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[2018] ZAECMHC 6
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Matyaleni v Minister of Safety and Security (2583/2010) [2018] ZAECMHC 6 (30 January 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
Case
No. 2583/2010
In
the matter between
MANDUNDU
MATYALENI

Plaintiff
And
MINISTER
OF SAFETY AND SECURITY

Defendant
JUDGMENT
JOLWANA
J
[1]
Plaintiff instituted an action for damages suffered as a result of
unlawful arrest and detention, malicious prosecution, assault
and
unlawful search allegedly perpetrated by employees of the defendant.
However, at the commencement of the proceedings
Mr Pangwa who
appeared for the plaintiff indicated that the plaintiff was
abandoning the claim relating to the assault.
[2]
Plaintiff testified that on 18 October 2008 in the morning a bakkie
loaded with a number of people arrived at her homestead.
They said
they were looking for stolen sheep from her son, without identifying
themselves.  On the day in question there was
a cleansing
ceremony for her son, Sicelo Mpange (Sicelo) following the passing
and burial of his wife, in terms of the family tradition
and custom.
Because of this ceremony there were other local people at her
homestead in addition to her family members.
[3]
It later transpired that the people in the bakkie were people who
were looking for their stolen sheep and they were with police
clad in
civilian attire.  They were there to assist the police in
identifying the stolen sheep.  Sheep that were in her
garden
were inspected as well as the skins of the sheep that had already
been slaughtered for the ceremony.  She testified
that those
people did not identify any sheep as theirs nor did they find any
skin that they identified as that of their stolen
sheep.
[4]
However, those people insisted on taking Sicelo with them.
Members of the community intervened and refused to have Sicelo
taken
away by people they did not know.  When community members
refused with Sicelo those people left without Sicelo.
They came
back sometime later with a group of police officers who were clad in
uniform.
[5]
When the police arrived they overturned traditional beer containers,
pots with meat and kicked people in the yard.  She
was
suffocated with a plastic as a result of which she lost
consciousness.  When she regained her consciousness one of the

police officers produced a firearm which he claimed belonged to her.
She was then arrested for possession of an unlicensed
firearm. She
was thereafter taken to Libode police station where she was detained.
[6]
The defendant called Sergeant Ngcebetsha, who is defendant’s
employee and is attached to the stock theft unit in Mthatha
to
testify.  His evidence was that on 17 October 2008 he was at
work with his colleagues when they were asked by Captain Ngamle
to be
on standby.  This was because he had received information that
there was a plan to steal sheep at Mpindweni Administrative
Area,
Ngcolora Locality in Libode that night.
[7]
Later in the evening captain Ngamle telephoned him and told him that
some sheep had been stolen at Mpindweni and some shots
were fired
during the theft.  In the morning of the 18 October 2008 he and
warrant officer Pretorious were joined by the owners
of the sheep and
proceeded to Sicelo’s home as the latter was implicated in the
theft.  It was necessary that the owners
of the sheep be present
to identify the sheep.
[8]
On arrival they asked for the owner of the homestead and were
directed to plaintiff’s brother in law as plaintiff was

widowed.  They told him that they were police officers from the
stock theft unit and were following leads on stolen sheep.
They
asked for Sicelo.  They asked for permission to inspect the
sheep skins that were hanging on the kraal.  One of
the skins
was identified as belonging to one of the stolen sheep.  They
took the said skin and arrested Sicelo by putting
him and the skin in
their bakkie.
[9]
Sicelo asked to speak to the complainants for purposes of reaching a
settlement about compensation as he admitted having stolen
the
sheep.  Three young men approached them and one of them said
that Sicelo was not going anywhere and that he must jump
out of the
vehicle.  He realized that one of the young men was hiding an R1
rifle under his leather overcoat.  Captain
Ngamle told them to
retreat and call for a backup.  They then drove out of the
homestead and parked on the other side of the
plaintiff’s
homestead.
[10]
While they were waiting for the backup they heard gun fire from
plaintiff’s homestead.  Warrant officer Pretorious
shouted
that there was a gun man shooting from underneath aloe trees very
close to them.  One of the complainants sustained
gunshot
wounds.  They asked one of the complainants to drive the police
vehicle while he and his colleagues jumped to
the back of the bakkie
and returned fire.  They ran to Libode police station where they
found reinforcement contingent from
the NIU who had been tasked to
give backup support to them.  After briefing them they all
proceeded to plaintiff’s homestead.
[11]
He remained with the police vehicles while members of the NIU went
into plaintiff’s homestead.  He was later called
to
identify Sicelo.  When he got there everyone was lying on the
ground, he pointed Sicelo and returned to the vehicles.
His
colleagues from the NIU later emerged with Sicelo, the plaintiff and
one firearm that had been found in the plaintiff’s
homestead
during a search that was conducted.  Sicelo and the plaintiff
were arrested and taken to Libode police station and
charged with
resisting arrest and possession of unlicensed firearm.
[12]
The next witness for the defendant was warrant officer Thandwa
Madikizela, a member of the NIU.  He testified that they

proceeded to plaintiff’s homestead to effect the arrest and
search for the firearms that had been used in attacking their

colleagues attached to the stock theft unit.  They were all in
full uniform and on arrival at plaintiff’s homestead
they
ordered everyone in the yard to lie down.  They searched
everyone in the yard.  He took plaintiff to the flat which
was
one of the buildings in the yard and requested her permission to
search the flat and the plaintiff granted permission for the
search.
[13]
He saw a suitcase on top of a wardrobe and on searching it he found a
9mm Z88 pistol.  He asked the plaintiff for the
licence for the
firearm which she failed to produce.  He then decided to arrest
the plaintiff for possession of an unlicensed
firearm.
[14]
Warrant officer Madikizela disputed suffocating the plaintiff or
planting the firearm that was found in a suitcase in the flat.

I hasten to add that plaintiff resides with other people in her
homestead.  She was not asked who the actual occupant of the

flat was nor she was questioned about the ownership of the suitcase
in which the firearm was discovered.  These questions
were not
asked before the search was conducted, during the search or even at
the discovery of the firearm.  However, more
about this later.
[15]
This brings me to the question of the lawfulness or otherwise of the
arrest and detention.  There is no need to restate
the law about
the fact that arrest and detention are
prima facie
unlawful, a
violation of the constitutional rights and therefore the defendant
bears the onus to prove that the arrest and detention
were in fact
lawful in the circumstances.
[16]
From the plea which is unfortunately lacking in details and deficient
in most material respects the defendant pleads that the
arrest was
justified on the basis that the plaintiff was found in possession of
an unlicensed firearm.  No other basis for
the arrest is
pleaded.  However, I gleaned from defendant’s heads of
argument that the defence is based on
section 40(1)
of the
Criminal
Procedure Act 57 of 1977
.  Once again the relevant paragraph in
subsection (1) on which the defendant relies for the warrantless
arrest is not indicated.
[17]
What flows from the totality of the evidence given by both
plaintiff’s and defendant’s witnesses is that the police

were not there to arrest the plaintiff.  For instance, the
shooting occurred shortly after the police had arrested Sicelo,
and
were preparing to leave with him and the sheep skin that was
recovered.  In any event it is common cause the circumstances
of
this matter and what transpired on the day, the shooting and one
person being injured were such that it could not have been
expected
of the police to go and apply for a warrant and would have been
expected to search even without consent if same was refused.

The police needed to act quickly to save life and limb.  Mr
Pangwa correctly conceded that the search was not unlawful in
the
circumstances.
[18]
It needs to be born in mind that in her evidence which was less than
satisfactory, the plaintiff said nothing about the shooting
in her
evidence in chief.  Her     evidence under
cross examination was that she got into the house and
that she did
not hear any shots being fired.  However, the credibility of her
evidence is irrelevant as the onus of proving
the lawfulness of the
arrest and detention is solely that of the defendant.  For the
police to have lied in this respect they
would have had to lie about
the shooting, lie about retreating and calling for a backup and also
lie about the need to be assisted
by their colleagues from the NIU.
On a balance of probabilities I accept that there was a shooting
which necessitated the
police from stock theft unit to seek
reinforcement from the NIU.  This is important because it goes
to show that it could
not have been expected of the police to go and
apply for a warrant of arrest.
[19]
However the matter does not and there.  This is not any other
item whose possession is unlawful.  Even if it were
to be said
that under the
Criminal Procedure Act the
warrantless arrest was
justified the police needed to also deal with the provisions of the
Firearms Control Act 60 of 2000
.  Once again the plea is silent
about this act in circumstances in which this act makes provisions
relating to possession
of firearms and the plaintiff was arrested for
possession of unlicensed firearm.
[20]
Section 117(2)
contains these provisions, among others:
“
Whenever
a person is charged in terms of this Act with an offence of which the
possession of a firearm or ammunition is an element
and the state can
show that despite the taking of reasonable steps it was not able with
reasonable certainty to link the possession
of the firearm or
ammunition to any other person, the following circumstances will, in
the absence of evidence to the contrary
which raises reasonable
doubt, be sufficient evidence of possession by that person of the
firearm or ammunition where it is proved
that the firearm or
ammunition was found –
(a)
on
residential premises and the person was, at the time –
(i)
in
control of such premises; or
(ii)
over
the age of 16 years and ordinarily resident at such premises.”
[21]
This requires the examination of what happened immediately before
plaintiff was arrested even at the risk of repetition.
The
evidence of the defendant is that after Mr Madikizela was assisted in
identifying who the owner of the homestead was, he asked
the
plaintiff for consent to search which she granted.  He then
proceeded with the plaintiff to the flat for purposes of conducting
a
search.  His other colleagues were at this point searching other
buildings in the homestead while he proceeded to the flat
with
plaintiff.  On searching the flat he, among other things, saw a
suitcase on top of a wardrobe.  He proceeded to
open the
suitcase to search it.  In it he found a firearm rapped in a
plastic, a Z88 pistol.
[22]
He asked the plaintiff to produce a licence for the firearm which she
failed to produce.  He thereupon arrested the plaintiff
for
possession of an unlicensed firearm.  There is not even a remote
suggestion that there was any attempt to question the
plaintiff basic
questions like who owned the flat or stayed in it.  In other
words, having established that the plaintiff
was the owner of the
whole homestead it would have been necessary to establish who the
actual occupant of the flat was.  Furthermore,
the ownership of
the suitcase ought to have been important to the police at the time
the search was conducted.  Strangely,
both the occupant of the
flat as well as the owner or user of the suitcase were of no
significance to the police.
[23]
It is important to note that plaintiff testified that when the
plastic with which she was covered was removed and she regained

consciousness she saw the firearm in front of her.  Whether this
is true or not I do not know but the point is that it may
very well
be true that after searching the suitcase and discovering a firearm
Mr Madikizela dropped the firearm in front of the
plaintiff and
demanded a licencse for the firearm.  For this to happen it was
not necessary for the plaintiff to have been
covered with a plastic
or anything else.  The point I am making here is that the search
was conducted in total disregard of
the importance of ensuring that
the evidence that was sought to be found relating to the firearms
that had been used in an earlier
shooting was collected in a manner
that would ensure that those who possessed illegal firearms and
ammunition were prosecuted and
made to account for their unlawful
activities including the shooting that had occurred that morning.
[24]
If one looks at the facts it is clear that the manner in which the
search was conducted was in total disregard of the law especially
the
provisions of
section 117
of the
Firearms Control Act.  In
fact
it is clear that the search was done as if it was an end in itself.
[25]
No submission was made at all about this act by the defence when the
matter was argued and no evidence was led, if nothing
else, at least
to show that the police were aware of this act and it was in fact
complied with even if implicitly.  Even in
the plea and the
evidence that was led there was no attempt to rely on it in
justification of the arrest and detention.
[26]
The two witnesses for the defence did not make any serious effort to
discharge the onus of proving that the arrest was lawful.
The
first witness Mr Ngcebetsha could not have been expected to deal with
this aspect of the case.  The reason is not far
to seek.
He was not there when the arrest was effected.  His evidence
largely related to the events that took place
leading to the presence
of the NIU at the plaintiff’s homestead.  His evidence in
this regard provided a very useful
background that contextualized the
plaintiff’s arrest.
[27]
Mr Madikizela who conducted the search and discovered the firearm
which led to the arrest of the plaintiff made no attempt,
to explain
how the arrest could have been lawful without establishing the
details of who occupied the flat as well as the ownership
of the
suitcase in which the firearm was discovered.  The submissions
made by Mr Bembe, counsel for the defendant which seek
to justify the
arrest on the basis of the provisions of
section 40
(1) are not
helpful.  Without the police establishing who occupied the flat
and who owned the suitcase in which the firearm
was found plaintiff
should not have been arrested.  The plaintiff must therefore
succeeds in her claim for unlawful arrest.
[28]
Once the arrest is found to be unlawful it follows as a matter of law
that the subsequent detention is unlawful.  In
Minister of
Safety and Security v Tyokwana
2015 (1) SACR 597
at 605 para 31
SCA Fourie AJA summarised the legal position in the following terms:
“
The
authority of the police to detain a person is inherent in the power
of arrest.  Therefore, if the arrest is unlawful, the
resultant
detention is similarly unlawful.”
[29]
This being trite law it calls for no further elaboration.  The
detention of the plaintiff from the 18 October 2008 to
the 03
November 2008 when she was released on R1000.00 bail was unlawful.
After several court appearances the charges against her
were
withdrawn which brings me to the claim for malicious prosecution.
[30]
In his heads of argument Mr Pangwa correctly states the requirements
for this claim to succeed as follows:
(a)  The
defendant set the law in motion;
(b)  The
defendant acted without reasonable and probable cause;
(c)  The
defendant was actuated with malice (or
animus injuriandi
, and
(d) The prosecution
failed.
[31]
He then makes the following submission:
“
The
most factor which destroyed the case of the plaintiff relating to
malicious prosecution, there was no evidence demonstrating

investigation in order for the court to assess as to whether there
was a reasonable and probable cause to cause the criminal case
to be
placed on the criminal court roll.  As a result thereof the
evidence of the plaintiff remained unchallenged.”
I
have taken that reference to the plaintiff in the first line of this
paragraph was meant to be to the defendant and that it was
a
typographical error, otherwise the sentence does not make sense.
[32]
It cannot, with any seriousness be contended that the first and
fourth requirements were not met and indeed it is common cause
that
the defendant set the law in motion.  It is on the other
requirements that I now turn to.  It is convenient that
I first
deal with the fourth requirement that the plaintiff must allege and
prove, that prosecution failed.  The highest water
mark of the
defendant’s defence for this requirement is that the
prosecution had not failed.  The reason for this contention
is
that while the matter was not proceeded to finality the plaintiff was
not acquitted of the charges levelled against her.
Furthermore,
the plaintiff was remanded in custody by the court and that it was
not the responsibility of the police as they completed
their job when
they brought the plaintiff before court.
[33]
I do not understand what this submission is meant to convey as it
flies in the face of the provisions of section 35 (3) (d)
of the
Constitution of the Republic of South Africa, 1996 (the Constitution)
which reads as follows:
“
Every
accused person has a right to a fair trial which includes the right
to have their trial begin and conclude without unreasonable
delay.”
[34]
It is now almost a decade since the plaintiff was arrested and
detained and nothing has happened since the charges were withdrawn

and the charges have not been reinstated.  In my view this
amount of excessive delay is in violation of section 35 (3) (d)
of
the Constitution and therefore it cannot be used against the
plaintiff in her claim against the defendant for damages for
malicious
prosecution.
[35]
Secondly, I do not understand how it can be contended that the police
completed their job when they brought the plaintiff before
court.
Mr Madikizela, who conducted the search and arrested the plaintiff
testified that he has established that the investigating
officer of
the case has since left the police service.  It is not clear why
the investigating officer was not called to testify.
Without
his evidence I find it difficult to understand how it can be said
that police completed their job when there is no evidence
of the
matter having been investigated and the extent of that
investigation.  This is yet another clear indication of the

prosecution having failed resulting in the charges being withdrawn
and almost ten years later they have not been reinstated.
[36]
This brings me to the two remaining requirements that the plaintiff
must allege and prove.  They are that the defendant
acted
without reasonable and probable cause and that the defendant was
actuated with malice.  Some of the background to the
search and
the arrest of the plaintiff was the shooting of the police and the
people who were looking for their stolen sheep.
The shooters
and the people that forcibly removed Sicelo who, at the time was
under arrest, were people at the plaintiff’s
home.
[37]
There is clear evidence that police who were there in execution of
their duties were attacked with firearms which may have
included an
R1 rifle.  Police cars were riddled with bullets and some of
their windows shuttered.  One person was injured.
Police
and ordinary citizens could easily have died as a result of the
shooting.  Section 205 (3) of the Constitution provides
as
follows:
“
The
objects of the police are to prevent, combat and investigate crime,
to maintain public order, to protect and secure the inhabitants
of
the Republic and their property, and to uphold and enforce the law.”
[38]
The plaintiff was not at the homestead as somebody who went there to
attend the cleansing ceremony like some of the people
who were
there.  She was at her home and the owner and therefore in
control of the premises.
[39]
In
Minister of Justice and Constitutional Development v Moleka
(131/07)
[2008] ZASCA 43
(31 March 2008) the Supreme Court of Appeal
stated the legal position on both of these requirements in the
following terms:
“
Animus
injuriandi
includes
not only the intention to injure, but also consciousness of
wrongfulness:
‘
In
this regard
animus
injuriandi
(intention) means that the defendant directed his will to prosecuting
the plaintiff (and thus infringing his personality), in the
awareness
that reasonable grounds for the prosecution were (possibly) absent,
in other words, that his conduct was (possibly) wrongful

(consciousness of wrongfulness).  It follows from this that the
defendant will go free where reasonable grounds for the prosecution

were lacking, but the defendant honestly believed that the plaintiff
was guilty.  In such a case the second element of
dolus
,
namely of consciousness of wrongfulness, and therefore
animus
injuriandi
,
will be lacking.  His mistake therefore excludes the existence
of
animus
injuriandi’
.”
[40]
Van Heerden AJ went on to say at paragraph 64 of his judgment:
“
The
defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must
at least
have foreseen the possibility that he or she was acting wrongfully
but nevertheless continued to act, reckless as to the
consequences of
his or her conduct (
dolus
eventualis
).
Negligence on the part of the defendant (or, I would say, even gross
negligence) will not suffice.”
[41]
Mr Madikizela was, at worst guilty of gross negligence in proceeding
to arrest the plaintiff of possession of an unlicensed
firearm
without establishing who used the flat and to whom did the suitcase
belong.  However, I am not persuaded that he acted
without
reasonable and probable cause or that he was actuated with malice or
had
animus injuriandi
.  The plaintiff’s claim for
malicious prosecution must therefore fail.
[42]
On the question of quantum it is instructive that I should mention
that at the time of her arrest and detention plaintiff was
a 63 years
old permanent resident of Mhlanganisweni in the district of Libode.
She is semi illiterate and widowed.
On the day in question she
was hosting the members of her local community as well as her in laws
and other family members who had
come to attend the cleansing
ceremony as is normally the case in a traditional community such as
that of the plaintiff.
[43]
On 20 October 2008, the day of her first court appearance the matter
was postponed and she was remanded in custody for formal
bail
application as police were opposed to her release on bail.
Eventually she was released from custody on bail on 03 November2008,

some 16 days later.  No explanation has been given by the
defendant as to why she could not be released from custody in the

interest of justice.  Section 35 (1) (f) of the Constitution
provides that “
everyone who is arrested for allegedly
committing an offence has the right to be released from detention if
the interests of justice
permit, subject to reasonable conditions.”
[44]
In this matter there was absolutely no reason why the plaintiff could
not have been released from custody in the interests
of justice much
earlier. By the same token she could have been warned to present
herself at Libode police station on Monday 20
October 2008 instead of
taking her away from  her family and her guests in circumstances
in which she was a host.  She
was not a suspect for the theft of
the sheep, she was not suspected in the shooting that took place
earlier that day.  Police
had no reason to believe that she
possibly owned the firearm that they found in the flat.
[45]
When all this ill treatment and the trampling of applicant’s
rights was taking place, ironically the Constitutional Court
had only
six months earlier, in March of 2008 handed down the judgment
of
Zealand v Minister of Justice and Constitutional Development
and Another
[2008] ZACC 3
;
2008 (4) SA 458
at 468 CC in which Langa CJ had this
to say:
“
The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of freedom arbitrarily

or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient for this case for the applicant
simply
to plead that he was unlawfully detained.  This he did.
The respondents then bore the burden to justify the deprivation
of
liberty, whatever form it may have taken.”
[46]
In addition to the humiliation the plaintiff suffered as a result of
the unnecessary public spectacle of her arrest at 63 years
of age in
circumstances in which there was a real possibility that it was
Sicelo or some other person who was the culprit she was
deprived of
her freedom for 16 days.  In the police holding cells at Libode
police station she was detained in a cell whose
toilet was in the
cell which meant that while she was sitting there in the cell with
other detainees one of them would be relieving
themselves.  She
was sleeping on the floor as there were no beds or matrasses in the
cells.  In her community and her
church she was labelled a
thief.  When asked if she had anything further to say she said
that “
I was severely traumatised and demoted in my church in
which I was a leader because I was regarded as a thief.”
There is no doubt that plaintiff, at her old age, suffered public
humiliation and degradation of her dignity as a human being
with
total disregard of her Constitutional rights by the police.
[47]
In the result the following order will issue:
(1)
Plaintiff’s claim in respect of unlawful search is dismissed.
(2)
Plaintiff’s claim for malicious prosecution is dismissed.
(3)  The
defendant is directed to pay to the plaintiff a sum of
R320 000.00
as and for damages in respect of unlawful arrest and detention.
(4)  The
defendant is directed to pay interest on the amount of
R320 000.00
to be calculated at the prescribed rate of interest from a date
fourteen days after the date of judgment to date of payment.
(5)
The defendant is directed to pay the plaintiff’s costs of suit
together with interest thereon, such interest to
be calculated at the
prescribed rate of interest from a date fourteen (14) days after
allocatur
to date of payment.
MS
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicants: M PANGWA
Instructed
by: CAPS PANGWA & ASSOCIATES
MTHATHA
Counsel
for the Respondent: J BEMBE
Instructed
by: MGWESHE NGQELENI INC
MTHATHA
Matter
heard on: 17 November 2017
Judgment
handed down on: 30 January 2018