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[2024] ZAECMHC 89
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Sodlala and Another v Minister of Police and Others (2729/2019) [2024] ZAECMHC 89; 2025 (2) SACR 76 (ECM) (14 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
[REPORTABLE]
Case
no. 2729/2019
Heard
on: 14 October 2024
Date
delivered: 14 November 2024
In
the matter between:
ZUKO
SODLALA
First Plaintiff
ANELE
MTHETHO
Second plaintiff
And
MINISTER
OF POLICE
First Respondent
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Second Respondent
THEMBINKOSI
MANGCIPHU
Third Respondent
JUDGMENT
MAJIKI
ADJP:
[1]
The two plaintiffs Messrs Zuko Sodladla (Zuko) and Anele Mthetho
(Anele) instituted
action proceedings against the defendants for
damages claim. The claims arise from their alleged arrest,
detention and malicious
prosecution. The first to the third
defendants are Minister of Police (minister), National Director of
Public Prosecutions
(NDPP) and Mr Thembinkosi Mangciphu(the
complainant). The minister and NDPP are sued based on vicarious
liability. This matter
raises the issue of whether the arresting
officer and prosecutors should have done more before arresting and
prosecuting Zuko and
Anele. Only the minister and NDPP defended
the action.
[2]
At the end of the plaintiffs’ case an application for
absolution was unsuccessfully
made on behalf of NDPP. The
reasons for that outcome will be apparent in the judgment.
[3]
Most of the facts in this matter are common cause. On 26 October 2017
at Palmietfontein
police station a complaint was registered following
housebreaking at the house of the complainant on 24 October 2017.
He
deposed to a statement and the police went to the scene.
[4]
Among others, the complainant informed the police that at the
business where housebreaking
took place, he had CCTV cameras.
He viewed the footage and identified the culprits as Zuko and
Anele. He knew
them well. This was later confirmed by
both Zuko and Anele during their testimony. They said he was their
teacher and they
frequently visited his business. Additional
statements were minuted from the complainant and his witness.
[5]
The arresting officer asked the complainant to show him the footage.
After viewing
the footage, the said officer was not comfortable with
the quality of the images. The people depicted therein
according to
him were far. He requisitioned his colleague from
Local Criminal Record Centre (LCRC). The said LCRC officer uplifted
the
fingerprints from the scene. He did form the suspicion that
Zuko and Anele committed the housebreaking. However, he
sent
the video to experts in Pretoria for it to be cleared so that the
quality of the visuals could improve. He decided to
wait for
that process before he could act on his suspicion. The disc
with the footage was sent on 22 November 2017.
Even when
his superior endorsed that he should effect the arrest, he decided
against it.
[6]
On 13 December 2017 the prosecutors made an endorsement on the docket
with the following
instructions:
-
get the CCTV footage;
-
trace and arrest Anele and
-
finalise the case against Anele and use him as the state witness
against
the other.
The complainant was also
putting pressure about lack of progress in the matter, saying he had
informed the police who the suspects
were.
[7]
With their consent, the police took the fingerprints of Zuko and
Anele. Upon
seeking advice from the prosecutor, the prosecutor
requested the docket for decision and that the complainant be
brought. The footage
was received. Before the fingerprints
results came to hand, he took the complaint together with the
footage, without opening
or watching it, to the prosecutor. The
prosecutor watched it with the complainant and his brother who both
positively identified
the culprits from a clear footage. The
prosecutor then decided to prosecute them. The arresting officer
never watched the footage.
[8]
Thereafter, Zuko was arrested on 4 June 2018, Anele presented himself
the next day
after police left a message for him. On 20 June 2018
they were released on bail. On 11 March 2019 the matter was in court
for trial.
Upon the prosecutor seeing Zuko and Anele, he realised
they were not the people on the footage. The complainant could not
explain
that discrepancy, the charges were therefore withdrawn.
[9]
Both Zuko and Anele testified. There was nothing significantly
different from what
they said and the summary above. They testified
first, as the
onus
bearing parties in the case for malicious
prosecution. Similarly, the arresting officer and the prosecutor
testified. Their specific
evidence that raises legal questions will
be referred to in the process of evaluation.
[10]
The pleaded case against police is ‘
that the arrest and
subsequent detention was malicious and unlawful alternatively
wrongful in that the police did not show the footage
to the
plaintiffs, did not watch the footage to verify whether indeed it has
[sic]
the plaintiffs in the video footage’
.
There was not [sic]
proper investigation by members of South African Police services to
ascertain whether there were reasonable
grounds to believe that the
plaintiffs were involved in the commission of the offence as alleged
by the third defendant. More particularly,
there was a video footage
and the police took fingerprints of plaintiffs a week before the
plaintiffs were arrested and detained…’
[11]
The pleaded case against the prosecutor is that ‘
the
prosecutors kept the matter on the roll from 5 June 2018 to 11 March
2019 even though it was said there was a footage of commission
of the
offence but did not watch it.’
[12]
The issue to be determined, against the minister is whether the
arresting officer had a reasonable
suspicion that Zuko and Anele
committed the offence and he exercised his discretion to arrest
reasonably. This arises in the light
of the fact that the results of
the fingerprints were still outstanding. Further, although the
arresting officer knew the two arrested
persons, he did not view the
footage himself. As against the NDPP, the issue is whether the
plaintiffs proved all the requirements
for malicious prosecution.
[13] In the
particulars of claim, it is alleged that when the prosecutor
decided to proceed with the case he had no
probable cause, the
prosecution ended, the decision to proceed was unlawful and
malicious; all the defendants had the intention
to injure the
plaintiffs.
APPLICATION FOR
ABSOLUTION FROM THE INSTANCE
[14]
At the end of the plaintiffs’ case NDPP submitted that there
was no evidence upon which
the court applying its mind reasonably
could/may find for the plaintiffs.
[15]
In
Minister of Justice and
Constitutional Development and Others
v
Moleko
2009
(2) SACR 585
(SCA) at paragraph 17, the court after analysing the
role of the NDPP on the decision by NDPP to prosecute held that the
decision
to prosecute satisfied the requirements of setting the law
in motion. At paragraph 57, with regard to the requirement of
reasonable
and probable course the court stated―
‘…
It follows that a
defendant will not be liable if he or she held a genuine belief
founded on reasonable grounds in the plaintiff’s
guilt. Where
reasonable and probable cause for an arrest or prosecution exists the
conduct of the defendant instigating it
is not wrongful.
…’
Regarding
animus
injuriandi
at paragraph 63, as quoted in full below, the court
said that requirement does not only include intention to injure but
also the
consciousness of wrongfulness.
[16]
The evidence that was placed before court at the end of the
plaintiffs’ case had revealed
that on 23 April 2018, the
prosecutor endorsed that he had watched the footage with the
complainant, it was clear. The complainant
identified the suspects.
He ordered the investigating officer to charge the suspects with
housebreaking and theft and detain them.
Subsequently, when they were
brought to court, he could see they were not the people on the video,
the charges were then withdrawn.
[17]
Considering that it only took the prosecutor seeing the suspects to
conclude that they were not
the persons in the footage. Further,
awaiting for fingerprints results would have also had the effect of
deciding against their
prosecution. There was a possibility that such
evidence could show that the prosecutor had no reasonable or probable
cause to prosecute,
and that the prosecutor acted with intention to
injure and with malice. The court was therefore of the view that
there was evidence
upon which it could find for the plaintiff, on the
claim for malicious prosecution.
CASE GAINST THE 1
ST
DEFENDANT.
[18]
Regarding arrest the second defendant pleaded that the plaintiffs
were arrested in terms of section
40(1)(
b
) of the Criminal
Procedure Act 51 of 1977 (the CPA). The
onus
is on the
arresting officer to prove that he entertained a reasonable suspicion
that suspects committed an offence referred to
in schedule 1.
[19]
According to the arresting officer, he had information from the
prosecutor that the complainant
identified the plaintiffs on the
footage, committing the offences. That fortified his suspicion
that he entertained earlier
and had not acted on, when he considered
that the footage was not clear enough.
[20]
During the trial, the arresting officer was pressed about not waiting
for the results of the
fingerprints and not watching the footage
himself, the second time. He responded that he had other
duties, the prosecutor
was still busy in court. However, he had
no reason not to rely on the advice of the prosecutor.
[21]
The arresting officer went on to state that before the prosecutor’s
advice fortified his
suspicion, he did not yield to the instruction
of his own superior to effect arrest, before the return of a clear
video.
He also did not arrest since the information of the
complainant, despite the pressure the complainant put on him.
[22]
The question to be answered then is, for purposes of the arrest,
would the fact that it later
transpired that, the fingerprints
results were negative and what transpired when the prosecutor saw the
plaintiffs, put a hole
in the justification of the arrest.
[23]
What is required from the police in order to justify arrest as
encapsulated in
Duncan v Minister of Law and Order
[1986] ZASCA 24
;
[1986] 2
All SA 241
(A) is: the arrestor must be a peace officer; he must have
entertained a suspicion that the arrestee committed a schedule 1
offence,
and the suspicion must rest on reasonable grounds.
[24]
With regard to reasonable suspicion in a
Mabona and Another v
Minister of Law and
Order and Others
1988 (2) SA 654
(E)
at 658 the court stated:
‘
The
test of whether a suspicion is reasonably entertained within the
meaning of s 40 (1)(
b
)
is objective (
S
v Nel and Another
1980
(4) SA 28
(E) at 33 H). Would a reasonable man in the second
defendant’s position and possessed of the same information have
considered
that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of conspiracy to commit robbery or
possession
of stolen property knowing it to have been stolen? It
seems to me that in evaluating his information a reasonable man would
bear
in mind that the section authorises drastic police action. It
authorises an arrest on the strength of a suspicion and without
the
need to swear out a warrant, i.e. something which otherwise would be
an invasion of private rights and personal liberty.’
[25]
The process and steps taken by the arresting officer are common cause
in this matter. He testified
as to the extent of his resistance to
act against the suspects. The first time they were pointed by
complainant as suspects and
the time his own superior considered it
compelling that he must arrest. He waited for a clear footage.
He only acted after
the decision to prosecute was taken and the
prosecutor had assured him of the identification of the suspects by
two witnesses.
It is common cause that the complainant knew them very
well. It is difficult to comprehend that more was expected of him in
order
to formulate a reasonable suspicion, at least for purposes of
arrest. The results of the fingerprints as asked by Zuko during his
arrest would have been additional evidence at trial. Evidence reveals
that they had not been received upon arrest. The arresting
officer
acted upon what he had at the time.
[26]
Would it have helped to wait for the results of fingerprints; would
it have helped if the arresting
officer, who had seen the
complainants, had watched the video himself. In retrospect, the
answer to all these is in the affirmative.
However, for purposes of
arrest that answer does not imply that, on the facts in the
possession of the arresting officer at that
stage, in circumstances
where the prosecutor said he had watched the footage, which was
clear, his suspicion did not rest on reasonable
grounds or the police
did not investigate properly.
[27]
In
Groves NO v Minister of Police and Another
2024 (1) SACR
286
(CC) at paragraph 52 the court held:
‘
A
warrant of arrest issued by a peace officer is to be distinguished
from a warrantless arrest. The officer making a warrantless
arrest has to comply with the jurisdictional prerequisites set out in
section 40 (1) of the CPA. In other words, one or more
of the
grounds listed in paragraphs (
a
)
to (
q
)
of that subsection must be satisfied. If those prerequisites
are satisfied, discretion whether or not to arrest arises.
The
officer has to collate facts and exercise his discretion on those
facts. The officer must be able to justify exercising
his
discretion on those facts. The facts may include an
investigation of the exculpatory explanation provided by the accused
person.’
[28]
Regarding whether he properly exercised his discretion to arrest,
during the hearing, it was
ascertained that the plaintiffs had been
arrested on a suspicion of having committed a schedule 5 offence. The
arresting officer
in his testimony said he exercised the discretion
to arrest because of the seriousness of the offence and the
prosecutor’s
instructions. He said he could not have
given the plaintiffs a warning under the circumstances. He said he
knew that he could
disregard the prosecutor’s instruction for
the plaintiffs’ arrest, like he did with the one from his
cluster head.
Furthermore, Anele himself said when he was advised
that he was identified in the footage committing housebreaking, he
proffered
no answer but co-operated with the arrest. Even Zuko who
said he did ask about fingerprints and had denied knowledge of the
housebreaking,
he was told that he would be advised about the
results. His denial had to be weighed against the facts the arresting
officer had.
[29]
With regard to further detention after the first appearance, he
said he had indicated, in writing,
in the docket, that he was not
opposing plaintiffs’ release on bail. He admitted that
the fact that he did not oppose
bail was not different from
exercising his discretion in favour of giving a warning to the
plaintiffs.
[30]
This Court does not consider the arresting officer’s agreement
to the above proposition
as having been well made. In the
argument that the arrest and detention were unlawful counsel for the
plaintiffs referred
to
Louw and Another v Minister of Safety and
Security
2006 (2) (C) SACR 178 (T) at 186. Most importantly, the
Constitutional Court confirmed that
Louw
’s judgment was
not correct. In
Minister of Safety and Security v Van
Niekerk
2008 (1) SACR 56
(CC) at paragraph 15 the court cited
with approval what was held in
Charles v Minister of Safety and
Security
2007 (2) SACR 137
(W) at 144 b-d. Therein, it was
stated that the legislator granted a peace officer the right to make
an arrest in the circumstances
set out in section 40 of the CPA.
It created a situation where due compliance with that section by the
peace officer is lawful
and affords him or her protection against an
action for unlawful arrest. It was held further that a court has no
right to impose
further conditions on peace officers. To do so,
would open a pandora box where the courts would be called upon to
inquire
into the reasonableness of the exercise of the discretion to
arrest in a variety of circumstances and peace officers would be
called
upon to make value judgments every time they effect an
arrest. At paragraph 19 the Court quoted standing order (G) 341
issued
under Consolidation Notice 15/199 regarding arrest.
[31]
Paragraph 3 of the standing order provides:
‘
Securing
the attendance of an accused at the trial by other means than
arrest
(1) There
are various methods by which an accused's attendance at trial may be
secured. Although arrest is one
of these methods, it constitutes one
of the most drastic infringements of the rights of an individual and
a member should therefore
regard it as a last resort.
(2) It
is impossible to lay down hard and fast rules regarding the manner in
which the attendance of an accused
at a trial should be secured. Each
case must be dealt with according to its own merits. A member must
always exercise his or her
discretion in a proper manner when
deciding whether a suspect must be arrested or rather be dealt with
as provided for in subpara
(3) below.
(3) A
member, even though authorised by law, should normally refrain from
arresting a person if-
(a) the
attendance of a person may be secured by means of a summons
as
provided for in
s 54
of the
Criminal Procedure Act, 1977
; or
(b)
the member believes on reasonable grounds that a
magistrates' court, on convicting such person of that offence,
will
not impose a fine exceeding the amount determined by the minister
from time to time by notice in the Government Gazette,
(at
present R1500), in which event such member may hand to the accused a
written notice [J 534] as a method of securing his or
her attendance
in the magistrates' court in accordance with
s 56
of the
Criminal
Procedure Act, 1977
.
[32]
In conclusion the Court held that it would not be desirable to
attempt in an abstract way divorced
from the facts of that case, to
articulate a blanket, all-purpose test for constitutionally
acceptable arrests. Guidelines
themselves underline, the
lawfulness of an arrest will be closely connected to the facts.
In this Court’s view the
exercise of the discretion to arrest,
on the facts of this case, was justified. The plaintiffs were
taken to court without
any delay. They did not apply for and
were not released on bail until they applied and were released on 20
June 2018.
MALICIOUS PROSECUTION
[33]
Regarding malicious prosecution, the prosecutor who made the decision
to prosecute testified.
He did not know the complainant and the
plaintiffs before his decision to have the latter charged and
detained. In the docket
there were two (2) statements, that of
the complainant and his brother implicating the plaintiffs as having
been seen in a footage,
committing housebreaking. At first, he
and his colleague requested that a clear footage be brought.
When the clear
footage came, they could see the faces of the people
removing items. He was satisfied with their identification.
After
the plaintiffs were charged, he informed the complainant, who
had been complaining about the lack of progress in the matter.
The complainant confirmed that the plaintiffs were the people he
identified.
[34]
On their first appearance he did not notice the two plaintiffs, there
were many cases he was
dealing with. This appearance seems to have
been a routine one, whilst there would still be a need for accused’s
profile
to be received. On 19 June 2018 he received the docket
with their profiles attached, relating to information that they had
neither pending cases nor previous convictions. Further, the
investigating officer had endorsed that he was not objecting to their
release on bail. After he addressed on the issue of bail the
matter was stood down to the following day for their attorney.
On 20 June they were released and the matter was postponed to 11
March 2019. By that day, he knew the plaintiffs very well.
He viewed the video footage again in preparation for trial.
That is when he realised that they had the wrong people.
When
he confronted the complainant, he was not able to explain his earlier
identification. The version of the complainant
kept on changing
until he accepted that the prosecution would fail. The
prosecutor then applied for the withdrawal of the
charges.
[35]
According to the prosecutor there was probable cause to enrol the
matter, on the strength of
the identification on the footage.
He was going to secure and lead the evidence about admissibility of
the footage during
trial. He could not recall if he had the
expert affidavit that accompanies expert evidence in relation to the
footage. He
said he would have secured it or the expert for
purpose of trial, nonetheless. He did not regard that the prosecution
depended
on the results of the fingerprints. There was a
footage and two witnesses who identified the people in the footage.
He denied that he rushed the matter because of malice and that he had
intention to injure the plaintiffs. According to him,
injustice
would have resulted if he had failed to enrol the matter.
[36]
According to Harms
Almer’s Precedents of Pleadings
9
th
ed at page 255,
for a plaintiff to succeed in malicious
prosecution, the plaintiff must allege and prove that:
(1) The defendant set the
law in motion-they instigated or instituted the proceedings;
(2) the defendants acted
without reasonable and probable cause;
(3)
the defendants acted with ‘malice’ (or
animo
injuriandi
) that is, with the intention
to injure the plaintiff (the plaintiff must prove not only intent to
injure but also consciousness
of wrongfulness); and
(4) the prosecution
failed.
[37]
The plaintiffs did not particularly allege that the NDPP set the law
in motion against the plaintiffs,
an allegation in those terms is
only in respect of the third respondent. The allegation against the
NDPP is framed as ‘
when the prosecutor decided to proceed
with case against the plaintiff, he had no probable cause for doing
so’
. This can be vaguely read as a cross breed of elements
1 and 2 above, especially in the light of what was said in
Moleko
,
supra
at paragraphs 16 and 17. However, even if this Court
were to be benevolent to the plaintiffs in this regard, the
plaintiffs’
action against the NDPP would not succeed, they
would still have an uphill in proving the requirement of absence of
reasonable
and probable cause and that of malice. All the
elements require to be proved.
[38]
The prosecutor’s evidence shows that NDPP was very cautious
when the matter was first received.
The prosecutors asked for a
clear footage. It was only after receipt of the same and clear
identification of the people in
the footage that a decision to enrol
the matter was taken.
[39]
In
Reylant Trading Pty Ltd v Shongwe and another
[2007] 1 All
SA 375
(SCA) at paragraph 14 the court quoted
Beckenstrater v
Rottcher and Theunissen
1955 (1) SA 129
(A) at 136 A-B with
approval that:
‘
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 having such information, the defendant is shown not to have
believed in the plaintiff’s guilt, a subjective element
comes
into play and disapproves the existence, for the defendant, of
reasonable and probable cause.’
[40]
With regard to malice at paragraphs 63 to 64 in
Moleko
,
supra
,
the court stated:
‘
Animus
injuriandi
includes
not only the intention to injure, but also consciousness of
wrongfulness:
‘
In this
regard
animus
injuriandi
(intention)
means that the defendant directed his will to prosecuting the
plaintiff (and thus infringing his personality),
in the awareness
that reasonable grounds for the prosecution were (possibly) absent,
in other words, that his conduct was (possibly)
wrongful
(consciousness of wrongfulness). It follows from this that the
defendant will go free where reasonable grounds for the
prosecution
were lacking, but the defendant honestly believed that the plaintiff
was guilty. In such a case the second element
of
dolus
,
namely of consciousness of wrongfulness, and therefore
animus
injuriandi
,
will be lacking. His mistake therefore excludes the existence
of
animus
injuriandi
.’
The defendant must
thus not only have been aware of what he or she was doing in
instituting or initiating the prosecution, but must
at least have
foreseen the possibility that he or she was acting wrongfully, but
nevertheless continued to act, reckless as to
the consequences of his
or her conduct (
dolus
eventualis
). Negligence
on the part of the defendant (or, I would say, even gross negligence)
will not suffice.’ (footnotes omitted).
[41]
In the present case, this Court is of the view that plaintiffs failed
to prove that the NDPP
acted without reasonable and probable cause
and with malice.
CASE AGAINST THE THIRD
RESPONDENT
[42]
The claim against the complainant is pleaded as setting the law in
motion against the plaintiff
by laying false charges without
reasonable or probable cause. Further, all the defendants had
the intention to injure the
plaintiffs. These allegations do
not present a complete cause of action in relation to either of the
plaintiffs’ claims.
[43]
In order to succeed against the third respondent, in a claim for
malicious prosecution, the plaintiffs
had to prove that he colluded
with relevant officials in his prosecution. That could not be
the case as the claim against
the NDPP has already failed.
[44]
With regard to costs, the
Biowatch
principle ought to apply in
this matter. The plaintiffs’ defended suit is against organs of
state. The plaintiffs were asserting
their right to liberty, in the
main. That they have lost, they should enjoy the shield of not having
to pay costs to State.
In the result,
1. The plaintiffs’
claim is dismissed with no order as to costs.
B
MAJIKI
ACTING
DEPUTY JUDGE PRESIDENT
OF
THE HIGH COURT, MTHATHA
Appearances:
Plaintiffs
: Mr Mzileni
Instructed
by
: Messrs
Andile Mlonzana Attorneys
12 Reid Street
Westdene
BLOEMFONTEIN
C/O Messrs Nosindwa
Attorneys Inc.
No. 23 Delville Road
MTHATHA
Counsel
for the defendants:
Mr Sintwa for first Defendant
Mr Madubela for second
Defendant
Instructed
by
: Office of
the State Attorney
Broadcast House
No. 94 Sission Street
Fortgale
MTHATHA
Ref. 971/19-A8N)