Sekhoto and Others v Minister of Justice and Constitutional Development and Others (1904/2004) [2006] ZAFSHC 152 (13 April 2006)

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[2006] ZAFSHC 152
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Sekhoto and Others v Minister of Justice and Constitutional Development and Others (1904/2004) [2006] ZAFSHC 152 (13 April 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 1904/2004
In
the case between:
SEKHOTO &
OTHERS
Plaintiffs
and
MINISTER OF JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
AND OTHERS
Defendants
_____________________________________________________
HEARD ON:
17 FEBRUARY 2006
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
13 APRIL 2006
_____________________________________________________
[1] On Friday the 26
th
July 2002 murder and armed robbery were committed on the premises of
Royal Hotel at Reitz. Following the incident a certain Buti
Fusi
Mofokeng was arrested as a suspect at Reitz on Tuesday the 13
th
August 2002. On the same day the 1
st
plaintiff was also arrested as a suspect in connection with the same
incident.
[2] Three days later, on
Friday the 16
th
August 2002, the police also arrested the 2
nd
plaintiff and the 3
rd
plaintiff as suspects in connection with the same crimes.
[3] The
said Mofokeng and the three plaintiffs were charged together. The
four accused appeared in court at Reitz on the 23
rd
Augusts 2002. Their case was provisionally remanded to the 29
th
August 2002 and then to the 3
rd
September 2002 for a formal bail application. Their application for
bail was opposed by the state. After hearing evidence, the
Bethlehem
Regional Court refused their bail applications. They were then
arraigned to appear in the high court on four charges namely:-

murder, robbery with aggravating circumstances, unlawful possession
of a fire arm and unlawful possession of ammunition.
[4] On Monday the 19
th
January 2004 they appeared in the Bethlehem circuit court for trial.
All the charges against accused number 2, accused number 3
and
accused number 4 in other words the 1
st
plaintiff, the 2
nd
plaintiff and the 3
rd
plaintiff were withdrawn. The trial proceeded against Buti Fusi
Mofokeng in other words accused number 1 alone. He was subsequently
convicted of murder, robbery with aggravating circumstances and
unlawful possession of a firearm. He was sentenced to life
imprisonment
in respect of murder, fifteen years imprisonment in
respect of the armed robbery and again one year imprisonment in
respect of unlawful
possession of a firearm.
[5] This civil action was
initiated on the 18
th
June 2004. The 1
st
plaintiff, a postman, the 2
nd
plaintiff, a businessman and the 3
rd
plaintiff a teacher are now suing the defendants for the combined sum
of R2 352 000,00 (R784 00,00 each). There are five defendants.
They
are being sued jointly and separately – the one paying the others
to be absolved.
[6] In their composite
summons the plaintiffs averred that they were arrested and detained
without reasonable or probable cause.
Their complaint is more fully
set out in paragraphs 12, 13, 15, 17, 18 and 21 of the particulars of
claim – vide page 9 – 13
of the record. These are the parameters
of the plaintiffs’ cause of action.
[7] In
their composite plea the defendants confessed the arrest and
detention of the plaintiffs but pleaded that such arrest and
detention
were lawful – vide page 19 – 28 of the record.
[8] The cause of action
in respect of unlawful arrest and detention originates from the
actio
iniuriarum.
Generally speaking, in the
action
iniuriarum
the plaintiff must prove the following essential elements: That the
defendant has committed some act; That the act complained of
was
wrongful; That the plaintiff has suffered loss as a result of such
wrongful act; That the resulting harm was not to remote
from the
wrongful act; and that the responsibility for the plaintiffs’ loss
was imputable to the defendants’ fault in the form
of
dolus
or
culpa
(vide
LEE
& HOMORE: THE SOUTH AFRICAN LAW OF OBLIGATIONS
,
2
ND
Edition, paragraph 539 on page 596.
[9] There are certain
peculiar features that impact on the requirements of the
action
iniuriarum
in the context of the arrest and detention. Two such special
features relate to wrongfulness and to intent. I briefly deal with
these special features below.
[10] As regards
wrongfulness, it has to be pointed out that the arrest of an
individual is
prima
facie
a
wrongful and an unlawful act. It deprives an individual concerned of
his or her civil liberty. Precisely the same can be said
about the
detention. It is, therefore, not really necessary for the plaintiff
to allege in the summons and to prove at the trial
the wrongfulness
or unlawfulness of the arrest or the detention. It is for the
defendant, who repudiates the liability imputed to
him or her, to
plead and to prove the lawfulness of the arrest and detention.
(
LOMBO
v AFRICAN NATIONAL CONGRESS
2002 (5) SA 668
SCA at paragraph 32;
MINISTER
VAN WET EN ORDE v MATSHOBA
1990 (1) SA 280
(AD) and
STAMBOLIE
v COMMISIONER OF POLICE
1990 (2) SA 369
ZSC.)
[11] Thus where the
police have arrested and detained a person, once the arrest and
detention are admitted, as in the instant case,
the onus of proving
the lawfulness of such restrictive police actions rests on the state
as the defendant. To discharge such onus
the defendant has to show
by means of evidence that there was reasonable and probable cause
which prompted the arrest and detention.
(
MAHAGA
v MINISTER OF SAFETY AND SECURITY
2001 (2) ALL SA 534
(Tk) and
MANQALAZA
v MEC SAFETY AND SECURITY ECP
2001 (3) ALL SA 255
(Tk).)
[12] Where the police
have effected an arrest pursuant to a valid warrant of arrest, such
an arrest is
prima
facie
lawful. The onus of proving the wrongfulness of an arrest in such a
situation rests upon the plaintiff. In
casu
the situation was different. No warrant authorising the arrest of
any of the plaintiff was first sought and obtained.
¡°
The
power of arrest without a warrant is a valuable means of protecting
the community. It should not be rendered impotent by judicial
encrustations not intended by the legislature. On the other hand the
law is jealous of the liberty of the subject and the police
in
exercising this power must be anxious to avoid mistaking the innocent
for the guilty.”
Per Van Dijkhorst J in
DUNCAN
v MINISTER OF LAW AND ORDER
1984 (3) SA 460
(TPD) at 466 D – E.
1984 (3) SA p460.
[13] An arrest without a
warrant is lawful, provided that at the time of the arrest, the
arresting police officer had a reasonable
belief for suspecting that
the plaintiff had committed and offence specified in schedule 1,
Criminal Procedure Act No. 51/1977.
Among others schedule one
offences include murder and robbery. See also section 40, 42, and
49, Act No. 51/1977. Here the onus
rests on the defendant to prove
the lawfulness of the arrest without a warrant. The defendant has to
show not only that the arresting
police officer suspected the
plaintiff of having committed an offence, but that the officer
reasonably suspected the plaintiff of
having committed a schedule 1
offence. (
MHAGA
v MINISTER OF SAFETY & SECURITY
2001 (2) ALL SA 534
(Tk) at 538 d – g per Zilwa AJ.)
[14] As regards
animus
iniuriandi,
the plaintiff does not have to allege and prove that in arresting and
detaining the plaintiff the defendant acted
cum
animo iniuriandi
.
The mere intention to arrest or detain suffices. An awareness or
appreciation of the unlawfulness of such act is not an essential
element. This is another special feature of the
actio
iniuriarum.
(
MINISTER
OF JUSTICE v HOFMEYER
[1993] ZASCA 40
;
1993 (3) SA 131
AD at 154 – 157.)
[15] Seeing that the
defendants admitted the arrest and the detention of the plaintiffs by
the government agents of the 5
th
defendant, Mr. Cassim, counsel for the defendants, submitted that the
defendants had to present their case first. Mr. Greyling,
counsel
for the plaintiffs, conceded. Having regarded to the pleadings it
appeared to me too that indeed the defendants had to begin
adducing
evidence. It must be borne in mind that the defendants had put up
the defence that the arresting police officers arrested
and detained
the plaintiff because they reasonably suspected that the plaintiff
had committed at least two offences specified in
schedule 1.
Therefore they pleaded, on the strength of this that there existed a
reasonably an probable cause for the arrest and
detention of all the
plaintiffs.
[16] Ndamini Daniel
Moshoaduba was the first of the two witnesses called by the
defendants. He testified that he was an inspector
in the South
African Police Service attached to the serious and violent crime unit
stationed at Bethlehem. He and his colleague
Buurman visited the
scene of the murder and robbery at Reitz. They arrived on the scene
at 22h30 on the 26
th
July 2002. On 13
th
August 2002 an informer contacted him in connection with the Royal
Hotel episode. Acting on the informer’s tip-off, he and his
colleague, Inspector Maseko travelled from Bethlehem to Reitz to
question the suspect.
[17] They found the
suspect Buti Fusi Mofokeng at 1300 Petsana. They told him who they
were and what they were up to. When Mofokeng
heard who they were and
what the nature of their business was, he spontaneously blurted out
that the 2
nd
plaintiff, Makhoba did the killing. He informed Mofokeng of his
constitutional rights and then arrested him.
[18] Soon after
Mofokeng’s arrest, he, Inspector Moshoaduba hurriedly drove away
from Reitz to Phuthaditjhaba to apprehend an illusive
suspect in an
unrelated case. He left his colleague, Inspector Maseko behind. He
later gathered from Inspector Maseko that the
1
st
plaintiff, Sekhoto, was also arrested on the same day, the 13
th
August 2002, on the information furnished by the police informer and
Mofokeng as well.
[19] The police
investigation continued. On the 16
th
August 2002 three days after the apprehension of the 1
st
plaintiff, the 2
nd
plaintiff Makhoba and the 3
rd
plaintiff Lesalaisa were also arrested. Mofokeng and the three
plaintiffs were detained until the 19
th
January 2004, the first day of the trial. The charges against the
plaintiffs were withdrawn. The trial against their co-accused,
Mofokeng proceeded. He was convicted and sentenced. Mofokeng has
since died in prison. During cross-examination he denied the
suggestion that he gave false evidence, knowing it to be false, in
the Bethlehem Regional Court so that the plaintiff could be detained
further.
[20] Patrick Maseko was
called as the second witness for the defendants. His testimony was
substantially the same as that of Inspector
Mashoaduba in a number of
respects. He testified that he was an inspector by rank, attached to
the serious and violent crime unit
and stationed at Bethlehem Police
Station. From Mofokeng’s residence he proceeded to another place
still at Petsana in Reitz where
he arrested the 1
st
plaintiff.
[21] The 1
st
plaintiff volunteered to make a sworn statement. He confirmed that
that he took the statement on the 21
st
August 2002 being the date that appears on the statement. He read
the statement into the record – vide pages 61 – 64 of the
exhibit
C. In the statement the 1
st
plaintiff stated how the plaintiffs participated in the Royal Hotel
murder and armed robbery. During cross-examination he denied
the
suggestion that he took the statement two days after the arrest of
the 1
st
plaintiff. He also denied that the 1
st
plaintiff was assaulted to make the statement. The defendant’s
case was then provisionally closed.
[22] Slabbert was called
as the witness for the plaintiff. He testified that he practised law
as an advocate. He was a member of
the Durban Bar. He represented
the plaintiffs during their bail application in the Bethlehem
Regional Court. He testified that
Moshoaduba opposed the bail
application of the plaintiffs. In doing so, Moshoaduba gave false
evidence. He falsely told the magistrate
that the state had an
independent eye witness who implicated the accused (in other words
Mofokeng and the three plaintiffs) in the
Royal Hotel episode. By
doing so, Moshoaduba misled the magistrate. On the strength of such
untruthful police testimony the magistrate
refused to let the
plaintiffs out on bail.
[23] The plaintiffs were
committed for trial in the high court. The three plaintiffs together
with their co-accused, Mofokeng were
incarcerated further until the
19
th
January 2004 after the magistrate had refused their application to be
released on bail. They appeared in the Bethlehem Circuit Court
on
the 19
th
January 2004 for trial. They were still legally represented by
Slabbert. According to him, on the 19
th
January 2004 the state did not have any eye witness. The
representative of the 3
rd
respondent approached him with the proposal that all the charges
against the first plaintiff would be dropped provided he became
a
state witness against his co-accused. Slabbert testified further
that the 1st plaintiff rejected the proposal by the counsel for
the
state. Since the 1st plaintiff was not prepared to testify against
his 3 co-accused, the charges against him, the 2
nd
plaintiff and the 3
rd
plaintiff were withdrawn. The case of the plaintiffs was then
closed. The defendants also finally closed their case without any
further evidence.
[24] I deal with the
issue of unlawful arrest first. The allegations of the plaintiff
relating to this issue were contained in paragraphs
9 – 13 of the
summons. They alleged that they were accused of murder, arrested,
detained and prosecuted by the defendants. To
start with I shall
confine myself to the facts pertaining to the arrest. I shall deal
with the facts pertaining to the detention
and prosecution later.
The plaintiffs alleged that the police actions in effecting their
arrest in August 2002 amounted to unlawful
arrest.
[25] The defendants’
plea concerning the issue of unlawful arrest was contained in
paragraphs 3 – 6. They denied the plaintiffs
allegations to the
extent that such allegations were inconsistent with theirs. They
admitted the arrest of the plaintiff in August
2002 but denied the
claim that such police actions amounted to unlawful arrest. They
averred that the arrest was lawful because
the police acted with
reasonable and probable cause in effecting the arrest.
[26] I heard evidence
tendered on behalf of the defendants by two police officers,
Moshoaduba and Maseko. According to their uncontested
evidence, a
hotelier was murdered and certain guests robbed at the Royal Hotel of
Reitz in the evening of Friday the 26
th
July 2002. The police witness received information from an
undercover agent that a certain Buti Fusi Mofokeng and his criminal
gang
were involved. The information led to the arrest of Mofokeng on
13
th
August 2002. His arrest led to the immediate arrest of Mkhulu John
Sekhoto, the 1
st
plaintiff on the same day as a suspect in the said criminal activity.
They were arrested without a warrant.
[27] The 1
st
plaintiff implicated himself together with the 2
nd
plaintiff and the 3
rd
plaintiff as having participated in the said criminal activity.
Three days later, on the 16
th
August 2002 to be precise, the 2
nd
plaintiff, Mthikelei Windvoel Makhoba and the 3
rd
plaintiff Tshepo Robert Lesalaisa were also arrested in connection
with the same criminal activity. They too were arrested without
a
warrant. Mofokeng and the three plaintiffs were arraigned in the
Bethlehem Circuit Court of the Free State High Court on murder,
armed
robbery, unlawful possession of firearm and unlawful possession of
ammunition. Mofokeng was found guilty and sentenced to
life
imprisonment. On 19
th
January 2004 all the charges against the 1
st
plaintiff, the 2
nd
plaintiff and the 3
rd
plaintiff were withdrawn. These then were the proven facts.
[28] None of the
plaintiffs testified. Their sole witness, Advocate Slabbert readily
conceded that the arrest of every plaintiff
was justified and lawful.
On the facts, the concession was correctly made. In the heads of
argument and during argument, Mr. Greyling
advanced no submission in
this regard. Therefore, this first issue of unlawful arrest is no
more an issue. Paragraph 12 and 13
of the summons are not supported
by any evidence before me. In the light of all this, my finding is
that the defendants have proven
that the arrests of the plaintiffs
were lawful. There was reasonable and probable cause to justify such
arrests without warrants
of arrest.
(
MHAGA
v MINISTER OF SAFETY AND SECURITY
2001 (2) ALL SA 534
(Tk) at 538 e – f per Zilwa AJ.) This leg of
the action has to fail.
[29] The
second issue is the unlawful detention. Here the factual matrix
dictates that a distinction be made between two distinct
phases,
namely: The detention prior to the bail application and detention
period subsequent to the bail application.
[30] I deal first with
the detention period before the bail application. The issue is
traversed in paragraph 10, 11, 12, 13 and 4
of the summons. The
synopsis of the plaintiff’s version is that the 1
st
plaintiff was detained from the 13
th
August 2002 and that the 2
nd
and 3
rd
plaintiffs were detained from the 16
th
Augusts 2002 by the employees of the 5
th
defendant. The plaintiffs aver that they were detained against their
will and by threat of force in the police cells at Reitz and
Bethlehem before they appeared in the Reitz District Court in
connection with their bail application. But their bail application
was not entertained by the Reitz District Court. Instead their case
was transferred to the Bethlehem Regional Court. While they
were in
detention, the police accused them of murder committed at Royal Hotel
in Reitz on Friday the 26
th
July 2002. The accusation was devoid of any truth. It was made with
the sinister intention of instigating further detention of
the
innocent plaintiffs. So they claimed.
[31] On
the strength of such false accusation, the plaintiffs complained,
they were further detained until the 3
rd
September 2002. They launched an application in terms of section 60
Act No. 51 of 1977 on that day to be released on bail. Their
application was opposed by the prosecuting authority in other words
the 2
nd
,
the 3
rd
,
and the 4
th
defendants. The bail proceedings, they alleged, came to an end on
the 14
th
October 2002. Their bail application was unsuccessful. It is the
case of the plaintiffs that their detention until then was unlawful.
[32] In their plea the
defendants repudiated liability based on the unlawful detention of
the plaintiff. They pleaded that the detention
of the plaintiffs was
for a good cause because: they were incriminated in the criminal
activities; the 1
st
plaintiff was implicated by Mofokeng as a participative member of the
criminal gang which robbed and killed at the Royal Hotel;
the 1
st
plaintiff admitted that he actively participated in the criminal
activity; the 1
st
plaintiff in turn implicated the 2
nd
and the 3
rd
plaintiffs in the criminal activity as active members of the criminal
gang and the criminal activity in respect of which Mofokeng
and the
plaintiff stood accused and subsequently arraigned was very grave.
[33] The allegations by
the plaintiffs to the effect that they were detained against their
will and by threat of force, has to be
understood to mean that their
detention was unlawful; that they were falsely accused of murder by
the police; that the false accusation
was a sinister motive to
prolong their unwarranted detention; that their bail application was
punitively and deliberately transferred
in order to delay their
release from detention – all these remained factual allegations and
nothing more. Virtually no attempt
was made by any of the plaintiffs
to tender evidentiary proof to beef up these allegations. Their
decision not to give evidence
as one would normally expect from the
plaintiff created the negative impression that they did not believe
in their own cause of action.
[34] On the contrary the
defendants’ plea as regards the detention period prior to the bail
application was backed up by the evidence
of two witnesses. The
testimonies of the two were in harmony with each other and
substantially consistent with the defendants’
case as pleaded.
[35] In the premises and
on the proven facts before me I have come to the conclusion that the
detention of the plaintiffs by the police
was indeed lawful. Their
detention was, in my view, for reasonable and probable cause. I
dismiss the allegations of the plaintiffs
as contained in the
aforesaid paragraphs of their summons insofar as they are at variance
with what was pleaded and proven by the
defendants.
Mr.
Cassim submitted that if the arrest was lawful the detention which
flowed from such arrest was also justified and therefore lawful.
In
my view the submission was correct. It is a matter of logic.
Therefore the submission relating to the unlawfulness of the initial
detention of the plaintiffs as contended for by Mr. Greyling is
flawed. It is not supported by any evidence.
[36] As regards the
continued detentions of the plaintiffs, we have to turn to paragraphs
14, 15, 16, 17, 17 and 19 of the particulars
of claim annexed to the
summons. The plaintiffs averred that their bail application was
heard in the Bethlehem Regional Court from
the 3
rd
September 2002; that their application was opposed by the
prosecuting authorities herein represented by the 2
nd
,
the 3
rd
and 4
th
defendants; that such opposition was a malicious ploy designed by
the defendants to prolong their detention; that the opposition
was
as such unnecessary since it was grounded on false evidence; that
the defendants were prompted to act in this punitive manner
by an
alterior motive to prolong the continued detention of the plaintiffs
without a reasonable or probable cause; that on the 14
th
October 2002 the regional court magistrate refused their application
to be released on bail on the strength of the false evidence
placed
before him by the defendants and authorised their continued
detention.
[37] In response to the
plaintiffs claim the defendants admitted that the plaintiffs applied
for their release on bail and that the
defendants opposed such an
application. But they averred that on behalf of the state the 2
nd
,
the 3
rd
and 4
th
defendants were entitled to oppose the bail application particularly
because of the seriousness of the allegations of criminal conduct
imputed to the plaintiffs. They denied that the bail opposition was
malicious and unnecessary as alleged. They reiterated that
since the
plaintiffs were implicated in the robbery and murder at the Royal
Hotel the defendants’ opposition to the release of
the plaintiffs
on bail was reasonable and justified. They specifically denied that
they presented false evidence to the regional
court magistrate which
evidence led to the refusal of the plaintiffs bail applications.
[38] On behalf of the
plaintiffs, Mr. Greyling contented that the defendants acting with
malicious intent misled the regional court
in order to secure the
continued detention of the plaintiffs. Therefore he submitted that
the continued detention of the plaintiffs
was unlawful –
GROENEWALD
v MINISTER OF JUSTICE
1973 (3) SA 877
AD.
[39] On
behalf of the defendant, Mr Cassim contented that the defendants
acted with no malice and that they placed no false evidence
before
the regional court in order to have the continued detention of the
plaintiffs authorised. He submitted that the regional
court weighed
up all the facts and came to the conclusion that it was in the
interest of the administration of justice that the continued
detention of the plaintiffs be authorised.
[40] The
plaintiffs’ allegations concerning the bail proceedings were
contained in paragraph 16 of the particulars of claim. The
defendants’ response thereto was contained in paragraph 9 of the
defendants’ plea. The defendants pertinently denied each and
every
allegation made by the plaintiffs in this regard. It must be borne
in mind that the plaintiffs did not give evidence. At
the hearing
their sole witness was Advocate Slabbert, the man who represented
them during the bail application. He did not cover
all the important
aspects of the bail proceedings. For instance there is no evidence
before me as to when the plaintiffs applied
for bail and when the
regional magistrate refused to let them out on bail. The allegations
made in the particulars of claim in this
regard were not supported by
any evidence.
[41] The cornerstone of
the plaintiff’s case was that the regional magistrate dismissed
their bail application because he was falsely
told that the police
had a sworn statement by an eye-witness who implicated the
plaintiffs. Mr. Greyling argued that the regional
magistrate in his
judgement during the bail application proceedings heavily relied on
the evidence relating to an eye-witness –
vide page 342 exhibit C.
¡°
Die
Hof bevind dat die Staat met die eerste oogopslag oor ‘n sterk saak
beskik. Afgesien van sekere uitwysings wat gemaak is en
ook ‘n
bewysstuk wat gevind is as gevolg van ‘n mededeling van een van die
beskuldigdes, is daar ook die getuienis van ‘n ooggetuie
wat die
beskuldigdes positief sal verbind met die pleging van die misdryf.
Die Hof moet op hierdie stadium aanvaar dat alles reëlmatig
sal
verloop en dat hierdie getuienis uiteindelik voor die Verhoorhof sal
beland.”
[42] Besides Exhibit C
there was no oral evidence in support of the plaintiffs’ case on
this aspect. The regional magistrate was
not called. There is
therefore no evidence whatsoever that the regional magistrate would
have granted the bail application had there
been no mention of an
independent witness who would testify against the accused. The
regional magistrate did not say so in his judgement.
The contention
of the plaintiffs in this connection was therefore speculative. He
might well have granted bail. However he might
still have refused
bail. We can only speculate because he did not testify in these
proceedings. Therefore we shall never know for
certain the whole
story as to why he exercises his discretion as he did. It is clear,
however, from the quotation that the alleged
eye-witness was but one
of the factors and not the one and only factor which he took into
account.
[43] It must be borne in
mind that the 1
st
plaintiff had made a sworn statement implicating Mofokeng and the 2
nd
plaintiff in the murder and the 3
rd
plaintiff and himself in the robbery. Moshoaduba testified that
because of this he genuinely believed that the 1
st
plaintiff would become a state witness in due course. The effect
thereof was that the 1
st
plaintiff would testify against the other plaintiffs and Mofokeng.
This testimony was reasonably plausible in the circumstances.
The
prospect might well have been diminished by the 1
st
plaintiff’s testimony during the bail application but it remained a
reasonable possibility nonetheless. Moshoaduba’s explanation
was
that he got the impression that the 1
st
plaintiff deviated from his sworn statement merely to appease his
co-accused and that he thought he would sing a different tune come
the trial time.
[44] The aforegoing
optimism of Moshoaduba must be considered against the backdrop that
the 1
st
plaintiff had intimated the willingness to make certain pointing out.
Besides their co-accused Mofokeng had not only implicating
the
plaintiffs but had also placed himself on the scene as did the 1
st
plaintiff. Moreover, Mofokeng like the 1
st
plaintiff had also intimated the willingness to point certain things
out. He did so. Looking back now, of course we now know that
he was
convicted in the end. Lastly, there was also a chance, however slim,
of the police informer getting the courage of his convictions
and
giving evidence against one or more or all the plaintiffs at the
trial.
[45] In
the light of all the aforegoing considerations I am of the opinion
that the plaintiffs have not proven that the defendants
were actuated
by sheer malice in opposing the bail application. On the proven
facts the continued detention as authorised by the
magistrate was
prompted by a reasonable and probable cause. Therefore such
detention was justified and lawful. The continued detention
of the
plaintiffs from the moment the regional magistrate pronounced his
verdict upon their bail application until the charges against
them
were dropped on the 19
th
January 2004 could not have been unlawful, as it was argued on behalf
of the plaintiffs because such detention was authorised, as
it were,
by a court of law, whose order was never appealed against. The
failure or omission of the plaintiffs to appeal taken together
with
the factors mentioned in paragraph 44 above militates against the
contention that no reasonable and probable cause existed to
justify
such detention. It follows therefore the plaintiff must fail in
respect of this leg of their claim as well.
[46] I turn now to the
alleged issue of malicious prosecution of the plaintiffs by the
defendants. The issue was alleged in various
paragraphs of the
particulars of claim such as paragraphs, 15.3, 15.4, 17, 18, 19, 20,
21, 22, 23 and 24. Annexure A to the summons
showed that the 3
rd
defendant took a decision on the 29
th
May 2003 to have the plaintiffs arraigned in the high court on murder
and robbery charges. The decision was conveyed to the plaintiffs
and
their co-accused in the Bethlehem Regional Court seemingly on the
17
th
June 2003 and not 17
th
April 2003 as stated in the summons. On the 4
th
August 2003 the plaintiffs appeared in the high court for the first
time. Their case was then remanded to the 19
th
January 2004 for trial in the Bethlehem Circuit Court. On that day
all the charges against the plaintiffs were withdrawn on account
of
lack of evidence. However, their co-accused Mofokeng was convicted
and sentenced to life imprisonment. These then are, broadly
speaking, the undisputed facts according to the testimony of Slabbert
for the plaintiffs and Moshoaduba and Maseko for the defendants.
[47] The real bone of
contention between the plaintiffs and the defendants was whether the
criminal proceedings which the defendants
instituted were actuated by
an improper or alterior motive which rendered them malicious
prosecution or whether such criminal proceedings
were instituted in
good faith based on an honest and genuine belief founded on
reasonable ground that the criminal prosecution of
the plaintiffs as
the suspects was justified. The concept of reasonable and probable
cause in this delictual context connotes both
an objective element
and subjective element of the inquiry. (
PRINSLOO
v NEWMAN
1975 (1) SA 481
AD and
VAN
DER MERWE v STRYDOM
1967 (3) SA 460
AD.)
[48] The cause of action
for a delictual claim of damages caused by malicious prosecution is
the
actio
iniuriarum
.
I have said enough about the requirements of this delictual remedy
earlier in this judgement. Suffice to say that in this delictual
claim the plaintiff bears the onus in respect of all the elements of
the delict – vide
GROENEWALD
v MINISTER OF JUSTICE
1973 (2) SA 480
(O).
[49] The author Harms:
Amblers Precedents of Pleadings (April 2003) page 238 – 239 submits
that in addition to proving wilful intent,
a plaintiff is well
advised to allege and prove not only
aminus
injuriandi
but
also motive on the part of the defendant –
STAMBOLI
v COMMISSIONER OF POLICE
1990 (2) SA 369
(ZSC) and
THOMPSON
v MINISTER OF POLICE
1971 (1) SA 371
(ECD).
[50] In the instant case
the plaintiffs have led no evidence whatsoever to show that the
defendants instituted the criminal proceedings
in question without
any reasonable and probable cause. Similarly the plaintiffs have led
no tangible evidence to prove on a balance
of probability that the
defendants acted maliciously in prosecuting them.
[51] The defendants’
unchallenged evidence before me was narrated by Moshoaduba in the
first instance. His version was that acting
on a tip-off from an
informer Mofokeng, was arrested. The informer claimed to have
witnessed Mofokeng and the three plaintiffs flee
from the scene of
the crime. When Mofokeng was confronted by the police he
spontaneously blurted out. He volunteered to let the
police know
that he was involved. He went on to implicate the 1
st
plaintiff. The spontaneous disclosures by Mofokeng verified the
informer’s information. Mofokeng later made a sworn statement
and
did the pointing out. He was convicted in the end. The 1
st
plaintiff initially wanted to point out but decided to not to do so
because he was threatened by a certain member of the public on
the
scene of the crime.
[52] The further
uncontested evidence of the defendants was narrated by Maseko in the
second place. The version of this witness was
that the 1
st
plaintiff made a voluntary statement to him. In the statement the
1
st
plaintiff implicated himself and three others including the 3
rd
plaintiff in the commission of the robbery. Apart from that the 1
st
plaintiff also implicated the 2
nd
plaintiff together with Mofokeng in the commission of the murder.
[53] The crux of the
plaintiffs case was that the defendants knew very well at the time
they took a decision to prosecute the plaintiff
on the 29
th
May 2003, to be precise, that no admissible evidence existed
implicating the plaintiffs in the aforesaid crimes. Based on this,
Mr. Greyling submitted that in the absence of admissible evidence,
there was no reasonable and probable cause to justify the decision
of
the 3
rd
defendant to arraign the plaintiffs for trial. Counsel for the
plaintiff urged me to infer from this and the eventual withdrawal
of
the charges against the plaintiffs that their prosecution was
actuated by malice.
[54] In paragraph 48 I
was at pains to show the uncontested highlights of the defendants’
case. Objective assessment of those incriminating
aspects would
probably have led any reasonable person in the position of the third
defendant to the conclusion that there existed
a genuine and honest
believe founded on reasonable grounds that criminal prosecution of
the plaintiff was justified. The contention
of counsel for the
plaintiffs that no admissible evidence was available to justify the
decision to prosecute is flawed. That has
never been the test. The
test, as we have seen, is whether reasonable and probable cause
exists to justify the criminal prosecution.
In a case where all the
suspects, as in the in instant case, were implicated by one or more
of their own kind, it can hardly be
contended that no reasonable and
probable cause existed to justify the criminal prosecution. That is
the one reason. But there
is another why the contention of the
plaintiff is flawed. The arrest of the plaintiff was triggered of by
the vital information
provided by an informer. Such information was
confirmed by at least two suspects including the 1
st
plaintiff.
[55] It is so that the
statements of the two suspects, accused number 1 and accused number
2, in other words Mofokeng and Sekhoto,
the 1
st
plaintiff, could not be used as evidence against the 2
nd
plaintiff and the 3
rd
plaintiff. But such statements constituted admissible evidence which
could be used against Mofokeng and the 1
st
plaintiff themselves provided certain legal requirements were met.
Therefore there was good cause for the criminal prosecution of
at
least those two gentlemen. As regards to the 2
nd
plaintiff and the 3
rd
plaintiff it cannot be said that their criminal prosecution was
engendered by improper alterior motives. They were implicated by
their co-accused rightly or wrongly. Whether such implicating
evidence was admissible or inadmissible in a court of law was not
the
decisive consideration to the enquiry as to whether to prosecute or
not to prosecute. The initially inadmissible evidence of
their
co-accused could subsequently become admissible. For instance the
charges against the 1
st
plaintiff could be dropped at the commencement of the trial, the 1
st
plaintiff offered conditional indemnity and used as a state witness
against the 2
nd
plaintiff and the 3
rd
plaintiff if he accepted the offer – section 204, Act No. 51 of
1977. According to Slabbert this is precisely what counsel for
the
state tried to do but failed on the 19 January 2004. In criminal
cases it is not unusual for one accused to turn against his
co-accused when the prospects of a long prison term looms on the
horizon for him.
[56] The third reason why
the contention of the plaintiff is flawed is this: It was
uncontested that the primary source of the vital
information which
led to the arrest of the plaintiffs and their co-accused was the
unnamed police informer. Although the informer
preferred to remain
an undercover agent he remained a potential and possible state
witness. Nothing but his fear precluded him from
testifying at the
trial. His information was available at all times. Between the 29
th
May 2003 and 19
th
January 2004 both dates inclusive, in theory the informer could have
overcome his fear. On the 19
th
January 2004 he could have taken his stand in the witness-box as a
state witness. His evidence against all the four accused would
have
been perfectly admissible. About that potential evidence there was
nothing inadmissible as on the 29
th
May 2003 when the decision to prosecute was taken. Therefore the
edifice of the entire argument about the lack of admissible evidence
collapses. I can find no evidence to support the plaintiffs’
version that their criminal prosecution was actuated by malice or
any
other wrongdoing on the part of the defendants as alleged in the
paragraphs of their summonses which I have previously specified.
[57] Instead of giving
oral evidence in support of their allegations that the defendants had
subjected them to malicious prosecution
in addition to unlawful
detention, the plaintiffs relied on the court record of their
criminal proceedings in the Bethlehem Regional
Court. Such record
was handed in as exhibit C. Mr. Greyling argued that the record was
admissible evidence but Mr. Cassim argued
that it was not.
[58] The
authors Zeffertt
et
al
:
The
South African Law of Evidence
(2003)
p. 400 remarked as follows:
¡°
A
record of a witness’s evidence in earlier judicial proceedings is
ordinarily hearsay at common law, but there are a number of
exceptional cases in which such evidence can be tendered to prove the
truth of the facts which the witness has stated. It is usual
for the
record of an inquest or criminal trial to be made an exhibit at a
subsequent civil action, but at common law its evidential
value is
only to prove that the witnesses said what they are recorded to have
said. Unless the parties consent, it cannot be used
as evidence of
the facts stated.”
The mere handing in of
the criminal record in these civil proceedings by the plaintiffs
without calling the witnesses concerned and
without first seeking and
obtaining the consent of the defendants, did not have the real
evidential value of proving the truth of
what was contained in the
record. The minutes of the rule 37 conference showed that no attempt
was made by the plaintiffs to obtain
the admission of the criminal
record by the defendants. Such criminal record contains opinion
evidence of the regional court which
according to our law is not
admissible in these subsequent civil proceedings –
vide
Zeffertt
supra
p. 315 and the authorities cited there.
[59] In the light of all
those considerations I am persuaded that the plaintiffs must fail in
their delictual claim as a whole. The
objective facts support the
contention of counsel for the defendants that at all times material
to this dispute the defendants genuinely
and honestly believed that
they had a reasonable and probable cause to arrest, to detain and to
prosecute. As I see things here
such cause was justified and
therefore lawful throughout the entire course of the criminal
proceedings. The claim of the plaintiffs
has to be dismissed.
[60] The only witness who
testified for the plaintiffs was their advocate in the criminal case.
His evidence was that the instructing
attorney in the criminal case
had only paid him R48 000 of the agreed fee of R72 000. He proffered
evidence that he was suing the
instructing attorney for the balance
of R24 000. As regards this civil case, he stated that he had
concluded contingency agreements
with each of the plaintiffs. The
essence of such agreement was that the payment of his fees for the
work he had done in connection
with this civil case including the
preparatory work and the conduct of the proceedings was dependent
upon the plaintiffs succeeding
in their civil claim.
[61] Slabbert was
certainly an interested party. He appeared to be the real third
force in this case. On the probabilities the action
was the
brainchild of Slabbert. His driving motivation was obviously the
expected windfall of money. The decision of the plaintiffs
not to
give evidence was therefore not surprising. They were apparently a
small fry in the pond. Their witness was seemingly a
big fish.
Slabbert’s evidence was largely unhelpful and unsatisfactory. For
instance, he failed to give a satisfactory answer
as to why the
plaintiffs did not sue for general damages seeing that it was
suggested to the defendants’ witnesses that the plaintiffs
were
severely assaulted. Moshoaduba and Maseko impressed me as witnesses.
Their versions were satisfactory and trustworthy in all
material
respects.
[62] Notwithstanding the
strange features of the plaintiffs’ case, I am not persuaded that
this is a case where a punitive order
of cost should be made in
favour of the defendants against the plaintiffs. I am inclined to
suspect that powerful forces were at
play behind the scenes which
drove them to take this line of delictual action – a route which
they would probably not have followed
on their own free will.
However, paying the costs of the defendants they must. The primary
rule of costs must apply.
[63] Accordingly I make
the following order:
The combined action in
dismissed;
The plaintiffs are
directed to pay the costs of the action jointly and severally the
one paying the others to be absolved;
The costs due to the
defendants shall include the costs occasioned by the employment of
two counsels.
______________
M.H. RAMPAI, J
On
behalf of the plaintiffs: Adv. P. Greyling
Instructed
by:
Van
Wyk & Preller
BLOEMFONTEIN
On
behalf of the defendants: Adv. N. Cassim SC
with
him
Adv.
B. S. Mene
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/em