2
2 D gave a statement to the police prior to the arrest, relaying what K had told
her. K was examined on 10 August 2018. The examination revealed injuries
to K’s vagina consistent with penetration. The injuries were not recent, which
was consistent with an attack on K some months before she reported the
attack to D. K herself gave a statement to the Soweto Family Violence Child
Protection and Sexual Offences Unit on 11 August 2018, in which she said
she had been raped at B’s house by a man known to her as Linda. It was
common cause at trial that K’s reference to Linda was a reference to Mr.
Mngomezulu.
3 Mr. Mngomezulu gave no comment to the police at his post-arrest interview.
He appeared at the Protea Magistrates’ Court on 13 August 2018. He was
eventually granted bail on 24 August 2018. On 1 October 2018 the case
against him was provisionally withdrawn. Before me, the Control Prosecutor,
a Mr. Madibela, said that the decision to provisionally withdraw the case was
made on the basis that a statement had not been obtained from B, who, Mr.
Madibela had been told, was present when K’s rape took place. A statement
was eventually obtained from B on 11 May 2019. In it, B denied any knowledge
of the incident. The prosecution has not been pursued further in the six-and-
a-half years since B’s statement was made.
The wrongful arrest claim
4 Mr. Mngomezulu was arrested without a warrant on the authority of section 40
(1) (b) of the Criminal Procedure Act 51 of 1977. An arrest without a warrant
under this section is lawful if and only if the arrestor is a peace officer; the
arrestor entertains a suspicion; that suspicion is that the arrestee has
3
committed an offence identified in Schedule 1 of the Act; and that suspicion
rests on reasonable grounds (see Duncan v Minister of Law and Order 1986
(2) SA 805 (A) at 818G – H). In an action for wrongful arrest, the onus of
establishing these requirements rests on the first defendant, the Minister.
5 Sergeant Xolisa Mbiza was the only witness called to discharge that onus on
the Minister’s behalf. On 9 August 2018, Sgt. Mbiza was an ordinary constable
on patrol in Soweto. He was called to Jabulani Police Station, where he met
D. Officers to whom he referred as his “colleagues” at the police station – he
did not say who – introduced Sgt. Mbiza to D and told him to accompany her
and arrest Mr. Mngomezulu. Sgt. Mbiza went to Mr. Mngomezulu’s house with
Constable Vilakazi and Sgt. Heisi, with whom he had been out on patrol earlier
in the day. D pointed out Mr. Mngomezulu to Sgt. Mbiza, who then arrested
Mr. Mngomezulu on suspicion of rape.
6 There is no dispute that Sgt. Mbiza was a peace officer at the time he arrested
Mr. Mngomezulu. Nor is there any dispute that rape – the offence for which
Mr. Mngomezulu was arrested – is a schedule 1 offence. However, despite a
valiant effort from Ms. Khosa, who appeared for the Minister, Sgt. Mbiza did
not set out, in his evidence-in-chief, the basis on which he suspected Mr.
Mngomezulu of having committed that offence.
7 At the point of arrest, only D’s statement was available to the police. Both the
report on K’s medical examination and K’s statement identifying Mr.
Mngomezulu were only generated after the arrest. Sgt. Mbiza did not say, in
his evidence-in-chief, that he had seen D’s statement. What Sgt. Mbiza did
say was damning. He said that he did not need a suspicion of any sort to arrest
4
Mr. Mngomezulu. All he needed was an instruction from his unnamed
colleagues that Mr. Mngomezulu had been accused of a serious offence,
together with D’s identification of Mr. Mngomezulu.
8 This is, of course, grossly wrong. There was a duty on Sgt. Mbiza to consider
and act on information linking Mr. Mngomezulu to K’s rape and to assess
whether that information give rise to a reasonable suspicion that Mr.
Mngomezulu had committed it. Furthermore, Sgt. Mbiza was required to
“analyse and assess the quality of the information at his disposal critically”. He
was not entitled to “accept it lightly or without checking it where it [could] be
checked”. It is “only after an examination of this kind” that Sgt. Mabiza should
have allowed himself to entertain the suspicion that would have justified Mr.
Mngomezulu’s arrest (Mabona v Minister of Law and Order 1988 (2) SA 654
(SE) at 658E-H, approved at Powell NO v Van Der Merwe NO 2005 (5) SA 62
(SCA) at paragraph 38).
9 The admissions made by Sgt. Mbiza during his examination-in-chief were
inconsistent with the required assessment. Sgt. Mbiza was not a cog in a
bureaucratic machine, acting only on instructions from his superiors or
colleagues. His was vested with the power to arrest Mr. Mngomezulu without
a warrant if and only if he himself had considered the relevant material and
formed the reasonable suspicion that Mr. Mngomezulu had raped K on the
basis of that material. That suspicion had to be formed on the evidence
relevant to the offence presented directly to him. It did not arise simply
because he received instructions from other police officers to effect an arrest.
I think this would have been so even if those officers themselves reasonably
5
suspected Mr. Mngomezulu of raping K. However, given that no-one other
than Mr. Mbiza testified about the arrest on the Minister’s behalf, I need not
go that far.
10 Faced with such frank admissions, wiser counsel might have declined to
cross-examine Sgt. Mbiza at all. However, Mr. Magwane, who appeared for
Mr. Mngomezulu, cross-examined Sgt. Mbiza extensively. It was during cross-
examination that it dawned on Sgt. Mbiza that he had made damning
admissions during his evidence-in-chief. Sgt. Mbiza tried to walk those
admissions back by saying that he had acted after having interviewed D in the
presence of his colleagues. Even then, however, Sgt. Mbiza still could not get
it quite right. He adjusted his earlier statement by emphasising the importance
of his alleged interview of D rather than the instructions he received from his
unnamed colleagues. Nonetheless, he frankly admitted that he had not read
D’s statement prior to Mr. Mngomezulu’s arrest. Nor did he say what it was
about the interview he says he conducted with D that generated a suspicion –
reasonable or otherwise – that Mr. Mngomezulu had raped K. Even in cross-
examination, Sgt. Mbiza said nothing that remotely approximated a sound
rational basis for arresting Mr. Mngomezulu on suspicion of K’s rape.
11 Sgt. Mbiza was a very poor witness. He seemed at sea during much of his
evidence. He was plainly only dimly aware that a reasonable suspicion that
the arrestee has committed a serious offence is necessary before a
warrantless arrest can be made. He was clearest and most confident when
asserting (wrongly) that he needed only an instruction from another police
officer and an allegation that a sufficiently serious offence had been
6
committed. Accordingly, I reject as wholly improbable the proposition that Sgt.
Mbiza applied his mind to whether such material as was before him founded
a reasonable suspicion that Mr. Mngomezulu had raped K. I also reject Sgt.
Mbiza’s version that he interviewed D, an assertion not made in his
contemporaneous statement, and which appeared to me to have been tagged
on to his cross-examination to make up for the damaging admissions he made
in his evidence-in-chief. The fact that Sgt. Mbiza accepted that he did not read
D’s statement renders it unnecessary to consider whether D’s statement
would, on its own, have been enough to ground a reasonable suspicion that
Mr. Mngomezulu had committed K’s rape.
12 Since Sgt. Mbiza was the sole witness called to justify the arrest, and the onus
to justify the arrest falls upon the Minister, the claim for wrongful arrest and
detention must succeed.
The malicious prosecution claim
13 In order to uphold the malicious prosecution claim, I must find that one or both
of the defendants set the law in motion against Mr. Mngomezulu; that they did
so without reasonable and probable cause; that they did so maliciously; and
that the prosecution has failed (see Minister for Justice and Constitutional
Development v Moleko 2009 (2) SACR 585 (SCA), paragraph 8).
14 In light of my conclusion on the wrongfulness of Mr. Mngomezulu’s arrest, the
only one of these elements capable of sustaining any controversy is that of
malice. The Minister clearly set the law in motion; he did so without reasonable
and probable cause (at least at the point of arrest); and the prosecution of Mr.
Mngomezulu failed when the charge was withdrawn.
7
15 I cannot accept that malice has been established. The arrest was inept, but it
was not malicious. The police officers who instructed Sgt. Mbiza to arrest Mr.
Mngomzulu had a statement from D, which was later supplemented by a
medical report confirming that an offence had been committed, together with
a statement from K herself which identified Mr. Mngomezulu. Sgt. Mbiza may
have been sorely mistaken about what he needed to consider before he
arrested Mr. Mngomezulu, but his incompetence was so grave as to exclude
the kind of active malice required to sustain a malicious prosecution claim. In
other words, to be fairly characterised as malicious, Sgt. Mbiza would have to
have known that there was no basis on which to arrest Mr. Mngomezulu. As
was clear from the evidence, Sgt. Mbiza knew very little at all – other than that
he had been told to go and arrest Mr. Mngomezulu.
16 For his part, Mr. Madibela was perfectly entitled to place the matter on the
criminal court roll on the basis of D’s statement, K’s statement and the medical
report confirming K’s vaginal injuries. Whatever the inherent strengths or
weaknesses of a case reliant solely on that evidence, such a prosecution
cannot realistically be called malicious. The only criticism that might
reasonably be made of the conduct of the prosecution is that it was abandoned
too early. The malicious prosecution claim fails.
Damages and costs
17 The parties were agreed that, if I upheld the wrongful arrest and detention
claim, R350 000 would be the appropriate measure of general damages. This
is well within the guideline set in De Klerk v Minister of Police 2021 (4) SA 585
(CC), in which the plaintiff was awarded R300 000 in general damages in
8
respect of 7 nights’ detention. Mr. Magwane accepted that I had not heard the
evidence necessary to sustain Mr. Mngomezulu’s pleaded claim for loss of
income. Costs must follow the result, but I do not think that this case justifies
an award of counsel’s costs beyond those permitted on scale “A”.
Order
18 The most unfortunate feature of this case is that a wrongful arrest claim has
been sustained in circumstances where the arresting officer ignored or did not
take the necessary steps to obtain objectively available material that would
have allowed him to form the reasonable suspicion necessary to effect the
arrest lawfully. I have my doubts about whether D’s statement would have
been enough, on its own, to ground such a suspicion. But there is no doubt in
my mind that once that D’s statement had been supplemented with K’s
statement and the medical report – both of which were only obtained after Mr.
Mngomezulu’s arrest – a reasonable arresting officer would easily have
formed a reasonable suspicion that Mr. Mngomezulu had raped K.
19 By failing to acquaint themselves fully with the material that was available on
9 August 2018, and perhaps also by refusing to wait for more evidence to
become available, Sgt. Mbiza, together with whomever directed him to arrest
Mr. Mngomezulu on the evening of 9 August 2018, acted with gross
incompetence. The cost of that incompetence sounds not just in the award
that I am now duty-bound to make, but in the anguish no doubt caused to D
and K, both of whom the justice system has plainly failed. Whomever K’s
assailant was, nowhere near enough was done to bring them to justice in a
manner consistent with the applicable law. We must do better than this.