Ngqnambi v Minister of Safety and Security and Another (1011/05) [2009] ZAECMHC 21 (4 December 2009)

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no

PARTIES:

XOLANI NGQINAMBI

AND

MINISTER OF SAFETY & SSECURITY

INSPECTOR MSINDWANA

Registrar CASE NO: 1011/05

Magistrate: HIGH COURT, MTHATHA

EASTERN CAPE DIVISION

Supreme Court of Appeal/Constitutional Court:

DATE HEARD: 21 MAY 2008

DATE DELIVERED: 04 DECEMBER 2009

JUDGE(S): MAKAULA, AJ

LEGAL REPRESENTATIVES -

Appearances:

for the State/Plaintiff(s)/Applicant(s)/Appellant(s): MR G. MIZA

for the accused/defendant(s)/respondent(s): MR N. R. MTSHABE

Instructing attorneys:

Plaintiff(s)/Applicant(s)/Appellant(s): GUGULETHU MIZA & CO, MTHATHA

Respondent(s)/Defendant(s): THE STATE ATTORNEY,

C/O MANTYI ATTORNEYS, MTHATHA

CASE INFORMATION -

Nature of proceedings : CIVIL MATTER

Topic: DAMAGES

IN THE HIGH COURT OF SOUTH AFRICA

( EASTERN CAPE: MTHATHA)

CASE NO. 1011/05

In the matter between:

XOLANI NGQINAMBI Plaintiff

and

MINISTER OF SAFETY & SECURITY 1st Defendant

INSPECTOR MSINDWANA 2nd Defendant

JUDGMENT

MAKAULA AJ:

[1] The plaintiff sued the defendants on two claims namely, unlawful arrest and malicious prosecution.

[2] The parties agreed that the merits be separated from quantum. I then made such an order.

A Malicious Prosecution

[3] The plaintiff, in his particulars, claims that on or about December 2002 he was unlawfully detained for 27 months at the instance of the second defendant who at the time was acting within the scope of employment with the first defendant. The plaintiff further claims that at the same time the second defendant wrongfully and maliciously set the law in motion by causing to be laid false charges of murder and robbery against him when he had no reasonable belief in the truthfulness thereof. As a result the plaintiff was detained for twenty seven months, prosecuted for the said offences and was duly acquitted in 2004.

[4] The defendant’s defence in a nutshell is that the plaintiff was never arrested by the second defendant as he was in custody already in respect of another offence. The plaintiff appeared in court on 13 November 2001 and was remanded in custody by the magistrate thus rendering him to be in lawful custody at the instance of the magistrate and not the second defendant.

[5] The plaintiff gave evidence and did not call witnesses. The sum total of his evidence is that he did not know when he was arrested by the second defendant but what he is certain about is that he was at Wellington prison at the time awaiting trial in respect of an unrelated matter. The second defendant arrived in prison and found him in the reception area. He held him by his belt and advised him that he was arresting him for murder and robbery which occurred at Qumbu. He arrested him without a warrant of arrest. The following day he was taken to an identification parade at Qumbu. The witnesses failed to point him out. He was then taken to court where he formally appeared and was remanded in custody as bail was refused. He remained in custody from December 2001 until his acquittal in May 2004.

[6] He stated that at the time of his arrest, the second defendant had no warrant to arrest him and did not have a reasonable and probable cause for believing that he had committed the offence he was subsequently charged with.

[7] It became clear under cross-examination that the plaintiff did not know when he was arrested and acquitted of the case he based his claim on. He was not able to tell how he arrived at the 27 months. However, it is apparent that the plaintiff was ‘arrested’ or requisitioned as Mr Mtshabe prefers to put it, on 12 November 2001 and appeared at the Qumbu Magistrate’s court on 13 November 2001.

[8] The plaintiff alleged that the second defendant was malicious because, as a person in charge of the case, he ought to have known that there was no evidence to prove his guilt. When further quizzed on the matter, he was unable to explain how the second defendant’s conduct was wrongful and malicious. All that he testified to was that the second defendant pursued the criminal prosecution despite the fact that he had not secured any evidence that implicated him and despite the failure of witnesses to identify him at the identification parade. That is as far as his evidence went.

[9] At the close of the plaintiff’s case, Mr Mtshabe, counsel for the defendants, applied for absolution from the instance in respect of both claims. I granted it in respect of malicious

prosecution and refused it in respect of claim 1 with reasons for my decision to follow. It is now the opportune time to deal with those reasons.

[10] In order to establish the claim of malicious prosecution, the plaintiff had to allege and prove that the defendant set the law in motion against him and did so without reasonable and probable cause. He still had to prove that the defendant was actuated by malice. The criminal proceedings must have been instituted upon a charge which is false1. The plaintiff, in order to succeed, would have to establish a want of real and probable cause and the existence of animus injuriandi2. The evidence proved at that stage that the plaintiff had not established malice neither in the form of spite, hatred nor improper

motive on the part of the defendants. He did not say or suggest in any form that the arrest was unwarranted. Smith J in Spiegel v Miller (I.S.C. at 274), as cited in Waterhouse v Shields 1924 CPD 155 at 168 in dealing with malice said improper motive may constitute malice:

“If a man acts in a grossly negligent and reckless way, acting in the furtherance of his own interests without due regard to the rights of others, and careless as to whether he interferes with the liberty of another person or not, I infer that he has been actuated by an improper motive.”

[11] The defendants put to the plaintiff that the arrest, if at all, was as a result of Mbuyiselo Alice Mbodlo and Qaqambile Mtwa who had implicated the plaintiff in their statements which were discovered by the second defendant. This suffices for one to infer

that there was a reasonable and probable cause to believe that the plaintiff might have committed the offence. In the main, nowhere had the plaintiff established malice and lack of reasonable and probable cause.

[12] Reasonable and probable cause has been defined as follows by Hawkins J in Hicks v Faulkener (8 Q.B.D.171), cited with approval by Gardiner J in Waterhouse v Shield 1924 CPD 155 at p162:

“I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.”

[13] The plaintiff could not establish and prove that the defendants had set the law in motion against him. The arrest of the plaintiff by the second defendant cannot be construed as setting the law in motion. The plaintiff has to establish more than that. It is trite that when the law is set in motion in cases of malicious prosecution, the following normally happens: there is a complaint which implicates a person; such a complaint is taken in a form of statement by the police; the latter collects the evidence and once investigations are complete, the matter is referred to a prosecutor or to the Director of Public Prosecutions for a decision whether to prosecute or not; once a decision is taken to prosecute then the accused is charged and taken through the motions of a criminal case. If the buck does not stop with the police, so to speak, who can it be said took the decision to prosecute. In the instant matter, the Public Prosecutor and Minister of Justice and Constitutional Development have not been joined as a party to these proceedings. It is clear in the absence of anything to the contrary, that the second defendant merely did his work as an investigator, and handed the docket over to the Public Prosecutor to deal with it3.

[14] It is my finding that since the plaintiff had failed to establish the essential elements in respect of malicious prosecution, the application in terms of Rule 39(6) of the Uniform Rules had to be upheld. My finding is not based on whether the evidence the plaintiff had adduced would have been finally required to have been established at the end of the trial but that no court could or might acting reasonably find for the plaintiff on the evidence tendered4.

B ARREST AND DETENTION

[15] I dealt with the evidence of the plaintiff when I was dealing with malicious prosecution. The upshot of the evidence of the second defendant regarding the arrest is that he was investigating a case of murder and armed robbery which occurred at Shawbury, in the district of Qumbu. He got information which led him to the plaintiff. He learnt that the plaintiff was an awaiting trial prisoner at Wellington prison in connection with a case that was pending (Myezo matter). On 12 November 2001 the second defendant visited the plaintiff in prison to requisition him to appear in court the following day at Qumbu.

[16] The second defendant contended that he never arrested the plaintiff for the reason that at the time he approached him, he was already in custody in respect of the Myezo matter. All he did was merely to requisition him to appear in court in respect of the matter that led to the current proceedings. At some stage, under cross-examination, Inspector Msindwana conceded that he arrested the plaintiff without a warrant of arrest. But Mr Mtshabe argued that I should not attach any weight to that because Inspector Msindwana did not know the legal meaning of arrest. Second defendant submitted, in the alternative, that if I find that the arrest would

have taken place on 12 November 2001, from 13 November 2001 he was detained at the instance of the magistrate.

[17] The plaintiff testified that he had been arrested even though he was in custody in respect of another matter. He stated that he had been unlawfully arrested because the second defendant did not have an arrest warrant as is required by law. He submitted that the onus was on the defendants to prove the lawfulness of his arrest and subsequent detention. He further submitted that an arrest is governed by legislation to wit section 40(1) (a) to (q) of the Criminal Procedure Act 51 of 1977 (the Act). Mr Miza, counsel for the plaintiff, argued that the defendants had no reasonable and probable cause to suspect that he had committed a schedule 1 offence at the time of arrest, nor did they plead the defence available to them in terms of section 40(1)(b) of the Act and even if they did, they failed to establish the required reasonable suspicion at the time of arrest.

[18] For the reasons that shall follow below, I propose not to deal with the provisions of section 40 of the Act referred to by Mr Miza. The provisions would only be relevant if I find that there was an arrest.

[19] Section 38 of the Criminal Procedure Act 51 of 1977 deals with the methods of securing the attendance of an accused in court. An arrest is one such form. A person is under arrest as soon as the police assume control over his movements5. Furthermore Section 39 of the Act further deals with the manner and effect of an arrest. Of importance for the purposes herein is section 39(3) of the Act6.

[20] It is trite even in common law that the purpose of arrest is to ensure that the suspect will be in court to answer to a charge.7

[21] The facts of the present case are sui generis in that the plaintiff at the time of the purported arrest was in custody in respect of another matter. Now in the light of the above exposition of the law, can it be said that the plaintiff was arrested in the context of section 38 and 39 (3) of the Act. What was the purpose and effect of his arrest if he was already in custody in respect of another matter? I am unable to say the purpose and effect of the visit of Inspector Msindwana in prison was to arrest the plaintiff with the purpose of making sure that he would be in court the following day. The provisions of section 39 (3) are peremptory in that the effect of an arrest should be that the arrestee be in lawful custody and that he should remain as such until lawfully discharged or released from custody. Inspector Msindwana in his testimony stated that he was not arresting the plaintiff because that would not serve any purpose as he was in custody already. What he did was to requisition him to appear before court the next day. It is clear in my mind that the purported arrest of plaintiff while in custody would not make sense if regard is had to the provisions of section 38 and 39 (3) of the Act. There is further no evidence that he was due to be released any time sooner than he was to appear on the subsequent charge for which he has laid a claim. Consequently, I find that he was never arrested.

[22] However, the plaintiff is claiming that his arrest was subsequently followed by his detention for several months. Arrest and detention are distinct. The dividing line between them is very thin but they are different. The Act makes the difference apparent. Section 38 deals with methods of ensuring attendance at court and Section 39 deals with deprivation of liberty or freedom of a person until subsequently discharged or released. Section 50 (1) of the Act on the other hand deals with the procedure after arrest which in essence governs the detention of the arrestee. It deals with the rights of a detained person, how he should be detained, where and when he should be detained. Of importance for the purposes of illustrating the point at hand, would be Section 50 (1)(A) which provides as follows:

“Any person who is arrested with or without warrant for allegedly committing an offence or for any other reason shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.” (My emphasis)

[23] The plaintiff in this matter testified that he was arrested on the day when Inspector Msindwana visited him in prison and detained for several months. However, the plaintiff was in detention at that time in connection with the Myezo matter. It is not clear in the papers and the evidence led during trial for how long was he to remain in custody in respect of the Myezo matter. But it is not his case that he was to be released before he was to appear on 13 November 2006 in respect of the matter giving rise to this case. The fact of the matter is, he was in detention at the time of his purported arrest. The effect of his purported arrest become a nullity for want of detention pursuant to arrest. It is therefore inconceivable that he was under arrest if the purpose and effect of his arrest was defeated by the initial order in respect of the Myezo matter. Even the provisions of section 40 (1)(a) to (9) cannot be applicable as contended by the plaintiff.

[24] The purpose of effecting an arrest is to deprive a person of his liberty or freedom with the intention of making him to appear in court. An arrest has to have that purpose and effect in terms of the law.

[25] In the result plaintiff’s claim for unlawful arrest and detention is dismissed with costs.

_________________________________

M. MAKAULA

ACTING JUDGE OF THE HIGH COURT

HEARD ON : 21 MAY 2008

DATE DELIVERED : 3 DECEMBER 2009

FOR THE PLAINTIFF : MR G. MIZA

INSTRUCTED BY : GUGULETHU MIZA & CO

ECDC BUILDING

50 ELLIOT ROAD

MTHATHA

FOR THE DEFENDANT : MR N. R. MTSHABE

INSTRUCTED BY : THE STATE ATTORNEY

C/O MANTYI ATTORNEYS

MEEG BANK BUILDING

1 Beck’s Theory and Principles of Pleading in Civil Actions, 6th edition, M Daniels, 2002 at pages 345-346

2 Burlett v Smith 1920 AD 106 at 108

3 Waterhouse v Shields supra

4 Rex Shein 1925 AD 6 at 9 where Innes , CJ approved the decision in Gascoyne v Paul and Hunder 1917 T.P.D 170

5 R v Mazema 1948(2) 662 T at 667 approved in State President v Tsenoli; Kirschoff v Minister of Law and Order 1986(4) SA 1150 (A) at 1186 C-D; Isaacs v Minister van Wet en Orde 1996(1) SACR 314 (A) 321 d-c

6 Section 39(3) provides as follows: “The effect of an arrest, shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody”.

7 Macdonald v Khumalo 1927 EDL 293 at 301; Ex Parte Minister of Safety and Security; S v Walters [2002] ZACC 6; 2002 (4) SA 613 at E 619 H-J; Hiemstra’s Criminal Procedure by Albert Kruger 5-2.

7 Macdonald v Khumalo 1927 EDL 293 at 301; Ex Parte Minister of Safety and Security;

S v Walters [2002] ZACC 6; 2002 (4) SA 613 at E 619 H-J; Hiemstra’s Criminal Procedure by Albert Kruger 5-2.