2
first necessary to address the issues that arose on the date the trial was scheduled to
commence, before considering the merits of the case.
[2] At the commencement of proceedings, counsel for the defendant informed the
court that he had only recently been instructed and that an amended plea,
foreshadowed in the pre-trial minutes, would be presented later that afternoon. Before
the plaintiff was called, counsel outlined the essence of the intended amendment: that
the arrest would no longer be denied and that the defendant’s case would be that the
arrest was lawful, with the grounds therefore to be properly pleaded.
[3] The court permitted the trial to proceed under the conditions outlined below,
mindful that pleadings may be amended at any point before judgment, provided no
prejudice results, and that the facts intended to be introduced through the amendment
had already been examined in the evidence, ensuring that no irreparable harm to the
plaintiff is likely to occur.
[4] This issue was also raised before any evidence was led, although it was only
formally argued after the plaintiff had testified. To ensure fairness, the defendant was
permitted to proceed and present its version, consistent with the proposed
amendment, to the plaintiff during cross-examination. This was provisionally allowed
on the explicit understanding that, if the amendment was later refused or did not align
with what was discussed, such evidence would be disregarded. The plaintiff thus gave
evidence.
[5] Once the amended pleadings were filed, it was allowed, in the absence of mala
fides and manifest prejudice. In the interests of justice and fairness, the plaintiff was
granted leave to consider the amended pleadings and, if necessary, to apply to reopen
his case. They did not wish to do so.
Evidence
[6] [6] Before addressing the plaintiff’s evidence, it is appropriate to mention that
various documents were admitted into evidence, and several witnesses were called.
various documents were admitted into evidence, and several witnesses were called.
The documentary exhibits included: a certified copy of the plaintiff’s identity
3
document1; his SAPS 69 criminal record, indicating no previous convictions 2; his
warning statement to the police 3; the docket cover 4; the charge sheet, which states
that the case was withdrawn before plea due to a lack of a prima facie case 5; the bail
application record6; the statement of the arresting officer, Sgt Molate Rasetsoke7; the
statement of the supporting officer, Sgt Lebogang M Dikok, along with scene
photographs depicting, among others, the hijacked vehicle and the toy firearm
recovered at the scene
8; and the statement of the investigating officer, Sgt Bonginkosi
Baloyi9. The plaintiff, Mr Phumlani Miya, testified in support of his claim, while evidence
was also led from Sgt Rasetsoke, Sgt Dikok, Sgt Baloyi, and Ms Coert, a regional
prosecutor then stationed at the Roodepoort Magistrates’ Court.
Plaintiff’s Evidence
[7] The plaintiff seeks damages for unlawful arrest, detention, and malicious
prosecution arising from events that took place on the night of 30 August 2020. The
plaintiff’s evidence can be summarised as follows: on the evening of 30 August 2020,
between approximately 7 pm and 8 pm, the plaintiff visited a friend, Siphesihle, in
Braamfischer, where they attended a “street bash”. Later that evening, two individuals
unknown to him, a male driver and a female passenger, arrived in a red Volkswagen
Polo. The male driver was introduced to him as Linda, and Siphesihle told him it was
his brother. He does not recall the name of the female passenger.
[8] Siphesihle then invited him (the plaintiff) to join them on a drive to buy alcohol
and drugs at a shebeen, which is how he ended up in the vehicle. The plaintiff stated
that he sat behind Linda, in the right rear seat. The woman sat in the front passenger
seat, and Siphesihle sat behind her in the left rear seat. His evidence was that when
1 Exhibit A.
2 Exhibit B.
3 Exhibit C.
4 Exhibit D.
5 Exhibit E.
6 Exhibit F.
7 Exhibit G.
8 Collectively referred to as Exhibit H.
9 Exhibit J.
4
he entered the vehicle, he did not know that it had been hijacked and was unaware of
any police investigations relating to the hijacking. He testified that he had no reason
to believe or suspect that the vehicle did not belong to Linda, whom he had just met.
[9] They drove through the streets when police suddenly stopped them with
flashing lights. As soon as the vehicle halted, Linda alighted from the vehicle without
saying a word and ran away. Siphesihle followed immediately thereafter. The plaintiff
testified that he then heard gunshots and, fearing for his life and not knowing who the
police were shooting at or why, he also alighted from the vehicle and ran away. He ran
in the direction Siphesihle had gone and, as he did so, saw what he believed to be
Siphesihle lying on the ground, though he initially thought Siphesihle had merely
tripped. The plaintiff stated that, in his opinion, he posed no threat, either by words or
conduct, to the police and that neither he nor any of the other occupants were in
possession of any weapons. When he later ran into police officers, he did not resist
their detention. However, the police assaulted him, striking him on both sides of his
head with their hands and accusing him of theft, though he protested his innocence.
[10] The plaintiff was arrested on 30 August 2020 and detained in the holding cells
at Dobsonville Police Station. He made a statement to the police , explaining how he
ended up in the car and expressing his surprise at being stopped by the police.
Importantly, in this statement, his sequence of events was that Linda and Siphesihle
jumped out of the car and started running, and that he then followed them, and that he
then heard gunshots, whereafter the police arrested him on the adjacent property. He
stated did not know that the car had been stolen.
[11] His first court appearance was via audiovisual link at the Roodepoort
Magistrate’s Court on 1 September 2020, where the State opposed bail. He was
Magistrate’s Court on 1 September 2020, where the State opposed bail. He was
formally refused bail on 23 September 2020 after a bail hearing. He remained in
custody at Krugersdorp Correctional Services from 1 September 2020 until 2
November 2020, when the charge of robbery with aggravating circumstances was
withdrawn due to lack of prima facie evidence. The plaintiff testified that he was
detained for 63 days in inhumane conditions, causing him severe psychological and
emotional harm and violating his rights to freedom and dignity.
5
[12] The plaintiff further testified that this experience has left him unable to trust
anyone, damaged his relationships, and made it difficult for him to seek assistance
from the police. He stated that he grew up in a religious family and now finds it hard to
process what happened to him. He expressed a desire for a cleansing ceremony to
help him move on with his life.
[13] The plaintiff was not a nervous witness, although he chewed gum quite
vigorously until the interpreter told him to stop. His request that the court perform a
“cleansing ceremony” can also be interpreted as his wish for his name to be cleared.
[14] In general, his evidence was plausible. However, his warning statement, read
alongside the subsequent testimony of the other witnesses, significantly undermines
his version that he only started running after the police fired shots. On a balance of
probabilities, it is more likely that he ran before the shots were fired. This finding is
relevant to the assessment of whether the arresting officer’s suspicion was reasonably
formed and that the arrest was lawful.
[15] The plaintiff then closed his case.
Absolution from the instance application
[16] At the close of the plaintiff’s case, the defendant applied for absolution from
the instance for the unlawful arrest, unlawful detention, and malicious prosecution,
submitting that the plaintiff’s burden of proof had not been met as they had not
established their claim against the defendant.
[17] The test for absolution is well-established.
10 It requires that, at the close of the
plaintiff’s case, the court consider whether there is evidence upon which a court,
applying its mind reasonably to such evidence, could or might find for the plaintiff. This
requires a court to find prima facie evidence on all elements of the claim.11
10 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) is the classic case.
11 Schwikaard PJ (2023) Principles of Evidence (Juta) p 32-665.
6
[18] Erasmus 12 points out two ways to understand prima facie evidence in this
context. Firstly, in the sense that there is some evidence on each element of the claim
to prevent absolute dismissal. And secondly, in the sense, that there is evidence that
demands a response from the opposing side, or that if the other side fails to rebut, that
the evidence then becomes conclusive, and the party bearing the burden will have
fully discharged that burden. In both instances, the court must accept that the plaintiff’s
evidence is true. In instances of doubt, the court should rather lean on the side of
allowing the case to proceed, rather than depriving the plaintiff of his remedy without
the evidence of the defendant.
13
[19] The court refused absolution from the instance as the position in unlawful arrest
cases, in my view, is more nuanced. When the defendant denies the unlawfulness of
an arrest, the defendant bears the burden of proving that the arrest was lawful. 14 The
plaintiff simply needs to prove that he was arrested, which is undisputed. The arrest
will then be deemed unlawful. The defendant must then bear the burden of proving the
lawfulness of the arrest, and the lawfulness of the arrest remains to be established. In
situations where the onus is on the defendant, there can be no question of absolution
from the instance at the end of the plaintiff’s case.15 If the defendant fails to discharge
that burden, the proper order is judgment in favour of the plaintiff, not absolution from
the instance.16
[20] The court cannot assess the lawfulness of the arrest without hearing the
defendant’s evidence, as the plaintiff was detained without a warrant, which requires
evidence concerning the arresting officer’s discretion. This was not possible based
solely on the plaintiff's account in this case. Naturally, the issue of the lawfulness of
detention follows from the arrest. Concerning malicious prosecution, the plaintiff has
detention follows from the arrest. Concerning malicious prosecution, the plaintiff has
provided evidence indicating that the elements may be satisfied and that the defendant
might have a case to answer for continuing the prosecution despite the deficiencies in
the investigation.
12 Erasmus D1 Rule 39-17.
13 Erasmus D1 Rule 39-18.
14 De Klerk v Minister of Police [2019] ZACC 32.
15 Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 SCA para 8.
16 Arter v Burt 1922 AD 303 at 306.
7
[21] The defendant then called its witnesses.
Evidence for the Defendants
Witness 1: Seargeant Molate Rasetsoke (Arresting Officer)
[22] Sgt Rasetsoke, a sergeant in the South African Police Service with over ten
years’ experience at the Westrand Flying Squad, testified in Sepedi through an
interpreter. On the night of 30 August 2020, he and his colleagues were on crime
prevention duty when they received a radio report of a hijacked red VW Polo Vivo,
along with its registration number, and a vehicle tracker signal indicating that the
vehicle was “repeating” in Braamfischer.
[23] In the early hours of the morning, at approximately 00h30–01h30, they located
a red Polo matching the description and registration. As the police vehicles
approached, the Polo stopped, and the occupants began to alight and run away.
According to his evidence, the plaintiff was the first person he saw running from the
vehicle. He immediately pursued the plaintiff on foot. While chasing him, he heard
gunshots. He continued pursuing him through the nearby area, apprehended him, and
informed him of his constitutional rights before and again after the arrest. His evidence
was that plaintiff was unable to provide any explanation for why he had run . He
admitted that he was not in possession of a warrant of arrest and stated that he
effected the arrest based on the hijacking report and the radio information that multiple
African male suspects were being sought in connection with that suspected hijacking.
[24] He denied assaulting the plaintiff and stated that he apprehended, searched,
and detained him following standard SAPS procedures. He testified that he bore no
ill-will towards the plaintiff. He confirmed that a firearm was found at the scene, booked
in at Dobsonville SAPS, and that photographs of the firearm and the hijacked vehicle,
including its number plate, were taken and later admitted into evidence as part of the
scene documentation.
scene documentation.
[25] During cross-examination, he was questioned about the lack of any prior
complainant statements or identification, the fact that no independent investigation
8
was conducted at the scene to differentiate between innocent and guilty occupants,
and the seeming arbitrariness of targeting the plaintiff. He asserted that he acted
based on real-time vehicle tracking information and radio instructions, and that he
targeted the plaintiff because he saw him getting out of the highjacked vehicle and
running away. Counsel for the plaintiff challenged the notion that running away, in a
situation where shots were being fired, necessarily indicated guilt. Nevertheless, he
remained firm that fleeing from a hijacked vehicle upon police arrival constituted
reasonable suspicion and that he had followed all required procedures.
[26] His evidence gave rise to conflicts on the number of people in the vehicle and
the order in which they fled. He testified that he personally saw only the plaintiff leaving
the vehicle, and that he learnt about the other occupants, including the deceased and
the female passenger, from his colleagues when he returned to the scene.
[27] He reiterated that he did not witness or participate in any assault on the plaintiff
and that, once apprehended, the plaintiff did not resist and was cooperative during the
return to the scene and the subsequent proceedings detention.
[28] In re-examination, he confirmed that he arrested the plaintiff because he found
him alighting from the hijacked vehicle and fleeing the scene. He stated that if the
plaintiff had not been in that vehicle, or had he been able to provide a satisfactory
explanation for his behaviour, he would not have arrested him.
Witness 2: Seargeant Lebogangh Dikok
[29] Sgt Dikok, attached to the same Westrand Flying Squad unit, testified that he
was on duty on the night of 30 August 2020 when his team received information from
the vehicle tracking company that a recently hijacked red VW Polo Vivo was “reporting”
in Braamfischer.
[30] Alongside Warrant Officer Jacobs and other members, he proceeded to
in Braamfischer.
[30] Alongside Warrant Officer Jacobs and other members, he proceeded to
intercept the a alleged hijacked vehicle. When they spotted the Polo and approached
with blue lights flashing, the vehicle stopped. The driver’s door opened, and the driver
immediately got out of the vehicle and ran across the road towards nearby houses,
9
shortly followed by a rear-seat passenger. According to Sgt Dikok, the rear right
passenger appeared to be holding what looked like a firearm and pointed it towards
the police. W/O Jacobs first fired a warning shot and shouted at the man to drop the
firearm, then fired two more shots in his direction. That passenger, later identified as
Siphesihle, fell and was later found to have been fatally wounded. The female front
passenger, later identified as Ms Minaar, remained in the vehicle, was questioned at
the scene, and was then arrested by Sgt Dikok for further investigation. Sgt Rasetsoke
returned shortly after, having apprehended the plaintiff, whom he had pursued into the
veld. Both the plaintiff and Ms Minaar were placed under arrest and informed of their
constitutional rights.
[31] In cross-examination, he was confronted with discrepancies regarding the
exact number of suspects, the order in which the occupants left the vehicle, and the
nature of the threat allegedly posed by the rear passenger. He acknowledged that the
“firearm” found next to the deceased was later identified as a small black plastic toy
gun but stated that this fact only became known during the subsequent investigation
and that, at the time of the incident, it appeared to them to be a real firearm.
[32] He maintained that, given the circumstances, it was necessary and appropriate
to arrest all individuals found in the hijacked vehicle to ensure their attendance in court
and facilitate a proper investigation, describing this as standard procedure in serious
violent crime cases. He denied that the plaintiff had been manhandled or subjected to
excessive force, stating that once the plaintiff was brought back from the veld, he was
not acting in any strange or threatening manner. During re-examination, he confirmed
that he was the officer who arrested Ms Minaar, that four people were with the vehicle
at the time (the driver, the deceased rear passenger, the female front passenger, and
at the time (the driver, the deceased rear passenger, the female front passenger, and
the plaintiff as the remaining rear passenger), and that his description of the seating
arrangement matched the plaintiff’s account of where each person had been seated
Polo.
Evidence of Sergeant Bonginkosi Baloyi (Investigating Officer)
[33] Sgt Bonginkosi Baloyi, attached to the serious violent crime unit, was the
investigating officer responsible for the docket after the hijacking that led to the
10
plaintiff’s arrest. In his statement, he noted that four suspects were linked to the
hijacked vehicle: two were apprehended, one fled the scene, and one was fatally shot
and he confirmed that the vehicle matched the hijacking report. He obtained the
Roodepoort hijacking docket and, together with the arresting officers’ statements and
the SAP 13 entries for cartridges and the firearm, prepared the matter for court.
[34] Sgt Baloyi was not present when the plaintiff’s warning statement was taken,
as this was done by the arresting officers. He did not re -interview Sgt Rasetsoke,
instead relying on his written statement. He testified that he returned to the scene, but
this did not provide new information.
[35] As to the plaintiff’s explanation that he was a passenger in the vehicle with one
woman and three men, Sgt Baloyi stated that the plaintiff’s presence in the hijacked
vehicle shortly after the hijacking, his attempt to run away and, in Sgt Baloyi’s view,
the lack of a satisfactory explanation for his presence, formed the basis for considering
him a suspect. He testified that the complainant in the hijacking could not identify any
of the perpetrators because the incident occurred too quickly, and that no identity
parade was conducted after the arrest.
[36] Sgt Baloyi stated that he completed his investigation and finalised the docket
within approximately 24 hours of the arrest and that the matter was brought before the
court within 48 hours of the arrest. He considered his role to be limited to investigation
and docket preparation. The remand of the plaintiff and the refusal of bail were, in his
opinion, matters for the court. He was aware that the case was later withdrawn with
the endorsement that there was “no prima facie case”, but he testified that he could
not recall the exact reasons for the withdrawal and that, at the time of handover, he
believed the case was ready for prosecution.
[37] In cross-examination, Sgt Baloyi acknowledged that his investigation mainly
[37] In cross-examination, Sgt Baloyi acknowledged that his investigation mainly
depended on the existing police statements and exhibits, and that he did not undertake
any further detailed interviews with the arresting officers or other witnesses apart from
contacting the complainant, who stated that he would not be able to identify the alleged
hijackers. He admitted that no identity parade was arranged. He also accepted that he
was not present when the plaintiff and the female co-accused, Ms Minaar, made their
11
statements, and that at the time of giving evidence, he did not have a clear recollection
of the contents of those statements or the exact outcome of the case against Ms
Minaar.
[38] In cross-examination, Sgt Baloyi admitted that, by the time the case reached
court and bail was opposed, he knew that the complainant would not be able to identify
the alleged hijackers. However, he stated that this was not the only evidence
connecting the plaintiff to the incident, and that the plaintiff’s explanation for his
presence in the vehicle was not, in his view, convincing.
Evidence of Ms Coert (NPP, Roodepoort Magistrate Court)
[39] Ms Coert, a regional court prosecutor at the Roodepoort Magistrates’ Court,
testified that when she received the docket, the charge being prosecuted was robbery
with aggravating circumstances, a Schedule 6 offence. The contents of the docket at
that stage included statements by the police officers involved in the arrest, the Tracker
documentation, and the warning statement(s). She explained the usual bail position in
Schedule 6 matters, namely that the State is expected to oppose bail unless the
accused can demonstrate exceptional circumstances and confirmed that the
magistrate, ultimately, refused bail in this case.
[40] Ms Coert stated that, based on the information in the docket, the matter
established a prima facie case: the plaintiff had been found in the hijacked vehicle
shortly after the incident and had fled when the police arrived. She indicated that the
prosecutor who initially placed the matter on the roll did so within their mandate, and
that, had she been involved in the enrolment decision on the same facts, she would
also have enrolled the case.
[41] She testified that, although there is liaison between police and prosecutors, the
ultimate discretion whether to enrol or withdraw a matter lies with the prosecution. She
denied acting with any malice or improper motive, stating that she acted lawfully and
denied acting with any malice or improper motive, stating that she acted lawfully and
objectively, and that the later withdrawal of the charges with an endorsement of “no
prima facie case” did not, in her view, make the earlier decision to proceed improper.
12
The law
[42] A foundational value in our Constitution is the rule of law, and in the context of
arrest without a warrant, it requires that the State’s authority be exercised within the
confines of the law. Authority not exercised within the parameters of the law will, thus,
also offend the Constitution. When it comes to arrest without a warrant, the Criminal
Procedure Act17 sets out the legal requirements.
Unlawful arrest
[43] Unlawful arrest must be scrutinised through the lens of section 12(1) of the
Constitution and the right not to be arbitrarily deprived of freedom and security of the
person. Since an arrest removes an individual's freedom and security, it must not be
arbitrary to comply with the Constitution. Section 40(1)(b) of the Criminal Procedure
Act18 and relevant case law help the court determine whether an arrest is lawful and
falls within the scope of section 12(1) of the Constitution.
[44] Section 40(1)(b) of the Criminal Procedure Act 19 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 (which includes robbery and theft).
The onus is on the arresting officer to show that the arrest was lawful.
[45] The requirements were set out in Duncan v Minister of Law and Order ,
20
namely:
a. The arrestor must be a peace officer.
b. The arrestor must entertain a suspicion.
c. The suspicion must be that the arrestee committed a Schedule 1
offence.
d. The suspicion must rest on reasonable grounds.
[46] It is not in dispute that the arrestor is a peace officer.
17 51 of 1977.
18 51 of 1977.
19 51 of 1977.
20 1986 (2) SA 805 (A).
13
[47] As for the requirement of a “reasonable suspicion”, Mabona v Minister of Law
and Order21 stated the following:
“The test of whether a suspicion is reasonably entertained within the meaning of s
40(1)(b) is objective ( S v Nel and Another 1980 (4) SA 28 (E) at 33H). Would a
reasonable man in the second defendant's position and possessed of the same
information have considered that there were good and sufficient grounds for
suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession
of stolen property knowing it to have been stolen? It seems to me that in evaluating his
information a reasonable man would bear in mind that the section authorises drastic
police action. It authorises an arrest on the strength of a suspicion and without the
need to swear out a warrant, ie something which otherwise would be an invasion of
private rights and personal liberty.
The reasonable man will therefore analyse and assess the quality of the information at
his disposal critically, and he will not accept it lightly or without checking it where it can
be checked. It is only after an examination of this kind that he will allo w 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 requir es 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.”
[48] The test is objective: would a reasonable person, confronted with the same
information, suspect the arrestee? The officer must assess the information critically,
but does not need prima facie proof of guilt, only reasonable grounds for suspicion.
[49] Once the jurisdictional facts are met, the officer has discretion to arrest. This
discretion must be exercised rationally and in good faith.
22 Minister of Safety and
discretion must be exercised rationally and in good faith.
22 Minister of Safety and
Security v Sekhoto23
21 1988 (2) SA 654 (SE).
22 Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 SCA.
23 2011 (1) SACR 315 SCA para 28.
14
"once the required jurisdictional facts are present, the discretion or not to arrest arise.
Peace officers were entitled to exercise this discretion as they saw fit, provided they
stayed within the bounds of rationality. The standard was not breached because an
officer exercised the discretion in a manner other than that deemed optimal by the
Court. The standard was not perfection, or even the optimum, judged from the vantage
of hindsight, and, as long as the choice made fell within the range of rationality , the
standard was not breached".
[50] In other words, this court must determine whether the arresting officer acted
rationally when he arrested the plaintiff.
[51] From the facts outlined above, it is undisputed that Sgts Rasetsoke and Dikok
are peace officers. They suspected the plaintiff of robbery with aggravating
circumstances (hijacking), which is a schedule 1 offence. This suspicion was
reasonable: the police received real-time information that a red VW Polo Vivo had
been hijacked in Florida and was being tracked in Braamfischer. When the police
located the vehicle matching that description, they stopped it, and the applicant exited
the vehicle and fled the scene. Fleeing from a recently hijacked vehicle is a strong
objective indicator of at least potential involvement in the hijacking. Considering the
evidence before the court, on a balance of probabilities, the plaintiff got out of the
vehicle and left the scene before the shots were fired, and not because they had been
fired. This enhances the reasonableness of the suspicion.
[52] It might be so that the complainant mentioned “six or seven African males”, and
that only four people (including a female) were found in the vehicle. This, however,
does not negate suspicion. It is reasonable to suspect that the occupants of a stolen
vehicle found shortly after the theft are involved in the crime, and in the absence of an
explanation upon being found in such a stolen vehicle, the officers acted reasonably
explanation upon being found in such a stolen vehicle, the officers acted reasonably
in arresting the plaintiff . The officers also acted reasonably when they decided to
release the female but not the plaintiff, as the complainant had only seen males during
the hijacking.
[53] The officers did not need proof beyond a reasonable doubt at the time of the
arrest; they needed only reasonable suspicion to arrest and secure the suspects (the
15
plaintiff in this case) for further investigation. While the purpose of arrest is to bring the
arrestees before a court, this does not mean that all investigations must be completed
and that the arresting officer must be of the opinion that there is sufficient proof of an
eventual conviction.24 Accordingly, there was reasonable suspicion that the plaintiff
was involved, and the arresting officer exercised his discretion rationally in making the
arrest. The arrest was, thus, within the parameters of section 40(1)(b) of the Criminal
Procedure Act,25 and thus lawful.
Unlawful Detention
[54] Section 35(1) of the Constitution requires that an arrested person has the right
to be brought before a court as soon as reasonably possible, but no later than 48 hours
after arrest.26 In this case, the plaintiff was brought to court upon the first available
court date, and within 48 hours of the arrest. There was reasonable suspicion that he
might have been involved in a serious crime, and the police did not accept his
explanation for how he ended up in the vehicle. There is nothing to suggest that the
police acted maliciously or thought that the plaintiff was innocent and still detained
him.
[55] Once the plaintiff was brought before the court, the authority to detain him
shifted from the police to the judiciary. The refusal of bail was thus a judicial decision,
rather than malice on the part of the police. The police cannot be held liable for further
detention unless they misled the court or acted mala fide.
27 It is then the court's role
to determine whether the plaintiff should be detained pending trial.
[56] After the plaintiff’s first appearance, he was remanded by the magistrate. This
was due to the plaintiff's lack of legal representation. The court also takes judicial
notice that it was during the Covid pandemic, when attorneys faced considerable
24 Manala v Minister of Police [2020] ZAGPPHC 453 paras 25 and 26.
25 51 of 1977.
24 Manala v Minister of Police [2020] ZAGPPHC 453 paras 25 and 26.
25 51 of 1977.
26 Section 50(1)(c) and (d)(i) of the Criminal Procedure Act 51 of 1977.
27 De Klerk v Minister of Police [2019] ZACC 32.
16
challenges accessing their clients who were detained during that time period.28 There
is nothing indicating mala fides on the part of the police or that the police tried to
mislead the court into remanding the plaintiff. When bail was later opposed, it was on
the basis that this was a Schedule 6 offence and that the State is statutorily instructed
to oppose it. The refusal of bail was a judicial decision based on the plaintiff’s failure
to show “exceptional circumstances”, rather than malice on the part of any of the role
players.
[57] Accordingly, I cannot find any evidence that the police or the prosecutor misled
the court or hid exculpatory evidence that would have changed the outcome. The fact
that the case was later withdrawn does not mean that the detention during the remand
period was unlawful.
Malicious Prosecution
[58] Minister of Justice and Constitutional Development v Moleko
29 sets out the
requirements for malicious prosecution. The plaintiff must prove:
a. The defendant set the law in motion (instigated or instituted
proceedings).
b. The defendant acted without reasonable and probable cause.
c. The defendant acted with malice ( animus injuriandi).
d. The prosecution failed.
[59] It is not disputed that the second defendant set the law in motion or that the
prosecution failed.
[60] To prove a lack of reasonable and probable cause for prosecution, the matter
of Beckenstrater v Rottcher
30 set out the test that the plaintiff must satisfy. Firstly,
the objective test requires that the information available to the prosecutor must be
28 See, for instance, the report of the Democratic Governance and Rights Unit entitled “Impact of COVID-19 on the
administration of justice in Namibia, Malawi and South Africa” available at https://www.judgesmatter.co.za/wp-
content/uploads/2022/05/COVID19-Report -State-of-Judiciary-in-Malawi-Namibia-and-South-Africa-2022.pdf
29 [2008] ZASCA 43 para 8.
30 1955 (1) SA 129 (A) at 136A-B.
17
such that a reasonable person would not have concluded that the accused was
probably guilty of the offence charged. Alternatively, under the subjective test, even if
a reasonable person might have believed the accused guilty on the facts presented,
the prosecutor themselves must be shown not to have honestly believed in the
accused's guilt. If the prosecutor lacked a genuine, honest belief in the accused's guilt,
regardless of how the facts might appear to a reasonable outsider, then reasonable
and probable cause did not exist.
[61] The malice requirement was dealt with in Relyant Trading (Pty) Ltd v
Shongwe
31 where the Supreme Court of Appeal stated:
“Where relief is claimed by this actio the plaintiff must allege and prove that the
defendant intended to injure (either dolus directus or indirectus). Save to the extent
that it might afford evidence of the defendant’s true intention or might possibly be taken
into account in fixing the quantum of damages, the motive of the defendant is not of
any legal relevance.”
[62] Furthermore, in Minister of Justice and Constitutional Development v Moleko 32
the Supreme Court of Appeal added that
“The defendant must thus not only have been aware of what he or she was doing in
instituting or initiating the prosecution, but must at least have foreseen the possibility
that he or she was acting wrongfully, but nevertheless continued to act, reckless as to
the consequences of his or her conduct ( dolus eventualis). Negligence on the part of
the defendant (or, I would say, even gross negligence) will not suffice.”
[63] At the time this case was enrolled, the prosecutor had the same objective facts
as the arresting officer: that the plaintiff was caught in a hijacked vehicle and ran away.
There was a vehicle tracking report that placed the stolen vehicle at the scene, there
was a relatively short time period from the hijacking to the vehicle being stopped, and
was a relatively short time period from the hijacking to the vehicle being stopped, and
even if it was possible that people could have been dropped off and picked up, it does
not change the fact that the plaintiff was caught in a stolen car, and ran away when
31 2007 1 All SA 375 (SCA) para 14.
32 [2008] ZASCA 43 para 64.
18
the police stopped the vehicle. He did not explain at the scene why he was there, and
his warning statement did not provide an adequate explanation to the officers either .
An objective look at the docket in September 2020 supports the conclusion that
reasonable and probable cause existed. The later withdrawal on the basis that there
is “no prima facie case” indicates a prosecutorial decision, after further investigation
or, rather, non-investigation, and that the case does not have much merit. The fact
that the case later became hopeless does not mean it was so at the beginning of the
process. The plaintiff , thus, failed to prove that he acted without reasonable and
probable cause.
[64] Even if one could find in favour of the plaintiff on the first three requirements,
there is no evidence that the fourth requirement is met. There is simply no evidence
of personal animosity, spite, or an intent to injure the plaintiff on the part of any of the
second defendant’s role players. It does not logically follow that because the female
passenger was released, the plaintiff was pursued spitefully or with malicious intent.
This rested on the complainant’s description of the hijackers, who did not include a
female.
[65] There is no evidence of personal animosity, spite, or intent to injure the plaintiff
on the part of the police or the prosecution. They acted within the confines of the law,
relied on a prima facie case as set out in the docket, and had no personal knowledge
of the plaintiff. Mere continuation of prosecution, and later withdrawal of charges, does
not justify an inference of malice.
Conclusion
[66] To conclude, the plaintiff has failed to prove that the arrest or detention was
unlawful. The plaintiff has also failed to prove the requirements for malicious
prosecution (specifically, the absence of reasonable cause and the presence of
malice). The claim must thus be dismissed.
[67] The plaintiff’s request that the court perform a cleansing ceremony, or clear his
[67] The plaintiff’s request that the court perform a cleansing ceremony, or clear his
name, is not possible, also because what was before the court was not his guilt or
innocence. The plaintiff may be innocent, and the arrest and detention lawful, and the