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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED.

 

CASE NO.: 88931/18

 

 

 

In the matter between:

 

M G LEDWABA	Plaintiff
And
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT   THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS   THE HEAD OF THE SPECIALIZED CRIMES COURT UNIT - PRETORIA	First defendant     Second defendant   Third defendant

 

 

JUDGMENT

 

 

van der Westhuizen, J

 

[1]        The plaintiff claimed damages from the defendants on a cause of action premised upon malicious prosecution. The plaintiff was charged in the Regional Court, Pretoria, with the commission of various offences relating to alleged fraudulent conduct, or theft. There were two criminal trials. In respect of the first trial, the presiding regional court magistrate recused himself, after evidence was led before him, and prior to the finalisation of the matter. The trial had to commence de novo before a new regional magistrate. In the second trial, the plaintiff was found guilty on a number of charges. On appeal to a full court, the plaintiff was acquitted. The claim for damages ensued due to his acquittal. At the commencement of the matter, the parties agreed to separate the issue of liability and quantum. I ruled on a separation of those issues.

 

[2]        The action came before me. It was heard over a number days staggered over periods due to various circumstances that arose. The hearing of the matter commenced during June 2020 and was finally concluded during July 2021. Argument on behalf of the parties was concluded on 5 August 2021 when judgment was reserved. Due to the complexity of the evidence, the large volume thereof, and further due to the high volume of matters to be heard in this Division, the finalisation of this judgment was extended over a long period.

 

[3]        I do not, in this judgment, intend to regurgitate the voluminous evidence led. It would serve no purpose. Only the relevant evidence will be dealt with in the appropriate manner.

 

[4]        The plaintiff was an admitted advocate and employed as a prosecutor. During the relevant period, he was employed by the first defendant, initially in the office of the second defendant, with the rank of Investigative Director. He was subsequently assigned to the office of the third defendant as Deputy Head of the Directorate of Special Operations.

 

[5]        Incidents of alleged abuse or mismanagement of funds in the so-called C-Fund accounts were revealed. Internal investigations were undertaken that commenced in respect of two officers in the Eastern Cape offices of the second defendant. Those investigations were with reference to operations in that office falling under similar units such as that of the third defendant. The monies in the C-Fund accounts were utilised by the offices such as that of the third defendant, to fund operations undertaken by those offices flowing from their duties. In particular the C-Fund was for the purpose of paying informers or sources of information in respect of operations of offices such as the third defendant, who were colloquially known as the Scorpions. The C-Fund was administered in terms of certain regulations and internal policies. The internal investigation that commenced in the Eastern Cape eventually extended to the office of the third defendant. Certain allegations were investigated by the Integrity Monitoring Unit (IMU) of the third defendant and inter alia involved the plaintiff. The investigations were aimed at determining whether any untoward or unlawful actions were taken by its members regarding the C-Fund.

 

[6]        During 2005, certain information was gathered that led to an internal disciplinary investigation. A number of anomalies were detected in respect of the handling of the third defendant’s C-Fund account. The plaintiff was suspected of misconduct relating to the C-Fund. He was to face disciplinary charges. Due to his resignation with effect from 31 July 2005, the disciplinary charges were not continued with, and no disciplinary hearing in respect of the plaintiff ensued.

 

[7]        In view of the outcome of the investigations by the IMU, the matter was referred to the South African Police Services (SAPS) to investigate possible criminal charges against the plaintiff. He was no longer an employee of the defendants and no internal disciplinary hearing could follow. In that regard, the docket included various affidavits obtained and further included the disciplinary investigations. The docket further contained a report compiled by Price Waterhouse Coopers. The latter report revealed a general shortage between monies from the C-Fund advanced to the plaintiff and his reimbursements thereof to the C-Fund. It was common cause that the information contained in the said docket was the alleged basis for the number of charges levied against the plaintiff, albeit that the plaintiff contended throughout that no legal basis had been provided by that information to support any charge to be laid against him.

 

[8]        It was common cause, inter alia, that the plaintiff was prosecuted on 13 October 2006 for fraud and theft and that such prosecution was instituted at the instance of the second defendant. It was further common cause that in instituting the prosecution proceedings, the relevant officials of the second defendant acted within the course and scope of their employment with the second defendant.

 

[9]        Apart from a plea that the joinder of the first defendant in the action constituted a miss-joinder of a party to proceedings, the main disputes centred upon the allegations relating to the charges being laid against the plaintiff, and his subsequent prosecution. The plea was premised upon various statutes defining the second defendant as an independent entity that operated separately from the first defendant and consequently not within the latter’s jurisdiction. Not much turned on that plea. The second defendant would be liable for any order granted against it in respect of any award made in favour of the plaintiff. So would the second defendant be liable for any award made against the third defendant in view of its structure within the second defendant’s jurisdiction.

 

[10]     The two main disputes referred to above related to: firstly, the specific officials named in the particulars of claim, acted unlawfully and maliciously in prosecuting the plaintiff on alleged false charges of fraud and theft; and secondly, that, when laying the said charges, the second and third defendants had no reasonable or probable cause for doing so, and neither had they a reasonable belief in the truth of the information of a criminal offence having been committed by the plaintiff.

 

 

[11]     The contentions relating to the two main disputes referred to above, were premised upon the prior tension that arose between the plaintiff, on the one hand, and the then head of the second defendant, Mr McCarthy, and other personnel within the second defendant. That tension gave rise to an acrimonious situation. Various meetings were held where the tension was further fuelled.

 

[12]     It was the plaintiff’s contention that his appointment within the third defendant was the basis for the acrimonious situation that arose and that he was targeted by his opponents. In the plaintiff’s view, their obvious dislike of him led to the charges being laid against him and his prosecution that followed. He was further of the view that no basis existed for the laying of any charges against him. The charges were allegedly proffered out of pure malice and based upon false charges of fraud and theft. The plaintiff perceived that a conspiracy against him existed and that it had been induced by Mr McCarty. The perception was further that the said Mr McCarthy had roped in various other officials to be part of the perceived conspiracy. The plaintiff was of the view that some of those officials were instructed by the said Mr McCarthy to actively give effect to the perceived conspiracy. Much of the plaintiff’s contentions raised in this matter were premised purely on his perceived conspiracy. No concrete or substantial evidence was produced by the plaintiff in that regard. It remained his summation. In my view, no inference could be drawn from the plaintiff’s contentions of the existence of a conspiracy as will appear from what follows.

 

[13]     The plaintiff further contended that the team that was appointed to prosecute him, were hand-picked by Mr McCarthy, with the sole purpose of having him convicted in fulfilment of the perceived conspiracy. However, Mr Chris Jordaan SC, the then head of the Specialised Commercial Crime Unit for Pretoria (and later South Africa), appointed the prosecuting team. Mr McCarthy had no direct contact with, or involvement in, the Specialised Commercial Crime Unit. That team consisted of Ms Beytenbach, a senior prosecutor, Mr van Zyl, a very experienced prosecutor and Ms Nkuna-Nyoni. Ms Breytenbach was to lead the prosecuting team. All were employed within the Special Commercial Crime Unit to prosecute such matters allocated to that unit.

 

[14]     In the first trial, a total of 25 charges were put to the plaintiff. The underlying premise being that of fraud or theft relating to the disbursement of C-Funds and the repayment thereof by the plaintiff. Due to the regional magistrate having recused himself, the trial came to naught. The plaintiff was subsequently indicted de novo. The indictment contained initially the same charges as in the first trial. However, at the commencement of that trial, a number of the charges were not proceeded with and new charges were added. A total of 15 counts of theft and fraud were put to the plaintiff. Likewise, as in the first trial, the plaintiff denied the charges. He pleaded not guilty and no plea explanation was forthcoming. The plaintiff represented himself at both the trials in the regional court. In between the two trials, the plaintiff made several representations in respect of the charges against him, explaining his conduct that allegedly led to the charges being laid. According to the plaintiff, those representations, came to naught, an alleged further indication of the alleged biasness and malice towards him.

 

[15]     In the second trial, the prosecuting team consisted of the said Mr van Zyl, who led the prosecution, Ms Nkuna-Nyoni and a new member to the team, Mr Rampararant. At that stage, Ms Breytenbach was suspended due to internal investigations unrelated to the prosecution of the plaintiff. The plaintiff however contended that she was part and parcel of the team that drafted the charges in respect of the second trial, in that the same charges were contained in the initial charge sheet of the second trial, prior to the amendment to the charge sheet where a number of charges were dropped and others added. When the second trial commenced, Mr McCarthy was no longer with the second defendant and had taken up a position in the United States of America. He was by then no longer involved with the second defendant. This was common cause. It was undisputed that Mr van Zyl, together with Ms Nkuna-Nyoni, decided to commence de novo and that Mr van Zyl considered which charges were to be put to the plaintiff. Non constat that Ms Breytenbach remained in the loop.

 

[16]     The plaintiff was of the consistent view that the charges were trumped up and were intended to prosecute him at all cost. That intention allegedly flowed from the animosity he experienced within the offices of the second and third respondents. It was the plaintiff’s perception that Mr McCarthy and Ms Breytenbach had conspired to lay false charges against him. The plaintiff’s continued perception throughout his evidence was that none of the charges were drafted in the appropriate manner, and lacked the required factual and/or legal basis for such charges. All this, so contended the plaintiff, was indicative of the malice afforded him by the second respondent through the prosecuting teams. The said teams were allegedly hand-picked to achieve his downfall through the aimed prosecution, if not persecution, of him.

 

[17]     In the second trial, the regional magistrate convicted the plaintiff on 6 of the charges. The plaintiff succeeded in terms of the provisions of section 174 of the Criminal Procedure Act, 75 of 1977 (the CPA), to be discharged on 9 counts. His application in terms of section 174 of the CPA was supported by the State through Ms Nkuna-Nyoni, the lead prosecutor. He was acquitted on 2 charges. The plaintiff was sentenced to 10 years imprisonment. Subsequently, as recorded earlier, the plaintiff was acquitted on all charges by a Full Bench of a Court of Appeal.

 

[18]     It is common cause that following upon the plaintiff’s arrest, the first trial commenced during 2006 and ended on 31 May 2010 when the regional magistrate recused himself. The second trial commenced during October 2012. The second trial ensued upon a decision by Mr van Zyl and Ms Nkuna-Nyoni that the trial should commence de novo following on the first regional magistrate’s recusal as recorded earlier. It is common cause that the plaintiff made representations to the second defendant in respect of the charges laid against him. As recorded earlier, the representations were unsuccessful. Those representations were declined by different National Directors of Public Prosecutions, who served consecutively in that capacity. The representations were made in the period between the two trials.

 

[19]     It will be prudent to restate the principles and requirements for a successful claim premised upon malicious prosecution. The locus classicus in this regard remains the judgment of Beckenstrater v Rottcher & Theunissen.[1] The requirements are:

 

(a)      The setting of the law in motion by the instigation or institution of the proceedings at the defendant’s instance;[2]

 

(b)      Lack of reasonable or probable cause;[3]

 

(c)       Malice and Animus iniuriandi;[4]

 

(d)      Termination of proceedings.[5]

 

[20]     All the aforementioned requirements are to be alleged and proven. It follows that if any one of the foregoing requirements are not met, the action cannot succeed.

 

[21]     As recorded earlier, only two of the four aforementioned requirements require determination. It was common cause that the first and fourth requirements were met. The defendants conceded that they had set the law in motion. That originated by the internal investigation into the dealings of the C-Funds within the Directorate of Special Operations as detailed earlier. It was further common cause that the proceedings were terminated in the plaintiff’s favour when he was acquitted by a court of appeal on all charges on which he was convicted. Thus, only the second and third requirements required determination.

 

[22]     The third requirement referred to above consists of two elements, namely that of maliciousness and an animus iniuriandi. Both are to be proven.

 

[23]     The plaintiff’s contention in respect of malice, was entirely premised upon his perception of the existence of a conspiracy, induced by Mr McCarthy who used his apparent lackey, Ms Breytenbach, to prosecute the plaintiff. When it was put to the plaintiff in cross-examination that Ms Breytenbach took her instructions in respect of commercial crime matters from Mr Jordaan SC, and not Mr McCarthy, the plaintiff did not respond thereto. The plaintiff merely responded in an evasive manner. The plaintiff further conceded in cross-examination that at the time of his prosecution, neither Ms Breytenbach, nor Mr van Zyl, nor Ms Nkuna-Nyoni were employed by the Directorate of Special Operations, but by the Special Commercial Crime Unit.

 

[24]     Mr van Zyl testified, and this was not seriously challenged by the plaintiff, that initially he did not agree with the manner in which some of the initial charges were drafted. He further testified that when he decided, together with Ms Nkula-Nyoni, to commence de novo with the prosecution of the plaintiff (in the second trial), he decided to remove a large number of the initial charges, but added others. That was done of his own volition. As recorded earlier, the initial 25 charges in the first trial were reduced to 15 in the second trial, those separately decided upon by Mr van Zyl.

 

[25]     It is contended on behalf of the plaintiff, that the alleged dropping of the initial charges against the plaintiff resulted in the termination of the first trial in favour of the plaintiff. A number of authorities were relied upon. Those authorities are of no application in the present instance. In all those matters, the charges were dropped and the matters did not proceed further. In Els v Minister of Law and Order et al[6] it was held that malicious prosecution will only arise where there has been an acquittal or when a decision is taken not to prosecute. Furthermore, there was no decision in any of those matters to prosecute further.

 

[26]     In the present matter, the first trial could not proceed due to the aforementioned recusal of the regional magistrate. That prosecution came to naught. The plaintiff could not have been acquitted. The matter simply fell away. It was conceded on behalf of the plaintiff that the first trial ended inconclusively upon the recusal of the then presiding regional court magistrate. The decision to start de novo was made independently by Mr van Zyl and Ms Nkuna-Nyoni and at a later stage. It was further decided to proceed on a different and new indictment to which the plaintiff was required to plead.

 

[27]     Furthermore, the conduct of the plaintiff subsequent to the first trial and its demise, points in another direction. Had the plaintiff regarded the ending of that trial to have been decided in his favour, he would have commenced with this action. Instead, the plaintiff made various representations to the second defendant. He was clearly under the impression that the prosecution may proceed further. He himself was a trained prosecutor with considerable experience. That concession in my view puts an end to any enquiry in respect of the first trial. Accordingly, only the second trial requires consideration.

 

[28]     It was common cause that Mr van Zyl, at his own request, was removed from the prosecution team in the second trial. His removal was due to an incident that occurred about 4 – 5 days into the second trial, when Mr van Zyl suspected that the plaintiff was involved in that incident that could have compromised his position vis-à-vis the plaintiff in the said trial. That much was conceded by the plaintiff.

 

[29]     The plaintiff readily conceded and testified that he had a cordial relationship with Mr van Zyl, in particular during the trials. During adjournments they would have a tete-a-tete and were certainly on a good footing. There was no adverse relationship between them. The plaintiff conceded that he, Mr van Zyl and Ms Nkuna-Nyoni became acquainted since 2006 and onwards during the trials. Neither of the two prosecutors knew him prior to the commencement of the first trial. The plaintiff further conceded that he never suspected either Mr van Zyl, or Ms Nkuna-Nyoni of being biased or had shown any malice towards him. This is borne out by the aforementioned cordial relationship with Mr van Zyl and the fact that the latter withdrew from the second trial due the possible compromised situation mentioned above. Had Mr van Zyl held any malice towards the plaintiff, or an intent to harm him, he would not have withdrawn from the case in the second trial. He would further not of his own volition remove some charges laid against the plaintiff in the first trial. Ms Nkuna-Nyoni supported the plaintiff’s application in terms of section 174 of the CPA. It follows, that had she held a grudge, or any malice, or an intention to harm the plaintiff, she would have vehemently opposed that application and not have supported it. The plaintiff conceded in cross-examination that he only really met Ms Nkuna-Nyoni during the second trial.  He further accepted that initially she was to lead the evidence of some of the witness. From the foregoing, no inference of any malice or intention to harm stands to be drawn. The plaintiff’s aforesaid concession puts paid to the drawing of an inference of malice or intention to harm.

 

[30]     Furthermore, sloppy drafting of a charge can hardly qualify as showing malice or an intent to harm. A redrafting of a charge sheet can neither qualify as malice or an intent to harm. It is a common procedure.

 

[31]     In follows that the plaintiff had not proven the elements of maliciousness and an animus iniuriandi as he was obliged to do. His aforementioned concession in that regard puts paid to that issue. No basis had been laid that those elements should be inferred.

 

[32]     Where the plaintiff failed to prove the requirements of maliciousness and an animus iniuriandi, it would serve no purpose to consider whether the plaintiff has proven the requirement of reasonable or probable cause. The plaintiff is obliged to prove all four of the requirements, and should he fail to prove one of those, he cannot succeed in his action for malicious prosecution.

 

[33]     Accordingly, the action stands to be dismissed.

 

[34]     There remains the issue of costs. No submissions were made that the general principle that costs follow the event should not be applied. Both parties employed more than one counsel. The defendants employed three counsel, of which one was a senior counsel. The plaintiff employed two counsel, both senior counsel. In my view, there is no reason to award the costs of three counsel.

 

I grant the following order:

 

The action is dismissed with costs, such costs to include the costs occasioned by the employment of two counsel.

 

 

 

 

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

 

 

 

Dates of Hearing:                 1-19 June 2020 & 1-2 February 2021 and 19, 20 & 22 July 2021 and 28 & 30 July 2021 and 5 August 2021

 

On behalf of Plaintiff:         B P Geach SC

                                            M Snyman SC         

Instructed by:                      K S Dinaka Attorneys         

 

On behalf of Defendants:   P J de Jager SC

                                            C Ngoepe

                                            H Mpshe       

Instructed by:                      State Attorney

 

Judgment Delivered:           03 December 2021 

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