Court name
High Court of eSwatini
Case number
Civil Case 1914 of 2002

Dlamini v Swaziland Royal Sugar Company (Civil Case 1914 of 2002) [2003] SZHC 91 (24 September 2003);

Law report citations
Media neutral citation
[2003] SZHC 91
Coram
Nkambule, J









HIGH
CO
URT
OF
SWAZILAND


CIVIL
CASE NO. 1914/02


In
the matter between:


SIPHO
DLAMINI PLAINTIFF


and


SWAZILAND
ROYAL SUGAR COMPANY DEFENDANT


CORAM K.P.
NKAMBULE - J


FOR
PLAINTIFF LUKHELE


FOR
DEFENDANT MAGAGULA


JUDGEMENT


24/9/03


In
this action the plaintiff sues for damages alleged to have been
suffered by him in consequence of his wrongful arrest in August 1995
and his subsequent detention at Simunye Police Station for a period
of between three to four days.


The
plaintiff at the time of arrest was employed by the defendant. In his
particulars of claim plaintiff alleges that on 3rd August 1995,or
shortly thereafter, the defendant falsely and maliciously and without
reasonable or probable cause preferred a charge of theft against the
plaintiff to be arrested by the police on a charge of stealing a
chain block.


As
a result of the defendant setting the law in motion as aforesaid, the
plaintiff was detained in police custody for a period of three days,
whereafter he was released when the police and/or the Director of
Public Prosecutions refused to prosecute the plaintiff.


1


The
plaintiff contends that he has suffered damages as a result of the
defendant's aforesaid conduct in the sum of E80,000- (eighty thousand
Emalangeni).


Plaintiff
gave evidence under oath. He told the court that on the day of the
disappearance of the chain block he started work in the evening as he
was to relieve his colleague who was working during the day, a
certain Mazibuko.


Plaintiff
told the court that the procedure at the change of shifts is that the
person who has been on duty hands over the company property and that
includes the tools and other valuable company property. He said on
the day in question Mr. Mazibuko told him that there was a chain
block upstairs but he did not go with plaintiff to show him the exact
location of the chain block. After Mazibuko was gone plaintiff could
not find the chain block. He then reported this to his supervisor.
The matter was eventually reported to the company security who
interrogated both Mr. Mazibuko and the plaintiff and eventually
called the police to investigate.


During
the interrogations it transpired that the plaintiff had stolen what
Mazibuko said was company property and transported it to Hlatikulu
his parental home. Police in the company of Joseph Dlamini, one of
defendant's security officers, proceeded to Hlatikulu in the company
of the plaintiff.


On
arrival at Hlatikulu some property belonging to plaintiff was taken
by police. According to plaintiff the items were pointed out and
identified by Joseph Dlamini as belonging to the company. The items
were transported to Simunye Police Station. Defendant's employee
failed to identify these items as belonging to the company.


On
the following day the chain block was recovered by the defendant. It
was found deposited in the very same place where Mazibuko said he had

left
it. At the time of its recovery the plaintiff and Mr. Mazibuko were
in police custody.


As
a consequence Mazibuko was released. Plaintiff was charged for theft
of the items fetched from Hlatikulu. The matter went to court for
trial. On trial date the defendant failed to come to court as
witnesses. The matter could not proceed and the magistrate made an
order that the items be returned to plaintiff.


The
defendant's case is that it only reported and placed information
related to the theft of its chain block to the police. Subsequent
investigations by the police led to the arrest of the plaintiff by
the police on reasonable suspicion of theft of the chain block.


2


Defendant
witness Raymond Matsenjwa told the court that the theft of the chain
block was reported to him and that he exercised his discretion and
arrested both the plaintiff and Donald Mazibuko on reasonable
suspicion of theft of the chain block. This witness further told the
court that he released Mazibuko after he received a report that the
chain block had been found. He said the reason he retained the
plaintiff was because he was facing the charge of theft of the other
items. He further told the court that he was at the forefront of
investigations of both alleged offences.


The
law which has to be applied in the aforementioned facts is as
follows:


In
order for the plaintiff to succeed in an action such as this one, he
must establish:


a) That
the defendant set the law in motion (ie. Instituted the proceedings;


b) That
it acted without reasonable and probable cause;


c) That
it was actuated by an indirect or improper motive (malice).


Regarding
a) above the plaintiff must allege and prove that the defendant
instituted the proceedings or instigated them. The placing of a
complaint of theft to the police as a result of which proceedings are
instituted is insufficient.


See
Lederman Vs Moharah Investment (Pty) Ltd 1969 (1) SA 190 (A) at 196 -
7

Where
a complainant makes a statement to the police which is willfully
false in a material respect but for which no prosecution could have
taken place, he instigates a prosecution and may be personally
liable.


The
plaintiff must therefore allege and prove that the defendant
instituted proceedings without reasonable and probable cause.
Reasonable and probable cause means an honest belief founded on
reasonable grounds that the institution of proceedings is justified.


Where
a person merely gives a fair statement of the facts to the police and
leaves it to the latter to take such steps thereon as they deem fit
and does nothing more to identify himself with the prosecution, he is
not responsible in an action for malicious prosecution, to a person
whom the police may charge. But if he goes further and actively
assists and identifies himself with the prosecution he may be held
liable. "The test is whether defendant did more than tell the
detective the facts and leave


3


him
to act on his own judgement", per Bristowe, J, in Bater Vs
Chrisiane, 1920 WLD 14.


The
question that this court must answer is whether the defendant did
more than tell the police the facts and leave him to act on his own
judgement.


From
the foregoing facts the defendant reported to the police the
disappearance of the chain block. This was after a thorough search
was conducted. The defendant only gave information surrounding the
disappearance of the said chain block.


Police
arrested plaintiff and Mr. Mazibuko on reasonable suspicion of theft
of the chain block. In arresting the plaintiff police were exercising
their discretion in terms of Section 22 (b) of the criminal procedure
and evidence act.


The
defendant made a genuine complaint to the police after its property
which was entrusted to both plaintiff and Mazibuko went missing. It
is therefore the opinion of this court that the defendant did no more
than tell the police the facts relating to the disappearance of the
machine. By arresting plaintiff and Mazibuko the police acted on
their own judgement in order to further their investigations.


It
is therefore the opinion of this court that the plaintiff has not
succeeded in discharging the onus resting on him. Judgement is
therefore entered against the plaintiff with costs.


K.P.
NKAMBULE


JUDGE


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