Minister of Police and Another v Mathebula (CIV APP FB07/22) [2023] ZANWHC 128 (30 January 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

CASE NO.: CIV APP FB07/22

Reportable: YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between

THE MINISTER OF POLICE

First Appellant

NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS

Second Appellant

and

MARKS SMUTS MATHEBULA

Respondent

CIVIL APPEAL

CORAM: HENDRICKS JP, PETERSEN J AND SNYMAN J

JUDGMENT

PETERSEN J

Introduction

[1] This is an appeal against the whole judgment and order granted by the court a quo in favour of the respondent on the merits of a claim for damages following the arrest, subsequent detention and alleged malicious prosecution of the respondent.

[2] Leave to appeal was refused by the court a quo. The appeal to the Full Court is with leave of the Supreme Court of Appeal, granted on 01 July 2021.

Chronology of the arrest, detention and prosecution of the respondent

[3] The court a quo provides a useful chronology of the events leading to the arrest, detention and prosecution of the respondent, as follows:

‘[4] The genesis of the Plaintiff’s demise dates back to the evening of 03 April 2016 when he was arrested, without a warrant at his home in Madidi Village, North-West Province by one Constable Keitumetse Sello Gerald Raphuthi (“Constable Raphuthi”), and his colleague, Constable Simon Sekgala (“Constable Sekgala”), both of whom are members of the South African Police Services (“the SAPS”).

[5] The two police constables were at the time stationed at Mabopane Police Station in Gauteng Province, and were acting within the course and scope of their employment with the first Defendant when they arrested the Plaintiff.

[6] They handcuffed the Plaintiff and drove with him to Klipgat Police Station, where they registered police docket Klipgat CAS 16/04/2016, and thereafter detained him at Mabopane Police Station. The Plaintiff remained in detention at the said police station on the evening of 03 April 2016 and the next day in the afternoon, Warrant Officer Ntshabele and his colleague, Warrant Officer Rakuba, who were both stationed at Klipgat Police Station, drove to Mabopane Police Station for the purpose of charging him. On arrival, they charged him and Warrant Officer Rakuba obtained his warning statement.

[7] Warrant Officers Ntshabele and Rakuba decided not to release the Plaintiff on warning. He was not taken to court on Monday, 04 April 2016. The Plaintiff thus remained in detention at Mabopane Police Station until he appeared before the Magistrate’s Court in Ga-Rankuwa on Tuesday, 05 April 2016, the second day following his arrest.

[8] It bears mentioning that the case docket Klipgat CAS 16/04/2016 was assigned to a certain Warrant Officer Sekgororwana for investigation. When the Plaintiff made his first court appearance, he was not recommended for release on bail by the prosecutor, who applied for the postponement of the case for a formal bail application. Consequent thereto the Magistrate remanded the Plaintiff in custody until 18 April 2016 for bail application.

[9] The Plaintiff was however denied bail on the latter date subsequent to a bail application. The case was thereafter routinely postponed for various reasons on more than 8 (eight) occasions, with the Plaintiff making no fewer than 3 (three) attempts to secure his release by applying for bail, but on each occasion, it was opposed by the prosecution and bail was denied.

[10] On 17 August 2016 the Plaintiff’s case was transferred to the Regional Court. He appeared there on 13 September 2016, and thereafter on 04, 12,17, 24, 28 and 31 October 2016.

[11] The Plaintiff remained in detention and appeared again in court on 20 January 2017, 03 March 2017 and finally on 27 March 2017 when his case was withdrawn by the Senior Public Prosecutor, Mr Tebby Thibedi (“Mr Thibedi”). He had been in detention for 11 (eleven) months and 24 (twenty-four) days.’

(My insertion: The respondent was admitted to bail on 24 October 2016 in an amount of R500.00, when an application for bail was brought on new facts. The court a quo erred in discounting this fact on the basis that the pre-trial minutes were silent on this aspect and that it is more probable that the respondent was not granted bail).

Background Facts

[4] The facts relevant to this appeal are in the main common cause and succinctly captured in the judgment of the court a quo. The facts in respect of the first claim in brief, are as follows. The only arresting officer, other than the investigating officers, to testify, was Constable Raphuthi. On 03 April 2016, Constables Raphuthi and Sekgala were on patrol duty when they received a message that a certain Mrs Tlhoaele reported that her daughter Princess and some children were playing with a firearm. They immediately drove to the address of Mrs Tlhoaele at Bheki residential area, which borders Klipgat. On arrival, they found Mrs Tlhoaele and her daughter Princess and interviewed them. Princess informed the police officers that a boy named Otsile brought the firearm. Princess at the request of the police officers proceeded with them to point out where Otsile resided.

[5] The police officers interviewed Otsile upon arrival at his home. Otsile, in turn, reported that the firearm was with the respondent and he accompanied the police officers at their request to point out the respondent’s home. When the police officers arrived at the respondent’s home in Madidi Village, they introduced themselves and explained that they were there to look for a firearm. The respondent denied any knowledge of a firearm and allowed the police officers to search his house. The search of the house only led to the discovery of a small plastic bag containing dagga. The police officers left the house. The respondent followed them as they made their way to an unlocked Toyota Corolla motor vehicle parked at the respondent’s premises. When Cst Raphuthi opened the front passenger door, he found a firearm under the front passenger seat. Otsile was present at all material times. When asked if he had a licence to possess the said firearm, the respondent denied any knowledge of the firearm. The respondent was arrested for the possession of an unlicenced firearm.

[6] The police officers proceeded to Klipgat Police Station with the respondent where a case docket was registered and the exhibits handed to one Warrant Officer Motsepe for registration in the SAP 13 exhibit register. Once done, they proceeded to Mabopane Police Station where the respondent was detained.

[7] Under cross examination, Constable Raphuthi was confronted with the version pleaded in the Defendant’s Amended plea. The version was that the respondent availed the firearm to Otsile for safekeeping and in turn remunerated him for doing so. When pointed out that this version was contradictory to his evidence in chief, that Otsile only informed them that the respondent had the firearm which the children were playing with, Constable Raphuthi could not explain the contradiction. Nothing much turned on the remainder of the cross examination.

[8] The court a quo focused intently on three issues: (1) Why Otsile was not arrested. (2) Why the police officers were working outside of their area of jurisdiction without calling for assistance from Klipgat Police Station; and (3) why Constable Raphuthi handled the firearm with his bare hands. These issues, however, do not advance the case for the respondent and detract from the main issue, which is whether the respondent’s arrest was justified.

[9] On the morning following upon the arrest of the respondent, 04 April 2016, Warrant Officer Ntshabele found the case docket opened for the respondent. Later that day, in the afternoon, he left with Warrant Officer Rakuba for Mabopane Police Station to charge the respondent. At Mabopane Police Station, he duly charged the respondent and did

not recommend any bail, as he was aware that the respondent was a parolee now charged with a serious offence. He also did not recommend

bail as he did not want to endanger the life of Otsile, who was a witness. That was the extent of his involvement in the matter.

[10] Warrant Officer Ntshabele confirmed that he read the statement of Otsile Moeng, obtained and commissioned by Warrant Officer Rakuba. He conceded that the contents of the said statement were contradictory to the evidence of Constable Raphuthi and the pleaded defence of the first appellant. A number of contradictions relevant to the plea and the affidavit of Otsile, were highlighted to him. In particular, the plea recorded that the respondent gave Otsile the firearm for safe-keeping in lieu of remuneration by the respondent. Whilst in the affidavit of Otsile he claimed that he gave the respondent the firearm at his (the respondent’s) house, after stealing it from his grandmother’s house and being paid R500.00 (five hundred rand) for the firearm by the respondent. Otsile, it was further pointed stated in the affidavit that he was instructed by the respondent to place the firearm under the front passenger seat of the unlocked Toyota motor vehicle in the respondent’s premises. A further version was that of Constable Raphuthi, who testified that Otsile had given the firearm to the children to play with; whilst in his own statement, stating that Otsile told him the respondent borrowed him the firearm.

[11] Warrant Officer Rakuba’s evidence in the main corroborated that of Warrant Officer Ntshabele. He obtained the respondent’s warning statement after charging him with possession of an unlicensed firearm and dagga. As with Warrant Officer Ntshabele, he too did not recommend bail for the respondent because he knew him as a parolee. He did not investigate the matter further before charging the respondent as he had already made up his mind that he was going to charge him, based on the statements of Otsile and Constables Raphuthi and Sekgala.

[12] The facts in respect of the second claim as gleaned from the evidence of Mr Thibedi, a Senior Public Prosecutor at Ga-Rankuwa Magistrate’s Court are as follows. When the criminal proceedings against the respondent were instituted on 05 April 2016, he was not based at Ga-Rankuwa Magistrate’s Court. He however established that the charges were formulated on the strength of Otsile’s statement and the evidence found at the Plaintiff’s premises. According to Mr Thibedi he withdrew the charges against the respondent on what he referred to as “a break in the evidence between the Plaintiff and Otsile” when the police case docket was brought to his attention by one Mr Motiang, a public prosecutor, and Constable Raphuthi. After perusal of the contents of the docket he referred it back to the police for further investigation, after he wrote on the front cover of the docket the following: “Withdrawn by PP – Lack of evidence.”

The approach on appeal and the grounds of appeal

[13] The general rule is that a court of appeal will not interfere with a trial court’s findings unless a material misdirection has occurred.

[14] The appellants’ appeal the decision of the court a quo in the Notice of Appeal as follows:

“1. That the Court a quo erred in its assessment and ultimate rejection of the evidence of the witness called on behalf of the first appellant relating to the exercise of a discretion to effect an arrest of the respondent on 3 April 2016 in that:

1.1 The person who stole the firearm from its lawful owner, Otsile Moeng, informed the police that the firearm was in possession of the respondent.

1.2 The police acted on the information and went to the respondent's

residential place where the firearm was indeed found by Constable Raphuthi inside the Toyota Corolla vehicle and underneath the

passenger seat as described by Otsile.

1.3 The court disregarded the fact that the statement of Otsile had already stated that the firearm was hidden in the Toyota Corolla vehicle and in all probabilities, this led the police to search this specific vehicle other than any other vehicle that was under the control of the respondent.

1.4 The fact that Otsile was not arrested by the police despite having made an extra-curial statement admitting to having stolen the firearm is, with respect, irrelevant to the exercise of the discretionary powers by police officers who arrested the respondent.

1.5 The Court a quo erred in placing reliance on the fact that the police officers who arrested the respondent were not stationed within the province where the respondent resides This is, with the greatest respect, a clear misdirection given the powers given to police officers to effect arrest throughout the Republic.

1.6 The court's characterization of different versions relating to the firearm and how it landed with the respondent is, with respect, not correctly linked with the question that ought to have been decided, being whether the police properly exercised their discretionary powers to arrest the respondent.

1.7 In other words, whether the police, who found a firearm hidden inside a motor vehicle that was within the residential premises of the respondent, were justified in effecting the arrest of the respondent after he failed to provide reasonable explanation of such possession.

2. The Court a quo erred in law by failing to recognize the test set out in Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) at para 39 to the effect that the determination of the discretion exercised by the police cannot be determined by high standard of optimal perfection and based on hindsight.

3. The Court a quo further erred in holding that the police who affected the arrest of the respondent had a motive and that they contaminated the handling of the firearm.

3.1 The determination of the merits of the manner in which the arrest was effected should have, with respect been left for determination by the trial court dealing with the criminal matter.

3.2 The arresting police officers could not have been expected to decide on the guilt or otherwise of the respondent at the time of the arrest contrary to the hallowed principles enunciated in the Sekhoto judgment above.

The discretion to detain the respondent

4. The Court a quo erred in fact and in law in holding that the detention of the respondent was unlawful. In this regard:

4.1 The Court a quo should have applied its mind to the fact that the respondent was, at the time of his arrest, under parole and thus the provisions of section 60(11)(b) of the Criminal Procedure Act, 1977 were applicable in relation to his bail.

4.2 The Court a quo should have noted that in such circumstances, a Schedule I offence is treated as a Schedule 5 offence for purposes of bail where the arrested person has a previous conviction of a Schedule 1 offence and thus the respondent had to appear in court and bore the onus to demonstrate that it was in the interests of justice that he be given hail.

Detention beyond first appearance in court

5. The Court erred in fact and in law by rejecting the evidence of the Senior Public Prosecutor to the effect that the respondent applied for bail on new facts and was duly granted bail in the amount of R500 on 24 October 2016 in that:

5.1 The Court did not have any contrary court entry other than the one upon which Mr Thibedi, the witness for the first and second appellants, testified upon.

5.2 The Court erred in holding that the Public Prosecutor and the Magistrate who dealt with the bail application should have testified.

6. The Court a quo erred in holding that the appellants were liable for the entire period of detention of the respondent under circumstances, where:

6.1 The evidence established that the respondent was granted bail on 24 October 2016;

6.2 There was no evidence led which established that the police officers or prosecutor intentionally and/or negligently pursued the further detention of the respondent under circumstances that render them liable for the entire period of detention; and

6.3 The Court a quo incorrectly applied the test established in holding the police and prosecution liable for the period beyond what is termed "judicial detention" of the respondent.

AD FIRST AND SECOND APPELLANT

Malicious prosecution not established

7. The Court a quo erred in its assessment of the facts and application of the law relating to malicious prosecution in failing to hold that the criminal case against the respondent was provisionally withdrawn and was in fact reinstated.

7.1 The Court failed to determine that the charges against the respondent were not withdrawn in terms of section 6(b) of the Criminal Procedure Act;

7.3 That the evidence of Mr Thibedi and that of the respondent established that the case against the respondent had been reinstated at the time of the trial.

8. The Court erred in its assessment of the facts and application of the law in holding that the first appellant, Minister of Police, was jointly liable with the second appellant, Director of Public Prosecutions, in the claim for malicious prosecution in that:

8.1 The respondent never issued a notice contemplated, in section 3 of the Institution of Legal Proceedings against certain Organs of State Act, No 40 of 2.002 against the first appellant relating to a possible claim for malicious, prosecution;

8.2 The respondent's particulars of claim did not set out and/or plead a claim for malicious prosecution against the first appellant and as such the first appellant never defended any such claim in its plea; and

8.3 There was no evidence led which established an unpleaded claim for malicious prosecution against the first appellant.

9. The Court erred in its discretion to award costs against the appellants.”

Discussion

Claim 1:

[15] In respect of the first claim, the first appellant’s defence was that the arrest was lawful as it was executed within the ambit of section 40(1)(b) of the CPA, which provides that:

‘(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.’

[16] In accordance with section 40(1)(b) of the Criminal Procedure Act four (4) jurisdictional facts or requirements must exist before an arrest without a warrant can be effected. These jurisdictional facts or requirements were explained in Duncan v Minister of Law and Order[1] and re-iterated in Minister of Safety and Security v Sekhoto and Another[2] as follows:

“The so called jurisdictional facts which must exist before the power conferred by s 40(1)(b) of the present Act may be invoked, are as follows:

1) The arrestor must be a peace officer.

2) He must entertain a suspicion.

2) It must be a suspicion that the arrestee committed an offence referred to Schedule 1 to the Act.

4) The suspicion must rest on reasonable grounds.

If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, i.e., he may arrest the suspect.”

(my emphasis)

[17] At the heart of the arrest of the respondent lies the question whether or not Constable Raphuthi entertained a suspicion that the respondent was in possession of an unlicenced firearm and had therefore committed an offence referred to in Schedule 1 of the Criminal Procedure Act and whether or not that suspicion rested on reasonable grounds. This appeal begs the question whether or not the court a quo firstly assessed the evidence of Constable Raphuthi correctly and secondly whether the court a quo misdirected itself by embarking on an assessment of the evidence of what ultimately would have been issues to be decided at a criminal

trial.

[18] It is apposite to revisit the authorities that have developed in our law on the test for suspicion. In the unreported judgment of Masemola v Minister of Police (1469/2018) (7 December 2022) in this Division, I stated as follows in this regard:

“[27] The test for a suspicion resting on reasonable grounds has engaged our Courts and many other jurisdictions on a regular basis. In R v Van Heerden[3], Galgut AJ (as he then was) was engaged on the provisions of section 24(1)(c) and 37 of the Criminal Procedure Act 56 of 1955, which had a similar provision to section 40 of the present Criminal Procedure Act. After referencing section 24(1)(c) of Act 56 of 1955 which read that: ‘Any private person may, without warrant, arrest any person whom he has reasonable grounds to suspect of having committed an offence mentioned in the First Schedule.’, he held as follows in respect of the words “reasonable grounds to suspect”:

“An arrest is clearly an assault, and the appellant can only justify that assault if he shows, as stated in sec. 24 (1) (c) that he had ‘reasonable grounds to suspect.’ It is not sufficient for him to show that he did in fact have a suspicion. ‘Suspect’ and ‘suspicion’ are words which are vague and difficult to define. Dictionary meanings and decided cases were quoted to the Court as to the meaning of these words. Save for saying that these suggest that suspicion is apprehension without clear proof I do not intend to deal with the meaning of ‘suspect’, because it seems to me that the words ‘reasonable grounds’ qualify the suspicion required by the section. These words must be interpreted objectively, and the grounds of suspicion must be those which would induce a reasonable man to have the suspicion.”

(my emphasis)

[28] The ratio in Mabona v Minister of Law and Order and Others[4] resonates with the facts of the present matter. There the Court said:

“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 goods 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, i.e. 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. 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.”

[29] In Minister of Law and Order v Kader[5], the Court said the following in respect of the question of suspicion, that it ‘is a state of conjecture or surmise where proof is lacking. . . . Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end’.

[30] The principles in the aforesaid authorities are succinctly enunciated in Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017), where Lamont AJA said:

“[8] ... The issue to be decided is whether or not Inspector Nel had a reasonable suspicion that the respondent had committed the offence of murder. If he had held such a suspicion then the arrest would have been lawful by reason of the provisions of section 40(1)(b) of the Criminal Procedure Act 51 of 1977.

[9] In Shabaan Bin Hussein and Others v Chong Fook Kam & another [1969] 3 All ER 1627 it was held that a suspicion ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end’. (Powell NO & others v Van der Merwe NO & others 2005 (5) SA 62 (SCA) para 36: Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA).)

[10] The suspicion of the arresting officer is reasonably held if, on an objective approach, the arresting officer has reasonable grounds

for his suspicion. Once the required suspicion exists an arresting officer will be vested with a discretion to arrest, which he must exercise rationally. (Minister of Safety and Security v Sekhoto and another [2010] ZASCA 141 para 39; 2011 (5) SA 367 (SCA).)

(my emphasis – case citations added)

[31] In the recent judgment of Biyela v Minister of Police[6], Musi AJA elaborated on the question of a reasonable suspicion, in the context of hearsay evidence as follows:

“[33] The question whether a peace officer reasonably suspects a person of having committed an offence within the ambit of s 40(1)(b) is objectively justiciable. It must, at the outset, be emphasised that the suspicion need not be based on information that would subsequently be admissible in a court of law.

[34] The standard of a reasonable suspicion is very low. The reasonable suspicion must be more than a hunch; it should not be an unparticularised suspicion. It must be based on specific and articulable facts or information. Whether the suspicion was reasonable, under the prevailing circumstances, is determined objectively.

[35] What is required is that the arresting officer must form a reasonable suspicion that a Schedule 1 offence has been committed based on credible and trustworthy information. Whether that information would later, in a court of law, be found to be inadmissible is neither here nor there for the determination of whether the arresting officer at the time of arrest harboured a reasonable suspicion that the arrested person committed a Schedule 1 offence.

[36] The arresting officer is not obliged to arrest based on a reasonable suspicion because he or she has a discretion. The discretion to arrest must be exercised properly. Our legal system sets great store by the liberty of an individual and, therefore, the discretion must be exercised after taking all the prevailing circumstances into consideration.

[38] I, therefore, agree with the majority’s characterisation of the issues and its conclusion that a reasonable suspicion can, depending on the circumstances, be formed based on hearsay evidence, regardless of whether that evidence is later found to be admissible or not. Furthermore, I agree with the conclusion that the court of first instance erred in its conclusion that the police officers could not form a reasonable suspicion because such suspicion was based on inadmissible hearsay evidence.”

[19] It is against the aforesaid authorities that this Court must determine whether the arrest of the respondent by Constable Raphuthi, objectively considered was lawful and justified. Constable Raphuthi, a peace officer, reacted to a report about children who were playing with a firearm. After interviewing Mrs Tlhoaele and her daughter Princess it was reported that the firearm was with Otsile. This led Constable Raphuthi and his colleague to Otsile, who in turn reported that the firearm was with the respondent. Constable Raphuthi on following the trail of information

entertained a reasonable suspicion that the respondent was in possession of an unlicenced firearm, a Schedule 1 offence. A firearm

was ultimately found in a Toyota Corolla motor vehicle parked at the premises of the respondent. The arrest of the respondent followed on the information provided by Otsile. The circumstances under which the firearm was found, in a motor vehicle parked at the respondent’s

premises and not on his person, does not detract from the circumstances and information leading to his arrest.

[20] The sentiments expressed in Biyela v Minister of Police (1017/2020) [2022] ZASCA 36 (01 April 2022) by Musi AJA at paragraphs [33] – [35] are apposite in the present appeal. The court a quo misdirected itself by assessing the evidence of the arrest with what would subsequently be admissible in a criminal trial court.

The issues relevant to a criminal trial in due course, which the court a quo fixated on, inclusive of the handling of the firearm by Constable Raphuthi, was irrelevant for purposes of determining the lawfulness of the arrest. It was further irrelevant, for purposes of the arrest, what Otsile said in a subsequent statement to Warrant Officer Rakuba, who was not the arresting officer. The reasonable suspicion entertained by Constable Raphuthi was not premised on a hunch, but on specific information imparted to him by Mrs Tlhoaele and her daughter Princess and followed up further with Otsile, which led to the discovery of a firearm in a motor vehicle at the premises under the control of the respondent. At the time of the arrest, there was nothing to suggest that the information was not credible or trustworthy. Objectively determined, the suspicion entertained by Constable Raphuthi at the time of arrest meets the test of being reasonable and as held decisively in Biyela “…Whether that information would later, in a court of law, be found to be inadmissible is neither here nor there for the determination of whether the arresting officer at the time of arrest harboured a reasonable suspicion that the arrested person committed a Schedule 1 offence.”

[21] The court a quo in dealing with issues related to the police officers working outside of their assigned district, the contradictions alleged to exist between Otsile’s report to Constable Raphuthi and in his statement, are all irrelevant to the facts which existed at the time of the arrest of the respondent which gave rise to the arrest. Those issues need not therefore detain this Court.

[22] That the respondent’s arrest without a warrant was justified and therefore lawful, is beyond dispute. Constable Raphuthi’s suspicions were reasonable in the peculiar circumstances of this matter. The appeal on the first claim that the first appellant is liable for the alleged wrongful, unlawful and unjustified arrest of the respondent should accordingly be upheld.

[23] The court a quo made much of Warrant Officers Ntshabele and Rakuba’s decision not to release the respondent on warning and not being taken to court on Monday, 04 April 2016 which caused him to remain in detention at Mabopane Police Station until his appearance in court at the Ga-Rankuwa Magistrates Court on Tuesday, 05 April 2016. The undisputed evidence is that the respondent was on parole and by implication had a previous conviction which would impact on the question of bail by probably bringing same within the ambit of

section 60(11)(b) and Schedule 5 of the Criminal Procedure Act 51 of 1977. Nothing therefore turns on the detention between the arrest of the respondent and his appearance in court.

[24] That brings me to the finding of the court a quo that the actions of the police and prosecution jointly brought about the post court appearance detention of the respondent. Nothing in the evidence before the court a quo suggests that the police and prosecution either intentionally or negligently caused the further detention of the respondent once he appeared in court. Ironically, the Magistrates, acting under the nominal capacity of the Minister of Justice and Correctional

Services, who postponed the respondent in custody at all relevant times and when he applied for bail initially, were not cited as defendants. The contention of the respondent that the police and prosecution intentionally and/or negligently pursued the further

detention of the respondent seeks to bypass the non-joinder of the Magistrates and Minister. In the absence of evidence which supports

the respondent’s contention, the sentiments expressed in De Klerk v Minister of Police[7] are apposite:

“[66] As the Appellate Division in Kader explained in relation to section 50(1) of the Criminal Procedure Act:

[67] In Lawyers for Human Rights, this Court made it clear that the intervention of a court when a person is detained forms an integral part of the safeguards guaranteed to detained persons by the Constitution. The purpose of the 48-hour window for an arrested person to be brought before a court, as envisaged in section 35(1)(d) of the Constitution, is to empower and oblige a judicial officer to ensure that any infringement of an accused’s rights is rectified and that their rights regrading bail are realised. Ultimately, it is a constitutional imperative geared at preventing arbitrary detention and deprivations of liberty.

…

[25] The only basis on which the police and in the present appeal the prosecution included, could be held liable, is if the application of the principles of legal causation points to such liability. On the peculiar facts of the present matter, the evidence does not prove any causal link between the conduct of the police and prosecution to the detention of the respondent once he appeared in court. All available evidence was presented at the initial bail application and the presiding magistrate refused bail.

Claim 2: Malicious Prosecution

[26] The court a quo held both appellants liable on the second claim for malicious prosecution.

[27] I turn to the basis on which the court a quo found the second appellant liable for malicious prosecution. The court a quo found that various public prosecutors who dealt with the case failed to apply their minds to the statements in the police case docket and instead routinely postponed the case and opposed bail. Further, that the public prosecutors elected not to put the charges to the respondent to plead thereto and adduce the evidence of the state witnesses, to bring the matter to finality. The failure by the prosecution to charge Otsile for possession of the unlicenced firearm also resonated with the court a quo. All these reasons, the court a quo found pointed to malice on the part of the public prosecutor/s and accordingly found that on a balance of probabilities, it was proven that there was no reasonable and probable cause to institute criminal proceedings against the respondent.

[28] In respect of the first appellant’s liability for malicious prosecution the court a quo correctly identified that the respondent’s claim for malicious prosecution was directed at the second appellant. The court a quo, however, then reasoned that the evidence adduced by the respondent indicated that he was seeking delictual damages from both appellants arising from the same unlawful acts of the police and the public prosecutors who handled the case. The court a quo re-iterated that since it had made a determination that the police officers who arrested the respondent, as well as those who charged him and perpetuated his further detention and thereby ratified their unlawful conduct, acted with the full consciousness that there existed no credible evidence against the respondent from the statements in the police docket. On this basis the court a quo found that there was no doubt that it was the said police officers who set the law in motion and instigated the prosecution of the respondent. Notably this was not the case pleaded by the respondent in the pleadings.

[29] The court a quo, notwithstanding the fact that the respondent had not pleaded liability of the first appellant for malicious prosecution, acted mero motu in finding the first appellant liable for malicious prosecution. As justification for this finding, the court a quo reasoned as follows: It correctly recognized that “… it is trite that the importance of pleadings should not be unduly magnified.” The court a quo went on to hold the view that it was not bound by the pleadings if the parties at trial enlarge the issues, relying on Wynberg Municipality v Dyer 1920 AD 443 and Shill v Milner 1937 AD 101. Finding that since both parties were before court and legally represented by two competent counsel, who had an opportunity to present evidence on both claims and cross-examine thereon and no prejudice to the first appellant, the court a quo found this sufficient to entertain the evidence in respect of the purported liability of the first appellant for malicious prosecution.

[30] The court a quo after considering the evidence of the four police officers who testified relied on Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) to bring their alleged conduct within the four corners of this judgment where Fourie AJA stated as follows:

“It has often been stressed by our courts, that the duty of a policeman who has arrested a person for the purpose of having him or her prosecuted, is to give a fair and honest statement of the relevant facts to the prosecutor, leaving it to the latter to decide whether to prosecute or not. See: Prinsloo and Another v Newman 1975 (1) SA 481 (A) at 492G and 495A and Minister for Justice and Constitutional Development v Moleko, supra, at para 11. In Carmichele v Minister of Safety and Security and Another 2001(4) SA 938 (CC) para 63, it was held that the police has a clear duty to bring to the attention of the prosecutor any factors known to them relevant for the exercise by the Magistrate of his discretion to admit a detainee to bail.”

[31] The court a quo correctly identified the test for malicious prosecution as follows in its judgment:

“[69] Malicious prosecution is an abuse of the process of the court by intentionally and wrongfully setting the law in motion on a criminal charge. In order to succeed with the claim, the Plaintiff must show:

69.1. that the Defendant instituted or instigated the proceedings;

69.2. that the Defendant acted intentionally or with animus iniuriandi;

69.3. that the Defendant acted without reasonable and probable cause;

69.4. that the Defendant was actuated by an improper motive or malice;

69.5. that the proceedings terminated in the Plaintiff’s favour; and

69.6. that the Plaintiff suffered damage.

[70] The case of Minister of Justice and Constitutional Development v Moleko 2009 (2) SACR 585 (SCA), is more relevant in that the SCA reaffirmed the law that a claim for malicious prosecution lies under the actio iniuriandi. It was held that animus iniuriandi means that the prosecuting authority, while being aware of the absence of reasonable grounds for the prosecution, directs his or her will to prosecuting the Plaintiff. If no reasonable grounds exist, but the prosecutor honestly believes either that the Plaintiff is guilty, or that reasonable grounds are present, the second element of animus iniuriandi namely consciousness of wrongfulness, will be lacking. The court further stated the following with regard to the element of animus iniuriandi:

“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).””

[32] Each of the requirements for malicious prosecution must be met and it must be underscored in the context of the present appeal that malice and lack of probable cause are two distinct requirements.

[33] The requirement of an absence of reasonable and probable cause is central to the court a quo finding both appellants liable for malicious prosecution. The absence of reasonable and probable cause was formulated as follows in Beckenstrater v Rottcher and Theunissen[8]:

“When it is alleged that a defendant had no reasonable cause for prosecuting… this means 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 in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause.”

[34] In Relyant Trading v Shongwe[9] the following was said:

‘Malicious prosecution consists in the wrongful and intentional assault on the dignity of a person comprehending also his or her good name and privacy. The requirements are that the arrest or prosecution be instigated without reasonable and probable cause and with “malice” or animo iniuriarum. Although the expression “malice” is used, it means, in the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and 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.”

[35] In Minister of Justice and Constitutional Development and Others v Moleko[10] the SCA expressed itself further on the issue of malice as follows:

“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 consequence 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] Since the court a quo essentially founded the first appellant’s liability for malicious prosecution on the issue of causality, the sentiments expressed in Lederman v Moharal Investments (Pty) Ltd[11] are apposite:

“Inherent in the concept “set the law in motion”, “instigate or institute the proceedings”, is the causing of a certain result i.e. a prosecution, which involves the vexed question of causality. This is especially a problem where, as in most instances, the necessary formal steps to set the law in motion have been taken by the police and it is sought to hold someone responsible for the prosecution. Amerasinghe, Aspects of the Actio Iniuriarum in Roman Dutch Law, recognises that “the problem is essentially one of causation” and suggests (at p 20):

“The principle is that where a person acts in such a way that a reasonable person would conclude that he (i.e. the defendant) is acting clearly with a specific view to a prosecution of the plaintiff and such prosecution is the direct consequence of that action, that person is responsible for the prosecution.”’

[37] In terms of law of general application, the authority to institute criminal proceedings vests in the National Prosecuting Authority. In this regard section 20 of the National Prosecuting Authority Act 32 of 1998 provides that:

“20 Power to institute and conduct criminal proceedings

(1) The power, as contemplated in section 179 (2) and all other

relevant sections of the Constitution, to-

(a) institute and conduct criminal proceedings on behalf of the State;

(b) carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and

(c) discontinue criminal proceedings, vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the Republic.

[38] In exercising the aforesaid power of instituting prosecutions, prosecutors are bound by the Code of Conduct for Members of the National Prosecuting Authority issued under section 22(6) of the National Prosecuting Authority Act, 1998 published in Government Gazette No. R. 1257 of 29 December 2010. Paragraph D.1 (c) and (d) is apposite:

“D. ROLE IN ADMINISTRATION OF JUSTICE

1. Prosecutors should perform their duties fairly, consistently and expeditiously and –

(c) give due consideration to declining to prosecute, discontinuing criminal proceedings conditionally or unconditionally or diverting criminal cases from the formal justice system, particularly those involving young persons, with due respect for the rights of suspects and victims, where such action is appropriate;

(d) in the institution of criminal proceedings, proceed when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and not continue a prosecution in the absence of such evidence; …”

[39] The evidence at most demonstrated that the prosecution instituted the charge against the respondent. The court a quo made a general finding that all the prosecutors who dealt with the case failed to apply their minds to the matter and opposed bail. Nothing in the evidence suggests that when the case was enrolled by the initial prosecutor that he acted without reasonable and probable cause for initiating the prosecution. There is further no indication that the prosecutors either individually or as a collective were actuated by improper motives or malice. The failure to prosecute Otsile was also irrelevant.

[40] The court a quo conflated the decision not to recommend bail for the respondent and what would ultimately be required of a trial court to decide on the merits of the charge of possession of an unlicensed firearm, and the later withdrawal of the charge as sufficient causality to hold the first and second appellants’ liable.

[41] The facts of this matter are distinguishable from Tyokwana, when it is accepted that the arrest was justified and lawful and that all material facts were placed before a Magistrate who initially

refused bail for the respondent. The court a quo’s reliance on Tyokwana was a misdirection predicated on its finding of facts relevant to the arrest of the respondent and what the prosecution and police could have and should have been done, which are issues which, in the main, would have been relevant only for consideration in a criminal trial in due course.

Conclusion

[42] The appeal in respect of claims 1 and 2 stand to be upheld.

Costs

[43] The appellants have been successful in the prosecution of the appeal on both claims and are entitled to the costs of the appeal.

Order

[44] In the result, the following order is made:

(i) The appeal is upheld with costs.

(ii) The order of the court a quo is set aside and replaced with the following order:

“(a) The plaintiff’s claims for unlawful arrest and detention (claim 1) and malicious prosecution (claim 2) are dismissed.

(b) The plaintiff is to pay the costs of action.”

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT

I agree.

F M M SNYMAN

APPEARANCES

COUNSEL FOR APPELLANTS: ADV. OK CHWARO Instructed by: State Attorney COUNSEL FOR RESPONDENT : ADV. MAPHUTHA Instructed by: RA Mosweu Attorneys c/o Mokhetle Inc. DATE OF HEARING: 28 SEPTEMBER 2022 DATE OF JUDGMENT: 30 JANUARY 2023

[1] [1986] ZASCA 24; [1986] 2 All SA 241 (A).

[2] 2011 (1) SACR 315 (SCA); [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA).

[3] 1958 (3) SA 150 (T) at 152 C-E

[4] 1988 (2) SA 654 (E) at 685 E-H.

[5] 1991 (1) SA 41 (A) at 50H.

[6] (1017/2020) [2022] ZASCA 36 (01 April 2022) at paras [33]- [36] and [38].

[7] 2020 (1) SACR 1 (CC) at paras [66] and [67].

[8] 1955 (1) SA 129 (A).

[9] 2007 (1) All SA 375 (SCA) paras 5 and 14.

[10] (131/07) [2008] ZASCA 43; [2008] 3 All SA 47 (SCA) ; 2009 (2) SACR 585 (SCA) (31 March 2008)

[11] 1969 (1) SA 190 (A) at 197A-B