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[2012] ZAKZDHC 6
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Maharaj v Government of the Republic of South Africa (476/2001) [2012] ZAKZDHC 6 (1 January 2012)
IN THE KWAZULU-NATAL HIGH COURT: DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 476/2001
In the matter between:
MEERCHAND MAHARAJ
…..............................................................................
Plaintiff
and
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
…...................................................................................
Defendant
________________________________________________________________
J U D G M E N T
________________________________________________________________
KOEN J
:
INTRODUCTION:
[1] The plaintiff claims damages from the defendant as follows:
(a) R1 million for pain, suffering and contumelia in respect of
wrongful and malicious prosecution;
(b) R5 500,00 in respect of legal expenses.
No evidence in support of the claim for legal expenses was adduced,
and at the conclusion of the trial, plaintiff's counsel indicated
that the claim for legal expenses was not persisted with.
[2] The malicious prosecution is averred to arise from ‘certain
members of the Justice Department’, having allegedly
unlawfully
and maliciously set the law in motion against the plaintiff by
instigating charges of fraud alternatively theft, alternatively
corruption and defeating and / or obstructing or attempting to defeat
the course of justice, resulting in the plaintiff having
to appear in
the Magistrate's Court on 28 January 2000. The matter was adjourned
to subsequent appearances on a number of occasions.
On 12 June 2000
the charges against the plaintiff were withdrawn.
[3] It is not disputed by the defendant that certain officials of the
National Prosecuting Authority caused the plaintiff to be
charged as
alleged. The defendant pleads that the ‘prosecution was based
on good cause and was instituted in good faith’,
more
particularly that the officials were in possession of information and
/ or evidence which was sufficient for a
prima facie
case
against the plaintiff.
THE APPLICABLE LEGAL PRINCIPLES:
[4] The requirements for succeeding with a claim for malicious
prosecution have been restated recently in
Minister of Justice and
Constitutional Development v Moleko.
1
A plaintiff has to prove:
(a) that the defendant set the law in motion (instigated or
instituted the proceedings);
(b) that the defendant acted without reasonable and probable cause;
(c) that the defendant acted with ‘malice’ (or
animo
injuriandi
);
(d) that the prosecution has failed.
THE CENTRAL ISSUES FOR DETERMINATION
:
[5] The parties are at
ad
idem
that the requirements in
subparagraphs [4](a) and (d) in the preceding paragraph were met.
What remains in dispute is whether the
plaintiff has proved:
(i) that the defendant acted without reasonable and probable cause;
(ii) that the defendant acted with ’malice’.
THE FACTUAL BACKGROUND
:
[6] The following facts are either common cause or not disputed. They
are taken largely from the evidence of the plaintiff:
(a) During 1999 to 2000 the plaintiff was an additional magistrate in
Durban
2
who presided over district court 10.
(b) With knowledge of the judgment
inter alia
in
S v Reddy
and Others
3
he from time to time, in matters that came before him, imposed
sentences providing that either the whole or part thereof be
suspended,
pursuant to the provisions of s 297 (1)(a) (cc) or (hh) of
the Criminal Procedure Act 51 of 1977 (‘the CPA’)
4
,
on condition that certain payments be made to specifically identified
beneficiaries.
(c) The amount ordered to be payable to beneficiaries, such as the
SPCA, Hospice, Business Against Crime and others, was determined
with
reference to the amount of a fine which would otherwise have been
considered as appropriate, had the plaintiff decided to
impose a
fine, given the circumstances relating to the particular
contravention.
(d) This was also a practice followed by some other magistrates, who
granted similar types of orders.
(e) How the beneficiaries initially came to be determined and how the
money directed to be paid to them reached the beneficiaries,
was
explained with specific reference to Business Against Crime. A
witness had testified as to what its objectives were, so that
the
plaintiff had some background as to its activities.
(f) In other cases there would not be any evidence from the
particular beneficiary, but the plaintiff would simply make such an
order in his discretion, having identified the particular beneficiary
referred to in the order as deserving of such benefit. The
beneficiary would be notified and representatives from that
beneficiary would then call at the magistrate’s court and issue
a receipt, a copy of which would be attached to the Charge Sheet. The
bench book would be endorsed to the effect that ‘beneficiary
notified’. If the beneficiary was not present, then the money
would be paid to the Clerk of the Court and the beneficiary
would
then be notified by the Clerk of the Court.
(g) The plaintiff merely issued these orders and handled payment of
of the monies personally.
(h In some instances, the plaintiff contended that the prosecutor
might have requested such a sentence but he conceded that this
was
not necessarily so.
(i) During or about 1998 a crèche was started in the Durban
magistrate's court building for people in the building, either
staff
members who contributed fees for the privilege to allow their
children to make use of the crèche, or to allow children
of
accused persons and witnesses to be secured there without any fee
being paid whilst their minders were otherwise busy in court.
(j) According to the plaintiff, he had no direct connection with this
crèche, but knew of its existence.
(k) At a magistrate's meeting, at some stage, Mr Smit, a
co-magistrate and subsequently co-accused with the plaintiff, during
a private discussion with the plaintiff, raised the subject of the
crèche and it becoming a beneficiary of these orders issued
by
the plaintiff from time to time. According to the plaintiff’s
evidence Mr Smit said words to the effect that ‘…the
special projects from the Chamber of Commerce are busy with projects
… They are also assisting in the court with the crèche
… You have made all these previous orders. If the occasion
arises and you see fit to do so would you mind considering it?"
The plaintiff replied that he had no problem with that request. He
explained in his evidence that this was how he came to know
that the
Chamber of Commerce special projects related to projects within the
court building.
(l) The plaintiff thereafter commenced imposing sentences and
granting similar suspension orders as before, but now providing for
payments to beneficiaries variously referred to as ‘DCC (Durban
Law Courts) community crèche’, or ‘Chamber
of
Commerce special projects’. In all these instances the crèche
was intended to benefit.
(m) These types of sentences were subsequently reviewed, disapproved
of and set aside in a judgment by Van der Reyden and Niles-Dunér
JJ, probably
5
on the basis that there was no link or nexus between the nature of
the offence of which a particular accused was convicted and
the
beneficiary identified for payment
6
.
(n) The plaintiff did not know from his own knowledge whether a
Chamber of Commerce special projects fund existed.
(o) Once the orders were made by him, administrative clerks employed
in the building, notably Karlien Marais and Preggy Govender
were
summoned to the plaintiff's court either by him personally, or by
others at his instance. The plaintiff would direct the accused
to
these officials at the back of the court who would collect the monies
and issue an unofficial receipt, of the standard variety
one can
purchase from stationery dealers, one copy of which would be attached
to the charge sheet or summons. The receipt would
reflect receipt by
the Chamber of Commerce special projects or Chamber of Commerce or
‘DCC’ or ‘Durban Community
Courts’. In the
case of one accused, Flora Dlamini, a typed receipt was issued with
the magistrate's court stamp thereon.
(p) These officials who collected the monies were, to the knowledge
of the plaintiff, not ‘people from the Chamber of Commerce’.
(q) The bench book would be endorsed to reflect ‘beneficiary
notified’. According to the plaintiff, his understanding
was
that,
‘the clerks were part of the people involved with the crèche
by the Chamber of Commerce as part of their project for
the crèche.
So if they collected the money, to me that was sufficient compliance
that it was the Chamber of Commerce.’
(r) The funds were however never received by the Durban Chamber of
Commerce and Industry.
(s) At all material times par 162 (c) of the Code for Clerks of the
Court provided in respect of compensation payable directly
to a
complainant that:
‘Where another institution or individual is charged with the
recovery of the compensation, the clerk of the court must inform
the
said institution or individual in writing of the particulars of the
sentence and the conditions of suspension and request institutions
or
individuals to apply for the implementation of the sentence if the
accused fails to comply with the conditions of suspension
and
requests the institution or individual to apply for the
implementation of the sentence if the accused fails to comply with
the conditions of suspension. A copy of the notice must be attached
to the record. The application for implementation must be accompanied
by an affidavit in which particulars of the breach of conditions are
to be set out.’
(t) On 10 January 2000 the plaintiff deposed to an affidavit which
was handed to the police explaining the nature and extent of
his
involvement .
(u) On 24 January 2000 the Director of Public Prosecutions
represented by a Mr Sankar had determined that the plaintiff and Mr
Smit be prosecuted summarily in the Regional Court.
(v) On 28 January the plaintiff and Mr Smit were required to appear
in court.
(w) On 23 February 2000 the plaintiff deposed to a second affidavit
referring to the involvement of Mr Smit and detailing the
communications made to him by Mr Smit on which he based his belief,
thought process and understanding.
WHAT WAS AVAILABLE TO THE STATE WHEN THE DECISION TO PROSECUTE
WAS TAKEN
:
[7] As significant as the plaintiff's oral evidence of his version of
events and his motivation for acting in the manner he did
as
testified during the trial may be, the crucial issue is what
information and evidence was available to the State when the decision
to prosecute was taken and whether that, and any inferences to be
drawn there from, were sufficient to at least
prima facie
point to the commission of an offence by the plaintiff.
[8] The defendant, represented by the Directorate of Public
Prosecution had the content of the police docket as at 24 January
2000 available to it when the decision was taken to prosecute the
plaintiff. This docket contained inter alia the various charge
sheets
in respect of which the orders were made, as well as various
affidavits by would be State witnesses, and also the affidavit
by the
plaintiff dated the 10th January 2000. It was agreed between the
parties that these affidavits in the docket are what they
purport to
be. The defendant thus had evidence on oath of the allegations
recorded in these affidavits, although the correctness
thereof was
not admitted by the plaintiff. Mr Sankar testified that he had held
consultations with many of the witnesses and had
satisfied himself as
to their credibility. However his impressions as to their credibility
and whether the allegations the various
state witnesses deposed to
may ultimately be proved, is not relevant to this trial.
[9] I do not intend repeating the contents of these affidavits which
were in the docket in detail. They are contained in exhibit
D2. I
shall only briefly refer to the portions thereof relevant to this
judgment.
[10] The further affidavit by the plaintiff dated the 23 February
2000 was also referred to in the evidence. It is not clear whether
this affidavit found its way into the docket and if so when. It seems
that it might only have been presented to the prosecuting
authorities
when representations were made to the Director of Public Prosecutions
towards the middle of 2000 to withdraw the charges.
It might be the
‘written representations’ referred to in the letter from
the Director of Public Prosecutions dated
6 June 2000 advising that
the charges against the plaintiff were to be withdrawn and recording
the intention on the part of the
prosecution to call the plaintiff as
a state witness in the trial against Mr Smit. The investigation diary
in the docket did not
refer to this affidavit being filed in the
docket and
ex
facie
the document it does not appear to
have been allocated an ‘A’ reference number, as is usual
with affidavits filed under
the ‘A’ clip in a docket.
However, it does seem strange and improbable that the plaintiff would
go to the trouble of
preparing this affidavit and deposing thereto on
23 February 2000, simply to then withhold it until some months later.
Whatever
the correct factual position may be, it is clear that this
affidavit was certainly not available to the State at the time when
the decision to prosecute was taken, as it was not yet in existence
by that date.
[11] The events having occurred some eleven years ago Mr Sankar was
unable to recall what exactly had motivated him to prosecute,
save to
state that having perused the contents of the docket he was satisfied
that there was a case made out which had to be answered.
He however
conceded that it was a difficult decision and that when he discussed
it generally and superficially with some prosecuting
colleagues,
their partially informed views whether to prosecute or not were not
unanimous.
[12] In my view, the decision to prosecute the plaintiff was
justified and the subsequent decision to withdraw the charge against
the plaintiff understandable. I conclude thus for the following
reasons:
(a) The nature of the orders granted. It became a condition of
suspension of various sentences that payment of certain amounts
had
to be made to the Chamber where there was no link or nexus between
the subject matter of the charges and the Chamber. This
on its own,
although certainly not decisive, would have appeared very suspicious
to any reader of the docket, as potentially pointing
to a possible
nefarious purpose being sought to be achieved. The orders granted by
the plaintiff were subsequently found by two
Judges of this Division
to be irregular and were set aside. I share that view. The fact that
the orders were not competent and
subsequently declared to be such,
obviously does not establish
per se
that the State was
entitled to prosecute. Not every mistake by a Judge or Magistrate
means that a prosecutable offence has been
committed. But the unusual
nature of the order in my view certainly created a suspicion, which
together with the other factors
below, gave rise to a
prima facie
case. This is also particularly so where according to the
affidavits of a number of prosecutors, all filed in the docket, they
had
not asked for these particular orders or required payment to the
Chamber, but the orders were issued by the plaintiff of his own
volition.
(b) Although the orders were made in favour of the Chamber of
Commerce special project, or the chamber described by other
designations,
the references in all instances was clearly intended to
be the Durban Chamber of Commerce and Industry. There is no other and
there
has been no suggestion that any other chamber than the Durban
Chamber of Commerce and Industry was intended. Indeed the receipts
reflected the recipient also not as any ‘project’ but in
most instances as ‘Chamber of Commerce’, or payment
being
received ‘for Chamber of Commerce’. According to the
affidavit of Mr Parsons, the Vice-President of Finance and
Treasure
for the Durban Chamber of Commerce and Industry, the Chamber had not
been notified of any such orders from which it was
to benefit, nor
had any arrangements been entered into with the Chamber allowing for
such orders, nor had any funds ever been received
by the Chamber.
This evidence was in direct conflict with the entry reflected in the
bench book on every occasion that the beneficiary
had been
‘notified’. It also conflicts directly with what is to be
gleaned from the charge sheets and bench book namely
that payment had
been made to the chamber, when the chamber in fact had no knowledge
thereof and did not receive same. Certainly,
to any reader, these
circumstances would point to some potential misrepresentation or
possible theft of monies.
(c) The plaintiff knew that these funds, resulting from suspended
sentences imposed by him, were being receipted in his court,
often at
his direction, by Department of Justice officials who had nothing to
do with the cash hall or the chamber, but were Justice
administrative
officials. They purported to receive these funds ‘for’ or
on behalf of the chamber. The procedure in
par 162 (c) of the Code
for Clerks of Court had not been complied with, whether that was
known to the plaintiff or not. The plaintiff
knew that these funds
were used for the crèche. According to the affidavit of Marie
Nel, the plaintiff was shown receipts
relating to the purchase of a
freezer, camping cot, sheets, cot mattresses and toys for the crèche.
(d) According to the affidavit of Wilhelmina Karlien Marais, Mr Smit
had asked for an amount of R1 000,00 from these funds during
September to October 1999. No reason was given for him wanting these
funds, no receipt was issued and it was not repaid, resulting
in her
being unable to account therefore. According to the affidavit of
Captain Van Vuuren there were also instances of certain
other loans
having been made. The funds although destined for the chamber, or
then the crèche, do not appear, on the affidavits,
to have
been confined in their use for the benefit of the crèche, and
the person who assisted in creating this fund was
the plaintiff.
(e) Clearly it was represented to the various accused and to the
State that these payments were to be made to the chamber. In fact
that was not so and money represented to be destined for the chamber
were diverted and found there way to some officials who used
it for
the crèche and / or certain loans and the R1 000,00 given to
Mr Smit, to the prejudice, actual or potential of the
chamber and/or
the State. That established
prima facie
the
actus reus
for
at least fraud and / possibly theft.
(f) The only remaining issue for the reader of the docket to
determine was whether it could be inferred at a
prima facie
level that the plaintiff had the required
mens rea
that the
plaintiff intended a fraud, or theft of the money. Based on what was
the plaintiff's knowledge, set out above, that is
that payments were
received by Department of Justice employees of funds intended to be
for the benefit of the chamber, and that
funds destined for the
chamber and of which the chamber as beneficiary had not been notified
being diverted, the irresistible inference,
or at least the only
reasonable inference in the absence of a credible explanation to the
contrary was that the plaintiff knew
the funds were not reaching the
intended named beneficiary. His counter to that is that the officials
receipted these funds ‘for
Chamber of Commerce’. He had
in many instances called or caused these officials to be summoned to
his court to receipt the
funds. In referring accused persons to these
officials to pay the suspended portion, he represented to the accused
persons that
these officials represented or were authorized to
receive those payments on behalf of the chamber. It was thus crucial
that the
plaintiff explain the basis of any belief he might have held
that these administrative officials of the Department of Justice, who
should be devoting their time and attention to the business of the
Department of Justice, could on an ad hoc basis, during official
working time, represent the chamber (at least for the purpose of
receipting funds). The plaintiff was given the opportunity to
set out
in detail the basis of his defence and hence the basis for his
beliefs in this regard in the affidavit deposed to on the
10th
January 2000. He contented himself by simply recording:
"12
The entry in the court book which indicates beneficiary notified
relates to the fact that the monies were paid by the accused and
that
this would prevent duplication of work by the clerk of court 10 in
having to send letters of notification to Chamber of Commerce
informing them of such order.
13
The monies which were received by the said clerks was done on the
basis that it was convenient for the clerks to receive the monies
here as this was that I understood the arrangement was with Mr
Parsons of the Chamber of Commerce."
(g) No basis was advanced for such belief other than that it was for
"convenience". No factual basis was advanced which
could
have caused him to understand that that was the arrangement with Mr
Parsons or anyone else of the chamber. No person was
identified who
allegedly communicated to him any information on the basis of which
he could have formed that understanding or pointing
to his
bona
fides
for forming such belief;
(h) The plaintiff's allegation that he understood that the clerks
from the Department of Justice could receive the money for the
chamber, without detailing the basis for such belief, had an
appearance at best devoid of good faith and at worst indicating
possible
dishonesty. The explanation of the entry in the bench book
that the beneficiary had been notified so as to prevent ‘duplication
of work by the clerk of court 10 in having to send letters of
notification …’ is similarly incredulous. If the
prescribed
procedure required the clerk to send a written
notification, then that should be followed. If other beneficiaries
could have been
phoned for them to have representatives present in
court to receipt the money, then there was no explanation why this
could also
not be done in respect of the chamber. In my view the
terse explanations proffered by the plaintiff in his first affidavit
was
such as to leave considerable doubt as to whether his mere say so
that he understood that there was such an arrangement in place
with
the Chamber of Commerce, could be said to be reasonably possibly
true, or to be remotely such as to disturb the only inference
from
the facts making up the
actus reus
, that the plaintiff had
intended this result. Particularly, the reader of the docket would
have had to weigh up the mere say so
by the plaintiff that he
understood that this was the arrangement with Mr Parsons, against the
direct evidence of Mr Parsons contained
in his affidavit that no
funds had been received, no such an arrangement had been entered
into, and no notification had ever been
received by the chamber.
(i) If the plaintiff had disclosed the source of his belief or any
information and the nature of such information as had been
communicated to him by any such source in his initial affidavit,
provided the source was credible and the nature of what was
communicated
to him had the appearance of being reasonably possibly
true, the decision as to whether to prosecute would probably have
been different.
But this the plaintiff did not do. The first time he
identified Mr Smit, a senior magistrate, as the source of such
information
in the affidavit deposed to after he had been charged,
namely on the 23rd of February 2000. Certainly by the time
representations
were made to the Director of Public Prosecutions
during June 2000, the contents of this affidavit was brought to the
attention
of the State. If indeed Mr Smit had given these assurances
to the plaintiff and had made the statements attributed to him by the
plaintiff, being from a senior colleague, the plaintiff's reliance on
such statements might have negated the inference of intention
on his
part. However, even then the evidence of what Mr Smit had told him,
would be in direct conflict with what Mr Parsons says
in his
affidavit and if the latter's evidence was accepted, a strong case
would be made out against Mr Smit. But such a case would
also require
the evidence of the plaintiff against Mr Smit. Hence it is no
surprise to find in the letter from the Director of
Public
Prosecutions dated 6 June 2000 advising that the charges were being
withdrawn, that the plaintiff was to be used as a state
witness
against Mr Smit.
(j) Even to that extent, the plaintiff might have been fortunate to
have the charges against him withdrawn because if during any
trial
against Mr Smit, the plaintiff's evidence as to what Mr Smit on his
version allegedly told him was disbelieved, his complicity
would
continue to exist and hence also his status as potential accomplice.
The State might in those circumstances have been remiss,
on that
information, not to continue against both Mr Smit and the plaintiff,
leaving any conflict between them to be resolved and
decided in one
forum.
(k) Based on the aforesaid, I am not persuaded that the plaintiff has
shown that the defendant acted without reasonable and probable
cause
and with
malice in taking the decision to prosecute.
CONCLUSION
:
[13] It follows from the aforesaid that the plaintiff's claim must
fail.
[14] The defendant having been successful, the costs must follow the
result of the trial.
ORDER
:
The plaintiff's claims are dismissed with costs.
______________________________
DATE OF HEARING:
1/8/2008; 24, 25 & 26/8/11.
DATE OF DELIVERY: JANUARY 2012
COUNSEL FOR PLAINTIFF: ADV. L PILLAY SC with M BAHADUR
PLAINTIFFS ATTORNEYS: KESI MOODLEY
Ref.: KM/HC/M168
COUNSEL FOR DEFENDANT: ADV P MOKHATLA with ADV S J MTHIMUNYE
DEFENDANTS ATTORNEYS: STATE ATTORNEY
1
2009
(2) SACR 585
(SCA) at para [8].
2
The
plaintiff is at present a Regional Court Magistrate in Durban.
3
1996
(2) SACR 1
(SCA).
4
As
opposed to compensation orders in terms of s 300 of the CPA.
5
I
was not provided with any written judgement.
6
The
validity of these orders is not a primary or decisive issue in this
trial.