IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: 2902/2022
Reportable Yes/No

In the matter between:

LUVO JONNATHAN DAMA Plaintiff


and

MINISTER OF POLICE 1st Defendant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Defendant


JUDGMENT

Cengani-Mbakaza AJ
Introduction
[1] The plaintiff instituted an action against the Minister of Police (the first

defendant) and the National Director of Public Prosecutions (the second
defendant), claiming damages. In respect of the first defendant, the plaintiff
claims an amount of R250 00 0 (Two Hundred and Fifty Thousand Rand) for
the alleged unlawful arrest and detention.
[2] In addition, the plaintiff seeks damages to the amount of R500 000 (Five
Hundred Thousand Rand) against the first and second defendant for unlawful
detention post-court appearance, jointly and severally, the one paying the other
to be absolved. Furthermore, the plaintiff claims damages to the amount of
R250 000 (Two Hundred and Fifty Thousand Rand) against the first and
second defendants for malicious prosecution.
[3] It is common cause that the arrest was effected by the members of the
South African Police Services (SAPS) who were acting within the course and
scope of the first defendant’s employment.
[4] At a pre -trial conference held on 12 August 2024, the parties agreed that
the defendants would bear onus and the duty to begin with the alleged unlawful
arrest and detention. The parties further agreed that the plaintiff would bear
onus to prove malicious prosecution. Furthermore, it was agreed that ther e
would be no separation of issues between the merits and the quantum. This
agreement was subsequently endorsed at the commencement of the trial
proceedings.
The pleadings
[5] In pursuit of the claim for unlawful arrest and detention against the first
defendant, the plaintiff alleges that SAPS lacked justification for arresting him,
as no reasonable grounds existed to suggest that he committed the alleged
crimes of robbery or attempted murder. Therefore, SAPS acted with ulterior
motive, by arresting him for purposes not permitted by the legislature. The
arresting officer used his power to arrest to frighten and harass him.

[6] The plaintiff further contends that the arresting officer failed to consider
his explanation during his arrest, as there was no evid ence linking him to the
alleged crimes. He asserts that the arresting officer failed to consider the strong
alibis that favoured him during the arrest and did not critically analyse the
information they had.
[7] The plaintiff aver further that the arresting officer should have considered
alternative means to secure his court attendance. Consequently, the plaintiff
asserts that his arrest and detention from 27 to 30 September 2019 was
unlawful.
[8] The plaintiff alleges that his detention from 30 Septembe r 2019 to 14
October 2019 was unlawful, as he was held for 18 days before his bail hearing
due to the actions of the first and second defendant. He alleges that he was
detained for crimes he had no knowledge of without his constitutional rights
being properly considered.
[9] The plaintiff alleges malicious prosecution claiming that the first and
second defendants set the law in motion by laying false charges against him.
They also opposed his bail without reasonable cause, driven by malice. The
plaintiff a sserts that the public prosecutor failed to assess the strength of the
state’s case, including determining if prima facie evidence existed. He claims
that the public prosecutor failed to ensure his release on bail or warning ,
considering the lack of prima facie evidence against him.
[10] In their plea, the defendants deny that the plaintiff’s arrest and detention
was unlawful. Furthermore, they aver that the plaintiff was facing charges of
robbery with aggravating circumstances, attempted murder and intimi dation
falling under Schedule 6 in terms of bail legislation.
[11] The defendants aver that the case docket exhibited a prima facie case
against the plaintiff, justifying arrest to bring him to justice. They claim that

they acted in good faith, without ma lice. Also, the detention post -court
appearance was per the presiding officer’s orders.
The plaintiff’s case.
[12] The plaintiff testified that at the time of the incident he was staying at
Ndlovini location working at Happiness Panel Beaters with his co -employees
Messrs Thembani Zweni (Mr Zweni) and Mamush. On 27 September 2019, at
around 5 o'clock in the morning, abo ut four police officers accompanied by a
foreign national (the complainant) known to him visited his home. The
complainant pointed him out, the police officers hit him with a torch, making
his family members including his children to stand up.
[13] They took him to the police station where he was made to sign a certain
document. Although the contents of the document were not explained to him, it
reflected a charge of attempted murder. When his fingerprints were taken, he
was informed that he was being char ged for attempted murder charge. He told
the police that he had an alibi, having been at work, not at the crime scene. The
plaintiff testified that he was not taken to court on 27 September 2019 for
unknown reasons.
[14] He was taken to court on 30 Septemb er 2019 and without legal
representation, he was advised that bail would be denied due to a previous
conviction of assault with intent to do grievous bodily harm. He testified that
the statement that he had a previous conviction was false, as the case of a ssault
with intent to do grievous bodily harm was withdrawn without any conviction
against him.
[15] He was then advised that the matter would be transferred to the Regional
Court. The case was postponed several times until charges were withdrawn by
the state on 06 April 2021.

[16] When asked if there was any evidence linking him with the offence, he
testified that there was none, except that the complainant pointed him out as the
perpetrator. Under cross -examination, he was confronted about the allegations
in his particulars of claim where he stated that the police assaulted him with a
gun. He refuted this, conceding that no guns were used in the assault.
[17] When asked what the police should have done given the fact that he was
pointed out by the complain ant, he stated that the police were within their right
to do their job. Later in cross -examination, the plaintiff conceded that he never
presented his alibi to the police.
[18] Mr Zweni testified that the plaintiff could not have been at the crime
scene since he was with him on duty when the incident happened. He saw the
plaintiff being arrested and told the police that the plaintiff was with him at the
time of the commission of the crime. The police informed him that the
complainant pointed the plaintiff o ut and there was nothing they could do.
When asked about specific dates, including the dates he claimed he was on duty
with the plaintiff, he could not recall.
The defendants’ case
[19] Mr Mwezi Gwedashe (Mr Gwedashe), a regional court prosecutor
testified that he received the police docket on 30 September 2019. The docket
was brought to him by the investigating officer and was asked to make a
determination on whether the case should be enrolled or not.
[20] Upon examination of the police docket, h e noticed that the investigation
was incomplete. The medical report, commonly known as the J88 as well as
SAP 69s were outstanding. Despite incomplete investigation, the docket
included the complainant’s statement, arresting officer’s statement, statement of
injuries, bail information sheet, the explanation of the plaintiff’s constitutional
rights and the police diary.

[21] He decided to prosecute based on prima facie evidence. When asked for
the reasons for his decision, he testified that the complainant a nd the plaintiff
knew each other, the complainant had an opportunity to identify him, and
alleged that the plaintiff took his money. The plaintiff put the gun on the
counter while looking at each other. Mr Gwedashe further explained that despite
being char ged with attempted murder, a further charge of robbery with
aggravating circumstances was later added against the plaintiff.
[22] When confronted about the opposition of bail based on the previous
conviction of assault with intent to do grievous bodily ha rm, Mr Gwedashe
testified that bail would have been opposed in any event due to the schedule 5
offence of attempted murder, regardless of the mistake about the plaintiff’s
previous conviction.
[23] Under cross -examination, Mr Gwedashe testified that he cha rged the
plaintiff on attempted murder based on the complainant’s injuries which he
considered potentially fatal.
[24] According to the docket statements , in particular the statement of
injuries, the complainant’s names were different. When asked to expl ain the
discrepancy, Mr Gwedashe explained that police officers are not well versed
with names of foreign nationals. He conceded however, that he did not notice
the discrepancy regarding the complainant’s names.
[25] Constable Khanyisile Nkihlana (the arre sting officer) testified that the
incident happened on 19 September 2019, and the complainant was detained in
hospital until 23 September 2019. On 23 September 2019, he interviewed the
complainant who informed him that the plaintiff , Luvo, who stays in t he same
area was the perpetrator of the crime.
[26] He asked the complainant to show him where the plaintiff lived. Together
with the complainant, he went to the plaintiff’s place, and the complainant

pointed out the plaintiff as the person who shot him with a firearm. Under cross-
examination, the arresting officer was informed that he did not properly exercise
his discretion to arrest. He explained that he considered the seriousness of the
offence and the weapon used, concluding that arrest was the only option.
[27] When confronted about not doing an identification parade, he explained
that the complainant named the plaintiff, Luvo, and pointed him out, therefore,
an identification parade was not necessary.
[28] The last witness to be called by the defenda nts was Ms Chwayita
Mkhwayimbana (Ms Mkhwayimbana), the public prosecutor. She testified that
she could not proceed with bail application on 10 October 2019 and only dealt
with it on 14 October 2019. She explained that on 10 October 2019, it was late
afternoon when she received the plaintiff’s docket for consideration and his case
was crowded out due to a busy schedule. She stated that after receiving the
docket, she spoke to the investigating officer about the bail proceedings.
[29] She testified that att empted murder charge which according to her
involved the infliction of grievous bodily harm fell under schedule 5 in terms of
bail legislation.
[30] After examining the docket, she concluded that the plaintiff would likely
interfere with witnesses because he allegedly went to the complainant’s shop
two days after the incident and threatened to shoot him. Ms Mkhwayimbana
opined that this demonstrated a risk of interference with investigations and
opposed the granting of the plaintiff on bai l. Despite the state’s opposition, the
magistrate granted bail to the amount of R1000.
[31] Regarding the merits of the case, she testified that identification was not
an issue since the parties knew each other. Although half -masked, the
complainant named the plaintiff and pointed him out as the perpetrator.

Issues
[32] The primary issue for determination is whether the plaintiff’s arrest and
detention on a charge of attempted murder was justified. Additionally, this court
must assess whether in arresting t he plaintiff, the arresting officer objectively
exercised his discretion. Furthermore, it must be determined whether the post -
detention court proceedings were legally justified. Lastly, this court must
consider whether the SAPS and the prosecutors acted wi th ulterior motive in
motivating the plaintiff’s detention post -court appearance. Finally, the issue is
whether the SAPS and the prosecutors acted with collusion -driven malice in
prosecuting the plaintiff.
The law and the court’s analysis of evidence
Arrest and detention from 27 September 2019 to 30 September 2019
[33] Pursuant to s 38 of the Criminal Procedure Act 1 (CPA), arrest is one of
the methods of securing the attendance of the accused to the court. In terms of
the Constitution everyone has a right to freedom from arbitrary deprivation of
liberty without just cause. 2 In instances where the arrest is deemed ne cessary,
the onus rests with the arrestor to demonstrate that the arrest was objectively
justifiable and lawful. The Supreme Court of Appeal (SCA) in Minister of Law
and Order and Others v Hurley an Another3, stated:
‘An arrest constitutes an interference with the liberty of the individuals concerned, and
it therefore seems to be fair and just to require that the person who arrested or caused
the arrest of another person should bear the onus of proving that his action was justified
in law.’

1 Act 51 of 1977.
2 Section 12,of Act 108 of 1996, The Constitution.
3 [1986] ZASCA 53, [1986] 2 ALL SA 428 (A);1986 (3) SA568 (A) at 589E -F; see also Hlape v Minister of
Police (426/2023) [2024] ZASCA 68; 2024 (2) SACR 148 (SCA) (3 May 2024).

[34] Section 40 (1) (b) of the CPA, empowers a peace officer to arrest a
suspect without a warrant in circumstances where there is a reasonable
suspicion that the suspect has committed a Schedule 1 offence, excluding the
offence of escaping from lawful custody.
[35] The SCA in Duncan v Minister of Law and Order 4(Duncan) set out four
jurisdictional facts which flow from s 40 (1) of the CPA. These are: that the
person arresting must be a peace officer, who entertained a suspicion, that the
suspect committed a sch edule 1 offence and that the suspicion vested on
reasonable grounds.
[36] Upon establishing the jurisdictional facts contemplated in section 40(1)
of the CPA, the arresting officer is vested with the discretion to decide whether
to arrest the suspect, t hereby exercising his power. The law sets important
principles in the exercise of a discretion.
[37] These principles were set out by Harms DP in Minister of Safety and
Security v Sekhoto5 (Sekhoto) and later confirmed by the Constitutional Court in
Groves NO v Minister of Police (Groves)6. In Groves7, the CC stated:
‘[50] When making an arrest, a peace officer is required to respect, protect, promote
and fulfil constitutional rights.’
[38] Referring to Sekhoto8, the CC9 held:
‘Once the jurisdictional facts for an arrest, whether in terms of any paragraph of
section 40(1) or in terms of section 43 are present, a discretion arises. The question
whether there are any constraints on the exercise of discretionary powers is essentially a

4 [1986] ZASCA 24; [1986] 2 All SA 241 (A); 1986 (2) SA 805 (A) at 818G-H.
5 [2010] ZASCA 141; 2011 (5) SA 367 (SCA); 2011(1) SACR 315 (SCA); (2011) 2 All SA 157 (SCA).
6 [2023] ZACC 36; 2024 (1) SACR 286 (CC); 2024 (4) BCLR 503 (CC) para 50.
7 Ibid.
8 Fn 6 above.
9 See Groves fn 7 supra.

matter of construction of the empowering statute in a manner that is consistent with the
Constitution. In other words, once the required jurisdictional facts are present the
discretion whether or not to arrest arises. The officer, it should be emphasised, is no t
obliged to effect an arrest. This was made clear by this Court in relation to section 43
in Groenewald v Minister of Justice.’[footnote omitted]
[39] In this matter, a case of attempted murder involving infliction of grievous
bodily harm had been established despite being refuted by the plaintiff’s
counsel. It had been established that the complainant was shot in the chest and
detained in hospital for at least four days. The arresting officer’s undisputed
evidence shows that the projectile was stil l in his body during the interviews.
Despite the discrepancy regarding the complainant’s names, it is this court’s
finding that the matter involves only one complainant, a shop owner, a foreign
national and no one else.
[40] Regarding the merits, the p laintiff’s counsel argued that given the issue
with identification of the perpetrator, an identification parade should have been
held before the arrest of the plaintiff. I disagree with this proposition, based on
the fact that the complainant mentioned the perpetrator’s name and pointed him
out to the police. Therefore, holding an identification parade would have been
futile.
[41] Despite this court’s assessment on this issue, it still needs to be
established whether the arresting officer satisfied all t he requirements as set out
in Duncan10. The fact that the arresting officer is a peace officer is undisputed.
The question is whether he entertained a suspicion , based on solid grounds ,
that the plaintiff was involved in the commission of a Schedule 1 offence.
[42] It should be acknowledged that a reasonable suspicion does not equate to
certainty. Although still needs solid grounds, a reasonable suspicion is a lower

10 Fn 5 above.

bar. The SCA in Biyela v Minister of Police 11, per Musi AJA (with Petse AP
and Dlodlo JA and Matonjane and Molefe AJJA held:
‘[34] The standard of a reasonable suspicion is very low. The reasonable suspicion
must be more than a hunch; it should not be an unparticularised suspicion. It must be
based on specific and articulable facts or information. Whether the suspicion was
reasonable, under the prevailing circumstances, is determined objectively.
[35] What is required is that the arresting officer must form a reasonable suspicion
that a Schedule 1 offence has been committed based on credible and trustworthy
information. Whether that information would later, in a court of law, be found to be
inadmissible is neither here nor there for the determination of whether the arresting
officer at the time of arrest harboured a reasonable suspicion that the arrested person
committed a Schedule 1 offence.’
[43] In this instance, the arresting officer’s reliance on the complainant’s
interview and his statement is solid. The plaintiff was allegedly seen by the
complainant in his shop two days before the incident and had threatened to
shoot the complainant asking him to stop selling in the area. He was allegedly
seen by the complainant in broad daylight on 19 September 2019 despite his
face being half masked. He allegedly spoke to the complainant, put a firearm on
top of the counter and later shot him before he took his money.
[44] In addition, the complainant and the plaintiff know each very well living
in the same area. The complainant accompanied the police to where the plaintiff
stayed and pointed him out as the perpetrator. The SC A in Abdul v S 12 per
(Nicholls, Mocumie, Schippers JJA, Tsoka and Meyer AJJA, stated that when
seeing a person who is known to you, it is not a process of observation that
takes place but rather one of recognition. At para 13, the court added that the
time necessary to recognise a well -known person as opposed to identifying a

time necessary to recognise a well -known person as opposed to identifying a

11 (1017/2020) [2022] ZASCA 36; 2023 (1) SACR 235 (SCA) (1 April 2022).
12 Unreported case no (134/2021), [2022] ZASCA 33 (31 March 2022) para 13

person for the first time is very different. It has been recognised by our courts
that where a witness knows the person sought to be identified, or has seen him
frequently, the identification is likely to be accurate.
[45] Given the low threshold for reasonable suspicion set by the SCA in
Biyela13, in this instance the issue of identification hinges on recognition and not
observation, rendering the arresting officer’s actions justifie d. In any event, the
plaintiff conceded that once the complainant pointed him out as the assailant ,
the arresting officer was justified in complying with the law.
[46] The plaintiff’s credibility as a witness is shaky at best. Two major
contradictions in his testimony are glaring red flags. In his particulars of claim,
he stated that given his alibi which he provided upfront during the arrest, the
police should have verified this information before arresting him. In the turn of
events, he admitted that h e never presented the alibi to the police like he
initially claimed.
[47] In addition, although the pleadings suggest that the plaintiff furnished an
explanation to the police, the evidence proves otherwise. In his warning
statement, which was admitted before this court as an exhibit, the plaintiff
elected to remain silent, no explanation was made to the police. Furthermore,
although assault is not the plaintiff’s pleaded case, the untrue allegations of
assault with a gun tarnish the plaintiff’s credibility as a witness.
[48] Mr Zweni’s evidence did not assist the plaintiff at all. He could not
confirm the crucial date he claimed he was with the plaintiff. He could not state
whether this was the same date of the incident. His version about discussing the
incident with the plaintiff while he was in the police van was not confirmed by
the plaintiff. Furthermore, his version about telling the police in relation to the
plaintiff’s alibi directly contradicts the plaintiff’s version. Under cross -

13 Fn 12 above.

examination the plaintiff categorically stated that the police were not aware of
his alibi at the time of arrest.
[49] The last issue on this theme is whether the arresting officer exercised his
discretion to arrest irrationally. The onus is on the plaintiff to prove th is fact on
a balance of probabilities. 14 It is worth noting that notwithstanding the four
methods of securing the accused’s attendance to court, police powers are
potentially limited to only two methods.
[50] Notably, for serious offences like attempted murder, especially with
evidence linking the suspect with crime, as in the present matter, arrest becomes
the preferred method to secure the attendance of the accused to court. This is so
because according to s 38 of the CPA, police can only issue a writ ten notice to
appear in court for less serious offences. The two other methods of securing the
attendance of the suspect to court namely, the summons and indictment are
applicable to prosecutors only and not the police.
[51] In the matter under considera tion, given the gravity of the crime of
attempted murder, which includes the serious threats that the plaintiff allegedly
posed to the complainant two days before the date of the second incident, the
arresting officer was duty bound to arrest the plaintiff for purposes of bringing
him to justice. Therefore, the plaintiff presented no evidence to prove on a
balance of probabilities that the arresting officer exercised his discretion
irrationally, arbitrarily or capriciously.
Detention from 30 September 2019 to 14 October 2019
[52] The plaintiff’s counsel argued that the second defendant provided
incorrect information to the court, stating that the plaintiff had a previous
conviction of assault with intent to do grievous bodily harm. This led to him
being considered under schedule 6 in terms of bail hearing. If correct

14 Duncan fn 5 supra para 819B-D; Sekhoto fn 6 supra para 49.

information were given, so it was argued, this could have been avoided. Citing
the Constitutional Court (CC) judgment of De Klerk v Minister of Police 15 (De
Klerk), counsel submitt ed that the first defendant’s opposition to bail was
“thumb sucked” indicating an ulterior motive for arresting and detaining the
plaintiff.
[53] Furthermore , the first defendant pleaded that the plaintiff was arrested
and detained for robbery with aggravating circumstances, attempted murder and
intimidation, yet the arresting officer’s evidence shows that he was arrested for
attempted murder only. Therefore, so it was argued, both defendants should be
held liable for post-court detention.
[54] Pertaining to these submissions, the defendants’ counsel presented
contrary views which I am in agreement with. I acknowledge the principles laid
down in De Klerk16, however I am mindful of the fact that each case is decided
on its own facts. Just to put issues into perspective, in De Klerk17, the CC held:
‘[62] The principle emerging from our jurisprudence can then be summarised as
follows: The deprivation of liberty, through arrest and detention, is per se prima facie
unlawful. Every deprivation of liberty must only be effected in a procedurally fair
manner but must also be substantively justified by acceptable reason s. Since Zealand, a
remand order by a Magis trate does not necessarily render subsequent detention lawful.
What matters is whether, substantively, there was just cause for the later deprivation of
liberty. In determining whether the deprivation of liberty pursuant to a remand order is
lawful, regard can be had to the manner in which the remand order was made.’
[55] In this matter, the first remand was to allow the plaintiff an opportunity to
solicit the services of a legal representative. The other postponements which

15 [2019] ZACC 32; 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC).
16 Ibid.
17 Ibid.

were not opposed by the plaintiff’s legal representative were for the purposes of
a formal bail application.
[56] The evidence shows that the prosecutor charged the plaintiff with
attempted murder only. The mistake about his previous conviction was not the
only factor in determining a s chedule. A crime of attempted murder falls under
schedule 1 in terms of the CPA, but also under schedule 5 in terms of bail
legislation, specifically where there is infliction of grievous bodily harm.
Therefore, only the magistrate can release the applicant on bail under schedule 5
if the interests of justice permit. The provisions of s 60 (11) (b) 18 of the CPA
which are couched in peremptory terms, fortify this aspect.
[57] In Minister of Law -and-Order v Kader 19, a case that this court was
referred to by the defendants ‘counsel, the SCA held:
‘It is the function of the judicial officer to guard against the accused being detained on insubstantial
proper grounds, in any event, to ensure that his detention is not unduly extended. ’
[58] The same principle was detailed in Sekhoto20, where the court held:
‘While the purpose of the arrest is to bring the suspect to trial, the arrestor has a limited role in that process. He
or she is not called upon to determine whether the suspect ought to b e detained pending trial. That is the role of
the court (or in some cases a senior officer). The purpose of the arrest is no more than to bring the suspect before
court so as to enable the roll to be performed.’
[59] Therefore, in this instance, there is n o evidence of an ulterior motive for
the defendants’ opposition of bail. Instead, the evidence suggests the state had

18 Section 60 of the CPA provides:
“(11) Notwithstanding any provision of this Act, where an accused is charged with an offence -
(b) referred to in Schedule 5, but not in Schedule 6, the cour t shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law, unless the accused, having been given a

reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice pe rmit his
or her release.” (emphasis added)
19 [1990] ZASCA 111;1991 (1) SA 41 (A) at 51A-C.
20 Fn 6 supra at 383 G-384 A.

information that the plaintiff might intimidate a witness if released. This
information was not “thumb sucked,” as suggested, it stemmed from a pattern of
alleged intimidation of the complaint on at least two occasions.
[60] Moreover, the prosecutor’s omission to add serious charges of robbery
with aggravating circumstances and intimidation at the plaintiff’s first
appearance supports the fact that the defendants had no ulterior motive to cause
the plaintiff’s further detention. Instead, the defendants acted within the
confines of the law in opposing bail on the basis there was a likelihood that one
or more of the provisions of s 60 (4) of the CPA21 would be compromised if bail
were not opposed. Therefore, this court finds that the arrest and subsequent
detention of the plaintiff, which includes the post - court appearance detention
were lawful.
Malicious prosecution against the defendants
[61] In terms of our law, the requirements of malicious prosecution are set out.
It is imperative that all these elements must be complied with. The SCA in
Minister of Justice and Constitutional Development and Others v Moleko
(Moleko)22 stated these requirements as:
1. the defendant must have sets the law in motion (instigate or instituted
the proceedings).
2. the defendants must have acted without reasonable and probable cause;

21 Section 60 of the CPA provides:
“(4) The interests of justice do not permit the release from detention of an accused where one or more of the
following grounds are established:
…
( c) where there is likelihood that the accused, if he or she were released on bail, will attempt to influence
or intimidate witnesses or to conceal or destroy evidence…”.
22 [2008] ZASCA 43; [2008] 3All SA 47 (SCA); 2009 (2) SACR 585 (SCA) para 8.

3. the defendant must have acted with malice (or animo injuriandi); and
4. the prosecution must have failed.
[62] According to the plaintiff’s particulars of claim, both defendants are
accused of having acted maliciously in setting the law into motion without any
reasonable and probable cause. These allegations are serio usly refuted by the
defendants.
[63] It is apposite to state that the National Prosecuting Authority (NPA) is a
single and independent body that derives its powers from the Constitution. In
terms of Section 179(2) of the Constitution, the NPA has the pow er to institute
and conduct criminal proceedings on behalf of the state and to carry out the
necessary functions incidental to instituting criminal proceedings. 23 The
NDPP’s duty is to hold the individuals accountable for their actions, deter crime
and protect the public from harm. She must maintain a fair and just society and
play a critical role in ensuring that justice is served for all. This mandate must
be exercised without fear, favour or prejudice.24
[64] The prosecutors including the NDPP are mandated to institute criminal
proceedings based on reliable and well -founded evidence. To initiate the
proceedings , they must assess whether there is reliable eviden ce to provide a
reasonable prospects of a successful prosecution. In short, prima facie evidence
must be established before a case is enrolled.

23 Section 20 of the National Prosecuting Authority Act provides-
‘(1) The power as contemplated in section 179(2) of the Constitution and all relevant sections of the
Constitution, to-
(a) institute and conduct criminal proceedings on behalf of the State.
(b) carry out the necessary functions incidental to the instituting and conducting criminal proceedings; and
(c) discontinue criminal proceedings, vests in the prosecuting authority and shall. For all purposes
exercised on behalf of the Republic.
24 Hololo v Minister of Police (5171/2017) [2024] ZAECMHC 92 at para 38.

[65] In this case, the arresting officer’s role ended when he handed the docket
over to the public prosecutor for consideration. With regards to the evidence
that the docket contained, Mr Gwedashe and Ms Nkwayimbana’s evidence hold
strong. Their opinions carry weight, backed by their extensive experience in the
field of prosecution. Given the prima faci e evidence pointing to the plaintiff as
the perpetrator, there was reasonable and probable cause to prosecute and set
the law in motion.
[66] Regarding an element of malice, I need not say much, the principles in
Moleko25 speak for themselves. At para 64, the court expressed malice as
follows:
‘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.’
[67] In this case, the plaintiff led no evidence to prove animus injuriandi on a
balance of probabilities. Even when the members of the first and second
defendants testified, no facts suggesting collusion or malicious prosecution were
put to them for comments. It then follows that the plaintiff’s claims must fail.
Order
[68] Consequently, the following order shall issue:
1. The plaintiff’s claims are dismissed with costs on Scale “A”, as
contemplated under Rule 67A read with Rule 69 of the Uniform
Rules of Court.


25 Fn 23 supra.

_______
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:

Counsel for the Plaintiff : Adv T W Magadlela
Instructed by : MN Ntshwaxa Attorneys Inc.
MAKHANDA

Counsel for the Defendant : Adv F Pertesen
Instructed by : State Attorney
Gqeberha

Heard on : 05 November 2025
Judgment Delivered on : 20 January 2026