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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 22401/2018
In the matter between:
LUTHANDA MPOSELWA Plaintiff
and
MINISTER OF POLICE First defendant
DIRECTOR OF PUBLIC PROSECUTIONS Second defendant
Case number: 22402/2018
And in the matter between:
BONANI ZELENI Plaintiff
and
MINISTER OF POLICE First defendant
DIRECTOR OF PUBLIC PROSECUTIONS Second defendant
REASONS DELIVERED ON 29 SEPTEMBER 2025
VAN ZYL AJ:
Introduction
1. These two actions were heard together because they arose from the
same facts. 1 The plaintiffs sought delictual damages from the
defendants arising from their alleged unlawful arrest, wrongful detention,
assault, and malicious prosecution.
2. On 18 June 2025, after the close of the plaintiffs’ case, I granted the
following order pursuant to an application by the defendants under Rule
39(6) of the Uniform Rules of Court:2
2.1 The defendants’ application for absolution from the instance at
the close of the plaintiffs’ respective cases is granted in
respect of all of the plaintiffs’ claims , on the basis that there is
not sufficient evidence upon which the Court, applying its mind
reasonably to such evidence, could or might find for the
plaintiffs.
2.2 The plaintiffs are to pay the defendants’ costs of suit jointly and
severally, the one paying, the other to be absolved, including
counsel’s fees taxed on Scale B.
3. The basis of the defendants' application was that the plaintiffs failed to
make out a prima facie case in their evidence to sustain any of their
1 I refer to the plaintiffs collectively as “the plaintiffs”, unless it is necessary to distinguish
between them, in which I case I shall refer to them by name.
2 Rule 39(6): “ At the close of the case for the plaintiff, the defendant may apply for
absolution from the instance, in which event the defenda nt or one advocate on his
behalf may address the court and the plaintiff or one advocate on his behalf may reply.
The defendant or his advocate may thereupon reply on any matter arising out of the
address of the plaintiff or his advocate.”
claims. In furnishing the reasons for the order granted, I set out the
relevant f actual background as it appeared from the pleadings and the
evidence, before discussing the applicable legal principles.
The factual background
The plaintiffs’ arrests
4. On 20 October 2017, members of the South African Police Service
(“SAPS”) arrested the plaintiffs on suspicion of their having been involved
in the rape and murder of Ms Z[...] S[...], which had taken place on 3
September 2017.
The institution of prosecution, and the plaintiff’s continuous detention until bail
5. On 23 October 2017 Ms Harmse, the senior public prosecutor at the
Khayelitsha Magistrates’ Court, preferred charges of rape and murder
against the plaintiff s. Mr Macaba was appointed as prosecutor to the
case, and the matter was postponed to 30 October 2017 for bail
information. The plaintiffs were in custody during this period.
6. On 30 October 2017, the State indicated that it w ould oppose the
plaintiffs’ bail applications as they stood charged with offences listed in
Schedule 6 to the Criminal Procedure Act 51 of 1977 (“the CPA”). T he
matter was postponed to 28 November 2017 for the institution of bail
applications. The plaintiffs had legal representation. On 28 November
2017, Mr Macaba requested the court for a postponement to allow t he
State to obtain two outstanding statements , and the matter was
postponed to 30 January 2018.
7. Before the postponed date, o n 3 January 2018, the State requisitioned
Mr Zeleni, and he was granted bail on an unopposed basis. Mr
Mposelwa remained in custody.
8. On 30 January 2018, the matter was postponed to 14 March 2018 for Mr
Mposelwa’s bail application , and further investigation. On 14 March
2018, Mr Mposelwa's bail application was received , and the matter was
postponed again to 17 April 2018 for the hearing of the bail application.
On 17 April 2018, the matter was postponed until 8 May 2018, due to the
absence of the police docket from court. On 8 May 2018, the matter was
again postponed until 28 May 2018, due to the court roll being full . On 28
May 2018, the matter was postponed for the final time until 26 June
2018.
9. Mr Mposelwa was granted bail on 28 May 2018 an unopposed basis.
The matter has not yet been taken any further.
The institution of these actions
10. On 5 December 2018, the plaintiffs issued summons against the
defendants for damages arising from the plaintiffs’ alleged unlawful arrest
and detention, an alleged assault on them, as well as malicious
prosecution.
11. Their pleadings are similar, and the re levant allegations as pleaded can
be summarised as follows:
11.1 In relation to the unlawful arrest, there was no reasonable or
probable cause in law justify the arrest and assault. Notably,
neither plaintiff pleaded that his arrest had been effected
without a warrant, or on the basis of a defective warrant. The
particulars of claim in each instance relied expressly on the
absence of reasonable grounds for the arrests.
11.2 In relation to assault, SAPS members assaulted them with fists
and open hands, by kicking them, and by suffocating them with
a plastic bag.
11.3 In relation to malicious prosecution and wrongful detention,
there was no reasonable or probable cause for prosecution,
and the prosecutor intentionally and maliciously placed false
information before the court, which led to them being refused
bail. In any event, so the plaintiffs pleaded, on 26 June 2018,
the matter was struck off the roll due to insufficient evidence,
and therefore the prosecution was malicious.
12. The defendants' pleaded case in opposing the relief sought was, in
summary, as follows:
12.1 In relation to the arrest, the police arrested the plaintiffs
lawfully in accordance with the provisions of section 40(1)(b) of
the C PA on suspicion that they committed the offences of
murder and rape.
12.2 In relation to detention, the plaintiffs’ detention was lawful as
they could not be released on police bail prior to their first court
appearance, and they both abandoned their bail application s
on 28 November 2 017. On 3 January 2018, the State
requisitioned Mr Zeleni and fixed his bail on an unopposed
basis.
12.3 In relation to t he alleged assault, the defendants denied that
such assault took place, but admitted that the plaintiffs were
handcuffed.
12.4 In relation to the alleged malicious prosecution the defendants
pleaded that t here was reasonable and probable cause to
prosecute the plaintiffs. The prosecution did not fail because
the matter was struck merely off the roll after the prosecutor
has sought another postponement to follow up on evidence. In
any event, at all material times both SAPS and the prosecutor
acted lawfully.
13. Neither plaintiff delivered a replication to the defendants’ plea.
The plaintiffs’ submissions and evidence
14. The basis of the plaintiffs' contention in support of their claims, as set out
in their counsel's opening statement, was, in brief, that t he arresting
officer did not entertain any reasonable suspicion as to the plaintiffs’
involvement in the offences. Th e plaintiffs relied on a statement of
Sergeant Fana, from which it appeared that Sergeant Fana had received
what he called reliable information that Mr Mposelwa and one Mr Scott
had been involved in the crimes. There was no statement by the
“reliable sour ce” him - or herself. Mr Mposelwa was arrested on 20
October 2017 based on this source only. Under pressure from a
subsequent assault by SAPS members, Mr Mposelwa pointed out Mr
Zeleni as having been involved too, and the latter was arrested.
15. The plaintiffs submitted that, in those circumstances, there could be no
reasonable and probable cause to arrest the plaintiffs , and everything
that happened thereafter was unlawful. The plaintiffs indicated that they
would tender evidence that there was no reasonabl e and probable
cause, and the onus was on the defendants to prove that there was. The
plaintiffs submitted further that the criminal case against the plaintiffs was
struck off the roll because of a lack of evidence. DNA evidence collected
on the scene and from the deceased was compared to plaintiffs ’ DNA,
with negative results. That is why the prosecution has never proceeded.
16. Mr Mposelwa testified in his evidence in chief that , when he asked the
police after his arrest what linked him to the offences, they informed him
that a piece of a wig apparently belonging to the deceased was found in
his house. He described the assault at the hands of SAPS members ,
and stated that his injuries consisted of bruises on his wrists and arms.
He test ified th at, on 28 November 2017, he abandoned his bail
application, because of the strong antagonistic feelings of the community
towards him and Mr Zeleni. He testified, too, that the prosecutor had
told the magistrate that there was evidence linking the blood of the
deceased found on the duvet seized from his house. He was released
on bail on 28 May 2018, after the State no longer opposed bail.
17. Insofar as it relates to the claim based on malicious prosecution, it was
put to Mr Mpo selwa during cross -examination that SAPS’s contention
was that he had been arrested by Constable Mahlomonyane who had
received information about Mr Mposelwa's involvement on the charge of
murder during a briefing conducted by Captains Bavuma and Rossouw in
the early hours of the morning of 20 October 2017. Mr Mposelwa did not
dispute t he contention . It was further put to Mr Mposelwa that the
second defendant (the DPP) did not regard the prosecution as being
finalised. The case was still unsolved, and the DPP a nd SAPS have
continued working on the investigation, even though the matter had been
struck off the roll on 26 June 2018. Mr Mposelwa did not dispute this.
18. Mr Zeleni testified during his examination in chief that the reason for his
arrest was that he had been implicated by Mr Mposelwa. He did not give
any evidence as to the injuries sustained during his alleged assault while
in custody. As regards his detention after arrest, he stated that he
abandoned his bail application o n 28 November 2017, because he
wanted to wait for the outcome of the DNA results before going out in the
wanted to wait for the outcome of the DNA results before going out in the
community. On 3 January 2018, he was released on bail fixed on an
unopposed basis, despite the matter having been postponed to 30
January 2018. Insofar as it relates to the prosecution of the case , Mr
Zeleni testify that the magistrate informed him and his co -accused when
the matter was struck off the roll that , should the State obtain any
evidence, they could come back to court and fetch the accused fr om
where they were residing.
19. This was, in summary, the salient evidence. It was in the context of this
evidence that the defendants applied for absolution from the instance at
the close of the plaintiffs’ case.
The applicable legal framework
20. There are various legal principles that come into play at this stage.
21. In relation to absolution from the instance, the test to apply in considering
an application for absolution is not that the evidence led by the plaintiff s
established a case that would be sustained if the case was to proceed to
its conclusion. The essential inquiry in determining whether to grant
absolution from the instance is whether there is evidence upon which a
court, when applying its mind reasonably, could or might find for the
plaintiffs. In other words, a court would not grant absolution from the
instance in a case where the plaintiff has, at the end of his or her case,
presented an answerable case or prima facie case.
22. In Claude Neon Lights (SA) Lt d v Danie l3 the test for the grant of an
order of absolution was formulated as follows:
"… when absolution from the instance is sought at the close of plaintiff's case,
the test to be applied is not whether the evidence led by plaintiff establishes
what would finally be required to be established, but whether there is evidence
3 1976 (4) SA SA 403 (A) at 409G. Emphasis supplied.
upon which a Court, applying its mind reasonably to such evidence, could or
might (not should, nor ought to) find for the plaintiff.”
23. The test was reaffirmed by the Supreme Court of Appeal (“SCA”) in
Gordon Lloyd Association v Rivera and another:4
“The test for absolution to be applied by a trial court at the end of a plaintiff's
case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403
(A) at 409G-H in these terms:
'... (W)hen absolution from the instance is sought at the close of
plaintiff’s case, the test to be applied is not whether the evidence led by
plaintiff establishes what would finally be required to be established, but
whether there is evidence upon which a Court, applying its mind
reasonably to such evidence, could or m ight (not should, nor ought to)
find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173;
Ruta Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)'
This implies that a plaintiff has to make out a prima facie case - in the sense
that the re is evidence relating to all the elements of the claim - to survive
absolution because without such evidence no court could find for the plaintiff
(Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1 ) SA 26 (A) at 37G
- 38A; Schmidt Bewysreg 4th ed at 91 -2). As far as inferences from the
evidence are concerned, the inference relied upon by the plaintiff must be a
reasonable one, not the only reasonable one (Schmidt at 93). The test has from
time to time been formulated in different terms, especially it has been said that
the court must consider whether there is 'evidence upon which a reasonable
man might find for the plaintiff' (Gascoyne (loc cit)) - a test which had its origin
in jury trials when the 'reasonable man' was a reasonable member of the j ury
(Ruta Flour Mills). Such a formulation tends to cloud the issue. The court ought
not to be concerned with what someone else might think; it should rather be
not to be concerned with what someone else might think; it should rather be
concerned with its own judgment and not that of another 'reasonable' person or
court. Having said this, absolution at the end of a plaintiff's case, in the ordinary
course of events, will nevertheless be granted sparingly but when the occasion
arises, a court should order it in the interests of justice."
4 2001 (1) SA 88 (SCA) para 2. Emphasis supplied.
24. A prima facie case is sometimes referred to as sufficient evidence or
prima facie evidence. Prima facie evidence is evidence which requires an
answer from the other party, and in the absence of an answer from the
other side, it can become “conclusive proof ”. It is use d to refer to the
probative value of the proponent’s case after discharging its burden of
proof, but before the opponent has rebutted it.5
25. The plaintiff s, therefore, were required to establish all the elements
relating to their claims of unlawful arrest, detention, assault, and
malicious prosecution to survive absolution. This Court is not compelled
to make a credibility determination at this point unless the witnesses
have visibly broken down and it is obvious that what they have said is not
true.6
26. In relation to unlawful arrest, s ection 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 to the CPA, other than the offence of escaping from custody:
“40 Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person-
…
(b) whom he reasonably suspects of having committed an
offence referred to in Schedule 1, 7 other than the offence
of escaping from lawful custody; …”
27. It is well settled that police bear the onus to justify arrest without a
5 See S v Boesak 2001 (1) SACR 1 (CC) para 24; Ex parte Minister of Justice: In re: R v
Jacobson and Levy 1931 AD 466 at 478–9.
6 Nhlapo-Khumalo v Minister of Police and others [2024] ZAGPJHC 838 (22 August
2024) para 14.
7 The offences referred to in Schedule 1 to the CPA include rape and murder.
warrant, and detention until the first court appearance. 8 In Duncan v
Minister of Law and Order 9 the jurisdictional facts that must be present
before section 40(1)(b) may be invoked are set out as follows:
"The so-called jurisdictional facts which must exist before the power conferred
by section 40(1)(b) of the present Act may be invoked, are as follows:
(1) The arrester must be a peace officer.
(2) He must entertain a suspicion.
(3) It must be a suspicion that the arrestee committed an offence referred to
in Schedule 1 (other than one particular offence).
(4) That suspicion must rest on reasonable grounds.”
28. Minister of Law and Order and another v Dempsey ,10 in turn, discussed
the general principle as follows:
"Once the jurisdictional fact is proved by showing that the functionary in fact
formed the required opinion, the arrest is brought within the ambit of the
enabling legislation, and is thus justified. And if it is alleged that the opinion was
improperly formed, it is for the party who makes the allegations to prove it .
There are in such a case two separate and distinct issues, each having its own
onus (Pillay v Krishni and Another 1946 AD 946 at 953). The first is whether the
opinion was actually formed, the second which only arises if the onus on the
first has been discharged or if it is admitted that the opinion was actually formed
is whether it was properly formed."
29. In Minister of Safety and Security v Sekhoto and another 11 it was held
that "... . once the jurisdictional facts have been established it is for the
plaintiff to prove that the discretion was exercised in an improper
manner. This approach was adopted in Duncan (at 819 B -D) as being
applicable to attacks on the exercise of discretion under Section
8 Minister of Police and another v Du Plessis 2014 (1) SACR 217 (SCA) paras 14-17.
9 1986 (2) SA 805 (A) at 818G-H.
10 1988 (3) SA 19 (A) at 38G. Emphasis supplied.
9 1986 (2) SA 805 (A) at 818G-H.
10 1988 (3) SA 19 (A) at 38G. Emphasis supplied.
11 2011 (5) SA 367 (SCA) para 46, and see the discussion at paras 48-50. Emphasis
supplied.
40(1)(b)."
30. Mabona and another v Minister of Law and Order 12 held that the
information received by the police need not necessarily be of sufficiently
high quality and cogency to support a conviction . Section 40(1)(b)
requires suspicion , not certai nty, provided that the suspicion must be
based on solid grounds.
31. Turning to malicious prosecution, in Minister of Justice and Constitutional
Development and others v Moleko,13 it was held that:
“In order to succeed (on the merits) with a claim for malicious prosecution, a
claimant must allege and prove –
1. that the defendants set the law in motion (instigated or instituted the
proceedings);
2. that the defendants acted without reasonable and probable cause;
3. that the defendants acted with ‘malice’ (or animo injuriandi); and
4. that the prosecution has failed….”
32. I consider the evidence against these broad principles.
The application of these principles to the relevant facts
33. It is common cause that plaintiffs were arrested without a warrant and by
police officers. Thus, the provisions of section 40(1)(b) appl y in
assessing whether the plaintiffs have adduced evidence upon which a
court, applying its mind reasonably, could or might find for the plaintiffs.
The claims based on the alleged unlawful arrest and detention
12 1988 (2) SA 654 (SE) at 658H. See also Minister of Police v Nyoni and another [2024]
ZAGPJHC 245 (5 March 2024) paras 15-16.
13 2009 (2) SACR 585 (SCA) para 8.
34. As indicated above, the plaintiffs' original contention in support of their
claim for unlawful arrest and detention was that SAPS arrested them on
20 October 2017 only based on information received from a “reliable
source” who did not m ake an affidavit and who was not identified .
Therefore, the plaintiffs submitted, there was no reasonable and
probable cause to arrest either of them.
35. I have mentioned that the plaintiffs did not base thein claim on the fact
that their arrests took place without warrants. Their issue was the
alleged absence of reasonable and probable grounds for the arrests. As
such, they had (on the authority of Dempsey and Sekhoto) to prove that
the suspicion on which the police acted in arrest ing them had been
improperly formed. The defendants’ onus in relation to arrests without a
warrant therefore did not stand in the way of the possibility of the grant of
absolution at the close of the plaintiffs’ case.
36. The plaintiffs’ version was, however, materially undermined by their own
oral evidence. As indicated earlier, Mr Mposelwa testified that, before his
appearance at court, he asked the police what linked him to the case ,
and he was i nformed him that it was the hair found in his house. Mr
Mposelwa therefore knew, even before his first appearance in court, that
his arrest had not only been based on the information from the “reliable
source”.
37. I agree with the submission of counsel for the defendants that Mr
Mposelwa knew that SAPS had followed up on the information received
from the source , and obtained evidence, namely a piece of hair in the
form of a piece of a wig found during a search and seizure operation
conducted on his house, which was considered a crime scene. The
piece of hair placed in the victim in Mr Mposelwa’s house. In addition to
the information from the source, therefore, it is the piece of hair upon
which the police exercised their discretion in terms of the provisions of
section 40(1)(b) and arrested him without a warrant. The presence of the
hair associated with the deceased was a solid ground (to use the
language of Mabona supra ) for the police to form and entertain a
suspicion that Mr Mposelwa had been involved in the crimes under
investigation.
38. Mr Zeleni testified that the police went to his workplace to arrest him , and
they took Mr Mposelwa and Mr Scott with them. When he asked the
police as to what link ed him to the case, he was i nformed that Mr
Mposelwa had implicated him. Mr Zeleni further te stified that it was not
the first time that Mr Mposelwa had implicated him in some unlawful
activity, and he (Mr Zeleni) did not know why Mr Mposelwa had done
that.
39. It was also pointed out to the plaintiffs in cross -examination that Mr Scott
had identified them as being the ones last seen with the victim.
40. The upshot of this evidence, regarded holistically, is that both Mr
Mposelwa and Mr Zeleni knew all along that the police did not act only on
the information from the undisclosed source, but had made follow -up
investigations which led to SAPS uncovering evidence which caused
them to invoke their discretion under section 40(1)(b) of the CPA. The
suspicion entertained by SAPS was reasonable in the circumstances .
The plaintiffs' contention t hat the police acted only on the say-so of an
unidentified source rings hollow . N o court exercising its discretion
reasonably can find in their favour – on the basis of their evidence - that
the police acted unlawfully, outside the bounds of section 40(1)(b).
41. In Nhlapo-Khumalo v Minister of Police and others14 the court granted an
application of absolution from the instance against the plaintiff who sued
the police for unlawful arrest after having been arrested without a warrant
14 [2024] ZAGPJHC 838 (22 August 2024) paras 20-24. Emphasis supplied.
for carjacking and attempted murder, when the evidence in the docket
indicated that he had been pointed out by his co-accused. The court held
– in terms relevant to the present case - as follows:
“[20] The evidence presented demonstrates that the police in effecting the
arrest had reasonably suspected that the plaintiff had committed the crimes
alleged. The evidence demonstrate that he was pointed out as an accomplice
by the other 3 accused who, when apprehended confessed to the crimes as
committed. On this basis, it is ther efore justified to infer on a balance of
probabilities that the arrest was based on solid grounds. I therefore, find that the
jurisdictional facts for arrest were satisfied.
[21] Once the jurisdictional facts for an arrest are present, discretion arises. The
general requirement is that any discretion must be exercised in good faith,
rationally and not arbitrar ily. The question therefore is whether members of the
SAPS’ exercise of discretion was within the confines of the enabling legislation.
It must be borne in mind that a party who attacks the exercise of discretion
where the jurisdictional facts are present bears the onus of proof.
[22] The Supreme Court of Appeal in Minister of Safety and Security v
Sekhoto held:
“… . once the jurisdictional facts have been established it is for the plaintiff to
prove that the discretion was exercised in an improper manner. …”
[23] In this matter, it has already been determined that car hijacking, robbery
and attempted murder fall under both schedule 1 and 6 of the Criminal
Procedure Act. It is therefore unfounded for the plaintiff to claim that members
of the SAPS improperly exercised their discretion by arresting the plaintiff
without first obtaining a warrant for his arrest. In my view, this assertion is not
supported by law.
[24] On the claim of unlawful detention, it is well established that an arrest and
detention are separate legal processes, so much so that while the arrest may
detention are separate legal processes, so much so that while the arrest may
be lawful; the detention may be unlawful; the fact that both result in someone
being deprived of her or his liberty does not make them one legal
process. Having said that, the evidence in this matter demonstrate that the
issue of arrest and subsequent detention of the plaintiff are intertwined. I have
already concluded that the conduct of the member of the SAPS caused no
harm in arresting the plaintiff, it then follows that detention was justified.”
42. In the present case, it is unfounded for the plaintiffs to claim that the
police improperly exercised their discretion by arresting them without a
warrant when there was evidence in Mr Mposelwa's house upon which
the police could rely , as well as the pointing out made against Mr Zeleni
by Mr Mposelwa and Mr Scott.
43. On the evidence before this Court, the jurisdictional requirements have
been met to show that the police were entitled to invoke the provisions of
section 40(1)(b) to arrest the plaintiffs without warra nts of arrest. As
stated in Sekhoto supra, once the jurisdictional facts have been
established, it is for the plaintiffs to prove that the discretion was
exercised in an improper manner . The plaintiffs’ attempt to do so was
thin in the extreme, and was ultimately eroded by their own evidence.
44. The plaintiffs’ detention following arrest was lawful as they could not be
released on police bail , and they both abandoned their initial bail
applications. It is clear from the documentation that was submitted into
evidence how the matter progressed from court day to court day. The
plaintiffs did not lead any evidence that would even prima facie indicate
that the detention was unlawful.
The claims based on the alleged malicious prosecution
45. As indicated, a plaintiff pursuing a claim based on malicious prosecution
is required to adduce prima facie evidence to prove , on a balance of
probabilities, that:
45.1 the defendant (in this case, the second defendant as DPP) set the
law in motion;
45.2 the instigation of the proceedings was without probable cause;
45.3 the proceedings were perpetrated with malice, and
45.4 the prosecution failed.
46. All four of these requirements must be present for a successful claim.
47. The DPP admits having set the law in motion in t he present case, but
denies the other elements of the claim. The first requirement has thus
been satisfied.
48. I discuss the fourth requirement at the outset . It is undisputed that the
matter was struck off the roll in June 2018, and not dismissed. This
occurred after the prosecutor had asked for a further postpon ement in
order to facilitate the investigation, despite having been granted a final
postponement on the previous occasion. The charges have never been
withdrawn as against the p laintiffs, and the plaintiffs have not been
acquitted on the merits. Mr Zeleni, in fact, testified th at the magistrate
had explained to the plaintiffs on 26 June 2018 that the that the
prosecution remained pending as, should the State obtain further
evidence, it was at liberty to return to court and to collect the plaintiffs
from their residences for that purpose.
49. It is thus common cause that it was made clear to the plaintiffs that the
striking of their matter off the roll was not a failure of prosecutio n as
envisaged for purpose of the jurisdictional requirements of malicious
prosecution.15 In these circumstances, I agree with the submission by
15 See Nhlapo-Khumalo v Minister of Police and others supra para 29: “ Further, the fact
that the matter was struck off the roll at some stage cannot be equated to failed
the defendants’ counsel that the plaintiffs failed to make out a prima
facie case that the prosecution failed.
50. The plaintiffs’ c ounsel argued that, as the matter has never been
reinstated, the prosecution should be regarded as having failed. He did
not cite case law in support of this contention, but i f I am wrong in
relation to the fourth requirement , that leaves the second and third
requirements for a claim based on malicious prosecution. I do not
consider the plaintiffs to have overcome those two hurdles.
51. In Minister of Police v Ayanda Marula 16 the court remarked that lack of
probable cause and malice are two distinct elements, both of which
must be proved.
52. In Minister of Justice and Constitutional Development v Moleko 17 it was
held that:
“Reasonable and probable cause, in the context of a claim for malicious
prosecution, means an honest belief founded on reasonable grounds that the
institution of proceedings is justified. The concept there fore involves both a
subjective and an objective element – ‘Not only must the defendant have
subjectively had an honest be lief in the guilt of the plaintiff, but his belief and
conduct must have been objectively reasonable, as would have been exercised
by a person using ordinary care and prudence’”.
53. The SCA held further18 that, in claims for malicious prosecution, animus
iniuriandi includes not only the intention to injure but also
consciousness of wrongfulness:
prosecution. …” See also Nogwebele v Minister of Police 2016 (2) SACR 662 (WCC)
para 84.
16 [2022] ZAECMKHC 112 (29 November 2022) para 36.
17 2009 (2) SACR 585 (SCA) para 20.
18 Moleka supra paras 63-64. Emphasis supplied.
“63. … ‘In this regard animus injuriandi (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 injuriandi, will be lacking. His mista ke therefore excludes the
existence of animus injuriandi.’
64. The defendant must thus not only have been aware of what he or she was
doing in instituting or initiating the prosecution, but must at least have foreseen
the possibility that he or she was acting wrongfully, but nevertheless continued
to act, reckless as to the consequences of his or her conduct (dolus
eventualis). Negligence on the part of the defendant (or, I would say, even
gross negligence) will not suffice.”
54. The SCA in Minister of Safety and Security v Tyokwana 19 dealt with the
requirement of animus (that is, malice) and remarked that a plaintiff is
required to prove that the defendant intentionally pursued the
prosecution despite knowing that there were no reasonable grounds for
doing so.
55. In th e present matter the plaintiffs presented no prima facie evidence
showing that the DPP doggedly prosecuted despite a lack of
reasonable and probable grounds to do so. It is clear from the plaintiffs’
testimony that there was independent evidence in addition to
information from the unidentified source upon which the prosecutor
preferred the charges against them.20
19 2015 (1) SACR 597 (SCA) para 15.
20 See Minister of Safety and Security v Lincoln 2020 (2) SACR 262 (SCA) para 48,
20 See Minister of Safety and Security v Lincoln 2020 (2) SACR 262 (SCA) para 48,
where the SCA held that Lincoln had not prima facie established the absence of
reasonable and probable cause for his prosecution, and that the Minister ought to
have been absolved from the instance: “ [48] As far as the subjective element of this
56. No evidence was adduced to prove that the prosecutor, Mr Macaba,
misled the court in any manner. Both of the plaintiffs abandoned their
bail applications on 28 November 201 7. After the State received the
forensic report showing no DNA linking Mr Zeleni to the crime scene,
the prosecutor brought him before court in early January 2018 , before
the remand date of 30 January 2018 , and the court fixed his bail on an
unopposed basis.
57. Mr Mposelwa testified that he abandoned his bail application because
the prosecutor had told the magistrate that there was evidence linking
the blood of the deceased found on the duvet seized from his h ouse.
The magistrate’s contemporaneous notes , admitted into evidence, d o
not reflect any such submission . Mr Mposelwa also testified that he
initially abandoned his bail because there was hostility towards him
from the community. The history of the crimin al proceedings, contained
in the magistrate’s notes, indicates that the prosecutor acted impartially
in his dealings with the matter . Mr Mposelwa was granted bail on 28
May 2018.
58. On 26 June 2018, it appeared that the investigation had stalled, as the
police were still waiting for two statements. When he asked for another
postponement, the court was not inclined to grant it, and the matter was
struck off the roll. There is nothing in this evidence which supports a
prima facie case upon which a reasonabl e court could or might find in
favour of the plaintiffs’ claim that the prosecutor conducted himself with
malice in the prosecution of the criminal case.
requirement is concerned, Knipe and Rossouw testified that they believed that the
evidence which they had obtained made a prop er case to support the charges. This
was confirmed by Bouwer. The majority is of course correct that the reasonable and
probable cause which may be apparent from the docket could have been contrived.
That was Lincoln’s case. But what the majority lost sigh t of was that Lincoln bore the
That was Lincoln’s case. But what the majority lost sigh t of was that Lincoln bore the
onus to prove this, as I have pointed out earlier. He did not even attempt to do so. In
my view the minority was therefore correct in holding that Lincoln had not prima facie
established the absence of reasonable and probable cause and that the Minister
ought to have been absolved from the instance.” (Emphasis supplied.)
The alleged assault
59. The plaintiffs did not present any evidence regarding the assault and
their injuries except for their say-so. There is no evidence to the effect
that they had been taken to a doctor during their detention to treat their
injuries. Mr Mposelwa alluded to injuries on his wrists, arms, leg s and
back. He undertook to present e vidence from a doctor in support of his
claim, but closed his case without doing so. Mr Zeleni did not testify as
to his injuries at all.
60. There is , in my view, no prima facie evidence upon which this Court
could or might find in the plaintiffs' favour in relation to this aspect of
their claims.
Conclusion
61. In all of these circumstances I considered that, based on the evidence
presented in the context of the pleadings , there was no prima facie
evidence upon which this Court could or might find in the plaintiffs’
favour on any of their claims.
62. It was thus in the interests of justice to grant the defendants' application
for absolution from the instance.
P. S. VAN ZYL
Acting Judge of the High
Court
Appearances:
For the plaintiffs: Mr D. Filand, instructed by Lin gani &
Partners Inc.
For the defendants: Mr M. Titus, instructed by the State
Attorney