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2024
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[2024] ZAFSHC 359
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Minister of Police and Another v Mofokeng and Others (A180/2023) [2024] ZAFSHC 359 (14 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable / Not
reportable
Appeal Case no: A180/2023
Court
a quo
case
no: 3953/2019
In
the matter between
THE
MINISTER OF POLICE
FIRST
APPELLANT
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
APPELLANT
And
THIEHO
WILLIAM MOFOKENG
FIRST
RESPONDENT
(Deceased)
JACOB
SAONA LETUKA (
“
LETUKA
”
)
SECOND
RESPONDENT
MAQAESA
OSIAH SEHLAKO (
“
SEHLAKO
”
)
THIRD
RESPONDENT
TLADINYANE
DAVID TLALE (
“
TLALE
”
)
FOURTH
RESPONDENT
Neutral
citation:
Minister of Police and
Others v Thieho William Mofokeng and 3 others
Coram: Loubser, J
Chesiwe J et Nemavhidi AJ
Heard: 18 October 2024
Delivered:
14 November 2024
Summary:
Appellants appeal against order of the court
a
quo
having granted damages to the
respondents against unlawful
detention and
malicious prosecution-No prima facie case against three
respondents-no link between the respondents and the offences
charged
with.
ORDER
1.
The appeal is dismissed with costs.
2.
The appellants shall pay the taxed costs of the respondents on scale
B in accordance
with the tariff of fees determined in Uniform Rules
67A and 69 inclusive of counsel’s fee.
JUDGMENT
Nemavhidi AJ (Loubser
J
et
Chesiwe J concurring)
[1]
This is an appeal by the Minister of Police
(Minister) and the National Director of Prosecutions (NDPP) against
the decision of
the Court
a quo
to award damages for the unlawful detention and malicious prosecution
of the second, third and fourth respondents. The first
respondent was deceased before the trial.
[2]
The three respondents were arrested and
charged with attempted murder, house robbery and possession of stolen
items. The second
respondent (Letuka) was arrested on 12 May 2013.
The third respondent (Sehlako) was arrested on 12 May 2013 while the
fourth respondent
(Tlale) was arrested on 23 May 2013. Each of the
respondents appeared in court within 48 hours after arrest. The
lawfulness of
their arrest was not yet challenged.
[3]
Firstly, the appellants aver that the
respondents in the court
a quo
failed to prove the unlawfulness of the detention and secondly, if
so, whether the amount of damages is consistent with what is
reasonable having regard to the relevant circumstances. Thirdly, the
appellants further allege that because bail was refused by
the court
in circumstances where the accused effectively acquiesced thereto,
the continued detention was accordingly lawful.
[4]
Relating to damages, the appellants state
that in the event that the court finds that the detention was
unlawful, the quantum of
damages is markedly unjust and this Court
should interfere.
[5]
The Court has to consider the following in
awarding damages:
a)
The circumstances under which the
deprivation of liberty took place;
b)
The conduct of the respondents and
c)
The nature and duration of the deprivation.
[6]
Letuka was granted bail by the High Court in January 2017 after
spending three
years and seven months in prison while Sehlako
was granted bail by the High Court in February 2017 after spending
three years and
nine months in prison. Tlale was not granted bail and
remained in prison for a period of four years and one month when he
was acquitted.
[7]
Letuka was awarded R1,3 million and Sehlako and Tlale were awarded an
amount of R1,4
million each. However, the appellants are of the view
that the respondents should rather have been awarded R250 000.00
for
their unlawful detentions and that the court
a quo
should
have
mero motu
raised the issue of prescription.
[8]
In response, the respondents raised the following issues:
Section 17
of the
Prescription Act 68 of 1969
provides:
‘
(1)
A Court shall not of its own take notice of the prescription;
(2)
A party to litigation who invokes prescription, shall do so in the
relevant
document filed of record in the proceeding, provided that a
Court may allow prescription to be raised at any stage of the
proceedings.’
As
such, the appellants should have specifically pleaded prescription in
either their plea or special plea.
[1]
[9]
The only witness to testify on behalf of the second appellant is the
prosecutor of
the court
a quo
, one Rathaba. He informed the
court
a quo
that the respondents are a flight risk as they are
Lesotho citizens. This issue of citizenship of Lesotho contributed to
the wrongful
information presented to the court, whereas only the
fourth respondent was a Lesotho citizen. Rathabas evidence was of no
assistance
to the second appellant as he did not make a good
impression to the court.
[10]
The first appellant did not call any witnesses in answer to the claim
of unlawful detention,
despite having attracted the onus to prove the
lawfulness thereof.
[11]
All three respondents testified about their arrest and detention and
this evidence was not controverted
by the appellants. The court
a
quo
found that there was at no point in time a
prima
facie
case against the respondents. They should never have been prosecuted.
The prosecutor also conceded that he did not have regard
to all or
other statements in the docket.
[2]
[12]
The Court
a quo
correctly found that causality between the
conduct of the police officers and the prosecution and further
detention of the respondents
had been proven. From the onset, there
was no link between the respondents and the alleged offences for
which they were arrested.
Had the prosecutor applied his mind to the
dockets’ contents he would not have commenced with prosecution
let alone continue
with it for years whilst the respondents remained
in custody.
[13]
The Court
a quo’s
reasoning, and exercise of its
discretion on how and for what amount of damages cannot be faulted.
The respondents testified about
the condition of their detentions and
what they were subjected to, and the trauma they had to endure
whereas the appellants did
not provide any cogent reasons for this
court to disturb the findings of the Court
a quo.
Order:
In the result, the
following order is made:
1.
The appeal is dismissed with costs.
2.
The appellants shall pay the taxed costs of the respondent on scale B
in accordance
with the tariff of fees determined in Uniform Rules 67A
and 69 inclusive of counsel’s fee.
M.B.
Nemavhidi AJ
P.J. Loubser J
S.Chesiwe J
Appearances
For
the Appellants:
The
State Attorney
Instructed
by:
Adv
N.A Cassim SC et Adv L.R Bomela
For
the Respondents:
Adv
S Grobler SC et Adv C Zietsman.
Instructed
by:
Jacobs
Fourie
[1]
Mbhiiyozo
v Eskom Holdings SOC Ltd
[2024] ZAECMHC 55 paras 40-46.
[2]
Minister
of Police and Another v Du Plessis
[2013]
ZASCA 119
;
2014 (1) SACR 217
SCA para 32.