Shabalala v Minister of Police and Another (323/2021) [2023] ZAMPMHC 6 (2 March 2023)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

Case No: 323/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

SIGNATURE:

DATE: 02/03/2023

In the matter between:

MXOLISI M. SHABALALA

PLAINTIFF

And

MINISTER OF POLICE

1st DEFENDANT

DIRECTOR OF PUBLIC PROSECUTIONS

2nd DEFENDANT

JUDGMENT

1. The plaintiff is seeking compensation for unlawful arrest and

detention as well as malicious prosecution. The claim is based on:

1.1. the arrest which took place on 31 July 2014;

1.2. the detention which from date of arrest, 31 July 2014 to 3 August 2014 date of release on bail; and

1.3. the detention from the date of imprisonment, 26 February 2016 when the 9

April 2018, the date of release on parole.

2. The plaintiff issued summons for R2 500 000,00 for unlawful arrest and detention and R2 500 000,00 for malicious prosecution. During submissions, the plaintiff submitted that an amount of R900 000,00 would be fair and reasonable for unlawful arrest and detention and that R2 500 000,00 would be fair and reasonable for malicious prosecution.

3. Both defendants entered appearance to defend and requested the

plaintiff to make available and deliver specified documents for inspection. The plaintiff complied with the request.

4. Both defendants failed to deliver their plea(s) within the prescribed

time and the plaintiff served defendants with a notice of bar on 1 June 2021. The dies for the defendants to file their plea(s) in terms of the bar lapsed with the defendants still not having filed the plea(s).

5. On 8 July 2021, the plaintiff alerted the defendants to the fact that the dies for filing the plea had lapsed and of its own volition, granted the defendants the indulgence to deliver the plea(s) within five (5) days from 8 July 2021. Still, the defendants failed to plead to the claims. The plaintiff proceeded to set the case down for trial and set the matter down for trial and served such on the defendants on 29 July 2022. The defendants are ipso facto barred and the trial proceeded on an undefended basis.

6. At trial, the plaintiff was represented by Adv. C Mavunda and there was no appearance for the defendants. The matter is properly before the court for trial.

The plaintiff is the only witness that testified.

Issues

7. The questions to be determined are:

7.1. Whether the arrest of the plaintiff was not wrongful and unlawful;

7.2. Whether the detention of the plaintiff was not wrongful and unlawful; and

7.3. Whether the prosecution of the plaintiff was not malicious.

8. Counsel for the plaintiff referred me to case law and legislation in support of its argument on merits and quantum I am indebted to Mr Mavunda for thorough submissions based on authorities., that the plaintiff should succeed in respect of both the merits and the quantum of its claim.

Factual Background

9. On 30 July 2014, the plaintiff a 28-year-old attended a party where he got drunk and called his father at about 10 at night, and requested him to fetch him and take him home. His father came to fetch him; the plaintiff fell asleep in the car. He does not know where his father drove to after picking him up.

10. When the plaintiff woke up he saw many police cars following them. His father drove to a filling station and two cars came and stopped the plaintiff’s vehicle. The plaintiff’s father went to speak to the people who had stopped them, they were private security officers. They then came to the vehicle in which the plaintiff was,

carrying guns. They opened the door of the vehicle and pointed the plaintiff with a gun, ordering him to lie down. They handcuffed the plaintiff.

11. The many police arrived, they arrested the plaintiff and his father and took them to the police station and detained the plaintiff up without a warrant of arrest or any explanation. The plaintiff tried to explain to the police that he knew nothing about the crime but the police would hear nothing of it

12. The following day a police officer whom the plaintiff had seen at the scene of arrest, came to the plaintiff and introduced himself as Officer Hartley. He took the plaintiff to another office where they found a Mr Vilakazi. Mr Vilakazi informed the plaintiff that he was going to charge him with stock theft for five (5) carcasses of sheep which the police found in a vehicle which was driven by the plaintiff’s father with the plaintiff as a passenger.

13. The police charged the plaintiff and his father with stock theft. The plaintiff did not know why he was arrested. The plaintiff’s father told the police officers that the carcases belonged to him (the father) and not the plaintiff. Notwithstanding, the police proceeded to charge the plaintiff, keep him in detention and oppose his release on bail.

14. The plaintiff and his father appeared at Court where the plaintiff recognised the public prosecutor in his case as one of the persons who were at the scene when the plaintiff was arrested.

15. The plaintiff appeared at court on three occasions where he applied for release on bail. On the fourth appearance he was released on R15 000,00 bail and the case was moved to the Regional Court.

16. The prosecution preferred charges against the plaintiff and proceeded with the prosecution until the trial and sentencing proceedings were concluded. Both the plaintiff and his father were convicted and sentenced. The plaintiff was sentenced to four(4) years’ direct imprisonment term while the plaintiff’s father was sentenced to

fifteen years’ direct imprisonment term.

17. The plaintiff served 2 years and 2 months’ imprisonment term whereafter he was released on parole on 9 April 2018. Parole conditions included community service and reporting fortnightly at the parole officers’ office. The plaintiff complied with all the parole conditions.

18. During or around late in the year 2017, the plaintiff and his father lodged an appeal against both the convictions and sentences. The plaintiff’s appeal was upheld in 2019 and both the conviction and the sentence were set aside.

19. The plaintiff submits that the prosecutor had no case against him. None of witnesses implicated the plaintiff and there was thus no reason why he was convicted. Prior to trial, the plaintiff had stayed in detention for six weeks.

Unlawful arrest and detention

20. Section 12(1) of the Constitution guarantees the right to not be deprived of freedom arbitrarily or without just cause. Section 7(2) of the Constitution obliges the State to respect, protect, promote and fulfil the rights in the Bill of Rights.

21. Botha v Minster of Safety; January v Minister of Safety and Security 2012 (1) SACR 305 (ECP) has held that in a case where the Minister of Safety and Security is being sued for unlawful arrest and detention and does not deny the arrest and the detention, the onus to justify the detention as being lawful rests on the defendant and the burden shifts to the defendant on the basis of the provisions of Section 12(1) of the Constitution…. These provisions, therefore, place an obligation on the police official who are bestowed with duties to arrest and detain persons charged with and/or suspected of the commission of criminal offences, to establish before detaining the person, the justification and lawfulness of such arrest and detention.

22. Section 39(2) of the Criminal Procedure Act prescribes the manner of arrest as follows:

22.1. “The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest inform the arrested person of the cause of the arrest or in the case of an arrest effected by virtue of a warrant, upon of the person arrested hand him a copy of the warrant”.

23. The uncontroverted evidence is that the arresting officer did not, immediately after arresting the plaintiff, inform the plaintiff of the cause of arrest. Further, the arresting officer did not inform the plaintiff that he was being arrested by virtue of the warrant or without a warrant but on grounds of section 40(1) of. The Criminal Procedure Act 51 of 1977(the CPA). Based on the fact that the arresting officer did not show the plaintiff the warrant of arrest, it can safely be concluded that the arresting officer arrested the plaintiff without a warrant.

24. Section 40(1)(b) of the CPA empowers a peace officer to without a warrant arrest any person whom he/she reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.

25. In Minister of Safety and Security v Sekhoto (131/10) [2010] ZASCA 141 (19 November 2010) the Court referring to Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H. restated the jurisdictional facts for a section 40(1)(b) as being that:

“(i) the arrestor must be a peace officer;

(ii) the arrestor must entertain a suspicion;

(iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and

(iv) the suspicion must rest on reasonable grounds.”

26. It is trite that the onus rests on a police to justify the arrest. Rabie CJ explained in

Minister of Law and Order v Hurley and Another 1986(3) SA 568 (A) T 589 E – F: ‘that an arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and

just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified.

27. It is required of the arresting officer to form an opinion based on the facts, whether it (the arresting officer) reasonably suspected the plaintiff of having committed an offence referred to in Schedule 1 of the CPA.

28. There is no evidence from the first defendant to show the police’ basis of its arrest and detention of the plaintiff. The circumstances under which the plaintiff was arrested as stated in the plaintiff’s

evidence justify a conclusion that the arresting officer arrested the plaintiff without obtaining facts from the plaintiff, his father and other sources and assessing such facts to establish on the balance of probabilities whether the arrest without a warrant would be justified in the circumstances.

29. The issue of reasonable suspicion is formulated more clearly in Duncun v Minister of Law and Other 1986 (2) SA 805 (A) at 818H where the Court formulated the concept as:

(a) If the investigating officer had a suspicion; and

(b) If so, if the suspicion rested on reasonable grounds.

30. In Mabona and Another v Minister of Law and Order and Others 1988(2) SA 654 SE at 686 E-H the court referring to S v Nel and Another 1980 (4) SA 28 E at 33 H reiterated that the rationality test required the arresting officer to enquire whether a reasonable man in the position of the arresting officer and possessed of the same information, would have considered that there were good and sufficient grounds for suspecting that the plaintiff was guilty of committing the crime.

31. A reasonable man will therefore analyse and assess the quality of the information at his/her disposal critically, and he/she will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he/she will allow himself/herself to entertain a suspicion which will justify an arrest.

32. While the section requires suspicion and not real evidence, it is required that the suspicion be based upon solid grounds. Otherwise, it will be flightly or arbitrary, and not a reasonable suspicion. The arrest and the detention are intricate in that but for the arrest, the detention would not have occurred.

33. The plaintiff had a constitutional right not to be deprived of Liberty. The deprivation is prima facie unlawful and the first defendant bears the onus to prove that there was justification for the interference.

34. The detention of the plaintiff occurred after the police unlawfully arrested the plaintiff. The information on which the plaintiff was placed under arrest is not clear. The police have a public law duty to safeguard the constitutional rights of members of society.

35. In the case of J.E. Mahlangu and Another v Minster of Police [202] ZACC10 at para 25, the Court held that the prism through which liability for unlawful arrest and detention should be considered is the constitutional right guaranteed in Section 12(1) not to be arbitrarily deprived of freedom and security of the person. The right not to be deprived of freedom arbitrarily or without just cause applies to all persons in the Republic of South Africa.

36. In the Hurley case the Court reiterating the S v Nel and Another 1980 (4) SA 28 E at 33 H reiterated that “An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another should bear the onus of proving that his action was justified in law”.

At Para 32 the Court stated as follows:

“It follows that in a claim based on the interference with the constitutional right not to be deprived of one’s physical liberty, all that the plaintiff has to establish is that an interference has occurred. Once it has been established, the deprivation is prima facie unlawful and the defendant bears an onus to prove that there was justification for the interference”.

Malicious prosecution

37. Section 35(3) of the Constitution guarantees the right to a fair trial. A trial can only be fair if the public prosecutor’s decision to prosecute is based on sound and lawful judgment and the presiding officer’s judgment is founded on sound reason. The public prosecution is placed in a key role to ensure that persons are not subjected to unfounded prosecution. The prosecution has an obligation to ensure that the accused’s right to a fair prosecution is protected. This obligation takes effect from the time the prosecution undertakes its constitutional duty to decide whether or not, the accused should be prosecuted. Upon deciding to prosecute, the prosecution is obliged to keep developments of the case under

watch and continuously assess the case to decide whether continued prosecution is justified or not.

38. Heyns v Venter 2004 (3) SA 200 (1) 208 B states that malicious prosecution consists in the wrongful and intentional assault on the dignity and intentional assault on the dignity of a person comprehending also his or her good name and privacy.

39. Backenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) 136 A – B explains prosecution instituted “in the absence of reasonable and probable cause” as follows: “When it is alleged that a defendant has no reasonable cause for prosecuting, I understand this to mean that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause”.

40. It follows that the prosecution authority will not be liable if the public prosecutor held a genuine belief founded on reasonable grounds in the plaintiff’s guilt.

41. The prosecution’s rationale for deciding to prosecute the plaintiff and deciding to persist with that prosecution is unknown to the plaintiff. The onus to justify the decision to prosecute and the decision to persist with the prosecution rests on the second defendant. It is required of the prosecutors to read and understand the case docket in order to establish whether there is probable cause for a person to be prosecuted. Further, the prosecutor has a duty to

direct the investigations in order or not is based on sufficient information which appears to be credited.

42. Without rebutting evidence showing that the prosecution was justified, the court has no option but to rely on the plaintiff’s evidence that during the criminal trial, the state did not present any evidence that links the plaintiff with the crime he was prosecuted for. Based on the evidence that none of the witnesses implicated the plaintiff on trial, I can reasonably conclude that the prosecutor did not have sufficient evidence on when it decided to prosecute the and pursue the prosecution to finality. It is found that the prosecution was not justified and therefor malicious.

43. Parole does not amount to full recovery the right to freedom. A parolee is not free to deal with its time as it pleases, the parolee is under an obligation to forego its freedom at periods stipulated for parole duties including reporting at parole officers’ offices. During the parole period, the plaintiff’s right to freedom was limited by the parole conditions.

44. A person claiming malicious prosecution must prove that:

“The prosecution was instigated without reasonable and probable cause; and with “malice” or animo iniuriarum. Prinsloo and another v Newman 1975 (1) SA 481 (A) 498 H – 499 C. The second defendant bears the onus to prove that reasonable and probable cause was present when the prosecution commenced and proceeded.

45. Based on the evidence of the plaintiff that no witness mentioned him and that he was not implicated at all, the only reasonable inference to be drawn is that the public prosecutor decided to prosecute the plaintiff and to proceed with the prosecution until the end of the trial, without any probable cause.

46. In S v Lubaxa 2001 (2) SACR 703 (SCA) at para 19 the court said:

“…. Clearly a person ought not be prosecuted in the absence of a minimum of evidence upon which he might be convicted, merely in the

expectation that at some stage he might incriminate himself. This is recognised by the common law principle that there should be

reasonable and probable cause to believe that the accused is guilty of an offence before a prosecution is initiated and the Constitutional protection afforded to dignity and personal freedom (Section 10 and 12) to reinforce a duty on officers that exercise public power to uphold and protect the right to human dignity and the right to freedom and security of the person. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence. The prosecution is under a duty to guage the merits of the

prosecution with a watchful eye throughout the process so that it can be detected at the soonest possible opportunity for the prosecution

to reconsider its decision at any time of the process. prosecution with vigilance so as to so too should it cease when the evidence

finally falls below that threshold. Public prosecutors are empowered and actually do have a duty to to direct the investigation of by police officers.

47. What makes this case even more interesting is that the prosecutor that the plaintiff met at Court on the first date of appearance was at the scene of the plaintiff’s arrest. The likelihood of that prosecutor having heard when the plaintiff’s father when he exonerated the plaintiff from the crime.

Quantum

I have considered authorities submitted by the plaintiff’s counsel as a guide for determination of a fair and reasonable compensation for the plaintiff arising out of long period of the arrest, long periods of incarceration in police cells and prison and malicious prosecution.

Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA)-at para [26] It is trite that in the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much-needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted.

The plaintiff did not place its personal circumstances and the detail of how the detention, arrest and prosecution impacted on his emotions and dignity. At time when the plaintiff was exposed to these delicts he was 28 years old he is now 37 years old. I mention a few of the authorities sighted to make a point that general damages are determined not only on the basis of the length of period of the detention but several other factors are investigated for assistance with determination.

Minister of Police v Payne (A416/2017) [2018] ZAGPPHC 419 (19 June 2018)

In 2018 The trial Court awarded R80 000 (Eighty Thousand Rand) which amounts to R99,931.03 in real terms, today to the plaintiff for his unlawful arrest and detention which lasted about 12 hours.

Maphosa v Minister of Police (10505/18) [2022] ZAGPJHC 486 (26 July 2022)

A 43 years old married man with three dependants was awarded an amount of R500 000.00 for wrongful arrest and detention damages which the plaintiff was subjected to for almost a month.

L and Another v Minister of Police and Others (2143/16) [2018] ZAKZPHC 33;

2019 (1) SACR 328 (KZP) (15 August 2018)

The plaintiffs’ claims were founded on the actio iniuriarum and arose out of their wrongful, malicious and unlawful arrest and deprivation of their freedom and liberty which spanned a period of 6 years and 11 months. In a half-naked state the plaintiff was taken out of his house and flung into the back of a police vehicle while assaulted and . he was once again assaulted after the arrest. The court ordered payment of compensation in the sum of R3 653 560.00.

Msongelwa v Minister of Police (112/2012) [2020] ZAECMHC 10; 2020 (2) SACR 664 (ECM) (17 March 2020)

The plaintiff remained in custody for a period of 158 days he was released without being charged with any offence. The Court found the award of R5million for unlawful arrest and detention as reasonable compensation in the circumstances of that case. The compensation amounts to about R5,598,802.25 in real terms.

Conclusion

The plaintiff is successful in respect of both the merits and the quantum

Having considered all relevant factors, I hold a view that the total amount of R900 000.00 would be fair and reasonable compensation for unlawful arrest and detention and the amount of R2 million is fair and reasonable compensation for malicious prosecution.

Order

Accordingly, the following order is made

1. First and Second defendants(the defendants) are jointly and severally liable to pay

100% of the plaintiff’s damages arising from unlawful arrest, unlawful detention and unlawful prosecution;

2. The defendant shall pay the plaintiff the sum of R3 000 000.00 in respect of general damages set out as follows:

2.1. Unlawful arrest and detention

R900 000.00

2.2. Wrongful and unlawful prosecution

R2 100 000.00

3. The defendants shall pay the sum of R 3 000 000.00 into the Trust Account of the plaintiff’s attorneys, Nxumalo & Radebe Attorneys within 14 days of this order interest will run on the outstanding amount to be calculated at the legal interest rate per annum from date of judgment to date of final payment; and

3.1. The defendant to pay the plaintiff’s taxed or agreed party and party costs up to and including 15 August 2022, and costs of preparing the plaintiff’s heads of argument dated 17 August 2022 such costs shall include costs attendant upon the obtaining of payment of the capital amount referred to in order 2. Above;

M Ramagaga AJ

On behalf of Plaintiff On behalf of Defendants Counsel: Adv: M.C. Mavunda No appearance Attorneys: Nxumalo & Radebe Attorneys Email: fsnxumalo@gmail.com