Makgoba v Minister of Police and Another (1339/2017) [2024] ZALMPTHC 34 (19 November 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO:1339/2017

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO THE JUDGES: YES/NO

(3) REVISED

SIGNATURE:

DATE: 19/11/2024

In the matter between:

MAKGOBA MOLAU LUCAS

Plaintiff

and

MINISTER OF POLICE

First Defendant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant

JUDGMENT

MPHAHLELE AJ

INTRODUCTION

[1] The Plaintiffs in this action claim damages against the National Director of Public Prosecutions ("the NDPP") for malicious prosecution.

[2] The Plaintiff on 3 March 2017 instituted action against the First and Second Defendants for damages he suffered as a result of wrongful arrest and detention by members of the First Defendant on 26 January 2006 and malicious prosecution by the Second Defendant.

[3] He was 30 years old and a police reservist on training as at the date of his arrest on 26 January 2006. The parties agreed that the matters be adjudicated upon by the Honourable Court in the form of a special case in terms of Rule 33 of the Uniform Rules of Court.

[4] The Defendant's special plea of prescription in respect of the first claim of unlawful arrest and detention against the First Defendant was upheld and on 5 May 2022 the Second Defendant found to be liable for the damages incurred by the Plaintiff for malicious damages.

[5] The matter was placed before me to determine the quantum in respect of malicious prosecution for which it has on 5 May 2022 already been found that the Plaintiff is liable thereof.

AMOUNTS CLAIMED BY THE PLAINTIFF:

[6] In paragraph 5.8 of his particulars of claim, the Plaintiff alleges that as a result of the conduct of the members of the Second Defendant, the Plaintiff has suffered damages in the amount of R5 000 000-00 (Five Million Rand) which has been quantified as follows[1]: -

a. Malicious prosecution R2 000 000-00;

b. Bringing the Plaintiff's name into disrepute R1 000 000-00;

c. Deliberate offensive act suffered by the Plaintiff when the members of the Second Defendant detained him R2 000 000-00.

[7] The Plaintiff obtained judgement on 05 May 2022 only in respect of malicious prosecution.

[8] Malicious prosecution consists in the wrongful and intentional assault on the dignity of a person comprehending also his or her good name and privacy[2]. There is no order which was made by the Court in respect of the claim of bringing the Plaintiff's name into disrepute and deliberate offensive act suffered by the Plaintiff when the members of the Second Defendant detained.

[9] This judgement, is as a result, only in respect of the claim of malicious prosecution which the Plaintiff is claiming R2 000 000-00.

CONSIDERATION OF QUANTUM FOR MALICIOUS PROSECUTION OF THE PLAINTIFF.

[10] Ms Madavha for the Plaintiff submitted that the Plaintiff was arrested on 26 January 2006 and charged with the offence of rape.

[11] He made his first appearance in court on 27 January 2006 and remanded in custody. The Second Defendant had opposed his release on bail.

[12] A formal bail application was held and bail was subsequently fixed in favour of the Plaintiff during March 2006, who only managed to pay and was released in October 2006. He was, consequently incarcerated for a period of nine (9) months.

[13] The Plaintiff made several court appearances which are about 15, and the Defendant insisting in prosecuting the Plaintiff. The said appearances were in an open court in full view of the gallery for an offence that the Plaintiff did not commit. I must hasten to state that the days of his appearance were, however, not placed before the Court.

[14] She further stated that DNA tests were conducted and the result came negative (7 June 2006) and not linking the Plaintiff, however the Defendant did not withdraw the charges against the Plaintiff.

[15] The charges were then provisionally withdrawn in 2007, on 10 June 2016 the Defendant responded to a letter addressed to it by the Plaintiff's Attorney, in which letter they stated that they had decided not to prosecute the Plaintiff (Nolle prosequi).

[16] During the time of the arrest, the Plaintiff was a Police Reservist and awaiting to be formally employed by the South African Police Service. He had a fiance and a child that he was staying with, who then left her in that she stated she could not stay with a rapist. The Plaintiff has since lost his fiance and only has reasonable access to the minor child.

[17] The Plaintiff slept on the floor which was unusual to him, using dirty and itchy blankets, it was not a good place for him because the floor was dirty, the food portions were very small, bathing using cold water inmates were smoking cigarettes and that affected him since he was a non-smoker.

[18] The Plaintiff was labelled a rapist by his family member whom had a problem in accepting him back after the charges were withdrawn. Prior his arrest the Plaintiff was a loyal church member of Zion Christian Church (ZCC) and when he was finally released, he was not allowed to take part in church duties since he was considered to be "Filthy".

[19] The Plaintiff was detained in a prison cell that was filthy, the toilet being at the same place that he sleeps and eats. He had challenges with food offered in that at times it was half cooked or stale and always caused him to have diarrhoea. The roof in the holding cells leaked during rainy days and the inmates would be wet and sleep on wet floor.

[20] The Plaintiff was abused by fellow inmates, who took his belonging and at times got assaulted.

[21] The malicious prosecution by the Defendant, is set as from the date the Plaintiff made his first appearance at court on the 27 January 2006, his several appearances in court, the Defendant being in possession of the negative DNA result but pursues the prosecution until the day that the charges are withdrawn.

[22] In my view, submissions made by the Plaintiff of what transpired in prison are relevant to a claim of unlawful or wrongful detention than to malicious prosecution.

[23] The allegations that the Plaintiff was labelled a rapist after charges were withdrawn are difficult to comprehend. It is the Plaintiff's family members who paid bail for him and I find it is difficult to fathom how they can after paying bail for him turn around and label him a rapist after charges against him were withdrawn.

[24] It was the Plaintiff's family members who paid for his bail in October 2006. How could they, after the charges were withdrawn, label him a rapist and have a problem in accepting him. The family members, by paying bail for him, displayed an intention that they wanted to have him released from of prison so that he can be with them. In my view, these allegations are not supported by anything except the word of the Plaintiff and in my view just a red herring intended to justify the amount claimed by the Plaintiff.

[25] If the allegations are correct, the Plaintiff has legal recourse against such persons. Lastly, no evidence was tendered of who and when was he labelled a rapist and I, accordingly, find it difficult to accept that this is the case.

[26] I also agree with the submissions of Ms Masindi for the Second Defendant that the Plaintiff's fiance did not leave him because of his arrest as she alleged that she could not stay with a rapist. It is again inconceivable that the Plaintiff could have two kids after he was released from prison with the very same fiance who did not accept him back after the charges were withdrawn.

[27] There is no reason why anyone can label the Plaintiff a rapist if he has not been found guilty of the crime. He is entitled to take legal action against such persons as he did when the Defendant infringed his rights should anyone label him as such.

[28] No evidence was tendered as to what steps the Plaintiff took when he was "not allowed to take part in church duties since he was considered to be Filthy" to establish that this not only occurred but that the Plaintiff indeed took steps to resume with his church duties. Without proof of steps he took to do that, in my view, there is insufficient evidence to establish this fact.

[29] The quantum awarded should correspond to the nature and severity of the violation, ensuring that the compensation is just and equitable.[3]

[30] I find the principles in Protea Assurance Co Ltd v Lamb,[4] equally applicable in the present case where Potgieter JA said the following in relation to general damages for bodily injury which was repeated more recently by this court in Road Accident Fund v Marunga:[5]

"It is settled law that the trial Judge has a large discretion to award what he in the circumstances considers to be a fair and adequate compensation to the injured party for these sequelae of his injuries. Further, this Court will not interfere unless there is a 'substantial variation' or as it is sometimes called a 'striking disparity' between what the trial Court awards and what this Court considers ought to have been awarded."

[31] The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value than that. As pointed out by Potgieter JA in Protea Assurance Co Ltd v Lamb,[6] after citing earlier decisions of this court:

"The above quoted passages from decisions of this Court indicate that, to the limited extent and subject to the qualifications therein set forth, the trial Court or the Court of Appeal, as the case may be, may pay regard to comparable cases. It should be emphasised, however, that this process of comparison does not take the form of a meticulous examination of awards made in other cases in order to fix the amount of compensation; nor should the process be allowed so to dominate the enquiry as to become a fetter upon the Court's general discretion in such matters. Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration.”[7]

[32] The actio iniuriarum is a remedy for the compensation of damages caused to the person of a plaintiff and the concomitant impairment of his/her dignitas. It does not extend to compensation for future loss of income (the basis whereof is to be found in the actio legis aquiliae) or "publication in the media" (which will properly resort under an action for defamation, under the actio iniuriarum, but there is only one action in the hands of the plaintiff that the injury committed can give rise to)

[33] The Plaintiff's cause of action can be located within actio iniuriarum because he is claiming damages for injuries to her person, dignity or reputation, and alleges that the injury is committed wrongfully and with the animus iniuriandi (intentionally).

[34] Compensation for damages caused by injury to the personality, will be awarded as a solatium under the actio iniuriarum, whilst compensation for pecuniary loss will be under the actio legis Aquiliae. However, a plaintiff has only one action for compensation under the actio iniuriarum [8].

[35] In the instance, the Plaintiff confined his claim to the actio iniuriarum. He has presented no evidence of any patrimonial damages he has suffered. It was quite correct that Ms Madavha conceded during her submissions that a claim for loss of earnings could not be pursued by the Plaintiff.

[36] I agree with the sentiments expressed in several decisions that Courts must strike a balance between compensating the aggrieved party adequately and ensuring that damages awards are fair and reasonable, taking into account the facts of each case and the applicable legal principles. As noted in Minister of Safety and Security v Seymour,[9] courts should be mindful that there are many legitimate calls upon the public purse, and awards should reflect this reality while still providing fair compensation.

[37] The onus to convince the court of a just and fair quantum rests on the Plaintiff.

[38] Save for the matter of Patel v National Director of Public Prosecution and others[10], the other cases referred to by Ms Madavha deals not only with malicious prosecution but also unlawful arrest and detention. They

were thus of little or no significant assistance to this Court.

[39] In awarding an R900 000-00 for malicious prosecution in Patel v National Director of Public Prosecution and others, (a case referred to by the Plaintiff) the Court took into consideration the following:

a. The defendants were aware that the case involves a senior Judge. That was the reason why two sets of senior state prosecutors were later involved to seek their views in assisting the first and second defendants.

b. The failure by Advocate Noko to pursue mediation was viewed as an indication that she intended on seeing the matter being heard in a Criminal Court. According to Advocate Noko mediation was not an important way to resolve this matter because even when the civil trial was heard about three years after the prosecution team recommend it, it had not yet taken place.

c. The Plaintiff testified that the preferring of a charge of crimen injuria and the decision that he should be prosecuted impaired his dignity, reputation and embarrassed him. As a Judge his duty is to dispense justice but he was required to appear in a Criminal Court as an accused after the second defendant and the first defendant decided to prosecute him.

d. The matter was also highly publicised in the newspapers.

[40] In casu, the Plaintiff claims an amount of R5 000 000-00 (five million rands) as compensation for the general damages, the costs of the proceedings as well as the costs of the action which includes Counsel's fees and fees for the Expert.

[41] The Plaintiff was arrested on 26 January 2006 and charged with rape and appeared in Seshego Magistrates' Court on 27 January 2006. The State opposed bail and he was remanded into custody and eventually granted bail in March 2006. He remained in custody until his family members managed to pay bail in October 2006. He appeared before court on three other occasions before charges were withdrawn in 2007.

[42] He was a police reservist and was arrested in front of his colleagues and detained in the same police station.

[43] This Court in M.M v Minister of Police and Another[11] ordered the Defendant to pay to the plaintiff the sum of R100 000.00 (one hundred thousand rand) as damages for malicious prosecution.

[44] I took into cognisance that the was almost seven years ago and in my view an amount of R180 000-00 (one hundred and eighty thousand rand) as damages for malicious prosecution will be appropriate compensation.

[45] In the result, I make the following order:

a. Payment of the sum of R180 000.00 (one hundred and eighty thousand rand only);

b. Interest at the current rate of interest per annum with effect from the date of judgment to date of payment;

c. Costs of suit on a party and party scale and the costs, scale B.

Acting Judge of the High Court of South Africa

Limpopo Local Division, Thohoyandou

APPEARANCES

Counsel for Plaintiff: Adv B Madavha

Instructed by:

Mvundlela & Associates Attorneys Inc.

Counsel for Defendant: Adv T Masindi

Instructed by:

The State Attorney: Polokwane

[1] Pleadings Bundle at Page 13.

[2] Heyns v Venter 2004 (3) SA 200 (T) 208B.

[3] Motsose v Minister of Police and Another (814/2016) (2024) ZANWHC 267 (11 October 2024) at para. [21].

[4] 1971 (1) SA 530 (A) at 534H-535A:

[5] Road Accident Fund v Marunga (144/2002) [2003) ZASCA 19; [2003] 2 All SA 148 (SCA); 2003 (5) SA 164 (SCA) (26 March 2003)

[6] 1971(1) SA 530 (A) at 534H-535A:

[7] See also Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), where the court held at paras 17 and 20: "The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are

directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value than that".

[8] See Le Roux and Others v Dey (Le Roux & Others v Dey 2010 (4) SA 210 (SCA) at [21] - [23]; confirmed on appeal 2011 (2) SA 274 (CC).) at [21] - [23].

[9] 295/05) [2006 ZASCA 71; [2006] SCA 7 (RSA); [2007] 1 All SA 558 (SCA) (30 May 2006) at paragraph [20].

[10] (4347/15) [2018] ZAKDHC 17; 2018 (2) SACR 420 (KZD) (13 June 2018).

[11] (1002/2012) [2017) ZALMPPHC 22 (23 August 2017).