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(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 1655/2020
06 August 2025
SABELO ARMY NDHAMINI PLAINTIFF
And
THE MINISTER OF POLICE 1ST DEFENDANT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2ND DEFENDANT
JUDGMENT
SHAI AJ
Introduction and Background
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[1] This is a claim for damages based on an unlawful arrest and detention.
[2] The first defendant defends same on the basis that, inter alia, its employees
were not responsible for effecting arrest. It is further alleged by the first defendant that
security officers effected the arrest.
[3] The second respondent raised a special plea of non -service which was
summarily dismissed. The reasons for dismissal of same are dealt with hereunder.
Plaintiff’s case
[4] The plaintiff testified as follows:
4.1 He was arrested by security officers on 21 January 2019. He was taken to
Hazyview Police station, where his arrest and detention rights were read to him by a
female officer. He was then detained.
4.2 The conditions in the cells were unbearable as he was detained in a small, dirty
cell. In the cell he found about fifteen inmates who demanded smoke from him. He lied
and promised he would give them smoke. After a moment they hit him with fists.
4.3 He initially appeared in White River Court and had to be transferred to Hazyview
for his next appearance. Nothing happened in White River, other than bail discussions.
In Hazyview, the matter was postponed several times before his bail application was
heard and denied. The matter was then transferred to the Regional Court, where it
was withdrawn.
4.4 He spent 6 months at the police station. The remainder of his detention was at
Nelspruit Prison. The conditions in prison were not ideal, but he was not assaulted in
prison. Collectively, he was in detention for a period of nine months.
4.4 From the pleadings, it is common cause that the plaintiff was arrested on 2 1
January 2019, appeared in court on 22 January 2019 and the charges were withdrawn
on 16 October 2019.
3
First defendant’s case
[5] Sindi Miranda Mkhabela (“Sergeant Mkhabela”) testified and her testimony can
be summarised as follows:
5.1 She is employed by the SAPS as a police officer stationed at Bushbuckridge.
She was stationed at Hazyview before 2022, where she was from 2005 to 2018. She
held the rank of Sergeant, working as an investigator.
5.2 She started knowing the plaintiff during his arrest. He was arrested by security
guards who handed him over to Sergeant Sibuyi, an officer who was attached to
Hazyview Police Station.
5.3 A case has been earlier opened before and assigned to her as an investigator.
When the plaintiff was arrested, the police officers at the police station established that
she was the investigator of the docket. She was then phoned by Sgt Sibuyi. She later
went to the police station and interviewed the plaintiff. She informed him that she was
placing him under arrest.
5.4 The circumstances of the case are that there was a burglary and the burglar
was captured on video footage. The video footage was circulated and a former owner
of the plaintiff identified him as the person on the footage. The plaintiff was arrested at
a garage after the former owner saw him and alerted security guards. She also saw
the footage.
Second Defendant’s case
[6] Nomagugu Priscilla Ngoman e testified for the second defendant and her
evidence can be summarised as follows:
6.1 She has been employed as a control prosecutor since 2006. She is stationed
at white River.
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6.2 She screens new cases and decides on whether same should be enrolled or
not. These cases would be coming from the SAPS.
6.3 In January 2019, during the course of her employment, she received about two
dockets involving the plaintiff. She decided on the enrolment of the matter after reading
a witness’s statement in the docket (A1).
6.4 She gathered from the contents of the docket that the plaintiff was arrested for
having broken into a pub. He was linked through a video footage. She concluded that
there was a prima facie case and the matter should be enrolled. There was a case the
plaintiff should give answers to. She, however, did not see the footage.
6.5 It was discovered that he had a case whereon he was on bail. The matter herein
was postponed to the date whereon he would be appearing in court. He was kept in
custody as the matter became a Schedule 5. Legal A id later abandoned his bail
application.
6.6 The matter was postponed several times in the district court and investigations
were completed. The matter was then transferred to the Regional Court where it was
withdrawn.
6.7 The matter was withdrawn for lack of prospects of successful prosecution but
she does not agree therewith as she concluded that there was a prima facie case.
Issue
[7] The issues for determination are whether:
7.1 the plaintiff was lawfully arrested and detained in terms of s 40(1) (b) of the
Criminal Procedure Act (“CPA”;
7.2 the first defendant is liable to compensate the plaintiff for the entire period of
his detention following his unlawful arrest, including the period following his first
appearance in court, from 21 January 2019 to 16 October 2019; and
----
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7.3 the second defendant, acting in concert with the first defendant, maliciously
prosecuted the plaintiff.
Arrest
[8] It is trite that an arrest or detention is prima facie wrongful. S 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 l awful 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.
[9] Before a person could be arrested without a warrant, the jurisdictional facts
provided for in section 40 (1)(b) should be present.1
[10] 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.
6
(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
[11] 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.
[12] In casu, the Plaintiff was apprehended by security officers and taken to a police
station. Sergeant Mkhabela, however, stated in her testimony that after she was called
to the police station, she interviewed the Plaintiff and informed him that she was putting
him under arrest. In my view, this is where the formal arrest for the purposes herein
should be held to have been effected. No indication is given as to whether she was
satisfied that the jurisdictional facts laid down in section 40(1)(b) had been established
before effecting her arrest.
[13] Even if this court were to accept that the apprehension was effected by the
security officers, Sergeant Mkhabela does not state in her evidence whether she
verified the jurisdictional facts as to whether the arrest, if found to have been effected
by the security officers, warranted such arrest. From the evidence of the police officer,
an impression is created that the police officer had the discretion to detain the plaintiff
based on the arrest by the security officers or to effect a formal police arrest. From her
evidence, it is apparent that she chose to interview the plaintiff and effect a formal
arrest. Apparently, she did not see the complainant before her interview with the
plaintiff and no identification parade was held by the investigating officer for the
4 Loubser above n 15 at 27.
5 R v Moloy 1953 (3) SA 659 (T) at 662E
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identification of the plaintiff. No jurisdictional facts are laid for her formal arrest. Without
a warrant, the arrest remains prima facie unlawful. In my view, it would be a sad day
for our judicial system if a citizen’s arrest could be deemed to be the point of reference
for purposes of litigations of this nature. The course taken by Sergeant Mkhabela is
comprehensible in matters of this nature. The formal arrest is eventually laid on the
doorsteps of the police.
[14] I find that the formal arrest effected by, in her own words, Sergeant Mkhabela,
was unlawful
Detention
[15] 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
person, which includes the right not to be deprived of freedom arbitrarily or without just
cause.
[16] 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.
[17] The aforesaid means that even where the arrest is lawfu l, the police officer
should make an enquiry on whether the arrestee should be detained or not.
6 Zealand above, at paragraph 24
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[18] In casu, it is stated by the first defendant that the arrest was effected by the
security officers . This does not assist the first defendant as no evidence was led
rebutting the prima facie assumption that an arrest without a warrant is unlawful. This
would have led to the police officer detaining an arrestee who was unlawfully arrested.
[19] Even if it were to be the case that the plaintiff was , whether lawfully or
unlawfully, arrested by security officers , the police officer should have, before
detaining the plaintiff, applied her mind to the arrestee's detention. It is not stated as
to why the police officer deemed detention necessary. Even where the arrest is lawful,
the police officer is still expected to apply their mind to the detainee’s detention.
[20] In the absence of any explanation as to why it was necessary to detain the
plaintiff, the detention is found to have been unlawful.
Detention post-court appearance
[21] 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
considerations. This may include a consideration of whether the post-appearance
detention was lawful.
[22] 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
7 De Klerk v Minister of Police [2019] ZACC 32
8 Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G:
9
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 an unaffordable bail or denied bail and
remanded the plaintiff in custody the conduct of the police would be found to have
occasioned the further detention.
[23] The Court in mCubed International (Pty) Ltd9 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
[24] 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
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.
12 Bryan James De Klerk v Minister of Police [2019] ZACC 32 at paragraph 81
10
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.”
[25] A remand of a case after first appearance is a natural concomitant where bail
is not fixed or, if fixed, an accused fails to post bail. For a police officer, Sindi Mkhabela,
of more than ten years ’ experience, this is a known fact. She should have foreseen
the eventual further detention of the plaintiff in the event that bail is not posted.
[26] The police set the wheel in motion by effecting the formal arrest.. 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 should , therefore, be held liable for detention pre -
court appearance and detention post-court appearance.
Malicious prosecution
[27] Malicious prosecution consists in the wrongful and intentional assault on the
dignity of a person comprehending also his or her good name and privacy13.
[28] To succeed with a malicious prosecution claim, the plaintiff must allege and
prove that-
13 Heyns v Venter 2004 (3) SA 200 (T) 208B
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28.1 the defendants set the law in motion (instituted or instigated the proceedings);
28.2 the defendant acted without reasonable and probable cause;
28.3 the defendant acted with malice (or animo iniuriarum); and
28.4 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.
[29] 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”.
[30] The police official gave a fair and honest statement of the relevant facts to the
prosecutor, leaving it to him to decide whether to prosecute or not.
[31] 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 Sadety 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
[32] 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 guil ty. 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
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[33] It is the evidence of Nomagugu Priscilla Ngomane that she genuinely believed
that there was a reasonable and probable cause.
[34] I am not satisfied that the plaintiff succeeded in proving malice or animus
iniuriandi, or that the prosecution did not genuinely believe that there was reasonable
and probable cause to prosecute.
[35] Consequently, the claim for malicious prosecution should fail.
Non-service
[36] In dismissing the special plea of non-service I considered two decisions by the
Supreme Court of Appeal18. In the Miya case, where process was served on state
attorney but not on head of department, it was held that the fact that summons was
not served within the prescripts of provisions was on the facts not fatal. In casu, the
summons was served on the state attorney. In Molokwane it was held that failure to
serve on state attorney was not fatal.
Quantum
[37] Past awards can be used for guiding the Court in determining what a fair and
reasonable compensation is.
37.1 It was held in Minister of Safety and Security v Seymour19 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
18 Minister of Police and others v Samuel Molokwane (730/2021) [2022] ZASCA 111 (15 July 2022]; Minister of
Police v Miya (1250/2022) [2024] ZASCA 71 (6 May 2024)
19 2006(6) SA 320(SCA) para 17
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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”.
37.2 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).
37.3 In Sibuta and Another v Minister of Police and Another20 the Plaintiff therein
was awarded R470 000 for unlawful arrest and detention, he having been detained
for fifteen (15) days.
37.4 In Oriyomi v Minister of Police21 the Plaintiff therein was awarded R120 000,
he having been in detention for about four days
37.5 In De Klerk v Minister of Police22 the plaintiff was granted R30 000 for having
spent almost an hour in detention.
[38] 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.
[39] 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.
[40] In my view, a fair and appropriate award of damages for the appellant’s
unlawful arrest is R100 000; R150 000 for the pre-court appearance detention and
20 (3709/2016; 3710/2016[2020] ZAECGHC 6(15 January 2020)
21 (14132/13) [2020] ZAGPPHC 224 (6 April 2020)
22 (329/17) [2018] ZASCA 45 (28 March 2018)
R600 000 for the post-court appearance detention from 22 January 2019 to 16
October 2019.
Conclusion
[41] Consequently, the follow ing order is made:
1. The First De fendant is ordered to pay to the Plaintiff a total amount of
R100 000-00 for unlawful arrest;
2. The First Defendant is ordered to pay the plaintiff a total amount of
R150 000 for pre-court appearance detention;
3. The first defendant is ordered to pay to the plaintiff an amoun t of R600
000-00 for the post-court appearance detention.
4. The first Defendant is ordered to pay costs of suit, including costs of
Counse l, on a party and party Scale B.
SHAIAJ
This judgment w as handed dow n electronically by circulation to the parties'
representatives by ema il. The date and time for hand-dow n is deemed to be 11 hOO on
06 August 2025
Appearances:
FOR TH E PLAINTIFF: SHILA ATTORNEYS
E-MA IL: bhila@btattorneys.co.za
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16
FOR THE DEFENDANT: THE STATE ATTORNEY-MBOMBELA
EMAIL: Armasekoameng@justice.gov.za
DATE OF HEARING: : 24 March 2025
DATE OF JUDGMENT : 06 August 2025