SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MTHATHA
Case no: 3006/2022
In the matter between:
ELFORD NKOSINATHI BASTILE Plaintiff
and
MINISTER OF POLICE First Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
ZILWA AJ
Introduction
[1] The plaintiff has instituted three distinct claims, as provided for by actio
injuriarum, against the first defendant for wrongful and unlawful arrest on the one
hand, claim A, and on the other for wrongful and unlawful detention as well as
malicious prosecution against both defendants, claim B and C. All the three claims
are defended by the respective defendants.
[2] Each party adduced oral evidence in support of t heir respective cases. The
contents of the police docket entailing the criminal case against the plaintiff in the
Bityi Magistrate’s Court was discovered inter partes in terms of the Uniform Rules
and they were also referred to, during trial. The plaintiff was the only witness in his
case. On behalf of the first defendant, Sergeant Somthi -Flanis (‘ Somthi’), came
forward to testify as the arresting officer. Mr Dwakaza and Mr Komanisi, employees
of the second defendant as district and regional court prosecuto rs respectively,
testified as second defendant’s witnesses.
Facts
[3] On 13 January 2020 at around 15H00 along the N2 national road, near
Mthatha Ultra City, the plaintiff was arrested on board a bakkie ferrying passengers
en route to his rural area of Msana Location, KwaNdaba Administrative Area in
Mthatha (‘Msana’). Two police bakkies stopped the vehicle in which the plaintiff was
travelling, and a police officer came out of the vehicle in company of the
complainant. The police officer asked from the c omplainant the name of the person
who allegedly violated her sexually, and the latter called the name of the plaintiff.
The police officer shouted that the person by the name of ‘ Nkosinathi’ should get out
of the bakkie. The plaintiff came out of the bakkie, and the police officer informed him
that he was under arrest. This was a warrantless arrest.
[4] The plaintiff was instructed to take off his shoelaces and belt and he was
loaded at the back of the police van and was transported to Bityi Police Station. After
loaded at the back of the police van and was transported to Bityi Police Station. After
his first appearance on 15 January 2020, the matter was postponed by agreement
with Ms Mtwesi, plaintiff’s legal representative, to 20 January 2020 for a formal bail
application. The bail was opposed by the State because the plaintiff was facing an
offense falling under Schedule 5. The bail was refused and he remained in custody
for a period of 474 days until he was found not guilty on 15 April 2021.
[5] The plaintiff pleaded tha t this his arrest took place at or near Msana 1 by
members of the South African Police Services having been accused of rape of and
assault with intent to do grievous bodily harm to one N[...] T[...] (‘complainant’).2
[6] In a nutshell, the first de fendant’s case is that the docket was received by
Somthi on 13 January 2020 at 12H00. She proceeded to Sinawe Centre at Mthatha
General hospital (‘ Sinawe’) where she interviewed the complainant who was being
examined by the doctor. The complainant informed her that one Nkosinathi Bastille
pushed her door, broke it, assaulted and raped her. She noticed that the
complainant’s upper lip was swollen. She got information that the accused was
travelling from Mthatha town to Msana and she asked for a backup. She d rove
together with some other officials who were coming from Bityi police station. They
stopped the bakkie and introduced themselves to the driver. The complainant
pointed out the plaintiff as the perpetrator and it was at that stage that he was
informed of his rights as listed in the pocketbook. He was arrested without a warrant.
Somthi did not experience any difficulty with the identity because the plaintiff was
positively identified by the complainant. She used her discretion when arresting the
plaintiff and handing him to police officers from Bityi police station for detention.
[9] The second defendant’s case is that the prosecutor, Mr Dwakaza, considered
the complainant’s statement which revealed that she was sure that it was the plaintiff
who entered her house. She narrated her ordeal to one Loyiso Matebele
(‘Matebele’), namely, that the plaintiff assaulted and raped her. The prosecutor did
note the difference in dates between the statement of the complainant and that of the
note the difference in dates between the statement of the complainant and that of the
report she gave (‘first report’) and he did not regard the difference as material and as
such it did not affect his decision to enroll the matter. When considering the
complainant’s statement as a whole, he noted that when she narrated the first report,
1 Albeit that the plaintiff’s evidence was that the arrest took place on the N2 National Road near Mthatha Ultra City. Under
cross-examination, he further raised an issue that the police should have waited for him to get home before arresting him.
2 Albeit that the plaintiff’s evidence was that he was never informed about the reasons for his arrest during his Mthatha Ultra
City arrest.
she was not covered with a do ek on her head, her upper body was naked and her
breasts were exposed, she had nothing on her feet, she was crying, very shocked
and her upper lip was swollen. He did not see the complainant as a person who was
making up a story. He also considered the sta tement of Somthi and concluded that
the complainant was not in doubt, as she pointed out the plaintiff among other
people and therefore it cannot be said that she was influenced. The report by the
doctor was also considered and it confirmed that the compla inant was not making up
a story. The doctor also noted the swollen upper lip and concluded that a penetration
cannot be excluded. The prosecutor had an honest belief that the accused was
implicated.
[10] While admitting the plaintiff’s arrest and subsequent detention, the first
defendant, in his plea, denied that his arrest and detention were unlawful. He
pleaded that the plaintiff’s arrest ‘was justified in terms of section 40(1) of the
Criminal Procedure Act 3 (‘the CPA ’), as there was a reasonab le suspicion that he
had committed an offence of rape and housebreaking. The first defendant further
contends that the arrest was warranted, and the police officers were justified to
arrest the plaintiff without a warrant and that, due to seriousness of th e offence, the
police officer had no authority to release and/or warn him to appear in court.
[11] In denying liability for the claim of malicious prosecution, the second
defendant, admitted that her employees prosecuted the plaintiff. She contended in
her plea that, after perusal of the police docket, prosecutors established a prima
facie case. She further denied that the matter was enrolled without any reasonable
cause and with intent to injure the plaintiff.
Issues
[12] The primary issues for determination as defined in the Rule 37 minute are: (a)
whether the first defendant could be held liable for the plaintiff’s unlawful arrest,
whether the first defendant could be held liable for the plaintiff’s unlawful arrest,
detention and malicious prosecution; (b) whether the arresting officer entertained a
reasonable suspicion that the pla intiff had committed the offence with which he had
3 51 of 1977
been charged; and (c) whether the second defendant could be held liable for the
plaintiff’s unlawful detention and malicious prosecution.
The law
[13] Our law provides that a person may only be arrested and detained without a
warrant authorizing his arrest in circumscribed instances, which the CPA sets out in
section 40. At the centre of the present claim are the provisions of section 40(1)(b),
in terms of which a peace officer may arrest a person without a warrant if he
entertains a reasonable suspicion that the person committed an offence listed in
Schedule 1.
[14] The facts which must be established for the justification of an arrest effected
in terms of section 40 (1)(b) were set out in Duncan v Minister of Law and Order4 , as
being that: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a
suspicion; (iii) the suspicion must be that the suspect (the arrestee) committed an
offence referred to in Schedule 1 of the CPA; and (iv) the suspicion must rest on
reasonable grounds.
[15] The test for the reasonableness of the grounds of suspicion on which the
arrest is effected, was laid down in Mabona and Another v Minister of Law and Order
and Others5, where the court held:
‘[T]he 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 not certainty. However, the suspicion must be based upon solid
grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.’
4 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H.
4 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H.
5 Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658G-H.
[16] Section 60(11)(b) of the CPA has the following provisions:
‘… in Schedule 5, but not in Schedule 6, 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.’
[17] In a claim for malicious prosecution, in order to succeed, the plaintiff must
allege and prove that (a) the defendants set the law in motion (instigated or instituted
the proceedings); (b) the def endants acted without reasonable and probable cause;
(c) the defendants acted with ‘malice’ (or animus injuriandi ); and (d) that the
prosecution has failed.6
[18] In Willie’s Principles of South African Law 7, the learned author had the
following to say:
‘… the person who set the law in motion is not liable for the resulting loss if he or she
acted in good faith. The actio iniuriarum comes into play where the legal proceedings
are instituted without reasonable and probable cause and it i s done with an improper
motive or with malice.’
[19] It bears mentioning that, as a starting point, a court that is called upon to
determine the lawfulness of a warrantless arrest under section 40(1)(b) of the CPA,
does no more than to consider the facts that were at the disposal of the arresting
officer at the time of the arrest. In order to achieve that, it measures the conduct of
the police officer(s) against the standard of reasonableness - the question being
6 Minister for Justice & Constitutional Development v Moleko 2009 (2) SACR 585 (SCA), para 8; Minister of Safety and Security
v Lincoln 2020 (2) SACR 262 (SCA).
7 9th Edition, p. 1192; Also see: The Stair Memorial Encyclopaedia Vol. 15, para 453, quoted in Willies book, the following
appears:
“Prosecuting or procuring prosecution without probable cause may go a long way towards proving the existence of
malice, though the existence of malice is not proof in itself of the absence of probable cause.”
whether reasonable police officer(s) faced with such facts, would entertain a
suspicion that the plaintiff was involved in the commission of a Schedule 1 offence.
[20] The above principles constitute the basic legal framework for the present
matter. A summary of the evidence led is as follows:
Plaintiff’s evidence
[21] The plaintiff testified that on 13th January 2020 at about 15H00 near Ultra City
garage, which is situated along the N2 road, while on a van ferrying passengers to
his rural area of Msane, coming from town, he was arrested by mem bers of the
South African Police Services in uniform driving two marked police vans. The arrest
was carried out in full view of the members of the public as well as other passengers
who were on the same vehicle he was in.
[22] One of the police vans bloc ked the way of the vehicle he was in, forcing it to
stop and the other police vehicle stopped behind it. A police officer who alighted from
the police van that stopped behind them was in company of the complainant. The
police officer asked from the complainant the name of a person who violated her and
in response, the complainant responded and shouted his name saying it's
‘Nkosinathi Bastile’. The police officer who was with the complainant shouted that the
person by the name of Nkosinathi should get out of the vehicle. He had no choice
but to comply and he requested one of the passengers to look after his groceries.
[23] As he got out of the vehicle, the police told him that he was under arrest, and
they arrested him without a warrant. He asked for the re asons for his arrest, but he
was told by the police that he knew what he did. In full view of the passengers and
onlookers, the police instructed him to take off his shoelaces and belt and he was
loaded at the back of the police van to Bityi police station . At Bityi police station, he
was placed in the holding cells and interviewed and that is where he disputed the
allegations.
[24] The police charged him with assault with intent to do grievous bodily harm
and rape, being the charges he faced at the Bityi District Court. He appeared before
court for the first time on 15 th January 2020, where the bail was opposed and the
case was postponed 20 th January 2020 for profiling and bail. He was remanded in
custody and transferred to the Mthatha Correctional Centre . The matter was
ultimately transferred to the Mthatha Regional Court.
[25] He contended that his case was enrolled without minimum evidence and he
was maliciously prosecuted. He was detained at the instance of both defendants and
he felt abused and his rights were infringed.
[26] Under cross-examination by the first defendant, the plaintiff was asked about
the complainant’s injuries (swollen upper lip) that were confirmed by the doctor. He
did not have any comment. Even the court asked him about the doctor’s findings that
a penetration cannot be excluded, and he did not have any comment.
[27] Under cross-examination by the second defendant, the plaintiff admitted that
his name is mentioned in the complainant’s statement as the person who broke her
door, entered her room, assaulted and raped her. The plaintiff understood that
breaking into someone’s house, assaulting and raping someone are all criminal
offences. He further understood that the police and prosecutors were expected to do
their job as facts w ere contained in the statements and medical report. He further
confirmed that there was no animosity between him and the complainant before the
incident.
First defendant’s evidence - Somthi
[28] She is holding a rank of a Sergeant attached to the Family Violence Child and
Sexual Offences Unit. On Monday, 13 January 2020, she received information about
the case opened at Bityi police station under Cas No. 60/01/ 2020 regarding rape of
an elderly wo man. She contacted Bityi police station for more information and she
received a response that the victim was at Sinawe.
[29] She was informed that the complainant was due to attend a medical
examination at Sinawe and that is where she met and interviewed her whilst the
doctors were conducting medical examinations. According to the information she
received from the complainant, t he complainant knew the perpetrator to be Mxhosa
Nkosinathi Bastile. Whilst still interviewing the complainant, she received a call or
information that the person suspected as having raped the complainant is on the taxi
from town to Msane. She asked for a backup and proceeded with Warrant Officer
Timakwe and Constable Mdutshane to assist, together with the complainant.
[30] The vehicle was stopped, and the complainant identified the plaintiff who was
at the back of the van. She and other members introduce d themselves and read the
information about the arrest through her pocketbook. She handed over the plaintiff to
Captain Mshumi for detention at Bityi police station with no visible injuries.
Second defendant’s evidence – Lindile Dwakaza
[31] He has been working for National Prosecuting Authority for 12 years. On 15
January 2020 he was on duty at Bityi District Court and he received a police docket
relating to this matter. He acquainted himself with the contents of the docket and
considered the facts as well as statements including the expert report.
[32] Among the statements he considered was the complainant’s statement who
stated that her house was forcefully opened by the plaintiff who approached her,
punched her with a fist, and inserted his penis in her private parts. The statement
revealed that the plaintiff was the complainant's neighbor. He mentioned the
elements of housebreaking, assault and rape and testified that he concluded that the
elements of all these offences were contained in the complain ant’s statement and
that the complainant did not consent to sexual intercourse.
[33] He also considered the statement of Matebele which revealed that the plaintiff
[33] He also considered the statement of Matebele which revealed that the plaintiff
entered the complainant’s house and that the latter informed Matebele that the
plaintiff h ad assaulted and raped her. He further testified that he noticed the
difference in dates between the statement of the complainant and that of Matebele
and he did not regard the difference as material and therefore it did not affect his
decision to enroll the matter.
[34] He further testified that when he viewed the complainant’s statement, it
revealed that when the complainant was doing the first report, her head was not
covered, her upper body was naked with her breast exposed, she had nothing on her
feet, she was crying, very shocked and her upper lip was swollen. He did testify that
he did not see the complainant as the person who was making up a story.
[35] He further considered the statement of Somthi and concluded that the
complainant was not in do ubt as she pointed out the plaintiff among other people
and therefore it cannot be argued that the complainant was influenced. He also
considered the doctor's report, J88, which also confirmed that the complainant was
not building up her evidence. The repo rt by the doctor showed that he also noticed
that the upper lip was swollen and his conclusion was that penetration cannot be
excluded.
[36] He further testified that he had an honest belief that the accused was
implicated and that the criminal case coul d not have proceeded to the final stage if
there was no evidence. Section 174 of the CPA could have been applied for if there
was no prima facie case against the plaintiff.
Luvuyo Komanisi’s evidence
[37] He testified that charges against the plaintiff in the District Court were rape
and assault with intent to do grievous bodily harm. He decided to add the charge of
housebreaking with intent to rape and with rape. He considered all the statements
contained in the docket and the essentials of a charge she et were present. All
elements of rape and house breaking were covered, the name of the perpetrator was
mentioned, and he was well known to the complainant as they were neighbors.
[38] According to him, the complainant reported the matter to the neighbors
promptly. He considered the medical report as well as conclusions by the doctor
promptly. He considered the medical report as well as conclusions by the doctor
which did not exclude sexual penetration and, in his opinion, the doctor would have
indicated if there was no penetration. He considered the finding to the effect that the
complainant’s hymen was perforated.
[39] He testified that the identity of the accused was not an issue. Even though he
mentioned in the statement of Matebele that he was attacked by ‘ Isihange’, the
plaintiff also mentioned, in the same statement, the name of the plaintiff and there
was no additi onal statement. In fact, the statement by Matabele mentioned that the
complainant was attacked by ‘ Isihange’ which means ‘the intruder’ or ‘the unknown
person’, according to him.
[40] He testified that he consulted the complainant and established consist ency
with her statement, the identity of the perpetrator and that she corroborated the issue
of Isihange. He further testified that the State was happy with the evidence and
proceeded without the DNA as DNA constitutes circumstantial evidence, in his view.
He further testified that the request for DNA results becomes necessary when
identities are unknown or the victim is the child or the victim is mentally retarded and
when there is no sufficient evidence against the perpetrator.
Analysis
[41] As intimate d above, the enquiry here should be, objectively speaking, what
information Somthi had at her disposal when she effected the arrest and did that
information, objectively speaking, empower her to arrest and detain the plaintiff as
she did. In the final anal ysis the question ought to be, would a reasonable police
officer, armed with the same information, which was within the knowledge of Somthi
at the time of arrest, have arrested the plaintiff?
[42] The law on unlawful arrest and detention is set out in ter ms of legislation.
Section 12(1)(a) of the Constitution8 provides:
‘Everyone has a right to freedom and security of the person, which includes the right
–
8 Act 108 of 1996
a) Not to be deprived of freedom arbitrarily or without just cause;’
[43] Section 40(1)(b) of the CPA provides that:
‘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 than the
offence of escaping lawful custody’.
[44] In Minister of Law and Or der and Others v Hurley and Another 9 the Court
held:
‘An arrest constitutes an interference with the liberty of the individual concerned, and
it therefore seems to be fair and just to require that the person who arrested or
caused the arrest of another person should bear the onus of proving that his action
was justified in law.’
[45] In Shaaban Hussein and Others v Chong Fook Kam 10, Lord Devlin had an
occasion of stating the following:
‘Suspicion in its ordinary meaning is a state of conjuncture or surmise where
proof is lacking; “I suspect but I cannot prove”. Suspicion arises at or near the
starting-point of an investigation of which the obtaining of prima facie proof is
the end . . . Prima facie proof consists of admissible evidence. Suspicion can
take into account matters that could not be put in evidence at all . . .
Suspicion can take into account also matters which although admissible could
not form part of a prima facie case.’
[46] In Biyela v Minister of Police11 Musi AJA stated:
‘The question whether a peace officer reasonably suspects a person of
having committed an offence within the ambit of s 40(1)(b) is objectively
9 Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A)
10 Shaaban Hussein and Others v Chong Fook Kam [1969] UKPC 26; [1969] All ER 1626.
11 Biyela v Minister of Police 2023 (1) SA 235 (SCA) at paras [33] to [35]
justiciable. It must, at the outset, be emphasised that the suspicion need not
be based on information that would subsequently be admissible in a court of
law. 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.
Whether the suspicion was reasonable, under the prevailing circumstances,
is determined objectively. What is required is that the arresting officer must
form a reasonable suspicion tha t a Schedule 1 offence has been committed
based on the credible and trustworthy information. Whether that information
would later, in a court of law, be found to be inadmissible is neither here nor
there for the determination of whether the arresting officer at the time of arrest
harboured a reasonable suspicion that the arrested person committed a
Schedule 1 offence.’
[47] In casu, the plaintiff’s identity was not in dispute to the extent that, apart from
the fact that they were neighbours, they were als o related. When the arresting
officer, accompanied the complainant, went to the plaintiff, the latter was able to
identify him amongst other passengers without hesitation. This cannot be denied.
Further information was received that the plaintiff was on th e way from town to his
homestead and that he was preparing to abscond to the Western Cape.
Investigations led to the vehicle he was travelling on, which was stopped next to
Mthatha Ultra City and upon arrival, the complainant positively identified the plai ntiff
as her assailant.
[48] Considering that rape is listed as a Schedule 1 offence in terms of section 40
(1)(b), an arrest may be effected without a warrant of arrest. Armed with all this
information, especially the positive identification of the plai ntiff as the perpetrator by
the complainant, the arrest was effected. I find no basis to the contention that the
the complainant, the arrest was effected. I find no basis to the contention that the
investigating officer failed to analyse and assess the information at her disposal
critically. This is not a case of - arrest first - and - investigate later. An interview with
the complainant was held before she accompanied the arresting officer and pointed
out the plaintiff as her assailant. This, in my view, is what a reasonable investigating
officer would have done.
[49] I understand that th e first defendant had a duty whether or not to detain after
the arrest and that includes applying of mind. 12 I am satisfied that Somthi properly
exercised her discretion in this regard after taking into account the seriousness of the
offence, the fact that the complainant and the plaintiff were neighbours and the age
of the complainant who was residing alone. It cannot be argued therefore that the
decision to detain was malicious.
[50] Regarding further detention after the plaintiff appeared in court and remanded
in custody, he has claimed such damages against the defendants even though that
detention was at the court’s instance. In this regard, the Supreme Court of Appeal in
Minister of Safety and Security v Sekhoto and Another 13 held that the role of the
police officer/s becomes exhausted after bringing the suspect before the court and
the role for determination of further detention pending trial is one of the court.
[51] In any event, a contention was made by the first defendant to the effect that
the community was against the plaintiff’s release on bail. This was never challenged
by the plaintiff. At all material times, the plaintiff was legally represented in court and
his case was always postponed in consultation and in agreement with his legal
representative. Nowhere from the records does it appear that his legal representative
was opposing further adjournments of the matter on the basis that he wanted to
apply for bail. Even after the bail was refused, no appeal was brought against such
refusal and there was no bail on new facts.
[52] Regarding the issue of malicious prosecution, I am not persuaded that the
plaintiff led evidence, the upshot of which is that the first defendant was not in
possession of sufficient evidence to charge the plaintiff for rape and housebreaking.
In Ledwaba v Minister of Justice and Constitutional Development and Correctional
Services and Others14, the Supreme Court of Appeal held as follows:
Services and Others14, the Supreme Court of Appeal held as follows:
12 Mvu v Minister of Safety and Security and Another 2009 (6) SA 82 (GSJ); Hofmeyr v Minister of Justice and Another 1992
(3) SA 108 (C)
13 Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) at para 44
14 Ledwaba v Minister of Justice and Constitutional Development and Correctional Services and Others 2024 JDR 0623 (SCA)
(referring to Beckenstrater v Rottcher and Theunnissen 1955 (1) SA 129 (A) at 135 – 136)
‘When it is alleged that a defendant had no reasonable cause for prosecuting, I
understand this to mean that he did not have such information as would lead a
reasonable man to conclude that the plaintiff had probably been guilty of the offence
charged; If d espite his having such information, the defendant is shown not to have
believed in the plaintiff’s guilt, a subjective element comes to play and disproves the
existence, for the defendant, of reasonable and probable cause.’
[53] At paragraph 24 15, the court further held that, to the extent that Ledwaba
wanted to justify his action and prove his innocence, that is not the test for
reasonable and probable cause in a malicious prosecution. Whether there was
reasonable and probable cause for the prosecution depends on the facts or material
which was at the disposal of the prosecutor, at the time that the prosecution was
instigated, and careful assessment of that information.
[54] Save for the bare denial, no exculpatory evidence was ever proffered by the
plaintiff at the time of the arrest, something that would have necessitated Somthi to
investigate further before effecting arrest.
[55] The plaintiff further failed to lead evidence and prove that the suspicion
formed by Somthi was improperly formed and that her discretion was for an improper
objective. In Groenewald v Minister van Justisie16, it was held that:
‘Once the jurisdictional facts of the existence of the reasonable suspicion is proved
by the defendant, the arrest is brought within the ambit of the enabling legislation and
thus justified. If it is alleged that his suspicion was improperly formed, it is for the
party who makes the allegation to prove it. There is no reason to deviate from the
general rule that the party who attacks the existence o f discretion where the
jurisdictional, bears the honors of proof.’
[56] In my view, the first defendant had established that there were reasonable
[56] In my view, the first defendant had established that there were reasonable
grounds to suspect that the plaintiff had committed the Schedule 1 offence, rape,
assault with intent to do grievous bodily harm and housebreaking. Based on the
15 Ibid
16 Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at 884. Also see: Sekhoto (supra) para 45 – 49; Barnard v Minister
of Police & Another 2019 SACR 362 (ECG) at para [43] to [48]
evidence presented, I am satisfied that, regarding the claim of unlawful arrest of the
plaintiff, the arresting officer, Somthi, acted on a reasonable suspicion as required by
section 40(1)(b) of the CPA and had reasonable grounds to believe that the plaintiff
had committed a Schedule 1 offense. Furthermore, I find no basis to conclude that
the discretion to arrest was improperly exercised. Accordingly, I find that the arrest
and detention of the plaintif f were lawful and there was no malice. As a result, the
claims for unlawful arrest and detention and malicious prosecution must fail.
[57] Reverting to question of whether prosecution was malicious it is important to
understand that malice, in this contex t, talks to the mental state of the prosecutor as
the decision maker. This refers to circumstances where animus iniuriandi is
established and has been shown to exist. Secondly, there must be consciousness of
wrongfulness on the part of the decision maker. Both these factors must exist. In
Moaki v Reckitt & Colman 17 it was held that it is for the plaintiff to allege and prove
that the defendant had necessary intention to cause him injury, either in the form of
dolus directus or dolus eventualis.
[58] In Moleko18, at paragraph 11, the SCA mentioned that the prosecution
occurred at the instance of the DPP and that the role of the police was merely to
gather relevant information. In paragraph 28, it is important to note that the SCA
mentioned that when they assessed malice, they noted that prosecutor did not know,
and did not know of, never had any dealings with the plaintiff. The SCA also
emphasized that animus iniuriandi must be proven. It is not only intention to injure
but also the consciousness of wrongfulness of the prosecution.
[59] Lastly, in the case of NDPP and Mdhlovu 19, the main question to be
answered, in paragraph 19, was whether the onus of proof has been discharged,
proving the lack of reasonable and probable cause to prosecute and that prosecution
proving the lack of reasonable and probable cause to prosecute and that prosecution
was instituted animo iniuriandi . The SCA specifically referred, at paragraph 20
17 Moaki v Reckitt & Colman (Africa) Ltd and Another 1968 (3) SA 98 (A)
18 Supra
19 NDPP and Mdhlovu 2024 JDR 2282 (SCA)
thereof, to an old case of Prinsloo and Another v Newman 20 where the court found
that reasonable and probable cause can be explained as follows:
‘In Prinsloo and Another v Newman, this Court discussed the concept of reasonable
and probable cause for prosecution in the context of malicious prosecution. The
Court held that the test for reasonable and probable cause is an objective one. It is
not based on the subjective be liefs or motives of the prosecutor. Reasonable and
probable cause exists if a reasonable person would have concluded that the accused
was probably guilty on the facts available to the prosecutor at the time.”
[60] They took it further and concluded that a prosecutor need not have evidence
establishing a prima facie case or proof beyond a reasonable doubt when deciding to
initiate a prosecution. Suspicion of guilt on reasonable grounds suffices. It is
therefore my finding that, based on the evidence of the docket and the interview with
the complainant, the suspicion of guilt was there and the first and second defendants
acted upon this evidence with reasonable grounds. I accepted the evidence of the
arresting officer and prosecutors as credible. The ‘not guilty’ finding does not negate
in this instance the earlier decision to prosecute.
[61] In paragraph 38 of Mdhlovu, the court emphasized that prosecutors must be
free to pursue cases they believe have merit without undue fear of adverse
consequences, provided they act rationally, honestly and without improper motives.
In casu, the plaintiff did not discharge the onus o f proving the essential elements of
his claim for malicious prosecution. For the plaintiff to be successful, all the
requirements must be cumulatively in existence. Having found that not all the
requirements of the claim has been satisfied, I accordingly f ind that the plaintiff
cannot succeed. In my view, considering all the available evidence and all the facts,
the criminal charges were not only reasonable but also justified.
the criminal charges were not only reasonable but also justified.
[62] For what it is worth, I want to deal pertinently with the issue that the p laintiff’s
counsel raised regarding the report that the complainant gave shortly after the
incident. As per the statements contained in the docket, the complainant reported the
incident to Matebele, Thembisa Gqwangqa and Chief Matiso. The plaintiff took an
20 Prinsloo and Another v Newman 1975(1) SA 481 (A)
issue about the fact that the complainant only mentioned assault when he reported
to the Chief and he did not say anything about rape. She only mentioned rape when
she was probed by the Chief if it was only the assault that happened. Ms Gwangqa
pulled her on the side and asked what had really happened and it was at that stage
that she mentioned that the plaintiff also raped her. As a result of this the plaintiff
argues that the plaintiff was influenced by the Ms Gwangqa to lay a complaint of
rape. I disagree. My disagreement is based on the following:
62.1 One has to bear in mind that the plaintiff had undergone a devastating
experience which, understandably, took a toll on her state of mind.
Under these circumstances, it is reasonable to expect that the
complainant was nervous and could not have been in a position to
narrate everything.
62.2 One has to bear in mind that we live in a society where victims of
sexual violence get killed so as to eliminate evidence. It would
therefore be unrealistic to close eyes to the possibility that the
complainant was not completely free to narrate what had happened,
with fear of possible eventualities.
62.3 One should also bear in mind that it is expected that a female that has
been sexually violated may be feel embarra ssed and not feel free to
narrate such details especially to a male. Research explains the state
of mind of a woman who has been sexually violated, towards men. For
this reason, it is not far -fetched to expect that the complainant might
have had a differen t feeling towards males after her ordeal, and that
could have caused her not to be comfortable infront of the Chief until
she was probed by Ms Gwangqa.
Costs
[63] The general rule in matters of costs is that the successful party should be
awarded costs , and this rule should not be departed from except where there are
good grounds for doing so. I can think of no reason why I should deviate from this
general rule. I find that the first defendant successfully discharged his onus to justify
the plaintiff’s arrest and detention. The plaintiff has failed to discharge his onus to
prove that his prosecution was malicious. The plaintiff’s action falls to be dismissed
with costs as there are no reasons advanced as to why costs should not follow the
result.
[64] Resultantly, the following order is made:
64.1 The plaintiff’s claim against the first defendant for unlawful arrest and
detention as well as malicious prosecution is dismissed.
64.2 The plaintiff’s claim against the second defendant, is dismissed.
64.3 The plaintiff is ordered to pay the cost of suit on a party -and-party basis, in
terms of Scale B.
_________________________
H ZILWA
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
For Plaintiff : Adv M C Manana
Instructed by : B. Mwelase Attorneys, Suite 319, 3rd Floor, ECDC
Building, York Road, Mthatha
For First Defendant : Adv LL Sambudla
Instructed by : The State Attorney, 94 Sissions Street, Fortgale
Mthatha
For Second Defendant : Adv NO Nhantsi
Instructed by : The State Attorney, 94 Sissions Street, Fortgale,
Mthatha
Date Reserved : 25 July 2025
Date Delivered : 04 November 2025