Viljoen v Minister of Police and Others (76210/2014) [2015] ZAGPPHC 1039 (17 September 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

17/9/15

Case No: 76210/2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

CHRISTOFFEL JOHANNES VILJOEN Plaintiff/Respondent

and

THE MINISTER OF POLICE NO 1ST Defendant

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT 2ND Defendant

INSPECTOR VAN DEN BERG 3RD Defendant

INSPECTOR COETZEE 4TH Defendant

KATE VISAGIE 5TH Defendant

CINDY COETZEE 6TH Defendant

ELMARIE JOUBERT 7TH Defendant/Applicant

Date of Hearing: 06 August 2015

Date of Judgment: 17 September 2015

JUDGMENT

MANAMELA AJ

Introduction

[1] The respondent issued summons against the defendants claiming damages in an amount of R 1 538 000.00. The lawsuit followed his arrest and incarceration on charges or complaints of sexual molestation, involving minor children. The charges were withdrawn when the Director of Public Prosecutions declined to prosecute and the matter was struck from the roll. He had by this time already appeared in the magistrates' court a number of times and held in custody until released on bail.

[2] Although damages claimed by the respondent are under different heads, the respondent essentially seeks compensation for the loss suffered due to the malicious proceedings. His claim against the seventh defendant in the action and the applicant herein, is the source of contention for current purposes. The applicant filed a notice of exception against the respondent's particulars of claim, on the grounds that they lack averments which are necessary to sustain a cause of action.

Cause of Action and Particulars of Claim

[3] The respondent claims that he was maliciously (kwaadwillig) arrested on 05 August 2010 in Belfast by the members of the South African Police Service, some of whom are cited as defendants herein. The arrest came after the applicant, the fifth and sixth defendants unlawfully set the law in motion by laying false charges and complaints against the respondent alleging that the respondent sexually molested minor or under age children. The respondent claims that when reporting the charges, the respondent and the others did not have reasonable or probable cause to do so and did not have any reasonable belief in the truthfulness of the information which they were relaying to the police. As a result of the conduct of the applicant and the other defendants, the respondent was maliciously arrested and detained for a period of 10 days. As stated above, the matter was struck off the roll when the Director of Public Prosecutions declined to prosecute.

[4] As stated above, the respondent issued summons against the police, the accusers, including the applicant and the executive or political heads of the police and the magistrates' courts. He also complains about conduct of the magistrate at his first court appearance. The respondent's cause of action is pleaded in the particulars of claim to the summons as follows:

9)

Op 5 Augustus 20 10 te Belfast is die Eiser kwaadwillig gearresteer deur Sibongule [sc. Sibongile] Linah Mahlangu 'n lid in dliens van die Eerste Verweerder.

10)

Voormelde Mahlangu was vergesel gewees deur die Derde en die Vierde Verweerders wie hulle te alle relevante tye vereenselwi g het met die kwaadwillige arrestasie van die Eiser.

11)

Op 5 Augustus 2010 te Belfast het die Vyfde tot Sewende Verweerders die reg onrcgmatig in werking gestel deur vals klagtes en verklarings af te le dat die Eiser minderjarige kinders seksueel gemolesteer het.

12)

Die voormelde Mahlangu en die Derde en Vierde Verweerders het geweet, alternatiewelik moes geweet het, verder alternatiewelik moes redelikerwys voorsien het dat die klagtes vals klagtes was en het 'n regsplig gehad om die bewerings behoorlik te ondersoek voord at die Eiser gearresteer is.

13)

Ten tye van die aanmelding van die klagtes het die Vyfde tot die Sewende Verweerders oor geen redelike of waarskynlike grondebeskik om dit te doen nie en het hulle ook nie enige redelike geloof in die waarheid van die inligting wat hulle oorgedra het gehad nie.

14)

As gevolg van die optrede van die Derde tot Sewende Verweerders is die Eiser kwaad willig gearresteer en vir 'n tydperk van tien (10) dae in hegtenis aangehou.

23)

As gevolg van die gedrag van die Verweerders het die Eiser skade gely ten bedrae van R 1 538 000.00 in die volgende opsigte:

23. 1 Regskostes aangegaan R 30 000-00

23.2 Verlies aan inkomste R 8000.00

23.3 Ontneming van vryheid en ongerief verduur die Eiser R 750 000-00

23.4 Contumelia R 750 000-00"

[5] As already stated above, the applicant, as the seventh defendant in the lawsuit, excepted to the particulars of claim and contended that the particulars of claim lack averments necessary to sustain a cause of action.

The Exception

[6] The exception was initially based on two grounds, but at the hearing Mr Strydom appearing for the applicant stated that one of the grounds was abandoned. The remaining ground is that whilst the respondent's claim against the applicant is based on malicious prosecution or both, the respondent does not allege the following. Firstly, that the respondent did not provide details of any false and/or untrue complaints and/or statements made by the applicant. Secondly, that the respondent whilst alleging that a certain Mahlangu, third and fourth defendants had no reasonable or probable cause for laying the false charges and misinformation, the respondent did not include the applicant in the aforesaid specific conduct or allegation. Thirdly, that, although the criminal proceedings against the respondent were only struck from the roll, this connote a provisional withdrawal and does not constitute termination of the proceedings in favour of the respondent. Evidently, the exception is opposed by the respondent.

Defences to the Exception

[7] The respondent points out that his case is not based on unlawful arrest, but malicious arrest and malicious prosecution.[1] He submits in this regard that, upon a

proper interpretation, the particulars of claim clearly allege that, due to the false information supplied by, among others, the applicant; the respondent was arrested and maliciously prosecuted.[2] The respondent disputes that it had to include the applicant in the particulars relating to Mahlangu and the other police officers. This, the respondent submits. was only to the effect that these police officers had a legal duty to investigate the matter properly before arresting the respondent. There was no need to include this allegation in the particulars, it is further submitted.

[8] The respondent submits that it has pleaded all that is required in respect of malicious prosecution. Regarding the applicant's submission that the proceedings were not terminated in favour of the respondent, the respondent submits that, what is pleaded in the particulars of claim ought to be accepted as the truth for purposes of

determining the exception.[3]

Applicable legal principles and the facts

[9] The purpose of an exception on ground that it discloses no cause of action is to avoid the leading of unnecessary evidence.[4] If evidence can be led, which can disclose a cause of action alleged in the pleadings, the particular pleadings would not be excipiable.[5] The corollary is that, a pleading is excipiable on the basis that no possible evidence led on it can disclose a cause of action.[6] The aforesaid should not be construed to amount to that the disclosed cause of action is meritorious. I will revert to this below.

[10] It is submitted on behalf of the respondent that the cardinal rules applying to exceptions require that the particular pleading must be considered or looked at as it stands and as a whole. I agree with this. The facts stated ought to be evaluated and accepted as true when determining whether they disclose a cause of action.[7]

[11] I also consider it trite that, for the respondent as a plaintiff to establish that his particulars of claim disclose a cause of action, it is necessary that the respondent only allege the facts on which he relies for the cause of action. The aforesaid ought to be distinguished from the evidence needed to prove the facts that are pleaded.[8]

[12] Further, the rules of interpretation as recognised and continuously developed by our courts are useful in the interpretation exercise. These rules ought to be applied with caution. In Telematrix (Pty) Ltd v Advertising Standards Authority SA Harms JA warned against the employment of an "over-technical approach" . The learned judge of appeal held that, such an approach may end up destroying the utility of exceptions and urged a sensible approach,

when dealing with exceptions for them to meet their purpose.[9] Whilst still on interpretation, it is apposite to also point out that, it is necessary for the excipient to show that the particulars

of claim do not disclose a cause of action upon every interpretation. [10]

[13] In this matter, the respondent submits that his claim for damages is for malicious arrest and prosecution, which is one of the forms of malicious proceedings.[11] The essentials or conditions of liability for malicious proceedings are as follows

a) The defendant instituted or instigated the proceedings

b) The defendant acted intentionally or with animus iniuriandi

c) The defendant acted without reasonable and probable cause

d) The defendant was actuated by an improper motive or malice

e) The proceedings terminated in the plaintiff's favour.

f) The plaintiff suffered damages.[12]

[14] In Amlers Precedents of Pleadings[13] the elements are almost the same as in LAWSA,[14] except that b) and d) above are combined as one. This actually makes sense, as a person acting with animus iniuriandi is actuated by malice or improper

motive. I now proceed to apply these elements to the principles and use the elements as subheadings.

The defendant instituted or instigated the proceedings

[15] Under this condition or element a plaintiff ought to allege (sufficient for purposes of the exception) and prove (for trial purposes) that a defendant instituted or instigated proceedings.[15] It is not enough for the defendant merely to have placed before the police information or facts as a result of which the proceedings were instituted.[16] On the other hand. an informer who makes a statement to the police which is wilfully false in a material respect 'instigates' a prosecution and may be held liable.[17]

[16] In this matter the respondent makes an allegation in paragraph 11 of the particulars of claim that "die Vy fde tot Sewende Verweerders die reg onregmatig in werking gestel deur vals klagtes en verklarings aft te lê dat die Eiser minderjarige kinders seksueel gemolesteer het." This, in my view, is sufficient for purposes of this

element. I understand the allegation made in this regard to mean that, not only did the applicant and others lay the charges, they in fact laid false charges and, as stated later below, they are further alleged to have had no reasonable belief in the truth of the information they relayed to the police ["nie enige redelike geloof in die waarheid van die inligting wat hulle oorgedra het gehad nie"].

The defendant acted intentionally or with animus iniuriandi

[17] It is not enough that a defendant should have acted as alleged, but he or she should have acted with animus iniuriandi against the plaintiff.[18] In his particulars the respondent alleges that false ["vals"] charges or complaints to the police were made without belief in their veracity This in my judgment is indicative of an ammus iniuriandi. Even if it is not, it could be established by leading evidence at the trial.

The defendant acted without reasonable and probable cause

[18] There must be an allegation that the applicant and the other relevant persons instigated the proceedings without reasonable and probable cause. The concept reasonable and probable cause is explained as an honest belief founded on reasonable grounds that the institution of proceedings is justified.[19] And it involves both subjective and objective elements.[20] The respondent alleges in paragraph 13 of the particulars of claim that, the applicant had "geen redelike of waarskynlike gronde beskik" for her actions. And further, as indicated above, the words "nie enige redelike geloof in die waarheid" are included in the allegation. I am satisfied that this element sufficiently exists in the allegations.

The defendant was actuated bv an improper motive or malice

[19] The concept of improper motive or malice is distinguishable from ammus iniuriandi discussed above. For, a person may lay a charge with an intention to injure another, but the action may nevertheless be lawful as long as the person had reasonable and probable cause for laying the charge and was not merely actuated by malice.[21] In LAWSA "Malice" is stated as meaning that the defendant had "an absence of an honest belief in the guilt of the accused, which may include recklessness... or an improper or indirect motive in the sense of some motive other than that of bringing the plaintiff to justice"[22] [my emphasis] This is further explained as acting in a grossly negligent and reckless manner without regard to the rights of others and not caring whether the conduct breaches the rights or freedoms of others.[23]

[20] Although the respondent's particulars of claim do not make reference to the words improper motive or malice, in my view, the other allegations made by the respondent and already referred to above, suffice. There is therefore a basis from which the respondent will be able to lead evidence in this regard.

The proceedings terminated in the plaintiff's favour

[21] It is necessary that the respondent alleges and proves that the proceedings were terminated in her or his favour.[24] This allegation is clearly made by the respondent stating in paragraph 22 of his particulars of claim that, the Director of Public

Prosecutions refused to prosecute him and as a result the criminal matter against him was struck off the roll. The applicant submits

that the striking of the criminal proceedings from the roll only amounts to a provisional withdrawal and not termination of the

proceedings. This may be so, but for purposes of the exception the allegation is accepted as being true and therefore suffices.

The respondent suffered damages

[22] Our courts have a dim view of malicious proceedings and they often make this known when awarding damages.[25] Malicious proceedings are in their nature a discouragement to people relaying information to the police or the broader criminal justice system. This is not to say that the courts are opposed to this kind of matters. Qualifying plaintiffs will be awarded damages for, among others, contumelia. In this matter, the respondent's claim is for damages, which he alleges were suffered due to the detention following the malicious arrest instigated by, among others, the applicant. He also included a claim for legal costs incurred in defending the proceedings.[26]

Grounds of Exception revisited

[23] The applicant grounded his exception on the fact that whilst the respondent's claim against the applicant is based on malicious prosecution or both, the respondent does not allege in detail any false and/or untrue complaints and/or statements made by the applicant. This is not necessary as the essential allegations are made and the rest could be dealt with by requesting further particulars. The second challenge was that, whilst allegations are made that the police had no reasonable or probable cause for laying the false charges and misinformation, none are made against the applicant. This is not correct. I have dealt with the allegations made by the respondent in this regard above.[27] The third challenge was regarding the withdrawal or termination of the criminal proceedings against the respondent. I have already dealt with this and expressed my satisfaction in the sufficiency of the allegations made in the particulars of claim.

Conclusion

[24] From the above, I am satisfied that the averments made in the respondent's particulars of claim do disclose a cause of action. It is not the same as saying the respondent will succeed in proving the claims. The trial court will be given an opportunity to make a determination on that after listening to the evidence led on the allegations in the pleadings.[28] For now, I am only to examine the particulars of claim, on the assumption that the respondent could prove his claim. Therefore the exception fails with the attendant order for costs.

Order

[25] In the premises, I make the following order:

1. The applicant's/seventh defendant's exception is dismissed with costs, and

2. The applicant/seventh defendant is directed to plead to the respondent's/plaintiff's particulars of claim within 10 (ten) days from date hereof.

______________________

K. LA M. MANAMELA

Acting Judge of the High Court

APPEARANCES

For the applicant/seventh defendant: Adv. CPJ Strydom

Instructed by: Macintosh Cross & Farquharson

Arcadia, Pretoria

For the respondent/plaintiff: Adv. M Bouwer

Instructed by: Kenny Boonzaier Attorneys

Hatfield, Pretoria

[1] See paras 10 and 18 of the plaintiff's/respondent's main heads of argument (the respondent's heads of argument).

[2] See para 18 of the respondent's heads of argument.

[3] See para 17 of the respondent’s heads of argument. See further Thompson and Another v M inister of

Police and Another 1971 (1) SA 371E on p 373; Sefuthi v Minister of Justice and Another 1967 ( 1) SA 300 0 on p 303.

[4] See Dharumpal Transport (Pty) Ltd v Dharumpal 19S6 (1) SA 700 ( A) at 706 E.

[5] See McKelvey v Cowan NO 1980 (4) SA 525 (Z) at 5 26D-E.

[6] See South African National Parks v Ras 2002( 2) SA 537 (C) at 543A·B.

[7] See Oceana Consolidated CO Ltd v The Government 1907 TS 786 a t 788; Stols v Garlicke and Bousfield Incorporated 2011(4) SA 415 KZP a t 412H.

[8] McKenzi v Farmers Cooperative Meat Industries Ltd Respondent 1922 AD 16 at

123. See further Ne/ and Others v McArthur 2003 ( 4) SA 142 (T) at 149F.

[8] McKenzi v Farmers Cooperative Meat Industries Ltd Respondent 1922 AD 16 at

123. See further Ne/ and

Others v McArthur 2003 ( 4) SA 142 (T) at 149F.

[9] See Telematrix (Pty} Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at 465G-466H.

[10] See Lewis v Oneanate (Pty} Ltd and Another 1992 ( 4) SA 811 A at 817F-G.

[11] "Malicious criminal proceedings may take the form of malicious prosecution, malicious procurement of a search warrant or malicious arrest or imprisonment. Malicious civil proceedings may consist of malicious arrest of a person under civil process, malicious execution, malicious insolvency or liquidation proceedings and any other abuse of the legal process. Unlike English law, South African law does not distinguish between the institution of civil and cri minal proceedings when dealing with abuse of legal procedures. " See McQuid Mason DJ Malicious Proceedings Law of South Africa, Volume (15) 2"d edition { LAWSA ) at 311 with footnotes omitted.

[12] 11 See LAWSA at 315.

[13] Harms LTC Amlers Precedents of Pleadings 8th edition { LexisNexis Cape Town 2015) (Amlers ).

[14] See footnote 11 above.

[15] See LAWSA a t 317 and the authorities cited there.

[16] See Lederman v Moharal Investmen ts (Pty) Ltd J l969J l All SA 297 ( A), 1969 (1) SA 190 (A) p p. 196-197

[17] Prinsloo v Newmon [1975] 2 All SA 89 ( A). 1975 ( 1) SA 481 ( A) p. 492.

[18] Mooki v Reckitt & Colman (Africa) Ltd [1968] 3 All SA 242 (A). 1968 (3) SA 98 (A); Relyant Trading (Pty) Ltd v Shongwe J 2006J ZASCA 162, 12007] 1All SA 375 (SCA)" Amlers p249

[19] See LAWSA at 323 and the authorities cited there. See further Amlers on p 249.

[20] Ibid. See in particular footnote 8 on LAWSA at 323 and its preceding main text

[21] See LAWSA at 323 and the authorities cited there.

[22] See LAWSA at 328 and the authorities quoted there.

[23] Ibid.

[24] Thompson v Minister of Police [1971] 1 All SA 534 ( E ), 1971 (1) SA 371 (E) p p. 373-375; Els v Minister of Law & Order 11993] 3 All SA 467 (C). 1993 ( 1) SA 12 (C)" p249; Minister of Justice and Constitutional Development and others v Moleko [2008] 3 All SA 47 (SCA), 2009 ( 2) SACR 585 (SCA); Minister of Safety and Security N O v Schubach [2014] ZASCA 216, 248.

[25] Minister of Safety and Security v Seymour [ 2007] 1All SA 558 (SCA), 2006 (6) SA 320 (SCA); Minister of Safety and Security NO v Schubach [2014] ZASCA 216.

[26] See para 23.l of the particulars of claim and para [4] above. See further Law v Kin [1966] 3 All SA 84 (W) 1966 (3) SA 480 (W)

[27] See para [18] above.

[28] See South Africa National Parks v Ras 2002 (2) SA 537 (C) at 543A-B, and [2001] JOL 8273 (C) on p 11under parallel reporting; McKefvey v Cowan NO 1980 ( 4) SA 525 (Z) at 526H.