He ordered the suspects to go out on warning. No bail conditions were given to them. Necessary administration was not done on the
release of suspect because Mr Moleko was very angry. The police and public prosecutor were betrayed by the magistrate to the suspects
and the public.’
[40]
To return to Mr Moleko’s warning statement, Ms Neveling, on her own evidence, also had regard to this statement before making
her decision to prosecute Mr Moleko. As appears from the extracts from her evidence quoted above, she testified that, in this warning
statement, Mr Moleko said that he was aware of the fact that the accused were charged with Schedule 6 offences and that –
'in spite of that he ordered the accused to be released not even on warning. To be released without hearing any evidence’. (Emphasis added.)
[41]
Once again, this evidence is incorrect in two material respects. First, as indicated above, nowhere in his warning statement does
Mr Moleko state that he was on the relevant date aware of the fact that the accused were charged with Schedule 6 offences. Second,
Mr Moleko did not order the accused to be released without a warning. Under cross-examination, it was put to Ms Neveling that Mr Moleko had testified
that he had given the two accused a date upon which they had to return to court. She replied that, as far as she could remember,
this was not the case. However, she later testified, in response to questions posed by Matthee AJ, that Mr Moleko had indeed ‘released
the accused on warning’.
[42]
The handwritten record of the proceedings in the case against the three accused is contained in the case docket (as document B.4)
and was thus also before Ms Neveling at the time she made her decision to prosecute. From this handwritten record, unfortunately
sketchy though it is, it appears that on 16 January 2002, Mr Moleko released accused no’s 2 and 3 from custody and at the same
time warned them to appear before the Engcobo Magistrate’s Court on 11 February 2002, the date to which he postponed the matter.
It also appears from the handwritten record for 13 September 2001 that accused no.1, who was charged with the same offences as accused
nos. 2 and 3, was on that date released on bail of R500, without any evidence being led. The handwritten notes for both 13 September
2001 and 16 January 2002 are in the same handwriting (thus obviously that of Mr Moleko). On the other hand, the handwritten record
of the proceedings in respect of the previous bail application brought in October 2001 by accused no’s 2 and 3, including the
arguments advanced by the defence attorney on 5 October 2001 in support of the bail application and the response by the public prosecutor
(again Mr Mgudlwa), are in a different handwriting altogether.
[43]
The fact that it was evident from the case docket that one of the three accused persons, all of whom were charged with the same Schedule
6 offences, had previously been released on bail of R500, without any evidence being led, should in my view reasonably have alerted
Ms Neveling, as a senior state advocate, to the need to make further enquiries as to precisely what had happened in the criminal
case up to 16 January 2002. She did not do so.
[44]
As already stated, Ms Neveling testified that she considered Mr Moleko’s warning statement before taking her decision to prosecute
him. (It is unfortunately necessary, for the purposes of this judgment, to quote from this warning statement in some detail.) The
statement (dated 7 February 2002) contains the following relevant passages:
�
eOn the day in question ie 16/01/2002 I was in the normal execution of my duties as a Magistrate at Engcobo Magistrate’s Court.
Among the cases which I presided over, there also was a case no. 851/2001(Engcobo) being a charge of Robbery – 3 counts.
The accused were called in . . . and it appeared that, from the explanation from the Prosecutor Mr Mgudlwa that one accused person
was in absentia, due to [his] being extremely sick and therefore only one accused person appeared before court on that day . . .
I personally made enquiries further about the convalescence of that absentee whether he was in . . . police custody or whereabouts
[he was] and the Public Prosecutor gave a confusing answer by saying he does not know where the sickly accused person was. As a Presiding
Judicial Officer, I was greatly concerned when the Accused could not stand . . . trial and the Public Prosecutor could not give a
direction. I further asked the Public Prosecutor as to what he wanted the Court to do if he did not know the whereabouts of such
an extremely sick accused person.
It is at this stage that both the Public Prosecutor Mr Mgudlwa and the Accused’s Legal Representative Mr Songo both stood up
to make explanations . . . the Court ended up not clear as to what was really taking place.
I asked Mr Mgudlwa further as to why this case was . . . not ready to be taken for trial as it appeared that [the] Accused persons
had been . . . incarcerated [since their arrest]. He then told me that he did not have the Police Docket with him. I further told
Mr Mgudlwa the PP of my concern for the long dragging [out of] the case and with no indication as to when it would be tried . . .
I then told the Public Prosecutor that, I would come to the rescue of the State as I do not want people to die in the hands of the
Police. I further [said] that the Public Prosecutor does not . . . indicate whether the Accused (absentia) was either hospitalised
or where he was. I further asked as to when did the man (Accused) become sick; whether the Police have taken him to a Doctor; where
is the Doctor’s certificate. All the details that were asked by the Court (myself) to Mr Mgudlwa were unanswered as he did
not know. The Public Prosecutor (Mr Mgudlwa) was extremely confused. Then I told the Prosecutor that, lest the man (Accused) dies in the hands
of the State, I am remanding the Accused on warning so that the relatives could engage in taking the man [Accused] for medical attention
as a matter of [urgency] . . .Due to such . . . confusion that was brought [about] by the Public Prosecutor, I therefore stated that
as soon as all the questions asked . . . are cleared [up] to the court, then the “Prison Stay” can always be re-arranged.
My action of the day was not in bad faith at all but was directed at the welfare of both the State and that of the Accused person.
. . . Responding to the allegations of . . . defeating the ends of justice, I was not at all acting to commit such crimes. . . I remember
that when telling the Prosecutor about the plight of Accused that die in the hands of the State, I quoted to him the incident of
Butterworth, where a prisoner died in Court lock-up cells. As a Magistrate, I feel that my actions were appropriate and aimed at the welfare of the Accused and to safeguard the State . . .
The Public Prosecutor was not helpful at all towards the court about things which needed clarity as he (the Public Prosecutor) was
just confused.’ (Emphasis added.)
[45]
On Ms Neveling’s own evidence, the documents referred to above were before her when she took her decision to prosecute Mr Moleko.
As illustrated, these documents contained various allegations which were contradictory in many important respects. This being so,
I am of the view that Ms Neveling should reasonably have been aware of the very real possibility that, if Mr Mgudlwa had indeed informed Mr Moleko that the two accused were charged with Schedule 6 offences, that they had to show exceptional
circumstances to the court before release, and that a previous bail application brought by them had been refused, Mr Moleko’s
‘anger’ and ‘fury’ was such that he simply did not hear this. Indeed, Mr Mgudlwa himself said, in his earlier
statement referred to above, that ‘all [his] pleas fell on deaf ears’.
[46]
Moreover, Inspector Didiza, in the other affidavit (not his ‘supporting affidavit’) to which he deposed on 24 January
2002, alleged that when Mr Mgudlwa tried to explain to Mr Moleko what had happened in the criminal case from the time of arrest of
the accused up to 16 January 2002, Mr Moleko ordered Mr Mgudlwa to sit down ‘without listening to him’.
[47]
This very real possibility that, during the incident in question, Mr Moleko – who was variously described as having been ‘infuriated’,
‘very angry’ and ‘very disturbed’ upon being informed by accused no 2 that he and accused no 3 had been incarcerated
since their arrest in September 2001 – is further borne out by what Captain Gwayi said in his abovementioned letter of complaint
dated 17 January 2002 (document B.1 in the case docket). To reiterate, Captain Gwayi stated that, although Mr Mgudlwa, Inspector
Didiza and the defence attorney Mr Songo ‘were more than ready to proceed with the formal bail application’, Mr Moleko
was not prepared to listen to anybody and ‘simply [shouted] everybody down’.
[48]
Upon reading Mr Moleko’s warning statement, Ms Neveling knew that Mr Moleko was adamant that he had not acted in bad faith on the day in question, but that all his actions had been taken in the interests of ‘the welfare of the
accused and to safeguard the State’. As appears from the extracts quoted above, Mr Moleko twice expressed his concern that
accused no. 3 – who, he said, was ‘extremely sick’ according to the explanation given to him by Mr Mgudlwa –
might ‘die in the hands of’ the State. He also referred to an incident at Butterworth, where ‘a prisoner had died
in the Court lock-up cells’. Ms Neveling herself testified to the effect that: '. . . in his warning statement he said . . . that he had the interest of the accused at heart, as some accused had previously died
in Butterworth in holding cells at court’.
[49]
It is quite clear from her evidence that, although aware of these serious allegations made by Mr Moleko, Ms Neveling made no queries
in this regard prior to taking her decision to prosecute him. She testified that she had not been informed of, nor was she aware
of, a problem of overcrowding in cells in Engcobo, or of (to use the words of Matthee AJ during the trial) ‘some sort of decision
locally to try and address that issue . . . that people not be kept in custody for too long’. However, she conceded that she
was aware of a big national campaign to address the problem of overcrowding in prisons, to reduce the number of awaiting-trial prisoners
and the ‘number of cases and backlogs on rolls’. This national campaign included the area under her jurisdiction.
[50]
In respect of the requirement of ‘absence of reasonable and probable cause’ for Mr Moleko’s prosecution, counsel
for the appellants submitted that Matthee AJ had in effect based his judgment upon a ‘central consideration of judicial independence’.
Counsel contended that the learned judge seemingly elevated this principle to ‘an almost immutable rule’.
[51]
In the relevant part of his judgement, Matthee AJ stated as follows: 'Section 1(c) of Act 108 of 1996 (hereafter “the constitution”) makes it clear that the rule of law is one of the cornerstones
of the constitution. Central to the implementation of the rule of law is the role of judicial officers. Section 165 of the constitution
makes this role clear. If judicial officers are to perform the duty set out in section 165(2) it goes without saying that they inter alia must be free from any fear whatsoever that they might be arrested and/or prosecuted as a result of them performing their judicial
duties, even where their application of the law is completely wrong. (This obviously cannot exempt judicial officers from criminal
prosecution where for example they have accepted a bribe to make a certain finding.) This principle is so fundamental and obvious
that anything submitted contrary to it only needs to be stated to be rejected. Sections 165(3) and 165(4) of the constitution emphasises
that there is a special responsibility on all organs of state to help judicial officers perform their constitutional duties.’
[52]
To my mind, this is too strongly stated. It is correct that the independence of the judiciary is enshrined in s 165 of the Constitution,
the relevant subsections of which provide as follows:
'(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear,
favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.’
[53]
These provisions make it clear that, whilst the courts are independent, they are nevertheless subject to the Constitution and the
law. A discussion of the principle of judicial independence, as enshrined in the Constitution, is certainly not necessary for the
purpose of this judgment. Suffice it to say that, in De Lange v Smuts NO, the Constitutional Court (per Ackermann J) stated that –
'Judicial officers enjoy complete independence from the prosecutorial arm of the State and are therefore well-placed to curb possible
abuse of prosecutorial power.’
[54]
So too, in Van Rooyen v The State, Chaskalson CJ stated that: �eIn deciding whether a particular court lacks the institutional protection that it requires to function independently and impartially,
it is relevant to have regard to the core protection given to all courts by our Constitution, to the particular functions that such
court performs and to its place in the court hierarchy. Lower courts are, for instance, entitled to protection by the higher Courts
should any threat be made to their independence. The greater the protection given to the higher Courts, the greater is the protection
that all courts have.’
[55]
Referring specifically to the magistrate’s courts, Chaskalson CJ pointed out that ‘magistrates are entitled to the protections
necessary for judicial independence, even if not in the same form as higher Courts.’
[56]
All this being so, however, the provisions of s 165(2) of the Constitution compel the conclusion that the fundamental principle of
judicial independence cannot simply be equated with a principle of immunity of judicial officers from criminal prosecutions for all
acts and/or omissions in the exercise of their judicial functions, irrespective of the circumstances of the individual case. It goes
almost without saying that the criminal prosecution of judicial officers for such acts and/or omissions will – and must –
remain an extraordinary and exceptional step. Any decision by the office of the DPP to prosecute a judicial officer must be taken
with the utmost caution, due regard being had to the fundamental principle of judicial independence, but also to the related principle
that judicial officers are subject to the Constitution and the law and thus cannot be completely immune from criminal prosecution,
in appropriate cases, for their acts and/or omissions in the exercise of their judicial functions.
[57]
In Relyant Trading (Pty) Ltd v Shongwe, this court stated the following:
The requirement for malicious arrest and prosecution that the arrest and prosecution be instituted “in the absence of reasonable
and probable cause” was explained in Beckenstrater v Rottcher and Theunissen [1955 (1) SA 129 (A) at 136A-B] 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 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.”
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. 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”
[see Beckenstrater v Rottcher and Theunissen at 135D-E]. (Footnotes omitted.)
[58]
In this case, Ms Neveling – although by her own admission aware of the provisions of s 17 of the Transkei Penal Code, 1983,
and of the ‘utmost tact’ and caution required in making any decision to prosecute a judicial officer for something done
or omitted in the exercise of his or her judicial functions – did not in my view exercise the requisite ‘ordinary care and prudence’ in making the decision to prosecute Mr Moleko.
[59]
It would appear that Ms Neveling did not even ascertain whether Captain Gwayi had received any response, from either the chief magistrate
or the control prosecutor of the Engcobo Magistrate’s court to his abovementioned letter dated 17 January 2002 (document B.1
in the case docket) before deciding to prosecute Mr Moleko. Her decision was taken by no later than 19 February 2002, just more than
one month after the date of the incident (16 January 2002) forming the subject of the subsequent prosecution.
[60]
It can hardly be said that, objectively, Ms Neveling took such reasonable measures as could be expected of someone in her position to inform herself fully of what had happened
on 16 January 2002 and whether this provided ‘reasonable and probable cause’ for Mr Moleko’s prosecution. This
means that Mr Moleko in my view discharged the onus of proving absence of reasonable and probable cause and thus satisfied the second requirement of a claim for malicious prosecution.
Ad (c) ‘Malice’ or animus injuriandi
[61]
In the Relyant case, this court stated the following in regard to the third requirement:
Although the expression “malice” is used, it means, in the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and another essels 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.” ’
[62]
In so doing, the Court decided the issue which it had left open in Lederman v Moharal Investments (Pty) Ltd and again in Prinsloo v Newman, namely that animus injuriandi, and not malice, must be proved before the defendant can be held liable for malicious prosecution as injuria.
[63] 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.’
[64]
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.
[65]
In this case, I am of the view that Mr Moleko did prove animus injuriandi on the part of the DPP. Ms Neveling clearly intended to prosecute Mr Moleko and was fully aware of the fact that, by so doing, he
would in all probability be ‘injured’ and his dignity (‘comprehending also his . . . good name and privacy’)
in all probability negatively affected. Despite this knowledge, she took the decision to prosecute without making any of the enquiries
which cried out to be made, thus acting in a manner that showed her recklessness as to the possible consequences of her conduct.
Costs
[66]
It follows that the appeal by the second appellant must fail, while the appeal by the first and third appellants succeeds. In this
regard, counsel for the appellants conceded that, if this were the outcome of this appeal, then the second appellant must be held
liable for Mr Moleko’s costs.
Conclusion
[67]
I would therefore make the following order:
1.
The appeal by the first and third appellants succeeds.
2.
The appeal by the second appellant is dismissed.
3.
The second appellant is ordered to pay all the costs of the appeal.
4.
Paragraph 5 of the order of the court a quo to the effect that ‘the first and third
defendants jointly and severally are liable for the costs of the matter’ is set aside and replaced with the following:
'The second defendant is liable for the costs of the matter.’
B J VAN HEERDEN
JUDGE OF APPEAL
Concur:
FARLAM JA
KGOMO AJA
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