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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)      NOT REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

(3)      REVISED

Case No. 14026/2014

8/8/2018

 

In the matter between:

 

DUMISANI JOHANNES THWALA                                                       PLAINTIFF

 

And

 

THE MINISTER OF POLICE                                                                 FIRST DEFENDANT

 

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS                                                                                      SECOND DEFENDANT

JUDGMENT

 

MILLAR, AJ

1.         The plaintiff instituted an action against the defendants for damages suffered as a result of what is alleged to have been an unlawful arrest and subsequent malicious prosecution respectively.

2.         The plaintiff applied, unopposed, at the commencement of the hearing for an order separating the issues of liability and the quantum of damages in terms of rule 33(4). I granted the order and the matter proceeded for the determination of liability with the quantum of damages postponed sine die.

3.         The plaintiff was the only witness called for his case. The defendants called the Public Prosecutor and two of the police officers as witnesses. Save for the plaintiff who testified in isiZulu and whose evidence was translated, all the other witnesses testified in English.

4.         The plaintiff testified that in the afternoon of 28 May 2012 he had been driving his vehicle in Volksrust when a police vehicle had cut in front of him and blocked his path of travel. A policeman, Sgt. Koch had knocked on his window and told him to alight the vehicle. Another policeman, Warrant Officer Maseko had moved to the passenger side of the vehicle and was carrying a shotgun. A discussion ensued as a result of which the plaintiff had telephoned his attorney and arranged to drive to the attorney's office. The attorney worked from home.

5.         The police followed him there. When they arrived, a discussion took place. The plaintiff was told of the theft of the cattle and denied any knowledge of it. The plaintiff was told to wait there. The police left and a few hours later returned and arrested the plaintiff. He was taken into custody and appeared in court the next day. Application was subsequently made for bail, but this was refused. The plaintiff was only granted bail on 30 November 2012. The case against him was remanded a number of times and only came to trial on 29 August 2013. He conceded that his attorney in the criminal proceedings had been furnished with the docket but said that he had never discussed it with or explained its contents to him.

6.         At the close of the state's case the plaintiff was discharged in terms of section 174 of The Criminal Procedure Act 51 of 1977. The plaintiff testified that he can read neither English nor Afrikaans and so it was only when his present attorney of record had obtained a copy of the docket and explained its contents to him that he realized that the state had never had a case against him.

7.         The state called Mr. Sibanyoni, the Public Prosecutor. He testified that he decided to pursue the prosecution against the plaintiff based on the statements in the docket which had been tendered into evidence. He also testified that he had consulted with Sgt. Koch and that based on information conveyed to him by Sgt. Koch in consultation, his decision to pursue the prosecution was fortified. He conceded in cross-examination that at the close of the state's case in the criminal proceedings he had informed the court that he had no basis to oppose the application made by the plaintiff for a discharge. He blamed the granting of the discharge on Colonel Mthethwa, one of the officers who had investigated the matter and who he said had testified poorly.

8.         Warrant Officer Maseko ("Maseko") testified that he and Colonel Mthethwa ("Mthethwa") had assisted Sgt. Koch ("Koch") with the investigation and had gone to the home of Chief Moloi ("Moloi")in Daggakraal. They had done this as there had been a function held there and wanted to find out where the meat served had been purchased. They had arrived there and had spoken to the nephew of Moloi who had told them that he did not know where the meat had come from but had seen a "white bakkie with a canopy" leaving the premises. They had found left-over meat and took some samples for forensic testing. Moloi for his part told them that the meat had been bought from the plaintiff and offered to take them to him. On the way, Moloi, whose vehicle they had been following pulled over. Moloi alighted and told them that he had reconsidered his position and had decided to remain silent and would not co-operate with them further.

9.         Koch has been a policeman for 24 years and has lived and worked in the Volksrust area for most of his life. At the end of April 2012, he had received a complaint from a farmer by the name of van Niekerk that three of his cattle had gone missing and were 3uspected stolen. He had begun investigating and an informer had directed him to a place on a stream in the vicinity of Daggakraal where three bags had been found. Inside the bags were the skins of the three cattle to which the heads were still attached. The skins bore the brand mark of van Niekerk and still had the yellow identity tags in the ears. The cattle were positively identified by van Niekerk as his. He asked Maseko and Mthethwa to assist with the investigation.

10.       They had informed him of what transpired during their visit to Moloi's home and deposed to affidavits recording this. An affidavit was also obtained from the nephew of Moloi.

11.       He testified that he knew the plaintiff because of his prior involvement in similar cases. He then sought on the basis of the affidavits of Mthethwa, Maseko and the nephew, warrants of arrest for both Moloi and the plaintiff. The warrants were issued on 3 May 2012.

12.       The warrants were issued. He was able to execute the warrant of arrest against Moloi a few days later. He testified that when he first arrested Moloi he had elected to remain silent but that a few days later, he had interviewed him again and, on this occasion, he had told him that he had purchased the meat from "Tumi Molefe." Molefe had bought the meat at the Ermelo Auction and had been driving a green Nissan 1400 bakkie. This version of Moloi was recorded in an affidavit which made its way into the docket some months later.

13.       Even though he now had conflicting statements as to what had been said by Moloi, he was of the view that there was still a basis to execute the warrant and arrest the plaintiff. This was because he knew the plaintiff owned a white bakkie with a canopy, lived some 2- 3 kilometers away from the stream where the skins had been found and also lived along the road that Chief Moloi had taken when Mthethwa and Maseko had asked him to show them where the plaintiff lived. He had investigated Moloi' s allegation that the meat had been sold to him by Tumi Molefe. No such person or green Nissan 1400 bakkie could be found in the district and the records of the Auction at Ermelo did not reveal any buyers or sellers by the name of Molefe during the relevant period.

14.       He confirmed the plaintiff's version of what had transpired on the day of arrest. The 281 day of May 2012 and explained that he and Maseko had gone back to the Police Station to fetch the original warrant and to make a copy as the plaintiff's attorney had demanded to see it before he would advise the plaintiff to acquiesce to his arrest.

15.       Once the plaintiff was arrested, his vehicle was seized. In the back of the vehicle he had found "red dust" which he surmised was dried blood. Samples were taken and sent for testing along with the samples taken from the skins and the meat. Subsequently, the result of the tests revealed that the meat was linked to one of the skins. The red dust was confirmed to be cattle blood but could not be linked to the skins or the meat.

16.        The plaintiff has brought two different claims. The requirements for each differ. I propose dealing with the claim for unlawful arrest and detention against the first defendant and thereafter the claim for malicious prosecution against the second defendant.

17.       It was common cause between the parties, having been pleaded by the plaintiff that the warrant in terms of which the arrest was effected was lawfully issued[1]. The causa pleaded for the unlawfulness or wrongfulness in its execution was that:

 

"During the time of the arrest of the plaintiff, the aforesaid members failed to exercise their discretion lawfully as contemplated in Section 44 of Criminal Procedure Act as they arrested and/or effected the warrant of arrest against the plaintiff despite having received information on 22 May 2012 which totally excluded the plaintiff from committing the offence for which he was being arrested for on the strength of the aforesaid warrant."

 

18.       The applicable law has been comprehensively summarized by Plasket J in Weitz v Minister of Safety and Security and Others[2]

 

[12]      Even when a warrant of arrest has been issued a peace officer has a discretion as to whether or not to execute it. In Minister of Safety and Security v Sekhoto & another [1] Harms OP held that '[o]nce the jurisdictional facts for an arrest, whether in terms of any paragraph of s 40(1) or in terms of s 43, are present, a discretion arises' and that the peace officer 'is not obliged to effect an arrest'. And in Domingo v Minister of Safety and Security [2] Chetty J, in this court. held that the 'trial court's finding that, once armed with a warrant, the arrestor . . . was duty bound to arrest the plaintiff without further ado, was wrong and amounts to a clear misdirection'. The discretion to arrest or not obviously must be exercised properly.[3]

 

[13]       In Sekhoto, Harms DP stated, in summary, that the discretion must be exercised 'in good faith. rationally and not arbitrarily'.[4] Earlier in the judgment, however, he had surveyed both South African and foreign decisions, especially English cases, and had found that the discretion could be attacked on the basis of the grounds set out - and followed consistently for over a century - in Shidiack v Union Government (Minister of the lnterior)[5] as well as on the further basis of irrationality.

 

19.       Did Koch exercise his discretion properly in disregarding the conflicting statements of Moloi and attaching undue weight to the circumstantial evidence that he had at his disposal? All that was required of Koch in deciding to exercise his discretion to execute the warrant was that he had a “reasonable suspicion[3]”.

20.       The warrant issued specifically states that it was issued on this basis. There is no reason why, once it was issued, that even if further information was received, Koch should exercise his discretion otherwise - provided that his suspicion remained a reasonable one[4]. Having regard to the evidence of Koch, he did not stop his investigation once the warrant was issued. He continued his enquiries in order to ascertain whether the new allegations of Moloi would exonerate the plaintiff and when this investigation came to nought, was fortified in his view that there was a reasonable suspicion that the plaintiff had been involved in the commission of the offence.

21.       I find that he did consider all the evidence that was in his possession at the time that he executed the warrant and that his discretion to do so had been properly exercised. The discretion to arrest having been properly exercised , it follows that the claim for unlawful or wrongful arrest and detention from the time of the arrest until the plaintiff was brought before court on 29 May 2012 must fail.

22.       The claim against the second defendant for Malicious Prosecution was framed in the pleadings as follows:

 

"the Second Defendant wrongfully and maliciously set the law in motion by laying a false charge of stock theft against the plaintiff.....When laying the false charge and giving the disinformation. the Defendant's had no reasonable or probable cause for doing so, nor did they have a reasonable belief in the truth of the information given or placed before them."

 

23.       It is apparent from the evidence that the prosecution of the plaintiff was stillborn from the start. While Koch may have had reasonable suspicion to effect the arrest of the plaintiff, he could not as a lay policeman have been expected to appreciate the admissibility or otherwise of the evidence in the docket. This assessment falls within the domain of the prosecution service.

24.       Once the docket was handed to the Public Prosecutor (initially a Mr Gumbi and thereafter Mr Sibanyoni) and the plaintiff appeared in court, the position was somewhat different. The Supreme Court of Appeal in Minister of Police and Another v Du Plessis[5]_stated:

 

''[29]    In Democratic Alliance v President of the RSA and others [2012] 1 All SA 243 (SCA) this court, after a discussion concerning prosecutorial independence in democratic societies, quoted, with approval, the following part of a paper presented at an international seminar by Mr James Hamilton, a then substitute member of the Venice Commission and Director of Public Prosecution in Ireland: 8

 

'Despite the variety of arrangements in prosecutor's offices, the public prosecutor plays a vital role in ensuring due process and the rule of law as well as respect for the rights of all the parties involved in the criminal justice system. The prosecutor's duties are owed primarily to the public as a whole but also to those individuals caught up in the system, whether as suspects or accused persons, witnesses or victims of crime. Public confidence in the prosecutor ultimately depends on confidence that the rule of law is obeyed.•9

 

We should all be concerned about the maintenance and promotion of the Rule of Law. Given increasing litigation involving the NDPP, these principles cannot be repeated often enough. We ignore them at our peril.

 

[30]     A prosecutor exercises a discretion on the basis of the information before him or her. In State v Lubaxa 2001 (2) SACR 703 (SCA) para 19 this court said the following:

 

'Clearly a person ought not to 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 That 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 (s 10 ands 12) seems to reinforce it. It ought to follow that if a prosecution is not to be commenced without that minimum of evidence, so too should it cease when the evidence finally falls below that threshold.'

 

25.       On consideration of the evidence as a whole by Gumbi or Sibanyoni would have made it clear that there was no reasonable prospect to secure a conviction. From the time of the plaintiffs first appearance in court and through his subsequent unsuccessful bail applications until 30 November 2012, the prosecution's case reached no higher watermark than the evidence upon which Koch had based his suspicion. It was in fact weakened once the DNA testing of the red dust and written statement of Moloi were placed in the docket.

26.       "[34] Prosecutorial authorities no doubt have an onerous task, faced as they are with clogged court rolls and the pressures of collating and analysing the evidence in their dockets. In May v Union Government 1954 (3) SA 120 {N) at 1280-E Broome JP, in dealing with warrants issued at the instance of prosecuting authorities, said the following:

 

'It may be objected that this view of the law places an intolerable burden upon prosecuting authorities in that they must, at their peril, come to a correct conclusion of law before they apply for a warrant of arrest. What of cases where the facts are known with certainty but a genuine doubt exists as to whether those facts constitute an offence? Are suspected persons, in such cases, to be allowed to be at large, however serious the offence which their conduct is believed in law to constitute? There are two answers. First, even if the burden upon prosecuting authorities is heavy, the subject's right to personal liberty requires that the burden should be imposed. . . '

 

That comment is apt. A prosecutor’s function is not merely to have the matter placed on the roll to then simply be postponed for further investigation. A prosecutor must pay attention to the contents of his docket. As set out above, a prosecutor must act with objectivity and must protect the public interest. In the present case that was not done."[6]

 

27.        The concession by Sibanyoni that he could not oppose the plaintiff s application in the criminal trial for a discharge is to my mind indicative of the fact that had either he or Gumbi properly applied their minds to the contents of the docket and the available evidence sooner, which they did not, the plaintiff would not have been prosecuted or detained from 29 May 2012 until he was granted bail on 30 November 2012.

28.       In the circumstances I make the following order:

28.1    The plaintiffs claim against the first defendant is dismissed with costs.

28.2     The second defendant is liable for such damages as the plaintiff may prove arising out of the malicious prosecution and wrongful detention of the plaintiff from 29 May 2012 to 30 November 2012.

28.3     The second defendant is ordered to pay the plaintiff s costs.

28.4     The quantum of damages of the claim against the second defendant is postponed sine die.

 

 

 

A MILLAR

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

HEARD ON:                                                3 & 6 AUGUST 2018

JUDGMENT DELIVERED ON:                 8 AUGUST 2018

 

COUNSEL FOR THE PLAINTIFF:           ADV L KALASHE

INSTRUCTED BY:                                     MJALI & ZIMEMA ATTORNEYS

REFERENCE:                                             MR M MJALI

 

COUNSELFOR THE DEFENDANT:        ADV L PRETORIUS

INSTRUCTED BY:                                     THE STATE ATTORNEY

REFERENCE :                                            MR D OLDWAGE

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