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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
(2)
(3) REPORTABLE:~ /NO
OF INTEREST TO THE JUDGES: ¥ES-/ NO
REVISED.
In the matter between:
LESIBA SIMON MOKHONOANA
And
MINISTER OF POLICE
LIMPOPO PROVINCIAL COMMISSIONER OF POLICE
NATIONAL DIRECTOR OF PUBLIC PROSECUTION
INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE CASE NO:5505/2019
PLAINTIFF
15T DEFENDANT
2ND DEFENDANT
3RD DEFENDANT
4TH DEFENDANT
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JUDGMENT
MPHAHLELE AJ:
A. INTRODUCTION
[1] The court is tasked with answering the question whether the action taken by
the defendants amounted to malicious prosecution against the plaintiff. The
plaintiff instituted the action for malicious prosecution against the first, second,
third and fourth defendants. The matter proceeded on merits only by agreement
between the parties, in terms of Rule 33(4) of the Uniform Rules of Court.
[2] The plaintiff Mr. Lesiba Simon Mokhonoana instituted action for damages
against the defendants which is based on alleged malicious prosecution by the
defendants who acted within the scope of their employment. It must be noted
that Mr. Lesiba Simon Mokhonoana is a former Police Officer stationed within
the same district.
B.BACKGROUND
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[3] The facts which led to the prosecution was as a result proceedings which
transpired in line with the Criminal Procedure Act 51 of 1977(CPA)were the
plaintiff was charged with murder of Collen Ramashala who was found
deceased in his bed at his home on the 08th September 2014.
[4] On the 01st December 2016, the prosecution made a decision to prosecute the
plaintiff and 2 others on a charge of murder, where the plaintiff had pleaded not
guilty to the charge. On the 25th February 2019, the plaintiff was discharged in
terms of Section 17 4 of the Criminal Procedure Act 51 of 1977. The proceedings
in the Criminal court are common between the parties.
C. MERITS
[5] The plaintiff submitted that the prosecution was malicious in that:
5.1. The police, including the complainant, had no probable cause in setting
in motion the plaintiff's prosecution and were actuated by malice/or acted in
the context of do/us eventualis;
5.2. The prosecutor including the Police and/or complaints who set the law in
motion against the plaintiff, acted without reasonable and probable cause,
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acted animus niuriandi because the prosecution terminated in favour of the
plaintiff.
5.3. The police and or/prosecutors unreasonably neglected, failed and/or
refused to apply their minds to the criminal case levelled against the plaintiff.
5.4. The Police had in their investigations misled the prosecutions and/or
neglected or failed to disclose to the prosecutors that the evidence was not
material enough against the plaintiff because if disclosed it could have abated
prosecution of the plaintiff.
5.5. The employees and or agents of the third defendant had no probable and
or reasonable cause for proceeding with the prosecution, nor did the third
defendant and or his employees have any reasonable belief and or evidence
in truth of the information at its disposal.
5.6. The criminal prosecutions of the plaintiff endured at least two years and
at all material times the plaintiff suffered serious emotional stress and trauma
due to an anticipation of possible lengthy imprisonment if convicted.
5. 7. The plaintiff was at all material times a long serving member of the South
African Police Service and held a particular rank within Police Force.
5.8. The plaintiff was all times when appearing in court, the plaintiff appeared
in full view of members of the public of the community within which the plaintiff
worked as a Police Officer.
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5.9. That the plaintiff has acquired himself a good reputation and name within
the community and or the society that he serves as a Police Officer. His arrest
and or criminal prosecution levelled against him tarnished his reputation.
D. EVIDENCE
[6] The court heard the evidence of the plaintiff Mr. Simon Lesiba Mokhonoana, who
testified that:
6.1. He was called by Mma Mabena, who told him that there were certain
people involved in a fight, He was called by virtue of him being a Police Officer.
He was met by his nephew Mpho Mokhonoana who had been injured by certain
people while at the tavern.
6.2. He stated that he went to investigate why his nephew was injured, upon
his arrival the deceased and another started to run and his testimony is that he
did not chase them.
6.3. He further stated that he took his nephew to the deceased home where
he was advised that he take his nephew to the hospital. He disputed that upon
being called to the tavern, he had any encounter with the deceased or anyone
at the tavern, he further disputed assaulting or running the deceased down with
his motor vehicle.
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[7] The defence called the 2 witnesses for the defendants, the first witness was Lesiba
Comfort Molawa and Mosima Jane Mahloma.
7 .1. The first witness Lesiba Comfort Molawa testified that He had relied on
the statements of eye witnesses' statements of Daniel Mahlatse Movalo and
Mosima Jane Mahloma who stated that they saw the Plaintiff assaulting the
deceased person by kicking him on the ribs.
7.2. That as a prosecutor he could not cross-examine the affidavits and the
only way to test the evidence was to bring the accused person in the criminal
court, who is the plaintiff in this action to court. By proceeding with the criminal
charge, the intention was not to injure the plaintiff and had not acted in bad
faith.
7.3. According to him the criminal process was not successful due to factors
like, unavailability of witnesses whom one was one Mr. Muvalo who could not
make it to court due to a terminal illness. The prosecutor further led evidence
that at the time he believed that the plaintiff had a case to answer and not
putting the matter on the roll was going to be a dereliction of his duties.
7.4. The second witness Mosima Jane Mohloma testified that she saw the
plaintiff assaulting the deceased, this testimony was interrogated in court.
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E. ANALYSIS OF EVIDENCE
[8] The plaintiff submitted that prosecution failed in the criminal court where the
learned magistrate discharged and acquitted the accused, the plaintiff in this
matter in terms of Section 17 4 of the criminal procedure Act. While the defence
submitted that the state acted on eye witness affidavits which led to prosecution.
The acquittal of the plaintiff in the criminal court does not mean that the duty to this
court is waived as the plaintiff still had the duty to prove the malicious prosecution
and malice on balance of probabilities.
[9] I need to state that both plaintiff and defendants' evidence which was testified as
if this court is the criminal court and majority of the time plaintiff failed to adduce
the necessary evidence in this court. Majority of the evidence in chief and cross­
examination focused the plaintiff referred to incidents of the particular day of the
8Th September 2014, where the plaintiff disputed to assaulting the deceased and
to running over the deceased with a car. This approach did not assist the plaintiff's
case as the witness kept on focusing on whether the plaintiff assaulted and later
run the deceased with the car.
[10] Looking at the evidence presented the court is tasked with the question whether
the prosecution of the plaintiff was without probable cause and
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malicious.According to the Potchefstroom Law journal (2013)1 "Jn order to succeed
in an action for malicious prosecution , the plaintiff must prove all four requirements ;
namely, that the prosecution was instigated by the defendant ; it was concluded in
favour of the plaintiff; there was no reasonable and probable cause for the
prosecution ; and that the prosecution was actuated by malice".
[11] '~ combination of both the subjective and objective tests means that the
defendant must have subjectively had an honest belief in the guilt of the plaintiff
and such belief must also have been objectively reasonable ".
[12] According to the evidence which was presented in court by both the plaintiff and
the defendants that the first two elements are common cause, that the prosecution
was instigated against the plaintiff, and that the prosecution was instigated by the
defendant however the third and fourth elements became difficult to prove by the
defendant.
[13] The defendants submitted that the prosecutor acted on the affidavits taken
from the witnesses who deposed to wrong action taken by the plaintiff on the day,
and had to test the evidence. There was a genuine believe that the accused at the
time being the plaintiff was at the scene of a crime when Mr. Collen Ramashala
ultimately died. It is not the responsibility of this court to test the evidence of the
eye witnesses who made statements made, but the court has to examine whether
1 (C.Okpaluba, 2013)
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the plaintiff adduced evidence that the defendants acted without reasonable and
probable cause and whether there existed malice on the part of defendants when
instituting prosecution.
[14] Ledwaba v Minister of Justice and Constitutional Development and Correctional
Service and Others.2The court in Beckentrader cited in the Ledwaba Case held a
view that: 'There would, thus, be reasonable and probable cause for the
prosecution where a defendant is of the honest belief that the facts, available at
the time of taking the decision to prosecute the plaintiff, constituted an offence
which would lead a reasonable person to conclude that the person against whom
charges are brought, was probably guilty of such offence. This question must not
be confused with whether there is sufficient evidence upon which the accused may
be convicted".
[15] The absence of reasonable and probable cause' was explained
in Beckenstrater v Rottcher and Theunissen as cited in Relyant case 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
2 Ledwaba v Minister of Justice and Constitutional Development and Correctional Service and
Others (947/2022) [2024] ZASCA 17 (16 February 2024)
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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".
[16] The learned Justice Malan AJA in the case of Relyant Trading Pty Ltd v
Shongwe3 stated that "such a defendant will not be liable if he/she held a
genuine belief in the plaintiff's guilt founded on reasonable grounds. The
requirement of reasonable and probable cause is a sensible one, for it is of
importance to the community that persons who have reasonable and probable
cause for a prosecution should not be deterred from setting the criminal law in
motion against those whom they believe to have committed offences"
[17] On the animus niuriandi the plaintiff submitted that he was a long serving
member of the South African Police Service and has a particular rank within the
Police Force. At all material times when appearing in court the plaintiff appeared
in full view of the members of the public of the community within which plaintiff
worked as a Police Officer. He stated that he later retired. This aspect I find its
ordinary in that, it is the nature of proceedings to be heard in open courts and the
fact that the plaintiff was a Police Officer at the time does not make him to be above
the law.
3 Relyant Trading (Pty)Ltd v Shongwe and Another (9472/05) [2006) ZASCA 162; [2007)1 All SA(SCA)
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[18] Based on the evidence presented in court and the above, I find that the plaintiff
failed to present evidenc~ to support the claim that the defendants acted without
probable cause and with malice.
F. COSTS
[19) It is trite law that costs follow suit and the plaintiff and the defendant did not
make any submissions as to why the court should deviate from the norm.
G. ORDER
[20) I make the following Orders:
i. The plaintiffs claim does not succeed
ii. The plaintiffs claim is dismissed
iii. Costs of suit
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard on
Judgement delivered on
For the Plaintiff
Instructed By
For the Defendant
Instructed By 12
: 25th NOVEMBER 2024
: 23rd APRIL 2025
: ADV.HLAKUPI MPE
ADV.JT MAKHENE
: RAMAESELE MPHAHLELE ATTORNEY
masholabs@gmail.com
: ADV.HOPANE
: OFFICE OF THE STATE ATTORNEY
MChene@justice.gov .za