SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 612/2019
Reportable: Yes
In the matter between:
ZIENEDIEN NURI HASSIEN Plaintiff
and
MINISTER OF POLICE FOR THE
REPUBLIC OF SOUTH AFRICA 1ST Defendant
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 2nd Defendant
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICE FOR RSA 3rd defendant
THE HONOURABLE MISS MFOBO
(THE REGIONAL COURT MAGISTRATE,
MTHATHA) 4th Defendant
JUDGMENT
ZONO AJ:
Introduction
[1] He who claims proves, and not he who denies1. The basic rules governing
the incidence of onus of proof have been set out in the case of Pillay v
Krishna referred to above in the following way:
“(a) if one person claims something from another in a court of law,
then he has to satisfy the court that he is entitled to it.
(b) Where the person against whom the claim is made is not content with a mere
denial of that claim, but sets up a special defence, then he is regarded quo ad
that defence, as being the claimant: for his defence to be upheld he must satisfy
the court that he is entitled to succeed on it.
And
(c) He who asserts, proves and not he who denies, since a denial of a fact cannot
naturally be proved provided that it is a fact that is denied and that the denial
is absolute.”
[2] Central to this matter is the parties’ duties to discharge their duties of proof.
Antecedent to the issue of onus of proof, I deal with parties’ cases and
evidence.
[3] The plaintiff instituted the instant action for damages arising from
plaintiff’s arres t and detention that apparently occurred on 10 th August
2013 at Bhongweni Location of Zimbane Administrative Area, Mthatha.
The second claim relates to the plaintiff’s prosecution both in the district
and the regional court, Mthatha. The plaintiff asserts that in both claims
defendant’s conducts were malicious. The precise assertion is that the
plaintiff was maliciously arrested by the members of the South African
Police Service (SAPS) hence citation of the first defendant 2. He further
asserts that the first, second and fourth defendants set the law in motion,
1 Pillay v Krishna and another 1946 AD 946 at 951-2.
2 Section 2 of State Liability Act 20 of 1957 as amended.
thereby exposing him to malicious prosecution. In a nutshell they are
responsible for his prosecution which he considers it to be malicious.
[4] It is prudent to mention other historical steps of the case. Initially the
plaintiff instituted a claim for unlawful arrest and detention on 08 th
February 2019. Upon filing of the first defendant’s special pleas relating to
the prescription and non -compliance with section 3 of Act 40 of 2002
(failure to give statutory notice) the claim was amended to be a claim of
malicious arrest and detention. Consequently, a claim of unlawful arrest
and detention was withdrawn together with first defendant’s special pleas.
My views about the prescription of the claim relating to malicious arrest
are of less significance3.
[5] The parties agreed that the plaintiff bears the onus of proof and duty to
begin in all the claims. The plaintiff tendered his evidence in an attempt to
discharge his duty and onus. He was the sole witness to support his case.
[6] The plaintiff testified that on 10 th August 2013 he was running a spaza
shop in Mr B[...]’s premises at Zimbane Administrative Area, Mthatha. On
the said day he was approached by Mr B[...] advising him that he had raped
his child and he denied that. Mr B[...] then told the plaintiff that he would
be arrested for raping his child and the plaintiff continued to deny having
committed that crime. Mr B[...] requested him to give him R20 000.00 for
what he did. Plaintiff apparently refused. Twenty to thirty minutes later
the police officers arrived and sought confirmation if he was Julius and the
3 Section 17 of Prescription Act no 68 of 1969.
plaintiff confirmed. He was instructed to come out of the shop as he was
being arrested and he obliged, but still denying that he committed the
offence. He was thereafter taken to Central Police Station. At the Police
Station finger prints were taken and he was then detained in the police cells
until 13th August 2013 when he first appeared in court. On 13 th August
2013 the matter was postponed for plaintiff’s interpreter. Only when the
interpreter became available that the plaintiff was advised by the court
about the charges he was facing. I may interpose and state that the plaintiff
is person of Ethiopian origin. He required even in this court an Amharic
Interpreter.
[7] The Plaintiff was informed of the charges he was facing: that he is facing
charges of rape of a minor child, and he denied having committed such an
offence. He thereafter appeared four times in the district court and on the
fourth time the matter was transferred to the regional court. In the regional
court the matter proceeded before Ms Mfobo, who is a regional court
Magistrate. According to him the child testified that she was raped by the
plaintiff while the doctor who examined the child testified that the child
was not raped. The plaintiff testified further that he was convicted by the
fourth defendant for an offence (rape) he did not commit for twelve (12)
years in prison. He thereafter appealed the judgment and the regional court
judgment was set aside. His appeal was successful.
[8] In cross examination by Adv Simoyi SC, Counsel for the first defendant
(Police) the Plaintiff confirmed that the police officer who arrested him did
not know him and did not have personal issues with him. When the police
officer received the complaint, he attended to it and when he arrived at the
plaintiff’s place, which is the same place where the alleged rape took place,
the arresting offi cer met with Mr B[...], the father of the child allegedly
raped, who told the arresting officer that the plaintiff was the suspect. He
further confirmed that without the information from B[...], the police would
not have acted or arrested the plaintiff. He also confirmed that he was
arrested because of the information received from Mr B[...] that he raped
the child. He could not dispute that the statements were taken at the police
station from Mr B[...] and the child. The plaintiff was charged at the police
station and the docket was taken to the prosecutor for decision. It was not
the role of the police to take a decision to prosecute or not. The plaintiff
confirmed that he was taken to court and applied for bail which was
refused.
[9] Under cross examination by Adv Ncalo, Counsel for the second defendant
(NPA) the plaintiff re -emphasized that he was arrested, prosecuted and
altimately convicted for a crime he did not commit. Doctor’s report stated
that the child was not raped. The prosecutors ought not have prosecuted on
the basis of the information available in the docket. He stated that the
prosecution was unfair and baseless with the resultant judgment being
unlawful as that was confirmed by the success of his appeal. He repeated
his testimony when cross examined by Adv Matanda, Counsel for the third
and fourth respondent.
[10] Ideally it would be to this evidence I would have to look to determine if
the plaintiff had made out a prima facie case on his claim for malicious
arrest and detention against the fir st defendant; malicious prosecution
against the first and second, the fourth defendant 4. However, the
defendants called their evidence to support their respective cases.
[11] The first defendant who is cited on the basis of vicarious liability for th e
wrongs of the police called the evidence of Mr Khulebona Isaac
Mkhamkelwa who was a Warrant Officer in the SAPS before his
retirement. On 10 th August 2013 he was stationed at Mthatha Central
Police Station performing charge office duties (CSC), which al so entails
attending complaints outside of the police station. When he was on duty on
that day he received a radio control call instructing him to attend a
complaint at Mr B[...]’s premises at Zimbane Administrative Area, which
he did together with another female police officer.
[12] On their arrival at Mr B[...]’s place, Mr B[...] advised them inter alia that
he left his female child with the plaintiff when he was going to town.
Having came back from town, Mr B[...] offered supper to the female child,
Q[...] which she did not take and she complained of pain. He inspected the
child and observed that she sustained some abrasions or bruises which led
to a suspiscion of sexual violation. At that point Mr Mkhamkelwa, the
police asked the whereabouts of the plaintiff.
[13] On his arrival at the plaintiff, when he was seeing him for the first time he
introduced himself and informed the plaintiff of Mr B[...]’s accusations
relating to sexual violation and then advised him that he was arresting him.
He then took him to the po lice station where he ultimately detained him.
4 Setting the law in motion: according to particulars of claim as amended.
He testified that the child was taken to the hospital for medical examination
by a female police officer.
[14] Mr Mkhamkelwa categorically testified that he arrested the plaintiff
because he was pointed out by Mr B[...], the child’s father. He further
testified that he detained the plaintiff because he committed rape, for that
reason he could not leave him. Lastly he testified that he was protecting the
plaintiff from community members; he could be injured by those members.
Additionally, he testified that the purpose of the arrest was to take the
victim to the hospital and that a case be opened. He took into account the
fact that the plaintiff is a foreign national who is only a tenant where he is
staying. He mad e a point that he has a power to arrest and detain but he
does not have a power to release the suspect. He concluded by saying he
did not have malicious intent when arresting the plaintiff.
[15] Under cross examination by Ms Ncalo, the police officer test ified that he
arrested the plaintiff because there was a case opened against him. Under
cross examination by Mr Qitsi SC he stated that he did not at all suspect
the plaintiff of any wrong doing; it was Mr B[...] who suspected the
commission of an offence. An d because of Mr B[...]’s suspiscion he
arrested the plaintiff. However, he stated that he had no bad blood with the
plaintiff. He does not know who charged the plaintiff. He confirmed that
he never interviewed the child as the child was too young. It later tu rned
out that the child was approximately six to seven years old. The first
defendant closed his case.
[16] The second defendant called the evidence of Noluvo Msekelwa who is a
regional court prosecutor. She testified that she did not enrol the matter or
prosecute the plaintiff in the regional court. She did not take a decision to
prosecute. Mr Dondashe was the prosecutor in the plaintiff’s matter in the
regional court. However, she testified that she perused the transcribed
record and the docket and concluded that any reasonable person would
believe that there was a prima facie case against the plaintiff. She refuted
that there was malicious prosecution of the plaintiff. As a consequence of
the prosecution the plaintiff was convicted, therefore the prosecution did
not fail, it succeeded. This captures the evidence of the second defendant.
[17] The fourth defendant, Ms Noxolo Mfobo gave evidence also on behalf of
the third defendant who is cited on the basis that she is vicariously liable
for the delicts committed by the employees of her Department. She
presided over the matter of the plaintiff in the regional c ourt. She did not
know the plaintiff at the time the criminal matter served before her. She
saw the plaintiff for the first time when he appeared before her- she found
the plaintiff guilty on the basis of the evidence that served before her.
[18] She testified that Mr B[...], the child’s father, and the child testified before
her. It transpired that the Doctor who examined the child also gave
evidence in the regional court. According to the fourth defendant, the child
testified in the regional court that the plaintiff sexually penetrated her. She
further stated that the child father testified before her that he saw something
oozing from the child’s virgina and the father called local woman and the
child implicated the plaintiff. The fourth defendant confirmed that the
doctor testified before her that child’s hymen was intact, but stated that it
was red and that gave her a belief that there was an interference with the
child’s private parts. The fourth defendant relied on the evidence of the
three witnesses. Sh e refuted that she was malicious when she was
convicting and sentencing the plaintiff. She denied that she set the law in
motion as pleaded in the plaintiff’s particulars of claim.
[19] Under cross examination she confirmed that she was aware of the J88 -
medical report stating that the hymen was intact. However, she believed
that there was interference with the child’s private parts and she therefore
came to a conclusion that there was some form of penetration however
slight. She found solace for that con clusion on the fact that the child had
an infection on her private parts. She considered all the evidence before her
and found that the state had proved its case beyond reasonable doubt. She
acknowledged that her judgment was overturned on appeal. She refu ted
that the mere fact that the hymen was intact means that there was no
penetration. She stated that the swelling and redness showed that there was
tempering with the child’s private part. She declined to comment on the
oral testimony of the Doctor who ex amined the child. In conclusion she
flatly denied that she instigated or set the law in motion or acted with
malice.
[20] In what follows I discuss the causes championed by the plaintiff against
each of the defendant’s. It is apposite to restate those causes and how they
relate to the respective defendants. The first defendant, the Minister of
Police is sued on the basis of vicarious liability for the alleged malicious
arrest and detention of the plaintiff on 10th August 2013. He is further sued
for the malicious prosecution that was allegedly instigated at the instance
of the employees of his department. The second defendant, the National
Director of Public Prosecutions, is sued on the basis that she is vicariously
liable for the alleged setting law in mo tion and instigation of criminal
proceeding by a member or members of prosecuting authority against the
plaintiff. The third defendant is cited as an employer of all Magistrates and
on the basis that she is vicariously liable for the delicts committed by t he
Magistrates performing their work within the course and scope of their
employment with the third defendant’s department. The fourth defendant
is cited as the presiding judicial officer who convicted and sentenced the
plaintiff thereby setting the law in motion.
Malicious arrest and detention: First defendant
[21] Under this heading the issue for determination is whether the members of
the first defendant have intentionally, maliciously5 and without reasonable
and probable cause 6 instigated the arrest or detention of the plaintiff by
the proper authorities7. In malicious arrest and detention, the plaintiff must
allege and prove the following requirements for his claim to succeed:
“ (a) The defendant instigated the arrest;
(b) acted without reasonable and probable cause;
(c ) had animus iniuriandi; and
(d) was actuated by malice”8.
[22] In Nontsele9 the SCA remarked thus:
“[37] 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
5 Prnsloo v Newman 1975 (2) ALL SA 89; 1975(1) SA 481 AD 491.
6 Thompsn v Minister of Police 1971 (1) ALL SA 534 E; 1971 (1) SA 371 E at 373.
7 Heyns v Venter 2003 (1) ALL SA 1 (T); 2 (3) SA 2000 (T).
8 LAWSA, V ol 15, Part 2, Page 213 Para 349.
9 Minister of Police v Nontsele 2025 (1) ALL SA 44 SCA Para 37.
to injure, and with improper motive. Neethling and Potgieter describe it as
follows:
“Unlike wrongful deprivation of liberty, where the result complained of
must have been caused without justification by the defendant himself or
some person acting as his agent or servant, the conduct in the case of
malicious deprivation of liberty takes place under the guise of a valid
judicial process . The defendant makes improper use of the legal
machinery of the state, either through a policeman acting on his own
discretion or through a valid warrant, in depriving the plaintiff of his
liberty. The actual deprivation of liberty is consequently not carried out
by the defendant himself or by his servant or agent, but by the machinery
of the state through a valid judicial process.”
As a result, the plaintiff will have to prove the following in order to succeed in
an action based on malicious deprivation of liberty: that the
defendant instigated the deprivation of liberty; that the instigation was without
reasonable and probable cause; and that the defendant acted animo iniuriandi.
These requirements are similar to those of malicious prosecution.’
[23] Like in the case of malicious prosecution the plaintiff bears the onus to
prove all the requisites of the claim of malicious arrest and detention. They
are inextricably linked to one another; and failure to prove one requirement
often leads to a dismissal of plaintiff’s claim10. The plaintiff must prove all
the elements of malicious deprivation of liberty. As the word denotes
deprivation must be with malice, and that it must be without reasonable
and probable caus e. I intend to anterially deal with those two requisites
before all else.
[24] Malice means either:
(a) that the defendant lacked an honest belief in the fact that the
plaintiff has committed the wrong; or
10 Funani v National Director of Public Prosecutions (1296/2016) [2019] ZAECMHC 71 (5 November 2019)
Para 24.
(b) that the defendant had an improper motive in the sense of an
absence of the purpose for which the law authorised the arrest11.
The first element of the definition (one mentioned in (a) above) is
alternative to the second element of the definition (one mentioned in (b)
above) and that is clear from the use of the conjunction “OR”, which
denotes that the presence or existence of one of the elements is sufficient
to find liability against the defendant. It must be proved that there has been
absence of an honest belief in the guilt of the accused.
[25] The plaintiff has been consistent in his testimony that he was arrested for a
crime he did not commit and he further stated that the Doctor’s evidence
clearly demonstrated that he did not rape the child or the child was not
raped. During the plaintiff’s cross examination by Adv Simoyi SC, Counsel
for the first defendant it became clear f rom his questions which were
confirmed by the plaintiff that it is the duty of the police to investigate
when there is an alleged crime spotted to them. Adv Simoyi SC further
suggested to the plaintiff that if the police fail to investigate the reported
crime, that becomes a very serious issue against the police. However,
nowhere it is suggested that such suggested investigation was conducted
prior to the arrest of the plaintiff.
[26] What makes matters worse is the evidence of the arresting office Mr
Mkhamkelwa. He testified that he received a radio control call instructing
him to attend at Mr B[...]’s place and he was not given the details of the
complaint. From this piece of testimony, it is plain that the arresting officer
was not only without details t hat would enable him to lawfully arrest, he
11 LAWSA, V ol 15, Part 2, Page 213, Para 350.
also was not in possession of the police docket containing the necessary
statements taken from the victim (the child) and her father, Mr B[...] the
complainant. He expressly testified that statements were taken from the
hospital by his female colleague who was in his company when they were
heading to Mr B[...]’s place to arrest the plaintiff. The female colleague
attended at the hospital after the plaintiff was arrested, processed and
detained.
[27] Jones J12 observed as follows:
“………. 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, i.e. something which otherwise would be an invasion of private
rights and personal liberty. The reasonable man will therefore analyse and
assess the qualit y 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 upon solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.”
[28] The arresting officer categorically stated in his evidence in chief, as a
reason for his arrest of the plaintiff, that he arrested the plaintiff because he
was pointed by Mr B[...] as a person who abused his child. He further
testified that he was protecting the plaintiff from the community members
as he harboured a view that the plaintiff could be injured by the community
members. In the same vain he testified that he arrested the plaintiff because
members. In the same vain he testified that he arrested the plaintiff because
he has powers to arrest and detain the suspect and that he did not have
power to release the suspect. He testified that he detained the plaintiff so
12 Mabona and another v Minister of law and order and others 1988 (2) SA 654 (SE) at 659 E-H.
that the victim could be taken to hospital and thereafter a case could be
opened. It is clear from this reason that no case had been opened at the time
of the arrest. Another startling reason is that he arrested the plaintiff
because he is a foreign national staying where he was staying on tenancy
basis. He lastly stated that he could not leave the plaintiff because of the
accusation of rape. These reasons are hardly acceptable to justify
deprivation of personal liberty.
[29] Under cross examination by Adv Ncalo, the arresting officer cited only
two reasons for his arrest of the plaintiff, to wit, that he arrested the plaintiff
because there was a case opened by Mr B[...] against the plaintiff and that
he wanted to protect the plaintiff. When asked about the procedure to
follow when arresting a suspect, the arresting officer testified that he reads
out his or her rights and when he arrives at charge office he opens the case
and register the suspect in the records and detain him. It must therefore be
accepted that plaintiff’s arrest and detention occurred without a case having
been opened, statements having not been taken and also without a case
docket.
[30] There were serious discrepancies in the arresting officers evidence. The
internal contradictions are prevalent in the arresting officers evidence about
the opening of the criminal case, namely, that the statement were only taken
at the hospital after plaintiff’s arrest and that he opened the case, process
(register him in the records) and detained him versus the fact that he
arrested the plaintiff because there was a case opened by Mr B[...]. There
was no basis laid for the assertion that he arrested the plaintiff to protect
him. Arresting plaintiff because he is of foreign origin is discriminatory
and can never constitute an acceptable reason for the arrest. Discrimination
and prejudice against people from other countries as grounds of arrest are
highest forms of alterior and improper motive.
[31] In Stellenbosch13 Nienaber JA held:
“On the central issue, as to what the parties actually decided, there are two
irreconcilable versions. So too on a number of peripheral areas of dispute which
may have a bearing on the probabilities. The technique generally employed by
courts in resolving factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion on the disputed issues a court
must make findings on (a) the credibility of the various factual witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the court’ s finding on the
credibility of a particular witness will depend on its impression about the
veracity of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the witness’ s candour
and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with what was
pleaded or put on his behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability of particular aspects
of his version, (vi) the calibre and cogency of his performance compared to that
of other witnesses testifying about the same incident or events. As to (b), a
witness’ s reliability will depend, apart from the factors mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or observe the
event in question and (ii) the quality, integrity and independence of his recall
thereof. As to (c), this necessitates an analysis and evaluation of the probability
or improbability of each party’ s version on each of the disputed issues. In the
light of its assessment of (a), (b) and (c) the court will then, as a final step,
light of its assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one, occurs when
a court’ s credibility findings compel it in one direction and its evaluation of the
general probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised probabilities
prevail.”
Arresting officer’s evidence was not credible, his conduct and demeanor in
the witness box was not satisfactory as he was overly confident and
exaggerative at times.
13 Stellenbosch Famers’ Winery Group Ltd and Another v Martell and others 200 (1) SA 11 (SCA) at Para 5.
[32] During cross examination by Adv Qitsi SC, the arresting officer confirmed
that he arrested the plaintiff because he was suspected [of having
committed an offence] by Mr B[...]. He boldly stated that it was not for him
to suspect, it was for Mr B[...], his was to arrest. Reverting back to the first
element of malice, to wit, honest belief in the fact that the plaintiff had
committed the wrong,” it is crystal that the arresting officer did not have
the belief at all that the plaintiff committed the rape 14. This renders
unnecessary to deal with the s econd and alternative element of the
definition of malice.
[33] Malice is both subjective and objective. Both tests are satisfied in this
matter. Malice in the sense of absence of an honest belief coincides with
want of reasonable and probable cause in the subjective sense. It is
objective in that the arresting officer had no reasonable cause for arresting
the plaintiff in that he did not have such information as would lead a
reasonable person to conclude that the plaintiff had probably been guilty
of the offence15.
[34] Elements or components of malice are the same as or coincide with
elements or definition of absence of reasonable and probable cause.
Absence of reasonable and probable cause means either:
“(a) that subjectively the defendant had no honest belief that the plaintiff had
committed an unlawful act for which he or she could have been arrested.
(b) that objectively on the facts and the law as known to the defendant at the
time a reasonable person could not have concluded that the plaintiff had
committed such unlawful act16”.
14 Lefdahl v Dredge 1910 CPD 452 at 456.
15 LAWSA, V ol 15, Part 2, Page 201, Para 326.
16 LAWSA, V ol 15, Part 2, Page 214, Para 351.
If either element is proved the defendant would have acted without
reasonable and probable cause17. I however, find that both these elements
were satisfied in this case. Accordingly, plaintiff’s case must succeed on
the claim of malicious arrest of the plaintiff at the instance of the first
defendant. Plaintiff’s case is probably true18. I shall deal with quantum later
in this judgment.
[35] The plaintiff was arrested on 10 th August 2013. His first appearance was
on 13th August 2013, which period is a period within 48 hours of his arrest.
During the first appearance the matter was postponed for “ Amharic”
interpreter. The plaintiff was then dealt with by the court and the
prosecution. No role appears to have been played by the mem bers of the
first defendant after the plaintiff’s first appearance in court. There is no
evidence that the arresting officer foresaw that the plaintiff would be
remanded further in custody 19. Accordingly, the first defendant’s liability
for plaintiff’s ma licious arrest is limited to the time of the plaintiff’s
detention until the date of his first appearance before the Magistrate, which
is 13th August 2013. It is well established that the purpose of arrest is to
bring the suspect to court for trial20. There is no evidence that the arresting
officer or investigating officer exceeded the purpose of the arrest.
Accordingly, the plaintiff spent three (3) nights in custody at the instance
of the police.
17 Beckenstrater v Rottecher and Theunissen 1955 (1) ALL SA 146 (A); 1955 (1) SA 129 (AD) at 136.
18 National Employers General Insurance Company v Jagers 1984 (4) SA 437 at 440 E-G.
19 De klerk v Minister of police 2021 (4) SA 585 (CC); 2020(1) SACR (1) (CC); 2019 (12) BCLR 1425 (CC)
Para 76-77.
20 Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 SCA Para 41.
[36] The arresting officer foresaw the possibility of the plaintiff being subjected
to injury to his right to personal liberty 21 and his right to dignity 22 but
nonetheless reconciled with that possibility 23. Arresting a person when
there is no honest belief that such person has committed the offence is
definitely injurious. An arresting officer brazenly stating that it was not for
him to suspect that the plaintiff committed an offence clearly spells out an
intention to injure. Even at the lower level of unlawful arrest, the arresting
officer must at least have a reasonable suspiscion that an offence referred
to in schedule 1 has been committed24.
Malicious Prosecution: First to Fourth Defendant
[36] In order to succeed with a claim for malicious prosecution, the plaintiff
must allege and prove: -
“(a) that the defendants set the law in motion in that it instigated and
instituted the proceedings;
(b) that the defendants acted without reasonable and probable cause;
(c) that the defendants acted with malice (or animo injuruindi);
(d) that the prosecution has failed”25.
[37] Apparently, all the defendants are sued under this head. The South African
Police Service (Minister of Police), National Prosecuting Authority and the
Regional Court Magistrate (Minister of Justice and Correctional Services)
21 Section 12(1) of the Constitution.
22 Section 10 of the Constitution.
23 Dolus Eventuialis.
24 Section 40(2)(b) of Criminal Procedure Act 51 of 1977 as amended.
25 The Minister of Justice and Constitutional Development v Moleko 2008 (3) ALL SA 47 SCA Para 8.
are herein sued for malicious prosecution. In what follows I deal with the
amended particulars with a view to demonstrate this unusual situation.
[38] With regard to the first and second defendants the plaintiff avers:
“7.4 Had it not been for the plaintiff’s malicious arrest, detention and
malicious prosecution on the part of the employees of both first and second
defendants of plaintiff without just and probable cause as well as the
Prosecutors conduct of confirming charges preferred against plaintiff despite
lack and absence of or minimum of evidence upon which the plaintiff could have
convicted both police and prosecutor(s) are liable for p laintiff’s malicious
prosecution.
………
7.5.3The Prosecutor who also confirmed the charges and enrolled the matter
did not apply her mind to the content of the docket in that:
(a) Despite lack or absence of a minimum of evidence upon which the
plaintiff could have been convicted, she just enrolled the case to be
postponed;
(b) She failed in her duty to act objectively and protect the
public interest particularly the interest of the plaintiff;
……
12.The action of both the defendants of setting the law in motion were without
any reasonable and probable cause, they wer e actuated by malice aimed at
injuring the plaintiff’s reputation and dignity, eventually the prosecution on the
part of both first and second defendant, plaintiff suffered damages.
………
16.1 the police and prosecutor(s) set the law motion by institut ion or
instigating the proceedings against the plaintiff;
16.2 The police and prosecutor(s) when instituting or instigating these
proceedings had no reasonable or probable cause;
16.3 Both the police and prosecutors(s); were actuated by malice, with the
intention to injure the plaintiff’s dignity and reputation.
16.4 As a result the case against the plaintiff failed” (sic).
[39] The third defendant is sued on the basis that she is vicariously liable for the
[39] The third defendant is sued on the basis that she is vicariously liable for the
wrongs or omission of the employees o f the department of justice and
correctional services26. The fourth defendant is said to have been acting
within the course and scope of her employment with the third defendant.
The third and fourth defendants are connected to the claim of malicious
prosecution by the following averments:
18.
As a result of the conviction and sentence by the fourth defendant, plaintiff
had to be incarcerated for a very long time, four (4) years to be precise.
19.
Fourth defendant in doing so set the law in motion, when there was no
reasonable and probable cause and was actuated by malice in doing so in that,
in appeal, 4th defendant’s conviction and sentence and sentence were set aside,
which means therefore the plaintiff was successful and the prosec ution
failed.
20.
Fourth defendant in her conduct was working within the course and scope of
his employment with the third defendant. As a result of the malice on his part of
third defendant of the instance of fourth defendant plaintiff suffer ed
damages” (sic).
First Defendant: Malicious Prosecution
[40] Thereanent to the claim for malicious prosecution the first defendant pleads
as follows:
“20.1.6 The first defendant pleads that the decision to prosecute the plaintiff
was taken by the second defendant on the basis of information contained in
the case docket and does not affect him.
20.1.7The first defendant further pleads that the pla intiff’s case was
postponed several times for a formal bail application which was ultimately
refused at the instance of the judicial officer because there were no facts which
justified the granting of bail.
2.1.8The further detention of the plaint iff was justified and in
accordance with the law” (sic).
26 Section 2 of State Liability Act 20 of 1957 as amended.
[41] The first defendant identified these facts with a view to demonstrate that
provisions of section 20 of the National Prosecuting Authority Act 32 of
1998 (the Act) are applicable and operative. It is not necessary to specify
in the pleading the statutory provision relied upon. It is enough that the
facts alleged by the litigant clearly show that the statutory provision is
relevant and operative. 27 Chapter 4 of the Act provides for pow ers to
institute and conduct of criminal proceedings. Section 20(1) of the Act
provides:
“The power, as contemplated in section 179(2) and all other relevant sections
of the Constitution, to-
(a) institute and conduct criminal proceedings on behalf of the state;
(b) carry out any necessary functions incidental to instituting and conducting
such criminal proceedings; and
(c) discontinue criminal proceedings; vests in the prosecuting authority and
shall, for all purposes, be exercised on behalf of the Republic”. Both the
Constitution and the Act provides for prosecutorial decisions and conduct
of criminal proceedings.
[42] Plaintiff’s evidence does not deal specifically with the claim of malicious
prosecution again the first defendant. It clear ly does not link the conduct
of the police to the alleged malicious prosecutions. He who alleges
proves28. The plaintiff has failed to discharge this duty in respect of
malicious prosecution against the first defendant. It admits of no doubts
that the police arrested the plaintiff on 10 th August 2013 and he appeared
in court on 13 th August 2013. No role has been disclosed to have been
played by the members of the first defendant in the prosecution of the
27 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490
(CC)’; 2004 (7) BCLR 687 (CC) Para 27.
28 Pillay v Krishna and another 1946 AD 946 at 951-2.
plaintiff. First defendant’s members did not identify with the prosecution29.
Plaintiff’s Counsel, Mr Qitsi SC was invited to make submissions in court
in the light of the provisions of section 20 of the Act and he was unable to
do so, but promised to deal with that aspect in the plaintiff’s supplementary
heads if argument which were not filed.
[43] Grammatical interpretation 30 of the provisions of section 20(1) of the
National Prosecuting Authority Act conduce to a meaning that is consistent
to the fact that the institution and conduct of criminal proc eedings on
behalf of the state is a power conferred on the prosecuting authoring. The
provisions of section 20 of the Act is a mirror image of section 179 (2) of
the Constitution which provide thus:
“2. The prosecuting authority has the power to institu te criminal proceedings
on behalf of the state, and to carry out any necessary functions incidental to
instituting criminal proceedings”.
[44] The Prosecuting Authority exercises the constitutional and statutory power
when instituting and conducting criminal proceedings. There is no
evidence or suggestion of any nature that such power is shared with another
arm of government, institution or organ of state. Put differently, there is no
evidence or a case made out that there is another arm of government,
institution or organ of state that exercises power in terms of the law to
perform prosecutorial duties. It is a prosecutorial duty to institute and
conduct prosecution. There is no factual or legal basis to hold the first
defendant liable for damages arising out of his prosecution. I do so because
there is an authority for proposition that:
29 Heyns v Venter 2003 (3) ALL SA 176 (T); 2004 (3) SA 200 (T) at 207.
30 SATAWU and Another v Garvas and others 2013(10 SA 8 (C; 2012 8) BCLR 840 (CC).
“the doctrine of legality which requires that power should have a source in
law, is applicable whenever public power is exercised. Public power ca n be
validly exercised only if it is clearly sourced in law”31.
[45] To conclude on this topic, the object of police services is set out in section
205(3) of the Constitution which reads thus:
“(3) The objects of the police service are to prevent, c ombat and investigate
crime, to maintain public order, to protect and secure the inhabitants of the
Republic and their property, and to uphold and enforce the law.
Nowhere in the whole section it is provided that the police service is
saddled with a res ponsibility to undertake prosecutorial functions. I am
therefore unable to find that the first defendant is liable for malicious
prosecution.
Third and Fourth Defendants: Malicious Prosecution
[46] Plaintiff’s failure in this regard extends to the third and fourth defendants.
Magistrates exercise judicial authority as opposed to prosecutorial power.
The Magistrates are part of Judiciary that is referred to in section 165 of
the Constitution which provides for judicial authority. Subsection 1 thereof
provides thus:
“(1) The judicial authority of the republic is vested in the courts”.
Magistrates duties and powers are adjudicative and not prosecutorial. They
exercise adjudicative powers. I have held that prosecutorial powers vest in
the prosecuting authority. Magistrates courts are creatures of statute. As
such, they have no inherent jurisdiction and their powers must be deduced
from the four corners of statute32. The Magistrates court Act 32 of 1944 is
31 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC) Para 68; Lester v
Ndlambe Municipality 2014(1) ALL SA 402 SCA;2015 (6) 283 SCA Para 26.
32 Kondlo v Eastern Cape Development Corporation 2014 (2) ALL SA 328 (ECM) Para 39.
the source of Magistrates powers 33. In addition, thereto, the criminal
procedure Act 51 of 1977 as amended does not confer prosecutorial powers
upon the Magistrate or Magistrates court.
[47] In the circumstances, there is no basis both in law and in fact to find that
the Magistrate set th e law in motion in the context of malicious
prosecution. Therefore, the claim for malicious prosecution against the
third and fourth defendant cannot succeed. It is fallacious to suggest that,
when the Magistrate convicted the plaintiff it was setting the law in motion.
She was not. Instead she was exercising her judicial authority. Convicting
a suspect is an exercise of court’s adjudicative powers.
[48] One aspect deserves comment. There is no other claim against the third
and fourth defendant pleaded in the particulars of claim. Plaintiff’s
evidence did not disclose any other claim or cause of action against the
third and fourth defendant. However, during cross examination of fourth
defendant, Ms Mfobo, emphasis was placed to make a point that the fourth
defendant/ Magistrate was malicious or that she acted with malice. That
does not take plaintiff’s case any further. Malice or malicious conduct was
canvassed in evidence in the context of a claim for malicious prosecution
requirement34. That cross examination was following the pleaded facts in
the particulars of claim referred to in paragraph 37 above. The examination
sought to establish a malice as a requirement of malicious prosecution and
nothing more.
33 Magistrates Court Rules inclusive
34 LAWSA, V ol 15, Part 2, Page 195, Para 315; That the defendant was actuated by an improper motive or malice
[49] A contrary submission would be antithetical to trite principles of pleading.
In Slabbert35SCA remarked as follows:
“11. The purpose of the pleadings is to define the issues for the other
party and the court. A party has a duty to allege in the pleadings the
material facts upon which it relies. It is impermissible for a plaintiff
to plead a particular case and seek to establish a different case at the
trial. It is equally not permissible for the trial court to have recourse
to issues falling outside the pleadings when deciding a case”.
I have already found that the Magistrate and her department are not
liable for a claim of malicious prosecution. Accordingly, this claim fails
against the third and fourth defendant.
Second Defendant (NPA): Malicious Prosecution
[50] I have outlined above the requirements of malicious prosecution claim.
From the onset I must indicate that, Mr Dondashe who was a prosecutor
who took decision to prosecute was not called to give evidence. Instead Ms
Noluvo Msekelwa, who is a Senior Public Prosecutor was called to testify
on behalf of the second defendant. She testified that the reason Mr
Dondashe was not before court to give evidence is because he is no longer
working for the Nation al Prosecuting Authority. She understood her role
in court standing in for Mr Dondashe, whatever that means.
[51] It is common cause that criminal proceedings were instituted against the
plaintiff which terminated in the appeal in favour of the plainti ff. A point
sought to be made that the proceedings terminated in the court a quo in
second defendant’s (NPA) favour, as the plaintiff was convicted in that
court. I find no merit in that contention. A notice of appeal and the whole
35 Minister of Safety and Security v Slabbert 2010 (2) ALL SA 474 (SCA) Para 11.
appeal process reope ned the criminal proceedings. They remained not
terminated pending the determination of the appeal. It was the appeal court
that would finally determine the criminal proceedings against the plaintiff.
Termination of proceedings means only the final dete rmination of the
proceedings. In this case the proceedings were finally determined by the
appeal court.
[52] It is apposite at this stage to deal with two requisites of malicious
prosecution, which I consider to be dispositive of this matter, to wit, (i)
absence of reasonable and probable cause and (ii) malice. The test for
absence of reasonable and probable cause is both objective and subjective.
It is objective in that when it is alleged that a defendant had no reasonable
cause for prosecution it means that he did not have such information as
would lead a reasonable person to conclude that the plaintiff had probably
been guilty of the offence charged36. The subjective element of reasonable
and probable cause means an honest belief fou nded on reasonable
grounds that the institution of proceedings is justified. Put Differently, the
defendant had honest belief that the plaintiff had committed an unlawful
act for which he could have been arrested or charged37.
[53] With regard to the subjective element of reasonable and probable cause;
a person who exercised a discretion did not give evidence to explain what
subjectively had been in his mind when he took a decision to prosecute or
when he instituted the proceedin gs. South African concise oxford
dictionary38 defines the adjective:
36 Landman v Minister of Police 1975 (2) ALL SA 76 E; 1975 (2) SA 155 E 156.
37 Lef dahl v Dredge 1910 CPD 452 at 456; LAWSA, V ol 15, Part 2, Page 214, Para 351.
38 Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 543.
“Subjective” to mean “1. Based on or influenced by personal feelings,
tastes, or opinions. 2. Depending on the mind for existence. 3… relating to
or denoting a case of nouns and pronouns used for subject of a sentence.”
The first and second definition are apposite. This court has not been
favoured with Mr Dondashe’s personal opinions that subjectively
influenced his decisions to prosecute in terms of section 20 of the
National Prosecuting Act. In this regard Ms Msekelewa’s opinion about
plaintiff’s case in the regional court is irrelevant. It is plain that a
requirement of reasonable and probable cause was absent.
[54] Even if it can be said I am wrong in the assessment of subjective element
of the absence of a reasonable and probable cause, I would still find that
the objective element, too was absent. On 11 th August 2013, Dr Meal
examined the victim, Q[...] B[...] and recorded in the J88 form the
following conclusion: “Hymen intact & intense red. Sexual assault could
not be ruled out”. The gynaecological examination demonstrated that the
following organs were normal. Clitoris, urethra orifice, labia majora,
labia minora, para –urethral folds, frenulum of clitoris ”. Bleeding was
recorded as nil and posterior fourchette: Scarring and tears were recorded
to be intact.” Foss navicularis was recorded normal. Bumps, synechiae,
clefts and bruising were recorded to be nil. It was further concluded that
no physical injury visible”.
[55] It bears repletion and sight must not be lost of the fact that the plaintiff
was facing a charge of rape of a minor child who was recorded to be seven
(7) years of age at the time. In this medical report, nothing objectively
suggests that rape of a minor child took place. No penetration objectively
appears to have taken place. No facts appear to have justified the
prosecution of the plaintiff. Absence of the objective facts establishing a
possibility of rape would have or ord inarily necessitated the public
prosecutor who decided to prosecute, to come and explain and justify his
decision.
[56] In Lubaxa39
“[19] The right to be discharged at that stage of the trial does not necessarily arise, in
my view, from considerations relating to the burden of proof (or its concomitant, the
presumption of innocence) or the right of silence or the right not to testify, but arguably
from a consideration that is of more general application. Clearly a person ought not to
be prosecuted in the absence of a minimum of evidence upon which he might be
convicted, merely in the expectation that at some stage he might incriminat e himself.
That is recognised by the common law principle that there should be “reasonable and
probable” cause to believe that the accused is guilty of an offence before a prosecution
is initiated (Beckenstrater v Rottcher and Theunissen 1955(1) SA 129 (A) at 135C-E),
and the constitutional protection afforded to dign1ity and personal freedom (s 10 and
s 12) seems to reinforce it. It ought to follow that if a prosecution is not to be
commenced without that minimum of evidence, so too should it cease when the evidence
finally falls below that threshold. That will pre -eminently be so where the prosecution
has exhausted the evidence and a conviction is no longer possible except by self -
incrimination. A fair trial, in my view, would at that stage be sto pped, for it threatens
thereafter to infringe other constitutional rights protected by s 10 and s 12”.
[57] The prosecution policy40instructs the prosecutors as follows:
“The process of establishing whether or not to prosecute usually starts when
the police present a docket to the prosecutor. This often happens after the
suspect has been arrested. The case needs to be studied to make sure that it is
properly investigated.
properly investigated.
The prosecutor must consider whether to—
• request the police to investigate the case further;
• institute a prosecution;
• enter into a plea or sentence agreement;
• decline to prosecute and to opt for pre -trial diversion or other non -
criminal resolution; or
• decline to prosecute without taking any other action
39 S v Lubaxa 2001 (2) SACR 703 (SCA) Para 19..
40 Chapter 3A: Prosecution Policy: Revision Dates June 2013
The decision whether or not to prosecute must be taken with care,
because it may have profound consequences for victims, witnesses,
accused persons and their families. A wrong decision may also
undermine the community’s confidence in the prosecution system and
the criminal justice system as a whole.
Resources should not be wasted pursuing inappropriate cases, but must
be used to act vigorously in those cases worthy of prosecution.
In deciding whether or not to institute criminal proceedings against an
accused person, prosecutors must assess whether there is sufficient and
admissible evidence to pr ovide a reasonable prospect of a successful
prosecution. There must indeed be a reasonable prospect of a
conviction, otherwise the prosecution should not be commenced or
continued. (My underlining)
[58] A vigilant prosecutor, being guided by the prosecution policy, if he indeed
wanted to prosecute, should have instructed the police to conduct further
investigations as there were no prospects of a successful prosecution in the
matter. Alternatively, a prudent prosecutor would have arranged
consultation with prospective witnesses in order to evaluate their
reliability, as the prosecution policy further provides that:
“Where the prospects of success are difficult to assess, prosecutors
must consult with prospective witness in order to evaluate their
reliability. The version or the defence of an accused person must
also be considered before a decision be made.”
No evidence that the plaintiff’s defence was ever considered before the
decisions to prosecute was taken. All of this see ks to ensure that there is
a reasonable and a probable cause of the institution or instigation of
criminal proceedings against accused persons.
[59] It suffices to mention that the requirement of malice shares the same
elements with the requirement of absence of reasonable and probable
cause. The meaning of malice41 is expounded. Malice means the defendant
had:
“ (a) an absence of an honest belief in the guilt of the accused42
which may include recklessness.
(b) An improper or indirect motive in the sense of some other
motive other than that of bringing the plaintiff to justice.
In the light of the fact that I have discussed above these two elements
under the absence of reasonable and probable cause, it is not necessary
to discuss them again under the malice. I however, come to conclusion that
the prosecution of the plaintiff was malicious.
[60] In the conspectus of all this, I accordingly find that the second defendant
maliciously prosecuted the plaint iff. Plaintiff’s claim for malicious
prosecution against the second defendant (NPA) succeeds. All the
requisites for a successful claim of malicious prosecution against the
second defendant have been satisfied43.
Conclusion
[61] The plaintiff has succeeded in the claim for malicious arrest against the
first defendant (police). He has further succeeded in the claim for malicious
prosecution against the second defendant (NPA). The claim for malicious
prosecution against the firs t, third and fourth defendants has failed. This
has a bearing on the question of costs which I will deal with hereinafter.
Quantum
41 LAWSA, V ol 15, Part 2, Page 202 Para 328.
42 Fyne v The African Reality Trust Ltd 1906 EDC 248, 257
43 Funani v National Director of Public Prosecution (1298/2016) [2019] ZAECMHC 71 (5 November 2019)
Para 24
[62] Plaintiff’s deprivation of liberty at the instance of the Police occurred
from 10 th August 2013 until 13 th August 20 13. When the plaintiff
appeared in court in 13th August 2013 he had been in custody for three
(3) days. Alternatively, he spent three (3) nights in the cells.
Plaintiff’s rights to freedom or liberty and human dignity were
unjustifiably violated. T he detention constitutes an in -road into the
freedom and the right to human dignity of an individual 44. The right to
liberty is inextricably linked to human dignity45 .
[63] In Du Plessis46 the SCA remarked as follows:
“15. Our new Constitutional Order, conscious of our oppressive past, was
designed to curb intrusions upon personal liberty which has always, even
during the dark days of apartheid, been judicially valued, and to ensure that the
excesses of the past would not recur.3 The right to liberty is inextricably linked
to human dignity. Section 1 of the Constitution proclaims as founding values,
human dignity, the achievem ent of equality and the advancement of human
rights and freedoms. Put simply, we as a society place a premium on the right
to liberty.
[64] Section 12 deals with freedom and security of the person. Importantly it
provides as follows in relevant parts:
“Everyone has the right to freedom and security of the person, which includes
the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
………
44 Thandani v Minister of Law and Order 1991 (4) SA 904 (A).
45 Minister of Police v Du Plessis 2014 (1) SACR 217 (SCA); Zealand v Minister of Justice and Constitutional
Development 2008 (4) SA 458 (SCA) Para 25.
46 Minister of Police and another v Du Plessis 2014 (1) SACR 217 SCA Para 15.
(2) Everyone has the right to bodily and psychological integrity…….”
Section 10 deals with dignity as follows:
“Everyone has inherent dignity and the right to have their dignity respected and
protected”.
[65] In Diljan47Makaula AJA had the following to say:
“[18] The acceptable method of assessing damages includes the evaluation of
the plaintiff’ s personal circumstances; the manner of the arrest; the
duration of the detention; the degree of humiliation which encompasses
the aggrieved party’ s reputation and standing in the community;
deprivation of liberty; and other relevant factors peculiar to the case
under consideration.
[19] Whilst, as a general rule, regard may be had to previous awards, sight
should, however, not be lost of the fact that previous awards only serve
as a guide and nothing more. As Potgieter JA cautioned in Protea
Assurance Co. Ltd v Lamb:
‘It should be emphasised, however, that this process of
comparison does not take the form of a meticulous examination
of awards made in other cases in order to fix the amount of
compensation; nor should the process be allowed so to dominate
the enquiry as to become a fetter upon the Court’ s general
discretion in such matters. Comparable cases, when available,
should rather be used to afford some guidance, in a general way,
towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous awards in
broadly similar cases, regard being had to all the factors which
are considered to be relevant in the assessment of general
damages. At the same time, it may be permissible, in an
appropriate case, to test any assessment arrived at upon this
basis by reference to the gene ral pattern of previous awards in
cases where the injuries and their sequelae may have been either
more serious or less than those in the case under consideration.”
[66] In Tyulu48 the Supreme Court of Appeal held:
“[26] In the assessment of damages for unlawful arrest and detention, it is
“[26] In the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not to enrich the
47 Diljan v Minister of Police (746/2021) [2022] ZSCA 103 (24 June 2022) 22 JDR 1759 SCA Para 18-19.
48 Minister of Safety and Security v Tyulu 2009 (5) SA 58 (SCA); 2009 (2) SCAR 282 (SCA); 2009 (4) ALL SA
38 Para 26.
aggrieved party but to offer him or her some much-needed solatium for
his or her injured feelings. It is therefore crucial that serious attempts
be made to ensure that the damages awarded are commensurate with
the injury inflicted. However, our courts should be astute to ensure that
the awards they make for such infractions reflect the importance of the
right to personal liberty and the seriousness with which any arbitrary
deprivation of personal liberty is viewed in our law. I readily concede
that it is impossible to determine an award of damages for this kind of
injuria with any kind of mathematical accuracy. Although it is always
helpful to have r egard to awards made in previous cases to serve as a
guide, such an approach if slavishly followed can prove to be
treacherous. The correct approach is to have regard to all the facts of
the particular case and to determine the quantum of damages on such
facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)
325 para 17; Rudolph & others v Minister of Safety and Security &
others (380/2008) [2009] ZASCA 39 (31 March 2009) (paras 26-29).”
[67] The plaintiff is a major unemployed male 49 born on 01 st May 1979 . He
does not describe the conditions in Prison where he was detained.
[68] In Diljan the Supreme Court of Appeal awarded R120 000.00 as fair and
reasonable amount for appellant’s deprivation of liberty for three (3) days.
When dividing that amount by three (3) days, one gets R40 000.00. In
Madyibi50 an amount of R35 000.00 was awarded for twenty (20) hours
detention. In Ncume51 this court awarded R45 000.00 as fair and
reasonable compensation for arrest and detention for approximately
eighteen (18) hours. Taking into account the circumstances and conditions
of plaintiff’s detention or deprivation of liberty, I am satisfied that the first
defendant is liable to the plaintiff in the amount of R120 000.00 as fair and
reasonable compensation for deprivation of liberty for approximately three
(3) days.
reasonable compensation for deprivation of liberty for approximately three
(3) days.
49 At the time of institution of these proceedings he was self-employed.
50 Nel v Minister of Police (Case No CA 62/2017) [2028] ZAECGHC.
51 Andile Ncume v Minister of Police (Case No 3219/2021) Eastern Cape, Mthatha.
[69] With regard to malicious prosecution, no disbursements in the form of legal
costs have been pleaded by t he plaintiff. However, the plaintiff had been
placed under a tremendous hardship. He went through the process of
criminal litigation in the District court, Regional court; and after he was
convicted he successfully prosecuted his appeal. The length of time when
the plaintiff was subjected to prosecution is an important consideration.
The anxiety, uncertainty and anguish he went through when he was still
under prosecution by the second defendant (NPA) is a relevant factor to be
taken into account. The prosec ution had a negative impact on plaintiff’s
dignity. All of the aspects set out herein are incidental to, a natural
consequence, component and a quintessence of malice already discussed
above. I am therefore satisfied that an amount of R250 000.00 is a fair and
reasonable compensation for a claim for malicious prosecution against the
second defendant (NPA).
Costs
[70] The general rule is that costs must follow the result. With regard to the
claim of malicious arrest and detention the plaintiff has succeeded against
the first defendant. However, the plaintiff has failed in the claim for
malicious prosecution against the first defendant. Ordinarily, neither the
plaintiff nor the first defendant would be entitled to costs against each
other.
[71] Regarding the claim for malicious prosecution against the second
defendant, the plaintiff has succeeded. The plaintiff is entitled to his costs
against the second defendant (NPA). However, the third and fourth
defendants succeeded against the plaintiff and therefore they are entitled to
their costs.
[72] In the result the following order shall issue:
Order
1. The first defendant (Police) is liable to pay the plaintiff an amount of
R120 000.00 (One Hundred and Twenty Thousand Rands) in respect of
malicious arrest and detention from 10 TH August 2013 to 13 th August
2013.
2. The first defendant (Police) shall pay interest on the capital amount
(R120 000.00) referred to in paragraph 72.1 above at the prescribed
legal rate calculated from the date of this judgment to the date of final
payment.
3. The second defendant (NPA) is liable to pay the plaintiff an amount
of R250 000.00 (Two Hundred and Fifty Thousand Rands) in respect of
the claim for malicious prosecution.
4. The second defendant shall pay interest on the capital amount
(R250 000.00) referred to in paragraph 72.3 above at a prescribed legal
rate calculated from the date of this judgment to the date of final
payment.
5. The plaintiff’s claim for malicious prosecution against the first, third
and fourth defendants is hereby dismissed.
6. The second defendant (NPA) shall pay plaintiff’s costs of suit in respect
of the claim for malicious prosecution.
7. The plaintiff shall pay third and fourth defendants’ costs of suit in
respect of the claim for malicious prosecution.
8. There shall be no order as to costs in respect of the claim for malicious
arrest and detention.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Plaintiff : Adv Qitsi SC with Adv Nabela
Instructed by : M. WAKABA ATTORNEYS
No 158, 1st Floor
Cnr York and Elliot Street
ECDC Building
Mthatha
Cell:076 243 8289
Email:mathembaakaba@gmail.com
For the 1st Defendant : Adv Simoyi SC
Instructed by : STATE ATTORNEY
Sission Street
Mthatha
Tel: 047 502 9900
Email:MFodo@justice.gov.za
For the 2nd Defendant :Adv Ncalo
Instructed by :STATE ATTORNEY
Sission Street
Mthatha
Tel: 047 502 9900
For the 3rd and 4th Defendant :Adv E.M Matanda
Instructed by :STATE ATTORNEY
Sission Street
Mthatha
Tel: 047 502 9900
Matter heard on : 4, 5, 6, 7 and 8 August 2025
Delivered on : 18th November 2025