malicious prosecution. the claim is defended by both ... · his alibi. on monday 26 october 2015 he...
TRANSCRIPT
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REPUBLIC OF SOUTH AFRICA
.. -
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
REPORT ABLE: YES/NO (1) (2) (3)
OF INTEREST TO OTHER JUDGES: YES/NO REVISED: YES/NO
\0,MARCH 2018 .L.~ ........... .
In the matter between:
SUDESH KUMAR VIJAI
and
THE MINISTER OF POLICE
THE NATIONAL DIRECTOR OF PUBLIC
PROSCECUTIONS
JUDGMENT
PHAHLANE. AJ
CASE NO: 41706/2016
PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
Introduction
[1] This is an action for damages for alleged unlawful arrest, unlawful detention and
malicious prosecution. The claim is defended by both defendants. By agreement
between the parties, the trial is confined to the merits, with the question of quantum
standing over for later determination.
[2] In addition to the pleadings, several bundles were handed in court which included
bundle B consisting of Index: Discovery; bundle C-F consisted of Index: contents of
case docket; bundle J consisted of record of Bail proceedings, and many other
bundles which I will refer to in this judgment. For convenience, I will refer to all bundles
as exhibits. The parties provided me with Heads of Arguments in support of their
closing arguments, for which I am indebted.
Summary of Plaintiff's claim
[3] The plaintiff claims damages with in two categories. In the first category plaintiff
allege in his particulars of claim that he was wrongfully and unlawfully arrested and
detained on 23 October 2015 without a warrant by Brigadier Victor, alternatively by
other unknown police members of Midrand South African Police Service acting within
the course and scope of their employment as employees of the First Defendant.
Plaintiff remained so detained at the Krugersdorp police station holding cells until his
second appearance in the Alexander Magistrate's court on the 27 October 2015 when
he was released on bai l.
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[4] The second category relates to damages for malicious prosecution in that
members of the Midrand SAPS, being members of the First Defendant, on the 23rd of
October 2015 wrongfully anct. maliciously set the law in motion by arresting and
charging the plaintiff on a charge of truck hijacking, in circumstances where there was
lack of a reasonable and probable cause.
Issues of common cause or not disputed
[5] That the plaintiff was arrested without a warrant.
[5.1] The following issues forms part of the common cause issues as agreed to
between the parties and is reflected in Exhibit H
(1) On 17 October 2015 Jack Malome Letsoala, the complainant, was the driver of
a truck, when he was allegedly hijacked shortly after 08h00 at or near Le Roux
and Old Pretoria Roads, Midrand.
(2) A docket was registered at Mid rand Police Station under CAS 468/10/2015 on
the same day
(3) Complainant deposed to an affidavit A(1) at 01 hOO on 18 October 2015
(4) On the morning of Friday 23 October 2015, complainant attended at the Client
Services Offices at Midrand Police Station to collect a copy of his affidavit
(5) The complainant pointed out Plaintiff to warrant officer Thoka as being one of
the hijackers, and the driver of the BMW used in the commission of the crime
(6) Plaintiff, a Warrant Officer in the South African Police Services stationed at
Midrand, was arrested later on 23 October 2015 at the Midrand Police Station on
a charge of hijacking a truck
(7) Plaintiff was detained at the Krugersdorp Police Station
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(8) Plaintiff made a warning statement to the Investigating officer, Captain
Mathebula on Saturday, 24 October 2015
(9) Plaintiff appeared in the Regional Court at A lexandra on Monday, 26 October
2015, under Case Number RC 779/15. The matter was remanded to the
following day, 27 October 2015 for a bail application.
(10) On Tuesday 27 October 2015, plaintiff applied for bail. The proceedings were
mechanically recorded . Plaintiff was granted bail of R5 000.00
(11) Plaintiff appeared thereafter on 25 November 2015, 11 December 2015, 29
January 2016, 9 February 2016, and finally on 23 March 2016 when the
charges against him were withdrawn.
(12) The charges were withdrawn on the instructions of the Director of Public
Prosecutions, Gauteng.
Summary of evidence
[6] The plaintiff who was a member of SAPS and working as a crime intelligence
official, was arrested on the 23rd of October 2015 at his workplace while on duty at the
Midrand Police Station. At the time of his arrest, he was involved from the intell igence
side of investigations, of the truck hijacking which occurred on the 17th October 2015.
This investigation included amongst others, the preliminary investigations of identifying
the suspects; gathering the facts of the case; and obtaining video footage. The plaintiff
was arrested for this very same truck hijacking which he was investigating.
[7] He testified that on 23 October 2015 he reported for duty at 05h45. He went to a
briefing session with his colleagues which involved gathering of information on crime.
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He also gave directions on which areas to patrol. He testified that while busy, the head
of visible policing, Lieutenant Colonel Mahlolomela, entered the office and informed
him that someone had pointed him out as a person who had committed the hijacking.
This happened at around 08h00. He said he just laughed it off thinking it was a joke.
Mahlolomela left the office and he continued with the briefing.
[8] Around 12h00 midday Colonel Moodley who is the station commander, entered his
office in the company of three police officers ie. Brigadier Victor; constable Nkala, and
the other police officer whom he cannot remember but can identify him. Moodley
pointed him out to Brigadier Victor saying "this is warrant officer Vijai", and Moodley
asked him to step out of his office. They were at the passage outside his office when
Brigadier Victor informed him that he was under arrest for truck hijacking.
[9] Constable Nkala and the other member placed handcuffs on him and he was
taken back to his office. He then asked one of these arresting officers to remove his
gun from his holster which was on his waist and give to his commander, Captain Hulk.
Nkala and the other member started to search his office. Five cellphones were
recovered from the drawer and the plaintiff alleges two of those were his personal
cellphones, while three belonged or were used for informers. It is an open plan office
which he shares with three other colleagues and they saw this. He had no indication
or intention to run away.
[1 OJ The two officers, together with Victor requested to search his house and he
agreed. He thought they had a warrant of arrest and a search warrant. and he was
escorted to his house in handcuffs. According to him, only his bedroom was searched
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at his house and nothing was found. He found out later that they did not have any
warrant. He further testified that he was detained at the Krugersdorp police station
where he was booked in at 16h00 as it appears on page 22 of Exhibit B.
[ 11] The plaintiff further testified that while on route to Krugersdorp police station , he
informed his arrestors (eg. constable Nkala and the other officer) that he had an alibi
which would confirm his whereabouts of the 1?1h October 2015. To his knowledge, he
submitted, he does not think they did anything to follow up on his alibi.
[12] Page 14 of Exhibit B is an entry to the occurrence book (OB) where w/o
Maluleke made a report as reflected in entry number 1161 that he was given an
instruction by colonel Enslin that the plaintiff should not be allowed to have any
visitors; make and/or receive telephone calls. Plaintiff, gave evidence that he did not
know who Col Enslin is and what was his role regarding the investigation. Over the
weekend , his family and colleagues came to Krugersdorp police station to give him
food but he was not allowed to be seen. He was not given opportunity to speak to his
wife to arrange an attorney.
[13] On Saturday morning the investigating officer Captain Mathebula came to take
his warning statement and charge him. He testified that he also informed Mathebula of
his alibi. On Monday 26 October 2015 he appeared briefly at the Wynberg magistrate
court situated in Alexander and the matter was rolled over to the next day for a formal
bail application. The next day which was a Tuesday, the plaintiff was released on bail
of R5000.00
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[14] Amongst complaints he has against the first defendant, is a complaint which
relates to the fact that he should not have been arrested before his alibi was
investigated. This alibi involves statements obtained from various witnesses, one of
which is his wife; the video footage from the complex where he resides; as well as the
video footage from the mall at Cedars in Midrand where he says he spent most part of
the day on 17 October 2015.
[15) I interpose to state that Exhibit "M" which was handed in by agreement and is
identified as a "Record al on video footage", reflects the whereabouts of the plaintiff on
17 October 2015. The following is mentioned in exhibit "M":
1. 08:54 - Blue Ford Focus exits the plaintiff's place of residence as seen on
CCTV video footage - clip 02
2. 09:17.48 - Blue Ford Focus enters the plaintiff's place of residence also
indicating the driver wearing a blue and white Chelsea football jersey. The
football jersey as worn by the plaintiff, also being depicted on page 27 of
Bundle B as seen on CCTV video footage - clip 03
3. 11: 16 - The blue Ford Focus exits the plaintiff's place of residence as seen on
CCTV video footage - clip 04
4. 18:21 - Blue Ford Focus re-enters the plaintiff's place of residence as seen on
CCTV video footage - return clip.
[16] The plaintiff testified that Mahlolomela told him that the actual person who
pointed him out as one of the perpetrators was the driver of the hijacked truck, but this
person did not confront him. He added that from his knowledge, he believes that he
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was walking at the Client Service Centre when this person identified him as the
alleged hijacker.
[17] Under cross-examination he confirmed that he is very familiar with the police
Standing Orders which regulates how a suspect should be handled and the procedure
to be followed when arresting a suspect, as well as the investigation techniques. The
plaintiff was challenged at great length with regards to his alibi. His wife also testified
on his behalf but I will not refer to her evidence as I deem it not necessary, as it does
not assist the court in any way.
[18] The first defendant denied that the arrest and detention were unlawful. Asserting
that the arrest and detention were justified by the provisions of section 40(1)(b) read
with section 50 of the Criminal Procedure Act 51 of 1977, they admitted that plaintiff
was arrested without a warrant and without following normal legislated procedures.
[19] Testifying on behalf of the first defendant, Brigadier Johannes Jacobus
Hermanus Victor (Victor) stated that he is a Brigadier in the SAPS with 34 years'
experience and he is the head of what is known as the war room and is stationed at
crime intelligence Gauteng. The war room has different components which includes
Detectives, intelligence, and forensic analysts. During his period at the war room as
the provincial head, his duties were to facilitate the different units to attend to serious
crime scenes, and also to facilitate specific investigations, and make sure that the right
people were attending. He did the analysis for them when it came to crime patterns
and crime groupings.
8
(20] He testified that on the 23rd October 2015 he was contacted to go and assist at
Midrand police station with regards to a truck hijacking. When asked whether he went
there on his own or was accompanied by someone, he testified that he asked the
detectives at the war room to meet him at Midrand police station, ie. Captain
Mathebula. Upon his arrival at Midrand police station , he was briefed by colonel
Moodley, who was the Acting Station Commander, and he also had the opportunity to
speak to Major General Molefe who was the cluster commander, about the same
incident. He was thereafter introduced to the victim/complainant in the truck hijacking
case, whom he subsequently had an interview with .
(21] He informed the court that from this interview, the information that he received
was that the complainant had positively and spontaneously identified the plaintiff as
one of the men who had hijacked him and that such identification was made to w/o
Thoka. He also spoke to w/o Thoka who confirmed such. Brigadier Victor informed the
court that it was as a result of this information that he took a decision to place the
plaintiff under arrest.
(22] According to him, during the period of October 2015 there were lots of truck
hijackings in the Midrand area. They suspected that it was an easy zone for criminals
in the sense of getaways routes, but that what they experienced is that the police
colluded with criminals, whether it be bogus police in SAPS uniform or cloned marked
police cars or real police vehicles. He explained that having had serious crimes for
that particular year and some members of the police being involved, the decision was
to secure the investigation by having the plaintiff arrested; constrict his movements
and his communication and then solve the case.
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[23] Victor testified that it was not the responsibility of the war room to arrest, but
however he only did that because he was requested by both the cluster commander
and the station commander of the Midrand police station to assist and to facilitate the
process. The reason according to him was simple, ie. those to whom the matter was
reported to did not do their job, they did not act.
[24] Explaining his decision to arrest the plaintiff, Victor said he took a decision that
w/o Vijai needed to be arrested, within the prescripts of s40 of the CPA ie. without a
warrant of arrest, because it was a schedule 1 offence. A further reason for arresting
at that moment visa vis first investigating before arrest, he says, was to secure
possible evidence that they might find in further investigation will be secured.
[25] Emphasising on the importance of arresting the plaintiff, he expressed his
excitement in the following words:
"Such information would be secured in the sense that up to that moment, there was no
suspects in the alleged truck hijacking case. Suddenly you've got one that was
identified spontaneously, and you need to follow up and see whether the suspect can
lead us to any of the evidence and a/so help to identify the other associates in this
crime".
[26] Victor confirmed that he could have investigated the matter first and then effect
arrest later, which was an option and a preferred option , but having some serious
crime and police involved as they had that year, he could not. In effect, he exposes
that the reason why plaintiff was arrested was to secure as early as possible, any
available evidence and that there was no one else arrested. The plaintiff was going to
10
be the first suspect to arrest, he was suddenly exposed and ought not be lost for the
reason that he would help in further investigation [my emphasis].
[27] When asked if he had any concern about what might have happened if he did not
effect an immediate arrest, he replied that "the suspect might have destroyed the
evidence, gotten rid of evidence and there might have been things at his home or with
his co-associates in the crime. He could have told them that the police are on to them
and get rid of evidence and even get rid of evidence at the police station. For example,
any statements or evidence in the docket that was obtained".
[28] According to him the decision to arrest at that moment, was not subject of any
debate with anyone. He could take the decision on his own, however he discussed it
with captain Mathebula although he could not remember if he was there at the
moment of arrest. He somersaulted and said he took the decision on his own.
[29] Responding to the suggestion that there should have been an identity parade
held before arrest, Victor said it was impossible to have an ID parade after the suspect
(in this case w/o Vijai) had already been spontaneously identified in the presence of
other police officials. He added that, that was so because having an ID parade with
the same suspect and the same complainant, that would never stand because the
complainant had already determined that "this is one of the 3 Indian males" he saw,
and that this is the one who drove the BMW. As such, they could not have an ID
parade when the person has already been identified.
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[30] I interpose once again to state that under cross examination, it was put to the
plaintiff that: ''you will note that there's no description of the hijackers in the
complainant's statement except by race", to which the plaintiff responded, "that is
correct".
[31] What Victor alleges is that the spontaneous identification of the plaintiff was legal
and as good enough as the formal identification parade. I disagree. Identifying a
suspect is done within conscripted rules. There is indeed a reason for that. The major
one being that evidence of identity has to be treated with caution.
[32] Under cross examination, brigadier Victor admitted that he proceeded to arrest
the plaintiff without having the benefit of seeing the statement of the complainant in
the docket first. The following is quoted from his evidence under cross examination:
Question: "before going to a suspect, isn't it prudent that we must first establish
whether a bona fide crime was reported, otherwise we can't have a suspect
Answer: that is correct
Question: you never had benefit to see the A1 statement before the arrest
Answer: No. I didn't see the A 1 statement, but I was informed about the incident even
on the day it happened
Question: as an experienced policeman, let us go through the A 1 statement. I put it to
you that until the time of the arrest around midday, not 15h00 on the 23rd, it was only
one statement in the docket. The complainant says he was hijacked at 8am, he was
driven around by all these perpetrators until 19h00 so my client had to be in his
presence
Answer: Yes, it comes down to that. The statement is a mini A 1. It is rubbish. "
12
[33] Victor confirmed that the plaintiff had informed him about his alibi. To the
question that when he received information about the alibi, would he have taken a
step and what would he have done? Victor responded by saying: "unfortunately
everybody has the so-called alibi the moment he is arrested. Everybody is innocent
until proven guilty. The arrest was not made on the basis of whether the plaintiff has
got an alibi or not. It was based on the fact it was a serious offence. The issue of alibi
and searching his house to look for whatever, all the processing would have been
done by the investigating team"
[34] Victor was taken to task at great length with regards to the Standing Orders,
which I will deal with later in the judgment.
[35] The next witness for the first defendant was Mkhajane Thomas Mathebula
(Mathebula). He is now a retired officer who testified that at the time of the being
allocated this matter to be the investigating officer, he was a captain at the province,
with 34yrs in the services of SAPS and stationed at Brixton, Johannesburg. He
testified that he was called in by the Midrand pol ice station on 23 October 2015 to
assist in the case of a truck hijacking that occurred on 17 October 2015. He says at
Midrand, he met with Brigadier Victor, constrable Nkala and Radzelane. He was also
introduced to the complainant.
[36] He further testified that the station commander briefed them about the hijacking
that occurred the previous days and the complainant was at the police station and has
pointed out one of the police official that he was one of the hijackers. He said they
were given an office where they talked to the complainant. He testified that after the
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interview, he took the statement of the complainant and while busy doing that, the
three (ie. Brigadier Victor, constrable Nkala and Radzelane) left the office. He cannot
say what they were doing but they said they were going to see the police who was
involved in the hijacking. He was alone when taking the statement. Besides the
complainant, he also spoke to the police official who said he saw the complainant
identifying the police official involved in the hijacking. He did not take his statement,
but the officer wrote the statement himself. He also asked the personnel who was in
charge of the video footage in the office so that he can give him the copy of the
footage.
[37] According to him, he wanted to .check the times where the complainant got inside
the police station and the time the suspect (the plaintiff) returned back to the police
station, as well as the time the complainant identified the plaintiff. He did not see
anything on the footage. On that day, he booked out the exhibit that was handed in the
SAP 13 ie. phone and copy of the video footage to his office in Brixton. Still on this day
the 23rd October, he met the person whom he asked to download the phones.
[38] Mathebula testified that the next day on 24 October, he went to Krugersdorp
police station where the suspect (ie. plaintiff) was detained. He spoke to the suspect
and the suspect wrote his warning statement. He thereafter he took his fingerprints.
He confi rmed that the plaintiff informed him about his alibi. When asked what he did
with this information (referring to the alibi), captain Mathebula said he did not do
anything on the day he was given this information. He had a lot of admin work. The
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next day on the 25th he did not do anything either, because on Friday he knocked off
very late. There were other police duties that he had to attend to.
[39] Relating to what he did on Monday the 261h, he said the following :
• On this day, I arrived in court and spoke to the senior prosecutor. I gave him
the docket, he read it and then he agreed with me that there is a case and
then placed it on the roll
• After this day, I cannot recall what happened but the plaintiff's lawyer gave
me specific statements where he said it is the alibis of the suspect.
• Looking at those statements, I read them one by one, and they appeared to
have been written by one person even though the handwriting was different.
• I got the phones of all the persons who made those statements and I called
those people
• According to me those statements were taken at the police station
• I wanted to confirm if those people went to the police station or not
• I found one who said he did not go to the police station
• I then proceeded to the police station to check with all those police officials
who have commissioned those statements
• One of them said in all those statement, he saw the people but in one of the
statements, he did not see the person. He said he was given the statement
by the captain who at that time he was working together with at this very
same police station with the plaintiff. He explained that the captain said he
was not going to sign the statement because he was an Indian himself.
15
[40) Under cross-examination, Mathebula admitted that he did not consider the
plaintiffs warning statement and did not bother to follow up on the evidence because
the plaintiff was already pointed out. According to him, having being pointed out was
good enough reason to charge the plaintiff. Asked whether he would agree that there
was proper evidence under oath that he rejected on face value, he responded by
saying "that was not proper evidence, i did not even want to waste my time".
[41] Like Victor, Mathebula was also confronted with the alibi of the plaintiff which
became the focal point of his complaint against the first defendant. Mathebula
confirmed under cross-examination that he never applied his mind to the alibi
statements. He confirmed that he did not put the effort to watch the video footage
which would have supported the alibi of the plaintiff or explained the whereabouts of
the plaintiff on 17 October. He conceded that he knew the plaintiff was involved on the
intelligence side of the truck hijacking until at the time that he was arrested. Mathebula
was also taken to task regarding the Standing Orders.
[42) In this judgement I have desisted from entertaining what ought to have been
divulged in the criminal trial court if it was held . I took notice that the defendants in
most parts of their arguments, sought to authenticate or rather legalise the arrest and
detention of the plaintiff through inviting this court to anticipate what would have
transpired in the criminal court if the matter was not withdrawn. I will not hypothecate
the plaintiff's criminal trial which was aborted by the very same defendants on the
basis that it was not prosecutable, by issuing a certificate no/le prosequi. If I were to
agree with this approach I would be emulating a criminal court with in a wrong
jurisdiction.
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Unlawful arrest and detention
[43] Turning to the main issues to be decided by this court, I will first address the first
leg of the plaintiff's claim which is based on unlawful arrest and detention. The
question to be decided by this court is whether there was a reasonable suspicion
and/or probable cause to arrest the plaintiff and to what extent did the available
evidence create a reasonable suspicion for the first defendant to arrest the plaintiff.
[44] The first defendant pleaded that the arrest and detention was not unlawful and
wrongful , but was in fact lawful and justified in terms of section 40(1)(b) of the Criminal
Procedure Act 51 of 1977 ('the Act"). This section provides for an arrest by a peace
officer without a warrant, of any person whom he reasonably suspects of having
committed an offence referred to in Schedule 1 of the Act.
As a rule, the onus rests on the first defendant to prove on a balance of probabilities
that:
1. The arrest of the plaintiff was lawful
2. There was a reasonable suspicion that the plaintiff was involved in a schedule 1
offence
3. The suspicion rested on reasonable grounds.
[45] The right to freedom and security is enshrined in section 12(1) of the
Constitution 1 and any arrest and detention of a person amounts to prima facie
infringement of these rights. When challenged, the police bear onus of proving that the
arrest and detention are not wrongful2.
1 Act 1 08 of 1996
2 Zealand v Minister of Justice and Constitutional Development and Another 2008(2) SACR 1 (CC) at para 24: Minister of
Safety and Security v Slabbert [20 10)2 All SA 474 (SCA) at para 20
17
[46] When a statute provides that a public power may be invoked and deprive a
person of his right of liberty, our law demands ·that those who exercise public power
subscribe to a culture of justification3
[47] In Duncan v Minister of Law and Order4 it was held that there are four
jurisdictional pre-requisites to be established before an arrest is determined to be in
accordance with the section. These are the following:
(i) The arrestor must be a peace officer;
(ii) The arrestor must entertain a suspicion;
(iii) The suspicion must be that the suspect (the arrestee) committed an offence
referred to in Schedule 1; and
(iv) The suspicion must rest on reasonable grounds. The introduction of a fifth
jurisdictional element has been rejected by the Supreme Court of Appeal5.
[48] The test whether the police officer has a reasonable suspicion is an objective
one6. In the current matter, applying the objective approach, the question is whether
Victor had reasonable grounds for his suspicion. The test is that of a reasonable man
with the knowledge and experience of a peace officer like Victor, based on facts.
[49] It has been submitted on behalf of the plaintiff that the first and third pre
requisites as outline in the case of Duncan supra are not disputed and that the issue
3 p . rmsloo v. Van der Linde & Another 1997(3) SA 1012 (CC) at paragraph 25 quoted by Tuchten Jin an unreported Full
Bench Judgement of this Division in the Minister of Police & Another v. Morgan Gombakomba & Another Case No. A945/14
dated 5 April 2016 at 21
4 1986(2) SA 805(A) at 8 18 9-1-1
5 Minister of Safety and Security v Sekhoto and Another (20 ! 1)2 All SA 157 (SCA) at para 22
6 Woji Minister of Police [2015]1 All SA 68 (SCA) at para 8
18
which must be decided by this court is the aspect relating to whether there was
reasonable grounds to arrest the plaintiff, put differently, whether Brigadier Victor as
the arresting officer had or acted on reasonable suspicion, and also whether the
subsequent detention of the plaintiff from 23 to 27 October 2015 was justified.
[50] Brigadier Victor testified and admitted that he was the arresting officer. He further
admitted that he was called in to rectify a situation at the Midrand police station
wherein nothing was done after the plaintiff was pointed out by the complainant in the
charge office as being the one who robbed him of his truck. He displayed his
frustrations by saying, 'the people at the Midrand police station did not do what they
were supposed to do and he therefore had to interfere'.
[51] He testified that when he arrived at Midrand police station, there was no
statement taken from the complainant. He also confirmed under cross-examination
that he never had the benefit of seeing the A 1 statement before the arrest of the
plaintiff. He later changed his evidence and said after his arrival, he asked Captain
Mathebula to take statement from the victim and the policeman whom identification
was made to, before they effected the arrest. He thereafter apologised and said he
was under the impression that he first requested the statements to be taken before the
arrest". When the A 1 statement was read out to him, he replied by saying "the
statement is a mini A 1. It is rubbish".
[52] He insisted that the arrest of the plaintiff was based on spontaneous
identification. Explaining his actions, he said - and I quote: "Arriving at the scene,
being briefed you realise it is a schedule 1 offence, you realise the sincerity of it, you
19
realise the lack of action from the police since 8am. Eventually whoever I spoke to I
took a decision to arrest. Now, you need to do further investigation. you need to check
out his alibi".
[53] It was very risky for Victor to simply rely on spontaneous identification in the
midst of mandatory precautions regarding positive identification of a suspect. He
should have taken steps to verify the essentials of the offence before rushing to arrest.
He should have looked for evidence to corroborate the information he received before
arresting , or he should have at least interviewed the plaintiff to allow his suspicion to
dissipate.
[54] In Mabona & Another v Minister of Law and Order and Others7 JONES J said
the following:
"the reasonable man will analyse and assess the quality of the information at his
disposal critically, and he will not accept it lightly or without checking it where it can be
checked. It is only after examination of this kind that he will allow himself to entertain a
suspicion which will justify an arrest".
[55] In Gellman v Minister of Safety and Securit}! the approach of the court was
that:
"while considering whether there are reasonable grounds to suspect the person to be
arrested has committed an offence in Schedule 1, a policeman should analyse the
evidence at his disposal critically. More often than not it would not suffice to form the
7 I 988 (2) SA 654 (SE) at 658e-h
8 2008 (I) SACR 446 (W) at 97.2-3
20
required reasonable suspicion on the basis of a witness' statement alone. It is
advisable to find evidence that corroborates such a statement".
[56] Victor testified that after he had an interview with the complainant and w/o Thoka,
to whom the pointing out was made, he went and arrested the plaintiff. It was
submitted on behalf of the first defendant that this formed the basis of the reasonable
suspicion required in terms of section 40(1 )(b) of the Act and that the arrest was in line
with the Standing Order (G) 341 para 2(2) which was submitted as Exhibit L2. The
paragraph reads as follows:
2. Any reference in this order to "reasonable suspicion/grounds" must be interpreted to
mean that a person will have "reasonable suspicion/grounds" to believe or suspect
something or that certain action is necessary if:
(a) He or she really 'believes ' or 'suspects' it;
(b) His or her belief or suspicion is based on certain facts from which he or she has drawn
an inference or conclusion; and
(c) Any reasonable person would, in view of those facts, also have drawn the same
conclusion.
[57] I am of the view that Victor did not apply his mind properly before effecting arrest.
He also did not harbour a reasonable suspicion which could confirm that the plaintiff
was actually involved in the commission of the offence. It suffices to point that the
Victor's sole reliance on the spontaneous identification of plaintiff as a perpetrator is
on top of being against the required principle for identity of suspects -marred with
risks. He did not take the statement of the complainant himself. He also did not take
the opportunity of going through both A 1 and A2 statements of the complainant. He
21
also did not interview the plaintiff before arresting him. Arresting a person without
firstly verifying the facts is risky.
[58) It was therefore not sufficient for Victor to form the reasonable suspicion on the
basis of the complainant's statement alone as stated in the case of Gellman supra
and it would have been advisable for him to find evidence that corroborates such a
statement. Confirmation by w/o Thoka that the complainant had identified the plaintiff,
cannot be equated to a reasonable suspicion that the plaintiff was involved in a
schedule 1 offence without even verifying those facts. As explained earlier, in order to
ascertain whether a suspicion that a schedule 1 offence has been committed is
reasonable, there must obviously be an investigation into the essentials relevant to
that particular offence.
See also: S v Reabow9
[59) Reasonable suspicion/grounds based on "facts", as contemplated in paragraph 2
(2)(b) of Standing Order (G) 341 cannot stand alone. In my view, those facts needed
to be investigated, and Victor did not do that.
[60) Plaintiff testified that he was arrested in full view of his colleagues and he was
handcuffed. According to Victor, this had to be done in order to constrict his
movements. As a result, Victor was challenged with regards to the rules relating to the
use of restraining measures as stipulated in Standing Order 350 which was handed in
as Exhibit L 1.
9 2007 (2) SACR 292 (E)
22
[61] It was put to him that colonel Moodley as head of the Mid rand police station was
present at the station at the time of the plaintiff's arrest, and it was therefore not
necessary to put plaintiff in handcuffs as he was already in the custody of the
community service centre commander because Moodley falls under that description
as outlined in paragraph 3(1)(a) thereof. Victor responded by saying that it was not
worth taking the risk because he had to take him to the CSC to charge him and it was
not safe not to handcuff him. He continued saying the whole issue was about a
possible escape and if plaintiff could escape under his watch, there would be
disciplinary measures.
Paragraph 3 (1 )(a) read as follows:
Circumstances in which restraining measures may be used.
(1) Use ofrestraining measures when effecting an arrest
(a) The general rule is that every person arrested for an offence must be placed in
restraining measures until he or she is handed over to the community service centre
commander or until he or she is placed in a police cell.
[62] To the question that there was undisputed evidence that plaintiff was informed at
8am about this pointing out and he did not abscond and was not a flight risk, given the
fact that it was never put to him that he was a fl ight risk, Victor responded by saying
that he disagrees. It was put to him that the standing order 350 uses the words "may",
meaning that he should have used his discretion whether to handcuff plaintiff or not,
more particularly because he handcuffed an on-duty policeman in front of his
colleagues where it was not necessary in terms of standing order 350, a statement
which he said he did not agree with. When pressed further he somersaulted and said
it never came to his mind that the plaintiff was going to abscond, adding that he was
23
arrested because there was a need for further investigation and to prevent any
damage to destroying evidence and interfering with witnesses.
[63] The fact that Victor was not sure himself why plaintiff had to be handcuffed, is an
indication that he wanted to frustrate; embarrass and humiliate the plaintiff in front of
his colleagues. In my view, it was not necessary to restrain plaintiff where there was
no indication of possible escape, given the fact that Victor knew that the whole station
was aware of the circumstances surrounding the identification of the plaintiff and he
never tried to escape or behave in a manner that was suspicious. It is on record that
plaintiff was not charged by Victor but by Mathebula the next morning at Krugersdorp
police station. So, it cannot be true that plaintiff had to be handcuffed in order to be
taken to the CSC to be charged and detained as Victor testified. I agree with the
submission that colonel Moodley as the head of the Midrand police station fits the
profile of a community seNice centre commander and it was therefore not necessary
for Victor to handcuff the plaintiff, more particularly because there was no indication or
report of anything sinister fitting a suspicion of possible escape.
[64] In my view, Victor's actions fall short of the exercise of a discretion based on
reasonable and objective grounds. This in my view, is an action which was aimed at
injuring the dignity and reputation of the plaintiff. I find that Victor not only did he have
the intention to injure the dignity and reputation of the plaintiff but was conscious that
his actions were wrongful.
[65] Turning to the identification of the plaintiff, I am of the view that reliability of the
identification of the plaintiff by the complainant was never tested . In my view, the first
24
defendant can therefore not raise identification only, as being a prima facie or
reasonable suspicion to arrest. It was put to the plaintiff that his identification was
based on the fact that he is Indian. I am of the view that this does not constitute a
proper identification on which a reasonable person can rely on. It is trite that
identification of an accused person should not only be satisfactory but it should also
be honest and reliable. Such identification should be treated with caution .
[66] In the case of S v Mehlape10 it was cautioned that:
"In a case involving the identification of a particular person in relation to a certain
happening, a court should be satisfied not only that the identifying witness is honest,
but also that his evidence is reliable in the sense that he had a proper opportunity in
the circumstances - to carry out such observation as would be reasonably required to
ensure a correct identification. The nature of the opportunity of observation which may
be required to confer on an identification in any particular case the stamp of reliability,
depends upon a great variety of factors or combination of factors which may have to
be investigated in order to satisfy a court in any particular case that an identification is
reliable and trustworthy as distinct from being merely bona fide and honest".
And
"Generally, the evidence of identification based on a person's recollections of a
person's appearance is a dangerously unreliable evidence unless approached with
due caution. "
10 1963 (2) SA 29 (A) 1963 (2) SA 29 (A)
25
See also S v Mthetwa11 where the following was said :
"Because of the fallibility of human observation, evidence of identification is
approached by the cowts with some caution. It is not enough for the identifying
witness to be honest: the reliability of his observation must a/so be tested .... . ...... "
[67] It was put to Victor that both A 1 and A2 statements give a different or conflicting
version of the events of the day the complainant was hijacked, and as such if he
(Victor) could have taken the time to read the statements, clarified and accessed the
quality of the information at his disposal, he would have been in a position to allow his
suspicion to dissipate. This is exactly what was required of him at stated in the case of
Mabona supra.
[68] In Ramakulukusha v Commander, Venda National Force12 ; Nkambule v
Minister of Law and Order13 and Commentary to the Criminal Procure Act,
Service 58, 2017 5-14C the following is stated:
"Conflicting statements by a complainant and uncertainty as to the chronology of
events can give rise to the suspicion that a schedule 1 offence had been committed.
This places an obligation on an investigating officer first to read the complainant's
police statement so as to clarify the position. If this procedure is not followed, any
subsequent suspicion cannot be perceived to be reasonable".
11 1972 (3) SA 766 (A) at 768
12 1989 (2) SA 813 (V) 836G-83 78
13 1993 ( I) SACR 434 (T) 437i-428e
26
I am therefore of the opinion that the identification of the plaintiff was not satisfactory.
[69] I want to take this opportunity to point out that counsels delved too much into the
issue of the alibi. However, the important issue to be decided by this court is whether
or not the alibi was raised at the first opportunity and whether the state was denied the
opportunity to investigate the alibi.
[70] The plaintiff testified that upon his arrest, he informed his arrestors about his alibi.
This was also repeated on a Saturday when the investigating officer went to take a
warning statement. Nothing was done about this until on a Monday when the plaintiffs
attorney handed over the alibi statements to 10.
[71] I have indicated earlier that both Victor and Mathebula confirmed having been
told about the alibi on the very first moment when they came into contact with the
plaintiff. In my view, Mathebula had the duty to investigate the alibi and he did not. In
his evidence, he testified that he knocked off late on a Friday and even on a Saturday,
and therefore did not have time to investigate the alibi. At the same time, he tells the
court that, he decided not to investigate the alibi because the plaintiff is untrustworthy.
[72] I am of the view that by doing this, he denied the plaintiff the benefit of having a
chance of being released on the first opportunity before being charged. He had a duty
to investigate the alibi and he fa iled.
27
[73] It became apparent during cross-examination that Mathebula thought the plaintiff
was seen by people at different places at the same time, while he (the plaintiff) said he
was at Cedar's Sports Betting.
Cedar's Sports Betting is also known as Cedar's Pub & Grill; Cedar's Bar; or the Tote.
Mathebula's confusion was displayed when he explained under cross-examination
that - and I quote: "according to my understanding, the places are different. It is not
possible that a person can stay in the bar for 6 hours". Had Mathebula done what was
required of him (ie. investigate the al ibi) he would not have been confused and
dismissed to investigate but would have been in a position to apply his mind to the
facts and taken a proper decision. His fa ilure to act accordingly, which led to him
charging the plaintiff and subjecting him to further detention, renders this detention
unlawful. I cannot reiterate the importance of the Standing Orders, safe to say that the
directive in the Standing Orders says it is a must to follow procedure, hence the
decision in Lapane supraa.
[74] The important factor is not about whether the alibi witnesses stated different
times in their alibi affidavits as Mathebula puts it (ie. that in his opinion, it was not
possible for different people to say that they have seen the plaintiff at Cedar's Pub &
Grill between 11 hOO and 18h00, all at the same time) and it was also not about
whether one of those witnesses was not present when his affidavit was
commissioned .
[75] Counsel for the defendant put to the plaintiff that since one of the alibi
statements, the deponent confirmed not having been at the police station when his
statement was taken , that constituted an interference with the investigation. There is
28
no evidence before court that plaintiff had communicated with the deponent. It is on
record that the plaintiff was in custody when the alibi statements were taken from all
those people and plaintiff was also not in contact with his family. There are six more
alibi affidavits which confirm the presence of the plaintiff at Cedar's Bar between
11 h30 and 18h00. Mathebula dismissed all these statements and refused to
investigate by at least talking to the other deponents, thus failing to use his discretion
properly and objectively. This he displayed by saying to this court - he wasn't going to
waste his time investigating. .
[76] What was required of Mathebula was to investigate the alibi and if that was not
done, the plaintiff has to be given the benefit of doubt. This, I say because the plaintiff
had no duty to proof his alibi. It is trite that if there is a reasonable possibility that the
accused's alibi could be true, and the state has failed to discharge its burden of proof,
then the accused must be given the benefit of the doubt. This court takes into account
the fact that the plaintiff raised his alibi at the first opportunity. It suffices to say that the
state was given the opportunity to investigate the alibi and it did not.
See in th is regard : S v Malefo en Andere14; S v Mhlongo15 and Principles of
Evidence16
14 1998 ( I ) SACR 127 (W)
15 1991 (2) SACR 207 (A)
16 . SP J Schw1kkard at al. Fourth Edition (2015) @page 592
29
[77] It was put to the plaintiff that by saying that his alibi should have been
investigated first before arresting him, means that the plaintiff wanted special
treatment simply because of who he was at the time. In my view, this is further from
the truth. The plaintiff simply wanted both Victor and Mathebula to follow proper
procedure. The procedure which this court also expected them to follow.
[78] Police officers who purport to act in terms of s 40 (1 )(b) should investigate
exculpatory explanations offered by a suspect before they can form a reasonable
suspicion for the purposes of a lawful arrest.
See in this regard: Louw and Another v Minister of Safety and Security and Others17
[79] The court in Lapane18 held that:
"Where a suspect offers a plausible alibi that could easily be checked there and then,
the arresting officer's failure to do so could be a strong indication that his suspicion
was not reasonable".
[80] Mr Jimmy Shongwe who testified on behalf of the second defendant, is the
Regional court prosecutor at Alexander magistrate court. He testified that upon
reading the docket, he saw the alibi which the plaintiff raised in his warning statement
but did not see the alibi affidavits. According to him, what was contained in the docket
at that stage was the statement of the complainant; the statement of the arresting
officer; the identification statement wherein the complainant identified the plaintiff and
17 2006 (2) SACR I 78 (T)
18 2015 (2) SACR 138 (T) at 23
30
the warning statement. The procedure according to him is that when alibis are raised,
a bail application must be done and the matter referred to the 10 to investigate the
alibi. This would require a seven-day remand to allow him to do that. However, it only
takes a day to investigate the alibi.
[81] In my view, if Victor could have checked or verified the alibi of the plaintiff on a
Friday before arrest, there wouldn't have been a need for a detention on that very
Friday. Same applies to Mathebula. If he could have investigated the alibi from the
onset when it was disclosed to him verbally and in the warning statement on Saturday
morning, there wouldn 't have been a need to charge the plaintiff. I say this because he
had a duty to investigate the alibi before charging the plaintiff. In support of this is
paragraph 4(2)(a) of Standing G341 which specifically says, it is only proper for a
member to arrest a person for purposes of conducting an investigation, and depending
on the outcome of such investigation, then comes the decision to either charge or
release the person.
(82] This position was also supported by another witness for the second defendant,
Mr Percy Stanley Ramushu. He is the Control Prosecutor at Alexander magistrate's
court. With specific question posed to him relating to the alibi of the plaintiff, he
confirmed that the police have the duty to investigate a case up until they feel they
have a prima facie case, and thereafter they can charge. He further testified that it was
also the duty of the state to investigate the absence of an alibi that was disclosed to
them. He confirmed under cross-examination that if there were five or six alibi
witnesses and a video as in the case of the plaintiff to confirm that he was not present
31
during the robbery/hijacking, then it was the duty of the policemen to investigate this
alibi promptly.
[83] Exhibit M before this court, is a clear indication that the plaintiff could not have
been in the presence of the complainant at the time he says he was hijacked. It shows
the ins and outs of the plaintiff at the complex where he resides. Page 26 of Exhibit B
is a photo depicting the motor vehicle of the plaintiff at the mall while the plaintiff can
be seen walking at the mall as depicted on a photo on page 27 of Exhibit B going to
buy a newspaper at checkers as testified to. I am therefore of the view that if Victor
could have investigated the plaintiff's alibi, he would have allowed his suspicion to
dissipate. As such this court finds that his failure to check the plaintiff's alibi when it
was divulged or made known to him, is an indication that his suspicion to arrest was
not reasonable, as stated in the case of Lapane supra
[84] I have earlier indicated that Mathebula stated that he was given the alibi
statements or affidavits on Monday by the plaintiff's attorney. It was put to the plaintiff
that he had declined to request an attorney to assist him when he was interviewed by
Mathebula on Saturday morning and he can therefore not put the blame of his
detention on the defendants. I disagree with this point.
(85] The plaintiff testified that his family came to visit him on a Saturday and he was
denied opportunity of seeing his wife. A fact which was not disputed. This fact is
confirmed by an entry made (ie. entry number 1161 of the Occurrence Book) as
reflected in Page 14 of Exhibit B, where a report was made by w/o Maluleka that he
was instructed by Col Enslin that there should be no visits or telephone calls for the
32
plaintiff. Entry 1161 reads as follows: "Reporl: by w/o Maluleka to all relief
commanders and cell guard commanders: that there is a suspect by the name of
Sudesh Vijai cell 281/10/2015 CAS 4568/10/2015 involved in truck hijacking as he is
an ex policeman wlo, that there is no visit for him, no telephone calls made by him, as
I received instructions from col Ens/in. All cell members must see to it that .. .. ... .. .. . "
Nothing comes after this incomplete sentence.
[86] This restriction in my view, exacerbated the plaintiff's chances of instructing an
attorney to assist him. Though not submitted , in my view, this encroached on the
plaintiffs right to have an attorney as contemplated by s35(2)(b) of the constitution.
[87] The allegation by both Victor and Mathebi.Jla that the plaintiff was arrested so as
to prevent him from tampering with evidence and witnesses because he has people
working with him, has no basis. I say this because if that were the case, the plaintiff
being well placed as it was put to him, would have acted in a manner that would show
that he has started tampering with evidence or gotten rid of the evidence as suggested
by the defendant, at the very first moment when he was informed by Leut Col
Mahlolomela that he has been identified as the hijacker of a truck. It is on record that
plaintiff was arrested 4 hours after being told that he was a suspect. He never
attempted to evade or showed any signs that he will run away and the cell phones
were secured simultaneously with arresting the plaintiff. On the other hand, the docket
was still at Midrand police station waiting to be allocated an 10 and no evidence has
been placed before court to suggest that plaintiff was tampering with the docket and/or
witnesses.
33
[88] It is important to note that plaintiff was involved, on the intelligence side of
investigations, with the investigation of this very same truck hijacking which he was
accused of. It is on record that the plaintiff had gatherers who worked with him,
gathering information about this specific truck which included obtaining video footage
amongst other things. Having told Mathebula that he had sent his gatherers to view
video footage and compile an intelligence report, which report was supposed to form
part of the documents to be discovered in terms of Rule 35 (3) and has still not being
discovered, cannot be equated to an interference of a criminal investigation.
[89] I interpose to state that the plaintiff testified that before his arrest, a crime
intelligence report regarding this very truck hijacking was already compiled and it was
put into the inquiry file which is placed at crime intelligence offices at Johannesburg
central. He also testified that on the day of his arrest, he referred to this intelligence
report as it would reveal that according to the gatherers, the truck was not seen on the
video footage of the garage where the complainant alleged to have been on the day
he was hijacked. This is part of the alibi which the plaintiff wanted to establish when
informing Mathebula about the report. Had Mathebula investigated the al ibi, he would
not have detained the plaintiff further from the Saturday when he took his warning
statement, until his release on Tuesday when he was granted bail.
[90] No evidence has been placed before court to show that the suspicion by Victor
and Mathebula that the plaintiff was going to interfere or tamper with evidence, was
valid and had substance. It was put to both Victor and Mathebula that the fact that the
plaintiff after being released on bail , returned to work and held the same position
where he had access to sensitive information with regard to hijackings, clearly
34
disputes their suspicion that there was a possibility of interference with the
investigation.
[91] Paragraph 4 (2)(a) of Exhibit L2 which I referred to earlier, (ie. Standing Order
(G) 431 relates to the object of an arrest. It is couched in the following manner:
2. Exception to the general rule
There are circumstances where the law permits a member to arrest a person although the
purpose with the arrest is not solely to take the person to court. These circumstances are
outlined below and constitute exceptions to the general rule that the object of an arrest must be
to secure the attendance of an accused at his or her trial. These exceptions must be studied
carefully and members must take special note of the requirements that must be complied with
before an arrest in those circumstances will be regarded as lawful.
(a) Arrest for the purpose of further investigation
If a member has a reasonable suspicion that a person has committed a first schedule
offence but realises that further investigations will be necessary before it will be
possible to determine whether the suspect should be charged, such member may arrest
the suspect if the detention oft he suspect is necessary to complete such investigation. It
is thus proper for a member to arrest such a person with the purpose of conducting
further investigation and, depending on the outcome of such further investigation. to
charge or release the person. A member may only arrest a person for this purpose if
such member has reasonable grounds to believe that the investigation will be hampered
should the person not be arrested. This will normally be the case if such member has
reasonable grounds to believe that:
(i) The person will either abscond, do away with an article required as an exhibit,
interfere with a witness or otherwise endeavour to evade or defeat the ends of
justice;
(ii)
(iii)
35
[92] It is therefore clear from the wording of this paragraph that before the plaintiff
could be arrested for further investigation as testified to by Victor, there was a duty on
him and Mathebula to at least investigate the circumstances of the case; and apply
their minds to it. Clearly this procedure was not followed. The requirement is
peremptory. Victor and Mathebula were therefore in violation of the very rule that
required them to follow procedure as outlined in paragraph 4(2)(a) of Standing Order
G341.
[93] Victor makes an allegation of suspicion of a possibility of interference with the
investigation and does not bring proof. Mathebula makes the same allegation and fails
to investigate before charging the plaintiff. Both their actions fall short of the required
reasonable suspicion that (1) the plaintiff has indeed committed an offence and (2)
that he will interfere or tamper with evidence or investigation.
[94] In determining whether or not to effect an arrest, the arresting officer should
carefully consider the standing orders. Where he exercises a discretion in violation of
standing orders, that may in itself be an indication that the discretion was not properly
exercised and that the warrantless arrest was unlawful. Under the circumstances, I
find that the arrest by Victor was unlawful.
[95] Having regard to the above, I find that the first defendant failed to prove that (1)
the arrest and detention of the plaintiff was lawful; (2) that a reasonable suspicion
existed that plaintiff was actually involved in a truck hijacking; and (3) that the
suspicion rested on reasonable grounds.
36
Malicious Prosecution
[96] I now turn to whether the plaintiff has proved the case of malicious
prosecution. It is clear that prosecution is initiated when arrested. This court therefore
has to determine whether there was reasonable and probable cause to charge and
prosecute the Plaintiff.
[97] See in this regard Prinsloo & Another v Newman19 at page 495G where
MULLER JA said the following:
"Reasonable and probable cause means an honest belief found on reasonable
grounds that institution of proceedings is justified. This concept involves both a
subjective and objective element. (Becken Strater v. Rottcher & Theunissen - 136
and the English case Glinkski v. Mciver 1962 A. C. 726 at 768.)
[98] Shongwe testified that for a person who is charged with a schedule 6 offence, the
procedure is that the matter would be remanded for seven days to verify some
aspects like the address for example, but in the case of the plaintiff, his senior
explained that plaintiff was his colleague and based on that information, he realised
that they do not actually need seven days because the plaintiff was a police officer
whose identity was verified by his senior, and deemed it fit to roll the matter to the next
day just for the 10 to ascertain the alibi of the plaintiff on that day. So, they did not
need the seven days like in other schedule 6 cases.
19 1975 ( I ) SA 481 (A)
37
[99] Mathebula, by his lack of interest in investigating the alibi of the plaintiff given to
him verbally and in the warning statement at the earliest convenience, as indicated
above, shows a malicious intent on his part. He confirmed under cross-examination
that he knew that plaintiff was not going to be released on the first day in court and
that he would be charged with a schedule 6 offence. He confirmed that charging
plaintiff with a schedule 6 offence, there was great possibility that he was going to be
detained more than seven days.
[100] In my view Mathebula's actions and the decision that he took is a confirmation
that there was an intent to prosecute on his part. He had no justification of wanting to
have the matter remanded for long while at the same time subjecting the plaintiff into
custody for longer than necessary, when the alibis could have been investigated
before charging him. To the question whether the plaintiff was arrested for further
investigation as testified to by Victor, Mathebula first started to deny that the plaintiff
was arrested for further investigation. When pressed further, he said he could not
answer for Victor. If not for further investigation, then what?
[101] Like Victor, Mathebula was cross-examined at great length with regards to the
Standing Orders. It was put to him that not having followed up on the procedure as
required of him by paragraph 4 (2)(a) of Exhibit L, he did not consider the warning
statement of the plaintiff; or follow up on the evidence and he never considered
releasing the plaintiff. Mathebula responded by saying he wouldn 't consider that,
because the plaintiff was already pointed out and for him, being pointed out was
reason enough to charge him.
38
[102] In my view, Mathebula did not comply with the rules and his non-compliance
with the peremptory provisions of the standing orders, also renders a further detention
of the plaintiff from Saturday, unlawful.
[103] If one looks at the steps of Victor and Mathebula, their uncooperativeness; their
unwillingness to even follow up on the procedure which was required of them,
cumulatively, one can on the balance of probabilities infer that there was a
maliciousness to prosecute. I say this because, by arresting and charging the plaintiff,
Victor and Mathebula acting within the course and scope of their employment,
employed by the first defendant, set the law in motion, and thus leading to the
prosecution of the plaintiff, which forms the basis of his second claim against the
second defendant.
[104] It is on record that Victor did not verify the facts as contained in the A 1 and A2
statements of the complainant, as well as the alibi of the plaintiff before arresting. He
confirmed under cross examination that he was well aware that the offence being a
schedule 1 offence, the plaintiff will be charged with a schedule 6 the effect of which
would require a seven-day remand for further investigations. He also confirmed that,
by virtue of being a schedule 6 offence, bail would be opposed. In my mind, he knew
and foresaw the possibility that prosecution would follow.
[105] Mathebula's evidence was that he did not bother to investigate the alibi of the
plaintiff. Like Victor, he relied on the spontaneous pointing out of the plaintiff without
verifying the facts. Mathebula testified and confirmed that he was fully aware that
plaintiff would be prosecuted and remanded into custody for more than seven days in
order to do further investigations, which he initially tried to deny that plaintiff was being
39
arrested for further investigations. Having charged the plaintiff on Saturday morning
and failing to follow proper procedure as explained supra, Mathebula's evidence was
that he opposed bail on a Tuesday when plaintiff appeared in court. It is on record that
the matter could not proceed on Monday because Mathebula had to go and verify the
alibi which he was supposed to have verified and investigated before charging the
plaintiff on Saturday.
[106] In my view, it was as a result of his fai lure to apply his mind reasonably and
objectively that the matter had to be postponed on Monday, for a further 24 hours in
order to allow him to do what he should have done in the first place and for plaintiff to
be able to prepare for his formal bail application. It was submitted on behalf of the
second defendant that the matter could not proceed on Monday because plaintiff's
attorney was not ready. I disagree with this submission.
[107] It is on record that plaintiff was detained in Krugersdorp with specific instruction
that he is not to have contact with anyone as it appears on exhibit B (entry number
1161 on Page 14). Even if the matter could have proceeded on a Monday,
Mathebula's intentions were very clear that he was going to oppose bail and subject
the plaintiff to go through a process of being prosecuted while it is clear that he did not
have reasonable and probable cause. He formulated this intent without even
investigating that an offence was actually committed. This process in my view, did not
only require a statement from the complainant alone, but it needed proper
investigation which involved the steps similar to the steps that were taken by the
plaintiff himself when he was tasked with the intelligence of th is very case (eg.
40
checking the video footage at the place where the complainant says he was; trace
alleged hijackers) .
[108] His failure to investigate the matter properly necessitates an inference that there
was a malicious intent to prosecute. The inference as applied in the case of R v
Blom20 has also been applied in civil proceedings as Schwikkard21
explains as
follows:
"In civil proceedings the inference sought to be drawn must also be consistent with all
proved facts, but it need not be the only reasonable inference: it is sufficient if it is the
most probable inference".
See also Govan v. Skidmore 1952(1) SA 732 N at 734 and McC/eod v. Rens
1997(3) SA 1039 (e)
[109] In my view, Mathebula was not only aware that he was initiating the process of
prosecution , but also foresaw the possibility that he was acting wrongfully, but
nevertheless continued to act reckless as to the consequences of his conduct (do/us
eventualis) .22
[11 O] It has been submitted on behalf of the plaintiff that since there was no evidence
led by the defendants that an attempt to identify or arrest the other co-perpetrators
was made, it was clear from the conspectus of the docket that only the plaintiff and the
20 1939 AO 188 at 202-3
21 p . . I f E . th • • rmc1p es o v1dence. 4 Ed1t1on. PJ Schwikkard et al (2016) at 579
22 H , eyns v venter at 13-14.
41
cell phones found in his office were investigated, and that the court should infer that
the whole prosecution was focussed at the plaintiff alone.
[111] I am inclined to agree with this submission because when this aspect was put to
Mathebula, he confirmed that no other persons have been traced or identified and it
also appeared that no other investigations were done after the plaintiff was released
on bail since the docket had to be taken to the OPP for a decision. As such, looking at
the totality of the actions of both Victor and Mathebula, I am satisfied that they acted
with malice (or animus injuriandi)23. They were aware, at least on the balance of
probabilities that their actions were wrongful and were initiating a prosecution as
mentioned earlier.
[112] This court will reiterate what was said in the case Minister of Justice and
Constitutional Development & Others v. Moleko24 where VAN HEERDEN JA
stated that:
''Animus injuriandi includes not only the intention to injure, but also consciousness of
wrongfulness:
'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
1~ _., Moaki v Reck in & Colman (Africa) Ltd 1968 (3) SA 98 (A): Relyant Trading {Pty) Ltd v Shongwe [2007] I All SA 375
(SCA): JM Potgieter & PJ Visser Neethling·s Law of Personality 2 ed (2005) pp 124-125 (see also ppl72-173 and the
authorities there cited): L TC Harms Am/er 's Precedents of Pleadings, ffh Edition at 247
24 2009(2) SACR 585 (SCA) at 63-64
42
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 do/us, namely of consciousness of wrongfulness, and therefore
animus injuriandi, will be lacking. His mistake therefore excludes the existence of
animus injuriandi.'
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 (do/us eventualis). Negligence on the part of
the defendant (or, I would say, even gross negligence) will not suffice".
[113] Mr Lufuno Godfrey Maphiri the last witness testifying on behalf of the second
defendant, to ld the court that he was the prosecutor at Regional court 2 and he did the
bail application of the plaintiff. He testified that when the docket was given to him, he
had to quickly ask for an adjournment so that he can consult with the investigating
officer in order to find out what the issues were in the matter and familiarise himself
with the contents of the docket. To the question whether he took a decision to oppose
bail or not, Maphiri responded by saying that because time was not sufficient enough
for him to can go through each and every statement in the docket, he acted on the
information given to him by Mathebula and they both took a decision that bail should
be opposed. However, he confirmed under cross examination that he did not
strenuously oppose bail but left the decision to the court as it appears from Exhibit J,
which is the record of the bail proceedings.
43
[114] For reasons unknown to court, it has become apparent that after the docket was
sent to the OPP for consideration, the charges were withdrawn on the instructions of
the Director of Public Prosecution, Gauteng, as indicated supra (ie. Para: Issues of
common cause or not disputed and forming part of exhibit H) wherein a certificate
no/le prosequi was issued on 23 March 2016 as it appears on page 111 of Exhibit D.
Plaintiff has submitted that court should take into consideration the issuing of this
certificate as prove that there was a maliciousness to prosecute.
[115] I am inclined to agree with this submission. I am of the view that if there was a
prima case based on reasonable suspicion and rested on reasonable grounds from
the beginning, and where there was reasonable and probable cause to prosecute, the
second defendant would not have issued a certificate no/le prosequi, which in my mind
is an indication and prove that the defendant has failed in his case against the plaintiff.
[116] Having considered both arguments before this court, and taking into
consideration all factors, as well as the totality of all the evidence before the court, I
am satisfied that the plaintiff has succeeded and satisfied all the requirements to prove
his claim of malicious prosecution.
[117] As was presented ·during oral argument and also supported in the heads of
argument (HOA), it was submitted on behalf of the plaintiff that based on a proper
conspectus of the evidence, plaintiff will not persist with its claim against the Second
Defendant. The following reasons appears from the plaintiff's HOA:
44
(a) As the investigation diary was never provided during discovery and even after a
Rule 35(3) was served, it was not known to Plaintiff what the interactions
between the prosecutors and the members of the First Defendant were;
(b) After the evidence was led, it is in our submission clear that the Defendants did
not pursue the prosecution, to the contrary the prosecutors that testified to a
certain extent assisted the Plaintiff to have his bail hearing heard as soon as
possible;
(c) The Second Defendant had to be a party to the proceedings for the simple
reason that the First Defendant's liability as to the unlawful arrest and detention
prima facie stops when he appears in Court for the first time. Thereafter, only
after the evidence, it could be established that the reason for the further
detention (from the 26th of October to the 27th of October 2015) was at the
specific instance and request as well as the result of the First Defendant not
doing its work. The alibis had to be verified , the Plaintiff had to prepare his
case for bail , after being prevented to contact his family and/or legal
representatives over the weekend.
(d) It is therefore clear, and only can this be said after the evidence at trial , that the
First Defendant was the party who persisted to request that the Plaintiff be
detained and further prosecuted.
45
[118] I am in agreement with the submission and reasons advanced by the plaintiff. It
is clear from the evidence that Maphiri only acted on information supplied by
Mathebula and had no choice but to continue with prosecution.
Costs
The costs order must follow the successful party. I am inclined to agree with the
plaintiff's submission that since both defendants were represented by the same legal
team, in as far as there may be wasted costs occasioned by the joinder of the
second defendant, it is only appropriate that unsuccessful defendant carry the costs
of the successful defendant. As such, it follows that the first defendant must be held
liable for costs.
ORDER
In the circumstance, I make the following order:
a) The order marked X attached is made an order of court.
P. D PHAHLANE
Acting Judge of the High Court Gauteng, Pretoria
46
Heard on
For the Plaintiff
Instructed by
For the Defendant
Instructed by
Date of Judgment
: 20-23 November 2017
: Adv G Jacobs
: Adv C Zietsman
: Loubser Van der Walt Inc.
: Adv P Hemraj SC
: Adv M Kgwale
: MT MALULEKE A TIORNEYS
: 19 March 2018
47
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
On the ___ day of November 2017
Before her Ladyship Ms. Justice Phahlane AJ
In the matter between:
SUDESH KUMAR VIJAI
and
THE MINISTER OF POLICE
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
DRAFT ORDER
Case No: 41706/2016
Plaintiff
First Defendant
Second Defendant
Having read the papers filed of record, having heard Counsel for the Parties
and having considered the matter, the following is ordered:
1. The merits and quantum are separated in terms of Rule 33(4);
2. The First Defendant is liable for all Plaintiff's proven or agreed
damages relating to his unlawful arrest on 23 October 2015 to his
release on bail on 27 October 2015;
/ . -- . ~ .
- 2 .
3. The First Defendant is liable for all Plaintiff's agreed and/or proven
damages relating to his prosecution from 23 October 2015 to the
23rd of March 2016;
4. The First Defendant is to pay the Plaintiff's costs, on a party and
party scale for the action on the merits, including the costs incurred
by the employment of two counsel ;
5. In as far as the Second Defendant incurred any costs in the
proceedings, the First Defendant is ordered to pay the Second
Defendant's costs:
6. The quantum of this matter is postponed sine die.
BY ORDER
REGISTRAR
On behalf of Plaintiff: Adv. G. Jacobs 082 890 3219
Adv. C. Zietsman 082 947 7632
On behalf of Defendants: Adv.