IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
(1) REPOR TAB LE: NO
(2) OF INT ER EST TO OTHER JUDGES: NO
(3) REVISED
03/09/2025
DATE SIGNATURE
SIBUSISO SIMONE MALAZA
INNOCENT THULANI MDLULI
And
THE MINISTER OF POLICE
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT
SHAIAJ
CASE NUMBER A20/24
1 ST APPELLANT
2N D APPELLANT
18T RESPONDENT
2N D RESPONDENT
Introduction
[1] This is an appeal against the whole of the judgment and order of Judge
Ratshibvumo, on 1 November 2023.
[2] Leave to appeal to the full court was granted on 13 February 2024.
[3] The appeal is opposed by the respondent s, who were the defendant in the trial
court.
Brief litigation history
[4] The appellants had warrants of arrest issued against them . The warrants were
issued as a result of statements filed by v arious complainants, including a sworn
statement by Zinhle Phepile Bhembe (“Bhembe”)
[5] In her statement, Bhembe implicated both appellants.
[6] After the arrest of the appellants, a bail application was made for the appellants
and same was opposed by the respondents. For this bail opposition, the second
respondent made use of counsel who were not the same counsel who represented the
second respondent in the criminal proceedings.
[7] Adv Thenga, the prosecutor in charge of the bail testified that bail was refused.
[8] Adv Sihlangu testified that t he first appellant was prosecuted and convicted of
kidnapping. He was, however, acquitted on others. However, the first appellants testified
that he was acquitted. The acquittal or conviction of the appellants is immaterial in making
findings relating to the issues herein.
[9] The investigating officer in the matter testified that he is the one at whose instance
the J50 warrant was issued. He was of the view that the appellants had committed the
offences they were charged with, including kidnapping. He further stated that he had
made a mistake when he preferred the murder charge against the appellants at the time
of applying for the warrants. This was so as f rom Bhembe’s statement , there was no
evidence that the appellants were there when assault and murder were committed.
[10] Johannes Lusenga is the prosecutor who applied for the warrant. He stated in his
testimony that the prosecution was of the view that they had a strong case. He hoped to
convict the appellants on common purpose.
Issue
[11] The issue for determination is whether the trial court misdirected itself in finding as
it did.
The law
[12] In an appeal of this nature, the court should consider the available testimony and
evidence produced at court during the trial.
[13] This court is barred from setting aside the decision of the trial court where it
exercised its discretion, merely because this court would on the facts before the trial court
have come to a different conclusion 1. It may interfere only when it appears that the trial
court failed to exercise its discretion judicially, or that it had been influenced by wrong
principles or misdirection on the facts, or that it had reached a decision which in the result
could not reasonably have been made by a court properly directing itself to all the relevant
facts and principles.2
Arrest
[14] It is trite that an arrest or detention is prima facie wrongful. Section 43 of the
Criminal Procedure Act authorizes a magistrate or justice to issue a warrant for the arrest
1 Naylor v Jansen 2007 (1) SA 16 (SCA) at 23G-24B; MTN Service Provider (Pty) Ltd v Afro Call
(Pty) Ltd 2007 (6) SA 620 SCA at 624E-H.
2 National Coalition for Gay &Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at
14B-D.
of any person upon the written application of an attorney-general, a public prosecutor or
a commissioned officer of the police. It was held in Minister of Safety and Securit y v
Sekhoto and another3 that an officer who is in possession of a warrant of arrest is not
obliged to effect an arrest but has a discretion as to whether to effect the arrest or not.
[15] 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;4
(c) the deprivation of liberty must be wrongful, with the onus falling on the
defendant to show why it is not;5 and
(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.6
[16] It should be stated, against all the aforesaid, that t he eventual conviction or
acquittal of a person previously arrested is not of itself proof that the arrest was lawful or
unlawful.7
3 2011 (1) SACR 315 (SCA).
4 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154H-J.
5 Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3;
2008(2) SACR 1 (CC), at paras 24-5.
6 Loubser above n 15 at 27.
7 R v Moloy 1953 (3) SA 659 (T) at 662E.
[17] In casu, the appellants were arrested after a warrant of arrest was issued. The
police officer was not obliged to arrest the appellants. The warrant of arrest was applied
for based on, inter alia, the sworn statement of Bhembe. The statement implicated the
appellants in, at least, kidnapping.
[18] In my view, from the aforesaid, one cannot fault the police officer for concluding
that the two appellants were involved in the commission of a crime, the least being
kidnapping. I find that the police officer was justified in applying for the warrant and
subsequently arresting the appellants.
[19] consequently, I find that the trial judge was correct in finding that the arrest was
lawful.
Detention
[20] Detention is, in and by itself, unlawful. The onus rests on the detaining officer to
justify it.8 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.
[21] 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.
8 Zealand above, at paragraph 24.
[22] 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.
[23] I have, in casu, already found that the arrest was lawful. The facts are that the
appellants were linked to, at least kidnapping . The police officer cannot be faulted for
having decided to detain the appellants for their release to be determined by a court. I
cannot find that this discretion was not properly exercised.
[24] I, therefore, find that the trial judge did not misdirect himself in finding that the
detention was not unlawful.
Detention post-court appearance
[25] It was held in the De Klerk9 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.
[26] It was held further 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.10 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 appellants would
not have been detained, then it would be the conduct of the police that factually caused
9 De Klerk v Minister of Police [2019] ZACC 32.
10 Minister of Police v Skosana 1977 (1) SA 31 (A); [1977] 1 All SA 219 (A) at 34F-G.
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.
[27] In casu, in light of what has been stated above, I am of the view that based on
the seriousness of the offences the appellants could possibly be charged with, a further
detention was unavoidable should bail not be fixed by the court. Although further
detention was occasioned by the police, it could not be held to have been occasioned
by any wrongdoing on the part of either the police or the prosecution.
[28] In my view, the trial judge was not misdirected in holding, either expressly or
impliedly, that this further detention was not unlawful.
Malicious prosecution
[29] 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
[30] To succeed with a malicious prosecution claim, the plaintiff must allege and prove
that-
30.1 the defendants set the law in motion (instituted or instigated the proceedings);
30.2 the defendant acted without reasonable and probable cause;
30.3 the defendant acted with malice (or animo iniuriarum); and
11 Heyns v Venter 2004 (3) SA 200 (T) 208B.
30.4 that the prosecution failed. In this instance, the plaintiff bears the onus of proof to
establish each, as alluded. 12 It is the evidence of the second defendant’s witness that
plaintiff’s case was struck off the roll due to lack of evidence.
[31] In Waterhouse v Shields13 Gardiner J remarked:
“The first matter the plaintiff has to prove is that the defendant was actively instrumental
in the prosecution of the charge”.
[32] The statement by Bhembe warranted a prosecution of the appellants as they were
implicated in, at least, kidnapping. For prosecution to ensue 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.
[33] In Beckenstrater v Rotter and Theunissen 14 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 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.”
12 Minister of Safety and Security v Lincoln 2020 (2) SACR 262 (SCA).
13 1924 (CPD) 155 AT 160.
14 1955 (1) SA 136 (A) 136A-B.
Animus iniuriandi
[34] 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 Moleko15 remarked:
“[63] In this regard animus iniuriandi (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.”
[35] It is the evidence of Adv Sihlangu, the prosecutor in the criminal trial, that Bhembe
linked the first appellant to the commission of the offence 16 and the first appellant was
consequently found guilty on kidnapping and acquitted on others. Adv Sihlangu does not
know the outcome of the prosecution of the second appellant. Both appellants testified
that they were acquitted of all charges. The claim does not, however, depend on the
successful pro secution or not of the appellants. I find no malice on the part of the
prosecution.
15 [2008] 3 All SA 47 (SCA) at 63.
16 Bundle 1, page 87, line 17 – page 88, line 23.
[36] In light of the aforesaid, I cannot find that the trial judge w as m isdirected in finding
that the appellants failed to establish that there w as malicious prosecution. Consequently,
the claim for malicious prosecution should fail.
Conclusion
[37] In the premise, the follow ing order:
1. The appeal in respect of both appellants is dismissed.
2. The appellants are ordered to pay costs of this appeal, including costs of
Counsel, on a party and party Scale C .
SHAIAJ
I agree and it is so ordered.
LANGAJ
I agree
- ·
TSHETLO AJ
DATE OF HEARING: : 14 MARCH 2025
DATE OF JUDGMENT : 03 September 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email and release to SAFLII. The date and time for hand -down is
deemed to be 11h00 on 03 September 2025.
THE NAMES, TELEPHONE NUMBERS AND EMAIL ADDRESSES OF THE LEGAL
REPRESENTATIVES OF THE PARTIES
FOR THE APPELLANT: NTULI & MANANA ATTORNEYS
15 PAUL KRUGER STREET
MBOMBELA
TEL: 013 880 1622
nmattorneysinc@gmail.com
FOR THE RESPONDENT: THE STATE ATTORNEY-MBOMBELA
C/O SLABBER ATTORNEYS INC
013 752 5419
Email address: mp@fslaw.co.za