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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL, DURBAN CASE NO: 1027/2004

In the matter between:

NICHOLAAS WALTERS Plaintiff

and

THE MINISTER OF SAFETY AND SECURITY

OF THE REPUBLIC OF SOUTH AFRICA First Defendant

ETHEKWINI MUNICIPALITY Second Defendant

THE MINISTER OF JUSTICE Third Defendant

CARROL ANN WALTERS Fourth Defendant

NICHOLAAS WALTERS (JNR) Fifth Defendant

WYNAND ADRIAAN SWART Sixth Defendant

ETIENNE FOURIE Seventh Defendant

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JUDGMENT

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SKINNER AJ:

[1] This matter has had a long history. The action was instituted in February 2004 (although the summons was dated September 2003) with the particulars of claim running into some 30 pages and pleading a host of evidence including attaching a transcript of evidence led in a Magistrate’s Court trial. Not surprisingly it would appear that one or more of the defendants excepted or threatened to except and that as a consequence amended particulars of claim were delivered. In the interim however the first, third, fifth and sixth defendants had delivered their plea (apart from the third defendant against whom the plaintiff has withdrawn, these are the same defendants presently before me) and did not subsequently amend their plea. In consequence thereof the pleadings are a shambles.

[2] The plaintiff’s claims are based on alleged malicious arrest and alleged malicious prosecution. These arise out of an incident on 23 August 2001 where the plaintiff was arrested and detained for allegedly driving under the influence of alcohol (or having excessive alcohol in his breath) and the prosecution arising therefrom as well as a further incident on 28 April 2002 where he was allegedly again arrested and detained (this time for allegedly contravening a domestic violence order) and the subsequent prosecution arising therefrom. In both prosecutions the plaintiff was granted a discharge in terms of section 174 of the Criminal Procedure Act 51 of 1977 at the close of the State case.

[3] At the commencement of this hearing I granted an order by consent separating in terms of Rule 33(4) of the Uniform Rules of Court the issues of liability and quantum. Accordingly the hearing proceeded only on the issue as to whether the first, fifth and sixth defendants were liable in law. Mr Singh who appeared for the plaintiff submitted in his opening address that the only issues to be determined were in fact the lawfulness or otherwise of the two arrests of the plaintiff and whether the prosecutions were brought about by an improper motive.

[4] I have indicated that the present proceedings concerned only the first, fifth and sixth defendants and that the proceedings against the third defendant had been withdrawn. I was informed that the claims against the second and seventh defendants had been settled while the plaintiff was not at this stage proceeding against the fourth defendant who was apparently overseas.

[5] Three bundles of documents were handed up by Mr Singh who informed me (as was also recorded in the minute of the rule 37 conference) that the documents “will serve as evidence of what they purport to be without further proof, without admitting the contents of such documentation.”

[6] Included in the bundles were various transcripts of proceedings in the Magistrate’s Court. In response to a question from me, Mr Kuboni who appeared for the first, fifth and sixth defendants, acknowledged that the transcripts could be accepted as accurately reflecting what had occurred or been stated by witnesses in the Magistrate’s Court proceedings. Such admission however did not extend to the truth or reliability of what was stated by any such witness.

[7] The plaintiff was the sole witness to give evidence. Towards the end of his cross-examination of the plaintiff Mr Kuboni requested that the matter be adjourned because he needed to take instructions from the sixth defendant (who had apparently been on leave and accordingly had not consulted with counsel) and he wished to be able to put to the plaintiff the version of the sixth defendant. I was not prepared to let the plaintiff remain under cross-examination when arrangements should have been made to have the sixth defendant at court and I accordingly refused such adjournment. After the plaintiff closed his case, Mr Kuboni requested that the matter stand down until the following day (it was set down for two days) so that he could call the sixth defendant as a witness. I acceded to this request on the basis that the matter would still finish within the allocated time but directed that the first, fifth and sixth defendants pay the wasted costs of the hearing on the second day since the hearing would otherwise have finished during the course of the first day. When the matter resumed on the second day, Mr Kuboni informed me that he had not been able to secure the attendance of the sixth defendant at court but that his instructions were to close his case. He accordingly did so.

[8] The plaintiff in his evidence only referred in passing on two occasions to the transcript of the evidence given during the Magistrate’s Court trial for the alleged driving under the influence. On neither occasion did it relate to facts of which he had any personal knowledge. There appears to have been a misunderstanding between the legal representatives as to the import of the agreement reached in respect of the documents. In my view however it is clear that the documents or transcripts could be referred to without having to prove the documents or the authenticity of the transcripts but that evidence would have to be led to establish the contents of any document. In relation to the transcripts they would stand as evidence of what was said by a person on a particular occasion but otherwise could not be utilised – in particular the transcripts could not be utilised to establish that the evidence reflected therein was correct. To hold otherwise would be to offend the well established rule in Hollington v Hewthorn (Hollington v F Hewthorn & Co Limited 1943 2 All ER 35) as received into our law and applied or commented on in numerous cases. Accordingly the transcripts carry no evidential value particularly as the witnesses whose evidence is set out therein did not give evidence before me.

[9] In my view this matter has accordingly to be decided solely on the oral evidence before me which, as I have indicated, is only that of the plaintiff. In my view the plaintiff was palpably an honest witness but clearly somebody who was not sophisticated. His evidence on occasions was confused and little weight can be attached to his estimation of distances because, for example, he referred to the breadth of the court room which was probably in the vicinity of 7 metres or so as being about 25 metres. Nevertheless his demeanour was satisfactory and I at no stage formed the impression that he was doing anything other than give truthful evidence to the best of his ability. Mr Kuboni did not in fact even suggest either in cross-examination or in argument that the plaintiff was not truthful or that his evidence should be rejected.

[10] In relation to the first instant (23 August 2001) the plaintiff testified that he had been to a restaurant known as “Cheers” for dinner. He had consumed one pint of beer and after watching some television had left to return home to feed his dogs. When he was already indicating to turn into the street in which he resides (his house being the second house from the corner) he heard a siren behind him. He could not stop in the middle of the road and accordingly drove (approximately 25 metres on his estimate) into the driveway of his house. He then approached the driver’s side of the police vehicle (it was not clear whether this was a vehicle belonging to the South African Police Services or the Metro Police) driven by the seventh defendant. The sixth defendant emerged from the passenger side of the vehicle and asked him whether he had had anything to drink. He said that he had consumed a pint. The sixth defendant then said “We are arresting you for drinking and driving.” He had questioned the sixth defendant as to how he could do this without taking a blood sample and said that he was not drunk. The sixth defendant told him to accompany them to the New Germany Metro Police Station.

[11] The plaintiff opened his gate and drove his vehicle inside. He gave his dogs some food and then accompanied the sixth and seventh defendants in their vehicle to the Metro Police Station. After arrival he was taken to another policeman, one Cameron, who was in charge of the “breathalyser”. Cameron had switched the machine on, waited for a while, and then asked him to blow into it. He did so but nothing happened – there was no reading at all on the Drager machine. He was then asked by Cameron to blow again and did so but again there was no reading.

[12] On the third occasion in which he blew into the machine it gave a reading of .314 which would of course be substantially in excess of the prescribed maximum. The plaintiff had said that he did not understand how this could be.

[13] Under cross-examination the plaintiff agreed that after this reading had appeared on the machine he was advised of his constitutional rights and then arrested. He was then taken to the Pinetown South African Police Services station. He further said under cross-examination that at the New Germany Metro Police station he was not advised that he was being arrested, just that he should follow the police to the Pinetown South African Police Services station. His evidence is accordingly somewhat confused – he did agree with the suggestion put to him in cross-examination regarding his arrest but clearly did not understand it. I accept his original statement that he was arrested at his house by the sixth defendant. This is consistent with his later evidence that he was not told at the Metro Police Station that he was now being arrested. It is also more probable and explains why he accompanied the police from his home.

[14] The plaintiff further testified that he was placed in a holding cell at the police station and kept there for several hours before being released on bail. Although he had been told that transport would be arranged for him he had “waited and waited” and when there was no transport had walked a fairly considerable distance to his home arriving back at about 4 a.m. He said that the charge against him arising out of this incident had been withdrawn but that a few weeks after he had been found not guilty on the family violence charge he had been contacted by a member of the South African Police Services and told to return to the Pinetown Police station for his finger prints to be taken as the original set had been lost. The charges were then reinstated and after appearing in court on numerous occasions he was, as I have indicated, discharged at the close of the State case.

[15] In respect of the second incident (April 2002) he said that there had been a very acrimonious divorce between himself and the fourth defendant. She had during the course of this obtained an interim order against him in terms of the Domestic Violence Act No. 116 of 1998.

[16] His evidence was that on Friday 26 April 2002 he had received a telephone call from a person who did not identify himself but had enquired as to the plaintiff’s identity. When the plaintiff asked him what the problem was the caller had said “we are coming to arrest you for family violence” and terminated the call.

[17] At approximately 3 a.m. on Sunday 28 April 2002 he was woken by a visitor who was staying in his home and who informed him that the South African Police were there to see him. He had gone to the front door and opened it to find the seventh defendant there who said that he was coming to arrest the plaintiff “for family violence”. The sixth defendant was also present but standing outside the plaintiff’s property by the gate – the plaintiff had formed the impression that the sixth defendant was afraid of the plaintiff’s dogs. He said that he had observed the seventh defendant radioing for another vehicle because there was no space in the Metro Police vehicle because of the presence of a dog in the back.

[18] He was detained at the South African Police station from shortly after 3 a.m. on the Sunday morning until he appeared in court on Monday 29 August 2002. He described the circumstances under which he was held which are not relevant for present purposes.

[19] He denied that he had contravened the domestic violence interdict or that he had contacted his former wife and children in any way.

[20] He further testified that he had not been shown the warrant of arrest but was aware that the fifth defendant (his son) had brought the warrant to the police station while he was still in custody although he had not observed this himself.

[21] Under cross-examination he said that it was the seventh defendant (who was a member of the Metro Police) who had arrested him. He disputed however that the sixth defendant (who was a member of the South African Police Services) was “just a passenger” – he said that the sixth defendant had been with the seventh defendant and was working with him.

[22] The evidence of the plaintiff both in chief and under cross-examination was that he believed that both incidents had been orchestrated by his former wife and by his son. In part he formed this view because when he was in custody on the domestic violence charge his son had come to the police station and said “now we have got you where we want you” and words to the effect that he hoped the inmates would rape the plaintiff and give him HIV/Aids. He also believed that his son had been present when he was detained. There was another vehicle which had parked behind a lamp-post with the lights off and he assumed his son was in that vehicle because otherwise he could not understand how his son would arrive at the Metro Police station ten minutes or so after the plaintiff himself was taken there in the early hours of Sunday morning.

[23] The plaintiff’s evidence on certain aspects was, as I have indicated, confused but since there is nothing to gainsay his statements I must accept them particularly where he was not forced into making concessions under cross-examination and was not challenged on most of his evidence.

[24] In relation to the question of onus, Mr Kuboni accepted that in respect of the August 2001 incident the onus was on the defendants to justify the arrest of the plaintiff. He submitted however that in respect of the April 2002 arrest the onus was on the plaintiff to show that there were no grounds on which the police could have acted. He stressed that the difference between the two was that in the latter there was a warrant of arrest whereas in the former there had been no such warrant. In my view however this is not correct. It was common cause that he had been arrested and detained. In Zealand v Minister of Justice and Constitution Development [2008] ZACC 3; 2008 (2) SACR 1 at [25] the court held :

“It has long been firmly established in our common law that every interference with physical liberty is prima facie unlawful. Thus, once the claimant establishes that an interference has occurred, the burden falls upon the person causing that interference to establish a ground of justification.”

[25] Mr Kuboni further submitted that the onus was on the plaintiff to show that the arrest and prosecution were malicious and further that in respect of the August 2001 incident the arrest of the plaintiff was justified under section 40(a) of the Criminal Procedure Act in that the offence was committed in the presence of the arresting officer. I do not agree with this. It is not required of a plaintiff in a claim for malicious arrest to allege and prove the presence of animus iniuriandi (Minister of Justice v Hofmeyr [1993] ZASCA 40; 1993 (3) SA 131 (A) at 154 H-J). Further the onus is on a peace officer who relies on section 40(1)(a) to prove that a crime was committed in his presence (Brand v Minister of Justice and Another 1959 (4) SA 712 A) - where an onus rests on a party and such party does not call a relevant witness, he runs the risk of the onus proving decisive against him.

[26] In the present case there was, as I have indicated, no evidence on the part of the defendants whatsoever. Accordingly it cannot be said that the defendants have established that the offence of driving under the influence or driving with excessive blood alcohol was committed in the presence of the sixth defendant. The present undisputed evidence (that the Drager machine had either failed to operate on the two immediately preceding occasions or had in fact shown that there was no alcohol in the plaintiff’s blood) means that the third reading cannot without further enquiry be accepted as indicating that an offence was committed in the presence of the sixth defendant. In any event the plaintiff’s evidence, as I have indicated, is that he was arrested at his home prior to being tested.

[27] The peace officer arresting a person must have reasonable and probable cause for such arrest – this means “an honest belief founded on reasonable grounds that the institution of proceedings is justified. The concept involves both a subjective and an objective element” (Prinsloo and Another v Newman 1975 (1) SA 481 at 495 G-H). In the absence of any evidence by the sixth defendant it cannot be said that subjectively he had such honest belief particularly in the light of the undisputed evidence of the plaintiff that in effect there was a conspiracy by the sixth defendant and others to cause him to be arrested and prosecuted.

[28] What might at first sight have been regarded as fanciful evidence by the plaintiff of a conspiracy gained considerable support from the fact that on two separate occasions some eight months apart it was the same member of the South African Police Services and the same member of the Metro Police who detained the plaintiff. This, coupled with the fact that they were both working colleagues of the plaintiff’s estranged son, lends considerable credence to his evidence.

[29] As regards the arrest on the domestic violence charge section 8 of the Domestic Violence Act 116 of 1998 makes it clear that where a warrant of arrest is authorised such warrant is to be handed by the complainant to a member of the South African Police Service. Thereafter if it appears to the member concerned that there are “reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must forthwith arrest the respondent”. If however the member concerned is of the opinion that there are insufficient grounds for arresting the respondent then he is required to hand a written notice to the respondent which, inter alia, calls upon the respondent to appear before a court at a specified date and time.

[30]] I have two difficulties with the conduct of the sixth defendant in relation to this incident. If it was the seventh defendant who purported to arrest the plaintiff, the sixth defendant would have known that a Metro policeman would have no authority to arrest an individual under the Domestic Violence Act and that the warrant of arrest is directed to and required to be executed by the South African Police Services. Accordingly at the least the presence of the sixth defendant was either lending his authority to the proceedings (and therefore in effect arresting the plaintiff) or he was aware that the “arrest” by the seventh defendant was unlawful. In the latter event he not only failed in his duty by allowing an unlawful “arrest” to take place in his presence but further perpetuated it by allowing the plaintiff to be detained in police custody. In either event he brought about the wrongful arrest of the plaintiff.

[31] Secondly the sixth defendant had previous knowledge of the plaintiff and an explanation of his decision to arrest the plaintiff at 3 am on a Sunday morning is called for but is absent.

[32] For these reasons I find that both arrests of the plaintiff were executed by the sixth defendant and that such arrests were unlawful. It was common cause that in the event of such a finding, the first defendant accepted that he would be vicariously liable for the actions of the sixth defendant.

[33] With regard to the alleged malicious prosecutions, Mr Kuboni submitted that it was not clear from the evidence of the plaintiff when the decision to prosecute him on either of the incidents was taken and that the plaintiff had to establish that the defendants had set the law in motion in the sense of instigating or instituting the proceedings. He submitted that since the decision to prosecute was taken by the National Director of Public Prosecutions or a member of such person’s staff, the first defendant was not responsible for the decision to prosecute. As support for this submission he relied upon the case of The Minister for Justice and Constitutional Development and Others v Moleko [2008] (3) All SA 47 (SCA). In this regard however it must be borne in mind that the first defendant is the Minister of Safety and Security, not the Minister of Justice and the reasoning in such judgment is distinguishable. In any event however this is not of relevance in the present circumstances in the light of the concession I have previously referred to regarding the liability of the first defendant for the acts of the sixth defendant. The question then is simply whether the sixth defendant instigated or instituted the proceedings or whether this was a decision purely by the prosecutor.

[34] In The Minister for Justice and Constitutional Development and Others v Moleko (Supra) at [10] and [11] the court held :

“It was submitted before us that the trial Judge erred in failing to have regard to the fact that the prosecution occurred at the instance of the DPP and that the role of the police was merely to gather relevant information. With regard to the liability of the police, the question is whether they did anything more than one would expect from a police officer in the circumstances, namely to give a fair and honest statement of the relevant facts to the prosecutor, leaving it to the latter to decide whether to prosecute or not.”

[35] In the present instance the plaintiff clearly cannot testify as to what statement of facts was made by the police to the prosecutor. Against the background however of the plaintiff’s evidence that his son (the fifth defendant) was acting in concert with, inter alia, the sixth defendant it follows that the statement (whatever it was) given by the sixth defendant to the prosecutor cannot possibly be described as being “fair and honest”. If it had been fair and honest, there would have had to be a disclosure of acting in concert with the fifth defendant for ulterior purposes. In such event I have no doubt that there would have been no prosecution at all. In any event, on the same reasoning as set out earlier in this judgment, it was open to the defendants to lead the evidence of the sixth defendant or indeed that of the prosecutor and their failure to do so leads me conclude that they have not discharged the onus.

[36] The absence of any evidence by the sixth defendant means that there is nothing to show why he apparently believed that there was such a risk of imminent harm as to warrant having the plaintiff arrested at 3 a.m. on a Sunday morning and why he could not merely have during normal working hours have delivered the requisite notice to the plaintiff. The failure by the defendants to call any evidence showing when the complaint by the fourth defendant was made and why the matter was urgent again lent credence to the view of the plaintiff that there was a conspiracy against him.

[37] In all the circumstances I find that the plaintiff has shown that the defendants set the law in motion, that they acted without reasonable and probable cause, that they acted with malice and (as was common cause) that the prosecution of the plaintiff failed. Accordingly the defendants must be held liable for such malicious prosecutions.

[38] I have referred in passing to the fifth defendant. He remains a shadowy figure in this trial. He was not present during the hearing and no explanation was tendered to account for his absence. It would again have been a simple matter for him to testify to deny that there was any conspiracy as alleged by the plaintiff or any ulterior motive prompted by him for the arrest and prosecution of the plaintiff. Accordingly on the undisputed evidence before me I must find that he acted with common purpose with the sixth defendant in causing the plaintiff to be wrongfully arrested and prosecuted.

[36] I therefore make the following order :

1. The first, fifth and sixth defendants are found to be liable jointly and severally for such damages as the plaintiff may prove arising from his unlawful arrest on 23 August 2001 and 28 April 2002 and for the wrongful prosecutions consequent upon such arrests.

2. The first, fifth and sixth defendants are directed jointly and severally to pay the costs of the plaintiff incurred in respect of the hearing on liability.

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SKINNER AJ

DATES OF HEARING 22, 23 JUNE 2009

DATE OF JUDGMENT 25 JUNE 2009

PLAINTIFF’S COUNSEL MR VIREN SINGH

INSTRUCTED BY VIREN SINGH ATTORNEYS

DEFENDANTS COUNSEL MR W S KUBONI

INSTRUCTED BY THE STATE ATTORNEY

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