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[2020] ZASCA 59
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Minister of Safety and Security v Lincoln (682/19) [2020] ZASCA 59; [2020] 3 All SA 341 (SCA); 2020 (2) SACR 262 (SCA) (5 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 682/19
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY APPELLANT
and
ANDRÉ
EDWARD
LINCOLN RESPONDENT
Neutral
citation:
Minister
of Safety and Security v Lincoln
(Case
no 682/19)
[2020] ZASCA 59
(5 June 2020)
Coram:
CACHALIA, SALDULKER, VAN DER MERWE
and DLODLO JJA and EKSTEEN AJA
Heard
:
4 May 2020
Delivered
:
This judgment was handed down
electronically by circulation to the parties' representatives by
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 10h00 on 5
June 2020.
Summary:
Malicious
prosecution – elements of the cause of action – onus –
decision to prosecute taken by the office of
the National Director of
Public Prosecutions – whether police official set the law in
motion by instigating the prosecution
– whether police
officials had reasonable and probable cause.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Allie J and Parker J,
Binns-Ward J (dissenting)), sitting as court of appeal):
judgment
reported
sub nom
Minister of Safety and Security v Lincoln
[2018]
ZAWCHC 133
;
[2019] 1 All SA 454
(WCC)
1 The appeal succeeds with costs, including the costs of
two counsel.
2 The order of the full court is set aside and replaced
with the following:
‘
The appeal is dismissed with
costs, including the costs of two counsel.’
JUDGMENT
Eksteen
AJA (Cachalia, Saldulker, Van der Merwe and Dlodlo JJA concurring)
[1]
At issue in this appeal
is whether the employees of the appellant, the Minister of Safety and
Security (the Minister), instigated
the prosecution of the
respondent, a Major-General in the South African Police Service
(SAPS), Mr André Lincoln (Lincoln),
and whether they had
reasonable and probable cause to do so.
[2]
Lincoln was charged in
the Wynberg Regional Court (the criminal trial) on 47 criminal
charges, including numerous counts of fraud.
He was convicted on 18
November 2002 on 17 counts, 15 of which related to fraud, and
sentenced to nine years’ imprisonment.
In an appeal to the
Western Cape Division of the High Court, Cape Town (Traverso AJP and
Le Grange J), the convictions and sentence
were set aside. Lincoln
then instituted an action against the Minister, also in the Cape Town
High Court, for the damages arising
from an alleged malicious
prosecution.
[1]
His claim was dismissed by the court of first instance (the trial
court). On appeal to the full court, however, the majority (Allie
J
and Parker J, hereinafter ‘the majority’) entered
judgment in his favour in respect of all of the charges brought
against him, barring two.
[2]
The current appeal is against the judgment of the full court, with
special leave having been granted by this court.
[3]
The facts leading up to
the present litigation are as follows. Prior to 1994, Lincoln had
been an intelligence operative in the
African National Congress
(ANC). He was integrated into the newly formed South African Police
Service (SAPS) pursuant to the ‘Rationalisation
Proclamation’,
as defined in
s 1
of the
South African Police Service Act 68 of
1995
,
[3]
at the rank of Director. The integration process brought together
members of the various liberation movements and police officers
who
had served in the former South African Police Force (and in the
police of the various homeland republics) into one organisation,
the
South African Police Service (SAPS). Understandably, this was
initially met with apprehension and distrust from both sides
of the
divide and became a recurring theme in the present dispute.
[4]
During 1996 Lincoln
received information relating to Mr Vito Palazzolo, allegedly a
highly placed member of the Italian mafia, who
was resident in Cape
Town. It suggested the existence of mutually beneficial and corrupt
relationships between him and a high ranking
officer in the SAPS, and
also a Minister in the National Cabinet. Lincoln prepared and
delivered a presentation on the issue to
the State President,
Mr Nelson Mandela (the President), and the Minister of Safety
and Security, Mr Sydney Mufamadi (Mufamadi).
The outcome was that a
Presidential Investigative Task Unit (PITU) was established. Lincoln
was the commander of this unit. It
comprised of a number of officers
chosen by him, including Sergeant Abramn Smith (Smith), who had
previous experience of investigations
relating to the mafia.
[5]
The mandate of the PITU
was to investigate the affairs of Palazzolo and those associated with
him, including his alleged links to
the ‘criminal underworld’
of Cape Town. The investigation was assigned the code name ‘Operation
Intrigue’.
By virtue of its sensitivity involving, as it did, a
cabinet minister and a highly placed officer in the SAPS the unit
operated
covertly outside of the usual command structures of the
SAPS. It was required to report directly to the President and the
Commissioner
of Police, General Fivaz (Fivaz), although it appears
that Lincoln, at least during the initial period of its existence,
did not
report to Fivaz. In the exercise of its mandate the PITU
believed that it was entitled to take over any investigations falling
within the scope of its enquiry from other specialised units. This
was met with resistance by officers in those units. They reported
their concerns to Fivaz. In addition, there was a complaint from the
office of the erstwhile Attorney-General (the Attorney-General)
to
Fivaz, relating to the release of a sentenced prisoner,
Mr Mangiagalli, from custody apparently at the instance of the
PITU. Lincoln viewed the resistance as interfering with his mandate.
He reported this to the Deputy President, Mr Thabo Mbeki (the
Deputy
President).
[6]
In mid-1996 Fivaz
instructed Senior Superintendent Bouwer (SS Bouwer) and
Superintendent Senekal (jointly referred to as ‘the
evaluation
team’) to conduct an efficiency assessment of the PITU. The
assessment included an investigation into the unit’s
efficiency
in its use of state resources. In the course of this investigation,
Smith made contact with the evaluation team and
had a series of
meetings with them. Smith had had an unhappy tenure with the PITU. He
had numerous altercations with Lincoln and
had left the PITU earlier
on the day on which he contacted the
evaluation
team. During the interview Smith made a number of serious
incriminating allegations against Lincoln and the PITU. Senekal
prepared
a detailed affidavit from Smith recording these allegations.
[7]
The allegations and the
other findings of the evaluation team were orally reported to Fivaz
prior to the submission of a written
report on 19 August 1997.
The team identified a number transgressions by the PITU which they
considered to be of a criminal
nature and recommended that these be
investigated. It suggested Director Knipe conduct the investigation.
The investigation resulted
in a number of charges in the criminal
trial. Only two sets of charges were raised in Smith’s
affidavit. T
he
first related to charges of drunken driving and leaving the scene of
an accident, which is not material for purposes of the present
appeal. The second set of charges related to Mangiagalli.
[4]
After submitting their written report to Fivaz neither SS Bouwer nor
Senekal had any further involvement in the investigation or
the
prosecution which followed. They did not testify at the criminal
trial either.
[8]
In
view of these developments, including the oral report from the
evaluation
team,
Fivaz summoned Lincoln to a meeting in his office in Pretoria on 15
August 1997. The Deputy President, however, intervened
to cancel the
meeting. In its stead he set up another meeting at his residence.
This was attended by the Deputy President, Mufamadi,
Fivaz and
Lincoln, who was accompanied by Inspector Piet Viljoen (Viljoen), an
officer in the PITU. At the meeting both Lincoln
and Fivaz raised
their concerns arising from the operation and reporting structures of
the unit. Fivaz reported the complaints
of misconduct by Lincoln and
made clear that he was obliged to investigate these. The allegations
included those made by Smith
to
the
evaluation
team.
It was resolved that Knipe would lead the investigation into the
complaints and he was duly appointed.
[9]
Knipe
enlisted the assistance of Superintendent Rossouw, an experienced
investigator, to conduct the investigation. By virtue of
the
sensitivity of the investigation Knipe and Rossouw were required to
do their work under the supervision and direction of the
Attorney-General. Advocate Bouwer (Bouwer),
[5]
a member of the staff of the Attorney-General, was appointed for this
purpose. During the course of the investigation he met them
regularly.
[10]
The
affidavit attested to by Smith provided the foundation for their
investigation. Knipe was alive to Smith’s difficult history
with Lincoln, which was recorded in the affidavit, and of his recent
departure from the PITU. He therefore did not accept Smith’s
allegations at face value. He also considered some of them
‘incredulous’. He accordingly interrogated Smith
intensively
in order to verify the allegations. The investigation
that followed was extensive. Numerous dockets were opened, some
having their
origin in Smith’s affidavit and some from other
sources. Fivaz stated, however, that no docket was opened in respect
of Smith’s
allegations until they had been corroborated.
Approximately 200 witnesses were interviewed and affidavits were
taken from them.
On a number of occasions, Bouwer was not satisfied
with the content of the affidavits and the investigators were
instructed to
return in order to obtain further affidavits from the
same witnesses.
[11]
Once the individual dockets were complete, the evidence obtained was
subjected to a thorough review by Bouwer, Advocate Niehaus,
the
Deputy Attorney-General, and Advocate Kahn, the Attorney-General. In
some cases they declined to prosecute. However, where
they were
satisfied that a sound case was made in the docket they decided to
proceed with a prosecution. Each docket which proceeded
to trial was
signed off by Bouwer.
[12]
Once the Attorney-General had instituted charges, Lincoln made
further representations on why the prosecution should not proceed.
By
virtue of the involvement of Kahn in the decision, and at the request
of Lincoln, the representations were made to the National
Director of
Public Prosecutions (NDPP), Mr Bulelani Ngcuka. He received written
representations from Lincoln’s legal representatives
and from
the office of the Attorney-General and he then afforded both side the
opportunity to address him orally. Whilst the evidence
did not reveal
the content of the representations made to the NDPP, the only logical
inference that can be drawn from this is that
the NDPP was satisfied
that the content of the dockets revealed reasonable prospects for a
successful prosecution. He therefore
rejected Lincoln’s
representations and directed that the prosecution proceed.
[13] The relevant charges which
were prosecuted may be summarised as follows:
(i) Counts 1-10: Fraud – arising from the hiring
of motor vehicles at State expense;
(ii) counts 11-32: Fraud, alternatively theft –
arising from claims for subsistence and travelling (S & T)
allowances
whilst living with his family in a ‘safe house’
rented by the PITU for witness protection;
(iii) counts 33-34: Fraud – arising from the
successive hiring of two ‘safe-houses’ for the PITU which
were allegedly
not used for their sole intended purposes;
(iv) counts 35-37: Fraud – arising from claims
submitted for payment of money to Ms Zoey Gillot (Gillot), a
registered source
of the PITU, allegedly for services which were not
performed;
(v) count 38: Fraud – arising from the submission
of a claim for payment of money to an informer whom it was alleged
did not
exist;
(vi) count 39: Fraud, alternatively theft –
arising from a claim for the payment of S & T for living expenses
while in
Angola, when these expenses were allegedly fully paid by
Palazzolo;
(vii) count 40: Theft – arising from the alleged
removal, with the intent to steal, of furniture purchased at state
expense
to furnish the ‘safe-house’ rented for the PITU;
(viii) count 41: Fraud – arising from the
expenditure of state funds to fly Ms Alvera Williams (Williams), a
friend of Lincoln’s
wife, from East London to Cape Town and her
hotel accommodation;
(ix) counts 42-43: Fraud –
relating to a claim for S & T during a visit to Pretoria;
[6]
(x) counts 44-45: Fraud and/or
obstructing or defeating the ends of justice – arising from a
claim submitted for money to
be paid to Mangiagalli as an informer,
and facilitating his unauthorised release from prison,
respectively.
[7]
[14]
Following his acquittal, Lincoln claimed damages arising from an
alleged malicious prosecution. In the particulars of
his claim
(as amended) he alleged that during October 1998, SS Bouwer, Smith,
Knipe and Rossouw (the employees of the SAPS) wrongfully
and
maliciously set the law in motion by instigating the aforesaid
charges against him when they had no reasonable or probable
cause for
doing so, nor a reasonable belief in the truth of the charges. In
respect of the alleged absence of reasonable and probable
cause for
the prosecution, he alleged that false statements against him were
procured in terms of
s 204
of the
Criminal Procedure Act 51 of
1977
from junior officers, informers and other witnesses after they
had been subjected to duress.
[15] The Minister, in his plea, admitted that the
members of the SAPS were involved in investigating charges against
Lincoln, but
denied:
(a) That the persons referred to instigated the charges
or that they wrongfully or maliciously set the law in motion;
(b) that they knowingly procured false statements from
witnesses;
(c) that they acted without reasonable and probable
cause, and
(d) that they had no honest belief in
the truth of the charges.
[16]
Prior to the commencement of trial, counsel for the Minister
requested further particulars. They requested Lincoln to indicate
on
what basis it was alleged that employees of the SAPS ‘instigated’
charges against him and asked him to indicate
which statements,
allegedly procured by the SAPS, were false and which were given in
circumstances where the witness did not wish
to make a statement on a
voluntary basis. The request required Lincoln to explain the basis on
which he alleged that statements
received from witnesses were made
under duress by providing details of the witnesses, the nature of the
alleged duress and the
circumstances under which this occurred.
[17]
In response it was asserted on behalf of Lincoln that Knipe and
Rossouw procured false statements, from Captain Thea van der
Westhuizen (Van der Westhuizen), Smith, Palazzolo, Captain Benn
(Benn), Gillot and Williams. It was alleged that the duress was
that
Knipe and Rossouw threatened these witnesses with prosecution in the
event of them refusing to furnish incriminating statements
against
Lincoln.
[18] In particular, the reply on behalf of Lincoln
alleged:
(a) That Smith was placed under enormous pressure and
intimidated by Knipe and Rossouw to ‘frame’ Lincoln by
forcing
him to change his earlier statements to the investigators;
(b) Gillot made various conflicting statements during
the Knipe and Rossouw investigation and Knipe and Rossouw made false
assertions
that she had never worked for the PITU, when she had in
fact deposed to many affidavits confirming the various reports she
had
compiled;
(c) Benn made nine inconsistent statements to the
investigators;
(d) Benn was a
s 204
witness and was threatened with
prosecution if he did not change his statements to incriminate
Lincoln;
(e) Van der Westhuizen made various matters ‘clear
to Knipe and Rossouw’;
(f) over the course of eight meetings
Knipe placed enormous pressure on Palazzolo to deny that he was ever
reimbursed by Lincoln
for the trip to Angola but that
notwithstanding such pressure, he deposed to an affidavit
confirming that Lincoln had
offered to reimburse him;
[8]
(g) Williams confirmed that she had
been threatened and intimidated by Rossouw and that she had made two
written statements to Rossouw.
[9]
[19]
Lincoln’s case essentially was that it was Knipe and Rossouw
who had set the law in motion without reasonable and probable
cause.
In this court, however, counsel for Lincoln argued that Smith –
not Knipe and Rossouw – had instigated the charges
against him
without reasonable and probable cause and that SS Bouwer, Knipe and
Rossouw had perpetuated the wrongful conduct. I
shall revert to this
issue later.
[20]
The cause of action relied upon is the
actio
iniuriarum
.
[10]
In order to succeed in a claim for malicious prosecution a plaintiff
must establish that:
(i) The defendant:
(a) Set the law in motion (instituted or instigated the
proceedings);
(b) acted without reasonable and
probable cause; and
(c) acted with malice (or
animo
injuriandi
); and
(ii) that the prosecution failed.
[11]
[21]
Whilst there may be a measure of overlap between the first three
requirements, they remain separate elements of the cause of
action
and the plaintiff (Lincoln) bore the onus to establish each
distinctly.
[12]
[22]
In this case the criminal proceedings failed. I have some doubt about
the full court’s finding of malice. It seems to
me that the
majority confused and conflated the requirement for
animus
injuriandi
with
motive.
[13]
However, by virtue of the conclusion that I have reached it is not
necessary to make a finding on this issue. I shall assume for
purposes of this judgment that
animus
injuriandi
was
established.
[23] Notwithstanding the denial in the pleadings that
members of the SAPS had instigated the prosecution, the trial court
found
that it was common cause that members of the SAPS had done so.
This she concluded from a reference in the heads of argument on
behalf of the Minister in argument for absolution at the end of
Lincoln’s case that he accepted that ‘they initiated
the
criminal prosecution’. She made no finding in respect of who in
the SAPS had instigated the prosecution or in what manner.
The
majority merely noted and accepted the findings of the trial court in
this regard. The minority in the full court (the minority)
did not
find it necessary to consider the issue. In respect of the reasonable
and probable cause the trial court and the minority
held that Lincoln
had failed to establish that members of the SAPS did not have
reasonable and probable cause for the prosecution.
The majority did
not find it necessary to delve into this question. The majority
judgment concluded:
‘
The requirements of malice and
animus
injuriandi
has to be inferred from the
conduct of Smith, bearing in mind that Smith ought reasonably to have
known that the allegations of
fraud that he levelled against
[Lincoln] as well as the allegation that [Lincoln]had colluded with
Palazzolo, were false. Despite
that knowledge, Smith proceeded to
depose to an affidavit in which he made those allegations. The
misconduct of Smith was perpetuated
by the investigators, primarily
because of their suspicions which they failed to test against
objective facts and with reference
to the
modus
operandi
of a covert unit that was
investigating sensitive matters, namely, allegations of possible
criminal activity between Palazzolo,
a cabinet minister and a high
ranking police commissioner.
In
Minister of Justice and Constitutional Development v Moleko
para 20 the Supreme Court of Appeal held that there had to have been
an honest belief in the guilt of the plaintiff held on reasonable
grounds to prove reasonable and probable cause.
I am not persuaded that Smith could have had a reasonable and honest
belief in the guilt of [Lincoln].
If the dockets did indeed contain evidence capable of proving beyond
reasonable doubt that [Lincoln] had committed fraud, the state
would
have been remiss in not adducing that evidence in the regional court
and in conceding the merits of [Lincoln’s] appeal
in the
criminal case.
The alleged malice of Smith and the investigators
would clearly not have been found in the dockets themselves. Malice
would have
to be inferred based on what the court
a
quo
had been presented with in the
evidence of [Lincoln] supported by documents that he relied on and on
the candid evidence of Knipe,
Senekal, Rossouw and Smith which
confirm that they held a bias against [Lincoln] and the PITU and a
lack of appreciation for the
need to be discreet in the submission of
claims for the payment of informants and witnesses. The nuance that
appears to have been
overlooked by the court
a
quo
, is the fact that even if, on the
information contained in the dockets, reasonable and probable cause
to prosecute may have been
apparent, it does not necessarily follow
that reasonable and probable cause had not been contrived.’
[24] The decision to prosecute in this matter, as I have
said, was made by the NDPP. The prosecution was instituted by the
State,
hence the reliance in the particulars of claim on the
allegation that the employees of the Minister had ‘instigated’
the prosecution. In
Waterhouse v Shields
1924 CPD 155
at 160
Gardiner J stated:
‘
The first matter the plaintiff has to prove
is that the defendant was actively instrumental in the prosecution of
the charge. This
is a matter more difficult to prove in South Africa,
where prosecutions are nearly always conducted by the Crown, than it
is in
England, where many cases are left to the private prosecutor.
Where a person merely gives a fair statement of the facts to the
police, and leaves it to the latter to take such steps thereon as
they deem fit, and does nothing more to identify himself with
the
prosecution, he is not responsible, in an action for malicious
prosecution, to a person whom the police may charge. But if
he goes
further, and actively assists and identifies himself with the
prosecution, he may be liable. “The test,” said
Bristowe
J in
Baker v Christiane
1920 WLD 14
, “is whether the defendant did more than tell the
detective the facts and leave him to act on his own judgment”.’
[14]
[25]
As recorded earlier, in this court it was argued that Smith was the
root of all evil, that he set the law in motion and that
he had no
reasonable and probable cause to do so. His statement formed the
foundation for the investigation which followed in which
he made
serious allegations about Lincoln, many of which have no bearing on
the charges in the criminal trial.
[26]
The concession on behalf of the Minister that employees of the SAPS
had initiated the process does not equate to ‘setting
the law
in motion’ or ‘instigating’ a prosecution. In
Relyant Trading
Malan JA noted that the concept of ‘instigation’ is one
of some complexity.
[15]
In
Lederman
,
this court noted that inherent in the concept of ‘set the law
in motion’, ‘instigate’ or ‘institute
the
proceedings’, is the causing of a certain result, namely a
prosecution, which involves the vexed question of causality.
[16]
Furthermore, in
Lederman
this court noted a similar approach reflected in the
American
Restatement of the Law of Torts
Vol III
s 563
, comment g, which records:
‘
A private person who gives a public
official information of another’s supposed criminal conduct, of
which the official is
ignorant, obviously causes the institution of
such subsequent proceedings as the official may begin on his own
initiative, but
giving such information or making an accusation of
criminal misconduct does not constitute a procurement of the
proceedings initiated
by the officer if it is left entirely to his
discretion to initiate the proceedings or not. Where a private person
gives to a prosecuting
officer information which he believes to be
true, and the officer in the exercise of his uncontrolled discretion
initiates criminal
proceedings based upon that information, the
informer is not liable under the rule stated in this section even
though the information
proves to be false and his belief therein was
one which a reasonable man would not entertain. The exercise of the
officer’s
discretion makes the initiation of the prosecution
his own and protects from liability the person whose information or
accusation
has led the officer to initiate the proceedings.’
[17]
[27]
As observed in
Baker
[18]
the test is whether the informer did more than tell the police the
facts and leave him to act on his own judgment. Thus, in
Lederman
at 197 Jansen JA
quoted with approval from the judgment of Price J in
Madnitsky
v Rosenburg
1949
(1) PH J5: ‘[W]hen an informer makes a statement to the police
which is wilfully false in a material particular, but
for which false
information no prosecution would have been undertaken, such an
informer “instigates” a prosecution’.
This passage
reaffirms the requirement for a causal connection between the false
information provided and the institution of the
prosecution.
[28] In considering the ‘instigation’ of
proceedings in Australia, in
Skrijel v Mengeler
[2003] VSC 270
para 199, Nettle J stated:
‘
The defendant must have been “actively
instrumental” in setting the law in motion. Merely supplying
information, however
incriminating, to the police on which they
eventually decide to prosecute is not the equivalent of launching a
prosecution; the
critical decision not being his, (the stone set
rolling) is simply a matter of suspicion. These days one should
hesitate to credit
an informant with having overcome the scepticism
of a police trained to test the reliability of complaints. On the
other hand,
an informant may be regarded as a prosecutor if his
information virtually compels the police to prosecute, even more when
he deliberately
deceives the police by supplying false information
without which they would not have proceeded.’
The
statement accords with the legal position in this country and is
apposite to the facts in this case where Knipe did not accept
Smith’s
affidavit at face value. He vigorously challenged the veracity of
Smith’s assertions to the extent that Smith
had felt
threatened. Lincoln’s case was firmly founded, as it had to
have been, upon the statement contained in the final
sentence of the
dictum of Nettle J.
[29]
I turn to consider the facts in this case. Many serious and
incriminating allegations made by Smith in his affidavit had no
bearing on any of the charges instituted. While those allegations may
have had some relevance to the enquiry into
animus
injuriandi
, they
were irrelevant to the present enquiry as they did not result in any
prosecution. I shall accordingly confine myself in what
follows to
the issues that were material to the charges instituted.
[30]
Where multiple charges have been brought against a plaintiff, as in
this case, each charge is discrete and must be evaluated
independently.
[19]
As recorded earlier, in compiling its report to Fivaz the evaluation
team identified numerous matters which had come to their attention
as
a result of the information from, amongst others, Smith. They had
identified a number of matters which, they believed, constituted
prima facie evidence of criminal conduct. The only charges referred
to in Smith’s affidavit, amongst those identified by
the
evaluation
team as having
warranted criminal prosecution, were those relating to Mangiagalli.
In this regard Smith stated as follows:
‘
I know that Mark (Ontong) had involvement
with Jacques Mangiagalli and took care of Mangiagalli’s needs
during Director Lincoln’s
visit to Angola with Vito Palazzolo.
I was not involved with Mangiagalli at all. The only information that
Mangiagalli supplied was a couple of Italian names and telephone
numbers which had no value at all. Substantial amounts of money
was processed through our office in recruiting Mangiagalli.
I did not
confront or express my concern about him to the director.
When it became known in the press about
Mangiagalli’s dubious release, I was summoned to the
Attorney-General’s office
on instructions of the
Attorney-General. Mr Jasper Tredoux questioned me about Mangiagalli.
I told him that I had no knowledge
of that matter and that he was
handled by Director Lincoln and Captain Benn. Mangiagalli did not
provide any information relating
to project “Intrigue”.
To my knowledge he is still seen by Director Lincoln and Captain
Benn.’
[31]
Smith said that the issue relating to Mangiagalli’s release was
exposed while Lincoln was in Angola. Upon his return,
he continued,
Lincoln had attended a meeting with Commissioner Blaauw. He
thereafter informed him that Blaauw had been appointed
by the
Attorney-General to investigate the matter but that it was not a
matter of concern as Mangiagalli’s release had apparently
been
arranged at ‘ministerial level’. Lincoln also told him
that the information which emerged about his release ‘fits
in
our alley’, as Mangiagalli’s life would have been in
danger had he returned to jail. Smith complained about what
he
perceived were overly generous rewards paid to Mangiagalli for
information provided to the PITU.
[32]
Smith did not, however, lay any charge in this matter. He merely
provided an account of what he said had occurred at the unit.
So,
even if it is accepted that he was motivated by his resentment for
Lincoln, as the trial court found, and that he may have
exaggerated
certain aspects of his evidence, he testified that he believed that
the content of his account was true. There was
no evidence to the
contrary, at least not in respect of the averments which gave rise to
this charge. The allegations made in respect
of Mangiagalli could
never on their own have given rise to charges of fraud. In any event,
it is apparent that the question of
his release was already under
investigation before Smith had deposed to his affidavit and Senekal
testified that he had previously
been involved in that investigation.
[33]
In respect of the motor vehicles (charges 1-10), Smith recorded in
his affidavit that a number of vehicles had been allocated
to the
PITU at the commencement of its mandate. This included a Nissan
Sentra for Lincoln. He stated that Lincoln had also arranged
a 2.8l
Audi A4 for his own use. The Nissan Sentra was thereafter used by
Captain Engelbrecht and Viljoen. Later, when Inspector
Wright left
the PITU his vehicle, a red Toyota Corolla, was allocated to Mark
Ontong, who was registered as a source with the PITU.
Smith
questioned whether Ontong was authorised, in that capacity, to drive
a State vehicle without having to fund its petrol expenses.
[34]
Smith said that Ontong had been involved in an accident with the
vehicle and he did not know whether he had disclosed this.
These
averments, concerning the apparent misuse of the resources allocated
to the PITU, were pertinent to the evaluation function
which
the
evaluation
team
was mandated to perform. They are suggestive of maladministration.
However, Smith had not alleged fraud or any other criminal
offence in
respect of the vehicles, nor did the evaluation team consider his
allegations in respect of the motor vehicles to amount
to criminal
offences. The facts alleged by Smith in this regard were
substantially true, save that Lincoln testified that he did
not
specify the type of vehicle which was to be obtained. Lincoln’s
defence was that the PITU had the necessary authority
to hire the
vehicles, a matter to which Smith did not allude.
[35] In respect of counts 11-31 and 33-34 Smith recorded
the following:
‘
At the same time we took occupation of the
office, the safe house was obtained. Captain(f) Van der Westhuizen
made arrangements
per motivation to Head Office to purchase and
furnish the said “Safe House”. Furniture to the amount of
R37 000-00
was purchased.
Director Lincoln immediately occupied the “Safe House”
when the furniture was delivered and his wife and three children
joined him in the house when the Gauteng schools closed in December
1996.
All the expenses of the “Safe house” were paid on a month
to month basis from the police’s open account.
Director Lincoln and his family stayed in this
“Safe house” until January 1997 when they moved to
another vacant dwelling
. . . . The initial “safe-house”
was rented at R2 500 per month. The latter “Safe House”
was rented
at R5 000-00 per month.’
(sic)
[36]
Smith alleged that during Lincoln’s residence in the safe house
he had claimed monthly subsistence, which were submitted
by Van der
Westhuizen on his behalf and thereafter paid to him in cash. Again,
these facts are not in dispute and are, on Lincoln’s
own
version, substantially true. Smith had not alleged any dishonesty or
fraud. In the criminal trial Lincoln’s defence was
that he was
entitled to claim the subsistence.
[37]
In respect of counts 35-37, Smith had not made any allegation in
respect of payments made to Gillot. In his affidavit Smith
referred
to an operation which occurred in Johannesburg where Lincoln had
allegedly advised the Italian authorities that he had
tracked an
Italian fugitive who they had kept under close observation. Members
of the Italian police had flown to South Africa
to witness the
operation where a house would be searched. Smith had also flown to
Johannesburg where he met Lincoln and Benn. He
alleged that Lincoln
had shared a bedroom with Gillot, a registered source of the PITU and
also a known prostitute. These were
serious allegations. However,
they had no causal connection with the charges against Lincoln in
respect of payments made to Gillot.
[38] In respect of count 39, Smith had set out his
knowledge of Lincoln’s visit to Angola together with Palazzolo,
which was
not in dispute. Lincoln had advised Smith that he had
business in Zaire with the Deputy President. But he had not disclosed
his
visit to Angola. When Smith discovered these facts he
confronted Lincoln, who then informed him of the trip. Smith stated:
‘
He produced a letter dated 1997-04-30 which
was for a visa for Director Lincoln to go to Angola. The letter is on
a letterhead of
Cape International Holdings which is a front company
used by Vito Palazzolo. The letter is addressed to Mr Rafael of the
Angolan
Consulate and is a close associate of Palazzolo. The letter
is also signed by Vito Palazzolo under his alias Robert von Palace.’
[39]
Smith alleged that Lincoln had not applied for official leave during
this period of absence. There is no reference to S &
T claims, or
to any fraud in this respect, and the averments in the affidavit
could never have founded grounds for any prosecution.
[40]
There was no reference at all to the facts that gave rise to counts
38, 40, 41 or 42 in the affidavit. Whilst the evidence
suggests that
Smith made further affidavits after the initial account, they were
not introduced in evidence.
[41]
The further investigation which followed as a result of Smith’s
affidavit gave rise to the charges that Lincoln faced.
Clearly his
affidavit was the trigger that gave rise to the investigation.
However, the facts alleged in the charge sheet relating
to fraud
could only have been obtained from other sources. Smith had not laid
any charge against Lincoln. Nor had he made any allegation
of fraud
against him. And no evidence was presented to establish that any
allegation contained in his affidavit, in respect of
the charges
against Lincoln, was wilfully false. The findings of the majority in
this regard are not supported by the content of
the affidavit.
Smith’s allegations of Lincoln’s collusion with Palazzolo
were not causally connected to any of the
charges. Quite simply, the
evidence did not establish that Smith had ‘instigated’
any of the prosecutions.
[42]
The
evaluation
team
were
instructed to carry out their task prior to receipt of any
information from Smith. Much of the information that Smith had to
share was relevant to their investigation. They were obliged, as
police officers, to receive the information. The potentially criminal
conduct identified by the evaluation team which emerged from the
evidence made available to them, largely from the affidavit of
Smith,
related to allegations of
crimen
injuria
,
attempted
murder, driving under the influence of alcohol, reckless and
negligent driving and one instance of fraud, arising from
Mangiagalli’s release from custody. In this respect, as
recorded earlier, a docket had previously been opened and Senekal
had
in fact been involved in that investigation. It had not originated
from Smith’s affidavit, nor was there any evidence
to suggest
that the prosecution would not have ensued but for Smith’s
allegation. On the contrary his affidavit records that
he had not
been involved in the release and has no knowledge thereof.
The
evaluation
team
merely recorded their findings and recommended that those issues be
investigated. This they were duty bound to do so. Neither
Senekal nor
SS Bouwer were in any way involved in the investigation or the
prosecution thereafter. They did not make common
cause with the
prosecution, nor did they assist in the further investigation.
SS Bouwer had not instigated the prosecution
as required to
sustain a cause of action under the
actio
iniuriarum.
[43]
Knipe and Rossouw had carried out the detailed investigation on the
instruction of Fivaz. They had opened numerous dockets,
some of which
related to matters which had their origin in Smith’s affidavit,
and which resulted in prosecution. This, without
more, could not
found a claim for malicious prosecution. Lincoln’s case, as
recorded earlier, was that they had procured
false statements and
placed witnesses under duress to implicate him. On this basis he
contended that they had instigated the prosecution;
that they had
wilfully presented information to Bouwer which they knew to be false
and had been obtained under duress, and that
this information had
caused the prosecution.
[44]
Lincoln (as plaintiff) was required to prove that members of the SAPS
– in particular Knipe and Rossouw – had acted
without
reasonable and probable cause. The phrase has been held to mean an
honest belief founded upon reasonable grounds that the
institution of
proceedings is justified. The concept involves both a subjective and
an objective element.
[20]
[45]
The material portions of the affidavit of Smith which relate to the
charges brought against Lincoln are set out earlier. The
facts set
out in Smith’s affidavit which relate to the charges instituted
were not seriously contested. What Lincoln set
out to achieve in the
trial was to establish his innocence. It is to this end that his
evidence was directed. But this fell far
short of establishing the
absence of reasonable and probable cause in respect of which he bore
the onus. Knipe and Rossouw had
obtained statements from numerous
witnesses in respect of each docket. Some incriminated Lincoln but
others were favourable to
him. All of this – incriminatory and
exculpatory – were placed before Bouwer. It was Bouwer’s
assessment of all
the material before him in the dockets that led to
the ultimate decision by first the Attorney-General and secondly, the
NDPP to
proceed with the charges. Objectively reasonable and probable
cause can only be gleaned from an analysis of the contents of the
dockets. It involved the weighing up of the evidence favourable to
Lincoln against that incriminating him and testing the averments
contained therein against the objectively established facts and the
real evidence contained in the docket. There is no evidence
that
Knipe and Rossouw actively sought to persuade the Attorney-General to
institute the prosecution. To the extent that they may
have expressed
their views as to the case made in the dockets, there is nothing
untoward about such conduct.
[21]
More was required.
[46]
All the dockets relating to the prosecution were duly discovered and
in possession of Lincoln’s representatives at the
time of the
trial. This notwithstanding, they did not produce these to the court
and when Knipe, Rossouw and Bouwer testified,
the dockets were not
put to these witnesses in order to enable them to identify the
evidence contained in the docket which justified
the prosecution.
This fatal shortcoming was compounded by the fact that the witnesses
had testified some 22 years after the event.
[47]
In his evidence, and in his cross-examination of Knipe and Rossouw,
Lincoln referred to selected statements which favoured
him. But
despite having had his attention specifically drawn to the need to
present evidence contained in the dockets as a whole,
to obtain the
full picture, counsel for Lincoln chose not to do so. The court was
therefore unable to assess whether Knipe and
Rossouw, objectively
viewed, had reasonable grounds to believe that a prosecution was
justified. Lincoln accordingly failed to
establish the objective
requirement of reasonable and probable cause. Indeed as a matter of
fact, at least three advocates in the
office of the Attorney-General
and the NDPP all formed the view that the dockets exhibited
reasonable and probable cause to prosecute
those charges which were
instituted. And there was no suggestion before us that they were all
party to a conspiracy to prosecute
him despite the absence of
reasonable and probable cause.
[48]
As far as the subjective element of this requirement is concerned,
Knipe and Rossouw testified that they believed that the
evidence
which they had obtained made a proper case to support the charges.
This was confirmed by Bouwer. The majority is of course
correct that
the reasonable and probable cause which may be apparent from the
docket could have been contrived. That was Lincoln’s
case. But
what the majority lost sight of was that Lincoln bore the onus to
prove this, as I have pointed out earlier. He did not
even attempt to
do so. In my view the minority was therefore correct in holding that
Lincoln had not prima facie established the
absence of reasonable and
probable cause and that the Minister ought to have been absolved from
the instance.
[49]
The thrust of Lincoln’s case related to the conduct of Knipe
and Rossouw, as set out in the particulars for trial, and
was aimed
at establishing that they acted with
animus
injuriandi
without
an honest belief in Lincoln’s guilt. The case which the
Minister came to court to meet was that Knipe and Rossouw
had
procured false statements under duress to dishonestly implicate him.
The deponents to the objectionable statements were identified
in
Lincoln’s particulars for trial, but were inexplicably not
called to testify in support his case. There was no suggestion
that
any of them, save for Palazzolo, were not available to testify.
[22]
This justifies the inference that they would not support his
case.
[23]
[50]
Smith was called to testify on behalf of the Minister. He testified
that he was indeed placed under very considerable pressure
by Knipe.
This Knipe acknowledged. Knipe explained that he had not accepted the
evidence of Smith at face value and had placed
him under pressure to
verify the facts. Smith acknowledged that he was aware of his
obligation to speak the truth and maintained
that he believed that
the content of his affidavit was true. This was supported by the
evidence of Knipe that he ensured that no
docket was opened until
corroboration was found for Smith’s averments.
[51]
Lincoln had failed to adduce in evidence, in particular, the witness
statements of Van der Westhuizen, Benn and Gillot (or
an affidavit by
Palazzolo) which he alleged to have been false or procured under
duress. He had also failed to identify any aspect
of the statements
made by these witnesses which falsely implicated him. Under
cross-examination, when asked to identify the witnesses
who had been
coerced to lie, Lincoln was unable to do so. Moreover, he was
constrained to acknowledge that none of these witnesses
testified in
the criminal trial that they had been pressurised to furnish
untruthful evidence. It was not suggested to either Knipe
or Rossouw
that they had placed pressure upon any witness to lie or that they
had intimidated witnesses to implicate Lincoln. For
their part, they
denied that they had prevailed on any witness to do so.
[52]
Lincoln was also constrained to acknowledge that each of the persons
whom he alleged had been pressurised to make false statements
against
him denied this when testifying in the criminal trial. Those who made
contradictory statements during the investigation
testified in the
criminal trial that they had initially made false statements of their
own accord in order to protect Lincoln.
Both Smith and Van der
Westhuizen, who testified for the Minister denied that they had been
pressurised to make false statements
against Lincoln.
[53]
Lincoln accordingly failed to establish the alleged conduct
attributed to Knipe and Rossouw in his pleadings. It follows that
he
did not establish that they had wilfully placed false evidence before
the Attorney-General or that they had no honest belief
in the
credibility of the statements presented. They left the decision to
prosecute or not to the Attorney-General. On these additional
grounds
the Minister cannot be held liable.
[24]
[54] In the result:
1 The appeal succeeds with costs,
including the costs of two counsel.
2 The order of the full court is set aside and replaced
with the following:
‘
The appeal is dismissed with
costs, including the costs of two counsel.’
__________________________
J
W EKSTEEN
ACTING JUDGE OF APPEAL
Appearances
For
appellant: C Webster SC (with him M Adhikari)
Instructed
by: State Attorney, Cape Town
State
Attorney, Bloemfontein
For
respondent: J A Nortje (with him A J Krige)
Instructed
by: Catto Neethling & Wiid Inc, Cape Town
Neuhoff
Attorneys, Bloemfontein
[1]
The judgment is reported as
Lincoln
v Minister of Justice and Constitutional Development and Another
[2017] ZAWCHC 108.
Initially, the action was against the Minister of
Justice and Constitutional Development, as first defendant, and the
Minister
as second defendant. The claim against the first defendant
was however withdrawn prior to trial.
[2]
The full court held that he had not established
his claim in respect of the charges of drunken driving and leaving
the scene of
the accident. In this judgment the facts relating to
these charges are omitted.
[3]
‘[T]he South African Police Service Rationalisation
Proclamation, 1995, published by Proclamation 5, 1995, dated 27
January
1995.’
[4]
The evaluation team identified a number of other
matters that were raised in the affidavit as potentially criminal
and worthy
of investigation. However, no prosecutions resulted from
these allegations.
[5]
That Adv Bouwer and SS Bouwer have the same
surname is merely coincidental.
[6]
Count 42 was however withdrawn.
[7]
Counts 46 and 47 were the counts related to
drunken driving and leaving the scene of an accident.
[8]
The undisputed evidence was that Palazzolo
declined to favour Knipe with any statement at all.
[9]
The undisputed evidence is that Williams made
only one statement to Rossouw.
[10]
Lederman v Moharal Investments (Pty) Ltd
1969
(1) SA 190
(A) at 196H
et seq
.
[11]
See
Minister for
Justice and Constitutional Development and Others v Moleko
[2008] ZASCA 43
;
2009 (2) SACR 585
(SCA); and
Woji
v Minister of Police
[2014] ZASCA 108
;
2015 (1) SACR 409
(SCA) para 33.
[12]
See
Beckenstrater v
Rottcher and Theunissen
1955 (1) SA
129
(A) at 136A-C;
Van der Merwe v
Strydom
1967 (3) SA 460
(A) at 467C-E;
and
Groenewald v Minister van Justisie
1973 (2) SA 480
(O) at 482G-H. See also
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2006]
ZASCA 162
;
[2007] 1 All SA 375
(SCA) para 14.
[13]
See
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) paras 37-38; and
Relyant
Trading
ibid
para 14.
[14]
This passage in
Waterhouse
was approved by this court in
Lederman
op cit at fn 9.
[15]
Relyant Trading
op
cit at fn 11 para 9.
[16]
Lederman
, op cit
at fn 9, at 196H-197A. See also
Minister
van Polisie v Van der Vyver
[2013]
ZASCA 39
para 29.
[17]
Lederman
, op cit at fn 9, at 197G-198A.
[18]
Baker v Christiane
1920 WLD 14.
[19]
Minister of Safety and Security NO and Another
v Schubach
[2014] ZASCA 216
para 13.
[20]
Beckenstrater
,
op cit at fn 11, at 136B-C
;
Prinsloo and Another v Newman
1975 (1) SA 481
(A) at 495G-H;
Relyant
Trading
op cit at fn 11 para 14; and
Moleko
op
cit fn 10 para 20
.
[21]
See
Prinsloo
ibid
at 494C-E and
R
v Patel
1944 AD 511
at 519.
[22]
As set out earlier, the undisputed evidence is
that Palazzolo did not favour Knipe with any affidavit.
[23]
Elgin Fireclays Limited v Webb
1947 (4) SA 744
(A) at 749-750.
[24]
See
Moleko
op
cit fn 10 paras 16 and 17.