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[2012] ZAGPPHC 131
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Fletcher-Morgan and Others v Cost and Another (53948/2008) [2012] ZAGPPHC 131 (25 June 2012)
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 53948/2008
DATE:25/06/2012
In
the matter between:
ROSLIND
JOAN
FLETCHER-MORGAN
…........................................................
1
st
PLAINTIFF
CHRIS
MORGAN
.....................................................................................................
2
ND
PLAINTIFF
GARTH
SCHUTTE
..................................................................................................
3
rd
PLAINTIFF
And
GABOR
VICTOR COST
….....................................................................................
1
st
DEFENDANT
(ID:
...)
MINISTER
OF SAFETY AND
SECURITY
….........................................................
2
ND
DEFENDANT
JUDGMENT
BAQWA
J
The
parties
[1]
The first plaintiff is the daughter of the second plaintiff and the
third plaintiff is the grandson of the second plaintiff.
The
plaintiffs instituted action against the first defendant who is a
former lover of the first plaintiff. The second defendant
is the
Minister of Police who is sued in his capacity as such.
[2]
The action is premised on three subheads, namely, malicious
prosecution, unlawful arrest and monies lent and advanced.
[3]
Malicious Prosecution
3.1.
The Plaintiffs claim that on 4
th
January 2008 first
defendant wrongfully and maliciously laid changes of attempted
murder, robbery and theft of his motor vehicle
and furniture against
them.
3.2.
The charges were initially lodged at Sinoville Police Station where
first plaintiff was initially detained. The plaintiffs
claim that
the first defendant laid the charges well knowing that they were
false and with the intention that members of the South
African Police
would react thereon and imprison them.
3.3
The plaintiff's case is contained in the evidence of the eight
witnesses who were the three plaintiffs, a police officer from
Douglasdale Police Station, Andre Thomas Dalton, Jane Eleanor
Morrison, who was an employee of Tracker, Matthew Green, Dr Francois
Trutter, a clinical psychologist and Constable Violet Sehloho who was
the investigating officer also from Douglasdale Police Station.
[4]
The background to the case is briefly as follows:
First
plaintiff and first defendant had been lovers and they had cohabited
for a period of about eighteen months. They ran separate
businesses
with the first plaintiff operating a carpet cleaning business whilst
first defendant operated a bathroom renovation
business. During this
period, first plaintiff owned or was in possession of an Opel motor
vehicle whilst first defendant was the
owner of a Colt bakkie. Both
parties had brought various household items such as microwave,
washing machine and furniture for utilisation
in the common
household. During the period of cohabitation they had agreed to sell
the Opel motor vehicle for the sum of R9 500-00
( nine thousand five
hundred) which by agreement was utilised as part payment for a
deposit for the purchase of a Mazda- Drifter
bakkie. It is common
cause that the Mazda bakkie was utilised by the first plaintiff
whilst the first defendant utilised the Colt.
It is also common cause
that the relationship between the two parties was volatile as a
result of this volatility they had experienced
a period of separation
and thereafter re-uniting. The incident which led to this case
represents another episode when the parties
once more reached a point
where they had to go their separate ways.
[5]
The testimony of plaintiffs is an account of the events during the
night of 4 January 2006, on which the first plaintiff called
the
second and third plaintiff to assist her to remove items which
belonged to her from the premises which were owned by the first
defendant at 218 seven Oaks, Chartwell.
[6]
On that night of 4 of January the three plaintiffs, a person called
Hein and another removed items from first defendant's aforesaid
residence which were pointed out by the first plaintiff as her
property. These were loaded into two vehicles which had been brought
by second and third plaintiff and into the Mazda bakkie which was
ordinarily used by the first plaintiff. During the loading process,
Hein had slapped first defendant with an open hand and he was
restrained and warned by second plaintiff to desist from further
assaulting first defendant as they had not come there to assault
anyone.
[7]
On Monday 7 January, first defendant consulted an attorney to whom he
made a statement exhibit A 213 in these proceedings
7.1.
A most perfunctory reading of the statement A 213 narrates the stormy
relationship between first plaintiff and second plaintiff.
It is a
three page typed statement which according to first defendant was
written by the attorney.
7.2.
In paragraph 3 first defendant states as follows:
"
/ depose to this affidavit in order to bring criminal charges of
robbery and assault with the intent to do grievous bodily
harm
against the following people:
3.1.
Ms Rosalind Fletcher Morgan
3.2.
Mr Chris Morgan
3.3.
Mr Garth Schutte
3.4.
Two other gentlemen whose full and further particulars are presently
unknown to me. One of these unknown gentlemen I have come
to know by
his first name namely Hein."
7.3.
The rest of the statement details the volatile relationship, the
break up, the rekindling thereof and the resumption of co-habitation.
No where does it allege any violent acts by any of the plaintiffs
except Hein as aforesaid.
7.4.
Paragraph 11 of A213 further states as follows:
"At
approximately 12 o'clock noon on the 5
th
of January 2008
Ms Flecther- Morgan and her son Garth returned along with the
gentleman known as Hein to my residence and returned
the keys to my
other vehicle, a Mitshubishi light delivery vehicle and cellular
telephone and the keys to the residence"
7.5.
It is worth noting that on this Saturday the 5
th
of
January first defendant did not go to the police station to lay any
charges nor did he do so the following day which was a Sunday.
He
confirmed that nothing would have prevented him from doing so.
7.6.
It is only after consultation with his attorney on Monday the 7
January that he lay these charges and reported his vehicle
as stolen.
This he did whilst knowing who was in possession of the vehicle in
question, namely, the.first plaintiff. He also had
the cell phone
number of the first plaintiff but he did not call her.
7.7.
He further telephoned the investigating officer Constable Mavhungu on
the 8 January and discussed the recovery of the motor
vehicle and
apprehension of first plaintiff.
7.8.
Quite clearly the first defendant did not just make a statement to
his attorney and hand over same to the police. He was in
his actions
doing something more to ensure that the persons he had fingered were
put behind bars.
[8]
In order to establish the claim of malicious prosecution the
plaintiffs have to prove that:
8.1.
The law was set in motion
8.2.
Against the plaintiffs
8.3.
Without reasonable and probable cause
8.4.
Maliciously or with animus injuriandi
8.5.
The prosecution or civil action must have failed
The
plaintiff must prove that the proceedings were instituted at the
instigation of the first defendant. Setting the law in motion
or
instigating a prosecution is the making of an accusation of a
criminal offence to a police officer with the intention of causing
the prosecution of a particular person. The test is whether the first
defendant c(jd more than to present A 213 to the police and
leave
them to act on their own. See Lederman vs Moharal investments(Pty)
Ltd 1969(1) 190(A) at P191.
Principles
of Delict by Jonathan Burchell at p206
[9]
From the evidence presented in these proceedings it is patently clear
that:
9.1.
The plaintiffs never assaulted first defendant. It was Hein who
slapped first defendant and a strange factor is that Hein has
not
been apprehended nor was there any attempt to bring him to court.
There was no proof of any common purpose between the actions
of Hein
and the plaintiffs as far as the assault was concerned.
9.2.
There was no evidence of a robbery whatsoever. Even though there was
clearly a disagreement between the first plaintiff and
first
defendant this did not result in a violent deprivation of property.
This is borne on by the return of certain items by first
and third
plaintiff to the first defendant on the following day.
9.3.
Similarly, the vehicle in question, a Mazda Drifter Bakkie had been
purchased jointly by first defendant and first plaintiff
in that the
latter had contributed to the deposit paid for the vehicle. This was
not disputed by the first defendant. Even when
she came back to
return items on the following day first plaintiff was driving the
Mazda bakkie. These can hardly be said to be
the actions of a thieves
or robbers and other remedies were available to the first defendant
other than laying the charges of theft
and robbery which he preferred
against the plaintiffs.
[10]
In the light of the considerations stated above, I am driven to
conclude that the plaintiffs have proved that the first defendant
instigated the prosecution against them.
Unlawful
arrest and detention
[11]
Regarding the first plaintiff it is common cause that the arrest was
on the 7
th
of January 2008. The liability for that arrest,
if any, would lie against the Metro Council concerned and nor the
second defendant.
The Metro Council was not cited as a party in these
proceedings and therefore I say no more in that regard.
[12]
On the 8
th
of January 2008 it is the evidence of Constable
Mavhungu, the investigating officer that first plaintiff was
transferred from Sinoville
and taken to Douglasdale Police Station
where she was charged and detained. This was confirmed by a police
officer from Douglasdale,
Andre Thomas Dalton.
[13]
I have already analysed the nature of the statement A213 which was
submitted by first defendant on the basis of which the first
plaintiff was arrested. It would indeed seem that the police in
Douglsdale did not apply their minds when detaining the plaintiffs
on
the different days on which they were charged and detained.
[14]
What appears to have happened is that upon reading paragraph 3 of
A213 the police read that as a schedule 1 "red flag"
which
had to lead to one consequence, namely, arrest and detention. In my
view, the police ought to have paid a closer look at
the statement
especially as it was recorded elsewhere by a person who was not a
member of the police force. I re-iterate that even
a cursory reading
of the statement would have indicated that this was a domestic or
civil dispute which did not merit a criminal
sanction. This the
police did not do. They did not do this on the 7
th
on the
8
th
and 9
th
of January 2008.
[15]
What we have to do with here is the so called Wednesbury Principles
which were referred to in the judgment of Greene MR in
Associated
Provincial Picture Houses Ltd v Wednesburry Corporation(1948) 2 All
ER680.
[16]
These principles are also discussed to in the case of Minister of
Safety and Security v Sekhoto 2011(5) SA367 at page 381 (SCA)
where
his lordship Harms DP expressed himself as follows:
"[34]
These principles are in substance no different from those formulated
by Innes AC J in Shidiak v Union Government
(1912 AD 642
at 651-652 )
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 judgement bona fide expressed,
the court will not 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
officer had acted mala fide or from ulterior and improper motive, if
he has not applied his mind
to the matter or exercise his discretion
at all,........................ in such cases the court might grant
relief But it would
be unable to interfere with a due and honest
exercise of discretion inequitable or wrong".
[17]
In casu I am of the view that the police officers concerned acted in
a robot like fashion. They allowed the mere statement
of schedule 1
offences in a statement written by a civilian to dictate the course
of action they had to take. In other words, they
did not apply
their minds to the matter
and totally and negligently failed to
exercise a discretion.
[18]
Counsel for second defendant has relied on the presence of four
jurisdictional facts contained in Section 40(1 )(b) of the
Criminal
Procedure Act 51 of 1977 (" the Act") for the arrest of the
plaintiffs namely:
18.1.
The arrestor must be a peace officer
18.2.
The arrestor must entertain a suspicion
18.3.
The suspicion must be that the suspect (the arrestee) committed an
offence referred to in schedule 1 and; -
18.
4.
The suspicion must rest on reasonable grounds
.(my
underlining)
As
regard 18.4 the criterion is, of course objective and is "not
whether a policeman believes that he has reason to suspect,
but
whether, on an objective approach, he in fact has reasonable grounds
for his suspicion."
See
Duncan v Minister of Law an J Order
1986 (2) SA 805
(A) at 818
Principles of Delict by Jonathan Burchell at p204
[19]
On a conspectus of the facts referred to above and a proper reading
of A213 paragraph 18.4 above did not exist. In other words,
if there
was a suspicion on the part of the police offipers concerned, such a
suspicion did not rest on reasonable grounds. There
was simply no
schedule 1 offence committed despite the glib mention thereof in
paragraph 3 of A213.
[20]
The police officers concerned thereof simply took the contents of
A213 at face value and super imposed the injunction emanating
from
schedule 1 to arrest and or detain the plaintiffs.
[21]
I have come to the conclusion that such arrest and/or detention in
respect of the plaintiffs was in the circumstances outlined
above
wrongful and unlawful.
See
Gellman v Minister of Safety and Security 2008(1) SACR 446 at
paragraph 82-83
[22]
If the situation was viewed differently, it would imply that police
officers should act in a robot-like fashion. Any person
would simply
bring a statement to a police station alleging robbery or a similar
schedule 1 offence and a police officer, purely
on the strength
thereof would proceed to arrest and/ or detain whomever would be
fingered in that statement. That would, in my
view, lead to gross
injustice.
[23]
In the Sekhoto decision (supra) his lordship justice Harms DP at para
50 of that judgement states as follows:
"Onus
in the context of civil law depends on the circumstances of policy,
practice and fairness, and if a rule relating to
onus is rationally
based, it is difficult, to appreciate why it should be
unconstitutional. Hefer J A also raised the issue of
litigation
fairness and sensibility. It cannot be expected of a defendant, he
said, to deal with unsubstantiated averments of mala
fide and the
like, without specific facts on which they are based being stated. So
much the more can it not be expected of a defendant
to deal
effectively with a claim as in this case in which no averment is
made, save a general one that the arrest was "unreasonable".
Were it otherwise, the defendant would in effect be compelled to
cover the whole field of every conceivable ground for review,
in the
knowledge that, should he fail to do so, a finding that the onus has
not been discharged, may ensue. Such a state of affairs
said Hefer. J
A, is quite untenable.
[24]
The current case can be easily distinguished from the set of facts
outlined by Harms JA. The unreasonable nature of the actions
of
members of the South African Police is not being alleged in general
terms. It hinges squarely on the manner In which they dealt
with the
plaintiffs and A213. They completely failed to apply their minds.
Their thinking simply locked onto the fact that the
allegations made
in A213 concerned Schedule 1 offences and to them, that seemed to be
the end of the matter.
[25]
The fact is that the police did not investigate the allegations
levelled by the first defendant and had they done so, it would
have
been ascertained that the entire incident was a civil dispute as was
later ascertained when the charges were withdrawn against
the
plaintiffs.
[26]
I accordingly find that even though the initial arrest of the first
plaintiff was not effected by members of the South African
police the
subsequent charging of the plaintiffs at Douglasdale Police Station
and detention was unlawful.
Money
lent and advanced (first Plaintiffs Third Claim)
[27]
First plaintiff testified that she lent certain monies to the first
defendant which were to be repaid in due course.
[28]
First defendant denied owing the said monies and stated that the
monies paid into his account were in fact monies owed to him
in terms
of an agreement entered into between the parties. Such an agreement
was denied by first plaintiff. First defendant did
not deny that
first plaintiff had a carpet cleaning business which she had built
from the ground prior to meeting first defendant.
It does therefore
seem rather improbable that within the short period that they had go
together first plaintiff would donate fifty
percent of the proceeds
from her business to the first defendant.
[29]
First defendant admitted that an amount of R109 500-00 was paid into
his bank account by the first plaintiff. First plaintiff
supported
her testimony by producing the relevant bank statements. She coufcl
not prove monies allegedly paid in cash, in his plea
first defendant
admits that an amount of R6000-00 was paid to him. This does however
not reflect the bank statements.
[30]
In the circumstance I find that the first plaintiff has proved her
claim but only to the extent of R115 500-00.
[31]
First defendant instituted a counterclaim. In these proceedings he
was unrepresented and despite assistance lent to him by
the court to
enable him to present his case in a cogent manner, he appeared to
experience some difficulties. This is evidenced
by the fact that he
mero motu abandoned all the claims when he testified under oath.
[32]
In any event he had dismally failed to prove a case with regard to
the monies he was claiming against first plaintiff's business
and Mr
Green, the buyer, testified to the effect that first defendant was
not the cause of the sale of first plaintiff's business
to him and
that he proved to be an impediment in that transaction. In the
circumstances, first defendant could not have been entitled
to fifty
percent of the proceeds from the subsequent sale.
Assault
claim.
[33]
First defendant also claimed damages following an assault. He however
conceded in his testimony that none of the plaintiffs
assaulted him
but rather a person called Hein who was never arrested and against
whom no civil claim was pursued.
Legal
costs claim and wrongful arrest
[34]
Lastly first defendant claims legal costs from first plaintiff for
wrongful arrest. He however conceded that first plaintiff
did not lay
any charges against him. Quite clearly he brought the wrong party to
court.
[35]
I accordingly find that first defendant had failed to prove his
counterclaim against the plaintiffs.
Quantum
[36]
Whilst it is useful to have regard to awards made in previous cases,
the correct approach is to have regard to all the facts
of each
particular case and to determine the quantum of damages in such
facts.
See
Minister of Safety and Security v Seymour 2006(6) SA 320 SCA at 325
par 17
Rudolf
and Others v Minister of Safety and Security and Another 2009(5) SA
94 SCA at para 29.
[37]
In casu first plaintiff was charged at Douglasdale Police Station and
thereafter detained for three days. Second and third
plaintiffs were
taken to Douglasdale Police Station, arrested and charged and
detained overnight. They appeared in court the following
day and were
released on warning.
As
Van Rensburg J said in Thandani v Minister of Law and Order 1991(1)
SA 702 (E) at 707B
"..................
Sight must not be lost of the fact that the liberty of the individual
is one of the fundamental rights
of a man in a free society which
should be jealously guarded at all times and there is a duty on our
courts to preserve this right
against infringement. Unlawful arrest
and detention constitutes a serious inroad into the freedom and
rights of an individual."
[38]
It was the evidence of constable Violet Sehloho that first plaintiff
had upon being admitted to detention, fingerprinted, had
her personal
effects removed, undressed and body searched. The search included
search of her clothing, bags and cavities.
[39]
According to the psychologist, Trutter, plaintiffs had been
humiliated and traumatised by their experiences, to varying extents
according to their treatment and duration of the period of detention.
Shearer
J in Ngcobo v Minister of Police
1978 (4) SA 930
(D) stated obiter,
"................. / would have been disposed to hold that while
a cause of action accrues at the moment
of the commencement of
unlawful detention, that cause of action changes and enlarges in
scope as the detention continues; that
any given moment during
detention there is only one cause of action for damages for the
period of detention up to that moment;
and that at the conclusion of
the period of detention there exists only one cause of action which
has assumed its final and complete
form at the moment of the
release."
[40]
In the result, judgment is given in favour of the plaintiffs and the
following order is made:
40.1.
In regard to malicious prosecution the first defendant shall pay the
first plaintiff the sum of R100 000-00 with costs.
40.2.
In regard to unlawful detention the second defendant shall pay the
first defendant the sum of R200 000-00 with costs.
40.3.
In regard to wrongful arrest and unlawful detention the second
defendant pay the second and the third plaintiff the sum of
R25
000-00 each with costs.
40.4.
In regard to monies lent and advanced, first defendant shall pay the
first plaintiff the sum of R115 500-00 with costs.
40.5.
The first defendant's counterclaim is dismissed with costs.
S.A.M.
BAQWA
Judge
of the North Gauteng High Court
Counsel
for the plaintiffs: Adv B.D Stevens
Attorneys
for plaintiffs: J.W Wessels Theron Inc
Counsel
for the first defendant: In person
Attorneys
for the first defendant: In person
Counsel
for second defendant: Adv J Motepe
Attorneys
for second defendant: State Attorney