IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - MTHATHA)
CASE NO: 295/2024
In the matter between:
DYAMLUTI GOQWENI APPLICANT
And
MINISTER OF POLICE RESPONDENT
JUDGMENT
Nkele AJ:
INTRODUCTION:
[1] The plaintiff instituted action proceedings against the defendant for unlawful
arrest and detention, as well as malicious prosecution in the amount of R
825 000.00. An appearance to defend was entered on the 11 th of September
2024 and a plea subsequently filed on the 21 st of November 2024. Upon
realising that the plea is a bare denial, the pla intiff approached the court by
way of an application to have it set aside as irregular.
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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[2] On the 11 th of March 2025 the court set aside the defendant’s plea as
irregular and non -compliant with the provisions of Rules 18(4) and (18(5) of
the Uniforms Rul es of Court. In the same Court order the defendant was
granted leave to amend the plea within 30 (thirty) days.
[3] Despite the court order directing the defendant to amend the plea within 30
(thirty) days from the date of the order, the defendant failed t o so amend the
plea and as a result the plaintiff set the matter down for default judgment on
the 17th of September 2025 and the defendant was notified accordingly.
PLAINTIFF’S EVIDENCE
[4] The plaintiff testified that on the 17 th of August 2023 he was pr eparing for a
traditional ceremony and was in a forest to get things needed for that
ceremony, when he was telephoned by a policeman who advised him that he
is in his homestead, waiting for him. That was about 15h00 in afternoon.
When he enquired as to wha t they want the policeman replied that they want
him and he then advised them to wait for him.
[5] On his arrival he saw a white double cab bakkie (van) parked next to his
homestead and he went straight to it and greeted the three police who were
inside it. There was one policewoman and two young men. He thereafter
asked them what the problem was, and they told him that they have come to
arrest him for having raped A[...], who was her stepdaughter. The plaintiff
testified that he was very surprised to hear this and even asked them when
did that happen because A[...] left the homestead about seven years ago
when she was ten years old and had never seen her since then. The police
never answered him.
[6] Thereafter, plaintiff further testified, he advis ed the police that he was to start
a traditional ceremony that very same afternoon and for that reason he
requested that he be allowed to proceed with it and thereafter present himself
the following Monday. The police refused to yield to that request and o rdered
the following Monday. The police refused to yield to that request and o rdered
himself to be ready to go with them. He then called her sister to hear for
herself what was happening who, after hearing that her brother was about to
be arrested, cried and left.
[7] He then went to the young men who were near the kraal and gave them the
permission to proceed with the ceremony even in his absence. Thereafter he
got inside his house to prepare himself to be arrested. While still inside the
house the police came to fetch him, advising him that it was getting late. At
that time there were people in his homestead, other than the young men who
were near kraal, who had come to help with the preparations for the
ceremony. So, the arrest happened in full view of everyone present at his
homestead. The police took him to the Willowvale polic e Station where he
was detained until he appeared in court on the 23rd of August 2023.
THE CONDITION OF THE CELLS AND THE PERIOD OF DETENTION
[8] According to the plaintiff’s testimony, the condition at the holding cells was
horrifying, to say the least. He further testified the blankets were very dirty and
infested with lice which were going up and down his body, such that he had to
continuously scratch himself non -stop. The food composed of half -cooked
porridge and a cold weak tea.
[9] He was detained from the 17th to the 23rd of August 2023. Effectively he spent
a period of four days under arrest and detention of the defendant’s members.
On the 23 rd of August 2023 he was handcuffed and taken to court when he
was kept in the holding cells. When his tu rn came to be called to appear in
court, what happened was that a policeman told him that ‘his ancestors have
told him to go home’ . He therefore went out to meet his family members who
became emotional when they saw his condition. He too lost control of hi mself
and shed some tears.
THE GOVERNING LEGAL PRINCIPLES AND THE EVALUATION OF EVIDENCE
[10] It is trite that a person may only be arrested and detained without a warrant
authorising the arrest only if there is a reasonably suspicion that he committed
an offence referred to in Schedule 1 and in other very limited circumstances
which are prescribed in section 40 of the Criminal Procedure Act (“the Act”)1.
[11] In terms of section 40(1)(b) of the Act a peace officer may without a warrant
arrest any person –whom he reasonably suspects of having committed an
offence referred to in Schedule 1, other th an an offence of escaping from
lawful custody. It is not every suspicion that will suffice to justify a person’s
arrest and detention. The suspicion must be reasonable and the test for such
reasonableness is objective. 2 A lucid explanation of the reasonab leness test
where an arrest has been effected on the basis of suspicion was made in
Mabona and Another v Minister of Law and Order and Others where the court
held that:
“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 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 not
certainty. However, the suspicion must be based upon solid grounds. Otherwise, it
will be flighty or arbitrary, and not a reasonable suspicion”.3
[12] As Rusi J stated in M.J v Minister of Police the decision to arrest entails the
exercise of discretion and it is only after the jurisdictional facts for an arrest
that a discretion arises and even in that instance the peace officer is not
obliged to arrest. The discretion to arrest must be exercised after taking into
obliged to arrest. The discretion to arrest must be exercised after taking into
account all the prevailing circumstances into consideration. 4. Quite recently,
the apex court had this to say about the reasonableness of an arrest without a
warrant “The officer making a warrantless arrest has to comply with the
jurisdictional prerequisites set out in section 40(1) of the CPA. In other words,
one or more of the grounds listed in parag raphs (a) to (q) of that subsection
must be satisfied. If those prerequisites are satisfied, discretion whether or not
1Act no. 51 of 1977
2 M.J v Minister of Police and Another (1191/2022) [2025] ZAECMHC 17 (11 March 2025).
3 1988 (2) SA 654 (SE) at 658G-H.
4 para 51 of the judgment.
to arrest arises. The officer has to collate facts and exercise his discretion on
those facts. The facts may include an investigation of the exculpatory
explanation provided by the accused person”. 5
[13] It also a well -entrenched principle of our law that an arrest or detention is
prima facie unlawful. This was explained in Zealand v Minister of Justice &
Constitutional Development as follows “This is not something new in our law.
It has been firmly established in our common law that every interference with
physical liberty is prima facie unlawful. Thus, once the claimant establishes
that an interference has occurred, the burden falls upon the person causing
that interference to establish a ground of justification”.6
[14] The evidence of the plaintiff, gleaned in its entirety, in my view demonstrates
that the arrest as well as the detention was effected without a warrant. As the
authorities clearly state an arrest and detention effected in such a fashion
was, prima facie, an unlawful deprivation of their liberty. In such
circumstances, once the plaintiff alleges that the arrest and detention was
effected without a warrant, the onus shifts to the defendant to prove the
lawfulness of the arrest and the resultant detention. As the opposition was
explained by the Constitutional Court “It follows that in a claim based on the
interference with the constitutional right not to be deprived of one’s liberty, all
that the plaintiff has to establish is that an interference has occurred. Once
this has been established the deprivation is unlawful and the defendant bears
the onus to prove that there was a justification for interference”.7
[15] As there was no plea filed, the matter was set down for default judgment. So,
there was no version put up by the defendant to justify the arrest and
detention of the plaintiff. In fact, the defendant was given that opportunity and
never utilised it by filing a plea. This so because it was afforded an opportunity
never utilised it by filing a plea. This so because it was afforded an opportunity
to file the plea within 30 days and even the notice of set down for default
judgment was served upon its attorneys of record. The defendant was,
5 Groves NO v Minister of Police [2023] ZACC 36; 2024(1) SACR 286 (CC)B para 52.
6 2008(4) SA 458 (CC) para 25.
7JE Mahlangu and Another v Minister of Police 2021 ZACC 10 para 32.
therefore, well aware that the matter has been set down for def ault judgment.
The effect of it all is that the defendant was nowhere to be found for purposes
of discharging the onus that rests with him, that of justifying the arrest without
a warrant. That therefore leaves me with no other option, in the present
factual matrix, but to come to the inevitable conclusion that both the arrest
and the consequent detention of the plaintiff was an unlawful depravation of
their liberty which was totally unjustified.
[16] As far as malicious prosecution is concerned, it is trite such a claim, for to be
valid and acceptable, the plaintiff has to prove the impairment of his good
name, physical liberty and feelings of dignity. In Rudolph v Minister of Safety
and Security it wa s stated that “…The ‘malice’ must be that of the person
responsible for initiating the prosecution against the appellants. In this case
the appellants were formally charged –with contravening the Gatherings Act -
on Saturday 19 July 2003 by members of the S APS at the Pretoria Moot
Police Station. It would appear that this the stage at which the proceedings
were instituted. Although Captain Bekker’s statement was made only on 18
August 2003, it is safe to assume that the member of SAPS who charged the
appellants did so on the basis of information furnished to him or her by the
arresting officer, viz that there were only eight persons (four adults and four
children) gathered at the scene of the supposed ‘illegal gathering’. By no
stretch of the imagination coul d this ‘demonstration’ be regarded as a
‘gathering’ within the meaning of the Gatherings Act”.8
[17] At para 20 of the judgment the court continued as follows “In this case there
can be no question that the person who charged the appellants was aware of
the fact that, by so doing, would in all probability be ‘injured’ and their dignity
(comprehending also their good name and privacy) in all probability negatively
(comprehending also their good name and privacy) in all probability negatively
affected. Knowing that the ‘gathering’ in question comprised only of eight
persons, the polic e member concerned must at the very least have foreseen
the possibility no offence in terms of the Gatherings Act had been committed
and that, in charging the appellants with a contravention of that Act, he or she
8 2009 (5) SA 94 at para [19].
was acting wrongfully. He or she nevertheless continued to so act, reckless as
to the possible consequences of his or her conduct. In our view, he or she
thus acted animo injuriandi. That being so, the appellants proved the
requirements of malicious prosecution and their claim in this regard shoul d
have succeeded”.9
[18] On the basis of the abundant authority in our law I find that the police
personnel who arrested the plaintiff are members of the SAPS who are solely
responsible for setting the process of law in motion when he arrested and
detained the plaintiff on the 17 th of August 2023. They acted not only
wrongfully but also recklessly as to the possible consequences of his conduct.
I am quite certain that when they arrested and detained the plaintiff, they
either did not have sufficient infor mation at their disposal necessary to
formulate a reasonable suspicion or they failed to properly consider all the
relevant facts before deciding whether to arrest or not. The defendant
therefore cannot, in my view, escape the consequences of their actions. In the
circumstances I find that the plaintiff’s claim for malicious prosecution should
also succeed.
QUANTUM IN RE UNLAWFUL ARREST AND DETENTION CLAIM
[19] It has been proven, on a balance of probabilities, that the plaintiff’s arrest and
detention was indeed an unlawful and unjustifiable deprivation of his liberty.
What now remains is to consider an appropriate compensation for the
unwarranted invasion and deprivation of his liberty. It is common cause that
the plaintiff’s arrest and deten tion lasted approximately for four days, that is
from 17 to 20 August 2023. The plaintiff was a respected member of the
community, an elderly man in his seventies and a traditional healer. I now turn
to consider the authorities that will serve as a guide t o a proper compensation
relating to an unlawful arrest and detention.
9 also, Relyant Trading (Pty) Ltd v Shongwe and Another [2007] 1 All SA 375 (SCA) para 5.
[20] It is trite that in the exercise of judicial balance the courts have been
cautioned not to pour out largesse from the horn of plenty at the defendant’s
expense. In Mahlangu and Ano ther v Minister of Police 10 it was held that
damages are awarded to deter and prevent future infringements of
fundamental rights by the organs of state. They are a gesture of goodwill to
the aggrieved and they do not rectify the wrong that took place. Sim ilarly, in
the Supreme Court of Appeal in Minister of Safety & Security v Tyulu 11
remarked as follows “In the assessment of damages for unlawful arrest and
detention, it is important to bear in mind that the primary purpose is not to
enrich the aggrieved party but to offer 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
inflicted injury”.
[21] According to Reddy J in Khorae v Minister of Police the correct approach is to
have regard to all the facts of the case and to determine the quantum of
damages according to the exigencies of the case. It is therefore a salutary
practice in our judicial culture that previous awards in a claim for damages
should only serve as a guide and should not be followed lavishly.12
[22] Against the backdrop of these trite principles enunciated in the case law, I am
now required to determine an appropriate compensation in the light of the
salient facts that have already been narrated above. In the Khorae case the
North West High Court recently awarded an amount of R 220 000.00 for an
unlawful arrest and detention that lasted for eight days. The difference is that
the circumstances were more seriou s than in the present case, in particular
that the plaintiff was deprived of his chronic medical treatment, as he was
asthmatic. That means the court awarded an amount of R 27 500.00 for each
day of unlawful detention.
day of unlawful detention.
10 CCT 88/20 [2021] ZACC 10, 2021 (7) BCLR 698 (CC), 2021 (2) SACR 595 (CC).
11 2009 (5) SA 85 (SCA) at para [26].
12 2025 (9K6) QOB 1(NWM) para 7, Minister of Safety & Security v Seymour 295/05 [2006] ZASCA.
71, [2006] SCA 67 (RSA)B; [2007] 1 All SA 558 (SCA).
[23] In this matter the appropriate solatia, after consideration of all the facts, in my
considered view, would be an amount R 35 000.00 per day for each of the
plaintiff was in custody. That means the total award for the plaintiff in respect
of the number of days he has been unlawfully arr ested and detained would be
a sum of R 140 000.00.
QUANTUM IN RE MALICIOUS PROSECUTION CLAIM
[24] The facts relating to the claim for malicious prosecution have already been
narrated, which are the same as those of the arrest and detention claim, as
well as the legal principles related thereto. Indeed, as already adumbrated,
the police personnel’s decision to set the law in motion had no reasonable
basis. There was no reasonable basis for even entertaining a suspicion that
an offence had been committe d in the factual circumstances of this case.
Their decision to arrest and detain therefore fails the reasonableness test. For
that reason, the defendant cannot escape being held responsible for their
unreasonable decision, albeit vicariously, of setting th e law in motion when
there was no reasonable basis to do so.
[25] In Nakana v Classens and Others (137/2024) [2025] 52 (7May 2025) the
Supreme Court of Appeal over turned an award of R 250 000.00 made by the
court a quo for damages in respect of malicious prosecution and substituted it
with an amount of R 80 000.00. Having considered all the relevant facts in the
present case I am of the view that an amount R 120 000.00 is appropriate
compensation for the malicious prosecution of the plaintiff.
[26] In the circumstances I make the following order:
(a) That the defendant is ordered to pay the plaintiffs a sum of R
140 000,00 for unlawful arrest and detention.
(b) That the defendant is ordered to pay the p laintiff a sum of R120 000.00
for malicious prosecution.
(c) The defendant is ordered to pay costs of suit.
__________________________
T.A. NKELE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Mr M.C Manana
Attorneys for the Applicant : B Mwelase Attorneys
Suite 201B, 1st Floor
City Centre Building
York Road
MTHATHA
Tel: 067 180 0045 / 047 050 4938
Email: mwelasebongile@gmail.com
Counsel for the Respondent : Advocate Z Baceni
DJZ Group of Advocates
No. 3 Frere Road
MTHATHA
Cell: 063 064 1015
Email: advbaceni@gmail.com
Attorney for the Respondent : The State Attorney
Broadcast House
No. 94 Sission Street
Fortgale
MTHATHA
Matter heard on : 17 September 2025
Judgment delivered on : 23 October 2025