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[2024] ZALMPPHC 136
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M.E.S v Minister of Police and Another (4996/2019) [2024] ZALMPPHC 136 (5 September 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 4996/2019
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES:
(3)
REVISED: YES/NO
SIGNATURE:
Naude-Odendaal J
DATE:
05/09/2024
In the matter between:
M[...] E[...]
S[...]
PLAINTIFF
and
MINISTER OF
POLICE
1
st
DEFENDANT
DIRECTOR OF PUBLIC
PROSECUTION
2
nd
DEFENDANT
JUDGMENT
NAUDE-ODENDAAL J:
[1]
The Plaintiff instituted action for damages against the 1
st
and 2
nd
Defendants. In respect of the 1
st
Defendant, the claim is premised on unlawful arrest and detention and
by members of the South African Police Service (SAPS). In
respect of
the 2
nd
Defendant, the claim is premised on malicious
prosecution. This notwithstanding, the Plaintiff submits the 2
nd
Defendant is jointly liable with the 1
st
Defendant for
further detention.
[2]
The Plaintiff was arrested on or about the 21st of
November 2017 at Madobi Village, Limpopo Province. The Plaintiff was
thereafter
detained at Hlaganani SAPS and Matatshe prison and
appeared in Court on the 30
th
of November 2017. The Plaintiff was charged with
rape of a minor child. The charges were withdrawn against him on 14
September 2018.
[3]
The Plaintiff filed a notice to amend and amended
particulars of claim. The amended particulars of claim and notice to
amend were,
however, abandoned and the trial proceeded on the first
particulars of claim and plea filed by the parties.
[4]
It is not in dispute that the Plaintiff was
arrested for alleged rape of a minor child and was detained and
prosecuted, it is however
disputed that the arrest and detention was
unlawful and the prosecution was malicious. It should further be
noted that the Plaintiff
was not detained until 14 September 2018,
but only until 6 June 2018 when he was released on warning. There was
an earlier bail
application at the beginning of the Plaintiff’s
appearance at court, but the Plaintiff was referred for observation
and psychiatric
evaluation in terms of
Sections 77
,
78
and
79
of the
Criminal Procedure Act, 51 of 1977
. It was only after the psychiatric
evaluation and report that the Plaintiff was released on warning.
[5]
The 1
st
Defendant's case is that the arrest and detention
was lawful and the 2
nd
Defendant's case that the Prosecutor had no malice
when they decided to place the matter on the roll and proceed with
prosecution.
It was submitted that the prosecutor who dealt with the
case of the Plaintiff acted in good faith.
LEGAL POSITION:
[6]
Having admitted the arrest of the Plaintiff
without a warrant of arrest, the onus to prove that the arrest was
lawful, rests on
the Defendant. The Defendant had to prove on a
preponderance of probabilities that the Arresting Officer at the time
of the arrest,
harboured a reasonable suspicion that the Plaintiff
had committed a Schedule 1 offence, which must be objectively
justifiable.
[7]
The jurisdictional pillars for reliance on
Section
40(1)(b)
of the
Criminal Procedure Act, 51 of 1977
,
have
to be met by the Respondent. The legal position regarding the
justification of a warrantless arrest in terms of
Section
40(1)(b)
of the
Criminal Procedure Act, 51 of 1977
was
stated as follows in
Duncan v Minister
of Law and Order
1986 (2) SA 805
(A) at 818G-H:-
"The so-called
jurisdictional facts which must exist before the power conferred by
s40(1)(b) of the present Act may be invoked,
are as follows:
1)
The arrestor must be a peace officer.
2)
He must entertain a suspicion.
3)
It must be a suspicion that the arrestee
committed an offence referred to in Schedule 1 to the Act (other than
one particular offence).
4)
That suspicion must rest on reasonable grounds.
If the jurisdictional
requirements are satisfied, the peace officer may invoke the power
conferred by the subsection, i e, he may
arrest the suspect. In other
words, he then has a discretion as to whether or not to exercise that
power (cf
Hoigate Mohammed v Puke
(1984) 1 All ER 1054
(HL)
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. Whether every improper
application of a discretion conferred by the subsection will render
an arrest
unlawful, need not be considered because it does not arise
in this case. All that need be said for the purposes of the point
under
consideration is that an exercise of the discretion in question
will be clearly unlawful if the arrestor knowingly invokes the power
to arrest for a purpose not contemplated by the legislator. But in
such a case, as is generally the rule where the exercise of
a
discretion is questioned, the onus to establish the improper object
of the arrestor will rest on the arrestee (cf
Divisional
Commissioner of S A Police, Witwatersrand Area, and Others v S A
Associated Newspapers Ltd and Another
1966 (2) SA 502
(A) 512;
Groenewa/d v Minister van Justisie
1973 (3) SA 877
(A) 884)"
[8]
In
Duncan v Minister
of Law and Order
1986 (2) SA 806
(A) at 814D-E,
the
following was held:-
"The test is not
whether a policeman believes he has reason to suspect, but whether on
an objective approach, he in fact has
reasonable grounds for his
suspicion."
[9]
In
Biyela v Minister
of Police
2022 (1) SACR 235
(SCA) at para 34 - 35, Musi AJA
held
as follows:-
"[33] The
question whether a peace officer reasonably suspects a person of
having committed an offence within the ambit of
s 40(1)(b) is
objectively justiciable. 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.
[34]
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.
[35]
What is required is that the arresting
officer must form a reasonable suspicion that a Schedule 1 offence
has been committed based
on credible and trustworthy information.
Whether that information would later, in a court of law, be found to
be inadmissible is
neither here nor there for the determination of
whether the arresting officer at the time of arrest harboured a
reasonable suspicion
that the arrested person committed a Schedule 1
offence." (footnotes omitted)
[10]
In the present matter, it is common cause that the
Plaintiff was arrested by a police officer. The police officer
entertained a
suspicion that the Plaintiff had committed an offence
of rape of a minor child which is in fact an offence falling under
Schedule
6 of the
Criminal Procedure Act, 51 of 1977
and much higher
than a Schedule 1 offence.
[11]
From the evidence presented on behalf of the Defendant, it is clear
that the arresting officer
had reasonable grounds to affect a
warrantless arrest as envisaged in
Section 40(1)(b)
of the
Criminal
Procedure Act, 51 of 1977
. Warrant Officer Chabalala testified that
he is a police officer stationed at Giyani Family Violence and Child
Protection Unit.
He is an Investigating Officer and has been in the
employ of the South African Police Services for 30 years. On the 21
st
of November 2017, Warrant Officer Mongani, an investigating officer
in the present case, approached him and informed him that he
was busy
with a rape case. The victim was 8 years old. The allegations were
that she was raped by her father.
[12) W/O Chabalala
further testified that he then accompanied W/O Mongani to the
Complainants home where they interviewed her. The
Complainant then
accompanied W/O Chabalala and W/O Mongani and pointed out the
suspect's home (Plaintiffs), as well as the suspect
(Plaintiff). W/O
Chabalala showed the Plaintiff his appointment card, informed him of
his rights and arrested him.
[13]
W/O Chabalala testified that before the Plaintiff was arrested and
before going to the Complainant's
home to interview her, he had
perused the docket, the statements and the J88. There were injuries
noted on the J88. He went to
the Complainant's home to verify the
facts before he proceeded to arrest the Plaintiff. The victim child
confirmed to him that
she was raped by her father and pointed him
out.
[14]
W/O Mongani also testified that he is an
Investigating Officer at SAPS Giyani with 33 years of experience at
SAPS. According the
W/O Mongani, upon receipt of the complaint, he
took the docket and started with his investigations. The docket was
opened on the
5
th
of
November 2017 and he only arrested the Plaintiff on the 21
st
of November 2017 after having done some
investigations. He testified that he read the docket before he
affected an arrest. According
to W/O Mongani, he considered the J88
and the injuries inflicted on the child, he also read and considered
the statements in the
docket. W/O Mongani also took the statements of
the other children. He went to the Complainant, S[...] T[...] and
interviewed her.
He also requested the Complainant to accompany them
to show them where the perpetrator lives and point him out,
whereafter the
Plaintiff was arrested.
[15]
In my view, the arrest was therefore lawful. This
matter however does not end here. The Plaintiff also claimed for
unlawful detention.
In
Mvu v Minister of
Safety and Security
2009 (6) SA 82
at 89F-G and further at 90A-D,
Willis J
stated that
"there
is an important distinction between the [arrest and detention which
is] not properly understood by many".
Even
where an arrest is lawful, a police officer must apply his mind to
the arrestee's detention and the circumstances relating
thereto, and
"this includes applying his or her
mind to the question of whether detention is necessary at all".
If the officer fails to do this, the
detention is unlawful.
[16]
It was held by
Wallis
J in Mvu v Minister of Safety and Security
supra,
that seen in this light, viewed
objectively, the arresting officer should have applied his mind to
avoid detaining the Plaintiff.
In the present matter, due to the
nature of the allegations and charge leveled against the Plaintiff,
and having considered the
injuries indicated on the J88, as well as
the relationship between the victim and the Plaintiff, the members of
the Defendant correctly
applied their minds and detained the
Plaintiff. The detention was therefore also not unlawful.
[17]
The Plaintiffs legal representative submitted that
if the court does not find the arrest and detention to be unlawful,
it should
at least be found that the further detention of the
Plaintiff from 9 March 2018 was unlawful, as the DNA results became
available
on the 9
th
of
March 2018 and according to him, the DNA results did not match that
of the Plaintiff. This contention is however incorrect. The
DNA
results stipulated as follows:-
"The result can
be summarized as follows:
•
No
semen was detected on the exhibit (PA4002585953). Therefore no DNA
comparison will be carried out."
[18]
The fact that no comparison could be carried out
due to no semen being detected does not mean the Plaintiff was
innocent. A trial
court further does not have regard to DNA results
only, in isolation, as the only determinative factor, when convicting
or acquitting
an accused person of an offence.
[19]
It is clear that there were ongoing investigations
in respect of the present matter. The Plaintiff was also sent for
psychiatric
observation due to his own sister having made the
allegations that he was not mentally stable, which report was dated
the 25
th
of
May 2018 according to the Plaintiffs version, and as already stated,
released on warning on the 6
th
of June 2018, although the charges against him was
only withdrawn on the 14
1h
of September 2018 by the 2
nd
Defendant. In my view, also the Plaintiff’s
further detention to 6 June 2018 was not unlawful.
[20]
This then brings me to the second claim against
the 2
nd
Defendant
for Malicious Prosecution. The onus is on the Plaintiff to prove
malicious prosecution. In
Minister of
Justice and Constitutional Development v Moleko (131/07) [2008] ZASCA
(31 March 2008)
the Supreme Court of
Appeal held at para 8 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."
[21]
In this case, the charges were withdrawn against
the Plaintiff, and the fourth requirement does not need to be
entertained any further.
[22]
The requirement that the Plaintiff in an action
for malicious prosecution must prove a lack of reasonable and
probable cause to
initiate, instigate or continue the prosecution on
the part of the instigator or prosecutor is one of the four elements
of that
cause of action. It is a vital link between the lawfulness of
the prosecution and the state of mind of the defendant.
[23]
Whether a prosecution is wrongful or lawful
depends on whether there was a reasonable and probable cause coupled
with the
animus iniuriandi of
the
defendant in instigating, initiating or continuing it. It is not
whether the prosecutor possessed evidence to secure a conviction
since that is for the trial court to decide after the conclusion of
evidence; but, the honest belief by the prosecutor that, having
carefully collected and objectively assessed the available
information, the Plaintiff was probably guilty of the crime. In
coming
to that decision the prosecutor must have grappled with both
the subjective and objective elements in the exercise of that
discretion.
[24]
It is not every prosecution that is concluded in
favour of the accused person that necessarily leads to a successful
claim for malicious
prosecution. So much depends on the absence of a
reasonable and probable cause, and the
animus
iniuriandi
of the defendant in
instigating, initiating or continuing the prosecution. It is widely
accepted that reasonable and probable cause
means an honest belief
founded on reasonable ground(s) that the institution of proceedings
is justified. (See
Beckenstrater v
Rottcher
&
Theunissen
1955 1 SA 129
(A) 136A-B;
Newman
v Prinsloo
1973 1 SA 125
(T)
149H)
[25]
It is about the honest belief of the defendant that the facts
available at the time constituted
an offence and that a reasonable
person could have concluded that the plaintiff was guilty of such an
offence. Ultimately, it is
for the trial court to decide at the
conclusion of the evidence whether or not there is evidence upon
which the accused might reasonably
be convicted. (See
S
v
Lubaxa
2001 2 All SA 107
(A) para 10; S
v
Suhuping
1983 2 SA 119
(B) 120H-121I; S
v
Khanyapa
1979 1 SA 824
(A) 838F-G.)
[26]
The Plaintiff was charged with a charge of rape of a minor child. The
essential elements of this
crime are the perpetrator's (a) unlawful
and (b) intentional (c) sexual penetration (d) with complainant
(victim) (e) without her
consent. And in the present instance a minor
child, aged 8 years old.
[27]
The prosecutor who took the ultimate decision to prosecute the
Plaintiff, testified that at the
time she took this decision, she had
before her the following documents:-
(a)
the case docket;
(b)
the minor child's aunt's statement (Complainant's
Statement);
(c)
the statement of the minor child (victim)
(Victim's Statement); and
(d)
the J88.
[28]
She testified that upon reading the statements and
J88, she realized an offence was committed. The offender was
mentioned. According
to her a
prima
facie
case was made out and it appeared
that a possible crime was committed and that the Plaintiff was linked
to the crime. The matter
was consequently enrolled.
[29]
In the present matter, there was no evidence
presented that the prosecutor (or anybody else) was moved by any
intention other than
to have the Plaintiff stand trial for the
charges leveled against him and to bring him to justice. There was
further also no evidence
that the prosecutor acted without reasonable
and probable cause or that the prosecutor acted maliciously.
[30]
The Plaintiff failed to prove two requirements in
order to succeed with the claim for malicious prosecution, namely
that the 2
nd
Defendant
acted without reasonable and probable cause and that the 2
nd
Defendant acted with malice. The claim for
malicious prosecution therefore stands to be dismissed.
[31]
As a general rule, costs follow the result. There
is no reason to deviate in the present matter from the general rule.
ORDER:
[32]
In the result, I therefore make the following
order:-
1.
The action is dismissed (Both Claims A & B).
2.
The Plaintiff is ordered to pay the Defendant's
costs.
M. NAUDЀ-ODENDAAL
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
:
8 -9 MAY 2024
HEADS
OF ARGUMENT FILED
:
3 JUNE 2024
JUDGMENT
DELIVERED ON
:
5 SEPTEMBER 2024.
This judgment
electronically by was handed down circulation to the parties'
representatives by email. The date and time for hand-down
of the
judgment is deemed to be
5 SEPTEMBER 2024 at 10h00
FOR
THE PLAINTIFF
Adv.
B.M. Khumalo
INSTRUCTED
BY
:
HC Makhubele Inc.
C/O
Baloyi Attorneys
Polokwane
hcmakhubele@webmail.co.za
FOR
THE DEFENDANT
:
Adv. M. Masindi
INSTRUCTED
BY
:
The State Attorney: Polokwane
Chaledwaba@justice.gov.za