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[2024] ZAECMHC 74
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Menyo v Minister of Police and Another (579/2021) [2024] ZAECMHC 74 (17 September 2024)

IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MTHATHA]
CASE NO.: 579/2021
In the matter
between:-
SIYABULELA
MENYO

PLAINTIFF
and
MINISTER OF
POLICE

FIRST DEFENDANT
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS

SECOND DEFENDANT
JUDGMENT
NORMAN J:
[1]
Plaintiff instituted damages claim against the Minister of Police,
who was cited as the first
defendant for unlawful arrest in the
amount of R300 000.00 and for unlawful detention in the amount
of R500 000.00. He
cited as the second defendant, the National
Director of Public Prosecutions and claimed for malicious prosecution
an amount of
R500 000.00.  There was no separation of
issues of merits and quantum as envisaged in Rule 33 (4) of the
Uniform Rules
of Court. The Minister of Police and the plaintiff
settled the dispute between them. This judgment involves only the
second defendant.
Plaintiff’s case
[2]
Plaintiff testified that he was a witness in a murder trial at the
Regional Court sitting
at Qumbu. After he gave his testimony he was
directed by the Regional Court Magistrate to take a sit on the
benches.  The
trial proceeded and was postponed around 16h00. He
waited for witness fees for transport and for food.  Two police
officers
arrived and arrested him and took him to the police station
where he was charged. They transferred him to Tsolo police station
where he was detained in the police cells.   He found about
20 to 21 other detainees. He was made to sit on the floor.
It was
cold and there was a bad smell because the ablution facilities were
also in the same cell.  He was not offered any
food. He was not
given anything to sleep on.  The next day the same police
officers who arrested him took him back to Qumbu
police station. He
was made to sign documents and nothing was explained to him. He was
detained at the Qumbu police cells.
After 18h00 when other
inmates were served food he was not because he was told by the lady
who was accompanied by police, who came
to serve them food that
because he did not have a dish he would have to eat from the floor.
He was given a blanket to sleep
on. The following day more detained
were brought into the cell.  There were too many to the extent
that he sat on the toilet
seat that night.
[3]
The day the same police officers came and took him out. They were
hitting him on the head. He
was again made to sign a document. He did
not know what was written on it. On 8 June 2020 he was taken to
court. The prosecutor
indicated that he was not going to be released
on bail because they were going to check his status.  He was
remanded for seven
(7) days.  He was transferred to Wellington
prison.  On the second occasion he was taken to court he was
granted bail.
[4]
He testified that the conditions in Wellington were not good because
there were no sponges or
blankets and he slept in his clothes. There
were about 70 -75 inmates in the cell that he was put in.  When
he went to court
after he had been released on bail he was told the
case had been withdrawn.  He had a legal representative who was
ready to
proceed instead they were told the docket could not be found
and he could go collect the bail money.  His brother is the one

who had paid bail and he collected it.
[5]
At the time of his arrest he was working as a painter and a tiler.
He was never told that
he had lied in court or the reason for his
arrest. During the arrest and detention he was fearful. He felt that
prosecutors wanted
to cause him pain and indeed he felt pain. The
community labelled him as a criminal.  He was dismissed by his
employer Mr
Xolisa Mneno.
[6]
During cross- examination Mr Badli who appeared for the second
defendant indicated to the Court
that the claim between plaintiff and
his client had been settled. A draft order consented to by both
parties was made an Order
of court.
[7]
In cross- examination, Ms Qikila, who appeared for the second
defendant, put to the witness that
the witness for prosecution will
tell the court that the prosecutor decided to enrol the case on the
basis of the documents that
were in the docket including statements
in CAS /09/6/2020. The witness will also tell the court that there
was a link between the
charge and the offence that the plaintiff had
committed. There was a warning statement where the plaintiff admitted
that he gave
false information at the Regional Court in Qumbu.
The plaintiff responded that in court he told the truth when he
testified.
It was put to him that he gave a reason for giving
false evidence that because he was raised at the Mthobeli Mvana’s
homestead
he was afraid that he was going to be chased away from that
homestead.  Plaintiff admitted that he was raised by the Mvana

family but denied that he gave false evidence. He stated that the
public prosecutor Mr Bidla told him to come and sit in court
he was
not going to be used as a witness because he was raised by that
family.
[8]
She put to the plaintiff that the witness will testify that she
consulted with Mr Bidla in order to
clarify issues in his statement
which was A1 in the docket.  The witness was told by Mr Bidla
that he led the witness in the
morning but after lunch the witness
changed all his evidence.  Plaintiff denied that he changed his
evidence. It was put to
the plaintiff that the matter was struck off
the roll due to unavailability of the docket and can still be
reinstated.  Plaintiff
responded that he would be happy if the
matter could be reinstated so that he would know whether he was
guilty or not.  Upon
such response it was put to the plaintiff:
‘
I am not saying the matter will
be re- enrolled. The public prosecutor is saying if the docket is
found the matter may be reinstated
’.
Plaintiff closed his case.
[9]
The second defendant applied for
absolution from the instance on the basis that plaintiff failed
to
discharge the onus resting on him. She argued that plaintiff failed
to prove that the prosecution has failed or that the trial
was
finalized in his favour. She further argued that plaintiff failed to
prove that the second defendant acted without reasonable
and probable
cause or that the second defendant acted with malice. She argued that
in
Minister
for Justice & Constitutional Development v Moleko
[1]
.
On this basis she asked that the Court should grant absolution from
the instance.  Ms Mncotsho – Boya, for the plaintiff

opposed the application for absolution. She argued that plaintiff was
not declared a hostile witness in the murder trial or impeached.
On
this basis she argued that the court must refuse to grant absolution
from the instance.
[10]
I applied the test in
Claude
Neon Lights (SA) Ltd v Daniel
[2]
that
absolution from the instance might be granted if, at the closing of
the plaintiff’s case, there is no evidence to support
the
plaintiff’s claim or there is insufficient evidence upon which
a court, acting reasonably, could or might find for the
plaintiff. I
refused to grant absolution from the instance and undertook to give
reasons in this judgment.
[11]
The evidence of the plaintiff was not disputed by
the second defendant by way of cross- examination. All
that happened
was that a version was put to the plaintiff and he was afforded an
opportunity to comment thereon.  I was therefore
satisfied that
there was accordingly evidence to support plaintiff’s claim and
that this court acting reasonably could find
for him.
Defendant’s
case
[12]
Second defendant led the evidence of Ms Elizabeth Nomabali Mcaba.
She is employed by the second
defendant as a prosecutor.  She
has been employed for fifteen years.  She is the prosecutor that
enrolled the matter
as she was working at Qumbu.  She testified
that before enrolling a matter she looked at the statements to see
whether there
is anything that links or implicates the accused person
to the offence, whether there is anything that the accused has to
answer
to.  She considered the complainants statement, all the
documents in the docket, a copy of the constitutional rights of the

accused, whether there is confirmation that the accused had been
arrested.  After reading the complainants statement she read

therefrom that the plaintiff had taken an oath to give evidence but
having done so when he was under cross – examination
he decided
to say he saw nothing.  She realized that in the statement it
was not clear that the accused had changed what he
said before.
[13]
The complainant, Mr Bidla was also a prosecutor in the same office.
She called the complainant for
clarity. She had looked at the
accused’s warning statement. The accused admitted that he gave
false evidence because he was
raised by Mthobeli Mvana’s
family. He was afraid that he would be chased away from that
homestead. In consultation with the
complainant he established that
Mthobeli Mvana was the accused in the murder trial case.  She
decided that, having taken into
consideration all that information
that there was enough evidence to enroll the matter for the accused
to explain himself in court.
She responded to certain
allegations contained in the particulars of claim, in particular, at
paragraph 15.1 where it was alleged:
“
The
Public Prosecutor who enrolled the matter for prosecution on the 08
th
day of June 2020 had no reason to prosecute the Plaintiff but he or
she enrolled the matter base(sic) on the factor that the complainant

was also a Public Prosecutor in the regional Court of Qumbu.”
[14]
She denied the allegations that there were no reasonable factors
justifying the prosecution; that she
failed to consider relevant
information and that the prosecution was instigated by malice.
Under cross – examination
she did not fare well. She
contradicted herself about the warning statement whether it was
complete or not. She was not certain
whether there was a commissioned
warning statement or not.  Her evidence changed that they do not
rely on the warning statements
because in many instances the accused
state that they choose to remain silent.  They rely mainly on
the ‘A1’ statement.
She stated that for purposes of
enrolling a case they look at whether there is a
prima facie
case, whether there is something that an accused has to answer to.
That is what is key for the screening prosecutor because
there are
usually many new cases that are brought which must be enrolled by
10h00.
[15]
When questioned about the failure to consult with the policeman, Mr
Phakade, who took down the warning
statement and on its authenticity,
she stated that that was not the work of the screening prosecutor but
for the prosecutor that
is going to run the trial.  When it was
put to her that plaintiff disputed the contents of the statement, her
response was
that that had nothing to do with the screening
prosecutor.  The docket was brought on the 8 June 2020 and she
took between
5 to 10 minutes before enrolling it.  That time
included the consultation she had with the complainant.
When asked
who brought the docket to her. She answered that it was
the police.
[16]
When asked about the name of the police she responded that dockets
would not be brought to her by detectives
as there is someone
attached to the police who would bring the docket.  She conceded
that the information sought and given
to her by Mr Bidla was known to
her alone and was not under oath.  She later conceded that from
the statement of Mr Bidla
there was a contradiction made by the
plaintiff.  She did not enquire from Mr Bidla about what
happened in court, in fact,
she stated that she was not interested in
that. Initially she stated that she considered the elements of
perjury but not all, later,
she changed and stated that she did not
use the elements per se and could not refer to any elements of the
offence whether they
were there or not.
[17]
When the elements of perjury were put to her, she agreed but stated
those elements are to be proved
at trial but for screening purposes
she had to establish the reasonable prospects of a successful
prosecution. She did not dispute
that the plaintiff attended court on
five occasions.  The second defendant closed her case.
Issues
for determination
[18]
Both parties agreed that this court had to determine whether the
prosecution of plaintiff was malicious;
whether there was probable
and justifiable cause to prosecute plaintiff; whether the prosecutor
acted with malice in prosecuting
plaintiff, whether there was a
prima
facie
case on which the plaintiff’s prosecution was based
and whether the prosecution failed.
Submissions
on behalf of the plaintiff
[19]
Ms Mncotsho – Boya submitted that plaintiff had discharged the
onus resting on him.  She
submitted that the fact that Ms Mcaba
relied on the statement of Mr Bidla that did not contain the elements
of the offence of perjury
and on the non- commissioned warning
statement of the accused, offends the requirement that a prosecution
should be commenced when
there is prima facie evidence, made under
oath.  In this regard she relied on
Matsose
v Minister of Police and Another
[3]
.
She
further argued that there was no reasonable and probable cause for
the prosecution. In this regard she relied on
Beckenstrater
v Rottcherand Theunissen
[4]
.
[20]
She submitted that Ms Mcaba acted recklessly in prosecuting the
plaintiff and foresaw the possibility that
initiating the prosecution
was wrongful in that there were no reasonable grounds for doing so.
She relied on the
National
Director of Public Prosecutions v Sijoyi Robert Mdhlovu
[5]
for that contention.  She submitted that the prosecution failed
because plaintiff last appeared in court in 2020. A period
of 4 years
has since lapsed.  The case has not been reinstated since 2020.
The second defendant’s counsel indicated
that the case would
not be reinstated. She relied on
Payi
v Minister of Police and Another
[6]
,
where Pakati J, stated ‘in
casu,
the prosecutor did not believe that the plaintiff was guilty, hence
he argued with his seniors  and was not opposed to
plaintiff’s
release on 12 September 2018 when the matter was struck from the
roll.
’
She submitted that the
Payi
decision
applies to this matter.
[21]
She further submitted that the second defendant failed to put her
version to the plaintiff in relation to
two critical issues, namely,
how malicious prosecution made him feel, how the community viewed him
after the arrest and that when
he testified in the criminal court he
told the truth.  She submitted that the court must accept that
which was not challenged
and referred in this regard to a
Constitutional Court decision in
President
of the Republic of South Africa v South African Rugby Union
[7]
.
[22]
She conceded that the pleadings do not specifically allege that the
prosecution of the plaintiff failed.
She contends that the
issue was sufficiently canvassed during trial the court should follow
the decision in
Minister
of Safety and Security v Slabbert
[8]
.
She submitted that plaintiff discharged the onus resting on him and
judgment should be entered in his favour.
Submissions
by the second defendant
[23]
Ms Qikila submitted that plaintiff failed to discharge the onus
resting on him, to prove that the prosecution
of the plaintiff was
malicious. He also failed to prove that the proceedings were
terminated in his favour. She submitted that
if a matter is struck
off the roll that does not amount to termination of the proceedings.
She submitted that when Ms Mcaba
enrolled the matter she was able to
have regard to the whole docket. That way she did not ignore any of
the evidence that was placed
before her.  She submitted that in
‘A1’ it is clear why the plaintiff was charged and what
offence he had committed.
That, she argued, was confirmed in
the warning statement where it is indicated that plaintiff made a
false statement because he
confirmed that he was raised by the Mvana
family. She submitted that the prosecutor did not have to prove the
truth of that statement.
She only needed to find the link between the
charge and the offence with everything to be clarified in court.
She submitted
that the second defendant admitted that she set the law
in motion. The prosecutor believed that there was a prima facie case
hence
she enrolled the matter. She further argued that the plaintiff
failed to prove that the proceedings were decided in his favour.

Plaintiff, she argued, failed to prove malice on the part of the
second defendant.  On this basis she argued that the claim

should be dismissed with costs. She relied on the
Moleko
judgment
referred to, above.
Quantum
[24]
Ms Mncotsho – Boya relied on several previous awards on the
issue of quantum.  She placed reliance
on
Nkogatse
v Minister of Police and Another
[9]
an amount of R500 000.00 was awarded to a former police officer
for damages arising out of his malicious prosecution.  She

further relied on
Rautenbach
v Minister of Safety and Security and Others
[10]
where the plaintiff appeared before court four to five times and
charges were withdrawn after six months. Damages were awarded
in the
amount of R150 000.00. In
Gumbi
v Minister of Police
[11]
where
the court awarded an amount of R570 000.00 for malicious
prosecution damages. The plaintiff appeared nineteen times in
court
and his case attracted media publicity. She also relied on the case
of
Payi
v Minister of Police and Another
[12]
where an amount of R300 000.00 was awarded to plaintiff for
damages he suffered as a result of malicious prosecution.
She
submitted that an amount of R350 000.00 as an award for damages
would be adequate.
Second
defendant’s submissions
[25]
Ms Qikila submitted that the correct approach is to have regard to
all the facts of the particular
case and to determine the
quantum
of damages on such facts. She relied on
Minister
of Safety and Security v Seymour
[13]
where the award of R500 000.00 was set aside on appeal and
substituted by an amount of R90 000.00. She submitted further

that the amount claimed by the plaintiff, R500 000.00, is too
excessive. Comparing the facts in
Rudolf
v Minister of Safety and Security
[14]
to this one, she submitted that both appellants were arrested on the
18
th
July 2003 and appeared in court on the 21
st
July 2003. The Supreme Court of Appeal in respect of Claim 2 for
malicious prosecution awarded R50 000.00 in which the current

value is R137 000.00.
Discussion
[26]
In
Minister
of Justice and Constitutional Development and Others v Moleko
[15]
the
Supreme Court of Appeal set out the elements or requirements for an
action for malicious prosecution in these terms:
“
8.
In order to succeed (on the merits) with a claim for malicious
prosecution,
a claimant must allege and prove –
(a)
that the defendants set the law in motion (instigated or
instituted the proceedings);
(b)
that the defendants acted without reasonable and probable
cause;
(c)
that the defendants acted with ‘malice’ (or animo
injuriandi); and
(d)
that the prosecution has failed.”
[27]
It
is common cause that the prosecution initiated the prosecution and it
set the law in motion.
[16]
It
is also common cause that the plaintiff was refused bail at the
instance of the prosecution. He appeared in court five times
before
the case was struck from the roll.  The second defendant
submitted that the striking off of a matter does not mean
success for
the plaintiff.
[28]
I have to determine on the facts whether by instigating the
proceedings the second defendant acted without reasonable
and
probable cause.
[29]
Ms Mcaba testified that she had regard to the contents of the docket
and in particular, “A1”,
being the complainant’s
statement, Mr Bidla, the notice of the accused’s rights, the
accused’s warning statement,
the statement of arrest. She found
that the statement was not clear and she needed to be satisfied that
there is a case for the
accused to answer. She   sought
clarity by consulting with the complainant, her colleague.
Thereafter she decided
to enrol the matter. The second defendant did
not lead the evidence of the complainant, Mr Bidla but relied on his
A1 statement.
The statement of the complainant briefly recorded that
the complainant is a Regional Court prosecutor. He stated that:
“
On
the 04 June 2020 at Qumbu Magistrates Court at about 12:00 he was
prosecuting a Mr Mthobeli Mvana who was charged with two counts
of
murder that occurred at Gura location, Qumbu.”
He
led the witness, (the plaintiff) in this case
,
“
who
narrated the whole story in court and in the morning I read the
docket content to him and  he confirmed all what
is
contained  there is what happened.
During
cross exam by the defence he decided to say he saw nothing on the day
in question he was drunk while a statement was taken
from him on the
day of the incident.
I
therefor laying a charge of perjury against Siyabulela Menyo.’
[30]
The statement was commissioned.  Nowhere in the statement is the
part of the evidence complained
of set out in detail.
[31]
The warning statement referred to in Ms Mcaba’s evidence
stated:
“
I,
Siyabulela Menyo, wish/ do not wish to make a statement/answer the
following questions (Delete not applicable)
I
admit that I did gave false information at Regional Court at Qumbu,
the resoan(sic) is that I was raised at Mthobeli Mvana’s

homestead so now I am        afraid
that the Mvana Family will chase me away from their homestead.”
[32]
I hasten to point out that plaintiff
disavowed
the warning statement as he testified that he was made to sign
documents which had not been explained to him.  The warning

statement does not have any deletions of what was not applicable as
indicated on the form itself. It is not clear whether the plaintiff

had been warned to remain silent and of the implications of making
the statement since none of those choices were properly indicated
on
the form.
[33]
The enquiry involves both a subjective and an
objective element.  In
Prinsloo
v Newman
[17]
the
Court held:
‘
Not
only must the defendant have subjectively had an honest belief in the
guilt of the plaintiff, but his belief and conduct must
have been
objectively reasonable, as would have been exercised by a person
using ordinary care and prudence.”
[34]
The statement of the complainant as correctly
found by Ms Mcaba lacked factual details. It does not detail
what was
in the plaintiff’s statement and what was said in court
contrary to what was stated in that evidence.  Whether
the
plaintiff’s statement was made under oath because Mr Bidla
simply stated that he read out the docket to the plaintiff.
What is
the evidence that was given in court by the plaintiff or what is the
information referred to in the warning statement?
What is the
evidence that the plaintiff gave in court which differed from the
statement allegedly made by him? Where was the statement
allegedly
made by the plaintiff? Was that statement made under oath? What is it
that the statement said about the Mvana family
in the original
statement, if it existed, which he later changed in evidence? What is
the procedure that Mr Bidla followed in court
when he formulated a
view that plaintiff had changed his evidence? Was there an enquiry by
the court into this? Was the plaintiff
warned by the court that the
State was going to embark on impeachment process as a witness or to
declare him hostile? None of that
information was present before Ms
Mcaba.
[35]
As a prosecutor with experience she had to, at
least, satisfy herself that there was evidence that was given
by the
plaintiff, the nature thereof, the evidence was given before the
Regional Magistrate under oath, how and to what extent
was that
evidence changed to warrant a charge of perjury.  In her
evidence she stated that she asked the complainant who Mthobeli
Mvana
was. The complainant told her that Mthobeli was an accused in the
murder case where the plaintiff was a witness and he changed
his
evidence about Mthobeli Mvana.  Again, no details of this
evidence that was changed were given by Ms Mcaba. She decided
that if
that is what the plaintiff did he needed to explain himself in
court.  What is lacking from that explanation is that
she had no
evidence before her which pointed to a commission of the charge of
perjury even at a
prima facie
level.  I say this for
these reasons:
[36]
A
prima
facie case
would be made out when there is evidence upon which a court, applying
its mind reasonably, could or might find for the plaintiff
[18]
.
In order for a prima facie case to exist there must be evidence in
respect of each essential element of the claim.
[19]
That is a
prima
facie
case in civil litigation. In criminal cases that standard is set out
in Matsose v Minister of Police
[20]
as , ‘
allegations,
as supported by statements and where applicable combined with real
and documentary evidence available to the prosecution,
are of such a
nature that if proved in a court by the State on the basis of
admissible evidence, the court should  convict.”
[37]
Perjury consists in the unlawful and intentional
making , upon oath, affirmation or admonition and in the
course of
judicial proceedings before a competent tribunal, of a statement
which the maker knows to be  or foresees may be
false
[21]
.
[38]
The above definition is simplified by  Professor Snyman
[22]
as : “
the
unlawful and intentional making of a false statement in the course
of  a judicial proceeding which is material to any issue
in the
proceeding, by a person who has taken the oath or made an affirmation
before, or who has been admonished by, somebody competent
to
administer or accept the oath, affirmation or admonition.’
[39]
Getting back to the facts of the case Ms
Mcaba  was not able to articulate the elements of an
offence of
perjury.  In order for her to be satisfied that an offence had
been committed she needed to appreciate what those
elements were.  To
avoid the questions relating to these elements she said it was for
the prosecutor at trial to know those
elements. If she acted in a
prudent manner she would have realized that the complainant made no
mention of the nature of the evidence
that was given which was later
changed.  Relying on the warning statement which was not a sworn
statement of the plaintiff
and without speaking to Sergeant Phakade
to ascertain the circumstances under which the statement was taken,
demonstrated recklessness
and showed that Ms Mcaba did not excise the
care and prudence that is expected of her. Most importantly in this
case the relevant
warning statement has the problems that I have
already alluded to.
[40]
Whatever information she received from the
complainant as explanation for what is not contained therein
was
never reduced into writing. Secondly, whatever facts were contained
in the plaintiff’s statement were not known to Ms
Mcaba because
she did not mention it as one of the documents that she had regard
to. Most importantly the statement allegedly made
by the plaintiff
before the Regional Court was not placed before Ms Mcaba and before
this court.
[41]
Perjury is regarded as a serious criminal offence
because it negatively impacts on the ability of the justice
system to
get to the truth.
[42]
Taking into account all the evidence, I find that
the second defendant did not have such information as
would lead a
reasonable person to conclude that the plaintiff had probably been
guilty of the offence charged.  Ms Mcaba,
in her own words, did
not know the elements necessary to prove an offence of perjury. It
follows that she could not have objectively
believed that there was a
prima facie
case. That means that there was no reasonable and
probable cause to enroll the matter.
Was there malice or
animo injuriandi
[43]
When the Supreme Court of Appeal dealt with the requirement that the
defendant must have acted with
malice or animo injuriandi
at paragraph 61 of the
Moleko
judgment it held:
“
In
the Relyant case, this court stated the following
in regard to the third requirement:
Although the
expression “malice” is used, it means, in the context of
the actio iniuriarum, animus iniuriandi.
In Moaki v
Reckitt & Colman (Africa) Ltd and another Wessels JA said:
“
Where
relief is claimed by this actio the plaintiff must allege
and prove that the defendant intended to injure (either dolus

directus or indirectus). Save to the extent that it might
afford evidence of the defendant’s true intention or
might
possibly be taken into account in fixing the quantum of
damages, the motive of the defendant is not of any legal
relevance.”
[44]
At paragraph 62 in the
Moleko
judgment, the Supreme Court of
Appeal stated:
“
In so doing,
the Court decided the issue which it had left open in Lederman v
Moharal Investments (Pty) Ltd and again
in Prinsloo v
Newman namely that animus injuriandi, and not malice, must
be proved before the defendant can be held
liable for malicious
prosecution as injuria.”
[45]
At paragraph 63 the court stated:
“
Animus
injuriandi includes not only the intention to injure, but also
consciousness of wrongfulness:
‘
In this
regard animus injuriandi (intention) means that the
defendant directed his will to prosecuting the plaintiff (and
thus
infringing his personality), in the awareness that reasonable grounds
for the prosecution were (possibly) absent, in other
words, that his
conduct was (possibly) wrongful (consciousness of wrongfulness). It
follows from this that the defendant will go
free where reasonable
grounds for the prosecution were lacking, but the defendant honestly
believed that the plaintiff was guilty.
In such a case the second
element of dolus, namely of consciousness of wrongfulness, and
therefore animus injuriandi,
will be lacking. His mistake
therefore excludes the existence of animus injuriandi.”
[46]
I am satisfied that Ms Mcaba knew and appreciated that to prosecute
where there was insufficient evidence
was wrong. She appreciated such
wrongfulness when she found that “A1” was not clear and
had to consult with the complainant.
Instead of her refusing to enrol
the matter until there was sufficient evidence, she tried to augment
the case by consulting with
the complainant whose supplementary
information was not documented.  I find that by so doing, Ms
Mcaba had the intention to
injure the plaintiff and directed her will
to prosecuting him and thus infringing his personality, in the
awareness that reasonable
grounds for the prosecution were possibly
absent.   I find that plaintiff has , on a balance of
probabilities , proved
this requirement.
That the prosecution
failed
[47]
Ms Qikila submitted that plaintiff failed to satisfy this
requirement.  Although this requirement
was not pleaded clearly
in the particulars of claim, the evidence, which is undisputed is
that after several postponements the
matter was struck off the roll
due to unavailability of the docket.  Ms Mncotsho – Boya
submitted that this court must
adopt the approach in
Minister
of Safety and Security v Slabbert
[23]
held:
“
There
are, however, circumstances in which a party may be allowed to rely
on an issue which was not covered by the pleadings. This
occurs where
the issue in question has been canvassed fully by both sides at the
trial.”
[48]
This issue was fully canvassed at the hearing. The issue is whether a
matter struck off from the roll means
failure of the prosecution.
That debate too emerged at the trial.  In this regard Ms
Mncotsho – Boya relied on
Payi
v Minister of Police and Another
[24]
where the plaintiff was successful in a claim that followed after the
matter was struck off the roll.  A matter is struck
from the
roll because for one reason or another prosecution is not able to
proceed.  It may be as a result of witnesses that
have not come
to court or a docket that has gone missing as in this case.  A
criminal case that has been struck off, in my
view, has the same
consequences as a matter that has been withdrawn in that it is not
pending before court.  The prosecution
has not had a successful
prosecution. If one were to follow the second defendant’s
reasoning, that would mean that the prosecution
could enrol matters
where it does not believe that the plaintiff is guilty and simply
have those matters struck from the roll.
That would amount to a
travesty of justice because a matter could remain struck from the
roll for years with all those plaintiffs
not being able to institute
claims, if they so wish.  The evidence of the plaintiff that he
was told that the docket could
not be found and he could collect his
bail money , was not disputed. His brother who had posted bail for
him collected it.  It
has been four years since the matter was
struck from the roll. In those circumstances, in my view, for  all
intents and purposes
the prosecution has failed.
[49]
Section 342A (1) enjoins a court before which criminal proceedings
are pending to investigate any delays
in the completion of the
proceedings which appear to be unreasonable and could cause
substantial prejudice to the prosecution,
the accused or his legal
advisor, the State or a witness. This section is crafted in
peremptory terms. In
S
v Ndibe
[25]
,
Ndita J held that:
“
[5] This matter
is concerned with the interpretation of s 3 (c) and (d). This is so
because although the accused had pleaded and
evidence led, the order
issued by the presiding judicial officer was in terms of s 3(c). It
is so that courts have a duty to ensure
that that the rights in terms
of s 35(3) to have trials commencing and being completed without
unreasonable delay are enforced.
Section 342(1) enjoins a court
before which criminal proceedings are pending to ‘investigate’
the cause of the delay.
In S v Van Huysteen
2004
(2) SACR 478
(C
),
Traverso J (as she then was) held that s 342 (3) (c) does not require
that a formal enquiry be held nor that a formal finding
has to be
made. If the presiding officer enquires as to the reasons for the
request for a further postponement and concludes that
a further
postponement would lead to injustice, that is sufficient. The learned
judge further held that s 342 A merely provides
guidelines for the
factors which a court should take into account when deciding whether
to refuse a postponement or not. 342A(3)
does not require that a
formal enquiry be held or a formal finding be made. At para [8], page
480c-e the honourable judge
heid that:
“
Na my mening
hoef daar geen formele ondersoek gehou te word of geen formele
bevinding gemaak te word ingevolge hierdie artikel nie.
Indien die
voorsittende beampte navrae doen oor die redes vir die versoek om 'n
verdere uitstel, en die mening huldig dat 'n verdere
uitstel tot 'n
onreg sal lei is dit na my mening voldoende. Na my mening le art 342A
slegs riglyne neer oor die faktore wat 'n
hof in aanmerking moet neem
by die oorweging van die vraag of ’n uitstel geweier moet word
al dan nie.”
The learned judge
recognising the importance and indispensability of section 35 of the
Constitution, stated the following at para
[9] on 480e-f:
“
[9] Hierdie
artikel moet voorts ook gelees word teen die agtergrond van die
bepalings van die Grondwet van die Republiek van Suid-Afrika
108 van
1996 en meer bepaald die bepalings van art 35 daarvan, waarvolgens 'n
beskuldigde se reg op 'n regverdige verhoor (met
inbegrepe sy reg om
sy verhoor sonder 'n onredelike vertraging te begin, en af te handel)
aangestip word.”
[6]
Whilst in some cases it may be apparent ex facie the record that a
further
postponement is prejudicial to an accused person, the enquiry
envisaged in s 342 takes into account that the decision to remove
a
matter from the roll ought to involve a consideration as well as
balancing of all the factors listed in s 3(2) in assessing whether

the delay is unreasonable. It can be accepted that judicial officers
to a large extent, and as they should, proactively recognise
the
forms of prejudice an accused person can potentially suffer due to
slow grinding of the wheels of justice. To this end, they
sometimes
tailor the postponement in such a way that the harsh impact of the
delay is mitigated, or grant such relief as maybe
appropriate in the
circumstances of a particular case. However, where a court is faced
with an application for the striking off
the roll of a case due to
unreasonable delays, thereby invoking the provisions of s 342 A, such
a court is in my view, compelled
to give effect to the provisions of
the section. A holistic reading of the provisions of s 342 A leaves
me with the impression
that what is intended is first the
investigation into whether the delay is unreasonable, this as a
matter of course necessitates
an enquiry. The investigation includes
taking into account the factors listed in s 2. Those factors are not
limited to the prejudice
suffered by an accused person and also
include the impact an unreasonable delay may have in the
administration of justice, the
victim, and the States case. Even
though S 342 (3) does not specifically state that a ‘formal’
enquiry be held, it
does call at the very least for an enquiry, on
the basis of which a finding must be made. Such an enquiry must have
regard to the
full conspectus of the factors in s 3 (2). In the
absence of an enquiry, a court may find it difficult to assess
whether a delay
is unreasonable or how much systemic delay to
tolerate. (See Sanderson v Attorney-General
1998
(1) SACR ( 227
CC
)
at page 243 para 35). That can only be determined when there has been
an enquiry albeit informal, in which the conspectuses of
the factors
listed have been considered. This I say mindful of the fact that the
bulk of the criminal cases are heard before the
magistrate’s
court, and to insist on a formal enquiry is likely to be burdensome
to the already overstretched court rolls.
The finding should be
followed by a remedy the court considers appropriate, depending on
whether the accused person had already
pleaded or evidence led. It
seems to me that, once the provisions of s 342 are invoked, the
following three stages must be followed:
(1)
investigation of the cause of the delay in the finalisation of the

case, taking into account the listed factors;
(2)
making of a finding whether the delay is reasonable or unreasonable;
(3)
depending on the stage of the proceedings, the application of the
remedies
provided.”
[50]
I refer to these cases to demonstrate the seriousness with which
delays such as those where the docket
is not before court are to be
viewed by the courts.  In
Thompson
and Another v Minister of Police and Another
[26]
,
Eksteen
J , considered  a stated case to adjudicate on , inter alia, the
issue of
prescription.
The
plaintiffs in that case had been convicted and sentenced. They
appealed both the convictions and sentences successfully.
The
court found that the cause of action arose upon judgment of the court
allowing the appeal against the convictions of the appellants.
[51]
Eksteen J stated: ‘
It is generally accepted that in an
action based on malicious prosecution the plaintiffs cause of action
only arises after the successful
termination of the criminal
proceedings in the plaintiff’s favour, or where the Attorney-
General has declined to prosecute.
(Lemue v Zwartbooi,
13 S.C. 403
;
Bacon v Nettleton,
106 T.H. 138)
[52]
The court also relied on Moaki v Reckitt and Colman (Africa) Ltd and
Another
[27]
,
and
stated
:
“
The learned
Judge then goes on to refer to the basic elements of the actio
injuriarum: under which heading malicious proceedings
undoubtedly
fall.  Those elements may be summarised as a wrongful act
intentionally done and which constitutes an aggression
upon the
person, dignity or reputation of another...
(footnotes omitted).
In an action based on
malicious prosecution it has been held that no action will lie until
the criminal proceedings have terminated
in favour of the plaintiff.
This is so because one of the essential requisites of the action is
proof of a want of reasonable and
probable cause on the part of the
defendant, and
while
a prosecution
is
actually pending
its result cannot be allowed to be prejudged by the civil action.
(Lemue v Zwartbooi, supra at 407)
[28]
(my
underlining).
[53]
The action in this case was instituted on 12 February 2021. The
second defendant took no steps between that
time up to date of
conclusion of trial to reinstate the matter.  It is not in
dispute that a period of four years has lapsed
since the striking off
of the criminal case. A reinstatement of the matter is not the
plaintiff’s responsibility but
that of the State especially
where the prosecutor , as in this case, is the complainant.  The
State was at liberty to reinstate
the case even at the time a notice
of demand was delivered.   The evidence of the plaintiff
that he was directed to collect
his bail money and that his brother
did , was uncontroverted.  In my view, the fact that bail money
was collected the State
was no longer concerned about the
plaintiff’s  attendance at court and his obligation to
obey the bail conditions in
relation to the trial. As soon as the
matter was struck from the roll  it  was no longer pending
before the criminal
court .The fact that the matter may be reinstated
cannot be a defence to defeat the plaintiff’s claim
without facts demonstrating the will and effort to reinstate it.
The matter implicates the plaintiff’s
rights  entrenched in section 35 (3)(d) , amongst others, to
have his trial begin
and conclude without unreasonable delay.
At the trial the second defendant did not demonstrate any
probability that the reinstatement of the prosecution of the
plaintiff
would take place. The interests of justice demand that the
election of the State not to reinstate the criminal case for four
years
ought not to prejudice the plaintiff in his claim.
[54]
In the
Lemue
matter at pages 404 and 405 the court on appeal
stated:
“
After the
Solicitor – General had decided to prosecute for perjury, there
was nothing on record to show either that the Attorney-
General was
going to take up the prosecution, or that Lemue had taken any steps
for a private prosecution.”
[55]
At page 405 the court said : ‘
Though it is true that the
Attorney – General may take up the prosecution and that a
private prosecution may be brought ,
there is no statement and no
probability of any such action being taken.”
The sentiments
expressed in both paragraphs apply equally to the matter at hand.
[56]
I find that from the time of the institution of the claim up to the
conclusion of the civil trial there
was no criminal case pending
before a court against the plaintiff. I accordingly find that for the
reasons advanced the prosecution
had failed.  Plaintiff, on a
balance of probabilities, succeeded in discharging the onus resting
on him in this regard. The
second defendant is accordingly held
liable for the damages suffered by the plaintiff to his person and
dignity as a result of
malicious prosecution.
Quantum
[57]
I had regard to the plaintiff’s personal circumstances before
and after the arrest as stated
in the paragraphs dealing with his
evidence. I had regard to all the previous awards relied upon by both
counsel.  As indicated
in the Seymour judgment relied upon by
the second defendant, in the assessment of general damages the facts
of the particular case
must be looked at as a whole.  The
Minister of Police, as aforementioned settled the case based on
unlawful arrest and detention
with the plaintiff.  The plaintiff
attended court at least five times.  He was granted bail.  He
was vilified by
his community and labelled a prisoner. He stated that
he was dismissed from his employment. An amount of R500 000.00
is indeed
excessive hence Ms Mncotsho- Boya, suggested an amount of
R350 000.00 whereas Ms Qikila proposed an amount of R137 000.00.

There is no doubt that plaintiff suffered damages to his person and
dignity, however, the award must not be extravagant.   The

fact that the prosecution was instigated by the prosecutor as a
complainant who did not come to court to explain the reasons why
he
decided to lay the charge against the plaintiff is a matter that
calls for a higher award. I am satisfied that an award in the
amount
of R200 000.00 (Two Hundred Thousand) would serve as adequate
compensation. Plaintiff in his summons claimed interest
at the mora
rate payable 14 days from the date of judgment.  I intend to
make such an order.
Costs
[58]
There are no reasons that have been advanced to persuade the court to
deviate from the normal rule
that costs follow the result.
Order
[59]
I accordingly make the following Order:
1.
That the Second Defendant is liable to pay the plaintiff for
damages suffered as a result of malicious prosecution in the sum of

R200 000.00 (Two Hundred Thousand Rand).
2.
Interest at the mora rate payable 14 days from the date of
judgment to date of payment.
3.
Costs of suit.
_____________________
T.V NORMAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For the
PLAINTIFF
:
ADV
MNCOTSHO-BOYA
Instructed
by
:
DAVID
BOOI INC.
NO.
71 OWEN STREET
MTHATHA
REF:
S. Booi/Menyo/01
TEL:
072 508 6907 / 078 075 3961
For the
DEFENDANT
:
ADV
QIKILA
Instructed
by
:
STATE
ATTORNEY
BROADCAST
HOUSE
94
SISSON STREET
MTHATHA
REF:
648/21/A6S (Mrs Shumane)
TEL:
047 502 9900/08
EMAIL:
BShumane@justice.gov.za
/
NMvandaba@justice.gov.za
Matter heard on
: 26 August 2024; 27 August 2024; 28 August 2024 & 29 August 2024
Heads delivered
: 03 September 2024
Judgment reserved on
: 03 September 2024
Judgment
delivered on : 17 September 2024
[1]
Minister
for Justice & Constitutional Development v Moleko (131/07)
[2008] ZASCA 43
(31 March 2008).
[2]
Claude
Neon Lights (SA) Ltd v Daniel (113/75)
[1976] ZASCA 59
(19 August
1976); 1976 (4) SA 403 (A).
[3]
Matsose
v Minister of Police and Another (CIV APP FB 14/21; 814/2016)
[2023]
ZANWHC 117
;
[2023] 4 ALLSA 136
(NWM) (28 July 2023) para 88.
[4]
Beckenstrater
v Rottcherand Theunissen [1995] (1) SA  129 (A) at 136 A –
B.
[5]
National
Director of Public Prosecutions v Sijoyi Robert Mdhlovu (Case no.
194/ 2023)
[2023] ZASCA 85
(03 June 2024) at para 32.
[6]
Payi
v Minister of Police and Another (2063/2019) [2024] ZAECQBHC 14 (22
February 2024) at para 69.
[7]
President
of the Republic of South Africa v South African Rugby Union 2000 (1)
SA (CC) at para 61.
[8]
Minister
of Safety and Security v Slabbert (668/2009) [2009] ZASCA 163.
[9]
Nkogatse
v Minister of Police and Another [2023] ZAGPPHC 408 (2 June 2023).
[10]
Rautenbach
v Minister of Safety and Security and Others (48774/09) [2013]
ZAGPPHC 387 (20 November 2013).
[11]
Gumbi
v Minister of Police (07156/2016) [2022] ZAKZDHC 17 (1 April 2022).
[12]
Payi
v Minister of Police & Another (2063/2019) [2024] ZAECQBHC 14
(22 February 2024).
[13]
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 325 para
17.
[14]
Rudolf
v Minister of Safety and Security (380/2008)
[2009] ZASCA 39
(31
March 2009); The Quantum Yearbook by Robert Koch 2024 at page 39.
[15]
Minister of Justice and Constitutional Development and Others v
Moleko
[2008] ZASCA 43
;
2009 (2) SACR 585
(SCA) (31 March 2008) at
para 8.
[16]
Moleko,
supra, para 8 (a).
[17]
Prinsloo
v Newman 1975 (1) SA  481 (A) at 495 H.
[18]
Mazibuko
v Santam Insurance Co. LTD and Another
1982 (3) SA 125
(A) at 133.
[19]
See: Professor P J Schwikkard et al: Principles of Evidence: page
625 para 32.5.
[20]
Matsose
v Minister of Police and Another (CIV APP FB 14/21: 814/2016)
[2023]
ZANWHC 117
;
[2023] 4 ALL SA 136
(NWM) (28 July 2023) para 88.
[21]
Prof
JRL Milton, 3
rd
edition, Volume 2: South African Criminal Law and Procedure page
131.
[22]
Prof Snyman: Criminal Law 322.
[23]
Minister
of Safety and Security v Slabbert
(668/2009) [
2009] ZASCA 163
;
[2010] 2 ALL SA 474
(SCA) 30 November
2009 at paragraph 12.
[24]
Payi
v Minister of Police and Another
(2063/2019) [2024] ZAECQBHC 14 (22 February 2024).
[25]
S
v Ndibe (WCC) (unreported case No. 14/544/2010, 14-12-2012 at para 5
and 6.
[26]
Thompson and Another v Minister of Police and Another 1971 (1) SA
page 371 ( Eastern Cape Division )
[27]
Moaki v Reckitt and Colman (Africa) Ltd and Another, 1968 (3) S.A.
98 (A.D.).
[28]
Thompson page 375 paras A-C.