Makhetha v Minister of Police and Another (897/2019) [2020] ZAFSHC 207 (17 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 897/2019

In the matter between:

TEBOGO EDGAR MAKHETHA

Plaintiff

and

MINISTER OF POLICE 1st Defendant

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS 2nd Defendant

HEARD ON: 25 & 26 AUGUST 2020

CORAM:

MATHEBULA, J

DELIVERED ON: 17 NOVEMBER 2020

Introduction

[1] The plaintiff, a resident of Bochabela, Bloemfontein, claims damages against the defendants for unlawful arrest and detention as well as malicious prosecution.

[2] On the first day of the hearing the parties agreed on a number of issues which limited the scope of the issues in dispute. On claim one, the first defendant conceded the merits in favour of the plaintiff. Further the plaintiff withdrew the second claim against the first defendant. The parties further agreed that the merits and quantum be separated which orders were granted by this Court. This means that the only issue to be determined is whether the second defendant is liable to compensate the plaintiff for malicious prosecution.

Facts

[3] On 15 February 2018, the plaintiff then employed by a well-known supermarket chain store was arrested at this workplace by members of the first defendant. It was conveyed to him that he had made himself guilty by committing criminal offences namely theft out of motor vehicles. They were registered as CAS 914/03/2017 and CAS 936/07/2017, Park Road respectively. There was no direct evidence against him but was linked to the commission of the crime through fingerprints. Despite his protestations of innocence, he appeared in court and denied bail. After several postponements, the hearing commenced on 20 July 2018. It is common cause that he was incarcerated until he was released on his own recognizance only after the testimony of one witness.

[4] The prelude to the granting of bail was prompted by the realisation that the prosecution had a weak case against him at that stage. Two more postponements ensued. At the end of the case for the prosecution the plaintiff was discharged in terms of section 174 of Act 51 of 1977. These are the facts that the plaintiff relies on to sustain his claim.

[5] At the time these events were unfolding, Jac Potgieter was the Public Prosecutor who handled the matter in the reception court and later coincidentally handled the trial. It would appear that purely on the basis of the affidavit of the fingerprint expert he proceeded with the matter. The other consideration was that a witness on count number 2 one Gert Andries Hertzog was visibly upset with the slow pace of the court proceedings and he (Potgieter) was under pressure to assist him. Before delving into other aspects, I pause to mention that no evidence was led whatsoever to prove count number 1. It is a no-brainer to conclude that the prosecution failed to prove anything on this charge.

[6] Turning to the issue of the fingerprints he learnt from the fingerprint expert (second defence witness) that the court chart

could not be prepared because he could not match them. Even on the new ones (fingerprints) that were sourced, the difference was palpable that he could conclude that there is no match by merely looking at them with a naked eye. This obviously put paid to the case on behalf of the prosecution.

[7] Briefly the evidence of Motsamai Thuntsha, whose expertise was not disputed, was that he was only called to testify in respect of count number two. He received a subpoena to attend trial on a short notice. It was accompanied by a set of fingerprints obtained from the plaintiff known as SAP Form 192. In order to prepare the court chart, he had to compare the fingerprints on the form as well as those obtained from the scene of crime. He could not establish the match thus dispelling any link that the plaintiff was the perpetrator of the offences.

Legal framework

[8] In order to succeed in a claim for malicious prosecution, the plaintiff must satisfy (i.e. allege and prove) the requirements as set out by the Supreme Court of Appeal as follows:-

“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. (In this case, of course, Mr A Moleko was acquitted at the end of his criminal trial and requirement

(e) need detain us no further.)”[1]

The parties are ad idem that the second defendant set the law in motion against the plaintiff and such prosecution failed. This judgement is concerned with whether the plaintiff has discharged the necessary onus on the other two requirements as stated above.

[9] Counsel for the second defendant relied on the test for absence of reasonable and probable cause set out in Beckenstrater v Rottcher and Theunissen. The court said the following:-

“When it is alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed B in the plaintiff's guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause.”[2]

[10] On the back of the passage quoted above he submitted that the relevant sworn statements provided the information which led the Prosecutor (Potgieter) to conclude to set the law in motion against the plaintiff and that he was guilty as charged. In the circumstances, Potgieter had done all that was expected of him taking reasonable measures to discover the facts upon which to base his conclusion that the plaintiff was guilty of the offence. The position is that it is not necessary to have tested all relevant facts before proceeding with the prosecution.[3]

[11] Importantly on paragraph 64 in Moleko supra the court said the following:-

“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.”

[12] The prosecutor is an important cog in the dispensation of the entire administration of justice. Dispensing just and equitable justice is entrenched in the constitution of the Republic. It is expected that in the execution of his/her duties, an incumbent will do so with independent mind and integrity. Importantly he must not act arbitrarily, carry out his duties with objectivity and protect the public interest.[4] In the exercise of the discretion whether to prosecute or not on the basis of the information at his disposal, the court in S v Lubaxa said the following:-

“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 I (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.”[5]

[13] Turning to this matter, the plaintiff stood trial on two (2) counts of the same offence allegedly committed on different place and time. Both counsel spent much time and effort on count number two. Nothing was said about count number one. Despite the charge being put and witnesses called for the state, no evidence whatsoever was led to prove the commission of any offence. Clearly even prior to calling the matter, Potgieter must have been aware that there was no reasonable and probable cause to continue with the prosecution. Prosecution in this regards was an exercise in futility from the beginning which he should have foreseen but proceeded reckless as to the consequences of his conduct. Undoubtedly such prosecution is malicious.

[14] As stated above, the main tussle is on count number two. The standard required of a prosecutor was explained by the court in the following terms:-

“The second defendant should have been satisfied that there was reasonable and probable cause, not just a prima facie case against plaintiff. The prosecutor should interrogate the docket in its entirety and apply his/her mind properly before taking a decision.”[6]

The court emphasised that the prosecutor should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. If the response is in the negative, the prosecution should not commence.[7]

Discussion

[15] In this matter there are quite a number of points demonstrating that there was no honest belief founded on reasonable grounds justifying the institution of the proceedings. It was clear from the beginning that there is no direct evidence and it will turn on the expertise around fingerprints. When the matter commenced, this crucial part of the evidence was not concluded. In fact, the Prosecutor did not even have the fingerprints in the docket. My take is that he proceeded on the basis of the unverified and unconfirmed fingerprints report with the hope that the he will succeed. Perhaps somehow the plaintiff will incriminate himself because there was no credible evidence against him. It cannot be expected of a Prosecutor in his position to conduct litigation with such recklessness. There is more to this matter. Potgieter conceded that he did not consider the statement made by the plaintiff when he made the decision to prosecute. This means he did not make a proper assessment concerning the sufficiency of the evidence at his disposal and its admissibility thereof.

[16] He also conceded that he had to act in haste because of the disgruntled witness namely Gert Hertzog. As Warrant Officer Thuntsa

testified the process of fingerprints could not be complete until he has joined all the dots. Again placing the matter on the roll without verifying the same was a gamble which is reckless in nature. Despite the evidence not linking the plaintiff the matter was kept on the roll until the court below refused further postponements. That led to the discharge of the plaintiff.

[17] Weighing the evidence in totality, the inescapable conclusion is the plaintiff has alleged and proved his case on a balance of probabilities. The plaintiff has mustered the threshold of the requirements entitling him to the relief. The inescapable conclusion

is that the Prosecutor acted without reasonable and probable cause. In addition, there was malice on his part in that he should have foreseen that he was acting in a wrongful manner. Even if I am wrong on the second count, there is no defence on the first one. The only conclusion is that the costs be awarded in favour of the plaintiff.

[18] I make the following order:-

18.1. Judgement on the merits is granted in favour of the plaintiff against the second defendant with costs.

­­__________________

M. A. MATHEBULA, J

On behalf of applicants: Adv. R.J. Nkhahle

Instructed by: Mavuya Attorneys

BLOEMFONTEIN

On behalf of 2nd respondent: Adv. A.I.B. Lechwano

Instructed by: State Attorneys

[1] Minister of Justice and Constitutional Development and Others v Moleko 2008 (3) All SA 47 (SCA) at para 8

[2] 1955 (1) SA 129 (A) at 136 A-B

[3] Joubert v Nedbank Ltd (2011) ZAECPEHC 28 (5 July 2011)

[4] Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) at para 28

[5] 2001 (2) SACR 703 (SCA) at para 19

[6] Patel v National Director of Public Prosecutions and others 2018 (2) SACR 420 (KZD) at para 25

[7] Para 27 supra