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2024
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[2024] ZALMPPHC 35
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Phillip v Minister of Police and Another (4176/2019) [2024] ZALMPPHC 35 (22 April 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4176/2019
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
In
the matter between:
MALULEKE
OMPIE
PHILLIP PLAINTIFF
And
MINISTER
OF
POLICE FIRST
DEFENDANT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION SECOND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The
plaintiff has instituted an action against the defendants claiming R2
750 000.00 for alleged unlawful arrest and detention;
malicious
prosecution and loss of earnings. The plaintiff in his particulars of
claim has stated that on 9
th
November 2017 he was
unlawfully and maliciously arrested by members of the South African
Police Service (SAPS) who were acting
within the course and scope of
their employment for alleged theft of a cell phone from a certain
woman unknown to him. He was detained
from the 9
th
November 2017 until the 23
rd
January 2018 when he was
found not guilty and discharged in terms of section 174 of the
Criminal Procedure Act 51 of 1977 (CPA).
[2]
The
plaintiff in his particulars of claim has further stated that the
prosecution had unlawfully instituted criminal proceedings
against
him which amounted to malicious, alternatively wrongful prosecution.
The plaintiff has also stated that he had lost his
earnings for the
period he was incarcerated, and he is no longer able to secure
employment as a result of the unlawful arrest,
detention and
malicious and/or wrongful prosecution. Both defendants are sued
jointly and severally.
[3]
The
defendants have defended the plaintiff’s action. In their plea
the defendants have conceded that the plaintiff was arrested,
and
that the members of the SAPS in effecting the arrest of the plaintiff
have acted on a reasonable suspicion that a crime has
been committed
as contained in section 40(1)(b) of the CPA following an allegation
by the complainant that she saw a man who stole
her cell phone, and
against whom she had opened a criminal case. Further that on the
basis of the evidence gathered on investigation,
the prosecution
determined and were satisfied that there was a prima facie case
against the plaintiff. It was upon that determination
that they
prosecuted the plaintiff. The defendants have further pleaded that
the plaintiff was unemployed at the time of his arrest,
and denied
that his arrest had negatively affected his prospects of employment.
[4]
The
parties in their signed pretrial minutes have agreed that there was a
split onus, and therefore the plaintiff had the duty to
begin. The
parties have further agreed that the matter should proceed on both
merits and quantum.
[5]
The
plaintiff has testified and stated that he was arrested during
November 2017 for a crime that he did not commit. On the day
of his
arrest he took his girlfriend to Savannah mall to go to Capitec ATM.
He had arranged with his friend who had a bakkie to
transport them to
Savannah mall. On arrival at the ATM they stood on the que with other
people. As they were standing on the que,
he decided to go to the
parking area where they have parked their car to go and smoke. On
arrival at the bakkie he sat at the back
of the bakkie with the
driver and started smoking.
[6]
As
the plaintiff was busy smoking, 5 police officers who were in SAPS
uniform arrived at the bakkie in the company of a certain
female
person who was in private clothes. That woman pointed at the
plaintiff and said he is the one. The woman told the police
that the
plaintiff had taken her cell phone and some of her belongings. The
plaintiff told the police that he is from the bank
and was with his
wife who was still in the bank. The woman said she was referring to
an incident that occurred in the past days.
The plaintiff told the
police that in the past days he was at his homestead in Tzaneen.
[6]
The
police asked the woman whether she was certain that it was the
plaintiff who had taken her cell phone and she said yes, and
she
further stated that she was having footage of the incident showing
the place where they were in Savannah mall. The police asked
the
plaintiff to accompany them to the management office of Savannah mall
to go and watch the video footage of the incidents of
those days. The
security officers at the management office told the police that at
that moment the footage was not there but that
they will sent that
footage to the investigating police officer. The plaintiff asked the
police whether he can provide them with
his names and address and
that they will phone him when the footage was ready. The police
refused to accede to his demand and told
him that they are not the
ones who were handling that matter.
[7]
The
police handcuffed the plaintiff and took him to the police station.
On arrival at the police station the arresting police officers
handed
the plaintiff to the investigating officer (IO). The IO asked those
police officers whether they have visited the control
room at
Savannah mall and they said yes. The plaintiff asked the IO whether
he can release him, and that he will call him after
he had received
the footage from Savannah mall. The IO responded by telling other
police officers that he does not speak to suspects
in the office, but
from the police cells. The IO told the plaintiff that the footage
will find him in the cells, and if it was
not him he will be
released. The plaintiff was taken to the police cells where he was
detained.
[8]
On
the third day the plaintiff asked the IO whether the footage has been
delivered and he said yes. When the plaintiff asked to
view that
footage the IO told him that he will view it in court. The IO took
the plaintiff’s finger prints and charged him,
and thereafter
the plaintiff was taken to court to make his first appearance. The
plaintiff phoned his girlfriend to arrange a
legal representative for
him. In court he asked his attorney whether he had an opportunity to
view the footage and his attorney
told him that the police were
refusing him to view that footage. He appeared in court and was
remanded in custody.
[9]
The
plaintiff’s attorney told him that her girlfriend does not want
anything to do with him as it was not the first time he
was arrested.
He was arrested 5 times before that incident. His attorney told him
that because he did have money, they can abandon
his bail
application, go strait to the main trial, and that he will not have
to pay him more than what was already paid to him.
A trial date was
set down for the 23
rd
January 2018. He was found not
guilty and discharged in terms of section 174 of the CPA.
[10]
The
plaintiff testified that it had pained him to be detained from the
9
th
November 2017 to 23
rd
January 2018 for a
crime that he did not commit. From the experience of his previous
arrest he had vowed not to be arrested again.
He had started a new
life, and his business was starting to flourish. As a result of the
arrest he had lost the mother of his child.
Whilst in the cells he
developed chest problems and was always using a cloth as the cells
where he was held were dusty. The blankets
that they use when they
sleep were not clean. The condition at the cells were not good. The
complainant was working at Medi-Clinic
where he was having a business
as a street hawker, and she had an influence on his customers not to
buy from him anymore. By the
time he was released from the cells he
had lost everything.
[11]
The
plaintiff was cross-examined and he conceded that on his appearance
in the reception court on 17
th
November 2017 he had
abandoned his bail application, but denied that he wanted to tender a
guilty plea. The plaintiff stated that
his legal representative had
advised him that in order to speed up the trial, he should abandon
his bail application. He was sure
that it was not him who have
committed the offence. He had abandoned his bail application because
he was shown his previous convictions,
and they have told him that
because of his previous convictions he was going to be refused to be
released on bail. The plaintiff
was referred to the notes of the IO
in his investigation diary of the 22
nd
November 2017 where
the IO had recorded that the plaintiff’s matter was postponed
to 7
th
December 2017 for a guilty plea. The plaintiff
insisted that he was going to plead not guilty. The plaintiff
conceded that he was
assuming that because the complainant was
working at Medi-Clinic she might have influenced her co-workers not
to buy from him.
[12]
The
plaintiff called Tshepho Aubrey Modika as his only witness. He
testified that he knows the plaintiff for a long time. He was
having
a good relationship with the plaintiff. During 2017 he and the
plaintiff were staying in the same complex in Polokwane next
to the
town pool. The plaintiff was a street vendor next to the town pool
and also next to Spar shop in town. The plaintiff was
selling
cigarettes and food.
[13]
During
2017 the witness was phoned by the plaintiff’s girlfriend
informing him that the plaintiff has been arrested. The plaintiff’s
girlfriend was asking the witness to find a legal representative for
the plaintiff as she was breastfeeding and also did not know
anything
about legal representatives. He did find a legal representative and
introduced him to the plaintiff’s wife. The
witness had
attended court on the plaintiff’s first appearance in court,
and thereafter he did not attend on other dates
when the plaintiff
appeared in court. He again attended court on the final day when the
plaintiff’s trial started. The plaintiff
had pleaded not
guilty, and later he heard the court telling the plaintiff that he
was found not guilty in terms section 174 and
he can go home.
[14]
The
witness was cross-examined and he stated that before the plaintiff
was arrested, the plaintiff was selling a lot of things.
The witness
further stated that after the plaintiff was found not guilty and
discharged, he did see the plaintiff and his girlfriend
anymore, and
therefore he could not tell how long had the plaintiff’s
business lasted after he was released. That concluded
the plaintiff’s
evidence and he closed his case.
[15]
The
defendant called Matome William Letsoalo as its first witness. He
testified that he is member of the SAPS and warrant officer
by rank.
On 9
th
November 2017 he and his crew were doing patrol
work at Savannah mall when they were approached by a certain lady who
told them
that she had met a person who had robbed her of her cell
phone on 1
st
October 2017. The lady directed them to the
direction where the said person went. As they were walking with that
lady, she pointed
at a certain man who was walking as the person who
had robbed her.
[16]
They
followed that person who was walking towards the parking area. In the
parking area they approached that person and introduced
themselves to
that person. That person is the plaintiff. They asked the plaintiff
whether he knew the lady, and he said he did
not know him. They
explained to the plaintiff that the lady was alleging that he had
robbed her of her cell phone on 1
st
October 2017, and had
also opened a criminal case for that with the SAPS. They explained to
the plaintiff that they were arresting
him and taking him to the
police station.
[17]
They
did not handcuff the plaintiff. They walked with the plaintiff to the
office at the mall where the CCTV was located to check
whether the
CCTV was working in order to enable the IO to come and watch the
footage. On arrival at the office the security officers
told them
that the CCTV had not been working for the past 2 to 3 days. They
then drove to the police station.
[18]
On
arrival at the police station, the police officer on duty phoned the
IO in the plaintiff’s case. Upon arrival of the IO
W/O
Tshikudo, they handed the plaintiff to him, and the IO requested the
witness to make an arrest statement which he did. They
have arrested
the plaintiff without a warrant because they have realized that
should they leave him to first obtain the warrant,
they might not
find him, and also that they did not have an address of where he was
staying.
[19]
The
witness was cross-examined and he denied that when they were taking
the plaintiff to the police station he had showed them where
he was
staying, but that he had told them that he was hustling. The witness
denied that the plaintiff had told them that he was
a street hawker.
The witness stated that they have arrested the plaintiff because he
was pointed by the complainant and they therefore
took the
complaint’s version as the complainant knew what was taken from
her. The witness stated that he did not know that
the plaintiff was
found not guilty and discharged in terms of section 174 of the CPA.
The witness further stated that as the plaintiff
said he was from
Nkowakowa in Tzaneen, there was no way they could have driven to
Tzaneen to verify the address.
[20]
The
defendant called Mpho Annikie Mehlape as its second witness. She
testified that currently she is the NPA regional court prosecutor,
and previously she was the district prosecutor. She is the one who
had enrolled the plaintiff’s case in the district court
for his
first appearance in the reception court during 2017. She was involved
in the plaintiff’s case when he made 3 appearances
in the
reception court. At the time of enrolling the matter, they were
satisfied that there was a prima facie case against the
plaintiff.
The complainant was robbed of her cell phone at Savannah mall and the
plaintiff was arrested a month later. As the prosecution,
they were
satisfied that the plaintiff was properly identified by the
complainant, and was properly arrested and brought before
court.
[21]
Based
on the complainant’s statement and the statement of the
arresting officer, the prosecution decided to prosecute the
plaintiff. The complainant in her police statement had stated that
she had a struggle or scuffle with the plaintiff when she was
robbed
of her cell phone, and had therefore ample time to identify the
plaintiff. The plaintiff made his first appearance in the
reception
court on 13
th
November 2017, and his constitutional rights
were explained to him. The plaintiff was supposed to have made his
bail application
on 22
nd
November 2017, but abandoned that
for a guilty plea. On 7
th
December 2017 the plaintiff did
not plead guilty as he was no longer represented by his previous
legal representative, but had
now elected to be represented by a
legal representative from Legal Aid SA. When the plaintiff told the
court on his previous appearance
that he was going to plead guilty,
he was legally represented by his previous legal representative.
[22]
When
the plaintiff elected to plead guilty, he was not influenced by the
State. The prosecution of the plaintiff was not malicious,
but the
State had a strong case against the plaintiff hence at some stage he
wanted to plead guilty. The reception court was not
doing trial
matters, hence he has never met the complainant.
[23]
The
witness was cross-examined and it was put to her that according to
the notes of the presiding officer on 22
nd
November 2017
the plaintiff has abandoned his bail application and his matter was
postponed to the 7
th
December 2017 for a plea in court B,
but the notes does not state that it was for a guilty plea. The
witness responded by stating
that she was a prosecutor in the
reception court which was court B, and for the presiding officer to
write for “a plea in
court A” it refers to a guilty plea.
Further that on the notes in the investigation diary for the
22/11/2017, the IO had
clearly recorded that the matter was postponed
to 7
th
December 2017 for a guilty plea.
[24]
The
witness stated that the intention of the plaintiff was to plead
guilty in the reception court. The witness conceded that the
complainant in her police statement had mentioned 2 suspects who were
unknown to her, but had further stated that she will be able
to
identify one of the suspects. The witness conceded that when they
decided to prosecute the plaintiff, they did not have the
evidence of
the CCTV video footage, but that the evidence which was at their
disposal was sufficient to prosecute the plaintiff.
[25]
The
defendant called Mangope Justice Digoro as its third witness. He
testified that he was the prosecutor in the criminal trial
against
the plaintiff. The plaintiff was charged with theft of an I-phone.
Before the trial started, he had consulted with his
witnesses. When
he perused the charge sheet, he found that the plaintiff had made his
first appearance in the reception court and
was represented by adv
Mokou. In his second appearance the plaintiff had abandoned his bail
application, and his case was transferred
to court A for a guilty
plea as court B was dealing with first appearances and bail
applications.
[25]
When
the plaintiff appeared in court A, he requested to be represented by
a Legal Aid legal representative, and that practitioner
was not in
court that day. It is normal practice that the presiding officer on
the notes in the charge sheet to endorse a guilty
plea as “plea”,
and when it is a plea of not guilty to endorse it as “plea and
trial”. The notes of the
presiding officer of the proceedings
of the 7
th
December 2017 shows that the intention of the
plaintiff was to plead guilty.
[26]
The
witness further testified that the plaintiff had pleaded not guilty
to the charges he was facing during his trial. The complainant
had
testified and the witness was satisfied that complainant had properly
identified the plaintiff by describing the plaintiff
as a person with
a dark complexion, having big tummy and a giant. Further that when
the plaintiff took the cell phone from her,
he was in a close
proximity with her, and there was no room to make a mistake of
identification of the plaintiff. The witness testified
that he had
also called the arresting officer to testify and thereafter he closed
his case.
[27]
The
defence applied for discharge in terms of section 174 of the CPA
purely basing their arguments on the identification of the
plaintiff
by the complainant. The complainant had described the plaintiff the
way he appeared in the accused box. The presiding
officer found that
the requirements for identification of the plaintiff were not met as
the complainant had failed to testify about
the distinctive features
of the plaintiff. Based on that the application for a discharge in
terms of section 174 of the CPA was
granted.
[28]
The
witness was cross-examined and he conceded that the prosecution did
not appeal the ruling of the court
a quo
. The witness also
conceded that an identification parade was not held. When asked
whether they have confirmed as to who was the
true owner of the cell
phone that was stolen, the witness stated that the complainant had
testified that it was her cell phone
that was stolen. That concluded
the evidence of the defendants and they closed their case.
[29]
The
plaintiff’s action is based on claims on unlawful arrest and
detention; malicious prosecution; and past and future loss
of
earnings. It is not in dispute that the plaintiff was arrested on 9
th
November 2017 on alleged suspicion of theft of a cell phone after he
was pointed out to the arresting police officer by the complainant
at
Savannah mall. The defendant in justifying the actions of the
arresting officer in arresting the plaintiff had pleaded that
the
arresting officer had acted in terms of section 40(1)(b) of the CPA.
Generally, an arrest and detention are prima facie unlawful
and
wrongful, and it is for the defendant to prove the lawfulness of the
arrest and detention once admitted. (See
Lombo
v
African
National Congress
[1]
).
[30]
In
terms of section 40(1)(b) of the CPA, a peace officer may without a
warrant arrest any person whom he suspects of having committed
an
offence referred to in Schedule 1, other than the offence of escaping
from lawful custody. It is trite that the jurisdictional
facts must
exists before section 40(1)(b) can be invoked. Those jurisdictional
factors are that the arrestor must be a peace officer;
he must
entertain a suspicion; it must be a suspicion that the arrestee had
committed an offence referred to in Schedule 1 of the
Act; and the
suspicion must rest on reasonable grounds. If the jurisdictional
requirements are satisfied, the peace officer may
invoke the powers
conferred by the subsection, i.e, he/she may arrest the suspect. (See
Duncan
v Minister of Law and Order
[2]
).
[31]
On
what may be regarded as reasonable suspicion, there must be evidence
for the arresting officer to form a reasonable suspicion
which is
objectively sustainable. (See
Minister
of Law and Order v Hurley and Another
[3]
).
This will entail the arresting officer investigating the
circumstances of the particular offence which is alleged to have been
committed before it can be said that there is a reasonable suspicion
that an offence has been committed.
[32]
The
plaintiff was accused of having committed theft of a cell phone of
the complainant. The offence which the plaintiff was accused
to have
committed was a Schedule 1 offence which qualifies the arresting
officer to arrest without a warrant of arrest, provided
the suspicion
rest on reasonable grounds. It is not in dispute that the police
officer who had arrested the plaintiff is a peace
officer. The
plaintiff was arrested after he was pointed out by the complainant
who was there in person. The complainant is the
one who had
approached the arresting officer who together with his crew were
doing patrol work at Savannah mall, and told the arresting
officer
that she seen the person who had robbed her of her cell phone. The
complainant took the police officers to the direction
where the
plaintiff went and pointed the plaintiff. The police officer did not
immediately arrest the plaintiff, but had first
questioned him. From
the plaintiff’s own version, the arresting officer had asked
the complainant whether she was certain
that it was plaintiff, and
the complainant confirmed that. The question is whether the pointing
of the plaintiff by the complainant
and questions asked by the
arresting officer were sufficient to enable the arresting officer to
form a reasonable suspicion that
the plaintiff had committed an
offence.
[33]
On
the date on which the plaintiff was arrested, the complainant had
already opened a criminal case with SAPS against unknown suspects.
The docket had been allocated to the IO. The arresting officer had no
knowledge of the complainant’s docket and was not involved
in
the investigation of the matter. His role was merely to arrest after
they were approached by the complainant. Since the complainant
had
already opened a criminal case, and was able to tell the arresting
officer who was not involved in the investigation of the
matter as to
who had robbed her, the arresting officer had no option but arrest
and hand over the suspect to the IO, of which he
did. Any further
clarification will be done with the IO. Even before the plaintiff was
taken to the police station, the arresting
officer took some steps to
ensure that he was arresting the correct person by going to the
management office of Savannah mall to
check the CCTV footage of the
date on which the complainant was allegedly robbed. Unfortunately, he
was told that the CCTV has
not been working for the past 2 to 3 days.
[34]
In
Biyela
v Minister of Police
[4]
Musi AJA said:
“
[35]
What
is required is that the arresting officer must form a reasonable
suspicion that a Schedule 1 offence has been committed based
on
credible and trustworthy information. Whether that information would
later, in court of law, be found to be inadmissible is
neither here
nor there for the determination of whether the arresting officer at
the time of arrest harboured a reasonable suspicion
that the arrested
person committed a Schedule1 offence.
[36]
The
arresting officer is not obliged to arrest based on a reasonable
suspicion because he or she has discretion. The discretion
to arrest
must be exercised properly. Our legal system sets great store by the
liberty of an individual and, therefore, the discretion
must be
exercised after taking all the prevailing circumstances into
consideration”.
[35]
In
my view, the steps taken by the arresting officer before arresting
the plaintiff and taking him to the police station were sufficient,
and the rest of the investigation was to be carried out by the IO.
The facts placed before the arresting officer by the complainant
were
reasonable for him to form suspicion that a Schedule 1 offence had
been committed by the plaintiff. There was no basis for
the arresting
officer to find that the information placed before him by the
complainant was not credible and trustworthy.
[36]
The
complainant had made a statement to the police. In that statement the
complainant had stated that she was robbed of her cell
phone by two
African male persons, and that she will be able to identify one of
them if she can see him again. She saw the plaintiff
and recognised
him as the person who had robbed her of her cell phone. This
statement was at the disposal of the IO. It is clear
from the
statement of the complainant that the suspects who robbed her of her
cell phone were unknown to her, but she will be able
to identify one
of them if she sees him again. The complainant was allegedly robbed
of her cell phone on 1
st
October 2017, and the plaintiff
was arrested on 9
th
November 2017. The incident of the 1
st
October 2017 was still fresh in the complainant’s mind, and she
had identified the person who allegedly robbed her. Whether
the
manner in which the complainant had identified the plaintiff was
sufficient to sustain a conviction was not for the IO to determine.
The plaintiff had a series of previous convictions, and with that
record it was not for the IO release him, but had to appear in
court
and make a formal bail application.
[37]
In
my view, the arresting officer and the IO have taken into
consideration all the prevailing circumstances before forming a
reasonable
suspicion to arrest and detain the plaintiff. Therefore,
the plaintiff’s arrest and detention was based on reasonable
grounds.
[38]
For
a plaintiff to succeed with a claim for malicious prosecution, he
must allege and prove that (i) the defendants have set the
law in
motion; (ii) the defendants have acted without reasonable and
probable cause; (iii) the defendants have acted with malice;
and (iv)
the prosecution has failed. It is not in dispute that the plaintiff
was formally charged with the offence of common robbery
for an
incident that allegedly occurred on 1
st
October 2017. The
plaintiff was ultimately found not guilty and discharged in terms of
section 174 of the CPA. Therefore, requirements
1 and 4 have been
satisfied
[39]
The
plaintiff when he made his first appearance in the reception court
13
th
November 2017 was legally represented Adv AM Mokou
who was briefed by Richard Mahopo Attorneys. On that date the matter
was postponed
to the 22
nd
November 2017 for bail
application. On 22
nd
November 2017, the plaintiff had
abandoned his bail application. The presiding officer had recorded
that the matter was postponed
to 7
th
December 2017 for
plea. The defendants’ second witness who was prosecuting the
plaintiff in the reception court has testified
that when it is
recorded “plea”, it means that the accused was going to
plead guilty, and that on 22
nd
November 2017 the plaintiff
had told the reception court that he intended to plead guilty to the
charges. The version of the second
witness for the defendants is
corroborated by what has been recorded in the investigation diary and
also the version of the third
witness for the defendant. In the
investigation diary of the 22
nd
November 2017, it has been
recorded that the plaintiff’s matter has been postponed to the
7
th
December 2017 for a guilty plea.
[40]
The
version that the plaintiff intended to plead guilty was put to him
and he was even referred to the investigation diary and charge
sheet.
The plaintiff was aware of the defendants’ version in relation
to him having intended to plead guilty. In a claim
malicious
prosecution, the onus is on the plaintiff. Since the plaintiff was
legally represented by adv Mokou when it was recorded
that the
plaintiff intended to plead guilty, it was vital for the plaintiff to
have called adv Mokou as witness to clarify whether
what has been
recorded by the reception court is a true reflection of what he had
placed before the reception court. No explanation
was given why he
was not called as a witness. The authenticity of the said documents
have not been challenged, and this court finds
them to be credible
and reliable.
[41]
The
plaintiff through his legal representative had informed the reception
court that the plaintiff intended to plead guilty. A legal
representative is an officer of the court, and will not mislead the
court. He had assessed the case against the plaintiff and found
that
the evidence against him was overwhelming. This support the
version of the prosecution that it was correct in taking
a decision
charge the plaintiff. It can therefore not be said that the
defendants acted without reasonable and probable cause,
and with
malice whilst at some stage the plaintiff himself did not have faith
in his defence. Whether he had later through the
advice of another
legal representative has changed his mind and decided to plead not
guilty is immaterial. What this court should
look at is the time when
he was charged whether the defendants have acted without probable and
reasonable cause.
[42]
The
complainant in her police statement has stated that she will be able
to identify one of the suspects if she had an opportunity
to see him
again. Usually when police take down a complainant statement, they do
not explain to the complainant to give full details
of the incident
in his/her statement. The complainant’s statements are just to
assist the prosecution to formulate the charges
against the accused.
In her police statement, the complainant had stated the item robbed
from her, the date and place where it
was taken and later identified
the culprit to the police. This information was sufficient to
establish a prima facie case against
the plaintiff and also to
formulate the charges against the plaintiff. The rest will be cured
by oral evidence in court. With the
facts placed before the
defendants, it can therefore not be said that they have acted without
probable and reasonable cause, and
also with malice.
[43]
Turning
to the claim for the alleged loss of earnings, the onus is on the
plaintiff to prove the loss that he had suffered, whether
past or
future loss of earnings. The plaintiff is claiming the loss of
earnings for the alleged business he was running before
his arrest.
The defendant denies that the plaintiff was employed or running a
business at the time of his arrest. It was therefore
for the
plaintiff to prove that he had a business that was generating income
for him. That can be achieved by the plaintiff employing
the services
of an actuary, or submitting bank statements reflecting the amount
generated by the plaintiff from the business. Thereafter
the
plaintiff must prove how much he had lost during the time he had
spent in prison, and also prove that after his release from
prison he
was unable to continue trading and what were the reasons for that.
[44]
The
plaintiff under cross-examination has conceded that after his
release, he did not continue with his business. The reasons for
that
was that he had assumed that his customers who were mostly from
Medi-Clinic where the complainant was working will not come
to buy
from him as they will view him of having offended a woman. Further
that he assumed the complainant would have influence
the customers
from Medi-Clinic not to buy from him. It is clear that the plaintiff
did not attempt to revive his business but took
a decision not revive
it based on assumption. The plaintiff had also testified that he was
selling at Spar which was far away from
Medi-Clinic. The plaintiff
did not testify what prevented him from reviving the business at Spar
or whether the complainant was
also having an influence on his Spar
customers. Plaintiff has failed to submit an actuarial report or bank
statements. The court
does not know how much was the plaintiff making
before he was arrested. In my view, the plaintiff has failed to prove
any loss
of earnings that he might have suffered, whether past or
future.
[45]
In
the result the following order is made:
45.1
All
the plaintiff’s claims against the defendants are dismissed
with costs.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
: Adv KP Letsoalo
Instructed
by
:
MWIM and Assoaciates
Counsel
for the defendant
: Adv RB Letsepe
Instructed
by
: State Attorney Polokwane
Date
heard
:
7
th
March 2024
Electronically
circulated on
: 22
nd
April 2024
[1]
2002
(5) SA 668
(SCA) at para 32
[2]
1986
(2) SA 805
(A) at 818G-I
[3]
1986
(3) SA 586
(A) at 579E-580E
[4]
[2022]
ZASCA 36
(01 April 2022) at paras 35 and 36