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NOT REPORTABLE

IN THE NORTH GAUTENG HIGH COURT,

PRETORIA (REPUBLIC OF SOUTH AFRICA)

CASE NO: 32531/2001

DATE:09/02/2012

In the matter between

JOSEPH BUTI MAHLANGU......................................................................................PLAINTIFF
And

MINISTER OF SAFETY AND SECURITY....................................................... 1st DEFENDANT

RICHARDS LEKOTWANA MKWANYANE......................................................2nd DEFENDANT

KENNETH MABUSU.......................................................................................3rd DEFENDANT

JUDGMENT

MSIMEKI, J

[1] The Plaintiff brought an action for damages that he allegedly suffered against the first, second and the third Defendant's based on malicious prosecution and unlawful arrest and detention.

[2] Mr M. F. Ackermann represented the Plaintiff while Mr M. Mphaga represented the Defendants.

BRIEF FACTS

[3] The thrust of the action is contained in paragraphs 7 and 8 of the Plaintiffs particulars of claim. In paragraph 7 the Plaintiff alleges that the second and third Defendants, during January 2001, unlawfully and intentionally and without reasonable cause whilst acting within the scope of their duties set the law in motion against him by laying false charges of corruption and interference and hindering the second Defendant in the exercise of his police duties at Kwa-Mhlanga by furnishing the following false information to wit:

1. That the Plaintiff in a corrupt manner had released a certain Nissan 1400 bakkie to one Sophie Lindiwe Nsidi which is obviously Msibi.

2. By alleging that the Plaintiff had no grounds when he so acted.

3. The Plaintiffs said action was questionable and corrupt.

In paragraph 8 the Plaintiff avers that the second and the third Defendants had no reasonable grounds for laying such charges against him and that they also had no reasonable belief in the truthfulness of the information. The Plaintiff alleges that the second and third Defendants obtained a J50 warrant of arrest which led to his arrest and detention. He was later released on warning. The case was withdrawn against the Plaintiff on 27 March 2001. The Plaintiff further alleges that he. as a result of the arrest and detention, suffered general damages in the amount of R200.000-00 for contumelia, deprivation of liberty and inconvenience. The Defendants, in their response to
paragraph 7 of Plaintiffs particulars of claim, admit that a police docket - KwaMhlanga

Masl79/01/2001, indeed, was opened against the Plaintiff on charges of corruption and that the second Defendant was the complainant in the said docket. They plead further that the local Prosecutor applied for the warrant of arrest based on the information at his disposal and that they are not liable for the alleged damages.

THE ISSUES

[4] The issue is whether Plaintiffs evidence supports the claim based either on malicious prosecution or unlawful arrest and detention.

[5] It is incumbent upon the Defendants to prove the lawfulness of the Plaintiffs arrest. The Plaintiff has to prove all the other elements.

COMMON CAUSE FACTS

[6] These are that:

1. The Plaintiff released a motor vehicle that was impounded by the second and the third Defendants to one Lindiwe Msibi Mahlangu;

2. The application for the J50 warrant was made by the Senior Public Prosecutor before a magistrate at Kwa Mhlanga magistrate court;

3. The Plaintiff was arrested on the strength of the J50 warrant;

4. The Plaintiffs arrest resulted from his releasing the said motor vehicle to Lindiwe Msibi Mahlangu.

[7] To succeed with a claim of malicious prosecution the Plaintiff must prove that:

1. The second and third Defendants set the law in motion i.e. they instituted the prosecution or instigated it.

2. The second and third Defendants acted without reasonable and probable cause.

3. The second and third Defendants were prompted by improper motive or malice.

4. The proceedings against the Plaintiff were . terminated in his favour.

It is contended on behalf of the Defendants that while the Plaintiff was charged with the onus to prove the above elements to be entitled to a claim based on malicious prosecution he failed to do so and that he, therefore, is not entitled to such a claim. It was further contended on behalf of the Defendants that the evidence of the Senior Public Prosecutor who applied and obtained the J 50 warrant of arrest against the Plaintiff on the basis of the information that was at his disposal was material and essential for the determination of the Plaintiffs claim. Its absence spells calamity to the claim it was further submitted. This then takes us to the issue that was raised on behalf of the Plaintiff namely: that the fact that the Plaintiff was arrested at the time he was investigating the case of corruption against the second and the third Defendants raises some eyebrows and that the J50 warrant was not properly sought and obtained- I shall return to this later.

EVIDENCE

[8| The Plaintiff and Superintendent Boning testified in support of the Plaintiffs case while the second Defendant, third Defendant and Inspector Mbonani, testified in support of the Defendant's case.

1. THE PLAINTIFF

The Plaintiff, a Captain in the SAPS: Counter Intelligence Unit at head office was in Februar\ -March 2001 a detective sergeant stationed at anti-corruption unit in Middelburg. He was the investigating officer in CAS no: 217/08/99 in which the second and the third Defendants had been charged with corruption. The Director of Public Prosecutions, on 23 August 2000, had ordered that the two Defendants be prosecuted. The Plaintiff arrested them on 20 September 2000 and took them to court where they were acquitted on 16 May 2001. He kept an up to date investigation diary of events which clearly showed that their case was still on when they arrested the Plaintiff and charged him with corruption. The docket was opened on 19 January 2001 at Kwa Mhlanga: MAS no 179/01/2001. The second Defendant, as already alluded to earlier, was the complainant in the said docket. The allegation was that the Plaintiff had handed a Nissan 1400 bakkie to one Sophie Lindiwe Msibi while he was aware that the said motor vehicle had been stolen and that the said Sophie Lindiwe Msibi had not been entitled thereto. This led to the Plaintiffs arrest at court by the

Defendants on 14 March 2001 when the Plaintiff had gone there for a different matter. His hands were cuffed behind his back and he was then taken to the police station approximately 800 metres from the court in full view of the members of the public some of whom were laughing and saying that he too was corrupt. His finger prints were taken and he was then taken back to court where he appeared without being given bail. The case was remanded to 11 April 2001. He was taken back to the police station, searched and taken to the cells by the third Defendant who remarked to the 7 to 8 detainees in the cell that the Plaintiff had been corrupt and that they should "fuck him up". Plaintiff testified that on arrival in a cell one is expected to fight with the boss of the cell. You become the boss only upon defeating the boss. He fought with the boss and won the fight. He testified that the position would have been terrible had he lost the fight. He was, however, saved by the arrival of his commander

Superintendent Boning that evening who took him to Witbank court where he was released on warning and the matter postponed to 27 March 2001. The matter was eventually on 27 March 2001 withdrawn when the Director of Public Prosecutions refused to prosecute the Plaintiff. Regarding the allegation that he had released the motor vehicle in a corrupt manner to Sophie Lindiwe Msibi Mahlangu. iie testified that the motor vehicle had been a rebuilt where different parts of different motor vehicles had been used. He enlisted the assistance of Mr L. Borman an expert from Nissan South Africa who informed him that the motor vehicle had not been stolen. Indeed, although the motor vehicle ended up being impounded, same had had no complainant. He was not linked to any theft. He also sought a statement of Danielle Nkuna Molobi, the one who had sold the motor vehicle to Lindiwe Msibi Mahlangu. The only difficulty with the 1400 bakkie, according to the second Defendant, was that the papers e.g. the clearance certificate and the motor vehicle did not correspond. He then recommended to Captain Van der Merwe that the motor vehicle be re tuned to Msibi. The disposal document was signed by the Captain and the motor vehicle was duly returned to Msibi. The motor vehicle was later retrieved by the second Defendant and has now been compacted. Msibi's husband was arrested, detained and later released because of this motor vehicle.

2. SUPERINTENDENT

BONING was the commander of the Plaintiff at the anti-corruption unit in Middelburg. He was advised on 14 March that the Plaintiff had been arrested at Kwa Mhlanga. Knowing of the dangers policemen are exposed to in the cells, he immediately arranged with the Senior Prosecutor in Witbank that the Plaintiff be taken there for a formal appearance. He proceeded to Kwa Mhlanga, fetched the Plaintiff from the cells and took him to Witbank court where he was released on warning and the case postponed to 27 March 2001. He denied that the second Defendant spoke to him telephonically about the Plaintiffs statement. He also denied receiving a letter which the second Defendant alleged he had sent him. He was only surprised to learn that the Plaintiff had been arrested on 14 March 2001. He did not receive the factual report that the second Defendant claimed to have forwarded to him. He confirmed that the Plaintiff indeed, had been in the same cell with other prisoners. The reception that he received from Kwa Mhlanga police officials when he went to assist the Plaintiff left a number of things to be desired. They were not keen to help him and to release the Plaintiff until they were ordered to, after he had telephonically spoken to their seniors.

3 THE SECOND AND THE THIRD DEFENDANTS.

They testified confirming that they had at some stage impounded the 1400 bakkie that had belonged to Lindiwe Msibi Mahlangu after they had suspected that the motor vehicle had been a stolen motor vehicle. Goliath, her husband, was, as a result, arrested and later released. Goliath had been a complainant in case no: CAS 217/08/99 where he had alleged that the third Defendant had solicited a bribe of R400.00 from him which he had paid. The second Defendant was added to the case on the basis of an allegation of intimidation relating to the same matter. The second and the third Defendants contradicted themselves and each other in many material respects. Mr Mphaga so conceded too. This then takes me to the issue of the J50 warrant of arrest against the Plaintiff which, according to the submission on behalf of the Plaintiff, had not been properly sought and obtained.

THE J50 WARRANT OF ARREST

[9] There are two letters from the Director of Public Prosecutions' office dated 19 February 2001 and 2 August 2001. The letters too deal with CAS 179/01/2001 which relates to Sergeant J B Mahlangu, the Plaintiff

THE LETTER OF 19 FEBRUARY 2001

1.The letter is addressed to the Prosecutor KwaMhlanga.

2. It is clear from the letter that that was not the first communication between the Director of Public Prosecutions' office and the Prosecutor's office.

3. The Director of Public Prosecutions' office, in the letter, was giving instructions to the Prosecutor regarding the conduct of the case.

4. statement, according to the letter, was needed from Captain Van der Merwe.

5. The warning statement of the Plaintiff was also needed. The investigating officer was directed to contact the area commissioner if the commanding officer of the Plaintiff (suspect) did not co-operate. The direction and the instruction do not say that a J50 warrant of arrest against the Plaintiff had to be obtained and that the Plaintiff be arrested.

6. The docket was then returned to the Prosecutor who knew well what had to be done.

THE DIRECTOR OF PUBLIC PROSECUTIONS' LETTER OF 2 AUGUST 2001

It is noteworthy that at this stage the Prosecutor had not advised the Director of Public Prosecutions1 office that Kwa Mhlanga CAS 217/8/99 with which the Director of Public Prosecutions' office at the time was ceased with was linked to the very case that the two letters relate to i.e. CAS 179/01/2001. This much is evident from paragraph lof the Director of Public Prosecutions' letter of 2 August 2001 addressed to The Branch Commander - SAPS: Detective Branch Kwa Mhlanga appearing on page 366 of the papers. The letter of 19 February, too, forms page 375 of the papers. It is important to mention that the Director of Public Prosecutions1 office first became aware of CAS 179/01/2001 when the Prosecutor: Kwa Mhlanga wrote to them on 6 February 2001 seeking the Director of Public Prosecutions' decision. The Director of Public Prosecutions' office then responded to the letter first seeking information before deciding. Instead of getting the required information, as paragraph 2 of their letter dated 2/8/01 shows, the Director of Public Prosecutions' office then learnt that a J50 warrant of arrest was "somehow obtained against Mahlangu and that he was arrested by your Nkwanyana and Mavuso and brought before court". The Director of Public Prosecutions' office in paragraph 2 of their letter of 2/8/01 then wrote: "This action fortifies the belief that these two police officers were acting in a personal vendetta agonist Sergeant J B Mahlangu and misusing the judicial process."

In paragraph 1 of the same letter of 2 August 2001 the Director of Public Prosecutions notes: "No mention was made of the fact that this matter (CAS 179/01/2001) is linked very closely with another matter which this office was ceased with as the time, namely Kwa Mhlanga CAS 217/8/99. a case of corruption against Sergeant Nkwanyana and Mavuso of your unit, of which J B Mahlangu was the investigating officer. Sergeant Nkwanyana is now the investigating officer against J B Mahlangu in CAS 174/1/2001 which already creates a suspicion of retaliation as a result of CAS 217/8/99." CAS 174/1/2001 appears to me to refer to CAS 179/01/2001 as the Director of Public Prosecutions' letter of 2 August 2001 has the CAS no as its heading. The Director of Pubiic Prosecutions M Silas Ramaite in paragraph 3 of the letter then refused to prosecute Sergeant .J B Mahlangu stating : "I have refused to prosecute Sergeant J B Mahlangu on these charges and am of the view that they are being driven by the said two police officers in retaliation for Sergeant Mahlangu having done his duty. I strongly recommend that these actions by these two officers Nkwanyana and Mavuso be investigated and the necessary departmental steps taken. Actions such as these by experienced numbers (sic) of the police only help to further tarnish the image of the SAPS".

[10] It is noteworthy that the second and the third Defendants tried very hard to convince the court that their case KwaMhlanga 217/8/99 was disposed of before the investigation in CAS 179/01/2001 was commenced. The latter CAS 179/01/2001 relates to the corruption case against the Plaintiff. This against the backdrop of overwhelming documentary evidence showing the opposite. The Director of Public Prosecutions' letier of 2 August 2110 fully supports this. What I find striking in this matter is the fact that the Kwa Mhlanga Prosecutor could apply for the J50 warrant of arrest against the Plaintiff knowing fully well that the Director of Public Prosecutions' office was si ill waiting for the required information to enable them to decide to charge or not to charge the Plaintiff. This fact was also well known to the second and the third Defendants yet they acted outside the instructions of the Director of Public Prosecutions' office. The best they could have done would have been to advice the Director of Public Prosecutions" office that the Plaintiff was not co-operating or was refusing to give a warning statement. After all no one is forced to speak as one is always covered by the right to remain silent. This concession was also made by the second Defendant under cross examination. He again conceded that there was no urgency to arrest the Plaintiff. Indeed that urgency according to the facts and the circumstances of the matter never existed. It was the second Defendant's further concession that he had been aware of the agreement between the Director of Public Prosecutions' office and the police that no policeman was to be arrested unless the Director of Public Prosecutions' office so directed. Of course the circumstances of cases differ. This matter, in my view, does not seem to be in the category of cases which fall outside the agreement. The second Defendant conceded that the magistrate had been relieved of his duties and arrested because of corruption. He testified that the Public Prosecutor too had been relieved of his duties because of corruption. The second Defendant testified when cross examined that the Plaintiff was arrested because he had not furnished them with the warning statement. Surely this was not a good enough reason to arrest the Plaintiff given the fact that;

1. There had been no urgency to arrest the Plaintiff;

2. There existed an agreement between the Director of Public Prosecutions' office and the police not to arrest the police unless the Director of Public Prosecutions' office so directed, and

3. The Director of Public Prosecutions' office had been waiting for further information to decide to charge or not to charge the Plaintiff.

This situation, indeed, was worrisome to the Director of Public Prosecutions' office which remarked in its letter of 2/8/01 saying:

''What is more disturbing is that after I had studied CAS 179/1/2001 and ordered further investigation of the matter on 19 February 2001 under my evenly numbered minute and before any decision to prosecute J B Mahlangu was taken by me it was brought to my attention that a J50 warrant was somehow obtained against Mahlangu and that he was arrested by your Nkwanyana (sic) and Mavuso and brought before court."

This clearly shows that the J50 warrant could not have been properly sought and obtained in the circumstances. Evidence supports this. The second and the third Defendants testified that there had been no bad blood between them and the Plaintiff. Evidence, however, proved the opposite. The two Defendants in their testimonies tried but failed dismally to prove that their case which the Plaintiff had investigated against them had been disposed of when they investigated CAS 179/01/2001 opened against the Plaintiff. The two Defendants again gave conflicting evidence regarding:

1. How and where the Plaintiff was arrested.

2. Who had arrested the Plaintiff.

3. Whether or not they had waited for the Plain! iff at court.

4. Whether the Plaintiffs commander Superintendent Boning had visited the said Defendants office to look at the docket pertaining to the Plaintiff as a suspect.

5. Whether or not the Plaintiff had been handcuffed.

The third Defendant faced an uphill in attempting to justify his version that the case against him and the second Defendant had been disposed of when the investigation against the Plaintiff started in light of the vast number of documents that proved the opposite and supported the Plaintiffs version. He ended up telling the court that the documents had

been falsified. It was the third Defendants* contention too that there was no bad blood between him and the Plaintiff yet his (third Defendant) statement forming pages 324 to 329 of the papers shows the opposite. The first paragraph of his statement on page 326 discloses that the Plaintiff had told him that he was a suspect and that he "had to feel pain".

[11] The J50 warrant, in light of the overwhelming evidence supporting the Plaintiffs version in my view, was improperly obtained. The evidence has indeed, revealed that the second and the third Defendants were untruthful and unreliable. H<>w the Prosecutor could have applied for a warrant when the Director of Public Prosecutions' office was already ceased with the matter, is inexplicable. The Public Prosecutor knew this very well and even knew what the Director of Public Prosecutions' office was expecting from them. The Public Prosecutor worked hand in hand with the police and there is, therefore, no reason for the one not to know what the other was doing in the matter. This then strengthens the argument that the office of the .prosecution as well as that of the magistrate had not been very clean. The facts at my disposal do not justify the arrest of the Plaintiff. The Director of Public Prosecutions' office still had to decide whether or not to prosecute the Plaintiff. The Director of Public Prosecutions' office, indeed, had every reason to be disturbed. No one in his sound senses would fail to see what was happening in the case that involved the Plaintiff (i.e. CAS 179/01/01). The lawfulness of the arrest of the Plaintiff cannot be said to have been proved in the circumstances of the Plaintiffs matter.

[12] Indeed, the Plaintiff acquitted himself very well during cross examination, as Mr Ackermann correctly submitted. No serious criticism could be levelled against his evidence and conduct during the events that led to the trial.

[13] The Defendants' version is that the Public Prosecutor had applied for the J50 warrant which the magistrate had granted and on the strength of which the Plaintiff was arrested. Evidence and the facts of the matter have clearly revealed that: 1. The second and the third Defendants initiated the proceedings against the Plaintiff in that: (a), it was clear at the time that the Director of Public Prosecutions' office still had to decide on whether the Plaintiff had to be arrested;

(b). it was the Director of Public Prosecutions' office which had to decide on whether or not the Plaintiff had to be prosecuted:

(c). the Director of Public Prosecutions' office did not participate in the arrest of the Plaintiff. Instead, the Director of Public

Prosecutions' office was disturbed by the arrest of the Plaintiff. This is evident from the remarks of the Director of Public Prosecutions' office on the matter;

(d) Nothing justified the arrest of the Plaintiff

(e) The Senior Public Prosecutor's office was aware that the Director of Public Prosecutions' office had neither decided on the arrest nor his prosecution;

(f) The investigating officer in the case against the Plaintiff should also have known that the Director of Public ' Prosecutions' decision on the Plaintiffs arrest and prosecution was still pending. This, because the Director of Public Prosecutions had ordered that further information be obtained and it was the investigating officer, instructed by the Senior Public Prosecutor, who had to obtain the information.

It is no wonder that the Director of Public Prosecutions' office said that a J50 warrant was 'somehow' obtained against Mahlangu who "was arrested by your Nkwanyana and Mavuso." This, in my view, is indicative of the fact that the Director of Public Prosecutions' office ought to have known about the J 50 warrant if same was properly obtained. The J50 warrant was clearly not properly obtained.

2. There was no reasonable and probable cause for obtaining the warrant.

3. The second and third Defendants were clearly actuated by an improper motive or malice.

4. The proceedings against the Plaintiff were terminated in his favour when the Director of Public Prosecutions' office refused to prosecute the Plaintiff resulting in the withdrawal of the charges against him.

5. The Plaintiff, without the authority of the Director of Public Prosecutions' office, was arrested and detained.

6. The second and the third Defendants were motivated by revenge when the corruption charge was brought against the Plaintiff.

7. The motor vehicle that the Plaintiff was said to have released in a corrupt manner to Lindiwe Msibi Mahlangu was not linked to any theft or robbery. No such proof was produced.

8. The Plaintiff involved his senior Captain Van der Merwe before the motor vehicle was released.

Because of the evidence at the disposal of the court I do not think that the need was there to call the Senior Public Prosecutor to close the alleged lacunae in the Plaintiffs case which was said to be similar to the last missing piece of a jigsaw puzzle. The need, in my view, was just not there.

The fact that the facts of this matter are on all fours with those in Prinsloo and Another v Newan 1975 (1) SA 481 is, in my view, incorrect. The facts of the two cases are indeed, distinguishable. First, the Director of Public Prosecutions' office in this matter clearly had to decide on the arrest and the prosecution of the Plaintiff.

Second, the Director of Public Prosecutions' office was surprised and disturbed when it learnt that t he J50 warrant had 'somehow' been obtained and that that had led to the arrest of the Plaintiff who had been brought before court.

Third, the Director of Public Prosecutions' office refused to prosecute the Plaintiff. Fourth, the Director of Public Prosecutions' raised the anomaly of the second Defendant being an investigating Officer in CAS 179/01/01, a case against the Plaintiff who at the time was the investigating officer in CAS 217/8/99 which was the corruption case against the second and the third Defendants.

Fifth, the Director of Public Prosecutions' office in so many words pointed out that CAS 179/01/01 was clearly motivated by revenge and that the two Defendants 'were acting in a personal vendetta against Sergeant JB Mahlangu and misusing the judicial process'. What else can it be other that that. The Director of Public Prosecutions' office had seen the Plaintiff as someone who had to suffer for 'having done his duty'. This to me, seems to be a proper observation.

Sixth, what makes it worse is that the office of the Prosecution and that of the Magistrate had been tainted by corruption which was being investigated against the two offices. This, as evidence showed, resulted in some of the officers being relieved of their duties.

[15] The facts having established that the J50 warrant was improperly obtained, the Defendants, as Mr Ackermann correctly submitted, cannot and should not be allowed to hide behind it (the warrant). The Plaintiff, indeed, deserves protection from the courts against conduct such as demonstrated by the two Defendants. If the conduct of the two Defendants and the Prosecution had been clean and proper why was the Director of Public Prosecutions' office kept in the dark regarding the existence of CAS 217/8/1999 and CAS 179/01/01 as well as their relationship. Why, instead of providing the Director of Public Prosecutions' office with the required information, was the J50 warrant obtained for the arrest of the Plaintiff and why was such warrant obtained behind the Director of Public Prosecutions' office's back. The J50 warrant was, indeed, improperly obtained.

[16] The Plaintiff has successfully established that:

1. While he was the investigating officer in the case against the second and the third Defendants, the second Defendant supported the third Defendant opened a case against him which, as evidence and Mr Ackermann have shown, established a prima facie probability of revenge.

2. The Director of Public Prosecutions under CAS 217/8/99 (the case against the t wo Defendants) ordered that the two Defendants be prosecuted.

3. The case against both of them was heard on 16 May 2001 when they were acquitted.

4. On 10 January 2001 Captain van der Merwe, the acting commanding officer of the anti corruption unit, after she was approached by the Plaintiff, ordered the release of a 1400 Nissan bakkie to Sophie Lindiwe Msibi.

5. On 14 March 2001 in the morning, the Plaintiff went to Kwa Mhlanga court which, according to him, is approximately 800 metres from the police station for a different case. There he was arrested by the two Defendants who cuffed his hands behind his back. He was caused to walk back to the police station in full view' of members of the public some of whom laughed and remarked. He was taken back to court in handcuffs where he failed to get bail. He was then taken to the police station where he was locked up in a cell with other prisoners who were ordered 'to fuck him up'. The opposite occurred as he defeated the boss of the cell in a fierce battle.

6. His commander rescued him in the evening by taking him to Witbank court where he was released on warning and his case postponed to 27 March 2001.

7. The case was withdrawn against him on 27 March 2001 after the Director of Public Prosecutions' office refused to prosecute him.

8. The arrest was not lawful.

9. The arrest, as Mr Ackermann correctly submitted, was accompanied by malice in the form of revenge. The Plaintiff was, as he put it, 'to be fucked up' in the cell. Fortunately tor him he won the fierce battle that he had with the boss of the cell.

10. The unlawful detention was not for a very long time, but it was as Mr Ackermann put it 'potentially dangerous'.

11. He, highly regarded as a police officer, was arrested, handcuffed and taken to the police station and to court in full view of members of the public who laughed and remarked. He walked the distance of approximately 800 metres from court to the police station. Mis dignity and esteem, according to him, were badly affected and dented. Mr Ackermann submitted and correctly, in my view, that the abuse of power for their own selfish ends by the two Defendants, the fellow police officials, was shocking and hurtful to the Plaintiff.

12. The proceedings were terminated in his favour.

13. He, indeed, has suffered damages for which he must be paid.

[17] The Plaintiffs claim, in an amount to be determined, in the circumstances ought to succeed with costs. The only question which immediately arises is as to how much the Plaintiff is entitled to. Mr Mphaga submitted that in the event that the Plaintiff succeeded with his claim, the amount of R200.000.00 would be excessive and unjustifiable in the circumstances of the Plaintiffs case. The Plaintiff, according to him, was detained for less than a day. Sight, in my view, should not be lost of the circumstances of this case. The parties i.e. The Plaintiff and the two Defendants were fellow police officials. They were colleagues. The arrest was prompted by revenge. Clearly as the Director of Public Prosecutions' office correctly observed this amounted to abuse of judicial process by the two Defendants. This disturbed the office of the Director of Public Prosecutions which recommended that the actions of the Defendants 'be investigated and the necessary departmental steps be taken1 as the actions only helped 'to further tarnish the image of the SAPS.' This clearly shows that this type of conduct is serious and deserves an appropriate sanction. One cannot agree more. The circumstances of this case are such that an award of R20.000.00, as suggested by Mr Mphaga would be unfair and unreasonable. Mr Ackermann, on the other hand submitted that R100.000.00 would be fair and reasonable. An amount of R120.000.00. in my view, having regard to all the circumstances of the case, the degree of malice, the Plaintiffs status, the publicity and the manner and the duration of the detention would be fair and reasonable in the circumstances.

COSTS

[18] In deciding whether the Plaintiff should be awarded High Court costs I had regard to the complexity of the matter, its ambit and the reasonableness of the Plaintiffs decision to have the matter heard by the High Court and not the Magistrate's court. I also had regard to the methods employed by the Defendants in dealing with the Plaintiffs claim i.e. whether they were untruthful and evasive. I, find nothing wrong with the Plaintiffs decision to institute the action in this forum. The Plaintiff, because of the nature and the circumstances of the case, is indeed, entitled to Supreme Court costs. At any rate the award I regard as appropriate in Plaintiffs case is an amount of R 120.000.00.

PRAYER 15.2

Prayer 15.2 relates to interest and does not seem to reflect normal and standard practice. I have therefore had regard to prayer 15.4 in arriving at the order that follows.

ORDER

[19] I. in the result, make the following order:

Judgment is granted in favour of the Plaintiff against the Defendants jointly and severally the one paying the others to be absolved for:

1. Payment of an amount of R120.000.00.

2. Interest thereon at the rate of 15.5% per annum from date of summons to date of final payment.

3. Costs of suit.

M. W. MSlMEKI

JUDGE OF THE HIGH COURT

Heard on: 26 October 2009

For the Plaintiff: Adv. M. F. Ackermann

Instructed by: Erasmus Ferreira & Ackerman c/o Liesl van RerVsburg Attorneys

For the Defendants: Adv. M. Mphaga Instructed by: The State Attorney Judgment delivered on: 09 February 2012

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