Nompetsheni v Minister of Police and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cengani-Mbakaza AJ
• Judgment Date: 18 July 2023
• Citation: 2023 JDR 2758 (ECM)
• Docket Number: 2094/2021
• Court: Eastern Cape Division

Cengani-Mbakaza AJ:

Introduction

[1]

The Plaintiff issued a combined summons against all Defendants, for damages arising from an unlawful arrest and detention by a member of the South African Police Service. According to the Plaintiff, the claim for damages is based on delict. Consequently, the Plaintiff claims payment for the following damages:

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(a)

A sum of R5 000 000.00 for unlawful arrest and detention, impairment of dignity, loss of freedom, deprivation of his movement, pain, suffering and psychological trauma.

(b)

The Plaintiff seeks to have an amount of R800 000.00, for loss of income, from the first, second and third Defendants, jointly and severally, the one paying each other to be absolved.

(c)

Lastly, the Plaintiff demands a payment of R5 000 000.00 for malicious prosecution from the first, second and third Defendants, jointly and severally, the one paying each other to be absolved.

[2]

At the close of the Plaintiff’s case, the Defendants brought an application for absolution from the instance in terms of Rule 39 (6) of the Uniform Rules of Court. In this judgment, I consider it necessary to give a blow-by-blow account of the events that culminated into this application for absolution from the instance.

The Pleadings

[3]

In respect of claim A [1] , the Plaintiff alleges that on or around 11 August 2019, at Mtyu Administrative Area in Ngqeleni, the first Defendant unreasonably, unlawfully and without a warrant, arrested him [the Plaintiff]. It is common cause that the Plaintiff’s claim is premised on vicarious liability. It is specifically averred that the wrongful acts were committed by the employees of the first Defendant during the course of their employment and whilst in execution of his duties.

[4]

As far as claim B [2] is concerned, the Plaintiff asserts that the Defendants, or one or more of them, knew or anticipated that their conduct would prevent him from generating advantageous income when they committed the acts of unlawful arrest and detention and further prosecution against him. The Plaintiff further asserts that since the time of his arrest, he has experienced financial loss and loss of income, because

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of the reputational damage, he will likely continue to experience significant financial loss in the near future.

[5]

In relation to claim C [3] , the Plaintiff avers that the prosecutor instigated criminal proceedings against him without reasonable and/or probable cause and in doing so acted with malice or animo iniurandi.

[6]

On 11 November 2021, the Defendants filed a plea and made a bold denial of events as pleaded. This necessitated the Defendants to file an amended plea. In the amended plea the Defendants admit that the Plaintiff was arrested without a warrant. In amplification thereto, the 1st Defendant avers that police officers opened a case docket to expedite an arrest emanating from rape charges of a nine-year-old girl, and that the offence is the one mentioned in Schedule 1. It is further pleaded that the arrest was effected in accordance with the provisions of Section 40 (1) (b) of the Criminal Procedure Act. [4]

[7]

The Defendants further deny liability for damages arising from loss of income due to reputational damage against the Plaintiff.

[8]

In respect of Claim C, the Defendants specifically plead that the prosecutor continued to pursue the prosecution of the Plaintiff based on the statements made by the state witness. In amplification, the merits pleaded are identical to those pleaded in the first claim.

[9]

In a pre-trial conference held on 11 May 2022, the parties agreed that the Plaintiff bears a duty to begin, and each party bear the onus of proof on such aspects where the onus lies with them. [5] The parties further agreed that there will be no need for separation between the merits and quantum. The trial proceeded on the said basis.

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Plaintiff’s case

[10]

Prior to his arrest, the Plaintiff, a general labourer, was employed by Xelisile Construction Company, to repair water pipes. The Plaintiff’s salary was R4700, 00 per month.

[11]

On 11 August 2019, two police officers arrived at his home. He was instructed to go to a police vehicle. The police drove with him and two minor relatives of his, by the names of S [. . .] and P [. . .] (‘the two minor children’) to Ntlaza Hospital. Upon their arrival at Ntlaza hospital, the two minor children and one police officer entered the hospital grounds whilst he was left with one police officer in the car.

[12]

A police officer informed him that he was a subject of a rape charge. He categorically denied the allegation. They were then taken home.

[13]

On the following day, an investigating officer by the name of Qolomashe took him to the police station. From the police station he was taken to Wellington prison. At the prison, two buccal swabs were taken from him.

[14]

Although he could not remember his first appearance in court, he was however certain that he occasionally attended court proceedings. During his appearances in court, the Magistrate informed him of his right to apply for bail but he relinquished his right on several occasions.

[15]

The Plaintiff described his incarceration in prison as appalling. According to him he was kept in a cramped cell that could hold no more than seventy-four inmates. He had a fight with another inmate that left him with a broken jaw. He was visibly upset when he testified about his mother who passed away while he was in prison. The Plaintiff claimed that he was never told how she died.

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Cross-examination

[16]

During cross examination, the following facts were never placed in dispute, that:

•

the victim is the Plaintiff’s niece.

•

the alleged child victim positively identified the Plaintiff as the person who raped her.

•

the two minor children made statements which implicate the Plaintiff to the commission of the offence.

•

the victim was allegedly raped on 11 August 2019.

•

the doctor who examined the victim on 12 August 2019, noted bruising in the vagina, a bleeding hymen and blood stains in the underwear.

[17]

In addition, Plaintiff made various crucial concessions:

•

he elected not to bring a bail application.

•

the victim’s statement reveals that he raped her whilst they were at the forest to collect livestock.

•

he had gone to the forest to retrieve livestock but denied being in the presence of the victim or that he sexually assaulted her.

•

given the evidence implicating him as a perpetrator of the crime, his arrest and detention were justified.

•

considering the nature of the case and the evidence against him, the State was justified to prosecute him.

•

his criminal case is still pending at Ngqeleni Regional Court, his next date of appearance was scheduled for 23 June 2023.

[18]

With this evidence, the Plaintiff closed his case.

Absolution from instance

[19]

Following the conclusion of the Plaintiff’s case, the Defendants’ counsel informed the court of his preparedness to request the dismissal of the Plaintiff’s

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claims. [6] The Plaintiff’s counsel, on the other hand, sought an indulgence to prepare and address the court at a later instance. Both parties were amenable to submitting written heads of argument and made an undertaking that there would be no need for further addresses thereafter.

[20]

The law relating to absolution from the instance is well settled. The test for absolution to be applied by a trial court at the end of a Plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel [7] in these terms:

“. . . (W) hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.”

[21]

Sufficient evidence is sometimes referred to as ‘prima facie evidence’, ‘prima facie proof’ or a ‘prima facie case’. Prima facie evidence is evidence which...