About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 45
|
|
Makamu and Others v Minister of Police (1359/2017; 1360/2017; 1361/2017) [2024] ZAMPMBHC 45 (11 July 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION:
MBOMBELA MAIN SEAT
CASE NO: 1359/2017
1360/2017
1361/2017
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
11/07/2024
SIGNATURE
In
the matter between:-
MPENDULO
MAKAMU
(1359/2017)
PLAINTIFF
SONENI
VUSI MHLABANE
(1360/2017)
PLAINTIFF
ABBSEY
HASWELL NKOSI
(1361/2017)
PLAINTIFF
AND
MINISTER
OF POLICE
DEFENDANT
JUDGMENT
VUKEYA
J
This
judgment is handed down electronically by circulation to the parties’
legal representatives by email, the date and time
for the hand-down
is deemed to be 12h00 on 11 July 2024.
INTRODUCTION
[1]
The three plaintiffs under cases 1359/2017; 1360/2017 and 1361/2017
were arrested by members of the
defendant in one incident on 8
November 2013. They then sued the defendant separately for damages
suffered as a result of the arrest.
It was alleged by the defendant
that they had committed the offences of Murder, Robbery and
Housebreaking with intent to commit
an offence.
[2]
When the trial commenced on 29 January 2024, the parties brought to
the attention of the court that
an order for the consolidation of the
three actions instituted against the defendant under the
aforementioned case numbers was
granted on 10 December 2018. They
then requested the court to proceed on trial in the matter involving
Mr Mpendulo Makamo and that
the outcome of the trial will be binding
on the actions instituted by Mr Abbsy Nkosi and Mr Soneni Mhlabane
under case numbers
1360/2017 and 1361/2017, respectively.
[3]
The parties also brought an application for the separation of the
issues of merits and quantum. This
application was granted and the
trial proceeded only on the merits. The issue of quantum was
postponed
sine die
pending the outcome of the trial on the
merits. I further indicated that I would include an order in this
judgment that the outcome
of this trial shall be binding on the other
matters.
[4]
The trial then proceeded on the merits. The defendant relied on the
evidence of Lieutenant Colonel
Pilusa (“Pilusa”) although
the arresting officer involved in arresting the three plaintiffs was
Constable Sibiya. It
was established that Sibiya and the officers he
was with when the arrests were effected have since passed on.
[5]
The claim against the defendant is for unlawful arrest and detention;
unlawful assault and malicious
prosecution. The plaintiffs allege
that the arrest effected on them on 8 November 2013 and the
subsequent detention were unlawful.
They further allege that they
were also unlawfully assaulted by members of the defendant while in
their custody. According to the
plaintiffs, they were charged and
maliciously prosecuted for the abovementioned offences which were
later withdrawn by the NPA
on 20 January 2015.
[6]
According to the defendant, as submitted by Counsel at the beginning
of the trial, the arrest was justified
by the fact that the police
officer who effected the arrest had reasonable suspicion to do so. He
had information at his disposal
that warranted or merited that the
plaintiffs be arrested without a warrant of arrest. As the
arresting officers were not
alive to give evidence. Retired Colonel
Mohale Reuben Pilusa of the SAPS testified on behalf of the defendant
that in 2012 he was
based in Tonga with the rank of Leutenant
Colonel. In the early hours of the morning at approximately 4:00 on 8
November 2013 he
received a call from the Community Service Centre
informing him that a member of the defendant has been attacked and
killed at
Langeloop Trust at his residence.
[7]
He went to the scene and on arrival, it was confirmed that a member
of the SAPS had been shot and killed.
He had to make sure that the
crime scene is secured and cordoned off. He also had to summon
experts to conduct an investigation
of the crime scene. While busy
with the experts, he received information that there was a suspect
who might be implicated in the
murder and that the police were going
to investigate further. These members left the scene to go and
interview the suspect. Constable
Sibiya was one of the members who
went to interview the suspect.
[8]
The suspect was the plaintiff Mr Mpendulo Makamu. According to
Pilusa, although he was not present
when this happened, Sibiya
interviewed the plaintiff Mr Makamu and based on the information
accruing from the interview, Sibiya
and his crew then left for
Matsulu to follow up on the information provided by Makamu. It came
out from the interview that Mantinti
Ngomane; Absalom Nkosi and Vusi
Mhlabane came to see Makamu in the early hours of the 8
th
of November 2013 and it was also mentioned that a 9MM Pistol which
was in the possession of Mantinti was placed in an air cleaner
before
the three left for Matsulu
[9]
On the members’ arrival in Matsulu they traced the vehicle at
the car wash in Matsulu, a VW Jetta.
The police were able to trace
Absalom Nkosi and Vusi Mhlabane and arrested them. They could however
not trace Mantinti. The police
then drove back to Tonga where Makamu,
Nkosi and Mhlabane were detained. A criminal case proceeded against
Makamu, Absalom and
Vusi in the absence of Mantinti. Mantinti was
later arrested in Watervalboven and the fire-arm was confiscated.
Constable Sibiya
from K9 unit effected the arrest of these three
suspects in Matsulu, as testified by Pilusa.
[10]
Pilusa told the court that the police had information that on the 7
th
of November 2013, Mantinti, Vusi and Absalom Nkosi came from Matsulu
and went to sleep in Bosfontein. In the early hours of the
8
th
November 2013, they went to Makamu’s place to visit him. Makamu
resides a few meters away from the residence of the policeman
who was
killed that morning. It was discovered around that time that the
police officer had been shot and killed. The three were
said to have
driven back to Matsulu after concealing the 9MM in the air cleaner.
Members of the defendant, according to Pilusa
went to the tollgate
and obtained photographs confirming that the three passed the
tollgate when going to Matsulu and also confirming
the time when they
passed the toll-gate. That is how they proceeded to arrest the
plaintiffs.
[11]
Pilusa further testified that, one day while in his office, he was
informed that Mantinti wanted to speak
to him. When Mantinti was
brought to his office he told him that a certain person who was in
detention wanted to see him. The young
man who asked to see him was
brought to his office and he had a discussion with him. The young man
confessed to him that he was
the one who shot the police officer. The
investigations proceeded. He was prepared to make a confession and
arrangements were made
for him to make a confession. The real killers
of the police officer were arrested based on the information provided
in the confession
and the charges against Makamu; Mantinti; Nkosi and
Mhlabane were withdrawn after Pilusa gave a statement exonerating
them from
the charges. According to Colonel Pilusa, the plaintiff and
his accomplices were not assaulted in his presence and no reports
were
made that the plaintiffs may have been assaulted in his absence.
[12]
It was put to Col Pilusa that the plaintiffs were taken to offices at
Tonga Police Station where they were
interrogated and assaulted. In
the room where they were assaulted there were two crowbars anchored
on tyres and a pole from where
the crowbars were hanging. It was
alleged that the plaintiffs were made to have their feet holding on
to the pole, hanging upside
down while they were assaulted.
They were assaulted with bare hands and sometimes suffocated. Col,
Pilusa vehemently denied
the allegations and stated that nothing of
that sort happened in his presence neither did it happen in his
absence. It was further
alleged that they were also kicked with
booted feet and electrocuted and forced to admit to the allegations
of murder. Col. Pilusa
again denied these averments saying there was
no entry of them being detained with injuries in the Occurrence Book.
He further
stated that the plaintiffs would reasonably be expected to
report the assault when they made their first appearance in court but
nothing of that sort happened.
[13]
Mpendulo Makamu’s evidence was that he was arrested on 8
November 2013 by the police from Tonga Police
station before 7 am.
When he was arrested he was in a motor vehicle on the road driving
with his uncle Safa Jeffrey Makamu. He
was heading to the plantations
when the police stopped the vehicle looking for him. They first
greeted his uncle and told him they
were looking for him. His uncle
asked what he did but they told him not to interfere. They then took
him into the police vehicle.
They took him to the house where a
policeman had been killed. The police assaulted him with open hands
before they took him to
the scene. There were many people at the
scene, the place had been cordoned off. The vehicle stopped at the
gate and the police
went inside leaving him in the car. When they
returned they were with other police officers.
[14]
The police questioned him, asking why he killed the policeman. He
denied the allegations but the police
said they were aware that he
had visitors in the morning. They asked him where those visitors were
and where were they from. He
told the police that they were from
Matsulu and that they had left. They enquired why they were there and
he explained they had
come to greet him and that one of them was
there to check his furniture which was at his place. The police asked
whether these
people had a fire-arm and he confirmed that he had seen
them in possession of a fire-arm which they put in the engine
compartment
of the car before they left.
[15]
Mr Makamu testified that he told the police that he does not know
where they reside in Matsulu but explained
that I know where
Mantinti’s girlfriend resides in Bhevula. They also took the
girl with and went to Matsulu. They drove
around searching for the
vehicle and when he saw it at the car wash he notified the police.
Nkosi and Mhlabane were arrested on
that day but not Mantinti as the
police could not trace him. They were then taken to Tonga Police
station where they were charged
with murder of the policeman.
[16]
Makamu said that when he was arrested he was not given his rights or
told what his charges were. He
was not even given an
opportunity to explain his side of the story. Soneni and Absalom were
also not given their rights. At Tonga
Police station they put Absalom
in a well laminated cell with people inside while he was put with
Soneni in a dark cell with an
overflowing toilet. They were taken to
a park-home for interrogation. They were asked about the murder of
the police officer, when
they denied the allegations the police told
them they were lying and started assaulting them. His body was hung
upside down. The
police also suffocated him by covering his face with
a plastic bag and also used an electric wire to hit him and slapped
him several
times. After a while they took him back to the cell.
[17]
Bail had not been granted at that stage, and when it was granted he
was able to pay it. After bail was granted
he never went back to
court, he was informed while he was at home to go to court to collect
his bail. He went to get his bail money.
Of the police who assaulted
him he knows Pilusa, Bhembe, Simelane and does not know the rest.
During cross examination,
Mr Mpendulo Makamu told the
court that he was not aware of the fact that the police were able to
make a breakthrough in the murder
case because of some assistance
from Mantinti. He told the court that he does not know why his
particulars of claim do not clearly
describe the manner in which he
was assaulted by the police, for example it was not alleged in his
evidence in chief that he was
hit on the head with an iron bar.
[18]
Mr Safa Jeffrey Makamu, the plaintiff’s uncle confirmed
Makamu’s version of the arrest and said
the plaintiff was
arrested while he was in his presence on the day. He said while
driving to his fields with Mpendulo, he came
across the police who
stopped his car and demanded to have the plaintiff. When he asked
what was going on they told him not to
ask anything and took the
plaintiff with them.
[19]
It is c
ommon cause in this trial that the
plaintiffs were arrested by members of the defendant without a
warrant of arrest on 8 November
2013; they were detained on the same
date subsequent to their arrest; Mr Mpendulo Mkamu was released on
the 3
rd
of May 2014 when he paid bail in the amount of R2000, 00; the
arresting officer Constable Sibiya passed away; the plaintiffs were
charged with the murder of a police officer who had been killed at a
street near the Makamu’s residence.
[20]
It is also common cause that the three were also
charged with housebreaking with intent to commit a crime
and robbery;
all the charges against them were withdrawn by the state on the 20
th
of January 2015 and that other people were later charged and
convicted of the offence after it was discovered that the plaintiffs
were not involved in the commission of the offence. It is also not in
dispute that Nkosi, Mhlabane and Mantinti went to visit Makamu
at his
place of residence in the morning of the 8
th
of November
2013.
[21]
The issues for determination in this trial are
very crisp and can be listed as follows:
1.
Whether the arrest and subsequent
detention of the three plaintiffs was lawful;
2.
Whether they were assaulted by the
police at any time from time of arrest and while in detention; and
3.
Whether they were maliciously
prosecuted.
[22]
Despite the fact that Counsel for the plaintiffs
submitted that it was never the defendant’s case
that the
arrest was based on reasonable suspicion, he argued that even so, the
defendant has failed to discharge the onus of proving
that the arrest
and detention were lawful. This because the witness for the
defendant, Col. Pilusa was not the arresting officer.
The arresting
officer Constable Sibiya has since passed away and could not testify
in the trial.
[23]
Col. Pilusa, according to Counsel, did not know
the reason why Constable Sibiya arrested the Plaintiffs,
he also did
not know whether Constable Sibiya based his reasons for arresting the
plaintiffs on reasonable suspicion or not. It
was further argued that
Col. Pilusa did not know whether the plaintiffs’ rights were
given to them by Const. Sibiya at the
time of their arrest. Col
Pilusa is also not in a position to dispute the plaintiff’s
version that he was not given
a chance to explain his side of the
story as he was not present when the plaintiff was arrested, the
plaintiff submits.
[24]
Regarding the claim for assault, it was submitted
that because Mr Makamu was able to mention the place and
premises
where the assault took place, the existence of which was not denied
by Col. Pilusa, his evidence is probable. The plaintiff
further
submits that he has successfully proven the necessary prerequisites
for malicious prosecution because they were charged
and the charges
were later withdrawn by the prosecutor. The charges, according to the
plaintiff, were influenced by misinformation
and the defendant could
not, under the surrounding circumstances of the case, have reasonably
believed that the prosecution would
be successful.
[25]
Counsel referred, in the plaintiff’s heads,
to the case of Rudolph v Minister of Safety and Security
and Another
2009 (5) SA 94
(SCA) wherein the court held that:
“
The
requirements for successful claims for malicious prosecution have
most recently been discussed in Minister of Justice &
Constitutional Development v Moleko ([2008] All SA 47 (SCA)) as
follows:
‘
In
order to succeed (on the merits) with a claim for malicious
prosecution, a claimant must allege and prove ─
1.
that
the defendants set the law in motion (instigated or instituted the
proceedings);
2.
that
the defendants acted without reasonable and probable cause;
3.
that
the defendants acted with “malice” (or animo
injuriandi); and
4.
that
the prosecution has failed.’
[26]
On the other hand, the defendant’s submission is that the
plaintiffs were arrested by its members
after being reasonably
suspected of having committed a schedule 1 offence. Starting with the
alleged assault on the plaintiffs,
the defendant’s Counsel
submitted that the plaintiffs were failed to discharge the onus which
rested on them to prove the
assault claim. He averred that the
plaintiff had to present facts which indicate,
prima facie
and
objectively, a wrongful act. Relying on the case of
Kali v
Incorporated General Insurance Limited
1976 (2) SA 179
(D)
Counsel for the defendant contended that: “
a pleader cannot
be allowed to direct the attention of the party to the issue and then
at the trial attempt to canvass another “
[27]
The defendant’s contention is based on the fact that the
plaintiff did not disclose or describe fully,
the manner in which he
was allegedly assaulted by members of the defendant in his
Particulars of Claim. He referred the court to
the case of
Minister
of Safety and Security v Slabbert (668/2009)
2009 ZASCA 163
in
which it was stated that:
“
The
purpose of the pleadings is to define the issues for the other party
and the court. A party has a duty to allege in the pleadings
the
material facts upon which it relies. It is impermissible for a
plaintiff to plead a particular case and seek to establish a
different case at the trial.
2
It
is equally not permissible for the trial court to have recourse to
issues falling outside the pleadings when deciding a
case.”
[28]
The defendant submitted that the plaintiffs’
particulars of claim allege that he was assaulted with
open hands;
hit with an iron bar on their heads; kicked with booted feet and
suffocated with a plastic bag. Whereas, in court Mr
Makamu testified
that his hands and feet were bound together and an iron bar which was
attached to a tyre rim, one on each side,
was placed between their
feet and hands and that they hung with their feet while their heads
were facing down. According to the
defendant this version defers
materially with the version contained in the plaintiffs’
particulars of claim. The defendant
therefore submits that the claim
for assault came as an afterthought to the plaintiffs as it is also
no referred to in the plaintiff’s
Section 3 Notice and this
indicates that the plaintiffs were never assaulted.
[29]
The defendant submits further that the plaintiffs,
in order to succeed with a claim for malicious prosecution
have to
allege, other than what was stated in
Minister of Justice &
Constitutional Development v Moleko ([2008] All SA 47 (SCA,
that
the police were actively instrumental in the prosecution of the
charges. It referred the court to
Laderman v Moharal Investments
(Pty) Ltd
1969 (1) SA 190
(A.D)
in which the case of
Waterhouse
v Shields
1924 CPD 155
was referred to with approval. Counsel
therefore submits in the defendant’s heads of argument that it
cannot be said that
Constable Sibiya did not have the
reasonable and probable cause in taking the plaintiffs into custody
and that he acted with
the required
animus.
The defendant
submits that the plaintiffs carried and conducted themselves as
suspects on the morning of the 8
th
of November 2013. They
have failed to prove the requirements of the absence of reasonable
and probable cause not the necessary
animus injuriandi,
the
defendant submitted.
Unlawful
arrest and detention
[30]
The legal principle that arrest and detention are prima facie
wrongful and unlawful can be found in numerous
decisions in our law.
In
Minister of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A),
it was stated as follows:
“
The plain and
fundamental rule is that every individual’s person is
invaluable. In actions of damages for wrongful arrest
or imprisonment
our courts have adopted the rule that such infractions are prima
facie illegal. Once the arrest or imprisonment
has been admitted or
proved, it is for the defendant to allege and prove the existence of
grounds in justification of the infraction”
[31]
In
Mahlangu
and Another v Minister of Police
2021
(2) SACR 595
(CC)
the
court stated that:
“
It
is also trite law that in a case where the Minister of Safety and
Security (as defendant) is being sued for unlawful arrest and
detention and does not deny the arrest and detention, the onus to
justify the lawfulness of the detention rests on the defendant
and
the burden of proof shifts to the defendant on the basis of the
provisions of s 12(1) of the Constitution . . . . These provisions,
therefore, place an obligation on police officials, who are bestowed
with duties to arrest and detain persons charged with and/or
suspected of the commission of criminal offences, to establish,
before detaining the person, the justification and lawfulness of
such
arrest and detention.
This,
in my view, includes any further detention for as long as the facts
which justify the detention are within the knowledge of
the police
official. Such police official has a legal duty to inform the public
prosecutor of the existence of information which
would justify the
further detention. Where there are no facts which justify the further
detention of a person, this should be placed
by the investigator
before the prosecutor of the case, and the law casts an obligation on
the police official to do so. In Mvu
v Minister of Safety and
Security and Another Willis J held as follows:-
"It
seems to me that, if a police officer must apply his or her mind to
the circumstances relating to a person's detention,
this includes
applying his or her mind to the question of whether detention is
necessary at all."
It
goes without saying that the police officer's duty to apply his or
her mind to the circumstances relating to a person's detention
includes applying his or her mind to the question whether the
detention is necessary at all. This information, which must have
been
established by the police officer, will enable the public prosecutor
and eventually the magistrate to make an informed decision
whether or
not there is any legal justification for the further detention of the
person
.
[32]
Section 12 of our Constitution (Act 108 of 1996) guarantees every
citizen’s right to freedom and it
provides as follows:
12. Freedom and
security of the person –
(1)
Everyone has the right to freedom and security of the person,
which includes the right –
(a)
Not to be deprived of freedom arbitrarily or without just
cause;
(b)
…
[33]
Section 40
of the
Criminal Procedure Act 51 of
1977
however, authorises the arrest of a person without a warrant
under different circumstances.
Subsection
40(1) (b) of the
Criminal Procedure Act 51 0f
1977 reads as follows:
“
A
peace officer may, without warrant, arrest any person whom he
reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from custody.”
[34]
The jurisdictional prerequisites for a subsection
40(1) (b) defence are that: 1) The arrestor must be a
peace officer;
2)
The
arrestor must entertain a suspicion;
3)
The suspicion must be
that the suspect committed an offence referred to in Schedule 1; and
4)
The
suspicion must rest on reasonable grounds. (See
Minister
of Safety and Security v Sekhoto and Another
2011 (5) SA 467
(SCA)).
[35]
In Heimstra’s
Criminal
Procedure
,
the learned author, with reference to
the
Sekhoto
case
(supra)
summarises
the law pertaining to arrest without a warrant as follows: The
jurisdictional prerequisites for subsection 40(1)(b)
must be present;
The arrestor must be
aware that he or she has a discretion to arrest;
he or she
must
exercise that discretion with reference to the facts; there is no
jurisdictional requirement that the arresting officer should
consider
using a less drastic measure than arrest to bring the suspect before
court.
[36]
It has been established in
casu
that
Const. Sibiya was a member of the defendant and the arresting officer
of the plaintiffs. There is no dispute regarding the
fact that he was
a peace officer when the arrests were effected. It is also common
cause that Col. Pilusa, the defendant’s
witness, did not arrest
the plaintiffs, however, he was the Branch Commander of the
Detective’s Unit at Tonga Police Station
at the time. Although
he was at the scene of crime soon after the incident happened, he
told the court that
while he was
busy with the experts at the scene, he received information that
there was a suspect and that the police were going
to investigate
further. Constable Sibiya and other members left the scene to go and
interview the suspect. Constable Sibiya is
the one who interviewed
the suspect and eventually effected the arrest of the plaintiffs.
[37]
The arrest itself, the circumstances surrounding the arrest of the
plaintiffs and the question whether the
plaintiffs’ rights were
explained when they were arrested are not within the personal
knowledge of the witness, Col Pilusa.
His testimony regarding these
three issues was hearsay evidence.
Hearsay
evidence is generally inadmissible. The Law of Evidence Amendment
Act
45 of 1988
(
LEAA)
redefined hearsay to mean ‘
evidence,
whether oral or in writing, the probative value of which depends upon
the credibility of any person other than the person
giving such
evidence’
.
In this case, the person upon whose credibility the probative value
of the evidence depends on is Const. Sibiya. Constable Sibiya
could
not be called as a witness and it was reported that he has since
passed on.
[38]
Although Col. Pilusa was confronted, during cross
examination, about a statement which is purported to have
been
prepared by Const. Sibiya, this statement was not admitted as
evidence in terms of section 3 of the Act 45 of 1988 (LEAA)
and
therefore every part of that statement becomes inadmissible as
hearsay evidence in this trial. This therefore means that the
court
remains with the evidence of Col Pilusa which is also, mostly hearsay
evidence especially on the issues of more importance
in the
adjudication of this matter.
[39]
Having established that Col Pilusa was not the
arresting officer, it is rather difficult to establish whether
Const.
Sibiya
entertained a
suspicion that the plaintiffs committed an offence referred to in
Schedule 1 and whether the suspicion rested on reasonable
grounds.
The meaning of “suspicion” within the
context of section 40 was clearly explained in
Koekemoer v
Minister of Police
(unreported, GP case no 9326/2015, 10 March
2017) and the court cited (at [13]) the definition set out in
Shabaan
Bin Hussein & others v Chong Fook Kam & another
[1969] 3
All ER 1626
(PC) at 1630 as follows:
“
Suspicion in
its ordinary meaning is a state of conjecture or surmise where proof
is lacking: “I suspect but cannot prove”.
Suspicion
arises at or near the starting point of an investigation of which the
obtaining of prima facie proof is the end.”
[40]
In
Minister
of Police v Dunjana and Others
[2023]
1
All SA 180
(ECG);
2023
(2) SACR 486
(ECM) (25 October 2022) Van Zyl DJP, as he then was, stated that:
“
The
requirement that the arresting officer must have a suspicion, as
opposed to probable cause, implies an absence of certainty
or
adequate proof. “The 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”. 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 is evaluated against
the
standard of reasonableness.
[41] I
am in agreement with all the above cases, however, in the absence of
Const. Sibiya’s evidence, one
cannot say that the suspicion was
reasonable. Even if the state were to rely on the fact that Mr Makamu
was visited by the other
two plaintiffs, namely Soneni Mhlabane and
Abbsy Nkosi with Mantinti, in the early hours of the morning while
Mantinti had a firearm.
The question is, did the police do enough to
investigate their involvement in the commission of the offence,
enough to say they
had a reasonable suspicion.
[42]
First of all, the undisputed evidence is that the three arrived at
Mr. Makamu’s place of residence.
Even if it were to be assumed
that the others were involved in the commission of the offence, there
is no evidence that Mr Makamu
had been with them. The only reason one
could deduce from the evidence of Col. Pilusa was that Mr Makamu
resides a few meters from
the police officer who was killed on that
day. There is no indication that Mr Makamo had been with his visitors
elsewhere than
in his house when they showed up to visit him. the
question therefore remains, why was he arrested? Except for the fact
that the
three visited Mr Makamu at his house no other reason could
be found from the evidence of the defendant.
[43]
Furthermore, Mr Makamu stated in his evidence that when he was
arrested, he was never given an opportunity
to explain anything to
the police about the incident. Col. Pilusa is not in a position to
explain whether this is indeed true or
not. He will also be unable to
indicate what transpired in the interview which was conducted by
Const. Sibiya and led to the arrest
and detention of the plaintiffs.
An arresting officer in the position of Sibiya, not Pilusa, was
required to act like a reasonable
man. He would
analyse
and assess the quality of the information at his disposal critically,
and he would not accept it lightly or without checking
it where it
can be checked. It is only after an examination of this kind that he
would allow himself to entertain a suspicion which
would have
justified an arrest. The court cannot determine whether he has done
this and Col. Pilusa is not in a position to indicate
whether Sibiya
entertained a suspicion.
[44]
To sum up on the arrest and detention, Col. Pilusa’s evidence
is based on hearsay evidence. He is
not in a position to give
credible evidence regarding whether the plaintiffs’ rights were
explained when they were arrested,
whether they were provided with an
opportunity to give any explanation to the arresting officer
regarding their involvement in
the commission of the offences they
were suspected of. The defendant has failed to show that the
arrestor, Const. Sibiya, entertained
a suspicion which rested on
reasonable grounds that the plaintiffs had committed a Schedule 1
offence. In other words the defendant
has been unable to discharge
the onus resting on it to show that the arrest and detention of the
plaintiffs was lawful.
Unlawful
Assault
[45]
Assault is a violation of a person’s bodily
integrity. It is trite that every infringement of the
bodily
integrity of another is prima facie unlawful. In an assault claim,
the onus to establish the assault, and damages related
thereto, is on
the plaintiff. An allegation of assault implies wrongfulness. (See
V.F v Minister of Police
(2464/2019)
[2023] ZANWHC 24
(8 March 2023)). Once the infringement is proved,
the onus shifts to the defendant to show grounds of justifying the
assault.
[46]
The question is, did the plaintiff discharge the
onus he has to prove that he was unlawfully assaulted by
members of
the defendant? Although the plaintiff indicated that he was assaulted
with open hands when he was arrested, he contradicted
himself when he
testified. It was not clear whether he was assaulted at the scene as
he was taken from his uncle’s motor
vehicle; when he was put in
the police van or when he was taken to the scene where the policeman
had been killed. Furthermore,
the plaintiff’s uncle did not
corroborate his evidence with regards to the incident of assault if
it happened at the scene
where he was arrested.
[47]
Regarding the assault at the offices in Tonga, the
plaintiff gave details of the assault and a description
of the office
where he was assaulted. Pilusa denied the version of the plaintiff
and even stated that he would not have allowed
it to happen. When he
stated that he knew of no charges laid against him or any of his
members for assault by any of the plaintiffs,
Counsel for the
plaintiffs conceded and said there were no charges laid against any
of the members because the plaintiffs felt
threatened. It came as a
surprise to the court when Mr Makamu testified and told the court
that he actually did lay charges of
assault against Pilusa subsequent
to his release from custody. It became clear that this was
information he had not provided to
his legal representative. This
evidence I found to be unreliable because no CAS number was provided
and it seemed that only the
plaintiff had such information.
[48]
Counsel for the plaintiff made submissions that
the claim for unlawful assault stands to be granted because
in so far
as the plaintiff mentioned the place and premises where the assault
took place, and the existence of which was not denied
by Pilusa, the
evidence of the plaintiff is probable. This submission has no merit.
Pilusa testified that the offices in question
are the offices used by
the Detectives when performing their normal duties. Whether the
accused was taken there to be interviewed
or for any other reason, it
does not then necessarily mean Pilusa was supposed to deny the
existence of these offices. The existence
of the offices as described
by the plaintiff does not mean the assault happened.
[49]
The version of assault is also not supported by
the general circumstances of the case. There is no evidence
of an
Occurrence Book indicating that the plaintiff was detained with
injuries after being assaulted by the police. There is no
medical
evidence to support these allegations or any indication that after
the assault he received medical attention, even after
having been
assaulted in the manner as described. Furthermore, the plaintiff did
not report the assault to the Magistrate on first
appearance stating
that when he raised his hand he was told to sit down. This version is
improbable.
[50]
It is therefore my respectful view that the
plaintiff has failed to discharge the onus he has to prove that
he
was unlawfully assaulted by the police while he was in their custody
and when he was arrested.
Malicious
Prosecution
[51]
In
Heyns
v Venter
2004
(3) SA 200
(T)
it was stated that malicious prosecution consists in the wrongful and
intentional assault on the dignity of a person comprehending
also his
or her good name and privacy. In
Lederman
v Moharal Investments (Pty) Ltd
1969
(1) SA 190
(A) the court stated that
“
I
n
seeking to hold the respondent company liable in damages for this
unsuccessful prosecution, the onus was upon the appellant
to establish in the Court a quo –
(a)
that the respondent set the law
in motion (instigated or instituted the proceedings);
(b)
that it acted without reasonable
and probable cause; and
(c)
that it was actuated by an
indirect or improper motive (malice);
(Also See
Prinsloo
and another v Newman
1975
(1) SA 481
(A)
498 H – 499)
[52]
In
Minister for Justice and Constitutional Development v
Moleko
2009 (2) SACR 585
(SCA)
,
Van Heerden JJA stated the
following: -
“
61.
In the Relyant case,
this
court stated the following in regard to the third requirement:
Although
the expression “malice” is used, it means, in the context
of the actio iniuriarum, animus iniuriandi.
In Moaki v
Reckitt & Colman (Africa) Ltd and another Wessels JA said:
“
Where
relief is claimed by this actio the plaintiff must allege
and prove that the defendant intended to injure (either dolus
directus or indirectus). Save to the extent that it might
afford evidence of the defendant’s true intention or
might
possibly be taken into account in fixing the quantum of
damages, the motive of the defendant is not of any legal
relevance.” ’
62.In
so doing, the Court decided the issue which it had left open
in Lederman v Moharal Investments (Pty) Ltd and again
in Prinsloo v Newman, namely that animus injuriandi,
and not malice, must be proved before the defendant can be
held
liable for malicious prosecution as injuria.
63.Animus
injuriandi includes not only the intention to injure, but also
consciousness of wrongfulness:
‘
In
this regard animus injuriandi (intention) means that the
defendant directed his will to prosecuting the plaintiff (and
thus
infringing his personality), in the awareness that reasonable grounds
for the prosecution were (possibly) absent, in other
words, that his
conduct was (possibly) wrongful (consciousness of wrongfulness). It
follows from this that the defendant will go
free where reasonable
grounds for the prosecution were lacking, but the defendant honestly
believed that the plaintiff was guilty.
In such a case the second
element of dolus, namely of consciousness of wrongfulness, and
therefore animus injuriandi,
will be lacking. His mistake
therefore excludes the existence of animus injuriandi.’
64.The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but
must at least
have foreseen the possibility that he or she was acting wrongfully,
but nevertheless continued to act, reckless as
to the consequences of
his or her conduct (dolus eventualis). Negligence on the part of
the defendant (or, I would say, even
gross negligence) will not
suffice.”
[53]
What the plaintiff has to
prove is that the
defendant was actively instrumental in the prosecution of the
charges thereby setting the law in motion against
him with the
intention to injure him. In order to be able to answer this question,
the defendant’s true intention must be
proven by the plaintiff.
He has to prove the existence of
animus
injuriandi,
which also has to do
with consciousness of wrongfulness and not malice, before the
defendant can be held liable for malicious prosecution.
The question
to be asked is whether this was the state of mind of the defendant
when it proceeded to charge the plaintiffs and
have them prosecuted
for the murder and robbery charges they faced when they were
prosecuted and, at that time, did the defendant
direct his will to
prosecuting the plaintiffs in the awareness that reasonable grounds
for the prosecution were absent?
[54]
To be able to answer this question, the evidence
of Sibiya would have been helpful to determine whether
when he
charged the plaintiffs he honestly believed that they were guilty
even though reasonable grounds to charge and ultimately
have the
plaintiffs prosecuted were lacking. The absence of this evidence in
the defendant’s case leaves a void in the defendant’s
defence. Only Sibiya can tell the court whether he was aware that
what he was doing, by setting the law in motion thereby initiating
the prosecution against the plaintiffs even though the evidence was
insufficient to do so was a wrongful act and whether he foresaw
the
possibility that he was acting wrongfully and nevertheless continued
to charge the plaintiffs reckless as to the consequences
of his
conduct.
[55]
In this case, the averments of malicious
prosecution cannot be disputed and in the absence of any evidence
disputing the averments made by the plaintiffs I can only find that
the defendant has no defence and that the plaintiff has succeeded
to
show on a balance of probabilities that the defendant
set
the law in motion against them without reasonable and probable cause.
I find that the decision to charge and have the plaintiffs
prosecuted
was actuated by an indirect or improper motive (malice) as the
charges were ultimately withdrawn. It is therefore my
respectful view
that the claim for malicious prosecution against the defendant stands
to succeed.
[56]
In the result I make the following order:
56.1. The
plaintiff’s claim for unlawful arrest, detention and malicious
prosecution succeeds.
56.2. The claim
for unlawful assault is dismissed;
56.3. The
defendant is 100% liable for the plaintiff’s proven damages;
56.4. The order in
favour of case number 1359/2017 applies similarly to cases 1360/2017
and 1361/2017; and
56.5. Costs for
the plaintiffs, such costs are to include costs of two Counsel.
VUKEYA
LD
Judge
of the High Court
For
the Plaintiff:
G
SHAKOANE SC. AND ADV. NQH MABENA
Plaintiffs’
Attorneys:
Mpho
Mashiloane Attorneys
Mbombela
Tel:
013 741 1862
Email:
nst@mashiloaneatt.co.za
Ref:
MASHILOANE/LIT1409/15/KK
MASHILOANE/LIT1424/15/KK
MASHILOANE/LIT1426/15/KK
For
the Defendant:
ADV
DM KEKANA
Defendant’s
Attorneys:
Mzuzu
Attorneys
Mbombela
Tel:
013 590 1835/ 013 004 0057
Email:
info@mzuzuattorneys.co.za
Ref:
BNMZUZU/C751/2018
BNMZUZU/C752/2018
BNMZUZU/C753/2018