---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)        REPORTABLE: NO

(2)        OF INTEREST TO OTHER JUDGES: NO

(3)        REVISED: NO

Date:    2 December 2021

CASE NO: 86694/14

 

In the matter between:

TSHEKO JAPHTA MARULE                                APPLICANT/PLAINTIFF

 

and

 

THE MINISTER OF POLICE                                1^ST RESPONDENT/1^ST DEFENDANT

 

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS                                    2^ND RESPONDENT/2^ND DEFENDANT

JUDGMENT

Van der Schyff J

 

Background

[1]            This is an application for leave to appeal against a judgment and order handed down on 4 October 2021. In the main action, the plaintiff instituted a claim against the first defendant for unlawful arrest and detention and the second defendant for malicious prosecution. I found that the plaintiff's arrest and detention were unlawful and that the first defendant was liable for the plaintiff's proven or agreed-on damages suffered in this regard. I dismissed the claim for malicious prosecution against the second defendant. Both the plaintiff and the first defendant filed applications for leave to appeal. For the sake of convenience, the parties are referred to as in the main action.

 

Legal principles

 

[2]            Section 17(1) of the Superior Courts Act, No. 10 of 2013, stipulates that:

'Leave to appeal may only be given where the judge or judges concerned are of the opinion that—

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.'

 

[3]         Hughes J explained in Nannen and Others v Momentum and Others (6796/05, 2275/05) [2017] ZAGPPHC 433 (14 June 2017); Honda Giken Kogyo Kabushiki Kaisha t/a Honda Motor Co Ltd v Big Boy Scooters (24784/2016) [2017] ZAGPPHC 752 (15 November 2017); BWM Financial Services (SA) (Pty) Ltd v Finlay and Others (55858/10, 55860/10, 56219/10) [2017] ZAGPPHC 383 (31 March 2017) that the test that applied previously in applications of this nature, was whether there were reasonable prospects that another court may come to a different conclusion. She continued:

'What emerges from section 17 (1) is that the threshold to grant a party leave to appeal has been raised. It is now only granted in the circumstances set out and is deduced from the words 'only' used in the said section. See The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para [6], Bertelsmann J held as follows:

"It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others  1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against." (Nannen, supra par [5]).

 

[4]            The question to be answered is whether any of the two parties seeking leave to appeal convinced this court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. The Supreme Court of Appeal explained in MEC Health, Eastern Cape v Mkhita (1221/15) [2016] ZASCA 176 (25 November 2016) that:

'A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound and rational basis to conclude that there is a reasonable prospect of success on appeal.'

 

The plaintiff's grounds of appeal

[5]            The plaintiff set out the grounds of appeal in the application for leave to appeal. A supplementary notice of application for leave to appeal was subsequently filed.

[6]            In the application for leave to appeal, the plaintiff submitted that the court erred or misdirected itself in law and in fact in applying the test for determining whether there was animus iniuriandi, for the purpose of malicious prosecution. The court ought to have found that in determining whether there was animus iniuriandi, the correct test, was whether, at the time of instituting the prosecution, there was reasonable and/or probable cause for doing so. Meaning whether there was evidence before the prosecutors to conclude that there were prospects of a successful prosecution. In the present case, there was no evidence before the prosecutors on which they could conclude that there were reasonable prospects of successful prosecution. The prosecutors must have foreseen that in instituting a criminal prosecution against the plaintiff under the circumstances, they were acting wrongfully and nevertheless continued to act as such; and by so acting they acted with dolus eventualis. This, the plaintiff submits, rendered the prosecution malicious.

[7]            In the supplementary notice of application for leave to appeal, the plaintiff elaborates on the abovementioned ground and states that:

 

                        i.         The court erred in accepting the reliance by the prosecutor on the so-called 'totality of the evidence'. In so doing, the court failed to have regard to the dictum by the Supreme Court of Appeal in Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) at para 12; and

                       ii.         The court erred in finding that at the institution and continuation of the prosecution, the prosecutor had no other intention than to have the plaintiff stand trial for the charges against him and to bring him to justice. The plaintiff submits that there was no evidence by the prosecutor that in doing so, he or she was motivated by the need to have the plaintiff stand trial for the charges against him where the evidence of the plaintiff was that the institution and continuance of the prosecution were malicious.

 

 

[8]        Counsel for the plaintiff submitted that the court is called upon to decide whether or not the second defendant put evidence before the court in terms of which the court could make a finding that at the time when the plaintiff was prosecuted, there was reasonable and probable cause to do so. Although the prosecutor who initially instituted the prosecution was not called to testify, advocates Brits and Barnard testified that they relied on the totality of the evidence contained in the docket in justifying the decision to prosecute the plaintiff. Nothing put to any of these witnesses indicated that prosecution was commenced with less evidence than what was contained in the docket. In addition to the statements of Mr. Mpofu, Constable Mpete, Mr. Loyiso, and Mr. Ntsheno, there was also the statement of, amongst others, Captain Naidoo.

                        i.         Constable Mpete declared in her statement that the plaintiff was pointed out to her by Mr. Mpofu as the court orderly who handed a bag to one of the prisoners in the cells.

                       ii.         The principal investigating officer, Mr. Ntsheno, stated in his statement that the 'policeman who worked at court nine' who brought a bag to the cells, was pointed out to him.

 

[9]        It is trite that a prosecutor exercises a discretion on the basis of the information before him, or her,[1] and courts 'are not overly eager to limit or interfere with the legitimate exercise of prosecutorial authority'.[2] In a distinguishing judgment in Kruger v National Director of Public Prosecutions, Zondo DCJ explained:[3]

'It is quite clear from paragraph 63 in Moleko that the Supreme Court of Appeal said that one of the features of the element of animus iniuriandi in this context is a subjective feature.  That feature is to the effect that, in order for the plaintiff to succeed in an action for malicious prosecution, he or she must allege and prove that the case is not one in which "the defendant honestly believed that the plaintiff was guilty".  This means that the Supreme Court of Appeal held that the plaintiff must allege and prove that the defendant did not act in good faith or that he or she acted in bad faith (mala fide).

[58] Although the Supreme Court of Appeal did not in Moleko refer to section 42 of the National Prosecuting Authority Act when it held that the plaintiff must allege and prove that the defendant did not honestly believe that the accused or plaintiff was guilty, it in effect held what section 42 of that Act lays down.  Section 42 provides:

"No person shall be liable in respect of anything done in good faith under this Act."

[59] The reference to "no person" includes a public prosecutor and the National Director of Public Prosecutions.  Therefore, a plaintiff must allege in his or her summons that the defendant did not act in good faith or, put differently, that the defendant acted in bad faith.  If that allegation is not made in the summons or particulars of claim, the plaintiff's action will be excipiable on the basis that it does not disclose a cause of action.' (Footnotes omitted).

[10]        In the present matter, the reason for withdrawing the criminal case against the plaintiff was stated upfront, a key witness indicated that he would not testify. The matter is thus to be distinguished from instances where cases are withdrawn without any reason.  If an objective assessment reveals an absence of sufficient evidence in the statements on which the prosecutors could rely to base their decision to prosecute the plaintiff, this is not in itself sufficient proof of mala fides. In Minister for Justice and Constitutional Development v Moleko[4] the court held-

'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.'

I accepted the evidence of both advocates Brits and Barnard that they, and their superiors, objectively held the opinion that a sufficient case was made out for the plaintiff to answer to. On scrutinising the statements contained in the docket a case may be made out that the prosecutors were negligent, but negligence is not sufficient to constitute malice.

[11]        The plaintiff did not make out a case that the second defendant's employees acted in bad faith with the required animus iniuriandi. In the absence of malice being proven, there are no reasonable prospects of success on appeal.

 

The first defendant's grounds of appeal

 

[12]        The first defendant applies for leave to appeal against the findings that the plaintiff's arrest and detention were unlawful and that the first defendant is liable for any proven or agreed-on damages suffered as a result of the arrest and detention for the duration of the period that the plaintiff was detained.

[13]        Except for one, the grounds of appeal all relate to factual findings made by this court. A comprehensive written judgment was handed down, and it would serve no purpose to deal in detail with each of the alleged factual errors because the reasons for the findings are set out in the judgment. After considering the grounds of appeal and the evidence presented, I am of the view that there are no reasonable prospects that another court will come to a different conclusion.

[14]        The remaining issue addressed in the first defendant's grounds of appeal is the application of the principle laid down in De Klerk v Minister of Police.[5]  I dealt with this aspect in the written judgment. I am of the view there is no reasonable prospect that another court will come to a different conclusion given the facts of this matter.

[15]        Since costs follow success, and both parties were unsuccessful in their respective applications for leave to appeal, it is justified that each party is liable for its own costs.

 

ORDER

In the result, the following order is granted:

1.    The applicant's application for leave to appeal is dismissed.

2.    The first respondent's application for leave to appeal is dismissed.

3.    Each party is to pay its own costs.

 

E van der Schyff

Judge of the High Court

 

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 2 December 2021.

 

Counsel for the applicant:                             Adv. D. Mtsweni        

Instructed by:                                                 Gildenhuys Malatji Inc.

Counsel for the first respondent:                   Adv. M Thabang                    

Instructed by:                                                 State Attorney, Pretoria

Date of the hearing:                                       22 November 2021

Date of judgment:                                          2 December 2021

                                                                           

                                                                           

 

---