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
Order
The application for leave to appeal in relation to each of the plaintiffs is
dismissed, with costs, including counsel’s fees taxed on Scale B.
JUDGMENT DELIVERED ON 21 OCTOBER 2025
in application for leave to appeal
VAN ZYL AJ:
Introduction
1. The plaintiffs have applied for leave to appeal against the orders of
absolution from the instance granted at the end of their respective cases
on 18 June 2025. The essence of their application is that the Court erred
and misdirected itself in law by entertaining the defendants’ application
for absolution because, first, t he defendants had the onus to lead
evidence which justifies the lawfulness of the arrest, detention and
prosecution, and, second, t he defendants had not adduced evidence
justifying the arrest, detention and prosecution.
2. The application is expressly brought under the provisions of section
17(1)(a)(i)1 of the Superior Courts Act 10 of 2013, namely that their
appeal would have a reasonable prospect of success. 2 In argument,
however, the plaintiffs’ attorney r elied on section 17(1)(a)(ii) too, namely
that there are compelling reasons why the appeal should be heard:
“In order to be granted leave to appeal in terms of s 17(1)(a)(i) and s
1 “17(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration; …”
2 See Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (2) SA 451 (SCA)
para 34; Ramakatsa and others v African National Congress and another [2021]
ZASCA 31 (31 March 2021) para 10.
17(1)(a)(ii) of the Superior Courts Act an applicant for leave must satisfy the
court that the appeal would have a reasonable prospect of success or that there
is some other compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still enquire into whether there
is a compelling reason to entertain the appeal. A compelling reason includes an
important question of law or a discreet issue of public importance that will have
an effect on future disputes. But here too, the merits remain vitally important
and are often decisive. Caratco must satisfy this court that it has met this
threshold.”3
3. In oral argument, the parties concentrated on two aspects, one in relation
to the plaintiffs’ arrests and detention, and the other in relation to their
alleged malicious prosecution.
The arrests and detention
4. The first complaint is that the Court erred in holding that the plaintiffs had
an onus to prove that SAPS exercised their discretion properly in relation
to the reasonable and probable cause underlying their arrests.
5. As indicated in the judgment, 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 . The plaintiffs argued, however,
that the ir reliance on the unlawfulness of the arrests on the basis that
they had been effected without a warrant was implied . This was
especially so as the defendants pleaded, in response to the allegations in
the particulars of claim, that the arrests had been effected without
warrants. The defendants thus (so the argument goes) attracted the onus
of proving that the arrests were lawful , and the court was not at liberty to
grant absolution at the end of the plaintiffs’ cases where the onus rested
3 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2 (my
emphasis).
on the defendants.4
6. It is neces sary to set out the relevant portions of the pleadings. Mr
Zeleni pleaded the following in his particulars of claim:
“5. On the 20 October 2017 at approximately 04h20 and at or near
Airport Industria, Plaintiff was wrongfully and unlawfully arrested,
assaulted and later detained at Site B police station by the
members of the South African police services, …
…
15. At the time of the arrest, assault and detention, the SAPS
members knew, alternatively ought to have known, that no
reasonable gr ounds existed for the arrest, assault and
subsequent detention of the Plaintiff, and that the arrest, assault
and subsequent detention were effected animo injuriandi,
alternatively without due care to Plaintiff’s right to liberty.
…
19. There was no reasonable and/or probable cause in law justifying
Plaintiff’s arrest, assault and detention, accordingly his arrest,
assault and detention were unlawful.”
7. The defendants pleaded, in response, as follows:
“Ad paragraph 5
10. Save to admit that the plaintiff was arrested on 20 October 2017,
the remaining allegations are denied.
11. In amplification of the aforesaid denial, defendant pleads that
plaintiff was lawfully arrested … by a member of the South
African Police Service … in accordance with sect ion 40(1)(b) of
the Criminal Procedure Act 51 of 1977 .., since the plaintiff was
suspected of having committed the offences of murder and rape.
…
4 Sentraalwes Personeel Ondernemings (Edms) Bpk v Nieuwoudt 1979 (2) SA 537 (C) at
546B.
Ad paragraph 15
21. The contents are denied.
21A. In amplification of the said denial, the first defendant pleads that
the members of SAPS had reasonable grounds for believing that
the plaintiff was a suspect in the commission of the offence
relating to the murder and rape of the deceased based on the
following:
21A.1 The investigating officer had received information from a
reliable source, one Masixole Scott, linking the plaintiff to
the house of Luthando Mposelwa (Mposelwa) where the
deceased was last seen alive.
21A.2 The plaintiff was pointed out by M poselwa as a person
who was at the house where the alleged activities leading
to the deceased’s death occurred.
…
Ad paragraphs 19 and 20
25. Save to admit that the criminal proceedings were instigated by
the prosecutors, the rest of the allegations in t his paragraph (sic)
are denied.
26. In amplification of the denial, defendants aver that:
26.1 Plaintiff’s arrest and detention were lawful.
… ”
8. Mr Mposelwa pleaded, insofar as is relevant, as follows:
“5. On the 20 October 2017 at approximately 01h40 and at or near
Samora Machel, Plaintiff was wrongfully and unlawfully arrested,
assaulted and later detained at Site B police station by the
members of the South African police services, …
…
15. At the time of the arrest, assault and detention, the SAPS
members knew, alternatively ought to have known, that no
reasonable grounds existed for the arrest, assault and
subsequent detention of the Plaintiff, and that the arrest, assault
and subsequent detention were effected animo injuriandi,
alternatively without due care to Plaintiff’s right to liberty.
…
18. There was no reasonable and/or probable cause in law justifying
Plaintiff’s arrest, assault and detention, accordingly his arrest,
assault and detention were unlawful.”
9. In relation to Mr Mposelwa ’s allegations , the defendant s pleaded the
following:
“Ad paragraph 5
10. Save to admit that the plaintiff was arrested on 20 October 2017,
the remaining allegations are denied.
11. In amplification of the aforesaid denial, first defendant pleads
that plaintiff was lawfully arrested … by a member of the South
African Police Service, in accordance with section 40(1)(b) of the
Criminal Procedure Act 51 of 1977 .., since plaintiff was
suspected of having committed the offences of murder and rape.
…
Ad paragraph 15
23. The allegations are denied.
…
Ad paragraph 18
26. the allegations are denied. In amplification hereof, defendants
aver that plaintiff was lawfully arrested and at all relevant times
was lawfully detained.”
10. Considering these pleadings, I do not agree with the plaintiffs’ argument
to the effect that the defendants’ plea in each of the matters changed
the ambit of the plaintiffs’ cases as far as the onus was concerned. It is
clear on the plaintiffs’ pleadings that they squarely relied on the
absence of reasonable cause, and this was confirmed by their counsel
in his opening address. The plaintiffs’ pleadings were never amended
to widen the net of the particular – expressly pleaded - aspect of alleged
unlawfulness on which they relied.
11. The case that the defendants had to meet was therefore not one of
justifying the arrest without a warrant under section 40(1)(b) (in respect
of which they would have had the onus), but it was one founded on the
reasonableness of the discretion exercised unde r section 40(1)(b). As
indicated in this Court’s main judgment, in Duncan v Minister of Law
and Order 5 the jurisdictional facts that must be present before SAPS
may invoke section 40(1)(b) are set out as follows:
"The so -called jurisdictional facts whic h 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.”
12. On the plaintiffs’ own evidence within the factual context of the case, I
found these jurisdictional facts to have been established. Minister of Law
and Order and another v Dempsey, 6 in turn, held in relation to the
suspicion that:
"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
5 1986 (2) SA 805 (A) at 818G-H.
6 1988 (3) SA 19 (A) at 38G (emphasis supplied).
whether it was properly formed."
13. In Minister of Safety and Security v Sekhoto and another7 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 discretio n under Section
40(1)(b)."8
14. It was for these reasons that I emphasised in the main judgment 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 pr obable grounds for the arrests. As such, they had (on the
authority of cases like Dempsey, Sekhoto, and Mabona) to prove that the
suspicion on which the police acted in arresting them had been
improperly formed.
15. The plaintiffs failed to adduce any evid ence to show that the members of
SAPS exercised their discretion wrongly. Instead, the plaintiffs gave
evidence which contradicted their pleaded case and their opening
address to the effect that police acted solely on the information of
unknown source who never made a statement. On the evidence placed
before the Court, Mr Mposelwa knew he was linked by further evidence
in the form of the hair piece found at his house linking the scene to the
deceased. Mr Zeleni was pointed out by two witnesses, being Mr
Mposelwa and one Scott. Scott gave a statement stating that the
plaintiffs were the last persons to have been with the deceased prior to
her death.
16. Thus, the allegation that SAPS acted solely on information from the
7 2011 (5) SA 367 (SCA) para 46, and see the discussion at paras 48 -50 (emphasis
supplied).
8 See also Mabona and another v Minister of Law and Order 1988 (2) SA 654 (SE) at
658H.
unknown source to arrest Mr Mposelwa was incorrect. Furthermore, the
allegation that Mr Zeleni was pointed out by Mr Mposelwa because of
pressure from the alleged assault on the day of arrest was incorrect. Mr
Zeleni had been pointed out by Scott as we ll, even prior to being pointed
out by Mr Mposelwa. The plaintiffs were detained subsequent to their first
court appearance because they had abandoned their bail applications of
their own volition.
Malicious prosecution
17. The plaintiffs bore the onus of proving the jurisdictional requirements for
a successful claim based on malicious prosecution. In Minister of
Justice and Constitutional Development and others v Moleko, 9 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….”
18. As regards the fourth requirement, t he plaintiffs’ attorney strenuously
argued that, as the matter had never been reinstated, the prosecution
should have been regarded as having failed. He referred to L.N v
Minister of Police and another in this regard10
“[36] It is not in dispute that the plaintiff’s charges were withdrawn on the
26th of July 2021, almost four years ago. The plaintiff testified that he has
not appeared in court agai n since the charges were withdrawn in July
9 2009 (2) SACR 585 (SCA) para 8.
10 [2025] ZAGPJHC 710 (22 July 2025) paras 36-37:
2021 and has never been contacted to come and appear in court. The
plaintiff submits that the charged sheet depicting the plaintiff’s withdrawal
of charges with a stamp date 26 July 2021 as well as an entry of
“withdrawal” towards the bottom of the charge sheet, is a document that
was discovered by the defendants.
[37] I agree with the plaintiff that he has satisfied this requirement.”
19. The plaintiffs argued, therefore, that I was wrong in holding the contrary.
20. In LN, the charges against the plaintiff had been withdrawn. In the
present case, the matter was merely struck from the roll. I am bound by
the decision of this Court in Nogwebele v Minister of Police:11.
“…. I agree with the submission of the Second Defendant that the
Plaintiff must prove that the criminal proceedings were terminated in his
favour. What happened in this matter is that the criminal proceedings
against the Plaintiff were temporarily terminated. It was not settled by
an acquittal or a withdrawal thereof on the merits. It was always the
intention to institute the proceedings against the Plaintiff. …”
21. As indicated in the main judgment, however, if I am wrong in relation to
this aspect, then I did not consider the plaintiffs to have overcome two
further requirements for a successful claim based on malicious
prosecution, namely that the prosecution had been instigated without
reasonable and probable cause, and that the prosecuto r acted animo
iniuriandi.
22. On the evidence, the hair piece linked to the deceased and found at Mr
Mposelwa’s house constitute d a probable cause for the prosecution.
The pointing out of Mr Zeleni by Mr Mposelwa and Scott constitutes
probable cause for the charges to be preferred against them. Thus, the
plaintiffs’ allegation that the charges were preferred on them based
11 2016 (2) SACR 662 (WCC) para 84.
solely on the information from an unknown source was incorrect.
23. The lower court’s records reflected what had occurred on each
appearance. There was no evidence of malice on the part of the
prosecutor. On the plaintiffs’ own evidence, they were made aware by
the magistrate on the last court day that the striking of the matter from
the roll was not the end of the matter.
24. In light of the above, this Court could not find in the plaintiffs’ favour on
all of the elements of malicious prosecution.
Conclusion
25. 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.
26. The plaintiff s have not raised an y issue to satisfy this Court that the
requirements of section 17(1)(a)(i) and (ii) of the Superior Courts Act
have been met in relation to either reasonable prospects of success on
appeal, or other compelling reasons why the appeal should be heard.
As indicated, the plaintiffs did not in their notice of application for leave
to appeal rely on section 17(1)(ii) but, in any event , the jurisprudence
in relation to claims for wrongful arrest and detention is settled, with
reference to Duncan, Dempsey, Sekhoto and Mabona. In terms of
these authorities, whe re the defendants acted within the confines of
section 40(1)(b) of the CPA, the onus is on the plaintiffs in relation to
whether the discretion was exercised wrongly.
Order
27. The application for leave to appeal in relation to each of the plaintiffs is
therefore dismissed, with costs, including counsel’s12 fees on Scale B.
P. S. VAN ZYL
Acting Judge of the High
Court
Appearances:
For the plaintiffs: Mr K. Lingani , instructed by Lin gani &
Partners Inc.
For the defendants: Mr M. Titus, instructed by the State
Attorney
12 “Counsel” in the context of Rule 67A means any legal practitioner, whether a referral
advocate, a trust account advocate, or an attorney with higher appearance rights, who
actually does the work of counsel.