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[2025] ZAFSHC 340
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Moeketsi v The National Director of Public Prosecutions (1908/2020) [2025] ZAFSHC 340 (6 November 2025)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Case
no: 1908/2020
In
the matter between
PALI
DANIEL MOEKETSI
PLAINTIFF
And
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANT
Neutral
citation:
Moeketsi v The National Director
of Public Prosecutions
(1908/2020)
[2025] ZAFSHC 340
(06 November
2025)
Coram:
Lekokotla AJ
Heard:
2, 3 and 5 September 2025
Delivered:
06 November 2025
Summary:
Malicious prosecution – requirements for – reasonable
and probable cause –
animus iniuriandi
– effect of
withdrawal of prosecution.
ORDER
The
application is dismissed with costs, including costs consequent upon
employment of counsel, on scale B.
JUDGMENT
Lekokotla
AJ
[1]
The plaintiff has instituted an application for malicious
prosecution.
[2]
This claim arises from an incident where, in the early hours on or
about 2 October
2017 at the Theunissen Caltex garage in Theunissen,
Piet Retief, a number of armed men set explosives and robbed the
Caltex garage
at gunpoint. The plaintiff is one of the accused who
was arrested a few days later and appeared before the Theunissen
Magistrates
Court in 16 October 2017 on a charge of robbery with
aggravating circumstances.
[3]
The plaintiff contends that his prosecution was malicious and caused
him to
suffer damages and, as a result, the defendant should
compensate him for the damages suffered. The defendant disputes the
claim,
contending that there was no malicious prosecution of the
plaintiff and that the plaintiff has failed to prove the requirements
of malicious prosecution. Further, that the plaintiff has suffered no
damages as a result.
[4]
The case proceeded in respect of merits and quantum on 2, 3 and 5
September
2025.
[5]
The plaintiff was the sole witness who tendered evidence in this
case. The defendant
led the evidence of two witnesses, Mr Vuyisile
Didi (Mr Didi) and Mr Raymond Dirk McBetty (Mr McBetty), who were
regional court
prosecutors, at the relevant times. They tendered
evidence on behalf of the defendant.
Malicious
prosecution
[6]
It
is trite that the requirements for malicious prosecution that the
claimant must allege and prove are that: (a) the defendant
set the
law in motion (by instigating or instituting the proceedings); (b)
the defendant acted without reasonable and probable
cause; (c) the
defendant acted with malice or
animo
iniuriandi
;
and (d) the prosecution failed. These are the requirements that the
plaintiff ought to prove in order to succeed with his claim.
This was
confirmed by the Supreme Court of Appeal (SCA) in
Relyant
Trading (Pty) Ltd v Shongwe and Another
(
Relyant
)
[1]
and
Minister
of Justice and Constitutional Development and Others v Moleko
(
Moleko
).
[2]
[7]
It is common cause that the defendant set the law in motion by
instituting proceedings
against the plaintiff on 16 October 2017 when
it decided to prosecute him on the charge of robbery with aggravating
circumstances.
This was established. It was never in dispute. The
plaintiff confirmed this when he recounted that his first appearance
was on
16 October 2017. He had further subsequent appearances, which
will be discussed below.
Reasonable
and probable cause
[8]
One of the contentious requirements is whether the plaintiff has
established
that the institution of prosecution was without
reasonable and probable cause. The plaintiff contends that the
defendant had no
reasonable and probable cause in prosecuting him.
The defendant denies this.
[9]
In
Prinsloo
v Newman
(Prinsloo)
,
[3]
the then Appellate Division defined
reasonable
and probable cause as an honest belief founded on reasonable grounds
that the institution of proceedings is justified.
This test was
confirmed
by
the SCA in
Moleko
.
[4]
[10]
One of the complaints that have been levelled
against the defendant is that, in taking a decision to prosecute the
plaintiff, it
had no reasonable grounds for doing so because it
merely relied on the sole evidence, which was the statement of the
investigating
officer, Mr Olivier. The complaint is that, at the time
of taking the decision to prosecute the plaintiff, the defendant had
no
other evidence at his disposal. Furthermore, that the statement
contains inadmissible hearsay evidence, which was obtained from
an
informer who remains nameless and faceless. Since that informer would
not appear in court to corroborate the information contained
in Mr
Olivier’s affidavit, then this court should reject it as it is
inadmissible.
[11]
The defendant denies this and contends that, in
light of the contents of Mr Olivier’s statement, the
information emanating
the informer contained sufficient evidence upon
which the stand-in prosecutor from Welkom, Mr Didi, formed
an
honest belief founded on reasonable grounds that the institution of
proceedings is justified
. This,
according to the defendant was a reasonable and probable cause to
prosecute the plaintiff.
[12]
The question is whether the defendant had this
honest belief that the institution of proceedings is justified. Also,
whether it
was founded on reasonable grounds.
[13]
The evidence tendered by the plaintiff is that the
prosecution had no basis for prosecuting him because he always
maintained that
he was innocent and that this was later found through
the evidence obtained by his cell phone provider Mobile Telephone
Network
(MTN) that he was not on the scene of the robbery on the date
in question.
[14]
The evidence of Mr Didi is that, when he examined the statement of Mr
Olivier, it contained details
of a robbery and that those details
were not (and would not have been) known to the public. This included
the details of the motor
vehicle that was alleged to have been used
during the robbery (a white Audi A4, partial place MP registration),
the type of firearms
that were used during the robbery (a 9 mm and a
full automatic assault rifle); the number of people that were
involved in the robbery
at the Caltex garage (four armed masked men
and an armed driver); the details of the alleged robbers. The
statement of Mr Olivier
contains the names, the nicknames as well as
the residential addresses of the alleged robbers, including those of
the plaintiff.
[15]
The testimony of Mr Didi went to reveal that the informer had
informed Mr Olivier that the men who
were involved in the armed
robbery at the Caltex garage in Theunissen were known to him or her
and that, at approximately 22h00-23h00,
these men were at his suburb
and they called him (the informer) and when they met he realised that
they had a large assault rifle
and a 9 mm gun, and large sums of cash
in their possession. These men then bragged to the informer how they
blew up a safe at the
Theunissen Caltex garage and thereafter robbed
the garage. Furthermore, the informer had informed Mr Oliver that the
alleged robbers
had gone to his (informer’s) home driving a
white Audi A4 with MP partial plates and that they changed the plates
of the
motor vehicle to the ones bearing the registration BYM[…].
[16]
Mr Olivier’s statement lists the names of the six alleged
robbers, which were communicated to
him by the informer, including
their nicknames. The names included the name of the plaintiff,
including his nickname, Zorro as
well as his residential addresses.
Similar information appears in respect of the other accused,
including their residential addresses.
The plaintiff was arrested at
approximately 00h15 on 13 October 2017 at the address that is
contained in Mr Olivier’s statement.
[17]
When the plaintiff was arrested, Mr Olivier and others searched the
plaintiff’s home when they
arrived as they were in the process
of arresting him. They found green gloves, two cell phones and a
memory stick. They informed
the plaintiff of his rights and
thereafter arrested them. When they searched the homes of the other
suspects, they found more cell
phones, memory sticks etc, even bank
cards some rifles were found.
[18]
Mr McBetty’s testimony was that, if he had had the statement of
Mr Olivier prior to enrolling
the matter, he would have taken the
same decision as one taken by Mr Didi in that he would have enrolled
the matter as Mr Olivier’s
statement was very detailed and gave
a lot of information which would have created the impression that the
plaintiff and his co-accused
were guilty of crime. This is despite
the fact that the information that Mr Olivier received was from an
informer, whose identity
could not be revealed. This is also because
there were two insiders who were working at a garage who were
suspected of having been
linked to the crime in question. There would
have been a possibility of persuading them to co-operate or even to
turn State witnesses.
[19]
According to Mr McBetty, the statement of Mr Olivier is too detailed
for him to have been lying about
what he wrote on it based on the
information that he received from an informer. This statement was
also backed up by a lot of verifiable
facts.
[20]
It goes without saying that the evidence that the defendant relied on
did not have to contain statements
upon statements of individuals to
help the prosecutor form the basis upon reasonable grounds whether
prosecution was justified.
What matters is the quality of available
evidence. Even one piece of evidence, such as the statement of Mr
Olivier, is sufficient
as long as it contained credible information
that was useful for the arrest and in this case, gave direction of
what further evidence
was necessary.
[21]
The plaintiff raised a further complain criticising the statement of
Mr Olivier, which was that since
Mr Olivier relied on the evidence
obtained from an informer, whose name or identity cannot or could not
be divulged because they
are informers. Therefore, since the informer
was also not going to be called to court to testify, then Mr
Olivier’s statement
amounted to inadmissible hearsay evidence.
[22]
The defendant argued that the admissibility of Mr Olivier’s
statement should not be assessed
based on its contents but rather on
the statement itself, whether it is admissible evidence. Advocate
Bomela contended that it
is. No evidence was placed by the plaintiff
on why Mr Olivier’s statement should not be admissible by
itself, except for
the complaint that I have discussed above
regarding the contents of what the informer told Mr Olivier.
[23]
I agree with Advocate Bomela. There was no argument made by Advocate
Mazibuko that the actual statement
of Mr Olivier is not admissible.
Even though, in its contents, it reveals the information received
from the informer, whose identity
cannot be revealed in order to
protect their safety and privacy, that does not make it inadmissible.
This is particularly because
it contained very detailed information
that I have detailed above, which helped the defendant to form the
basis that the plaintiff
is guilty of the offence that he was charged
with.
[24]
In
Relyant
Trading
,
[5]
it was held that
‘
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.’
[25]
Quoting the
decision of the then Appellate division,
Beckenstater
v Rottcher and Theunissen
,
[6]
the
SCA in
Relyant
Trading
,
[7]
went on to state that:
‘
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, even if in so doing they are actuated by indirect
and improper motives.”.’
[26]
This is the test that was set out by the SCA and which is followed by
all the courts in determining
claims of malicious prosecution.
[27]
In
Prinsloo
,
[8]
it was held that what is required is an honest belief based on
reasonable grounds that the institution of the legal proceedings
was
justified.
[28]
From what we have heard from the plaintiff’s testimony is that
the prosecution was based on the
evidence of Mr Olivier, who was
informed by an informer that he heard people bragging about having
committed the crime in similar
circumstances as the present. What
the defendant has to establish is that in light of this evidence it
held an honest belief,
which was grounded on reasonableness regarding
the justification of instituting the legal proceedings.
[29]
In
Relyant
Trading
,
based on the facts of that case, where Mr Shongwe was mistaken for
another customer who had bought goods on credit and never paid
the
balance of the instalments, the SCA held that where the evidence of
Ms Mahlangu is concerned, the inference that she honestly
believed in
Mr Shongwe’s guilt and lacked any intention to injure him was
held to be unavoidable. This view was premised
on her training,
experience with customers, the amount of time that she spent
interviewing Mr Shongwe and the promptness with which
she acted when
she thought she recognised him as the person who defrauded her
employer. The SCA concluded that
any
reasonable person in her position and on the information available to
her
would
have concluded that Mr Shongwe was probably the person who committed
the offence concerned.
[9]
[30]
In
Moleko
,
[10]
the SCA, quoted
Relyant
Trading
,
which had quoted
Beckenstater
v Rottcher and Theunissen
where the following was held:
‘
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.’
[31]
In
Moleko
,
the SCA stated that reasonable and probable cause
involves
both a subjective and an objective element. This means that the
defendant must not only have subjectively had an honest
belief in the
guilt of the plaintiff, but his belief and conduct must have been
objectively reasonable, as would have been exercised
by a person
using ordinary care and prudence.
[11]
Therefore, according to
Moleko
,
in
proving the element of reasonable cause, the prosecutor ought to
harbour a subjective and honest belief that the plaintiff is
guilty
of the offence. This test goes on to require the objective assessment
of the person exercising this power using ordinary
care and prudence.
[32]
In his evidence, Mr Didi explained that after the discussion that he
had with Mr Olivier, who had indicated
that he was still awaiting the
results of the cell phone records to see if they could lead the
plaintiff to the commission of the
crime, he was satisfied that the
matter should be enrolled for the plaintiff’s prosecution.
[33]
Mr Didi explained that there was nothing untoward with enrolling the
case and postponing it for further
investigation. This is because
there is no requirement that the defendant should have in hand all
the evidence required for prosecuting
the accused at the first
hearing. This is also because the hearsay evidence recorded in Mr
Olivier’s statement may have been
corroborated in future. But
also, the charge that the plaintiff was facing was very serious. He
had to consider that too in deciding
on what to do next.
[34]
Mr McBetty confirmed this evidence and stated that declining to
prosecute was not even an option because
it would have been risky as
the defendant did not know who had bombed and robbed the Caltex
garage. If they had not prosecuted
the accused whose details, they
already had from Mr Olivier’s statement, the risk was that the
defendant never would have
found out who the actual perpetrators were
and may never have known if they had simply released the plaintiff
and his co-accused
on such a serious charge.
[35]
Furthermore, the fact that the accused was not represented at the
first appearance suggests that there
was a need to postpone the case
for the accused to obtain representation while the defendant
continued to obtain the cell phone
records.
[36]
In his evidence, Mr McBetty confirmed Mr Didi’s
testimony that he did not have to have every piece of evidence
against the
plaintiff prior to his first appearance, only the
reasonable belief that he was guilty of the offence. He also
testified that there
was nothing untoward about Mr Didi having
enrolled the matter on 16 October 2017, as it related to a very
serious charge that the
plaintiff was facing.
[37]
Mr McBetty explained that what would have kept
the prosecution ongoing would have been the hope that the cell phone
records may
link the plaintiff to the scene of the crime.
Furthermore, the belief that the defendant may have asked further eye
witness to
co-operate and furnish more information which may have
demonstrated that the plaintiff. Was involved in the armed robbery.
Also,
the possibility that the defendant may have turned some of the
accused to State witnesses. He testified that those are all
indications
of reasonable and probable cause on the part of the
defendant.
[38]
In my view, based on the evidence presented as well as the evidence
led by Messers Didi and McBetty,
the prosecutor met this test by
objectively exercising his power in making a decision to prosecute
and further by forming a view
subjectively that the plaintiff was
guilty of the offence.
[39]
The plaintiff failed to
discharge the onus
of proving absence of reasonable and probable
cause.
Animus iniuriandi
[40]
Another element that the plaintiff had to prove as malice or
animo
iniuriandi
[41]
This element is relevant if there is absence of reasonable and
probable cause. As is clear from above,
the defendant had reasonable
and probable cause to believe in the guilt of the plaintiff at the
time of prosecuting the accused
when he had his first appearance at
the Theunissen magistrates court on 16 October 2017. However, for the
sake of completeness,
I address this issue.
[42]
In
Relyant
,
the SCA stated the following in regard to the requirement:
[12]
‘
Although
the expression “malice” is used, it means, in the context
of the action iniuriarum, animus iniuriandi. In Moaki
v Reckitt &
Colman (Africa) Ltd and another Wessels JA said:
“
Where
relief is claimed by this actio the plaintiff must allege and prove
that the defendant intended to injure (either dolus directus
or
indirectus). Save to the extent that it might afford evidence of the
defendant’s true intention or might possibly be taken
into
account in fixing the quantum of damages, the motive of the defendant
is not of any legal relevance.’
[43]
The evidence of malice (
animo iniuriandi)
– when asked
the plaintiff did indicate that he was not aware of the prosecutor
before, did not know him, and still does
not know him and does not
believe that he would specifically have had anything against him.
However, he still maintained that the
prosecution should never have
happened in the first place because as it turned out later, there was
no evidence to link him to
the crime scene because the cell phone
evidence excluded him from or around the scene of the crime.
[44]
The defendant has to rebut the claim of
animus iniuriandi
–
by demonstrating facts that show differently. That is to disprove
that despite seeing a possibility of acting wrongfully,
it still
continued to act recklessly.
[45]
Mr Didi testified that he did not know the plaintiff before 16
October 2017 when he met him at the
Theunissen magistrates court for
his first appearance. He therefore could never have intended
(directly or indirectly) to injure
him in any way. In any event, his
last involvement on that case was on the very same day, on 16 October
2017 when he postponed
the criminal case for seven days, to 23
October 2017 to allow the plaintiff to obtain legal representation
and to allow the defendant
an opportunity to obtain cell phone
records from the plaintiff’s cell phone network provider.
[46]
Mr McBetty testified that with the type of evidence that the
defendant had in the form of Mr Olivier’s
statement, and with
the seriousness of the charge, it is not unusual for prosecutors to
enrol the matter, postpone it for more
evidence. He would have done
precisely that as well since he saw nothing with Mr Olivier’s
statement. All that was missing
were the cell phone records to reveal
whether indeed the plaintiff and his co-accused were at or around the
crime scene on the
date inn question.
[47]
McBetty further testified that they (the defendant) knew that cell
phone records were critical for
him to decide whether or not to
proceed with the plaintiff’s prosecution.
[48]
The plaintiff testified that he appeared numerous times before court
before the charges were withdrawn
on 4 December 2017. It is common
cause that the plaintiff paid bail on 30 October 2017.
[49]
There was no evidence that was led to the effect that there was
malice in the context of
actio iniriarum
, in the form of
animus iniuriarum,
i.e. an intention to injure. When asked
directly in cross examination whether the plaintiff knew of the
prosecutor who instituted
prosecution against him, Mr Didi, the
plaintiff’s testimony was that they did not know each other
prior to the proceedings.
When asked whether there is a motive that
Mr Didi may have harboured against him for subjecting him to
prosecution when according
to the plaintiff this should have never
happened since he was not close to the scene of the crime, he stated
expressly that he
could not point out to any.
[50]
In
Moleko
,
the SCA held that
a
nimus
injuriandi
includes
not only the intention to injure, but
also
consciousness of wrongfulness.
[13]
In explaining this requirement, the SCA held as follows:
‘
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.’
[51]
The SCA, in
Moleko
,
went on to state that t
he
defendant must 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, even gross negligence)
will not suffice.
[14]
[52]
The plaintiff testified that the intention to injure his image on the
defendant’s part is apparent
from the fact that the details of
the crime, including the name of the suspects, including him were
reported in a press release
or statement that circulated in
Theunissen. When asked how such publication tarnished his image when
he did not even live in Theunissen,
he replied that it was read
widely and reached Welkom where he lived.
[53]
When asked how his image was tarnished, the plaintiff answered that
his community started thinking
less of him as they believed that he
was involved in a crime and that this diminished society’s view
of him. When asked how
he could say this and to demonstrate what the
community’s perception was prior to this publication, he could
not give a straight
answer.
[54]
When he was asked what options he had prior to enrolling the matter,
Mr Didi testified that he could
have (a) declined to prosecute the
plaintiff; or (b) he could have postponed the matter and called the
accused to appear in future;
or (c) he could have done what he did in
the present matter, which was to charge the plaintiff and postpone
the matter for a few
days to gather more evidence as Mr Didi did
here; or (d) by raising a query.
[55]
Mr Didi’s evidence was that he could have chosen the same
course which he did, which was to enrol
the matter and postpone it
for a few days to obtain further evidence. The other option was for
him not to have prosecuted the matter
and waited until he had
received the evidence of the cell phone records as was required.
However, he pointed out that this would
never have been the decision
he would have made because the accused were charged with a serious
crime and also that the witness
statement that he mainly relied on
was detailed enough to cause him to believe that there was a
reasonable prospect of a successful
prosecution. This is because it
recorded the information that was relayed to Mr Olivier by an
informer (whose identity he could
not reveal) that he had heard the
accused and other men speaking about their armed robbery of the
Caltex garage.
[56]
Mr McBetty’s evidence was that it would have been extremely
risk if the defendant had declined
to process and thereafter obtained
cell phone records that reveal that the plaintiff was near the scene
of the crime, then they
would have had to arrest them again, charge
them again with the same crime and prosecute them. The risk is that
they may have ran
away in the meantime and the defendant would have
struggled to find them again.
[57]
When Mr McBetty was asked by counsel for the plaintiff why that was
risky since the plaintiff’s
residential address was contained
in Mr Olivier’s statemen and that the defendant would have
known where to get him, his
answer was he may have absconded there
and they could not find him elsewhere. This is the risk that is not
advisable for anyone
to take.
[58]
The plaintiff’s bail was fixed during the course of
October2017. He only paid it on 30 October
2017.
[59]
It is common cause that the letter from MTN exonerating the plaintiff
from the crime when his cell
phone number could not be located around
the scene of the crime, is dated 6 November 2017. None of the defence
witnesses could
explain when it reached the defendant. However, the
time period that passed between that date and 4 December is not
unreasonably
long as it was just over a month. What is also important
to consider is what was happening with the plaintiff throughout that
time.
[60]
Subsequent to 6 November 2017, the plaintiff had two more appearances
before court. The first one was
on 17 November and the last one was
on 4 December 2017 where the charges were withdrawn against the
plaintiff. None of the defendant’s
witness could confirm
whether the cell phone records were already in the possession of the
defendant when the plaintiff appeared
in court on 20 November 2017.
This is because they simply did not know this including when this
document was placed in the court
file.
[61]
Mr McBetty testified that if he had proceeded with the plaintiff’s
prosecution beyond 4 December
2017, having had the results of the
cell phone records, then his conduct would have been malicious as the
defendant would have
has no basis from the plaintiff’s
pr-longed prosecution. This is proof there was no animus iniuriandi
against the plaintiff.
Whether
proceedings have been terminated in the plaintiff’s favour
[62]
It is common cause that, on 4 December 2017, the defendant withdrew
the charge of robbery with aggravating
circumstances against him. It
was the defendant’s second witness, Mr McBetty who gave an
instruction to Advocate Tshifuta,
who was representing the defendant
at the hearing on 4 December 2017 to withdraw the charges against the
plaintiff as he became
aware, though his discussion with Mr Olivier,
on that date of this information.
[63]
Advocate
Mazibuko argued that the prosecuting authority’s power to
withdraw the charges is sourced from
s 6
of the
Criminal Procedure
Act 51 of 1977
. In this regard, he referred to the
National
Director of Public Prosecutions and Others v Freedom under Law
,
[15]
where the SCA held that the decision to withdraw a criminal charge in
terms of
s 6
(a)
can
never be described as ‘provisional’ just because it can
be reinstituted. This would be tantamount to saying that
because a
charge could be withdrawn, the institution of criminal proceedings is
only provisional. The SCA concluded that the withdrawal
of a charge
in terms of
s 6
(a)
is
final. The prosecution can only be recommenced by a different,
original decision to reinstitute the proceedings. Unless and until
it
is revived in this way, the charge remains withdrawn.
[64]
In
Thompson
v Minister of Justice
(
Thompson
),
[16]
it was held that:
‘
In
an action based on malicious prosecution it has been held that no
action will lie until the criminal proceedings have terminated
in
favour of the plaintiff. This is so because one of the essential
requisites of the action is proof of a want of reasonable and
probable cause on the part of the defendant, and while a prosecution
is actually pending its result cannot be allowed to be prejudged
by
the civil action (Lemue v Zwartbooi, supra at p. 407). The action
therefore only arises after the criminal proceedings against
the
plaintiff have terminated in his favour or where the Attorney-General
has declined to prosecute. To my mind the same principles
must apply
to an action based on malicious arrest and detention where a
prosecution ensues on such arrest, as happened in
the present case.
The proceeding from arrest to acquittal must be regarded as
continuous, and no action for personal injury done
to the accused
person will arise until the prosecution has been determined by his
discharge.’ (Bacon v. Nettleton,
1906 T.H. 138
at pp. 142 - 3).
[65]
Advocate Bomela argues that it is still open to the defendant to
reopen the criminal proceedings against
the plaintiff as long as it
obtains sufficient or new evidence. He contends that consequently the
criminal proceedings are still
pending against the plaintiff. He
relies on Thopson in support of this argument.
[66]
Advocate Mazibuko argued that the criminal proceedings against the
plaintiff are not pending since
they were withdrawn as far back as 4
December 2017. Advocate Mazibuko contends that
Thompson
does
not support the proposition made by Advocate Bomela.
[67]
I am inclined to agree with Advocate Mazibuko that the criminal
proceedings are not pending, particularly
since the defendant’s
witnesses could not point any evidence to demonstrate this. In fact,
Mr McBetty testified that there
has not been any steps to reinstate
the case against the plaintiff by the defendant.
[68]
I however disagree with Advocate Mazibuko that the effect of the
withdrawal of the charges is the same
as conclusion of the trial in
favour of the plaintiff. This cannot be. The witnesses of the
defendant, particularly Mr McBetty
explained that, when the regional
prosecutor who was dealing with the matter (Advocate Tshifuta) called
him on 4 December 2017,
after the defendant had received the MTN
records demonstrating that the plaintiff was not at the vicinity of
the scene of the crime,
he would have been with the investigator Mr
Olivier at his office at the time and would have consulted with him
and immediately
made a decision, which he communicated to Advocate
Tshifuta that she must withdraw the charges against the plaintiff,
which she
duly did on that day.
[69]
The withdrawal of the charges against the plaintiff on the basis of
‘geen prima facie saak’
does not prove that the criminal
proceedings were decided in favour of the plaintiff. It simply means
that the case against the
plaintiff could not proceed as soon as the
defendant realised that there is no evidence that links the plaintiff
to the crime scene
and therefore there was no sufficient evidence
which could have sustained the prosecution.
[70]
What also supports this argument is that 7 and half years have passed
since the case was withdrawn
against the plaintiff. During this time,
there has never been an indication or even an inclination to bring
the charges against
the plaintiff based on the facts of this case. In
fact, none of the witnesses of the defendant testified that there is
a likelihood
or even an intention on the part of the defendant to
re-instate the charges against the plaintiff.
[71]
However, in agreeing with Advocate Mazibuko that there is no evidence
to suggest that the proceedings
against the plaintiff are pending, I
disagree with him that the withdrawal of the charges is equivalent to
the failure of prosecution
as one would have in an instance where the
defendant would have had the prosecution of the plaintiff dismissed.
[72]
I am inclined to agree with Advocate Bomela that the only way that
the plaintiff could, in reality,
successfully resist his prosecution
in future would be if he is in a position to raise the defence of
autrefois acquit.
[73]
In
Sayed
and Others v S
,
[17]
the SCA, quoting the old judgment of the then Appellate division in
R
v Manasewitz
,
[18]
the SCA
reiterated
the requirements of this special plea that
‘the
requisites for a plea of
autrefois
acquit
are
that the accused must have been tried previously on the same charge
by a court of competent jurisdiction and acquitted on the
merits’.
It stated that this principle was endorsed by the Constitutional
Court in
S
v Basson.
[19]
[74]
It is common cause that the plaintiff was never acquitted on the
merits of the charge simply because
the defendant terminated his
prosecution on 4 December 2017 when it learnt that the cell phone
records did not link the plaintiff
to the scene of the crime. It
therefore follows that the plaintiff has equally failed to prove that
termination was terminated
in his favour, after having gone through
the trial and having been acquitted on the merits after an entire
court hearing on the
merits. The proceedings against him simply never
reached that stage.
[75]
In light of the above, I conclude that the plaintiff has failed to
prove the requirements of his
malicious prosecution by the
defendant. Therefore, his claim should fail.
Quantum
of damages
[76]
In light of my finding on the merits, I consider this aspect
unnecessary to deal with.
[77]
Consequently, I make the following order:
The application is
dismissed with costs, including costs consequent upon employment of
counsel on scale B.
B
D LEKOKOTLA
ACTING
JUDGE OF THE HIGH COURT
Appearances
For
the plaintiff:
S
M Mazibuko
Instructed
by:
Mokhomo
Attorneys, Bloemfontein
For
the defendant:
L
Bomela
Instructed
by:
Office
of the State Attorney, Bloemfontein.
[1]
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2006] ZASCA 162
;
[2007]
1 All SA 375
(SCA) (
Relyant
).
[2]
Minister
of Justice and Constitutional Development and Others v Moleko
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA);
2009
(2) SACR 585
(SCA) (
Moleko
)
para 8.
[3]
Prinsloo
v Newman
1975 (1) SA 481
(A) (
Prinsloo
).
[4]
Moleko
para
20.
[5]
Relyant
Trading
para
14.
[6]
Beckenstater
v Rottcher and Theunissen
1955
(1) SA 129
(A) at 135D-E.
[7]
Op
cit fn 5
.
[8]
Prinsloo
1975
(1) SA 481 (A).
[9]
Relyant
Trading
para
15.
[10]
Moleko
para
57.
[11]
Ibid
para 20.
[12]
Relyant
Trading
para
5.
[13]
Moleko
para
63.
[14]
Ibid
para 64.
[15]
National
Director of Public Prosecutions and Others v Freedom Under Law
[2014] ZASCA 58; 2014 (4) SA 298 (SCA); 2014 (2) SACR 107 (SCA);
[2014] 4 All SA 147 (SCA) para 34.
[16]
Thompson
v Minister of Justice
1971
(1) SA 371 (E).
[17]
Sayed
and Others v S
[2017]
ZASCA 156; 2018 (1) SACR 185 (SCA).
[18]
R
v Manasewitz
1933
AD 165.
[19]
S v
Basson
[2005] ZACC 10
;
2005 (12) BCLR 1192
(CC);
2007 (3) SA 582
(CC);
2007
(1) SACR 566
(CC) paras 254 and 255.