---

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

CASE NO: 2816/19

In the matter between:

JONATHAN MOYO                                                                             PLAINTIFF

 

And

 

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS                    DEFENDANT

 

Heard:              03 April 2023

 

Reserved   21 April 2023

 

Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives' email addresses. The date for the hand-down is deemed to be 03 July 2023.

 

ORDER

The following order is made:

 

1.The Plaintiff's claim is dismissed with costs.

JUDGMENT

MAKOTI AJ

INTRODUCTION

 

[1]        On 21 January 2022 1 delivered my first judgement in this matter. The judgement concerned an application for absolution from the instance that was made on behalf of the National Director of Public Prosecutions (the Defendant / NDPP). It is already part of the record of my first judgment that the NDPP is sued for the malicious prosecution of Mr Jonathan Moyo (the Plaintiff / Moyo). The result of the judgement is that I dismissed the application for absolution from the instance and ordered that the trial of case to proceed further.

 

[2]             After a rather lengthy hiatus, the trial eventually resumed on 03 April 2023 for the merits to be finally determined. The remaining evidence took one day to conclude. In my first judgement I canvassed the salient facts, although at that stage based mostly from Moyo's perspective as the Plaintiff. As a result, my main attention on this occasion will be paid towards the evidence that was tendered on behalf of the NDPP. The evidence that was led was that of Adv. Munyai Nkhetheni Gerald (Mr Munyai).

 

ISSUES FOR DETERMINATION

[3]             This Court is indebted to the legal representatives for their endeavours in identifying the issues for determination. The parties were ad idem that the Court was faced with the task of deciding the following three issues:

 

[3.1]         The first, was that the Court had to determine whether in taking the decision to prosecute the Plaintiff for theft of motor vehicle, there existed reasonable and probable cause for the NDPP to do so;

 

[3.2]         The second, was that the Court had to decide whether the decision maker acted maliciously when he took the decision to subject the Plaintiff to prosecution for the crime of theft of motor vehicle; and

 

[3.3]         Lastly, and ultimately, whether the NDPP as the Defendant is liable for malicious prosecution and therefore liable to compensate the Plaintiff the damages that he may be able to prove to have suffered as a result of the prosecution.

 

SUMMARY OF MUNYAI'S EVIDENCE

[4]             Before delving into Munyai's evidence, I wish to briefly recap on Moyo's testimony. He testified that he bought a motor vehicle from Mokotedi. The vehicle did not belong to Mokotedi, but to a lady named Rapoo. As a result, Moyo could not get the transfer of ownership of the motor vehicle as the sale was not legal nor valid. He reported the matter to the police, whereupon a criminal case was opened for theft of motor vehicle, initially only against Mokotedi. Later on and at the instance of the NDPP Moyo was added and prosecuted for theft of motor vehicle.

 

[5]             The facts discussed above are not controversial and appear to be accepted by both parties. It was also Moyo's testimony that he returned the motor vehicle to Mokotedi. He did this for possibly two reasons. First, he returned it because he wanted to get his money back from Mokotedi. Second, he released the vehicle to Mokotedi to enable him to sell it to a new buyer. He confirmed that Mokotedi had advised him that he had gotten a new buyer for the vehicle.

 

[6]             It was on that basis that the impugned decision was taken by the NDPP on 07 August 2012 to criminally prosecute Moyo alongside Mokotedi. The person who took the decision was Munyai. He is a State Advocate and currently attached to the office of the NDPP Polokwane, Limpopo Province. He has been in the employ of the NDPP for a period of more than 26 years. At the time when he took the decision which gave rise to this claim he was based in the Mahikeng office of the NDPP.

 

[7]             Munyai explained that the decision to prosecute Mr Moyo for the crime of theft of motor vehicle was motivated by the fact that he knowingly disposed of the vehicle. According to him Moyo committed a crime by disposing of a reported stolen motor vehicle. The following came out of the general body of evidence in this case:

 

[7.1]         It is on record that when disposing of the motor vehicle Moyo knew the identity of its owner, but proceeded to hand it back to Mokotedi.

 

[7.2]         He was also aware of Mokotedi's intention to sell it to

someone else.

 

[7.3]         He was aware at the time that the motor vehicle was subject of police investigations.

 

[7.4]         Also, according to Munyai, Moyo had been cautioned by the police to not dispose of the vehicle as it was subject of their investigations.

 

[8]             When asked about the nature of the offence, Munyai explained that Moyo had committed the crime of theft of motor vehicle by embezzlement. He explained that this kind of theft happens when a person who is lawfully in possession of an item, in this case the vehicle, disposes of it with the aim of permanently depriving its owner of ownership. According to him there was no doubt in his mind at the time of the commission of the offence, that the Plaintiff had been in lawful possession of the motor vehicle, that is, prior to its disposal. What constituted the crime, according to Munyai was the disposal of the vehicle which the Plaintiff knew to have been stolen.

 

[9]             Munyai also explained that he was aware of the circumstances under which the Moyo got to be in possession of the motor vehicle. The information was contained in the police docket. Being aware of those circumstances, which I do not deem necessary to repeat as they have already been canvased previously, he did not decide to charge the Plaintiff with an offence of unlawful possession of stolen property but rather focused on the crime surrounding the circumstances under which the motor vehicle was disposed of.

 

[10]        When it was explained to him that Moyo simply gave the car back to the person from whom he had bought it, Mokotedi, Munyai indicated that that is exactly what constituted the offence of theft of the motor vehicle by embezzlement. He contended that Moyo ought not to have given the vehicle back to Mokotedi.

 

[11]        Concerning the allegation of maliciousness, he testified that he did not have any reason to act maliciously against Moyou He did not know him at the time, and had never met him before he took the decision. Other than the contents of the docket that were before him, there were no additional reasons that could have led him to take the decision. He denied that he acted maliciously against Moyo. He was guided purely by the objective facts to take the decision and, in his mind Moyo had to face criminal charges together with Mokotedi. Due to his actions, Rapoo may never get her vehicle back.

 

[12]          The witness was subjected to extensive and probing crossexamination. He did not deny it when he was told that Moyo was the one who had first informed the police about the theft of the motor vehicle, and the circumstances under which he got to be in its possession. Munyai accepted that he was aware of this, but that his decision to prosecute was taken for a different reason. The focus of his decision to prosecute was what happened at a later stage when Moyo willingly and in disregard of police instructions gave back the car to Mokotedi. That is how he disposed of the stolen vehicle.

 

[13]          When it was put to him that the vehicle was given back to Mokotedi, he again admitted it but contended that that is what constituted theft of motor vehicle by embezzlement. He disputed that the decision on Moyo's prosecution was taken without a reasonable and probable cause, stating that theft by embezzlement is something that happens commonly and for which they charge people routinely. He indicated that there was nothing unusual with his decision to prosecute.

 

[14]          It was further suggested to Munyai that there was no instruction given for the motor vehicle to be impounded. He did not want to speculate on this issue. He further explained that it was not necessary for him to have seen the alleged stolen item for him to formulate a decision to prosecute an accused person. He relied solely on the statements in the police docket to make his decision. It was in consideration of the statements and other evidence in the docket that he took the decision to prosecute Mokotedi, and later on Moyo.

 

[15]          Munyai admitted being aware that Moyo was acquitted of theft on the basis that the State had failed to prove his guilt beyond reasonable doubt in terms of the Criminal Procedure Act (the CPA). [1] The Court found that the State had not managed to make a prima facie case which required Moyo an an accused person to testify. In such circumstance the CPA requires that an accused person should be discharged by the Court without being required to testify and possibly incriminate himself. It was because of his acquittal that Moyo contends that his prosecution was malicious and without reasonable and probable cause.

 

[16]          An acquittal alone is not sufficient to prove that the prosecution was malicious or without probable cause. I deal with the full requirements below.

 

LEGAL PRINCIPLES

[17]          The law is clear that in a matter of this nature the Plaintiff bears the onus proving that the prosecution was instituted maliciously against him. This is what the Court said in Minister of Justice for Justice and Constitutional Development v Moleko^[2] (Moleko) where it held inter alia that:

 

“[8] In order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove —

(a)            that the defendants set the law in motion (instigated or instituted the proceedings);

(b)            that the defendants acted without reasonable and probable cause;

(c)             that the defendants acted with 'malice' (or animo injuriandi); and

(d)            that the prosecution has failed. (In this case, of course, Mr Moleko was acquitted at the end of his criminal trial and requirement (d) need detain us no further.)"

 

[18]          The extract above means that the Plaintiff bears the onus to prove these requirements. I say this based on the language employed by the Court, especially its use the conjunction 'and' which is indicative that not one but all the requirements must be proven. The Court did not employ the word 'or' which would have implied that proving any of the four grounds would be sufficient to hold a Defendant liable for damages for malicious prosecution.

 

[19]          There is no controversy in this matter with regard to two of the requirements. The first one is that it was the NDPP which set the law in motion against Moyo. This forms the gist of the evidence adduced by Munyai. The second one is that prosecution against Moyo failed. As indicated he was discharged in terms of s 174 of the CPA. This fact also became common cause between the parties during the proceedings.

 

[20]          It is the existence of the other two requirements that had to be proven by the Plaintiff on a balance of probabilities. I deal with them below.

 

WAS PROSECUTION WITHOUT REASONABLE AND PROBABLE CAUSE?

[21]      Reasonable and probable cause in the context of prosecution has been defined to mean an honest belief on the part of the decision maker, based on reasonable grounds, that the institution of proceedings is justified. This requires an objective assessment of the decision taken and the facts that were available to the decision maker. If the decision was taken with the honest belief, viewed in the context of available evidence, that the facts constituted a criminal offence, then the claim must fail [3]

 

[22]       The Court in Hicks v Faulkner,[4] one of the earliest decisions, defined reasonable and probable cause as an honest belief in the guilt of an accused person, based on full conviction and founded on reasonable grounds that there exists facts or circumstances which, if proven to be true, would lead a prudent and cautious man to a conclusion that the person charged 'was probably guilty of the crime imputed'

 

[23]       That person who is to be assessed is Munyai. His evidence was simple to understand, that he took the decision upon reading the police docket. From the docket it became apparent that Moyo had disposed on the motor vehicle, which was immediately before its disposal lawfully in his [Moyo's] possession. It will be recalled that Moyo admitted to have given the vehicle back to Mokotedi. In his mind, armed with such information, Moyo had committed a criminal offence.

 

[24]      In evaluating this question further one has to consider the nature of the crime that Moyo was charged with. Counsel for the NDPP made reference to the definition of theft as contained in one of the crafts by CR Snyman^[5] which is as follows:

 

"A person commits theft if he unlawfully and intentionally appropriates movable, corporeal property which.

 

(a)          belongs to, and is in possession of, another;

 

(b)          belongs to another but is in the perpetrator's own possession;

 

(c)          belongs to the perpetrator but is in another's possession and such other person has a right to possess it which legally prevails against the perpetrator's own right of possession provided that the intention to appropriate the property includes an intention permanently to deprive the person entitled to the possession of the property, of such property.”

 

[25]       Munyai pointed out that the disposal of the motor vehicle by Moyo to Mokotedi, acting with full knowledge that the latter intended to sell it further, rendered him guilty of the crime of theft of motor vehicle. This position was not shaken during Munyai's cross-examination.

 

[26]       On behalf of the Plaintiff a lot was said about the fact that he did not sell or dispose of the motor vehicle. What he could not deny is that he got it out of his hands. To put it in a stronger term, he got rid of the motor vehicle by giving it to Mokotedi while knowing of the intension to sell it further. With such knowledge, it must have dawned on Moyo that the owner stood to be deprived of the car permanently if the new sale was to be carried out successfully. He reconciled himself with the actions of Mokotedi by returning the car to him.

 

[27]          The Plaintiff also pegged his argument on the untrammeled fact that he had not stolen the motor vehicle and, ostensibly that he was a victim of the crime committed by Mokotedi. Munyai readily accepted this fact, but went further to explain that his decision not to charge Moyo of unlawful possession of a stolen motor vehicle was based on his consideration of how he came to be in its possession. I found the explanation sensible and dispelling the notion that the prosecution decision was not based on reasonable grounds. Munyai appears to have evaluated the facts that were presented to him in the docket before arriving at the conclusion to charge Moyo with theft of motor vehicle by embezzlement.

 

[28]       The Court in Moleko^[6] explained further about this question that:

 

"Not only must the defendant have subjectively had an honest belief in the guilt of the plaintiff, but his belief and conduct must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence. "

 

[29]       In my view, and taking all the facts into consideration, the decision to institute criminal charges against the Plaintiff was not only reasonable but also justified. I do not stop here but proceed to deal with the mala fide questions.

 

WAS PROSECUTION MALICIOUS?

[30]        Malice in this context talks to the mental state of Munyai as the decision maker. As the Court explained in Moleko this entails two things. It said that animus injuriandi is established where intention to injure has been shown to exist, conscious of the wrongfulness of the decision so made. ^[7] Neethling^[8] explained malice in the context of prosecution as follows:

 

"In this regard animus injuriandi (intention) means that the defendant directed his will to prosecuting the plaintiff (and thus infringing his personality), in the awareness that reasonable grounds for the prosecution were (possibly) absent, in other words, that his conduct was (possibly) wrongful (consciousness of wrongfulness). It follows from this that the defendant will go free where reasonable grounds for the prosecution were lacking, but the defendant honestly believed that the plaintiff was guilty. In such a case the second element of dolus, namely of consciousness of wrongfulness, and therefore animus injuriandi, will be lacking. His mistake therefore excludes the existence of animus injuriandi. " (Emphasis added)

 

[31]      Both the factors of intention and awareness that the decision was wrongful must exist. In Moaki v Reckitt & Colman (Africa) & Another[9] it was held that it is for the Plaintiff to allege and prove that the defendant had the necessary intention to cause him injury, either in the form of dolus directus or dolus eventualis.

 

[32]       The Plaintiff's submissions focused on the grounds whether there was a reasonable and probable cause for the NDPP to institute criminal prosecution. There is nothing said about why the decision to prosecute is considered to have been taken maliciously. I have traversed the evidence from both sides and I attempted to avoid undue repetition. Even though it bore no onus of proving that the decision was not taken mala fide, it is the Defendant that actually dealt with this ground. The failure of the Plaintiff to provide fact supporting the notion that the prosecution decision was taken with malice and to fully address it is also fatal to the claim.

 

[33]       Moyo merely alleged that the decision maker, who was not known to him at the time of the decision but who has since been identified to be Munyai, acted with malice when deciding to institute the criminal charges against him. Apart from the fact that Munyai denied the allegation, objective evidence shows the reason why the decision was taken. The decision was predicated upon common cause fact of the disposal of the motor vehicle by Moyo, against an instruction from the police to not do so.

 

COSTS

[34]       Both parties in their written submissions asked for costs to be awarded in their favour. Costs ordinarily follow the course, save where there exist reasons to depart from the general rule. The claim has failed on the bases that I have articulated above. I have not found any reason why costs in this case should not follow the course.

 

ORDER

[35]       I make the following order:

 

1. The Plaintiff's claim is dismissed with costs.

 

MZ MAKOTI

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

APPEARANCES

DATE OF FINAL HEARING:	03 APRIL 2023
DATE OF CLOSING SUBMISSIONS	21 APRIL 2023
DATE OF JUDGMENT	03 July 2023
COUNSEL FOR PLAINTIFF:	MR S LESHILO
	T L SEELETSO ATTORNEYS
	NO. 484 DP KGOTLENG STR
	MONTSHIWA
	MMABATHO
COUNSEL FOR DEFENDANT:	ADV L SEREMANE
	OFFICE OF STATE ATTORNEY
	1 FLOOR, WEST WING
	MEGA CITY COMPLEX
	MMABATHO

---