IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
NOT REPORTABLE
Case no: 577/2021
In the matter between:
MFUNDO GWEJELA Plaintiff
and
THE MINISTER OF POLICE First Defendant
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
[1] The plaintiff has instituted this action to recover damages arising from his
alleged unlawful arrest, on or about 14 May 2020, and detention from that date until
11 Novemb er 2020, when he was granted bail. The plaintiff claims from both
defendants in respect of alleged unlawful detention after the first court appearance
on 18 May 2020 (the period of continued detention). The claim for unlawful arrest
and detention prior to the first court appearance (initial detention) is against the first
defendant (the Minister) only. The issues to be determined are whether the Minister
has discharged the onus to prove that the plaintiff’s arrest and initial detention was
lawful and whether the plaintiff’s continued detention was justified by the defendants
or rendered unlawful through unlawful acts or omissions on the part of the
defendants’ employees that caused harm to the plaintiff.
Lawfulness of arrest and initial detention
[2] Warrant Officer Nokolo (Nokolo) testified as to the circumstances of the
plaintiff’s arrest. He was the Peddie Station Commander and formed part of a crime
prevention operation in Peddie on 14 May 2020. His suspicions were aroused when
he observed a grey Toyota Tazz with an ‘ND’ registration number driving in Peddie.
Based on his experience, vehicles without an ‘EC’ registration had often been stolen
elsewhere and used in the province. He communicated with a radio control officer
and conveyed the registration det ails. Approximately 10 to 15 minutes later, he was
informed that the registration number was associated with a white Volkswagen, and
that the owner was from Durban. Given the discrepancy, he decided to make a
follow-up enquiry and requested backup. By this time, he had lost sight of the
vehicle, in traffic.
[3] Soon thereafter, Nokolo observed the Tazz again and was able to stop the
van he was driving in a manner which blocked the road. He alighted close to the
passenger side of the Tazz and, having intro duced himself, confronted the plaintiff,
who was seated in the front passenger seat. One of his colleagues confronted the
driver. A third person was seated in the rear of the Tazz. When Nokolo instructed all
three to alight, he noticed a revolver between t he plaintiff’s legs. When asked, the
three to alight, he noticed a revolver between t he plaintiff’s legs. When asked, the
plaintiff indicated that he did not know who the owner of the firearm was. The other
occupants, having alighted, also expressed no knowledge of the firearm. As a result,
Nokolo informed the three that they had all been arrested for being in possession of
a firearm unlawfully and that they had to be taken to the police station. They were
loaded into the police van and the Tazz was driven by a police officer to the station.
The purpose was to enquire further about the fire arm, which was left untouched in
the vehicle to enable members from the police’s local criminal record centre (LCRC)
to perform their duties. Their investigation later revealed that the firearm contained
no serial number.
[4] After a docket was opened, t he police searched the vehicle at the station, in
the presence of all three accused, and found 13 rounds of R5 (rifle) ammunition in a
blue plastic bag under the driver’s seat in the vehicle as well as 35 revolver rounds.
Nokolo, who had close to 30 years’ experience at the time of the incident, explained
that the discovery of the firearm at the scene was the key basis for the arrest,
together with his dissatisfaction with the response he received upon enquiry. The
firearm was in the vehicle with the passen gers, between the legs of the plaintiff, and
none of the three accepted responsibility for it. Similarly, none of the three accepted
responsibility for the ammunition that had been discovered. The purpose of the
arrest was to ensure that the three appeared in court to answer about the firearm
and ammunition that had been found. Nokolo’s suspicion was that at least one, if not
all, of the three must have had knowledge of the firearm, so that he exercised his
discretion to arrest.
The legal position
[5] The Constitution of the Republic of South Africa, 1996, (the Constitution)
guarantees the right of security and freedom of the person, including the right ‘not to
be deprived of freedom arbitrarily or without just cause’. 1 A peace officer may,
without warrant, arrest any person reasonably suspected of having committed an
offence referred to in Schedule 1, other than the offence of escaping from custody, in
order to bring the arrested person to justice. 2 Given that it results in an interference
with liberty, and is prima facie unlawful, the onus rests on the Minister to justify an
arrest.3
1 S 12(1)(a) of the Constitution of the Republic of South Africa, 1996 (the Constitution).
2 S 40(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977) (the Act) read with Sekhoto and
Another 2011 (5) SA 467 (SCA); [2010] ZASCA 141 ( Sekhoto) para 30. The so -called jurisdictional
facts which must exist before the power conferred by this section may be invoked are as follows: (1)
the arrestor must be a peace officer; (2) they must entertain a reasonable suspicion; (3) it must be a
suspicion that the arrestee committed an offence referred to in Schedule 1 to the Act (other than the
one offence mentioned); (4) that suspicion must rest on reasonable grounds. If the jurisdictional
requirements are satisfied, the peace officer has a discretion wheth er or not to exercise that power:
Duncan v Minister of Law and Order 1986 (2) SA 805 (A) (Duncan) at 818G–I.
3 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E –F; Sekhoto above n 2 para 16;
Mahlangu and Another v Minister of Police 2021 (2) SACR 595 (CC) para 32. The decision to arrest
must be based on the intention to bring the accused person to justice: Duncan above n 2 at 820D.
[6] While it is wrong to attempt to craft hard and fast rules to address whether the
arrest was lawful,4 the following principles have emerged through decided cases and
may be applied to the present facts:5
a) ‘Each case must be decided on its own facts.6
b) A suspicion, by definition, means the absence of certainty. 7 In its ordinary
meaning it is a state of conjecture or surmise where proof is lacking. The officer
in question need not be convinced that the information in their pos session was
sufficient to commit for trial or convict, or to establish a prima facie case for
conviction, before making the arrest. 8 Suspicion arises at or near the starting
point of an investigation of which the obtaining of prima facie proof is the end.
When such proof has been obtained, the police case is complete; it is ready for
trial and passes on to its next stage.9
c) There must be evidence for the arresting officer to form a reasonable suspicion
which is objectively sustainable. 10 The issue is not whether there is evidence
admissible i n a court available to the arresting officer, but whether there was
information available which would cause the officer to reasonably suspect the
suspect of having committed the relevant offence. The reasonableness
requirement extends inter alia to the reliability or accuracy of the information upon
which an arrest is founded, including the quality and ambit thereof.11
d) This does not imply that the quality of the information upon which the arrestor
acts must be analysed and assessed and that acting on the information, the
quality of which has not been subjected to scrutiny, will render an arrest
unlawful.12
4 See Minister of Police v Dunjana and Others [2023] 1 All SA 180 (ECG) (Dunjana) para 18.
5 What follows is drawn from this court’s decision in Vitshima v Minister of Police and Another [2024]
ZAECQBHC 37 paras 25, 26.
6 Minister of Safety and Security v Van Niekerk 2008 (1) SACR 56 (CC); 2007 (10) BCLR 1102 (CC)
(Van Niekerk) paras 17, 20.
(Van Niekerk) paras 17, 20.
7 Dunjana above n 4 para 17.
8 C Okpaluba ‘Reasonable and probable cause in the law of malicious prosecution: A review of South
African and commonwealth decisions’ PER (2013) vol 16, no. 1, at 249.
9 Duncan above n 2 at 819I; Minister of Law and Order v Kader 1991 (1) SA 41 (A) at 50H; Powell NO
and Others v Van der Merwe NO and Others 2005 (5) SA 62 (SCA) ( Powell NO ) para 37, citing
Shabaan Bin Hussien & Others v Chong Kam & Another [1969] 3 All ER 1626 (PC) at 1630C–D.
10 Mataba v Minister of Police [2021] ZALMPPHC 4 para 33. This entails the arresting officer
investigating the circumstances of the particular offence which is alleged to have been committed
before it can be said that there is reasonable suspicion that an offence has been committed.
11 Biyela v The Minister of Police [2022] ZASCA 36 (Biyela) paras 23, 24.
12 Dunjana above n 4 para 21.
e) Bearing in mind that the section authorises drastic, invasive action, the suspicion
should not be fanciful, ‘far-fetched, misguided or patently mistaken’ but based on
‘sound’ evidence.13
f) A suspicion might be reasonable even if there is insufficient evidence for a prima
facie case against the arrestee. 14 The grounds for a suspicion are not limited to
facts which can be proved in court and a reasonable suspicion could concei vably
be formed where a person has been seen at the scene of a crime and, upon
being questioned, gives a false alibi or refuses to answer questions.15
g) Police officers are required to have regard to the facts and circumstances at their
disposal and, where reasonably possible, to satisfy themselves of the merits
thereof.16 What constitutes reasonable gro unds for suspicion is judged against
what was known or reasonably capable of being known at the relevant time.17
h) “The standard of a reasonable suspicion is very low. The reasonable suspicion
must be more than a hunch; it should not be an unparticularised suspicion. It
must be based on specific and articulable facts or information … [and] based on
credible and trustwor thy information.”18 If, in a particular case, the quality of the
information at the disposal of the police officer is so tenuous or conflicting that it
cannot objectively sustain a suspicion as envisaged in s 40(1) (b), the police
officer may first have to make further enquiries before an arrest is affected.19
i) The focus of the enquiry is the information at the disposal of the arresting officer,
which information is to be mea sured against the standard of reasonableness, as
opposed to the reasonableness of the conduct of the police officer concerned. 20
An arrestor’s grounds for suspicion must be reasonable from an objective point of
view.21 The circumstances giving rise to the suspicion must be such as would
ordinarily move a reasonable person to form the suspicion that the arrestee had
ordinarily move a reasonable person to form the suspicion that the arrestee had
committed a first schedule offence. 22 The question is simply whether a
reasonable person, confronted with the same information possessed by the
arresting officer at the time of the arrest, which would include an exculpatory
13 Powell NO above n 9 para 38.
14 Duncan above n 2 at 819I – 820B.
15 Mawu and Another v Minister of Police 2015 (2) SACR 14 (WCC) (Mawu) para 32.
16 Mananga and Others v Minister of Police [2021] ZASCA 71 (Mananga) para 16.
17 Okpaluba above n 8 at 249.
18 Biyela above n 11 paras 34, 35.
19 Dunjana above n 4 para 20. A resultant finding that the police officer could not reasonably have
formed a suspicion as required, is because the information at his dispo sal was insufficient to sustain
such a suspicion, and not because there was a failure to investigate information given by an arrestee.
20 Dunjana above n 4 para 21.
21 Duncan above n 2 at 814D –F. The suspicion need not be based on information that would
subsequently be admissible in a court of law: Biyela above n 11 para 33.
22 Mananga above n 16 para 20.
statement of the arrestee, could form a suspicion that the suspect had committed
an offence as envisaged in Schedule 1.23
j) The SCA has cited the following paragraph of the judgment of Jones J, in this
division, with approval:24
“The test of whether a suspicion is reasonably entertained within the meaning of
s 40(1) (b) is objective … 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 [the
schedule 1 offence ] … It seems to me that in evaluating his 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 wh ich 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 but not certainty.
However, the suspicion must be based on solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.” (References omitted).
k) The reasonable person is the person of ordinary intelligence, knowledge and
prudence. A mistake of fact is not reasonable if it is due to lack of such
knowledge and intelligence as is possessed by an ordinary person, or if it is due
to such careles sness, inattention and so forth, as an ordinary person would not
have exhibited.25
have exhibited.25
l) The test is not to be applied in a vacuum. It is subject to the facts and the context,
which may be crucial. 26 The factual context will be provided by matters such as
the nature of the crime, the elements thereof, the source and the nature of the
information on which the suspicion is said to be based, and its significance in
supporting the suspicion entertained by the arresting officer.27’
23 Dunjana above n 4 para 21.
24 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) ( Mabona) at
658E–H as cited in Brits v Minister of Police and Another [2021] ZASCA 161 para 20.
25 R v Mbombela 1933 AD 269 at 272.
26 Van Niekerk above n 6.
27 Dunjana above n 4 para 18. In Mabona above n 24, the reasonableness of the suspicion of the
arresting officer was determined in the context of the fact that the source of the information, on which
[7] On the question of discretion:
a) ‘If one or more of the grounds listed in paras (a) – (q) of s 40(1) of the Criminal
Procedure Act, 1977 (“the Act”) is satisfied, the discretion whether to arrest
arises. The officer must collate facts and exercise their discretion on those facts.
The officer must be able to justify the exercise of their discret ion on those facts,
which may include an investigation of the exculpatory explanation provided by an
accused person.28
b) The arresting officer is not obliged to arrest based on a reasonable suspicion
because they have a discretion. The exercise of discretion must be objectively
rational and not arbitrary.29 Police officers exercise public powers in the execution
of their duties and “rationality in this sense is a minimum threshold requirement
applicable to the exercise of all public power by members of the executive and
other functionaries”.30
c) That aside, a court will not interfere with the result of the exercise of a discretion
that has been bona fide exercised or expressed, the arresting officer duly and
honestly applying themselves to the question left to their discretion.31
d) Even a discretion exercised in a manner deemed sub-optimal by the court will not
breach the standard: “A number of choices may be open … all of which may fall
within the range of rationality. The standard is not perfection, or even the
optimum, judged from the vantage of hindsight and so long as the discretion is
exercised within this range, the standard is not breached.”32
e) The factors to be weighed in exercising the discretion must be gleaned from a
consideration of the Act as a whole, including consideration that an arrest is one
step in the process of bringing a suspect to justice, rather than isolated focus on s
40.33
the officer based his suspicion, w as an anonymous informer – a fact that would have caused a
reasonable police officer to be more cautious.
28 Groves NO v Minister of Police and Another 2024 (1) SACR 286 (CC) para 52.
28 Groves NO v Minister of Police and Another 2024 (1) SACR 286 (CC) para 52.
29 The objective enquiry is to determine whether the decision was rationally related to the purpose for
which the power was given : Pharmaceutical Manufacturers Association of SA: In Re Ex Parte
Application of the President of the RSA 2000 (2) SA 674; 2000 (3) BCLR 241 (CC) ( Pharmaceutical
Manufacturers) paras 85–86 as cited in Sekhoto above n 2 para 36.
30 Pharmaceutical Manufacturers above n 29 para 90.
31 Shidiack v Union Government (Minister of the Interior) 1912 AD 642 at 651 –652, as cited in
Sekhoto above n 2 paras 34–36.
32 Sekhoto above n 2 para 39.
33 Sekhoto above n 2 para 40 and following.
f) Generally speaking, there is no onus upon the police to carry out a thorough
investigation in each and every case before an arresting officer exercises their
discretion whether or not to effect an arrest without a warrant.34
g) Although the purpose of arrest is to bring the suspect to trial, the arrestor’s role in
that process is limited. In cases of serious crime, including those crimes li sted in
schedule 1, a peace officer could seldom be criticised for arresting a suspect for
that purpose.35
h) It is for the plaintiff to prove that the discretion was exercised in an improper
manner.36
i) Again, the enquiry is fact specific and it is neither prudent nor practical to
formulate a general rule. Police officers have the discretion to arrest and exercise
this power in pursuit of their constitutional duty to combat crime. As police officers
are confronted with different facts each time th ey effect an arrest, a measure of
flexibility is necessary in their approach to individual cases.37’
Analysis
[8] It is part and parcel of the right to a fair trial that witnesses have the
opportunity to answer challenges to their evidence, and that parties to the suit know
that it may be necessary to call corroborating or other evidence relevant to the
challenge that has been raised. 38 If a point in dispute is left unchallenged in cross -
examination, the party who called the witness who is bein g cross -examined is
entitled to assume that the unchallenged witness’s testimony is accepted as
correct.39
[9] The plaintiff failed to challenge Nokolo’s evidence pertaining to the firearm he
had observed at the time the Tazz was stopped, which formed the basis for the
plaintiff’s arrest. The highwater mark of the cross -examination on the point was the
34 Lifa v The Minister of Police and Others [2023] 1 All SA 132 (GJ) para 66.
35 Sekhoto above n 2 para 44: ‘It is sufficient to say that the mere nature of the offences of which the
respondents were suspected in this case – which ordinarily attract sentences of imprisonment and are
capable of attracting sentences of imprisonment for 15 years – clearly justified their arrest for the
purpose of enabling a court to exercise its discretion as to whether they should be detained or
released and if so on what conditions, pending their trial.’
36 Duncan above n 2 at 819B–D; Sekhoto above n 2 para 49.
37 MR v Minister of Safety and Security and Another 2016 (2) SACR 540 (CC) (MR) para 42.
38 See PJ Schwikkard and TB Mosaka Principles of Evidence (5 th Ed) (2023) ch 18 at 413; S v
Boesak 2001 (1) SACR 1 (CC) para 26.
39 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 1 (CC) at 37B.
version that the driver ha d accompanied police officers who searched the vehicle
later at the station, absent Nokolo, and had returned and informed the plaintiff that ‘a
firearm’ and ammunition had been found in the vehicle. Nokolo, having not been part
of that group of officers, w as unsurprisingly not able to comment. By contrast, and in
addition, it was put to Nokoyo that, as the occupants of the Tazz had been placed in
police vans at the scene, while the Tazz was driven to the station by the police, ‘you
can agree with me that on ly the police know that the firearm was not touched…’.
Again, the clear implication was that the plaintiff did not contest that there had been
a firearm in the Tazz at the time of the arrest. Cross -examination also included the
concession that Nokoyo had i nformed the plaintiff, at the time, that he was being
arrested in connection with the firearm. Belatedly, it was suggested that this only
occurred at the police station.
[10] The plaintiff’s testimony tha t he had never seen the firearm in the motor
vehicle at the time of the arrest must be considered in that light. Leaving aside the
failure to put this version clearly to Nokolo, I found Nokolo to be a credible witness,
testifying clearly, honestly and with candour about what he could recall leaving aside
genuine errors of memory. His testimony was reliable and coincided with the
established objective facts pertaining to the reason for the arrest, including the notice
of rights signed by the plaintiff at 17h 30 on 14 May 2020, reflecting the reason for
detention to be ‘illegal possession of firearm and ammunition’. On the plaintiff’s own
version, he was informed by Nokoyo of the firearm and ammunition on the day of his
arrest, but only at the reception area of the police station.
[11] The calibre and cogency of Nokolo’s testimony was superior to that of the
plaintiff. This assessment is grounded upon several reasons. The plaintiff appeared
plaintiff. This assessment is grounded upon several reasons. The plaintiff appeared
uncertain at times and did not create a favourable impression as a wi tness, as
indicated above. On occasion, he mumbled his responses, laughed and was himself
confused about charges he had faced previously, and which of those charges were
still pending. His version departed on occasion with what had been put on his behalf,
for example in respect of his knowledge as to why the driver had been called by the
police at the station. He also attempted to explain why all aspects of his version were
not put to the defendants’ witnesses by suggesting, on more than one occasion, that
he had been outside the courtroom at the time and hence had not heard the
testimony in question. This related to various instances where significant testimony
regarding the circumstances of the arrest had not been contradicted during cross -
examination and was implausible, including Nokoyo’s observation of the firearm at
the scene. To cite three examples of his lack of candour, he maintained that he was
unable to confirm that his signature appeared in the ‘notice of rights’ document,
despite this being readi ly apparent. He then testified that he had signed the
agreement, but without the contents having been read to him, so that he had read
the document himself later in his cell. He also gave multiple conflicting and
improbable explanations as to why he had in dicated his parental home as his place
of residence at the time of his arrest, despite living elsewhere at the material time. As
an afterthought, he testified during cross -examination that he had not told Nokoyo
that he had been hitchhiking because he had been manhandled at the scene.
[12] Nokolo’s evidence as to the circumstances of the arrest and its immediate
aftermath also accords with the inherent probabilities. Considering the favourable
credibility assessment and the reliability of his testimony, h is version is preferred to
that of the plaintiff, notwithstanding the fact that he was the only witness to testify on
behalf of the defence in respect of the circumstances of the arrest. This favourable
assessment of Nokolo’s evidence includes the reason f or the arrest, so that the
plaintiff’s suggestion that he was initially informed that he had been arrested for
robbery is rejected.
[13] Applying the principles drawn from decided cases, cited above, I am satisfied
that there was sufficient evidence for Nokolo, based on his own observances and his
engagement with the plaintiff and other occupants of the motor vehicle, to form a
reasonable suspicion, objectively sustainable, that the three had committed an
offence referred to in Schedule 1 pertaining to po ssession of the firearm. Nokolo’s
offence referred to in Schedule 1 pertaining to po ssession of the firearm. Nokolo’s
decision to exercise his discretion and arrest the plaintiff was properly justified on
this basis, objectively rational and not arbitrary. On the probabilities, and contrary to
his pleaded case, there was no pointing of fi rearms and the plaintiff failed to inform
Nokolo at the material time that he had been hitchhiking, rather than travelling with
the other occupants of the vehicle, or to offer any other explanation. As a result,
Nokolo had no information to consider other than what he had seen and heard,
including the mismatch between the car registration details for a Volkswagen and the
Toyota vehicle in front of him, and in which the firearm had been observed. 40 The
only reasonable conclusio n to draw is that Nokolo analysed and weighed the
available information to form the reasonable suspicion that the plaintiff had
committed a schedule 1 offence and should be arrested.
[14] The jurisdictional facts having been satisfied, and in the circums tances, it
would be inappropriate for this court to interfere with the result of a discretion
exercised by Nokolo bona fide and through determination of a question left to his
judgment. His decision to arrest the plaintiff to bring him to trial, in pursuit of the
constitutional duty to combat crime, was justifiable on the facts and the plaintiff has
failed to prove that the discretion was exercised improperly. Put differently, the arrest
amounted to an effective method of initiating a prosecution and bringi ng the plaintiff
before court and, given that a firearm was involved, less drastic means would have
been inappropriate.
[15] Once the jurisdictional facts have been satisfied, the peace officer may arrest
the suspect and the effect is that the arrested pe rson is considered to be in lawful
custody, to be detained until lawfully discharged or released. 41 The arrestee should
then be brought before court as soon as possible, but not later than 48 hours after
the arrest, provided that if the period of 48 hours expires outside ordinary court hours
or on a day which is not an ordinary court day, the accused shall be brought before a
lower court not later than the end of the first court day.42
[16] Section 39(3) of the Act provides for the continuity of the lawfulness of the
detention of a suspect. It must be read in the context of those provisions of the Act
which provide for the release of a suspect from detention. 43 Lawful release from
custody may occur either before, at or after the detained suspect’s first appearance
in court, as is required by s 50 of the Act and the Constitution.
40 Duncan above n 2 at 466D – F.
40 Duncan above n 2 at 466D – F.
41 S 39(3) of the Act.
42 Ss 50(1)(c) and (d)(i).
43 Syce and Another v Minister of Police [2024] ZASCA 30 para 42.
[17] The plaintiff was arrested on Thursday 14 May 2020 and brought before court
on Monday 18 May 2020, within the permissible period, having been lawfully
arrested and placed in custody. There are no facts to suggest that he ought to have
been released prior to his first court appearance. Considering the provisions of ss 39
and 50 of the Act, read with ss 59 and 59A, and the seriousness of the alleged
offences, the Minister has succeeded in proving that the plaintiff’s detention until the
first court appearance was justified.44 There was a constitutionally acceptable reason
for the deprivation of liberty, so that the applicable public law duty was not breached
in respect of this period of detention. 45 In the circumstances, the plaintiff’s initial
detention was lawful. It may be added that Nokolo explained that he did not have the
power to release the plaintiff on bail after he had charg ed him and, in any event,
would not have done so given that the plaintiff was facing a pending case involving a
firearm. In all the circumstances, the plaintiff’s claim for damages for unlawful arrest
and initial detention must be dismissed.
Unlawful continued detention
Pleadings and evidence
[18] The plaintiff pleads his case under the heading of ‘unlawful continued
detention after first court appearance’. It is averred, inter alia , that the state
prosecutors, acting in concert with the investigating officers owed the plaintiff a duty
of care to assess the strength of the state’s case and to determine whether a prima
facie case existed, to ensure that the proceedings were dealt with in accordance with
the dictates of justice and to release the plaintiff in the absence of a prima facie
case. This inc luded a duty not to seek to deny bail in such circumstances, and to
place before the court, during bail proceedings, all relevant information, including
information in favour of the plaintiff, demonstrating the weakness of the state’s case
information in favour of the plaintiff, demonstrating the weakness of the state’s case
or insufficiency of evidence. Instead, it is alleged that the police and prosecutors
acted in concert to oppose bail maliciously in circumstances where continued
detention was unnecessary, also postponing the matter on numerous occasions
while the plaintiff was in detenti on. In particular, the plaintiff claims that the
prosecutors acted in concert with Sergeant Booi (Booi) by submitting that the plaintiff
44 Zealand v Minister of Justic e and Constitutional Development 2008 (2) SACR 1 (CC) ( Zealand)
para 25.
45 See Banda v Minister of Police NO [2021] JOL 50674 (ECG) paras 61 – 64.
was a dangerous criminal charged with schedule 6 offences, and that there was a
strong case against him. Booi, it is pl eaded, ‘falsely and maliciously misled the court
by submitting that plaintiff had a pending case at the Bhisho High Court when in fact
he had been acquitted of all charges relating thereto’. Plaintiff’s bail was denied on 5
June 2020 due to these allegedly false assertions, ultimately resulting in the plaintiff
spending 177 days in unlawful custody. The failure to conduct an identity parade
prior to the addition of charges is also challenged.
[19] Mr Kili (Kili), the Head Control Prosecutor in Peddie at th e time, testified that
he had perused the docket and decided that the matter was ready for enrolment on
18 May 2020 on charges of illegal possession of a firearm and ammunition. Before
the matter was called, Mr Mgangatho approached Mr Kili and informed him that he
appeared on behalf of the accused. When advised that bail would be opposed based
on the nature of the charges, Mr Mgangatho advised him that he was meeting the
accused for the first time and required time to consult and prepare a formal bail
application. The matter was therefore postponed by agreement until 26 May 2020 for
a formal bail application.
[20] As is evident from Kili’s cross -examination, it is common cause that the
plaintiff was initially charged with schedule 5 offences, based on a pe nding case,
which Mr Mgangatho had seemingly confirmed before court on 18 May 2020. In
terms of s 60(11)( b) of the Act, where an accused is charged with an offence
referred to in schedule 5, the court ‘shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law, unless the accused,
having been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that the interests of justice permit his or her release’.
[21] Kili, who was an e xcellent witness, confirmed that the purpose of the
[21] Kili, who was an e xcellent witness, confirmed that the purpose of the
postponement of the matter until 26 May 2020 was to enable the plaintiff’s
representative to prepare the necessary application to satisfy the court that the
interests of justice permitted his release. Kil i also gave various instructions to the
investigating officer for further investigation to be conducted prior to the envisaged
bail application on 26 May 2020. He confirmed that there was no bar to Mr Seitlheko
(Seitlheko), who took over the prosecution fr om that date, to add charges if new
information emanating from such investigation appeared in the docket and justified
this. During cross-examination, he explained that it was good practice for charges to
be added before a bail application if there was inf ormation at hand supporting their
introduction, rather than doing so afterwards. This enabled an accused person to
know all the charges they were facing, rather than proceeding piecemeal.
[22] Seitlheko testified that the matter could not proceed on 26 May 2020 as two of
the three accused persons were not present in court. Mr Mgangatho again
represented the accused, and the matter was postponed until 29 May 2020. The
accused were remanded in custody again on that date and the bail application
postponed by agreement to 2 June 2020 and then again to 3 June 2020. On 2 June
2020, the state, through Seitlheko, applied to add three additional charges. The
basis for this was that the motor vehicle linked to the initial two charges had since
been implicated in a r obbery and attempted murder in the Peddie area, the
registration number of the motor vehicle having been cited in a statement from the
complainant, who averred that he had full, daylight view of the vehicle and was able
to describe it. According to Mr Seit lheko, this information could not be ignored and
there was nothing untoward about the way the three extra charges were added.
Considering that the firearm had been discovered in the vehicle, there was a prima
facie case for the three extra charges to be in cluded against the accused, and it
would have amounted to dereliction of duty not to have done so. While the plaintiff’s
name was not mentioned specifically in those dockets, an inference had been drawn
based on the description of the motor vehicle, the us e of a firearm and description of
events obtained from the complainant. In addition, items found in the motor vehicle
were the same as those allegedly stolen. Absent any objection on the part of Mr
were the same as those allegedly stolen. Absent any objection on the part of Mr
Mgangatho, the application was granted so that the additional charges were included
on the charge sheet prior to the application for bail proceeding. A new charge of
robbery with aggravating circumstances lawfully elevated the applicable schedule
from 5 to 6 on its own. The charges of attempted murder had the same effect.
[23] Seitlheko explained, during cross -examination, that the case against the
plaintiff in respect of the additional charges was circumstantial and based on the
doctrine of common purpose. Part of what he had considered was that the
complainant in the robbery case had made mention of four robbers, so that he
considered a syndicate to be involved. Airtime had been taken and, when confronted
about the airtime in his possession, accused no. 1 had lied in informing the police
that he was selling airtime. The complainant had been tied up and placed next to the
Tazz, which he was able to observe, and which was the same vehicle in which the
accused were apprehended a few hours later. Despite no identification parade
having been conducted, the plaintiff h ad been implicated having been found in the
motor vehicle associated with the robbery, and allegedly in possession of a firearm
likely used in the commission of the offence. Four people had been involved in the
robbery and three people were in the vehicle when it was stopped by Nokoyo and
the police. Airtime, one of the items stolen, had been discovered in the possession of
one of the three. The decision to add the charges had been based on this
information, considered cumulatively, and was not unlawful or borne of malice.
Analysis
[24] Every interference with physical liberty, including through arrest and
detention, is prima facie unlawful, the burden being on the person that caused the
interference to establish a ground of justification. A detention cons titutes a drastic
curtailment of a person’s freedom and there should be a justifiable cause for any
interference with this right, especially considering the ‘traumatic, brutalising,
dehumanising and degrading’ effect that detention can have on people. 46 It must
also be noted that a remand order by a magistrate does not necessarily render
subsequent detention unlawful. 47 What matters is whether, substantively, the re was
just cause for the deprivation of liberty, to be determined with regard to the manner
in which the remand order was made.
[25] It is evident that the particulars of claim combine a claim for unlawful
continued detention with one based on malicious deprivation of liberty. This must be
construed in accordance with the principles of law applicable to the determination of
construed in accordance with the principles of law applicable to the determination of
the liability of the Minister and the NDPP for the plaintiff’s period of continued
detention. Both wrongful and malicious deprivation of liberty are iniuria actionable
under the actio iniuriarum . Wrongful deprivation of liberty (detention) takes place
46 MR above n 37 para 67.
47 De Klerk v Minister of Police 2020 (1) SACR 1 (CC) (De Klerk) para 62.
where the defendant, or their agent or employee, detains the plaintiff. Malicious
detention takes place under or in terms of a valid judi cial process, where the
defendant makes improper use of the legal machinery of the state. As a result, the
SCA has held that the NDPP could only be liable for the period of continued
detention if the stringent requirements to succeed in an action for malicious detention
were proved in respect of the relevant prosecutors. 48 Where the police wrongfully
detain a person, they may also be liable for the post -hearing detention of that person
where there is proof on a balance of probability that the culpable and unlawful
conduct of the police was the factual and legal cause of the post-hearing detention.49
[26] It is therefore necessary to deal with both possibilities and their elements in
turn.50 It is convenient to consider the cla im based on culpable and unlawful conduct
first, under the following headings: the addition of charges; the bail proceedings; the
various postponements.
The addition of charges
[27] The plaintiff avers that there was no reasonable or probable cause to add the
three further charges of robbery with aggravating circumstances and two counts of
attempted murder (the further charges). Absent any information linking the plaintiff to
these offences, it is argued that the investigating officer and public prosecutor acted
negligently and / or maliciously, abused their powers and proceeded in breach of
their legal duty to ensure that an accused person is brought to court to face the
correct charges.51
[28] The Constitution provides that the prosecuting authority has the power to
institute criminal proceedings on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings.52 Section 20(1) of the National
48 Minister of Police and Another v Erasmus [2022] ZASCA 57 (Erasmus) para 11.
49 Ibid para 12, including various references to cases involving culpable conduct on the part of the
police.
50 See Minister of Police v No ntsele [2024] ZASCA 137; [2025] 1 All SA 44 (SCA) ( Nontsele) para 48.
Also see Spilhaus Property Holdings (Pty) Limited and Others v MTN and Another [2019] ZACC 16;
2019 (6) BCLR 772 (CC); 2019 (4) SA 406 (CC) para 44.
51 Cf Erasmus above n 48 para 15, holding that the liability of the NDPP depends on proof that the
prosecutors caused the period of continued detention without reasonable and probable cause and
animo iniuriandi.
52 S 179(2) of the Constitution.
Prosecuting Authority Act, 199853 (the NPA Act) provides that this power vests in the
prosecuting authority and, for all purposes, is exercised on behalf of the Republic.
Any duly authorised prosecutor is competent to exercise any of these powers in
respect of the area of jurisdiction for which they have been appointed.54 In terms of s
25(1) of the NPA Act, a prosecutor shall exercise the powers, carry out the duties
and perform the functions conferred or imposed on or assigned to them under this
Act and any other law of the Republic and, if employed as a prosecutor in a lower
court, by the Director in whose area of jurisdiction such court is situated.
[29] In terms of s 81 of the Act, any number of charges may be joined in the same
proceedings against an accused at any time before any evidence has been led in
respect of any particular charge. Where several charges are so joined, each charge
is numbered consecutively. The Act also regulates the charge where it is doubtful
what offence has been committed:55
‘If by reason of any uncertainty as to the facts which can be proved or if for any other reason
it is doubtful which of several offences is constituted by the facts which can be proved, the
accused may be charged with the commission of all or any of suc h offences, and any
number of such charges may be tried at once, or the accused may be charged in the
alternative with the commission of any number of such offences.’
[30] The Act provides for an accused to object to the charge before pleading and
for the court to order that the charge be amended in certain circumstances. 56
Academics have noted that, in most cases, the person who is responsible for drafting
a charge sheet will not, prior to trial, be exactly sure which facts the c ourt will find to
have been proven. Given this dilemma, s 83 authorises the drafter of a charge sheet
to charge an accused with all the offences that might possibly be proved by means
53 Act 32 of 1998 (the NPA Act).
54 S 20(5) of the NPA Act.
53 Act 32 of 1998 (the NPA Act).
54 S 20(5) of the NPA Act.
55 S 83 of the Act.
56 Ss 85 and 86 of the Act.
of the available facts. 57 In S v TN , the court explained the effect as follows (own
emphasis):58
‘The prosecution is thus permit ted to bring in as many charges as can be justified by the
facts to be proved . It ultimately lies with the trial court in the end to decide on the facts
whether or not conviction of the offences will constitute a duplication of convictions.’
[31] Considering the evidence presented, I am satisfied that the defendants have
shown, courtesy of Seitlheko’s evidence, which I accept, that the facts available at
the time justified the additional charges, and that these charges were not added
maliciously, in bad fa ith, negligently or to ensure that bail was denied. 59 There was
also no objection by the plaintiff’s representative, who was consulted prior to the
addition of the charges, and both the prosecutor and plaintiff’s representative were
alive to the consequent change of schedule applicable. Even before the furth er
charges were added, the burden was on the plaintiff to demonstrate that the interests
of justice warranted his release from custody.
[32] As indicated, the change of schedule raised the bar so that exceptional
circumstances were required. It is so tha t the Director of Public Prosecution’s
subsequent decision to proceed in the District Court in respect of only the original
two charges lowered the applicable schedule and appears to have contributed to the
decision to grant bail ‘on new facts’. But this c annot, on its own, and in the present
circumstances, justify a claim for damages for the way the charges were formulated
prior to that decision being taken. The evidence also reveals that the plaintiff’s
representative had committed to bring an application on alleged new facts sometime
before this eventually occurred, and there is no support for the contention that this
did not occur purely because schedule 6 was applicable. The delay in bringing the
application for bail on new facts is considered, below.
application for bail on new facts is considered, below.
57 S 83: ‘If by reason of any uncertainty as to t he facts which can be proved or if for any other reason
it is doubtful which of several offences is constituted by the facts which can be proved, the accused
may be charged with the commission of all or any of such offences …’; S van der Merwe / M Watney
‘The charge’ in S Terblanche (ed) Du Toit: Commentary on the Criminal Procedure Act (2025) RS66
(2021) ch14-5,6.
58 S v TN 2017 (4) NR 1069 (HC) para 11.
59 On an assumption justifying the addition of a charge, see Jansen and Others v Minister of Police
and Another [2015] ZAECPEHC 17 para 39.
The bail proceedings
[33] Section 35(2) of the Constitution provides that everyone who is detained has
the right to challenge the lawfulness of the detention in person before a court and, if
the detention is unlawful, to be released. An accused who is in c ustody in respect of
an offence shall be informed by the court of the reasons for his or her further
detention or be charged and entitled to apply to be released on bail. 60 The accused
is entitled to be released on bail, subject to the provisions of s 50(6) of the Act, at
any stage preceding conviction, if the court is satisfied that this is in the interests of
justice.61 If the question of the possible release of the accused on bail is not raised
by the accused or the prosecutor, the court shall ascertain from the accused whether
he or she wishes that question to be considered by the court. 62 The arrestor has a
limited role in respect of determining whether a suspect ought to be detaine d
pending trial. That is typically the role of the court which, together with the
prosecuting authority, fulfils a key function from this point. In Minister of Police and
Another v Du Plessis, the SCA defined the latter’s role as follows:63
‘Once an arrestee is brought before a court, in terms of s 50 of the Criminal Procedure Act
51 of 1977 … the police’s authority to detain, inherent in the power of arrest, is exhausted …
As pointed out … in the court below, before the court makes a decision on the continued
detention of an arrested person comes the decision of the prosecutor to charge such a
person. A prosecutor has a duty not to act arbitra rily. A prosecutor must act with objectivity
and must protect the public interest.’
[34] It is common cause that the plaintiff was discharged by Stretch J, having
stood trial on charges of statutory conspiracy to murder, murder, and possession of
firearms and ammunition in relation to the shooting of one Mr Ndevu in the Peddie
firearms and ammunition in relation to the shooting of one Mr Ndevu in the Peddie
district on 2 August 2017. 64 Seitlheko was cross -examined extensively in respect of
his questioning of Booi, who testified in opposition to the plaintiff’s application for bail
on 2 June 2020. The record of the bail proceedings reveals that Booi initially
mentioned a number of cases including ‘murders, attempted murders and with these
firearms’, later referring to eight dockets that forme d part of the investigation.
60 S 50(6)(a) of the Act.
61 S 60(1)(a) of the Act.
62 S 60(1)(c) of the Act.
63 Minister of Police and Another v Du Plessis [2013] ZASCA 119; 2014 (1) SACR 217 (SCA) para 28
(citations omitted).
64 See S v Dingela and Others [2019] ZAECBHC 12.
Seitlheko, the bail record shows, deliberately focused Booi’s attention on the cases
at hand and obtained an update from Booi on progress regarding the investigations,
including the way the firearm described by Nokolo had been discovered in the Tazz.
Booi subsequently testified about several firearms that had been stolen from a police
station, adding that some of these firearms had been found in the possession of the
plaintiff and different co-accused, and that the related case was pending.
[35] Booi, in testifying during the application for bail, specifically alluded to the
case before Stretch J and noted that the plaintiff had been ‘released’ in that matter.
During cross-examination, this was further clarified:
‘Mr Mgangatho: It is my instruction from applicant No 3 regarding that matter of Bhisho
where you indicated it was withdrawn, he says that matter was
finalised, the person who was charged in that matter was sentenced.
Court: Yes.
Mr Booi: Your Worship, applicant No 3 is right what he’s saying that only one
guy got sentenced in that case…Which is his co -accused, he says –
he’s continuing with his sentence but on that case, Your Worshi p,
there’s him, there’s another guy just I’ve forgot the name, Your
Worship, why – the reason why the case was being dropped under
them but the case is on and I think you know about that, Mr
Mgangatho, the case is on as long as we are still active in our
investigation the case is on.’
[36] Seitlheko explained during his evidence that the reference to ‘the case is on’
pertained to investigation of another individual who had not been charged initially.
Seitlheko put to Booi that the plaintiff had admitted th at ‘he has a pending case of
possession of firearms and now he is being found – allegedly found in possession of
a firearm again and he is out on bail in that matter…’. Seitlheko highlighted the
plaintiff’s pending case to Booi and, while concluding examin ation-in-chief, gave him
plaintiff’s pending case to Booi and, while concluding examin ation-in-chief, gave him
the opportunity to comment on the strength of the state’s case against the plaintiff
and his co-accused. Seitlheko also added the following:
‘Tell me applicant No 3 he is out in a serious matter on bail and we don’t have any eviden ce
to the effect that he has contravened any condition that was given to him, why would you
oppose his release on bail if he has that propensity to attend to his matters when required of
him to do so?’
[37] As he testified, Seitlheko was confident of his case in opposing bail and had
satisfied himself based on all the information at his disposal, including the plaintiff’s
admitted pending case and the statements of witnesses to the robbery and
attempted murder matters. He had also considered the doctrine of recent possession
in respect of one of the plaintiff’s co -accused and the close connection in time of the
various alleged offences. While the firearm used in at least one of the additional
alleged offences had also been described as a revolver, he was al ive to the absence
of ballistic reports and lack of certainty that this was the same revolver discovered in
the plaintiff’s possession. The focus was on rebutting the plaintiff’s application for bail
and Seitlheko was content to leave the decision in the hands of the bail court.
[38] During cross-examination of Booi, Mr Mgangatho, representing the applicants
for bail, dealt with the matter as one falling under schedule 6. Booi confirmed that
none of the applicants had been charged in respect of the eight d ockets he had
mentioned, explaining his understanding that anything ‘that is of interest in my
investigation’ could be made known to the court. He remained ‘quite positive that the
same people are arrested or being the applicants in this bail are the same people
with others implicated in those eight dockets that we are investigating.’ Booi
accepted, however, that the eight dockets did not qualify as either pending cases or
previous convictions and, as will be illustrated, the magistrate’s decision was not
based on matters extraneous to the original two charges.
[39] Although he was initially uncertain about which firearm -related matter had
been concluded with the plaintiff’s acquittal, Seitlheko’s position was crystallised
during the court’s questioning and when he was recalled to testify. It may be added
that, in my opinion, he was an honest and forthright witness. In essence, the factual
that, in my opinion, he was an honest and forthright witness. In essence, the factual
position was that the plaintiff had been acquitted by Stretch J along with one co -
accused. One person had been sentenced and the investigation was ongoing in
respect of a fourth indi vidual. Separate from the firearm pertaining to that matter in
the High Court, there was another firearms -related charge, pertaining to firearms
discovered at a bed and breakfast, linked to the plaintiff, and pending in the Peddie
Regional Court at the time of the bail application.
[40] Significantly, the plaintiff’s affidavit in support of bail had conceded a pending
matter involving a firearm, so that Seitlheko did not see the need to delve into the
issue further in opposing bail. Stretch J’s judgment g ranting the plaintiff a discharge
at the close of the state’s case in that matter was delivered on 10 May 2019. The
plaintiff’s affidavit in support of bail, read into the record more than a year later, on 2
June 2020, referred to ‘as far as I can remember I have one pending case against
me that is the charge of possession of firearm…’. Booi had briefly explained his
understanding of this case which, as Seitlheko explained, was pending before the
Peddie Regional Court. Having himself accepted that he had a pending firearm’s
charge, it follows that there was little cross -examination on the point during the bail
proceedings, so that Booi’s explanation was the only evidence on this score before
the magistrate.
[41] Despite these indications to the contrary, i t was put on behalf of the plaintiff
that the pending charge involving possession of a firearm in the Peddie Regional
Court was precisely the same as that referred to in Stretch J’s judgment. Instead,
based on the accepted timeline of events and the plaint iff’s own concession of a
pending charge at the time of the bail application, the probabilities favour Seitlheko’s
version that the discharge and pending case were separate matters. The effect is
that the defendants did not rely on a stale charge, in respe ct of a matter where the
plaintiff had been discharged having been prosecuted, in support of the opposition to
bail.
[42] Whereas Booi testified and was subjected to cross -examination, the plaintiff
was content to rely on an affidavit in support of the a pplication for bail. As indicated,
the plaintiff confirmed in his affidavit that he had a pending case involving
possession of a firearm and, in the heading to the affidavit, acknowledged the
possession of a firearm and, in the heading to the affidavit, acknowledged the
applicability of schedule 6. Before this court, the plaintiff co nfirmed, during his own
evidence, that the pending case involved two firearms that he had pointed out at a
bed and breakfast, and which belonged to a family member. In any event, the
plaintiff did not made use of the opportunity before the bail court to ad d any
additional information about either his acquittal or the admitted pending firearm -
related case. Unsurprisingly, he was unable to explain in these proceedings why he
would have referred to the Stretch J case as a pending matter during the bail
proceedings, despite having long been acquitted.
[43] Booi was challenged on the link between eight dockets and the accused and
responded to various questions from the magistrate. Far from being clouded by the
various matters linked to the plaintiff by Booi, o r by the conduct of Seitlheko or Kili,
the magistrate had no difficulty in considering the additional charges to be tenuous
and ‘not strongly connected’ to the applicants. Importantly, bail was ultimately
refused not because the plaintiff was considered to be a dangerous criminal, but
based on application of the ordinary schedule 5 test, and considering only the
original two charges:
‘[In respect of the added charges] … there may not be sufficient identification, there is still a
lot to be done in regard to those counts and if those counts are brought to court and to be
tried as they are there are a lot of chances that now the State could lose its aim of
prosecution … [But] when somebody is found in possession of ammunition for an R5 rifle
which is an assaul t rifle, [and is charged with] possession of an unlicensed firearm that
person is not going to a picnic, you do not just possess those things and here it has to be
considered that possession is a complex legal principle. If you find a bag of dagga inside this
court and there is nobody who explains as to take responsibility for it and there is no
explanation we can all be taken in by the police because now this is unlawful, this is what
has happened in this matter that the presence of such unlawful items res ulted in all of them
being arrested and there is nothing else as to what the contestation, what was the objection
to their arrest, I did not hear it…’
[44] It was the plaintiff’s failure to demonstrate that the interests of justice
warranted his release in respect of the discovery of the firearm in his possession and
warranted his release in respect of the discovery of the firearm in his possession and
the ammunition in the Tazz that resulted in the refusal of bail, rather than any undue
influence on the magistrate’s discretion occasioned by the representations of
employees of the defendants .65 Arguments were presented on 4 June and bail was
denied on 5 June 2020. Although the magistrate appeared to swop the plaintiff’s
pending case involving possession of a firearm with his co -accused’s pending case
of ho usebreaking, the point is that the magistrate considered the pending cases,
together with the other relevant factors, in weighing whether the interests of justice
65 See Erasmus above n 48 paras 13–14.
warranted bail in respect of each of the applicants for bail. Without applying the
schedule 6 ‘exceptional circumstances’ test, the court concluded that the plaintiff and
his co-accused had failed to discharge that onus. As Seitlheko testified, the options
available to the plaintiff thereafter were to appeal against the refusal of bail to the
High Court, alternatively to move an application for bail on new facts, which was the
plaintiff’s preferred option.
Subsequent postponements
[45] An application for bail is generally considered to be urgent in nature. Despite
repeated suggestions that an appl ication for bail based on new facts was to be
brought, after bail was refused, this did not occur, for one reason or another,
between 27 July and 11 November 2020. The evidence reveals that none of these
delays could be attributed to the conduct of the def endants. The record reflects, and
the plaintiff confirmed, that Mr Magqabi, who appeared for the plaintiff on 27 July
2020, indicated that he would pursue a bail application on new facts, and the matter
was postponed to 13 August 2020. It stands to reason that the mooted application
was to proceed based on new facts within the knowledge of the plaintiff and
notwithstanding the various charges he was facing at the time. The matter was then
postponed by agreement until 28 August 2020 for the transcription of the record to
be made available, and then again until 7 October 2020. The plaintiff understood
these postponements to be necessary given that he had replaced his legal
representative and his new representative had to familiarise himself with the record
of the earlier proceedings, rather than because of the further charges. Following
argument, the court granted a ‘final remand for investigations’ and postponed the
matter to 6 November 2020. The prosecutor informed the court that the matter would
proceed only in respect of counts 1 and 2, in the District Court, and that a formal
proceed only in respect of counts 1 and 2, in the District Court, and that a formal
letter from the Director of Public Prosecutions was awaited. This change, in other
words, occurred sometime after the plaintiff’s representative had first indicated that
bail on new facts would be sought. The matter was postponed, again by agreement,
to 11 November 2020 for ‘pre -trial and bail on new facts’, it appearing as if the
prosecutor was not ready to proceed based on the unavailability of her witness. The
record reveals that an application for bail based on new facts was heard on 11
November 2020. What ‘new facts’ emerged on that date, and the role played by the
decision to proceed in the District Court only in respect of the original two charges, is
unclear from the record. Bail was granted with conditions, and the matter was
remanded for trial on 25 January 2021. Even if the reduction in charges was the
catalyst for bail being granted, it does not follow that the way the charges had been
formulated, including the additional charges, was unlawful.
Conclusion
[46] Because dete ntion in custody implicates the freedom of the person
concerned, and triggers the corresponding constitutional right in s 12(1) (a), the
police and prosecutor may be found to have a public law duty to assist the court in
giving effect to, and protecting thi s right. 66 The nature of the duty must be
determined on the facts in the context of the relevant section of the Act.67 The further
detention resulted from the order granted by the magistrate. 68 In appropriate
circumstances, however, neither the police nor the prosecutor would be relieved
from disclosing to the court that there was an absence of evidence to substantiate
the charges, or that the only evidence implicating the accused was very weak, or, for
example, entirely dependent upon the admission of hearsay evidence emanating
from a co-accused.69
[47] Various constitutional provisions oblige police officers to establish, before
arresting and detaining a person, the justification and lawfulness of arrest and
detention, including any further detention if the underpinning facts are within the
knowledge of that official. 70 It is the duty of the police official who has arrested a
person for purposes of having them prosecuted to give a ‘fair and honest statement
of the relevant facts to the prosecutor, leaving it to the latter to decide whether to
prosecute or not’. 71 Where there are no facts which justify further detention, the
investigating officer should inform the prosecutor accordingly, the purpose being to
eventually place the magistrate in an informed position to determine whether th e
66 It is a basic component of the rule of law that state functionaries, including the police, are
constrained by the principle of legality and may not exercise any power nor perform any function
beyond that conferred upon them by law: Mahlangu above n 3 para 26.
67 Singatha and Another v Minister of Police and Another [2015] ZAECBHC 19 (Singatha) para 42.
68 Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA) (Woji) para 32.
69 Singatha above n 67 paras 42, 43, as quoted by the full bench in National Director of Public
Prosecutions v Swarts [2018] ZAECPEHC 65 (Swarts).
70 Botha v Minister of Safety and Security, January v Minister of Safety and Security 2012 (1) SACR
305 (ECP) (Botha) paras 29–30, cited with approval in Mahlangu above n 3 para 40.
71 Minister of Safety and Security v Tyokwana [2014] ZASCA 130; 2015 (1) SACR 597 (SCA) para 40.
person should be detained further. 72 The defendants would be liable for post -
appearance detention where their wrongful and culpable conduct materially
influenced the decision of a court to remand the plaintiff in custody.73
[48] The evidence, as analysed above, does not support the claim that there was
an absence of evidence implicating the plaintiff in respect of the charges he faced, or
that there were no facts justifying further detention. Subs tantively, on the facts, there
was a just cause for deprivation of liberty. It was the state’s prerogative to charge the
plaintiff in the manner it saw fit, based on the facts at its disposal, even if there was
some uncertainty in this regard. 74 On the evidence, the defendants have
demonstrated that they did not act wrongfully in opposing the application for bail and
proceeding as they did.75
[49] In any event, and if this analysis is erroneous, the ad ditional charges were,
ultimately, not causally linked to the refusal of the application.76 Unlike cases such as
Woji, there is no need to speculate as to what the magistrate would have done had
the extra charges not been added. That is how the magistrate approached the
matter, so that the conduct of the police and prosecutor was not a sine qua non for
the continued detention. 77 The court’s decision was based on the strength of the
state’s case in respect of the firearm and ammunition charges and the plaintiff’s
failure to discharge his evidentiary burden. Considering that assessment, the
pending charge involving a firearm was highly relevant and it was not irregular for the
state to lead evidence in respect thereto in the way it did. To the extent that any
evidence was confusing or misleading, particularly given the plaintiff’s acquittal in a
separate matter involving a firearm before Stretch J, this could have been clarified by
plaintiff’s counsel during Booi’s cross -examination. Alternatively, it was open to the
plaintiff’s counsel during Booi’s cross -examination. Alternatively, it was open to the
plaintiff to appeal the magistrate’s judgment if the magistrate was deemed to have
over-emphasised this aspect in the enquiry, or to launch a bail application on new
facts if the evidence led regarding the pending charge had been erroneous or
72 Botha above n 70 paras 29–30.
73 Woji above n 68 para 27.
74 S 83 of the Act.
75 De Klerk above n 47 para 121, 122.
76 Woji above n 68 para 32; Nontsele above n 50 para 43.
77 Ibid.
misleading. None of this occurred. Any wrongful conduct on the part of the
employees of the defendant was not sufficiently clos ely connected to the loss for
legal causation to be established and for liability to follow as prayed.78
[50] In all thes e circumstances, the plaintiff’s continued detention cannot be
blamed on prosecutorial misconduct or over -zealousness on the part of the police to
ensure that the plaintiff remained in custody. Rather, following fair bail proceedings,
the magistrate exerci sed his discretion to refuse bail on the basis that the plaintiff
had failed to discharge the onus of establishing that the interests of justice warranted
his release. In any event, that decision, which was subsequently left unchallenged,
was not causally connected to the decision to add the extra charges or to the other
wrongful conduct alleged.
Malicious deprivation of liberty
[51] Acts done in excess of and without judicial process give rise to an action for
damages, without requiring proof of malice, but acts done under the sanction of
judicial process improperly obtained do not give rise to an action for damages unless
done maliciously and without reasonable and probable cause. 79 In other words, the
interposition of a judicial act is key in distinguishing unlawful and malicious
deprivation of liberty. Unlike wrongful deprivation of liberty, malicious deprivation of
liberty takes place under the guise of a valid judicial process and therefore involves
the imprope r use of the legal machinery of the state to effect the deprivation of
liberty. To succeed requires the plaintiff to prove on a balance of probabilities that
the defendant instigated the deprivation of liberty; that the instigation was without
reasonable a nd probable cause and that the person responsible for initiating the
prosecution acted with malice or animo iniuriandi .80 The test of breach of a legal
duty, or wrongful conduct, on the part of the defendants plays no part in the inquiry
duty, or wrongful conduct, on the part of the defendants plays no part in the inquiry
78 Ibid. Also see the recent full court decision in this Division in Minister of Police and Another v Payi
[2025] ZAECMKHC 74 para 46.
79 De Klerk above n 47 para 135 and following. The majority judgment took n o issue with these
sentiments in the context of an omission by the arresting officer at the first court appearance, but held
that the prior wrongful, negligent conduct of the arresting officer changed the position: para 19.
80 De Klerk above n 47 para 136, 137, read with Rudolph and Others v Minister of Safety and Security
and Another 2009 (5) SA 94 (SCA) para 19. In Rudolph, the court accepted that the proceedings were
initiated when the appellants, in that matter, were formally charged.
into allegations of malicious and collusion driven detention.81 Malicious deprivation of
liberty occurs when lawful restraint is inflicted upon a person’s liberty by means of an
act of law, unjustifiably, with an intention to injure, and with improper motive.82
[52] On this score, the pleadings allege that the police, particularly Sergeant Booi,
and prosecutors acted in concert to oppose bail maliciously in circumstances where
continued detention was unnecessary. In other words, that the continued detention
was driven by improper motive and / or was without reasonable and probable cause,
also resulting from a conspiracy between the police and prosecutors. This echoes
the pleadings considered by the SCA in Minister of Police v Nontsele (Nontsele).83
[53] As in Nontsele, however, the plaintiff never tendered evidence to prove the
collusion allegation. There was no evidence of discussions between prosecutors and
the police officials aimed at achieving refusal of bail or to secure the plainti ff’s further
detention. There is no evidence that the police were responsible for the decision to
instigate the continued deprivation of liberty. For that reason alone, the claim against
the Minister under this heading would fail. 84 The plaintiff also failed to demonstrate
absence of reasonable and probable cause, in the sense that the police and
prosecutors never had an honest belief, founded on reasonable groun ds, that bail
should be opposed and that his further detention was warranted. 85 The evi dence
reveals that the relevant employees of both defendants possessed information that
would lead a reasonable person to conclude that the plaintiff was probably guilty of
the offences for which he was charged, which the defendants believed to be the
81 Nontsele above n 50 para 38.
82 Nontsele above n 50 para 37, citing Moaki v Reckitt and Colman (Africa) Ltd and Another 1968 (3)
SA 98 (A).
83 Nontsele above n 50 para 36.
SA 98 (A).
83 Nontsele above n 50 para 36.
84 Minister for Justice and Constitutional Development v Moleko [2008] ZASCA 43 (Moleko) para 17.
85 Prinsloo and Another v Newman 1975 (1) SA 481 (A) at 495G –H. Not only must the defendant
have subjectively had an honest belief in the guilt of the plaintiff, but their belief and conduct must
have been objectively reasonable, as would have been exercised by a person using ordinary care and
prudence: Moleko above n 84 para 20. Whether there was reasonable and probable cause for the
prosecution depends on the facts or material wh ich was at the disposal of the prosecutor, at the time
that the prosecution was instigated, and the careful assessment of that information: Ledwaba v
Minister of Justice and Constitutional Development and Others [2024] ZASCA 17 (Ledwaba) para 24.
case.86 The plaintiff has failed to discharge the burden of proving that the deprivation
of liberty was without reasonable and probable cause.
[54] There was also no evidence to support any animus iniuriandi , with either
dolus directus or indirectus, on the part of either defendant’s employees, or proof of
consciousness of wrongfulness. 87 The true intention flo wed from the sighting of the
firearm in the plaintiff’s possession in the vehicle and the discovery of the
ammunition, which led to the lawful arrest. On this basis too, the claim stands to be
dismissed.88
[55] This is no reason to depart from the ordinary position in respect of costs.89
Order
[56] The following order is issued:
1. The plaintiff’s claim is dismissed with costs.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 30 November, 1 December 2023; 15 -17 April 2024;
23-24 July 2025
Heads received: 17, 26 September 2025
86 Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) para 14. This question must not be
confused with whether there is sufficient evidence upon which the accused may be convicted, or with
the decision to withdrew certain charges: Ledwaba above n 85 paras 24, 82.
87 The National Director of Public Prosecutions v Sijoyi Robert Mdhlovu [2022] ZASCA 85 para 19.
See Weitz v Goodyear SA (Pt y) Ltd and Others (2014) 35 ILJ 441 (ECP) para 27 and the authorities
cited there: animus injuriandi encompasses dolus, whether dolus directus or dolus indirectus; Cf
Nontsele above n 50 para 39. Also see Ledwaba above n 85 para 22.
88 Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) at 135–136.
89 See Minister of Safety and Security and Another v Schuster and Another [2018] ZASCA 112.
Delivered: 28 October 2025
Appearances:
For the Plaintiff: Adv T Coto / Mr PV Magqabi
Instructed by: Magqabi Seth Zita Inc
East London
c/o Bululu Nabo & Xaso Attorneys
Qonce
For the Defendant: Adv T Mqobi
Instructed by: The Office of the State Attorney
East London