1
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
__________
DATE SIGNATURE
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION
MBOMBELA (MAIN SEAT)
CASE NUMBER 829/2023
06 August 2025
ZETHU FLORENCE MKHABELA PLAINTIFF
And
THE MINISTER OF POLICE 1ST DEFENDANT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2ND DEFENDANT
JUDGMENT
SHAI AJ
2
Introduction and Background
[1] This is a claim for damages arising from an unlawful arrest and detention and
malicious prosecution.
[2] The plaintiff herein was arrested on 23 July 2020.
[3] She was then detained at Kanyamazane Police Station. She was taken to court
on 27 July 2020 for her first court appearance where bail was fixed at R1000-00.
[4] She was unable to p ost bail and was further remanded in custody where she
was released on 24 August 2020 when bail was posted by her parents.
[5] On circumstances of her arrest, Plaintiff testified that she was arrested after she
was found on the premises of one Dumisani Mdluli.
[6] She was on these premises as she wanted to ask for water. On her arrival she
found Mr Mdluli in the presence of an unknown male.
[7] As she was there some peo ple arrived, spoke to Mr Mdluli and went into the
house with him. It was at this stage that the unknown male left the premises.
[8] An argument later ensued between Mr Mdluli and these people and that is when
she fathomed that items were found in the house and somehow these items were
linked to a crime commission.
[9] She was taken to various places with Mr Mdluli where items were pointed out
and they were later taken to the police station where she was also detained. It was
said that she committed housebreaking.
First Defendant’s case
[10] The first defendant called Mr Shiba, who testified that on the date of arrest
Plaintiff was brought to the police station by a group of individuals. He then detained
the Plaintiff so that further investigations could take place.
3
[11] The Plaintiff was arrested for burglary/housebreaking. It was said that items
were found in a house the yard whereof the Plaintiff was found.
[12] There was no evidence that Plaintiff was involved in the burglary and that she
was found in possession of any stolen items.
[13] The second witness testified that he was the investigating officer in the matter
for which the plaintiff was arrested. He saw the Plaintiff and other suspects on the
morning of 27 July 2020.
[14] There was no evidence in the docket linking the Plaintiff to either the crime of
housebreaking or possession of suspected stolen property.
Second Defendant’s case
[15] Mrs Msimango testified that upon perusal of the docket she could not enrol the
case for housebreaking against the Plaintiff as there was no evidence to that effect.
[16] She enrolled it for possession of suspected stolen property as it was stated by
witnesses that Plaintiff was found on the premises where the suspected stolen
property was found.
[17] She later withdrew the charges as there was insufficient evidence to prosecute
the Plaintiff on.
Issue
[18] The issues for determination are whether:
18.1 the plaintiff was lawfully arrested and detained in terms of s 40(1) (b) of the
CPA;
18.2 the defendants are liable for the plaintiff’s continued detention post-court
appearance until the matter was withdrawn.
18.3 the second defendant, acting in concert with the first defendant, maliciously
prosecuted the plaintiff.
4
Arrest
[19] It is trite that an arrest or detention is prima facie wrongful. Section 40(1) (b) of
the CPA provides that a peace officer may without a warrant arrest any person whom
he reasonably suspects of having committed an offence referred to in schedule 1,
other than the offence of escaping from lawful custody. The arrest would be la wful if
the arresting officer successfully establishes the jurisdictional factors, and he/she may
invoke the power conferred by s 40(1) (b) to arrest the suspect unless the plaintiff
demonstrates that the discretion to arrest him/her was exercised unlawfully.
[20] Before a person could be arrested without a warrant, the jurisdictional facts
provided for in section 40 (1)(b) should be present.1
[21] A claim under the actio iniuriarum for unlawful arrest and detention has specific
requirements:
(a) the plaintiff must establish that their liberty has been interfered with;
(b) the plaintiff must establish that this interference occurred intentionally.
In claims for unlawful arrest, a plaintiff need only show that the defendant
acted intentionally in depriving their liberty and not that the defendant
knew that it was wrongful to do so;2
(c) the deprivation of liberty must be wrongful, with the onus falling on the
defendant to show why it is not;3 and
1 De Klerk v Minister of Police (329/17) [2018] ZASCA 45 (28 March 2018)
2 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154H-J.
3 Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008(2) SACR 1
(CC), at paras 24-5.
5
(d) the plaintiff must establish that the conduct of the defendant must have
caused, both legally and factually, the harm for which compensation is
sought.4
[22] It should be borne in mind, against all the aforesaid, that the eventual conviction
or acquittal of a person previously arrested is not of itself proof that the arrest was
lawful or unlawful5.
[23] In casu, the Plaintiff was apprehended by members of the community and taken
to the police station . Mr Shiba states in his testimony that he arrested and detained
the plaintiff despite the plaintiff not being linked to the commission of the offence. He
further states that the detention was for further investigations. It is as clear as daylight
from Mr Shiba’s testimony that the jurisdictional factors laid down in section 40(1)(b)
have not been met.
[24] Consequently, I find the arrest to have been unlawful.
Detention
[25] Detention is, in and by itself, unlawful. The onus rests on the detaining officer to
justify it.6 The Constitutional Court remarked that the question whether the applicant’s
detention was consistent with the principle of legality and his right to freedom and
security of the person in s 12 of the Constitution, is a constitutional matter. S 12(1) of
the Constitution guarantees that everyone has the right to freedom and security of the
4 Loubser above n 15 at 27.
5 R v Moloy 1953 (3) SA 659 (T) at 662E
6 Zealand above, at paragraph 24
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person, which includes the right not to be deprived of freedom arbitrarily or without just
cause.
[26] Even where an arrest is lawful, a police officer must apply his mind to the
arrestee's detention and the circumstances relating thereto. Failure by a police officer
properly to do so is unlawful.
[27] The aforesaid means that even where the arrest is lawful, the police officer
should make an enquiry on whether the arrestee should be detained or not. In this
case.
[28] I have, in casu, already found that the arrest is unlawful. No lawful detention
can follow from an unlawful arrest of the nature herein where, by the evidence of the
police officer and the prosecutrix, the plaintiff could not be linked in any way to the
commission of the offence.
[29] Even if it were to be found that the plaintiff was lawfully arrested , the police
officer is enjoined to, before detaining the plaintiff, appl y his mind to the arrestee's
detention. It is not stated as to why the police officer deemed detention necessary.
[30] In therefore follows that the detention was unlawful.
Detention post-court appearance
[31] It was held in the De Klerk7 case that “In cases like this, the liability of 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
7 De Klerk v Minister of Police [2019] ZACC 32
7
considerations. This may include a consideration of whether the post-appearance
detention was lawful.
[32] It was held in the De Klerk case that both factual and legal components of
causation should be looked at. One is therefore bound to look at whether the act or
omission caused or materially contributed to the harm. 8 Factual causation is
determined by applying the “but-for” test ( conditio sine qua non ). In this case, for
instance, the application would be as follows: If, but for the conduct of the police, the
plaintiff would not have been detained, then it would be the conduct of the police that
factually caused the detention. Furthermore, if it is found that but for the arrest by the
police, the magistrate would not have fixed the unaffordable bail and remanded the
plaintiff in custody the conduct of the police would be found to have occasioned the
further detention.
[33] The Court in mCubed International (Pty) Ltd 9 held that legal causation entails
an enquiry into whether the wrongful act is sufficiently closely linked to the harm for
legal liability to ensue. A wrongdoer is not liable for harm that is too remote from the
conduct concerned10 or harm that was not foreseeable.11
8 Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G:
9 mCubed International (Pty) Ltd v Singer N.O. [2009] ZASCA 6; 2009 (4) SA 471 (SCA) at paragraph 22
10 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd [2008] ZASCA 134; 2009 (2) SA 150 (SCA) at
paras 30-2
11 Country Cloud Trading CC v MEC: Department of Infrastructure Development [2013] ZASCA 161; 2014 (2) SA
214 (SCA) at para 27.
8
[34] Theron J in Bryan James De Klerk v the Minister of Police12 remarked:
“[81] Constable Ndala subjectively foresaw the precise consequence of her
unlawful arrest of the applicant. She knew that the applicant’s further detention
after his court appearance would ensue. She reconciled herself to that
consequence. What happened in the reception court was not, to Constable
Ndala’s knowledge, an unexpected, unconnected and extraneous causative
factor – it was the consequence foreseen by her, and one which she reconciled
herself to. In determining causation, we are entitled to tak e into account the
circumstances known to Constable Ndala. These circumstances imply that it
would be reasonable, fair, and just to hold the respondent liable for the harm
suffered by the applicant that was factually caused by his wrongful arrest. For
these reasons, and in the circumstances of this matter, the court appearance
and the remand order issued by the Magistrate do not amount to a fresh
causative event breaking the causal chain.”
[35] A remand of a case after first appearance is a natural concomitant where an
accused fails to post bail. It should be a known fact to any trained police officer. Mr
Shiba should have foreseen the eventual further detention of the plaintiff in the event
that bail is not posted.
[36] The police set the wheel in motion. Their conduct is closely linked to the further
detention to attract liability. But for the unlawful arrest, the plaintiff could not have been
detained and be further detained after the first court appearance. The first defendant
12 Bryan James De Klerk v Minister of Police [2019] ZACC 32 at paragraph 81
9
should be held liable for detention pre -court appearance and detention post -court
appearance.
[37] The prosecutrix testified that she determined that the plaintiff was not linked to
the commission of housebreaking. It is not disputed that the plaintiff was not found in
possession of any property involved in the alleged housebreaking. It boggles one’s
mind in understanding on what basis the prosecutrix decided on charging the plaintiff
for possession of suspected stolen property.
[38] Had the prosecutrix exercised due diligence in assessing or screening the
docket, charges would not have been preferred against the plaintiff. At most, t he
plaintiff would not have been further detained after the first appearance. The failure by
the prosecutrix to exercise due diligence and properly screen the docket led to the
plaintiff’s further detention.
[39] I therefore find that both the second defendant ’s conduct caused the plaintiff’s
post-court appearance detention.
[40] I find that the second defendant should also be held liable for detention post-court
appearance detention.
Malicious prosecution
[41] Malicious prosecution consists in the wrongful and intentional assault on the
dignity of a person comprehending also his or her good name and privacy13.
[42] To succeed with a malicious prosecution claim, the plaintiff must allege and
prove that-
13 Heyns v Venter 2004 (3) SA 200 (T) 208B
10
42.1 the defendants set the law in motion (instituted or instigated the proceedings);
42.2 the defendant acted without reasonable and probable cause;
42.3 the defendant acted with malice (or animo iniuriarum); and
42.4 that the prosecution failed. In this instance, the plaintiff bears the onus of proof
to establish each, as alluded. 14 It is the evidence of the second defendant’s witness
that plaintiff’s case was struck off the roll due to lack of evidence.
[43] In Waterhouse v Shields15 Gardiner J remarked:
“The first matter the plaintiff has to prove is that the defendant was actively
instrumental in the prosecution of the charge”.
[44] The police official gave a fair and honest statement of the relevant facts to the
prosecutrix, leaving it to her to decide whether to prosecute or not.
[45] The prosecutor should have reasonable and probable cause to prosecute.
Reasonable and probable cause means an honest belief founded on reasonable
grounds that the institution of proceedings is justified. In Beckenstrater v Rotter and
Theunissen16 Schreiner JA laid down the test for reasonable and probable cause and
said:
“When it is alleged that a defendant had no reasonable cause for prosecuting,
I understand this to mean that he did not have such information as would lead
a reasonable man to conclude that the plaintiff had probably been guilty of the
14 Minister of Safety and Security v Lincoln 2020 (2) SACR 262 (SCA)
15 1924 (CPD) 155 AT 160
16 1955 (1) SA 136 (A) 136A-B
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offence charged; if, despite his having such information, the defendant is shown
not to have believed in the plaintiff's guilt, a subjective element comes into play
and disproves the existence, for the defendant, of reasonable and probable
cause.”
Animus iniuriandi
[46] However, to succeed in this claim, the plaintiff must allege that the defendant
intended to injure him (either dolus directus or indirectus). Animus iniuriarum includes
not only the intention to injure but also the consciousness of wrongfulness. Van
Heerden JA in Minister of Justice and Constitutional Development and Others v
Moleko17 remarked:
“[63] In this regard animus in iuriandi (intention) means that the
defendant directed his will to prosecuting the plaintiff (and thus infringing his
personality), in the awareness that reasonable grounds for the prosecution
were (possibly) absent, in other words, that his conduct was (possibly) wrongful
(consciousness of wrongfulness). It follows from this that the defendant will go
free where reasonable grounds for the prosecution were lacking, but the
defendant honestly believed that the plaintiff was guilty. In such a case the
second element of dolus, namely of consciousness of wrongfulness, and
therefore animus iniuriandi, will be lacking. His mistake therefore excludes the
existence of animus iniuriandi.”
17 [2008] 3 All SA 47 (SCA) at 63
12
[47] It is the evidence of Mrs Msimango that she could not link the plaintiff to the
commission of housebreaking. She decided to ch arge her with possession of
suspected stolen property as plaintiff was found on the premises where the property
was found. She, however, decided at a later stage not to proceed with the prosecution.
I cannot find that she genuinely believed that there was a reasonable and probable
cause to proceed with the prosecution. Her decision to withdraw the charges should
have been taken even before bringing the plaintiff to court. Her wanton disregard for
facts not warranting prosecution shou ld be regarded as indirect malice or animus
iniuriandi.
[48] I am satisfied that the plaintiff established that there was malicious prosecution
and it is so found. Consequently, the claim for malicious prosecution should succeed.
Quantum
[49] Past awards can be used for guiding the Court in determining what a fair and
reasonable compensation is.
49.1 It was held in Minister of Safety and Security v Seymour18 that “The
assessments of awards of general damages with reference to awards in previous
cases is fraught with difficulty. The facts of a particular case need to be looked at as
a whole and few cases are directly comparable. They are useful guide to what other
courts have considered to be appropriate but they have no higher value than that”.
18 2006(6)SA 320(SCA) para 17
13
49.2 In Maphalala v Minister of Law and Order (WLD, Case No. 29537/93, 10
February 1995), the Plaintiff therein was detained for approximately three (3) months
and assaulted. He was awarded an amount of R145 000 (presently R300 000).
49.3 In Sibuta and Another v Minister of Police and Another19 the Plaintiff therein
was awarded R470 000 for unlawful arrest and detention, he having been detained
for fifteen (15) days.
49.4 In Oriyomi v Minister of Police20 the Plaintiff therein was awarded R120 000,
he having been in detention for about four days
49.5 In De Klerk v Minister of Police21 the plaintiff was granted R30 000 for having
spent almost an hour in detention.
[50] I have herein considered the circumstances of the arrest, the nature and
duration of the detention and the fact that the charges were eventually withdrawn.
[51] Plaintiff testified that while in custody she was humiliated, inmates were taking
her food, she was not getting enough toiletry and had to use T-shirts during her
ovulation; her good name is tainted in the community; her trade as a traditional
leader had been affected as she is now labeled a criminal.
[52] I compared previous awards in similar cases like this one, which serve as a
useful guide, cognisance of the fact that each case must be treated according to its
own merits.
19 (3709/2016; 3710/2016[2020] ZAECGHC 6(15 January 2020)
20 (14132/13) [2020] ZAGPPHC 224 (6 April 2020)
21 (329/17) [2018] ZASCA 45 (28 March 2018)
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This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time for hand-down is deemed to be 11h00 on
06 August 2025
FOR THE PLAINTIFF: TP Radebe Attorneys
Mbombela
tpradebeattorneys03@gmail.com
FOR THE DEFENDANT: THE STATE ATTORNEY-MBOMBELA
C/O Chigo Attorneys
MBOMBELA
info@chigoattorneys.co.za
DATE OF HEARING: 25 March 2025
DATE OF JUDGMENT: 06 August 2025