Mahlangu and Another v Minister of Police (1393/2018) [2020] ZASCA 44; [2020] 2 All SA 656 (SCA); 2020 (2) SACR 136 (SCA) (21 April 2020)

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[2020] ZASCA 44
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Mahlangu and Another v Minister of Police (1393/2018) [2020] ZASCA 44; [2020] 2 All SA 656 (SCA); 2020 (2) SACR 136 (SCA) (21 April 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1393/2018
In
the matter between:
J
E
MAHLANGU

FIRST APPELLANT
I
T MAILELA
NO

SECOND APPELLANT
and
MINISTER
OF
POLICE

RESPONDENT
Neutral
citation:
Mahlangu
& Another v Minister of Police
(1393/2018)
[2020] ZASCA 44
(21 April 2020)
Coram:
PETSE DP, CACHALIA and VAN DER MERWE
JJA and KOEN and DOLAMO AJJA
Heard
:
18 November 2019
Delivered
:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 21 April 2020.
Summary:
Delict –
judicial detention – damages – inadmissible confession
induced by assault extracted by police from accused
– whether
police liable for the appellants’ incarceration subsequent to
first court appearance.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Kollapen J, Molopa-Sethosa and
Ranchod JJ concurring) sitting as a full court:
1 The appeal is upheld with costs, such costs to include
the costs consequent upon the employment of two counsel where
employed.
2 The order of the full court is set aside and
substituted with the following:
‘
(a) The appeal succeeds with
costs, including the costs of two counsel where employed;
(b) The order of the trial court is set aside and
replaced with the following:
“
The first defendant is ordered
to pay:
(i)
The amount of R190 000
to the first plaintiff;
(ii)
The amount of R150 000
to the second plaintiff;
(iii) Costs of suit, including the
costs of two counsel where employed.”’
JUDGMENT
Koen
AJA (Cachalia JA and Dolamo AJA concurring)
[1]
The issue in this appeal is whether the respondent, the Minister of
Police (the Minister), should be held liable for damages
to Mr
Johannes Eugen Mahlangu (Mr Mahlangu) and the second appellant, the
representative of the deceased estate of Mr Phanie Johannes
Mtsweni
(Mr Mtsweni),
[1]
for the period that Mr Mahlangu and Mr Mtsweni (the plaintiffs) were
detained pursuant to various court orders, from the time of
their
first appearance in court after their arrest, until the charges
against them were withdrawn and they were released.
No
relief
[2]
is sought in this appeal against Inspector Sikheto Emson Mthombeni
(Lieutenant Mthombeni),
[3]
who arrested the plaintiffs.
Background
[2]
The plaintiffs were arrested without a warrant on four counts of
murder by Lieutenant Mthombeni on Sunday 29 May 2005. Mr Mahlangu
was
arrested at around 10h00 and Mr Mtsweni around 16h30. They were
brought before a magistrate’s court, for their first
court
appearance, on the morning of 31 May 2005. Their rights to apply for
bail were explained and the magistrate recorded that
‘both wish
to apply for bail’. The magistrate recorded that the prosecutor
requested a remand for further investigation
and for the bail hearing
and that ‘the state intended opposing bail’. They were
accordingly remanded in custody until
14 June 2005.
[3]
Subsequent appearances before the magistrate’s court on
numerous remand dates
[4]
resulted in their further detention. A third accused, Mr Dumisani
Dingani Makhubela, and later two further accused, Mr Buti Johannes

van Rooyen and Mr Penuel Mkhonto, and an additional charge of rape,
were added. The plaintiffs remained in custody until 10 February

2006, when they were released after the Director of Public
Prosecutions had decided to withdraw the charges against them.
[5]
The proceedings before the trial court
[4]
Arising from their arrest, subsequent detention until their first
appearance in court (the police detention), an alleged assault
by the
police on Mr Mahlangu, and their detention in terms of various court
orders from the time of their first appearance in court
until their
release (the judicial detention), the plaintiffs claimed damages for
infringement of their ‘
dignitas,
fama
, bodily
integrity and their right to freedom.’ They each claimed R85
000 for loss of income and earning capacity and R2 700
000 in respect
of general damages.
[6]
The general damages were alleged to be in respect of ‘severe
emotional and psychological trauma,
contumelia
,
(and) the loss of enjoyment of life’.
[5]
Lieutenant Mthombeni testified that Mr Mahlangu told him, after his
arrest, that ‘he knows about the murder of these people’

and that ‘during the murder of these people, he was not alone,
but was with Mr Mtsweni’. That communication caused
him to
arrest Mr Mtsweni. Mr Mahlangu testified that he was assaulted by
Lieutenant Mthombeni and other unidentified policemen,
which, he
said, resulted in him doing a pointing out to Senior Superintendent
DS Mabunda at 16h20 on 29 May 2005,
[7]
and deposing to a confession before Captain Mokgopodi Justice
Mogayane (Captain Mogayane) the next morning. In this confession
he
admitted his role in the murders and also implicated Mr Mtsweni.
Lieutenant Mthombeni disputed the allegations of assault,
but
confirmed that after Captain Mogayane recorded the confession, he
took possession thereof. When the plaintiffs appeared in
court at
their first appearance, the prosecutor was given the entire docket
with all the statements, including the confession.
Lieutenant
Mthombeni confirmed that ‘[he] knew that the state prosecutor
or whoever was going to deal with this matter at
the Department of
Justice would rely on this statement for the continued detention of
[the plaintiffs]’. He was asked by
the court whether it was
correct that ‘apart from the [confession] that [Mr Mahlangu]
had made there was no other evidence
which incriminated him’,
to which he replied, ‘No, except a statement . . . that I had
at my disposal that (Mr Mahlangu)
had a relationship with the female
deceased and the possibility was that it was him’.
[6]
The action for the recovery of the non-patrimonial damages claimed by
the appellants for the infringement of the plaintiffs’

‘
dignitas,
fama
, bodily
integrity and (the) right to freedom’, is the
actio
injuriarum
.
[8]
In respect of an unlawful arrest, the
actio
iniuriarum
is
subject to special features, namely that liability for wrongful
arrest is strict. Neither fault nor awareness of the wrongfulness
of
the arrestor’s conduct is required.
[9]
The onus of proving that the deprivation of liberty was not wrongful
was on the police.
[10]
[7]
The trial court (Mabuse J) concluded that the information which
Lieutenant Mtombeni relied upon to justify the arrest of Mr
Mahlangu
‘was not of such a nature that he could . . . reasonably have
suspected that [he] had committed the offence.’
It also found
that Mr Mahlangu’s confession was ‘irregularly obtained
from him without him having been warned of his
rights . . . [and] . .
. because he had been tortured.’ In respect of Mr Mtsweni, the
trial court found that it was ‘common
cause that [he] was
arrested following the confession made by Mr Mahlangu to the police’
(more correctly, Mr Mtsweni was
arrested based on what Mr Mahlangu
told Lieutenant Mthombeni after his arrest). It observed that the
confession, and the extent
to which it implicated Mr Mtsweni, was
irrelevant in determining whether the arrests of Mr Mahlangu and Mr
Mtsweni were lawful,
as the confession only came into existence after
they had been arrested. The trial court thus held that the arrest and
police detention
of the plaintiffs were unlawful. Following on the
findings above it awarded damages
[11]
of R90 000 to Mr Mahlangu and R50 000 to Mr Mtsweni, and
directed the Minister to pay their legal costs on the magistrates’

court scale.
[8]
No damages were awarded in respect of the claims for alleged loss of
income and earning capacity,
[12]
nor in respect of the claim for non-patrimonial damages in respect of
the plaintiffs’ judicial detention. The trial court,
relying on
this court’s judgments in
Isaacs
v Minister van Wet en Orde
[13]
and
Minister of
Safety and Security v Sekhoto and Another
,
[14]
held that the plaintiffs’ unlawful detention came to an end
once they were detained in terms of a court order after their
first
appearance in court.
[9]
The trial court granted the appellants leave to appeal against ‘the
award of damages’ to the full court of the Gauteng
Division of
the High Court, Pretoria (the full court). The appellants did not
appeal against the disallowance of their claims for
loss of income
and earning capacity. There was also no cross appeal in respect of
the trial court’s award of damages, and
hence the findings that
the arrests of the plaintiffs and their police detention had been
unlawful, that Mr Mahlangu had been tortured,
and that the confession
was irregularly obtained.
[15]
The proceedings before the full court
[10]
The full court correctly construed the appeal as being not only
against the quantum of damages awarded for the unlawful arrests
and
the period of police detention, but also the merits, insofar as it
concerned the claims for damages for the period of the plaintiffs’

judicial detention. It pointed out that
Isaacs
was qualified in
Minister
of Safety and Security v Tyokwana
,
[16]
where this court clarified that:
‘
. . . what was not held in Isaacs, is that
an arrested person’s continued detention by virtue of an order
of court remanding
him or her in custody in terms of s 50(1) of the
CPA, will automatically render such continued detention lawful. This
was not an
issue that the court in Isaacs was called upon to
adjudicate . . . ‘
Tyokwana
recognised that the police could
instigate and perpetuate a malicious prosecution that ultimately
results in the deprivation of
freedom of an individual.
[11] Dealing with the facts of the matter, the full
court continued:
‘
The view of … the appellants, was
that the unlawfully obtained confession would have had a strong and
overwhelming influence
on how the prosecutor would have viewed the
case before him/her as well as ultimately the Court. While there may
well be some merit
in that contention, it ignores the notion that the
prosecutor is to bring to bear his/her own mind to the matter, to
interrogate
the docket in its entirety, and to bring out a view with
regard to the further prosecution, and by implication, detention, of
the
appellants.
On the evidence before the Court
a quo
there is simply no way
of knowing if that happened and if it did not, whether the locus of
legal liability may well rest with the
prosecution. The case advanced
by the appellants was not for malicious prosecution, and the absence
of any evidence on this aspect
cannot be the fault of the
respondents. Simply put, that was not the case on the pleadings they
were required to meet. If indeed
it was the case for the appellants
that the police failed in their duty to properly inform the
prosecutor of the correct state
of affairs, including the arrest of
other suspects, then they were obliged to plead that, and to lead the
necessary evidence in
support of that.
That it was not done cannot now mean that the police continue to
attract liability for all the results that follow from the extraction

of an unlawful confession and its presentation in the docket. Odious
and offensive as that conduct may be, its further role in
the
prosecution process cannot simply be the product of conjecture and
speculation.
It can hardly be unreasonable to assume that a prosecutor viewing the
docket in its entirety may have reached the conclusion that
despite
the confession, the case against the first appellant was not
sustainable or even if it was, that his release on bail may
well have
been considered if a bail application was launched . . . .
Thus what emerged is a significant gap in the case
for the appellants in seeking to hold the respondents liable for
their judicial
detention. That gap relates in its entirety to the
proceedings before the Court on the 30th May 2005 and thereafter
until the release
of the appellants and includes the decisions taken
for their further detention, the basis for such decisions, the
absence of a
bail application and the reasons therefore. Under those
circumstances the existence of the unlawfully obtained confession
cannot
be dispositive of the matter. To do so would be to ignore the
important role of the prosecutor and the Court, both of whom have

constitutional and legal obligations with regard to the decisions
taken on the further detention of the appellants.’
[12] The full court confirmed the trial court’s
refusal to award the plaintiffs damages for the period of their
judicial detention
and dismissed the appeal with costs.  The
present appeal is against that decision, special leave having been
granted by this
Court.
The constitutional framework
[13]
The claims of the plaintiffs must be viewed against the provisions of
the Constitution, the common law and the provisions of
the Criminal
Procedure Act (CPA).
[17]
Section 12(1)
(a)
of the Constitution guarantees the right of security and freedom of
the person, which includes the right ‘not to be deprived
of
freedom arbitrarily and without just cause’. Section 35(1)
provides that anyone who is arrested for allegedly committing
an
offence has the right, amongst others:
‘
(d) to be brought before a court as soon as
reasonably possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours,
if the 48 hours expire outside ordinary court hours or on
a day which
is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged
or to be informed of the reason for the detention to continue,
or to
be released; and
(f) to be released from detention if the interests of justice permit,
subject to reasonable conditions.’
These
rights are echoed and somewhat elaborated on in s 50 of the CPA.
Section 60 of the CPA deals with the release of detained
persons on
bail. Section 35(2)(d) of the Constitution furthermore provides that,
‘Everyone who is detained … has the
right to challenge
the lawfulness of the detention in person before a court and, if the
detention is unlawful, to be released.’
[14]
Froneman J,
[18]
writing the second judgment in
De
Klerk v Minister of Police
,
[19]
in his dissent explained the effect of s 35 of the Constitution in
this context as follows:
‘
Subsections 35(1)
(d)-(f)
impose constitutional obligations on three different institutions of
government: the police services, the National Prosecuting
Authority
and the judiciary. The police carry the responsibility to ensure a
criminal suspect is brought before a court as required
by s 35
(1)
(d)
.
This is an administrative function to be exercised within the broader
executive authority of government. The decision to charge
a suspect
under s 35(1)
(e)
is one that falls under the authority and competence of the National
Prosecuting Authority, an independent institution under the

Constitution. The decision to release or detain a suspect falls
within the independent judicial authority or competence of the

judiciary.’
[15]
Mogoeng CJ, in the third judgment in
De
Klerk
, also a
dissent, stressed that:
[20]
‘
In this context, considerations of public
policy based on our constitutional norms and values demand a
commitment to the fulfilment
of constitutional obligations,
especially those that affect the liberties of individuals, the
respect for and observance of separation
of powers, and the need for
courts to make just and equitable orders.’
The
first judgment of Theron J
[21]
and the separate concurring judgment of Cameron J
[22]
did not take issue with these principles. This delineation of
constitutional responsibilities also accords with what was said by

Harms DP in
Sekhoto
,
[23]
who added that:
‘
The discretion of a court to order the
release or further detention of the suspect is subject to
wide-ranging, and in some cases
stringent, statutory directions.
Indeed, in some cases the suspect must be detained pending his trial,
in the absence of special
circumstances. I need not elaborate for
present purposes, save to mention that the [CPA] requires a judicial
evaluation to determine
whether it is in the interests of justice to
grant bail; that in some instances a special onus rests on a suspect
before bail may
be granted; and the accused has in any event a duty
to disclose certain facts, including prior convictions, to the court.
...
While the purpose of arrest is to bring the
suspect to trial, the arrestor has a limited role in that process. He
or she is not
called upon to determine whether the suspect ought to
be detained pending a trial. That is the role of the court (or in
some cases
a senior officer). The purpose of the arrest is no more
than to bring the suspect before the court (or the senior officer) so
as
to enable that role to be performed.’
[24]
[16]
The roles performed by the prosecuting authority and the court in the
further detention of a detained person at the first and
subsequent
court appearances, are significant. As regards the prosecutorial
decision
[25]
it was held in
Minister
of Police and Another v Du Plessis
that:
[26]
‘
Once an arrestee is brought before a court,
in terms of s 50 of the Criminal Procedure Act 51 of 1977 (CPA), the
police’s
authority to detain, inherent in the power of arrest,
is exhausted.  . . . . As pointed out . . . in the court below,
before
the court makes a decision on the continued detention of an
arrested person comes the decision of the prosecutor to charge such
a
person. A prosecutor has a duty not to act arbitrarily. A prosecutor
must act with objectivity and must protect the public interest.’
[17]
Court orders providing for judicial detention are constitutionally
significant. As a general principle, all court orders (other
than
some which concern constitutional invalidity) have force from the
moment that they are issued, and are binding until set aside

(irrespective of whether or not the orders concerned are valid,
[27]
and whether correctly or incorrectly granted),
[28]
or otherwise impugned at the instance of the person who alleges that
it should be impugned,
[29]
where it might not be required to actually set the order aside.
[30]
An invalid order is not a nullity.
[31]
Even in the absence of a contested bail application, every court
order, including the initial order for detention, should be a

deliberative judicial act and must consider the rights of the
arrested person and weigh those in the scales of justice against
the
interest of the public to have persons reasonably suspected of being
perpetrators of crime detained, where appropriate, pending
their
prosecution. A court order which simply directs the detention of an
accused person without giving due consideration to these

constitutional imperatives, as occurred in the notorious ‘reception
courts’ and
De
Klerk
, is liable to
be impugned. Where an order for detention is impugned successfully,
it is desirable that such order should be set
aside rather than be
allowed to remain in existence with an uncertain status.
[32]
The liability of the police for detention ordered by
a court
[18]
Although the lawfulness or otherwise of a court order for an arrested
person’s judicial detention depends primarily on
the conduct of
the prosecutor and/or the magistrate, the police can incur liability
for damages for detained persons being denied
their freedom after
their appearance before a court, notwithstanding the court having
ordered such detention. This occurred in,
amongst others,
De
Klerk
and
Woji
v Minister of Police
.
[33]
It is necessary to discern the applicable principles which resulted
in liability in these decisions. Two possible situations arise.
It is
important to distinguish between these situations as the incidence of
the burden of proof, which could be decisive, is different
in each.
[19]
In
De Klerk
,
Mr de Klerk was, within hours of his arrest for assault on 20
December 2012, taken to court for his first appearance. This court

was in the nature of a ‘reception court’ which,
notwithstanding the comments in
Minister
of Safety and Security and Another v Ndlovu
,
[34]
on the facts of
De
Klerk
still
existed.
[35]
Mr de Klerk was not afforded the opportunity to apply for bail. No
consideration was given by the prosecutor or the magistrate
as to
whether he should be released on bail, or otherwise. He was simply
informed by the magistrate that he would be remanded in
custody, and
an order to that effect was granted as a matter of routine. Mr de
Klerk was released on 28 December 2012, before
his second
appearance in court and before any bail application could have been
pursued,
[36]
after the complainant withdrew the charges against him.
[20]
The judgments of Theron J and Cameron J considered the issue to be
decided as one of causation;
[37]
that is whether the arresting officer at the time of unlawfully
arresting Mr De Klerk foresaw his continued detention by the court
at
his first appearance. Theron J held:
[38]
‘
In my view, on the case as brought before
us, there is one potential delict, namely, the unlawful arrest of the
applicant. . . .
. In this case there was prior wrongful, negligent
conduct by the arresting officer that factually caused the applicant
to suffer
harm. It is that conduct, the wrongful arrest of the
applicant, which we are called to adjudicate. . . . The applicant has
not
argued, as the second judgement persuasively finds, that an
omission by the arresting officer to prevent his further detention
after the first appearance is wrongful
[39]
. . . Constable Ndala subjectively foresaw the precise consequence of
her unlawful arrest of the applicant. She knew that the applicant’s

further detention after his court appearance would ensue. She
reconciled herself to that consequence. What happened in the
reception
court was not, to Constable Ndala’s knowledge, an
unexpected, unconnected and extraneous causative factor – it
was
the consequence foreseen by her, and one which she reconciled
herself to. In determining causation, we are entitled to take into

account the circumstances known to Constable Ndala. These
circumstances imply that it would be reasonable, fair and just to
hold
the respondent liable for the harm suffered by the applicant
that was factually caused by his wrongful arrest. For these reasons,

and in the circumstances of this matter, the court appearance and the
remand order issued by the magistrate do not amount to a
fresh
causative event breaking the causal chain.’
[40]
[21] Theron J concluded that:
‘
The crucial fact in this matter is that
Constable Ndala subjectively foresaw the harm arising from the
mechanical remand of the
applicant after his first court appearance.
She knew that the applicant’s further detention after his court
appearance
would be the consequence of
her unlawful arrest
of him.
[41]
She reconciled herself with this knowledge in proceeding to arrest
him. In addition, she knew that her mere note inside the docket

recommending bail would amount to nothing at this first appearance.
That the judicial process
should
have had a different tenor and outcome seems to me to be beside the
point. The point is that Constable Ndala knew it would not
[42]
.
. .On the facts of this case, the magistrate concerned should not be
exclusively liable for the subsequent detention,
given
the original delict by the arresting officer and her subjective
foresight of the subsequent detention, and the harm associated

therewith
.’
[43]
Cameron
J agreed with the judgment of Theron J ‘that on
the
very particular facts
of Mr De Klerk’s case’ he should succeed with his claim
‘to hold the police liable for [the] whole of his detention,

pre- and post-court appearance’, as ‘[t]he particular
facts linked his post-appearance detention sufficiently to
the
initial unlawful arrest
.’
[44]
Unlawful conduct following an arrest – a
separate delict.
[22]
In another instance, the police might be guilty of some wrongful
conduct independent of the arrest, intended to influence the

prosecutorial decision to request and/or the court’s discretion
to direct the further detention of the arrested person, where,
but
for such unlawful conduct by the police, the further detention would
not have been ordered by the court. In that instance the
police would
foresee, as inevitable, at the time of such wrongful conduct, that
the detained person would be deprived of his/her
liberty at the first
appearance before a court, until the validity of such detention could
be reviewed. Every case will depend
on its own facts.
[45]
In
De Klerk
Theron J said,
[46]
that ‘[the] conduct of the police after an unlawful arrest,
especially if the
police acted unlawfully after the unlawful arrest
of the plaintiff, is to be evaluated and considered in determining
legal causation. . .there is no general rule that can be applied

dogmatically in order to determine liability.’
[23]
Where the police acted unlawfully ‘after’ the unlawful
arrest,
[47]
any harm resulting from having ‘acted unlawfully’ is not
caused by the unlawful arrest, but is caused by that unlawful

conduct, just as unlawful conduct by the police after a lawful arrest
would constitute a separate delict. Whether harm was caused
by that
unlawful conduct must be assessed with reference to that unlawful
conduct, as distinct from the arrest, whether lawful
or unlawful,
which preceded it. Whether that separate unlawful conduct affords a
remedy in law must be established in regard to
that delict. If
non-patrimonial damages are sought to be recovered in respect of such
unlawful act under the
actio
iniuriarum
, the
special features pertaining to an unlawful arrest will not apply. The
onus, in accordance with general principle, would be
on the plaintiff
to prove all the requirements of the
actio
iniuriarum
,
including fault in the form of
animus
iniuriandi
. Malice
is not required, only legal intent, even in the form of
dolus
eventualis
,
[48]
to injure – even in the case of malicious prosecution
[49]
or malicious detention.
[50]
[24]
In
Woji v Minister
of Police
[51]
Mr Woji was lawfully arrested on a charge of robbery. He was remanded
in custody at his first appearance before court. At the bail
hearing
conducted shortly thereafter, the investigating officer untruthfully
testified that Mr Woji was clearly identifiable on
a video of the
robbery for which Mr Woji was being detained, which he had viewed.
This evidence caused the court to refuse bail.
Mr Woji was detained
until the prosecutor viewed the footage and saw that Mr Woji could
not be identified as one of the robbers,
at which point he withdrew
the charge. In an action for damages for wrongful detention it was
held that the investigating officer
foresaw the possibility that his
untruthful evidence would lead to the refusal of Mr Woji’s
application for bail; differently
stated, on the facts and evidence
the investigating officer subjectively foresaw that his evidence
would lead to the refusal of
bail and he proceeded recklessly to
assert that it was Mr Woji on the video footage. This was in breach
of the duty imposed by
the Constitution on the State and all of its
organs not to perform any act that infringes an entrenched right,
such as the rights
to human dignity and freedom and security of the
person. The fact that the investigating officer had made a false
statement which
influenced the order, was raised pertinently on the
pleadings
[52]
and canvassed fully in the evidence.
[25] Thus, if pleaded properly, the police will incur
liability for wrongful conduct subsequent to an arrest, whether
lawful or
unlawful, which caused a detained person to be deprived
further of his liberty after the first court appearance, until that
unlawfulness
could be corrected. It is necessary then to turn to
consider the pleadings in this appeal.
The pleaded case
[26]
The pleadings are of paramount importance in every civil dispute.
They identify the legal and factual issues in dispute that
have to be
decided, determine what evidence is relevant, and determine which
party bears the onus of proof proper, any evidentiary
onus and the
duty to begin. In
Molusi
and Others v Voges NO and Others
[53]
it was said that:
‘
The purpose of pleadings is to define the
issues for the other party and the court.  And it is for the
court to adjudicate
upon the disputes and those disputes alone. Of
course there are instances where the court may of its own accord
(mero motu) raise
a question of law that emerges fully from the
evidence and is necessary for the decision of the case as long as its
consideration
on appeal involves no unfairness to the other party
against whom it is directed.  In
Slabbert
[54]
the Supreme Court of Appeal held:
“
A party has a duty to allege in the
pleadings the material facts upon which it relies.  It is
impermissible for a plaintiff
to plead a particular case and seek to
establish a different case at the trial.  It is equally not
permissible for the trial
court to have recourse to issues falling
outside the pleadings when deciding a case.”’
[27]
The pleadings in this matter were anything but a model of clarity.
Indeed, the amended particulars on which the trial commenced,
and
filed in the record, possibly made out no cause of action. It seems
that little attention was paid to the formulation of the
plaintiffs’
claims by the litigants. The particulars remained in that deficient
form for the whole of the appellants’
case. It was only during
the evidence of Captain Mogajane that the amended particulars of
claim were amended further, allegedly
to accord with the evidence.
These informal amendments were apparently reflected in amended
replacement pages that were handed
up to the trial judge. The
replacement pages were however not incorporated in the record before
this court. This dereliction of
responsibility caused unnecessary
repeated reflection by this court on the merits of the appeal.
[28] The material allegations in the particulars of
claim, as finally amended, read as follows:
‘
7.1 On or about the 29th of May 2005, in
Extension 4, Mhluzi, Middelburg, Mpumalanga, the Second Defendant,
without a proper warrant,
wrongfully and unlawfully arrested the
First Plaintiff and Second Plaintiff;
7.2 Resulting from the aforesaid arrest
and the subsequent conduct
of the Second Defendant and other police officers as mentioned below
,
the First and Second Plaintiffs were incarcerated for a period of 9
[nine] months in Police custody and the charges were subsequently

withdrawn against the First and Second Plaintiffs during February
2006;
7.3 Subsequent to the arrest of the First and Second Plaintiffs, and
with the help of other Police Officers, whose names and further

particulars are unknown to the Plaintiffs, the Second Defendant
assaulted the First and Second Plaintiffs continuously when they
were
handcuffed and faces covered, using clinched fists and open hands
all
of which caused the First Plaintiff to make a statement incriminating
himself and the Second Plaintiff
.
8 As a result of the aforesaid unlawful arrest, detention and
assault, the First and Second Plaintiffs suffered damages due to
the
fact that their
dignitas, fama,
bodily integrity and their
right to freedom was infringed.’
The words in bold reflect the amendments effected
informally during the trial.
The
Minister denied liability for the for the appellants’ detention
by pleading that, ‘[s]ince or about 31 May 2005
until the date
of their release, the plaintiffs were detained by virtue of an order
of Court.’
[55]
No replication was filed.
[29]
The pleadings did not receive any detailed examination by the trial
court. It simply observed that, ‘[the] battlefield
between the
parties, is whether the arrest of the plaintiffs was lawful. The
second one was whether the further detention of the
plaintiffs, after
they had appeared in court, could be attributed to the defendant.’
The full court also did not analyse
the pleadings but commented that
‘… in considering the factual matrix in this matter,
regard must of necessity be
had to the role of the prosecutor and
that of the court in the period from [31] May 2005 until 10 February
2006’.
[30]
The allegations in paragraph 7.3 of the particulars referred to the
assault (which the trial court found to be established)
and that the
assault caused Mr Mahlangu to make the confession (which the trial
court found as a fact) in which he incriminated
himself and Mr
Mtsweni. The allegations in paragraph 7.2 of the particulars of claim
were however unsatisfactory. The plaintiffs’
judicial detention
was not caused by their unlawful arrest. Nor were they incarcerated
because they were assaulted resulting in
Mr Mahlangu making the
incriminating confession. The causative connection between the
confession and the judicial detention of
the plaintiffs was not
pleaded. Allegations should have been included along the lines that,
as a result of Lieutenant Mthombeni
submitting the improperly
obtained and hence inadmissible confession to the prosecutor at the
first hearing, with the intention
that it be relied upon as
admissible, he intended that it would be relied upon to cause the
plaintiffs to not be considered for
release from custody, and that
any request by the plaintiffs to be released on bail would
inevitably, as a matter of practical
reality, require an adjournment
for a bail hearing to be held, with the plaintiffs remaining in
custody in the interim.
[31]
The full court found that what caused the magistrate’s court to
order the detention of the plaintiffs at the first hearing
was not
dealt with in the evidence. After much reflection as to whether that
omission in the pleadings was fatal, having reflected
on the evidence
of Lieutenant Mtombeni referred to in para 5 above, and considering
that the Minister and Lieutenant Mtombeni defended
the claim for
damages for the period of judicial detention seemingly fully aware
that the omitted allegation expressed the basis
of the appellants’
claims,
[56]
I conclude that the issues in the pleadings were widened by the
evidence
[57]
and that the omission in the pleadings referred to above, was cured.
The Minister has not complained of any prejudice in this regard.
The
plaintiffs would attract the onus of proving that such conduct on the
part of Lieutenant Mthombeni occurred with
animus
iniuriandi
. Such
animus iniuriandi
could however be implied from other allegations and need not be
pleaded expressly.
[58]
Discussion
[32]
There was no evidence that the court in which the plaintiffs appeared
on 31 May 2005 was a reception-type court and that Lieutenant

Mthombeni, at the time of their arrest, foresaw their detention
beyond their first appearance. Nor was the confession made by Mr

Mahlangu a day after his arrest foreseen at that stage. This was also
not a case where alternative methods to arrest were available
to the
arresting officer, as were available to the arresting officer in
De
Klerk
.
[59]
The wrongful arrests were not the legal cause of any part of the
appellants’ judicial detention.
[33]
The issue to consider then is whether the inclusion of the
inadmissible confession in the docket at the first appearance
factually
and legally caused the plaintiffs to be detained
thereafter. The full court concluded that one does not know exactly
what evidence
and documents were before the court when the plaintiffs
appeared before the magistrate’s court for the first time. The
relevant
evidence was, with respect, overlooked because the matter
had not been pleaded properly and hence there was no focus on what
would
be relevant.
[34]
On the pleadings, as now taken to have been widened, and the evidence
of Lieutenant Mtombeni that the confession had been placed
before the
prosecutor as part of the docket, it is reasonable to conclude that,
on probability, the confession would have been
the material
consideration which caused the continued detention of the plaintiffs
at their first appearance. Believing that the
confession was an
admissible confession, the prosecutor would have been justified to
request a remand with Mr Mahlangu being detained
further. Similar
considerations would apply to Mr Mtsweni’s detention. The only
evidence implicating him was probably the
confession of Mr Mahlangu.
It was argued that such evidence would be inadmissible against Mr
Mtsweni
[60]
as a co-accused. However, Mr Mahlangu’s status as a co-accused
could be terminated in the discretion of the prosecution should
it
decide not to indict Mr Mahlangu and Mr Mtsweni together.
Alternatively, it would also be reasonably probable for the
prosecution
to accept that Mr Mahlangu, consistent with his
confession, would plead guilty and be convicted and would then become
a competent
and compellable witness to give such evidence
[61]
against Mr Mtsweni. Although these possibilities were not explored in
evidence, they would, in all probability, have justifiably
caused the
further detention of Mr Mtsweni at the first appearance.
[35]
Accepting that the confession, on probability, factually caused the
order for the further detention of the plaintiffs until
14 June 2005
being granted, the next question is whether the confession was the
factual cause for the subsequent orders which resulted
in the
plaintiffs’ judicial detention. It is not clear what transpired
at the subsequent hearings from 14 June 2005. The
Minister was
entitled to invoke the subsequent successive court orders as a
defence to the plaintiffs’ claims that their
further detention
was unlawful. These court orders were all prima facie valid. Cameron
J in
De Klerk
cautioned,
[62]
that:
‘
The test of factual causation should be
flexibly applied and was here plainly established.
By
contrast, where a court has given judicial consideration to whether
to remand the arrestee,
[63]
the police, as instigators of the detention, would not be liable. In
that case, malice as understood under the actio iniuriarum
would be
required to establish liability
.’
[36]
The onus was on the plaintiffs to prove that these subsequent orders
somehow stood to be impugned, and/or that the confession
remained the
decisive consideration which dictated their continued detention from
the second appearance. The evidence in that respect
was superficial.
The evidence of Lieutenant Mthombeni, referred to in para 5 above,
appears to be restricted to when the plaintiffs
‘now appeared
as accused in court’, that is at ‘the first and second
appearance.’ Lieutenant Mthombeni
was not cross examined
specifically on what informed the court orders at the numerous
subsequent court appearances. This aspect
should not be left to
speculation, or inferences on probabilities. In any event, there can
be no inference drawn unless there are
objective facts from which to
infer other facts sought to be relied upon.
[64]
What this apparent lacuna does illustrate, is the importance of
proper pleadings in the first place. It was not for the Minister
to
negative every conceivable ground on which a court order could be
impugned, without the plaintiffs having replicated any factual
basis
to do so. In the light of the view I have taken of the matter, it is
not necessary to address this question further.
[37]
Assuming in favour of the plaintiffs that the factual cause of the
plaintiffs’ detention for the remainder of their entire

judicial detention after 14 June 2005 was the inadmissible
confession, the decisive enquiry in this appeal is whether the
plaintiffs
proved legal causation, and whether the Minister should be
held liable for the full period of their judicial detention. That
enquiry
raises the issue whether the plaintiffs could and should have
applied to be released on bail during the period of judicial
detention,
and what limits of liability the legal convictions of the
community and legal policy determine.
[38]
Legal liability in delict is limited in accordance with the flexible
test for legal causation. Recently, in
Nohour
and Another v Minister of Justice and Constitutional Development
,
[65]
this court again dealt with the requirement of legal causation,
stating inter alia that:
‘
In order to prevent the “chilling
effect” that delictual liability in such cases may have . . .
such proportionality
exercise must be duly carried out and the
requirements of foreseeability and the proximity of harm to the
action or omission complained
of, should be judicially evaluated.
.Legal causation entails an enquiry into whether the alleged wrongful
act . . . is sufficiently
closely linked to the harm for legal
liability to ensue. . . .
Legal
causation is resolved with reference to public policy
.
. . . The result is that even if conduct is found to have been
wrongful (or even negligent, for that matter), a court may still

find,
for other reasons of public
policy
, the harm flowing therefrom to
have been too remote for the imposition of delictual liability. The
traditional tests for determining
legal causation (reasonable
foreseeability, adequate causation, proximity of the harm etc) remain
relevant as subsidiary determinants.
These traditional tests should
be applied in a flexible manner.
They
should be tested against considerations of public policy as infused
with constitutional values
. Insofar as
legal causation is concerned, every matter must be determined on its
own facts.’
[39]
An important consideration in this regard, is that in accordance with
the constitutional order applicable to detained persons
and their
constitutional rights, the plaintiffs could have applied to be
released on bail. The issue of legal causation did not
arise in
De
Klerk
as Mr de
Klerk was released before his next court appearance and before any
bail application could have been conducted. Similarly,
in
Woji
the period of detention caused by the investigating officer’s
untruthful evidence was restricted to the period from when
bail was
refused until when Mr Woji was released. On probability, had the
plaintiffs in this matter applied for bail, the magistrate
hearing
the bail application, just like the judge in the trial court, would
have had no difficulty in concluding that the confession
was
inadmissible, which, if that was the reason for their continued
detention (as I have assumed above in favour of the plaintiffs),

would mean that the State would have no case against the plaintiffs
and they would have been released, whether on bail, or otherwise;

that is, if the charges were not withdrawn.
[40]
The plaintiffs’ rights to be released on bail were fully
explained to them at their first court appearance, and according
to
Mr Mahlangu they indicated that they wished to apply for bail. The
matter was adjourned to 14 June 2005 for that purpose. Mr
Mahlangu
testified that he applied for bail at the ‘second hearing;’
he was simply not sure of the date. It does not
seem that the
plaintiffs applied for bail. Mr Maklangu’s evidence as to why a
bail application was not pursued, is confusing.
He testified that he
did not ‘get along’ with his legal representative and
that another representative was appointed,
but made no attempt to
explain why that would impact on the plaintiffs applying for bail.
What is clear, however, is that neither
Mr Mahlangu nor Mr Mtsweni
was ever prevented from applying to be released on bail.
[41]
Public policy considerations, determined with reference to
constitutional values
[66]
and the constitutional order referred to above, limit liability for
the continued judicial detention to the stage where it could

reasonably be expected of the plaintiffs to have pursued a bail
application to finality. In the present matter, there was no
indication
that a bail hearing could not have been held and pursued
to finality on 14 June 2005. The onus was on the plaintiffs to prove
why
they did not pursue a bail application.  A bail hearing was,
on the probabilities, unlikely to have taken more than one day.
Mr
Mahlangu would have testified of the assault upon him, Mr Mtsweni
would have denied all involvement in the matter, consistent
with his
previous statement of 30 May 2005, Lieutenant Mthombeni would have
testified (like Mr Mahlangu and Lieutenant Mthombeni
testified before
the trial court) and the magistrate, would, on the probabilities,
have had no difficulty in concluding that the
confession was
inadmissible, accordingly that no case remained against Mr Mahlangu
and Mr Mtsweni, and that the interest of justice
required their
release.
[42] In summary then:
(a) It is common cause that
Lieutenant Mthombeni and other unidentified policemen, tortured
[67]
Mr Mahlangu after his arrest, as a result of which he made the
confession in which he implicated himself and Mr Mtsweni;
(b) The confession would not be admissible in evidence;
(c) The confession was included in the police docket at
the time of the plaintiffs’ first appearance in court on 31 May
2005;
(d) The inclusion of the confession in the docket with
the intention that it be relied upon, was the factual cause of the
plaintiffs’
further detention from their first appearance until
they again appeared in court on 14 June 2005;
(e) Even assuming that the inclusion
of the inadmissible confession in the docket was thereafter also the
factual cause of the plaintiffs’
judicial detention, it was not
the legal cause of their detention beyond 14 June 2005, on which date
the plaintiffs could on probability
have applied for bail, and would
have been released – that is, after a period of some two weeks’
judicial detention.
[43] An appropriate award of damages for the period of
two weeks’ detention would be R100 000. This amount will be in
addition
to the amounts awarded by the trial court in respect of the
damages suffered preceding their judicial detention.
Costs
[44] Although the plaintiffs have not been successful to
the full extent claimed by them, they have enjoyed substantial
success.
There is no reason why they should not be awarded the costs
of the appeal, the costs of the proceedings before the full court,
and the costs before the trial court. Both sides employed two
counsel. Having regard to the novelty and complexity of the matter,

the employment of two counsel appears reasonable and appropriate and
the costs occasioned thereby should be allowed.
Order
[45] In the result the following order is made:
1 The appeal is upheld with costs, such costs to include
the costs consequent upon the employment of two counsel where
employed.
2 The order of the full court is set aside and
substituted with the following:
‘
(a) The appeal succeeds with
costs, including the costs of two counsel where employed;
(b) The order of the trial court is set aside and
replaced with the following:
“
The first defendant is ordered
to pay:
(i)
The amount of R190 000
to the first plaintiff;
(ii)
The amount of R150 000
to the second plaintiff;
(iii)
Costs of suit,
including the costs of two counsel where employed.”’
____________________
P A KOEN
ACTING JUDGE OF APPEAL
Van der Merwe JA (dissenting)
[46]
I have had the benefit of reading the judgment of Koen AJA. However,
I find myself in respectful disagreement with its reasoning
and
conclusion, hence this judgment.
[47]
The first appellant is Mr Johannes Eugen Mahlangu. The second
appellant is Ms I T Mailela, in her representative capacity as
the
duly appointed executrix of the deceased estate of Mr Phannie
Johannes Mtsweni. Mr Mtsweni passed away after he and Mr Mahlangu
had
instituted action against the respondent, the Minister of Police, as
well as his employee, Detective Inspector Emson Mthombeni,
for
damages arising from unlawful arrest and detention.
[48]
The matter proceeded to trial before Mabuse J in the Gauteng Division
of the High Court, Pretoria. That court held that the
respondent was
liable for the unlawful arrest of Mr Mahlangu and Mr Mtsweni as well
as for their detention up to their first appearance
in court, but not
for their subsequent detention. The appellants unsuccessfully
appealed to the Full Court (Molopa-Sethosa, Ranchod
and Kollapen JJ)
against the dismissal of their claims in respect of post-appearance
detention. The appeal is before us with the
special leave of this
Court. Only the respondent opposes the appeal. The issues in the
appeal are whether the respondent is liable
for damages arising from
the detention of Mr Mahlangu and Mr Mtsweni during the period from
their first appearance in court on
31 May 2005 to their release on 10
February 2006 and, if so, the quantum of damages to be awarded.
[49]
Mr Vusi Motebu, his partner, Ms Thuli Mathebula and three children
respectively approximately eight, six and three years old,
resided at
12359, Extension 7, Mhluzi, Middelburg, Mpumalanga. From Monday 23
May 2005 onwards no-one responded when relatives
and friends visited
the home of this family. It was noticed that the children had not
attended school and that the house was dark
at night. Eventually, on
27 May 2005, a visitor heard the youngest child crying inside the
house. This led to the gruesome discovery
that Mr Motebu, Ms
Mathebula and the two elder children had been murdered. Mr Motebu and
Ms Mathebula were both hanged from rafters
and suffered stab wounds.
One of the children was strangled with a wire around her neck and the
other appeared to have been suffocated
but also had a stab wound in
the neck. It appeared that one of the girls may have been raped. The
house was ransacked and several
items were missing. A case of murder,
rape and robbery was opened.
[50]
Detective Inspector Emson Mthombeni was appointed as the
investigating officer in the case. On 27 and 28 May 2005 he took
statements from various persons. These were the persons that had
fruitlessly visited the house of the deceased persons and that
had
subsequently discovered these crimes, as well as one of the police
officers who first attended the scene of the crimes. These
witnesses
did not in any way implicate anyone in the crimes.
[51]
Between eight and nine o’ clock on Sunday morning 29 May 2005,
Mr Mthombeni and three of his colleagues went to the house
of Mr
Mahlangu. Mr Mahlangu was at home with his partner and their baby.
Despite the fact that he had no grounds whatsoever for
suspecting
that Mr Mahlangu had been involved in the commission of the crimes
that he investigated, Mr Mthombeni arrested him without
a warrant.
[52]
Mr Mthombeni and his colleagues took Mr Mahlangu to their offices.
They placed his legs in irons and handcuffed his hands behind
his
back. In order to force Mr Mahlangu to admit that he had committed
the crimes, they repeatedly suffocated him by placing a
rubber tube
or a plastic bag over his head. This lasted for a couple of hours. Mr
Mahlangu ultimately succumbed and confessed to
what he had not done.
When asked how he killed the deceased persons, he initially said that
he had shot them with a firearm. This
was, of course, not correct and
under further duress he said, by pure guesswork, that the deceased
persons had been stabbed to
death. The police officers insisted that
he could not have committed the crimes on his own. Mr Mahlangu was
thus forced to identify
Mr Mtsweni, who was merely an acquaintance of
his that resided in the same street, as his supposed co-perpetrator.
[53]
As the result of the aforegoing, Mr Mahlangu made a written statement
to a justice of the peace (a police captain) on 30 May
2005, in which
he declared in some detail that he and Mr Mtsweni had committed the
crimes. On the same day, Mr Mtsweni was arrested
without a warrant.
Both Mr Mahlangu and Mr Mtsweni were detained until they appeared in
the Middelburg magistrates’ court
on 31 May 2005.
[54]
When they appeared in court, Mr Mahlangu and Mr Mtsweni did not have
legal representation. That is clear from the evidence
of Mr Mahlangu
and the record of the magistrate. The magistrate recorded that after
an explanation of their ‘bail hearing
rights’, the
accused indicated that they wished to apply for bail. The prosecutor,
however, requested that the matter be
remanded for further
investigation and a bail hearing, as the State intended to oppose
bail. Mr Mahlangu testified that he and
Mr Mtsweni were not afforded
the opportunity to address the court in relation to the request for
postponement and that they were
only told that ‘the matter was
being remanded’. There is no reason to doubt that this was how
it came about that the
matter was postponed to 14 June 2005 and that
Mr Mahlangu and Mr Mtsweni remained in custody.
[55]
The matter was subsequently remanded on several occasions. Mr
Mahlangu and Mr Mtsweni remained in custody. It appears that
at some
stage an attorney represented both Mr Mahlangu and Mr Mtsweni. Mr
Mahlangu testified that he and the attorney did not see
eye to eye.
As a result, no application for bail for Mr Mahlangu was made. Mr
Mahlangu said that his understanding was that Mr
Mtsweni had applied
for bail but that bail was refused. The record does not confirm or
refute this.
[56]
In the meantime, the police arrested the real perpetrators of these
crimes. The fingerprints of two of the real culprits matched

fingerprints that had been lifted from the crime scene inside the
house of the deceased. The Director of Public Prosecutions decided
to
prosecute these persons and declined to prosecute Mr Mahlangu and Mr
Mtsweni. They were accordingly released on 10 February
2006. Both the
aforesaid perpetrators were subsequently convicted and sentenced to
life imprisonment.
[57] In their particulars of claim, the appellants
claimed non-patrimonial damages and patrimonial damages consisting of
loss of
income. However, no evidence that Mr Mahlangu or Mr Mtsweni
suffered any loss of income was adduced. What then remained were
their
claims for infringement of their personality rights under the
actio iniuriarum.
At issue therefore is whether the appellants
pleaded and proved that the unlawful conduct of Mr Mthombeni and his
colleagues was
the cause of the entire period of the post-appearance
detention of Mr Mahlangu and Mr Mtsweni.
[58]
The principles of our law in respect of causation were laid down in
judgments of this Court such as
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 34F-H and
S
v Mokgethi en Andere
1990
(1) SA 32
(A) at 39D-41H. See also
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700E-701E. In a delictual setting they provide that
a defendant will be held liable for the factual consequences of his
or her wrongful and culpable conduct, unless, having regard, inter
alia, to considerations of legal and public policy, a consequence
is
regarded as too remote from the conduct to justify liability.
[59]
After the appellants had closed their cases at the trial, they
applied for leave to amend their particulars of claim. There
was no
objection to the proposed amendment and it was duly allowed by the
trial court. Prior to the amendment the particulars of
claim
contained detailed allegations that the police had assaulted Mr
Mahlangu (and Mr Mtsweni). The purpose and effect of the
amendment
was to bring the pleadings in line with the evidence of Mr Mahlangu
that the assault on him caused him to make the statement

incriminating himself and Mr Mtsweni and to allege that that was also
the cause of their incarceration.
[60] The relevant paragraph of the amended particulars
of claim read as follows: (The portions introduced by the amendment
are italicised):
‘
7.1 On or about the 29
th
of May 2005, in Extension 4, Mhluzi, Middelburg, Mpumalanga, the
Second Defendant, without a proper warrant, wrongfully and unlawfully

arrested the First Plaintiff and Second Plaintiff;
7.2 Resulting from the aforesaid arrest,
and
the subsequent conduct of the Second Defendant and other police
officers as mentioned below,
the First
and Second Plaintiffs were incarcerated for a period of 9 [nine]
months in Police custody and the charges were subsequently
withdrawn
against the First and Second Plaintiffs during February 2006;
7.3 Subsequent to the arrest of the First and
Second Plaintiffs, and with the help of other Police Officers, whose
names and further
particulars are unknown to the Plaintiffs, the
Second Defendant assaulted the First and Second Plaintiffs
continuously when they
were handcuffed and faces covered, using
clienched fists and open hands
all of
which caused the First Plaintiff to make a statement incriminating
himself and the Second Plaintiff.
’
[61]
In my view the amended particulars of claim encapsulated the
following case: Mr Mthombeni unlawfully arrested Mr Mahlangu.

Subsequent to the arrest, Mr Mthombeni and other police officers
subjected Mr Mahlangu to a continuous assault and caused him to
make
a statement falsely incriminating himself and Mr Mtsweni. As a result
of the unlawful arrest of Mr Mahlangu and the subsequent
conduct of
the police (extraction of a false confession by assault)
,
both Mr Mahlangu
and Mr Mtsweni were incarcerated for a period of nine months.
Therefore the forcible extraction of the confession
was the cause of
the entire period of the incarceration of Mr Mahlangu and Mr Mtsweni.
[62]
That is how the parties addressed the matter before the Full Court.
As a result the Full Court considered whether the unlawfully
obtained
confession had influenced the decision of the prosecutor to oppose
bail, but held on the facts that that was not proved.
The respondent
supported this finding before us. I shall revert to this aspect after
reference to the applicable legal principles.
[63]
In the recent matter of
De
Klerk v Minister of Police
[2019]
ZACC 32
(
De Klerk
CC), the
Constitutional Court considered the liability of the respondent for
detention subsequent to a remand order. The facts of
the matter were
briefly that after his employer had lodged a complaint of assault
against him, Mr De Klerk was requested to report
to the Sandton
police station. Upon his arrival he was arrested without a warrant.
It was common cause that the arrest was unlawful.
He was then taken
to the Randburg magistrates’ court, where he appeared
approximately two hours after his arrest. The arresting
officer
recorded in the docket that she recommended that Mr De Klerk be
released on bail in the amount of R1 000. However,
Mr De Klerk
appeared in a ‘reception court’ where the magistrate
routinely postponed the matter without any consideration
of bail. The
arresting officer knew that this would happen and therefore
subjectively foresaw that despite her recommendation,
Mr De Klerk
would remain in detention after his first appearance in court.
[64] The Constitutional Court handed down four
judgments. Theron J (Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ
concurring) held
that the unlawful arrest was the cause of the
post-appearance detention of Mr De Klerk and that the respondent was
liable for damages
in respect thereof. Cameron J agreed but did so on
a different basis. He reasoned that in the light of the knowledge of
the police
of how the ‘reception court’ operated, the
respondent was liable for the post-appearance detention because the
police
failed to release Mr De Klerk on bail as they were empowered
to do. Froneman J (Goliath AJ and Mlantla J concurring) disagreed and

held that the respondent was not liable by reason thereof that the
conduct of the arresting officer had not been wrongful. Moegoeng
CJ
concurred with Froneman J and added, in essence, that the remand
order of the magistrate had been ‘an automatic
novus actus
interveniens
’, which absolved the respondent from liability
for subsequent detention. Thus, the Constitutional Court by majority
set aside
the majority judgment of this court in
De Klerk v
Minister of Police
[2018] ZASCA 45
;
2018 (2) SACR 28
(SCA), but
did so for reasons that did not carry a majority.
[65]
Seven of the ten members of the Constitutional Court decided the
matter on causation. Apart from this,
De
Klerk
CC offers no
assistance for the determination of the present matter. First, the
facts of that matter are entirely different from
those in the present
appeal. Second, as is apparent from what I have said,
De
Klerk
CC did not
lay down any binding principle of law in respect of the liability of
the police for detention subsequent to a remand
order.
[66]
It follows that
De
Klerk
CC did not
affect the unanimous judgment of this court in
Woji
v Minister of Police
2015 (1) SACR 409
(SCA);
[2015] 1 All SA 68
(SCA). Mr Woji was
arrested on suspicion that he had participated in an armed robbery of
a bank. When he appeared in court, Mr
Woji applied for bail, but it
was refused and he was remanded in custody. He remained in custody
for 13 months, until the charge
against him was withdrawn. Mr Woji
sued the respondent for damages for unlawful arrest as well as for
his detention after bail
had been refused.
[67]
This court found that the arresting officer (Inspector Kuhn) had an
objectively reasonable suspicion that Mr Woji was one of
the robbers
and that the respondent accordingly discharged the onus of justifying
his arrest. During the application for bail,
however, Inspector Kuhn
falsely testified that Mr Woji was clearly depicted on video footage
of the robbery. The magistrate relied
upon this evidence when
refusing bail. The subsequent discovery that the video footage did
not clearly depict Mr Woji led to the
withdrawal of the charge
against him.
[68] In respect of the claim for unlawful detention,
Swain JA held that the conduct of Inspector Kuhn had been wrongful
and negligent.
He dealt with causation in these terms:
‘
[32] The detention of Mr Woji, however,
resulted from the order granted by the magistrate. In order to
determine whether the conduct
of Inspector Kuhn was a
sine
qua non
and therefore the factual cause
of Mr Woji’s detention, it has to be determined ‘what the
relevant magistrate on the
probabilities would have done’ had
the application for bail not been opposed, or Inspector Kuhn had
revealed that Mr Woji
was not clearly depicted on the video. Because
the video was the only evidence ostensibly linking Mr Woji to the
crime, the magistrate
more probably than not would have released him
on bail. It is also clear that Inspector Kuhn’s wrongful
conduct was sufficiently
closely connected to the loss for liability
to follow, hence it also constituted the legal cause of that loss.
The court a quo
therefore erred in dismissing the appellant’s
claim for unlawful detention. The duration of his unlawful detention
was accordingly
from 12 December 2007 when bail was refused, until
his release on 13 January 2009, a period of 13 months.’
(References omitted.)
[69]
In
Woji
,
therefore, this Court held the respondent liable for post-appearance
detention where the wrongful and culpable conduct of the
police had
materially influenced the decision of the court to remand the person
in question in custody. It is immaterial whether
the unlawful police
influence is exerted directly or through the prosecutor. As I shall
show, the present matter cannot on principle
be distinguished from
Woji
.
[70] There can be no doubt that Mr Mahlangu and Mr
Mtsweni were remanded in custody because the prosecutor had opposed
bail for
them. How it came about that the prosecutor opposed bail,
was explained in the evidence of Mr Mthombeni. He said that the case
docket that he had presented to the prosecutor prior to the first
appearance of Mr Mahlangu and Mr Mtsweni in court, contained all
the
statements that he had obtained by that time. The entire docket was
placed before the trial court. We therefore know which
statements had
been obtained by that time. They were the statements that I referred
to in para 50 above, an equally innocuous statement
of a person who
said that he had previously sold a hi-fi to Mr Mahlangu and the
statement of Mr Mahlangu.
[71]
Mr Mthombeni knew that the prosecutor would rely on the statement of
Mr Mahlangu to justify the continued detention of both
Mr Mahlangu
and Mr Mtsweni. Mr Mthombeni further said that the decision to oppose
bail had been arrived at following a discussion
between him and the
prosecutor and having had regard to the docket, and in particular Mr
Mahlangu’s statement. Mr Mthombeni
and his compatriots
obviously obtained the statement to ensure the incarceration of Mr
Mahlangu. Mr Mthombeni said that he ‘knew’
that the
statement would result in a life sentence. This is the attitude that
he would have displayed during the discussion with
the prosecutor.
[72]
And, as I have said, the only content of the docket on which a
decision to oppose bail could have been based, was the statement
of
Mr Mahlangu. On the face of it, the statement constituted conclusive
evidence against Mr Mahlangu and reasonably justified the
detention
of Mr Mtsweni for further investigation of the case against him. It
is accordingly overwhelmingly probable that the decision
to oppose
bail was based on Mr Mahlangu’s unlawfully obtained and
inadmissible confession. For the same reasons Mr Mahlangu
would
probably not have been granted bail had he so applied, and bail for
Mr Mtsweni would have or had been refused.
[73]
But Mr Mthombeni knew full well that the statement had not been made
freely and voluntarily and had been obtained by torture
and coercion.
Had he revealed the truth, the prosecutor would have realised that
there was no ground whatsoever for the detention
of Mr Mahlangu and
Mr Mtsweni and they would probably not have been further detained.
The unlawfully obtained statement factually
caused the
post-appearance detention of Mr Mahlangu and Mr Mtsweni.
[74]
It was also the legal cause of their post-appearance detention. Mr
Mthombeni subjectively foresaw what was reasonably foreseeable,

namely that the statement would lead to the post-appearance
detention. The forcibly extracted confession can clearly not be
regarded
as too remote from the harm suffered by Mr Mahlangu and Mr
Mtsweni. In the final analysis gross police impropriety informed the

decision of the prosecutor and tainted the magistrate’s remand
orders. In these circumstances Constitutional values and public

policy require that the respondent be held liable for the
post-appearance detention.
[75]
For these reasons I hold that the respondent is liable to compensate
both Mr Mahlangu and Mr Mtsweni for the infringement of
their
personality rights by their detention for the period from 31 May 2005
to 10 February 2006. They were deprived of their Constitutional

rights to freedom for a period of eight months and ten days.
According to the evidence of Mr Mahlangu, the circumstances of their

detention were unpleasant, to say the least. In addition, each of
them were in effect placed in solitary confinement for a period
of
two months in order to protect them from attack by fellow detainees
who believed that they had killed their relatives. In my
view damages
in the amount of R400 000 should be awarded to each appellant in
addition to the amounts awarded by the trial
court in respect of
pre-hearing damages.
[76] In the result I would make the following order:
1 The appeal is upheld with costs, including the costs
of two counsel.
2 The order of the Full Court is set aside and replaced
with the following:
‘
(a) The appeal succeeds with
costs, including the costs of two counsel.
(b) The order of the trial court is set aside and
replaced with the following:
“
The first and second
defendants are jointly and severally ordered to pay:
(i)  The amount of R490 000 to the first
plaintiff;
(ii)  The amount of R450 000 to the second
plaintiff;
(iii)  The costs of suit.”’
________________________
C H G VAN DER MERWE
JUDGE OF APPEAL
Petse DP (concurring)
[77]
I have had the privilege of reading with interest the judgments of my
Colleagues van der Merwe JA and Koen AJA in this matter.
I
respectfully agree with the judgment of my Brother van der Merwe and
the order that he proposes. With equal respect, I do not
agree with
the judgment of my Brother Koen and the reasoning underpinning it.
[78]
On Sunday morning of 29 May 2005, and at his home situated in
Extention 4, Mhluzi township Middelburg in Mpumalanga, the first

appellant, Mr Johannes Eugen Mahlangu, was enjoying quiet time with
his uncle and ‘the mother of [his] one child’.
At that
stage little did he know what fate awaited him as the clock ticked
away. At approximately 10h00 he was arrested by Lieutenant
Mthombeni
in connection with the gruesome murder of four persons who lived in
the same street just a few houses away from his.
This was the
beginning of a horrific nightmare that endured for some eight months.
What happened next and for the duration of his
ordeal and that of Mr
Phannie Johannes Mtsweni, following the latter's arrest, has been
sufficiently traversed in the judgments
of my Brethren. I therefore
do not propose to recapitulate that factual narrative in this
judgment, save to the limited extent
that it may be necessary to do
so in order to promote a better understanding of this judgment.
[79]
I have to confess that after much anxious consideration it was not
easy to dispel some of the initial doubts that lingered
in my mind
soon after reading the first judgment of my Brother Koen. But I am
now happy to say that on mature reflection I am persuaded,
on
balance, that the appeal must succeed.
[80]
Although I have come to the same conclusion as my Colleague van der
Merwe JA and embrace the order formulated by him, I considered
it
necessary to write separately in order to underscore certain features
of this case that are of fundamental importance.
[81]
The logical point of departure, in my view, in matters such as this
case, is the Bill of Rights, which enshrines the right
of every
accused person not to be compelled to make any confession or
admission that could be used in evidence against him or her.
[68]
And to be released on bail or warning, while still awaiting trial,
subject to whatever conditions that a court might deem necessary
to
impose in the interests of justice.
[69]
[82]
The first judgment proceeds from the premise that court orders ‘are
prima facie valid and will legally justify what they
direct’.
And that a court order ‘prevails until the validity thereof is
challenged successfully at the instance of
the person who alleges
that it should be impugned’. True, it is so that in our law an
order of court remains valid and effective
until it has been set
aside or rescinded (see, for example,
Clipsal
Australia (Pty) Ltd and Others v Gap Distributors (Pty) Ltd and
Others
2010 (2) SA
289
(SCA) para 22). The rationale for this principle is rooted in
public policy considerations to provide for certainty and finality
in
litigation. The exception to the general rule is when a judgment or
order is a nullity, invalid or of no force and effect because
the
court that made the order lacked the requisite jurisdiction. In those
circumstances the order may be disregarded without a
pronouncement as
to its invalidity (see, for example,
Master
of the High Court Northern Gauteng High Court, Pretoria v Motala N.O.
and Others
[2011]
ZASCA 238
;
2012 (3) SA 325
(SCA) paras 12-14).
[83]
In the context of a court ordained detention of an accused person,
our courts have come to recognise that where the order authorising

detention or further detention is not a result of a deliberative
judicial process – as it happened in this case – such
an
order does not constitute a new intervening act capable of
terminating the unlawfulness of the initial detention. (See, in this

regard,
De Klerk v
Minister of Police
(CCT95/18) [2019] ZACC32;
2019 (1) BCLR 1425
(CC);
2020 (1) SACR 1
(CC).)
[84]
Two crucial factual findings of the trial court bear emphasis. First,
it found that Mr Mahlangu and Mr Mtsweni were subjected
to a
sustained assault at the hands of the police. Second, as a result of
the assault Mr Mahlangu made a statement to the police
(subsequently
reduced to writing before Captain Mabunda) incriminating himself and
Mr Mtsweni in the commission of the murders
under investigation by
Lieutenant Mthombeni.
[85]
It is as well to remember that it was never the case of Mr Mahlangu
and Mr Mtsweni that the prosecutor, in requesting their
further
detention, acted arbitrarily. On the contrary, their case and the
evidence that was before the magistrate’s court
from none other
than Lieutenant Mthombeni himself, was to the effect that Lieutenant
Mthombeni was instrumental in orchestrating
their further detention.
This he did by actively drawing the attention of the prosecutor to
the existence of Mr Mahlangu’s
incriminating statement and
that, based on its contents, the prosecution had an open and shut
case against the accused then before
court. Hence the unequivocal
indication to the magistrate by the prosecutor that bail would be
opposed.
[86]
The upshot of the first judgment, as I understand it, is that in the
context of the facts of this case borne out by the evidence
adduced
at the trial, it matters not that Lieutenant Mthombeni cunningly
engineered the further detention of Mr Mahlangu and Mr
Mtsweni by
wilfully misrepresenting the true state of affairs to the prosecutor.
This cannot be. The reason for that is not far
to seek. As the
Constitutional Court made plain in
Zealand
v Minister of Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (2) SACR 1
(CC), albeit in a different context,
that approach entirely ‘ignores the substantive protection
afforded by the right not
to be deprived of freedom arbitrarily or
without just cause’ enshrined in s 12(1)
(a)
of the Constitution. That
Zealand
‘was not concerned with whether the accused should be detained,
but with the place or manner of detention’ as the first

judgment noted matters not. To hold otherwise, as the first judgment
does, would serve as a perverse incentive to unscrupulous
police
officers to subvert the proper course of justice as has been
witnessed in this case.
[87]
Here, s 12(1)
(a)
of the Constitution was similarly breached because Lieutenant
Mthombeni, in flagrant disregard of his duty to scrupulously uphold

the law, deliberately supressed the truth in order to secure the
further arbitrary detention of Mr Mahlangu and Mr Mtsweni. Lieutenant

Mthombeni knew full well that absent Mr Mahlangu’s inculpatory
statement there was no other incriminating evidence. This

notwithstanding, he orchestrated the further detention of Mr Mahlangu
and Mr Mtsweni through his unconscionable machinations. All
of this
occurred after Mr Mahlangu’s rights to bodily integrity had
been gratuitously violated in breach of s 12(1)
(c)
of the Constitution.
[70]
[88]
That the Department of Justice and Constitutional Development, as the
employer of both the Magistrate and Prosecutor, might
have been
liable, had it been sued in respect of the post first appearance
detention, cannot, in the context of the facts of this
appeal,
absolve the Minister of Police. This must be so because what
ultimately eventuated (the several remands following the first

appearance) is what Lieutenant Mthombeni had wilfully orchestrated by
manipulating the judicial system.
[89]
There can be no question of the harm that is divisible here, where it
could be said that the initial harm following the unlawful
arrest
that is attributable to the police came to an end once Mr Mahlangu
and Mr Mtsweni were remanded in custody. It might well
be that the
Magistrate's dereliction of his or her constitutional duties under
s35 of the Constitution could be said to have rendered
the Magistrate
a joint wrongdoer with the police. But that is not a subject that I
need to broach for present purposes. Hence my
endorsement of the
judgment and reasoning of my Colleague, van der Merwe JA.
[90] For the aforegoing reasons, it is therefore with a
great sigh of relief that I find myself in agreement with the order
proposed
by van der Merwe JA.
X M PETSE
DEPUTY PRESIDENT
APPEARANCES
Counsel for Appellants: A B Rossouw SC (with him C H
Badenhorst)
Instructed by: Makhafola Verster, Pretoria
c/o
Honey Attorneys, Bloemfontein
Counsel for Respondent: R Bedhesi SC (with him D
Moodliyar)
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein
[1]
Mr
Mtsweni died before the trial was finalized. He was substituted by
the second appellant, the representative of his estate in
terms of
s
18(3)
of the
Administration of Estates Act 66 of 1965
.
[2]
See
footnote 11 below.
[3]
At
the time he testified before the trial court, Inspector Mthombeni
had been promoted to the rank of lieutenant.
[4]
A
perusal of the magistrate’s notes reveal that the plaintiffs
were detained pursuant to 13 separate court orders, granted
on 31
May 2005, 14 June 2005, 21 June 2005, 15 July 2005, 10 August 2005,
30 August 2005, 27 September 2005, 19 October 2005,
7 November 2005,
24 November 2005, 8 December 2005, 10 January 2006, and 7 February
2006 until they were released on 10 February
2006.
[5]
Mr
Makhubela and Mr van Rooyen were subsequently convicted on the
charges as they were linked to the crime scene by DNA evidence.
[6]
In
their original particulars of claim each claimed R585 000 in
respect of unlawful and wrongful arrest, R 1 700 000

in respect of unlawful and wrongful detention and R500 000 in
respect of the assault.
[7]
These
details appear from the documents in the police docket which formed
part of the trial bundle of documents. At the pre-trial
conference
it was agreed that the documents in the trial bundle are what they
purport to be, without admitting the contents thereof.
[8]
There
was no claim for patrimonial damages in respect of the assault.
[9]
L
T C Harms
Amler’s
Precendents of Pleadings
9 ed (2018) at 53.
[10]
Brand
v Minister of Justice and Another
1959 (4) SA 712
(A) 714;
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 656I-657A,
Mhaga
v Minister of Safety and Security
[2001]
2 All SA 534
(Tk) at 537;
Zealand
v Minister for Justice and Constitutional Development
[2008] ZACC 3
;
2008 (2) SACR 1
(CC).
[11]
The
trial court granted the following order:
‘
1.
Judgement is granted
against the
defendants
(the Minister of Police was
the first defendant and Lieutenant Mthombeni was the second
defendant) in favour of the first and
second plaintiffs.
2.
The
first defendant
is hereby order to compensate the first
plaintiff in the amount of R90 000.
3.
The
first defendant
is hereby order to compensate the second
plaintiff in the amount of R50 000.
4.
The
first defendant
is hereby order to pay the costs of this
action on a Magistrate’s Court scale.’
(Emphasis
added.)
The
reason for the discrepancy between para 1, and paras 2, 3 and 4 of
the trial court’s judgment is not clear. Before the
full court
both the Minister and Mr Mthombeni opposed the appeal. The name of
Lieutenant Mthombeni still featured in the heading
to the judgment
of the full court but had been omitted from the judgment of the
trial court and has been omitted from the heading
of all documents
in the record from the time of the issue of the court order
dismissing the appeal before the full court. He
has not been cited
in the petition for leave to appeal to this court, nor in the order
granted, nor in the application for leave
to appeal. In seeking that
the appeal be upheld before this court, the appellants seek a
substitution only of paras 2, 3 and
4 of the order of the trial
court, to take account of the period of the judicial detention, and
to provide that:
‘
2.
The first defendant is hereby ordered to compensate the first
plaintiff in the amount of R1 200 000;
3.
The first defendant is hereby ordered to compensate the second
plaintiff in the amount of R650 000; and that
4.
The defendant is ordered to pay the costs of the plaintiffs,
including the costs consequent upon the employment of two counsel.’
The
respondents’ heads of argument refer only to the Minister.
This appeal shall accordingly be treated as an appeal claiming

relief against the Minister only.
[12]
The
cause of action for those damages would be the
actio
legis Aquiliae
.
[13]
Isaacs
v Minister van Wet en Orde
1996 (1) SACR 314
(A). In
Abrahams
v Minister of Justice and Others
1963 (4) SA 542
(C) at 545G-H the general rule was stated as, ‘.
. . once there is a lawful detention, the circumstances of the
arrest
and capture are irrelevant.’
[14]
Minister
of Safety and Security v
Sekhoto
and Another
[2010] ZASCA 141; 2011 (5) SA 367 (SCA).
[15]
No
argument has been advanced in this appeal that these factual
findings were incorrect.
[16]
M
inister
of Safety and Security v Tyokwana
[2014]
ZASCA 130
;
2015 (1) SACR 597
(SCA) para 38.
[17]
Act
51 of 1977.
[18]
With
whom Goliath J and Mhlantla J concurred.
[19]
De
Klerk v Minister of Police
[2019] ZACC 32
;
2020 (1) SACR 1
(CC) para 132. (Citations omitted.)
[20]
See
para 183. (Citations omitted.) At para 178 observed that the first
judgment relied ‘on the minority judgment of the
Supreme Court
of Appeal that has made no effort to grapple with the imperatives of
our Constitution.’ The Supreme Court
of Appeal judgment is
reported as
De
Klerk v Minister of Police
[2018] ZASCA 45
;
2018 (2) SACR 28
(SCA). He concluded at para 184
that, ‘(f)or these reasons, I am satisfied that the
constitutional obligations imposed
on the court are an automatic
novus
actus interveniens
’.
[21]
With
whom Basson AJ, Dlodlo AJ, Khampepe J and Petse AJ concurred. See
paras 1-96.
[22]
See
paras 97-113.
[23]
Sekhoto
op
cit fn 14 paras 42-44. (Emphasis added; citations omitted.)
[24]
The
appeal in
Sekhoto
admittedly only concerned the lawfulness of the arrest and not the
issue of subsequent detention.
[25]
The
prosecutorial decision will inform the decision of the magistrate’s
order – see
Minister
of Safety and Security v Magagula
[2017] ZASCA 103
; 2017JDR 1486 (SCA) para 15.
See
also
Minister of Police and Another v Du Plessis
[2013] ZASCA
119
;
2014 (1) SACR 217
(SCA) paras 30-31:
‘
A
prosecutor exercises a discretion on the basis of the information
before him or her. In
S v Lubaxa
2001
(2) SACR 703
(SCA)
(2001 (4) SA 1251
;
[2002] 2 All SA 107)
para 19
this court said the following:
“
Clearly
a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in
the expectation
that at some stage he might incriminate himself. That is recognised
by the common-law principle that there should
be ‘reasonable
and probable’ cause to believe that the accused is guilty of
an offence before a prosecution is initiated
(
Beckenstrater
v Rottcher and Theunissen
1955 (1) SA
129
(A) at 135C-E), and the constitutional protection afforded to
dignity and personal freedom (s 10 and s 12) seems to reinforce it.

It ought to follow that if a prosecution is not to be commenced
without that minimum of evidence, so too should it cease when
the
evidence finally falls below that threshold.”
Courts
are not overly eager to limit or interfere with the legitimate
exercise of prosecutorial authority. However, a prosecuting

authority’s discretion to prosecute is not immune from the
scrutiny of a court which can intervene where such a discretion
is
improperly exercised. See generally
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (1) SACR 361
(SCA)
(2009 (2) SA 277
;
2009 (4) BCLR 393
;
[2008] 1 All SA 197)
para 37. Indeed, a court
should be obliged to, and therefore ought to, intervene if there is
no reasonable and probable cause
to believe that the accused is
guilty of an offence before a prosecution is initiated.’
(Citations omitted.)
[26]
Minister
of Police and Another v Du Plessis
[2013] ZASCA 119
;
2014 (1) SACR 217
(SCA) para 28. (Citations
omitted.)
[27]
Department
of Transport and Others v Tasima (Pty) Ltd
[2016]
ZACC 39
;
2017 (2) SA 622
(CC) paras 179-181.
[28]
Harms
Civil
Procedure in the Superior Courts
June 2018 A3.7.
[29]
Minister
of Law and Order and Another v Dempsey
1988
(3) SA 19
(A) at 37H-38G.
Airports
Company South Africa v Big Five Duty Free (Pty) Ltd and Others
[2018]
ZACC 33
;
2019 (5) SA 1
(CC) para 99.
[30]
Master
of the High Court (North Gauteng High Court, Pretoria) v Motala NO
and Others
[2011]
ZASCA 238
;
2012 (3) SA 325
(SCA) paras 12 -14 and the authorities
there referred to.
[31]
Ibid.
[32]
In
Minister
of Justice and Constitutional Development Another v Zealand
[2007]
ZASCA 92
;
2007 (2) SACR 401
(SCA) para 17
this
court held that ‘[a] decision by a court to remand an accused
person in custody results in lawful detention of that
person. Such a
decision needs to be set aside before lawful detention in terms
thereof ceases’. The subsequent decision
of the Constitutional
Court in
Zealand
v
Minister
of Justice and Constitutional Development and Another
[2008]
ZACC 3
;
2008 (4) SA 458
(CC) must be understood in its correct
context on the facts of that case. The Constitutional Court
disagreed that the series
of magistrates’ court orders
remanding the accused in custody rendered the detention of the
accused – who was detained
as a convicted prisoner, contrary
to his status as an awaiting trial detainee – lawful. It held
that the reasoning that
the accused was detained in terms of a court
order, and therefore that this does not affect the lawfulness of his
detention,
is to ignore the substantive protection afforded by the
right not to be deprived of freedom arbitrarily or without just
cause,
as contained in s 12(1)
(a)
of the Constitution.
Zealand
was however not concerned with whether the accused
should
be detained, but with the place or manner of detention. The breach
of s 12(1)
(a)
of
the Constitution, because he was detained as a sentenced offender,
was sufficient in the factual circumstances of that case
to render
the detention unlawful for the purposes of a delictual claim for
damages.
[33]
Woji
v Minister of Police
[2014]
ZASCA 108; 2015 (1) SACR 409 (SCA).
[34]
Minister
of Safety and Security and Another v Ndlovu
[2012]
ZASCA 189
;
2013 (1) SACR 339
(SCA) para 13.
[35]
De
Klerk
op
cit fn 19 para 49.
[36]
De
Klerk v Minister of Police
[2018]
2 All SA 597
(SCA);
2018 (2) SACR 28
(SCA) para 24.
[37]
The
judgment of Theron J stated at para 22 that
‘[t]he
application for leave to appeal filed before us unequivocally frames
the question as one of legal causation’.
[38]
De
Klerk
op
cit fn 19 para 19. (Emphasis added.)
[39]
The
minority judgment of this court in
De
Klerk
(op
cit fn 31 para 44) held that ‘
that
balance is appropriately struck by holding that an arresting officer
is not liable for detention ordered by a court pursuant
to a
deliberative or considered judicial process, unless the arresting
officer has the full animus iniuriandi required for malicious

deprivation of liberty. The requisite animus iniuriandi might be
present at the time of the arrest or might come into existence

afterwards. Either way, in such a case one is dealing with two
wrongful acts, namely the wrongful arrest and the malicious

deprivation of liberty (ie instigating the judicial detention).’
[40]
De
Klerk
op cit fn 19 para 81. Emphasis added.
[41]
Emphasis
added.
[42]
De
Klerk
op
cit fn 19 para 86. (Emphasis original.)
[43]
De
Klerk
op
cit fn 19 para 88. (Emphasis added.)
Neither
the magistrate, nor the Department of Justice, had been joined as
parties to the action, which had the result of non-suiting
Mr de
Klerk in respect of any claim against them.
[44]
Ibid
para 103. (Italics my own.)
[45]
Jurgens
and Others v Volkskas Bank Ltd
[1992] ZASCA 152
;
1993
(1) SA 214
(A) at 221G-H cautioned that:
‘
At
the outset it is useful to bear in mind the salutary reminder of the
Earl of Halsbury LC in
Quinn v Leatham
[1901] UKHL 2
;
[1901] AC 495
(HL) at 506
“
.
. . that every judgment must be read as applicable to the particular
facts proved, or assumed to be proved, since the generality
of the
expressions which may be found there are not intended to be
expositions of the whole law, but governed and qualified by
the
particular facts of the case in which such expressions are to be
found . . . that a case is only authority for what it actually

decides”.’
[46]
De
Klerk
op cit fn 19 para 63. (Emphasis added.)
[47]
The
phrase used by Theron J in
De
Klerk
para 63, as quoted above.
[48]
Barclays
National Bank Ltd v Traub; Barclays National Bank Ltd v Kalk
1981
(4) SA 291
(W) at 297H-298A.
[49]
Moaki
v Reckitt and Colman (Africa) Ltd and Another
1968
(3) SA 98
(A) at 104E-F;
Relyant
Trading (Pty) Ltd v Shongwe and Another
[2006]
ZASCA 162
;
[2007] 1 All SA 375
(SCA) para 5.
[50]
Sikhunana
v Minister of Safety and Security
[2013]
ZAECPEHC 23 para 16.
An
arrest is malicious when the defendant makes improper use of the
legal process to deprive a plaintiff of his or her liberty.
This
is similarly the case in respect of malicious detention.
[51]
Woji
v Minister of Police
[2014]
ZASCA 108; 2015 (1) SACR 409 (SCA).
[52]
The
basis for Mr Woji’s claim was described as '… that the
magistrate, in refusing to grant bail, acted upon the
information
supplied by Insp Kuhn’ (
Woji
op
cit fn 50 at 415C-D).
[53]
Molusi
and Others v Voges NO and Others
[2016] ZACC 6
;
2016 (3) SA 370
(CC) para 28. (Citations omitted.)
[54]
Minister
of Safety and Security v Slabbert
[2009]
ZASCA 163
;
[2010] 2 All SA 474
(SCA) para 11.
[55]
No
consequential adjustment was made in terms of rule 28(8) in response
to the amended particulars of claim, nor was any consequential

adjustment made to the plea in response to the informal amendment
effected during the trial.
[56]
The
action forming the subject of this appeal was preceded by
proceedings in the magistrate’s court, which were withdrawn
by
the plaintiffs. In that action the plaintiffs formulated their cause
of action as follows:
‘
7.
The Plaintiffs appeared for the first time at Middleburg
Magistrates’ Court on the 31
May 2005 and consequently
(Mthombeni) instructed the Prosecutor who attendant to the Case to
deny them bail on the strength that
he had a strong case against the
Plaintiffs and they appeared under case no 201/05/2005.
8.
As a result of the denial by the Prosecution to afford the Plaintiff
to be released on bail Plaintiffs were kept in custody
from the 31
May 2005 until the matter was withdrawn on the 10 February 2006 due
to lack of evidence.
9.…
10.…
11.
The arrest and detention were at all times caused or instigated by
(Mthombeni) acting in the cause and scope of his employment
with the
(respondent).’
This
formulation was however not followed in the high court pleadings.
[57]
See
Shill
v Milner
1937
AD 101
at 105.
[58]
The
factual basis and the findings from which it can be inferred are
referred to in para 5 above.
[59]
These
would include summons, written notice or indictment.
In
terms of s 38(1) of the CPA the attendance of an accused person can
be secured before a court by arrest, summons, written notice,
or
indictment.
[60]
In
terms of s
ection
219 of the CPA, an extra-curial confession cannot be used
against a co-accused. The confessor cannot be called
as a witness by
the prosecution in the same proceedings unless his status as a
co-accused is ended. There was no indication that
the status of Mr
Mahlangu as a co-accused would be terminated for this purpose.
[61]
S
v Hudson and Others
1998 (2) SACR 359
(W) at 360J-361A. The question
which arose in that matter was whether a confession implicating a
co-accused was sufficient to
refuse an application in terms of
s
174 of the CPA. It was held that ‘where such confession
contained an indication that the co-accused would possibly implicate

the applicant for discharge, the court could form an impression of
how the trial might unfold’ and that ‘[i]n such

circumstances the court would fail in its duty to weigh also the
interests of the State and of the community, if it simply granted
a
discharge’ (359). That conclusion can no longer be good law
after the decision in
S
v Lubaxa
(op cit fn 52).
[62]
Ibid.
(Citations omitted; emphasis added.)
[63]
On
the facts of
De
Klerk,
in a non-reception court situation, as in the present appeal.
[64]
Caswell
v Duffryn Associated Collieries Ltd
(1939)
3 All ER 722
at 733; followed in
S
v Naik
1969 (2) SA 231
(N) at 234D-E.
[65]
Nohour
and Another v Minister of Justice and Constitutional Development
[2020]
ZASCA 27
paras 14-15. (Citations omitted; emphasis supplied.).
[66]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) para 28.
[67]
Art
1 of the
Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) defines
‘torture’
to include ‘. . . (A)ny act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person
for such purposes as obtaining from him or a third person
information or a confession . . . when such pain
and suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person
acting in an
official capacity . . . . ’ South Africa ratified CAT
on
10 December 1984, and it entered into force on 26 June 1987, 1465
UNTS 85.
The prohibition against torture is one of our most fundamental
constitutional values. To torture anyone to obtain a confession
is a
crime that the CAT requires all member states to investigate
thoroughly to ensure that perpetrators are severely punished.
See
S
v Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA) para 30.
[68]
Section
35(1)
(c)
of the Constitution.
[69]
Section
35(1)
(f)
of the Constitution.
[70]
Section
12(1)
(c)
reads:
‘
Everyone
has the right to freedom and security of the person, which includes
the right –
(c)
to be free from all forms of violence from either public or private
sources.’