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[2024] ZAFSHC 168
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Moletsane v Minister of Police and Another (1058/2021) [2024] ZAFSHC 168 (30 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 1058/2021
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THATO
MOLETSANE
Plaintiff
and
MINISTER
OF
POLICE
1
st
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
2nd Defendant
BEFORE:
CHESIWE J
HEARD
ON:
01 DECEMBER 2023
DELIVERED
ON:
30 MAY 2024
[1]
Plaintiff instituted a claim for damages against the Minister of
Police (herein after
referred to as the First Defendant) and the
National Director of Public Prosecutions (herein after referred to as
the Second Defendant)
for the alleged unlawful arrest and detention.
The arrest took place on 11 July 2019 in Kroonstad and Plaintiff
alleges that his
arrest and subsequent detention were wrongful and
unlawful.
Background
[2]
Plaintiff instituted action premised upon the following: causes of
action: Claim 1
- Unlawful arrest and detention in the amount of R1
500 000,00 (one million five hundred thousand rand); Claim 2 -
Malicious proceedings
(Prosecution) in the amount of R500 000,00
(five hundred thousand rand).
[3]
Plaintiff filed a Rule 28 (10) to amend the particulars of claim as
follows:
"Ad paragraph 5.2
deleting 30 of July 2019 and replacing it with 15 July 2019.
Ad paragraph 5.3 deleting
30 of July 2019 and replacing it with 22 July 2019.
Ad paragraph 11
deleting R600 000,00 and replacing it with R1;50 000,00.
Ad paragraph 12.2
deleting 30 July 2019 and replacing it with 22 July 2019.
Ad paragraph 12.3
deleting 30 July 2019 and replacing it with 15 July 2019.
Ad paragraph 13 deleting
R300 000,00 and replacing it with R500 000,00.
Ad prayers claim 1
deleting R600 000,00 and replacing it with R1 500 000,00.
Ad prayers claim 2
deleting R300 000,00 and replacing it with R500 000,00."
[4]
The First and Second Defendants raised a special plea that Plaintiff
failed to comply
with Section 3(4) of the
Institution
of Legal Proceedings Against Certain Organs of State.
[1]
[5]
Plaintiff filed an application for condonation for the late filing of
the Statutory
Notice. The Court granted the condonation on 24 March
2022. The Defendants then abandoned the application (Special Plea)
after
the Court had granted the condonation.
[6]
The parties in terms of the Pre-Trial conference, had agreed that
there will not be
separation of issues in terms of Rule 33(4) of the
Uniform Rules of Court and that the merits and quantum will be
adjudicated simultaneously.
[7]
The issue for determination before this Court is, whether the
Plaintiffs arrest and
detention were unlawfully from 11 July 2019 to
12 October 2020; whether the prosecution was unlawful, malicious and
negligent;
whether the Defendants are liable in respect of both
Claims 1 and 2 and the appropriate quantum of damages suffered.
[8]
Before commencement of trial, parties agreed to the admissibility of
the documents
contained in the docket pertaining to the criminal
investigation.
[2]
[9]
Plaintiff and one witness testified in his case, with the First
Defendant calling
two (2) witnesses and Second Defendant also calling
two (2) witnesses.
Evidence
[10]
Plaintiff testified as follows: That he is 29 years of age. On 11
July 2019 when he was arrested, he was asleep when
the police came to
his house in the company of Neo (Plaintiff's friend). The police
asked if he knew anything about a stolen cellphone.
He informed the
police about Skoloza and Senawana (Plaintiff's friends) who had
approached him for a buyer of cellphones. Plaintiff
then took the
police to Pule's house.
[11]
Plaintiff told the police about a person named Steve, a Nigerian
national who bought the cellphone. Plaintiff informed the
police that
he never handled the cellphone and only heard about a stolen
cellphone four days after it was stolen. He was taken
to the police
station and put in the charge office and later was placed in a
holding cell, but was not charged for the stolen cellphone.
Plaintiff
said at the police station, he met the Complainant and asked of the
Complainant to drop the charges as he did not take
the cellphone.
However, the Complainant told the Plaintiff that she only wants the
cellphone and did not want to press charges.
[12]
On behalf of the Defendants, Adv. Ferreira under cross-examination,
Plaintiff said on the night of 11 July 2019, he was at
his home when
four police officers came to ask him about Pule. Plaintiff showed the
police officers where Pule resides and was
arrested after showing the
officers where pule resides. Plaintiff denied taking the
Complainant's cellphone or selling it. Plaintiff
was extensively
cross examined.
[13]
Ms. Mosa Marvellous Tsoeu (the Complainant), was called as the
Plaintiff's witness. She testified as follows: She reported
the
incident to the police on 4 July 2019. She confirmed that she did not
write a statement as it was written by the police and
it was read
back to her before signing it. She was able to identify two people
she saw on the day she was robbed of her cellphone,
with Neo being
one of the people she identified. She went with the police to Neo's
house. Thereafter, Neo was taken by the police
and she was taken
home.
[14]
On 13 July 2019, Mosa was collected by the police and taken to the
police station where she found Thate (Plaintiff). Plaintiff
asked her
to withdraw the charges as he was not involved in the robbery of the
cellphone, but only assisted in getting a buyer
for the cellphone.
Plaintiff apologized to her, but could not speak further as Captain
Mokhele came in and told her to stop talking
to the Plaintiff.
[15]
Mosa explained that the statement was typed on her laptop by Mokhele
whereupon Mokhele saved the statement on a USB stick.
She could not
recall when she signed the statement. Mosa said Plaintiff was not
present when she was robbed of her cellphone. She
did not see the
Plaintiff on the day of the incident, nor was the Plaintiff
photographed among the photos that were shown to her
by the police.
She saw the Plaintiff for the first time at the police station. She
further explained that, during trial the prosecutor
did not consult
with her and that Constable Thakeng and Captain Mokhele were not at
court.
[16]
Under cross examination, Mosa testified that the Plaintiff was
discharged after she told the
Trial Court that the Plaintiff was not
present on the day of her robbery, further that she had been
informing the police that the
Plaintiff was not present on the day of
the incident. She said the police told her that the Plaintiff was
present however, she
never said Plaintiff was present. That was the
Plaintiff's evidence.
[17]
The First Defendant's witnesses were Captain Mokhele and Constable
Thakeng with the Second Defendant's
witness being Prosecutor Noge.
Mokhele was the investigating officer and testified as follows: He
received a complaint on 4 July
2019 of a cellphone robbery having
taken place. He went with the Complainant to where the incident
occurred. He said the Complai11ant
told him that it was four men that
robbed her of her cellphone at knife point. On 5 July 2019,
Complainant called Mokhele about
information she received about the
suspects' photos being on someone else's cellphone. Mokhele went to
look at these photos and
it was photos of two male persons. Mokhele
received further information after having gone to look for these two
male suspects.
The Plaintiff became the third suspect purported to
have been part of the robbery. Mokhele then went to look for these
suspects.
[18]
When Mokhele arrived at the Plaintiff's house, Plaintiff informed him
that he will take him to
the person and place where the phone was
sold. Mokhele left the other two suspects and took the Plaintiff to
where the phone was
sold. Mokhele looked for a person named Steve as
information given by the Plaintiff, but could not find him. He then
enquired about
the whereabouts of Steve from a certain boy around
where Steve's shop is. The boy left and came back with the cellphone
and informed
Mokhele that Steve gave him the cellphone. Mokhele gave
the boy his cellphone numbers and asked that the boy give the numbers
to
Steve.
[19]
Mokhele said he went back to the police station and on arrival, he
heard the conversation between
the Complainant and the Plaintiff,
where the Plaintiff requested the Complainant to withdraw the charges
and at that time appeared
confused. Mokhele then completed a SAP 299
form in which both the Plaintiff and the Complainant signed for the
cellphone to be
handed over to the Complainant.
[20]
Mokhele said that the Plaintiff applied for bail and he opposed the
application as the Plaintiff had previous convictions
and bail was
denied.
[3]
[21]
Under cross examination, Mokhele insisted that Mesa (the Complainant)
was not telling the truth
that Plaintiff was not present on the day
the robbery took place and that the Plaintiff was part of the three
suspects that robbed
her of her cellphone. Further that the Plaintiff
was the person that sold the cellphone to Steve. Mokhele said
according to his
investigation, the Plaintiff was involved in the
robbery of the cellphone and was correctly charged for robbery of the
cellphone
and not for possession of stolen goods/phone.
[22]
The First Defendant called its second witness to testify, Constable
Thakeng. He testified that he became involved when
he was called
about the robbery by a Mr. Khuphe and that the Complainant had
information of the suspects that robbed her of the
cellphone. Thakeng
met up with the Complainant and the Complainant gave the description
of one of the suspects. Thakeng took two
of his colleagues to the
suspects house, whose name is Neo. The Complainant also accompanied
Thakeng and his colleagues to Neo's
house. However, Thakeng indicated
that he could not recall where Complainant got the information about
Neo from.
[23]
On arrival at Neo's place, Neo attempted to flee, but they were able
to stopped him by the door. Neo told Thakeng that
he can name the
people who were involved, namely Small also known as Thato
(Plaintiff), Chester who is known as Pule. Neo took
Thakeng and his
colleagues to the Plaintiff's house. On their arrival, the Plaintiff
told them that Chester (Pule) must be collected.
Plaintiff directed
the police to Chester's place. There at Chester's place, Plaintiff
told Thakeng that they were all involved
in the robbery of the
cellphone.
[24]
Under cross examination, Thakeng said Neo took the police to were the
Plaintiff stayed and Neo told the police that the
Plaintiff was with
them when the robbery of the cellphone took place. Further that it
was the Plaintiff that took the police to
where Chester resides.
Thakeng said the Plaintiff was linked and identified by Chester and
Neo including the Complainant.
[25]
The Second Defendant called Mr Noge as its witness and testified as
follows: Noge is a prosecutor
at the Regional Court in Kroonstad. On
receipt of the file, he proceeded with the prosecution of the
Plaintiff. He considered the
statements of the witnesses and warning
statements of the accused and decided that there was
prima facie
evidence that could stand in court.
[26]
Mr. Noge during the trial called two witnesses that is the
Complainant (Mosa) and one state witness.
He said during the evidence
of the Complainant, he made concessions when he realized that the
evidence would not take the state's
case any further however disputed
that he proceeded with a malicious prosecution against the Plaintiff
and that the Public Prosecutor
have no reasonable cause to
incriminate the Plaintiff. Further that the Plaintiff had a right to
apply for acquittal in terms of
Section 174 of the
Criminal
Procedure Act
[4]
(herein after referred to as
the CPA) which the Criminal Trial Court decided to grant.
[27]
Under cross examination Mr. Noge said the Complainant failed to
identify the Plaintiff and the
Plaintiff's warning statement had only
indicated that the Plaintiff sold the cellphone, thus linking the
stolen cellphone with
the Plaintiff. Moreover, the Complainant's
evidence was damaging to the State's case and as a result, he did not
oppose the Section
174 application. That was the Defendants case.
Issues
for determination
[28]
The parties were directed to submit written head of argument on 30
October 2023 and 28 November
2023 respectively.
[29]
For determination by this court is the unlawfulness of the arrest as
well as of the detention.
Further whether the prosecution was
malicious and the liability of the Defendants for the unlawfulness of
their action.
[30]
In an action for wrongful arrest and detention, the Plaintiff only
bears the onus of proving
arrest and detention including the
malicious prosecution. It is common cause that the Plaintiff was
arrested on 11 July 2019 and
released after his application in terms
of Section 174 succeeded and was discharged on 12 October 2020.
Claim
1 - Unlawful Arrest and Detention
[31]
The First Defendant pleaded that the arrest was lawful and the
Plaintiff was arrested by Constable
Thakeng in terms of Section
40(1)(2) read with Section 1 of the CPA.
[32]
Section 40(1)(b) of the CPA provides as follows:
"(1) A peace officer
may without warrant arrest any person-
(a)
who commits or attempts to commit any offence in his presence;
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other
than the offence of escaping from lawful
custody;
(c)
... ,
(d)
... ;
(e)
who is found in possession of anything which the peace officer
reasonably suspects to be
stolen property or property dishonestly
obtained, and whom the peace officer reasonably suspects of having
committed an offence
with respect to such thing;... ."
[33]
Section 41 of the CPA further provides that:
"(1) A peace officer
may call upon any person
(a)
whom he has power to arrest;
(b)
who is reasonably suspected of having committed or of having
attempted to commit an offence;...
."
[34]
It is trite that the onus rests on the First Defendant to justify an
arrest. In
Minister
if Law and Order and Others v Hurley and Another
,
[5]
Rabie CJ said the following:-
"An arrest
constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and
just to require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action
was justified in law."
[35]
The Plaintiff was arrested by Constable Thakeng after the Complainant
took Thakeng to Neo's place
of residence, whereupon Neo told Thakeng
that he was not alone and offered to take the police to the
Plaintiff's house. The Plaintiff
was implicated by Neo. Plaintiff not
wanting to be implicated alone, took Constable Thakeng to Chester
also known as Pule.
[36]
The Plaintiff's evidence that he asked for forgiveness from the
Complainant and that she should
withdraw the case against him, does
not appear as someone who has not done nothing wrong. Thakeng's
evidence that after conducting
his preliminary investigation and it
came to light that the Plaintiff was linked to the offence, leading
to him effecting the arrest,
places less burden on the First
Defendant to prove the unlawfulness of its action.
[37]
Constable Thakeng at the police station when in the presence of the
Complainant, Plaintiff, Neo
and Chester, the Complainant informed him
that it was the three men that robbed her. Thakeng followed the
arresting process and
detained the three and informed the
investigating officer to continue with further investigation.
[38]
To succeed in an action based on wrongful arrest, the Plaintiff must
show that the First Defendant
or someone acting as the agent of the
First Defendant deprived him of his liberty (See
Relyant Trading
(Pty) Ltd v Shangwe
2007 (1) ALL SA 375
SCA at paragraph 6
).
[39]
It is trite that the onus rests on the police officer to prove
lawfulness of the arrest. The
reasonable suspicion of arresting
officer acting under section 40 (1)(a) of the CPA, must be approached
objectively. The question
therefore is whether any reasonable person
confronted with the same set of facts that Constable Thankeng was
confronted with, would
from the alleged offence and suspicion, be
reasonable in arresting the Plaintiff.
[40]
There is no doubt that after the preliminary investigation and after
Neo implicated the Plaintiff
that Thakeng acted unreasonable in
arresting the Plaintiff. In
Duncan
v Minister of Law and Order
,
[6]
the Court dealt with the jurisdictional requirements and the
discretion to exercise that power to arrest. And in my view,
Constable
Thakeng exercise that discretion in arresting the
Plaintiff.
[41]
Section 205 (3) of the Constitution of the Republic of South
Africa,
[7]
provides as follows:
'The objects of the
police service are to prevent, combat and investigate crime, to
maintain public order, to protect and secure
the inhabitants of the
Republic and their property, and to uphold and enforce the law."
[42]
The public relies on the police to enforce the law. The Complainant
had a reasonable expectation
that the Plaintiff be arrested for being
part of the suspects that robbed her. Moreover, and in taking into
consideration that
the Plaintiff asked the Complainant for
forgiveness and asked that she withdraws the case against him.
Bearing in mind that the
Plaintiff took Thakeng to Neo's place of
residence. And under these circumstances, Thakeng execised his
discretionary powers within
the limits of the authorizing statute in
terms of Sections 40 and 41 of the CPA and with Section 205 (3) of
the Constitution.
[43]
Therefore, in my view the Plaintiff's arrest was lawful and Claim 1
ought to be dismissed.
Claim
2 - Malicious Prosecution
[44]
The Plaintiff's evidence is that he was charged and brought to court
on 15 July 2019 at the District Court in Kroonstad,
that this was his
first appearance and that he had applied for legal aid. Plaintiff was
thereafter kept for seven (7) days in custody.
On 22 July 2019,
Plaintiff appeared in court however, the docket was not in court. The
matter was then remanded for 14 days. Plaintiff
denied any knowledge
of bail proceedings.
[45]
Mr. Noge who testified on behalf of the Second Defendant, evidenced
that he was not the prosecutor during the bail hearing
held in the at
the District Court. He only represented the state at the trial
itself. The trial bundle which consists of the docket,
[8]
shows the prosecutor information in which the bail was opposed and
same denied by the Court.
[46]
As per Mokhele's evidence, he completed the bail forms and considered
the issue of the Plaintiff having had previous convictions.
Mokhele
said he was in court on the day of the bail application and gave
evidence in respect of the bail hearing. The matter was
thereafter
transferred to the Regional Court. Mokhele did not know the Plaintiff
when he completed the bail form and neither had
any reason to mislead
the court in completing the bail form. At the time of completing the
bail form, Mokhele was following the
necessary process that is done
or each and every accused person that is facing a bail application.
[47]
Plaintiff in respect of malicious proceeding claims that the Second
Defendant unlawfully and maliciously proceeded with the
prosecution
from 15 July 2019 until 12 October 2020, further that the Second
Defendant had no reasonable and probable cause to
incriminate him. I
doubt that the Second Defendant, would aimlessly proceed to prosecute
an innocent person with no reasonable
cause.
[48]
In this instance the Second Defendant instigated the prosecution
against the Plaintiff on the
allege basis that there was sufficient
prima facie
evidence that the Plaintiff committed the offence.
[49]
Mr. Noge evidence is that when he received the file, he considered
the warning statements of
the accused as well as the statement of the
Complainant. Moreover, according to Noge the statements of the police
indicated that
the cellphone was recovered and how it was recovered
and who were the involved parties. Upon having considered all of the
above,
he decided that there was sufficient evidence to prosecute the
Plaintiff.
[50]
Mr. Noge during the criminal trial proceedings, called 2 witnesses,
the Complainant and one other
state witness. However, after calling
the police officer, he realized that the state's case was not strong.
A Section 174 application
was brought and not opposed as the Mosa
(the Complainant) during her evidence made a lot of concessions. The
following is noted
on the transcribed record:
[9]
"Mr Schilling: On
the 4th of July 2019, during the incident, was he present.
Ms Choi [sic]: I
don't think he was.
Mr Schilling: Did you see
him physically there or not?
Ms Choi [sic]: The time
of the robbery?
Mr Schilling: Yes.
Ms Choi [sic]: No I
didn't.
Mr Schilling: His
involvement subsequent to that you don't know On 4th of July he
wasn't there, correct?
Ms Choi [sic]: I don't
think he was because I could only recognize one the following day
because I was so traumatized about what
happened that day."
[51]
There are four (4) requirements which the plaintiff must allege and
prove in order to succeed
with a claim of malicious prosecution.
[10]
The said requirements are that the Plaintiff must allege and prove:
(a)
That the Defendants set the law in motion (instigated or instituted
the proceedings);
(b)
That the Defendants acted without reasonable and probable cause;
(c)
That the Defendant acted with malice (or animo injuriand1) and;
(d)
That the prosecution has failed.
[52]
The person who claims malicious prosecution must not only allege, but
must go further to probe
if the Defendant acted maliciously and
without probable cause.
[11]
As
to the Plaintiff's evidence that there was a request made to the
Complainant to have the charges withdrawn and with the Complainant
having replied she does not wish to continue with the case and only
needing her phone back, the mere fact that Plaintiff presented
such
evidence, does not mean there was no reasonable or probable cause for
a prosecution. If this were to happen, then most prosecutions
would
be regarded as malicious. This alone, weighed in the light of all the
evidence, could not constitute sufficient grounds on
which to find
that the Second Defendants could not have believed in the guilt of
the Plaintiff.
[12]
In my
view, the Plaintiff has failed to show that his prosecution was
malicious and was without reasonable or probable cause.
[53]
With the Section 174 having succeeded based on the concessions by the
Complainant during the
criminal trial proceedings, it cannot be said
that prosecution failed for purposes of a civil claim for malicious
prosecution.
[13]
[54]
Plaintiff did not succeed in proving malice on the part of the
prosecution. Mr. Noge had no knowledge
of the Plaintiff and had no
reason to set motion a prosecution of someone unknown to him. He was
performing his duties as any prosecutor
would. Noge did not even
oppose the section 174 as he could see that the state's case was no
longer sufficient to prosecute the
Plaintiff and took into
considerations the concessions made by the Complainant during the
criminal trial proceedings. It therefore
stands that, in order for
the Plaintiff to succeed with a claim for malicious prosecution,
Plaintiff must prove all the four elements
listed above.
[55]
The bail court proceeded with the bail application based on the
information provided by the Investigating
Officer that Plaintiff had
previous convictions, had no permanent address, no property nor
employed. The bail court cannot be faulted
if information provided by
the Investing Officer placed the Plaintiff in a negative light before
it. Further that, Plaintiff took
the police to where the phone was
sold. The Plaintiff on his own version asked the Complainant for
forgiveness and that she should
drop the charges. This engagement by
the Plaintiff with the Complainant did not assist him much, as a
reasonable person who has
done nothing, has no reason to ask for
forgiveness and that the charges to be withdrawn against him.
[56]
In order to succeed with a claim for malicious prosecution, Plaintiff
must prove that the law
was set in motion, that the Second Defendant
acted without reasonable and probable cause and that the Second
Defendant acted with
malice. The Plaintiff, in my view has failed to
prove that the Second Defendant conducted a malicious prosecution
against him.
[57]
In light of the above, there is no indication on the part of the
Second Defendant that prosecution
was malicious and it cannot be
convincingly said it acted with malice and without reasonable cause.
In my view, Plaintiff did not
discharge the onus resting on him
regarding the claim for malicious prosecution against the Second
Defendant.
[58]
Therefore, there is no reason or doubt for this court to believe that
that the Second Defendant
conducted a malicious prosecution against
the Plaintiff.
Credibility
of Witnesses
[59]
The Plaintiff did not do much for his case, he could not explain to
the police on the night they
came for him that he was not part of the
robbery instead took the police to Chester's house. Furthermore,
Plaintiff assisted the
police by taking them to where the phone was
sold. His version that he was approached by two people who wanted to
sell the phone
cannot stand as none of these people came forward to
corroborate his evidence. Plaintiff in my view was not a credible
witness.
[60]
The Defendants' witnesses, that is Mokhele, Thakeng and Noge, came
across as reliable witnesses
and it cannot be said in doing their
work, there was any malice, be it with the arrest or the prosecution.
They were simply doing
their work.
[61]
Therefore, in my view, the arrest was lawful and there was no malice
on the prosecution of the
Plaintiff and Claim 2 ought to be
dismissed.
Costs
[62]
With regard to costs, I find no reason to deviate from the general
rule that costs should follow
the event albeit on a lower scale.
Order
[63]
Accordingly, the following order is made:
1.
The Plaintiffs Claim 1 and Claim 2 are dismissed with costs on a
party and party scale.
S.
CHESIWE, J
On behalf of the
Plaintiff:
Adv. C Zietsman
Instructed by:
Jacobs Fourie Inc.
BLOEMFONTEIN
On behalf of the
Defendant:
Adv. Ferreira with
Adv. N M Phakama
Instructed by:
State Attorney
BLOEMFONTEIN
[1]
Act 40 of 2002
[2]
Exhibit "A" - Index Documents
[3]
(Index Documents Bundle, page 49)
[4]
Act 51 of 1977
[5]
1986 (3) SA 568
(A) at 589 E-F
[6]
1986 (2) SA 805 (A)
[7]
Act 108 of 1996
[8]
Index document bundle, page 49
[9]
Index documents bundle, page 126.
[10]
Minister of Justice and Constitutional Development and Others v
Moleko (131/07)
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA);
2009 (2)
SACR 585
(SCA) (31 March 2008)
[11]
Mdletshe N.O and Another v Minister of Police (AR 135/2022) [2023]
ZAKZPHC106 (23 June 2023)
[12]
Nogwebele v Minister of Police and Another 2016 (2) SACR 662 (WCC)
[13]
Criminal Procedure Act 51 of 1977
, Section (See Nogwebele v Minister
of Police & another
2016 (2) SACR 662
(WCC)