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REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: 6753/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE11/12/2024
SIGNATURE:

In the matter between:

B[...] M[...] 1ST PLAINTIFF

TYRE KHOSA 2ND PLAINTIFF

S[...] M[...] 3RD PLAINTIFF

TEMBANI BALOYI 4TH PLAINTIFF

KINGSLEY MKHARI 5TH PLAINTIFF

And

MINISTER OF POLICE 1ST DEFENDANT

NATIONAL COMMISSIONER OF POLICE 2ND DEFENDANT

PROVINCIAL COMMISSIONER OF POLICE 3RD DEFENDANT

NATIONAL DIRECTOR OF PUBLIC PROSECUTION 4TH DEFENDANT


JUDGEMENT

MASHAMBA AJ

INTRODUCTION

[1] This is the matter whereby the first, second, third, fourth and fifth plaintiff (“the
plaintiffs”), together instituted an action in this court against the Minister of Police ,
National Commissioner of Police, Provincial Commissioners of Police , and National
Director of Public Prosecution (“the defendants”). As set out in their Combined
Summons the plaintiffs, at the commencement of their action, claimed delictual
damages from the defendants based on the same cause of action s, namely, unlawful
arrest and detention, together with malicious prosecution against the fourth defendant .
This matter was consolidated by an order granted on the 19th April 2022.

[2] The matter was enrolled to be heard for both merits and quantum on the 02 nd
September 2024. The matter was rolled over to the 04th September 2024. The issues to
be decided was whether the arrest of the plaintiffs by members of the South African

Police Services and the subsequent detention there after was unlawful and, if so, the
determination of the plaintiff’s damages as a result thereof.

[3] The plaintiffs claim the amount of R 1 000 000.00 each, for unlawful arrest and
detention and further claim in the amount of R 1 000 000.00 each, for malicious
prosecution. Total amount claim ed is R 10 000 000.00 (Ten million) for both plaintiffs’
claims.

[4] The matter was heard for two days the 04 th-05th September 2024 and at the end
of the trial, the plaintiffs were directed to serve and file their heads of argument on or
before the 27th September 2024 and the defendants to serve their reply heads of
argument on or before the 21 October 2024. The plaintiffs’ heads of argument were
received in time but the defendants’ heads of argument were delayed but court
considered both heads of arguments when drafting this judgment.

THE COMMON CAUSE

[5] It is common cause or not disputed in this matter that: -

5.1 the arrests of the plaintiffs were effected without warrants;

5.2 the arrest was effected by members of the South African Police Services
and they acted within the course and scope of their employment with the first,
second and third defendant;

5.3 the plaintiffs were charged with murder which is a Schedule 1 Offence in
terms of the Criminal Procedure Act1 (hereinafter referred as “the Act”);


1 51 of 1977

5.4 The first plaintiff, B[...] M[...] was arrested on the 08 th March 2017, he was
detained in custody until his release on the 07th February 2018 after the fourth
defendant declined to prosecute;

5.5 The second plaintiff, Tyre Khosa was arrested on the 18 th February 2017,
he was detained in custody until his release on the 02 nd February 2018, the
charge against him was withdrawn;

5.6 The third plaintiff, S[...] M[...] was arrested on the 08 th March 201, he was
detained in custody until his release on the 18 th February 2018, the charge
against him was withdrawn;

5.7 The fourth plaintiff, Tembani Baloyi was arrested on the 15 th February
2017, he was detained in custody until his release on or about February 2018,
after the charge was withdrawn.

5.8 The fifth plaintiff, Kingsley Mkhari was arrested on the 17 th February 2017,
he was detained in custody until his release on the 02nd February 2024.

5.9 the defendant bore the duty to begin and the onus of proof to show, on a
balance of probabilities, that the arrest of the plaintiffs was lawful in terms of
section 40(1)(b) of the Act.

DEFENDANTS’ EVIDENCE

[6] The defendant s elected to rely on the oral evidence of a single witness only,
namely that of Captain Ngobeni (“the captain”). This witness is presently stationed at
Ritavi Police Station and has been a policeman for the past 33 years.

[7] The captain testified that there were two gang groups at Dan and Lusaka Village.
The first group was called Bokoharam and the second was called Sankina . The two

groups were fighting again st one another. On or about February 2017, the captain
arrived at work and he was informed that the two gang groups were fighting and that as
a result one man by the name of Fire was murdered. The captain further heard that Fire
was murdered by Sankina group.

[8] The captain later on, was further informed that the Bokoharam group had
revenged by murdering a man by the name of Freeman and also known as Figo.

[9] As a result of the complains from communit y members, the branch commander
at Ritavi Police Station, Lieutenant Smith (hereinafter referred as “the commander”)
prepared a list of suspects in connection with mur der case of Fire and Figo of the
respective gang groups. The captain further testified that the list contained the names of
both group members and the list was posted on the notice board of the Police Station
charge office.

[10] On the 18th March 2017, at around 3h00 am, the captain received a call from his
reliable source or informant, he was informed that one of the suspects by the name of
S[...] M[...], the third plaintiff was at his residential place. The captain immediately after
the call, drove to the Police Station and found Constable Mangulwana. The captain and
Constable Mangulwana went to the residential place of the third plaintiff at Rhulani
Village. On arrival at the third plaintiff’s place, the captain knocked and a certain m ale
opened the door. The captain produced his appointment certificate and explained that
he is a police officer. The captain indicated that he is looking for S[...] M[...] in relation to
the murder case. The third plaintiff confirmed his names as S[...] M[...], the captain
informed him of his constitutional rights. The third plaintiff was arrested and taken to the
police station. The captain confirmed that he had no warrant of arrest.

[11] On the 28 th March 2024, the captain arrested the first plaintiff, B[...] M[...], the
same way he arrested the third plaintiff. The captain was called by the informant and he
was informed that B[...] M[...] was at his residential place. The captain drove and met
him at his residential place, he confirmed that his name is B[...] M[...]. The captain

showed B[...] M[...] his appointment certificate, and that he is arrested in connection with
the murder case. The captain informed him of his constitutional rights and thereafter
detained him.

[12] The captain testified that he believes that the arrest of the second, fourth and fifth
was arrested as per the list of suspects which was on the notice board at the charge
office.

[13] In cross examination the captain confirmed that he was not part of officers who
compiled the list of suspects and that he did not consult or interview anyone who
compiled such list. The captain did not produce the list which he used to arrest the first
and third plaintiff.

PLAINTIFFS’ EVIDENCE

[14] In support of the plaintiff’s case, all five plaintiffs took a stand and gave their viva
voce evidence.

[15] The third plaintiff, S[...] M[...], testified that he was 16 years old when arrested on
the 08th March 2017 at round 9h00 evening. He further testified that after the arrest he
was taken to the grave yard where he was assaulted by the member s of the South
African Policies Services. The third plaintiff testified that the police officers indicated that
I should inform them where were Class and Mdu and where was the gun that they shot.
The police officer continued to assault him. He recognised Captain Ngobeni and
Constable Mangulwana and he does not know other police officers who were with them.

[16] The third plaintiff indicated that a s a result of his assault by the police, he had a
swollen face. They took him to the cell and the following day he appeared in court. He
made a bail application but it was denied because p olice officer opposed his bail
application and informed the court that his life will be at risk if he may be release on bail
and further that the community will not be safe if he may be released on bail.


[17] The third plaintiff further testified that he was taken to Mavambe Youth
Development Centre where he spent three months and later transferred to P olokwane
Youth Development Centre. He was detained with other inmate s and went through
sessions. He indicated that the living condition at Mavambe and Polokwane Youth
Development Centre was good. He was at Polokwane until his release on the 18 th
February 2018, after the prosecution declined to prosecute, the case against him was
withdrawn.

[18] He tried returning back to school in 2018 but he was told that due to his age he
cannot be admitted. He has a heart sore because his arrest affected his studies.

[19] The first plaintiff, B[...] M[...], was also called to give his viva voce evidence. He
testified that he was arrested on the 28th March 2017 by members of South African
police. He was taken to Ritavi police station. He was informed that he is charged of
murder of Figo. The unknown members of South Africa n Police took him to the garage
where police vans pour petrol which is closeby the police station and the police
assaulted him and asking him questions regarding the murder case. He fainted as a
result of the assault and he woke up in the police cells.

[20] The first plaintiff further testified that i n the police cells, he was raped by other
inmates. He requested the police to change his cells and they did. He applied for bail
but it was denied. He was detained at Ritavi police for few days and further detained in
Polokwane and even in modimolle prison , while he was awaiting trial. He testified that
life in prison was hard, as they were fighting against each other. He was arrested with
gang star or people arrested as gang star and they would gather in groups and fight
against each other.

[21] The first plaintiff further testified that he was released on the 07th February 2018
after being informed that charges against him were withdrawn.


[22] After the release the first plaintiff felt unsafe as he was called murderer and he
could not go to other nearby communities where they know him because he was known
as a person who murdered someone.

[23] In cross examination he indicated that he was arrested by Captain Ngobeni in
presence of other police officers.

[24] The fifth plaintiff, Kingsley Mkhari, an adult male person, 26 years old of age
and at the time of the arrest he was 18 years o ld, doing grade 10. On the 16 th February
2017 at around 16h30 , the fifth plaintiff returned home from school when informed by
his mother that members of South African Police were looking for him in relation to a
murder case.

[25] On the 19 th February 2017, the firth plaintiff together with his mother went to
Ritavi Police. He was informed by a man known as Mkhabini that he is arrested for a
murder case. The police officer known as Eric Mathebula charged him of murder , but
indicated that he was not informed about a list of suspects. He was taken to police cell
at Ritavi Police Station and the following day appeared in court. He applied for bail and
his bail was denied. He was taken to Polokwane prison where he also attended some
wellness programs.

[26] The fifth plaintiff indicated that his detention affected him, particula rly his school
progress was diminished , therefore, he lost faith of life. He denied being part of gang
stars but he heard about the two-gang group of Sankila and Bokoharam.

[27] On the 02 February 2018 , He was released from prison and informed that the
case of murder against him was withdrawn. After the release he did not return to school,
he got sick and was admitted to hospital.

[28] The fourth plaintiff, Temba Baloyi, an adult male and he was arreste d at the age
of 19 and currently 35 years old. He was doing grade 10. On the 15 th February 2017 he

was arrested by members of South African Police while he was coming from Ritavi
Clinic to his home , police officers arrived at his home. The police arrested him together
with his friend by the name Tholi and he was not informed about the reason of his
arrest. They were put at the police van and drove to Tzaneen where they were
assaulted. The police officers while assaulting them asked the where abouts of other s
and he did not know who were these persons the police were referring to. The fourth
plaintiff further testified that he was later taken to Ritavi Polise station and kept in the
police cell for two to three hours before a police officer known as Kabini ca me to charge
him. He was informed that he was arrested for a murder case. The following day he
appeared in court. He applied for a bail but the application for bail was denied.

[29] He was taken to Polokwane prison and he does not remember how long he was
detained in Polokwane and he was also detaine d at Modimolle Prison for three months.
He indicated that being in prison is not good. He testified that the arrest affected his
chances of proceeding with his school and he therefore, dropout from school.

[30] The second plaintiff, Tyre Khosa, an adult male, 29 th years old, the time he was
arrested he was 21 years old. Before his arrest he was working at Maizemeal Demo
company. He was arrested at his home on the 18th February 2017 by members of South
African Police. The police informed him that he is naughty and they slapped him. He
was hand cuffed and taken to the marked van. The police officers drove with him
around Lusaka village, and looking for other suspects. He was arrested at 16h00 and
arrived at Ritavi police station around 19h00. They did not say anything but just took off
the hand cuff and locked him in the police cell. He was given a paper to sign which had
his names and charges on it. He testified that he was assaulted.

[31] The second plaintiff further testified that the police officer took him to court the
following day and his case was reminded for seven days for the bail application. He
made bail application but it was denied. He was taken to Polokwa ne prison. When at
Polokwane prison, he remembered slapped by another police officer only because he
wore a hat and he was rebuked not to wear a hat. He stayed at Polokwane prison for

three week s and thereafter, transferred to Modimolle Prison. He testified that things
were not easy at the prison, there was no nice food. He indicated together with other
inmates they would be woken up early in the morning at around 3h00 and told to go to
bath.

[32] The second plaintiff further testified that th e case against him was reminded
several times and only to be released on the 02 February 2018. He was informed that
charges against him were withdrawn. His arrest affected him so much and he even lost
his employment because he was detained for long time.

PLAINTIFFS’ SUBMISSIONS

[33] The plaintiffs submitted that the suspicion rested on unreasonable grounds and
that the captain failed to apply the law in arresting the first and the third plaintiff without
a warrant . The captain did not himself compile the list of suspects; the alleged list of
suspects was compiled by Lieutenant Smith , the branch commander . The c aptain
proceeded to arrest w ithout interviewing Lieutenant Smith nor investigating the case.
The plaintiff further submitted that the purported list of suspects was not discovered
before the court and the plaintiff submitted that the aforementioned alleged list of
suspects never existed.

[34] The plaintiffs further submitted that in respect of the second, fourth and fifth
plaintiff, were arrested by unknown police officers who were not calle d to give their
evidence. The evidence of the c aptain could not assist to confirm whether the arresting
police officers who arrested the second, fourth and fifth plaintiff, without warrant of
arrest was justified in terms of the Act . The lack of arresting officers to adduce evidence
to prove the lawfulness of the arrest and detention of three plaintiffs left the defendant’s
defence void.


[35] The plaintiffs submitted that the defendants must be held liable for the entire
period of their detention and referred to the case of De Klerk v Minister of Police [2019]
ZACC 32.

[36] The plaintiffs’ counsel further submitted that the first plaintiff was detained for 311
days, second plaintiff was detained for 349 days, the third plaintiff was detained for 331
days, the fourth plaintiff was detained for 352 days and the fifth plaintiff was detained for
351 days. It was further submitted that the court sh ould award each day the amount of
R 37 500.00 and the plaintiff referred to several cases, among others reference was
made to the case of Mvu v Minister of Safety and Security and Others 2009 (2) SACR
291 (GSJ) where the court awarded the plaintiff the amo unt of R 30 000.00 of being
arrested and detained for a day. The reference was also made to the case of
Msongelwa v Minister of police (112/2012) [2020] ZAECMHC 10; 2020 (2) SACR 664
(ECM), where the plaintiff was detained for a period of 158 days and released without
being charged of any offence, the court awarded the amount of R 5 000 000.00 (five
million Rand).

[37] The plaintiffs s ubmitted that the amount of R 63 525 000.00 will be fair and
reasonable to compensate the plaintiffs.

DEFENDANTS’ SUBMISSIONS

[38] The defendants submitted that the arrest was done as per the list of suspects
and the arrest complied with jurisdictional facts appears in section 40 (1)(b) of the Act.
The defendants indicated that the c aptain arrested the first and third plaintiff as they
have appeared on the list of suspects compiled by the branch commander, same as the
second, fourth and fi fth plaintiff who were arrested and detained by members of South
African Police as they appeared on the referred list of suspects.

[39] The defendants referred to the matter of Minister of Safety and Security v
Magagula [2017] ZASCA 103, where it was held that a suspicion in its ordinary meaning

is a state of conjecture or surmise where proof is lacking. The court continued to say
suspicion arises at or near the starting point of an investigation of which the obtaining of
prima facie proof is at the end.

[40] The defendants submitted that the captain and other police officers who arrested
the plaintiffs had a reasonable suspicion to arrest since the plaintiff s had been
appearing on the list of suspects.

[41] On issued of quantum the defendants submitted that if the plaintiff may succeed
in proving their case of unlawful arrest and detention , the reasonable amount to
compensate each plaintiff should be the amount of R 100 000.00. The defendants
referred to the case of Minister of Safety and Security v Tyulu and indicates that in the
assessment of damages for unlawful arrest and detention, it is important to bear in mind
that the primary purpose is not to enrich the aggrieved party but to offer him or her
some much-needed solatium for his or her injured feelings.

[42] The defendants further referred to the case of JE Mahlangu and Another v
Minister of Police , 2021 ZACC 10, in this case the Constitutional Court awarded R
550 000.00 to the plaintiff who was tortured and detained for approximately eight
months. The defendants further referred to several cases where the amount of R
10 000.00 for the plaintiff who was detained for 16 days and R 12 000.00 for the plaintiff
who was detained for 18 days.

[43] The defendants submitted that the plaintiffs failed to prove their claim for
malicious prosecution against the fourth defendant, therefore, the claim should no t
succeed.

THE APPLICABLE LAW


[44] In terms of the Constitution of the Republic of South Africa 2 (“the constitution”), in
terms of section 12 of the constitution, everyone is conferred with the right to freedom
which includes among others, not to be deprived of freedom arbitrarily or without just
cause, not to be detained without trial nor to be tortured in any way.

[45] Subsection 40(1)(b) of the Act reads as follows: -

“A peace officer may, without warrant, arrest any person whom he reasonably
suspects of having committed an offence referred to in Schedule 1, other than
the offence of escaping from custody.”

[46] The jurisdictional facts for a subsection 40(1)(b) of the Act defence are that: -

(a) the arrestor must be a peace officer;

(b) the arrestor must entertain a suspicion;

(c) the suspicion must be that the suspect committed an offence referred to in
Schedule 1; and

(d) the suspicion must rest on reasonable grounds.3

[47] It is fairly trite that these grounds are interpreted objectively and must be of such
a nature that a reasonable person would have had a suspicion.4

[48] The arrestor’s grounds must be reasonable from an objective point of view.
When a peace officer has an initial suspicion, steps have to be taken to have it
confirmed in order to make it a reasonable suspicion before the peace officer arrests.

2 Act 108 of 1996
3 Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 467 (SCA).
4 R v Van Heerden 1958 (3) SA 150 (TPD). Duncan v Minister of Law and Order 1986 (2) SA 805 (AD) at
814D.

Authority for this proposition is to be found in the matter of Nkambule v Minister of Law
and Order.5

[49] In the matter of Olivier v Minister of Safety and Security and Another, 6 the court
held that:

“When deciding if an arrestor’s decision to arrest was reasonable, each case
must be decided on its own facts.”

[50] Further, the court stated,7 the following, namely: -

“This entails that the adjudicator of facts should look at the prevailing
circumstances at the time when the arrest was made and ask himself the
question, was the arrest of the plaintiff in the circumstances of the case, having
regard to flight risk, perma nence of employer, and then residence, co -operation
on the part of the plaintiff, his standing in the community or amongst his peers,
the strength or the weakness of the case and such other factors which the court
may find relevant, unavoidable, justified or the only reasonable means to obtain
the objectives of the police investigation. The interests of justice may also be a
factor. Once the court has considered these and such other factors, which in the
court’s view may have a bearing on the question, the re should be no reason why
the court should not exercise its discretion in favour of the liberty of the individual.
Arrest should after all be the last resort.”

[51] The discretion to arrest must be properly exercised and authority for this
proposition is once again found in the matter of Duncan v Minister of Law and Order 8
(supra). The test for the legality of the exercise of discretion to arrest is objective. The
exercise of public power by the executive and other functionaries should not be

5 1993 (1) SACR 434 (TPD); Heimstra (supra) at 5-8.
6 2009 (3) SA 434 (WLD).
7 at 445D to F.
8 at 818H-I.

arbitrary. Decisions must be rationally related for the purpose for which the power was
given, otherwise they are, in effect, arbitrary and inconsistent with this requirement. The
question of whether a decision is rationally related to the purpose for which the power
was given, calls for an objective enquiry.9

[52] In objectively determining when an arrestor has acted arbitrarily the court should
consider whether or not he (1) applied his mind to the matter or exercised his discretion
at all; and/or (2) disregarded the express provisions of the statute. The authority for this
has long been held.10

[53] The onus rests upon the arrestor to prove that the arrest was objectively lawful.11

[54] If the arrest is unlawful, it follows that the subsequent detenti on must also be
unlawful.12

[55] In the interesting decision of the Supreme Court of Appeal in the matter of
Minister of Police and Another v Erasmus 13 is illustrative of the more recent
developments in our law pertaining to unlawful arrest and detention. the Court held: -

“When the police wrongfully detain a person, they may also be liable for the
post-hearing detention of that person. The cases show that such liability will lie
where there is proof on a balance of probability that, (a) the culpable and
unlawful conduct of the police, and (b) was the factual and legal cause of the
post-hearing detention. In Woji v Minister of Police [2014] ZASCA 108; 2015 (1)
SACR 409 (SCA), the culpable conduct of the investigating officer consisting of
giving false evidence during the bail application caused the refusal of bail and
resultant deprivation of liberty. Similarly, in Minister of Safety and Security v

9 Pharmaceutical Manufacturers Association of SA and Another v Imray Ex Parte President of the republic
of South Africa and Others 2000 (2) SA 678 (CC) para 85-86, at page 708D-F.
10 Shidiack v Union Government (Minister of the Interior) 1912 (AD) 642 at 651-652.
11 Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (AD) at 589 E -F, Mabasa
v Felix 1981 (3) SA 865 (AD) and Minister of Law and Order v Matshoba 1990 (1) SA 280 (AD) at 284.
12 Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) at 600G.
13 (366/2021) [2022] ZASCA 57 (22 April 2022). Para 12

Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA), liability of the police
for post-hearing detention was based on the fact that the police culpably failed to
inform the prosecutor that the witness statements implicating the respondent had
been obtained under duress and were subsequently recanted and that
consequently there was no credible evidence linking the respondent to the crime.
In De Klerk v Minister of Police [2019] ZACC 32; 2020 (1) SACR (CC) paras 58
and 76, the decisive consideration in both the judgments that held in favour of the
appellant was that the investigating officer knew that the appellant would appear
in a 'reception court' where the matter would be remanded without the
consideration of bail. Finally, in Mahlangu and Another v Minister of Police [2021]
ZACC 10; 2021 (2) SACR 595 (CC), the investigating officer deliberately
supressed the fact that a confession which constituted the only evidence against
the appellants, had been extracted by torture and thus caused their continued
detention.”

[56] Of course the locus classicus in respect of the principles applicable to the
delictual liability of the Minister of Police for detention is the Constitutional Court
decision in the matter of Mahlangu and Another v Minister of Police.14

[57] Firstly, the Court cited, with approval, the matter of Relyant Trading (Pty) LTD v
Shongwe15 where the Supreme Court of Appeal held, inter alia, the following: -

“….to succeed in an action based on wrongful arrest the plaintiff must show that
the defendant himself, or someone acting as his agent or employee deprived him
of his liberty”.

[58] Importantly, the Constitutional Court also cited with approval the matters of Woji
(supra) and Zealand v Minister of Justice and Constitutional Development and Another16
noting that Woji had followed Zealand in holding that the Minister of Police was liable for

14 Supra [2021] ZACC 10.
15 [2007] 1 All SA 375 (SCA) at paragraph 6; at paragraph [29] of Mahlangu (supra).
16 2008 (2) SACR 1 (CC).

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. Following thereon, the C onstitutional Court noted that this reasoning “….
effectively means that it is immaterial whether the unlawful conduct of the police is
exerted directly or through the prosecutor”.17

[59] Finally, the Constitutional Court cited, 18 once again with approval , the matter of
Tyokwana (supra)19 where it was held: -

“(T)he duty of a policeman, who has arrested a person for the purpose of having
him or her prosecuted, is to give a fair and honest statement of the relevant facts
to the prosecutor, leaving it to the latter to decide whether to prosecute or not.”

[60] In the matter of Minister of Safety and Security v Tyulu20

“In the assessment of damages for unlawful arrest and detention, it is important
to bear in mind that the primary purpose is not to enrich the aggrieved party but
to offer him or her some much -needed solatium for his or her injured feelings. It
is therefore crucial that serious attempts be made to ensure that the damages
awarded are commensurate with the injury inflicted. However, our courts should
be astute to ensure that the awards they make for such infractions reflect the
importance of the right to personal liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our law. I readily concede
that it is impossible to determine an award of damages for this kind of injuria with
any kind of mathematical accuracy. Although it is always helpful to have regard
to awards made in previous cases to serve as a guide, such an approach if
slavishly followed can prove to be treacherous. The correct approach is to have

17 At para [33].
18 At para 41.
19 At para 40.
20 2008 JDRJ 582 (E) at para 26

regard to all the facts of the particular case and to determine the quantum of
damages on such facts…”

[61] In order to prove the claim for malicious prosecution, the req uirements are well-
articulated in the case between Minister of Safety and Security v Lincoln 21, in order to
succeed with a malicious prosecution claim, the plaintiff must allege and prove tha t; (i)
the defendants set the law in motion (instituted or instigated the proceedings); (ii) the
defendant acted without reasonable and probable cause; (iii) the defendant acted with
malice (or animo inuriarum ); and (iv) that the prosecution failed. In this instance, the
plaintiff bears the onus of proof to establish each, as alluded.

COURT’S FINDINGS

[62] One of the common issues between parties is that the plaintiffs were arrested as
a result of the similar charge s of murder. The plaintiffs were arrested in different
locations and some by unknown police officers, who did not adduce evidence before
this court.

[63] The defendants called only one witness, the captain , who arrested only two
suspects, the first and third plaintiff. According to the captain, he arrested the first and
third plaintiff because their names were on the alleged list of suspects which was posted
in the charge office notice board. The captain evidence was that he does not know how
the branch commander prepared the list of suspects and further that he did not
interview the author of the alleged list of suspects

[64] In assessing the captain’s testimony, the court has to examine whether the arrest
without a warrant was justifiable at the circumstances. As the law precisely mentioned
that the only moment the police officer or the peace officer can arrest without a warrant
of arrest should be in terms of subsection 40 (1 ) (b) of the Act, the police officer should
have a reasonable suspicion that a suspect committed an offence referred in Schedule

21 (682/19) [2020] 3 All SA 341 (SCA); 2020 (2) SACR 262 (SCA) (5 June 2020).

1 of the Act. One may pose a question whether the names in the alleged list of suspects
justified an arrest without a warrant, specially, when the list was prepared by a different
person who did not personally arrest the suspects and did not disclose how the list was
prepared.

[65] For the defendants to prove that the arrest without warrant pass the jurisdictional
facts, the defendants should comply with subsection 40 (1)(b) of the Act . The branch
commander who prepared the list of suspects should have given his evidence and
prove how did he prepare such list of suspects, in order to assess whether the suspicion
was objective to warrant an arrest without a warrant . The court is of the view that since
the branch commander has not been called to give his evidence before this court and
the alleged list of suspects was not discovered , such evidence remain s hearsay
evidence in nature and unless corroborated, such evidence remains inadmissible.

[66] The reasonable suspicion cannot be created by a name being on the list of
suspects, and arresting the plaintiffs based on the unfounded and undiscovered list of
suspects is to be deemed unreasonable and in contravention of the plaintiffs’
constitutional right s to freedom as conferred b y section 12 of the Constitution . The
captain did not do enough to persuade this court in believing that the arrest without a
warrant was justified. Even if one may suggest that the list of suspects was posted on
the notice board but it was not proven that all names of the plaintiffs were in the alleged
list of suspects, especially, for the second, fourth and fifth plaintiff who were arrested by
the unknown police officers who did not adduce their evidence.

[67] When it comes to the second, fourth and fifth plaintiff, no evidence adduced to
prove that the arrest without a warrant was fair and reasonable , as such the plaintiff’s
version becomes the only version to be considered . The defendant s did not give the
court any existing information that led to a rrest the plaintiffs without warrant of arrest,
even the alleged list of suspects was not discovered before this court.


[68] The court finds that the arrest and detention of the plaintiffs without a warrant of
arrest was unreasonable and unlawful. The post hearing detention was as a result of
the unlawful arrest and detention against the plaintiffs as a result of the in correct
information the police officers used to oppose the plaintiff’s bail application. If the police
would have thorough ly investigated the case of murder , the plaintiff s would not have
been arrested and detained for such lengthy period.

[69] The first, second and third defendant should be held liable for the unlawful arrest
and detention of the plaintiffs. The plaintiffs did not in their evidence prove the claim for
malicious prosecution against the fourth defendant, therefore, the claim for malicious
prosecution should not succeed . The plaintif fs have a duty to prove their claim for
malicious prosecution against the fourth defendant but in their entire evidence they
failed to indicate why the fourth defendant should be held liable for malicious
prosecution.

[70] When considering the quantum of damages as a result of the unlawful arrest and
detention, the court noted the plaintiffs’ circumstances , which w ere well-articulated in
paragraph 14 to 32 supra, this court will not repeat the same. The court considered the
submissions made by the defendant’s counsel who indicated that the plaintiffs did not
put to the captain during the ir cross examination the claim of assault against the
members of the South African P olice Services and the claim for assault was also not
pleaded. The court is of the view that the plaintiffs’ claim for assault should not be
considered as such was not part of their claim against the defendants.

[71] This court considered the case laws referred by the plaintiffs in support of their
claim and reasonable compensation for their damages. The defendant’s counsel also
referred to several case law s with regard to reasonable amount the court should
consider when assessing the fair compensation for the plaintiffs’ unlawful arrest and
detention. The plaintiff was arrested for approximately 11 months plus, and the period of
detention is not in dispute.


[72] The court did not consider the submissions made by the plaintiffs’ Counsel that
the plaintiffs should be compensated the amount of R 63 525 000.00 for unlawful arrest
and detention, as this amount was not in line with the amount claimed in the particulars
of claim and the plaintiff s did not request to amend their p articulars of claim until at the
end of th is trial. The amount was mentioned only in the heads of argument submitted.
The defendants raised their objection in their heads of argument and the court is of the
view that such unjustifiable amount should be rejected.

[73] The court in exercising his discretion to award a reasonable compensation for the
plaintiffs’ unlawful arrest and detention, comprehends that compensation is not made to
enrich the plaintiff s but to compensate them for the damages they have suffered. The
court finds that the reasonable amount to compensate for each of the plaintiff is in the
amount of R 1 000 000.00 (One Million Rand) for unlawful arrest and detention, which
the total amount is equal to R 5 000 000.00 (Five Million Rand) for five plaintiffs.

COSTS

[74] What stands over is the question of costs. The general rule is that costs must
follow the result. Nothing emerges from this matter warranting a deviation from this
principle. The plaintiffs succeeded in proving their case for unlawful arrest and detention
against the defendants , although, the plaintiff did not prove the ir claim for malicious
prosecution against the fourth defendant, this court is of the view that the first, s econd
and third defendant should bear cost in this matter. The court considered the efforts the
plaintiffs have taken and resources utili sed in order to pursue their claim against the
defendants.

[75] In the result, the court makes the following orders;

1. The first, second and third defendant are ordered to pay an amount of R
1 000 000.00 (One Million Rand) to each plaintiff, for unlawful arrest and
detention, jointly and severally the one paying the other to be absolved. The total
.... '"
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amount to be paid to all five (5) plaintiffs is equal to R 5 000 000.00 (Five Million
Rand);

2. The first, second and third defendant shall be liable to pay interest on the
aforesaid amounts tempore morae at the rate of 11.25 % per annum from the
date of judgment to date of the payment;

3. The first, second and third defendant shall pay the plaintiffs’ taxed or agreed
party and party costs, including costs of a counsel scale B,

3. The claim for malicious prosecution against the fourth defendant is dismissed
with no order as to cost.



E MASHAMBA E
THE ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION


APPEARANCES

FOR THE PLAINTIFF: ADV K MOKWENA
INSTRUCTED BY: T MAMITWA INC
EMAIL: tiyisela@tmamitwaattorneys.co.za

polokwane@vukeyainc.co.za

FOR THE DEFENDANTS: MR T.A MASETE
INSTRUCTED BY: THE STATE ATTORNEYS


EMAIL: TMasete@justice.gov.za
DATE OF HEARING: 04-05 SEPTEMBER 2024
PLAINTIFFS’ HEADS OF ARGUMENT: 27TH SEPTEMBER 2024
DEFENDANTS’ HEADS OF ARGUMENT: 12 NOVEMBER 2024
DATE OF JUDGEMENT: 11th DECEMBER 2024