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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case no: CA223/2014

Date heard: 20 March 2015

Date delivered: 24 March 2015

In the matter between

BUYISWA GLADYS MANTLA.........................................................................Appellant

vs

ANTOINETTE TWYNHAM...........................................................................Respondent

JUDGMENT

PICKERING J:

[1] The appellant appeals to this Court against the whole of the judgment of the magistrate, Grahamstown, granting respondent absolution from the instance at the close of appellant’s case. 

[2] For the sake of convenience I shall refer hereunder to appellant and respondent as plaintiff and defendant respectively.

[3] It is common cause that at all material times plaintiff was employed by defendant at the latter’s restaurant and guest house, Bella Vista, Grahamstown, as a cleaner and preparer of certain dishes. 

[4] In her particulars of claim plaintiff alleged that on 12 February 2010 and at Bella Vista, the defendant “maliciously, alternatively wrongfully and unlawfully set the law in motion by causing a false charge of theft to be laid against the plaintiff with the South African Police Service by giving them false information that the plaintiff had committed theft of goods belonging to the defendant, such information being given with the object of having the plaintiff arrested and thereafter prosecuted and convicted of a criminal charge.  When giving this disinformation and causing this charge to be laid the defendant acted with ‘animus iniuriandi’ and had no reasonable or probable cause for doing so, nor did she have any reasonable belief in the truth of the information given.”

[5] Plaintiff alleges further that as a result of defendant’s conduct she was arrested without a warrant by members of the South African Police and thereafter detained in custody until 13 February 2010 whereafter she was released on bail.  The charge of theft against her was eventually withdrawn on 6 May 2010.

[6] She accordingly claimed damages in the sum of R100 000,00 for deprivation of liberty, malicious prosecution and contumelia.

[7] Whilst admitting that plaintiff was arrested the defendant denies that she maliciously set the law in motion by instigating or instituting the proceedings or that she acted without reasonable and probable cause or that she had been actuated by malice.

[8] The matter thereafter proceeded to trial.

[9] Plaintiff testified that she was at work at the restaurant on the night in question.  Before leaving work later in the night she had taken certain oxtail fat from a bin which, according to her, would have been thrown away and put it in a plastic bag.  She also took some leftovers from a customer’s order and added them to the oxtail fat in the plastic bag.  She put the plastic bag into her own bag.  She at first stated that she had not asked the defendant for permission because at the time that she took the fat and the leftovers the defendant was not in the restaurant.  She then said that in any event did not need defendant’s permission to take the items.

[10] Before plaintiff left the premises the defendant returned to the restaurant.  Defendant told her that she wanted to search her bag. She found the fat and leftovers in plaintiff’s bag and ordered her to leave them behind. Plaintiff did so.

[11] Thereafter plaintiff left the premises and proceeded to the taxi which had been ordered by the defendant to take the restaurant staff home.  Although defendant usually paid the taxi fare on behalf of her staff plaintiff was told on this occasion by the driver that she had to pay for herself.  She accordingly went back into the restaurant and demanded the taxi fare from defendant.  Defendant replied that plaintiff had to pay her own taxi fare as she had stolen the leftovers and fat.  From there things unfortunately escalated.  Had plaintiff not confronted defendant about the non-payment of her taxi fare the matter might have died a natural death.  Accusations and counter-accusations were unfortunately thrown and the police were eventually called.  According to plaintiff defendant told the police that she was a thief.  Plaintiff was then arrested by the police and spent a night in custody. 

[12] Plaintiff conceded that defendant had sometime previously told the restaurant staff that her foodstuff was being stolen and that because of this they were not allowed to take anything from the kitchen without her permission.  Plaintiff conceded further that defendant had put up a sign (apparently in the kitchen) stating that:

“No person is allowed to take or remove any items without approval of management.”

[13] Plaintiff conceded that this notice was in line with defendant’s policy which had been explained to the staff by defendant.  She reiterated, however, that the leftover food and the fat which she had taken were, in effect, abandoned items and that it had accordingly not been necessary to ask defendant for permission to remove them.  It was put to her that defendant did not even allow rubbish to be removed without permission but she denied this.

[14] The plaintiff also adduced the evidence of Nomsamo Mantla, the daughter of the plaintiff, who was also employed at the restaurant.

[15] She stated that on the night in question plaintiff had “some fat oxtail in her handbag, a piece of oxtail and a sweet potato, in a plastic”.  The oxtail was apparently left over from a customer’s meal. 

[16] Ms. Mantla confirmed the presence of the sign prohibiting the removal of any food without defendant’s permission.  In this regard she stated that “it is written there nothing can go out there, to mean the dog’s food even the fat.” (sic).  She confirmed also that plaintiff had not asked for permission because the defendant had not been present at the time.  She then added, however, that it was not necessary to obtain the permission of the defendant to take away “scraps” and “leftovers”, stating that “we never heard that if something must be thrown away we must first have permission.”  She was asked “if a customer returned food, and he ate half of the food, and it is leftovers, did you need the permission of the defendant to throw it in the bin?”  Her answer was an emphatic “No.”

[17] After the close of plaintiff’s case the defendant applied for absolution from the instance.  During the course of argument on this issue there was much debate as to whether or not the scraps and leftovers were res derelicta, it being strongly argued by plaintiff’s attorney that such scraps and leftovers had in fact been abandoned and that plaintiff had therefore been entitled to take them with her, without defendant’s permission.

[18] The magistrate rejected this argument and, in doing so, stated that “the court has heard the evidence of both parties.”  It was submitted by Mr. Jooste, who appeared for the plaintiff at the hearing of the appeal, that in stating that he had heard the evidence of both parties the magistrate had seriously misdirected himself.  In my view, however, it is clear that this statement by the magistrate was no more than a slip of the tongue during the course of a brief ex tempore judgment and that he was referring to the arguments presented to the Court by both parties.

[19] Mr. Jooste submitted in any event that the magistrate had erred in granting absolution from the instance.

[20] It is trite that absolution from the instance may be granted at the close of a plaintiff’s case if at that stage there is no evidence to support the plaintiff’s claim, or insufficient evidence upon which a court, acting reasonably, might find for the plaintiff.

[21] In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) the following was stated at 409 G – H:

“[W]hen absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should, not ought to) find for the plaintiff.”

See too Gordon Lloyd Page and Associates v Rivera 2001 (1) SA 88 (SCA).

[22] Mr. Jooste submitted that the onus was on the defendant and that, such being the case, there was no room for absolution at the close of the plaintiff’s case.  There is, in my view, however, no merit whatsoever in his submission concerning the incidence of the onus.  The submission is based upon a misconception of plaintiff’s cause of action.  This was not a claim for wrongful arrest and detention.  Plaintiff’s arrest and subsequent detention were in consequence of defendant having allegedly maliciously laid a charge of theft against her and her consequent deprivation of liberty formed part of her claims for damages flowing from the institution of the malicious proceedings.  The case of Mziza and Another vs Minister of Police [2013] JOL 30297 (GNP) relied upon by Mr. Jooste is therefore entirely distinguishable.

[23] As was submitted by Ms. Ainslie, who appeared for the defendant at the hearing of the appeal, in a claim of this nature plaintiff bears the onus of proving that defendant set the law in motion (instigated or instituted the proceedings); acted without reasonable and probable cause; and was actuated by malice (animus iniuriandi).  See: Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A).

[24] I should mention that plaintiff’s evidence was not without blemish.  She offered two contradictory explanations for her failure to have requested defendant’s permission to take the leftovers.  The first was that she could not do so as defendant was not present at the restaurant when she took the items.  Implicit in this explanation is an acknowledgment that permission was required.  The second was that no such permission was in fact needed.

[25] It is trite that credibility is usually not considered at this stage of the trial because the inquiry requires the court to determine whether there is evidence upon which the Court might find for the plaintiff if the evidence is believed, not whether it does believe the evidence.  See: Shenker Brothers v Bester 1952 (2) SA 664 (AD) at 670 E – G.

[26] In the present matter it cannot be said that the plaintiff’s evidence is so contradictory that no court could accept it.  Her evidence that no permission was required is supported by the evidence of her daughter, albeit that her daughter also contradicted herself inasmuch as she had initially stated that not even food destined for the dogs could be removed without defendant’s permission. 

[27] In my view therefore the matter should be approached at this stage on the basis that plaintiff’s case is that no permission was required to remove leftovers, scraps and “rubbish” from the premises.

[28] I shall assume for present purposes that defendant did in fact set the law in motion.  The question is whether defendant had reasonable and probable cause to do so.  In Beckenstrater’s case supra it was stated at 136 A – B that when it was alleged that a defendant had no reasonable cause for prosecuting it meant 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.

[29] Much argument was addressed to the magistrate as to whether “leftovers” and “rubbish” were res derelicta or not.  I imagine that some restaurant meals may be so devoid of any culinary merit that no-one, not even the restaurant owner, wants anything to do with them once the customer has rejected them.  In the present case, however, the issue of whether such leftovers are res derelicta was, in my view, entirely irrelevant. 

[30] What was relevant was the ambit of the prohibition, of which plaintiff was well aware, to the effect that staff members were not allowed to remove any items from the premises without defendant’s permission.  If that was a blanket prohibition which, to the knowledge of the staff, included “leftovers”, “scraps” and “rubbish” then it could not, in my view, be said that defendant acted without reasonable and probable cause and that she was actuated by malice in accusing plaintiff of theft. 

[31] On the contrary, however, if it were to be proved, as alleged by plaintiff, that “leftovers”, “scraps” and “rubbish” were, to the knowledge of the defendant, excluded from the ambit of the prohibition and that no permission was required to remove them, then defendant could not have entertained an honest belief founded on reasonable grounds that plaintiff was guilty of theft and that the institution of the proceedings against her was justified.

[32] In my view therefore, the magistrate’s conclusion that plaintiff had failed to make out a prima facie case was incorrect. Despite the deficiencies in the plaintiff’s evidence there is evidence upon which a court applying it’s mind reasonably might (not should, not ought to) find for plaintiff. Absolution from the instance should therefore not have been granted.

[33] I should mention that Mr. Jooste submitted that the notice prohibiting the removal of items merely formed a term of employment and could not elevate a transgression thereof to criminal conduct.  In my view there is no merit whatsoever in this submission and nothing more need be said about it.

[34] Accordingly the appeal must succeed.  The following order will issue:

1. The appeal succeeds with costs.

2. The decision of the magistrate absolving defendant from the instance is set aside and substituted by an order dismissing the application for absolution from the instance.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree,

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M. MAKAULA

JUDGE OF THE HIGH COURT

Appearing on behalf of the Appellant: Adv. Jooste

Instructed by: N.N. Dullabh & Co: Mr. Dullabh

Appearing on behalf of the Respondent: Adv. Ainslie

Instructed by: Wheeldon Rushmere and Cole Attorneys: Mr. van der Veen

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