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IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NUMBER: 1195/2014

In the matter between:

RONNIE MATLHOMOLA TLADI                                                       APPLICANT

AND

MINISTER OF POLICE                                                            1^st RESPONDENT

MINISTER OF JUSTICE AND                                                 2^nd RESPONDENT

CONSTITUTIONAL DEVELOPMENT

NATIONAL DIRECTOR OF PUBLIC                                       3^rd RESPONDENT

PROSECUTIONS

DATE OF HEARING : 06 APRIL 2017

DATE OF JUDGMENT : 04 MAY 2017

COUNSEL FOR THE APPLICANT : ADV. D. SMIT

COUNSEL FOR THE : ADV. TJIANA

 

JUDGMENT

DJAJE AJ

[1] This is an application to compel the Respondents to comply with the Applicant’s notice in terms of Rule 35(3) of the Uniform Rules of Court dated 1 June 2016.

[2] The Applicant issued summons against the Respondents for damages arising from unlawful arrest, detention and malicious prosecution. There was an exchange of pleadings. On 01 June 2016 the Applicant served a notice in terms of Rule 35(3) on the Respondent to make available certain specified documents amongst others a copy of the charge sheet of the Applicant and the copies of the statements from co-accused or witnesses. On 13 June 2016 the Respondent’s Attorneys sent a letter to the Applicant’s Attorney that the original case docket is missing and the documents required could not be discovered. There were various correspondences between the Attorneys of the Applicant and the Respondents regarding compliance with the notice dated 1 June 2016.

[3] The Applicant seeks an order compelling the Respondents to discover the documents as stated in the notice in terms of Rule 35(3). It is the Applicant’s case that he will not be in a position to proceed with trial without the said documents and that will cause unnecessary delay and he will suffer prejudice. The Applicant argued that the Respondents as custodians of the docket have not made any attempt to explain its whereabouts.

[4] In opposing the application the Respondents filed an answering affidavit stating that the docket is missing or misplaced. Further that the second and third Respondents are not custodians of police dockets and cannot be expected to discover documents that are not in their possession. It is further the Respondents’ argument that in a claim for malicious prosecution the Applicant as the plaintiff has the onus to prove that the prosecution or third Respondent set the law in motion without reasonable and probable cause and acted with malice.  Therefore the Applicant has the onus to establish his case and cannot expect the Respondents to assist him to proof his case.

[5] In the explanatory affidavit Mr Anton Smith who is the Legal Administrative Officer employed by the South African Police Service (“SAPS”) gave a detailed explanation of how the docket went missing or was misplaced. Briefly, his explanation was that the initial investigating officer of the Applicant’s case was Inspector Wiese and when he was transferred to another division the docket was assigned to Inspector Zweni. When Inspector Zweni passed away the docket was allocated to Captain Force. At that time the Applicant was already acquitted and had lodged a complaint with SAPS as to how the matter was finalised. The docket was then referred to the Director of Public Prosecution for advice and the instruction was for the matter to be reinstated. Captain Force has since resigned and his whereabouts unknown. It is therefore not known as to whether the docket was closed or sent to the archives for safe keeping as nothing is reflected on the records kept by SAPS.

[6] Rule 35 makes provision for the discovery and inspection of documents before trial by the parties in civil litigation. This process is crucial as it ensures that issues can be narrowed before trial and parties are aware of all the documentary evidence which is available. See: Durbach v Fairway Hotel Ltd 1949 (3) SA 1081.

[7] Parties are therefore under a duty to discover all documents which may:

“either directly or indirectly enable the party requiring the

affidavit either to advance his own case or to damage the case of his adversary.”

(Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and others 1999 (2) SA 279 (T) at 316-317).

[8] Rule 35(3) make provision for the unsatisfied party to require discovery of additional documents. In the same breath the Rule further provides that the party who discovers should:

“state under oath that such documents are not in his possession in which event  he shall state their whereabouts if known to him”

 (within ten days).

[9] There is no doubt that the Respondents have not complied with the Rule 35(3) notice served by the Applicant. On 13 June 2016 the Respondent’s Attorneys sent a letter explaining that the documents requested to be discovered were missing and could not be discovered. In the answering and explanatory affidavits there is an explanation pertaining to how the said documents could have been misplaced and that the whereabouts of the said documents are unknown by the Respondents. This explanation only relates to the claim for unlawful arrest and detention against the first Respondent.

[10] As far as the claim for malicious prosecution is concerned the Respondents quiet correctly submitted that the onus is with the Applicant to prove that the third Respondent set the law in motion without reasonable and probable cause and acted with malice.  In such instance the Applicant must ensure that he has all the evidence that is required before instituting the proceedings against the third Respondent and not require the third Respondent to assist him to prove his case.

[11] The Applicant alleges in this application that the second Respondent is also a custodian of the documents required in the notice in terms of Rule 35(3). This submission is lacking in substance and cannot be complied with as the custodian of police dockets are the police and not the second Respondent.

[12] In my view, the explanation furnished by the Respondents that the docket is missing and how it was misplaced is acceptable and will not hinder the Applicant in the presentation of his case for malicious prosecution. As such the Applicant is requesting for an order which will be impossible to implement. According to the Legal Administrative Officer of SAPS the docket went missing after the Applicant was acquitted which simply means that at the time the trial commenced the Applicant should have been in possession of the docket and its contents in preparation of the trial.  It is for these reasons that the Applicant’s application should be dismissed with costs.

 

Order

Consequently the following order is made:

1. The application is dismissed.

2. The Applicant is ordered to pay costs of the application.

 

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J T DJAJE

ACTING JUDGE OF THE HIGH COURT

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