Download RTF format

IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
REPUBLIC OF SOUTH AFRICA
REPORTABLE
Case Numbers 26171/06 and 26119/06
DATE: 25/01/2011
:In the matter between
JANSE VAN DER WALT, JEREMIA...................................................Plaintiff
VAN WYK, ANDRIES DANIËL......................................................Plaintiff
and
THE MINISTER OF SAFETY AND SECURITY..............................Defendant
THE MINISTER OF JUSTICE....................................................Defendant
MOCHITELE, KANTI JAMES........................................................Defendant
INSPECTOR PHOSHOKO …..............................................Defendant
JUDGEMENT
VAN DER MERWE, AJ
2
1.
The plaintiffs seek damages for malicious prosecution and unlawful arrest
and detention. Separate actions were instituted by the two plaintiffs but the
matters were subsequently consolidated. In the consolidated proceedings
Jeremia Janse van der Walt is referred to as the first plaintiff and Andries
Daniël van Wyk is referred to as the second defendant. I will do likewise in
the current judgement. Although the allegations in the particulars of claim
do not keep the different causes of action clearly separate, the allegations
in the pleadings cover the various elements of the plaintiffs’ causes of
action. It is not only alleged that the third defendant acted maliciously in
laying false charges against the plaintiffs but that the arrest and
prosecution of the plaintiffs were malicious and that all the defendants
acted “animo iniurandi”. It is alleged that Inspector Phoshoko, the fourth
defendant, acted in the course and scope of his employment as a
policeman of the SAPS. It is also alleged that the magistrate, Magistrate
Mosese, and the prosecutor, Ms Zinn, who were inter alia involved in the
first appearances of the plaintiffs subsequent to their arrest, acted at all
relevant times "within the course and scope of their employment as judicial
officials." These allegations were admitted in both pleas filed on behalf of
the first, second and fourth defendants.
Factual Background
2.
Both plaintiffs were previously high ranking officers in the SAPS until
approximately 1999. The first plaintiff served for 16 years in the SAPS. The
3
second plaintiff served for 14 years until 1999. They held the rank of
captains at the time of their resignation. Subsequently they became
employed with the Imperial Group. The second plaintiff is the risk manager
for the Imperial Group and the first plaintiff works in the same department.
Their functions are to investigate criminal conduct concerning the various
companies in the Imperial Group and they often travel in Africa to visit the
various offices of the group. They investigate events such as armed
robberies, truck hijackings and theft and are involved in the recovery of
vehicles that were stolen in such criminal activities.
The current litigation finds its original cause in a civil dispute between the
second plaintiff and the third defendant, arising from the sale by the third
defendant of a residential property to the second plaintiff during June 2002. The
physical address of the property is 17 Poinsettia Crescent, Meyersdal, Alberton.
The second plaintiff took occupation of the property during July 2002 and was
obliged to pay occupational rental until the transfer of the property had been
effected. Disputes arose between the parties regarding certain defects in the
property. The second plaintiff ceased making payment of occupational rental to
the third defendant directly but made such payments into the trust account of his
attorney pending the resolution of the disputes between the parties. Towards the
end of 2002, the third defendant cancelled the sale agreement, the validity of
which cancellation was disputed by the second plaintiff, who remained in
occupation of the property. The civil disputes are currently pending in the High
Court and due to be heard during 2011.
The third defendant on more than one occasion attended at the property
occupied by the second plaintiff, without obtaining the second plaintiff's
permission to do so. The second plaintiff testified that 13 incidents involving the
third defendant took place at the property. Examples of such incidents are that
the third defendant, without prior arrangements with the second plaintiff, uplifted
the paving on the driveway, dug up the paving in front of the front door to put a
fish pond in, offloaded a pile of sand with a big truck at the garage entrances,
commenced building a wall in the garden and started digging trenches in the
garden. On a few occasions the third defendant arrived with police officers late at
night, during which events the second plaintiff were advised by the police,
accompanied by the third defendant, that he should vacate the property.
The third defendant's approach was that the sale agreement had been cancelled
and that he was entitled to exercise his rights of ownership at the property, to
carry out maintenance and to attend at the property in order to recover payment
of the occupational rental from the second plaintiff. The second plaintiff laid
4
criminal charges against the third defendant on 4 occasions. The second plaintiff
contended that nothing came of the charges. According to the testimony of the
third defendant, he (the third defendant) was arrested on about 5 occasions and
on 2 occasions he had to spend nights at the police station and appeared in a
criminal court on 3 occasions. The third defendant testified that he was charged
with trespassing and intimidation but was told by the prosecutor that he was not
guilty and should go home. The third defendant nevertheless did not institute a
counterclaim against the claims of the plaintiffs.
3.
On Saturday evening, 29 November 2003, the third defendant arranged
for a group of people to attend ancestral celebrations at the property. The
second plaintiff and his wife were advised by the police to remain inside
the property, apparently since the third defendant had obtained permission
from the local authority to proceed with ancestral celebrations. The third
defendant arranged for the delivery of a portable chemical toilet at the
property for the use by the third defendant's guests during the ceremony.
During the ceremony, a sheep was slaughtered at the premises and a fire
was made on the front lawn. The entrails of the sheep were left hanging
on trees and on the gutters of the house and the property was not cleaned
up after the ceremony had been completed. Upon the conclusion of the
ceremony, the third defendant left the portable toilet at the property with
the intention of collecting it on a later occasion. When the third defendant
arrived back at the property on the next day the portable toilet had been
removed and could not be traced. According to the second plaintiff, he has
no idea what happened to the portable toilet. There is no garden wall
between the house and the street. The second plaintiff and his wife went
to church during the next morning and when they returned they noticed
that the portable toilets had been removed. The second plaintiff assumed
that the third defendant had collected it.
5
The third defendant reported that the portable toilet had been stolen to the
Brackendowns Police Station. In his initial statement he did not identify the
second plaintiff or any other person as a suspect. On 3 December 2003 the third
defendant informed the police that he suspected that the second plaintiff had
stolen the toilet. As a result of this information, the police re-opened the case for
further investigations. The case was assigned to the fourth defendant.
A few days later, on Sunday, 7 December 2003, the third defendant and his
brother arrived unannounced at the property occupied by the second plaintiff with
a bakkie and off-loaded a number of items such as used truck tires, truck rims,
empty 220 litre drums and scrap iron into the driveway in front of the garage
doors. Upon making enquiries, the second defendant was ignored by the third
defendant and his brother who drove off after the items had been offloaded. The
third defendant testified that the owner of the property which he rented expressed
dissatisfaction about the items being kept at the property and he thereupon
decided to remove them to his own property, occupied by the second plaintiff, for
storage. According to the third defendant he knocked at the door of the property
to inform the second Plaintiff of his intentions but there was no response.
The second plaintiff thereupon contacted the first plaintiff, who had a bakkie, and
requested his assistance. They loaded the items on the first plaintiff's bakkie and
drove to the house occupied by the third defendant in Brackendowns, which is
also in the Alberton area. Without obtaining permission from the third defendant,
the second plaintiff opened the gate of the property and the first plaintiff reversed
the bakkie into the driveway. There are conflicting versions as to the events
thereafter. According to the plaintiffs, the first plaintiff remained inside the vehicle
whilst the second plaintiff got onto the back of the bakkie and started offloading
the items from the bakkie. The first plaintiff left the engine of the vehicle idling as
the plaintiffs wanted to get away as soon as possible, since they hoped to avoid
a confrontation with the third defendant. The third defendant, his wife and brother
came out of the house when the empty drums were offloaded, as they made a
noise when they were dropped on to the driveway. They screamed at the
plaintiffs and the third defendant grabbed something like a broomstick. By that
time all the items had been thrown off the bakkie and the first plaintiff rapidly
drove away whilst the second plaintiff was still standing on the back of the
bakkie. Stones were thrown at them as they were driving away.
According to the first plaintiff’s version of events on 7 December 2003, he was
approached by the third defendant's wife whilst he was sitting in the vehicle and
whilst the second plaintiff was throwing the items from the back of the bakkie.
The third defendant's wife picked up stones and tried to hit him with the stones.
As he tried to block the blows, he was hit with a rock on his upper arm. The first
plaintiff saw the third defendant briefly in the rear view mirror. His impression was
that the third defendant was trying to put items back on to the bakkie. He did not
observe a child at the scene. He did not observe a gas canister being used by
the second plaintiff. As he drove off, his bakkie was hit by a stone thrown by the
third defendant's wife. Both plaintiffs testified that although they owned
handguns, they did not take them along when they attended at the third
defendant's premises.
The version of the third defendant is that his daughter, Mapeme, came into the
house in a frightened of state and screamed that there were people who wanted
6
to kill her mother. When he went outside he observed the second plaintiff on top
of the van and the first plaintiff, standing outside the vehicle, pointing a firearm at
his wife. The second plaintiff was throwing items off the vehicle and the third
defendant was struck by a tyre lever on the feet and by a truck wheel, which
caused him to fall down. The second plaintiff also sprayed teargas onto them
when the first plaintiff was driving away. The third defendant and his family then
went to the police station where they were advised to proceed to the clinic, in
light of the injuries they had sustained. They were provided by the police with a
J88 form to be completed by the medical practitioner. They then proceeded to a
clinic in Vosloorus to obtain medical treatment.
The third defendant's wife subsequently laid charges of assault and pointing of a
firearm against the plaintiffs. The plaintiffs also laid charges of assault and
malicious damage to property regarding the incident at the third defendant’s
house. No plausible explanation was advanced by Inspector Phoshoko as to the
reasons why only the complaints of the third defendant and not those of the
plaintiffs were further investigated, leading to the arrest of the plaintiffs.
According to the third defendant, the second plaintiff also pointed a gun at his
brother on 14 February 2004, when he (the third defendant) and his brother
attended at the property occupied by the second plaintiff to carry out repair work
on the paving. The third defendant's brother laid a complaint with the police
against the second plaintiff.
According to the testimony of the second plaintiff, he received a telephone call
from the branch commander at the detective branch at Brackendowns Police
Station some 6 months later, on 25 May 2005. He was informed that a warrant of
arrest had been issued for himself and the first plaintiff and that they were to
report at the police station at 08h00 the next morning, 26 May 2004. The next
morning, Wednesday, 26 May 2004, the plaintiffs reported to the branch
commander and were referred to Inspector Phoshoko, the investigating officer,
who knew the plaintiffs, as they had worked together on criminal matters in the
past. According to the plaintiffs, Inspector Phoshoko offered to release them if
they made a payment of R30,000 to him. They also testified that Inspector
Phoshoko informed them that the third defendant had offered him R10,000 to
have the plaintiffs arrested. The plaintiffs further alleged that Inspector Phoshoko
received a telephone call from the third defendant whilst they were in his office.
These allegations were denied by Inspector Phoshoko.
The plaintiffs were arrested by Inspector Phoshoko and held in the holding cells
at the Alberton police station. About one hour later they were taken in the back of
a police van to the Alberton Magistrates Court. They were followed by Inspector
Phoshoko in his police vehicle. They were locked up at the court for a few hours,
whereafter they were taken to the holding cell at the court. They were handcuffed
and in public taken through the court building. When they arrived at court, the
third defendant was already present in court. The interpreter put charges of theft
of the portable toilet, pointing of a firearm and assault to both plaintiffs. According
to the testimony of Inspector Phoshoko, the plaintiffs were not arrested for the
charge of theft of the portable toilet but for the charges of pointing of a firearm
and assault. The theft charge was, however, placed on the role together with the
other charges.
According to the plaintiffs, the magistrate had a discussion with the interpreter
7
and mentioned in open court that she "will not tolerate this anymore." She
adjourned the court and instructed the prosecutor to come and see her. The
plaintiffs could see them talking outside the court through the open door,
whereafter she came back. She wrote something on the documents in front of
her and informed the plaintiffs that they were now charged with armed robbery.
The second plaintiff tried to address the court and requested the prosecutor to
show the two dockets to the magistrate in order to demonstrate that they were no
grounds for the charge of armed robbery. The magistrate informed the plaintiffs
that they must discuss the matter with the senior public prosecutor. The second
plaintiff informed the magistrate that they were handcuffed and under arrest and
would not be able to discuss the matter with the senior public prosecutor. When
the second plaintiff enquired about bail, the magistrate indicated that armed
robbery was a schedule 6 crime and that there was no bail. The magistrate
thereupon instructed the court personnel to take the plaintiffs away and ordered
that the matter be postponed for 7 days to 1 June 2004.
The plaintiffs were thereafter placed in foot chains and together with other
suspects transported to the Boksburg prison. They were locked up in an
extremely crowded cell in the trial awaiting department, containing between 200
and 300 prisoners. The plaintiffs were fearful because they are involved in
criminal investigations in the course of their employment and some of the
suspects they had arrested were detained at the Boksburg prison. They
overheard some of the prisoners mentioning their names. They were approached
by a former policeman who recognised the second plaintiff and were told that if
they were policeman they were not going to make it that night, as people were
talking inside the cells. Eventually the former policeman assisted the plaintiffs to
be moved to the maximum security facility in the prison where they were locked
up with 12 other prisoners inside a small cell. The cell only had one water tap
and a non-functioning toilet. It was winter, they had one blanket and had to sleep
on the cold cement floor. They were scared and decided to remain awake
throughout the night to guard against a possible attack by their fellow prisoners.
They remained in Boksburg prison the next day, being Thursday 27 June 2004.
Their legal representatives arranged for a bail application on the day thereafter,
being Friday morning.
On Friday, 28 May 2004, the plaintiffs were taken to the Alberton Magistrates'
Court for a bail application. They were put in handcuffs and leg chains. Initially
they were informed by their legal representatives that they could not reach
Inspector Phoshoko for purposes of the bail application. Subsequently, they were
informed by their legal representatives that they (the legal representatives)
managed to speak telephonically to Inspector Phoshoko but that he refused to
come to court. Inspector Phoshoko denies that he spoke to the plaintiffs’ legal
representative or that he was requested to attend court. Attorney Culhane
testified that he spoke to Inspector Phoshoko during the course of the day, in the
offices of the senior prosecutor, Mr Molefe, and that he handed the phone to the
senior prosecutor, who also spoke to Inspector Phoshoko. Attorney Culhane
testified that Inspector Phoshoko refused to attend court. The result was that the
magistrate, who was again Ms Mosese, refused to hear the bail application
without the investigating officer being present at court. After the court was
adjourned Inspector Phoshoko arrived at court at 16h15. The magistrate refused
8
to hear the bail application after hours. Inspector Phoshoko testified that he did
not receive the messages left on his cell phone and denied that he was
requested by the prosecutor and by Mr Culhane to attend court on 28 May 2004.
By then, the prison van had already left and the plaintiffs were left with their legal
representatives at court. Since they were concerned that escape charges might
be preferred against them, they then proceeded to Alberton police station, where
the police refused to accept them. They decided to go back to Boksburg prison,
where the prison chief refused to accept them after hours. Eventually they made
contact with the police commander at Alberton police station, who ordered that
they be locked up for the night at the Alberton police station. They spent the
Friday night in the cells at Alberton Police Station. Plans to launch an urgent bail
application in the High Court were abandoned because the urgent judge
indicated to the plaintiffs' legal representatives that the testimony of the
investigating officer will be required.
It was an extremely cold night and they had to sleep on the cement floor of a
crowded cell. As a result of the cold night, both of the plaintiffs developed
influenza. They were taken back to Boksburg prison on Saturday morning. There
they were again incarcerated under the same conditions, until Tuesday morning,
1 June 2004, the date to which their bail application had been postponed to.
Because they were held in the maximum security section, they had to spend 22
hours per day inside the jail. They had to take turns to stay awake. Their fellow
prisoners found out that they were former police officers and displayed an
aggressive attitude towards them. Both of them had lost a lot of weight during the
period of their incarceration. They had spent one week in various cells since the
day of their arrest on 26 May 2004. On 1 June 2004, they were again taken in
chains to Magistrate's Court where the armed robbery charge was changed and
they were given bail on an unopposed basis.
Both plaintiffs testified that they were traumatised by their incarceration and the
circumstances under which they were kept. Both suffered psychologically for a
considerable period after they were released. As former police officers and as
criminal investigators they were humiliated by being paraded in public as
criminals and by being treated as criminals over a period of 7 days. They
suffered reputational harm and experienced that people in their work
environment were suspicious of them after their release.
After the plaintiffs were released on bail there were a number of appearances
and on 19 August 2004 the criminal trial against the plaintiffs commenced. The
third defendant successfully applied for the recusal of the presiding magistrate
Martini. Thereafter the matter was allocated to magistrate Mathe. The matter
thereafter postponed on several occasions during which the plaintiffs had to take
off from work to attend court and had to pay legal fees. The third defendant, his
wife and his brother testified against the plaintiffs on behalf of the state. After the
close of the state's case, the plaintiffs were found not guilty and discharged in
terms of section 174 of the Criminal Procedure Act on 15 March 2005. In terms of
section 174 of the Criminal Procedure Act, an accused may be discharged at the
close of the case for the prosecution if the court is of the opinion that there is no
evidence that the accused committed the offence referred to in the charge or any
offence of which he may be convicted on the charge.
9
The Claim against the third Defendant, Mr KJ Mochitele
4.
There are material differences between the plaintiffs and the third
defendant regarding the events of 7 December 2003 at the residence
occupied by the third defendant, when the plaintiffs returned the items
earlier offloaded by the third defendant at the property occupied by the
second plaintiff. I am of the view, for reasons that follow, that the version
of the plaintiffs must be preferred above that of the third defendant. The
record of the criminal proceedings against the plaintiffs in the magistrate's
court pertains to the same events and form part of the exhibits before the
court. It constitutes admissible evidence of what was testified on that
occasion. It is evident from the record that the third defendant, his wife
(who was the complainant of the charges of assault and pointing of a
firearm) and the brother of the third defendant presented versions which
conflicted in material respect with one another. The fact that the testimony
of the third defendant and his relatives who supported the criminal
charges against the plaintiffs were regarded as of such an unreliable
nature that it justified a discharge of the plaintiffs in terms of section 174 of
the Criminal Procedure Act, without the need for the plaintiffs to present
evidence, is already indicative of the arduous task faced by the third
defendant at the hearing to establish that his version should be accepted
and that of the plaintiffs rejected. The findings of the Magistrate Court are
of course not binding in the current proceedings. However, a perusal of
the record in the Magistrate's Court proceedings confirms that the section
10
74 discharge was properly granted in favour of the plaintiffs and that the
testimony of the third defendant and his relatives were rightly rejected.
Doctor Rasia Mokoto was called as a witness on behalf of the third defendant.
He was the district surgeon who examined the Mochitele family on 7 December
2003. He confirmed that the SAP J88 documents were completed by him. The
forms reflected that the third defendant, his wife and daughter presented with
symptoms of reddened eyes and runny noses and that the third defendant had
an open abrasion of some 2 cm on his right shin. Dr Mokoto was called as a
factual witness and did not express an expert opinion of the cause of the
symptoms presented by his patients. Whilst the existence of the forms provide
some corroboration for the version of the third defendant, the third defendant and
his family did not proceed directly to the hospital for medical treatment. They only
went there after the charges were laid against the plaintiffs and upon advice of
the police to have the medical forms completed. The probability that the
symptoms recorded in the forms were caused by the conduct of the plaintiffs
must be assessed against the reliability of the testimony presented at the
magistrate's court trial of the plaintiffs and at the current proceedings.
In order to succeed with the claim for malicious prosecution against the third
defendant, the plaintiffs had to establish that the third defendant had instigated or
instituted the proceedings, that the third defendant acted without reasonable and
probable cause, that the third defendants acted with malice or animo iniuriandi
and that the prosecution had failed. (Minister for Justice and Constitutional
Development v Moleko [2008] 3 All SA 47 (SCA), par 8.) On the testimony as
presented by the plaintiffs, all the elements set out above have been established.
On the testimony as presented by the third defendant, he had reasonable and
probable cause for instigating the proceedings and he did not proceed "in the
awareness that reasonable grounds for the prosecution were (possibly) absent.”
(Minister for Justice and Constitutional Development v Moleko (above), paras 57
- 63.) In comparing the testimony of the plaintiffs against that of the third
defendant, it becomes evident that the testimony of the plaintiffs must be
accepted above that of the third defendant.
Both plaintiffs testified as to the events of 7 December 2003, which gave rise to
the prosecution of the plaintiffs in the Magistrate's Court and to the current
proceedings. They were subjected to lengthy and intense cross-examination by
two counsel. Apart from a few minor issues, no material conflicts or variances
were established in respect of their testimony. Their demeanour in court was that
of witnesses who were sincere and honest. They remained courteous and patient
even when they were repeatedly accused by counsel for the first and second
respondent of lying.
Although the third defendant testified in a dignified and restrained manner, he
could not hide the animosity and resentment he harbours towards mainly the
second plaintiff. The root cause of this animosity arose from the civil disputes
between the parties pertaining to the sale of the third defendant's property to the
second plaintiff and the second plaintiff's continued occupation of the property
notwithstanding the third defendant's attempt to cancel the sale agreement. On
11
the probabilities of the matter it appears that the third defendant embarked on a
premeditated campaign to ensure that the second plaintiff was penalised through
the criminal procedure system for what the third defendant regarded as
prejudicial conduct towards him.
Under cross-examination by Mr Kemp on behalf of the plaintiffs, various material
contradictions between the testimony of the third defendant at the current hearing
and the testimony presented by his wife at the Magistrate's Court proceedings
were put to the third defendant. Although the third defendant's wife did not testify
due to serious illness, her testimony in the Magistrate’s Court proceedings was
before the Court in the form of the record of the Magistrate Court criminal
proceedings. The Court was subsequently informed during argument that, sadly,
the third defendant's spouse had passed away as a result of her illness at the
time the hearing.
The third defendant was unable to present plausible explanations for the
material contradictions between his testimony and that of his spouse. By way of
example, the third defendant could not explain the conflict between his testimony
in the current proceedings that his daughter came into the house screaming that
her mother was being killed, whilst his wife testified that she had sent her
daughter to call the third defendant before any argument or confrontation had
arisen between herself and the plaintiffs. According to the testimony by the third
defendant's wife in the Magistrate’s Court proceedings, she sent her daughter to
call the third defendant because she thought the second plaintiff had come to
talk to them.
The third defendant could not explain the conflict between his testimony in the
current proceedings, to the effect that the second plaintiff remained standing on
the back of the bakkie at all times and specifically also when he sprayed teargas
generally in the direction of his family as the vehicle was moving away, and his
wife's testimony in the Magistrate’s Court proceedings that the second plaintiff
had jumped off the bakkie, ran past her and sprayed teargas directly into the
eyes of their minor daughter. This evidence stands central in the conflicting
versions presented by the parties. It is improbable that such material conflicts
between the third defendant and his wife’s version on a material issue can be
ascribed to an incorrect recollection or differences in the manner the events were
observed. On the probabilities, I am driven to the conclusion that the most
probable explanation for these material inconsistencies is that neither of the
versions presented by the third defendant and his wife correctly reflected what
actually happened.
The third defendant could not explain the conflict between his testimony in the
current proceedings that he immediately saw the first plaintiff pointing a firearm at
his wife when he came out of his house and the testimony of his wife in the
Magistrate’s Court proceedings that she was first confronted with the firearm
after the teargas had been sprayed, when she was running to the other side of
the bakkie to escape from the teargas. This testimony of the third defendant's
wife was also inconsistent with the third defendant's testimony in the current
proceedings that the second plaintiff sprayed the teargas when they were
departing from the property in order to get away.
The third defendant testified that they could not drive and they had to be driven to
the police station in a motor vehicle by his brother. On the other hand, his wife
12
testified in the Magistrate’s Court proceedings that they had to walk to the police
station because they could not drive as a result of the state she was in. The third
defendant could also not provide a plausible explanation for the fact that, on his
own version, he nevertheless did not hesitate to approach the plaintiffs even
though he immediately observed when he came out of the house some 15-25 m
away (he indicated the length of the courtroom) that his wife was held at gunpoint
by the first plaintiff, apart from stating that he regarded the plaintiffs as cowards.
The inconsistencies between the testimony of the third defendant in the current
proceedings and that of his wife at the criminal prosecution of the plaintiffs in the
Magistrate Court's proceedings were of such a fundamental and material nature
that it strongly suggests that their versions were fabricated, to the extent that it
was in conflict with the testimony of the plaintiffs. If the third defendant's version
was in accordance with the actual events, it is improbable that his version and
that of his spouse, albeit on different occasions, would have disclosed such
material inconsistencies.
Although there were other inconsistencies between the testimony of the third
defendant in the current proceedings and that of his wife and brother at the
criminal prosecution of the plaintiffs, Mr Mnyandu argued, correctly in my view,
that these issues were not specifically put to the third defendant under
cross-examination and that he had no opportunity to respond thereto. These
inconsistencies are accordingly not taken into account for current purposes.
Both the second plaintiff and the third defendant failed to put their faith in their
civil remedies in the civil courts, took the law on occasion in their own hands and
attempted to use and abuse the criminal procedure in order to retaliate against
one another. In the end, it was the plaintiffs who paid the highest price in the
continuing acrimony between the two main protagonists, in the form of
incarceration over a period of seven days under humiliating circumstances. In
this, the first plaintiff was, to a large degree, an innocent victim who had to suffer
the consequences of the continuing cycle of criminal charges and counter
charges, merely through his association with the second plaintiff, although the
first plaintiff must have been aware of the fact that they were illegally trespassing
on the property of the third defendant. In the present matter, however, it is the
arrest and the detention of the plaintiffs which form the subject matter of the
proceedings.
The fact that the plaintiffs, as former high-ranking police officers, should have
known better than to trespass illegally onto the property occupied by the third
defendant in retaliation to the third defendant's earlier conduct on the same day,
rather than utilising the civil remedies available to the second plaintiff, does not
have the consequence that they could be wilfully deprived of their personal liberty
and their constitutional rights in that regard. Both the second plaintiff and the third
defendant were equally guilty of the failure to focus on their civil remedies in the
civil courts against each other. The irony is that the dispute between the parties
would have been finally resolved a long time ago had they utilised their civil
remedies earlier.
As far as the claim for malicious prosecution is concerned, the third defendant
was only the complainant in respect of the alleged theft of the toilet. In respect of
the charges of assault and pointing of a fire-arm, the complainant was his wife.
The third defendant, however, accompanied his wife and his brother to the police
13
station when the charges were laid. He provided a statement to the police, the
falseness of which has been dealt with above. He must have been aware that the
statements of his wife and his brother also contained false evidence. He attended
at the charge office of the Alberton Police Station on the day the plaintiffs were
arrested. The third defendant admitted, under cross-examination, that he made
enquiries regarding the prosecution of the plaintiffs with inspector Phoshoko, the
senior public prosecutor of Alberton Magistrate Court, the police area
commissioner in Germiston, the local minister of Safety and Security and with a
state advocate at the High Court in Johannesburg, advocate Maro. It is not a
requirement that the third defendant must actually have instituted the
proceedings. The third defendant is liable if he instigated the proceedings or if he
wilfully made a false statement to the police. (Prinsloo v Newman 1975 (1) SA
481 (A) 492.)
In Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 197A-198A
the Appellate Division considered the requirement that the defendant should
have "set the law in motion", "instigated" or "instituted" the proceedings. The
court recognised that it involves the "vexed question of causality" and stated that
the requirement is especially problematic where the necessary formal steps to
set the law in motion have been taken by the police and it is sought to hold
someone else responsible for the prosecution. The same approach would in my
view apply to a situation where the formal steps to set the law in motion have
been taken by a third party such as the defendant's spouse. The Appellate
Division referred with approval to inter alia the following statement in the
American Restatement of the Law of Torts, vol III, sec 563, comment g:
"If, however, the information is known by the giver to be false, an
intelligent exercise of the officer's discretion becomes impossible and a
prosecution based thereon is procured by the person giving the false
information. In order to charge a private person with responsibility for the
initiation of proceedings by a public official, it must therefore appear that
his desire to have the proceedings initiated expressed by direction,
request, or pressure of any kind was the determining factor in the official's
decision to commence the prosecution or that the information furnished by
him upon which the official acted was known to be false."
5.
Not only must the third defendant have known that the information
furnished by himself, his spouse and his brother was false but he also
14
persistently, on his own version, made enquiries with various officials to
high levels of authority to ensure that the prosecution of the plaintiffs
proceed. It must accordingly be accepted that the third defendant’s
conduct complied with the requirement of causality regarding the
instigation of the proceedings against the plaintiffs.
I am accordingly of the view that the plaintiffs have established the requirements
of malicious prosecution against the third defendant. The conduct of the third
defendant caused the arrest and the initial detention of the plaintiffs. From the
chronological analysis of events set out above, it is however evident that the
continued detention of the plaintiffs were caused by extraordinary and
inexplicable events when the plaintiffs first appeared in the magistrate's court on
the day of their arrest on 26 May 2004.
Mr Mnyandu, who appeared on behalf of the third defendant, contended that
there was no causal link between the conduct of the third defendant and the
continued detention of the plaintiffs after the first hearing of 26 May 2004. I am
inclined to agree with his submissions in this regard. The third defendant cannot
in my view, on the evidence presented, be held causally responsible for the
continued detention of the plaintiffs after their first appearance. The third
defendant never instigated a charge of armed robbery against the plaintiffs and
gave unequivocal evidence at the criminal proceedings against the plaintiffs in
the Magistrate's Court that there was no armed robbery. There is no evidence
that he was involved in any manner whatsoever in the formulation of the charge
of armed robbery against the plaintiffs. The unwarranted and inexplicable
formulation of the charge of armed robbery, which led to the continued detention
of the plaintiffs, constituted a novus actus interveniens, for the consequences of
which the third defendant cannot be held legally liable. It follows that the third
defendant can only be liable for the first few hours during which the plaintiffs
were detained until their first appearance in court on 26 May 2004. This will
obviously impact materially on the quantum of the damages recoverable from the
third defendant, an issue to which I will revert below.
The Claim against the Minister of Justice
6.
The testimony of the plaintiffs regarding the formulation of a charge of
armed robbery against them by the magistrate stands by and large
unchallenged. The prosecutor who appeared on behalf of the state was
Ms Zinn. She confirmed that she was at the time a newly appointed and
15
inexperienced prosecutor. She testified that the charges would have been
formulated by the control prosecutor, Mr Molefe. She repeatedly stated
that she had no independent recollection of what happened in court on 26
May 2004. She based her testimony on what she believed would have
happened in the normal course of events. Neither the magistrate nor the
control prosecutor who allegedly attended to the formulation of the
charges against the plaintiffs were called to testify. It follows that the
testimony of the plaintiffs had not been seriously challenged and that their
version must be accepted above that of Ms Zinn, which was based on
what she believed would have happened in the ordinary course of events.
The testimony of the plaintiffs referred to above establishes that the decisive
reason why they were not granted bail on their first appearance was because the
magistrate willfully and without any factual basis for doing so interfered in the
formulation of the charges to introduce the charge of armed robbery. This
resulted in the plaintiffs being charged with a schedule 6 serious offence which
justified the postponement of the bail application for a period of seven days. It is
evident from the testimony of the plaintiffs that the reformulation of the charges to
constitute armed robbery was the operative reason why an informal bail
application was not proceeded with on the date of their first appearance.
Inspector Phoshoko's testimony was that he never opposed the plaintiffs’ bail
application. The testimony of Mr Culhane was that the control public prosecutor
also agreed during discussions the next day not to oppose the plaintiffs' bail
application. Ms Zinn also testified that "had there been an informal bail
application it would not have been necessary for him [the investigating officer] to
actually come to court to appear for the informal bail application.” This testimony
of Ms Zinn also confirms that an informal bail application would have been
possible. The testimony of the plaintiffs and the probabilities suggest that the
plaintiffs would have received bail on their first appearance had it not been for the
conduct of the Magistrate.
It is significant that the plaintiffs' version of the magistrate's conduct is
corroborated by the court record and the contemporaneous documentation that
served before the Magistrate's Court at the time of their first appearance and
thereafter. The annexures to the original charge sheet (which appear at page
48-52 of exhibit "D") nowhere reflect that a charge of armed robbery was
formulated against the plaintiffs. At page 47 of exhibit "D" issues pertaining to the
bail proceedings were recorded. It is evident from a perusal of this document that
the charge "possession of unlicensed firearm" was deleted in handwriting and
16
that the charge of "armed robbery" was inserted on this document only. This
obvious change to the original charges on the document dealing with bail
proceedings accordingly serves as contemporaneous and objective corroboration
of the plaintiffs' testimony.
Ms Zinn testified that she “cannot say specifically why this matter was postponed
for 6 days later.” She testified that in the normal course of events bail
applications were postponed if the accused indicated that they required legal
representation. The unchallenged testimony of the plaintiffs regarding the events
on the specific day in court established, however, that the question of legal
representation played no role in the magistrate's decision not to proceed with a
bail application. To the contrary, both plaintiffs testified that the magistrate
expressly indicated that the reason why no bail was being considered was
because they were charged with a schedule 6 offence. As a matter of logic as
well as principle, including the values enshrined in the constitution, an accused's
request for legal representation should not be the sole issue which prevents bail
from being granted on an informal basis where appropriate, in the absence of
opposition thereto by the public prosecutor and the investigating officer, unless
the accused requires that bail should not be considered on an informal basis
prior to him receiving legal representation. Although Ms Zinn testified that it is not
the usual practice for a bail application to be dealt with on a first appearance, she
conceded that "it is not that it cannot happen that on first appearance a bail
application also proceeds". Ms Zinn confirmed that she had no independent
recollection whether the plaintiffs attempted to apply for bail on their first
appearance.
It is a well established principle that a judicial officer enjoys a complete immunity
against delictual liability for acts performed in the execution of his or her duties.
There are compelling policy considerations underlying the immunity of judicial
officers. In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA 2006 (1) SA 461 (SCA) at par 19, Harms JA formulated
the considerations as follows:
"The decisive policy underlying the immunity of the judiciary is the
protection of its independence to enable it to adjudicate fearlessly.
Litigants (like those depending on an administrative process) are not
'entitled to a perfect process, free from innocent (ie, non-mala fide) errors.'
The threat of an action for damages would 'unduly hamper the expeditious
consideration and disposal' of litigation. In each and every case there is at
least one disgruntled litigant. Although damages and the plaintiff are
foreseeable, and although the damages are not indeterminate in any
particular case, the 'floodgate' argument (with all its holes) does find
17
application."
7.
The principle of judicial immunity is closely related to the provisions of
section 165(2) of the Constitution which provides that "(t)he courts are
independent and subject only to the Constitution and the law, which they
must apply impartially and without fear, favour or prejudice." The important
principle of judicial immunity is, however, not absolute, either in the
context of civil claims for damages or in the context of criminal liability.
Thus, in Minister of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47 (SCA) in paragraphs 55- 56 Van Heerden JA stated as
follows:
"55. Referring specifically to the magistrate's court, Chaskalson CJ [in Van
Rooyen v The State 2002 (5) SA 246 (CC)] pointed out that 'magistrates
are entitled to the protection necessary for judicial independence, even if
not in the same form as higher Courts'. 56. All this being so, however, the
provisions of s 165(2) of the Constitution compel the conclusion that the
fundamental principle of judicial independence cannot simply be equated
with a principle of immunity of judicial officers from criminal prosecutions
for all acts and/or omissions in the exercise of their judicial functions,
irrespective of the circumstances of the individual case. It goes almost
without saying that the criminal prosecution of judicial officers for such
acts and/or omissions will and must remain an extraordinary and
exceptional step ... Due regard being had to the fundamental principle of
18
judicial independence, but also to the related principle that judicial officers
are subject to the Constitution and the law and thus cannot be completely
immune from criminal prosecution, in appropriate cases, for their acts
and/or omissions in the exercise of their judicial functions.”
8.
Accordingly, the principle has long been established in the common law
that a judicial officer forfeits his or her immunity when such officer's
conduct was malicious or in bad faith. (See eg Penrice v Dickinson 1945
AD 6 at 14-15; Moeketsi v Minister van Justisie 1988 (4) SA 707 (T) at
713G and 714C; Claassen v Minister of Justice and Constitutional
Development 2010 (6) SA 399 (WCC) at par 22-23.) Such an approach
is in my view fully compliant with the demands of the constitutional state
and the specific provisions of the Constitution referred to above. Since the
existence of malice or bad faith is not an issue which can be observed in
the abstract, it is by necessity an issue which must be determined by
drawing an inference from established factual circumstances. In the
absence of rebutting evidence or a plausible explanation by the magistrate
in question, such an inference is justifiable and the most probable and
most plausible inference which can be drawn from the testimony of the
plaintiffs regarding the conduct of the magistrate.
There clearly was no factual or evidential basis for the formulation of the charge
of armed robbery against the plaintiffs before the prosecutors or before the
magistrate. The alleged theft of the portable toilet was not remotely causally
linked to the charges of pointing of a firearm and assault. The alleged theft of the
portable toilet took place at a completely different location and on a completely
different occasion. (It is difficult to understand how a charge of theft of the
portable toilet could have been laid against the first plaintiff as he was not
19
remotely involved in the portable toilet issue at all, but that is another matter.)
The comment of the magistrate that the type of conduct as she apparently
suspected the plaintiffs were guilty of “can no longer be tolerated”, suggests, on a
balance of probabilities and in the absence of rebutting evidence, that the
magistrate was advancing a personal agenda which was not disclosed to the
plaintiffs and which was intended to teach the plaintiffs a lesson, irrespective of
whether they were legally and procedurally entitled to be released on bail.
I am accordingly of the view that the testimony of the plaintiffs established the
prima facie impression that the magistrate interfered maliciously and intentionally
in the erroneous formulation of the charge of armed robbery against the plaintiffs.
This testimony casted an onus of rebuttal on the magistrate and on the second
defendant in his capacity as the employer of the magistrate. In the absence of
such rebutting evidence in the form of contradictory testimony or a plausible
explanation by the magistrate, the evidence of the plaintiffs constitutes grounds
for a finding that the magistrate acted maliciously. It follows that the continued
detention of the plaintiffs from their first appearance in the magistrate's court on
26 May 2004 until their eventual release on bail on 1 June 2004, on the basis
that there were serious charges of armed robbery against them, was unjustifiable
and must be regarded as unlawful. The second defendant must be held liable for
the damages suffered by the plaintiffs as a result thereof.
Ms Baloyi, who appeared on behalf of the first, second and fourth defendants,
referred me to the judgement in Minister of Justice and Constitutional
Development v Moleko [2008] 3 All SA 47 (SCA) at par 18, where it was held that
the Minister of Justice and Constitutional development cannot be responsible for
decisions by the National Prosecuting Authority on the grounds that the
prosecuting authority is accountable to Parliament, including decisions regarding
the institution of prosecutions in terms of section 35(1) of the National
Prosecuting Authority Act, 32 of 1998. Ms Baloyi argued that, by the same
reasoning, the Minister of Justice cannot be responsible for the conduct of
magistrates acting within the course and scope of their employment.
The question who magistrates are employed by is a legal issue, governed by
statute. In my view the legal position of employees of the National Prosecuting
Authority and that of magistrates are not identical. Section 9(1)(a) of the
Magistrate's Courts Act, 32 of 1944 provides expressly that magistrates are
appointed by the Minister of Justice. The Magistrates Act, 90 of 1993, establishes
a Magistrate's Commission which inter alia ensures that the appointment of
magistrates by the Minister takes place without favour or prejudice and advises
the Minister thereon. In terms of section 10 of the Magistrate's Act, the Minister of
Justice appoints magistrates after consultation with the Magistrate's Commission.
Although magistrates function independently and impartially (see Van Rooyen v
The State 2002 (5) SA 246 (CC)), that does not detract from the fact that they are
appointed by and employed by the Minister of Justice. To the contrary, the
statutory framework within which magistrates is appointed by the Minister of
Justice ensures that they are appointed on the basis that they function
independently and impartially. In carrying out their functions independently and
impartially, they act within the course and scope of their appointment and in
accordance with the basis on which they were appointed. It follows that the
Minister of Justice remains in my view, as in the past, vicariously liable for the
20
conduct of magistrates acting with in the course and scope of their employment.
As indicated above, it was admitted in both pleas that the magistrate had acted
within the course and scope of her employment as a judicial official.
It follows that the second defendant must be held liable for the unlawful conduct
of the magistrate, as a result of which conduct the plaintiffs remained in detention
until 1 June 2004, when bail was granted to them on an unopposed basis.
The Claim against the Minister of Safety and Security and Inspector Phoshoko
9.
Inspector Phoshoko (who was in the mean time promoted to the rank of
warrant officer) testified that the complaints against the plaintiffs were
allocated to him for investigation. After warning statements were taken
during December 2003 from the plaintiffs, the case docket was forwarded
from the detective offices to the senior public prosecutor of Alberton
Magistrate's Court for decision. Warrants for the arrest of the plaintiffs on
charges of pointing of a firearm and assault were issued and returned to
Inspector Phoshoko. The warrants appear at pages 157 and 158 of exhibit
“C”. Inspector Phoshoko thereupon proceeded with the arrest of the
plaintiffs on 26 May 2004 for pointing of a firearm under the circumstances
dealt with above on the basis of the warrant.
Whilst the administration of justice necessitates that the police and judicial
officials exercise their extensive powers to arrest suspected criminals, and whilst
the courts should guard against improper interference in the manner in which
these duties are performed, the courts also have a duty, both under the principles
of the common law and in terms of the values enshrined in sections 12 and 35
of the Constitution, to preserve the rights of citizens to personal liberty against
undue infringement. As a rule, every interference with physical liberty is wrongful
in the absence of a ground of justification. A warrant in the proper form and
issued by a duly authorised official would provide the arresting officer generally
with a complete defence. Liability for wrongful arrest is strict and fault is not a
requirement for liability. (See e.g. Relyant Trading (Pty) Ltd v Shongwe [2007] 1
All SA 375 (SCA); Prinsloo v Newman 1975 (1) SA 4 81 (A); Neethling, Potgieter,
Visser (4th ed) Law of Delict 335.)
The provisions of the Constitution are also of material and fundamental
21
significance in this regard. Section 12(1)(a) provides that "(e)veryone has the
right to freedom and security of the person, which includes the right not to be
deprived of freedom arbitrarily or without just cause." Section 35 (1)(f) provides
that "(e)veryone who is arrested for allegedly committing an offence has the right
to be released from detention if the interests of justice permit, subject to
reasonable conditions.” In Zealand v Minister of Justice and Constitutional
Development 2008 (4) SA 458 (CC) at par 52-53 Langa CJ stated as follows:
"[52] I can think of no reason why an unjustifiable breach of s 12(1)(a) of
the Constitution should not be sufficient to establish unlawfulness for the
purposes of the applicant's delictual action of unlawful or wrongful
detention. Moreover, South Africa also bears an international obligation in
this regard in terms of article 9(5) of the ICCPR* which provides that
'anyone who has been the victim of unlawful arrest or detention shall have
an unenforceable right to compensation.' [53] I accordingly hold that the
breach of s 12(1)(a) is sufficient, in the circumstances of this case, to
render the applicant's detention unlawful for the purposes of a delictual
claim for damages. That will be the most effective way to vindicate the
applicant's constitutional right. I expect that to be the case in most
instances of unlawful detention.” (*In footnote 19 of the judgement it is
stated that South Africa ratified the International Covenant on Civil and
Political Rights on 10 March 1999.)
10.
In Le Roux v Minister of Safety and Security 2009 (4) SA 491 (N) par 30,
the full bench of the Natal Provincial Division (Msimang J and Madondo J)
held that "(t)here is a duty on our courts to preserve the right to liberty
against infringement. Unlawful arrest and detention constitutes serious
inroads into the right to liberty and freedom." In paragraphs 35-36 the
22
Court stated as follows: "(35) If an accused is not a danger to society, will
stand trial, will not harm others or be harmed by them, and may be able
and keen to disprove the allegations against him or her, an arrest will
ordinarily not be an appropriate way of ensuring the accused's presence in
court. … (36) At 187d-e and 187g of the Louw case the Court held that the
police are obliged to consider, in each case when a charge has been laid
for which a suspect might be arrested, whether there are less invasive
options to bring the suspect before the court than an immediate detention
of the person concerned. If there is no apprehension that the suspect will
abscond, or fail to appear in court if a warrant of arrest is first obtained for
his/her arrest, or notice or summons to appear in court is obtained, then it
is critically untenable to exercise the power to arrest. Exercising the arrest
against a suspect who is perfectly willing to come to court on warning, on
notice or summons renders the arrest ultra vires.”
Although the foregoing statements were made in the context of an arrest without
a warrant, the values and policy considerations reflected therein and the
demands of the constitutional state must also be taken into account in the
present matter, bearing in mind that ordinarily an arrest in terms of a valid
warrant of arrest will provide the arresting officer with a complete defence.
No challenge to the validity of the warrants was raised in the pleadings. The
attempt on behalf of the plaintiffs to rely on such alleged irregularity for the first
time in argument at the conclusion of the matter cannot be countenanced. Mr
Kemp, who appeared on behalf of the plaintiffs, argued that the law should be
developed in accordance with the values of the Constitution to hold to that a
warrant is not a complete defence where the investigating officer knew or should
have known that an arrest was not necessary as a means of ensuring the
attendance of accused persons in court. He also contended that the existing
authority do not address the situation where the arresting officer and the officer
requesting the issue of the warrant are the same person.
When the relevant background circumstances, known to Inspector Phoshoko, are
considered, it is in my view evident that it was not necessary to arrest and detain
the plaintiffs in order to ensure their attendance in court. There were no grounds
to suspect that the plaintiffs would not stand trial. Both plaintiffs were former
23
high-ranking police officers and remained involved in the battle against crime
after they became employed in the private sector. Inspector Phoshoko had
worked with them in the past in their capacity as investigators of criminal
activities. Both had permanent employment, responsible positions as employees
and fixed residential addresses. Inspector Phoshoko was aware of the history of
criminal charges preferred by the second plaintiff and the third defendant against
one another and knew that their disputes were essentially of a civil nature. Both
plaintiffs voluntarily presented themselves at the police station on 26 May 2004
after they were telephonically requested to do so the previous day by the
commanding officer of the Alberton Police Station. There certainly were less
invasive methods of ensuring the plaintiffs' attendance in court other than arrest
and detention.
There can be no doubt in the present matter that Inspector Phoshoko must have
realised subjectively and should have realised objectively that the arrest of the
plaintiffs was not necessary as a means of ensuring their attendance in court.
Whilst there is something to be said for Mr Kemp’s argument in this regard, it is
not necessary to decide the matter on this basis, in view of the approach I take in
this matter. In any event, sitting as a single judge, I am bound to the high
authority referred to above.
The judgement in Van Rensburg v City Council of Johannesburg 2009 (2) SA
101 (W) at 110C confirms that, whilst the initial arrest of a suspect in terms of a
warrant of arrest may be lawful, the continued detention of a suspect may
nevertheless be unlawful. Horwitz AJ recognised that the issue of a warrant of
arrest is a complete defence to a claim for wrongful arrest and that, in the
ordinary course of events, would render the ensuing imprisonment lawful. (At
106H.) At 107H the court stated as follows:
"When a magistrate issued a warrant for the arrest of a person, it is
not the function of the arresting officer to sit on appeal, as it were,
to decide whether the magistrate was correct or not in issuing a
warrant. As I have already pointed out, if a police officer executes a
warrant, he or she cannot be faulted for having done so and if it
later transpires that the warrant should in the first place not have
been issued, that is not something that can be laid at the door of
the police officer. If, therefore, it later transpires that there was
insufficient reason to justify the issue of the warrant, that, per se,
would not ground and action for unlawful arrest and imprisonment
against the police officer or his or her employer."
24
11.
The fact that the initial arrest was lawful in terms of a warrant, does not
necessarily mean that the continued detention of a suspect will also in all
circumstances be lawful. In Van Rensburg v City Council of Johannesburg
(above) the court found that the provisions of section 55 of the Criminal
Procedure Act took the case outside of the scope of the general rule and
found that the arresting officer did not comply with the duties imposed on
him by the provisions of that section. Similarly, it must be investigated in
the current matter whether there were any remaining duties on the
arresting and/or investigating police officer once the arrest authorised by
the warrant had been executed. There remain in my view a positive duty
on the police officer involved to prevent, as far as reasonably possible
within the scope of his or her duties as a police officer, unnecessary
deprivation of personal freedom of accused persons as a result of the
criminal procedure which had been set in motion. There was accordingly a
duty on Inspector Phoshoko to be co-operative as opposed to being
obstructive and to take reasonable measures in order to attend court on
28 May 2004 to enable the plaintiffs to proceed with their bail application
at the earliest opportunity.
Such a positive duty of care on the police officers involved in criminal
proceedings is not only, in my view, based on the convictions of the community
(See Minister van Polisie v Ewels 1975 (3) SA 347 (A)) but also informed by the
values enshrined in sections 12(1) and 35(1) of the Constitution. The
unlawfulness of Inspector Phoshoko’s conduct is not merely to be found in the
fact that he failed to attend at the bail hearing arranged for 28 May 2004, but in
the fact that he positively refused to do so when requested by Mr Culhane and
the senior prosecutor, which conduct caused the bail hearing to be aborted. The
refusal of Inspector Phoshoko to attend at the bail hearing without any
acceptable or reasonable explanation for such refusal also takes the current
matter outside the scope of the general rule referred to above, namely that
25
ordinarily a warrant of arrest would provide the arresting officer with a complete
defence.
In light of the fact that bail was eventually granted to the plaintiffs on an
unopposed basis on 1 June 2004 and in light of Mr Culhane's testimony that it
was agreed with the senior prosecutor that bail was not to be opposed on 28 May
2004, the probabilities are strong that the plaintiffs would have been released on
bail on 28 May 2004 already, had Inspector Phoshoko bothered to attend the
hearing when requested to do so by Mr Culhane and by the senior prosecutor.
The evidence of attorney Culhane of the events when Inspector Phoshoko
refused to attend the bail hearing when he was telephonically requested to do so
must be preferred above that of Inspector Phoshoko for a number of reasons.
When Mr Culhane's testimony about the conversation with Inspector Phoshoko
was challenged, he obtained a printout of his cell phone account, which by
agreement between the parties was handed up as an exhibit. Attorney Culhane’s
cell phone account confirmed that calls were made to Inspector's Phoshoko's cell
phone number on 27 May 2004 and 28 May 2004 respectively. These records
were not challenged as incorrect by or on behalf of inspector Phoshoko and
provide objective substantiation of Mr Culhane’s version. Inspector Phoshoko
testified, however, that he did not receive the messages left by attorney Culhane
for him. The cell phone account record reflects one call by Mr Culhane to
Inspector Phoshoko's cell phone number on 27 May 2004 and two further calls
of short duration on 28 May 2004, the one having lasted 4 seconds and the other
20 seconds. It would have been possible for both Mr Culhane and the senior
prosecutor, Mr Molefe, to have had a short conversation with Inspector Phoshoko
within the time span of 20 seconds. As inspector Phoshoko would have known
exactly what the matter was about, no background explanations would have
been necessary in order for Inspector Phoshoko to convey his refusal to attend at
court. Mr Culhane's version is also confirmed by the contemporaneous file notes
made by himself on 28 May 2004 and which were handed up as an exhibit, to the
following effect: "12h40 TC Insp Phoshoko while in SPP’ office – won’t come to
Court. I gave phone to SPP he spoke to Phoshoko – nothing came of it.” It is
also improbable that Inspector Phoshoko would not have received the messages
left for him on his cell phone over the course of 2 days. He offered no explanation
as to why he would not have retrieved the messages which were left on his cell
phone.
Further contemporaneous corroboration for the version of attorney Culhane can
be found in the notes made by magistrate Mosese in the court file on 28 May
2004 (exhibit "B", page 7"), which is to the effect that she was informed by
attorney Culhane that the investigating officer informed the court that he
(Inspector Phoshoko) was busy and wouldn't come to court. She also noted
attorney Culhane's complaint that he and the accused were treated shabbily. I
find it highly improbable that attorney Culhane would have fabricated such
evidence at the time when they were seeking to have the plaintiffs released on
bail. Furthermore, the senior prosecutor, Mr Molefe, who was involved according
to the testimony of Mr Culhane, was not called to testify by the first or the fourth
defendant regarding the events of 28 May 2004. Since adverse allegations were
made in the pleadings regarding the involvement of the state prosecutor in the
continued detention of the plaintiffs, it could not reasonably have been expected
26
of the plaintiffs to call the senior public prosecutor as a witness.
Inspector Phoshoko's obstructive refusal to attend at court on 28 May 2004 was
not only wilful but also unlawful. It contributed causally to the continued detention
of the plaintiffs and establishes the liability of the fourth and the first defendant for
the continued detention of the plaintiffs.
Quantification
12.
The appropriate approach to quantification of claims for unlawful arrest
and detention was dealt with in Minister of Safety and Security v Seymour
2006 (6) SA 320 (SCA), par 19. In that matter, an amount of R90,000 was
awarded to a 63-year old plaintiff who was unlawfully detained for five
days and who spent most of his detention, after the first 24 hours, in
hospital. Reference can also be made to the judgement in Van Rensburg
v City of Johannesburg 2009 (2) SA 101 (W) at 110, where an amount of
R75,000, together with costs on a punitive scale, was awarded to a 74
year old retired accountant who was unlawfully detained in a police cell by
the Metro Police for an afternoon consequent upon his arrest at a
roadblock.
Mr Mnyandu, on behalf of the third defendant, argued (in the alternative) that, in
light of the fact that the third defendant was only responsible for the first few
hours of the plaintiffs' detention, he should be held liable for damages in the total
amount of R10,000 (ten thousand Rand) in respect of both plaintiffs. In view of
the history of the matter and the peculiar circumstances of the matter as dealt
with above, I am inclined to agree with this contention. In light of the quantum
which has been established against the third defendant and again in light of the
history of the matter, I am of the view that it would be appropriate to award costs
against the third defendant on the Magistrate's Court scale.
As far as the first, second and fourth defendants are concerned, they are jointly
and severally liable for the continued unlawful detention of the plaintiffs until 1
June 2004. I do not consider it practical to make a distinction between the award
against the first, second and fourth defendants, nor was I requested by any of the
defendants to do so. The humiliation, the circumstances the plaintiffs were
exposed to and the harmful consequences they experienced as a result of their
27
unlawful detention, as dealt with above, would have occurred by and large in the
same measure, irrespective of which defendant is held liable individually. I was
also not requested on behalf of any of the first, second and fourth defendants to
differentiate between the amount awarded against the various defendants.
Neither of the plaintiffs substantiated a claim for special damages.
The plaintiffs were former senior police officers. At the time of the detention, they
were involved in the battle against crime as risk managers and investigators.
Their continued detention with hardened criminals was not only humiliating in the
extreme but exposed them to a potentially life threatening situation. They had to
be continually on their guard for 24 hours a day during the entire period of their
detention. For most of the time of their incarceration, they had to spend 22 hours
each day in a small and crowded cell. In view of the personal circumstances of
the plaintiffs and the circumstances under which they were detained, their
unlawful detention justifies a substantial damages award. Taking into account the
guidelines laid down in the judgements referred to above, I award an amount of
R250,000 (two hundred and fifty thousand Rand), with costs, to each of the
plaintiffs in respect of the damages suffered by them in respect of their continued
detention, for which the first, second and fourth defendants are to be held liable
jointly and severally.
Conclusion
I make the following order:
1.
The first, second and fourth defendants are directed to make payment,
jointly and severally, to the first plaintiff in the amount of R250,000.
The first, second and fourth defendants are directed to make payment, jointly and
severally, to the second plaintiff in the amount of R250,000.
The first, second and fourth defendants are directed to pay interest, jointly and
severally, on the sums referred to in paragraphs 1 and 2 of the order above at
the rate of 15,5 per cent per annum from the date of demand to the date of final
payment.
The third defendant is directed to make payment of an amount of R5000.00 to
the first plaintiff.
The third defendant is directed to make payment of an amount of R5000.00 to
the second plaintiff.
The third defendant is directed to pay interest on the sums referred to in
paragraphs 4 and 5 of the order above at the rate of 15,5 per cent per annum
from the date of demand to the date of final payment.
The defendants are directed to pay the costs of each of the plaintiffs jointly and
severally, subject to the proviso that the liability for costs of the third defendant is
to be determined on the costs taxable on the Magistrate's Court scale.
28
____________________________
LJ VAN DER MERWE
ACTING JUDGE OF THE HIGH COURT
25 January 2011.