Mdluli v MEC for the Safety and Security and Others (5006/17P) [2024] ZAKZPHC 126 (18 October 2024)

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[2024] ZAKZPHC 126
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Mdluli v MEC for the Safety and Security and Others (5006/17P) [2024] ZAKZPHC 126 (18 October 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICAN
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 5006/17P
In
the matter between:
NKOSIKANDABA
LAWRENCE MDLULI
Plaintiff
and
MEC
FOR THE SAFETY AND SECURITY
First Defendant
SERGEANT
MABANGA
Second Defendant
CONSTABLE
KHWELA
Third Defendant
ORDER
The
following order is made:
1.
The plaintiff's claim for unlawful arrest and detention (claim1); and
malicious prosecution
(claim 3) against the defendants is dismissed;
2.
The defendants are found 100% liable for the plaintiff's proved or
agreed costs in respect
of assault, claim 2; and
3.
The defendants are ordered to pay the plaintiff's costs of suit
including the costs of counsel
on scale B.
JUDGMENT
Chithi
AJ:
Introduction
[1]
This is a claim for delictual damages in which the plaintiff has
instituted three separate claims
against the defendants, namely for
unlawful arrest and detention (claim 1), assault (claim 2), and
malicious prosecution (claim
3). The first defendant is cited as the
MEC for Safety and Security in the title of all the pleadings,
notices and in the particulars
of claim. However, on the combined
summons the sheriff is called upon to inform the Minister of Safety
and Security (which has
now been renamed the Minister of Police) that
the plaintiff has instituted this action against him and the two
other defendants.
The second and third defendants are members of the
South African Police Service ('SAPS'), who were employed by the
Minister of
Safety and Security at the relevant time. As soon as I
noticed this discrepancy during the preparation of my judgment, I
called
upon the parties to address me on the issue of whether this
discrepancy would have any effect on the judgment I would give if I

was inclined to grant judgment against the first defendant. The
plaintiffs further heads of argument on this issue were delivered
on
25 September 2024 while the defendants' heads of argument were
delivered on 26 September 2024. I will return to the parties'

submissions on this issue latter in the judgment.
[2]
The reason why I asked for further submissions from the parties is
that policing has always been
a national competency and has never
been a provincial competency. In addition, there has never been a
provincial portfolio known
as MEC for Safety and Security instead
there is a provincial portfolio known as MEC for Transport, Community
Safety and Liaison.
It seems that no one ever picked up this issue
until I started preparing judgment or at least the state attorney did
not take any
issue with it. However, it has implications on whether
judgment has been granted against a correct party.
[3]
The plaintiff sues the first defendant based on the principle of
vicarious liability. However,
the plaintiff in his particulars of
claim prays for judgment against the defendants jointly and severally
with each defendant to
pay the other to be absolved, while he did not
sue the second and third defendants in the alternative in their
personal capacities
if I do not find the first defendant liable.
Based on this omission, it seems that the citation of the second and
third defendants
was unnecessary.
[4]
In respect claim 1 the plaintiff claims R500 000.00, in respect of
claim 2, R2 560 000.00 and
in respect of claim 3, R200 000.00. The
plaintiff’s claims arise from his arrest on 8 August 2015 and
his subsequent detention
at Umhlali Police Station before his
confinement at Alberlito Hospital. The circumstances relating to how
each of these claims
arise will become clear during the summary of
the evidence.
[5]
The issue of liability was separated from the issue of quantum in
terms of Uniform rule 33(4)
with the issue of quantum standing over
for a later determination. Therefore, this case is to be decided only
on the issue of liability.
In this case, the defendants have admitted
the arrest and detention of the plaintiff. Consequently, the
defendants bore the
onus
to justify the arrest and detention
of the plaintiff. In terms of Uniform rule 39(13), where the
onus
of adducing evidence on one or more of the issues, is on the
plaintiff and that of adducing evidence on any other issue is on the

defendant, the plaintiff shall first call his evidence on any issues
in respect of which the
onus
is upon him, and may then close
his case. However, at the commencement of the proceedings, Mr
Sibeko
who appeared for the defendants advised me that the parties had
agreed in their Uniform rule 37 conference that the defendant would

lead its evidence first. I allowed the defendants to call their
evidence first as agreed to by the parties.
[6]
Before leading evidence, the defendant abandoned its special plea in
relation to the plaintiff's
failure to comply with the provisions of
the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002.
The
issues
[7]
The court was called upon to determine broadly the following issues:
(a)
whether the arrest of the plaintiff on 8 August 2015 and his
subsequent detention was wrongful
and unlawful (claim 1).
(b)
whether the plaintiff was wrongfully and unlawfully assaulted by the
members of the SAPS (claim
2).
(c)
whether the plaintiff's prosecution was malicious (claim 3).
Common
cause facts
[8]
The following are common cause facts between the plaintiff and the
defendants:
(a)
The plaintiff was arrested at Shakashead on 8 August 2015 without a
warrant of arrest.
(b)
The plaintiff was detained at Umhlali Police Station
(c)
The plaintiff was admitted at Alberlito Hospital on 9 August 2015.
Bundle
of documents
[9]
At the outset of the trial, the parties handed in bundles of
documents to be used during the evidence
of the witnesses. Those
bundles are the pleadings bundle comprising the pleadings, the rule
37 bundle comprising the rule 37 minutes,
the liability bundle
comprising the contents of the docket, a copy of the plaintiffs
identity document and his affidavit and the
bundle of hospital
records comprising the plaintiff's hospital records.
The
evidence generally
[10]
To justify the arrest of the plaintiff and to disprove the
plaintiff's claim for assault and malicious prosecution, the

defendant called two witnesses namely Sergeant Petrus Mfakazeli
Mabanga and Sergeant Mzwandile Sihle Khwela. On the other hand,
the
plaintiff was the sole witness to testify in his case.
The
defendant's evidence
[11]
The first witness for the defendant was Sergeant Petrus Mfakazeli
Mabanga who testified that he was
a sergeant employed by the SAPS
stationed at Umhlali Police Station. He testified that he met the
plaintiff for the first time
on 8 August 2015. This was when he and
his crew member, Sergeant Khwela, were performing patrols and crime
prevention duties at
Umhlali. They received a complaint round about
20h00 through a two-way radio from Umhlali Police Station of a
kidnapping in the
vicinity Mirriam's Tavern at Shakashead in Umhlali.
They rushed to the scene and upon their arrival at the scene they met
an African
male person who reported his girlfriend to have been
kidnapped by two assailants who were driving a silver Suzuki.
According to
the statement in the liability bundle, this African male
was Mr Senzo Cedric Langa. In addition, Mr Langa showed them spent
cartridges,
which were scattered on the ground from the shots, which
were fired by the assailants. As Mr Langa reported the incident the
motor
vehicle concerned was still within eyeshot. They pursued this
vehicle and flagged it down to stop by turning on their blue lights,

sounding the siren and using a loud hailer but the motor vehicle
failed to stop. Instead, what happened is that shots were fired
from
this motor vehicle towards them. They immediately called for a
back-up via the two-way radio.
[12]
Fortunately, for them the back-up members of the SAPS quickly
responded as they were apparently not far from
the scene. The back-up
members comprised members of the crime prevention unit, dog unit and
the task team. The back-up members
were driving an SAPS marked Toyota
Quantum ('a kombi') fitted with blue lights and a siren who joined in
the pursuit of the silver
Suzuki. The shots which were fired towards
the police emanated from the back of the Suzuki and were fired
through an open window.
Sergeant Mabanga did not recall how many
shots were fired towards them but he testified that it was several
shots. In retaliation
they themselves as the police returned fire and
struck a tyre of the Suzuki as a result it slowed down and eventually
came to a
complete stop.
[13]
They approached the Suzuki and established that there were two
occupants in the motor vehicle who upon being
instructed to alight
from the motor vehicle refused to do so. However, when they realised
that several police were approaching
the vehicle they lifted their
hands while still seated in the vehicle. The police advanced towards
the vehicle and introduced themselves
as the police. They opened the
driver's door and the rear passenger door of the motor vehicle. A
group of members of the police
pulled the plaintiff out of the motor
vehicle. The plaintiff resisted and held unto the steering wheel.
Another group of members
pulled the passenger out of the vehicle who
was seated at the back and came to be known as Mr Langelihle Ngiba.
After the members
had pulled the plaintiff and Mr Ngiba out of the
vehicle, they handcuffed them. When the plaintiff was pulled out of
the vehicle,
he fell on his stomach. The plaintiff and Mr Ngiba were
heavily intoxicated.
[14]
After they had restrained the plaintiff and Mr Ngiba, they proceeded
to search the motor vehicle and found
a 9mm firearm with an empty
magazine and liquor lying around in the motor vehicle. When Sergeant
Mabanga enquired from the plaintiff
whose firearm it was, the
plaintiff confirmed that it was licensed to him. Sergeant Mabanga
explained to the plaintiff his constitutional
rights, and placed him
under arrest for attempted murder. The plaintiff and Mr Ngiba were
each taken to the two separate police
vehicles and transported to
Umhlali Police Station.
[15]
During the informal interview, which Sergeant Mabanga had with the
plaintiff, the plaintiff informed him
that he was not feeling well in
his stomach and that he had a scheduled appointment to see a doctor
at Alberlito Hospital. An ambulance
was called and the plaintiff was
taken to Alberlito Hospital. Sergeant Mabanga testified that he never
assaulted the plaintiff
nor was the plaintiff ever assaulted in his
presence. In addition, Sergeant Mabanga stated that the plaintiff did
not sustain any
injuries at the scene or at the police station.
Sergeant Mabanga confirmed that none of the police officers at the
scene sustained
any injuries. However, their motor vehicle was
damaged by the bullet shots. Sergeant Mabanga stated that while it
was already dark
at the time they attended to the complaint, the
street lights were on. In addition, a further source of light was the
light from
the police vehicles. He further stated that they collected
the cartridge cases after they apprehended the plaintiff and Mr
Ngiba.
[16]
Under cross-examination, Sergeant Mabanga confirmed that he was
senior to Sergeant Khwela and so according
to the police protocol
Sergeant Khwela had to follow his instructions. Sergeant Mabanga
further confirmed that when a service pistol
had been discharged, a
duty officer had to be notified. He stated that he could not identify
who among the police officers who
came at the scene fired shots, as
there were many police officers who came to the scene. He also did
not know whether Sergeant
Khwela fired shots towards the plaintiffs
motor vehicle. However, he himself did not fire any shots towards the
plaintiffs vehicle.
Sergeant Mabanga stated that he did know how many
shots emanated from the plaintiffs motor vehicle but stated that they
came in
succession. When it was put to him that the plaintiffs
magazine was full, Sergeant Mabanga denied that and stressed that the
magazine
had no bullets. Sergeant Mabanga denied that the plaintiff
could possibly have thought that he was being high jacked at the time

he was being flagged to stop. Sergeant Mabanga specifically denied
that in the pursuit of the plaintiff and Mr Ngiba the police
vehicle,
which was immediately behind the plaintiffs motor was the kombi and
that kombi was not marked with the SAPS emblem. Sergeant
Mabanga
stressed that during the pursuit of the plaintiffs motor vehicle the
police vehicle, which was immediately behind the plaintiffs
motor
vehicle was the police van and not the kombi and both vehicles were
marked with an SAPS emblem.
[17]
When it was put to him that the plaintiff and Mr Ngiba, who was
seated on the front passenger, came out of
the motor vehicle on their
own and raised their hands, Sergeant Mabanga denied this as untrue.
Sergeant Mabanga initially denied
that he took the plaintiff home
after his arrest for the plaintiff to fetch his medical aid card and
thereafter took him to hospital.
However, when counsel for the
plaintiff persisted that Sergeant Mabanga had in fact taken the
plaintiff home after his arrest and
thereafter to hospital and, he
changed to say that he did not remember doing that. Sergeant Mabanga
confirmed though that he had
heard that the plaintiff was injured but
he did not know where the plaintiff got the injuries. He stated that
as far as he was
concerned the plaintiff had already mentioned to him
at the time of arrest that he had a scheduled appointment with a
doctor. Sergeant
Mabanga confirmed that the duty officer came to the
scene and all the stakeholders, including photographers. Sergeant
Mabanga testified
that they recovered the firearm at the back of the
motor vehicle on the floor. Sergeant Mabanga denied that the arrest
of the plaintiff
was a case of mistaken identity. He pointed out that
he was not surprised that he did not find the person who was
allegedly kidnapped
in the motor vehicle as he had learnt that she
had managed to escape and took a different route. Sergeant Mabanga
agreed that he
did not record it in his police statement that they
were following a kidnapping case and that the plaintiff and Mr Ngiba
resisted
arrest. In addition, he agreed that he did not run a prima
residue test on the plaintiff. Sergeant Mabanga stated that he did
not
know why Sergeant Khwela charged Mr Ngiba with possession of an
unlicensed firearm. When Sergeant Mabanga was confronted about why
he
said in his statement that two shots were fired towards them he
testified that this was an oversight on his part. It was not
only two
shots, which were fired. When it was put to Sergeant Mabanga whether
he received his information about the alleged kidnapping
and the
details of the plaintiff's motor vehicle from an informer or the
complainant he testified that he received the information
from the
complainant. He stated that the way he wrote his statement may not
have conveyed what he wanted to say.
[18]
The next witness for the defendants was Sergeant Mzwandile Sihle
Khwela. The evidence of Sergeant Khwela
was not materially different
to that of Sergeant Mabanga in relation to the sequence of events,
which resulted in the arrest of
the plaintiff. So, it would be
unnecessary to repeat Sergeant Khwela's evidence to the extent that
it is like Sergeant Mabanga's
evidence. Sergeant Khwela testified
that he was employed as a member of the SAPS stationed at Umhlali
Police Station. At the time
of the incident, on 8 August 2015, he
held the rank of a constable but had since been promoted to a rank of
a sergeant. Sergeant
Khwela confirmed that at the time they received
the complaint, which resulted in the arrest of the plaintiff, they
were performing
patrols and crime prevention duties at Umhlali.
Sergeant Khwela stated that he was a crew of Sergeant Mabanga at the
time. Sergeant
Khwela testified that after they got all the
information from the complainant, including the description of the
motor vehicle and
the direction it took, they drove off in the
direction the motor vehicle allegedly took. As they entered
Shakashead they spotted
the motor vehicle fitting the description
they were given by the complainant driving at a high speed. It was
Sergeant Mabanga,
who returned fire when the plaintiff and Mr Ngiba
attacked them. The shot Sergeant Mabanga fired landed on the tyre of
the plaintiff's
vehicle. In addition, Sergeant Khwela stated that
there were no shots, which were fired from the back-up police
vehicle. Sergeant
Khwela testified that they used minimum force when
they realised that the plaintiff and Mr Ngiba were resisting arrest.
He stated
that when he asked Mr Ngiba about the firearm, which was
found in Mr Ngiba's proximity, Mr Ngiba stated that the firearm
belonged
to the plaintiff. He then arrested Mr Ngiba for possession
of an unlicensed firearm. Sergeant Khwela denied ever having had
anything
to do with the arrest of the plaintiff. Sergeant Khwela
testified that at the police station after the plaintiff had been
arrested,
the plaintiff told them that he worked for Transnet and
might lose his job if he was detained. At this time, the plaintiff
also
mentioned that he had a scheduled appointment with the doctor
the next day.
[19]
Under cross-examination Sergeant Khwela noted the proposition that
the plaintiff would persist with his version
as set out in his
affidavit in the index to the liability bundle. Sergeant Khwela
denied as untrue the following propositions which
were put to him as
part of the plaintiff's version as contained in the plaintiffs
affidavit that:
(a)
Mr Ngiba was seated in the front passenger seat of the plaintiffs
motor vehicle.
(b)
There was no electric power at Shakashead on the night of the
incident and that the streets were
dark.
(c)
The plaintiff could have had any reason to possibly think that he was
under attack.
(d)
The plaintiff activated his emergency warning lights.
(e)
The plaintiff stopped his vehicle on his own with him and Mr Ngiba
coming out of the vehicle with
their hands raised.
(f)
The magazine of the plaintiff's firearm magazine was full.
(g)
The plaintiffs firearm was on the driver's seat.
(h)
He ever came close to the plaintiff except when he took the plaintiff
to the police vehicle.
[20]
Sergeant Khwela persisted with his version. He stressed that the
plaintiff was never assaulted in anyway
whatsoever and he stated that
he did not know why the plaintiff was hospitalized. All he knew was
that upon his arrest the plaintiff
had informed them that he had a
scheduled appointment with the doctor the next day. When Sergeant
Khwela was confronted about Sergeant
Mabanga having testified that
they were shown the plaintiff's vehicle drive away, he pointed out
that Sergeant Mabanga was giving
his version. Further, Sergeant
Khwela testified that he did not know why Sergeant Mabanga denied
ever firing shots towards the
plaintiff's vehicle. Sergeant Khwela
confirmed that cartridge cases were collected from the scene by the
relevant experts and he
was surprised that Sergeant Mabanga had
testified that they themselves had stopped and collected the
cartridge cases as that was
not consistent with the SAPS protocols.
Sergeant Khwela stated that he did not know how it came about that in
the defendant's plea
he was identified as being the police officer
who returned fire. Sergeant Khwela stated that he did not know why
the main charges
against the plaintiff was not robbery and kidnapping
and the person who was best placed to answer that question was the
investigation
officer. He further emphasised that while they had
initially pursued the plaintiff and Mr Ngiba for robbery and
kidnapping, they
ultimately arrested them for shooting at them as the
police. He stated that the reason why the person who was allegedly
kidnapped
was not in the plaintiff's vehicle was because she had
managed to escape and run into the forest. Sergeant Khwela stressed
that
he made an error in his statement by saying that the firearm was
on the back seat instead of saying it was at the back of the vehicle

on the floor. In re-examination, Sergeant Khwela further stressed
that he did not arrest the plaintiff but Sergeant Mabanga arrested

the plaintiff. Sergeant Khwela emphasised that he was not the
investigating officer of the case. This concluded the case for the

defendants.
The
plaintiff's evidence
[21]
Mr Nkosinkandaba Lawrence Mdluli, the plaintiff, testified in his
case as a sole witness. He testified that
he was 51 years of age and
in 2015, he was 42 years of age. He was a senior service driver,
employed with Transnet. At the time
of the incident, on 8 August
2015, he had been employed at Transnet for 2 years. He lived in
Shakashead since 2002. When he entered
Shakashead, he had to drive
past Mirriam's Tavern. He took two minutes to drive from Mirriam's
Tavern to his house if there was
no heavy flow of traffic. On 8
August 2015, he was driving from Ntuzuma where he had gone to see his
in-laws and along the way
on his way back home, he met with his
cousin Mr Ngiba. He gave Mr Ngiba a lift as Mr Ngiba wanted to visit
his children at Groutville.
While he was driving, he was surprised
when he suddenly heard gun shots. The gun shots struck the right rear
door and the right
fender of his motor vehicle. He swerved his
vehicle to the street in which his house was. He drew his firearm
from his waist and
placed it on his seat with a magazine that was
intact and fully loaded. He got out of the motor vehicle, with his
hands lifted
and lay down. Two male persons alighted from a kombi,
which had stopped in his immediate vicinity. These two males
handcuffed him
to his back and started to assault by kicking and
punching him. When he enquired as to why he was being assaulted these
two male
persons asked him where is the woman he had kidnapped. This
assault continued until the arrival of a marked police van to which

he was taken. He remained at the scene until his wife and children
came to the scene. He was thereafter driven off to Umhlali Police

Station. The plaintiff denied that:
(a)
He or Mr Ngiba ever fired any shots from his motor vehicle towards
the police.
(b)
Mr Ngiba was a back passenger.
(c)
He was intoxicated and he did not observe if Mr Ngiba was intoxicated
or not.
(d)
Any shots which were fired by the police ever struck the tyre of his
motor vehicle.
(e)
He had any pre-existing health problems relating to his abdomen.
[22]
The plaintiff stated that he still had one of the bullet fragments,
which were removed by a mechanic from
his motor vehicle, which was
parked outside the court house. When he got to Umhlali Police Station
he was taken to a tin house
where Sergeant Mabanga questioned him for
2 hours. Whenever he did not answer questions the way Sergeant
Mabanga liked, Sergeant
Mabanga threatened to assault him. As a
result, he decided to answer the questions according to how Sergeant
Mabanga wanted. After
the questioning Sergeant Mabanga took him to
the charge office to be detained. However, Mr Mthembu, who according
to the statement
in the liability bundle was the charge office
commander, refused to allow that he be detained and insisted that he
should be taken
to hospital. The reason why Mr Mthembu suggested that
he should be taken to hospital is because he was injured and had
messed himself
up. Sergeants Mabanga and Khwela then took him to the
kombi drove off with him to fetch his medical aid card from his house
and
thereafter took him to Alberlito Hospital, where he arrived at
about 02h00 in the morning.
[23]
The doctor who examined him at Alberlito Hospital recommended that he
should take a bed rest. When the doctor
returned at 05h00 he told him
to bathe as he intended to operate him. Before the operation, he was
put on a machine, which he understood
to be a scan. He was thereafter
operated and remained confined in hospital for 9 days. During the
period of his confinement in
hospital, he underwent other therapies
for mental distress. During his appearance in court, he was told that
he was arrested for
shooting at the police, robbery, and kidnapping.
He appeared in court on four separate occasions before the charges
were withdrawn
against him on 16 August 2016 due to the
unavailability of state witnesses and the prosecutor complaining
about handwriting of
the witnesses being illegible.
[24]
Under cross-examination the plaintiff admitted that during his
appearance in court he was told that he was
arrested for robbery and
kidnapping. When he was referred to his warning statement in the
liability bundle where it is recorded
that he was arrested for
attempted murder. Based on what is recorded in the warning statement
the plaintiff agreed that he was
not arrested for robbery and
kidnapping but for attempted murder. When it was put to him that
according to his evidence in chief,
he had said he was not drunk he
confirmed that proposition. When the plaintiff was referred to the
bundle of hospital records where
his doctor had recorded in that
bundle that the plaintiff had consumed alcohol, he stated that he did
not know why his doctor recorded
that in his hospital records. As far
as he was concerned, this incident happened a long time ago. The
plaintiff admitted that his
doctor's recordal on the medical records
supported the version of the defendant's witnesses.
[25]
The plaintiff further stated that he did not dispute what his doctor
had recorded and admitted that he lied
when he said he was not drunk.
The plaintiff confirmed that he was arrested by Sergeant Mabanga.
When it was put to the plaintiff
that according to the list of
exhibits recovered from him, the magazine of his firearm had one
bullet and was not full as he testified,
he stated that he does not
know why the magazine had one bullet but his magazine was normally
fully loaded. He testified that he
was assaulted by Sergeants Mabanga
and Khwela on his left flank while lying on his stomach. When he was
confronted about whether
it was possible to have been assaulted on
his stomach while he laid on his stomach, he testified that he was
assaulted at the back.
The plaintiff denied that since he had no
injuries at the back it was improbable that he was assaulted. When it
was put to the
plaintiff that he did not suffer any injuries, he
stated that he experienced pain in the ribs and the abdomen and was
unable to
comment on whether he suffered from any broken or fractured
ribs. The plaintiff did not recall ever mentioning that there were
three police officers who assaulted him. The plaintiff admitted that
he had suffered no visible injuries. The plaintiff testified
that
although Mr Mthembu did not examine him to check whether he had any
injuries Mr Mthembu noticed that his body was skewed towards
the left
and he had messed himself. The plaintiff admitted that he never
mentioned Mr Mthembu and he having messed himself up in
his
affidavit. The plaintiff denied that the reason why this was not
mentioned in his statement is because he was lying. When it
was put
to the plaintiff that the reason he never opened charges of assault
against the police is because he was never assaulted,
he emphasised
that the reason he was admitted into hospital is the assault. The
plaintiff admitted that he was confined in hospital
for 9 days and
not 12 days as set out in paragraph 11.1(b) of his particulars of
claim. The plaintiff denied that there was any
good reason for
Sergeant Mabanga to arrest him. This concluded the evidence for the
plaintiff.
Conflicting
versions
[26]
It is common cause that the plaintiff's and the defendant's versions
are mutually destructive in relation
to the following issues:
(a)
whether the plaintiff and Mr Ngiba were correctly identified as the
assailants who had committed
a robbery and kidnapping near Mirriam's
Tavern.
(b)
whether there were any shots, which were fired from the plaintiff's
motor vehicle on 8 August
2015.
(c)
whether Mr Ngiba was seated at the back of the plaintiffs motor
vehicle.
(d)
whether Mr Ngiba fired any shots towards the police.
(e)
whether the plaintiff's vehicle was shot on the tyre by the police.
(f)
whether the police vehicle which was immediately behind the
plaintiffs vehicle was an unmarked
kombi.
(g)
whether the plaintiff and Mr Ngiba failed to stop when they were
flagged down to stop by the police.
(h)
whether the plaintiff and Mr Ngiba resisted their arrest.
(i)
whether the firearm was recovered from the back or the driver's seat
of the plaintiff's
vehicle.
G)
whether the magazine to the plaintiffs firearm was empty.
(k)
whether the plaintiff was assaulted by the police.
[27]
The proper approach which must be adopted in resolving factual
disputes in respect of two irreconcilable
versions was set out by the
Supreme Court of Appeal as thus:
[1]
'The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and
(c)
the probabilities ... As to (c), this necessitates an analysis and
evaluation of the probability or improbability of each party's

version on each of the disputed issues.'
[28]
For convenience, I would employ this technique under each of the
plaintiff's three separate claims.
Was
the arrest of the plaintiff and Mr Ngiba effected in terms of s 40(1
)(a) or s 40(1 )
(b)
of the CPA?
[29]
This issue is always determined with reference to the pleadings.
However, in this case the defendants in
their amended plea simply
stated that Sergeants Mabanga and Khwela acted in terms of s 40 of
the Criminal Procedure Act 51 of 1977
(CPA) to effect the arrest of
the plaintiff and Mr Ngiba.
[2]
In addition, the defendants further averred that the plaintiff and Mr
Ngiba were subsequently charged with attempted murder as
they acted
with a common purpose to evade their arrest by shooting at the
police.
[3]
Section 40 has two
paragraphs namely paragraph (1) and (2). Section 40(1) has 17
sub-paragraphs namely sub-paragraphs (a) - (q)
enumerating the
grounds under which a peace officer may effect an arrest without a
warrant. The defendants were required to identify
in their plea under
which of the 17 sub-paragraphs of s 40(1) did Sergeants Mabanga and
Khwela act when they effected the arrest
of the plaintiff and Mr
Ngiba. The defendants did not specify the sub-paragraph of s 40(1)
under which Sergeants Mabanga and Khwela
acted when they effected the
arrest of the plaintiff and Mr Ngiba. In order to determine the
specific sub-paragraph of s 40(1)
under which Sergeants Mabanga and
Khwela acted for the purposes of establishing whether the relevant
jurisdictional facts were
established this court had regard to the
defendants' plea against the evidence of Sergeants Mabanga and
Khwela.
[30]
As I said before according to the defendants' plea Sergeants Mabanga
and Khwela had tried to stop the plaintiff's
vehicle after they
received information that the occupants of the vehicle were in
possession of firearms. However, when they pursued
the vehicle, the
plaintiff and Mr Ngiba resisted the arrest by shooting at them.
Sergeants Mabanga and Khwela returned fire to
defend themselves
against the attack from the plaintiff and Mr Ngiba. The plaintiff and
Mr Ngiba were subsequently charged with
attempted murder as they
acted with a common purpose to evade their arrest by shooting at the
police. When the defendants' contentions
as set in their plea are
considered against what emerged from the evidence in court it became
apparent that, in effecting the arrest
of the plaintiff and Mr Ngiba,
Sergeants Mabanga and Khwela in fact acted in terms of the provisions
of s 40(1 )(a) of the CPA
not in terms of s 40(1 )(b) of the CPA or
any other sub­ paragraph of s 40(1).
[31]
Further, according to the sworn statement of Sergeant Mabanga after
the arrest of the plaintiff and Mr Ngiba
it is recorded that:
'I
proceeded to Umhlali SAPS where I detained both of them for attempted
murder.'
[4]
If
regard is had both to the warning statement of the plaintiff
[5]
and Mr Ngiba,
[6]
the plaintiff
and Mr Ngiba were indeed both charged for attempted murder under
Umhlali cas no. 91/08/2015. Additionally, according
to the SAPS 14A,
which is a notice of rights in terms of the Constitution, which the
plaintiff signed at 23h00 on 8 August 2015,
the plaintiff was
detained for attempted murder.
[7]
As a further indication that the plaintiff was indeed arrested for
attempted murder even his sworn statement
[8]
and his medical report
[9]
compiled by Dr BM Visser bore Umhlali cas no. 91/08/2015, which is
the police case number that was allocated to the case after
the
arrest of the plaintiff and Mr Ngiba.
[32]
Furthermore, according to the sworn statement of Sergeant Khwela
after the arrest of Mr Ngiba it is recorded
that:
'I
then informed the accused of the charges against him for possession
of unlicensed firearm and also discharging of firearm in
full of the
public. I then placed him under arrest.'
[10]
If
regard is had to the warning statement of Mr Ngiba,
[11]
Mr Ngiba, in addition to having been charged with attempted murder,
was indeed also charged with possession of an unlicensed firearm

under Umhlali cas no. 91/08/2015. During his evidence, Sergeant
Khwela had testified that the plaintiff and Mr Ngiba were charged

separately for each offence.
[33]
Moreover, according to the sworn statement of Constable Patronella
Philile Mlambo, the investigating officer,
on 10 August 2015 she
proceeded to 1[...] S[...] to obtain a statement from Mr Langa and
his girlfriend when she learnt that the
suspects were already
arrested under Umhlali cas no. 91/08/2015 and detained at Umhlali
SAPS. At Umhlali SAPS, when she perused
the SAPS 14 the cell
register, she established that the plaintiff was arrested as per the
SAP 14 77/08/2015 and Mr Ngiba arrested
as per SAP 14 78/08/2015,
were the same suspects who were involved in the shooting at
Shakashead. This was the main docket from
which everything started.
After linking the suspects, she then charged both Mr Ngiba and the
plaintiff for attempted murder. She
charged the plaintiff in absentia
as he was hospitalised at Alberlito Hospital.
[12]
If regard is had to the warning statement of Mr Ngiba,
[13]
above and beyond the charges of attempted murder relating to the
police and possession of an unlicensed firearm, Mr Ngiba was also

charged with attempted murder relating to Mr Langa and his
girlfriend. The plaintiff apparently was not caused to sign any
warning
statement as he was hospitalised.
[34]
From this synopsis, it is clear that the initial complaint of robbery
and kidnapping did not found the arrest
of the plaintiff and Mr
Ngiba. In any event during his evidence Sergeant Khwela specifically
pointed out that while they had initially
pursued the plaintiff and
Mr Ngiba for robbery and kidnapping, they ultimately arrested them
for shooting at them as the police.
Sergeants Mabanga and Khwela were
criticized on why were the main charges not robbery and kidnapping as
per the initial complaint.
I agree with Sergeant Khwela that the
person who was best placed to answer that question was the
investigating officer, Constable
Mlambo. In any event, while that
question might have been relevant in the criminal proceedings, it was
not relevant for the purposes
of these proceedings as, Sergeant
Mabanga arrested the plaintiff for attempted murder, which related to
the shooting of the police
by Mr Ngiba. This happened in the presence
of both officers according to their version.
[35]
If one has regard to the pleadings in this case at a factual level it
was always clear that the arrest of
the plaintiff and Mr Ngiba was
founded on the provisions of s 40(1 )
(a)
of the
CPA not on the provisions of s 40(1 )(b) of the CPA. The plaintiff
himself refers to the provisions of s 40(1 )
(a)
of the
CPA in his replication. It is trite that parties have a duty to
allege in the pleadings the material facts upon which they
rely and
it is impermissible for a party to plead a particular case and seek
to establish a different case at the trial.
[14]
It was desirable for the defendants to specify in their plea the
sub-paragraph of s 40(1) under which Sergeants Mabanga and Khwela

acted when they effected the arrest of the plaintiff and Mr Ngiba and
not to state it in general terms. However, this court is
satisfied
that the issue of the relevant sub-paragraph of s 40(1) under which
Sergeants Mabanga and Khwela acted was sufficiently
canvassed in the
pleading and during the trial. I will therefore determine this case
in terms of provisions of s 40(1)
(a).
Applicable
law
Unlawful
arrest
[36]
In terms of s 40(1)
(a)
of the
CPA a peace officer may without a warrant arrest any person who
commits or attempts to commit any offence in his presence.
The
jurisdictional facts which must be established for an arrest without
a warrant to be justified under s 40(1)(a) of the CPA
are the
following:
[15]
(a)
The arrestor must be a peace officer.
(b)
An offence must have been committed or there must have been an
attempt to commit an offence.
(c)
The offence or attempted offence must be committed in his or her
presence.
[37]
The determination of the question whether an arrest in terms of s
40(1 )(a) was reasonable and justified
is objective. This provision
requires that there must be in existence of a particular factual
situation before the peace officer's
power to arrest without a
warrant can come into existence. If the circumstances exist, the
arrest can be made.
[16]
The
legality of an arrest in terms of s 40(1 )(a) requires a
determination whether the facts observed by the arresting officer
'as
a matter of law prima facie established the commission of the offence
in question.'
[17]
The
determination which this court must make can only be made with
reference to the question set out below.
Did
the plaintiff and Mr Ngiba shoot at the police?
[38]
It is common cause that both Sergeants Mabanga and Khwela are peace
officers. Both alleged that while they
pursued the plaintiff's motor
vehicle, the plaintiff had failed to stop upon being commanded to do
so by them instead, they were
shot at by Mr Ngiba. So, it is
indisputable that Sergeants Mabanga and Khwela were present at the
scene. Of the three jurisdictional
facts, which must be established,
two were established. The only outstanding jurisdictional fact is
whether there was any offence,
which the plaintiff and Mr Ngiba
attempted to commit or committed. The question of whether the
plaintiff and Mr Ngiba fired shots
at the police will be determined
with reference to the principles regarding the resolution of disputes
of facts, which I alluded
to above.
[18]
[39]
Mr
Naidoo
SC, who together with Mr
Brimiah
, appeared
for the plaintiff, argued that I should find that the arrest of the
plaintiff and Mr Ngiba was a case of mistaken identity.
They argued
that this was so because if I considered the evidence of Sergeants
Mabanga and Khwela against the sworn statement of
Mr Langa and his
girlfriend, Ms Thembisile Nzimakwe, it supports this conclusion. In
their sworn statements, Mr Langa and his girlfriend
stated that there
were three assailants who were involved in the perpetration of the
offences against them on the day in question.
Two of those assailants
were in possession of firearms and one of them was the driver of the
motor vehicle who did not get out
of the motor vehicle. While on the
other hand, Sergeants Mabanga and Khwela only arrested the plaintiff
and Mr Ngiba, and recovered
only one firearm. They argued further
that if I considered these factors together with the fact that
Sergeant Mabanga had testified
that the plaintiffs motor vehicle was
within eyeshot when they arrived at the scene, this can lead to one
conclusion and one conclusion
only that the plaintiff and Mr Ngiba
could not possibly have been the perpetrators of the robbery and
kidnaping at Mirriam's Tarven.
[40]
Moreover, they argued that had a prima residue been run, ballistic
examination been done on the cartridge
cases, which were recovered at
the scene, against the plaintiff's firearm and the identity parade
for the identification of the
plaintiff and Mr Ngiba been conducted,
the police could have established that the plaintiff and Mr Ngiba
could not possibly have
been the perpetrators of the offences. Mr
Naidoo
argued that based on these failures by the police
coupled with the subsequent withdrawal of the charges against the
plaintiff and
Mr Ngiba, there was only one irresistible inference and
it is that the arrest of the plaintiff and Mr Ngiba was a case of
mistaken
identity.
[41]
I disagree with the plaintiff's contentions. First, because they
presuppose that the plaintiff and Mr Ngiba
were arrested for the
alleged robbery and kidnapping as was reported by Mr Langa. This is
not correct because both Sergeants Mabanga
and Khwela unequivocally
stated that they arrested the plaintiff and Mr Ngiba for allegedly
shooting at them. I will return to
the question of whether Sergeants
Mabanga and Khwela were ever shot at later in this judgment. Second,
to consider the sworn statements
of Mr Langa and his girlfriend
against the evidence of Sergeants Mabanga and Khwela in my assessment
of the evidence would amount
to an admission of hearsay evidence. The
plaintiff's contention that I may be able to do so because the
parties during the rule
37 conference agreed that the docket may be
used is with respect incorrect. The agreement was in relation to the
use of the docket
as the parties had indeed used the docket during
the trial by referring to it. However, this did not mean that the
contents of
the statements of Mr Langa and his girlfriend were true
and contents were suddenly admissible as evidence admissible against
the
defendants. If that were so, it would not have been necessary to
run this trial.
[42]
Third, the plaintiffs contention amounts to an invitation that I must
consider Sergeant Mabanga's evidence
in isolation in relation to the
question of whether the plaintiff's motor vehicle was still within
eyeshot when Sergeants Mabanga
and Khwela came to the scene. Sergeant
Mabanga's evidence in this respect should be considered along with
the other evidence. Fourth,
the running of a prima residue test,
ballistic examination of the firearm and cartridge cases and the
identification parade are
investigative steps, which are carried out
after arrest. The information that is required to be at the disposal
of an arresting
officer does not have to be of sufficiently high
quality and cogency to engender in the mind of the arresting officer
that a conviction
of the suspect will in fact ensue. The mere fact
that the plaintiff and Mr Ngiba were not prosecuted, as the plaintiff
suggests
in his replication, does not make the arrest unlawful.
[43]
On the question of whether the plaintiff and Mr Ngiba fired shots at
the police, it would be well to consider
the evidence of the
plaintiff against that of the defendants. Both Sergeants Mabanga and
Khwela confirmed that they were given
the full description of the
plaintiff's motor vehicle including its registration number, its
colour and make as a silver Suzuki.
While Sergeant Mabanga said this
motor vehicle was within eyeshot when they were at the scene,
Sergeant Khwela stated that they
spotted the vehicle fitting the
description they were given at they entered Shakashead. Considering
that the incident happened
nine years before Sergeant Mabanga
testified in this case it is reasonable to conclude that he was
honestly mistaken as to the
whereabouts of the plaintiff's motor
vehicle when they arrived at the scene. Both Sergeants Mabanga and
Khwela corroborated each
other that the shots from the plaintiff's
motor vehicle emanated from the back. The person who was allegedly
seated at the back
was Mr Ngiba. If Mr Ngiba was seated on the front
passenger seat as the plaintiff suggested and not at the back, I do
not see any
reason why Sergeants Mabanga and Khwela would have lied
about this. If seating on the front passenger seat would have made
any
difference in Mr Ngiba being unable to fire shots, may be that
would have been different. In my view, if Sergeants Mabanga and
Khwela wanted to falsely implicate the plaintiff and pin him in
respect of an offence he did not commit they could have said that
he
is the one who fired the shots towards the police. Further and in any
event considering that the plaintiff's vehicle was reported
to have
been driving at a high speed, the plaintiff would not have been able
to shoot at the police while he drove his vehicle.
It is more
probable that he handed his firearm to Mr Ngiba.
[44]
The plaintiff portrayed a picture that there was no electricity at
Shakashead on the day in question. He
testified that as he was
driving, he was surprised to suddenly hear gunshots. He immediately
realised he was under attack as shots
were fired at him from the
vehicle that was behind him. He drew his firearm from his waist and
placed it on his seat with a magazine
that was intact and fully
loaded. He got out of the motor vehicle, with his hand lifted and
laid down. Two male persons alighted
from a kombi, which had stopped
in his immediate vicinity.
[45]
In my view, the plaintiff's version is not only improbable but was
clearly contrived. I say so, first, because
he did not say why there
was no electricity at Shakashead on the day in question, whether it
was due to loadshedding and/or a prevailing
electric fault in the
area. Second, Sergeant Mabanga was not challenged at all when he
testified that the area was not only illuminated
by street lights but
also by the lights from the police vehicles. While Sergeant Khwela
was challenged on the issue of lighting
in the area, he corroborated
the evidence of Sergeant Mabanga and insisted that the area was well
lit by street lights and in addition
the police motor vehicles
provided further light. Third, it is inconceivable that the plaintiff
would have withdrawn his firearm
only to place it on the seat and
surrender without using it. Fourth, if the magazine of the
plaintiff's firearm was intact and
fully loaded there is no reason
why, when his firearm was recovered, it would have been empty. The
plaintiff never suggested that
when the police recovered the firearm,
they interfered with the magazine in any way whatsoever. Fifth, it is
common cause that
several members of the police from different units
came to the scene. It is impossible that these several members from
these different
units would have squeezed themselves in the double
cab, which was certified to carry only five people while Sergeants
Mabanga and
Khwela had the kombi to themselves. In addition, it is
highly unlikely that this kombi did not bear the SAPS emblem
especially
when it was used by members from different units and not
the members of the detective branch of the SAPS. I find that there is
no reason why Sergeants Mabanga and Khwela would lie about this.
Sixth, the plaintiff has always known since his arrest on 8 August

2015 that the defendants' version was that Mr Ngiba fired shots at
them from his motor vehicle and that they found his firearm
on the
floor at the back of his motor vehicle. However, in his affidavit,
which was sworn to two months after the incident, the
plaintiff
wisely evaded the issue whether he or Mr Ngiba engaged the police
when the police fired at them. In addition, the plaintiff
never
mentioned that when he alighted from his motor vehicle, he left his
firearm of the driver's seat. The plaintiff mentioned
this for the
first time during the trial. This is clearly an afterthought of the
plaintiffs recent fabrication to bolster his claim
for damages
against the defendants.
[46]
When these improbabilities are taken together with the plaintiff
conceding that he lied when he testified
that he was not drunk on the
day in question they do not only render the plaintiff's version
untrue, but also improbable in so
far as his arrest is concerned. I
therefore find that Mr Ngiba fired shots directed at the police. In
doing so, he acted with a
common purpose with the plaintiff in that
he used the plaintiff's licensed firearm and the plaintiff failed to
stop when the police
flagged him to stop. In the circumstances, I
reject the plaintiffs evidence as untrue as far as it relates to his
arrest.
[47]
The defendants' case was not on its own without blemish. For example,
Sergeant Mabanga had said in his statement
two shots were fired
towards them, while he said in his evidence several shots were fired
towards them. It was not clear from the
evidence of both Sergeants
Mabanga and Khwela whether the plaintiffs firearm was on the backseat
or on the floor at the backseat.
It was further not clear if their
evidence was considered against their sworn statements, and whether
they received the information
from the informer or Mr Langa.
Sergeants Mabanga and Khwela were also criticised for failing to
include certain information in
their sworn statements such as the
details of the shooting by the plaintiff and Mr Ngiba. As far as the
contradictions between
the evidence of Sergeants Mabanga and Khwela
and their sworn statements are concerned it is important first, not
to lose sight
of the circumstances under which the statements were
made. Second, and most importantly the time factor between the
incident and
the trial is also of critical importance in the
determination of what is to be made of what is said in the statement
to underscore
the effect of the delay between the taking of the
statement and the trial.
[48]
Perhaps to underscore the damage inordinate delays do in litigation
it is apposite to refer to the dictum
of Didcott J when he
stated:
[19]
'Inordinate
delays in litigating damage the interests of justice. They protract
the disputes over the rights and obligations sought
to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor
in the end is it always possible to adjudicate
satisfactorily on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose
testimony can still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent
procrastination and
those harmful consequences of it.'
[49]
Although Didcott J said this in a different context and that context
having been in relation to the notices,
which have to be given before
the institution of any litigation against State entities, his
dictum
holds true for this case. A witness statement is in the main required
to enable the prosecuting authority to determine whether
a
prosecution is called for, on what charge and to consider which
witnesses to call on which issues. It would be absurd to expect
a
witness to say exactly in his statement what he will eventually say
in court.
[20]
[50]
I have considered the sworn statements of both Sergeants Mabanga and
Khwela and have weighed it up against
their viva voce evidence, and
all the other evidence in so far as their evidence relates to the
arrest of the plaintiff and Mr
Ngiba, I am satisfied that the
evidence of Sergeants Mabanga and Khwela is truthful and reliable
despite any shortcomings.
[51]
In the circumstances, I find that when Sergeants Mabanga and Khwela
arrested the plaintiff and Mr Ngiba,
they acted in terms of s
40(1)
(a)
as they fired shots directed towards them.
[52]
Once the jurisdictional facts have been established, the peace
officer has a discretion whether or not to
arrest. It has not been
alleged by the plaintiff that Sergeant Mabanga did not exercise his
discretion properly when he arrested
the plaintiff and Mr Ngiba. All
that the plaintiff did was to dispute that there were any shots,
which were fired to the police.
In any event, in my view, Sergeant
Mabanga exercised his discretion correctly. I say so because from the
time the police spotted
the plaintiff and Mr Ngiba, they flagged them
to stop but they failed to do so instead they fired shots to the
police. When they
eventually stopped after the tyre of the plaintiffs
vehicle was shot, they both resisted arrest. The offences in respect
of which
the plaintiff and Mr Ngiba were arrested for are serious and
are listed in Schedule 1 of the CPA. What aggravated the seriousness

of these offences is that when Mr Ngiba fired at the police, he used
the firearm which was licensed to the plaintiff. Accordingly,
I find
that the arrest of the plaintiff and Mr Ngiba was lawful.
Detention
[53]
This leads me to the issue of detention. The enquiry into whether the
detention was lawful or not, constitutes
a separate enquiry from that
of the arrest. Justification for detention like arrest rests on the
police. If after the arrest it
becomes clear to the police that the
detainee is innocent there would be no justification for continued
detention. In essence a
police officer insofar as the issue of
detention is concerned is still required to apply his or her mind to
the question whether
the person's detention is necessary or not.
[21]
[54]
Any person, whether arrested with or without a warrant of arrest,
maybe released from detention in terms
of the bail provisions of the
CPA. For the purposes of this judgment the relevant provisions as to
what must happen to a person
who has been arrested whether with or
without a warrant for allegedly committing an offence, is section 50
of the CPA. Section
50 provides as thus:
'50
Procedure after arrest
(1
)
(a)
Any person who is arrested with or without warrant for
allegedly committing an offence, or for any other reason, shall as
soon as
possible be brought to a police station or, in the case of an
arrest by warrant, to any other place which is expressly mentioned
in
the warrant.
(b)
A person who is in detention as contemplated in paragraph (a) shall,
as soon as reasonably possible,
be informed of his or her right to
institute bail proceedings.
(c)
Subject to paragraph (d), if such an arrested person is not released
by reason that-
(i)
no charge is to be brought against him or her; or
(ii)
bail is not granted to him or her in terms of section 59 or 59A,
he
or she shall be brought before a lower court as soon as reasonably
possible, but not later than 48 hours after the arrest.
(d)
If the period of 48 hours expires-
(i)
outside ordinary court hours or on a day which is not an ordinary
court day, the accused
shall be brought before a lower court not
later than the end of the first court day ... '
[55]
It is trite that detention like
[22]
'An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems to be fair and just
to require that
the person who arrested or caused the arrest of another person should
bear the onus of proving that his action
was justified in law.'
[56]
It is common cause that after the plaintiff was arrested, he was
taken to Alberlito Hospital where he was
treated and remained
confined until he was discharged on 20 August 2015. At hospital the
plaintiff was under police guard. Except
to say that after he was
discharged from hospital, he appeared in court four times before the
charges were withdrawn against him,
the plaintiff did not lead any
further evidence on this issue. He did not indicate whether he was
released on bail or on warning
by the court. Even in his particulars
of claim the plaintiff says no more than saying, 'he was initially
detained at Umhlali Police
Station and thereafter at Netcare
Alberlito Hospital, for an inclusive period of twelve days,' On the
other hand, the defendants
in their amended plea stated that when
Sergeants Mabanga and Khwela pursued the plaintiff and Mr Ngiba they
did so in order to
arrest them to secure their attendance at court.
As I said before, the offences in respect of which the plaintiff and
Mr Ngiba
were arrested for are serious offences, which are listed in
Schedule 1 of the CPA. What aggravated their seriousness was the fact

that when Mr Ngiba fired at the police, he used the firearm which was
licensed to the plaintiff. In my view, the police exercised
their
discretion properly initially in detaining the plaintiff at Umhlali
Police Station and later in placing the plaintiff under
the police
guard in hospital. This is so because the offence in relation to
which the plaintiff was arrested is a very serious
offence, which
involved the use of a firearm against the police in the execution of
their duties. Accordingly, I find that the
detention of the plaintiff
was lawful.
Assault
[57]
It is trite that any infringement of a person's bodily integrity is
prima
facie
unlawful.
[23]
The Supreme
Court of Appeal (SCA) laid down the general principles that apply in
matters involving delicts affecting the bodily
integrity of a
claimant and in circumstances where the defendant raises a defence or
ground of justification, such as self-defence.
The court held that
ordinarily the defendant bears the overall onus of proving his/her
justification for the otherwise unlawful
conduct. It is not for the
plaintiff who normally bears the overall onus of proof in a delictual
action, to disprove the defendant's
ground of justification, unless
the particular pleadings in the case place this onus on the
plaintiff.
[24]
[58]
What is equally trite is that the State is liable for the acts of the
police who assault a person during
an arrest performed by the police
pursuant to an exercise of a discretion to arrest.
[25]
Once the plaintiff has established his physical assault by the police
the onus then shifted to the police to prove grounds of
justification.
[26]
[59]
In terms of s 49(2) of the CPA, reasonable force may be used to
effect an arrest. Section 49(2) of the CPA
provides:
'If
any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt and flees, when
it is clear
that an attempt to arrest him or her is being made, and the suspect
cannot be arrested without the use of force, the
arrestor may. in
order to effect the arrest, use such force as may be reasonably
necessary and proportional in the circumstances
to overcome the
resistance or to prevent the suspect from fleeing ...
'
[60]
It is common cause that Sergeants Mabanga and Khwela fired shots at
the plaintiff's vehicle not only when
the plaintiff failed to stop
after they had flagged him to stop but when Mr Ngiba fired shots at
them. According to Sergeant Khwela's
evidence they used minimum force
to effect the arrest of the plaintiff. The defendants aver in their
plea that the second and third
defendants had no alternative but to
return fire and in order to arrest the plaintiff and Mr Ngiba and to
further defend themselves
against the attack of the plaintiff and Mr
Ngiba. Thus, the second and third defendants used reasonable measures
to prevent the
flight of the plaintiff and Mr Ngiba which was
necessary and proportional in the circumstances.
[61]
What emerges from the defendants' version is that they used minimum
force to achieve two purposes. First,
to prevent the plaintiff and Mr
Ngiba from evading arrest. Second, to defend themselves against an
unlawful attack by the plaintiff
and Mr Ngiba.
[62]
It is common cause that no one got injured from the shots, which the
police fired towards the plaintiff's
vehicle in order to defend
themselves from the shots, which were fired by Mr Ngiba. However, the
plaintiff alleges that he was
assaulted after he was apprehended.
However, Sergeants Mabanga and Khwela deny that the plaintiff was
ever assaulted. This is where
the plaintiff and the defendants'
versions are mutually destructive. To resolve this factual dispute, I
must apply the principles,
I have previously alluded to.
[27]
[63]
Before I do so it is necessary to consider the other issue, which is
relevant on this issue of probabilities
and that is the medical
report of Dr Visser. At the commencement of the trial Mr
Naidoo
had applied that I accept the medical report, which was complied by
Dr Visser, who at the time of the trial was in Madagascar,
in terms
of
s 3(1)
(c)
of the
Law of Evidence Amendment Act 45 of 1988
.
Mr
Sibeko,
for the defendants, opposed this application. He
did not advance any reason why. However, the reasons can be gleaned
from the defendants'
amended plea. First, the defendants allege that
the police stamp on the J88 form reflected 10 September 2015 when the
plaintiff
was allegedly assaulted on 8 August 2015. Second, the J88
form did not reflect that the plaintiff sustained any fractures to
his
ribs. Third, the J88 form did not reflect that the plaintiff
underwent surgery, as a result of any injuries he may have sustained.
[64]
As it can be seen the issue of Dr Visser's medical report has been
extensively dealt with even in the pleadings.
In addition, the
plaintiff was also extensively cross-examined in relation to the
contents of Dr Visser's medical report, and on
his clinical notes,
which he took during the examination of the plaintiff. This is what
enabled Mr Sibeko to get a concession from
the plaintiff that he was
indeed drunk. Moreover, the medical report of Dr Visser was
accompanied by the relevant affidavit and
certificate in terms of
sections 212(4)
,
213
(2)(a) and
213
(3) of the CPA. Both in the
affidavit and in the certificate Dr Visser states that he examined
the plaintiff on 9 August 2015 at
03h00. The issue of the police
stamp being endorsed on the J88 form later does not mean that the
examination was done on 10 September
2015. In circumstances, I admit
the medical report of Dr Visser in terms of
s 3(1
)
(c)
of the
Law of Evidence Amendment Act.
[65
]
Both Sergeants Mabanga and Khwela testified that when the plaintiff
was pulled out of his vehicle he landed
'painfully' on his stomach.
Both coincidentally use the word 'painfully.' In addition, both say
that the plaintiff told them that
he had a scheduled appointment with
the doctor the next day. According to the plaintiff, after he was
restrained with handcuffs,
he testified that he was assaulted by
Sergeants Mabanga and Khwela by being kicked with booted feet and
punched. While Sergeant
Khwela denied ever having dealt with the
plaintiff and going as far as to say he never even came close to him
except when he was
taken to the police vehicle. However, conveniently
he was able to see the plaintiff falling on his stomach.
[66]
Both Sergeants Mabanga and Khwela could not explain how would it have
come about that the plaintiff was not
detained in the police holding
cells after his arrest, but had to be taken to hospital where he was
confined until he was discharged
on 20 August 2015. They could not
explain how a man, who according to them was fit enough to resist
arrest, would suddenly become
infirm. They both denied that they took
the plaintiff home for the plaintiff to fetch his medical aid card
and thereafter transported
him to hospital. However, when Sergeant
Mabanga was pressed on the issue, he testified that he does not
recall taking the plaintiff
home. In my view, there is no reason why
the plaintiff could possibly lie about these two police officers
having taken him home
to fetch his medical aid card and then
transporting him to hospital. As the police officers who arrested the
plaintiff and who
were on duty at the time and had the material
resources it made sense and was probable that they transported him
home and then
to hospital.
[67]
While both Sergeants Mabanga and Khwela insisted that the plaintiff
had fallen painfully on his stomach and
that he had a scheduled
appointment with his doctor the next day, they did not record this
anywhere in their sworn statements,
or at the very least depose to
supplementary sworn statements afterwards when they came to know that
the plaintiff was hospitalised.
The fact that the plaintiff had to
undergo laparotomy for an abdominal haemorrhage and bowel resection
anastomosis within two hours
of his admission at Alberlito Hospital,
and within a few hours after his arrest by the police, makes it more
probable that his
injuries were as a result of recent trauma.
[68]
Mr
Sibeko
, for the defendants, in cross-examination contended
that it was impossible for the plaintiff to have suffered injuries on
his stomach
if he was assaulted while lying on his stomach. Further,
he contended that since the plaintiff had no injuries at the back it
was
improbable that he was assaulted at all. Mr
Sibeko's
contentions failed to consider, first that the plaintiff testified
that he was also assaulted on his flanks and that according
to the
J88 he had bruising on the right side of his stomach. Second, the
plaintiff had a perforated bowel. Mr
Sibeko
could not possibly
make this proposition without the benefit of a medical opinion on
whether bowel perforation was possible if
a person was assaulted from
the back and the flanks. Third, Mr
Sibeko
ignored that the
plaintiff reported to the doctor that he was assaulted by the police
and the doctor recorded this on the hospital
record and in addition
the plaintiff was diagnosed with a blunt abdominal trauma. Fourth, in
the J88, the doctor concluded that
the free leaking air out of the
hole in the plaintiff's bowel was in keeping with a history of the
alleged blunt abdominal trauma.
[69]
After having considered all the evidence in respect of this claim and
based on what I have set out above,
I am of the view that the
plaintiff's version is more probable than that of the defendants.
While the defendants simply denied
having assaulted and put the
plaintiff to the proof of the allegations in the light of the nature
of the injuries the plaintiff
suffered the only inescapable inference
which could be drawn therefrom is that the plaintiff was assaulted by
the police.
[28]
I therefore
reject Sergeants Mabanga's and Khwela's proposition that the
plaintiff could have been injured because he fell awkwardly
on his
stomach and/or that he had a pre-existing condition. I therefore find
the defendants liable to compensate the plaintiff
for 100% of his
proved or agreed damages.
Malicious
prosecution
[70]
I now turn to consider the third claim of malicious prosecution. It
is trite that in order to succeed with
a claim for malicious
prosecution, a claimant must allege and prove that:
(a)
the defendant set the law in motion (instigated or instituted the
proceedings);
(b)
the defendant acted without reasonable and probable cause;
(c)
the defendant acted with malice or (
animo iniuriandi
); and
(d)
the prosecution has failed.
[29]
[71]
The plaintiff led very brief evidence in respect of this claim. The
plaintiff testified that during his appearance
in court, he was told
that he was arrested for shooting at the police, robbery, and
kidnapping. He appeared in court on four separate
occasions before
the charges were withdrawn against him on 16 August 2016, due to the
unavailability of State witnesses and the
prosecutor complaining
about handwriting of the witnesses being illegible.
[72]
It is common cause that on this brief evidence the plaintiff had only
established the first and fourth requirements
in this case, which
therefore meant that I had to determine whether the plaintiff proved
his case in relation to the other two
requirements.
[73]
During the hearing of the matter, I specifically asked both counsel
if the plaintiff had proved this claim.
They were both agreed that
the plaintiff had not proved this claim. However, in their written
submissions, which I had directed
them to deliver on 26 July 2024 and
2 August 2024, respectively, both counsel seemingly resiled from the
position, which they adopted
during the hearing and addressed me
extensively on this claim.
[74]
As I have already expressed my view in respect of this claim that on
the evidence that is before me the plaintiff
cannot possibly succeed
on this claim, however, for completeness I proceed to analyse the
further requirements which the plaintiff
had to prove.
[75]
In
Moleko
[30]
the SCA explained reasonable and probable cause as thus: 'Reasonable
and probable cause, in the context of a claim for malicious

prosecution, means an honest belief founded on reasonable grounds
that the institution of proceedings is justified. The concept

therefore involves both a subjective and an objective element -
"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."' (footnotes
omitted)
[76]
The following from
Relyant
Trading (Pty) Ltd v Shongwe and another
[31]
was quoted with approval by the court in
Moleko:
[32]
'The
requirement for malicious arrest and prosecution that the arrest and
prosecution be instituted "in the absence of reasonable
and
probable cause" was explained in
Beckenstrater v Rottcher and
Theunissen
as follows:
"When it is alleged
that a defendant had no reasonable cause for prosecuting, I
understand this to mean that he did not have
such information as
would lead a reasonable man to conclude that the plaintiff had
probably been guilty of the offence charged;
if, despite his having
such information, the defendant is shown not to have believed in the
plaintiffs guilt, a subjective element
comes into play and disproves
the existence, for the defendant, of reasonable and probable cause."
It
follows that a defendant will not be liable if he or she held a
genuine belief founded on reasonable grounds in the plaintiffs
guilt.
Where reasonable and probable cause for an arrest or prosecution
exists the conduct of the defendant instigating it is not
wrongful.
The requirement of reasonable and probable cause is a sensible one:
'For it is of importance to the community that persons
who have
reasonable and probable cause for a prosecution should not be
deterred from setting the criminal law in motion against
those whom
they believe to have committed offences, even if in so doing they are
actuated by indirect and improper motives.'
[77]
In respect of the requirement that the defendant must have acted with
'malice' or
animo
iniurand
i
the SCA in
Moleko
[33]
further said:
'[61]
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
action 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."'
[62]
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.
[63]
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
."'
[78]
Turning now to the issue of whether the defendants would be liable to
the plaintiff for malicious prosecution,
as I said the plaintiff led
very brief evidence, and the defendants controverted the plaintiffs
case to the extent necessary. However,
they did not call the
prosecutor(s) who dealt with the case from time to time until the
charges were withdrawn. This issue must
therefore be determined based
on the plaintiff's evidence taken together with the pleadings and
other documents, which served before
the court namely the sworn
statements of Sergeants Mabanga and Khwela and the warning statements
of the plaintiff and Mr Ngiba.
[79]
In paragraph 13, of the plaintiffs particulars of claim he alleges
that on or about 8 August 2015, the second
and third defendants
wrongfully and maliciously set the law in motion by
inter alia
making false statements against the plaintiff alleging that the
plaintiff was in possession of an unlicensed firearm and had
attempted
to shoot at the members of the South African Police
Service.
[80]
In paragraph 14, the plaintiff alleges that when laying this charge
and giving this disinformation, the second
and third defendants had
no reasonable or probable cause for doing so nor did they have any
reasonable belief in the truth of the
information given.
[81]
The plaintiffs allegations do not have any foundation based on the
facts. The plaintiff was not charged for
possession of an unlicensed
firearm, but it was Mr Ngiba who was charged for possession of an
unlicensed firearm. It is correct
that the plaintiff was indeed
charged for attempted murder on the basis of the statements that were
made by Sergeants Mabanga and
Khwela. However, I have already found
that the arrest and detention of the plaintiff was lawful and do not
consider it necessary
to repeat the basis upon which I found that
they were justified here.
[82]
Due to the absence of the charge sheet and the investigation diary,
it is unknown who was the prosecutor
who formulated the charges and
enrolled the matter in court. In
Moleko
it was held that in an
action premised on malicious prosecution with regard to the liability
of the police, the question is whether
they did anything more than
one would expect from a police officer in the circumstances, namely
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.
[83]
What Sergeants Mabanga and Khwela did after arresting the plaintiff
was to depose to their sworn statements.
It has not been suggested
that after the plaintiff was taken to hospital that Sergeants Mabanga
and Khwela had any further role
to play in this case. As much as
Sergeants Mabanga and Khwela were criticised for certain omissions in
their sworn statements,
I have however accepted their evidence is so
far as the arrest of the plaintiff is concerned. In the
circumstances, it would be
fair to conclude that their sworn
statements gave a fair and honest account of the relevant facts to
the prosecutor and left everything
to the prosecutor to decide
whether to prosecute or not. Consequently, I find that Sergeants
Mabanga and Khwela, after taking the
plaintiff to hospital, had no
further role to play in this case. Any assertion that they set the
law in motion against the plaintiff
is unsustainable and must
therefore fail.
[84]
In the circumstances, I find that the plaintiff has failed to prove
that the defendants acted with malice
(
animo injuriandi
) and
without a reasonable and a probable cause. In the premises, the
plaintiffs claim for malicious prosecution against the defendants

must fail.
Is
it competent to grant an order against the Minister of Police in the
light of his misdescription as an MEC for Safety and Security?
[85]
The plaintiff, in his further heads of argument on this issue,
submitted that in considering the issue I
should have regard to the
fact that the first defendant in its amended plead alleged that:
'The
first defendant admits that he is the Member of the Executive Council
for Safety and Security for the Province of KwaZulu-Natal.'
I
should consider this along with what the first defendant pleaded in
its initial plea where it is alleged:
'Save
to state that the first defendant is called the Minister of Police,
the Defendants admit the allegations contained herein.'
[86]
Mr
Naidoo
submitted that in view of the fact that the Minister of Police was at
all material times aware of this case, delivered all necessary

pleadings, was not only legally represented during the trial but
tendered evidence, the Minister of Police was therefore a party
that
was appropriately before me. Relying on the case of
City
of Tshwane v Afriforum and anothe
r
[34]
he urged me to ensure that I did not allow form to triumph over
substance. He urged me not to allow technicalities to frustrate
the
achievement of real and substantive justice between the parties. Mr
Naidoo
further urged me in determining this issue to have regard to the
defendants' initial plea.
[87]
Mr
Sibeko
on the other hand submitted that in view of the MEC
for Safety and Security being a non-existent
persona
the
plaintiff was required to bring an application for an amendment of
his pleadings in terms of the rules. I have considered the

submissions from both parties and the authorities they relied on.
[88]
Before I may bring my mind to bear on the issue, it would be useful
to give a brief background of this case.
This case has been pending
before this court since 8 May 2017 when the summons was issued
against the defendants. This case was
certified as trial ready on 14
March 2023. The trial of this case was allocated to me by Henriques
ADJP on 27 May 2024. Upon the
allocation of the matter to me Mr
Sibeko
requested me to postpone the case to the next day to
enable him to consult with his witnesses. I granted the postponement.
Mr
Sibeko
thereafter led the evidence of Sergeant Mabanga and
later the evidence of Sergeant Khwela, who are both members of the
SAPS, stationed
at Umhlali Police Station. When Mr Sibeko led this
evidence, he did so on behalf of the Minister of Police.
[89]
In the defendants' further heads of argument Mr Sibeko correctly
referred to the case of Four Tower Investments
(Pty) Ltd v Andre's
Motors
[35]
where Galgut DJP
stated:
'[29]
... the citation of a party is nothing more than a misdescription, it
should not matter whether the incorrect citation happens
on the face
of it to refer to a nonexisting entity or indeed to an existing but
uninvolved entity.'
[90]
The approach in Four Tower Investments has been approved in
Barnard
and others NNO v Imperial Bank Ltd and another
[36]
and
Essence
Lading CC v lnfiniti Insurance Ltd and another
.
[37]
[91]
At all material times, the parties in this case have proceeded on the
basis that the first defendant was
the Minister of Police, then known
as the Minister of Safety and Security. When Mr
Sibeko
argued
the case, he did so on behalf of the Minister of Police. In view of
the foregoing, I do not foresee any prejudice being suffered
by the
Minister of Police should I make an order against him. Throughout the
various stages of the case the Minister of Police
meaningfully
participated in the case. Mr
Sibeko
could not possibly represent a non-existent party as such a party
would not have been able to give him appropriate instructions.
Mr
Sibeko
had argued that the MEC for Safety and Security is non-existent
persona and the plaintiff was therefore required to bring an
application
for an amendment of his pleadings in terms of the rules.
It is so I do not have an application for an amendment before me and
the
cases I have referred to above were concerned with an amendment
in terms of Uniform
rule 28.
Mr
Naidoo
had
urged me in determining this issue to have regard to the defendants'
initial plea. I am unable to agree with Mr
Naidoo
.
I say so because that plea was overridden by the defendants' amended
plea. Nothing can therefore resuscitate it. However, I agree
with Mr
Naidoo
that I should not elevate form over substance and should not allow
technicalities to frustrate the achievement of real and substantive

justice between the parties. It is well known that rules are made for
the courts and not that the courts are established for rules.
The
primary function of the rules of courts is the attainment of
justice.
[38]
This case is very
unique in that the first defendant confirmed in the plea being the
MEC for Safety and Security. The MEC for Safety
and Security is a
non-existent entity. The evidence was led in this case by all the
parties and all the issues fully ventilated.
It was only after this
court raised the issue of the citation of the first respondent that
the parties were alerted to the misdescription
of the first
defendant. I cannot agree with Mr
Sibeko
that
the misdescription of the first defendant at this stage has to be
corrected through an amendment in terms of Uniform
rule 28.
The
approach as proposed by Mr
Sibeko
will not facilitate the attainment of justice between the parties
instead it will frustrate it. Such an approach is one which elevates

form over substance. I decline to follow such approach.
[92]
In the circumstances, having exercised my discretion in terms of s
173 of the Constitution, I find that reference
to the MEC for Safety
and Security is in fact a reference to the Minister of Police, who at
the time the summons was issued in
this case, was known as the
Minister of Safety and Security.
Costs
[93]
On 5 August 2024, after I had reserved judgment in this matter, I was
in doubt whether costs consequent upon
the employment of two counsel
were called for in this case in the event I found for the plaintiff.
I then called the parties to
deliver further heads to address me on
this issue. The plaintiff filed his heads of argument on 13 August
2024, wherein Mr
Naidoo
urged me to allow costs consequent
upon the employment of two counsel having regard to the importance of
the issues I had to decide,
the complexity of the legal and the
factual issues to be decided, the quantum of the claim and the volume
of the evidence to be
considered.
[94]
The defendants only filed their heads of argument on 26 September
2024, more than a month after I requested
parties to do so. I have
considered the defendants' submissions, as the plaintiff would not be
prejudiced by the late delivery.
Mr
Sibeko
submitted that this
matter was not complicated to warrant the costs of two counsel.
[95]
Admittedly the value of the plaintiff's claim is substantial in that
the total quantum of the plaintiff's
claim is a sum of R3 260 000.00.
However, the plaintiff's case was only set down on the issue of
liability. So, the value of the
plaintiff's claim cannot play a role
at this stage. While this case is clearly important to the plaintiff,
however, it did not
involve complex issues. I am therefore not
satisfied that this matter warranted the employment of two counsel
and accordingly I
will not allow costs consequent upon the employment
of two counsel. Mr
Naidoo
argued that I should award costs in
this on scale C. In my view, taking into account the peculiar
circumstances of the case as
alluded to above the most appropriate
scale of counsel's costs is scale B. The general rule is that the
costs should follow the
event. I do not see any reason why I should
deviate from this rule. The plaintiff might have been partially
successful but I am
not convinced that the defendants had any
justifiable reason to defend the claim for assault.
Order
[96]
In the result, I make the following order:
1.
The plaintiff's claim for unlawful arrest and detention (claim1); and
malicious prosecution
(claim 3) against the defendants is dismissed;
2.
The defendants are found 100% liable for the plaintiff's proved or
agreed costs in respect
of assault, claim 2; and
3.
The defendants are ordered to pay the plaintiff's costs of suit
including the costs of counsel
on scale B.
CHITHI
AJ
APPEARANCES
Counsel
for the Plaintiff:
V.M.
Naidoo SC with K. Brimiah
Instructed
by:
Sergia
Brimah & Associates
Counsel
for the Defendant :
V. G.
Sibeko
Instructed
by:
State
Attorney (Durban)
Heard
on:
27,
28 May, 17 and 18 July 2024
Date
of Judgment:
18
October 2024.
[1]
Stellenbosch
Farmers' Winery Group Ltd. and another v Martell et Cie SA and
others
2003
(1) SA 11
(SCA) para 5 (Stellenbosch Farmer's Winery).
[2]
Pleadings Bundle: page 41: paragraph 3.2(a).
[3]
Pleadings Bundle: page 42: paragraph 3.2(f).
[4]
Liability Bundle: page 42.
[5]
Liability Bundle: page 2.
[6]
Liability Bundle: page 37.
[7]
Bundle of hospital records: page 10.
[8]
Liability Bundle: page 3 - 6.
[9]
Liability Bundle: page 7 - 11.
[10]
Liability Bundle: page 20.
[11]
Liability Bundle: page 18.
[12]
Liability Bundle: page 45 - 46.
[13]
Liability Bundle: page 38.
[14]
Minister
of Safety and Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) para 11.
[15]
Van Wyk
and another v Minister of Police and another
[2016] ZAGPPHC 942 para 16.
[16]
Scheepers
v Minister of Safety and Security
2015 (1) SACR 284
(ECG) para 17 (
Scheepers
).
[17]
Scheepers
para 21.
[18]
Stellenbosch
Farmer's Winery
para 5.
[19]
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) para
11.
[20]
S
v Mafaladiso en andere
2003 (1) SACR 583
(SCA) at 593E-594H.
[21]
Mvu v
Minister of Safety and Security
2009 (6) SA 82
(GSJ) para 10.
[22]
Khumalo
v Safety and Security
[2015]
ZAKZDHC 48 para 14 quoting with approval from
Minister
of Law and Order and others v Hurley and another
1986 (3) SA 568
(A) at 589E-F.
[23]
Bennett
v Minister of Police
1980 (3) SA 24
(C) at 34-35.
[24]
Mabaso
v Felix
1981
(3) SA 865
(A) at 873E-874E (Mabaso).
[25]
Moghamat
v Centre Guards CC
[2004] 1 All SA 221 (C).
[26]
Mabaso
at 874; Zealand v Minister of Justice
2008 (6) BCLR 601 (CC).
[27]
Stellenbosch
Farmers' Winery
para 5.
[28]
R v
Blom
1939 AD 188
at 202-203.
[29]
Minister
for Justice and Constitutional Development and others v Moleko
[2008] ZASCA 43
;
2009 (2) SACR 585
(SCA) (
Moleko
);
Patel v
National Director of Public Prosecutions and others
2018 (2) SACR 420 (KZD).
[30]
Moleko
para 20.
[31]
Relyant
Trading (Pty) Ltd v Shongwe and another
[2006] ZASCA 162
;
[2007] 1 All SA 375
(SCA) para 14.
[32]
Moleko
para 57.
[33]
Moleko
paras 61-63.
[34]
City of
Tshwane Metropolitan Municipality v Afriforum and another
[2016] ZACC 19
;
2016 (6) SA 279
(CC);
2016 (9) BCLR 1133
(CC) para
18.
[35]
Four
Tower Investments (Pty) Ltd v Andre's Motors
2005
(3) SA 39
(N) para 29 (
Four
Tower Investments
).
[36]
Barnard
and others NNO v Imperial Bank Ltd and another
2012 (5) SA 542
(GSJ) paras 29 - 32.
[37]
Essence
Lading CC v lnfiniti Insurance Ltd and another
2024 (2) SA 407
(GJ) paras 60 - 70.
[38]
Mukaddam v Pioneer Foods (Pty) Ltd
2013 (5) SA 89
(CC) paras 31 -
32.