SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 1191/2022
In the matter between:
M[...] J[...] Plaintiff
and
MINISTER OF POLICE 1st Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] On 07 November 2020 Mr Nguye Winas Ngcora was found murdered at his
home . He was last seen on 06 November 2020 when he and other members of the
community , including the plaintiff, left a burial association meeting that was held in
Matyengqina Locality.
[2] On 26 January 2021, one Samkelo Mqetheba (Mqetheba) was arrested in
connection with the murder of Mr Ngcora ( the deceased ). The plaintiff was arrested on
29 May 2021, five months later, at Matheko Locality by the members of the first
defendant in connectio n with the same incident . When he was arrested , he was
attend ing a funeral service of a fellow member of his community . He was subsequently
detained at the Bityi police station and was caused to appear in the Bityi Magistrates’
Court on 01 June 2021 where he was charged with murder together with Mqetheba. On
his first appearance in court, his application for release on bail was postponed. He was
eventually granted bail on 24 June 2021. Charges against him were withdr awn by the
prosecutor in the employ of the second defendant on 09 December 2021 due to
insufficient evidence to secure a conviction against him.
[3] He now holds the first defendant liable for damages in the amount of
R 1000 000.00 , for contumelia resulting from his arrest and subsequent detention from
29 May 2021 to 24 June 2021 , alleging that they were unlawful.
[4] Against the second defendant, the plaintiff claims damages in the sum of
R1 800 000.00 as and for damages resulting from his prosecution from his first
appearance in court until 09 December 2021. He alleges that his prosecution was
malicious. The plaintiff’s claim s are resisted by the first and second defendants.
The pleadings
[5] The plaintiff pleaded that when the members of the first defendant arrested and
detained him without a warrant on 29 May 202 1, they acted unlawfully in that they had
no reasonable suspicion that he had committed a n offence listed in Schedule 1 of the
Criminal Procedure Act 51 of 1977 (the CPA) . They arrested him based on false
allegations which he disputed from the onset , and his arrest was not with the intention of
bringing him before a court of law. He was arrested in full view of the members of the
public while he was attending a funeral service of a member of his community.
[6] He pleaded, in the alternative, that in deciding to arrest him the arresting officer
failed to properly exercise her discretion and acted without having due regard to all t he
circumstances of the case.
[7] Regarding his detention after his arrest, the plaintiff pleaded that his arrestor
failed to properly exercise her discretion by considering other alternative ways of
securing his attendance in court; and she failed to pro vide the prosecutor with sufficient
bail information timeously. As a result of this failure, the plaintiff was further detained
after his first appearance in the Bityi court as his bail was opposed, and it was only
granted on 24 Ju ne 2021.
[8] The plaintif f asserts that his arrest and detention interfered with his right to liberty,
were injurious to him, they impaired his dignity, embarrassed and humiliated him ; and
caused him too much grief. As regards the conditions in which he was detained, he
pleaded th at he was placed in an overcrowded cell with no privacy. It had appalling
ablution facilities and had a bad smell. He was caused to sleep on a mattress on a wet
cement floor. He was rape d by one of the inmates and his sleep was disturbed at night
as the cell light was on throughout the night.
[9] Against the second defendant the plaintiff further plead ed that he was maliciously
prosecuted by her members in pursuit of the unlawful actions o f the members of the first
defendant. In this regard, he allege d that the prosecutor who prosecuted him in the Bityi
court set the law in motion in circumstances where he ha d no reasonable belief in the
truth of the charge that he preferred against him. He had no reasonable and probable
cause to prosecute him; he directed his will to prosecut ing him without reasonable
grounds for believing that he committed the offence that he was charged with; and
those charges were withdrawn after several appearances in c ourt due to insufficient
evidence.
[10] In defence to the plaintiff’s claim , the first defendant pleaded that his arrest and
detention w ere justified in terms of section 40(1)(b) and section 50(1)(a)1 of the CPA , in
that he was reasonably suspected of comm itting murder, an offence listed in Schedule 1
of the same Act .
[11] The second defendant ’s defence is that the members of the first defendant
opened a criminal case docket against the plaintiff based o n reasonable suspicion that
he had c ommitted murder , and he was accordingly caused to appear before a court of
law. His continued detention after his appearance in the Bityi court was in keeping with
the provisions of section 50 of the CPA and the fact that he was charged with a serious
offence.
[12] In disputing the allegation of malice on the part of her members, the second
defendant pleaded that when her members were presented with the docket by the
members of the first defendant, it contained statements of witnesses made on oath in
which they implicated the plaintiff in the murder of the deceased. The prosecutor who
enrolled the case in t he district court had reasonable belief in the truth of the charges
against him based on the evidence contained in the docket. The prosecution of the
plaintiff was in line with the National Prosecuting Authority’s policy and the CPA.
[13] In a further pre-trial minute signed by the parties on 28 August 2024, the y agreed
that in arresting the plaintiff the investigating officer of the case acted on Mqetheba ’s
confession in which he implicated the plaintiff in the commission of murder, as well as
oral information that was given to her by witnesses. Subsequent to his arrest on 29 May
2021, the plaintiff was brought to court for his first appearance on 01 June 2021. He
remained in detention for 23 days. The parties further agreed that in enrolling the matter
in the Bityi court, the prosecutor in the employ of the secon d defendant set the law in
1 Section 50(1)( a) reads: ‘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 expressl y mentioned in the warrant.’
motion and opposed the plaintiff’s release on bail, whereupon he was only released on
24 June 2021.
The trial
[14] The trial of this matter proceeded only on the issue of liability following an order
that I granted , by agreement between the parties, separating the merits of the plaintiff’s
claim from quantum of damages .
[15] The plaintiff b ore the onus to prove his claim of malicious prosecution against the
second defendant. Since the first defendant admitted the plaintiff’s arrest and detention ,
it bore the onus to justify them. At the trial of the case, t he plaintiff accepted the duty to
being leading evidence since he h ad to prove his claim against the second defendant.
[16] The plaintiff was the only witness in his case. Sgt Ndlebe testified on behalf of
the first defendant as the police officer who arrested the plaintiff . The second defendant
adduced the evidence of the public prosecutors who were seized with the docket at
different stages of the plaintiff’s appearance in court until 09 December 2021 when
charges against hi m were withdrawn. Documents that were discovered by and between
the parties, namely the contents of the police docket and the record of proceedings in
the Bityi court and Mthatha Regional Court were also adduced in evidence.
(a) The plaintiff ’s evidence
[17] The plaintiff testified that he was a member of the same burial association as the
deceased , but he did not know him before the murder, nor did he know that he was the
burial association ’s treasurer. In as much as he attended the association ’s meeting on
the day of the deceased’s murder, he did not see him but heard that he was present at
the meeting. According to the plaintiff, the deceased may have been one of the persons
with whom he t raveled in the vehicle that conveyed them from the venue of the meeting
to their various destinations in Matheko Locali ty. He confirmed having s ummoned
Mqetheba to fetch him and other attendees of the burial society meeting.
[18] On the day of his arrest , he was seated at the podium of the funeral service
venue and dressed in his church regalia when four police officers approached him,
manhandled him; and removed him from the podium. The police drove him towards the
gate of the premises where the funeral s ervice was taking place and put him in the ir
vehicle. He was taken to the Bityi police station where he was charged with murder and
subsequently detained. He denied that one police officer asked him aside at the venue
of the funeral service and advised him of his arrest and reasons therefor in the presence
of his bother.
[19] He was caused to appear in the Bityi court o n 31 May 2021 . His fellow church
members and in -laws were present in court on his first appearance , and this caused him
much grief. At his first appearance his release on bail was opposed and he was
remanded in custody until he was granted bail on 24 June 2021 . From this point, he
attended proceedings in relation to his case alongside Mqetheba until he was told on 09
December 2021 that charges against him were withdrawn. He was caused to continue
appearing in Bityi c ourt since first appearance despite the fact that there was no
evidence linking him to the murder of the deceased. As a result of the charge s that he
faced in court he was excommunicated as a member of his church.
[20] Explaining why he was arrested five months after the murder of the deceased ,
the plaintiff testified that h e only came back from Lusikisiki where he worked in
November 2021. He denied what was put to him that Sgt Ndlebe decided to arrest him
because he evaded his arrest . He testified that he only heard once from his child while
he was at work in Lusikisiki that the police were looking for him . This was during
November 2020 when he was close to c oming back home. He did not submit himself to
the police on arrival at his home because he believed that he had no obligation to do so ,
and since they were the ones who were looking for him it was their duty to come to him.
[21] On behalf of the second defendant, it was put to the plaintiff that wh en he first
appeared in the Bityi court, he was not prosecuted but his case was ‘enrolled as a pre -
trial procedure ’. Furthermore, the prosecutor who enrolled it had reasonable belief in the
truth of the charges against him based on the evidence contained i n the docket which
included a confession made by Mqetheba in which he implicated him . Regarding the
prosecution’s decision to oppose bail, it was put to the plaintiff that his bail was opposed
‘as is required by law ’.
(b) The first defendant’s evidence
[22] Sgt Ndlebe testified that she attended the murder scene on 07 November 2020
where she found the body of the deceased with several stab wounds which suggested
that he was hacked. S he was with Sgt Lukrozo of the fingerprints unit who uplifted
fingerprints from the scene. D uring further investigation of the case , she received oral
information from the members of the community that she interviewed that the plaintiff
was one of the people who were last seen with the deceased. Th is was when they
boarded a vehicle driven by Mqetheba who transported them from Matyengqina where
they had attended a burial association meeting . It was indicated to her that at the
association’s meeting, members were paying in monthly subscriptions , and the
deceased was the association’s treasurer. She did not record her interviews with
members of the public as she was merely looking for a lead to the killers of the
deceased.
[23] She began looking for the plaintiff and Mqetheba. In so doing s he visited the
plaintiff’s home on two occasions but did not find him. On the second occasion she
found a young child. She paused her search for the plaintiff when she did not succeed
in finding him . Meanwhile, she pursued Mqetheba as the one who d rove the vehicle that
conveyed people from the meeting of the burial association , including the plaintiff and
the deceased . Mqetheba was eventually linked to the murder by his fingerprints that
were lifted from the scene of the murder and this led to his arrest. There were other
fingerprints that S gt Lukrozo uplifted from the scene, but they were never compared and
identified .
[24] During her questioning of Mqetheba , he told her that it was the plaintiff who
proposed that they should go to the deceased’s house in order to take the burial
association money that he kept. In the confession that he subsequently made,
Mqetheba stated that he and the plaintiff armed themselves with bush knives and on
arrival at the home of the deceased, they removed t he windo wpane through which the y
entered the house. Once in the house, they tied the deceased to a chair and demanded
money and when he did not produce the money they hacked him with their weapons.
[25] Armed with Mqetheba’s confession, she revived her search for the plaintiff as her
suspicion that he too was involved in the murder of the deceased had hardened . She
went to the plaintiff’s home where she was told by his wife that he went away on 06
November 2020. She contacted the plaintiff telephonically and requested him to meet
with her in connection with the murder of the deceased. H e told her that he was in
Flagstaff to look for employment. When she requested him to meet her at the police
station in Flagstaff , he told her that he would not speak to an unknown person. He kept
on avoiding to meet with her and failed to give her directions to where he lived in
Flagstaff stat ing that he was unfamiliar with the place.
[26] She suspended her search for plaintiff un til 29 May 2021 when she received a tip
off that he would be attending the funeral service in Matheko Locality . On arrival at the
homestead where the funeral was held the plaintiff was pointed out to her by her
informer . He was standing at the entrance of the tent and wore trousers, a T -shirt, and a
jacket. He was not the religious minister presiding at the funeral. Even though she found
the plaintiff five months after the murder, she arrested and detained him because it was
difficult for her to find him and she feared that if he was released, it would be difficult to
find him. This was the basis on which she opposed his release on bail.
[27] Sgt Ndlebe further testified that when she arrested the plaintiff on 29 May 2021,
she had only obtained Mqetheba’s warning statement and confession. She obtained
further witness statements after she arrested the plaintiff . In her view, Mqetheba’s
confession and the oral information she gathered from the members of the community
were sufficient to ground her suspicion which led to the plaintiff’s arrest. The grounds for
her suspicion were that the plaintiff was a member of the burial association ; he was the
one who summoned Mqetheba’s vehicle to fetch him and the rest of the persons which
includ ed the deceased from the meeting of the burial association ; he was one of the
persons who were last seen with the deceased; and he w as implicated by Mqetheba in
a confession.
[28] She adduced no evidence regarding her involvement in court proceedings when
the plaintiff appeared in court for the first time. When she left the Bityi police station
sometime after the arrest of the plainti ff, there had not been a comparison of the further
fingerprints that were lifted at the scene.
(c) The second defendant’s evidence
[29] Mr Stokwe and M r Komanisi testified as the prosecutors who were seized with
the docket and arraigned the plaintiff in the Bityi district court and Mthatha regional
court, respectively.
[30] Mr Stokwe testified that he was the one who received the docket of the case
against the pl aintiff on his first appearance in the Bityi court . Contained in the docket
was a sworn statement of Sgt Ndlebe who visited the scene of crime in which she
detailed h er observations at the scene; a photo album of the scene depicting the naked
body of the deceased with stab wounds and tied to a chair ; a fingerprint analysis report
in respect of Mqetheba; a confession made by Mqetheba in which he implicated the
plaintiff; a sworn statement by Mqetheba as a witness and Sergeant Ndlebe’s arrest
statement in which she detailed how she went about searching for the plaintiff and how
she arrested him.
[31] Guided by the National Prosecuting Authority Policy Manual (revised in Ju ne
2013), he scrutinized the plaintiff’s docket in order to determine if there was prima facie
evidence warranting its enrolment . Upon considering this evidence, he was satisfied
that it established all the elements of the offence of murder. Therefore, he decided to
enrol l the case against the plaintiff among cases that were to appear in the Bityi court
on that day .
[32] When he made the decision to enroll the case against the plaintiff , he was fully
aware that Mqetheba’s confession would not be admissible against him. In his view,
since he was not assessing the plaintiff’s guilt beyond reasonable doubt at that sta ge,
further investigation of the case would augment the deficiency in the prosecution’s case
against him. He had a hope that the case against the plaintiff ‘would crystalize’ upon
further investigation.
[33] He handed the docket to the public prosecutor who would appear in court on that
day to present the charges against the plaintiff. It was that prosecutor who would make
a decision regarding the release of the plaintiff on bail , and that prosecutor decided to
oppose the plaintiff’s release on bail. According to Mr Stokwe, the plaintiff’s release on
bail was justifiably opposed because of the seriousness of t he offence and the difficulty
that the investigating officer had in arresting him.
[34] Mr Stokwe conceded that the confession of Mqetheba was not objective
evidence which the N ational Prosecuting Authority policy manual requires as a basis for
the decisi on to enroll a case against an accused. He further conceded that none of the
statements that were contained in the docket implicated the plaintiff but stated that there
was evidence which ‘circumstantially pointed to the involvement of the plaintiff ’ in the
murder of the deceased. This formed the basis for the reasonable belief he had in the
truth of the allegations against the plaintiff.
[35] From the Bityi court, the plaintiff’s case was transferred to the Regional Cour t in
Mthatha . The p laintiff’s prosecution, said Mr Stokwe, only began when the charges were
put to him in the Regional Court, and it could only fail if the plaintiff was acquitted not
when charges were withdrawn. The rest of the evidence regarding what took place
when the ca se against the plaintiff was enrolled in the regional court was adduced by Mr
Komanisi.
[36] Mr Komanisi testified that the plaintiff’s case was enrolled in the regional court for
the first time on 18 October 2021. It was his duty to make a decision wheth er or not to
continue the prosecution of the plaintiff and Mqetheba by enrolling the case for trial in
that court . He had a duty to review the initial decision that his colleague took of
prosecuting the plaintiff in the Bityi court. At that time, he had only received the record of
proceedings and charge sheet from the Bityi court and not the police docket .
[37] When he saw that the plaintiff and Mqetheba were both on bail he enrolled the
case on 18 October 2021 due to its seriousness but simultaneously requested that the
docket be brought to him for his consideration. When he enrolled the case without
recourse to the docket, he did not believe that the plaintiff and Mqetheba would be
prejudiced since they were on bail. He did this fully aware of the fact that the case would
be postponed to another date and the plaintiff and Mqetheba would be obliged to attend
proceedings on the next date. Mr K omanisi further testified that if the plaintiff and his co -
accused were in custody when he had to decide whether to enroll their case or not, he
would never have enrolled it without the police docket .
[38] The case had already been adjourned to 22 October 2021 when the docket was
brought to him later on 18 October 2021 by a person other than the investigating officer .
At the time , it still contained the same evidence that was at the disposal of Mr Stokwe
when he enrolled the case in the Bityi court. Upon his consideration of the conspectus
of the evidence contained in the docket, he was not satisfied that there was sufficient
evidence implicating the plaintiff since he was implicated by Mqetheba in a confession
that was inadmissible evidence against h im. To that end he immediately telephonically
contacted S gt Madikazi who was the investigating officer of the case at the time in order
to discuss the patent insufficiency of evidence against the plaintif f but he received no
tangible response to his querie s.
[39] He concomitantly made an entry in the investigation diary enquiring from S gt
Madikazi whether there was any comparison of the fingerprints lifted at the scene with
the plaintiff’s finger prints. This entry is dated 18 October 2021, being the date on which
he received the docket. He required this information as confirmation outside Mqetheba’s
confession of the role played by the plaintiff in the commission on the murder .
[40] While no feedback was received from Sgt Madikazi regarding a comparison of
the plaintiff’s fingerprints, the case was postponed on 22 October 2021 to 19 November
2021 for further investigation . On this latter date he spoke with the investigating officer
again regarding the need for the comparison of the plaintiff’s fingerprints with the ones
that were lifted from the scene of the murder. He still receiv ed no feedback from the
investigating officer regarding this aspect of investigation . The case was further
postponed to 09 December 2021 for consultation by the prosecution and defence with
their respective witnesses. He only made the decision to withdraw the charges against
the plaintiff on 09 December 2021 due to insufficient evidence implicating him.
[41] According to Mr Komanisi , there was a prima facie case against the plaintiff when
his colleague, Mr Stokwe enrolled the case in the Bityi court . He denied that there could
not have been reasonable belief in the guilt of the plaintiff at that stage. Howeve r, he
explained that it would have been necessary for Mr Stokwe to issue instructions to the
investigating officer for further investigation since there no full investigation at that initial
stage of the prosecution .
[42] Mr Komanisi further testified that the same evidence on which Mr Stokwe relied
when he first enrolled the case against the plaintiff in the Bityi court was the same
evidence that he considered for the purposes of taking the matter to trial in the Regional
Court. He conceded that when Mr Stokwe enrolled the case, the law was set in motion
against the plaintiff and that at the time he gave evidence i n the present proceedings,
no prosecution was reinstated again against the plaintiff.
[43] I put questions to Mr Komanisi for the purposes of elucidating the evidence
adduced regarding entries made in the investigation diary by the respective prosecutors
and investigators who were seized with the docket at different points in time. He testifie d
that from when the confession of Mqetheba was filed in the docket on 28 January 2021,
the involvement of the plaintiff in the commission of the murder was never que ried by
the prosecutor who was then seized with the docket in the Bityi court . This position
prevailed on 04 February 2021 until 26 August 2021 , and w hen he received the docket
and queried the plaintiff’s involvement in the commission of the offence, the
investigati ng officer of the case did not comply with his instructions.
The parties’ submissions
[44] On behalf of the plaintiff, Mr Sintwa submitted that Sgt Ndlebe ought to have
verified the assertions made by Mqetheba in the confession which formed the basis of
her suspicion that the plaintiff was involved in the murder of the deceased. To the extent
that she did not , her suspicion was not reasonable. Regarding Sgt Ndlebe’s failure to
exercise her discretion in arresting the plaintiff, Mr Sintwa submitted that she arrested
the plaintiff on the strength of an instruction that the prosecutor gave that the second
suspect must be arrested.
[45] Mr Sintwa went on to submit that the plaintiff’s detention had no rational basis
since there was no evidence linking him to the murder. On the issue of malicious
prosecution, he submitted that the second defendant had no reasonable and probable
cause to prosecute the plaintiff at the various stages where he was prosecuted.
[46] Mr Mdeyide submitted that based on the objective facts that Sgt Ndlebe had
gathered at the scene of the murder, the oral information obtained regarding the murder
and Mqetheba’s confession, her suspicion that the plaintiff was involved in the murder
was founded on re asonable grounds. It was his submission further that the plaintiff
failed to establish that Sgt Ndlebe improperly exercised her discretion in arresting and
detaining him. Regarding the plaintiff ’s detention after his court appearance, Mr
Mdeyide submitted that his further detention was in the hands of the second defendant
and subject to the authority of the court.
[47] Ms Ncalo took the view that in enrolling the case against the plaintiff, the
prosecutors acted without malice as they had sufficient eviden ce to do so. She further
submitted that because no verdict was returned by the court, namely an acquittal, it
cannot be said that the prosecution was terminated in favour of the plaintiff. According
to Ms Ncalo , the withdrawal of the charges against the pl aintiff did not terminate the
prosecution.
The Law
[48] A person may only be arrested and detained without a warrant authorizing his
arrest in circumscribed instances, which the CPA sets out in section 40. Relevant to the
present case are the provisions of section 40(1)(b) in terms of which a warrantless
arrest may be made by a peace officer who entertains a suspicion based on reasonable
grounds that the person to be arrested committed an offence listed in Schedule 1 of the
CPA.2
[49] In Shaaban Bin Hussien and Others v Chong Fook Kam and Another ,3 Lord
Devlin described ‘suspicion’ this way :
‘Suspicion in its ordinary meaning is a state of conjecture or surmise where proof
is lacking; “I suspect but I cannot prove”. Suspicion arises at or near the starting
point of an investigation of which the obta ining of prima facie proof is the end.’
2 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G -H.
3 Shaaban Bin Hussien and Others v Chong Fook Kam and Another [1969] 3 All ER 1626 (PC) at 1630.
[50] Not any suspicion will suffice for justifying a person’s arrest and detention. The
suspicion must be reasonable and the test for such reasonableness is objective. The
test for the reasonableness of the grounds o f suspicion on which the arrest is effected,
was enunciated in Mabona and Another v Minister of Law and Order and Others ,4
where the court stated:
‘[T]he reasonable man will therefore analyze and assess the quality of the
information at his disposal criti cally and he will not accept it lightly or without
checking it where it can be checked. It is only after an examination of this kind
that he will allow himself to entertain a suspicion which will justify an arrest. This
is not to say that the information a t his disposal must be of sufficiently high
quality and cogency to engender in him a conviction that the suspect is in fact
guilty. The section requires suspicion not certainty. However, the suspicion must
be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a
reasonable suspicion .’ (My emphasis.)
[51] The decision to arrest entails the exercise of a discretion. Once the jurisdictional
facts for an arrest, whether in terms of any paragraph of s 40(1) or in terms of s 43 of
the CPA, are present, a discretion arises , and the peace officer is not obliged to arrest.5
That discretion must be exercised after taking all the prevailing circumstances into
consideration .6
[52] A police officer a police officer effecting an arrest is equally enjoined to apply his
or her mind to the circumstances relating to a person’s detention and this includes
applying his or her mind to the question whether detention is at all necessary.7 This is in
keeping w ith the fact that the arrest and detention are two separate legal acts even
4 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658G -H.
5 Minister of Safety and Security v Sekhotho 2011 (1) SACR 315 (SCA) , para 28 (Sekhotho ).
6 Biyela v Minister of Police (1017/2020) [2022] ZASCA 36; 2023 (1) SACR 235 (SCA) (1 April 2022), para
36 (Biyela) .
7 Mvu v Minister of Safety and Security 2009 (6) SA 82 (GSJ) at 90A ; Hofmeyer v Minister of Justice and
Another 1992 (3) SA 108 (C).
though they both result in the restriction of a person’s liberty.8 Therefore, even where an
arrest may be lawful, it does not automatically follow that the detention will also be
lawful.
[53] It is settled law that the authority of the police to detain the suspect after arrest
endures until his first appearance in court, whereafter his further detention is dependent
on the decision made by the court in the exercise of its discreti on.9
[54] Furthermore, a legal duty rests on the arresting police officer to inform the public
prosecutor of the existence of information which would justify the further detention.
Similarly, where there are no facts which justify the further detention of a person, this
should b e placed by the investigator before the prosecutor of the case. This information,
which must have been established by the police officer, will enable the public prosecutor
and eventually the magistrate to make an informed decision whether or not there is a ny
legal justification for the further detention of the person.10
[55] Malicious prosecution consists in the wrongful and intentional assault on the
dignity of a person comprehending also his or her good name and privacy.11 In order to
succeed in her claim based on malicious prosecution, the plaintiff must allege and prove
that (a) the defendants set the law in motion (instigated or instituted the proceedings);
(b) the defendants acted without reasonable and probable cause; (c) the defendants
acted with ‘malice’ (or animo injuriandi ); and (d) that the prosecution has failed.12
[56] With these legal principles in mind, I turn to consider whether or not the first and
second defend ants ought to be held liable for plaintiff’s claim.
8 Mahlongwana v Kwatinidubu Town Committee 1991 (1) SACR 669 (E) at 675d -f.
9 Sekhoto para 42; Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597
(SCA) , para 38 (Tyokwana ).
10 Botha v Minister of Safety and Security and Others, January v Minister of Safety Security and Others
(575/2009; 576/2009) [2011] ZAECPEHC 12 (2 April 2011), para 30.
11 Relyant Trading (Pty) Ltd. v Shongwe and Another (472/05) [2006] ZASCA 162; [2007] 1 All SA 375
(SCA) (26 September 2006), para 5 (Relyant ).
12 Minister for Justice & Constitutional Development v Moleko 2009(2) SACR 585 (SCA), para 8; see also
Minister of Safety and Security v Lincoln 2020 (2) SACR 262 (SCA).
Discussion
[57] Whether Sgt Ndlebe could entertain a reasonable suspicion about the plaintiff’s
involvement in the murder of the deceased based on the confession made by Mqetheba
in which he implicated the plaintiff, was strenuously contested between the parties .
[58] It is so that in terms of section 219 of the CPA no confession made by any person
shall be admissible as evidence against another person. A distinction must , however , be
drawn between the threshold of the quality of the facts required for the purposes of the
reasonable suspicion that is required to justify an arrest, and that of the quality of facts
required to stand as evidence for the purposes of determining the guilt of the accused in
a court of law .
[59] If it is accepted , as it ought to be, from the plethora of case law, that the standard
of the facts required to give rise to a suspicion that forms the basis of an arrest is set
low, it can hard ly be argued that the question of admissibility of a confession made by a
suspect who is arrested first is a factor to be considered by the police officer when
making a decision to arrest further suspect s. The SCA in Biyela v Minister of Police13
held that the suspicion held by the arresting officer need not be based on information
that would subsequently be admissible in a court of law.
[60] Sgt Ndlebe did not require direct and admissible evidence implicating the plaintiff
in order for her to arrest him. What was required were facts on which a reasonable
police officer faced with such facts, would entertain a suspicion that the plaintiff was
involved in the murder of the deceased. This is not to say she was absolved from th e
duty of verifying the facts which gave no clear indication of the plaintiff’s involvement in
the commission of the crime where this could practically be done.
13 Biyela , para 33.
[61] I may add that t he fact that the fingerprints analysis results that Sgt Ndlebe had
in her possession only linked Mqetheba was no bar in her considering the arrest of the
plaintiff in the light of the facts that she had so far gathered pertaining to murder of the
deceased which included Mqetheba’s confession. I make the finding that Sgt Ndlebe ’s
suspicion after the confession of Mqetheba was based on reasonable grounds.
[62] With this said, the question that follows is whether Sgt Ndlebe was obliged to
arrest the plaintiff, or whether , as alleged by the plaintiff, she could employ other less
drastic ways of securing his attendance in court? The onus was on the plaintiff to
establish that his arrestor did not exercise her discretion properly in arrest ing him .14
The arrestor’s exercise of discretion
[63] According to Sgt Ndlebe, she decided to arrest the plaintiff , albeit five months
after the murder, because he evaded the police for that entire period. This was not
pleaded by the first defendant in answer to the plaintiff’s allegation that his arrestor did
not properly exercise her discretion in arresting him . This fact notwithstanding, this
aspect was fully ventilated by the parties during the trial, there is therefore no prejudice
to the plaintiff if this Court considers this fact despite the fact that it was not pleaded.15
[64] When the plaintiff was confronted with the first defendant’s assertion that he
evaded the police and that this was the reason why it took about five months for him to
be arrested, he proffered a bare denial. In the end, he stated that when he heard from
her child on one occasion that he was sought by the police, he deliberately refrained
from going to the police on the ground that they were the on es looking for him,
therefore, they ought to have come to him.
14 Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA); [2011] 2 All SA 157
(SCA); 2011 (5) SA 367 (SCA); (131/10) [2010] ZASCA 141 (19 November 2010) , para 49 (Sekhotho ).
15 Minister of Safety and Security v Slabbert (668/2009) [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) (30
November 2009), para 12 .
[65] In as much a s the plaintiff was not legally bound to present himself to Sgt
Ndlebe, his assertion that he was under no obligation to do so even when he learned
from his child , that he was sought by the police , must be taken as an implicit admission
by him that he had resolved to avoid meeting Sgt Ndlebe for the purposes of
questioning regarding the death of the deceased . But this would not absolve Sgt Ndlebe
from applying her mind to whether it was necessary a t that stage and in those
circumstances to arrest the plaintiff.
[66] On Sgt Ndlebe’s own showing, apart from the fingerprints that linked Mqetheba
to the murder, there were fingerprints that were lifted at the scene of the murder which
had not been ident ified. It was her further testimony that she had intended to obtain the
plaintiff’s fingerprints in order to have them compared with the unidentified fingerprints .
Section 36C of the CPA empowers any police official to take fingerprints and body prints
for investigation purposes. This section provides as follows:
‘36C. (1) Any police official may without warrant take fingerprints or bodyprints of
a person or a group of persons, if there are reasonable grounds to —
(a) suspect that the person or tha t one or more of the persons in that
group has committed an offence referred to in Schedule 1; and
(b) believe that the prints or the results of an examination thereof, will be
of value in the investigation by excluding or including one or more of those
persons as possible perpetrators of the offence.
(2) Prints taken in terms of this section may —
(a) be examined for the purposes of the investigation of the relevant
offence or caused to be so examined; and
(b) be subjected to a comparative search. ’
[67] The above quoted provisions of section 36C of the CPA which are an
investigative aid are also intended to eliminate innocent persons from the identified
suspects of a crime.
[68] It is indeed so that the court will not interfere with a bona fide exercise of
discretion by a public officer .16 The offence for which the plaintiff was arrested is
undeniably a serious one which would ordinarily justify a decision by the peace officer to
arrest the suspect as opposed to using less drastic measures to bring him/he r to court.17
A disconcerting feature of the first defendant’s evidence is that no investigation of the
case was undertaken after Mqetheba’s confession dated 28 January 2021 until a time
after the arrest of the plaintiff.
[69] In as much as Sgt Ndlebe could, as a result of Mqetheba’s confession ,
reasonably entertain a suspicion that the plaintiff was involved in the murder of the
deceased , she was not obliged to resort to an arrest as a means of bringing him to
court . These are the reasons why. There was no direct evidence of the persons who
killed the deceased. She was fully aware of the fact that it was by means of the
fingerprint comparison that Mqetheba was linked to the murder. In the sworn statement
that Mqetheb a made on an unspecified date as a witness , he mention ed that at
Maty engqina, where he went to fetch the burial association members at the plaintiff’s
request , he found six persons which included the plaintiff and the deceased . In the
confession in which h e later implicated the plaintiff he stated tha t one Mabhakamfula
Siphika and an old woman from his locality were among the six people he conveyed in
his vehicle from Matyengqina . It appears from the confession that Mabhakamfula
Siphika was the one who summoned Mqetheba to fetch them from there .
[70] After the arrest of Mqetheba and the filing of his confession in the docket, t here
was no investigation into the identity of the t wo other persons among the six that he
conveyed from Matyeng qina. This is despite the fact that according to Sgt Ndlebe, she
pursued the plaintiff because he was said to be one of the persons who were last seen
with the deceased. Significantly , even though there were unidentified fingerprints that
were lifted at the murder scene , no steps were taken , while Sgt Ndlebe was still
searching for the plaintiff, to have those fingerprints compared , at least , with those of
16 Sekhotho , para s 28 and 34.
17 Sekhotho , para 44.
Mabhakamfula Siphika whom Mqetheba clearly identified in his confession as one of the
passengers that he conveyed , and who summoned him to fetch them at Matyengqina .
[71] Heedless of this lacuna in the case against the plaintiff as it was five months after
the arrest of Mqetheba , Sgt Ndlebe went ahead and arrested him. Effectively, she failed
to use an opportunity to verify the allegations that Mqetheba made in his confession
which happened to be the only piece of incriminating evidence she had against the
plaintiff , by having recourse to th e provisions of section 36C of the CPA . This, in
circumstances where , as already mentioned, the docket was left uninvestigated for a
period of five months after Mqetheba’s confession. In these circumstances, i t does not
assist the defendant that Sgt Ndlebe testified that she arrested and detained the plaintiff
because it was difficult to find him. Nothing can be more arbitrary! It cannot be said that
Sgt Ndlebe duly and honestly appl ied herself to the matter of the plaintiff’s arrest by
considering whether the arrest was rational in the circumstances.
[72] I come to the conclusion that Sgt Ndlebe failed to exercise her discretion properly
in arresting the plaintiff . This makes the plaintiff’s arrest and subsequent detention until
his first appearance in court unlawful for want of rational basis . I deal next , with whether
a basis has been established to hold the first defendant liable for the further detention of
the p laintiff after his appearance in court.
The post -court appearance detention
[73] It is common cause that the plaintiff was caused to appear in court on 01 June
2021 on which day his application for bail was postponed and eventually granted on 2 4
June 2021. It bears mentioning that the record of proceedings of the Bityi court that was
discovered between the parties does not entail the proceedings against the plai ntiff at
his first appearance before the magistrate . Furthermore, a mong the contents of the
police docket discovered there is no record of any information that Sgt Ndlebe provided
to the prosecutor concerning her views on the plaintiff’s release on bail.
[74] In De Klerk v Minister of Police18, it was held that once the arresting officer brings
the suspect to court, the court is primarily responsible for his further status as an
accused. The question that arises from this is whether the remand by the magistrate
constituted a new intervening act which broke the chain of causation between the arrest
of the plaintiff by Sgt Ndlebe and his further detention after his court appearance . This
question was dealt with by Theron J in De Klerk when she said the following, with
reference to various cases :19
‘[46] Put differently, assuming that a Magistrate does remand someone lawfully,
would it necessarily follow that the police cannot be liable for the subsequent
detention factually caused by an unlawful arrest? What difference would it make
if the remand was unlawful?
[47] These questions probe the role of the lawfu lness of the subsequent
detention in assessing the police’s liability for an unlawful arrest. For the reasons
that appear from an analysis of the contradictory case law below, the liability of
the police for detention after court appearance should not be d etermined solely
on the basis of whether the further detention was lawful, although that is a
relevant consideration. Instead, liability should be determined in accordance with
the principles of legal causation, including constitutionally infused considera tions
of public policy.
[59] In sum, there are then two Supreme Court of Appeal decisions suggesting
that the lawfulness of the subsequent detention determines without more whether
the arrestor is liable. There are three going the other way, with an expre ss
consideration of legal causation. How is this difference to be resolved?
18 De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR
1 (CC); 2021 (4) SA 585 (CC) (22 August 2019), para 69 (De Klerk ); see also Sekhotho , para 42.
19 Isaacs v Minister van Wet en Orde [1995] ZASCA 152; 1996 (1) SACR 314 (A) ; Minister of Safety and
Security v Ndlovu [2012] ZASCA 189; 2013 (1) SACR 339 (SCA) ; Zealand v Minister for Justice and
Constitutional Development and Another 2008 (2) SACR 1 (CC); and Tyokwana.
[60] From the outset, it appears that to the extent that Ndlovu and Tyokwana
assume that legal causation does not need to be established to hold the police
liable, they depart fro m established principle. The Supreme Court of Appeal’s
minority judgment in this matter explains why. In establishing a delictual claim, a
plaintiff needs to prove that the unlawful, wrongful conduct of the police (i.e. the
arrestor) factually and legally caused the harm (post -court hearing deprivation of
liberty). The plaintiff does not need to establish, necessarily, the unlawfulness of
the harm (i.e. that the detention after remand was itself unlawful). The plaintiff
need only establish that the harm was not too remote from the unlawful arrest.
This is not to say that the unlawfulness of the post -court hearing detention is
irrelevant. It is crucial if a plaintiff aims to hold the Minister of Justice liable.
Furthermore, importantly, it is a relevant consi deration in establishing legal
causation.
[62] The principles emerging from our jurisprudence can then be summari zed as
follows. The deprivation of liberty, through arrest and detention, is per se prima
facie unlawful. Every deprivation of liberty must no t only be effected in a
procedurally fair manner but must also be substantively justified by acceptable
reasons. Since Zealand, a remand order by a Magistrate does not necessarily
render subsequent detention lawful. What matters is whether, substantively, there
was just cause for the later deprivation of liberty. In determining whether the
deprivation of liberty pursuant to a remand order is lawful, regard can be had to
the manner in which the remand order was made. ’
[63] In cases like this, the liability o f the police for detention post -court
appearance should be determined on an application of the principles of legal
causation, having regard to the applicable tests and policy considerations. This
may include a consideration of whether the post -appearance d etention was
lawful. It is these public policy considerations that will serve as a measure of
control to ensure that liability is not extended too far. The conduct of the police
after an unlawful arrest, especially if the police acted unlawfully after the unlawful
arrest of the plaintiff, is to be evaluated and considered in determining legal
causation. In addition, every matter must be determined on its own facts – there
is no general rule that can be applied dogmatically in order to determine
liability. ’20 (footnotes omitted)
[75] Quite evident from the facts of the present case is that Sgt Ndlebe did not
provide any insight to the public prosecutor regarding the appropriateness or otherwise
of further detention in circumstances where there was a legal duty on her to do so.
There is no record in the investigation diary of communication between the prosecut or
in the Bityi court and Sgt Ndlebe regarding aspects of investigation of the case against
the plaintiff from the time of his arrest until 24 June 2021 when he was released . It is
unsurprising that Mr Stokwe was unable to testify regarding the question of the plaintiff’s
release and what took place when the plaintiff made his first appearance in court.
[76] It was Mr Stokwe’s evidence that the plaintiff’s bail was opposed ‘because the
offence he was charged with was a serious one. ’ This is not what the determination of a
person’s eligibility on bail in terms of section 60 of the CPA entails. In its simplest form,
the test is whether interests of justice permit the release of the accused on bail. Various
facto rs are to be considered in making this determination, and the seriousness of the
offence , though relevant, is not a decisive factor. In the end, t he main purpose of bail is
to protect personal freedom as far as possible.21
[77] Apart from the fact that there was a lacuna in her case against the plaintiff to the
extent that she did not verify the fingerprints that were readily available from the scene
of the murder , and there was no other evidence against the plaintiff except the
confession , Sgt Ndle be had been to the homestead of the plaintiff on more than one
occasion . By then she would have established that the plaintiff had a family and a fixed
place of residence. From her version of how she went about looking for the plaintiff and
the informatio n she gathered about his whereabouts, it appears that the plaintiff was
20 Id.
21 McCarthy v R 1906 TS 657 at 659 ; Minister van Wet en Orde en Andere v Dipper 1993 (3) SA 591 (A)
at 595G.
always within reach of the police . It was expected that all of this information would be
disclosed to the prosecutor and eventually the magistrate. This was not done.
[78] No evidence was adduced by Sgt Ndlebe that it had appeared to her when she
opposed the plaintiff’s bail that there was a risk that he would interfere with
investigations or state witnesses if he was released on bail, or that he would skip the
country. That she opposed bail because she feared that it would be difficult to find the
plaintiff , can hardly be availing to the first defendant. Sgt Ndlebe’s reasons for opposing
the plaintiff’s bail clearly had nothing to do with fear that the plaintiff would interfere with
investigation or state witnesses ; or he would evade trial .
[79] All of the aforegoing is compounded by the fact that there is no record of what
took place in court upon the plaintiff’s first appearance and what submissions were
made by the prosecutor before the magistrate concerning his release or further
detention . There is no record of reasons why the plaintiff’s bail application was
postponed on his first appearance . Since t he parties agreed in the ir minute of a further
pre-trial conference dated 28 August 2024 that the plaintiff was in detention for 23 days ,
in the absence of the record of pro ceedings of the plaintiff’s first appearance in court, it
must be accepted that the plaintiff’s further detent ion after his first appearance in court
began on 01 June 2021 and endured until his release on 24 June 2021.
[80] I make the finding that Sgt Ndlebe’s failure in providing the prosecutor , and
eventually the court , with the necessary information that would assist in the decision
regarding whether or not the plaintiff’s further detention was justified in the
circumstances , was a wrongful breach of her legal duty. Her culpable conduct is
sufficiently closely connected to the co ntinued detention of the plaintiff after his first
appearance in court .
Malicious prosecution
[81] Ms Ncalo seemed to have taken the view that when the plaintiff appeared in the
Bityi court he was not prosecuted and that his prosecution began only in the regional
court. This view was shared, incorrectly, I might add, by Mr Stokwe who maintained that
the plaintiff was not prosecuted when he first appeared in the Bityi court on the charge
of murder.
[82] A prosecution begins when the prosecutor decides to pursue criminal charges
against the accused after receiving the docket from the police. This much is confirmed
by the N ational Prosecuting Authority policy manual to which Mr Stokwe referred this
Court as being what guided his decision to enroll the plaintiff’s case. It is rather
confounding that Mr Stokwe testified that when he enrolled the plaintiff’s case , he was
not prosecuting him. The Oxford English Dictionary22 provides the fo llowing definitions
of “prosecution” which find relevance in the present context:
“1. The following up, continuation, or pursuit of a course of action etc, with a view
to its completion.
2. The institution and conducting of legal proceedings in respect o f a criminal
charge in court; the institution and conducting of proceedings against a person or
in pursuit of a claim. . .”
[83] Mr Stokwe’s understanding of what a prosecution entails and when it
commences is clearly at odds with this definition and what the prosecutorial policy that
governs his duties sets out. To the extent that Ms Ncalo persisted with a similar
understanding, her view in this regard cannot be sustained.
[84] Central to the plaintiff’s claim of malicious prosecution is whether the prosecutors
had reasonable and probable cause to prosecute him. A decision to prosecute a plaintiff
can only be made after the prosecutor has int errogated the docket in its entirety and
22 Shorter Oxford English Dictionary, Volume 2, page 2375.
applied his/her mind properly. This is in keeping with his/her duty not to act arbitrarily but
with objectivity.23
[85] The requirement that there must be a reasonable and probable cause to
prosecute entails that there must be an honest belief founded on reasonable grounds
that the institution of proceedings is justified. In Beckenstrater v Rottcher and
Theunissen24 Schrein er JA put it this way :
‘[W]hen it is alleged that a defendant had no reasonable and probable 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 plaintiff’s guilt, a subjective
element come into play, and disproves the existence, for the defendant, of
reasonable a nd probable cause.’
[86] The second defendant can only be absolved from liability for malicious
prosecution if Mr Stokwe and Mr Komanisi had a genuine belief founded on reasonable
grounds that the plaintiff was guilty .25 In his testimony, Mr Stokwe concede d that the
confession made by Mqetheba could not, on its own, sustain a conviction against the
plaintiff as it was inadmissible evidence against him . Despite this understanding, he
decided to pursue the charge against the plaintiff with the hope that the d eficiency in the
evidence that he had at his disposal would be supplemented by an investigation.
[87] Granted, a prosecutor also has the option of requesting further investigation
whenever the guilt of the accused is subject to doubt. This will often be t he case since
at that stage there would not been a full investigation of the case yet. On the face of the
entries that were made in the investigation diary when the case was on the Bity court
23 Patel v National Director of Public Prosecutions and Others (4347/15) [2018] ZAKZDHC 17; 2018 (2)
SACR 420 (KZD) (13 June 2018), para 27.
24 1955 (1) SA 129 A 136 A -B.
25 Relyant para 14.
roll, an instruction that was repeatedly issued by the prosecuto r was that the
investigating officer must arrest ‘the second suspect’ as soon as possible .
[88] The fact that Mr Stokwe did not enquire from the investigator of the case , as he
ought to have done so, regarding the availability of other evidence implicating the
plaintiff besides Mqetheba’s confession , is not without significance . His omission
prevailed for the duration of the existence of the plaintiff’s case in the roll of cases that
were before the B ityi court prior to its enrolment in the regional court on 18 October
2021. At no stage did he or his colleague in the Bityi court review the second
defendant’s case against the plaintiff throughout the period of his attendance of
proceedings against him i n that court.
[89] Although Mr Komanisi confirmed that Mr Stokwe had a duty to raise queries with
the investigator of the case considering that the plaintiff was linked to the murder only
by Mqetheba’s confession , he attempted to explain Mr Stokwe’s omiss ion away by
stating that he (Mr Stokwe) was not at that stage concerned with the guilt of the plaintiff
beyond reasonable doubt. I disagree with this explanation . A prima facie case in the
context of assessing the existence of reasonable and probable cause will justify a
decision to prosecute where it consists of allegations supported by statements and real
and/or documentary evidence and is of a nature that if it is proved in a court of law by
admissible evidence, it would result in a conviction.26 In S v Lubaxa27 it was said:
‘Clearly a person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely in the expectation that at
some stage he might incriminate himself. That is recogni zed by the common law
principle that there should be “reasonable and probable ” cause to believe that the
accused is guilty of an offence before a prosecution is initiated and the
constitutional protection afforded to dignity and personal freedom (s10 and s12)
seems to reinforce it. It ought to follow that if a prosecution is not to be
26 Murray v Minister of Defence 2009 (3) SA 130 (SCA) , para 46.
27 2001 (2) SACR 703 (SCA) , para 19.
commenced without that minimum of evidence, so too should it cease when the
evidence finally falls below that threshold. ’
[90] To his credit, Mr Komanisi understood when he received the docket on 18
October 2021 , that his role was to make a decision whe ther or not to continue with the
prosecution of the plaintiff. Significantly, he observed that no other evidence was
submitted in the docket except that which his colleague, Mr Stokwe had at his disposal
at the time the case was in the Bityi court roll. For a period of two months nothing was
forthcoming from the investigator regarding his query. Charges against the plaintiff were
only withdrawn on 09 December 2021. Before this date, the case was postponed, first
for the docket, and on subsequent occasions, for further investigation.
[91] When Mr Komanisi received the docket on 18 October 2021 albeit after the case
was already adjourned, he would have fully interrogated it for him note that since the
time the docket was received by Mr Stokwe in the Bityi court nothing more had been
done to investigate the c ase. When the investigating officer did not bring forth further
evidence on 19 November 2021 , being the date to which the case was postponed on 22
October 2021 for further investigation , it must have been clear to Mr Komanisi that the
prosecution against t he plaintiff could not be caused to continue. He ought to have
discontinued it, but he did not. The case was postponed further on two occasions. There
cannot have been reasonable and probable cause for its continuation.
[92] Although the expression “malic e” is used in a claim for malicious prosecution , the
plaintiff’s r emedy lies under actio injuriarum . He had to prove that the second
defendant’s employees acted with animus injuriandi.28 In Moleko , this requirement of the
claim for malicious prosecution was explained as follows :
‘The defendant must thus not only have been aware of what he or she was doing
in instituting or initiating the prosecution but must at least have foreseen the
28 Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 103 -104; and Prinsloo and
Another v Newman 1975 (1) SA 481 (A) at 492 A -B.
possibility that he or she was acting wrongfully, but neve rtheless continued to act,
reckless as to the consequences of his or her conduct (dolus eventualis).
Negligence on the part of the defendant (or, I would say, even gross negligence)
will not suffice ’.29
[93] The conduct of Mr Stokwe and Mr Komanisi when they pursued the plaintiff’s
prosecution at the different stages set out above mirrors this dictum. They not only knew
what they were doing in initiating and continuing with the prosecution, respectively, but
they foresaw at different stages of the p rosecution that the y were acting wrongly in
prosecuting the plaintiff but nevertheless continued to act, reckless as to the
consequences of their conduct. When they did so, they acted with animus injuriandi.
[94] There is one last matter that I must deal w ith. Mr Stokwe was of the view that the
prosecution did not terminate in favour of the plaintiff because he was not acquitted but
charges were withdrawn. Accordingly, he said, if new evidence emerged against the
plaintiff, he could be prosecuted afresh. Failure of the prosecutio n means that criminal
proceedings were terminated in favour of the plaintiff. This happens when the plaintiff
has been acquitted, or the National Director of Public Prosecutions (through the public
prosecutor) decides not to proceed with the prosecution. It is so, indeed, that u ntil the
termination occurs, no clai m for malicious prosecution lies.30
[95] In the present case, n owhere does it appear from the record of proceedings in
the regional court on 09 December 2021 that Mr Komanisi withdrew the charges against
the plaintiff pending further investigation or pro visionally for this reason. On the contrary,
Mr Komanisi’s evidence was clearly that he withdrew charges against the plaintiff due to
insufficiency of evidence against him. I come to the conclusion that the plaintiff has
discharged the onus resting on him of proving that he was maliciously prosecuted by
the employees of the second defendant.
29 Moleko , footnote 11 supra, para 8.
30 ELS v Minister of Law and Order and Others 1993 (1) SA 12 (C) at 15F.
Costs
[96] The general rule is that costs follow the result, unless there are reasons
warranting a deviation from this rule. In the present case, there is no reason why I
should depart from the general rule. The plaintiff must be awarded his costs as the
successful l itigant .
Order
[97] In the result, I make the following order:
1. The first defendant is held liable for the agreed or proven damages suffered by
the plaintiff as a result of his unlawful arrest by its member on 29 May 2021 , and
subsequent unlawful detention until 24 June 2021 .
2. The second defendant is held liable for the proven or agreed damages suffered
by the plaintiff as a result of his malicious prosecution by her employees from 01
June to 09 December 2021 .
3. The first and second defendants shall pay the plaintiff’s costs on scale A referred
to in Uniform Rule 67A .
4. The determination of quantum of damages shall stand over for determination at a
later stage.
_____________________
L RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : S Sintwa
Instructed by : M. Velembo Attorneys , Mthatha
For the first defendant : A Mdeyide
Instructed by : State Attorney , Mthatha
For the second defendant: Z Ncalo
Instructed by : State Attorney , Mthatha.
Date h eard : 28 to 29 August 2024
09 & 1 2 September 2024
Date d elivered : 11 March 202 5