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[2024] ZAMPMBHC 17
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Mashabela v National Director of Public Prosecutions and Another (1718 / 2018) [2024] ZAMPMBHC 17 (7 March 2024)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 1718 / 2018
In the matter between:
SURPRISE
MPHO MASHABELA PLAINTIFF
And
THE
NATIONAL DIRECTOR OF PUBLIC
1
ST
DEFENDANT
PROSECUTIONS
MINISTER
OF POLICE
2
ND
DEFENDANT
JUDGMENT
RATSHIBVUMO J:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be 10H00 on 07
March 2024.
[1]
Introduction
.
“
[Women]
have a legitimate claim to walk peacefully on the streets, to enjoy
their shopping and their entertainment, to go and come
from work, and
to enjoy the peace and tranquillity of their homes without the fear,
the apprehension and the insecurity which constantly
diminishes the
quality and enjoyment of their lives.”
[1]
Sadly, when women try to claim these rights, as entrenched in the
Bill of Rights they often fall victims of rape and/or murder
right on
the very streets meant to give them the enjoyment of peace,
tranquillity and security described above. Florence Phiri
(Ms. Phiri)
of Jerusalem Trust, Mpumalanga, knew of these inherent dangers too
well. It must have been this knowledge that alerted
her to avoid
roaming the streets of White River alone, at night.
[2]
One can only imagine the sense of security
that Ms. Phiri felt when on 01 May 2015, she walked the streets of
White River side by
side with her boyfriend, Wyn Ben Mokobane (the
deceased). These lovers exhausted the last hours of Workers Day
together at a tavern.
When the new day started, they were walking
freely along William Lynn Street in White River, near the taxi rank.
As they walked,
a man approached them, grabbed Ms. Phiri and started
dragging her away from the deceased. The deceased knew his role to
his lover,
at that time of the night, and he lived up to it. He
pulled Ms. Phiri away from this stranger causing her some great agony
as the
two men fiercely pulled her, one on her left hand and another
on her right.
[3]
Like a prey in the claws of a predator in
the nearby Kruger National Park, whose cry only alerts the vultures
and other scavengers,
her plight for help only invited another man
who came and joined the battle on the side of this stranger, against
the deceased.
The second man broke a bottle with which he stabbed the
deceased on the neck, causing him to bleed profusely. He succumbed to
this
injury minutes later right there at the taxi rank.
[4]
A security officer attached to J&M
Security, Gezani Samuel Makhubela (Mr. Makhubela) observed this
encounter from where he was
stationed at that taxi rank. He rushed to
the nearby police station to summon the police to the scene. The
police followed hot
on his heels to the taxi rank where they arrested
two men being Oscar Mashile (Mr. Mashile) and Mpho Surprise Mashabela
(the Plaintiff).
Circumstances that led to their arrest are subject
of dispute, and shall be dealt with shortly. Following several court
appearances,
the Plaintiff applied for bail which was opposed by
members of the Second Defendant successfully. The Plaintiff remained
in custody
until 09 November 2015, when charges against him and Mr.
Mashile were withdrawn.
[5]
By this time, the docket had been taken to
Karin Joanne Mortlock (Ms. Mortlock), a Senior Public Prosecutor
working for the First
Defendant for a decision. After giving
instructions on further investigations she required from the police,
she finally took a
decision to charge the Plaintiff with murder. This
was on 10 November 2015, a day after the charges were withdrawn in
court. She
decided not to charge Mr. Mashile. Since charges were by
then already withdrawn, the Plaintiff was summoned to appear in court
at a later stage.
[6]
After appearing in court on few occasions,
a Public Prosecutor handling the matter in court withdrew the charge
against the Plaintiff.
The said Public Prosecutor has since left the
First Defendant’s employment. According to Ms. Mortlock, since
her decision
was not reviewed by herself or any person of the same or
senior rank to hers, her decision to prosecute still stands. That
means
the Plaintiff should again be summoned to face the charge of
murder.
[7]
The Plaintiff now claims in Claim 1,
R350 000.00 against the First Respondent, being R50 000.00
in legal expenses and
R300 000.00 in damages; emanating from
malicious prosecution against him. In claim 2 which is based on
unlawful arrest and
detention, the Plaintiff claims R450 000.00
being R50 000.00 in legal costs, R350 000.00 in general
damages and
R50 000.00 in future medical expenses. The
Defendants deny being liable to the Plaintiff as they allege that the
prosecution
was not malicious and the arrest was in terms of section
40 of the Criminal Procedure Act, no. 51 of 1977 (the
Criminal
Procedure Act), and
therefore, lawful.
[8]
Trial proceeded in respect of both the
merits and the quantum, without separation. Parties also agreed that
the Plaintiff bears
the onus in proving claim 1 whereas the onus in
claim 2 was on the Second Defendant. The Defendants called two
witnesses and the
Plaintiff was the sole witness in his case.
Plaintiff also handed in evidence by an expert by way of an affidavit
with agreement
by the Defendants, in line with Rule 38(2) of the
Uniform Rules. Following is the summary of the evidence led.
[9]
Case for the Defendants.
Antony
July Mdlovu
: He is a police officer
within the South African Police Services (SAPS) holding the rank of a
Warrant Officer. He has been a police
officer for the past 23 years.
In 2015, he was a Sergeant. He was on duty at White River Police
Station on 02 May 2015 between
00h00 and 01h00, when Mr. Makhubela
walked into the Community Service Centre and reported an incident of
a man who was injured
at the taxi rank. He and Constable Mbanze then
drove to the taxi rank following behind the security motor vehicle in
which Mr.
Makhubela was in.
[10]
Upon their arrival at the taxi rank, he
observed a body of a man lying on a pool of blood, deceased. Another
man known as “Scavenger”
Edwin Chiloane (Mr. Chiloane)
was standing with Ms. Phiri next to the body. Mr. Makhubela then told
him that the deceased was injured
in a fight with two men whom he
described by the clothes they were wearing. He told him one of them
wore a black soccer jersey
with emblems of Orlando Pirates FC and the
other one wore a Scottish shirt.
[11]
As he was busy interviewing Mr. Makhubela,
Mr. Chiloane approached him and pointed to the two men who were
walking away as the men
who were fighting the deceased. He then told
Constable Mbanze to follow those men as he finished his interview
with Mr. Makhubela.
The said men were dressed in the clothes
described by Mr. Makhubela. Mr. Makhubela further told him that the
man dressed in a black
soccer jersey was the one who grabbed Ms.
Phiri while the man in Scottish shirt was the one who fought and
injured the deceased.
The man who wore a Scottish shirt is the
Plaintiff.
[12]
When he finished interviewing Mr.
Makhubela, he followed Constable Mbanze who was in the company of Mr.
Chiloane. He saw the two
men Constable Mbanze was following, a short
distance away, near where the police van was parked. Mr. Chiloane
pointed the two men
as the ones who fought and killed the deceased.
At that stage, the Plaintiff (one of the two suspects) was busy
talking to a man
seated on a driver’s seat of a taxi. He then
confronted the two men with the allegations against them and they all
said they
knew nothing about the allegations. He immediately had the
two men arrested and placed in a police van until the arrival of the
detectives, after which, they were taken to the police station for
further detention.
[13]
Under cross examination, he was confronted
with statements made by Ms. Phiri, Messrs. Chiloane and Makhubela who
in their statements
given to the investigating officer, do not allege
that they pointed out the Plaintiff to him. In response he insisted
that all
the three witnesses pointed out the Plaintiff and identified
him as the person who stabbed the deceased to death. He also
highlighted
that the Plaintiff himself gave a warning statement which
was in the docket in which he confirmed that he was pointed out by
Mr.
Chiloane. He also brought it to the court’s attention that
Ms. Phiri gave a statement in which she too confirmed that Mr.
Makhubela pointed out the Plaintiff as the culprit.
[14]
He disputed the Plaintiff’s version
put to him to the effect that he was arrested by Constable Mbanze and
another officer
unknown to him, who is not him (the witness), saying
he and Constable Mbanze were the only police officers at the scene at
the
time of the Plaintiff’s arrest. He also disputed that the
Plaintiff was arrested and placed in a police van alone, saying
he
was with another suspect named Oscar Mashile. He also disputed that
the Plantiff wore a maroon t-shirt at the time of his arrest
saying,
he wore a Scottish shirt. He however confirmed that the Plaintiff
denied any knowledge of the incident at the time of his
arrest
saying, he said he was from a nearby Engen garage. He did not see a
need to verify if he was indeed from the garage in light
of the three
witnesses who identified him and placed him at the scene of crime.
[15]
Karin Joanne Mortlock
:
She is a Public Prosecutor in the employ of the First Defendant and
has been working as such for 27 years. Seventeen of these
years were
spent as a Senior Prosecutor, a position she still held at the time
she gave evidence. The docket in this matter was
brought to her to
make a decision on whether to prosecute or not. Entries in the diary
section of the docket reflect that as far
back as 21 August 2015, she
gave instructions to the investigating officer on outstanding
investigations she wanted to be carried
out before she could take a
decision. Following further investigations conducted from the date of
arrest, she took a decision on
10 November 2015 to prosecute the
Plaintiff in the Regional Court on a charge of murder, and to
withdraw the charges against Mr.
Mashile. She took this decision
without knowledge of the developments in court as she had just the
docket at her disposal.
[16]
In taking this decision, she testified that
she considered the totality of the evidence as contained in the
docket and concluded
that there was a
prima
facie
case against the Plaintiff of
which there were reasonable prospects of success in a trial against
him. She did not know the Plaintiff
personally and she is not the
Public Prosecutor who handled the matter in court. She knew that the
charge against the Plaintiff
was at some point withdrawn by the
Public Prosecutor handling the matter in court. This was however
without her sanctioning that
decision. The Public Prosecutor in
question has since left the National Prosecution Authority (NPA). She
had no knowledge on how
far the trial could have gone against the
Plaintiff at the time she gave evidence. She however testified that
for as long as her
decision has not been reviewed, like
in
casu
; the Plaintiff will have to be
summoned and stand trial in line with her decision.
[17]
Under cross examination, she denied that
her decision to charge the Plaintiff was wrong saying there was
evidence implicating him
in the docket. It was not true, she said, to
suggest that the three eye witnesses (Ms. Phiri, Messrs. Chiloane and
Makhubela) did
not point out the Plaintiff or that they averred such
in their statements. Ms. Phiri and Sergeant Mdlovu gave statements
confirming
the pointing out of the Plaintiff by some amongst them.
She also testified that the Plaintiff himself gave a warning
statement
confirming that he was pointed out. She denied that any
such statements could be inadmissible saying, she considered all the
statements
admissible until and if they are ruled inadmissible by the
trial court.
[18]
Case for the Plaintiff.
Mpho
Surprise Mashabela
: He is the Plaintiff
in this case. At the time of his arrest he was employed as a petrol
attendant. He lost his job as a result
of being arrested in this
case. He testified that in the early hours of 02 May 2015, he was at
Joy’s place where he stayed
until they closed. He then left to
a house commonly referred to as White House, an abandoned building
belonging to Spoornet or
Railway, located in White River. He stopped
at Engen garage where he bought a pie and cigarettes. As he walked
past the taxi rank,
he saw about seven police officers. He stopped to
talk to a taxi driver that he knew, asking about the commotion there
at the taxi
rank. The taxi driver told him that someone was stabbed
there.
[19]
As he was still talking to this taxi
driver, Constable Mbanze appeared there in the company of another
police officer. That police
officer is however not W/O Mdlovu.
Constable Mbanze asked him as to where he was from and he told him
that he was from Engen garage
going to the railway house. Constable
Mbanze then shouted saying “Captain, here is another one.”
The said captain then
told Constable Mbanze to arrest him. Constable
Mbanze then placed him under arrest without explaining why he was
arresting him,
and placed him in a police van.
[20]
He testified that at the time of his arrest
he was wearing a maroon t-shirt. He was kept alone in the police van.
Later he was transported
to White River Police Station where he was
further detained. He was alone in the police van. He only met Mr.
Mashile when he was
in the police holding cell. It was when he was
explaining to the other inmates as to the reason for his arrest that
he learned
that Mr. Mashile was also arrested for that case. There
was a toilet in the cell where he was detained with others, which he
did
not use. The blankets he was given to use, smelled of urine. He
took a shower outside the holding cell where there was no privacy
as
the other inmates would be seated out there and the shower had not
door. He was however not bothered him as the other people
present
there, were men like him.
[21]
He was taken to court on Monday the 4
th
of May 2015 where the case was postponed by the Magistrate without
bail. From there, he was kept at Nelspruit prison where he stayed
in
one of the 18 prison cells. Each cell accommodated between 40 and 50
inmates. Prison cells were much cleaner than the police
holding cells
at the police station.
[22]
He only applied for bail around
September/October 2015 which was opposed by the police. Bail was
refused by the Magistrate. He remained
in custody until 09 November
2015 when charges against him were withdrawn. He was served with
summons to again appear in court
on 18 March 2016. The case was
postponed on several occasions until charges were again withdrawn due
to absence of the witnesses
on 08 May 2017. He was again served with
summons in 2020 and appeared in court before charges were again
withdrawn on 24 May 2021.
[23]
On 24 May 2024, the day on which charges
were withdrawn, Ms. Phiri and Mr. Chiloane were present in court.
Prior to him being informed
of the withdrawal, the two witnesses were
called to the front and asked by the court if they knew him (the
witness), and they answered
in negative. He does not know why they
said that as he knew them very well prior to the date of the incident
and they also knew
him. Lastly, he admitted that the signature in the
warning statement was his, but he disputed having said what was
reflected therein,
to the effect that he was pointed out by Mr.
Chiloane
[24]
He was cross examined on transcribed record
which formed part of his appearance court record from the Magistrate
Court, the contents
of which were not in dispute. In an attempt to
prove that the Plaintiff is the one who chose not to apply for bail
until he had
a legal practitioner of his choice, counsel for the
Defendants referred him to the record where the following appears:
“
2015-05-15
Accused 2:
I confirm that the rights were explained to me.
Court:
And today you still confirm that you conduct your own defence?
Accused 2:
I make an application for that Your Worship.
Ms. Mashimane: Your
Worship, if the Court may assist. Is accused 2 not the one who
mentioned on the first appearance (intervenes)
Court:
That he will never ever in his life want Legal Aid. Yes, impress upon
him that he said
so.
Accused
2: No, I
was confused by then your Worship. I make an application.”
[2]
In this action, the
Plaintiff disputed having informed the magistrate that he will never
apply for Legal Aid in his life.
[25]
Counsel
for the Defendants put it to the Plaintiff that his bail application
was heard only on 01 June 2015 and was refused on the
same date.
[3]
The Plaintiff disputed this saying his application for bail was only
heard in September or October in 2015. In an attempt to show
that
part of the reasons for denying the Plaintiff bail could be blamed on
himself, counsel for the Defendant indicated that the
residential
address he gave the police upon his arrest, which was reflected on
J15, was in Bizana Trust, which was different from
the one he gave in
his affidavit in support of the bail application which was in
Kabokweni. The Plaintiff indicated that he does
not know the address
in Bizana Trust. He acknowledged the address in Kabokweni as his.
[26]
He was confronted with evidence he
presented in the affidavit he presented in support for bail
application wherein he indicated
that at the time of his arrest, he
was self-employed, working at a car wash. He confirmed that he did
work at a car wash, but the
last time he worked there was in 2013. In
2015, he worked as a petrol attendant. He however indicated that he
lost his job as a
petrol attendant in April 2013, way before his
arrest. He could not explain why the affidavit presented by him or
his attorney
in a bail application had wrong information in this
regard. He also could not explain why in his evidence in chief, he
testified
that he was still employed as a petrol attendant at the
time of his arrest.
[27]
Before
closing the case for the Plaintiff, minutes of joint meeting between
the Clinical Psychologists for both the Plaintiff and
the Defendant
were handed in as evidence.
[4]
Contents thereof were not referred to in evidence except that the
Defendant was in agreement with the contents thereof. Contents
of the
docket that were referred to in the trial were also received as
evidence without necessarily confirming the truth of the
contents
thereof.
[28]
Issues for determination
The Plaintiff submitted
that the arrest was unlawful in that the police did not have enough
information to suggest that he committed
crimes. For the same reason,
it was also submitted that the prosecution was malicious. It was
submitted by the Defendants that
the arrest was lawful because there
was evidence that the Plaintiff committed a crime of murder, and that
the police were in terms
of
section 40
of the
Criminal Procedure Act.
The
Defendants further submitted that the decision to prosecute the
Plaintiff was taken because at that time, there was a probable cause
that he was involved in the crime of murder and the decision was not
taken maliciously, but based on evidence contained in the
docket.
[29]
The court has to decide if in arresting the
Plaintiff, the police acted lawfully and whether in taking the
decision to prosecute,
the NPA was malicious.
That
would entail deciding if the Defendants set the law in motion;
whether they acted without reasonable and probable cause; and
whether
they acted with 'malice' (or
animo
injuriandi
).
[30]
The arrest.
Relevant parts of
section
40
of the
Criminal Procedure Act provide
,
“
40.
Arrest by peace officer without warrant
(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;
…”
[31]
In
Duncan
v Minister of Law and Order
,
[5]
the Appellate Division as it was known, held as follows in
interpreting
section 40(1)(b)
of the
Criminal Procedure Act,
“
The
so-called jurisdictional facts which must exist before the power
conferred by
s 40
(1)
(b)
of the present Act may be invoked, are as follows:
(1) The
arrestor must be a peace officer.
(2) He
must entertain a suspicion.
(3) It
must be a suspicion that the arrestee committed an offence referred
to in Schedule 1 to the Act (other than
one particular offence).
(4) That
suspicion must rest on reasonable grounds.”
[32]
In
Mabona
and Another v Minister of Law and Order
[6]
,
Jones J described the level of suspicion to be entertained by a peace
officer before effecting arrest without a warrant, as follows,
“
The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically and he will not accept
it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he will allow himself
to
entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be of
sufficiently
high quality and cogency to engender in him a conviction that the
suspect is in fact guilty. The section requires
suspicion but not
certainty. However, the suspicion must be based upon solid grounds.
Otherwise, it will be flighty or arbitrary
and not a reasonable
suspicion.”
[33]
In
Biyela
v Minister of Police
[7]
,
the Supreme Court of Appeal
per
Musi AJA held,
“
[
T]he
standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not be an
unparticularised
suspicion. It must be based on specific and
articulable facts or information. Whether the suspicion was
reasonable, under the prevailing
circumstances, is determined
objectively. What is required is that the arresting officer must form
a reasonable suspicion that
a sch 1 offence has been committed, based
on credible and trustworthy information. Whether that information
would later, in a 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 sch 1 offence.
”
[34]
In
Minister
of Police v Dunjana and Others
[8]
,
Van Zyl DJP writing for the full court held,
“
[T]he
test for whether a suspicion is reasonably entertained within the
meaning of s 40(1)
(b)
is
objective. The enquiry is whether a reasonable person in the
position of the arresting officer, and possessed of the
same
information, would have considered that there were grounds for
suspecting that the arrestee committed the sch 1 offence in
question.
It is not whether the police officer believes that he has a reason to
form a suspicion, but whether objectively he had
formed a suspicion
that is reasonable. The requirement that the arresting officer must
have a suspicion, as opposed to probable
cause, implies an absence of
certainty or adequate proof. The facts or information possessed by
the arresting officer must not
be equated with evidence that will be
admissible in court. 'It must, at the outset, be emphasised that the
suspicion need not be
based on information that would subsequently be
admissible in a court of law.' It is an important distinction
that must be
kept in mind when the facts and information possessed by
the arresting officer are evaluated against the standard of
reasonableness.”
[35]
The question the court has to answer in
light of the above, is whether the arresting officer formed a
reasonable suspicion before
arresting the Plaintiff. The facts
leading to the arrest of the Plaintiff are not common cause and as
such, the court is expected
to make a finding in respect of the facts
it accepts as having been proved in light of the dispute. This would
require evaluation
of evidence and credibility finding in respect of
the witnesses. It is common cause that Sgt Mdlovu (as he then was)
was a peace
officer. It is also common cause that he arrived at the
scene and found the deceased’s lifeless body lying on the pool
of
blood at White River taxi rank.
[36]
At the heart of the dispute lies the
question as to whether anyone identified the Plaintiff to him as the
person who killed the
deceased.
Sgt Mdlovu
testified that three witnesses identified the Plaintiff as the man
who killed the deceased. The deceased disputes this
saying no one
pointed him to the police. In fact, he disputes the presence of Sgt
Mdlovu at the scene at the time of his arrest.
A finding in this
regard is crucial because that will explain if the police acted with
the required reasonable suspicion. There
is no doubt that a finding
to the effect that no one pointed out the Plaintiff to the police
would also mean that they acted without
a reasonable suspicion in
arresting him as they were not present when the crime was committed.
[37]
The court finds the evidence of Sgt Mdlovu
to be probable and in line with the undisputed facts of the case. He
and the Plaintiff
did not know each other prior to the date of his
arrest and as such, had no grudge against each other. For Sgt Mdlovu,
this was
just another day at work. He was summoned to the scene by a
security officer while at the police station going about his daily
routine duties. It would be very peculiar for him to just identify a
stranger amongst many people gathered at the taxi rank and
decide to
arrest him saying, he committed murder.
[38]
In a statement contained in the docket, Ms.
Phiri confirmed that the security officer pointed the Plaintiff as
the man who stabbed
the deceased to death. The Plaintiff’s
warning statement made to the Investigating Officer, states that he
was pointed out
by Mr. Chiloane, as Sgt Mdlovu testified. The
Plaintiff however disputes the contents of his warning statement
although he admits
to signing it. It remains for the court to decide
on what to make of his denial. It should be remembered though that
Sgt Mdlovu
is not the one who took a warning statement from the
Plaintiff; it was a different police officer who was not even there
when the
Plaintiff was arrested. This officer must have been told by
someone else as to what Mr. Chiloane did leading to the Plaintiff’s
arrest.
[39]
It is prudent at this stage to weigh the
Plaintiff’s denial in this regard. It is not just the warning
statement that Plaintiff
calls to question. He disputes much of the
contents of the court record that his legal representative was at
pains to highlight
that it was not in dispute. He disputes the date
reflected on the record of proceedings as the date on which his
application for
bail was heard. He also disputes what is alleged
therein, to wit, that he refuted the services of Legal Aid
practitioners, although
the record reflects that he admitted to
having said so saying, it was all because then, he was still
confused.
[40]
The Plaintiff did not prove to be an honest
witness even before this court, when he testified about his
employment. He claimed he
was employed as a petrol attendant and he
lost his job as a result of him being arrested. The moment he was
reminded of what he
had alleged in his affidavit in support of his
application for bail, he was quick to admit that at the time of his
arrest, he was
no longer employed. This aspect unfortunately uncovers
him as a witness who would tell the truth only when it suits him and
would
be willing to mislead the court if it would benefit him. That
unfortunately tarnishes his credibility so much that his evidence
would only be acceptable when it is not in contradiction with the
rest of the undisputed facts.
[41]
The court therefore rejects the assertion
that the Plaintiff did not tell the police in his warning statement
that he was pointed
by Mr. Chiloane. What is contained in the
Plaintiff’s warning statement is in line with the evidence
presented by the credible
witness, Sgt Mdlovu. The court also accepts
Sgt Mdlovu’s evidence that Mr. Makhubela also pointed the
Plaintiff as the man
who stabbed the deceased, as this is in line
with Ms. Phiri’s statement. With this finding, it remains for
the court to determine
if objectively viewed, Sgt Mdlovu formed a
reasonable suspicion that the Plaintiff committed a Schedule 1
offence.
[42]
Upon
his arrival, Sgt Mdlovu found a body of a deceased lying on a pool of
blood. There were many bystanders. Three people pointed
at the
Plaintiff as the person who stabbed the deceased. He expected
statements would be obtained by the Investigating Officer
from these
people as he gave their names and other details in the docket, which
was eventually done. I am of a view that any officer
in his shoes
would have formed a reasonable suspicion that the Plaintiff committed
a crime of murder. Murder is one of the offences
listed in Schedule 1
of the
Criminal Procedure Act. In
fact, failure to arrest in those
circumstances could be dereliction of duties which could lead to
successful litigation against
the police.
[9]
[43]
Sgt Mdlovu could not have anticipated then
that the witnesses who identified the Plaintiff would not say
anything about that fact
in their statements. After all he is not the
one who obtained such statements. Equally, failure by the witnesses
to aver in their
statements, that they are the ones who pointed the
Plaintiff to the police does not mean that they dispute that they
did. It follows
therefore that if Sgt Mdlovu formed a reasonable
suspicion to the effect that the Plaintiff committed a Schedule 1
offence, the
arrest that followed was sanctioned by
section 40(1)(b)
of the
Criminal Procedure Act and
was therefore lawful.
[44]
The detention that follows a lawful arrest
is equally lawful. Further detention after the appearance of the
Plaintiff in court was
sanctioned by the court. This was after the
accused chose not to apply for bail and even after he applied for
bail which was refused.
It is not for this court to determine if the
court-sanctioned detention was lawful as there is no claim against
the Minister of
Justice as would be the case in respect of such
detentions.
[45]
An
error is often made as it seems to be the case
in
casu
,
to make no distinction between the arrest and the detention ordered
by the court following such arrest. It is apposite at this
stage to
give clarity in respect of the finding in
De
Klerk v Minister of Police
[10]
which is often the source of this confusion. In
De
Klerk
,
the court had to consider
whether
the Minister of Police was liable to compensate Mr de Klerk for the
entire period of his detention following his unlawful
arrest,
including the period following his court appearance. The court
also had to consider whether the unlawful detention
of Mr. De Klerk
ceased when the magistrate ordered his further detention and whether
the magistrate’s order rendered the
subsequent harm caused by
his detention too remote (for the purposes of legal causation) from
the unlawful arrest.
[46]
What
is important for purpose of this trial is to note that the question
of the Second’s Defendant’s liability regarding
the
detention ordered by the court, is interwoven with a finding
regarding the unlawfulness of arrest. Without a finding of
unlawfulness
in the arrest, the question of liability on the Second
Defendant in respect of the detention ordered by the court does not
arise.
The liability for detention ordered by the court would thus
have to be evaluated independently. This would however be pointless
for the reason of non-joinder of the right party in respect thereto.
The claim for unlawful arrest and detention stands to be dismissed
on
those bases.
Malicious Prosecution.
[47]
The
locus
classicus
on the delictual liability of malicious prosecution is
Beckenstrater
v Rottcher and Theunnissen
[11]
which
listed the following as
the
prerequisites for a successful claim on malicious prosecution:
(
a)
the defendant set the law in motion in instigating or instituting the
proceedings;
(b)
the defendant acted without reasonable and probable cause;
(c)
the defendant acted with malice or
animus
injuriandi
;
(d)
the prosecution has failed; and
(e)
the plaintiff has suffered damages.
These
requirements
are
distinct and independent from those in unlawful arrest. They have
been restated with approval in various decisions of the Supreme
Court
of Appeal including recently in
Ledwaba
v Minister of Justice and Constitutional Development and Correctional
Services and Others.
[12]
[48]
In casu
,
there is no dispute in respect of requirements (a), (d) and (e). The
dispute lies in requirements (b) and (c). Ms. Mortlock, a
Senior
Prosecutor with a total of 27 years’ experience as a public
prosecutor, testified that she did not know the Plaintiff
in this
matter and that she took a decision to prosecute him guided only by
the facts as contained in the docket.
[49]
She testified further that upon considering
the contents of a docket as a whole, it was clear to her that there
was only one person
implicated in the stabbing of the deceased who
was only described by the clothes he was wearing and by his height
compared to his
co-accused. The other man who was arrested with the
perpetrator was not involved in a fight with the deceased as he was
busy pulling
the deceased’s girlfriend at the time. All she
needed was a clarity on who of the arrested men, wore a Scottish
shirt. Once
a statement was obtained clarifying that the man who wore
a Scottish shirt was the Plaintiff, and that the man who wore the
black
soccer jersey was Mr. Mashile, she took a decision to drop the
charges against Mr. Mashile and to prosecute the Plaintiff.
[50]
According to Ms. Mortlock, there was a
prima facie
case for the Plaintiff to answer and there were reasonable prospects
of success in the prosecution. Of further importance in her
evidence
is that her decision to prosecute has not been reviewed by a person
of equal or higher rank which means, the Plaintiff
still has to be
prosecuted. For this reason, the court asked the legal
representatives to answer the question on whether the requirement
under (e) above, that the prosecution must have failed was met. This
was in light of the fact that there had not been a trial in
which the
Plaintiff was acquitted, or a final decision taken by an authorised
person to withdraw the charge against him. I will
not pursue this
question any further since counsel for the Defendants conceded that
in withdrawing charges against the Plaintiff
(irrespective of the
lack of authority to do so by the relevant officer within the NPA);
the prosecution should be considered as
having failed.
[51]
The
Defendant’s argument was that it acted with probable cause in
that a person was murdered and witnesses pointed at the
Plaintiff as
the murderer. In
Ledwaba
v Minister of Justice and Constitutional Development and Correctional
Services and Others
[13]
,
the Supreme Court of Appeal held,
“
[A]
lthough
our law requires that the defendant must have acted with malice or
animus
injuriandi
,
that question will only become relevant when it is established that
the defendant instigated the prosecution without reasonable
and
probable cause. The latter issue is anterior to the question of
whether the defendant acted with
animus
injuriandi
.
To succeed on this leg of the enquiry, a plaintiff must not only
prove intent to injure but also consciousness of wrongfulness.
As
held by this Court in
Moleko
,
animus
injuriandi
‘means that the defendant directed his or her will to
prosecuting the plaintiff in the awareness that reasonable grounds
for the prosecution were absent’.
[14]
It follows from this that the determination of whether a defendant
had reasonable and probable cause to prosecute the plaintiff,
must
precede the determination into whether it acted with
animus
injuriandi
.”
[52]
On
the aspect of a reasonable cause, Schreiner JA said the following in
Beckenstrater
[15]
,
“
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff's guilt, a subjective element
comes
into play and disproves the existence, for the defendant, of
reasonable and probable cause.
[53]
There
would, thus, be reasonable and probable cause for the prosecution
where a defendant is of the honest belief that the facts,
available
at the time of taking the decision to prosecute the plaintiff,
constituted
an offence which
would lead a reasonable person to conclude that the person against
whom charges are brought, was probably guilty of such offence.
This
question must not be confused with whether there is sufficient
evidence upon which the accused may be convicted. That question
would
ultimately be for the court, in the criminal trial, to decide at the
conclusion of the evidence
.
[16]
[54]
With the above on the background, it should
be remembered that the Public Prosecutor who took a decision to
withdraw the charge
against the Plaintiff, must have been informed by
the later developments which were not in the docket when the decision
to prosecute,
was taken. The developments being what the witnesses
told the court that day before charges were withdrawn. The Plaintiff
testified
that Mr. Chiloane and Ms. Phiri were called to the front
and were each asked if they knew him. They indicated that they did
not
know him, and the Public Prosecutor withdrew charges against him.
[55]
It would appear from the Plaintiff’s
version that when the two told the court that they did not know him,
they were not telling
the truth as according to him, they knew each
other well at the time. After all, on the night of the murder, Ms.
Phiri in her statement
gave details on how she ran in the middle of
the night to call her brother at the old railway house (the white
house), which was
the same house Plaintiff was headed to sleep there,
that night. In my view, this makes the Plaintiff version to the
effect that
he and these witnesses knew each other to be probable.
[56]
At the time that the decision to prosecute
was taken by Ms. Mortlock, she could not be expected to have foreseen
that the witnesses
will later tell the court that they did not know
the Plaintiff as it was not in their statements. Equally, nowhere in
the statements
did Ms. Phiri, Messrs Chiloane and Makhubela refute
the allegation to the effect that they identified the Plaintiff as
the man
who stabbed the deceased. I therefore do not see how it can
be argued that there was no probable cause to charge the Plaintiff or
that the decision to prosecute was taken with malice.
[57]
There is no basis therefore to suggest that
when Ms. Mortlock took a decision to prosecute, she did not believe
that the Plaintiff
was guilty of the crime of murder. While it
remains strange as to why Ms. Phiri and Mr. Chiloane would later say
that they did
not know the Plaintiff, it is not uncommon in criminal
matters for witnesses to recant their statements for various reasons,
leading
to charges being withdrawn. Chief amongst the reasons would
be fear for their own safety, especially when the suspect is released
on bail or on warning, as was the case with the Plaintiff at the
time.
[58]
Before apportioning any blame to these
witnesses, one needs to remember that these two witnesses gave
details in their respective
statements, of how they were violently
attacked on the night of the incident. Ms. Phiri gave details of how
Mr. Mashile, the erstwhile
co-accused of the Plaintiff, tried to pull
her away from her lover, the deceased. Mr. Chiloane on the other
hand, narrated on how
Mr. Mashile, punched him with a fist when he
was trying to find out from Ms. Phiri as to what happened that night.
What the witnesses
told the court on the date the charge was
withdrawn is irrelevant.
Whether there was
reasonable and probable cause for the prosecution depends on the
facts at the disposal of the prosecutor, at the
time that the
prosecution was instigated, and the careful assessment of that
information, without added developments in the case.
[59]
For the reasons above, I find that there
was a probable cause for the decision to prosecute the Plaintiff at
the time the decision
was taken. I further find that the decision to
prosecute him was not taken maliciously. This claim is also bound to
fail.
[60]
There is no reason advanced as to why costs
should not follow suit.
[61]
For the aforesaid reasons, I make the
following order:
The plaintiff’s
claims are dismissed with costs.
_________________
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
MPUMALANGA DIVISION
MBOMBELA
FOR THE PLAINTIFF:
ADV. AC GOBETZ
INSTRUCTED BY: PIETER
NEL ATTORNEY INC
MBOMBELA
FOR THE 1
ST
& 2
ND
DEFENDANTS: ADV. T
MODISENYANE
INSTRUCTED BY:
STATE ATTORNEYS PRETORIA
C/O
QQ MKHATSWA ATTORNEYS INC
DATES HEARD:
05-08 FEBRUARY 2023
HEADS OF ARGUMENT
SUBMITTED
ON: 23
FEBRUARY
2024
JUDGMENT
DELIVERED: 07 MARCH 2024
[1]
Mohamed
CJ in
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5A-C.
[2]
See
p, 326 of the paginated bundle ln 2-12.
[3]
See
p. 370-386 of the paginated bundle.
[4]
See
p. 447-450 of the paginated bundle.
[5]
1986
(2) SA 805
(A) at 918G-H.
[6]
1988
(2) SA 654
(SE) at 658G-H.
[7]
2023
(1) SACR 235
(SCA) at para 34-35.
[8]
2023
(2) SACR 486
(ECM) at para 16.
[9]
See
for example
AK
v Minister of Police
2023
(2) SA 321 (CC).
[10]
2020
(1) SACR 1 (CC); 2021 (4) SA 585 (CC).
[11]
1955
(1) SA 129
(A) at para 5 & 27.
[12]
(947/2022)
[2024] ZASCA 17 (16 February 2024)
at para 20. See also
Groenewald
v Minister of Justice
1973
(2) SA 480
(O) and
Minister
of Justice and Constitutional Development and Others v Moleko
2009
(2) SACR 585
(SCA)
para
8
[13]
Supra
at para 20,
[14]
Moleko
para
63 citing Neethling, JM Potgieter & PJ Visser
Neethling’s
Law of Personality
2 ed (2005) p181.
[15]
Supra
at p.136
[16]
See
Ledwaba
v Minister of Justice and Constitutional Development and
Correctional Services and Others - supra
at
para 23
.