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 IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

                                                                                                CASE NO: 1673/2017

In the matter between:

MARKS SMUTS MATHEBULA                                        Appellant

AND

MINISTER OF POLICE                                                    1^st Respondent

NATIONAL DIRECTOR OF PUBLIC                                2^nd Respondent

PROSECUTION

JUDGMENT

MONTSHO – MOLOISANE AJ

INTRODUCTION

[1]          The Plaintiff is an elderly man and a pensioner. He instituted an action against the Defendants for (a) unlawful arrest and detention; and (b) malicious prosecution. He is claiming from them damages in the sum of R7 000,000.00 (seven million rand) and R1 000,000.00 (one million rand) respectively.

[2]          The claim for unlawful arrest is directed against the first Defendant. The Plaintiff is however suing both Defendants jointly and severally for payment of damages he suffered, arising from the entire period of his detention. The claim for malicious prosecution is, as set out in the pleadings, directed against the second Defendant. Both claims are based on vicarious liability, by virtue of the employment relationship that existed between the two Defendants and the implicated officials.

[3]          Prior to the institution of these proceedings, the Plaintiff complied with the statutory requirements by serving the Defendants with a Notice contemplated in section 3(1) of the Institution of Legal Proceedings against Certain Organ of State Act, No. 40 of 2002.

FACTUAL MATRIX

[4]          The genesis of the Plaintiff’s demise dates back to the evening of 03 April 2016 when he was arrested, without a warrant at his home in Madidi Village, North-West Province by one Constable Keitumetse Sello Gerald Raphuthi (“Constable Raphuthi”), and his colleague, Constable Simon Sekgala (“Constable Sekgala”), both of whom are members of the South African Police Services (“the SAPS”).

[5]          The two police constables were at the time stationed at Mabopane Police Station in Gauteng Province, and were acting within the course and scope of their employment with the first Defendant when they arrested the Plaintiff.

[6]          They handcuffed the Plaintiff and drove with him to Klipgat Police Station, where they registered police docket Klipgat CAS 16/04/2016, and thereafter detained him at Mabopane Police Station. The Plaintiff remained in detention at the said police station on the evening of 03 April 2016 and the next day in the afternoon, Warrant Officer Ntshabele and his colleague, Warrant Officer Rakuba, who were both stationed at Klipgat Police Station, drove to Mabopane Police Station for the purpose of charging him. On arrival, they charged him and Warrant Officer Rakuba obtained his warning statement.

[7]          Warrant Officers Ntshabele and Rakuba decided not to release the Plaintiff on warning. He was not taken to court on Monday, 04 April 2016. The Plaintiff thus remained in detention at Mabopane Police Station until he appeared before the Magistrate’s Court in Ga-Rankuwa on Tuesday, 05 April 2016, the second day following his arrest.

[8]          It bears mentioning that the case docket Klipgat CAS 16/04/2016 was assigned to a certain Warrant Officer Sekgororwana for investigation. When the Plaintiff made his first court appearance, he was not recommended for release on bail by the prosecutor, who applied for the postponement of the case for a formal bail application. Consequent thereto the Magistrate remanded the Plaintiff in custody until 18 April 2016 for bail application.

[9]          The Plaintiff was however denied bail on the latter date subsequent to a bail application. The case was thereafter routinely postponed for various reasons on more than 8 (eight) occasions, with the Plaintiff making no fewer than 3 (three) attempts to secure his release by applying for bail, but on each occasion, it was opposed by the prosecution and bail was denied.

[10]        On 17 August 2016 the Plaintiff’s case was transferred to the Regional Court. He appeared there on 13 September 2016, and thereafter on 04, 12,17, 24, 28 and 31 October 2016.

[11]        The Plaintiff remained in detention and appeared again in court on 20 January 2017, 03 March 2017 and finally on 27 March 2017 when his case was withdrawn by the Senior Public Prosecutor, Mr Tebby Thibedi (“Mr Thibedi”). He had been in detention for 11 (eleven) months and 24 (twenty-four) days.

[12]        The chronology of facts set out above constitute unrefuted evidence and are common cause. It is on the said factual backdrop that the Plaintiff instituted the two claims against the Defendants, which are clearly set out in his Particulars of Claim.

[13]        The Plaintiff’s claim for malicious prosecution is, as pleaded, based on the fact that his prosecution was unreasonable and without any reasonable and probable cause. It is also pleaded that the prosecution was malicious and was terminated in his favour when the charge was withdrawn on 27 March 2017, and that at all times material hereto, the members of the prosecution were acting within their course and scope of employment with the second Defendant.

ISSUES FOR DETERMINATION

[14]        The first issue for determination is whether the arrest and subsequent detention of the Plaintiff by Constables Raphuthi and Sekgala was lawful and justified in terms of the provisions of section 40(1)(b) of the Criminal Procedure Act, No 51 of 1997 (“the CPA”). If the impugned conduct was lawful and justified, then there is no delict committed, but if their conduct was wrongful and failed to meet the jurisdictional facts as contemplated by the said statutory provision, the next question is whether the liability of the police for unlawful detention ended when the Plaintiff appeared before court as pleaded by the first Defendant, or continued for the entire period of detention, that is, whether on the facts and evidence, both Constables Raphuthi and Sekgala foresaw that based on their conduct and statements, the Plaintiff would be refused bail, and result in his continued detention at the instance of the court.

[15]        The second issue for determination is whether the second Defendant can also be held liable for the entire period of detention, that is whether factual causation or the so called “but for” test or conditio sine qua non, has been established, and if so, whether the harm suffered by the Plaintiff was sufficiently closely linked to the conduct of the prosecutors who handled the Plaintiff’s case for liability to ensue, that is whether legal causation has, on the facts been established.

[16]        Lastly, this court has to determine whether in light of the contents of the docket, there was any reasonable and probable cause for the prosecutor to have instituted proceedings against the Plaintiff, and as it is the police that set the law in motion, did such conduct amount to instigation of malicious criminal proceedings against the Plaintiff.

[17]        I find it apposite to state that as the arrest and subsequent detention of the Plaintiff constitute unrefuted evidence, it is of paramount importance to examine the principle of causation, both factual and legal, for the purpose of determining liability. In casu, the pleadings play a vital role, particularly the defence pleaded by the Defendants in justification of the arrest, subsequent detention and prolonged incarceration of the Plaintiff whilst awaiting trial. This is significant as it is the pleadings that initiate proceedings. It is trite that the purpose thereof is to define the issues for the other party and the court. In essence, it is the Defendants’ Plea that identifies the legal and factual issues in dispute.

[18]        It is important to mention that at the commencement of these proceedings, it was submitted by Mr Maswanganye, counsel for the Plaintiff, and Mr Chwaro, counsel for the Defendants, that the parties agreed to separate the issues of liability and quantum in terms of the provisions of Rule 33(4) of the Uniform Rules of this Court, which fact is recorded in the pre-trial minutes filed of record.

THE CASE PLEADED BY THE DEFENDANTS

CLAIM A: Unlawful arrest and detention

[19]        The first Defendant’s defence as set out in the Amended Plea to the Plaintiff’s Amended Particulars of Claim in respect of the unlawful arrest and detention is pleaded as follows:

“4.1.  On or about 03 April 2016 police officers Raphuti and Sekgala stationed at Mabopane Police Station received instructions to investigate a tip off/complaint of a firearm being availed to or in possession of children:

4.1.1.       upon investigation the police officers discovered that the Plaintiff has availed a firearm to one Otsile for safekeeping on his behalf;

4.1.2.     he (Mathebula), in turn remunerates the said Otsile for the safekeeping.

4.2.        Police officers Raphuti and Sekgala, thereupon went to the Plaintiff’s residence at Madidi Village to investigate this complaint, accompanied by the said Otsile.

4.3.        The Defendant denies any allegation inconsistent with the above.”

[19]        The first Defendants’ Plea continues as follows:

“5.1.      The Defendant pleads that the police officers arrested the Plaintiff in terms of s 40(1)(b) of the CPA (the Act) based on:

5.1.1.         the Plaintiff had committed an offence in the presence of the police officers; alternatively

5.1.2.         the police officers had a reasonable suspicion that the Plaintiff had committed an offence referred to in schedule 1 of the Act, in respect of which punishment may be a period of imprisonment exceeding six months without the option of a fine in the circumstances outlined in the next paragraphs;

5.1.3.         the peace officers received a radio instruction to investigate a tip off/complainant of a firearm being availed to or in possession of children at Bheki Section, Unit R;

5.1.4.         at that address one Mrs Tlhoaele confirmed that her daughter Precious and her friends who were minor children had been in possession of a firearm or had a firearm availed to them;

5.1.5.         the police officers interviewed Precious, Thabiso, Polo and Lebohang who informed them that the firearm was availed to them by one Otsile Moeng of 950 Klipgat New Stand;

5.1.6.         the police officers went to Otsile’s place of abode where they interviewed him;

5.1.7.         Otsile confirmed that he, including the minor children had been in possession of a firearm which was availed to him by the Plaintiff for safekeeping;

5.1.8.         Otsile took the police officers to the Plaintiff’s place of abode at no 1442 Block E Madidi Village;

5.1.9.         at the Plaintiff’s place of abode:

5.1.9.1.           they explained the purpose of their visit;

5.1.9.2.           the Plaintiff denied knowledge of possession of any firearm, in particular the firearm allegedly availed to the minor children;

5.1.9.3.           the plaintiff invited, alternatively, permitted the police officers to search the premises including the yard, the house and a motor vehicle Toyota Corolla with registration numbers TSN 268 GP that was inside the yard;

5.1.9.4.           in the house the police officers discovered dagga;

5.1.9.5.           in the car the police discovered a firearm, to wit: a pistol 9mm pistol, 522 calibre, Luger with one live round;

5.1.9.6.           the police officers after informing him of his constitutional rights arrested the Plaintiff for unlawful possession of a firearm and dagga.

5.2.        The police officers took him to Klipgat Police Station where he was detained.

5.3.        The Plaintiff made his first appearance at the Ga-Rankuwa Magistrates Court on the 05 April 2016 where his case was postponed for bail application.

5.4.        The Defendant denies any allegation inconsistent with the above.

5.5.        In the event that the court finds that the abovementioned arrest and detention was unlawful, and only in that event the Defendant pleads that:

5.5.1.         the duration of such arrest was from 03 April 2016 at 20:00 to 05 April 2016 when his matter got postponed for bail application; and

5.5.2.         the magistrate authorised further detention of the Plaintiff.”

CLAIM B: Malicious prosecution

[21]        The Plea in respect of the claim for Malicious prosecution against the second Defendant  as with the first claim, is more detailed and sets out what occurred from the date on which the Plaintiff appeared before the Magistrate’s Court on 05 April 2016, and on each of the dates that the Plaintiff appeared before court.

[22]        It is further pleaded that the charge against the Plaintiff was withdrawn on 27 March 2017. In the circumstances, I shall only make reference to the relevant portions of the plea, which are as follows:

“15.1. The Defendant pleads that:

15.1.1.       the charges against the Plaintiff were not malicious but in terms of section 20 of the National Prosecuting Authority Act, No 32 of 1998;

15.1.2.       the employees of the second Defendant working with the members of the first Defendant investigated the case of possession of unlicensed firearm and dagga against the Plaintiff and there were reasonable grounds that the Plaintiff had committed the offences;

15.1.3.       the members of the second Defendant have been of the view that there were reasonable prospects of success in the case;

15.1.4.       the second Defendant formulated charges against the Plaintiff on the strength of Otsile’s statements together with the evidence that was found in his premises;

15.1.5.       the Defendant denies any allegation inconsistent with the above.”

[23]        According to Erasmus: Superior Court Practice, service 10, 2019,[1] a defence that is pleaded by the Defendant must be proven by evidence. In casu, an arrest and detention is prima facie wrongful and unlawful, and it is therefore for the first Defendant to prove the lawfulness thereof.[2]

[24]        It is trite that the first Defendant was therefore required to commence in adducing evidence to prove the facts pleaded in justification of the arrest and detention. Likewise, the onus of proving the elements of the delict of malicious prosecution rests upon the Plaintiff.

THE FIRST DEFENDANT’S CASE

[25]        The first witness who testified was Constable Raphuthi. His evidence was as follows:

25.1.       he was on patrol duty with Constable Sekgala when they received a message that a certain Mrs Tlhoaele had reported that her daughter Princess and some children were playing with a firearm. He could however not remember whether they received the message through police radio or their cellular phones. They immediately drove to the address where Mrs Tlhoaele was reported to be, at Bheki residential area bordering Klipgat;

25.2.       on arrival there they found the said Mrs Tlhoaele, and they interviewed her and Princess. The latter informed them that the firearm was brought by a boy named Otsile. They then instructed her to show them where Otsile resides. She complied and they proceeded to Otsile’s home in Klipgat;

25.3.       on arrival at Otsile’s home, they interviewed him, but he told them that the firearm was with the Plaintiff. They instructed Otsile to show them the Plaintiff’s home. He left with Constable Sekgala and Otsile, who directed them to the Plaintiff’s house, in Madidi Village;

25.4.       on arrival at the Plaintiff’s house they introduced themselves to the Plaintiff and explained that they were there to look for a firearm. The Plaintiff responded that he knew nothing about a firearm. They then sought his permission to search the house. In the Plaintiff’s bedroom he found a small plastic bag containing dagga, but did not find any firearm. They then went outside, with the Plaintiff walking behind him. He went to a Toyota Corolla motor vehicle parked in the Plaintiff’s premises. It was not locked and he opened the front passenger door thereof. He found a firearm underneath the front passenger seat. Otsile was with them. He asked the Plaintiff if he had a licence to possess it, but he replied that he knew nothing about the said firearm. He then arrested him for possession of an unlicensed firearm.

25.5.       he and Constable Sekgala drove to Klipgat Police Station with the Plaintiff, where they registered a case docket of possession of an unlicensed firearm against the Plaintiff. He handed the exhibits to one Warrant Officer Motsepe who registered the firearm in the SAP 13 register of exhibits. They then proceeded to Mabopane Police Station in Gauteng where they detained the Plaintiff.

25.6.       the credibility of Constable Raphuthi was questioned by Plaintiff’s counsel, Mr Maswanganye regarding the following contradictions:

25.6.1.   his evidence in chief is that Otsile showed him and Sekgala the Plaintiff’s residence, as he had told them that the Plaintiff had the firearm that the children were reported to have been playing with. It was put to him, that this was contradictory to what is pleaded in paragraphs 4.1.1; 4.1.2 and 4.2 of the Amended Plea, which state that it is the Plaintiff who availed the firearm to Otsile for safekeeping, and he in turn remunerates him for doing so. He was unable to furnish any explanation for this material contradiction.

25.6.2.          he admitted that it was Otsile who was in possession of a firearm which he gave to the children, which fact made him a suspect in terms of section 117 of the Firearms Control Act, 2000, No. and not the Plaintiff. He could not furnish any explanation for not arresting him. In trying to clarify this contradiction he testified that Otsile had told him that Smuts (referring to the Plaintiff), had given him the firearm for hire, and that it seemed like there was an exchange. He could however not state what exchange it was that he was referring to. On this testimony, the Plaintiff’s counsel put it to him that there was a difference in meaning between the word “hire” and “safe keeping,” but he still had no explanation for this material contradiction.

25.6.3.          Constable Raphuthi testified under further cross-examination that he did not engage the services of the police from Klipgat Police Station, who had jurisdiction to work in the area of the Plaintiff’s village, as Otsile had told him he did not trust the police there. He conceded that despite being a trained police officer who was conversant with the applicable procedures and protocol to be followed by him, he accepted Otsile’s statement about his mistrust for the police at Klipgat.

25.6.4.          he further testified that from the house he went to the unlocked motor vehicle on his own, with the Plaintiff walking behind him, opened the front door and that after finding the firearm under the passenger seat, he handled it with his bare hands, when he was not supposed to have done so, particularly as the fingerprints of the person who last handled it would probably still be there. He had to contact experts from the Local Criminal Record Centre (“the LCRC”), who would have uplifted fingerprints from the firearm. He conceded that he acted contrary to approved procedure for handling the firearm.

25.6.5.          he further conceded under cross-examination that there was no reason for him to have rushed in handling a crucial exhibit such as a firearm without precaution, instead of waiting for police officers from the LCRC as the fingerprint evidence had to be preserved. He somersaulted and testified that he called the Klipgat Police, but they gave him problems, and that the nearest LCRC was in Ga-Rankuwa, in Gauteng, which has no jurisdiction to work in Madidi. This fact he admitted, was also not mentioned in his and Constable Sekgala’s statement contained in the police docket. He admitted it was new evidence.

25.6.6.          on being cross-examined further on why he elected to go directly to an unlocked motor vehicle in the premises, instead of searching the Plaintiff’s BMW sedan which was parked in his garage, his response was that he did not search the garage, and he does not remember seeing a motor vehicle there.

25.6.7.          Constable Raphuthi was not consistent in his evidence for arresting the Plaintiff in another jurisdiction. He retracted his evidence that he was aware that he had to follow protocol by contacting the police authorities at the Klipgat Police Station, prior to arresting the Plaintiff in their area of jurisdiction. He testified that he was not aware of any law that restricts him from arresting suspects outside the area of jurisdiction of Mabopane Police Station, where he was stationed.

[26]        Warrant Officer Ntshabele was the second witness who testified in relation to the first claim. He testified that:

26.1.       on 04 April 2016 he reported on duty in the morning and found the case docket opened for the Plaintiff. In the afternoon he left for Mabopane Police Station with Warrant Officer Rakuba in order to charge him. On arrival in Mabopane he charged him, but did not recommend any bail for him as he was aware that the Plaintiff was a parolee, and was charged with a serious offence. The other reason furnished by him for not recommending bail was that he did not want to endanger the life of Otsile, who was a witness. His involvement in the case ended that day.

26.2.       under cross-examination, he admitted that he did not see any dagga, nor was any recorded in the SAP 13 register of exhibits, but he noticed that it was written on the outside of the back cover of the docket that dagga was found.

26.3.       he testified that he had read the statement of Otsile Moeng, which was obtained and commissioned by his colleague, Warrant Officer Rakuba. He admitted that the contents of the said statement were contradictory to the evidence of Constable Raphuthi and the pleaded defence of the first Defendant. He could not explain the contradictory versions set out in the plea, which states that the Plaintiff gave Otsile the firearm for safe-keeping, and that he (the Plaintiff) in turn remunerates him for doing so; the second version being that in the statement of Otsile which states that he gave the Plaintiff the firearm at his house, which he stole from his grandmother’s house, where it was kept on top of the wardrobe , inside the box of a “DVD”, and that the Plaintiff gave him R500.00 (five hundred rand) for that, and told him to put the firearm under the front passenger seat of the unlocked car in his premises; the third version being the evidence of Constable Raphuthi, who testified that Otsile had given the firearm to the children who played with it; and the fourth version being that contained in Constable Raphuthi’s own statement, wherein he states that Otsile told him the Plaintiff borrowed him the firearm.

26.4.       when further cross-examined on whether he did investigate the origin of the firearm before charging the Plaintiff, based in Otsile’s own self-incriminating statement, his answer was evasive. He testified that the firearm was a family matter as it was stolen by Otsile at his grandmother’s house, and his uncle was the licensed owner thereof. He added that Otsile and the Plaintiff are related. He conceded to Plaintiff’s counsel that failure to keep a licensed firearm in a secure safe is a statutory offence. He could however not furnish any explanation for not charging the lawful owner of the firearm in terms of the Firearms Control Act, despite knowing his identity, and that it is a criminal offence not to keep it in a secured safe.

[27]        Warrant Officer Rakuba was the last witness who testified in respect of the first claim. His evidence echoed that of Warrant Officer Ntshabele. He testified that:

27.1.       he has been on retirement since 2017, and his evidence echoed that of Warrant Officer Ntshabele regarding the steps they took after they got the docket at the charge office on the morning of 04 April 2016.

27.2.       On 04 April 2016 he travelled to Mabopane Police Station with Warrant Officer Ntshabele, and obtained the warning statement of the Plaintiff after charging him with possession of an unlicensed firearm and dagga. He did not recommend bail for him because he knew he was a parolee. He had seen him before, as he worked at Klipgat Police Station for 31 (thirty-one) years and 10 (ten) months before going on retirement in 2017.

27.3.       he testified under cross-examination that when he approached the Plaintiff, he had already made up his mind that he was going to charge him, based on the statements of Otsile and Constables Raphuthi and Sekgala. In further cross-examination, Mr Maswanganye referred him to Constable Raphuthi’s statement from which he read to him what Otsile had told him, and asked if the statement correlated with that of Otsile. The relevant part of Constable Raphuthi’s statement was quoted to him. It stated:  

“On our arrival Mrs Tlhoaele alleged that her daughter’s friends were in possession of a firearm. I interviewed her daughter Princess, her friends Thabiso, Polo and Lebogang, who said that Otsile Moeng of 980 Klipgat New Stand had a firearm. We proceeded there and found him. He alleged that Smuts of Madidi had borrowed him the firearm. He further told us where he kept his firearms.

We went to his place (Smuts) and search (sic) the places where Otsile said the firearms are kept …”

He could not explain the glaring contradictions.

27.4.       he further testified that he charged the Plaintiff because he was already arrested, and Constables Raphuthi and Sekgala had stated in their statements that they found the firearm in his car, not on him.

THE PLAINTIFF’S CASE

[28]      The Plaintiff was the sole witness. He testified that:  

28.1.       on the evening of 03 April 2016, he was at his tavern business which is adjacent to the main house in Madidi Village where he resides. He heard the bell of the gate ringing. The gate was locked and is remote controlled. He saw two police officers and a boy there.  He then opened the gate for them. Upon entry they handcuffed him and told him they were looking for a firearm. He replied that he knew nothing about it. There were two men playing snooker in the tavern, apart from the Plaintiff.

28.2.       the two policemen searched the house and whilst the other was still busy searching, the other one went outside the house. He was still inside the house with the other police officer when he heard the one outside shouting that he found the firearm.

28.3.       he testified that nothing was found inside the house. He denied that dagga was found in his house. It is the police officer that he later identified as Constable Raphuthi, who shouted he found a firearm under the front passenger seat of the car which was parked in the premises. He was with the boy who came with them. The car was not locked and had been left there some months before by patrons who had come to drink and enjoy themselves at his tavern. However, the car engine could not switch on when they tried to drive away. They left it there, under a tree and it was not locked. They left with the car keys. He had no control over the car.

28.4.       when the said people did not come back to fix the car and drive it away, he went to the Klipgat Police Station to report that. The police circulated the car on the police computer system and established that it was not stolen. He never at any stage admitted ownership of the vehicle to Constable Raphuthi.

28.5.       his BMW sedan was parked in his garage, but neither Constable Raphuthi nor the other policeman went to search it or the garage. They drove with him to Klipgat Police Station where they registered a docket of possession of an unlicensed firearm and ammunition that night. His rights were explained to him by the other policeman who was with Constable Raphuthi and he declined to make a statement.

28.6.       from Klipgat Police Station he was transported to Mabopane Police Station where he was detained. On the afternoon of 04 April 2016, two other police officers came to Mabopane Police Station and charged him. He appeared in court in Ga-Rankuwa on 05 April 2016. He was thereafter detained at Kgosi Mampuru Correctional Services Centre in Pretoria, for the entire period of his incarceration.

28.7.       he suffered from uncontrollable hypertension and was treated in prison. This was after he was informed that his house had been burnt down.

28.8.       he was denied bail until the case was withdrawn on 27 March 2017. He was never granted bail on 24 October 2016 as recorded, nor informed that it had been granted.

28.9.       when he applied for bail, he had legal representation provided by the Legal Aid Board. His applications were always opposed by the state and were unsuccessful. The prosecution was at all times aware that Otsile had made a statement wherein he implicated himself that he stole the firearm from his grandmother’s house. The prosecution was also aware of the statement of Constable Raphuthi, contained in the case docket, wherein he (Raphuthi) states that Otsile told him that he (Plaintiff) had borrowed him the firearm, and he knew where he kept his firearms.

28.10.    the Plaintiff testified that he was deeply hurt because he does not know why he was detained. He concluded that the police constables had maliciously planned his arrest and detention as he was handcuffed immediately after they gained entry into his premises, together with Otsile.

28.11.     under cross-examination by defence counsel he testified that he never had access nor control over the Toyota Corolla, which had been in his premises for about 3 (three) months after its owner left it there.

28.12.    he further admitted that he knew Otsile, and that his father Peter told him that he (Otsile) stole his firearm. He did not know Constables Raphuthi and Sekgala before his arrest. He was not aware that the case was reinstated.

[29]        Mr Thibedi was the witness for the second Defendant. He testified that:

29.1.       he is the Senior Public Prosecutor (“SPP”) at Ga-Rankuwa Magistrate’s Court. At the time of the institution of criminal proceedings against the Plaintiff on 05 April 2016 he was not based at that court. He however established that the charges were formulated on the strength of Otsile’s statement and the evidence found at the Plaintiff’s premises.

29.2.       he withdrew the charges against the Plaintiff due to what he referred to as “a break in the evidence between the Plaintiff and Otsile” after the police docket was brought to his attention by one Mr Motiang, a Public Prosecutor and Constable Raphuthi. After perusal of the contents of the docket he referred it back to the police for further investigation, after he wrote on the front cover of the docket the following: “Withdrawn by PP – Lack of evidence.”

29.3.              he did not instruct the police to charge Otsile for possession of an unlicensed firearm. He has decided to reinstate the charges against the Plaintiff.

29.4.              under cross-examination by Plaintiff’s counsel, he admitted that the licensed owner of the firearm stolen by Otsile was a certain Mr Peter Nkomo, referred to as a family member of Otsile. He also admitted that the statement of Mr William Mphahlele, the registered owner of the motor vehicle from which the firearm was found, as testified by Constable Raphuthi, is contained in the police docket. The said motor vehicle was not reported stolen and according to him (Mphahlele), he had exchanged it for a Nissan 1400 van with a Zimbabwean national named Bester.

29.5.             he admitted under further cross-examination that according to the statements in the docket, when the two police Constables Raphuthi and Sekgala went to the Plaintiff’s house, Otsile had already implicated himself that he was in possession of the firearm, which the Plaintiff had lent to him. Furthermore, he conceded that the firearm was not correctly handled by Constable Raphuthi, as fingerprints had to be uplifted.

29.6.       he further admitted that despite the self-incriminating statement of Otsile, he has notinstructed the police to charge him. He testified that that does not mean that he will not in future do so.

29.7.       he further testified under cross-examination that the police issued an instruction that the firearm should be destroyed, and that he never wrote any instruction in the Investigation diary in the police docket that the case be investigated further after he withdrew it. He nevertheless decided to reinstate the charge against the Plaintiff more than two years after he withdrew it, and that he is satisfied that the state might get a conviction against the Plaintiff. He testified that his decision was taken after he became aware that Constable Raphuthi was required to testify in the current civil proceedings in April 2019. He further added that there is a subpoena that has been issued for the Plaintiff to appear in court on the same charge on 19 November 2019. Under further cross-examination, he testified that he was not certain on what charges the Plaintiff would be arraigned, but he was of the view that it could be one of the provisions of the Firearms Control Act, from sections 120 to 129 thereof.

SUBMISSIONS OF THE PARTIES

[30]        Mr Chwaro, contended that the jurisdictional facts for a section 40(1)(b) defence pertaining to an arrest were satisfied in casu in that:

30.1.       the arrestors were peace officers;

30.2.       they entertained a suspicion;

30.3.       the suspicion was that the Plaintiff had committed an offence referred to in schedule 1; and

30.4.       the suspicion rested on reasonable grounds.

[31]        In that regard he referred this court to the cases of Duncan v Minister of Law and Order 1986(2) SA 805 (A) at 818 H – I; Mabona & Another v Minister of Law and Order and Others 1988(2) SA 654 (SE) at 658 E – H; Minister of Safety and Security v Sekhoto and Another 2011(1) SACR 315 (SCA) at para 39 and National Commissioner of Police and Another v Coetzee 2013(1) SACR 358 (SCA) at para 14.

[32]        With regard to unlawful detention, he relied on the cases of Minister of Police and Another v Zweni SAFFLI [2018] ZASCA 97 at para 10 and Sekhoto supra, where it was held that the arrested person’s detention after his first appearance in court is at the instance of the Magistrate, as the authority to detain the accused is within the discretion of the court.

[33]        Mr Maswanganye, in his contention that the arrest of the Plaintiff without a warrant was irrational, arbitrary, not justified and was therefore wrongful and unlawful, referred this court to the case of Sekhoto supra, where the SCA held that “peace officers are entitled to use their discretion as they see fit provided they stay within the bounds of rationality.” He further referred this court to the case of Minister of Law and Order v Hurley supra, where it was held that the onus lies on the peace officer who made the arrest in issue to prove that he acted lawfully and within the powers of arrest conferred upon him by the enabling statute, in  casu section 40(1)(b) of the CPA.

[34]        On the issue of unlawful detention, Mr Maswanganye referred this court to the case of Minister of Safety and Security v Ndlovu 2013(1) SACR 339 (SCA), where the SCA held that in a claim for damages for unlawful detention following unlawful arrest, the unlawfulness of the conduct of the police does not cease when the accused is brought before a reception court which remands him in custody, without enquiring whether it is in the interests of justice to detain him further. He argued that the police in the Ndlovu case were held liable for the detention of the accused after the remand decisions, that is judicial detention.

[35]        On malicious prosecution, he relied on the case of Mvu v Minister of Safety and Security & Another 2009(2) SACR 291 (GSJ), where the court held that in order for the Plaintiff to succeed with his claim for malicious prosecution, he needed only to establish (a) lack of reasonable and probable cause, and (b) intention to injure. Mr Maswanganye further contended that in the case of Singatha and Another v Minister of Police and Another [2015] ZAECBHC 19 (judgment handed down on 26 March 2015), SAFLII, the court held that a prosecutor may not act arbitrarily. He must act with objectivity and in the public interest. He must pay attention to the contents of the docket, and that in failing to do so, he would be failing in his duty to the court.

[36]        In conclusion, Mr Maswanganye submitted that in light of the aforegoing legal authorities, and the fact that the prosecution was terminated in Plaintiff’s favour for lack of evidence, the Plaintiff managed to discharge the onus of proving that the criminal proceedings against him were instituted without any reasonable and probable cause, were malicious and that the institution thereof was done with the intention to injure him. As such, the Plaintiff had proven on a balance of probabilities, his claim.

CONSTITUTIONAL FRAMEWORK

[37]        The Constitution of the Republic of South Africa Act, No. 108 of 1996 (“the Constitution”) is the supreme law of this country. It provides that South Africa is a constitutional democracy founded on, amongst others, human dignity, the achievement of equality and the advancement of human rights and freedoms.

[38]        Chapter 2 of the Constitution embodies the Bill of Rights, which applies to all law, and binds the legislature, the executive, the judiciary and all organs of the state. The paramount provisions more relevant to this case are sections 9, 12 and 35. Section 9, guarantees everyone the right to equal protection and benefit of the law, which includes the full and equal enjoyment of all rights and freedoms. Section 12(1) thereof guarantees the right to freedom and security of the person (emphasis). It provides:

“Freedom and security of the person

12.(1)    Everyone has the right to freedom and security of the person, which includes the right –

a)        not to be deprived of freedom arbitrarily;

b)        not to be detained without trial;

c)         to be free from all forms of violence from either public or private sources;

d)        not to be tortured in any way; and

e)        not to be treated or punished in a cruel, inhuman or degrading way” 

[39]        Equally important is section 35(1), which outlines the rights of arrested, detained and accused persons.  It provides that a person arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions (subsection (f)). Subsection (3)(d) guarantees an accused person the right to have their trial begin and conclude without unreasonable delay.

[40]        The aforegoing constitutional guarantees are aimed at ensuring that none of the organs of state nor any of the arms of government may, under any circumstances, act in total disregard thereof or infringe them without impunity.

[41]        The first Defendant is a member of the executive, and the second is an organ of state as contemplated in chapter 2 of the Bill of Rights. They are both vicariously liable for the acts of persons in their employ, committed during the course and scope of their employment.

Liability of the police for Unlawful arrest

[42]        Section 40(1)(b) of the CPA provides:

“40(1) A peace officer may, without a warrant arrest any person–

(a)               

(b)       whom he reasonably suspects of having committed an offence referred to in schedule 1, other than the offences of escaping from lawful custody.”

[43]        The crucial fact for the determination of the liability of the police herein, is whether there was any justification for the arrest, in light of the statement made by Otsile which is contained in the police docket, and which was properly discovered to the Plaintiff in terms of Rule 35. In addition thereto, the contradictory versions in the evidence before this court are crucial for such determination.

43.1.       The first is that set out in the Plea, that is that the Plaintiff availed the firearm to Otsile for safekeeping, and he (the Plaintiff) in turn remunerates him for the safekeeping.

43.2.       The second version is that presented by Constable Raphuthi under cross-examination by Mr Maswanganye, when he testified that Otsile told him that the Plaintiff gave him the firearm “for hire, and there was an exchange for that.”

43.3.       The third version is that testified by Constable Raphuthi in this court, that Otsile indicated to him and Constable Sekgala that the Plaintiff was in possession of a firearm which he stole from his grandmother’s house, and for which the Plaintiff gave him an amount of R500,00 (five hundred rand), and told him to put it under the front passenger seat of the car parked in his premises. This is contained in the statement of Otsile.

43.4.       The fourth version is that contained in the statement of Constable Raphuthi, which states that on arrival at Otsile’s home, he told them that “Smuts of Madidi had borrowed him the firearm,” and he told them where he keeps his firearms. On this statement, it is clear that it is Otsile who put the firearm under the front passenger seat of the unlocked motor vehicle, and not the Plaintiff.

[44]        The different versions referred to above are clearly contradictory and inconsistent, and could clearly never have given rise to a reasonable suspicion that the Plaintiff had committed an offence, at least on the version of Otsile, which led to the arrest.

[45]        There could also not have been any rationality or justification for the arrest. The legal principles enunciated in the judgment of Sekhoto and Zweni, supra, find application herein, that is, that the onus lies on the peace officer (Raphuthi) who makes the arrest to prove that he acted within the power in section 40(1)(b), and that the police officer must stay within the bounds of rationality, which was absent in this case. In this instance, the contentions of Mr Chwaro that the two constables met the jurisdictional requirements in section 40(1)(b), cannot stand and I reject them in toto.

 [46]       I pause to mention that on the evidence, the conduct of the two constables was clearly reprehensible and deplorable. They acted in an arbitrary manner in arresting the Plaintiff, outside their area of jurisdiction, in another province and went on to contaminate evidence by handling the firearm. It appears that the two constables had an ulterior motive for arresting the Plaintiff, and this appears from Constable Raphuthi’s own evidence that Otsile, a young scholar, that he did not trust the police at Klipgat, hence he elected to traverse onto the jurisdiction of the Klipgat police without informing the authorities there. There was also no rationale for him to hastily handle the firearm with his bare hands. Furthermore, I am of the view that Constable Raphuthi deliberately contaminated the fingerprints evidence with the consciousness that the fingerprints of the Plaintiff would never have been found on that firearm.

[47]        I therefore find that the arrest of the Plaintiff by Constables Raphuthi and Sekgala was arbitrary, irrational, wrongful and unlawful. It is their conduct that factually caused the Plaintiff to suffer harm. They had the necessary animus injuriandi, and the harm suffered by the Plaintiff was sufficiently closely linked to their conduct for legal causation to ensue.

Liability of the police for detention at the police station and following the court orders (judicial detention)  

[48]        The first leg of the detention of the Plaintiff by Constables Raphuthi and Sekgala was based on what was reported to them by Otsile, which is contradictory and inconsistent as highlighted above. The detention of the Plaintiff on the night of 03 April 2016 at the instance of Constables Raphuthi and Sekgala was not justified, was wrongful, unlawful and arbitrary. This is so as they established where the Plaintiff conducted his tavern business and resided. The Plaintiff could therefore not have been a flight risk that justified detention. He is an elderly man, born on 12 January 1943, according to his warning statement obtained by Warrant Officer Rakuba which the latter referred to in his evidence. No evidence was adduced by the defence to justify having kept the Plaintiff in detention on the Monday, and for only taken him to court on the second day following his arrest.

[49]        It is also common cause that the second leg of the detention of the Plaintiff commenced on the afternoon of 04 April 2016, when Warrant Officers Ntshabele and Rakuba arrived at Mabopane Police Station to charge him and obtain his warning statement.

[50]        Warrant Officers Ntshabele and Rakuba were fully conscious of the contents of the statement made by Otsile under oath to the latter, which he (Rakuba) also commissioned. They charged the Plaintiff and detained him on the basis of the statement of Otsile. It would therefore be a travesty of justice for this court, not to focus on the contents of the said statement in toto and in full context as it was the rationale for the two to have perpetuated the detention of the Plaintiff. The statement states as follows:

“I Otsile Kamogelo Joseph Moeng state under oath in English that:

I am a black male of 18 yrs old, residing at house no: 950 New Stand, Klipgat with cellphone no: 072 956 9668, a student at Ntolo High School at Madidi Village.

During March month 2016 I was from school at Madidi Village when I met Mr Smuts Mathebula who is well known to me. I then requested money from him. The said Smuts Mathebula asked me that if he gave me money I must give him something for exchange.

I told him that I have found a firearm at my grandmother’s house on top of the wardrobe inside the box of DVD. He then left.

On Saturday 2016/04/02 in the morning I then called Mr Smuts Mathebula on his cellphone and told him that he must come to Klipgat to give me money and I will give him a firearm. By that time I have already took (sic) or stolen that firearm from my grandmother’s house.

The very same day at night at about ± 20h00 I then meet Mr Mathebula on the road at Klipgat next to Motanya’s tavern. I was together with my friend Skimbi who stay in town (sic).

Mr Smuts Mathebula then gave me an amount of five hundred rands R500.00 and by that time I was with him inside his car Toyota Corolla. He then told me to put it under the passenger seat.

Thereafter the said Smuts Mathebula told me not to tell anybody about this firearm because the police come to his place to search (sic). 

I know and understand the contents of this declaration. I have no objection in taking the prescribed oath. I consider the prescribed oath to be binding on my conscience.”

[51]        On the evidence of Warrant Officers Ntshabele and Rakuba, the first Defendant failed to prove on a balance of probabilities, that the deprivation of the Plaintiff’s liberty which is constitutionally guaranteed, was justified and therefore lawful. The first Defendant is therefore vicariously liable for the reprehensible conduct of Warrant Officers Ntshabele and Rakuba in keeping the Plaintiff in detention.

[52]        With regard to the liability of the police for judicial detention, the Concourt, in the case of De Klerk v Minister of Police 2020(1) SACR 1 (CC), in the majority judgment delivered by Theron J, (Moegoeng CJ and Froneman J dissenting), in a case of unlawful arrest and detention, held that the issue is whether the arresting officer at the time of arresting the Plaintiff, foresaw his continued detention, including after his first appearance in court. The Concourt held that the issue to be decided was therefore that of causation, both factual and legal, in order to found liability; and that based on the consciousness of the wrongfulness of the police officers’ conduct, De Klerk’s claim against the police for judicial detention had to succeed. The court concluded that:

“The crucial fact in this matter is that Constable Ndala subjectively foresaw the harm arising from the mechanical remand of the applicant after his first court appearance. She knew that the applicant’s further detention after his first court appearance would be the consequence of her unlawful arrest of him. She reconciled herself with this knowledge in proceeding to arrest him. In addition, she knew that her mere note inside the docket recommending bail would amount to nothing at this first appearance…”[3]

[53]        The issue of liability of the police for judicial detention was also raised in the earlier case of Woji v Minister of Police 2015(1) SACR 409 (SCA). Mr Woji had been lawfully arrested on a charge of robbery. He was remanded in custody at his first appearance before court. At the bail hearing shortly thereafter, the investigating officer untruthfully testified that Mr Woji was clearly identifiable on a video footage of the robbery for which Mr Woji was being detained, which he had viewed. This evidence caused the court to refuse bail. Mr Woji was detained until the prosecutor viewed the footage and saw that Mr Woji could not be identified as one of the robbers, at which point he withdrew the charge. In an action for damages for wrongful detention the SCA held that the investigating officer foresaw the possibility that his untruthful evidence would lead to the refusal of Mr Woji’s application for bail. He subjectively foresaw that his evidence would lead to refusal of bail and he proceeded recklessly to assert it. Thus, the police incurred liability for the wrongful conduct of the investigating officer.[4] The Minister of Police was held liable for the entire period of the judicial detention where the wrongful and culpable conduct of the police had materially influenced the court to remand Mr Woji in custody for 12 (twelve) months.

[54]        I need to also refer to the fairly recent case of Mahlangu and Another v Minister of Police [2020] ZASCA 44 (judgment delivered on 21 April 2020), where the SCA had to decide whether the Respondent, the Minister of Police (“the Minister”), should be held liable for the damages suffered by the Appellants arising from the judicial detention, until the date on which the charges against the first Appellant and the deceased co-accused, who passed away and was substituted by the executor of his estate, were withdrawn and they were then released. The Appellant and the deceased had been arrested without a warrant on four counts of murder by one Lieutenant Mthombeni, based on an inadmissible confession obtained by him. The court held that the inclusion of the inadmissible confession in the docket was the factual cause of the Plaintiff’s judicial detention. Legal causation was only established up to the date when they had an opportunity to apply for bail, but failed to do so. The SCA held as follows:

“Although the lawfulness or otherwise of a court order for an arrested person’s judicial detention depends primarily on the conduct of the prosecutor and/or the magistrate, the police can incur liability for damages due to detained persons being denied their freedom after their appearance before a court, notwithstanding the court having ordered such detention. This occurred on, amongst others, De Klerk and Woji v Minister of Police. It is necessary to discern the applicable principles which resulted in liability in these decisions.”[5]

[55]        The SCA further held that legal liability in delict is limited in accordance with the flexible test for legal causation. The court, in relying on its recent judgment in the case of Nohour and Another v Minister of Justice and Constitutional Development [2020] ZASCA 27 (judgment delivered on 26 March 2020), stated inter alia that:

“In order to prevent the “chilling effect” that delictual liability in such cases may have … such proportionality exercise must be duly carried out and the requirements of foreseeability and the proximity of harm to the action or omission complained of, should be judicially evaluated.

Legal causation entails an enquiry into whether the alleged act … is sufficiently closely linked to the harm for legal liability to ensue … Legal causation is resolved with reference to public policy … The result is that even if conduct is found to have been wrongful (or even negligent, for that matter), a court may still find, for other reasons of public policy, the harm flowing therefrom to have been too remote for the imposition of delictual liability. The traditional tests for determining legal causation (reasonable foreseeability, adequate causation, proximity of the harm etc) remain relevant as subsidiary determinants. These traditional tests should be applied in a flexible manner. They should be tested against considerations of public policy as infused with constitutional values. Insofar as legal causation is concerned, every matter must be determined on its own facts”.[6]

[56]        In this case, the conduct of the four police officers is reprehensible and no doubt untenable. In the premises, I am of the view that all four police officers subjectively foresaw the precise consequence of their conduct, that the Plaintiff would be remanded in custody by the court. They knew and reconciled themselves with the fact that the Plaintiff would be denied bail and be detained further on their recommendation that the Plaintiff should not be released on bail, despite being aware of the statements in the docket. The Plaintiff was therefore denied an opportunity to apply for bail at his first court appearance. The submission of Mr Chwaro that the liability of the police ended when the Plaintiff appeared before court is therefore dismissed.

[57]        I point out that it is not pleaded on the charge sheet that the Plaintiff was granted bail on 24 October 2016, neither was the evidence of the Magistrate or the public prosecutor who handled the case, adduced by the Defendants to the effect that the Plaintiff was granted bail on 24 October 2016. The bail application was made on 17 October 2016, not on 24 October 2016. All that is before this court is the Plaintiff’s evidence that he was never granted bail until the charge against him was withdrawn on 24 March 2017, and nothing to the contrary.

[58]        May I point out that at the commencement of the proceedings, I was referred to the Pre-trial minutes, where the agreement to separate issues of liability and quantum is recorded. It is however not recorded in the Pre-trial minutes that the parties accepted the correctness of the charge sheet or what was recorded therein, or that such would constitute documentary evidence agreed to by the parties. Section 15 of the Civil Proceedings Evidence Act, No. 25 of 1965, provides that:

“It shall not be necessary for any party in any civil proceedings to prove nor shall it be competent for any such party to disprove any fact admitted on the record of such proceedings.”

[59]        In this case, I have no legal basis to admit what is recorded in the charge sheet that the Plaintiff was granted bail on 24 October 2016, or even the correctness of what is recorded therein in the absence of an agreement contemplated in section 15 of the Civil Proceedings Evidence Act. In the premises, the version of the Plaintiff that he was never granted bail, or informed by the court that he had been granted bail, is more probable in the absence of any evidence in rebuttal.

[60]        In the end, I find that the first Defendant is liable for the entire period of the detention of the Plaintiff from 03 April 2016 until 24 March 2017.

Liability of the prosecution for judicial detention

[61]        It is trite law that an interference with personal liberty is prima facie unlawful, and in casu, the prosecution had an onus to adduce evidence that the continued detention of the Plaintiff was, in light of the contents of the police docket, justified. The question that now arises is whether the public prosecutors who handled the police docket on various occasions from 05 April 2016, properly applied their minds to the statements contained in the police docket. If they had done so on the first date on which the Plaintiff appeared before court, then they would have withdrawn the charge against the Plaintiff on that day due to lack of evidence, as Mr Thibedi stated was the reason for his decision on 24 March 2017.

[62]        In the case of Singatha supra, to which I was referred to by Mr Maswanganye, the court stated the following regarding the duty of the public prosecutor:

“On the facts of the present matter I am satisfied that Ntulwana failed in his duty to the court. He did not have regard, or properly apply his mind to what was contained in the police docket and in Exhibit “E”. If he had done so he would have realised that there was no evidence to substantiate a charge of rape and that the evidence implicating the first Plaintiff in murder was very weak. As a consequence of this, the Magistrate proceeded in terms of section 60(11)(a) of the Criminal Procedure Act and determined the continued detention of the Plaintiff in terms thereof. I may add that in the present matter the jurisdictional fact for the application of section 60(11)(a) never existed at all. … In this matter there was no formal charge sheet drawn up informing the Plaintiff of the dates and places of the alleged crimes, … and the particulars of the actions which the state were attributing to them.”[7]

[63]        The court further held that considering the weakness in the case, the tenous nature of the evidence implicating him, the fact that he did not present a flight risk, the Magistrate would in all probability have released the Plaintiff on bail. That rendered the continued detention of the first Plaintiff at the instance of the prosecution unlawful.[8]

[64]        On the facts of this case, it is common cause as I have already indicated, that the Plaintiff was not a flight risk. He is an elderly man who conducted a business of a tavern at his place of residence. Had the public prosecutors applied their minds by studying the statements contained in the police docket, and had they not acted in collaboration with the police, they would have withdrawn the charge against the Plaintiff on his first appearance in court, or recommended his release on bail, instead, bail was constantly denied as the prosecution opposed the granting thereof. The Plaintiff suffered from uncontrollable blood pressure in custody, after learning that his house had been burnt down, and received medical treatment in prison. This fact was not disputed by Mr Chwaro in cross-examination. Despite this, the detention of the Plaintiff was arbitrarily perpetuated by public prosecutors in the employ of the second Defendant by failing the court in their duty to study the statements in the police docket.

[65]        The inevitable conclusion I arrive at is therefore that the Plaintiff was unjustifiably deprived of his liberty, and was detained without any trial for a period of 11 (eleven) months and 24 (twenty-four) days as a result of the public prosecutors’ failure to apply their minds to the contents of the police docket, which clearly indicated that there was no credible evidence against him. Had the public prosecutors done so, they would have withdrawn the charge against the Plaintiff on 05 April 2016.

[66]        In my view, the detention, at the instance of the prosecution, was therefore arbitrary and without just cause. The provisions of section 12(1)(a) and (b) of the Constitution were thus unjustifiably and unreasonably breached. In Zealand v Minister for Justice and Constitutional Development [2008] ZACC 3; 2008 (2) SACR 1 (CC), a similar claim for wrongful detention was considered. The Concourt held that the detention of the Plaintiff for the entire period of his incarceration, including judicial detention, was unlawful in that section 12(1)(a) of the Constitution was unjustifiably violated. The Concourt per Langa CJ in a unanimous judgement, concluded as follows:

            “I can think of no reason why an unjustifiable breach of s12(1)(a) of the Constitution should not be sufficient to establish unlawfulness for the purposes of the Applicant’s delictual action of unlawful or wrongful detention.”[9]

[67]        In the Woji case supra, the SCA, in further applying the ratio decidendi in the Zealand judgment, held that a remand order by a Magistrate does not necessarily render subsequent detention lawful. What matters is whether substantively, there was a just cause for deprivation of liberty.[10]

[68]        In the end I find that factual and legal causation have been established on the part of the second Defendant in relation to the harm suffered by the Plaintiff from 05 April 2016 until 24 March 2017, as the deprivation of the Plaintiff’s liberty was not justifiable.

Liability of the second Defendant for malicious prosecution

[69]        Malicious prosecution is an abuse of the process of the court by intentionally and wrongfully setting the law in motion on a criminal charge.[11] In order to succeed with the claim, the Plaintiff must show:[12]

69.1.       that the Defendant instituted or instigated the proceedings;

69.2.       that the Defendant acted intentionally or with animus iniuriandi;

69.3.       that the Defendant acted without reasonable and probable cause;

69.4.       that the Defendant was actuated by an improper motive or malice;

69.5.       that the proceedings terminated in the Plaintiff’s favour; and

69.6.       that the Plaintiff suffered damage.

[70]     The case of Minister of Justice and Constitutional Development v Moleko 2009 (2) SACR 585 (SCA),[13]  is more relevant in that the SCA reaffirmed the law that a claim for malicious prosecution lies under the actio iniuriandi. It was held that animus iniuriandi means that the prosecuting authority, while being aware of the absence of reasonable grounds for the prosecution, directs his or her will to prosecuting the Plaintiff. If no reasonable grounds exist, but the prosecutor honestly believes either that the Plaintiff is guilty, or that reasonable grounds are present, the second element of animus iniurinadi namely consciousness of wrongfulness, will be lacking.[14] The court further stated the following with regard to the element of animus iniuriandi:

“The Defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (dolus eventualis).”[15]

[71]        At the outset, it is necessary to emphasise  that it is evident that the various public prosecutors who handled the case of the Plaintiff failed to apply their minds to the statements contained in the police  docket, and instead, routinely postponed the case and opposed bail, as I have already made a finding in that regard.

[72]        It is quite evident that the aforesaid public prosecutors elected not to put the charges to the Plaintiff so that he could plead and deal with the evidence adduced by state witnesses, and so get the matter finalised, more so as the statements of the police officers as well as that of Otsile, were already in the police docket on the date of the Plaintiff’s first appearance in court. The identity of the licensed owner of the firearm was also known and identified as a family member of Otsile. No evidence was adduced by the prosecutors or Mr Thibedi regarding the rationale for having not called Mr Peter Nkomo, to whom the firearm was issued and licensed, or Otsile, who stole it from where it was kept at his grandmother’s house. This can only point to malice on the part of the public prosecutor.

[73]        Mr Thibedi testified that he has reinstated the charge against the Plaintiff more than two years after he withdrew it. He could however not indicate on what charges the Plaintiff should again be arraigned. His response under cross-examination by Plaintiff’s counsel was speculative. He testified that the Plaintiff could be charged with any of the provisions of the Firearms Control Act, from sections 120 to 127. It is appalling that being the senior public prosecutor who decided to reinstate the charge, he was speculative regarding the exact charge that the Plaintiff had to be arraigned on. Furthermore, his attention was drawn to the investigation diary in the police docket by the Plaintiff’s counsel, where there are no instructions written by him to reinstate the charge. He was also at pains to explain why he has not instructed the police to charge Otsile, despite his self-incriminating statement, or the licensed owner of the firearm, Mr Peter Nkomo. His response was that he can still charge Otsile in future. This despite the fact that the firearm has now been destroyed. He was therefore not a credible and truthful witness. The contention by Mr Chwaro that the claim should not succeed as the charge has been reinstated cannot stand. The conduct of Mr Thibedi in this instance, being a senior member of the prosecuting authority, which is an organ of state, amounts to an abuse of power which is clearly untenable.

[74]        On this claim, I therefore find that the Plaintiff has, on a balance of probabilities, proven that there was no reasonable and probable cause to institute criminal proceedings against him. The public prosecutor has the necessary animus iniuriandi, and acted with malice. The claim should therefore succeed.

The liability of the police for malicious prosecution

[75]        The Plaintiff’s claim for malicious prosecution is, ex facie the pleadings, directed at the second Defendant. It is however evident from the evidence adduced by him, that he is seeking delictual damages from both Defendants arising from the same unlawful acts of the police and the public prosecutors who handled the case.

[76]        I have already made a determination that the police officers who arrested the Plaintiff, as well as those who charged him and perpetuated his further detention, thus ratifying their unlawful conduct, acted with the full consciousness that there existed no credible evidence against him from the statements in the police docket. There is therefore no doubt that it is the said police officers who set the law in motion and instigated the prosecution of the Plaintiff.

[77]        Having regard to the active role played by the 4 (four) police officers in the prosecution of the Plaintiff, the question that arises is whether this court can mero motu make a finding against the first Defendant in respect of the claim for malicious prosecution when the pleadings are silent on that.

[78]        I pause to mention that it is trite that the importance of pleadings should not be unduly magnified. The court is thus not bound by the pleadings if the parties themselves at the trial enlarge the issues.[16] The issue of pleadings was canvased by the appeal court in the case of Wynberg Municipality v Dyer 1920 AD 443, where an attempt was again made to confine the issue on appeal strictly to the pleadings, but Innes CJ in a unanimous judgment, held that if the issue had been widened in the court below by both parties, the Defendant could not claim to confine the issues within limits which he assisted to enlarge.

[79]        In the case of Shill v Milner 1937 AD 101, which is still valid law, the court of appeal again held as follows:

            “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry. But within those limits the court has wide discretion. For pleadings are made for the court, not the court for pleadings. Where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for the interference by an appellate tribunal merely because the pleading of the opponent has not been as explicit as it might have been.”[17]

[80]        Erasmus: Superior Court Practice supra, in the commentary to Rule 18 of the Uniform Rules of this court, states:

“In this regard the court has a wide discretion. The court must look at the substantial issue between the parties and not blindly follow the ipsissima verba of the pleadings.”[18]

[81]        In casu, both parties are before court, legally represented by two competent counsel. Both counsel had an opportunity to present evidence on both claims and cross-examine thereon.

[82]        Relying on the aforegoing legal authorities, I find that even though the claim for malicious prosecution is not directed at the first Defendant ex facie the pleadings, there is no prejudice to the second Defendant if I entertain the evidence in respect of that claim against the police. I therefore find it appropriate to exercise my judicial discretion to consider the liability of the police in respect of the second claim.

[83]        I am of the view that the evidence before this court is overwhelming against the four police officers. There is no doubt that the criminal proceedings against the Plaintiff were instigated by Constables Raphuthi and Sekgala. The evidence indicates that their unlawful conduct was ratified and perpetuated by Warrant Officers Ntshabele and Rakuba, who happen to be superior to them in ranking. This was an abuse of power which cannot be justified. I cannot find any rational basis for them to escape liability for their unlawful conduct and the humiliation and harm that the Plaintiff suffered during his prolonged incarceration awaiting trial in the absence of any credible evidence against him.

[84]        The issue of the liability of the police for malicious prosecution was fully canvassed by the SCA in the case of Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA). The court in its unanimous judgment delivered by Fourie AJA, stated the following:

“It has often been stressed by our courts, that the duty of a policeman who has arrested a person for the purpose of having him or her prosecuted, is 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. See: Prinsloo and Another v Newman 1975(1) SA 481 (A) at 492G and 495A and Minister for Justice and Constitutional Development v Moleko, supra, at para 11. In Carmichele v Minister of Safety and Security and Another 2001(4) SA 938 (CC) para 63, it was held that the police has a clear duty to bring to the attention of the prosecutor any factors known to them relevant for the exercise by the Magistrate of his discretion to admit a detainee to bail”[19] (own emphasis).

[85]        In my view, the Plaintiff has proven on a balance of probabilities all the elements of the delict of malicious prosecution against the police. The first Defendant is therefore liable for damages arising therefrom.

COSTS

[86]        The basic rule is that the making of a cost order remains in the discretion of the court, which must be exercised judicially. Furthermore, the general rule is that the successful party is normally entitled to an award of costs in his/her favour.[20] It is also a general rule that the absence of bona fides in conducting litigation may constitute a ground for awarding costs on an Attorney and client scale against the party in question. In addition, unreasonableness in the conduct of litigation may lead to an award of Attorney and client costs.[21]

[87]        The leading case on the award of costs on an Attorney and client scale is Nel v Waterberg Landbouwers Ko-operatieve Vereeniging.[22]            There Tindall JA in a unanimous judgment stated that:

            “… by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case may consider it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs, that a successful party will not be out of pocket in respect of the expense caused by the litigation.”[23]

[88]        Cilliers et al, in the book Herbstein and Van Winsen: The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, in elaboration of the grounds for award of such punitive costs, state the following:[24]

            “The grounds upon which the court may order a party to pay an opponent’s Attorney and client costs include the following: that the party has been guilty of dishonesty or fraud or had vexatious, reckless and malicious, or frivolous motives, or committed grave misconduct either in the transaction under inquiry or in the conduct of the case. The court’s discretion to order the payment of Attorney and client costs is not, however, restricted to cases of dishonest, improper or fraudulent conduct: it includes all cases in which special circumstances or considerations justify the granting of such an order;  and includes instances “where the defence was frivolous and was taken for the sole purpose of gaining time.””[25]

[89]        Having regard to the frivolous defence set out in the first Defendant’s plea, which was contradictory to the evidence adduced and the statements contained in the police docket, I am of the view that an award of a punitive costs order against the first Defendant is justified.

[90]        Regarding the second Defendant, the public prosecutors were clearly aware, or should have been aware from the statements in the police docket, that there was no credible evidence justifying the further detention of the Plaintiff whilst awaiting trial. Furthermore, Mr Thibedi was not a truthful and credible witness as I have already found. Despite him having withdrawn the charge against the Plaintiff more than 2 (two) years before he testified in these civil proceedings, he was still audacious to testify that he has reinstated the charge against the Plaintiff, after he became aware in April 2019 that Constable Raphuthi was required to testify in court. The defence of the second Defendant was no doubt frivolous.

[91]        On this basis, I am of the view that the ward of a punitive costs order against the second Defendant is warranted and justified.   

ORDER

[92]        In the end, I make the following order:

1.               The issues of liability and quantum are separated in terms of Rule 33(4).

2.               The issue of quantum is postponed sine die.

3.               The first Defendant is liable for 100% of the proven or agreed damages suffered by the Plaintiff for:

(a)       Unlawful arrest on 03 April 2016;

(b)       Unlawful detention from 03 April 2016 to 24 March 2017;

(c)       Malicious prosecution of the Plaintiff arising from police docket Klipgat CAS 16.04.2016.

4.               The second Defendant is liable for 100% of the proven or agreed damages suffered by the Plaintiff for:

(a)       Unlawful detention of the Plaintiff from 05 April 2016 to 24 March 2017;

(b)       Malicious prosecution of the Plaintiff arising from police docket Klipgat CAS 16.04.2016.

5.     The first and second Defendants are to pay the Plaintiff’s costs of suit on an Attorney and client scale, jointly and severally, the one paying the other to be absolved.

6.       The Registrar of this court is directed to serve this judgment on the following officials, within 7 (seven) days of the granting thereof:

(a)       The North-West Provincial Commissioner of the South African Police Service;

(b)       The Gauteng Provincial Commissioner of the South African Police Service;

(c)       The National Commissioner of the South African Police Service;

(d)       The Director of Public Prosecutions, North-West Province; and

(e)       The National Director of Public Prosecutions.

__________________________

L MONTSHO – MOLOISANE  

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING                                        :29, 30, 31 October 2019  

                                                                          and 05 November 2019

DATE OF JUDGMENT                              :       01 June 2020

COUNSEL FOR THE APPELLANT        :          ADV. MASWANGANYE

Instructed by

R. A Mosweu Attorneys

c/o Mokhetle Attorneys Inc

Golfview, Mahikeng

COUNSEL FOR THE RESPONDENT   :          ADV. K CHWARO

                                                                           Instructed by

                                                                           State Attorney: Mahikeng

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