Mdhlovu v The National Director of Public Prosecutions

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: P Sieberhagen AJ
• Judgment Date: 24 May 2022
• Citation: 2022 JDR 1450 (MN)
• Docket Number: 677/2018
• Court: Mpumalanga Division (Main Seat)

Sieberhagen AJ:

[1]

The plaintiff, Mr Sijoyi Robert Mdhlovu, a regional court prosecutor for the Nelspruit (Mbombela), Mpumalanga region, instituted an action for damages in this court against the National Director of Public Prosecutions ("NDPP") based on his alleged malicious prosecution by the defendant acting, as a common cause fact, through its employees who acted within the course and scope of their employment with the defendant.

[2]

By agreement between the parties, pursuant to an application in terms of Uniform Rule of Court 33(4) at the commencement of the trial, the trial before me was confined to the merits of the claim, with the question of quantum standing over for later determination.

THE PLEADINGS:

[3]

The plaintiff's particulars of claim reveal inattentiveness, but it can be gleaned therefrom, as amplified by the submissions by Mr Meintjies on behalf of the plaintiff when I at the commencement of the trial during the parties' application for a separation of issues (in terms of Uniform Rule of Court 33(4)) sought clarity thereon, that the plaintiff's claim is based on the actio iniuriarum. [1] In the particulars of plaintiff's claim the plaintiff claims R1 800 000.00 as follows: [2] -

"9.

As a result of the malicious prosecution, plaintiff suffered damages as follows:

9.1

R250 000.00 - being costs for future loss of income.

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9.2

R550 000.00 - loss of promotion and/or advancement prospect.

9.3

R1 000 000.00 for contemelia, [3] good name, reputation, publication in the media and emotional trauma, suffered as a result of the unlawful prosecution.

10.

Defendant was unduly influenced to institute prosecution against the plaintiff, in so doing acting with an animus injuriandi and did not act upon a proper consideration of all the evidence to sustain the charges proffered against the plaintiff." (sic)

The actio iniuriarum is a remedy for the compensation of damages caused to the person of a plaintiff and the concomitant impairment of his/her dignitas. It does not extend to compensation for future loss of income (the basis whereof is to be found in the actio legis aquiliae) [4] or "publication in the media" (which will properly resort under an action for defamation, under the actio iniuriarum, but there is only one action in the hands of the plaintiff that the injury committed can give rise to [5] ), as claimed by the plaintiff, but it need not be considered for reasons that will become apparent.

[4]

The plea, equally perfunctory, displays a misconception of the law [6] in that the

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defendant inter alia pleaded: [7] -

"5.3.2

The defendant avers that he lawfully set the law in motion against the plaintiff and there was sufficient prima facie evidence of the commission of offences by the plaintiff in the docket and the prosecutor acted reasonably with probable cause in proffering criminal charges against the plaintiffs in the circumstances.

5.3.3

The defendant had an honest belief upon deciding to prosecute that the plaintiff was guilty of the offences that he had been charged with." [8] (sic)

THE ISSUES:

[5]

In order to succeed, on the merits, with a claim for malicious prosecution, a plaintiff must prove: [9] -

[i] that the defendant set the law in motion, i.e. instigated or instituted the proceedings;

[ii] that the defendant acted without reasonable and probable cause;

[iii] that the defendant acted with "malice" or animus iniuriandi; and

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[iv] that the prosecution has failed.

[6]

The facts in this matter are common cause and, on the pleadings and the evidence, what were in issue before me are whether: -

[i] the defendant acted with reasonable and probable cause; and

[ii] the defendant acted with "malice" (or animo iniuriandi).

In this case, it was not in dispute that: -

[a]

the defendant set the law in motion (instigated the prosecution of the plaintiff); and

[b]

the defendant instigated the prosecution against the plaintiff on the alleged basis that "… there was sufficient prima facie evidence of the commission of offences by the plaintiff in the docket and the Prosecutor acted reasonably with probable cause in proffering criminal charges against the plaintiffs in the circumstances"; [10]

[c]

the prosecution has failed (the plaintiff was discharged on all the charges against him, on 30 August 2017, in terms of section 174 of the Criminal Procedure Act [11] at his criminal trial which commenced on 29 August 2017 in the Nelspruit Regional Court). [12]

THE FACTS:

[7]

The plaintiff, Mr Mdhlovu, who bore the onus, testified as a sole witness, and on behalf of the defendant testified Sergeant B Nkambule [13] and the Deputy Director

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of Public Prosecution, Mpumalanga ("DDPP"), [14] Adv Moonsamy. There is no need to, and I do not, make any credibility findings in respect of these witnesses.

[8]

Moreover, the proven facts are either common cause, or not in dispute. Except for the facts that I find relevant from this evidence, and where necessary to evaluate the evidence, I will not deal with the evidence of each witness in detail.

[9]

I will, for the sake of continuity and chronological order, [15] deal with the facts in accordance with its different stages. The first dealing with the facts pertaining to the events that gave rise to the charging of the plaintiff, the second relating to the steps taken in the investigation of the charge laid by the defendant against the plaintiff, the third the decision to proceed with prosecution against the plaintiff and, the fourth, the failure of the prosecution.

FACTS AND CIRCUMSTANCES THAT LED TO THE CHARGE:

[10]

The plaintiff, a regional court prosecutor with almost 26 years' experience, on or about 12 June 2015 dealt with, inter alia, two police case dockets investigated by the investigating officer, Sergeant Nkambule, of the specialised Trio Unit, Nelspruit, relating to serious crimes involving inter alia armed robbery, a firearm and attempted murder (in four, respective, "linked-cases").

[11]

The plaintiff testified that: -

[11.1]

He was a regional court prosecutor in Nelspruit with almost 26 years' experience, when he received two case dockets from the South African Police Services (SAPS);

[11.2]

In the course of his duties as a prosecutor he, during the morning of

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12 June 2015, still in his office, pointed out to the investigating officer, Sergeant Nkambule, that the matter, under CAS246/05/15, was not trial ready for reason that the "chain evidence had been broken" in relation to the identification of the firearm that linked the four, respective, cases, and after Sergeant Nkambule has left his office, he later during the day in court withdrew the charges in the matter;

[11.3]

He was, at the time, of the view that the matter was not trial ready due to insurmountable contradictions in the facts caused by the lack of proper identification of the firearm by the forensic investigation department in Pretoria of the SAPS;

[11.4]

It became apparent to him that Sergeant Nkambule was not satisfied with his action and laid a complaint against him for alleged breach of the "agreement" that they reached earlier that morning;

[11.5]

He was, as a prosecutor, mandated, to take decisions in his discretion for the management of the cases that he put before court;

[11.6]

Though there was no duty upon him to consult anyone before withdrawing a matter, he did discuss these matters with the control prosecutor, Mr David Mashego, before withdrawing the matter;

[11.7]

He was not aware of any unwritten rule of practice in Mpumalanga that in matters of a serious nature the prosecutor must first discuss the matter with the senior prosecutor before withdrawing it, as suggested by Adv Moonsamy and exhibit "B" (a letter wherein the senior prosecutor, Nelspruit, Ms K M Mashapa, confirmed that she did not grant the plaintiff permission to withdraw the matter in certain case numbers Nelspruit

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CAS29/07/2015 & Nelspruit CAS30/07/2015); [16]

[11.8]

Later on, an attorney and manager directed to him by the Deputy Director of Public Prosecutions' ("DDPP") office, approached him to make a representation before he would be charged criminally. He elected not to make any representations as in his view he had done nothing wrong;

[11.9]

More than a year later, he was arrested at his office on 26 October 2016, taken to the Nelspruit police station where he was charged, brought before court where he was granted bail, and all of that occurred in the presence of his colleagues and other personnel working in the same office. He felt humiliated by this arrest and being brought to court whilst in custody;

[11.10]

On 29 August 2007 he appeared for his trial wherein he was on the 30th of August 2017 found not guilty and discharged in terms of section 174 of the Criminal Procedure Act; [17]

[11.11]

In his view his prosecution was malicious, which caused him discomfort and humiliation at his work for having to "… look behind his back …". He, further, experienced tension and a palpable atmosphere at work causing him to eventually request to be transferred to Nkomazi Court for colleagues were viewing him differently at Nelspruit where he was prosecuted in the same court wherein he acted as prosecutor;

[11.12]

When he withdrew the charges, he did so in terms of the prosecutor's policy manual [18] and took decisions, as he was required to do, within his

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discretion. He had no agreement or arrangement with the investigating officer in the matter, could not be influenced by the views of the investigating officer before independently taking decisions on the merits appearing from case...