SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO: 68353/2013

In the matter between:	19/10/2015

(1)

REPORTABLE:

YES / Ne

(2)

OF INTEREST TO OTHER JUDGES:	¥ES I NO

....................
DATE

SIGNATURE

SAMUEL MATSHEGO

and

Plaintiff

MINISTER OF POLICE	First Defendant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant

JUDGMENT

Tuchten J:

1 The plaintiff claims damages from the defendants arising from his arrest and prosecution on a charge of raping a girl then aged 14. He was arrested without a warrant on Saturday 12 January 2013 and brought before court the following Monday, ie 14 January 2013. From the outset the plaintiff was provided with an attorney by the Legal Aid Board and he remained legally represented throughout. On the date of his first appearance in court, the plaintiff applied for bail. The

application for bail was refused. The plaintiff was remanded in custody. On 23 January he brought a fresh bail application which was also refused. On 25 July 2013, the charge against the plaintiff was withdrawn and he was set free.

2	The first component of the plaintiff's claim is wrongful arrest. The second component is pleaded in paragraph 5 of his  amended particulars of claim:

The defendant alternatively the prosecutor in charge of alternatively handling the prosecution of the plaintiff failed to properly consider the complaint of the rape complainant and the available evidence when he decided to proceed with the prosecution of the plaintiff alternatively to oppose the plaintiff's application for bail.

3	This second component is thus, on a relatively generous reading of the pleading, that the second defendant (the OPP) or his delegate negligently failed to appreciate that the case which the state was able to make had such slender prospects of success that it ought not to have been allowed to proceed or that it would be inimical to the interests of justice for the state to oppose the grant of bail to the plaintiff. It became clear during argument that the plaintiff's claim for damages in terms of the second component in his claim focussed
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exclusively on what happened at the plaintiff's first appearance in court on 14 January 2013.

4	The plaintiff was at the time living with his then girlfriend, identified in the evidence only as M. or M., at [........]. The plaintiff is known as Mbuti. The plaintiff was born on [........] 1986 and was thus almost 27 at the time of his arrest. He was at the time in employment, but had been suspended. This suspension was lifted while the plaintiff was in prison. The lifting of the suspension prompted the plaintiff's second bail application, which was also unsuccessful.

5	The first the plaintiff heard of the allegation against him was when M. was telephoned on 11 January 2013 by Ms V. R. (VR), M.'s eldest aunt and clearly a person of considerable authority in the family. VR required M. and the plaintiff to attend immediately at VR's residence at [........] to discuss a matter of importance. Both M. and the plaintiff attended the meeting as required.

6	There the plaintiff found VR, certain of VR's other adult female relatives and Z, the 14 year old sister of M.. VR put it to the plaintiff that she had received a report from Z that the plaintiff had
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raped Z, violently and against her will, as a result of which Z was pregnant. VR was unfortunately not called as a witness but her statement to the police, taken on the Sunday after the meeting, 13 January 2013 reads as follows in paragraphs 3 and 4:

On Saturday 12 January 2013, at about 08:30 in the morning, we were at home. I then asked [Z] why she is not menstruating. It's been three months now from November 2012. She then answered by saying I was raped by Mbuti when I was at Khayalethu visiting. I then phoned my sisters and my aunt so that they can hear for themselves.
They came around 15h00 in the afternoon. [Z] repeated the same thing, telling them that she was raped by Mbuti when she visited at Khayalethu on 28 November 2012 at the house no [........] location. We then confirmed the pregnancy by testing. It came positive. Even the Girlfriend was with us when [Z] told us the truth, she then asked why [Z] didn't tell them earlier about the rape. She then answered by saying she was afraid and I also asked Mbuti about the allegations. He then denied. I then decided to come to the police station.

7	As a result of the report made to the police by VR, Const Motlhale travelled to VR's home and had preliminary interviews with some of those present. As a result of what he heard and observed, he decided

to take the matter further at the Khutsong police station. This is where the statements of VR herself, Z and the plaintiff were taken.

8	Z was also not called as a witness in the case before me. Z's statement was however  also taken by the police on Sunday 13 January 2013. She said that on 28 November 2012 she went to visit her sister at the latter's home. There she found the plaintiff. The impression created by the statement is that the plaintiff was alone at that stage. Z said in the statement that while she was in the bedroom in the house, the plaintiff entered the bedroom, pushed her onto the bed, lifted up her skirt, shifted her panty and then penetrated her. She said:

Then he started to rape me for a long time without resting. After he had finished to ejaculate he had leave me. He had raped me once without a condom ... .

9	The plaintiff also made a statement to the police on 13 January 2013.The statement of the plaintiff records that he said he had seen Z twice in the period he regarded as relevant. The first occasion was in November 2012 at about 17h30. The plaintiff could not remember the exact day. The plaintiff said that when Z arrived, he, M. and persons called respectively Refiloe, Mantsho (a lodger) and Panama (a relative of one of the others present) were cleaning the
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yard. At the time Z was eating ice. M. asked Z to buy ice for her. Z then went to the shops.

10	The plaintiff's statement continued to record that the plaintiff said that since that day, he had not seen Z until 8 January 2013, when Z came to the house. The plaintiff said that he offered Z food and went to sleep. When he woke up, he found Panoma in the house but Z was no longer there.

11	Operating within the area serviced by the Khutsong police station is an SAPS unit called the Family Violence, Children and Sexual Offences Unit (FCS). At the time it had about ten investigators. W/O Tenyane was one of them. Tenyane was appointed to investigate the complaint made by VR. I think it is important for an understanding of this case to know, as any judge in this Division will affirm, and as Tenyane did in evidence, that the incidence of rape in general and of child rape in particular within this Division is so great that it can be described as a plague. Those within the justice industry who deal with these cases are overworked. Many suffer the emotional consequences of dealing with the unique kind of suffering caused by these crimes. In my own experience, after one has encountered what the Supreme Court of Appeal has described as the worst kind of rape imaginable, one proceeds to hear another case which is even worse.
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12	Standard operational procedure required Motlhale to hand the case over to Tenyane for further investigation. But before he did so, Motlhale arrested the plaintiff on a charge of raping Z. He read the plaintiff his constitutional rights, took the plaintiff's statement and had him locked in the police cells.

13	As Motlhale had arrested the plaintiff without a warrant, the arrest can only be justified in law if the arresting officer held, at the time of the arrest, a reasonable suspicion that the plaintiff had committed the crime alleged. And then the officer is vested with a discretion whether or not to arrest. That is the effect of s 40(1)(b) of the Criminal Procedure Act, 51 of 1977. That the arresting officer indeed held such a suspicion was the defence pleaded by the first defendant (the Minister). The onus of proving this defence, it was  accepted by counsel, rested on the Minister.

14	The difficulty facing the Minister in this regard is that Motlhale, who testified at the trial, did not say that he held any suspicion at all. His approach to his power of arrest is that when he is in possession of a statement directly implicating an identified suspect in the crime of rape, he must arrest. There was no evidence on which Ican conclude that Motlhale applied his mind to the crucial jurisdictional facts which must  exist   to  justify   the   deprival   of   freedom   under  these
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circumstances. His approach was that it was for those investigating the crime to determine whether the case warranted prosecution. In these circumstances, as I see it, it is of no assistance to the Minister to argue, as counsel did, thatif Motlhale had appreciated that he had the power to arrest contingent upon the formation of a reasonable suspicion, he would have been entitled to form the necessary suspicion. The section requires the actual subjective existence of a suspicion in the mind of the arresting officer. Absent such a suspicion, the arrest cannot be justified under the section.

15	I accordingly cannot find that the Minister has justified the arrest. It was therefore unlawful. To jump ahead somewhat, the plaintiff was taken to court the next day, Monday 14 January 2013. He was assigned an attorney instructed bythe Legal Aid Board. An application for bail was made on behalf of the plaintiff. Bail was refused by the presiding magistrate. The record of the bail application, the evidence adduced and the reasons of the presiding magistrate could not be obtained. A transcript was made of part of the proceedings during the later bail hearing but it is not of any assistance. The evidence before
me is that both Tenyane and the plaintiff gave evidence at the bail hearing viva voce and that no affidavits were presented to the court as is sometimes the case in bail hearings in the magistrates' courts.

16	To revert to the events of the previous day, Sunday 13 January 2013. Efforts had been made on the Saturday to have Z medically examined. But the medical authorities had said that Z must come back the next day as time was not of the essence because the alleged rape had taken place so long before. On the Sunday afternoon, however, Z was examined by Dr Makgaba at Carltonville. The findings were recorded on the usual form J88. On examination the doctor found the hymen intact and noted no injuries. In relation to Z's mental health and emotional status, the doctor recorded that Z was not distressed. There was no evidence of drugs or alcohol. In the block for conclusions, the doctor merely noted "patent hymen". Z's urine was tested for pregnancy. The test was positive, indicating that she was indeed pregnant.

17	Tenyane diligently applied himself to his duties. On the Saturday, already, he visited what he called the scene of crime, ie the house in which the plaintiff lived. He found nothing of any significance there. After the plaintiff was refused bail on the Monday, Tenyane traced and interviewed Refiloe, Panama and Mantsho. Their statements reveal that one of them supported the plaintiff's version while the others were neutral. None advanced the state case. None of them gave evidence before me. Nor did the plaintiff s girlfriend or any other member of her family who had been present at the meeting on 12 January 2013.
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18	Z promptly underwent an abortion. During March 2013, foetal and other material from Z was sent off for analysis together with a DNA sample from the plaintiff. There is a dispute in the evidence about whether the DNA testing took place at the insistence of the plaintiff or because it is routine in such cases. Nothing turns on this issue and I shall not try to resolve the dispute.

19	The samples were analysed inthe Forensic Science Laboratory of the SAPS. The result of this analysis was communicated to the police in Carltonville under cover of a letter signed by the forensic head of the Laboratory on 24 June 2013. The letter records that the plaintiff could be excluded as the biological father of the foetus. The letter reached the FCS unit on 16 July 2013.

20	There was some investigation during cross-examination whether the samples had been assembled, despatched and analysed, the results transmitted and the plaintiff informed of the results with reasonable promptness. As any remissness in this regard was not raised in the pleadings and the question was not fully canvassed, I need not deal with this aspect. Suffice it to say that the fact of the results was recorded in the docket diary for the attention of a colonel in the SAPS on 19 July 2013 and on 23 July 2013, the colonel recorded that the DNA excluded the plaintiff and directed that the docket should be
19	

taken to court. On 25 July 2013, the appellant appeared in court. The charge against him was withdrawn and he was released.

21	In light of my finding that the arrest of the plaintiff on 12 January 2013 was unlawful, the remaining issue on the merits of the case is whether the plaintiff is entitled to damages arising from the bail application in the magistrate's court on 14 January 2013.

22	Counsel argued this part of the case for the plaintiff on two bases. The first was that the DPP or his delegate failed to appreciate that the charge of rape could not succeed. The second was that Tenyane made certain misrepresentations in his evidence which caused the court to refuse bail on the day the plaintiff was first brought before court. This second basis was not pleaded but I shall consider the claim as if it had been pleaded. The issue was fully canvassed and the defendants are not prejudiced by the inadequacy of the plaintiff's pleading. No objection was made in this regard and if one had been made, I would probably have allowed an amendment to cover the question.

23	The first basis amounts to a claim of negligent prosecution. The contention is that a prosecutor who receives a docket after a person who has been arrested for the purpose of representing the state in
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that person's first appearance in court must make an assessment of the state's prospects of success and take a decision whether the case should be allowed to continue. In the case of the plaintiff, counsel submit, any reasonable prosecutor should have appreciated that the case against the plaintiff could never succeed and should there and then have withdrawn the case.

24	This cause of action was not known to our common law, which recognised in this field only the delict of malicious prosecution, a claim which arises, all other things being equal, when the defendant sets the criminal law in motion against a plaintiff while knowing full well that the prosecution cannot succeed. This was not the case here. Mr Simelane, the Senior State Prosecutor at the Oberholzer magistrate's court, where the plaintiff's case was heard on 14 January 2013, gave evidence. From his evidence it is clear that he considered dispassionately whether the evidence at that stage available to the state justified the continuation of the prosecution and decided that he did. Mr Simelane's bona fides are not disputed.

25	Counsel submitted on the strength of Woji v Minister of Police,with which I shall deal later in relation to what I have called the second basis, that our law had recognised the delict of negligent prosecution.

Counsel also relied on Stemar v Minister of Police and Another, a case decided in this court under case no 4789/2012 on 16 May 2014, and Booi v Minister of Safety and Security, a case decided in the Northern Cape Division under case no 1402/08 on 28 February 2014.

26	I do not read any of these cases as developing the common law so as to create the delict of negligent prosecution. In the absence of authority binding on me, I view such a development of the common law as undesirable. It would have a harmful effect on the administration of the criminal law if prosecutors ran the risk of being held liable in damages if they honestly applied their minds to the question whether a case should be withdrawn at the first appearance of the accused in court and negligently decided that the case should not be withdrawn. In the vast majority of cases and nearly all, if not all, serious cases, further investigation is required after the first appearance of the accused in court before the case is ready for trial. Recognising the delict  of negligent prosecution would require a prosecutor to anticipate the outcome of the investigation. It would also enable an accused person to place pressure on a prosecutor by suggesting personal liability or damage to the prosecutor's career prospects if the case were allowed to continue past the first appearance in court. In short, a prosecutor who ran the risk of being held liable for negligent prosecution would find it difficult to carry out
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his duties without fear as required under s 176(4) of the Constitution. Wealthy or powerfully placed accused persons would be able to deflect the criminal proceedings into a consideration, adjudicated in the civil courts parallel to the prosecution, about whether the prosecutor was or was not negligent in refusing to withdraw the charge. This would cause much delay and confusion. There are institutions which mitigate the harm that befalls an accused person who is prosecuted unsuccessfully. Irefer here particularly to the power of the court to admit an accused person to bail.

27	But it is not necessary for me to come to a final conclusion in this regard. If the delict of negligent prosecution exists, which I shall assume, the onus would rest on the plaintiff to prove the elements of the supposed delict. I do not think that it can be said that Mr Simelane negligently failed to withdraw the charge against the plaintiff on 14 January 2013. He had before him in the docket the statement of Z in which she directly alleged being raped by the plaintiff "for a long time", the statements of VR and the plaintiff and the J88. Against that there was the evidence on the form J88 of an intact hymen and an absence of injuries. But supporting the allegation of unlawful sexual intercourse was the strong evidence that she had, although her hymen was on the evidence then available still intact, been impregnated. There was thus the possibility, to put it at its lowest, that the person who impregnated
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Z was guilty of  having unlawfully had intercourse with a minor. Furthermore, although the plaintiff's version was that when Z came to the house in which the plaintiff lived in November 2012, there were several other persons present, the plaintiff did admit to an incident in January 2013 when Z came to the house and found him there alone. Mr Simelane pointed out in his evidence that when the plaintiff gave his statement, the plaintiff knew what Z's version was and Mr Simelane concluded that the possibility that the plaintiff had tailored his eviderice to fit in with the state case ought not to be excluded at that stage.

28	Finally, on one reading (which I myself favour) of VR's statement, VR's version was that Z had missed her October 2012 period. This would put the date of conception in October 2012 and cast doubt on Z's version. Added to that is the improbability that a prolonged rape would have left Z's hymen intact. But against that, as Mr Simelane pointed out, isthe possible reading of VR's statement to the effect that VR was saying that Z had only first missed her November period. I regard this alternative reading as strained and implausible. The rape allegedly took place on 28 November 2012. It is unlikely in the extreme that in these circumstances VR believed that Z had missed the onset of her period on 29 or 30 November.
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29	But it must be remembered that these statements were taken in English, a language in which neither the witnesses nor those who took the statements were fluent, and that the statements had been taken shortly after the high emotional drama of that weekend. Seen as at 14 January 2013, it was possible that further investigation would eliminate the apparent weaknesses in the state case. Mr Simelane had to choose between allowing the case to go forward for further investigation or provisionally withdrawing it at that stage. Ido not think that a reasonable prosecutor ought to have withdrawn the case at that stage. There was enough in the docket to warrant the case's remaining on the roll.

30	For these reasons, I do not think that the plaintiff proved a case of negligent prosecution. There remains the submission that misrepresentations made by Tenyane caused the magistrate to refuse bail to the plaintiff when he applied for bail on 14 January 2013.

31	Tenyane testified to the pressure that members of the community place on police officers in his position to make efforts to ensure that persons charged with sexual offences, particularly against minors, are not granted bail. That there is often public outcry in cases where such accused persons are granted bail is something of which Iam prepared to take judicial notice. Deplorably, such public protests usually have
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no regard to factors which should weigh with a court in the exercise of its power to grant bail. Tenyane admitted that he was influenced by the public opposition to bail in these cases in his approach to the plaintiff's request for bail. Added to this is the revulsion against the perpetrator caused by exposure to such cases and felt by many decent people, such as Tenyane. And Tenyane was entitled to accept
that someone had had sexual intercourse with Z, because she was pregnant, and that generally the victim of a sexual offence does not point out an innocent man as the perpetrator. In short, Tenyane thought that the right man had been arrested.

32	It is the invariable practice, I was told, that the investigating officer must complete a checklist of factors relevant to the grant of bail before the first appearance of an arrested person in court. Tenyane completed such a checklist. The first question on the checklist is whether the accused has a fixed address. This is an important consideration in the assessment of a bail application.

33	Tenyane declared on the checklist that the plaintiff had no fixed address. He tried to justify this palpable untruth on the ground that the plaintiff lived with his girlfriend in his girlfriend's house. On this footing all the members of a household except the householder would be without fixed addresses. Tenyane also asserted on the checklist that
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the plaintiff could easily evade arrest if released, would be difficult to trace, had interfered or would interfere with the prosecution, was a danger to the community, might commit further offences and should be kept in custody for his own safety. He also described the reaction of the community to the crime as "bad". Tenyane recommended that bail be opposed.

34	Unfortunately, there is no record at all of the bail application. I accept however that Tenyane testified at the bail application in accordance with the checklist. In so doing, Tenyane deliberately misrepresented the facts I have mentioned in order to mislead the court hearing the bail application into refusing it. As he admitted, he falsified the evidence because he did not want to incur the anger of the community that was likely to be directed at him if the plaintiff were granted bail. In Woji, supra, the SCA found that the investigating officer misrepresented certain facts relevant to the grant or refusal of bail which had caused bail to be refused, something which would not have happened in that case if the investigating officer had told the truth. In para 28 of that judgment, the SCA pointed out that the Constitution imposes a duty on all organs of state, such as Tenyane, not to perform any act that infringes rights such as freedom, human dignity, freedom and the security of the person. The court found that the failure to observe this public duty gave rise to a private law breach of
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the appellant's right not to be unlawfully detained which might ground a claim for compensation by way of damages. In addition, the court observed, the appellant was entitled to have his right to freedom protected by the state.

35	In Isaacs v Minister van Wet en Orde it was held that the refusal to grant an accused person bail at the first hearing after his arrest and to remand the accused in custody rendered the further deprivation of freedom lawful despite the fact that the arrest, and therefore the deprivation of freedom prior to that moment, had been illegal. In the circumstances I have described, Woji held that the principle in Isaacs was not applicable. The court held, on the facts of that case, that the misrepresentation by the investigating officer caused the appellant's further detention and that the appellant was entitled to damages arising from the misrepresentation.

36	Tenyane undoubtedly failed to perform his public law duty in this regard. What were the consequences of his failure for the plaintiff?

37	The difficulty in the way of a finding that Tenyane caused the continued deprivation of freedom is that there is neither a record of the bail hearing nor any indication at all of the grounds on which the

court refused bail. The matter is complicated further by the fact that a person charged with rape who seeks bail must show exceptional circumstances. The plaintiff was legally represented. It would have been a relatively easy task to show through cross-examination that Tenyane had given false information to the court and to demonstrate the weaknesses in the state's case. The case for the plaintiff is that Tenyane's false evidence caused his deprivation offreedom after 14 January 2013. In the absence of any indication why the magistrate
ruled against the plaintiff inthe bail application, Icannot find that it did.

38	But that in my view is not the end of the matter. By completing the checklist and testifying as he did, Tenyane violated the plaintiff's right to dignity. He did so with the purpose of violating the plaintiff's right to freedom. That Tenyane may have failed to achieve his goal and that the plaintiff might have been refused bail on other grounds which were legitimate or at least unassailable in the present context, does not render Tenyane's actions lawful.

39	In these circumstances, I think that it would be just to include in the award of damages I intend to include a component which recognises, and deplores, Tenyane's conduct.

40	I proceed to an assessment of the plaintiff's damages. The plaintiff was subjected to the humiliation of an arrest at the instance of a member of his own girlfriend's family. The plaintiff's evidence before me that he had literally never touched Z was not disputed. The circumstances of Z's impregnation lead one to conclude that she had probably engaged in adolescent sexual activity which led to her partial penetration, to the premature ejaculation by Z's partner and to Z's pregnancy. Z was probably lying when she identified the plaintiff as the father of her unborn child. On the evidence before me, I have no hesitation in finding that the allegation of rape made against the plaintiff was false, probably made by Z to protect her true, much younger, sexual partner. The plaintiff was accommodated during the first part of his detention in a police cell with the attendant overcrowding and disgusting sanitary facilities that are the norm in the arrest cases that have come before me. Counsel for the defendants submitted that an amount of R90 000 would be appropriate under this head of damages and I am prepared to accept that submission as correct.

41	In regard to the misrepresentations of Tenyane about why the plaintiff should be refused bail, the plaintiff was subjected to hearing himself described in court, untruthfully and by someone whom the Constitution requires to uphold his rights of personality and freedom,
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as a disreputable person whose personal circumstances militated against the grant of bail. Tenyane knew that his opinion would carry great weight with the court; indeed his evidence was that if he had not opposed bail, it would have been granted to the plaintiff. Ithink that in this regard Tenyane overstated the influence of his opinion and underestimated the potentialweight of the prosecutor's arguments but that Tenyane held this opinion shows that he knew that a heavy burden of responsibility rested on him to act responsibly and honestly in relation to the bail application. Ithink that this is a serious injury and I award the plaintiff under this head R60 000.

42	As to costs: some of the legal questions raised were new or relatively new. Iam not aware of a case in which a plaintiff who could not prove that the misleading evidence of an investigating officer caused his further detention was awarded damages because the investigating officer tried by misleading the court to achieve that end. I therefore intend to award the plaintiff the costs of two counsel. Although the plaintiff has been unsuccessful as against the second defendant, the OPP, the costs were not materially increased by the joinder of this official as a defendant.
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43	I make the following order:

1	There  will  be judgment  for  the  plaintiff  against  the  first defendant for R150 000.
2	The first defendant must pay the plaintiff's costs including his costs consequent upon the employment of two counsel.

__________________________
NB Tuchten Judge of the High Court
19 October 2015
For the plaintiff:
Adv TP Kruger and Adv SL Cliff Instructed by
Bares & Sasson Attorneys Pretoria

For the defendants: Adv HOR Modisa
Instructed by the State Attorney Pretoria

MatshegoMinDPP68353.13