Senti v Minister of Police and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Adams J
• Judgment Date: 12 September 2023
• Citation: 2023 JDR 3425 (GJ)
• Docket Number: 36733/2019
• Court: Gauteng Local Division, Johannesburg

Adams J:

[1]

During August 2015, the complainant in a criminal case (‘the complainant’), whose date of birth is 13 February 2006 and who was nine years old at the time, was raped at her place of residence in Vosloorus. Approximately one week later she was again raped by the same person. Later that year, during or about September 2015, the complainant told her fourteen-year-old sister what had happened to her and she explained that she had been raped by the plaintiff, who told her not to tell anyone about the assault. The sister, in turn, told their mother during December 2015 of the complainant’s ordeal and their mother strangely opted to do nothing about what had been reported to her by her daughters.

[2]

Things came to a head during January 2016, when a neighbour, on her return from her December holidays, noticed that the children – namely the complainant, her sister and two other younger siblings – were all by themselves at their place of residence, with no adult supervision. At that time, these children were living with an aunt, her husband and the plaintiff, and the children were sleeping on makeshift beds in the dining room of the house, which was owned by

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Adams J

the aunt. The neighbour, who deposed to an affidavit on 24 February 2016, which formed the basis of the arrest and the subsequent detention of the plaintiff, enquired from the children as to why they were all by themselves and why they were not at school. The response from the eldest sister was to the effect that the complainant had been raped by the plaintiff. The neighbour thereupon took the girls to a medical doctor, who confirmed that the complainant had in fact been raped. On making specific enquiries from the complainant after their visit to the doctor as to who had raped her, the neighbour was advised by the complainant that the plaintiff is the one who raped her.

[3]

This triggered the laying of a charge of rape by the neighbour against the plaintiff with the South African Police Service. As already indicated, the neighbour deposed to an affidavit on 24 February 2016, confirming that she had been told by the eldest sister of the complainant that the latter had been raped, which was confirmed by their visit to the doctor.

[4]

In the meantime, the plaintiff had gotten word that he was being accused of the rape of the minor child and that the community was baying for his blood and threatening him with ‘mob justice’. He thereupon left the area and went to stay overnight at his sister’s place of residence in Rondebult. Early the next morning on 25 February 2016, he handed himself over to the Police and he was arrested and processed on a charge of rape of a nine-year old girl. He was refused bail and remained in detention until he was discharged in terms of s 174 of the Criminal Procedure Act [1] (‘the CPA’) and acquitted on 02 August 2019, that is for a period of about three years and seven months.

[5]

All of the aforegoing facts are common cause. Importantly, when the plaintiff was arrested by the members of the South African Police Services on 25 February 2016, they were in possession of an affidavit, confirming all of these facts, the most notable of which is that the nine-year-old complainant had by then consistently reported to no less than three persons that she had been raped by the plaintiff. It bears emphasising that by the time the plaintiff arrived at the Katlehong Police Station on Thursday, 25 February 2016, to hand himself over

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Adams J

to the police, they had at their disposal information, in the form of an affidavit by the neighbour, as well as reports from the complainant and her sister of the rape by the plaintiff, which persuasively implicated the plaintiff in this hideous crime. The rhetorical question to be asked is whether the SAPS was to ignore this information and to simply release the plaintiff without arresting him. I think not. All of this would no doubt have aroused the Police’s suspicion that the plaintiff had committed the crime of rape of a minor child.

[6]

In this action, the plaintiff claims delictual damages for unlawful arrest and detention, as well as for malicious prosecution, from the first defendant (the National Minister of Police (‘the Minister’)), and from the second defendant (the National Prosecuting Authority (‘the NPA’)). Needless to say, the plaintiff sets great store to the fact that the Palm Ridge Regional Court had discharged him in terms of s 174 of the Criminal Procedure Act, which confirms, so the plaintiff avers, that the State had no case against him and should never have arrested and prosecuted him.

[7]

The defendants deny liability for the claims of the plaintiff. Their case is that the arrest and the detention were lawful in that the plaintiff was suspected – reasonably so – of having committed the crime of rape of a minor child.

[8]

The issues to be considered in this action are therefore whether, all things considered, the arrest of the plaintiff and his subsequent detention were lawful, and whether his prosecution by the National Prosecuting Authority was malicious. Put another way, the issues to be decided in this matter is whether the arresting officers had reasonable grounds to arrest the plaintiff and whether they had reasonable grounds thereafter to detain him. Additionally, I am required to decide whether the prosecution of the plaintiff was, in the circumstances of this matter, malicious.

[9]

These issues can and should be decided, in my view, against the backdrop of those facts, which are common cause and which are set out in the paragraphs which follow. In my view, there is no need to decide any factual...