Ngcobo and Another v Minister of Police (4755/2017) [2023] ZAKZPHC 123; - (20 October 2023)

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[2023] ZAKZPHC 123
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Ngcobo and Another v Minister of Police (4755/2017) [2023] ZAKZPHC 123; - (20 October 2023)

SAFLII
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Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
No: 4755/2017
In
the matter between:
THEMBELANI
NGCOBO                                        FIRST

PLAINTIFF
BHEKUYISE
SHANGE                                            SECOND

PLAINTIFF
and
THE
MINISTER OF POLICE                                    DEFENDANT
ORDER
1.    The
defendant is found liable for the damages to each of the two
plaintiffs for the unlawful arrest and
detention and malicious
prosecution up to the date of their release on 18 March 2016.
2.    The
quantum of damages for each plaintiff is postponed sine die for later
determination.
3.    The
defendant is ordered to pay costs including costs of two counsel
JUDGMENT
Mngadi
J:
[1]
The two plaintiffs in the action for the arrest, detention,
prosecution, conviction and serving sentence of
imprisonment claim
damages from the defendant. The first plaintiff claims R3 million for
loss of earnings and R10 million general
damages. The second
plaintiff claims R10 million general damages.
[2]
The first plaintiff is Thembelani Ngcobo an adult male born on 3
April 1989. The second plaintiff is Bhekuyise
Shange an adult male
born on 10 January 1991. The defendant is the Minister of Police, the
National Minister of State responsible
for the South African Police
Services.
[3]
The plaintiffs, as a course of action, state that on 19 December 2010
they were without reasonable and probable
cause nor belief in their
guilt wrongfully, maliciously arrested and detained by members of the
South African Police Services for
murder and rape. Consequent to
their arrest and detention the police opposed the release of the
plaintiffs on bail and release
on bail was refused. The plaintiff
claim that as result contrived confession evidence by the police they
were prosecuted, convicted
and sentenced. The plaintiffs claim that
the police owed a duty of care to them to honestly convey to the
prosecutor and the judicial
officers involved in the case that the
plaintiffs' confession was induced by assault on their part which
they failed to do, which
resulted in the plaintiffs remaining in
custody from the date of arrest until 10 October 2013 when their
conviction and sentence
on appeal was set aside and they were
released.
[4]
Further, the plaintiff stated that the members of the police
wrongfully and maliciously set the law in motion
by laying a charge
of murder and rape against the plaintiffs when they had no reasonable
cause for doing so nor did they have any
reasonable belief in the
guilt of the plaintiff. The result of laying the charge was that the
state prosecuted the plaintiffs on
the charge of murder and rape,
they were acquitted on the rape charge and convicted on the murder
charge. It resulted in the plaintiffs
sentenced to life imprisonment.
[5]
The issues at the commencement of the trial were in terms of Rule
33(4) separated. The issue of liability
including causation to be
tried separately and the issue of quantum postponed for later
determination. The parties agreed that
the criminal trial record is
handed in and the evidence adduced in the criminal trial is correctly
recorded and that evidence be
taken as evidence adduced before this
court. The plaintiffs in this court testified and each plaintiff
called one witness. The
first plaintiff called as a witness his
mother Bahlaleleni Ngcobo. The second plaintiff called Mqobeni
Mkhulisi who testified that
he was present on the day second
plaintiff was arrested. The defendant after the plaintiffs closed
their case applied for absolution
from the instance, an application
opposed by the plaintiffs. The court after hearing arguments refused
the application. The defendant
called nine (9) witnesses, namely;
Zwelibanzi John Ntsele,Mandlenkosi Alfred Mlangeni, Sithembiso Glen
Mthembu, Zwelihle Thomas
Madlala, Jack Velaphi Mncwabe, Victor
Mduduzi Nene, Zamokuhle Raymond Dlamini, B[....] K[....] M[....]  and
Nkosinathi Dennis
Kunene. .
[6]
The evidence took the form generally of the events in the evening of
17 December 2010 at the motel up to the
home of K[....]; the
apprehension of the first plaintiff the following morning; events at
the scene where the body of the deceased
was found; the arrest of
second plaintiff; detention and interrogation of first plaintiff;
arrest detention and interrogation of
second plaintiff; trial and
conviction of both plaintiffs. It being common cause that the
plaintiffs were arrested 18 December
2010 and detained. They were not
released on bail pending trial, the police opposed the release of the
plaintiff on bail. The plaintiffs
were prosecuted and convicted on 10
October 2013 and sentenced to life imprisonment. The plaintiffs
served sentence of imprisonment
until 18 March 2016 when the Full
Court upheld their appeal against conviction, and they were released.
[7]
It has proved to be challenging to capture the evidence presented at
the criminal trial on the basis of which
the plaintiffs were
convicted and sentenced and to summarise evidence presented in the
civil action since the evidence in a large
measure overlap. The
versions of the witnesses are captured in their police statements
(those that made statements); their evidence
in the criminal trial as
transcribed and their evidence in these civil proceedings.
[8]
The evidence exhibited some discrepancies and may be due to fading
memories due to lapse of time but the defendants
witnesses appeared
to be biased against the plaintiffs claiming repeatedly that the
plaintiffs confessed which claimed confessions
are not in their
police statements and they were not presented as evidence in the
criminal proceedings. In the criminal trial Nene
and Dlamini
testified that they went to the home of first plaintiff from the
scene to look for him and they did not find him. Unlike
in the civil
action, Nene did not tell the criminal court that he pursued first
plaintiff with the members of the community until
he apprehended him
and took him to the scene. In this court Dlamini testified that he
did not go to the home of first plaintiff
that morning, he remained
in the scene guarding it. But by and large the matter must be decided
on the evidence presented in the
criminal trial. However, it must be
pointed out that the evidence regarding what happened at the scene
was contradictory but, in
my view, it is not necessary to deal with
the contradictions in detail. It is clear from the evidence that the
emotions were high,
there was a large unruly violent armed crowd
baying for blood.
[9]
The record of the criminal trial indicated that the criminal trial
wherein the plaintiffs were accused 1 and
accused 3 respectively
commenced on 20 August 2012 before Potgieter AJ. The accused were
Thembelani Brian Sgodo Ngcobo (Accused
1), Sphamandla Mkhize (Accused
2) and Bhekumuzi Christopher Shange (Accused 3). The indictment
indicated that accused 1 and accused
3 were aged 19 years and accused
2 was 20 years old. The accused were indicted on three (3) crimes,
namely; Assault with intent
to do Grievous Bodily Harm (count 1
against accused 1 only); Rape in contravention of s3 of the Sexual
Offences and Related Matters
Amendment Act 30 of 2007 read with the
provisions of s51 and schedule 2 of the Criminal Law amendment act
105 of 1997 (Count 2)
and Murder read with the provisions of s51 and
Schedule 2 of the Criminal law Amendment Act 105 of 1997(Count 3).
[10]
The summary of substantial facts provided by the state as its opening
address alleged that on Friday 17 September 2010,
B[....] K[....]
M[....]  (K[....]) together with some friends went to Mortel
Store where they had some drinks. K[....] had
an altercation with one
of accused 1's friends. She was ordered to leave the store. On her
way home, accused 1 followed her. He
attacked her and stabbed her on
the shoulder and thumb, and he left her. Later, the same night,
accused 1 returned to Mortel store
and met accused 2 and 3. They
decided to go and look for K[....] at her home to stab her.
[11]
It further alleged as follows. The deceased who was K[....]'s sister
was at her home. The accused gained entry to her
room and held her.
The accused stabbed and took her by force to show them where K[....]
was. On the road, the accused took turns
raping the deceased. They
then stabbed the deceased and slit her from her vagina to the chest
causing her entrails to spill out.
She died at the scene from stab
wounds on the lungs and heart.
[12]
Each accused during the trial had his own counsel representing him.
The state, at the commencement of the trial withdrew
all charges
against accused 2. The remaining accused both pleaded not guilty to
all the charges. In respect of count 1, the first
plaintiff stated
that he acted in self-defence when he caused injuries to K[....].
Both the plaintiffs denied all the allegations
against them in
respect of the rape and Murder charges.
[13]
The Prosecution as part of its opening address stated that the state
as a first witness will call K[....]. K[....] will
testify that she
is the sister of the deceased. During the evening of 17 December
2010, she was at a Local shop with certain friends.
Where she
encountered a group of men, which included accused 1. There was an
argument emanating from the proposition of one of
her female friends
by one of the males. There was drinking and dancing going on at the
shop. She left the shop for home when she
was followed by accused 1,
who stabbed her. She later encountered accused 1 at her home; she
knew accused 1 prior to the incident.
During the later part of that
night, she and her family decided that the deceased was missing from
their home.
[14]
The prosecution, as part of its opening address indicated that it
intended to prove in a trial-within-a trial the admissibility
of
warning statements made by the two accused to commissioned police
officers.
[15]
The state then lead evidence of K[....]. She testified that the
deceased was her sister and she lived with her in the
same homestead.
She testified as summarised by the prosecutor in the opening address.
She said Remember a boyfriend of her other
sibling proposed love to
one of her companions. She confronted him. Then one of her companions
said they must leave. They arrived
at about 8pm and it was then at
about 12 midnight. They went out. She left her companions standing on
the road and she told them
that they would catch up with her. She
then felt something stabbing her. It was the first plaintiff stabbing
her. She struggled
with him over the knife. He stabbed her on the
right-hand upper arm. The knife cut her on her thumb. They struggled
over the knife,
the first plaintiff left her, and he proceeded
downwards towards the Sikhakhane residence.
[15]
K[....] testified that she called one of her companions Fasi. She
told her that she had been stabbed. They went to Themba
Ndlovu's
home, Themba was one of the people in her company. She phoned her
mother to come and fetch her. She met her mother on
her way home. Her
mother was with the first plaintiff. They arrived at home. Her
grandmother went to the deceased to fetch a candle
to use for a
source of light. In the meantime, she used her cell phone torch to
light. She identified the first plaintiff, and
she asked him what he
wanted there because he stabbed her. The first plaintiff said how did
he stab her because he was helping.
She said earlier when she met her
mother who was with first plaintiff, she thought first plaintiff was
her brother, and it was
dark.
[16]
K[....] under cross-examination stated that she was intoxicated and
she said she not know how much liquor she had consumed.
She said she
and the plaintiff were related by surname. She had known him for two
months. She had no problem with him. She said
she did not know
whether it was safe to walk alone at night, and she left her three
companions and walked alone because it was
already late at night. She
said the injury on her thumb was not bleeding, it was a scratch. She
said she did not know why the doctor
did not note injury in the
medical examination report (J88). She walked with her mother and the
person she said it was first plaintiff
to her home for about 5
minutes. When she told her mother that first plaintiff was the person
who stabbed her, her mother did not
respond. When she met her mother
and the first plaintiff, they were talking to each other.
[17]
K[....] denied what was put to her to be the first plaintiffs'
version, that during the evening she pushed one Muzi and
the first
plaintiff asked her why she pushed Muzi, and she replied by referring
to the first plaintiff as a thug (Skhotheni) and
this caused an
altercation between them, and they had to be separated. She denied
that later the first plaintiff went out to answer
a phone, and whilst
he was answering the phone, she and other people confronted him and
repeated that he was a thug. She denied
that she struck him with a
beer bottle on his head and the bottle broke, that they struggled
over the broken bottle, and she was
injured during the struggle. She
denied that Muzi and Siphesihle came outside, and she left with her
companions. It was put to
her that it was the last time, the first
plaintiff saw her that night, he was not in the company of her
mother, he was never at
her home. She said what also caused her not
to initially identify the accused, was because he had taken off the
jacket he was earlier
wearing, and he wrapped it around his waist.
[18]
The state then requested that a trial-within-a-trial be held
concerning the admissibility of the statements made by both

plaintiffs. It stated that the statements are confessions they were
made to commissioned police officers, made by the first and
second
plaintiffs freely and voluntarily, without having unduly influenced
thereto and whilst both they were in their sound and
sober senses.
[19]
The first witness was Mandlenkosi Alfred Mlangeni. He testified that
he was a Colonel in the South African Police Service
stationed at
Plessislaer with a service of thirty­ two (32) years. On 18
December 2010 on a Saturday, he was the officer on
standby duty. He
had to be called out to attend for each and every serious crime
committed in his patrol area. The areas are Plessislaer
and Taylor's
Holt Police Station areas. On 18 December 2010 he attended the scene
in this case. He arrived at the scene, and he
observed, and he
preserved some evidence, marked whatever he could mark and pointed
out to the photographer. He interviewed police
officers he found at
the scene and other identified witnesses. He interviewed and took a
statement from K[....]. He generally oversees
the proceedings on the
scene on the day in question. The next day he was called after he was
told that some people had been caught
and they were suspected to be
involved in the commission of the crime. He was requested to take
down warning statements from those
persons. He was requested by
Warrant Officer Mthembu. He was requested to interview al the
suspects and obtain their warning statements.
He did question all
three suspects and he obtained statements from the three of them. He
took a statement from second plaintiff
(Bhekuyise Shange) who also
was arrested on 20 December 2010 after he was off the investigation.
[20]
Colonel Mlangeni testified that on 19 December 2010 on Sunday he met
first plaintiff in his private office at Plessislaer
Police Station.
In the office, it was only him and the first plaintiff. Prior to
taking down the warning statement, he used a prescribed
pro forma
with guidelines questions to be asked and to fill up and that is what
he did. The first plaintiff introduced himself
to him. He asked his
name and address. He identified himself to the first plaintiff
completing the pro forma and he warned him
of his rights. All the
questions that he asked and the answers he gave, he recorded them
down. He identified the pro forma he used,
and it was marked as
exhibit 'E'. He communicated with first plaintiff and in the course
interpreted from English to Zulu. Question
8 which he filled out
after he had made a statement it asked: 'were you in any way
threatened, assaulted or influenced to make
the statement' and the
first plaintiff's response was 'no, it was my own free choice'. He
said he was satisfied that first plaintiff
made the statement freely
and voluntarily and in his sound and sober senses. He read the
statement back to the first plaintiff.
The Prosecutor asked Colonel
Mlangeni that although it was not part of the document handed in as
an exhibit, did he establish if
the first plaintiff had any injuries,
he said he did, he had some injuries and the first plaintiff told him
how he sustained the
injuries.
[21]
Mlangeni under cross-examination testified that he had been a
lieutenant colonel for five (5) years. He had during that
period
taken many confessions, may be 100 or 50. The scene of crime was
about 35 minutes from Plessislaer Police Station. He had
been
investigating cases for thirty (30) years. When on 18 December 2010
he left the scene of crime he had a suspect in mind in
the assault
and a person suggested as a suspect on the charge of murder. He
observed the injuries on the deceased body when he
attended the
scene. The injuries were multiple stab wounds and a deep cut from
vagina through the stomach to the chest, it was
a very horrific
scene. As depicted on the photo in the photo album. He could see that
the body had been dragged and there were
blood drops where the body
was lying, there were blood spots for a long distance leading to a
house, which indicated to him that
the person was taken from the
house to the spot where she was found murdered. W/O Mthembu was also
at the scene on the day he attended
the scene. On 19 Dec 2010 W/O
Mthembu phoned him. He stated that suspects apprehended by the
community are sensitive cases and
the community may harm the
suspects. He said the first plaintiff and the two, three persons were
apprehended by the community;
and assaulted by the community. He said
three suspects he had to interview were first plaintiff, Mkhize and
Ntshele. He said W/O
Mthembu informed him that some suspects had been
caught by the community and they were detained at the Plessislaer
Police Station,
he was requested to attend to interview them and
obtain warning statement because it was sensitive matter. He was not
aware at
the time that admissions were going to be made. The suspects
were brought to him to be questioned. He interviewed the suspects one

by one. He completed the warning statements from first plaintiff at
16h20. He did not record the injuries on first plaintiff because
the
first plaintiff was from a doctor. He was not involved deep in the
investigation, his duty was to take the warning statement
and
ascertain that against the people who were arrested there was a prima
facie case against them, otherwise they had to release
them. It is
possible that he ordered the first plaintiff be taken to the doctor
DNA samples to be taken. He knew W/O Mthembu as
a detective based at
Taylors' Halt Police Station.
[22]
Mlangeni confirmed OB entry Plessislaer Police Station serial no
[....] at 09:30 indicates that W/O Mthembu booked out
first plaintiff
Siphokuhle Mkhize and Sihle Ntshele. Entry 1857 records that suspects
back at 5pm. He said he did not note the
movements of the suspects
during the course of the day. He admitted that he also obtained
warning statements from Siphokuhle Mkhize
and from Siphesihle
Innocent Ntshele, he did not know in which order he obtained
statements from them, but he obtained statements
one after the other.
He confirmed that he completed Ntshele's statement consisting of two
and a half pages at 17h30, and the one
from Mkhize consisting of four
pages at 17h40. It was put to him that the short intervals indicate
that the suspects were not properly
warned of their constitutional
rights.
[23]
Colonel Mlangeni denied that he told the accused that he must use the
opportunity to study in prison and that since he
was pleading guilty
there would be no problems in court. He denied that the first
plaintiff told him that he knew nothing about
the commission of the
crimes, and there he signed a document the Lieutenant Colonel had not
written in his presence, and that he
never went through the pro forma
with him. He confirmed that he was aware that the community assaulted
the first plaintiff and
he saw open fresh wounds in him. He said the
first plaintiff did not tell him that police officers assaulted him.
When it was put
to Mlangeni that a commissioned officer recording a
confession has to be independent from the matter to ensure accuracy
and reliability
of what is recorded, the court intervened suggesting
that was not law. The Colonel stated that although he was involved in
the
investigation, he would not deny a person an opportunity to tell
him whatever he wanted to tell him. He said although he had knowledge

of the case, he was not prohibited from taking a warning statement
from the first plaintiff and primary concern was to safeguard
the
interest of justice if wrong people were arrested, he should have
done something about, but if he is happy that the right people
were
arrested, he can also say okay carry-on guys and charge them. He said
he commenced taking statement intending statement to
take a warning
statement, not intending to take a confession. When asked why he
would be requested to take a warning statement,
he said he did not
know what the accused would say. When Mlangeni was asked why when
what the first plaintiff started telling him
took the form of a
confession he did not stop and refer the first plaintiff to a
commissioned officer to take a confession he said
if a person wants
to tell a story, it is not for him to stop him, it is for the court
to decide. He said at times it helps the
accused, the prosecutor to
take a guilty plea, if the accused is pleading guilty, he must be
afforded that opportunity for the
court to know what the accused has
to say. He said it was not his duty to second guess whatever he tells
him, as long as it is
not under duress. Mlangeni when asked that the
community assaulted the first plaintiff suspecting him of the murder,
why he did
not ensure that first plaintiff was not confessing in fear
of the community, he said he did not know why the community assaulted

first plaintiff, the community did well by not killing him. Mlangeni
said he explained to the first plaintiff that he was a commissioned

officer.
[24]
The next witness in the trial-within-a trial was Jack Velaphi
Mncwabe. He testified that he was a captain at the SAPS
stationed at
Taylor's Halt at the time. He had 24 years' experience in the police
force. He was the head of the detectives at Taylor's
Halt Police
Station. He was not on duty on 18 December 2010. He commenced duties
on 20 December 2010. He obtained a warning statement
from the second
plaintiff on 21 December 2010. W/O Mthembu under his command
requested him to take a statement from the second
plaintiff. He
completed taking a warning statement at 19:33. W/O Mthembu had
requested him to do that at 4pm, at that time they
detained their
suspects at Plessislaer. Entry 2097 indicates the booking out of
Shange on the OB by him at 18:40. Entry 2012 shows
the time 19:55
when he booked back Shange into the cells. He took Shange to an
office at Plessislaer to interview him. He interviewed
him in
lsiZulu. He went through the document Exh"G".
[25]
He stated that he first introduced himself as Captain Mncwabe from
Taylor's Halt. He informed him of the charges, he
was facing and
where and when the offences took place. Shange elected to make a
statement, he recorded the statement, and he read
it back to him. The
last page indicated that he asked Shange whether he was attacked or
threatened, and he said No. His understanding
was that the second
plaintiff made the statement to him freely and voluntarily.  He
was satisfied that second plaintiff understood
all his rights as set
out in para 3.1 to 3.7 of the document. The second plaintiff did not
report any assault on him. He said he
had not had anything to do with
investigation up to that stage. He said the docket of his
subordinates pass through his hand and
it is so that the docket in
this matter he would have had course to peruse during the course of
the investigation.
[26]
Mncwabe in cross-examination testified that he read to the second
plaintiff the document in Zulu. He testified that he
obtained the
details of the crimes committed from W/O Mthembu. The document is in
the first person, but he satisfied himself that
the second plaintiff
understood and agreed. He said he explained to the second plaintiff
the contents of paragraphs that he had
a right to remain silent, not
to say anything or to make any confession nor admission. He said he
did explain the difference between
an admission and a confession, he
said he informed the second plaintiff that he had a right to get a
legal representative should
he foresee that there might be an
injustice or unfairness to him in this matter. It was 19h30 but he
explained that a legal representative
could be arranged for him. When
the version of the second plaintiff that he was held at Taylor's Halt
and there severely beaten
by police officers and thereafter brought
to Plessislaer and bought to his office, that in this office he was
busy writing after
completing writing on the document, he ordered him
to place his signature on the document, he said the second plaintiff
was lying.
He denied that he told second plaintiff that if he did not
sign, he knew what was in there for him.
[27]
Mncwabe stated that he last saw W/O Mthembu on 20th and they were
still busy with investigation. The following day he
saw Mthembu again
at the police station and Mthembu gave him feedback that they
eventually arrested the second plaintiff, Mthembu
also told him about
a certain knife allegedly thrown in the toilet. He said Mthembu
requested him to take a statement from the
second plaintiff only
after they have established as to what happened to the knife. He
stated that later on at about 16h00 Mthembu
came back to him and
informed him that he could not find the knife, but he should proceed
to take the statement from the second
plaintiff. He confirmed he
heard of the arrest by the community, the finding of a mutilated body
of the deceased, the arrest of
the other suspects, he admitted that
he was pressure on the police to solve the crime and bring to book
the people who committed
the crime. Mncwabe testified that after he
finished taking the statement from the second plaintiff, he took his
fingerprints. Mncwabe
said the second plaintiff could not tell him at
what time the incident took place. He used a pro forma in the first
person of the
person who is making a statement, not a form used by
the person taking a statement.
[28]
The third witness by the state in the trial within a trial is
Sthembiso Glen Mthembu (Mthembu). Mthembu testified that
he was
detective warrant officer stationed at Taylor's Halt Police station.
He testified as follows. On 18 December 2010 at about
9 AM, he
attended the scene. He found first plaintiff at the scene having been
apprehended by members of the community. The community
members were
violent and threatening to kill the first plaintiff. He intervened,
but the first plaintiff had already been injured
and bleeding from
his head. Mlangeni had left the scene with K[....]. He later placed
first plaintiff in the police van and secretly
told Constable Z.R
Dlamini to drive away. He did not explain anything to the first
plaintiff since there was no time and he was
protecting him from the
members of the community.
[29]
Mthembu testified that at about 11 pm he saw the first plaintiff
again at Taylor's Halts police station. The OB entry
1756 he made
recorded that he detained first plaintiff at 10h40, detained with
Siphelele Mkhize for murder under GAS 116/12/2010
and it refers to
SAP 14A Q4736741 and 4736740 as their constitutional rights. It
recorded Thembelani Ngcobo got injuries on head
when the community
assaulted him. He said Constable R.Z Dlamini explained the
constitutional rights. He testified that he also
explained to the
first plaintiff his constitutional rights and the reason for the
arrest at Taylor's Halt police station, but they
were not booked in
at Taylor's Halt. He said he explained the accused constitutional
rights and he told him that he was arresting
him for the murder
charge. He said he first introduced himself as the police officer,
told him that he was putting him under arrest
on a charge of murder,
inform him of a of the rights of legal representation, that he had a
right to consult with his own legal
practitioner, if he did not have
one, he can be afforded one by the state. He said he also explained
to him that whatever he says
or tells him will be used as evidence
against him in court. He also informed him of his rights to a bail
application. He then told
him that he would be taken to Plessislaer
Police station for the reason because he was injured, and he needed
medical attention.
[30]
Mthembu testified that on 19 December 2010 at 9:20 per OB [....] he
booked out first plaintiff, Siphelele Mkhize and
Sihle Ntshele. He
booked them to take to the Doctor for their blood samples to be
taken. He took them to Doctor Soni at St Annes
Hospital. He took them
to the doctor. He returned from the doctor and booked them back into
the cells. He testified that on the
morning of 19 December 2010, he
told Mlangeni that he had these suspects, and he would like him to
obtain a statement from them.
He did not arrange the time with
Mlangeni. He intended to tell him when the suspects were brought back
to St Annes Hospital. He
did not inform him, but it was his weekend
to be on standby duties. He arrived with the suspects as per entry
18h57 at 16h55 that
reads "suspects back and charged by W/O
Mthembu Thembelani Ngcobo-Taylor's Halt CAS 116/12/2010. By charging
him, it refers
to his fingerprints being taken. He stated that he did
not assault the first plaintiff, and nobody assaulted first plaintiff
in
his presence. It was the last time he interacted with the first
plaintiff on that day.
[31]
Mthembu testified that he arrested the second plaintiff. He arrested
the second plaintiff where he stayed. He explained
his constitutional
rights when he arrested him. He arrested the second plaintiff on 20
December 2010. He introduced himself and
that he was investigating
the murder. He informed him of his rights of legal representation and
that he had a right to have his
own legal representative of his own
choice. If he did not have one, he could make an application in court
to be afforded a state
attorney. He told him that he must bear in
mind that whatever he is discussing with him might be used against
him as evidence in
court and he informed him of his right to a bail
application. That took place at Taylor's Halt police station, and he
did not know
at what time, but in the morning between quarter pass
seven to eight. He also took him to Doctor Soni to his Surgery. It
was between
ten and eleven. The doctor attended to him at 14h00. He
then took the second plaintiff back to Plessislaer and detained him.
[32]
Mthembu testified that after he detained the second plaintiff, he
went to Captain Mncwabe under whose command he was.
He requested the
docket. He informed him that there was one more person he had
arrested, and he wanted to add him in the docket.
It was entry 1981
with time 18h00 stating that the suspect is detained by Detective
constable Madlala of SAPS Taylor's Halt. Bhekumuzi
Shange GAS
116/12/2010 murder. His rights were explained and understood, and
then SAP14 A Q4736777 is the constitutional rights
warning. He
testified that on 21 December 2010 Captain Mncwabe obtained a warning
statement from the second plaintiff. He arranged
for Captain Mncwabe
to obtain the warning statement. He arranged commissioned officers to
take warning statements because the offences
were serious and, in
such cases, they are not allowed to take such statements from the
suspects. The second plaintiff wanted to
say something, and it is
where he had to tell him no, stop, you can convey that to the right
person. He testified that he did not
assault the second plaintiff and
there was no police officer that assaulted him in his presence.
[33]
Mr. Mthembu in cross-examination testified that he had experience of
22 years' service, thirteen (13) years of which
as a detective.
Mthembu testified after the first plaintiff was removed from the
scene, he wanted him taken to Plessislser Police
station because at
Taylor's Halt they did not have cells in which to keep a suspect
overnight and he also wanted him to be seen
by a Doctor. He said
there were about 15 members of the community armed with bricks and
sjamboks. Persons were shouting that the
first plaintiff be released
to them for them to kill him. He said the first plaintiff could not
be taken straight to the doctor
because the procedure for arrested
persons is first go to a police station to make a note or letter to
say the person is under
arrest so if he is taken to the doctor or
hospital, he would be guarded by the police. It is to fill occurrence
book and write
out SAP 70. He agreed with an OB entry of Plessislaer
that first plaintiff was detained at 10h40 and taken to Edendale
hospital
at 10h45, entry 1757. He said he would not deny that the
notice of constitutional of first plaintiff by Constable Dlamini was
done
at 9h30 at Plessislaer Mthembu testified that he was not an
investigating officer, but he was part of the investigation team and

Col Mlangeni was in charge of the team. He proceeded to Taylors Halt,
and he opened a police docket. He said he saw the first plaintiff

bleeding at the scene with an open wound, he instructed Dlamini to
quickly take him to the police station because they had to take
him
down to Plessislaer and to hospital. His intervention with the first
plaintiff on 18 December 2010 at Plessislaer was purely
to inform him
of his rights and he played no further part on the day. He only
informs the first plaintiff that he was going to
take him to
hospital. The first plaintiff was then detained to the cells. He
found the first plaintiff in the charge office; he
was bleeding,
wearing shorts and having no shirt. He booked the first plaintiff
into the cells at 10h40 as per the OB entry.
[34]
Mthembu admitted that there was no evidence linking the first
plaintiff to the incident up to the date of trial. He said
the first
plaintiff was detained so that he would be investigated as to how
true are the allegations that the community were saying
against him.
Mthembu admitted that at that stage he had no statement by K[....]
filed in the docket. He admitted that when he detained
the first
plaintiff, he had no leads that he was involved in the murder. He
said he has no comment on why the right to remain silent
was not
explained to the first plaintiff at Taylor's Halts police station.
Mthembu said although he was with the first plaintiff
at Taylor's
Halt and he told him all what he wanted to tell him, there is nothing
stopping him to going to Plessislaer and repeat
to first plaintiff
what he had told him at Taylor's Halt. Mthembu said that he did not
investigate the first plaintiff at Plessislaer
Police station, he
investigated him at Taylors Halt when he arrived. Mthembu when asked
whether at the stage he asked Col. Mlangeni
to take a statement from
first plaintiff, had first plaintiff told him anything necessitating
the taking of a statement by the
commissioned officer, he said first
plaintiff did not tell him what he wanted to say excerpt to indicate
that he wanted to say
something. He confirmed that Col Mlangeni did
not know that the first plaintiff was going to incriminate himself.
[35]
Mthembu testified that he got the impression that the second
plaintiff wanted to make a statement, and he handed the
book over to
Capt. Mncwabe. He arrested the second plaintiff on the 20th of
December 2010 at 8h00 at his home. He took him to Taylor's
Halt. He
first asked the second plaintiff what he knew about the incident. The
interaction took about an hour. He then at about
15h00 took him to
Doctor Soni. Between 106 clock and 15h 00, he was with the second
plaintiff in his office at Taylors Halt trying
to contact other
colleagues to assist to remove what second plaintiff said he had. He
did not book him into the register of the
second plaintiff. He agreed
with OB entry 2097 indicating that he was detained at 18h00 and his
notice of rights is timed at 18:40,
although the second appellant
made a detailed statement to him, he still saw it necessary to hand
over or confirm Mncwabe that
the second plaintiff wished to make a
statement that he must proceed to take a statement. He confirmed that
he did not advise the
second plaintiff of his right to remain silent.
He said he did not do so because he was still to refer plaintiffs to
Col Mlangeni
and Capt. Mncwabe where the said rights would be
explained thoroughly and properly to them. Mthembu asked why he only
warned second
plaintiff of his constitutional rights after he had
questioned and obtained information from him, he said he would not
have placed
second plaintiff under arrest before he could give him
the reason why he should do so. He said he did not book in second
plaintiff
at Taylor's Holt because he was still asking him questions
about the offences, he would not have reached a stage to book him in

before he would at least get what he was looking for. He denied that
he and Madlala who arrived in the home of the second plaintiff
with
other police officers assaulted him.
[36]
Zamokwakhe Raymond Dlamini testified as follows. He was a constable
stationed at Taylor's Halt Police station with eight
(8) years'
experience. On 18 December 2010 at 5:30 he attended the scene at
Mafakatini. He was the first police officer to arrive
at the scene.
He and Cost Nene proceeded to the home of the first plaintiff, but
they did not find him. Sibongiseni Mbhele phoned
him and told him
that community members had apprehended the first plaintiff. He then
proceeded to the scene, and he saw the first
plaintiff with blood on
his head. The members of the community some were carrying sticks and
sjamboks. The first plaintiff was
taken to the van. He then, as
instructed by W/O Mthembu drove away with the first plaintiff. He
booked the first plaintiff to Taylor's
Halt. W/O Mthembu arrived and
read to the first plaintiff his constitutional rights. He then took
the first plaintiff to Plessislarer.
W/O Mthembu followed them in
another vehicle. He at Plessislaer read to the first plaintiff his
constitutional right from SAP 14
(a) and it was at 09:30. As per
entry 1757 at 10:45 he booked out the first plaintiff and he booked
him to Edendale Hospital. He
returned and booked into the cells the
first plaintiff at 15:50 as per entry 1771. He stated under
cross-examination that after
W/O Mthembu read to the first plaintiff
his rights, he was then placed in a police vehicle, and he took him
to Plessislaer. He
did not in the absence of W/O Mthembu at Taylor's
Holt investigate the first plaintiff. He said W/O Mthembu read to
first plaintiff
the constitutional rights from the e-pocket book he
had no c_ that W/O Mthembu stated that he explained the
constitutional rights
from memory Dlamini testified that the SAP 70
form was complete at Plessislaer SAPS after he had completed the SAP
14A notice of
rights. He agreed that as result of assaults, the first
plaintiff at the scene could not stand and he had to sit on the
ground.
He insisted, contrary to Mthembu's evidence, that Nene and
Madlala were not there at Plessislaer Police Station.
[37]
Victor Mduduzi Nene testified as follows. He was a constable
stationed at Taylor's Holt SAPS. He worked nightshift on
17 December
2010. On the morning of 18 December 2010, he attended the scene of
crime at Mafakatini. His evidence relating to the
presence of the
body and the community at the scene and the first plaintiff brought
to the scene agrees with the evidence of the
other police officers.
He denied that he went to Plessislaer Police station stating that
from the scene he went home. He denied
that he assaulted the first
plaintiff at any stage. Thomas Madlala testified as follows. He
stated that on 19 December 2010 he
booked out the first plaintiff to
doctor Soni. He denied that he was at Plessislaer Police station on
18 December 2010. He denied
that on 2018 December 2010 he and Nene
assaulted the first plaintiff in the presence of W/O Mthembu. He
returned with first plaintiff
from doctor Soni and he with W/O
Mthembu booked back into cells the first plaintiff.
[38]
Doctor Soni testified that on 19 December 2010 at about 12h52 he
examined the first plaintiff and he completed the prescribed
medical
examination form(J88). He found the following injuries, 5cm
laceration on the left parietal area that had been sutured,
a 2.5 cm
laceration on right parietal area on left hand and forearm; 5cm
sutured wound on the left thumb; 3cm sutured wound central
aspect of
the left palm, index and middle fingers, The back of ears and left
part of the head had dried blood. The doctor stated
and recorded what
he was told by first plaintiff 'allegedly assaulted by many people
from community, assaulted with a gun, sticks
and kicked. Attended and
sutured at Edendale Hospital. The doctor testified that the first
plaintiff was not wearing any shoes
nor anything on top and he was
wearing shorts.
[39]
The first plaintiff testified as follows. He in the evening of 17
December 2010 was at Mortel Store. He was drinking
with his friends,
the second plaintiff and Siphesihle Mkhize, Sihle, Ntshele and
others. He knew K[....] by sight. He saw her in
the store, but he did
not see her arriving. One female in the company of K[....] approached
him and his friends and they asked
to share liquor with them. He told
her that he would not share liquor with her because they had all
contributed in buying the liquor.
That passed. Whilst they were
dancing with the females, K[....] called them thugs (Skhothenis) she
said after she had pushed away
the second plaintiff. She also
advanced to him and pushed him. She asked him who was he to dance
with her female companions. His
friends came and they took him away.
He went with his friends, and they continued drinking on their table.
Siphesihle drew his
attention to his phone which was ringing. He went
out to answer the phone away from the noise. He went about 20 meters
away. He
then saw a group of males and females coming from the store
towards him and K[....] (who was light in complexion) was in the
group).
K[....] approached and confronted him. He asked the person he
was on the call with to hold. K[....] asked him whether he was still

denying that he was a Skhotheni. He asked what she really wanted from
him. She struck him with a beer bottle on the head. The bottle
broke.
They struggled over a piece of the broken bottle. It cut him on the
left thumb. He assumed during that struggle K[....]
was cut on her
shoulder area. (Court recorded two scars on the back portion of the
thumb, three to five millimeters long). Muzi
Shange, his younger
brother Sphe and Siphokuhle Ngcobo came from the direction of the
shop running. He was now in possession of
the broken bottle. K[....]
apologized to him. He chased her away. He went back to continue
drinking. He received a message from
the owner of the store he was
working for, telling him to go and sleep to prepare to do orders the
next morning. Before he could
leave, Siphelele Ngcobo, his younger
brother requested him to give him RS0.00 because he wanted to
continue drinking.
[40]
The first plaintiff testified that he then left, Siphelele and his
friends went with him. Those who accompanied him were
Siphelele,
Siphesihle and the second plaintiff. He arrived at his home, which
was about three minutes away, he took the R50.00
and he gave it to
Siphesihle. Siphelele and the other companions remained there for a
short while, and they left, and he went to
sleep. He and Siphelele
occupied the room he slept in.
[41]
The first plaintiff testified that he woke up in the morning. Few
members of the community arrived and accused him of
killing the
deceased and they started to assault him. He ran away. They were
about seven or eight. They were carrying sticks and
one Madonsela of
the community forum was carrying a firearm. He heard a siren from a
police van, and he ran towards where it was
coming from. Another
group of community members apprehended him before he could reach a
police van. They caught him because that
group approached from the
direction he was running to. He was further assaulted, but with
sticks whilst on the ground and stamped
on. In his home, he was
assaulted with sticks, and he blocked the blows with his arms and
hands. He asked to be taken to the scene.
One boy stabbed him in his
left hand. He was also hit on the head. He sustained wounds on the
back of his head. He was bleeding
from the wounds. He was taken to
the scene where there was the body of the deceased. He found that
there were police at the scene.
It was said he must see what he had
done. He requested to see the dead person because he did not know
her. He removed the covering.
He was being assaulted and told to eat
the body. He fell onto the body. The police intervened.
[42]
The first plaintiff testified that hearing people saying he must be
beaten to death, he asked Ntshele, a police officer
to ask if there
is a person who saw him killing the deceased to come forward. Ntshele
took a police force loudspeaker and asked
that anyone who saw the
first plaintiff killing the deceased must come forward. No one came
forward. Ntshele said to K[....] why
was she now not coming forward
because she said it is the first plaintiff and his companions who
killed the deceased. K[....] said
she did not say it is them who
killed the deceased, but she said she suspected them, he was then
taken into a police van. He said
his knees were weak, W/O Mthembu and
Ntshele assisted him to the police van. (The Ntshele he pointed out
in court it turned out
his name is Zamokwakhe Raymond Dlamini).
[43]
The first plaintiff testified that he was taken to Taylor's Halt
police station. He was given forms he signed, and he
was told those
were his rights. He was informed of the charges, of the right to a
legal practitioner and the right to remain silent.
He was then
transported to Plessislaer Police station. W/O Mthembu did come to
him whilst he was at Taylor's Holt Police Station.
Mthembu hurled
insults to him. Again, at Plessislaer Police Station, his
constitutional right was read to him, and he was put in
the cells. He
signed the document notice of rights; he understood the rights
explained to him. In the morning, Victor Nene woke
him up. He was
with Madlala. Nene beat him with a fist before taking him out of the
cell. Madlala beat him with an open hand. They
took him to a room
wherein was W/O Mthembu. Mthembu was sitting on a chair with a table
in front of him. He had papers before him
on which he was writing. He
said Mthembu told him that he was not there to fight with him, but it
will be a problem if he makes
a fool of him. Nene and Madlala stood
behind him. His hands were handcuffed on the back. Mthembu read to
him what he said it was
a statement of his co accused stating that
they went to a room, took out a female they assaulted, raped and
killed her. He told
Mthembu that he did not know anything about that.
Nene and Madlala when he denied hit him. Nene hit him on the head
with a butt
of a firearm on the left-hand side in the middle of his
head on the left- and right-hand sides. Nene was not directly behind
him,
but he was on his right and he could see when he assaulted him.
To stop the police from assaulting him, he agreed with whatever
they
read to him. He told Nene that in fact Nene knew that he did not even
know where the deceased stayed. Nene said he was fooling
them around.
[44]
The first plaintiff testified that he was then taken to Edendale
Hospital. The wounds were stitched at the hospital on
the rib area,
left thumb and the pointing finger. He was given some painkillers. He
was taken back to Plessislaer Police Station
and placed back into the
cells. The following day Mthembu and Madlala booked him out and he
was taken to doctor Soni. He was with
Siphokuhle Mkhize and
Siphesihle Ntshele. Mthembu told him to study whilst in prison, and
not to make a fool of them by denying
everything when in court. When
doctor Soni examined him both Madlala and Mthembu were present. He
told the doctor, as he was busy
examining him, that there are the
police officers who assaulted him, and they assaulted him with a
firearm. After the examination,
they went back to Plessislaer Police
Station where they found Col. Mlangeni in the charge office. W/O
Mthembu took him Col Mllangeni.
Mthembu gave Mlangeni some papers
after he told him to Mlangeni. Col. Mlangeni took him to his office.
He told him that now that
he had admitted to the offences, if he goes
to prison, he must behave so that he would not stay for too long, and
he must study.
He told Mlangeni that he was assaulted, and he did not
know anything about the offences. Mlangeni said he was not there to
listen
to his stories. He brought him there to sign, he was in a
hurry to go to Boston. He then signed the papers as mentioned by
Mlangeni.
He was taken back and placed in the cells. He did not get
an opportunity to read the document. He signed before Mlangeni and it

was not explained to him.
[45]
The first plaintiff denied that after leaving the shop, he went to
K[....]'s home and he was with K[....]'s mother. He
said he did not
know K[....]'s mother, and he did not know the whereabouts of
K[....]'s home. The first plaintiff testified that
whilst on 18
December 2010, he was at the scene; Siphokuhle Mkhize was fetched
from his home and brought to the scene. They were
both placed in the
police van. He did not know how Siphesihle Ntshele was arrested, he
saw him at the police station. He denied
there it is Nene who
protected him from the community. He said Nene was the first person
to assault him. Nene also told Ntshele
to release first plaintiff to
the community to assault him again. It is Ntshele and Zuma who took
him to Hospital. It is only Ntshele
who was nice to him, the other
police officers believed he was responsible for the offences. He
denied that he raped the deceased;
he said he did not even know her.
He denied that he was at any stage in possession of a knife.
[46]
The first plaintiff under cross-examination testified that he worked
at Mortel Store doing counter duties by selling
items to customers
and he also placed orders and received goods from suppliers. He knew
constable Dlamini as Ntshele as he usually
visited the store. The
store also served as a nightclub during weekends. On 17 December 2010
he had been in town to make orders.
He came back at about 17h00; he
went home and returned at about 19h00 to the store, he knew Remember
and he was at the store that
evening. He did not see Remember
proposing love to Nokuhle. After his first altercation with K[....],
it was about 3 or 4 hours
when the second altercation took place. She
hit him once with a beer bottle with beer and he grabbed her. He
sustained a small
open wound above the right eye on the hairline.
(The court noted 1.2 cm scar above eyebrow plus /minus 5 to 8
millimetres round
indentation wound). He did not receive at any
stiches in the wound. When K[....] hit her, she was with five or six
companions.
He said he held the right hand of K[....] with a broken
bottle and bend it towards her which may have caused injury on the
right
upper arm. K[....] screamed and said' you have just injured
me'. and she apologised to him, and he chased her away telling her to

leave. He said one of those who drank with them was a Mr Khumalo from
Mafakatini in a homestead with taxis. He said when he went
to his
home, his brother Siphelele, Siphokuhle Mkhize and second plaintiff
accompanied him, they left the room after he had gone
to bed. When he
woke up in the morning, he saw his brother Siphelele.
[47]
The first plaintiff testified that when he fled pursued by members of
the community he was wearing a white T-shirt, a
J exchange jacket
scotch in colour and navy 3-quarter pants and the slops or sandals on
his feet. He gave the jacket, the t -shirt
and 3 quarter pants to the
police on Sunday and they brought him other clothing's, a pair of
long pants and a shirt. He confirmed
that his constitutional rights
were explained to him at Taylor's Halt Police station on the morning
of his arrest, which he did
not remember who did so.
[48]
He testified that Nene and Madlala assaulted him by slapping him when
they took him to Mthembu. He said Mthembu told
him that he had been
told the truth by Siphokuhle Mkhize. He read to him what he said it
was said by Mkhize. He read it in sections
and asked him whether it
was so, if he said it was not so, he was assaulted. He would be
assaulted until he agreed with what Mthembu
was saying it happened.
They were telling him he did the crime of the murder and rape with
Siphokuhle. He said because of the assaults,
he ended up saying he
attempted to rape the deceased, but he could not get on erection.
[49]
The first plaintiff was cross examined about what W/O Mthembu said in
his statement, but it is not necessary to refer
to it because no
statement by W/O Mthembu was proved,
[50]
The first plaintiff called his brother Sphelele Ngcobo as a defence
witness. Siphelele testified that he was eighteen
(18) years old with
Grade 10 level of education. On 17 December 2010, he was at Mortel
store. He was drinking liquor with Mthobisi
Madlala and Bhekani Zuma.
First plaintiff was at the store drinking. He saw first plaintiff
quarrelling with K[....] about 4 metres
away. He went to them, and he
stopped them. He told first plaintiff to leave K[....] and not to
talk to her anymore. He heard K[....]
calling the first plaintiff a
thug. After he separated them, the first plaintiff went, and he sat
down, and he continued drinking.
Later whilst he was outside standing
in the verandah, he saw a group of K[....] and others. In the veranda
he was with Mlungi Shange
and Siphokuhle Mkhize. The crowd went to
where the first plaintiff was. He and his companions also proceeded
to where the first
plaintiff was. He arrived and he saw the first
plaintiff injuring his left hand. They took him back to the store
when he arrived
the first plaintiff was holding a bottle that K[....]
had been carrying in the shop. He testified that the shop owner
called and
told first plaintiff to go to sleep because tomorrow
morning he was going to have to wake up and go to order some stuff
for the
shop. Thy then accompanied the first plaintiff to his home
about 300 metres away. In the room, the first plaintiff gave him
R50.00.
They put him to bed, as he was very drunk. They locked the
door, and they went away. They went back to Mortel Store, and they
continued
drinking. He testified that after he finished drinking, he
went back to the room he shared with first plaintiff. He found first

plaintiff sleeping. He said when he said we, he is referring to
Siphokuhle Mkhize and the Bhekani Zuma and the second plaintiff.
When
they left, the tavern after finishing drinking each one went to their
respective homes. The second plaintiff lived about 200
metres away
from the store. They were all at that time pretty drunk.
[51]
Sphelele under cross- examination testified that when he arrived at
the tavern he found the first plaintiff with Siphokuhle
and the
second plaintiff. He arrived at about 9 or 10pm. He did not see how
the quarrel between first plaintiff and K[....] started.
He heard
K[....] calling first plaintiff Skhotheni' when he arrived to them.
He and his companions were out to the veranda to smoke.
The first
plaintiff had gone out to answer a call. He went to first plaintiff
and the group of people because there were noise
people swearing. He
accompanied first plaintiff because he was drunk and had been
involved in the quarrel and he was injured on
his hand. These two
companions came along too. He testified that the R50.00 he took he
intended to use for transport to Pietermaritzburg
the next day. He
would go with his mother to buy takkies. They did go to town the next
day at seven in the morning. The first plaintiff
left to go to the
store to buy stock. The first plaintiff got up first and he left
whilst he was still sleeping. He asked the first
plaintiff for the
R50.00 at the store. At the time first plaintiff went to answer the
call, he would not walk properly. He said
he did not see the second
plaintiff carrying a knife that evening. He is not able to say
whether Mondli, Thanda, Ntshele and a
Mr Khumalo were there because
he did not know the other people. He confirmed that he asked for
R50.00 for first plaintiff because
he wanted to continue drinking.
Since he had already spent the monies, his mother gave to him for
transport.
[52]
The second plaintiff testified as follows. He went to Mortel store on
17 December 2010 after he was done with his household
chores. Sinhie
Ntshele arrived, and they drank together. Thereafter the first
plaintiff arrived. They were drinking and dancing.
K[....] who was
drunk, came to him. He was a crowd which converge where first
plaintiff was. In the crowd was K[....] and she continued
with her
talks of 'Skhotheni's as she did inside the tavern. The first
plaintiffs brother said they must get back to the store
and continue
drinking. A person selling on the store called first plaintiff after
that they took first plaintiff to his home and
put him to bed. It was
he, Sphelele Ngcobo and Siphokuhle Mkhize. They chatted with first
plaintiff for a while, and he fell asleep.
Siphelele closed the door,
and they went back to the tavern. The first plaintiff and the other
people were drunk.
[53]
He saw the first plaintiff giving money to Siphelele before they
left. They did not stay for a long time at the tavern
because it was
already late. They put their money together and bought liquor. They
left the tavern on their separate ways. He testified
that on Saturday
morning his mother woke him up four o'clock to go to the ploughing
the fields. They worked at the field, and they
finished about
mid-day.
[54]
He testified that on 20 December 2010 Mthembu and Madlala who were
with other police officers arrested him. He was at
home. They asked
whether he was Muzi and he said yes. They started hitting him. They
accused him of killing a girl. He told them
that he did not know
anything about that. They entered the house. They took his T-shirt.
They handcuffed him on the back. They
put him on their vehicle. They
said he would tell the truth. Madlala hit him on his private part.
They took him to Taylors' Holt
Police station. They put him in a
place crowded with people working at the police station. He was then
taken to Northdale Hospital
and thereafter to Doctor Soni. Dr Soni
asked him to undress and examined him: thereafter he was taken to
Plessislaer police station.
Mncwabe on Tuesday came to him. He took
him out of the ells to where a statement was taken down from him.
Mncwabe read to him his
rights. He said he must sign on the
documents. The document with rights was read to him in English and it
was explained to him
in Zulu. He was also asked to sign exhibit N but
it was not explained to him what it was. He said he knew nothing
about what was
contained in the exhibit N. He said when Mthembu came
to arrest him, he said it is alleged that he put the knife in the
toilet;
he said he was told by his friends. It is Mncwabe who asked
to sign the documents not constable Madlala. His level of education

is grade 11. Police from his roorri took a t-shirt and his track
pants. Mncwabe said to him, if he did not sign the documents,
the
same thing that happened at his home would happen. He understood that
he would be assaulted again.
[55]
He testified that in the store K[....] came and pushed him. Before
that females in K[....]'s company asked to share in
their drinks, and
the first plaintiff told them that is not possible because they all
contributed in buying the liquor. He said
K[....] also pushed first
plaintiff and she said to her friends who were dancing with first
plaintiff, why were they dancing with
"Skhotheni". After
that, he saw Siphelele telling first plaintiff to leave K[....], and
they went to the back and continued
drinking.
[56]
He said whilst standing in the veranda with Siphelele and Siphokuhle
smoking, a crowd gathered around first plaintiff.
He went to see what
was happening. K[....] was talking, first plaintiff was injured.
First plaintiff told them that he got injured
whilst fighting with
K[....]. K[....] apologised to the first plaintiff. They went back to
the tavern, and they continued drinking.
[57]
The second plaintiff under cross-examination, he said Siphokuhle
Mkhize also came and drank with them, others were on
the other side.
He is not sure, but it is possible that at some stage Mondli drank
with them, just like Thanda Ntshele as well
as a Mr Khumalo. He
thinks K[....] pushed him because he was dancing with her friends.
He, Siphokuhle Mkhize and Siphelele went
home with first plaintiff.
They assisted first plaintiff who was drunk to get home. He thought
Sphelele would use the money to
buy liquor, but he did not know
whether it was used.
[58]
The second plaintiff stated when he was arrested in the morning at
his home, both Madlala and Mthembu assaulted him.
Mthembu hit him on
his face with open hands. They put him in the house and Madlala
assaulted him also by slapping him on the face.
In the motor vehicle
whilst handcuffed at the back, Madlala squeezed his private part
saying he would tell the truth, Madlala was
left at Taylor's Halt
Police Station but later he found him at Plessisslaer Polcie station.
No rights were explained to him at
Taylor's Holt. He said Dr Soni
spoke to him in English and Mthembu interpreted for him. He did not
tell the doctor that police
assaulted him. He finished to Dr Soni,
and he was first taken to his home and thereafter to Plessislaer
Police Station. They went
to his home to fetch items of clothing he
referred to earlier.
[58]
The second plaintiff testified that when they arrived at Plessislsaer
Police station Madlala booked him into the cells.
The following day
on 21 December 2021 Mncwabe book him from the cells and book him to
the room where statements are taken. They
sat on a table and Mncwabe
explained his rights to him. He said Mncwabe did not ask him any
questions and he did not tell him how
he and his co-accused committed
the crimes Mncwabe said if he did not do as required what the other
police did to him would happen
again. He then signed as requested,
Exhibit N, which is a document that already had been filled. Mncwabe
then told him that what
he had signed was a statement wherein he was
admitting that he committed the crimes. He learnt when he consulted
with counsel of
the contents alleged to be his statement. He was
asked why the police officers would in his statement accuse for
committing the
crimes, he said police officers know how trials are
conducted.
[59]
The second plaintiff, contrary to what was put to witnesses by his
counsel, said he was not beaten by any police officers
at Taylor's
Halt, he was not taken from the cells to Mncwabe's office by Mthembu
and Madlala, that at his home from Doctor Soni
he was threatened with
violence whilst being booked in at Plessislaer police kept
threatening him, at the time he was arrested
he was highly
intoxicated.
[60]
After the defence closed its case, the court called two witnesses,
namely Siphokuhle MKhize and Ntombi Crethina Mthalane.
[61]
Mkhize testified, after he was warned in terms of
s204
of the
Criminal Procedure Act 51 of 1977
, testified as follows. On the
evening of 17 December 2010, he was at Mortel store with both
plaintiffs. He after considerable period
left with his brother Lango
to his residence. The next day in the morning community members took
him to the scene. He was thereafter
placed in a police van.
[62]
Mkhize under cross examination testified that he knew K[....] by
sight. He did not witness any altercation between her
and the first
plaintiff. He knew Siphelele and he saw him on 17 December 2010 at
Mortel Store. He did not at any stage accompany
first plaintiff with
Siphelele and second plaintiff to their home. He left the Mortel
Store at 23h00.
[63]
Mthalane testified as follows. She testified that she was the mother
of the deceased. On 17 Dec 2010 after the soapy
Generations, the
deceased left her retiring to sleep in her room. K[....] soon
thereafter phoned asking her to come and meet her
on her way home.
She told her that she was at Dombi's residence. She asked K[....]'s
brother to accompany her, but he refused.
She phoned Khetiwe and told
her to sleep at Dombi's residence. After a while there was a knock on
the door. She asked who it was.
The person knocking said he was Sgodo
Ngcobo residing at the close proximity to Mortel Store. She asked him
what he wanted, he
said he wanted to render assistance to her. He
also said K[....] is here, she has been slapped and she is in the
company of her
two friends from Mphophomeni Township. She then walked
out of the house. Sgodo exclaimed saying was she also present
referring
to her as aunt. She told him it was insignificant who she
was, he must show her K[....]. She and Sgodo walked off the yard.
They
walked two paces from the gate, the grandmother was standing at
the gate. She asked Sgodo if he was carrying a knife. He denied

carrying a knife. He asked her what caused her to think he was
carrying a knife. She told him evil spirits possessed her and she

would detect if he was carrying a knife. She told him that the knife
he was armed with he had used to kill a person and that God
will
enlighten her as to who is the person he killed with a knife.
[64]
She testified that it was her first time to see that person. She
whilst in the company of Sgodo she saw K[....] approaching.
She asked
Sgodo who is the person approaching because he said K[....] had been
stabbed. K[....] walked past. K[....] shouted at
her grandmother to
alert her that she had been stabbed. She turned around and walked
away.
[65]
Sgodo said these vagrants from Mafakathini should not ridicule him;
he just wanted to keep an eye on her so that these
vagrants could not
fool them around. He and Sgodo walked into the house wherein was
K[....] and grandmother. The grandmother said
to light up the house
so that I can establish how extensive are the stab wounds on K[....],
but she said the house should not be
lighted up. She said so because
she was scared. The house was eventually illuminated by cellphone
light after she instructed them
to do so to see how K[....] was
injured. Sgodo also showed his cellphone light. K[....] then said,
"mother I thought you are
in the company of my brother but
instead you are in the company of the person who stabbed me."
Then a verbal argument ensued
between K[....] and Sgodo and the
grandmother ran out of the house. She reprimanded them.
[66]
She testified that the grandmother went out of the house with the
sole intention to call the deceased. She returned and
said Lindani
was not there. Sgodo ran away. She looked out for Sgodo but the
grandmother reprimanded not to pursue Sgodo. She returned
to the
house. She sent her son Sbo to go and look for Lindani in the toilet.
He came back and reported that Lindani was not in
the toilet. They
remained seated until they got some help the next morning. The body
of Lindani was recovered on that next morning.
[67]
She testified that the two men who accompanied K[....], she did not
know them. She asked who they were, one said he was
Nhlanhla Bhengu
and the other one was a Ngcobo. They did not enter the premises, they
walked past. She said she knew the first
plaintiff. She saw him on
that day when he came, and he knocked at the door. He introduced
himself as Sgodo. She said she has never
discussed with K[....] how
she got stabbed. She worked far from home. She visited maybe once a
month, sometimes she did not find
her at that time. She noticed that
K[....] was injured at the back of her left shoulder, she did not
stop as she walked past because
she was busy establishing the
identities of her companions. Two cellphones were used to light the
house, one by K[....] and the
other one by Sgodo. The deceased's room
was about 12 meters from the room in which they were. When told that
the first plaintiff
was never in the home and never spoke to her, she
said he was at home because he was wearing black shorts and his
jacket tied around
his waist.
[68]
The state as its last witness lead evidence of Dhanraj Money who
performed a postmortem examination of the deceased.
He stated that
his chief postmortem findings where there was history of stabs and
rape. The findings being multiple clean-cut wounds
on the body of the
deceased, and that the weapons penetrated the left and right lungs
and the heart. The injuries on the body were
a linear clean-cut
wounds on the body, as follows: 1) two wounds close together outside
the external genetalia measuring 2cm x1.5
cm, three wounds on the
outside of the right external genetalia measuring 1.5 cm x2cm and 3.5
cm long. A clean cut wound in the
mid line of the chest to the
abdomen from the level of the fourth coastal cartilage to symphysis
pubis measuring 45cm long and
the small intestines exposed through
the wound, three wounds in the left epigastrium measuring 2cm long
each, fifteen cut wounds
in the region of the left chest cavity
between the clavicle and the fourth coastal cartilage each measuring
2.5 cm, 1.5cm and 1cm,
in the left mid clavicular line at the coastal
margin where the ribs end and 2.5 cm wound; two wounds across the
interior neck
at the level of the thyroid cartilage measuring 12cm
and 10cm each; in the interior neck between the chin and the surface
of the
chest and the clavicle between sternomastoid muscles there
were six wounds each measuring 7 cm x 5cm x2 cm. In the left cheek
there
were seven wounds ranging from 2.5 cm to 1.5 cm each; In the
right cheek to the nose were six wounds measuring 3cm to 1cm each;
In
the right upper parietal a wound measuring 5cm long across; behind
the left mastoid bone two wounds measuring 4 cm and 3.5 cm
; across
the palm of the 2nd /3rd/4th fingers three wounds each measuring 1.5
cm; three wounds close together around thoracic 8
vertebra measuring
1.5 cm and 2cm each over thoracic one vertebra, in the left buttocks
three wounds measuring 3cm/ 2cm/ 3.5 cm
; In the right buttocks two
wound measuring 2.5 cm x 3cm. Both lungs and the heart were
punctured. The entire abdomen cavity and
the pelvic cavity was soiled
with dagga particles as if when the abdomen was opened by the long
lengthy wound, the dagga particles
was scattered into the abdomen.
There were no injuries to the internal or external genitalia, which
meant there was no medical
evidence to confirm forceful sexual
penetration. In total, there were forty-nine wounds.
[69]
Zamokwakhe Raymond Dlamini in an affidavit stated that on 18 December
2010 he received a complaint of murder at Mafakatini
Location. He
proceeded to the scene. He found two suspects that were unknown to
him who were already apprehended by the community,
their names are
Thembelani Ngcobo and Siphosihle Mkhize. Thembelani was assaulted
with injuries on the head and body. He introduced
himself that he was
a police officer and he showed them his appointment certificate, then
he told them that they are under arrest
for the suspicious murder
case. He informed them of their constitutional rights and the then
arrested them and detained them at
Plessiaslaer SAPS. The
investigation Diary of Taylors Holt SAPS CAS 116/12/2010 has an entry
dated 18 December 2010 time 06:00
stating "Deceaced: Sali
Mthalani near MaMbilini Butchery.
Suspect:
Unknown at this stage:      Witness:      No

witness at this stage.Scene of crime: Mafakatini Location below
Mambilini Butchery: Date and time: 2010-12-18-at 05:00 Statement
of
arrest of Cst Dlamini: Filled as per A3: Statement of the informant
obtained and filled as per A2: SAPS 70 of Thembelani Ngcobo
filled as
per B2: Further entries show on 19 Dec 2010: A warning statement was
obtained from Thembelani Ngcobo, also from Siphosihle
Mkhize, and a
statement obtained from Siphesihle Ntshele. On 20 DEC 2010 it is
recorded that seized exhibits be sent for DNA analyses
purposes.
[70]
Sihie Ntshele was arrested on 18 December 2010 at 20:20 and his
statement obtained as AB and released on 20 Dec 2010
at 07;00. On 27
May 2011 the OPP advised that he was unable to make a decision in
this matter pending DNA results and requested
forensic science lab to
expedite results.
[70]
Mthembu on the day the body was found, found a black shoe near the
deceased, another shoe not far from the body, a grey
pair of jeans
with blood stains, a T-shirt blue in color written (SSV
Markranstadiot; and in red www soccer Leispzig torn off and
t-shirt
had blood stains, and he also noticed blood drops leading to the home
of the deceased about 100 meters away, and at the
entrance to the
deceased's home he found a pair of bluish sandals. He also found
blood stains inside the room as well as on the
mattress and on the
mirror.
[71]
Mthembu in his statement of arrest of second plaintiff on 20 Dec 2010
at 07:15 stated that as follows; the second plaintiff
came out to
him. He introduced himself to the second plaintiff. He asked the
second plaintiff for a weapon that was used to kill
the deceased. He
said the first plaintiff directed him to the second plaintiff and
told him that a murder weapon was with him.
The second plaintiff then
admitted that the murder weapon, an okapi knife, was taken by him
after the commission of the offence.
He pointed to the toilet where
he had thrown the knife. He went and looked at the toilet, which was
half-full, and he did not see
anything. He went to the room of the
second plaintiff. The second plaintiff gave him a blue T-shirt full
of bloodstains. The second
plaintiff admitted that he stabbed and
raped the deceased. He then placed the first plaintiff under arrest,
and he explained to
him his constitutional rights.
[72]
The defendant in the amended plea admitted that:
1.    the
plaintiffs were arrested at or near Mafakatini in Pietermaritzburg
under case number Taylor's Halt
GAS 116/1212010; 2 the plaintiffs
were initially detained at Taylor's Halt Police Station and
subsequently at Plessislaer Police
Station and Pietermaritzburg
Correctional Centre; 3. The bail was opposed and was subsequently
refused by the Pietermaritzburg
magistrate's court.
[73]
The defendant in amplification of its plea pleaded that: 1.the first
plaintiff was arrested on 28 December 2010 and the
second plaintiff
was arrested on 20 December 2010. 2 the plaintiffs arrest and
detention were unlawful in accordance with the following
provisions
of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the
CPA).
3.    the
members of the South African Police Service who arrested the
plaintiffs were peace officers as defined
in the CPA. 4. there was a
reasonable suspicious that the plaintiff's had committed the offences
of murder alternatively, the offences
of murder and rape envisaged in
schedule 1 of the CPA. 5. the plaintiffs were convicted in October
2013 and sentenced on 10 October
2013. 6.the defendant and its
employees acted at all reasonable times material to the arrest and
critical detention of the plaintiff
with reasonable and probable
cause as the evidence pointed to their complicity in an assault, rape
and murder of the deceased,
and an assault of the deceased's sister
B[....] K[....] Mthalane, arising out of:
(i)    information
supplied to the police by members of the community at Mafakatini
location, Pietermaritzburg,
that the first and second plaintiff
participated in the rape and murder of the deceased and in respect of
first plaintiff in the
assault of the deceased's sister; and
(ii)    by
virtue of statements made in the form of affidavits, duly attested by
Commissioners of oaths, by
(a) the first plaintiff be Luet Col
Mlangeni on 19 December 2010; (b) the second plaintiff to Capt J.V
Mncwabe on 21 December 2010.
(iii)    by
the implication of the second plaintiff in the commission of the
crimes against the deceased by
the first plaintiff.
[74]
The defendant admitted that bail was opposed, inter alia, on a proper
legal basis, which included concerns for the safety
of each of the
plaintiffs at the Mafakatini community intended killing them for the
said rape and murder, once bail was denied
continued detention was at
the specific instance of the Ministry of Justice, not defendant.
Further, post -refusal of bail, the
continuation of the prosecution
of the plaintiff was at the specific instance of the National
Director of Public Prosecution and
/or the Ministry of Justice, and
not the defendant.
[75]
K[....] in this court testified that at the tavern she spoke to
Remember who was in a relationship with her sister and
told him that
he could not propose love to one of her companions. She then went out
leaving. The first plaintiff when he had outside
and attacked her
stabbing her with a knife on her upper arm. She held the knife and
wrestled over it with first plaintiff. Thew
first plaintiff managed
to take the knife and he walked up walking away from the tavern. She
went to Themba Ndlovu's nearby house
and she phoned her mother to
come and meet with her. Her mother after about two hours arrived and
she went out to meet with her
mother. Her mother was with a male
person she thought it was Siboniso her brother. They walked back to
her home. They arrived and
knocked for grandmother to open for them.
Her grandmother opened for them and K[....] put on a cellphone light.
She saw that the
male person in their company was in fact not
Siboniso but the first plaintiff. She asked the first plaintiff what
he wanted there
because he had injured her. The first plaintiff said
he was helping her. They asked where the deceased was. The
grandmother went
to look for the deceased in her house. She came back
and she said the deceased was not in her house. The first plaintiff
walked
away. She said at the motel she had not quarreled with the
first plaintiff, and he had no reason to attack her. Her grandmother

and her mother did not know the first plaintiff, but Siboniso knew
the first plaintiff. Both her grandmother and her mother had
passed
away, but Siboniso was still alive. In my view, the claim by K[....]
that the first plaintiff came to her home is not supported
by any
other evidence. The first plaintiff and other witnesses testified
about what caused conflict between the first plaintiff
and K[....] at
the motel. In my view, it is clear that K[....] either does not know
what happened at the motel or she is deliberately
not telling the
truth. But clearly, the plaintiff's version of what happened at the
motel is supported by other evidence, logical
and in accord with the
probabilities. K[....]'s evidence that a flipflop found that morning
in the gate of her home and a blue
jacket found near a manhole not
far from the body of the deceased depicted in the photos both
belonged to the first plaintiff carries
no weight in that it is bald
statement denied by the first plaintiff and not supported by any
other evidence which also played
no role in the arrest of the first
plaintiff.
[76]
It is not, for purposes of this judgment, necessary to repeat
summaries of the evidence presented before this court of
the evidence
given in the criminal proceedings except to point out where that
evidence appear to be inconsistent to the evidence
in the police
statements or to the evidence given in the criminal case.
[77]
The only witness who testified before this court but did not testify
in the criminal trial is Nkosinathi Dennis Kunene.
Kunene testified
that he a member of the Forum and an induna's councilor. He was
called to the scene. He found the first plaintiff
at the scene having
been assaulted and not wearing anything on the top part of his body.
The community accused the first plaintiff
for the killing of the
deceased and they wanted to kill the first plaintiff. They pointed at
blue t-shirt hanging near a manhole
next to a fence. The first
plaintiff scared for his life said it was his T-shirt and he had been
sent by Manqele an induna. Manqele
is an induna and a businessperson
known for slaughtering people. Manqele was there and he addressed
people to calm. He recognized
the bluet shirt as a t-shirt that first
plaintiff used to wear. He was not used to first plaintiff he hardly
knew as a boy in the
area. He did not believe that Manqele had sent
the first plaintiff.
[78]
The first plaintiff testified he was at the time 19 years old and in
school in grade 11. He worked at the Motel store
for Nkululeko
Malinga his teacher. His duties entailed placing orders for the
store. Malinga phoned him in the evening on 17 December
2010 whilst
he was at the Motel and told him to be ready to wake up the following
morning to go and placing orders for goods for
the store. He then, as
detailed in his evidence in the criminal case, left the store to go
to his home to sleep. In the morning
he woke up and he proceeded to
the motel. He did not reach it because he came upon members of the
Forum who pursued him accusing
him of killing the deceased. He ran
back to his home where he was assaulted, and he had to flee again.
[79]
In my view, the evidence establishes that at the time that second
plaintiff was arrested by Mthembu on 20 December 2010
no member of
the community had made a statement implicating the second plaintiff
to any crimes. Mthembu told the second plaintiff
that he wanted him
to produce a murder weapon because the first plaintiff said the
murder weapon was taken by him after the commission
of the crime.
Mthembu knew or ought to have known that a confession is only
admissible against the confessor. He could not use
the confession of
the first plaintiff as evidence on which to arrest the second
plaintiff.
[80]
Further, in my view, the evidence shows that the first plaintiff was
not arrested for the assault on K[....]. Dlamini
arrested the first
plaintiff for the murder and rape. Dlamini when he arrested the first
plaintiff did not have any evidence or
information that the first
plaintiff had committed the murder and /or rape of the deceased.
K[....] advised the police that she
suspected the first plaintiff for
killing the deceased. She never gave a statement from which
reasonable suspicion could be formed
that the first plaintiff was
involved in the killing of the deceased. Gavin Nene with others
pursued the first plaintiff and apprehended
him. Nene too had no
grounds on which a reasonable suspicion could be made that the first
plaintiff was involved in the killing
of the deceased. Even if
Dlamini placed the first plaintiff in the police van on Mthembu's
instruction meaning that Mthembu effected
the arrest of the first
plaintiff through Dlamini, Mthembu had bases on which a reasonable
suspicion could be made that the first
plaintiff was involved in the
murder of the deceased. The police were well aware of the manner the
first plaintiff was apprehended
and that he had been assaulted. They
were aware too of the threats by the community directed at the first
plaintiff. It was irregular
for the police to allow the community to
interrogate the first plaintiff and they could not rely on anything
said by the suspect
during such an interrogation.
[81]
It is trite that the police officer effecting an arrest must
entertain a suspicion that the plaintiff committed a schedule
1
offence. The suspicion must be based on reasonable grounds (s40
(1)(b) of the CPA). See Minister of Law-and-Order vs Hurley and

Another
1986 (3) SA 568
A at 589 E-F; Daman v Minister of Law and
Order 1986(2) SA 805 (A) at 818 G-K; MR v Minister of Safety and
Security
2016 (2) SACR 540
(CC) para 46, Minister of Safety and
Security v Sikhoto
2011 (5) SA 367
(A).
[82]
The defendant admits that subsequent to the arrest of the plaintiffs
and their detention it charged them. The arrest
and the charging of
the plaintiffs set the law in motion against them. In the case of
malicious prosecution based on actio unjuriarum,
in order to succeed
in a claim for malicious prosecution a plaintiff must establish that
the defendant: - (a) set the law in motion
(instigated or instituted
the proceedings);
(b)
acted without reasonable and probable cause, and (c) acted with
malice (animo injuriandi; and (d) the prosecution failed. (Minister

of Justice and Constitutional Development & Others vs Moleko
[2008] ZASCA 43
;
2009 (2) SACR 585
(A); Woji vs Minister of Police
[2014] ZASCA 108
;
2015 (1) SACR 409
(A).
[83]
The defendant admits that it opposed bail and that resulted in the
further detention of the plaintiffs. The charge of
assault is
irrelevant because if first plaintiff was facing only a charge of
assault the application for bail would not have been
opposed, in
particular, for the reason mentioned in the plea. If the defendant
did not have what it regarded as evidence against
the plaintiffs, it
would not have opposed bail. The probability is that it would have
released the plaintiffs without charging
them. The defendant was not
entitled to oppose the release on bail of a suspect against whom
there was no evidence because the
community was threatening to kill
him.
[84]
The only question relating to malicious prosecution is whether the
defendant acted without reasonable and probable cause
and whether it
also acted with malice /or animo injuriandi) The charging and the
prosecution of the plaintiffs was founded on the
warning statements
taken by Col. Mlangeni and Capt. Mncwabe form the first plaintiff and
the second plaintiff respectively. The
criminal court stated that it
was undesirable for police officers involved in the investigation to
take confessions from suspects
the fact that it is undesirable does
not mean it is inadmissible per se, the accused must plant a seed of
suspicion in the mind
of the court and that easily be done when the
accused testifies of assaults and threats and that evidence can
reasonably possibly
be true, the issue of undesirability relates
hand-in-hand with the fact to establish whether there was improper
inducement, if
the evidence of improper prior inducement is rejected
as being wholly untruthful and incapable of credence the undesirable
environment
on its own cannot constitute sufficient basis to give
rise to reasonable doubt as to whether the confession was freely and
voluntarily
made, police officers have the right in terms of the
legislation to take confessions and the courts cannot, under the
guise of
assessing whether the confessions were freely and
voluntarily made without any undue influence being exerted on the
accused remove
that right, and the utilizing of an interpreter and
police officer of the same unit is undesirable and it goes without
saying that
if the officer and the interpreter is the same person
such as the fact in casu the undesirability may even be greater.
The
criminal court for its conclusion in the trial-within-a-trial
accepted the evidence of the police. It attached no weight to
the
following factors which were common cause, namely,
(1)
the alleged confessions were the only evidence against the
plaintiffs,
(2)
Col Mlangeni, Capt. Mncwabe and W/O Mthembu were members of the same
investigation team investigating the
case against the plaintiffs Col
Mlangeni being the branch commander and W/O Mthembu the investigating
officer.
(3)
Col Mlangeni before he took the warning statement from first
plaintiff had visited the scene on the day of
the arrest of first
plaintiff and whilst first plaintiff was at the scene, inspected the
scene and interviewed and obtained statements
from witness and co­
suspects.
(4)
Capt. Mncwabe before he took the warning statement from second
plaintiff was briefed by W/O Mthembu the investigating
officer.
(5)
Col. Mlangeni, Capt. Mncwabe and W/O Mthembu beforehand knew that
what was to be taken from first plaintiff
and second plaintiff were
confessions but went on to take confessions in the guise of taking
warning statements.
(6)
Both Col. Mlangeni and Capt. Mncwabe knew that they were taking
confessions but used proforma for taking warning
statements and
followed a procedure for taking warning statements
(7)
Both Col. Mlangeni and Capt. Mncwabe did not tell the plaintiffs that
they were brought to them to make confessions
and advise them of the
options available to them as to whom they can make confessions.
(8)
Both Col. Mlangeni and Capt. Mncwabe knowing the different procedures
for taking warning statements and that
for taking confessions opted
to follow the procedure for taking warning statements which lacks the
additional guarantees found
in the procedure for taking confessions
(9)
The provisions of
s217
of the
Criminal Procedure Act 51 of 1977
regulate the admissibility of confessions not warning statements.
[85]
The defendant obtained confessions from the plaintiffs in the guise
of warning statements. This was done because both
the commissioned
officers involved in the process were part of the investigating team
of the charges against plaintiffs. It resulted
in confessions taken
by unqualified officers in the guise of warning statements. It
resulted in the prescribed pro forma for taking
confessions not being
used and all the safeguards followed in the taking of the confessions
not being followed. The required independent
impartiality
intervention in the process by a justice of the peace was missing. It
resulted in a fatally defective process. In
the results the
statements obtained by both Captain Mncwabe and Col Mlangeni were not
worth anything.
[86]
The said statements were obtained in overzealousness to find
something against the plaintiffs so that they would be charged
and be
taken to court. It threw the investigation out of the tracks. The
insistence that there be at least a DNA investigation
fell on deaf
ears. Initially and correctly so, the National! Director of Public
Prosecutions insisted that there be DNA investigation
results before
a decision be taken but apparently, an overzealous prosecutor
proceeded with the prosecution of the plaintiffs without
the result
of the DNA examination. It resulted in the unwary court overlooking
the fatal shortcomings in the process and it relied
on the warning
statements to convict the plaintiffs.
[87]
The warning statements constituted the only evidence against the
plaintiffs. It caused them to be detained from the time
they were
charged by the police, caused them not to be released on bail and
caused them to be tried, convicted and sentenced. In
the notice of
factual and legal causation, there is no doubt that the unlawful
arrest of the plaintiffs, the unlawful obtaining
of confessions in
the guise of warning statements and the presentation of the
confessions as evidence resulted in the detention
and imprisonment of
the plaintiffs until they were released when their appeal against
conviction and sentence was upheld.
[88]
The police particularly in a constitutional democracy have a
responsibility to ensure that in carrying out their duties
to combat
crime persons are not arbitrary deprived of their freedom or without
just cause. In Thandanani v Minister of Law and
Order
1991 (1) SA 702
(E) it was held "sight must not be lost of the fact that the
liberty of the individual is one of the fundamental rights for
a
person in a free society which should be jealously guarded at all
times and there is a duty on over courts to preserve this right

against infringement'. In Mahlangu and Another v Minister of Police
(CCT88/20)
[2021] ZACC 10
; 2021(7) BCLR 698 (CC);
2021 (2) SACR 595
CC para (32) the court held 'it follows that in a claim based on
interference with the constitutional right not to be deprived
of
one's physical liberty, all that the plaintiff has to establish is
that an interference has occurred. Once this has been established,

the deprivation is prima facie unlawful, and the defendant bears the
onus to prove that there was a justification for the interference.
[89]
The warning statements constituted conscripted evidence, which was
the only evidence against the plaintiffs. Both Lieutenant
Col
Mlangeni and Capt. Mncwabe were senior experienced officers well
aware of the procedure to be followed in taking a confession
from the
suspects but deliberately flouted the prescribed procedure to serve
their own interest. They knew and intended the devastating

consequences caused to the plaintiffs. It is immaterial that they
believed the plaintiffs to be guilty of the crimes. They acted
in law
without reasonable and probable cause and with animo injuriandi.
[90]
The plaintiffs sought to establish against the police officers an
intention to injure them as opposed to acting without
reasonable and
probable cause. But acting with intention to injure includes acting
without reasonable and probable cause4. A wrongdoer
proved to have
acted with intention may fail in claiming apportionment based on
contributory negligence from other wrongdoers and
is held solely
liable for the total damage caused to the injured party. However, in
this case the defendant is not the police officers
themselves but
their employer. The employer is held liable based on the
employer-employee relationship; the fault on the part of
the employer
is not fault in the form of intention. The employer is held liable
for the wrongs committed by its employees in the
cause of their
employment.
[91]
The National Prosecuting Authority is the country's prosecuting
authority. It has a duty to apply its mind properly before
it makes a
decision to prosecute. Its duty is more acute where the only evidence
against the accused is conscripted evidence. It
is incomprehensible
that a decision to prosecute the plaintiffs was made based on
confessions in the guise of warning statements
taken by police
officers involved in the investigation of the same crimes against the
plaintiffs constituting the only evidence.
It acted recklessly to the
prejudice of the plaintiffs.
[92]
The trial court is expected to carry out its judicial duties with
reasonable skill and care. In the case wherein conscripted
evidence
constitutes the only evidence against the accused, it is trite that
the court must approach such evidence with extreme
caution. The trial
court relied on confessions in the guise of warning statements taken
by police officers involved in the investigation.
It was a gross
dereliction of its duties. The use of any evidence created by the
participation of the accused where otherwise such
evidence would not
have existed is strictly regulated. See Magwaza v S (20169/2014)
[2015] ZASCA 36
;
[2015] 211 SA 280
(SCA);
2018 (1) SACR 53
(SCA) 25
March 2015. In Sea Harvest Corporation (Pty) Ltd & another v
Duman Dock Cold Storage (Pty) Ltd & another
2000 (1) SA 827
(SCA)
para 21, it was held that the true criterion for determining
negligence is whether in the particular circumstances the conduct

complained of falls short of the standard of a reasonable person. In
S vs Kramer & another
1987 (1) SA 887
(VO) at 894 F- H the court
noted by citing Roberg The Law of Delict (1984) vol 1 at 346, that:
The standard required is not the
highest level of competence; it is a
degree of skill that is reasonable having regard to 'the general
level of skill and diligence
possessed and at the time by the members
of the branch of the profession to which the precautions belongs.
[93]
It appears that the National Prosecuting Authority and trial court as
stated above were negligent in the carrying out
of their tasks and
their negligence contributed to the further detention of the
plaintiffs. It may also happen that there was undue
delay in
finalizing the prosecution of the plaintiffs and an undue delay in
the prosecution of the plaintiffs' appeal, but the
defendant has
chosen not to plead these issues. It remained content in pleading
that the arrest, detention and prosecution of the
plaintiffs were
neither unlawful nor malicious. The defendant did not seek to join
any other party as a joint defendant. It is
not for this court to
seek other co-defendants for the defendant. The defendant in the plea
states that 'upon bail being denied
the continued detention of each
of First and Second Plaintiffs (in their capacities as First and
Third Accused) were at the behest
of the NDPP and/or Department
and/Ministry of Justice and not the Minister of Police. This portion
of the plea, in my view, overlooks
the decisive role played by the
police in the arrest and detention of the plaintiff, in the
manufacturing of the evidence used
in opposing the release on bail of
the plaintiffs and in the prosecution, conviction and sentencing of
the plaintiffs.
[94]
The defendant, in addition, pleaded that the plaintiffs are precluded
from claiming damages because despite their conviction
being set
aside on appeal, they had committed the crimes on which they were
convicted. In particular, first plaintiff's conviction
for assault
has been confirmed and stands; first plaintiff in a written statement
admitted to the murder of the deceased and assault
of B[....] K[....]
M[....] ; second plaintiff admitted his complicity in writing in the
rape and murder of the deceased. In my
view, the guilt of the accused
for crimes is established through criminal prosecution. If the
prosecution has failed to still insist
that the accused is guilty
misses the point.
[95]
In the result, it is ordered as follows:
1.
The defendant is found liable for the damages to each of the two
plaintiffs for the unlawful arrest and detention
and malicious
prosecution up to the date of their release on 18 March 2016.
2.
The quantum of damages for each plaintiff is postponed sine die for
later determination.
3.
The defendant is ordered to pay costs including costs of two counsel
Mngadi,
J
APPEARANCES
Case
Number:
94755/2017
For
the Plaintiffs:                 Adv.
Madonsela
SC with Adv. Ndlovu
Instructed
by:                      M.H

Mathonsi Attorneys
PIETERMARITZBURG
For
the Defendant:              Adv
R Padayachee SC
Instructed
by:                      State

Attorney
DURBAN
Heard
on:                            15

October 2023
Judgment
delivered on:      20 October 2023