De beer v Minister of Police and Another (4888/2017) [2019] ZAECGHC 26 (12 March 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 4888/2017

DATE HEARD: 20, 21, and 22/02/2019

DATE DELIVERED: 12/03/2019

In the matter between

DAWID JACOBUS DE BEER

PLAINTIFF

and

MINISTER OF POLICE

1ST DEFENDANT

NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS

2ND DEFENDANT

JUDGMENT

ROBERSON J:-

Introduction

[1] It is common cause in this action that on 16 January 2016 the plaintiff was arrested without a warrant by a member of the South African Police Service on a charge of rape of a minor child, a girl CB. He was detained until he appeared in the Queenstown Magistrate’s Court on 18 January 2016. On that date he was remanded in custody from time to time until his release on bail on 5 February 2016. The charge against him was withdrawn on 26 July 2016.

[2] The plaintiff claims damages from the first defendant for wrongful arrest and detention until his first appearance in court. He claims damages from the second defendant for his further detention from 18 January 2016 until 5 February 2016. He alleged inter alia that the arresting officer, Warrant Officer MO (MO)[1] had acted without critically analysing the information at her disposal, without considering alternative means of securing the plaintiff’s attendance at court and without exercising her discretion properly. His cause of action against the second

defendant was that the prosecutor at the plaintiff’s various appearances in court knew or ought to have known that there was no prima facie case against the plaintiff, that the plaintiff ought to have been released on warning or the charge should have been withdrawn, and that the prosecutor omitted to disclose to the Magistrate the relevant facts relating to bail applications and remands. Effectively, as I understood the allegations against the second defendant, the prosecutor had breached his public law duty not to violate the plaintiff’s right not to deprived of his freedom arbitrarily or without just cause (s 12(1)(a) of the Constitution).

[3] The first defendant pleaded that the plaintiff was lawfully arrested and detained in terms of s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA), there being a reasonable suspicion that he had raped a minor child.

[4] The second defendant pleaded that the prosecutor had perused the witness statements and the J88 form in the police docket and was satisfied that there was a prima facie case against the plaintiff. The offence was one contained in Schedule 6 of the CPA and accordingly a court had to order that the plaintiff be detained in custody unless he adduced evidence which satisfied the court that exceptional circumstances existed which in the interests of justice permitted his release.[2] The second defendant admitted that it had the obligation to place before the court all relevant information, including information

concerning the strength or weakness of the State case and information in the plaintiff’s favour which would be relevant to the granting of bail and the continued prosecution of the plaintiff.

Background and common cause/undisputed facts

[5] In 2014 the plaintiff lived with his mother at number 8 of a certain complex in Queenstown, and still lives there. A social work agency, the CMR, arranged for CB and her grandmother, MB, to live with the plaintiff and his mother from May to July 2014. CB was five years old at the time. CB and MB thereafter moved to number 32 of the same complex, which is 50 to 100 metres away from number 8. In February 2015 CMR reported to MO that there were rumours that CB had been sexually abused. MO interviewed CB but she denied that she had been sexually abused. In January 2016 MO was again contacted by CMR because the allegations had resurfaced. In her statement to MO in January 2016 CB said that at the end of her Grade R year the plaintiff had twice sexually assaulted her by inserting his finger in her private parts and by inserting his penis in her vagina. The complainant said that she had not told anyone before because she was scared and shy and because the plaintiff had threatened that if she told anyone he would know because people would tell him.

[6] At the time of arrest MO had the complainant’s January 2016 statement, MB’s statement of the report the complainant had made to her alleging what the plaintiff had done to her, and the J88 form completed by the forensic nurse who had examined the complainant on 15 January 2016. MO told the forensic nurse that the alleged sexual abuse took place during 2014. The nurse’s conclusions in the J88 form were “Visual genital injuries seen are consistent with sexual abuse” and “Anal injuries seen are consistent with sexual assault with the possibility of penetration”. The gynaecological findings, other than where the words “normal” or “nil” were written, included: pink bruises on the labia majora; scarring of the posterior fourchette; redness of the fossa navicularis; and a remnant of the hymen with bumps and clefts present. The findings of the anal examination included the presence of scars, redness, and bruising of the skin surrounding the orifice, and the presence of a tyre sign on the orifice.

[7] At the plaintiff’s first appearance in court, the prosecutor had at least the complainant’s January 2016 statement, MB’s statement, the J88 form, and MO’s arrest statement in which she inter alia recorded the complainant’s February 2015 denial of sexual abuse. Subsequent to the plaintiff’s arrest, a statement was taken from one Anna Myburgh who stated that during January 2015 CB had reported sexual abuse by the plaintiff. The report expanded on what CB had told MO, and now included anal penetration by the plaintiff.

[8] The record of proceedings in the magistrate’s court from 18 January 2016 to 5 February 2016 was admitted as an exhibit. The plaintiff was at all times represented by a legal aid attorney. On 18 January the legal aid attorney Ms Mtwa said she was to take instructions and the prosecutor informed the court that it was a schedule 6 offence and that the state was not in possession of bail information. The matter was postponed to 21 January for the bail information and Ms Mtwa indicated that the date was suitable. On 21 January the matter was postponed to 25 January for a formal bail application. On 25 January the matter was postponed to 27 January at the request of the plaintiff’s attorney because when she went to the cells to consult with the plaintiff he was not there. He had been at the police station and had suffered a relapse.[3] On 27 January the matter was postponed to 29 January at the request of the plaintiff’s attorney who needed to familiarise himself/herself with documents relating to the plaintiff’s health and had not yet consulted with the plaintiff. On 29 January the investigating officer was not available and the plaintiff’s attorney did not oppose a further postponement. The matter was postponed to 2 February 2016 and on that date was further postponed, to 5 February 2016. There was no indication on the record of the reason for this last postponement. On 2 February 2016 the plaintiff deposed to an affidavit in support of his bail application in which he mentioned inter alia his diabetic condition and an alternative address. There was also an affidavit from the investigating officer, deposed to on 5 February 2016, in which he said that the plaintiff was not a flight risk and had an alternative address. He requested that one of the conditions of bail should be that the plaintiff should not have contact with the victim and other state witnesses. Bail of R500.00 was granted.

[9] It was put to the plaintiff during cross-examination by the second defendant’s counsel, as a fact, that the decision to withdraw the charge was made by a State advocate at the office of the Director of Public Prosecutions, Grahamstown. This decision was made because during consultation with CB she made inconsistent statements.

Evidence

[10] The plaintiff is 43 years old and self-employed as an appliance recycler, working from home. When asked if he had any children he said he was impotent. He testified about an incident which occurred while CB and MB were staying with him and his mother. The sleeping arrangements were that the adult women and CB would sleep in the bedroom and the plaintiff slept on a mattress on the floor of the lounge. There was an interleading door between the rooms. One night CB came to hug him before going to bed, and wanted a goodnight kiss. When she kissed him she put her tongue in his mouth. He was disgusted and pushed her away. CB’s grandmother asked what was happening and when he told her she said that the child was young and did not know any better. After CB and her grandmother moved out they did not visit him again and he had

no interaction with CB during November and December 2014.

[11] According to the plaintiff, MO arrived at his home on 16 January 2016 between 06h00 and 06h30. He did not know who she was and did not know why she was there. She did not introduce herself as a police officer or say why she was there. When she asked him if he knew why she was there he said that there were rumours going around that there were problems with the child. He had heard rumours that one MJ had interfered with CB and one BL had molested her. MO asked him to accompany her to the police station for questioning. At the station he was put in a cell with others and MO left. The plaintiff denied that MO had told him why he was arrested and had explained to him that CB had identified him as the person who had raped her. A police officer, van Schalkwyk, arrived and told him that he was under arrest for the rape of CB. The plaintiff initially thought that MO was the arresting officer and said that it only became clear to him later that van Schalkwyk was the arresting officer. This was before the issue of summons.

[12] He made a statement to van Schalkwyk in which he denied sexually assaulting CB and mentioned the time that she kissed him and his report about this to MB. He was not asked what he had been doing during the period 1 November to 31 December 2014. (The cover of the police docket indicated that the charge was rape of a seven year old female between 1 November and 31 December 2014.) He did not tell van Schalkwyk about the rumours concerning MJ because he did not hear that MJ was under suspicion, and he could not accuse MJ when there were only rumours. He was held in the police cells until 18 January 2016. When he appeared in court he asked the magistrate if he could apply for bail but the prosecutor objected. On his second appearance he was represented by a lawyer. The case was postponed a few times and on each occasion his lawyer applied for bail but it was denied.

[13] There were 25 people in the cell. The single toilet was dirty and not private. The plaintiff is a diabetic and requires an insulin injection twice a day, half an hour before meals. While in the police cells he did not always get the insulin on time. On one occasion his blood sugar was low because a meal was missed and he went into a coma. A paramedic who was called gave him a glass of glucose water. On another occasion he had drunk coffee with sugar and bread with jam and his blood sugar climbed. He did not have enough insulin and he went into a coma. He was taken to hospital and put on a drip. He was not given a special diabetic diet but his mother delivered suitable food for him every day. She also provided fresh clothing.

[14] During cross-examination by counsel for the second defendant, the plaintiff was taken through the record of proceedings in the magistrate’s court (see para [8] above). He agreed he had seen Ms Mtwa at his first appearance and had spent a few minutes with her. He agreed that the postponement from 18 January to 21 January 2016 was by agreement between Ms Mtwa and the prosecutor and that on 21 January the matter was postponed to 25 January for a formal bail application. He agreed that the further postponements on 25 January and 27 January were at his instance and that further postponements were not opposed.

[15] MO testified. CMR used to contact her when they had a case involving an Afrikaans speaking child. Following the report from Ms Suzette du Plooy of CMR in February 2015 that CB had allegedly been raped, MO interviewed CB and MB. MB told her that CB had allegedly been raped but gave no further details. MO spoke to CB and tried to gain her confidence and asked if anyone had done anything to her. CB said that nothing had happened. MO said that she could not force CB to reveal anything and left it there. At this time there was no mention of the name of the alleged perpetrator.

[16] On Tuesday 12 January 2016 MO was called by a social worker at CMR informing her that CB had opened up concerning the rape allegation. On Thursday 14 January she visited CB and MB at their home. MB mentioned an incident involving the plaintiff when CB was younger and would stay with the plaintiff’s mother while MB was at work. MB did not have all the information. MO spoke to CB separately. CB told her there were two occasions when the plaintiff had done inappropriate things and touched her on her private parts. MO needed to deal delicately with CB and told MB that CB should be taken to the rape crisis centre. At this stage CB was not specific. The next day, 15 January 2016, CB was examined by a forensic nurse who told MO that there was evidence of sexual abuse. The nurse showed MO the J88 form and MO asked the nurse what was meant by a tyre sign and the nurse said it was an old injury. MO’s interpretation of the result of the examination was that what CB had told her was true.

[17] On 16 January 2016 MO again interviewed CB in order to ensure that she was consistent. CB told her of two incidents when she was staying with the plaintiff’s mother while MB was at work. The first incident occurred when the plaintiff’s mother left her alone with the plaintiff. The plaintiff had put her on the bed and taken his and her pants off, put his finger in her private parts and put her hand on his private parts. The second incident occurred when they were alone and he had put his penis into her private parts. MO was not sure if it was her vagina or anus or both. She then took a statement from CB which accorded with what she had told her. She also took a statement from MB. According to MB’s statement the plaintiff’s mother used to take care of CB after school until MB came home from work. A neighbour asked her why she left CB with the plaintiff because when CB was alone with the plaintiff he had heard noises coming from the flat. MB thereafter decided to keep CB with her at work after school. CB denied that the plaintiff had ever done anything to her but had told Anna Myburgh that the plaintiff had put his finger in her private parts. Ms du Plooy from CMR was called and

interviewed CB but CB “closed like a book”. On 27 December 2015 CB asked MB if she could tell her something and told MB that the plaintiff had pulled her pants down and hurt her. Later that day when CB’s mother was present, CB reported the same thing. CB was very scared and said that it happened when she stayed with the plaintiff’s mother after school and on two occasions when the plaintiff’s mother had left her alone with the plaintiff when she went to fetch another child.

[18] MO was satisfied that there was a criminal case and at the police station opened a docket and registered the case. She then went to the plaintiff’s home. She denied that the time was 06h00 to 06h30 because she had only taken the statements of CB and MB later that morning. (The plaintiff alleged in his particulars of claim that he had been arrested by MO at 09h00.) MO was in plain clothes and driving a marked police vehicle. She identified herself to the plaintiff and told him that it was alleged that he had raped CB. At the crime office at the station she had a fuller conversation with the plaintiff and told him of the allegations. The plaintiff said he had not done anything. MO informed the plaintiff that she was arresting him on a charge of rape of CB. She was not sure of the exact date and time of the alleged offence but that it was during the time that the plaintiff’s mother left CB alone with the plaintiff. The date on the docket, namely between 1 November and 31 December 2016 was obtained from MB. She took him to the cells where he was detained. At that time van Schalkwyk was not at the police station, although later when MO was shown the warning statement taken by van Schalkwyk on 16 January 2016, she said that she had not seen him.

[19] Her reasons for arresting the plaintiff were: that it was a very serious offence; that CB had identified the plaintiff; that CB had been consistent every time she interviewed her; that CB and the plaintiff lived in close proximity; that CB had said the plaintiff had threatened that if she told anyone what had happened, he would know because those people would tell him; and the J88 contents. MO wanted to protect CB. She did consider the previous denial by CB that anything had happened but took into account that CB was a young child and because of the threat was scared. She said that she interviewed CB more than once to ensure that she was consistent, before taking her written statement. When it was put to MO in cross-examination that she knew in 2016 that CB was unreliable because of her previous denial, MO said that the conflicting statements from CB did not mean that she was unreliable. She herself, that is MO, had been molested when she was ten years old and did not tell anyone because she had been threatened by the perpetrator. She only reported what had happened when she was twelve years old and had moved to another town. She said that she had put herself in CB’s shoes, that children think differently and have a different mindset, and that maybe CB had previously denied that anything had happened because she was scared, just as she, MO, had been scared. She denied that she had been subjective and had arrested the plaintiff because of her own experience.

[20] In her arrest statement MO said that MB had told her that CB had “finally” confirmed that she had been hurt by the plaintiff. It was put to her that this suggested that the child had been repeatedly cross-examined and suggestions had been put to her. MO said that she did not interpret what had been conveyed to her in this way and that her interpretation was that since 2015 there was information now available.

[21] MO said that she had done the basic investigation and that it was for the investigating officer to conduct a thorough investigation. By that she meant that all other witness statements were to be obtained. She said that there were outstanding statements, such as that of Anna Myburgh whom CB had told of the incidents. She said if she had had Anna Myburgh’s statement at the time she would not have arrested the plaintiff but that she did not know about Anna at that time. MO agreed that further statements she took from CB in June 2016, at the request of the investigating officer, were contradictory.

[22] When asked in cross-examination why she had not taken a full statement from the plaintiff MO said that the plaintiff had denied doing anything and that he had the right to remain silent. She thought it was reasonable to arrest him with the information which she had.

[23] It was put to MO in cross-examination that the observation in the J88 of redness, bruises and swelling indicated recent injuries. She said she did not have the knowledge to comment but said that the nurse had said that the tyre sign was an old injury. The nurse did not say how old it was. MO said that the contents of the J88 on which she relied were the conclusions of the nurse and the tyre sign, which the nurse had explained was an old injury.

[24] It was put further to MO in cross-examination that the arrest of the plaintiff was not urgent and that she had plenty of time to find out the true facts. MO agreed that there was no allegation of a recent offence but said that the threat would have been triggered when CB told what had happened to her. She agreed that she knew that the plaintiff lived in Queenstown and that she could have obtained the information that he lived with his mother.

[25] The prosecutor who represented the State at the plaintiff’s first appearance in court was Mr Thanduxolo Soga. He testified that he did not have an independent recollection of the case and he referred to the contents of the police docket. He received the docket on 18 January 2016 and read the witness statements which were in the docket. Some of the statements he said were in the docket could not have been there because they were taken at a later stage, for example a statement taken from CB in June 2016, and Anna Myburgh’s statement. However it was not in dispute that he had CB’s and MB’s statements taken on 16 January 2016, the J88, MO’s arrest statement, and the plaintiff’s warning statement. Soga was convinced there was a prima facie case. He had the victim’s statement in which she identified the alleged perpetrator, the “first report” statement, and the J88, the contents of which were consistent with what the victim had alleged, namely vaginal and anal abuse. With regard to the identification of the plaintiff by CB, Soga said that there was no uncertainty about the identification because CB had mentioned the plaintiff’s name and they lived near one another. If there had been no prima facie case he would have declined to prosecute the plaintiff. Because this was a schedule 6 offence it was necessary for the plaintiff to bring a formal bail application. The main reason why Soga opposed bail was because the plaintiff knew the identity of CB and lived close by.

[26] Soga drew up the charge sheet from the information available to him in the docket. The charge sheet alleged that the plaintiff had raped CB by having sexual intercourse with her more than once in 2014.

[27] Soga was aware of CB’s earlier denial of abuse as contained in MO’s arrest statement but said that that such an occurrence is not unusual where children are concerned and that CB’s reason for not revealing what had happened was because she was scared. Soga did not think that there was a problem because CB had reported the abuse to MB and what she had told MO was consistent with what she had told others.

[28] When asked about the apparent fresh injuries recorded in the J88, he said that he did not know if the injuries recorded were fresh or old and that the expert is usually called to explain the injuries. It was not his call to make. He did not think it was necessary for the magistrate to know that the medical examination was conducted in 2016 while the alleged offence took place in 2014.

[29] When it was put to Soga that he had a duty to tell the magistrate about the weaknesses in the State case, namely CB’s earlier denial and the contents of the J88, he said that there was overwhelming evidence against the plaintiff. CB had made a report to others and she and the plaintiff lived close to one another. There are cases where he does not oppose bail, for example if there is a weakness in the State case, but in this case he did not have to tell the court about C’s earlier denial because it is not unusual for a child to change his or her account.

Claim against the first defendant

[30] There was a dispute of fact concerning whether or not MO identified herself to the plaintiff when she arrived at his home and whether or not she explained why she was there. I find MO’s version more probable. It is improbable in itself that she would arrive and ask him to accompany her to the police station for questioning without saying who she was or why she was there. This improbability is strengthened by the plaintiff’s response to her that there were rumours that someone had interfered with CB. Why would he have mentioned that if MO had neither identified herself nor said why she was there?

[31] The other more important dispute of fact concerned the identity of the arresting officer. The plaintiff pleaded that MO arrested him. When he testified however he said that van Schalkwyk had arrested him. It was submitted on behalf of the plaintiff that because van Schalkwyk had not testified there was no evidence by an arresting officer that the arrest was founded on a reasonable suspicion. I am in agreement with the submission of the first defendant’s counsel that it would be unfair to allow the plaintiff to advance a case at this stage which was different to what was pleaded. In any event given the improbabilities of the plaintiff’s evidence already referred to, MO’s evidence of her interaction with the plaintiff from the start and her role in detaining him is preferable. It was submitted on behalf of the plaintiff that the typed words in the warning statement that the plaintiff had been informed of the reason for his arrest meant that van Schalkwyk was the arresting officer. I disagree. The mere fact that this was stated in the warning statement does not exclude the arrest already having taken place by another officer. In addition, the plaintiff, on his version, knew that van Schalkwyk was the arresting officer prior to the issue of summons but his particulars of claim were not amended. I accept that MO was the arresting officer.

[32] Section 40 (1) (b) of the Criminal Procedure Act provides:

“(1) A peace officer may without warrant arrest any person-

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

MO was a peace officer and rape is a schedule 1 offence.

[33] In Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654(SE) at 658E-H, Jones J, in dealing with the requirement of a reasonable suspicion, said the following:

“The test of whether a suspicion is reasonably entertained within the meaning of s 40 (1) (b) is objective (S v Nel and another 1980 (4) SA 28 (E) at 33H). Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession

of stolen property knowing it to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty. The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

[34] Did MO’s conduct meet this standard? She was alive to the previous denial by CB, a year before, and interviewed CB a number of times to ensure that she was consistent. She interviewed her on the 14 January 2016 and only took her written statement two days later, after she had the J88. She had an explanation from the child for why she had not told anyone before about the abuse, namely that she was scared and shy and that the plaintiff had threatened her. She first requested a medical examination before taking a written statement from CB and MB and opening a docket. MB’s account was consistent with CB’s account that the plaintiff was the perpetrator. MO considered the forensic nurse’s conclusions and regarded them as corroboration for CB’s allegations. It was explained to her, after she enquired, that the tyre sign was an old injury.

[35] I do not think it was unreasonable for MO not to consider CB to be unreliable because of her earlier denial of abuse. She explained her own situation where she had been too scared to report the abuse at the time. Her own experience enabled her to consider the child’s explanation for her earlier denial as understandable and credible. One must remember that this was a very young child who was only five years old when the abuse allegedly occurred. I do not think that MO was subjective and hence did not act reasonably. It is not at all unknown for children to stay quiet about abuse out of fear or shame or even love. One does not have to have personally suffered abuse to know this. In any event, MO did not act solely on CB’s allegations. She took the precaution of requesting a medical examination which was a way of checking CB’s allegations, and she also had the statement from MB.

[36] From MO’s point of view, the J88 revealed sexual abuse in the context of her having told the nurse when the offence had allegedly taken place. She had the information that the tyre sign was an old injury. I think it was expecting too much of MO to have asked the nurse how old this injury was in order to match it to the allegation of when the abuse had occurred. It was clear from MO’s evidence that she had not taken notice of findings in the J88 which might have indicated recent injuries. Again I think it was expecting too much from her to examine the J88 in great detail when she had the conclusions of the nurse and the evidence of an old injury.

[37] It was submitted that she should have taken a statement from Anna Myburgh before arresting the plaintiff. MO said that she did not know about Myburgh. This is not correct because Myburgh was mentioned in MB’s statement. I do not think that MO was deliberately untruthful in this regard. In any event Myburgh was just another person to whom CB had made a report. There was little likelihood, especially considering the nature of the offence, that there would be further direct evidence. The offence was alleged to have taken place when CB and the plaintiff were alone.

[38] As far as the alleged failure by MO to exercise her discretion properly and to consider other means of bringing the plaintiff to court, I am of the view that it was reasonable for her to consider the alleged threat to CB and the fact that CB and the plaintiff lived near to one another. The alleged offence was extremely serious. When confronted with the allegations the plaintiff would have realised that it was CB who had implicated him so the threat was not something to ignore.

[39] MO was criticised for not taking a fuller statement from the plaintiff. If she had done so, so the argument went, the plaintiff might have disclosed for example that he was impotent. I can see no fault in MO not taking a fuller statement from the plaintiff. She did not say that at this stage she had explained his rights. She had merely informed him of the reason for his arrest and arrested him. Once he denied the allegation of rape of CB, in my view it would have been improper to question him in order to obtain more information. He might have incriminated himself. It was submitted that because the plaintiff comes across as a simple and unsophisticated sort of person, he needed some guidance from the police. In my view the opposite is the position. If he had been pressed further by MO or van Schalkwyk it could have been construed as taking advantage of an unsophisticated person.

[40] Overall I am satisfied that MO exercised her discretion properly and that her suspicion was founded on solid grounds.

Claim against the second defendant

[41] I am of the view that Soga’s assessment that he had a prima facie case was supported by the information in the docket at that stage. There was a statement from CB identifying the plaintiff and describing what had been done to her, there was the so-called “first report” statement from MB which showed consistency on the part of CB, and there was the J88 which confirmed sexual abuse. It might be that Soga reasoned ex post facto, understandably so, when he said that the J88 supported CB’s allegations of vaginal and anal abuse. At that stage CB had not expressly mentioned anal abuse. However this detail is insignificant in relation to the information which Soga had in the docket. Soga said that he considered CB’s earlier denial of abuse but was of the view that it was not unusual for young children initially not to tell what had happened but later to do so. I have already dealt with this tendency above and I think it quite reasonable for Soga to have evaluated CB’s contradictory statements in this light. As far as the J88 was concerned, I further do not think it was unreasonable for Soga not to analyse in detail the contents of the J88. In these types of cases the examining medical practitioner is frequently called to testify to explain in more detail the implications of the various injuries noted and their opinions may be tested in cross-examination. Both these aspects of the State case, that is the previous denial and the contents of the J88, would have been more properly considered at the trial stage, had there been a trial. As was said by Van Oosten J in Kiviet v M and Others [2017] ZAGPJHC 368 at para [28]:

“It is not a requirement that the State should have a perfect or irrefutable case as was in effect contended for by counsel for the plaintiff. Nor is the prosecutor required to usurp the role of the Magistrate or Judge in deciding whether reasonable and probable cause for continuing with the prosecution exists. Solid as a case may appear to be on paper and even so after consultation with witnesses, it does not guarantee a conviction, as this case clearly shows. Aspects such as cross-examination of witnesses are amongst the numerous unforeseen variables that determine the outcome of a case. The acquittal of the plaintiff followed upon uncertainties having arisen upon the trial court’s evaluation of the complainant’s version in court. The acquittal did not as counsel for the plaintiff sought to suggest, follow upon a state case that was doomed to failure right from the outset.”

This was said in relation to a claim for malicious prosecution but I think that it is equally apposite to the claim in this case.

[42] Was there a duty on Soga to disclose to the magistrate that CB had previously denied abuse and that some of the findings in the J88 appeared to be fresh injuries? In the context of the evidence as a whole which was available to Soga at that stage, I do not think his duty extended that far. There was an explanation for CB’s previous denial which was not far-fetched or improbable, and some of the findings in the J88 indicated old injuries, for example the remnants of a hymen, scarring, and tyre signs. The conclusions in the J88 clearly stated that the injuries were consistent with sexual abuse/assault. Even if Soga had disclosed these factors to the magistrate, is it more probable than not that the magistrate would have released the plaintiff without postponing the case for a formal bail application? I do not think so. The magistrate would also have been informed of all the evidence against the plaintiff, not just those two factors, which in my view were minor in relation to the bulk of the evidence at that stage. They were not so material as to demonstrate a weak State case obviating the need for a formal bail application, bearing in mind that this was a schedule 6 offence and the onus on an accused to prove on a balance of probabilities the existence of exceptional circumstances. It is useful to compare the factors in this case with what were considered factors in other cases which would have caused a magistrate to have granted bail or released an accused on warning.

[43] In Woji v Minister of Police 2015 (1) SACR 409 (SCA) a police inspector should not have opposed bail or should have informed the magistrate that the appellant was not clearly depicted in video footage of a robbery. At the time of the bail application the video footage was the only evidence linking the appellant and his co-accused. The magistrate relied on the inspector’s evidence that the footage was clear enough to identify the appellant, and refused bail. Swain JA said that if bail had not been opposed or the inspector had informed the magistrate that the appellant was not clearly depicted in the video footage, the magistrate would more probably than not have released the appellant on bail (at para [32]).

[44] In Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) the police officers had wilfully distorted the truth, thereby misleading the prosecutor and the magistrate, causing the respondent to be refused bail and to remain in custody until his trial ended with his acquittal. Fourie AJA said at para [41] that it was inconceivable that the prosecutor would have proceeded with the prosecution or that the magistrate would have refused bail,

if they had been apprised of all the relevant facts.

[45] The factors relied upon by the plaintiff in this case are in my view of little significance when compared to the facts in these two cases.

[46] It follows that I am of the view that there was no breach of the prosecutor’s public law duty which caused the further detention of the plaintiff.

[47] The plaintiff has therefore not succeeded in his claim against either of the defendants.

[48] The following order will issue:

The plaintiff’s claims against the first and second defendants are dismissed with costs.

___________________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

Plaintiff: Advocate S Cole, instructed by Wheeldon Rushmere and Cole Inc, Grahamstown

First defendant: Advocate B Boswell, instructed by Enzo Meyers Attorneys, Grahamstown

Second defendant: Advocate X Nyangiwe, instructed by Mabece Tilana Inc, Grahamstown

[1] My reason for not disclosing her full name will be apparent later in this judgment.

[2] Section 60 (11) (a) of the CPA

[3] The plaintiff is a diabetic.