IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 5171/2017
Reportable Yes/No
In the matter between:
SIYANDA HOLOLO Plaintiff
and
MINISTER OF POLICE 1st Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Defendant
JUDGMENT
Cengani-Mbakaza AJ
Introduction
[1] The plaintiff instituted an action against the Minister of Police (the first defendant) and the National Director of Public Prosecutions (the second defendant), claiming damages in the amount of R3,000 000 (Three Million Rand) for the alleged unlawful arrest and detention. The arrest was effected
by the members of the South African Police Services (SAPS) who were acting within
the course and scope of employment.
\.D/11
a
~ .t
~ .
• ,r
' ~ &.,~
::t. ( J/ SI_)\)
[2] At a pre-trial conference held on 25 July 2024, the parties agreed that the
defendants would bear the duty of beginning and that there would be no separation
of issues between the merits and the quantum. This agreement was subsequently
ratified at the commencement of the court proceedings.
The pleadings
[3] In pursuit of the claim for unlawful arrest and detention against the first
defendant, the plaintiff alleges that SAPS lacked justification for arresting him, as no
reasonable grounds existed to suggest that he committed the alleged crime of
murder. Therefore, SAPS acted in bad faith, by failing to exercise its discretion in the
plaintiff’s favour. Consequently, the plaintiff asserts that his arrest and detention from
09 to 12 October 2015 was unlawful and wrongful.
[4] Further to the plaintiff’s claim, on 12 October 2015, he appeared in the
Mthatha Magistrate’s Court, where the State opposed his release on bail and
requested a postponement. This led to multiple postponements until he was
eventually released on bail on 12 November 2015.
[5] The plaintiff claims therefore that his detention from 12 October to 12
November 2015 was unlawful, malicious and without justification, alleging that the
first defendant improperly influenced the second defendant to oppose bail and
sought postponement. Consequently, so he claims, the detention was carried out
with malice, arbitrarily, capriciously, unreasonably, and with the sole intention of
injuring him.
[6] In their plea, the defendants deny that the plaintiff’s arrest was wrongful or
unlawful. Furthermore, they aver that the plaintiff was facing a charge of murder, for
which he had been positively identified.
The evidence
[7] The defendants relied on the testimony from three key witnesses: Ms Monica
Siziwe Ntozini (Ms Ntozini), Constable Bonga Stofile (the arresting officer) and Mr
Sicelo Mbaleki (the Public Prosecutor). Their collective evidence revealed that
Manana’s death (the deceased) resulted from an assault by the plaintiff and an
unidentified co-worker at Zonwabele Tavern, where the plaintiff and the unidentified
co- worker worked as security guards.
[8] According to Ms Ntozini, an eyewitness, on 26 September 2015, a dispute
erupted between the deceased, the plaintiff and his co-worker. The deceased
became aggressive throwing a bottle at the plaintiff and his co-worker, and then fled.
The plaintiff together with his co-worker chased and assaulted him until he fell. While
he lay on the ground, the assault continued through kicking. The deceased bled
profusely until bystanders intervened, prompting the plaintiff and the co-worker to
leave the scene. Ms Ntozini observed that the deceased was extremely cold.
[9] She knew the deceased as a homeless individual who was currently in the
care of Mr Matshaya, a church Bishop. After witnessing the incident, she contacted
Bishop Matshaya and called an ambulance, which transported the deceased to the
hospital.
[10] Ms Ntozini later learned of the deceased’s passing through Bishop
Matshaya’s announcement on Unitra Community Radio (UCR FM) where he was a
broadcaster. After hearing about the deceased’s death, she reached out to the
caregiver at Bishop Matshaya’s home, which provided shelter to homeless
individuals including the deceased. She contacted the caregiver to share her
eyewitness account of the incident. She subsequently provided a formal statement to
the police detailing her observations. Following the deceased’s death, Ms Khikhi
Ntombentsha ( the deceased’s mother ) filed charges at the police station and made
a statement. In her statement, she explained that she only went to the hospital on 30
September 2015 after being informed that her son had been admitted. She relied on
what she had been informed that her son was brutally assaulted in town. Although
she was asked to identify the deceased’s body, she only saw his face and could not
observe the injuries on his body.
[11] Upon reviewing the case docket, which included the deceased’s mother’s
statement and Ms Ntozini’s account, the arresting officer concluded that the
deceased’s death resulted from the assault inflicted by the plaintiff and his co-
worker. This realisation led him to recognise that a murder charge had a basis. He
subsequently interviewed Ms Ntozini who confirmed her acquaintance with one of
the assailants.
[12] The evidence further revealed that Ms Ntozini had proactively taken a
photograph of the plaintiff to preserve his identity and facilitate sharing with the
authorities. She subsequently escorted the arresting officer and his colleague to
positively identify the assailant, leading to the plaintiff’s arrest.
[13] On 12 October 2015, the date of the plaintiff’s first appearance before the
court, the Public Prosecutor examined the docket contents, and based on the
evidence presented, formed a prima facie opinion that the plaintiff had a case to
answer thereby warranting the enrolment of the murder charge under Schedule 5 of
the Criminal Procedure Act1 (CPA). On the same day, the plaintiff appeared in court,
and the Magistrate ordered his detention pending the completion of bail profiling,
which the public prosecutor explained included fingerprinting, background checks
and address verification. The further detention also aimed at enabling assessment of
previous convictions, pending matters and eligibility for bail release.
[14] Since the plaintiff opted to be represented by Legal Aid, South Africa, his
legal representative was present during the proceedings, whereupon the matter was
postponed for seven days to allow for the completion of the bail profiling. The public
prosecutor distinguished between the bail information sheet and stated that it
contains preliminary information provided by the accused during arrest and bail
profiling is more of a comprehensive process. The bail profiling is typically delayed
due to the police station’s busy schedules.
[15] Probably due to the police station’s work schedule, the matter was postponed
twice to await the bail profiling, so he explained. The Public Prosecutor testified that
in schedule 5 offences, the burden lies with the accused to demonstrate that the
interests of justice permit their release. Typically, a bail application may be heard on
1 Act 51 of 1977.
the first day of appearance, but in this case, insufficient information precluded an
eligibility assessment. Consequently, the court delayed proceedings pending the
completion of profiling.
[16] The Public Prosecutor further emphasized that, in Schedule 5 offences, bail
can only be granted by the court, following a hearing of evidence. Police do not have
the authority to release accused persons in such cases. According to the Public
Prosecutor, the case was withdrawn on 30 March 2016, due to the post-mortem’s
report’s conclusion that the deceased’s injuries resulted from a motor vehicle
accident.
[17] The plaintiff testified that, although he was not an employee of the tavern at
the time, he was present during the altercation. He clarified that he intended to
intervene in the fight between Mr Sinovuyo Ngaleka and Mr Sikhumbuzo Dlamini
who were chasing and assaulting the deceased. According to the plaintiff, the
deceased instigated the fight by assaulting Mr Ngaleka with a bottle. He stated that
he witnessed the pair continuously assaulting the deceased who had fallen. Despite
being helpless, the deceased eventually got up and left the scene. The plaintiff
confirmed the intervention of the bystanders.
[18] The plaintiff alleged that his arrest was unlawful citing the police’s failure to
inform him of his Constitutional rights at the time of arrest. He claimed that his rights
were only explained after he was detained in prison. Furthermore, during his time at
the Madeira police station, he was not informed of the reasons for his detention and
was not afforded an opportunity to state his side of the story. Had this been done, it
would have allowed the police an opportunity to assess whether his arrest was
warranted, so he testified.
[19] The plaintiff testified that since the charge against him was assault, the police
could have employed alternative measures to bring his attendance to the court rather
than effecting immediate arrest. He further testified that the police and the Public
Prosecutor misrepresented facts to the court and wrongly exaggerated the charge
which led to his prolonged detention. The correct charge was assault, so he
maintained.
[20] He further testified that the detention environment was inhumane
characterized by unsanitary conditions with filthy surroundings, dirty blankets
infested with lice, frequent assaults among detainees, and a pervasive,
overwhelming stench of blood.
Issues
[21] The primary issue for determination is whether the plaintiff’s arrest and
detention on a charge of murder was justified. Additionally, this court must assess
whether in arresting the plaintiff, the arresting officer objectively exercised his
discretion. Furthermore, it must be determined whether the post-detention court
proceedings were legally justified. Lastly, this court must consider whether the SAPS
and the Prosecutors acted in malice in motivating the plaintiff’s detention post-court
appearance.
The legal principles
[22] Our jurisprudence boasts a rich legacy of precedence that vigorously
safeguards the freedom and security of persons. This is rooted in the Constitution of
the Republic of South Africa, which enshrines the right to be free from arbitrary
deprivation of liberty without just cause.2 In instances where the arrest is deemed
necessary, the onus rests with the arrestor to demonstrate that the arrest was
objectively justifiable and lawful.3
[23] Pursuant to section 40(1)(b) of the CPA, a peace officer is empowered to
arrest a suspect without a warrant in circumstances where there is reasonable
ground to believe that the suspect has committed a Schedule 1 offence, excluding
the offence of escaping from lawful custody.4
2 Section 12, Act 108 of 1996, The Constitution.
3 Minister of Law and Order and Others v Hurley and Another 1986(3) SA 568 AD at 589 E -F;
Minister of Law-and-Order v Matshoba1990 (1) SA 280 AD at 284.
4 For an arrest to be lawful, three essential jurisdictional facts must be met: (1) the arresting officer
must be a peace officer; (2) the arresting officer must have entertained a reasonable suspicion that a
Schedule 1 offence had been committed (3) such suspicion must be grounded in reasonable
circumstances
[24] The Mabona5 ruling, which is paraphrased below, clarifies the standard for
forming a reasonable suspicion. According to Jones J, this standard is objective and
involves three key considerations: to begin with, the enquiry is whether a reasonable
person in the arrestor’s position and having the same information would have
considered that there were ‘good and sufficient grounds’ for suspecting that the
arrestee had committed a Schedule 1 offence; additionally, the arrestor is required to
verify the information wherever possible; furthermore, while section 40(1) (b) of the
CPA requires ‘suspicion’ and ‘not’ certainty’, the suspicion must be grounded on
reliable information rather than being arbitrary or speculative.
[25] Upon establishing the jurisdictional facts contemplated in section 40(1)(b) of
the CPA, the arresting officer is vested with the discretion to decide whether to arrest
the suspect, thereby exercising his power. The Sekhoto6 matter establishes
important boundaries on the exercise of discretion in forming a reasonable suspicion.
The boundaries of discretion in forming a reasonable suspicion, as articulated by
Harms DP in paragraphs 42-44, can be paraphrased as follows:
1. Peace officers are afforded a measure of discretion in exercising their
powers, provided that their decisions remain rational and within the bounds
of reasonableness,
2. The standard is not violated merely because an officer exercises their
discretion in a way that differs from the court’s notion of the optimal
approach.
3. The applicable standard is not one of perfection or optimality, but rather
rationality. If the officer’s decision falls within a reasonable range of
options, the standard is satisfied, even if it is not the best possible choice
in hindsight.
5 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654, 658 E-H
6 2011 (1) SACR 315 (SCA).
4. The power to arrest is intended solely to facilitate the administration of
justice, by bringing the suspect before the court. However, the arrest is
merely one step in this broader process which ultimately seeks to
determine guilt or innocence.
5. After the arrest, the suspect must be brought before a court as soon as
reasonably possible. Thereafter, the authority to detain the suspect further
lies within the discretion of the court, which will determine whether the
continued detention is justified.
6. The discretion to detain a suspect is subject to a comprehensive statutory
framework. If a peace officer were only permitted to arrest a suspect when
satisfied that he might not attend trial, the statutory framework would
severely be undermined. It is untenable to imply that a statute (law)
restricts the power to arrest when such limitation is not explicitly stated in
the statute (law).
7. The arresting officer is not required to determine whether the suspect
should be detained pending trial, that decision rests with the court. In most
cases, it is a straightforward matter to bring the suspect before the court,
enabling it to make that determination.
8. The peace officer’s enquiry is not focused on determining the best means
of bringing the suspect to trial, but rather on whether the case warrants a
court decision. The rationality of the arresting officer’s decision depends on
the specific facts of the case. However, in cases involving serious crimes,
such as those listed in Schedule 1, it is unlikely that an arresting officer
would be criticized for arresting a suspect to bring him before court.
The parties’ legal submissions
[26] The court expresses its appreciation for the diligent efforts of both parties in
submitting the heads of argument in a timely matter, which significantly contributed
to the expeditious finalisation of these proceedings. Notwithstanding this, it is not the
court’s intention to reproduce the entirety of this judgment by exhaustively
addressing every issue raised in the heads of argument.
[27] Most notably, Ms Nhantsi, counsel for the plaintiff, contended that the
arresting officer neglected to verify the information available to him prior to arresting
the plaintiff. Specifically, she argued that the officer failed to interview the plaintiff to
ascertain whether he had participated in the alleged assault.
[28] The deceased passed away on 28 September 2015, due to head injuries
sustained in a motor vehicle accident, Notably, this crucial information was not
verified. Relying on Sekhoto precedent, counsel contended that the decision to
arrest the plaintiff given these circumstances was inherently irrational.
[29] She maintained that the arresting officer should have employed less invasive
methods to arrest the plaintiff. By failing to do so, he failed to exercise his discretion
in an objective manner.
[30] Moreover, Ms Nhantsi argued that the second defendant should be held liable
for the unlawful post-detention court appearance. This liability stems from the second
defendant’s failure to discharge her legal duty, specifically her obligation to inform
the court about the weakness in the state’s case which would enable the court to
exercise its discretion and potentially release the plaintiff either on bail or on warning.
[31] Conversely, Mr Mnqandi, counsel for the defendants raised several critical
points regarding the plaintiff’s evidence asserting that he failed to adequately cross-
examine the defendants’ witness on key issues. He further contended that the post-
detention court appearance was as a direct result of a court order, and therefore
could not be attributed to the defendants. In essence, Mr Mnqandi submitted that
there is no evidence to suggest that the defendants’ actions were unlawful.
The court’s analysis of evidence
[32] Our courts have consistently held that when an arrest or detention is effected
by or at the instance of a public official or authority, the responsible official must
justify the arrest or detention. This justification requires the official to point to the
specific statute or statutory regulation or statutory regulation conferring the power to
arrest or detain; demonstrate that they acted within the scope of the power
conferred; and show that they observed the relevant provisions of the statute or
regulations that empowered them to take such action.7
[33] In this instance, the arresting officer’s power to arrest without a warrant is
conferred by section 40(1) (b) of the CPA. Furthermore, murder is classified as
Schedule 1 and 5 of the CPA. It must be emphasized that in the present case, the
developments after the arrest are irrelevant in assessing whether the arresting
officer’s suspicion was reasonably justified at the time of arrest. Accordingly, it is
pertinent to note that the post-mortem report, which contradicted the evidence of
assault and subsequently led to the withdrawal of the charges against the plaintiff,
constitutes a development that occurred after the plaintiff’s arrest.
Arrest and detention from 09 to 12 October 2015
[34] At the time of the arrest, the arresting officer’s assessment was based on the
statement of the deceased’s mother, who reported that her son had been murdered.
A murder docket had already been opened and Ms Ntozini’s statement had already
been obtained. During interviews with the arresting officer, Ms Ntozini consistently
informed the arresting officer that the plaintiff and his co-worker had severely
assaulted the deceased, leaving him lying at the scene bleeding. The fact that the
plaintiff was not employed at the tavern at the time is irrelevant. What is pertinent is
that he was present at the scene where the deceased was severely assaulted.
[35] Another significant consideration is that the arresting officer exercised
cautionary measures to ensure that the correct person was arrested. At the time of
the arrest, he was accompanied by his colleague and Ms Ntozini who had previously
witnessed the assault and obtained a photograph of the suspect. Ms Ntozini
positively identified the plaintiff as the suspect pointing him out to the police. It is
7 Madyibi v Minister of Police (4132/17) [2020] ZAECMHC 11;2020(2) SACR 243 (ECM) (17 March
2020).
therefore concluded that the suspicion that the plaintiff had committed a crime of
murder was grounded on reasonable and solid circumstances. Consequently, the
argument positing that the arresting officer should have verified the reliability of the
information at his disposal is without merit.
[36] An argument was raised that the arresting officer failed to exercise his
discretion objectively when arresting the plaintiff and that less invasive methods of
arrest should have been employed. At the time, the arresting officer was dealing with
a serious crime of murder, as reported to the police. According to the docket
statements and interviews, there was no indication that the deceased was involved
in a motor vehicle accident. The available information suggested that the deceased
died shortly after being brutally assaulted by the plaintiff and his co-worker after he
was taken to hospital. Therefore, the arresting officer had no reason to anticipate
that the post-mortem report would contradict the evidence possessed at the time of
the arrest.
[37] Pursuant to the principles established in the Sekhoto matter, it was not
reasonable to expect the arresting officer to employ less invasive means of arrest
given the seriousness of the murder charge. In my opinion, the arresting officer’s
actions in arresting the plaintiff, informing him of his Constitutional rights and
detaining him were motivated solely by the need to bring him to justice. Therefore, it
was for the court to exercise its discretion in determining whether the plaintiff should
be further detained.
Detention from 12 October to 12 November 2015
[38] The same rationale applies to the Public Prosecutor who enrolled the case.
He was duty bound to consider the prima facie evidence at his disposal and enrol the
matter. As he could not have anticipated the post-mortem’s contradictory findings, by
virtue of powers vested in him, he decided that a murder charge was appropriate and
not assault as suggested by the plaintiff’s counsel. The National Prosecuting
Authority (NPA) is a single and independent body that derives its powers from the
Constitution. In terms of Section 179(2) of the Constitution, the NPA has the power
to institute and conduct criminal proceedings on behalf of the state and to carry out
the necessary functions incidental to instituting criminal proceedings.8 The NDPP’s
duty is to hold the individuals accountable for their actions, deter crime and protect
the public from harm. She must maintain a fair and just society and play a critical role
in ensuring that justice is served for all. This mandate must be exercised without
fear, favour or prejudice.
[39] This then triggers a question on whether the defendants improperly used the
state’s legal machinery to unjustly and maliciously deprive the plaintiff of his personal
liberty. The issue of malicious deprivation of liberty was addressed by the Supreme
Court of Appeal (SCA) in Minister of Police v Nontsele.9 At paragraph [37], Dambuza
JA (with Makgoka and Mabindla-Boqwana JJA concurring) held:
“Malicious deprivation of liberty occurs when lawful restraint is inflicted upon a
person’s liability by means of an act of law, unjustifiably, with intention to
injure, and with improper motive. Neethling and Potgieter describes it as
follows:’ Unlike wrongful deprivation of liberty, where the result complained of
must have been caused without justification by the defendant himself or some
person acting as his agent or servant, the conduct in the case of malicious
deprivation of liberty takes place under the guise of a valid judicial process.
The defendant makes improper use of the legal machinery of the state, either
through a policeman acting on his own discretion or through a valid warrant in
depriving the plaintiff of his liberty. The actual deprivation of liberty is
consequently not carried out by the defendant himself or by his servant or
agent but by the machinery of the state through a valid judicial process.
As a result, the plaintiff will have to prove the following in order to succeed in
an action based on malicious deprivation of the liberty; that the defendant
instigated the deprivation of liberty; that the instigation was without reasonable
8 Section 20of the National Prosecuting Authority Act provides-
‘(1) The power as contemplated in section 179(2) of the Constitution and all relevant sections of the
Constitution, to-
(a) institute and conduct criminal proceedings on behalf of the State.
(b) carry out the necessary functions incidental to the instituting and conducting criminal
proceedings; and
(c) discontinue criminal proceedings, vests in the prosecuting authority and shall. For all
purposes exercised on behalf of the Republic.’
9 (547/2022) [2024] ZASCA 137 (11 October 2024).
and probable cause; and that the defendant acted with animo iniuriandi.
These requirements are similar to those of malicious prosecution.” [footnotes
omitted]
[40] In Nontsele’s case10, the SCA went further to explain that the test of breach of
a legal duty, or wrongful conduct on the part of the police and the Minister plays no
part in the inquiry into the allegations of malicious and collusion-driven detention.
[41] Therefore, in the present instance, the inquiry is whether the plaintiff had
proved animus iniurandi on the part of the members of the defendants. Except to
reiterate that after the enrolment of the case, the subsequent postponements were
the direct result of the court orders necessitating the gathering of information prior to
the bail application hearing, the plaintiff failed to adduce evidence to prove that this
process was malicious due to the defendants’ actions. Accordingly, Ms Nhantsi
conflated the test applicable in the breach of a legal duty owed to the plaintiff and the
inquiry that is applicable to the allegations of malicious and collusion-driven
detention
[42] Even if this court is incorrect in its finding on this point, there is no evidence to
suggest that there was a breach of the legal duty by the defendants against the
plaintiff. Section 60(11) (b) of the CPA justifies detention in cases that are classified
under Schedule 5. This provision reads:
“Notwithstanding any provisions of this Act, where an accused is charged with
an offence referred to –.
(b) in Schedule 5, but not Schedule 6, the court shall order that the accused
be detained in custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do so,
adduces evidence which satisfies the court that the interests of justice permit
his release”
10 Footnote 9 above (at paragraph 39).
[43] The word ‘shall’ demonstrate that the detention is peremptory, and the court
can only release the accused after having heard the evidence and exercising its
discretion based on the circumstances of the case. In this scenario, the onus was
placed upon the plaintiff to adduce evidence to prove that the interest of justice
permitted his release. At the plaintiff’s first appearance in court, and prior to the
obtainment of the post-mortem report, there was strong prima facie evidence that he
had committed the crime of murder.
[44] The acquisition of bail information, a step that was comprehensively explained
by the Public Prosecutor, was crucial in considering the plaintiff’s release.
Throughout the postponements, he was legally represented thereby ensuring that
the process leading to his bail application unfolded fairly. It is noteworthy that,
generally, in Schedule 5 offences, even if the state does not oppose bail, the court
has the power to request reasons for the lack of opposition.11 The court may then
exercise its discretion, give the matter a reasonable postponement, and require more
information before deciding whether to release the accused on bail or warning. Due
to the inquisitorial nature of these proceedings, the judicial intervention is significant,
and consequently, the decision to further detain the accused is not in the hands of
SAPS and or the Public Prosecutor. Therefore, in the case under consideration,
there is no legal basis to challenge the plaintiff’s further detention which ultimately
spanned for a period of one month.
[45] The Constitution mandates police officers to prevent, investigate and combat
crime, maintain public order, safeguard citizens and uphold the law.12 The South
African Police Act13 enables officers to exercise their authority and fulfil their legally
granted responsibilities, subject to the Constitutional parameters and respect for
individuals’ fundamental rights. Conversely, failing to effect justified arrests and
detentions may erode public trust in the criminal justice system. I, therefore,
conclude that the arrest and subsequent detentions of the plaintiff were lawful. It then
follows that the plaintiff’s claims must fail.
11 Section 60(2) of the CPA provides: “In bail proceedings the court -(d) shall, where the prosecutor
does not oppose bail, in respect of matters referred to in subsection 11(a) and(b), requires of the
prosecutor to place on record the reason for not opposing the bail application.”
12 Section 205 (3) of the Constitution.
13 Act 68 of 1995.
Order
[46] The plaintiff’s claims are dismissed with costs on Scale “A”, as contemplated
under Rule 67A read with Rule 69 of the Uniform Rules of Court.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff : Adv N.O Nhantsi
Instructed by : N Golifili Inc.
Mthatha
Counsel for the Defendant : Adv N. P. Mnqandi
Instructed by : State Attorney
Mthatha
Heard on : 15 November 2024
Judgment Delivered on : 10 December 2024