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2024
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[2024] ZAFSHC 287
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Tetsoana v Minister of Police and Another (1315/2022) [2024] ZAFSHC 287 (10 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no:1315/2022
In
the matter between
TLHORISO
JOHNY TETSOANA
PLAINTIFF
And
MINISTER
OF POLICE
FIRST
DEFENDANT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
DEFENDANT
Neutral
citation:
Thloriso
Johny Tetsoana & Minister of Police & 01 other (Case no
1315/2022
)
Coram:
Mgudlwa AJ
Heard:
17 April 2024
Delivered:
10 September 2024
Summary
:
Delict – wrongful and unlawful arrest and detention –
proof that arrest and detention was justified and lawful
–
malicious prosecution –
animo
iniuriandi
– Plaintiff’s
claim is unsuccessful.
ORDER
1.
Claims 1 and 2 are dismissed.
2.
The plaintiff is ordered to pay costs on a
party and party scale.
JUDGMENT
Mgudlwa
AJ:
INTRODUCTION
[1]
The plaintiff instituted delictual action and claims damages for
unlawful arrest and
detention against the first defendant (the
Minister) and for malicious prosecution against the second defendant
(the NPA). The
arrest, detention and prosecution arise out of
allegations of rape by the plaintiff.
PLEADING
[2]
The plaintiff instituted two claims for damages: in
Claim 1, in an amount of R400 000, together
with interest and
cost, for unlawful arrest and detention and in Claim 2, in an amount
of R300 000 together with interest
and costs, for malicious
proceedings. The claim in respect of Claim 1, pivots on the
allegation that the plaintiff suffered deprivation
of his freedom;
contumelia
(indignity inflicted); discomfort, severe emotional
stress and psychological trauma; and embarrassment and humiliation
after being
arrested within sight of members of the public and the
plaintiff’s friends being kept in detention. Additionally, in
regard
to Claim 2, the damages suffered are made up of legal fees,
contumelia
and depravation of freedom and discomfort.
[3]
The plaintiff alleges that on 3 December 2020, he handed himself over
to officers at Phuthaditjhaba
Police Station after receiving
information from his colleagues that a police officer was looking for
him. This prompted him to
go to the police station where he was
wrongfully and unlawfully arrested by a member of South African
Police Service (SAPS), without
a warrant of arrest. The alleged
charge in respect of which he was arrested was one of rape. He was
detained at the Phuthaditjhaba
Police Station from 3 December 2020
until 10 December 2020. On 4 December 2020, the plaintiff appeared in
the Phuthaditjhaba Magistrate
Court, where bail was opposed by the
prosecution which resulted in him remaining in custody until his next
appearance on 10 December
2020 when he was released on bail in the
amount of R500. The plaintiff alleged that at all relevant
times, the members of
SAPS and prosecutors were acting in the course
and scope of their employment with the first and second defendant
respectively.
[4]
The plaintiff alleges that his arrest was unlawful for a number of
reasons, which in principle,
are that:
(i)
the unknown member of SAPS did not take into account his rights as
set out in
s 12 of the Constitution of the Republic, and without
good cause, arbitrarily deprived him of his freedom;
(ii)
the unknown officer had no grounds to interfere with his
constitutional rights, as there was
no obligation on the officer to
arrest him and detain him, as he did not pose any danger to himself
and the community; he would
not have evaded his court hearing; there
was no urgency to justify his arrest by SAPS; the officer did not
take into account that
he had a fixed address; and the officer
breached the public law duty not to violate the plaintiff’s
private law right not
to be unlawfully arrested and detained.
[5]
Additionally, the plaintiff pleaded in the alternative that his
arrest was unlawful as the officer
had no
prima facie
case and
or any reasonable grounds to arrest him. Furthermore, he alleged that
the officer did not exercise his discretion properly
and
bona
fide
, as there was no obligation on him to arrest him; he did not
consider alternative methods to bring the plaintiff before a court
of
law; he did not investigate the matter properly prior the arrest; did
not follow up on the plaintiff’s explanation; and
there were no
grounds to suspect that the plaintiff had committed an offence.
[6]
With regard to claim 2, the plaintiff alleged that on 3 December
2020, the member of SAPS, wrongfully
and maliciously set the law in
motion by arresting and charging him with a charge of rape. The
second defendant wrongfully and
maliciously proceeded with the
prosecution from 4 December 2020 until 11 August 2021. During this
time, the employees of the first
and second defendants, acting in the
course and scope of their employment, continued to prosecute the
plaintiff until the charge
against him was withdrawn by the state, on
11 August 2021. They also had no reasonable or probable cause for
charging and prosecuting
the plaintiff, alternatively had no
reasonable or probable cause for continuing the prosecution of the
plaintiff for the offence
of rape, nor did was there any reasonable
belief in the truth of the information at their disposal.
[7]
The defendants, in response, admitted the arrest and detention of the
plaintiff on 3 December
2020, however, they deny that the arrest and
detention were unlawful, as the arresting officer was a peace officer
as described
in s 40(1)
(b)
of the Criminal Procedure Act 51 of
1977 (the CPA) who had a reasonable suspicion that the plaintiff had
committed an offence in
terms of Schedule 1 of the CPA. The
defendants admit that the arresting officer, while arresting, acted
on a reasonable suspicion
and assert that
animus iniuriandi
and malice were absent in the arrest and subsequent prosecution of
the plaintiff. The defendants further pleaded that, based on
the
available facts, there was a
prima facie
case against the
plaintiff, and that, as a result, there was a reasonable cause to
arrest him. They assert further that, due to
lawfulness of the arrest
and detention, and good faith in prosecution, no legal consequences
could flow from the same. The arresting
officer and the prosecutors
acted within the obligatory prescripts of the law, relevant policies,
code of conduct and directives.
The defendants also deny that the
plaintiff gave any explanation or alibi regarding the date on which
the offence was allegedly
committed.
EVIDENCE
OF THE PLAINTIFF
[8]
The plaintiff’s evidence is that on 3 December 2020 he was off
duty and, while doing his
errands, he received a call from his
cohabitant informing him about the police officers who were looking
for him. After requesting
their phone numbers from his cohabitant, he
phoned and made arrangement to meet with them at their offices. On
his arrival at the
police station, he was informed of the rape
allegation. He told the police officer that he was informed by his
colleague about
the allegations. The police officer thereafter told
him that he is going to be detained. According to him, the alleged
victim was
one of the inmates at his place of employment, Thabo
Mofutsanyane Secure Care Centre (Secure Care Centre). He was not
given an
opportunity to give his version of events, at the time of
his arrest. He was lodged in the police cell with 13 to 14 other
inmates.
[9]
On 4 December 2024, he appeared in court and bail was opposed by the
prosecutor. He was then transferred
to Harrismith Correctional
Prison, where he was detained in deplorable circumstances: He had to
sleep on the floor, was bullied
by other inmates and had his food
portion stolen at times. However, the Harrismith Correctional
Facility was slightly better than
the police cells. On 10 December
2020, he again appeared in court and was released on bail of R500.00.
Subsequently, he was suspended
by his employer after being released
on bail. On 21 September 2021, he was called by his employer, where
he was informed that his
suspension was uplifted and he was placed on
cautionary transfer to Clarens. As a result of his detention and
prosecution, his
cohabitant left with his child because she did not
trust him anymore. He was admitted three times at a mental hospital
and he is
currently taking medication to assist in falling asleep.
EVIDENCE
OF THE DEFENDANT
[10]
The defendants called three witnesses, the arresting officer, Warrant
Officer Mantantase Molefe (arresting
officer or Molefe), the control
prosecutor, Goodman Langelihle Makhanya and the prosecutor Mamogale
Nteo (Nteo) who was involved
in the prosecution of the matter on 4
December 2020. Molefe testified that he was attached to FCS unit as
an investigating officer.
On 3 December 2020, he was allocated a
docket pertaining to an allegation of rape. After acknowledging the
docket, he read the
complainant’s statement (A1). Thereafter,
he discovered that the complainant was allegedly raped by someone
known to her.
He visited the complainant and discovered that she was
a juvenile detained at Thabo Mofutsanyane Secure Care Centre. He
interviewed
her in the presence of a social workers since she was 15
years old at the time. The complainant identified the suspect as
‘Short
virgin’, which nickname was given to the plaintiff
by her. According to him, before interviewing the complainant, he
went
to the plaintiff’s place of residence, where he met with
his wife who told him that the plaintiff was somewhere in Qwaqwa.
He
left a message with the wife to tell him about his visit. The very
same day, the plaintiff came on his own to his office. Upon
the
plaintiff’s arrival at his office, he informed him of the
allegations and the latter denied knowledge of the allegations.
[11]
After explaining everything to the plaintiff, he took him to the
Secure Care Centre where they met with a
social worker and the
alleged victim. The plaintiff was identified by the alleged victim as
the perpetrator. Thereafter, the plaintiff’s
constitutional
rights were explained to him and he was taken back to the
Phuthadtjhaba Police Station where he was charged and
detained.
According to Molefe, he completed a bail form where he indicated
that, he is not opposed to the plaintiff being released
on bail.
According to Molefe, due to the seriousness of the offence he could
not release the plaintiff on bail. He was obliged
to refer the matter
to court as it was the court’s prerogative. Furthermore, Molefe
confirmed the complainant’s age
on her birth certificate which
was in the file. He also testified that accused elected not to give a
warning statement.
[12]
The second witness, Goodman Langelihle Makhanya (Makhanya) testified
that he received a police docket as
a control prosecutor from Molefe.
He perused it and subsequently decided to prosecute the plaintiff on
a charge of rape. He testified
that the complainant was 15 years old,
and she was a detainee at the Secure Care Centre at the time of the
alleged offence. He
drafted a charge sheet and allocated it to Nteo
to deal with the matter in court. According to Makhanya, though,
Molefe recommended
that bail be granted, the plaintiff was charged
with a schedule 6 offence and he instructed Nteo to oppose bail and
to request
the Magistrate to postpone the matter for seven days. He
later consulted with the complainant on 31 May, who was adamant that
she
does not want to proceed with the matter. Subsequently, he made a
decision that charges be withdrawn against the plaintiff.
[13]
The third witness, Mamogale Nteo’s role on the matter was only
on 4 December 2020. She confirmed the
better part of Makhanya’s
testimony. According to her, she received the docket from Makhanya,
who instructed her to oppose
bail and request a postponement for 7
days. During cross examination by the plaintiff’s attorney, she
was confronted about
a comment relating to 16 days of activism for no
violence against woman and children, which the plaintiff alleged to
have been
made by her in opposing bail. She vehemently denied the
allegation and asserted that, she opposed bail on instructions given
to
her by Makhanya.
ISSUES
FOR DETERMINATION
[14]
The issues for determination by this court are:
(i)
whether the plaintiff has succeeded in proving the merits of his
claim, in respect of claim
2;
(ii)
whether the first defendant discharged the onus on him to show that
the arrest of the plaintiff
was lawful;
(iii)
whether the plaintiff established a causal link between the actions
of the defendant/ their
employees and the patrimonial loss he alleges
he suffered.
(iv)
the quantum in respect of claim 1 and claim 2.
LAW
AND ASSESMENT
Unlawful
arrest and detention – Claim 1
[15]
It is trite law that the defendant bears the onus of proving that the
arrest and detention of the plaintiff
was justified and lawful. The
test as to whether the arresting officer’s suspicion is
reasonable is assessed objectively.
[1]
Once the required suspicion exists, an arresting officer is vested
with a discretion to arrest, which he must exercise rationally.
When
deciding if an arrestor’s decision to arrest was reasonable,
each case must be decided on its own merits.
[2]
In
Biyela
v Minister of Police
,
[3]
Musi AJA affirmed that the test whether a suspicion is reasonable, is
objectively justiciable held, as a follows:
‘
The
standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than a hunch; it should not be an
unparticularized
suspicion. It must be based on specific and
articulable facts or information. Whether the suspicion was
reasonable, under the prevailing
circumstances is determined
objectively.
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
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.
The arresting officer is
not obliged to arrest based on a reasonable suspicion because he has
a discretion. The discretion to arrest
must be exercised properly.
Our legal system sets great store by the liberty of an individual and
therefore, the discretion must
be exercised after taking all the
prevailing circumstances into consideration.’ (My emphasis.)
[16]
I examine now the conduct of Molefe who arrested the plaintiff on 3
December 2020. He received the docket
at 08h50 on 3 December 2020,
whereafter he read the statement of the complainant which indicated
that the plaintiff inserted his
penis in her mouth, on 19 November
2020, some two weeks prior to 3 December 2020. It is apparent from
the reading of the complainant’s
statement that the plaintiff
is one of the employees at Thabo Mofutsanyane Secure Care Centre
(Secure Care Centre).
Molefe visited the
complainant on the same day and interviewed her in the presence of a
social worker. He testified that the complainant
confirmed the
allegations contained on her statement. He also verified the age of
the complainant from the birth certificate which
was contained in the
file at the Secure Care Centre. On the same day, Molefe went to the
plaintiff’s place of residence where
he met with his wife and
left his contact details. Molefe testified that, the plaintiff came
to his office where he informed him
of the allegations and the
plaintiff did not offer any explanation. He took the plaintiff to the
Secure Care Centre, where the
complainant identified him as a
perpetrator. Molefe, thereafter, took the accused to the police
station where he charged him. After
being informed of his
constitutional rights, the plaintiff elected to make a statement in
court.
[17]
In my view, Molefe, gave a good impression to the court as a
diligent, objective and reasonable officer who
performed his duties
in accordance with the standard required by the law. The preliminary
investigations which Molefe conducted
before the arrest of the
plaintiff buttresses the fact that he had a reasonable suspicion that
an offence referred to in Schedule
1 has been committed and that his
discretion to arrest the plaintiff was properly exercised. I deem it
apposite to mention that
it is uncontroverted that Molefe consulted
with the plaintiff during his preliminary investigations and the
plaintiff elected not
to give any statement with regards to the
allegations. I am not oblivious of the fact that the plaintiff has a
constitutional right
to remain silent, however, his silence thwarted
any attempts by Molefe to have a discussion with him regarding the
allegations
at the time of his arrest. It is my finding that it would
be incongruous to expect Molefe not to act in a manner he did in the
circumstances of this case in order to bring the plaintiff to
justice. In my considered view, failure to act in the manner he did
would be an abdication of his responsibility.
[18]
I am satisfied that the evidence of Molefe surmounts the threshold of
the requirements in section 40(1)
(b)
of the CPA, the relevant
provision of which stipulated that:
‘
(1)
A peace officer may without warrant arrest any person –
(a)
. . .
(b)
Whom he reasonably suspects of having
committed an offence referred to in schedule 1, other than the
offence of escape from lawful
custody;’
Similarily, in my view,
all four jurisdictional factors were established and I am also
satisfied that the first defendant was able
to discharge the onus on
the balance of probabilities that the arrest of the plaintiff was
justified and lawful.
MALICIOUS
PROSECUTION – CLAIM 2
[19]
The plaintiff’s claim for damages against the defendants for
malicious prosecution is a sequel to his
arrest and subsequent
prosecution on a charge of rape. His legal woes only came to an end
after a lengthy period of nine months.
On 11 August 2021, charges
were withdrawn by the prosecutor and the charge sheet reflects that
no reasons were given to the court.
The evidence of Makhanya reveals
that the decision to withdraw charges was made after a consultation
with the complainant.
[20]
In order to succeed (on the merits) for a claim of malicious
prosecution, a claimant must allege and prove
the following four
requirements:
[4]
(a) that the
defendant set the law in motion (instigated or instituted the
proceedings); (b) that the defendant acted without reasonable
and
probable cause; that the defendant acted with ‘malice’
(or
animo
injuriandi
),
and (d) that the prosecution has failed. In this particular matter,
two questions require determination, namely whether the second
defendant acted without reasonable and probable cause and whether the
second defendant acted with malice. The other two requirements
((a)
and (d)) are common cause and need not be proved. It is also common
cause that all officials involved in decision-making were
acting
within the cause and scope of their employment at all material times.
[21]
The test for reasonable and probable cause was set out in
Beckenstrater
v Rottcher and Theunissen
[5]
as follows:
‘
When
it is alleged that a defendant had no reasonable cause for
prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the
plaintiff had probably been guilty of the offence charged; if,
despite his having such information, the defendant is shown not to
have believed in the plaintiff’s guilt, a subjective element
comes into play and disproves the existence, for the defendant, of
reasonable and probable cause.’
[6]
[22]
The manner in which Makhanya and Nteo dealt with the docket is
relevant to assessing whether the Prosecuting
Authority acted with
malice or
animus
injuriandi
.
I deem it apt to mention that Nteo’s involvement on this matter
only appears to be on 4 December 2020, which was the first
court
appearance of the plaintiff. It remains uncontroverted that she acted
on instructions issued to her by Makhanya. Nteo’s
evidence was
corroborated by Makhanya regarding the decision to oppose bail, in
that it was his instructions. This is also fortified
by the
instructions given on 4 December 2020 as recorded in the
investigation diary
[7]
provided
by Makhanya to the police to conduct further investigations. I deem
it apposite to mention that, according to the bail
information form
attached in the police docket, Molefe did not oppose the release of
the accused either on warning or bail. According
to Nteo, she was
instructed by Makhanya to request a seven-day remand from the court,
because the plaintiff was charged with a
Schedule 6 criminal offence.
Furthermore, there were investigations that had to be conducted. The
matter, according to the charge
sheet, was postponed on 4 December
2020 until 10 December 2020, as recorded by the Magistrate.
[23]
The plaintiff’s legal representative argued that further
detention of the plaintiff from 4 December
2020 to 10 December 2020
was occasioned by the conduct of the prosecutors, who not only did
not apply their minds properly to the
information at hand, but
ignored vital and helpful information by the arresting officer in the
issues of whether bail should be
opposed or not. I deem it necessary
to mention that the plaintiff was legally represented by an attorney
on 4 December 2020. The
procedure after the arrest of an accused in a
criminal court is outlined in s 50 of the CPA. With regard to the
arguments raised
by the plaintiff’s legal representative, the
provisions of s 50(6)
(d)
of the CPA are relevant for
consideration and the relevant provisions of which stipulates that:
‘
The
lower court before which a person is brought in terms of this
subsection, may postpone any bail proceedings or bail application
to
any date or court, for a period not exceeding seven days at a time,
on the terms which the court may deem proper and which are
not
inconsistent with any provision of this Act, if
(i)
. . .
(ii)
. . .
(iii)
. . .
(iv)
it appears to the court that it is
necessary to provide the State with a reasonable opportunity to–
(aa)
procure material evidence
that may be lost if bail is granted; or
(bb)
perform the functions referred to in section 37;
or
(v)
it appears to the court that it is
necessary in the interest of justice to do so.’
[24]
In my view, the conduct of both Makhanya and Nteo falls within the
ambit of section 50(6)
(d)
of the CPA and I interpose to mention that the presiding officer
ceased with the application has the final say in remanding a matter,
which he does by exercise of his discretion. There is no evidence to
suggest that Nteo played any part in improperly influencing
the
exercise of that discretion by the presiding officer, more so that
the plaintiff was legally represented. According to Makhanya,
he read
the complainant’s statement and, in his belief and mindset, the
plaintiff was guilty of rape of a minor, which falls
under Schedule
6. Additionally, he testified that, the statement of the first report
witness confirmed the allegations about the
incidence. Clearly, his
decision to charge the plaintiff on a charge of rape and to oppose
bail was informed by his understanding
of the facts at that time. It
is in my considered view that Makhanya was acting within the
legitimate exercise of prosecutorial
authority in deciding not to
adhere to the recommendations of the arresting officer
.
[25]
While courts may be reluctant to limit or interfere with the
legitimate exercise of prosecutorial authority,
the discretion to
prosecute is not immune from the intervention by the court where such
a discretion is improperly exercised. Having
considered the totality
of evidence in regard to prosecution of the plaintiff
in casu
,
the interference of this court in the discretion to prosecute or the
exercise of prosecutorial authority in this matter is not
warranted.
Clearly there was a
prima facie
case against the accused. This
is fortified by the fact that the plaintiff’s legal
representative argument is pivoted on
a wrong charge preferred by the
prosecution.
[26]
It is common cause that charges were withdrawn by the prosecution
after Makhanya’s consultation with
the plaintiff on 31 May
2021, and the charge was only withdrawn against the plaintiff on 11
August 2021 in the Regional Court.
The matter was transferred on 14
May 2021 to the Regional Court. I deem it apt to mention that
Makhanya consulted with the
complainant after the matter was already
transferred from the District Court to the Regional Court and that
the charge sheet (J15)
reflects the next date as 11 August 2021.
Furthermore, charges were withdrawn on 11 August 2021 in the Regional
Court. In my view,
the delay in withdrawing charges between the 31
May 2021 and 11 August 2021 is on account of the long postponement by
the court.
According to Makhanya, the reason for his decision to
withdraw the charge was
inter alia
, that the complainant was
full of mendacity, and it was difficult to believe any aspect of her
version. Although the matter appears
to have been on the court roll
for more than eight months, there is nothing on record to show that
Makhanya deliberately and maliciously
delayed the matter or acted
contrary to the requirements of his position as a prosecutor to
prejudice the plaintiff. I, accordingly,
find the plaintiff to have
failed in proving the essential element of malice on the part of the
prosecuting authority, thus claim
2 accordingly fail.
Costs
[18]
I now turn to deal with the issue of costs.
Costs are governed by two basic principles: firstly, that unless
expressly otherwise
enacted, the granting thereof rests within the
discretion of the court, which discretion must be exercised
judiciously and secondly,
that generally, costs follow the result,
that is, they are awarded in favour of the successful litigant. In my
view the latter
is found to be the most appropriate, in that costs
should follow the results.
Order
[19]
The following order is made:
3.
Claims 1 and 2 are dismissed.
4.
The plaintiff is ordered to pay costs on a
party and party scale.
Mgudlwa
AJ
Appearances
For
the Plaintiff:
Adv.
C. Zietsman
Instructed
by:
Loubser
Van Wyk Inc.
Unit
1,IL Villiaggio
5
De Havillnd Crescent
Presequor
Park
Lynnwood
Tel:
012 460 1915/16
Ref:
RP VAN WYK/W2559
Pretoria
c/o
Jacob Fourie Inc.
158
Zastron Street
Westdene
Bloemfontein
9301
Tel:
051 101 1680
Ref:
P VENTER/LOU7/0063
For
the First and Second Defendant:
Mr.
VM Morobane
Instructed
by:
State
Attorney
11
TH
Floor, Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
9300
Tel:
051 400 4307/ 4300
Ref:
66/202200275/P7 T
[1]
S
v Nel and Another
1980 (4) SA 28
(E) at 33H. See also
Le
Roux and Another v Minister of Police, Republic of South Africa and
Another
[2022] ZAFSHC 316
para 19.
[2]
Olivier
v Minister of Safety and Security and Another
[2008] ZAGPHC 50
;
2009 (3) SA 434
(W) at 445C.
[3]
Biyela
v Minister of Police
[2022] ZASCA 36
;
2023 (1) SACR 235
(SCA) para 34-36. See also
Minister
of Safety and Security and Another v Sekhoto and Another
[2010] ZASCA 141; 2011 (5) SA 367 (SCA).
[4]
Minister
of Justice and Constitutional Development and Others v Moleko
[2008] ZASCA 43
;
2008 (3) All SA 47
(SCA) para 8.
[5]
Beckenstrater
v Rottcher and Theunissen
1955 (1) SA 129
(A).
[6]
Ibid at 136A-B.
[7]
See:
Index documents, Phuthaditjhaba Police Case Docket under Cas
No:47/12/2020, pg 44.