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[2024] ZAGPPHC 574
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National Director of Public Prosecutions v Ntjinga (11580/2016) [2024] ZAGPPHC 574 (21 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
11580/2016
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE: 21 June 2024
SIGNATURE:
In
the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
(2
nd
Defendant
in the action)
and
SIMON
NTSIKELELE NTJINGA
Respondent
(Plaintiff in the
action)
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
INTRODUCTION
[1] The applicant
requests leave to appeal against the judgment and order of this court
handed down on 16 April
2024, in respect of this court’s
finding that the applicant’s prosecution of the respondent was
malicious.
[2] The application
is more particularly in respect of the court’s finding that the
first requirement for
a successful claim based on malicious
prosecution, to wit, setting the law in motion, is not confined to
the decision to charge
an accused, but includes a decision to
prosecute the accused, i.e. to proceed to trial.
[3] Mr van Zyl SC,
counsel for the applicant, submitted, with reference to
Woji v
Minister of Police
2015 (1) SACR 409
SCA, that a decision to
proceed to trial and to persist with the trial (prosecution) is a
breach of a public law duty and is a
different cause of action than
malicious prosecution. The relevant finding reads as follows:
“
[28]
The Constitution imposes a duty on the state and
all of its organs not to perform any act that infringes
the
entrenched rights, such as the right to life, human dignity and
freedom and security of the person. This is termed a public
law duty.
See C Carmichele v Minister of Safety and Security and Another
(Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2002
(1) SACR 79
CC
(2001 (4) SA
938
;
2001 (10) BCLR 995
;
[2001] ZACC 22)
para 44. On the facts of
this case, Insp Kuhn, a policeman in the employ of the state, had a
public law duty not to violate Mr
Woji's right to freedom, either by
not opposing his application for bail, or by placing all
relevant and readily available
facts before the magistrate. A breach
of this public law duty gives rise to a private law breach of Mr
Woji's right not to be unlawfully
detained, which may be compensated
by an award of damages. There can be no reason to depart from the
general law of accountability,
that the state is liable for the
failure to perform the duties imposed upon it by the
Constitution, unless there is a compelling
reason to deviate from the
norm. Mr Woji was entitled to have his right to freedom protected by
the state. In consequence, Insp
Kuhn's omission to perform his public
duty was wrongful in private law terms. See Minister of Safety and
Security and Another v
Carmichele
2004 (3) SA 305
(SCA)
(2004 (2)
BCLR 133
;
[2003] 4 All SA 565)
paras 34 – 38 and 43.”
[4] On the strength
of the aforesaid finding, the Supreme Court of Appeal held that
Woji’s
detention was unlawful. The finding does not
support Mr Van Zyl’s submission that the breach of a public law
duty creates
a different cause of action. To the contrary, the court
found that the breach of the public law duty in the
Woji
matter
sufficed for a finding that
Woji
was unlawfully detained.
[5] Ms Hartman,
counsel for the respondent, submitted that setting the law in motion
includes the decision to
prosecute an accused. In support for this
submission Ms Hartman relied on the full bench judgment in
Director
of Public Prosecutions, Western Cape v Khumalo; Khumalo v Minster of
Police
(A102/2022)
[2022] ZAWCHC 172
(5 September 2022), in which
the court held as follows at para [92]:
“
[92] There
is no dispute that the first requirement was met. It is clear that
after his arrest the respondent was
arraigned before the magistrate’s
court, and thereafter the matter was transferred to the regional
court, thereby setting
the law in motion by instituting a prosecution
against the respondent.”
[6] I agree with Ms
Hartman that the aforesaid finding supports the court’s finding
that setting the law
in motion includes a decision to prosecute an
accused.
[7] The further
ground of appeal is directed at the court’s finding that Ms
Germishuis acted with the necessary
animus injuriandi
in the
form of
dolus eventialis
. Having considered the factual
evidence informing the aforesaid finding, I am of the view that the
appeal on this ground does not
have a reasonable prospect of success.
[8] In the result
the application stands to be dismissed with costs following the
cause.
ORDER
1.
The application for leave to appeal is
dismissed.
2.
The applicant is ordered to pay the costs
of the application.
JANSE VAN NIEUWENHUIZEN, J
JUDGE OF THE HIGHT COURT
GAUTENG DIVISION, PRETORIA
DATES HEARD:
20 June 2024
DATE DELIVERED
21 June 2024
APPEARANCES
For the Applicant:
Advocate D Van Zyl
SC
Instructed
by:
State
attorney, Pretoria
For
the Respondent:
Advocate
N Hartman
Instructed by:
Taute Bouwer &
Cilliers Inc