SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 5011/2018
In the matter between:
COLLEN FODO Plaintiff
and
MINISTER OF POLICE 1ST Defendant
NATIONAL COMMISSIONER OF POLICE 2nd Defendant
NATIONAL PROSECITING AUTHORITY 3RD Defendant
JUDGMENT
ZONO AJ:
Introduction
[1] The plaintiff claims damages from the defendants. Plaintiff’ s claim is two
pronged. The first claim is against the first and second defendant for
damages arising out of the alleged unlawful or malicious arrest and detention
which took place on the 12 th October 2010. The second claim is for malicious
prosecution against the third defendant which allegedly occurred in the period
between the 15 th October 2010 when he first appeared in court to 5 th July
2017 when he was found not guilty by the Regional Court. The plaintiff avers
that the Prosecuting Authority subjecte d him to prosecution when it clearly
had no prima facie against him.
[2] The matter is fully defended by the defendants; in so doing they delivered
their respective pleas. The first and second defendant place reliance on the
provisions of section 40(1) (b) of Criminal Procedure Act 51 of 1977 in that the
members of South African Public Service reasonably suspected that the
plaintiff committed a schedule (1) one offence. The third defendant disputes
that its members acted with malice and that they had no prima facie case
against the plaintiff. The third defendant avers further that there was sufficient
evidence in the docket justifying prosecution of the plaintiff.
[3] At the commencement of the trial parties confirmed their agreement during
the pre-trial conference that there shall be no separation of issues. The issue
of liability was agreed to be dealt with together with the issue of quantum. The
matter proceeded on the basis that both issues of liability and quantum should
be dealt with together. Plaintiff bears a duty to begin.
Evidence
[4] The plaintiff testified that he is a small scale farmer, farming inter alia, with
pigs. On the 10th October 2010 the plaintiff received a call asking him to arrive
at his pigsty as it is about fifty (50) meters from his home. He took his stick
and firearm with him. On his way to his pigsty the plaintiff heard two sounds of
and firearm with him. On his way to his pigsty the plaintiff heard two sounds of
a gunshot and some noise of the people saying catch the thieves. On his
arrival the plaintiff noticed a bakkie with two pigs loaded at the back thereof.
He further observed that the members of community were assaulting a group
of six (6) youngmen with sticks and schamboks. He knew tw o of the six
youngmen as they were sons of the local sub -headman whom he knows very
well.
[5] Community members advised the plaintiff that the youngmen are the same
thieves they had always been advising him about as they were apparently
assaulting them. The plaintiff intervened and when the situation calmed down
he called the sub -headman to immediately come to the scene and thereafter
called the police and they quickly arrived and he explained what happened.
Two policeman arrived, one of whom was Xuza and they suggested that the
two pigs to be taken back to the pigsty.
[6] On the 11 th October 2010 the plaintiff went to the police station to check the
progress of his case where he was advised that Mr Khawule is handling his
case and Khawule would advise him of the progress. To the plaintiff’s surprise
the police officers arrived at his home to arrest him on the 12 th October 2010
at 09:50 for the alleged attempted murder, assault where bush knife and
schamboks were used. They requested plaintiff’s firearm a nd licence. The
names of the police officers were Vuyokazi Madalane and Madolo. They then
instructed the plaintiff to board the police van to Ngangelizwe Police Station
where they ultimately detained the plaintiff. The plaintiff appeared in court on
the 15th October 2010 when he was granted bail. The plaintiff seeks to assail
his detention on the basis that he is the one who was a victim of theft of his
pigs and he had been reporting those incidents to the police.
[7] In addition to the attempted murder the plaintiff testified that he was
prosecuted for robbery with aggravating circumstnces of car keys and
phones. He holds the view that his prosecution was malicious. He says so
because there was no evidence in the dock et that showed that he committed
an offence of robbery. The plaintiff contended that he was ultimately
acquitted. The plaintiff testified that at the scene, the phones and car keys
acquitted. The plaintiff testified that at the scene, the phones and car keys
were given to the sub-headman by his sons. The plaintiff categorically testified
that he is not impugning or assailing his prosecution in respect of attempted
murder, but he takes an issue with his prosecution only in respect of robbery.
After plaintiff’s evidence the plaintiff closed its case, paving way for the
defendants.
[8] Vuyokazi Madalane (Madalane) was called to give evidence on behalf of the
first and second defendants. She was employed for 27 years as a Police
Officer. On the 11 th October 2010, when she reported for duty she was a
Warrant Officer. She received a docket and attended at the scene. On arrival
at the scene Ms Madalane noticed a white bakkie parked outside a certain
homestead with a bullet hole on the right hand side. She observed some
blood on the ground. She then visited the victims at the hospital. Her evidence
revealed that she was not alone, she was in the company of other police
officers. Some statements were apparently taken from the victims. However,
she categorically stated that she took a statement from one victim, Thabile
Sibangela.
[9] On the 1 2th October 2010, She, together with other police officers went to
plaintiff’s home. The plaintiff initially denied them access into his home, but
they ultimately entered. After introductions, Ms Madalane advised the plaintiff
that he was under arrest for six (6) counts of attempted murder and robbery
that took place. On 10th October 2010. The plaintiff was arrested and detained
at Ngangelizwe Police Station. She testified that witness statements clearly
established that the plaintiff hacked the victims with a bush -knife and the
victims were seriously injured.
[10] During cross-examination Ms Madalane stated that she arrested the plaintiff
on charges of attempted murder and robbery. At the time of the arrest, she
had two statements by the police officers and a witness that placed the
plaintiff at the scene. She took the statem ent from the witness. The witness
from whom the statement was taken knows the plaintiff as they are from the
same area. Ms Madalane could glean from the statements that the plaintiff
seriously injured and robbed the victims of the car keys, phones and a wa tch.
seriously injured and robbed the victims of the car keys, phones and a wa tch.
The first and second defendant closed its case after this witness (Madalane).
[11] The third defendant opened its case and called the evidence of the public
prosecutor, Mr Kenneth Kawunda Zongo. He testified that he had been a
Prosecutor for 22 years and is now based in the Mthatha Regional Court. He
was a Prosecutor in the plaintiff’s case at the Regional Court. Upon receipt of
the docket, Mr Zongo observed that there were five (5) statements and a
completed J88 (with its accompanying affidavit) in t he docket. He perused the
docket and came to a conclusion that the plaintiff had a case to answer.
Everything was in order and the docket qualified to be in the Regional Court.
He also observed that there was a warning statement in which the plaintiff
expressed that he would make his statement in court. He thereafter consulted
with all the witnesses including the one who personally knows the plaintiff,
who stated that they were in the motor vehicle drinking liquor when plaintiff
came and shot him on the foo t and he ran to hide under the motor vehicle.
The car keys, cell phone and an amount of R1500.00 was taken.
[12] Mr Zongo denied that the prosecution was malicious and that he acted without
reasonable and probable cause when instituting the criminal proc eedings. A
prima facie case had been established in the docket as the victims were
seriously injured and one witness statement implicated the plaintiff in the
charge of robbery. This captures the essence of Mr Zongo’s evidence.
Unlawful Arrest and Detention
[13] During the trial of this matter Mr Sintwa, Counsel for the Plaintiff wisely
conceded that the second defendant, the National Commissioner, SAPS was
misjoined as he is not an executive authority 1. Only the executive authority
must be cited and joined as a nominal defendant in the case of litigation
against an organ of state or Department. He further submitted that the plaintiff
seeks no re lief against the second defendant. Therefore, no order should be
granted against the second defendant.
granted against the second defendant.
1 Section 2(2) of State Liability Act 20 of 1957 as amended.
[14] It is trite that the onus vests on a defendant to justify an arrest 2. In Hurley3
Rabie CJ Observed thus:
“An arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems 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.”
In this case it is the first defendant who must prove that the arrest of the
plaintiff was justified in law. Every arrest is prima facie unlawful4.
[15] Section 12(1) of the Constitution provides thus:
“Everyone has the right of freedom and security of the person, which
includes the right-
(a) not to be deprived of freedom arbitrarily and without just cause,
(b )not to be detained without trial.”
[16] An arrest of an individual constitutes an interference with the individual’s right
to freedom5. An individual’s right to fr eedom can be limited. It can be limited if
the limitation is strictly in terms of the law of general application6
[17] In an attempt to discharge that onus the first defendant relies on the
provisions of section 40(1)( b) of the Criminal Procedure Act 51 of 1977 as
amended which is worded thus:
“40(a) A peace officer may without warrant of arrest any person-
(a)…..
2 Minister of Safety and Security v Sekhoto 2011(1) SACR 315 SCA; 2011(5) SA 367 SCA Para 7.
3 Minister of law and order v Hurley 1986 (3) SA 568 (A) at 589 E-F.
4 Zealand v Minister of justice and Constitutional Development 2008(2) SACR (1) (CC) Para 82.
5 Mbalela v Minister of Police (1086/2019) [2025] ZAECMHC 8 (8 February 2025) Para 39-40
6 Section 36(1) of the Constitution.
(b)whom he reasonably suspects of having committed an offence
referred to in schedule1, other than the offence of escaping from lawful
custody.”
[18] As was held in Duncan7 and quoted wit h approval in Sekhoto8 the
jurisdictional facts for section 40(1)(b) defence are (i) the arrestor must be a
peace officer; (ii) the suspiscion must be that the suspect (the arrestee)
committed an offence referred to in schedule 1; and (iv) the suspiscion must
rest on reasonable grounds. There seems to be no dispute about the fact that
Ms Madalane, the arresting officer was a peace officer and that she entertains
a suspicion that an offence was committed. Both the attempted murder and
robbery are schedule 1 offences. I may mention, in parenthesis for what I will
discuss hereinafter that attempted murder is also a schedule 5 offence whilst
an offence of robbery with aggravating circumstances is also a schedule 6
offence.
[19] The bone of contention is whether the arresting officer entertained a
reasonable suspicion or the one that is based on reasonable grounds.
Reasonable grounds are interpreted objectively and must be of such a nature
that a reasonable person would have a sus picion9. The arrester’s grounds
must be reasonable from an objective point of view. The section requires
suspicion and not certainty10.
[20] It is a pposite to crisply deal with the purpose of arrest. The purpose of arrest
is to bring the suspect to or before court or to trial or justice 11. Once the
arresting officer harbours a suspicion that is based on reasonable grounds, he
or she is enjoined to bring the suspect to justice. I set out to deal with what
served before the arresting officer b efore unleashing her power to arrest the
plaintiff.
7 Duncan v Minister of law and order 1986(2) SA 805 (A) at 818 G-H
8 Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 SCA; 2011 (5) SA 367 (SCA) Para
6
9 R v Van Heerden 1958 (3) SA 150 (T)
10 Mabona v Minister of Law and order 1988 (2) SA 654 (SEC) at 659 E-H
10 Mabona v Minister of Law and order 1988 (2) SA 654 (SEC) at 659 E-H
11 Tsose v Minister of justice 1951 (3) SA 10 (A); Sekhoto (Supra) Para 42 and 44; Mbalela v
Minister of Police (1086/2019) [2025] ZAECHC 8 (8 February 2025) Para 40
[21] It is not in dispute that when the arresting officer, Ms Madalane received the
police docket there were already two statements therein. The docket was
received by the arresting officer on 11th October 2010. The first statement was
deposed to by Sergeant Nosilela. The relevant parts of this statement read as
follows:
“On the 10-10-2011 at about 22:00 I was on duty doing the night shift.
As I was patrolling at Ngangelizwe area together with Cons table Xuza
we received a call from the radio control that there were six males who
were arrested at Bongweni Location while they were stealing the pigs
in the pigsty. I and Constable Xuza rushed to the scene. On our arrival
we met the headman of Bongweni M r Sibangela who took us to the
scene. On the scene we found a group of people and there were six
SA males who were collected together. They were severely beaten.
Some had injuries on the head. When I asked the victims what had
happened they didn’t talk bec ause of their injuries. At the scene there
was also a Toyota Bakkie with registration No B[...]. Inside the Bakkie
there were two piglets. I asked from community members what had
happened. One SA male by the name of Mr Fodo told me that he is the
owner of the pigs which were being loaded by the victims. The brother
said that he heard pigs growth. When he looked he saw some SA
males loading the pigs to the van. He called the community members
and they came and they assaulted victims and arrested them. After that
they called the police. The victims were assaulted with the bushknife
and stick. We called the ambulance and victims were taken to Nelson
Mandela Hospital and the above mentioned Toyota Bakkie was taken
by the headman for safe keeping” (sic). I assume that reference in the
statement to 10-10-2011 is reference to 10-10-2010.
[22] It is clearly discernible from this statement that the plaintiff was at the scene
when the victims were being severely beaten. Infact it is recorded that the
when the victims were being severely beaten. Infact it is recorded that the
plaintiff called the community members and the victims were beaten. What
leaves one to wonder is the method or means employed by the plaintiff to
keep the victims in his control until the arrival of community members. The
reasons for the victims not to escape when they wer e apprehended by the
plaintiff is not unkown. What we know from plaintiff testimony is that he had in
his possession a stick and a firearm. However, a group of six (6) youngmen
were kept in control of and by one man until the arrival of community
members.
[23] The second statement that was in the docket when it was brought to the
arresting officer on 11 th October 2010 was that of Constable Xuza which in
relevant parts reads as follows:
“On Sunday 2010-10-10 at about 22:00 I was on duty doing night shift.
We received a call from control 2 (two) that at Bongweni location,
Zimbane A/A there are six (06) b/males that were arrested by the
community members with stolen properties and they were beaten by
the community. I and Sgt Nosilela we responded to the ca ll of control
by going there at Bongweni Location near Eskom. On our arrival we
met with the headman of Bongweni, Mr Sibangela who took us to the
scene of crime.
5.
We met so many community members with six (06) B/males they were
very injured all ove r bodies and heads. We asked to the suspects
what’s happening. They didn’t answer, but the headman Sibangela
said they were caught by the community with stolen pigs and the
piglets (two), these suspects were driving a motor vehicle reg B[...]
Toyota Bakkie with cabbage and two piglets inside.
6.
These suspects were beaten by the bush -knives and firearms were
used to assault them. One of them was shot at the stomach and the
others got open wounds on head and arms seemingly the bush -knife
was used.
7.
They were taken to the Nelson Mandela hospital by EMS ambulance
and M/V was taken by the headman. The names of victims (i) Mandisi
Ntshovulana age 32 years (ii) Thandile Sibangela 29 years (iii) Buntu
Tabashe 50 years (iv) Khaya Sibangela 32 years (v) Odwa Khalimashe
27 years (vi) Akhona Sibeko 19 years. All were admitted in Nelson
Mandela Hospital.”
[24] On the same date of 11 th October 2010 the arresting officer together with
other police officers visited the victims mentioned in the statement at the
hospital. The arresting officer consulted with Thabile Sibangela and a
statement was thereafter taken and the relevant parts thereof read as follows:
“ 6
After ten minutes after arrival I heard big firearm shot and it was
coming from the directing of the tip. When I was still shocked and a
second shot again was shot, I jumped over the vehicle and others ran
away because I not iced that the sound of the firearm was coming
closer.
7.
Two men arrived, it was Mr Fodo and the other man, Gadi. They pulled
me from the vehicle and they were assaulting me with a stick and they
instructed us to lie down and we did, some of them ra n away i.e
Mandisi ran away but he was already shot whilst he was inside the car.
Mr Fodo said why we are stealing his pigs. I could not answer him.
They assaulted us with bush knife, sticks and shot us with firearm. I
sustained multiple injuries. The peop le I know they assaulted us are
only these two because there was a time when I got unconscious. I do
not know other people who arrived and assaulted us because it was
dark and it was hard to identify a person. I know and identified Mr Fodo
and Gadi because they are the people I am already know as the
people who stay next to my residential place. They stopped assaulting
us when they heard a voice of my father. My father shouted by saying
madoda ndim ngu Ndaba and they stopped assaulting us. My father
suggested that an ambulance to be called because he saw us lying
down. I was having severe pains. Mr Fodo chopped me and broke. I
was then broken on my left leg. I sustained injuries on my left side of
the heard and injuries all over the body. That is all I can say.” (sic)
[25] All three statements complemented each other. The consultation with the
victim and the statement taken from Thabile connected all the dots and filled
all the gaps that were left in the previous statements. In addition to the
statements and consultation referred to above, the arresting officer and other
police officers approached the plaintiff on the 12 th October 2010. Crucial
events of the 12th October 2010 are hereinafter dealt with.
[26] Besides the facts that the plaintiff demonstrat ed a belligerent attitude towards
the police officers by refusing to cooperate and open his yard gate, when the
gate was ultimately opened he did not seek to explain the events of the 10 th
October 2010 with a view to exonerate himself. It is clear from his testimony
that the arresting officer and other police officers explained the nature of the
charges he was facing, but nonetheless he did not seek to explain his side of
the story. The plaintiff had all the time to explain himself to the police officers
as it appears that he verbally interacted with them by inter alia asking them for
the reason they were arresting him. Answering the question and cooperating
with the plaintiff, the arresting officer and other police officers explained not
only the nature of the offence the plaintiff was facing, but also explained the
nature of the weapon used when that offence was used. That is clear from the
plaintiff’s evidence in chief. The attitude of not wanting to explain himself to
the police officers persisted and tra nscended to the time when he signed his
warning statement where it is recorded: “ Decline to make a statement he will
make it before court.” (sic) The warning statement is dated 13th October 2010.
[27] Mindful of the statements in the docket and the intera ctions between the
[27] Mindful of the statements in the docket and the intera ctions between the
plaintiff and the police officers on 12 th October 2010, I set out to deal with Mr
Sintwa’s main submission. Mr Sintwa, Counsel for the plaintiff strongly
submitted that plaintiff’s arrest was effected without verification of the
information in the docket. When requested to explain the practical meaning of
the word, especially in the context of this case, he was unable to. In law
context is everything 12. When an authority was requested for proposition that
an information in the docket must be verified before an arrest can be effected,
he sought to rely on the case of Mabona13referred to above. In his submission
he sought to conflate the meaning of suspicion and certainty. I disagree t hat
Mabona is an authority for proposition that there must be certainty that an
offence was indeed committed by the suspect.
[28] Jones J14 observed as follows:
“………..It seems to me that in evaluating his information a reasonable
man would bear in mind that the section authorises drastic police
action. It authorises an arrest on the strength of a suspicion and
without the need to swear out a warrant, i.e. something wh ich
otherwise would be an invasion of private rights and personal liberty.
The reasonable man will therefore analyse and assess the quality of
the information at his disposal critically, and he will not accept it lightly
or without checking it where it can be checked. It is only after an
examination of this kind that he will allow himself to entertain a
suspicion which will justify an arrest. This is not to say that the
information at his disposal must be of sufficiently high quality and
cogency to engender in him a conviction that the suspect is in fact
guilty. The section requires suspicion but not certainty. However, the
suspicion must be based upon solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.”
[29] Although the statement of sergeant Nosilela would be sufficient to arrest on
the basis of a doctrine of common purpose as it is plain from the interaction
between the plaintiff and the police officers on the 10 th October 2010 that the
plaintiff was the first one to catch the victims and thereafter called members of
the community. Members of the community came at his instance and arrived
when the victims were in plaintiff’s hands and the victims subsequently
when the victims were in plaintiff’s hands and the victims subsequently
12 Minister of Home Affairs and others v Scalabrini Centre Cape Town and Others 2013 (6) SA
421 (SCA); 2013 (4) ALL SA 571 (SCA) Para 89
13 Mabona and another v Minister of law and order and others 1988 (2) SA 654 (SE) at 659 E-H
14 Mabona (Supra)
sustained serious injuries. The arresting officer and ot her police officers
continued with further investigations which included consultations and taking
of further statements. It is clear from the discovered documents which Mr
Sintwa was using in this trial that, some other statements were taken from
other victims on the 11th October 2010, which attest to the same events of the
10th October 2010. This revelation gives more expression to the arresting
officer’s evidence that on the 11 th October 2010 she visited the victims at the
hospital with other police officers who might have taken statements from other
victims as she was taking statement from Thabile.
[30] I am satisfied that the kind of information that was in the docket called for the
plaintiff to be brought to court. It is crucial and opportune to deal w ith the
manner in which a suspect should be brought to court if he is facing the kind
of charges the plaintiff was facing. It is clearly established that the power to
arrest may be exercised only for the purpose of bringing the suspect to
justice15. Once the suspect is brought to court it is the role of the court
whether to authorise his detention or release. Whilst attempted murder is a
schedule 1 offenc e, it is also a schedule 5 offence. This is the charge the
plaintiff was facing. In what follows I refer to the provisions of section
60(11)(b) of the CPA.
[31] Section 60 (11) provides that:
“(11) Notwithstanding any provision of this Act, where an acc used is
charged with an offence-
(a) ………….
(b) referred to in Schedule 5, but not in Schedule 6, the
court shall order that the accused be detained in custody
until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies
15 Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA); 2011 (5) 367 Para 42 and
44
the court that the interests of justice permit his or her
release”.
[32] This section proceeds from a poin t of view that the release of a suspect
facing a schedule 5 offence is granted only by the court upon representations
having been made to the satisfaction of the court. The default position is that
a suspect charged with schedule 5 offence must be detained . The detention
of the suspect is determinable by the court. By necessary implications
members of the SAPS seized with a matter where the suspect is charged
with a schedule 5 offence are directed to arrest and detain the suspect until
such time that he/she presents before court evidence that shows that interests
of justice permit his or he is release on bail.
[33] It seems to me that the arresting officer is not empowered by law to release
or to save the suspect charged with schedule 5 offence from dete ntion
otherwise than in terms of the court order. I therefore cannot find that the
plaintiff under the circumstances of this case was arrested and detained
unlawfully.
[34] An arresting officer effecting an arrest on the suspect exercises public power.
The doctrine of legality which requires that power should have a source in
law, is applicable whenever public power is exercised. Public power can be
validly exercised only if it is clearly sourced in law 16. Arresting officer’s power
to arrest and detain the suspect in circumstances like the present does not
only arise from section 40(1)(b) of the CPA, but also in section 60(11(b) of the
same Act. The evidence before me clearly demonstrates that section
60(11)(b) of CPA which, by necessary implications authorises the detention of
the suspect until he or she is dealt with in terms of the law applies17.
16 AAA Investments (Pty) Ltd v Micro Finance Regulato ry Council and Another 2007 (1) SA 343
(CC) Para 68.
17 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4) SA 490 (CC); 2004 (7)
BCLR 687 (CC) (12 MARCH 2004) Para 27.
[35] In the circumstances, I need not deal with the charge of robbery with
aggravating circumstances, which is also a schedule 6 offence as my
observation will not be any different from the one made above18.
[36] On the c onspectus of all the above I find no basis for finding that plaintiff’s
arrest and detention was unlawful. I therefore come to a conclusion that
plaintiff’s claim based on his arrest and detention cannot succeed and
therefore must fail.
Malicious Prosecutions
[37] It is necessary to firstly understand the offences in respect of which the
plaintiff was prosecuted. A distinction has to be drawn between the offences
in respect of which the suspect is charged and offences in respect of which
the suspect is prosecuted especial ly in the context of this case. I say this in
parenthesis for what I shall discuss herein below.
[38] The annexure to the charge sheet shows that in the Regional Court: Eastern
Cape Division, as the heading suggests, the plaintiff was charged with
robbery with aggravating circumstnces in that on 10 th October 2010, the
plaintiff did assault and take with force the motor vehicle keys, cell phone
nokia, a wallet and a sum of R1500.00 where firearm was used from Khaya
Sibangela; and that on the same date he did assault and with force take a
cell phone, Samsung B3410 Delph and a watch from Buntu Sibangela,
where a fire arm was used. It does not appear in the charge sheet or
anywhere in the record and evidence as to when those charges were
put/levelled a gainst the plaintiff. However, it is plain from the discovered
investigation diary that the matter was brought to the Regional Court on 05 th
April 2011.
[39] However, the summons in criminal case demonstrate that the plaintiff was
summoned to appear in c ourt in respect of the offence of attempted murder
18 Section 60(11)(a) of CPA.
on inter alia, 27th June 2011, 23 rd September 2011 and 10 th August 2016
etcetera. No mention of the charge or offence of robbery with aggravating
circumstances is made. A subpoena in criminal proceedings was apparently
prepared by the Public Prosecutor, Mr Zongo on 19 th April 2017 refers only to
the attempted murder and no mention is made of the robbery. Lastly, J14,
which is a certified extract from the criminal record book demonstrates that
the plaintiff was found not guilty of the attempted murder and was discharged.
Again, no mention is made of the offence of robbery.
[40] It is virtually not clear at what stage the plaintiff was caused to face the
charge of robbery, if he was at any stage. Even at th e time when the plaintiff
was arrested and detained on the 12 th October 2010, he appears to have
been warned of the charge of attempted murder only. A notice of rights in
terms of the Constitution (section 35 of Act No 108 of 1996) signed on the 12th
October 2010 at 19:20 shows that the plaintiff was facing a charge of
attempted murder and nothing is said of the robbery. This simple means that
from the beginning to the end the plaintiff was dealt with on the basis that he
was a suspect in the offence of attempted murder.
[41] This becomes important because the plaintiff as well as his Counsel
demonstrated that they seek to pursue the case of Malicious Prosecution only
in respect of robbery with aggravating circumstances. The plaintiff
categorically testified to that effect in the following words “ I have no problem
with the charge of attempted murder.” He is on record to indicate his pursuit
of his malicious prosecution claim only in respect of a charge of robbery with
aggravating circumstances. Plaintiff ‘s particulars of claim are plainly not a
model of clarity. Issues are not pleaded with clarity and precision 19 hence
there is no mention of the offences in respect of which the plaintiff was
there is no mention of the offences in respect of which the plaintiff was
prosecuted in the whole tenor of the particulars of claim. They are replete
with wordiness and unnecessary repetitions. It was for the first time in
evidence that the pl aintiff clarified that the claim for malicious prosecution is
only in respect of the offence of robbery with aggravating circumstances.
19 Rule 18(1) of Uniform Rules of Court
[42] Lest I am perceived to be incorrect, plaintiff’s Counsel, Mr Sintwa clarifies the
position in his heads of argument filed on 30th July 2025 as follows:
“57. The plaintiff led evidence that there was no evidence linking him
to the offence of robbery with aggravating circumstances when
he was charged by the police and.
58. That the prosecutor failed to read the docket because had he
done so, he would have seen that there are no statements
linking him to the robbery with aggravating circumstances.
59. Mr Zongo testified there was such statement, but he does not
know in the district court as he was not the prosecutor there and
only came to the matter in the Regional Court.
60. There is no evidence of the prosecutor who enrolled the matter
in the district court but it has been established through evidence
that the statements relating to robbery were the following….
63. There was clearly no evidence in the form o f witness statement
in the docket supporting the allegations of robbery with
aggravating circumstances against the plaintiff.
66. Mr Zongo testified that there was a prima facie evidence linking
him to the offence in the regional court, unfortunately the
prosecution did not start at the regional court but from the district
court and we now know that at the district court during plaintiff’s
appearance there, there was no evidence linking the plaintiff to
the offence of robbery.
71. As pleaded in paragraph 11 of the plaintiff’s particulars of claim,
his case spent 11 months in the district court without any
evidence linking him to the robbery”. (sic)
[43] It is now plainly crystal that during the trial of this matter the issues narrowed
themselves down to malicious prosecution only in respect of robbery with
aggravating circumstances. Again plaintiff’s heads of argument further
narrowed down this issue only to relate to the period when the matter was still
serving in the district court. No finding of liability need be made with regard to
the prosecution in the regional court. In the following paragraphs in plaintiff’s
heads of argument, Mr Sintwa argues thus:
“81. There is plathora of authorities with regard to the amount
awarded for malicious prosecution but before that a concession
has to be made with regard to the prosecution in the regional
court.
82. The prosecution in the regional court does not at tract lability and
therefore the plaintiff is confined to the 11 months of the district
court and we of the view that an amount of five hundred
thousand rand would suffice in that regard” (sic).
[44] We now know that this matter concerns plaintiff’s alle ged prosecution in the
district court for a charge of robbery with aggravating circumstances. This is
now the only proper characterisation and scope of plaintiff’s case for malicious
prosecution. The crisp issue for determination is whether a plaintiff has made
out a case for a claim of malicious prosecution in the district court.
[45] Malicious prosecution is an abuse of the process of the court by intentionally
and wrongfully setting the law in motion on a criminal charge 20. In order to
succeed in an action for malicious prosecution the plaintiff must show the
following:
(a) that the defendant instituted or instigated the proceedings,
(b) the defendant acted intentionally or with animus iniuriandi,
(c) that the defendant acted without reasonable and probable
cause,
(d) that the defendant was actuated by an improper mo tive or
malice,
(e) that the proceedings terminated in the plaintiff’s favour, and
(f) plaintiff suffered damages21.”
20 LAWSA Volume 15, Part 2, Second Edition, Page 175 Para 315
21 Minister of Safety and Security v Moleko 2008 (3) ALL SA 47 (SCA) Para 8.
[46] In order for the plaintiff to succeed in his claim for the malicious prosecution
the essential requirements must all be met. In Funani22 this court made t he
following dictum:
“24. Having found that some requirements have been conceded by
the defendant and others have not been proved by the plaintiff,
a party on whom the entire onus lie, I find that the concession of
other requirements is not helpful to pl aintiff’s case. The test of
proving requirements is conjunctive and not disjunctive. For a
successful claim of malicious prosecution plaintiff must prove
that all the requirements are cumulatively in existence. They
must co exits with each other as they are inextricably linked to or
dependent upon one another for a successful claim of this
nature. Failure to prove one requirement will lead to a dismissal
of plaintiff’s case. Having found that not all the requirements of
the claim have been satisfied, I accordingly find that plaintiff’s
claim cannot succeed with costs”.
[47] Whilst it appears true that the criminal proceedings relating to the robbery
with aggravating circumstances were instituted or instigated in the regional
court it is not clear if there were any criminal proceedings in respect of the
charge of robbery with aggravating circumstances instituted or instigated in
the district court. The annexure is headed as follows:
“ANNEXURE
IN THE REGIONAL COURT: EASTERN CAPE DIVISION
CASE NO: RCUM:130/11”
It is noteworthy that the matter bore a 2011 case number in circumstances
where the event in terms of which the plaintiff was charged occurred in
October 2010. That gives credence to the fact that the charges of robbery with
22 Funani v National Director of Public Prosecutions (1298/2016) [2019] ZAECMHC 71 (5
November 2019).
aggravating circumstances only surfaced after the matter had been
transferred to the regional court.
[48] There is no evidence led to the effect that a charge of robbery with
aggravating circumstances served before the district court. There is no
evidence led to suggest that the plaintiff was prosecuted in the district court in
respect of the offence of robbery with aggravating circumstances. Even the
discovered face of docket does not make mention of an offence of robbery,
but only of an attempted murder. The docket was opened at least at the
inception of the case. If there was, at that stage , a charge of robbery it should
have been adverted on the cover of the docket. The plaintiff therefore failed to
prove that there was instigation of the criminal proceedings in respect of the
charge of robbery. Plaintiff’s alleged prosecution for eleven mo nths does not
appear to have been in respect of the charge of robbery. It is trite that there
must be a prosecution before the plaintiff can bring an action for malicious
prosecution23. The plaintiff has dismally failed to prove the first essential
requirement. On this basis plaintiff’s claim of malicious prosecution cannot
succeed.
[49] A benevolent and generous approach of broadly dealing with this claim of
malicious prosecution on the basis of general reference to the plaintiff’s
prosecution cannot assist plaintiff’s case. Even of it can be said, for example,
there was in broad terms prosecution that took place in the district court, it
would still suffer a deficiency of the last re quisite about termination of
proceedings. There is no evidence or whatsoever that there were any
proceedings terminated in the district court. No action will lie until the criminal
proceedings have terminated in the district court. No action for malicious
proceedings have terminated in favour of the plaintiff 24. Where proceedings
have not terminated, action for malicious prosecution must fail 25. On the facts
have not terminated, action for malicious prosecution must fail 25. On the facts
of this case, it is common cause that no criminal proceedings terminated in
the district court. Even the one relating to attempted murder terminated in the
23 LAWSA Vol 15 (Supra) Page 195 Para 317.
24 Thompson v Minister Police 1971 (1) ALL SA 534 (E) at 375
25 Susman v Krak 1917 TPD 4378 at 438
regional court. Even where there was a claim relating to the prosecution in
respect of attempted murder, it would fail as it would have been instituted with
reasonable and probable cause. I say this in the light of the nature of the
information that was before the prosecutor when a decision to prosecute was
taken.
[50] In the amalgam of all the above, I a m of a considered view that a claim for
malicious prosecution cannot succeed. It must therefore fail.
Both Claims
[51] I have found that a claim of unlawful arrest and detention cannot succeed. I
therefore find that it must be dismissed. The claim for malicious prosecution is
equally unsuccessful. It must therefore be dismissed. The only outstanding
issue is the one relat ing to costs. I see no reason for a deviation from the
general rule that costs should follow the result. The plaintiff must bear the
costs of this action.
Order
[52] In the result I make the following order:
1. Plaintiff’s claim of unlawful arrest an d detention is hereby
dismissed.
2. Plaintiff’s claim of malicious prosecution is hereby
dismissed.
3. The plaintiff is ordered to pay costs of suit.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Plaintiff :ADV SINTWA
Instructed by :N.MANKANKU ATTORNEYS
Office 225
Tracor Building
No 52 Sprigg Street
Mthatha
Tel: 047 531 4990
Email: mankankuno@telkomsa.net
For the 1st and 2nd Defendants: ADV NQABENI
Instructed by : THE STATE ATYTORNEY
Broadcast House
94 Sission Street
Fortgale
Mthatha
Tel: 047 501 9900
Cell :079 626 6344
Ref: 1902/18-A6N (MR NQIWA)
For the 3rd Defendant : ADV KLAASMAN
Instructed by : THE STATE ATTORNEY
Broadcast House
94 Sission Street
Fortgale
Mthatha
Tel: 047 501 9900
Matter heard on :28, 29 and 30 July 2025
Delivered on :12 August 2025