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IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN

Reportable:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	

Case number: 	A146/2020 

In the matter between: 

THABANG POLITE MOLAHLEHI                  	                      Appellant         			

and 

THE MINISTER OF POLICE	                                          1ST Respondent 
                    
NATIONAL DIRECTOR OF PROSECUTIONS 	     2ND Respondent                                                      

CORAM:			MBHELE, ADJP et LOUBSER, J
_______________________________________________________

JUDGEMENT BY:	LOUBSER, J
_______________________________________________________

HEARD ON:		8 FEBRUARY 2021	

DELIVERED ON:         25 FEBRUARY 2021

[1]	This is an appeal against the finding of the Bloemfontein Regional Court Magistrate that the First Respondent is not liable for the alleged unlawful arrest and detention of the Appellant, and that the Second Respondent is liable for the malicious and wrongful prosecution of the Appellant for only a portion of the time during which the prosecution against him was continuing. On this point it is the case for the Appellant that the court a quo ought to have held the Second Respondent liable for the whole period of his prosecution.   

[2]	The Appellant and others appeared in the Free State High Court towards the end of 2016 on charges of gang raping a 16-year-old girl. Before the proceedings could get underway, the charges against him were finally withdrawn due to a lack of evidence linking him to the crime. The Appellant then instituted action against the First and Second Respondents in the court a quo, claiming an amount of R400 000-00 in damages for his unlawful arrest and detention and for his malicious prosecution. Following the finding of the Magistrate that the Second Respondent is liable for the payment of damages to a certain extent, the Appellant and the Second Respondent entered into a settlement agreement in terms of which the Appellant received an amount of R40 000 plus costs for the damages he suffered.

[3]	Unlike the position in most appeal cases of this kind, the facts of the present case are all common cause between the parties. The Appellant and his co-accused were arrested by the police on 2 February 2014 at a certain house in Botshabelo on charges of rape. The arrest followed upon a complaint of rape received by the police on that day. Upon their arrival at the scene, the police met the 16-year-old complainant and an unknown lady, who showed them a house where the rape took place. In one of the rooms, the police discovered used condoms and a blood stained bed. The complainant told the police that she knew only one of her rapists, but that she would be able to point the others out. The owner of the house indicated that she did not witness the event, but they promised to call the police should they get any further information.

[4]	Later that same day the owner of the house did call the police, informing them that members of the community had accosted the suspects and were assaulting them in the house. The police immediately rushed to the scene where they found a mob assaulting five suspects in a room. They were informed by the owner of the house that the suspects were the ones who raped the complainant. The police then arrested the five suspects and took them to the police station where they were detained. The Appellant was one of them.

[5]	The following day, 3 February 2014, the police took a witness statement from the complainant. In the statement, she mentioned that the name of one of her rapists was Thabang. It will be noted that the first name of the Appellant is also Thabang. The next day, 4 February 2014, the police arranged an identity parade. The suspects, including the Appellant, were amongst the people on the parade. At this parade, the Appellant was not pointed out by the complainant. The police then took the case docket to the prosecutor for a decision.

[6]     On the following day, 5 February 2014, the Appellant and his co-accused appeared in the Magistrates Court for the first time. The Magistrate postponed the case to 18 February 2014, and all the accused remained in custody until then. On 18 February 2014 the presiding Magistrate remanded the matter again to a further date, but at the same time he released the Appellant on warning. The case was thereafter postponed on a number of occasions until 26 June 2014, when the charges were withdrawn against Appellant because the prosecution was still awaiting the outcome of DNA forensic analysis that could link the Appellant with the crime in question.

[7]	About a month later, on 28 July 2014, the results of the DNA analysis were supplied to the prosecutor. The results were negative, meaning that the Appellant was excluded from the scene of the crime. Notwithstanding this outcome, the charges were then reinstated against the Appellant in the Botshabelo Regional Court. After several postponements, the Appellant was arraigned in the Free State High Court on the charge of rape. Eventually on 19 November 2016, the charges against the Appellant were finally withdrawn in the High Court, because the complainant indicated to the prosecutor on that day that the Appellant was not one of her rapists.  

[8]	Apart from finding that the First Defendant was not liable for the unlawful arrest and detention of the Appellant, the trial Magistrate in the court a quo distinguished two separate periods in the prosecution of the Appellant when he decided the liability of the Second Respondent for malicious prosecution. The first period was the period from 5 February 2014 – 26 June 2014, and the second period the one from the reinstatement of the prosecution to the final withdrawal of the charges on 19 November 2016. 
 
[9]	In my view, the trial Magistrate quite correctly distinguished these two periods, because the charges were initially withdrawn on 26 June 2014. Thereafter the charges were reinstated only some two years later, and in circumstances where there was no evidence against the Appellant at all. Despite this compelling factor, the Second Respondent persisted with the prosecution until it was finally confirmed by the complainant that the Appellant was not guilty. This only happened when the case was already before the High Court. On the basis of these facts the trial Magistrate held the Second Respondent liable for malicious prosecution during the second period. It speaks for itself that this finding of the trial Magistrate cannot be faulted.

[10]	As far as the finding of no liability for alleged unlawful arrest and detention for the First Respondent is concerned, we need not dwell on this question for long. This is so because Mr. Litheko, appearing for the Appellant, conceded before us that the arrest and initial detention of the Respondent was lawful in terms of Section 40(1)(b) of the Criminal Procedure Act 51, of 1977. That Section provides that a peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. The offence of rape is a Schedule 1 offence.

[11]	Mr. Litheko also conceded before us that the handing over of the docket to the prosecutor for decision after the complainant had failed to point out the Appellant at the identification parade, was the reasonable thing for the police to do. In my view, these concessions by Mr. Litheko were correctly made. However, in support of the appeal noted by his client, Mr. Litheko went further to submit that the police should have immediately released the Appellant on 4 February 2014 when the complainant failed to point him out. He made this submission on the basis of the Judgment in Minster of Police and Another v Du Plessis 2014(1) SACR 217 (SCA), where it was held that if it becomes irrefutably clear to the police, shortly after an arrest, that the detainee is innocent, there would be no justification for continued detention.

[12]	The facts in the Du Plessis-matter are clearly distinguishable from the facts in the present one. Moreover, it cannot be denied that the police in casu were faced with a dilemma after the identification parade in the sense that the complainant had referred to a Thabang in her witness statement and in the sense that members of the community had arrested a Thabang, who is now the Appellant, together with others for the gang rape of the complainant. It now did not make sense to the police that he was not pointed out by the complainant. That is clearly the reason why they decided to hand over the docket to the prosecutor for decision before the Appellant’s first appearance in court. Mr. Litheko clearly realised this conclusion, and therefore it came as no surprise when he conceded that this was the reasonable thing to do for the police.

[13]	In the premises, there is no indication before us that the Magistrate had misdirected himself in dismissing the Appellant’s claim against the First Respondent.

[14]	The next question is whether the Magistrate was also correct in dismissing the Appellant’s claim against the Second Respondent for malicious prosecution as far as the first period of prosecution is concerned.

[15]	In his Judgment the Magistrate underlined the fact that the Second Respondent called no witnesses to give evidence in relation to this period of prosecution. On the other hand, the Magistrate pointed out that the Appellant’s evidence in this regard simply boiled down to the fact that he was not pointed out at the identification parade, and for that reason the prosecution should have been abandoned without further delay.  

[16]	A proper reading of the trial record will show that the DNA of the complainant and the Appellant was obtained after the arrest of the Appellant. The obvious reason for this was to establish whether there was any real evidence indicating the Appellant as one of the perpetrators. We also know from the record that the results of the DNA analysis were only provided to the prosecutor on 28 July 2014. The trial Court was informed of this fact by Mr. Litheko himself when the Magistrate sought information in this regard. The result hereof is that on the last day of the first period, namely 26 June 2014, the prosecution was still awaiting the DNA results. In addition, the Respondents pleaded in their plea that the complainant had told the prosecution on 26 June 2014 that the Appellant was not one of her rapists.  

[17]	It has already become trite law that, in an action for malicious prosecution, a plaintiff must prove that the defendants instigated or instituted the proceedings, that they acted without reasonable and probable cause, that they acted with malice, with the intention to injure the Plaintiff, and lastly, that the prosecution failed. The Magistrate came to the conclusion in his judgment that the Appellant had failed to show any malice on the part of the Second Respondent as far as the first period is concerned. The Applicant’s sole reliance in the trial court on the outcome of the identity paraded for a finding of malice or a lack of probable cause, was simply insufficient, the Magistrate found.

[18] 	In the Notice of Appeal, the Appellant asserts, inter alia, that the Magistrate erred in his finding that there was a reasonable and probable cause for the Second Respondent to prosecute the Appellant during the first period. Having regard to all the circumstances, I cannot agree with this contention. 

[19]	Those circumstances are the following:

The Appellant was charged with a very serious crime, to wit the gang rape of a 16-year-old girl. At the same time the prosecution was obviously confronted with the anomaly that existed between the complainant’s witness statement and the outcome of the identification parade. The fact that the Appellant’s name is Thabang, must have contributed to the concerns of the prosecution at the time. In my view, it was therefore perfectly reasonable for the prosecution to first await the results of the DNA analysis before making a final decision on whether to proceed against the Appellant or not.  When the results were not yet available to the prosecution on 26 June 2014, they decided to withdraw the charges against the Appellant pending those results, which decision certainly cannot be faulted. In addition, it must be emphasized that the Appellant was not held in custody from 18 February 2014 to 26 June 2014. He was out on warning.

[20] 	The last issue to be decided, is whether the Magistrate was correct in awarding costs to the First Respondent. Mr. Litheko submitted that the Magistrate ought to have ordered the First   Respondent to pay the costs of the Appellant. Mr. Litheko based this submission on the Constitutional Court judgment in Affordable Medicines Trust and Others v Minister of Health and Others, where it was held that in litigation between the government and a private party seeking to assert a constitutional right, the principle is ordinarily that if the government wins, each party should pay its own costs. Considering the fact, however, that the Appellant did not commit any act that warranted his arrest, detention and prosecution, he was entitled to an award of costs in his favour, Mr. Litheko contended.

[21]	While it is true to a certain extent that the Appellant sought to assert the constitutional right to freedom in the court a quo, I am not persuaded that the issues in question were of a constitutional nature in the true sense of the word. The right not to be unlawfully arrested, detained and prosecuted, after all existed firmly in our common law long before the coming of the Constitution. I can therefore find no reason to question the Magistrate’s award of costs in favour of the First Respondent.

[22]	The following order is therefore made:
	1.  The Appeal is dismissed with costs.

       _________________
P.J. LOUBSER, J

I concur:							       _________________
N.M. MBHELE, ADJP

For the Appellant:			      Mr. M Litheko
						      Litheko Motsoeneng Incorporated
Instructed by:				      c/o Mphafi Khang Incorporated
						      Bloemfontein

For the First Respondent:  			Adv. L. R. Bomela
Instructed by:					Mr. M. A. Mohobo
							Office of State Attorney
                                                                 Bloemfontein

For the Second Respondent:                Adv. N. J. Khooe
Instructed by:                                         Mr. M.A. Mohobo
							Office of State Attorney
                                                                 Bloemfontein