About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2024
>>
[2024] ZAECBHC 16
|
|
Koloman and Another v Minister of Police and Another (29/2020) [2024] ZAECBHC 16 (20 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BISHO)
CASE
NO: 29/2020
In
the matter between:
PELO
KOLOMAN
FIRST PLAINTIFF
XOLISA
LINKS
SECOND PLAINTIFF
And
MINISTER
OF POLICE
FIRST DEFENDANT
NATIONAL
DIRECTOR OF PUBLI
SECOND DEFENDANT
PROSECUTIONS
JUDGMENT
Noncembu
J
[1] The plaintiffs,
Pelo Koloman and Xolisa Links, lodged the current action against the
defendants claiming damages suffered
as sequelae to their unlawful
arrest, detention and malicious prosecution at the instance of the
defendants’ employees, acting
in the course and scope of their
employment to the defendants. The matter proceeded on both merits and
quantum.
[2] It is common
cause that on 29 December 2018 the plaintiffs were arrested on
allegations of kidnapping and attempted murder
at or near Kashe in
Mdantsane and were detained until their release on 17 January 2019
after a formal bail application that proceeded
on an unopposed basis.
[3] The plaintiffs
allege that the arrest and detention were wrongful and unlawful in
that the arresting officers,
inter alia,
invoked same for
purposes not contemplated by the legislator; acted without
information that the plaintiffs committed the alleged
crimes; failed
to consider alternative and less dramatic means of securing the
plaintiffs’ attendance at court and less invasive
means to
bring them to court other than immediate detention; and failed to
exercise a discretion to arrest in a fair and balanced
manner. They
further allege that the defendants instigated prosecution by laying
false charges against them, thus prosecuting them
for malicious
purposes without any reasonable and probable cause.
[4]
In their amended particulars of claim, the plaintiffs claim a total
amount of R1 000 000.00 in respect of each plaintiff
for the
aforementioned heads against the two defendants jointly and
severally, the one paying the other to be absolved.
[5]
The defendants, on the other hand allege that the arrest was lawful
in that the arresting officer, who was a peace officer,
reasonably
suspected that the plaintiffs had committed an offence referred to in
Schedule 1 of the Criminal Procedure Act, and
for purposes
contemplated in section 50 of the said Act (to bring the plaintiffs
to court). They contend further, that they had
reasonable and
probable cause to prosecute the plaintiffs as they were suspected of
kidnapping and attempted murder, having been
arrested in a vehicle
which had a complainant who was injured in the boot.
[6]
The claim for malicious prosecution is formulated as follows in the
amended particulars of claim:
‘
15.1 On the 28
th
of December 2018
the said members of the South
African Police Services set the law in motion against the plaintiffs
by laying false charges of kidnapping
and attempted murder against
the plaintiffs when they:
15.1.1 had no reasonable
or probable cause for doing so;
15.1.2 were actuated by
malice; and
15.1.3 had no evidence
whatsoever that the plaintiffs had been involved in such crimes;
15.1.4 On 20 September
2019, and at Mdantsane Magistrate’s Court the charges against
the plaintiffs were withdrawn, having
spent 19 days in unlawful
detention.
15.1.5. The conduct of
the members of the first defendant interfered intentionally;
15.1.6 in depriving the
liberty of the plaintiff;
15.1.7 with the freedom
and security of the plaintiff when ignored the information at hand
for a successful prosecution but ought
to refuse bail.’
15.2 On 3 January 2018
the Public Prosecutor set the law in motion against the plaintiffs
when they:
15.2.1 had no reasonable
or probable cause for doing so;
15.2.2 were actuated by
malice;
15.2.3 had no evidence
whatsoever that the plaintiffs had been involved in such crimes, and
15.2.4 Prosecution failed
16. As a result the
plaintiffs suffered General damages in respect of
contumelia
,
as they were mocked, humiliated and insulted by police officers from
the place of scene in the full view of the public and they
were
portrayed as violent criminals in the sum of R500 000.00;
17. As a result of
malicious prosecution plaintiffs suffered damages in the sum of R500
000.00.’
[7]
By way of oral evidence, the plaintiffs called three witnesses; one
Aphiwe Tini who was an eyewitness to the incident
and the two
plaintiffs who testified in support of their case.
[8]
The crux of their evidence is that the two plaintiffs together with
one Smoyi, had accompanied Aphiwe Tini (Aphiwe) to
Highway,
Mdantsane, to conduct investigations pertaining to Aphiwe’s
cell phone which had been robbed next to Shoprite at
Highway earlier
on the day in question. Whilst they were still making enquiries at
Shoprite, they received a telephone call to
the effect that somebody
had been apprehended by taxi drivers for an alleged robbery and was
being assaulted near Boxer stores.
The call was from Xolisa’s
elder brother. They proceeded to the said place.
[9]
On their arrival there they saw the victim (a young man) who was
being assaulted by taxi drivers with bricks, hammers
and sjamborks.
Aphiwe identified the victim as one of the people who had robbed him
of his cell phone. He enquired about his cell
phone from the victim,
who was visibly injured at the time. The victim said that the phone,
together with the taxi drivers’
money, were with his friend who
lives in NU 1 Mdantsane, who had run away.
[10]
After the taxi drivers had finished assaulting the victim, it was
suggested that he be taken to NU 1 to get the robbed
items from the
aforementioned friend. He was loaded in the boot of a Toyota Conquest
which was driven by one of the taxi drivers.
Another taxi driver
boarded the vehicle as a front seat passenger. Phelo (first
plaintiff), Aphiwe, Smoyi and Lwethu boarded at
the back seat of the
vehicle. Xolisa (second plaintiff) followed in his brother’s
vehicle, which also had other passengers.
[11]
The two vehicles proceeded to NU 1 where on arrival, they were
informed that the victim’s friend had not been seen
in over two
months. According to Phelo, along the way they were conversing with
the victim who even asked him for water, because
the vehicle boot was
open.
[12]
When no assistance was received at NU 1, the victim asked that he be
taken to his home at NU 4 where they found his brother.
According to
Phelo, the victim told his brother that he had robbed the car
occupants and asked him for money to pay them so that
they could
release him. The brother said that he did not have money and neither
did their mother at they were tired of always bailing
him out
whenever he got himself into trouble.
[13]
Realising that they were not going to get their phone or any payment
for it, the witnesses requested to be dropped off
at Khashe so that
they could walk home as it was closer to their home and it was dark.
At that point Xolisa moved from his brother’s
vehicle, swopping
seats with Lwethu in the Toyota Conquest. It is not clear from the
evidence why this switch was necessary. According
to Pelo he had
requested him to make the swop because he needed someone to converse
with in the vehicle. Xolisa on the other hand
gave a different reason
for the swop.
[14]
As the Conquest was approaching Khashe it was stopped by police
officers who forcefully removed the occupants from the
vehicle whilst
hurling insults and assaulting them. The victim in the boot told the
police that he had been assaulted by taxi drivers
at Highway. This
however, fell on deaf ears as the police simply arrested the
witnesses without even telling them what charges
they were facing.
They took their pictures, threatening to post them on social media.
They did not give them a chance to explain
what had happened nor did
they explain their constitutional rights to them.
[15]
The car occupants were taken to Mdantsane police station where they
were made to sign certain documents. When it was
established that
Aphiwe and the other occupants were minor children, they were
released in the care of their guardians.
[16] The plaintiffs
were taken to the police cells where they were welcomed by a strong
stench coming from filthy toilets.
They were given dirty blankets
which were infested with teaks. The cell was very dirty and they were
detained with hardened criminals
who threatened and intimidated them.
[17] On 31 December
2018 they were taken to court where the matter was postponed until 3
January 2019 for bail application.
They were thereafter detained at
Westville Correctional Centre where they were kept with hardened
criminals, slept on steel bed
frames with no mattresses and given
dirty blankets. On 3 January the matter was postponed until 17
January 2019 when they were
released from detention. They continued
attending court until 20 September 2019, when the charges against
them were withdrawn.
[18] The plaintiffs
denied that their rights were explained to them or what the charges
were that they were arrested for when
the defendants’ version
was put to them. However, during further questioning it became
apparent that they were given their
constitutional warnings which
they confirmed signing for, although alleging that they did not know
what they were signing at the
time.
[19] The defendants
led the evidence of four witnesses, Warrant Officer Mngoma (Mngona)
and Constable Fani (Fani) who were
the arresting officers, Warrant
Officer Kwenene (Kwenene), the investigating officer and Ms Notyawa
who was the prosecutor in Madantsane
Magistrate’s Court where
the plaintiffs appeared.
[20] Mngoma and
Fani were on duty with other officers when they received information
via radio control around 6pm, pertaining
to a red Toyota Conquest
which was involved in a kidnapping and attempted murder. Around 9 pm
that same evening they were near
Khashe when they spotted and stopped
a vehicle fitting the said description. They asked the occupants,
amongst whom were the plaintiffs,
to alight from the vehicle and the
occupants cooperated. At the boot of the vehicle there was a man who
was badly injured and having
a broken leg. They asked this person
what happened to him and he said that he was assaulted by the
occupants of the vehicle. At
the back seat of the vehicle they found
blood as well as weapons they believed had been used to assault the
victim.
[21]
They asked the occupants’ names and they were told. They
questioned the occupants about the injured
man in the boot but the
occupants did not respond. They then placed them under arrest and
explained their constitutional rights.
The victim was taken by an
ambulance to Cecilia Mkhiwane hospital and the occupants were taken
to the police station where Const
Fani made them sign for their
section 14A notices, copies of which he gave to them after explaining
the charges and their constitutional
rights. Fani established that
some of the occupants were child offenders, he contacted their
parents and they were released into
the custody of their parents.
[22] The plaintiffs
and the taxi drivers were taken to the cell by Fani together with the
cell commander. This was after they
had inspected the cells and
satisfied themselves that they were in a clean condition. Fani denied
that the blankets given to the
plaintiff were dirty and infested with
teaks, stating that there was a company which was responsible for
cleaning the blankets
and that the cells were cleaned regularly. He
also denied that the cells were overcrowded, stating that there were
no more than
10 detainees charged with similar offences where the
plaintiffs were detained.
[23] Warrant
Officer Kwenene was assigned as the investigating officer in the
criminal matter against the plaintiffs. He was
on standby duties on
the night in question when he was informed of a person who had been
taken to Cecilia Makhiwane hospital after
he was found in a vehicle
having been badly injured. He went to the hospital where he met the
victim/complainant by the name of
Zamuxolo Mvuyo being treated by the
doctors. Noticing that the victim was in pains, he did not continue
with interview.
[24] He interviewed
the victim on 30 December 2018 and he obtained a statement where the
victim informed him that he was assaulted
by taxi drivers at Highway,
and taken in a boot of a vehicle whilst being threatened that he was
going to be killed at Greenacker
dam. According to the victim’s
statement, at some stage whilst he was in this vehicle some
youngsters boarded the car and
it looked like they were given a lift.
[25] The docket was
sent to court on 31 December 2018 and he only received it for the
first time from his commander on 8 January
2019 with instructions
that he must prepare for a bail application to be held on 17 January
2019. He did the necessary investigations
by verifying the
plaintiffs’ addresses and checking whether they had any
previous convictions and pending cases. After verifying
that they had
none, he advised the prosecutor not to oppose bail. Consequently, the
plaintiffs were granted bail on 17 January
2019. According to Kwenene
the plaintiffs were charged with schedule 6 offences therefore it was
not up to him to release them
on bail.
[27]
Ms Notyawa testified on behalf of the second defendant. She testified
that the matter was first received by the channelling
court on 31
December 2018, where it was screened by the regional court prosecutor
(RCPP) for the merits and prospects of success.
Once the RCPP was
satisfied of the merits of the case, charges were formulated as
kidnaping, attempted murder and robbery with
aggravating
circumstances, and the matter was transferred to the bail court for a
schedule 6 bail application to be held on 3 January
2019. Notyawa
received the docket the said date (3 January), perused it to satisfy
herself of the merits and the schedule of the
formulated charges.
This she did by considering the statements in the
docket, which included that of the complainant.
[28] The plaintiffs
were represented by a legal aid attorney on the day in question. By
agreement between the parties the
matter was postponed until 17
January 2019 for a formal bail application. The postponement was to
enable the investigating officer
to conduct the necessary
investigations in preparation for bail, as well due to a congested
court roll. On 17 January 2019
the plaintiffs were represented
by Miss Masiso, a private attorney. At this hearing the bail
application proceeded on an unopposed
basis and the plaintiffs were
granted bail. Notyawa did not deal with the matter after the bail
application but according to the
docket the matter was provisionally
withdrawn in September 2019 for further investigations.
[29] The issues for
determination by this court are; (a) whether or not the arrest of the
plaintiffs was justifiable in law
and therefore lawful; (b) Whether
their detention was justifiable; and (c) and whether or not the
plaintiffs have established the
requirements for malicious
prosecution.
Requirements for a
lawful arrest without a warrant
[30]
In their justification of the arrest, the defendants allege that the
arrest was in terms of section 40(1) (b) read with
section 50 of the
Criminal Procedure Act
[1]
(CPA)
in that there was a reasonable suspicion that the plaintiffs had
committed a schedule 1 offence. They allege further, that
the purpose
of the arrest was to bring the plaintiffs to justice, which was done
because the plaintiffs were taken to court on
31 December 2018.
[31] Section 40(1)
(b) of the CPA provides –
‘
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 escape from lawful
custody.’
[32]
It is well established in our law that for the jurisdictional
requirements for an arrest to be met under the said provision
the
arrestor must be a peace officer, who entertains a suspicion that the
suspect committed an offence referred to in Schedule
1 and that the
suspicion must rest on reasonable grounds.
[2]
The learned Judge in
Duncan
v
Minister
of Law and Order
[3]
stated further in this regard; ‘If the jurisdictional
requirements are satisfied, the peace officer may invoke the power
conferred by the subsection; ie, he [or she] may arrest the suspect.
In other words, he [or she] then has a discretion as to whether
or
not to exercise that power (cf
Holgate-Mohamed
v Duke
[1948] 1 All SA ER 1054 (HL) at 1057). No doubt the discretion must
be properly exercised. But the grounds on which the exercise
of such
a discretion can be questioned are narrowly circumscribed.’
[33]
That the arresting officer in the present
matter was a peace officer and that he entertained a suspicion cannot
be questioned. The
question, however, is whether or not such a
suspicion was based on reasonable grounds.
[34]
Reasonable grounds are interpreted objectively and must be of such a
nature that a reasonable person would have had a
suspicion.
[4]
[35]
The test in this regard was set out in
Mabona
v Minister of Law and Order
[5]
where
the Court stated the following:
‘
The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically and will not accept
it lightly
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 a sufficiently
high quality
and cogency to engender in him a conviction that the suspect is in
fact guilty. The section requires suspicion and
not certainty.
However, the suspicion must be based on reasonable grounds’
[36] The evidence
of the arresting officers in the present matter is that they had
information that a vehicle fitting the
description in which the
plaintiffs were occupants had committed an offence of kidnapping and
attempted murder. On spotting the
vehicle in question they found a
victim who was in the boot of the vehicle who was badly injured and
having a broken leg. They
found blood in the vehicle in question as
well as weapons believed to have been used to assault the victim.
[37]
On their version, when they questioned the
victim he informed them that he had been assaulted by the occupants
of the vehicle. Even
without this information, in my view the
evidence that they found in the vehicle, that is, of the injured
person in the boot the
vehicle, the blood at the back seat where the
plaintiffs were seated as well as the weapons, considered
objectively, were sufficient
to create a reasonable suspicion on any
reasonable person in a similar position. Mngoma also stated in his
evidence in court, correctly
so in my view, that they could not rely
on the version of the suspects in order to formulate their case
against them.
[38] Even so, on
their own version, the plaintiffs’ case that they were given a
lift in the vehicle in question on the
said evening is not
sustainable. The common thread in their evidence in court was that
they went along with the taxi drivers in
the Toyota Conquest because
they wanted Aphiwe’s phone which the victim had robbed earlier
on that day. In his evidence in
chief Pelo stated that when they were
at the victim’s home in NU 4, the victim told his brother that
he had robbed those
people and
he needed money to pay them so that
they would release him
. (Emphasis intended) The only
self-manifest interpretation in this regard, coupled with the fact
that the victim was held in the
boot of the car, is that he was being
held against his will.
Prima facie
, and on their version
alone, the plaintiffs were actively involved in a kidnapping.
[39] They left a
police station within the vicinity of where the victim was assaulted.
Instead of reporting the matter to
the police they decided to act as
police officers by investigating the matter themselves in
circumstances where they could readily
see that the victim was badly
injured. Once more on their own version, a 4-pound hammer, bricks and
sjamboks were amongst the weapons
used to assault the victim. The
version of the police in this regard is that the victim told them
that he was being taken to Greenacker
dam where he was going to be
killed.
[40] The arresting
officers therefore cannot be faulted in forming a suspicion that the
plaintiffs had committed the offenses
in question, which offenses no
doubt fall under schedule one. I am therefore satisfied that their
suspicion was based on reasonable
grounds.
[41]
As to whether the police had properly exercised their discretion in
arresting the plaintiffs is a fact-based question.
T
he
grounds upon which the exercise of such a discretion can be
questioned are narrowly circumscribed.
[6]
[42]
The evidence of the defendants in this regard, in line with their
amended plea, was that the plaintiffs were arrested
at night for
serious offences falling under schedule 6. As such their release was
a factor which could only be considered by a
court in a formal bail
application. Furthermore, their addresses and whether or not they had
previous convictions and/ or pending
cases, had not been verified.
[43]
The following remarks by Harms DP in
Sekhoto
[7]
are apposite:
‘
...
in some instances a special onus rests on a suspect before bail may
be granted and the accused has in any event a duty to disclose
certain facts, including prior convictions, to the court. It is
sufficient to say that if a peace officer were to be permitted
to
arrest only once he is satisfied that the suspect might not otherwise
attend the trial then that statutory structure would be
entirely
frustrated. To suggest that such a constraint upon the power to
arrest is to be found in the statute by inference is untenable.
[44]
While the purpose of arrest is to bring the suspect to trial the
arrestor has a limited role in that process. He or she is
not called
upon to determine whether the suspect ought to be detained pending a
trial. That is the role of the court (or in some
cases a senior
officer). The purpose of the arrest is no more than to bring the
suspect before the court (or the senior officer)
so as to enable that
role to be performed.
It seems to me to
follow that the enquiry to be made by the peace officer is not how
best to bring the suspect to trial: the enquiry
is only whether the
case is one in which that decision ought properly to be made by a
court (or the senior officer). Whether his
decision on that question
is rational naturally depends upon the particular facts but it is
clear that in cases of serious crime
– and those listed in
Schedule 1 are serious, not only because the Legislature thought so –
a peace officer could seldom
be criticized for arresting a suspect
for that purpose. ...’ (Emphasis intended.
[44]
It seems to me that the challenge mounted by the plaintiffs regarding
their arrest having been for purposes not intended
by the legislator
is premised on what the Supreme Court of Appeal (SCA) in
Sekhoto
[8]
referred to as a fifth jurisdictional requirement for an arrest.
After a full discussion of the history and the applicable
constitutional
principles in this regard, the Court dispelled this
view, asserting it as a conflation of the jurisdictional facts with
discretion.
[45]
The Court nevertheless emphasized that it remains a general
requirement that any discretion be exercised in good faith,
rationally and not arbitrarily. Amplifying this aspect, the court
stated: ‘This would mean that peace
officers
are entitled to exercise their discretion as they see fit, provided
that they stay within the bounds of rationality. The
standard is not
breached because an officer exercises the discretion in a manner
other than that deemed optimal by the court. A
number of choices may
be open to him, all of which may fall within the range of
rationality. The standard is not perfection, or
even the optimum,
judged from the vantage of hindsight and so long as the discretion is
exercised within this range, the standard
is not breached.’
[46] The arresting
officer made it clear in his evidence in court, as was also stated in
the defendants’ amended plea,
that the purpose of arresting the
plaintiffs wants to bring them to court. That is exactly what
happened as the plaintiffs were
taken to court at the earliest
opportunity and within 48 hours of their arrest. It can therefore not
be said that the arrest of
the plaintiffs was for purposes other than
those intended by the legislator. There is nothing in the evidence
before court to suggest
that the arresting officers had any ulterior
motive in arresting the plaintiffs than taking him them to court.
[47] This is
further fortified by the fact that when it was established that some
of the vehicle occupants were minor children,
their parents were
contacted, and they were released into their custody.
[48]
No criticism therefore, can be levelled against the arresting
officers for the manner in which they exercised their discretion.
Furthermore,
it has to be borne in mind that, as was said in
Tsose
v
Minister of Justice
[9]
‘
there
is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective’.
The
submission that the discretion was exercised in an improper manner
can therefore has no merit and cannot be sustained.
[49]
Sufficient evidence was placed before court on why it was necessary
for the plaintiffs to be detained prior to their
appearance in court.
The investigating officer gave evidence that on the statement he had
obtained from the complainant, the plaintiffs
were facing charges
contemplated in schedule 6 of the CPA, and as such they could only be
released after a formal bail application
was conducted in court. The
said statement which was submitted as exhibit “B” in
these proceedings reflects that there
were two male occupants who
were seated at the back seat of the vehicle who, though having never
assaulted the complainant, told
him to keep quiet as they were taking
him to Greenacker dam where they were going to kill him.
[10]
[50] As already
indicated above, p
rima facie
, an offence of kidnapping was
committed. The common cause evidence before this court is that the
plaintiffs, with some youths who
were later released into the care of
their parents, were the back seat passengers of the vehicle in
question.
[51] The same
statement also refers to a cell phone of the complainant which was
grabbed when he was assaulted at Highway,
hence on the investigating
officer’s evidence, there was also a charge of robbery with
aggravating circumstances preferred
against the vehicle occupants who
included the plaintiffs.
[52] Relying on the
same statement, Ms Notyawa, the prosecutor who testified before this
court, was satisfied that there were
reasonable prospects of success
in the case against the plaintiffs, hence she proceeded with the
prosecution in the matter on the
grounds that the offences in
question fell under schedule 6.
[53] Ms Notyawa
explained the manner in which the proceedings took place in court
from the first time that she dealt with
the matter, the necessity for
the postponements in order to,
inter alia,
prepare for a bail
application, and most importantly, that the plaintiffs were legally
represented when the proceedings were postponed
during her
involvement with the matter.
[54] Her evidence
in this regard was supported by court records reflecting that all the
necessary information was placed before
the magistrate when the
matter was remanded.
[55] Given the
above evidence, I am of the view that the defendants have established
that this was not a case where the investigating
officer had a
discretion to release the plaintiffs prior to their appearance in
court as that was a factor to be established by
court after various
considerations, including the interests of justice. Furthermore, the
further detention of the plaintiffs after
their first appearance in
court was sanctioned by the court after all the relevant information
was placed before it. I can therefore
find no merit to the submission
that the investigating officer and /or the prosecutor had a malicious
intent in this regard.
Malicious prosecution
[56] The
requirements for malicious prosecution are trite. They are that; (a)
the defendants must have set the law in motion;
(b) they must have
acted without reasonable and probable cause; (c) they must have acted
with malice or animus
injuriandi
; and (d) the prosecution must
have failed.
[57]
It is also trite that it is incumbent upon the plaintiff to allege
and prove the above requirements, in particular, that
the defendant
acted maliciously and without reasonable and probable cause, on a
balance of probabilities in order to satisfy the
jurisdictional
requirements for malicious prosecution.
[11]
[58] In their
amended particulars of claim the plaintiffs have alleged that both
the members of the first defendant as well
as the public prosecutor
on behalf of the second defendant, set the law in motion by laying
false charges against the plaintiffs
in circumstances where there was
no reasonable and probable cause, and were actuated by malice.
[59]
In
Relyant
Trading (Pty) Ltd v Shongwe and Another
[12]
the
Supreme Court of Appeal stated the following in regard to the
requirement of “malice” or
animus
iniuriandi
: -
‘
Although
the expression ‘malice’ is used, it means, in the context
of the
actio iniuriarum
,
animus iniuriandi.
In
Moaki v Reckitt & Colman (Africa)
Ltd & 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”.’
[60]
M
aking
reference to this passage in the
Relyant
Trading
matter,
Van Heerden JA, in
Minister
for Justice and Constitutional Development v Moleko,
[13]
stated
the following: -
‘
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
consciousness of wrongfulness, and therefore,
animus
injuriandi,
will be lacking. His
mistake therefore excludes the existence of
animus
injuriandi
.”
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.
[14]
[62]
It is significant to note that apart from making allegations in their
pleadings, the plaintiffs tendered no evidence
before court to
suggest, or from which it could be inferred that the police or the
state prosecutor, acted with animus
injuriandi
when they instigated the prosecution against them.
[63] Both witnesses
who testified on behalf of the defendants in this regard, ie. the
police and Ms Notyawa, stated that in
making their decision to either
charge the plaintiffs or continue with the prosecution, was based on
information they obtained
from the complainant’s statement from
which they were satisfied that the plaintiffs had committed the
offences in question.
[64] In the absence
of any evidence from the plaintiffs that the defendants intended to
injure them when they acted as they
did, the plaintiffs have failed
to establish malice on the part of the defendants.
[65] Similarly,
with regards to reasonable and probable cause, no evidence was
tendered to suggest absence thereof on the
part of the defendants.
[66]
Reasonable
and probable cause means an honest belief based on reasonable grounds
that the institution of the proceedings complained
of was
justified.
[15]
There must be
sufficient facts known to the defendant from which a reasonable
person could have concluded that the plaintiffs had
committed the
offence in question, and a mere honest belief that the facts amount
to an offence irrespective of the legal requirements
is
insufficient.
[16]
[67]
The defendant is only expected to have taken reasonable measures to
discover the facts upon which he or she bases a conclusion
that the
plaintiff was guilty of an offence: the defendant need not test all
the relevant facts.
[17]
Though
the defendant had an honest belief in the charges where there were no
reasonable grounds for that belief, there can be no
reasonable and
probable cause and a mere honest belief in the truth of the facts
upon which the accusation is based is not conclusive
of the presence
of reasonable and probable cause.
[18]
[68] There may be
absence of reasonable and probable cause irrespective of whether
there was an honest belief in the guilt
of the accused. If the
defendant is found to have acted with reasonable and probable cause
an action for malicious prosecution
will fail, no matter what his or
her motive for his instituting the prosecution.
[69]
The test for reasonable and probable cause involves both subjective
and objective elements. Not only must the defendant
have subjectively
had an honest belief in the guilt of the plaintiff, but his or her
belief and conduct must have been objectively
reasonable, as would
have been exercised by a person using ordinary care and prudence.
[19]
[70] The evidence
of Warrant Officer Kwenene was that when he went to see the
complainant in hospital on the night of the
incident, he found him to
be still in pain and being attended to by the doctors, as a result he
decided to leave him and come back
the following day. This shows that
his conduct was objectively reasonable as would have been exercised
by a person using ordinary
care and prudence. He made sure that he
interviewed complainant when he was in his sound and sober senses not
clouded by pain so
that he would obtain all the necessary relevant
information.
[71] He testified
that he considered the offences against the plaintiffs, that they
fell under schedule 6 of the CPA. Likewise,
the evidence of Ms
Notyawa was that she considered the statement of the complainant, as
well as the evidence pertaining to the
arrest of the plaintiffs and
was satisfied that the plaintiffs had committed the offences in
question. The plaintiffs were arrested
in the same vehicle where the
complainant who was found badly injured, seated in the boot, which
vehicle had blood in the back
seat and weapons apparently used to
assault the plaintiff. On their version the complainant had robbed
Aphiwe of a cellphone, and
they went with him in the vehicle in
question in order to recover the said phone or compensation
therefore. It was therefore no
coincidence that they were arrested in
the said vehicle when it was stopped by the police.
[72] With all of
the above taken into consideration, it becomes readily apparent that
the defendants had reasonable and probable
cause for instituting or
continuing with prosecution against the plaintiffs.
[73] Nothing turns
on the fact that the charges were withdrawn against the plaintiffs.
What is germane is that the plaintiffs
have failed to establish the
requirements for malicious prosecution, as such their claim I this
regard cannot succeed.
Costs
[74] The general
rule is that costs should follow the result, and that they are within
the discretion of the court. There
is no reason why the general rule
should be deviated from in the present matter.
Order
[38] Both claims by
the plaintiffs are dismissed with costs, on scale B as provided for
in terms of Rule 69 of the Uniform
Rules of Court.
V P NONCEMBU
JUDGE OF THE HIGH
COURT
APPEARANCES
Date
of hearing : 24 October 2023; 25 October 2023; 26 October 2023 and 6
November 2023
Date
of judgment:
20 June 2024
Counsel
for the Plaintiffs:
T
Mduba
Instructed
by:
Masiso Attorneys Inc
East London
C/O Mgangatho Attorneys
Makhanda
Counsel
for the Defendants
L X Mpiti
Instructed
by
Office of the State Attorney
East London
[1]
Act
51 of 1977.
[2]
see
Duncan
v Minister of Law and Order
1986 SA (2) 805 (AD) at 818 G-J).
[3]
Ibid
.
[4]
R
v Heerden 1958 (3) SA 150 (T).
[5]
1988
(2) SA 654
SEC.
[6]
See
Duncan
supra.
[7]
Minister
of Safety and Security v Sekhoto
2011
(1) SACR 315
(SCA) at paras 43 -44.
[8]
Supra
[9]
1951
(3) SA 10
(A) at 17H.
[10]
See
paragraph 8 of exhibit “B”.
[11]
Mabona
v Minister of Law and
Order
1988 2 SA 654
(SE) 658E. See also
Gellman
v Minister of Safety and Security
2008 1 SACR 446
(W) para72;
Le
Roux v Minister of Safety and Security
2009 4 SA 491
(KZP) 498 para 24;
Visagie
v Minister of Safety and Security
2009 ZAECHC 2
paras 20-23.
[12]
[2007] 1 All SA 375
[13]
Minister of Justice and Constitutional Development v Moleko
[2008] 3
All SA 47
(SCA) paras 63-64.
[14]
Footnotes
omitted.
[15]
Beckenstrater
v Rottcher & Theunissen
1955
(1) SA 129
AD 135.
[16]
Ochse
v King William’s Town Municipality
1990
(2) SA 855 (E) 857.
[17]
Madnitsky
v Rosenberg
1949
1 PH J5 (W) 13-14.
[18]
Heyns
v Venter
2004
(3) SA 200(T) 211.
[19]
May v
Union Government
1953 (3) SA 899
(N).