MALICIOUS PROSECUTION

Mdlalose and another v Minister of Police and another [2016] 4 All SA 950 (WCC)

Criminal law – Malicious prosecution – Plaintiffs required to allege and prove that the defendants set the law in motion or instituted proceedings; acted without reasonable and probable cause; acted with malice (animo injuriandi); and the prosecution failed.

Criminal procedure – Arrest and detention – Arrest without warrant – Arrest without a warrant would be justified if the following jurisdictional facts are present: the arresting officer is a police officer; he entertains a suspicion; the person arrested must be suspected to have been committing a Schedule 1 offence; and the suspicion must be based on reasonable grounds – Once jurisdictional requirements are present, the peace officer may invoke the power conferred on him by section 40(1)(b) of the Criminal Procedure Act 51 of 1977 and arrest the suspect, but he is not obliged to arrest, and has a discretion in that regard – Test regarding whether the peace officer reasonably suspects a person to have committed an offence is an objective one.

Criminal procedure – Rights of accused – Section 35(1)(d) of the Constitution provides that a person has a right to be brought before a court as soon as reasonably possible but not later than 48 hours after arrest; or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day – Detention of plaintiffs after expiry of 48 hours, without having appeared in court, held to be unlawful.

Two matters were consolidated by agreement between the parties, as the issues pertaining to the action arose at the same time, involving the two plaintiffs. The parties having agreed to separate the issue of merits from the quantum, the matter accordingly proceeded on merits only.

The plaintiffs were arrested in November 2012 by members of the South African Police Service acting within the course and scope of their employment with the first defendant. They were subsequently detained and charged with house robbery. They remained in custody until 19 March 2013 when they were released after charges were withdrawn. Pursuant thereto, they brought an action for damages against the defendants on the basis that they were wrongfully and unlawfully arrested, unlawfully detained by the police and maliciously prosecuted.

The defendants denied allegations of wrongfulness and unlawfulness and alleged that the arrest and detention were carried out in terms of sections 40(1)(b) and section 50(1) of the Criminal Procedure Act 51 of 1977 (the “Act”). They further denied any malice in the prosecution of the plaintiffs, alleging that the charges against the plaintiffs were withdrawn provisionally pending further investigation.

Held – The issue to be determined was whether the arrest of the plaintiffs and further detention were lawful and whether their prosecution was malicious. Key to the determination was whether the police officers acted within the bounds of sections 40(1)(b) and 50(1) of the Act, and whether the plaintiffs meet the threshold set for malicious prosecution to be proved.

It is the duty of peace officers to ensure that those suspected of committing crimes against society are brought to justice. Prompt action is often necessary when an opportunity to catch suspects who have committed serious crimes may be lost and the police might later be blamed for not taking action when information relating to the suspects was given by members of the community. A balance is, however, required in that a police officer should keep an open mind and be alive to the possibility that the information he may have may not be sufficient to meet the requirements set by law as to when an arrest without a warrant can be effected.

Section 12 of the Constitution guarantees everyone the right to freedom and security including the right not to be deprived of freedom arbitrarily or without just cause and not to be detained without trial.

Arrest without a warrant would be justified if the following jurisdictional facts are present: the arresting officer is a police officer; he entertains a suspicion; the person arrested must be suspected to have been committing a Schedule 1 offence; and the suspicion must be based on reasonable grounds. Once those jurisdictional requirements are present, the peace officer may invoke the power conferred on him by section 40(1)(b) and arrest the suspect. However, he is not obliged to arrest, and has a discretion in that regard.

The onus to prove the lawfulness of the arrest lay with the arrestor, in this case the first defendant. The test regarding whether the peace officer reasonably suspects a person to have committed an offence is an objective one.

It was not in dispute in this case that the arresting officer was a police officer acting within the course and scope of his employment with the first defendant. The question was whether the arresting officer formed a suspicion that a Schedule 1 offence was committed, which suspicion rested on reasonable grounds, before effecting the arrest. The Court found no basis for such suspicion on the part of the arresting officers. Although the plaintiffs were identified in a photo album after they had been arrested, that was ex post facto, and did not justify the initial act of unlawful arrest as the arrest that occurred in terms of section 40(1)(b) of the Act. The arrests were, therefore, not lawful.

Section 35(1)(d) of the Constitution provides that a person has a right to be brought before a court as soon as reasonably possible but not later than 48 hours after arrest; or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day. Section 50(1)(d) of the Act has the same effect. The detention of the plaintiffs after the expiry of 48 hours, without having appeared in court, was therefore unlawful in this case.

The onus of proving that their prosecution was malicious lay with the plaintiffs. They were required to allege and prove that the defendants set the law in motion or instituted proceedings; acted without reasonable and probable cause; acted with malice (animo injuriandi); and the prosecution failed. The plaintiffs could not prove any of the required elements except to show that the prosecution was withdrawn, which in itself was not sufficient to overcome the hurdle.

The first defendant was held liable for the damages which plaintiffs might prove as having been suffered as a result of their unlawful arrest and their subsequent detention prior to their first appearance in court. The claim based on malicious prosecution was dismissed.

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