2
JUDGMENT
TWALA J
Introduction
[1] The plaintiff, Mr Sibuyiselwe Mhlongo, sued the defendants, the Minister of Police
and the National Director of Prosecutions, out of this Court for damages arising from
his arrest, detention and prosecution from 2 June 2017 until he was released from
custody on 7 March 2018. The plaintiff was arrested without a warrant on a charge
of armed robbery by members of the South African Police Service after having been
pointed out as the person who committed the robbery by the complainant, Mr
Abongile Henesi. The plaintiff estimated its damages against the first defendant in
the amount of R9,520 000 and the second defendant R1, 500 000.
[2] The defendants are defending the action and deny that the arrest and detention of the
plaintiff was unlawful and that his prosecution was malicious. The defendants were
to start as the duty to begin rested with them and three witnesses were called.
Case for the Defendants
[3] Sergeant Amos Mduduzi Hlabangane (“Hlabangane”), a member of the South
African Police Service since 2006, testified that he was on duty doing night shift on
2 June 2017. Whilst doing his patrols, he recalls his Commander calling him back
to the station so that he could attend to a complaint of armed robbery. At the station
he found the complainant who informed him that he was robbed of his cellphone
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and a sum of R400 by about five people who pointed a firearm at him, but he can
identify one of them and he knows where he stays.
[4] Hlabangane testified that he took the complainant with him and his colleague, and
they drove to Nancefield Hostel as directed by the complainant where the
complainant pointed out the room where in the suspect was living . On entering the
room, the complainant pointed out the suspect which he immediately arrested. He
explained to the plaintiff that he is arrested for robbing the complainant, read him
his rights and took him to the police station where he locked him up. He did not find
any of the items of the complainant on the suspect at the time of his arrest.
[5] Hlabangane testified under cross-examination that he did not interview the plaintiff
at the time of his arrest and he last saw him on the day of arrest. He did not recall if
the complainant was in the company of someone else when he effected the arrest of
the suspect nor did he recall interviewing any other witness to the case. He exercised
his discretion in effecting the arrest as he did not doubt that the complainant pointed
out the right person immediately on entering the room where the plaintiff was living.
[6] Hlabangane stated that, although he did not remember everything that happened on
that day since this case happened a long time ago, he denied that he acted unlawfully
in arresting the plaintiff . He arrested the person who was pointed out by the
complainant and had no reason to doubt him since the incident was still fresh in his,
the complainant’s, mind. He did not know the complainant, the plaintiff and any of
the witnesses in this case and had nothing against the plaintiff that would cause him
to arrest him except for what was alleged by the complainant.
[7] Captain John Hlungwane (“Hlungwane”) testified that he has been a police officer
for the past thirty-three years and is now stationed in Lenasia South Police Station.
for the past thirty-three years and is now stationed in Lenasia South Police Station.
His duties are to supervise those working under investig ators by checking the
dockets and statements if they are written in the correct format. He met the plaintiff
for the first time in court on 5 June 2017 when a docket relating to the plaintiff’s
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case was allocated to him and he had to prepare it for the plaintiff’s first court
appearance which was on Monday, 5 June 2017.
[8] The plaintiff was arrested on Friday, 2 June 2017 and could only make his first court
appearance on Monday, 5 June 2017 since the courts do not sit on weekends.
Hlungwane testified that he looked into the docket and found that the statement of
rights was completed and signed by the plaintiff and that there was a statement by
the complainant and that of a witness, a Mr Ayanda Ngomane (“Ngomane”). He
placed the docket before the Senior Public Prosecutor (“the SPP”) for his decision
before the plaintiff made his first appearance. The SPP decided to enrol the case and
thereafter gave directions on what was outstanding and needed to be done on the
docket.
[9] Hlungwane testified further that he interviewed Ngomane to ascertain what had
happened and to ensure that the correct person was arrested. He could not trace the
other suspects even after he engaged his informers who were familiar with the
Nancefield hostel and its surroundings. He did not conduct an identification parade
as requested by the SPP since the complainant pointed out the suspect and the
witness Ngomane was also present when the suspect was pointed out and arrested.
He discussed the issue with the prosecutor who agreed with him that it was
unnecessary to convene an identification parade under the circumstances.
[10] As the investigating officer, Hlungwane deposed to an affidavit that he was not
opposed to the plaintiff being granted bail. But he could not grant bail to the plaintiff
for the offence he was charged with is a schedule 6 offence which requires the court
to deal with the issues of bail. Bail was refused by the court and the plaintiff
remained in custody until he was released in March 2018. The case could not
proceed since the complainant disappeared and could not be traced and his family
was not co-operating with the police.
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[11] Under cross examination he stated that he did not find it necessary to interview the
suspect. He read the statements in the docket and found that a firearm was used in
the robbery, and he was satisfied that a correct person was arrested because of the
pointing out of the suspect by the complainant and his witness. He did not interview
the community member for he refused to talk to the police, nor did he verify the
cellphone records if the plaintiff was at the scene at the time of the offence.
[12] Mr Bradely Ch epape (“Mr Chepape”), a regional court prosecutor based in
Carletonville, testified that his duties entail receiving dockets from members of the
South African Police Service, read them and decide if it should be enrolled or not
and if enrolled then it goes to court for first appearance. The iss ue of whether the
accused person is released on bail may be determined on that day or postponed to
another day pending further investigation.
[13] Mr Chepape testified that t he plaintiff was arrested after 20H00 on Friday, 2 June
2017 and his first court appearance was on Monday, 5 June 2017 since the courts do
not normally sit on weekends. The control prosecutor reads the statement of the
complainant in the docket to ascertain if there is a prima facie case against the
accused and in this instance, there was a prima facie case to answer for the
complainant’s statement stated that he was robbed on that day by a person whom he
could identify and in fact pointed him out to the police – hence the docket was placed
on the roll.
[14] Mr Chipape testified that he was satisfied with the pointing out of the suspect by the
complainant and his witness for it happened only a few hours after the actual robbery
was committed – hence there was no need for the investigating officer to conduct an
identification parade. The State did not oppose bail when the plaintiff made his first
appearance. But bail was refused by the court , the plaintiff having failed to
appearance. But bail was refused by the court , the plaintiff having failed to
demonstrate exceptional circumstances and that it was in the interest of justice that
he be admitted to bail.
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[15] The case proceeded being postponed since the witnesses could not be traced until it
was withdrawn in March 2018. There was a prima facie case for the plaintiff to
answer since there was a statement by the complainant and his witness in the docket
and therefore the prosecution was not malicious. The case was withdrawn not based
on the merits, but because, although the prosecution was ready to refer the case to
trial, the witnesses could not be traced or were not co-operating with the state.
[16] Under cross examination he persisted that he discussed the issue of the identification
parade with the investigating officer and came to the conclusion that it was not
necessary since the plaintiff was pointed out by the complainant in the presence of
the witness, Ngomane at the time of his arrest. He did not know why the other
prosecutors continued to demand that an identification parade be conducted. The
refusal to admit the plaintiff to bail was made by the court for it is the court that
decides the issues of bail in relation to schedule 6 offences.
[17] He testified that he read the complainant’s statement and that of the witness and
concluded that there was a case for the plaintiff to answer. However, the complainant
and the witness disappear ed and failed to co -operate with the state – hence the
withdrawal of the case and not on the merits – thus the prosecution was not
malicious. No wrong information was presented in court, and the plaintiff was
legally represented at all times, therefore his rights were not infringed in anyway.
[18] The defendants closed their case at this stage.
Case for the Plaintiff
[19] The plaintiff testified that he was arrested on 2 June 2017 at Nancefield Hostel and
was told he is arrested for armed robbery he committed with his friends against the
complainant, Abongile Hanesi. When he was arrested at the Hostel he was in the
company of other people and they were watching movies on a laptop. The police did
7
not find any of the items alleged to have been robbed from the complainant on him
nor the firearm that is alleged to have been used in the robbery.
[20] It was at this stage of the plaintiff’s testimony that the defendants raised objections
to the evidence being led since it was never put to the defence witnesses, during their
cross-examination, to give them an opportunity to rebut or agree to it. All that the
plaintiff did was to criticise the arresting officer for relying on the pointing out of
the plaintiff by the complainant and the inve stigating officer for not using the
cellphone records to ascertain whether the plaintiff was at the scene of the crime at
the time. Additionally, the plaintiff suggested that , at the time of his arrest, he was
in the company of other people watching some movies on a laptop.
[21] This, galvanised the defendants to object to the line of leading the plaintiff in his
examination in chief when an attempt was made to introduce new evidence to the
plaintiff’s case. Due to the persistence of the defendants’ ob jections, the plaintiff
applied for the postponement of the matter in order to bring a substantive application
to reopen the case of the defendants and recall all the three witnesses so that it may
put its case to the defendants’ witnesses. The defendants opposed the application.
[22] At the hearing of the application, which was set down separately from the main case,
I dismissed the application with the plaintiff to pay the costs. I undertook to furnish
my reasons therefore in my main judgment and the reasons follow below.
[23] In President of the Republic of South Africa and Others v South African Rugby
Football Union and Others 1 the Constitutional Court stated the following when
dealing with the issue of cross-examination:
“The institution of cross -examination not only constitutes a right, it also imposes certain
obligations. As a general rule it is essential, when it is intended to suggest that a witness is
not speaking the truth on a particular point, to direct the witness ’s attention to the fact by
1 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999)
8
questions put in cross-examination showing that the imputation is intended to be made and
to afford the witness an opportunity, while still in the witness box, of giving any explanation
open to the witness and of defending his or her character. If a point in dispute is left
unchallenged in cross-examination, the party calling the witness is entitled to assume that
the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by
the House of Lords in Browne v Dunn and has been adopted and consistently followed by
our courts.2
The precise nature of the imputation should be made clear to the witness so that it can be
met and destroyed, particularly where the imputation relies upon inferences to be drawn
from other evidence in the proceedings. It should be made clear not only that the
evidence is to be challenged but also how it is to be challenged. This is so because the
witness must be given an opportunity to deny the challenge, to call corroborative evidence,
to qualify the evidence given by the witness or others and to explain contradictions on
which reliance is to be placed.3”
[24] It is contended by the plaintiff that it was an error or omission on the part of his legal
counsel not to put all his version of his evidence that he was going to testify about
to the defendants’ witnesses during their cross-examination. There was no intention
on the part of the legal representative , so the argument went, to withhold such
evidence in order to prejudice the defendants. It is the plaintiff who would suffer
prejudice in this case if he were not afforded an opportunity to reopen the case of
the defendants in order to continue with his cross-examination.
[25] There is new evidence which the plaintiff would like to adduce which is in line with
the amended particulars of claim , which amendment the defendants did not object
to. The evidence which the plaintiff intends to lead , so the argument went, is
to. The evidence which the plaintiff intends to lead , so the argument went, is
intended to corroborate the evidence on the amended particulars of claim which
amendment took effect after the case was postponed for the bringing of this
substantive application to reopen the case of the defendants.
2 Ibid at para 61
3 Para 63
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[26] The defendants argued that they will suffer prejudice should they be forced to reopen
their case. Plaintiff had ample time during the three days of hearing to cross-examine
and put his case to the defendants’ witnesses to enable them to rebut or agree with
it. The plaintiff and his attorney, so it was contended, were seated in court throughout
the testimony of the three defendants’ witnesses and there is no explanation why
they did not remind counsel to put the plaintiff’s case to the witnesses. Since plaintiff
was in court all the time, he can now fabricate evidence to suit his case to the
prejudice of the case of the defendants.
[27] The plaintiff’s reliance on Rule 39 (11) of the Uniform Rules of Court is flawed, so
it was contended, for the subrule does not find application in the present case. Rule
39 applies in the determination of who of the parties bears the onus and the duty to
begin but not to reopen the case of a nother party. The plaintiff chose not to lead
evidence which was within its knowledge at all times and no cogent reasons have
been placed before court why plaintiff did not lead the evidence.
[28] It is trite that a court may, in exceptional circumstances and in the exercise of its
discretion and where it is demonstrated that it is in the interest of justice, grant an
order that a party reopen its own case to lead further evidence. The relevant
considerations amongst others being:
(a) The reason why the evidence was not led timeously.
(b) The degree of materiality of the evidence.
(c) The possibility that it may have been shaped to 'relieve the pinch of
the shoe'.
(d) The balance of prejudice, viz the prejudice to the plaintiff if the
application is refused and the prejudice to the defendant if it is granted.
(e) The stage which the particular litigation has reached. Where judgment
has been reserved after all evidence has been heard and, before
judgment is delivered, plaintiff asks for leave to lead further evidence,
judgment is delivered, plaintiff asks for leave to lead further evidence,
it may well be that he or she will have a greate r burden because of
factors such as the increased possibility of prejudice to the defendant,
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the greater need for finality, and the undesirability of a reconsideration
of the whole case, and perhaps also the convenience of the Court.
(f) The 'healing balm' of an appropriate order as to costs.
(g) The general need for finality in judicial proceedings.
(h) The appropriateness, or otherwise, in all the circumstances, of visiting
the fault of the attorney upon the head of his client.
[29] In Liberty Group L imited t/a Liberty Life v K & D Telemarketing and Others 4 the
Supreme Court of Appeal emphasi zed that the reopening of a party’s case after it
has been closed to lead further evidence is not a right but an extr aordinary
indulgence. Where a litigant has the opportunity to tender evidence but chooses to
provide insufficient evidence to sustain its case, it is ent irely its own fault, and the
reopening of its case cannot be used to tender evidence to patch up the gaps in a
weak case.
[30] However, the crux of this case is whether this Court has the power to order a party
to reopen its case at the instance of another party. Put differently, can the Court order
a party to reopen its case at the instance of the other party against that party’s will.
[31] It is well established that the court would grant an order for a party to reopen its own
case once certain requirements have been established. But this case is
distinguishable from the general rule in that here the plaintiff requests the court to
order the defendants to reopen their case against their will. Plaintiff has failed to
show any authority it relies upon that the court has the power to order a party, at the
instance of another party, to reopen its case. It is my respectful view that, the plaintiff
has had ample opportunity to cross-examine the defendants’ witnesses and put its
case to the witnesses but chose not to and that was at its own peril.
4 (1290/18) [2020] ZASCA 41 (20 April 2020)
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[32] It is undisputed that the plaintiff did not fully and fairly put its case to the defendants’
witnesses during cross-examination. However, there is no plausible explanation why
counsel did not put the case of the plaintiff to the defendants’ witnesses during
cross-examination except to say that counsel made an error. It is not sufficient to say
that counsel made a mistake since that alone does not equate exceptional
circumstances. The hearing proceeded for three -days, and three witnesses of the
defendants were cross-examined at length, but the case of the plaintiff was never put
to any of them.
[33] Much as the Court is not sitting as a referee to see to it that the rules of procedure
are observed and that one side does not take advantage of the other, but it is not
empowered to direct the litigants how to execute their individual strategies in the
conduct of their respective cases nor to order the litigants when to open or close their
cases. It is open to each litigant to present its full case when it is its turn and if it
chooses not to lead full and sufficient evidence to sustain in its case, it does so at its
own peril.
[34] As indicated above, ordinarily the reopening of a litigant’s case to lead further
evidence is not a right but an extraordinary indulgence which the court will accede
to under exceptional circumstances . Therefore, the court cannot come to the
assistance of a party who seeks an order for the reopening of the case of another,
who is unwilling and does not consent thereto. I hold the view therefore that there is
no fault that can be imputed against the defendants in the conduct of their case and
the plaintiff has failed to demonstrate the existence of any exceptional circumstances
in this case.
[35] In Salojee and Anothe r NNO v Minist er of Community Development 5 which was
quoted with approval in the unreported case of Sizwe Calvin Pumlani Mphati and
5 1965 (2) SA 135 (A)
12
Another v The Minister of Police 6, the Appellate Division, as it was then, stated the
following:
“I should point out, however, that it has not at any time been held that condonation will not
in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond
which a litigant cannot escape the results of his attorney’s lack of diligence or the
insufficiency of the explanation tendered. To hold otherwise might have disastrous effect
upon the observance of the Rules of this Court. Conside rations ad misericordiam should
not be allowed to become an invitation to laxity. In fact, this court has lately been burdened
with an undue and increasing number of applications for condonation in which the failure
to comply with the Rules of this Court was due to neglect on the part of the attorney. The
attorney, after all, is the representative whom the litigant has chosen for himself, and there
is little reason why, in regard to condonation of a failure to comply with a Rule of Court,
the litigant should be absolved from the normal consequences of such relationship, no
matter what the circumstances of the failure are.”
[36] It is not in dispute that the plaintiff was in court throughout the hearing of the
evidence of the witnesses for the defendants. However, there is no explanation why
he did not remind his counsel to put his case to the witnesses of the defendants.
Plaintiff has himself chosen the set of legal representatives to conduct the trial of
this matter and he cannot expect to be absolved from the consequences of his
relationship with his legal representatives . The unavoidable conclusion is therefore
that the plaintiff has failed to establish a case for the reopening of the case of the
defendants.
Discussion
[37] It is trite that the purpose of the pleadings is to define the issues and to ensure that
both sides to the litigation know the case they must meet. The evidence presented at
both sides to the litigation know the case they must meet. The evidence presented at
the trial must relate to the issues raised in the pleadings. In other words, the pleadings
6 Case No: 600/2021 Free State
13
must contain the material facts relied upon which are to be proven by the evidence
to be led at the trial of the matter.
[38] It is common cause that the plaintiff amended its particulars of claim and such
amendment was effected without any opposition from the defe ndants. However, as
indicated above, such an amendment does not amount to evidence but remains a n
allegation of facts which was to be proven by evidence at the trial. Since the plaintiff
did not lead evidence on the issues raised in the pleadings because of its counsel’s
error in not putting the case of the plaintiff to the defendants’ witnesses during cross-
examination, whatever is pleaded by the plaintiff remained allegation s which were
not proven by evidence . Put in another way, the plaintiff did not lead full and
sufficient evidence to sustain its case.
[39] In Small v Smith 7 the court stated the following when dealing with the issue of a
party who fails to put his case to the opposing party’s witness during cross
examination:
“It is, in my opinion, elementary and standard practice for a party to put to each opposing
witness so much of his own case or defence as concerns that witness and if need be to
inform him if he has not been notified thereof, that other witnesses will contradict him, so
as to give him fair warning and an opportunity of explaining the contradiction in defending
his own character. It is grossly unfair and improper to let a witness’s evidence go
unchallenged in cross-examination and afterwards argue that he must be disbelieved.
Once a witnesses’ evidence on a point in dispute has been deliberately left unchallenged in
cross-examination and particularly by a legal practitioner, the party calling that witness is
normally entitled to assume, in the absence of a notice to the contrar y, that the witness’s
testimony is accepted as correct. More particular is this the case of the witness is
corroborated by several others unless the testimony is so manifestly absurd, fantastic or of
corroborated by several others unless the testimony is so manifestly absurd, fantastic or of
so romantic a character that no reasonable person can attach any credence to it whatsoever”.
[40] It is undisputed that the plaintiff was arrested by members of the first defendant on
the 2 June 201 7 without a warrant and was detained until he appeared in court on
the 5 June 2017. Further, it is not in dispute that the arresting officer read the plaintiff
his rights at the time of arrest and he signed the statement of rights. The evidence of
7 [1954] (3) SA 434 (SWA) 438
14
Hlabangane is that the plaintiff was pointed out by the complain ant and his
companion, Ngomane. Hlabangane had no reason to disbelieve the complainant and
his companion in their pointing of the plaintiff for they informed him that they know
him and would be able to point him out if they see him. The plaintiff did not resist
the arrest nor protested his innocence at the time of arrest or any other time that day.
[41] The complainant informed Hlabangane that he knew where plaintiff stayed before
the police left the station – hence when they reached Nancefiel d hostel he pointed
out the shack wherein the plaintiff was staying and, although the plaintiff was with
other people in the shack at the time, on entering he immediately pointed him out to
the police as the culprit. The incident was fresh in the mind of the complainant since
the incident happened hours before the pointing out and plaintiff admitted that he
was wearing an overall jacket which had reflectors.
[42] The version of the police witnesses was never disputed by the plaintiff, nor did the
plaintiff tender any alternative evidence of his whereabouts on the day . In my
judgment the arresting officer , Hlabangane has exercised his discretion correctly
when he arrested the plaintiff for the commission of the crime of robbery as pointed
out by the complainant. There was nothing more for the arresting officer to do or to
doubt the pointing out of the plaintiff. It is not the case of the plaintiff either that he
protested his innocence at the time of his arrest. Plaintiff admitted that he was
wearing the overall jacket with reflectors at the time of his arrest.
[43] Since the arresting officer must , in terms of section 40 of the Criminal Procedure
Act8, have a reasonable suspicion that an offence has been committed and that
suspicion be based on reasonable grounds, I hold the view that the arresting officer
in this case did have a reasonable suspicion and exercised his discretion properly in
in this case did have a reasonable suspicion and exercised his discretion properly in
arresting the plaintiff base d on the complainant’s pointing out of the culprit. The
arresting officer did not know both the complainant and the plaintiff at the time and
8 51 of 1977
15
had no reason to punish the plaintiff or to be biassed in favour of the complainant -
thus, there was no impropriety or ulterior motive in arresting the plaintiff. Therefore,
in my view the arrest was not unlawful as claimed by the plaintiff.
[44] In Minister of Safety and Security v Tyokwana9 the Supreme Court of Appeal stated
the following when it was dealing with the issue of an arrest without a warrant:
“It is common cause that Kani, acting within the course and scope of his employment with
the appellant, arrested the respondent on 2 October 2007, without a warrant of arrest. As
justification for the arrest the appellant relies on s 40(1)(b) of the CPA, which provides that
a peace officer, such as Kani, may without warrant arrest any person whom he reasonably
suspects of having committed an offence referred to in Schedule 1 of the CPA. The crime
of theft is one of the offences listed in Schedule 1. To succe ed with this defence the
appellant is required to establish that Kani entertained a suspicion based on reasonable
grounds that the respondent had committed a Schedule 1 offence10.
[45] I do not agree with the contentions of the plaintiff that he was denied bail by the
court because the police officers charged him with a serious crime and placed
evidence before the court that made the court to refuse to admit him to bail. The
evidence is clear that captain Hlungwani who was the investigating officer in the
case deposed to an affidavit that the state was not opposing that the accused be
admitted to bail. He, as a police officer could not grant the plaintiff bail since the
offence the plaintiff was charged with requires the court to deal with the issues of
bail. However, the plaintiff failed to demonstrate to the court, as required by the law,
that it was in the interest of justice that he be admitted to bail – hence bail was
refused.
[46] I hold the view therefore that Hlungwane had done nothing wrong in relation to the
[46] I hold the view therefore that Hlungwane had done nothing wrong in relation to the
plaintiff being admitted to bail. He filed an affidavit not opposing bail and it was
therefore encumbered upon the plaintiff to convince the court that he is entitled to
9 (827/13) [2014] ZASCA 130 (23 September 2014)
10 Para 10
16
be released on bail. Additionally, the plaintiff had the right and ample time to appeal
the decision of the court refusing him to be admitted to bail or to approach the same
court on application if there were any new facts and place them before court to be
released on bail.
[47] There is no merit in the argument that the police delayed the release of the plaintiff
by not responding to the docket note s raised by the prosecutors that an identity
parade be held. The uncontroverted evidence of Hlungwane, which is corroborated
by the prosecutor, Mr Chepape, is that the pointing out of the plaintiff was conducted
by the complainant in the presence of his witness, Mr Ngomane – thus no purpose
would have been served by convening an identi fication parade for the plaintiff had
already been seen by the complainant and his witness. The ineluctable conclusion is
therefore that there was no improper conduct on the part of the police which resulted
in the plaintiff being detained for unnecessary long period. Thus, the detention of
the plaintiff until he was released in March 2018 was not unlawful.
[48] I do not disagree with counsel for the plaintiff’s contention that, if the arrest is
unlawful, everything that flows from it is unlawful , including the prosecution.
However, in this case, the evidence of Hlung wane which is corroborated by
Mr Chepape is that there was a statement by the complainant for the robber y
committed against him and the pointing out of the plaintiff, and that of the witness
Mr Ngomane in the docket. Having all these statements, there was no reason for the
prosecutor not to prosecute the case. In fact, Mr Chepape testified that the case was
ultimately withdrawn not because of lack of evidence but because the complainant
and his witness were not co-operating with the police – otherwise the state was ready
to prosecute the case.
[49] The plaintiff has failed to demonstrate that the defendants instituted and continued
[49] The plaintiff has failed to demonstrate that the defendants instituted and continued
with his prosecution wit hout reasonable and probable cause , with malice and the
prosecution terminated in his favour. The evidence pointed that the termination of
the prosecution against the plaintiff was not because of the failure of the prosecution
17
or lack of evidence to sustain a conviction, but it is because of the non -cooperation
with the state by the complainant and its witness . At the time the prosecution was
terminated, the evidence is that the state was ready to proceed with the case for there
was a prima facie case for the plaintiff to answer but for the complainant and his
witness.
[50] In Ledwaba v Minister of Justice and Constitutional D evelopment and Others 11
quoting with approval the case of Beckenstrater v Rottcher and Theunnissen 12 the
Supreme Court of Appeal stated the following:
“In Beckenstrater this Court held that:
‘When it is alleged that a defendant had no reasonable cause for prosecuting, I understand
this to mean that he did not have such information as would lead a reasonable man to
conclude that the plaintiff had probably been guilty of the offence charged; if, despite his
having such information, the defendant is shown not to have believed in the plaintiff's guilt,
a subjective element comes into play and disproves the existence, for the defendant, of
reasonable and probable cause.’13
There would, thus, be reasonable and probable cause for the prosecution where a defendant
is of the honest belief that the facts, available at the time of taking the decision to prosecute
the plaintiff, constituted an offence which would lead a reasonable person to conclude that
the person against whom charges are brought, was probably guilty of such offence. This
question must not be confused with whether there is sufficient evidence upon which the
accused may be convicted. That question would ultimately be for the court, in the criminal
trial, to decide at the conclusion of the evidence.14
The appellant sought in his testimony, in the malicious prosecution trial (the trial), to justify
his actions and prove his innocence. That is not the test for absence of reasonable and
probable cause in a malicious prosecution. Whether there was reasonabl e and probable
probable cause in a malicious prosecution. Whether there was reasonabl e and probable
cause for the prosecution depends on the facts or material which was at the disposal of the
prosecutor, at the time that the prosecution was instigated, and the careful assessment of
that information. The pertinent date would be that on whic h the prosecution applied for a
warrant of arrest for the plaintiff. In this case, that date is 11 October 2006. If there are
11 (947/2022) [2024] ZASCA 17 (16 February 2024)
12 1955 (1) SA 129 (A)
13 Ibid at para 136
14 Para 23
18
representations along the way, the prosecutor is obliged to carefully assess those
representations to decide whether to proceed with the prosecution or to withdraw the
charges.”15
[51] It is my resp ectful view therefore that the plaintiff has failed to demonstrate any
improper conduct and motive or procedural impropriety by the prosecution or
members of the first defendant in the conduct of this case.
Conclusion
[52] The unavoidable conclusion is that the arrest of the plaintiff was executed based on
a reasonable suspicion that an offence of robbery was committed by a person who
was known to and was pointed out by the compl ainant within hours of the
commission of the crime. The plaintiff was detained from the date of his arrest until
he was released not because there was improper motive or conduct on the part of the
members of the first defendant, but because he did not convince the court that there
existed exceptional circumstance for him to be admitted to bail or that the interests
of justice so demanded. Therefore, the arrest and detention were not unlawful.
[53] There was no malice in the prosecution of the plaintiff since there were statements
in the docket which established a prima facie case against him. Put differently, there
was a case for the plaintiff to answer. However, the case w as withdrawn and or
prosecution terminated against the plaintiff not because there was no evidence to
sustain a conviction but because the witnesses, including the complainant,
disappeared and failed to co-operate with the state. Thus , the prosecution of the
plaintiff was not unlawful.
15 Para 24
20
Delivered: This judgment and order was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to Parties
/ their legal representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The date of the order is deemed to be
15 January2026.