---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)           REPORTABLE: NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED

15 August 2020

CASE NO: A307/19

 

In the matter between:

 

HARDY GERMISHUYS                                                                                              1^st Appellant

G4S SECURITY SOLUTIONS (SA) (PTY) LTD                                                        2^nd Appellant

and

FRANS MAFA MASILELA                                                                                         Respondent

JUDGMENT

MOKOSE J

[1]           The appellants are appealing against the whole judgment and order of the Magistrate sitting at Pretoria North in which the Magistrate granted pecuniary and general damages to the respondent arising from an arrest in which the respondent was charged with theft. The respondent initially opposed the appeal but has since withdrawn his opposition thereto.

[2]           The common cause facts are briefly that the respondent had been employed by the second appellant as a security guard and that on 22 January 2015 he was arrested.

[3]           On the morning of 19 January 2015 the first appellant was telephoned by the IT Manager about a break-in that had occurred the previous night. On investigation by reviewing the CCTV footage, the first appellant identified an officer who took the computer through a window.

[4]          The respondent testified that he had been working the night shift with six other security officers including the supervisor on the night in question. He had left the premises with the other security officers in the morning of 19 January 2015 at which time he had not been aware of any incidents. He testified that they all caught the same transport when they knocked off in the morning.

[5]        On the morning of 22 January 2015 the respondent arrived at the site where he had been posted for day shift duties. A supervisor collected him and took him to the head office of the second applicant where he met with the contract manager, the first applicant. He was then advised that there had been a theft at the premises of a computer and that he was the suspect. He was then arrested on suspicion that he had stolen a computer which was situated inside the building,

[6]        In evidence, the respondent averred that he never had access to the building and was only able to access the guard house. He explained that he, together with his colleagues, patrolled the outer perimeter of the property. He was aware that the premises had CCTV cameras which were monitored off site. He was arrested, handcuffed and transported to the local police station in the back of a police van. He was charged on his arrival at the police station with the theft of a computer. He subsequently appeared in court and was granted bail

[7]        After several appearances, the criminal charges were withdrawn for lack of evidence. The respondent testified that no disciplinary hearing was held and that he was dismissed from the employment with the second appellant. He was unemployed for a period of three years thereafter.

[8]          The first appellant gave evidence in his own case and on behalf of the second appellant. He testified that on the morning of 19 January 2015 he was told by the client that a computer had been stolen from the premises overnight. He had a look at the CCTV footage where he saw the computer removed from the office. He confirmed that he watched the footage with the IT manager and identified the respondent as the perpetrator of the crime.

[9]          The first appellant testified further that he reported the matter to the police and opened a criminal case. He testified that he did so on behalf of his clients as he was the security manager for the client. He gave the police the suspect's name. He testified that after the respondent was arrested, he was suspended from his duties and he never saw him again. The respondent absconded from work as he never returned to work after he was granted bail. A disciplinary hearing was supposed to have been arranged and held by head office of the second respondent.

[10]       The first appellant conceded that he did not personally hand the memory stick which contained the evidence to the police neither did he have a copy of such footage. He confirmed that he did the investigations into the theft where after a report was drawn.

[11]      In response to a question in cross-examination of how he identified the respondents as the perpetrator, the first appellant stated that he saw the G4S logo on the perpetrator's back. Furthermore, he looked up and saw his face on the CCTV camera.

[12]      In upholding the plaintiffs claim, the court a quo held that the charges against the plaintiff were malicious. He was therefore injured in his persona, the result of which was that he was discharged from his employment and did not have employment for a period of three years thereafter. The court held that the institution of criminal proceedings by the defendant against the plaintiff was on an incomplete docket and the failure to furnish pertinent evidence in the form of the CCTV footage. It is against these findings that the appeal is directed.

[13]       The appellants contend that the Magistrate erred in that he failed to deal with the requirements for a successful action for malicious prosecution. Furthermore, the appellants contend that the Magistrate erred in not dealing with the evidence before him in terms of the guidelines as set out in the matter of In the matter of Stellenbosch Farmers' Winery Group Limited & Another v Martell et Cie & Others[1] being the technique used to resolve two irreconcilable versions.

[14]       Malicious prosecution is the wrongful and intentional assault on the dignity of a person encompassing his good name and privacy. To succeed in this action, one must allege and prove the following:

(i)         that the defendant set the law in motion by instigating or instituting proceedings;

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

(iii)         the defendant acted with malice (or animo injuriandi); and

(iv)         that the prosecution failed.

These requirements were set out by the SCA in the matter of Minister of Justice and Constitutional Development & Others v Moleko[2] and have been re-stated in the matter of Rudolph & Others v The Minister of Safety and Security & Another[3]. In so far as the claim is concerned requirements (i), (ii) and (iv) are not in dispute by the appellants.

[15]      The requirement of malice has been discussed in many a case. The approach adopted by the SCA is that, although the expression of 'malice' is used, the claimant's remedy in a claim for malicious prosecution lies under the action injuriarum and that what has to be proved is animus injuriandi. In the matter of Minister of Justice and Constitutional Development & Others v Moleko (supra) at para 64 the court held.

"The defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (dolus eventualis). Negligence on the part of the defendant (or I would say, even gross negligence) will not suffice. "

[16]       The issue in the matter on hand is whether the first applicant, having perused the CCTV footage had acted without probable cause and whether he acted with malice or animus injuriandi.

[17]       The first appellant stood firm in his evidence that he had viewed the CCTV footage and identified the respondent as the perpetrator of the crime. As such, he had reported the matter to the police. He testified further that the footage had been furnished to the police on a memory stick. He has no knowledge of its whereabouts and does not have a copy of the said footage.

[18]       The fact that the footage was not availed to the court does not mean that the court can assume that it does not exist. Accordingly, the court could not conclude that the first appellant had acted without reasonable cause.

[19]      It is also notable that the court a quo failed to recognise that the parties had given versions which were mutually destructive. As such, the guidelines espoused in the matter of Stellenbosch Farmers' Winery & Another v Martell et Cie & Others (supra) should have been followed. The technique was described by the court as follows:

"On the central issue as to what the patties decided, there are two irreconcilable versions So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by the courts in resolving factual disputes may conveniently be summarized as follows:

To come to a conclusion on the disputed issues, a court must make findings on:

(a)                  The credibility of the various witnesses;

(b)                  Their reliability;

(c)                  The probabilities.

As to (a) the court's findings on the credibility of a particular witness will depend on its impression about the veracity ofthe witness. That, in turn, will depend on a number of subsidiary factors not necessarily in order of importance such as:

(i)         The witnesses' candour and demeanour in the witness box;

(ii)        His bias, latent or patent;

(iii)          Internal contradictions in his evidence,

(iv)          External contradictions in what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions;

(v)           The probability or improbability of particular aspects of his version;

(vi)          The caliber and cogency of his performance compared to that of other witnesses testified about the same incidents or events.

As to (b), a witness' reliability will depend, apart from the factors mentioned under (a) - (ii), (iv) and (v) above, on

(i)            The opportunity he had to experience or observe the events in question; and

(ii)          The quality, integrity and independence of his recall thereof,

As to (c), this necessitates an analysis and evaluation of a probability or improbability that each parties' version of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised the probabilities will prevail."

 

[20]     The respondent failed to prove that the first appellant had acted without reasonable and probable cause. He also failed to prove that the respondent acted with malice. Furthermore, the court a quo failed to apply the technique in the Stellenbosch Famers' Winery (supra) in dealing with mutually destructive versions. No credibility finding was made nor was the probability of the evidence tested. Accordingly, I am of the considered view that the court a quo erred in finding on a balance of probabilities that the first appellant had acted with malice.

[21]     In the premises, the appeal is upheld with costs and the order of the court a quo substituted as follows:

"The matter is dismissed with costs."

 

 

MOKOSE J

Judge of the High Court of South Africa

Gauteng Division, Pretoria

 

 

I agree

 

 

MATHUNZI AJ

Acting Judge of the High Court of South Africa

Gauteng Division, Pretoria

 

For the Appellants

Adv CM Rip

instructed by

De Jager Inc

 

Date of Judgment: 15 August 2020

---