SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 36734/2019
In the matter between:
In the matter between:
Z[…] I[…] N[…] Plaintiff
and
MINISTER OF POLICE First Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant
JUDGMENT
Van De Venter, AJ
Introduction
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
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[1] Plaintiff instituted an action for damages against the Minister of Police for
unlawful arrest and detention on the one hand claim A and on the other for malicious
prosecution against the National Director of Public Prosecution, claim B.
[2] The Plaintiff partly abandoned claim A for unlawful arrest the morning of the
trial.
[3] The trial proceeded in terms of claim A unlawful detention, claim B malicious
prosecution, as well as the quantum of the claim.
History Of Pleadings
[4] The Plaintiff ’s (N[...]) pleaded case is that he was unlawfully and wrongfully
arrested and detained on 6 November 2016 at Boksburg prison for rape of a minor
child.
[5] N[...] was detained for two years, four months and 23 days before his case
was finalised 27 March 2019 and found not guilty in terms of section 174 of Criminal
Procedure Act 51 of 1977.
[6] His rights were infringed, freedom of movement, privacy, dignity, integrity and
he suffered damages in the amount of R10 million.
[7] N[...] further avers that members of SAPS unlawfully and intentionally set the
law in motion by laying the charge of rape of minor child. Also because of the
members of the SAPS, particularly the investigating officer’s, malicious conduct, the
Plaintiff was prosecuted in open Court.
[8] He avers that the senior public prosecutor maliciously placed the matter on
the roll without careful consideration of facts and circumstances of the allegations.
[9] He avers that he suffered damages in the amount of R 10 million for malicious
prosecution.
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[10] The NDPP prosecution failed because N[...] was acquitted or found not guilty
because the doctor, in his completion of the J88, stated that there was no
penetration, and that minor child is still a virgin.
[11] This concludes the Plaintiff averments in the particulars of claim.
[12] The particulars of claim are full of factual mistakes and no corrections were
done at any stage before the trial started.
[13] Both the claims are defended, and a special plea and plea w ere delivered on
25 February 2020 by both the first defendant, Minister of Police and the second
defendant, NDPP.
[14] The issue in the special plea was dealt with in a Court order dated 9 June
2022 and need no further mention here. The balance of the plea, related to the
unlawful arrest is sifted out because of the abandonment by the Plaintiff . The
unlawful detention and malicious prosecution claim s were denied, and the Plaintiff
bears the onus of proof in this instance.
Plaintiff’s case
[15] I shall now turn to deal with plaintiff’s evidence, and briefly recap same.
[16] N[...] testified that he is now 29 years old and born in 1995, and on that
Sunday, 16 November 2016 he was at his house, 2[ …] Z[…] Z[…], K[…], Gauteng
Province when the investigating officer with the brother of the Child arrived. He was
then informed that he raped the child, and he said he knows nothing about it , and
was taken to the police station.
[17] Monday, 17 November 2016 he appeared in the Magistrate Court in
Boksburg, he had his own private lawyer, and he was there rem anded for 7 days for
a bail application.
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[18] After 7 days he went back to Court. He testified the investigating officer
informed him and I am using his own words “no bail because the Child is not safe,
and will be illtreated by him outside”, he could not explain how, or in what way will
the child be illtreated by him outside and bail was denied.
[19] He confirmed that he had legal representation at that time.
[20] He explained his relationship with the C hild, she is family being his aunt’s
daughter.
[21] He testified and it was later confirmed in cross examination that he was
between 15 and 16 years old and grade nine when the alleged rape offence
occurred. He never finished school. He was 21 when he was arrested.
[22] The Child was starting school in 2011 when she came to stay with him and his
grandmother, who was working at the time.
[23] At the time of the arrest in 2016 he testified that child was not there anymore,
she was then staying at her mother in Balfour, Mpumalanga.
[24] He testified that his private lawyer dumped him, and his lawyer just discussed
the bail with his mother never with him.
[25] He had three legal representatives during the trial , of which two were from
legal aid and one was a big man, he does not know his name. The last lawyer was
Mr du Plooy who told the Plaintiff to abandon the second bail application on 11
December 2017 until the trial, because the case was just about to be heard.
[26] The trial started 13 February 2019 and finished 27 March 2019.
[27] He further testified that when the trial started the doctor testified that he did
not find intercourse and J88 form was never read to him.
[28] The Child testified through the social worker.
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[29] The Mother of the child also testified, and repeated what daughter said that he
raped her all the time at home.
[30] N[...] did not testify at any stage during his trial and Court found him not guilty
and he was discharged. It is important to note that he never gave any statement
during the whole case.
[31] He testified that he was in custody for two years and a few days.
[32] N[...] became emotional when he went on to testify about the personal
experiences and harsh circumstances in the holding cell, giving examples of
overcrowding, little food and terrible ablution facilities, and having to pay for a
“sponge” to sleep on.
[33] He testified in chief that he attended Court several times during the two years
and state prosecutor, or the Magistrate never asked him about bail or for his release.
[34] He confirmed that the investigating officer knew where he stayed, he was
never previously arrested and was not a violent person.
[35] He testified that he claimed R10 million because he had to pay his lawyer,
and he lost his dignity in detention. He lives in the same community, and they see
now another person. He could not again explain why he was detained.
[36] He never returned to school, was traumatised and never received counselling
due to financial constraints of his own and his mother.
[37] He is currently working at Highveld Mushrooms and earns R 1 100 weekly
and has no money left for counselling.
[38] N[...] was subjected to extensive and probing cross examination.
[39] During cross examination the following further information was confirmed:
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39.1 N[...] was working at the time of his arrest, it was a misunderstanding
on the bail recommendation form where it was marked that he was not
working.
39.2 He signed exhibit “A” being the charge sheet but did not check the
contents because he was scared.
39.3 The charge was explained as rape a Schedule 6 offence in terms of the
Criminal Procedure Act 51 of 1977.
39.4 He knows that there was a bail application but does not remember that
his lawyer explained the procedure to him.
39.5 Again, he confirm s, that he cannot remember which lawyer acted on
his behalf at what time, but he remembers two very well being Kganakga & du
Plooy, the third lawyer only discussed the bail with his mother.
39.6 Exhibit “B” was shown to N[...] and he accepted that matter was
postponed for a formal bail application called the first bail on 15 November
2016 and matter transferred to the Regional Court, 7 days after his arrest.
39.7 He again admitted that bail was denied but contended it was because
he was told the complainant (Child) won’t be safe and confirmed that the
process was fair.
39.8 Exhibit “C” was shown to N[...] and he accepted the contents, that on 4
December 2017, the case was postponed to 11 December 2017 and bail
application was abandoned. His lawyer told him to abandon the bail.
[40] N[...] testified that this was not fair to him, that he had to stay in prison for the
whole time and it was the Court’s fault from the beginning therefore it was not fair
towards him because bail was refused. Again, he confirmed that he was not told
what is required in a Schedule 6 charge.
[41] N[...] testified that he thought he will get bail the second time around but
understood that he abandoned the second bail on advice of his own legal
representative. This was testified repeatedly and will for that reason not be repeated.
[42] He also testified that he did not ask any questions, because he thought his
lawyers knew what they were doing.
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[43] It is on record that exhibit “D” shows N[...] testified that when his one legal
representative withdrew, the matter was removed for him to apply for legal aid.
[44] N[...] testified that he trusted his legal representatives completely and both
sides, together with the Court dissatisfied him.
[45] During re-examination N[...] testified again that the requirements of a
Schedule 6 offence, bail application for rape was never explained to him, but that the
full details were discussed with his mother.
[46] The only reason N[...] knew why he was not granted bail was because the
child’s life wat not safe if he is outside. He also mentioned at this late stage that he
thought because he was a first offender he will get bail.
[47] N[...] closed his case without calling further witnesses.
Defendant’s Case
[48] The first and second defendants started their case in defence and called the
Investigating Officer, T Mdlandlamba (TM).
[49] Her evidence in chief can be summarised as follows:
49.1 She testified that she is a witness on behalf of the first Defendant and
has been an Investigating Officer for 18 years and 19 years working for South
Africa Police Service.
49.2 She confirmed that she was the person who arrested N[...] on 6
November 2016. When she was asked about her duties and her role in the
case, she was firm in her answers, and confirmed several times that:
49.2.1 She was part of the first bail process
49.2.2 It was a Schedule 6 sexual offence
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49.2.3 N[...] and the Child were related
49.2.4 There was a possibility that they would come across each other, she
testified that she had a safety concern.
49.2.5 Child was very afraid of N[...]
49.2.6 Child was very young.
She testified that after the docket went to Court she would only be back at Court if
State Prosecutor requested her to be there.
[50] It was put to her that in this matter, she did not do what she was supposed to
do and that was to take the docket to the Court and State Prosecutor, for decision
first.
[51] TM denied that she did anything different than usual by arresting N[...] and not
to take the case for decision first.
[52] The State Prosecutor called her for the 2
nd bail application and said N[...] had
new facts. Upon arrival she was informed that there are no new facts, and she was
released and never returned to Court again.
[53] TM was taken through the warning statement she completed upon
questioning N[...] and after he read document, it was signed by him. She went further
and explained that questioning on the bail recommendation form was done in the
language N[...] understood, therefore where she completed the form to say
“unemployed” N[...] gave the answer, and he understood the question.
[54] TM was taken to exhibit “E” on 080- 37 called a bail recommendation form,
completed by herself, when preparing to take N[...] to Court. The purpose is to know
more about the Accused ( N[...]) and help the State Prosecutor at the time of the bail
application.
[55] This form goes with the docket to the State Prosecutor and gives information
about N[...], but the Court makes the decision to grant bail, not her. She testified
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once a docket goes to Court it is out of her hands and control what happens
afterwards.
[56] In cross examination TM was extensively asked about her experience in child
rape cases, and how a case is prepared to ultimately go to Court.
[57] She testified that her main duty is to:
57.1 Find out what happened;
57.2 Get statement from victim;
57.3 Get doctor’s report
[58] TM was asked to explain how she decided that this is a rape case with the
J88, exhibit “G” she received from doctor. TM’s answer was unequivocal:
58.1 She read the J88 this is the report from the doctor.
58.2 She was not concerned about paragraph three because every injury
can heal in three years. It was put to her that J88 s tates and I quote “no
forceful penetration, laceration, tearing, bleeding”.
58.3 Hymen was broken
[59] TM then confirmed again that she proceeded with the rape case because of
the victims (Child) statement – the Child said she was raped, and she was only 11
years old, and together with the doctor’s report, it carries equal weight.
[60] TM explained that she made the decision to arrest on rape, the Court decides
the bail, she is not the one to decide and in fact she is not mandated to give bail, and
that an Investigating Officer does not have any influence over the State Prosecutor.
[61] During cross examination she was repeatedly questioned over her completion
of bail recommendation form, but the answers stayed consistently the same as per
evidence in chief – the form is for information purpose only.
[62] TM stated that she did oppose bail, but it was not because she had a bad
attitude, and she does not know N[...] personally, she gave her reason to oppose bail
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only because it is a Schedule 6 Offence and victim was too young. BUT the
Magistrate is the one to decide bail, and he does not listen to her.
[63] TM stated that when the docket went to the State Prosecutor , the
investigation was complete from her side on 8 November 2016.
[64] The social worker report and the Kidz Clinic report is compiled for the State
Prosecutor, and not necessary for the investigator officer.
[65] It was put to her that just objecting to bail caused the detention of the Plaintiff
and TM did not comment on this.
[66] The second witness called by the Defendants were Adv T.G. Twala (Twala)
mainly to dispute the claim for malicious prosecution, but also elements of the claim
for unlawful detention.
[67] His evidence can be summarised as follows:
[68] He confirmed his work experience being 21 years as a State Prosecutor, and
12 years in the Special Sexual Offences Court.
[69] I was informed that the first State Prosecutor sadly passed away before this
hearing.
[70] Twala explained his modus operandi when receiving a docket from the
investigating officer to be as follows:
70.1 Receive the docket
70.2 Look into the allegations
70.3 Must be satisfied that the elements of the alleged offence are present
70.4 What are the support documents available, for instance doctor’s report.
70.5 Is the suspect identified
70.6 Is he linked to the offence
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All the above will indicate to him that there is a prima facie case, with
prospects of successful prosecution and the matter will on his decision then
be enrolled on the Court roll.
[71] If there is not enough evidence in the docket he will decline to prosecute,
and/or write instructions to further investigate certain aspects, to the investigating
officer.
[72] Twala testified that the benchmark in his cases is a prime facie case, and he
confirmed that in this present case there was ‘n prima facie case.
[73] Twala explained that he took the following considerations into account when
he took over the case as the second State Prosecutor:
73.1 Twala did not make the initial decision but agreed with the previous
State Prosecutor
73.2 It is not only the decision of the investigating officer to proceed to
prosecution.
73.3 Twala duly considered the contents of the J88, exhibit “G”
[74] Having regard to the J88 which is the Doctor’s report, on which he was
extensively cross examined, it was read into the record. The following explanations
were given on the contents of the J88.
74.1 Paragraph one read: Hymen broken
74.2 Paragraph two: vagina admitted small pinkie finger
74.3 Paragraph three: No forceful penetration, laceration, tearing, bleeding
This last comment by the doctor is not strange he explained because the
alleged rape happened three years before the examination took place.
[75] The evidence in the docket and the age of the child was enough to proceed
with the prosecution.
[76] After making that decision, which is fully within in his mandate to do, he
requested for the social worker’s report and Kidz Clinic report to be completed.
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[77] The Kidz Clinic report is mandatory for the State P rosecutor to establish
whether a child is a competent witness and can tell the story at the trial . This
happens in all cases with children under 18 years of age.
[78] The Kidz Clinic report informs the State Prosecutor if the child is a competent
witness and what kind of help does child need to be able to testify in Court at the
trial.
[79] This process in terms of protocol should take six to eight weeks to complete
but normally it takes 12 – 13 months. The completion of this report is beyond a State
Prosecutors’ control.
[80] Twala continued to also explain that a case can also wait for DNA test results.
Taking DNA swaps are standard procedure, but in the current matter these results
did not delay the case because it was not required.
[81] At this stage of the evidence the chronological order of the court remands
becomes extremely important.
[82] On 23 May 2017 the matter was remanded for disclosure for the accused
defence lawyer to request copies to prepare for trial.
[83] Twala explained that it is practice in this specific court to roll matters every
two weeks for follow up. This was supported by all the appearance sheets in the
docket.
[84] Postponements are necessary and procedural inherent to a criminal
prosecution of this nature.
[85] Twala confirmed that according to him this trial started within a reasonable
time.
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[86] The normal procedure after case is remanded for trial, is that the defence
would approach state prosecutor to reconsider this matter.
[87] The senior State Prosecutor can also be asked by the defence to consider
prosecution. If the Senior State Prosecutor is not satisfied with the prima facie
evidence the case could have been withdrawn. It shows from the document at 014 –
27 that the Senior State Prosecutor did see the docket on 15 November 2015.
[88] Twala explained that a State Prosecutor in any criminal case has no mandate
to consult with the accused or plays any role in the abandonment of a bail application
as he cannot help an accused.
[89] On the 4 December 2017 the case was postponed for a second formal bail
application to 11 December 2017, when bail was abandoned. Only N[...] ’s legal
representative can advise him to abandon bail, this was evident in appearance sheet
014 – 39 to 014 – 41.
[90] On 6 June 2018 the case was postponed because the State Prosecutor was
not there.
[91] On 17 July 2018 the case was postponed because the Presiding Officer was
not there.
[92] On 8 October 2018 the case was postponed because mother of the accused
was not there.
[93] Twala was asked to explain what he did when the mother did not come to
Court.
[94] He explained that without a witness there is no case and he would ask for
postponement and then it would be ultimately in the hands of the Magistrate (Court)
to allow further postponement.
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[95] The cross examination went on to the following and he was asked to explain 2
aspects:
95.1 his decision to prosecute.
95.2 proceeding with prosecution.
[96] He stated that for him prima facie meant:
96.1.1 The necessary elements of the charge are present.
96.1.2 Evidence spoke to allegations.
96.1.3 Is there corroboration present.
[97] Twala further testified that the case for the State is reliant on “our witness”.
And he explained that:
“The case can be good on paper but if the witness is not good then case is
not good.”
[98] It was put to him that because N[...] was found not guilty and Twala caused
him personal harm.
[99] Twala denied this and he does not know what personal harm he could have
caused. He refuted any suggestion that he caused N[...] any personal harm and went
on to explain all three State Prosecutors aligned their minds, which they did and
decided this a prosecutable case.
[100] I find that t his provides strong evidence that Twala’s decision was not
baseless or wholly unsupported by available evidence.
[101] Twala’s experience as a State Prosecutor and his knowledge of prosecutorial
standards and practices lent additional support to the reasonableness of his
assessment.
[102] Twala contended that he agrees that N[...] should not be prejudiced. Himself
as a State Prosecutor should do justice and not only prosecute.
[103] Twala mentioned that the Court cannot unjustly interfere in a case before him.
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[104] In a Schedule 6 offence charge the duty is on the accused N[...] to show
exceptional circumstances to be released on bail. These circumstances are not
defined, and the following are standard and not exceptional, circumstances:
104.1 A known address
104.2 Person will not interfere with witnesses
104.3 First offender
It must be something out of the ordinary, he contended.
[105] The Court has the discretion to decide what is exceptional and Twala was not
the State prosecutor when the bail application was done.
[106] The bail recommendation form was scrutinised by the counsel of the Plaintiff.
Twala explained that this form is a preliminary form to shed light on the personal
circumstances of accused and to guide State prosecutor to information. This form
does not have an influence on bail, only to guide to oppose bail or not. He
corroborated TM’s testimony.
[107] The State Prosecutor must place the facts before the Court to make a just and
fair decision.
[108] A State Prosecutor assists the Court and does not have an influence over
Court.
[109] Twala testified that the following document, the Kidz Clinic report , is the
backbone of the evidence in a minor’s rape case and the trial cannot start before this
report is available and that report was available 7 March 2018. It was available in a
reasonable time.
[110] He explained and confirmed that it was within his rank to withdraw the case
against N[...].
[111] He testified without waiver, several times, that during the lifespan of this
matter it did receive urgent quick attention.
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[112] The defendant wanted to make out a case that delay in the Kidz Clinic report
caused N[...] to be unlawfu lly detained and this was repeatedly denied that Twala
does not need the report to decide on bail.
[113] Twala gave the reason for N[...] being in custody was because he could not
discharge the onus for bail.
[114] It is not the duty of State Prosecutor at any stage to investigate the reason
why N[...] was in custody.
[115] Twala testified that a case must be dealt with as quick as possible, and a
lengthy period would be three to four years later.
[116] When Twala was prompted about his recollection, of the reason of the
outcome of the not guilty order, his undisputed immediate response was that the
Child was emotional, crying hysterical, she did not respond to some of the questions
and therefore there was not sufficient evidence for a reasonable man to convict.
[117] It was put to Twala that the discharge was because of insufficient evidence
before Court. He denied and said the evidence was in the docket and in his
discretion, there was reasonable and probable cause. On paper there was a case,
and it is not in his control what happens in Court.
[118] It was put to him that t his test is both subjective and objective, and the
question is then would another person also decide to prosecute.
[119] Twala confirmed that the fact that the charge was only laid years after the
alleged rape alone, would not have influenced his decision.
[120] The J88, the doctors report was objective proof of the following according to
Twala that:
120.1 An examination was done by a qualified doctor
120.2 11-year old’s hymen was broken
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120.3 Admit a small finger, and he is trained that it is not supposed to be like
that, and the finding supported and corroborated the offence.
[121] He was not concerned about the finding of no forceful penetration, tearing,
laceration, bleeding is because of the time lapse between the offence and
examination.
[122] Twala contended that the puzzle pieces fitted and J88 confirmed the clinical
finding.
[123] The plaintiff placed it on record that the objective facts were not taken into
account by Twala and the rights of N[...] was ignored.
[124] The plaintiff submitted that there was not enough evidence on what is
necessary to prosecute in terms of Section 12 (1) of Constitution.
[125] Twala responded that he did not deprive N[...] of his liberty because of the fact
that the investigating officer and a State Prosecutor opposed bail, he denied that
there were no valid reasons to oppose bail and he has a duty to place the facts in
front of the Court.
[126] Twala admitted that he put the case in motion, but that he did not institute the
action the docket was brought to him. It is not his duty as a State Prosecutor, to
place sufficient evidence before a Court for N[...] to be released.
[127] The Court decides to grant bail, and the onus is on N[...] to convince the Court
to grant bail.
[128] He contended that, to have an address is not a factor that will influence the
Court, the same goes to placing of evidence in front of the Court where the child
lived two years before the date of his arrest. It would also not be the only factor to
look at when bail is considered.
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[129] His evidence throughout the cross examination was consistent that the clear
discretion of bail lies with the Court and onus of proof on the Plaintiff.
[130] Twala never wavered in his answers that there was enough evidence for a
reasonable cause and the three State Prosecutors individually, even the senior State
Prosecutor concluded that there is a prosecutable case.
[131] He contended that he had no intention to injure the Plaintiff, he does not know
the plaintiff and denies that his actions to prosecute was not reasonable, and he
found the submission defamatory to the National Director of Public Prosecution and
Minister of Police.
[132] Twala’s evidence was consistent throughout the case. He testified that no
Constitutional right was infringed because bail was denied, the plaintiff, like any other
person was facing the wheels of justice.
[133] It is important to note that the second bail application was abandoned with no
reason on the appearance sheet. Twala denied that p laintiff suffered damage, just
because he went through a lot and endured a lot. The State Prosecutor did not order
the detention, there is a process, and the Court ultimately decide, and the police
assist with the information, State prosecutor is an officer of the Court but not the
Court.
[134] In re -examination the State advocate put it to Twala that the assessment
report of the Kidz Clinic is necessary.
[135] He testified yes and explained further that there are several institutions used
for the report, Teddy bear Clinic, some Non- Governmental Organization and Kidz
Clinic. The child will be referred to anyone depending on the trauma of the child. For
the completion of this report the State prosecutor relies solely to the specific
turnaround time of the institution.
[136] This report is only relevant for trial purposes, and that date was 7 March 2018
which was confirmed.
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[137] The last question posed was if a State Prosecutor investigates the granting or
denial of bail and the clear answer was no, it is not his duty, it is between the state
and the plaintiff because bail is this instance is not automatic.
[138] Twala, consistently testified that the turnaround time for this matter was
reasonable. This was the end of the evidence by the first and second Defendants.
Arguments and findings of the Court
Unlawful detention - Claim A
[139] The Arguments by both the plaintiff and defendant s were heard on 8
November 2024.
[140] The argument advanced by the plaintiff is that N[...] was unlawfully detained
because he did not commit any offence.
[141] The second argument was that N[...] was unlawfully detained because his bail
application was opposed and that led to him being inc arcerated for the full period
before the finalisation of the trial.
[142] N[...] accepted that he was lawfully arrested on a Schedule 6 Offence and that
it is this very fact that led to his detention.
[143] By default, because the unlawful arrest was abandoned N[...] accepted that
he was lawfully arrested for a Schedule 6 Offence. Then the onus is on him to show
in terms of Section 60 of the Criminal Procedure Act that there were extraordinary
circumstances present in order to be granted bail. There was no evidence in front of
me that I can find that the first and second defendant kept any evidence away from
the Court, and if there was any other reason why the first bail application failed.
[144] There were two bail applications mentioned, the first bail application failed
after seven days, and the second bail application was never brought and abandoned
on 11 December 2017.
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[145] The plaintiff’s mother was not called as a witness on his behalf or the private
attorney who represented him at the time. Both these two people could have helped
the plaintiff in his claim to explain to the Court what happened in the first bail
application especially because N[...] on more than one occasion during testimony
clearly said his mother attended the bail application with his own private lawyer. The
legal representative cross -examined TM on the J88, but no medical expert was
called on behalf of the plaintiff to proof the submissions made in the particulars of
claim or in evidence.
[146] There was only the oral evidence of the plaintiff and the docket that was
discovered, presented to Court.
[147] The first and second defendant argued the following in terms of the result of
the unlawful arrest claim that was abandoned.
[148] The Plaintiff bore the overall onus to proof and should have compelled the
production of the bail application if he was not able to produce the transcription to
challenge the evidence of the defendants.
[149] When the legal principles are to be applied the question to be answered is
who bears the onus of proof.
[150] This can be found in the case of Pillay v Kristine and A nother 1949 AD 946 at
941-2. The three rules are:
“(a) If a person claims something from another in a court of law, then he
has to satisfy the court that he is entitled to it;
(b) …………………………………………………..
(c) He who asserts, proves and not he who denies, since a denial of a fact
cannot naturally be proved provided that it is a fact that is denied and that the
denial is absolute.” This is a general legal principle generally applicable to
matters serving before a court of law.”
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[151] The first bail application was mechanically recorded according to the
appearance sheet. The plaintiff had the onus to proof that the first and second
defendant did not adhere to the rules and therefore the bail hearing was unlawful
and that followed that the detention became unlawful. This crucial part of evidence
was not placed in front of me a nd was fatal in the plaintiff’s case of unlawful
detention.
[152] At least the best evidence available should have been placed in front of the
Court.
[153] A second bail application, after a year in detention, was abandoned. No
evidence was lead that this was in any way the fault of the first and second
defendant. The plaintiff was the author of his own abandonment and the claim for
unlawful detention must fail.
[154] I am of the opinion, based on the evidence by the plaintiff that he has made
no case out that he was unlawfully detained.
Malicious prosecution – Claim B
[155] It is very much in dispute that defendant acted without reasonable and
probable cause and with malice.
[156] The full legal requirements for malicious prosecution are as follows:
156.1 The first Defendant set the law in motion, instituted proceedings.
156.2 No reasonable and justifiable probable cause
156.3 Sole intention to defame the Plaintiff, malice.
156.4 Was found not guilty.
[157] The two easy requirements are number one, t hat law was set in motion, and
number four, that the plaintiff was found not guilty. Number three having regard to
reasonable and justifiable cause requirements the following flows from the evidence.
[158] Was the prosecution reasonable and justifiable:
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158.1 N[...] ‘s evidence needs to be assessed. His evidence was simple to
understand.
158.2 Because N[...] abandoned unlawful arrest he accepted that the charge
was a schedule 6 offence. This follows then that it was accepted by N[...] that
there were reasonable grounds to arrest him.
158.3 Because N[...], chose, which is his right, not to give a warning
statement if follows that first and second Defendant had no version to
consider other than child’s statement at any stage during the proceedings.
[159] Twala testified that he consents that the law was set in motion by the first
defendant. Twala explained what he deemed to be a prima facie case, and that two
Prosecutors before him agreed that there is a prosecutable case. Suspicion arises at
or near the starting point of an investigation of which prima facie proof is the end.
[160] The plaintiff’s legal representative argued that the test should not be prima
facie but in reality, it has to be only reasonable and probable.
[161] It was clear to me that the plaintiff then accepted that there were reasonable
grounds to arrest him, The SCA in Biyela v Minister of Police (1017/2020) [2022]
ZASCA 36; 2023 (1) SACR 235 (SCA) (1 April 2022) said “the standard of
reasonable suspicion is very low.” It must be more that a hunch; it should not be an
unparticularised suspicion but must be based on specific and articulated facts or
information.
[162] The mere fact that plaintiff was found not guilty, and discharge does not proof
maliciousness, mala fide or unreasonableness.
[163] I find that the plaintiff has failed to discharge a duty rested on him to prove
that the defendant at the relevant time did not have such information, as would lead
a reasonable person to conclude, that the plaintiff had probably been guilty of the
offence.
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[164] If the plaintiff failed to prove his case against the defendant who else should
have. It is the plaintiff who must face the consequences of not having enough
evidence to hold the defendant liable.
[165] Twala testified that he did not have any reason to act maliciously against the
plaintiff, he did not know him at the time, never met him when he took over the case
and proceeded with the prosecution.
[166] He was guided purely by the objective facts in the docket when he took the
decision, especially the J88 form.
[167] This was the objective requirement that satisfied the honest belief, based on
reasonable grounds that the institution of proceedings is justified.
[168] Therefore, the subjective belief must also be reasonable, as this coincide with
Twala, testifying that with the contents of the docket he believed that there was a
prosecutable case, and that is what he did.
[169] On the question if the prosecution was malicious mala fide the following is
important to me:
169.1 Malice in this context talks to the mental state of Twala as the
decision maker.
169.2 This speaks to one, where animus iniuriandi is established the
intention to injure has been shown to exist and secondly
consciousness of the wrongfulness of the decision so made.
[170] Both the factors must exist.
[171] In Moaki v Reckitt & Colman 1975 ISA481A at 492 it was held that it is for the
plaintiff to allege and prove that the defendant had necessary intention to cause him
injury, either in the form of dolus directus or dolus eventualis.
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[172] Plaintiff merely used words to say that he was failed by both his legal
representatives and the defendant.
[173] This is not support for malice and not to fully address it is also fatal to claim B.
[174] I refer to Minister for Justice and Constitutional Development v Moleko SCA
131/07 [2008] ZASCA 43 (31 March 2008). In this judgment in paragraph 11 the
SCA mentioned the prosecution occurred at the instance of the DPP and that the
role of the police was merely to gather relevant information.
174.1 In paragraph 28 it is important to note that the SCA mention when they
looked at malice, that the prosecutor did not know, and did not know of,
never had any dealings with him, the plaintiff, they also mention that
animus iniuriandi must be proven, that its not only intention to injure but
also the consciousness of wrongfulness of the prosecution.
[175] Absolutely no evidence was led to this effect.
[176] Lastly the SCA in the case of NDPP and Mdhlovu case 194/2023 ZASCA 85
of 3 June 2023.
[177] The main question to be answered in par 19 of the appeal is, was the onus of
proof discharged, proving the lack of reasonable and probable cause to prosecute
and that prosecution was instituted animo iniuriandi, explained previously.
[178] The SCA in Mdhlovu specifically referred, on page 8 paragraph 20 of the
judgement, to the old case of Prinsloo and Another v Newman 1975(1) SA 481 (A)
where the Appeal Court found that reasonable and probable cause can be explained
as follows:
“In Prinsloo and Another v Newman, this Court discussed the concept of
reasonable and probable cause for prosecution in the context of malicious
prosecution. The Court held that the test for reasonable and probable cause is
an objective one. It is not based on the subjective beliefs or motives of the
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prosecutor. Reasonable and probable cause exists if a reasonable person
would have concluded that the accused was probably guilty on the facts
available to the prosecutor at the time.”
[179] They take it further and conclude that a prosecutor need not have evidence
establishing a prima facie case or proof beyond a reasonable doubt when deciding to
initiate a prosecution. Suspicion of guilt on reasonable grounds suffices.
[180] I find that based on the evidence of the docket and the two witnesses called,
the suspicion of guilt was there and the first and second defendant acted upon this
supported evidence with reasonable ground.
[181] I accepted the evidence of Twala wholly as credible.
[182] The not guilty finding does not negate in this instance the earlier decision to
prosecute.
[183] I find that any possible i ntent of malicious motive was reduced because at
least three State Prosecutors assessed the docket and decided to prosecute
objectively. I find that this is in compatible with a consciousness of wrongfulness,
recklessness in the current case.
[184] On page 14 paragraph 38 in Mdhlovu it is said that Prosecutors must be free
to pursue cases they believe have merit without undue fear of adverse
consequences, provided they act rationally, honestly and without improper motives.
[185] For these reasons the plaintiff did not discharge the onus of proving the
essential elements of his malicious prosecution claim.
[186] To be successful all the requirements must be cumulatively in existence.
Having found that not all the requirements of the claim has been satisfied, I
accordingly find that the plaintiff cannot succeed.
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[187] In my view, the prosecution, on all the available evidence taken all the facts
into consideration, the criminal charges were not only reasonable but also justified.
[188] Therefore, both claims are dismissed with costs.
VAN DE VENTER, C
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Dates of Hearing: 22, 23 and 24 October 2024
Date of Submissions: 08 November 2024
Date of Judgment: 06 December 2024
Appearances:
For the Plaintiff: Adv. B.B. Ntsimane
Instructed by: Masina Attorneys
For the Defendants: Adv. T. Monene
Instructed by: Office of the State Attorney