Koji v Director of Public Prosecutions (628/2018) [2024] ZANWHC 297; [2025] 1 All SA 680 (NWM) (5 December 2024)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION

MAHIKENG

Case No: 628/2018

Reportable: YES/ NOCirculate to Judges: YES/NOCirculate to Magistrates: YES/NOCirculate to Regional Magistrates: YES/NO

In the matter between:

K N KOJI

PLAINTIFF

AND

THE DIRECTOR OF PUBLIC

PROSECUTIONS

DEFENDANT

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 05 December 2024 at 14h00

ORDER

1. The defendant is liable to compensate the plaintiff for damages, to be proven during the quantum stage of the trial, in respect of the plaintiff’s claim for malicious prosecution.

2. The defendant is ordered to pay the costs of the suit on the High Court party-and-party scale, which costs are to include the costs of counsel on Scale B.

3. The quantum portion of the trial is postponed sine die and is to serve before Reddy J.

JUDGMENT

REDDY J

[1] On 20 July 2012, the plaintiff, Mr. Kgakololo Nicolus Koji, (“Koji”) was arrested on allegations of public violence, arson and malicious damage to property. Whilst on bail, a consolidation of case dockets

occurred with Koji eventually being tried in the Regional Court sitting at Taung on multiple charges.

[2] On 31 October 2016, Koji was found not guilty and discharged by virtue of the invocation of the provisions of section 174 of the Criminal Procedure Act, (“the CPA”) 51 of 1977. Pursuant to same verdict, Koji instituted an action for damages, against the National Director of Public Prosecutions, (“the NPA”), for malicious prosecution claiming damages in the sum of R405 000.00 (Four Hundred and Five Thousand Rand). The parties agreed to a separation of liability and quantum as exhibited in Rule 33(4) of the Uniform Rules of Court, (“the Rules”). The defendant pleaded that concerned prosecutors acted with reasonable

and probable cause. In short, they were bona fide and demonstrated an absence of malice. In terms of Rule 33(4) of the Rules of Court, the court ordered that the issue of liability and quantum be separated.

[3] The nub of the Koji’s case is as follows. On the 20 July 2012, he had two primary objectives that had to reach fruition. The first, required a sojourn to the South African Police Services, (“the SAPS”). This was to comply with a peremptory bail condition that was imposed on him in a pending criminal matter where he coincidentally appeared on a charge of public violence. He came across two police officers with whom he exchanged greetings, divulging that he was on his way to the SAPS. Quintessentially, Koji

complied with this condition of bail.

[4] The second, was to attend a meeting where a Member of the Executive Council for the portfolio of Public Works, North West Province, Mr Raymond Elisha, (“the MEC”), would address the community. The purpose of this address by the MEC was to deal with service delivery concerns of the community.

[5] On adhering to the condition of his bail, Koji received a telephone call from his friend, Patrick. Patrick requested that Koji drive him to Hartswater to purchase some items from a corporation. The inability of Patrick to drive himself was caused by an injury to his leg. Koji acquiesced. Resultantly, Patrick arrived at the SAPS whereat Koji was. On route to the intended destination, they noticed protests that were occurring at Maphoitsile. The protestors had barricaded the road, notwithstanding the presence of the SAPS.

[6] Koji informed Patrick that as part of his release on bail he was prohibited from participating in any protest. Consequently, Koji made a U-turn intending to return to his home. For the second time, protestors thwarted the intended destination of Koji. His road of travel was barricaded. As he continued to drive to Manokwane Village, he picked up his nephew Thatayaone at the hospital. Koji’s nephew suggested an alternative route. Koji contended that he had been privy to rumours that a furrow/ canal had been destroyed. Koji decided to investigate same. On approaching, he discovered individuals from the district office who were employed by the Department of Water. Noticeably, members of the SAPS maintained a presence. Those in the employ of the Department of Water and the SAPS in unison implored Koji to address the community so that any further damage to the canal/furrow could be impeded. Koji declined the invitation on two grounds. First, that such a request would be in breach of his conditions of bail. Second, he had intended to attend the meeting of the MEC.

[7] Whilst these discussions were ensuing Koji observed smoke emanating approximately five (500) metres away from Manokwane Village. Koji then left to attend to the meeting of the MEC, stopping at a tuck shop to purchase a cigarette. At the tuck shop police officers

arrived by motor vehicle. Koji identified Mr Mpho Skwait, (“Skwait”), a previous Councillor as part of the party of the police. Skwait pointed out Koji, which resulted in an arrest being executed on Koji. The usual criminal process followed. Notwithstanding Koji’s protestations of his innocence, a prosecutorial discretion was exercised to proceed with the matter. Koji stood trial in the Regional Court on consolidated charges, inter alia, public violence and arson. On 31 October 2016, Koji was found not guilty and discharged as evinced within the provisions of section 174 of the CPA.

[8] Two prosecutors were called by the NPA. Miss Kunene, (“Kunene”) and Mr Monare, (“Monare”). Monare was the Senior Prosecutor who had made the decision to enrol the matter. Kunene was seized with Koji’s matter at a District Court level, more pertinently as it related to Koji’s bail application. Pursuant to arrest Koji made his first appearance. Koji’s matter was postponed to 01 August 2012 for the purposes of a bail application. Koji was granted bail on 07 August 2012. On 08 October 2012, his matter was transferred to the Regional Court at Taung, with 07 December 2012, being earmarked for Koji to appear. Kunene conceded that notwithstanding the decision of Monare to prosecute Koji, the case docket did not contain the statements of Warrant Officer April Mlandeli March, (“March”) and Lieutenant Molatlhegi Jacoob du Plooy, (“du Plooy”) at the time that Koji had applied for bail. Moreover, no interviews with witnesses were conducted which could form the basis for the opposition to bail. Kunene confirmed that the statements of March and du Plooy were filed in the case docket ex post facto, the bail hearing. The statement of du Plooy was incomplete as the section dealing with the commissioning of the statement as evinced in the Regulations Governing the Administration of the Oath/ Affirmation Published under GN R1258 in GG 3619 of 21 July 1972, as amended had not been complied with.

[9] Adv van Eeden asserted that the common cause facts are that Koji was prosecuted, and he was discharged in terms of section 174 of the CPA. The central question so Adv van Eeden continued, was whether the prosecutor/s had sufficient facts at their disposal to justify the continuous prosecution of Koji. In Adv van Eeden’s view the prosecutor/s did not have such information as would lead a reasonable person to conclude that Koji had probably been guilty of the offences charged. To this end, the argument ran that the prosecutor/s could not have bona fide believed in Koji’s guilt given the absolute lack of evidence, subjectively or objectively.

[10] Adv van Eeden further averred that the NPA had not presented any evidence to justify the prosecution of Koji on count 1, which related to the allegation of public violence and has not tendered any evidence to demonstrate why Koji was prosecuted on the remaining 8 counts relating to arson and malicious damage to property. This, he contended constituted malice. As for malice, Adv van Eeden posited that the only ineluctable inference to be drawn is that the prosecutors responsible for initiating the prosecution against Koji on the charges under consideration were aware that (i) in initiating the prosecution foresaw the possibility that they were

acting wrongfully, (ii) but they nevertheless acted, reckless as to the consequences of their conduct. This constituted dolus eventualis. Tellingly, there was no evidence on the charges of malicious damage to property or arson pertaining to the burned down houses.

[11] Adv van Eeden concluded that the evidence remained uncontested, without a version to the contrary being put to Koji, combined with the fact that the prosecutors had no evidence linking Koji to the commission of the alleged offences of malicious damage to property and arson. At best, the only affidavits in the docket (obtained after the law was set in motion and after Koji’s first appearance in court) linking Koji to any alleged offence, was that Koji was seen at a bridge/ barricade. This is insufficient to proceed with a prosecution on a charge of public violence. Furthermore, Adv van Eeden averred that the NPA had no evidence linking Koji to houses that were set alight and the property which was damaged as per counts 2 to 9. That being so, a proper case had been made out for a finding in favour of Koji.

[12] Adv Sebitlo contended that Koji harboured under the serious misapprehension that on an initial declaration of his innocence at the genesis of a prosecution, accompanied by a judgment within the provision of section 174 of the CPA constitutes a malicious prosecution. The submission continued that Koji’s case demonstrated a clear inability to prove the peremptory requirements for a successful claim of malicious prosecution.

[13] To this end, Adv Sebitlo asserted it was incumbent on Koji to prove that the prosecution was instigated by the NPA. Seeing that it was concluded in favour of him, Koji had to demonstrate that there was no reasonable and probable cause for the prosecution and that the prosecution was actuated by malice. It was conceded by Adv Sebitlo that the prosecution was instigated by the NPA and that it had been concluded in favour of Koji. Regarding the latter two requirements that form the basis for a successful malicious prosecution action, Adv Sebitlo reasoned that Koji’s case had not reached that watermark.

[14] Adv Sebitlo, suggested that March and du Plooy deposed to statements according to the events of the day in question. In terms of these statements, Koji was positively identified by March as one of the individuals who participated in public violence at Manokwane Village. At the trial of Koji both March and du Plooy testified. The nub of their testimonies was that while other participants in the acts of public violence were unknown to them, March and du Plooy positively identified Koji as actively participating in unlawful acts.

[15] Relating to the conduct of the prosecutors dealing with Koji’s matter, Adv Sebitlo at paragraph 34 of her written heads postulates the following in respect of Kunene:

“[34] Ms. Kunene testified that at the time of the arrest of the plaintiff and his appearance before court, it was established that he had a pending matter of public violence. She testified that the plaintiff had also been identified as per exhibit C and D as well as the statements of Kebuileng Ntikang Portia and that of Warona Kgosinkwe Joseph also contained in bundle C2. Ms. Kunene testified that at all material times, she laboured under the honest belief founded on reasonable ground that the institution of the proceedings is justified against the plaintiff.”

[16] As for the role of Monare, Adv Sebitlo avers the following at paragraphs 36 and 37:

“ [36] Mr. Monare testified that according to the statements which he relied upon in making the decision to enroll the plaintiff’s case, the plaintiff was positively identified by warrant officer March as one of the people who participated in public violence at Manokwane village and further barricaded the bridge with stones an tree branches near Taung Hospital and burnt tyres on Taung Manthe public road.

[37] Mr. Monare testified further that the statement of warrant officer March was corroborated by the statement Lieutenant du Plooy. In this testimony Mr. Monare confirmed that when the decision to enroll the matter was taken, there was case against the plaintiff to answer. Thus there was no malice perpetuated when the matter was enrolled. He testified that the matter was thereafter referred to the Director of Public Prosecution for decision, which took the decision to prosecute the plaintiff in the regional court.”

[17] The National Director of Public Prosecutions derives its mandate from section 179 of the Constitution. Section 179(2) expressly empowers the prosecuting authority to institute criminal proceedings on behalf of the State. This constitutional imperative must be exercised without fear, favour, or prejudice. This constitutional edict should not be construed to mean that a prosecution can be initiated without a proper consideration and application of the relevant law to justify unfounded prosecutions.

[18] What is demanded in a constitutional eon is that when a decision is made to prosecute, prosecutorial oversight accompanies such decision to continuously assess the process to determine whether the prosecution is justified or not.

[19] In S v Lubaxa 2001 (2) SACR 703 (SCA) at paragraph 19 ( Harms, Scott, Mpati, JJA, Conradie and Nugent, AJJA concurring) vocalized the following:

[19] The right to be discharged at that stage of the trial does not necessarily arise, in my view, from considerations relating to the burden of proof (or its concomitant, the presumption of innocence) or the right of silence or the right not to testify, but arguably from a consideration that is of more general application. Clearly a person ought not to be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the expectation that at some stage he might incriminate himself. That is recognised by the common law principle that there should be “reasonable and probable” cause to believe that the accused is guilty of an offence before a prosecution is initiated (Beckenstrater v Rottcher and Theunissen 1955(1) SA 129 (A) at 135C-E), and the constitutional protection afforded to dignity and personal freedom (s 10 and s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights protected by s 10 and s 12.”

[20] Significantly, on occasions where the conduct of the NPA falls gravely shy in terms of the standards within which a prosecution maybe initiated an aggrieved party is not without remedy. An action for malicious prosecution can be instituted.

[21] The jurisdictional requirements for a successful claim for malicious prosecution are settled in our law. In Minister of Justice and Constitutional Development v Moleko 2008 [3] All SA 47 (SCA) paragraph 8, the following requirements were stated in this regard:

"In order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove –

(a) that the defendants set the law in motion (instigated or instituted the proceedings);

(b) that the defendants acted without reasonable and probable cause;

(c) that the defendants acted with malice (or animo injuriandi); and

(d) that the prosecution has failed."

[22] To this end, a plaintiff is required to prove the jurisdictional requirements as evinced in Moleko on a balance of probabilities. See: Mabona v Minister of Law and Order 1988 2 SA 654 (SE) 658E. See also Gellman v Minister of Safety and Security 2008 1 SACR 446 (W) paragraph 72; Le Roux v Minister of Safety and Security 2009 4 SA 491 (KZP) 498 paragraph 24; Visagie v Minister of Safety and Security 2009 ZAECHC 2 paragraphs 20-23.

[23] In Relyant Trading (Pty) Ltd v Shongwe and Another [2007] 1 All SA 375 the Supreme Court of Appeal stated the following regarding the requirement of “malice” or animus iniuriandi: -

‘Although the expression ‘malice’ is used, it means, in the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd & another, Wessels JA said:

“Where relief is claimed by this actio the plaintiff must allege and prove that the defendant intended to injure (either dolus directus or indirectus). Save to the extent that it might afford evidence of the defendant’s true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance”.’

[24] Juxtaposing Relyant Trading, Van Heerden JA, in Moleko, at paragraphs 63 and 64 stated the following: -

‘Animus injuriandi includes not only the intention to injure, but also consciousness of wrongfulness:

“In this regard animus injuriandi (intention) means that the defendant directed his will to prosecuting the plaintiff (and thus infringing his personality), in the awareness that reasonable grounds for the prosecution were possibly absent, in other words, that his conduct was (possibly) wrongful (consciousness of wrongfulness). It follows from this that the defendant will go free where reasonable grounds for the prosecution were lacking, but the defendant honestly believed that the plaintiff was guilty. In such a case the second element of dolus, namely consciousness of wrongfulness, and therefore, animus injuriandi, will be lacking. His mistake therefore excludes the existence of animus injuriandi.”

[25] It is common cause that the NPA initiated the prosecution. Put differently, Koji was charged with 9 counts on a consolidated charge sheet before the Regional Court at Taung. It is irrefutable that the prosecution against Koji failed on all 9 counts. That being so, what falls for determination is whether the NPA acted without reasonable and probable cause and that the NPA acted with malice (or animo injuriandi).

[26] The evidence that was presented by the NPA centred on the events that unfolded on 20 July 2012. As an automatic consequence, the NPA placed much store on two statements. This was of March and du Plooy. It is undisputable that the statement of du Plooy was incomplete in that the page constituting compliance with Regulations Governing the Administration of the Oath/ Affirmation Published under GN R1258 in GG 3619 of 21 July 1972, as amended had not been complied with. That being so, it did not constitute an affidavit. Conspicuously, this incomplete statement does not contain a date. The evidence of March failed to cure the date on which his affidavit was commissioned which is indubitably after the prosecution against Koji was instituted. Noticeably March’s statement makes reference to a police docket Tuang CAS 129/07/2012, whereas the charge sheet that Koji appeared on

in the District Court is cited as Tuang CAS 132/07/2012.

[27] In an application within the tenets of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, the NPA correctly conceded that the statement of du Plooy was materially defective in that it was not an affidavit. For all that, it could not have been considered as affidavit evidence against Koji to have instituted the prosecution.

[28] That leaves the affidavit of March. This affidavit did not prove to be the silver bullet for the NPA. March’s affidavit like that of du Plooy had its own procedural deficiencies, the primary of which was the date on which the statement of March was commissioned. March’s statement was commissioned on 15 August 2012. The relevance of this date is the following. It is common cause that the NPA decided to set the law in motion by initiating or instigating the prosecution against Koji. For this to have occurred there ought to have been a prima facie case against Koji. Prima facie proof, in the absence of rebuttal, therefore, means clear proof, leaving no doubt. See: Ex parte Minister of Justice: In re R v Jacobson and Levy 1931 AD 474.

[29] In Prinsloo and Another v Newman, 1975 (1) SA 481 (A), the concept of reasonable and probable cause for a prosecution in the context of malicious prosecution was enunciated. The Court held that the test for reasonable and probable cause is an objective one. It is not based on the subjective beliefs or motives of the prosecutor. Reasonable and probable cause exists if a reasonable person would have concluded that the accused was probably guilty on the facts available to the prosecutor at the time. See: also Relyant Trading (Pty) Ltd v Shongwe and Another [2006] ZASCA 162; [2007] 1 All SA 375 (SCA) paragraph 14; Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 136A-B.

[30] It follows that a prosecutor need not have evidence establishing a prima facie case or proof beyond a reasonable doubt when deciding to initiate a prosecution. Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable prosecutor would have done considering the information available at the relevant stage. See: National Director of Public Prosecutions v Sijoyi Robert Mdhlovu (194/2023) [2024] ZASCA 85; 2024 (2) SACR 331 (SCA) (3 June 2024) at paragraph 21.

[31] It is undeniable that Koji was arrested on 20 July 2012. March’s statement was commissioned on 15 August 2012, whilst du Plooy’s statement was not commissioned. By a simple process of lateral reasoning, March’s statement could not have factually been part of the case of the NPA on the date it decided to initiate the prosecution against Koji. The fact that the second page to March’s statement is titled additional statement is of no moment. Kunene’s evidence dispels the existence of any statement by March. This Court has not been referred to what may have been the original statement of March. The NPA has not presented any evidence aliunde to suggest that the decision to initiate the prosecution was good in law.

[32] Viewed holistically and in context, the NPA did not have at its disposal at the time it decided to prosecute, reasonable and probable cause in the form of grounds for suspicion of guilt on which the prosecutors

were entitled to act. As the Supreme Court of Canada opined in Miazga v Kvello Estate 2009 SCC 51, ‘the reasonable and probable cause inquiry comprises both a subjective and an objective component’. The prosecutor must subjectively have a belief in the existence of reasonable and probable cause, and that belief must be justifiable from an objective point of view. The objective component requires the existence of sufficient evidence for a reasonable person to conclude

that the accused was probably guilty. See: National Director of Public Prosecutions v Sijoyi Robert Mdhlovu (194/2023) [2024] ZASCA 85; 2024 (2) SACR 331 (SCA) (3 June 2024) at paragraph 29.

[33] Given the absence of essential affidavit evidence the prosecutors seized with this matter could not have subjectively believed in the existence of reasonable and probable cause. There was no evidence for a reasonable person to conclude that Koji was probably guilty.

[34] In terms of Moleko, pivotal to a claim of malicious prosecution is the demonstration by Koji of animus iniuriandi, in the sense of intention to injure. This is an essential element of the actio iniuriarum on which an action for malicious prosecution is founded. To make short shrift of this requirement, Koji must prove that the NPA foresaw the possibility that initiating the prosecution was wrongful in that reasonable grounds for it were lacking, but that the prosecutors acted recklessly as to that moment. In Moleko it was further held that negligence or even gross negligence is insufficient - there must be dolus, at minimum, in the form of dolus eventualis.

[35] Put differently, 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). Negligence on the part of the defendant (or, I would say, even gross negligence) will not suffice.

[36] In my view, the concession by Kunene as regards the absence of the statements of March and du Plooy are fatal, the latter should not be viewed in a vacuum. The additional statements that Adv Sebitlo referred to namely that of Kebuileng Ntikang Portia and that of Warona Kgosinkwe Joseph was of no assistance to the NPA. Both these

statements were commissioned on 08 September 2012. The inescapable inference was that these statements could not have been part of the docket at the time a decision was made to initiate the prosecution of Koji. It evidently follows that Kunene and Monare would not have had these statements at their disposal when pondering a decision to initiate the prosecution of Koji.

[37] What is squarely apparent from the evidence is that Kunene and Monare were not seized with any evidence that could have formed reasonable and probable cause for incidences of 20 July 2024 at the time of the prosecution. Based on the aforesaid, I am persuaded that Koji has shown that the NPA acted without reasonable and probable cause and with malice in taking the decision to prosecute.

[38] In the premises, I make the following order:

Order

2. The defendant is ordered to pay the costs of the suit on the High Court party-and-party Scale, which costs are to include the costs of counsel on scale B.

A REDDY

JUDGE OF THE HIGH COURT,

OF SOUTH AFRICA,

NORTH WEST DIVISION,

MAHIKENG

APPEARANCES

For the Plaintiff Advocate van Eeden

Instructed By C/O Nienaber & Wissings

4204 Palmer Crescent

Leopard Park

2575

For the defendant: Advocate Sebitlo

Instructed By State Attorney

Megacity Complex

East Gallery

3139 Sekame Road

Mmabatho

Date of judgment reserved: 14 June 2024

Date judgment handed down: 05 December 2024