled to a
claim based on malicious prosecution he failed to do so and that he,
therefore, is not entitled to such a claim.
It was further contended
on behalf of the Defendants that the evidence of the Senior Public
Prosecutor who applied and obtained
the J 50 warrant of arrest
against the Plaintiff on the basis of the information that was at his
disposal was material and essential
for the determination of the
Plaintiffs claim. Its absence spells calamity to the claim it was
further submitted. This then takes
us to the issue that was raised on
behalf of the Plaintiff namely: that the fact that the Plaintiff was
arrested at the time he
was investigating the case of corruption
against the second and the third Defendants raises some eyebrows and
that the J50 warrant
was not properly sought and obtained- I shall
return to this later.
EVIDENCE
[8|
The Plaintiff and Superintendent Boning testified in support of the
Plaintiffs case while the second Defendant, third Defendant
and
Inspector Mbonani, testified in support of the Defendant's case.
1.
THE PLAINTIFF
The
Plaintiff, a Captain in the SAPS: Counter Intelligence Unit at head
office was in Februar\ -March 2001 a detective sergeant
stationed at
anti-corruption unit in Middelburg. He was the investigating officer
in CAS no: 217/08/99 in which the second and
the third Defendants had
been charged with corruption. The Director of Public Prosecutions, on
23 August 2000, had ordered that
the two Defendants be prosecuted.
The Plaintiff arrested them on 20 September 2000 and took them to
court where they were acquitted
on 16 May 2001. He kept an up to date
investigation diary of events which clearly showed that their case
was still on when they
arrested the Plaintiff and charged him with
corruption. The docket was opened on 19 January 2001 at Kwa Mhlanga:
MAS no 179/01/2001.
The second Defendant, as already alluded to
earlier, was the complainant in the said docket. The allegation was
that the Plaintiff
had handed a Nissan 1400 bakkie to one Sophie
Lindiwe Msibi while he was aware that the said motor vehicle had been
stolen and
that the said Sophie Lindiwe Msibi had not been entitled
thereto. This led to the Plaintiffs arrest at court by the
Defendants
on 14 March 2001 when the Plaintiff had gone there for a different
matter. His hands were cuffed behind his back and
he was then taken
to the police station approximately 800 metres from the court in full
view of the members of the public some
of whom were laughing and
saying that he too was corrupt. His finger prints were taken and he
was then taken back to court where
he appeared without being given
bail. The case was remanded to 11 April 2001. He was taken back to
the police station, searched
and taken to the cells by the third
Defendant who remarked to the 7 to 8 detainees in the cell that the
Plaintiff had been corrupt
and that they should "fuck him up".
Plaintiff testified that on arrival in a cell one is expected to
fight with the boss
of the cell. You become the boss only upon
defeating the boss. He fought with the boss and won the fight. He
testified that the
position would have been terrible had he lost the
fight. He was, however, saved by the arrival of his commander
Superintendent
Boning that evening who took him to Witbank court where he was
released on warning and the matter postponed to 27
March 2001. The
matter was eventually on 27 March 2001 withdrawn when the Director of
Public Prosecutions refused to prosecute
the Plaintiff. Regarding the
allegation that he had released the motor vehicle in a corrupt manner
to Sophie Lindiwe Msibi Mahlangu.
iie testified that the motor
vehicle had been a rebuilt where different parts of different motor
vehicles had been used. He enlisted
the assistance of Mr L. Borman an
expert from Nissan South Africa who informed him that the motor
vehicle had not been stolen.
Indeed, although the motor vehicle ended
up being impounded, same had had no complainant. He was not linked to
any theft. He also
sought a statement of Danielle Nkuna Molobi, the
one who had sold the motor vehicle to Lindiwe Msibi Mahlangu. The
only difficulty
with the 1400 bakkie, according to the second
Defendant, was that the papers e.g. the clearance certificate and the
motor vehicle
did not correspond. He then recommended to Captain Van
der Merwe that the motor vehicle be re tuned to Msibi. The disposal
document
was signed by the Captain and the motor vehicle was duly
returned to Msibi. The motor vehicle was later retrieved by the
second
Defendant and has now been compacted. Msibi's husband was
arrested, detained and later released because of this motor vehicle.
2.
SUPERINTENDENT
BONING
was the commander of the Plaintiff at the anti-corruption unit in
Middelburg. He was advised on 14 March that the Plaintiff
had been
arrested at Kwa Mhlanga. Knowing of the dangers policemen are exposed
to in the cells, he immediately arranged with the
Senior Prosecutor
in Witbank that the Plaintiff be taken there for a formal appearance.
He proceeded to Kwa Mhlanga, fetched the
Plaintiff from the cells and
took him to Witbank court where he was released on warning and the
case postponed to 27 March 2001.
He denied that the second Defendant
spoke to him telephonically about the Plaintiffs statement. He also
denied receiving a letter
which the second Defendant alleged he had
sent him. He was only surprised to learn that the Plaintiff had been
arrested on 14 March
2001. He did not receive the factual report that
the second Defendant claimed to have forwarded to him. He confirmed
that the Plaintiff
indeed, had been in the same cell with other
prisoners. The reception that he received from Kwa Mhlanga police
officials when he
went to assist the Plaintiff left a number of
things to be desired. They were not keen to help him and to release
the Plaintiff
until they were ordered to, after he had telephonically
spoken to their seniors.
3
THE SECOND AND THE THIRD DEFENDANTS.
They
testified confirming that they had at some stage impounded the 1400
bakkie that had belonged to Lindiwe Msibi Mahlangu after
they had
suspected that the motor vehicle had been a stolen motor vehicle.
Goliath, her husband, was, as a result, arrested and
later released.
Goliath had been a complainant in case no: CAS 217/08/99 where he had
alleged that the third Defendant had solicited
a bribe of R400.00
from him which he had paid. The second Defendant was added to the
case on the basis of an allegation of intimidation
relating to the
same matter. The second and the third Defendants contradicted
themselves and each other in many material respects.
Mr Mphaga so
conceded too. This then takes me to the issue of the J50 warrant of
arrest against the Plaintiff which, according
to the submission on
behalf of the Plaintiff, had not been properly sought and obtained.
THE
J50 WARRANT OF ARREST
[9]
There are two letters from the Director of Public Prosecutions'
office dated 19 February 2001 and 2 August 2001. The letters
too deal
with CAS 179/01/2001 which relates to Sergeant J B Mahlangu, the
Plaintiff
THE
LETTER OF 19 FEBRUARY 2001
1.The
letter is addressed to the Prosecutor KwaMhlanga.
2.
It is clear from the letter that that was not the first communication
between the Director of Public Prosecutions' office and
the
Prosecutor's office.
3.
The Director of Public Prosecutions' office, in the letter, was
giving instructions to the Prosecutor regarding the conduct of
the
case.
4.
statement, according to the letter, was needed from Captain Van der
Merwe.
5.
The warning statement of the Plaintiff was also needed. The
investigating officer was directed to contact the area commissioner
if the commanding officer of the Plaintiff (suspect) did not
co-operate. The direction and the instruction do not say that a J50
warrant of arrest against the Plaintiff had to be obtained and that
the Plaintiff be arrested.
6.
The docket was then returned to the Prosecutor who knew well what had
to be done.
THE
DIRECTOR OF PUBLIC PROSECUTIONS' LETTER OF 2 AUGUST 2001
It
is noteworthy that at this stage the Prosecutor had not advised the
Director of Public Prosecutions1 office that Kwa Mhlanga
CAS 217/8/99
with which the Director of Public Prosecutions' office at the time
was ceased with was linked to the very case that
the two letters
relate to i.e. CAS 179/01/2001. This much is evident from paragraph
lof the Director of Public Prosecutions' letter
of 2 August 2001
addressed to The Branch Commander - SAPS: Detective Branch Kwa
Mhlanga appearing on page 366 of the papers. The
letter of 19
February, too, forms page 375 of the papers. It is important to
mention that the Director of Public Prosecutions1
office first became
aware of CAS 179/01/2001 when the Prosecutor: Kwa Mhlanga wrote to
them on 6 February 2001 seeking the Director
of Public Prosecutions'
decision. The Director of Public Prosecutions' office then responded
to the letter first seeking information
before deciding. Instead of
getting the required information, as paragraph 2 of their letter
dated 2/8/01 shows, the Director of
Public Prosecutions' office then
learnt that a J50 warrant of arrest was "somehow obtained
against Mahlangu and that he was
arrested by your Nkwanyana and
Mavuso and brought before court". The Director of Public
Prosecutions' office in paragraph
2 of their letter of 2/8/01 then
wrote: "This action fortifies the belief that these two police
officers were acting in a
personal vendetta agonist Sergeant J B
Mahlangu and misusing the judicial process."
In
paragraph 1 of the same letter of 2 August 2001 the Director of
Public Prosecutions notes: "No mention was made of the fact
that
this matter (CAS 179/01/2001) is linked very closely with another
matter which this office was ceased with as the time, namely
Kwa
Mhlanga CAS 217/8/99. a case of corruption against Sergeant Nkwanyana
and Mavuso of your unit, of which J B Mahlangu was the
investigating
officer. Sergeant Nkwanyana is now the investigating officer against
J B Mahlangu in CAS 174/1/2001 which already
creates a suspicion of
retaliation as a result of CAS 217/8/99." CAS 174/1/2001 appears
to me to refer to CAS 179/01/2001
as the Director of Public
Prosecutions' letter of 2 August 2001 has the CAS no as its heading.
The Director of Pubiic Prosecutions
M Silas Ramaite in paragraph 3 of
the letter then refused to prosecute Sergeant .J B Mahlangu stating :
"I have refused to
prosecute Sergeant J B Mahlangu on these
charges and am of the view that they are being driven by the said two
police officers
in retaliation for Sergeant Mahlangu having done his
duty. I strongly recommend that these actions by these two officers
Nkwanyana
and Mavuso be investigated and the necessary departmental
steps taken. Actions such as these by experienced numbers (sic) of
the
police only help to further tarnish the image of the SAPS".
[10]
It is noteworthy that the second and the third Defendants tried very
hard to convince the court that their case KwaMhlanga
217/8/99 was
disposed of before the investigation in CAS 179/01/2001 was
commenced. The latter CAS 179/01/2001 relates to the corruption
case
against the Plaintiff. This against the backdrop of overwhelming
documentary evidence showing the opposite. The Director of
Public
Prosecutions' letier of 2 August 2110 fully supports this. What I
find striking in this matter is the fact that the Kwa
Mhlanga
Prosecutor could apply for the J50 warrant of arrest against the
Plaintiff knowing fully well that the Director of Public
Prosecutions' office was si ill waiting for the required information
to enable them to decide to charge or not to charge the Plaintiff.
This fact was also well known to the second and the third Defendants
yet they acted outside the instructions of the Director of
Public
Prosecutions' office. The best they could have done would have been
to advice the Director of Public Prosecutions"
office that the
Plaintiff was not co-operating or was refusing to give a warning
statement. After all no one is forced to speak
as one is always
covered by the right to remain silent. This concession was also made
by the second Defendant under cross examination.
He again conceded
that there was no urgency to arrest the Plaintiff. Indeed that
urgency according to the facts and the circumstances
of the matter
never existed. It was the second Defendant's further concession that
he had been aware of the agreement between the
Director of Public
Prosecutions' office and the police that no policeman was to be
arrested unless the Director of Public Prosecutions'
office so
directed. Of course the circumstances of cases differ. This matter,
in my view, does not seem to be in the category of
cases which fall
outside the agreement. The second Defendant conceded that the
magistrate had been relieved of his duties and arrested
because of
corruption. He testified that the Public Prosecutor too had been
relieved of his duties because of corruption. The second
Defendant
testified when cross examined that the Plaintiff was arrested because
he had not furnished them with the warning statement.
Surely this was
not a good enough reason to arrest the Plaintiff given the fact that;
1.
There had been no urgency to arrest the Plaintiff;
2.
There existed an agreement between the Director of Public
Prosecutions' office and the police not to arrest the police unless
the Director of Public Prosecutions' office so directed, and
3.
The Director of Public Prosecutions' office had been waiting for
further information to decide to charge or not to charge the
Plaintiff.
This
situation, indeed, was worrisome to the Director of Public
Prosecutions' office which remarked in its letter of 2/8/01 saying:
''What
is more disturbing is that after I had studied CAS 179/1/2001 and
ordered further investigation of the matter on 19 February
2001 under
my evenly numbered minute and before any decision to prosecute J B
Mahlangu was taken by me it was brought to my attention
that a J50
warrant was somehow obtained against Mahlangu and that he was
arrested by your Nkwanyana (sic) and Mavuso and brought
before
court."
This
clearly shows that the J50 warrant could not have been properly
sought and obtained in the circumstances. Evidence supports
this. The
second and the third Defendants testified that there had been no bad
blood between them and the Plaintiff. Evidence,
however, proved the
opposite. The two Defendants in their testimonies tried but failed
dismally to prove that their case which
the Plaintiff had
investigated against them had been disposed of when they investigated
CAS 179/01/2001 opened against the Plaintiff.
The two Defendants
again gave conflicting evidence regarding:
1.
How and where the Plaintiff was arrested.
2.
Who had arrested the Plaintiff.
3.
Whether or not they had waited for the Plain! iff at court.
4.
Whether the Plaintiffs commander Superintendent Boning had visited
the said Defendants office to look at the docket pertaining
to the
Plaintiff as a suspect.
5.
Whether or not the Plaintiff had been handcuffed.
The
third Defendant faced an uphill in attempting to justify his version
that the case against him and the second Defendant had
been disposed
of when the investigation against the Plaintiff started in light of
the vast number of documents that proved the
opposite and supported
the Plaintiffs version. He ended up telling the court that the
documents had
been
falsified. It was the third Defendants* contention too that there was
no bad blood between him and the Plaintiff yet his (third
Defendant)
statement forming pages 324 to 329 of the papers shows the opposite.
The first paragraph of his statement on page 326
discloses that the
Plaintiff had told him that he was a suspect and that he "had to
feel pain".
[11]
The J50 warrant, in light of the overwhelming evidence supporting the
Plaintiffs version in my view, was improperly obtained.
The evidence
has indeed, revealed that the second and the third Defendants were
untruthful and unreliable. H<>w the Prosecutor
could have
applied for a warrant when the Director of Public Prosecutions'
office was already ceased with the matter, is inexplicable.
The
Public Prosecutor knew this very well and even knew what the Director
of Public Prosecutions' office was expecting from them.
The Public
Prosecutor worked hand in hand with the police and there is,
therefore, no reason for the one not to know what the other
was doing
in the matter. This then strengthens the argument that the office of
the .prosecution as well as that of the magistrate
had not been very
clean. The facts at my disposal do not justify the arrest of the
Plaintiff. The Director of Public Prosecutions'
office still had to
decide whether or not to prosecute the Plaintiff. The Director of
Public Prosecutions' office, indeed, had
every reason to be
disturbed. No one in his sound senses would fail to see what was
happening in the case that involved the Plaintiff
(i.e. CAS
179/01/01). The lawfulness of the arrest of the Plaintiff cannot be
said to have been proved in the circumstances of
the Plaintiffs
matter.
[12]
Indeed, the Plaintiff acquitted himself very well during cross
examination, as Mr Ackermann correctly submitted. No serious
criticism could be levelled against his evidence and conduct during
the events that led to the trial.
[13]
The Defendants' version is that the Public Prosecutor had applied for
the J50 warrant which the magistrate had granted and
on the strength
of which the Plaintiff was arrested. Evidence and the facts of the
matter have clearly revealed that: 1. The second
and the third
Defendants initiated the proceedings against the Plaintiff in that:
(a), it was clear at the time that the Director
of Public
Prosecutions' office still had to decide on whether the Plaintiff had
to be arrested;
(b).
it was the Director of Public Prosecutions' office which had to
decide on whether or not the Plaintiff had to be prosecuted:
(c).
the Director of Public Prosecutions' office did not participate in
the arrest of the Plaintiff. Instead, the Director of Public
Prosecutions'
office was disturbed by the arrest of the Plaintiff. This is evident
from the remarks of the Director of Public Prosecutions'
office on
the matter;
(d)
Nothing justified the arrest of the Plaintiff
(e)
The Senior Public Prosecutor's office was aware that the Director of
Public Prosecutions' office had neither decided on the
arrest nor his
prosecution;
(f)
The investigating officer in the case against the Plaintiff should
also have known that the Director of Public ' Prosecutions'
decision
on the Plaintiffs arrest and prosecution was still pending. This,
because the Director of Public Prosecutions had ordered
that further
information be obtained and it was the investigating officer,
instructed by the Senior Public Prosecutor, who had
to obtain the
information.
It
is no wonder that the Director of Public Prosecutions' office said
that a J50 warrant was 'somehow' obtained against Mahlangu
who "was
arrested by your Nkwanyana and Mavuso." This, in my view, is
indicative of the fact that the Director of Public
Prosecutions'
office ought to have known about the J 50 warrant if same was
properly obtained. The J50 warrant was clearly not
properly obtained.
2.
There was no reasonable and probable cause for obtaining the warrant.
3.
The second and third Defendants were clearly actuated by an improper
motive or malice.
4.
The proceedings against the Plaintiff were terminated in his favour
when the Director of Public Prosecutions' office refused
to prosecute
the Plaintiff resulting in the withdrawal of the charges against him.
5.
The Plaintiff, without the authority of the Director of Public
Prosecutions' office, was arrested and detained.
6.
The second and the third Defendants were motivated by revenge when
the corruption charge was brought against the Plaintiff.
7.
The motor vehicle that the Plaintiff was said to have released in a
corrupt manner to Lindiwe Msibi Mahlangu was not linked
to any theft
or robbery. No such proof was produced.
8.
The Plaintiff involved his senior Captain Van der Merwe before the
motor vehicle was released.
Because
of the evidence at the disposal of the court I do not think that the
need was there to call the Senior Public Prosecutor
to close the
alleged lacunae in the Plaintiffs case which was said to be similar
to the last missing piece of a jigsaw puzzle.
The need, in my view,
was just not there.
The
fact that the facts of this matter are on all fours with those in
Prinsloo and Another v Newan
1975 (1) SA 481
is, in my view,
incorrect. The facts of the two cases are indeed, distinguishable.
First, the Director of Public Prosecutions'
office in this matter
clearly had to decide on the arrest and the prosecution of the
Plaintiff.
Second,
the Director of Public Prosecutions' office was surprised and
disturbed when it learnt that t he J50 warrant had 'somehow'
been
obtained and that that had led to the arrest of the Plaintiff who had
been brought before court.
Third,
the Director of Public Prosecutions' office refused to prosecute the
Plaintiff. Fourth, the Director of Public Prosecutions'
raised the
anomaly of the second Defendant being an investigating Officer in CAS
179/01/01, a case against the Plaintiff who at
the time was the
investigating officer in CAS 217/8/99 which was the corruption case
against the second and the third Defendants.
Fifth,
the Director of Public Prosecutions' office in so many words pointed
out that CAS 179/01/01 was clearly motivated by revenge
and that the
two Defendants 'were acting in a personal vendetta against Sergeant
JB Mahlangu and misusing the judicial process'.
What else can it be
other that that. The Director of Public Prosecutions' office had seen
the Plaintiff as someone who had to suffer
for 'having done his
duty'. This to me, seems to be a proper observation.
Sixth,
what makes it worse is that the office of the Prosecution and that of
the Magistrate had been tainted by corruption which
was being
investigated against the two offices. This, as evidence showed,
resulted in some of the officers being relieved of their
duties.
[15]
The facts having established that the J50 warrant was improperly
obtained, the Defendants, as Mr Ackermann correctly submitted,
cannot
and should not be allowed to hide behind it (the warrant). The
Plaintiff, indeed, deserves protection from the courts against
conduct such as demonstrated by the two Defendants. If the conduct of
the two Defendants and the Prosecution had been clean and
proper why
was the Director of Public Prosecutions' office kept in the dark
regarding the existence of CAS 217/8/1999 and CAS 179/01/01
as well
as their relationship. Why, instead of providing the Director of
Public Prosecutions' office with the required information,
was the
J50 warrant obtained for the arrest of the Plaintiff and why was such
warrant obtained behind the Director of Public Prosecutions'
office's
back. The J50 warrant was, indeed, improperly obtained.
[16]
The Plaintiff has successfully established that:
1.
While he was the investigating officer in the case against the second
and the third Defendants, the second Defendant supported
the third
Defendant opened a case against him which, as evidence and Mr
Ackermann have shown, established a prima facie probability
of
revenge.
2.
The Director of Public Prosecutions under CAS 217/8/99 (the case
against the t wo Defendants) ordered that the two Defendants
be
prosecuted.
3.
The case against both of them was heard on 16 May 2001 when they were
acquitted.
4.
On 10 January 2001 Captain van der Merwe, the acting commanding
officer of the anti corruption unit, after she was approached
by the
Plaintiff, ordered the release of a 1400 Nissan bakkie to Sophie
Lindiwe Msibi.
5.
On 14 March 2001 in the morning, the Plaintiff went to Kwa Mhlanga
court which, according to him, is approximately 800 metres
from the
police station for a different case. There he was arrested by the two
Defendants who cuffed his hands behind his back.
He was caused to
walk back to the police station in full view' of members of the
public some of whom laughed and remarked. He was
taken back to court
in handcuffs where he failed to get bail. He was then taken to the
police station where he was locked up in
a cell with other prisoners
who were ordered 'to fuck him up'. The opposite occurred as he
defeated the boss of the cell in a fierce
battle.
6.
His commander rescued him in the evening by taking him to Witbank
court where he was released on warning and his case postponed
to 27
March 2001.
7.
The case was withdrawn against him on 27 March 2001 after the
Director of Public Prosecutions' office refused to prosecute him.
8.
The arrest was not lawful.
9.
The arrest, as Mr Ackermann correctly submitted, was accompanied by
malice in the form of revenge. The Plaintiff was, as he put
it, 'to
be fucked up' in the cell. Fortunately tor him he won the fierce
battle that he had with the boss of the cell.
10.
The unlawful detention was not for a very long time, but it was as Mr
Ackermann put it 'potentially dangerous'.
11.
He, highly regarded as a police officer, was arrested, handcuffed and
taken to the police station and to court in full view
of members of
the public who laughed and remarked. He walked the distance of
approximately 800 metres from court to the police
station. Mis
dignity and esteem, according to him, were badly affected and dented.
Mr Ackermann submitted and correctly, in my
view, that the abuse of
power for their own selfish ends by the two Defendants, the fellow
police officials, was shocking and hurtful
to the Plaintiff.
12.
The proceedings were terminated in his favour.
13.
He, indeed, has suffered damages for which he must be paid.
[17]
The Plaintiffs claim, in an amount to be determined, in the
circumstances ought to succeed with costs. The only question which
immediately arises is as to how much the Plaintiff is entitled to. Mr
Mphaga submitted that in the event that the Plaintiff succeeded
with
his claim, the amount of R200.000.00 would be excessive and
unjustifiable in the circumstances of the Plaintiffs case. The
Plaintiff, according to him, was detained for less than a day. Sight,
in my view, should not be lost of the circumstances of this
case. The
parties i.e. The Plaintiff and the two Defendants were fellow police
officials. They were colleagues. The arrest was
prompted by revenge.
Clearly as the Director of Public Prosecutions' office correctly
observed this amounted to abuse of judicial
process by the two
Defendants. This disturbed the office of the Director of Public
Prosecutions which recommended that the actions
of the Defendants 'be
investigated and the necessary departmental steps be taken1 as the
actions only helped 'to further tarnish
the image of the SAPS.' This
clearly shows that this type of conduct is serious and deserves an
appropriate sanction. One cannot
agree more. The circumstances of
this case are such that an award of R20.000.00, as suggested by Mr
Mphaga would be unfair and
unreasonable. Mr Ackermann, on the other
hand submitted that R100.000.00 would be fair and reasonable. An
amount of R120.000.00.
in my view, having regard to all the
circumstances of the case, the degree of malice, the Plaintiffs
status, the publicity and
the manner and the duration of the
detention would be fair and reasonable in the circumstances.
COSTS
[18]
In deciding whether the Plaintiff should be awarded High Court costs
I had regard to the complexity of the matter, its ambit
and the
reasonableness of the Plaintiffs decision to have the matter heard by
the High Court and not the Magistrate's court. I
also had regard to
the methods employed by the Defendants in dealing with the Plaintiffs
claim i.e. whether they were untruthful
and evasive. I, find nothing
wrong with the Plaintiffs decision to institute the action in this
forum. The Plaintiff, because of
the nature and the circumstances of
the case, is indeed, entitled to Supreme Court costs. At any rate the
award I regard as appropriate
in Plaintiffs case is an amount of R
120.000.00.
PRAYER
15.2
Prayer
15.2 relates to interest and does not seem to reflect normal and
standard practice. I have therefore had regard to prayer
15.4 in
arriving at the order that follows.
ORDER
[19]
I. in the result, make the following order:
Judgment
is granted in favour of the Plaintiff against the Defendants jointly
and severally the one paying the others to be absolved
for:
1.
Payment of an amount of R120.000.00.
2.
Interest thereon at the rate of 15.5% per annum from date of summons
to date of final payment.
3.
Costs of suit.
M.
W. MSlMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 26 October 2009
For
the Plaintiff: Adv. M. F. Ackermann
Instructed
by: Erasmus Ferreira & Ackerman c/o Liesl van RerVsburg Attorneys
For
the Defendants: Adv. M. Mphaga Instructed by: The State Attorney
Judgment delivered on: 09 February 2012