Shabalala v Minister of Police and Another (13/37982) [2018] ZAGPPHC 905 (1 November 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO.: 13/37982

In the matter between:

S B SHABALALA Plaintiff and THE MINISTER OF POLICE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First defendant Second defendant

JUDGMENT

VAN DER WESTHUIZEN, J

[1] The plaintiff, Sabelo Peter Shabalala, instituted an action against the defendants for damages suffered as a result of his unlawful arrest and subsequent detention and the malicious prosecution of him until the charges against him were provisionally withdrawn. The further grounds upon which the plaintiff relied for compensation for the damages suffered included:

(a) malicious arrest;

(b) malicious detention; and

(c) negligent prosecution.

[2] This matter has taken some time to come to fruition. After the leading of evidence, the parties sought time to prepare written argument. The matter was postponed for that reason. It took some time to arrange a suitable date for the argument to be heard. Although the matter was heard in the Gauteng Local Division and due to allocated duties, argument was by agreement heard in the Gauteng Division, Pretoria. Both counsel are thanked for accommodating argument to be heard in Pretoria.

[3] I have given much consideration of the evidence led, the able argument of counsel and the most helpful written arguments presented by them. In particular Mr Kerr-Philips is commended for his analysis of the facts, the law and the arguments on the issue of extending the law to acknowledge the need for negligent prosecution. However, as will appear below, this matter does not lean towards a fresh consideration of the issue of negligent prosecution and the extension of the law in that regard. In the present matter, argument on that issue amounts to an attack on the legal system for failing innocent

parties due to the inadequacies of the system and does not address the real issues in dispute.

[4] The defendants pled that the arrest without a warrant and subsequent detention of the plaintiff, was justified and lawful and that the members of the South African Police Services were duty bound to act reasonably in terms of the provisions of section 13 of the South African Police Services Act, 68 of 1995 and section 205 of the Constitution of the Republic of South Africa, 1996. In support of the plea of lawful arrest and lawful detention, the defendants rely on the provisions of section 40(1)(b) of the Criminal Procedure Act, 51 of 1978 (CPA). The defendants further pled that the plaintiff was

lawfully detained after his first court appearance and subsequent appearances thereto by virtue of the fact that the plaintiff’s

further detainment was ordered by a competent court with jurisdiction taking into account the relevant provisions in respect of bail being granted.

[5] The plaintiff testified in respect of his claim for damages. No further witnesses were called in support of the plaintiff’s claim.

[6] The defendants led the evidence of a number of witnesses:

(a) Ms Joseph, the Control Prosecutor who enrolled the matter and charges against the plaintiff;

(b) Mr Mhaga, the prosecutor;

(c) Mr Sefoloshe;

(d) Mr Tsovakara, the co-arresting officer;

(e) Mr Maponya, eye witness

(f) Mr Malulekwa, subsequent investigating officer;

(g) Constable Malakowane, co-arresting officer, who has since passed away. His affidavit was introduced as an exhibit in terms of the provisions of section 3(c)(i) - (vii) of the Law of Evidence Amendment Act, 45 of 1988, and further reliance was placed upon part VI of the Civil Evidence Act, 1965 as well as sections 221 and 222 of the Criminal Procedure Act, 51 of 1978 (CPA).

[7] The following facts are common cause between the parties:

(a) the plaintiff was arrested on 31 August 2012 without a warrant by members of the South African Police Services acting within the course and scope of their employment with the first defendant;

(b) the plaintiff was detained initially at Jeppe Police Station and thereafter at the Johannesburg Prison;

(c) the plaintiff was taken to the magistrates’ court on 3 September 2012;

(d) the plaintiff was formally charged on 3 September 2012 and the case was remanded;

(e) the court ordered the further detainment of the plaintiff on 3 September 2012;

(f) the plaintiff’s continued detainment was subsequently ordered by the court at each appearance until his release on 14 May 2013 when the charges against him were provisionally withdrawn.

[8] It is further common cause that at the first appearance on 3 September 2012, the plaintiff requested legal representation. He was granted Legal Aid and an attorney, who was present in court, was immediately appointed. The plaintiff effectively had legal representation since his first court appearance and at all subsequent appearances.

[9] The plaintiff did not provide a fixed address to the police after his arrest and further indicated that he was unemployed, but washed cars from time to time. On 3 September 2012, the plaintiff indicated to the court that he is unemployed and lives somewhere in Orange Farm. He could not recall whether he gave a specific address to the court. Under cross-examination he conceded that at the time of his arrest he did not have a fixed address. The plaintiff would sleep on the streets around Kazerne Taxi Rank, Johannesburg. Sometimes the ladies who had a vendor shop at the Taxi Rank would allow him to sleep in their shop. At other times he may go to Orange Farm. It is clear that the plaintiff had no fixed address when he was arrested and it remained so at his first appearance at court. The plaintiff’s choice of “residence” depended upon prevailing circumstances at any given time.

[10] It is trite that an arrest and detention of a person is prima facie wrongful. The wrongfulness of an arrest and detention lies in the wrongful depravation of a person’s liberty. Once arrest and detention are admitted, the onus is on the defendant to prove that the arrest and the subsequent detention were lawful.[1]

[11] If the arrest is unlawful, then the subsequent detention is also unlawful. When an arrest is proven to be lawful, the particular circumstances surrounding the subsequent detention would determine whether the subsequent detention is lawful.

[12] Section 50 of the CPA stipulates that an arrestee is to be brought as soon as possible to a police station in the event of an arrest without a warrant. It is further stipulated that as soon as reasonably possible, an arrestee is to be advised of his or her rights to institute bail proceedings. Section 59 of the CPA provides that an arrestee may be released on bail before his first court appearance under certain circumstances, the so-called police bail, provided that the arrestee deposits the amount determined in respect of the bail.

[13] Section 40(1)(b) of the CPA provides as follows:

“A peace officer may without a warrant arrest any person –

(a) …;

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;”

[14] The plaintiff testified in chief that on 31 August 2013 he was at the Kazerne Taxi Rank washing cars. On his way to lunch, a maroon Vokswagen Golf arrived and three people alighted therefrom. All were dressed in plain clothes. He testified that two of the persons in the vehicle were police officers. He was with two other persons by the name of Chicco and Limba respectively. The plaintiff testified that he knew the two to be police officers as they identified themselves as such, whilst one of the two police officers presented a card, presumably an identity card. He was advised that they were there to arrest him. The plaintiff was asked about the whereabouts of one Small. The said person was known to the plaintiff but he was unaware where Small was. He was told to get into the car and on his inquiry as to the reason, he was told that he is being arrested. The plaintiff further inquired the reason for his arrest and was told that he “was burning, meaning … that I am an arsonist”.

They drove immediately to the Jeppe Police Station. The plaintiff was seated at the back of the vehicle with the third person who was known to him. He saw that person at the Taxi Rank, along the road and at the shops near the Taxi Rank. At the Jeppe Police Station, he was handed a document setting out his rights. He also read on that document that the charge was one of arson. He was escorted to the cell by a different uniformed police officer who had handed the “document of rights” to him. He found other persons inside the cell who had also been arrested on other charges. The plaintiff testified that he had his cellular phone with him and contacted his sister who apparently could not come. His phone was later taken by other inmates. The plaintiff commented on the bad conditions of the cell in which he was detained. He was detained from the Friday to the Monday when he was taken to court. After his first court appearance, the plaintiff was detained at the Johannesburg Prison until his release in 2014. With reference to documents, contained in the docket, that he was referred to, he denied that his signature appeared thereon. In court the plaintiff provided a “sample” of his signature. This evidence was not supported by expert evidence and the probative value thereof is to be considered at the appropriate stage.

[15] In cross-examination the plaintiff made the following concessions:

(a) That the prosecutor instructed the investigating officer to ascertain whether the plaintiff had an address and that it should be verified and that it was so endorsed on the docket;

(b) That he himself did not tender an address to either the police or the court at his first appearance;

(c) That he had testified that he did not ask for bail as he was “the breadwinner (although he was unemployed) and no one else could pay bail”.

(d) That neither he nor his attorney asked for bail as he had no fixed address;

(e) That at his first appearance at court on 3 September 2012 a legal representative from Legal Aid, who was in court at the time, was summarily appointed to assist him;

(f) That at each subsequent appearance where his legal representative was present, no application for bail was instituted and that consent was given to each and every postponement of the matter and that neither he nor his next of kin could afford to pay bail;

(g) That his nickname at the Taxi Rank was Biyani due to his hairstyle, when he cut his hair. Only a tuft of hair remained on his head that resembled that of a rhinoceros’ horn, Biyani meaning rhinoceros and that he came from Bergville;

(h) That the complainant in the charge of arson had pointed him, the plaintiff, out to the police officers at the Taxi Rank where and before he was arrested;

(i) That he, the plaintiff, knew the complainant at least by sight, as testified in chief, and testified under cross-examination that the complainant, Mr Maponya, knew the plaintiff by sight and by his nickname;

(j) That the prosecution had not made a mistake in prosecuting him, but that it was the complainant, Mr Maponya, who had made the mistake;

(k) That the only reasons why he instituted an action against the defendants were the duration of his detention and the conditions under which he was detained.

[16] From the foregoing concessions it is clear that:

(a) the plaintiff was pointed out to the police by Mr Maponya, who was the complainant, that they knew each other at least from sight and that Mr Maponya knew him by his nickname and where the plaintiff came from (Bergville);

(b) the police officers had identified themselves as police officers;

(c) the plaintiff was told he was being arrested and the reason for his arrest, i.e. committing arson;

(d) the plaintiff willingly entered the unmarked police vehicle and was immediately taken to the police station;

(e) the plaintiff was handed a document explaining the charge and his rights which included the right to bail etc.;

(f) the plaintiff had no fixed address at the time of arrest and advised the police thereof;

(g) the plaintiff was in a position to, and in fact did, notify his next of kin that he had been arrested;

(h) the plaintiff was unemployed and that neither he nor his family could afford to pay any amount of bail that might have been set and further that he did not ask for bail for those reasons;

(h) the plaintiff was brought before court within 48 hours after his arrest.

[17] It follows from the aforesaid concessions that there was, at least, substantial compliance with the procedure to be followed during and after the arrest.

[18] The only issue then to be considered is whether the police was entitled to arrest the plaintiff without a warrant.

[19] It is common cause that a peace officer may effect an arrest without a warrant as stipulated in section 40(1)(b) of the CPA. That section stipulates the requirement of a reasonable suspicion of the commission of an offence listed in Schedule 1 of the CPA.

[20] In the present instance the offence suspected of having been committed is that of arson. The offence of arson is specifically listed in Schedule 1 of the CPA.

[21] A report was made to the police that two perpetrators had committed the offence of arson in that a number of shacks were set alight. The complainant, Mr Maponya, was an eye witness to the act of arson. He made a statement under oath wherein he named one of the two perpetrators whom he knew. He identified and specifically named the plaintiff as one of the perpetrators. A second eye witness also made a statement and identified the other perpetrator as one Small.

[22] On the morning of 31 August 2012, the complainant in the arson incident, Mr Maponya, attended at the Jeppe Police Station and made a further report that he knew where one of the perpetrators usually hung out. He accompanied the Police Trace Team and directed them to Kazerne Taxi Rank. There he pointed the plaintiff out to the police and identified him as Biyani. The latter confirmed that he was known as Biyani and that he knew Small. However, the plaintiff was not aware of the whereabouts of Small. The police, armed with the statement and the identification by Mr Maponya of the plaintiff, duly arrested the plaintiff.

[23] At the time of the arrest, there was a clear suspicion that a Schedule 1 offence, being arson, had been committed in view of at least the statement made by Mr Maponya. Furthermore, Mr Maponya immediately identified the plaintiff as one of the perpetrators whom he knew by name and where he came from. Accordingly, in terms of the provisions of section 13 of Police Act, the police were clearly duty bound to arrest the plaintiff.

[24] In my view, and I so hold, the arrest of the plaintiff without a warrant was justified. Furthermore, there was clear compliance with the requirement of section 40(1)(b) of the CPA. The submissions on behalf of the plaintiff in this regard, are without merit. The complaint lodged that led to the charge of arson being laid, is to be considered as a whole and not selective in part.

[25] All that is required of a peace officer effecting an arrest without a warrant, is reasonable suspicion that a Schedule 1 offence has been committed, objectively considered.[2] The Police Trace Team had the complainant’s statement and the pointing out of the alleged perpetrator by the complainant, who knew the alleged perpetrator. There was reasonable suspicion of the commission of a Schedule 1 offence. Arson is an offence listed in Schedule 1 of the CPA. The complaint statement identified by name one of the perpetrators who is known by the name Biyani. The complainant pointed out the perpetrator identified in the statement. The plaintiff confirmed that he is known by the name of Biyani. The plaintiff also admitted to knowing one Small who was also implicated in a statement by another witness to the act of arson. Objectively considered, the requirements were met.

[26] In the amended plea, the first defendant relied on the provisions of section 40(1)(b) of the CPA in justification of the plaintiff’s arrest. The plaintiff did not allege, nor prove, that no reasonable grounds existed for a reliance on the provisions of section 40(1)(b) of the CPA. I have already found that objectively considered, there was compliance with the requirements of section 40(1)(b) of the CPA.

[27] Warrant Officer Sefoloshe testified that he took a warning statement of the plaintiff and indicated thereon that the plaintiff had no fixed address. The plaintiff had stated that he slept on various street corners and had no fixed place where he rested. He further testified that the plaintiff signed on each page of the warning statement in the presence of Warrant Officer Sefoloshe. He also completed the answers to the questions contained in the warning statement that he received from the plaintiff. The latter indicated that he did not wish to have legal representation and would tell his story in court, that he received no injuries while in detention and had no difficulty following the Zulu that Warrant Officer Sefoloshe spoke. The plaintiff signed each page in his presence and the document was commissioned by a Commissioner of Oaths, Constable Mashele. He confirmed that the plaintiff signed in his presence and denied that the signature appearing on the warning statement was not the signature of the plaintiff. The plaintiff had signed in his presence.

[28] Constable Tsovakara confirmed in essence the facts relating to and leading up to the arrest of the plaintiff. He further confirmed that he read the rights of the plaintiff to him and the latter signed the notice of rights in his presence. His evidence was not materially damaged during cross-examination.

[29] The complainant, Mr Maponya, also testified. I do not intend to analyse his evidence in detail. His evidence is irrelevant in respect of his complaint in that the truth or validity thereof only has a bearing on whether his evidence would have been accepted in court, should the matter have proceeded. That issue is not for adjudication in the present matter. Only his evidence in respect of the circumstances leading up to the arrest of the plaintiff may have some bearing on the issues in question in this action. Mr Maponya confirmed the evidence led in respect of the leading up to and the arrest of the plaintiff.

[30] It follows that the arrest and subsequent detention of the plaintiff in the cells of Jeppe Police Station until he was brought before court within 48 hours, were lawful.

[31] The plaintiff has failed to prove that his arrest and subsequent detention by the police were unlawful. The plaintiff cannot succeed in his claim against the first defendant and it stands to be dismissed.

[32] In terms of the provisions of section 50 of the CPA, the further detention of an arrestee is not dependent upon the lawfulness of the arrest.[3] It is dependent on the facts of the particular case and the provisions in respect of bail. If further detention follows on a court order, the further detention cannot be unlawful.[4]

[33] It follows that where it is common cause that the plaintiff’s further detention at the Johannesburg Prison was in terms of a court order, the first defendant cannot be liable for any “unlawfulness” of such further detention, if such is to be found. Furthermore, the plaintiff conceded that at no stage did he seek bail, either personally, or through his legal representative. There is no merit in Mr Kerr-Philips’ submission that the prosecutor or the presiding officer had an obligation to grant bail to the plaintiff where no bail request was made and where the plaintiff enjoyed legal representation. Furthermore, it does not assist the plaintiff to allege that he and his legal representative “did not consult on the charge”. If the plaintiff was unhappy with his legal representative, he should have raised the issue in court and sought appropriate legal representation. Where the court is none the wiser in that regard, no obligation can be enforced upon the court officials to consider the issue of bail.

[34] On the issue of malicious arrest and malicious detention, the principle requirement is that of intent. The plaintiff did not plead any facts, nor led any evidence of malice and in particular an intention on the part of the police to that effect. No facts were proven by the plaintiff from which any possible inference to that effect can be drawn. The plaintiff emphatically testified that the problem of prosecution arose from Mr Maponya’s “mistake”. There is no merit in the claim of malicious arrest and malicious detention and it stands to be dismissed.

[35] The claim against the second defendant for malicious prosecution and/or unlawful prosecution and further detention requires consideration.

[36] The plaintiff claims that the employees of the second defendant acted maliciously, alternatively unlawfully, in the further alternative negligently in prosecuting him. The plaintiff further claims that the said employees of the second defendant maliciously, alternatively unlawfully, in the further alternative, negligently caused him to be detained at Johannesburg Prison until 14 May 2013 when the charges were provisionally withdrawn.

[37] The plaintiff bears the onus of proving all the requirements for the actio iniuriarum upon which a claim for malicious prosecution, and in respect of a claim for malicious further detention, is premised.[5] One of those requirements involve an intent.

[38] The elements to prove malicious prosecution are:[6]

(a) the defendant set the law in motion. i.e. the defendant instigated or instituted the proceedings;

(b) the defendant acted without reasonable and probable cause;

(c) the defendant acted with malice, i.e. animus iniuriandi; and

(d) the prosecution failed.

[39] In respect of the first requirement, and with particular reference to the first defendant, the question is whether the police, who prepared the docket and handed it to the prosecutor on 3 September 2012, did anything more than what is expected of an police officer in the circumstances, namely to give a fair and honest statement of the relevant facts to the prosecutor for a decision.[7]

[40] In the present instance the following is to be noted:

(a) The docket handed to the prosecutor contained two statements by two eyewitnesses, the plaintiff being implicated by one of the eyewitnesses, Mr Maponya;

(b) The police officers knew that Mr Maponya identified the plaintiff and pointed him out to the arresting police officers;

(c) It was up to the prosecutor, in the present instance the Control Prosecutor, to decide whether to prosecute the plaintiff.

[41] In my view, the police officers did nothing more than to provide the prosecutor with the relevant facts in the form of the two statements and that Mr Maponya identified the plaintiff and pointed him out to the police. The police officers made no decision, intentionally or otherwise, to prosecute the plaintiff. It could hardly be said that the police officers, acting in the course and scope of their employment with the first defendant, to have instigated or instituted proceedings against the plaintiff. They did not set the law in motion. That was done by Mr Maponya when he laid the complaint with the police and identified and pointed the plaintiff out to the police.

[42] With regard to the second requirement, the police handed the docket containing inter alia the two statements made by the respective eyewitnesses to the Control Prosecutor. The one made by Mr Maponya gave a description of what he observed the night of the incident. It contained information of the identity of the plaintiff as one of the perpetrators. The other statement contained information of the second perpetrator, one Small. Both gave summaries about the incident. There were no obvious discrepancies between the two. None were identified by the plaintiff. The Control prosecutor also had the facts of the identification of the plaintiff by Mr Maponya and that he was pointed out to the police before the plaintiff’s arrest.

[43] In this regard Ms Joseph, now a Magistrate, who was the control prosecutor at the time, testified how it came about that she endorsed the docket for prosecution. At that time, she was a Regional Court prosecutor and had for a period acted on and off as Control Prosecutor. She had about 14 years of experience as a prosecutor.

[44] The Control Prosecutor considered the facts contained in the docket, including the two statements, and considered whether a prima facie case on a charge of arson could be justified. A decision was made to formally charge the plaintiff and the docket was endorsed accordingly. It follows that the Control Prosecutor had an honest belief that the plaintiff was guilty of the offence of arson and that a prima facie case of arson could be made. The docket contained the two witness statements, the arresting officer’s statement, a warning statement of the plaintiff and a notice of rights. The Control Prosecutor endorsed the file that no bail should be granted as the plaintiff had no fixed address. She endorsed on the docket that the issue of a fixed address be verified.

[45] The cross-examination of Ms Joseph elicited no discrepancies or contradictions in her evidence. The questions by Mr Kerr-Philips in respect of possible negligent prosecution and detention were of no material effect.

[46] The question then to be considered is whether, objectively considered,[8] a reasonable prosecutor would prosecute upon the evidence contained in the docket at that stage.

[47] In this regard, the prosecutor, Mr Mhaga, had the indication from the Control Prosecutor to prosecute. He also had the two witness statements, the arresting officer’s statement, a warning statement of the plaintiff and a notice of rights. His call was to prosecute the plaintiff. He had no fixed address for the plaintiff in the file and none was advanced by the plaintiff at the first hearing. Bail was opposed due to the fact that the plaintiff did not have a fixed address. Further in view of the fact that further investigation could be done, he called the matter in court and the accused was present. The accused’s rights were read. A Legal Aid attorney was in court and accepted the brief in respect of the plaintiff. The matter was remanded. Mr Mhaga was the resident prosecutor in the court in which the plaintiff appeared. Although he was the resident prosecutor, he was not present at all the plaintiff’s appearances. He was present on the day he provisionally withdrew the charges against the plaintiff. The reason for the provisional withdrawal of the charge of arson against the plaintiff was that the complainant and the further witness were not present at court and no explanation or reason was advanced in that regard. The reason for only provisionally withdrawing the charge of arson offered by the prosecutor, was the fact that the complainant and the witness were not present, but could appear and possibly provide explanations and/or reasons for the non-appearance and the matter could proceed further. Also, in view of the particular circumstances recorded above, the prosecutor thought it better not to detain the plaintiff any longer and thus the charges were provisionally withdrawn.

[48] The cross-examination of the prosecutor was primarily directed at the claim relating to negligent prosecution. In my view, that issue was not properly dealt with in the plaintiff’s evidence in chief and resulted in a fishing expedition in the hope of eliciting some facts that might support a claim of negligent prosecution. Further, in my view, that approach should not be encouraged. At least a basis should be laid which could then be fleshed out in cross-examination.

[49] The investigating officer, Constable Malulekwa testified. The gist of the cross-examination was primarily in my view directed at the possible negligent prosecution of the plaintiff and that there is an obligation upon the defendants to offer bail where no bail application is made where the accused enjoys legal representation. I have already dealt with the issue of bail and in particular reference to the evidence of the plaintiff in that regard. Furthermore, the plaintiff led no evidence in support of the inferences that is sought to be drawn from the line of cross-examination of the witnesses to foster a claim for negligent prosecution.

[50] The plaintiff alleged no facts, nor led any evidence that the prosecutors who were involved from time to time had the required intent to maliciously prosecute and further cause the detention of the plaintiff until the charges against the plaintiff were provisionally withdrawn. No facts were proven from which such intent could be inferred

[51] It follows that the claim of malicious prosecution and continued detention stands to be dismissed. It further follows that the alternative claim of negligent prosecution also stands to be dismissed.

[52] It follows that the plaintiff has not succeeded in proving his claims for damages suffered as a result of his arrest, detention and prosecution as set out in his particulars of claim. This claim for compensation stands to be dismissed.

[53] The issue of costs remains. There is no reason why costs should not follow the result. In my view, and without derogating the abilities of Mr Kerr-Philips who ably represented the plaintiff, the employment of Senior Counsel is warranted.

I grant the following order:

(a) The plaintiff’s claims are dismissed with costs, such costs to include the costs consequent upon the employment of Senior Counsel.

________________________________

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

On behalf of Applicant: G E Kerr-Philips

Instructed by:

Wits Law Clinic

On behalf of Respondent: D J Joubert SC

Instructed by:

State Attorney

[1] Brand v Minister of Justice et al 1959(4) SA 712 (A) at 714G-H

[2] Duncan v The Minister of Law and Order 1986(2) SA 805 (A)

[3] Isaacs v Minister van Wet en Orde 1996(1) SACR 314 (A)

[4] Ibid at 323g-h

[5] Beckenstrater v Rottcher & Theunissen 1955(1) SA 129 (A)

[6] Minister for Justice & Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) at [8]

[7] Ibid. at [11]

[8] Minister of Police et al v Du Plessis 2014(1) SA 217 (SCA)