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Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO |
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Editorial note : Certain information has been redacted from this judgment in compliance with the law.
CASE NO: 936/2022
In the matter between:
THABO LENTORO Plaintiff
and
MINISTER OF POLICE 1st Defendant
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Defendant
SMIT AJ
Delivered: This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be 11 March 2025.
ORDER
Claim against the first defendant:
[i] The first defendant is ordered to pay the plaintiff an amount of R480 000.00, for his unlawful arrest and detention.
[ii] Interest on the above amount a tempora morae at the prescribed legal rate from the date of judgment.
Claim against the second defendant:
[iii] The second defendant is ordered to pay the plaintiff an amount of R200 000.00 for his malicious prosecution.
[iv] Interest on the above amount a tempora morae at the prescribed legal rate from the date of judgment.
Claim for costs:
[v] The defendants are ordered to pay the plaintiff’s costs of the action, jointly and severally, the one paying the other to be absolved, such costs to be on the High Court party-and-party scale, which costs are to include the costs of counsel on scale B.
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JUDGMENT |
SMIT AJ
Introduction:
[1] The plaintiff is Thabo Lentoro. He instituted action against the first defendant, the Minister of Police claiming damages for his arrest and detention, which he states to be unlawful. The plaintiff was arrested on 7 December 2020 and subsequently released from detention on 20 December 2020, for contravention of a final protection order against him. The second defendant is the National Director of Public Prosecutions. The plaintiff claims damages from the second defendant pursuant to his prosecution, which he alleges to have been malicious. The genesis of his prosecution being the contravention of said protection order. The events that led to the arrest, detention and prosecution of the plaintiff, calls for consideration of the circumstances surrounding the interim and final protection orders and the service thereof.
[2] The matter came before me as a defended action and evidence was produced by the (a) plaintiff personally; (b) the arresting officer, Seargent David Kgokong (‘Kgokong’), on behalf of the first defendant; and the following prosecutors, on behalf of the second defendant (c) Adv Mphaga Cavin Tjaro (‘Tjaro’) and (d) Adv Thapelo Moaba (‘Moaba’). Both merits and quantum are to be adjudicated upon.
Circumstances surrounding the protection orders:
[3] The plaintiff resides at house number […] M[1…] Street, Extension […], T[…], Rustenburg. His father Jacob Lentoro, resides with, Francinah Racel Montsho (‘Montsho’), being the girlfriend of Jacob Lentoro, at House no. […] M[2…] Street, Tlhabane. Montsho obtained an interim protection order against the plaintiff on 22 September 2020. Unbeknown to the plaintiff, as his case goes, this interim protection order was made final on 2 December 2020, which led to the plaintiff’s arrest on 7 December 2020 after he unknowingly contravened a provision thereof, by entering Montsho’s yard. These protection orders were issued out in terms of the Protection from Harassment Act, Act 17 of 2011, (‘the Harassment Act’).
[4] The plaintiff was hospitalized at Job Shimankana Tabane Provincial Hospital (‘JST Hospital’) from 21 September 2020 to 20 October 2020. The plaintiff relied on a memorandum from JST hospital, confirming the period of hospitalization. This document and the content thereof were not disputed. Kgokong, evidenced that he cannot deny or admit whether the plaintiff was so hospitalized. It is accepted that the plaintiff was hospitalized for this period. On 22 September 2020 Montsho obtained an interim protection order in terms of Section 2(1) of the Harassment Act in the Tlhabane Magistrate’s Court (‘the Magistrate’s Court’). Service of this order played a vital role during this trial. Kgokong testified that he attempted service at the residence of the plaintiff, but the plaintiff was not home. Kgokong explained that, on 23 September 2020, he phoned the plaintiff and advised of the protection order and the return date of 2 December 2020. This version was disputed by the plaintiff. Whilst the plaintiff admits that Kgokong telephonically informed him about the protection order, plaintiff maintains that he requested Kgokong to visit him in hospital and bring him the relevant documents. Plaintiff denies that he was informed of the return date. Kgokong maintained that he served the interim protection order telephonically.
[5] I cannot accept that there was proper service of the interim protection order as, firstly, paragraph 9 thereof states: “In terms of section 3(3) and 15(a) of the Protection from Harassment Act, 2011, SAPS Tlhabane, …. Who is a peace officer is hereby directed to serve the interim protection order, a copy of the application for a protection order and the record of evidence noted on the respondent in accordance with regulation 28 of the Protection from Harassment Regulations, 2013.”
Secondly, Section 3(3)(a) of the Harassment Act states: “Upon the issuing of an interim protection order the court must direct that the interim protection order be served on the respondent in the prescribed manner by the clerk of the court, sheriff or peace officer identified by the court.” The Magistrate’s Court clearly directed that a peace officer attached to SAPS Tlhabane must serve the interim protection order.
Thirdly, Regulation 28 of the Protection from Harassment Regulations, 2013 states: “(1) Service of any document in terms of the Act or these Regulations, except where the Act or regulations provide otherwise, must be effected immediately by (a) the clerk of the court by handing or presenting for handing over a certified copy of the document to the person on whom the document is to be served or by sending a certified copy of the document to that person by registered post and endorsing the original document to this effect; (b) the sheriff in terms of the provisions of the Magistrates' Courts Act, 1944 (Act 32 of 1944), and rules published in terms of section 6 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985); or (c) a peace officer in terms of the provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), relating to the service of subpoenas.”
[6] Regulation 28(4): “Where the court is satisfied that service cannot be effected in the manner prescribed by this regulation, or otherwise considers it necessary or expedient, it may make an order allowing service to be effected in a manner specified in such an order.” There was no evidence presented that the Magistrate’s Court granted an order in terms of Regulation 28(4) authorizing service via telephone. There is also no provision made for proper and effective service via telephone in the Harassment Act or Regulations.
[7] In Barker v S (A35/2022) [2023] ZAMPMBHC 55; 2024(1) SACR 666 (MM) (25 October 2023) at paragraph [12] it was stated:
“Given the importance of ensuring that a harasser ceases their harassment, but also to alert them to the risk of criminal prosecution, the Act takes care to ensure that protection orders are served. The Act provides that a court “must direct that that interim protection order be served on the respondent in the prescribed manner by the clerk of the court, sheriff or peace officer identified by the court…”
[8] Reliance had also been placed on a Sheriff’s return of service during the trial. From this return it is evident that the Sheriff was instructed by Jacob Lentoro’s attorney to serve the interim protection order. This return of service indicates that the Sheriff served: “this interim protection order (domestic violence) by affixing a copy thereof to the principal gate residence of the Respondent.” This affixing took place on 23 September 2020. Would this return of service be sufficient to establish proper service of the interim protection order? I am of the view that it falls short, in that (a) there never was any domestic violence protection order; (b) service by Sheriff was not ordered by the Magistrate’s Court; and even should such service by Sheriff be accepted, the service remains ineffective in that (c) paragraph 9 of the interim protection order requires that the following be served: (i) the interim protection order; (ii) a copy of the application for a protection order; and (iii) the record of evidence. This requirement is echoed in Section 3(3)(b) of the Harassment Act: “A copy of the application referred to in section 2 (1) and the record of any evidence noted in terms of subsection (1) must be served on the respondent together with the interim protection order in the prescribed manner.” Kgokong further testified that he was not aware of this return of service.
[9] The interim protection order had therefore not been properly served on the plaintiff.
[10] The plaintiff was again hospitalized from 14 November 2020 to 4 December 2020 and again provided proof thereof from JST Hospital. This period of hospitalization was not seriously challenged and there is no reason not to accept the plaintiff’s version. On 2 December 2020 the interim protection order was made final in the absence of the plaintiff. No evidence has been presented that this final protection order was served on the plaintiff. Kgokong acquiesced that this protection order was in fact not served on the plaintiff. The plaintiff informed that upon his discharge from hospital on 4 December 2020 he visited the police station to enquire about a possible protection order, which was sparked by the telephone call from Kgokong. At the police station, he was referred to Room 1 at the Magistrate’s Court. At Room 1, the clerk informed the plaintiff that there is no protection order against him, as there seems to be no record thereof on their computer system and register. This evidence by the plaintiff remained uncontested.
The Arrest:
[11] On 7 December 2020 the plaintiff sought to visit with his father and entered Montsho’s yard. The plaintiff explained that Montsho confronted him with instructions from Jacob Lentoro’s attorney to the effect that he is not allowed entry. She phoned the attorney, placed the call on speaker and the attorney advised that he is going to call the police. The plaintiff then exited the yard and waited for the police officers to arrive. Upon their arrival they showed the plaintiff certain documents, which he did not recognise. The officers explained that it is a protection order and asked the plaintiff whether he was ever given these documents, to which he answered in the negative. I must highlight that these police officers elected not to arrest the plaintiff and accompanied him to the Magistrate’s Court for him to obtain a copy of the protection order. The plaintiff was taken to Room 1, for assistance. The plaintiff further evidenced that between 12:00 to 13:00, and still in Room 1, he was confronted by Kgokong, who grabbed him by his belt and asked why he is not leaving his father and Montsho alone. The plaintiff was then arrested, taken to the Tlhabane police station and detained.
[12] In explaining how he affected the arrest, Kgokong evidenced that he arrived at the Magistrate’s Court, Montsho pointed out the plaintiff to him, upon which he introduced himself, reminded the plaintiff that they spoke over the phone, read the plaintiff his constitutional rights and arrested him. It presents that whilst the two police officers took the plaintiff to the Magistrate’s Court, Montsho visited the police station to report the events to Kgokong. During cross-examination Kgokong informed that when he took the decision to arrest, he had with him two documents, being the final protection order and the statement of Montsho. I am of the view that Kgokong rushed the arrest and due to the improper ‘telephonic service’ of the interim protection order and the non-service of the final protection order, Kgokong had to further investigate the purported contravention of the protection order, to ensure that the plaintiff had actual knowledge of the protection order. This undue hastiness of Kgokong is underscored by the election of the initial police officers to not affect an arrest.
[13] During Kgokong’s cross-examination he remained reliant on his ‘telephonic service’ but agreed that the interim protection order made no provision for such service. He conceded that when he arrested the plaintiff, he had no proof that the final protection order had been served. Kgokong agreed that the final protection order was in fact not served on the plaintiff. It was further conceded that Montsho never provided a warrant of arrest to Kgokong. I pause on this admission, to highlight that Kgokong testified he has 18 years of experience in the police service. With this experience, it is concerning that the trite position of a separate warrant of arrest being issued and presented to the concerned police officer, was overlooked. The absence of this warrant should have brought Kgokong to pause. A further indication that the arrest was made hastily without the necessary investigation, is the timing of Montsho’s statement, being the affidavit as required in terms of Section 11(4)(a) of the Harassment Act. This aligns with the absence of a warrant of arrest. Kgokong conceded that when Montsho opened the docket at the police station, she only presented the final protection order. This casts doubt on whether she provided Kgokong with her required statement when he arrested the plaintiff.
[14] Section 11 of the Harassment Act becomes relevant:
Section 11(1)(a) and (b): “(1) Whenever a court issues a protection order, including an interim protection order, the court must make an order (a) authorising the issue of a warrant for the arrest of the respondent, in the prescribed form; and (b) suspending the execution of that warrant subject to compliance with any prohibition, condition, obligation or order imposed in terms of section 10.”
Section 11(4)(a): “A complainant may hand the warrant of arrest, together with an affidavit in the prescribed form, wherein it is stated that the respondent has contravened any specified prohibition, condition, obligation or order contained in a protection order, to any member of the South African Police Service.”
[15] Kgokong informed that this statement was taken the same day, in the charge office by Seargent Olifant. It was pointed out that the entry of 7 December 2020, in the investigation diary, was made at 16:20 and the statement of Montsho was taken down at 16:00. Kgokong’s evidence was to the effect that he arrested the plaintiff within the court operating hours. It was argued that Kgokong could not have had the statement with him, as the statement was taken at the end of the court day (at 16:00). The argument goes: if Kgokong was correct, the time of taking down the statement would have been prior to 16:00; but as this was not the case it shows that Montsho’s statement was taken subsequent the arrest, thus conflicting with Section 11(4)(a) of the Harassment Act. There is merit in this argument, and it further highlight the many procedural incongruities in the events leading to the plaintiff’s arrest, including the arrest itself.
[16] I highlight Section 11(4)(b) of the Harassment Act, as it sets out the investigation which had to be undertaken by Kgokong before arresting the plaintiff.
Section 11(4)(b): “If it appears to the member of the South African Police Service concerned that, subject to subsection (5), there are reasonable grounds to suspect that the complainant or related person is suffering harm or may suffer imminent harm as a result of the alleged breach of the protection order by the respondent, the member must immediately arrest the respondent for allegedly committing the offence referred to in section 18 (1) (a).”
[17] Section 11(5)(a) to (d) of the Harassment Act guides the officer when deciding whether to affect arrest, in that: “In considering whether or not the complainant or related person is suffering harm or may suffer imminent harm, as provided for in subsection (4) (b), the member of the South African Police Service must take into account the (a) risk to the safety or well-being of the complainant or related person; (b) seriousness of the conduct comprising an alleged breach of the protection order; (c) length of time since the alleged breach occurred; and (d) nature and extent of the harm previously suffered by the complainant or related person.”
[18] Kgokong provided no evidence that he considered any of the provisions set out in Section 11(4)(b) and Section 11(5)(a) to (d) of the Harassment Act. The consideration of ‘imminent harm’ never featured during his evidence. Kgokong explained that he arrested the plaintiff because he thought an offence was committed but agreed that the arrest was based on a contravention of the final protection order, which was never served on the plaintiff. This arrest caused the plaintiff to spend 14 days in detention.
[19] During the course of the trial it became evident that no warrant of arrest was present; and there was no evidence presented that such a warrant was issued out in terms of the Harassment Act. The arrest did therefore not take place based on a warrant. The first defendant therefore had to rely on either Section 40(1)(a) of (b) of the Criminal Procedure Act 51 of 1977 (the ‘CPA’) to justify the arrest. The first defendant’s plea makes no election as to which section reliance is placed on; however from the evidence and the version pleaded, the only reasonable deduction is that this defendant relied on Section 40(1)(b): “A peace officer may without warrant arrest any person – whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.”
[20] Minister of Law and Order vs Hurley and Another 1986 (3) SA 568 (A) at 589E-F:
“An arrest constituted an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.”
[21] In JE Mahlangu and Another v Minister of Police 2021 ZACC 10 at paragraph 32 afore position was reiterated as follows: “It follows that in a claim based on the interference with the constitutional right not to be deprived of one’s physical liberty, all that the plaintiff has to establish is that an interference has occurred. Once this has been established the deprivation is unlawful and the defendant bears the onus to prove that there was a justification for interference.”
[22] In Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) the following was stated regarding suspicion:
“the reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at this disposal must be of a sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion not certainty. However, the suspicion must be based on solid grounds.”
[23] The findings in the following judgment are underscored, even though the judgment deals with the Domestic Violence Act and not the Harassment Act: Khanyile vs Minister of Safety and Security (7079/08) [2012] ZAKSDHC 12; 2012 (2) SACR 238 (KZD):
“[28] However the responsibility to conduct the investigation and enquiry prior to the execution of the warrant lies with the member to whom the complainant hands the affidavit as he / she may execute the warrant only if satisfied that the alleged contravention of the interim order as set out in the affidavit sustains the execution of the warrant.”
“[30] The warrant refers to the ‘attached’ protection order and affidavit and authorizes and orders the police to forthwith arrest the respondent ‘if there are reasonable grounds to suspect that the complainant may suffer imminent harm.’ The execution of the warrant is therefore constrained by the annexures thereto. The protection order sets out the nature of the interdict against the respondent and the affidavit must contain details of the alleged contravention of the interdict by the respondent. Only after a perusal of the annexures will a ‘member’ to whom the warrant is handed, be able to exercise his/her discretion as allowed in terms of Section 8(4)(b) of the Act read with Subsection (5), and decide if there are reasonable grounds that the complainant is at risk which justifies his arrest alternatively whether a notice in terms of Section 8(4)(c) should be served on the respondent.”
“[31] … Although it is apparent from the warrant, that the warrant was authorized and that there was an allegation that the order had been breached by the plaintiff, it was nevertheless incumbent upon Gumede before executing the warrant to satisfy himself of the terms of the order and of the nature of the alleged breach before executing the warrant. He failed to apply his mind to the proviso that the arrest should only be effected ‘if there are reasonable grounds to suspect that the complainant may suffer imminent harm as a result of the alleged breach of the protection order by the respondent.”
“[32] … However as a result of Gumede’s failure to peruse the documents and to satisfy himself as aforesaid, there were no grounds to suspect that the complainant may suffer imminent harm. Clearly the threshold of ‘reasonable grounds’ could not be reached given the lack of information at his disposal.”
“[33] Even though Gumede had not been presented with a warrant of arrest in terms of the Act previously or received any training on the implementation of the provisions of the Act, in particular the execution of a warrant of arrest issued in terms of the Act, as an experienced member of the South African Police Services, he ought to have known that the arrest of an individual is a drastic infringement of the arrestee’s constitutional rights to freedom and security of person (Section 12 of the Constitution of South Africa No 108 of 1996) and a warrant should therefore not be executed in haste and without due consideration of all the pertinent facts, particularly as there was only an allegation, not conclusive proof, that the order had been breached.”
[24] The evidence of Kgokong was unsatisfactory in material aspects. The circumstances surrounding the protection orders clearly called for further investigation before an arrest could have been summarily affected. Kgokong did not bring his decision to arrest within the ambit of Section 11(4)(b) of Harassment Act.
[25] I am satisfied that the arrest and detention caused thereby was unlawful.
Quantum in re unlawful arrest and detention:
[26] It is common cause that the plaintiff was arrested on 7 December 2020. During the trial it became apparent that there were some discords regarding the date of release. Paragraph 9 of the plaintiff's initial particulars of claim reads: “On 9 December 2020, the Plaintiff made a first appearance at Tlhabane Magistrate’s Court and the matter was remanded to 14 December 2020. On the 14 (sic) December 2020, the Plaintiff applied for bail and same was only granted. The Plaintiff remained in custody for a period of fourteen (14) days from the day of arrest until bail was granted.” However, if 14 days are calculated from date of arrest, such date would be 20 December 2020. The defendants’ answers to aforesaid in paragraph 3 of their plea, by stating: “The Defendant acknowledges the content of these paragraphs.” Therefore, the defendants acknowledged that the plaintiff was detained for 14 days. The plaintiff amended his particulars of claim, and in paragraphs 8 and 10 thereof, the following was pleaded:
“Immediately after his first appearance in court on 9 December 2020, the Plaintiff was unlawfully detained further at Tlhabane Police station cells, in terms of the court order issued at the request of the public prosecutor, until 14 December 2020 when he was granted bail and released on 20 December 2020.”
“The Plaintiff was detained for 14 days in total and the conditions under which the Plaintiff was detained were seriously substandard and inhumane.”
[27] No consequential plea was delivered, and it is accepted, from the defendants’ plea, that they acknowledge that the plaintiff was detained for 14 days. The plaintiff, during his evidence stated that he was released on 24 December 2020. In cross-examination he was referred to the date of 20 December 2020, as pleaded in his amended particulars of claim, to which the plaintiff answered: “I see that”. No amendment of the said particulars of claim was requested and this aspect was not seriously or fully canvassed between the parties during the evidence. As such, it is accepted that the detention period is 14 days.
[28] Turning to the circumstances surrounding the arrest and detention, Kgokong agreed that people saw the plaintiff get arrested, but added that the plaintiff was not handcuffed. The plaintiff evidenced that he was arrested at court, and as it was during lunch, onlookers witnessed his arrest. Save for the plaintiff stating that Kgokong grabbed him by the belt, it is accepted that there was no argument or altercation which would attract a vast number of spectators. Plaintiff was 34 years old when he was arrested.
[29] The plaintiff explained that his detention was during the Covid-19 pandemic, and he was not provided with a mask. He suffers from asthma and felt that his life was in danger. Other detainees were smoking inside the cell and the plaintiff felt as if he was suffocating. The police officers refused to assist in obtaining his asthma medication. The plaintiff explained that he was given a variation of either bread or samp (which was not cooked properly) daily, and due to his medical condition, such food caused him stomach pain. Notwithstanding complaining to the police officers, he received no assistance.
[30] The plaintiff had to sleep on the floor and was not given a blanket or a sponge. The cell was small and overcrowded. Some of the detainees were fighting and the cell was noisy. There was no privacy especially when using the toilet. On most of the days there would not be any water, and the toilet would be used without flushing it. The smell was pungent causing the plaintiff to believe that he could not breath properly.
[31] The plaintiff explained that he was taken to court on 9 December 2020 where the matter was postponed to 14 December 2020. On 14 December 2020 he was granted bail in the amount of R500.00. He requested permission to make a phone call, to request his mother or sister to bring the bail money. The plaintiff maintains that the police officers refused him this call, mocking him that he did not buy them air-time.
[32] The plaintiff informed that the arrest and detention caused him to experience stress about life, which resulted in the plaintiff being hospitalized many times. The plaintiff also stated that he lost his employment because of the arrest. Plaintiff states that he is currently unable to obtain employment because of the charges that was brough against him. His evidence was to the effect that he was employed by the security company G4S, whom has a policy that an employee cannot remain employed if faced with criminal charges. Plaintiff informed that he earned R27 000.00 per month, after deductions. The plaintiff did not show that he is unable at all to obtain employment with a different employer, nor did he quantify any loss of earning capacity. Save for this aspect, the remainder of plaintiff’s evidence regarding his experiences in detention was uncontested.
[33] Section 10 of the Constitution states that:
“Human dignity. —Everyone has inherent dignity and the right to have their dignity respected and protected.”
[34] Section 12(1) of the Constitution states that:
“Freedom and security of the person. — (1) Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.”
[35] In J E Mahlangu and Another v Minister of Police [2021] ZACC 10 at par [27] it was stated:
“The unlawful deprivation of liberty, with its accompanying infringement of the right to human dignity, has always been regarded as a particularly grave wrong and a serious inroad into the freedom and rights of a person. In Thandani, the Court said that:
“sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a [person] in a free society which should be jealously guarded at all times and there is a duty on our Courts to preserve this right against infringement. Unlawful arrest and detention constitutes a serious inroad into the freedom and the rights of an individual.”
[36] It is against this Constitutional backdrop that the plaintiff’s evidence is considered. In evaluating such evidence to determine an appropriate damages award, guidance is found in Visser & Potgieter, Law of Damages, third edition, pages 545 – 548:
“In deprivation of liberty the amount of satisfaction is in the discretion of the court and calculated ex aequo et bona. Factors which can play a role are the circumstances under which the deprivation of liberty took place; the presence or absence of improper motive or ‘malice’ on the part of the defendant; the harsh conduct of the defendants; the duration and nature (eg solitary confinement or humiliating nature) of the deprivation of liberty; the status, standing age, health and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in previous comparable cases; the fact that in addition to physical freedom, other personality interests such as honour and good name as well as constitutionally protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation; the fact that the plaintiff contributed to his or her misfortune; the effect an award may have on the public purse and, according to some, the view that the action iniuriarum also has a punitive function.”
[37] In considering previous award made, I am mindful of what was held in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA):
“In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted. However, our courts should be astute to ensure that the awards they make for such infractions reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is impossible to determine an award of damages, for this kind of injuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous. The correct approach is to have regard to all of the facts of the particular case and to determine the quantum of damages on such facts.”
[38] In Minister of Safety and Security v Seymore 2006 (6) SA 320 (SCA) it was held:
“The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate, but they have no higher value than that.”
[39] I am also mindful thereof that the plaintiff was arrested for contravention of a final protection order, which was not served on him; in circumstances where there was no warrant issued in terms of the Harassment Act; eventually causing the plaintiff to be detained for 14 days.
[40] In De Klerk v Minister of Police [2019] ZACC 32 the appellant, after his employer had lodged a complaint of assault against him, was requested to report to the Sandton Police Station. Upon his arrival, he was arrested without a warrant. It was common cause that the arrest was unlawful. Even though he was taken to court, Mr De Klerk was not afforded the opportunity to apply for bail at the first appearance. He was eventually released, after spending 8 days in detention. Through the majority judgment, he was awarded R300 000.00.
[41] In I.H v Minister of Police (58534/2012) [2023] ZAGPPHC 1156 (8 September 2023) the plaintiff was 49 years old at date of her arrest, being 4 November 2010. She was arrested without a warrant of arrest by members of the Special Commercial Crime Unit and was detained at the Krugersdorp holding cells until 8 November 2010. After bail was refused, she was detained at Sun City Diepkloof Prison and subsequently released on 12 November 2010, thereby spending 9 days in detention. The plaintiff therein testified that she was emotionally frustrated and angry for three months after her release and she just wanted to stay home and not go out. During that time, she cried and did Bible study to get her life back in order. Her anxiety persisted. The court awarded her R350 000.00 in damages.
[42] In Kats v Minister of Police (2022045803) 2024 ZAGPPHC 640 (13 June 2024) the plaintiff was arrested on 19 November 2019 and was detained for a period of 3 days at Wierdaburg Police Station until his first appearance on 21 November 2019. He was denied bail, which led to a further detention of 7 days. He was subsequently granted bail on 2 December 2019, causing the plaintiff to have been detained for 14 days. The court awarded him R475 000.00 in damages.
[43] Having considered the circumstances of the arrest and detention as outlined earlier herein, I am of the view that a fair award for the plaintiff’s unlawful arrest and detention, would be R480 000.00.
Malicious prosecution:
[44] I now consider the evidence relating to the malicious prosecution claim.
[45] During the plaintiff's evidence he maintained that his prosecution was unfair and that a proper case against him was never made out. He held the view that the prosecutors wanted to harass him because amongst other considerations, mainly (a) he was never served with a protection order and (b) the criminal charges brought against him were based on alleged contravention of a protection order in terms of the Domestic Violence Act, Act 116 of 1998 (‘the Domestic Violence Act’) and not the Harassment Act. I dealt with the defective service of the interim protection order and the non-service of the final protection order earlier herein, and for ease of reference herein further refer to this as ‘the noncompliance service’. As far as the noncompliant service pertains to the prosecution, I refer to the finding in Barker v S (A35/2022) [2023] ZAMPMBHC 55; 2024 (1) SACR 666 (MM) (25 October 2023), at paragraph 18: “On the service of this interim order, the State has a huge mountain to climb as it relied on it to prove the contravention the appellant was charged with. This is so because, as already indicated above, it is common cause between the parties that the final order was not served on the appellant. First, the Act criminalises the failure to comply with the court order. This means that the State bore the onus to prove its case beyond reasonable doubt that the appellant failed to comply with the court order…”. Apart from the noncompliant service, I also underscore the common cause fact that the protection orders were issued in terms of the Harassment Act, but the plaintiff was charged for contravention of provisions of the Domestic Violence Act. The second defendant’s prosecution was founded on the incorrect Act, in that the charge sheet reads: “…That the said accused is guilty of contravening of section 17(a), read with section 1,5,6,7 and 17 of the Domestic Violence Act, Act 116 of 1998.” I will herein further refer to this as the “incorrect charge”.
[46] In Koji v Director of Public Prosecutions (628/2018) [2024] ZANWHC 297 (5 December 2024) Reddy J states as following in paragraphs 17 and 18: “[17] The National Director of Public Prosecutions derives its mandate from section 179 of the Constitution. Section 179(2) expressly empowers the prosecuting authority to institute criminal proceedings on behalf of the State. This constitutional imperative must be exercised without fear, favour, or prejudice. This constitutional edict should not be construed to mean that a prosecution can be initiated without a proper consideration and application of the relevant law to justify unfounded prosecutions.
[18] What is demanded in a constitutional eon is that when a decision is made to prosecute, prosecutorial oversight accompanies such decision to continuously assess the process to determine whether the prosecution is justified or not.” [my emphasis added]
[47] The jurisdictional requirements for a successful claim of malicious prosecution, has been set out in Minister for Justice and Constitutional Development v Moleko (131/07) [2008] ZASCA 43 (31 March 2008), at paragraph 8: “In order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove –
(a) That the defendants set the law in motion (instigated or instituted the proceedings);
(b) That the defendants acted without reasonable and probable cause;
(c) That the defendants acted with malice (or animo injuriandi); and
(d) That the prosecution has failed.”
[48] It is not in dispute that the proceedings were so instituted, and that the prosecution failed. The aspect of reasonable and probable cause; and malice (or animo injuriandi) is in dispute.
[49] The plaintiff’s first appearance was on 9 December 2020. The plaintiff testified that the criminal trial was postponed on several occasions for a period of approximately a year and 2 months. The reasons for such postponements, according to the plaintiff, was for the State to obtain evidence against him. Only Montsho testified on behalf of the State. The plaintiff was released by virtue of section 174 of the CPA. The plaintiff maintains that when he was charged, the prosecutor concerned did not have sufficient evidence that he contravened a protection order, nevertheless a protection order issued under the Domestic Violence Act. During cross-examination the plaintiff remained steadfast that there was never a prima facie case against him, that the purpose of the prosecution was not bona fide, but for the purpose of injuring the plaintiff.
[50] Tjaro gave evidence, on behalf of the second defendant. He stated that he is a control prosecutor. In 2020 he took over this matter from Mekgwe. From the evidence on behalf of the second defendant, the following prosecutors were involved at various stages of the criminal trial: (a) Mekgwe who was the then control prosecutor, who decided to enrol the matter; (b) Tjaro, who took over from Mekgwe; (c) Ratshidi, who attended to the first appearance, where the plaintiff was not released; and (d) Maoba, who conducted the criminal trial. Where appropriate, I refer to these prosecutors collectively as ‘the prosecution / the prosecutors’. Mekgwe and Ratshidi did not testify.
[51] Tjaro stated that Mekgwe initially screened and enrolled the matter. Because Mekgwe did not testify the reasoning why prosecution was initiated was not placed before the court. Tjaro however maintained that there was never any reason to withdraw the charges against the plaintiff. This statement does not bestow any favour on the evidence of Tjaro, as he evidenced that (a) a prosecutor is required to read the docket every time the matter appears in court; (b) a prosecutor must ensure that it is wise to proceed with the case; (c) a prosecutor must peruse the charge sheet to ensure that the evidence in the docket supports the charge sheet; and (d) if a mistake is made, that such mistake will be recognised the next time the docket is screened before going to court. It is not in dispute that the matter made various appearances in the criminal court, which would entail that the docket should have been screened on various occasions, by the prosecution. Notwithstanding this, the prosecution continued in the face of the noncompliant service and based on the incorrect charge. Still, Tjaro saw no reason to withdraw the charges against the plaintiff.
[52] Tjaro informed that any prosecutor who peruse the docket will be able to determine whether there is reasonable and probable cause; and malice, as according to him, it will be so apparent ex facie the docket. Notwithstanding this statement, he refrained from commenting on whether he believed Mekgwe had evidence upon which she believed the plaintiff might be found guilty. He agreed that on 9 December 2020, being the first appearance, the following was contained in the docket: (a) Montsho’s statement; (b) the interim protection order; (c) the notice of rights; and (d) the bail information. He conceded that the investigation diary makes no mention of a return of service being attached in the docket. Save for a feeble attempt to explain that the Domestic Violence Act and Harassment Act are similar in nature, Tjaro could not provide any clarity as to why he himself, Mekgwe and Ratshidi all decided to prosecute, whilst being faced with noncompliant service; and why the incorrect charge was never rectified.
[53] Maoba, the second witness on behalf of the second defendant, was the prosecutor who eventually conducted the criminal trial. He also maintained that there was never any reason to withdraw the charges against the plaintiff; and when he screened the docket, it contained (a) the interim protection order; (b) the return of service; and (c) Montsho’s statement. According to Maoba he only realized that he was not going to obtain a conviction when Montsho broke down on the witness stand. He closed his case and did not oppose the Section 174 application. Maoba informed that he could not remember ever seeing a warrant of arrest in the docket.
[54] Maoba conceded that the Domestic Violence Act and the Harassment Act are two different acts. He pivoted to say that the arresting officer might arrest a person on a certain charge, but the prosecutor can add further charges. This, however, fails to explain why the prosecutors involved in this matter chose not to rectify the charge sheet. Maoba conceded that, in order to secure a conviction on a charge of contravention of a protection order, the prosecutor must be satisfied that the protection order was served on that person. Notwithstanding this concession, prosecution continued in circumstances where it was glaring that no service of the protection orders took place.
[55] Under cross-examination Maoba conceded that he was not aware that the protection order was issued in terms of the Harassment Act. This raises serious concerns pertaining to the thought that went into the continuous prosecution of the plaintiff. When the charges were put to the plaintiff, it was done in terms of an incorrect act. Under cross-examination on the aspect of service, Maoba did concede that the protection order had to be served by a police officer, as per paragraph 9 of the protection order, as mentioned earlier in this judgment. Maoba then agreed that the service he relied on did not comply with said paragraph 9. Regarding the existence of the warrant of arrest, Maoba merely stated that he believed that it existed, because the plaintiff came from custody. He could not provide any clarity why the plaintiff was not released on his first appearance, as he informed that Ratshidi was the prosecutor attending to the first appearance.
[56] The evidence of the two witnesses of the second defendant is seriously unconvincing. Notwithstanding the noncompliant service, the prosecutors remained insistent that there are reasonable and probable cause to prosecute. From the evidence of the prosecutors, it seems as if the docket were screened, on several occasions, by at least four prosecutors, and all of them disregarded the fact that there was noncompliant service. Seemingly, the four prosecutors were also content to continue prosecution under the incorrect charge, without a single attempt to rectify this. In S v Mashinini and Another 2012 (1) SACR 604 (SCA) at paragraph 11 it was stated: “Section 35(3)(a) of the Constitution provides that every accused person has a right to a fair trial which, inter alia, includes the right to be informed of the charge with sufficient detail to answer it. This section appears to me to be central to the notion of a fair trial. It requires in clear terms that, before a trial can start, every accused person must be fully and clearly informed of the specific charge(s) which he or she faces. Evidently, this would also include all competent verdicts. The clear objective is to ensure that the charge(s) is sufficiently detailed and clear to an extent where an accused person is able to respond and importantly to defend himself or herself. In my view, this is intended to avoid trials by ambush.”
[57] In Moleko (supra) at paragraph 20, the following was stated regarding the consideration of reasonable and probable cause: “Reasonable and probable cause, in the context of a claim for malicious prosecution, means an honest belief founded on reasonable grounds that the institution of proceedings is justified. The concept therefore involves both a subjective and an objective element – ‘Not only must the defendant have subjectively had an honest belief in the guilt of the plaintiff, but his belief and conduct must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence.’”
[58] In The National Director of Public Prosecutions v Sijoyi Robert Mdhlovu (Case no 194/2023) [2022] ZASCA 85 (03 June 2024), the following was stated in paragraph 20 and 21:
“[20] In Prinsloo and Another v Newman, this Court discussed the concept of reasonable and probable cause for prosecution in the context of malicious prosecution. The Court held that the test for reasonable and probable cause is an objective one. It is not based on the subjective beliefs or motives of the prosecutor. Reasonable and probable cause exists if a reasonable person would have concluded that the accused was probably guilty on the facts available to the prosecutor at the time.”
“[21] It follows that a prosecutor need not have evidence establishing a prima facie case or proof beyond a reasonable doubt when deciding to initiate a prosecution. Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable prosecutor would have done in light of the information available at the relevant stage.”
[59] On considering the evidence which was before the concerned prosecutor when the decision was taken to prosecute, it cannot be said that there was objective probable cause to prosecute. The evidence available when the decision was taken to prosecute did not include a warrant of arrest; it did not satisfy that proper service of either the interim or final protection orders were achieved; and it could not have moved a prosecutor to charge the plaintiff for contravention of the Domestic Violence Act. Clearly, the content of the protection order (as contained in the docket) was not considered, otherwise one would reasonably have expected that the charge sheet would have reflected the correct act. Similarly, there was no sufficient evidence available to the prosecutors to so continue the prosecution. In this matter, the prosecutors did not have such information as would lead a reasonable person to conclude that the plaintiff had probably been guilty of the offence charged with.
[60] In Moleko (supra) the following was stated regarding the consideration of malice:
“[61] In the Relyant case, this court stated the following in regard to the third requirement: Although the expression “malice” is used, it means, in the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and another Wessels JA said: ‘Where relief is claimed by this actio the plaintiff must allege and prove that the defendant intended to injure (either dolus directus or indirectus). Save to the extent that it might afford evidence of the defendant’s true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance.’”
“[63] Animus injuriandi includes not only the intention to injure, but also consciousness of wrongfulness: ‘In this regard animus injuriandi (intention) means that the defendant directed his will to prosecuting the plaintiff (and thus infringing his personality), in the awareness that reasonable grounds for the prosecution were (possibly) absent, in other words, that his conduct was (possibly) wrongful (consciousness of wrongfulness). It follows from this that the defendant will go free where reasonable grounds for the prosecution were lacking, but the defendant honestly believed that the plaintiff was guilty. In such a case the second element of dolus, namely of consciousness of wrongfulness, and therefore animus injuriandi, will be lacking. His mistake therefore excludes the existence of animus injuriandi.’”
“[64] The defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequences of his or her conduct (dolus eventualis). Negligence on the part of the defendant (or, I would say, even gross negligence) will not suffice.”
[61] In Payi v Minister of Police and Another (2063/2019) [2024] ZAECQBHC 14 (22 February 2024) at paragraph 68, the following was stated: “In Patel v National Director of Public Prosecution and Others Ledwaba DJP held: “[27] A prosecutor should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution, otherwise the prosecution should not commence. According to the DPP”s Prosecution Policy Code of Conduct, Guidelines and Directing under the heading: When the role of the prosecutor is described, it is stated that:
“Prosecutors must at all times act in the interest of the community…
[Members of the Prosecution Authority] must act impartially and …in good faith...”
[62] In my view the prosecutors did not exercise the requisite ordinary care and prudence in making the decision to prosecute the plaintiff, and in continuing the prosecution. It would appear as if the prosecution did not bother to ascertain whether proper service was affected and whether the plaintiff would have been aware of the protection orders and the specific terms thereof, at the time when he so entered Montsho’s yard. It can hardly be said that, objectively, the prosecution took reasonable measures, as could be expected of the reasonable prosecutor, to fully inform themselves of the circumstances surrounding the protection orders. This is clearly evidenced by the incorrect charge. I am of the view that the plaintiff has discharged the onus of proving absence of reasonable and probable cause.
[63] I am further satisfied that the plaintiff proved animus injuriandi on the part of the second defendant. The prosecution clearly intended to prosecute the plaintiff and was fully aware of the fact that, by doing so, the plaintiff would in all probability be injured and similarly his dignity negatively affected. Despite this knowledge, the prosecution took the decision to prosecute, without any investigation into the required compliance with the provisions of the Harassment Act and thus acting in a manner that showed their recklessness as to the possible consequences of their conduct.
[64] I therefore find that the prosecution of the plaintiff was malicious.
Quantum in re malicious prosecution:
[65] I have dealt with the applicable general principles in assessing quantum relating to general damages, herein above. In this matter the plaintiff made his first appearance in the criminal court on 9 December 2020. He was not released on that day; the reason therefore remains unknown. On 14 December 2020 the plaintiff was granted bail, but as stated earlier herein, he remained in custody for a total period of 14 days. The plaintiff, subsequent his release, stood trial. The matter made several appearances in court. Only on 17 February 2022 was he acquitted by virtue of Section 174 of the CPA. The plaintiff was subjected to approximately 15 months of malicious prosecution.
[66] I have considered the relevant facts of this matter, the circumstances under which the prosecution took place, previous awards made in similar cases, as well as the case law relied on by the parties’ legal representatives in their heads of argument. I am also mindful of the trite position that each case must be treated according to its own merits. Having regard to the circumstances of this case, I am of the view that R200 000.00 is fair and reasonable for damages suffered by the plaintiff for his malicious prosecution.
Order:
[67] In the circumstances, I issue the following order:
Claim against the first defendant:
[i] The first defendant is ordered to pay the plaintiff an amount of R480 000.00, for his unlawful arrest and detention.
[ii] Interest on the above amount a tempora morae at the prescribed legal rate from the date of judgment.
Claim against the second defendant:
[iii] The second defendant is ordered to pay the plaintiff an amount of R200 000.00 for his malicious prosecution.
[iv] Interest on the above amount a tempora morae at the prescribed legal rate from the date of judgment.
Claim for costs:
[v] The defendants are ordered to pay the plaintiff’s costs of the action, jointly and severally, the one paying the other to be absolved, such costs to be on the high court party-and-party scale, which costs are to include the costs of counsel on scale B.
___________________
D. SMIT
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
DATE OF JUDGMENT RESERVED : 13 DECEMBER 2024
DATE OF JUDGMENT : 11 MARCH 2025
For the plaintiff: ADV O. C. LEGAE
Instructed by: SEPHECHOLO LECHUTI LESOFE INC
2696 James Watt Cres Street
Mahikeng
Ref: Mr B Sephecholo
Email: bakang@sllincattorneys.co.za
For the defendants: ADV Z WILLIAMS
Instructed by: THE STATE ATTORNEY
1st Floor East Gallery
Cnr Sekame Road & Dr James
Moroka Drive, Mmabatho
Ref: 0765/22/P14
Email: ONdabeni@justice.gov.za
14
Cited documents 11
Act 6
| 1. | Constitution of the Republic of South Africa, 1996 | 12618 citations |
| 2. | Criminal Procedure Act, 1977 | 4065 citations |
| 3. | Magistrates' Courts Act, 1944 | 2924 citations |
| 4. | Rules Board for Courts of Law Act, 1985 | 211 citations |
| 5. | Domestic Violence Act, 1998 | 160 citations |
| 6. | Protection from Harassment Act, 2011 | 59 citations |