CASE NO
REPORTABLE
CASE NO.: I 2619/2006
IN THE HIGH COURT OF NAMIBIA
In the matter between:
ENGELHARD
AKUAKE PLAINTIFF
and
JANSEN VAN RENSBURG
DEFENDANT
CORAM: DAMASEB, JP
Heard on: 4th
– 5th
February 2009
Delivered on: 9th
February 2009
________________________________________________________________________
JUDGMENT
DAMASEB, JP:
[1] This case raises the issue whether liability should attach to a
victim of a crime who asks the police to investigate and establish
the identity of the perpetrator(s) of the crime – when the police
without diligent investigation- arrest a suspect who is then detained
but has the criminal proceedings terminating in his favour.
[2] The plaintiff was arrested
on 17 November 2004 and spent 32 days in custody awaiting trial
because he was unable to pay bail in the amount of N$5000. He made
several appearances in court and the case against him was finally
withdrawn on 28 June 2005. He now claims N$277 200.00 from the
defendant for wrongfully
and maliciously setting the law in motion by laying a false charge of
theft of two zebra skins
against the plaintiff. It is then alleged that because of the
defendant’s conduct the plaintiff was arrested and detained for 32
days until he was admitted to bail. The defendant denied all these
allegations and specifically pleaded that he reported
the matter to the Namibian police for further investigation.
[3] To sustain a claim based on
malicious criminal proceedings the plaintiff must allege and prove:
(i) that the defendant actually
instigated or instituted the criminal proceedings;
(ii) without reasonable and
probable cause; and that
(iii) it was actuated by an
indirect or improper motive (malice) and;
(iv) that the proceedings were
terminated in his favour; and that
(v) he suffered loss and
damage:
Lederman v Moharal
Investments (Pty) Ltd 1969(1)
SA190 (A)190-196 G-H.
[4] As regards (i) above, it is
trite that the mere placing of information or facts before the
police, as a result of which proceedings are instituted, is
insufficient to found liability for malicious prosecution. In
Waterhouse v Shields,
1924 C.P.D. 155 at
p. 160 Gardiner J said:
“The
first matter the plaintiff has to prove is that the defendant was
actively instrumental in the prosecution of the charge. This is a
matter more difficult to prove in South Africa, where prosecutions
are nearly always conducted by the Crown, that it is in England,
where many cases are left to the private prosecutor. 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 liable. “The test”, said
BRISTOWE, J, in Baker
v Christiane, 1920
W.L.R. 14, is whether the defendant did more than tell the detective
the facts and leave him to act on his own judgment!” (My
underlining)
And Price J, in Madnitsky
v Rosenberg 1949 91)
P.H. J5, said:
“when
an informer makes a statement to the police which is willfully false
in a material particular, but for which false information no
prosecution would have been undertaken, such an informer “instigates”
a prosecution.”
(Cited with approval in
Lederman supra at
197 C-D.)
Synopsis
[5] The defendant is the sole
member of a Close Corporation called Otjiwarongo
Taxidermy CC (the
Taxidermy)
which owns and operates a factory in Otjiwarongo. The plaintiff was
employed by the Taxidermy at the material time. The defendant does
not personally run the Taxidermy as he lives on a farm outside
Otjiwarongo. The business is run and managed for him by Ms Sylvia
Janbey who was the supervisor of the plaintiff and the other
employees working at the Taxidermy at the material time.
[6] On 10 November 2004, an
employee (since deceased) of the defendant’s Taxidermy became
suspicious that some skins were missing from the Taxidermy at
Otjiwarongo. That suspicion was well-founded because on 15 November
2004, the manageress of the Taxidermy (Sylvia Janbey) received a call
from one Ms Spangenberg employed at Nakara in Windhoek that two
Herero men came there that day wanting to sell 2 zebra skins bearing
the Taxidermy’s distinctive branding. The two men fled when
Spangenberg became suspicious. Janbey subsequently retrieved the two
stolen zebra skins from Nakara’s Spangenberg on 16 November 2004.
The images of the two men who attempted to sell the stolen zebra
skins to Nakara were captured on CCTV. This video footage was made
available to the police. The plaintiff was in the employ of the
defendant for a period of about 2 years before his arrest on 17
November 2004 on suspicion of theft of the 2 zebra skins of his
employer.
[7] On 17 November 2004, the
defendant came to the Taxidermy. The plaintiff’s case is that the
defendant upon arrival demanded to know who had stolen the two zebra
skins. The plaintiff protested his innocence whereafter the
defendant, in the plaintiff’s presence, told the other employees
that only those who told the truth would receive their annual
bonuses. The defendant at some stage had a conversation with the
other employees about the theft of the zebra skins. That same day,
the plaintiff testified, police arrived, questioned the other
employees and the defendant and invited him to the police station
where he was arrested for theft. Being unable to pay bail of N$5 000
he was detained for 32 days until his release on 17 December 2004,
when through the intervention of a legal practitioner, his bail was
reduced to N$2000 which he paid and thus secured his release.
The plaintiff’s case
[8] The plaintiff testified
that when the defendant came to the Taxidermy on 17 November 2004 he
jumped out of the car and approached him (plaintiff) in an aggressive
manner and demanded to know who had taken the skins. The plaintiff
testified that his response was that he did not know who took the
skins, but that it was not he. Thereafter the defendant went to
speak to the other employees at the back of the building, returned to
the plaintiff and asked if he had taken the skins. Upon his denial
that he knew anything about the skins, he testified, the defendant
told him that if he did not tell the truth he was going to ‘sleep
in prison’ – a threat the defendant allegedly made twice. At a
later stage and also in the presence of the other workers, the
defendant allegedly said that he had reported the matter to the
police and that only employees who gave statements to the police
would to get their bonuses. The police then arrived at the Taxidermy
sometime in the afternoon while the defendant was present.
[9] The plaintiff further
testified that when the police came to the Taxidermy they took
witness statements from some of his other colleagues. It was, on the
strength of these, he says, the police told him that they had
sufficient evidence implicating him of theft of the two zebra skins.
The plaintiff also testified that while incarcerated and awaiting
trial, he asked one police officer to accompany him to see the
defendant. He then in the presence of this police officer asked the
defendant to withdraw the case against him as he was innocent. He
added that the defendant refused to do so unless the plaintiff told
the truth and that the defendant said he was prepared to pay the
bail money on behalf of the plaintiff if the latter confessed.
[11] The fact of the matter is
that the plaintiff was arrested on the strength of statements made by
5 of his former colleagues implicating him in the theft of the
defendant’s skins. He says as much himself when he says that the
police told him that they had evidence implicating him.
It is common cause that the
police took five statements from the employees (co-workers of the
plaintiff) on 17 November 2004 and another statement from the
defendant. One of the statements is that of Elvis Kairii who died in
November 2007. An objection was raised by Dr Akweenda to the
admissibility of the statement on the basis it was hearsay as the one
person was dead and the others were not to be called as witnesses. I
overruled the objection because the statement was relevant and
admissible, not for the truth of what is stated therein, but to prove
the fact it was made.
[12] Under the common law rule
against hearsay, an out-of-court statement by a person not called as
a witness is inadmissible as evidence of any fact or opinion
contained in it. But if the statement is tendered for any relevant
purpose other than that of proving the truth of its contents, it is
original rather than hearsay evidence and accordingly admissible.
Examples of original evidence may be classified according to whether
the making of the statement in question is either (a) itself a fact
in issue in the proceedings, or (b) relevant to a fact in issue in
the proceedings. (T v
Miller 1939 AD 106
at119; S v Brampton
1976 (3) SA 236 (T); S
v De Conceicao 1978
(4) SA 186 (T); S v
Holshausen 1984 (4)
SA 852 (A) at 624.) In the matter at hand it is an issue whether it
was the defendant or other persons who implicated the plaintiff in
the theft that led to his arrest and detention. That other people
made statements to the police on the basis of which the latter acted
is, therefore, a fact in issue in these proceedings. The statements
received as C-1 to C-5 are therefore not hearsay as they are not
being received to prove the truth of what is therein alleged, but
because they are relevant to a fact in issue in the proceedings- who
implicated the plaintiff?
[13] The gist of Kairi’s
sworn statement is that on 10 November he saw the plaintiff standing
next to Bank Windhoek, Otjiwarongo carrying a black bag. He asked the
plaintiff what he was doing there whereupon the plaintiff said he was
on the way to have his clothes washed. When Kairi returned to the
Taxidermy he noticed that the plaintiff’s clothes were in a box at
the Taxidermy. He became suspicious and called four of his colleagues
to show them the plaintiff’s clothes. The suspicion was aroused by
the fact that the plaintiff’s clothes were in the Taxidermy while
he said he was going to have them washed. Kairi suspected that the
plaintiff took something from the factory. He took stock of the zebra
skins and established that two zebra skins were missing. He repeated
his suspicion that skins are missing to his colleagues the next day.
He was vindicated when Janbey received a call that two zebra skins of
the Taxidermy were brought to Nakara by two men wanting to sell them.
[14] Another employee, Charlie
Nashivela, in her sworn statement confirmed that Kairi expressed his
suspicion about the plaintiff to her. She added that she also came to
suspect the plaintiff because he came with a bag full of clothes to
work, but at the end of the day the bag was not there while his
clothes were left in the factory. In her statement she says that she
wants a police investigation of the matter. One Erwin Nawaseb also
confirmed Kairi voicing his suspicion about the plaintiff. He
confirmed that after taking stock with Kairi they found two zebra
skins missing. One Uiras Rosalia also confirmed what Kairi said about
the plaintiff. She added that when the plaintiff brought the bag to
the Taxidermy one Lea established that there were uniforms in it.
These uniforms were later found in a box. She said that when they
asked the plaintiff what was in the bag he brought along to work and
later went with, he said that he had brought food in it. When she
expressed surprise at him hiding his own food in that way he said
that he had clothes in it which he was taking to be washed. She
mentioned that she suspected the plaintiff of stealing the zebra
skins because he told her he had clothes and food in the bag while
the clothes were in a box in the factory; and that he left the
premises through the back door. Lea Nawases confirmed seeing the
plaintiff come to work with a bag. The next day the plaintiff left
the place of work without informing anyone and came back late in the
afternoon. She said that when the plaintiff returned he did not have
the bag with him. She also confirmed a discussion with Kairi in terms
similar to the other employees. She also asked for a police
investigation.
[15] According to the
plaintiff, at about 15h00 in the afternoon of 17 November 2004, the
defendant assembled all the workers and 6-7 policemen arrived. He
says the police isolated him from his co-workers. At some stage he
was called by a police officer and asked about the skins. He
testified that he told the police that he knew nothing about the
disappearance of the skins. He testified that he was repeatedly
asked by the police ‘who took the skins’ whereupon he said that
if the officer thought it was him (the plaintiff), the officer must
“give me proof I took the skins.” It was then that he was asked
to accompany the police to the police station where he was told that
he would be arrested because the co-workers in their statements
mentioned that they suspected him to have taken the skins.
[16] The plaintiff testified
that he visited the defendant from the prison cells and asked him to
withdrew the charge and that the defendant said he would do that
(including paying the plaintiff’s bail) if the plaintiff told the
truth. The plaintiff still persisted in his innocence but the
defendant did not assist in having the matter withdrawn.
[17] In cross-examination the
plaintiff admitted that Kairi (as stated in the latter’s sworn
statement) had seen him standing outside Bank Windhoek carrying a
black bag, but he denied saying the things attributed to him by Kairi
in the latter’s statement under oath.
The defendant’s case
[18] The defendant testified
that when he came to the Taxidermy on 17 November 2004 he called all
the workers together to ascertain if they knew anything about the
zebra skins that had been missing. He stated that he told them that
if they did not tell the truth, he would deduct the loss from their
bonuses as the trophies belonged to foreign trophy hunters. He
testified that he then called the police to inform them that zebra
skins had been stolen. The defendant testified that the police then
came, interviewed the employees and then him (they all giving
statements) and took the plaintiff to the police station. In his
statement he confirmed a report made to him by Janbey on 11 November
2004 about the stolen zebra skins. He testified that he then came to
the Taxidermy on 12 November to help in the search of the skins but
to no avail. He confirmed the Nakara incident. He says that it is a
standing instruction that all workers must use the front door for
entry and exit at the Taxidermy. He also stated that on the 17th
November he called all the workers to ask who took the skins but
found out nothing. He stated that he then told them that they would
not receive their bonuses unless the truth comes out. He concludes
that he did not give anyone permission to remove the skins and that
he wants a police investigation into the matter. Significantly,
nowhere in the statement of the defendant is any reference made to
the plaintiff as a suspect.
[19] The defendant testified
that after the 17th
November when the plaintiff was taken away by the police, he never
again heard from them about the progress in the case. He denied that
he was aggressive towards the plaintiff upon arrival at the Taxidermy
or that he singled him out from the other employees. He testified
that upon arrival he was apprised by Janbey about the other
employee’s suspicion of the plaintiff and the circumstances that
led to that suspicion. The defendant also denied telling the
plaintiff that he would spend the night in prison unless he told the
truth.
[20] The defendant was emphatic
in his denial that he either accused the plaintiff of being the thief
or that he told the police that he suspected the plaintiff. The
defendant stated categorically under oath that all he did was to
invite the police to his premises, report the theft and to make his
employees available for questioning by the police. He testified he
did not even see the statements taken by the police from the
employees and that he was not kept informed about the progress of the
case. In his own witness statement received in evidence he said that
he had not given anyone the permission to take the skins and that he
wants the police to “investigate” the matter. The defendant
denied the allegation that the plaintiff invited him from the police
cells and asked him to withdraw the case.
[21] Sylvia Janbey in her
testimony stated that the late Kairi came to see her on 10 November
2004 and reported two zebra skins missing. Kairi then also stated to
her that he suspected the plaintiff in the disappearance of the skins
as he saw him standing outside Bank Windhoek carrying a black bag and
said he was taking his clothes to the dry cleaners while those
clothes were in a box at the Taxidermy. She stated that the
plaintiff was suspected to be the thief because he was seen by Kairi
near Bank Windhoek carrying a bag when he should have been at work
and said he was carrying clothes in the bag while those clothes were
at the work place; and that he had arrived at work the previous day
with a bag whose contents were at the place of work and he left with
the same bag through the back door when company policy required all
employees to use the front door.
[22] Janbey confirmed the call
from Nakara and the two men who came there wanting to sell the
Taxidermy’s skins; and that she went to retrieve the skins from
Nakara. Janbey also testified that it was the plaintiff’s
co-workers who on 17 November 2004 implicated him in the theft. She
also testified that it was after she received the call from Nakara
that they realized that the two skins which Kairi suspected missing
were in fact stolen. Janbey confirmed that the police came and took
statements from the plaintiff’s co-workers but that she did not
know what was in them until when she came to this trial. She also
testified that the employees had informed her that they suspected the
plaintiff of the theft even before the defendant or the police
arrived on the 17
November 2004.
She was categorical that when the defendant arrived he did not
suspect the plaintiff of the theft and that the defendant merely
asked the police to investigate the case. Janbey also testified that
she was present when the police were, on 17 November 2004, handed the
CCTV footage of the images of the two men at Nakara.
Discussion
[23] Dr Akweenda has urged me
to find that the following establish that the defendant “treated
plaintiff as a suspect’’ and “must have informed the police
about his suspicion’’ without reasonable and probable cause for
the suspicion:
The first person (out of ten
other employees) that the defendant on 17 November 2004 confronted
at the Taxidermy about the missing skins was the plaintiff; and that
the defendant was aggressive;
The defendant thereafter spoke
to the other employees as a group in the absence of the plaintiff
and having spoken to them again came to confront the plaintiff
asking him if he stole the skins with the threat that if he did not
tell the truth he would spend the night in prison;
That the defendant went to the
police station to report the incident and that upon his return he
informed the employees that those who wanted to receive their annual
bonuses had to make statements to the police;
The police then came and first
interviewed the other employees in the plaintiff’s absence and
that he was the last to be interviewed by the police;
That he paid a visit to the
defendant from the police cells while in custody accompanied by a
police officer and asked the defendant to withdraw the charge as he
was innocent but that the defendant refused and again asked him to
confess so he (the defendant) could pay the bail for him (the
plaintiff);
[24] The plaintiff chose not to
bring a claim against the police or the co-workers who implicated him
in the theft. Had the police been cited the issue would have been
whether the arresting officer had reasonable and probable cause for
suspecting the commission of an offence to justify an arrest without
a warrant. The plaintiff has opted to sue only the complainant. The
issue therefore is whether the defendant instigated (instituted) the
criminal proceedings without reasonable and probable cause and with
an improper motive. My understanding of why the plaintiff holds the
defendant responsible for his arrest and detention is that the
defendant spoke to him directly, threatened him with imprisonment if
he did not confess, and said that the workers would not get their
bonuses unless they give statements to the police.
[25] It is arguable that the
threat of the withdrawal of the bonuses served as an inducement for
the co-workers to implicate the plaintiff in the theft. That would
certainly have added weight to the inference that the defendant
instigated the criminal prosecution. The effect of the threat is,
however, neutralized by the fact that even before the defendant
arrived at the Taxidermy on the 17th
November 2004, the co-workers had already implicated the plaintiff
before Janbey.
[26] That the police indeed
arrested the plaintiff on the strength of the witness statements is
amply corroborated by the statements of the co-workers which I have
summarized above. The high-water mark of these witness statements is
that around the time the 2 zebra skins were stolen, the plaintiff
conducted himself in a way that aroused the suspicion that he had
stolen the 2 zebra skins that were retrieved from Nakara. The fact
remains though that it was the defendant’s employees that formed a
suspicion why the plaintiff was involved. Clearly he had the
opportunity to steal the zebra skins. The two men who tried to sell
the skins to Nakara were the critical link whether or not the
plaintiff had something to do with the theft.
[27] It is common cause that a
theft of 2 zebra skins took place from the Taxidermy. In fact the
stolen items were returned to the defendant’s business and handed
over to the trophy hunters. Based on the information which he
received from his employees, the defendant laid a criminal complaint
with the police over the theft of the two zebra skins. The police
conducted an investigation including interviewing employees of the
Taxidermy. The witnesses made statements under oath and the
cumulative effect of them was to implicate the plaintiff. None of
the witnesses who gave statements under oath to the police had seen
the plaintiff with the stolen skins; nor had they seen him physically
remove the skins from the Taxidermy. Both Janbey and the defendant
conceded that the plaintiff was not, and could not have been, one of
the two men who attempted to sell the stolen skins to Nakara’s
Spangenberg.
[28] Had the police arrested
and detained the plaintiff solely on the strength of the witness
statements given by his co-workers (as it appears to be the case),
they certainly had no reasonable and probable cause for doing so.
All the statements did was to raise suspicion that the plaintiff
might have been involved in the theft. It also needs to be said that
had the police exercised a modicum of common sense and conducted even
the most rudimentary investigative work, the plaintiff would either
have been implicated or exculpated. All they needed to do was to
identify, if they could, the two men who Spangenberg said were Herero
speaking and establish if they had any connection at all with the
plaintiff. If found, the two men would either have implicated the
plaintiff, or exculpated him. That the police appear not to have
done before they arrested the plaintiff.
[29] The plaintiff bears the
burden of proving that the defendant instigated the criminal
proceedings without reasonable and probable cause and for an improper
motive. It is not an improper motive to ask the police to
investigate a crime. Besides, the defendant says that he never
pointed the finger at the plaintiff as the suspect in reporting the
matter to the police. I doubt if (on the facts of this case) it would
have made any difference even if he did.
[30] Whether or not the
co-workers had reasonable and probable cause for the suspicion and
whether or not the police had probable cause for the arrest and
detention are separate questions from the issue whether the
plaintiff was entitled to report the theft and to ask the police to
investigate. Different tests would apply in founding liability. As
far as the defendant is concerned, he was entitled upon proof that a
crime had been committed, to report the same to the police and to
expect them to investigate. Significantly, it was only on the 15th
November when Nakara called, that it could be established with
certainty that the two skins Kairi suspected missing had actually
been stolen. Had the defendant on the 10th
November (when Kairi formed the initial suspicion) reported the theft
and laid a charge implicating the plaintiff, he would have been
‘instigating’ a criminal prosecution without reasonable and
probable cause - because at that stage there was no evidence a theft
had occurred and, according to Janbey, they had in the past missed
skins in the factory and after search found them. As far as the
workers are concerned, they had to have reasonable and probable cause
for suspecting the plaintiff to be the thief when they made their
statements to the police. On the facts disclosed in the witness
statements that I have summarized, one cannot say that those facts
reasonably, according to the reasonable person, indicated that the
plaintiff probably stole the 2 zebra skins from the Taxidermy. (Van
der Merwe v Strydom
1967 (3) SA 460 (A) 467.)
[31] It appears to me on the
facts of this case that it was the employees who (subjectively
believing in the guilt of the plaintiff
instigated the criminal prosecution without reasonable and probable
cause; and the police who, acting on the suspicion, pursued a
prosecution without reasonable and probable cause.
[32] I can sympathize with the
defendant for the situation he found himself: it is common cause that
he lives on the farm outside Otjiwarongo. He has appointed a
manageress to run the business for him. He received information that
a theft had taken place of his property. He then came to Otjiwarongo
to apprise himself of the true facts. Upon his arrival he is
informed by the employees that based on certain events around the
time of the disappearance of the stolen skins, they suspect the
plaintiff. What he does then is to call in the help of the police
and makes his employees share their suspicions with the police
whereafter he asks them to investigate the matter as he or his
employees had not given anyone the permission to remove the skins.
Should he be held responsible for the incompetent manner in which the
police then handled the matter thereafter; or indeed the flimsy basis
on which his employees pinned suspicion against the plaintiff in the
first place? I think not.
[33] It is important not to
send out a message which has the effect of discouraging victims of
crime from reporting same to the police, lest they are sued for
malicious prosecution. That might lead to more and more people taking
the law into their own hands instead of conveying their suspicions to
the police and to leave it to them to investigate and either
implicate or exculpate a suspect. That is the rationale for the rule
that where a person
merely gives a fair statement of the facts to the police and leaves
it to the latter to take 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 – Brand supra.
[34] Even if I am wrong in this
view, and that the plaintiff had established on a balance of
probability that the defendant in fact threatened to have the
plaintiff imprisoned unless he confessed, I still have to be
satisfied that there was a causal link between the threat and the
arrest and detention. Can it be said that on the proven facts, the
defendant was instrumental in making or prosecuting the charge
against the plaintiff? The plaintiff must prove on a on a balance of
probability that the prosecution resulted from the actions of the
defendant. (Heyns v
Venter 2004 (3) SA
200 (T) 207-208.)
[35] The plaintiff failed to
prove that the defendant directly associated himself either with the
accusation leveled by the employees against the plaintiff, or with
the arrest by the police based on the suspicion expressed by the
employees. Had he done so, and considering that the evidence
supporting the suspicion is so flimsy, he would have rendered himself
liable as having instigated criminal proceedings against the
plaintiff without reasonable and probable cause.
[36] I find that the operative
cause
of the arrest and detention was the suspicion expressed by the
plaintiff’s co-workers- a suspicion which they had already voiced
(as early as 10 November in the case of Kairi)- even before the
defendant came to the Taxidermy on 17 November 2004. The inference
that the police in effecting the arrest acted on the diktat of the
defendant is not supported by the evidence. The clearest evidence
that the defendant was not the source of the suspicion directed at
the plaintiff is the defendant’s own witness statement to the
police where he without reference to the plaintiff asked the police
to investigate the matter. Besides, the threat of imprisonment was
not made in the presence of the police who, in any event, were
required to make an independent decision (based on reasonable and
probable grounds) whether or not to arrest the plaintiff.
[37] The defendant denied the
visit by the plaintiff to the Taxidermy from the cells to ask him
(the defendant) to withdraw the charge as he was innocent. The
plaintiff, who says he was accompanied by a policeman when this visit
and conversation took place, did not call the police officer in
question. He also offered no explanation why he did not call the
officer:
“Now
where a witness, who is available and able to elucidate the facts, is
not called by a party such failure ‘’ leads naturally to the
inference that he fears that such evidence will expose facts
unfavorable to him…Ex
hypothesi,
such adverse inference only arises if the witness in question is able
to elucidate the facts or may, from the circumstances, be presumed to
be so able’’: Brand v Minister of Justice and Another 1959 (4) SA
at 715F-G. (Compare Raliphaswa
v Mungivhi and Others
2008(4) SA 154 at 157H-I-158A.)
[38] By parity of reasoning, if
a party to a dispute alleges that a certain person was present when
something was said or something happened (and its occurrence is
denied by the opposing party), and the party making the allegation
does not call that person (without some satisfactory explanation why
that person is not called), such failure “leads naturally to the
inference’’ that the witness either does not exist, or that what
is alleged to have happened never happened, or that the person, if
called as a witness, will expose facts unfavorable to the party who
makes the allegation. That, as it is said, “raises the risk of
the onus being decisive’’.
[39] In any event, it sounds to
me to be a contradiction in terms to on the one hand demand that a
person confess to a deed and on the other hand threaten them with
imprisonment if they do not: the confession would be the basis for
the imprisonment without proof by the complainant that the confessor
actually committed the crime. I find it improbable, therefore, that
the defendant threatened the plaintiff in the manner alleged or
refused to withdraw the charge or offered to pay for the plaintiff’s
bail if he confessed.
[40] Much of the plaintiff’s
effort was devoted to establishing that there was no reasonable and
probable cause for the arrest instead of crossing the first hurdle-
did the defendant instigate the criminal prosecution? It appears to
have been assumed by the plaintiff that the accusations leveled by
the co-workers (without the allegation and proof that the defendant
was liable for them) and the arrest and detention by the police of
the plaintiff, could be imputed as a matter of course to the
defendant simply because he laid a criminal complaint with the
police. That was a serious error of judgment.
[41] I find it significant that
the defendant’s witness statement makes no reference to the
plaintiff and that the police’s suspicion of the plaintiff was –
again on his own admission – only made at the police station in the
absence of the defendant. On the facts before me, I am unable to
find evidence from which to draw the interference that the defendant
instituted criminal proceedings against the plaintiff. It appears to
me that he merely made information available to the police on the
basis of which to investigate a crime which, it is common cause, was
committed sometime on 10 November at the Taxidermy of which he is the
owner.
[42] I am satisfied that the
suspicion on the basis of which the police acted to arrest the
plaintiff did not disclose a reasonable and probable cause. However,
I have come to the conclusion that the plaintiff failed to cross the
first hurdle of establishing that it was the defendant who initiated
or instigated the criminal proceedings against him.
[43] In the result, the
plaintiff’s claim is dismissed with costs.
_______________________
DAMASEB, JP
On behalf of the Plaintiff:
Dr
S Akweenda
Instructed by:
Titus Ipumbu Legal
Practitioners
On behalf of the
Defendant: Mr
C Brandt
Instructed by:
Chris
Brandt Attorneys
Akuake v Van Rensburg (I 2619/2006) [2009] NAHC 12 (09 February 2009);