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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...................................................First Plaintiff

VAN WYK, ANDRIES DANIËL........................................................Second Plaintiff

and

THE MINISTER OF SAFETY AND SECURITY..............................First Defendant

THE MINISTER OF JUSTICE......................................................Second Defendant

MOCHITELE, KANTI JAMES...........................................................Third Defendant

INSPECTOR PHOSHOKO …..............................................Fourth Defendant

JUDGEMENT

VAN DER MERWE, AJ

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 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.

3. 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.

4. 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.

5. 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 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. According to the plaintiffs, the magistrate had a discussion with the interpreter 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.

17. 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.

18. 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 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.

19. 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.

20. 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.

21. 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.

22. 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.

The Claim against the third Defendant, Mr KJ Mochitele

23. 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 74 discharge was properly granted in favour of the plaintiffs and that the testimony of the third defendant and his relatives were rightly rejected.

24. 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.

25. 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.

26. 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.

27. 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 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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 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.)

38. 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."

39. Not only must the third defendant have known that the information furnished by himself, his spouse and his brother was false but he also 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.

40. 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.

41. 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

42. 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 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.

43. 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.

44. 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 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.

45. 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.

46. 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 application."

47. 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 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.”

48. 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.

49. 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 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.

50. 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.

51. 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.

52. 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 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.

53. 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

54. 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.

55. 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.)

56. The provisions of the Constitution are also of material and fundamental 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] ZACC 3; 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.)

57. 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 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.”

58. 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.

59. 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.

60. 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 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.

61. 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.

62. 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."

63. 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.

64. 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 ordinarily a warrant of arrest would provide the arresting officer with a complete defence.

65. 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.

66. 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.

67. 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 of the plaintiffs to call the senior public prosecutor as a witness.

68. 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

69. 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.

70. 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.

71. 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 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.

72. 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.

2. The first, second and fourth defendants are directed to make payment, jointly and severally, to the second plaintiff in the amount of R250,000.

3. 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.

4. The third defendant is directed to make payment of an amount of R5000.00 to the first plaintiff.

5. The third defendant is directed to make payment of an amount of R5000.00 to the second plaintiff.

6. 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.

7. 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.

____________________________

LJ VAN DER MERWE

ACTING JUDGE OF THE HIGH COURT

25 January 2011.

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