Bowles v Makana Municipality and Another (CA&R148/2013) [2014] ZAECGHC 31 (17 May 2014)

Bowles v Makana Municipality and Another (CA&R148/2013) [2014] ZAECGHC 31 (17 May 2014)

The magistrate misdirected herself by applying a test of reasonable suspicion rather than the objective requirement under section 40(1)(a) that an offence must be committed in the officer's presence. The evidence presented two mutually destructive versions regarding whether the appellant assaulted or insulted the...

Source-derived case information.

Citation
[2014] ZAECGHC 31
Parties
Appellant: Adrian Ernest Bowles; Respondent: Makana Municipality; Respondent: Terrence Bafo
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
17 May 2014
Case Number
CA&R 148/2013
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court
Outcome
Appeal upheld in respect of wrongful arrest and detention; dismissed in respect of malicious prosecution.
Judges
Hartle, Plasket
Legal Topics
Wrongful Arrest, Malicious Prosecution, Damages Assessment, Onus of Proof, Criminal Procedure Act Section 40, Credibility of Witnesses
Civil Procedure Delict Wrongful Arrest Malicious Prosecution Damages Assessment Onus of Proof Criminal Procedure Act Section 40 Credibility of Witnesses

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Summary, issues, holding and outcome

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Parties

Adrian Ernest Bowles

Appellant

Makana Municipality

Respondent

Terrence Bafo

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court

Legal Issues

  1. 1 Whether the appellant was wrongfully and unlawfully arrested and detained by the second respondent.
  2. 2 Whether the appellant was maliciously prosecuted by the second respondent.
  3. 3 Whether the respondents discharged the onus to prove the lawfulness of the arrest under section 40(1)(a) of the Criminal Procedure Act.

Ratio Decidendi

The magistrate misdirected herself by applying a test of reasonable suspicion rather than the objective requirement under section 40(1)(a) that an offence must be committed in the officer's presence. The evidence presented two mutually destructive versions regarding whether the appellant assaulted or insulted the second respondent. The magistrate failed to assess the credibility of witnesses or the probabilities. On appeal, the court found the probabilities evenly balanced and, applying the correct onus, held that the respondents had not discharged the burden to prove the lawfulness of the arrest and detention. The appellant was entitled to succeed on his claim for wrongful arrest and...

Court Disposition

Appeal upheld in respect of wrongful arrest and detention; dismissed in respect of malicious prosecution.

Orders

  • The appeal is upheld, with costs.
  • The order of the court below is set aside and replaced with the following order: