SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 41173/2020

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 01/08/2025

In the matter between


SAMUEL RAKGWALE Plaintiff

And

MINISTER OF POLICE First Defendant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant

JUDGEMENT


MVUBU AJ

Introduction

[1] The Plaintiff, one Mr Samuel Rakgwale, claims an amount of R 4 100 000.00
against the First Defendant (the Minister of Police) in respect of an alleged unlawful
arrest and its attended detention.1 That is the first claim.

[2] In the said first claim, the Plaintiff alleges that on 13 May 2019 the First
Defendant arrested him without a warrant . The arrest was unlawful because it
cannot be justified in terms of and under section 40 of the Criminal Procedure Act,
1977 as amended (CPA).
2 Pursuant to the alleged unlawful arrest, the Plaintiff was
detained from 13 May 2019 until his release on 22 January 2019.

[3] It was similarly alleged that the First Defendant’s liability for detention applies
all the more given that the First Defendant failed to exercise its discretion of
admitting the Plaintiff to bail in terms of section 60 of the CPA.

[4] In retort, the First Defendant averred that the arrest was lawful as it was
carried out in terms of section 40(1)(b) of the CPA .
3 In relation to the detention, the
First Defendant averred that the Plaintiff was taken to Court and remanded in
detention pursuant to the provisions of section 50(1) of the CPA.
4 It was specifically
averred that the reason the Plaintiff was remanded in detention until 30 May 2019
was in order for the Plaintiff to secure legal representation as well as for purposes of
bringing a formal bail application.
5

[5] Thus was the ground laid for the first claim and two witnesses were called –
one by the Plaintiff (the Plaintiff testified, I shall set out the gist of his testimony in this
regard below) and one by the Defendant (one Sergeant Esther Mokwele). This
Court was requested, by the First Defendant, to admit the arresting statement of one
Warrant Officer Ndwamato Daniel Rangolo into evidence in terms of the provisions

1 See CaseLines 001-1 to 001-22 – being the Plaintiff’s Combined Summons. At 001- 9 one finds the

prayer 1 and the case in respect of the alleged unlawful arrest and detention was pleaded at 001- 5
see paras 5 & 6 read with para 13 at 001- 7 read with para 21 at 001 -9. See also para 15 at
CaseLines 001-8.
2 Particulars of claim paras 5 & 6 at CaseLines 001-5.
3 See the Defendants’ Plea at para 5, CaseLines 003-13.
4 See para 10.2 at CaseLines 003-15.
5 Ibid.

of the Law of Evidence Amendment Act, 1988 as amended. T hat constitutes
everything relating to the first claim.

[6] To the second claim.

[7] The Plaintiff claims an amount of R 2 000 000.00 for an alleged malicious
prosecution.
6 The Defendants (especially the Second Defendant) denied that the
Plaintiff was subjected to malicious prosecution.7

[8] The Defendants, in relation to the malicious prosecution claim, specifically
pleaded:
“[17.2] The Defendants specifically plead that the matter was on the roll after
the public prosecutor was satisfied that there is a prima facie case of robbery
which merits prosecution and prospects of successful prosecution” (sic)

[9] Three witnesses testified in relation to the second claim – the Plaintiff and two
witnesses for the Second Defendant (one Public Prosecutor Mr Mxolisi Nhlayisi and
Control Prosecutor, Ms Nadine Franks) . I shall detail the gist of evidence in relation
to the second claim, below.

[10] I first deal with the common cause facts.

Common cause facts

[11] It is common cause that the Plaintiff was arrested on 13 May 2019, and the
arrest was carried out without a warrant.
8 The Plaintiff was arrested for allegedly
committing the offence of robbery with aggravating circumstances.

[12] Approximately 3 hours and 40 minutes later, (and on the same 13 May 2019),
the Plaintiff made his first court appearance. The Plaintiff was then remanded in
detention and the matter postponed to 30 May 2019.

6 See prayer 2 at CaseLines 001-9 read with paras 16, 17, 18 and 19 at CaseLines 001-8.
7 See CaseLines at 003-15.
8 See the Defendants’ Plea, para 6.1 at CaseLines 003-13.

[13] The Plaintiff made sundry appearance until 22 January 2020 where the
Plaintiff was acquitted, following a trial.

[14] Throughout the period, from 13 May 2019 (date of arrest) until 22 January
2020 (date of release), the Plaintiff was in detention.

Issues for determination

[15] There are three questions as follows:
15.1. First: whether the arrest was lawful. Attended to this question, whether
the statement of the arresting officer (one Warrant Officer Ndwamato Daniel
Rangolo) may be admitted into evidence in terms of section 3(1)(c) of the Law
of Evidence Amendment Act, 1988 as amended.
15.2. Second: should the arrest be unlawful, one needs to determine the
period of unlawful detention and the appropriate quantum for compensating
such attendant unlawful detention.
15.3. Third: whether there was malicious prosecution.

[16] I turn to address whether the arrest was lawful and also, whether the
statement of the arresting officer may be admitted into evidence.

Admission into evidence of arresting officer’s statement

[17] At the commencement of the Defendants’ case, an application in terms of
section 3(1)(c) of the Law of Evidence Amendment Act, 1988 (as amended) was
brought. In terms of this application, the Defendants, especially the First Defendant
sought to have admitted into evidence the statement of the arresting officer (one Mr
Ndwamato Daniel Rangolo), without calling the arresting officer to testify and without
cross examination. The application was opposed by the Plaintiff.

[18] The statement constitutes hearsay evidence and as a result, in order for it to
be admitted into evidence I must be satisfied that the requirements for admission of
the hearsay evidence have been met. The factors listed in section 3(1)(c) must be

viewed holistically and weighed collectively in determining whether it is in the
interests of justice to admit the hearsay evidence.9

[19] The factors that bear consideration when a court is determining whether it is
in the interests of justice for the statement to be admitted are:
19.1. the nature of the proceedings;
19.2. the nature of the evidence;
19.3. the purpose for which the evidence is tendered as evidence;
19.4. the probative value of the evidence;
19.5. the reason why the evidence is not given by Mr Rangolo;
19.6. any prejudice which the admission of the evidence might entail for the
applicant; and
19.7. any other factor which should, in the opinion of the court, be taken into
account.

[20] In support of the application, the Defendants referred this Court to the
decision of the Constitutional Court in Kapa v S
10 for the proposition that the Bill of
Rights do not entitle nor guarantee that all evidence should be subjected to cross
examination. One ought to look at whether the evidence sought to be admitted
contains some truthfulness, reliability and some probative value.

[21] The Supreme Court of Appeal in Ndhlovu
11 held that section 3(1)(c)’s criteria
– which must be “interpreted in accordance with the values of the Constitution and
the ‘norms of the objective value system’ it embodies” – protects against the
unregulated admission of hearsay evidence and thereby sufficiently guards the rights
of accused.
12

[22] The Supreme Court of Appeal in Ndhlovu defined “probative value” in the
following terms:

9 Kapa v S (CCT 292/21) [2023] ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) (24
January 2023) para 77.
10 Kapa v S (CCT 292/21) [2023] ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) (24
January 2023)
11 S v Ndhlovu and Others (327/01) [2002] ZASCA 70; [2002] 3 All SA 760 (SCA); 2002 (6) SA 305
(SCA); 2002 (2) SACR 325 (SCA) (31 May 2002).
12 Ndhlovu para 16.

“‘Probative value’ means value for purposes of proof . This means not only,
‘what will the hearsay evidence prove if admitted?’, but ‘will it do so reliably?’
In the present case, the guarantees of reliability are high. The most
compelling justification for admitting the hearsay in the present case is the
numerous pointers to its truthfulness.”13

[23] The enquiry also encompasses the extent to which the evidence is considered
to be reliable as well as the exercise of balancing the probative value of the evidence
against its prejudicial effect.
14

[24] There are a host of factors relevant to the reliability question, namely: (a) any
interest in the outcome of the proceedings by the witness; (b) the degree to which it
is corroborated or contradicted by other evidence; (c) the contemporaneity and
spontaneity of the hearsay statement; and (d) the degree of hearsay.
15 Having
considered the matter and the statement, I am persuaded that the statement of the
arresting officer is relevant because:
24.1. The arresting officer prepared the arrest statement immediately after
arresting the Plaintiff. The statement, itself, contains no more than explaining
the reasons for the arrest.
24.2. No facts stated in the arresting statement were contradicted by any
witness that came before this Court to give oral testimony. What is more, the
Plaintiff’s own testimony confirmed the contents of the arresting officer’s
statement.
24.3. It beckons mentioning that the parties agreed to have the statement of
the Complainant admitted into evidence and that statement is essentially of
the same content as the arresting statement but for the minor difference that
the arresting statement mentions the fact of the arrest.
24.4. That the Plaintiff was arrested and the date of the arrest are common
cause means that the arresting statement will merely collaborate these facts.
The Plaintiff can suffer no prejudice in that regard.

13 Ndhlovu para 45
14 Kapa para 41
15 Kapa para 42.

24.5. The police docket was opened on 01 May 2019 and at the time of
arrest, the police docket contained the Complainant’s statement , list of stolen
items (through use and/or threat of force) and the Complainant was well
acquainted with the Plaintiff plus was pointed the Plaintiff out. These facts
which are part of the evidence echo the contents of the arresting statement.
24.6. Simply put, the arresting statement will not contribute any new fact
apart from stating that the Plaintiff was arrested by the person who alleges
arrested the Plaintiff.

[25] When the Plaintiff was asked what prejudice he would suffer if the arresting
officer’s statement were admitted into evidence, this is what he said in his written
submissions:
“[26] My Lord in this case the original witness is also the author of the now
contested arresting officer written statement filed in the Police docket . The
Respondent had indicated in the submission of merits opening statement that
they are going to challenge the credibility of this written statement of the
arresting officer when he is cross examined.”

[26] Of the witnesses that testified, no credibility issues arose, and those
witnesses quintessentially collaborated the contents of the arresting statement .
Making matters worse for the Plaintiff, the Plaintiff’s own testimony confirmed the
contents of the arresting statement . I have mentioned that the Plaintiff admitted into
evidence, by agreement, the Complainant’s written statement. That statement
contains the same material content as the arresting statement.

[27] That is, it is already part of common cause facts that the Plaintiff was arrested
for the crime of robbery on 13 May 2019 and that the Plaintiff was arrested at house
number 1948 Zone 9, Meadowlands. It is also already part of evidence that the
Plaintiff was pointed out by the Complainant. In fact, the Plaintiff testified that the
Complainant accompanied the arresting officer and it was the Complainant (known

Complainant accompanied the arresting officer and it was the Complainant (known
to the Plaintiff for over 22 years) who pointed the Plaintiff out.

[28] Ineluctably, the arresting officer’s statement is credible. It is thus difficult to
conceive of any scenario i n which the Plaintiff’s cross examination of the arresting
officer would lead an adverse credibility finding.

[29] I hasten to add, the Plaintiff failed to challenge the testimony of Sergeant
Esther Mokwele and who testified that the arresting officer was in possession of the
police docket when he went out to effect the arrest and that the police docket
contained the Complainant’s statement, the list of stolen items as well as the fact
that the Complainant pointed the Plaintiff out. I must then accept that that was the
information at the disposal of the arresting officer, when he effected the arrest. It is
this information that is interrogated in ascertaining whether the arrest without a
warrant is justifiable.

[30] One must also not lose sight of the fact that the question whether an arrest is
lawful or otherwise is tested objectively not subjectively. This Court already has
objective facts relating to the material that was considered by the arresting officer at
the time his arrest and those facts were not challenged by the Plaintiff.

[31] In saying all that, I have considered the grounds set out in section 3(1)(c) and
I am persuaded that the requirements are met for admission of the arresting officer’s
statement into evidence. There is one issue though, it is the manner in which the
Defendants approached this matter and especially their alleged attempt at tracing
their witness, the efforts lack much to be desired.

[32] This Court per Mooki AJ (as he then was) in the matter of Radebe v Minister
of Police
16 has accepted the justification of an arrest without the arresting officer
being called to testified and in circumstances where the arresting officer’s statement
was not admitted into evidence. Yet, in this matter the Defendants have gone the
extra mile of seeking leave to have the arresting officer’s statement admitted into

extra mile of seeking leave to have the arresting officer’s statement admitted into
evidence and in circumstances where the evidence is fully collaborated. I can see
no prejudice to the Plaintiff.


16 Unreported case with case number 4843/2021.

[33] In the alternative, even if there is prejudice to the Plaintiff it is outweighed by
the probative value of the contents of the arresting officer’s statement.

[34] I am thus inclined to grant the order . In the result, the arresting officer’s
statement is admitted into evidence in terms of section 3(1)(c) of the Law of
Evidence Amendment Act, 1988 as amended.

[35] I have one thing to mention, it is costs. The Defendant s argued that there
should be no costs ordered if successful. I do not agree.

[36] The conduct of the First Defendant warrants a costs order, despite being
successful in its application. This is because:
36.1. As early as 05 February 2025 the First Defendant became aware that it
was struggling to locate this witness. Other than failed telephonic attempts
(but for one occasion) it does not seem the First Defendant did anything to
pursue to the matter.
36.2. Indeed, during April 2025 when it became clear to the First Defendant
that the arresting officer had no interest in assisting the First Defendant, no
steps nor action was taken.
36.3. The First Defendant did not raise any of these difficulties during the
pre—trial conferences between the parties nor during the preparation of the
practice notes filed of record.
36.4. In argument, for the first time the First Defendant became aware that it
would need to bring this application on Friday 25 July 2025. No application
was prepared and not a word mentioned to the Plaintiff.
36.5. It was only during introduction at chambers that the intended
application was first mooted. That was on 29 July 2025 at around 09h20. It is
no wonder that the Plaintiff was not prepared to deal with the application when
it was eventually brought – orally – in open court.
36.6. To demonstrate that the First Defendant was prepared for its
application, it had a witness ready to deal with this very issue and indeed
called said witness. It seemed, no warning was given to the Plaintiff in this

called said witness. It seemed, no warning was given to the Plaintiff in this
regard and thus gravely prejudiced the Plaintiff.

36.7. Such conduct warrants sanction and for this reason, it is appropriate
and certainly apposite that the First Defendant be ordered to pay the costs of
the application.

[37] In the result, the application succeeds but the applicant (the First Defendant)
is to pay the costs of the application on scale A.

SUMMARY OF WITNESS TESTIMONY IN RESPECT OF ARREST

[38] I shall not luxuriate on the testimony but pithily summarise it as follows:

[39] The Plaintiff’s testimony:
39.1. He testified that he is a 60 year old male born on 05 November 1964
and that he resides at number 1[…] M[…] Zone 9.
39.2. That he was arrested on 13 May 2019 and that his rights were not read
nor was he told of his rights.
39.3. He testified that he did not say anything to the arresting officer during
his arrest.
39.4. Pursuant to the arrest he was taken to Meadowlands Police Station
and about an hour later, he was taken to Court for his first appearance.
39.5. That he was remanded in detention and the matter postponed for 30
May 2019. He then testified about his appearances and the fact that he was
released only on 22 January 2020 when he was acquitted.
39.6. He testified that he was told by his nephew that bail had been
suggested in the amount of R 5 000.00.
39.7. He testified that he was alleged to have robbed, at knife point, the
Complainant.
39.8. During cross examination, it emerged that bail was considered on his
first appearance but not proceeded with because of his previous conviction
which warranted that a formal bail application be brought. That the matter
was then postponed on the occasion of the first appearance for formal bail
application and appointment of his legal representative.
39.9. That, continued the cross examination, during his subsequent
appearance and armed with legal representation, he failed to bring an

application for admission to bail. Yet, he (through his legal representative)
was able to make other requests to the court, including a request for
disclosure and a request that the matter be referred to mediation.
39.10. It was then put to the Plaintiff that the Defendants could not be
responsible for his detention because his lawyer failed to bring an application
for his release on bail. The Plaintiff responded; “Okay, I hear you”.
39.11. He confirmed that the Complainant pointed him out and that the
Complainant was accompanying the arresting officer. He also testified that
the Complainant knew him for over 22 years and that he (the Complainant)
could not have been mistaken about his (the Plaintiff) identity . When it was
put to the Plaintiff that it “could not have been a case of mistaken identity ”, he
responded by saying “it is correct”.
39.12. He testified that he refused to give the Police his version and conceded
that in doing so, it meant that the Police could not compare his version to that
of the Complainant.

[40] While the above is a summary of the Plaintiff’s evidence as it relates to the
arrest and detention portion of the claim, it is important to indicate that in assessing
the Plaintiff as a witness, I do so wholistically. I found the Plaintiff to be an untruthful
witness and highly contradictory . There were a hosts of untruths and
misrepresentations during his testimony in chief which were suddenly conceded in
cross examination. For example,
40.1. Whereas in chief examination the Plaintiff testified that he did not have
a legal representative throughout the criminal trial, in cross examination he
conceded that but for the first appearance, he was represented throughout.
40.2. Whereas he alleged that, during chief examination, that he was not
afforded an opportunity to apply for bail, in cross examination he conceded
that the question of bail was mooted in the first appearance and when it

that the question of bail was mooted in the first appearance and when it
transpired that he has previous convictions, it was postponed for future
determination. Further that on future appearances, he (or his legal
representative) did not raise the question of bail.
40.3. Whereas he denied (during evidence in chief) that his rights were read
to him, he conceded in cross examination that his rights were read.

[41] These are some examples of blatant untruths and misrepresentations given in
the course of the Plaintiff’s testimony. His evidence was thus unreliable and stands
to be rejected. I accordingly reject the Plaintiff’s evidence.

[42] The First Defendant’s testimony:
42.1. Sergeant Mokwele testified and stated that she was the investigating
officer and received the police docket on 02 May 2019. She testified that the
docket was opened on 01 May 2019.
42.2. She testified that she was not present at the time the Plaintiff was
arrested but testified that the arresting officer had in his possession the police
docket when he went out to effect the arrest. She then testified that the police
docket contained the Complainant statement, and the list of stolen items. She
then stated that the Complainant pointed the Plaintiff out.
42.3. She completed the warning statement after interviewing the Plaintiff
and immediately took the Plaintiff to Court on the same date of his arrest, on
13 May 2019.
42.4. She then testified that given the contents of the police docket, the
arresting officer (Warrant Officer Rangolo) must have been satisfied regarding
the commission of the crime because the docket evinced all the elements of
the crime and it was clear who committed the crime, the weapon used and
coupled with the fact that the Plaintiff was pointed out.
42.5. She testified that the contents of the docket clearly evinced the
grounding of a suspicion and on objective reasonable grounds.
42.6. In cross examination, none of the above testimony was challenged.
The cross examination focused itself on how the warning statement was
completed and that the Plaintiff would argue that the warning statement ought
not be admitted into evidence.
42.7. If anything, the cross examination confirmed that the arresting officer
must have arrested based on the information contained in the police docket
and coupled with the fact that the Plaintiff was pointed out.

and coupled with the fact that the Plaintiff was pointed out.

[43] With the evidence laid out, I turn to the l egal principles applicable to resolving
the question of unlawfulness of an arrest, or otherwise.

LEGAL PRINCIPLES
a. General principles on arrest

[44] I mentioned, above, that the First Defendant invokes section 40(1)(b) of the
CPA in justifying the arrest. Section 40(1)(b) provides:
“A peace officer may without a warrant any person… whom he reasonably suspects
of having committed an offence referred to in Schedule 1.”

[45] It is trite that there are four jurisdictional facts to be proved in justification of a
section 40(1)(b) defence; namely,
45.1. The arrestor must be a peace officer,
45.2. The arrestor must entertain a suspicion,
45.3. The suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1; and
45.4. The suspicion must rest on reasonable grounds.
17

[46] Once the jurisdictional facts for an arrest are present, whether in terms of
section 40(1)(b) or other provision empowering the police to arrest, a discretion to
arrest arises.
18

[47] Further, Harms DP stated in Minster of Safety and Security v Sekhoto that
the:
“decision to arrest must be based on the intention to bring the arrested person
to justice…but a distinction must be drawn between the object of the arrest
and the arrestor’s motive. Object is relevant while motive is not… it explains
why the validity of the arrest is not affected by the fact that the arrestor, in
addition to bringing the suspect to court, wishes to interrogate or subject him
to an identification parade or blood tests in order to confirm, strengthen or
dispel the suspicion.”
19


17 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H
18 Ibid para 28
19 (2011 (1) SACR 315 (SCA); [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA)) [2010] ZASCA
141; 131/10 (19 November 2010) at paragraphs 28 -31

[48] In our case, it is clear that the First Defendant’s employees had exactly that
intention in mind as the Plaintiff was in court within 5 hours of his arrest.

b. Onus -justification of arrest

[49] The act of arrest is common cause and therefore, the First Defendant bore the
onus to justify the arrest; that is, to establish that the arrest was lawful.

[50] It is trite that the onus rests on a d efendant to justify an arrest. As Rabie CJ
explained in Minister of Law and Order v Hurley:
“An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to enquire that the person who
arrested or caused the arrest of another person should bear the onus of
providing that his action was justified in law.”
20

[51] This principle is captured further in Minister of Safety and Security and
another v Swart
21 where it was held at paragraph [20] that:
The onus rests on the arresting officer to prove the lawfulness of the arrest.
The reasonableness of the suspicion of any arresting officer acting under section
40(1)(b) must be approached objectively. The question is whether any reasonable
person, confronted with the same set of facts, would form a suspicion that a person
has committed a Schedule 1 offence.

[52] It is trite that once an arrest has been established, it is prima facie unlawful,
and the Defendant has to justify the arrest.
22

[53] This Honourable Court in Matsietsi referred to Minister of Justice v
Hofmeyr, wherein the then Appellate Division (per Hoexter JA) held:
‘The plain and fundamental rule is that every individual's person is inviolable.
In actions for damages for wrongful arrest or imprisonment our Courts have
adopted the rule that such infractions are prima facie illegal.’23

20 1986 (3) SA 568 (A) at 589E-F; see also Zealand v Minister for Justice and Constitutional
Development and another 2008 (2) SACR 1 (CC) para 24.
21 [2012] JOL 28772 (SCA).

Development and another 2008 (2) SACR 1 (CC) para 24.
21 [2012] JOL 28772 (SCA).
22 Matsietsi v Minister of Police (A3103/2015) [2017] ZAGPJHC 29 (20 February 2017).

[54] Furthermore, the Honourable Court referred again to Minister of Justice v
Hofmeyr (above) wherein the court further held:
‘Once the arrest or imprisonment has been admitted or proved it is for the
defendant to allege and prove the existence of grounds in justification of the
infraction.’ This pronouncement was in approval of the earlier decision in
Minister of Law and Order and others v Hurley and another where the Court
(per Rabie CJ) stated as follows: ‘An arrest constitutes an interference with
the liberty of the individual concerned, and it therefore seems to be fair and
just to require that the person who arrested or caused the arrest of another
person should bear the onus of proving that his action was justified in law.”
24

[55] In Duncan v Minister of Law and Order , Van Heerden JA explained that
once the jurisdictional requirements of s 40(1)(b) of the Criminal Procedure Act 51 of
1977 (the CPA), are satisfied, the peace officer may, in the exercise of his discretion,
invoke the power to arrest permitted by the law. However, the discretion conferred by
s 40(1) of the CPA must be properly exercised, that is, exercised in good faith,
rationally and not arbitrarily. If not, reliance on s 40(1) will not avail the peace
officer.
25

[56] The Plaintiff conceded that the arrest was lawful in terms of section 40(1)(b).
The Plaintiff merely contended that the arresting officer did not exercise his
discretion properly. However, I must stress what the Supreme Court of Appeal said
in Sekhoto”
“[44] While the purpose of arrest is to bring the suspect to trial the arrestor has
a limited role in that process. He or she is not called upon to determine
whether the suspect ought to be detained pending a trial. That is the role of
the court (or in some cases a senior officer) . The purpose of the arrest is no
more than to bring the suspect before the court (or the senior officer) so as to
enable that role to be performed. It seems to me to follow that the enquiry to

enable that role to be performed. It seems to me to follow that the enquiry to
be made by the peace officer is not how best to bring the suspect to trial: the

23 1993(3) SA 131(A) 153D-E
24 1986 (3) SA 568 (A) 589D-E
25 1986 (2) SA 805 (A) at 818G-H

enquiry is only whether the case is one in which that decision ought properly
to be made by a court (or the senior officer). Whether his decision on that
question is rational naturally depends upon the particular facts but it is clear
that in cases of serious crime – and those listed in Schedule 1 are serious, not
only because the Legislature thought so – a peace officer could seldom be
criticized for arresting a suspect for that purpose. On the other hand there will
be cases, particularly where the suspected offence is relatively trivial, where
the circumstances are such that it would clearly be irrational to arrest. This
case does not call for consideration of what those various circumstances
might be. It is sufficient to say that the mere nature of the offences of which
the respondents were suspected in this case ─ which ordinarily attract
sentences of imprisonment and are capable of attracting sentences of
imprisonment for 15 years ─ clearly justified their arrest for the purpose of
enabling a court to exercise its discretion as to whether they should be
detained or released and if so on what conditions, pending their trial.”
26

[57] In our case, it is clear that robbery is a schedule 1 offence and thus a serious
offence. For the reasons given by the Supreme Court of Appeal, the Plaintiff
conceded that in such circumstances the arrest must be said to be lawful.

[58] In the result, I am impelled to find that the arrest was lawful . A lawful arrest
does not lead to an unlawful detention, without more. We know that the post -first
appearance detention was sanctioned by the Magistrate (sitting as a Regional Court)
and that, too, after the question of bail had been considered.

[59] We know that the Plaintiff was remanded in detention and the matter
postponed to 30 May 2019. On the face of it, the remand detention period was
unlawful as it exceeds the statutory limit of “ not more than 7 days ”. This was

unlawful as it exceeds the statutory limit of “ not more than 7 days ”. This was
explained by the Defendants witnesses by stating that the court assigned prosecutor
was not available due to being on leave and that she would be back from leave on
the date of 30 May 2019, hence the postponement to that date. The explanation
was not challenged by the Plaintiff and ergo, it stands.

26 Sekhoto para 44.

[60] Even if it does not stand, that decision was not taken any of the Defendants
before Court and ergo, they cannot be held responsible nor liable for this detention. I
am not persuaded that the chain of causation was not broken by the first appearance
and for this reason, the Constitutional Court’s judgment in de Klerk
27 does not find
application in casu.

[61] The conduct of the police after an unlawful arrest, especially if the police
acted unlawfully when arresting the plaintiff, is to be evaluated and considered
through 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.
28

[62] There was not an iota of evidence suggesting the post -first appearance
detention was nonetheless unlawful and accordingly, this question does not arise.

[63] The result, I find that the arrest is lawful and no period of the detention was
unlawful.

[64] That then leaves the second claim, malicious prosecution.

MALICIOUS PROSECUTION

[65] The Plaintiff conceded that the prosecutors were simply performing their
duties. Crucially, the Plaintiff gave the answer “ I hear you” and no counter -version
when it was put to the Plaintiff that (a) “ the prosecutor had no intention to harass
you”, and (b) “ the prosecutor had an honest belief that you were going to be
convicted and hence they prosecuted you”.

[66] Yet, the evidence of two witnesses called on behalf of the Second Defendant
testified that they did not know the Plaintiff and could not have intended to cause the

27 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).
28 De Klerk at para 63.

Plaintiff harm by prosecuting him. They both testified that the prosecution was
informed the contents of the docket and which contents revealed a prima facie case.
It was testified that the Plaintiff failed to give his version and thus they could not have
considered it. However, with the information at their disposal, they were convinced
that the Plaintiff had committed the offence in question.

[67] Material evidence was not challenged by the Plaintiff and accordingly, I find
that there was no malicious prosecution.

Costs

[68] Costs follow the result , as a general rule. I see no reason to depart from this
longstanding legal principle.

[69] When I invited the parties on the appropriate scale for costs, both parties
agreed that scale B would be appropriate. I am satisfied that scale B is appropriate
in the circumstances and order that costs be on scale B.

Conclusion

[70] For all the reasons set out above, the Plaintiff has failed to prove that it was
unlawfully arrested and prosecuted maliciously. I say that mindful that the onus in
respect of an arrest is on the First Defendant . In so far as that is concerned, I am
satisfied that the First Defendant duly discharged the onus and justified the arrest.

[71] Crucially, as stated above, the Plaintiff conceded that the arrest was lawful.
The enquiry rests there and at that juncture.

Court Order

[72] In the circumstances, I make the following order:
1. The First Defendant’s application in terms of section 3(1)(c) of
the Law of Evidence Amendment Act, 1988 as amended is granted.
2. The First Defendant is ordered to pay the costs of the

application on party and party scale A.
3. The Plaintiff’s action is dismissed with costs on scale B.

K MVUBU
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG

Date of Hearing: 29, 30 & 31 July 2025
Date of Judgement: 01 August 2025

For the Plaintiff: Adv. M Maluleke
Instructed by: Matela Sibanyoni & Associates per Ms O Mgijima

For the Defendant: Adv. M Lekwape
Instructed by: The State Attorney, Johannesburg per Mr C Setlhatlole