Introduction
[1] The plaintiff, Mr Joseph B Dube, instituted seven claims against the Minister of
police and the NDPP as second defendant, however he subsequently withdrew
his claim against the second defendant as its prosecutors did nothing wrong.
In May 2024, three of his claims to the value of R200 000 were settled and his
claim D for further detention, from 31 November 2017 to 26 March 2019
(R1 500 000) and a claim E for malicious prosecution (R300 000) was by
agreement postponed sine die.
[2] He seeks a judgment against the first defendant , by default, after the first
defendant failed to comply with an order compelling further particulars for trial,
its defence was struck. Furthermore, interest is sought from service of
summons on 14 September 2020 , and party party costs on scale B , including
the reserved costs for the default judgment application and for a hearing on 13
August 2024, when the matter was postponed by Windell J.
[3] Advocate L Kalase appeared on behalf of the first defendant and reminded the
court that albeit his client’s defense is struck, his client continues to enjoy a right
to be heard, and it must be permitted to continue to test the plaintiff’s version.
I agree that the striking out of a defence , cannot deprive the defendant of its
constitutional right to fair trial. The matter proceeded on the understanding that
the defendant had no version to put to the plaintiff but sought to test his version
for the court to be fully apprised of the circumstances of the plaintiff’s further
detention and the proof of his claims D and E.
[4] This court was to determine his claims for further detention from 31 October
2017 until his release on 26 March 2019 after the stated decided it had
insufficient evidence to proceed with its prosecution.
The Evidence
[5] On 30 October 2017 upon his arrival at his workplace the plaintiff was arrested
on suspicion of theft of guns from his place of employment. He was employed
as a supervisor in a private security company and claimed that he was
unlawfully arrested. A part of his claim was settled at a n earlier hearing.
Advocate Kalase, counsel for the Minister of Police , the first defendant,
submitted that he was lawfully arrested on a reasonable suspicion, after the
police were informed by his co-workers that he knew of the theft of guns. This
the plaintiff conceded, during cross examination.
[6] In his evidence in chief the plaintiff emphatically denied any knowledge of the
theft at his workplace . He maintained that he knew nothing of the theft, he
ought never to have been arrested nor taken into custody, he claimed h is
continued custody, was malicious.
[7] According to counsel for the Minister , his coworkers, who were arrested with
him on the day informed the police that he knew where the guns were , it was
argued that the police held a reasonable suspicion and therefore acted lawfully
when they arrested him and placed him in custody with the others.
[8] During cross examination the plaintiff denied that the magistrate informed him
about his right to bail on 31 August 2017 the day after he was arrested. He
testified that he said nothing on the day. However, he conceded that he learnt
of his right to bail only later that day when he met an attorney in the holding
cells, but he could not afford his services and therefor could not apply for bail.
His evidence is that he had no money on him whilst in prison, the police had
taken his money on the date he was arrested. After his arrest he was taken to
the Alexandra Police station and questioned, and h e testified that he was
brutally assaulted and forced to speak. His evidence is that the assault was so
brutal that he thought if he told the police he could lead them to the buyer’s
home , the torture would cease. Therefore, he signed a statement which the
police prepared, he maintained he was forced to sign it. He was taken to court
on the next day, he testified that the judicial officer did not tell him anything
about his right to bail, he only learnt of his right later that day when he met a
private lawyer, who told him about bail and that he charged R10 000. He
declined the service as he did not have the money. During cross examination
he testified that even if he had the money he would not have applied for bail,
because he wanted his day in court to prove his innocence. He was deta ined
at the Johannesburg prison “sun city” for the period 3 November 2017 until 26
March 2019, when the matter was remanded on several occasions, without any
explanation on his continued detention.
[9] Counsel for the defendant put it to him that he was misleading the court as the
procedures followed was recorded by the magistrate in the court file and it was
recorded that all accused together, were informed of their right to bail.
[10] The plaintiff insisted that the judicial officer had never informed his of his right
to bail and he would not have applied in any event. Mr Kalase put is to him that
he “preferred to remain in prison” to prove his innocence at his trial. Counsel
submitted that the contents of the court file, admitted as exhibit A, is common
cause. The file does not include any not es of an opposed bail application, he
submitted that the plaintiff chose to remain in prison to have his day in court ,
and that he cannot justify his claim D, he remained there of his own volition.
[11] The plaintiff testified that he was so poorly treated and tortured whilst at the
Johannesburg prison, he had to purchase a mattress to sleep on, he had no
money, and his sister had sent him some money. He testified that the matter
was remanded over months, that he had missed the birth of his 5 th child, he
saw her only after her first birthday, he was forced to sell his car because he
was in prison for such a long time, he needed to support this family.
[12] He appeared in court several times and each time he was told the matter was
postponed for further investigations. He was kept at the Johannesburg prison,
sun city a ll the while and suffered serious humiliation at the instance of other
prisoners. He testified that whilst there he awaited the arrival of an attorney
from legal aid, but he failed to arrive. All the while h is matter was remanded
and he was not given any reasons for his continued imprisonment.
[13] He testified that he is South African but on the charge sheet he is noted as
Zimbabwean. The police did nothing to verify his identity, and the confession
was the only way the first defendant could link him to the crime. The plaintiff
testified that since his arrest, his community views him as a criminal, after his
long absence from home. He remained in custody until charges were
withdrawn 26 March 2019. He testified that as a result of this unlawful
detention, he lost his job, and has had trouble securing one since, he is unable
to support his family.
[14] In cross examination he conceded that he was arrested based on information
given to the police by his co-workers and not only on the content of his
confession.
confession.
[15] Counsel for the defendant argued that that it is reasonable to draw the inference
that the plaintiff had aligned himself with the circumstances of his arrest, the
conditions in prison which he chose to endure until the date of his trial when he
would prove his innocence. The evidence is that he spent 480 days in custody,
when the charges were withdrawn. Advocate van Rooyen for the plaintiff,
submitted that the defendant is incorrect in placing the onus on the plaintiff, to
have applied for bail and argued that his failure to apply for bail must not be
viewed as wilful, to deny him damages, he suffered at the hands of the police .
He argued that plaintiff had no money and did not know of his rights.
Furthermore, he submitted that the plaintiff’s failure to apply for bail is not an
intervening act breaking the chain of causation , his failure to apply for bail
cannot be a valid defence for the state.
[16] In JE Mahlangu and Another v Minister of Police1, the Constitutional Court,
after a consideration of a long line of cases was clear that:
“ the police, like any other state functionary … are constrained by the principle
of legality imposed by the Const itution and may not exercise any power nor
perform any function beyond that conferred upon them by the law. That is the
basic com ponent of the rule of law and one of the founding values of our
Constitution.
[17] The court continued,
“our Constitution recognises the aspects are important in a democracy: th e
state may not deprive its citizens of liberty for reasons that are not acceptable,
nor, when it deprives its citizens of freedom for acceptable reasons, may it do
so in a manner which is procedurally unfair.”
[18] Later in the judgment, the court confirmed
“the onus to justify the lawfulness of the detention rests on the defendant and
the burden of proof shifts to the defendant on the basis of the provisions of s12
1 (CCT88/20) [2021] ZACC 10; 2021 (7) BCLR 698 (CC) 2021(2) SACR 595 (CC) (14 May 2021)
(1) of the Constitution. … the defendant is …to establish before detaining the
person, the justification and lawfulness of such arrest and detention.”
[19] It was common cause that the plaintiff was arrested on information obtained
initially from his co-workers, they threatened him if he cooperated with the state.
The further evidence is that he was desperate to end his traumatic time in
prison, and risked implicating himself, when he signed a confession. It was not
disputed that the document he signed was presented to him by his captors, they
knew they had no other evidence which they could rely on, they ought to have
informed the prosecutor of their weak case way back when they drafted the
confession.
[20] It is clear to me that the police failed and in fact refused to investigate his many
protestations of his involvement in the theft. To my mind the police may well
have exacerbated his case when they recorded him as a national of Zimbabwe,
when in fact he is South African. The investigating office is obliged to inform a
prosecutor of all details regarding progress in his/her work . H e/she is the
person on the ground, interfacing directly with the public and events on the
ground. The police fail dismally at appreciating the import and impact of their
employment as peace officers. Our history must serve as our reminder on what
can never be acceptable to our people , this cycle of disrespect for humanity
must stop. The plaintiff was taken into “custody” he is entitled to respect for
his dignity, and the police are always accountable for him, whilst he is in their
custody.
[21] Counsel for the minister contended that liability cannot be imputed to the
defendant where there was direct evidence by the plaintiff during cross
examination that “even if he had the money he would not have applied for bail.
The plaintiff remained in custody by his choice, and this must constitute a break
in the chain of causation. Mr Kalase argued that the plaintiff failed in his
evidence in chief to demonstrate that his continued detention was due to the
false confession, he testified he chose to await his trial to prove his innocence.
Mr Kalase argued that the confession was secondary evidence and further that
if the court found that the plaintiff was held in custody at the instance of the first
defendant, it would effectively constitute an unlimited imputation of lia bility,
against the established principles in the Mashongwa judgment 2. Counsel
argued that the issue of a just cause for the later deprivation of liberty is not a
relevant consideration in casu, given that the plaintiff chose not to apply for bail,
and to remain in prison, until his trial date.
[22] In Mahlangu, supra, the Constitutional court held that the plaintiff’s failure to
apply for bail is not an intervening act, breaking the chain of causation. I agree
with counsel for the plaintiff who argued that the conduct of the police and
investigating officer, led to the continued deprivation of his liberty. The plaintiff
whilst incarcerated, was on the “backfoot”, he left home one morning to earn a
living to support his family and never returned for over a year. Nothing positive
happened for him despite his numerous efforts to persuade the investigating
officer of his innocence, throughout his stay in prison.
[23] The police were wrong even with his nationality , which in our times in our
country is a grave error for many of our people. In De Klerk v Minister of Police3,
the court stated “ what matters is that there was a just cause for the later
deprivation of liberty. In determining whether the deprivation of liberty pursuant
2 2015 ZACC 36, 2016 (3) SA 528 (CC)
3 (CCT 95/18) [2018] ZACC 32;2019 (12) BCLR 1425 (CC), 2020 (1) (CC) (22 August 2019) par 62
to a remand order is lawful, regard can be had to the manner in which the
remand order was made.” No just cause for his continued detention was before
me. It is probable that the mix up with his identity could have led to the longer
time in detention.
[24] There is no evidence before this court on whether the police and the prosecutor
applied their minds regarding the reasons for the plaintiff’s continued detention
having granted his co accused bail without any opposition. I agree with counsel
that had the prosecutor known of the circumstances in which the confession
was made and the mix up with his identity, the prosecutor would probably never
have enrolled the matter. Instead, the matter was remanded several times for
further investigations and the plaintiff testified that he was never told why he
was still in custody. “Where there are no facts which justify the further detention
of a person, this should be place d by the investigator before the prosecutor of
the case and the law casts an obligation on the police official to do so .”4 In my
view his continued detention was unlawful and the first defendant is liable to
compensate him for depriving him of his liberty any further without any just
cause.
Malicious Prosecution
[25] It was common cause that the first defendant arrested and detained the plaintiff
on the information the police obtained from the plaintiff’s co accused, and
therefore the police held a reasonable belief that the plaintiff knew of the theft
of the guns. There was no evidence before me that the first defendant was
malicious when it arrested and detained the plaintiff , but then , this court has
also not had the benefit of cross examination of the first defendant’s witnesses,
4 Mahlangu supra, Botha v Minister of Safety and Security 2012 (1) SACR, 305 (EPC) at [29-30]
none were led, the first defendant failed to comply with an order of court and
risked a default judgment, it proceeded without a version, a risk it must bear.
[26] In Minister of Justice and Safety and Security NO v Schubach 5, the court
confirmed that a plaintiff in a claim for malicious prosecution must allege and
prove that the NDPP set the law in motion and instituted the proceedings, that
it acted without reasonable and probable cause, that it acted with malice or with
the intention to injure the plaintiff (animus iniuriandi) and that the prosecution
failed. The plaintiff conceded that the police were informed by his co workers
and that they acted on their information, in terms if which his co-workers were
also arrested and detained. In my view the first defendant acted with
reasonable and probable cause , the charges were for aggravated robbery, a
schedule 6 offence, the plaintiff conceded that the first defendant had a prima
facie case at his arrest , and therefore it can be found that the first defendant
did not act with malice, in his continued detention. In my view the plaintiff failed
to adduce sufficient evidence for a claim for malicious prosecution, and on his
own version, this claim must fail. There was no evidence led that there was
deliberate intention to harm him or injure him , Mr van Rooyen in heads of
argument contended that the prosecutor laboured under the belief that there
was evidence to prosecute the plaintiff, the first defendant withheld the
evidence. This fact is speculative and unreliable.
Quantum
[27] In casu the plaintiff was compensated for his initial arrest and detention, and in
assessing his damages in regard to his continued detention, the court must
5 2914 ZASCA 216
consider, the circumstances under which he was further detained, the duration
of his deprivation of liberty, the presence or absence of malice and whether the
first defendant offers a reasonable explanation for the continued detention. The
defendant failed to present this court with a reasonable explanation for his
continued detention and Mr Kalase made of meal of his concession that he
would not have applied for bail even if he could afford the money. In my view
the witness under cross examination, was somewhat argumentative, but he
was also still in pain about his treatment by the police, more so because they
failed to secure evidence against him. For several months he had tried to
convey his innocence and was ignored. His behaviour is understandable in the
circumstances. He may not have anticipated a long wait for a trial or no trial at
all and the period of his custody simply passed by which resulted in 480 days
in detention. I cannot think that anyone who faces such oppressive and
torturous conditions, as was the plaintiff’s testimony, which remains
unchallenged, would have preferred to await a trial date if he knew it would take
as long as it did, for the first defendant to simply withdraw charges. The first
defendant could have properly assessed the strength of its case much earlier.
[28] The evidence is that the long period in detention, was at great personal cost to
the plaintiff as mentioned earlier in this judgment, he must be fairly
compensated. Mr van Rooyen referred the court to similar cases . Having
regard to the conspectus of the evidence , I am of the view the plaintiff was
further unlawfully deprived of his liberty, by members of the first defendant who
failed to respect is rights to liberty and have any regard for his continued
detention. The first defendant is liable to compe nsate him for his further
detention. The award of compensation must be fair to both parties. I am of the
Date of Hearing: 29/07/2025
Date of Delivery: 27/10/2025
Appearances:
For Plaintiff: Adv van Rooyen
Instructed by: Ndebele Attorneys
Email: thembi@nndebeleinc.co.za
For 1st Defendant Adv Kalase
Instructed by: State Attorney
Johannesburg