IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
CASE NO: CA58/2025
In the matter between:
THE MINISTER OF POLICE First Appellant
(First defendant a quo)
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Second Appellant
(Second defendant a quo)
And
PHINDILE PAYI Respondent
(Plaintiff a quo)
__________________________________________________________________
APPEAL JUDGMENT
__________________________________________________________________
LOWE J
Introduction
1. This is an appeal, with the leave of the Supreme Court of Appeal. I will refe r to
the parties as they were in the action for convenience.
2. Plaintiff brought an action against first and second defendant seeking:
2.1. Claim 1: Compensation for unlawful arrest and detention on
13 August 2018, before plaintiff’s first court appearance on 15 August
2018 at Gqeberha, he being arrested without a warrant on a charge of
rape and or kidnapping. Plaintiff pleads that the arrest was wrongful and
unlawful. He claimed damages in the sum of R100 000,00, allegedly
“general damages in respect of the pl aintiff’s wrongful arrest” , and then a
further claim in respect of “general damages for the wrongful and unlawful
detention, the deprivation the plaintiff’s liberty, as well as contimelia” in the
sum of R300 000,00, in fact a total of R400 000,00, (but pleaded as a total
of R300 000,00). In the prayers, however, plaintiff claims “ R300 000,00 in
respect of plaintiff’s claim 1”.
2.2. Claim 2: A claim for damages arising from plaintiff’s “ wrongful and
unlawful continued detention” for the pe riod commencing 15 August 2018
to 12 September 2018, when he was released from custody, the claim
being in the sum of R2 500 000,00 for deprivation of liberty;
2.3. Claim 3: A claim for malicious prosecution, on the basis that on or about
13 August 2018 the mem bers of the South African Police Services and
the National Prosecution Authority set the law in motion against plaintiff,
on a charge of rape and kidnapping, and did so maliciously those
proceedings terminating in plaintiff’s favour on 12 September 2018, t he
charges being withdrawn. The sum or R500 000,00 is claimed as
damages therefor.
3. First defendant pleads to Claim 1 denying that plaintiff was arrested unlawfully,
pleading a lawful arrest on the basis of a reasonable suspicion, he having been
pointed out by the complainant for the offence of kidnapping, a Schedule 1
offence in terms of the Criminal Procedure Act, further disputing any
unlawfulness in the extended detention, which was admitted, and denying
malicious prosecution.
4. It appears from the plea to Claim 1 that the arrest was certainly without a
warrant, plaintiff having alleg edly committed the offence of kidnapping
complainant pointing out the crime scene as the plaintiff’s residence and his,
so-called, accomplice in respect of kidnapping and rape.
5. It should be made clear, however, that the charge relevant is in fact a Sche dule
1 offence of kidnapping, not kidnapping and rape. It is said that there was a
reasonable suspicion justifying the arrest. The period of detention is admitted
but said to be lawful.
6. The Judge a quo, having heard the evidence, found for plaintiff as follows:
6.1. In respect of Claim 1 the plaintiff’s claim succeeds, first defendant ordered
to pay plaintiff R100 000,00 for unlawful arrest and detention for two days
from 13 August 2018 to 15 August 2018;
6.2. In respect of Claim 2 the defendants jointly and seve rally are held liable
and were ordered to pay plaintiff the sum of R800 000,00 for a further
detention of 30 days from 15 August 2018 to 12 September 2018;
6.3. In respect of Claim 3, (malicious prosecution), that the second defendant
was liable therefor and w as ordered to pay plaintiff the sum of
R300 000,00;
6.4. Interest on all the claims was to run at the prescribed rate from date of
judgment;
6.5. The respective defendants, in accordance with the orders, were to pay
plaintiff’s costs.
7. The appeal on behalf of both d efendants, alleges that the judge a quo erred in
every respect, plaintiff’s claim to be dismissed with costs, but also separately
challenging the quantum of the awards in each instance.
The basic principles relevant to such actions
8. Our courts have freq uently confirmed that the onus to justify an arrest and the
initial period of detention, is born by first defendant, where the arrest is admitted
and pleaded to be a lawful arrest.1
9. The first defendant pleaded that plaintiff was lawfully arrested for h aving
committed the offence of kidnapping, being an offence referred to in Schedule 1
of the Criminal Procedure Act, 1977, he being “ lawfully arrested without a
warrant”.
10. Whilst this is not stipulated in the plea, as it should have been, the arrest is
clearly one purportedly in terms of section 40(1) of the Criminal Procedure Act,
more particularly section 40(1)(b), being an arrest without a warrant by a peace
officer of plaintiff whom he “ reasonably suspects of having committed an
offence referred to in Schedule 1 other than the offence of escaping from lawful
custody”.
11. Irrespective of which subsection of section 40 is relevant to this matter, the first
appellant chose to rely on, the arresting officer is required to have a reasonable
suspicion that an offence has been committed.2
1 Mahlangu and Another v Minister of Police 2021 (2) SACR 594 (CC) at para [32].
2 Mabona v minister of Law and Order 1988 (2) SA 654 (SE) at 658E – H which sets out the following:
The test of whether a suspicion is rea sonably entertained within the meaning of s 40(1) (b) is objective (S v Nel
and Another 1980 (4) SA 28 (E) at 33H). Would a reasonable man in the second defendant's position and
possessed of the same information have considered that there were good and sufficient grounds for
suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property
knowing it to have been stolen? It seems to me that in evaluating h is 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, ie something which 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
12. The lawfulness of an arrest in such circumstances is intricately connected to
the facts of each individual situation.3
13. This requires the objective standard of the reasonable person, in these
circumstances particularly relevant to the holding of a reasonable suspicion. 4 It
is further important to note that when a peace officer has an initial suspicion,
steps have to be taken to confirm this to be a “ reasonable” suspicion before the
arrest.5
14. As to Claim 2, in respect of the further detention, this has as its essence, the
claim that this detention was unlawful for breach of what is known as a public
law duty.6 When the police wrongfully detain a person, it may be, that they are
also liable for the post -hearing detention of that person depending on all the
facts and circumstaces.
15. As pointed out in Minister of Police v National Director of Public
Prosecutions and Erasmus7, the cases show that such liability w ill lie where
there is proof on a balance of probability that: Firstly, there was culpable and
unlawful conduct of the police and, secondly that this was a factual and legal
cause of the post-hearing detention being demonstrated. In Woji v Minister of
Police (supra) the court held that the culpable conduct of the investigating
officer consisted of giving false evidence during the bail application which
but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or
arbitrary, and not a reasonable suspicion.
3 Minister of Safety and Security v Van Niekerk 2008 91) SACR 56 (CC) par [20].
4 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 814D.
5 Nkambule v Minister of Law and Order 1993 (1) SACR 434 (T).
6 Woji v Minister of Police 2015 (1) SACR 409 at para [28]; De Klerk v Minister of Police 2022 (1) SA CR 1 CC;
Mahlangu (supra) at para [38].
7 Supreme Court of Appeal case number 366/2021 [2022] ZASCA 57 (22 April 2022).
caused its refusal and resultant deprivation of liberty. In Minister of Safety
and Security v Tyokwana8, this liability of the police for post-hearing detention
was based on the fact that the police culpably failed to inform the prosecutor
that the witness statement implicating the respondent had been obtained under
duress and was subsequently recanted and were consequently there was no
evidence linking the respondent to the crime.
16. As pointed out in Minister of Police v NDPP (supra), and De Klerk vs
Minister of Police9 the decisive consideration (in both judgments), that held for
the appellant, was that the investigating officer knew that the appellant would
appear in a “ reception court” when the matter would be remanded without the
consideration of bail.
17. In Mlhlangu and Another v Minister of Police 10 the investigating officer had
deliberately suppressed the fact that the confession which would constitute the
only evidence against the appellants, had been extracted by torture, and thus
thereby caused their continued detention.
18. It is clear from the authorities, referred to above, and the various judg ments in
De Klerk , that there is a difference of view, half the court in De Klerk
considering that a deliberative judicial decision in respect of a further detention
constitutes an intervening act which ends the liability of the police for wrongful
arrest and detention, the other half of the court considering that a remand order
by a magistrate, does not necessarily render subsequent detention lawful the
issue being whether, substantively, there was just cause for the latter
8 [2014] ZASCA 130; 2015 (1) SACR 597 (SCA),.
9 2020 (1) SACR (CC) para [58] and [76].
10 2021 (2) SACR 595 (CC)
deprivation of liberty, in which regard attention must be given to the manner in
which the remand order was made.11
19. As to reasonable and probable cause for a prosecution, and malicious
prosecution, the plaintiff must allege and prove that;
19.1 defendant set the law in motion – that defendant instigated or
instituted the proceedings;
19.2 defendant acted without reasonable and probable cause;
19.3 defendant acted with malice (animo iniuriandi), that is with intention
to injure plaintiff, and;
19.4 the prosecution failed.12
20. In summary, the lack of reasonable and probable cause provides that the
proceedings must have been instituted without an honest belief, based on
reasonable grounds, that the institution of proceedings were justified involving
both a subjective and objective element. The proper approach to a situation
where it is established that a defendant instigated the prosecution without
reasonable and probable cause, is then to go on to the enquiry as to whether
defendant acted with malice or animus injuriandi. To succeed in the second leg
of the enquiry plaintiff must prove not only intent to injure but also
consciousness of wrongfulness. 13 Malice means that the defendant directed
his or her will to prosecuting the plaintiff in the awaren ess that reasonable
grounds for the prosecution were absent.14
11 De Klerk para [62].
12 Minister of Justice and Constitutional Development and Others v Moleko 2009 (2) SACR 585 SCA; Minister
of Safety and Security NO v Schubach [2014] ZASCA 216.
13 Ledwaba v Minister of Justice and Constitutional Development and Others [2024] ZASCA 17 at para graph
[22] and [23].
14 Minister of Justice and Constitutional Development v Moleko 2009 (2) SACR 585 (SCA) par [8] and [63].
21. Moleko (supra) held that animus injuriandi “ means that the defendant directed
his or her will to prosecuting the plaintiff in the awareness that reasonable
grounds for the prosecution were absent”.
22. As to reasonable and probable cause, or the absence thereof, the first enquiry
means that plaintiff must establish that defendant did not have such information
as would lead a reasonable man to conclude that plaintiff had probably been
guilty of the offence charged, if despite his having such information defendant is
shown not to have believed in plaintiff’s guilt, a subjective element comes into
play and disproves the existence, for the defendant, of reasonable and
probable cause. 15 It is important to understand that this does not mean
whether there is sufficient evidence upon which the accused may be convicted,
a much stronger test, this simply being the reasonable belief objectively that the
person was probably guilty of the offence. 16 The test for reasonable and
probable cause is an objective test not based on the subjective beliefs or
motives of the prosecutor.
23. In practical terms this means that the prosecutor need not have evidence
establishing a prima facie case, or proof beyond reasonable doubt, when
deciding to initiate a prosecution. Suspicion of guilt on reasonable grounds
suffices. The question is what “ a reasonable prosecutor would have done in
light of the information available at the relevant stage”.17
15 Beckenstrater v Rottcher and Theunnissen 1955 (1) SA 129 (A) 135 – 136 (A – C).
16 National Director of Public Prosecutions v Mdhlovu 2022 [ZASCA] 85 (3 June 2024); Prinsloo and Another v
Newman 1975 (1) SA 481 (A).
17 Mdhlovu (supra) para [20] and [21]
24. In respect of m alice this simply means the intention to injure or animus
iniuriandi.18
The evidence
25. The approach, on appeal, to the evidence of a trial court is well established as
is the appeal court’s power to interfere with the court a quo’s findings and
ruling.
26. In Bernert v Absa Bank19 the court held that:
“The principle that an appellate court will not ordinarily interfere with a factual
finding by a trial court is not an inflexible rule. It is a recognition of the
advantages that the trial court enjoys, which the appellate court does not. These
advantages flow from observing and hearing witnesses, as opposed to reading
'the cold printed word'. The main advantage being the opportunity to observe the
demeanour of the witnesses. But this rule of pra ctice should not be used to 'tie
the hands of appellate courts'. It should be used to assist, and not to hamper, an
appellate court to do justice to the case before it. Thus, where there is a
misdirection on the facts by the trial court, the appellate cou rt is entitled to
disregard the findings on facts, and come to its own conclusion on the facts as
they appear on the record. Similarly, where the appellate court is convinced that
the conclusion reached by the trial court is clearly wrong, it will reverse it.”
27. The trial court carefully summarised and analysed the evidence in this matter,
correctly setting this out, and as I further summarise below.
28. The applicant was arrested without a warrant on 13 August 2018 for allegedly
committing the offences of kidnaping and rape, being detained at the
18 Maoki v Reckitt and Colman Africa (Ltd ) 1968 (3) SA 98 (A); Relyant Trading Pty Ltd v Shongwe [2007] 1 All
SA 375 (SCA).
19 2011 (3) SA 92 (CC) at [106]; Makate v Vodacom (Pty) Ltd 2016 (4) SA721 (CC).
Motherwell Police station. On 15 August 2018 the matter was postponed until
24 August 2018 for a formal bail application at the instance of both first and
second defendants. His release from custody was opposed, and on
24 August 2018, his bail application stood over to 28 August 2018 at the
instance of the public prosecutor and investigating officer. On 28 Augu st 2018
plaintiff’s bail application was again remanded to 12 September 2018 at the
specific request and instance of the public prosecutor again acting in concert
with the investigating officer. On 12 September 2018, despite there being no
change in appel lant’s personal circumstances, the public prosecutor and
investigating officer no longer opposed bail, and he was in any event released ,
the case being struck off the roll due to lack of evidence.
29. The crime with which appellant was charged was a Schedule 6 offence.
30. In the evidence, plaintiff testified, calling no other witnesses. The defendants
called the arresting officer, Sergeant Mnyango, Constable Andries, Captain
Sibane and the prosecutor Mr. Mavakala.
31. Put shortly, plaintiff’s evidence was t hat on 12 August 2018, the day before his
alleged unlawful arrest, he was in the company of Mr. Beyi and Mr Junior
travelling in Beyi’s motor vehicle, plaintiff in the back seat. They went to a
tavern in Motherwell consumed alcohol, plaintiff going to the vehicle, having
had too much to drink, and falling asleep. He was woken by his companions
approaching the vehicle with five ladies and a male. The complainant was one
of the ladies. He says that the complainant sat on Beyi’s lap in the front seat,
the vehicle proceeding to the beach. He was of the view that Beyi was involved
in a “ love relationship ” with the complainant. They left the beach travelling
towards the complainant’s home, some of the ladies already leaving the vehicle
before that.
32. Plaintiff remained in the vehicle with the driver, his girlfriend, complainant and
Beyi, they arriving at plaintiff’s home. Beyi asked for a place to sleep, plaintiff
agreeing, they leaving the vehicle. Plaintiff, Beyi and the complainant went to a
bedroom where they were going to sleep for the night, he staying in the lounge,
playing music and drinking. In the early hours of the morning complainant
appeared, sat with plaintiff in the lounge and said she wanted to leave. He said
that it was unsafe as it was a bout 3 in the morning, she should wait there being
no taxis. He said he would accompany her to get a taxi later and gave her
some food and water. When plaintiff went to the kitchen to fetch water,
complainant left the house and ran away, as it was put, t aking with her, says
plaintiff, his money and two cellphones that had been in the bedroom where
she and Beyi slept, he chasing her. She went to a neighbour’s house, followed
by plaintiff who informed the owner what had happened. Returning to his
home, he continued with what he was doing, finding Beyi still asleep – who
woke between 6 and 7 am and left the house.
33. At about 08h00 the same morning, as he was about to hang his laundry, two
police officers, Mnyango and Andries arrived with complainant asking “is this
the person?”. She said no, and they asked plaintiff where Beyi was, he said
that he stayed in the location. They then said that they would “ keep” plaintiff
until they found Beyi, he directing them to where Beyi lived. They found Beyi
who with plaintiff was arrested for rape and kidnapping.
34. Plaintiff also testified as to the shockingly bad conditions of the police cells as
also those at St Albans prison which were not as bad however.
35. Sergeant Mnyango’s evidence in summary set out that he w as on duty on the
day in question when a Ms. Kolisi reported complainant’s rape, Andries
attending to her. Thereafter Mnyango, Andries and Kolisi proceeded to Kolisi’s
house where the complainant was. On arrival the complainant informed them
that she was taken by the plaintiff and Beyi, and that Beyi had raped her while
the plaintiff was present in the house. Mnyango said he entertained a
reasonable suspicion that plaintiff committed an offence referred to in Schedule
1 and arrested him, he pointed out b y complainant. He conceded in cross -
examination however, that complainant told him that it was not plaintiff who had
raped her. He said that when complainant told him that plaintiff had refused to
open the door to the house (when she woke up) he conclude d that plaintiff had
kidnapped her. He conceded that the suspicion did not rest on reasonable
grounds and in fact was unreasonable in the circumstances – although this was
not for him to decide.
36. Put shortly, Andries’s evidence distanced herself from th e arrest of plaintiff
saying there was no evidence linking plaintiff to the commission of the offences,
that she did not complete the pointing out statement, but that Mnyango had
done so, she saying that they had not received sufficient information pertain ing
to the role of the plaintiff.
37. Captain Sibane, said in evidence, that he was the investigating officer, he
taking a statement from complainant on 13 August 2018 (after the arrest). He
disagreed that there was no evidence implicating plaintiff, but c onceding in
cross-examination, that he had said at the bail proceedings that there were no
elements of rape and kidnapping against plaintiff.
38. Finally, the prosecutor, Mavakala, an acting senior public prosecutor at the
time, testified that having read t he statement of complainant, on 15 August
2018, he had to determine whether there was a prima facie case against
plaintiff and Beyi, he so concluding. He charged them with rape and
kidnapping. He and Sibane decided to oppose bail, postponing the matter t o
allow plaintiff and Beyi to apply for legal aid. He said that plaintiff had acted in
common purpose with Beyi, but conceded that complainant’s statement
contained no detail indicating the role played by plaintiff in the commission of
the offences.
The analysis: Claim 1
39. Applying the legal principles referred to above in this regard, the trial Judge
concluded that there was nothing in the evidence to suggest that plaintiff had
anything to do with forcing complainant not to alight from the vehicle, driv e to
his house or that he had refused to let her go from his house simply suggesting
that she stayed. The trial Judge also correctly concluded that Mnyango had not
informed plaintiff of his rights when arresting him and did not give the plaintiff
an opportunity to explain and tell his side of the story before effecting the arrest.
40. The trial Jduge held that Mnyango decided to arrest plaintiff, prior to
complainant’s statement being taken, having no information or further
information to assess sufficientl y, or give consideration as to whether an arrest
was justified on the objective facts.
41. The trial Judge took into account that Andries was of the view that there was no
evidence upon which plaintiff should be arrested.
42. The trial Judge concluded, perfectly correctly, on the evidence and on the
appropriate application of the law, that first defendant failed to discharge the
onus justifying the arrest.
43. Having analysed the facts against the legal position, I agree with th e findings
made by the trial Judge, and the appeal must fail in this respect.
The analysis: Claim 2
44. In this regard, the trial Judge, again, perfectly correctly summarised the
relevant evidence in this regard. It is more than clear that sergeant Mnyango,
and those other police officers involved, failed to apply their minds in respect of
plaintiff’s detention, and continued detention, let alone adopting an appropriate
approach to his being granted bail, which they resisted. This is however not,
without more such as to render the first defendant liable.
45. It is trite and stipulated in Mvu v Minister of Saf ety and Security and
Another20 citing with approval Hofmeyr v Minister of Justice and Another ,21
that even where an arrest is lawful a police officer must apply his mind to the
arrestee’s detention and the circumstances relating thereto and the failure to do
so properly is unlawful. That is however not the end of the enquiry.
20 2009 (2) SACR 291 (GSJ) para [10]
21 1992 (3) SA 108 (C)
46. The real question in this matter however, is whether, as set out above, there
was culpable and unlawful conduct of the police which factually and legally was
a cause of the post-hearing detention.
47. This, relevant to first defendant, is a more difficult issue to decide than the
original unlawful arrest.
48. In my view, however, Mnyango should ideally have drawn to the prosecutor’s
attention, that he had arrested plaintiff without ha ving taken a statement from
complainant, and that constable Andries was of the view, for good reason, that
there was no evidence implicating plaintiff. The persistent refusal to grant bail
and the decision of the police to oppose bail was, in my view, not based on
reasonable grounds and was a culpable failure on the part of the police
involved. The question is however whether this was, in fact, a cause of the
post-hearing detention.
49. The fact remains that a deliberative judicial decision may indeed const itute an
intervening act truncating the liability of the police for the wrongful arrest and
detention, the question remaining whether there was culpable and unlawful
conduct on the part of the police, this being a factual and legal cause of the
post-hearing detention.
50. There is no case made out, it must be recognized, that the police failed to
disclose all relevant facts to the prosecutor, he having the statements and
docket, just as they did. Indeed, the prosecutor Mavakala’s evidence was that
he had re ceived the docket on first appearance which he read containing
complainant’s statement, making a determination that there was a case against
respondent.
51. The evidence discloses, however, that there was nothing in the docket that
indicated the possible guilt on the part of the respondent, objectively construed.
52. On the evidence, it seems to me that the court was not a reception court as in
De Klerk, nor wa s anything hidden from the prosecutor, the prosecutor having
all the information that was at that stage available to the police, and was able to
analyze same to reach an independent decision. The fact that the police
participated in the bail refusal does not, of its own, render first defendant, in the
circumstances, similarly liable for an unlawful further detention.
53. In my view, the court a quo erred in finding thus that first defendant liable for
the continued detention, clearly had the prosecutor Mava kala applied his mind
to the docket and to the statements, it would have been more than clear, that
there was no evidence, of the standard required, and upon the test to be
applied, binding plaintiff to the crime of which he had been charged.
54. Mavakala’s suggestion that respondent had acted in common purpose with
Beyi, finds no merit on the facts that were before him. Indeed in his evidence,
he was unable to point to anything in the docket that indicated possible guilt on
the part of the respondent nor t o any logical process that he had undertaken,
from which he could, by drawing inferences, have formed the view that there
was any basis at all for believing that respondent had been involved in the
kidnapping and rape.
55. The appeal in this respect on behal f of the first appellant must succeed, but not
that of the second appellant. There was simply no basis upon which the
prosecution ought to have proceeded on the appropriate test to be applied. Not
only was the original arrest unlawful but on the docket t here was no basis
whatsoever, on an objective consideration, that plaintiff was probably guilty of
the offence. Put differently, there was no evidence that would have caused a
reasonable prosecutor to commence, let alone continue the prosecution against
plaintiff.
Analysis: Malicious prosecution
56. On the facts, and against the legal position the only relevant enquiry is as to
whether second defendants acted without reasonable and probable cause and
if they did, whether this was with malice.
57. There was on the facts, and on the test set out above, n o reasonable and
probable cause established for the prosecution, it being quite another matter as
to whether the prosecutor or prosecutorial team acted with malice.
58. Whilst Mavakala’s evidence was that he had decided, after reading the docket,
that there was a case against plaintiff and Beyi, and that he decided to proceed
against them, he conceded that his decision was not supported by the real facts
available to him and he had told the court during the bail proceedings that his
seniors insisted that he proceed against the plaintiff, which he had resisted.
59. This falls far short of sufficient evidence to establish malice, and on the facts
before me, I can find no basis for such a finding. The evidence failed to
establish that Mavakala, or the prosecutor ial team directed their will to the
prosecution with intent to injure and with consciousness of wrongfulness.
60. In my view, accordingly, the trial court erred in finding second defendant liable
in respect of malicious prosecution, the appeal to succeed in this regard.
61. As will appear hereafter, in any event, the award of damages in respect of
malicious prosecution overlaps substantially with the remaining awards of
damages, and this would have been in any event, a pyrrhic victory.
Quantum as to detention: Claim 2
62. I commence by making it clear that the suggested quantum advanced by
appellants, is entirely unsustainable on the authorities, being awards
completely out of step with those applicable to this type of matter and
accordingly the submissions can safely be ignored out of hand.
63. This does not mean that the appeal against quantum must not be carefully
analyzed and determined.
64. A court of appeal will only interfere with the discretion of a trial Judge in the
determination of an appropriate award if the award is “ palpably excessive or
clearly disproportionate in the circumstances of the case”.22
65. In Minister of Safety and Security v Tyulu23 Bosiele AJA held as follows:
“[26] In the assessment of damages for unlawful arrest and d etention, it is important to
bear in mind that the primary purpose is not to enrich the aggrieved party but to offer
22 Salzman v Holme s 1914 (AD) at 471 at 477; Sandler v Wholesale Cole Supplies Ltd 1941 (AD) 1…; Bee vs
Road Accident Fund 2018 [ZASCA] 52, 2018 (4) SA 366 (SCA) at para [47]
23 2009 (2) SA 282 (SCA) para [26]
him or her some much -needed solatium for his or her injured feelings. It is therefore
crucial that serious attempts be made to ensure that the damages awarded are
commensurate with the injury inflicted. However, our courts should be astute to ensure
that the awards they make for such infractions reflect the importance of the right to
personal liberty and the seriousness with which any arbitra ry deprivation of personal
liberty is viewed in our law. I readily concede that it is impossible to determine an
award of damages for this kind of injuria with any kind of mathematical accuracy.
Although it is always helpful to have regard to awards made i n previous cases to serve
as a guide, such an approach if slavishly followed can prove to be treacherous. The
correct approach is to have regard to all the facts of the particular case and to
determine the quantum of damages on such facts ( Minister of Safe ty and Security v
Seymour 2006 (6) SA 320 (SCA) at 325 para 17; Rudolph and Others v Minister of Safety
and Security and Another 2009 (2) SACR 271 (SCA) (2009 (5) SA 94; [2009] ZASCA 39)
paras 26-29).”
66. In determining the issue of quantum I taken into account a number of other
decision including Mahlangu and Another vs Minister of Police.24
67. Once again, it was worth emphasizing that when a court makes factual findings
and evaluates the evidence an appeal court will invariably be hesitant to
interfere with those factual findings and the evaluation of the evidence, this
extending in to the determination of damages in the context referred to above.
68. Where it comes to the deprivation of liberty th e quantum is always in the
discretion of the trial court, to be exercised fairly and in accordance with what is
equitable, considering the merits of the case itself.25
24 2021 (2) SACR 595 (CC); Mminister of Police vs Nontsele 2025 [1] All SA 44 SCA para [29]; Rahim v Minister
of Home Affairs 2015 (4) SA 433 (SCA).
of Home Affairs 2015 (4) SA 433 (SCA).
25 Masiteng v Minister of Police 944/2023 [2024] ZASCA 165 para [14].
69. As set out in Mahlangu (supra), the awards underscore that the assessment of
damages is not based solely on the duration of the detention but gives overall
weight to the detainee’s treatment and the conditions in which that detainee
was held. Of course, the length of that detention is highly relevant nevertheless
but this is not the sole issue relevant to the quantum of damages.
70. I cannot differ in any way with the learned trial Judge’s assessment of the
conditions which were relevant to the two places where plaintiff was held. His
first detention was two days, the second a period thirty days.
71. In my view, having regard to the period and conditions in which he was held in
the first period of detention the award of R100 000,00 is not so generous as to
the subject to any challenge on appeal, although on the higher side of an
award.
72. It is less so in respect of the R800 000,00 awarded in respect of the second
period, being a sum on the authorities in my view clearly disproportionate in the
circumstances of the case. The starting point is Ramakulakusha v
Commander Vemba National Force 26 where it is set out that the primary
purpose of such an award is not to enrich the aggrieved party but to offer a
solatium for injured feelings. This was confirmed in Mahlangu and Others v
Minister of Police27 and in Minister of Police v Nontsele.28
26 1989 (2) SA 813 (V) at 847B – C and Minister of Safety and Security v Tuylle 2009 (5) SA 85 SCA at [26].
27 2021 (2) SACR 595 (CC).
28 [2025] 1 All SA 44 (SCA) [29].
73. In Mahlangu (supra) the plaintiff was detained for eight months and ten days
and were awarded R550 000,00 and R500 000,00 respectively by the
Constitutional Court.
74. In Rahim v Minister of Home Affairs 29 the court raised the following facts as
relevant: the circumstanc es under which the deprivation of liberty took place;
the conduct of defendant; the nature and duration of this deprivation. See also
Woji v Minister of Home Affairs.30
75. In my view, the award is disproportionate and generous to the extent that
warrants it being reduced to the sum of R500 000,00, having regard to all the
relevant considerations and circumstances.
Quantum: Malicious Prosecution: Claim 3
76. In respect of the malicious prosecution, and as pointed out in the authorities, an
award of whatever sum in respect of the general damages relevant thereto,
would have been in part a duplication (as appears below) and had it been
necessary, the R300 000,00 awarded in that respect would have been reduced
to R50 000,00.
77. If I am incorrect in dismissing this claim I comment on quantum as follows. In
awarding damages for malicious prosecution, it is necessary to be astute not to
duplicate damages in other awards, in the same m atter and or the same facts,
29 2015(4) SA 433 (SCA) at [29]
30 2015 (1) SACR 409 (SCA).
such as unlawful arrest and detention in the same matter as malicious
prosecution.31
78. In Nakana (supra) it was pointed out that the amount to be awarded for
“general damages ” in a claim for malicious prosecution is in the cou rt’s
discretion.32 This is a discretion in the true sense – and can only be overturned
where, on appeal, the court finds that the discretion was not exercised
judicially, was influenced by wrong principle or factual misdirection or was one
which could not reasonably be remade on the relevant facts and principles.33
79. The facts to be considered in awarding general damages in malicious
prosecution include, held Nakana:
79.1. the gravity of the charges;
79.2. the nature of the prosecution;
79.3. the length of time the person was subject to prosecution;
79.4. the absence of reasonable and probable cause in setting the law in
motion;
79.5. the presence of improper motive or malice;
79.6. the deprivation of liberty;
79.7. the status, age and health of the plaintiff;
79.8. the publicity given to the criminal proceedings;
79.9. the absence of a reasonable explanation, or apology, by defendant; 34
and
31 Nakana v Claassens + others [2025] ZASCA (7 May 2025) [26].
32 [21].
33 [21].
34 [22]
79.10. any other relevant factors.
80. In Nakana, the defendant was found liable for unlawful arrest and detention
and in this respect, eventu ally on appeal, was awarded R400 000,00.
Defendant was also found liable for malicious prosecution and awarded
damages, on appeal, by a Full Bench of R250 000,0 as general damages
therefor. On further appeal this was reduced to R80 000,00, the appeal cou rt
finding that the court below had partly duplicated the general damages award
for wrongful arrest and detention, as the R250 000,00 award had taken the
same facts into account relevant to the circumstances of the three days of
detention. In doing so it had awarded an additional amount on the same facts,
particularly in respect of the conditions of the cells in which plaintiff had been
held, and thus reduced the award from R250 000,00 to R80 000,00.
81. The original sum of R250 000,00 had taken into accoun t the acrimonious
relationship between the parties; that defendant was an ex policeman; had
previously laid further charges; had abused his power as an ex police officer;
and that the arrest was accompanied by malice and revenge; and finally that
plaintiff had spent three days in the cells under horrible conditions. (This latter
aspect being the cause of the damages duplication requiring a reduction from
R250 000,00 to R80 000,00.)
82. In the end the issue is simply that in awarding damages for malicious
prosecution the facts must be carefully considered and the award must not
duplicate other claims and awards of damages arising from the same facts.
83. In this matter it is not entirely clear how the R300 000,00 damages for malicious
prosecution was comprised. The various factors to be taken into account must
be weighed, considered and analysed to be sure that there is no duplication.
84. The principle iss ues, in considering damages for malicious prosecution in this
matter, had this been relevant, and successful are:
84.1. the gravity of the charges;
84.2. the length of the prosecution;
84.3. the absence of reasonable and probable cause;
84.4. the issue of improper motive;
84.5. the lack of apology.
85. In my view the remaining issues including the detention and length thereof in
poor conditions were already fully compensated in the award for unlawful
detention, and I would have awarded only R50 000,00 for malicious prosecution
had this b een necessary in the event of liability therefor being established –
which in my view it was not.
Costs
86. The costs in this matter must, in each instance, and in all respects follow the
result in respect of all the orders save for Claim 2.2 in the appeal.
87. In this regard having regard to the parties success as to quantum in respect of
second defendant an order that each party pays their owns costs is just and
equitable.
88. The scale of costs in this appeal is Scale C, the costs of one counsel being
allowed. There is no order as to the scale of costs relevant to the order of the
court a quo, thus scale A, the court a quo not making such an order.
Order
89. In the result the order is as follows
1. The appeal against claim 1 is dismissed with costs.
2. The appeal against claim 2:
2.1 In respect of first defendant’s liability the appeal is upheld with costs,
the order a quo being set aside;
2.2 In respect of second defendant, the appeal against liability is
dismissed, but the appeal is successful to the extent of red ucing the
quantum of the award against second defendant to R500 000,00.
Each party to pay their own costs of the appeal (in respect of
Claim 2).
3. The appeal against Claim 3, in respect of second defendant, as to the
finding of malicious prosecution, is up held with costs, the order of the
court a quo as to liability and quantum being set aside.
4. The costs award on appeal are to be on Scale C.
5. The judgment of the court a quo is set aside and replaced with the
following:
“1. In respect of Claim 1 plaintiff suc ceeds as against first
defendant who is liable to pay plaintiff R100 000,00 for unlawful
arrest and detention with costs.
2.1 In respect of Claim 2 plaintiff succeeds against second
defendant who is liable to pay to plaintiff R500 000,00 for his
further detention with costs.
2.2 The claim against first defendant is dismissed with costs.
3. In respect of Claim 3 this is dismissed against both defendants
with costs.
4. The successful awards above are to carry interest a tempora
morae at the prescribed legal rate from judgment date to date
of payment.”
6. The costs of the application for leave to appeal in this court, and in the
Supreme Court of Appeal, are costs in the appeal as ordered in the
Supreme Court of Appeal giving leave to appeal.
______________________
M. J. LOWE
JUDGE OF THE HIGH COURT
I agree,
________________
N. GQAMANA
JUDGE OF THE HIGH COURT
I agree,
____________________
V. NONCEMBU
JUDGE OF THE HIGH COURT
Appearing on behalf of the Appellant: Adv. Dala S.C. instructed by
the State Attorney’s Office,
Gqerberha c/o Whitesides
attorneys, Makhanda.
Appearing on behalf of the Respondent: Adv. Mashiyi and Adv.
Cetywayo instructed by
Yokwana Attorneys,
Makhanda.
Date heard: 28 July 2025
Date delivered: 16 September 2025