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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 148/2013

In the matter between

ADRIAN ERNEST BOWLES …....................................................................................... Appellant

versus

MAKANA MUNICIPALITY..................................................................................First Respondent

TERRENCE BAFO............................................................................................Second Respondent

APPEAL JUDGMENT

HARTLE J

1. This is an appeal, with the leave of the trial court, against the dismissal of the appellant’s claims for damages premised, firstly, on the wrongful and unlawful arrest and detention of him by the second respondent (a traffic officer in the employ of the first respondent) at Grahamstown on 4 April 2009 arising from certain criminal conduct alleged to have been committed by him and, secondly, the resulting alleged malicious prosecution of the appellant also at the behest of the second respondent on charges of common assault and crimen iniuria arising from such conduct.

2. When the appeal was called there was no appearance for the respondents and neither were heads of argument filed on their behalf.  The matter was argued on a default basis by Mr Koekemoer who appeared for the appellant.

3. In the trial action the respondents admitted the arrest but pleaded that it was lawful since the appellant had, in the second respondent’s presence, made himself guilty of “assault and threatening an officer” after he was pulled over by him and issued with a ticket for failing to wear a seat belt.  Regarding the claim for malicious prosecution, the respondents claimed that the charges of failure to wear a seat belt, assault and crimen iniuria, were brought against the appellant “truthfully and by lawful means”, which provided reasonable and probable cause for the prosecution.  It was further denied that the second respondent was motivated by malice in doing so.

4. Although each party’s case at the trial bore similarities, the appellant and the second respondent each had a very different recollection and perception of the events giving rise to the claims.  At the end of the trial the magistrate was faced with diametrically opposed versions on the crucial issues before her.  The first of these was whether the appellant had indeed committed a crime in the presence of the second appellant, the jurisdictional fact which purported to provide a lawful basis for him to arrest the appellant without warrant.[1]  The second dispute was whether there was reasonable and probable cause for the prosecution (which depended in turn upon the factual finding whether the appellant had committed a crime in the presence of the second respondent) and whether the second respondent had pursued the prosecution with malice.  In this respect too the versions of the parties was irreconcilable, the appellant contending that the concerted acts of malice on the part of the second respondent were calculated, the latter insisting that he was merely going about his lawful duty in bringing the appellant to book in the peculiar circumstances.

5. Regarding the first claim, the magistrate in her judgment appears to have concluded, without any discernible reason therefor, that the second respondent “reasonably suspected” (sic) the appellant of having committed an offence in his presence and that this justified his arrest.  She appears though to have favoured the appellant’s version that the only conduct the second respondent could have complained of against the appellant was limited to him having waved a finger at his face.  Despite not condemning this behavior as criminal conduct, however, she nonetheless concluded that the second respondent reasonably entertained the belief that the appellant’s conduct constituted a criminal offence justifying the arrest.  This is a misdirection on its own.  In section 40(1)(a) the issue is whether objectively speaking the conduct complained of was an offence – not a reasonable belief.[2]

6. Regarding the claim for malicious prosecution, the magistrate’s summary and conclusion simply make no sense at all and is devoid of any proper reasons.  She concluded in a vacuum that “from the evidence led” it is “clear” that there was no malice on the part of the second respondent for charging the appellant, but does not explain how she reached such a finding.  She further concludes that there was probable cause for the prosecution but this is seemingly on the basis of the indication that the appellant was not co-operative with the second respondent whilst he was issuing a ticket to him, conduct which was never relied on as constituting an offence committed in the second respondent’s presence.  She again alludes to the appellant’s conduct in waving his finger at the second respondent’s face (once again ostensibly favouring the appellant’s version of the extent of the mischief which was committed), yet appears to find it a wrong grounding the arrest and subsequent prosecution.

7. Faced with the same difficulty as this court, the appellant’s attorneys made certain assumptions with regard to what the judgment was meant to convey.  Amongst the grounds stated in the appellant’s notice of appeal is that the magistrate erred in finding that the second respondent “reasonably suspected” the appellant of having committed an offence whereas there was no evidence whatsoever that an assault by the appellant on the second respondent had in fact taken place.  It was further contended that she erred in finding that proof of actual assault was unnecessary given that this fact would have been determined in the related criminal prosecution - despite the fact that it was found in those proceedings that no assault took place by the appellant on the second respondent.  She further erred by reading into the appellant’s claim, so it was submitted, that he had  claimed damages for the malicious prosecution arising from his failure to wear a seat belt, whereas the claim was in actual fact based on malicious prosecution for assault and, finally, although there appears to be no contention whatsoever that the second respondent was responsible for the arrest of the appellant and had caused the law to be set in motion against him, that she erred in finding that the appellant’s claim for unlawful detention should have been against the Minister of Safety and Security as opposed to the first respondent who was cited as a co-defendant in the action.

8. As is plainly evident from the aspects highlighted above, the magistrate’s judgment is singularly unhelpful.  It did not even so much as recognize what the real dispute was between the parties, either on the pleadings or the evidence which each party adduced in support of the onus each bore in the respective claims.

9. In the face of mutually destructive versions before her on the two issues which ultimately fell to be decided, she ought to have followed the approach set out in National Employers’ General Insurance Co v Jagers,[3] which is as follows:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.”

10. Needless to say however she had no regard in her judgment whatsoever to the probabilities and neither did she estimate the credibility of any of the witnesses who testified.  This poses a problem for the court on appeal when it does not have the benefit of the views of the presiding officer who observed the witnesses testifying and hearing their evidence, given the importance of such assessment in weighing up one version against another.  In such an instance an appeal court is obliged to do the best it can in assessing the evidence and determining the probabilities itself on the material before it.  The approach to be adopted in this regard, where the magistrate has floundered with regard to her duties as a trier of fact, was set out in  S v Frazenburgh & Others[4] as follows:

‘To summarise, as the trial Court made no findings as to the credibility of the witnesses who testified, this Court, on appeal, (a) has to do its best on the material on record; (b) cannot proceed on the assumption that there was no misdirection or irregularity in the process of reaching the decision that was reached by the Court a quo; (c) cannot assume that the Court a quo had cogent reasons for seemingly accepting the witnesses who implicated the appellants; and (d) should have regard only to the question of the onus of proof once all the relevant evidence has been examined to see whether there is any doubt as to which version is acceptable.’

11. In respect of the appellant’s claim for unlawful arrest and detention, since the respondents ostensibly relied upon the provisions of section 40(1)(a) of the Criminal Procedure Act as conferring the necessary authority on the second respondent  to arrest the appellant without warrant, the onus is upon them to prove that the crimes complained of were committed in the second respondent’s  presence.[5]  In respect of claim 2, however, the onus rests on the appellant to prove that the second respondent instigated the proceedings, that in doing so he had no reasonable and probable cause, that he acted animo iniuriandi, and that the prosecution failed.[6]

12. The appellant testified that on the morning of 9 April 2009 he was on his way from his work site to acquire certain materials at Penny Pinchers in Bathurst Street.  He pertinently noticed the second respondent’s vehicle parked on upper High Street facing Standard Bank.  He was driving the work’s vehicle at the time in which the seat belt could not be properly closed and therefore he was guilty, by his own admission, of not wearing a seat belt.  He especially observed the second respondent reversing out of the parking bay once he had passed him with a view to following him.  As he was about to turn into the parking lot at Penny Pinchers he noticed the flashing lights of the second respondent’s vehicle and heard the siren.  As there was no place to park in the street he pulled into the parking lot.  The second respondent pulled in behind him.  Both alighted from their motor vehicles, and approached each other.  He enquired from the second respondent what the matter was now, seeing as he had been stopped by him before - it transpires for the exact same traffic violation but in a different vehicle - on which occasion he had also had an altercation with him.  Instead of simply accepting that he had fallen foul of the requirement that he was required by law to wear a seat belt, the appellant questioned how the second respondent could possibly have known that he had not closed his seat belt around his body as it could not in his view had been evident from the latter’s vantage point when he first saw his motor vehicle.  He perceived that he was being victimized and made no bones with the second respondent about the fact that he felt “aggrieved”.  There were words between them “up and down”.  He handed the second respondent his licence to write the fine and proceeded into Penny Pinchers to do the business he had gone there for.  His anger had clearly not subsided by the time he came out of Penny Pinchers, for he continued to question the second respondent concerning how he could have known that he was driving without a seat belt.  In his perception the second respondent, who at this stage was sitting in his vehicle assiduously writing out the summons, was deliberately ignoring him.  This upset him to the extent that he waved his hand in front of the second respondent’s face in order to get his attention.  This he said he did without touching him at all in the process.

13. This conduct evoked a strong reaction from the second respondent who threw down his hat onto the passenger seat.  He proceeded to grab something in the vehicle which the appellant could not see at that stage and flung his door open with some force.  The appellant retreated and could now see that the second respondent held in his hand a pepper spray. 

14. He informed him that he was arresting him for assault which the appellant denied he had committed.  The appellant deferred to two other persons who were standing nearby who confirmed that no assault had taken place in their presence, but his fate was unfortunately sealed.  The appellant insisted that the second respondent’s supervisor, one Mr Kapp, be called and went back into Penny Pinchers in order to phone him there.  Mr Kapp was however not available.  Later the appellant was approached by both the second respondent and a police officer, who had since arrived, and who informed him that he had instructions from the second respondent to place him under arrest.  He argued against there being any basis for the second respondent’s accusations against him and enquired of the police officer whether he could lay a counter-charge against the second respondent for “maliciousness”.  It was on this basis he said he had agreed to go to the police station in Beaufort Street where, by false pretences as it were, he was placed under arrest and denied the right to pursue his own complaint against the second respondent.  In his view the second respondent had gone out of his way to conduct himself with malice toward him, even repeating as a mantra at the police station that he was going to teach him a lesson.

15. The second respondent testified that on the day in question he happened to be driving behind a white Toyota bakkie motor vehicle in upper High Street.  He noticed that the driver (who later co-incidentally turned out to be the appellant) was not wearing a seat belt because the buckle of it was hanging next to his shoulder.  He followed the vehicle into Bathurst Street.  At that stage he activated his blue lights and sirens to indicate to the unknown driver that he should pull off the road, but the driver continued driving.  The driver eventually pulled into the parking area at Penny Pinchers, this despite the fact that he could have parked in any of the available bays in Bathurst Street.  As they approached each other in the parking lot, the appellant disrespectfully and disdainfully asked him: “Terence what the fuck you want again?”  He explained that he had stopped the appellant because he was not wearing a seat belt.  He instantly felt insulted by the appellant’s words especially since the latter (who had also snubbed his courteous greeting) was in the wrong and he was just going about his lawful duty. The appellant relented, but not before challenging him for having failed to stop another driver driving ahead of him because she was driving very slowly. He informed him that he could write a ticket to him, but he was going to Penny Pinchers.  The witness requested his driving licence which he threw onto his clipboard.

16. Whilst the appellant was in Penny Pinchers, he busied himself in his vehicle, with the door open, writing the summons for a contravention of regulation 213(4) of the National Road Traffic Act, No. 93 of 1996.  When he returned, the appellant started pushing his index finger on the second respondent’s “pet” (peak cap), which fell off.  The appellant threatened further (in Afrikaans) that he was going to get him and said that he was a “ma se poes” (sic).  He continued, against the second respondent’s protestation not to touch him, to prod him, rendering it necessary for him to stand up and grab his pepper spray to defend himself. This for him was the last straw and he radioed for police back-up, fearful that something further might happen to him.  Constable Rwexu of the South African Police Service arrived shortly thereafter to assist him to arrest the appellant.

17. The appellant retreated back into Penny Pinchers.  The reason for this, which became apparent to him later on, was to call the second respondent’s supervisor, Mr Kapp, who was off duty at that time.  When Constable Rwexu arrived he explained to the latter that the appellant had both assaulted and sworn at him for writing him a summons.  He accompanied Constable Rwexu into Penny Pinchers to confront the appellant who resisted going with him pending his getting hold of Mr Kapp.  Eventually however he agreed to do so.  The appellant drove in his own vehicle with Mr Rwexu driving ahead of him and the witness behind in his vehicle.

18.  En route to the police station the appellant again failed to wear his seat belt, necessitating the issue by him when they arrived there of yet another summons for failing to wear a seat belt, which the appellant accepted this time without demur. The purpose of going to the police station, he explained, was to open a docket against the appellant for assault and crimen inuiria.   Once he had opened the docket against him, and dispensed with the formal procedures and reading him his rights etc, which he personally attended to, the appellant was handed over to a cell official and that is where, as far as he was concerned, the story ended.  It was the investigating officer’s call, he explained, whether to detain the appellant further. This was a decision in respect of which he could play no part and did not do so.

19. He denied that he had had any ulterior motive or that he was actuated by malice when he stopped the appellant earlier that day, or when he had him arrested and detained.  Rather, so he observed, the appellant was “the sole cause of his whole situation”.  He denied too having said to the appellant that he would “get (him)” or that he wanted to teach him a lesson, this despite the fact that his legal representative had not challenged the appellant’s evidence in this regard under cross examination. He also had no power, so he claimed, over how long the appellant was detained until his release on bail later that evening. It transpired in this regard that the investigating officer on standby that Saturday afternoon was not immediately available, a fact which was well known to the second respondent when he handed the appellant over to the cell official.

20. Prompted by his own legal representative as to why he had not rather issued a summons to the appellant in respect of the assault and crimen inuiria charges, he replied that “unfortunately there is no fine for that” and that in any event as a traffic officer he had “no powers” to write a fine or issue him with a summons for those charges.  Indeed he was convinced that that would be illegal.  He agreed though with the submission that the issue of a summons would have been the best way of securing the appellant’s attendance in court instead of by way of arrest.

21. He conceded that he had had a prior encounter with the appellant some three months before for failing to wear a seat belt and texting on his phone while driving, adding the sting that the appellant “is one of those public members who does not want to co-operate with the law.”  According to him, on that occasion as well, although he had not taken any formal steps against him, the appellant had sworn at him and had adopted an argumentative stance rather than accepting that he had infringed the driving Code. However he denied that he had been motivated by some ulterior motive other than law enforcement when he pulled the appellant over on the day in question.

22. Whilst initially not wanting to be drawn on the issue of what constituted the assault, he relented that it was the “tapping” of his cap.  He added later that the appellant had touched him by poking him on his forehead so that his peak cap fell of.  The crimen iniuria was constituted by the vulgar name calling. He defended the suggestion that he was someone who is inclined to get angry.

23. Constable Rwexu confirmed that on the day in question he received a call whilst patrolling to assist the second respondent at Penny Pinchers. On his arrival there, he found him outside the store.  The latter explained to him that he needed his assistance because he wanted to write a ticket to an offender who had resisted.  Without going into any detail, neither did he even ask, the second respondent told him that this person, the appellant, had insulted and assaulted him.  He found the appellant inside Penny Pinchers after he was pointed out to him by the second respondent.

24. When he informed the appellant of the allegations against him and requested him to accompany him, he refused.  Without agreeing - as the appellant had testified that he had given him an assurance that he could lodge his own complaint against the second respondent - the witness conceded that he told the appellant that he can go, and thereafter, if he has some “dispute” (if he thought that what the second respondent had “done to (him)” was against the law), he would have a right to charge him.  He denied however that he had placed a condition on his going to the police station, or that he was aware that the appellant wanted to lay a complaint against the second respondent.

25. He was quite content, despite the second respondent having had to call on him to assist him in arresting the appellant, to let him drive himself to the police station.  He ultimately left him, together with the second respondent, at the gate which leads to the office of the police cells.  He denied that he and the second respondent had prevented the appellant from lodging a complaint against the second respondent.  Whereas earlier at Penny Pinchers he noticed that the appellant was angry and aggressive, he averred that he was co-operative at the police station.

26. He supported the view adopted by the second respondent that it was the investigating officer and not the second respondent with whom the decision lay to release the appellant on bail or to prosecute him, as the case may be. He was also seemingly coy about conceding that a summons was a lesser means of bringing the appellant to account for the alleged crimes committed in the second respondent’s presence.

27. Mr Koekemoer conceded that if the facts found proven showed that the appellant had in fact prodded the second respondent as testified to by the latter that this would constitute an assault which had been committed in his presence.  However he urged upon the court to find on the probabilities in favour of the appellant on claim 1 that he did not assault the second respondent by prodding him with his finger nor did he use vulgar language towards him and also, in respect of claim 2, that the second element for a malicious prosecution claim was shown to be present because of the second respondent’s dishonesty in making up a false version against the appellant to justify a basis for the failed prosecution. The alleged malice it was suggested was obvious from a number of factors which he highlighted.

28. The difficulty in this matter, with the diametrically opposed versions of the appellant and the second respondent concerning what happened between them leading to the arrest of the appellant, without any estimation of their credibility as witnesses and with no extraneous facts to assist the court, should be immediately evident.  Although there appear to be indications in the record that the second respondent was a stubborn witness, hesitant to answer questions and that he lent himself to sarcastic and dramatic asides, it would be dangerous to lean in favour of the appellant whose own performance as a reliable witness is not necessarily manifest thereby. Against the suggestion that the second respondent was a mendacious traffic officer abusing his power, the indications to the contrary are that he is a proud and responsible law enforcer who felt true offence by the perceived disrespect shown to him by the appellant. Against the appellant’s supposed notion of being hard done by by the decision of the second respondent to adopt a more austere approach in dealing with him by causing him to be arrested (which he is entitled in law to do if a crime is committed in his presence) are indications of the appellant having “lost it” with the second respondent.  On his own evidence he was aggrieved, angry, argumentative and unyielding - whereas he had committed a traffic violation and was expected to co-operate with the law.  He was even disrespectful by waving his hand in front of the traffic officer’s face to get his attention while he was writing out the summons. Also, whether or not there was ample parking to be had in Bathurst Street, the impression was created by his parking in the parking lot at Penny Pinchers that he would submit to the law in his own good time; as also by the fact that he went into Penny Pinchers to do his business rather than standing by waiting for the ticket to be issued. Also the appellant appeared to undermine the second respondent’s authority by calling his supervisor, and would not capitulate even when Constable Rwexu arrived on the scene to assist the second respondent in bringing him to account.  Probabilities there are in favour of the appellant too, such as for example that it was unlikely that he would have been allowed to drive his own vehicle to the police station unless he had vociferously protested that he wanted to lay a complaint of his own against the second respondent; and that he was no doubt severely provoked by the latter’s seemingly high-handed traffic policing. But on the two narrow issues, i.e. whether the appellant touched the second respondent’s forehead with his index finger and used vulgar language toward him on the one hand (giving him a lawful basis to arrest) and, on the other, whether there existed reasonable and probable cause for the prosecution by the second respondent (which depends on the same factual determination) and that he was motivated by malice, the probabilities are in my view evenly balanced.  In this regard, as indicated above, the onus must be decisive of the matter. Therefore, in respect of claim 1, where the onus rests on the respondents to prove that the arrest was unlawful, I find that they have not discharged that onus on a preponderance of probabilities and the appellant is entitled to judgment in his favour.  However, in respect of claim 2 where the onus rests on the appellant and he has not so satisfied this court on a balance of probabilities that all the elements for a claim of this nature have been proved, then the respondents are entitled to judgment in their favour. The same applies in respect of any notion that the appellant may have made out a case that the second respondent had not exercised the discretion to arrest the appellant in good faith, or that he acted with male fides or from ulterior and improper motives.[7]

29. Concerning the issue of quantum, the appellant claimed damages in the sum of R40 000, contumelia in the sum of R27 500 and special damages in the sum of R2 500, being professional fees incurred in pursuit of securing the appellant’s release on bail on the weekend.  Mr Koekemoer urged upon the court to award general damages of at least R60 000.00, but I consider such amount to be exorbitant under the circumstances.  Although the appellant was held in a cell not suited to his comfort for approximately 8 hours between his arrest and subsequent release on bail in the sum of R300 (which for no person is a bed of roses), he was not arrested in full view of the public, neither was he physically restrained.  Indeed he was allowed to drive himself to the police station in his own vehicle. Further, any commotion caused in Penny Pinchers and attention drawn to him, was due to his own histrionics.  On his own version he behaved provocatively in the moments before his arrest as well and to that extent was the author of his own situation. 

30. The appellant is a 35 year old specialist plumber and site foreman for a local maintenance company in Grahamstown.  He is married with two young children, a son and a daughter.  His arrest had a significant impact on his family – particularly his children who were traumatized by the realization that he had been jailed when they accompanied his wife to secure his release on bail.  He also suffered the underserved consequences of a wrongful arrest, the most obvious being that his right to personal liberty was invaded. He was detained in a cell which he described as horrible, dirty and smelly, with other persons unknown to him. He felt frightened as this was the first time that he was locked up in a police cell.

31. This affront notwithstanding, and regard being had to all the relevant factors which I have taken into account, an award of general damages in the sum of R20 000 would in my view be appropriate to assuage the unlawful arrest and detention.  In my view the appellant is also entitled to his special damages, which fees were rendered necessary to secure his earliest release from custody.

32. In the result the following order is made:

(a) The appeal is upheld, with costs;

(b) The order of the court below is set aside and replaced with the following order:

‘1. The plaintiff succeeds in respect of his claim for wrongful arrest and detention, with costs.

2. The plaintiff is awarded damages in the sum of R22 500.00.

3. The plaintiff’s claim for malicious prosecution is dismissed with costs.’

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B HARTLE

JUDGE OF THE HIGH COURT

I AGREE

_________________

C PLASKET

JUDGE OF THE HIGH COURT

DATE OF APPEAL : 14 March 2014

DATE OF JUDGMENT: 24 April 2014

Appearances:

For the appellant: Mr J R Koekemoer instructed by Messrs Leon Keyter Attorneys, Grahamstown. (Ref. Mr R Human)

For the respondent: No appearance. (Initially represented by Wheeldon, Rushmere & Cole Attorneys, Grahamstown. (Ref. Mr Laing)

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